Higdon v. Geneva Indiana City of et al
Filing
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OPINION AND ORDER The Court GRANTS IN PART and DENIES IN PART the Motion for Summary Judgment 31 , which included the arguments set forth in the Defendants' Motion to Strike 36 . Both Motions are termed as pending motions. By separate order, the Court will schedule a trial on the remaining Fourth Amendment claim against Officer Rasawehr. Signed by Chief Judge Theresa L Springmann on 3/28/19. (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
CALVIN DEWAYNE HIGDON,
Plaintiff,
v.
CAUSE NO.: 1:15-CV-115-TLS
CITY OF GENEVA, INDIANA, GENEVA
POLICE DEPARTMENT, AND GENEVA
POLICE OFFICER RONALD R.
RASAWEHR,
Defendants.
OPINION AND ORDER
The Plaintiff, Calvin Dewayne Higdon, sued the City of Geneva, Indiana, the Geneva
Police Department, and Geneva Police Officer Ronald R. Rasawehr for events that occurred at
his home on June 6, 2014.
The Defendants have filed a Motion for Summary Judgment [ECF No. 31], asserting that
they are entitled to judgment as a matter of law because the undisputed evidence establishes that
the individual officer has qualified immunity from the Plaintiff’s claims that he violated the
Plaintiff’s Fourth, Fifth, Eighth, and Fourteenth Amendment rights, that the Town of Geneva
(including the Geneva Police Department) cannot be liable as a matter of law pursuant to Monell
v. New York City Department of Social Services, 436 U.S. 658 (1978), and that no civil cause of
action exists under 18 U.S.C. § 242. In the Plaintiff’s Brief in Opposition to Defendants’ Motion
for Summary Judgment [ECF No. 34], the Plaintiff acknowledges the merits of the Defendants’
arguments in favor of summary judgment related to his claims under the Eighth and Fourteenth
Amendment and pursuant to 18 U.S.C. § 242. He further acknowledges that there is no evidence
that his injury was the result of an official policy or custom, as required for municipal liability.
Accordingly, the only claims that remain in dispute are those against the individual officer for
violations of his constitutional rights under the Fourth and Fifth Amendments.1 See Goodpaster
v. City of Indianapolis, 736 F.3d 1060, 1075 (7th Cir. 2013) (holding that the plaintiffs had
waived claims where they did not respond to defendant’s arguments and “did not provide the
district court with any basis to decide” them).
MOTION TO STRIKE
In connection with the pending Motion for Summary Judgment, the Defendant has
moved to strike [ECF No. 36] statements that are contained in the Affidavit of Dewayne Higdon,
and written statements that the Plaintiff attributes to a third party, Margaret LaPeer. The
Defendant argues that the statements do not comply with Federal Rule of Civil Procedure
56(c)(4), as they contain inadmissible hearsay and irrelevant information, and they lack
foundation. Because the Court can distinguish which statements may properly be considered
when deciding whether summary judgment is appropriate, the Court will not rule on the Motion
to Strike [ECF No. 36] as a separate motion. The Court has noted the Defendant’s objections and
will consider the objections to the extent they arise in the Court’s summary judgment analysis.
FACTUAL BACKGROUND
On June 6, 2014, at around 10:00 p.m., Deputy Marshal Ronald Rasawehr (Officer
Rasawehr) of the Town of Geneva Police Department responded to an unwanted party call at a
residence located in Geneva. When Officer Rasawehr arrived, the Plaintiff, Dewayne Higdon,
requested that Officer Rasawehr remove Margaret LaPeer from his residence. The Plaintiff
Because only Defendant Rasawehr is implicated in the remainder of the Court’s Opinion and Order, the
Court will refer to a singular Defendant going forward.
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advised that he wanted to put her items outside, and was concerned that LaPeer was attempting
to take property that belonged to the Plaintiff. Officer Rasawehr entered the home to locate
LaPeer. As she packed items from the bedroom, Officer Rasawehr directed the Plaintiff to stay
outside the bedroom. The Plaintiff continued to claim that LaPeer was taking items that belonged
to him. Officer Rasawehr ignored the Plaintiff’s request that the Plaintiff be allowed to pack
LaPeer’s belongings.
