                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0004p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                      X
                                                       -
 CARL ROBERT ARMSTRONG; DONNA M. BRADLEY;
                                                       -
 RENAE ARMSTRONG; LORI ARMSTRONG; BRANDY
                                                       -
 ARMSTRONG; CARL R. ARMSTRONG, JR.; JEAN K.
                                                       -
                                                           No. 04-2192
 ARMSTRONG,
                                                       ,
                               Plaintiffs-Appellees, >
                                                       -
                                                       -
                                                       -
          v.

                                                       -
                                        Defendants, -
 CITY OF MELVINDALE, et al.,
                                                       -
                                                       -
 DAVID FOBAR; BRAD GRATZ,                              -
                             Defendants-Appellants. -
                                                       -
                                                      N
                       Appeal from the United States District Court
                      for the Eastern District of Michigan at Detroit.
                     No. 02-73492—Paul D. Borman, District Judge.
                                          Argued: October 27, 2005
                                   Decided and Filed: January 6, 2006
               Before: GILMAN and COOK, Circuit Judges; MILLS, District Judge.*
                                             _________________
                                                  COUNSEL
ARGUED: Marcia L. Howe, JOHNSON, ROSATI, LaBARGE, ASELTYNE & FIELD,
Farmington Hills, Michigan, for Appellants. Cynthia Heenan, CONSTITUTIONAL LITIGATION
ASSOCIATES, Detroit, Michigan, for Appellees. ON BRIEF: Marcia L. Howe, JOHNSON,
ROSATI, LaBARGE, ASELTYNE & FIELD, Farmington Hills, Michigan, for Appellants. Cynthia
Heenan, CONSTITUTIONAL LITIGATION ASSOCIATES, Detroit, Michigan, for Appellees.




        *
          The Honorable Richard Mills, United States District Judge for the Central District of Illinois, sitting by
designation.


                                                         1
No. 04-2192               Armstrong, et al. v. City of Melvindale, et al.                                   Page 2


                                             _________________
                                                 OPINION
                                             _________________
        COOK, Circuit Judge. Defendants-Appellants, Southgate Police Officers David Fobar and
Brad Gratz, appeal the district court’s order denying their motion for summary judgment with
respect to: (1) Plaintiffs-Appellees’ claim of a Fourth Amendment violation, brought under 42
U.S.C. § 1983, arising out of Defendants’ execution of a search warrant on the premises of
Plaintiffs’ business, and (2) their defense of qualified immunity. Because we find that a reasonable
person in the officers’ position would not have known that his conduct violated a clearly established
right, we reverse the district court’s denial of Defendants’ motion for summary judgment on
qualified immunity grounds.
                                                         I.
                                            A. Factual Background
        In 1999 Defendants executed a warrant on the premises of Cad Visions,1 a Southgate,
Michigan business (allegedly known as a center of narcotics activity) to inventory and seize assets
in connection with a forfeiture action pending against John Ziriada, the owner and longtime friend
of Carl Armstrong, one of the plaintiffs.2 During the search, Armstrong entered the store and
asserted ownership of the computers in the building. He claimed to have ownership documents, but
presented Defendants with only his business card. Defendants seized the computers.
        Defendants then sought a warrant to search Armstrong’s business, Computer Time, located
in Melvindale, Michigan, for the documents that would substantiate Armstrong’s ownership claim.
Before applying for the warrant, Defendants consulted a county prosecutor, Karen Plants, about the
legality of obtaining such a warrant. Plants advised the Defendants that she “did think it was legally
feasible” and she ultimately reviewed the affidavit and warrant Fobar drafted, finding it
unobjectionable. Defendants then presented those documents to a judge, who issued the warrant.
        The resulting search failed to turn up any documentation, because, as it turns out, Armstrong
lied about owning the computers. But the officers’ search of the premises did turn up marijuana.
Defendants did not seize the drugs themselves; instead they informed the local Melvindale police
about the discovery. The Melvindale police then obtained a separate warrant, seized a large quantity
of contraband, and soon began forfeiture proceedings against the Armstrongs. The forfeiture action
was later dismissed after a judge suppressed the evidence on the ground that both searches (the one
conducted by Defendants and the one conducted by the Melvindale police) were unconstitutional.
                                          B. Procedural Background
        The Armstrongs then filed suit, asserting various causes of action under both federal and
state law. Defendants responded by moving for summary judgment on all claims, which the district
court granted in part and denied in part. The court granted Defendants’ motion for summary
judgment with respect to Plaintiffs’ federal conspiracy claim as well as their state-law claims for


