Spake v. Elkhart City of et al

Filing 58

OPINION AND ORDER granting 39 Motion for Summary Judgment and the Clerk is instructed to terminate this case. Signed by Judge Jon E DeGuilio on 3/3/2015. (rmc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
SCOTT A. SPAKE,
Plaintiff,
v.
CITY OF ELKHART, et al.,
Defendants.

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Case No. 3:13-CV-722 JD

OPINION AND ORDER
This is a civil rights case in which the Plaintiff, Scott A. Spake, alleges that on December
14, 2011, he was unlawfully stopped for a traffic violation and arrested without probable cause.
Although officers at the scene assert that the car smelled of marijuana and Spake appeared under
the influence, Spake had not ingested any alcohol or drugs that evening and the toxicology report
from Spake’s blood draw showed that he was not under the influence of illegal substances,
including marijuana. Spake’s three charges for operating under the influence were ultimately
dropped and his license was reinstated after being suspended for about six months.
In his complaint, Spake asserts a host of state and federal claims, none of which are
separately denoted so as to identify the particular facts supporting each legal claim. (DE 1.) The
remaining defendants1 have now moved for summary judgment on his claims including the City
of Elkhart and Elkhart Police Department who contend that Spake suffered no constitutional
injury and did not meet the requirements of Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
(DE 40.) While Spake appears to have initially pled numerous claims, in responding to
defendants’ requested summary judgment Spake acknowledges that his claims are premised only
1

Individual officers Oldroyd, Wrathell, Hupp, and McHenry, along with Elkhart County and the
Elkhart County Sheriff’s Department, have been previously dismissed as defendants from this
case. (DE 34; DE 42.)

on two events. Specifically, plaintiff’s counsel has conceded that all of Spake’s claims “are
based on two separate events: 1) the stopping of his vehicle without probable cause, and 2) his
subsequent arrest for operating while intoxicated without probable cause.” (DE 56 at 6.)
Accordingly, should probable cause support the initial stop and subsequent arrest, then summary
judgment is appropriate in this case.
Because Officers Faigh, Miller, and Schroth had probable cause to stop Spake for a
traffic infraction, Officer Ray had probable cause to arrest Spake for driving while intoxicated,
and there is in turn no basis for liability under Monell, the defendants’ motion for summary
judgment is GRANTED as to all remaining parties.
I. FACTUAL BACKGROUND
As acknowledged by plaintiff, summary judgment rests on: (1) whether Officers Faigh
and Miller could have reasonably believed Spake failed to stop his vehicle before entering a
“sidewalk”, thereby giving them probable cause to notify Officer Schroth to stop Spake for
committing a traffic violation, see Ind. Code § 9-21-8-42 (requiring that a person who “drives a
vehicle within a business or residence district that is emerging from an alley, a driveway, or a
building shall stop the vehicle immediately before driving onto a sidewalk or into the sidewalk
area extending across an alleyway or a private driveway”); Ind. Code 9-13-2-167 (defining
“sidewalk” to mean “the part of a street between the curb lines, or the lateral lines of a roadway,
and the adjacent property lines intended for the use of pedestrians”); and (2) whether Corporal
Ray had probable cause to arrest Spake for driving under the influence of marijuana. As to the
first inquiry, Spake argues that upon exiting the gas station no sidewalk was evident, and
therefore the officers couldn’t have reasonably believed that he violated Indiana Code § 9-21-842. With respect to the second inquiry, Spake attempts to explain away some of the indicators of

