Spencer v. City of Rolling Meadows et al

Filing 171

MEMORANDUM Opinion and Order: For the foregoing reasons, Defendants' motion for summary judgment 145 is granted, and Spencer's claims are dismissed. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 3/5/2014:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL A. SPENCER ,
Plaintiff,
No. 08 C 85

v.

Judge Thomas M. Durkin

CITY OF ROLLING MEADOWS, JOE
PISTORIUS, AND MARK HINDS,
Defendants.

MEMORANDUM OPINION AND ORDER
Michael Spencer alleges that Detectives Joe Pistorius and Mark Hinds (the
“Detectives”) of the Rolling Meadows Police Department violated the Fourth
Amendment when they searched Spencer’s car and arrested him. R. 109 (Counts II
and III). Spencer also alleges that the City of Rolling Meadows’s policy for
impounding cars violated the Fourth Amendment, id. (Count I), and seeks
indemnification from the City for any illegal actions by Detectives Pistorius or
Hinds. Id. (Count IV). Defendants have moved for summary judgment on all claims.
R. 145. For the following reasons, Defendants’ motion is granted.1
Background
The events of this case stem from a missing person investigation. On October
23, 2005, J.K. reported to the Rolling Meadows Police Department that her 17-yearDan Cook was a defendant at the time the motion was filed, but the Court
dismissed him from the case for reasons stated on the record on February 10, 2014.
R. 170. The Rolling Meadows Police Department was also originally a defendant in
this case, but it was dismissed without objection on April 3, 2012. R. 91.
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old daughter A.K. was missing. R. 155 (Plaintiff’s Response to Defendants’
Statement of Material Facts) ¶ 5. J.K. gave the police a phone number she found in
A.K.’s phone that A.K. had called frequently, which was identified with the name
“Michael.” Id. ¶ 11. Spencer admits that J.K. reached him by calling this number.
Id. Spencer also admits that the police reached him at this number, and he told the
police that he knew A.K. but did not know where she was. Id. ¶ 12.
Over the next several weeks after J.K. reported A.K. missing, A.K. called
home twice. Id. ¶¶ 7, 10. The police also received several reports that A.K. had been
seen around town. Id. ¶¶ 10, 19. In particular, Commander Joseph Waitzman (the
supervisor in charge of the Investigations Unit of the Rolling Meadows Police
Department), spoke with a friend of A.K., Hannah Leonard, who said she had seen
A.K. Id. ¶ 19.
On November 18, 2005, Detectives Pistorius and Doucet (another detective on
the case) went to Leonard’s house and encountered Leonard with Spencer. Id. ¶¶
26, 28. Leonard and Spencer were roommates. Id. ¶ 41. Leonard and Spencer told
the officers that they did not know where A.K. was and invited the officers to check
inside the house. Id. ¶ 28. Detective Pistorius observed photography equipment,
feather fans, and lingerie in the house. Id. ¶ 29. Detective Pistorius believed that
the equipment was being used to create pornography. Id. ¶ 30.
At some point in the course of the investigation, Detective Doucet googled
Spencer’s phone number and found that it was associated with the web address
www.sirenseroticentertainment.com. Id. ¶ 32. Spencer was listed as the contact

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person for the website. Id. The website included photos of girls dressed
provocatively, and Doucet identified one of the girls as A.K. Id.
The police also learned that A.K.’s acquaintance, Lisa Candir, might have
information about A.K.’s whereabouts, id. ¶ 21, and that Candir also appeared on
Spencer’s website. Id. ¶ 37. Commander Waitzman and Detective Doucet went to
Candir’s home on January 4, 2006, and spoke with her mother. Id. ¶¶ 36-37.
Candir’s mother told them that she had recently discovered a hotel key in Candir’s
wallet and found “sexy” clothes in Candir’s room, and that Candir stayed out until
the early morning hours. Id. ¶ 38.
Later that day, Commander Waitzman and Detective Doucet spoke with
Candir at the police station. Id. ¶ 40. Candir told the officers that Spencer recruited
her to be a model and “call girl” for his website. Id. ¶ 41. Spencer admits that
Candir told the police that his website is a “call girl service that is made to appear
as an escort or modeling service.” Id. ¶ 42. She also told the police that Spencer
vetted the potential clients and arranged a date, time, and location for the client to
meet with the “call girl” at a hotel. Id. ¶¶ 42-43. Defendants allege that Candir also
told the police that Spencer negotiated what sex acts the call girl would perform for
the client and the price, id. ¶ 44, and that Spencer supplied drugs to some of the call
girls. Id. ¶ 45. Spencer disputes that Candir stated that sex acts were ever
performed by her or others, and that she stated that he provided drugs to some of
the call girls. Id. ¶¶ 44-45. Spencer alleges that Commander Waitzman and
Detective Doucet coerced Candir’s statements because they threatened to arrest

