Brennan v. Dawson et al
OPINION AND ORDER granting 14 defendants' Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-10119
HON. GEORGE CARAM STEEH
DEPUTY JAMES DAWSON,
SHERIFF JOHN WILSON, and
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (DOC. 14)
Plaintiff Joshua Brennan brings claims pursuant to 42 U.S.C. § 1983,
alleging that defendants Deputy James Dawson, individually and in his
official capacity, Sheriff John Wilson, in his official capacity, and Clare
County violated his Fourth Amendment rights. This matter is presently
before the Court on defendants’ motion for summary judgment. (Doc. 14).
Pursuant to Local Rule 7.1(f)(2), the Court shall rule without oral argument.
For the reasons stated below, defendants’ motion is GRANTED.
Plaintiff was placed on probation on August 11, 2014, following an
assault and battery conviction in Gladwin County. (Doc. 14-4 at PageID
113). On February 21, 2015, Clare County Sheriff’s Department Deputy
James Dawson traveled to 2184 Oakridge Drive in Farwell, Michigan, to
conduct a probation check on plaintiff. (Doc. 14-3 at PageID 109). This
check was to include a Preliminary Breath Test (PBT). (Id.). The eighth
term of plaintiff’s probation states that he must “[n]ot possess or consume
alcoholic beverages nor enter any establishment which allows for the
consumption of alcoholic beverages on its premises, nor be in the company
of anyone consuming alcohol. You are subject to random PBT upon
demand at your expense.” (Doc. 14-4 at PageID 113).
Deputy Dawson was aware that Clare County Sargent Miller and
Deputy Piwowar had attempted to check on plaintiff the night before,
February 20, 2015. (Doc. 14-3 at PageID 109). An individual named
Joshua Dishneau emerged from plaintiff’s home as the officers arrived.
(Id.). He indicated that plaintiff was awake inside the home. (Id.). Miller
and Piwowar attempted to contact plaintiff by knocking and announcing for
over a half hour, but no one answered. (Id.).
Dawson arrived at plaintiff’s mobile home at 8:18pm. (Doc. 14-3 at
PageID 111). He approached and knocked on the front doors. (Doc. 14-3
at PageID 109). No one answered. (Id.). Dawson heard people moving
and speaking inside the home and believed that someone was inside. (Id.).
He walked around the home knocking on various windows. (Id.). No one
answered, but Dawson continued to hear some movement and speech.
(Id.). Dawson then returned to his vehicle and activated his emergency
lights and siren. (Doc. 1 at PageID 4). Dawson also noticed surveillance
cameras on plaintiff’s porch. (Id.). Dawson adjusted the cameras to alter
their viewpoint and thereafter obscured the lenses with caution tape. (Id.).
Ashley Wright arrived at plaintiff’s home around 9:12pm. (Doc. 14-3
at PageID 111). Dawson and Wright’s interaction lasted approximately 20
minutes. Wright initially told Dawson that she received a call stating the
home’s occupant was on vacation and asking her to visit to determine why
officers were present. (Doc. 14-3 at PageID 109). Dawson questioned
Wright’s story. In response, Dawson alleges that she changed her story to
reflect that her brother had received a call from the home occupants.
Dawson followed up on this story. Wright changed her statement again,
stating that her father received a call. (Doc. 14-3 at PageID 109). Dawson
spoke with Wright’s father and determined that was not true. Wright
became flustered and Dawson responded that she could leave and that he
would simply wait for plaintiff or another occupant to answer. (Doc. 14-6).
Plaintiff exited his home around 9:50pm. (Doc. 14-3 at PageID 109).
He stated that he was ill and had been asleep. He submitted to a PBT.
(Doc. 14-3 at PageID 110). Test results indicated that plaintiff had 0.000
grams of alcohol per 210 liters of breath. (Id.). Dawson arrested plaintiff
for violating his probation term ordering submission to PBT on demand.
(Id.). These circumstances, where others told multiple lies to deceive
officers about plaintiff’s presence in the home, and the efforts plaintiff went
to in order to remain inaccessible, could reasonably lead officers to believe
that plaintiff was violating his conditions of probation by obstructing the
administration of the PBT. Plaintiff was transported to the Clare County jail.
