880 F.3d 256 (6th Cir. 2018), 17-1072, Peffer v. Stephens

Docket Nº:17-1072
Citation:880 F.3d 256
Opinion Judge:JOHN K. BUSH, Circuit Judge.
Party Name:Julie PEFFER; Jesse Peffer, Plaintiffs-Appellants, v. Mike STEPHENS, Defendant-Appellee.
Attorney:J. Nicholas Bostic, Lansing, Michigan, for Appellants. Joseph T. Froehlich, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
Judge Panel:Before: BOGGS, BATCHELDER, and BUSH, Circuit Judges.
Case Date:January 17, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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880 F.3d 256 (6th Cir. 2018)

Julie PEFFER; Jesse Peffer, Plaintiffs-Appellants,


Mike STEPHENS, Defendant-Appellee.

No. 17-1072

United States Court of Appeals, Sixth Circuit

January 17, 2018

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Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:15-cv-00078— Gordon J. Quist, District Judge.


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

Joseph T. Froehlich, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

Before: BOGGS, BATCHELDER, and BUSH, Circuit Judges.


JOHN K. BUSH, Circuit Judge.

This appeal requires us to determine the extent of the Fourth Amendment’s requirements for an affidavit supporting a warrant to search the residence of an individual suspected of committing a crime involving the use of a computer.

That issue figures prominently in Plaintiffs Julie and Jesse Peffer’s appeal of the district court’s grant of summary judgment in favor of Defendant Mike Stephens, a detective sergeant with the Michigan State Police, as to the Peffers’ 42 U.S.C. § 1983 claim. This claim arises from a search of the Peffers’ home in Reed City, Michigan, and from the seizure of computer equipment and other items and documents from this residence pursuant to a warrant issued on the basis of Sergeant Stephens’s sworn affidavit. According to the Peffers, the affidavit (which was incorporated into the warrant by reference) failed to support a finding of probable cause for the search and seizure because it did not sufficiently allege any criminal activity or any connection between such activity and the house.

The district court granted summary judgment for Sergeant Stephens, holding that the warrant was supported by probable cause and that, in the alternative, Sergeant Stephens was entitled to qualified immunity.1 For the reasons explained below, we affirm.

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A. Factual Background

Because the district court granted summary judgment, we review the facts " in the light most favorable to the nonmoving party." Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 301 (6th Cir. 2016). Briefly stated, the relevant facts are these:

In March 2011, Mr. Peffer met Tom Beemer at Beemer’s medical-marijuana dispensary, where Mr. Peffer was purchasing medical marijuana. By June 2011, Mr. Peffer had become a caregiver for several medical-marijuana patients, for whom he grew marijuana sufficient to cover their medical-marijuana needs. Based on his understanding of state law, when Mr. Peffer’s marijuana plants produced more marijuana than was needed for his patients, he would sell the excess to Beemer to be sold at Beemer’s dispensary.2

Unbeknownst to Mr. Peffer, Beemer became a confidential informant for both the Central Michigan Enforcement Team and the Traverse Narcotics Team (" CMET" and " TNT," respectively). Beemer attempted to persuade Mr. Peffer to sell him more marijuana than was allowed under the Michigan Medical Marihuana Act, an offer that Mr. Peffer declined. On June 13, 2012, having become suspicious of Beemer’s actions, Mr. Peffer agreed to meet with him. While en route, Mr. Peffer was the subject of a traffic stop executed by Officers Coon, King, and Edinger. The officers found fifteen ounces of marijuana in Mr. Peffer’s vehicle. At that time, Mr. Peffer had six patients, which he understood to allow him to possess a total of fifteen ounces of marijuana, based on a calculation of 2.5 ounces of marijuana per patient. As of June 1, however, he had only three patients who were medical-marijuana eligible, thereby lowering the quantity of marijuana he could possess under Michigan law to 7.5 ounces. The officers arrested and charged Mr. Peffer with possession with intent to distribute and conspiracy to distribute marijuana.

On February 22 and 25, 2013, the Mecosta Osceola Office of Child Services and the Reed City Public School District received typewritten letters, both dated February 21 and purporting to be from Jason Coon of CMET. Coon was one of the officers who had arrested Mr. Peffer, though he was not identified as such in the letters. Although not identical, the letters were similar in content. They suggested that a Mr. Thomas A. Beemer had been engaged in the distribution of controlled substances but had " in exchange for immunity/leniency in sentencing ... agreed to become a confidential informant." The letters went on to express concern for the welfare of Beemer’s children.