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her, which would cause her to miss her birthday party. R. 155 (Plaintiff’s Statement
of Additional Facts) ¶¶ 4-13.
Based on the website and Candir’s statements, Detectives Pistorius and
Hinds went to Spencer’s house, but they did not receive a response when they
knocked on the door. R. 155 (Plaintiff’s Response to Defendants’ Statement of
Material Facts) ¶¶ 48-49. The Detectives waited outside the house, and eventually a
car registered to Spencer exited the garage. Id. ¶¶ 50-51. The Detectives followed
the car and turned on their car’s sirens. Id. Spencer drove his vehicle into the
parking lot of a public high school, stopped the car, got out, locked it, and put the
keys in his pocket. Id. ¶¶ 51-52. Detective Pistorius called Commander Waitzman,
and Waitzman authorized the Detectives to arrest Spencer for pandering, which
they did. Id. ¶ 54.
Detective Pistorius conducted a pat-down search of Spencer and found $8,000
in his pants pocket, and took the car keys out of Spencer’s pocket. Id. ¶¶ 56, 58. A
police car arrived to take Spencer to the police station. Id. ¶ 56.
The Detectives then searched Spencer’s car. Id. ¶ 58. Detective Hinds found
several cell phones and a laptop computer in the passenger compartment of the car.
Id. ¶ 59. Detective Pistorius found a metal box in the trunk and used a key from
Spencer’s key ring to open it. Id. The box contained several bundles of $100 bills
wrapped in rubber bands and several clear plastic baggies containing cocaine. Id.
Spencer’s vehicle was subsequently towed from the parking lot to the police station.
Id. ¶ 60.

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On January 6, 2006, A.K. returned to her mother’s house of her own volition.
Id. ¶ 64.
Spencer was charged with pandering and possession of a controlled substance
with intent to sell. Id. ¶¶ 70-71. Prior to his trial, Spencer filed a motion to quash
his arrest and suppress illegally obtained evidence. Id. ¶ 72. The state court denied
his motion, finding that the search of his car was a proper search incident to arrest
and inventory search. Id. Spencer was convicted of possession of a controlled
substance with intent to deliver and was sentenced to 15 years in prison. Id. ¶ 73.
On appeal, the appellate court overturned Spencer’s conviction, finding that
the impoundment and search of Spencer’s was unlawful. See People v. Spencer, 948
N.E.2d 196 (Ill. App. Ct. 1st Dist. 2011). The court discussed the City’s
impoundment policy (the “Policy”), which stated in relevant part:
VI.

TOWS SUBSEQUENT TO ARREST
A.
The vehicle may be left at the scene of the
arrest when the arrest occurs:
1.
In the private driveway or residential
parking lot of the arrestee, or
2.
In parking lots that are open to the
public (i.e. shopping center lots,
motel/hotel lots, and office complex
lots), and with the permission of a
shift supervision and the vehicle
owner.
3.
Exception: DUI arrests refer to IUC
625 ILCS 5/4—203(e)
B.
In cases involving a custodial arrest on a
public roadway where the vehicle cannot be
legally parked and where there is no other

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licensed driver to take immediate control of
the vehicle, the vehicle shall be towed.2
The court held that the Detectives properly followed the Policy, Spencer, 948 N.E.2d
at 203, but that the “mere fact that the defendant’s vehicle would have been left
unattended is insufficient to justify its impoundment.” Id. at 205. The court held
that the cocaine would not have been discovered but for the illegal search and that
there was insufficient evidence to convict Spencer without the cocaine. Id. at 206.
Spencer was released after spending more than five years in prison. R. 156 at 1.
Spencer filed this case on January 4, 2008. R. 1. He alleges that Defendants
did not have probable cause to arrest him or search his car, and that the search was
not a proper inventory search. See R. 109 (Counts II & III). Spencer also alleges that
these Fourth Amendment violations caused him “damages including, but not
limited to, his unlawful incarceration for over three years, and the loss of his cash,
vehicle and personal property.” R. 109 ¶¶ 35, 40.3

The parties provided a complete copy of the Policy to the Court at oral argument
on February 10, 2014.

