Jones et al v. Bittner, et al
Filing
97
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 5/2/2016:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHARLES JONES,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.
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Case No. 14 C 4023
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On April 17, 2015, Plaintiff Charles Jones filed a five-count First Amended Complaint
against Defendants City of Chicago and certain Chicago police officers, including Defendant
Gary Olson, alleging constitutional violations, along with supplemental state law claims. See 28
U.S.C. §§ 1331, 1367(a). Before the Court is Defendants Olson’s and the City’s motion for
partial summary judgment as to Count I of the First Amended Complaint brought pursuant to
Federal Rule of Civil Procedure 56(a). In Count I, Plaintiff alleges that Defendant Olson
violated the Warrant Clause of the Fourth Amendment because prior to obtaining the search
warrant executed on June 1, 2012 that led to Plaintiff’s arrest, Defendant Olson failed to
establish the cooperating individual’s reliability and failed to sufficiently corroborate the
cooperating individual’s information. For the following reasons, the Court grants Defendants’
motion.1
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The Court, in its discretion, denies Plaintiff’s motion to strike Defendants’ Local Rule
56.1(a)(3) Statement because the Court is satisfied that it has subject matter jurisdiction over this
matter and that venue is proper, although Defendants failed to state these facts pursuant to Local
Rule 56.1(a)(3)(B). Also, despite Defendants’ failure to describe the parties under Local Rule
56.1(a)(3)(A), the Court denies Plaintiff’s motion because Plaintiff does not explain how
Defendants’ failure prejudiced him. See Dr. Robert L. Meinders, D.C., Ltd. v. UnitedHealthcare,
BACKGROUND
Before obtaining the search warrant that Defendant Officers executed on June 1, 2012, in
his capacity as a Chicago police officer assigned to the Gang Enforcement Division, Defendant
Olson received information from a cooperating individual, referred to as “John Doe,” regarding
the sale of narcotics from a residence at 5645 S. Carpenter Street, Chicago, Illinois on May 31,
2012. (R. 82, Defs.’ Rule 56.1 Stmt. Facts ¶ 1.) During their conversation, John Doe informed
Defendant Olson that on May 30, 2012, he traveled to a two-story, orange brick, single family
residence located at 5645 S. Carpenter Street with the intent to purchase heroin from an AfricanAmerican male known as “Charles Jones.” (Id. ¶ 2.) Also during this conversation, John Doe
disclosed to Defendant Olson that he had been purchasing heroin from Charles Jones on a daily
basis over the previous month. (Id. ¶ 3.) Further, John Doe told Defendant Olson that on May
30, 2012, when he went to the two-story, orange brick, single family residence located at 5645 S.
Carpenter and knocked on the door, Charles Jones invited him to come inside. (Id. ¶ 4.) John
Doe explained to Defendant Olson that after entering the residence, Charles Jones asked “How
many you need?” and he responded, “Let me get two.” (Id. ¶ 5.) Also, John Doe informed
Defendant Olson that at that point, he handed Charles Jones $20.00 and waited in the front living
room while Charles Jones entered a bedroom in the middle of the residence. (Id.) John Doe told
Defendant Olson that after a few moments, Charles Jones returned from the bedroom holding a
plastic sandwich bag that contained numerous smaller plastic bags, each containing a white
powder-like substance that John Doe thought was heroin. (Id. ¶ 6.) After Charles Jones handed
Inc., 800 F.3d 853, 858 (7th Cir. 2015) (“District courts are entitled to ‘considerable discretion in
interpreting and applying their local rules.’”) (citation omitted).
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him the two small bags, John Doe left the residence, tried the powder-like substance, and felt a
euphoric high like he had in the past when he used heroin. (Id. ¶¶ 7, 8.) In addition, John Doe
revealed to Defendant Olson that Charles Jones never turned him away from purchasing heroin
when he went to the residence at 5645 S. Carpenter Street. (Id. ¶ 9.)
After this May 31, 2012 conversation, Defendant Olson drove with John Doe past the
two-story, orange brick, single family residence located at 5645 S. Carpenter Street, at which
time John Doe pointed to the residence and stated that it was the location where he purchased
heroin from Charles Jones on May 30, 2012 and in the past. (Id. ¶¶ 10, 11.) Defendant Olson
then observed that the address sign on the front lawn of the residence listed the number “5645.”