        1
            The spelling varies throughout the record. Variations include “Cad Visions,” “CadVisions,” and “CAD
Visions.”
        2
          Originally, seven members of the Armstrong family were named plaintiffs. By Stipulation and Order, four
individuals were dismissed from the action and only Carl, his wife Donna, and his mother Jean (who holds title to the
building) now remain as parties to the case.
No. 04-2192               Armstrong, et al. v. City of Melvindale, et al.                                        Page 3


malicious prosecution, conversion, and trespass. Summary judgment was also granted with respect
to Plaintiffs’ claims for constitutional violations, brought via 42 U.S.C. § 1983, of their First
Amendment, Due Process, and Equal Protection rights. Plaintiffs do not appeal these rulings.
Defendants appeal only the denial of summary judgment with respect to Plaintiffs’ claimed Fourth
Amendment violation and their claim to qualified immunity for any such violation.
                                                           II.
                                      A. Jurisdiction/Standard of Review
        Circuit “courts generally only have jurisdiction over the final decisions of district courts,”
Crockett v. Cumberland Coll., 316 F.3d 571, 577 (6th Cir. 2003); 28 U.S.C. § 1291, and the “denial
of summary judgment is ordinarily not a final judgment.” Barrett v. Steubenville City Schs., 388
F.3d 967, 970 (6th Cir. 2004) (citing Hoover v. Radabaugh, 307 F.3d 460, 465 (6th Cir. 2002)). But
where, as here, Defendants do not dispute the facts—they claim instead that the alleged facts do not
reflect a violation of clearly established law—“a district court’s denial of a claim of qualified
immunity . . . is an appealable ‘final decision’ . . . notwithstanding the absence of a final judgment.”
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see Hoover, 307 F.3d at 465 (citing Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)).
       The appealable issue on review before us “is a purely legal one: whether the facts
alleged . . . support a claim of violation of clearly established law,” Mitchell, 472 U.S. at 529 n.9,
and accordingly, we review the district court’s denial of qualified immunity de novo under the usual
summary judgment standard. See Fed. R. Civ. P. 56(c).
                                       B. Qualified Immunity Framework
        Qualified immunity shields public officials who perform discretionary functions from the
necessity of defending against tort liability so long as their conduct does not violate clearly
established rights of which a reasonable official would have known. See Fisher v. Harden, 398 F.3d
837, 842 (6th Cir. 2005). Whether qualified immunity applies turns on the “objective legal
reasonableness” of the official’s action, viewed on a fact-specific, case-by-case basis. O'Brien v.
City of Grand Rapids, 23 F.3d 990, 999 (6th Cir. 1994) (citation omitted). Qualified immunity is
an affirmative defense; once asserted, the “burden of proof is on the plaintiff to show that the
defendant[s] [are] not entitled to qualified immunity.” Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir.
2002) (citing Wegener v. Covington, 933 F.2d 390, 392 (6th Cir. 1991)).
        The doctrine is designed to “avoid excessive disruption of government and permit the
resolution of many insubstantial claims on summary judgment,” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982); it protects “all but the plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). To analyze claims of qualified immunity the court uses
a two-part test: “(1) whether, considering the allegations in a light most favorable to the party
injured, a constitutional right has been violated, and (2) whether that right was clearly established.”
Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir. 2005) (citing Saucier v. Katz, 533
U.S. 194, 201 (2001)).3


         3
           Panels of this court occasionally have added a third step to the inquiry: “whether the plaintiff has offered
sufficient evidence ‘to indicate that what the official allegedly did was objectively unreasonable in light of the clearly
established constitutional rights.’” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (quoting Williams v. Mehra, 186
F.3d 685, 691 (6th Cir. 1999) (en banc)); see also Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.
2004). This third inquiry “may in some cases increase the clarity of the proper analysis. In many factual contexts,
however, . . . the fact that a right is ‘clearly established’ sufficiently implies that its violation is objectively
unreasonable.” Estate of Carter, 408 F.3d at 311 n.2. This opinion employs the two-step analysis.
No. 04-2192               Armstrong, et al. v. City of Melvindale, et al.                                        Page 4


