                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 11a0625n.06
                                                                                              FILED
                                        Nos. 09-3679, 09-3799                            Aug 26, 2011
                           UNITED STATES COURT OF APPEALS                          LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


JOSE RODRIGUEZ; CARMEN RODRIGUEZ,                           )
                                                            )
        Plaintiffs-Appellees (09-3679),                     )
                                                            )
KAREN PALMER,                                               )
                                                            )
        Plaintiff/Cross-Appellant (09-3799),                )       ON APPEAL FROM THE
                                                            )       UNITED STATES DISTRICT
                v.                                          )       COURT FOR THE NORTHERN
                                                            )       DISTRICT OF OHIO
CITY OF CLEVELAND; RASCO DAVIS; GERALD                      )
HALL; MICHAEL MCGRATH; ROBERT MILLER,                       )
                                                            )
        Defendants-Appellants (09-3679);                    )
        Defendants/Cross-Appellees (09-3799).               )
                                                            )



BEFORE: NORRIS, ROGERS, WHITE, Circuit Judges.

        ROGERS, Circuit Judge. After Plaintiff-Appellee Jose Rodriguez was acquitted on charges

of receiving stolen property and possession of criminal tools in state court, he brought this 42 U.S.C.

§ 1983 action against several police officers, the chief of police in his official capacity, and the City

of Cleveland. Rodriguez advances a number of constitutional claims premised on the search of his

place of business, seizure of business and personal property, and his two arrests in July 2006; his

subsequent state criminal proceedings; and the defendants’ alleged retaliation for his filing of this

lawsuit. The district court denied the defendants qualified immunity as to all of Rodriguez’s

constitutional claims, and the defendants now appeal that ruling. For the reasons that follow, we
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


reverse the district court’s decision with respect to all of the claims on appeal, as the defendants are

entitled to qualified immunity with respect to those claims.

          Plaintiff Karen Palmer, who owned the towing business that Cleveland police officers

searched—and from which they seized property—in July 2006, sued the same defendants as

Rodriguez, alleging violations of her Fourth Amendment rights. The district court correctly granted

summary judgment for defendants, on statute of limitations grounds, as to Palmer’s constitutional

claims.

                                                    I. Facts

          Because this denial of qualified immunity comes to us on interlocutory appeal, we must take

the facts as assumed by the district court. Johnson v. Jones, 515 U.S. 304, 319-20 (1995). Our

jurisdiction is limited to considering the legal issues raised. Estate of Carter v. City of Detroit, 408

F.3d 305, 309 (6th Cir. 2005). The district court recounted the facts as follows:1

                  Plaintiff Jose Rodriguez (“Rodriguez”), along with his wife, Carmen
          Rodriguez, has filed a 42 U.S.C. § 1983 lawsuit against Defendants City of
          Cleveland, former Lieutenant Robert Miller, Detectives Gerald Hall, Rasco Davis,
          and Brian Curry, Chief of Police Michael McGrath, and John Does 1-5. This suit
          arises out of the actions taken by the Defendants in July 2006 and thereafter. Plaintiff
          Karen Palmer, who sold or was in the process of selling certain property to Rodriguez
          that was allegedly subject to the Defendants’ actions, is also a party to this case.2
                  Plaintiff Rodriguez entered into a series of agreements in October 2004,
          December 2005, and January 2006 with Plaintiff Karen Palmer, the fiduciary of the




          1
              Footnotes 2-15 are part of the district court’s recitation of the facts.
          2
              The Rodriguez and Palmer cases were consolidated for trial on February 11, 2009.

                                                       -2-
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


       estate of Eugene Palmer.3 Under their agreements, Palmer was to transfer to
       Rodriguez the real estate, inventory, and equipment comprising M & M Auto Body
       and Towing (“M & M”), located at 7010 Harvard Avenue, Cleveland, Ohio. Starting
       from January 2006, Rodriguez operated M & M and paid all of the expenses
       associated with the business. The sale documents and lease agreement stated,
       however, that the completion of the sale of M & M and the other assets could take
       up to a year from the date that the documents were signed (January 21, 2006) or at
       least until December 31, 2006. Further, according to the Plaintiffs, they had an
       understanding that Palmer had full ownership of the [sic] all of the assets included
       in the sale documents, including M & M itself, until Rodriguez finished paying for
       these assets.
               On July 7, 2006, members of the Cleveland Police Department (“CPD”)4
       arrived at M & M and arrested Plaintiff Rodriguez based solely upon information
       provided by an anonymous informant that Rodriguez had received stolen property
       and possessed criminal tools. According to Defendant Hall, in the morning of July
       7, 2006, he received a call at the CPD’s Auto Theft Investigation Unit from
       “someone saying he had information about a stolen [white] dump truck [in the back
       corner of the side lot next to the M & M building] . . . . He [also] said the dump truck
       didn’t run, and had been towed to M & M using an M & M tow truck.” This
       individual stated that he had been a former, long-time employee of M & M. The
       informant did not leave his name or contact information; Hall gave the informant his
       cell phone number and told him to call if he had any other information.
               Hall told Miller about the tip and, later in the day, Hall, Miller, and Detective
       Rasco Davis went to M & M to conduct a § 601.15 inspection.5 The officers did not


       3
        Palmer entered into the following agreements with Rodriguez with respect to the sale of M
& M: (1) Letter of Intent dated December 21, 2005; (2) Purchase Agreement dated January 21, 2006;
(3) Asset Purchase Agreement dated January 21, 2006; and (4) Lease Agreement.
       4
        Specifically, members of the CPD’s Auto Theft Investigation Unit (the “Unit”), which
consisted of Lieutenant Robert Miller (retired in September 2007), senior Detectives Joseph Ferenec
and Gerald Hall, and Detective Rasco Davis. According to Miller, Detective Brian Curry joined the
Unit on July 31, 2006 and was therefore not involved in the Rodriguez matter.
       5
       A 601.15 inspection is conducted pursuant to Cleveland Codified Ordinance § 601.15. This
Ordinance states:
      (a) For the purpose of locating stolen motor vehicles and/or stolen motor vehicle
      parts, the Chief of Police, or his authorized representative, may inspect any motor
      vehicle, as defined in RC 4501.01 and may inspect any motor vehicle part that has

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Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


       have a warrant. When the officers arrived at M & M, they told Plaintiff Rodriguez
       that they were there to do an inspection and he unlocked the gate to the lot and
       showed them the shop floor. The officers requested a zone car with uniformed CPD
       officers apparently to assist in running the VIN numbers of the vehicles. While
       Davis and Hall were outside inspecting vehicles, Hall saw a vehicle matching the
       description provided to him by the anonymous informant—a 2004 Ford Carry-All
       with Vin # 1FDWF37P34EB32882. According to Hall, this vehicle had cut marks
       in places where large equipment would normally be, including the plow and the
       hydraulic lift; the dump truck’s steering column was also missing. The officers ran
       the vehicle’s VIN number and discovered that it had been reported stolen from
       Medina in 2006. After Hall told Rodriguez that the vehicle had been reported stolen,
       a woman working at M & M allegedly provided them with a receipt for $ 2,200.00




       been marked with an identifying number by the manufacturer, situated in the City of
       Cleveland in any public garage, community garage, storage garage, service garage,
       repair shop, parking lot, auto sales lot, vehicle leasing or rental lot, motor vehicle
       salvage facility, scrap metal processing facility, auto wrecking yard, junk yard, or
       other similar establishment, and may inspect the title, registration, vehicle
       identification number, or license plates of the vehicle in order to establish the rightful
       ownership or possession of the vehicle or vehicle part.

       (b) For the purpose of locating a stolen vehicle, the Chief of Police, or his authorized
       representative, may inspect implements of husbandry and construction equipment in
       places described in division (a) of this section.

       (c) Whenever possible, inspections conducted pursuant to division (a) or (b) of this
       section shall be conducted at a time and in a manner so as to minimize any
       interference with, or delay of, business operations.

       (d) No person, without privilege to do so and with purpose to prevent, obstruct, or
       delay the performance of a police officer from inspecting any place described in
       division (a), shall do any act which hampers or impedes a police officer from making
       an inspection pursuant to this Section.

       Whoever violates this Section is guilty of obstructing vehicle inspections, a
       misdemeanor of the second degree.

                                                 -4-
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


       of the $ 3,200.00 purchase price of the vehicle that was suspected of being stolen.6
       At this point, Hall arrested Rodriguez for being in possession of the stolen dump
       truck and criminal tools (tools that Hall believed had been used to disassemble the
       truck)7 and requested that the truck be towed.
                The stolen property charge alleged that, on July 7, 2006, Rodriguez “did
       receive, retain, or dispose of property of another, knowing and having reasonable
       cause to believe it had been obtained through commission of a theft offense, to wit:
       a 2004 Ford F-350 white on white dump truck with a VIN # of
       1FDWF37P34EB32882.”
                In addition to the charge mentioned above, one count of the arrest
       warrant—issued on July 9, 2006—alleged that Plaintiff Rodriguez “did possess or
       have under his control any substance, device, instrument, or article, with purpose to
       use it criminally, to wit: ten ton floor jack, blue tool chest with tools, welding torch
       set on dolly.” Another count alleged that Rodriguez, on July 7, 2006, “did possess
       or have under his control, any substance, device, instrument, or article with purpose
       to use it criminally, to wit: a 1995 Freightliner flatbed truck bearing Ohio License
       Plate No. PFA5423 and bearing the VIN # of 1FV6GFAC6WH923275.” According
       to Rodriguez, the latter criminal allegation was never pursued.
                While at M & M on July 7, 2006, Defendant Miller apparently noticed that
       the M & M tow trucks that were returning back to M & M along Harvard Avenue did
       not have proper markings on the side and did not have tow truck license plates on the
       bumpers in violation of Cleveland Codified Ordinance § 677A.10.8 Miller instructed


       6
         Hall states that this receipt, in the form of an M & M repair order, was handwritten, showed
a date of 4/6/06, the name “Brian Miller,” the phone number “440-521-4131,” and “something about
money paid and a balance owed on 4/5/06.” Hall also states that the signature was illegible, there
was no vehicle listed on the receipt, and that, following an investigation, he was unable to find any
information on Brian Miller.
       7
         While still at M & M after arresting Rodriguez on July 7, 2006, Hall indicates that he got
a call on his cell phone from the anonymous informant, who told Hall that he was across the street
from M & M and asked if Hall could see him. Hall states that he could not see the informant. The
informant insisted that one of the M & M tow trucks had a stolen engine and Hall passed this
information on to Miller. Based solely on this information, Hall subsequently got Miller’s
permission to check the VIN numbers of all of the engines in the M & M trucks.
       8
           This Ordinance states:

       Any person engaged in the business of offering towing services shall have imprinted

                                                -5-
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Rodriguez v. City of Cleveland


       Defendant Davis to check each truck for violations of this Ordinance. According to
       Davis, none of the tow trucks he saw were licensed by the City of Cleveland or had
       the required license plates displayed on the bumper. After Davis conveyed this
       information to Miller, Miller authorized the impounding of these tow trucks.
               On July 10, 2006, after being in jail for three days, Rodriguez appeared before
       a Cleveland Municipal Court judge, posted $15,000 for bail, and was released. Three
       days later, on July 13, 2006, Rodriguez states that Detective Miller requested that
       Rodriguez meet with him at M & M.9 At that time, CPD officers “arrived with
       members of the television media who had been briefed on alleged criminal practices
       within the towing company business, and who then filmed as Plaintiff [Rodriguez]
       was arrested and escorted from [M & M], and collapsed, unconscious, on the
       ground.”10 The basis for Rodriguez’s second arrest was the allegation that an engine
       in an M & M-owned vehicle that was confiscated from Rodriguez on July 7, 2006
       was stolen.11 While at M & M, the CPD confiscated M & M’s remaining tow



       on both sides of any vehicle used as a tow truck, slide or tilt-bed carrier, or car hauler,
       the name, address and telephone number of the person owning such vehicle. The
       name shall be printed in letters at least three inches high and not less than
       three-eighths of an inch wide, while the address, place and phone number shall be in
       letters two inches high and not less than three-eighths of an inch wide. Lettering
       shall be done in color which will contrast sharply with the background upon which
       it is painted and shall be placed in such position as to be easily seen by anyone
       wishing to identify the vehicle. Markings shall be kept clear and distinct at all times.

