Argued: January 17, 2019
from the United States District Court for the Western
District of Michigan at Grand Rapids. Nos. 1:12-cv-00914;
1:12-cv-01338-Robert J. Jonker, Chief District Judge.
Nicholas Bostic, Lansing, Michigan, for Appellants.
Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for
Nicholas Bostic, Lansing, Michigan, for Appellants.
Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for
Before: MERRITT, GUY, and MOORE, Circuit Judges.
B. GUY, JR., CIRCUIT JUDGE.
are Lansing, Michigan residents whose homes were raided by
police and subsequently deemed uninhabitable. Police raided
the homes based upon search warrants for drugs, but once
inside, they invited building code compliance officers in as
well. Plaintiffs sued under 42 U.S.C. § 1983 alleging a
variety of constitutional claims against the police officers,
the compliance officers, and the City of Lansing. The
district court granted summary judgment for defendants on all
counts. We affirm in part and reverse in part.
Raids and Arrests
drug raids in Lansing appear to have followed a pattern. In
the course of their duties, police took notice of residences
where they believed drug trafficking was occurring. Through
controlled buys, confidential informants, trash pulls, and
direct surveillance, police officers amassed probable cause
to secure search warrants. Courts issued warrants and teams
of officers soon executed them. The searches were aggressive:
officers knocked in doors with rams, used flashbangs and,
according to plaintiffs, left the homes in complete disarray.
During or immediately following a search, a police officer
would sometimes call a housing code compliance officer
("inspector") to the scene. In some instances, the
inspector would soon appear and inspect the home. Reliably,
the inspector would find code violations such as water
heaters without inspection tags, bare electrical wiring, and
non-working smoke detectors. The inspector would then declare
the home unsafe for occupancy, which is often called
"red tagging." When a home has been red tagged, the
occupants must leave immediately and may not occupy the home
until the violations have been corrected.
pattern played out for each of the plaintiffs in this case.
They resided at four different Lansing homes and over the
course of eleven months each of their homes was searched and
red tagged. Some of the plaintiffs were arrested, but in each
case the charges were dismissed.
the residents, Henry Holsey, filed a federal § 1983 suit
against the City of Lansing, an individual police officer,
and an individual inspector. The rest of the plaintiffs filed
a single subsequent suit against other officers and
inspectors, along with the City. Given the cases'
similarities, the district court consolidated them, although
the two cases remained on separate active dockets.
discovery, defendants filed a motion for summary judgment in
each case. The district court granted summary judgment in
favor of defendants on all counts, except "to the extent
Defendants' Motion for Summary Judgment . . . seeks
summary judgment in favor of [the Defendant inspectors] on
Plaintiffs' claim that these Defendants failed to provide
a constitutionally appropriate post-deprivation review
process, and summary judgment in favor of the City of Lansing
on Plaintiffs' claim that the City of Lansing has a
policy and practice of failing to provide a constitutionally
appropriate post-deprivation review process[.]"
inspectors filed an interlocutory appeal, asserting that the
district court erred in not granting them qualified immunity.
Defendants then moved to stay the proceedings pending the
appeal. The district court granted the stay, explaining that
although there were good reasons to "keep the case
moving toward the imminent trial process" it would
instead exercise its discretion to stay the case principally
[T]he Court sees relatively few issues of fact in the case,
and believes a ruling from the Court of Appeals on the key
legal issues will be helpful in moving the matter to
conclusion, one way or the other. In particular, the Court
recognizes that the individual Defendants were using city
forms as part of the challenged red tag process, and so the
policy and practices claim, and the qualified immunity issues
are likely to raise common and potentially controlling legal
their statement of the parties and issues before this court,
the inspectors limited their appeal to a single question:
"whether the individual inspectors are protected with
qualified immunity from plaintiffs' due process
claims?" Briefing and argument followed, and we reversed
the district court's denial of qualified immunity and
remanded the case. Gardner v. Evans, 811 F.3d 843,
848 (6th Cir. 2016). The district court had reasoned that one
of our prior cases, Flatford v. City of Monroe, 17
F.3d 162, 167 (6th Cir. 1994), had clearly established that a
meaningful post-deprivation review process is
constitutionally required, and "that direct, personal
notice of such a process to affected individuals is also
required." Gardner v. Evans, No. 1:12-cv-1338,
2015 WL 403166, at *18 (W.D. Mich. Jan. 28, 2015)
(Gardner I). We held, however, that
Flatford was distinguishable and concluded that
"any inadequacies in the notice provided by the
Inspectors would not have been apparent to a reasonable
official solely upon the basis of Flatford."
Gardner, 811 F.3d at 847. Accordingly, we stated:
For purposes of deciding this case, we need not determine
whether the red-tags provided by the Inspectors meet the
constitutional notice standard that we have just outlined.
