ROBERT S MULLEN V WAYNE COUNTYAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
ROBERT S. MULLEN,
July 26, 2005
Wayne Circuit Court
LC No. 00-023044-CZ
WAYNE COUNTY, EDWARD F.
CARRAVALLAH, GEORGE FREIJE and
ESTATE OF RAYMOND WALSH,
Before: Neff, P.J., and Smolenski and Talbot, JJ.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor
of defendants and dismissing plaintiff’s state tort claims and federal civil rights claims. We
This cause of action arises from a longstanding dispute between Burda Brothers, Inc., a
fireworks vendor, and defendants. Since the mid-1990’s, there have been numerous criminal and
civil proceedings between Burda Brothers and defendants relating to the Burda Brothers’
business practices and fireworks sales. This appeal originated, in part, from civil claims that
arose from a separate criminal action against plaintiff, an attorney who represented Burda
Brothers and whose offices were housed in the Burda Brothers fireworks facility at 47725
Michigan Avenue in Canton Township.
In the related criminal case, plaintiff and other agents of Burda Brothers were charged
with uttering and publishing and conspiracy to commit uttering and publishing relating to a
criminal enterprise involving fireworks. The prosecution alleged that plaintiff participated in a
scheme whereby Burda Brothers and its agents would sell otherwise restricted fireworks to
buyers through the distribution of nontransferable fireworks display permits.
In the course of the criminal case, the police executed a search warrant for the Michigan
Avenue address. In executing the warrant, the police searched plaintiff’s legal offices and
arrested plaintiff. The prosecution eventually dismissed all criminal charges against plaintiff,
and this civil lawsuit ensued.
Plaintiff argues on appeal that the trial court improperly granted defendants’ motion for
summary disposition because the search warrant was invalid for plaintiff’s office. We disagree.
We review de novo a trial court’s decision to grant or deny a motion for summary
disposition. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). Our review is
limited to the evidence before the trial court at the time the motion was decided. Peña v Ingham
Co Rd Comm, 255 Mich App 299, 313 n 4; 660 NW2d 351 (2003). Defendants moved for
summary disposition pursuant to MCR 2.116(C)(7), which tests whether a claim is precluded
because of immunity granted by law, and MCR 2.116(C)(10), which tests the factual support for
a claim. Patterson v Kleiman, 447 Mich 429, 431-432; 526 NW2d 879 (1994); Peña, supra at
309. Although the trial court did not expressly state the ground on which it granted summary
disposition, the trial court’s opinion indicates that the decision was based on its finding that there
was insufficient evidence of a material factual dispute. Therefore, we review the trial court’s
grant of summary disposition pursuant to MCR 2.116(C)(10). Patterson, supra at 432; Gibson v
Neelis, 227 Mich App 187, 190; 575 NW2d 313 (1997).
In evaluating a motion under MCR 2.116(C)(10), a reviewing court must consider the
whole record in the light most favorable to the nonmoving party, including affidavits, pleadings,
depositions, admissions, and other evidence offered by the parties. Corley v Detroit Bd of Ed,
470 Mich 274, 278; 681 NW2d 342 (2004). Documentary evidence to support a position is
required when judgment is sought based on the lack of a material factual dispute. MCR
2.116(G)(3)(b). “When the burden of proof at trial would rest on the nonmoving party, the
nonmovant may not rest upon mere allegations or denials in the pleadings, but must, by
documentary evidence, set forth specific facts showing that there is a genuine issue for trial that
is material to the dispositive legal claims.” Peterson Novelties, Inc v City of Berkley, 259 Mich
App 1, 16 n 14; 672 NW2d 351 (2003). While speculation and conjecture are insufficient, a
nonmovant is not required to rebut every possible theory that could be supported by the
evidence. Id. at 17 n 4. When the evidence demonstrates that no genuine issue of material fact
exists, the movant is entitled to judgment as a matter of law. Corley, supra at 278. Moreover,
whether there was probable cause to support issuance of a warrant is a question of law properly
determined by the trial court and reviewed de novo by this Court. Matthews v Blue Cross Blue
Shield of Michigan, 456 Mich 365, 377, 381; 572 NW2d 603 (1998).
Plaintiff first argues that because the police knew the facts underlying the search warrant
and that his office was in the building to be searched, their failure to inform the magistrate that
they intended to search an attorney’s office for papers related to his clients, invalidates the search
warrant with respect to plaintiff and his premises regardless of its validity with respect to Burda
Brothers and their premises. We are unpersuaded that the search warrant was invalidated with
regard to plaintiff’s offices on the bases argued.