Anyone who violates this provision “shall be guilty of a misdemeanor of the second degree and shall
be fined not more than seven hundred fifty dollars ($ 750.00) or imprisoned not more than ninety
days, or both. Any such violation shall constitute a separate offense on each consecutive day
continued.”
       9
         On July 13, 2006, Detective Hall was “processing M & M tow trucks,” at the impound lot
with Detectives Davis and Ferenec and other individuals who are not defendants in this case. Hall
discovered that the engine in a tow truck with a VIN number ending in -13707 was apparently stolen.
Hall called Detective Miller and informed him about the stolen engine and Miller authorized Hall
to arrest Rodriguez. After the officers arrived at M & M, Hall arrested Rodriguez.
       10
            The Defendants state that they did not notify the news media about the arrest.
       11
          On July 14, 2006, Rodriguez’s attorney, Edward La Rue, sent a letter to Miller informing
him, in the interest of full cooperation, that “to truck # 400 . . . may have an engine of questionable

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Rodriguez v. City of Cleveland


       trucks,12 because, according to Defendant Hall, they did not have the required City
       of Cleveland towing licenses on the bumpers, thereby permanently shutting down M
       & M.13 Either Rodriguez or M & M held title to the confiscated trucks. In effect, the
       Defendants confiscated M & M’s most important business assets, though these tow
       trucks were owned by M & M.
               The Defendants’ confiscation of M & M’s tow trucks spelled disaster for M
       & M. Before the confiscation, AAA had a towing services contract with M & M.
       Following the confiscation, on July 14, 2006, AAA rescinded its towing contract
       with M & M due to M & M’s failure to perform. Also on this date, Plaintiff
       Rodriguez’s employer, Gibraltar Strip Steel, Inc. (“Gibraltar”), placed him on unpaid
       personal leave pending the disposition of the charges against him. Gibraltar
       ultimately terminated Rodriguez’s employment on November 17, 2006.
               Plaintiff Rodriguez was released from jail following his second arrest on July
       14, 2006 without any criminal charges being filed against him. On this date,
       Defendant Davis issued summons for misdemeanor citations on nine of Rodriguez’s
       tow trucks for violations of Ordinance § 677A.02. Rodriguez states that M & M’s
       PUCO permit that he obtained on June 15, 2006 negated the need for local tow truck
       licenses.
               On July 20, 2006, Plaintiff Rodriguez was indicted for criminal allegations
       arising out of his July 7, 2006 arrest; the case was assigned Cuyahoga County
       Criminal Case No. CR-483633. A “property seized” list attached to and incorporated
       within the indictment indicated that the allegedly stolen vehicle bore the VIN #
       1FDAF56P04EA38188. The fact that Rodriguez owned and had title to this vehicle
       is undisputed. As a result, at trial, the State of Ohio amended the indictment,
       replacing this vehicle with the previously mentioned 2004 Ford dump truck bearing
       VIN # 1FDWF37P34EB32882. However, Cleveland never towed or confiscated this
       dump truck from M & M.




origin.”
       12
          A CPD inspection inventory list compiled on July 27, 2006 indicated that five tow truck
vehicles were seized from M & M on July 7, 2006. These vehicles were never reported stolen and
were titled to either M & M or Rodriguez. The list also revealed the fact that no vehicle fitting the
description of the allegedly stolen 2004 Ford dump truck was ever confiscated from M & M.
       13
          Miller authorized Hall to process these trucks for stolen parts during impoundment. On
July 14, 2006, Hall apparently discovered that the engine of one of the trucks had its serial number
ground off.

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Rodriguez v. City of Cleveland


                On November 2, 2006, Plaintiff Rodriguez was indicted for a second time for
       allegations arising out of his July 13, 2006 arrest; this case was assigned Cuyahoga
       County Criminal Case No. CR-487888. The list of property seized accompanying
       the indictment indicated that only one item had been seized from Rodriguez: a 2002
       Ford F-450 Superduty tow truck, with VIN # 1FDAFS6F7YED33463. Rodriguez
       was also indicted in the second case for possession of criminal tools “to wit: engine
       parts” and other articles intended for use in the commission of a felony. At trial,
       Defendant Miller admitted that the indictment was incorrect and that the 2002 Ford
       tow truck was not stolen, although its engine was stolen. Through counsel, on
       August 28, 2006, Plaintiff Rodriguez requested the return of all vehicles not subject
       to criminal allegations. A Cuyahoga County Court of Common Pleas judge granted
       this motion on August 29, 2009 [sic], although Rodriguez’s property and vehicles
       were apparently not returned to him until February 27, 2007.14
                On September 10, 2006, Plaintiff Rodriguez and Plaintiff Palmer executed
       a Termination and Mutual Release Agreement resulting in the cancellation of the
       other agreements concerning the sale, lease, and purchase of M & M and its assets.
       Palmer entered into this agreement after apparently learning of Rodriguez’s arrests
       and the seizure of M & M’s assets from the news media,15 because she understood
       that Rodriguez would be unable to satisfy his contractual obligations, including
       continuing to pay rent and complete the purchase of M & M, and because she wanted
       to get M & M’s assets back into her possession.
                On January 30, 2007, after several days of trial, the presiding Cuyahoga
       County Common Pleas Judge dismissed the felony charges against Plaintiff
       Rodriguez pursuant to Ohio Rule of Criminal Procedure 29. The Judge also ordered
       that all property belonging to M & M and Rodriguez be immediately returned to
       Rodriguez. According to Plaintiff Palmer, after the assets were eventually released,


       14
          The Defendants allege that Rodriguez could have regained possession of the tow trucks
pursuant to Cleveland Codified Ordinance § 405.05 if he (1) paid a nominal towing charge and
storage fee and any outstanding fines in connection with the violation; (2) posted a bond, whereupon
the vehicles would be released, on the condition that he would appear in municipal court to answer
the violation; or (3) requested a probable cause hearing for the following business day, whereupon
the vehicles would be released upon a finding of no probable cause. According to the Defendants,
Rodriguez did not take any of these actions. This Ordinance does not pertain to vehicles towed from
private property, however.
       15
         According to Palmer, no one from the CPD ever contacted her to investigate whether she
owned any of the property that the CPD had seized from M & M or to ask about her contractual
relationship with Rodriguez.

                                               -8-
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


       she liquidated them to the best of her ability, although she had to sell them for a
       lower price than that originally offered by Rodriguez.

Rodriguez v. City of Cleveland, 619 F. Supp. 2d 461, 468-472 (N.D. Ohio 2009) (citations omitted)

(footnotes in original).

                                      II. Proceedings below

A. Rodriguez’s civil rights action

       On July 1, 2008, Rodriguez filed a complaint against the City of Cleveland, Lieutenant

Miller, Detectives Hall and Davis, and other named defendants, in the Court of Common Pleas for

Cuyahoga County, Ohio, alleging, among other 42 U.S.C. § 1983 claims, illegal search and seizure,

malicious prosecution and continued unlawful detention, and municipal liability for failure to train.

Rodriguez also brought a number of state-law claims.

       In August 2008, the defendants removed the action to federal district court. In April 2009,

the district court granted Rodriguez leave to file a Third Amended Complaint—the complaint at the

heart of this appeal. In that complaint, Rodriguez asserted the following claims: (1) Count I:

unreasonable searches and seizures of person and property, in violation of the Fourth Amendment;

(2) Count II: failure to intercede/intervene; (3) Count III: conscience-shocking and outrageous

conduct, in violation of the Fourteenth Amendment; (4) Count IV: false arrest and false

imprisonment, in violation of the Fourth Amendment; (5) Count V: intentional omission of

exculpatory information to secure indictments, in violation of the Fourteenth Amendment Due

Process Clause; (6) Count VI: absence of qualified immunity and good faith; (7) Count VII:

municipal liability for failure to train and supervise police officers in the proper execution of an

                                                -9-
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


administrative inspection; (8) Count VIII: municipal liability for failure to investigate and discipline

police officers/ratification of illegal actions; (9) Count IX: retaliation and harassment, in violation

of the First Amendment; (10) Count X: malicious prosecution and continued unlawful detention

without probable cause, in violation of the Fourth Amendment; (11) Count XI: supervisory liability

for Fourth Amendment violations; and various state-law claims.

         Following preliminary discovery, Rodriguez moved for summary judgment on his claim for

unreasonable seizure of property in violation of the Fourth Amendment. Rodriguez asserted that the

state trial court judge who had dismissed the felony charges against him had “rul[ed] that the arrests

carried out by CPD officers were without probable cause as was their seizure of Rodriguez’s

personal and business property in July, 2006.” As to whether reasonable suspicion (as opposed to

probable cause) justified the defendants’ seizure and continued detention of his property, Rodriguez

contended that the “seizure and extended detention of [his] property from M & M, which ultimately

lasted until February 27, 2007, based solely upon an ‘anonymous tip’ about one unrelated vehicle

(the white dump truck) not involved in M & M business, was unreasonable in duration as a matter

of law and well established police regulations.” Rodriguez concluded that “[i]n the absence of a

legitimate administrative inspection and/or probable cause, the CPD detectives needed a warrant to

search M & M, and they had no basis to seize any of the nine (9) tow truck vehicles and tools in July,

2006.”

         The defendants jointly opposed Rodriguez’s motion for summary judgment, contending that

Rodriguez’s motion was “premised entirely on mischaracterizations of fact, mischaracterizations as


                                                 - 10 -
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Rodriguez v. City of Cleveland


to the basis for impounding certain vehicles used by M & M, and mischaracterizations regarding the

underlying criminal case.” According to the defendants, “[t]he undisputed facts establish a

constitutionally sound basis for taking each of these items such that Rodriguez suffered no Fourth

Amendment violation.”

       After Rodriguez moved for summary judgment on his seizure of property claim, the

defendants jointly moved for summary judgment on the ground that “[t]here is no genuine issue of

material fact to refute that none of the Defendants violated any of the Plaintiffs’ federally protected

civil rights, and the individual Defendants are entitled to qualified immunity.”16 More specifically,

the defendants contended that they had developed “probable cause to arrest Jose Rodriguez, and

there was no violation of his Fourth Amendment rights.” Moreover, the defendants maintained that

they had “impounded Rodriguez’s vehicles pursuant to a facially valid City ordinance that provided

an adequate post-deprivation remedy, and, therefore, resulted in no Fourth Amendment violation.”

       Rodriguez opposed the defendants’ joint motion for summary judgment. He argued that the

individual defendants had “used warrantless searches and seizures under the pretext of an

administrative C.C.O. § 601.15 inspection;” indeed, in initiating the search of M & M, the individual

defendants’ “primary stated objective was to search and gather evidence of a stolen dump truck.”

Rodriguez also maintained that he had been “both unlawfully arrested and detained by CPD



       16
         Although the defendants filed their joint motion for summary judgment before Rodriguez
had officially filed his Third Amended Complaint, the district court denied the defendants’ joint
motion to file a revised motion for summary judgment in response to Rodriguez’s filing of the Third
Amended Complaint.

                                                - 11 -
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Rodriguez v. City of Cleveland


detectives on two (2) separate occasions without a warrant, court order or probable cause.” In

support of this contention, Rodriguez asserted that, “[g]iven the M & M receipt hand delivered to

defendant Hall on July 7, 2006, there is ample evidence in the record that the CPD detectives, as

Rodriguez’s accusers, had no probable cause to believe that he was actually guilty of ‘receiving

stolen property’ or in ‘possession of criminal tools’ because they had no witnesses to the alleged

crimes, and they did not observe any of the alleged crimes.”

        The district court denied qualified immunity as to all of Rodriguez’s federal constitutional

claims and granted Rodriguez’s motion for summary judgment as to his seizure of property claim.

In finding that the individual defendants lacked probable cause to seize Rodriguez’s property, the

district court relied upon its perception that the state trial court judge dismissed the felony charges

against Rodriguez on the basis of just such a finding.17 Rodriguez, 619 F. Supp. 2d at 477.

Moreover, from the district court’s perspective, there was no evidence to suggest that Rodriguez

“had cause to believe that the stolen truck in question had been obtained through a theft offense.”

Id. at 477-78. And, although the defendants claimed that they had impounded M & M’s tow trucks




        17
          The record instead appears to show that the state trial court judge granted Rodriguez’s
motion for judgment of acquittal because the state had not presented sufficient evidence to convict
him on any of the charges against him. Indeed, Ohio Rule of Criminal Procedure 29(A) provides
that a state trial court, “on motion of a defendant . . . after the evidence on either side is closed, shall
order the entry of a judgment of acquittal of one or more offenses charged in the indictment,
information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or
offenses.” (Emphasis added.) It does not appear that the state trial court judge, in granting
Rodriguez’s Rule 29 motion, addressed the issue of probable cause at all.

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Rodriguez v. City of Cleveland


pursuant to C.C.O. § 677A, the district court concluded that C.C.O. § 677A “does not authorize the

towing of vehicles.” Id. at 478.

       Furthermore, the district court found that the defendants could not resort to reasonable

suspicion (as opposed to probable cause) as a justification for their detention of Rodriguez’s property

because the anonymous tip about the stolen dump truck had lacked sufficient indicia of reliability.