Even if we assume, without deciding, that the Tenants are
correct and that the red-tags were constitutionally infirm,
the Tenants cannot satisfy the second prong of the qualified
immunity analysis, namely, whether this constitutional notice
requirement was clearly established.
contours of the remand proved contentious. Defendants
asserted that the only matter properly left for the district
court to decide was whether the content of the notices given
to plaintiffs after their homes were red tagged were
"constitutionally sufficient to satisfy post-deprivation
due process." Plaintiffs conceded that this court's
decision immunized the inspectors against claims about the
content of the notices, but they insisted that there was
still an open question as to their immunity. Plaintiffs
asserted that they could still prevail on the theory that the
inspectors failed to give post-deprivation notice of any
kind-a theory they admittedly had not raised until that
point. Given the theory's belated introduction, the
district court declined to permit an amendment to the
pleadings or further discovery and simply allowed plaintiffs
and the City to file cross motions for summary judgment.
plaintiffs and the City each filed motions for summary
judgment. The district court granted the City's motion
and denied plaintiffs'. It then entered judgment in favor
of all named defendants and against all named plaintiffs,
based upon both its pre-appeal and post-appeal opinions.
Invalid Search Warrants
initial searches in this case were made pursuant to warrants.
The evidence supporting each warrant varied, and we discuss
each below. Our standard for reviewing them, however, is
common to all.
Fourth Amendment requires warrants to be supported by
"probable cause," which we have defined as
"reasonable grounds for belief, supported by less than
prima facie proof but more than mere suspicion [that] there
is a fair probability that evidence of a crime will be
located on the premises of the proposed search."
United States v. Jackson, 470 F.3d 299, 306 (6th
Cir. 2006) (internal citations and quotation marks omitted).
We judge an affidavit that supports a warrant "on the
totality of the circumstances, rather than line-by-line
scrutiny" to ensure that the judicial officer who issued
the warrant could properly consider the "veracity and
basis of knowledge of persons supplying hearsay
information" and properly determine that there was
"a fair probability that contraband or evidence of a
crime will be found in a particular place." Id.
(quoting United States v. Williams, 224 F.3d 530,
532 (6th Cir. 2000)).
W. Hillsdale - The Gardner House
police officers' information led to the search of William
Gardner's house on Hillsdale Street. According to a
police report, on December 3, 2009, Officer Lynne Mark of the
Mason Police Department received an in-person tip from a
citizen. The citizen identified himself and explained that a
family member had been held at gunpoint over a drug deal. The
citizen gave Officer Mark a note that read, "Oxicotton -
Irma Gardner Hillsdale Lansing" and consented to be
contacted by the police if necessary. The next day, Officer
Mark verified that one "Erma Gardner" indeed lived
on that street, so Mark passed the information along to the
Lansing Police Department, which has jurisdiction over the
address. The report came to Lansing Police Officer Jason
Evans. According to Officer Evans's affidavit, he picked
up the trash in front of the Hillsdale house on December 9,
2009. In it he found cocaine residue, a used syringe tube,
and packaging materials which, in Evans's experience, are
the type used in drug trafficking. Evans also found residency
paperwork linking one "Erma G. Williams" to the
address, and he stated that a search in the police
department's record system confirmed that "Erma G.
Williams" and "Irma Gardner" are the same
person. A Lansing district court judge signed a search
warrant based upon Evans's affidavit on the same day that
Evans searched the trash, and the warrant was executed the
Gardner attacks the warrant on three grounds. He contends
that the affidavit lacked enough information to connect Irma
Gardner to the address, the informant was not reliable, and
the information was stale by the time the warrant was
executed. We reject all three arguments.
begin, the warrant was not stale. Although the record does
not reveal when the citizen tipster's family member was
held at gunpoint, it was evidently urgent enough that he
approached the Mason police officer at a chamber of commerce
event to report it. After he did, the police moved swiftly to
obtain and execute the warrant. There was also enough
evidence to link Erma Gardner to the address because the
warrant did not hinge solely on the informant's
information. The subsequent trash pull revealed evidence that
Erma Gardner indeed still lived at the address and at least
someone in the home was handling drugs. The trash pull also
made the informant's reliability a non-issue. Armed with
the informant's tip, Officer Evans confirmed that there
was good reason to believe drug activity was happening in the
home. Accordingly, the district court properly found that
probable cause supported the warrant.
