* The Honorable David A. Katz, Uni ted States Distr ict Judge for the

Northern District of Ohio, si tting by designation.
1 R E COM M E NDE D FOR F ULL-TEXT PUBLICAT ION P ur suan t t o Si x t h Ci rc ui t R ul e 2 0 6

E L E C TR O N I C C I TAT I O N : 2003 F E D App . 0238P ( 6th C ir .) F il e N a me : 03a 0238p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

A LI S HAMAEIZADEH ,

Plaintiff- Appellant

,

v.

J OEL C UNIGAN et al., Defenda nts-Appe llees. X - - - -
> , - N No. 01-6326

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 97-00121—Karl S. Forester, Chief District Judge.

Argued: April 30, 2003 Decided and Filed: July 22, 2003

Before: MOORE and RO GERS , Cir cuit J udges; KATZ,

District Judge. *

_________________ COUNSEL

ARGUED: David R. Marshall, Lexington, Kentucky , for Appellan t. Bry an H. Be auman, ST

URG ILL, TURNER, 2 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

BARKER

& MALONEY , Lexington, Kentucky, for Appel le es. ON BRI EF: David R. Marshall, Lexington, Ke nt uc ky, for Appellant. Bry an H. Be aum an, Dou gla s L. McSwain, ST URG ILL, TURNER, BARKER & MALONEY , Lexing ton, Kent ucky , for App ellees.

_________________ OPINION

_________________ KAREN NELSON

MO ORE, Circuit Judge. PlaintiffAppellant Dr. Ali Sha

maei zadeh (“S hamaeiza d eh”) ap peals the district court’s grant of summary judgment for Def endants-Appellees with resp ect to Sha maeiz adeh’s § 198 3 claims and his state law malicious prosecution claim. On March 14, 1994, the Richmond Police Department received
a call rep orting t

he burg lary

of Shamae izadeh’s

resi den ce (“the residence”). An officer r esponde d to t he call and searched the residence for theburglar. The officer then c alled for assistance and conducted a second search with one o f his supervis ors. After di scoveri n g evidence of drug paraph ernalia during the second search, the two officers c alled narcotics experts to the sce

ne to participate in a third search. Based on the evidence discovered, the officers secured and executed two search warrant s for the residence. Shamaeizadeh was indicted for federal drug violations, b ut the charges were dismissedafter the dist

ric t court suppressed the evidence seized from the basement of the residence.

Shamaeizadehfiled a § 1983 acti on including federal claims and a sta

te law malicious prosecution claim against the City of Richmond, Kentuc ky , the Richmond Police Department, a nd five in

dividual o fficers (“the o fficers”) in their individual and official capacities. Shamaeizadeh argues that he is entitled to damages for the f ollowing reasons : (1) the second and third warra n tless searches were unconstit utional; (2) there was no probable cause f or e itherNo. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 3

search warrant; (3) the officers exceede d the scope of the first search warrant; (4) the officers included misrepr es enta tions in the affidavit supporting the second warrant; (5) the officers arrested him without

probable cause; (6) he was malicious ly prosecuted; an d ( 7) th e C it y of Ri chmond fa iled prop erly

to train and supervise its police officers. Th e district court granted summary judgme

nt to the defendants on

all gro unds.

We REVERSE the distri c t court’s grant of summary judgment wi th respect to the sec ond and th ird warr antless searches, and with respect to Sham aeizadeh’s claim that the officers exceeded the scope of the f irst sea rch w arra

nt. We AFFIRM the distri ct court on all othe

r groun ds.

I. FACTS AND PROCEDURE
Shama eiz adeh

owned a one-stor

y ho use with a

basemen t, loc ated at 12 1 M il ls to ne Dr iv e, Ri ch mo nd , K en tu ck y. H e occupied the main floor of the residence with hi s f iancee, Theresa Schmitt (“Schmitt”), and rent ed the ba sement to Brian Reed (“ Reed”)and Joe Ford (“Ford”). All fo ur res id ents of the hou se reg arded the baseme nt as a se parate apartme nt.
OnMarch 14, 1994, Schmitt placed an emergenc y call to the Richmond Po lice Dep artment, reportin g a poss ible burglary of the residence. Officer Mar k Wiles (“Wiles”) was dispatched

and arrive d five minu

tes later . Schmitt

met Wiles at the front door, invited him into the residence, and walked into the kitchen. She told Wile s that she had left the back door open for her cat s, and then had passed out on the kitchen tableafter ta

king musc le relaxa

nts and c onsuming a beer. When Schmitt awoke, s he noticed that her room key was missing fr om her p ocket. She went into another room and, while she was there, someone all egedly reente red the house and broke the glass top of the kitchen table. Wiles observed broken glass on the kitchen floor. 4 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

1 Shamaeizadeh conceded at oral argu men t t hat, at s ome poin t pri or to the second sear ch, Schmi tt i nformed Wiles t hat she bel iev ed t hat

some of the other occu

pants of the hous e were growi ng marij uana. Schmitt asked

Wiles to search the residence with her, and he procee ded to walk t hrough the main floor of the residence. Wiles discovered a locked door, but did not attempt to open it because Schmitt sai d that it

was Shamaeizadeh’s room and that Shamaeizadeh kept

it locked when he was away . Wiles also discovered a broken door, which led to the basement. He did not examine the broken

door because Schmitt said she had kicked it open to use the telephone a few day s earlier. Wiles la ter said that during this search he detected the odor o f growing marijuana.

After searching the main floor of the house, Wiles moved onto a deck overlooking thebackya rd and searched

the rear of the premises . Meanwh

ile, Schmit

t entere d the base

me n t throu gh the broken door, walked out through the back door of the basemen

t apartme nt, and me

t Wiles in the backya

rd. E xpla ining that the occupants of the basement apartment were away on spring break, she asked

Wiles to che ck the ba sement. Wiles proc eeded to

search the base ment. During his search, Wiles noticed that the basement contained several rooms. Many

of the doors were locked, and Wi les did not attempt to open them. He did smell what h e thought was growing marijuana. Af ter wal king t hrough the basemen t, Wiles cal le d Assistant Chief of Police Wayne Grant (“Grant”) because he be lieved he needed the assistance of a supervisor.

Wiles and Schmitt returned to the kitche n and w aited for Grant to arrive. 1 Schmitt

never asked Wiles to leave. While they were waiting, Schm itt told Wiles that she believed the “gove rnment” was the burglar. Wiles was th us incline d to discred it Schmitt’s allegations of burglary . When G ran tNo. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 5

arrived, Wiles brie fed him a bout his activity

thus far . Schmitt participated

in the conversation, in forming the officers that she would retrieve a key

for the locked

doors in the base ment.
Wiles and Grant then conducted a s econd search of the basement apartment. They

did notask

Schmitt’s permission to con du ct the se arch. Whe n they entere d the base

ment, Wiles again smelled what he suspected was marijuana. The officers discover

ed small ma

rijuana cigar ette butts , known as “roaches,” in an ashtray. The y also found b oxes of fluorescent

light bulbs under the apart m ent stairway a

nd observed fluores cent lig

hting in one of the locked rooms turn
onand off intermittently. They

suspected that the fluorescent lighting was being u sed to gr ow mariju

ana bec ause it

is often used for that purpose. Schmitt arrived with a ring of keys, but none of them fit the

locked do ors.
Wiles an d Grant then called Assistant Chief of Narcotics Bill Jesse (“Jesse”). Th ey related their obs ervations to him and requested the assistance of an office r experi enced in detectingnarcotics. Jesse dispatched Sergeant Joel Cunigan (“Cunigan”) to the s ce ne. Cunigan arrived at 9:20 p.m., approxima