                                            1. Constitutional Violation
        Whether a constitutional violation occurred is a threshold issue: if the officers’ conduct
violated no constitutionally protected right, there is no need for further analysis. Saucier, 533 U.S.
at 201. Here, Plaintiffs argue that Defendants’ warrant was constitutionally deficient because the
Fourth Amendment prohibits the issuance of a search warrant except upon a showing that probable
cause exists to believe that fruits, instrumentalities, or evidence of a crime will be found at the place
sought to be searched. See Warden v. Hayden, 387 U.S. 294, 301-02 (1967). Plaintiffs allege that
when the officers executed the search of their Melvindale business they were not searching for
evidence of a crime, and thus, the search violated their constitutional rights. We agree.
          Defendants respond with two arguments to support the constitutional validity of the
warrant, both of which fall short. First, they argue that the warrant was valid under several
provisions of Michigan’s drug forfeiture laws. At oral argument, however, Defendants conceded
that they neglected to argue this point of law below. Although both parties briefed this court on the
issue, the failure to present an issue to the district court forfeits the right to have the argument
addressed on appeal. See Legg v. Chopra, 286 F.3d 286, 294 (6th Cir. 2002) (citing Foster v.
Barilow, 6 F.3d 405, 407 (6th Cir. 1993)) (“In general, ‘issues not presented to the district court but
raised for the first time on appeal are not properly before the court.’”) (citation omitted). It is well-
settled that this court’s “function is ‘to review the case presented to the district court, rather than a
better case fashioned after a[n] . . . unfavorable order.’” Barner v. Pilkington N. Am., Inc., 399 F.3d
745, 749 (6th Cir. 2005) (citation omitted).
        Second, Defendants posit that Zurcher v. Stanford Daily, 436 U.S. 547 (1978), requires a
finding of no Fourth Amendment violation. Defendants point to the fact that the Zurcher Court
upheld the constitutionality of a warrant issued to search the premises of a third party not suspected
of criminal wrongdoing. Similarly, no suspected wrongdoing supported the issuance of the warrant
here, say Defendants.
       The Zurcher feature missing here, however, is evidence of a crime. In Zurcher the police
had probable cause to believe that evidence of a crime would be located on the third-party’s
premises. Though Defendants may have had probable cause to believe the ownership documents
would be found on the Melvindale premises, no probable cause existed to believe the documents
themselves evidenced a crime. Although Armstrong asserted an ownership interest in the seized
computers, the officers did not seek4to obtain the warrant on the strength of any link between those
ownership documents and a crime.
       Because the object of Defendants’ search—the ownership papers—lacked any evident
criminal link, the search was unconstitutional and Defendants violated Plaintiffs’ Fourth
Amendment rights by conducting it.




         4
           The constitutional shortcomings of the warrant cannot be saved by the portion of the warrant that states
probable cause existed to believe Armstrong’s business was acting as a “shell” corporation to conceal or legitimize
Ziriada’s drug proceeds. Defendants never argued in the district court that the search was constitutional for this reason
and thus forfeited this argument. Moreover, Defendants admitted in their brief and in their deposition testimony that they
sought a warrant to look only for the ownership papers.
No. 04-2192            Armstrong, et al. v. City of Melvindale, et al.                            Page 5


                                     2. Clearly Established Right
        Having determined that there was a constitutional violation, the question now becomes
whether the Fourth Amendment right violated by Defendants was clearly established. “In
undertaking this inquiry, we do not assess the right violated at a high level of generality, but, instead,
we must determine whether the right [is] ‘clearly established’ in a more particularized . . .
sense . . . .’” Myers v. Potter, 422 F.3d 347, 356 (6th Cir. 2005) (quoting Anderson v. Creighton,
483 U.S. 635, 639-40 (1987)). The Supreme Court has stated that “[t]he relevant, dispositive inquiry
in determining whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. It
is not necessary, however, for the exact factual situation to have previously been declared unlawful,
so long as Defendants have “fair warning.” Hope v. Pelzer, 536 U.S. 730, 739-40 (2002).
         In the context of an unconstitutional warrant, an official “will not be immune if . . . it is
obvious that no reasonably competent officer would have concluded that a warrant should issue; but
if officers of reasonable competence could disagree on this issue, immunity should be recognized.”
Malley, 475 U.S. at 341. Put another way, if there can be reasonable disagreement, then the right
cannot be considered “clearly established.” Accordingly, to be entitled to qualified immunity,
Defendants must “exercis[e] reasonable professional judgment” in applying for the warrant. Id. at
346.
        Probable cause to search requires “a ‘substantial basis for . . . [concluding]’ that a search
would uncover evidence of wrongdoing.” Illinois v. Gates, 462 U.S. 213, 236 (1983) (alterations
in original) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). The Supreme Court has
never quantified the degree of certainty required for a determination of probable cause. It has stated
that “probable cause means something ‘less than evidence that would justify . . . conviction,’ but
‘more than bare suspicion.’” Greene v. Reeves, 80 F.3d 1101, 1105 (6th Cir. 1996) (quoting
Brinegar v. United States, 338 U.S. 160, 175 (1949)).
        Defendants present two arguments that they did not violate a clearly established right. First,
they again proffer the forfeited argument regarding the Michigan drug forfeiture laws. Second, they
argue that the assurances of constitutional propriety gained from consultation with Prosecutor Plants,
her review of the warrant and supporting affidavit, and the judge’s issuance of the warrant rendered
reasonable their belief that probable cause supported the issuance of the warrant.
        To rebut this argument, Plaintiffs point to Sixth Circuit and Supreme Court precedent
holding that the issuance of a warrant is not an automatic shield from liability but is “only one factor
[used] in applying the test of ‘reasonable professional judgment’ to the officers’ conduct.” Id. at
1107 (citation omitted); Malley, 475 U.S. at 345-46 (“[O]urs is not an ideal system, and it is possible
that a magistrate, working under docket pressures, will fail to perform as a magistrate should.”). We
agree that such reliance does not guarantee immunity, but, as the Supreme Court has said: “Only
where the warrant application is so lacking in indicia of probable cause as to render official belief
in its existence unreasonable will the shield of immunity be lost.” Malley, 475 U.S. at 344-45
(internal citation omitted).
        The district court never reached the question of whether the officers’ reliance on the issuance
of the warrant was unreasonable. It instead focused only on the fact of a constitutional violation.
This suggests a misconception; even with a constitutional breach, the law accords qualified
immunity protection under appropriate circumstances. This case presents such circumstances.
       Defendants consulted with Prosecutor Plants because they were uncertain as to whether a
warrant to search the Melvindale premises was constitutional. Plants not only advised them that
a warrant would be constitutionally permissible, she also sanctioned a draft of the warrant and
No. 04-2192                Armstrong, et al. v. City of Melvindale, et al.                                          Page 6