(Id.). He remained there until his arraignment on February 24, 2015, where
Magistrate Karen Willing of the 80th District Court dismissed the alleged
probation violation. (Doc. 1 at PageID 5).
II. Legal Standard
Rule 56(c) empowers a court to render summary judgment “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.” Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en
banc) (citing Fed. R. Civ. P. 56(c)). The standard for determining whether
summary judgment is appropriate is “‘whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’” Amway Distrib.
Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
Mere allegations or denials in the non-movant's pleadings will not meet this
burden, nor will a mere scintilla of evidence supporting the non-moving
party. Anderson, 477 U.S. at 248, 252. There must instead be evidence
from which a jury could reasonably find for the non-movant. McLean, 224
F.3d at 800 (citing Anderson, 477 U.S. at 252).The evidence and all
reasonable inferences must be construed in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Redding v. St. Eward, 241 F.3d 530, 532 (6th
Plaintiff brings five claims against Dawson. Count I alleges that
Dawson illegally entered the curtilage of plaintiff’s home. Count II alleges
that the PBT was an illegal search. Count III and V allege that plaintiff’s
arrest was an illegal seizure. Count IV alleges that Wilson and Clare
County failed to adequately train Dawson and are liable for the resulting
harm to plaintiff.
Dawson asserts that he is entitled to summary judgment on the basis
of a qualified immunity defense. “Qualified immunity shields federal and
state officials from money damages unless a plaintiff pleads facts showing
(1) that the official violated a statutory or constitutional right, and (2) that
the right was ‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald,
457 U.S. 800, 818, (1982)). A right is clearly established if “the contours of
a right are sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Id. at 741 (internal
citations omitted). The Court has discretion to decide which element to
address first. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
A. Fourth Amendment Claims against Defendant Dawson
The Fourth Amendment protects “the right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. CONST. Amend. IV.
1. Count I: Search of Plaintiff’s Curtilage
Dawson approached plaintiff’s mobile home and knocked on the front
doors. Despite hearing movement and speech inside the home, Dawson
failed to receive an answer from any occupant. He then walked around
knocking, and announcing his presence, on multiple windows. Plaintiff
asserts that Dawson illegally entered the curtilage of his home and peered
through his windows.
Curtilage is an area “so intimately tied to the home itself that it should
be placed under the home’s ‘umbrella’ of Fourth Amendment protection.”
United States v. Dunn, 480 U.S. 294, 301 (1987). “When law enforcement
officers who are not armed with a warrant knock on a door, they do no
more than any private citizen might do.” Kentucky v. King, 563 U.S. 452,
469 (2011). The Supreme Court has “recognized that ‘the knocker on the
front door is treated as an invitation or license to attempt an entry, justifying
ingress to the home by solicitors, hawkers and peddlers of all kinds.’”
Florida v. Jardines, 133 S. Ct. 1409, 1415 (2013) (quoting Breard v.
Alexandria, 341 U.S. 622, 626 (1951)). “This implicit license typically
permits the visitor to approach the home by the front path, knock promptly,
wait briefly to be received, and then (absent invitation to linger longer)
leave.” Id. “Complying with the terms of that traditional invitation does not
require fine-grained legal knowledge; it is generally managed without
incident by the Nation’s Girl Scouts and trick-or-treaters.” Id. Police
officers not armed with a warrant may, therefore, approach a home and
knock, because any private citizen might do the same. Id. at 1416 (citing
King, 563 U.S. at 469). See also Turk v. Comerford, 488 F. App’x 933, 947
(6th Cir. 2012) (“A law enforcement officer may enter a home’s curtilage
without a warrant if he has a legitimate law-enforcement objective, and the
intrusion is limited.”). Occupants, however, have “no obligation to open the
door or to speak” to such visitors. King, 469-70.
Dawson’s initial approach and knocks on plaintiff’s front doors are
permissible under the knock and talk exception articulated above. As such,
he was permitted to look through adjacent windows. Nyilas v. Steinaway,
No. 14-cv-13122, 2016 WL 8969353 (E.D. Mich. May, 29, 2016) (citing
Wayne R. LaFave, 1 Search & Seizure § 2.3(c) (5th ed. 2012) (“At least
when the officer only employs his natural senses, the prevailing rule is that
such uses of the senses made from a place where a police officer has a
right to be do not amount to a search in the constitutional sense.”)).
