Montgomery et al v. Village of Posen, The et al
Filing
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MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 10/23/2015: Mailed notice (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CLARENCE MONTGOMERY,
Plaintiff,
v.
VILLAGE OF POSEN; DONALD
SCHUPEK; DOUGLAS
HOGLUND; FRANK GIORDANO;
and VICKIE PAGGI,
Defendants.
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No. 14 C 3864
Magistrate Judge
Maria Valdez
MEMORANDUM OPINION AND ORDER
Plaintiff Clarence Montgomery brought this complaint under 42 U.S.C. §
1983 to redress Defendants’ alleged violation of his Fourth Amendment rights
related to a warrantless search of Montgomery’s leased property. The matter is now
before the Court on Defendants’ Motion for Summary Judgment [Doc. No. 67]. For
the reasons that follow, Defendants’ motion is denied.
DISCUSSION
I.
LOCAL RULE 56.1 STATEMENT OF MATERIAL FACTS
As an initial matter, the Court notes that Defendants failed to submit a
statement of material facts in violation of Local Rule 56.1, which provides that:
With each motion for summary judgment filed pursuant to Fed. R. Civ.
P. 56 the moving party shall serve and file . . . a statement of material
facts as to which the moving party contends there is no genuine issue
and that entitle the moving party to a judgment as a matter of law. . .
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The statement . . . shall consist of short numbered paragraphs,
including within each paragraph specific references to the affidavits,
parts of the record, and other supporting materials relied upon to
support the facts set forth in that paragraph. Failure to submit such a
statement constitutes grounds for denial of the motion.
Local Rule 56.1(a)(3) (emphasis added); see FirstMerit Bank, N.A. v. 2200 North
Ashland, LLC, No. 12 C 572, 2014 WL 6065817, at *4 (N.D. Ill. Nov. 13, 2014)
(denying summary judgment for movant’s failure to comply with Local Rule 56.1,
explaining that “[i]t simply is not the court’s job to sift through the record to
determine whether there is sufficient undisputed evidence to support a party’s
claim or defense as a matter of law”); Daoust v. Abbott Labs., No. 05 C 6018, 2006
WL 2711844, at *4 (N.D. Ill. Sept. 19, 2006) (“The court should be spared from
engaging in this type of guesswork. The aim of a 56.1(a)(3) statement is to organize
the arguments, give the [nonmovant] an opportunity to respond, and economize
court resources by lessening the need to ‘scour the record.’”); see also Ammons v.
Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) (“We have also
repeatedly held that a district court is entitled to expect strict compliance with Rule
56.1.”). Because Plaintiffs’ motion does not demonstrate that there are no material
factual disputes, it amounts to no more than a recitation of a legal standard, with
citations case law, and “[a] legal standard, even if correct, is useless to us unless
applied to the facts of the case, particularly if it is a broad legal standard.” Malec v.
Sanford, 191 F.R.D. 581, 586 (N.D. Ill. 2000). The motion therefore must be denied.
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II.
MATERIAL FACTS
Even if Defendants had complied with Local Rule 56.1, the motion would
likely be denied. In order to explore the merits of the case, the Court has
endeavored to assemble the following undisputed material facts from the second
amended complaint, the pretrial order submitted before the District Court then
presiding, and the parties’ briefs.
Defendant Schupek is Posen’s Village President; Hoglund is Posen’s Chief of
Police; Paggi is the Assistant Chief of Police; and Giordano is a police officer and
building inspector for the village. Plaintiff Montgomery rented a property located at
13939 Harrison St., Posen, Illinois, consisting of a 4000 square foot building on a
6000 square foot lot. He planned to start a business at that location, but he also
used it to store equipment, tools, service trucks, trailers, and miscellaneous parts
for his construction business, which operates out of a different location in Chicago.
At around 4:00 p.m. on May 14, 2014, Plaintiff received a call from the Posen
police department. The caller was Giordano, who told him that village inspectors,
accompanied by village police, wanted to inspect the Harrison premises that
evening. Plaintiff told the inspector that he would allow a building inspection the
following morning on May 15 at 10:00 a.m. and would meet them at the facility. But
at 9:30 a.m. that day, he called the police department and told Giordano he
withdrawing his consent to the inspection.
Schupek gave a final authorization to the inspectors and officers to enter the
Harrison Street property. They broke a security chain and locks on its entrance
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gates and door and searched the property. Montgomery was barred from entering
the building during the search but was nearby outside the rear gate. After the
search was completed, Plaintiff was issued several Village Code violation tickets.
Montgomery’s landlord, Bruce Barr, had requested and consented to the
search. He asked the police and inspectors to accompany him when entering the
premises. (Defs.’ Mot. Ex. B at 1.) Montgomery’s Rental Agreement includes the
following language:
The LANDLORD reserves the right to enter the residence at
reasonable times to inspect, make necessary repairs or improvements,
supply services or show it to prospective residents, purchasers,
workmen, appraisers, inspectors or contractors and the TENANTS
agree to cooperate. However, the LANDLORD shall notify the
TENANTS of the time and date of the entry of the residence and the
TENANTS shall be present if they so desire.
