               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0681n.06

                                  Case Nos. 14-2595/15-2326

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                              FILED
                                                                        Dec 16, 2016
ANGIE HALL; MATTHEW HALL,                            )              DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiffs-Appellees,                         )
                                                     )        ON APPEAL FROM THE
v.                                                   )        UNITED STATES DISTRICT
                                                     )        COURT FOR THE WESTERN
KATRICE SWEET; KATHLEEN SINNAMON;                    )        DISTRICT OF MICHIGAN
JIM GALE; MAURA D. CORRIGAN, in their                )
individual and official capacities,                  )

       Defendants-Appellants.                                                     OPINION


BEFORE: KEITH, McKEAGUE, and WHITE, Circuit Judges.

       McKEAGUE, Circuit Judge. This case arises out of investigations of a group child

care home. On two separate occasions, once in 2010 and once in 2011, employees of Michigan’s

Department of Health and Human Services, Katrice Sweet and Kathleen Sinnamon, responded to

complaints that Angie Hall’s group child care home was in violation of her license. On both

occasions, one or both employees searched the Halls’ home looking for children Ms. Hall may

have hidden from inspectors. During the 2010 search, children were found hidden in a private

room behind a locked door. Ms. Hall’s license was subsequently revoked.

       The Halls brought suit under 42 U.S.C. § 1983, in part claiming that the searches of their

home violated the Fourth Amendment. The district court denied defendants’ motion to dismiss

based on qualified immunity on the claim, holding that the complaint adequately alleged a
Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


colorable claim in avoidance of qualified immunity. However, Ms. Hall consented to searches of

this nature in her 2008 license renewal application, and such consent undercuts the Fourth

Amendment claim. Moreover, plaintiffs failed to allege conduct that violated their rights under

clearly established law at the time of the investigations. Therefore, we reverse the district court’s

order denying defendants Sweet and Sinnamon qualified immunity.

                                                 I

       Beginning in 2006, Angie Hall operated a licensed “group child care home” in

Middleville, Michigan in the house she owned with her husband. The Halls’ living space was on

the upper level and approved child care space was on the lower level. The entrance to the living

area on the first floor was also the entrance to the day care space on the lower level. The group

child care home was subject to many rules under Michigan’s child care licensing regulations,

including a maximum capacity of twelve children and a maximum child-to-caregiver ratio of 6 to

1. See Mich. Admin. Code, R. 400.1908, R. 4001.1910.

       In 2008, Ms. Hall applied for renewal of her license. As part of the one-page renewal

application, Ms. Hall checked a box agreeing to an inspection of her facility. She signed the

application and her license was renewed without restrictions or limitations.

       In 2010, authorities received an anonymous complaint that Ms. Hall’s group child care

home was over-capacity and that she was hiding children during inspections.1 In response,

Katrice Sweet, a licensing consultant with the State of Michigan’s Department of Health and

Human Services (DHHS) Bureau of Children and Adult Licensing, conducted an unannounced

on-site inspection of the child care home.



       1
         Hall had previously been found to be both over-capacity and over-ratio. Hall signed a
Corrective Action Plan in 2007 admitting to being over-capacity and over-ratio and agreeing to
future compliance.
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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


       On the day of the inspection, Sweet entered the house without knocking and without a

warrant. She went directly to the lower level where Ms. Hall was supervising children with an

assistant. Sweet demanded that Ms. Hall show her the entire home. Together with Ms. Hall,

Sweet looked throughout the home for hidden children, including in bedrooms, closets, and

cabinets on the upper level. Eventually, she found four children hiding behind a locked door in

the lower level in space used by the Halls as a workout room not approved for child care. With

those four children counted, the child care home was supervising fifteen children, and was thus

over-capacity and over-ratio. Sweet’s subsequent report led to an administrative hearing and

contributed to the eventual revocation of Hall’s license.

       The 2011 inspection took place while the administrative process was playing itself out.

Following a complaint that the group child care home was operating without an assistant

caregiver, Sweet, along with her supervisor Kathleen Sinnamon, returned to the house to

investigate, without a warrant. Sweet again searched the entirety of the home. Unlike the 2010

investigation, however, the 2011 investigation uncovered no violations. Id. In January of 2012,

a Michigan appeals court affirmed the Administrative Law Judge’s decision to revoke Hall’s

license.

       Following the revocation of Ms. Hall’s license, Angie and Matthew Hall filed a

complaint, under 42 U.S.C. § 1983 in the United States District Court for the Western District of

Michigan, alleging that DHHS employees had committed various constitutional violations during

the two investigations and the administrative proceedings against Angie Hall.          Plaintiffs’




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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


complaint named DHHS Bureau of Children and Adult Licensing directors Maura Corrigan and

Ismael Ahmed,2 bureau director Jim Gale, Sweet, and Sinnamon as defendants.

       In place of an answer, the defendants filed a motion to dismiss that raised several grounds

for dismissal, including a qualified immunity defense.          R. 57, Dist. Ct. Op. PID 1234.

Following subsequent briefing, the district court issued its order granting the defendants’ motion

on all counts against all defendants except one: the claim that Sweet and Sinnamon’s warrantless

searches of the Halls’ residence during the 2010 and 2011 investigations violated the Fourth

Amendment.3 Id. at 1238, 1274.

