# Ruby v. Horner

> Court of Appeals for the Sixth Circuit · June 26, 2002 · 39 F. App'x 284

URL: https://www.frixlaw.com/law-library/cases/7209687

## Case

- **Full name:** Johnie R. RUBY, Nina Darlene Ruby v. Charles HORNER, Todd Bryant, City of Portsmouth
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** June 26, 2002
- **Citations:** 39 F. App'x 284
- **Precedential status:** Published
- **Opinion:** Dissent by Guy
- **Judges:** Batchelder, Guy, Walter
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

RALPH B. GUY, Jr., Circuit Judge,
dissenting.
I respectfully dissent. I believe the issue of absolute immunity is ripe for disposition. The denial of quasi-judicial absolute immunity is immediately appealable. Barrett v. Harrington, 130 F.3d 246, 252 (6th Cir.1997). But judicial immunity does not cover obtaining and executing a search warrant. Judicial immunity is available for a police officer’s testimonial acts but not his nontestimonial acts. Spurlock v. Satterfield, 167 F.3d 995, 1001-03 (6th Cir.1999). Obtaining and executing a search warrant is nontestimonial. Qualified immunity is sufficient to protect an officer performing investigative work. See Mal *288 ley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986).
Second, I would grant qualified immunity to the police officers. The search of the restaurant was not supported by probable cause because it was based on unsubstantiated anonymous tips. But that does not end the inquiry. Police officers are entitled to qualified immunity if the constitutional rights they are alleged to have violated were not “clearly established.” Saucier v. Katz, 533 U.S. 194 , 121 S.Ct. 2151 , 2156, 150 L.Ed.2d 272 (2001). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley, 475 U.S. at 341 , 106 S.Ct. 1092 .
The police in this case did not rely on one anonymous tip. 1 They received tips over several years. Three tips, including one in 1998, stated that Robert Ruby was selling drugs from the restaurant. The police knew that Robert’s residence and the restaurant were in the same building. Regardless of who owned the building and whether there was a connecting door, Robert Ruby could have had ready access to the restaurant to sell drugs as described in the anonymous tips. 2 Most significantly, the police did not seek a warrant based solely on the anonymous tips. The police sought a warrant only after Robert Ruby was arrested with a significant amount of cocaine. A police officer could have reasonably believed that Robert’s arrest with possession of cocaine corroborated the multiple anonymous tips. See United States v. King, 227 F.3d 732, 742 (6th Cir.2000) (police knowledge of person’s involvement as supplier of cocaine corroborated information from informant).
The police contacted the restaurant’s security company before executing the search. This shows that they believed that the warrant covered the entire building. The warrant identified the place to be searched as the gray one-story frame structure, and then described the restaurant and apartment in the building. The supporting affidavit not only described how Robert refused to consent to the search of his “residence,” it also described the anonymous tips that alleged he was selling drugs from the restaurant.
I would find on this record that the police officers reasonably believed that the warrant was supported by probable cause and covered both the restaurant and the apartment. This is not a case of plain incompetence or knowing violation of the law.
. See United States v. Martinez, 1997 WL 26461 (6th Cir. Jan.22, 1997) (unpublished disposition) (distinguishing United States v. Leake, 998 F.2d 1359, 1365 (6th Cir.1993) (with only one informant) from an affidavit noting six separate informants with corroborating stories).
. Johnie Ruby stated in his affidavit that the police allegedly asked the security company not to notify plaintiffs of the impending search. These hearsay statements do not show that the officers knew who owned the restaurant before they contacted the alarm company. Thus, if the officers learned that Robert did not own the restaurant after the warrant was issued, they could still reasonably believe there was probable cause to search the restaurant, particularly since they would have learned that a person with the same name (who turned out to be the brother of Robert Ruby) owned the restaurant. See Yancey v. Carroll County, 876 F.2d 1238, 1243 (6th Cir.1989).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7209687. Public record. Not legal advice.