Snider v. Pekney et al
Filing
105
MEMORANDUM OPINION AND ORDER; GRANTING IN PART AND DENYING IN PART 83 MOTION for Summary Judgment filed by Daniel C Dulin, Todd Pekney, Indiana Department of Natural Resources, GRANTING IN PART AND DENYING IN PART 89 MOTION for Summary Judgment f iled by Kevin Hammond, Carroll County Commissioners, Joe Doe Randle, Jay Shimmel, Carroll County Sheriffs Department, Jason Dunning, GRANTING IN ALL RESPECTS 85 MOTION for Summary Judgment filed by Jim Doe Bishop, DENYING 81 MOTION for Partial Summary Judgment filed by Jesse Snider. Signed by Judge Jon E DeGuilio on 9/27/12. (mlc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
JESSE SNIDER,
Plaintiff
v.
TODD PEKNY, et al.
Defendant.
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CAUSE NO. 4:09-CV-037 JD
MEMORANDUM OPINION AND ORDER
While on a routine nighttime patrol in Carroll County, Indiana, Conservation Officer
Todd Pekny heard small-caliber rifle shots coming from what turned out to be Jesse Snider’s
property. Pekny suspected deer poaching, but his subsequent investigation uncovered a stockpile
of firearms, a stash of bomb-making materials, and a marijuana grow operation. The State
dismissed all criminal charges after a circuit court judge in Carroll County suppressed all of the
evidence uncovered during the search of Snider and his property, but Snider lost his job with the
postal service. Snider filed this lawsuit against everyone involved in the investigation, the
prosecution, and termination of his employment under 28 U.S.C. § 1983 and state law. See DE 1.
Various parties and claims have been dismissed from the case, which is now before the Court on
cross motions for summary judgment by Snider and the remaining defendants. See DE81, 83, 85,
89.
BACKGROUND
Officer Pekny was patrolling a county road south of Flora, Indiana, at 10:30 p.m. on
October 27, 2007, when he heard small-caliber rifle fire. See DE 83-2 at 23. He suspected deer
poaching, because it was after sunset and not yet firearm season (the season for hunting deer
with firearms), and there had been complaints of deer poaching in the area in the past—Pekny
himself had made an arrest for nighttime hunting in the same area during the previous deer
season 11 months before. See DE 84 at 3; DE 83-2 at 7. He drove around to pinpoint the location
of the shots. When he stopped again, he continued to hear shots to his west,1 and saw a group of
people standing around laughing on Snider’s property, and saw two people walk from the
residence toward a pole barn behind the residence. See DE 83-2 at 6. He drove a short way to the
west of Snider’s property and heard shots again, this time to his east. Id.
Although he had witnessed no crime on Snider’s property at that point (no state or local
laws prohibited firing a gun), and there had been no complaints that evening of deer poaching,
Pekny believed at the time that the shots were related to wild life poaching violations. See DE
83-2 at 6. He requested that additional officers be dispatched. See DE 82 at 4, ¶ 8; DE 84 at 4, ¶
6; DE 90 at 2, ¶ 4. Shortly before midnight Sergeant James Bishop from the Flora Police
Department and Deputy Jason Dunning from the Carroll County Sheriff’s Department arrived to
assist, and Pekny explained the situation. DE 83-2 at 6; DE 83-3 at 3. The three officers then
drove to Snider’s residence and parked their marked vehicles in his driveway. Just before pulling
up to the residence, Pekny saw two men walk into the garage. See DE 83-2 at 12. He did not see
any guns. Id.
With guns in the low ready position, the officers approached a garage in which they
could see two individuals, Snider and Mark Hokema. See DE 90 at 2, ¶ 5. They asked (or
ordered, depending on who is telling the story) the men to come out of the garage, and then
patted them down to check for concealed weapons. Pekny patted down Snider, and one of the
other officers handled Hokema. DE 83-2 at 13. Snider and Hokema provided identification upon
request. Id. Pekny asked Snider about the gunshots and what they had been doing. DE 82 at 5, ¶
1
Snider claims that Pekny did not hear shots during the time he watched the property, but this is
not supported by the record. In the portion of the deposition that Snider cites, Pekny states only
that he did not hear gunshots while on the property. See DE 83-2 at 13. Elsewhere, Pekny stated
that he heard gunshots to his west from his surveillance position. Id. at 6.
2
14. Snider denied that any shots were fired and explained that he and some friends had been
playing paintball in the pole barn—Snider claims he said there were 10 people, while Pekny
recalls that he said 12. Id.; DE 90 at 3, ¶ 7.
The details of the next half-hour or so are disputed. Snider claims that he and Hokema
were marched at gun point to the pole barn, where he asked the rest of his party to come out. See
DE 83-1 at 56. The officers lined everyone up sitting down with their hands behind their heads
and their ankles crossed, and patted them down for weapons. Id. While Officer Bishop watched
Snider and his guests, the other officers entered the pole barn and began to search inside. Id. at
57. Snider and the others were facing away from the pole barn and could not see what was going
on, but Snider could hear the officers going through his things and stood up to protest and told
them that they did not have his permission to go through his barn. Id. at 58. He saw the officers
look underneath his lawn mower and though several moving boxes. Id. at 62–63. Bishop then
handcuffed Snider and sat him back down. Id. at 58. While officers continued to go in and out of
the barn searching, they also gave breathalyzer tests to anyone who looked underage. Id. at 59.
At some point, most of Snider’s guests piled in a car and were allowed to leave. Id. at 59–60.
Hokema called a friend and left a few minutes later. Id. at 59. One other guest, Justin Erdie, was
detained by police at the residence, but Snider did not know what was taking place there and
only found out more details after the fact. Id.
The defendants tell a different story. After they had questioned Snider and Hokema, the
officers and Snider and Hokema walked over to the pole barn, about 60 yards away from the
garage. DE 83-2 at 13. Snider led them to a large (30 by 80 feet) barn, turned on the lights and
told them to go ahead and look in the barn for the others.
Id. at 13. Pekny stepped in and
looked around, but did not see anyone and stepped out. Id. at 14. He then walked around back of
3
the barn, while Bishop stayed with Snider. Id. At that point, six or seven people walked from
behind the barn toward Pekny. Id. Pekny told them to put their hands up to make sure they did
not have firearms and sent them to stand near Snider. Id. They were all frisked. Id. Pekny and
Deputy Dunning continued to look for other people because they still had not accounted for 12
individuals and were still trying to figure out what was going on. Id. While Bishop stayed with
Snider and the others, the other officers went back into the pole barn to see if anyone was hiding
in there. Id. Snider did not specifically consent to the second search of the barn, but neither did
he object, so Pekny assumed he had consent. Id. at 13. During the course of the second sweep of
the barn, Dunning discovered a wooden box in plain view that the officers recognized as a “dug
out” that normally contains a pipe and an area that contains marijuana. Id. at 15. Pekny believed
that the box was drug paraphernalia and that Snider had violated Indiana Code § 35-48-48.3(a)(1) by recklessly possessing drug paraphernalia. Id. at 18.
