Caldwell et al v. City of Chicago et al

Filing 50

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 4/15/2009.Mailed notice(sct, )

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF ILLINOIS E A ST E R N DIVISION G R A C E CALDWELL and L A T O N Y A CALDWELL, P l a i n t i ffs , v s. C IT Y OF CHICAGO, Chicago Police O fficers Gallegos, Star No. 15130, M arco Bruno Star No. 18850, W illiam Lipke, Star No. 8382. Jimmy Woods, Star No. 8990, B rian Leahy, Star No. 13624, John Lucid, Star No. 2361, David Greenwood, Star No. 15128, Denton, Star No. 19152, E d w a rd s, Star No. 19970, M. Little, S ta r No. 885, and Lieutenant Nathan H amilton, Star No. 656, D e fe n d a n t s . ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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M E M O R A N D U M OPINION C h a rle s P. Kocoras, District Judge: T his matter comes before the court on the motion of Plaintiffs Grace and LaTonya C aldw ell for relief from the protective order entered in this case on February 11, 2009. For the reasons set forth below, the motion is granted in part and denied in part. BACKGROUND In November 2007, Grace and LaTonya Caldwell (collectively referred to as "the C aldw ells") lived in an apartment on South St. Louis Street in Chicago. Defendants

A lejandro Gallegos, Marco Bruno, William Lipke, James Woods, Brian Leahy, John L u c id , David Greenwood, Matthew Little, Derrick Denton, Darryl Edwards, and Nathan H amilton are Chicago police officers (collectively referred to as "the officers") who executed a search warrant at the Caldwells' apartment on the 23rd of that month. The se a rc h warrant sought seizure of illegal narcotics, drug paraphernalia, documents show ing residency, money, records of drug transactions, and Shiloh Caldwell, who is G race's grandson and LaTonya's cousin. At one point, Shiloh was a resident of the building where Grace and LaTonya live, which Grace owns. A c c ord in g to the complaint, none of the officers knocked or announced that they w ere police officers before they forcibly entered the apartment. The Caldwells contend that the officers caused excessive and unnecessary damage while conducting their se arc h, removed property without legal cause for doing so, and pointed guns at them during the course of the search. The search warrant at issue was obtained by Gallegos. T he search revealed guns in a storage locker in the building but outside the women's a pa rtm en t; no other items mentioned in the search warrant were found. Shiloh was tried on charges of possession of the guns but was acquitted. O n February 1, 2008, the Caldwells filed suit against the officers and the City of C hica go under 42 U.S.C. §§ 1983 and 1985. Shiloh is not a party to this suit. In pertinent part, the complaint contends that Gallegos violated the women's Fourth

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A mendment rights by relying upon a confidential informant who had not previously provided reliable information, not independently verifying the information the informant supplied, and by being untruthful with the prosecutor who requested and the judge who authorized the warrant. After discovery began, the City and the officers moved for entry of a protective order designed to prevent disclosure of the identity of the confidential informant mentioned within the search warrant materials. Under the terms of the order, no q ue stio ns could be asked of the officers in their depositions that could point to or reveal th e identity of the confidential informant. The order also specified that the search w arrant would be produced only with portions redacted and subject to an "Attorneys' E yes Only" designation. The order was entered on February 11, 2009. Subsequently, the Caldwells obtained an unredacted copy of the search warrant and the complaint offered in support of it from Shiloh's attorney in the criminal case for the gun charges. They now move for relief from the protective order under Fed. R. Civ. P. 60(b), to allow inquiry regarding the race and sex of the informant, all information the informant provided that is contended to have supported a finding of probable cause for the search, and production of an unredacted copy of the search warrant and the complaint for the search warrant without an "Attorneys' Eyes Only" restriction.

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L E G A L STANDARD Fed. R. Civ. P. 60(b) provides an avenue for a party to seek relief from a p re vio usly entered order or judgment. The rule specifies the circumstances under which re lie f is possible; they represent exceptional situations that would justify an extraordinary type of relief. Provident Sav. Bank v. Popovich, 71 F.3d 696, 698 (7th Cir. 1995). Rule 60(b)(2) states that a party may be able to obtain relief from an order by providing newly discovered evidence that is material to the judge's decision and would probably have led to a different result if the information had been previously presented. In re Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 78 F.3d 285, 293-94 (7th Cir. 1996). The evidence must not have been discoverable through due diligence of the presenting party before the order was entered. Id. at 294. If any one of these

prerequisites is not satisfied, relief under Rule 60(b) is not available. Id. at 294. With these principles in mind, we turn to the instant motion. D IS C U S S IO N T he officers and the City no longer oppose the request in the instant motion for an unredacted copy of the search warrant materials not subject to a disclosure restriction, in light of the fact that the Caldwells already have one in their possession. Accordingly, the portion of the protective order pertaining to the unredacted materials is vacated.

