AVERN COHN, District Judge.
This is a civil rights case. As will be explained, this is one of three cases filed by plaintiffs. This case, filed in 2016, is the only case remaining. Broadly stated, plaintiffs claim that defendants have historically had a vendetta against Maher Waad (Waad) and his companies which led to a 2014 raid on Waad's companies and resulted in criminal charges against him that were later dismissed. In this case, Waad and the two companies owned by him, Marks One Car Rental and Marks One Collision, initially sued multiple individuals and entities, as follows: (1) Farmers Insurance Exchange (Farmers), (2) Allen Keller — an employee of Farmers, (3) Sergeant Dan Willis (Willis) — a Macomb County Sheriff, (4) Detective Dave Kriss (Kriss) — a Warren police officer, (5) Lieutenant Mark Oerman (Oerman) a Macomb County Deputy Sheriff, (6) Dana Goldberg — a Macomb County deputy prosecutor, (7) Macomb County, (8) Macomb County Sheriff's Department, and (9) Michigan Auto Theft Authority.
Following various stipulations and motion practice, see Docs. 32, 33, 34, 37 the remaining defendants are: (1) Willis, in his individual capacity, (2) Kriss, in his official and individual capacity, (3) Oerman, in his individual capacity, and (4) Macomb County. Upon the dismissal of plaintiffs' state law claims, see Doc. 27, the following claims are at issue:
Before the Court are the following motions:
For the reasons that follow, the motions for summary judgment will be granted and the motion for sanctions will be denied. This case will be dismissed.
Each of the three cases are discussed briefly below.
In 2013, plaintiffs sued Farmers and several other insurance companies, raising claims under state and federal law which essentially boiled down to the claim that defendants were not treating Waad and his businesses fairly in part because the insurance companies suggested to plaintiffs' customers that plaintiffs engaged in fraud.
Following stipulations and motion practice, only Farmers remained as a defendant with claims of defamation and tortious interference asserted against it. In March of 2018, the Court granted Farmers' motion to dismiss and dismissed the case.
Meanwhile, in 2016, while the 2013 Case was pending and after Waad's criminal case was dismissed, Waad and his companies filed this case (the 2016 Case or "this case")
Finally, in 2017, while the 2013 Case and this Case were pending, Waad and his companies filed a case against State Farm and Keller as well as another Farmer's employee, Tom Berry.
From July 2013 to September 2014, Kriss was a employed by the Warren Police Department and assigned to the Macomb Auto Theft Squad (MATS). Willis and Oerman were also part of MATS. An objective of MATS is to investigate complaints and tips of insurance fraud.
During early September of 2013, Allen Keller (Keller), a fraud investigator employed by Farmers Insurance, contacted MATS to discuss his investigation of Waad's business practices.
Kriss, Willis and Oerman responded to the request by meeting with three (3) representatives from Farmers Insurance. At MATS's request, Macomb County Assistant Prosecutor Michael Macherzak (Macherzak) and National Insurance Crime Bureau investigator Larry Lafond also attended this meeting. Farmers' out-of-state expert investigator Scott Wood attended by phone.
Farmers identified several different theories of insurance fraud associated with Marks One, as follows:
At the close of the meeting, Macherzak agreed that MATS would pursue an investigation of Marks One to the extent Wood's findings substantiated the allegations.
Soon after the meeting, Oerman left MATS and was reassigned to other duties. Oerman had no further involvement in any matter concerning Waad or his businesses.
From October 2013 to January 2014, Wood, at Farmers' direction, conducted ten (10) physical inspections of vehicles repaired by Marks One. See Exhibit C — Declaration of Wood; Doc. 10-2 and provided the following information to MATS in a Special Investigations Unit Report (the "SIU Report"):
On February 7, 2014, after being provided with the SIU Report, MATS opened an investigation of Marks One and Waad.
