Noonan v. Cnty. of Oakland, CASE NO. 15-2192

• Decision Date: 24 March 2017
• Docket Number: CASE NO. 15-2192
• Parties: THOMAS D. NOONAN, Plaintiff-Appellee, v. COUNTY of OAKLAND, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

THOMAS D. NOONAN, Plaintiff-Appellee, v. COUNTY of OAKLAND, et al., Defendants-Appellants.

CASE NO. 15-2192

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

March 24, 2017

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 17a0183n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: SILER, BATCHELDER, and GRIFFIN, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal from the denial of qualified immunity, a police officer accused of malicious prosecution argues that she had probable cause and/or that the plaintiff was not deprived of his liberty. Because a plaintiff must have suffered a deprivation of liberty in order to state a Fourth Amendment claim of malicious prosecution under Sixth Circuit precedent, and because we cannot find a sufficient deprivation of liberty here, we conclude that this police officer is entitled to qualified immunity as a matter of law and REVERSE. We do not decide the fact-based question of probable cause.

I.

In June 2010, Thomas Noonan was an attorney earning over $100,000 per year at a law firm, where he had worked since 1999 and had become a partner in 2006. He had never declared bankruptcy, never been convicted of a crime involving theft or dishonesty, and never been arrested for or convicted of any drinking and driving violation. He had $10,000 in outstanding student loans, toward which he was methodically paying $800 per month. He had once had an issue with the Michigan Bar, due to an isolated incident, long since resolved.

In 2008, Noonan had purchased a 2001 Pontiac Grand Prix from his brother, David, for $2,500. David gave Noonan only one key, an older style key without a fob or buttons. David later attested that he has no recollection of ever giving Noonan the second key and expressly denied that he told police that he gave Noonan two sets of keys with the vehicle at the time of the purchase. Noonan has insisted throughout this episode that he only ever had one key.

By June 2010, the car was almost 10 years old, with approximately 180,000 miles, and ordinary wear. Noonan had just replaced the brakes for $700 and he estimated the car's value at $1,000. R. 84-8 at 4. On the evening of June 17, 2010, Noonan left work around 7:00 p.m., went to the gym, and then met a friend at a bar to watch an NBA Finals game. After two or three drinks over the course of an hour and a half, Noonan left the bar a little after midnight and went home. On his way home, Noonan stopped and filled up his car with $42 in gas. Noonan parked his car in the driveway of his Farmington Hills home, as was his custom (he used his garage for storage), and left some personal property in the car, including gym clothes and several work-related files. Noonan locked the car and took his key into his house. He also took one of his two employment security access cards into his house with him. The next morning (June 18) at about 9:00 a.m., Noonan discovered that his car was gone. He reported a car theft to the Farmington Hills Police Department and to his insurance carrier. The responding officer noted "no sign of force"—presumably meaning no broken glass on the ground or other evidence of damage resulting from a physical break-in to the car—and that Noonan had the key. R. 84-8 at 4.

The Farmington Hills Police Department assigned the investigation to defendant Nicole Tomasovich-Morton, a detective with its Auto Theft Unit (ATU), a multi-jurisdictional taskforce comprised of officers from Oakland County cities. Morton had been with the ATU since January 2010 (five months), before which she had no experience investigating auto thefts.

When the Detroit police recovered the car in Detroit at about 9:20 p.m. that evening (June 18), it was "w/o plate[,] ... [k]eys were with the vehicle, and no arrest was made." R. 84-8 at 4. Detective Morton recorded in her Case Report [R.84-8] that, according to "Officer Pitts" of the Detroit Police Department, the driver had hit two parked cars and then abandoned the car and fled on foot—Morton's report, however, contains no name or description for the reporting witness and, more importantly, contains no description or request for description of the fleeing driver.¹ Morton observed that "a temporary license plate" had been placed in the rear window and that the car had more damage than would be explained by the present accident. Morton noted that the key in the ignition was on a key ring with several other keys and a security pass card.

