Tlapanco v. Elges

• Citation: 969 F.3d 638
• Decision Date: 12 August 2020
• Docket Number: No. 19-1392,19-1392
• Parties: Johnny TLAPANCO, Plaintiff-Appellant, v. Jonathan ELGES, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

969 F.3d 638

Johnny TLAPANCO, Plaintiff-Appellant,

v.Jonathan ELGES, et al., Defendants-Appellees.

No. 19-1392

United States Court of Appeals, Sixth Circuit.

Argued: January 30, 2020

Decided and Filed: August 12, 2020

JULIA S. GIBBONS, Circuit Judge.

Fourteen-year-old A.F. reported to police that she was being blackmailed by a user on the messaging application Kik. She explained that the perpetrator had obtained nude photographs from her phone and was threatening to release the images if she did not send additional nude photographs. Oakland County, Michigan, deputies investigated her claims but disregarded the fact that the blackmailer used the Kik username "anonymousfl" rather than "anonymous"—a separate Kik username associated with Johnny Tlapanco, a New York resident. As a result, New York Police Department ("NYPD") officers working with Oakland County Deputy Jonathan Elges, searched Tlapanco's apartment, seized his electronic devices, arrested him, and detained him in New York for two weeks before extraditing him to Michigan and detained him at the Oakland County jail for an additional three weeks before the charges were dismissed.

Tlapanco sued the deputies and Oakland County under 42 U.S.C. § 1983, alleging that: (1) Elges unlawfully searched his apartment, caused his false arrest, and prosecuted him for offenses related to child pornography; (2) Deputy Michael McCabe unlawfully seized, searched, and copied his electronic devices prior to returning them to him; and (3) Oakland County is liable for failure to train or because of McCabe's decisions as a purported county policymaker.¹ The district court granted summary judgment in favor of all appellees. Tlapanco challenges the district court's grant of summary judgment to Elges, McCabe, and Oakland County. We affirm the grant of summary judgment to McCabe and Oakland County, but reverse the district court's grant of qualified immunity to Elges on Tlapanco's Fourth Amendment unlawful search and seizure, unlawful arrest, and malicious prosecution claims.

I.

On March 6, 2014, an Oxford High School ("OHS") resource officer contacted Elges of the Oakland County Sheriff's Office ("OCSO") to report a student facing threats of blackmail. Elges interviewed the student who reported the threats, A.F., as well as other students at OHS. A.F. reported to the resource officer that an individual, "anonymous," was threatening to release nude images of her hacked from her phone if she did not send additional images. The anonymous user transmitted the threats through a messaging application called Kik that A.F. and others used. A.F. received the threatening messages between March 4 and March 6.

After the interview with Elges, A.F. turned over her phone and iPod to Elges for further investigation. Based on his conversation with A.F., Elges immediately sent a request to Kik seeking information on the individual using the username "anonymous" on the Kik application. The distinction between a display name and a username is critical because a Kik user only has one unique username , but a user can change his display name at any time and the display name is not unique to that user. Elges learned about the difference between a display name and username on Kik in his conversation with A.F. and the other students at the beginning of his investigation. Kik's response linked the username "anonymous" to an email address as well as to two IP addresses where the user had logged onto the Kik application. The response presented data associated with the account from February 9, 2014 to March 13, 2014—including the March 4–6 period during which A.F. received the threatening messages—and contained the date and time of the activity and a coded "extra data" column. DE 54-7, Kik Request Resp., PageID 1451–65. The response did not list which accounts "anonymous" messaged nor the contents of those messages.

A deputy assisting Elges's investigation, Deputy Carol Liposky, extracted information from A.F.’s phone and iPod, including information regarding her Kik messages. Liposky exported A.F.’s messages into an Excel spreadsheet that was later given to Elges. The spreadsheet includes columns for direction (i.e., sent or received), attachments, time, display name, username, and contents of the message. The content in the time, display name, and username columns appears cut off and incomplete unless the cells in the spreadsheet are expanded. When the cells in the spreadsheet are expanded, the display name of the individual threatening A.F. is "anonymous," but the username is "anonymousfl." DE 54-8, A.F. Kik Messages Excel Spreadsheet, PageID 1472. Elges testified that he "look[ed] at the report" but "did not expand the cell" for username. DE 44-2, Elges Dep., PageID 641, 631–32. He therefore claimed he "did not see the last two letters of the cell," and believed that both the username and the display name of the suspect were "anonymous." Id. at 642.

