GOLDBERG v. JUNION et al
Filing
55
ORDER granting in part Defendants' 35 Motion for Partial Summary Judgment. The motion is granted as to Plaintiff's false arrest and illegal search claims. The motion is denied as to Plaintiff's illegal entry claim. Signed by Judge Richard L. Young on 9/23/2016. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PAUL GOLDBERG,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
KEVIN JUNION and BILLY GLENN,
Defendants.
1:14-cv-01557-RLY-MPB
ENTRY ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff, Paul Goldberg, was at his home in Indianapolis on July 25, 2013 when
two men in civilian clothes knocked on his front door. Plaintiff partially opened his door
and stood in the doorway to speak with the men. Defendants, Detectives Kevin Junior 1
and Billy Glenn, explained that they were real estate investors interested in purchasing
his home. When Plaintiff said his home was not for sale, Defendants revealed that they
were actually police officers who were investigating him based upon probable cause that
he was growing marijuana in his home. The officers asked to come inside the home so as
to look around, but Plaintiff refused, noting that they could come in once they obtained a
search warrant. Plaintiff stepped out of the doorway (back into the interior of the home)
and attempted to shut his door. But the door would not shut; one of the officers had put
his foot in the doorway. Defendants then forced the door open, entered the home, and
arrested Plaintiff.
1
Detective Junior is misnamed in the case caption as Kevin Junion.
1
Plaintiff subsequently filed this suit, alleging false arrest, illegal search, illegal
entry, and excessive force. Defendants now move for summary judgment on the false
arrest, illegal search, and illegal entry claims, arguing that they are entitled to qualified
immunity. Plaintiff does not oppose summary judgment on the illegal search claim.
Additionally, the court finds that because Defendants had at least arguable probable cause
to arrest Plaintiff, they are entitled to qualified immunity for the false arrest claim.
However, they are not entitled to qualified immunity for the illegal entry claim.
Accordingly, the court GRANTS IN PART Defendants’ motion.
I. Facts 2
On July 23, 2013, an anonymous citizen e-mailed a tip to Crime Stoppers of
Central Indiana, providing information about a marijuana growing and dealing operation
at the residential duplex located at 3323 and 3321 Boulevard Place in Indianapolis,
Indiana. (Filing No. 36-2, Crime Stoppers Tip). The tip was unusual in that it was “a lot
more detailed” than most tips. (Filing No. 36-3, Deposition of Detective Kevin Junior
15:4-9). The tipster wrote the duplex was owned by a Caucasian male named Paul
Goldberg who was 46 years old, 6’ 4” tall, weighed 250 pounds, had a shaved or bald
head, and drove a white, Chevrolet full sized cargo van. (Crime Stoppers Tip).
According to the tip, Plaintiff: (1) had at least 100 live marijuana plants growing in the
2
Defendants initially state that they accept Plaintiff’s version of the facts for purposes of
summary judgment in their opening brief, (see Filing No. 37 at 1 n.1; S.D. Ind. L.R. 56-1(g)), but
then go on to include facts that Plaintiff vigorously disputes (e.g., that the officers told him not to
go back inside his home). The court holds Defendants to their stipulation and does not consider
any facts in their brief that are disputed by Plaintiff.
2
basements of both sides of the duplex, (2) sold the bulk of his marijuana to a person
named Jacob Sacks, (3) generally had customers pick up their marijuana at his house, but
would sometimes deliver, (4) had a digital scale, (5) sold anything from a few grams to a
pound or two of marijuana, and (6) had a knife but no guns. (Id.). The tip also explained
that the scent of marijuana permeated from the house and was particularly noticeable at
the back window of the unit at 3321. (Id.).
The tip was forwarded to Narcotics Detective Kevin Junior with the Indianapolis
Metropolitan Police Department (“IMPD”) for investigation. (Junior Dep. 11:21-12:20).
As part of his investigation, Detective Junior checked the Marion County Assessor’s
website to see who was listed as the owner of the property at 3323 and 3321 Boulevard
Place, and it showed Plaintiff’s name. (Id. 18:10-14; Filing No. 36-4, Probable Cause
Affidavit (“PC Aff.”) at 1). Detective Junior also obtained the photograph associated
with Plaintiff’s driver’s license from the Indiana Department of Motor Vehicles, so that
he would recognize Plaintiff if he saw him. (Junior Dep. 28:3-7).