Around this time, the officers noticed that there was someone in the residence. Id. at 16.
Pekny and Sheriff Deputy Jay Schimmel, who had arrived after the officers had lined up the
individuals they had found on the property, approached a glass door in the rear of the house and
saw a rifle inside the house and spent firearms casings and shells on the back porch. Id. They
knocked, and an individual later identified as Justin Erdie came out. Id. Pekny patted down Erdie
and noticed what he believed to be two thick bundles of folded dollar bills; when Pekny asked
what it was, Erdie pulled both bundles from his pockets and stated that he had about $1,500. Id.
at 32 (probable cause affidavit). Erdie said his ID was in his van, so the officers went with him to
get it. Id. at 16. When they got there, Erdie threw a glass pipe into the back seat, which the
officers discovered contained marijuana when they recovered it. Id. Erdie was placed in
handcuffs.
4
At this point, Pekny believed that there may have been marijuana or other illegal drugs or
substances being stored or used in the residence, outbuildings, or vehicle. Id. at 32. He left to
obtain a search warrant at about 1:00 a.m. He returned with a warrant authorizing the search of
the pole barn and Erdie’s vehicle—though notably not the residence or any other
outbuildings—for marijuana or other illegal drugs and paraphernalia for using or selling
marijuana. Id. at 35 (search warrant). Pekny and Dunning searched the pole barn, and
discovered other contraband items, including a “Chinese throwing star” and an owl’s foot. See
DE 82 at 7, ¶ 25. Dunning, who had experience with explosive devices, also recognized
materials that could be used to produce explosive materials, arranged in what appeared to be the
stations of a bomb making factory. DE 83-4 at 10.
This new development caused Dunning to call for assistance from the Tippecanoe
County Bomb Squad. When the bomb squad arrived, Pekny showed them pictures of what had
been found. They told Pekny that they needed an ambulance and the fire department on standby,
as well as a medical helicopter, that they also needed to do a safety sweep of all the buildings on
the property, and that anyone in the house to the west needed to be evacuated. Id. Pekny
informed the bomb squad that the judge had specifically refused to authorize a search of the
residence, but was told that it was part of the bomb squad’s procedures to account for anyone
who might be in the area, in case something goes wrong. Id.
During the safety sweep, the bomb squad discovered an indoor marijuana growing
operation, and numerous firearms, unidentified powder, hand flares, and disassembled shotgun
shells. DE 83-2 at 37 (second probable cause affidavit). Pekny obtained a second search warrant
covering the house, outbuildings, and vehicles on the premises for illegal weapons or explosive
materials. Id. at 40 (second search warrant). He returned and executed the warrant.
5
Snider was charged with nine felonies and three misdemeanors. All charges were
dismissed after a Carroll County circuit judge found that the officers search had violated the
Fourth Amendment by seizing Snider without a warrant or reasonable suspicion of a crime and
by searching his property without a warrant, consent, or exigent circumstances. After an
independent investigation into his conduct, based in large part on information provided by state
law enforcement officials, the United States Postal Service suspended and then terminated
Snider.
Snider then brought this suit, which in addition to claims for Fourth Amendment
violations against those involved in the investigation on October 27–28, also brought claims
against his supervisors at the United States Postal Service related to his termination, against
local media for the coverage of the events, and even against one “Jane Doe” for refusing him
unemployment insurance. Judge Van Bokklen dismissed the claims against the postal service
employees on February 25 and May 12, 2010. See DE 45, 50.
On October 31, 2011, Snider filed a motion for summary judgment on his claims against
Officer Pekny. See DE 81. The same day the Indiana Department of Natural Resources, Officer
Todd Pekny, and Daniel Dulin2 (the "State Defendants") filed a motion for summary judgment
on all claims, see DE 83, as did Flora police officer James Bishop, see DE 85. The following
day, Jason Dunning, Jay Shimmel, Dennis Randle, and Kevin Hammond, the Carroll County
Sheriff's Department and the Commissioners of Carroll County (the "County Defendants") filed
their own motion for summary judgment. See DE 89.The motions are all ripe for adjudication.
2
The claims against Dulin were dismissed with prejudice on January 3, 2012, pursuant to a
voluntary stipulation under Federal Rule of Civil Procedure 41(a)(1).
6
DISCUSSION
I.
Standard of Review
On summary judgment, the burden is on the moving party to demonstrate 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). That means that the Court must construe all facts in the light most
favorable to the nonmoving party, making every legitimate inference and resolving every doubt
in its favor. Kerri v. Bd. Of Trustees of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006). 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 such material fact, and summary judgment is therefore inappropriate, when “the evidence
is such that a reasonable jury could return a verdict for the non-moving party.” Id. On the other
hand, 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 no genuine issue for trial. 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)). Summary judgment is not a tool to decide legitimately contested issues, and it may not
be granted unless no reasonable jury could decide in favor the nonmoving party. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
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, as well as draw all reasonable and
justifiable inferences in her favor. Anderson, 477 U.S. at 255; King v. Preferred Technical Grp.,
166 F.3d 887, 890 (7th Cir. 1999). But the non-moving party cannot simply rest on the
allegations or denials contained in its pleadings. It 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.
7
Catrett, 477 U.S. 317, 322-323 (1986); Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th
Cir. 2000).
The fact that the parties have cross-filed for summary judgment does not change the
standard of review. M.O. v. Indiana Dep’t of Educ., 635 F.Supp.2d 847, 850 (N.D. Ind. 2009).
Cross-motions are typically analyzed separately under the standards applicable to each.
McKinney v. Cadleway Properties, Inc., 548 F.3d 496, 504 n. 4 (7th Cir. 2008). Here, the Court
will consider the defendants’ motions first, taking any disputed facts in the light most favorable
to Snider. The defendants claim that they are entitled to summary judgment on all of Snider’s
claims. Because they are correct with respect to all the claims that Snider also seeks summary
judgment upon, the Court will not need to consider Snider’s motion.
II.
