Lavigne v. Forshee
| Citation | 861 N.W.2d 635,307 Mich.App. 530 |
| Decision Date | 28 October 2014 |
| Docket Number | Docket No. 312530. |
| Parties | LAVIGNE v. FORSHEE. |
| Court | Court of Appeal of Michigan — District of US |
J. Nicholas Bostic, Lansing for plaintiffs.
Plunkett Cooney (by Mary Massaron Ross, Bloomfield Hills and Josephine A. DeLorenzo, Detroit) for defendant.
Before: SHAPIRO, P.J., and MARKEY and STEPHENS, JJ.
Plaintiffs, Diane Lavigne and Kimberly Lavigne, mother and daughter respectively,1 appeal by right the trial court's order granting defendants' motion for summary disposition under MCR 2.116(C)(10) with respect to plaintiffs' action under 42 USC 1983, asserting that defendants violated plaintiffs' Fourth Amendment right to be free from unreasonable searches and seizures.2 We reverse and remand for further proceedings.
Plaintiffs allege in their 42 USC 1983 claim that Detective Kristi Forshee and Deputy Eric Leonard violated their Fourth Amendment rights by unreasonably searching their home on September 29, 2010, without a warrant, probable cause, or consent. Plaintiffs assert that the search was plainly unreasonable because it was the product of police coercion, rather than voluntary consent. Defendant Forshee argued that because she believed plaintiffs had consented to the officers' entry into their home, she did not violate plaintiffs' Fourth Amendment rights or, alternatively, that she was entitled to qualified immunity because her conduct did not evince plain incompetence or a blatant disregard for plaintiffs' constitutional rights.
According to Forshee, the police were investigating an anonymous tip that Kimberly was growing marijuana in her residence and unlawfully selling it to high school students. The day before the entry, the police had stopped at the home to talk to Kimberly, but were told she was out shopping. The next morning, officers retrieved several trash bags from the end of the home's driveway. Inside they discovered suspected marijuana stems, branches, and “roaches.” Leonard testified that when he informed the prosecutor about the anonymous tip and the results of the “trash pull,” the prosecutor stated that although he believed the officers had gathered sufficient information to seek a search warrant, he recommended that the officers attempt to obtain consent for a search through a “knock and talk” procedure.
Forshee asserted that she went to plaintiffs' home with Leonard and uniformed officer Robert Morningstar. The officers were greeted by Diane, and, because Forshee and Leonard were dressed in plain clothes, they identified themselves as police officers. Forshee stated that she and Leonard had also affixed their badges to their sweatshirts. Diane came outside and told the officers that Kimberly was not at home but that she would call her. Forshee testified that before Diane reentered the home to call Kimberly, Forshee asked if she could follow Diane inside for the officers' safety. Diane, however, did not respond. Forshee claimed that she stood in the threshold of the doorway, between the outer storm door and the inner main door, while Diane walked to a nearby table to retrieve a phone. Kimberly, who actually was in the home, then approached them. Forshee testified that neither Diane nor Kimberly asked the officers to leave the home or objected to her entry. Forshee also testified that she spoke to Kimberly regarding the marijuana complaint and that Kimberly asserted she had a medical exemption, offering to show Forshee the grow operation in her room. Forshee asserted that she asked to follow Kimberly upstairs to her room for the purpose of officer safety after Kimberly asked to change out of her pajamas. For these reasons, Forshee testified that she believed plaintiffs had consented to her entry into the residence and that Kimberly consented to being followed upstairs to inspect the marijuana grow operation.
In their depositions, Leonard and Morningstar substantially corroborated Forshee's testimony. But, although Leonard testified that before entering the home Morningstar was on the porch next to him, who in turn was standing next to Forshee, Morningstar testified that he was not on the porch and was too far away to hear any conversations between Diane, Leonard, and Forshee before entry. Leonard further asserted that Diane opened the outer door and entered the home after Forshee asked to follow her into the home.
