Shamaeizadeh v. Cunigan

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 22, 2003
• Docket: 01-6326
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Shamaeizadeh v. Cunigan et al. No. 01-6326 ELECTRONIC CITATION: 2003 FED App. 0238P (6th Cir.) File Name: 03a0238p.06

BARKER & MALONEY, Lexington, Kentucky, for UNITED STATES COURT OF APPEALS Appellees. ON BRIEF: David R. Marshall, Lexington, Kentucky, for Appellant. Bryan H. Beauman, Douglas L. FOR THE SIXTH CIRCUIT McSwain, STURGILL, TURNER, BARKER & MALONEY, _________________ Lexington, Kentucky, for Appellees. _________________ ALI SHAMAEIZADEH, X OPINION Plaintiff-Appellant, - _________________ - - No. 01-6326 KAREN NELSON MOORE, Circuit Judge. Plaintiff- v. - Appellant Dr. Ali Shamaeizadeh (“Shamaeizadeh”) appeals > the district court’s grant of summary judgment for , JOEL CUNIGAN et al., - Defendants-Appellees with respect to Shamaeizadeh’s § 1983 Defendants-Appellees. N claims and his state law malicious prosecution claim. On March 14, 1994, the Richmond Police Department received a call reporting the burglary of Shamaeizadeh’s residence Appeal from the United States District Court (“the residence”). An officer responded to the call and for the Eastern District of Kentucky at Lexington. searched the residence for the burglar. The officer then called No. 97-00121—Karl S. Forester, Chief District Judge. for assistance and conducted a second search with one of his supervisors. After discovering evidence of drug paraphernalia Argued: April 30, 2003 during the second search, the two officers called narcotics experts to the scene to participate in a third search. Based on Decided and Filed: July 22, 2003 the evidence discovered, the officers secured and executed two search warrants for the residence. Shamaeizadeh was Before: MOORE and ROGERS, Circuit Judges; KATZ, indicted for federal drug violations, but the charges were District Judge.* dismissed after the district court suppressed the evidence seized from the basement of the residence. _________________ Shamaeizadeh filed a § 1983 action including federal COUNSEL claims and a state law malicious prosecution claim against the City of Richmond, Kentucky, the Richmond Police ARGUED: David R. Marshall, Lexington, Kentucky, for Department, and five individual officers (“the officers”) in Appellant. Bryan H. Beauman, STURGILL, TURNER, their individual and official capacities. Shamaeizadeh argues that he is entitled to damages for the following reasons: * (1) the second and third warrantless searches were The Honorable David A. Katz, United States District Judge for the unconstitutional; (2) there was no probable cause for either Northern District of Ohio, sitting by designation.

1 No. 01-6326 Shamaeizadeh v. Cunigan et al. 3 4 Shamaeizadeh v. Cunigan et al. No. 01-6326

search warrant; (3) the officers exceeded the scope of the first Schmitt asked Wiles to search the residence with her, and search warrant; (4) the officers included misrepresentations in he proceeded to walk through the main floor of the residence. the affidavit supporting the second warrant; (5) the officers Wiles discovered a locked door, but did not attempt to open arrested him without probable cause; (6) he was maliciously it because Schmitt said that it was Shamaeizadeh’s room and prosecuted; and (7) the City of Richmond failed properly to that Shamaeizadeh kept it locked when he was away. Wiles train and supervise its police officers. The district court also discovered a broken door, which led to the basement. He granted summary judgment to the defendants on all grounds. did not examine the broken door because Schmitt said she had kicked it open to use the telephone a few days earlier. Wiles We REVERSE the district court’s grant of summary later said that during this search he detected the odor of judgment with respect to the second and third warrantless growing marijuana. searches, and with respect to Shamaeizadeh’s claim that the officers exceeded the scope of the first search warrant. We After searching the main floor of the house, Wiles moved AFFIRM the district court on all other grounds. onto a deck overlooking the backyard and searched the rear of the premises. Meanwhile, Schmitt entered the basement I. FACTS AND PROCEDURE through the broken door, walked out through the back door of the basement apartment, and met Wiles in the backyard. Shamaeizadeh owned a one-story house with a basement, Explaining that the occupants of the basement apartment were located at 121 Millstone Drive, Richmond, Kentucky. He away on spring break, she asked Wiles to check the basement. occupied the main floor of the residence with his fiancee, Wiles proceeded to search the basement. Theresa Schmitt (“Schmitt”), and rented the basement to Brian Reed (“Reed”) and Joe Ford (“Ford”). All four During his search, Wiles noticed that the basement residents of the house regarded the basement as a separate contained several rooms. Many of the doors were locked, and apartment. Wiles did not attempt to open them. He did smell what he thought was growing marijuana. After walking through the On March 14, 1994, Schmitt placed an emergency call to basement, Wiles called Assistant Chief of Police Wayne the Richmond Police Department, reporting a possible Grant (“Grant”) because he believed he needed the assistance burglary of the residence. Officer Mark Wiles (“Wiles”) was of a supervisor. dispatched and arrived five minutes later. Schmitt met Wiles at the front door, invited him into the residence, and walked Wiles and Schmitt returned to the kitchen and waited for into the kitchen. She told Wiles that she had left the back Grant to arrive.1 Schmitt never asked Wiles to leave. While door open for her cats, and then had passed out on the kitchen they were waiting, Schmitt told Wiles that she believed the table after taking muscle relaxants and consuming a beer. “government” was the burglar. Wiles was thus inclined to When Schmitt awoke, she noticed that her room key was discredit Schmitt’s allegations of burglary. When Grant missing from her pocket. She went into another room and, while she was there, someone allegedly reentered the house and broke the glass top of the kitchen table. Wiles observed 1 broken glass on the kitchen floor. Shamaeizadeh conceded at oral argumen t that, at some point prior to the second search, Schmitt informed Wiles that she believed that some of the other occupants of the house were growing marijuana. No. 01-6326 Shamaeizadeh v. Cunigan et al. 5 6 Shamaeizadeh v. Cunigan et al. No. 01-6326