The key ring also had an individualized tag, which turned out to be for a "LegalShield" account for prepaid legal services. Noonan's gym clothes and work files were still in the car and it was later reported that a tequila bottle (contents unreported) was found on the floor. The police did not collect any fingerprints from the keys, the security pass card, the LegalShield tag, or the tequila bottle. Nor did the police contact LegalShield to determine the owner of the tag—the prosecutor later recognized that it would be odd for an attorney such as Noonan to have a prepaid legal services account, and when Noonan's counsel subpoenaed LegalShield, the response provided a name and address for the account owner. [R. 79] It was not Noonan.

Detective Morton first interviewed Noonan on July 6, 2010, and her formal report begins with the characterization that Noonan "appeared to be very nervous, shaking, sweating and stumbling over his words." Noonan denies that characterization and asserts that he was instead calm and cooperative. Morton had Noonan describe any preexisting damage to the car and he recounted only a small dent to the rear bumper; she also had Noonan attest that he had only one key and she took possession of that key. Morton advised Noonan that his car had been recovered with a key in the ignition shortly after its theft and showed Noonan the key ring and keys found with the car. Noonan denied that the keys were his, even when pressed; though he did concede eventually that the security pass card "could be" one of his pass cards for work that he had left in his car. Noonan filled out a vehicle theft report and left his only key with Morton.

Two things warrant mention at this point. First, despite Noonan's claim that Detective Morton recorded both interviews [R.1 at 13], Morton said that she did not record the interviews or even keep her notes; indeed, she shredded her notes for all of the interviews in this case. Therefore, the only written record is her after-the-fact report. This is particularly important because two of Morton's proffered rationales for her suspicion are her claims that, during these interviews, Noonan changed his story and refused a polygraph. Morton claims that Noonan originally said that he went straight home from the gym and only later revealed that he went to a bar to watch the game. But Noonan denies ever saying that he had gone straight home, and there is no record of it in Morton's report. Morton also claims that Noonan refused to take a polygraph, but Noonan denies that Morton ever offered a polygraph and Morton's report contains no mention of any polygraph. The other noteworthy thing is that Morton lost the keys. She testified that she mailed them to the person who retrieved the car from the impound lot, but she could not recall who that was and she had no record of sending them. Also, contrary toFarmington Hills Police Department rules, she did not photograph the keys as evidence. So there are no keys and no photos of the keys.

Morton interviewed Noonan again on July 21, 2010, and Oakland County Sheriff's Detective Herman Bishop attended this interview as well. Again, Morton's formal report begins with the almost identical characterization that Noonan "appear [sic] agitated and nervous[,] [s]haking and stumbling over his words." Noonan again denies that characterization and asserts that he was instead "very calm." Morton also claimed that "Noonan stated he just wanted to get this whole process behind him, he wanted it 'done'." Noonan denies that assertion and says he was glad to be getting his car back and that it had "been a pain in the ass borrowing cars."

Morton pressed Noonan about the keys and Noonan insisted that he had only one, that he had never copied it, and that nobody else had access to make a copy. Morton then reported: "Once Noonan learn[ed] that a car key was found in the ignition attached to a key chain with his work pass he stated that he could possibly have had a second key. Detectives then advised Noonan that both keys appear[ed] to be the original keys to the vehicle." R.84-8 at 6. But Noonan denies ever saying that he might or could have had two keys. Morton also reported that Noonan's brother David had told her "that he gave (Thomas) Noonan two sets of keys with the vehicle at the time of purchase." R. 84-8 at 6. David, however, denies this and says that while he told Morton that he himself had two sets of keys, he did not tell her that he gave both to Noonan, and that Noonan likely only had one (Morton kept no notes of this interview either). Finally, included without context or explanation in the report of this July 21 interview, Morton wrote:

[Noonan] is also paying off his law school loans. He indicated that he is trying to get over the 'hump' with the loan. He wants the loan paid off as soon as he can.

He planned on buying a new vehicle towards the end of the year. I asked Noonan what he planned on doing with the vehicle that was taken. Noonan paused and stated he was not sure.

R. 84-8 at 6. Morton had surmised that Noonan had two possible motives to falsify a police report and insurance claim, and the law school loan underlies the first: that Noonan wanted the insurance money to pay off his student loans. But Morton was already aware of other evidence that belies this theory: the amount of Noonan's outstanding loans (about $10,000), that he was current on those loans (at $800 per month), that his income was over...