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

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

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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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