Id. Even if the anonymous tip had been reliable, however, and had “provid[ed] reasonable suspicion

for the temporary detention of the allegedly stolen dump truck,” the district court held that “the

seizure of all the remaining M & M vehicles was certainly not the least intrusive means of

conducting the investigation in this case; neither was the detention of all of those vehicles for

approximately seven months and for nearly a month following the dismissal of the claims against

[Rodriguez].” Id.

       Nor could the defendants seek shelter under the administrative inspection exception to the

Fourth Amendment’s warrant requirement, according to the district court, because an “administrative

inspection may not be used to gather evidence as part of what is, in actuality, a criminal

investigation.” Id. at 479 (citing New York v. Burger, 582 U.S. 691, 716 n.27 (1987)). The district

court concluded that “[b]ecause the Defendants should have obtained a search warrant prior to

conducting this type of inspection, and because they had neither probable cause nor reasonable

suspicion to seize and subsequently retain the M & M tow trucks, the seizure of the tow trucks

violates the Fourth Amendment.” Id. Adding insult to constitutional injury, after the defendants had

arrested Rodriguez and “seiz[ed] half of his property on July 7, 2006,” the defendants had “c[o]me


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Rodriguez v. City of Cleveland


back a week later, again without a warrant, and arrested the Plaintiff again, while seizing the

remainder of his property.” Id.

       Having found a violation of Rodriguez’s Fourth Amendment rights, the district court

determined that “[t]he requirement that government officials must obtain a search warrant before

making an unwelcome intrusion onto private property has been clearly established law for over 20

years.” Id. Furthermore, “the notion that either probable cause or reasonable suspicion (depending

on the circumstances of the search) is required for a constitutional seizure of persons or property has

been clearly established law for over 20 years.” Id. at 480. Accordingly, the defendants’ violation

of Rodriguez’s Fourth Amendment rights “was objectively unreasonable.” Id. The district court,

therefore, denied qualified immunity. Id. Because there were “no genuine issue[s] of material fact

with respect to [Rodriguez’s] claim of a Fourth Amendment violation based on an unreasonable

search and seizure,” the district court granted summary judgment in Rodriguez’s favor. Id.

       With respect to defendants’ motion for summary judgment on Rodriguez’s claims premised

on failures to investigate, train, and supervise, the district court denied qualified immunity because

“genuine issues of material fact remain[] that must be resolved at trial.” Id. at 481-82. The district

court similarly denied defendants summary judgment on Rodriguez’s First Amendment retaliation

and harassment claim on the ground that genuine issues of material fact remain “regarding the

involvement of the Defendants” in the allegedly retaliatory incidents and because “[t]he defense of

qualified immunity has generally been rejected by the courts in conjunction with retaliation claims.”

Id. at 483-84. The district court determined that Rodriguez’s claim of malicious prosecution and


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Rodriguez v. City of Cleveland


unlawful detention without probable cause required the same analysis as Rodriguez’s claim premised

on the intentional omission of exculpatory evidence to secure indictments. Id. at 484 n.21. The

district court denied qualified immunity as to both claims because “there exist genuine issues of

material fact about whether some or all of the Defendants withheld exculpatory information in order

to indict Plaintiff Rodriguez, arrest him, and seize (and continue the detention of) his property.” Id.

at 484.

          Defendants now appeal, asserting that they are entitled to qualified immunity.

B. Palmer’s civil rights action

          On October 14, 2008, Palmer filed a complaint against the City of Cleveland, Lieutenant

Miller, Detectives Hall and Davis, and other named defendants in federal district court. In her

Amended Complaint, Palmer states claims for (1) Count I: malicious prosecution and illegal

attachment; and (2) Count II: unreasonable search and seizure in violation of the Fourth Amendment.

          In April 2009, Palmer moved for summary judgment on her Fourth Amendment seizure of

property claim. The defendants opposed her motion for summary judgment and also filed a separate

motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). In this

motion, the defendants argued, in relevant part, that “Palmer’s claims under Section 1983 are all

time-barred by Ohio’s two-year statute of limitations for claims brought under Section 1983.”

          The district court granted summary judgment for defendants on both of Palmer’s claims,

finding them both barred by the statute of limitations. Rodriguez, 619 F. Supp. 2d at 480-81. Palmer

subsequently sought, and the district court granted, a Federal Rule of Civil Procedure 54(b)


                                                - 15 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


certification. The district court concluded that there was “no just reason for delay[ing]’ Palmer’s

appeal” of the grant of summary judgment. Palmer now appeals.

       Because this is an appeal from the district court’s denial of qualified immunity, with more

proceedings to follow, our jurisdiction is limited to the consideration of issues of law. See McKenna

v. City of Royal Oak, 469 F.3d 559, 561 (6th Cir. 2006). Indeed, “a defendant, entitled to invoke a

qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that

order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.”

Johnson, 515 U.S. at 319-20.

  III. Search of M & M did not violate Rodriguez’s rights under the Fourth Amendment

       Qualified immunity is warranted under Count I, because the individual defendants did not

violate Rodriguez’s Fourth Amendment rights when they searched M & M pursuant to C.C.O.

§ 601.15. This is so even though the defendants had received an anonymous tip about a stolen dump

truck on M & M’s lot. State actors sued under 42 U.S.C. § 1983 are generally afforded qualified

immunity, which means that “government officials performing discretionary functions 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 have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 807 (1982). Qualified immunity applies if, “considering the allegations

in a light most favorable to the party injured, a constitutional right has [not] been violated.” Estate

of Carter, 408 F.3d at 310 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). That is the case here.




                                                - 16 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


Pursuant to C.C.O. § 601.15, the individual defendants had the authority to search M & M’s lot.

That ordinance provides,

       For the purpose of locating stolen motor vehicles and/or stolen motor vehicle parts,
       the Chief of Police, or his authorized representative, may inspect any motor vehicle,
       as defined in RC 4501.01 and may inspect any motor vehicle part that has been
       marked with an identifying number by the manufacturer, situated in the City of
       Cleveland in any . . . service garage, repair shop, . . . auto sales lot, vehicle leasing
       or rental lot, motor vehicle salvage facility, scrap metal processing facility, auto
       wrecking yard, junk yard, or other similar establishment, and may inspect the title,
       registration, vehicle identification number, or license plates of the vehicle in order
       to establish the rightful ownership or possession of the vehicle or vehicle part.

C.C.O. § 601.15(a). Rodriguez does not appear to challenge the facial constitutionality of this

ordinance, which provides for warrantless administrative inspections of businesses in the automotive

and salvage industries. Indeed, both this court and the Ohio Court of Appeals have upheld C.C.O.

§ 601.15 against facial constitutional challenges. Term Auto Sales, Inc. v. City of Cleveland, 54 F.3d

777, 1995 WL 308988, at *2-5 (6th Cir. May 18, 1995) (per curiam); State v. Grays, No. 82410,

2003 WL 22972240, at *2-4 (Ohio Ct. App. Dec. 18, 2003); see also State v. Zinmeister, 501 N.E.2d

59, 63-65 (Ohio Ct. App. 1985) (upholding, against facial constitutional challenge, predecessor to

current version of C.C.O. § 601.15). Furthermore, the Supreme Court upheld a similar New York

statute against Fourth Amendment challenge in New York v. Burger, 482 U.S. 691, 708-18 (1987).

       The individual defendants’ pre-search suspicion that Rodriguez possessed a stolen dump

truck did not render their warrantless administrative search of M & M invalid. This conclusion finds

support in United States v. Villamonte-Marquez, 462 U.S. 579 (1983), where the Supreme Court

concluded that customs officers had not offended the Fourth Amendment when, pursuant to a federal


                                                - 17 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


statute, those officers boarded a sailboat in a shipping channel and asked to see the sailboat’s

documentation. Id. at 580-83, 592-93. While onboard the sailboat and examining its documentation,

one of the customs officers detected an odor of burning marijuana; “[l]ooking through an open hatch,

[that officer] observed burlap-wrapped bales that proved to be marijuana.” Id. at 583. The officers

subsequently discovered that more than 5800 pounds of marijuana had been stashed “in almost every

conceivable place” on board the sailboat. Id. The boat’s passengers were ultimately convicted of

several charges related to the importation and possession with the intent to distribute of marijuana.

Id. at 583. On appeal to the Supreme Court, “[t]he only question presented . . . concern[ed] the

validity of the suspicionless boarding of the vessel for a document inspection.” Id. at 584 n.3. The

Court rejected, in a footnote, the passengers’ contention that, because the customs officers “were

accompanied by a Louisiana State Policeman, and were following an informant’s tip that a vessel

in the ship channel was thought to be carrying marijuana, they may not rely on the statute authorizing

boarding for inspection of the vessel’s documentation.” Id. The Court explained that its acceptance

of such an argument “would lead to [an] incongruous result,” id.; indeed, the Court saw “little logic

in sanctioning such examinations of ordinary, unsuspect vessels but forbidding them in the case of

suspected smugglers,” id. (quoting United States v. Arra, 630 F.2d 836, 846 (1st Cir. 1980)); see also

Scott v. United States, 436 U.S. 128, 138 (1978) (“[T]he fact that the officer does not have the state

of mind which is hypothecated by the reasons which provide the legal justification for the officer’s

action does not invalidate the action taken as long as the circumstances, viewed objectively, justify

that action.”)


                                                - 18 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


        In cases more factually analogous to this one, other federal circuits have concluded that an

officer’s suspicion as to the presence of a stolen vehicle did not render unconstitutional the initiation

of a warrantless administrative inspection of an automotive repair- or salvage-related business. For

example, in Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007), an Auto Theft Unit officer had received

a complaint from an individual who had allegedly purchased a vehicle with a suspicious VIN from

a particular auto body repair shop and salvage yard. Id. at 1235-36. After receiving this complaint,

the officer and his supervisor set out to search the repair shop/salvage yard pursuant to a Florida

statute that “permits a warrantless physical inspection of” such businesses “during normal business

hours ‘for the purpose of locating stolen vehicles.’” Id. at 1236 (quoting Fla. Stat. § 812.055). In

a subsequent civil rights action, the owner of the repair shop/salvage yard asserted that, “from the

inception, the search of the [business] was not a routine administrative inspection, but rather an

ordinary criminal raid, undertaken with suspicion of a particular crime and implemented to discover

and seize evidence of that crime.” Id. at 1240. Although the Eleventh Circuit recognized “that the

administrative search exception [should] not be allowed to swallow whole the Fourth Amendment,”

id. at 1241, that court concluded that the inception of the warrantless administrative inspection at

issue nonetheless passed constitutional muster, id. at 1242.18 Noting that “[t]he Supreme Court has


        18
          Though that court found the search of the repair shop/salvage yard acceptable in its
inception, the Eleventh Circuit held that there was a genuine issue of material fact as to whether the
search was unreasonable in its execution. Bruce, 498 F.3d at 1248. The court noted that
“administrative searches are an exception to the Fourth Amendment’s warrant requirement, but they
are not an exception to the Fourth Amendment’s requirement for reasonableness.” Id. at 1243 (citing
Donovan v. Dewey, 452 U.S. 594, 598-99 (1981)). Still, the search in that case was “conducted by
20 officers over a period of eight hours” and involved a SWAT-like invasion of the premises with

                                                 - 19 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


made quite clear that an administrative search is not rendered invalid because it is accompanied by

some suspicion of wrongdoing,” the Eleventh Circuit determined that the complaint the officers had

received did not generate the probable cause necessary to support an application for a search warrant.

Id. Lacking “direct criminal suspicion of wrongdoing,” the officers had “validly invoked their

statutory authority to” search the repair shop/salvage yard. Id.

       Under similar circumstances, the Fifth Circuit also upheld an administrative search. In

United States v. Thomas, 973 F.2d 1152 (5th Cir. 1992), a state agent had tracked a particular salvage

vehicle to a particular salvage yard and had then conducted a warrantless administrative inspection

of that salvage yard pursuant to a state statute. Id. at 1155. The proprietor of the salvage yard, who

had been convicted of several counts of falsifying vehicle identification numbers and of trafficking

in motor vehicles with such falsified numbers, challenged the constitutionality of the warrantless

administrative inspection on appeal. Id. In response to the proprietor’s challenge, the Fifth Circuit

held that “[a]dministrative searches conducted pursuant to valid statutory schemes do not violate the

Constitution simply because of the existence of a specific suspicion of wrongdoing.” Id. at 1155-56;

see also Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 198 n.7 (5th Cir. 2009) (noting that an

“administrative search cannot be pretextual,” but “[a]n officer’s suspicions about criminal

wrongdoing do not . . . render an administrative inspection pretextual”).




the search and detention of employees, making it much more invasive than the search at issue in this
case. Id. at 1244.