Based on the email address received from Kik, Elges sent a request to Google seeking information about the email's owner. Google's response listed Tlapanco as the owner of the email, included a backup email address, and that the email account had been accessed at the same two IP addresses that Kik indicated had accessed the Kik application. Additionally, Elges tracked the IP addresses and discovered one address was assigned to the network of Kingsborough Community College and the other was registered to private user Pastora Tlapa, Tlapanco's mother, in Brooklyn, New York.

Based on the collected information, Elges sought a search warrant for the two New York City locations associated with the IP addresses. His sworn affidavit for the warrants provided that Elges was the deputy in charge of the investigation, relayed his conversation with A.F. and the other students, summarized the Kik messages at issue, discussed the Kik request and response regarding the IP addresses, and summarized his process for confirming the IP addresses through further requests to the online providers and Google.

Based solely on Elges's affidavit and no additional investigation, NYPD officer Gregory Thornton swore to the warrant request and received search warrants for Kingsborough Community College and Tlapanco's apartment. Thornton, accompanied by Elges and others, executed a search of the Brooklyn apartment on May 21, 2014. The officers seized a variety of electronic devices, including several iPods, a desktop computer, laptops, and several thumb drive storage devices.

Additionally, the officers interviewed Tlapanco in the apartment after the search. During the interview, Tlapanco stated that he created a Kik account with the username "anonymous" in January 2013 but had only actively used the account since March 2014. When asked whether he knew why the police were at the apartment, he replied that he did not know, but when prompted about requesting nude pictures, Tlapanco stated that he only had requested pictures from two individuals using Kik but had received or downloaded other pictures from Kik and other websites. He identified the two individuals he requested pictures from as "Sophiuchiha" and "Yoursluttysecret428," alternatively identified as "Brianna" and "Quincy," and stated that they were 19 and 22. DE 54-4, OCSO Report, PageID 1428–30; DE 54-9, Tlapanco Police Statement, PageID 1474. He denied sending the messages A.F. received that the officers showed him, denied ever receiving "child porn," and denied having any images of A.F. DE 54-4, OCSO Report, PageID 1430–31; DE 54-9, Tlapanco Police Statement, PageID 1474–77. He further requested the officers use his username and password and investigate the messages sent from his account to confirm that he did not send the messages to A.F.

Tlapanco's written statement after the interview reiterated his statements from the interview, but also included additional statements responding to the allegations:

I don't remember doing such a thing. It may have happened, but as the officers said, it may have been a one-time thing, just feeling crazy that day. I don't know for sure, and without the [Kik message] logs, I cannot confirm that it happen[ed]. I am not denying it either. I am not a bad person, and I want to help the officers .... I've never received nude pictures from underage girls from Kik or anything else.

DE 54-9, Tlapanco Police Statement, PageID 1475.

After the NYPD seized Tlapanco's electronics, the devices were turned over to the OCSO for forensic analysis. Over 18,000 images were recovered from the iPod but none of the images were of A.F. According to the OCSO police logs, the forensic analysis of the iPod found images in poses and outfits "similar" to the ones requested by A.F.’s blackmailer. DE 54-4, OCSO Report, PageID 1431. The forensic report also included Kik messages, but "the earliest date of the messages stored on the Ipod [sic] were from March 17, 2014." Id. at 1432. Notably, this is after the date of the messages sent to A.F. and consistent with Tlapanco's statement that he did not begin actively messaging on Kik until March 2014.

Based on the accumulated information and at Elges's request, the Oakland County Prosecutor's Office sought to charge Tlapanco with eight counts relating to child sexually abusive acts, using a computer to commit a crime, and accosting a minor for immoral purposes. Oakland County issued an arrest warrant, and New York police arrested Tlapanco in July 2014, after which he spent two weeks in jail in New York. Tlapanco was then extradited to Michigan and held at the Oakland County jail for three weeks.

Tlapanco was arraigned in Michigan but, prior to the pre-examination hearing, the charges were dismissed without prejudice after Elges and the prosecutor realized they had arrested Tlapanco, who used the username "anonymous," and not the blackmailer, who used the username "anonymousfl." The prosecutor stated that he would "follow up with a formal nolle pros order once some further investigation [wa]s...