Both Kriss and Macherzak believed that the SIU Report was impartial, accurate, and provided probable cause to support the criminal charges later authorized by Macherzak. However, Macherzak asked MATS to independently confirm the specific customer complaints enumerated in the SIU Report and ensure there would be victim cooperation. During the investigation, between February 18-24, at least six (6) former Marks One customers agreed to pursue a complaint against Marks One. After being presented with this information, Macherzak directed that MATS take steps to bring charges against Waad. As such, on February 28, 2014, Kriss submitted a warrant request to the Macomb County Prosecutor's Office on charges of racketeering.
The scope of the Marks One investigation included a theory that "free" rental vehicles were provided to customers in the furtherance of the scheme to defraud insurance companies. Accordingly, Willis and Kriss met with Macomb County Assistant Prosecuting Attorney Dana Goldberg-Deasy ("Goldberg") regarding proper procedure for the seizure of assets, including rental cars, in the event search warrants were executed at Marks One.
On April 21, 2014, Kriss executed Affidavits in Support of search warrants for the following locations:
Willis was not involved in the procurement of any of the search warrants. He did, however, participate in the execution of one (1) search warrant.
Macomb County District Court Magistrate Kim Silvestro found that probable cause existed and authorized search warrants for each location. The search warrants all permitted the seizure of business records, rental cars and other instrumentalities of the business of Marks One.
On April 23, 2014, a multi-jurisdictional team executed the search warrants almost simultaneously. Included in the team were at least two (2) FBI Agents; Kriss had been told these Agents wanted to participate but was not provided their reasoning.
Kriss viewed the Marks One locations (the Car Rental and Collision Repair Shop) on 8 Mile as a single entity given their location one building from another, their shared parking lot and the fact that the rentals were instrumentalities of the insurance fraud scheme.
During execution of the search warrant for 2325 8 Mile, a Marks One employee told officers that all Marks One business records were kept at 14500 8 Mile Road in Oak Park, Michigan.
When advised of this information, Kriss left the Marks One location to prepare a warrant request for 14500 8 Mile Road in Oak Park. Magistrate Silvestro determined probable cause existed and authorized a search warrant for this Oak Park location. The search warrant again permitted the seizure of business records, rental cars and other instrumentalities of the business of Marks One. Kriss was not present for execution of the Search Warrant at the Oak Park location on 8 Mile.
Detailed logs were maintained regarding items seized at each location. Of the items seized and logged, Kriss recalls contacting Macherzak and Goldberg while on scene regarding certain rental vehicles titled to a third-party and being directed to go ahead and effect the seizure of these vehicles.
On April 28, 2014, Macherzak and District Court Judge Dean Ausilio authorized an arrest warrant and complaint for Waad on five (5) counts of False Pretenses $1,000 to $20,000 and two (2) counts of False Pretenses $200 to $1,000. Exhibit D, p. 171; Exhibit L — Criminal Complaint.
The next day, Waad surrendered at the Macomb County Sheriff's Office and was served with Notice of Seizure and Intent to Forfeit regarding the property seized searches. He was arraigned before Judge Ausilio that day and released on a personal bond.
Macherzak subsequently authorized an additional charge of racketeering against Waad. Macherzak testified at deposition that he waited to authorize this charge because its inclusion would limit his discretion to negotiate a plea.
On July 17, July 29, August 5 and August 6, 2014, Waad's preliminary examination was held. On December 5, 2014, Judge Ausilio bound the case against Waad over to the Macomb County Circuit Court on all the criminal charges.
At hearing on March 9, 2015, Macomb County Circuit Court Judge James Maceroni granted Waad's Motion to Quash and Dismiss. On May 31, 2016, the Michigan Court of Appeals affirmed the dismissal.
Summary judgment is appropriate when the moving party demonstrates 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). There is no genuine issue of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party."
The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether it is so one-sided that one party must prevail as a matter of law."
Rule 56 provides that:
Fed. R. Civ. P. 56(c)(1).
Count I of the complaint asserts unlawful arrest and unlawful search and seizure claims against "all defendants," Complaint, Doc. 1 at ¶118. The text of Count I, however, omits any reference to Macomb County, and instead focuses the claim against former co-defendant Michigan Auto Theft Authority. Beyond collective reference to "all defendants," Count II similarly fails to reflect any textual reference to Macomb County.
