Sangster v. Hardel et al
Filing
93
DECISION AND ORDER signed by Judge Lynn Adelman on 1/25/17 denying 49 plaintiff's Motion for Summary Judgment; granting 55 defendants' Motion for Summary Judgment. Further ordering that this case is DISMISSED. (cc: all counsel, via USPS to plaintiff) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DERRICK A. SANGSTER,
Plaintiff,
v.
Case No. 15-CV-727
THOMAS HINES, STEVE KICKHAVER,
NATHAN CIHLAR, SHAWN FRITSCH,
SANDRA HUNT, AND DALE ZANDER,
Defendants.
______________________________________________________________________
DECISION AND ORDER
The pro se plaintiff, Derrick Sangster, is a Wisconsin state prisoner. He filed this
civil rights action alleging that, prior to his incarceration, the defendants conspired to
search his apartment and seize his property, in violation of the Fourth Amendment.
The parties have filed cross-motions for summary judgment.
The court will deny
plaintiff’s motion, grant defendants’ motion, and dismiss this case.
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home
Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under
the applicable substantive law that “might affect the outcome of the suit.”
See
Anderson, 477 U.S. at 248. A dispute over “material fact” is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials; or (B)
showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4).
FACTUAL BACKGROUND
A. The Parties
At all times relevant to this case, plaintiff lived in Wausau, Wisconsin.
Defendants Dale Zander, Thomas Hines, Nathan Cihlar, Shawn Fritsch, Sandra Hunt,
and Steve Kickhaver are police officers for the Wausau Police Department.
B. Plaintiff’s Claims
Plaintiff claims that defendants violated his Fourth Amendment rights when they
searched his apartment on November 26, 2012, after his brother, Joseph Sangster,
called 911 and informed a dispatcher that there were guns and drugs in the apartment
and he was worried for his safety.
Plaintiff was not in the apartment when police
arrived. He was arrested on a warrant shortly after they arrived, and subsequently
removed from the scene.
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Plaintiff alleges that he did not give the officers consent to search his apartment,
and that his brother Joseph did not have a legal right to consent to search the
apartment because Joseph did not live there. Plaintiff alleges that the officers conspired
to gain entry to his apartment to search for guns and drugs, encouraged his brother to
search the apartment for the officers, and unlawfully seized his property. Plaintiff claims
that defendants manipulated his brother, a paranoid schizophrenic with mental
disabilities, to force entry into the apartment and conduct a search on their behalf, as a
“private citizen,” in violation of his constitutional rights, and conspired to do so.
C. Defendants’ Facts 1
Plaintiff lived at 3315 Terrace Court in Wausau, Wisconsin, from June or July
2011 until November 2012. On November 26, 2012, Wausau police received a call from
Joseph Sangster, plaintiff’s brother, who stated he was concerned for his welfare, and
was reporting guns and drugs at the apartment.
responded to the call.
Officers Hines and Kickhaver
Officers Zander, Hunt, and Cihlar responded later to the
apartment.
While Officer Hines was speaking to Joseph Sangster in the parking lot outside
of the apartment, plaintiff approached Officer Hines. Plaintiff denied that his brother
Joseph was living at the apartment or had any connection to the apartment. During the
call, plaintiff was arrested because there was an unrelated warrant for his arrest with a
1
This section is taken from Defendants’ Proposed Findings of Fact filed in support of
their motion for summary judgment. Defendants’ facts are undisputed because plaintiff
did not respond to them as required by the Local Rules. See Civil L.R. 56(b)(2) (E.D.
Wis.). In addition, plaintiff did not file his own proposed findings of fact. See Civil L.R.
56(b)(1) (E.D. Wis.).
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bond amount of $1,000.00. Plaintiff was removed from the scene subsequent to his
arrest.
Officers Hines and Zander conducted a protective sweep of the apartment.