(Id. ¶ 12.) Thereafter, Defendant Olson retrieved a computerized photograph of Charles Jones
and identifying information from the Illinois Department of Corrections website, and John Doe
positively identified Charles Jones’s photograph as the individual who sold him heroin on May
30, 2012 from the residence located at 5645 S. Carpenter Street. (Id. ¶ 13.)
Based on this information, Defendant Olson thought that heroin was being stored and
sold from the two-story, orange brick, single family residence at 5645 S. Carpenter. (Id. ¶ 14.)
Defendant Olson then requested that a search warrant be issued for Plaintiff and the residence
located at 5645 S. Carpenter by preparing and presenting to a Circuit Court of Cook County
judge a “Complaint for Search Warrant” that contained each of the aforementioned facts. (Id. ¶
15.) Prior to the issuance of the search warrant, Defendant Olson and John Doe appeared before
the Circuit Court judge for questioning where Defendant Olson presented and made available
John Doe’s criminal history, including possible pending investigations, to the Circuit Court
judge. (Id. ¶ 16.) On May 31, 2012, after examining the facts in the “Complaint for Search
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Warrant,” the Circuit Court judge determined that it stated facts sufficient to show probable
cause to authorize the search of Plaintiff and the residence located at 5645 S. Carpenter. (Id. ¶
17.) The judge then signed and issued the search warrant on May 31, 2012. (Id. ¶ 18.)
At his deposition, Defendant Olson testified that he knew the cooperating individual
referred to as “John Doe” for two to four years prior to John Doe providing the information
underlying the May 31, 2012 search warrant. (R. 85-2, Ex. G., Olson Dep., at 28.) Defendant
Olson further testified that he knew that John Doe had a criminal record and that he had used
heroin. (Id. at 34, 78.) Also at his deposition, Defendant Olson explained that he considered
John Doe’s information about the residence at 5645 S. Carpenter Street reliable because he and
John Doe drove past the property and that it was the same property John Doe had described. (Id.
at 84.) Furthermore, Defendant Olson testified that he was confident that John Doe was reliable
because John Doe had a proven success rate over the years Defendant Olson had worked with
him. (Id. at 98, 113-14.)
SUMMARY JUDGMENT 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). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); see also Life Plans, Inc. v. Security
Life of Denver Ins. Co., 800 F.3d 343, 349 (7th Cir. 2015). In determining summary judgment
motions, “facts must be viewed in the light most favorable to the nonmoving party only if there
is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167
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L.Ed.2d 686 (2007). The party seeking summary judgment has the burden of establishing that
there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). After “a properly supported motion for summary
judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine
issue for trial.’” Anderson, 477 U.S. at 255 (quotation omitted). “To survive summary
judgment, the non-moving party must show evidence sufficient to establish every element that is
essential to its claim and for which it will bear the burden of proof at trial.” Life Plans, Inc., 800
F.3d at 349.
ANALYSIS
In Count I of the First Amended Complaint, Plaintiff alleges that Defendant Olson
violated the Warrant Clause of the Fourth Amendment by failing to establish the cooperating
individual’s reliability and failing to sufficiently corroborate the individual’s information when
obtaining the search warrant that led to his arrest. By doing so, Plaintiff argues that Defendant
Olson recklessly disregarded the truth when obtaining the search warrant, and thus the warrant
lacked probable cause. See Betker v. Gomez, 692 F.3d 854, 862 (7th Cir. 2012) (“Statements
that are both unreliable and uncorroborated do not support probable cause.”).
“The Fourth Amendment requires that a warrant be supported by probable cause and that
it describe, with particularity, the place to be searched and the items or persons to be seized.”
Guzman v. City of Chicago, 565 F.3d 393, 396 (7th Cir. 2009). “A search warrant affidavit
establishes probable cause when it sets forth facts sufficient to induce a reasonably prudent
person to believe that a search thereof will uncover evidence of a crime.” United States v.
