John Autrey v. City of Detroit, et al

Filing

OPINION filed : AFFIRMED, decision not for publication. Ralph B. Guy , Jr., Circuit Judge; Martha Craig Daughtrey, AUTHORING Circuit Judge and Jane Branstetter Stranch, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0102n.06
No. 11-1653
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JOHN H. AUTREY,
Plaintiff-Appellant,
v.
Detroit Police Commander BRIAN R.
STAIR, Detroit Police Sergeant JOHN F.
KENNEDY,
Defendants-Appellees.

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FILED
Jan 29, 2013
DEBORAH S. HUNT, Clerk

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

Before: GUY, DAUGHTREY and STRANCH, Circuit Judges.

MARTHA CRAIG DAUGHTREY, Circuit Judge. Plaintiff John Autrey, a former
commander in the Detroit Police Department, filed this § 1983 action1 charging the City of
Detroit and numerous police officials with wrongful arrest and malicious prosecution, as
well as liability for state-law torts of gross negligence and malicious prosecution.
Ultimately, Autrey voluntarily dismissed all claims against the City, the chief of police, the
assistant chief of police, the deputy chief of police, and an additional police officer. The
district court, relying upon the preclusive effect of a state-court judge’s prior finding of
probable cause to bind Autrey over for trial, then granted summary judgment to the

1

See 42 U.S.C. § 1983.

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remaining defendants, Commander Brian Stair and Sergeant John F. Kennedy, on the
plaintiff’s claims.

Autrey now appeals the order of summary judgment, alleging that principles of
collateral estoppel were improperly applied to prevent him from relitigating the state court’s
probable-cause determination. He also contends that genuine disputes of material fact
militate against a grant of summary judgment in favor of the defendants.2 For the reasons
set out below, we conclude that the district court properly relied on collateral estoppel to
foreclose Autrey’s claims against Stair and Kennedy, and we therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Shortly after 2:00 a.m. on Saturday, April 28, 2007, Officer Carl Chuney of the
Detroit Police Department responded to a report of an automobile accident. Upon arriving
at the scene, Chuney learned that one of the vehicles involved in the collision was an
unmarked car registered to the Detroit Police Department. Chuney quickly ascertained that
the city-owned vehicle had been driven by Todd Bettison, a Detroit police commander and
close friend and campaign fundraiser for then-mayor Kwame Kilpatrick.

As part of his investigation of the accident scene, Chuney “evaluated” the vehicle,
“surveying it inside and outside, finding out if there was alcohol involved or determining

2

The plaintiff further contends that there is no m erit to the defendants’ requests for qualified im m unity
or to their argum ent that his state m alicious-prosecution claim is barred by the statute of lim itations. In view
of our ruling on the question of collateral estoppel, we need not address these issues.

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how the accident occurred.” In doing so, Chuney observed an empty Sutter Home winecooler bottle on the passenger side of the automobile and “[t]hree empty matching bottles
on the outside of the driver’s side door.” Rather than fill out an accident report at that time
noting his observations, Chuney deferred to other police officials who later arrived at the
scene. Chuney did, however, discuss with those other individuals – Commander John
Serda, Sergeant Stevie Hayes, and Officer Darrell Osborne – the wine-cooler bottles he
saw both inside and outside Commander Bettison’s vehicle.

Chuney, along with three other police officers, rerouted traffic around the accident
scene before contacting Sergeant Hayes, Chuney’s patrol supervisor. When Hayes arrived
on the scene shortly thereafter, he did not feel that it was necessary to take additional
actions to preserve the wine-cooler bottles in evidence “[b]ecause the scene [was] already
maintained. Tape was already around it so it wasn’t going anywhere.” When Hayes
reported his observations by phone to the lieutenant who was in charge of the district desk
that morning, the lieutenant directed him to leave the scene of the accident and to
accompany Bettison to a local hospital.