Dawson was also legally permitted to walk around plaintiff’s home to
try and contact someone inside by knocking on and looking in additional
doors and windows. In Hardesty v. Hamburg Tp., 461 F.3d 646 (6th Cir.
2006), “officers observed lights in the house go off as they approached the
front door.” Id. at 649. As a result, officers believed that someone was
inside the house even though no one answered the officers’ knock at the
front door. Id. Officers proceeded to the rear of the house, onto the deck,
and looked through a sliding glass door. Id. The Sixth Circuit ruled that the
officers’ actions were appropriate, stating that “where knocking at the front
door is unsuccessful in spite of indications that someone is in or around the
house, an officer may take reasonable steps to speak with the person
being sought out even where such steps require an intrusion into the
curtilage.” Id. at 654. Dawson likewise walked around plaintiff’s home,
through the curtilage, knocking on windows and doors. His actions were
similarly “directed towards initiating a conversation with the person or
people in the house.” Id.
Dawson’s later activity, however, is more difficult to analyze.
Following the aforementioned knocks to doors and windows, Dawson
returned to his car and activated his emergency lights and sirens. This
failed to elicit a response from plaintiff. Dawson thereafter made several
trips around the home and curtilage, knocking on various doors and
windows. Dawson waited outside plaintiff’s home for roughly an hour and a
half. These actions do not align with the implicit license described by the
Supreme Court. But, “few, if any, cases detail how long the police may
knock on the door. . . .” Nyilas, 2016 WL 8969353, at *5. Another court in
this district, however, “conclude[d] as a matter of law that the social
invitation does not last indefinitely. In most circumstances, if a person does
not receive a response after several minutes of knocking, the person
should assume, absent evidence to the contrary, that the occupants do not
want to interact with them.” Id. Viewed in the light most favorable to
plaintiff, there is no evidence that the occupants’ of plaintiff’s home wanted
to interact with Dawson. At issue, however, is whether plaintiff was
required to interact with Dawson based on his probation terms. Plaintiff’s
probation terms prohibit his possession or consumption of alcoholic
beverages and state that he “is subject to random PBT upon demand at
[his] expense.” Doc. 14-4 at PageID 113). Thus, unlike King, it is unclear
whether plaintiff had no obligation to open the door or speak with Dawson.
It is also unclear whether Dawson’s repeated knocking is a
constitutional violation. The Court, however, finds that Dawson’s conduct
does not violate clearly established law. At the time of the challenged
conduct, the contours of plaintiff’s Fourth Amendment rights were not
sufficiently clear such that every reasonable official would have understood
that entering and exiting a probationer’s curtilage, over a 90 minute period,
to knock on doors and windows in order to administer a PBT pursuant to
their probation terms violated the Fourth Amendment.
2. Count II: PBT Search
A PBT is a search. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S.
602, 616 (1989). “[A] search conducted without a warrant issued upon
probable cause is per se unreasonable. . . subject only to a few specifically
established and well-delineated exceptions.” Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973) (internal citations omitted). One exception “to the
requirements of both a warrant and probable cause is a search that is
conducted pursuant to consent.” Id. Not all consent will suffice. United
States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999). Valid consent is that
which is “unequivocally, specifically, and intelligently given, uncontaminated
by any duress and coercion.” Id. (internal citations omitted). Whether
consent was voluntary “is a question of fact to be determined from the
totality of the circumstances.” Schneckloth, 412 U.S. at 223.
Plaintiff submitted to a PBT, but argues that his consent was invalid
because he merely acquiesced to Dawson’s demand. As such, plaintiff
argues that the search was conducted without a warrant or applicable
exception and violates the Fourth Amendment. Plaintiff’s argument fails.
Dawson did not violate plaintiff’s rights when he demanded a PBT. Plaintiff
was on probation. “[P]robation is ‘rejectable’; that is optional and voluntary.
Imprisonment is not.” People v. Peterson, 62 Mich. App. 258, 271 (1975)
(Danhof, J., dissenting). A probationer is given a choice, and has
consented to probation terms in return for more lenient treatment. Id. As
such, “a waiver of one’s constitutional protections against unreasonable
searches and seizures may properly be made a condition of a probation
order where the waiver is reasonably tailored to a defendant’s
rehabilitation.” People v. Hellenthal, 186 Mich. App. 484, 486 (1990).