2

his impairment in an attempt to undermine the officer’s basis for probable cause to support his
arrest. The Court now considers these issues in light of the facts viewed in Spake’s favor.
On the night of December 14, 2011, Spake and his fiancé Janet Medina stopped at the
Energy Oil gas station in Elkhart, Indiana between 9:00 p.m. and 9:20 p.m. (DE 40-1, Depo. of
Scott Spake, p. 16-18.) After paying for his gas, Spake exited the gas station through the gas
station’s driveway and turned right onto Main Street (heading south).2 (DE 40-1, p. 18-22, 86.)
Spake admits that he did not completely stop at any point when he exited the gas station and
turned onto Main Street. (DE 40-1, p. 22.) During his deposition, Spake identified various
photographs taken of the scene which accurately depicted the driveways to the Energy Oil gas
station (DE’s 56-2, 56-3, 56-4, 56-11, 56-12, 56-13, 56-14 (attached as Exhibit A to this order)),
and it was Spake’s opinion that neither driveway contained a sidewalk or signage that required
him to stop before exiting. (DE 40-1, p. 20-22, 55-56, 60-64.)
Because the area was having problems with crime, especially drug activity, Sergeant Karl
Miller3 and Corporal Chris Faigh4 were conducting surveillance of the Energy Oil gas station in
an unmarked vehicle approximately twenty-five to thirty yards away and in a lighted area. (DE
40-2, Depo. of Sergeant Miller, p. 15-17, 31-32, 34, 54-55; DE 40-4, Depo. of Corporal Faigh, p.
2

The parties do not contest that Spake’s exit from the gas station was via a private driveway for
purposes of Indiana Code § 9-21-8-42. See Ind. Code 9-13-2-135 (“‘Private driveway’ means a
way or place in private ownership that is used for vehicular travel by the owner and those having
express or implied permission from the owner but not by other persons.”).
3

At the time of the incident, Sergeant Miller had been employed with the Elkhart Police
Department for approximately eleven years, and his training consisted of those things learned at
the Indiana Law Enforcement Academy, as well as identifying the smell of marijuana. (DE 40-2,
p. 7-9, 53-54.)
4

Corporal Faigh has worked for the Elkhart Police Department since late 2006 after receiving
his training at the Indiana Law Enforcement Academy, and he also had training in and
experience with identifying the smell of marijuana. (DE 40-4, p. 8-9, 80.)
3

17-19, 25, 27-28, 50.) Sergeant Miller and Corporal Faigh observed Spake’s vehicle leave the
gas station and fail to stop upon crossing what they believed to be a sidewalk. (DE 40-2, p. 18,
21, 25-27, 35, 52-53, 61-62; DE 40-4, p. 17-20, 77.) During Sergeant Miller’s deposition, he
described the scene and indicated that the sidewalk visibly starts and ends on each side of the
driveways to the gas station, and thus, it necessarily continues through the driveways. (DE 40-2,
p. 26-27, 51-53, 55, 58; DE 40-3, Exhibit F.) Corporal Faigh also described the sidewalk during
his deposition as being one that “goes around the business” and he explained that a pedestrian
using the sidewalk would have to cross the driveways in order to continue on the sidewalk. (DE
40-4, p. 18, 39, 41; DE 40-5, Exhibit 5.) Miller and Faigh believed that cars coming out of the
parking lot where Spake drove were required to stop short of the sidewalk pursuant to Indiana
Code § 9-21-8-42. (DE 40-2, p. 52-53, 61-62; DE 40-4, p. 21, 37, 76-77; DE 56-16, Exhibit 10.)
But because Miller and Faigh were in an unmarked vehicle policy did not permit them to initiate
a traffic stop, so they radioed for a marked unit to stop Spake’s white Dodge Magnum for failing
to come to a complete stop before crossing a sidewalk area onto a roadway. (DE 40-2, p. 18-21,
27; DE 40-4, p. 20-22, 35, 52; DE 40-6, Depo. of Sergeant Schroth, p. 12-13, 15-16, 36.)
So after exiting the gas station, Spake drove for a few blocks and was pulled over by
Sergeant Brian Schroth5 who had been informed by Officers Faigh and Miller that there was
probable cause to initiate the stop. (DE 40-1, p. 22; DE 40-2, p. 21-23, 26-28; DE 40-6, p. 12-13,
15-16, 36.) Spake realized that he was being pulled over because he saw the lights in the mirror.
(DE 40-1, p. 22.) Corporal Schroth then approached Spake’s car, along with Sergeant Miller

5

At the time, Sergeant Schroth had been employed with the Elkhart Police Department for over
14 years, he was ranked a corporal, and he was patrolling the area in a marked squad car while
dressed in full uniform. (DE 40-6, p. 7-12.)
4

