McCallum et al v. Geelhood et al

Filing 37

ORDER Granting Plaintiff's 25 Motion for Summary Judgment and Denying Defendant's Cross 29 Motion for Summary Judgment. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY MCCALLUM,
ELAINE MCCALLUM,
Plaintiffs,

CASE NO. 15-12676
HON. DENISE PAGE HOOD

v.
STEPHEN GEELHOOD,
AMY MATELIC,
BRYAN WATSON,
STEVEN RILEY,
LARRY BARNETT,
DAVID HANSBERRY,
GREGORY TOURVILLE,
DETROIT, CITY OF,
Defendants.
/
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT [#25] AND DENYING DEFENDANT’S CROSS MOTION FOR
SUMMARY JUDGMENT [#29]
I.

INTRODUCTION AND BACKGROUND
Anthony McCallum and wife, Elaine McCallum, sued Detroit Police

Officers Stephen Geelhood, Amy Matelic, Bryan Watson, Steven Riley, David
Hansberry, Gregory Tourville, and the City of Detroit for malicious prosecution
and municipal liability in violation of 42 USC § 1983. The individuals were
members of a now defunct Detroit Police Narcotics Unit. There are two named

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Plaintiffs, but only Plaintiff Anthony McCallum filed a summary judgment motion
against Defendant Matelic. She responded by filing a cross motion for summary
judgment claiming she is entitled to qualified immunity. (Doc. # 29)
On April 25, 2013, Matelic wrote an affidavit in support of a search warrant
for Plaintiff’s residence on 16421 E. State Fair in Detroit. (Doc. 25-1) The
affidavit stated:
On 4/25/13, Affiant (Matelic) working with P.O Geelhood received
confidential information from a credible and reliable confidential informant
regarding illegal narcotics, which are being stored and sold form 16241 E,
State Fair in the City of Detroit and County of Wayne, Michigan. This
confidential informant has provided information in the past regarding
illegal narcotic trafficking on at least (3) prior occasions resulting in the
confiscations of large amounts of cocaine, heroin, marijuana, firearms and
narcotic proceeds. Through the efforts of this confidential informant, P.O.
Geelhood has cases pending in 36th District and 3rd Circuit Courts. The
confidential informant stated that he/she was inside of 16421 E. State Fair
with an unwitting person during the past 48 hours and observed large
amounts of cocaine being sold and stored within. On 4/25/13, Affiant and
P.O. Geelhood conducted surveillance at the above location. During the
course of 35 minutes, Affiant observed (3) suspected buyers . . . on separate
occasions, walk up and drive up to the location, knock, engage in a brief
conversation with the above SELLER, and then enter 16421 E. State Fair.
The suspected buyers would remain inside of the location for
approximately 2-3 minutes and then leave the location. Affiant did not stop
suspected buyers due to the fact it may compromise the investigation.

(Doc. 25-1 at 1)
Thirty-Sixth district court Magistrate Judge Barthwell issued a search
warrant for 16421 E. State Fair. The warrant identified a “Suspected Seller” who
was to be searched as a “B/M/35-40 5’10/180 with a possible street name of
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‘Dre.’” (Doc. 25-1 at 2) The warrant also identified “Dark Blue Ford F150 Pickup with rims” to be searched. Id.
Officers executed the search warrant and found drugs. However, they did
not find a Ford F-150, and the man they arrested did not match the description of
“Dre.” McCallum was 46 years old, 5’4” and 165 pounds. Plaintiffs note that
during the arrest and raid Officers Geelhood and Lieutenant Hansberry kept asking
Plaintiffs where was Dre, clearly indicating that they knew Mr. McCallum was not
“Dre.”
McCallum challenged the warrant; a Franks hearing was held. During the
hearing regarding the affidavit, Defendant Matelic and the court engaged in the
following exchange:
THE COURT: . . . I'm looking at your affidavit here and it says affiant,
that's you, working with PO Gill Hood (sic) received confidential
information from a credible and reliable confidential informant regarding
illegal narcotics, et cetera, et cetera.
Now, as I understand your testimony, you did not actually receive the
information from the informant?
THE WITNESS: Correct.
THE COURT: Your affidavit seems to suggest that you did receive it
together with Gill Hood (sic). But you mean to say Gill Hood (sic) got it
from the informant and then gave it to you?
THE WITNESS: Correct. I must of-- I'm sorry. I must of wrote it the
confusing.

