Dunn, Phillip v. Levine, Elliott et al

Filing 57

ORDER granting in part and denying in part 31 Motion for Summary Judgment. Signed by District Judge Barbara B. Crabb on 9/21/2016. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PHILLIP S. DUNN,
OPINION and ORDER
Plaintiff,
15-cv-430-bbc
v.
RON SECORD, SHAWN KUDRON,
DAN ULRICH and NATHAN POKE,
Defendants.1
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Phillip Dunn is proceeding on two claims in this case: (1) in October
2014, Dan Ulrich, Nathan Poke, Shawn Kudron and Ryan Secord (all officers for the La
Crosse County Police Department) searched his home and arrested him without adequate
justification and in an unreasonable manner, in violation of the Fourth Amendment; and (2)
in December 2014, defendants Ulrich and Poke seized plaintiff without adequate
justification, in violation of the Fourth Amendment. Defendants have filed a motion for
summary judgment, dkt. #31, which is ready for review. For the reasons stated below, I am
granting the motion for summary judgment with respect to defendant Kudron and with
respect to plaintiff’s second claim. However, I am denying the motion with respect to

1

In his complaint, plaintiff named “Ryan Secord,” but defendants say that Secord’s
first name is Ron. Because plaintiff does not dispute defendants’ representation, I have
amended the caption to reflect the correct name.
1

plaintiff’s claim that defendants Secord, Ulrich and Poke entered his home without a
warrant, kicked down his door and arrested him, in violation of the Fourth Amendment.

OPINION
A. October 2014 Search and Seizure
Plaintiff’s first claim arises out of his arrest on October 28, 2014 for drug possession.
Defendant Shawn Kudron (a captain for the La Crosse Police Department), directed
defendants Ron Secord, Dan Ulrich and Nathan Poke (police officers for the department)
to respond to a local resident’s complaint of possible drug activity at 1929 Victory Street
#13 in La Crosse, Wisconsin. After they arrived on the scene, defendants Secord, Ulrich
and Poke entered plaintiff’s home without a warrant, kicked down his bedroom door and
arrested him. Plaintiff contends that all four defendants can be held liable under the Fourth
Amendment for each of those actions.

1. Effect of state court proceedings
A threshold question is whether previous litigation has any effect on the claims in this
case. Allen v. McCurry, 449 U.S. 90, 105 (1980) (issue preclusion may apply to Fourth
Amendment issues resolved in state court). Both sides refer to a criminal prosecution against
plaintiff arising out of the evidence discovered during the October 28, 2014 search of
plaintiff’s home. However, neither side says whether plaintiff raised objections under the
Fourth Amendment during state court proceedings or, if he did, how the court ruled on those

2

objections. To the extent that the state court addressed any of the issues raised in this case,
neither side argues that the state court’s rulings should have preclusive effect, so I do not
consider that issue.

Jaskolski v. Daniels, 427 F.3d 456, 460 (7th Cir. 2005) (issue

preclusion is affirmative defense and can be waived).
Further, although plaintiff is incarcerated now, it appears to be for reasons unrelated
to this case. Again, the parties do not discuss this point, but a review of Wisconsin’s Circuit
Court Access website shows that the charges related to this case were dismissed. State v.
Dunn, No. 2014-cf-717, available at https://wcca.wicourts.gov. In any event, defendants do
not argue that plaintiff’s claims are barred by a previous conviction, so that issue is forfeited
as well. Carr v. O'Leary, 167 F.3d 1124, 1126 (7th Cir. 1999).

2. Defendant Kudron
I am granting defendants’ motion for summary judgment as to defendant Kudron.
A defendant cannot be held liable for violating the Constitution unless he participated in the
alleged conduct or otherwise caused it. Backes v. Village of Peoria Heights, Illinois, 662 F.3d
866, 869-70 (7th Cir. 2011). In this case, it is undisputed that Kudron was not present
when the other three defendants engaged in the allegedly unconstitutional conduct.
Although Kudron directed the other defendants to respond to a complaint, simply going to
a home and knocking on the door does not qualify as a “search” or “seizure” under the
Fourth Amendment. Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir.1992) ("[P]re-seizure
conduct is not subject to Fourth Amendment scrutiny."). Plaintiff does not allege that

3

Kudron told the other defendants to enter plaintiff’s home without a warrant, kick down his
door or arrest him. In fact, plaintiff does not allege that there is any way that Kudron could
have foreseen any of the events that occurred after the other defendants arrived at plaintiff’s
home. Accordingly, I see no basis for holding defendant Kudron liable for any of the alleged
conduct in this case.