(who walked behind Schroth) and Corporal Faigh (who approached the passenger side). (DE 401, p. 23; DE 40-2, p. 29, 36-37; DE 40-4, p. 53, 55.)
Corporal Schroth testified during his deposition that upon making contact with Spake, he
recognized the odor of marijuana emitting from the driver’s side window—as did Sergeant
Miller—and so Schroth asked Spake to step out of the vehicle. (DE 40-2, p. 37-39, 54, 61; DE
40-4, p. 55-56; DE 40-6, p. 17-18, 23.) Corporal Faigh also smelled marijuana coming from the
vehicle, recalling that the passenger window was likely cracked open. (DE 40-4, p. 55-57.) In
fact, Spake heard the officers saying that they smelled marijuana in the car. (DE 40-2, p. 26.)
Spake cooperated by exiting the car and after an outer clothing pat down of Spake,
Corporal Schroth requested a drug recognition expert to come to the scene. (DE 40-6, p. 19-20.)
Once Corporal Jason Ray6 responded, he was informed by Corporal Schroth that Spake’s vehicle
had a strong odor of marijuana and Spake could possibly be under the influence of marijuana.
(DE 40-8, Depo. of Jason Ray, p. 20, 22.) Corporal Ray conducted further inquiry with Spake at
that time.7 Id.

6

Corporal Jason Ray has been an officer since early 2000, serving the Elkhart Police Department
since August 2006. (DE 40-8, p. 7-8.) He is a certified drug recognition examiner (DRE) and
breath test operator, and he is certified in the National Highway Traffic Safety Administration’s
standardized field sobriety testing through the Indiana School of Toxicology. (DE 40-8, p. 7-8,
10, 37, 42.) Corporal Ray became a certified DRE through an 11 day course with the
Indianapolis Metropolitan Police Department Academy, where he was taught the testing process
used to determine the type of drug a person is under the influence of. (Id., p. 11-12.) On
December 14, 2011, Corporal Ray was supervised by certified DRE Sergeant McHenry while
conducting the drug recognition examination because prior to receiving “full certification”
Corporal Ray had to be supervised by a certified DRE individual for his first 12 drug recognition
exams. (Id., p. 13.)

7

In the meantime, Sergeant Jack Oldroyd had also been called to the scene to have his K-9
conduct a sniff test for drugs on Spake’s vehicle. (DE 40-2, p. 39.) However, Spake has
dismissed Sergeant Oldroyd from the action with prejudice. (DE 42.) Ultimately, the officers did
not find any drugs (DE 40-2, p. 40), and Spake is not now pursuing a claim based on any
unlawful search.
5

Corporal Ray read Spake his Miranda rights and performed field sobriety tests at the
scene. (DE 40-1, p. 30; DE 40-8, p. 23-25, 27-29.) Spake’s sworn testimony established that
before Ray gave him these tests, he was asked if there was anything that would inhibit his
performance, but Spake offered no such information. (DE 40-1, p. 30.) Although Spake contends
that he failed to perform the tests properly because he was cold and wearing dress shoes, along
with the inclement weather (sleeting) and uneven road surface, he did not tell any officer that he
could not perform the tests because of these circumstances. (DE 40-1, p. 30-31, 25, 103.) Spake
figured the officers knew of the conditions because they were standing out there too. (DE 40-1,
p. 31.)
During his deposition, Spake admitted that he probably did not perform the majority of
the field sobriety tests properly—specifically, he was not able to perform the heel to toe test or
one foot test. (DE 40-1, p. 31-32, 96-97.) Although Spake’s girlfriend thought Spake performed
the tests correctly (DE 56-7, Depo. of Janet Medina, p. 24-25), Spake admitted that an officer
watching him perform the tests would have observed him failing the tests. (DE 40-1, p. 31-32.)
While Corporal Ray confirmed observing Spake’s wearing black loafers and obviously knew that
it was cold and dark, he still believed Spake had failed the walk/turn and the one leg stand tests.
(DE 40-8, p. 21, 23-24, 32.) At his deposition, Corporal Ray acknowledged that while a person
standing in the “cold, sleety, rainy, dark night, . . . for over 40 minutes” may be affected in
performing the sobriety tests, he did not believe that was the case with respect to Spake. (DE 408, p. 61-62.)
Although Spake passed the gaze nystagmus test, Corporal Ray explained that marijuana
does not cause nystagmus and so the test is not an indicator for the use of marijuana. (DE 40-8,
p. 67-68.) In addition, Corporal Ray smelt the odor of marijuana coming from Spake’s clothing

