                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0835n.06
                            Filed: December 11, 2007

                                           No. 06-1850

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


RAYMOND M. BLAKE,                                 )
                                                  )
         Plaintiff-Appellant,                     )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
COUNTY OF LIVINGSTON et al.,                      )   EASTERN DISTRICT OF MICHIGAN
                                                  )
         Defendants-Appellees.                    )


         Before: MARTIN, GIBBONS, and SUTTON, Circuit Judges.


         SUTTON, Circuit Judge. Raymond Blake challenges the district court’s rejection of his

§ 1983 claims against several employees of Livingston County and Unadilla Township as well as

against the Township itself. We affirm in part, reverse in part and remand the case to the district

court.


                                                 I.


         In October 2001, Raymond Blake responded to Nancy Bailey’s personal advertisement on

Matchmaker, an online dating service. After exchanging several online messages, Blake and Bailey

met for dinner in Ann Arbor, Michigan, on Friday, October 12. During the date, Bailey talked about

her work as an artist, gave Blake her art flier, which listed her home-business address, and told him

that he could “stop by any time” as long as he “call[ed] first.” JA 730. As the date was winding
down and the two were sharing past “bad experience[s],” JA 753, Blake told Bailey that another

Matchmaker member, “Shamalama,” “had been defaming [his] name [by] alleging that [he] was a

stalker,” JA 754. After returning home from dinner, Blake sent Bailey an email, thanking her “for

a great evening” and stating that they “[w]ill need to do it again sometime.” JA 1226. Bailey

responded by thanking Blake for dinner and saying that “[i]t was fun gettin to know ya a little.” Id.


       The following day, while Blake was on Matchmaker, he suspected that Salima

Rahaman—a.k.a. Shamalama—had talked to Bailey about him. At 7:13 that evening, he left a

message on Bailey’s answering machine, questioning whether Bailey was “screening” her calls and

saying that he was “just . . . calling.” JA 1544. Nine minutes later, he left another message, saying

that he “was thinking about [going to] a late movie.” Id. Recognizing that Bailey was “too

perceptive for [his] trivial efforts,” Blake sent Bailey an email at 11:16, in which he “confess[ed]”

that he was “not a good liar” and that he was “still married and [had] an 8 month old daughter.” JA

787. Recent troubles with his wife, he explained, caused him to “look[] into the personals,” through

which he met Rahaman, who “mistook” his interest as “stalking.” Id. After explaining why he

“react[s] so horribly to these situations,” Blake concluded the email by informing Bailey that he had

“deleted [his Matchmaker] profile and [would not] call [her] again.” Id. Bailey responded on

Sunday morning: “Obviously I don’t think it’s appropriate for us to have further contact, but I

wanted to thank you for your candor. You were correct in that I sensed something was not

right. . . . Best of luck to you and your family!” JA 790. Blake responded with a lengthy email on

Sunday afternoon, in which he expressed doubt about his ability to “handle rejection” and asked

Bailey to “leave a friendship option open.” JA 793. Bailey did not respond.



                                                -2-
        The following morning, Blake left five messages on Bailey’s answering machine. At 9:57,

he said: “I’m going to try this again. . . . I don’t know it’s on my mind, but . . . I suppose when I

start my mind goes blank . . . . [I]t’s not like me to, well, it’s pretty sad, too.” JA 1544. At 9:59,

he said: “I suppose I’m beginning to look like the biggest idiot on the planet now . . . . [I]f you do

ever want to go out . . . maybe you can look at me . . . in between divorces or something, that’s pretty

tacky. . . . I didn’t intend to um, if I did do anything, well[,] that’s pretty sad . . . .” Id. At 11:45,

he said: “Hey Nance, this is Ray, are you around? [T]alk to me, please.” Id. At 11:53, he said:

“Hey, it’s Ray again. I think you’re experiencing just a touch of my passionate side . . . maybe too

much.” Id. And at 11:54, “[s]ounding very perturbed,” he said: “I think you need to increase that

message to about ten minutes so I can talk[. I]f you’re not going to pick up that’s fine. . . . I don’t

know where Gregory [a town near where Bailey lived] is, [but] I’m gonna head up there to the

restaurant tonight at 7. . . . I wanna see ya’. If you’re not there, you know, that’s fine. I know you’re

a nice person, you don’t like to tell someone off or tell them goodbye . . . . [T]his is going to sound

terrible, but there’s nothing going on between my wife [and me] and that sounds . . . absolutely

ridiculous, but . . . please, I’ll be there at 7. . . . [M]eet me [and] give me a chance, that’s all I

ask. . . . [A]nd if you’re not there, this is the last time I’ll call.” Id.