arrived, Wiles briefed him about his activity thus far. Schmitt to Schmitt, although she never saw marijuana, the scent was participated in the conversation, informing the officers that so strong that she covered her vents to avoid it, particularly at she would retrieve a key for the locked doors in the basement. nighttime. Wiles and Grant then conducted a second search of the Cunigan called a state prosecutor and submitted a sworn basement apartment. They did not ask Schmitt’s permission affidavit in support of his application for a search warrant. A to conduct the search. When they entered the basement, state court judge issued a warrant for the search and seizure Wiles again smelled what he suspected was marijuana. The of “[a]ny and all illegally possessed controlled substances officers discovered small marijuana cigarette butts, known as including marijuana, both growing and processed, and any “roaches,” in an ashtray. They also found boxes of drug paraphernalia, also any and all illegally possessed fluorescent light bulbs under the apartment stairway and prescription drugs.” Joint Appendix (“J.A.”) at 584 (1st observed fluorescent lighting in one of the locked rooms turn Warrant). on and off intermittently. They suspected that the fluorescent lighting was being used to grow marijuana because it is often At 11:19 p.m., Cunigan returned to the residence with other used for that purpose. Schmitt arrived with a ring of keys, but officers and an agent from the Drug Enforcement Agency to none of them fit the locked doors. execute the search warrant, conducting a fourth search of the residence. The officers forcibly opened locked doors in the Wiles and Grant then called Assistant Chief of Narcotics basement apartment, finding and seizing 393 marijuana plants Bill Jesse (“Jesse”). They related their observations to him and various pieces of growing equipment. In addition to the and requested the assistance of an officer experienced in drugs and drug paraphernalia, the officers indicated that they detecting narcotics. Jesse dispatched Sergeant Joel Cunigan seized “assorted paper records, receipts, bank records, (“Cunigan”) to the scene. Cunigan arrived at 9:20 p.m., insurance records, tax papers, personal ledgers, jewelry.” J.A. approximately the same time that Wiles’s immediate at 585 (1st Warrant) (notes on warrant). supervisor, Sergeant Sam Manley (“Manley”), arrived. Wiles and Grant briefed Cunigan and Manley on the situation. Then On March 15, 1994, Detective John Telek (“Telek”) signed all four officers conducted a third search of the basement an affidavit in support of a second warrant to search the house apartment. They did not explicitly ask Schmitt’s permission and two vehicles found there. According to the warrant, to conduct the third search, but Schmitt participated in the Telek was permitted to search for the following items: walk-through of the basement. 1. Any and all illegally possessed controlled When the officers entered the basement during the third substances to wit: Marijuana and any drug search, Cunigan smelled a strong odor that he believed to be paraphernalia; growing marijuana. The officers discovered a hemostat; 2. Any and all tax records or documents reflecting the rolling papers; a plastic bag of what was suspected to be income and/or sources of income of any of the marijuana, but was actually catnip; and a bag containing a above named persons[;] variety of pills. At this point, they advised Schmitt of her 3. Any documents reflecting the purchase of drug rights. Schmitt stated her belief that Reed and Ford were paraphernalia including the receipts for grow lights, growing marijuana in their basement apartment. According potting soil, fertilizer, plant pots, fans[.] No. 01-6326 Shamaeizadeh v. Cunigan et al. 7 8 Shamaeizadeh v. Cunigan et al. No. 01-6326

J.A. at 589 (2d Warrant). Shamaeizadeh claims that this dismiss the indictment, and the district court granted the search warrant was drafted in an attempt to cover up the motion. illegal seizure of items during the execution of the first warrant. Shamaeizadeh brought a § 1983 action against the City of Richmond, the Richmond Police Department, and five Upon the recommendation of the local Commonwealth individual police officers — Cunigan, Wiles, Manley, Telek, Attorney and a representative of the United States Attorney and Grant — for damages caused by the illegal searches and for the Eastern District of Kentucky, the Richmond Police Shamaeizadeh’s subsequent prosecution. Shamaeizadeh also Department turned over the evidence and prosecution of this claimed that he was maliciously prosecuted in violation of matter to the United States government. Shamaeizadeh, state law. The officers filed a motion to dismiss pursuant to Reed, and Ford were arrested and indicted for federal drug- Federal Rule of Civil Procedure 12(b)(6). law violations under 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. §§ 2 and 924(c)(1). Shamaeizadeh was also charged The district court ruled that Shamaeizadeh’s claims relating with renting the basement apartment for the purpose of to the alleged illegal search, seizure, and Shamaeizadeh’s unlawfully manufacturing, storing, or distributing marijuana subsequent arrest were time barred. The district court also under 21 U.S.C. § 856. None of the officers who searched dismissed Shamaeizadeh’s malicious prosecution claim, Shamaeizadeh’s residence testified before the grand jury. finding that the officers were entitled to qualified immunity. Finally, the district court declined to exercise pendent Shamaeizadeh, Reed, and Ford moved to suppress the jurisdiction over the state law claims, dismissing them. evidence seized pursuant to the first warrant. At the suppression hearing, Cunigan and Wiles, the only officers Shamaeizadeh appealed the district court’s dismissal of his directly involved in Shamaeizadeh’s criminal prosecution, action. The Sixth Circuit reversed, and the Supreme Court testified. The magistrate judge concluded that Wiles’s initial denied certiorari. Shamaeizadeh v. Cunigan, 182 F.3d 391 warrantless search of the residence was constitutional due to (6th Cir.), cert. denied, 528 U.S. 1021 (1999). When the case exigent circumstances, but found the second and third returned to the district court for discovery, the district court warrantless searches unconstitutional. The magistrate judge agreed to exercise pendent jurisdiction over the state law recommended that Cunigan’s affidavit be redacted to reflect claims. only the information obtained as a result of the initial search and through conversations with Schmitt. He then concluded The officers filed a motion for judgment on the pleadings that the redacted affidavit provided probable cause to search or for summary judgment. The district court considered the main floor of the residence for illegal drug activity, but Shamaeizadeh’s “(1) 42 U.S.C. § 1983 claim based upon an not probable cause to support a warrant for the basement. illegal search, seizure and wrongful arrest; (2) 42 U.S.C. The magistrate judge therefore recommended suppressing the § 1983 claim for ‘misrepresentation’ and (3) . . . state law evidence seized from the basement, and the district court malicious prosecution claim.” J.A. at 396 (Op. & Order). adopted this recommendation. The government appealed the The district court entered summary judgment for the district court’s decision to suppress the evidence, and the defendants and dismissed Shamaeizadeh’s claims with Sixth Circuit affirmed. United States v. Shamaeizadeh, 80 prejudice. F.3d 1131 (6th Cir. 1996). The government then moved to No. 01-6326 Shamaeizadeh v. Cunigan et al. 9 10 Shamaeizadeh v. Cunigan et al. No. 01-6326