Analysis
After the dismissal of many of the defendants and claims, by either Court order or
stipulation, what remains is the core of the dispute. Did Officer Pekny, Deputy Dunning, and
Officer Bishop unlawfully invade Snider’s property, detain him without probable cause or
reasonable suspicion of wrongdoing while they unlawfully searched his property, and then arrest
him for something that did not amount to a crime? While some of the conduct of police officers
on Snider’s residence on October 27 and 28 is questionable—enough that a circuit judge in
Carroll County suppressed all the evidence—the Court ultimately concludes that the defendants
are entitled to summary judgment on all but one of Snider’s claims.
As noted above, the Court will consider the defendants’ motions for summary judgment
first. Because the defendant’s are entitled to summary judgment on each claim on which Snider
8
also seeks summary judgment,3 it will be unnecessary to consider Snider’s motion separately.
Further, because the claims and defenses of the various defendants overlap, the Court will
consider the defendants’ separate motions together on a claim-by-claim basis, distinguishing
between the defendants where appropriate.
A.
Federal Claims under § 1983
In Count 1 of his complaint Snider claims that the remaining defendants in this case
violated his federal constitutional right to be free from unlawful searches and seizure. Within
that single count, Snider identifies several discrete actions that allegedly violated his rights. For
purposes of analysis, the Court will consider the following claims separately, taking the facts in
the light most favorable to Snider: (1)Was the officers initial entry onto Snider’s property
unlawful? (2) Was the initial investigatory detention of Snider reasonable at its inception and in
its scope? (3) Did the officers unlawfully search Snider’s pole barn? (4) Did the officers have
probable cause to arrest Snider following the search of the pole barn? (5) Were the subsequently
obtained search warrants valid? Finally, the Court will address the claim that the officers
conspired with each other and others to violate constitutional rights under the Fourth, Fifth,
Sixth, and Fourteenth Amendments.
Because the federal claims lie under 18 U.S.C. § 1983, the Court’s analysis must focus
not merely on whether there was a constitutional violation, but also whether the defendants in
this case may be held liable in a civil action for any violation. Governmental officials are entitled
to immunity from civil liability under § 1983 for their actions, with the important qualifier that
the officials’ conduct must not violate any clearly established statutory or constitutional rights of
3
Snider does not appear to seek summary judgment regarding the search of the pole barn, the
lone claim that survives summary judgment, perhaps because there appears to be a material
dispute of fact regarding whether Snider consented to the search.
9
which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“Clearly established” means that the contours of the right are sufficiently clear that a reasonable
official would understand that his conduct violates the rights in question, and that in light of preexisting law, the unlawfulness of the act is apparent. Anderson v. Creighton, 483 U.S. 635, 640
(1987). That “preexisting law must dictate, that is, truly compel the conclusion for every likesituated, reasonable government agent that what he is doing violates federal law in the
circumstances.” Khuans v. School Dist. 110, 123 F.3d 1010, 1019-20 (7th Cir. 1997) (internal
marks omitted). It generally must come from controlling Supreme Court or Seventh Circuit
precedent unless an examination of all relevant case law assures the Court that the recognition of
the right by controlling precedent is merely a question of time. Denius v. Dunlap, 209 F.3d 944,
950 (7th Cir. 2000). It is only in “rare cases where the constitutional violation is patently
obvious, the plaintiff may not be required to present the court with any analogous cases, as
widespread compliance with a clearly apparent law may have prevented the issue from
previously being litigated.” Id. at 951. When qualified immunity applies, a defendant is not
merely entitled to a defense from liability; he is entitled not to stand trial.” Leaf v. Shelnutt, 400
F.3d 1070, 1080 (7th Cir. 2005).
There are two prongs to the qualified immunity analysis: one, whether, when considering
the facts in the light most favorable to the plaintiff, he suffered a violation of a constitutional
right at all; and, two, whether that right was clearly established, as described above. Saucier v.
Katz, 533 U.S. 194, 201 (2001). A Court may address either prong first, and need not reach the
first if the answer to the second dictates that qualified immunity applies. Pearson v. Callahan,
555 U.S. 223, 232 (2009). The plaintiff bears the burden of demonstrating that a right was
clearly established at the time the alleged violation occurred. Kiddy-Brown v. Blagojevich, 408
F.3d 346, 359 (7th Cir. 2005).
10
Finally, before proceeding to discuss the claims, the Court notes that the federal claims
under § 1983 in this case implicate only the individual law enforcement officers in their
individual capacities. This is because governmental entities may not be held liable under § 1983
under a theory of respondeat superior. Monell v. Dept. of Social Services of the City of New
York, 436 U.S. 658, 691 (1978). Governmental entities can thus be held liable only for injury
caused by conduct that represents an official policy, whether it be an express policy, an
unwritten practice or custom with the force of law, or the decision of an official with final
policymaking authority. See Bellings v. Madison Metro School Dist., 259 F.3d 807, 817 (7th Cir.
2001). In this case, the remaining claims involve the decisions and actions of individual law
enforcement officers at Snider’s property, and there is no evidence that an official policy by the
Carroll County Sheriff’s Department, the Carroll County Commissioners, or the Indiana
Department of Natural Resources caused any of the alleged injuries. Moreover, the Department
of Natural Resources is a state agency, and Congress has not abrogated the State’s sovereign
immunity with § 1983, so it may not be sued in federal court. See Will v. Michigan Department
of State Police, 491 U.S. 58 (1989). For these reasons, the Court will grant the defendants’
motions for summary judgment relative to the section 1983 claims against the entity defendants.
1.
The Officers Were Lawfully on Snider’s Property.
Snider contends that the officers violated his Fourth Amendment rights the moment they
entered onto his private property in the middle of the night. But law enforcement officers are
generally allowed to approach a residence to contact its owner using the route that a normal
visitor would take. See United States v. French, 291 F.3d 945, 951 (7th Cir. 2002). Driveways,
sidewalks, and walkways are generally not within the curtilage of the home, and thus not entitled
to Fourth Amendment protection. Id. at 953. Even if the driveway in this case were the exception
to that rule—and the Court sees no facts that would suggest that it is—Snider has pointed to no
11
precedent that demonstrates that it was clearly established that his driveway was curtilage,
despite the general rule to the contrary.
Snider does point to United States v. Jerez, 108 F.3d 684 (7th Cir. 1997), to suggest that
the officers’ approach to his property (and subsequent investigation, as discussed below) “in the
middle of the night are especially intrusive.” Id. at 690. But in that case, officers awakened a
suspect in the middle of the night by repeatedly banging on the door and window of his hotel
room and then used the groggy suspect’s purported consent to justify a search of the hotel room.
Id. That reasoning—which evoked a strident dissent—is not closely analogous to this case,
where the suspects were awake and engaged in various activities on the property.