6

during the testing, and he observed that Spake’s eyes were watery with red conjunctiva, which
appeared to him to be signs of impairment. (DE 40-8, p. 22-25, 30, 34-35, 62.) Spake admitted
during his deposition that on the evening of his arrest, he could have had bloodshot (or red) and
watery eyes. (DE 40-1, p. 69, 93, 104-105.)
Despite that Spake and Medina denied his use of alcohol or illegal drugs, Corporal Ray
found that Spake showed signs of impairment based on the field sobriety testing and his
observations, and so he administered a portable breath test to rule out alcohol—which indicated
no presence of alcohol.8 (DE 40-1, p. 23-25; DE 40-8, p. 26-27, 30-31, 40, 45-50; DE 56-7, p.
22.) At this point, Spake was placed in handcuffs and taken to the police station where Corporal
Ray conducted more testing. (DE 40-1, p. 33-34, 73; DE 40-4, p. 66-67, 77-79; DE 40-8, p. 41.)
Spake testified in his deposition that no inappropriate force was used by any officer at the scene.
(DE 40-1, p. 32.)
At the station, Corporal Ray conducted further field sobriety testing by observing Spake
for twenty minutes and giving him a chemical breath test which ruled out alcohol impairment.
(DE 40-1, 33-34, 37; DE 40-8, p. 42-44; DE 40-9 DRE report.) He also conducted a pupil test
and tests similar to those performed at the scene.9 Id. Spake believes that he “did better” in
performing the field sobriety tests at the station, although he was still cold and wearing the same
shoes as he was at the scene. (DE 40-1, p. 34.) However, Spake admitted that he did not really
know if he passed the tests or not. (DE 40-1, p. 36.) Corporal Ray documented his observations
including the fact that Spake had reddened conjunctiva which he associated with signs of

8

Spake believed it was the officer who pulled him over who gave him the portable breath test
after he exited the car. (DE 40-1, p. 23-25.) But no one disputes the result.
9

The standardized field sobriety testing was conducted at the police department as part of the
drug recognition examination, which Sergeant McHenry supervised. (DE 40-8, p. 43-44.)
7

impairment rather than lesser symptoms caused by sleepiness or cold. (DE 40-8, 68-69; DE 40-9
DRE report.) Based upon the totality of all of the tests given and the impairment that he
observed at the scene, Corporal Ray reported that he believed Spake was under the influence of
cannabis and unable to operate a vehicle safely. (DE 40-8 and DE 56-6, p. 40, 44, 50, 53, 59-62,
73-74; DE 40-9 DRE report; DE 56-10.)
Spake was then taken by Corporal Schroth to the hospital for a blood draw at Corporal
Ray’s request (in order to complete the final step of the DRE process), to which Spake
consented. (DE 40-1, p. 36, l. 24-p. 37, l. 17; DE 40-6, p. 27-29; DE 40-8, p. 50-53.) Spake was
ultimately booked in jail for one day and charged with operating under the influence. (DE 40-1,
p. 9, 37-38, 42, 77.)
According to Corporal Ray, it appears that the Indiana Department of Toxicology did not
receive the kit until May 7, 2012, and the uncontested May 24 test results (which included testing
for marijuana) were negative. (DE 40-8, p. 55; DE 56-9.) Spake’s charges were dismissed. (DE
40-1, p. 9, 37-38, 42, 77.) And although Sergeant Miller believed that he had written Spake a
citation for his traffic infraction (DE 40-2, p. 33, 44, 46), Spake indicated that he never received
a ticket. (DE 56-1, p. 43, 79, 92-93.)
II. STANDARD OF REVIEW
On summary judgment, the moving party bears the burden of demonstrating 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 “material” fact is one identified by the substantive law as
affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
“genuine issue” exists with respect to any material fact when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. Where a factual record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is
8

