Cooper v. The City of Chicago et al
Filing
138
MOTION by Plaintiff Gary Cooper for judgment as a Matter of Law on His Unlawful Entry Claim (Turkcan, Kevin)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
GARY COOPER,
Plaintiff,
vs.
The CITY OF CHICAGO, et al.,
Defendants.
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16 CV 3519
Judge KENNELLY
PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER
OF LAW ON HIS UNLAWFUL ENTRY CLAIM
Plaintiff Gary Cooper respectfully requests that this Court enter a judgment as a matter of
law on his Fourth Amendment unlawful entry claim because Defendant Officers did not have a
warrant, exigent circumstances, or consent to enter his apartment on March 22, 2014.
ARGUMENT
There is no dispute that Defendant Officers made a warrantless entry into Cooper’s home
on March 22, 2014 and that neither Cooper nor his girlfriend D’Andrea Crossley consented to that
warrantless entry. Defendant Officers have been fully heard with respect to their reasons for
entering Cooper’s apartment without a warrant, and none of those reasons amount to a reasonable
belief that someone inside the apartment was in need of immediate emergency aid. Plaintiff is
entitled to a judgment at a matter of law that Defendant Officers’ warrantless entry of his apartment
on March 22, 2014 was unlawful.
Federal Rule of Civil Procedure 50(a) provides as follows:
(1) If during a trial by jury a party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find for that party on
that issue, the court may determine the issue against that party and may grant a
motion for judgment as a matter of law against that party with respect to
a…defense that cannot under the controlling law be maintained or defeated
without a favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at any time before
submission of the case to the jury. Such a motion shall specify the judgment
sought and the law and the facts on which the moving party is entitled to
judgment. Fed. R. Civ. P. 50(a).
The Fourth Amendment protects “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. AMEND. IV.
“[P]hysical entry of the home is the chief evil” that the Fourth Amendment targets, United States v.
United States District Court for the E. Dist. of Mich., S. Div., 407 U.S. 297, 313 (1972), and it is “a ‘basic
principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are
presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980) (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 477 (1971)). The Fourth Amendment “prohibits the police from making a
warrantless and nonconsensual entry into a suspect’s home in order to make a routine…arrest, even
for a felony, and even with probable cause.” Hawkins v. Mitchell, 756 F.3d 983, 992 (7th Cir. 2014)
(citing Payton, 445 U.S. at 576)).
That said, the Fourth Amendment does allow police officers to enter a home without a
warrant or consent when (1) probable cause supports the entry and (2) exigent circumstances exist.
United States v. Andrews, 442 F.3d 996, 1000 (7th Cir. 2006). Exigent circumstances “exist when there
is a compelling need for official action and no time to secure a warrant, such as when an officer
must enter premises to render emergency assistance to an injured occupant or to protect an
occupant from imminent injury.” United States v. Venters, 539 F.3d 801, 807 (7th Cir. 2008) (quotation
marks and citations omitted). However, the Seventh Circuit has explained that “exigent
circumstances do not exist when the underlying offense is minor, typically a misdemeanor.”
Hawkins, 756 F.3d at 992. It should be noted that characterizing a warrantless entry of a home as a
“well-being check” or a “premises check” does not change the Fourth Amendment analysis. See
Sutterfield v. City of Milwaukee, 751 F.3d 542, 553-54 (7th Cir. 2014) (the “community caretaking
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function” exception to the warrant requirement only applies to searches of automobiles, not
searches of homes); Fitzgerald v. Santoro, 842 F. Supp. 2d 1064 (N.D. Ill. 2014) (applying the Fourth
Amendment exigent circumstances test to a warrantless search of a home that the police
characterized as a “well-being check.”).
Defendant Officers admit that they did not have a warrant to search Cooper’s apartment.
Thus, their entry into Cooper’s home was presumptively unreasonable as a matter of law, and they
must show that either (1) they had consent of a resident of the apartment to enter or (2) that
probable cause and exigent circumstances justified their warrantless entry and search. A landlord
cannot consent to a search of his tenant’s leasehold. U.S. v. Chaidez, 919 F.2d 1193, 1201 (7th Cir.
1990) (citing Chapman v. United States, 365 U.S. 610 (1961)). Furthermore, exigent circumstances did
not justify Defendant Officers’ warrantless entry because they were, at most, investigating a property
damage and noise complaint. Nothing in the record suggests that Defendant Officers thought
anyone inside the apartment was injured or that evidence of a serious crime was being destroyed.
Thus, this Court should grant judgment as a matter of law in Cooper’s favor on his unlawful entry
claim.
I. Cooper did not consent to Defendant Officers’ entry, and as a matter of law, Cooper’s
landlord could not provide consent.
