*

The Honorable David A. Katz, United States District Judge for the

Northern District of Ohio, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0238P (6th Cir.)

File Name: 03a0238p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ALI SHAMAEIZADEH,

Plaintiff-Appellant,

v.

JOEL CUNIGAN et al.,

Defendants-Appellees.

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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 ROGERS, Circuit Judges; KATZ,

District Judge.*

_________________

COUNSEL

ARGUED: David R. Marshall, Lexington, Kentucky, for

Appellant. Bryan H. Beauman, STURGILL, TURNER,

2 Shamaeizadeh v. Cunigan et al. No. 01-6326

BARKER & MALONEY, Lexington, Kentucky, for

Appellees. ON BRIEF: David R. Marshall, Lexington,

Kentucky, for Appellant. Bryan H. Beauman, Douglas L.

McSwain, STURGILL,TURNER, BARKER & MALONEY,

Lexington, Kentucky, for Appellees.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. PlaintiffAppellant Dr. Ali Shamaeizadeh (“Shamaeizadeh”) appeals

the district court’s grant of summary judgment for

Defendants-Appellees with respect to Shamaeizadeh’s § 1983

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

(“the residence”). An officer responded to the call and

searched the residence for the burglar. The officer then called

for assistance and conducted a second search with one of his

supervisors. After discovering evidence of drug paraphernalia

during the second search, the two officers called narcotics

experts to the scene to participate in a third search. Based on

the evidence discovered, the officers secured and executed

two search warrants for the residence. Shamaeizadeh was

indicted for federal drug violations, but the charges were

dismissed after the district court suppressed the evidence

seized from the basement of the residence.

Shamaeizadeh filed a § 1983 action including federal

claims and a state law malicious prosecution claim against the

City of Richmond, Kentucky, the Richmond Police

Department, and five individual officers (“the officers”) in

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

unconstitutional; (2) there was no probable cause for either
No. 01-6326 Shamaeizadeh v. Cunigan et al. 3

search warrant; (3) the officers exceeded the scope of the first

search warrant; (4) the officers included misrepresentations in

the affidavit supporting the second warrant; (5) the officers

arrested him without probable cause; (6) he was maliciously

prosecuted; and (7) the City of Richmond failed properly to

train and supervise its police officers. The district court

granted summary judgment to the defendants on all grounds.

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.

I. FACTS AND PROCEDURE

Shamaeizadeh owned a one-story house with a basement,

located at 121 Millstone Drive, Richmond, Kentucky. He

occupied the main floor of the residence with his fiancee,

Theresa Schmitt (“Schmitt”), and rented the basement to

Brian Reed (“Reed”) and Joe Ford (“Ford”). All four

residents of the house regarded the basement as a separate

apartment.

On March 14, 1994, Schmitt placed an emergency call to

the Richmond Police Department, reporting a possible

burglary of the residence. Officer Mark Wiles (“Wiles”) was

dispatched and arrived five minutes later. Schmitt met Wiles

at the front door, invited him into the residence, and walked

into the kitchen. She told Wiles that she had left the back

door open for her cats, and then had passed out on the kitchen

table after taking muscle relaxants and consuming a beer.

When Schmitt awoke, she noticed that her room key was

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

broken glass on the kitchen floor.

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

1

Shamaeizadeh conceded at oral argument 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.

Schmitt asked Wiles to search the residence with her, and

he proceeded to walk through the main floor of the residence.

Wiles discovered a locked door, but did not attempt to open

it because Schmitt said 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 days earlier. Wiles

later said that during this search he detected the odor of

growing marijuana.

After searching the main floor of the house, Wiles moved

onto a deck overlooking the backyard and searched the rear of

the premises. Meanwhile, Schmitt entered the basement

through the broken door, walked out through the back door of

the basement apartment, and met Wiles in the backyard.

Explaining that the occupants of the basement apartment were

away on spring break, she asked Wiles to check the basement.

Wiles proceeded to search the basement.

During his search, Wiles noticed that the basement

contained several rooms. Many of the doors were locked, and

Wiles did not attempt to open them. He did smell what he

thought was growing marijuana. After walking through the

basement, Wiles called Assistant Chief of Police Wayne

Grant (“Grant”) because he believed he needed the assistance

of a supervisor.

Wiles and Schmitt returned to the kitchen and waited for

Grant to arrive.1 Schmitt never asked Wiles to leave. While

they were waiting, Schmitt told Wiles that she believed the

“government” was the burglar. Wiles was thus inclined to

discredit Schmitt’s allegations of burglary. When Grant
No. 01-6326 Shamaeizadeh v. Cunigan et al. 5

arrived, Wiles briefed him about his activity thus far. Schmitt

participated in the conversation, informing the officers that

she would retrieve a key for the locked doors in the basement.

Wiles and Grant then conducted a second search of the

basement apartment. They did not ask Schmitt’s permission

to conduct the search. When they entered the basement,

Wiles again smelled what he suspected was marijuana. The

officers discovered small marijuana cigarette butts, known as

“roaches,” in an ashtray. They also found boxes of

fluorescent light bulbs under the apartment stairway and

observed fluorescent lighting in one of the locked rooms turn

on and off intermittently. They suspected that the fluorescent

lighting was being used to grow marijuana because it is often

used for that purpose. Schmitt arrived with a ring of keys, but

none of them fit the locked doors.

Wiles and Grant then called Assistant Chief of Narcotics

Bill Jesse (“Jesse”). They related their observations to him

and requested the assistance of an officer experienced in

detecting narcotics. Jesse dispatched Sergeant Joel Cunigan

(“Cunigan”) to the scene. Cunigan arrived at 9:20 p.m.,

approximately the same time that Wiles’s immediate

supervisor, Sergeant Sam Manley (“Manley”), arrived. Wiles

and Grant briefed Cunigan and Manley on the situation. Then

all four officers conducted a third search of the basement

apartment. They did not explicitly ask Schmitt’s permission

to conduct the third search, but Schmitt participated in the

walk-through of the basement.

