House v. Cleland et al

Filing 57

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph on 4/27/2021 granting 33 Motion for Partial Summary Judgment. (cc: all counsel)(llc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHARLES A. HOUSE,
Plaintiff,
v.

Case No. 19-CV-397

SCOTT N. CLELAND, ANDREW MATSON,
DAVID ARVAI, and BRYANT PETERSON,
Defendants.
DECISION AND ORDER ON DEFENDANTS’
MOTION FOR PARTIAL SUMMARY JUDGMENT
Charles A. House sues City of Racine Police Officers Scott Keland1, Andrew
Matson, David Arvai, and Bryant Petersen under 42 U.S.C. § 1983. House alleges that the
officers violated his rights under the Fourth Amendment when they searched his vehicle,
seized his cell phones, and falsely arrested him without probable cause. The defendant
officers move for partial summary judgment, moving for dismissal of several of House’s
constitutional claims. For the reasons explained below, the defendants’ motion for partial
summary judgment is granted.
FACTS
As an initial matter, House’s response to the defendants’ proposed findings of fact
fail to comply with Civil L. R. 56(b)(2)(B)(i) (E.D. Wis.). (Pl.’s Resp. to Defs. Proposed
Findings of Fact (“DPFOF”), Docket # 51-2.) The Local Rules require the non-movant to
reproduce each numbered paragraph in the movant’s statement of facts, followed by a
House misspells two of the defendant officers’ names in his amended complaint. Officer Scott Cleland’s
name is properly spelled “Keland” (Answer, Docket # 14) and Officer Bryant Peterson’s name is properly
spelled “Petersen” (Answer, Docket # 13). I will use the correct spellings of the officers’ names.