Gregory, 795 F.3d 735, 741 (7th Cir. 2015). “When an application for a search warrant is
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supported by an informant’s tip, courts consider the totality of the circumstances to determine
whether that information establishes probable cause for the search, including: (1) the extent to
which the police have corroborated the informant’s statements; (2) the degree to which the
informant has acquired firsthand knowledge of the events; (3) the amount of detail provided; (4)
the amount of time between the date of the events and the application for the search warrant; and
(5) whether the informant personally appeared before the judge issuing the warrant.” Id.; see
also United States v. Glover, 755 F.3d 811, 816 (7th Cir. 2014). “‘[N]o one factor necessarily
dooms a search warrant,’” and in “applying these factors, the reviewing court typically concerns
itself only with the content of the affidavit to determine whether the warrant is facially valid.”
Glover, 755 F.3d at 816 (citation omitted); see also United States v. Bell, 585 F.3d 1045, 1049
(7th Cir. 2009) (“No one factor is dispositive, so a deficiency in some areas can be compensated
by a stronger showing in others.”). There is a presumption that an affidavit supporting a search
warrant is valid, and thus to survive summary judgment, a plaintiff must “‘provide evidence that
the officers knowingly or intentionally or with a reckless disregard for the truth made false
statements to the judicial officer’ and show that ‘the false statements were necessary to the
judicial officer[‘s] determination[ ] that probable cause existed.’” Suarez v. Town of Ogden
Dunes, Ind., 581 F.3d 591, 596 (7th Cir. 2009) (citation omitted).
Turning to the totality of the circumstances factors, which focus on the informant’s
reliability, veracity, and basis of knowledge, see Junkert v. Massey, 610 F.3d 364, 368 (7th Cir.
2010), it is uncontested that Defendant Olson corroborated the information John Doe provided
by driving by 5645 S. Carpenter Street, the residence where John Doe told Defendant Olson he
had purchased narcotics from Charles Jones on a daily basis for a month, to perform an in-person
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identification of the residence. Defendant Olson further corroborated the information John Doe
provided by showing John Doe a photograph of Plaintiff, after which John Doe confirmed he
was the individual from whom he had purchased narcotics at 5645 S. Carpenter Street over the
course of the previous month. In addition, John Doe provided information based on his firsthand encounters and personal observations, including: (1) the address and description of the
residence where he had purchased heroin on a daily basis for a month; (2) the first and last name
of the individual from whom he had purchased the heroin; and (3) the specific manner in which
he purchased heroin when he went to the residence at 5645 S. Carpenter Street. As to the next
factor, the time lapse between John Doe’s heroin purchase, conversation with Defendant Olson,
and the Circuit Court judge’s issuance of the search warrant was slight – a total of two days.
Last, it is also undisputed that the cooperating individual appeared with Defendant Olson before
the Circuit Court judge for questioning prior to the issuance of the search warrant. Thus, under
the totality of the circumstances, Defendants have presented evidence that the search warrant –
based on the cooperating individual’s tips – was facially valid because it was based on reliable,
corroborated information. See United States v. Searcy, 664 F.3d 1119, 1122-23 (7th Cir. 2011).