When the officers entered the basement during the third

search, Cunigan smelled a strong odor that he believed to be

growing marijuana. The officers discovered a hemostat;

rolling papers; a plastic bag of what was suspected to be

marijuana, but was actually catnip; and a bag containing a

variety of pills. At this point, they advised Schmitt of her

rights. Schmitt stated her belief that Reed and Ford were

growing marijuana in their basement apartment. According

6 Shamaeizadeh v. Cunigan et al. No. 01-6326

to Schmitt, although she never saw marijuana, the scent was

so strong that she covered her vents to avoid it, particularly at

nighttime.

Cunigan called a state prosecutor and submitted a sworn

affidavit in support of his application for a search warrant. A

state court judge issued a warrant for the search and seizure

of “[a]ny and all illegally possessed controlled substances

including marijuana, both growing and processed, and any

drug paraphernalia, also any and all illegally possessed

prescription drugs.” Joint Appendix (“J.A.”) at 584 (1st

Warrant).

At 11:19 p.m., Cunigan returned to the residence with other

officers and an agent from the Drug Enforcement Agency to

execute the search warrant, conducting a fourth search of the

residence. The officers forcibly opened locked doors in the

basement apartment, finding and seizing 393 marijuana plants

and various pieces of growing equipment. In addition to the

drugs and drug paraphernalia, the officers indicated that they

seized “assorted paper records, receipts, bank records,

insurance records,tax papers, personal ledgers, jewelry.” J.A.

at 585 (1st Warrant) (notes on warrant).

On March 15, 1994, Detective John Telek (“Telek”) signed

an affidavit in support of a second warrant to search the house

and two vehicles found there. According to the warrant,

Telek was permitted to search for the following items:

1. Any and all illegally possessed controlled

substances to wit: Marijuana and any drug

paraphernalia;

2. Any and all tax records or documents reflecting the

income and/or sources of income of any of the

above named persons[;]

3. Any documents reflecting the purchase of drug

paraphernalia including the receipts for grow lights,

potting soil, fertilizer, plant pots, fans[.]
No. 01-6326 Shamaeizadeh v. Cunigan et al. 7

J.A. at 589 (2d Warrant). Shamaeizadeh claims that this

search warrant was drafted in an attempt to cover up the

illegal seizure of items during the execution of the first

warrant.

Upon the recommendation of the local Commonwealth

Attorney and a representative of the United States Attorney

for the Eastern District of Kentucky, the Richmond Police

Department turned over the evidence and prosecution of this

matter to the United States government. Shamaeizadeh,

Reed, and Ford were arrested and indicted for federal druglaw 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

with renting the basement apartment for the purpose of

unlawfully manufacturing, storing, or distributing marijuana

under 21 U.S.C. § 856. None of the officers who searched

Shamaeizadeh’s residence testified before the grand jury.

Shamaeizadeh, Reed, and Ford moved to suppress the

evidence seized pursuant to the first warrant. At the

suppression hearing, Cunigan and Wiles, the only officers

directly involved in Shamaeizadeh’s criminal prosecution,

testified. The magistrate judge concluded that Wiles’s initial

warrantless search of the residence was constitutional due to

exigent circumstances, but found the second and third

warrantless searches unconstitutional. The magistrate judge

recommended that Cunigan’s affidavit be redacted to reflect

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 main floor of the residence for illegal drug activity, but

not probable cause to support a warrant for the basement.

The magistrate judge therefore recommended suppressing the

evidence seized from the basement, and the district court

adopted this recommendation. The government appealed the

district court’s decision to suppress the evidence, and the

Sixth Circuit affirmed. United States v. Shamaeizadeh, 80

F.3d 1131 (6th Cir. 1996). The government then moved to

8 Shamaeizadeh v. Cunigan et al. No. 01-6326

dismiss the indictment, and the district court granted the

motion.

Shamaeizadeh brought a § 1983 action against the City of

Richmond, the Richmond Police Department, and five

individual police officers — Cunigan, Wiles, Manley, Telek,

and Grant — for damages caused by the illegal searches and

Shamaeizadeh’s subsequent prosecution. Shamaeizadeh also

claimed that he was maliciously prosecuted in violation of

state law. The officers filed a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6).

The district court ruled that Shamaeizadeh’s claims relating

to the alleged illegal search, seizure, and Shamaeizadeh’s

subsequent arrest were time barred. The district court also

dismissed Shamaeizadeh’s malicious prosecution claim,

finding that the officers were entitled to qualified immunity.

Finally, the district court declined to exercise pendent

jurisdiction over the state law claims, dismissing them.

Shamaeizadeh appealed the district court’s dismissal of his

action. The Sixth Circuit reversed, and the Supreme Court

denied certiorari. Shamaeizadeh v. Cunigan, 182 F.3d 391

(6th Cir.), cert. denied, 528 U.S. 1021 (1999). When the case

returned to the district court for discovery, the district court

agreed to exercise pendent jurisdiction over the state law

claims.

The officers filed a motion for judgment on the pleadings

or for summary judgment. The district court considered

Shamaeizadeh’s “(1) 42 U.S.C. § 1983 claim based upon an

illegal search, seizure and wrongful arrest; (2) 42 U.S.C.

§ 1983 claim for ‘misrepresentation’ and (3) . . . state law

malicious prosecution claim.” J.A. at 396 (Op. & Order).

The district court entered summary judgment for the

defendants and dismissed Shamaeizadeh’s claims with

prejudice.
No. 01-6326 Shamaeizadeh v. Cunigan et al. 9

2

In Shamaeizadeh’s federal criminal case, the district court had

concluded that Shamaeizadeh did not have any expectation of privacy in

the basement apartment and therefore lacked standing to bring a motion

to suppress evidence seized therein. Shamaeizadeh sought to appeal this

determination, but the Sixth Circuit dismissed the appeal for lack of

jurisdiction. United States v. Shameizadeh [sic], 41 F.3d 266, 267 (6th

Cir. 1994).

Shamaeizadeh timely appealed from the district court’s

order entering final judgment in favor of the defendants.

II. ANALYSIS

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 appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact.” Fed. R. Civ. P. 56(c).

