                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0641n.06

                                            No. 16-1627

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Dec 01, 2016
TARAS P. NYKORIAK,                                        )               DEBORAH S. HUNT, Clerk
                                                          )
        Plaintiff-Appellant,                              )
                                                          )   ON APPEAL FROM THE UNITED
v.                                                        )   STATES DISTRICT COURT FOR
                                                          )   THE WESTERN DISTRICT OF
LENA WILECZEK, individually and in her                    )   MICHIGAN
official capacity as a Michigan State Trooper,            )
                                                          )
        Defendant-Appellee.                               )
                                                          )


        BEFORE: NORRIS, GIBBONS, and ROGERS, Circuit Judges.

        PER CURIAM.            Taras P. Nykoriak appeals the district court’s decision granting

summary judgment in favor of Michigan State Police Trooper Lena Wileczek in this civil rights

action filed under 42 U.S.C. § 1983.

        On March 8, 2015, Nykoriak called 911 to report that his female passenger had turned

white and thrown up and that she appeared to be having a seizure. In response to Nykoriak’s 911

call, Michigan State Police Troopers, including Trooper Wileczek, were dispatched to the report

of a non-responsive female in a vehicle in a parking lot at a Marathon gas station on M-51 near

the I-94 exit.

        Trooper Jesse Binns, the first officer to arrive at the scene, observed a black Ford SUV

occupied by Nykoriak in the driver’s seat and Sabina Puchalski in the passenger’s seat. Trooper

Binns recognized Nykoriak from a traffic stop some months prior during which another occupant

of the vehicle was found to be in possession of heroin.
No. 16-1627
Nykoriak v. Wileczek

       Upon her arrival at the scene, Trooper Wileczek attempted to speak with Puchalski, who

had a difficult time focusing and answering questions. Puchalski had saliva on the left side of

her face and could not keep her eyes open, appearing to nod in and out of consciousness. Based

on her training and experience, Trooper Wileczek believed that Puchalski was under the

influence of heroin or other opiates and may have been overdosing.

       After speaking with Puchalski, Trooper Wileczek learned that Trooper Binns recognized

Nykoriak from a prior traffic stop involving heroin and that multiple cell phones were observed

in Nykoriak’s vehicle. When Nykoriak refused to consent to a search of his vehicle, the troopers

called to request a canine unit. Trooper Wileczek asked Nykoriak to exit his vehicle, and he

complied. Trooper Wileczek informed Nykoriak that he was not under arrest and that she

wanted him to wait in her cruiser. As Trooper Wileczek was patting Nykoriak down, he told her

that he was carrying a concealed pistol. This was the first time that Nykoriak had mentioned the

pistol to the troopers. Trooper Wileczek took the pistol, handcuffed Nykoriak, and placed him in

the back of her cruiser. The troopers then attempted to verify that Nykoriak had a concealed

pistol license.   Trooper Wileczek was unable obtain such verification through the Law

Enforcement Information Network, but another trooper verified through other electronic means

that Nykoriak had a license. Trooper Wileczek also contacted dispatch to determine whether the

pistol was registered; dispatch informed her that no record of registration was found.

       When the canine unit arrived on the scene, the canine conducted a free air search around

Nykoriak’s vehicle and positively indicated narcotics near the rear of the vehicle and the front

passenger seat. The troopers searched the vehicle but found no drugs. After searching the

vehicle and conducting an investigation regarding the concealed pistol, the troopers released

Nykoriak at the scene.


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Nykoriak v. Wileczek

       Nykoriak subsequently filed this § 1983 action against Trooper Wileczek, asserting that

she violated the Fourth and Fourteenth Amendments by falsely arresting and imprisoning him

and illegally confiscating his pistol. Nykoriak also brought a state-law claim for replevin of his

firearm. Trooper Wileczek filed a motion for summary judgment, which the district court

granted. This timely appeal followed.

       We review de novo the district court’s decision granting summary judgment. Stricker v.

Twp. of Cambridge, 710 F.3d 350, 357 (6th Cir. 2013). Summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Viewing the evidence and drawing all

reasonable inferences in favor of the non-moving party, we must determine “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-52 (1986).

       Nykoriak contends that his complaint sufficiently stated claims against Trooper Wileczek

and that genuine issues of material fact precluded summary judgment. However, “once a motion

for summary judgment is made and is supported as required” by Rule 56, the non-moving party

“cannot rest solely on the allegations made in [his] pleadings” but “must set forth by affidavits or

otherwise specific facts showing that there is a genuine issue for trial.” Skousen v. Brighton

High Sch., 305 F.3d 520, 527 (6th Cir. 2002). In response to Trooper Wileczek’s motion for

summary judgment, Nykoriak relied solely on the factual allegations in his unverified

complaint—many of which are refuted by the video and audio recordings in evidence. Nykoriak

did not submit an affidavit or cite any evidence in the record showing any disputed facts. “The

failure to present any evidence to counter a well-supported motion for summary judgment alone


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Nykoriak v. Wileczek

is grounds for granting the motion.” Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009). Based

on the undisputed evidence presented by Trooper Wileczek, the district court properly granted

her motion for summary judgment.

       In support of his Fourth Amendment claims, Nykoriak contends that the encounter with

the troopers became an arrest lacking probable cause when Trooper Wileczek handcuffed him

and placed him in the back of her cruiser. In the alternative, Nykoriak argues that Trooper

Wileczek lacked reasonable suspicion to stop and search him.

