UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HARRY CARL JOHNSON, JR.,

Plaintiff, No. 14-12790

v. District Judge Judith E. Levy

Magistrate Judge R. Steven Whalen

DEREK WILLIAMS, ET AL.,

Defendants.

 /

REPORT AND RECOMMENDATION

On July 3, 2014, Plaintiff Harry Carl Johnson, Jr. filed a pro se civil complaint

under 42 U.S.C. § 1983, alleging that police officers from the Saginaw Chippewa Tribal

Police Department, the Alma, Michigan Police Department, and the Gratiot County

Sheriff’s Department violated his rights under the Fourth Amendment when they

conducted a warrantless search of his hotel room at the Soaring Eagle Water Park and

Hotel in Mt. Pleasant, Michigan. Mr. Johnson reached a settlement with Defendants

Derek Williams and Brian Hackney, and those Defendants have been dismissed [Doc.

#27 and #28]. The only remaining Defendant is Sgt. Jacob Gulick of the Alma Police

Department.1

Before the Court is Sgt. Gulick’s Motion to Dismiss Based on the Pleadings

Pursuant to Fed.R.Civ.P. 12(c) or, Alternative, Motion for Summary Judgment Pursuant

to Fed.R.Civ.P. 56 [Doc. #36], which has been referred for a Report and

Recommendation under 28 U.S.C. § 636(b)(1)(B). Because Sgt. Gulick is entitled to

 In his complaint Plaintiff misspelled the Defendant’s name as “Julick.” 1

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qualified immunity, I recommend that his motion be GRANTED, and that he be

DISMISSED WITH PREJUDICE.

I. FACTS

Mr. Johnson alleges that on December 19, 2012, he, Mirysa McElwee, and Danyell

Thomas were guests at the Soaring Eagle Water Park and Hotel. Complaint [Doc. #1], 

¶ 11. At about 3:25 in the afternoon, Sgt. Gulick and Saginaw Chippewa Tribal Police

Officer Williams knocked on their door, claiming to have smelled marijuana. Id. ¶¶ 14-

15. Mr. Johnson declined to give permission for the officers to enter the room, and when

asked for identification, he provided “paperwork for a medical marijuana application

accompanied with a Physician Certification form....” Id. ¶¶ 16-17. Officer Williams

asked Mr. Johnson if he had his medical marijuana card, and Mr. Johnson said he did not.

He also denied having smoked marijuana, but informed Officer Williams that Mr.

Thomas, one of the other guests who was not present, had smoked medical marijuana

before he left. Id. ¶¶ 18-19. Mr. Johnson acknowledged that the room was registered in

his name, and told Officer Williams that the marijuana was “in the nightstand between the

beds accompanied with Mr. Thomas’ medical marijuana card.” Id. ¶¶ 20-21. Mr. Johnson

refused Officer Williams’ request to search the room. Id. ¶ 23.

Mr. Thomas returned to the suite, and showed Officer Williams his medical

marijuana card, stating that he had previously smoked marijuana for medical purposes. 

Id. ¶ 24. Mr. Johnson alleges that as he began to close the door, Officer Williams “placed

his foot in front of the door to prevent it from closing, pushed the door open and rushed

into Plaintiff’s room,” with Sgt. Gulick, Deputy Hackney, and a dog entering the room. 

Id. ¶¶ 25-26. He claims that Williams, Gulick, and Hackney “ravaged” his room and

searched through all of his belongings, seizing $2,905 in his suitcase as well as Mr.

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Thomas’ medical marijuana card and prescription medication. He states that “[a]t no time

did Plaintiff, Ms. McElwee or Mr. Thomas consent to the search and seizure. Id. ¶ ¶ 27-

28.