It is undisputed that neither Cooper nor his girlfriend consented to Defendant Officers’
search of their apartment. Thus, the only source of “consent” that Defendant Officers can point to
is Cubic, who opened the door to Cooper’s apartment for them. However, a landlord does not have
authority to permit a search of his tenant’s leasehold. Chaidez, 919 F.2d at 1201. The Supreme Court
has explained that this rule exists because a “tenant in the ordinary course does not take premises
subject to any formal or informal agreement that the landlord may let visitors into the
dwelling…neither state-law property rights, nor common contractual arrangements, nor any other
source points to a common understanding of authority to admit third parties generally without the
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consent of a person occupying the premises.” Georgia v. Randolph, 547 U.S. 103, 112 (2006). Thus, a
person on the scene who identifies himself as a landlord calls up no authority to admit police
without the consent of the current occupant. Id.
Cubic’s status as Cooper’s landlord does not mean that Defendant Officers had “consent” to
enter Cooper’s apartment. The evidence establishes that Defendant Officers knew that Apartment
310 West was leased and occupied by tenants who had not consented to their entry or search.
Rather, only the landlord requested and purported to authorize the search. As a matter of law, there
was no reason for Defendant Officers to think that Cubic had authority, or even apparent authority,
to consent to the search because they knew that he was just the landlord. See Randolph, 547 U.S. at
112. While it is possible that certain unusual tenancy agreements could provide a landlord with such
authority, Defendants have not established and cannot establish that Cooper and Crossley’s lease
allowed Cubic “an unfettered right to allow third parties to access [Cooper’s] property without his
consent.” Montgomery v. Village of Posen, No. 14 C 3846, 2015 WL 6445456, at *3 (N.D. Ill. Oct. 23,
2015) (Valdez, J.). Nobody with authority to consent to Defendant Officers’ search did so, and
Defendants cannot rely upon consent to justify their warrantless entry into Cooper’s apartment.
II. No exigent circumstances justified Defendant Officers’ warrantless entry of Cooper’s
apartment.
Defendant Officers did not have a warrant or consent to enter Cooper’s apartment, so the
only remaining way for them to justify their entry is to demonstrate that they had both probable
cause and exigent circumstances to enter the apartment. During this trial the only “exigencies”
Defendant Officers offered to try and justify their warrantless entry were: (1) The possibility that
someone in Cooper’s apartment was being hurt and (2) the possibility that Cooper was causing
property damage in his apartment. Nothing in the record supports the first justification, and the
second is invalid as a matter of law.
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The Supreme Court has outlined several exigencies that may justify a warrantless entry of a
home. King, 563 U.S. at 460. Under the “emergency aid” exception, “officers may enter a home
without a warrant to render emergency assistance to an injured occupant or to protect an occupant
from imminent injury.” Stuart, 547 U.S. at 403. This exigency does not apply in this case.
A. Defendant Officers did not have exigent circumstances under the “emergency aid”
exception.
The Supreme Court has explained that the “emergency aid exception” requires “an
objectively reasonable basis for believing that a person within [the house] is in need of immediate
aid.” Michigan v. Fisher, 588 U.S. 45, 47 (2009) (internal quotations and citations omitted). Defendant
Clyne testified that she, Papadopoulos, and Schneider entered Cooper’s apartment because she
wanted to make sure that Gary Cooper was okay. However, Clyne also admitted the following:
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She did not hear anything other than a banging sound.
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She did not hear any screams for help or anybody saying, “Stop!”
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There was no indication that a crime was being committed in the third floor
apartment.
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She did not have any information that Cooper had ever committed an act of
violence in the apartment.
In addition, Defendants Papadopoulos and Schneider testified that they did not hear anything at all
emanating from the apartment prior to entering. The police report that Defendant Schneider
authored says nothing about any suspicions that someone was being harmed in Cooper’s apartment.
Rather, it says only that Defendant Officers heard a pounding noise and believed that damage was
being done “to the apartment” – not to a person.
The evidence does not support the “emergency aid exception” to the warrant requirement,
and this Court should not allow Defendant Officers to transform an alleged pounding noise into an
emergency. The record is devoid of any evidence that anyone inside Cooper’s apartment was hurt or
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otherwise in need of police assistance at the time Defendant Officers entered the apartment. Thus,
the “emergency aid exception” does not apply, and Cooper is entitled to judgment as a matter of law
on his unlawful entry claim.
B. The possibility of minor property damage does not constitute exigent circumstances.
This Court should reject any argument that Defendant Officers’ fear of property damage in
Cooper’s apartment constituted exigent circumstances because the authority on that issue does not
support such a conclusion. The Supreme Court has explained that “application of the exigentcircumstances exception in the context of a home entry should rarely be sanctioned when there is
probable cause to believe that only a minor offense…has been committed.” Welsh v. Wisconsin, 466
U.S. 740, 753 (1984) (noting that “of those courts addressing the issue, most have refused to permit
warrantless home arrests for nonfelonious crimes.”). “When the government’s interest is only to
arrest for a minor offense, th[e] presumption of unreasonableness is difficult to rebut.” Id. at 751.
Criminal damage to property is a misdemeanor offense in Illinois, see 750 ILCS 5/21-1, so even if
Defendant Officers had probable cause to think that crime was being committed in Apartment 310
West or had been committed in the apartment above some days before, they still did not have
exigent circumstances to enter the apartment without a warrant.
