McNeal et al v. Bruno et al

Filing 108

MOTION by Plaintiffs Donetta McNeal, Jamari McNeal, Jerome McNeal for judgment As a Matter of Law (Neslund, Jeffrey)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEROME McNEAL, et al.,
Plaintiffs,
vs.
CHICAGO POLICE OFFICERS
ANTHONY P. BRUNO, STAR NO.
12212; et al.
Defendants.

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NO. 09 C 1500
JUDGE SHADUR
MAGISTRATE JUDGE COLE

PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF LAW
Now comes the Plaintiff Jerome McNeal, through his counsel Michael D. Robbins &
Associates and the Law Offices of Jeffrey J. Neslund, and moves this Honorable Court to enter a
judgment as a matter of law at the close of evidence pursuant to Federal Rule of Procedure 50(a)
as to Plaintiff's claims for (1.) illegal entry by Defendant Barroso and (2.) illegal search by
Defendant Barroso. Plaintiff is entitled to judgment as a matter of law on these claims because
the facts adduced at trial show that Defendant Barroso's warrantless entry into Plaintiff’s home
and subsequent search of his bedroom were done without probable cause or exigent
circumstances. Plaintiff is also entitled to a judgment as a matter of law on the illegal search
claim because the search of the bedroom following Plaintiff’s arrest in the kitchen was
unreasonable as it exceeded the scope of a proper search incident to his arrest.
FACTUAL SUMMARY
The pertinent facts introduced at trial viewed in the light most favorable to the nonmoving party demonstrate that the Defendants were on routine patrol on March 17, 2008, at 1:20
p.m. when they observed three (3) individuals behind 7007 S. Clyde Ave. in Chicago. At that
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time, Defendant Barroso exited his vehicle and approached the three young men, which included
Damien Stewart (hereinafter “Stewart”), in order to conduct a consensual field interviews to see
if they had any information about a robbery that had occurred two days earlier. Defendants had
no information whatsoever that Damien Stewart, who was a juvenile, was connected to that
robbery or any other crime. Although Officer Bruno testified that he observed Stewart smoking
marijuana, there is no evidence he communicated this observation to Officer Barroso. As the
Defendants approached, Officer Barroso smelled marijuana, but could not tell whether the smell
was specifically coming from Stewart. Defendant Barroso never saw Stewart smoking any
marijuana. As the Defendants approached, Stewart ran up the stairs to the third floor and entered
the Plaintiff’s residence. Officer Barroso followed Stewart into that residence and caught him in
the kitchen. Only once inside that kitchen did Officer Barroso see Stewart discard a marijuana
cigarette to the ground. Officer Barroso placed Stewart under arrest and recovered approximately
one gram of cannabis with a street value of $6.00 - a Class C misdemeanor, the least serious
classification of a misdemeanor crime in Illinois.
After Stewart was placed under arrest and was in handcuffs, Officer Bruno attempted to
enter the apartment when there was some type of altercation with Plaintiff McNeal in the rear
doorway of the apartment, the details of which are not relevant for purposes of this motion.
According to the Defendants, Plaintiff McNeal was placed into custody in his kitchen and a
search of an adjacent bedroom revealed a handgun between the mattress and box spring; the gun
was not in plain view. Plaintiff was charged with possession of that handgun.
STANDARD
Rule 50(a)(2) of the Federal Rules of Civil Procedure provides: "Motions for judgment as
a matter of law may be made at any time before submission of the case to the jury. Such a
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motion shall specify the judgment sought and the law and the facts on which the moving party is
entitled to the judgment." Fed. R. Civ. Proc. 50(a). Under Rule 50, a party is entitled to a
judgment as a matter of law when the evidence presented viewed in the light most favorable to
the nonmoving party, combined with all reasonable inferences, is legally sufficient to support the
verdict. Mutual Service Casualty Insurance Co. v. Elizabeth State Bank, 265 F.3d 601 (7th Cir.
2001). Courts have recognized that standard is essentially the same as the one used to decide
motions for summary judgment. Hall v. Gary Community College School Corp., 298 F.3d 672
(7th Cir. 2002).
ARGUMENT
I.

