Green v. Morsey et al

Filing 41

ORDER granting in part and denying in part 30 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JERMAINE GREEN,
Case No. 15-12508
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
A. MORSEY, ET. AL.,

U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendant.
/

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [30]
Plaintiffs filed suit against Defendants on July 15, 2015 [1]. Defendants filed
a Motion for Summary Judgment [30] on August 19, 2016. Plaintiffs responded on
September 28, 2016 [37] and Defendants replied on October 11, 2016 [39]. A
motion hearing was held on this pending motion on March 20, 2017. For the
reasons stated below, Defendants’ Motion for Summary Judgment [30] is
GRANTED IN PART in regards to Plaintiff’s state law claims and DENIED IN
PART in relation to Plaintiff’s §1983 claim.
FACTUAL BACKGROUND
On January 30, 2013, Plaintiff was having electrical service restored to his
house which lacked power. [37-2 at 25:11]. Plaintiff and his girlfriend, Chynna

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White (“Chynna”), left the house to get something to eat while the DTE Power
workers were restoring the electricity. [Id at 25:13-15]. While they were away, the
DTE workers called to inform them that a group of men had stolen a package from
Plaintiff’s back stoop. [Id at 29:6-14].
After getting the call, Plaintiff and Chynna returned to the house, parked the
car in the front, and proceeded to the back of the house. [Id at 32:13-20]. While
they were walking, a group on men appeared leaving the back of the house. [Id at
32:19-22]. Plaintiff confronted the group and asked them to return whatever they
had stolen. [Id at 32:22-23]. Plaintiff testified that his loaded glock .45 was in his
hip-holster that night, covered by his shirt. [Id at 47-48:19-15]. Plaintiff saw the
group of men were reaching and pulling up their pants and, threatened by those
actions, he fired a warning shot. [Id at 34: 1-6].
Following the warning shot, the men ran and jumped into a van or truck and
drove off. [Id at 33:8-13]. Once the men left, Plaintiff told Chynna to go into the
house and call the police [Id at 33:13-14]. Detroit Police Department’s Dispatch
(“dispatch”) received a call at 6:38:53 pm reporting a larceny at 17334 Salem
Street. There was no mention of shots having been fired. [30-3]. At 7:32:39 pm,
dispatch received a call, allegedly from Plaintiff’s neighbor, which reported that
someone who had threatened to shoot up her house, had subsequently fled the
scene in a silver Impala. [30-3].

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At 8:31:33 pm, dispatch received a call, which reported that a group of four
men had come with guns. threatening to shoot up the place, and were standing in
front of a brown Taurus parked at 17334 Salem. [30-5]. This information was
relayed to Officers Moresy and Sowle, who were sent to the location on a shots
fired run. [30-5]. Due to the nature of the calls relating to the address, and the
potential for confrontation, Officers Lyons and Terechenok were called for back
up. [30-6]. These officers were in the area investigating a report of a dark truck
firing shots from an AK-47 out of their window. [30-6].
As Officers Sowle and Mosey approached the scene, they observed a group
of men standing next to a brown Ford Taurus parked in front of 17344 Salem run
to the rear of the premesis. [30-4]. Officer Sowle spoke with Plaintiff’s neighbor at
17355 Salem Street. [30-4]. She indicated that her neighbor (Plaintiff) “had been
outside flashing a gun that was in his waistband to her and visitors that were at the
home shortly before (police arrived),” and that she had heard one shot fired. [30-4].
Officer Lyons testified that he knocked on the front door of 17334 Salem
Street and a woman, who appeared to be visually upset and crying, appeared at the
door. [37-4 at 11:1-2]. The door was a security door that the woman stated she
could not open without the key, which was in possession of her boyfriend [30-4].
Officer Lyon also saw two men inside of the house. [37-4 at 11:20-23]. The
woman indicated that she would open the back door for the officers.

