Wheeler v. City of Lansing

• Decision Date: 06 January 2010
• Docket Number: Case No. 1:08-cv-530.
• Citation: 677 F. Supp.2d 965
• Parties: Stella WHEELER, Plaintiff, v. The CITY OF LANSING and Detective Dennis Wirth, Defendants.
• Court: U.S. District Court — Western District of Michigan

677 F.Supp.2d 965

Stella WHEELER, Plaintiff,
v.
The CITY OF LANSING and Detective Dennis Wirth, Defendants.1

Case No. 1:08-cv-530.

United States District Court, W.D. Michigan, Southern Division.

January 6, 2010.

677 F. Supp.2d 967

J. Nicholas Bostic, J. Nicholas Bostic PLLC, Lansing, MI, for Plaintiff.

David K. Otis, Daniel Wayne Mabis, Plunkett Cooney, E. Lansing, MI, for Defendants.

OPINION and ORDER

Denying the Plaintiff's Motion for Summary Judgment on Count 2, Unconstitutional Seizure: Holding that the Seizure of Certain Items Violated the Fourth Amendment But Wirth Is Entitled to Qualified Immunity for Participating in Their Seizure

Granting the Defendants' Motion to Dismiss or for Summary Judgment: Granting Motion to Dismiss Federal Claims Against the City (Counts 1-3) for Failure to State a Claim;

Granting Wirth's Motion for SJ on Count 1, Unconstitutional Search without a Valid Warrant, due to Lack of Merit and due to Qualified Immunity

Granting Wirth's Motion for SJ on Count 2, Unconstitutional Seizure without Probable Cause, Due to Qualified Immunity

Granting Wirth's Motion for SJ on Count 3, Unconstitutional Seizure through Unreasonable Destruction, for Lack of Merit

Declining Supplemental Jurisdiction over the Remaining State-Law Claims Against Wirth & City Terminating and Closing the Case

PAUL L. MALONEY, Chief Judge.

This is a civil-rights action under 42 U.S.C. § 1983 arising out of a no-knock raid conducted on the home of plaintiff Stella Wheeler ("Wheeler") on January 30, 2008 by defendant Detective Dennis Wirth ("Wirth") and dismissed-defendant Douglas Sharp ("Sharp"), both Lansing Police Detectives, and other non-party law-enforcement officers. Wheeler claims that the defendants—Wirth and the Michigan municipal corporation, the City of Lansing ("the City")—acting under color of law, violated her Fourth Amendment right to be free from unreasonable search and seizure in several respects. See First Amended Complaint filed July 2009 ("Am Comp") ¶¶ 2A and 3. Wheeler complains that Wirth et al. conducted the entry, search, and seizure of personal property without a valid warrant and without a good-faith belief that the warrant was valid. See Am Comp ¶¶ 9, 12, 21, 24 and 30-33.²

The two remaining defendants, the City and Wirth, jointly filed a motion to dismiss for failure to state a claim and/or for summary judgment in July 2009; Wheeler filed an opposition brief in September 2009, and the defendants filed a reply brief in October 2009. See Doc. Nos. 57 & 58, 70 and 77. In July 2009 plaintiff Wheeler moved for summary judgment against Wirth only on count two (her claim for unreasonable seizure, through alleged destruction, of personal property in violation of the Fourth Amendment); Wirth filed an opposition brief in August 2009, and Wheeler did not file a reply brief. See Doc. Nos. 59-60 and 64.

The court will dismiss all three constitutional claims against the City for failure to state a claim, simply because the amended complaint does not allege any wrongdoing

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by the City and, in any event, Wheeler disavows any constitutional claims against the City.

For the reasons that follow, the court will grant summary judgment to Detective Wirth on count one, the claim for unconstitutional search due to an invalid warrant; published Sixth Circuit law at the time of the search did not clearly establish that the alleged defects or errors in the warrant, such as its statement of the wrong address, rendered the warrant invalid as to the entry and search.

The court will also grant summary judgment to Detective Wirth on count two, the claim for unconstitutional seizure of certain items without probable cause. The court agrees with plaintiff Wheeler that the warrant affidavit failed to establish probable cause for the seizure of certain items; Wirth is entitled to qualified immunity, however, because Wheeler fails to identify any published Sixth Circuit precedent at the time of the search which clearly established to an officer in Wirth's position that he could not rely on the warrant to seize those items.

Next, the court will grant summary judgment to Detective Wirth on count three, the claim for unconstitutional seizure by destruction of property (damage to the apartment and alleged theft of cash). Wheeler's opposition brief makes no attempt to show a genuine issue of material fact in support of this claim. Finally, per this district's customary practice, the court will decline supplemental jurisdiction over the state-law claims against both defendants.