        After hearing these messages, Bailey called Matthew Shelden, a friend of hers. According

to Shelden, Bailey was “frantic and obviously in a bad condition. . . . [S]he was shaking on the

phone by her trembling voice . . . and wanted [Shelden] to get . . . over there to stay with her because

she had received at least 8 phone messages . . . from Ray [and] Ray was on his way.” JA 1547.

Shelden told Bailey that he would be over by 6:00. At 5:18, Bailey called the police, informing them



                                                    -3-
that she had received phone threats and emails from Blake, that Blake was coming to Gregory later

that night and that she was afraid that Blake would get her address. At 5:47, Blake left another

message for Bailey: “Nance, this is Ray. . . . I don’t know how I’m gonna find this place. . . . [A]nd

even if I wanted to find Gregory there’s no way I could find Willard [Bailey’s home town]. . . . [B]ut

anyways, I’m going to try. . . . If I’m there in an hour, I’m gonna try. [S]o if you’re not there at 7

uh maybe I’ll get imaginative. Talk to you then.” JA 1545.


       Officer Richard Knieper of the Unadilla Township Police Department arrived at Bailey’s

rural house around 7:15. JA 816. By that time, Shelden was there, and Bailey “appeared to be

normal . . . for somebody making a complaint,” though “she was concerned for her safety.” JA 817.

Over the next 45 minutes, Bailey showed Blake’s emails to Knieper, played Blake’s phone messages

for him, told him that she had informed Blake that “she was not interested in seeing a married man,”

JA 824, and told him that she was afraid that Blake may show up at her residence.


       Just as Knieper was leaving Bailey’s residence to search for Blake, Blake pulled into the

driveway. Bailey “in fear went for her room,” JA 1547, while Knieper approached Blake’s car,

asked him to step out of the car and, with Blake’s consent, searched him, finding nothing. After

handcuffing Blake and placing him in the back of his squad car, Knieper asked Blake if he could

search his car. Blake consented to the search, though on the apparent understanding that Knieper

would search only for drugs and weapons. Knieper’s search yielded “a bunch of [Matchmaker]

profiles and e-mail type stuff” that were “hanging out of [a] black bag” on Blake’s front seat. JA

829. The profiles and emails contained a “substantial amount of information on people,” including

Bailey. Id.


                                                -4-
       Following the search, Knieper contacted William Vailliencourt, an assistant prosecutor for

Livingston County, to see if “Vailliencourt felt that [Knieper] had enough probable cause to obtain

[an arrest] warrant.” JA 832. After the phone call, Knieper arrested Blake for stalking, transported

him to the police station and impounded his car.


       At 11:45 that evening, Knieper advised Blake of his Miranda rights, which Blake waived,

and along with Lieutenant Michael Shegan began questioning him. At some point during the

interview, in response to “threat[s]” by the officers that he could go to prison for five years for

stalking, Blake told the officers that he had emails on his home computer that would support his

claim that he was not stalking Bailey. JA 726. He also told the officers that he had a business

computer but that nothing related to Bailey was on that computer. Blake then gave the officers

written “permission to remove” his home and business “computers for forensic inspection pertaining

to the investigation of Nancy Bailey.” JA 801. In return, says Blake, the officers agreed that they

would “bring the computer[s] back” to the station and, if Blake was telling the truth about the

“exculpatory” information on his computers, they would “let [him] go.” JA 725.