       “An officer may detain an individual for a short time for investigatory purposes if, under

the totality of the circumstances, [s]he has ‘reasonable suspicion,’ that is, ‘a particularized and

objective basis for suspecting the particular person . . . of criminal activity based on specific and

articulable facts.’” Brown v. Lewis, 779 F.3d 401, 412 (6th Cir. 2015) (quoting Hoover v. Walsh,

682 F.3d 481, 494 (6th Cir. 2012)); see generally Terry v. Ohio, 392 U.S. 1 (1968). “Here, we

must assess not only what the officers knew at the time of the initial stop but also the information

developed during the course of that initial stop.” Hoover, 682 F.3d at 497. “Once justified, an

investigatory stop is reasonable if the ‘degree of intrusion into the suspect’s personal security

was reasonably related in scope to the situation at hand.’” Id. (quoting O’Malley v. City of Flint,

652 F.3d 662, 670 (6th Cir. 2011)). “When the nature of a seizure exceeds the bounds of a

permissible investigative stop, the detention may become an arrest that must be supported by

probable cause.” Dorsey v. Barber, 517 F.3d 389, 398 (6th Cir. 2008). In determining whether a

seizure has crossed those bounds, we consider such factors as “the length of the detention, the

manner in which it is conducted, and the degree of force used.” Brown, 779 F.3d at 414 (quoting

Smoak v. Hall, 460 F.3d 768, 781 (6th Cir. 2006)).




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Nykoriak v. Wileczek

         Under the totality of the circumstances, Trooper Wileczek had reasonable suspicion that

Nykoriak had drugs in his vehicle. Nykoriak’s passenger appeared to be under the influence of

heroin or other opiates and possibly overdosing. Trooper Wileczek learned from the other

troopers that Nykoriak had previously been involved in a traffic stop during which heroin was

found and that he had multiple cell phones in his vehicle. According to Trooper Wileczek, based

on her training and experience, multiple cell phones are often found in the possession of people

engaged in drug activity, the I-94 corridor between Chicago and Detroit is a known drug-

trafficking route, and persons engaged in drug activity are often armed. “[O]fficers who stop a

person who is ‘reasonably suspected of carrying drugs’ are ‘entitled to rely on their experience

and training in concluding that weapons are frequently used in drug transactions,’ and to take

reasonable measures to protect themselves.” United States v. Jacob, 377 F.3d 573, 579 (6th Cir.

2004) (quoting United States v. Heath, 259 F.3d 522, 530 (6th Cir. 2001)).         Accordingly,

Trooper Wileczek acted reasonably in asking Nykoriak to exit his vehicle and patting him down.

         While patting Nykoriak down, Trooper Wileczek discovered that he was carrying a

concealed pistol, which he had not disclosed previously. Nykoriak’s concealed pistol and his

failure to tell the troopers about it until during the pat-down provided further grounds for

suspecting that he was engaged in drug activity and that he posed a threat to officer safety.

Under these circumstances, it was reasonable for Trooper Wileczek to handcuff Nykoriak and

place him in the back of her cruiser while the troopers conducted their investigation regarding

the potential drug activity and the concealed firearm. See id. at 579-80; O’Malley, 652 F.3d at

670-71. Trooper Wileczek’s reasonable actions did not transform Nykoriak’s detention into an

arrest. See Houston v. Clark Cty. Sheriff Deputy John Does 1-5, 174 F.3d 809, 815 (6th Cir.

1999).


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Nykoriak v. Wileczek

       Nykoriak further contends that Trooper Wileczek lacked reasonable suspicion to search

his vehicle. As addressed above, Trooper Wileczek had reasonable suspicion that Nykoriak had

drugs in his vehicle. Calling for a canine unit was a reasonable means of dispelling that

suspicion. See United States v. Winters, 782 F.3d 289, 303-04 (6th Cir. 2015). “Under the

automobile exception, police officers may conduct a warrantless search of a vehicle if they have

‘probable cause to believe that the vehicle contains evidence of a crime.’” United States v.

Smith, 510 F.3d 641, 647 (6th Cir. 2007) (quoting United States v. Lumpkin, 159 F.3d 983, 986

(6th Cir. 1998)). Here, the positive indication by the canine was “sufficient to establish probable

cause for the presence of a controlled substance” to justify the warrantless search of Nykoriak’s

vehicle. United States v. Diaz, 25 F.3d 392, 393-94 (6th Cir. 1994).

       Finally, Nykoriak asserts that his replevin action is valid because Trooper Wileczek had

no right to confiscate his pistol. Under Michigan law, “[a] civil action may be brought to recover

possession of any goods or chattels which have been unlawfully taken or unlawfully detained.”

Mich. Comp. Laws § 600.2920(1). Michigan’s concealed carry statute requires an individual to

have his concealed carry license in his possession at all times that he is carrying a concealed

pistol. Mich. Comp. Laws § 28.425f(1). A licensed individual who is carrying a concealed

pistol and is stopped by a peace officer must “immediately disclose to the peace officer that he or

she is carrying a pistol . . . concealed upon his or her person.” Mich. Comp. Laws § 28.425f(3).

Michigan law also requires a licensed individual to take certain steps to register a pistol. See

Mich. Comp. Laws § 28.422a. Because Nykoriak carried his pistol in violation of these firearm

laws, the pistol was subject to immediate seizure. Mich. Comp. Laws §§ 28.425f(7), 28.425g.

After the pistol’s seizure, Nykoriak did not present his license or registration documents to the

Michigan State Police. See id. As the district court properly concluded, Nykoriak could not


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Nykoriak v. Wileczek

maintain a replevin action due to his failure to demonstrate that his pistol was “unlawfully taken

or unlawfully detained.”

       For the foregoing reasons, we AFFIRM the district court’s decision granting summary

judgment in favor of Trooper Wileczek.




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