On either July 23 or July 24, 2013, Detective Junior drove to the duplex to conduct
surveillance. (Id. 15:11-16:7, 20:25-21:3). While there are two separate units, both units
share a common porch. (Id. 25:21-22). Detective Junior observed that the south unit
appeared to be vacant, but that the north unit appeared to be lived in. (PC Aff. at 1).
Based on his training and experience as a narcotics detective, he knew that it is common
for marijuana growers to use an empty residence for their grow operations because
marijuana grow operations use a lot of electricity, and high electricity use, as evidenced
by a high electric utility bill, can tip off law enforcement. (Id. at 2). Consequently, it
3
appeared to him that the south unit could be being used in connection with a marijuana
grow operation. (Id.). While conducting surveillance, he saw a white van leave the
residence. (Junior Dep. 16:10). He also talked to a neighbor who confirmed that the man
who owned the duplex was named “Paul.” (Id. 17:11-25). Detective Junior then walked
down a common walkway on the south side of Plaintiff’s property and smelled raw
marijuana. (Id. 19:5-23).
On July 25, 2013, Detective Junior returned to Plaintiff’s neighborhood with
fellow IMPD Narcotics Detectives Billy Glenn and Gary Riggs. (Id. 21:20-23; PC Aff. at
1). Detective Riggs stayed in his car so that Plaintiff would not feel intimidated by so
many people on his porch, and to be available in the event that Detectives Junior and
Glenn needed help. (Junior Dep. 24:21-25:8). As soon as Detectives Junior and Glenn
got out of their car and began walking towards Plaintiff’s duplex, they could smell fresh
marijuana. (Id. 25:14-18). The smell got stronger as they got closer to the duplex. (Id.
25:19-20). When they stepped onto the porch on the south side of the duplex, Detective
Junior concluded that there “should be a large sum of fresh marijuana in the south side of
the [duplex] because of how strong the smell was.” (Id. 26:2-5). They then walked to the
north side of the duplex, the unit in which they believed Plaintiff lived. (Id. 27:18-19).
As they stood in front of the door to the north unit, they could smell burning marijuana
coming from behind the door. (Id. 27:19-21).
Detective Junior knocked on the door, and Plaintiff answered. (Id. 28:9-11).
Plaintiff stood in front of the door, which opens inward, “in the frame of the door on the
threshold” (i.e., “in the doorway”). (Filing No. 36-5, Dep. of Plaintiff 12:6-10, 13:224
14:8, 14:25-15:1). When Plaintiff opened the door, the detectives smelled burning
marijuana coming from inside the house. (Junior Dep. 28:14-18).
Detectives Junior and Glenn were dressed in plain clothes. (Plaintiff Dep. 12:1018). They told Plaintiff that they were investors interested in buying his property, and
they asked if they could take a look inside. (Id. 12:24-13:13). After he told them that the
property was not for sale, the detectives then revealed themselves to be law enforcement
and one of them quickly flashed his badge, which did not allow Plaintiff an opportunity
to see it well. (Id. 13:9-21, 15:10-16:4). The detectives said, “The game’s up. We’re the
police. We smell burning marijuana, and we need to take a look inside.” (Id. 15:10-13).
The detectives asked Plaintiff if he would consent to a search of his home. (Id. 16:1017:1). He told the detectives that they would need to get a search warrant, at which point
Defendants said his house was being put on “lockdown.” (Id. 16:15-19, 17:18-19).
Plaintiff then “turned around to go back inside because [he] was pretty much done
with the conversation.” (Id. 18:10-11). Because he was “on the outside of the door,” he
had to take “one step back” to go “back into the house.” (Id. 18:24-19:5). (See Filing
No. 42-3, Declaration of Plaintiff ¶ 8 (“I then stepped back from the doorway into the
house . . . .”)). The officers never told him not to go inside. (Id. ¶ 13). Additionally, up
to this point, the officers had not touched him or told him he was under arrest. (Id. ¶¶ 9,
14).