While Hayes was en route to the hospital, numerous phone calls were made and
messages left up and down the relevant chains of command within the police department,
indicating that a police commander had been involved in a car accident and that alcohol
might have been a contributing factor in the crash. Eventually, Hayes, Deputy Chief
Chester Logan, Commander Serda, and the plaintiff convened at the hospital to which

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Bettison had been taken. Although Hayes claimed that he did not, at that time, report to
his cohorts at the hospital that he had seen alcohol bottles at the scene of the accident,
Serda told Deputy Chief Logan that he (Serda) had been informed by phone by the
lieutenant in charge of the district desk that there was a “possibility that alcohol had been
involved in the accident.”

As a result, Logan directed Serda to evaluate the situation at the site of the
accident. Upon his arrival at the scene, Serda noted that the area around the crash site
had been blocked off by two marked scout cars. He also observed that the entire accident
area had been outlined with yellow crime-scene tape. Although there was no such tape
around the empty wine-cooler bottles themselves, Serda explained that the crime tape at
the intersection “secured the scene.” The commander then returned to the hospital to
inform Deputy Chief Logan of his observations.

While Serda was away from the hospital, Logan and Autrey attempted to speak with
Bettison, but were unable to do so because the injured commander was sedated and
unconscious. Nevertheless, Autrey and Logan learned from the emergency-room doctor
that Bettison “obviously had been drinking and it was obviously over the legal limit.”

At approximately 4:15 that morning, Autrey, Logan, and Serda finally left the
hospital. Autrey claimed that prior to their departure, Logan announced, “Internal Affairs
is not coming out. We can all go home.” The plaintiff further indicated that Logan stated
that the accident site “was no longer a crime scene.” Despite being told that “[w]e can all
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go home,” Autrey decided to drive by the scene of the accident to see whether “there is
[sic] some other personal items that are inside the car that [Bettison] had.” Even though
the plaintiff noticed two marked police vehicles continuing to block the road when he
arrived at the site at approximately 4:30 a.m., Autrey intimated that no police tape
surrounded the area, lending some credence to Logan’s prior pronouncement that the area
was no longer a crime scene.

In light of his understanding that no further investigations would be undertaken,
Autrey then approached Bettison’s car and removed a child’s car seat and a flashlight from
the vehicle. He also placed the empty wine-cooler bottles and some empty aluminum drink
cans into a plastic bag and stowed the items in the trunk of his own car. After visiting the
site of two other nearby incidents, Autrey then drove to the police station and placed the
bag containing the wine-cooler bottles in a dumpster.

Despite Deputy Chief Logan’s alleged announcement at the hospital that officers
from Internal Affairs would not be examining the crash site, Sergeant Kennedy, then of the
Internal Affairs Division, did in fact arrive at the scene after receiving a telephone call from
Commander Stair sometime between 5:00 a.m. and 6:00 a.m. on April 28, 2007. By that
time, Autrey had already left the scene of the crash and had taken with him the four winecooler bottles found in or near Bettison’s vehicle. Kennedy testified during his deposition
that, upon his arrival, he also did not see crime-scene tape in the area; however, he did
explain that, “when [he] arrived, the tow truck was getting ready to take the vehicle. So it

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may have been up and they had taken it down.” Prior to the departure of the tow truck
however, Kennedy examined the interior of the car and “saw a top to what appeared to be
some type of alcoholic beverage bottle with the letters ‘S,’ ‘H’ on top of it.” Based on the
results of his investigation, Kennedy then served an investigative subpoena to the hospital
that treated Bettison and discovered that the injured commander had a blood alcohol level
of .22, well over the legal limit. (Bettison himself later admitted that, prior to the accident,
he had consumed at least two Long Island iced teas and "a couple tequila shots," in
addition to the four wine coolers.)