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Officer Lyons and Terechnok headed to the back door and, during this time,
heard loud crashing inside the home, accompanied by crying and screaming. [30-4;
37-4 at 12:9-16]. Officer Lyons reached the back door and began knocking
forcefully. [30-4]. Plaintiff testified the door was being kicked by the police, and
that it was “jumping” when the officers arrived at the back door. [37-2 at 64:4-8].
Officer Lyons testified that the young woman opened the door [37-4 at 13:18],
while Plaintiff stated that he opened the door [37-2 at 65:5].
Plaintiff testified that the police had their weapons drawn, and called for all
people to exit the house and that four individuals and the young woman from the
front door were inside the house, and detained for investigation while an officer
entered the house to search. [37-2 at 65:16-22; 30-4]. Officers Lyons, Morsey and
Sowle stated that they detained the individuals in the kitchen next to the door after
they entered the house to do a protective sweep. [37-2 at 67:20].
It is unclear whether the people in the house were kept inside the house, or
came outside, prior to being detained. It is also unclear who opened the back door.
These are questions of fact that are material to the exigency and qualified
immunity analysis, and therefore a possible material issue of fact remains disputed
at this time, and summary judgment should not be granted on the claims that
concern the legality of the warrantless search of the house.

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During the protective sweep of the house, Officer Morsey’s report indicates
that he smelled a strong odor of marihuana inside the house [30-4]. During this
sweep of the house, Defendants Morsey and Sowley went down the basement
stairs from the kitchen and discovered thirty-eight marihuana plants under heat
lamps in plain sight. [30-4]. Following the search, Officer Morsey asked who was
the owner of the house at 17334 Salem. Plaintiff identified himself as the owner
[30-4]. Plaintiff also admitted to shooting his gun, but clarified that he had a
Concealed Pistol License card (“CPL”). Id. Plaintiff subsequently produced the
card to Officer Morsey, who ran the number through LIEN and discovered that the
license had been revoked. [30-8]. When questioned about his gun, Plaintiff stated
that he did not have his weapon on his person [30-4]. Officer Morsey found a
silver, five-shot revolver on Plaintiff’s lawn with four live rounds. [30-9]. Based on
the evidence and admissions by Plaintiff, he was issued a ticket for discharging a
weapon within city limits. Id. A narcotics officer arrived on scene and assisted in
seizure of the marihuana plants, the lights and ancillary equipment, since Plaintiff
could possess no more than twelve live plants as a registered patient with a medical
marihuana card. Id.
Plaintiff was taken to the Sixth Precinct and processed at 10:30pm. Id. He
was released at 1:40pm on February 3, 2013, on a personal bond of $10,000. Id. He
was charged with two counts in Wayne County, which included a charge of

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controlled substance delivery manufacture of marihuana and a weapons felony
firearm. [30-11]. At the preliminary examination hearing, the evidence was
suppressed. Judge Bryant-Weekes found that: (1) insufficient testimony was
presented to show exigent circumstances at 17334 Salem; and (2) there was no
evidence presented to show Plaintiff owned the property in question.1 Therefore,
the drug charge was dismissed due to the suppression of evidence illegally seized
from the home, and the felony firearm charge was dismissed because the
underlying felony charge was no longer valid. [37-3]. Plaintiff alleges that his
basement incurred damage to the ceiling following the search, and that his
marihuana and cash was never returned.
STANDARD OF REVIEW
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The moving party
has the burden of establishing that there are no genuine issues of material fact,
which may be accomplished by demonstrating that the nonmoving party lacks
evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The Court must construe the evidence and all reasonable
1

The testimony did not elicit or present the statement of ownership made to
Officer Morsey by Plaintiff as reported by Officer Morsey on the night of arrest.
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inferences drawn therefrom in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A genuine issue for trial exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
ANALYSIS
1. CROSS-OVER ESTOPPEL
Plaintiff argues that “cross-over estoppel” under Michigan law dictates a
finding that the Defendants lacked probable cause. Therefore, Plaintiff argues, that
the City of Detroit Criminal Division Judge’s finding that there was no probable
cause to enter Plaintiff’s home is applicable in this case and Defendants should not
be able to relitigate the issue in this case.
In a §1983 case, a Court must apply state law to determine whether a State
Court’s judicial decision has a preclusive effect. Burda Bros., Inc. v. Walsh, 22 F.
App'x 423, 430 (6th Cir. 2001). Under Michigan law, collateral estoppel prevents
relitigation of an issue in a subsequent case between the same parties or their
privies when the earlier proceeding resulted in a final judgment, when the issue
was actually litigated, and when it was necessary for the result. People v. Gates,
434 Mich. 146, 452 N.W.2d 627, 630–31 (1990). In order for an issue to be
actually litigated, the party against whom estoppel is asserted must have had a full