DEFENDANT OFFICERS VIOLATED THE CONSTITUTIONAL RIGHTS OF
JEROME MCNEAL WHEN THEY ENTERED AND SEARCHED HIS
RESIDENCE WITHOUT A WARRANT OR EXIGENT CIRCUMSTANCES.
Plaintiff is entitled to a judgment as a matter of law on his illegal entry claim because

Defendant Barroso’s warrantless entry into his home was done without probable cause and was
also without the benefit of any recognized emergency circumstances. Police may not search a
person’s home without a warrant unless there is an emergency. U.S. v. Collins, 510 F.3d 697,
699 ( 7th Cir. 2007), citing Welsh v. Wisconsin, 466 U.S. 740, 748-50, 104 S. Ct. 2091 (1984);
Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980).

Defendant Barroso’s sole

justification for entry into the Plaintiff's home is flight from a consensual interview and the
general smell of marijuana.

This simply does not establish the emergency circumstances

necessary to justify a warrantless entry into a private residence. The subsequent discovery of the
single gram of marijuana discarded by Stewart can hardly be considered a grave offense for
purposes of establishing exigent circumstances. To hold to the contrary would eviscerate the
warrant requirement, clear United States precedent guarding the sanctity of the home, if not the
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Fourth Amendment itself.

A.

THERE WERE NO EXIGENT CIRCUMSTANCES PRESENT THAT
WOULD JUSTIFY THE WARRANTLESS ENTRY INTO THE
PLAINTIFF’S HOME, PARTICULARLY WHERE THE OFFICERS
WERE CHASING AN INDIVIDUAL WHO HAD NOT COMMITTED A
CRIMINAL OFFENSE.

The right to be free from unwanted and unreasonable intrusion into a private residence is
chief among the protections of the Fourth Amendment. Payton v. New York, 445 U.S. 573
(1980). So closely guarded is the protection of the home that a warrantless entry into a private
home is presumptively unreasonable under the Fourth Amendment Payton v. New York, 445 U.S.
at 585-86. Considering the facts and circumstances of the encounter, the time of day, and the
minor cannabis offense involving Stewart, Defendant Barroso was not justified in disregarding
the Fourth Amendment’s warrant requirement and illegally entering Plaintiff’s residence.
In an effort to protect the warrant requirement, the Supreme Court has narrowly tailored
the situations under which police officers may make a warrantless entry into a home to those
emergency circumstances where immediate action is necessary and there is no time to secure a
warrant. Minnesota v. Olsen, 495 U.S. 91 (1990). The Supreme Court has established four (4)
instances where exigent circumstances have been recognized: (1) hot pursuit of a fleeing felon,
(2) preventing the imminent destruction of evidence, (3) preventing a suspect's escape, or (4)
danger to officers or others persons inside or outside of the residence. Minnesota v. Olsen, 495
U.S. at 100.
In making the determination of the officer’s knowledge when assessing entry due to
exigent circumstances, the focus of the inquiry is on the knowledge possessed by the specific
officer who made the warrantless entry. See United States v. Ellis, 499 F.3d 686 (7th Cir. 2007)
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(initial officer’s knowledge for purposes of establishing exigent circumstances cannot be
bolstered by additional information that was never communicated by other officers); see also
United States v. Richardson, 208 F.3d 626 (7th Cir. 2000) (government must establish that the
circumstances as they appeared at the moment of entry would lead a reasonable, experienced law
enforcement officer to believe that there were exigent circumstances to justify a warrantless
entry).
Defendant Barroso's decision to enter the residence cannot be justified with any knowledge
of any officers that was not communicated to him. United States v. Ellis, 499 F.3d at 689-90 (7th
Cir. 2007). Rather, his decision to make a warrantless entry into the residence must rest and fall
upon what knowledge he possessed at the time of the entry.

Ellis, 499 F. 3d at 690.

