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Gardner v. Evans

United States Court of Appeals, Sixth Circuit

April 4, 2019

William Russell Gardner, et al., Plaintiffs-Appellants,
v.
Jason Evans, et al., Defendants-Appellees. Henry Lee Holsey, Plaintiff-Appellant,
v.
Aaron Wieber, et al., Defendants-Appellees.

          Argued: January 17, 2019

          Appeal 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.

         ARGUED:

          J. Nicholas Bostic, Lansing, Michigan, for Appellants.

          Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees.

         ON BRIEF:

          J. Nicholas Bostic, Lansing, Michigan, for Appellants.

          Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees.

          Before: MERRITT, GUY, and MOORE, Circuit Judges.

          OPINION

          RALPH B. GUY, JR., CIRCUIT JUDGE.

         Plaintiffs 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.

         I. BACKGROUND

         A. The Raids and Arrests

         Some 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.

         This 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.[1]

         B. The Lawsuits

         One of 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.

         Following 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[.]"

         The 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 because:

[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 issues.

         C. The First Appeal

         In 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.

Id.

         D. The Remand

         The 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.

         The 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. Plaintiffs appealed.

         II. DISCUSSION

         A. Invalid Search Warrants

         All the 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.

         The 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)).

         1. 923 W. Hillsdale - The Gardner House

         Two 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 next day.

         William 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.

         To 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.

         2. 3622 Karen Street - The Hudson House

         James 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 day.[2]

         The 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 stale." Id.

         Frechette 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).

         Here, 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.

         3. 1043 Bensch Street - The Louden House

         Controlled 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.

         Although 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.

         4. 914 Pompton Circle - The Holsey House

         A 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, [3] and then returned to Michigan Avenue.

         Through 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 ...


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