2.
The Initial Encounter with Snider Was an Investigatory Detention Supported by
Reasonable Suspicion
This issue is the most difficult in the case. The Court has no doubt that Snider was seized
when he was ordered, at gun point, to come out of his open garage, and then frisked for weapons.
This was no longer, as Pekny and Dulin maintain, a “knock-and-talk” the moment that Snider
submitted to their show of authority. The other defendants more reasonably suggest, and the
Court agrees, that the initial seizure of Snider was an investigatory stop, and authorized under
the parameters of Terry v. Ohio, 392 U.S. 1, (1968), and its progeny.
Officers may detain an individual whom they reasonably suspect of wrongdoing long
enough to verify or dispel their suspicion. Terry, 392 U.S. at 21. The line between simple
investigative questioning and an investigative detention is not always clear, but in a case like this
where a suspect submits to an officer’s show of authority, it is clearly established law that the
officer has engaged in a Terry stop, subject to scrutiny under the Fourth Amendment. See
California v. Hodari D., 499 U.S. 621, 626 (1991); United States v. Johnson, 427 F.3d 1053,
1057 (7th Cir. 2005) (holding that a seizure occurred when defendant complied with officer’s
12
command, made at gunpoint, to stop backing away from the door). On the other hand, it is clear
that “police officers do not convert a Terry stop into a full custodial arrest just by drawing their
weapons or handcuffing the subject.” United States v. Shoals, 478 F.3d 850, 853 (7th Cir. 2007).
A Terry stop must be reasonable both at its inception and in its scope. United States v.
Ienco, 182 F.3d 517, 523 (7th Cir. 1999). It does not require the same probable cause that would
be necessary for a custodial arrest, but rather is permissible when the officers have “specific and
articulable facts, which, taken together with the rational inferences drawn from them, reasonably
warrant the intrusion.” United States v. Rivers, 1212 F.3d 1043, 1045 (7th Cir. 1997) (quoting
Terry, 392 U.S. at 21). This reasonable suspicion “requires more than a hunch but less than
probable cause and considerably less than preponderance of the evidence.” United States v.
Bullock, 632 F.3d 1004, 1012 (7th Cir. 2011). If officers have the requisite reasonable suspicion,
the degree of the intrusion must be “reasonably related to the known facts.” United States v.
Duguay, 93 F.3d 346, 350 (7th Cir. 1996).
The first step in the qualified immunity analysis is to determine whether the officers
violated Snider’s Fourth Amendment rights in the first place. Saucier, 533 U.S. at 201. While it
is no longer strictly necessary to apply the Saucier steps in order, in this case it makes sense: the
second prong of the analysis applies only to the federal claims, and Snider’s state law claim for
false imprisonment and false arrest also turn on the lawfulness of the initial encounter.
Whether Pekny reasonably suspected that Snider and his guests were engaged in
wrongdoing, or whether he was operating on nothing more than a hunch, is a critical question.
One court has already found that the officers had no reason to suspect Snider. As Pekny admits
in his deposition, there is nothing inherently illegal about discharging a firearm on ones own
property, even at night, and Pekny neither saw Snider or any of the others unlawfully take
wildlife nor discovered any deer carcases.
13
The Court finds, however, that Pekny, and by extension Dunning and Bishop, had
reasonable suspicion that Snider and his guests were engaged in criminal
wrongdoing—specifically deer poaching, or perhaps some reckless behavior with firearms. It is
true that for all Pekny knew Snider and his guests were merely engaged in target practice
(though the late hour would make that unusual) or dealing with nuisance animals damaging
Snider’s property (unlikely, given the number of gunshots). But the fact that there are alternative,
lawful, explanations for facts that raise an officer’s suspicion does not make that suspicion
unreasonable. In Terry itself, the suspects’ activities—standing on a street corner and looking in
shop windows— were not inherently criminal in and of themselves. Terry 392 U.S. at 22–23.
Moreover, a Terry stop obviously does not require Pekny to have actually witnessed criminal
wrongdoing—had he done so, he would have clearly had probable cause to arrest the suspect,
not merely detain him for investigative purposes.
A lone gunshot in a rural area not known for poaching might fall short of the threshold of
reasonable suspicion, but here there was considerably more. Pekny had more than just a hunch
that deer poaching was afoot. He had himself heard multiple small-caliber rifle shots for a
sustained period of time beginning around 10:30 at night. That alone is unusual and suspicious
generally. It became significantly more particularized in light of the fact that the shots occurred
just before firearm season in an area where there have been complaints of dear poaching in the
past and in the immediate vicinity of a confirmed case just the previous deer season. And while
there are plenty of innocuous explanations for a group of people standing around laughing in a
private field late at night, the same behavior in a location where numerous gunshots had been
heard over the course of an hour or more supports an inference that improper deer poaching may
have been underway. And at that point, it may have reasonably raised Pekny’s suspicion that the
individuals were recklessly discharging firearms and putting themselves and potentially others at
14
risk. Under the totality of the circumstances, including Pekny’s experience investigating deer
poaching in the past, the Court concludes that Pekny had reasonable suspicion to warrant more
intrusive investigation.
Alternatively, the Court would not conclude, at the second step of the Saucier analysis,
that it would have been obvious to any reasonable officer that a brief seizure to allow
investigation would violate Snider’s rights under the Fourth Amendment. Snider’s argument
against qualified immunity is that his “Fourth Amendment right to be free from unreasonable
searches, seizures, and arrest was clearly established at the time.” DE 98 at 12. At first glance, it
may seem odd to say that the officers could have acted “reasonably” if they did, in fact, lack a
reasonable suspicion of wrongdoing—can one really reasonably act unreasonably? The short
answer is that Courts have routinely applied qualified immunity to the Terry stop analysis. E.g.,
Jewett v. Anders, 521 F.3d 818, 823 (7th Cir. 2008) (holding that qualified immunity protects
those who make a reasonable error in determining whether there is a reasonable suspicion to
conduct a Terry stop). Moreover, the same conundrum exists anytime the Fourth Amendment is
implicated because the central inquiry (once the various interpretative doctrines are stripped
away) is whether a particular search or seizure was reasonable. The Supreme Court has
explained that this seeming contradiction is merely a consequence of the particular terminology
used in Fourth Amendment jurisprudence and that “reasonable” does not mean the same thing in
every context in which it is employed. See Anderson v. Creighton, 483 U.S. 635, 643–44 (“Had
an equally serviceable term, such as ‘undue’ searches and seizures been employed, what might
be termed the ‘reasonably unreasonable’ argument against application of Harlow to the Fourth
Amendment would not be available . . . .”). The Court went on to note:
We have frequently observed, and our many cases on the point amply
demonstrate, the difficulty of determining whether particular searches or seizures
comport with the Fourth Amendment. Law enforcement officers whose
15
judgments in making these difficult determinations are objectively legally
reasonable should no more be held personally liable in damages than should
officials making analogous determination in other areas of law.
