Santiago v. Ronan et al
Filing
41
MEMORANDUM Opinion and Order; Signed by the Honorable Harry D. Leinenweber on 7/12/2012:Case TerminatedMailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAVIER SANTIAGO,
Plaintiff,
v.
SERGEANT RONAN, P. O. MICHAEL
TEWS, P.O. G. MOUSSA, KEN
SAHNAS, P.O. NOEL LIBOY, P.O.
M.K. DROZD, P.O. A.A.
COLINDRES, P.O. T.A. SURMA,
D.M. DOWD and the CITY OF
CHICAGO,
Case No. 10 C 4691
Hon. Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Motion for Summary Judgment.
For the reasons stated herein, the motion is granted.
I.
On
July
28,
2008,
a
BACKGROUND
man
(“the
Informant”)
walked
into
Chicago’s 13th District police station and told Sgt. Patricia Maher
(“Maher”) that he had been doing some type of unspecified work on
an apartment and that Plaintiff Javier Santiago (“Santiago”) had a
gun and had threatened to kill him.
Maher, who was not named as a
defendant in this case, testified she had never met the Informant
before that day and, at least at that time, knew nothing about him.
She did not remember if she got the Informant’s name, address or
phone number or ran a warrant check on him.
The Informant asked to
remain anonymous, and Maher “respected that.”
ECF 23-1, PageID No. 108.
Maher Dep. 21,
It appears from the record Maher
eventually learned the Informant’s name, but Defendants, citing the
Informant’s privilege, have not released it and the Informant’s
name is not part of the record.
Maher testified the Informant clearly knew Santiago, knew
Santiago’s nickname was “Bear,” accurately described Santiago’s car
as a Jetta make, accurately described part of the Jetta’s license
plate number, and led police to the general area where the Jetta
was parked.
Maher had never worked with the Informant before, but
found him credible in part because he had presented himself to a
police station instead of making an anonymous phone call.
The
Informant expressed his concern “in a manner where he appeared to
be genuinely concerned and fearful for his safety.”
ECF 23-1, PageID No. 109.
Id. 24,
Using a state prison web site, Maher
showed the Informant a photograph of Santiago; the Informant
confirmed the man in the photograph was the man who had threatened
him.
Maher asked a dispatcher to have a tactical unit police
officer on the street call her, and Defendant Sergeant Ronan
(“Ronan”) responded to this request.
The two sergeants spoke on
the phone (Ronan used his cell phone rather than police radio) and
Ronan verified the Jetta was where the Informant said it would be.
Ronan set up surveillance of the Jetta.
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The Informant remained at
the police station for approximately an hour and a half, talking on
the Informant’s own cell phone with someone who was in close
proximity
to Santiago.
That
person
told
Santiago was showering in a nearby apartment.
the
Informant
that
Maher never learned
the identity of the person with whom the Informant was speaking.
While Ronan watched the car, he was also in communication with
two other Chicago police officers, Defendants Michael Tews (“Tews”)
and G. Moussa (“Moussa”).
Those officers looked up Santiago’s
information in police databases and learned he did not have a
license to drive.
They also learned he was on parole for armed
robbery and that police had urged officers to be cautious of
Santiago due to his gang involvement and criminal history.
When Santiago left the nearby apartment, the person with whom
the Informant was talking was able to relay that information as
well as Santiago’s clothing description to the Informant.
The
Informant relayed it to Maher, who relayed it to Ronan.
Maher testified she was not sure of the exact information she
gave to Ronan regarding the location of the gun.
“I believe I
relayed that the last time the [Informant] saw Mr. Santiago with
the gun, it was in or around the Jetta, but I’m not – as far as the
specifics of what I said I can’t recall.”
PageID 115.
Maher Dep. 55, ECF 23-1,
Maher also testified that the Informant may have been
threatened by Santiago inside an apartment (as opposed to on the
street), and she did not recall if the Informant explained how the
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gun got from inside to the Jetta.
Id.
At another point, Maher
testified she told Ronan she didn’t know where the gun was.
Id.
at 46, ECF 23-1, PageID 113.
Out on the street, Ronan observed Santiago get into the Jetta
and then discard the wrapper of a cigarette pack onto the street.
Santiago
admits
he
littered.
information to Tews and Moussa.
Santiago was driving away.
Ronan
relayed
the
littering
He also advised the officers that
Tews and Moussa pulled Santiago over
and arrested him for littering and driving without a valid license.
Santiago was handcuffed and placed in a police car.
searched the car.
Tews then
While searching in the back seat area, he noted
the base of the console between the front driver’s seat and the
front passenger seat was loose and not bolted down.
Tews lifted
the console and found a chrome revolver underneath the console and
underneath the carpeting of the car.
Tews testified he searched the car as a search incident to
arrest; Officer Moussa testified Tews searched the car because it
was about to be impounded.
Gun charges against Santiago were eventually dismissed because
the state court judge ruled prosecutors had not satisfied the
knowledge component of the charge of “knowing possession” of a
handgun.
