Cline v. City of Mansfield (745 F. Supp. 2d 773, 2010)

MEMORANDUM AND ORDER

KATHLEEN M. O’MALLEY, District Judge.

Before the Court is the Report and Recommendation (R & R) of Magistrate Judge Kenneth S. McHargh (“Judge McHargh”). (Doc. 113.) In his R & R, Judge McHargh considers the Defendants’ Motions for Summary Judgment (Docs. 69-72), as well as the Plaintiffs’ Motion to Exclude the Defendants’ Expert Testimony (Doc. 64). He recommends that this Court grant in part and deny in part the Defendants’ motions. The Plaintiffs have filed a timely objection to this R & R (Doc. 122), as have the Defendants (Docs. 114-120), and the Court SUSTAINS IN PART AND OVERRULES IN PART those objections (Docs. 114-120,122).

As explained more fully below, the Motion to Exclude Testimony (Doc. 64) is MOOT, the Motions for Summary Judgment brought by Jeff Alfrey, Jason Bammann, Lance Combs, John Mager, Frank Parella, and Ed Schmidt (Docs. 69, 72, 94) are GRANTED as to those Defendants, the Motions for Summary Judgment brought by the municipal defendants (Docs. 69, 71, 72, 94) are GRANTED as to those Defendants, the Motion for Summary Judgment brought by ASORT as to its capacity for suit (Doc. 70) is DENIED, the Motion for Summary Judgment brought by ASORT as to the substantive claims against it (Doc. 71) is GRANTED IN PART AND DENIED IN PART, Riley Snavely’s Motion for Summary Judgment (Doc. 94) is DENIED as to him, and the Motions for Summary Judgment brought by all other Defendants (Docs. 71, 72, 94) are GRANTED IN PART AND DENIED IN PART as to those Defendants.

I. BACKGROUND

This lawsuit arises under 42 U.S.C. § 1983 as well as state law. The gravamen of the complaint is straightforward: the Plaintiffs assert that the Defendants violated their rights under the fourth and fourteenth amendments of the constitution:

The Defendants have, under color of law, deprived Plaintiffs of clearly established rights, privileges and immunities secured by the Fourth and Fourteenth Amendments to the United States Constitution of which a reasonable person would have known. These rights include, but are not limited to, the right to due process of law and the right to be free of unreasonable searches and seizures and excessive force.

(Doc. 40 (“FAC”) at ¶ 70.)

The particulars of this litigation are more complicated. The Plaintiffs’ claims have led to hundreds of pages of briefing, thousands of pages of record evidence, and a 73-page R & R. It is, therefore, helpful to provide a broad summary of the facts of the case at the outset, although it is ultimately a full understanding of the details that are necessary to a proper resolution of the pending motions.

This litigation flows from unsuccessful efforts by law enforcement officials to apprehend a man named Joseph Foster, who had entered a home in Ontario, brandished a gun, and stolen certain property from the residents. (Doc. 87 (“Snavely Dep.”) at 5:21-22; see also Doe. 103-6 (“Snavely Nar.”).) Among the law enforcement officials searching for Foster was Ontario Police Detective Riley Snavely, who was approached by a previously unknown individual who claimed that Foster was hiding in a house on a particular street in Mansfield — -Burns Street. (See Snavely Dep. at 13:17-18; 8:15-24.)

For reasons not clear from the record, Detective Snavely and his supervisor, then-Acting Chief Dale Myers, decided to apprehend Foster with the help of the Allied Special Operations Response Team (“ASORT”), an organization that provides local municipalities with SWAT teams for assistance with high-risk search warrants. (Doc. 85 (“Myers Dep.”) at 9:24-10:5.) The team sent by ASORT to execute the warrant on Burns Street was led by Shelby Police Sergeant David Mack. (See Doc. 82 (“Mack Dep.”) at 19:2-19:22)

After beginning surveillance on Burns Street, the confidential informant reported that Foster had moved to a different location, South Main Street. (See Snavely Dep. at 14:5-11.) Detective Snavely then drove past the South Main location with the informant, another individual who was familiar with Foster, and Mansfield Detective Ed Schmidt. (See Snavely Dep. at 11:4-14.) The informant apparently reported seeing Foster standing on the front porch, although no law enforcement official corroborated that sighting, nor did the search warrant application include any reference to this sighting. (See id.\ see generally Doc. 103-3 (“Search Warrant”).)

Detective Snavely then appeared before a Magistrate, who signed a “knock-and-announce” search warrant listing South Main Street as the place to be searched, but containing facts relating only to Burns Street. (See Search Warrant at 2,5-6.) This discrepancy would have been apparent to anyone who glanced at page five of the document because the warrant prepared by Detective Snavely listed the factual basis for his belief that Foster was located on Burns Street on the same page that began to describe Foster’s physical characteristics. (See id.)

After the warrant issued, ASORT arrived at South Main Street to search for Foster. (R & R at 2-3.) As ASORT approached the house, ASORT Team Member and Ontario Patrolman John Mager prepared to throw a flash grenade inside the house, consistent with the operational plan. (Doc. 83 (“Mager Dep.”) at 15:15-16.) For some reason, the flash grenade detonated outside of the house moments after ASORT team members had begun to call out “police.” (See R & R at 3.) ASORT then entered the house.

The Plaintiffs allege that, while in the house, ASORT members used force on them in a variety of ways. Plaintiff Thomas Willis reports that he was thrown to the floor during ASORT’s entry, causing him to sprain his ankle. (R & R at 4.) Plaintiff Earl Fuller reports that he was placed in handcuffs, and that one of the law enforcement officials then put a foot on Fuller’s back and a gun to Fuller’s neck. (Id. at 5.) He further testifies that, although cuffed and suspected of no crime, he was kicked by Chief Myers after the conclusion of the search. (See Fuller Dep. at 37:11-21.) Plaintiff Kiana Smith reports that an officer held her at gun point, made her lift up her shirt and turn around to ensure that she didn’t have any weapons, told Smith to get face down on the floor, and then kicked Smith once she was on the floor. (See Doe. 86 (“Smith Dep.”) at 35:3-41:20.) Plaintiff Melanie Cline alleges that she was awakened by an “excruciating[ly] sharp pain running up [her] back and heavy pressure on top of [her] and [the feeling of] the barrel of a gun in the back of [her neck].” (R & R at 6.) She states that she was then placed in handcuffs and kept naked from the waist up while ASORT members searched her room. (R & R at 6.) There are also allegations concerning the use of force on two minor children, which the Court will discuss below.

