Bowling Ex Rel. Nadvornik v. City of Westland

603 F. Supp. 778, 1985 U.S. Dist. LEXIS 23333
CourtDistrict Court, E.D. Michigan
DecidedJanuary 17, 1985
DocketCiv. 82-72801
StatusPublished

This text of 603 F. Supp. 778 (Bowling Ex Rel. Nadvornik v. City of Westland) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowling Ex Rel. Nadvornik v. City of Westland, 603 F. Supp. 778, 1985 U.S. Dist. LEXIS 23333 (E.D. Mich. 1985).

Opinion

*780 AMENDED MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

COHN, District Judge.

This is a police misconduct case. The parties and the claims are described in the order of July 13, 1984. 1 The underlying facts are essentially uncontested and are described on pages 3 and 4 of the joint pretrial statement approved April 3, 1984. 2 Plaintiffs now move for partial summary judgment on their claim that the search of their home and the subsequent seizure of *781 their property on July 81, 1982 was done under an invalid search warrant. Plaintiffs specifically say that 1) there was no affidavit supporting the search warrant and 2) assuming that the search warrant was itself an affidavit, it did not show probable cause. Plaintiffs further say that defendants’ seizure of their property was not made in good faith.

In response, defendants argue that plaintiffs’ claim as to the absence of an affidavit and lack of probable cause are precluded because they are beyond the scope of the joint pretrial statement. Defendants also argue that the warrant does show probable cause and that the seizure was made in good faith.

Plaintiffs, for the reasons which follow, are correct with regard to the invalidity of the search warrant.

I.

Fed.R.Civ.P. 16(e) provides that the pretrial order (read joint pretrial statement) “shall control the subsequent course of the action unless modified by a subsequent order”. Defendants argue that in moving for summary judgment on the grounds that there was no affidavit and that the warrant was issued without probable cause, plaintiffs make claims beyond the scope of the joint pretrial statement. In the joint pretrial statement, plaintiffs state that their claim arises from the “individually named defendants improperly executing an invalid search warrant”. Under the heading “Legal Issues” the statement goes on to list

“a. May William Meade by regarded as a reliable informant;
b. Was the search warrant used to search Plaintiffs’ home invalid because it was an unconstitutional general warrant.”

Although the precise issues raised here are not stated in the same words in the joint pretrial statement, certainly the lack of an affidavit and issuance of the warrant without probable cause are claims which go to the validity of the search warrant, an issue that was raised in the statement. The cases cited by defendants do not support their argument that the court should not consider these issues. These cases involve situations where a party is raising entire claims not mentioned in the pretrial order after verdicts had already been rendered. See, e.g., McKinney v. Galvin, 701 F.2d 584 (6th Cir.1983); Union Planters National Bank v. Commercial Credit, 651 F.2d 1174 (6th Cir.1981).

“Courts have held that the (pretrial) order should be construed liberally so that it covers any of the possible legal or factual theories that might be embraced by its language”. 6 Wright & Miller, Federal Practice and Procedure, § 1527. Considering that the claims raised by the motion are generally stated in the joint pretrial statement, there is no reason to adopt defendants’ rather technical reading.

II.

As to plaintiffs’ claim that the search warrant was invalid because it was not supported by an affidavit, defendants say that since the search warrant contained the signatures of both the issuing judge and the affiant, William Andrew Meade, the affidavit was contained within the warrant and there was no need for Meade to sign a separate statement under oath.

The Fourth Amendment provides in part:

“No warrants shall issue; but upon probable cause, supported by oath or affirmation.”

*782 See Mich.Stats.Ann. § 28.1259(1) [M.C.L.A. § 780.651]. In determining whether there is probable cause to issue a search warrant, the magistrate can consider only the information contained in the affidavit made before him. Mich.Stats.Ann. § 28.1259(3) [M.C.L.A. § 780.653]; Aguilar v. Texas, 378 U.S. 108, 112, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964); People v. Coleman, 100 Mich.App. 587, 300 N.W.2d 329 (1980). The purposes of the affidavit requirement have been described as a

“guarantee that the finding of probable cause will be based only on material allegations which are true ... to ensure that the magistrate may judge for himself the persuasiveness of the precise facts relied on to show probable cause, and ... to provide a record upon which the reviewing court may properly determine the sufficiency of the facts presented to the magistrate to establish probable cause and whether these facts were given under oath.”

Ringel, Searches & Seizures, Arrests and Confessions, §§ 5.4-5.4(a).

The Court has found no cases directly on point, i.e., where the warrant is also claimed to serve as the affidavit. However, in view of the purposes underlying the requirement of the affidavit to satisfy minimum institutional requirements, it does not appear necessary to require a separate document, so long as the facts giving rise to probable cause are set out somewhere. In addition, the search warrant itself, in lieu of stating the grounds for probable cause, may instead incorporate by reference or have attached a copy of the affidavit. See Massachusetts v. Sheppard, — U.S. —, —, 104 S.Ct. 3424, 3428, 82 L.Ed.2d 737 (1984); Mich. Stats .Ann. § 28.1259(4) [M.C.L.A. § 780.-654]; Ringel, supra, at § 5.4(c) (“[t]he fact that the information relied on to establish probable cause is not in the form of an affidavit will not always defeat the warrant, as long as the information is sworn to under the oath or affirmation requirement”). Affidavits, normally drafted in haste by non-lawyers, are not held to rigid technical requirements “once exalted under common law pleadings”. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983). Therefore, the issue is not whether the search warrant was supported by a piece of paper marked “affidavit” but rather, whether the facts presented in the search warrant are sufficient to establish probable cause.

III.

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Related

Marron v. United States
275 U.S. 192 (Supreme Court, 1927)
Brinegar v. United States
338 U.S. 160 (Supreme Court, 1949)
Aguilar v. Texas
378 U.S. 108 (Supreme Court, 1964)
United States v. Ventresca
380 U.S. 102 (Supreme Court, 1965)
Pierson v. Ray
386 U.S. 547 (Supreme Court, 1967)
Spinelli v. United States
393 U.S. 410 (Supreme Court, 1969)
Brown v. Illinois
422 U.S. 590 (Supreme Court, 1975)
Butz v. Economou
438 U.S. 478 (Supreme Court, 1978)
Harlow v. Fitzgerald
457 U.S. 800 (Supreme Court, 1982)
Illinois v. Gates
462 U.S. 213 (Supreme Court, 1983)
United States v. Leon
468 U.S. 897 (Supreme Court, 1984)
Massachusetts v. Sheppard
468 U.S. 981 (Supreme Court, 1984)
William Butler Smith v. Leman Hudson
600 F.2d 60 (Sixth Circuit, 1979)
James R. Briggs and Louisa Briggs v. Edward Malley
748 F.2d 715 (First Circuit, 1984)
United States v. Townsend
394 F. Supp. 736 (E.D. Michigan, 1975)
People v. Coleman
300 N.W.2d 329 (Michigan Court of Appeals, 1980)

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Bluebook (online)
603 F. Supp. 778, 1985 U.S. Dist. LEXIS 23333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowling-ex-rel-nadvornik-v-city-of-westland-mied-1985.