A dispute over a material fact is not considered “genuine”

unless a reasonable jury could return a verdict for the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986) (quotation omitted). In deciding whether

summary judgment was appropriate, we view all evidence in

the light most favorable to the nonmoving party. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986).

A. Shamaeizadeh’s Standing to Challenge the Basement

Searches

The district court granted summary judgment to the officers

on Shamaeizadeh’s § 1983 claims that the basement was

illegally searched, reasoning that Shamaeizadeh did not have

a reasonable expectation of privacy in the basement

apartment.2 Shamaeizadeh contends that he has standing to

challenge the basement searches because he owned the

10 Shamaeizadeh v. Cunigan et al. No. 01-6326

basement and lived in close proximity to it. He does not

maintain, however, that the basement was part of his

residence.

To assert a Fourth Amendment violation, Shamaeizadeh

must show that the government’s action in some way invaded

his own reasonable expectation of privacy. United States v.

Knotts, 460 U.S. 276, 281 (1983); Rakas v. Illinois, 439 U.S.

128, 143 (1978). We apply a two-part test to determine

whether Shamaeizadeh had a reasonable expectation of

privacy, asking (1) whether Shamaeizadeh “manifest[ed] a

subjective expectation of privacy in the premises searched”;

and (2) whether society is “prepared to recognize that

expectation as legitimate.” Bonds v. Cox, 20 F.3d 697, 701

(6th Cir. 1994).

Assuming that Shamaeizadeh manifested a subjective

expectation of privacy because he owned the basement and

lived in close proximity to it, society is not prepared to

recognize that expectation as legitimate. Although

Shamaeizadeh owned the entire residence, ownership alone

does not justify a reasonable expectation of privacy. The

Supreme Court has consistently held that privacy interests are

not coterminous with one’s property rights. United States v.

Salvucci, 448 U.S. 83, 91 (1980) (“[W]hile property

ownership is clearly a factor to be considered in determining

whether an individual’s Fourth Amendment rights have been

violated, property rights are neither the beginning nor the end

of this Court’s inquiry.” (citation omitted)). In deciding

whether someone has a reasonable expectation of privacy for

Fourth Amendment purposes, courts consider a number of

factors, including

the person’s proprietary or possessory interest in the

place to be searched or item to be seized . . . . whether the

defendant has the right to exclude others from the place

in question; whether he had taken normal precautions to

maintain his privacy; whether he has exhibited a
No. 01-6326 Shamaeizadeh v. Cunigan et al. 11

3

The Magistrate Judge’s Proposed Findings of Fact and

Recommendation were made in the context of a suppression hearing

during the federal prosecution of Shamaeizadeh, Reed, and Ford.

Although two state officers testified at the suppression hearing, they were

not parties to the federal criminal action. Moreover, although

Shamaeizadeh was a defendant in the criminal action, the district judge

determined that he lacked standing to seek the suppression of evidence.

Because neither the state officials nor Shamaeizadeh were parties to the

suppression hearing, it would ordinarily be inappropriate for this court to

consider the magistrate judge’s factual findings in this civil action.

However, because both parties rely on the magistrate judge’s findings in

their briefs before this court and neither party contests these findings, we

may properly consider them.

subjective expectation that the area would remain free

from governmental intrusion; and whether he was

legitimately on the premises.

United States v. King, 227 F.3d 732, 744 (6th Cir. 2000); see

Hardwig v. United States, 23 F.2d 922, 922 (6th Cir. 1928)

(concluding that a lessee who sublets part of a building to a

sublessee personally has “no right to object to evidence of

what was found or done there”).

Although Shamaeizadeh had a proprietary interest in the

basement of the residence, he has consistently stated that the

basement apartment was maintained as a separate residence,

indicating that he was not in possession of the basement.

When the officers searched the residence, it was evident that

the door between the main level and the basement had been

forced open. Moreover, Wiles’s testimony at the suppression

hearing indicates that even he recognized that the basement

“was an apartment” and that, in light of Schmitt’s

explanations, “he understood the residence at 121 Millstone

to consist of a house with an apartment underneath it.” J.A.

at 37 (Magistrate Judge’s Proposed Findings of Fact and

Recommendation) (quotations and brackets omitted).3

Therefore, Reed and Ford had the right to exclude others from

the basement, but Shamaeizadeh did not. Shamaeizadeh took

12 Shamaeizadeh v. Cunigan et al. No. 01-6326

no precautions to maintain any privacy interest he might have

had in the basement when he leased the basement to Reed and

Ford and permitted them to occupy it as a separate residence.

Moreover, Shamaeizadeh did not exhibit “a subjective

expectation that the area would remain free from

governmental intrusion.” King, 227 F.3d at 744. Therefore,

in light of these factors, Shamaeizadeh had no expectation of

privacy in the basement of the residence; any expectation of

privacy in the basement belonged solely to the lessees, Ford

and Reed.

Because Shamaeizadeh had no reasonable expectation of

privacy in the basement apartment and has no standing to

claim a constitutional violation on behalf of either lessee, the

district court did not err by granting summary judgment to the

defendants insofar as Shamaeizadeh’s claims seek damages

for the basement searches. Therefore, we will consider

Shamaeizadeh’s other claims only in the context of the

searches of the main floor of the residence.

B. Qualified Immunity

According to the doctrine of qualified immunity,

“government officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). We undertake a three-step analysis of qualified

immunity claims:

First, we determine whether, based upon the applicable

law, the facts viewed in the light most favorable to the

plaintiffs show that a constitutional violation has

occurred. Second, we consider whether the violation

involved a clearly established constitutional right of

which a reasonable person would have known. Third, we

determine whether the plaintiff has offered sufficient
No. 01-6326 Shamaeizadeh v. Cunigan et al. 13

evidence to indicate that what the official allegedly did

was objectively unreasonable in light of the clearly

established constitutional rights.

Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (quotation

omitted); see also Williams v. Mehra, 186 F.3d 685, 691 (6th

Cir. 1999) (en banc).