(Rental Agreement, Defs.’ Mot., Ex. B at 4, ¶12.)
III.
ANALYSIS
Plaintiff alleges that the search of his property was in violation of his Fourth
Amendment right to be free from unreasonable searches. Administrative searches
by building inspectors “are significant intrusions upon the interests protected by the
Fourth Amendment, . . . [and] such searches when authorized and conducted
without a warrant procedure lack the traditional safeguards which the Fourth
Amendment guarantees to the individual . . . .” Camara v. Municipal Court of City
and County of San Francisco, 387 U.S. 523, 534 (1967); see also Makula v. Vill. of
Schiller Park, 1995 WL 755305, at *4 (N.D. Ill. Dec. 14, 1995) (“Simply put, ‘the
power of municipal building, fire, health, and other similar officials to enter any
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building without permission for the performance of duties is, in the absence of an
emergency, violative of the constitutional guarantees against unreasonable search
and seizure, unless a search has been authorized by a valid search warrant.’”)
(citation omitted). The Supreme Court has explained that warrantless inspection
searches clearly implicate the purposes behind the Fourth Amendment, because
“when the inspector demands entry, the occupant has no way of knowing whether
enforcement of the municipal code involved requires inspection of his premises, no
way of knowing the lawful limits of the inspector’s power to search, and no way of
knowing whether the inspector himself is acting under proper authorization.”
Camara, 387 U.S. at 532.
Defendants do not argue that any exigency warranted the search of Plaintiff’s
property. 1 Defendants’ only stated basis for claiming they had lawful authority to
enter Plaintiff’s property was the permission granted by Montgomery’s landlord.
The question, therefore, is whether Barr’s consent was sufficient to authorize entry.
An exception to the Fourth Amendment’s warrant exists “when someone with actual
or apparent authority consents to the search or seizure,” and “[a] third party with
common authority over the premises sought to be searched may provide such
consent.” United States v. Aghedo, 159 F.3d 308, 310 (7th Cir. 1998). “Common
authority requires ‘mutual use of the property by persons generally having joint
access or control for most purposes, so that it is reasonable to recognize that any of
the cohabitants has the right to permit the inspection in his own right and that the
Defendants have not described the nature of the ordinance violations. It can be presumed,
however, that if they implicated urgent health or safety concerns, Defendants would have
seen fit to list the violations somewhere in their motion.
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others have assume the risk that one of their number might permit the common
area to be searched.’” United States v. Brown, 328 F.3d 352, 356 (7th Cir. 2003)
(citation omitted). Defendants have not established as a matter of law that Barr had
common authority over the premises with Montgomery. To the contrary, the fact
that Barr did not have keys to all the locks, which had to be broken to effect entry,
strongly suggested that the landlord did not have joint access or control.
Barr’s status as Montgomery’s landlord does not by itself establish that the
consent was valid, because “[a] landlord does not have authority to permit a search
of his tenant’s leasehold . . . .” United States v. Chaidez, 919 F.2d 1193, 1201 (7th
Cir. 1990) (citing Chapman v. United States, 365 U.S. 610, 616 (1961)); see Georgia
v. Randolph, 547 U.S. 103, 110-12 (2006) (“A tenant in the ordinary course does not
take rented premises subject to any formal or informal agreement that the landlord
may let visitors into the dwelling . . . .”) (citing Chapman, 365 U.S. at 617). It is
possible that certain unusual tenancy agreements could provide a landlord with
such authority, but Defendants have not established that the standard language of
the Rental Agreement allows Barr an unfettered right to allow third parties to
access Montgomery’s property without his consent. See Randolph, 547 U.S. 110-12.
Furthermore, there is an issue of material fact as to whether Defendants
reasonably believed Barr had the authority to allow third parties to enter the locked
property. See United States v. Richards, 741 F.3d 843, 850 (7th Cir. 2014) (“When
determining whether an individual has apparent authority to consent, the court
employs an objective standard; officers may conduct a search without a warrant if
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they ‘reasonably (though erroneously) believe’ that the person consenting had
authority over the premises.”). The undisputed material facts establish only that
Defendants were aware the property was leased by Montgomery, he did not consent
to the search, and his landlord – who did not clearly have common authority over
the premises – requested and purported to authorize the search. A jury could find
that Defendants did not reasonably believe Barr had the authority to consent to the
search. See Randolph, 547 U.S. at 112 (“A person on the scene who identifies
himself, say, as a landlord or a hotel manager calls up no customary understanding
of authority to admit guests without the consent of the current occupant.”).
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment [Doc.
No. 67] is denied.
SO ORDERED.
ENTERED:
DATE:
___________________________
HON. MARIA VALDEZ
United States Magistrate Judge
October 23, 2015
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