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McLeod v. Benjamin

United States District Court, W.D. Michigan, Southern Division

November 28, 2016

HEATHER McLEOD (formerly Wright), individually and as next friend for CPW, a female minor, SPW, a male minor and KEW, a female minor, Plaintiffs,
v.
MICHAEL BENJAMIN, MICHAEL SALMEN, KEVIN ROD, ROBERT BILACIC, DAVID BOWER, THOMAS DRAVES, JAMES LASS, ANDREW BUCKHOLTZ, UNKNOWN CMET OFFICER #1, UNKNOWN CMET OFFICER #2, UNKNOWN CMET OFFICER #3, Defendants.

          OPINION REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE

         I. STATEMENT OF FACTS

         A. Obtaining the Warrant

         On June 20, 2012, Defendant Andrew Buckholtz obtained a warrant to search the residence at 4602 Charles Road in Ionia County and all vehicles, outbuildings, and camping trailers located on the property. (ECF No. 39-4 at PageID.432.) The warrant authorized a search for Robert Conley, a suspected methamphetamine manufacturer and distributor, as well as fruits and instrumentalities of a medical marijuana grow operation. (Id.)

         Buckholtz's affidavit was based primarily on information provided to Buckholtz by Detective Sergeant Morey. (Id.) Paragraph M[1] of the affidavit seems to state that a Confidential Source (CS) told Detective Morey about Conley and the marijuana, and that Detective Morey relayed this information to Buckholtz, who then relayed it to the State magistrate. Paragraphs P through U detail what the CS “advised, ” but Buckholtz does not claim to have heard this information first hand. In Paragraph Z[2] Buckholtz claims to have personally interviewed the CS, and Buckholtz gives no detail as to what the CS may have said in an interview.

         A magistrate issued the warrant, and Morey contacted Defendant Detective/Sergeant Michael Benjamin of the Michigan State Police and requested an Emergency Support Team (EST) to aid in the execution of the warrant. (ECF No. 44-8 at PageID.774.)

         B. Execution of the Warrant

          Morey, Buckholtz, and Benjamin briefed the Michigan State Police EST members. (ECF No. 45-3 at PageID.8 44.) Benjamin and Bower both read the warrant. (ECF No. 45-2 at PageID.819 and ECF No. 44-8 at PageID.778.) None of the other Defendants read the warrant or affidavit. The EST consisted of

. Defendant MSP Detective/Sergeant Michael Benjamin - “Call leader” for the raid; gathered team and briefed them before executing the warrant; carried a shotgun on the raid; appears to be the eighth member to enter the house on the video footage.
. Defendant MSP Trooper Robert Bilacic - “Sub 4”; carried a carbine or submachinegun on the raid. (ECF No. 45-1 at PageID.799.)
. Defendant MSP Lieutenant David Bower - Unit commander; did not carry a long gun or a shield during the raid. (ECF No. 45-2 at PageID.826.)
. Defendant MSP Lieutenant Draves - “Sub 3”; carried a carbine or submachinegun on the raid. (ECF No. 45-3 at PageID.845)
. Defendant MSP Trooper Carlos Fossati - “Hands”; carried a ram tool on the raid. Not named as a defendant. (ECF No. 45-4 at PageID.858.)
. Defendant MSP Lieutenant James Lass - “Shield 2”; carried a shield on the raid. (ECF No. 45-5 at PageID.869.)
. Defendant MSP Lieutenant Kevin Rod - “Hands”; did not carry a long gun or shield during the raid. (ECF No. 45-6 at PageID.882.)
. Defendant MSP Sergeant Michael Salmen - “Shield 1”; carried a shield on the raid. (ECF No. 45-7 at PageID.893.)
. Sergeant MSP Brain Keely - “Perimeter”; wore a ghillie hat and carried a rifle on the raid. Not named as a defendant.

         The EST executed the warrant early in the morning of June 21, 2012. The team first located Conley in a trailer on the property and secured him with handcuffs. (ECF No. 45-4 at PageID.857.) The team then moved in to search the Wright residence itself. McLeod and her three children were in the house at the time. Plaintiff SPW is McLeod's son and was about eight years old; he was asleep in his own room when the EST entered the house. (ECF No. 44-5 at PageID.727.) Plaintiff CPW is McLeod's oldest daughter, and was eleven years old; she was asleep in her room with KEW at the time of the search. (ECF No. 44-1 at PageID.644.) Plaintiff KEW is McLeod's youngest daughter; two years old at the time of the search. (Id.)

         The team entered the house through an unlocked sliding door on the porch and almost immediately encountered McLeod in the living room of the house. (ECF No. 44-1 at PageID.643.) An unidentified member of the team ordered McLeod to lie face down on the ground; she complied and a team member cuffed her hands behind her back. (Id.) Other members of the team continued to search the rest of the house. Some number of the Defendants entered SPW's room. (ECF No. 44-5 at PageID.736.) One of these Defendants pulled SPW from his bed and pushed SPW against a wall in his room. (Id.) CEW and KPW emerged from their room and joined McLeod in the living room area. (ECF No. 44-1 at PageID.644.) SPW came out of his room and entered the living room shortly thereafter. (Id.).

         McLeod testified that she was lying face-down on the ground with her hands cuffed behind her back when a member of the EST pulled her wrists upwards to lift her up to her feet. (ECF No. 44-1 at PageID.635; 644.) McLeod was unable to identify the specific person who pulled on her wrists, only recalling that the person was wearing black, did not have camouflage, and was holding a weapon, rather than a shield. (Id. at PageID.670.) The pulling on her wrists caused a great deal of pain in her shoulder. (Id. at PageID.669.)

         SPW testified that he saw a policeman “help her up” off of the ground, but did not see if this caused any kind of injury or pain. (ECF No. 44-5 at PageID.746.)

         Defendant Bower testified that he never saw anyone actually cuff McLeod or pull her up from the ground, but that he saw Defendant Benjamin “addressing” and “securing” her. “At some point [Benjamin] had to put flex cuffs or cuffs of some type on [McLeod]. And then [Benjamin] moved [McLeod] from the floor to the couch upon [Bower's] direction.” (ECF No. 45-2 at PageID.827.) None of the other officers recalled who handcuffed McLeod, who helped her to her feet, or what, if any, injury this caused. (ECF No. 44-8 at PageID.782; ECF No. 45-1 at PageID.811; ECF No. 45-3 at PageID.850; ECF No. 45-4 at PageID.863; ECF No. 45-5 at PageID.872; ECF No. 45-6 at PageID.883; ECF No. 45-7 at PageID.895.)

         This same Defendant directed McLeod to sit on a couch and removed her handcuffs. McLeod and the three children remained on the couch while the team finished clearing the house. (Id. at PageID.645.) Other investigators moved into the house to continue executing the search, and the EST moved out. The EST Defendants spent a total of about ten minutes inside the Wright residence. (ECF No. 44-3 at PageID.688.)

         II. CLAIMS AGAINST DEFENDANT BUCKHOLTZ

         A. Unreasonable Search ...


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