Finally, the Plaintiffs assert that they were restrained for 25-30 minutes after the conclusion of the search, well past the point where the Defendants had determined that Foster was not present at their residence. (See Doc. 86 (“Smith Dep.”) at 50:6-19; R & R at 4-5.) This description of the timeline is consistent with testimony from one of the Defendants (see Doc. 98 (“Parella Dep.”) at 8:8-11), but disputed vigorously by others. (See, e.g., Myers Dep. at 24:1-23.)

Based on the above events, the Plaintiffs have asserted four discrete constitutional claims against the Defendants. The Plaintiffs argue that the Defendants: (1) obtained and executed an invalid warrant; (2) failed to “knock-and-announce” prior to commencing their search; (3) employed excessive force when executing the search; and (4) detained the Plaintiffs for a constitutionally unreasonable length of time after realizing that the Plaintiffs had not committed any crime. (See Doc. 122 (“Plaintiffs’ Obj.”) at 1-2.) The Plaintiffs also assert a number of claims arising under state law, which are discussed in more detail below.

II. STANDARD OF REVIEW

A. Summary Judgment

Defendants have moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Under Rule 56(c), summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

In reviewing summary judgment motions, this Court must view evidence in the light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir.2008). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir.2008). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards. Thus, in most civil cases, the Court will decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

Upon filing a motion for summary judgment, the moving party has the initial burden of establishing that there are no genuine issues of material fact as to an essential element of the nonmoving party’s claim. Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir.2009) (citation omitted); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 & n. 12 (6th Cir.1989). The moving party, however, is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the moving party relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In response, if the moving party establishes the absence of a genuine issue of material fact, to defeat summary judgment, the non-moving party “may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir.2009) (citation omitted). In this regard, “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment”; rather, “Rule 56 allocates that duty to the opponent of the motion, who is required to point out the evidence, albeit evidence that is already in the record, that creates an issue of fact.” Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 379-80 (6th Cir.2007) (citation omitted); see also Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir.2008) (citation omitted). Moreover, the non-moving party must show more than a scintilla of evidence to overcome summary judgment; it is not enough for the nonmoving party to show that there is some metaphysical doubt as to material facts. Matsushita Elec. Indus. Co., 475 U.S. at 586-87, 106 S.Ct. 1348; see also Barr v. Lafon, 538 F.3d 554, 574 (6th Cir.2008).

Accordingly, the ultimate inquiry is whether the record, as a whole, and upon viewing it in the light most favorable to the non-moving party, could lead a rational trier of fact to find in favor of the non-moving party. Matsushita Elec. Indus. Co., 475 U.S. at 586-87,106 S.Ct. 1348; see also Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (“The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict — whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” (emphasis in original) (internal quotations omitted)).

B. Report and Recommendation

On March 17, 2008, the Court referred this case to Judge McHargh for pretrial administration, pursuant to Title 28 of the United States Code, Section 636, and Local Rule 72.1. In cases that are referred to a magistrate judge for preparation of an R & R, the district court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” McClendon v. Challenge Fin. Investors Corp., No. 08-1189, 2009 WL 589245, at *2, 2009 U.S. Dist. LEXIS 17908, at *6-7 (N.D.Ohio Mar. 9, 2009) (quoting 28 U.S.C. § 636(b)(1)(C)). A court is only required to conduct a de novo review of the portions of an R & R to which the parties have made an objection, and the parties have a “duty to pinpoint those portions of the magistrate’s report that the district court must specially consider.” Cincinnati Ins. Co. v. Grand Pointe, LLC, 501 F.Supp.2d 1145, 1153 (E.D.Tenn.2007) (quoting Mira v. Marshall, 806 F.2d 636, 637 (6th Cir.1986)). In the absence of specific objections, a court may adopt conclusions reached by the magistrate judge without discussion. See Thomas v. Am, 474 U.S. 140, 149-52, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Crum v. Sullivan, 921 F.2d 642, 645 n. 1 (6th Cir.1990). While this principle is universal, it is particularly appropriate here, given that Judge McHargh issued a thoughtful 73-page R & R in response to many thousands of pages of briefing and exhibits.

III. THE DEGREE TO WHICH THE COURT WILL REVIEW THE R & R

The Parties have filed various briefs in response to the R & R. (See Docs. 114-120, 122.) These briefs, however, are problematic: it is difficult to characterize much of what is in them as actually responding to the R & R. At the most extreme end, for example, Defendant Riley Snavely does not even cite the R & R in briefing that he captions as “objections” to it. (See Doc. 117.) The Parties also attempt to incorporate their initial motions for summary judgment into their objections, essentially defeating the purpose of the referral in the first instance:

If a party files a general objection and incorporates other papers by reference and that approach undermines the purposes of the Magistrate’s Act, that party will have waived the right to appeal. Neuman v. Rivers, 125 F.3d 315 (6th Cir.1997). While a district judge plainly has authority to go back through the record to determine whether a report and recommendation! ] should be adopted, that approach would undermine the purpose of the Magistrate’s Act to provide assistance of subordinate judicial officers to Article III judges. If an Article III judge must repeat the process in which the magistrate judge engaged, instead of being directed to specific objections, what use is the reference?

Gonzales v. Wolfe, No. I:04cv208, 2006 WL 2792167, at *1, 2006 U.S. Dist. LEXIS 73370, at *3-4 (S.D.Ohio July 5, 2006), adopted, 2006 WL 2792162, 2006 U.S. Dist. LEXIS 69073 (S.D.Ohio, Sept. 26, 2006), affd, 290 Fed.Appx. 799 (6th Cir.2008); cf. Gonzales, 290 Fed.Appx. at 814 (accepting the unremarkable argument that a district court, rather than a Magistrate Judge, must ultimately review properly raised objections). Obviously, not every incorporation by reference will be inappropriate, but given the vastness of the record and the degree to which the parties in this case have sometimes argued about that record without actually citing to it, the parties have failed to preserve a number of potential objections.