Both the United States Constitution and the Michigan Constitution “guarantee the right of
persons to be secure against unreasonable searches and seizures.” People v Kazmierczak, 461
Mich 411, 417; 605 NW2d 667 (2000); see US Const, Am IV; Const 1963, art 1, § 11. A search
or seizure is deemed unreasonable when it is executed pursuant to an invalid warrant or without a
warrant where the actions of the police officer do not satisfy one of the exceptions to the warrant
requirement. People v Hellstrom, 264 Mich App 187, 192; 690 NW2d 293 (2004). Generally,
the validity of a search conducted with a warrant requires that the warrant be based on probable
cause. Id. However, a warrant becomes invalid where there is evidence giving rise to the
inference that the police officer knowingly included false facts or omitted material facts in his
affidavit without which there could be no conclusion that probable cause existed. Matthews,
supra at 389-390; People v Williams, 240 Mich App 316, 319-320; 614 NW2d 647 (2000).
The affidavit supporting the warrant was provided by defendant Carravallah, a Wayne
County Sheriff deputy. The affidavit sought a search warrant for the structure and curtilage of
47725 Michigan Avenue, a one-story cinderblock building, commonly known as Burda
Brother’s fireworks. The affidavit set forth details of the alleged illegal manner in which
restricted fireworks were sold at the Burda Brothers’ building at 47725 Michigan Avenue by
selling club memberships in “American Fireworks Users Association” for a nominal charge and
providing the club member a membership card with what appeared to be a reduced counterfeit
copy of a nontransferable Mussey Township permit for a fireworks display. The affidavit
recounted in detail two controlled purchases of restricted fireworks in the alleged illegal manner
in which two undercover officers received membership cards. The affidavit identified plaintiff
merely by name, implicating him indirectly in the illegal activity by stating:
Affiant has looked at the copies of both “permits” placed on each of the above
described membership cards and in his experience both appear to be counterfeit
copies of an original.
On information and belief, counterfeit permits were similarly uttered and
published to each customer who joined the American Fireworks User’s
Association in 1995 and 1996.
Affiant believes that the repetitive counterfeiting of permits to possess, transport
and display fireworks, the uttering and publishing of those counterfeit permits as
having any significance at all establishes probable cause to believe that a Criminal
Enterprise has engaged in a pattern of racketeering activity. M.C.L. 750.159f.
Affiant has uttering and publishing warrant recommendations for the two owners
of Burda Brothers Fireworks, Oleg and Efim Burda and for, Robert S. Mullen, the
association and corporation.
The affidavit was based on undisputed facts regarding plaintiff’s involvement.
Specifically, there was information that plaintiff had represented Burda Brothers on several
occasions in both criminal and civil matters since 1995. There was also information that, in 1997
and 1998, plaintiff assisted Burda Brothers in obtaining public fireworks display permits for the
AFUA. Defendants had a copy of a letter plaintiff wrote seeking the fireworks display permit in
Plaintiff complains that defendant Carravallah’s affidavit failed to state that his office
was in the same building as Burda Brothers, and that acting as an attorney, he had obtained the
license for the display of fireworks, which are material omissions that invalidate the warrant with
respect to plaintiff and his office. He argues that attorney-client papers are entitled to special
protection under the Fourth Amendment, and although exceptions may apply to attorneysuspects, this case is different from most attorney-suspect cases, which generally involve serious
felony offenses, not a previously failed misdemeanor prosecution.
Plaintiff cites no authority directly supporting his contentions of material omissions. He
relies on People v Nash, 418 Mich 196, 217-218; 341 NW2d 439 (1983), for the proposition that
the Michigan Supreme Court has expressed “dismay” over the trend toward law office searches
and has suggested that a solution should be to appoint a special master to conduct searches of an
attorney’s office. However, the Nash Court was referring to third-party search warrants for the
offices of non-suspect attorneys. Id. at 218. In the instant case, plaintiff was closely linked with
the alleged criminal enterprise, and thus not ostensibly an independent third party.
Even accepting plaintiff’s argument of special protections for searches of attorney offices
generally, the facts here do not support the application of these protections to invalidate the
search warrant. Plaintiff correctly observes that a search warrant involving a multi-unit building
must generally specify the sub-unit to be searched unless its multi-unit character is not apparent
and the police officers neither knew nor should have known of the separate units. People v
Toodle, 155 Mich App 539, 545; 400 NW2d 670 (1986). Plaintiff asserts that his office was
separate and distinct from Burda Brothers and that he had an outside entrance exclusively for his
office, and that the police officers would have known his office was separate from Burda
Brother’s fireworks. Nonetheless, plaintiff’s office was located in the Burda Brothers building
and his office address and that of Burda Brothers was one and the same, “47725 Michigan
Avenue.” Plaintiff’s letterhead on which he requested the Mussey Township fireworks permit
listed his address simply as “47725 Michigan Avenue” without distinction as a suite or separate
unit within the Burda Brothers building. Thus, we find no justification for invalidating the
search warrant on the basis that plaintiff’s legal office was physically separate and distinct.
