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Newell v. County of Wayne

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

March 31, 2017

RENEE NEWELL, Plaintiff,


          Denise Page Hood Denise Page Hood Chief Judge


         Plaintiff Renee Newell filed this 42 U.S.C. § 1983 action on November 5, 2012, alleging that Defendants violated her constitutional rights when they obtained an illegal search warrant from a state court magistrate pursuant to an application that contained intentionally false statements and omissions.

         On April 11, 2016, Defendant Ira Todd (“Todd”) filed a Motion for Summary Judgment. [Dkt. No. 120] On April 15, 2016, Defendants Benny Napoleon (“Napoleon”) and County of Wayne (“Wayne County”) filed a Motion for Summary Judgment [Dkt. No. 121], Defendants Alex Chahine (“Chahine”) and Ray Johnson (“Johnson”) filed a Motion for Summary Judgment [Dkt. No. 122], Defendant Don Farris (“Farris”) filed a Motion for Summary Judgment [Dkt. No. 123], and Defendant Dennis Richardson (“Richardson”) filed a Motion for Summary Judgment. [Dkt. No. 124] Plaintiff filed a response to the motions filed by Todd, Richardson, and Napoleon and Wayne County, and those Defendants have filed reply briefs. Plaintiff did not file a response to the motions filed by Farris or Chahine and Johnson. The Court held a hearing on the motions on July 27, 2016. On August 4, 2016, a Motion for Order Regarding Exhibit 7 to Docket Number 131 was filed by Napoleon, Richardson and Wayne County. [Dkt. No. 138]

         For the reasons that follow, the Court grants the summary judgment motions filed by Napoleon and Wayne County, Richardson, Chahine and Johnson, and Farris. As to Todd and Richardson, Plaintiff alleges and offers evidence that Todd included, and Richardson was aware of, several erroneous statements in the search warrant affidavit. Whether such errors were simply negligent, reckless or intentional is a question for the trier of fact and the summary judgment motions filed by Todd and Richardson are denied. The Court also denies the motion for order filed by Napoleon, Richardson and Wayne County.


         A. The Investigation

         Plaintiff was employed by the Wayne County Sheriff's Department (the “Department”) as the Jail Monitor/Internal Compliance Manager for the Wayne County Jail until she was fired on May 26, 2012. According to Plaintiff, she was fired for blowing the whistle on wrong-doing with jail commissary funds and hiring; according to Defendants, she was fired for violating jail policy, engaging in misconduct, and lying during an internal affairs investigation. About two months after she was terminated, Plaintiff became the subject of an investigation into various communications made to Napoleon and others, some of which indicated that Eric Smith (who was then an executive in the Sheriff's Department) needed to be fired. Dkt. No. 129, Ex. 2, at 37.

         On July 20, 2012 a defamatory e-mail, with a PDF attachment, was sent by a person identified under the fictitious name TomTruth falsely accusing the Sheriff's Executive Chief, Eric Smith of being arrested and charged by the U.S. attorney on federal drug offenses (the “TomTruth email”). Dkt. No. 124, Ex.1. The email, which was sent to the private and county email addresses of Sheriff Napoleon and members of his command staff, stated the following:

Enclosed you will find an authentic criminal docket of an open federal criminal case against your Executive Chief of the Wayne County Sheriff's Office, Eric V. Smith. In 1995, Smith was caught, arrested, and charged with being in the possession of cocaine with the intent to distribute. Being that you are affiliated with the Wayne County Sheriff's Office, I believe you should be made aware of this critical information about your Executive Chief. Note that a $50, 000 unsecured bond was posted and the case froze, open. That can only happen with a large amount of money and superior connections. Nevertheless, the fact remains that Wayne County Sheriff's Executive Chief Eric V. Smith was caught with cocaine in his possession which he intended to distribute. Please feel free to verify the authenticity of the document Office of U.S. Attorney, 313-226-9100

         Todd maintains that whoever sent or assisted in sending the email had access to both county and personal email addresses of command staff and appointees. Dkt, No. 124, Ex. 2 at 99. The TomTruth email referenced a criminal docket sheet from PACER (USA v. Smith, Case No. 95-mj-80993) that was included as an attachment saved as a PDF. The docket showed Eric V. Smith as the defendant in a criminal prosecution by the United States Attorney for federal drug charges. Dkt. No. 124, at Ex. 1.

         Soon after the TomThumb email, Napoleon began to receive text messages to his personal cell phone that said that, unless Napoleon fired Eric Smith, his political career would be over. Dkt. No. 124, at Ex. 3. When Napoleon began receiving the texts on July 23, 2012, the person sending the texts did not give any name.