tely the same

time that Wil e s’s immediate supervisor, Sergeant

Sam Manley (“Ma

nley”), a rrived. Wiles and Grant briefed Cunigan

and Manley on the situation. Then all four officers conducted a third sear ch of the basement apartme nt. They did not explicit

ly ask Schmitt’s permission to conduct the third s earch, b ut Schmitt participated in the walk-thr ough of the base ment.
When the offic ers ente

red the b asement

durin g the third search, Cunigan smelled a strong odor

that he believed to be growing marijuana. The of

ficers discover

ed a hemo stat; rolling papers; a pl astic bag of what was suspected to be marijuana, but was actually c atnip; and a bag conta inin g a variety of pills. A t this poi nt, they advised Schmitt of her rights. S chmitt st ated her belief that Reed and Ford we re growing marijuana in thei r base ment apartment. According 6 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

to Schmitt, although she never saw marijuana, the scent was
so strong t

hat she c overed her vents

to avoid it, particularly a

t nighttime. Cunigan called a state p ros ecutor and submitted a sworn affida vit in support

of his application for a search warra nt. A state court judge issued a warrant for the search and seizure of “[a]ny and all ill e gall y possessed controlled substanc es i nclud ing marijuana, both growing and proce ssed, and any drug paraphe

rnalia, also any

and all ill egally

p ossessed prescription

drugs. ” Joint Appe

ndix (“J.A.” ) at 58 4 (1st Warrant).

At 11:19 p.m., Cunigan returned to the residence with other officers and an agent fr

om the Drug Enforcement Ag ency to execute the search warrant, conducting a fourth search of

the residence. The officers forcibly opened locked doo rs in th e basement apartment, finding and seizing 39 3 marijua na plants and various pieces of

growing equipment. I

n addition to the drugs and drug paraphernalia, the of ficers indicated

that they seized “assorted paper records, re c eip ts, bank r ecords, insurance record s, tax papers, personal ledgers, jewe lry.” J.A. at 585 (1st Warrant) (notes on warrant).

OnMarch 15, 1994, Detective John Telek (“Telek”) signed
anaffida vit in support of

a second warran t to searc h the house and tw o ve hicles fo

und there . Accor

ding to the warra

nt, Telek wa s permitte d to sear ch for th e followi

ng items :
1. Any a nd a ll illegally possessed c ontrolled subs tances to wit: Marijuana and any dr u g paraphernalia; 2. Any and all tax records or documents reflecting the income an d/or sources of income of any of the above na med pers ons[;] 3. Any documents reflecting the purc hase of drug paraphe rnalia including the receipts for grow lig hts, potting soil, fertilizer, plant pots, fans[.]No. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 7

J.A. at 589 (2d

Warrant) . Shamaei zadeh cla ims t hat this search warran t was drafted in a

n atte mp t to cover up the illegal seizure o f items dur in g the ex ecution o f the first
warran t. Uponthe recommen datio n of the lo cal Common wealth Attorney and a representative of the United States Attorney for th e E as te rn Di st ri ct of

Ke nt uc ky, the Richmond Police Department

turned over the evidence and prosecution

of this matter to the United

S tates government. Shamaeizadeh, Reed, and Ford were arrested a nd i ndict ed for f

ederal druglaw violations under 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. §§ 2 and 924( c)(1). Shamaeiza deh was a lso charged with renting the basement apartment for the pu rpose of unlawfu lly manufacturing, storing, or distributing marijuana under 21 U.S.C. § 856. None of the officers wh o s earched Sh am ae iz ad eh ’s re si de nc e t es ti fi ed be fo re th e g ra nd ju ry. Shamaeizadeh, Reed, and Ford move d to suppress the evidence seized pursuant to the first warrant. At the suppressionhearing, Cunigan and Wiles, the only officers directly involve d in Shamaeizadeh’s criminal prosecution, testified. The magistrate judge conclude d that Wiles’s initial
warran tless search

of the residence was constitutionaldue to exigent circumstances, but fo und the second and third
warran tless searches uncon stitutiona l. The ma gistr ate ju dge recommended

that Cunigan’s affidavit be redacted to re flect only the information

obtained as a result of

the initial search and through conversations with Schmitt. He then concluded that the redacted affidavit provided probable cause to search the m ain fl oor of the residence for illega l drug activity, but not probable

cause to support a

warran t for the b asement

. The magistrate judge therefor e recommended suppressing the evidence seized fr

om the bas eme n t, and the district court adopted this recommendation. The government appealed the districtcourt’ s decision to suppress the evidence, and the SixthCircuit affirme d. United States v. Shamaeizadeh , 80 F.3d 1131 (6 th Ci r. 1996). The gov ernment then move d to 8 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

dismiss the indictment, and the district court granted th e motion. Shamaeizadeh brought a § 1983 action agains t the City

of Richmond, the Richmond Police D epartment, and five individual police of

fi ce rs — C un ig an , W il es , M an le y, Telek, and Grant — for damages caused by the illegal searches and Shamaeizadeh’s subsequent prosecution. Shamaeizadehalso claimed that he was maliciously prose cuted in violation of state law. The office

rs filed a motion to dismiss pursua nt to Federal Rule of Civil Procedure 12(b)(6).

The dis tr ict court ruled that Shamaeizadeh’s claims relating to the alleg ed i llegal search, seizure, and Shamaeizadeh’s subsequent

arrest were time b arred. The distr ict cour t also dismissedShamaeiza

deh’s ma

licious pr osecution claim, finding that

the officers were entitled to qualified im mu ni ty. Fina ll y, the district court declined to exercise pendent jurisdict ion over t he state law clai ms, dismissin

g them.

Shamaeizadehappealed the district court’s dismissal of his
ac tion. The Sixth Circ

uit reve rsed, an d the Supre

me Co ur t denied certiorari. Shamaeizadeh v. Cunigan , 182 F.3d 391 (6th Cir.), cert. denied, 528 U.S. 1021 (1999). When the c ase returned to the district court for discovery , the di st rict court
a greed to exercise pendent jurisdiction over the stat e law claims.

The offic ers fi led a m otio n for j udgmen t on t he ple adings
or for summary judg

ment. The district court considered Shamaeizadeh’s “(1) 42 U.S.C. § 1983 claim based upon an illegal sear ch, seizur

e and wr ongful a rrest; ( 2) 42 U.S.C

. § 1983 claim for ‘misrepresentation’ and (3) . . . state law mali cious pr osecution claim.” J.A. at 396 (Op. & Order). The district court en te red summary judg ment for the defenda nts and dismi s sed Shama eizadeh’ s claims with prejudice.No. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 9

2 In Shamaeizadeh’ s feder al cri minal c ase, t he dist rict court ha d concluded that

Shamaeizadeh did not have any expecta ti on of priv acy in the basement apartment and therefore lacked standing to brin g a mot ion to suppress evidence s eized therein . Shamaei zadeh sough t to app eal this deter minatio n, but th e Six th Ci rcui t di smis sed t he appea l f

or la ck of jurisdict ion. United Stat es v. Shameizade h [sic], 41 F.3d 266 , 267 (6th Cir. 1994). Shamaeizadeh

timely appealed f

rom the di str ict court’s order e ntering final judg

ment in fa

vor of the defenda nts.
II. ANALY SIS

We review a district court’s order granting summary judgment de novo. Rannals v. Diamond Jo Casino , 265 F.3d 442, 447 (6th

Cir. 2001), cert. denied, 534 U.S. 1132 (2002). Summary judgment is app ro priate “ if the ple adings, depositions, answers to interrogatories, and admissions on file, togethe

r with the affida vits, if any, show that

there is no genuine issue as to any

material fact.” Fed. R. Civ. P. 56(c). A dispute ov er a mate

rial fac t is not c onsidered “genuine” unless a reasonable jury could return a ver dict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986) (quotation omitted). In deciding whe ther summary judgment was appropriate, we view a ll evidence in the light most favorable to the nonmoving party

. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 5 8 7 (1986).

