Ali Shamaeizadeh v. Joel Cunigan

*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.
X
-
-
-
->
,
-
N
No. 01-6326
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 97-00121—Karl S. Forester, Chief District Judge.
Argued: April 30, 2003
Decided and Filed: July 22, 2003
Before: MOORE and 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. Plaintiff-
Appellant 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

-- 1 of 17 --

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
1Shamaeizadeh conceded at oral argumen t 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

-- 2 of 17 --

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[.]

-- 3 of 17 --

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 drug-
law 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.

-- 4 of 17 --

No. 01-6326 Shamaeizadeh v. Cunigan et al. 9
2In 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 brin g a motion
to suppress evidence seized therein. Shamaeizadeh sought to app eal this
determinatio n, 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

-- 5 of 17 --

No. 01-6326 Shamaeizadeh v. Cunigan et al. 11
3The Magistrate Judge’s Proposed Findings of Fact and
Recommendation were mad e 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 inapp ropriate for this court to
consider the magistrate judge’s factual findings in this civil action.
However, bec ause both parties rely on the magistrate judge’s findings in
their briefs before this court and neither p arty 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

-- 6 of 17 --

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
4The district court below and the district court during the criminal
proceedings conc luded that the second and third searches were
unco nstitutional. However, Shama eizadeh cannot collaterally estop the
officers from relitigating this issue because the officers — “the party
against whom estopp el is sought” — did no t have “a full and fair
opp ortunity to litigate the issue” during the suppression hearing. Detroit
Police Officers Ass’n v. Young, 824 F.2d 51 2, 515 (6th Cir. 1987).
Although two defendants in the current action — W iles 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 no t in privity with the fede ral government,
which was a p arty to the first action. See United States v. Wh ite, Nos. 91-
2005, 91-209 0, 91-2168, 91-2169, 91-2308, 91-2403, 1994 WL 70855,
at **10 (6th Cir. March 3, 1994) (“[I]t would be a stretch to say that
federal prosecuto rs are in p rivity with an exclusively state prosecution.”),
cert. denied, 513 U.S. 861, 513 U.S. 949 (19 94); cf. Sunshine A nthra cite
Coal Co. v. Adkins, 310 U .S. 381, 402 (194 0) (“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

-- 7 of 17 --

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).
5Although 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 p remises 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 C ir. 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 searc h, 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 Schm itt 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 circum stances 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

-- 8 of 17 --

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

-- 9 of 17 --

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 circumstances justified 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

-- 10 of 17 --

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
growing marijuana both upstairs and downstairs. Several
of the rooms in the residence were locked and we were
unable to look inside them.

-- 11 of 17 --

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

-- 12 of 17 --

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, they are 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

-- 13 of 17 --

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

-- 14 of 17 --

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
The Court 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:

-- 15 of 17 --

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, the Richmond 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

-- 16 of 17 --

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, 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. We REMAND for further proceedings
consistent with this opinion.

-- 17 of 17 --