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and fair opportunity in the previous proceeding to litigate the issue. Id. Michigan
law also fully embraces “cross-over estoppel,” “where an issue adjudicated in a
civil proceeding is claimed to be precluded in a subsequent criminal proceeding, or
vice versa.” Id.
Michigan courts have relaxed the mutuality standard for defensive use of
collateral estoppel because the Plaintiff had an opportunity to litigate the issue in a
prior proceeding. Monat v. State Farm Ins. Co., 469 Mich. 679, 690, 677 N.W.2d
843, 850 (2004). However, when used offensively, the Sixth Circuit has interpreted
Michigan law to require mutuality, and declined efforts of Plaintiffs in the civil
action to estop Defendants from relitigating an issue previously determined in a
state court criminal proceeding. See e.g. Burda Bros., Inc. v. Walsh, 22 F. App'x
423, 430 (6th Cir. 2001). The Court has recognized that in §1983 cases, individual
police officers are not in privity with the People for mutuality purposes in the
prosecution from the criminal case, and therefore did not have the opportunity to
litigate the issue in the state court criminal case. Id. Because they had no personal
stake in the previous state case, police officers are not precluded from religitating
any issues determined by the state court. Therefore, the issue of probable cause is
not yet determined in this proceeding and Defendants are free to relitigate the issue
in this case.

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2. §1983 FOURTH AMENDMENT CLAIM FOR UNLAWFUL SEARCH AND
SEIZURE
The Fourth Amendment requires that searches of a home be reasonable.
Thacker v. City of Columbus, 328 F.3d 244, 252 (6th Cir.2003). A search of a
home, absent a warrant, is “presumptively unreasonable unless the government
proves otherwise. United States v. Huffman, 461 F.3d 777, 782 (6th Cir. 2006).
a. QUALIFIED IMMUNITY
“[G]overnment officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982). Qualified immunity “gives ample room for mistaken
judgments by protecting all but the plainly incompetent or those who knowingly
violate the law.” Hunter v. Bryant, 502 U.S. 224, 229, 112 S. Ct. 534, 537, 116 L.
Ed. 2d 589 (1991), citations omitted. In the Sixth Circuit, Courts undertake a twostep inquiry: “(1) whether the facts, when taken in the light most favorable to the
party asserting the injury, show the officer's conduct violated a constitutional right;
and (2) whether the right violated was clearly established such “that a reasonable
official would understand that what he is doing violates that right.” Mullins v.
Cyranek, 805 F.3d 760, 765 (6th Cir. 2015).

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i. WERE PLAINTIFF’S FOURTH AMENDMENT RIGHTS VIOLATED
Violation of a constitutional right depends on whether the defense can show
that an exception to the warrant requirement applied since it is undisputed that the
officers on the scene did not have a warrant that permitted them to enter Plaintiff’s
home. The Supreme Court has carved out exceptions to the warrant requirement,
one of which is the exigent circumstances exception. Id. Under this exception, a
warrantless entry to a home can be reasonable if the Government can prove that
“the exigencies of the situation make the needs of law enforcement so compelling
that a warrantless search is objectively reasonable under the Fourth Amendment.”
Brigham City, Utah v. Stuart, 547 U.S. 398, 402 (2006).
One situation that qualifies as an exigent circumstance is “the need to assist
persons who are seriously injured or threatened with such injury.” Nelms v.
Wellington Way Apartments, LLC, 513 F. App'x 541, 545 (6th Cir. 2013), citing
Brigham City, Utah, 547 US at 403. Under this exception, officers may “enter a
home without a warrant to render emergency assistance to an injured occupant or
to protect an occupant from imminent injury.” Id. “[I]ronclad proof of a likely
serious, life-threatening injury is not required to invoke the emergency aid
exception” but the “decision to enter must be based on more than a hunch or the
mere possibility that someone inside needs immediate aid.” Id, citations omitted. In
reviewing whether the officers’ actions were objectively justified, the Court

