Tobias v. Pletzke
| Decision Date | 20 March 2013 |
| Docket Number | Case No. 12–10818. |
| Citation | 933 F.Supp.2d 892 |
| Parties | John TOBIAS, Plaintiff, v. Nicholas PLETZKE and Lyle Esterhai, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
OPINION TEXT STARTS HERE
John Anthony Tobias, pro se.
G. Gus Morris, McGraw Morris PC, Troy, MI, for Defendants.
A 16–year–old girl sits in a squad car talking to a police officer. The girl's father kicked a wall in her bedroom, she tells the officer. And hit her in the face with a pillow and kneed her in the back, which is why she called 911. Starting to cry, she tells the officer:
The officer asks whether drugs are in the house. “Yeah,” answers the daughter. “Will your boyfriend's parents come get ya?” the officer asks. “Yes,” answers the daughter. “They come get ya for the night, I [will] go up and watch you pack a couple of your things,” the officer volunteers.
The two exit the squad car and walk towards the girl's house. The father, watched by a second police officer, is standing calmly on the front porch. He is behaving neither aggressively nor threateningly (at least viewing the facts in the light most favorable to the father, as this Court must on the officers' motion for summary judgment).
The first officer calls out to the father, asking if the daughter can go inside to pack a few things and then spend the night at her boyfriend's parents' house. “Go pack your couple things,” the father tells his daughter. “Ok, I'm going to walk up with her and make sure she's packing, alright?” interjects the officer. “No,” responds the father.
The daughter speaks up that the officer can go inside the house with her. Again, the father refuses, directing his daughter: “Go pack your things and get up down here.” The daughter responds: “You're just afraid he's going to find your stash, dad.” The officer asks: “Is there something to hide?” “No, I ain't got nothing to hide,” the father answers. “Then what is the problem with me going up there?” the officer asks. “You don't have a warrant,” the father answers.
“I don't have to have a warrant,” the officer responds, “the welfare of your child is my main priority.” Offering the father a choice, the officer continues: “Either you are going to be seated right here while I go up there or you are going to go in the back of my car while I go up there—which way do you want it?” The officer then proceeds inside the house with the daughter, while the father remains on the porch watched by the second officer.
Is that entry justified by “exigent circumstances”? The father, contending that it was not, filed a § 1983 claim against the officers. The officers, arguing that it was, move for summary judgment on that claim (and the six others that the father has raised).
The answer, as detailed below, is clearly established.
Plaintiff John Tobias is the father of a son and a daughter. At the time of the events giving rise to this case (in September 2008), both children lived with him in Hampton Township, Michigan. The children's mother, Plaintiff's former wife, did not. The son was 14. The daughter, 16.
Defendants Nicholas Pletzke and Lyle Esterhai were Hampton Township police officers.
Thursday, September 25, 2008, began uneventfully for Plaintiff. See Tobias Dep. 53, July 10, 2012, attached as Defs.' Mot. Ex. 4. That morning, he recalls: “I did some lawn work, a little housework, and that was it.” Tobias Dep. 53. Around 1 pm, he smoked a joint. Tobias Dep. 53. He then “went to town and got a couple—a few groceries and stopped to get some gas in my car and realized I didn't have any money on my debit card.” Tobias Dep. 53.
Returning home a little before 4 pm, Plaintiff Tobias Dep. 54, 57. Plaintiff then called his daughter; she said that she would be home around 10 pm. Tobias Dep. 57. Plaintiff waited.
While he waited, Plaintiff recalls, he did some “harvest trimming.” Tobias Dep. 56. He explains: “I had some marijuana plants to trim so that's what I did.” Tobias Dep. 56.
Six hours passed.
About 10 pm, the daughter came home. Tobias Dep. 55. “I was angry with her,” Plaintiff remembers. Tobias Dep. 55. In his deposition, he was asked:
Tobias Dep. 57–58. Fifteen minutes later, Plaintiff went up to his daughter's room. Tobias Dep. 58. “It was a brief argument,” Plaintiff recalls. Tobias Dep. 58. Inquiring further, Defendants' counsel asked:
Tobias Dep. 61–62. Plaintiff left his daughter's room. She called 911. Pletzke Aff. ¶ 4, attached as Defs.' Mot. Ex. 9; see also Tobias Dep. 63.
The 911 call came in at 10:48 pm. See Pletzke Aff. ¶ 4. Officers Pletzke and Esterhai were dispatched to Plaintiff's home. Esterhai Dep. 20, 37, Sept. 28, 2012, attached as Defs.' Mot. Ex. 3; see also Pletzke Dep. 16, Nov. 5, 2012, attached as Defs.' Mot. Ex. 2.
Officer Pletzke remembers that “we were dispatched to the address for a possible assault between a father and daughter.” Pletzke Dep. 16; see also Pletzke Aff. ¶ 4. They arrived shortly before 11 pm, parking in the driveway behind a minivan. See Esterhai Dep. 32; see also DVD Recording, attached as Defs.' Mot. Ex. 5.
As they walked to the door, Officer Esterhai recalls, Plaintiff came outside and stood on his porch. Esterhai Dep. 32. A short time later, Plaintiff's daughter also came outside. Esterhai Dep. 33.
Plaintiff remembers that the encounter began slightly differently. Tobias Dep. 64. Plaintiff recollects that the officers knocked on the door and asked to speak with his daughter. Tobias Dep. 64. Tobias Dep. 64.
Regardless of how the encounter began, it is undisputed that after the officers arrivedboth father and daughter came out of the house and stood on the porch. The daughter then went to talk with Officer Pletzke in the squad car. Esterhai Dep. 33; Tobias Dep. 65. Officer Esterhai remained on the porch with Plaintiff. Esterhai Dep. 34.
The conversation that Officer Pletzke had with the daughter in the squad car was recorded. See DVD Recording.
Shortly after entering the car, Officer Pletzke can be heard asking “Has everything calmed down inside?” Id. at 31:23–25. “No,” the daughter responds, explaining: Id. at 31:26–31:32.
Officer Pletzke asks what happened. The daughter answers that Plaintiff had demanded to know whether she had used Plaintiff's debit card, which she vociferously denied. Id. at 34:00–34:07. She tells the officer that Plaintiff then asked about her mother. ” Id. at 34:07–34:28.
“And I told my mom that my dad still used drugs,” the daughter relays to Officer Pletzke, continuing: DVD Recording, at 35:18–35:31.
“Ok—hold on, hold on, I can only write so fast,” interrupts Officer Pletzke. Id. at 35:32. Resuming her narrative seconds later, the daughter starts to cry: Id. at 35:34–35:49.
“Is it in the house right now?” Officer Pletzke asks. Id. at 35:50–51. “Yeah,” answers the daughter. Id. at 35:51. “Where's it at?” asked Officer Pletzke. Id. at 35:52. “Upstairs in the bathroom—or his room,” responds the daughter. DVD Recording, at 35:52–57.
Officer Pletzke decides to accompany the daughter inside the house. Over the sound of closing car doors, the daughter can be heard repeating “either in the bathroom or his room.” Id. at 39:41–43. “Oh I can't—I mean is his room open?” Officer Pletzke responds as the two (evidently) stand outside the car. Id. at 39:43–45. reiterates the daughter. Id. at 39:46–48.
“Will your boyfriend's parents come get ya?” Officer Pletzke asks as he walks...
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