Sgt. Gulick has submitted his affidavit as Exhibit 1 to his motion [Doc. #36]. He

states that on the day in question, he and his canine partner participated in a training

session hosted by the Saginaw Chippewa Tribal Police Department (“SCTP”). Gulick

Affidavit, ¶ 5. In the afternoon, he was at the Soaring Eagle Hotel and Water Park. After

completing the training session, he “detected a strong odor of marijuana,” and followed

the scent to Suite 6. Id. ¶¶ 7-8. Officer Williams knocked on the door, and a female

answered; when the door was opened, the odor of marijuana became significantly

stronger. Id. ¶ ¶ 12-14. Sgt. Gulick states that Officer Williams went inside, which he

“interpreted” as being given consent to enter. Id. ¶ 16. He and other officers followed.

Sgt. Gulick states that he acted only in a backup capacity, and did not arrest any of the

occupants. Deputy Hackney’s canine located the money, and all items were seized by

SCTP officers. Id. ¶ 19-24. 

Submitted as Defendant’s Exhibit 2 is an affidavit in support of complaint for

warrant executed by Officer Williams, who stated that he was given consent to enter and

search the room, and that Mr. Johnson admitted to smoking marijuana. Mr. Johnson was

charged with a misdemeanor offense of possession of marijuana, but the charge was

ultimately dismissed without prejudice. See Defendant’s Exhibits 3 and 4.

II. STANDARD OF REVIEW

A. Fed.R.Civ.P. 12(c)

A motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) is evaluated

under the same standards as a motion to dismiss under Fed.R.Civ.P. 12(b)(6), for failure

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to state a claim on which relief can be granted. Lindsay v. Yates, 498 F.3d 434, 437, n.5

(6 Cir. 2007)(“[T]he legal standards for adjudicating Rule 12(b)(6) and Rule 12(c) th

motions are the same....”). In assessing a Rule 12(b)(6) motion, the court accepts the

plaintiff’s factual allegations as true, and asks whether, as a matter of law, the plaintiff is

entitled to legal relief. Rippy v. Hattaway, 270 F.3d 416, 419 (6 Cir. 2001). th

In Bell Atlantic Corp. v. Twombley, 550 U.S 544 (2007), the Court, construing the

requirements of Fed.R.Civ.P. 8(a)(2), held that although a complaint need not contain

detailed factual allegations, its “[f]actual allegations must be enough to raise a right to

relief above the speculative level...on the assumption that all the allegations in the

complaint are true.” Id., at 555 (internal citations and quotation marks omitted). Further,

“a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more

than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Id. (Internal citations and quotation marks omitted). See also

Association of Cleveland Fire Fighters v. City of Cleveland, Ohio 502 F.3d 545, 548 (6th

Cir. 2007). Stated differently, a complaint must “state a claim to relief that is plausible on

its face.” Twombley, at 570.

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court explained and expanded on

what it termed the “two-pronged approach” of Twombley. First, it must be determined

whether a complaint contains factual allegations, as opposed to legal conclusions.

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id., at 678, citing Twombley, 550 U.S. at 555. Second, the

facts that are pled must show a “plausible” claim for relief, which the Court described as

follows:

“Determining whether a complaint states a plausible claim for relief will, as

the Court of Appeals observed, be a context-specific task that requires the

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reviewing court to draw on its judicial experience and common sense. But

where the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged–but it has not

‘shown[n]”–‘that the pleader is entitled to relief.’” 556 U.S. at 679 (internal

citations omitted).

B. Summary Judgment

Summary judgment is appropriate where “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 and that the moving party is entitled to a

judgment as a matter of law.” Fed. R.Civ.P. 56(c). To prevail on a motion for summary

judgment, the non-moving party must show sufficient evidence to create a genuine issue

of material fact. Klepper v. First American Bank, 916 F.2d 337, 341-42 (6 Cir. 1990). th

Drawing all reasonable inferences in favor of the non-moving party, the Court must

determine “whether the evidence presents a sufficient disagreement to require submission

to a jury or whether it is so one-sided that one party must prevail as a matter of law.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Entry of summary

judgment is appropriate “against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.” Celetox Corp. v. Catrett, 477 U.S. 317, 322