Officer Coon denied writing or sending the letters. Sergeant Lator, who was assigned to investigate the letters, suspected that the sender was someone with whom Officer Coon had interacted during his time assigned to CMET. Based on his CMET experience, Officer Coon thought Mr. Peffer to be the primary suspect. Trooper Glentz, who later assumed responsibility for the investigation, followed up with Officer Coon. The latter justified his suspicion of Mr. Peffer on the grounds

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that Beemer had been instrumental in setting up a sting operation that resulted in Mr. Peffer’s arrest before the suspicious letters were sent, and that Mr. Peffer had lived in Reed City.

Detective West, who assisted in the investigation, identified five possible suspects, two of whom were the Peffers. Two of the other suspects had been arrested in circumstances similar to Mr. Peffer’s, based on information received from Beemer. The third suspect had been arrested on his way to sell cocaine to Beemer, and, although the record does not directly indicate that Beemer provided information that led to that arrest, the substantial similarities among the four arrests suggest this to be the case.

On March 29, 2014, Trooper Glentz received two packages in the mail, each of which contained what appeared to be marijuana seeds. The packages had been returned for insufficient postage to Trooper Glentz’s residence, which was the return address on the packages. Trooper Glentz denied that he sent the packages.

On June 16, 2014, in exchange for the prosecutor’s dropping the other charges against him, Mr. Peffer pleaded no contest to the making of false pretenses in relation to his June 13, 2012, arrest.

In July 2014, Sergeant Stephens was contacted by Lieutenant Abendroth of CMET, who informed him that a number of fliers of two types had been mailed to businesses and residences in the areas of Grand Rapids and Reed City. The first type of flier contained a picture of Beemer, identifying him as a confidential informant, an ostensibly official list of charges against Beemer that had been ordered nolle prossed, and a request to contact CMET or TNT should readers have any information concerning Beemer. The second type of flier contained the same picture and list of charges, but also included the following message: " Hi, my name is Tom Beemer. I owned a dispensary in Big Rapids and was shut down because of the charges listed below. Peter Jaklevic as prosecutor set me free. Please vote for Peter Jaklevic for District Judge. Friend of criminals."

Lieutenant Abendroth told Sergeant Stephens that he believed that Mr. Peffer had authored the fliers, as well as the earlier letters, because Mr. Peffer was the only individual about whom Beemer had provided information to both CMET and TNT. Additionally, the original letters had been sent at approximately the same time that Mr. Peffer became aware that Beemer had provided information to the police, and the fliers dated from around the time of Mr. Peffer’s sentencing, which Jaklevic had attended. Because the other three suspects were involved only with CMET, but not TNT, Sergeant Stephens decided not to investigate them further.

On July 31, 2014, Sergeant Stephens obtained a warrant from a magistrate to search a house located at 21271 Bierri Road in Reed City. This residence was owned in fee simple by Mr. and Mrs. Peffer. Sergeant Stephens’s affidavit provided details as to the letters that had been sent, the suspected marijuana seeds, the fliers, and the potential connections between Mr. Peffer and the mailings. The warrant authorized the following personal property to be searched for at the house and, if found, to be seized and searched: (1) " records, files, or documents pertaining to Thomas Owen Beemer and his role as a confidential informant and/or dismissal of charges in" certain courts, with " documents" described as including " records or documents which were created, modified ... or interpreted by a computer" and more specifically identified to include certain computer hardware, computer-related equipment, peripheral and storage devices, software and other items used for computer operation,

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communication, encryption, and access, as well as electronic mail (" e-mail" ) and other electronically stored communications or messages; and (2) " [a]ny and all mailing items including but not limited to envelopes, address labels, and stamps that match the items seized in this investigation." The magistrate issued the warrant, finding that probable cause existed for the specified searches and seizures based on the affidavit in which Sergeant Stephens detailed his assertion of probable cause that the house " may contain evidence of the crime of Impersonating a Police Officer and Witness Intimidation." The warrant did not rely on evidence related to marijuana cultivation, possession, or distribution as a basis for finding probable cause for any search or seizure.

On the same day the warrant issued, Sergeant Stephens and five other officers with CMET and TNT executed the warrant on the Bierri Road residence. The officers seized a number of items, including a laptop, two computer towers, two...

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