Bills v. Aseltine

• Decision Date: 26 April 1995
• Docket Number: No. 92-2556,92-2556
• Citation: 52 F.3d 596
• Parties: , 42 Fed. R. Evid. Serv. 110 Lorraine BILLS, Plaintiff-Appellant, v. Sgt. Dennis W. ASELTINE, Officer Brian P. Denoyer, Officer Rick Davis, Officer Jeffrey K. Ewald, Officer Debra Gawron, Officer Medbury, and Chief Larry Owen, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 596

52 F.3d 596

32 Fed.R.Serv.3d 962, 42 Fed. R. Evid. Serv. 110

Lorraine BILLS, Plaintiff-Appellant, v. Sgt. Dennis W. ASELTINE, Officer Brian P. Denoyer, Officer Rick Davis, Officer Jeffrey K. Ewald, Officer Debra Gawron, Officer Medbury, and Chief Larry Owen, Defendants-Appellees.

No. 92-2556.

United States Court of Appeals Sixth Circuit.

Argued Oct. 12, 1994.

Decided April 26, 1995.

Robert J. Dinges (briefed), Robert J. Dinges & Associates, Frank X. Fortescue (argued), Detroit, MI, for Lorraine I. Bills.

Dennis J. Clark (argued and briefed), Plunkett & Cooney, Detroit, MI, Thomas P. Vincent, Plunkett & Cooney, Lansing, MI, for Dennis W. Aseltine, Sgt.

Thomas P. Vincent, Plunkett & Cooney, Lansing, MI, for Brian P. Denoyer, Jeffrey K. Ewald, Rick Davis, Larry Owen, Debra Gawron, Officer Medbury.

Before: MILBURN, BOGGS, and NORRIS, Circuit Judges.

BOGGS, Circuit Judge.

Plaintiff Lorraine Bills appeals from the district court's grant of summary judgment for the defendants. The case had previously been dismissed by the district court after a finding of qualified immunity, but this court reversed in part, in Bills v. Aseltine, 958 F.2d 697 (6th Cir.1992) ("Bills I "). We remanded the case to resolve issues of material fact concerning whether Sgt. Dennis Aseltine, who led the search, had been "objectively unreasonable" in inviting a private security officer to accompany him in executing a search warrant, as well as to decide questions of state constitutional law. A jury concluded that the officer had not acted unreasonably, and the district court dismissed Bills's state constitutional claims as a matter of law. Because we determine that there was no legal or trial error and hold that the jury's finding as to Sgt. Aseltine precludes liability for the other defendants, we affirm the judgment of the district court.

I

In the summer of 1987, Sergeant Dennis Aseltine of the Pinckney, Michigan, Police Department obtained information that plaintiff's son, Charles Sutton, was stealing radar detectors and that his mother and stepfather, Dennis Bills, were selling them in the parking lot of the General Motors ("GM") Proving Grounds. Aseltine passed this information on to William Meisling, a security officer at GM, who informed Aseltine that GM was already investigating Mr. Bills concerning the theft of GM property. Aseltine had also heard "on the street" in the Pinckney area that Mr. Bills was in possession of stolen GM property.

On August 20, 1987, Chief Larry Owen of the Unidella Township Police called and told Aseltine that he had been notified that a stolen Kubota-brand generator was at the Billses' house. Aseltine met with Owen and his informant, who told Aseltine that he had also seen a large quantity of GM property on the premises. Aseltine was confident of the informant's reliability, so he proceeded to obtain a search warrant for the Kubota generator; he did not seek a search warrant for GM property because he felt he lacked sufficient probable cause. The warrant authorized a search of the Billses' home, garage, and adjoining shed, and also authorized the seizure of the Kubota generator.

Remembering that GM was also investigating the Billses, Aseltine called and invited Meisling to accompany the police in executing the search warrant. Aseltine also obtained the assistance of Chief Owen and officers from the Unidella Township, Hamburg Township, Livingston County and Pinckney police forces. ¹

Charles Sutton answered the door (plaintiff and her husband were not at home) and was served the warrant. Sutton immediately led Aseltine to the Kubota generator in the shed, while the other officers executed a protective sweep to secure the house. Police spotted a Yamaha-brand generator near the Kubota model, and a check of police records revealed that it was stolen. Officer Gawron of Hamburg Township was dispatched to procure a warrant for its seizure.