When LaPeer had gathered nearly all of her items from the house, she asked to talk to
Officer Rasawehr privately. LaPeer and Officer Rasawehr went outside, and the Plaintiff shut the
door, believing that LaPeer had all her personal property packed up and that Officer Rasawehr’s
assistance in removing LaPeer was complete. LaPeer then told Officer Rasawehr that the
Plaintiff had marijuana inside one of his pill bottles that was located next to his computer screen,
along with other paraphernalia that he used to smoke it. Officer Rasawehr clarified with LaPeer
that if he walked by the computer right then, that is where the marijuana would be located.
Officer Rasawehr followed LaPeer back inside the residence. While she gathered more
belongings from the bedroom, Officer Rasawehr went to the kitchen where the computer was
located. According to the Plaintiff, he used a flashlight to look around the dark kitchen, including
behind the Plaintiff’s computer and the freezer. Officer Rasawehr discovered a pill bottle that
contained marijuana, as well as other paraphernalia.
Officer Rasawehr arrested the Plaintiff for possession of paraphernalia and brought him
to jail, where he was detained for about an hour before he posted bond. On June 9, 2014, the
Plaintiff was charged with Possession of Marijuana and Possession of Paraphernalia stemming
from his June 6, 2014, arrest and Officer Rasawehr’s probable cause affidavit. The case was
dismissed on May 4, 2015.
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ANALYSIS
This Court will only grant summary judgment if all the admissible submissions indicate
that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Fed. R.
Civ. P. 56(a).
When public officers violate the constitutional rights of citizens, 42 U.S.C. § 1983
provides the vehicle for a legal claim. Officer Rasawehr has asserted that he is entitled to
qualified immunity, which is a doctrine that protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982) (citations omitted). Qualified immunity is intended to strike a balance between
“protect[ing] a government official’s ability to function without the threat of distraction and
liability” and “afford[ing] members of the public the ability to vindicate constitutional violations
by government officials who abuse their offices.” Gibbs v. Lomas, 755 F.3d 529, 537 (7th Cir.
2014) (internal quotation marks and citations omitted).
Because the Defendant has raised qualified immunity as a defense to the Plaintiff’s
constitutional claims, it is the Plaintiff’s burden to defeat it. Archer v. Chisholm, 870 F.3d 603,
613 (7th Cir. 2017); Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir. 2008). The Plaintiff satisfies
this burden if he shows (1) that the facts, taken in the light most favorable to the Plaintiff, make
out a violation of a constitutional right, and (2) that constitutional right was clearly established at
the time of the alleged violation, such that it would have been clear to a reasonable actor that his
conduct was unlawful. Pearson v. Callahan, 555 U.S. 223, 232 (2009); Williams v. City of Chi.,
733 F.3d 749, 758 (7th Cir. 2013) (citation omitted). “If either inquiry is answered in the
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negative, the defendant official is entitled to summary judgment.” Gibbs, 755 F.3d at 537. The
Court is not required to address the prongs in order. Pearson, 555 U.S. at 236.
A.
Fourth Amendment—Search
Officer Rasawehr first argues that he did not conduct a “search” because he observed
items of contraband in “plain view.” This assertion is inconsequential if, as the Plaintiff claims,
Officer Rasawehr had no lawful grounds to be in the Plaintiff’s kitchen. “[A]n essential predicate
to any valid warrantless seizure of incriminating evidence [is] that the officer did not violate the
Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.”
Horton v. California, 496 U.S. 128, 136 (1990); see also United States v. Curlin, 638 F.3d 562,
566 (7th Cir. 2011). The Court does not understand the Plaintiff to be challenging the “seizure”
of the marijuana as a violation of his Fourth Amendment rights, but to be challenging Officer
Rasawehr’s presence in his kitchen—to look for anything.
It is undisputed that Officer Rasawehr did not have a warrant to search the Plaintiff’s
kitchen. This case turns on whether LaPeer consented to the search possessing actual authority to
consent to a search, or consented under circumstances where it was reasonable for Officer
Rasawehr to believe that she possessed such authority. “A warrantless search does not violate the
Fourth Amendment if a person possessing, or reasonably believed to possess, authority over the
premises voluntarily consents to the search.” United States v. Groves, 530 F.3d 506, 509 (7th
Cir. 2008) (citing Georgia v. Randolph, 547 U.S. 103, 106 (2006)). If a person permits a third
party to exercise actual or apparent authority over his property, he is deemed to have “assumed
the risk that the third party might permit access to others, including government agents.” United
States v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (first citing United States v. Matlock, 415
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U.S. 164, 171 n.7 (1974); then citing United States v. Jensen, 169 F.3d 1044, 1049 (7th Cir.