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THE COURT: All right. You didn't have any direct conversation with the
informant?
THE WITNESS: Correct.
THE COURT: Now, the, the informant here is described by you as credible
and reliable, but what -- do you even know who the informant is? Did Gill
Hood (sic) tell you who it was?
THE WITNESS: No.
THE COURT: He didn't tell you who it was. And so how do you know that
the informant was credible and reliable?
THE WITNESS: I guess I was -- I wanted to write it so that it looked like it
came from him; that he's telling me he's credible and reliable. He has used
him.

(Doc. # 25-2 at 36-37) Matelic admitted she only observed the three individuals
enter and exit McCallum’s residence. Id.
The court was troubled about the manner in which the affidavit was written:
THE COURT: . . . I mean, and I hate to be melodramatic, but, you know,
frankly this is a false affidavit. Now, maybe because of sloppiness. But the
fact of the matter is the affidavit very clearly signals that this affiant,
witness, is the person that had direct communication with the SOI. . . . Very
clearly the affiant gave the impression in the affidavit that she had firsthand
knowledge of this contact with the SOI. That's the way it was presented to
the magistrate. That's my problem.

The court adjourned the Franks hearing and continued it on August 8, 2013.
During the second hearing the court stated:
THE COURT: based on Amy Matelic's testimony the last time we were on
the record she actually did not have any direct conversation with the
informant. She doesn't have any experience with the informant. She implies
in her affidavit that both she and Gil Hood (sic) received confidential
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information. Well, she doesn't imply that. She says it. And that turns out not
to be the case. Only Gil Hood (sic) received it, and only Gil Hood had the
experience. And Gil Hood is not a signatory to the affidavit. So the
affidavit I mean really just cannot be ascribed as anything other than false
in that respect. The, the affiant actually did not have the experience with the
informant or conversations or, or any contact. Didn't have and actually said
on the stand she didn't know who he was or she was. . . . I am going to
strike the first two paragraphs of the affidavit, and that leaves only what
was honestly averred in the affidavit. And that is that she and Gil Hood
conducted surveillance on the above location. That but in and of itself
clearly does not provide probable cause for the warrant.

(Doc. # 25-4 6-8) Consequently, the evidence was suppressed and the case was
dismissed based on the judge’s decision that there was no probable cause to
support the search warrant. Id. at 8.
II.

STANDARD OF REVIEW
The Court will grant summary judgment 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); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250-57 (1986). A fact is material if it could affect the outcome of the case
based on the governing substantive law. Id. at 248. A dispute about a material fact
is genuine if on review of the evidence, a reasonable jury could find in favor of the
nonmoving party. Id.
The moving party bears the initial burden to demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant meets this burden, the nonmoving party must “go beyond the
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pleadings and … designate specific facts showing that there is a genuine issue for
trial.” Id. at 324. The Court may grant a motion for summary judgment if the
nonmoving party who has the burden of proof at trial fails to make a showing
sufficient to establish the existence of an element that is essential to that party's
case. See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870,
873 (6th Cir. 2003). “The mere existence of a scintilla of evidence in support of
the plaintiff's position will be insufficient; there must be evidence on which the
jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
“Conclusory allegations do not create a genuine issue of material fact which
precludes summary judgment.” Johari v. Big Easy Restaurants, Inc., 78 F. App’x
546, 548 (6th Cir. 2003).
When reviewing a summary judgment motion, the Court must view the
evidence and all inferences drawn from it in the light most favorable to the
nonmoving party. Kochins v. Linden–Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.
1986). The Court “need consider only the cited materials, but it may consider
other materials in the record.” Fed. R. Civ. P. 56(c)(3). The Court’s function at
the summary judgment stage “is not to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249.

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III.