                                                - 20 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


        The Tenth Circuit has similarly held that where officers “lacked probable cause to think that

any specific criminal conduct had occurred,” but “had a vague suspicion that the kind of criminal

activity the administrative scheme was directed towards detecting—car theft—had occurred or might

be evident at [a particular] salvage yard . . . [t]here [was] nothing unconstitutional in embarking upon

an administrative inspection with that degree of criminal suspicion.” United States v. Johnson, 408

F.3d 1313, 1321 (10th Cir. 2005). At the same time, the Tenth Circuit “cautioned, however, that the

evidence of criminal activity cannot be so compelling that police have, in essence, probable cause

to believe that specific criminal conduct has occurred.” Id. Rodriguez himself maintains that the

anonymous tip about the stolen dump truck did not provide the individual defendants with probable

cause, or even reasonable suspicion, to justify a search of M & M’s premises. Even though the

individual defendants suspected wrongdoing before they searched M & M, that suspicion did not

render their warrantless administrative inspection pretextual, and thus, invalid. The individual

defendants’ initiation of the search at M & M, therefore, did not violate the Fourth Amendment.

        The situation in Jacob v. Township of West Bloomfield, 531 F.3d 385 (6th Cir. 2008), relied

upon by the district court, was very different. The district court cited Jacob to support the contention

that “when officials target a particular individual for an inspection and when that inspection carries

‘with it the very real threat of criminal sanctions,’ . . . the inspection is criminal in

nature—necessitating a warrant—and not administrative.” Rodriguez, 619 F. Supp. 2d at 479.

However, the Jacob case involved entry by a land ordinance enforcement officer onto the curtilage

of the plaintiff’s residential property to inspect the area for violations of a local land use ordinance


                                                 - 21 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


that the plaintiff had violated multiple times in the past. Jacob, 531 F.3d at 387-88. In Jacob, this

court recognized the high expectation of privacy in the curtilage of a person’s home, and “considered

[the] distinction between criminal and merely administrative investigations.” Id. at 389-90 (citing

Widgren v. Maple Grove Twp., 429 F.3d 575 (6th Cir. 2005)). This case, in contrast, involves the

search of the business premises of a closely-regulated industry. Further, the ordinance at issue falls

within the acceptable overlap between administrative schemes and penal laws. See Burger, 482 U.S.

at 712-13 (stating that “a State can address a major social problem both by way of an administrative

scheme and through penal sanctions,” and that “an administrative scheme may have the same

ultimate purpose as penal laws, even if its regulatory goals are narrower,” when considering a search

pursuant to a similar provision permitting searches of junkyard businesses). Accordingly, the

individual defendants’ administrative search fell within the confines of the Fourth Amendment,

which entitles them to qualified immunity as to this claim.

 IV. Seizure of property did not violate Rodriguez’s rights under the Fourth Amendment

       The individual defendants did not violate Rodriguez’s clearly established Fourth Amendment

rights by the seizure without probable cause of tow trucks that had not been stolen.19 Qualified

immunity is warranted even if a constitutional violation has occurred if the right violated was not



       19
          We need not address the stolen dump truck nor the seizure of various tools. The district
court found, on the basis of Rodriguez’s evidence, that the individual defendants never towed or
confiscated the stolen dump truck from M & M. See Rodriguez, 619 F. Supp. 2d at 471. Moreover,
on appeal, Rodriguez does not appear to address the constitutionality of the seizure of his various
tools, e.g., the ten-ton floor jack, the blue tool chest, etc., which defendants contend were contraband
or evidence of crime.

                                                 - 22 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


clearly established, Estate of Carter, 408 F.3d at 310 (citing Saucier, 533 U.S. at 201), and we may

proceed directly to that inquiry in appropriate cases. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

“The 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.”

Livermore v. Lubelan, 476 F.3d 397, 404 (6th Cir. 2007) (quoting Brosseau v. Haugen, 543 U.S.

194, 198-99 (2004)). Assuming, without necessarily deciding, that the seizure of the tow trucks

violated Rodriguez’s Fourth Amendment rights, the individual defendants are entitled to qualified

immunity nonetheless because there was a reasonable basis to believe that they had the authority to

impound Rodriguez’s tow trucks for violations of local licensing laws. While lawfully on M & M’s

premises to conduct a warrantless administrative inspection, Lieutenant Miller apparently noticed

that the tow trucks returning to M & M along Harvard Avenue lacked external identification

markings in violation of C.C.O. § 677A.10; nor did the tow trucks have the proper license tags on

their bumpers, a violation of C.C.O. § 677A.04. Detective Davis apparently confirmed for

Lieutenant Miller that none of the tow trucks returning to M & M were licensed by the City of

Cleveland—a violation of C.C.O. § 677A.02(a). And, in fact, Rodriguez conceded during his

deposition testimony that M & M’s tow trucks were never licensed by the City of Cleveland.

Pursuant to C.C.O. § 677A.99, any of these violations of Chapter 677A is a second-degree

misdemeanor.

       The individual defendants contend that they impounded the tow trucks because of these

various violations, and pursuant to C.C.O. § 405.02, which authorizes the impounding of vehicles


                                                - 23 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


under a number of circumstances including: “[w]hen any vehicle is parked on any street or other

public property and displays illegal plates or fails to display the currently lawfully required license

plates,” or “[w]hen any vehicle has been operated by any person who is driving without a lawful

license or while his license has been suspended or revoked.” C.C.O. § 405.02(d), (i). Published

Ohio cases have apparently not applied or construed this ordinance; therefore, it cannot be said that

a limited interpretation of the ordinance has been clearly established. Moreover, Rodriguez does not

contest that C.C.O. § 405.02 is a facially valid ordinance, and this court’s decision in Wolfel v.

Morris, 972 F.2d 712 (6th Cir. 1992), supports the conclusion that the individual defendants are

entitled to qualified immunity because they reasonably relied on a facially valid local ordinance.20

Although it is not clear that the M & M tow trucks were “parked,” as that term is defined by local

ordinance or that all (or any) of the vehicles were being operated by persons driving without valid

personal licenses, when Lieutenant Miller noticed that these tow trucks lacked the proper license

tags, the individual defendants could still have reasonably understood C.C.O. § 405.02 as authorizing

the impoundment of M & M’s tow trucks. Significantly, both subsections give officers the ability

to impound vehicles because of licensing violations. Accordingly, there was a reasonable basis for


        20
          Wolfel involved prison guards’ seizure as contraband of signature pages for petitions
circulated among prison inmates, which the guards believed violated a facially valid state regulation.
Wolfel, 972 F.2d at 714. Though this court found the regulation to be unconstitutionally vague as
applied to these plaintiffs, we held that the prison officials were entitled to qualified immunity for
their actions. Id. at 719. The prison guards’ “interpretation of that regulation to cover the events at
issue was . . . in error,” but this court could not “say that no reasonable official . . . could not have
thought that the regulation provided sufficient notice that the prisoners’ actions were punishable.”
Id. Thus, the prison officials had “reasonably relied on and applied valid regulations,” and were
“entitled to qualified immunity for their actions.” Id. at 720.

                                                 - 24 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


the defendants to believe that they had the authority, under this ordinance, to impound Rodriguez’s

tow trucks, whether or not that belief was actually correct under a strict interpretation C.C.O. §

405.02.

        Rodriguez contends that, because he complied with state licensing requirements, he was not

obligated to comply with the City of Cleveland’s licensing requirements, and that the individual

defendants, therefore, lacked the authority to impound his tow trucks. But that is not clearly the case.

Rodriguez cites City of Cleveland v. Fox, 761 N.E.2d 126 (Ohio Ct. App. 2001), as support for his

contention. In Fox, the Ohio Court of Appeals reversed a tow truck driver’s conviction for violating

C.C.O. § 677A.14, which requires that “[e]very person driving a tow truck shall be licensed.” Id.

at 126, 129 (alteration in original). The Ohio Court of Appeals concluded that 49 U.S.C.

§ 14501(c)(1)21 preempted all local regulation of towing companies. Id. at 128. Moreover, the court

of appeals held that none of the statutory exceptions to that general preemption provision applied to

save Cleveland’s licensing requirements from preemption—although § 14501(c)(2)(A)22 reserved

the power of promulgating safety regulations for the states, that exception did not extend to the


        21
             49 U.S.C. § 14501(c)(1) states,

        Except as provided in paragraphs (2) and (3), a State, political subdivision of a State,
        or political authority of 2 or more States may not enact or enforce a law, regulation,
        or other provision having the force and effect of law related to a price, route, or
        service of any motor carrier (other than a carrier affiliated with a direct air carrier
        covered by section 41713(b)(4)) or any motor private carrier, broker, or freight
        forwarder with respect to the transportation of property.
        22
         Pursuant to 49 U.S.C. § 14501(c)(2)(A), the general preemption provision in § 14501(c)(1)
“shall not restrict the safety regulatory authority of a State with respect to motor vehicles.”

                                                 - 25 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


states’ political subdivisions. Id. Finding Cleveland’s licensing requirements preempted, the Ohio

Court of Appeals declined to decide whether C.C.O. § 677A.14 “constitute[d] safety regulations that

would fall within [§] 14501(c)(2)(A)’s exception to preemption.” Id.

       Approximately one year after the Ohio Court of Appeals’ decision in Fox, however, the

United States Supreme Court effectively overruled that decision. In City of Columbus v. Ours

Garage & Wrecker Service, Inc., 536 U.S. 424 (2002), the Supreme Court held “that § 14501(c) does

not bar a State from delegating to municipalities and other local units the State’s authority to

establish safety regulations governing motor carriers of property, including tow trucks.” Id. at 428.

(emphasis added). The Supreme Court “express[ed] no opinion,” though, as to whether the City of

Columbus’s regulation of tow truck companies, at issue in Ours Garage, “in whole or in part,

qualif[ied] as [an] exercise[] of ‘safety regulatory authority’ or otherwise f[e]ll within

§ 14501(c)(2)(A)’s compass.” Id. at 442. It appears that neither the Supreme Court, this court, nor

any Ohio court has since decided whether local tow truck licensing requirements “qualify as

exercises of ‘safety regulatory authority’” such that § 14501(c)(2)(A)’s exception to federal

preemption applies. Nor do we need to decide this issue today; the mere fact that it has not been

settled is sufficient to resolve the qualified immunity issue in this appeal. Thus, Cleveland’s tow

truck licensing requirements are not clearly preempted by federal law.

       It is less clear, however, whether Cleveland’s requirements are preempted by Ohio law.

Section 4921.30 of the Ohio Revised Code states,

       Any person, firm, copartnership, voluntary association, joint-stock association,
       company, or corporation, wherever organized or incorporated, that is engaged in the

                                               - 26 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


       towing of motor vehicles is subject to regulation by the public utilities commission
       as a for-hire motor carrier under this chapter. Such an entity is not subject to any
       ordinance, rule, or resolution of a municipal corporation, county, or township that
       provides for the licensing, registering, or regulation of entities that tow motor
       vehicles.

This provision went into effect on March 31, 2003—well before the incidents at issue in this case.

However, the City of Cleveland apparently “maintains that Ohio’s attempt to preempt cities in this

area is unconstitutional under the Home Rule doctrine of the Ohio Constitution, and [Cleveland]

continues to enforce its tow truck regulations.” In March 2009, the City of Cleveland filed a

declaratory judgment action in the Court of Common Pleas for Cuyahoga County, Ohio, seeking to

clarify whether Ohio Rev. Code § 4921.30 does, in fact, infringe upon Cleveland’s Home Rule

authority. It appears that no state court has yet ruled on this issue.

       Because it is not clear whether Cleveland’s tow truck licensing requirements are preempted

by federal or state law, and because those requirements were apparently still on the books in July

2006, it was not objectively unreasonable for the individual defendants in this case to enforce those

requirements by impounding the tow trucks. See Wolfel, 972 F.2d at 719; cf. Michigan v.

DeFillippo, 443 U.S. 31, 37-38 (1979) (concluding, in a different context, that “ [a] prudent officer

. . . should not have been required to anticipate that a court would later hold the ordinance

unconstitutional”). Accordingly, the individual defendants are entitled to qualified immunity for

their actions in impounding M & M’s tow trucks.

       Rodriguez also asserts that the continued detention of his property, after its initial seizure,

violates the Fourth Amendment, but this also is not clearly the case. The citations Detective Davis


                                                - 27 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


issued on July 14, 2006, for violations of C.C.O. § 677A.02, ordered Rodriguez to appear at the

Cleveland Municipal Court on July 28, 2006. At some point, those charges were dismissed, but the

date of dismissal is not entirely clear from the record. In his affidavit, Rodriguez asserts that, on July

26, 2006, his “criminal defense counsel, by certified letter, made a demand to [Lieutenant Miller]

for the return of all vehicles not subject to criminal allegations.” But, according to that affidavit, “all

of the vehicles not subject to any criminal allegations continued to be held in the physical custody

of the City of Cleveland until August 27, 2006[,] and thereafter.” This statement, however, makes

the questionable suggestion that the impounded vehicles were not subject to any criminal allegations,

but we have already determined that they were impounded according to local ordinance because they

lacked the required markings. On August 28, 2006, Rodriguez’s counsel moved the Court of

Common Pleas for Cuyahoga County, Ohio, for an order releasing the tow trucks. Although the state

court granted Rodriguez’s motion on August 29, 2006, the state court subsequently set aside that

order and required the re-seizure of the tow trucks.23 By September 10, 2006, Rodriguez and Palmer

had rescinded their earlier agreements for the sale of M & M. Thus, Rodriguez no longer had a

possessory interest in the vehicles after that date and cannot claim a violation of his rights in the

property’s detention after September 10, 2006.