For a right to be clearly established, “[t]he contours of the

right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987); see Russo

v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992). In

other words, the unlawfulness must be apparent under

preexisting law. The unlawfulness of an action may be

apparent in light of “direct holdings, from specific examples

described as prohibited, or from the general reasoning that a

court employs.” Feathers, 319 F.3d at 848. “[O]fficials can

still be on notice that their conduct violates established law

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

been held unlawful.” (quotation omitted)).

1. The Second and Third Warrantless Searches

Shamaeizadeh argues that the district court erred by

dismissing his § 1983 claim that the second and third searches

of the main floor of the residence were unconstitutional on the

ground that these searches “were of no consequence and at

best constitute harmless error.” J.A. at 405 (Op. & Order).

The district court did not determine the constitutionality of

the searches, instead reasoning that Shamaeizadeh failed to

allege an injury for § 1983 purposes because the information

gathered during the second and third searches was purged

from the affidavit supporting the subsequent search warrants.

But Shamaeizadeh did allege an injury with respect to the

second and third searches: a § 1983 plaintiff can seek

14 Shamaeizadeh v. Cunigan et al. No. 01-6326

4

The district court below and the district court during the criminal

proceedings concluded that the second and third searches were

unconstitutional. However, Shamaeizadeh cannot collaterally estop the

officers from relitigating this issue because the officers — “the party

against whom estoppel is sought” — did not have “a full and fair

opportunity to litigate the issue” during the suppression hearing. Detroit

Police Officers Ass’n v. Young, 824 F.2d 512, 515 (6th Cir. 1987).

Although two defendants in the current action — Wiles and Cunigan —

testified at the suppression hearing, neither they nor the other defendants

in the present action had an opportunity fully and fairly to litigate the

issue. Furthermore, the officers, the Richmond Police Department, and

the City of Richmond are not in privity with the federal government,

which was a party to the first action. See United States v. White, Nos. 91-

2005, 91-2090, 91-2168, 91-2169, 91-2308, 91-2403, 1994 WL 70855,

at **10 (6th Cir. March 3, 1994) (“[I]t would be a stretch to say that

federal prosecutors are in privity with an exclusively state prosecution.”),

cert. denied, 513 U.S. 861, 513 U.S. 949 (1994); cf. Sunshine Anthracite

Coal Co. v. Adkins, 310 U.S. 381, 402 (1940) (“There is privity between

officers of the same government.”). The fact that the federal government

relied on evidence from state officers in a federal proceeding does not

damages for pain, suffering, embarrassment, and humiliation.

Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307

(1986) (explaining that a § 1983 plaintiff can seek

compensatory damages for “impairment of reputation . . .,

personal humiliation, and mental anguish and suffering”

(quotation omitted)). Therefore, we must consider whether

the officers are entitled to summary judgment on this part of

Shamaeizadeh’s § 1983 action on alternative grounds.

Because the second and third searches were unconstitutional

and the officers were not entitled to qualified immunity with

respect to this conduct, we reverse the district court’s grant of

summary judgment on this issue.

The officers contend that the second and third searches

were constitutional because either (1) Schmitt gave

continuing consent for the searches, (2) exigent circumstances

were present, or (3) the plain view doctrine applied. If any of

these exceptions to the Fourth Amendment warrant

requirement apply, the searches were constitutional.4
No. 01-6326 Shamaeizadeh v. Cunigan et al. 15

bind the officers to the outcome of that proceeding. See United States v.

Perchitti, 955 F.2d 674, 677 (11th Cir. 1992) (explaining that cooperation

between federal and state authorities in the investigation of a defendant

does not necessarily establish privity between the federal and state

governments); see also Fe rina v. United States, 340 F.2d 837, 840 (8th

Cir.) (merely using the fruits of federal investigations in state proceedings

“does not infect the separate sovereignty of that prosecution, nor bind the

federal government in any manner to the issues so resolved by the state

judgment”), cert. denied, 381 U.S. 902 (1965).

5

Although they did not press the issue in their brief, the officers also

suggested at oral argument that all three warrantless searches were

actually components of a single constitutional search. This court has

recognized “that a single search warrant may authorize more than one

a. Consent

Consent from an individual whose property is to be

searched or from a third party who possesses common

authority over the premises validates a search that would

otherwise be considered unreasonable and unconstitutional.

United States v. Matlock, 415 U.S. 164, 171 (1974).

However, even when a search is authorized by consent, “the

scope of the search is limited by the terms of its

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 typical reasonable person [would] have understood

by the exchange between the officer and the suspect[.]”

Florida v. Jimeno, 500 U.S. 248, 251 (1991). As long as an

officer has an objectively reasonable belief that the search

was within the course of consent, the search is valid. Id. But

the Fourth Amendment “requires that the scope of every

authorized search be particularly described.” Walter, 447

U.S. at 657.

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

16 Shamaeizadeh v. Cunigan et al. No. 01-6326

entry into the premises 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 Cir. 2002). Although we have not

previously applied Keszthelyi in the context of a search justified on

grounds other than a warrant, it is clear that regardless of the source of

authority for a search, a search ends when subsequent entries into the

identified premises are not reasonable continuations of the original search.

Thus, if the first search was constitutional because Schmitt consented to

it, the search ended when it exceeded the scope of her consent to the

officer’s search for a possible intruder. Similarly, if the first search was

constitutional because there were exigent circumstances, see infra, that

search ended when the officers began to search for drugs rather than a

burglar. See Mincey v. Arizona, 437 U.S. 385, 393 (1978) (explaining

that a search justified by exigent circumstances is strictly circumscribed

by the emergency that justifies it). The fact that Wiles called in additional

officers with drug experience suggests that the searches for drugs and

drug paraphernalia were new searches, rather than reasonable

continuations of the constitutional search for a burglar.

matter, once consent is granted in Kentucky, it must be

expressly revoked. Appellees’ Br. at 23 (citing as support

Smith v. Commonwealth, 246 S.W. 449, 451 (Ky. 1923),

which held that consent cannot be revoked once a search has

begun). Some states have recognized a principle of

continuing consent, which allows officers to execute

subsequent, closely-related searches in the absence of an

objection because the absence of objection permits 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.2d 691 (Or. 1983); Phillips v. State, 625 P.2d 816, 818

(Alaska 1980). But even if we were to recognize a principle

of continuing consent that might extend throughout three

separate searches closely related in time and purpose, the

second and third searches exceeded the scope of Schmitt’s

initial consent.