       In the district court, defendants argued that the 2010 and 2011 investigations fell within

an exception to the Fourth Amendment warrant requirement. Id. at 1259–60. The district court

disagreed. Id. at 1262. The court held that a warrantless search of a home is presumptively

unreasonable, that the warrant requirement was clearly established law, and that the pleadings

did not support defendants’ position that a warrant exception applied here. Id. at 1259.

       The district court rejected all three theories asserted by defendants that would have made

out exceptions to the warrant requirement. Id. Defendants first argued that consent for the

searches flowed from the license renewal application signed by Ms. Hall on which she checked a

box agreeing to a reasonable onsite inspection of her group child care home. Id. The district

court did not consider this application—it considered the document to be outside the pleadings—

       2
        Plaintiffs stipulated to the dismissal of Defendant Ismael Ahmed. R. 57, Dist. Ct. Op.
PID 1230, n.1.
       3
         The district court dismissed the claims against Corrigan and Gale relating to the two
investigations because plaintiffs failed to state a claim against them in their individual capacities.
R. 57, Dist. Ct. Op. PID 1249–50, 1271, n.6. On appeal, defendants again raise a defense for
Corrigan and Gale. Plaintiffs do not respond to this defense. However, reading the district court
opinion as having dismissed the claims against Corrigan and Gale and the plaintiffs as having
waived any objection to that dismissal, the issue of Gale and Corrigan’s liability is not before
this court. All that remain are the claims against defendants Sweet and Sinnamon for the
searches of plaintiffs’ home.
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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


and so concluded that the consent exception did not apply. Id. at 1259–60. The court also

rejected defendants’ argument that Michigan statutes and regulations gave them authority for the

searches. Id. at 1260.    The court held that the regulations defendants cited were inapplicable

because “[t]o the extent that on-site inspections are authorized, they are authorized for situations

and circumstances other than what occurred here.” Id.        Finally, the court found defendants’

argument that the closely-regulated business exception applies to group child care homes was

unpersuasive and unsupported by authority. Id. at 1261.

       Defendants, Sweet and Sinnamon, now appeal the district court’s denial of their motion

to dismiss based on qualified immunity.4

                                                 II

       The district court had federal question subject-matter jurisdiction over plaintiffs’ claims

for violations of the Fourth and Fourteenth Amendments of the U.S. Constitution, actionable

under the provisions of 42 U.S.C. § 1983. See 28 U.S.C. § 1331. Defendants’ appeal challenges

an interlocutory ruling that would not ordinarily be subject to immediate review. However, a

pretrial order denying qualified immunity is immediately appealable under the collateral order

doctrine insofar as it implicates only questions of law. Plumhoff v. Rickard, 134 S.Ct. 2012,

2018–19 (2014); McDonald v. Flake, 814 F.3d 804, 812–13 (6th Cir. 2016).

       This appeal boils down to three pure issues of law. First, defendants challenge the

district court’s determination that the 2008 license renewal application is not part of the

pleadings for purposes of the motion to dismiss. Second, when considering whether there was a

       4
          This is a consolidated appeal. Defendants first filed an interlocutory appeal of the
district court’s initial denial of qualified immunity for the Fourth Amendment claim, which this
court held in abeyance until the district court issued an order fully resolving the motion to
dismiss. The district court’s subsequent order again denied qualified immunity for the Fourth
Amendment claim, which was also appealed, and which this court consolidated with the first
appeal.
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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


constitutional violation, defendants appeal implicates the scope of consent provided by that

renewal application, on which Ms. Hall marked that she agreed to an investigation by DHHS

officials. See Florida v. Jimeno, 500 U.S. 248, 251 (1991) (scope of consent is a question of

objective reasonableness). Third, if necessary, this court considers whether the alleged wrongful

conduct by defendants violated clearly established rights at the time of the searches.

See Johnson v. Jones, 515 U.S. 304, 313 (1997) (there is appellate jurisdiction for “[t]he purely

legal issue of what law was ‘clearly established’”) (quoting Mitchell v. Forsyth, 472 U.S. 511,

530 (1985)).

       Because these three issues raise only pure questions of law, we have appellate jurisdiction

under the collateral order doctrine to consider the district court’s denial of qualified immunity.

See Plumhoff, 134 S.Ct. at 2018–19 (deciding a qualified immunity defense as to whether

conduct violated the Fourth Amendment or violated clearly established law is “a core

responsibility of appellate courts”).

                                                  A

       A district court’s denial of a motion to dismiss that raises a qualified immunity defense is

reviewed de novo. Johnson v. Moseley, 790 F.3d 649, 652 (6th Cir. 2015). The court accepts

the complaint’s factual allegations as true and construes the complaint in the light most favorable

to the plaintiff. Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005). To

survive a motion to dismiss, the complaint must “contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009); (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, “a legal

conclusion couched as a factual allegation” need not be accepted as true. Id. (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007)).