        23
          According to the docket from the criminal case against Rodriguez, his emergency motion
for the return of personal property was granted on August 29, 2006. However, on September 7,
2006, the court vacated and set aside that order pending consideration of the State’s motion for
reconsideration of the August 29 motion. Accordingly, the tow trucks continued to be held pursuant
to court order past the date of rescission of the contract for the sale of M & M. Rodriguez does not
dispute the enforceability of these court orders, but instead suggests that the defendants kept his
property in violation of said orders. This, however, appears not to be the case.

                                                  - 28 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


       Assuming the tow trucks continued to be held, because of the aforementioned licensing

violations, at least until the rescission of the contract for the sale of M & M, the defendants were

entitled to qualified immunity with respect to their refusal to release them.24 Pursuant to C.C.O.

§ 405.05, the owner of a lawfully impounded vehicle has the following three options:

       (1) The owner . . . shall pay a towing charge of twenty-five dollars ($25.00) for an
       ordinary tow or thirty-five dollars ($35.00) for a dolly tow, all outstanding fines for
       violating provisions of this Traffic Code, and a storage fee of three dollars ($3.00)
       for each day or part thereof the vehicle is impounded after the first twenty-four hours.
       Upon such payment, the vehicle shall be released.

       (2) The owner . . . shall furnish a bond in an amount as set by rule of the Municipal
       Court. Such bond shall be upon the condition that such owner or other person appear
       in the Municipal Court to answer the violation which caused the vehicle to be
       impounded. The date for such appearance shall be scheduled when the bond is
       posted. Upon the posting of such bond, the vehicle shall be released.

       (3) The owner . . . shall request a probable cause hearing. The hearing shall take
       place on the day after such owner or other person is given written notice to the
       Cleveland Police Division Vehicle Impound Unit of his intention to challenge the
       towing. If, however, such day is a Saturday, Sunday or legal holiday, the hearing will
       be held on the next day which is not a Saturday, Sunday or legal holiday.

Rodriguez, however, did not exercise any of these options. Instead, Rodriguez admits only that his

“criminal defense lawyer, by certified letter, made a demand to defendant Miller for the return of all

vehicles not subject to criminal allegations forthwith.” Rodriguez appears to assume that the


       24
         No evidence in the record conclusively establishes when these licensing charges were
dismissed. The plaintiff bears the ultimate burden of proof in showing that the defendant is not
entitled to qualified immunity. Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000).
Rodriguez has failed to meet that burden here by failing to produce any evidence of the date on
which the licensing charges were dismissed, or that the defendants continued to retain the tow trucks
at issue after such a dismissal. Instead, Rodriguez relies almost entirely on the lack of probable
cause in the initial seizure of the property, but this court has already rejected that argument.

                                                - 29 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


vehicles were confiscated in connection with his criminal charges of receiving stolen property and

should have been released because they were obviously not stolen, but the trucks were actually

impounded for licensing violations and this impoundment did not violate clearly established law.

Thus, the officers are entitled to qualified immunity on this Fourth Amendment claim.

                V. Seizure of Rodriguez did not violate the Fourth Amendment

       As to Rodriguez’s seizure of person claims, the individual defendants are entitled to qualified

immunity for their arrest of Rodriguez on July 7, 2006, because they had probable cause to believe

that he had received stolen property.25 The Fourth Amendment “permits an officer to arrest a suspect

without a warrant if there is probable cause.” DeFillippo, 433 U.S. at 36. The Supreme Court has

consistently stated that “‘probable cause’ to justify an arrest means facts and circumstances within

the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution,

in believing, in the circumstances shown, that the suspect has committed, is committing, or is about

to commit an offense.” Id. at 37. However, “the Fourth Amendment does not require that a police

officer know a crime has occurred at the time the officer arrests or searches a suspect,” United States

v. Martin, 289 F.3d 392, 400 (6th Cir. 2002) (quoting United States v. Strickland, 144 F.3d 412, 415

(6th Cir. 1998)); see also DeFillippo, 443 U.S. 31, 36 (stating that “the kinds and degree of proof

and the procedural requirements necessary for a conviction are not prerequisites to a valid arrest”);




       25
          Although the district court did not clearly discuss Rodriguez’s seizure of person claims as
distinct from his seizure of property claims, the defendants did address the seizure of person claims
in their joint motion for summary judgment.

                                                - 30 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


rather, “[p]robable cause requires only the probability of criminal activity,” Criss v. City of Kent, 867

F.2d 259, 262 (6th Cir. 1988).

        In the instant case, the facts and circumstances within the defendants’ knowledge at the time

they arrested Rodriguez on July 7, 2006, warranted their belief that Rodriguez had committed a

crime. Ohio law provides, “No person shall receive, retain, or dispose of property of another

knowing or having reasonable cause to believe that the property has been obtained through

commission of a theft offense.” Ohio Rev. Code § 2913.51(A). Before the defendants searched M

& M’s premises on July 7, 2006, Detective Hall had received an anonymous tip from a former long-

time M & M employee that a white dump truck on M & M’s side lot was stolen. In addition to this

anonymous tip, the individual defendants knew that Rodriguez had the key that unlocked the gate

to the side lot where the white dump truck was, in fact, located. The truck’s condition was somewhat

suspicious, in that it no longer had a steering column and there were cut marks where there had once

been equipment. Moreover, when the defendants ran the dump truck’s VIN through their computer

system, they determined that it had been reported stolen from Medina within the last six months.

“For centuries courts have instructed juries that an inference of guilty knowledge may be drawn from

the fact of unexplained possession of stolen goods.” Barnes v. United States, 412 U.S. 837, 843

(1975). If a jury can permissibly find guilty knowledge beyond a reasonable doubt on the basis of

such an inference, then surely the defendants in this case could, on the basis of a similar inference,

reasonably believe that Rodriguez had committed a crime in order to establish probable cause for

his arrest. See Criss, 867 F.2d at 262 n.1 (citing Draper v. United States, 358 U.S. 307, 311-12


                                                 - 31 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


(1959)) (noting that “[t]he quantum of proof required to establish probable cause is significantly

lower than that required to establish guilt”).

       Probable cause was not defeated by the fact that an M & M employee gave Detective Hall

what was purportedly a receipt for the purchase of the stolen dump truck. In Criss, where the civil

rights plaintiff had allegedly explained to the defendant arresting officers that his roommate, not he,

had stolen the street signs found in their apartment, id. at 260-61, we determined that probable cause

supported the plaintiff’s arrest nonetheless, id. at 263. We reasoned,

       A suspect’s satisfactory explanation of suspicious behavior is certainly a factor which
       law enforcement officers are entitled to take into consideration in making the
       determination whether probable cause to arrest exists. A policeman, however, is
       under no obligation to give any credence to a suspect’s story nor should a plausible
       explanation in any sense require the officer to forego arrest pending further
       investigation if the facts as initially discovered provide probable cause.

Id. (citations omitted). Indeed, “[t]o hold otherwise would be to allow every suspect, guilty or

innocent, to avoid arrest simply by claiming ‘it wasn’t me.’” Id. Even if Rodriguez could prove that

he had paid money for the stolen dump truck, he still could have been guilty of receiving or retaining

property of another knowing that it had been stolen. After all, paying money for stolen property does

not make the property any less stolen. Furthermore, the fact that the state trial court judge ultimately

dismissed the charges against Rodriguez does not mean that the defendants lacked probable cause

to arrest him in the first place. See DeFillippo, 443 U.S. at 36. Because the defendants had probable

cause to arrest Rodriguez on July 7, 2006, they did not violate Rodriguez’s Fourth Amendment

rights, and they are therefore entitled to qualified immunity as to this claim.



                                                 - 32 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


        The defendants also had probable cause to arrest Rodriguez on July 13, 2006. By that time,

the defendants had already arrested Rodriguez once in connection with his possession of the stolen

dump truck. In addition, the defendants had received a tip from the same informant, allegedly a

former employee who called in the tip before the initial administrative search, that one of M & M’s

tow trucks had a stolen engine. Moreover, the defendants had confirmed that one of M & M’s tow

trucks, which had been impounded one week earlier, did in fact have an engine that had been

reported stolen. These facts were sufficient to warrant the defendants’ belief that Rodriguez had

knowingly received stolen property, i.e., the stolen engine. Because the defendants had probable

cause to arrest Rodriguez on July 13, 2006, they are entitled to qualified immunity on this claim as

well.

        In sum, because the defendants lawfully searched M & M’s premises pursuant to C.C.O.

§ 601.15, because the defendants reasonably relied on facially valid local ordinances in impounding

and detaining M & M’s tow trucks, and because the defendants had probable cause to arrest

Rodriguez on July 7 and July 13, 2006, the defendants are entitled to qualified immunity on

Rodriguez’s Fourth Amendment search and seizure claims.26




        26
          Count IV, which alleges false arrest and false imprisonment in violation of the Fourth
Amendment, overlaps with Rodriguez’s claims for unreasonable seizure of person (Count I) and
malicious prosecution (Count X). Accordingly, the analysis of those two claims controls the analysis
of this claim. Because the individual defendants are entitled to qualified immunity on each of those
two claims, the individual defendants are entitled to qualified immunity on this claim as well.

                                               - 33 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


     VI. Official immunity for alleged intentional omission of exculpatory information
                                    to secure indictments

       The individual defendants are absolutely immune from Rodriguez’s claim of intentional

omission of exculpatory information to secure indictments (Count V) because Rodriguez relies solely

on Detective Hall’s testimony in making this claim.27 Though the lower court denied summary

judgment on this claim, its reasoning for so holding is not entirely on point.28 Moreover,

Rodriguez’s claim relies on Detective Hall’s grand jury testimony and other “various testimonies”

during the course of the criminal case, as opposed to his non-testimonial actions. Hall’s argument

for absolute witness immunity finds support in this circuit’s precedent. “It is well-settled that

witnesses are granted absolute immunity from suit for all testimony provided in judicial

proceedings.” Spurlock v. Satterfield, 167 F.3d 995, 1001 (6th Cir. 1999). This includes testimony

before a grand jury, Grant v. Hollenbach, 870 F.2d 1135, 1139 (6th Cir. 1989), and more informal

forms of testimony such as depositions and affidavits, see Todd v. Weltman, Weinberg & Reis Co.,

434 F.3d 432, 439-40 (6th Cir. 2006). Accordingly, because Rodriguez’s intentional omission of




       27
        The district court concluded that there are “genuine issues of material fact about whether
some or all of the Defendants withheld exculpatory information in order to indict Plaintiff
Rodriguez.” Rodriguez, 619 F. Supp. 2d at 484. However, because Rodriguez only brought Count
V against Detective Hall, only Detective Hall can be liable on this claim.
       28
         The district court treated Rodriguez’s intentional omission of exculpatory information to
secure indictments claim as “identical” to Rodriguez’s claim of malicious prosecution and continued
unlawful detention in Count X, Rodriguez, 619 F. Supp. 2d at 484 n.21, but it is not clear that these
claims are actually identical and the district court did not cite any authority in support of its
conclusion that they are.

                                               - 34 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


exculpatory information to secure indictments claim is premised on Detective Hall’s testimony,

Detective Hall is absolutely immune from civil liability.

       Our interlocutory jurisdiction to consider Hall’s claim of absolute, rather than qualified,

immunity follows from Moldowan v. City of Warren, 578 F.3d 351 (6th Cir. 2009). In Moldowan,

a police officer claimed an entitlement to absolute witness immunity on interlocutory appeal in a

federal civil rights action. See id. at 371. We acknowledged in Moldowan that, “[u]nlike qualified

immunity, the denial of a defense of absolute witness immunity generally is not immediately

appealable because the ‘lack of interlocutory appeal from denials of witness immunity does not

imperil [a] substantial public interest.’” Id. at 371 (quoting Kelly v, Great Seneca Fin. Corp., 447

F.3d 944, 949 (6th Cir. 2006)). Because it was a police officer who had claimed an entitlement to

absolute witness immunity in Moldowan, however, and because that police officer had provided the

disputed testimony during a criminal proceeding, we “conclude[d] that the balance of interests at

issue in th[at] case differ[ed] dramatically from the interests implicated by the denial of [absolute

witness] immunity in Kelly,” where we had declined to exercise interlocutory jurisdiction. Id. at 371.