supporting affidavit.5 Only then did Defendants apply to a judge for the warrant. With the judge’s
approval, Defendants executed the search, and Plaintiffs do not allege that the search exceeded the
scope of the warrant.
        The case of Greene v. Reeves, 80 F.3d 1101 (6th Cir. 1996), lends support to our conclusion.
In Greene, a postal worker saw a postcard he believed depicted child pornography. He alerted a
mail specialist who contacted the police. After investigating further the officers approached a local
prosecutor for legal advice about whether probable cause existed to arrest the distributors of the
postcard and to search their home. As a result, the prosecutor prepared the necessary affidavits and
warrants, and a judge signed them. The police then executed a search, confiscated various
photographs, and arrested the suspected distributors. A grand jury later indicted them, but the
charges were dismissed. The plaintiffs then brought a claim, pursuant to 42 U.S.C. § 1983, alleging
a violation of their Fourth Amendment rights.
         In finding that qualified immunity shielded the officials from liability, this court noted that
“a postal worker, a prohibitive mail specialist, a . . . detective, a commonwealth prosecutor, the
judge . . ., and a grand jury were sufficiently concerned over the conduct . . . to take action.” Greene,
80 F.3d at 1107. This court thought it unlikely that all such officials were not only wrong but also
unreasonable in their beliefs. Id. Additionally, the Greene court noted the difficulty in
distinguishing between photos that violated child pornography laws and photos that were simply in
bad taste. Id.
        This case is similar. Like the defendants in Greene, the officers expressed their uncertainty
about the law to a prosecutor and received assurances in response before applying for the warrant.
Under these circumstances, we determine that Defendants did not exceed the “broad range of
reasonable professional judgment” accorded under the doctrine of qualified immunity. Id. at 1107.
Defendants wrongly believed that probable cause supported the warrant, but their mistake was not
so unreasonable as to deny them qualified immunity. That a court later declared the search
unconstitutional matters not because officials are “‘entitled to qualified immunity [when] their
decision was reasonable, even if mistaken.’” Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir.
1995) (alteration and emphasis in original) (quoting Castro v. United States, 34 F.3d 106, 112 (2d
Cir. 1994)); see Anderson, 483 U.S. at 641 (noting that law enforcement officials who reasonably
but mistakenly conclude that probable cause is present are entitled to immunity).
       Because the officers exercised reasonable professional judgment in applying for the warrant
and because reasonable officers in Defendants’ position might have believed that the warrant should
have issued, we cannot say that Defendants violated a clearly established right by conducting the
search of Plaintiffs’ business.
                                                            III.
        We reverse the district court’s denial of Defendants’ motion for summary judgment on
qualified immunity grounds and remand with instructions to enter summary judgment for
Defendants.




         5
           Plaintiffs suggested at oral argument that the “consultation” with Prosecutor Plants should be discounted
because, in essence, it was part of a conspiracy among the Defendants, Plants, and the judge to violate Plaintiffs’
constitutional rights. The district court resolved this issue against Plaintiffs and Plaintiffs did not appeal that decision.