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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


       The threshold issue is whether the district court evaluated the motion to dismiss based on

a too-restrictive view of the pleadings. As part of her 2008 license renewal application, Ms. Hall

checked a box next to the following consent provision:

       [i]n order to permit proper determination of conformity with the rules, I give
       permission to the Michigan Department of Human Services to make a necessary
       and reasonable investigation of activities and standards of care, and to make an
       onsite inspection of my facility and services.
Brief for Defendants-Appellants, Exhibit 1, PID 81. The district court refused to consider the

license renewal application because it was “outside the pleadings” and not “central to the

complaint.” R. 57, Dist. Ct. Op. PID 1259–60. Defendants assert the district court should have

considered the application.

       As this court has held, when a court “is presented with a Rule 12(b)(6) motion, it may

consider the Complaint and any exhibits attached thereto, public records, items appearing in the

record of the case and exhibits attached to defendant’s motion to dismiss so long as they are

referred to in the Complaint and are central to the claims contained therein.” Bassett v. Nat’l

Collegiate Athletics Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).

       Here, the 2008 renewal application’s consent provision was referred to in and central to

the complaint, attached as an exhibit to defendants’ motion to dismiss, and fully quoted in

exhibits attached to the complaint. The 2008 renewal was Ms. Hall’s final renewal before her

license was revoked and covered the time period at issue here. Plaintiffs refer to renewal of her

license in 2008 throughout their complaint, including, in paragraph 75 of the complaint, a direct

reference to the consent provision taken from the transcript of the administrative hearing. This

specific reference to the application was central to plaintiffs’ claims that DHHS had an




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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


unconstitutional policy permitting searches of a group child care home in its entirety. 5 In support

of these claims, plaintiffs attached exhibits to their amended complaint, records from Ms. Hall’s

administrative hearing, directly quoting the application and confirming that Ms. Hall signed it.

Moreover, defendants attached a signed copy of the signed 2008 renewal application as an

exhibit to their motion to dismiss.

       Taking all of this together, and as conceded by plaintiffs’ counsel at oral argument, the

court can and should consider the 2008 renewal application and its language when evaluating de

novo the denial of the Rule 12(b)(6) motion to dismiss. See Bassett, 528 F.3d at 430; see also

MacDonald v. Thomas M. Cooley Law Sch., 724 F.3d 654, 657–58 (6th Cir. 2013) (deriving

facts, on a motion to dismiss, from five exhibits attached to the complaint); Northampton Rest.

Grp., Inc. v. FirstMerit Bank, N.A., 492 F. App’x 518, 522 (6th Cir. 2012) (considering copies of

contracts attached to defendant’s motion to dismiss that were referenced in and central to

plaintiff’s complaint). Thus, the district was permitted to consider the 2008 renewal application

when considering this motion and we may consider it now.

                                                 B

       1. Qualified Immunity Framework

       Government officials may raise qualified immunity as a defense to a § 1983 action. Once

raised, the plaintiff bears the ultimate burden of demonstrating that the defendant is not entitled

to qualified immunity. Rodriguez v. Passinault, 637 F.3d 675, 689 (6th Cir. 2011). We follow a

two-part inquiry to determine when a grant of qualified immunity is proper. Austin v. Redford

Twp. Police Dept., 690 F.3d 490, 496 (6th Cir. 2012) (citing Saucier v. Katz, 533 U.S. 194, 201

(2001)). To survive a qualified immunity defense, the facts as alleged must show that the

       5
          These claims were dismissed by the district court and are not revived here. See R. 57,
Dist. Ct. Op. PID 1247–50.
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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


defendant violated a constitutional right and that the right at issue was “clearly established” at

the time of the event. Pearson v. Callahan, 555 U.S. 223, 236 (2009). If either requirement is

unmet, qualified immunity shields the official from civil damages. Austin, 690 F.3d at 496

(citing Pearson, 555 U.S. at 236). The court may make the two necessary determinations in

either order, but need not reach both. Id.

       2. Whether a Constitutional Right was Violated

       We begin with the first step in the qualified immunity analysis: whether, as pleaded, the

2010 and 2011 investigations violated plaintiffs’ Fourth Amendment rights. The Fourth

Amendment protects against unreasonable searches and seizures. The Supreme Court has

recognized that “physical entry of the home is the chief evil against which the wording of the

Fourth Amendment is directed.” United States v. U.S. Dist. Ct., 407 U.S. 297, 313 (1972). For

that reason, “searches and seizures inside a home without a warrant are presumptively

unreasonable.” Groh v. Ramirez, 540 U.S. 551, 559 (2004). Thus, a warrantless search inside a

home by a government official violates the Fourth Amendment unless an exception to the

warrant requirement applies. See Andrews v. Hickman Cty., Tenn., 700 F.3d 845, 854, 858 (6th

Cir. 2012).

       The parties do not dispute that both the 2010 and 2011 investigations of the Halls’ home

were conducted without a warrant. Therefore, defendants must demonstrate that an exception to

the warrant requirement applied to each search in order to prevail on this prong of their qualified

immunity defense.

       Defendants assert that Ms. Hall consented to the searches of her entire home, which, if

true, would be enough to show there was no constitutional violation. It is well settled that “a




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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


person may waive his Fourth Amendment rights by consenting to a search.” United States v.

Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc).