Consequently, Defendants are not able to bootstrap additional knowledge learned after the fact to
make a post hoc justification of Barroso’s initial entry. Ellis, 499 F. 3d at 689-90.
Nor can Barroso’s violation of the Plaintiff’s Fourth Amendment rights form the basis of
an exigency that would permit Officer Bruno to claim exigent circumstances and enter the
Plaintiff’s residence. It was established just last year that police officers may not claim lawful
entry under exigent circumstances where those circumstances were created by an earlier
violation of the Fourth Amendment. Kentucky v. King, 131 S. Ct. 1849 (2011). The United
States Supreme Court has recognized that the exigent circumstances standard will only apply
“when the police do not gain entry to premises by means of an actual or threatened violation of
the Fourth Amendment.” Id. In this case, Officer Barossa’s illegal entry cannot be used as the
Trojan Horse to sanction Officer Bruno’s later attempt at entry. This is particularly so where
Stewart was already in custody and any exigency had dissipated at the time Officer Bruno
forcibly entered the apartment.
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As such, viewing the evidence from the framework of Officer Barossa’s knowledge at the
time of entry, there were no emergency circumstances that would have justified the warrantless
entry into the Plaintiff’s residence. Officer Barroso did not have any information linking Stewart
to a crime or any indication that the Plaintiff’s apartment contained criminal activity. Officer
Barroso never saw Stewart with any marijuana and could not link the smell of marijuana
specifically to Stewart. These facts are insufficient to establish exigent circumstances for a
warrantless entry into a home.
Even after Officer Barroso saw Stewart throw the marijuana to the ground in the kitchen,
all Officer Barroso had was the possession of a single gram of cannabis with a street value of
$6.00. This offense is far from the type of “grave offenses” for which courts have found exigent
circumstances to support a warrantless entry. This was a Class C misdemeanor, the lowest of the
class of misdemeanor in the Illinois Criminal Code save for a petty offense. In fact, this offense
is now routinely dealt with as a ticketable violation of a municipal offense.
On point is the United States Supreme Court’s decision in Welsh v. Wisconsin, 466 U.S.
740 (1984). There, the Court held that police officers’ warrantless entry into a DUI suspect’s
home violated the Fourth Amendment. Id at 753. In so holding, the Court examined the nature of
the underlying offense, a traffic offense, and determined that exigent circumstances should
“rarely be sanctioned” when a minor offense is at issue. Welsh v. Wisconsin, 466 U.S. at 753. As
such, Stewart's single $6.00 gram of marijuana cannot support Defendant Barroso's warrantless
entry into a private residence. See also Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009)
(exigent circumstances rarely present when misdemeanor offenses are charged); Patzner v.
Burkett, 779 F.2d 1363 (8th Cir. 1985).
Nor can any of the other handful of narrowly tailored exigent circumstances support
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Officer Barossa’s warrantless entry into the home.

First, a concern for the destruction of

evidence was not present in this case. Unlike cases where court’s have found this to be a proper
exigent circumstance (i.e. United States v. Santana), Officer Barroso possessed absolutely no
specific information regarding any possible evidence that was about to be destroyed by Stewart’s
entry into the home. See, Richards v. Wisconsin, 520 U.S. 385 (1997); Jacobs v. Chicago, 215
F.3d 758 (7th Cir. 2000) (in order for exigent circumstances to exist, specific facts indicating
evidence is likely to be destroyed must be present). Barroso never had any knowledge that
Stewart had any particular evidence that might be destroyed and, as such, this exigency cannot
support Barroso’s actions. A contrary finding would incorrectly equate any flight with the
possible destruction of unknown evidence – an exception that would swallow the rule and render
the warrant requirement and the entire exigent circumstances rubric meaningless.
Similarly, there was no concern with escape in this case as an individual must be
suspected of specific criminal activity before one can be concerned about escape from said
activity. As with the prior exception, any finding equating flight with a need to prevent escape
would render the warrant requirement meaningless and would create a bright line rule that flight
alone was sufficient to support a warrantless entry into a private residence. Moreover, any
notion of escape in this case is refuted by the fact that Stewart was immediately placed into
custody and Officer Janik had gone around to the front of the residence to prevent any egress
from that location.
Finally, both the time of day, lack of any indication that Stewart was dangerous and the
consensual nature of the initial encounter both weigh in favor of the lack of exigent
circumstances. The police did not have any knowledge that there was any danger to anyone in
the apartment or that any serious or grave criminal activity was afoot following Stewart’s
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preemptive termination of the initial encounter. See Minnesota v. Olson, 495 U.S. 91 (1990)
(finding that the police violated rights of arrestee wanted in connection with a robbery-murder by
surrounding home in which he was hiding and forcibly entering the home and arresting him;
even though arrestee was wanted for grave offense, Court found there were insufficient exigent
circumstances as among other factors the suspect was not known to be violent, there was no
indication he was a danger to others in the house, the house was surrounded and it was a Sunday
afternoon).