A. Shamaeizadeh’s Standing to Challenge the Basem ent Searches

The district court

grante d summary

judgmen t to the officers
onShamaeizadeh’s § 1983 claims that the basement was illega lly searched, reasoning

that Shamaeizadeh did not have
a reasonable expectation of privacy in the ba sement apar tmen t. 2 Shamaeiza

deh conte nds that he

has stand ing to chall enge t h e basement searches because he owned the 10 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

basement and lived in close p roximity to it. He does not maint ai n, however , that the basemen

t was par

t of his residence.

To assert a Fourth Amendment violation, Shamaeizadeh must show that the government’s action in some way invaded his own rea sonabl e expectation of privacy

. United States v. Knotts , 460 U.S. 276, 281 ( 1983); Rakas v. Illinoi s , 439 U.S. 128, 143 (1978 ). We appl y a two-par t test to deter mine whether Shamaeizadeh h ada reasonable expectation of pr iv ac y, asking (1) whether Shamaei z adeh “man ifes t[ed] a subjective expectationof privacy in the premises searched”; and ( 2 ) whether society

is “prepared to recognize that expectationas legitimate.” Bonds v. Cox , 20 F.3d 697, 701 (6th Cir. 1994). Assuming that Shamaeizadeh mani f ested a subjective expe ct ationof privacy

because he owned the basement and lived in close proximity to it, society is not prepar ed t o recogn iz e that e xpec tati on as l egiti mate. Alth ough Shamaeizadehowned the enti r e residence, ownership alone does notjus tify a rea sonable expectation of privacy . The Supreme Court has c onsistentl

y he ld that privacy inter

ests are notcoterminous with one’s property rights. United

States v. S alv ucci , 448 U.S. 83 , 91 (1980 ) (“[W]hile property ownersh ip is cl ea rl y a

factor to be considered in determining whether an individ

ual’s Fo urth Amendment rights have been violated, property rig

hts are neither

the beginning nor

the end of this C our t’s inquiry.” (citation omitted)). I n deciding whether someone has a

reasonable expectation of privacy for Fourth Amendment purposes, cour t s consider a number of factors, including

the person’ s proprie

tary or posses sory

interest in th e place to be searched or item to be seized

. . . . whether the defendant has the right to exclude others from the place inquestion; whether

he had taken normal precautions to maintain his privacy; whethe

r h e has exhibited aNo. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 11

3 The Magistrat e Judge’s Proposed Findings of Fact and Recommendat ion were mad e in the context of a sup pressi on heari ng during the f

ed eral prosec uti on of S hamaei zadeh, Reed, a nd Ford. Although two state of

ficers t estif

ied at the suppressi on hearing, theywere
n ot parti es to t

he federa l cri minal a ction. Moreover, al thoug h Shamaeizadeh was a defendant in the cr iminal acti on, the dist rict judge determin ed that he lac ked sta nding to seek t he suppres sion of

evidence. Bec ause neit

her th e stat e offi cial s nor Shamaei za de h were parties t o the suppre ssi on hearin g, it would ord inarily be inapp rop riate for th is cour t to consider the magi stra te judge’ s fact ual f indin gs inthi s civi l act io n. Ho wever, bec ause both parties rely on th e ma gistrate ju dge ’s findings in their briefs befo re this co urt and neither p arty co ntests these fin dings, we may prope rl y co nsi der t hem. subjective expectation that the area would remain free fromgovernmental intru si on; and whether he was legitima tely on the pre

mises.

United States v. King , 227 F.3d

732, 744 ( 6th Cir. 200 0); see Hardwig v. United States , 23 F.2 d 922, 922 (6th Cir. 1928) (concludingthat a lessee who sublets pa rt of a building to a sublessee persona

lly has “ no right to object to evidence of what was found or done there”).

Alth ough Shamae iza deh had a proprietary interest in the basement of the residence, he has consistently stated that the basement apartment was maintained as a separate residence, indica t ing that he wa s not in poss ession of the base ment. When the officers searched the residence, it was evide nt that the door between the main level and t he basement had been forced open. Moreover, Wiles’s testimony at the suppression hearing indicate s that even he recognized that the basement “was an apartment” and that, in l i ght of Schmitt’s explanations, “he understood the residence at 12 1 Millstone to consist of

a house with an apartment underneath it.” J.A. at 37 (Mag istrate Jud

ge’s P roposed Findings of Fact and Recommendation) (q

u otations and brackets omitted). 3 Therefore, Reed and Ford

had the right to exclude others from the basement, but Shamaeizadeh did not. Shamaeizadeh took 12 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

no precautions to maintai

n any privacy interest he might have had in the basement when he leased the basement to Reed and Ford and perm itted them to occupy

it as a separate residence. More over, Shamaeiza

deh did no t exhibit “a subjectiv e expe ctationthat the area would remain free fr om governmentalintrusion.” King , 227 F.3d at 744. Therefore, inlight of thesefactor s, Shamaeizadeh had no expectation of privacy in the basement of the residence; any expectation of privacy in the basement belonged solely to t he lessees, Ford and Reed.

Becau se Sham ae izadeh had no reasonable expectation of privacy in th e basemen

t apartme nt and has

no standin

g to claim a constitutional violation on behalf of either lessee, the districtcourt did

not err by g

ranting summary judgmen t to the defenda nts insofar as Shamaeizadeh’s clai ms seek damages for the base ment sea rches. Th erefore, we will consider Shamaeizadeh’s other cl a im s only in the context of the searches of the main floor of the residenc e. B. Qualified Immunity According to th e d oc tr in e o f q ua li fi ed im mu ni ty, “government

officials performing discretio nary func tions gener ally are shie lded fro m liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constituti onal rig

hts of whic

h a reas onable pe

rson woul d have known.” Har low v . Fitzgera ld , 457 U.S. 800, 818 (1982). We undert

ake a thr ee-ste p analy sis of qualified immunity claims:

Fir st, we dete

rmine whe

ther, ba sed upon the applic able law, the facts viewe d in the light most favorable to the plaintiffs show that a constitutional violation has
occurr ed

. Second, we consider whether the violation involved a clea rly established constitutional right of whicha reasonable pe

rson woul d

have known. Third, we determine whether the plaintiff has offered suffic i e ntNo. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 13

e vide nce to indica

te that what the of

ficial a lleged ly d id
was objectively

unreasonable in l ight of t he clea rly established consti

tutional r ights.

Feathers v. Aey , 319 F.3d 843, 848 (6th Cir. 2003) (quotation omitted); see also W

illiams v. Mehra , 186 F.3d 685, 691 ( 6th Cir. 1999) (en banc).

For a ri ght to be clea

rly established, “[t]he contours of the right must be sufficiently clea r that a r ea sonable official would understand that what he is doing violat e s that right.” Anderson v. Creighton , 483 U.S. 635, 640 (1987 ); see Russo

v. City of Cinc innati , 953 F.2d 1036, 1042 (6t h C ir. 199 2). In other words, the unlawfulnes s mus t be apparent under preexisting law. The unlawfu lness o f an action may be apparent in light of “direct holdings, from specific examples described as prohibited, or from the gene ral reasoning that

a court employs.” Feathers , 319 F.3d at 848. “[O]fficials can still be on notice that their con du ct violates established law
even in novel factual circumstances.” Hope v. P elzer , 536 U.S. 730, 741 (2002); see Russo , 953 F.2d at 1042 (“[I]t need notbe the case that

the very a

ction in question has prev iously been held unlawful.” (quotation omitted)).