Id. at 644 (internal citations omitted). The same reasoning applies to the Terry stop subset of
Fourth Amendment searches and seizures.
Beyond a general invocation of the Fourth Amendment standard, Snider provides no
closely analogous case law. He does cite Payton v. New York, 445 U.S. 573 (1980), for the
proposition that warrantless seizures within the home are unreasonable, absent exigent
circumstances. It is true that Snider was in his garage when the officers arrived. But the officers
did not enter the garage or the residence and instead asked Snider to come out. This does not
implicate Payton, which was concerned with protecting the threshold of the home against
intrusion without a warrant. See United States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir. 1991)
(“When the police assert from outside one’s home their authority to arrest a person, they have
not breached the person’s privacy interest in the home.”); see also Johnson, 427 F.3d at 1057
(finding a Terry stop when officers ordered an individual to stop backing away from an open
door at gunpoint).
Although it is Snider’s burden to come forward with closely analogous precedent, the
Court notes that its own research has uncovered no precedent that would inform a reasonable
officer that a Terry stop was unreasonable in this case. Most often cases involving gunshots
heard do support reasonable suspicion of a crime, though admittedly most of those cases involve
gun shots in significantly more densely populated areas, where discharge of a firearm would
itself likely be a crime. See, e.g., Shoals, 478 F.3d 850 (finding reasonable suspicion where
police were responding to report of gunshots in Fort Wayne, Indiana); United States v. Maher,
145 F.3d 907 (7th Cir. 2009) (reasonable suspicion when investigating gunshots in South Bend,
Indiana, where suspect holding his front pocket). Moreover, the few cases involving stops of
16
illegal hunting activity have all upheld the stop, though in those cases there were more
corroborating facts. See, e.g.,United States v. Weatherford, No. 2:11-CR-13, 2011 WL 5408441
(N.D. Ind., Nov. 8, 2011) (reasonable suspicion to suspect firearm hunting out of season based
on previous findings of recently spent rifle casings and a suspicious playhouse that seemed too
small for bow hunting); Cornelius v. City of Andalusia, 600 F. Supp. 2d 1209, 1224 (M.D. Ala.
2009) (“If an unfamiliar car enters and exits private hunting property in the evening hours, out of
full hunting season, and there is a flashlight shining out of the car window, that justifies an
objectively reasonable suspicion that someone is on that property to hunt deer at night, which is
illegal regardless of whether the hunter has a right to be on the land.”). But unlike the good faith
exception in the context of a motion to suppress, the defendants need not identify cases that
support their actions; it is enough that no precedent condemns it. The lack of any such precedent
means that Snider has failed to meet his burden unless this is one of the rare cases in which the
Fourth Amendment violation was obvious.
Having determined that the Terry stop was warranted at its inception, the Court must also
consider whether the manner in which the search was conducted was reasonable under the
circumstances. Again, Snider points the Court to no cases that would have clearly established
that any element of the investigation violated his constitutional right. Given the fact that Pekny
heard numerous gun shots coming from the property, it was not unreasonable to believe that
Snider or Hokema had a weapon—the lack of a visible rifle does not rule out a concealed
handgun—thus justifying a non-invasive pat-down search. See Rivers, 121 F.3d at 1045. Nor
was it clearly established that the officers could not demand identification—quite the opposite.
See United States v. Jackson, 377 F.3d 715, 717 (7th Cir. 2004) (holding that officers may insist
that suspect provide identification during a Terry stop). Moreover, Snider’s denial that anyone
had fired a gun other than a flare gun or paintball guns contradicted what Pekny heard with his
17
own ears, and thus would have raised, rather than dispelled, a reasonable officer’s suspicion that
someone was poaching deer on the property.
Taking the facts in the light most favorable to Snider, the officers continued to detain him
at gun point and prolonged the seizure while they sought the 10 other individuals that Snider
stated were on the property. In light of Snider’s unsatisfactory explanation for the gunshots, the
officers’ awareness (and Snider’s admission) that there were many others on the property, and
the fact that whatever gun or guns had been fired were unaccounted for, it was not unreasonable
for the officers to secure their presence which was potentially in jeopardy until they had
completed their investigation and identified the others present on the property, accounted for any
firearms, and either dispelled or confirmed their suspicions of criminal wrongdoing. Courts have
permitted far greater intrusions than a protective sweep of the open areas of a suspect’s property.
See Leaf, 400 F.3d at 1087 (“The underlying rationale for the protective sweep doctrine is the
principle that police officers should be able to ensure their safety when they lawfully enter a
private dwelling.” (citing United States v. Arch, 7 F.3d 1300, 1303 (7th Cir. 1993)). It may not
ultimately have been necessary for Officer Bishop to keep his gun pointed at Snider the entire
time—hindsight is 20/20 and the risks associated with doing otherwise have proven fatal—but as
the drawing of weapons is frequently approved during Terry stops, the Court cannot conclude
that Bishops conduct was unreasonable, much less that there was a clearly established moment at
which Bishop was required to holster his weapon.
Once the officers reached the pole barn and discovered six or seven other individuals, it
was not clearly unreasonable to check them for weapons and insist that they remain seated with
their hands in view while the search for Snider’s other guests continued (even if Snider had
clearly indicated there were 10 people, including himself and Hokema, there would still have
been one or two unaccounted for). The officers were outnumbered—especially Bishop against
18
eight or nine, once the other officers moved off to secure the scene while they continued their
search —and still did not know who had fired the guns and for what purpose. Finally, when
Snider abruptly stood up, despite Bishop’s previous order to the contrary, Bishop had some
justification for placing him in handcuffs given the number of people he was attempting to
control. His action was not unreasonable in this instance, and even if it were, it certainly would
not have been obvious to any reasonable officer that using handcuffs in such a situation would
transform a Terry stop into an unjustified custodial arrest, nor is there any closely analogous
case law compelling the conclusion that handcuffs were unreasonable. See United States v.
Askew, 403 F.3d 496, 507 (7th Cir. 2005) (“For better or for worse, the trend has led to the
permitting of the use of handcuffs, the placing of suspects in police cruisers, the drawing of
weapons and other measures of force more traditionally associated with arrest than with
investigatory detention.”).