Plaintiff sued numerous officers under numerous theories, but
subsequently dismissed all Defendants but Ronan, Tews and Moussa.
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He alleges Constitutional violations of false arrest, unlawful
search of his person, unlawful search of his car and conspiracy
under 42 U.S.C. § 1983.
II.
LEGAL STANDARD
Summary judgment is proper only if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.
A fact presents a genuine issue if it
is one on which a reasonable fact finder could find for the
nonmoving party.
Evans v. City of Chicago, 434 F.3d 916, 924 (7th
Cir. 2006) (internal citations and punctuation omitted).
III.
A.
ANALYSIS
False Arrest and Unlawful Search of Person
Plaintiff concedes that Sgt. Ronan observed Plaintiff throw a
cellophane wrapper out of his car window, and that Sgt. Ronan
relayed this information to the arresting officers, Tews and
Moussa, before they pulled him over. Plaintiff additionally admits
he did throw the wrapper out of his car window before driving off.
Plaintiff admits that Officer Tews testified that before he pulled
Plaintiff over, he used his in-car computer to view Plaintiff’s
picture and learned that Plaintiff had no valid driver’s license,
that he was on parole for armed robbery and had a safety/caution
alert associated with him due to his gang and criminal history.
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Although Plaintiff hedges as to whether Tews actually did this (as
opposed to just testifying that he did), Local Rule 56.1 requires
that any denial point to evidence in the record establishing a
question of material fact, and Plaintiff fails to do this.
By not
citing any contradictory evidence, Plaintiff by default admits that
Officer Tews knew this information before pulling Plaintiff over.
These admissions require summary judgment for all Defendants
on the false arrest and unlawful search of person charges.
establish
that police
had probable
cause
to
stop
and
They
arrest
Plaintiff for either the littering charge or the charge of driving
without a license.
Ronan had witnessed the crime of littering and
relayed this to Tews and Moussa, and Tews and Moussa had witnessed
the crime of driving without a license.
Probable cause is an
absolute bar to a Section 1983 claim for false arrest.
Mustafa v.
City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006).
Plaintiff
makes
much
of
the
fact
that
the
Informant’s
information (about Plaintiff having a gun) was not independently
corroborated,
but
for
the purposes
of
irrelevant in this set of circumstances.
false
arrest,
this
is
The probable cause for
littering and driving without a license gave police had a basis,
independent of the Informant’s allegations, to arrest Plaintiff.
Whether the arrest for littering and driving without a license was
a pretext is irrelevant to whether it was Constitutional. Whren v.
United States, 517 U.S. 806, 812 (1996) (ruling an officer’s motive
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does not invalidate objectively justifiable behavior under the
Fourth Amendment).
Once the arrest was made, the search of
Plaintiff subsequent to that arrest was also Constitutional.
United States v. Robinson, 414 U.S. 218, 221, 236 (1973).
B. The Defendants are Entitled to Qualified
Immunity for Their Search of the Automobile
The
warrantless
search
of
an
arrestee’s
car
after
Constitutional arrest is not automatically permissible.
a
See,
generally, Arizona v. Gant, 556 U.S. 332 (2009). It is permissible
to search, incident to arrest, the area within an arrestee’s
immediate
control to
destroying evidence.
prevent
him
from accessing
Id. at 335.
a
weapon
or
Here, however, Defendants
concede that Plaintiff was secure in a squad car when the vehicle
was searched, so under Gant, neither of those warrant exceptions
apply.
A search of a car is also permissible if there is reason to
believe that evidence of the offense of the arrest might be found
in the vehicle.
Id.
But, assuming the arrest to be for the
offenses of littering and driving without a license, just as in
Gant,
no
further
searching the car.
evidence
of
the
crimes
could
be
gained
by
After all, the litter was already outside the
car, and it is not reasonable to assume Plaintiff would keep a
signed confession in his car that he had no license and should not
be
driving.
Therefore,
if
the
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search
of
the
car
was
Constitutional, it would have to be justified by some other legal
precept.
Defendants
suggest
the
search
was
an
inventory
search
performed as part of the car’s impounding. See generally, Colorado
v. Bertine, 479 U.S. 367 (1987).
Plaintiff argues Defendants
submitted insufficient evidence of what the city’s policy is and
how it is administered.
information
is,
in
Constitutionality
of
Despite Defendants’ protestations, such
fact,
an
part
inventory
of
the
analysis
search.
United
of
the
States
v.
Cartwright, 630 F.3d 610, 614-615 (policy must be sufficiently
standardized
to
be
evidence in
their
Constitutional).
statements
of
fact
Neither
party
of
written
any
submitted
policy,
although officers testified there is a policy.
Defendants finally argue that the Informant’s communication to
police about being threatened with a gun gave officers a reasonable
basis to search the car under the automobile exception, even though
Plaintiff arrived at the car after some significant period of time
had expired between the threat to the Informant and Santiago’s
arrival at the car.
Maher’s equivocal testimony raises a question
of fact as to whether police reasonably believed the gun was ever
in the car.