       At 2:27 the following morning, Knieper and Shegan, accompanied by Blake, seized the

computers and some CD-ROMs from Blake’s business. No one ever searched the computers,

however, and Blake was held at the county prison until his arraignment later that day on charges of

stalking and using a computer to commit a crime. On January 11, 2002, the county dropped the

stalking and computer charges against Blake in return for his plea of no contest to charges of

criminal trespassing and disorderly behavior. The county returned Blake’s computers to him on

January 16, 2002, but never returned the CD-ROMs.


                                               -5-
       On October 10, 2003, Blake brought this § 1983 action in federal court against Livingston

County, Unadilla Township, Knieper, Shegan, Vailliencourt and several others, including Unadilla

Township chief of police, James Lyttle. Blake alleged violations of more than half of the Bill of

Rights (the First, Second, Fourth, Fifth, Sixth and Eighth Amendments) as well as the Fourteenth

Amendment and several provisions of Michigan law. The district court dismissed Blake’s state-law

claims without prejudice—refusing to exercise supplemental jurisdiction over those claims “so as

to avoid jury confusion”—and dismissed his Second, Fifth, Sixth and Eighth Amendment claims for

failure to state a claim upon which relief could be granted and ordered him to file an amended

complaint. JA 64. After Blake filed his amended complaint, the court rejected the remaining claims

as a matter of law through a series of pre-trial rulings.


                                                  II.


                                                  A.


       Blake first contends that the district court erred in concluding that Knieper had probable

cause as a matter of law to arrest him for stalking. The existence of probable cause depends on

“whether, at the moment the arrest was made, . . . the facts and circumstances within [the officer’s]

knowledge and of which [the officer] had reasonably trustworthy information were sufficient to

warrant a prudent man in believing that the [defendant] had committed or was committing an

offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). Michigan law defines stalking as “a willful course

of conduct involving repeated or continuing harassment of another individual that would cause a

reasonable person [and that actually causes the victim] to feel terrorized, frightened, intimidated,



                                                 -6-
threatened, harassed, or molested.” Mich. Comp. Laws § 750.411h. It further defines (a) “course

of conduct” as “a pattern of conduct composed of a series of 2 or more separate noncontinuous acts

evidencing a continuity of purpose,” (b) “harassment” as “conduct directed toward a victim that

includes . . . repeated or continuing unconsented contact that would cause a reasonable individual

[and that actually causes the victim] to suffer emotional distress” and (c) “unconsented contact” as

“contact with another individual that is initiated or continued . . . in disregard of that individual’s

expressed desire that the contact be avoided or discontinued,” including “[e]ntering onto . . . property

owned . . . or occupied by that individual,” “[c]ontacting that individual by telephone” or

“[s]ending . . . electronic communications to that individual.” Id.


       When he detained Blake, Knieper had the following information: (1) Bailey’s email telling

Blake that she “[o]bviously” did not think it was appropriate for them “to have further contact,” JA

790; (2) Blake’s subsequent email to Bailey expressing doubt about his ability to “handle rejection,”

JA 793; (3) Blake’s email telling Bailey that Rahaman had accused him of stalking; (4) Blake’s five

subsequent phone messages on Monday morning, including the last one in which he sounded “very

perturbed” and said he was coming to Gregory to see Bailey, JA 1544; (5) Bailey’s call to the police

complaining of threatening phone messages and emails from Blake; (6) Blake’s subsequent phone

message on Monday evening telling Bailey that if she was not at the restaurant at 7:00, he was going

to “get imaginative,” JA 1545; (7) Bailey’s comments to Knieper that she told Blake that she was

not interested in seeing a married man and that she was afraid that Blake would show up at her

residence; (8) Shelden’s presence at Bailey’s residence to comfort and, if necessary, protect Bailey;

and, perhaps most importantly, (9) Blake’s arrival at Bailey’s residence on Monday night.



                                                 -7-
        Armed with this information, Knieper had probable cause to arrest Blake. Even before Blake

showed up at Bailey’s home, Knieper had ample reason to believe that Blake had frightened Bailey

through his repeated calls and emails—and indeed that any reasonable individual would have felt

the same way Bailey did, particularly if the individual lived in a rural area like Bailey did. An officer

in Knieper’s position also reasonably could have concluded that Blake’s actions constituted a

“course of conduct” under § 750.411h, see, e.g., People v. White, 536 N.W.2d 876, 881 (Mich. Ct.