no genuine issue for trial, and summary judgment should be granted. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391
U.S. 253, 289 (1968)).
In determining whether a genuine issue of material fact exists, this Court must construe
all facts in the light most favorable to the non-moving party and draw all reasonable and
justifiable inferences in that party’s favor. Kerri v. Bd. of Trustees of Purdue Univ., 458 F.3d
620, 628 (7th Cir. 2006); King v. Preferred Technical Grp., 166 F.3d 887, 890 (7th Cir. 1999).
However, the non-moving party cannot simply rest on the allegations or denials contained in its
pleadings, but must present sufficient evidence to show the existence of each element of its case
on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);
Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).
III. DISCUSSION
Spake made claims against Officers Faigh, Miller, Schroth, and Ray in both their
individual and official capacities, and alleges that the City of Elkhart and Elkhart Police
Department are responsible for their conduct. The Court addresses the individual and official
capacity claims against the officers first and then addresses the Monell claims.
Spake’s federal claims arise under 42 U.S.C. § 1983, which provides a cause of action
against any person who, while acting under color of state law, deprives an individual “of any
rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983; Fleming v.
Livingston Cnty., Ill., 674 F.3d 874, 878 (7th Cir. 2012). No one contests that the defendants
were acting under color of state law, rather the contested issue is whether the officers deprived
Spake of his rights under the Fourth Amendment to be free from “unreasonable searches and
seizures,” U.S. Const. amend. IV, when they stopped his car and arrested him.

9

Spake also argues that the same facts support a claim for illegal seizure under Article I, §
11 of the Indiana Constitution. Though Indiana analyzes its search and seizure provision in a way
that is distinct from the Fourth Amendment analysis, see Linke v. Northwestern School Corp.,
763 N.E.2d 972, 977 (Ind. 2002), both parties rely on a Fourth Amendment probable cause
determination. Moreover, Spake seeks only monetary damages in this lawsuit (DE 1, ¶¶ 1, 40,
46, 52, 64), and the Indiana Supreme Court has recognized that “[t]here is no explicit language in
the Indiana Constitution providing any specific remedy for violations of constitutional rights.”
Cantrell v. Morris, 849 N.E.2d 488, 499 (Ind. 2006); accord City of Indianapolis v. Cox, 20
N.E.3d 201, 212 (Ind. Ct. App. 2014) (“[N]o Indiana court has explicitly recognized a private
right of action for monetary damages under the Indiana Constitution.”) (quoting Smith v. Ind.
Dep't. of Corr., 871 N.E.2d 975, 985 (Ind. Ct. App. 2007)). Thus, the Court's analysis here
focuses on the Fourth Amendment, and the parties agree that the existence of probable cause10
would bar any of Spake’s claims.
A.

Probable Cause for the Stop
While the Fourth Amendment prohibits unreasonable searches and seizures, the existence

of probable cause renders both traffic stops and resulting warrantless arrests permissible. Jones v.
City of Elkhart, Ind., 737 F.3d 1107, 1114 (7th Cir. 2013). “Probable cause exists if at the time
of the arrest, the facts and circumstances within the officer’s knowledge are sufficient to warrant
a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an offense.” Id. (quoting Thayer v.
Chiczewski, 705 F.3d 237, 246 (7th Cir. 2012)). “Probable cause . . . ‘is a fluid concept that relies
10

While it is true that only reasonable suspicion was necessary to initially stop Spake, see Huff v.
Reichert, 744 F.3d 999, 1004 (7th Cir. 2014); United States v. Bullock, 632 F.3d 1004, 1012 (7th
Cir. 2011), defendants waived such a contention by arguing only that probable cause existed for
the traffic stop and resulting arrest. (DE 40, p. 15-19.)
10