The officers could not have had an objectively reasonable

belief that the second and third searches were within the

course of Schmitt’s consent. Schmitt clearly consented to
No. 01-6326 Shamaeizadeh v. Cunigan et al. 17

Wiles’s first search of the premises when she asked him to

search for an intruder. But the officers do not assert that

Schmitt explicitly consented to the second or third search. In

fact, they admit that they did not expressly request her

consent when additional officers arrived to search the

residence and that they do not recall Schmitt expressly

articulating any such consent of her own volition. Schmitt’s

request that Wiles search the residence for a burglar does not

objectively indicate consent for Wiles to call in a supervisor

and execute a second search or for Wiles and a supervisor to

call in officers with more experience in detecting drugs to

execute a third search. Because the second and third searches

exceeded the scope of Schmitt’s consent, they were

unconstitutional.

b. Exigent Circumstances

The officers also maintain that the second and third

searches were constitutional because they were executed

under exigent circumstances. Warrantless entries are

permitted under exigent circumstances, which “exist where

there are real immediate and serious consequences that would

certainly occur were a police officer to postpone action to get

a warrant.” Ewolski v. City of Brunswick, 287 F.3d 492, 501

(6th Cir. 2002) (quotations and brackets omitted). As with

the consent exception to the warrant requirement, we measure

exigent circumstances by a standard of objective

reasonableness, asking “whether the facts are such that an

objectively reasonable officer confronted with the same

circumstances could reasonably believe that exigent

circumstances existed.” Id. Exigent circumstances typically

exist in one of three situations: officers are in hot pursuit of

a suspect, a suspect represents an immediate threat to officers

and the public, or “immediate police action [is] necessary to

prevent the destruction of vital evidence or thwart the escape

of known criminals.” Hancock v. Dodson, 958 F.2d 1367,

1375 (6th Cir. 1992).

18 Shamaeizadeh v. Cunigan et al. No. 01-6326

No one contests that Wiles’s initial search of the residence

was conducted in the face of exigent circumstances. Wiles

was dispatched to investigate a possible burglary and believed

the burglar might still be present in the residence. The

officers now claim that the second and third searches were

necessary because the burglar may have been hiding behind

locked doors. However, at the suppression hearing in the

federal criminal trial, Wiles testified “that he called for

backup not because he suspected that a burglary had occurred

or because he suspected that a burglar may still be present in

the residence, but because when he walked into the

downstairs portion of the residence he smelled what he

suspected to be growing marijuana.” J.A. at 50 (Magistrate

Judge’s Proposed Findings of Fact and Recommendation).

Moreover, Wiles’s present claim that he sought backup for

the purpose of looking for a possible intruder is inconsistent

with the officers’ decision to search the entire residence 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

drastically undercuts the officers’ claim that the possible

presence of an intruder created exigent circumstances

justifying a third search. These facts are such that an

objectively reasonable officer could not have reasonably

believed that there were exigent circumstances.

The officers’ suspicion that marijuana was being grown in

the residence also failed to create new exigent circumstances

justifying a search. During the second and third searches, the

officers were not in hot pursuit of a suspect, threatened by a

suspect, or attempting to thwart the escape of a known

criminal. The only arguable exigent circumstance in this

context was a possible need to prevent the destruction of vital

evidence. But the officers cannot argue that they were

attempting to prevent the destruction of vital evidence

because they were not even certain of what evidence they

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

crime. Thus, new exigencies did not arise to justify the

second and third searches.

Because the exigencies justifying the first search did not

continue and because new exigencies did not arise to justify

the second and third searches, we cannot conclude that

exigent circumstancesjustified the otherwise unconstitutional

searches.

c. Plain View

Finally, the officers maintain that their warrantless second

and third searches of the residence were justified by the plain

view doctrine because drug paraphernalia was in plain view

during the second and third searches. To invoke the plain

view doctrine, evidence must be “(1) in plain view; (2) of a

character that is immediately incriminating; (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

access to the object itself.” United States v. Roark, 36 F.3d

14, 18 (6th Cir. 1994). Although the plain view doctrine

would likely have justified Wiles’s seizure of immediately

incriminating drug paraphernalia during the first search, it

clearly cannot justify the second and third searches. For the

exception to apply, an officer seizing an item in plain view

must be “lawfully located.” Because the officers were not

lawfully in the residence during the second and third searches,

the plain view doctrine cannot serve to constitutionalize an

otherwise improper search. We therefore conclude that the

officers would violate Shamaeizadeh’s constitutional rights

by seizing items in plain view while the officers were

unlawfully present in Shamaeizadeh’s residence.

Because none of the three asserted exceptions apply, we

conclude that the officers are not entitled to summary

judgment on grounds that the second and third searches were

constitutional. In fact, there is no genuine issue of material

fact about the constitutionality of the second and third

20 Shamaeizadeh v. Cunigan et al. No. 01-6326

searches; even when viewed in the light most favorable to the

officers, the facts indicate that these searches were

unconstitutional.

Furthermore, the officers are not entitled to qualified

immunity with respect to this aspect of Shamaeizadeh’s

§ 1983 claim because their unconstitutional conduct

“involved a clearly established constitutional right of which

a reasonable person would have known.” Feathers, 319 F.3d

at 848. At the time of the searches, the Supreme Court had

clearly stated that the justification for a search determines its

appropriate scope:

The manner in which the seizure and search were

conducted is, of course, as vital a part of the inquiry as

whether they were warranted at all . . . . [E]vidence may

not be introduced if it was discovered by means of a

seizure and search which were not reasonably 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, 447 U.S. at 657.

Moreover, it was clear that “[w]hile exigent circumstances

may justify police conduct that would otherwise be

unreasonable if undertaken without a warrant, such conduct

must be strictly circumscribed by the exigencies which justify

its initiation,” Segura v. United States, 468 U.S. 796, 823

(1984) (quotation omitted). A reasonable officer therefore

could not have objectively considered the consent or

exigencies purportedly justifying the warrantless search to

have extended beyond Wiles’s initial search of the residence.