(1986). When the “record taken as a whole could not lead a rational trier of fact to find

for the nonmoving party,” there is no genuine issue of material fact, and summary

judgment is appropriate. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6 Cir. 2000). th

Once the moving party in a summary judgment motion identifies portions of the

record which demonstrate the absence of a genuine dispute over material facts, the

opposing party may not then “rely on the hope that the trier of fact will disbelieve the

movant’s denial of a disputed fact,” but must make an affirmative evidentiary showing to

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defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6 Cir. 1989). th

The non-moving party must identify specific facts in affidavits, depositions or other

factual material showing “evidence on which the jury could reasonably find for the

plaintiff.” Anderson, 477 U.S. at 252 (emphasis added). If the non-moving party cannot

meet that burden, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-

23.

III. DISCUSSION

Sgt. Gulick seeks dismissal on the basis of qualified immunity. 

Qualified immunity is an affirmative defense. A state official is protected by

qualified immunity unless the Plaintiff shows (1) that the Defendant violated a

constitutional right, and (2) the right was clearly established to the extent that a

reasonable person in the Defendant’s position would know that the conduct complained

of was unlawful. Saucier v. Katz, 533 U.S. 194 (2001). Under Saucier, the inquiry was

sequential, requiring the district court to first consider whether there was a constitutional

violation. However, in Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court

held that the two-step sequential analysis set forth in Saucier is no longer mandatory. 

Rather, Pearson commended the order of inquiry to the judge’s discretion, to be exercised

on a case-by-case basis:

“On reconsidering the procedure required in Saucier, we conclude that,

while the sequence set forth there is often appropriate, it should no longer

be regarded as mandatory. The judges of the district courts and the courts of

appeals should be permitted to exercise their sound discretion in deciding

which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.” 

Pearson, 129 S.Ct. at 818.

Qualified immunity “ ‘provides ample support to all but the plainly incompetent or

those who knowingly violate the law.’ ” Burns v. Reed, 500 U.S. 478, 494-95 (1991)

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(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Once the defense of qualified

immunity is raised, the plaintiff bears the burden of proving that the defendant is not

entitled to qualified immunity. Rodriguez v. Passinault, 637 F.3d 675, 689 (6th Cir.

2011). 

In this case, I will first discuss whether there was a constitutional violation.

The following facts, viewed in the light most favorable to Mr. Johnson, are pertinent:

1. Sgt. Gulick detected a strong odor of marijuana emanating from Mr. Johnson’s

room.

2. Although Mr. Johnson denied smoking marijuana himself, he told Officer

Williams that there was marijuana in the room, and that his friend, Mr. Thomas, had

smoked the marijuana.

3. The hotel room was registered in Mr Johnson’s name.

4. Mr. Johnson produced “paperwork for a medical marijuana application” and a

physician’s certificate, but not a medical marijuana registration card itself.

5. When Mr. Thomas returned to the room, he produced his own medical

marijuana card.

6. The officers, including Sgt. Gulick, entered the room without the occupants’

consent and conducted a warrantless search.

7. Drugs and money were seized, but Mr. Johnson was not arrested at the scene. 

While a warrantless search in a home (or in this case, a hotel room where the

registered guest has a reasonable expectation of privacy) is presumptively unreasonable,

that presumption is overcome, and a warrantless search is permissible, where certain

exigent circumstances exist. Kentucky v. King, U.S. , 131 S.Ct. 1849, 1858 (2011). 