The fact that plaintiff’s legal office was so closely associated with Burda Brothers
operation, coupled with his involvement in obtaining the fireworks permit at issue and,
additionally, the lack of evidence distinguishing his office and practice from the Burda Brothers
premises, convince us that the omissions in the affidavit were not fatal to the warrant. Id. at 547548.
Plaintiff also argues that the trial court improperly granted defendants’ motion for
summary disposition because defendants arrested plaintiff without an arrest warrant under
nonexigent circumstances. We disagree.
A person is constitutionally protected from unreasonable seizures. Kazmierczak, supra at
417; see US Const, Am IV; Const 1963, art 1, § 11. Despite the opportunity to obtain an arrest
warrant, a police officer is not compelled to secure a warrant where probable cause exists.
People v Dalton, 155 Mich App 591, 598; 400 NW2d 689 (1986). Probable cause is determined
by an objective standard and exists where there are “such reasonable ground[s] of suspicion,
supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious
man in the belief that the person arrested is guilty of the offense charged.” Matthews, supra at
387-388, quoting Wilson v Bowen, 64 Mich 133, 138; 31 NW 81 (1887).
During the search of the Burda Brother’s building, plaintiff was arrested for uttering and
publishing and conspiracy to utter and publish relating to the sale of nontransferable fireworks
permits issued to the AFUA. Under Michigan law, it is a misdemeanor for any person or
business to use or sell restricted fireworks without first having obtained a nontransferable permit
from an approved government entity. MCL 750.243a, 750.243b, and 750.243e; Stajos v
Lansing, 221 Mich App 223, 227-228; 561 NW2d 116 (1997). The elements of uttering and
publishing include: “(1) defendant’s knowledge that the instrument was false, (2) an intent to
defraud, and (3) presenting the forged instrument for payment.” People v Knowles, 256 Mich
App 53, 58; 662 NW2d 824 (2003). The crime of conspiracy is committed when a person
“conspires together with 1 or more persons to commit an offense prohibited by law, or to commit
a legal act in an illegal manner . . . .” People v Meredith (On Remand), 209 Mich App 403, 411412; 531 NW2d 749 (1995), quoting MCL 750.157a. Therefore, conspiracy to utter and publish
can occur where two or more persons consent to or knowingly cooperate in the uttering and
publishing of a fireworks permit that is nontransferable. Meredith, supra at 412.
At the time of plaintiff’s arrest, the police officers had reason to believe that Burda
Brothers was engaging in the sale of nontransferable fireworks permits. At the Burda Brothers’
building location in Canton Township, undercover officers purchased restricted fireworks after
applying and paying for a membership card to the AFUA, which contained a reduced copy of a
nontransferable permit issued to the AFUA. The police officers were aware that plaintiff
assisted Burda Brothers in securing the permits that were copied onto the membership cards and
used in the sale of restricted fireworks. In addition, the officers found plaintiff on the premises
where they also found evidence of illegal distribution of nontransferable fireworks permits
during execution of a valid search warrant. Given the collective information that the police
officers knew before plaintiff’s arrest and plaintiff’s presence at the scene, there were reasonable
grounds for an ordinarily cautious person to suspect that plaintiff was guilty of uttering and
publishing and conspiracy to utter and publish. Accordingly, we conclude that the trial court
properly determined that there was probable cause to support plaintiff’s arrest without a warrant.
Plaintiff argues that the trial court erred in deciding the issue of probable cause as a
matter of law. Plaintiff contends that if a material factual dispute exists concerning search,
arrest, and prosecution, probable cause is a jury question in a civil rights case. We find no error.
Contrary to plaintiff’s contention, we conclude that the trial court properly determined
the probable cause issue. The lawfulness of an arrest and whether probable cause existed is
generally a question of law decided by the trial court. Matthews, supra at 381; Peterson
Novelties, supra at 18. Where the facts pertaining to a probable cause determination are at issue,
the factual disputes are properly resolved by the jury. Matthews, supra at 381-382.