Finally, because it was also clearly established that the plain

view exception cannot serve to justify an otherwise

unconstitutional search, we must conclude that the officers’

second and third warrantless searches violated a clearly

established constitutional right of which a reasonable person

would have known. Shamaeizadeh “has offered sufficient
No. 01-6326 Shamaeizadeh v. Cunigan et al. 21

evidence to indicate that what the official[s] allegedly did was

objectively unreasonable in light of the clearly established

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

not entitled to summary judgment on Shamaeizadeh’s § 1983

claims pertaining to the second and third searches either on

the merits or on grounds of qualified immunity. In fact, we

conclude that the second and third searches were

unconstitutional.

2. Probable Cause for the Warrants

Shamaeizadeh argues that the district court erred in

concluding that Cunigan’s affidavit provided probable cause

for the first warrant to search the main floor. The district

court concluded that there was sufficient legally acquired

information in Cunigan’s redacted affidavit to establish

probable cause. In doing so, the district court ignored the

Sixth Circuit’s observation in dicta during review of the

earlier criminal proceedings that “[c]uriously, the magistrate

never recommended redacting Cunigan’s entire statement

from the affidavit, 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

previously discussed this issue, a discussion occurring in the

context of a federal criminal case is not binding on the state

officers who are parties to this civil action. Nevertheless,

Shamaeizadeh urges us to adopt the view articulated by the

Sixth Circuit in the prior criminal appeal and argues that all

evidence in Cunigan’s affidavit was poisonous fruit of the

unconstitutional second and third searches, such that the

entire affidavit should be rejected.

The Fourth Amendment provides that “no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

22 Shamaeizadeh v. Cunigan et al. No. 01-6326

searched, and the persons or things to be seized.” U.S. Const.

amend. IV. An affidavit on which a search warrant is issued

need not reflect direct personal observations of the affiant if

the hearsay information is derived from a credible source.

United States v. Ventresca, 380 U.S. 102, 108 (1965). When

deciding whether to issue a search warrant, a magistrate

simply must “make a practical, common-sense decision

whether, given all the circumstances set forth in the affidavit

before him, including the ‘veracity’ and ‘basis of knowledge’

of persons supplying hearsay information, there is a fair

probability that contraband 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 whether

Cunigan’s affidavit established a fair probability that evidence

of a crime would be found at the residence.

Cunigan’s affidavit set forth the following information

about Shamaeizadeh’s suspected drug activity:

On the 14th[ ]day of March, 1994, at approximately

8:34, the Richmond Police Department received a call

[from] Teresa Schmidt [sic] of 121 Millstone Drive, and

Ms. Schmidt [sic] reported that there had been a burglary

at her residence. Officer Mark Wiles responded to the

alleged burglary and upon entering the residence and

beginning the investigation Officer Wiles along with Sgt.

Sam Manley and Asst. Chief Wayne Grant observed

numerous items of drug paraphernalia, partially smoked

marijuana cigarettes, plastic bag containing several

different types of what appeared to be prescription pills

and plastic bag containing what readily appeared to be

suspected marijuana. At this time I was contacted and I

went to the residence where I also observed the same

items.

While in the residence, I detected a strong odor of

growingmarijuana both upstairs and downstairs. Several

of the rooms in the residence were locked and we were

unable to look inside them.
No. 01-6326 Shamaeizadeh v. Cunigan et al. 23

According to Schmidt [sic], some of the other

occupants 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

information included in Cunigan’s affidavit, however,

because “[t]he exclusionary rule prohibits introduction into

evidence . . . of testimony concerning knowledge acquired

during an unlawful search.” Murray v. United States, 487

U.S. 533, 536 (1988).

Although the second and third searches were

unconstitutional, the searches of the basement violated only

Reed’s and Ford’s constitutional rights. “[A] court may not

exclude evidence under the Fourth Amendment unless it finds

that an unlawful search or seizure violated the defendant’s

own constitutional rights,” meaning that the challenged

conduct 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

from the basement during the second and third searches of the

basement did not invade Shamaeizadeh’s expectation of

privacy. Therefore, in determining whether probable cause

was present for issuance of the first search warrant, we need

not redact Cunigan’s affidavit to exclude all evidence that was

seized during the second and third searches in violation of

someone’s constitutional rights. Rather, we exclude from the

affidavit only evidence gathered from the main floor of the

house in violation of Shamaeizadeh’s constitutional rights.

Most of the statements in Cunigan’s affidavit rely on

evidence seized from the basement of the residence, and need

not be redacted in Shamaeizadeh’s case. Therefore, in

evaluating the existence of probable cause for the issuance of

the first search warrant, we can consider Cunigan’s statements

about drugs and drug paraphernalia in the basement and the

24 Shamaeizadeh v. Cunigan et al. No. 01-6326

strong fluorescent-light glow under one of the locked doors in

the basement. As the district court noted, Cunigan also was

entitled to rely on “Schmitt’s statement that some of the other

occupants of the house were growing marijuana.” J.A. at 403

(Op. & Order). Cunigan could also rely on Wiles’s

observations of the smell in the basement for the purpose of

establishing probable cause, but we must redact from

Cunigan’s affidavit 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

unconstitutional. Upon considering this evidence, we

conclude that the information remaining in the redacted

affidavit did establish a “fair probability that contraband or

evidence of a crime” would be found in the basement

residence. Gates, 462 U.S. at 238.

Similarly, the evidence in Telek’s affidavit that was filed in

support of the second warrant established a “fair probability

that contraband or evidence of a crime” would be found in the

basement residence. Gates, 462 U.S. at 238. Telek’s

affidavit was identical to Cunigan’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 390 marijuana

plants were recovered from the residence. According to

the Chief of Police, also found during the search, was a

receipt reflecting that Ali [Shamaeizadeh] purchased

some lights and a blower. From my experience, these

types of items would commonly be used in the type of

growing operation as was discovered here on Millstone

Drive.