Count III, however, asserts the County established and maintained a host of constitutionally unsound policies or practices, as follows:
Generally, a local government is a person for the purposes of a §1983 civil rights case.
In
Whether a formally adopted policy, or de facto practice, the standard of what constitutes deliberate indifference is very high. It embraces a stringent standard requiring proof that the government entity disregarded a "known or obvious risk."
Moreover, the causal link between a municipal policy or practice and the alleged violation must be direct.
Macomb County says that plaintiffs are "without a body of evidence with which to demonstrate the existence of any constitutionally unsound County policies or de facto practices causally tethered to any harms or wrongs of which they complain, even assuming, arguendo, they suffered any harm at all." The Court agrees.
Here, to establish a question of fact on plaintiffs' claim against Macomb County, they must come forth with evident that Macomb County:
To satisfy their burden, plaintiffs offer five exhibits attached to their response, Plaintiffs' Exhibits A — E,
Exhibit A, Doc. 60-2, is a Farmers Insurance Investigation Summary and MATS Report is authored by co-defendant Kriss and identifies Kriss as a witness. It references Oerman and Willis as attendees a meeting with Farmers representatives in September of 2013, seven months prior to the procurement and execution of the warrants at issue herein. This document fails to show how Macomb County violated plaintiffs' constitutional rights.
Exhibit B, Doc. 60-3, is identified as Willis' Chapter 45 request to Farmers seeking information for arrest warrant. However, it is actually co-defendant
Exhibit C, Doc. 60-4, are the April 21 and 23, 2014, search warrants and requests and affidavits at issue. All identify Kriss only as the author or affiant. The search warrants and affidavits on their face fail to establish any liability on the part of Macomb County.
Exhibit D, Doc. 60-5, a tabulation of seized property executed solely by Kriss. This exhibit fails to reference Macomb County or otherwise implicate it.
Exhibit E, Doc. 60-6, is the March 9, 2015, Circuit Court Order denying costs or fees arising from seizure of automobiles and Order Quashing Bind Over. It does not demonstrate how Macomb County is liable.
In sum, plaintiffs' exhibits fail to touch upon or even intimate the existence of any unconstitutional County policy or practice which causing the constitutional harms they allege.
Finally, to the extent that plaintiffs contend that Macomb County is vicariously liable for the conduct of its law enforcement officers, it is well established that respondeat superior is not available as a theory of recovery under Section 1983.
To survive summary judgment, plaintiffs had to demonstrate that Macomb County maintained constitutionally unlawful policies or practices which (1) authorized or otherwise tolerated filing false police reports, false affidavits, misrepresenting facts to the court, obtaining search warrants based on false or incomplete information, and falsely arresting people, (2) permitted, encouraged, or ratified unjustified, unreasonable and illegal searches and arrests, (3) embraced a failure to properly screen, train, supervise, monitor, discipline, transfer, counsel or otherwise control police officers who were known or who should have been known to violate their established departmental policies and procedures for arrest management, or (4) countenanced withholding or suppression of evidence in criminal prosecutions, and (5) sanctioned inadequate investigations of citizens' complaints, as alleged in the complaint. As noted above, plaintiffs have not put forth any admissible evidence with which to show the existence of any such policies or practices. As such, Macomb County is entitled to summary judgment.
At the outset, it is important to note the limited role that Macomb County Deputy Sheriffs Oerman and Willis played with regard to the investigation, search warrants, and prosecution of Waad's criminal case. Oerman had no involvement with MATS after leaving the unit three months before Keller submitted his January 2014 investigation report and six months before Kriss' pursuit of the April 2014 arrest and search warrants at issue here.
Although Willis attended the September 2013 meeting with Oerman and remained with the MATS Unit and interviewed several witnesses after Keller submitted his report to MATS in January of 2014, he was not involved in procuring the subject warrants — he did not author the warrant requests, he did not author the supporting affidavits, he did not swear to the truth of those affidavits, he did not present the requests to the issuing magistrate, and he did not communicate with the magistrate. Willis' role in this matter was, instead, limited to participating as one member of a large team of officers executing one warrant procured by Kriss.