on the common-sense judgment of the officers based on the totality of the circumstances.’”
Jones, 737 F.3d at 1114; Thayer v. Chiczewski, 705 F.3d 237, 246 (quoting United States v.
Reed, 443 F.3d 600, 603 (7th Cir. 2006)). We objectively “step into the shoes of a reasonable
person in the position of the officer,” and consider the facts known to the officer at the time.
Jones, 737 F.3d at 1114 (quoting Thayer, 705 F.3d at 246). We do not consider the subjective
motivations of the officer. Id. (citing Thayer, 705 F.3d at 246). When a police officer reasonably
believes that a driver has committed even a minor traffic offense, probable cause supports the
stop. Id. (citing United States v. Garcia–Garcia, 633 F.3d at 612; Whren v. United States, 517
U.S. 806, 819 (1996)).
To determine whether probable cause existed, the Court considers the law allegedly
violated. See e.g., Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 761 (7th Cir. 2006). Here, the
defendants claim that Spake was stopped for violating Indiana Code § 9-21-8-42 requiring that a
person who “drives a vehicle within a business or residence district that is emerging from an
alley, a driveway, or a building shall stop the vehicle immediately before driving onto a sidewalk
or into the sidewalk area extending across an alleyway or a private driveway.” In turn, Indiana
Code § 9-13-2-167 defines “sidewalk” to mean “the part of a street between the curb lines, or the
lateral lines of a roadway, and the adjacent property lines intended for the use of pedestrians.”
Spake has provided various photographs which accurately depict the area he drove
through to get from the gas station to Main Street and have been attached to this order as Exhibit
A. (DE’s 56-2, 56-3, 56-4, 56-11, 56-12, 56-13, 56-14.) Based on these photographs, Spake
argues that it is a disputed question of material fact whether the area he drove through constitutes
a sidewalk. Specifically, Spake asserts that while “[t]he sidewalk and sidewalk area are clearly
delineated by the curb cuts surrounding the ingress and egress of the gas station[,] [n]o

11

reasonable person could identify a sidewalk or sidewalk area within the driveway of the gas
station.” (DE 56 at 7.) As a result, Spake contends that no reasonable officer could believe he
had violated Indiana Code § 9-21-8-42 when he exited the gas station. Id.
The Court disagrees. It is uncontested that the sidewalk at issue continues on both the
south and north sides of each driveway and along Main Street. And merely because the sidewalk
is interceded by the gas station’s paved driveways, Spake is unable to dispute the fact that this is
an area which remains between the lateral lines of Main Street and the adjacent property lines of
the Energy Oil gas station and is intended for the safe use by pedestrians moving alongside Main
Street, consistent with Indiana Code § 9-13-2-167. See e.g., State v. Scharff, 284 P.3d 447 (N.M.
Ct. App. 2012) (noting that the general purpose behind New Mexico’s code provision requiring
(in relevant part) a vehicle to stop before emerging from a driveway onto a sidewalk was to
protect pedestrians from vehicles emerging from ingress and egress points). In fact, the
photographs Spake relies on, as attached to this order, indisputably show that if pedestrians were
using the clearly demarcated sidewalk extending along Main Street and immediately north or
south of the gas station’s driveways, then pedestrians would necessarily travel directly across the
driveways thereby remaining on the sidewalk. Thus, the gas station’s driveways contained
sidewalk areas, and this is exactly what is meant by a sidewalk that “extend[s] across . . . a
private driveway,” as stated in Indiana Code § 9-21-8-42.
More importantly, the defendants have established that for the purpose of summary
judgment there is no factual dispute that would call into question Sergeant Miller and Corporal
Faigh’s reasonable belief that the driveway contained a sidewalk and Spake had violated Indiana
Code § 9-21-8-42. See United States v. Muriel, 418 F.3d 720, 724 (7th Cir. 2005) (courts “need
only inquire whether the officer had probable cause to believe that a traffic violation occurred, . .