1. The Second and Third Warrantless Searches

Shamaeizadeh

argue s that the district court erred by dismissing his § 1983 claim that the second and third searches of the main floor of the residence were unc onstitutional on the groun d that these searches “were of no consequence and at best c onstitute harmless error.” J.A. at 405 (Op. & Order). The district court did not determ ine th e constitutionality of the searches, inste ad reas oning tha t Shama eiza deh fail ed to allege aninjury for § 1983 purposes because the information gathered during the seco nd and third searches was purge d fromthe affidavit supporting the subsequent search warran ts. But Shamaeizadeh did allege an injury with respect to the second and third

searches: a § 1983 plaintiff can seek 14 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

4 The distri ct court below and the distr ict court dur in g the cr iminal proceedings conc luded that th e second and third searches were

unco nstitutio nal. However, Shama eizadeh cannot collaterally estop the of ficers from relit igating t his is sue because the offi cers — “the part y against whom e stopp el is soug ht” — did no t have “a full and fair opp ortun ity to l it igat e th e is sue” duri ng the su ppress ion hearin g. De troit Police Officers Ass’n v. You ng , 824 F.2d 51 2, 515 (6th Cir. 1987). Although two d efend ants in the curre nt action — W iles and Cun ig an

— test ifi ed at the supp ression hearin g, neithe r they no r the oth er de fenda nts in the pre sent a cti on had a n opportunity ful ly and fai rly t o liti gate the iss ue. Furt

hermor e, t

he of fi cers , the Ric hmond Poli ce Depa rt ment, and the City of Richmond are no t in privity with the fede ral gov ernm ent, which was a p arty to the first ac tion. See United State s v. Wh ite , Nos. 91- 2005, 91 -209 0, 91-2168, 91-2169, 91-2308, 91-2403, 1994 WL 70855, at ** 10 (6th

Cir. March 3, 1994) (“ [I] t wou ld b e a str etch t o say t hat federal pro secuto rs are in p rivity with an exclusivel y stat e prosecution.”), cert. denied , 513 U.S. 861, 513 U.S. 949 (19 94); cf. Su nsh ine A nthra cite Coal Co. v. Adkins , 310 U .S. 381, 402 (194 0) (“There is pri vity between officers of

the s ame government .”). The factthat t he federal government

re lied on e viden ce f

rom st ate off

icer s i n a f

ederal proceeding does not damages for pain , suffer

ing, emb arrass ment, and

humiliation. Memphis Cmty . Sch. Dis t. v. Stac hura , 477 U.S. 299, 307 (1986) (explaining that a § 1983 plaintiff c an see k compensatory

damage s for “imp airment of rep utation . . ., personal humiliation, and mental an gu ish an d suff ering” (quotationomitted)). Therefore, we mu st consider whether the officers areentitled to summary judgment on this part of Shamaeizadeh’s § 1983 ac tion on alte rnative ground s. Becau se the second and third searches were unconstitutional and the office

rs were not entitle d to qualifie d immunity with respect to this conduct, we reverse the district court’s grant of summary judgme

nt on this issue.

The officers contend that the second and third sear ch e s were constituti onal b e cause either (1) Schmitt gave
co ntinuing cons ent for the searches, (2) exigent cir cumstances
were present , or (3) the plain view doctrine applied. If any of these excep tions to the Fourth Amendment warrant require ment appl y, t he sear ches we re const itutional. 4No. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 15

bind the offi cers to the outcome of that proceeding. See United States v. Per chitti , 955 F.2d 674 , 677 (11 th Cir. 1992) (e xplainin g th at c ooperat ion between federal and stat e autho rities in the i nvestigat ion of a defendant does not neces sari ly es tabli sh pri vity between the f eder al a nd state governments); see also Fe ri na v. United States , 340 F.2d 837 , 840 (8th Cir.) (merely usi ng the fruits of federal i nvestigat ions in st ate proceedings “does not i nfect

the sep arate sovereignty of that prosecuti on, nor bind the fed eral gove rnme nt in any m anne r to the issu es so re solve d by the sta t e judg men t”), cert. denied , 381 U.S. 902 (1965).

5 Although they did not press the issue in their brief, the officers also suggest ed at oral ar gumen t that all thr ee warrantless s earches were actua lly components of a sin gle cons tit

uti onal sea rch. Thi s court has recogniz ed “that a s ingle search warrant may aut horize more than one a. Consent

Consentfrom an in

dividual who se property is to be searched or from a third party

who possesses co mmo n authority over the premise s validate s a sear ch that wo

uld otherwis e be considered unreason a ble and un constituti onal. United States v. Matlock

, 415 U.S. 164, 171 (197 4). However, even when a sear ch is authorized by

consent, “the scope of the search is limited by the terms of i

ts authorization.” Walter v. United States , 447 U.S. 649, 656 (1980). The Supreme Court has explained that “the scope of
a suspect’s consent under the Fourth Amendment” turns on what “the ty pical re asonable

person [would] have understood by t he exc hang e bet

ween the o ffic er an

d the suspe ct[. ] ” Florida v. Jimeno , 500 U.S. 248, 251 (1991). As long as an officer has an objectively r

easonable belief that the search
was within the course

of consent, the search is valid. Id. But the Fourth A

mendme n t “requires that the scope of every authorized sear ch be particularly described.” Walter , 447 U.S. at 657. The officers sugge st that we should conclude that Schmit t provided continuing consent which authorized all three
warran tless searches. 5 The polic e conten d that, as a historical 16 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

entry into the p remise s identif ied in [a] warrant, as long as the second entry is a r easonable c ontinuati on of th e origi nal se arch.” United States v. Keszthel yi , 308 F.3d 557 , 568 (6th C ir. 2002). Although we hav e not prev iously appli ed Ke sz thelyi in t he cont ext of a s earchjus ti fi ed on groun ds other th an a w arran t, it i s cl ear t hat regar dles s of

the sour ce of autho rity for a searc h, a search ends when subsequent entries into the identi fiedpremises are not reasonable continuat ions of the ori ginal search. Thu s, if the fir st searc h was c onstitutio nal be cause Schm itt conse nted to it, the search ended when it exceeded the scope of her consent to t he offi cer ’s search f

or a possi ble in truder. Simil arly , if the f irst search w as const it uti on al beca use ther e were exigen t circum stance s, see infra , th at search ended wh en t he of fi cers be gan t o search for drugs rather t han a burglar. See Mincey v

. Ariz ona , 437 U.S. 385 , 393 (1978 ) (explaining that a search justified by exigent circum stances i s str ictly cir cumscri bed by the emergencythat

just ifi es it). The fa ct that Wiles c alle d in addit ional officers with

drug ex peri ence suggests t hat the searches f

or drugs and drug parapherna l ia were new se arche s, rather th an rea sona ble continuations of

the constit

utional search f

or a burglar. matter, once con sent i s granted in Kentucky , it must be expressly revoked

. Appellees’ Br. at 23 (citing as support Sm ith v. Common wealth , 246 S.W. 449, 451 (Ky. 1923), whichheld that consent cannot be revoked once a se arch has begun). Some states have recognized a principle of continuing consent, which allows officers to e xecute
su bsequen

t, closely-re lated searches in the absence of a n objectionbecause the absence of objection per mits an inference that the initial consent continued. See, e.g., State v. Luther , 663 P.2d 1261, 1263 (Or. Ct. App. 1983), aff’d , 672 P.2 d 6 91 (Or. 1 983); Phillips v. State , 625 P.2d 816, 818 (Alaska 1980). But

even if we were to recog nize a prin

ciple of continuin

g conse nt th at m ight extend throughout three separa te searches closely

related in time and purpose, the second and third searches exceeded the scope of Schmitt’s initial consent.
The office

rs could n ot have ha

d an objec

tively reasona ble be lief that the second and third searches were within the
course of Schmitt’s consent. Schmitt clearly consente d toNo. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 17