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Though not relevant to the disposition of this motion, the Court notes that there is
authority indicating that Spencer is not entitled to compensatory damages for his
incarceration. See Townes v. City of New York, 176 F.3d 138, 146 (2d Cir. 1999) (“In
a § 1983 suit, constitutionally invalid police conduct that by itself causes little or no
harm is assessed on ordinary principles of tort causation and entails little or
nominal damages. The fruit of the poisonous tree doctrine is not available to
elongate the chain of causation [to include compensatory damages for
incarceration].”); see also Gauger v. Hendle, 349 F.3d 354, 362-63 (7th Cir. 2003)
(“[T]he interest in not being prosecuted groundlessly is not an interest that the
Fourth Amendment protects.” (citing Townes, 176 F.3d at 145-48)); Williams v.
Edwards, 2012 WL 983788, at *7 (N.D. Ill. Mar. 22, 2012) (citing cases).
3

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Legal Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all
of the evidence and draw all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more than “a mere
scintilla of evidence” and come forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Analysis
I.

The Arrest
In Count III of his complaint, Spencer alleges that the Detectives arrested

him in violation of the Fourth Amendment. R. 109 ¶¶ 41-43. Spencer does not
dispute that the Detectives knew of the following evidence prior to arresting him:
(1) Spencer’s name and phone number were associated with a website with an
address that included the words “erotic entertainment,” depicting provocatively
dressed woman; (2) Spencer’s house contained photography equipment and lingerie,
evoking pornographic activity; (3) Candir stated that she worked for Spencer as a

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“call girl” who could be hired through the website; and (4) Candir stated that her
work as a “call girl” involved meeting men at a hotel.
Spencer does not argue that these facts fail to establish probable cause for
pandering. Instead, Spencer contends that (1) the Detectives did not have probable
cause to arrest him because Detective Pistorius testified in state court that Candir’s
statements were the sole basis for Spencer’s arrest, and (2) Candir’s statements
were coerced. R. 156 at 12. The Court’s analysis of probable cause, however, is an
objective one that does not consider Detective Pistorius’s subjective belief at the
time of the arrest. See Williamson v. Curran, 714 F.3d 432, 446-47 (7th Cir. 2013)
(“The deputies’ admissions at trial thus do not require us to ignore the information
known to the deputies, which for the reasons we have discussed did [establish
probable cause]. . . . [T]heir understanding is immaterial for purposes of the
probable cause determination. The standard governing that determination is an
objective one which asks what a reasonable person would be warranted in believing
based on the facts known to the arresting officer, not what the arresting officer
actually thought or what his motivation was.”). Furthermore, Spencer admits that
neither of the individual defendant detectives was involved in questioning Candir;
rather, Detectives Pistorius and Hinds learned about Candir’s statements from
Commander Waitzman. Since the question here is what evidence the Detectives had
when they arrested Spencer, whether other police officers coerced the statements

