Michigan Court of Appeals Holds Police Officers Not Entitled To Qualified Immunity

On October 28th, 2014, the Michigan Court of Appeals held in a civil case that police officers are not entitled to qualified immunity for violating a homeowner's Fourth Amendment right to be free from unreasonable searches and seizures when the officers should know that consent to enter a home cannot be established "from a mere non-verbal acquiescence to an officer’s claim that the officer has the lawful authority to enter the home and conduct a search in the absence of a warrant."

In Lavigne v Forshee et al, Docket No. 312530, the Michigan Court of Appeals addressed the issue of whether police officers who entered a home on the suspicion of drug possession were entitled to qualified immunity when they did not have a warrant, probable cause, or valid consent to enter the home.

The Court first recited the facts of the case.

Plaintiffs allege in their 42 USC 1983 claim that Detective Kristee Forshee and Deputy Eric Leonard violated their Fourth Amendment rights by unreasonably searching their home on September 29, 2010, without a warrant, probable cause, or consent. Plaintiffs assert that the search was plainly unreasonable because it was the product of police coercion, rather than voluntary consent. Defendant Forshee argued that because she believed plaintiffs had consented to the officers’ entry into their home, she did not violate plaintiffs’ Fourth Amendment rights, or alternatively that she was entitled to qualified immunity because her conduct did not evince plain incompetence or a blatant disregard for plaintiffs’ constitutional rights.

According to Officer Forshee, the police were investigating an anonymous tip that Kimberly was growing marijuana in her residence and unlawfully selling it to high school students. The day before the entry, the police had stopped at the home to talk to Kimberly, but were told she was out shopping. The next morning, officers retrieved several trash bags from the end of the home’s driveway. Inside they discovered suspected marijuana stems, branches, and “roaches.” Deputy Leonard testified that when he informed the prosecutor about the anonymous tip and the results of the “trash pull,” the prosecutor stated that although he believed the officers had gathered sufficient information to seek a search warrant, he recommended that the officers attempt to obtain consent for a search through a “knock and talk” procedure.

Forshee asserted that she went to plaintiffs’ home with Deputy Leonard and uniformed officer Robert Morningstar. The officers were greeted by Diane, and because she and Leonard were dressed in plain clothes, they identified themselves as police officers. Forshee stated that she and Leonard had also affixed their badges to their sweatshirts. Diane came outside and told the officers that Kimberly was not at home but that she would telephone her. Forshee testified that before Diane reentered the home to obtain a phone to call Kimberly, Forshee asked if she could follow Diane inside for the officers’ safety. Diane, however, did not respond. Forshee claimed that she stood in the threshold of the doorway, between the outer storm door and the inner main door, while Diane walked to a nearby table to retrieve a phone. Kimberly, who was actually in the home, then approached them. Forshee testified that neither Diane nor Kimberly asked the officers to leave the home or objected to her entry. Forshee also testified that she spoke to Kimberly regarding the marijuana complaint and that Kimberly asserted she had a medical exemption, offering to show Forshee the grow operation in her room. Forshee asserted that she asked to follow Kimberly upstairs to her room for the purpose of officer safety after Kimberly asked to change out of her pajamas. For these reasons, Forshee testified that she believed plaintiffs had consented to her entry into the residence and that Kimberly consented to being followed upstairs to inspect the marijuana grow operation.

In their depositions, Leonard and Morningstar substantially corroborated Forshee’s testimony. But, although Leonard testified that before entering the home Morningstar was on the porch next to him, who in turn was standing next to Forshee, Morningstar testified that he was not on the porch and was too far away to hear any conversations between Diane, Leonard, and Forshee before entry. Leonard further asserted that Diane opened the outer door and entered the home after Forshee asked to follow her into the home.

Kimberly testified that she heard the officers ask Diane to get a phone to call Kimberly and also heard Diane tell the officers that she would do so and return immediately. Kimberly claimed that Forshee entered the home behind Diane by opening the door and then she heard the screen door shut. Kimberly testified that she specifically told Forshee, Leonard, and (later) a third officer in uniform (Morningstar) to leave because they did not have permission to enter the home and did not have a warrant. Kimberly claimed that the officers refused, based on claims of officer safety, to leave the home and get a warrant, and also told her they did not need a warrant to enter and search the home because of the drug dealing complaint. Kimberly contends that Forshee demanded to follow her upstairs and to see her marijuana grow operation. After waiting five minutes for the police to leave, Kimberly conceded and went upstairs to get the medical marijuana paperwork because she wanted the officers to leave. Kimberly contends that she was under duress when she unlocked the spare bedroom upstairs and allowed Forshee to enter and examine her grow operation.

Diane testified that Forshee and Leonard were dressed in plain clothes and did not immediately inform her that they were police officers when she went to the door. She also denied seeing either officer wearing a police badge, but conceded that Forshee and Leonard informed her that they were officers after telling her that she “cannot go into the house without us.” Diane offered to call Kimberly after telling the officers that Kimberly was not home. According to Diane, the officers followed her into the home before the screen door closed behind her. Diane testified that the officers proceeded into the dining room area, where Kimberly approached them and introduced herself. Diane said that Forshee asked to see Kimberly’s medical marijuana card, and that Kimberly said that it was upstairs. Diane asserted that Kimberly asked the officers whether they had a warrant. She noted that Forshee would not allow Kimberly to retrieve her medical marijuana card by herself, and that Forshee demanded to see her “plants.” When asked, Diane did not recall Kimberly saying anything else to the officers.