Wi les’s fir st searc

h of the pr

emises when she asked him to search for an in

truder. But the o fficers do not ass ert t ha t Schmitt explicitly consented to thesecond or third search. In fact, they admi t tha t they did not expressly request her consent when addi tional officers arrived to search the residence and that they do not reca ll Schmitt expressly articulatingany such conse nt of her own volition. Schmitt’s request that Wiles search

the residence for a burglar does not objectively indicate c onsent for Wiles t

o call in a supervisor and execute a second search

or for Wile s and a sup ervisor to callin office

rs with mor

e experie nce in de te ct ing drug s to execute a third search. Because the second and third searches
ex ceeded the scope of Schmitt’s consent, they we r e unconstit utional. b. Exigent Circumstances

The office

rs als o maintain that the second and third
sear ches were constitutional because they were execut e d

u nder exigent circumstances. Warrantless entries are permitted under exigent circu

mstan ces, which “exist where there are real immediate and serious consequences that would certain ly occur werea police officer to postpone action to get
a warrant.” Ewolski v. City of Brunswick , 287 F.3d 492, 501 (6th Cir. 2002)

(quota tion s and bra

ckets omit

ted). As w

ith the consent e

xception to

the warrant requirement, we measur e exige nt circumstan ces by a sta ndard of objective
reasona bleness, asking “whether the fact s are such that an objectiv ely

reason a ble offic er conf ronted with the same circumstanc es could reasonably believe that exigent circumstances existed.” Id. Exigent c ircumsta nces ty pically exist in one o f three

situations : officers arein hot pursuit of
a suspect, a

suspect represents an immediate threat to officers and the pu

blic, or “ immediate

police a ction [is] ne cessar

y to prevent the destruction of vital evidence or thwart the escape of known c ri minals.” Hancock v. Dodson , 958 F.2d 1367, 1375 (6th Cir. 1992). 18 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

No one contests

that Wiles’s initial search of the residence
was conducted in the face of exigent ci rcumstan ces. Wiles
was dispatched to investigate a possible burglary and believed the burgla

r might st

ill be pre sent in

the resi dence. The officers now claim that the second and third searche s were necessary b ecau se the burglar may have been hiding behind locked doors. However, at the suppression hearing in the federal criminal trial, Wiles tes tified “that he called for backup not because he suspected that a burglary had occurred
or because he suspected that a burglar may still be pr

esent in the residence, but be cause w hen he wa

lked intoth e downstairs portion of t he r esidence he smelled what he suspect edto be growing ma rijuana .” J.A. at 5 0 (Magi strate Judge’s P rop osed Findings of Fact and Recommenda tion). Moreover , Wi les’s present claim that he sought backup for the purpose of looking for a possible intruder is inconsistent with the off ic ers’ decision to search the entire residenc e again, rather than simply

to investigate the locked rooms that Wiles had been unable to enter. Most importantly , the fact that the officers called in

narcotics experts to conduct the third search drastica lly undercu ts the off icers’ c laim that t

he possible presence of an intruder cr eated exigent circumstances justifying a third search. Th ese facts are such that an objectiv ely

rea s onable of

ficer c ould not ha

ve reas onably believe d that the

re were exigent c ircumsta

nces.
The officers’ suspicion that marijuana

was bein g grown in the residence alsofailed to create new exigent circumstanc es justifying a search. During the second and third searches, the officers were not in hot pursuit of a suspect, threa ten ed by a suspect, or attempting to thwart the esca pe of a known crim inal. The only

argua ble exige nt circu mstance in this context was a possible need to prevent the destruction of vital evidence. But the officers cannot arg ue that they were attempting to prevent the des tr uction of vital evidence because they were

not even certain of wh at evidence they
were searching for at the time — the second a n d thir d searches were fishing expeditions for evidence of a dr ugNo. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 19

crime. Thus, new exigenc ies did n ot arise to justify the second a nd third se arches

. Beca use the exigencies justifying the first search did not continue and bec ause new exigenc ies did not

arise to justify t he second and third searches, we cannot c onclud e tha t exigent c ircumstances justi fied the otherwise unconstitutional searches.
c. Plain View

Fi na ll y, the offic ers maint ain that their warrantless second and third searches of the residence we re justified

by t he plain view do ctrin e because drug para phernalia was in plain view during the second and third searches. To invoke t h e plain view doctrine, evidence must be “(1) in plain view; (2) of a character that is immediately incriminating; (3) vie wed by an office r lawful ly located in a place from where the object can be seen; and (4) seized by an officer who has a lawful rig ht of
access to the object itself.” United Sta tes v. Roa rk, 36 F.3 d 14, 18 (6th Cir. 1 994 ). Although the plain view doctrine
wou ldlikely

have just

ified Wile s’s seizur

e of immed

iately incriminating drug paraphernalia during the fi r st searc

h, it clearly cannot justify the second a nd third searches. For the exceptio n t o apply, an off icer seizing an item in plain view

m ustb e “lawfully loc ated.” Because the offic ers were not lawfully inthe residence during the second and third searches, the plain v iew doc trine cannot serve to constitutionalize an otherwis e impr oper search. We therefore conclude tha t the officers would viola

te Shamae izadeh’s

consti tut ional rig

hts by seizing it

e ms i n plain view while the officers were unlawfully prese

nt in Shamaeizadeh’s residence.

Becau se none of the three asserted exceptions apply, we conclude that the officers arenot entitled to summary judgment on grounds that the second and third searches were constituti onal. In fact, there is no genuine issue of materia l fact about the constitutionality of the second and third 20 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

searches; even when viewed in the light most favorable to the office rs, the facts indicate that these searches we re unconstit utional. Furthermore, the officer s are not entitled to qualified immuni ty with respect to this aspect of Shamaeizadeh’s § 1983 claim because their un c onstitutional conduct “involved a clearly estab l ished constitutional right of which
a reasonable person

would have known.” Feathers , 319 F.3d at 848. At the time of the searches, the Supre m e Court had clearly stated that the justification for a search determines its appropriate scope:

The manner in which the seizure and search wer e conducted

is, of cou

rse, as v ital a p art of the inquiry a s whether they were wa rrante d at all

. . . . [E]vidence may notbe introd

uced if i t was discovere d by means of a seizure and search

which we

re not re asonably

related in scope to the justification for their initiation. Terry v. Ohio , 392 U.S. 1, 28-29 (1968). A reasonable person would have known that the “scope of [a] search is limited by the terms of its authorization,” Walter , 44 7 U.S. at 657. Moreover, it was cle ar th at “ [w]hile exigent circumstances may justify police c onduct t

hat would otherwise be
unreasonableif undertaken without a warrant, such co ndu ct must be strictly circumsc

ribed by the exige

ncies which justify its initiation,” Segura v. United States , 468 U.S. 796, 823 (1984 ) (quotation omitted). A reasonable officer there fo r e could not have objectively c onsidered the con sen t or exigencies purporte dly

justify ing the warrant

less sea rch to have extended beyond Wiles’s initial search of the residence. Finally, bec ause it was also clearly established

that the plain view exception cannot serve to j ust ify an other

wise unconstitutional search , we must c onclude t hat the of ficers’ second and third wa

r rantless searches violate d a clea rly established

constitutional right

of which a reasonable person would have known. Shamaeizadeh “has o ffered sufficientNo. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 21

evidence to indica

te that what

the official[s] allegedly did wa s o bjective ly

unreasonable in l ight of t he clea rly establis he d constitutional rights.” Feathers , 319 F.3d at 848. Therefore, we reverse the district court’s grant of summary judgment on this issue, and

we conclude that the officers are notentitled to summary

judgment on Shamaeizadeh’s § 1983 claims pertaining to the second and third searche s either on the merits or

on grou nds of qua

li fied i mmunity. I

n fact, we conclude that the second a nd th ird searches were unconstit utional.