Here, there was no factual dispute regarding Burda Brothers’ business practice of selling
membership cards containing reduced copies of permits issued to the AFUA to enable unlicensed
customers to purchase restricted fireworks. There was also no factual dispute that plaintiff was
aware of Burda Brothers’ business practices and secured the original permits on behalf of the
business. The disputed matter was actually a question of law regarding the legality of this
particular business practice. Because the facts were undisputed that the business practice existed
and that plaintiff was somehow involved, probable cause was properly decided by the trial court.
Peterson Novelties, supra at 18-19.
Plaintiff next asserts that the trial court erred in dismissing his state tort claims of
malicious prosecution, abuse of process, false light invasion of privacy, and intentional
interference with economic relations. We disagree.
A malicious prosecution claim is often difficult to maintain as it requires a plaintiff to
prove the following: “(1) that the defendant has initiated a criminal prosecution against him, (2)
that the criminal proceedings terminated in his favor, (3) that the private person who instituted or
maintained the prosecution lacked probable cause for his actions, and (4) that the action was
undertaken with malice or a purpose in instituting the criminal claim other than bringing the
offender to justice.” Matthews, supra at 377-378. As previously determined, there was probable
cause to believe that plaintiff was guilty of the crimes of uttering and publishing and conspiracy
to utter and publish. Because the absence of probable cause is an essential element of a
malicious prosecution claim, plaintiff’s malicious prosecution claim was properly dismissed
pursuant to MCR 2.116(C)(10).
To establish an abuse of process claim, a plaintiff must demonstrate “(1) an ulterior
purpose, and (2) an act in the use of process that is improper in the regular prosecution of the
proceeding.” Bonner v Chicago Title Ins Co, 194 Mich App 462, 472; 487 NW2d 807 (1992).
Such a claim addresses whether the defendant used a proper procedure for a purpose other than
that intended. Id. An abuse of process claim cannot be established by bad motive alone; it
requires proof of an “ulterior purpose” through “some corroborating act.” Id.
Contrary to plaintiff’s argument that the trial courts had condoned Burda Brothers’
business practices, there was no outstanding injunction providing general approval of the
company’s business practices. While an injunction was in effect at the time of the search, the
injunction protected Burda Brothers’ seasonal sale and display of fireworks. It specifically did
not “restrain or enjoin the Defendant or its agents from engaging in law enforcement activities,
or the initiation of criminal complaints or the initiation and processing of criminal prosecutions
for any violation of the Michigan Fireworks Law or any other criminal statute against the
Plaintiffs Burda Brothers, Inc., and the American Fireworks Users Association, Inc., or its
agents, officers and employees.”
Whether Burda Brothers’ business practices were illegal had been at issue for several
years. Defendants were aware of plaintiff’s involvement with Burda Brothers before the search
on July 2, 1998. Defendants had information that plaintiff secured permits that enabled Burda
Brothers to implement their business plan of selling nontransferable fireworks permits, and it
was undisputed that the permits were in furtherance of the business practices in connection with
the AFUA. Therefore, this is not a situation in which plaintiff was merely an attorney with no
knowledge of the business practices at issue or the challenges concerning their legality.
Even assuming defendants erroneously concluded that particular business practices were
illegal, they nevertheless were using the prosecution process to enforce the law. Plaintiff failed
to provide evidence that defendants intended to arrest him for the purpose of coercing him to turn
against his client and to implicate Burda Brothers in a criminal enterprise. Because there was no
showing of ulterior or improper motive, we conclude that the state tort claim of abuse of process
was properly dismissed pursuant to MCR 2.116(C)(10).
To establish an action for false light invasion of privacy, a plaintiff must demonstrate that
“the defendant broadcast to the public in general, or to a large number of people, information that
was unreasonable and highly objectionable by attributing to the plaintiff characteristics, conduct,
or beliefs that were false and placed the plaintiff in a false position.” Derderian v Genesys
Health Care Systems, 263 Mich App 364, 385; 689 NW2d 145 (2004) (citations omitted).
Further, the defendant must have known of or acted in reckless disregard of the falsity of the
information and the false light in which the plaintiff would be perceived. Detroit Free Press, Inc
v Oakland Co Sheriff, 164 Mich App 656, 666; 418 NW2d 124 (1987).
We find no error in the trial court’s conclusion that plaintiff failed to show a material
factual dispute concerning whether defendants acted knowingly or with reckless disregard of the
falsity of the matter. On the contrary, there was evidence that defendants had information that
plaintiff was involved to some extent in the Burda Brothers’ business practice of selling
nontransferable fireworks permits. We conclude that the claim of false light invasion of privacy
was properly dismissed under MCR 2.116(C)(10).