Thus, the Court concludes that the officers’ conduct in this case comported with the
requirements of the Fourth Amendment. And even if their conduct crossed the constitutional
line, it was far from clearly established or obvious that they violated Snider’s federal rights, at
least up until the time when Officer Pekny believed that Snider was in possession of drug
paraphernalia and released the other individuals.
3.
Officer Pekny and Deputy Dunning are not Entitled to Qualified Immunity on the
Claim that They Unlawfully Searched the Pole Barn.
Next, the Court considers whether the officers are entitled to qualified immunity for their
search of the pole barn. Snider contends that Pekny and Dunning entered his pole barn twice:
first, briefly to see if any of Snider’s guests were in the barn and then again to conduct a more
thorough search. The defendants claim that even under Snider’s version of events, both entries
into the barn were protective sweeps justified by the need to secure the area and locate anyone
19
who may have been hiding in the open barn, from where they could have launched an attack on
the officers. Pekny also argues that the barn was not within the curtilage of Snider’s home and
therefore that the entry did not implicate the Fourth Amendment.
We may dispense with the second argument first: the barn was protected by the Fourth
Amendment, and this is clearly established under Seventh Circuit precedent. In Siebert v.
Severino, 256 F.3d 648 (7th Cir. 2001), the Seventh Circuit denied qualified immunity to an
officer who entered and searched a suspect’s barn, which was located about 60 feet from their
home and outside the curtilage. Id. at 653. The officer argued that the suspect did not have a
reasonable expectation of privacy in the barn and that even if he did, that expectation was not
clearly established at the time of the search. Id. at 654. The court disagreed on both counts. An
“enclosed structure is a typical location for a property owner to engage in private activities.
Curious friends and neighbors, much less a government agent with a mission, would be expected
to keep out.” Id. The court recognized that the Supreme Court had approved “peering into the
barn’s open front,” but refused to extend that permission to actual entry inside. Id. (quoting
United States v. Dunn, 480 U.S. 294, 300 (1987)). The court also found that the officer was not
entitled to qualified immunity:
This case seems to fit within the “obvious” scenario—a reasonable state actor
would know that he cannot enter a fenced-in, closed structure located within 60
feet of a person's house without a warrant or some exception to the warrant
requirement. But even if not reasonably obvious to Severino, a closely analogous
case indicates that his conduct was unconstitutional: his search took place in
1996, and less than three years earlier the Fourth Circuit held that citizens enjoy
an expectation of privacy in their barn. Therefore, Severino is not protected by
qualified immunity.
Id. at 655 (citing United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 2001)). Based on
controlling precedent, Snider had a reasonable expectation of privacy in his barn and a
reasonable state actor should have known that.
20
The next question is whether the search of the barn was permitted by some exception to
the warrant requirement. The defendants claim that this was a “protective sweep” necessary for
the officers’ protection. Whether such a protective sweep is permitted incident to a Terry stop is
an interesting question, but ultimately one the Court need not resolve in this case.4 Even
assuming that the first sweep was legally authorized (or at least not clearly condemned), Pekny
and Dunning did far more than sweep the barn the second time they went in: according to Snider,
he saw them looking under his riding lawnmower and peering through boxes—obviously places
that an individual with a gun could not hide. See Maryland v. Buie, 494 U.S. 325, 327 (1990)
(holding that a protective sweep is limited to “closets and other spaces immediately adjoining the
place of arrest from which an attack could be immediately launched”). Therefore, based on the
facts taken in the light most favorable to Snider, Pekny and Dunning violated a clearly
established right when they searched Snider’s barn without his consent, a warrant, or exigent
circumstances. Therefore, the defendants’ motions are denied with respect to the claim that
Pekny and Dunning searched Snider’s pole barn in violation of the Fourth Amendment.
As for Officer Bishop, however, he correctly points out that there is no evidence that he,
unlike Pekny and Dunning, was personally involved in the search of the pole barn and did not
enter the barn until after the first search warrant had been obtained. While his supervision of
Snider and his guests may have enabled the other officers to search without interference, there is
4
Protective sweeps of a residence incident to a custodial arrest are permitted by Maryland v.
Buie, and the Seventh Circuit has extended the doctrine to cases in which officers are already
lawfully in a residence based on exigent circumstances. Leaf, 400 F.3d at 1087. The Court is
aware of no holdings regarding a protective sweep of a residence based solely on an
investigative stop outside the residence, when officers had no other lawful reason to be in the
residence. But see Arch, 7 F.3d at 1303 (“In our view, however, the fact that Arch was arrested
in the motel lobby rather than his room counsels against a hasty resort to Buie to justify the
search [of the room].”).
21
no evidence that Bishop directed, countenanced, or even knew of the initial search of the pole
barn. As such, he cannot be held liable under § 1983. See Rascon v. Hardiman, 803 F.2d 269,
273 (7th Cir. 1986) (“In short, ‘[i]ndividual liability for damages under section 1983 is
predicated on personal responsibility.’” (quoting Schultz v. Baumgart, 738 F.2d 231, 238 (7th
Cir. 1984)). Therefore, Bishop’s motion for summary judgment will be granted relative to the
illegal search claim, while Pekny and Dunning’s motions will be denied.
4.
The Officers Had Probable Cause to Arrest Snider After the Search of the Pole
Barn.
Having considered the initial seizure of Snider and the search of his property and barn,
the Court turns to the claims dealing with the occurrences following from Officer Pekny’s
discovery of the wooden “dug out” box in Snider’s pole barn. First, the Court considers whether
the continued seizure of Snider amounted to a custodial arrest without probable cause in
violation of the Fourth Amendment.
To begin, the Court notes that the fact Pekny and Dunning are not entitled to qualified
immunity for the earlier warrantless search of the pole barn does not necessarily allow claims
against them based on subsequent actions that rely on the dug out box recovered during that
unlawful search. This is in part because the “fruit of the poisonous tree” doctrine, which in
criminal cases generally directs a court to exclude all evidence “tainted” by an illegal search or
seizure, does not apply to civil claims made under § 1983. While the Seventh Circuit has not
specifically decided this issue, other circuits and district courts in this circuit have agreed that
governmental officials are not liable for arrest or prosecution merely because it is premised on
22
evidence obtained in an unlawful search.5 This rule makes sense for several reasons. First, “[t]he
evil of an unreasonable search or seizure is that it invades privacy, not that it uncovers a crime,
which is no evil at all.” Townes v. City of New York, 176 F.3d 138, 148 (2nd Cir. 1999). Second,
“it would be odd if ‘the law breaker whose Fourth Amendment rights are violated recovers more
than an innocent victim of the same unlawful search an seizure.’” Ferrell v. Bieker, No.
