Newson v. Lopez et al

Filing 77

ORDER granting 54 Motion for Summary Judgment; denying 60 Motion for Summary Judgment. (cc: all counsel and via US Mail to Marquis Newson) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MARQUIS D. NEWSON,
Plaintiff,
v.

Case No. 16-C-1084

MICHAEL LOPEZ and
CHRISTINA MARSHALL,
Defendants.

ORDERING GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

This case raises the interesting question of whether police officers who bring a dog trained
to detect drugs, as well as firearms, to assist in executing a search warrant authorizing them to search
for and seize firearms, violate the homeowner’s Fourth Amendment right against unreasonable
searches and seizures. Although the pro se plaintiff has asserted other claims, they clearly lack any
merit. On the closer and more interesting question, I conclude on the undisputed facts of the case
that no violation occurred. I therefore grant the defendants’ motion for summary judgment and deny
the plaintiff’s motion.
I. BACKGROUND
Plaintiff Marquis Newson brought this 42 U.S.C. § 1983 civil rights action against two City
of Milwaukee police officers, alleging violations of his constitutional rights arising out of his arrest
for the crimes of felon in possession of a firearm and possession of marijuana and cocaine with intent
to deliver. Newson is currently serving a state sentence at Stanley Correctional Institution. He
claims that two City of Milwaukee Police Officers, Defendants Michael Lopez and Christina

Marshall, subjected him to an illegal search, arrest and detention in violation of the Fourth
Amendment, and that the arresting officer failed to obtain a judicial determination of probable cause
for his arrest within 48 hours of his detention as required under County of Riverside v. McLaughlin,
500 U.S. 44, 56 (1991). Newson also asserted a Monell claim against Milwaukee County; however,
summary judgment was granted for Milwaukee County on January 25, 2017, and it was dismissed
from the case at that time. This decision will address the remaining claims against the City police
officer defendants.
Officer Michael Lopez and Officer Christina Marshall worked for the Milwaukee Police
Department (MPD). Officer Lopez is trained in firearms investigations and enforcement. Officer
Marshall is trained as a K-9 handler. Both have extensive experience with the MPD. Defendants’
Proposed Findings of Fact (“DPFOF”), ¶¶ 1–4, ECF No. 56. On September 25, 2014, Officer Lopez
swore to and signed an affidavit in support of a search warrant of 2525-27 North 38th Street,
Milwaukee, Wisconsin, which was the residence of Marquis D. Newson. Id. at ¶ 5. The warrant
application was supported by an affidavit signed by Officer Lopez which recounted the information
he had received from a confidential informant with a history of reliability, who stated he had seen
Newson, a convicted felon, in possession of a firearm within the past 14 days at Newson’s residence
located at 2525-27 North 38th Street. ECF No. 57-1. Although the premises was an upper/lower
duplex, the informant told Officer Lopez that Newson had access to both units and used it as a single
family residence. ECF No. 57-2 at ¶12.
At 3:51 p.m. on September 25, 2014, Milwaukee County Circuit Judge Janet Protasiewicz
authorized a no-knock search warrant for premises. ECF No. 57-2; DPFOF at ¶ 6. The search
warrant described the objects of the search as: (1) “firearms, ammunition, shell casings, receipts
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related to firearm/ammo purchase;” (2) “items associated with firearms, i.e., cleaning kits, holsters,
ballistic vests, targets, photographs/video depicting persons in possession of firearms;” and (3)
“documents, utility bills, keys, writings, cell phones, computers, books, records, receipts, notes,
ledgers, receipts relating to the purchase and/or possession of firearms and/or other documentary
evidence establishing who is in control of the premises.” Id. at ¶ 7; see also ECF No. 57-2.
On September 26, 2014, at approximately 10:46 am, Officers Lopez and Marshall, along with
nine other officers executed the search warrant on 2525-27 North 38th Street. Id. at ¶¶ 8–9. Officer
Marshall also had Kenny, her K-9, who was trained to search for firearms, narcotics, humans, and
the derivative odors of each. Id. at ¶¶ 9, 24. Upon the team’s arrival, Newson, who had been on
the porch, fled into the house. Id. at ¶¶ 11–12. Newson was located in the kitchen of the upper unit.
Id. at ¶ 14. Officer Matthew Seitz conducted a search of Newson’s person and discovered a
sandwich baggie of white powdery substance in Newson’s right front coin pocket. Id. at ¶ 15.
Newson was taken into police custody at that time. Id. Officer Lopez performed a field test on the
white powdery substance, which tested positive for cocaine. Id. at ¶ 16.
After the residence was cleared by the entry team, Officer Marshall and Kenny performed a
walk-through. Id. at ¶ 22. Marshall knew the search warrant authorized the search for firearms,
ammunition, shell casings, and extra magazines. Id. at ¶ 25. Officer Marshall gave Kenny the verbal
command and specific scent to search for a firearm. Id. at ¶ 26. When searching through the house,
Kenny aggressively scratched a brown box that was lying on the attic steps. Id. at ¶ 27. Kenny is
trained to perform this action when he detects the odor of narcotics. Id. Officer Michael
Wawarzyniakowski opened the brown box and found a white five-gallon bucket with a closed lid,
which he removed to find a large quantity of what appeared to be marijuana. Id. at ¶¶ 28–29.
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Officer Wawarzyniakowski opened the box after Kenny indicated he smelled narcotics because based
on Officer Wawarzyniakowski’s training, he knows that firearms are often kept with narcotics. Id.
at ¶ 28. Officer Lopez performed a field test on the substance in the bucket and it tested positive for
the presence of tetrahydrocannabinol and had a total weight of over 4,500 grams. Id. at ¶ 30.
Officer Marshall and Kenny then left the residence. Id. at ¶ 31.
As officers continued executing the search warrant, Officer Wawarzyniakowski located a
sandwich baggie in the kitchen that had two smaller baggies each containing a powdery white
substance. Id. at ¶ 32. Officer Lopez field tested the substances, which tested positive for cocaine.
Id. Officer Hunter located a zip lock bag in a television box in the bedroom that appeared to contain
marijuana. Id. at ¶ 34. Officer Lopez field tested the substance and it tested positive for the
presence of tetrahydrocannabinol.