We then explained in Moldowan that “the interests implicated by the district court’s denial of [the

police officer’s] testimonial immunity claim[] are sufficiently akin to those implicated by the denial

of public official immunity to support interlocutory review.” Id. at 372. Indeed,

       [e]xposing police officers . . . to suit based on testimony they deliver as part of their
       official duties and on behalf of the state undoubtedly implicates their ability to
       exercise their discretion and potentially inhibits them from performing their duties.
       Unlike the parties before us in Kelly, “[s]ection 1983 lawsuits against police officer
       witnesses, like lawsuits against prosecutors, could be expected with some frequency.
       Police officers testify in scores of cases every year, and defendants often will

                                                - 35 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


       transform resentment at being convicted into allegations of perjury by the State’s
       official witnesses.”

Id. (alteration in original) (quoting Briscoe v. LaHue, 460 U.S. 325, 343 (1983)). Because we

concluded in Moldowan that we had interlocutory jurisdiction to review a district court’s denial of

absolute immunity where the witness claiming that immunity was a police officer who had testified

for the state in a criminal trial, we likewise have interlocutory jurisdiction to consider whether

Detective Hall is entitled to absolute immunity for his testimony, and, as discussed above, he is

absolutely immune from civil liability.

               VII. Qualified immunity for alleged retaliation and harassment
                             in violation of the First Amendment

       The individual defendants are entitled to qualified immunity on Rodriguez’s claim alleging

police retaliation and harassment for the filing of this civil lawsuit, in violation of the First

Amendment, because there is no evidence in the record that any of the individual defendants

participated in the allegedly harassing and retaliatory conduct. At most, the record evidence suggests

that some unidentified Cleveland police detectives and police officers took the allegedly harassing

and retaliatory actions—the evidence does not show that it was the individual defendants in this case.

For example, Rodriguez related in an affidavit that, in August 2008, unnamed “Cleveland Police

Detectives” asked Rodriguez’s then-current employer about tow trucks that the employer had

purchased from Rodriguez. Similarly, in February 2009, “members of the Cleveland Police

Department Vehicle Inspection Unit, including but not limited to Sergeant Keith Larson,” who is not

a defendant in this case, instructed Rodriguez’s commercial landlord not to allow Rodriguez to


                                                - 36 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


remove his vehicles from a rented premises. After Rodriguez applied for a tow truck driver’s

license, moreover, he “received a letter from Dorothy Michalko, from the Division of Assessments

and Licenses from the City of Cleveland”—also not a defendant in this case—disapproving his

license application without giving any reason for the disapproval. Rodriguez has put forth no

evidence to suggest that Detective Hall, Detective Davis, or Lieutenant Miller was involved in any

of these (or, for that matter, any other) allegedly harassing and retaliatory episodes.

        It was, therefore, error for the district court to conclude that genuine issues of material fact

precluded summary judgment on this claim. In denying qualified immunity, the district court noted,

        The Defendants argue that they are entitled to summary judgment on this claim
        because the identities of the officers involved in the allegedly harassing and
        retaliatory activities have not been determined . . . . With this argument, the
        Defendants necessarily concede that there are genuine issues of material fact
        regarding the involvement of the Defendants in the abovementioned incidents.

Rodriguez, 619 F. Supp. 2d at 484. We recognize that a court of appeals ordinarily lacks jurisdiction

to consider fact-related disputes on interlocutory appeal. Johnson, 515 U.S. at 307, 319-20.

Specifically, “a defendant may not appeal a district court’s summary judgment order insofar as that

order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id.

at 319-20. However, the Supreme Court, in Scott v. Harris, 550 U.S. 372 (2007), recognized a

narrow exception to this jurisdictional rule. In Scott, despite the district court’s finding that genuine

issues of material fact precluded summary judgment on qualified immunity grounds, id. at 376, and

despite the court of appeals’ affirming that decision after adopting the plaintiff’s view of the facts

on interlocutory appeal, id. at 376, 378, the Supreme Court reversed, concluding that no reasonable


                                                 - 37 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


jury could have believed the plaintiff’s side of the story, id. at 378-81, 386. In reaching that

conclusion, the Supreme Court relied on a videotape of the relevant events, included as part of the

record, that “blatantly contradicted” the plaintiff’s version of the facts. Id. at 378-80. The Supreme

Court explained that, “[a]t the summary judgment stage, facts must be viewed in the light most

favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Id. at 380.

Where, as in Scott, the nonmoving party’s “version of events is so utterly discredited by the record

that no reasonable jury could have believed him,” a court of appeals “should not adopt that version

of the facts for purposes of ruling on a motion for summary judgment.” Id. at 380.

       In an effort to reconcile the Supreme Court’s decision in Scott with the rule in Johnson, “this

Court has concluded that ‘where the trial court’s determination that a fact is subject to reasonable

dispute is blatantly and demonstrably false, a court of appeals may say so, even on interlocutory

appeal.” Moldowan, 578 F.3d at 370 (quoting Wysong v. City of Heath, 260 F. App’x 848, 853 (6th

Cir. 2008)). “However, Scott’s exception [to the rule in Johnson] applies only to the ‘rare’ case at

the ‘outer limit’ where a district court makes a ‘blatan[t] and demonstrabl[e] error.’” Landis v.

Phalen, 297 F. App’x 400, 404 (6th Cir. 2008) (alteration in original) (quoting Wysong, 260 F.

App’x at 853). That is precisely the case here. Rodriguez has advanced only allegations,

unsupported by factual evidence, that Detectives Hall and Davis and Lieutenant Miller harassed and

retaliated against him. This “court’s duty to view the facts in the light most favorable to the

nonmovant does not require or permit the court to accept” as true “mere allegations that are not




                                                - 38 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


supported by factual evidence.” Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009).

Moreover,

        to withstand a properly supported motion for summary judgment, plaintiff must do
        more than rely merely on the allegations of her pleadings or identify a “metaphysical
        doubt” or hypothetical “plausibility” based on a lack of evidence; she is obliged to
        come forward with “specific facts,” based on “discovery and disclosure materials on
        file, and any affidavits,” showing that there is a genuine dispute for trial.

Id. at 912 (citing Fed R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586-87 (1986)).

        Accordingly, Rodriguez’s unsupported allegations do not create a genuine issue of material

fact as to the individual defendants’ involvement in the allegedly harassing and retaliatory incidents.

The district court’s determination that the extent of the individual defendants’ involvement “is

subject to reasonable dispute” is, therefore, on this factual record, “blatantly and demonstrably false.”

Moldowan, 578 F.3d at 370 (quoting Wysong, 260 F. App’x at 853). Rodriguez has put forth no

evidence whatsoever that Detectives Hall and Davis and Lieutenant Miller harassed and retaliated

against him in violation of his First Amendment rights; therefore, we need not adopt his unsupported

version of events. Rodriguez has not shown that Detectives Hall and Davis and Lieutenant Miller

violated his First Amendment rights and they are, thus, entitled to qualified immunity on this claim.

    VIII. Qualified immunity for alleged malicious prosecution and continued unlawful
          detention without probable cause in violation of the Fourth Amendment

        The individual defendants are entitled to qualified immunity on Rodriguez’s malicious

prosecution and continued unlawful detention claim. A federal malicious prosecution “claim

encompasses wrongful investigation, prosecution, conviction, and incarceration.” Barnes v. Wright,

                                                 - 39 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


449 F.3d 709, 716 (6th Cir. 2006) (citing Thacker v. City of Columbus, 328 F.3d 244, 259 (6th Cir.

2003)). Further, “the subset of malicious prosecution claims which allege continued detention

without probable cause must be pursued and analyzed under the Fourth Amendment.” Gregory v.

City of Louisville, 444 F.3d 725, 750 (6th Cir. 2006). To prevail on such a claim, “it is clear that a

plaintiff must show, at a minimum, ‘that there was no probable cause to justify [his] arrest and

prosecution.’” Thacker, 328 F.3d at 259 (alteration in original) (quoting Darrah v. City of Oak Park,

255 F.3d 301, 259 (6th Cir. 2001)). As discussed above, there was probable cause to arrest

Rodriguez on both July 7 and July 13, 2006. Moreover, “it has been long settled that ‘the finding

of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the

existence of probable cause for the purpose of holding the accused to answer.’” Barnes, 449 F.3d

at 716 (quoting Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002)). Because Rodriguez “was

indicted pursuant to a determination made by the grand jury, he has no basis for his constitutional

claim.” Higgason, 288 F.3d at 877. Thus, the defendants did not violate Rodriguez’s rights in

prosecuting or detaining him and they are, therefore, entitled to qualified immunity.

        IX. Qualified immunity on alleged supervisory liability of Lieutenant Miller
                            for Fourth Amendment violations

       Lieutenant Miller is entitled to qualified immunity on Rodriguez’s supervisory liability for

Fourth Amendment violations claim because that claim is premised on the search of M & M,

Rodriguez’s two arrests, and the seizure of his property, all of which comported with the Fourth

Amendment. Because Rodriguez brought this supervisory liability claim against Lieutenant Miller

only, neither Detective Hall nor Detective Davis can be held liable under the theory of supervisory

                                                - 40 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


liability—there are no such allegations pending against them. A theory of supervisory liability

requires a civil rights plaintiff to demonstrate more than a supervisor’s mere passivity in the face of

a subordinate’s alleged unconstitutional action. Indeed, “liability under § 1983 must be based on

active unconstitutional behavior and cannot be based upon ‘a mere failure to act,’” Shehee v. Luttrell,

199 F.3d 295, 300 (6th Cir. 1999) (quoting Salehpour v. University of Tennessee, 159 F.3d 199, 206

(6th Cir. 1998)), or the “mere right to control employees,” Gregory, 444 F.3d at 751. Since there

was no unconstitutional behavior on the part of either Lieutenant Miller or his subordinates,

however, in effecting Rodriguez’s arrests and the seizures of his property, Lieutenant Miller is

entitled to qualified immunity on this claim.

                             X. Palmer’s untimely civil rights action

        This court has jurisdiction to entertain Plaintiff/Cross-Appellant Palmer’s appeal because the

district court’s grant of summary judgment for defendants on her claims is an appealable final

judgment. Although Palmer filed her notice of appeal before the district court had entered a Federal

Rule of Civil Procedure 54(b) certification, the district court did eventually enter such a certification.

Indeed, on March 8, 2010, the district court issued this order: “Because there is ‘no just reason for

delay[ing]’ Palmer’s appeal of [the district court’s May 26, 2009,] order, the Court directs the entry

of judgment accordingly under Rule 54(b).” Rule 54(b), in turn, provides,

        When an action presents more than one claim for relief—whether as a claim,
        counterclaim, crossclaim, or third-party claim—or when multiple parties are
        involved, the court may direct entry of a final judgment as to one or more, but fewer
        than all, claims or parties only if the court expressly determines that there is no just
        reason for delay.


                                                  - 41 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


This court has previously “h[e]ld that a premature notice of appeal ripens upon the entry of a proper

Rule 54(b) certification, regardless of whether the certification is entered nunc pro tunc.” Good v.

Ohio Edison Co., 104 F.3d 93, 95 (6th Cir. 1997). Accordingly, the district court’s grant of summary

judgment for defendants on Palmer’s claims is an appealable final judgment and this court has

jurisdiction over Palmer’s appeal pursuant to 28 U.S.C. § 1291.

       The district court properly granted summary judgment, on statute of limitations grounds, on

Palmer’s Fourth Amendment seizure of property claim. This court reviews a district court’s

dismissal on statute of limitations grounds de novo. Banks v. City of Whitehall, 344 F.3d 550, 553

(6th Cir. 2003). “Actions brought pursuant to 42 U.S.C. § 1983 apply the statute of limitations from

a state’s general personal injury statute.” Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th

Cir. 2003). Thus, for 42 U.S.C. § 1983 actions brought in Ohio, a two-year statute of limitations

applies. Id. at 855-56 (citing Ohio Rev. Code § 2305.10). This two-year “statute of limitations

begins to run when the plaintiff knows or has reason to know of the injury which is the basis of his

action.” McCune v. Grand Rapids, 842 F.2d 903, 905 (6th Cir. 1988). A plaintiff, moreover, “has

reason to know of his injury when he should have discovered it through the exercise of reasonable

diligence.” Id.

       Although Palmer learned in July 2006 that M & M’s property had been seized, she did not

file a complaint in federal district court until October 14, 2008. The seizure of M & M’s property

provides the basis for Palmer’s Fourth Amendment seizure of property claim. Because Palmer did

not bring her Fourth Amendment seizure of property claim within two years of when she learned that


                                                - 42 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland


the property had been seized, the district court properly granted summary judgment for defendants

on statute of limitations grounds.