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response to each paragraph with specific references to the record. House’s responses,
however, either give a general objection to a section of the defendants’ proposed facts
(without tying it to a specific numbered fact) or provide an objection without a proper
citation to the record. (See, e.g., id. at 7, ¶ 49 where House cites generally to the “Keland
Dep.”) House also cites to evidence that is not in the record. For example, House cites to
the “Matson Dep.” at page 88 in support of one of his responses. (Id. at 7, ¶ 54.) All House
provides in support of his opposition brief, however, are several unauthenticated pages
purportedly from two depositions (of Officers Matson and Keland). It is entirely unclear
which pages belong to which witness. (Docket # 51-1; Docket # 51-4 through Docket # 5110.) However, there is no page 88 amongst the pages provided. (Id.)
“‘[I]t is clear that the decision whether to apply the [local rules] strictly or to overlook
any transgression is one left to the district court’s discretion.’” Stevo v. Frasor, 662 F.3d 880,
887 (7th Cir. 2011) (quoting Little v. Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995)).
House is represented by counsel in this matter. There is absolutely no excuse for counsel to
violate the local rules in this manner. Rather than granting the defendants’ motion solely on
procedural grounds, however, I will analyze the merits of the motion, making as much
sense as I can of House’s submissions.
In February 2017, Officer Andrew Matson was employed as an investigator by the
Racine Police Department’s (“RPD”) Special Investigations Unit (“SIU”) Drug
Enforcement task force. (DPFOF ¶ 8, Docket # 35 and Pl.’s Resp. to DPFOF at 3.) Officer
Matson was responsible for patrolling high crime areas and investigating vice-related crimes,
including, but not limited to, offenses surrounding the trafficking of illegal drugs, narcotics,
gang-related offenses, and weapons. (Id. ¶ 9.) Based on Officer Matson’s assignment to the
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SIU, he was familiar with the area of Eleventh Street and Hilker Place and knew it to be an
area for trafficking of controlled substances, robberies, and shootings. (Id. ¶¶ 11–12.) Officer
Matson was also familiar with House, who was known to traffic controlled substances in the
area of Eleventh Street and Hilker Place. (Id. ¶ 13.) Officer Matson avers that in his 18-year
tenure with the RPD, he personally witnessed House participating in what he believed to be
trafficking of illegal narcotics. (Declaration of Andrew Matson (“Matson Decl.”) ¶ 5,
Docket # 37.)
Sometime prior to February 10, 2017, Officer Matson received information from a
confidential informant (“CI”) that House, who is known by the alias “Hi-C,” was selling
heroin from the area of Eleventh Street and Hilker Place. (DPFOF ¶ 16.) Officer Matson
avers that he knew the CI to be a reliable source of information as the CI had provided
information that contributed to numerous arrests for drug related offenses in the past.
(Matson Decl. ¶ 6.) Based on the information from the CI, as well as Officer Matson’s
knowledge and experience with House and the area of Eleventh Street and Hilker Place, he
began investigating House. (DPFOF ¶ 18 and Pl.’s Resp. ¶ 18.) Officer Matson conducted
surveillance of House and observed him operating and occupying a 2004 Cadillac Escalade
near the area of Eleventh Street and Hilker Place. (Id. ¶¶ 19–20.) During this surveillance,
Officer Matson observed House having brief contacts with people inside the 2004 Cadillac
Escalade. (Id. ¶ 21.) Officer Matson knows, based on his training and experience
investigating street level drug trafficking, that dealers often have brief contacts with people
on the street or in vehicles. (Id. ¶ 22.)
During Officer Matson’s surveillance, he observed House going from the 2004
Cadillac Escalade to the garbage cans of a residence at the northwest corner of 1020
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Eleventh Street. (Id. ¶ 23.) Officer Matson observed House take an item out of a garbage can
and place it back into the garbage can; based on his observation, Officer Matson did not
believe that the items House was handling were actually garbage. (Id. ¶¶ 24–25.) Officer
Matson knew from his prior experience with House that he had used garbage cans located
outside of the residence to stash narcotics. (Matson Decl. ¶ 12.) Officer Matson checked
RPD and Department of Transportation records and determined that House lists his
residence as 1020 Eleventh Street and the vehicle he was occupying was registered to either
House or the residence. (DPFOF ¶ 31.)2
During Officer Matson’s investigation, he was contacted by the CI who indicated
that House was selling drugs at the intersection of Eleventh Street and Hilker Place. (Id. ¶
32.) The CI stated that drug transactions were taking place inside of the vehicle that House
was observed occupying. (Id. ¶ 33.) The CI also indicated that House was stashing drugs
near the garbage cans at the rear of the residence located at 1020 Eleventh Street. (Id. ¶ 34.)
On February 10, 2017, Officer Matson was again conducting surveillance in the area
of Eleventh Street and Hilker Place when he observed the 2004 Cadillac Escalade parked
near the residence located at 1020 Eleventh Street. (Id. ¶ 35.) Officer Matson observed
House exit the residence through the back door carrying a white box. (Id. ¶ 36.) Officer
Matson observed House place the white box into the garbage can and retrieve a red box,
later identified as a Cheezit Cracker box. (Id. ¶ 37.) It appeared to Officer Matson that
House had placed something inside the red box and then placed the red box back into the
garbage can. (Id. ¶ 38.)
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House disputes this fact, stating that Officer Matson testified that House lives in Milwaukee and that Officer
Matson believed that House did not have an expectation of privacy at the Eleventh Street residence. (Pl.’s
Resp. to DPFOF at 5, ¶ 3.) However, the deposition pages House cites to in support of this response are not in
the record.