Shamaeizadeh timely appealed from the district court’s basement and lived in close proximity to it. He does not order entering final judgment in favor of the defendants. maintain, however, that the basement was part of his residence. II. ANALYSIS To assert a Fourth Amendment violation, Shamaeizadeh We review a district court’s order granting summary must show that the government’s action in some way invaded judgment de novo. Rannals v. Diamond Jo Casino, 265 F.3d his own reasonable expectation of privacy. United States v. 442, 447 (6th Cir. 2001), cert. denied, 534 U.S. 1132 (2002). Knotts, 460 U.S. 276, 281 (1983); Rakas v. Illinois, 439 U.S. Summary judgment is appropriate “if the pleadings, 128, 143 (1978). We apply a two-part test to determine depositions, answers to interrogatories, and admissions on whether Shamaeizadeh had a reasonable expectation of file, together with the affidavits, if any, show that there is no privacy, asking (1) whether Shamaeizadeh “manifest[ed] a genuine issue as to any material fact.” Fed. R. Civ. P. 56(c). subjective expectation of privacy in the premises searched”; A dispute over a material fact is not considered “genuine” and (2) whether society is “prepared to recognize that unless a reasonable jury could return a verdict for the expectation as legitimate.” Bonds v. Cox, 20 F.3d 697, 701 nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. (6th Cir. 1994). 242, 248 (1986) (quotation omitted). In deciding whether summary judgment was appropriate, we view all evidence in Assuming that Shamaeizadeh manifested a subjective the light most favorable to the nonmoving party. Matsushita expectation of privacy because he owned the basement and Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 lived in close proximity to it, society is not prepared to (1986). recognize that expectation as legitimate. Although Shamaeizadeh owned the entire residence, ownership alone A. Shamaeizadeh’s Standing to Challenge the Basement does not justify a reasonable expectation of privacy. The Searches Supreme Court has consistently held that privacy interests are not coterminous with one’s property rights. United States v. The district court granted summary judgment to the officers Salvucci, 448 U.S. 83, 91 (1980) (“[W]hile property on Shamaeizadeh’s § 1983 claims that the basement was ownership is clearly a factor to be considered in determining illegally searched, reasoning that Shamaeizadeh did not have whether an individual’s Fourth Amendment rights have been a reasonable expectation of privacy in the basement violated, property rights are neither the beginning nor the end apartment.2 Shamaeizadeh contends that he has standing to of this Court’s inquiry.” (citation omitted)). In deciding challenge the basement searches because he owned the whether someone has a reasonable expectation of privacy for Fourth Amendment purposes, courts consider a number of factors, including 2 In Shamaeizadeh’s federal criminal case, the district court had concluded that Shamaeizadeh did not have any expectation of privacy in the person’s proprietary or possessory interest in the the basement apartment and therefore lacked standing to brin g a motion place to be searched or item to be seized . . . . whether the to suppress evidence seized therein. Shamaeizadeh sough t to app eal this defendant has the right to exclude others from the place determinatio n, but the Sixth Circuit dismissed the appeal for lack of in question; whether he had taken normal precautions to jurisdiction. United States v. Shameizadeh [sic], 41 F.3d 266 , 267 (6th Cir. 1994). maintain his privacy; whether he has exhibited a No. 01-6326 Shamaeizadeh v. Cunigan et al. 11 12 Shamaeizadeh v. Cunigan et al. No. 01-6326

subjective expectation that the area would remain free no precautions to maintain any privacy interest he might have from governmental intrusion; and whether he was had in the basement when he leased the basement to Reed and legitimately on the premises. Ford and permitted them to occupy it as a separate residence. Moreover, Shamaeizadeh did not exhibit “a subjective United States v. King, 227 F.3d 732, 744 (6th Cir. 2000); see expectation that the area would remain free from Hardwig v. United States, 23 F.2d 922, 922 (6th Cir. 1928) governmental intrusion.” King, 227 F.3d at 744. Therefore, (concluding that a lessee who sublets part of a building to a in light of these factors, Shamaeizadeh had no expectation of sublessee personally has “no right to object to evidence of privacy in the basement of the residence; any expectation of what was found or done there”). privacy in the basement belonged solely to the lessees, Ford and Reed. Although Shamaeizadeh had a proprietary interest in the basement of the residence, he has consistently stated that the Because Shamaeizadeh had no reasonable expectation of basement apartment was maintained as a separate residence, privacy in the basement apartment and has no standing to indicating that he was not in possession of the basement. claim a constitutional violation on behalf of either lessee, the When the officers searched the residence, it was evident that district court did not err by granting summary judgment to the the door between the main level and the basement had been defendants insofar as Shamaeizadeh’s claims seek damages forced open. Moreover, Wiles’s testimony at the suppression for the basement searches. Therefore, we will consider hearing indicates that even he recognized that the basement Shamaeizadeh’s other claims only in the context of the “was an apartment” and that, in light of Schmitt’s searches of the main floor of the residence. explanations, “he understood the residence at 121 Millstone to consist of a house with an apartment underneath it.” J.A. B. Qualified Immunity at 37 (Magistrate Judge’s Proposed Findings of Fact and Recommendation) (quotations and brackets omitted).3 According to the doctrine of qualified immunity, Therefore, Reed and Ford had the right to exclude others from “government officials performing discretionary functions the basement, but Shamaeizadeh did not. Shamaeizadeh took generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would 3 The Magistrate Judge’s Proposed Findings of Fact and have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 Recommendation were mad e in the context of a suppression hearing (1982). We undertake a three-step analysis of qualified during the federal prosecution of Shamaeizadeh, Reed, and Ford. immunity claims: Although two state officers testified at the suppression hearing, they were not parties to the federal criminal action. Moreover, although First, we determine whether, based upon the applicable Shamaeizadeh was a defendant in the criminal action, the district judge determined that he lac ked standing to seek the suppression of evidence. law, the facts viewed in the light most favorable to the Because neither the state officials nor Shamaeizadeh were parties to the plaintiffs show that a constitutional violation has suppression hearing, it would ordinarily be inapp ropriate for this court to occurred. Second, we consider whether the violation consider the magistrate judge’s factual findings in this civil action. involved a clearly established constitutional right of However, bec ause both parties rely on the magistrate judge’s findings in which a reasonable person would have known. Third, we their briefs before this co urt and neither p arty contests these findings, we determine whether the plaintiff has offered sufficient may properly consider them. No. 01-6326 Shamaeizadeh v. Cunigan et al. 13 14 Shamaeizadeh v. Cunigan et al. No. 01-6326