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W ith respect to the remainder of the protective order, however, the officers and th e City maintain that the Caldwells should not be granted relief under Rule 60(b). They a rg ue that the Caldwells have not satisfied their burden of demonstrating the presence of all predicate considerations cited above. Because this issue arises in the context of a 60(b) motion for relief based on new evidence, we must examine whether the new evidence would have led to a denial of the m otio n for a protective order in the first instance. The evidence presented now that was not previously available is as follows. The Caldwells are now in possession of the u nre da cte d search warrant materials. Shiloh obtained the materials during the pendency o f his criminal case, which has been resolved for some time. There is no allegation that th e confidential informant's safety has been compromised. In the search warrant, G allegos asserted that in the three months prior the informant had provided information regarding drug sales on five occasions. That information led to four arrests with concomitant recovery of controlled substances. Though the Caldwells' complaint covers actions taken before, during, and after the search, information regarding the confidential informant and Gallegos' actions in o bta in in g the search warrant is pertinent to the question of whether the warrant was o bta in ed in conformity with the Fourth Amendment, not whether the search was executed in a lawful manner or what took place after the search was completed. The

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C aldw ells are in possession of the search warrant documents and therefore are aware of the details presented to the state court judge in obtaining the warrant. What the C aldw ells now seek is the ability to plumb beyond the assertions made on the face of those documents to disprove the idea that they in fact supported a finding of probable c a u se . In Franks v. Delaware, the Supreme Court enumerated the procedure that must b e followed in cases where a party seeks to go behind the information stated on the face of an search warrant affidavit to prove a defense or claim. Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684-85 (1978). An affidavit that relies on information prov id e d by an informant must provide some description of the reasons why the informant believed that relevant evidence might be found at the place identified in the search warrant. Id. at 165, 98 S. Ct. at 2681. The affidavit must also recite some of the re qu estin g officer's rationale for concluding that the information provided is reliable. Id. The affidavit supporting a search warrant is presumptively valid. Id. at 171, 98 S. C t. at 2684. A party seeking to overcome this presumption must make a substantial preliminary showing that the requesting officer deliberately lied or recklessly d isre ga rd ed the truth with allegations to that effect accompanied by an offer of proof that identifies the portion of the affidavit that is alleged to be false as well as a statement of reasons supporting the challenge. Id. at 171-72, 98 S. Ct. at 2684-85. The statement of

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reasons must in turn be supported by affidavits or other evidence that would counter the identified sections of the warrant affidavit, or the absence of the same must be satisfactorily explained. Id. These requirements apply in civil cases as well as in a criminal context. Perlman v. City of Chicago, 801 F.2d 262, 264-65 (7th Cir. 1986). D espite being in possession of the search warrant materials, the Caldwells have not identified any of the statements they contain as being knowingly false or in reckless disregard of the truth nor provided any counter evidence that would be sufficient to constitute the substantial showing contemplated by Franks or any explanation for the a b se nc e of such evidence. In fact, their reply brief states that they do not take the p ositio n that the officers should have known that the informant's information was u nre lia ble before the search. Pls.' Reply at 8. It goes on to cite Beauchamp v. City of N oblesville, 320 F.3d 733, 742-43 (7th Cir. 2003), which states that in a challenge to a finding of probable cause a court looks to what the officer knew at the time the warrant w as sought, rather than through the lens of hindsight. Pls' Reply at 8. In sum, nothing in the Caldwells' newly presented evidence overcomes the presumptive validity of the search warrant affidavit or would have prevented the protective order from being entered with regard to information that could point to or reve al the identity of the confidential informant mentioned in it. Within that category o f information is the substance of the communications had with police as well as

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id en tify in g characteristics such as age, sex, and race. Accordingly, the motion for relief as to the portion of the protective order addressing those issues is denied. C O N C L U S IO N B ased on the foregoing analysis and as described herein, the motion for relief [42] from the protective order entered on February 11, 2009 [34], is granted in part and denied in part.

Charles P. Kocoras U nited States District Judge D a te d : April 15, 2009

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