1:03-CV-27-TS, 2006 WL 287173, at *7 (N.D. Ind. Feb. 3, 2006) (quoting Padilla v. Miller, 143
F. Supp. 2d 479, 492 (M.D. Pa. 2001)). Third, the exclusionary rule and civil liability for Fourth
Amendment violations provide sufficient deterrence for police misconduct, and extending
liability further to “tainted” actions, and any additional deterrence is unnecessary. Id. Moreover,
the Court notes that in light of the lack of Seventh Circuit precedent and the persuasive
precedent from other courts, the officers would be entitled to qualified immunity for “tainted”
actions because it was not clearly established that officers could not decide to arrest Snider based
on unlawfully obtained evidence.
Since they could rely on the item discovered in their search, the officers are entitled to
qualified immunity for the continued detention of Snider. Even assuming the state court judge is
correct and that Pekny was incorrect that the “dug out” box discovered in the barn was drug
5
See Townes v. City of New York, 176 F.3d 138, 149 (2nd Cir. 1999) (“The lack of probable
cause to stop and search does not vitiate the probable cause to arrest, because (among other
reasons) the fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant.”);
Hector v. Watt, 235 F.3d 154, 157 (3d Cir. 2000) ("We agree with Townes: 'Victims of
unreasonable searches or seizures . . . cannot be compensated for injuries that result from the
discovery of incriminating evidence and consequent criminal prosecution.'" (quoting Townes,
176 F.3d at 148.)); Cannon v. Christopher, No. 1:06-CV-267, 2007 WL 2609893, at *5 (N.D.
Ind. Sept. 6, 2007) (“While it is true that the officers lacked reasonable suspicion or other cause
to stop and detain Cannon’s vehicle (at least that is what the state court held), once they did, they
obtained sufficient evidence to properly arrest the plaintiffs with probable cause.”); Ferrell v.
Bieker, No. 1:03-CV-27-TS, 2006 WL 287173 (N.D. Ind. Feb. 3, 2006) (“[T]he weight of
authority found by the Court holds that the “fruit of the poison tree” doctrine, which requires the
exclusion of evidence found as a result of a violation of the Fourth Amendment in a criminal
trial, does not apply in a § 1983 action.”).
23
paraphernalia and provided probable cause for the arrest, Snider points to no precedent clearly
establishing at the time of the arrest that dug out boxes were not drug paraphernalia. Nor does
the Court find this result obvious from the face of the Indiana possession of paraphernalia
statute. While the statute does refer only to objects used primarily for introducing controlled
substances into the body, testing the strength, effectiveness, and purity of a controlled substance,
or enhancing the effect of a controlled substance, IC § 35-48-4-8.3(c), it is not beyond argument
that a box designed exclusively for the purpose of facilitating the use of marijuana does not fit
into any of those categories. Further, there is another, independent ground, that may sustain the
arrest: an objectively reasonable officer may have concluded that Snider committed the
additional crime of resisting a law enforcement officer under Indiana Code § 35-44-3-3(a)(3)
when he stood up despite the previous order to remain seated. See Row v. Holt, 864 N.E.2d 1011,
1017 (Ind. 2007); see also United States v. Williams, 495 F.3d 810, 818 (7th Cir. 2007) (holding
that an officer’s “subjective reason for making the arrest need not be the criminal offense as to
which the known facts provide probable cause”).
5.
No Evidence Supports Any Other Federal Claims
The defendants argue that they are entitled to summary judgment, for various reasons, on
any § 1983 claims arising from the execution of the two search warrants—the first for the pole
barn and Erdie’s car and the second for the house and other vehicles— as well as the conspiracy
claims. The Court agrees. Snider does not respond to these arguments at all, so it is difficult to
tell what his position is regarding these claims, but the Court will address them briefly. As
discussed above, the fact that the initial search of the pole barn may have been unlawful does not
“taint” subsequent lawful actions by law enforcement agents.
First, the officers did not violate any Fourth Amendment rights when they executed the
first search warrant on the pole barn. Officers are entitled to rely on a search warrant in good
24
faith unless they were dishonest or reckless in preparing their affidavit or could not have
harbored an objectively reasonable belief in the existence of probable cause.” United States v.
Leon, 468 U.S. 897, 926 (1984); see also Jones v. Wilhelm, 425 F.3d 455, 465 (7th Cir. 2005)
(citing Leon in the context of a § 1983 civil suit). The Seventh Circuit has explained that a belief
is reasonable unless:
(1) courts have clearly held that a materially similar affidavit previously failed to
establish probable cause under facts that were indistinguishable from those
presented in the case at hand; or (2) the affidavit is so plainly deficient that any
reasonably well-trained officer would have known that his affidavit failed to
establish probable cause and that he should not have applied for the warrant.
United States v. Koerth, 312 F.3d 862, 869 (7th Cir. 2002) (citations omitted). Here, Pekny was
not dishonest in preparing the warrant affidavit. While he indicated (perhaps mistakenly) that he
had found drug paraphernalia, he also described the precise item found, which permitted the
magistrate to consider the actual evidence, including the dug out box, the marijuana pipe, and the
money found on Erdie. Snider points to no cases invalidating a warrant based on a materially
similar affidavit. Further, reliance on the warrant was not unreasonable: the Court has already
noted that it was not clearly established law at the time that a dug out box was not itself criminal.
Moreover, illegal or not, the dug out box reasonably could have provided probable cause to
believe there might be marijuana inside or near it. It was not objectively unreasonable for the
officers to rely on the warrant.
Second, the officers did not violate any of Snider’s rights when he executed the second
search warrant on his residence. The warrant was based on the observation of marijuana plants,
explosives, and potentially illegal firearms. Even assuming, arguendo, that the “safety sweep” of
the residence was unlawful, the violation would not have tainted the search warrant or the
officers’ good faith reliance on it.
25
Finally, there is no evidence to support Snider’s claims that the defendants who remain in
this case conspired with prosecutors or postal service employees to violate any of Snider’s
constitutional rights. In fact, it is not clear that Snider has sufficiently alleged a conspiracy, much
less put forward enough evidence of one to survive summary judgment. To allege a conspiracy, a
plaintiff must:
(1) allege the existence of an agreement; (2) if the agreement is not overt, the
alleged acts must be sufficient to raise the inference of mutual understanding (i.e.,
the acts performed by the members of a conspiracy are unlikely to have been
undertaken without an agreement); and (3) a whiff of the alleged conspirators'
assent ... must be apparent in the complaint. Indeed, a conspiracy claim cannot
survive summary judgment if the allegations are vague, conclusionary and
include no overt acts reasonably related to the promotion of the alleged
conspiracy.