1999)). “The key to consent is actual or apparent authority over the area to be searched.” Id.
(citing United States v. Aghedo, 159 F.3d 308, 310 (7th Cir. 1998)).2
Some factors that have been found in the caselaw to support a finding of actual or
apparent authority have included: (1) possession of a key to the premises; (2) the person’s
admission that she lives at the residence in question; (3) possession of a driver’s license listing
the residence as the driver’s legal address; (4) receiving mail and bills at that residence; (5)
keeping clothing at the residence; (6) having one’s children reside at that address; (7) keeping
personal belongings such as a diary or a pet at the residence; (8) performing household chores at
the home; (9) being named on the lease and/or paying rent; and (10) being allowed into the home
when the owner is not present. United States v. Groves, 470 F.3d 311, 319 (7th Cir. 2006)
(emphasizing that the list is not an exhaustive checklist and suggesting that no factor alone is
determinative one way or another); see also United States v. Saadeh, 61 F.3d 510, 517 (7th Cir.
1995) (“To assess whether apparent authority exists, we look for indicia of actual authority.”)
(first citing United States v. Rosario, 962 F.2d 733, 737 (7th Cir. 1992); then citing United States
v. Miller, 800 F.2d 129, 134 (7th Cir. 1986)).
1.
Actual Authority to Consent
If LaPeer possessed actual authority to consent to a search of the Plaintiff’s home, the
Court will not need to address the second prong of the qualified immunity analysis or apparent
The Supreme Court has recognized a narrow exception to the rule that consent by one resident of jointly
occupied premises is generally sufficient to justify a warrantless search. See Fernandez v. California, 571
U.S. 292, 300 (2014) (holding that refusal of consent by physically present inhabitant is dispositive as to
him, regardless of the consent of a fellow occupant). Although the Plaintiff claims that he had closed the
door prior to Officer Rasawehr re-entering, he does not allege that he was at the door and specifically
refused consent. Therefore, this exception is not implicated.
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authority. In that situation, LaPeer’s actual authority would justify the search and moot the issue
of whether Officer Rasawehr acted reasonably in assuming that she had authority.
Actual authority does not depend on property law distinctions but on whether there is
“‘mutual use of the property by persons generally having joint access or control for most
purposes.’” United States v. Ryerson, 545 F.3d 483, 487 (7th Cir. 2008) (quoting Matlock, 415
U.S. at 171 n.7). The case law is replete with examples where a girlfriend’s consent to search a
shared residence has been held to qualify as valid consent under the Fourth Amendment. Such
holdings are not surprising as these live-in girlfriends had mutual use of the property, and joint
access or control of the property for most purposes. Arguably, in this case, the Plaintiff has
presented facts that run counter to this conclusion. The Plaintiff maintains that LaPeer’s name
was not on the lease, she did not have a key to the house, she did not pay rent, she was not
allowed to be in the home when he was not present, she received no mail at the house, and she
did not purchase groceries to share with the Plaintiff. While the Defendant disputes some of
these assertions, such as whether the Plaintiff had a key, received mail at the house, or bought
groceries that the Plaintiff consumed, the facts must be considered in a light most favorable to
the Plaintiff. It is particularly significant that LaPeer was not permitted to be inside the house
unless the Plaintiff was present. The Defendant’s version creates a triable issue of fact regarding
LaPeer’s authority, but it does not entitle him to qualified immunity.
What is more, at the point in time when LaPeer offered her consent, the Plaintiff was
intent on ending any access she previously had to the residence. Cf. Ryerson, 545 F.3d at 487
(finding actual authority where, although the defendant’s girlfriend had left the home at the time
of the search, the defendant did “not claim that he kicked her out of the house; rather, she
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appears to have left on her own accord after a tiff with him”). Thus, LaPeer’s mutual use of the
property, and any joint access or control, were already revoked.
2.