Kimberly testified that she heard the officers ask Diane to get a phone to call Kimberly and also heard Diane tell the officers that she would do so and return immediately. Kimberly claimed that Forshee had entered the home behind Diane by opening the door and that she then heard the screen door shut. Kimberly testified that she specifically told Forshee, Leonard, and (later) a third officer in uniform (Morningstar) to leave because they did not have permission to enter the home and did not have a warrant. Kimberly claimed that the officers refused, citing concerns for their own safety, to leave the home and get a warrant, and also told her they did not need a warrant to enter and search the home because of the drug-dealing complaint. Kimberly contends that Forshee demanded to follow her upstairs and to see her marijuana grow operation. After waiting five minutes for the police to leave, Kimberly conceded and went upstairs to get the medical marijuana paperwork because she wanted the officers to leave. Kimberly contends that she was under duress when she unlocked the spare bedroom upstairs and allowed Forshee to enter and examine her grow operation.
Diane testified that Forshee and Leonard were dressed in plain clothes and did not immediately inform her that they were police officers when she went to the door. She also denied seeing either officer wearing a police badge, but conceded that Forshee and Leonard had informed her that they were officers after telling her that she could not go into the house without them. Diane offered to call Kimberly after telling the officers that Kimberly was not home. According to Diane, the officers followed her into the home before the screen door closed behind her. Diane testified that the officers proceeded into the dining room area, where Kimberly approached them and introduced herself. Diane said that Forshee asked to see Kimberly's medical marijuana card, and that Kimberly said that it was upstairs. Diane asserted that Kimberly asked the officers whether they had a warrant. She noted that Forshee would not allow Kimberly to retrieve her medical marijuana card by herself, and that Forshee demanded to see her “plants.” When asked, Diane did not recall Kimberly saying anything else to the officers.
Forshee further testified that all three officers left the residence after she inspected the marijuana grow operation and that Kimberly eventually showed Forshee her medical marijuana paperwork, which was located in her vehicle. Forshee denied any subsequent involvement or intentional contact with plaintiffs. Criminal charges were not filed against either plaintiff as a result of the incident.
After oral arguments on defendants' motion for summary disposition under MCR 2.116(C)(10), the trial court granted the motion on all plaintiffs' claims. The trial court ruled that plaintiffs could not prevail because the record indisputably established that the officers had consent to enter the home; consequently, the officers did not violate plaintiffs' Fourth Amendment rights against unreasonable searches and seizures. The court further ruled that Forshee's claim of qualified immunity was moot, but noted that it would likely apply.
This Court reviews a trial court's decision on a motion for summary disposition de novo.
Latham v. Barton Malow Co., 480 Mich. 105, 111, 746 N.W.2d 868 (2008). Under MCR 2.116(C)(10), the motion is properly granted “if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id. “Whether a defendant is entitled to qualified immunity is a question of law that we review de novo.” Morden v. Grand Traverse Co., 275 Mich.App. 325, 340, 738 N.W.2d 278 (2007).
In a motion for summary disposition under MCR 2.116(C)(10), the moving party must specifically identify the issues for which no factual dispute exists, and must support this claim with evidence such as affidavits, depositions, admissions, or other documents. MCR 2.116(G)(4) ; Coblentz v. Novi, 475 Mich. 558, 569, 719 N.W.2d 73 (2006). If the moving party meets its initial burden, the opposing party then has the burden of showing with evidentiary materials the substance of which would be admissible that a genuine issue of disputed material fact exists. Id.; Bronson Methodist Hosp. v. Home–Owners Ins. Co., 295 Mich.App. 431, 440–441, 814 N.W.2d 670 (2012) ; MCR 2.116(G)(6). A genuine issue of material fact exists if the record, viewed in a light most favorable to the nonmoving party, leaves open a matter on which reasonable minds could differ. Allison v. AEW Capital Mgt., LLP, 481 Mich. 419, 425, 751 N.W.2d 8 (2008). When deciding a motion for summary disposition, a court may not decide disputed factual issues. Burkhardt v. Bailey, 260 Mich.App. 636, 646–647, 680 N.W.2d 453 (2004).
Under 42 USC 1983, a person is liable in an action at law if that person, “under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution....” The statute “itself is not the source of substantive rights; it merely provides a remedy for the violation of rights guaranteed by the federal constitution or federal statutes.” York v. Detroit (After Remand), 438 Mich. 744, 757–758, 475 N.W.2d 346 (1991). The federal right at issue in this...
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