There is simply no evidence establishing an emergency that would justify a

warrantless entry into the Plaintiff's residence. See, e.g., Hopkins v. Bonvicino, 573 F.3d 752 (9th
Cir. 2009); United States v. Patino, 830 F.2d 141 (7th Cir. 1987); United States v. Diaz, 814 F.2d
454 (7th Cir. 1987).
B.

THE WARRANTLESS ENTRY INTO PLAINTIFF’S HOME WAS DONE
WITHOUT PROBABLE CAUSE AS OFFICER BARROSO HAD NO
KNOWLEDGE THAT DAMIEN STEWART HAD COMMITTED ANY
CRIMINAL OFFENSE PRIOR TO ENTERING THE RESIDENCE.

Courts have routinely differentiated warrantless arrests in public places, which may be
made solely on the basis of probable cause, from arrests in private residences where an officer
must not enter to effectuate an arrest absent probable cause and either consent or exigent
circumstances. Griffin v. Wisconsin, 483 U.S. 868 (1987); Silverman v. United States, 365 U.S.
505, 511 (1961). Probable cause exists at the time of arrest “when reasonably trustworthy
information, facts and circumstances would lead a prudent person to believe that a suspect had
committed or was committing a crime." Nieman v. Keane, 232 F.3d 577, 580 (2000).
Here, the Defendants had no probable cause to believe that Damien Stewart had
committed any criminal offense when they approached him for a consensual field interview
regarding an unrelated robbery. Stewart did what every citizen had a right to do – terminate the
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possible interview and leave the presence of the police. Officer Barroso never saw Stewart
engaging in any criminal conduct and could not link the smell of marijuana to Stewart. In fact,
Officer Barroso candidly admitted that the first instance of criminal conduct he saw Stewart
commit was throwing the marijuana onto the kitchen floor after both of them had entered the
Plaintiff’s residence. See Strong v. Jackson, 10 CV 1497 July 30, 2012, at pp. 8-9 (Norgle J.,
presiding) (refusing to grant summary judgment in favor of Defendant officer on false arrest
claim where Officer could only establish that he approached plaintiff for a field interview
regarding a disturbance at which point plaintiff fled; based on these facts the officer “could not
have formed a reasonable belief that the arrested person had committed a crime. Mahoney v.
Kesery, 976 F.2d 1054 (7th Cir. 1992). These limited facts could not provide Defendant Barroso
the type of reasonably trustworthy information to establish that Damien Stewart had committed a
criminal offense. See Brandon v. Maywood, 157 F. Supp. 2d 917 (N.D. Ill. 2001) citing Brown
v. Texas, 443 U.S. 47 (1979).
Stewart’s flight, even when coupled with a general smell of marijuana, is completely
insufficient to justify the warrantless entry into the Plaintiff’s home. Hot pursuit of a fleeing
felon has supported a warrantless arrest inside of a residence in certain instances, but only when
that probable cause is established prior to the warrantless entry into the home. See United States
v. Santana, 427 U.S. 38 (1976). The Supreme Court has never held that probable cause is
irrelevant so long as there is flight into a private residence; in fact, flight alone will not establish
probable cause. Illinois v. Wardlow, 528 U.S. 119 (2000); see also Strong v. Jackson, 10 CV
1497 July 30, 2012, at 14 (Norgle J., presiding) (“With respect to Plaintiff] running and hiding,
the law has been clear since 2000 that unprovoked flight from the police is sufficient to establish
reasonable suspicion, but not probable cause. Wardlow, 528 U.S. at 124.) This lack of probable
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cause ends the inquiry and requires judgment to be entered in favor of Plaintiff. The presence of
exigent circumstances is irrelevant if the underlying probable cause is absent. Payton v. New
York, 445 U.S. at 583-90 (both probable cause and exigent circumstances are needed to support
warrantless arrest made inside private residence).
To hold differently, would be to negate the consensual nature of a field interview and
allow the police to enter any home provided that the citizen therein acted in a manner indicating
a desire to terminate any encounter. Whether the action was climbing stairs and resisting to be
interviewed, blocking a doorway, or closing a door in an officer’s face, the citizen had a right to
refuse contact with the police in an instance where there is no probable cause for arrest.
II.