Forshee further testified that all three officers left the residence after she inspected the marijuana grow operation, and that Kimberly eventually showed Forshee her medical marijuana paperwork that was located in her vehicle. Forshee denied any subsequent involvement or intentional contact with plaintiffs since the September 29 knock and talk. Criminal charges were not filed against either plaintiff as a result of the incident.

The Court's analysis of the officers' qualified immunity claims followed.

Defendant Forshee argues that the trial court should be affirmed on the alternative basis that qualified immunity shields her from plaintiffs’ § 1983 claim. A police officer may invoke the defense of qualified immunity to avoid the burden of standing trial when faced with a claim that the officer violated a person’s constitutional rights. Walsh v Taylor, 263 Mich App 618, 635; 689 NW2d 506 (2004). Although nominated an affirmative defense that must be pleaded, Harlow v Fitzgerald, 457 US 800, 815; 102 S Ct 2727; 73 L Ed 2d 396 (1982), a plaintiff has the burden of overcoming the assertion of qualified immunity at the pretrial stage, Pearson v Callahan, 555 US 223, 231-232; 129 S Ct 808; 172 L Ed 2d 565 (2009). “The doctrine of qualified immunity protects government officials ‘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.’” Id. at 231, quoting Harlow, 457 US at 818. Thus, in the case of a police officer, qualified immunity will not apply if the officer transgresses a right that was “clearly established,” when “‘it would be clear to a reasonable officer that [her] conduct was unlawful in the situation [she] confronted.’” Groh v Ramirez, 540 US 551, 558-559, 563; 124 S Ct 1284; 157 L Ed 2d 1068 (2004), quoting Saucier v Katz, 533 US 194, 202; 121 S Ct 2151; 150 L Ed 2d 272 (2001); see also Walsh, 263 Mich App at 636. When the law is clearly established, “the immunity defense ordinarily should fail, since a reasonably competent [police officer] should know the law governing his [or her] conduct.” Harlow, 457 US at 818-819.

Defendant Forshee does not dispute that the law is clearly established that the police cannot make a warrantless entry into a home unless a recognized exception to the Fourth Amendment’s warrant requirement exists. She relies solely on consent, which clearly established law requires must be “voluntarily given, and not the result of duress or coercion, express or implied.” Schneckloth, 412 US at 248; People v Lumpkin (On Remand), 64 Mich App 123, 125-126; 235 NW2d 166 (1975). Forshee’s argument rests on two principles. First, voluntary consent to search may be granted by conduct. See Carter, 378 F3d at 587. Second, “qualified immunity applies regardless of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’” Pearson, 555 US at 231, quoting Groh, 540 US at 567 (KENNEDY, J., dissenting). Forshee splices these principles together to argue that she is entitled to qualified immunity because, at worse, she mistook Diane’s conduct for consent when “Diane opened the door and walked in the house, allowing the officers to follow in behind her, without telling them they could not enter.”

We find Forshee’s claim of qualified immunity wanting. First, as discussed already, from the evidence viewed in the light most favorable to plaintiffs, a reasonable jury could conclude that Diane did no more than acquiesce to Forshee’s claim of lawful authority to accompany Diane inside the house for the purpose of officer safety. As discussed already, the law is clearly established that voluntary consent cannot be established “‘by showing no more than acquiescence to a claim of lawful authority.’” Farrow, 461 Mich at 208; quoting Bumper, 391 US at 548-549. In each of the cited cases, the police used an invalid or non-existent warrant to conduct a search that was later claimed valid on the basis of consent. These cases hold that “‘[w]hen a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.’” Id. In such a situation, consent is not voluntary but coerced by the officer’s claim of lawful authority. Bumper, 391 US at 549-550. A reasonably competent police officer should know that voluntary consent cannot be inferred from mere non-verbal acquiescence to an officer’s claim that the officer has the lawful authority to enter the home and conduct a search in the absence of warrant. For this reason, we conclude that Forshee’s claim of qualified immunity fails. See Harlow, 457 US at 818-819; see also Guider v Smith, 431 Mich 559, 568; 431 NW2d 819 (1988).

Forshee’s argument for qualified immunity also does not address Kimberly’s claim to have revoked any consent for the officer’s entry into the home that Diane may have communicated by her conduct. At the time of the search, under clearly established law, once voluntarily granted, consent may subsequently be revoked at any time. See Powell, 199 Mich App at 496-498. So, if Kimberly’s testimony regarding revoking any consent that Diane may have granted is believed, defendant Forshee is not entitled to qualified immunity for remaining in the home and the subsequent warrantless search she conducted. Again, if the trier of fact believes Kimberly’s testimony, no reasonable officer in such a situation could believe that remaining in the home and conducting further searches was lawful. Groh, 540 US at 563. We also note this is not a case in which police officers are accorded latitude to act without a warrant, such as when presented with exigent circumstances, or affecting a lawful arrest, or executing a lawfully issued search warrant, or possessing particularized reasons to fear for their safety. See Groh, 540 US at 565, n 9. Rather, voluntary consent is the only asserted justification for the officers’ intrusion on the core protection of the Fourth Amendment—the right a person to retreat into his own home and be free from unreasonable searches and seizure. Id. at 558-559. For all these reasons, we find that Forshee is not entitled to qualified immunity . . .