2. Probable Cause for the Warrants
Shamaeizadeh

argu es that the

district c ourt err

ed in concludingthat Cunig an’s af fidavit provided probable cause for the first warrant to search the main floor. The distri ct court concl uded that there was sufficient legally acquired informationin Cunigan’s redacted affidavi t to establi sh probable cause. I n doing s o, the dist

rict co urt ignored the SixthCircuit’s ob ser vation in dicta during review of the earlier cr im in al pr oc ee di ng s t ha t “ [c ]u ri ou sl y, the magistr ate
never recommende d re dacting Cunigan’s entire statement fromthe aff

idavit, even

though it appears to be the fruit of an illegal search.” United States v. Shamaeizadeh , 80 F.3d 1131, 1137 n.3 (6th Cir. 1996). Although the Sixth Circuit has previous ly

discusse d this issue, a discussion occurring in the
c onte xt of a fed

eral cr iminal ca se is not bin

ding on the state officers who are parties to this civil action

. Nevertheless, S hamaeizadeh

urges u s to adopt t

he view a rticulat ed by th e Sixth Circuit in t

he prior criminal appeal a nd arg ues th at al l evidence in Cuniga

n’s aff id av it was poisonous fruit of the unconstitutional second and third searc hes, such that the entire affidavit should be rejected.

The Fo urth A mendment

provides that “no Wa

rrants shall issue, but upon probable cause, supported by O ath or affirmation, and particularly describing the place to be 22 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

searched, and the perso ns or t hings to be seize d.” U.S. Const. amend. IV. An affidavit on which a search warrant is issued need not refle ct direct persona l observa tions of the

affian t if the hears ay info rmation is derived from a credible source. United States v. Ventresca , 380 U.S. 102, 108 (1965). When decidingwhether to issue a search warra nt, amag istrate simply must “make a practical, common-sens e decision whether, given

all the ci rcumstan ces set f orth in the af fidavit before him, including the ‘veracity ’ and ‘basis of knowledge’ of persons suppl ying he arsay informat ion, ther e is a fa ir probabil ity

that con traban d or evidence of a crime will be found in a particular place.” Illinois v. Gates , 462 U.S. 213, 238 (1983). Therefore, we must determine whe ther Cunigan’s affidavi t established a fair probability that evide nc e of a crime would be found at the residence. Cunigan’s affidavit set fo rth t he following information ab ou t S ha ma ei za de h’ s s us pe ct ed dr ug ac ti vi ty:
Onthe 14th[ ]day of March, 1994, at approxima tely 8:34, the Richmon d Police De partmen t receiv ed a cal l [from] Teresa Schmidt

[sic] of 121 Millstone Drive, and Ms. Schmidt [sic] reported that there had been a burglary at her r esi dence. Officer Mark Wiles responded to the alleged burglary and upon entering the residence a nd beginning the investigation Officer Wiles along with Sgt. Sa m Manley and Asst. Chief Way ne Grant observe d
numerous items of drug paraphernalia, partially smoked marijuana cigaret tes, p lasti c bag con taini ng sev eral different types of what a

ppeared to be prescription p ill s and plastic b ag c ontaining what readily appeared to be suspected marijuana. At thistime Iwas contacted and I went to the re sidence

where I als o ob served t

he same items. While in the residence, I de tected a stron g odor of growing marij uana both upstairs and downstairs. Several of the rooms in the residen ce were locked and we we re unable to look inside

them.No. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 23

According

to Schmidt [sic], som e of the other occupa nts of the house are growing marijuana inside the house. From under the door of

one of the locked rooms, I could see a strong florescent [sic] light glow.

J.A. at 587 (Cunigan Aff.). We cannot consider some of the informationincluded in Cunigan’s affidavit, however, because “[t]he exclu sionary

rule prohibits i n troduction into evidence . . . of tes t im ony conce rning knowledge acquire d during anu nlawful search.” Murray v. United States , 487 U.S. 533, 536 (1988).

Alth ough the se cond and third searches were unconstit utional, the searches of the b ase ment viola ted only Reed’s and Ford’s co ns titutional rights. “[A] court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defe ndant’s
owncons titut ional rights,” meaning that the challeng ed
con duct invaded the defendant’s expectation of privacy

. United States v. Payner , 447 U.S. 727, 731 (1980) (citing Rakas , 439 U.S. at

138). In this context, the evidence seized fromthe basement during the second and third searches of the basement did not invade Shamaeizadeh’s expec ta tion of pr iv ac y. Theref

ore, i n dete rmini ng w h ether pr obable c ause was present for issuance of the first sear ch warrant, we need notredact Cunigan ’s affid

avit to excl

ude all ev idence that was seized during the second and third searches in violation of someone’s constitutional rights. Rather, we exclude from the affida viton ly evidence

gathered from the main floor of the house in violation of Shamaeiz adeh’s constituti onal rig

hts.

Most of the statements in Cunigan’s affida vit rel y on evidence seized

from the basement

of the residence, and need not b e redacted in Shamaeizadeh’s case. The refore, i n evaluatingthe existence of probable cause for the issuance of th e first sea

rch war rant, we can con sider Cuni gan’s s tatement s about dru gs and drug parapher nalia in the basement and the 24 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

strong fluorescent-light

glow under

one of the locked do ors in the basement. As the district court noted, Cunigan also was entitled to rely on “Schmitt’s statement that some of the other occupa nts of the house were growing mar ijuana.” J.A. at

403 (Op. & O rd er ). Cu ni ga n c ou ld al so re ly on Wile s’s observations of

the smell in the basement for the purpose of establishing probable

cause, b

ut we must r

edac t from Cunigan ’s a ffidavit any suggestion that Cunigan detected a strong scent of marijuana on the main floor of the residence because the second and third searches of the main floor were unconstit utional. Upon cons i dering this evidence, we conclude that the informati on re maining in the redacted affida vit did establ ish a “fair probability tha t contraband or evidence of a crime” would be fou nd in th e basement residence. Gates , 462 U.S. at 238.
Si mi la rl y, the evidence in Telek’s affidavit that was filed in support of the se cond war

rant esta blished a “fair probabilit

y that contraband or evidence of a cr ime” would be found in the basement residence. Gate

s , 4 62 U.S. at 238. Telek’s affida vit was identical to Cun i gan’s, with the exception of one additional paragraph that explained,

Based on the forgoing [sic] information a Search Warrant
was secured for the premises and over 39 0 marijuana plants were recovered from the residence

. Accord ing to the Chief of Police, also found during the search, was a receipt reflecting that Ali [Shamaeizadeh] purch a sed
some lights and a blower. From my experience , thes e types of items would commonly be used in t he type of gro wing operati on as was discover ed here on Millst on e Drive.

J.A. at 591 (Telek Aff.). Inaddition to the evidence excluded fromCunigan’s affidavit, Sham aeizadeh’s receipt for the purchas e of lights and a blower should be excluded from Telek’s affidavit be cause it is unclear whether the officers seized this evidence f

rom th e basement or the main floor ofNo. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 25

the residence. The 390 ma rijuana plants were seized from the basemen t, so Shamaeiza

deh does not have s tanding

to chall enge their inclusion in the affidavit. As wi th t he first
warran t, we con clude t hat the evidence in Telek’s redacte d affida vit was suff icient toprovide probable cause for a second
warran t, at leas t with res

pect to th e baseme

nt.
Alth ough the evi denc e discovered in the basement established

probable cause f or th e first

and second warr

ants to searc h t hat portion of the residence, the evidence disc overed

in the sep arate b asement apartme nt does not i n itself establish probable cause to search the entire house. “[W]hen the structure under suspicion is di vided into more than one occupa

ncy unit, probable cause must exist for each unit to be searched.” United States v. Whitney , 633 F.2d 902, 907 (9th Cir. 1980), cert. denied, 450 U

. S. 1004 (1981). Neither redacted affidavit establishes pr oba ble cause that evidence of a

crime would be found “in [the] particular place” inquestion — the main floor of the residence. Therefore, we conclude that the o fficers comm itted a constitu tional violation by search ing the e ntire re sidence

without pr

obable cause to do so and that this right was clearly established.