BACKGROUND AND CLAIMS

The Investigation and Preparation of the Search-Warrant Affidavit. Before the search in question, Detectives Wirth and Sharp were investigating more than half a dozen home invasions in Eaton County, Michigan. See Motion for Summary Judgment filed by the Defendants on July 10, 2009 ("Defs' MSJ"), Exhibit ("Ex") A— Deposition of Detective Dennis Wirth taken March 18, 2009 ("Wirth Dep.") at 11. At oral argument, defense counsel referred to their investigation of as many as nineteen home invasions, though Wheeler's counsel maintained that the defense had not produced documentary evidence to support the allegation that the two detectives had been investigating more than about nine home invasions in the time period leading up to this incident. Nine or nineteen, a serial home invader(s) investigation was ongoing.

In any event, Wirth and Sharp had learned that a gold Pontiac Grand Prix automobile had been involved in three of the home invasions. See Defs' MSJ, Ex A (Wirth Dep.) at 13. During one of the invasions, a homeowner returned home, saw such a vehicle, and wrote down the license-plate number. It turned out that a vehicle of that make and model, bearing that license plate, though seemingly a different color (beige rather than gold), was registered to Wheeler. See Defs' MSJ Ex B—Deposition of Stella Wheeler taken September 24, 2008 ("Wheeler Dep.") at 13-14. When Wirth called Wheeler and asked her to speak with him about the fact that her car had been seen at the location of a home invasion, she denied knowing about it. See Defs' MSJ Ex B (Wheeler Dep.) at 86 & 89.

Wirth's investigation led to the apprehension of Tywone sic Brown, who admitted that he had assisted in two home break-ins in Lansing. Brown identified Michael Adams, Wheeler's boyfriend, as one of the participants in those break-ins, and said that stolen property from the break-ins was being stored in Wheeler's apartment. See Defs' MSJ Ex A (Wirth Dep.) at 11. Wirth contacted Sharp, and

677 F. Supp.2d 969

the two detectives drove with Brown to Wheeler's apartment. See Defs' MSJ Ex A (Wirth Dep.) at 15-16.

Brown pointed out the apartment, which was a duplex with a snow shovel leaning against the front door, and indicated that he had taken stolen property to that apartment. See Defs' MSJ Ex A (Wirth Dep.) at 17. Wirth noted the address as 1036, apartment number 4, with a green-bladed snow shovel out front. Sharp, who was writing down the information, looked up and saw a sign nearby which read "Maple Tree Court", whereupon he accordingly wrote down "1036 Maple Tree Court." See Defs' MSJ Ex A (Wirth Dep.) at 17; see also Defs' MSJ Ex C—Deposition of Detective Douglas Sharp taken October 24, 2008 ("Sharp Dep.") at 25. Wirth and Sharp dropped Brown off at the Delta Township police station and drove together to the Eaton County Prosecutor's office. See Defs' MSJ Ex A (Wirth Dep.) at 17.

Wirth and Sharp provided information on the home break-ins to an Eaton County assistant prosecutor, who typed up the warrant using 1036 Maple Tree Court # 4 as the address, as stated by Sharp, who signed the affidavit. Wirth did not sign it. A State magistrate issued the warrant as requested. See Defs' MSJ Ex A (Wirth Dep.) at 29, Ex C (Sharp Dep.) at 16-17, 25 and 29.

The Warrant Affidavit. In its entirety, the search warrant affidavit, signed and sworn by Sharp on January 30, 2008, reads as follows:

Detective Doug Sharp, Affiant, states that:

I. The person, place or thing to be searched is described as and is located at:

A two-story apartment-style townhouse located at 1036 Mapletree Court #4, Delta Township, Eaton County, MI 48917

II. The PROPERTY to be searched for and seized, if found, is specifically described as:

Proof of ownership and/or occupancy, evidence of home invasions that have occurred in Eaton and Ingham counties in November 2007—January 2008, including but not limited to personal property (shotguns, long guns, computer and stereo equipment, cameras, DVD players, video game systems, big screen televisions, necklaces, rings, other jewelry, coin collections, music equipment, car stereo equipment) taken in approximately nineteen home invasions.

III. The FACTS establishing probable cause or the grounds for the search are:

A. Detective Doug Sharp, affiant, is employed by the Eaton County Sheriff's Dept. and has been employed in law enforcement for six years.

B. Affiant Sharp was currently investigating several open home invasion complaints that occurred in Eaton County during November through December 2007.

C. On Tuesday January 29, 2008, Affiant Sharp spoke to Lansing Police Detective Dennis Wirth who indicated that he had interviewed a suspect Tywone Deshawn Brown regarding home invasions and that suspect Brown possibly had information regarding home invasions in Eaton and Ingham County.

D. Detective Wirth obtained a home invasion arrest warrant for Tywone Brown on January 30, 2008 and he was arrested the following day.

E. Detective Wirth indicated that Tywone Brown admitted to helping

677 F. Supp.2d 970

with two home invasions which occurred on January 22, 2008 at 3010 Amherst St., Lansing, MI Ingham County and 2530 Bedford St., Lansing MI Ingham County.

F. Tywone Brown indicated to Detective Wirth that two big screen televisions, a digital camera, Playstation 3 and cash were taken from the homes.

G. Detective Wirth indicated

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