Meisling arrived shortly after the Kubota generator was found and seized. He accompanied the officers as they conducted a "plain view" survey of the house while they waited for Gawron to return with the search warrant. They discovered large quantities of GM parts and equipment, ² and Meisling took 231 photographs of these items without physically disturbing any of them.

The next morning, Meisling contacted the Michigan State Police about recovering from the Billses' home what he suspected was stolen GM property. Meisling and State Trooper Darnell Seering, a friend of Meisling, met with a Livingston County prosecutor to prepare an affidavit to support a search warrant. Meisling related how Aseltine had invited him to go along on the earlier search and that he had observed and photographed GM property in the Billses' home.

A second search warrant was issued on the sole basis of Meisling's affidavit, and on August 21, Seering, Meisling, two local police officers, and two GM employees went to the Billses' residence. They seized a variety of auto parts and equipment. Mr. Bills was charged with receiving and concealing stolen property, but a state court suppressed all of the evidence seized on August 21 as being tainted by the overly broad search the day before.

Lorraine Bills sued all the police officers involved in the searches, their respective municipalities, and the state of Michigan, under 42 U.S.C. Secs. 1983, 1985, and 1988, alleging infringement of her rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. She also claimed violations of the Michigan Constitution and state law causes of action for trespass and negligent or intentional infliction of emotional distress. The district court granted summary judgment for the defendants on all of Bills's claims. On appeal, the Sixth Circuit reversed the district court's finding of qualified immunity because "genuine issues of material fact exist concerning the reasonableness of the conduct of the police in inviting a private citizen into the dwelling of another for purposes unrelated to the execution of the search warrant." Bills I, 958 F.2d at 709. The court also remanded the pendent state constitutional claims because they had been dismissed based on the absence of an underlying federal constitutional violation. Ibid.

Upon remand, in an order dated September 29, 1992, the district court dismissed Bills's claims against all of the defendants except Aseltine because the court found that all of those defendants were protected by qualified immunity. The court noted that government officials are entitled to qualified immunity while performing discretionary functions so long as their actions do not violate clearly established rights of which any reasonable official would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Finding no evidence that any of the other police officers knew Meisling was present for private purposes, the court concluded that a reasonable officer would not have questioned Meisling's presence because he had been invited by and stayed close to Aseltine. However, the court could not decide as a matter of law whether Aseltine's conduct had violated clearly established law or whether he should have known he was exceeding the scope of the search warrant by inviting Meisling. Therefore, a jury trial was required to determine whether his conduct was reasonable. The court dismissed the remaining claims in a later order because the state of Michigan was immune to a Sec. 1983 suit based on the actions of an individual who violated state constitutional guarantees.

The district court sent the case to a jury on the issue of whether Aseltine had "unreasonably exceeded the scope of the warrant" by procuring "a private person to tour plaintiff's home with a camera for purposes utterly unconnected with the search warrant they had already executed." The jury returned a verdict for the defendant.

II

Bills raises a variety of issues on appeal. She first contends that the district court erred in granting summary judgment to defendants on her claims arising under the state constitution. She claims that the district court erred in granting qualified immunity to all the officers except Aseltine. Bills argues that the district court abused its discretion in its use of special interrogatories, by instructing the jury on the Fourth Amendment and failing to give two of plaintiff's proposed instructions, and in allowing the defendants' witnesses to refer to property observed during the search as "stolen" or "GM property." Last, she asserts that the district court erred in denying her motion for a directed verdict. We shall deal with each contention in turn.

A. Michigan law governing infringement of state constitutional rights.

The district court dismissed Bills's state law claims because it found that Michigan law does not recognize a cause of action against individuals for violations of the state constitution. A district court's conclusions of law are subject to de novo review on appeal. United States v. Braggs, 23 F.3d 1047, 1049 (6th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 274, 130 L.Ed.2d 191 (1994); Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir.1989). An appellate court must review the evidence "in the light most likely to support the district court's decision." Braggs, 23 F.3d at 1049 (citing United States v. Gomez, 846 F.2d 557, 560 (9th Cir.1988)).

The parties agree that the question of whether a cause of action exists for a violation of the state constitution is controlled by the Michigan Supreme Court's decision in Smith v. Dep't of Public Health, 428 Mich. 540, 410 N.W.2d 749 (1987). The general rule is that "there is no implicit right to sue the state for damages on the basis of violations of ... the Michigan constitution," although liability will be found in appropriate cases. Id. 410 N.W.2d at 792. A close reading reveals that Smith allowed suits only where "the state's liability would, but for the ...