IV. REQUIREMENTS FOR ESTABLISHING LIABILITY UNDER § 1983

All of the Plaintiffs’ federal claims arise under 42 U.S.C. § 1983, which requires the Plaintiff to “establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under color of state law.” Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.2006) (citations omitted). The Defendants in this action do not dispute that they acted under color of state law during any of the relevant events — accordingly, the question is simply whether the Plaintiffs suffered a depravation “of a right secured by the Constitution or laws of the United States” and were harmed thereby. Id. With respect to that question, not all unfair, unwise, or imprudent actions are constitutionally unreasonable. See Kostrzewa v. City of Troy, 247 F.8d 688, 689 (6th Cir. 2001). Law enforcement officials are allowed “latitude for honest mistakes,” even when those mistakes are difficult to understand with the benefit of hindsight. See Maryland v. Garrison, 480 U.S. 79, 87, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). Nevertheless, each and every citizen has meaningful constitutional rights that law enforcement officials may not violate. See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir.2004). These rights are not lessened merely because law enforcement officials elect to execute a search warrant with a SWAT team. Holland v. Harrington, 268 F.3d 1179, 1194-95 (10th Cir.2001) (“At all times, SWAT officers no less than others ... must keep it clearly in mind that we are not at war with our own people.”); (contra Doc. 76 (“Bammann Dep.”) at 61:12-62:9 (“If I’m at your house in a SWAT capacity we’re not dealing with a normal law-abiding citizen I would say at that point.”).)

If the Plaintiffs can show such a violation, they must then establish the propriety of recovery from any particular party. See Petty v. County of Franklin, Ohio, 478 F.3d 341, 349 (6th Cir.2007). Although this analysis begins with the familiar requirement that a specific defendant proximately caused the constitutional deprivation, establishing proximate cause within the context of § 1983 is sometimes quite “murky.” Wright v. City of Canton, 138 F.Supp.2d 955, 965 (N.D.Ohio 2001). So, too, even when an individual law enforcement official has proximately caused the deprivation of a constitutional right, that official will not be held liable unless that right was “clearly established” and that official has caused the deprivation in an “objectively unreasonable manner.” See Champion, 380 F.3d at 901.

A. Individual Liability

While lawsuits under § 1983 frequently provide “the only realistic avenue for vindication of constitutional guarantees,” Champion, 380 F.3d at 901 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)), those lawsuits also impose a cost on society, “including ‘the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.’ ” Id. It has long been recognized that officials cannot perform their jobs safely or effectively if their every split-second decision is analyzed with knowledge gained only through hindsight. See Kostrzeiva, 247 F.3d at 639 (citing Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Actions taken by law enforcement officials that appear unreasonable to a court weighing those actions over a period of months were not necessarily unreasonable when made in a matter of seconds under life-threatening pressure. See id. The doctrine of qualified immunity provides a balance: it holds that “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.” Champion, 380 F.3d at 901.

In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court established a two-prong test for evaluating the claim of qualified immunity. First, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Id. at 201, 121 S.Ct. 2151. Second, “if a violation could be made out on a favorable view of the parties’ submissions, the next ... step is to ask whether the right was clearly established.” Id. A motion for summary judgment on qualified immunity grounds must be granted unless the plaintiff can satisfy both prongs of the Saucier test. A court is not required to address the first question if it is evident that, even if a right was violated, that right was not clearly established at the time of the violation. See Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (“The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”).

The idea captured by the second prong of Saucier is that “an official could not ... fairly be said to ‘know” that the law forbade conduct not previously identified as unlawful.” Harlow, 457 U.S. at 818, 102 S.Ct. 2727. For this reason, plaintiffs bringing suit under § 1983 must show that “in the light of pre-existing law,” a reasonable officer would have understood that the actions for which he now faces suit were unlawful. Champion, 380 F.3d at 902. This inquiry must be undertaken with respect to the specific situation that an individual defendant faced. See id. It is not enough, for example, to show that an officer’s use of force exceeded the objective standard for reasonable force under Graham, rather, a plaintiff must show that any reasonable officer would have understood that the particular force he was using in that particular situation was excessive. See id. The Supreme Court and the Sixth Circuit have, however, rejected the contention that a right is only clearly established if the plaintiff can demonstrate the existence of a “fundamentally similar” or “materially similar” case. Grawey v. Drury, 567 F.3d 302, 313-14 (6th Cir.2009) (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). They have explained:

the question is whether the defendants had fair warning that their actions were unconstitutional. Thus, officials can still be on notice that their conduct violates established law even in novel factual circumstances. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

Id. (citations and quotation markings omitted); see also Champion, 380 F.3d at 902 (“[T]he fact that various courts have ‘not agreed on one verbal formulation of the controlling standard’ does not by itself entitle an officer to qualified immunity.” (quoting Saucier, 533 U.S. at 203, 121 S.Ct. 2151)). Because the focus is on whether the officer had fair notice that his conduct was lawful, reasonableness is judged against the backdrop of the law at the time of the conduct.

B. Municipal Liability

When plaintiffs seek to recover from a municipality, there is no requirement that a particular right be “clearly established,” but the plaintiffs must show that the municipality itself was the proximate cause of any deprivation. See Collins v. City of Harker Heights, 503 U.S. 115, 122, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992); Ford v. County of Grand Traverse, 535 F.3d 483, 495-96 (6th Cir.2008). There is no vicarious liability under § 1983 for the alleged torts of a municipality’s agents, rather:

It is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government entity is responsible under § 1983.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Board of County Commis. v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (“Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.”) (citation omitted). Simply put, to impose § 1983 liability upon a local governmental body, a plaintiff must show that the municipality itself is the wrongdoer. Collins v. City of Hark- er Heights, 503 U.S. 115, 122, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).