Id. Officer Wawarzyniakowski located a handgun, with

ammunition inside it, in a trash can in the basement. Id. at ¶ 36. Newson was transported to the jail
for processing. Id. at ¶ 37. Officer Lopez completed a probable cause statement for the arrest at
approximately 4:30 on September 26, 2014. Id. at ¶ 38. The probable cause statement noted that
Newson was currently on probation with the Department of Corrections (“DOC”) and the DOC
placed a hold on Newson. Id. at ¶ 29.
On August 15, 2016, Newson filed this federal complaint alleging violations of his civil rights
during the search of his house. Newson argues that Lopez and Marshall exceeded the search warrant
by using K-9 Kenny because Kenny was a “drug dog” and there were no drugs described in the
search warrant. Additionally, Newson argues that because the search was illegal, his arrest was also
illegal. Lastly, Newson argues that his detention by Lopez was unlawful because he was detained

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for more than 48 hours before receiving a judicial determination of probable cause. On June 16,
2017, Newson filed for summary judgment on these issues. ECF No. 60.
On June 13, 2017, Lopez and Marshall filed for summary judgment. ECF No. 54. They
argue that the search was within the limits of the search warrant, which was valid. Furthermore, they
argue that Newson was lawfully arrested and detained. Lastly, they argue that they are entitled to
qualified immunity.
II. LEGAL STANDARDS
Summary judgment is proper “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; see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986); McNeal v. Macht, 763 F. Supp. 1458, 1460–61 (E.D. Wis. 1991). “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. “On review of cross-motions
for summary judgment, [the court] view[s] all facts and inferences in the light most favorable to the
nonmoving party on each motion.” Lalowski v. City of Des Plaines, 789 F.3d 784, 787 (7th Cir.
2015).
III. ANALYSIS
A. The Search Was Lawful
The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend.
IV. A search performed pursuant to a valid warrant issued by a judge is presumptively reasonable.
Archer v. Chisholm, 870 F.3d 603, 613 (7th Cir. 2017). “In order to be valid, a search warrant
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must: (1) be issued by a neutral and disinterested magistrate; (2) establish probable cause that the
evidence sought in the warrant will aid in obtaining a conviction of a particular offense; and (3)
describe with particularity the things to be seized and the place to be searched.” Id. at 614 (citing
Dalia v. United States, 441 U.S. 238, 255 (1979)). “Even if one of those elements is missing, an
officer is still entitled to qualified immunity if she is acting pursuant to a warrant that was authorized
by a judge, and her action is reasonable.” Id. (citing United States v. Leon, 468 U.S. 897, 920–21
(1984); Malley v. Briggs, 475 U.S. 335, 344–45 (1986)). “Only when an officer seeks or obtains
a warrant ‘so lacking in indicia of probable cause as to render ... belief in its existence unreasonable,’
may the officer face liability for damages.” Id. (quoting Malley, 475 U.S. at 344–45).
It is clear from these principles that to the extent Newson is challenging the validity of the
warrant under which the search was conducted, his claim fails. The affidavit submitted in support
of the application for a search warrant, which recounted the information Officer Lopez had received
from a confidential informant, as well as his own independent investigation, was sufficient to
establish probable cause. The information that Newson had a firearm at his residence was based on
the personal observation of the confidential informant, and the reliability of the informant was
established for probable cause purposes by the fact that the informant had provided information that
led to the issuance of at least five previous search warrants and the recovery of items the informant
stated would be there. This was sufficient to establish probable cause even under the old two-prong
standard of Aguillar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410
(1969), that the Court abandoned as overly rigid in Illinois v. Gates, 462 U.S. 213, 238 (1983).
Officer Lopez independently confirmed that Newson had previously been convicted of a felony, was
under supervision of the Wisconsin Department of Corrections (DOC), and had listed the address
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of the duplex with the DOC as his residence. Together with the information provided by the
informant, this was sufficient to establish probable cause under the “totality of the circumstances”
standard adopted by the Supreme Court in Gates. Id. at 241–42. While it is true that the
informant’s observation of Newson with a firearm had occurred as much as two weeks earlier, that
fact did not undermine the judge’s probable cause determination. See United States v. Harju, 466
F.3d 602, 608 (7th Cir. 2006) (holding that even though three weeks passed between the gun’s
sighting by a confidential informant and the warrant’s execution, reliance on the confidential
informant was not undermined because unlike a small amount of drugs or cash, “the gun was not
likely to have been sold (or consumed) during that period”). Finally, even if there was some basis
to challenge the warrant’s validity, the officers were clearly entitled to rely on its facial validity and
thus would be immune from any liability in doing so. Malley, 475 U.S. at 344–45.
Newson’s primary claim, however, is not to the validity of the warrant or even the fact of the
search, but to the manner in which the search was conducted. Newson claims that the use of Kenny,
a dog trained in the detection of drugs, to conduct the search of his house violated his Fourth
Amendment rights. Newson argues that the use of Kenny was unconstitutional because Kenny was
a drug-sniffing dog and the search warrant did not mention drugs. In support of his argument,
Newson relies on the Supreme Court’s decision in Florida v. Jardines, 569 U.S. 1 (2013). In
Jardines, the Court held that law enforcement’s use of a drug-sniffing dog on the front porch of the
defendant’s home constituted an unconstitutional search and that a warrant based on the dog’s
indication of the presence of drugs was therefore invalid. Newson argues that the use of Kenny to