A plaintiff proceeding under § 1983 must establish that a person acting under color of state law deprived him of a right secured by the Constitution or by federal law. 42 U.S.C. § 1983;
Oerman and Willis argue that plaintiffs cannot survive summary judgment on any of their claims. Each claim is addressed in turn below.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." It further provides that "no Warrants shall issue, but upon probable cause." "`Searches conducted outside the judicial process, without prior approval by [a] judge or [a] magistrate [judge], are per se unreasonable. . . subject only to a few specifically established and well-delineated exceptions.'"
Where the alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner.
To overcome this complete defense, a plaintiff must prove by a preponderance of the evidence that defending officer "knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that created a falsehood and such statements or omissions were material, or necessary, to the finding of probable cause."
A plaintiff may also avoid the warrant shield by showing "it is obvious that no reasonably competent officer would have concluded that a warrant should issue."
Nonetheless, where the defending officer played no role in procuring a challenged warrant, an arrest made pursuant to a facially valid warrant will not give rise to an unlawful arrest, detention, or prosecution claim against that officer.
Here, the undisputed evidence shows that neither Oerman nor Willis procured the challenged search warrants. As such, plaintiffs cannot establish a genuine issue of material fact as to either Oerman or Willis on their unlawful search and seizure claim.
A false arrest is an illegal or unjustified arrest, and the guilt or innocence of the person arrested is irrelevant.
Again, neither Oerman nor Willis procured the challenged warrant authorizing Waad's arrest. Therefore, plaintiffs cannot establish a genuine issue of material fact as to their liability for plaintiff's allegedly unlawful arrest.
The elements of a malicious prosecution claim in a § 1983 action are (1) "`that a criminal prosecution was initiated against the plaintiff and that the defendant `ma[d]e, influence[d], or participate[d] in the decision to prosecute'"; (2) "that there was a lack of probable cause for the criminal prosecution"; (3) "that, `as a consequence of a legal proceeding,' the plaintiff suffered a `deprivation of liberty' . . . apart from the initial seizure"; and (4) that "the criminal proceeding was resolved in the plaintiff's favor.'"
Similar to the legal principal applicable to search and arrest issues, the existence of a facially valid warrant conclusively determines the existence of probable cause. It is well settled that one who makes a full and fair disclosure to the prosecutor is not subject to an action for malicious prosecution.
As noted above, neither Willis nor Oerman procured the subject warrants in this matter. Moreover, neither were the originators of any report of suspected misconduct related to Waad, neither instigated the investigation of his businesses or business practices, and neither acted as the complaining witness as to any criminal allegation or charge made against him.
Oerman and Willis also argue that even if they were implicated in any way, their actions are shielded by qualified immunity. The Court agrees. The defense of qualified immunity is available to any governmental official accused of violating an individual's clearly established constitutional rights.
Here, to the extent plaintiffs' claims concern the procurement of the warrants employed to effect his arrest and search his home and businesses, plaintiffs are unable to demonstrate that Oerman or Willis violated any constitutional right inuring to him. This is so because neither of them were involved in any of the operant events concerning the issuance of those warrants. Even asserting that they violated Waad's 4th Amendment right to due process by not conducting a pre-warrant investigation wholly independent of Farmers Investigator Keller's investigation places Waad in no better position because prevailing law does not impose a duty upon law enforcement officers to conduct an investigation beyond that which establishes probable cause.
As to the warrant execution, Oerman did not participate in the execution of any warrant procured by Kriss. Willis, however, did participate in the execution of a single search warrant at one location. Where an officer executes, but does not procure, a search warrant, the qualified immunity inquiry requires determination of whether a `"reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization.'"
In response to Oerman and Willis' motion, plaintiffs attached eight (8) exhibits, Exhibits A — H. None of these exhibits support plaintiffs' claims or show that there is a genuine issue of material fact over their claims. Exhibits A — E were discussed above relative to Macomb County. They are briefly discussed again relative to Oerman and Willis.