Apparent Authority to Consent/Clearly Established Constitutional Right
It is incontestable, as the Plaintiff argues, that no reasonable officer could claim to be
unaware of the general rule well established by the Supreme Court that, absent consent or
exigency, a warrantless search of the home is presumptively unconstitutional. See Payton v. New
York, 445 U.S. 573, 586–88 (1980). But the statement is too general to be helpful, as “‘clearly
established law’ should not be defined ‘at a high level of generality.’” White v. Pauly, 137 S. Ct.
548, 552 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). The “general
proposition” that “an unreasonable search or seizure violates the Fourth Amendment is of little
help in determining whether the violative nature of particular conduct is clearly established.” alKidd, 563 U.S. at 742.
Apparent authority and qualified immunity are concepts that similarly focus on whether
an officer acted reasonably in light of the legal standards in place at the time of the alleged
violation. See Illinois v. Rodriguez, 497 U.S. 177, 185–89 (1990) (finding that apparent authority
exists where officers reasonably, although erroneously, believe that the person who consents to
their entry has the actual authority to do so). Violation of a constitutional right may be clearly
established either because “the violation is so obvious that a reasonable state actor would know
that what they are doing violates the Constitution, or if a closely analogous case establishes that
the conduct is unconstitutional.” Siebert v. Severino, 256 F.3d 648, 654–55 (7th Cir. 2001).
Accordingly, unless the facts involve an obvious case where the unlawfulness would have been
“apparent,” the Court must identify a case “where an officer acting under similar circumstances
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as Officer [Rasawehr] was held to have violated the Fourth Amendment.” White, 137 S. Ct. at
552. Qualified immunity is a fact-intensive analysis. See Ienco v. City of Chi., 286 F.3d 994,
1001 (7th Cir. 2002).
The Plaintiff, in his briefing, attempts to put this case in the realm of those that are so
obvious that a reasonable state actor would know that what he is doing violates the Constitution.
He does so by refuting that LaPeer gave Officer Rasawehr consent to search the kitchen. He
notes that nowhere in the probable cause affidavit did Officer Rasawehr state that LaPeer “gave
him consent or permission to search anywhere, let alone somewhere other than the bedroom
where her belongings were.” (Pl.’s Br. in Opp’n 15 (arguing that the Defendant’s facts do not
establish that LaPeer “gave her actual or implied consent to search the home and especially
nowhere other than in the bedroom where she was getting her tangible personal property”).)
The Plaintiff’s argument—that LaPeer never provided consent—relies on an incomplete
representation of the facts. The Plaintiff cannot dispute that LaPeer, outside of his sight and
hearing, initiated a conversation where she told Officer Rasawehr that marijuana was located in a
container next to the computer screen in the kitchen. When Officer Rasawehr asked if he would
find marijuana if he walked by the computer right then, LaPeer confirmed that he would. These
statements describe a location outside the bedroom, and identify what LaPeer expected—and
wanted—Officer Rasawehr to find. Then, when LaPeer and Officer Rasawehr proceeded back
inside the house together, Officer Rasawehr went straight to the kitchen. Far less has been held to
constitute consent. See, e.g., United States v. Sabo, 724 F.3d 891, 894 (7th Cir. 2013) (consent
found where arrestee opened door, stepped back and to the side, allowing police into his trailer);
Harney v. City of Chi., 702 F.3d 916, 925–26 (7th Cir. 2012) (consent found where officer
followed one of two arrestees into condominium unit and neither arrestee objected to officer’s
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presence in their home); United States v. Walls, 225 F.3d 858, 862–63 (7th Cir. 2000) (consent
found where arrestee opened door to officers, stepped back to allow officers’ entrance into home,
motioned for officers to follow her into kitchen); United States v. Cotnam, 88 F.3d 487, 495 (7th
Cir. 1996) (consent found where arrestee gestured to officers to open door with key and did not
object to their presence in his hotel room).
Thus, there can be no dispute that LaPeer consented to a search of the kitchen. The
question that remains for purposes of qualified immunity is whether an officer in Officer
Rasawehr’s position would be reasonable, even if erroneous, in believing that LaPeer had the
requisite authority to consent to the search. Apparent authority exists when, prior to
commencement of the search, the facts are such that a “person of reasonable caution” would
“believe that the consenting person had authority over the premises.” Ryerson, 545 F.3d at 489.