evidence to indicate that what the official allegedly did damages for pain, suffering, embarrassment, and humiliation. was objectively unreasonable in light of the clearly Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 established constitutional rights. (1986) (explaining that a § 1983 plaintiff can seek compensatory damages for “impairment of reputation . . ., Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (quotation personal humiliation, and mental anguish and suffering” omitted); see also Williams v. Mehra, 186 F.3d 685, 691 (6th (quotation omitted)). Therefore, we must consider whether Cir. 1999) (en banc). the officers are entitled to summary judgment on this part of Shamaeizadeh’s § 1983 action on alternative grounds. For a right to be clearly established, “[t]he contours of the Because the second and third searches were unconstitutional right must be sufficiently clear that a reasonable official and the officers were not entitled to qualified immunity with would understand that what he is doing violates that right.” respect to this conduct, we reverse the district court’s grant of Anderson v. Creighton, 483 U.S. 635, 640 (1987); see Russo summary judgment on this issue. v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992). In other words, the unlawfulness must be apparent under The officers contend that the second and third searches preexisting law. The unlawfulness of an action may be were constitutional because either (1) Schmitt gave apparent in light of “direct holdings, from specific examples continuing consent for the searches, (2) exigent circumstances described as prohibited, or from the general reasoning that a were present, or (3) the plain view doctrine applied. If any of court employs.” Feathers, 319 F.3d at 848. “[O]fficials can these exceptions to the Fourth Amendment warrant still be on notice that their conduct violates established law requirement apply, the searches were constitutional.4 even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002); see Russo, 953 F.2d at 1042 (“[I]t need not be the case that the very action in question has previously 4 The district court below and the district court during the criminal been held unlawful.” (quotation omitted)). proceedings conc luded that the second and third searches were unco nstitutional. However, Shama eizadeh cannot collaterally estop the 1. The Second and Third Warrantless Searches officers from relitigating this issue because the officers — “the party against whom estopp el is sought” — did no t have “a full and fair Shamaeizadeh argues that the district court erred by opp ortunity to litigate the issue” during the suppression hearing. Detroit Police Officers Ass’n v. Young, 824 F.2d 51 2, 515 (6th Cir. 1987). dismissing his § 1983 claim that the second and third searches Although two defendants in the current action — W iles and Cunigan — of the main floor of the residence were unconstitutional on the testified at the supp ression hearing, neither they nor the other defendants ground that these searches “were of no consequence and at in the pre sent action had an opportunity fully and fairly to litigate the best constitute harmless error.” J.A. at 405 (Op. & Order). issue. Furthermore, the officers, the Richmond Police Department, and The district court did not determine the constitutionality of the City of Richmond are no t in privity with the fede ral gov ernment, which was a p arty to the first action. See United States v. Wh ite, Nos. 91- the searches, instead reasoning that Shamaeizadeh failed to 2005, 91-209 0, 91-2168, 91-2169, 91-2308, 91-2403, 1994 WL 70855, allege an injury for § 1983 purposes because the information at **10 (6th Cir. March 3, 1994) (“[I]t would be a stretch to say that gathered during the second and third searches was purged federal prosecuto rs are in p rivity with an exclusively state prosecution.”), from the affidavit supporting the subsequent search warrants. cert. denied, 513 U.S. 861, 513 U.S. 949 (19 94); cf. Sunshine A nthra cite But Shamaeizadeh did allege an injury with respect to the Coal Co. v. Adkins, 310 U .S. 381, 402 (194 0) (“There is privity between second and third searches: a § 1983 plaintiff can seek officers of the same government.”). The fact that the federal government relied on evidence from state officers in a federal proceeding does not No. 01-6326 Shamaeizadeh v. Cunigan et al. 15 16 Shamaeizadeh v. Cunigan et al. No. 01-6326

a. Consent matter, once consent is granted in Kentucky, it must be expressly revoked. Appellees’ Br. at 23 (citing as support Consent from an individual whose property is to be Smith v. Commonwealth, 246 S.W. 449, 451 (Ky. 1923), searched or from a third party who possesses common which held that consent cannot be revoked once a search has authority over the premises validates a search that would begun). Some states have recognized a principle of otherwise be considered unreasonable and unconstitutional. continuing consent, which allows officers to execute United States v. Matlock, 415 U.S. 164, 171 (1974). subsequent, closely-related searches in the absence of an However, even when a search is authorized by consent, “the objection because the absence of objection permits an scope of the search is limited by the terms of its inference that the initial consent continued. See, e.g., State v. authorization.” Walter v. United States, 447 U.S. 649, 656 Luther, 663 P.2d 1261, 1263 (Or. Ct. App. 1983), aff’d, 672 (1980). The Supreme Court has explained that “the scope of P.2d 691 (Or. 1983); Phillips v. State, 625 P.2d 816, 818 a suspect’s consent under the Fourth Amendment” turns on (Alaska 1980). But even if we were to recognize a principle what “the typical reasonable person [would] have understood of continuing consent that might extend throughout three by the exchange between the officer and the suspect[.]” separate searches closely related in time and purpose, the Florida v. Jimeno, 500 U.S. 248, 251 (1991). As long as an second and third searches exceeded the scope of Schmitt’s officer has an objectively reasonable belief that the search initial consent. was within the course of consent, the search is valid. Id. But the Fourth Amendment “requires that the scope of every The officers could not have had an objectively reasonable authorized search be particularly described.” Walter, 447 belief that the second and third searches were within the U.S. at 657. course of Schmitt’s consent. Schmitt clearly consented to The officers suggest that we should conclude that Schmitt provided continuing consent which authorized all three warrantless searches.5 The police contend that, as a historical entry into the p remise s identified in [a] warrant, as long as the second entry is a reasonable continuation of the original search.” United States v. Keszthelyi, 308 F.3d 557 , 568 (6th C ir. 2002). Although we have not previously applied Keszthelyi in the context of a search justified on bind the officers to the outcome of that proceeding. See United States v. grounds other than a warrant, it is clear that regardless of the source of Perchitti, 955 F.2d 674 , 677 (11th Cir. 1992) (explaining that cooperation authority for a searc h, a search ends when subsequent entries into the between federal and state authorities in the investigation of a defendant identified premises are not reasonable continuations of the original search. does not necessarily establish privity between the federal and state Thus, if the first search was constitutional because Schm itt consented to governments); see also Fe rina v. United States, 340 F.2d 837 , 840 (8th it, the search ended when it exceeded the scope of her consent to the Cir.) (merely using the fruits of federal investigations in state proceedings officer’s search for a possible intruder. Similarly, if the first search was “does not infect the separate sovereignty of that prosecution, nor bind the constitutional because there were exigent circum stances, see infra, that federal government in any manner to the issues so re solved by the state search ended when the officers began to search for drugs rather than a judgment”), cert. denied, 381 U.S. 902 (1965). burglar. See Mincey v. Arizona, 437 U.S. 385 , 393 (1978 ) (explaining 5 that a search justified by exigent circum stances is strictly circumscribed Although they did not press the issue in their brief, the officers also by the emergency that justifies it). The fact that Wiles called in additional suggested at oral argument that all three warrantless searches were officers with drug experience suggests that the searches for drugs and actually components of a single constitutional search. This court has drug paraphernalia were new searche s, rather than reasonable recognized “that a single search warrant may authorize more than one continuations of the constitutional search for a burglar. No. 01-6326 Shamaeizadeh v. Cunigan et al. 17 18 Shamaeizadeh v. Cunigan et al. No. 01-6326