A plaintiff can establish that a municipality is the proximate cause of a violation under any of five theories: (1) express municipal policy, Monell, 436 U.S. at 660-61, 98 S.Ct. 2018, (2) “widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and well settled as to constitute a custom or usage’ with the force of law,” City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (quotation omitted), (3) the decision of a person with final policy making authority, Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), (4) the failure to act where the “inadequacy [of the existing practice is] so likely to result in the violation of constitutional rights, that the policymaker ... can reasonably be said to have been deliberately indifferent to the [plaintiff’s rights],” City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), or (5) ratification by a municipality of its employee’s unconstitutional acts by failing to meaningfully investigate and punish allegations of unconstitutional conduct, Fuller v. City of Oakland, 47 F.3d 1522, 1535 (9th Cir.1995); see also Leach v. Shelby County Sheriff, 891 F.2d 1241, 1247 (6th Cir.1989); Wright, 138 F.Supp.2d at 966 (“[Plaintiff] can establish his municipal liability claim by showing ... [that] a final municipal policymaker approved an investigation ... that was so inadequate as to constitute a ratification of their alleged use of excessive force.”).

V. THE LEGAL STATUS OF ASORT

Prior to considering the substantive merits of the Plaintiffs’ claims, this Court must consider whether one of the Defendants, ASORT, is subject to suit at all. ASORT asserts that it is immune from suit under the same principles that immunize municipal police departments, whereas the Plaintiffs assert, and Judge McHargh found, that “ASORT is an unincorporated association which is amenable to suit under federal law.” (R & R at 25.) The Court analyzes this issue somewhat differently than either the Plaintiffs or the Defendants suggest, but ultimately adopts Judge McHargh’s recommendation as to ASORT’s legal status.

A. The Structure and Scope of ASORT

ASORT was formed by a private entity, the Richland County Chiefs of Police Association (RCCPA). (R & R at 14-15.) ASORT’s designated 30(b)(6) deponent explained that the RCCPA:

meet[s] every Wednesday morning at 7:30 basically for breakfast and just [to] have general discussion about what is going on in the community. We probably are more of a social organization than anything.

(Doc. 84 (“Messer Dep.”) at 20:11-20) (emphasis added). This “social organization” sets at least some aspects of ASORT policy. (See Doc. 78 (“Combs Dep.”) 22:14-15) (“The [RCCPA] really makes decisions concerning personnel and/or training.”). Although ASORT has been represented by counsel throughout this litigation, that counsel does not appear to know how he came to be retained. (See 9/24/09 Hrg. Tr. at 9:23-10:15.)

The Commander of ASORT reports to the RCCPA. (Rush, et al. v. City of Mansfield, et al, Case No. 07-1068 (N.D.Ohio) (Doc. 169-5) (“ASORT Manual”) at 9.) The ASORT Commander at the time of the events in question, Lance Combs, testified, however, that he has never actually attended an “official” RCCPA meeting. (Combs Dep. at 24:16-17 (“I’ve had to attend Chiefs’ breakfasts as opposed to really official Chiefs’ meetings.”).) Indeed, Commander Combs testified that he does not know how it is he became the Commander of ASORT:

QUESTION: And how did you get selected as the commander?

ANSWER: My guess is that the [RCCPA] made that selection. I wasn’t privy to the selection process.

QUESTION: Did you apply for it? ANSWER: No.

(Combs Dep. at 21:5-11.) In sum, then, ASORT, which provides SWAT-type teams to area municipalities, was formed by a private social organization and is governed to some extent by that private social organization. This is a marked departure from the usual structure for multijurisdictional law enforcement agencies or teams. See, e.g., Petty v. United States, 80 Fed. Appx. 986, 987 (6th Cir.2003) (describing “a multi jurisdictional task force directed by the Federal Bureau of Investigation ....”); Ed Wittenberg, Euclid, Shaker Heights, South Euclid, University Heights Eye Joint Swat Team (April 8, 2010, available on-line at http://www.cleveland.com) (“The councils of all four cities will need to approve legislation ... for the plan [forming a regional SWAT team] to take effect.”); Trenton, Ohio Council Meeting Minutes (January 15, 2009) (“An Ordinance Authorizing the City Manager of the City of Trenton, Ohio to Enter Into a Memorandum of Understanding for Regional S.W.A.T. Team .... ” (capitalization changed throughout)).

Membership in ASORT is voluntary, but limited to law enforcement officials from the various police departments in Richland County. While ASORT itself is regulated by the RCCPA, the members of ASORT are subject to a variety of benefits and restrictions that are specific to their “home” police departments. Each municipality in Richland County has agreed to fund the cost of training and equipment for any one of their law enforcement officials that joins ASORT. (Id. at 15-16; Messer Dep. at 20:12-23:8.) ASORT members, as well, are governed by both ASORT policies and the policies of their home law enforcement agencies when on ASORT assignment. (Combs Dep. at 54:24-55:2.) Finally, ASORT asserts that home departments are responsible for discipline of their members (R & R at 15), although record indicates that no home department has ever disciplined a member of ASORT for actions taken when deployed by ASORT.

If ASORT members are bound in scope by certain requirements of their home departments, ASORT itself is not. ASORT may choose to accept or reject requests for assistance from any of the area municipalities. (Combs Dep. at 91:16-17 (“The [ASORT] team leader has the authority to accept or deny [a] mission.”).) So, too, ASORT may enter a municipality even when no official from that municipality has requested their help directly and even without notice to any official in that municipality. (See 9/24/09 Hrg. Tr. at 48:21-49:8.)

B. The Parties’ Arguments

ASORT argues that it is not subject to suit because it is a “government unit.” ASORT asserts that it:

is a statutorily authorized cooperative between municipalities, specifically assembled for the purposes of furthering law enforcement. Were [ASORT] simply a police unit of a single municipality, the police unit would not have capacity to be sued, and Plaintiffs’ claims would be treated as against the municipality. Indeed, the Magistrate Judge implied that if the incident in question involved an impromptu, collective response from various police departments, there would be not capacity to sue the collective. [ASORT’s] cooperative configuration does not present a situation so different as to apply Fed. R. Civ. P. 17(b) where it would not normally be applied to governmental units.

