Pierre v. Neudigate

101 F. App'x 50
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 3, 2004
DocketNo. 02-4424
StatusPublished

This text of 101 F. App'x 50 (Pierre v. Neudigate) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pierre v. Neudigate, 101 F. App'x 50 (6th Cir. 2004).

Opinions

KENNEDY, Judge.

Plaintiffs Dennis and Kenya Pierre challenge the district court’s order granting summary judgment to Defendants Cincinnati Police Officers Paul Neudigate, Ken Baker and Jeffrey L. Ray in this § 1983 action based on the search of Plaintiffs’ apartment. Because we find that Defendants acted reasonably under the circumstances, we AFFIRM.

BACKGROUND

The facts of this case are not in dispute. Plaintiffs rented apartment unit # 3 at 29 Mulberry Street in Cincinnati, Ohio from Miles Nixon. Plaintiffs’ apartment occupied a portion of the second and the third floors of the building. The building, additionally, contained three other apartment units. These other units were occupied by Mr. Loomis (next door to Plaintiffs) and Samuel Higgins who owned the two units downstairs on the ground level and at the basement level.

During October 1999. Defendants Ray and Baker received information from a confidential informant (“Cl”) that Shannon Higgins (“Higgins”) had acquired a large amount of powder cocaine and crack cocaine from New York City. The Cl informed Defendants Ray and Baker that he had personally traveled with Higgins to and from New York City to acquire the cocaine. Higgins, according to the Cl. hid the cocaine at 29 Mulberry Street, in his second floor bedroom which he supposedly kept locked. The Cl also indicated that 29 Mulberry Street was a single family residence owned by Higgins’ father, Samuel Higgins. Defendants Ray and Baker had used information provided by this Cl on at least five prior occasions and the information provided was reliable.

Defendants Ray and Baker conducted surveillance on 29 Mulberry Street somewhere between five and ten times during the month of October, 1999. During these surveillance sessions, they observed Higgins’ vehicle parked at 29 Mulberry Street several times. The Cl was present with Defendants Ray and Baker during several of these surveillance sessions.

Defendant Ray accessed the internet site of the Hamilton County Auditor’s of[52]*52fice to verify that 29 Mulberry Street was indeed a single family residence as the Cl had indicated.1 When Defendant Ray accessed the website and typed in “Higgins S.” displayed on the website was the name “Samuel Higgins at 29 Mulberry Street.” “Samuel Higgins at 29 Mulberry Street” was hyperlinked and Defendant Ray clicked on the link. Defendant Ray asserts, without any contradiction from Plaintiffs, that the page returned indicated that Samuel N. Higgins was the owner of 29 Mulberry Street. On October 27, 1999. Defendant Ray obtained a search warrant for 29 Mulberry Street. At the time he obtained the search warrant. Defendant Ray and other officers involved believed that 29 Mulberry Street was a single residence dwelling. Plaintiffs argue that it is evident that 29 Mulberry Street is a multidwelling residence. There is a door of the residence that fronts Mulberry Street, which leads into Higgins’ apartment, and a door on the side that leads to the Plaintiffs’ and Loomis’ apartments on the second floor of the building. Defendants asserted, and Plaintiffs did not counter, that one cannot see the side door when looking at the dwelling from the front.

All officers serving the search warrant on 29 Mulberry Street entered the Higgins residence through the front door. After entering through the front door, the officers announced that it was the police and that they had a search warrant. Immediately thereafter, the officers conducted a protective sweep. During the protective sweep, Defendant Baker found no one on the street level and proceeded downstairs. While in the basement, Defendant Baker opened the first door he came to. This door led to the second floor and Plaintiffs’ and Loomis’ apartments. Although there was a wreath and a welcome mat at the door of Plaintiffs’ apartment, neither the Plaintiffs’ door nor Loomis’ door was numbered. At this point, Defendant Baker yelled “police, search warrant” several times, tried to open the door, but found it to be locked. Undeterred, he kicked in the door. Two other police officers who were following Defendant Baker then entered Plaintiffs’ apartment and began to conduct a protective sweep. Defendant Baker moved on so that he could enter the next door in the hallway.

Once Defendant Baker had entered through the next door, he realized that he was in a separate living quarter. He spoke with the resident of this apartment, Loomis. Defendant Neudigate was also present in Loomis’ apartment to conduct the search. Once they realized that 29 Mulberry Street was not a single-family dwelling as they had originally thought, but rather a multi-family dwelling, Defendants Baker and Neudigate exited Loomis’ apartment and entered Plaintiffs’ apartment.

While Defendants Baker and Neudigate were still in Loomis’ apartment, the other police officers had, with guns drawn, found -Plaintiffs, handcuffed them, and sat them on a couch in Plaintiffs’ second floor living area. Plaintiffs, immediately upon the entrance of the police officers, verbalized to the officers that they had the wrong people. Those same police officers also searched the couch Plaintiffs were sitting on to ensure that they did not have access to any weapons. The police officers did not search any part of Plaintiffs’ apartment other than the couch.

Defendant Neudigate entered Plaintiffs’ apartment shortly after the officers had [53]*53sat Plaintiffs on the couch. Defendant Neudigate immediately told the officers to uncuff them. By that point. Plaintiffs had been handcuffed for approximately fifteen to twenty minutes. The officers apologized for the mistake and asked Plaintiffs questions in an attempt to determine how the mistake was made. The officers attempted to explain how they came to believe that the house was a single family residence. Plaintiffs were not physically injured during the incident but did, understandably, suffer some emotional distress. The only damage that occurred to Plaintiffs’ apartment was to the door.

Plaintiffs filed suit on October 2, 2001, claiming a violation of their rights under the Fourth and Fourteenth Amendments. Specifically, Plaintiffs claim that their rights were violated by the search of their apartment in violation of 42 U.S.C. § 1983. On August 15, 2002, Defendants filed their motion for summary judgment. On November, 5, 2002, the district court granted this motion. The current appeal followed.

STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo. Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir.1996). In deciding a summary judgment motion, this court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We must, however, view the evidence and draw all “justifiable inferences” in the light most favorable to the non-movant. Id. Summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he mere existence of some

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101 F. App'x 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierre-v-neudigate-ca6-2004.