       To support their position, defendants rely on Ms. Hall’s 2008 license renewal application

on which she agreed that:

       [i]n order to permit proper determination of conformity with the rules, I give
       permission to the Michigan Department of Human Services to make a necessary
       and reasonable investigation of activities and standards of care, and to make an
       onsite inspection of my facility and services.
Brief for Defendants-Appellants, Exhibit 1, PID 81.          Defendants argue that this signed

permission gave consent for the full scope of the 2010 and 2011 searches—including the search

of portions of plaintiffs’ home that were not approved for child care. Plaintiffs do not dispute

that Ms. Hall signed the application and checked the box giving consent to search or, as

conceded at oral argument, that it gave consent for searches of approved child care space. Their

challenge implicates the scope of consent, not the fact of consent.6

       The scope of a warrantless search is limited by the scope of consent. United States v.

Gant, 112 F.3d 239, 242 (6th Cir. 1997). The scope of consent is determined by objective

reasonableness. See United States v. Garrido-Santana, 360 F.3d 565, 576 (6th Cir. 2004)

(quoting Florida v. Jimeno, 500 U.S. 248, 251–52 (1991)). “The scope of a search is generally

defined by its expressed object.” Jimeno, 500 U.S. at 252 (citing United States v. Ross, 456 U.S.

758 (1982)). Thus, a search is not beyond the scope of consent when it was reasonable given its

expressed object. See id. (finding consent to search a car for drugs included consent to search a

       6
          In paragraph 78 of their amended complaint, plaintiffs allege, with regard to the
2011 search, that neither plaintiff “gave consent for this search” but instead “complied to this
search because under the licensing rules and regulations, failure to cooperate with the licensing
consultant during an investigation is a violation.” This allegation speaks only to the occasion of
the search—not the 2008 renewal application’s consent provision—and is rendered immaterial if
that consent provision provided consent for the search. We do not require both written and oral
consent for it to be effective. Cf. United States v. Frost, 521 F. App’x 484, 489 (6th Cir. 2013)
(oral consent to search was not rendered equivocal by refusal to sign written consent form).
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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


paper bag in the trunk); see also Garrido-Santana, 360 F.3d at 576 (search of a gas tank fell

within scope of suspect’s consent when he knew officers were searching his car for drugs).

       Reading the consent provision on Ms. Hall’s license renewal application in light of the

relevant regulatory scheme reveals that she agreed to a search of her entire home. The renewal

application provided consent for an inspection of Ms. Hall’s “facility” for the purpose of

ensuring “conformity with the rules.” Although neither “facility” nor “rules” was expressly

defined on the form, reading the language in context shows it was objectively reasonable to

understand the language as providing consent for the full scope of the challenged searches. As

conceded at oral argument, the “rules” were Michigan’s child care regulations and the

application was signed to renew Ms. Hall’s license to operate the “group child care home” she

ran out of her home. From this, it follows that the “facility” referenced on the form was the

“group child care home” for which she was renewing her license. Notably, the “rules” included

Michigan’s Child Care Licensing Act, which defined “group child care home” as a private

residence:

       (i) “Private home” means a private residence in which the licensee or registrant
       permanently resides as a member of the household, which residency is not
       contingent upon caring for children or employment by a licensed or approved
       child placing agency. Private home includes a full-time foster family home, a full-
       time foster family group home, a group child care home, or a family child care
       home, as follows:
       …
       (iv) “Group child care home” means a private home in which more than 6 but not
       more than 12 minor children are given care and supervision for periods of less
       than 24 hours a day unattended by a parent or legal guardian, except children
       related to an adult member of the family by blood, marriage, or adoption. Group
       child care home includes a home in which care is given to an unrelated minor
       child for more than 4 weeks during a calendar year.
Mich. Comp. Laws § 722.111(1)(i)(iv) (emphasis added). Thus, Ms. Hall’s consent to

inspections of her group child care “facility” reasonably provided consent to inspections of her

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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


entire residence. The two are one and the same. And plaintiffs make no claim that they

withdrew or limited the scope of this consent before or during either search.

       Nor did the two searches wander beyond their express object: to ensure conformity with

the ratio and capacity rules governed by Mich. Admin. Code R. 400.1908.              The searches

followed reports that Ms. Hall was violating these rules and hiding children in space not

approved for child care during inspections, and were limited to spaces where children might

actually be hidden. Thus, the searches fell fully within the scope of consent provided by the

2008 license renewal application signed by Ms. Hall.

       Finally, it cannot be said that the consent provision was invalid simply because agreeing

to its terms may have been a condition of receiving the child care operating license. We

recognize that “conditions can lawfully be imposed on the receipt of a benefit—conditions that

may include the surrender of a constitutional right, such as the right to be free from unreasonable

searches and seizures—provided the conditions are reasonable.” Burgess v. Lowery, 201 F.3d

942, 947 (7th Cir. 2000) (collecting cases); see also Knox Cty. Educ. Ass’n v. Knox Cty. Bd. of

Educ., 158 F.3d 361, 366–67, 384 (6th Cir. 1998) (finding no constitutional violation for

requirement that school employees agree to suspicionless urinalysis as a condition of job offer).

Here, Ms. Hall was operating a child care business out of a home under a license that, upon

renewal, asked her to agree to inspections intended to ensure her home complied with child

safety requirements.