Later, officers, including Officer Cihlar, obtained a search warrant and searched the
apartment. Officer Fritsch, who is a drug investigator, also responded to the scene and
assisted with the drug investigation. Officer Kickhaver, who responded to the call as a
backup officer, never entered the apartment. The officers found marijuana, scales,
baggies, fire arms, and ammunition in the apartment and adjacent areas.
Plaintiff was charged with possession of THC with intent to deliver, in violation of
Wis. Stat. § 961.41(1m)(h)1; with being a felon in possession of a firearm, in violation of
Wis. Stat. § 941.29(2)(a); with Bail Jumping in violation of Wis. Stat. § 946.49(1)(b); and
with theft of movable property, in violation of Wis. Stat. § 943.20(1)(a).
During the
course of his criminal prosecution plaintiff was represented by four separate defense
attorneys, John M. Bliss, Julianne Lennon, Ryan Lister and Christina Starner.
On February 15, 2013, plaintiff’s criminal defense attorney filed with the court a
motion to suppress the evidence due to illegal search of the residence. On April 10,
2013, plaintiff’s criminal defense attorney filed with the court a motion to quash the
search warrant and to suppress evidence on the grounds that the search warrant was
illegally obtained.
On May 8, 2013, the State of Wisconsin and plaintiff appeared in Marathon
County Circuit Court, the Hon. Thomas Cane presiding, to argue various pretrial
motions filed by the State and by plaintiff. Plaintiff was represented by his attorney,
Julianne Lennon. Two of the pretrial motions being considered were plaintiff’s motions
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to suppress evidence due to plaintiff’s belief that the search of his residence by the
defendants was illegal, because his brother Joseph did not have the right or authority or
capacity to consent to search of plaintiff’s apartment, and to quash the search warrant.
Officer Hines testified at the hearing, and was cross-examined by plaintiff’s
criminal defense counsel. Plaintiff also testified at the hearing. At various times during
the May 8, 2013, motion hearing and the subsequent May 13, 2013, motion hearing,
both the State and the defense played portions of the audio of the squad video which
recorded the encounter while plaintiff was under arrest and placed in the squad. The
tape was offered into evidence and admitted.
The pretrial motions were not fully
presented, argued or decided at the May 8, 2013, hearing so the hearing was continued
to the next day.
On May 9, 2013, the parties reconvened for a continuation of the motion
hearings, including the motion to suppress evidence based on the alleged unlawful
search, and the motion to quash the search warrant.
represented by defense attorney Julianne Lennon.
Plaintiff continued to be
Officers Kickhaver, Cihlar and
Fritsch testified. Plaintiff’s mother, LaVette Morton, also testified at the May 9, 2013,
hearing relative to the suppression motion.
Twenty-two exhibits were offered and
admitted during the hearing. At the end of the May 9, 2013 hearing, the parties and
court had still not completed presenting and deciding all of the pretrial motions.
On May 13, 2013, the parties again reconvened to continue to argue and
consider the pretrial motions.
Plaintiff continued to be represented by his criminal
defense attorney, Julianne Lennon.
Officers Zander and Fritsch testified at the
suppression hearing, and four exhibits were offered and admitted. Derrick Sangster’s
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father, Darrow Fowler, testified at the May 13, 2013 suppression hearing.
Joseph
Sangster, plaintiff’s brother, also testified. Joseph testified about the circumstances
surrounding him calling the police on November 26, 2012, and his discussions relative
to their entry into the apartment and search of the apartment.
The testimony and exhibit evidence relative to the suppression motion, including
the legality of Joseph’s consent and the validity of the search warrant, was finally
completely presented during the May 13, 2013, hearing. The State and plaintiff (Derrick
Sangster) were given the opportunity to present argument to the court regarding the
validity of the search warrant. After argument, the court determined that the search
warrant was valid. Next the parties were given the opportunity to present argument to
the court regarding the validity of Joseph’s consent and the legality of the search. After
argument, the court determined that Joseph Sangster was living at the apartment at the
time of the search, and that the officers obtained valid consent from Joseph to search
the apartment. The pretrial motion hearing was completed on the May 13, 2013.