3. Defendants Secord, Ulrich and Poke
The parties agree that Secord, Ulrich and Poke entered plaintiff’s home without a
warrant, kicked down his bedroom door and arrested him for drug possession. The question
is whether each of those actions was justified under the Fourth Amendment.

a. Entry into plaintiff’s home
Defendants acknowledge that generally they would need a warrant to enter a private
home, Kentucky v. King, 563 U.S. 452, 459 (2011), and that they did not have one in this
case. However, a warrant is not needed if the officers obtain consent from someone with
authority to give it. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Defendants
say that they had authority to enter the home because John Addis, a tenant at the residence,
answered the door and gave them his consent to enter.
Plaintiff does not deny that Addis had authority to give consent to a search. Rather,
he denies that Addis ever gave consent. In his declaration, plaintiff avers that Secord
admitted during the preliminary hearing in state court that he did not have permission to

4

enter plaintiff’s home. Dkt. #51 at ¶¶ 35-36. (In his brief, plaintiff raises a different
objection that any consent Addis may have given was not voluntary, dkt. #49 at 3-4, but
plaintiff cites no evidence to support that allegation, so I have not considered it.)
In response, defendants raise two objections to plaintiff’s testimony. First, they say
that it is
based upon inadmissible evidence and lacks foundation. . . . The response does
not establish that plaintiff has any personal knowledge of the subject
conversation between Addis and the officers or of the officers’ entry into the
premises. The response does not dispute that the plaintiff was in the bedroom
off the front living area this whole time.
Dfts.’ Reply to Plt.’s Resp. to Dfts.’ PFOF ¶ 19, dkt. #54. This objection is without merit.
Although it is undisputed that plaintiff was not present at the doorway when Secord spoke
to Addis, defendants do not deny that plaintiff was present at the state court hearing that
plaintiff discusses in his declaration, so plaintiff has personal knowledge of the statements
that Secord allegedly made at the hearing. Because Secord is a party to this case, the rule
against hearsay does not prohibit plaintiff from relying on any statements Secord made to
prove any fact relevant to plaintiff’s claims. Fed. R. Evid. 801(d)(2)(A). Of course, Secord
has foundation to know whether Addis gave consent, so defendants’ objection regarding lack
of foundation is misplaced.
Second, defendants say that plaintiff’s declaration “does not contradict the record of
sworn testimony supporting the proposed fact or previously sworn testimony or the state
court’s findings during the warrant process.” Dfts.' Reply to Plt.'s Resp. to Dfts.' PFOF ¶ 19,
dkt. #54. This objection is puzzling. Defendant Secord’s alleged statement that Addis did

5

not give him consent to enter obviously contradicts his other testimony that Addis did give
consent. Further, on a motion for summary judgment, I am required to view the evidence
in the light most favorable to plaintiff, Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312,
314-15 (7th Cir. 2011), so, at this stage, I must credit plaintiff’s testimony that Secord
admitted that defendants did not obtain consent, even if defendants testified on other
occasions that they did. It may be that plaintiff is misstating Secord’s testimony from the
state court hearing, but defendants have not a provided a transcript of the hearing, so there
is no way to resolve the dispute now.
Defendants raise a qualified immunity defense as well.

Under that doctrine, a

defendant cannot be held liable for money damages if it was not clearly established at the
relevant time that the defendant’s conduct violated the Constitution. Carroll v. Carman,
135 S. Ct. 348, 350 (2014). Qualified immunity does not help defendants because even
qualified immunity does not change the rule that facts must be construed in favor of the
nonmoving party on a motion for summary judgment. Board v. Farnham, 394 F.3d 469,
476 (7th Cir. 2005). If I construe the facts in plaintiff’s favor, as I am required to do, then
a reasonable jury could find that defendants did not have consent to enter plaintiff’s home.
In October 2014, it was clearly established that police officers need a warrant to enter a
home unless they meet one of the exceptions to the warrant requirement identified by the
Supreme Court. Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (“It is a basic
principle of Fourth Amendment law that searches and seizures inside a home without a
warrant are presumptively unreasonable.”) (internal quotations omitted). Because consent

6

is the only exception that defendants rely on in their motion and it is genuinely disputed
whether John Addis gave consent, I am denying defendants’ motion for summary judgment
with respect to the question whether defendants Secord, Ulrich and Poke violated plaintiff’s
Fourth Amendment rights by entering his home.