         Investigators only became aware of the name “Michael Bowles” (later determined to be Sam Saleh) after Newell's home was searched. Dkt. No. 124, Ex. 2 at 158, 239; Ex. 5 at 110. The texts, which came from cell phone number (248) 579-3263 stated the following:

Your political career is at stake. You need to call for Erics resignation. Your voting block will not support you after the series of news releases...” (Sent July 23, 2012)
We are allowing you to step forward without PAIN and SHAME. We are prepared for any resistance…” (Sent July 23, 2012)
Wish you well BEFORE PRIMARY. By the way Eric and Art Blackwell had an interesting conversation that was picked up. We gave advance warning. You have been QUOTED via your text “I WILL GO DOWN WITH THE SHIP I sincerely hope you can defend ES fraudulent activities. (Sent July 30, 2012)
Do self a favor Eric leaves save your career. FBI is on your office. This is why 7 News held off reporting. You do not want the skeletons out. Yes we have 20 years of your misconduct acts. (Sent August 2, 2012.)

Dkt. No. 124, Ex. 3. At some point, Napoleon spoke on the phone with the person later known as Michael Bowles, and Napoleon told that person he knew that such person was responsible for the Tom-Truth email. Docket No. 129, Ex. 7. Napoleon ordered an investigation shortly after receiving the first two texts and the TomTruth email. Dkt. No. 124, Ex. 4 at 37-38. The investigation was unusual in that it was directly ordered by Napoleon. Dkt. No. 129, Ex. 1 at 30-31.

         Richardson, the Deputy Chief, oversaw the investigation, and he received and reviewed reports and directed activities. Dkt. No. 129, Ex. 1, at 25-26, 29, 35; Ex. 3 at 27, 29, 34, 36, 39-40; Ex. 4 at p. 63. The investigation was kept confidential-even within the Department and its Internet Crimes Unit (“ICU”). Dkt. No. 129, Ex. 3 at 34; Ex. 5 at 13). Todd, a Detroit Police Department officer on special assignment to the Department, was the officer in charge of the investigation, and he reported directly to Richardson. Dkt. No. 129, Ex. 3 at 36; Ex. 1 at 163, 166; Ex. 12 at 42). Richardson contacted the ICU and asked Sgt. William Liczbinski (“Liczbinski”), supervising officer of the ICU, to review the TomTruth email and determine whether he could identify who sent it. Dkt. No. 129, Ex. 1 at 48; Dkt. No. 124, Ex. 6 at 28.

         Liczbinski told Richardson that he could not determine who authored or sent the email because it was sent through a TOR server, which anonymizes emails. Dkt. No. 129, Ex. 4 at 28-31, 34, 37-46, 51-54, 69-75. According to Liczbinski, it was virtually impossible to find out the identity of a person sending email through a TOR network because the message would travel through a channel of hundreds of thousands of computers all over the world, bouncing from server to server, becoming encrypted and re-encrypted until finally it would randomly be delivered through an exit node. Dkt. No. 124, Ex. 6 at 43-44. Liczbinski also opened the PDF and examined the properties of the document that accompanied the TomTruth email. The name “Renee Newell” was listed as “author.” Dkt. No. 124, Ex. 6 at 30, 49; Ex. 7. Liczbinski testified that Plaintiff's name appearing as “author” on the PDF meant that “the document was authored on a computer that was registered to a Renee Newell” or “it was authored on a computer where the software was registered to a Renee Newell.” Dkt. No. 124, Ex. 6 at 69-70. Although Liczbinski did not think that proved that Renee Newell was in fact the author, he agreed that it gave “some indication of the author or the possible author.” Id. at 30. Liczbinski was not an actual investigator on the case, nor was he the affiant on the search warrant, and he was not aware of all of the facts and details of the investigation. Id. at 76. Richardson told Liczbinski to keep all the information secret and not tell anyone. Dkt. No. 129, Ex. 4, at 51-54, 63. Liczbinski complied and never told anyone else about his findings, including Todd. Id. at 63.

         Richardson then contacted Johnson, a corporal in the ICU, and they met in Eric Smith's office. Johnson told Richardson and Eric Smith that he could not determine the source of the email because it was sent through a TOR server. Dkt. No. 129, Ex. 3 at 27. Johnson made a copy of the text messages between Napoleon and “Michael Bowles, ” and Johnson provided a report and a disk of the text messages to Richardson. Id. at 29. Richardson then talked with Todd about details of the ICU investigation and the threatening text messages Napoleon had received. Dkt. No. 129, at 74-75, 100.

