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City of Flint, investigator defend warrantless search for suspected water theft
Gary Ridley | gridley@mlive.com By Gary Ridley | gridley@mlive.com
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on May 14, 2015 at 12:00 PM, updated May 14, 2015 at 12:20 PM
FLINT, MI -- A special investigator of water theft in Flint claims he was acting in accordance with city ordinance despite a lawsuit claiming he searched a home without a warrant.
Marcus Mahan made the claim May 8 in response to a lawsuit filed against him and the city of Flint stemming from an investigation into suspected water theft at a home on the city's south side.
Simeon King filed a federal civil rights lawsuit April 16 in Detroit U.S. District Court after he was arrested and charged in 2014 with obstructing an investigation at his girlfriend's home. The charge was later dismissed by a judge who ruled a warrant was required for the search.
King claimed in the lawsuit that Mahan, a former high-ranking member of the city's detective bureau who was deputized by Genesee County Sheriff Robert Pickell to conduct investigations for the city, illegally entered the home without a warrant or consent.
However, Mahan, in his response filed by attorney Michael Guss, claimed that he believed his actions were just and lawful based on city ordinance.
Guss and City Attorney Peter Bade could not be reached for comment on the case.
Mahan searched the home, citing a city ordinance that allows warrantless searches and inspections on water meter connections, according to the lawsuit.
However, King's Farmington Hills-based attorney, Thomas M. Loeb, said Mahan was required to get a warrant to conduct the search.
"Just because there's an ordinance, it doesn't give him a right to force into the home," Loeb said.
Gerald A. Fisher, a professor with Western Michigan University Cooley Law School and former municipal attorney, said after the case was filed that such searches are typically conducted with a warrant.
However, a municipality can pass an ordinance that allows utility workers to enter homes for regular inspections of utility property.
Fisher questioned the legitimacy of how Flint was using such an ordinance, claiming that it doesn't give workers the right to single out properties and conduct searches on them. Usually, Fisher said, the city creates a regular procedure for such administrative searches.
He further questioned the city's use of a law enforcement officer to conduct an administrative search.
"Typically, it's someone associated with an administrative activity," Fisher said.
Mahan's response to the allegations claimed that the city's use of the ordinance has never been ruled illegal or unconstitutional and that he believed he was acting within the law at all times.
The city, in its response to the lawsuit, also claimed that Mahan's actions were justified and that its ordinance has never been deemed unconstitutional.
The lawsuit alleges King was staying at his girlfriend's Burroughs Avenue home on April 25, 2014, when Mahan knocked on the door around 10:45 a.m. When King answered the door, Mahan entered the home, according to the lawsuit.
King, of Grand Blanc Township, claims in court documents that he asked Mahan to leave, but Mahan refused. The lawsuit alleges Mahan then identified himself as a Flint police sergeant and demanded the right to enter the home to search and investigate a water hook-up.
The lawsuit claims King explained to Mahan that it was not his home and he could not give him permission to enter. However, Mahan refused to leave and repeatedly threatened King with arrest if he didn't allow him to search the home, according to the lawsuit.
King claims Mahan demanded that he show him his driver's license and tell him the name of his girlfriend, which King refused to do, the lawsuit alleges.
Mahan continued to threaten King with arrest and told him he would get a search warrant, but King still refused to allow the search, according to the lawsuit.
King claims Mahan then called in a uniformed officer for backup, allowed the officer inside the home and told King that the officer would arrest him if he did not give Mahan permission to search the home.
Mahan also demanded that King provide the uniformed officer with his driver's license or face arrest. This time, the lawsuit claims, King agreed to hand over the license.
The lawsuit claims Mahan then began searching the house under the authority of the city ordinance.
King claims Mahan went to the home's basement and looked at the water meter. But, Mahan also went into the kitchen and began going through cupboards and drawers, the lawsuit claims. |
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