Exhibit A, Doc 60-2, is the Farmers Insurance Investigation Summary and MATS Report is authored by Kriss. It references Oerman and Willis as attendees a meeting with Farmers representatives in September of 2013, seven months prior to the procurement and execution of the warrants at issue here. This exhibit however fails to demonstrate that either Oerman or Willis participated in the warrant procurement process, that they were otherwise aware of the contents of any affidavit employed to obtain such warrants, that they were privy to any communication between Kriss and the issuing magistrate, or that Willis was on notice that the warrant authorizing the single search in which he was involved was anything less than facially valid. As such, it does not establish their liability.
Exhibit B, Doc. 60-3, is identified as Willis' Chapter 45 request to Farmers seeking information for arrest warrant. As noted above, it is actually Kriss's narrative report documenting the September 12, 2013 meeting with Farmers Insurance representatives at which Willis and Oerman appeared. It does not demonstrate any culpable conduct attributable to Oerman or Willis.
Exhibit C, Doc. 60-4, are the April 21 and 23, 2014, search warrants and affidavits. All identify Kriss only as author or affiant. None establish any involvement by Oerman or Willis in the procurement process.
Exhibit D, Doc. 60-5, is a tabulation of seized property executed solely by Kriss. It does not reference or note Oerman or Willis' involvement in the seizure or tabulation of any property subject to the warrants at issue here. The exhibit also does not establish the location of the single search in which Willis participated or what, if anything, he personally seized.
Exhibit E, Doc. 60-6, is the March 9, 2015 Circuit Court Order denying costs or fees arising from seizure of automobiles and Order Quashing Bind Over which bound Waad over for trial. This order fails to establish or otherwise demonstrate that either Oerman or Willis played any role in Waad's preliminary exam which resulted in the bind over.
Exhibit F, Doc. 60-7, is the Michigan Court of Appeals opinion which upheld the 16th Circuit Court's quashing of Waad's bind over. It too fails to implicate Oerman or Willis in any culpable conduct tethered to Waad's preliminary examination.
Exhibit G, Doc. 60-8, is the state district court order binding Waad over for trial. It references only Kriss as offering testimony at Waad's preliminary examination; it makes no reference to Willis or Oerman as participating in that proceeding in any manner.
Finally, Exhibit H, Doc. 60-9, reflects a series of text messages between Willis and Keller. They date from October through December of 2015, a time more than eighteen months after the subject warrants were procured and executed. Accordingly, because they originate after-the-fact, neither the text messages nor the exchange reflected therein can be causally related to the procurement process or execution of the warrants. More importantly, the messages fail to demonstrate any culpable conduct attributable to Willis.
Oerman and Wills also contend that plaintiffs improperly cloak the failure of evidence implicating them in any unlawful act with conclusory statements implicating them in the collective sense. The Court agrees. Plaintiffs' exhibits do not demonstrate constitutionally offensive conduct personally and individually attributable to them. Instead, plaintiffs appear to proceed from the position that all defendants are liable based on the collective acts or omissions of all other defendants. It is well established, however, that liability in a § 1983 action cannot be based on a theory of respondeat superior. A plaintiff must instead plead that each Government-official defendant, through the official's own conduct, has violated the Constitution, and "(e)ach defendant's liability must be assessed individually based on his own actions."
Plaintiffs have failed to offer proofs that Oerman was involved in the subject events beyond his attendance at the Farmers meeting eight months prior to the procurement and executions of the challenged warrants. Similarly, plaintiffs have not furnished any evidence that Willis was involved in the warrants' procurement, or that his participation at the scene of one warrant's execution was unlawful. Based on the undisputed facts and authorities cited, they are entitled to summary judgment on all of plaintiffs' claims.
Kriss first argues that the assertion of §1983 liability against him in his "official" capacity fails. The Court agrees. It is well settled that an official capacity claim pled against an individual is treated like a
Here, the record shows that Kriss was an employee of the City of Warren at all relevant times. Plaintiffs did not plead the existence of a policy or custom of the
As an initial matter, plaintiffs did not seek leave to amend the complaint to plead this claim against the City of Warren. This weighs in favor of dismissal. See
Finally, considering the merits of the claim, it fails as a matter of law. An allegation about what MATA should be doing regarding training does not translate into a basis for liability against a different governmental entity like the City of Warren.