(Doc. 114 (“ASORT Obj.”) at 3) (citations omitted) (emphasis added). ASORT, however, is not part of any particular municipality, which raises the question as to whom, if anyone, ASORT believes is subject to suit if an ASORT policy (as distinct from home department policies) proximately causes the deprivation of a constitutional right.

ASORT adopted a somewhat cryptic stance when confronted with that question:

THE COURT: Okay. If in fact I find that a constitutional violation occurred, so say hypothetically Mansfield calls out ASORT for a search in Mansfield and I find that members of the ASORT team, not necessarily Mansfield officers, but members of the ASORT team engaged in conduct that would constitute a constitutional violation ... is then Mansfield [potentially] liable for their activities because they have called them in and therefore deputized them for purposes of their own governmental activity, or do you believe that each entity that sent someone there is responsible for their activities, or is nobody responsible for their activities?

ASORT COUNSEL: Well, Your Honor,

we would argue that it is the home department municipality that is ultimately bearing the responsibility for the officers. It is a collective group of those police departments and those municipalities, and we would consider that they are dictated by their own policies. Therefore, if the officer from a specific home department acts outside the scope of those policies or creates a constitutional violation through his actions, that home department municipality employer would be the entity that is actually capable of being sued.

THE COURT: All right. So you don’t believe in the hypothetical that I have posed that Mansfield would have any responsibility for calling out these members, other than for the activities of its own officers, if they happen to even be on the team?

ASORT COUNSEL: That’s correct, Your Honor I would propose to you that again, the ASORT team members are voluntarily signing up to be part of this, and each collective home department allows them to volunteer for that purpose. Based upon that, I guess, volunteering of the officers, the home department policy still dictates ....

(9/24/09 Hrg. Tr. at 4:9 — 6:4) (emphasis added).

ASORT seems to argue that it does not truly have its own policies when it contends that ASORT “would consider [team members’ actions to be] dictated by their” home department policies. But there is substantial testimony and evidence indicating that ASORT does have its own policies, for example, there is an ASORT manual that contains policies (See Rush, et al. v. City of Mansfield, et al, Case No. 07-1068 (Doc. 169-5) (“ASORT Manual”), Commander Combs testified that he is responsible for ASORT training (Combs Dep. at 22:18-19), and ASORT counsel argued that the RCCPA is responsible for ASORT training (4/9/09 Hrg. Tr. at 44:5-8 (“THE COURT: So this social organization [the RCCPA], as you call it, sets the standards for the training? COUNSEL: Correct. And it is actually in the ASORT policy manual.”); contra Eversole v. Steele, 59 F.3d 710, 717 (7th Cir.1995) (“Because the Task Force was nothing more than a joint effort of four counties in the State of Indiana to implement existing law enforcement policies, no new or unique policies were needed.”). ASORT, then, does not provide a plausible argument as to what entity it believes is subject to suit if one of ASORT’s policies leads to a constitutional violation.

The Plaintiffs dispute the Defendants’ characterization of ASOKT and contend that Judge McHargh was correct to conclude that ASORT is subject to suit as an unincorporated association. See Fed. R. Civ. P. 17(b)(3)(A) (“[A] partnership or other unincorporated association with no such capacity under that state’s law may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws.”); (see also R & R at 11.) The Plaintiffs offer a number of reasons in support of this assertion, most straightforwardly that ASORT cannot be said to be a part of any particular municipal or state agency and that ASORT must be something. (Cf. R & R at 14 (“ASORT does not contend that it is a subdivision of a governmental agency or that it is itself a police department.”).)

A. Analysis

The implication that follows from ASORT’s arguments — that the Plaintiffs have no recourse if ASORT’s policies and procedures have proximately caused the deprivation of their constitutional rights— is a radical one. ASORT’s attempt to minimize this contention by way of analogy to a municipal police department misses the point. A suit against that police department is simply a suit against the municipality, because a tort “by the police department” is actually a tort by the municipality. In contrast, ASORT appears to contend that citizens who are subjected to a tort “by ASORT” have no identifiable recourse.

The Defendants’ contention is particularly troubling because ASORT was formed by a private organization. The suggestion that a private social organization could form a SWAT-type team that would be immune from suit certainly goes against the original intent behind § 1983, which was enacted to allow recourse against a private “law enforcement” entity whose policies, practices, and procedures deprived citizens of their civil rights. See Gay-Straight Alliance v. Sch. Bd., 477 F.Supp.2d 1246, 1250 (S.D.Fla.2007) (discussing the history of § 1983); cf. Romanski v. Detroit Entm’t, L.L.C., 428 F.3d 629, 637 (6th Cir.2005) (“[W]hen the state delegates a power traditionally reserved to it alone — the police power — to private actors in order that they may provide police services to institutions that need it, a plaintiffs ability to claim relief under § 1983 [for abuses of that power] should be unaffected.’ ” (citations omitted)).

ASORT’s claim that it is not subject to suit as an “unincorporated association” because it is a “government unit” is based upon a mistaken understanding of Rule 17 and is not well-taken: ASORT is governed by a private entity, and it appears that no municipality exercises any control over ASORT or its activities. ASORT meets the definition of an unincorporated association under Rule 17(b)(3)(A) and is subject to suit as such. So, too, although ASORT contends various forms of immunity under Ohio law, no provision of state law alters this conclusion. The Court explains this analysis below.

1. Whether ASORT is a “Government Unit”

As previously explained, ASORT contends that it is not subject to suit because it is a “government unit.” (ASORT Obj. at 2 (quoting Dean v. Barber, 951 F.2d 1210, 1215 n. 4 (11th Cir.1992)).) To evaluate this contention, the Court must begin by considering the meaning of the term “government unit.” It is not found within the Federal Rules, but is, rather, a term employed by the Eleventh Circuit to explain that a state or municipal entity otherwise not amendable to suit is not made subject to suit in that circuit through the operation of Rule 17(b)(3)(A). See id. In particular, the Eleventh Circuit has reasoned that only private parties can be unincorporated associations within the meaning of Rule 17(b)(3)(A). See Dean, 951 F.2d at 1215 n. 4; but see North Carolina League of Municipalities v. Clarendon Nat’l Ins. Co., 733 F.Supp. 1009 (E.D.N.C. 1990) (“Plaintiff ... is an unincorporated association of various units of local government within North Carolina....”).