To bring a claim of tortious interference with a business relationship, a plaintiff must
show “the existence of a valid business relationship or expectancy, knowledge of the relationship
or expectancy on the part of the defendant, an intentional interference by the defendant inducing
or causing a breach or termination of the relationship or expectancy, and resultant damage to the
plaintiff.” Mino v Clio School Dist, 255 Mich App 60, 78; 661 NW2d 586 (2003) (citation
omitted). To establish the defendant’s malice and lack of justification with respect to a lawful
act, the plaintiff must show specific, affirmative conduct by the defendant corroborating the
improper motive. Id.
Plaintiff contends that defendants primarily sought to interfere with his business
relationship with Burda Brothers by attempting to induce him to give information incriminating
his client and putting Burda Brothers “at odds” with him. However, given plaintiff’s
involvement with Burda Brothers, discussed above, and the shared premises, plaintiff failed to
show the requisite malice or lack of justification. Furthermore, although plaintiff asserted that he
was forced to move offices and lost Burda Brothers’ business as a result of defendants’ actions,
plaintiff apparently never revealed information against his client’s interests. We previously
opined that there was probable cause to support the search warrant and plaintiff’s arrest without a
warrant. Therefore, plaintiff failed to establish that defendants acted with improper motive and
without justification, and we conclude that the claim of intentional interference with business
relations was properly dismissed pursuant to MCR 2.116(C)(10).
Plaintiff’s final contention on appeal is that the trial court erred in dismissing his federal
civil rights claims actionable under 42 USC 1983. We disagree.
Plaintiff agrees with the trial court that the legal principals applicable to his state law
claims apply generally to his federal civil rights claims. For the reasons discussed above, we
find no error in the trial court’s dismissal of these claims.1
The trial court noted that plaintiff’s § 1983 claims were in part based on alleged search
and seizure violations under the Fourth and Fourteenth amendments. “Section 1983 provides a
federal remedy against any person who, under color of state law or custom having the force of
law, deprives another of rights protected by the constitution or laws of the United States.”
Payton v Detroit, 211 Mich App 375, 398; 536 NW2d 233 (1995). With regard to plaintiff’s
constitutional claim of unreasonable search and seizure, such a claim requires proof that there
was no probable cause for the arrest. In a claim under § 1983, probable cause is a jury question
unless only one reasonable determination is possible. Diamond v Howd, 288 F3d 932, 937 (CA
In this case, the parties did not dispute the material events surrounding plaintiff’s arrest.
Additionally, there was evidence that the police officers had information that Burda Brothers was
selling AFUA membership cards containing nontransferable fireworks permits to enable
customers to purchase restricted fireworks. It was undisputed that plaintiff assisted in securing
the original permits on behalf of Burda Brothers. The trial court concluded that probable cause
existed for the search and seizures in this case, and our de novo review compels us to reach the
same conclusion, given plaintiff’s involvement and shared premises with Burda Brothers, as
discussed above. Pyles v Raisor, 60 F3d 1211, 1215 (CA 6, 1995); see also Peterson, supra at
22-24 (concluding that the plaintiffs’ federal claims of malicious prosecution and Fourth
Amendment violations were properly dismissed where the plaintiffs could not show the absence
of probable cause).
Plaintiff also claimed retaliation in violation of § 1983 based on his First Amendment
rights protecting his representation of Burda Brothers against defendants. Plaintiff’s retaliation
claim required a showing that defendants acted with an ulterior motive, i.e., that the adverse
action was motivated by plaintiff’s protected conduct. Crawford-El v Britton, 523 US 574, 588-
Defendants sought summary disposition on the grounds that plaintiff failed to establish a
violation of § 1983 and that defendants were otherwise entitled to immunity.
589; 118 S Ct 1584; 140 L Ed 2d 759 (1998); Thaddeus-X v Blatter, 175 F3d 378, 394, 399 (en
banc) (CA 6, 1999).
As previously determined, there was probable cause to arrest plaintiff for uttering and
publishing and conspiracy, which supports the trial court’s grant of summary disposition.
Mozzochi v Borden, 959 F2d 1174, 1179-1180 (CA 2, 1992). Plaintiff’s legal representation of
the Burda Brothers and its agents in civil and criminal proceedings does not insulate plaintiff
from arrest and prosecution for charged illegal actions. Moreover, the evidence did not support
the alleged ulterior or improper motive by defendants in bringing this action, particularly in light
of defendants’ obvious tenacity in enforcing the Michigan fireworks statute.
/s/ Janet T. Neff
/s/ Michael R. Smolenski
/s/ Michael J. Talbot