       The district court properly granted summary judgment for defendants on Palmer’s malicious

prosecution claim, as well. The malicious prosecution claim also relies on the seizure of M & M’s

property as the basis for Palmer’s constitutional injury; thus, that claim is also untimely.

                                          XI. Conclusion

       For the foregoing reasons, the individual defendants are entitled to qualified immunity with

respect to the claims in the Rodriguez action. We therefore reverse and remand for further

proceedings consistent with this opinion. We affirm, however, the district court’s grant of summary

judgment as to Palmer’s claims on statute of limitations grounds.




                                                - 43 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland et al.

       HELENE N. WHITE, Circuit Judge (concurring in part, dissenting in part). I agree with

the majority that we have interlocutory jurisdiction to consider whether Detective Hall is entitled to

absolute immunity as to plaintiff Rodriguez’s claim that he intentionally omitted exculpatory

evidence to secure indictments, that Hall was entitled to absolute immunity, and that the claim was

thus properly dismissed. I also agree that plaintiff Palmer’s claims were properly dismissed.

       I respectfully dissent from the majority’s determination that the individual defendants are

entitled to qualified immunity as to Rodriguez’s claims of retaliation and harassment under the First

Amendment. I cannot agree with the majority that the district court’s determination that genuine

issues of fact precluded summary judgment of the First Amendment retaliation and harassment

claims was “blatantly and demonstrably false.”

       The record supports the district court’s determination. Specifically, Rodriguez’s third

amended complaint alleged that in August 2008 (after the case against him had been dismissed by

the Cuyahoga County Common Pleas Court) officers in the Cleveland Police Department’s (CPD)

auto theft unit visited and questioned the owner of another towing company regarding trucks

Rodriguez formerly owned, and the officers told the towing company owner not to tell Rodriguez

they had been there and questioned him. Rodriguez’s third amended complaint also alleged other

retaliation and harassment by the CPD in the spring of 2008 and in later 2008. Defendants’ motion

for summary judgment stated (as does the district court’s opinion at n.3, R. 156 at 3) that in July

2006, the CPD’s auto theft unit consisted of four officers, three of whom are individual defendants

in this case, Miller, Hall, Davis. R. 117 at 15. Defendants’ deposition testimony and affidavits

establish that Hall and Davis remained in the auto theft unit in August 2008. R. 117-5, ¶ 2 (Hall

                                                - 44 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland et al.

sworn declaration); R. 85-1 at 6 (Davis dep.); R.85-5 at 12-13, 25 (Miller dep.) Thus, in 2008, two

of the four individual defendants were in the auto theft unit, a unit that apparently is generally

comprised of four officers.

       Under these circumstances, the district court’s determination that genuine issues of material

fact remained regarding the individual defendants’ involvement in the alleged retaliation and

harassment during 2008 was not “palpably and demonstrably false.”

       Nor do I agree that the individual defendants are entitled to qualified immunity as to

Rodriguez’s malicious prosecution and continued unlawful detention without probable cause under

the Fourth Amendment. Because the district court properly determined that genuine issues of

material fact precluded granting summary judgment on these claims, this court cannot, on

interlocutory appeal, review those determinations. Johnson v. Jones, 515 U.S. 307, 319-20 (1995)

(holding that “a defendant, entitled to invoke a qualified immunity defense, may not appeal a district

court’s summary judgment order insofar as that order determines whether or not the pretrial record

sets forth a ‘genuine’ issue of fact for trial”), Bomar v. City of Pontiac, 643 F.3d 458, 461 (6th Cir.

2011) (citing Johnson, 515 U.S. at 317.)

       I also respectfully dissent from the majority’s determination that the individual defendants

are entitled to qualified immunity on Rodriguez’s claims of unreasonable search and seizure under

the Fourth Amendment (Count I), and would affirm the district court’s grant of his motion for partial

summary judgment, as explained below.

       Finally, given that there was an underlying constitutional violation of Rodriguez’s rights, I

respectfully dissent from the majority’s determination that defendants City of Cleveland and Police

                                                - 45 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland et al.

Chief McGrath are entitled to summary judgment as to Rodriguez’s claim of municipal liability, i.e.,

that defendant City, or the Cleveland Police Department, headed by defendant McGrath, had a well-

established custom or practice of using administrative inspections of regulated businesses as a

pretext or guise to gather evidence of criminal activity without obtaining a warrant, and the related

claims of failure to train, investigate and discipline. The district court properly determined that

genuine issues of fact precluded summary judgment of these claims.



                                                  I

       Warrantless inspections of commercial sites that are part of a pervasively regulated industry

may be constitutionally permissible if they meet the three-prong test of New York v. Burger, 482 U.S.

691, 700 (1987):

               Because the owner or operator of commercial premises in a “closely
       regulated” industry has a reduced expectation of privacy, the warrant and probable-
       cause requirements, which fulfill the traditional Fourth Amendment standard of
       reasonableness for a government search, have lessened application in this
       context . . . . [W]e conclude that, as in other situations of special need, where the
       privacy interests of the owner are weakened and the government interests in
       regulating particular businesses are concomitantly heightened, a warrantless
       inspection of commercial premises may well be reasonable within the meaning of the
       Fourth Amendment.

               This warrantless inspection, however, even in the context of a pervasively
       regulated business, will be deemed to be reasonable only so long as three criteria are
       met. First, there must be a “substantial” government interest that informs the
       regulatory scheme pursuant to which the inspection is made . . . . Second, the
       warrantless inspections must be necessary to further the regulatory scheme. . . .
       Finally, the statute’s inspection program, in terms of the certainty and regularity of
       its application, must provide a constitutionally adequate substitute for a warrant. In
       other words, the regulatory statute must perform the two basic functions of a warrant:
       it must advise the owner of the commercial premises that the search is being made

                                               - 46 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland et al.

       pursuant to the law and has a properly defined scope, and it must limit the discretion
       of the inspecting officers.

482 U.S. at 702 (citations and quotations omitted, emphasis added). See also United States v.

Branson, 21 F.3d 113, 116 (6th Cir. 1994) (citing Burger, 482 U.S. at 702).

       In upholding the constitutionality of a warrantless administrative inspection of an automobile

junkyard business, the Burger Court observed that it was undisputed that the inspection was made

solely pursuant to the administrative regulation and that the inspection did not appear to be a pretext

for obtaining evidence of criminal wrongdoing:

       The legislative history of [the administrative inspection regulation] . . . reveals that
       the New York Legislature had proper regulatory purposes for enacting the
       administrative scheme and was not using it as a “pretext” to enable law enforcement
       authorities to gather evidence of penal violations. . . . There is, furthermore, no
       reason to believe that the instant inspection was actually a “pretext” for obtaining
       evidence of respondent’s violation of the penal laws. It is undisputed that the
       inspection was made solely pursuant to the administrative scheme.

Burger, 482 U.S. at 716 n.27 (emphasis added). Burger makes clear beyond peradventure that “[t]he

discovery of evidence of crimes in the course of an otherwise proper administrative inspection does

not render that search illegal.” Anobile v. Pelligrino, 303 F.3d 107, 122 (2d Cir. 2002) (quoting

Burger, 482 U.S. at 716) (emphasis added). See also United States v. Johnson, 408 F.3d 1313, 1321

(10th Cir. 2005), cert. denied, 546 U.S. 951 (2005) (noting that Burger “did not endorse a scheme

that would allow a warrantless search based on recently discovered evidence that criminal activity

had occurred,” and that inspections of business premises “conducted not as part of a pre-planned and

dispassionate administrative procedure but instead pursuant to direct criminal suspicion give cause

for grave constitutional concern.”) (citations and internal quotations omitted, emphasis added).


                                                - 47 -
Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland et al.

                                                  A

       I cannot agree with the majority that the individual defendants’ administrative search fell

within the confines of the Fourth Amendment. The majority overlooks that Burger and its progeny

make clear that where, as in the instant case, officials conduct an administrative inspection based

solely on their direct criminal suspicion, the search is invalid from its inception. The cases the

majority relies neither overrule nor contravene this long-standing proposition.

       United States v. Villamonte-Marquez, 462 U.S. 579 (1983), on which the majority relies to

support its determination that “defendants’ pre-search suspicion that Rodriguez possessed a stolen

dump truck”29 did not render their warrantless administrative search invalid, is distinguishable from

the instant case because it did not involve an administrative inspection prompted solely by direct

criminal suspicion of criminal wrongdoing.

       In Villamonte-Marquez, customs officers and Louisiana state policemen were patrolling a

ship channel, apparently at least in part because of a tip that a vessel in the channel was carrying

marijuana. 462 U.S. at 582, 584 n.3. The officers sighted an anchored 40-foot sailboat in the

channel, and approached it after witnessing it rock violently in the wake of a passing large freighter.

Id. at 582. The officers twice asked the lone man on deck if the sailboat and crew were all right, and

the man unresponsively shrugged his shoulders. Pursuant to Customs laws permitting suspicionless

boarding of vessels to examine the manifest and other documents, the officers boarded the sailboat

and asked to see the vessel’s documentation. Id. at 583-85. While examining the document, an



       29
            Maj. Op. at 17.

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Rodriguez v. City of Cleveland et al.

officer smelled what he thought to be burning marijuana and observed burlap-wrapped bales through

an open hatch. Villamonte-Marquez was laying atop the bales on a sleeping bag. The officer

arrested both the man on deck and Villamonte-Marquez, and a subsequent search revealed thousands

of pounds of marijuana, including in the burlap-wrapped bales. Id. at 583.

       The Court of Appeals for the Fifth Circuit reversed the defendants’ convictions of drug-

related charges, finding that the officers’ boarding of the sailboat was not reasonable under the

Fourth Amendment because the boarding occurred absent reasonable suspicion of a violation of law.

Id. The Supreme Court granted certiorari and reversed, holding that the officers’ suspicionless

boarding of the sailboat was reasonable and thus consistent with the Fourth Amendment. The Court

noted that while random stops of vehicles without articulable suspicion of unlawful conduct are

impermissible, the nature of waterborne commerce in waters providing ready access to the open sea

is sufficiently different from vehicular traffic on highways so that alternatives to the sort of stop

made here would be less likely to accomplish the essential governmental purposes involved. Id. at

592-93. In a footnote, the Villamonte-Marquez Court stated:

       There is no issue in this case concerning the activities of the officers once they
       boarded the Henry Morgan II. The only question presented to this Court concerns
       the validity of the suspicionless boarding of the vessel for a document inspection.

       Respondents, however, contend in the alternative that because the Customs officers
       were accompanied by a Louisiana State Policeman, and were following an
       informant’s tip that a vessel in the ship channel was thought to be carrying marijuana,
       they may not rely on the statute authorizing boarding for inspection of the vessel’s
       documentation. This line of reasoning was rejected in a similar situation in Scott v.
       United States, 436 U.S. 128, 135-139 [] (1978), and we again reject it. Acceptance
       of respondent’s argument would lead to the incongruous result criticized by Judge
       Campbell in his opinion in United States v. Arra, 630 F.2d 836, 846 ([1st Cir.] 1980):


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       “We would see little logic in sanctioning such examinations of ordinary, unsuspect
       vessels but forbidding them in the case of suspected smugglers.”

462 U.S. at 584 n.3 (emphasis added).

       The informant’s tip in Villamonte-Marquez bears no resemblance to the tip relaying specific

criminal wrongdoing by Rodriguez; rather, it relayed that a vessel in the ship channel, not the

particular sailboat boarded and searched, was thought to be carrying marijuana. Thus, the Supreme

Court characterized as “suspicionless” the officers’ boarding of the sailboat in Villamonte-Marquez.

Clearly, the marijuana seized in Villamonte-Marquez was discovered during the course of the

document inspection, following the officers’ boarding of the sailboat to conduct a document

inspection. In contrast, in the instant case, the allegedly stolen white truck at M&M was discovered

during the course of an inspection prompted solely by a tip that relayed specific criminal wrongdoing

by Rodriguez, i.e., that he possessed the stolen white truck. Dist. Ct. Op. at 3;R. 156 at 3.

                                                 B

       Similarly, the remaining cases the majority relies on, like Villamonte-Marquez and unlike

the instant case, did not involve direct criminal suspicion of wrongdoing and are thus also

distinguishable. In Bruce v. Beary, 498 F.3d 1232, 1235-36 (11th Cir. 2007), a customer of Bruce’s

auto body repair shop and salvage yard complained to an officer of the county auto-theft unit that

he had purchased a car from Bruce at Bruce’s place of business, and that the vehicle identification

number (VIN) plate did not match the confidential VIN sticker on the car. Officers decided to

conduct an administrative inspection of the premises, pursuant to a Florida statute. Numerous

officers surrounded the premises, entered with guns drawn, searched the employees and offices, and


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Rodriguez v. City of Cleveland et al.

inspected more than 150 vehicles. Officers found what appeared to be a counterfeit VIN plate in

Bruce’s briefcase, and several vehicles that had been reported stolen or were missing, or had altered,

VIN plates. Shortly after, Bruce was arrested and charged with possession of loose VIN plates, and

operating a chop shop. Id. at 1237. A few hours later, the officers obtained a search warrant and

then seized files, office equipment, and over 100 vehicle titles and registrations. Id. at 1238.