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Officer Matson called RPD officers Keland, Arvai, and Petersen to assist with the
investigation. (Id. ¶ 40.) Officer Keland was on routine patrol at the time he was contacted
by Officer Matson. (Id. ¶ 41.) Officer Matson informed Officer Keland that he had received
information from a CI that House was trafficking controlled substances in the area of
Eleventh Street and Hilker Place. (Id. ¶ 42.) Based on prior police contacts, Officer Keland
was familiar with House, House’s son Jeffrey, and their family being associated with 1020
Eleventh Street. (Id. ¶ 43.) Officer Matson also informed Officer Keland of what he observed
while surveilling House. (Id. ¶ 48.)
Officer Keland contacted Officer Arvai and requested assistance with the House
investigation. (Id. ¶ 49.) At Officer Matson’s request, Officers Arvai, Petersen, and Keland
responded to the area of Eleventh Street and Hilker Place to make contact with the
suspicious vehicle’s occupant. (Id. ¶ 50.) At approximately 2:51 p.m., Officer Matson
advised that he wanted the suspicious vehicle stopped and the individual inside detained in
handcuffs as he believed the person was engaged in illegal narcotics activity. (Id. ¶ 53.)
Officer Petersen responded to the scene in his squad car and approached the vehicle.
(Id. ¶ 54.) Officer Arvai was in front of Officer Petersen in his squad and initiated the stop of
House’s vehicle. (Id. ¶ 55.) Once behind the vehicle, Officer Arvai activated his lights, exited
the squad, and approached the vehicle. (Id. ¶ 58.) Officer Petersen observed House in the
driver’s seat talking on a cell phone. (Id. ¶ 61.) Officer Arvai opened the driver’s door and
identified himself as a police officer and spoke to House. (Id. ¶ 64.) House stated that he was
waiting for a ride to come pick him up. (Id. ¶ 65.) Officer Arvai ordered House to exit the
vehicle and House complied. (Id. ¶ 67.) As House exited the vehicle, Officer Petersen
removed the cell phone from House’s hand. (Id.)
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A second cell phone was found on House’s person and both phones were turned over
to Officer Matson. (Id. ¶ 68.) House was detained in handcuffs at Officer Matson’s request.
(Id. ¶ 69.) Officer Keland told House that he was not under arrest, but was being detained so
Officer Matson could speak with him regarding an investigation. (Id. ¶ 70.) House testified
that an officer asked whether he could search House and his vehicle and House agreed.
(Declaration of Jasmyne M. Baynard ¶ 2, Ex. A, Deposition of Charles House at 14, Docket
# 40-1.) Officer Matson arrived on the scene and House was escorted to the back of his
squad car for questioning. (DPFOF ¶ 73.) House testified that Officer Matson said that he
wanted to search House again, but this time House refused. (House Dep. at 14–16.) Officer
Matson ultimately did search House and located $120.00, but no controlled substances.
(DPFOF ¶ 76.)
Officer Matson requested that Officer Arvai’s police canine conduct an open-air sniff
around the vehicle. (Id. ¶ 77.) The canine began his open-air sniff at approximately 2:56
p.m. and alerted at the seam between the passenger side front and back doors, indicating the
presence of narcotics. (Id. ¶¶ 78–80.) Officer Arvai informed Officer Matson of the canine’s
alert and at Officer Matson’s request, Officers Petersen and Arvai searched the inside of
House’s vehicle and found $1,923.00, two pairs of scissors, and a small piece of tin foil
inside the center console. (Id. ¶¶ 81–82.) Officer Matson knew from his training and
experience that scissors and foil are commonly used in the trafficking of controlled
substances, specifically heroin, which is packaged in tin foil for resale purposes. (Id. ¶ 85.)
Officer Petersen also searched the breast pocket of a jacket located in the back seat
and found a small plastic baggie containing blue pills, which he identified as prescription
Viagra. (Id. ¶ 83.) House could not provide a prescription for the pills. (Id. ¶ 84.)
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Officer Matson requested that Officer Keland search the area of the garbage cans
outside of the residence located at 1020 Eleventh Street. (Id. ¶ 88.) Officer Keland found a
sandwich style baggie in a red cardboard box containing a brown powder substance that
Officer Keland believed to be heroin. (Id. ¶¶ 91–95.) House was arrested and transported to
the Racine County Jail. (Id. ¶ 99.)
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). “Material facts” are those under the
applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477
U.S. at 248. The mere existence of some factual dispute does not defeat a summary
judgment motion. A dispute over a “material fact” is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id.
In evaluating a motion for summary judgment, the court must draw all inferences in
a light most favorable to the nonmovant. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). However, when the nonmovant is the party with the
ultimate burden of proof at trial, that party retains its burden of producing evidence which
would support a reasonable jury verdict. Celotex Corp., 477 U.S. at 324. Evidence relied upon
must be of a type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985
(7th Cir. 2009). To survive summary judgment, a party cannot rely on his pleadings and
“must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477
U.S. at 248. “In short, ‘summary judgment is appropriate if, on the record as a whole, a
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rational trier of fact could not find for the non-moving party.’” Durkin v. Equifax Check
Services, Inc., 406 F.3d 410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. & Assoc., Inc., 330
F.3d 991, 994 (7th Cir. 2003)).
ANALYSIS
House alleges that the defendant officers violated his rights under the Fourth and
Fourteenth Amendments by seizing his cell phones and searching his vehicle and garbage
cans. (Am. Compl.) House further alleges that he was arrested without probable cause on
February 10, 2017, resulting in his imprisonment until March 31, 2017. (Id. ¶ 38.) The
defendants move for summary judgment dismissing all of House’s claims, with the
exception of the search of the garbage cans near the house. (Defs.’ Br. at 2, Docket # 34.)
House sues the officers pursuant to 42 U.S.C. § 1983. To succeed on a § 1983 claim,
House must prove (1) the deprivation of a right secured by the Constitution or federal law
and (2) that defendants were acting under color of state law. Wilson v. Warren Cty., Illinois,
830 F.3d 464, 468 (7th Cir. 2016). House alleges that the defendant officers violated his
rights under the Fourth and Fourteenth Amendments when they allegedly seized his cell
phone and searched his vehicle without reasonable suspicion or probable cause and arrested
him without probable cause. I will address each claim in turn.
1.