“[T]he need ‘to prevent the imminent destruction of evidence’ has long been recognized

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as a sufficient justification for a warrantless search.” Id., quoting Brigham City v. Stuart,

547 U.S. 398, 403 (2006). Here, the officers knew that there was a controlled

substance–marijuana–inside the hotel room, not only because they could smell it, but

because Mr. Johnson told them there was. Under these circumstances, the potential for the

destruction of the contraband creates an exigency that justifies an immediate, warrantless

search and seizure. This case is factually similar to United States v. McMillion, 472

Fed.App’x. 138 (3 Cir. 2012), where the Third Circuit upheld a warrantless search under rd

the exigent circumstances doctrine:

“Here, the exigency of the circumstances provided the officers with an

objectively reasonable belief that a warrantless entry was justified. The

officers followed the odor of marijuana to Washington’s apartment,

nockked on the door and, when Washington opened the door, the odor was

even stronger. It was thus reasonable for the officers to suspect that there

was ongoing drug activity, and, particularly in light of McMillion’s

admission to smoking marijuana, it was also reasonable for the officers to

conclude that contraband was being destroyed and would continue to be

destroyed or removed if they did not act immediately.” Id. at 140-41.2

Under well-established law, then, it would seem that the exigent circumstances

doctrine would support the warrantless search. But what about the Michigan Medical

Marijuana Act (“MMMA”), M.C.L. § 333.26421 et seq? Mr. Johnson argues that under

the Act, he and Mr. Thompson had the legal right to be in possession of the marijuana,

hence, there was no illegal activity and no contraband that would justify a warrantless

entry into their hotel room:

“Once the Plaintiff any Danyell Thomas produced authorization for them to

be in possession of Medical Marijuana, Defendant Gulick’s inquiry

concerning the smell of marijuana coming from Plaintiff’s rental suite

should have ended.”

 While Mr. Johnson claims that he told the Officer Williams that he did not smoke 2

any marijuana, he said that Mr. Thompson did. Mr. Thompson returned to the room

before the officers entered and conducted their search. Thus, the concern that the

evidence might be destroyed was the same as in McMillion.

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“Once Defendant Gulick was shown the authorization for the marijuana, his

inquiry should have concluded. There was no legal basis for Defendant

Gulick to question Plaintiff, Ms. McElwee and Mr. Thomas any further. 

Neither were their (sic) exigent circumstances for Defendant Gulick to enter

Plaintiff’s motel suite uninvited.” Plaintiff’s Response [Doc. #42], pp. 4-5.

Under the facts of this case, nothing in the MMMA impinges on the probable

cause determination or the exigent circumstances exception to the warrant requirement.

Section 4 of the Act, M.C.L. § 333.26424, states that “[a] qualifying patient who has been

issued and possesses a registry identification card shall not be subject to arrest,

prosecution, or penalty in any manner...for the medical use of marihuana in accordance

with this act, provided that the qualifying patient possesses an amount of marihuana that

does not exceed 2.5 ounces of usable marihuana....” (Emphasis added). Section 4 does 3

not legalize marijuana; rather, “[i]nstead of describing an affirmative right to grow,

possess, or juse marijuana, § 4 simply indicates that registered qualifying patients,

primary caregivers, and physicians are protected from arrest, prosecution, or penalty if

they meet the specific requirements set forth.” People v. Redden, 290 Mich.App. 65, 104,

799 N.W.2d 184 (2010). 

First, a qualifying patient in possession of a registry identification card and who

has under 2.5 grams of marijuana is protected from arrest. Mr. Johnson was not arrested

at the scene. Section 4 does not address the question of whether the police may conduct a

search of the individual’s premises. Indeed, in People v. Brown, 297 Mich.App. 670, 674,

825 N.W.2d 91 (2012), the Michigan Court of Appeals, noting that “the MMMA does not

abrogate state criminal prohibitions related to marijuana,” held:

 Sec. 4 also permits the qualifying patient who has not specified a primary 3

caregiver to cultivate up to 12 marijuana plants. That provision is not relevant to the

present case.

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“Thus, we conclude that to establish probable cause, a search-warrant

affidavit need not provide facts from which a magistrate could conclude

that a suspect’s marijuana-related activities are specifically not legal under

the MMMA.” Id.