DEFENDANT
OFFICERS
VIOLATED
PLAINTIFF
MCNEAL’S
CONSTITUTIONAL RIGHTS WHEN THEY CONDUCTED A SEARCH OF HIS
HOME THAT EXCEEDED A PROPER SEARCH INCIDENT TO ARREST.
Additionally, once Defendants were within Plaintiff McNeal’s residence, their search of

that residence was unreasonable as it exceeded the scope of a proper search incident to an arrest.
The seminal case detailing the proper scope of a search incident to arrest is Chimel v. California,
395 U.S. 752 (1969), where the United States Supreme Court established the “immediate
control” or wingspan test. In Chimel, the United States Supreme Court noted an officer could
search an arrestee’s person following an arrest as well as an area within the arrestee’s immediate
control, which it referred to as “the area within his reach.“ The Supreme Court cautioned that
the search incident to an arrest could not be used as a justification to search an entire residence or
rooms in a residence other than the one in which the arrest occurred. The Supreme Court
specifically noted that the rationale for the search of the area within the arrestee’s control was
absent when it was stretched to cover a search of a different room in the residence. “There is no
comparable justification, however, for routinely searching any room other than where the arrest
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occurs – or, for that matter, for searching through all the desk drawers or other closed or
concealed areas in the room itself. Such searches, in the absence of well-recognized exceptions,
may be made only under the authority of a search warrant. The “adherence to judicial processes”
mandated by the Fourth Amendment requires no less.”
Here, the Defendants had already placed McNeal under arrest and had handcuffed him in
the kitchen of his residence following their warrantless entry into his home. There was no
indication that McNeal had committed any criminal offenses or had any accomplices that would
justify a search of the remainder of the residence. Without obtaining or even requesting any
consent, the Defendants took it upon themselves to search an entirely different room – well
outside the cuffed Plaintiff’s reach. Not only did their search involve an entirely separate room,
but it was much more than a cursory inspection – going at least as far as going between the
mattress and box spring on the bed in that room.
CONCLUSION
In sum, the Plaintiffs are entitled to judgment as a matter of law pursuant to Rule 50.
Viewing the evidence in the light most favorable to the Defendants, Plaintiff has established that
his constitutional rights against unreasonable search and seizures were violated by Defendants
warrantless entry into his private residence and their subsequent search of the bedroom.
Defendants turned a consensual field interview with a teenager whom they suspected of no
criminal conduct into a headlong chase culminating in a warrantless entry into a private
residence. Defendant Barroso's subsequent search of the bedroom only exacerbated the previous
constitutional violation of the warrantless entry.

Defendants’ actions violate the Fourth

Amendment as a matter of law and require that judgment be entered in favor of the Plaintiff on
the claim for illegal entry by Defendant Barroso and illegal search.
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Respectfully submitted,
/s/ Jeffrey J. Neslund
One of Plaintiffs’ Attorneys

JEFFREY J. NESLUND
Law Offices of Jeffrey J. Neslund
150 N. Wacker Drive
Suite 2460
Chicago, Illinois 60606
[phone]
MICHAEL D. ROBBINS
MICHAEL D. ROBBINS & ASSOCIATES
150 N. Wacker Drive
Suite 2460
Chicago, Illinois 60606
[phone]

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