Karen Street - The Hudson House
Hudson owned his home on Karen Street and in 2010 he lived
there with family members Roosevelt and Javon Hudson. James
Hudson had a history of dealing drugs from the Karen Street
house. According to Lansing Police Officer John Cosme's
affidavit, Hudson was arrested at the same address in 2006
after a warranted search turned up heroin, marijuana, crack
cocaine, and ten firearms. So, when in April 2010 an
anonymous source informed Cosme that the home was again being
used as a drug house, Cosme visited the address. There he
observed five garbage bags on the curb in front of the home.
He asked the garbage truck driver to deliver the bags to a
separate truck parked nearby. Cosme searched the garbage bags
and found a baggie with cocaine residue along with residency
paperwork for Hudson. A magistrate signed a warrant based
upon the affidavit on April 30, and it was executed that same
Hudsons challenge the warrant on staleness grounds. When the
district court rejected this argument, it observed that the
"crime at issue was drug trafficking from a particular
residence-more a regenerating conspiracy by an entrenched
criminal from a secure operational base than a fleeting
encounter." Gardner I, 2015 WL 403166, at *13.
The court thus concluded that under our decision in
United States v. Frechette, 583 F.3d 374 (6th Cir.
2009), "the information in the affidavit was not
concerned a search warrant for child pornography that was
based on an online purchase made 16 months earlier and linked
to a specific street address. Frechette, 583 F.3d at
377. We reasoned that "child pornography is not a
fleeting crime" and thus "the same time limitations
that have been applied to more fleeting crimes do not control
the staleness inquiry for child pornography."
Id. at 378 (quoting United States v. Paull,
551 F.3d 516, 522 (6th Cir. 2009)). We contrasted this with
drug trafficking crimes, where evidence goes stale more
quickly "in the absence of information indicating an
ongoing and continuing narcotics operation."
Id. (quoting United States v. Kennedy, 427
F.3d 1136, 1142 (8th Cir. 2005)). When a criminal enterprise
is ongoing at the same location, "the passage of time
becomes less significant." United States v.
Greene, 250 F.3d 471, 481 (6th Cir. 2001).
the warrant was issued 20 days after Cosme discovered the
baggie. The only other evidence of an ongoing operation was
the drug activity from four years earlier. A finding of
probable cause is therefore tenuous. We decline to resolve
the matter, however, because even if the evidence was too
stale to establish probable cause, we conclude that "the
warrant [was not] so lacking in indicia of probable cause
that official belief in the existence of probable cause [was]
unreasonable." Mills v. City of Barbourville,
389 F.3d 568, 577 (6th Cir. 2004). Accordingly, we affirm the
district court's grant of summary judgment to Cosme as to
the search claim on the basis of qualified immunity.
Bensch Street - The Louden House
buys led to the search of Keosha Louden's home. According
to Lansing Police Officer Dylan Zehr's affidavit, he had
been investigating suspected drug trafficking from
Louden's Bensch Street home. On April 15, 2010, he staged
a controlled buy. After searching a confidential informant
and equipping him with prerecorded currency, Zehr dropped the
informant off near Louden's home with instructions to
purchase crack cocaine inside. The informant met with a man
outside the home and the two went in. They reemerged soon
after and the informant got back into Zehr's car. The
substance given to the informant within the home field-tested
positive for cocaine. On the basis of this information, a
magistrate signed a search warrant for the home on April 16,
and it was executed that same day.
Louden challenged the validity of the warrant in the
complaint and identified it as an issue on appeal, she did
not pursue any discussion of it in her briefs. We therefore
consider the argument abandoned.
Pompton Circle - The Holsey House
lengthy investigation of another suspected drug dealer, a man
named Woods, led police to Henry Holsey's home on Pompton
Circle. According to Lansing Police Officer Aaron
Wieber's affidavit, on March 30, 2009, Lansing police
witnessed Woods sell cocaine to a confidential informant.
When the deal was over, the police followed Woods as he drove
to and then entered 914 Pompton Circle. Nine days later, the
confidential informant arranged another purchase from Woods.
This time, police were watching the Pompton house. They
observed Woods's car there and watched him go directly
from the house to the drug deal. When the deal was over,
Woods returned to the Pompton house. A week later, the police
staged another controlled buy with Woods. Although this time
he came to the deal from another location, he again went
directly to Pompton after the deal was over. Later that
month, the Federal Drug Enforcement Agency used a camera to
monitor the Pompton house and agents observed Woods come and
go from the house, without knocking, at least 20 times. More
controlled buys followed, but for these, Woods came and went
from a separate address on Michigan Avenue. On June 17, 2009,
however, Woods departed the Michigan Avenue address, spent
fifteen minutes at the Pompton house,  and then returned
to Michigan Avenue.
his affidavit, Officer Wieber averred that Woods was likely
using both the Pompton address and the Michigan Avenue
address in furtherance of his drug-trafficking operation.
Based on the affidavit, a Lansing district court judge signed
a search warrant ...