Wiles’s first search of the premises when she asked him to No one contests that Wiles’s initial search of the residence search for an intruder. But the officers do not assert that was conducted in the face of exigent circumstances. Wiles Schmitt explicitly consented to the second or third search. In was dispatched to investigate a possible burglary and believed fact, they admit that they did not expressly request her the burglar might still be present in the residence. The consent when additional officers arrived to search the officers now claim that the second and third searches were residence and that they do not recall Schmitt expressly necessary because the burglar may have been hiding behind articulating any such consent of her own volition. Schmitt’s locked doors. However, at the suppression hearing in the request that Wiles search the residence for a burglar does not federal criminal trial, Wiles testified “that he called for objectively indicate consent for Wiles to call in a supervisor backup not because he suspected that a burglary had occurred and execute a second search or for Wiles and a supervisor to or because he suspected that a burglar may still be present in call in officers with more experience in detecting drugs to the residence, but because when he walked into the execute a third search. Because the second and third searches downstairs portion of the residence he smelled what he exceeded the scope of Schmitt’s consent, they were suspected to be growing marijuana.” J.A. at 50 (Magistrate unconstitutional. Judge’s Proposed Findings of Fact and Recommendation). Moreover, Wiles’s present claim that he sought backup for b. Exigent Circumstances the purpose of looking for a possible intruder is inconsistent with the officers’ decision to search the entire residence again, The officers also maintain that the second and third rather than simply to investigate the locked rooms that Wiles searches were constitutional because they were executed had been unable to enter. Most importantly, the fact that the under exigent circumstances. Warrantless entries are officers called in narcotics experts to conduct the third search permitted under exigent circumstances, which “exist where drastically undercuts the officers’ claim that the possible there are real immediate and serious consequences that would presence of an intruder created exigent circumstances certainly occur were a police officer to postpone action to get justifying a third search. These facts are such that an a warrant.” Ewolski v. City of Brunswick, 287 F.3d 492, 501 objectively reasonable officer could not have reasonably (6th Cir. 2002) (quotations and brackets omitted). As with believed that there were exigent circumstances. the consent exception to the warrant requirement, we measure exigent circumstances by a standard of objective The officers’ suspicion that marijuana was being grown in reasonableness, asking “whether the facts are such that an the residence also failed to create new exigent circumstances objectively reasonable officer confronted with the same justifying a search. During the second and third searches, the circumstances could reasonably believe that exigent officers were not in hot pursuit of a suspect, threatened by a circumstances existed.” Id. Exigent circumstances typically suspect, or attempting to thwart the escape of a known exist in one of three situations: officers are in hot pursuit of criminal. The only arguable exigent circumstance in this a suspect, a suspect represents an immediate threat to officers context was a possible need to prevent the destruction of vital and the public, or “immediate police action [is] necessary to evidence. But the officers cannot argue that they were prevent the destruction of vital evidence or thwart the escape attempting to prevent the destruction of vital evidence of known criminals.” Hancock v. Dodson, 958 F.2d 1367, because they were not even certain of what evidence they 1375 (6th Cir. 1992). were searching for at the time — the second and third searches were fishing expeditions for evidence of a drug No. 01-6326 Shamaeizadeh v. Cunigan et al. 19 20 Shamaeizadeh v. Cunigan et al. No. 01-6326

crime. Thus, new exigencies did not arise to justify the searches; even when viewed in the light most favorable to the second and third searches. officers, the facts indicate that these searches were unconstitutional. Because the exigencies justifying the first search did not continue and because new exigencies did not arise to justify Furthermore, the officers are not entitled to qualified the second and third searches, we cannot conclude that immunity with respect to this aspect of Shamaeizadeh’s exigent circumstances justified the otherwise unconstitutional § 1983 claim because their unconstitutional conduct searches. “involved a clearly established constitutional right of which a reasonable person would have known.” Feathers, 319 F.3d c. Plain View at 848. At the time of the searches, the Supreme Court had clearly stated that the justification for a search determines its Finally, the officers maintain that their warrantless second appropriate scope: and third searches of the residence were justified by the plain view doctrine because drug paraphernalia was in plain view The manner in which the seizure and search were during the second and third searches. To invoke the plain conducted is, of course, as vital a part of the inquiry as view doctrine, evidence must be “(1) in plain view; (2) of a whether they were warranted at all . . . . [E]vidence may character that is immediately incriminating; (3) viewed by an not be introduced if it was discovered by means of a officer lawfully located in a place from where the object can seizure and search which were not reasonably related in be seen; and (4) seized by an officer who has a lawful right of scope to the justification for their initiation. access to the object itself.” United States v. Roark, 36 F.3d 14, 18 (6th Cir. 1994). Although the plain view doctrine Terry v. Ohio, 392 U.S. 1, 28-29 (1968). A reasonable person would likely have justified Wiles’s seizure of immediately would have known that the “scope of [a] search is limited by incriminating drug paraphernalia during the first search, it the terms of its authorization,” Walter, 447 U.S. at 657. clearly cannot justify the second and third searches. For the Moreover, it was clear that “[w]hile exigent circumstances exception to apply, an officer seizing an item in plain view may justify police conduct that would otherwise be must be “lawfully located.” Because the officers were not unreasonable if undertaken without a warrant, such conduct lawfully in the residence during the second and third searches, must be strictly circumscribed by the exigencies which justify the plain view doctrine cannot serve to constitutionalize an its initiation,” Segura v. United States, 468 U.S. 796, 823 otherwise improper search. We therefore conclude that the (1984) (quotation omitted). A reasonable officer therefore officers would violate Shamaeizadeh’s constitutional rights could not have objectively considered the consent or by seizing items in plain view while the officers were exigencies purportedly justifying the warrantless search to unlawfully present in Shamaeizadeh’s residence. have extended beyond Wiles’s initial search of the residence. Finally, because it was also clearly established that the plain Because none of the three asserted exceptions apply, we view exception cannot serve to justify an otherwise conclude that the officers are not entitled to summary unconstitutional search, we must conclude that the officers’ judgment on grounds that the second and third searches were second and third warrantless searches violated a clearly constitutional. In fact, there is no genuine issue of material established constitutional right of which a reasonable person fact about the constitutionality of the second and third would have known. Shamaeizadeh “has offered sufficient No. 01-6326 Shamaeizadeh v. Cunigan et al. 21 22 Shamaeizadeh v. Cunigan et al. No. 01-6326