Plaintiff got behind the door and tried to close it, but the door would not shut
because one of the detectives had put his foot on the threshold between the door and the
frame. (Plaintiff Dep. 19:8-20:11). Then “[t]he door crashed in” and Plaintiff “was hit
5
with something in the face.” (Id. 20:13-19). Plaintiff testified that it “felt like a fist in
[his] face,” but that it might have been the door. (Id. 20:21-21:1). The impact caused
him to spin, stumble, and fall facedown onto a couch that was situated just inside the
door. (Id. 21:3-22:5, 24:6-11). As he lay on the couch, he felt knees on his back, and
then one of the detectives wrapped an arm around his neck and began to choke him. (Id.
22:6-23:3). The detectives yelled, “Stop resisting,” but he was not resisting. (Id. 23:1417). Plaintiff felt as if “all the air came out of [his] lungs” and that he was on the verge of
losing consciousness. (Id. 24:24-25, 25:18). Eventually, the detectives sat him up on the
couch and placed him in handcuffs. (Id. 26:20-22).
After Plaintiff was secured in handcuffs, Detective Junior, and possibly Detective
Riggs as well, then conducted a protective sweep of the house. (Id. 28:13-15; Junior
Dep. 42:14-17). During the protective sweep, Detective Junior saw trays of dried
marijuana, live marijuana plants, and drug paraphernalia all over the house in plain view.
(Filing No. 36-6, Affidavit of Detective Junior ¶ 22; see Filing No. 44-1, Exhibits F
(marijuana cigarette), G (trays of dried marijuana), I, J, K, L (marijuana plants, grow
lights, fans, filters, and thermometer), and N (plastic baggies)). Detective Glenn and
Detective Riggs, who by that time had left his car and come to assist, stayed at the house
with Plaintiff while Detective Junior went to apply for a search warrant. (Junior Aff. ¶
16).
A judge issued a search warrant. (Filing No. 36-7, Search Warrant). The Indiana
State Police drug eradication team came and searched the property. (Junior Dep. 49:1821).
6
On July 26, 2013, Plaintiff was charged with dealing in marijuana, possession of
marijuana, maintaining a common nuisance, and resisting law enforcement. See State of
Indiana v. Goldberg, No. 49G14-1307-FD-048773 (Marion Super. Ct. 2014). All
charges were dismissed on April 29, 2014. Id.
II. Legal Standard
“Summary judgment is proper where, construing facts and drawing inferences in
the light most favorable to the non-moving party, ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’” Novoselsky v.
Brown, 822 F.3d 342, 348-49 (7th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)).
III. Discussion
The court construes Plaintiff’s Complaint as advancing four counts: (1) false
arrest, (2) illegal search, (3) illegal entry, and (4) excessive force. Defendants move for
summary judgment on only the first three counts. Plaintiff did not respond to
Defendants’ arguments regarding the illegal search claim, and has therefore abandoned
the claim. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to
respond to an argument . . . results in waiver.”). Summary judgment for Defendants shall
be granted on Count 2.
The only issues remaining before the court are whether Detectives Junior and
Glenn are personally liable for violating Plaintiff’s Fourth Amendment rights when they
allegedly arrested him without probable cause and entered his home without consent or a
warrant. Defendants contend summary judgment in their favor is required because they
are entitled to qualified immunity.
7
A. Qualified Immunity Standard
Qualified immunity is a “powerful shield,” Gregorich v. Lund, 54 F.3d 410, 413
(7th Cir. 1995), that insulates “federal and state officials from money damages unless a
plaintiff pleads facts showing (1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). “Qualified immunity balances two important interests—the
need to hold public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when they perform their
duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The Supreme Court
has stressed that this doctrine “is designed to protect ‘all but the plainly incompetent or
those who knowingly violate the law.’” Morse v. Frederick, 551 U.S. 393, 429 (2007)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “The protection of qualified
immunity applies regardless of whether the government official’s error is ‘a mistake of
law, a mistake of fact, or a mistake based on mixed questions of law and fact.’” Pearson,
555 U.S. at 231 (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J.,
dissenting)). Because qualified immunity is “an immunity from suit rather than a mere
defense to liability . . . it is effectively lost if a case is erroneously permitted to go to
trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
B. False Arrest Claim
To prevail on this claim, Plaintiff must show that there was no probable cause for
his arrest. Brooks v. City of Chi., 564 F.3d 830, 832 (7th Cir. 2009). “The existence of
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probable cause is therefore an absolute defense to a § 1983 claim for false arrest.”