This does not mean that the police may assume authority whenever they are invited inside. “Even
when the invitation is accompanied by an explicit assertion that the person lives there, the
surrounding circumstances could conceivably be such that a reasonable person would doubt its
truth and not act upon it without further inquiry.” Rodriguez, 497 U.S. at 188; see also United
States v. Alexander, 573 F.3d 465, 474 (7th Cir. 2009) (noting that an officer has a duty to
inquire further as to a third party’s authority to consent to a search if the surrounding
circumstances make that person’s authority questionable). Facts that come to light after the
search began cannot reasonably have influenced an officer’s beliefs regarding apparent authority.
Alexander, 573 F.3d at 474; Groves, 470 F.3d at 319.
Before LaPeer offered her consent for Officer Rasawehr to look for contraband in the
kitchen, Officer Rasawehr had been inside the bedroom where LaPeer was currently keeping her
belongings. Although he had inquired about a driver’s license, she did not have one. The only
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other inquiry Officer Rasawehr made was to ask LaPeer how long she had lived at the residence.
Her answer indicated that she had been living there for six months. A person of reasonable
caution would believe that LaPeer had joint access to the kitchen, as well as the rest of the house,
during these six months as well as on the day in question. If this were the totality of facts, Officer
Rasawehr would have been reasonable in believing that LaPeer could consent to the search. But
Officer Rasawehr was also aware of the Plaintiff’s express desire that LaPeer vacate the premises
and take her belongings with her. It is the very reason Officer Rasawehr was present that evening
at the Plaintiff’s house. And there are no facts in the record that would cause a reasonable person
to believe that the Plaintiff did not intend for LaPeer to stay away, or that he would allow her to
continue to have any right of access to the house.
The Sixth Circuit, addressing the situation where a live-in girlfriend had been kicked out
of the residence she shared with her boyfriend, has observed:
We recognize that in the abstract, if an occupant with formal authority over the
premises takes affirmative and unambiguous action to break relations with a livein lover and to exclude the latter from the formerly shared dwelling, it may not be
reasonable to believe that the latter retains common authority to consent to a search.
However, the reasonableness of police officers’ beliefs is evaluated in light of all
particular facts known to the officers, not by abstracting from the particulars.
United States v. Penney, 576 F.3d 297, 309 (6th Cir. 2009). The court then concluded that, in the
case before it, the particular facts known to the officers from their past experience was that the
couple frequently quarreled and reconciled. Id. The officers had no reason to think the situation
was different on the particular day in question. Id. (“Lovers’ quarrels and reconciliations are as
much of a ‘reality in today’s world’ as is cohabitation without ‘legal formalities,’ and the police
cannot be faulted for not presuming that a particular quarrel put an end to the couple’s
relationship and living arrangements.”).
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Here, Officer Rasawehr had no such past experience to rely upon, at least none that has
been presented on the current record before the Court. Officer Rasawehr does not identify any
facts from which he could reasonably believe that LaPeer was still a legitimate resident of the
Plaintiff’s home after the Plaintiff’s affirmative and unambiguous action to break relations with
her and exclude her from the residence. He had first-hand knowledge of the circumstances under
which the consenting party has just been displaced from the residence, along with her personal
belongings, and would not continue to have any lawful access to the home. Officer Rasawehr
was on notice that the Plaintiff was concerned that LaPeer would steal from him, and that he was
taking measures to ensure that she had no access to his property. Although it would have been
reasonable for an officer to believe that, during the prior six months, the Plaintiff “assumed the
risk that [LaPeer] might permit access to others, including government agents,” the Plaintiff’s
actions on the evening of June 6, 2014, would have communicated to a reasonable officer that he
was eliminating the risk that LaPeer herself would have such access, much less retain common
authority to provide it to others.
Construing the facts of this case in a light most favorable to the Plaintiff, the Court finds
that this case does not require abstracting from the particulars to determine that conducting a
warrantless search based only on this consent would have been an obvious violation of the
Fourth Amendment. Where the controlling tenant revokes a third-party consenter’s mutual use of
the property, in the presence of the officer, and no other legal grounds exist to support a
continued right of access, that officer cannot reasonably rely on the third-party’s consent to gain
lawful access to conduct a warrantless search. Accordingly, Officer Rasawehr is not entitled to
qualified immunity.
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B.