Plaintiff pleaded no contest to the first two charges, Possession with Intent –
THC and Felon in Possession of a Firearm.
He did not appeal the denial of the
suppression of the evidence.
DISCUSSION
Plaintiff contends that he is entitled to summary judgment on his Fourth
Amendment claims that defendants encouraged, directed, and acted jointly with a
private citizen (his brother Joseph) to illegally enter plaintiff’s residence, and to search
and seize his property.
Plaintiff also contends that defendants conspired with his
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brother to illegally enter plaintiff’s residence, search and seize his property, and to cover
up the illegal entry and search.
In their response to plaintiff’s motion for summary judgment and in their own
motion for summary judgment, defendants contend that collateral estoppel (issue
preclusion) bars plaintiff from claiming in this case that defendants violated his Fourth
Amendment rights related to the search of the apartment. They also contend that since
there is no Fourth Amendment violation, plaintiff’s conspiracy claim must be dismissed.
A federal court must give to a state-court judgment the same preclusive effect as
would be given that judgment under the law of the State in which the judgment was
rendered. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); see
also, 28 U.S.C. § 1738. “Issue preclusion bars successive litigation of an issue of fact
or law actually litigated and resolved in a valid court determination essential to the prior
judgment, even if the issue recurs in the context of a different claim.” Dexia Credit Local
v. Rogan, 629 F.3d 612, 628 (7th Cir. 2010); Bailey v. Andrews, 811 F.2d 366, 369 (7th
Cir. 1987). Accordingly, a § 1983 plaintiff can be collaterally estopped from relitigating
Fourth Amendment claims that were lost at a criminal suppression hearing. See Allen v.
McCurry, 449 U.S. 90, 103-05 (1980); Guenther v. Holmgreen, 738 F.2d 879, 883-84
(7th Cir. 1984); see also Munz v. Parr, 972 F.2d 971, 973 (8th Cir. 1992); Valley Wood
Preserving, Inc. v. Paul, 785 F.2d 751, 753 (9th Cir. 1986). The preclusive effect in
federal court of plaintiff’s state-court judgment is determined by Wisconsin law. See
Migra, 465 U.S. at 81.
In Wisconsin, the ruling on an issue raised and necessarily determined in a
proceeding that ended in a valid judgment may be, but is not always, preclusive in later
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litigation. Rille ex rel. Rille v. Physicians Ins. Co., 300 Wis. 2d 1, 728 N.W.2d 693, 702
(2007); City of Sheboygan v. Nytsch, 296 Wis. 2d 73, 722 N.W.2d 626, 630-31 (2006).
Not always, because Wisconsin courts apply issue preclusion as a matter of equitable
discretion even when the legal elements are met. Rille, 728 N.W.2d at 702-03. Judges
look to a variety of factors in evaluating whether it would be fundamentally unfair to
apply issue preclusion: whether the party opposing issue preclusion could have
obtained review of the earlier adverse decision, whether the earlier proceeding was of
significantly lower quality or scope, whether the parties’ burdens have shifted since the
earlier proceeding, and whether the party opposing preclusion lacked an adequate
incentive or opportunity to litigate the issue fully in the earlier proceeding. Paige K.B. ex
rel. Peterson v. Steven G. B., 226 Wis. 2d 210, 594 N.W.2d 370, 375 (1999); Michelle
T. ex rel. Sumpter v. Crozier, 173 Wis.2d 681, 495 N.W.2d 327, 330-31 (1993) (deriving
factors from Restatement (Second) of Judgments § 28 (1982)).
Plaintiff contends that collateral estoppel/issue preclusion should not prevent him
from litigating his claims because he did not have a full and fair adjudication in the state
court action.