       Bruce brought suit under 42 U.S.C. § 1983, alleging that the administrative inspection

violated the Fourth Amendment. The district court granted summary judgment to all the defendants,

holding that there had been no constitutional violations. On appeal, Bruce argued

       that an administrative inspection, pursuant to an authorizing statute, must be a
       routine, random, suspicionless visit to a business to inspect books and records. He
       asserts that any time law enforcement has “particularized suspicion” of illegal
       activity at a business and seeks to investigate and gather evidence, it must arrive
       warrant in hand.

               Bruce relies heavily on the Supreme Court’s 2000 decision in [United States
       v.] Edmond, [531 U.S. 32 (2000),] in which the Court consistently uses the term
       “suspicionless searches” to characterize administrative searches. 531 U.S. at 37 [].
       (“we have upheld brief, suspicionless seizures”). The Court in Edmond struck down
       a drug-interdiction checkpoint because its primary purpose was the detection of
       “ordinary criminal wrongdoing.” Id. at 41 []. The Court said that “when government
       seeks to ferret out crime, it is expected to comply with the Fourth Amendment.” Id.

               Furthermore, the Tenth Circuit’s recent decision in United States v. Johnson,
       408 F.3d 1313, 1321 (10th Cir. 2005), supports Bruce’s view. In Johnson, the Tenth
       Circuit stated that when the “evidence of criminal activity [is] so compelling that
       police have, in essence, probable cause to believe that specific criminal conduct has
       occurred,” they must get a warrant. Id. This is so, the court said, because Burger did
       not endorse a scheme that would allow a warrantless search based on recently
       discovered evidence that criminal activity had occurred. Id. Furthermore, the court
       said, inspections of business premises conducted not as part of a pre-planned and
       dispassionate administrative procedure but instead pursuant to direct criminal
       suspicion give cause for grave constitutional concern. Id.


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              The Eighth Circuit has also recognized the danger of allowing administrative
       searches to become “pretexts for ‘crime control.’” United States v. Knight, 306 F.3d
       534, 537 (8th Cir. 2002) (holding unconstitutional the administrative search of
       personal belongings conducted in that case).

               We share our sister circuits’ concern that the administrative exception not be
       allowed to swallow the whole Fourth Amendment. See Swint v. City of Wadley, Ala.,
       51 F.3d 988, 998 (11th Cir. 1995) (“Even in the context of administrative searches
       of business property, however, the Fourth Amendment limits warrantless searches”).
       Unless the warrant exception for administrative inspections of pervasively regulated
       businesses means that under no circumstances is law enforcement required to secure
       a warrant prior to entry, at some level of suspicion a warrant is required. In this era
       of pervasive regulation of most businesses, to interpret the exception otherwise might
       well give cause for general alarm.

               We need not, however, address today the question of where to draw that line
       because we hold that under the circumstances of this case the officers did not cross
       it. The Supreme Court has made quite clear that an administrative search is not
       rendered invalid because it is accompanied by some suspicion of wrongdoing. In
       United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 [] (1983), the Court
       approved an administrative search that was prompted by an informant’s tip that a
       vessel was carrying marijuana, noting that there was “little logic in sanctioning . . .
       examinations of ordinary, unsuspect vessels but forbidding them in the case of
       suspected smugglers” (quoting United States v. Arra, 630 F.2d 836, 846 (1st Cir.
       1980)).

               We too have approved administrative searches in response to information
       giving rise to some suspicion of illegal activity. Crosby v. Paulk, 187 F.3d 1339,
       1348 and n.12 (11th Cir. 1999). In Crosby, officers conducted the administrative
       inspection of a nightclub as part of an ongoing criminal investigation into underage
       drinking and other alcohol violations. Id. at 1342. See also United States v. Thomas,
       973 F.2d 1152, 1155-56 (5th Cir. 1992) (administrative searches do not violate
       Constitution simply because of the existence of specific suspicion of wrongdoing);
       United States v. Nechy, 827 F.2d 1161, 1167 (7th Cir. 1987); Arra, 630 F.2d at 846.

               Even in Johnson, in which the Tenth Circuit cautioned against administrative
       searches in the service of particularized suspicion, the court upheld the warrantless
       search at issue in the case, concluding that the officers did not have “direct criminal
       suspicion” of wrongdoing. 408 F.3d at 1321.



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Nos. 09-3679, 09-3799
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               Similarly, in this case, the officers did not have “direct criminal suspicion”
       of wrongdoing. They received a criminal complaint regarding possible VIN
       violations at Bruce’s auto body shop. This information alone did not rise to the level
       of probable cause that would have supported application for a warrant. In the
       absence of such direct criminal suspicion, the officers validly invoked their statutory
       authority to inspect Bruce’s Premises to determine whether he was operating in
       accordance with Florida law governing use of VIN plates. Merely because the
       officers had “an objectively reasonable basis to suspect they might find stolen cars
       or car parts in their inspection does not invalidate that inspection.” Id. at 1323.
       Therefore, we hold that defendants were permitted to conduct a warrantless
       administrative inspection of Bruce’s Premises for the purpose of investigating VIN
       violations.

Bruce, 498 F.3d at 1241-42 (some citations and quotations omitted, emphasis added).

       Just as Bruce acknowledges that the administrative inspection at issue there was valid given

the absence of direct criminal suspicion, so does another case on which the majority relies, United

States v. Johnson, 408 F.3d 1313, 1321-22 (10th Cir. 2005) (upholding administrative inspection

where officers did not have direct criminal suspicion regarding the auto salvage shop or its

employee, Johnson, but rather had “a vague suspicion that the kind of criminal activity the

administrative scheme was directed towards detecting – car theft – had occurred or might be evident

at the salvage yard where Johnson worked.”)

        Another case the majority relies on is United States v. Thomas, 973 F.2d 1152, 1156 (5th

Cir. 1992), in which the defendant appealed his conviction of illegal activities involving alteration

of VIN numbers. Texas had a Department of Public Safety (DPS) pilot program of documenting

salvage vehicles that were not economically feasible to rebuild. The program’s purpose was to

uncover illegal salvage-switch or VIN-switch operations. Under such schemes, the VIN from the

salvage vehicle is switched to a stolen car, which is then sold under the guise of rebuilt salvage.


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Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland et al.

After tracking a salvage vehicle to the defendant’s auto salvage business, a DPS investigator

conducted an inventory inspection, during which he seized a vehicle and VIN plates, which provided

the information needed to secure a search warrant of the defendant’s residence, at which VIN plates

were found. Id. at 1155.

       Unlike the instant case, there is no indication that the salvage vehicle’s mere presence at

Thomas’s auto salvage business was illegal. The Fifth Circuit found meritless the defendant’s

argument that the search violated the Fourth Amendment “because it was not part of a scheme of

periodic and frequent inspections, but rather, was targeted at gathering information concerning

specific vehicles.” Id. Although the Fifth Circuit cited Villamonte-Marquez for the proposition that

“specific suspicion of wrongdoing” will not invalidate an administrative inspection, 973 F.2d 1155-

56, the facts and holding in Thomas are in keeping with the distinction articulated since Burger

between generalized or vague suspicion of wrongdoing and direct criminal suspicion.

       Another Fifth Circuit case the majority cites, Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 197-

98 (5th Cir. 2009) quotes from Burger, 482 U.S. at 724: “In the law of administrative searches, one

principle emerges with unusual clarity and unanimous acceptance: the government may not use an

administrative inspection scheme to search for criminal violations.”

                                                  C

       Since Burger, the Supreme Court has reiterated that where a warrantless administrative

inspection of a closely-regulated business is conducted for the sole purpose of criminal investigation,

the search is invalid. In Whren v. United States, 517 U.S. 806 (1996), the Court remarked:



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Nos. 09-3679, 09-3799
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       We are reminded that in Florida v. Wells, 495 U.S. 1, 4 [] (1990), we stated that “an
       inventory search” must not be a ruse for a general rummaging in order to discover
       incriminating evidence”; that in Colorado v. Bertine, 479 U.S. 367, 372 [] (1987),
       in approving an inventory search, we apparently thought it significant that there had
       been “no showing that the police, who were following standardized procedures, acted
       in bad faith or for the sole purpose of investigation”; and that in New York v. Burger,
       482 U.S. 691, 716-717, n.27 [] (1987), we observed, in upholding the
       constitutionality of a warrantless administrative inspection, that the search did not
       appear to be “a ‘pretext’ for obtaining evidence of . . . violation of . . . penal laws.”
       But only an undiscerning reader would regard these cases as endorsing the principle
       that ulterior motives can invalidate police conduct that is justifiable on the basis of
       probable cause to believe that a violation of law has occurred. In each case we were
       addressing the validity of a search conducted in the absence of probable cause. Our
       quoted statements simply explain that the exemption from the need for probable
       cause (and warrant), which is accorded to searches made for the purpose of inventory
       or administrative regulation, is not accorded to searches that are not made for those
       purposes. See Bertine, supra, at 371-372 []; Burger, supra, at 702-703 [].
       ....
       [W]e never held, outside the context of inventory search or administrative inspection
       . . . , that an officer’s motive invalidates objectively justifiable behavior under the
       Fourth Amendment . . .

Whren, 517 U.S. at 811-12 (some emphasis added). And in Ashcroft v. al-Kidd, 131 S. Ct. 2074

(2011), the Court reiterated in discussing qualified immunity that a warrant and probable cause are

not needed for an administrative inspection of a closely-regulated business provided that the officer’s

purpose was to “attend to the investigation for which the administrative inspection is justified”:

               Fourth Amendment reasonableness is predominantly an objective inquiry.
       We ask whether “the circumstances, viewed objectively, justify [the challenged]
       action.” If so, that action was reasonable “whatever the subjective intent” motivating
       the relevant officials. Whren v. United States, 517 U.S. 806, 814 [] (1996). This
       approach recognizes that the Fourth Amendment regulates conduct rather than
       thoughts; and it promotes evenhanded, uniform enforcement of the law.

              Two limited exceptions to this rule are our special-needs and administrative-
       search cases, where “actual motivations” do matter. A judicial warrant and
       probable cause are not needed where the search or seizure is justified by special
       needs, beyond the normal need for law enforcement, such as the need to deter drug

                                                - 55 -
Nos. 09-3679, 09-3799
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       use in public schools, or the need to assure that railroad employees engaged in train
       operations are not under the influence of drugs or alcohol; and where the search or
       seizure is in execution of an administrative warrant authorizing, for example, an
       inspection of fire-damaged premises to determine the cause, or an inspection of
       residential premises to assure compliance with a housing code. But those exceptions
       do not apply where the officer’s purpose is not to attend to the special needs or to the
       investigation for which the administrative inspection is justified. See Whren, [517
       U.S.] at 811-812 [] . . . .

              Apart from those cases, we have almost uniformly rejected invitations to
       probe subjective intent . . . .

Al-Kidd, 131 S. Ct. 2080-81 (some citations and internal quotations omitted, some emphasis added.)

                                                 D

       I agree with the district court that Defendants’ July 7 and 13, 2006 searches of M&M, and

seizures of Rodriguez and property from M&M, prompted solely by their direct suspicion of

Rodriguez’s criminal wrongdoing, were unreasonable under the Fourth Amendment,30 Burger, 482

U.S. at 716 n.27; Whren, 517 U.S. at 811-12, and that Rodriguez thus satisfied the first prong of the

qualified immunity test. See Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003).

       The second prong of qualified immunity is that the constitutional right violated was clearly

established at the time of defendants’ misconduct. Al-Kidd, 131 S. Ct. at 2080, Feathers, 319 F.3d

at 848. The prohibition on warrantless administrative inspections prompted solely by officials’ direct

criminal suspicion, announced in Burger in 1987, has been consistently rearticulated by the Supreme

Court thereafter. See Whren, 517 U.S. at 811-12 (and cases cited therein), al-Kidd, 131 S. Ct. at

2080-81.



       30
            Dist. Ct. Op./R. 156 at 21-22.

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Nos. 09-3679, 09-3799
Rodriguez v. City of Cleveland et al.

       Given that the inspection of M&M was unlawful from its inception, nothing discovered in

the ensuing search could be used to support the required probable cause to seize property or arrest

Rodriguez. See Bruce, 498 F.3d at 1248 (citing Mapp v. Ohio, 367 U.S. 643 (1961)).

       I would affirm the district court’s grant of partial summary judgment to Rodriguez on his

claims that defendants’ searches and seizures violated the Fourth Amendment.




                                              - 57 -