On the Monday morning after Bettison’s Saturday accident, the law enforcement
officials involved in the investigation were asked by Internal Affairs to prepare their reports
of the incident. From those reports, Kennedy then developed his own investigation report,
the first draft of which did not request the prosecutor to bring charges against Autrey.
According to Kennedy, the reason that he did not initially seek to hold Autrey criminally
liable for the disposition of potential evidence was his belief that the wine-cooler bottles
were not needed in any prosecution of Bettison “because the blood alcohol level was so
high.” Nevertheless, as a result of later discussions between Kennedy and Internal Affairs
Commander Stair, the two men concluded “that Commander Autrey did remove bottles
from the vehicle and discard the bottles, [necessitating that Kennedy] type up an
Investigator’s Report in relationship to that as well.” An amended investigator’s report was
thus prepared by Kennedy and reviewed by Stair, and signed by Lieutenant Whitney

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Walton on Stair’s behalf on June 8, 2007, recommending that the prosecutor charge
Autrey with misconduct in office, tampering with evidence, and neglect of duty.

Kennedy then presented to Robert Donaldson, an assistant prosecuting attorney,
a packet of materials that included the investigator’s report, copies of interviews with
witness officers, “the interoffice memorandum that was prepared by commander, former
Commander Autrey, the accident report[,] and whatever relative [sic] information regarding
this matter would’ve been in the report.” Donaldson, after reviewing the materials,
approved the recommendation to charge Autrey under Michigan Compiled Laws Annotated
§ 750.505 with misconduct in office, under § 750.483a(5)(a) with tampering with evidence,
and under § 750.478 with neglect of duty by a public officer. In doing so, however, the
prosecutor specifically informed Stair that “[h]e didn’t want to know what [Autrey’s]
statement was. He didn’t want it included in his file or any mention of it in the investigator’s
report . . . to create that firewall so that there are no Garrity issues3 in the trial.”

Eventually, a Michigan state-court judge conducted a preliminary examination in the
prosecution of Autrey. At that proceeding, testimony was offered regarding the fact that
Autrey removed wine-cooler bottles from the accident scene and disposed of them.

3

In Garrity v. New Jersey, 385 U.S. 493, 500 (1967), the United States Suprem e Court held that “the
protection of the individual under the Fourteenth Am endm ent against coerced statem ents prohibits use in
subsequent crim inal proceedings of statem ents obtained under threat of rem oval from office, and that it
extends to all, whether they are policem en or other m em bers of our body politic.” See also McKinley v. City
of Mansfield, 404 F.3d 418, 427 (6th Cir. 2005) (“As a m atter of Fifth Am endm ent right, Garrity precludes use
of public em ployees’ com pelled incrim inating statem ents in a later prosecution for the conduct under
investigation.”).

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Furthermore, Deputy Chief Logan testified, contrary to the plaintiff’s assertions on appeal,
that he did not “advise Commander Autrey and/or Commander Serda that Internal Affairs
was not going to come out to the scene and that we can all go home now.” At the
conclusion of the testimony at the preliminary examination, the judge found that “there
[wa]s probable cause to believe the offenses charged in the Complaint and Warrant were
committed, likewise the defendant herein committed the offenses.” The judge thus bound
the matter over for trial.

The actual trial extended over two days, and on January 16, 2008, the jury
unanimously found Autrey not guilty on each of the three counts. Having received that
favorable verdict, the plaintiff filed a § 1983 complaint in federal district court on January
14, 2010, alleging that the City of Detroit itself and six individual police officials each acted
under color of state law to deprive him of his federal constitutional right to be free from
unreasonable searches and seizures and his right not to be deprived of liberty or property
without due process of law. In additional counts, the plaintiff also alleged that the
defendants were grossly negligent in the performance of their duties and that the
defendants were liable to Autrey under both federal constitutional law and under state tort
law for prosecuting him “with malice or a primary purpose other than that of bringing the
true offender to justice.”

The parties then engaged in extensive discovery before the defendants filed a joint
motion for summary judgment in their favor on all claims raised by Autrey. Prior to the

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resolution of that motion, the plaintiff voluntarily dismissed his claims against the City of
Detroit, and against certain police officials, leaving only Sergeant John Kennedy and
Commander Brian Stair as parties-defendant.