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considers the “totality of the circumstances and the inherent necessities of the
situation at the time.” United States v. Huffman, 461 F.3d 777, 783 (6th Cir. 2006).
Defendants argue that exigent circumstances justified the officers’ actions
and therefore this claim should be dismissed. Defendants cite to several Sixth
Circuit cases to support a finding of exigency. However, all of these cases are
easily distinguishable.
Dickerson v. McClellan concerned a dispatch call where nine shots were
fired from inside a house and in which the shooter had not left the house yet. 101
F. 3d 1151 (6th Cir. 1996). As the Court in Dickerson pointed out, the fact that the
man had fired his weapon nine times from inside his house provided more than a
hunch that he was willing to use the weapon and possibly harm other people who
were reasonably suspected to be inside the house. 101 F. 3d at 1160. This case
concerns a single shot fired outside of the house that was reported. Additionally, as
the officers in Dickerson approached the house, they heard a male voice yelling
threateningly, smelled freshly burnt gunpowder, and heard a man yell “I‘ve got
something for your ass” and a cylinder close on a revolver. Id at 1154.
In this case, at best, the only sound that was heard was a distressed call from
a female. However, per the facts presented by Plaintiff, the female and several
other unknown males had all exited the house and were detained by the fence. It

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was easily ascertainable at that time that the woman was safe, and therefore no
exigent circumstances existed. Even under the Defendant’s set of facts, once the
female appeared at the door, they could easily talk to her and see she was not in
danger, the exigency ceased to exist, absent any evidence that there was belief that
there was another injured party remaining in the house. In fact, this was the very
logic followed by the state court Judge who suppressed the evidence found in the
house, based on the fact that there was no exigency because the police officers
established that the woman in question was safe without having to enter the house.
In Causey v. City of Bay County, there were six shots fired from inside the
house. 442 F.3d 524, 529 (6th Cir. 2006). When the police investigated, they found
that a hangup call to 911 had been made, and that a return call made to 911 had
explained a child had made the call. Id at 526. The neighbor told the police in
Causey that she did not believe that a child was in the home. They found shell
casings in the backyard, were told that a child had made the call, although no
children were thought to be in the house. Based on that information, and a lack of
response from the house, a warrantless entry into the home was found permissible
to check for possible injured parties.
In this case, the single shot fired occurred outside the house, and the
retreating group of men was not seen to have entered the house. Additionally, in

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this case, there is at best a weak argument for a continuing exigent circumstance
since there are no additional facts or investigation that took place. In Causey, the
officer on the scene questioned the neighbor twice, and followed up on information
regarding a hangup 911 call. In this case, other than the initial knock and
discussion with Chynna at the front door, there was no additional investigation or
questioning before entry into the house. There is also a weak argument for
continuing exigency since the police only testify to worrying about the welfare of
the woman, Chynna, who in both Plaintiff and Defendant’s versions of the story,
was plainly not injured. The officers had opportunity to continue questioning, or to
obtain a warrant to continue the investigation through entry of the house.
While Defendants argue that Causey supports a finding of exigency because
that case found that the difference between nine shots or six shots did not
undermine a finding of exigency, one shot is vastly different from six shots in
succession, and, given the totality of the circumstances facing the officers that
night, a warrantless entry into the house violated Plaintiff’s Fourth Amendment
rights. Id at 530.
Finally, Defendants argue that United States v. Hoffman supports a finding
of exigency because, like Hoffman, the Defendants confirmed the 911 call of shots
fired with the witnessing caller. 461 F. 3d 777, 782 (6th Cir. 2006). However, the