J.A. at 591 (Telek Aff.). In addition to the evidence excluded

from Cunigan’s affidavit, Shamaeizadeh’s receipt for the

purchase of lights and a blower should be excluded from

Telek’s affidavit because it is unclear whether the officers

seized this evidence from the basement or the main floor of
No. 01-6326 Shamaeizadeh v. Cunigan et al. 25

the residence. The 390 marijuana plants were seized from the

basement, so Shamaeizadeh does not have standing to

challenge their inclusion in the affidavit. As with the first

warrant, we conclude that the evidence in Telek’s redacted

affidavit was sufficient to provide probable cause for a second

warrant, at least with respect to the basement.

Although the evidence discovered in the basement

established probable cause for the first and second warrants

to search that portion of the residence, the evidence

discovered in the separate basement apartment does not in

itself establish probable cause to search the entire house.

“[W]hen the structure under suspicion is divided into more

than one occupancy 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 probable cause that

evidence of a crime would be found “in [the] particular place”

in question — the main floor of the residence. Therefore, we

conclude that the officers committed a constitutional violation

by searching the entire residence without probable cause to do

so and that this right was clearly established.

Even though the officers violated Shamaeizadeh’s clearly

established constitutional rights, theyare nevertheless entitled

to qualified immunity if Shamaeizadeh has failed to offer

sufficient evidence that the officers’ actions were objectively

unreasonable in light of the clearly established constitutional

rights. See Feathers, 319 F.3d at 848. We conclude that, in

light of the information available to the officers at the time of

the search, it was objectively reasonable for them to believe

that there was not a distinct boundary between the two parts

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 Shamaeizadeh v. Cunigan 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 had been kicked open. J.A. at 36 (Magistrate

Judge’s Proposed Findings of Fact and Recommendation). At

the same hearing, Wiles testified that Schmitt led him into the

basement and explained to him that although two men lived

downstairs, “They don’t mind me being down here; I use the

phone on occasion,” suggesting that she was at liberty to

move throughout the entire residence. J.A. at 37 (Magistrate

Judge’s Proposed Findings of Fact and Recommendation)

(quotation omitted). Before Wiles even entered the basement,

he observed Schmitt “exiting through the back door of the

downstairs portion of the residence.” J.A. at 37 (Magistrate

Judge’s Proposed Findings of Fact and Recommendation).

According to Wiles,

It appeared . . . that [Schmitt] had free run of the house,

with the exception of the locked rooms. She had even

stated that she used the phone down there often. She told

me it was fine to go down there. Even as I was in the

back yard searching in the brush for possible suspects,

she came and got me from the downstairs door.

J.A. at 453 (Wiles Dep.). This evidence suggests that the

officers reasonably could have believed that all four

occupants of the residence had access to the residence in its

entirety. Therefore, it was objectively reasonable for the

officers to conclude that they had probable cause for a warrant

to search the entire house.

Thus, the officers had probable cause for both warrants to

search the basement, and, as discussed above, reasonably

could have believed on the facts of this case that this

established probable cause for searches of the entire residence

in light of the information available to them at the time. We

therefore conclude that the officers are entitled to qualified

immunity with respect to Shamaeizadeh’s § 1983 claim that

the officers lacked probable cause for the first and second
No. 01-6326 Shamaeizadeh v. Cunigan et al. 27

warrants, and affirm the district court’s grant of summary

judgment with respect to these claims.

3. Wrongful Seizure During Execution of the First

Warrant

Shamaeizadeh argues that the district court erred by

concluding that the officers did not unconstitutionally seize

items outside the scope of the first warrant. During the

criminal case, the district court adopted the magistrate judge’s

finding that the officers’ execution of the March 14, 1994,

warrant went far beyond its terms when the officers seized

paper records and receipts. The warrant authorized the

officers to search for “[a]ny and all illegally possessed

controlled substances including marijuana, both growing and

processed, and any drug paraphernalia, also any and all

illegally possessed prescription drugs.” J.A. at 584 (1st

Warrant). In addition to seizing these items, the officers also

seized numerous documents, records, and pieces of jewelry.

Seizing items beyond the scope of a warrant’s authorization

violates the Fourth Amendment rights of the subject of a

search. Andresen v. Maryland, 427 U.S. 463, 480 (1976); see

Brindley v. Best, 192 F.3d 525, 533 (6th Cir. 1999) (reversing

a district court’s grant of summary judgment because “[n]o

reasonable officer in the defendants’ position could have

believed that certain seized items were within the scope of the

warrant or evidence of a crime”). Generally, officers are

obligated to secure an additional warrant if they want to seize

things not included in a warrant. However, where a warrant

justifies an officer’s initial intrusion and the officer “in the

course of the search come[s] across some other article of

incriminating character,” the plain view doctrine may

supplement the prior justification and permit the warrantless

seizure. Coolidge v. New Hampshire, 403 U.S. 443, 465

(1971).

28 Shamaeizadeh v. Cunigan et al. No. 01-6326

Under the plain view doctrine, officers may seize items not

within the scope of the warrant where the evidence is “(1) in

plain view; (2) of a character that is immediately

incriminating; (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 access to the object itself.”

Roark, 36 F.3d at 18. Assuming that the officers were

executing a valid warrant and thus were legally in a place

where they saw the jewelry and documents in plain view, the

seizure of these items during the execution of the first warrant

was nevertheless unconstitutional because their incriminating

character is not immediately apparent as an objective matter.

In determining whether probable cause is immediately

apparent upon viewing an object, this court has considered

three factors:

(1) the nexus between the seized object and the items

particularized in the warrant; (2) whether the intrinsic

nature or appearance of the seized object gives probable

cause to associate it with criminal activity; and

(3) whether probable cause is the direct result of the

executing officer’s instantaneous sensory perceptions.

United States 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 criminal

activity,” however, a plain view seizure is “presumptively

reasonable” 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 officers argue that probable cause to seize the jewelry

was immediately apparent because they reasonably believed

that the jewelry was derived from the proceeds of drug-related

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

establish probable cause as to its association with criminal

activity, the item is not immediately incriminating.” United

States v. McLevain, 310 F.3d 434, 443 (6th Cir. 2002)

(quotation omitted). Nothing about the intrinsic nature of the

jewelry gave the officers cause to associate it with the drug

activity under investigation. Calloway, 116 F.3d at 1133.