App. 1995) (“Logically, defendant’s repeated calls and threats made on June 9 were sufficient to

establish a course of conduct to support the felony stalking charge . . . .”), and that Blake’s contact

with Bailey “disregard[ed] . . . [her] expressed desire that the contact be avoided or discontinued,”

Mich. Comp. Laws § 750.411h. The district court did not err in concluding that Knieper had “ample

probable cause to arrest [Blake] for stalking” and that Blake “produced no evidence to support a

reasonable jury verdict to the contrary.” D. Ct. Op. at 12.


        Noting that the stalking statute contains the term “willful,” Blake submits that he did not act

“with the requisite intent . . . to cause [Bailey] to experience significant mental suffering.” Br. at 32

(emphasis omitted). But in this context “‘willful’ refers to the harassing course of conduct and not

the ultimate result. To hold otherwise would allow [a] defendant to continue harassing and

contacting the victim without abatement simply because he genuinely feels that maintaining contact

will eventually restore his [relationship]. Such a result does not have support in the statute or in

common sense.” People v. Herzberg, No. 265546, 2007 WL 839375, at *1 (Mich. Ct. App. Mar.

20, 2007) (per curiam); see also People v. Hall, No. 180384, 1996 WL 33362552, at *1 (Mich. Ct.

App. June 18, 1996) (per curiam) (holding that “the term ‘willful’ modifies the ‘course of conduct’



                                                  -8-
element” and explaining that “the Legislature did not intend that this be a specific intent crime”).

Because Blake plainly meant to call (and email) Bailey and to show up at her house, his conduct

satisfied the willfulness requirement.


       It does not change matters, contrary to Blake’s contention, that the State ultimately dropped

the stalking charges against Blake in exchange for his no-contest plea. See Masten v. Jackson

County, No. 97-1987, 1998 WL 880303, at *3 (6th Cir. Nov. 27, 1998) (“It is . . . of no moment that

the prosecutor later made a judgment that there was not sufficient evidence of stalking as would

likely result in a conviction.”). Nor does it make a difference that Knieper did not intend to arrest

Blake when he left Bailey’s house (prior to Blake’s arrival). See Bond v. United States, 529 U.S.

334, 338 n.2 (2000) (“[T]he subjective intent of the law enforcement officer is irrelevant in

determining whether that officer’s actions violate the Fourth Amendment.”).


                                                B.


       Blake next challenges the district court’s summary-judgment conclusion that he consented

to the search of his car. We reject this contention.


       In Blake’s own words, he “gave [Knieper] permission” to search his car for drugs and

weapons and told Knieper to “[g]o ahead” and search because he “had nothing to hide.” JA 745,

1089; see also JA 828 (Knieper stating that Blake “gave [him] consent to search his vehicle”). As

the district court correctly explained, moreover, “Knieper’s alleged statement that he would get a

warrant to search [Blake’s] car did not render [Blake’s] consent invalid.” D. Ct. Op. at 13; see also

United States v. Salvo, 133 F.3d 943, 954 (6th Cir. 1998) (explaining that notifying a person that a


                                                -9-
warrant can be obtained does not render consent involuntary unless the threat to obtain the warrant

is baseless).


         Blake does no better in arguing that he limited the scope of his consent to a search for drugs

or weapons. Even assuming for the sake of argument that he has created a factual dispute over the

scope of his consent, that does not help him. The seizure of the Matchmaker profiles and other

documents was still lawful because, as the uncontested evidence showed, the documents were in

plain view and their incriminating nature was readily apparent. See JA 829 (Kneiper testifying that

the Matchmaker profiles were “hanging out” of Blake’s bag such that he “could see information

there”); United States v. Calloway, 116 F.3d 1129, 1133 (6th Cir. 1997); see also D. Ct. Op. at 6 &

n.4 (indicating that the documents were “[p]rotruding from [Blake’s] bag” and explaining that Blake

“point[ed] to no evidence to support [the] assertion” in his brief that the documents were not in plain

view).


                                                   C.