In addressing the summary judgment motion, the district court recognized that
Autrey could prevail on his claims of malicious prosecution and his Fourth Amendment
claim of wrongful arrest only if the plaintiff could somehow establish that no probable cause
for his prosecution had been established. Because a state-court judge had already
determined that probable cause existed to bind Autrey over for trial, however, the district
court determined that principles of collateral estoppel precluded the plaintiff from pursuing
a second time an identical challenge to the quantum of evidence necessary to initiate a
criminal prosecution. Additionally concluding that the plaintiff failed to make any showing
“that Kennedy and Stair provided false information or failed to provide material exculpatory
information to the assistant prosecutor,” the district court ruled that summary judgment in
favor of the defendants was proper. Autrey now appeals from that determination.

DISCUSSION

We review de novo the grant of summary judgment by a district court. See Ciminillo
v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Summary judgment should be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a). A genuine dispute of
material fact exists only when, assuming the truth of the non-moving party’s evidence and
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construing all inferences from that evidence in the light most favorable to the non-moving
party, there is sufficient evidence for a trier of fact to find for that party. A non-moving party
cannot withstand summary judgment, however, by introduction of a “mere scintilla” of
evidence in its favor. See Ciminillo, 434 F.3d at 464.

Before this court, the plaintiff first argues that the finding of probable cause by the
state judge at the preliminary-examination stage of the criminal proceedings should not
affect the federal courts’ decisions regarding the merits of his claims of wrongful arrest and
malicious prosecution.4 He does so even though each of those later claims contains, as
an element, the lack of probable cause to pursue the particular action. See, e.g., Criss v.
City of Kent, 867 F.2d 259, 262 (6th Cir. 1988) (wrongful arrest) (holding that the Fourth
Amendment requires a finding of probable cause as a condition for any significant pretrial
restraint of liberty); Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (malicious
prosecution under the Fourth Amendment) (holding that “the plaintiff must show that there
was a lack of probable cause for the criminal prosecution”); Matthews v. Blue Cross & Blue
Shield of Mich., 572 N.W.2d 603, 610 (Mich. 1998) (Michigan tort of malicious prosecution)
(holding that the plaintiff must show that the person instituting or maintaining the
prosecution lacked probable cause for bringing the action).

4

Although Autrey’s com plaint also raised allegations of gross negligence on the part of the defendants
in their perform ance of their law-enforcem ent duties, his appellate briefs neither allude to nor develop an
argum ent relating to such a negligence cause of action. Autrey’s conscious abandonm ent of this issue thus
results in waiver of that claim , which is not now reviewable even for plain error. See United States v.
Branham, 97 F.3d 835, 842 (6th Cir. 1996).

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When deciding what role the Michigan state court’s preliminary-examination
determination of probable cause should have in Autrey’s § 1983 action, we must “give
preclusive effect to state-court judgments whenever the courts of the State from which the
judgments emerged would do so.” Haring v. Prosise, 462 U.S. 306, 313 (1983) (quoting
Allen v. McCurry, 449 U.S. 90, 96 (1980)). Consequently, the threshold question to be
resolved in this appeal is whether rules of collateral estoppel applied in Michigan state
courts would foreclose a litigant in a later-filed civil action from challenging a finding of
probable cause previously made in a preliminary hearing during a criminal prosecution.

As a general rule, Michigan courts will apply collateral estoppel when: “(1) a
question of fact essential to the judgment must have been actually litigated and determined
by a valid and final judgment; (2) the same parties . . . had a full [and fair] opportunity to
litigate the issue; and (3) there [is] mutuality of estoppel.” Monat v. State Farm Ins. Co.,
677 N.W.2d 843, 845-46 (Mich. 2004) (citation, footnote, and internal quotation marks
omitted). However, mutuality of estoppel is “not required when collateral estoppel [is] being
used defensively,” Gilbert v. Ferry, 413 F.3d 578, 581 (6th Cir. 2005) (per curiam) (citing
Monat, 677 N.W.2d at 850).