Plaintiff nonetheless argues that Defendant Olson recklessly disregarded the truth
because he did not establish the reliability of John Doe on the face of the affidavit for the search
warrant. More specifically, Plaintiff argues that “[r]ecent 7th Circuit cases discussed below have
held that when there is no evidence in the affidavit to establish the reliability of the informant,
there is no basis for the Court to find the cooperating individual reliable or to credit his account
of the events.” (R. 84, Pl.’s Resp. Brief, at 4-5.) Plaintiff’s statement is not an accurate reading
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of Seventh Circuit case law.2 To clarify, Plaintiff primarily relies on the Seventh Circuit’s
opinion in Glover, in which the Seventh Circuit explained that “[c]ases that test the sufficiency
of affidavits for warrants obtained based on informants are highly fact-specific, but information
about the informant’s credibility or potential bias is crucial.” Id. at 816. In Glover, under the
totality of the circumstances test, the Seventh Circuit concluded that “the complete omission of
information regarding Doe’s credibility is insurmountable,” which included material omissions
regarding the informant’s gang activity, criminal record, prior use of aliases to deceive police,
and his expectation of payment. See id. at 817. Such is not the case here because the
“Complaint for Search Warrant” unequivocally states that “J. Doe’s criminal history, including
possible pending investigations, if any, ha[s] been presented and made available to the
undersigned judge.” (Defs.’ Stmt. Facts ¶ 16.) In addition, Defendant Olson and John Doe
appeared before the Circuit Court judge for questioning. (Id.) Indeed, Plaintiff’s bare-boned
allegations that Defendant Olson withheld other “unsavory or incriminating facts” about John
Doe, such as his drug use, is not supported by the record, especially because it was clear on the
face of the “Complaint for Warrant” that John Doe purchased and personally used heroin during
the relevant time period. Accordingly, Plaintiff’s reading of Glover is misplaced because it fails
to recognize Supreme Court and Seventh Circuit precedent that directs district courts to apply a
totality of the circumstances analysis when an informant’s tip is the basis for a search warrant,
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Similarly, Plaintiff’s assertion that a “cooperating individual about whom nothing is
known is not entitled to the presumption of reliability that can be accorded to a registered
informant” also misstates the case law he relies upon. See, e.g., United States v. Searcy, 664
F.3d 1119, 1123 (7th Cir. 2011) (“[A] magistrate in the exercise of sound judgment is entitled to
give greater weight to a tip from a known informant, who can be held responsible should he be
found to have given misleading information to police officers, and thus has an incentive to
provide truthful information to the detectives.”) (citation omitted).
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and, as discussed above, under the totality of the circumstances, the search warrant in this matter
was facially valid because it was based on reliable, corroborated information. See Illinois v.
Gates, 462 U.S. 213, 241, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see also Bell, 585 F.3d at
1051 (“we must look to the totality of the circumstances because ‘the whole may be more than
the sum of the parts when assessing probable cause.’”) (citation omitted).
Plaintiff also contends that Defendant Olson’s conduct was reckless because the address
at which the drug transactions took place in May 2012 was not his residence. In particular,
Plaintiff highlights that he did not live at 5645 S. Carpenter Street and that when Defendant
Olson retrieved information from the Illinois Department of Corrections website, he should have
noticed from the inmate search that his address was 7420 S. Ingleside, Chicago, Illinois. (R. 85,
Pl.’s Rule 56.1 Stmt. Add’l Facts ¶ 1.) Based on this information, Plaintiff contends that
Defendant Olson purposely withheld information from the Circuit Court judge. Plaintiff’s
argument, however, is based on an unreasonable inference that is speculative, and thus does not
defeat summary judgment. See Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068,
1074 (7th Cir. 2016) (“our favor toward the nonmoving party does not extend to drawing
inferences that are supported only by speculation or conjecture.”). Indeed, there is no evidence
in the record – upon which to base a reasonable inference – that Defendant Olson purposely
withheld that Plaintiff’s address was 7420 S. Ingleside in Chicago. Furthermore, Plaintiff does
not explain how the validity of the search warrant hinges on where he lived at the time of the
drug transactions. See Suarez, 581 F.3d at 598; London v. Guzman, 26 F. Supp. 3d 746, 754
(N.D. Ill. 2014).
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The remainder of Plaintiff’s arguments pertain to either omissions that are not material or
information that emerged after the search warrant issued. See Suarez, 581 F.3d at 596
(“‘Immaterial’ misstatements or omissions do not invalidate the warrant.”); Guzman, 565 F.3d at
396 (“Information that emerges after the warrant is issued has no bearing on this analysis.”).