ANALYSIS
Matelic claims she is entitled to qualified immunity. According to Matelic,

the information in the affidavit was accurate, since Defendant Geelhood had
firsthand knowledge of information conveyed by the confidential informant.
Matelic claims that because officers are allowed to rely on information conveyed
by other officers to establish probable cause, she is entitled to qualified immunity.
See generally, Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568
(1971). McCallum disagrees and contends Matelic is not entitled to qualified
immunity because she knowingly lied in the affidavit to create probable cause.
Qualified immunity protects state actors sued under § 1983 from damages
liability as long as “their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231(2009) (quotation marks omitted). The determination
of whether a government official is entitled to qualified immunity is a two-step
inquiry: “First, viewing the facts in the light most favorable to the plaintiff, has the
plaintiff shown that a constitutional violation has occurred? Second, was the right
clearly established at the time of the violation?” Miller v. Sanilac Cnty., 606 F.3d
240, 247 (6th Cir.2010) (internal quotation marks and citations omitted).
The Fourth Amendment requires that an arrest be supported by probable
cause. U.S. Const. Amend IV. “Probable cause is based upon knowledge or
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reasonably trustworthy information that would lead a reasonable person to believe
that an offense has been or is being committed.” Donta v. Hooper, 774 F.2d 716,
721 (6th Cir. 1985). “In § 1983 actions, an officer ordinarily receives qualified
immunity if he or she relies on a judicially secured warrant.” Hale v. Kart, 396
F.3d 721, 725 (6th Cir. 2005). However, “officers cannot rely on a warrant if the
officer knowingly made false statements or omissions in the affidavit which are
necessary to establish probable cause.” Yancey v. Carroll County, 876 F.2d 1238,
1243 (6th Cir.1989). An officer can be liable under § 1983 for an illegal search or
seizure when the officer “knowingly and deliberately, or with a reckless disregard
for the truth” makes “false statements or omissions that create a falsehood” and
“such statements or omissions are material, or necessary, to the finding of probable
cause.” Peet v. City of Detroit, 502 F.3d 557, 570 (6th Cir. 2007) (quoting Wilson
v. Russo, 212 F.3d 781, 786–87 (3d Cir.2000)).
An assertion is made with reckless disregard when, after viewing all the
evidence, the affiant entertained serious doubts as to the truth of her statements or
had obvious reasons to doubt the accuracy of the information reported. Peet, 502
F.3d at 571 n.3. Omissions are made with reckless disregard if an “officer
withholds ‘a fact in his ken’ that ‘any reasonable person would have known . . . is
the kind of thing the judge would wish to know.’” Id. (quoting Wilson, 212 F.3d at
788).
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McCallum has shown that a constitutional violation occurred. Matelic did
not have probable cause to enter Plaintiffs’ home, arrest Plaintiffs, or help institute
legal proceedings against Plaintiffs. Matelic’s statements were false and those
statements were essential to the finding of probable cause of the warrant. The
affidavit insinuated that Matelic received the information directly from the
informant, rather than her partner Officer Geelhood. This was inaccurate. The fact
that Matelic did not receive the information directly from the informant and does
not even know anything about the informant is pertinent information that the judge
felt the court should have known. Although Officer Matelic may not have
intended to do so, even viewing the evidence in the light most favorable to Matelic,
she at least demonstrated a reckless disregard for the truth when she wrote the
affidavit. There is no genuine issue for trial, and there is no question of material
fact as to whether McCallum has satisfied the first step in determining that
qualified immunity does not apply.
There is also no material question of fact that Plaintiffs established the
second prong in demonstrating that qualified immunity does not apply. Individuals
have a clearly established federal right not to be arrested without probable cause.
Donta v. Hooper, 774 F.2d 716, 721 (6th Cir. 1985). Falsifying facts to establish
probable cause and relying on warrants obtained through false or misleading
statements is unconstitutional. Sykes, 625 F.3d at 305. Any reasonable officer
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would know that engaging in such conduct to manufacture probable cause is
unconstitutional. Accordingly, Matelic is not entitled to qualified immunity.
IV.

CONCLUSION

For the reasons set forth above,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Summary Judgment
(Doc. # 25) is GRANTED.
IT IS FURTHER ORDERED that Defendant Matelic’s Cross Motion for
Summary Judgment (Doc. # 29) is DENIED.

Dated: March 31, 2017

s/Denise Page Hood
Chief, U.S. District Court

I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 31, 2017, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager

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