Thus, when collateral estoppel “is asserted defensively to prevent a party from
relitigating an issue that such party has already had a full and fair opportunity to litigate in
a prior suit,” Monat, 677 N.W.2d at 850, the elements of the Michigan law of issue
preclusion may be further distilled. As the Sixth Circuit has noted, when arguing for the
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application of defensive collateral estoppel in Michigan courts, the party seeking to accord
preclusive effect to a prior court determination must establish that:

1) there is identity of parties across the proceedings, 2) there was a valid,
final judgment in the first proceeding, 3) the same issue was actually litigated
and necessarily determined in the first proceeding, and 4) the party against
whom the doctrine is asserted had a full and fair opportunity to litigate the
issue in the earlier proceeding.

Darrah v. City of Oak Park, 255 F.3d 301, 311 (6th Cir. 2001) (citing People v. Gates, 452
N.W.2d 627, 630-31 (Mich. 1990)).

In this appeal, Autrey cannot honestly dispute the applicability of the first two
elements of the collateral estoppel decisional framework. He does, however, contend
before this court that the issue that was resolved in the state-court probable-cause hearing
is not the same issue that is now disputed in his § 1983 litigation. Furthermore, the plaintiff
insists that he did not receive a “full and fair opportunity to litigate the [probable cause]
issue in the earlier proceeding.”

Autrey’s contentions are, however, based upon

misapprehension not only of the law, but also of the nature of the various decisional
settings as well.

In arguing that collateral estoppel should not be applied to his § 1983 action, Autrey
contends, “First, the probable cause determination at the state preliminary exam was not
essential to the eventual trial judgment that Commander Autrey was not guilty. In fact, the
probable cause determination was totally irrelevant to the judgment entered in favor of

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Commander Autrey at trial.” These statements made by the plaintiff in his appellate brief
are no doubt true. The mere determination by a judicial official that probable cause exists
to believe that a criminal offense has been committed and that a specified individual
committed that offense is, of course, not equivalent to – and not relevant to – the ultimate
determination of whether the individual is guilty of the charged offense beyond a
reasonable doubt. Autrey’s recitation of such an axiom is, however, equally irrelevant to
the resolution of the question whether a judicial determination of probable cause that a
person committed an offense is equivalent to a subsequent determination in a civil action
that law enforcement officials and prosecutors also had probable cause to initiate criminal
proceedings against that person in the first place.

The very formulation of the inquiry seems to suggest the only possible answer.
Despite the fact that the two probable cause determinations appear co-extensive, however,
Sixth Circuit jurisprudence has necessarily recognized that a state-court determination of
probable cause at a preliminary hearing sometimes may not encompass determinative
issues advanced in subsequent proceedings seeking monetary damages for false arrest
or malicious prosecution. In fact, such civil litigation can involve questions of whether
officers made materially false statements or omitted crucial information when presenting
their cases to a prosecutor, questions that are not necessarily at issue in preliminary

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hearings. See Darrah, 255 F.3d at 311.5 To the extent that a plaintiff in a § 1983 cause
of action can point to instances where the consideration of falsehoods or the omission of
material exculpatory evidence could have colored a state-court judge’s probable-cause
determination, there is no requirement that the initial finding be given preclusive effect in
the federal-court action. Autrey seeks to advance just such claims in this appeal.

Nevertheless, the mere allegation that false information was offered by the police
or that material evidence was withheld from the prosecutor does not necessarily make
such a statement true or even create a dispute of material fact for jury resolution. Indeed,
in this case, the plaintiff goes to great lengths to argue that Kennedy and Stair provided
false information to the prosecutor and also withheld crucial evidence from the prosecutor
so as to intimate that the decision to bind Autrey over for trial was not based upon a
complete understanding of the occurrences in the early morning hours of April 28, 2007.
Those efforts, however, do not come close to creating the dispute Autrey asks this court
to believe they do.