According to plaintiff, his attorney ineffectively represented him, and
neither he nor his attorney were able to view “sqd audio/exhibit #5” during the pretrial
phase because of encryption software. Thus, plaintiff contends that he had no way of
knowing his Fourth Amendment rights were violated when his brother, Joseph Sangster,
became a government agent for the Wausau Police Department. Plaintiff contends that
the governmental agent issue is distinguished from the criminal Fourth Amendment
issue because the squad audio at 15:06 exposes Officer Hines’s encouragement of
Joseph Sangster to search plaintiff’s personal bathroom and bedroom (“Do you just
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want to look around and make sure there’s nothing.”).
Plaintiff also contends that
collateral estoppel/issue preclusion does not apply because he pled no contest to the
criminal charges and therefore did not fully adjudicate the issue.
In this case, the precise issues in question – whether Joseph Sangster had the
right, capacity, and authority to consent to enter and search the apartment under the
Fourth Amendment, and whether the subsequent search warrant the officers obtained
was valid under the Fourth Amendment – were actually litigated and necessarily
decided in the state criminal case. Plaintiff’s motion to suppress and his motion to
quash challenged both the entry into the apartment, the initial search, and the validity of
the subsequent search warrant the officers obtained. Judge Cane heard argument from
plaintiff’s attorney and from the State, and Judge Cane heard testimony from Officer
Hines, plaintiff, Officer Kickhaver, Officer Cihlar, Officer Fritsch, plaintiff’s mother, Officer
Zander, plaintiff’s father, and from Joseph Sangster. After three days of testimony,
Judge Cane determined that the officers obtained valid consent from Joseph Sangster
to enter apartment and that the subsequent search warrant was valid. Upon searching
the apartment, the officers found marijuana, scales, baggies, firearms, and ammunition.
Plaintiff does not cite admissible evidence in support of his contention that his
attorney was ineffective. Plaintiff’s defense attorney filed several motions prior to his
trial, including two motions to suppress the evidence obtained pursuant to the officers’
search of his apartment, both at the time Joseph gave his consent to the search, and
subsequent to their obtaining the search warrant. After extensive hearings covering
three days, plaintiff’s motion to suppress the evidence and motion to quash the search
warrant were denied.
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There is nothing unfair about applying preclusion in this case. Plaintiff did not
challenge Judge Cane’s decision to deny the suppression of the evidence. There is no
reason to suspect the quality or extent of the suppression hearing fell below the
threshold required to justify giving the ruling preclusive effect.
The state court’s adverse ruling on plaintiff’s motion to suppress and motion to
quash precludes plaintiff from relitigating the constitutionality of the searches and
Joseph Sangster’s ability to consent to search. See Kaprelian v. Bowers, 460 Fed.
App’x 597, 599-600 (7th Cir. 2012) (collateral estoppel/issue precluded plaintiff who
pleaded no contest to criminal charges from relitigating the constitutionality of the
seizure of videos collected from his house). Since the legality of Joseph’s Sangster’s
consent, the initial search of the apartment, the search warrant, and the remainder of
the search were actually litigated and finally decided by a court of competent
jurisdiction, Sangster is now estopped from asserting his Fourth Amendment claim.
Lastly, because I am granting defendants’ motion for summary judgment on
plaintiff’s Fourth Amendment claims, I must also dismiss his conspiracy claim. See
Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008) (citing Cefalu v. Vill. of Elk Grove,
211 F.3d 416, 423 (7th Cir. 2000) (conspiracy is not an independent basis of liability in
§ 1983 actions).
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that plaintiff’s motion for
summary judgment (Docket 49) is DENIED.
IT IS FURTHER ORDERED that defendants’ motion for summary judgment
(Docket 55) is GRANTED.
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IT IS FURTHER ORDERED that this case is DISMISSED.
Dated at Milwaukee, Wisconsin, this 25th day of January, 2017.
s/ Lynn Adelman
______________________________
LYNN ADELMAN
United States District Judge
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