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Candir made is irrelevant.4 Thus, the undisputed evidence establishes that the
Detectives had probable cause to arrest Spencer for pandering.
Even if the Detectives lacked probable cause to arrest Spencer, they are
entitled to qualified immunity, which attaches as long as the Detectives’ actions can
be described as “reasonable mistakes.” Gutierrez v. Kermon, 722 F.3d 1003, 1008
(7th Cir. 2013); see also Saucier v. Katz, 533 U.S. 194, 205 (2001) (“The concern of
the immunity inquiry is to acknowledge that reasonable mistakes can be made as to
the legal constraints on particular police conduct.”). A “plaintiff seeking to defeat a
defense of qualified immunity must establish two things: first, that she has alleged
a deprivation of a constitutional right; and second, that the right in question was
‘clearly established.’” Miller v. Harbaugh, 698 F.3d 956, 962 (7th Cir. 2012) (quoting
Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Even if Candir’s statements were
coerced and an objective review of all the evidence suggested that it was not
sufficient to establish probable cause, it was certainly reasonable for the Detectives
to believe that the evidence available to them was sufficient.
For these reasons, the Detectives are entitled to summary judgment on Count
III.
Moreover, Spencer’s allegations of coercion are insufficient to raise a genuine
question of whether Candir’s statements were coerced because threatening arrest
does not necessarily make a witness’s statements involuntary. See United States v.
Miller, 450 F.3d 270, 272 (7th Cir. 2006) (“A choice between cooperation and
freedom, on the one hand, and silence followed by custody and prosecution, on the
other, is a common one. This is the real choice many suspects face whether or not
the police lay it out in so many words; clear articulation of the options makes a
choice better informed and thus more rather than less voluntary.”). Since the police
suspected that Candir engaged in prostitution, it would not have been unreasonable
for the police to suggest that she could be arrested.
4

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II.

The Search
A.

Inventory Search Exception to Warrant Requirement

In Counts I and II, Spencer alleges that Defendants violated the Fourth
Amendment when they impounded and searched his car. R. 109 ¶¶ 33-40. The
parties’ arguments correctly assume that if Spencer’s car was properly impounded
then the search of the trunk in the parking lot did not violate the Fourth
Amendment because the police would have inevitably discovered the cocaine in the
trunk during an inventory search upon impoundment. See United States v.
Cartwright, 630 F.3d 610, 613-14 (7th Cir. 2010). Spencer contends that the
circumstances did not justify impounding his car. Specifically, Spencer argues that
the City’s impoundment Policy violated the Fourth Amendment because it only
“provided two situations in which a vehicle may be left at the scene of an arrest,”
and thus, it “demand[ed] a tow and accompanying custodial inventory search in
nearly every instance.” R. 156 at 8. In support of this characterization, Spencer cites
the testimony of the City’s representative that the police “always have the option of
towing the vehicle,” even if the car did not present a “safety hazard” where it was
parked. See R. 155-8 at 125:2-4. Spencer argues that the Policy gave police officers
too much discretion such that the policy was not sufficiently standardized and
exceeded the bounds of the Fourth Amendment. R. 156 at 8.
In order to seize and impound a car in accordance with the Fourth
Amendment, the police must follow a “standardized criteria or established routine.”
United States v. Duguay, 93 F.3d 346, 351 (7th Cir. 1996). Here, the Policy required

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the “permission of a shift supervisor” to leave a car belonging to an arrestee in a
“parking lot . . . open to the public.” It may be that the Policy provided too much
discretion to the police in deciding whether to impound a car; notably, the Illinois
Appellate Court held that it did.
Nevertheless, the Court’s application if the Fourth Amendment in this case is
not controlled by an analysis of the scope of the Policy. See Cartwright, 630 F.3d at
614 (“‘The question . . . upon review of a state-approved search or seizure is not
whether the search (or seizure) was authorized by state law.’” (quoting Sibron v.
New York, 392 U.S. 40, 61 (1968))). “‘The question is rather whether the search was
reasonable under the Fourth Amendment.’” Cartwright, 630 F.3d at 614 (quoting
Sibron, 392 U.S. at 61). Here, Defendants’ decision to impound Spencer’s car
complied with the Fourth Amendment because the car was parked in a school
parking lot and it was reasonable to remove it. In Cartwright, the Seventh Circuit
held that the police properly impounded an arrestee’s car that the arrestee had
parked between two marked parking spaces in a grocery store parking lot. See 630
F.3d at 615 n.1. In both Cartwright and this case, impoundment was reasonable
because the placement of the car “may have created a hazard to others using the
lot,” id.: in Cartwright because a car parked between two spaces could prevent the
regular use of the lot, and in Spencer’s case because the school parking lot was used
to capacity during the school day, and necessarily implicates the safety of children.
As the City’s representative testified
[the school] never had enough parking ever for the
amount of kids. . . . [and] you could not park in [the] lot
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after hours if there was no event going on. It was very
common [that the police] would check vehicles [left in the
lot] . . . and [they] would make every effort to contact the
owner and let them know this is private property, you
can’t park here whether it was posted or not because that
was the agreement [the police] had with the school. [The
school] would not allow long-term overnight parking.
R. 155-8 at 127:2-3, 11-21.
At oral argument on February 10, 2014, Spencer’s counsel argued that there
was no evidence that Spencer’s car remaining in the school parking lot created a
safety concern. But as the Seventh Circuit noted in Cartwright, an immediate safety
concern is not the only factor the police may reasonably consider. Rather, the police
can impound a car that “may . . . create[] a hazard to others using the lot.”
Cartwright, 630 F.3d at 615 n.1. It was reasonable for Defendants to believe that
leaving Spencer’s car in the school parking lot would create a “hazard to others
using the lot,” since it was reasonable to assume that the school parking lot was at
capacity during school hours, as the City’s representative testified. See R. 155-8 at
127:2-3, 11-21.5 Thus, Defendants are entitled to summary judgment on Court II
because Defendants’ decision to impound the car was reasonable such that the
search of the car complied with the Fourth Amendment.