evidence to indicate that what the official[s] allegedly did was searched, and the persons or things to be seized.” U.S. Const. objectively unreasonable in light of the clearly established amend. IV. An affidavit on which a search warrant is issued constitutional rights.” Feathers, 319 F.3d at 848. need not reflect direct personal observations of the affiant if the hearsay information is derived from a credible source. Therefore, we reverse the district court’s grant of summary United States v. Ventresca, 380 U.S. 102, 108 (1965). When judgment on this issue, and we conclude that the officers are deciding whether to issue a search warrant, a magistrate not entitled to summary judgment on Shamaeizadeh’s § 1983 simply must “make a practical, common-sense decision claims pertaining to the second and third searches either on whether, given all the circumstances set forth in the affidavit the merits or on grounds of qualified immunity. In fact, we before him, including the ‘veracity’ and ‘basis of knowledge’ conclude that the second and third searches were of persons supplying hearsay information, there is a fair unconstitutional. probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 2. Probable Cause for the Warrants 238 (1983). Therefore, we must determine whether Cunigan’s affidavit established a fair probability that evidence Shamaeizadeh argues that the district court erred in of a crime would be found at the residence. concluding that Cunigan’s affidavit provided probable cause for the first warrant to search the main floor. The district Cunigan’s affidavit set forth the following information court concluded that there was sufficient legally acquired about Shamaeizadeh’s suspected drug activity: information in Cunigan’s redacted affidavit to establish probable cause. In doing so, the district court ignored the On the 14th[ ]day of March, 1994, at approximately Sixth Circuit’s observation in dicta during review of the 8:34, the Richmond Police Department received a call earlier criminal proceedings that “[c]uriously, the magistrate [from] Teresa Schmidt [sic] of 121 Millstone Drive, and never recommended redacting Cunigan’s entire statement Ms. Schmidt [sic] reported that there had been a burglary from the affidavit, even though it appears to be the fruit of an at her residence. Officer Mark Wiles responded to the illegal search.” United States v. Shamaeizadeh, 80 F.3d 1131, alleged burglary and upon entering the residence and 1137 n.3 (6th Cir. 1996). Although the Sixth Circuit has beginning the investigation Officer Wiles along with Sgt. previously discussed this issue, a discussion occurring in the Sam Manley and Asst. Chief Wayne Grant observed context of a federal criminal case is not binding on the state numerous items of drug paraphernalia, partially smoked officers who are parties to this civil action. Nevertheless, marijuana cigarettes, plastic bag containing several Shamaeizadeh urges us to adopt the view articulated by the different types of what appeared to be prescription pills Sixth Circuit in the prior criminal appeal and argues that all and plastic bag containing what readily appeared to be evidence in Cunigan’s affidavit was poisonous fruit of the suspected marijuana. At this time I was contacted and I unconstitutional second and third searches, such that the went to the residence where I also observed the same entire affidavit should be rejected. items. While in the residence, I detected a strong odor of The Fourth Amendment provides that “no Warrants shall growing marijuana both upstairs and downstairs. Several issue, but upon probable cause, supported by Oath or of the rooms in the residence were locked and we were affirmation, and particularly describing the place to be unable to look inside them. No. 01-6326 Shamaeizadeh v. Cunigan et al. 23 24 Shamaeizadeh v. Cunigan et al. No. 01-6326

According to Schmidt [sic], some of the other strong fluorescent-light glow under one of the locked doors in occupants of the house are growing marijuana inside the the basement. As the district court noted, Cunigan also was house. entitled to rely on “Schmitt’s statement that some of the other From under the door of one of the locked rooms, I occupants of the house were growing marijuana.” J.A. at 403 could see a strong florescent [sic] light glow. (Op. & Order). Cunigan could also rely on Wiles’s observations of the smell in the basement for the purpose of J.A. at 587 (Cunigan Aff.). We cannot consider some of the establishing probable cause, but we must redact from information included in Cunigan’s affidavit, however, Cunigan’s affidavit any suggestion that Cunigan detected a because “[t]he exclusionary rule prohibits introduction into strong scent of marijuana on the main floor of the residence evidence . . . of testimony concerning knowledge acquired because the second and third searches of the main floor were during an unlawful search.” Murray v. United States, 487 unconstitutional. Upon considering this evidence, we U.S. 533, 536 (1988). conclude that the information remaining in the redacted affidavit did establish a “fair probability that contraband or Although the second and third searches were evidence of a crime” would be found in the basement unconstitutional, the searches of the basement violated only residence. Gates, 462 U.S. at 238. Reed’s and Ford’s constitutional rights. “[A] court may not exclude evidence under the Fourth Amendment unless it finds Similarly, the evidence in Telek’s affidavit that was filed in that an unlawful search or seizure violated the defendant’s support of the second warrant established a “fair probability own constitutional rights,” meaning that the challenged that contraband or evidence of a crime” would be found in the conduct invaded the defendant’s expectation of privacy. basement residence. Gates, 462 U.S. at 238. Telek’s United States v. Payner, 447 U.S. 727, 731 (1980) (citing affidavit was identical to Cunigan’s, with the exception of one Rakas, 439 U.S. at 138). In this context, the evidence seized additional paragraph that explained, from the basement during the second and third searches of the basement did not invade Shamaeizadeh’s expectation of Based on the forgoing [sic] information a Search Warrant privacy. Therefore, in determining whether probable cause was secured for the premises and over 390 marijuana was present for issuance of the first search warrant, we need plants were recovered from the residence. According to not redact Cunigan’s affidavit to exclude all evidence that was the Chief of Police, also found during the search, was a seized during the second and third searches in violation of receipt reflecting that Ali [Shamaeizadeh] purchased someone’s constitutional rights. Rather, we exclude from the some lights and a blower. From my experience, these affidavit only evidence gathered from the main floor of the types of items would commonly be used in the type of house in violation of Shamaeizadeh’s constitutional rights. growing operation as was discovered here on Millstone Drive. Most of the statements in Cunigan’s affidavit rely on evidence seized from the basement of the residence, and need J.A. at 591 (Telek Aff.). In addition to the evidence excluded not be redacted in Shamaeizadeh’s case. Therefore, in from Cunigan’s affidavit, Shamaeizadeh’s receipt for the evaluating the existence of probable cause for the issuance of purchase of lights and a blower should be excluded from the first search warrant, we can consider Cunigan’s statements Telek’s affidavit because it is unclear whether the officers about drugs and drug paraphernalia in the basement and the seized this evidence from the basement or the main floor of No. 01-6326 Shamaeizadeh v. Cunigan et al. 25 26 Shamaeizadeh v. Cunigan et al. No. 01-6326