Seizure of Cell Phones and Search of Vehicle

House alleges that the defendant officers violated § 1983 by seizing his two cell
phones and searching his vehicle without a warrant. (Am. Compl. ¶¶ 14–19.) Pursuant to
Terry v. Ohio, 392 U.S. 1 (1968), an officer may, consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion
that criminal activity is afoot. Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry, 392
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U.S. at 30). The Supreme Court has also recognized an exception to the warrant
requirement for seizures of property to allow brief warrantless detentions of personal
property on the basis of a “reasonable, articulable suspicion, premised on objective facts,
that [said property] contains contraband or evidence of a crime.” United States v. Place, 462
U.S. 696, 702 (1983). However, “[i]f the officer does not learn facts rising to the level of
probable cause, the individual must be allowed to go on his way.” Wardlow, 528 U.S. at
126. While “reasonable suspicion” is “a less demanding standard than probable cause and
requires a showing considerably less than preponderance of the evidence, the Fourth
Amendment requires at least a minimal level of objective justification for making the stop.”
Id. The officer must be able to articulate more than an “inchoate and unparticularized
suspicion or ‘hunch’” of criminal activity. Id. at 123–24 (quoting Terry, 392 U.S. at 27).
In determining reasonable suspicion, the Court looks “at the ‘totality of the
circumstances’ of each case to see whether the detaining officer has a ‘particularized and
objective basis’ for suspecting legal wrongdoing.” United States v. Eymann, 962 F.3d 273, 282
(7th Cir. 2020) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). Ultimately, the
determination of reasonable suspicion “must be based on commonsense judgments and
inferences about human behavior.” Id. (quoting Wardlow, 528 U.S. at 125).
Under the undisputed facts of this case, the defendant officers undoubtedly had
reasonable suspicion to conduct a Terry stop of House and seize his cell phones. Officer
Matson was familiar with House and knew him to traffic controlled substances in the area
of Eleventh Street and Hilker Place. (DPFOF ¶ 13.) Officer Matson received information
from a CI that House was selling heroin from the area of Eleventh Street and Hilker Place.
(Id. ¶ 16.) Officer Matson surveilled House and observed him having brief contacts with
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people inside of a 2004 Cadillac Escalade near Eleventh Street and Hilker Place, consistent
with street level drug trafficking behavior. (Id. ¶¶ 19–22.) Officer Matson had prior
experience with House using garbage cans outside of a residence to stash narcotics, and
observed House take an item out of a garbage can at the residence and place it back into the
can. (Id. ¶¶ 23–24 and Matson Decl. ¶ 12.)
During the course of his investigation, Officer Matson learned from the CI that
House was selling drugs at the intersection of Eleventh Street and Hilker Place, that the
drugs transactions were taking place inside of the vehicle that House was observed
occupying, and that House was stashing drugs near the garbage cans at the rear of the
residence located at 1020 Eleventh Street. (DPFOF ¶¶ 32–34.)
On the day of House’s arrest, Officer Matson was surveilling the area of Eleventh
Street and Hilker Place when he observed the 2004 Cadillac Escalade parked near the
residence located at 1020 Eleventh Street, saw House exit the residence through the back
door carrying a white box, saw House place the white box into the garbage can and retrieve
a red box, and place something into the red box and place the red box back into the garbage
can. (Id. ¶¶ 35–38.) Given the facts known to Officer Matson at the time of the Terry stop of
House, a reasonable officer would have believed criminal activity was afoot.
Officer Matson then called officers Keland, Arvai, and Petersen for backup and
informed these officers of what he observed while surveilling House. (Id. ¶¶ 40–50.) Officer
Matson ordered officers Keland, Arvai, and Petersen to make contact with House. (Id. ¶ 53.)
House was detained and handcuffed for officer safety (Declaration of Scott Keland ¶ 11,
Docket # 36) and placed in the back of Officer Matson’s squad car for questioning (id. ¶ 12).