As noted above, Kriss filed a renewed motion for Rule 11 sanctions based on plaintiffs continued pursuit of this claim. (Doc. 75). While the Court understands Kriss' frustration with defending against a meritless official capacity claim, it declines to sanction plaintiffs. In light of the history of this case, dismissal of the claim is sufficient.
Kriss first contends that plaintiffs' §1983 claims against in his individual capacity are barred by the state court's probable cause determination. The existence of probable cause is a complete defense to a claim for false imprisonment/false arrest, unlawful seizure and malicious prosecution.
Here, the determination of probable cause was made by Judge Ausilio after a probable cause hearing by Opinion and Order dated 12/5/2014. See Doc. 26-3. The Sixth Circuit recognizes that "where a state affords an opportunity for an accused to contest probable cause at a preliminary hearing and the accused does so, a finding of probable cause by the examining magistrate or state judge should foreclose re-litigation of that finding in a subsequent § 1983 action."
Kriss says that plaintiffs have not put forth evidence sufficient to survive summary judgment on any of the claims against him and that he is protected by qualified immunity. The legal standards for the claims against Kriss and qualified immunity are set forth above in the discussion relating to Oerman and Willis and will not be repeated. See Part VI. B. Rather, the law is supplemented as necessary for an analysis of the claims against Kriss.
It is a complete defense to an action for false arrest or imprisonment that the defendant police officer acted in good faith on information that, if true, would have warranted his or her conduct in making the arrest or causing the detention.
Here, it is undisputed that during the searches of plaintiffs' properties, on April 23, 2014, Waad was not detained or "imprisoned" by Kriss. To the contrary, Waad has admitted in deposition that he was "vacationing with his wife" on this date
Further, on April 28, 2014, Macherzak and Judge Dean Ausilio authorized a complaint that provided for the lawful arrest of Waad on five (5) counts of False Pretenses $1,000 to $20,000 and two (2) counts of False Pretenses $200 to $1,000. On April 29, 2014, after Waad returned to Michigan, he "voluntarily surrendered to authorities" pursuant to that duly authorized warrant for his arrest. Kriss and others from MATS transported Waad for arraignment and he was released the same day. There was no other detainment of Waad by Kriss.
Importantly, it is undisputed that Kriss believed at the time Waad turned himself in that there was probable cause to arrest him on false pretense charges given the SIU Report and photographic evidence, his personal observations of customer vehicles and the victim statements he obtained as set forth in his Incident Report. Kriss was entitled to rely on this facially valid authorization, and did so according to his Incident Report, when he affected Waad's arrest.
Finally, the suggestion in the complaint that Kriss held Waad longer than necessary after he was granted a personal bond is defeated by Waad's own testimony. Doc. 1, ¶41. Waad admitted at deposition that Judge Ausilio's order on bond included the condition that Waad surrender his passport to authorities before release. Waad dep., p. 129-30. Waad also admitted that his wife had trouble finding his passport that day which meant he sat in custody longer than expected that day. Kriss is only liable under §1983 for his own personal actions; not any delay occasioned by a judge's order or Waad's wife. Thus, Kriss is entitled to summary judgment on Waad's unlawful arrest claim.
As to the claim for unlawful search,"police officers are entitled to rely on a judicially secured warrant for immunity from a §1983 action for illegal search and seizure unless the warrant is so lacking in indicia of probable cause, that official belief in the existence of probable cause is unreasonable."