       If this consent provision is read as a condition of the license, it is a reasonable one. For

one thing, the state has an overwhelming justification in ensuring child wellbeing is adequately

protected at the locations it licenses for child care.     For another, homeowners voluntarily

operating a child care business out of their home—knowingly subjecting that home to related



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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


regulatory oversight—have a reduced expectation of privacy there. Under these circumstances,

and weighing the state’s interest in protecting child safety against the privacy interest of child

care licensees, it is reasonable for these licenses to be conditioned on consent to investigations of

the houses where the child care homes are operated. Cf. Knox Cty. Educ. Ass’n, 158 F.3d at 379,

384 (drug testing of school employees was reasonable given the public’s “very strong” interest in

ensuring child safety through testing and because the employees’ privacy interest was

“significantly diminished by the level of regulation of their jobs and by the nature of the work

itself”).   Conditioning a group child care home license on consent to search that home is

distinguishable from unreasonably conditioning a license on consent to search areas unrelated to

that license and with no similarly compelling childcare interests at stake. See, e.g., Anobile v.

Pelligrino, 303 F3d 107, 121, 124–25 (2d. Cir. 2001) (state horse racing license was

impermissibly conditioned on consent to search dormitories). In sum, the condition here, that the

group child care home license would issue only if the state could inspect the home for regulatory

compliance, was a reasonable one. The consent to search was therefore effective.

        Accordingly, the court finds defendants’ conduct was not a violation of the Fourth

Amendment because Ms. Hall had consented to the searches and plaintiffs did not withdraw or

otherwise limit that consent.

        3. Whether the Right was Clearly Established

        However, even if we were to assume, arguendo, that the pleadings are sufficient to show

a constitutional violation; defendants remain entitled to qualified immunity unless plaintiffs have

also shown that defendants’ conduct violated a clearly established statutory or constitutional

right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiffs fail to do so.




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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


       A right is clearly established when “it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. “Qualified

immunity ordinarily applies unless the contours of the asserted right were sufficiently clear that

every reasonable official would have understood that what he was doing violated that right.”

Johnson v. Moseley, 790 F.3d 649, 654 (6th Cir. 2015) (citing Ashcroft v. al-Kidd, 563 U.S. 731

(2011)). Accordingly, qualified immunity “gives ample room for mistaken judgments by

protecting all but the plainly incompetent or those who knowingly violate the law.” Id. (quoting

Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal quotations omitted). Thus, qualified

immunity applies irrespective of whether the official’s error was a mistake of law or a mistake of

fact, or a mistake based on mixed questions of law and fact. Pearson, 555 U.S. at 231.

       The burden of showing that a right was clearly established at the time of an alleged injury

falls to the plaintiff. T.S. v. Doe, 742 F.3d 632, 635 (6th Cir. 2014). To determine “whether a

right was clearly established, we look first to decisions of the Supreme Court, then to our own

precedents, and then to decisions of other courts of appeal, to ask whether these precedents

‘placed the ... constitutional question beyond debate.’” Hearring v. Sliwowski, 712 F.3d 275, 280

(6th Cir. 2013) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)); see also Andrews,

700 F.3d at 853.

       Here, we consider the decision by DHHS licensing consultants, responsible for ensuring

child care homes are compliant with child safety rules, to conduct warrantless searches of

plaintiffs’ home following reports that Ms. Hall’s group child care home was over-ratio, over-

capacity, and that she was hiding children during inspections and knowing she had given consent

to a reasonable search of her facility. Plaintiffs have failed to show this discretionary conduct

violated a clearly established right.



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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


       Plaintiffs cite to Camara v. Municipal Court of City & County of San Francisco,

387 U.S. 523 (1967) to show that it has long been established that “administrative” searches

require a warrant. In Camara, the Court concluded that “administrative searches,” conducted

there to ensure compliance with the city’s housing code, were “significant intrusions upon the

interests protected by the Fourth Amendment.” 387 U.S. at 534. Thus, the Court held that the

Fourth Amendment warrant requirement applied to “administrative searches” of private

residences. Id. Plaintiffs point to several other cases derived from Camara’s holding that show

other “administrative searches” found to violate the Fourth Amendment. See Michigan v. Tyler,

436 U.S. 499 (1978) (entry of a burned building by firefighters and detectives to look for the

fire’s cause required a warrant); Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) (provisions

under OSHA permitting warrantless searches of a business to ensure compliance with workplace

safety rules were unconstitutional).

       Plaintiffs’ rely on these cases for the proposition that a government search of a home to

check for compliance with a regulatory code—no matter who searches or what the regulatory

code covers—is an “administrative search” that must comport with the Fourth Amendment

warrant requirement and that this is clearly established. In other words, plaintiffs argue that,

because the searches here were to ensure plaintiffs’ compliance with (child care) regulations,

they were “administrative” searches and therefore violated clearly established Fourth

Amendment rights because they lacked a warrant.