The plaintiff’s assertion that defendants Kennedy and Stair omitted key information
in their investigative report to the prosecutor is either a conclusion not borne out by the

5

Darrah was the subject of criticism in Hinchman v. Moore, 312 F.3d 198 (6th Cir. 2002), in which the
court said that it “frankly [found] the logic of Darrah’s collateral-estoppel holding questionable. A state court
judge ruling on the presence or absence of probable cause in a crim inal action m ust necessarily take into
consideration the veracity of the officers’ statem ents.” The Hinchman court nevertheless adhered to the
precedent established in Darrah. Id. at 203.

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appellate record or a mischaracterization of uncontroverted deposition testimony. In his
brief before this court, Autrey claims:

Kennedy submitted a warrant request totally devoid of any information other
than that which would lead the prosecutor to file charges. No exculpatory
information of any sort was included: Nothing was included about the
Serda’s [sic] decision to stop all notification and reports; nothing was
included about the IA Alert Team not being notified for over two hours;
nothing was included about the accident site not being treated as a police
scene for over two hours, and more particularly, not being treated that way
at the time Autrey picked up the garbage, child seat and bottles. Kennedy
knew he had a duty to include all exculpatory information to the prosecutor.
Stair, who also knew he had a duty to include full details including any
exculpatory information in the warrant request, signed off on Kennedy’s
request and Kennedy took it to Donaldson.

The only evidence in the record, however, paints a very different picture from the
one Autrey would have us accept. First, the appellate record contains absolutely no
information from which we could conclude that exculpatory information was intentionally
excluded from the packet of information provided to the prosecutor. During his deposition
testimony, for example, Stair candidly admitted:

Prior to submitting this investigator’s report, I had several conversations with
the Wayne County Prosecutor Bob Donaldson as to what was there, the fact
that Commander Autrey had made a statement. He didn’t want to know what
the statement was. He didn’t want it included in his file or any mention of it
in the investigator’s report, so, you know, to create that firewall so that there
are no Garrity issues in the trial.

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Nevertheless, Stair and Kennedy did note in the amended investigator’s report that
evidence considered by them included an “Inter-Office Memorandum prepared by the
defendant.”

Furthermore, Kennedy stated in his deposition that he personally delivered a packet
of information to the prosecutor prior to the prosecutor filing any charges against Autrey.
Included in that packet “would have been the PCRs [preliminary complaint records] or the
CRISNET reports,” “[t]he copies of the Garrity interviews with the witness officers, the
interoffice memorandum that was prepared by Commander, former Commander Autrey,
the accident report and whatever relative [sic] information regarding this matter would’ve
been in the report.”

The plaintiff also claims that the warrant request contained no mention of the facts
that certain notifications were not made and that the Internal Affairs Alert Team was not
notified until two hours after Bettison’s accident. Such “omissions” from the report are of
no import, however, because those facts in no way contradict the assertion that Autrey
improperly removed items from the scene of the accident. To counteract that evidentiary
insufficiency, the plaintiff additionally complains that the prosecutor would not have
pursued charges against him had the attorney been informed that the accident site had
never officially been declared a crime scene. Regardless of the lack of any such official
notice, even Autrey admitted that, upon his arrival at the scene, the area was still blocked
off by marked police vehicles. Moreover, although the plaintiff saw no police tape at the

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location indicating a crime scene, both Sergeant Hayes and Commander Serda testified
in their depositions that yellow crime-scene tape did in fact mark off the area when they
visited the scene, Serda doing so only shortly before Autrey’s arrival at the location.

Even assuming that the plaintiff’s assertions are correct, as we must do at the
summary judgment stage of the proceedings, the defendants and the prosecuting attorney
still would have been justified in pursuing charges against Autrey. The plaintiff himself
admitted that he knew, prior to disposing of the alcohol bottles, that Bettison’s bloodalcohol content was well above legal limits; therefore, the plaintiff should have known that
those bottles were of relevance to the investigation of the automobile accident. Thus, the
contention that the investigator’s report erroneously failed to emphasize that no crime
scene had been established at the crash site had no effect on the decision to bind the
plaintiff over for trial.