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fact remains that, considering the totality of the circumstances based on the facts
presented, there does not appear to be a valid case of exigent circumstances. The
Defendants in this case appear to have relied on no more than a hunch that there
existed additional possibly harmed parties within the house, despite seeing that the
woman, whom they feared was harmed, appeared uninjured before them. A mere
hunch is never enough to sustain a valid exigent circumstance defense to a
warrantless search, especially of a suspect’s home. Brigham City, Utah, 547 US at
403. Therefore, the Court finds that the Fourth Amendment rights of Plaintiff were
violated by the warrantless search of his residence.
ii. COULD ANY REASONABLE OFFICER BELIEVE THE SEARCH
WAS AND SEIZURE WAS LAWFUL?
Defendants argue that qualified immunity should apply in this case, citing
O’Brien v. City of Grand Rapids, 23 F. 3d 990 (6th Cir. 1994). However, that case
is easily distinguishable since the suspect initially came to door with gun in hand,
barricaded himself in the home, had previously shot and wounded a citizen in the
front yard of the very house in which he was barricaded, had a history of violence
and associated mental problems, and had caused the neighborhood to be evacuated.
Id at 999-1000. That case clearly presents a vastly different set of circumstances
than the one currently before the Court.

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Viewing the facts in the light most favorable to the non-moving party, the
Plaintiff and all present in the house were detained outside of the house before the
Defendants conducted a “protective” search. Scott v. Harris, 550 U.S. 372, 378,
127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting United States v. Diebold, Inc.,
369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Per the Plaintiff’s account,
all those inside the house had willingly exited the premises and were detained in
the backyard prior to the Defendants entering the house. A reasonable officer
would likely understand that searching a house without a warrant at that point
would violate the Fourth Amendment as they had the opportunity to speak with the
members of the house who were detained next to the fence to investigate whether
there were any other people present in the house. The sole person the Defendants
continuously identified as the person whose welfare was at risk, the female
occupant of the house, was outside and clearly unharmed. Without any evidence
presented to suggest that the officers had any concern about other people inside the
house, that Defendants do not have qualified immunity on this charge.
Additionally, there is a genuine dispute as to material facts regarding this
claim. Plaintiff’s attorney stated that there were disputes regarding material facts at
the oral argument and in her response brief. Plaintiff claims that himself, Chynna,
and the men inside of Plaintiff’s house were detained and questioned outside of the
house before the police officers entered the house to search. Defendants state that

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the people were detained and questioned inside the house in the kitchen after
Defendants entered the house to ensure the safety of all those inside. Plaintiff
testified that he opened the door for the police, while Defendants state that Chynna
opened the door. Given the disagreement on these material facts, Defendants are
not entitled to summary judgment. Fed. R. Civ. P. 56(a).
A. PLAINTIFF’S STATE LAW CLAIMS
The Court has original jurisdiction over Plaintiff’s §1983 claim. Plaintiff also
brings state law claims of false arrest, false imprisonment, malicious prosecution
and trespass before the Court over which the Court could exercise supplemental
jurisdiction. 28 U.S.C. §1367. Supplemental jurisdiction “need not be exercised in
every case in which it is found to exist” and rather the Court should consider
“judicial economy, convenience and fairness to litigants” when determining
whether to dismiss state claims or not. United Mine Workers of Am. v. Gibbs, 383
U.S. 715, 726 (1966). “Needless decisions of state law should be avoided both as a
matter of comity and to promote justice between the parties, by procuring for them
a surer-footed reading of applicable law.” Id.
In this case, Plaintiff’s attorney could not offer any persuasive arguments as
to why the state-law claims should remain in this Court. Because an exercise of
supplemental jurisdiction will not serve to promote judicial economy, fairness to
the parties or convenience, Plaintiff’s claims of false arrest, false imprisonment,

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malicious prosecution and trespass are dismissed without prejudice. Plaintiff may
raise these claims in state court if he so wishes and take advantage of the state
court’s expertise on these matters.
IT IS ORDERED that Defendant’s Motion for Summary Judgment is
DENIED as to the §1983 claim.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment is GRANTED as to Plaintiff’s claims of false arrest, false imprisonment,
malicious prosecution and trespass. These claims are DISMISSED without
prejudice.
SO ORDERED.

Dated: March 27, 2017

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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