The problem for ASORT, even assuming that the Sixth Circuit would follow the Eleventh on this issue, is that ASORT is not a “government unit[ ], subdivision^] or agenc[y].” ASORT is governed by a private organization, and, to the extent there is evidence in the record that the leader of ASORT reports to any authority higher than himself for purposes of setting ASORT’s policy, practices, or procedures, that authority is vested in this same private organization. This alone would seem to establish that ASORT is not a “government unit[ ], subdivision^] or agenc[y].”

Although ASORT points this Court to an Ohio statute that allows municipalities to form multijurisdictional police task forces, that statute does not somehow transform ASORT into a unit of government. The relevant statute, which authorizes municipalities to “allow [their] police officers to work in multijurisdictional ... task forces,” provides in full:

The legislative authority of any municipal corporation, in order to obtain police protection or to obtain additional police protection, or to allow its police officers to work in multijurisdictional drug, gang, or career criminal task forces ... may enter into contracts ... for services of police departments or the use of police equipment or for the interchange of services of police departments or police equipment within the several territories of the contracting subdivisions.

O.R.C. § 737.04. This statute does not address the public or private character of the tasks forces themselves, however. The agreement between the municipal defendants in this case, conspicuously absent from ASORT’s briefing, emphasizes this:

[T]he law enforcement agencies of Rich-land County agree to be called upon to send available units to assist in emergency calls for service in the other Rich-land County law enforcement jurisdictions, and all law enforcement agencies request immediate assistance through 911/ or Mansfield, Shelby, Ontario, and Lexington dispatch if any dispatching agency is unable to reach the affected agency’s contact points. In the event an agency receives an emergency call for service for another agency’s jurisdiction and can’t reach the agency’s contact point, that agency shall notify the closest unit(s) available to respond to the emergency call for service. The dispatching agency shall continue to try to contact the affected agency jurisdiction until that agency is notified and responds and/or handles all follow-up investigation.

All law enforcement agencies of Rich-land County also agree to send specialized unit [sic], (e.g., Allied Special Response Team members, K-9 Officers, Dive Team members) when available, to assist with emergency calls for service. Agencies may call for mutual aid for other calls as agreed upon at the time of calls.

(Doc. 103-3 at 1) (emphasis added). While this agreement provides that the various municipalities in Richland County will allow members of ASORT to participate in ASORT when called, it does not describe the creation of a joint task force within the meaning of § 737.04 and does not describe ASORT as a unit of government.

ASORT also seems to argue that it is a government entity because it is performing a traditional municipal function, but this is exactly wrong: that ASORT is performing a traditional municipal function is what makes it subject to suit under § 1983, not what makes it immune from it. See Romanski, 428 F.3d at 637 (“[W]hen the state delegates a power traditionally reserved to it alone — the police power — to private actors in order that they may provide police services to institutions that need it, a plaintiffs ability to claim relief under § 1983 [for abuses of that power] should be unaffected.’ ” (citations omitted)). It is true, of course, that the members of ASORT are themselves public officials who receive their equipment .and salaries from local municipalities, but this does not automatically make ASORT a part of those municipalities. As the Eighth Circuit explained in an analogous context:

the [defendant entity] was not created by the Constitution or by any statute ... and ... it is not ‘the State’ or an ‘agency of the State’ as are agencies like the ... Highway Department, or the ... Game & Fish Commission.... Rather, the [defendant is] established and supported by local school systems ... on a voluntary basis. Thus, it is not immune from suit.

Wright v. Arkansas Activities Ass’n, 501 F.2d 25, 27 (8th Cir.1974) (quoting the district court). This same distinction applies here: that ASORT is supported by municipalities does not make it a part of those municipalities.

In sum, the Court concludes that, because ASORT is formed and governed by a private organization, it is not a government unit, subdivision, or agency. Whatever the reach of the Eleventh Circuit’s reasoning in Dean, it does not extend to an entity such as ASORT, which is not part of a state, municipality, or group of municipalities.

2. Whether ASORT is an Unincorporated Association Under Rule 17(b)(3)(A)

Given that ASORT is not a government unit, the Court must still define what, precisely, it might be. The Plaintiffs suggest, and the R & R found, that ASORT is an “unincorporated association” under Rule 17(b)(3)(A). This Court agrees.

Although the term “unincorporated association” is not defined in the Federal Rules, the “Supreme Court has defined an unincorporated association as ‘a body of persons united without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise.’ ” Hazel v. Beta Omicron Chptr. of Sigma Nu Fraternity House Corp., Case No. 4:08cv46, 2009 WL 677325, at *2, 2009 U.S. Dist. LEXIS 19878, at *6-7 (E.D.Tenn. Mar. 12, 2009) (citations omitted). It has been said that “voluntary and knowing membership is the hallmark of’ such an association. Boynton v. Headwaters, Inc., 252 F.R.D. 397, 401 (W.D.Tenn.2008).

As Judge McHargh explained, this definition is apt here:

In the case before this court, the formation and purpose of ASORT, and the structure' and composition of ASORT and its teams, was not “left to chance.” A structure and manual were put into place to govern the composition and procedures of ASORT and its teams. Similarly, the decision to deploy ASORT to serve the search warrant, and the composition, role, and procedures of the ASORT team which served the warrant were not random events, but deliberate choices, guided by ASORT policies. The ASORT team which served the warrant was a pre-existing group (with two additions from the other ASORT team), organized in advance for the very purpose of serving warrants, not a random group of police officers from different jurisdictions spontaneously composed for mutual assistance, for example, to respond to an unexpected disaster or riot.