       This position is untenable. Qualified immunity requires plaintiffs “to plead facts making

out a violation of a constitutional right clearly established in a particularized sense. That is, the

right said to have been violated must be defined in light of the specific context of the case, not as

a broad general proposition.” Johnson v. Moseley, 790 F.3d at 654 (quoting Brosseau v. Haugen,



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Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


543 U.S. 194, 198 (2004)). Plaintiffs draw the right here in a much too generalized way and

ignore the specific context of the case. Camara and its progeny provide only a broad

generalization on which officials in defendants’ shoes could rely to discern whether their conduct

was unlawful: that the searches were related to suspected regulatory violations.              Showing

conduct violates a clearly established right requires more particularized context than plaintiffs

provide through their cited cases. See id. Indeed, this was the district court’s error as well.

        Most importantly, plaintiffs fail to consider the essential contextualizing fact that Ms.

Hall agreed to an onsite inspection of her facility and services in her licensing renewal. Even

assuming, arguendo, that this consent provision did not provide actual consent for the full scope

of the searches, it cannot be said it was objectively unreasonable for the DHHS employees to

believe it did. While the form did not explicitly define “facility” anywhere, the relevant

regulations defined private home and group child care home as one and the same and regulated

space not approved for child care,7 making it reasonable for the DHHS employees to believe Hall

had given consent for a search of the entire home by agreeing to a search of her “facility” in

order “to ensure conformity with the rules.” Indeed, defendant Sweet indicated that this was her

understanding of the provision when, during the administrative proceedings against Ms. Hall, she

said that “I believe . . . it states on the [license] application that they will give us access to their

whole entire home.” R. 43, Amd. Complt., PID 629. In light of the relevant regulations and the

provision’s language, a belief that the form gave consent for the full scope of both searches is a

reasonable one.




        7
         See, e.g., Mich. Admin. Code R. 400.1944 (requiring smoke detectors installed and
maintained “on each floor of the home”); Mich. Admin. Code R. 400.1935 (regulating the
storage and sale of firearms on the premises).
                                                 - 16 -
Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


       In short, because of the consent provision from the license renewal application, it cannot

be said that defendants Sweet and Sinnamon were plainly incompetent or in knowing violation of

the law when they searched space in the home not approved for child care. Theirs was precisely

the kind of reasonable discretionary conduct—even if based on a mistaken understanding of fact

or law—that the doctrine of qualified immunity protects. See, e.g., Pearson, 555 U.S. at 231.

       Plaintiffs’ argument that the law was clearly established is further undermined by the

close resemblance of the investigations here to that at issue in Andrews v. Hickman Cty., Tenn.,

700 F.3d 845, 854, 858 (6th Cir. 2012). Andrews involved the warrantless search of a house in

2008, conducted by social workers investigating allegations of child abuse. Id. at 850. In

response to a complaint, the social workers entered the home and conducted a walk-through,

checking for food and ensuring any weapons were properly stored. Id. at 850–51. They did not

find any violations. Id. at 851. The court, considering a qualified immunity defense, held the

entry and search violated the Fourth Amendment, but went on to consider whether it was clearly

established at the time whether the Fourth Amendment warrant requirement applied to “social

workers carrying out investigations regarding the welfare of children.” Id. at 860. The court

held it was not. Id. Since then, this circuit has continued to hold that it was not clearly

established that the warrant requirement applied to social workers conducting similar

investigations prior to the Andrews decision, at least through 2011. See Brent v. Wenk , 555 F.

App’x 519 (6th Cir. 2014) (holding a social worker’s 2010 investigation relating to child

wellbeing did not violate clearly established law); Barber v. Miller, 809 F.3d 840 (6th Cir. 2015)




                                              - 17 -
Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


(a social worker’s 2011 investigation relating to child wellbeing did not violate clearly

established law).8

       In light of both Andrews and Camara, it cannot be said that defendants violated clearly

established law. At the time of the challenged searches, either one of these competing Fourth

Amendment case lines potentially applied—defendants’ conduct arguably resembled that of the

social workers granted qualified immunity in Andrews as much as that of the administrative

searchers in Camara. And no decision of this court or the Supreme Court had addressed, even

generally, whether a warrant was required for the search of a home out of which a state-regulated

day care was operated. Given this lack of certainty in Fourth Amendment’s applicability to the

circumstances faced by defendants, reasonable officials in their shoes would not have been on

clear notice whether their conduct violated the law.

       Plaintiffs attempt to undermine any similarity of the facts here to those in Andrews by

citing to a 2004 opinion from the Western District of Michigan which had held, prior to

Andrews, that social workers conducting a warrantless search of a home violated the Fourth

Amendment. O’Donnel v. Brown, 335 F. Supp. 2d 787, 827 (W.D. Mich. 2004) (noting that

“government officers [including social workers] cannot enter a home without either prior court

approval, consent, or exigent circumstances”). Plaintiffs point out that this opinion was from the

same district court where the instant case was filed and therefore it should have put the




       8
          Another case of this circuit also dealt with an alleged Fourth Amendment violation by
social workers investigating child welfare. Kovacic v. Cuyahoga Cty. Dep’t of Children
& Family Servs., 724 F.3d 687 (6th Cir. 2013). Kovacic considered the 2002 removal of
children from a home by social workers without a warrant. Id. at 692. The court found that
seizures of children by social workers, if not searches related to them, violated clearly
established Fourth Amendment rights. Id. Sweet and Sinnamon did not remove any children, so
this case is irrelevant here.
                                              - 18 -
Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


defendants on notice that their conduct was unlawful to the extent it resembled child welfare

investigations by social workers.