         Blake next argues that the district court erred in failing to address his claim that the seizure

of his business computer and CD-ROMs was unlawful. We agree. Although the district court

correctly rejected Blake’s claims that his home and business computers were unlawfully searched

(because the officers never searched the computers), it erred in “treat[ing]” Blake’s business-

computer-related claim “only as [an] unlawful search claim[],” as opposed to an unlawful search and

seizure claim. D. Ct. Op. at 12 n.8. In count four of his second amended complaint (entitled

“Unlawful Search and Seizure of Business Address”), Blake alleged that his “company’s file



                                                  - 10 -
server/computer was unlawfully seized without a warrant . . . causing great hardship to [him]” and

that “Knieper and Shegan unlawfully seized without a warrant, two CDROM’s [from his

business] . . . causing great hardship to [him].” JA 631 (emphases added). Blake made no such

claim related to his home computer.


        Rather than determine for ourselves whether Blake’s consent to the seizure of his business

computer was voluntary and encompassed the CD-ROMs, we remand this claim to the district court

for it to consider in the first instance. In doing so, we point out that the district court, in addressing

Blake’s claim that he was injured by this allegedly unlawful seizure, may wish to consider whether

one of Blake’s bond conditions—that he could not possess or use a computer—bears on the

cognizability of this claim. Blake may pursue this claim, it bears adding, against only Knieper and

Shegan, as Blake has presented no evidence that any of the other defendants seized the computer and

CD-ROMs.


                                                   D.


        Blake’s three remaining arguments are meritless. First, the district court correctly denied

Blake’s motion to file a third amended complaint to reinstate Unadilla Township as a defendant and

to allege that the Township’s “policy” of having its police officers consult with Livingston County

prosecutors prior to making a warrantless arrest is unconstitutional because it “avoid[s] the need to

have questionable cases regarding probable cause submitted to a neutral magistrate for

determination.” Br. at 13. The amendment would have been futile. Warrantless arrests are not per

se unconstitutional, and, even under Blake’s reading, the Township’s alleged policy satisfies the



                                                  - 11 -
constitutional requirement of a prompt judicial determination of probable cause following a

warrantless arrest. See County of Riverside v. McLaughlin, 500 U.S. 44, 47, 56 (1991). Prosecutors,

moreover, not only are permitted to give such advice to police officers, but they also are afforded

qualified immunity in a § 1983 action seeking damages for the advice given. See Burns v. Reed, 500

U.S. 478, 494–96 (1991).


       Second, the district court correctly rejected Blake’s claim that the defendants violated his

due-process rights by allegedly withholding exculpatory evidence from him before his guilty plea.

As the district court correctly indicated, Blake never “identif[ied] any [suppressed exculpatory]

evidence,” D. Ct. Op. at 16, and “[m]ere speculation that a government file may contain Brady

material is not sufficient” to prove a due-process violation, United States v. Driscoll, 970 F.2d 1472,

1482 (6th Cir. 1992) (internal quotation marks omitted), abrogated on other grounds by Hampton

v. United States, 191 F.3d 695 (6th Cir. 1999). “No Brady violation exists,” moreover, where, as

here, the “defendant knew or should have known the essential facts permitting him to take advantage

of any exculpatory information.” United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991) (internal

quotation marks omitted). Even assuming that his computers and voice messages and Bailey’s art

flier contained exculpatory information, Blake undoubtedly had reason to know of the information.

What is more, although Blake lodged this claim against several defendants, his complaint and his

brief suggest that the claim is against only Livingston County prosecutors. Cf. Lindsay v. Bogle, 92

F. App’x 165, 170 (6th Cir. Feb. 3, 2004) (“[T]he Brady obligation applies only to prosecutors.”).

And a prosecutor’s “non-disclosure of exculpatory information [is] certainly entitled to absolute

immunity.” Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986).



                                                - 12 -
        Third, the district court did not abuse its discretion in declining to exercise supplemental

jurisdiction over Blake’s state-law claims. The district court reasonably concluded that these

numerous and wide-ranging claims would confuse the jury.


                                                 III.


        For these reasons, we affirm in part, reverse in part and remand the case to the district court

to address Blake’s claim that Knieper and Shegan unlawfully seized his business computer and CD-

ROMs.




                                                - 13 -