Fourth Amendment—Seizure
The existence of probable cause to arrest is an absolute defense to any § 1983 claim
against a police officer for false arrest. Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 713–14 (7th
Cir. 2013) (citing Mustafa v. City of Chi., 442 F.3d 544, 547 (7th Cir. 2006)). “Probable cause to
justify an arrest exists if the totality of the facts and circumstances known to the officer at the
time of the arrest would warrant a reasonable, prudent person in believing that the arrestee had
committed, was committing, or was about to commit a crime.” Id. Although a jury usually
determines whether the arrest was supported by probable cause in a § 1983 claim, a court can
make that decision on summary judgment if the underlying facts are undisputed. Id. A law
enforcement officer will be immune to claims based on an arrest without probable cause unless
“it is obvious that no reasonably competent officer” would have believed that there was probable
cause to arrest. Malley v. Briggs, 475 U.S. 335, 341 (1986).
The Plaintiff does not dispute that possession of marijuana is a crime under Indiana law.
Rather, he maintains that there was no probable cause for his arrest because, “at least twice
[Officer Rasawehr] was informed that the marijuana for which he arrested the Plaintiff was not
the Plaintiff’s.” (Pl.’s Br. in Opp’n 21.) Probable cause to arrest “does not require the fine
resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard
demands.” Gerstein v. Pugh, 420 U.S. 103, 121 (1975); see also Mucha v. Vill. of Oak Brook,
650 F.3d 1053, 1057 (7th Cir. 2011) (probable cause “does not require the existence of criminal
activity to be more likely true than not true”). “Probable cause does not require certainty. It is a
fluid concept that relies on the common-sense judgment of the officers based on the totality of
the circumstances.” Hart v. Mannina, 798 F.3d 578, 587 (7th Cir. 2015) (internal quotation
marks and citation omitted). “[A] court looks at the conclusions that the arresting officer
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reasonably might have drawn from the information known to him rather than his subjective
reasons for making the arrest.” Holmes v. Hoffman Estates, 511 F.3d 673, 679 (7th Cir. 2007).
The Court assumes, for purposes of summary judgment, that after Officer Rasawehr
found the marijuana LaPeer told him it actually belonged to her. Even with this statement, there
was probable cause to believe that the marijuana belonged to the Plaintiff. It was located next to
the Plaintiff’s computer in a pill bottle with the Plaintiff’s name on it, along with numerous other
prescription medications. Nothing suggested that any of the items near the computer belonged to
anyone other than the Plaintiff. LaPeer’s statement would have been nothing more than a
contradiction of her earlier statement that the marijuana and paraphernalia belonged to the
Plaintiff. Given the totality of circumstances, that was not a dispute Officer Rasawehr was
required to resolve before he could find probable cause. Thus, Officer Rasawehr is entitled to
qualified immunity with respect to the Plaintiff’s § 1983 claim for false arrest.
C.
Fifth Amendment
The Plaintiff complains that he was not “read his Fifth Amendment rights or given a
Miranda warning informing him of his right against self-incrimination and to hire an attorney.”
(Pl.’s Br. in Opp’n 22, ECF No. 22.) He asserts that this is problematic because Officer
Rasawehr’s affidavit for probable cause contains the assertion that the Plaintiff admitted to
Officer Rasawehr that he was a war veteran and smoked marijuana to deal with his pain. The
Plaintiff asserts that he did not make any such admission with respect to marijuana.
According to the Plaintiff, he never made any incriminating statements. Thus, he was not
“compelled in [a] criminal case to be a witness against himself.” U.S. Const. amend. V; see also
Johnson v. Garza, 564 F. Supp. 2d 845, 853 (N.D. Ill. 2008) (dismissing Fifth Amendment claim
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where pleading did not allege that the plaintiff made an incriminating statement, only that police
officer claimed that he made such statements). Because the Plaintiff has not presented the Court
with evidence on which a reasonable jury could rely to find in his favor, see Goodman v. Nat’l
Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010), the Defendant is immune from suit and is
entitled to judgment as a matter of law on the Fifth Amendment claim.
CONCLUSION
For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART the
Motion for Summary Judgment [ECF No. 31], which included the arguments set forth in the
Defendants’ Motion to Strike [ECF No. 36]. Both Motions are termed as pending motions. By
separate order, the Court will schedule a trial on the remaining Fourth Amendment claim against
Officer Rasawehr.
SO ORDERED on March 28, 2019.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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