       Plaintiffs find support for their position—that the district court decision is enough on its

own to clearly establish law in that district—in a footnote from the Andrews opinion. In finding

there was no precedent in either the Supreme Court or the Sixth Circuit clearly establishing

whether social workers were required to comport with the Fourth Amendment, the Andrews

court used a footnote to dispose of a lower court decision to the contrary. Andrews, 700 F.3d at

862, n.7. That decision came out of the United States District Court for the Northern District of

Ohio and held not only that social workers were constrained by the Fourth Amendment, but that

this right was clearly established. Id. (citing Walsh v. Erie Cnty. Dep’t of Job & Family Serv.,

240 F.Supp. 2d 731 (N.D. Ohio 2003)). However, the Andrews court said this lower court

opinion was not enough for the purposes of the case before it because “[t]he instant case was

heard in the Middle District of Tennessee” and therefore the Walsh decision, out of the Northern

District of Ohio, was “not sufficient to put the State Defendants on notice that the right was

clearly established.” Andrews, 700 F.3d at 862, n.7. In the same footnote, the Andrews court

seemed to imply that—had the earlier district court been the same one out of which the instant

appeal arose—it might have been enough to put the defendants on notice. Id. (“to find a clearly

established right, absent extraordinary circumstances, a district court looks to ‘binding precedent

by the Supreme Court, its court of appeals or itself’”) (quoting Ohio Civil Serv. Employees Ass’n

v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1989) (emphasis added).

       Plaintiffs read this footnote too broadly. A single district court opinion is not enough to

pronounce a right is clearly established for purposes of qualified immunity. While a district




                                              - 19 -
Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


court opinion may be persuasive in showing there is a clearly established right—perhaps by

exposing a trend in non-precedential case law—it is not controlling on its own.9

       Further, even were we to consider O’Donnel, the proposition for which plaintiffs cite the

case was extinguished by this circuit’s directly contrary holding in Andrews. It cannot be said

O’Donnel placed a constitutional question “beyond debate” when later, in Andrews, this circuit

found the very same question did not have a clear answer. In short, decisions from this court

stand for the proposition that, between 2008 and 2011, it was not clearly established in any

district of this circuit that the Fourth Amendment applied to social workers conducting a search

of a home relating to the wellbeing of children.       See Barber, 809 F.3d at 846–47.        This

uncertainty in whether the Fourth Amendment applies to investigations related to child wellbeing

contributes to a finding that defendants were not on clear notice whether their conduct violated

the law.



       9
          The same is true in other circuits. See, e.g., Estate of Escobedo v. Bender, 600 F.3d
770, 781 (7th Cir. 2010) (“to determine whether a right is clearly established at the time of the
violation, we look first to controlling precedent on the issue from the Supreme Court and to
precedent from this Circuit. In the absence of controlling precedent, we must broaden our survey
to include all relevant case law in order to determine whether there was such a clear trend in the
caselaw that we can say with fair assurance that the recognition of the right by a controlling
precedent was merely a question of time”) (internal quotations omitted) (emphasis added);
Cortez v. McCauley, 478 F.3d 1108, 1114–15 (10th Cir. 2007) (“for a right to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must have found the law to be as the plaintiff
maintains”) (internal quotations omitted). Indeed, in several circuits, district court opinions are
not considered whatsoever in determining clearly established law. Moore v. Pederson, 806 F.3d
1036, 1047 (11th Cir. 2015) (“to determine qualified immunity, an Eleventh Circuit court looks
to decisions of the United States Supreme Court, the United States Court of Appeals for the
Eleventh Circuit, and the highest court of the pertinent state”) (internal quotations omitted);
Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006) (“When neither the Supreme Court nor this
court has recognized a right, the law of our sister circuits and the holdings of district courts
cannot act to render that right clearly established within the Second Circuit”); but see Tarabochia
v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014) (“[i]n the absence of binding precedent clearly
establishing the constitutional right, we look to whatever decisional law is available including
decisions of state courts, other circuits, and district courts”) (internal quotations removed).
                                              - 20 -
Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


       In sum, considering the circumstances of the two searches as pleaded in light of then-

established law, it was not clearly established that Sweet and Sinnamon were violating the

Fourth Amendment when they searched plaintiffs’ home without a warrant in 2010 and 2011.

A reasonable investigator “faced with the circumstances of this case could not ascertain from

clearly established law the legality of her conduct.” Andrews, 700 F.3d at 862. Plaintiffs have

therefore failed in their burden to establish in the pleadings that defendants violated a clearly

established right. Accordingly, defendants are entitled to qualified immunity.

                                               VI

       For the reasons above, we REVERSE the district court’s order denying Sweet and

Sinnamon’s motion to dismiss based on the qualified immunity defense.




                                              - 21 -
Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


       HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.

       I agree with the majority’s decision to reverse the district court’s order denying Sweet

and Sinnamon’s motion to dismiss with regard to the first search. Sweet and Sinnamon were

entitled to qualified immunity for this search because it was objectively reasonable for Sweet to

construe Hall’s consent as encompassing the first challenged search. As to the second search, I

disagree with the majority’s conclusions that the search was reasonable and that the law was not

clearly established at the time of the searches.

