861 N.W.2d 635
Mich. Ct. App.2014Background
- Lavigne plaintiffs allege Fourth Amendment violation under 42 U.S.C. §1983 for warrantless entry/search Sept. 29, 2010.
- Officers used a knock-and-talk approach after trash pull; consent to enter/search is contested.
- Diane allegedly consented; Kimberly allegedly revoked consent or limited scope.
- Forshee believed consent was given; Leonard/Morningstar corroborated but some testimony disputed.
- Trial court granted summary disposition, finding no genuine issue of material fact on consent.
- This Court reverses, finding material factual questions about voluntariness, scope, revocation, and coercion; remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the entry/search authorized by voluntary consent? | Lavigne argues consent was not voluntary and coerced. | Forshee/Leonard assert consent was unequivocal, specific, freely given. | No; questions of fact remain about voluntariness. |
| Did Kimberly revoke Diane's alleged consent to search, affecting validity of search? | Kimberly testified consent was revoked, which would negate validity. | Consent, if given, remained valid for scope; revocation unclear. | Yes, triable issues exist on revocation and scope. |
| Was the knock-and-talk procedure permissible under Fourth Amendment given disputed consent? | Consent issues render knock-and-talk potentially unlawful. | Knock-and-talk is a permissible tactic absent full warrant. | Material facts about coercion/consent preclude summary disposition. |
| Is Forshee entitled to qualified immunity given clearly established law on voluntary consent? | Qualified immunity not applicable if consent coerced or invalid. | Argues immunity should apply despite potential coercion. | Qualified immunity not established; issues of consent viability remain. |
Key Cases Cited
- Schneckloth v. Bustamonte, 412 U.S. 218 (U.S. Supreme Court 1973) (voluntary consent cannot be inferred from mere acquiescence to authority)
- Borchard-Ruhland v. Michigan, 460 Mich. 278 (Mich. 1999) (consent must be unequivocal, specific, and freely given; coercion ok if based on authority)
- Frohriep v. United States, 247 Mich. App. 692 (Mich. App. 2001) (consent must be voluntary and not coerced; scope can be limited or revoked)
- Powell v. People, 502 N.W.2d 353 (Mich. App. 1993) (consent may be revoked; voluntariness assessed under totality of circumstances)
- Davis v. Wayne County Sheriff, 201 Mich. App. 572 (Mich. App. 1993) (elements for §1983 claim; deprivation of federal rights; color of state law)