Plaintiff was on probation for assault. The probation term prohibiting
plaintiff from possessing or consuming alcohol, and subjecting him to
random PBT upon demand, is reasonably related to his prior criminal
conduct and is aimed at deterring similar offenses. The Court, therefore,
finds that it is reasonably tailored to plaintiff’s rehabilitation. Accordingly,
there is “no constitutional barrier to the inclusion of a waiver, such as the
one objected to in this case, as one of the conditions in an order of
probation.” People v. Richards, 76 Mich. App. 695, 699 (1977). As such,
Dawson’s demand that plaintiff submit to a PBT, pursuant to his probation
term, does not make plaintiff’s consent, via submission, contaminated or
coerced. Plaintiff, therefore, has not shown a genuine issue of material fact
concerning his allegation that the PBT violated his Fourth Amendment
3. Counts III and V: Plaintiff’s Arrest
“Probable cause to justify an arrest means facts and circumstances
within the officer’s knowledge that are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to
commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).
Plaintiff argues that Dawson’s mere belief that plaintiff was aware of
the officer’s presence, and intentionally avoiding the PBT, does not
constitute probable cause. Plaintiff focuses on the objective analysis,
arguing that Dawson’s subjective belief is insufficient. Moreover, plaintiff
asserts that there could not be probable cause because his PBT results
indicated that he did not have alcohol in his system, Dawson had no proof
plaintiff was ill and slept through the earlier knocks, and a magistrate later
dismissed the alleged probation violation.
Dawson argues that he had probable cause because, in these
circumstances, an officer of reasonable caution would believe plaintiff had
violated his probation terms. Dawson asserts that he heard people moving
and speaking inside plaintiff’s home. Dawson’s interaction with Wright
purportedly led him to believe that plaintiff wanted to evade Dawson or
dissuade him from conducting the PBT. Finally, Dawson was aware of the
time sensitive nature of a PBT; stating that plaintiff may have had alcohol in
his system when Dawson arrived and wanted to delay the PBT until it had
passed out of his system. Dawson felt that waiting an hour and a half went
beyond what was reasonably meant by the “on demand” probation term.
Dawson, therefore, believed that he had probable cause to arrest plaintiff
for violating his probation term.
Whether or not Dawson had probable cause, given the facts of the
case, it is not obvious that a reasonable official would have understood that
probable cause to arrest was lacking. The Court, therefore, finds that
qualified immunity applies to Counts III and V.
B. Claims Against the Supervising Defendants
Plaintiff argues that Dawson’s constitutional violations and
indifference to Fourth Amendment training policies create municipal liability
against “supervisory defendants” Clare County and Sheriff Wilson. A
municipality may be liable under 42 U.S.C. § 1983 for constitutional
violations resulting from failure to train employees where that failure
“reflects deliberate indifference to the constitutional rights of its inhabitants.”
City of Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989). “[D]eliberate
indifference is a stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his action.” Bd. Of
Cnty. Comm’n of Bryan Cnty., Okla. V. Brown, 520 U.S. 397, 410 (1997).
Such deliberate indifference may be found “when city policymakers are on
actual or constructive notice that a particular omission in their training
program causes city employees to violate citizens’ constitutional rights” and
the policy makers nonetheless choose to retain that program. Connick v.
Thompson, 563 U.S. 51, 66 (2011).
The Court ruled that Dawson did not violate the Fourth Amendment
as alleged in Count II, so municipal liability cannot be found for those acts.
In contrast, the Court reserved ruling on the constitutionality of Dawson’s
actions in Counts I, III, and V and applied qualified immunity because,
under these facts, plaintiff’s right to be free from arrest was not clearly
established. The Court, therefore, cannot find that Clare County was on
actual or constructive notice that their training program caused employees
to violate the Fourth Amendment. As such, there is no municipal liability for
Counts I, III, and V.
For the reasons stated above, defendants’ motion is GRANTED.
IT IS SO ORDERED.
Dated: September 7, 2017
S/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon
attorneys of record on
September 7, 2017, by electronic and/or
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