Plaintiff, for example, points to the following facts that Defendant Olson omitted from the
“Complaint for Search Warrant”: (1) John Doe’s motive in giving Defendant Olson information;
(2) Defendant Olson’s and John Doe’s past history; (3) how Defendant Olson and John Doe met;
(4) evidence of John Doe’s past reliability; and (5) if other people were present at the residence
at 5645 S. Carpenter Street. From reviewing the record, it appears that Plaintiff gleaned these
factors from the other Defendant Officers’ deposition testimony as to what they might have done
under the similar circumstances. (Pl.s’ Stmt. Facts ¶¶ 6, 10-15, 18, 36-39.) Plaintiff’s pointing
to additional information that could have been included in the affidavit does not detract from the
specific details Defendant Olson did provide in the affidavit. See United States v. Jones, 208
F.3d 603, 607 (7th Cir. 2000). Moreover, none of these omissions, together or separately, raises
a triable issue of fact that Defendant Olson made false statements – with a reckless disregard for
the truth – when requesting the search warrant at issue in this lawsuit. See Betker, 692 F.3d at
860 (“‘reckless disregard for the truth’ can be shown by demonstrating that the officer
‘entertained serious doubts as to the truth’ of the statements, had ‘obvious reasons to doubt their
accuracy,’ or failed to disclose facts that he or she ‘knew would negate probable cause.’”)
(citation omitted).
Viewing the facts and all reasonable inferences in Plaintiff’s favor, and based on the
totality of the circumstances, Plaintiff has failed to present evidence raising a genuine issue of
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material fact for trial that Defendant Olson knowingly, intentionally, or with reckless disregard
for the truth made false statements in requesting the warrant at issue, thus overcoming the
presumption of validity of Defendant Olson’s affidavit supporting the search warrant. See
Suarez, 581 F.3d at 596. The Court therefore turns to Plaintiff’s separate argument that the
warrant nevertheless lacked probable cause because Defendant Olson relied on “insufficient and
innocuous corroboration” in procuring the search warrant.
In his brief, Plaintiff argues that the “deference generally accorded to the warrant-issuing
judge’s initial determination of probable cause does not apply in this case since there is not
‘substantial evidence in the record supporting the judge’s decision’” and that “the warrant
did not set forth sufficient facts to cause a reasonably prudent person to believe that a search
would uncover criminal activity.” (Resp. Brief, at 12.) Further, Plaintiff posits that “Defendant
Olson could not have reasonably believed that the facts set forth in the affidavit were sufficient
to support a magistrate’s finding of probable cause.” (Id.) (emphasis in original). Plaintiff,
however, does not develop these arguments by explaining why the facts set forth in the
“Complaint for Warrant” were insufficient for a finding of probable cause by the issuing judge.
See United Cent. Bank v. Davenport Estate LLC, 815 F.3d 315, 318 (7th Cir. 2016) (unsupported
and perfunctory arguments are waived).
In any event, the Court would be hard-pressed to conclude that the information
Defendant Olson provided in the “Complaint for Warrant” failed to present sufficient facts “to
induce a reasonably prudent person to believe that a search thereof will uncover evidence of a
crime.” Gregory, 795 F.3d at 741; see also United States v. Mullins, 803 F.3d 858, 861 (7th Cir.
2015)
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(“Probable cause is established when, in light of the totality of the circumstances, the issuing
judge can make a practical, common-sense determination that there is a fair probability that
contraband or evidence of a crime will be found in a particular place.”). As discussed, John Doe
provided specific details – as opposed to generalized conclusions – about his daily purchases of
heroin from Charles Jones at 5645 S. Carpenter Street, where Charles Jones was arrested. These
facts were based on John Doe’s personal observations and first-hand knowledge of his drug
transactions with Charles Jones. The details he provided included how the heroin was packaged,
what the heroin cost, and how Charles Jones conducted the drug transactions. Moreover,
Defendant Olson corroborated John Doe’s information regarding the location of the narcotics
transactions and the identity of Charles Jones via a photograph identification. The Circuit Court
judge also had the opportunity to assess John Doe and ask him relevant questions. Given the
facts provided in the “Complaint for Warrant,” along with reasonable inferences drawn from the
facts, there was a substantial basis to conclude that the search would undercover evidence of a
crime. See United States v. Sewell, 780 F.3d 839, 845 (7th Cir. 2015). The Court therefore
grants Defendants’ partial motion for summary judgment.
CONCLUSION
For these reasons, the Court grants Defendants’ summary judgment motion.
Dated: May 2, 2016
ENTERED
______________________________
AMY J. ST. EVE
United States District Court Judge
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