Amudsen v. Chicago Park District, 218 F.3d 712, 718 (7th Cir.2000) (internal citations and
marks omitted). Here, the allegations are conclusionary and Snider has pointed to no evidence in
the record that demonstrates an express or implied agreement between the defendants in this case
and any other individuals.
B.
State Law Claims
The defendants also seek summary judgment on Snider’s state law claims of trespass,
false imprisonment, false arrest, and malicious prosecution.
1.
Several of Snider’s Claims Are Unavailable.
Some of these claims may be addressed preliminarily based on the immunities and
requirements imposed by the Indiana Tort Claims Act. First, summary judgment is appropriate in
favor of all the individual officers because governmental employees are not individually liable
for acts or omissions unless their actions are “(1) criminal; (2) clearly outside the scope of the
employee’s employment; (3) malicious; (4) willful and wanton; or (5) calculated to benefit the
26
employee personally.” I.C. § 34-13-3-5(c). As there is no evidence that any of these exceptions
apply, the individual officers may not be held liable.6
Second, the Act provides total immunity to employees or entities from liability for losses
resulting from the “initiation of a judicial . . . proceeding,” I.C. § 34-13-3-3(6), or “[t]he
adoption and enforcement of or failure to adopt or enforce a law (including rules and
regulations), unless the act of enforcement constitutes false arrest or false imprisonment,”id. §
34-13-3-3(8). This means that Snider cannot recover under Indiana law for his claims of
malicious prosecution, see Livingston v. Consolidated City of Indianapolis, 398 N.E.2d 1302,
1305 (Ind. Ct. App. 1979), trespass and trespass to chattel, see Herbert v. Reynolds, No. 2:07CV-91-PPS, 2009 WL 3010510, at *10 (N.D. Ind., Sept. 15, 2009), and intentional infliction of
emotional distress, see City of Anderson v. Weatherford, 714 N.E.2d 181, 186 (Ind. Ct. App.
1999).
Third, Snider cannot recover against the Carroll County Board of Commissioners under a
theory of respondeat superior. Indiana courts have held that counties do not have control over
the acts of the sheriff, which is an office created by the Indiana Constitution with powers and
duties established by the Indiana Legislature, and that a county Board of Commissioners lacks
the necessary agency relationship to the sheriff or his deputies to give rise to respondeat superior
liability. See Delk v. Board of Commissioners of Delaware County, 503 N.E.2d 436, 440 (Ind.
Ct. App. 1987).
6
The Court also notes that even if Officer Bishop were not immune from liability under I.C. §
34-13-3-6, the claims against him would fail because Snider did not serve him proper notice as
required under Indiana Code § 34-14-3-8. See Bienz v. Bloom, 674 N.E.2d 998, 1004 (Ind. Ct.
App. 1996) (When a governmental employee is sued personally the plaintiff is required to
comply with the proper notice provisions of the Indiana Tort Claims Act).
27
2.
False Imprisonment and Arrest
This leaves only the claims for false imprisonment and false arrest against the Carroll
County Sheriff’s Department. “An arrest by a law enforcement officer without probable cause
can give rise to civil liability for false arrest under Indiana common law.”The defendants argue
that they cannot be held liable for false arrest because there can be no false arrest where an arrest
is supported by probable cause. Row v. Holt, 864 N.E.2d 1011, 1016 (Ind. 2007). Based on the
discussion above, the Court agrees that the officers are entitled to summary judgment on the
state law false arrest and false imprisonment claims.
It is unlikely that the officers had probable cause to arrest Snider when they first came on
his property, and even if they did it would not have authorized an arrest because deer poaching is
only a misdemeanor. See I.C. § 14-22-38-3; see also I.C. § 35-33-1-1(a)(4); Timmons v. State,
734 N.E.2d 1084, 1087 (Ind. Ct. App. 2000) (“[A] warrantless arrest is permissible if a
misdemeanor is committed in the officer’s presence or, if, at the time of the arrest, the officer has
probable cause to believe that the defendant has committed a felony.” (quoting Foster v. State,
633 N.e.2d 337, 346 (Ind. Ct. App. 1994)). Nevertheless, as the Court concluded above, the
officers did have reasonable suspicion sufficient to authorize a brief, minimally intrusive
investigative detention, and their subsequent actions were reasonable in light of the developing
circumstances. The initial detention was thus lawful and cannot support a claim for false
imprisonment. See Chestnet v. K-Mart Corp., 529 N.E.2d 131, 134 (Ind. Ct. App.1988) (“If a
detention is lawful, by definition, it cannot constitute false imprisonment.”); Alexander v. Doe,
IP 01-1674-C-K/T, 2003 WL 22244782 (S.D. Ind. Aug. 20, 2003) (“If a defendant has probable
cause to arrest the plaintiff or reasonable suspicion to make a Terry stop, or if the plaintiff cannot
show an absence of probable cause or reasonable suspicion, then the plaintiff's false
imprisonment claim fails.”).
28
And although the reasonable suspicion that authorized the investigative detention did not
authorize a formal, custodial arrest, the officers did at some point have probable cause to arrest
Snider, whether for possession of drug paraphernalia, resisting a law enforcement officer,
possession of a Chinese throwing star and an owl’s foot, or, eventually, possession of marijuana,
explosives, and illegal firearms. Snider’s state law false arrest claim therefore also fails for the
same reasons that his false arrest claim under § 1983 fails.
CONCLUSION
Because the officers had a reasonable suspicion that Snider and his guests were engaged
in unlawful deer hunting and perhaps other reckless and dangerous behavior potentially
associated with repeated gun shots fired at night, summary judgment in the defendants’ favor on
all claims, except for Snider’s federal claim that Officer Pekny and Deputy Dunning unlawfully
searched his pole barn, is warranted. Moreover, the governmental entities are not responsible for
any violations of their employees under a theory of respondeat superior. Accordingly, Defendant
James Bishop’s Motion for Summary Judgment [DE 85] is GRANTED in all respects. The State
Defendants’ Motion for Summary Judgment [DE 83] is GRANTED in part and DENIED in
part. Likewise, the County Defendants’ Motion for Summary Judgment [DE 89] is GRANTED
in part and DENIED in part. Finally, Plaintiff Jesse Snider’s Motion for Summary Judgment
[DE 81] is DENIED.
SO ORDERED.
ENTERED: September 27, 2012
/s/ JON E. DEGUILIO
Judge
United States District Court
29
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