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House was searched and two cell phones were removed from his person. (DPFOF ¶¶ 67–
68.)
Approximately five minutes after House was stopped, Officer Arvai’s police canine
conducted an open-air sniff of the vehicle and positively alerted, indicating the presence of
narcotics. (Declaration of David Arvai ¶¶ 5, 9–10, Docket # 38.) “A dog sniff conducted
during a concededly lawful traffic stop that reveals no information other than the location of
a substance that no individual has any right to possess does not violate the Fourth
Amendment.” Illinois v. Caballes, 543 U.S. 405, 410 (2005); see also United States v. Franklin,
547 F.3d 726, 733 (7th Cir. 2008) (“And a police officer’s use of a drug-sniffing dog around
the exterior of a car is not an illegal search under the Fourth Amendment.”). Once the drug
dog alerted to the presence of drugs, the defendant officers had probable cause to search the
car. See United States v. Martin, 422 F.3d 597, 602 (7th Cir. 2005).
House also challenges the initial seizure of the two cell phones found on his person.
Although the defendants state that House alleges his two cell phones were seized and
searched (Defs.’ Br. at 5), House only complains of the seizure of his two cell phones.
Moreover, the record is silent as to whether the phones were searched. Thus, I cannot speak
as to the legality of a search, if any occurred, of the cell phones after the initial seizure.
And as to the seizure, again, officers may conduct a brief, warrantless detention of
personal property if they have reasonable suspicion that the property contains evidence of a
crime. See Place, 462 U.S. at 702. For the same reasons the officers had reasonable suspicion
to conduct the Terry stop, they also had reasonable suspicion to briefly seize House’s cell
phones as the use of multiple cell phones is often associated with drug trafficking. See United
States v. Paulette, No. 14-CR-30152-1-NJR, 2015 WL 4624265, at *14 (S.D. Ill. Aug. 3, 2015)
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(“It is well-established that drug traffickers often have more than one cell phone.”). Given
the undisputed facts before me, the officers’ search of the vehicle and seizure of the two cell
phones did not violate the Fourth Amendment. House’s § 1983 claims as to the warrantless
search of the vehicle and seizure of the phones fail and summary judgment is granted to the
defendants on these claims.
2.

False Arrest Claim

House also argues that the officers falsely arrested him. To prevail on a constitutional
claim for false arrest, House must show that there was no probable cause for his arrest. See
Williams v. City of Chicago, 733 F.3d 749, 756 (7th Cir. 2013). “Probable cause is an absolute
defense to claims of wrongful or false arrest under the Fourth Amendment in section 1983
suits. In other words, if an officer has probable cause to arrest a suspect, the arrest was not
false.” Ewell v. Toney, 853 F.3d 911, 919 (7th Cir. 2017) (internal citation omitted).
Probable cause exists if “at the time of the arrest, the facts and circumstances within
the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.” Williams, 733 F.3d at 756 (internal quotation
and citation omitted). Whether probable cause exists is “‘a fluid concept that relies on the
common-sense judgment of the officers based on the totality of the circumstances.’” Id.
(quoting United States v. Reed, 443 F.3d 600, 603 (7th Cir. 2006)). In making this
determination, the Court must “‘step[ ] into the shoes of a reasonable person in the position
of the officer[,]’” id. (quoting Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)),
“considering the facts known to the officer at the time,” id. (citing Carmichael v. Village of
Palatine, 605 F.3d 451, 457 (7th Cir. 2010)). In deciding this question of law as part of a
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motion for summary judgment, I must give the non-moving party the benefit of conflicts in
the evidence about what the officers actually knew at the time. Id.
As stated above, the officers had probable cause to search House’s vehicle. During
this search, the officers found a large sum of cash and drug paraphernalia (i.e., scissors and a
small piece of tin foil) in the vehicle’s center console. (Matson Decl. ¶ 25.) Officer Matson
knew these items to be used in the packaging and sale of heroin. (Id. ¶ 26.) Given the totality
of the circumstances known to the officers at the time of House’s arrest, the officers had
probable cause to arrest House for distributing controlled substances. As such, House’s §
1983 claim for false arrest fails as a matter of law.
CONCLUSION
House alleges that the officers violated his rights under the Fourth Amendment
when they searched his vehicle, seized his cell phones, and falsely arrested him without
probable cause. On the undisputed facts of this case, these § 1983 claims fail. The
defendants’ motion for partial summary judgment is granted.
ORDER
NOW, THEREFORE, IT IS ORDERED that the defendants’ motion for partial
summary judgment (Docket # 33) is GRANTED.
The clerk of court will contact the parties to set a status conference regarding
scheduling trial of this case as to the plaintiff’s remaining claim.

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Dated at Milwaukee, Wisconsin this 27th day of April, 2021.
BY THE COURT:
:

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NANCY JOSEPH
JOSEPH
OS
OS P
United States Magistrate Judge

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