Hurem v. Tavares, 793 F.3d 742, 745 (7th Cir. 2015). Probable cause to arrest “exists
when a reasonable person confronted with the sum total of the facts known to the officer
at the time of the arrest would conclude that the person arrested has committed, is
committing, or is about to commit a crime.” Venson v. Altamirano, 749 F.3d 641, 649
(7th Cir. 2014). This is a “practical, commonsense” concept; probable cause “requires
something more than a hunch,” but it “does not require a finding that it was more likely
than not that the arrestee was engaged in criminal activity.” Abbott v. Sangamon Cty.,
705 F.3d 706, 714 (7th Cir. 2013). At bottom, “the officer’s belief that the arrestee was
committing a crime need only be reasonable.” Id.
For qualified immunity to attach, Defendants need not show they had actual
probable cause though. Rather, they need only show that they had “arguable probable
cause.” Bruce v. Guernsey, 777 F.3d 872, 878 (7th Cir. 2015). Thus, even if the
detectives did not have probable cause to arrest Plaintiff, they are “entitled to qualified
immunity if ‘a reasonable officer could have mistakenly believed that probable cause
existed.’” Burritt v. Ditlefsen, 807 F.3d 239, 250 (7th Cir. 2015) (quoting Fleming v.
Livingston Cty., 674 F.3d 874, 880 (7th Cir. 2012)). Paraphrasing the Fleming court, as
long as the officers reasonably, albeit possibly mistakenly, believed that they had
probable cause to arrest Plaintiff, then they must be shielded from personal liability. 674
F.3d at 880.
Defendants argue that they had probable cause to arrest Plaintiff for both
possessing marijuana and dealing in marijuana. Plaintiff argues just the opposite, and
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further contends that much of the evidence cited by Defendants must be excluded from
the court’s analysis because it was acquired after he was seized. As Plaintiff rightly
notes, “the probable cause determination is made at the moment the arrest is made. Any
evidence, therefore, that came to light after the arrest is not relevant to the probable cause
inquiry.” Maltby v. Winston, 36 F.3d 548, 557 (7th Cir. 1994) (citations and quotation
marks omitted). Plaintiff maintains that he was seized when the officers crashed through
his front door, and therefore any evidence acquired after that moment (such as the 112
live marijuana plants and the trays of dried marijuana) cannot be considered.
Even assuming Plaintiff is correct, there can be no question that the officers had at
least arguable probable cause to arrest him for possessing marijuana prior to entering his
home. Pursuant to Indiana law,
A person who: (1) knowingly or intentionally possesses (pure or adulterated)
marijuana, hash oil, hashish, or salvia; (2) knowingly or intentionally grows
or cultivates marijuana; or (3) knowing that marijuana is growing on the
person’s premises, fails to destroy the marijuana plants; commits possession
of marijuana, hash oil, hashish, or salvia, a Class B misdemeanor . . . .
Ind. Code § 35-48-4-11(a). See Abbott, 705 F.3d at 715 (“The existence of probable
cause or arguable probable cause depends, in the first instance, on the elements of the
predicate criminal offense(s) as defined by state law.”). The officers believed that they
had probable cause based upon: (1) the highly detailed tip made to the Crime Stoppers
website; (2) their independent confirmation of certain information contained in the tip,
including Plaintiff’s ownership of the property, the apparently vacant south side of the
duplex, and the white van leaving the property; (3) the scent of fresh marijuana coming
10
from Plaintiff’s duplex on two different occasions; and (4) the scent of burning marijuana
coming from inside Plaintiff’s home.