conduct the search of his home exceeded the scope of the search authorized by the warrant in this
case, and thereby violated his constitutional rights.
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This case is clearly distinguishable from Jardines, however. In this case, unlike Jardines,
police already had a warrant to conduct a full search of Newson’s home when they arrived with
Kenny. This fact is significant. The central holding of Jardines was that the use of a drug-sniffing
dog on a homeowner’s porch to investigate the contents of the home is a search that exceeds the
limited permission implicitly or explicitly granted to visitors to enter upon homeowner’s property.
Id. at 5–6. Here, by contrast, police were authorized by a warrant not only to enter the home but
to conduct a complete search of the home for evidence that Newson was illegally in possession of
a firearm, including receipts for the purchase of firearms or ammunition, as well as evidence that he
was in control of the premises such as utility bills and mail. Because the officers were already
authorized to conduct a thorough search of the home, the fact that they used a dog to assist them
is, at least under the circumstances of this case, irrelevant.
The fact that police had a warrant also distinguishes this case from United States v. Whitaker,
which extended Jardines to the use of a drug-sniffing dog in the hallway outside the door of an
apartment. 820 F.3d 849 (7th Cir. 2016). Instead of Jardines and Whitaker, this case is controlled
by Illinois v. Carbanes, 543 U.S. 405 (2005). In Carbanes, the Court held that law enforcement
officers did not conduct an illegal search when they allowed a trained drug-detecting dog to walk
around a motorist’s car during a traffic stop. As long as the use of the dog did not prolong the stop
beyond the time reasonably required to issue a traffic ticket or warning, the Court held “[a]ny
intrusion on respondent's privacy expectations does not rise to the level of a constitutionally
cognizable infringement.” Id. at 409. In so ruling, the Court reaffirmed its view of “a canine sniff
by a well-trained narcotics-detection dog as ‘sui generis’ because it ‘discloses only the presence or
absence of narcotics, a contraband item.’” Id. (quoting United States v. Place, 462 U.S. 696, 707
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(1983)). The use of such a dog, the Court held, did not implicate Fourth Amendment concerns
because “any interest in possessing contraband cannot be deemed ‘legitimate,’ and thus,
governmental conduct that only reveals the possession of contraband ‘compromises no legitimate
privacy interest.’” Id. at 408 (quoting United States v. Jacobsen, 466 U.S. 109, 123 (1984)); see
also Peals v. Terre Haute Police Dept., 535 F.3d 621, 628 (7th Cir. 2008) (holding that “K–9 units
trained to detect contraband do not conduct a search when they sniff in an area where they are
lawfully present”).
It is true, as Newson claims, that the warrant obtained by Officer Lopez did not authorize
him to search for drugs. An officer executing a search warrant, however, is not limited to seizing
only those items specifically named in the warrant. Such an officer can also seize “evidence that,
although not described in the warrant, is subject to seizure under the plain view doctrine.” Russell
v. Harms, 397 U.S. 458, 465 (7th Cir. 2005). “The plain view doctrine applies if the officer has a
legal right to be in the place from where he sees the object subject to seizure, a lawful right of access
to the object itself, and if the object's incriminating nature is immediately apparent.” Id. (internal
quotations and brackets omitted). The warrant in this case clearly authorized the officers to look
inside the box where the marijuana was found since that is a place where a firearm, or many of the
other items the warrant authorized the officers to seize, such as cleaning kits, holsters, ammunition,
etc., may have been located. Indeed, the firearm police were searching for was later found in a trash
can in the basement. The fact that Kenny indicated the presence of drugs in the box on the stairs did
not render the location off-limits in the search the officers were authorized to conduct.
It is true that police may not bring a drug detection dog along on the search in order to
broaden its scope beyond what is authorized by the warrant. In other words, if the dog indicated the
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presence of drugs in a location the officers were not otherwise authorized to search, the plain view
doctrine would not allow the officers to search that location. The fact that the odor is plainly
perceptible to the dog doesn’t make it plainly perceptible to the dog’s handler. See United States
v. Thomas, 757 F.2d 1359, 1367 (2d Cir. 1985) (noting that “the officers' use of a dog is not a mere
improvement of their sense of smell, as ordinary eyeglasses improve vision, but is a significant
enhancement accomplished by a different, and far superior, sensory instrument”). Plain view refers
to plain view using human senses, not those of a highly trained dog. The dog’s indication might,
however, provide the officers with probable cause to obtain a second warrant that would authorize
a broader search. Here, there was no need to seek a second warrant since the warrant police already
had clearly allowed them to look inside the box.
For all of these reasons, I conclude that Officers Lopez and Marshall did not violate
Newson’s rights by bringing Kenny along when they executed the search warrant on his residence.
This is especially true in light of the officers’ explanation that Kenny was brought to the search
because of his ability to detect firearms and explosives, as well as drugs, and Officer Marshall gave
Kenny the verbal command and specific scent to search for a firearm. Finally, even if bringing Kenny
did constitute a violation of Newson’s rights, the absence of any clear law on the issue would entitle
the officers to immunity from liability. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding
that “government officials performing discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known”); Sutterfield v. City of Milwaukee, 751 F.3d
542, 572 (7th Cir. 2014) (holding police officers immune from liability under § 1983 for warrantless