See also United States v. Duval, 742 F.3d 246, 252 (6 Cir. 2014)(absent “clear and th

uncontroverted evidence” that a suspect is in full compliance with the MMMA, the

failure to include facts pertaining to the MMMA in a search warrant does not invalidate a

probable cause finding)(citing Brown); United States v. Ashbourne, 571 F.App’x. 422,

425 (6 Cir. 2014)(affirming district court’s finding “that the police are not required to th

anticipate or investigate a defendant’s possible defenses to apparent illegality,” including

the claimed protection of the MMMA).

No less than a search based on a warrant, a warrantless search must be based on

probable cause. Nothing in the MMMA as interpreted by the Michigan Courts, or in Mr.

Johnson’s statements to the officers, would have negated probable cause in this case.

More significantly, it is undisputed that Mr. Johnson was not in possession of a

registry identification card; therefore, § 4 of the MMMA does not apply to him in any

event. Rather, he was in possession of an application and a physician’s certification.

While this might be relevant to an affirmative defense under § 8 of the Act, M.C.L. §

333.26428, it does not immunize an individual who does not meet the requirements of § 4

from arrest, prosecution, or search. People v. Redden, supra, 290 Mich.App. at 117-119.4

The warrantless search of Mr. Johnson’s hotel room was supported by probable

cause and exigent circumstances, specifically the potential destruction of evidence. There

was no Fourth Amendment violation. Under the first prong of Saucier, Sgt. Gulick is

 The fact that Mr. Thompson apparently had a valid registration card is irrelevant. 4

He is not a party to this lawsuit, and the room was registered in Mr. Johnson’s name.

Moreover, Mr. Thompson was not arrested.

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entitled to qualified immunity.

In addition, even if it could be argued that the MMMA works to negate probable

cause to search, the right was not clearly established at the time of the search. In a

qualified immunity analysis, the right in question cannot be a generalized right. “It must

be clearly established in a ‘particularized’ sense, so that ‘the contours of the right’ are

clear enough for any reasonable official in the defendants’ position to know that what the

official is doing violates that right.” Danese v. Asman, 875 F.2d 1239, 1242 (6 Cir. th

1989)(citations omitted). See also Myers v. Potter, 422 F.3d 347, 356 (6th Cir.2005)

(“[W]e do not assess the right violated at a high level of generality, but instead, we must

determine whether the right [is] ‘clearly established’ in a more particularized ... sense”);

Martin v. Heideman, 106 F.3d 1308, 1312 (6th Cir.1997) (“Because most legal rights are

‘clearly established’ at some level of generality, immunity would be impossible to obtain

if a plaintiff were required only to cite an abstract legal principle that an official had

‘clearly’ violated”). 

Of course, in a generalized sense, the Fourth Amendment right to be free from

warrantless or unreasonable searches and seizures has been clearly established since

1789. But viewing this case through a more particularized lens, and under the facts of

this case, there is a dearth of clearly established legal authority for the proposition that a

suspect’s status under the MMMA figures into a police officer’s assessment of probable

cause to search. Indeed, the cases cited above provide a wealth of authority to the

contrary.

Because Sgt. Gulick did not violate any clearly established constitutional right, he

should be dismissed on the basis of qualified immunity.

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IV. CONCLUSION

I recommend that Sgt. Gulick’s Motion to Dismiss Based on the Pleadings

Pursuant to Fed.R.Civ.P. 12(c) or, Alternative, Motion for Summary Judgment Pursuant

to Fed.R.Civ.P. 56 [Doc. #36] be GRANTED, and that the complaint be DISMISSED

WITH PREJUDICE.

Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D.

Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further

right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);

Howard v. Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 th

F.2d 947 (6 Cir. 1981). Filing of objections which raise some issues but fail to raise th

others with specificity will not preserve all the objections a party might have to this

Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6 Cir. th

1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. th

1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served

upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections,

the opposing party may file a response. The response shall be not more than twenty (20)

pages in length unless by motion and order such page limit is extended by the court. The

response shall address specifically, and in the same order raised, each issue contained within

the objections. 

s/ R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: February 23, 2016

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record on

February 23, 2016, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the

Honorable R. Steven Whalen

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