Plaintiff attempts to mitigate these facts by emphasizing: (1) the detectives did not
actually witness him possessing marijuana; (2) they could not be sure that the odor came
from his house rather than being blown from a neighboring house; and (3) they could not
be sure that he was the person who smoked marijuana in the house. In making these
arguments, Plaintiff ignores that “probable cause deals not with hard certainties but with
probabilities.” Abbott, 705 F.3d at 714. Moreover, “a finding of probable cause does not
require evidence sufficient to satisfy ‘a reasonable-doubt or even a preponderance
standard.’” United States v. Funches, 327 F.3d 582, 587 (7th Cir. 2003) (quoting
Gerstein v. Pugh, 420 U.S. 103, 121 (1975)).
Assuming, arguendo, that the officers did not have actual probable cause to arrest
Plaintiff for possessing marijuana, a reasonable officer confronted with this evidence
could have mistakenly believed that probable cause existed. Therefore, Defendants are
entitled to qualified immunity on Plaintiff’s false arrest claim. Summary judgment for
Defendants is required.
C. Illegal Entry Claim
It is well established that law enforcement “may constitutionally arrest an
individual in a public place (e.g., outside) without a warrant, if they have probable
cause.” Sparing v. Vill. of Olympia Fields, 266 F.3d 684, 688 (7th Cir. 2001) (citing
United States v. Watson, 423 U.S. 411, 417-24 (1976)). However, even with probable
cause, an officer “may not constitutionally enter a home without a warrant to effectuate
11
an arrest, absent consent or exigent circumstances.” Id. (citing Payton v. New York, 445
U.S. 573, 585-90 (1980)). As the Supreme Court noted, “physical entry of the home is
the chief evil against which the wording of the Fourth Amendment is directed.” United
States v. United States Dist. Court, 407 U.S. 297, 313 (1972). Warrantless entry into a
home is per se unreasonable under the Fourth Amendment, unless one of the “specifically
established and well-delineated exceptions” applies. Mincey v. Arizona, 437 U.S. 385,
390 (1978).
Defendants argue that exigent circumstances, one of the established exceptions,
applies in this case. This exception may only be invoked “when there is a pressing need
for the police to enter but no time for them to secure a warrant.” Sutterfield v. City of
Milwaukee, 751 F.3d 542, 557 (7th Cir. 2014) (citing Michigan v. Tyler, 436 U.S. 499,
509 (1978)). The officers raise three specific exigencies expressly recognized by the
Seventh Circuit in Sutterfield: (1) “when police are in ‘hot pursuit’ of a fleeing suspect”,
(2) “to prevent imminent destruction of evidence,” and (3) “when there is a danger posed
to others by the occupant of a dwelling.” Id.
1. Hot Pursuit of a Fleeing Suspect
First, Defendants argue that they were entitled to enter Plaintiff’s home because
they were in “hot pursuit” of a fleeing suspect (specifically, Plaintiff). In support of this
position, Defendants rely on the Supreme Court’s decision in United States v. Santana,
427 U.S. 38 (1976). In Santana, law enforcement had probable cause to arrest the
defendant for drug crimes. Id. at 40, 42. As they were approaching the defendant’s
home, officers noticed that she was standing in the doorway. They “pulled up within 15
12
feet” of the defendant, got out of the vehicle, shouted “police,” and displayed their
identification. Id. at 40. The defendant immediately fled inside her home. The police
followed through the open door and arrested her. Id.
The defendant moved to suppress evidence found during and after her arrest,
arguing that the officers had illegally entered her home. Id. at 41. The Supreme Court
disagreed and held that the defendant “was in a ‘public’ place” when the police arrived.
Id. at 42. By standing in her doorway, “[s]he was not in an area where she had any
expectation of privacy. . . . She was not merely visible to the public but was as exposed
to public view, speech, hearing, and touch as if she had been standing completely outside
her house.” Id. The Court went on to hold, “a suspect may not defeat an arrest which has
been set in motion in a public place . . . by . . . escaping to a private place.” Id. at 43.
The entry was therefore justified by the “hot pursuit” of a fleeing felon exigency. Id.