12

. not whether [the driver] actually was tailgating”) (internal citation omitted); United States v.
Cashman, 216 F.3d 582, 586–87 (7th Cir. 2000) (officer’s estimate of the fact undergirding a
violation does not need to be “perfectly accurate;” pertinent question is whether it was
reasonable for the officer to believe that a violation had occurred). Here, Spake admittedly did
not stop upon exiting the gas station, and Spake’s failure to stop was actually observed by both
Sergeant Miller and Corporal Faigh who were conducting surveillance on that location.
Moreover, the photographs demonstrate that it was reasonable for the officers to perceive that the
sidewalk, which ran alongside Main Street, extended through the private driveways of the gas
station, thereby reasonably intimating that Spake was required to stop his vehicle prior to
entering the sidewalk area. Accordingly, Sergeant Miller and Corporal Faigh had probable cause
to effectuate a stop based on their reasonable belief that Spake had committed a traffic violation.
Whren, 517 U.S. at 810; Muriel, 418 F.3d at 724 (“Probable cause exists when ‘the
circumstances confronting a police officer support the reasonable belief that a driver has
committed even a minor traffic offense.’”) (quoting United States v. Cashman, 216 F.3d 582,
586 (7th Cir. 2000)); see also Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013) (“It is
unequivocal under our jurisprudence that even a minor traffic violation is sufficient to give an
officer probable cause to stop the driver of a vehicle.”). And Spake does not dispute the fact that
Miller and Faigh’s observations were then communicated to Corporal Schroth,11 who as a
consequence of that communication, had probable cause to pull Spake’s vehicle over. See United
States v. Harris, 585 F.3d 394, 401 (7th Cir. 2009) (reasoning that the content of this
communication at least included information about the Ford Excursion and the need to conduct a

11

In fact, Spake’s complaint specifically alleged that: “Officer Schroth executed a traffic stop on
Spake based upon information that Mr. Spake did not stop prior to a sidewalk.” (DE 1, ¶ 15.)
13

traffic stop, which alone would be enough to justify application of the collective knowledge
doctrine, as the officers were acting based on another officer’s request for a traffic stop rather
than their own suspicions).
Because even viewing the record in Spake’s favor supports the conclusion that the
defendants had probable cause to stop Spake for committing a traffic violation, summary
judgment shall be granted on this ground.
B.

Probable Cause for the Arrest
Spake’s next contention is that even “[a]ssuming the stop of Spake was legal, Defendant

Ray violated Spake’s rights by arresting him without probable cause.” (Tr. 56.)
An arrest is reasonable if it is based on probable cause that the individual has committed
an offense, so to succeed on this claim, Spake must show a question of fact with respect to
whether the officers had probable cause for his arrest. Williams v. Rodriguez, 509 F.3d 392, 398
(7th Cir. 2007) (“In order for [the plaintiff] to prevail on his § 1983 false arrest claim, he must
show that probable cause for his arrest was lacking.”); Kelley v. Myler, 149 F.3d 641, 646 (7th
Cir. 1998) (“An essential predicate to any § 1983 claim for unlawful arrest is the absence of
probable cause.”).
However, once officers had probable cause to conduct the traffic stop of Spake for
committing a traffic violation, they could then arrest Spake without violating his Fourth
Amendment rights. See Jones v. City of Elkhart, Ind., 737 F.3d 1107, 1115 (7th Cir. 2013) (citing
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001); United States v. Childs, 277 F.3d 947,
953 (7th Cir. 2002) (“A person arrested for an offense punishable only by a fine typically is
given a citation (a ‘ticket’) and released, but Atwater holds that the Constitution allows the police
to place the person in custody and take him to be booked.”)); Ray v. City of Chicago, 629 F.3d
660, 663 (7th Cir. 2011) (noting that so long as a police officer has probable cause to believe that
14