(R & R at 24) (internal citations omitted). ASORT itself notes that it “was formed by [a private entity] in order to respond to tactical operations and high risk situations” and that membership in ASORT “is purely voluntary.” (Doc. 70-1 (“ASORT MSJ”) at 1.) In other words, ASORT is “a body of persons united without a charter,” each of whom is a “voluntary and knowing” member. See Boynton, 252 F.R.D. at 401. Indeed, ASORT all but concedes that it meets this definition: it simply argues that it should be considered a government unit and that government units are by definition not unincorporated associations. As discussed above, ASORT is not a government unit and there are no grounds to concluded that it is; ASORT, rather, is an unincorporated association.

3. Ohio Law Does Not Immunize ASORT from Suit in Federal Court

ASORT contends that, if it is an unincorporated association, Ohio law acts to immunize ASORT from suit. While Ohio law allows suits against unincorporated associations, see O.R.C. § 1745, ASORT contends that it is impermissible to sue both an unincorporated association and its members under that law. There are three reasons why this argument is not well-taken. First, state procedural law ordinarily does not govern the right to sue in federal court. Solectron United States, Inc. v. Fedex Ground Package Sys., 520 F.Supp.2d 904, 910 (W.D.Tenn.2007) (“[T]he right to sue in federal court is different from the right to sue in state court, and the [right to sue in federal court] is governed by federal [procedural law] rather than state law.” (quoting Long v. Richardson, 525 F.2d 74, 79 (6th Cir. 1975))). Even if the courts of Ohio were to force state litigants to choose between suits against an unincorporated association and its members in all cases, it is not clear that such a rule would have any force in federal court.

Second, it does not appear that Ohio procedural law bars a plaintiff from bringing suit against both an unincorporated association and its members as ASORT contends. The statute itself certainly contains no such express limitation. It is unlikely, moreover, that the dicta in the 1961 Ohio Supreme Court case upon which ASORT relies for this proposition, Lyons v. American Legion Post Realty Co., could override the plain reading of the statute. The question before the court in Lyons was whether O.R.C. § 1745.01 abrogated the right to sue individual members of an unincorporated association, a question that court answered in the negative; “[w]e think the new statutes are no more than cumulative and do not abrogate the right to sue the members of the associations if the suitor chooses to proceed in that way.” Lyons v. American Legion Post No. 650 Realty Co., 172 Ohio St. 331, 175 N.E.2d 733, 736 (1961). The 1961 court also wrote, however, that “[w]here a statute gives a new remedy without impairing or denying one already known to the law, the rule is, to consider it as cumulative, allowing either the new or the old remedy to be pursued at the option of the party seeking redress.” Id. at 735 (emphasis added) (quotation marks and citation omitted). There was no particular reason for the Lyons court to consider the question of whether the remedies where mutually exclusive, however, since the unincorporated association was not a named defendant in that case. It does not seem, moreover, that any court has ever read the Lyons dicta as does ASORT. Subsequent Ohio courts, in fact, have allowed plaintiffs to sue both an unincorporated association and its members. See East Canton Educ. Ass’n v. McIntosh, Case No. 96-CA-0293, 1997 Ohio App. LEXIS 3957, at *37 (Ohio Ct.App. Aug. 18, 1997); Recknagel v. Bd. of Managers of Edenwood Condominium Oumers Association, No. 1736, 1983 Ohio App. LEXIS 14099, at *1 (Ohio Ct.App. May 9,1983).

Finally, to the extent that the dicta in Lyons might require an election of remedies in some circumstances, it would not do so on these facts, where the basis of liability against the unincorporated association is different from the basis of liability against the unincorporated association’s members. ASORT is only liable to the extent that it, as distinct from its individual members, proximately caused the deprivation of a constitutional right. See Petty, 478 F.3d at 349; Austin, 195 F.3d at 728. The individual members of ASORT, for their part, are only liable to the extent that they, as distinct from ASORT itself, proximately caused the deprivation of a clearly established constitutional right. See Petty, 478 F.3d at 349; Champion, 380 F.3d at 901. Conversely, Lyons involved a situation in which the basis for liability against the unincorporated association and its members was identical.

For each of these three reasons, the argument that Lyons acts to immunize ASORT from suit is not well-taken.

C. ASORT is Subject to Suit as an Unincorporated Association

In sum, the Court agrees with Judge McHargh that ASORT is subject to suit as an unincorporated association and DENIES ASORT’s Motion for Summary Judgment (Doc. 70) to the extent that it is based on the argument that ASORT is not sui juris. ASORT is not a government entity, meets the definition of an unincorporated association under Rule 17(b)(3)(A), and is not somehow shielded from suit by Ohio law. Whether ASORT is actually liable in this action, of course, will depend upon whether it proximately caused a violation of a constitutional right. See Petty, 478 F.3d at 349; Austin, 195 F.3d at 728.

VI. WHETHER THERE IS LIABILITY UNDER § 1983 BECAUSE THE WARRANT WAS INVALID

The Court begins its examination of the Plaintiffs’ substantive claims by reviewing the allegation that the warrant was invalid. There is, as Judge McHargh observed, no contention that this case falls within some exception to the warrant requirement, nor would the assertion of some exception appear to be well-taken. (R & R at 39.) In this case, accordingly, if the warrant was invalid, the Plaintiffs were subjected to an unconstitutional search. {See id.) The converse, of course, is not true, it is possible for a warrant to be valid and for aspects of the search to be unreasonable, but that is an “entirely different matter.” Baranski v. Fifteen Unknown Agents of the BATF, 452 F.3d 433, 441 (6th Cir.2006) (en banc) (quoting United States v. Basham, 268 F.3d 1199, 1204 (10th Cir.2001)). At this stage of the analysis, the Court considers only the warrant itself.

A. Relevant Facts

On September 12, 2006, Detective Riley Snavely was approached by an individual who claimed to know that Joseph Foster, a suspect in one of Detective Snavely’s investigations, was staying at a home on Burns Street. (Snavely Dep. at 13:17-18.) Although Snavely had not previously interacted with this person and did not know whether any other law enforcement official ever had, he believed the individual to be trustworthy because this person’s “cellular phone number was used in communications with Joe Foster.” {Id. at 8:15-24.) Detective Snavely explained what happened next:

The informant advised me that he had planned and set up to meet with or could set up to meet with Joe if, you know, we could provide some relocation funds for him to relocate.... And at some point, we locked in with, yes, we can do it and it will be Furtherance of Justice funds.... At that point in time, [the informant] said he would make contact with [Foster] and [the informant] would get back with me. He recontacted me— this is early in the afternoon — and said that he had set up the meet with [Foster] very soon. And I told [the informant] I couldn’t meet just very soon; it takes time to make these things happen, and he would have to work off of the schedule that I could work with; but I couldn’t make things happen any faster than what was reasonable for me to establish a perimeter and enough people for a perimeter and things of that nature.