Even though the officers violated Shamaeizadeh’s clea r l y established

constitutional rights, they are neverth eless entitled to qualifie d immunity

if Sha maeizadeh has failed to offer sufficient evidenc e that the

office rs’ actions w ere obje ctively
unreasonablein light of

the clearly

established

constitutional rights. See Fea thers , 319 F.3d at 8 48. We conclude tha t, in light of the information available to the officers at the time of the search , it

was objectively rea sonable for them to believe that there was not

a distinct boundary

betwee n the two p arts of the residence.

The officers clearly

knew that two men lived in the basement apartment and

that they were

away on spring break. However, they

also had reason to believe that all occupants of the residence moved freely between the basement apartment 26 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

and the main floor. At the suppression hearing in the criminal case, Wiles testified that he discovered that the door between the two units ha

d been kic

ked open . J.A. at 36 (

Magistr ate Judge’s P roposed

Findings of Fact and Recommendation). At the same hearing, Wiles testified that Schmitt led him into the basement an d explained to him that although two men lived downstair s, “They don’ tmindme being down here; I use the phone on occasion,” suggesting tha t she wa s at li berty

to
move throughout the entire residence. J.A. at 37 (Magis trate Judge’s Proposed Findings of Fact andRecommendation) (quotationomitted). Befor e Wiles even

entere d the base

ment, he observed Schmitt “exiting through the back d oor of the downstairs portion of

the resid ence.” J.A. at 37 (M a g istrate Judge’s P rop osed Findings of Fact and Recommenda tion). Accord ing to Wile s, It appeared

. . . that [Schmitt] had free run of the house, with the exception of the locked rooms. She had even stated that she u sed the phone down t here of ten. She to ld
me it was fine to go down there. Even as I wa s in the back ya rd sear ching in th e bru sh for pos sible susp ects, she came and got me from the downstairs door.

J.A. at 453 (Wile s Dep.). This evid ence su gg ests that the officers reasonably

could have believed tha t all four
occ upa nts of the re sidence had acc ess to the

residence in its
en ti re ty. Therefore, it was objectively re ason able for the officers to conclude that they had proba ble cause for a warrant to search the entire house. Thus, the officers had prob able ca use for b oth

warran ts to search t he basement, and, as discus sed abov e, reas onably could have believed on the facts o f this cas e that this established

probable cause for searchesof the entire residence inligh t of the inf

orma tion a vaila ble to them a t the t ime. W e therefore conclud e t hat the officers are entitled to qualified immunity with respect to Shamaeizadeh’s § 1983 claim that the officers lacked probable cause for the first and secondNo. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 27

warr ants, and affirm the district court’s grant of summary judgmen t with res pect to th ese cla

ims.

3. Wrongful

Seizure D u ring Exec ution of the First Warrant
Sha maeizadehargues that the district court erred b y concludi n g that t he of fice rs did not un cons titut ionally seize items outside the sc ope of the first warrant. During the criminal case, the district court adopted the magistrate judg e’s finding that the officer s’ execution of the March 14, 1994, warrant went far bey ond its ter

ms when the

offic ers seized pa per records and receipts. The warr ant authorized th e office r s to search for “[a]ny and all illegally

possessed controlled

substances including marijuana, both growing and processed, and an y drug p ar apherna lia, also a

ny a nd all illega lly possesse d prescr

iptio n dru gs.” J.A. at 584 (1s t Warrant). Inaddition to

seizing these items , the off icers a lso
se iz ed nu me ro us do cu me nt s, re co rd s, an d p ie ce s o f j ew el ry. Seizing items beyond

the scope of a warrant’s authorization violates the F ourth Amendment rights of the subject of a search. Andresen v. Maryland , 427 U.S. 463, 480 ( 1976); see Brindleyv. Best, 192 F.3d 5 25, 533 (6 thCir. 1999) (reversing
a district court ’ s gr

ant o f summary

judg ment b eca

use “ [n]o
reasona ble of ficer in the defendants’ position could have believed that certain seized items were within the scope of the warrant or evide nce of a crim e”) . Generally , officers are obligated to secure an additional warrant if the y want to seize things no t include d in

a warra nt. However, where a warr ant justifies an officer’s initial intrusion and t he offic er “in the
course of the search come[s] across some other article of incriminating character,” the p lai n view doctrine may supplement

the prior justificationand perm it the war rantless seizure. Coolidge v

. New Hamp

shire , 403 U.S. 443, 465 (1971). 28 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

Under the plain view doctrine, officers may seize items not within the scope of the warrant where the evidenc e is “(1) in plain view; (2)

of a cha

racter that is immediate ly incri minat ing; (3) viewed by an officer lawfully

located in a place from where the object can be seen; and (4) seized by an officer who has a lawful right of acce ss to t he object itself.” Roark , 36 F.3d at 18. Assuming that the officers were executing a valid warrant and thus were leg ally in a place where they saw the jewelry and documents in plain view, the seizure of these items duringthe execution of the first warrant
was nevertheless unc onstitutional beca use their incriminating character is not immedia

tely apparent as an objective matter.

Indetermi

ning whether

probable cause is immediate ly apparen t upon viewing an object, this court has considered three f actors: (1) the nexus between the s eized obje ct and the items particularized

in the war

rant; (2) whether the intrin sic nature or appear ance of the seized

object gives prob able
cause to associate it with criminal activity; and (3) whether probable c a use is the direct result of the executing office r’s insta ntaneous sensory perceptions.

United Sta tes v . Calloway , 116 F.3d 1129, 1133 (6th Cir.), cert. denied , 522 U.S. 925 (1997). “[A]ssuming that there is probable cause to associate the property with cr imin al activity,” however, a p lain v iew seizur e is “pre sumptively reasonab le” and does not require an “unduly high degree of certainty.” Texas v. Brown , 460 U. S. 730, 741-42 (1983) (quotation and emphasis omitted).

The office

rs arg ue that pr obable c ause to seize the jewelry was immed

iately appare nt becau se they

reasona bly believed that the jewelry was derived from the proceeds of drug-re lated 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 requir ed toNo. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 29

establish probab le cause as to its association with criminal
ac ti vi ty, the item is not immediately incriminating.” Uni te d S tates v . McLeva in , 310 F.3d 434, 443 (6th Cir. 2002) (quotationomitted). Nothing about the intrinsic nature of the jewelry gave the officers ca

use to a ssociate it with the drug activity under investigation. Calloway , 11 6 F .3d at 1133. Becau se further

investig ation wou

ld be nec essary

to establi sh probable cause of the existen

ce of a r elationsh ip between the jewelry and illegal drugs or drug paraphe rnalia, we conclude that there was no clear

nexus between the jewelry seized “and the items par

ticulari zed in

the search warrant.” United States v. Beal , 810 F.2d 574, 576 (6th Cir. 1987).