Here, plaintiffs allege that despite the search warrants, Kriss can somehow be held liable under §1983 for unlawful search or seizure of any rental aspect of the Marks One operations. Specifically, plaintiffs suggest that the failure to identify the separately legal entity by name that operated at 2375 8 Mile Road to rent vehicles to customers of the collision shop operating from the shared-lot address at 2325 8 Mile Road is a basis for action. This assertion fails where the Search Warrant was executed for
Waad cannot avoid the validity of the search warrants merely because he organized a distinct legal entity — Marks One Car Rental — to run rental income through separate from the collision shop. To the contrary, the fact that a neutral magistrate authorized the search warrants to include the search and seizure of rental vehicles and other instrumentalities or tools of the fraudulent scheme is dispositive under
As to a claim for malicious prosecution, an officer who merely turns over evidence in or writes a report regarding a prosecution that is later dismissed in the plaintiff's favor cannot does not "participate" in the decision to prosecute.
Here, there is not any allegation of a false statement by Kriss. The claim instead is that MATS officers failed to sufficiently corroborate the investigative findings from Farmers before they investigated Marks One. First, this assertion is belied by the record which indicates that MATS did its own investigation after receiving the SIU report. The Affidavits for search warrants state:
The record shows that Kriss, the rest of the MATS officers and Goldberg believed that probable cause existed to search and seize rental vehicles in particular given their own findings that "free" rentals were being used to entice customers to bring their insured vehicles to Marks One for repairs and/or look the other way when repairs were not done correctly — meaning the rentals were mere instrumentalities or tools of the fraudulent scheme. The record also shows that Waad was indeed operating in this way; he testified to the "free rentals" and "waived deductibles" he offered customers who would agree to "deviations" after both Marks One and the customer had signed-off on the repair specifications and accepted payment from the insurance company. Thus, Kriss is entitled to summary judgment on plaintiffs' malicious prosecution claim.
Plaintiffs' primary argument to avoid summary judgment is that the business name of "Marks One Car Rental" did not appear in the factual recitation of the Kriss' affidavits for search warrant. Plaintiffs suggest this renders the search warrants unconstitutional "pre se." Not so. "[T]echnical inaccuracies in a warrant do not automatically render unconstitutional searches conducted pursuant to such a warrant."
Here, plaintiffs cannot meet this standard. Kriss testified that he knew exactly what addresses were being searched, prepared an affidavit and warrant specifically for each address to be searched and included a physical description of personal property and records to be seized from these addresses. This is not a case where a police officer prepared a warrant based on erroneous information. Rather, this is a situation where the officer used the moniker "Marks One" to describe an alleged criminal enterprise operating from multiple locations and specifically including the use of "rental cars." The fact that there might, in hindsight, have been a better way to describe the different businesses operated by Waad does not render the search warrant constitutionally deficient.
Further, plaintiffs assertion that the Farmers' SIU report was "blatantly false" does not advance their case against Kriss. An officer is entitled to rely on a report like this one and is not obligated to search for exculpatory information once he reasonably believes probable cause existed.
Overall, Kriss is entitled to summary judgment on all claims against him.
For the reasons stated above,
Macomb County's Motion for Summary Judgment is GRANTED
Oerman and Willis' Motion for Summary Judgment is GRANTED.
Kriss' Motion for Summary Judgment is GRANTED.
Kriss' Renewed Motion for Sanctions is DENIED.
This case is DISMISSED.
SO ORDERED.
Plaintiffs have been litigating against perceived wrongs for over five years, in one form or another. This is the last of these cases. On reflection, the Court is constrained to note that but for the cleverness of counsel, this litigation would have ended much sooner. At the end of the day, Waad may still believe he was mistreated by insurance companies, police, prosecutors, and the courts. However, none of the actions taken by any of the defendants, individually or collectively, amounts to a viable or triable claim.
The Macomb Auto Theft Squad (MATS) is a multi-jurisdictional task force comprised of investigators from the Macomb County Sheriffs Office, Clinton Township Police Department, St. Clair Shores Police Department, Sterling Heights Police Department, Shelby Township Police Department, Roseville Police Department, Chesterfield Township and the Warren Police Department. The Macomb County Prosecutor's Office assigns a full time assistant prosecutor to the squad to prosecute all cases generated by M.A.T.S. and to initiate forfeiture proceedings as mandated by law. Throughout Macomb County, the Macomb Auto Theft Squad investigates car-jackings, stolen vehicles, vehicles taken without permission, failure to return rental vehicles, chop shops, vehicle title frauds, odometer frauds, vehicles with disguise identities, vehicles purchased with fraudulent information, false police reports, insurance fraud, counterfeit insurance certificates /plates/ licenses and repair/salvage facility violations.
