In another case dealing with a police raid on the wrong house (compare Closure v. Onondaga County, 2007 U.S. Dist. LEXIS 8947 (N.D. N.Y. February 7, 2007) in 2/11 post (no claim)), the Middle District of Tennessee holds that officers were liable and had no qualified immunity. Guiler v. City of Clarksville, 2007 U.S. Dist. LEXIS 9616 (M.D. Tenn. February 9, 2007):
Based on his own assumptions and those of Norfleet, Wiroll and McClintock, Robbins drafted a search warrant and affidavit that incorrectly described the premises intended to be searched and failed to inform the judge that there were white buildings in close proximity, one of which Robbins knew was marked 343-A, and one of which might match the informant’s information. The state judge was unaware of the informant’s description, and he was further unaware that a reasonable officer investigating the scene would have known that a white residence behind 343-A, marked as 343-B, was visible from Old Trenton Road. Viewing Robbins’ affidavit in support of the search warrant in light of the misinformation given to the judge, and the failure to give the judge other relevant information that was material to the issue of probable cause, the Court must conclude that the judge likely would not have issued the warrant for the residence described in the application for lack of probable cause. See Hale v. Kart, 396 F.3d 721, 726 (6th Cir. 2005); Vakilian, 335 F.3d at 517; Neudigate, 101 Fed. Appx. at 53. Thus, a reasonable jury could find on this record that Robbins acted at least with reckless disregard of the truth when he presented his search warrant application to the judge.
Officers Wiroll and McClintock participated in gathering information on which Robbins relied in obtaining the search warrant. They failed to present to Robbins other relevant information about neighboring structures which they observed and which also should have been presented to the judge. As such, reasonable jurors could find that they also acted in reckless disregard of the truth. Each of these officers had a duty, under the facts presented, to discover the existence of 343-B and disclose it to the judge. See Garrison, 480 U.S. at 85.
Sgt. Clinard was Robbins’ direct supervisor. See Estate of Carter v. City of Detroit, 408 F.3d 305, 314 (6th Cir. 2005); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)(noting supervisory liability attaches when supervisor encourages, condones or participates in constitutional violation). Although there is some dispute as to when Sgt. Clinard reviewed the search warrant application and what the application said at the time he reviewed it, there is no dispute that Clinard knew the substance of the informant’s information; therefore, he knew that Taylor lived in a white house. Yet Clinard approved the search warrant application describing a tan residence with maroon shutters and a maroon-shingled roof. He did so even though he knew of concern that the house marked “B” might not be the correct house and even after he directed Robbins to send other officers, Wiroll and McClintock, to the location to double-check. He did so knowing that Robbins had done the bare minimum to corroborate the informant’s allegations about drug possession. Plaintiffs present evidence to support their contention that Clinard allowed Robbins to violate Police Department General Order E-5 XIV(3) by not requiring file documentation and corroboration of the informant and by not asking the District Attorney’s Office to review the search warrant application. In light of these facts, taken most favorably to Plaintiffs, Clinard violated his duty to supervise Robbins to be sure that Robbins discovered and disclosed accurate facts to the judge. See id.
. . .
Thus, Officers Robbins, Clinard, Wiroll, and McClintock violated Plaintiffs’ clearly established Fourth Amendment rights to be free from an unreasonable search and seizure. See Knott, 418 F.3d at 571 (holding defendants not entitled to qualified immunity because “the constitutional infirmity of the search warrant executed by the Defendants was clearly established at the time they searched”; “The Fourth Amendment obviously forbids relying on a warrant to search one [residence] when all of the [residence]-specific descriptors refer to another [residence][.]”) Viewing this case from Plaintiffs’ perspective, these officers were “plainly incompetent,” see Hunter v. Bryant, 502 U.S. 224, 229 (1991), and they are not entitled to qualified immunity for their conduct in obtaining information in support of the search warrant application.
Plaintiff was seized by being told to get in the police car and being driven to the stationhouse, although she was later released. Finigan v. Marshall, 2007 U.S. Dist. LEXIS 9507 (N.D. N.Y. February 9, 2007).* Comment: This was hardly a debatable question, but the defendants raised it.
Officers had a reasonable belief that the defendant was staying where they entered with an arrest warrant. United States v. Perez-Jacome, 2007 U.S. Dist. LEXIS 9697 (D. Kan. February 9, 2007):
Officers need only an objectively reasonable belief that an arrestee lived at the residence. See Gay, 240 F.3d at 1226; Valdez, 172 F.3d at 1225. In addition, the arrestee need not live at the residence, so long as he “possesses common authority over, or some other significant relationship to, the residence entered by police.” Gay, 240 F.3d at 1226 (quoting Valdez, 172 F.3d at 1225). Officers are well aware that people do not live in “individual, separate, hermetically sealed residences,” but live with other people and often move from one residence to another. Id. (quoting Valdez, 172 F.3d at 1225).
Here, officers had a reasonable belief that Moreira lived in the residence at 1814 Bunker: (1) a confidential informant told officers that he had seen Moreira at the residence on three occasions including the previous day, April 28, 2006 and (2) shortly after officers received the tip, they saw defendant and Moreira pull up to the residence in a maroon van and go inside the residence. Officers reasonably relied on the confidential source’s tip because (1) some 11 days earlier, the same informant participated in a controlled purchase arranged by Moreira at a nearby auto parts store; (2) Moreira’s cousin delivered the narcotics for the controlled purchase and returned to 1814 Bunker Avenue where he entered the residence; (3) officers observed defendant and Moreira pull up in a maroon van at the residence and go inside the residence at 5:00 p.m. on April 29, 2006; (4) the telephone call on April 29, 2006 between the informant and Moreira suggested that Moreira had sold narcotics to the informant on prior occasions; and (5) the meeting between the informant and Moreira on April 29, 2006 confirmed that Moreira was at the residence.
Exigent circumstances did not justify entry 30 minutes after a shooting incident. The plaintiff had already prevailed in suppression of the entry in a criminal case where the only evidence produced was an illegal weapon. Ratliff v. City of Three Rivers, 2007 U.S. Dist. LEXIS 9415 (W.D. Mich. February 9, 2007):
Here, however, the Defendants have not demonstrated that the combination of all of the factors was sufficient to justify a warrantless search based on a danger to the police or others. There had not been any indication that exigent circumstances existed in the Plaintiff’s residence, as no shots were fired from within, no 911 calls were made from within, and there was no report by neighbors or witnesses of suspicious or illegal activity within the house or on the premises. In the instant case, the Plaintiff’s right to be free from illegal seizures was not outweighed by the government’s interest in searching the house for armed robbery suspects where the only evidence of the crime located at the residence was a car identified as that used in the robbery and there was no evidence that there was a risk of danger at the residence. Therefore, the Court concludes that the Defendants violated the Plaintiff’s Fourth Amendment right against unlawful searches.
Administrative inspection for sump pumps connected to the city sewer system that had to be conducted by the city implicated the Fourth Amendment. Plisner v. Sweeney, 2007 U.S. Dist. LEXIS 9646 (D. Minn. February 9, 2007) (distinguishing Yanke v. City of Delano, 171 Fed. Appx. 532 (8th Cir. 2006) (per curiam) (unpublished) where inspections could be done by licensed plumbers as an alternative).*