There is also a legal question as to whether it was
still reasonable, after this lapse of time (at least an hour and a
half, gauging from the Informant’s time in the station) between the
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initial report and Santiago’s sighting to believe the gun the
Informant talked about was still in the car.
Plaintiff also argues that Defendants did not sufficiently
test the Informant’s reliability, and so any beliefs based on the
Informant’s tales are not reasonable.
These are, on both sides, colorable arguments.
Thus, the
question of the Constitutionality of the search of the car is a
closer
question
than
Plaintiff’s person.
the
question
of
arrest
and
search
of
But the Court need not reach the question of
the Constitutionality of the search of the car because, assuming,
arguendo that none of the above avenues justified the search of the
car, the police are still entitled to qualified immunity in this
instance for their search of the car.
Two questions are pertinent to the defense of qualified
immunity:
whether the alleged facts show that the state actor
violated a Constitutional right, and whether that right was clearly
established at the time of the alleged violation.
Brown v. City of
Fort Wayne, 752 F.Supp.2d 925, 940 (N.D. Ind. 2010) (citing Pearson
v. Callahan, 555 U.S. 223 (2009)).
Here, the Court has assumed the first factor in favor of
Plaintiff. But Defendants argue quite persuasively that the law at
the time of the arrest, which occurred on July 27, 2008, allowed
police in these circumstances to search a vehicle incident to an
arrest under New York v. Belton, 453 U.S. 454 (1981).
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At the time
of the arrest, Belton was still good law, not yet overruled by
Gant, which the Supreme Court handed down in 2009.
The Court in
Belton announced a bright-line rule that “when a policeman has made
a lawful custodial arrest of the occupant of an automobile, he may,
as a contemporaneous incident of that arrest, search the passenger
compartment of that automobile.
It follows from this conclusion
that the police may also examine the contents of any containers
found within the passenger compartment.”
Id. at 460.
The “container” in the Belton case was a jacket in the back
seat.
Although the suspects in Belton were not handcuffed, they
were some distance away from the car and separated from each other.
As the Gant decision noted, some courts interpreted this distance
from any possible weapons and evidence in the car, and Belton’s
stated emphasis on the need for a bright-line rule, to mean that
car searches incident to arrest were proper “even when . . . the
handcuffed arrestee ha[d] already left the scene.”
Gant at 342.
Indeed, Justice Scalia remarked that cases allowing searches of
cars where the arrestee was handcuffed and in a squad car were
“legion” in number.
(2004).
Thornton v. United States, 541 U.S. 615, 628
The Seventh Circuit seemed to embrace this bright-line
distinction.
United States v. Douglas, 55 Fed. Appx. 769, 770 n.1
(2003) (noting that, independent of a reliable informant’s tip, a
car search incident to a pretextual speeding arrest provided a
Belton basis for a search that found a kilogram of cocaine under
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the back seat); see also Grover v. Boyd, No. 98-3216, 1999 U.S.
App. LEXIS 11282 at *7 (7th Cir. 1999) (recounting numerous Seventh
Circuit applications of Belton, including United States v. Willis,
where the car was searched shortly after suspects were secured.
United States v. Willis, 37 F.3d 313, 318 (7th 1984)).
Plaintiff argues, using Gant, that it should have been clear
to police their search was unconstitutional.
But Gant came after
this
that,
arrest.
The
Court
can
hardly
say
if
Belton’s
unconstitutionality was unclear to the Supreme Court and the
Seventh Circuit, it should have been clear to officers of the
Chicago Police Department.
The officers are entitled to qualified
immunity because at the time of the arrest, it is uncontested that
Belton was still good law.
C.
Plaintiff Offers No Evidence of a Conspiracy
To establish a prima facie case for conspiracy under § 1983,
a Plaintiff must show (1) an express or implied agreement among
Defendants to deprive Plaintiff of a Constitutional right and (2)
actual deprivations in the form of overt acts in furtherance of
that agreement.
See Scherer v. Balkema, 840 F.2d 437, 442 (7th
Cir. 1988).
Even if the Court assumes, arguendo, there was an actual
deprivation here in the form of the search of the car, Plaintiff
has
presented
no
evidence
that
Defendants
agreed
Plaintiff’s car before Tews actually searched it.
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to
search
There was an
implicit agreement to keep Plaintiff under surveillance and to
arrest him for the littering, but Plaintiff has presented no
testimony in his Local Rule 56.1 Statement about how the decision
to search the car was made, or whether it was simply Officer Tews’
individual decision to do so.
With no proof of an agreement, there
can be no conspiracy.
IV.
CONCLUSION
Because no questions of material fact exist as to whether the
officers had probable cause to arrest and search Plaintiff’s
person, the claims of false arrest and unlawful search of his
person fail.
Because no questions of material fact exist as to an
agreement surrounding the search of the car, the conspiracy claim
fails.
There is also no question of material fact as to whether
the search of the car, at the time it was made, was widely
perceived as permissible under Belton.
It was.
Therefore, the
officers were reasonable in their belief that they could search the
car and are entitled to qualified immunity.
The Court grants summary judgment in favor of all Defendants.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
DATE: 7/12/2012
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