Similarly, there is no merit to Autrey’s claims that the defendants made material
misstatements to the prosecutor in order to influence that official to bring charges against
the plaintiff. Even though he did not argue during the preliminary examination that false
testimony was being offered, Autrey now points to several alleged falsehoods made by the
defendants: the claim in the warrant request that Autrey “responded” to the accident
location; the additional claim in the warrant request that indicates that an actual crime
scene had been designated; and the defendants’ assertion that “evidence” was removed
by the plaintiff. Those allegations of mendacity cannot withstand examination, however.

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First, it is true that the investigator’s report does state that the plaintiff “responded
to an accident location, which involved another off-duty Detroit Police Department
Commander and removed evidence from the crime scene and disposed of it.” Autrey
reads the statement that he “responded” to the location as an intimation that he was the
first police department employee, or at least the first official, to appear at the scene.
However, the fact that Autrey did not arrive at the crash site until some two hours after the
accident occurred in no way transforms the statement that he “responded” to the scene
into a falsehood.

Likewise, the report’s mention of a “crime scene” is not an indication that the
defendants made a material misstatement in their submission to the prosecuting attorney.
Regardless of whether any specific individual used the phrase “crime scene” on April 28
in reference to the accident site, the deposition testimony and other record evidence make
clear that at least two marked police cars secured the area around the crash for
approximately four hours and that crime-scene tape was placed around the vehicle and the
collision location in order to restrain civilians from entering the area.

Under such

circumstances, no reasonable person could contend that no “crime scene” had been
established.

Equally untenable is the plaintiff’s assertion that the investigative report’s reference
to Autrey’s removal of “evidence” indicates that defendants Kennedy and Stair were
untruthful. According to Autrey’s argument, because preservation of the wine-cooler

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bottles was not essential to the success of any prosecution of Bettison for operation of a
vehicle while impaired, referring to those bottles as “evidence” overstated the importance
of the items in the prosecutorial scheme. In making this allegation, Autrey highlights the
deposition testimony of Kennedy who stated that he originally did not believe that the
plaintiff was guilty of tampering with “evidence” because he assumed that the wine-cooler
bottles were not needed to build a case against Bettison, given that “the blood alcohol level
was so high.” However, Kennedy also indicated in that same deposition exchange with
Autrey’s counsel that “irregardless [sic] to him in my opinion, discarding the bottles, it
would’ve been nice to have as far as additional [evidence].”

In short, the plaintiff can point to nothing in the appellate record that properly can
be characterized as withheld, exculpatory evidence or as false testimony that was
presented to the prosecutor to encourage the bringing of charges against Autrey. Having
thus failed to differentiate the state-court probable-cause determination from the probablecause analysis in the federal cause of action on grounds that additional considerations are
at issue in this litigation, Autrey can prevail in his effort to defeat the application of
collateral-estoppel principles here only if he can demonstrate that he did not have a “full
and fair opportunity to litigate the [probable cause] issue in the earlier proceeding.”

In Coogan v. City of Wixom, 820 F.2d 170, 175 (6th Cir. 1987), overruled on other
grounds in Frantz v. Village of Bradford, 245 F.3d 869 (6th Cir. 2001), we explained:

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We do not hold that every determination in a preliminary hearing should be
given preclusive effect in a subsequent § 1983 action. Some preliminary
hearings are little more than formalities. Also, even when an opportunity for
full adversary proceedings is afforded, strategic concerns may counsel
against engaging in such an exercise at the early stages of a criminal
proceeding. However, where the state affords an opportunity for an accused
to contest probable cause at a preliminary hearing and the accused does so,
a finding of probable cause by the examining magistrate or state judge
should foreclose relitigation of that finding in a subsequent § 1983 action.