Because further investigation would be necessary to establish

probable cause of the existence of a relationship between the

jewelry and illegal drugs or drug paraphernalia, we conclude

that there was no clear nexus between the jewelry seized “and

the items particularized in the search warrant.” United States

v. Beal, 810 F.2d 574, 576 (6th Cir. 1987).

The officers also maintain that probable cause to seize the

documents was immediately apparent because the documents

suggested that Shamaeizadeh had multiple identities and was

forging instruments in violation of Kentucky law. With

respect to the documents, reasonable officers could not

believe that probable cause was apparent as a “direct result of

the officer’s instantaneous sensory perception of the object.”

Id. at 577 (quotation omitted). To have probable cause for

associating the seized documents with possible criminal

activity, the officers would have required far more than an

instant to conclude that any of the documents implicated

criminal activity. The plain view exception therefore does not

apply to the seizure of either the jewelry or the documents.

The officers violated a clearly established constitutional

right of which reasonable persons would have known — a

right to be free of seizures beyond the scope of a warrant, in

the absence of an exception to the warrant requirement such

as the plain view doctrine. Moreover, the undisputed

evidence indicates that the officers’ seizure of documents and

jewelry was objectively unreasonable in light of these clearly

established rights. Therefore, we conclude that the officers

are not entitled to qualified immunity with respect to

Shamaeizadeh’s claims of wrongful seizure, and that the

30 Shamaeizadeh v. Cunigan et al. No. 01-6326

district court erred by granting summary judgment to the

officers regarding these claims.

C. Misrepresentation & False Arrest

Shamaeizadeh explicitly states that his misrepresentation

and false arrest claims hinge on this court finding that

Shamaeizadeh has standing to challenge the searches of the

basement. In fact, his entire argument with respect to these

two claims is as follows:

Misrepresentation and False Arrest

TheCourt dismissed Appellant[’]s constitutional claim

for misrepresentation by Appellees on the affidavit for a

warrant by failing to put that the house consisted of two

residences. The Court felt that there was no causal

connection between the warrant search and the

misrepresentation. Secondly, the Court felt that

Appellant had no claim for false arrest under §1983

because, again, there was no causal connection between

the arrest and the improper search because Appellant had

no standing to complain about the basement search.

However, if Appellant has standing, as argued above,

to the basement search then the Court was in error

concerning the issues and must be reversed.

Shamaeizadeh Br. at 23-24. Because we conclude that

Shamaeizadeh does not have standing to contest the basement

searches, we need not address his claims of misrepresentation

and false arrest.

D. Malicious Prosecution

Shamaeizadeh argues that the district court erred in

granting the officers summary judgment on his state law

malicious prosecution claim as well. Under Kentucky law,

there are six elements of malicious prosecution:
No. 01-6326 Shamaeizadeh v. Cunigan et al. 31

(1) the institution or continuation of original judicial

proceedings, either civil or criminal, or of administrative

or disciplinary proceedings, (2) by, or at the instance, of

the plaintiff, (3) the termination of such proceedings in

defendant’s favor, (4) malice in the institution of such

proceeding, (5) want or lack of probable cause for the

proceeding, and (6) the suffering of damage as a result of

the proceeding.

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 Res., 824 F.2d 518, 520-

21 (6th Cir. 1987).

Shamaeizadeh has failed to demonstrate the initiation or

maintenance of a proceeding against the plaintiff by the

defendants. See William L. Prosser & W. Page Keeton,

Prosser & Keeton on The Law of Torts § 119, at 871 (5th ed.

1984). Neither the officers,theRichmond Police Department,

nor the City of Richmond were involved in the prosecution of

Shamaeizadeh. Although two officers testified at the

suppression hearing during the criminal proceedings,

Shamaeizadeh does not contest that he was indicted by a

federal grand jury and none of the defendants so much as

testified before the grand jury. Because the initiation or

maintenance of a proceeding by the defendants is an element

of malicious prosecution claims under Kentucky law, we

affirm the district court’s grant of summary judgment to the

defendants with respect to Shamaeizadeh’s state malicious

prosecution claim.

E. Municipal Liability

We construe Shamaeizadeh’s § 1983 claims against the

officers in their official capacity as claims against the City of

Richmond. “[A] section 1983 action against a city official in

his or her official capacity is treated as an action against the

City entity itself.” Barber v. City of Salem, 953 F.2d 232, 237

32 Shamaeizadeh v. Cunigan 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 Defendants or to cause them to be trained

thus showing a deliberate indifference to the violation of the

constitutional rights of the Plaintiff.” J.A. at 28 (2d Am.

Compl. ¶ 14).

To establish municipal liability pursuant to § 1983, a

plaintiff must allege an unconstitutional action that

“implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by

that body’s officers” or a “constitutional deprivation[] visited

pursuant to governmental ‘custom’ even though such a

custom has not received formal approval through the body’s

official decisionmaking channels.” Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690-91 (1978). Only then can “the

action of the municipality itself . . . be said to have caused the

harm.” Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir.

1994), cert. denied, 513 U.S. 1111 (1995); City of Canton v.

Harris, 489 U.S. 378, 385 (1989) (“[A] municipality can be

found liable under § 1983 only where the municipality itself

causes the constitutional violation at issue. Respondeat

superior or vicarious liability will not attach under § 1983.”).

The Supreme Court has limited § 1983 actions for the

inadequacy of police training, reasoning that “[o]nly where a

municipality’s failure to train its employees in a relevant

respect evidences a ‘deliberate indifference’ to the rights of its

inhabitants 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 demonstrate deliberate

indifference to Shamaeizadeh’s constitutional rights. The

City of Richmond trains officers at Eastern Kentucky

University’s law enforcement program and the Department of

Justice’s basic training program, provides specific training on

the execution of searches and seizures, and provides field

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,weREVERSE 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.