Applying the rule from Santana, Defendants assert that, because Plaintiff was
standing in the doorway to his home during the entire encounter, he was in public when
they initiated his arrest. 3 Plaintiff was not allowed to “thwart an otherwise proper arrest”
3
Defendants actually advance this theory as an argument in the alternative. They primarily
argue that Plaintiff had completely exited his home by highlighting certain portions of his
deposition testimony. As noted above, Plaintiff testified that, during his talk with the officers, he
stood in front of his door, which opens inward, “in the frame of the door on the threshold” (i.e.,
“in the doorway”). (Plaintiff Dep. 12:6-10, 13:22-14:8, 14:25-15:1). Once he decided to end the
conversation, he had to take “one step back” to go “back into the house” because he was “on the
outside of the door.” (Id. 18:24-19:5). Defendants reason that if Plaintiff had to turn around and
step back into the house, he must have been outside the home during the encounter. In doing so,
Defendants take Plaintiff’s words out of context and misconstrue an unambiguous narrative.
When a door opens inwards, a person standing in the doorway cannot close the door until he
steps back into the interior of the home. Plaintiff’s testimony is not inconsistent or contradictory;
he was standing in his doorway.
13
by “retreating in h[is] house.” Id. at 42. Thus, when he attempted to go back inside the
home, the officers were lawfully entitled to pursue him as a fleeing suspect.
Plaintiff distinguishes Santana, and asserts that this case is more akin to United
States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991). In Berkowitz, law enforcement had
probable cause to arrest the defendant for stealing government property. Id. at 1378,
1380. Internal Revenue Service agents knocked on the defendant’s door, and he opened
the door to answer. Id. at 1380. There was a dispute of fact as to what happened next.
According to one of the agents, after the defendant opened the door, the agent
immediately told him that he was under arrest. The defendant did not resist or attempt to
close the door. The agents consequently entered the home to complete the arrest.
According to the defendant, immediately after he opened the door, an agent stepped
inside the home and then told him that he was under arrest. Id.
The Seventh Circuit concluded that if the agents were to be believed, there was no
Fourth Amendment violation: “When the police assert from outside the home their
authority to arrest a person, they have not breached the person’s privacy interest in the
home. If the person recognizes and submits to that authority, the arrestee, in effect, has
forfeited the privacy of his home to a certain extent.” Id. at 1387.
If, however, the defendant was to be believed, there was a Fourth Amendment
violation. The court explained, “A person does not abandon this privacy interest in his
home by opening his door from within to answer a knock. Answering a knock at the door
is not an invitation to come in the house.” Id. See Sparing, 266 F.3d at 690 (same). See
also Kentucky v. King, 563 U.S. 452, 470 (2011) (“[E]ven if an occupant chooses to open
14
the door and speak with [law enforcement officers who do not have a warrant], the
occupant need not allow the officers to enter the premises and may refuse to answer any
questions at any time.”). The court went on to distinguish Santana:
As far as reasonable privacy expectations go, there is a significant difference
between a person who for no reason voluntarily decides to stand in his open
doorway, and a person who merely answers a knock on his door. The person
who answers the knock and stays within the house is not voluntarily exposing
himself “to public view, speech, hearing, and touch as if [he is] standing
completely outside [his] house.”
Berkowitz, 927 F.2d at 1388 (quoting Santana, 427 U.S. at 42) (alteration in Berkowitz).
The court agrees with Plaintiff that Santana is inapplicable to this case. Unlike the
defendant in Santana, Plaintiff was not standing in his open doorway before speaking
with the officers. Rather, he opened his door in response to the officers’ knock.
Berkowitz makes clear that this distinction is significant, as it means Plaintiff was not in
public during the encounter. Id. See United States v. Xiong, 60 F. Supp. 2d 903, 909
(E.D. Wis. 1999) (“[W]hen police knock or otherwise act to induce defendant to open the
door, the open threshold is not instantly converted into a public place. This is especially
true when the inducement has been an affirmative misrepresentation by police as to their
identity.”). Thus, Plaintiff was inside his home, a private space, when he spoke with the
detectives.
Since Defendants did not have a search warrant, Plaintiff retained the “right to
close the door on the unwanted visitors.” Berkowitz, 927 F.2d at 1387. As a fellow
district court explained,
It does make perfect sense to allow officers to finish the job and complete a
valid doorway arrest by chasing the arrestee inside if he tries to run. But if
15
officers start an invalid doorway arrest, then further Fourth Amendment
intrusions into the home cannot be excused by the homeowner’s attempt to
retreat into the home.