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entry of home under belief that occupant was going to harm himself). Newson’s claim concerning
the search of his home is therefore dismissed.
B. Probable Cause Determination Was Timely
Newson also claims that his Fourth Amendment rights by failing to have a judicial
determination of probable cause within 48 hours of his arrest. The Fourth Amendment requires a
timely judicial determination of probable cause following a warrantless arrest. Gerstein v. Pugh, 420
U.S. 103, 114 (1975). A judicial probable cause determination within 48 hours of arrest will be
presumed timely. Cty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Newson claims that
his Fourth Amendment rights were violated when no probable cause determination was made within
48 hours of his arrest.
That claim has already been rejected by this court. See Order Granting Milwaukee County’s
Motion for Summ. J., ECF No. 39 at 5. Nevertheless, the court will construe this as Newson’s
request to reconsider its ruling. The law of the case governs a district court’s discretion to
reconsider a previous ruling within the same litigation if there is a compelling reason, such as a
change in the law that makes an earlier ruling erroneous. Santamarina v. Sears, 466 F.3d 570, 572
(2006); see also Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (explaining
that “a court has the power to revisit prior decisions of its own . . . although as a rule, courts should
be loathe to do so in the absence of extraordinary circumstances . . .”). Newson fails to point to any
extraordinary circumstances to justify the court’s reconsideration on Newson’s claim that he did not
receive a prompt judicial determination of probable cause after arrest. In addition, any delay in the
probable cause determination cannot be attributed to either of the remaining defendants. Officer
Marshall was not the arresting officer, and the undisputed evidence establishes that Officer Lopez
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submitted his probable cause statement the same day Newson was taken into custody. It thus
follows that this claim fails as well.
III. CONCLUSION
For the reasons stated above, the court finds that Newson’s claims fail as a matter of law and
even if they did not, defendants would be entitled to qualified immunity. Defendants Lopez and
Marshall’s motion for summary judgment (ECF No. 54) is GRANTED and Newson’s motion for
summary judgment (ECF No. 60) is DENIED. Newson’s claims against Lopez and Marshall are
DISMISSED. The Clerk is instructed to enter judgment in accordance with this order and the
previous order granting summary judgment to Milwaukee County (ECF No. 39).
Dated this 8th

day of February, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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