Indeed, the possibility of property damage does not give rise to exigent circumstances. See,
e.g., U.S. v. Williams, 354 F.3d 497, 505 (2003) (“[T]he potential danger was merely the risk of damage
to property and such risk was, at best, speculative. Danger of water damage to a carpet is certainly
not urgent within the meaning of the “risk of danger” exigency.”); see also McDowell v. Jefferson County,
No. 15 CV 507, 2017 WL 241319, at *5 (D. Idaho Jan. 18, 2017) (“The defendants cite to no case
holding that serious damage to property, without more, would constitute exigent circumstances, and
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the Court can find none.”).1 Here, Defendant Clyne testified that she saw two holes in the drywall
where the doorknob apparently hit the wall in the apartment above Cooper’s before deciding to
enter his apartment. The upstairs apartment was under construction at the time. The damage to the
wall was behind the door where the doorknob would strike the wall if a door was opened too
quickly and the door did not have a doorstop installed yet, and Clyne admitted that she does not
know whether a doorstop had been installed. It is precisely for situations such as was presented here,
that the warrant requirement exists. The police stepped into a landlord tenant dispute on the side of
the landlord without knowing all the facts or understanding the situation. Even if the property
damage allegations were true, minor damage to one apartment does not justify a warrantless entry
into a different apartment.
Furthermore, the only indication of possible property damage in Cooper’s apartment was a
pounding sound that Defendants Clyne claims she heard, but that Papadopoulos and Schneider did
not hear. Any number of completely legal activities could produce a loud pounding noise. Nothing
about what Defendant Officers supposedly heard suggested that Cooper was causing serious
property damage to Apartment 310 West. Thus, even if the possibility of serious property damage
could justify a warrantless entry of a home, the evidence at trial shows that Defendant Officers had
no reason to think that serious property damage was occurring in Cooper’s apartment. Thus, this
Court should grant judgment as a matter of law in Cooper’s favor on his unlawful entry claim.
III. Defendant Officers’ subjective beliefs are irrelevant to this motion for judgment as a
matter of law.
During her testimony, Clyne suggested that the banging noises coming from Apartment 310
and the minor property damage in Apartment 410 caused her to believe that Cooper was physically
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Plaintiff’s counsel has found only one case in this Circuit – an unpublished district court opinion from 1987
– that suggests that serious damage to property can give rise to exigent circumstances. Bradshaw v. Zebella, No.
85 C 6151, 1987 WL 19545, at *5 (N.D. Ill. Oct. 30, 1987) (Alesia, J.). However, that case involved a search
of a hotel for a suspect who had stabbed a woman in downtown Chicago just two hours earlier, so its
reasoning is inapplicable here.
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harming someone inside his apartment. Cooper submits that Defendants’ subjective beliefs are
irrelevant to his Fourth Amendment claim, and Clyne never actually held those beliefs anyway.
A police officer’s subjective belief that exigent circumstances exist is insufficient to justify a
warrantless search. Richardson, 208 F.3d at 629. “Whether the exigent circumstances exception
justifies warrantless action is judged by an objective standard: we ask whether it was reasonable for
the police officers on the scene to believe, in light of the circumstances they faced, that there was a
compelling need to act and no time to obtain a warrant.” Sutterfield v. City of Milwaukee, 751 F.3d 542,
557 (7th Cir. 2014); see also Hawkins v. Mitchell, 756 F.3d 983, 992 (7th Cir. 2014) (“Analysis of the
reasonableness of the police officers’ exigency determination is entirely objective; it considers only
what they reasonably should have known at the time of their warrantless home entry.”); Siliven v.
Indiana Dept. of Child Services, 635 F.3d 921, 929 (7th Cir. 2011) (same).
Clyne claims that she found the unexplained loud banging and pounding from Plaintiff’s
apartment to be worrying. But these “facts” are merely Clyne’s speculations and (alleged) subjective
beliefs and they do not establish exigent circumstances. See, e.g., Goldberg v. Junion, 2016 WL 5341248,
at *8 (S.D. Ind. Sept. 23, 2016) (explaining that police officers’ speculation that the plaintiff might
have a gun did not create exigent circumstances, especially when they “present[ed] no evidence that
Plaintiff was violent or threatening during this encounter.”). The evidence at trial in this case
establishes that Defendants entered and remained in Cooper’s apartment illegally, and their
subjective beliefs cannot prevent judgment as a matter of law. Cooper’s motion for judgment as a
matter of law on his unlawful entry claim should be granted.
CONCLUSION
Defendant Officers had no legal justification to enter Plaintiff’s apartment, and they knew it.
They made a warrantless entry based on, at most, some pounding noises. The case law is clear:
Defendant Officers’ warrantless search of Cooper’s apartment was unreasonable and illegal. No
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reasonable jury could conclude otherwise. Thus, the Court should grant judgment as a matter of law
in Cooper’s favor on his unlawful entry claim.
Respectfully Submitted,
/s Kevin T. Turkcan
One of Plaintiff’s Attorneys
Kevin T. Turkcan
HAMILTON LAW OFFICE, LLC
53 West Jackson Boulevard, Suite 452
Chicago, IL 60604
312.726.3173
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