Flores v. Lackage, 938 F. Supp. 2d 759, 771-72 (N.D. Ill. 2013). Therefore, this
exigency does not support Defendants’ warrantless entry into Plaintiff’s home.
2. Imminent Destruction of Evidence
Second, Defendants advance a one-sentence, perfunctory argument that they were
justified in entering the home without a warrant because they had a realistic expectation
that, if they left to get a warrant, Plaintiff would have taken steps to destroy evidence.
Defendants present no evidence whatsoever to support this position. Exigent
circumstances to enter a residence do not automatically exist simply because officers
suspect that individuals within the house might attempt to destroy evidence. The Seventh
Circuit has soundly rejected this type of argument:
Police who without a warrant knock on the door of a drug house seeking
consent to enter take the risk that permission will be withheld and an
emergency will not materialize. Where an occupant turns the police away or
asks to see a warrant, the officer cannot, without some other suspicious
activity, justify a warrantless entry based solely on the fear that evidence
might be destroyed.
United States v. Etchin, 614 F.3d 726, 733 (7th Cir. 2010) (citation, quotation marks, and
brackets omitted). The court went on to conclude that “an emergency justifying entry
and a search arises only if the officer knocking at the door observes objective evidence
that there is an ongoing crime within that must be stopped before it is completed.” Id. at
734. Defendants make no attempt to show how they satisfy this standard. If law
enforcement needed to show just a mere possibility that evidence will be destroyed, that
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“would effectively nullify any requirement of a warrant to search a house. All the police
would need would be probable cause to believe that the house was occupied and
contained contraband or evidence of crime.” United States v. Collins, 510 F.3d 697, 699
(7th Cir. 2007).
Moreover, Defendants suspected Plaintiff had a sizeable marijuana grow operation
in his home. It would not have been possible for him to destroy the many live plants and
heavy equipment required for such an operation in the time it takes to obtain a search
warrant. As Plaintiff quips, a few ounces of dried marijuana can be flushed down a toilet.
Lights and ventilators cannot. Therefore, this exigency does not support Defendants’
warrantless entry into the home.
3. Danger to Others
Third, Defendants argue that their warrantless entry into the home was justified
based upon their fear that Plaintiff might obtain a weapon from inside and use it against
them. In other words, they were concerned for their safety. In support, the detectives
point to one piece of evidence: the Crime Stoppers Tip, which noted that Plaintiff had a
knife. They essentially claim that if Plaintiff had a knife, it was reasonable for them to
think he might have also had a gun or some other dangerous weapon. Nonsense. As
Plaintiff notes, this is pure speculation on the part of Defendants. There was no evidence
indicating Plaintiff had firearms in his home. In fact, the Crime Stoppers Tip actually
states, “Weapons: I know he has a knife and believe he has no guns.” Additionally,
Defendants present no evidence that Plaintiff was violent or threatening during this
17
encounter. Therefore, this exigency does not support Defendants’ warrantless entry into
the home.
4. Qualified Immunity Determination
None of the exigent circumstances invoked by Defendants justify their warrantless
intrusion into Plaintiff’s home. When Defendants prevented Plaintiff from shutting his
door and then forced themselves into his home, they violated his Fourth Amendment
“right to be free from physical intrusion into the home by police officers without a
warrant seeking to effectuate an arrest.” Sparing, 266 F.3d at 690. This right was clearly
established by the Seventh Circuit in Berkowitz in 1991, and then reaffirmed in Sparing
in 2001, long before this incident took place in 2013. Consequently, Defendants are not
entitled to qualified immunity for Plaintiff’s illegal entry claim.
IV. Conclusion
Therefore, Defendants’ Motion for Partial Summary Judgment (Filing No. 35) is
GRANTED IN PART. The motion is granted as to Plaintiff’s false arrest and illegal
search claims. The motion is denied as to Plaintiff’s illegal entry claim.
SO ORDERED this 23rd day of September 2016.
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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