The officers also maint

ain that probable

cause to seize the document s was immed

iately appare nt becau se the doc

uments suggested that Shamaeizadeh had multiple identities and was forging instrumen

ts in vio l ation of K

entucky law. With respect to the do cu ments, reasonable officers could not believe that prob able cause was apparent as a “direct re sult of the officer’s instantaneous sensory perception of the object.” Id. at 577 (quotation omitted). To have probable cause for associatingthe seized

document s wit

h possible criminal activit y, t he officers would have required fa r more than an instantto conclude that any of the documents implicated criminal activity. The

plain view exception therefore does not apply to the seizu

re of ei ther the jewelry or the doc

uments.
The officers violated a clearly established constitutional right of which reasona ble pers ons would

ha ve known — a right to be free of seizures beyond the sc ope of a war rant, in the absence of an exception to the warrant requirement such
a s the plain view doctrine. Moreover, the undi spute d evidence indicates that the officers’ seizure of documents and jewelry was obje ctively

unreasonablein light o f these c learly established

rights. Therefore, we conc lude that the of ficers
are not entitled to qualified immunity with respe ct to S ham aeizadeh’s claims of wrongful seizure, and that the 30 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

districtcourt erred by

granting summary

jud gme nt to the office rs reg arding

these cl aims.

C. Misrepresenta

tion & Fa

lse Arre st
Shamaeizadehexplicitly states that his misrepr ese ntation and false arrest claims hinge on this court finding tha t Shamaeizadehhas standing to challenge the s earch es of the basemen t. In fa ct, his en tire arg ument with

respec t to these two claim s is as foll ows:

Misrepre sentation

and Fal se Arre st The Court di smissed Appellant[’]s cons titutional clai m for misrepresentation by A

ppellees on the affidavit for a warrant by failing to put that

the house consisted

of two residen ces. The Cour

t felt that there was no causal connection

between the warrant searc h and the misrepresentation. Secondly , the Cour

t f el t that Appellant had no claim for false ar rest u nder §1983 because, again, there was no causal connection

between the arrest and

the improper search because Appe llant had no standing to complain about the basement search. Howeve r, if Appellant has standing, as argued above, to the basement search then the Court was in error concerning the issues and must be reverse d.

Sh amae izadeh Br. at 23-24. Because we conclude that Shamaeizadehdoes not have standing to contest the basement searches, we need not address his claims of misrepresentation and fals e arre st.
D. Malicious Prosecution
Shamaeizadehar gues tha t the distr

ict cour t erred in granting the officers summary

judgment on h is state law malicious prosecution claim as well. Under Kentucky law, there are six elements of malicious prosecution:No. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 31

(1) the institu

tion or continuation

of orig inal judic ial procee dings, either

civil or c riminal, or of administrative
or disciplinary proce edings, (2) by, or at the instance , of the plaintiff, (3) the terminat ion of such procee dings in defendant’s favor, (4) malice in the i n stitution of such procee ding, (5) want or lack of probable cause for the procee ding, and (6) the suffering of damage as a result of the pr oceedi ng.
Collins v. Williams , 10 S.W.3d 493, 496 (Ky. Ct. App. 1999) (quoting Raine v. Drasin , 621 S.W.2d 895, 899 (Ky. 1981)) ; see McMaster v. Cabinet for Human Re

s. , 824 F.2d 518, 520- 21 (6th Cir. 1987).

Shamaeizadeh

has faile d to demons trate th e initiation or maintenance of a proceeding ag ainst the plaintiff by the defenda nts. See William L. Prosser & W. Page K eeton, Prosser & Kee ton on The Law of Tort s § 119, at

871 (5th ed. 1984). Neither the of

ficers, the Ric hmond Polic e Depar tment,
nor the City of Richmond

were involved in the prosecution of Shamaeizadeh. Although two officers testified at th e supp ress ion hearing

during t

he criminal proce edings, Shamaeizadehdoes not co nt es t t ha t h e w as in di ct ed by a federal grand jury

and none of the defendants so much a s testified before the g

rand jury. Bec ause the initiation or maintenance of a proceeding by the defenda

nts is an element of malicious prosecution claims under Kentucky law, w e affirm the district co urt’s g

rant of summary judg

ment to the defenda nts with respect to Shamaeizadeh ’s st ate malicious prosecu tion claim

. E. Municipal Liability

We construe

Shamaeiza

deh’s § 19 83 claims a

gainst t h e officers intheir official capacity as claims against the City of Richmond. “[A] section 1983 action against a city official in hi s or he r official capacity is treated as an action against the City entity itself.” Barber

v. City of Salem , 953 F.2d 232, 237 32 Shamaeiz adeh v. Cu nigan et al

. No. 01-6326

(6th Cir. 1992). Shamaeizadeh also states a claim against the City of Richmond for

“fail [ing] or refus[ing] to supervise the training of

the other Defend ants or to cause them to be trained thus showing a deliberate indifferenc e to the violation of the
cons titutional rights o f the Plain tiff.” J.A . at 28 (2d

Am. Compl. ¶ 14).

To establish municipal liability pursuan t to § 1983, a plaintiff must allege an un con stitutional action that “impleme nts or executes a pol icy statement, ordinanc e, regulation, or decision

officially adopte d and promulgated by that body ’s offic ers”or

a “constitutional deprivation[] visited pursuant to g overn mental ‘custom’ even though such a custom has not

received formal approval through the body ’s official decisionmaki ng c hannels.” Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 690-91 (1978). On ly then can “ the actionof the municipality itself . . . be said to have ca used the harm.” Berry v. City of Det roit , 25 F.3d 1342, 1345 (6th Cir. 1994), cert. denied, 513 U.S. 1 111 (1995 ); City of Canton v. Harris , 489 U.S. 378, 385 (1989) (“[A] municipal ity can be found liable under § 1983 only where the municip ality itself
causes the constitut iona l violation at issue. Respondeat superior or vicarious liability will not attach under § 1983.”).

The Supreme C ourt h as lim ited § 1983 actions for the inadequacy

of police training, reasoning that “[o]nly where a municipality’s fa il ur e t o t ra in it s e mp lo ye es in a relevant respect evidences a ‘deliberate indiffer ence’ to the rightsof its inhabita nts can such a shortcoming be properly thought of as
a city ‘policy

or custom’ that is actionable under § 1983.” Harris , 489 U.S. at 389. There is no evidence that Richmond’s police- training policies d

emonstra te delibe rate indifference to Shamaeizadeh’s constitutional rights. The City of Richmond trains officers at Eastern Kentucky University’slaw enforcement program and the Department

of Justice’s basic trainingprogram, provides specific training on the execution o f s earche s and seizu res, and provides field officers with train ing man uals a nd a ma nual c ontai ning aNo. 01-6326 Shamaeiz adeh v. Cu nigan et al

. 33

black-letter-law

summary of sea

rch and seizure law. The defendant office rs comple

ted basi c t raining and were periodic ally

instructed on

de velopments in criminal law. Shamaeizadehhas faile d to set forth any facts s howing that the Cit y w as delibe

rately indiffer ent to the

training of its office rs. Furthermore, Shamaeizadehalso has failed to identify a ny specific custom, po licy , or prac

tice either with

respect to the office rs’ training or with re s pect to the officers’ searches of his residence a

nd se izure of items therefrom. He does not allege any

facts l inki ng t he condu

ct of indiv

idual off icers to
a policy of the City

of Richmond or its pol ice department. Therefore, we c onclude t hat the district court did not err by granting the City of Richmond summar y j udgmen

t with respect to this por

tion of Sha

maeizade h’s claim

. III. CONCL USION

For the reasons explained above , we REVERSE the district court’s grant of summary

judgment with respect to the second and thir d warran

tless sea rches, a nd with re spect to Shamaeizadeh’s claim that the officers exceeded the scope of the first search

warrant. We AFFIRM the district court on a

ll othe rgrounds. We REMAND for fur ther p roceed ings consistent with this opinion.