the residence. The 390 marijuana plants were seized from the and the main floor. At the suppression hearing in the criminal basement, so Shamaeizadeh does not have standing to case, Wiles testified that he discovered that the door between challenge their inclusion in the affidavit. As with the first the two units had been kicked open. J.A. at 36 (Magistrate warrant, we conclude that the evidence in Telek’s redacted Judge’s Proposed Findings of Fact and Recommendation). At affidavit was sufficient to provide probable cause for a second the same hearing, Wiles testified that Schmitt led him into the warrant, at least with respect to the basement. basement and explained to him that although two men lived downstairs, “They don’t mind me being down here; I use the Although the evidence discovered in the basement phone on occasion,” suggesting that she was at liberty to established probable cause for the first and second warrants move throughout the entire residence. J.A. at 37 (Magistrate to search that portion of the residence, the evidence Judge’s Proposed Findings of Fact and Recommendation) discovered in the separate basement apartment does not in (quotation omitted). Before Wiles even entered the basement, itself establish probable cause to search the entire house. he observed Schmitt “exiting through the back door of the “[W]hen the structure under suspicion is divided into more downstairs portion of the residence.” J.A. at 37 (Magistrate than one occupancy unit, probable cause must exist for each Judge’s Proposed Findings of Fact and Recommendation). unit to be searched.” United States v. Whitney, 633 F.2d 902, According to Wiles, 907 (9th Cir. 1980), cert. denied, 450 U.S. 1004 (1981). Neither redacted affidavit establishes probable cause that It appeared . . . that [Schmitt] had free run of the house, evidence of a crime would be found “in [the] particular place” with the exception of the locked rooms. She had even in question — the main floor of the residence. Therefore, we stated that she used the phone down there often. She told conclude that the officers committed a constitutional violation me it was fine to go down there. Even as I was in the by searching the entire residence without probable cause to do back yard searching in the brush for possible suspects, so and that this right was clearly established. she came and got me from the downstairs door. Even though the officers violated Shamaeizadeh’s clearly J.A. at 453 (Wiles Dep.). This evidence suggests that the established constitutional rights, they are nevertheless entitled officers reasonably could have believed that all four to qualified immunity if Shamaeizadeh has failed to offer occupants of the residence had access to the residence in its sufficient evidence that the officers’ actions were objectively entirety. Therefore, it was objectively reasonable for the unreasonable in light of the clearly established constitutional officers to conclude that they had probable cause for a warrant rights. See Feathers, 319 F.3d at 848. We conclude that, in to search the entire house. light of the information available to the officers at the time of the search, it was objectively reasonable for them to believe Thus, the officers had probable cause for both warrants to that there was not a distinct boundary between the two parts search the basement, and, as discussed above, reasonably of the residence. could have believed on the facts of this case that this established probable cause for searches of the entire residence The officers clearly knew that two men lived in the in light of the information available to them at the time. We basement apartment and that they were away on spring break. therefore conclude that the officers are entitled to qualified However, they also had reason to believe that all occupants of immunity with respect to Shamaeizadeh’s § 1983 claim that the residence moved freely between the basement apartment the officers lacked probable cause for the first and second No. 01-6326 Shamaeizadeh v. Cunigan et al. 27 28 Shamaeizadeh v. Cunigan et al. No. 01-6326

warrants, and affirm the district court’s grant of summary Under the plain view doctrine, officers may seize items not judgment with respect to these claims. within the scope of the warrant where the evidence is “(1) in plain view; (2) of a character that is immediately 3. Wrongful Seizure During Execution of the First incriminating; (3) viewed by an officer lawfully located in a Warrant place from where the object can be seen; and (4) seized by an officer who has a lawful right of access to the object itself.” Shamaeizadeh argues that the district court erred by Roark, 36 F.3d at 18. Assuming that the officers were concluding that the officers did not unconstitutionally seize executing a valid warrant and thus were legally in a place items outside the scope of the first warrant. During the where they saw the jewelry and documents in plain view, the criminal case, the district court adopted the magistrate judge’s seizure of these items during the execution of the first warrant finding that the officers’ execution of the March 14, 1994, was nevertheless unconstitutional because their incriminating warrant went far beyond its terms when the officers seized character is not immediately apparent as an objective matter. paper records and receipts. The warrant authorized the officers to search for “[a]ny and all illegally possessed In determining whether probable cause is immediately controlled substances including marijuana, both growing and apparent upon viewing an object, this court has considered processed, and any drug paraphernalia, also any and all three factors: illegally possessed prescription drugs.” J.A. at 584 (1st Warrant). In addition to seizing these items, the officers also (1) the nexus between the seized object and the items seized numerous documents, records, and pieces of jewelry. particularized in the warrant; (2) whether the intrinsic nature or appearance of the seized object gives probable Seizing items beyond the scope of a warrant’s authorization cause to associate it with criminal activity; and violates the Fourth Amendment rights of the subject of a (3) whether probable cause is the direct result of the search. Andresen v. Maryland, 427 U.S. 463, 480 (1976); see executing officer’s instantaneous sensory perceptions. Brindley v. Best, 192 F.3d 525, 533 (6th Cir. 1999) (reversing a district court’s grant of summary judgment because “[n]o United States v. Calloway, 116 F.3d 1129, 1133 (6th Cir.), reasonable officer in the defendants’ position could have cert. denied, 522 U.S. 925 (1997). “[A]ssuming that there is believed that certain seized items were within the scope of the probable cause to associate the property with criminal warrant or evidence of a crime”). Generally, officers are activity,” however, a plain view seizure is “presumptively obligated to secure an additional warrant if they want to seize reasonable” and does not require an “unduly high degree of things not included in a warrant. However, where a warrant certainty.” Texas v. Brown, 460 U.S. 730, 741-42 (1983) justifies an officer’s initial intrusion and the officer “in the (quotation and emphasis omitted). course of the search come[s] across some other article of incriminating character,” the plain view doctrine may The officers argue that probable cause to seize the jewelry supplement the prior justification and permit the warrantless was immediately apparent because they reasonably believed seizure. Coolidge v. New Hampshire, 403 U.S. 443, 465 that the jewelry was derived from the proceeds of drug-related (1971). crimes. Although an officer need not be sure an item in plain view is contraband in order to seize it, “when an item appears suspicious to an officer but further investigation is required to No. 01-6326 Shamaeizadeh v. Cunigan et al. 29 30 Shamaeizadeh v. Cunigan et al. No. 01-6326