Spencer’s counsel also argued at oral argument that there was no basis to
impound the car because (1) there is no evidence that anyone objected to the car
remaining in the parking lot, and (2) Spencer’s roommate could have retrieved the
car. The “Fourth Amendment [does] not require the police to explore such
alternatives.” See Cartwright, 630 F.3d at 615 & n.1.
5

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B.

Probable Cause Exception to Warrant Requirement

Alternatively, Defendants are entitled to summary judgment because the
search of Spencer’s car was based on probable cause that it contained evidence of
pandering. In Arizona v. Gant, the Supreme Court held, “Police may search a
vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching
distance of the passenger compartment at the time of the search.” 556 U.S. 332, 351
(2009). But the Court also reiterated that “[i]f there is probable cause to believe a
vehicle contains evidence of criminal activity, [the Fourth Amendment] authorizes a
search of any area of the vehicle in which the evidence might be found.” Id. at 347
(internal citation omitted). Here, even prior to stopping Spencer in his car,
Defendants had probable cause that Spencer had committed the crime of pandering.
Once the Detectives stopped Spencer, they found $8,000 in his pocket. It is true that
a large amount of cash by itself is not evidence of criminal activity, see United
States v. Weir, 703 F.3d 1102, 1103 (7th Cir. 2013), but the Detectives already had
probable cause to believe that Spencer was engaged in criminal activity. Thus, when
they found that Spencer was carrying a large amount of cash in his car, this created
a “fair probability,” Illinois v. Gates, 462 U.S. 213, 238 (1983), that Spencer kept
additional evidence of his criminal activity in his car. Cf. United States v. Cervantes,
19 F.3d 1151, 1153 (7th Cir. 1994) (“[A]lthough a wad of cash is not in itself a
suspicious object, a wad of cash in the hands of a person who the police have good
reason to believe just received it in exchange for a delivery of illegal drugs is
suspicious and indeed enough so to give the police probable cause to believe it

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evidence of criminal activity . . . .”) (emphasis in original). Spencer argues that
Defendants cannot “identify plausible evidence they expected to find in [Spencer’s]
trunk which would prove pandering.” R. 156 at 13. But it is not difficult to conceive
of examples of evidence that could be found in the car—e.g., more cash; client
information records; “call girl” information records; hotel receipts; or the drugs
Candir told the police Spencer sometimes provided to the call girls. The totality of
the evidence gave the Detectives probable cause to search the trunk of Spencer’s
car.
Lastly, because the Court holds that the Detectives acted reasonably in light
of “clearly established” constitutional rights, the Court also holds that the
Detectives are entitled to qualified immunity for their actions related to the search.
See Gutierrez, 722 F.3d at 1008; see also Saucier, 533 U.S. at 205.
For these reasons, Defendants are entitled to summary judgment on Counts I
and II.6

The City is also entitled to summary judgment on Count IV because it seeks to
have the City pay for any illegal actions by the Detectives, R. 109 ¶¶ 44-46, but the
Court has found that the Detectives did not cause any damages to Spencer.
6

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Conclusion
For the foregoing reasons, Defendants’ motion, R. 145, is granted, and
Spencer’s claims are dismissed.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: March 5, 2014

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