a person has committed a crime (in this case, the failure to operate a vehicle without the
headlights being turned on), then it is not constitutionally relevant whether the person was
arrested on charges (here, the possession of a controlled substance) for which there was no
probable cause.). Thus, the Court need not address whether the officers had probable cause to
arrest Spake for operating while intoxicated.
However, the Court notes that the undisputed facts in the record clearly show that despite
Spake’s contention to the contrary, Corporal Ray had a reasonable basis to conclude that Spake
was under the influence of marijuana, and thus had probable cause to arrest Spake for operating
while intoxicated.
Spake argues that the totality of the circumstances fail to support a finding of probable
cause, because the “only basis from which Defendant Ray could justify his probable cause for
arrest for Operating while Intoxicated was on Spake’s alleged bloodshot eyes, his alleged failure
of the field sobriety test, and the alleged smell of marijuana of his clothing.” (DE 56 at 9.) While
Spake characterizes these facts as being “alleged,” he has not provided evidence rebutting them.
Rather, Spake believes that the other circumstances—such as, his being cooperative, passing
some field sobriety tests, denying use of marijuana, as well as there being no physical evidence
of marijuana use (DE 56 at 8-9)—reveal that he was not intoxicated. But Spake offers no case
law to support his position that the undisputed facts are somehow insufficient to establish
probable cause under the circumstances of this case.
Again, Spake does not contest the fact that Corporal Ray smelled marijuana coming from
Spake’s clothing. This evidence was consistent with Corporal Ray’s knowledge that other
officers had reported smelling a strong odor of marijuana coming from Spake’s car. And
although Spake denied having ingested any marijuana or other controlled substances, he

15

admitted that on the evening of his arrest he could have had bloodshot and watery eyes (a
potential indicator to police of the use of marijuana) and that an officer could have reasonably
concluded he failed the sobriety tests at the scene. Spake never told Corporal Ray that he was
having trouble performing the sobriety tests because of his shoes and the weather—things that
Spake presumed Corporal Ray was aware of given their obviousness. In fact, Corporal Ray
acknowledged that he had accounted for the circumstances under which Spake performed the
sobriety tests, and he still believed Spake showed signs of being under the influence of
marijuana. The mere fact that Spake passed some sobriety field tests, such as the gaze nystagmus
test, does not negate probable cause, at least in this case. See e.g., Seiser v. City of Chicago, 762
F.3d 647, 656 (7th Cir. 2014) (the fact that an individual is able to complete one or more field
sobriety tests successfully does not negate probable cause when other circumstances give rise to
a reasonable belief that the individual is intoxicated). Additionally, even after Spake was taken
to the jail for close observation and completion of the drug recognition examination, Spake
continued to present with signs of impairment, such as having reddened conjunctiva, being off
step, repeatedly missing the tip of his nose, and swaying, none of which are contested. All of this
is to say that Spake is unable to rebut that Corporal Ray had probable cause to arrest Spake for
driving under the influence of marijuana. See, e.g., Gutierrez v. Kermon, 722 F.3d 1003, 1011–
12 (7th Cir. 2013) (applying Indiana law and noting “common indicia of intoxication” including
“watery or bloodshot eyes,” “the odor of alcohol on the breath,” “unsteady balance,” and “failure
of field sobriety tests”). And although Spake’s blood test results came back negative and his
criminal charges were ultimately dismissed, these facts were not within the officer’s knowledge
at the time of the arrest and therefore do not call into question the probable cause determination.
See Ochana v. Flores, 347 F.3d 266, 272 (7th Cir. 2003).

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Because the officers had probable cause for both the traffic stop and the arrest (and Spake
acknowledges that his claims are premised on the lack of probable cause for these two events),
Spake’s claims are barred. There is therefore no remaining claim holding the officers liable in
their official or individual capacities. And because the record leaves no doubt that there was
probable cause for the traffic stop and the arrest, it is well established that without a violation of
constitutional rights the City and its police department12 cannot be liable under § 1983. Jones,
737 F.3d at 1113.
IV. CONCLUSION
In this lawsuit, Spake sought monetary damages based on his complaint’s extensive
perfunctory list of state and federal claims. But because the two events upon which Spake’s
claims rest—the traffic stop and his arrest for operating while intoxicated—were supported by
the officers’ probable cause, summary judgment must be granted in favor of all of the remaining
defendants on all of Spake’s claims. Accordingly, the defendants’ motion for summary
judgment is GRANTED and the Clerk is instructed to terminate this case.
SO ORDERED.
ENTERED: March 3, 2015
/s/ JON E. DEGUILIO
Judge
United States District Court

12

It isn’t likely that the police department even had the capacity to sue or be sued under the
Indiana statutory scheme. See Sow v. Fortville Police Dep’t, 636 F.3d 293, 300 (7th Cir. 2011)
(citations omitted).
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EXHIBIT A