establish probable cause as to its association with criminal district court erred by granting summary judgment to the activity, the item is not immediately incriminating.” United officers regarding these claims. States v. McLevain, 310 F.3d 434, 443 (6th Cir. 2002) (quotation omitted). Nothing about the intrinsic nature of the C. Misrepresentation & False Arrest jewelry gave the officers cause to associate it with the drug activity under investigation. Calloway, 116 F.3d at 1133. Shamaeizadeh explicitly states that his misrepresentation Because further investigation would be necessary to establish and false arrest claims hinge on this court finding that probable cause of the existence of a relationship between the Shamaeizadeh has standing to challenge the searches of the jewelry and illegal drugs or drug paraphernalia, we conclude basement. In fact, his entire argument with respect to these that there was no clear nexus between the jewelry seized “and two claims is as follows: the items particularized in the search warrant.” United States v. Beal, 810 F.2d 574, 576 (6th Cir. 1987). Misrepresentation and False Arrest The Court dismissed Appellant[’]s constitutional claim The officers also maintain that probable cause to seize the for misrepresentation by Appellees on the affidavit for a documents was immediately apparent because the documents warrant by failing to put that the house consisted of two suggested that Shamaeizadeh had multiple identities and was residences. The Court felt that there was no causal forging instruments in violation of Kentucky law. With connection between the warrant search and the respect to the documents, reasonable officers could not misrepresentation. Secondly, the Court felt that believe that probable cause was apparent as a “direct result of Appellant had no claim for false arrest under §1983 the officer’s instantaneous sensory perception of the object.” because, again, there was no causal connection between Id. at 577 (quotation omitted). To have probable cause for the arrest and the improper search because Appellant had associating the seized documents with possible criminal no standing to complain about the basement search. activity, the officers would have required far more than an However, if Appellant has standing, as argued above, instant to conclude that any of the documents implicated to the basement search then the Court was in error criminal activity. The plain view exception therefore does not concerning the issues and must be reversed. apply to the seizure of either the jewelry or the documents. Shamaeizadeh Br. at 23-24. Because we conclude that The officers violated a clearly established constitutional Shamaeizadeh does not have standing to contest the basement right of which reasonable persons would have known — a searches, we need not address his claims of misrepresentation right to be free of seizures beyond the scope of a warrant, in and false arrest. the absence of an exception to the warrant requirement such as the plain view doctrine. Moreover, the undisputed D. Malicious Prosecution evidence indicates that the officers’ seizure of documents and jewelry was objectively unreasonable in light of these clearly Shamaeizadeh argues that the district court erred in established rights. Therefore, we conclude that the officers granting the officers summary judgment on his state law are not entitled to qualified immunity with respect to malicious prosecution claim as well. Under Kentucky law, Shamaeizadeh’s claims of wrongful seizure, and that the there are six elements of malicious prosecution: No. 01-6326 Shamaeizadeh v. Cunigan et al. 31 32 Shamaeizadeh v. Cunigan et al. No. 01-6326

(1) the institution or continuation of original judicial (6th Cir. 1992). Shamaeizadeh also states a claim against the proceedings, either civil or criminal, or of administrative City of Richmond for “fail[ing] or refus[ing] to supervise the or disciplinary proceedings, (2) by, or at the instance, of training of the other Defendants or to cause them to be trained the plaintiff, (3) the termination of such proceedings in thus showing a deliberate indifference to the violation of the defendant’s favor, (4) malice in the institution of such constitutional rights of the Plaintiff.” J.A. at 28 (2d Am. proceeding, (5) want or lack of probable cause for the Compl. ¶ 14). proceeding, and (6) the suffering of damage as a result of the proceeding. To establish municipal liability pursuant to § 1983, a plaintiff must allege an unconstitutional action that Collins v. Williams, 10 S.W.3d 493, 496 (Ky. Ct. App. 1999) “implements or executes a policy statement, ordinance, (quoting Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981)); regulation, or decision officially adopted and promulgated by see McMaster v. Cabinet for Human Res., 824 F.2d 518, 520- that body’s officers” or a “constitutional deprivation[] visited 21 (6th Cir. 1987). pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s Shamaeizadeh has failed to demonstrate the initiation or official decisionmaking channels.” Monell v. Dep’t of Soc. maintenance of a proceeding against the plaintiff by the Servs., 436 U.S. 658, 690-91 (1978). Only then can “the defendants. See William L. Prosser & W. Page Keeton, action of the municipality itself . . . be said to have caused the Prosser & Keeton on The Law of Torts § 119, at 871 (5th ed. harm.” Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1984). Neither the officers, the Richmond Police Department, 1994), cert. denied, 513 U.S. 1111 (1995); City of Canton v. nor the City of Richmond were involved in the prosecution of Harris, 489 U.S. 378, 385 (1989) (“[A] municipality can be Shamaeizadeh. Although two officers testified at the found liable under § 1983 only where the municipality itself suppression hearing during the criminal proceedings, causes the constitutional violation at issue. Respondeat Shamaeizadeh does not contest that he was indicted by a superior or vicarious liability will not attach under § 1983.”). federal grand jury and none of the defendants so much as testified before the grand jury. Because the initiation or The Supreme Court has limited § 1983 actions for the maintenance of a proceeding by the defendants is an element inadequacy of police training, reasoning that “[o]nly where a of malicious prosecution claims under Kentucky law, we municipality’s failure to train its employees in a relevant affirm the district court’s grant of summary judgment to the respect evidences a ‘deliberate indifference’ to the rights of its defendants with respect to Shamaeizadeh’s state malicious inhabitants can such a shortcoming be properly thought of as prosecution claim. a city ‘policy or custom’ that is actionable under § 1983.” Harris, 489 U.S. at 389. There is no evidence that E. Municipal Liability Richmond’s police-training policies demonstrate deliberate indifference to Shamaeizadeh’s constitutional rights. The We construe Shamaeizadeh’s § 1983 claims against the City of Richmond trains officers at Eastern Kentucky officers in their official capacity as claims against the City of University’s law enforcement program and the Department of Richmond. “[A] section 1983 action against a city official in Justice’s basic training program, provides specific training on his or her official capacity is treated as an action against the the execution of searches and seizures, and provides field City entity itself.” Barber v. City of Salem, 953 F.2d 232, 237 officers with training manuals and a manual containing a No. 01-6326 Shamaeizadeh v. Cunigan et al. 33

black-letter-law summary of search and seizure law. The defendant officers completed basic training and were periodically instructed on developments in criminal law. Shamaeizadeh has failed to set forth any facts showing that the City was deliberately indifferent to the training of its officers. Furthermore, Shamaeizadeh also has failed to identify any specific custom, policy, or practice either with respect to the officers’ training or with respect to the officers’ searches of his residence and seizure of items therefrom. He does not allege any facts linking the conduct of individual officers to a policy of the City of Richmond or its police department. Therefore, we conclude that the district court did not err by granting the City of Richmond summary judgment with respect to this portion of Shamaeizadeh’s claim. III. CONCLUSION For the reasons explained above, we REVERSE the district court’s grant of summary judgment with respect to the second and third warrantless searches, and with respect to Shamaeizadeh’s claim that the officers exceeded the scope of the first search warrant. We AFFIRM the district court on all other grounds. We REMAND for further proceedings consistent with this opinion.