See also Smith v. Thornburg, 136 F.3d 1070, 1077 (6th Cir. 1998) (“[B]ecause plaintiff had
a full and fair opportunity to litigate whether probable cause existed to maintain [the] charge
against him, he is barred from relitigating that issue in this § 1983 action.”) (footnote
omitted); Restatement (2d) of Judgments § 27 (1982) (“When an issue of fact or law is
actually litigated and determined by a valid and final judgment, and the determination is
essential to the judgment, the determination is conclusive in a subsequent action between
the parties, whether on the same or a different claim.”). Clearly, the preliminary hearing
during Autrey’s state-court criminal proceedings was far from a “mere formality.” As
indicated by the district court:

The preliminary examination before Judge Lipscomb [in the 36th District
Court for the City of Detroit – Criminal Division] was an adversary proceeding
at which Autrey had a full opportunity to argue there was no probable cause
to try him for the crimes charged. Autrey was represented by competent
counsel (Michael Rataj). Counsel had an opportunity to call witnesses,
present exculpatory evidence, cross-examine witnesses, and argue for the
lack of probable cause. Rataj availed himself of these opportunities.

(Citations omitted.)

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Nevertheless, despite the efforts undertaken on his behalf at the preliminary
examination, the plaintiff contends before this court on appeal that he did not have the full
and fair opportunity to litigate the probable cause issue that would justify according the
state-court determination preclusive effect in this § 1983 litigation. As support for that
assertion, Autrey cites the provisions of § 28(1) of the Restatement (2d) of Judgments
(1982), which deny preclusive effect to a prior judgment when “[t]he party against whom
preclusion is sought could not, as a matter of law, have obtained review of the judgment
in the initial action.” Autrey submits that because he was ultimately acquitted of all criminal
charges against him, he was not allowed to appeal the earlier probable-cause
determination.

In making this argument, the plaintiff relies almost exclusively on a district court
opinion in Hirmuz v. City of Madison Heights, 469 F. Supp. 2d 466 (E.D. Mich. 2007).
Autrey maintains that Hirmuz supports his position, positing that the district court in that
case refused to accord preclusive effect in a § 1983 case to a state-court suppressionhearing ruling because Hirmuz’s subsequent acquittal on all criminal charges prevented
him from later appealing the determination that his confession to the police was voluntary.
In fact, although the district court did seemingly hold that collateral estoppel did not apply
in that case because “[t]he state trial judge’s decision on the voluntariness of the plaintiff’s
confession was not appealable because of the plaintiff’s acquittal,” id. at 479, the court’s
decision actually rested upon a much more fact-based ground. The district court’s opinion
in Hirmuz continued:
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Moreover, the state court judge did not hold that the statement was
voluntary. She merely held that there was a credibility issue to be
determined by a jury. Indeed, the criminal trial judge’s ruling itself suggests
that it did not have preclusive effect since she held that the issue could be
relitigated before the jury. The jury’s acquittal suggests that it did not accept
the validity or accuracy of the confession.

Id. (emphasis added).

Thus the validity of Hirmuz’s confession never was finally determined in state court.
The prior state-court ruling on that matter therefore could not serve to preclude a
relitigation of that issue in a later proceeding. Given those factual distinctions, Hirmuz does
not stand for the broad proposition that Autrey wishes to assign it.

Again, our evaluation of the fullness and fairness of the opportunity granted to the
plaintiff to litigate the probable-cause determination in this matter is constrained by the
clear dictates of Coogan and Smith. “[B]ecause plaintiff had a full and fair opportunity to
litigate whether probable cause existed to maintain [the] charge against him, he is barred
from relitigating that issue in this § 1983 action.” Smith, 136 F.3d at 1077. Autrey’s
challenge to the application of collateral-estoppel principles to his § 1983 cause of action
is without merit.

CONCLUSION

For the reasons set out above, we conclude that the district court appropriately
applied collateral estoppel principles to foreclose Autrey from relitigating in federal court
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the very issue that he had the opportunity to contest in a prior state-court proceeding. That
decision renders moot the other issues raised in this appeal.

The district court’s judgment is AFFIRMED.

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