MATS is funded in part by the Automobile Theft Prevention Authority of the State of Michigan (ATPA), the County of Macomb, and the law enforcement agencies with officers assigned to the squad. The tax payers of Macomb County contribute 42 cents per year (per resident) for its operation. The State of Michigan assesses each insured, non-commercial passenger vehicle $1 annually through the insurance companies. The money collected is then turned over to the ATPA and dispersed to fund the auto theft task forces throughout Michigan. Without this funding supporting the efforts of auto theft detectives, most auto theft units in the state of Michigan would be eliminated. Since the inception of the ATPA in 1987, auto thefts in Michigan have dropped by 31%. Nationally, thefts decreased only 2.6% for the same time period. National and state officials have agreed the ATPA is a major reason for Michigan's impressive decline in auto theft, and several states have followed Michigan's lead and have enacted ATPA legislation to decrease their auto theft problems.
Today's economic environment has also impacted the increase in insurance fraud. Individuals who feel they can no longer afford to maintain their vehicles or those who simply wish to get out from under a hefty payment are turning to the crime of insurance fraud by falsely reporting their vehicles stolen to the police and to their insurance companies. As well as being a felony crime, insurance fraud directly impacts all citizens by increasing all of our insurance rates.
In 2016, the Macomb Auto Theft Squad received the prestigious Robert Sattler Award at the 45th Annual Midwest Motor Vehicle Conference which was held in Des Moines, Iowa. The award was presented to MATS in recognition of a theft investigation involving illegally obtained keys that were used to steal vehicles. MATS was able to arrest and charge two subjects with 6 counts of auto theft, and recovered 6 stolen motorcycles.
Macomb Auto Theft Squad (M.A.T.S) received a HEAT (Help Eliminate Auto Theft) tip in July of 2015. The tipster stated that they were aware of a residence in St. Clair Shores that was storing stolen motorcycles. The tipster provided specific details that were verified by MATS Detectives. MATS Detectives with the assistance of St. Clair Shores Police Department set up surveillance on the residence and observed a motorcycle pull up and park on the grass in front of the residence, which is a civil infraction in St. Clair Shores. A St. Clair Shores Officer was issuing a ticket for the violation and noticed the VI N to be suspicious and for the engine number on the motorcycle to be ground down. This led to the motorcycle to be impounded and was found to have stolen parts on it. A search warrant was completed based on this evidence and the tipster's information, which led to two arrests and the recovery of 5 more stolen motorcycles from surrounding counties. The tipster was a key factor on this case and was awarded the amount of $10,000.00 for the information given.
In late January 2016, the MATS office received a tip from LEEDS ON LINE with regards to a large volume of aluminum wheels that were being scrapped in Macomb County. MATS Detectives began an investigation in this matter. During the course of said investigation it was discovered that one or more employees of a local wheel and tire company were possible suspects. Upon further investigation it was discovered that the employees were taking aluminum wheels that were supposed to go to a contracted scrap company. Both employees would scrap the aluminum wheels and keep the money for themselves. As the investigation continues, the current amount of scrap aluminum taken is $403,967.19.
The Macomb Auto Theft Squad meets the challenges of an ever changing criminal element and is constantly faced with new and elaborate schemes portrayed by criminals. With the age of technology and home computers, no longer is it just the common car thief stealing a parked vehicle. Citizens and businesses are being targeted with identify theft, fraudulent documents and illegal business practices. The internet has opened a new door used to sell stolen vehicles that are retagged to hide the fact that they are stolen. If you are buying a car on-line and the deal is too good to be true, it probably is. If you suspect that you may have encountered a stolen vehicle, either on line or on the street, contact the Macomb Auto Theft Squad.
MATS investigators can often be found speaking at community groups and organizations with information on how to protect yourself from auto theft related crimes. If your organization is interested in a MATS representative at one of your meetings, contact the MATS office for further information.