Several hours had gone by where [the informant] had been on and off the phone with me and Joseph Foster and indicated that Joe was starting to get very jumpy and edgy and didn’t stay in one place very long and if we didn’t hustle up he was going to move on and he may not be able to reach him, he may not be able to locate him. But at that point in time, he believed that [Foster] was at 618 Burns.... I explained to Lieutenant Hutchinson and Officer Hill that ... we were going to be setting up surveillance on 618 Burns and that the informant was going to make contact with him at 618 Burns and if anything changed I’d call back, but I would need them to print the search warrant when I was ready.

(Id. at 12:9-14:4) (questions omitted).

After setting up surveillance on 618 Burns Street, the confidential informant reported that Foster had moved to 347 South Main Street. (Snavely Dep. at 14:5-11.) For this reason, Snavely asked Captain Myers (then-Acting Chief Myers) to surveil that location. Myers explains:

ANSWER:.... I arrived back at the station at approximately 8:00 p.m. At that point, Detective Snavely told me that he needed me as far as the surveillance team to watch the house while the ASORT team arrived for a briefing. And then I responded to the area of the residence in question and conducted surveillance of the residence.

QUESTION: About what time did you start your surveillance?

ANSWER: I don’t know what time I started here, but it wasn’t very long. QUESTION: “Here” being?

ANSWER: Here at the police station while it was discussed. And then we decided that we needed to surveil the residence while we gathered the ASORT team and conducted a briefing so they could serve the search warrant.... I know I was there for a while at my location.

QUESTION: Okay. Then what happened? So you go and do your surveillance.

ANSWER: We watched the house. Several conversations with Detective Snavely over the cell phone. They made a couple drive-bys to ensure the proper location of the residence they were going to hit.

QUESTION: Was there anything obstructing — anything between you and your view of the front of 347 South Main?

ANSWER: No, I had a clear shot----

(Myers Dep. at 14:18-15:14; 17:2-4.)

After Myers set-up surveillance, Snavely drove past 347 South Main with the informant, another individual who was familiar with Foster, and Mansfield Detective Ed Schmidt. Snavely testifies:

I did a drive-by of the residence with Detective Ed Schmidt and two of the persons that provided the information that day as to Joe Foster’s whereabouts. And the informant said something to the effect of, oh, poop, for lack of better terms, there he is right there in the doorway. And I’m driving, and I had traffic. And I didn’t look left to see Joe Foster standing in the driveway — I mean in the doorway. But I had him, another subject, and Detective Schmidt in the car with me. It’s my understanding that Detective Schmidt saw the subject standing in the doorway, but I’m not certain of that.

(Snavely Dep. at 11:4-14.) As the Plaintiffs note, moreover, “the records made contemporaneously with the events do not [even] mention Foster being on the front porch.” (Plaintiffs’ Opp. at 61; see also Snavely Nar.)

QUESTION: What time was that?

ANSWER: As far as time, I don’t recall. It was, you know, probably 8:30, 9 o’clock. I’m just ... kind of guesstimating at the time.

(Id. at 14:14-17.) There is currently no testimony that Myers, Snavely, Schmidt, or any other law enforcement official ever observed Foster at 347 South Main, even though Myers, Snavely, and Schmidt were all performing some level of surveillance at the time that the confidential informant reported seeing Foster.

After his conversation with the informant, Snavely appeared before a Magistrate and sought a warrant for 347 South Main Street, located in Mansfield, Ohio. Detective Snavely explained his conversation with the Magistrate:

I told Mm that, you know, we had been trying to locate Joe Foster and we really exhausted our efforts trying to get him into custody. Due to the fact that he used a handgun in the commission of this crime, we were concerned about another crime taking place with a handgun and that, you know, we had been pretty much through a rat race that day trying to get him in custody. A lot of things had changed, and it was just hectic. And I was trying to juggle a lot of things, actually, all by myself.... I told him [we wanted a warrant for] 347 South Main. That’s where we were headed.... I believe I explained to [the Magistrate] that [the informant] was originally going to meet [Foster] at 618 and then found out that [Foster] moved to South Main.

(Id. 18:11-19:5.) Notwithstanding this testimony, the warrant that actually issued included an affidavit attesting only to facts relating to 618 Burns Street. (Search Warrant at 5.) Indeed, viewing the facts in the light most favorable to the Plaintiffs, the only non-conclusory fact to which Detective Snavely could have testified with respect to 347 South Main is that an individual, unknown to Snavely prior to the events of this case, had exchanged phone calls with Foster in which Foster claimed to be at the Burns road address and alleged that he [the informant] glimpsed Foster in the doorway of the South Main Street address. (See Snavely Dep. at 11:4-23:13; Doc. 94-1 (“Snavely Aff.”) at ¶ 12.)

It appears that neither Snavely nor any other officer ever reviewed the affidavit included with the warrant, even though the affidavit was on the same page that included the beginning of what the Defendants argue was the “true” warrant. (See Search Warrant at 5 (including the “factual basis” for the warrant on the same page authorizing “nighttime” entry).) For example, ASORT Team Leader Mack, who lead the team executing the warrant, stated: “due to the fact that I have not worked with Ontario that closely on warrants before that I wanted to make sure their paperwork was in line before I proceeded.” (Mack Dep. at 22:3-6.) Nevertheless, he “just read the search warrant and made sure it was signed” (id. at 24:2-4), apparently without ever glancing at the middle of page five.

B. Applicable Law

The Court looks first to the affidavit supporting the warrant when assessing a warrant’s validity. See United States v. Frazier, 423 F.3d 526, 531 (6th Cir.2005