         B. The Search Warrant

         Todd signed the search warrant for Plaintiff's house and the supporting affidavit after review and input from Defendants. Dkt. No. 129, Ex. 12 at 69, 110.

         Although the IP address came back as anonymous, Todd thought the appearance of Newell's name on the PDF was significant, stating: “That's not a common name, you know, and so I concluded it was the same Renee Newell.” Dkt. No. 124, Ex. 2 at 165-66. A data search revealed that Plaintiff was the only Renee Newell in Detroit. Id. at 285. Todd also reviewed a letter that Plaintiff wrote to Napoleon prior to her termination, wherein she claimed she had been set up. Dkt. No. 124, Ex. 11 at 1-3. In the letter, Plaintiff blamed several members of the Department's executive staff, stating that they were out to get her. She also was highly critical of Eric Smith, telling Napoleon that Eric Smith viewed himself as the real boss of the Wayne County Jail and that Eric Smith would “straighten things out” if Napoleon ever tried to challenge him. Id. at 13.

         Todd reviewed an email from Plaintiff expressing contempt for Eric Smith and others, in which she stated:

Surely after all this stuff I've been through, the last thing I need is to be * * * thrown on the ground, belly slammed, handcuffed and arrested. Although I'm sure that would make Owen, Heard, Smith and Pfannes's day, maybe a couple of others.

Dkt. No. 124, Ex. 12. Based on this evidence, Todd thought there was sufficient evidence to believe that Newell was involved:

I think she was pointing fingers at everybody, especially Eric Smith. She held them responsible so she was trying to dig up this dirt and these different lies on different people because she was upset and she wanted revenge. And she had access to everybody's e-mail account, everybody's. Because it went out to a lot of executives so I mean who else would have had that kind of access from outside of the office. I believe she had access to that. The language in the -- I did read a document of a letter that she wrote to Benny Napoleon and to Captain Bulifant. The language was similar to the language in the e-mail that Tom Truth sent. There were a number of things that pointed me at Renee Newell at that time.

Dkt. No. 124, Ex. 2 at 288-90.

         In the search affidavit prepared by Todd, he indicated that there was “probable cause to believe that Renee Newell fraudulently converted, transmitted, and/or created and authored a fictitious email address and attached documents…” Dkt. No. 124, Ex. 10. Todd stated: “I didn't need to know beyond a reasonable doubt. . .I just needed probable cause . . . I was trying to satisfy that probable cause standard.” Dkt. No. 124, Ex. 2 at 286-87. In the search warrant affidavit, Todd swore that Plaintiff authored the attachment to the Smith email. Dkt. No. 129, Ex. 9; Ex. 12 at 78, 80-83, 88; Ex. 4 at 51-54, 75. As Todd testified at his deposition, Liczbinski had not said that; rather, Liczbinski told Todd that he could not tell if Plaintiff authored the attachment. Dkt. No. 129, Ex. 12 at 78, 80-83. In his affidavit, Todd stated, in part:

On 7-20-12, Sgt. William Liczbinski of the Internet Crimes Unit conducted an investigation into the origin of the email. Sgt. Liczbinski was able to determine that the email was sent using a TOR Server to disguise the email address. However, Sgt. Liczbinski was able to determine by examining the properties of the attached document that the document was authored and created by Plaintiff on 7-20-12 at 12:12:24 am and the emails were sent out at around 1:37am.

Dkt. No. 129, Ex. 9 at 3.

         In addition to the statement about who “authored and created” the document attached to the email, that sentence also contains an error about when “the emails” were sent out. Dkt. No. 129, Ex. 10. Based on the exhibits, it appears that only one email was sent out, and it was sent out at 1:37 p.m., not 1:37 a.m. Dkt. No. 129, Ex. 8; Ex. 10. Todd restates these errors later in his affidavit:

Finally, Investigators were able to determine that the document authored by Plaintiff was created at 12:12:24 am and the email was sent at 1:37 am. Because of the late hours and the document being created in the middle of the night, it is reasonable to believe that the documents were created at Plaintiff's residence, located at 18627 Snowden, Detroit, MI.

Dkt. No. 129, Ex. 9 at 4. Todd did not include any information in the search warrant affidavit about the person later learned to be “Michael Bowles” or the communications that person had with Napoleon, including Napoleon's belief that he knew the person later learned ...

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