CA6: Summary judgment for Sheriff on a civil Franks claim is reversed because there’s an issue for a jury

Summary judgment for the Sheriff on a civil Franks claim that he could smell marijuana from a really long way away is reversed. Other officers couldn’t smell it until they were right upon it, and he professed in the past to being able to smell marijuana from a half mile away. Blevins v. Kirk, 2019 U.S. App. LEXIS 15290 (6th Cir. May 22, 2019) (not online yet):

Even with Dr. Woodford’s opinion stricken from the record, other testimony undermines the veracity of Sheriff Kirk’s claim. First, Mollett testified that he “ha[d] stood up there [on the road] … [and] didn’t smell any marijuana up there.” Second, Blevins testified that, although she could smell marijuana on the property, this was only “[t]o an extent” and “not [on] the whole piece of property.” Third, Deputy Witten testified that he did not smell the marijuana until he opened his car door within about ten feet of the trailer containing the marijuana. In our view, the testimony of Mollett, Blevins, and Deputy Witten is sufficient to create a genuine issue of material fact as to whether Sheriff Kirk actually smelled the marijuana.

Still, this court’s precedents require more than evidence that an officer’s statement was factually inaccurate; a plaintiff must make a “substantial showing” that an officer’s false statement was made “knowingly or in reckless disregard for the truth.” Vakilian, 335 F.3d at 517. But Sheriff Kirk has never suggested he might have made an innocent mistake. Instead, he has sought to substantiate his olfactory powers by testifying at his deposition that he once smelled unburnt marijuana from half a mile—i.e., 2,640 feet—away. Needless to say, this sort of assertion impugns rather than substantiates the sheriff’s credibility. Sheriff Kirk also admitted during his deposition that, while he was campaigning for sheriff, several people asked whether he was going to “do anything” about Mollett. The record thus suggests a motive—making good on his constituents’ requests—for Sheriff Kirk to lie about smelling unburnt marijuana while driving past Mollett’s home. Cf. Williams v. City of Alexander, 772 F.3d 1307, 1311 (8th Cir. 2014) (affirming the district court’s denial of qualified immunity where the officer who included false information in an affidavit was “at odds with” the plaintiff). In sum, there is sufficient evidence in the record for a reasonable jury to find that Sheriff Kirk stated a deliberate falsehood to secure a warrant to search Mollett’s property. Accordingly, we reverse the district court’s grant of summary judgment as to Sheriff Kirk.