       The majority correctly observes that Michigan has a strong interest in ensuring child

safety in child care facilities, and I agree that the first search—conducted pursuant to a report

that Hall was hiding children in rooms unlicensed for child care—was permissible. It was

objectively reasonable for Sweet to believe that Hall’s consent to an “onsite inspection of [her]

facility” to determine “conformity with the rules” authorized the search for hidden children.

       I disagree with the majority, however, insofar as it implies that the second search was

authorized under the license renewal application’s consent provision because of Hall’s past

violation of Michigan’s child care rules.          Assuming arguendo that the majority correctly

interprets the consent provision to apply by its terms to the entire house, the second search fails

to meet the provision’s own reasonable and necessary standard. Under the majority’s reading of

the provision, Hall’s February 18, 2010, violation justified a warrantless, on-demand search of

the entirety of Hall’s private residence over a year later, on May 24, 2011—even though there

was no allegation that Hall was hiding children at this time. The implication of this broad

reading is that Hall’s initial violation of the rules would justify any subsequent warrantless

search for hidden children, no matter how removed from the original complaint. As “searches

and seizures inside a home without a warrant are presumptively unreasonable,” Groh v. Ramirez,



                                                   - 22 -
Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


540 U.S. 551, 559 (2004), such a broad construction of the consent provision is objectively

unreasonable.

       Unlike the first search, the second search followed an anonymous complaint that Hall

was operating her group child care home without an assistant caregiver; the complaint did not

include an allegation that Hall was hiding children or was out of ratio. Upon entering the child

care home, Sweet and Sinnamon observed that, contrary to the complaint, there was an assistant

caregiver present. Despite Hall’s apparent compliance with the rules, Sweet and Sinnamon

conducted a second inspection of the Hall family’s private residence areas searching for hidden

children. The majority’s approval of this search based on the consent provision suggests that the

consent provision authorizes DHHS employees to conduct warrantless searches of the private

areas of a child care home so long as a licensee has ever been in violation of the licensing rules.

In other words, because Hall was once found to be over-capacity, DHHS employees were free to

search her private residence areas whenever they wanted. This construction of the consent

provision is not reasonable. Thus, the warrantless search cannot be justified under the consent

provision, and was not reasonable under the Fourth Amendment.

       Further, I disagree with the majority’s conclusion that the law was not clearly established

as to whether social workers are subject to the Fourth Amendment’s warrant requirements. The

majority correctly identifies Andrews as the controlling precedent on this issue. There, this court

reaffirmed that to determine whether there was a clearly established right, “a district court looks

to binding precedent by the Supreme Court, its court of appeals or itself.” Andrews v. Hickman

Cty., Tenn., 700 F.3d 845, 862 n.7 (6th Cir. 2012). “[W]e look first to decisions of the Supreme

Court, then to our own decisions and those of other courts within the circuit, and then to

decisions of other Courts of Appeal.” Id. at 853. As the majority notes, the Western District of



                                              - 23 -
Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


Michigan, where this case originated, held in 2004 that “the Fourth Amendment applies to

[social workers], as it does to all other officers and agents of the state[.] . . . There is . . . no social

worker exception to the strictures of the Fourth Amendment.’” O’Donnel v. Brown, 335 F.

Supp. 2d 787, 802 (W.D. Mich. 2004) (internal quotation marks omitted). Since O’Donnel

predated the challenged searches, it is sufficient to create a clearly established constitutional right

in this context. This is especially true considering many other circuits had already decided that

social workers are not exempt from the Fourth Amendment. See, e.g., Gates v. Texas Dep’t of

Protective & Regulatory Servs., 537 F.3d 404, 420 (5th Cir. 2008) (“We begin by noting that it is

well established in this circuit that the Fourth Amendment regulates social workers’ civil

investigations.”); Doe v. Heck, 327 F.3d 492, 509 (7th Cir. 2003) (“Thus, the strictures of the

Fourth Amendment apply to child welfare workers, as well as all other governmental

employees.”); Roska v. Peterson, 328 F.3d 1230, 1242 (10th Cir. 2003) (“Measured against this

parental interest, the state’s interest in protecting children does not excuse social workers from

the warrant requirement of the Fourth Amendment.”); Calabretta v. Floyd, 189 F.3d 808, 816

(9th Cir. 1999) (“[Precedent] does not hold that the social worker may enter the home despite the

absence of consent or exigency.”); Lenz v. Winburn, 51 F.3d 1540 (11th Cir. 1995); Wildauer v.

Frederick Cty., 993 F.2d 369, 372 (4th Cir. 1993) (applying the Fourth Amendment to social

workers but adding that lesser scrutiny applies to non-criminal “investigative home visits”). This

large body of circuit authority, coupled with at least one case from the Western District of

Michigan, clearly established at the time of the searches that social workers are subject to the

Fourth Amendment’s strictures.




                                                   - 24 -
Case Nos. 14-2595/15-2326, Angie Hall, et al. v. Katrice Sweet, et al.


       Because the second search violated Hall’s clearly established Fourth Amendment rights, I

would affirm the district court’s denial of qualified immunity as to that search and remand for

further proceedings.




                                              - 25 -