b. Entry into plaintiff’s bedroom
As I discussed in the order screening plaintiff’s claims, dkt. #9 at 7-8, the “fruit of the
poisonous tree” doctrine does not apply in civil cases. Whitwell v. Hoyt, No. 04–C–981–C,
2006 WL 469634 (W.D. Wis. Feb. 26, 2006). Accord Townes v. City of New York, 176
F.3d 138, 149 (2d Cir. 1999); Wren v. Towe, 130 F.3d 1154, 1158 (5th Cir. 1997). See
also Dyson v. Village of Midlothian, No. 12-cv-7632, 2015 WL 778850, at *7 (N.D. Ill.
Feb. 18, 2015) (“Although the Seventh Circuit has not expressly adopted the ruling in
Townes rendering the fruit of the poisonous tree doctrine inapplicable to civil suits, courts
in this Circuit appear to uniformly apply [the ruling].”). The gist of the rulings in these cases
is that one unlawful action by an officer does not taint later actions by the officer; each
action must be evaluated separately when determining whether it violated the Fourth
Amendment.

In the context of this case, this rule means that plaintiff cannot argue

successfully that the decisions to break his door down and arrest him were unlawful simply
because defendants should not have been in the house in the first place. Rather, the
question is whether defendants had adequate justification for performing those acts at the
time they occurred.

7

Just as plaintiff cannot prove that entering his bedroom was unlawful because
defendants allegedly failed to obtain consent to enter the house, defendants cannot rely on
any consent that Addis gave them to enter the house as justification for entering plaintiff’s
bedroom. United States v. Richards, 741 F.3d 843, 850 (7th Cir. 2014) (consent to enter
common area of home does not include consent to enter bedrooms). Thus, defendants’
decision to break down plaintiff’s door and forcibly enter his bedroom violated the Fourth
Amendment unless defendants can show that the decision falls into one of the exceptions
to the warrant requirement.

Defendants rely on two of those exceptions, “exigent

circumstances” and “protective sweep.”

1) exigent circumstances
Under the exigent circumstances doctrine, the question is “whether it was reasonable
for the police officers on the scene to believe, in light of the circumstances they faced, that
there was a compelling need to act and no time to obtain a warrant.” Sutterfield v. City of
Milwaukee, 751 F.3d 542, 557 (7th Cir. 2014). Exigent circumstances may exist “when
there is a danger posed to others by the occupant of a dwelling, as when the occupant is
armed and might shoot at the police or other persons” or when there is a risk of “the
imminent destruction of evidence.” Id. In this case, defendants rely on two facts in support
of a finding of exigent circumstances.
First, after entering plaintiff’s home, both paraphernalia for using illegal drugs and
substances that appeared to be illegal drugs were in plain view throughout the home. Dfts.’

8

PFOF ¶ 26 and Plt.’s Resp. to Dfts,’ PFOF ¶ 26, dkt. #54 (no dispute that “clear plastic gem
bag” was on table in living area and that bag contained “small crystal-like shards” that
appeared to methamphetamine); id. at ¶ 28 (no dispute that “several hypodermic needles”
and “a glass pipe with burn marks around it” were on table in living area); id. at ¶ 33 (no
dispute that Addis had several needles in his bedroom); id. at ¶ 51 (no dispute that small bag
of what appeared to be marijuana was in bag on couch in living room).
Second, when defendants asked Addis whether anyone else was in the home, Addis
stated that two others were in the bedroom. Id. at ¶ 42. However, when defendants tried
repeatedly to speak to the occupants of the bedroom through a closed and locked door, no
one responded. Id. at ¶¶ 55-57, 61-62. (The parties dispute whether defendants knocked
on the door. Plaintiff says that he did not answer the door because he was sleeping.)
In short, because defendants discovered illegal drugs throughout the home and the
occupants of the room were refusing to respond, defendants argue that they had a reasonable
belief that the occupants posed a safety risk or were destroying evidence.
Defendants cite several cases to support their argument, but none are on point. First,
they cite United States v. Marshall, 157 F.3d 477, 482 (7th Cir. 1998), for the proposition
that a reasonable belief about potential destruction of evidence related to a drug crime
qualifies as exigent circumstances. However, in Marshall, the question was whether exigent
circumstances justified a warrantless entry into a home, not into a single, locked bedroom.
If a suspect has access to an entire house, it is much more likely that he could dispose of
drugs by flushing them down a toilet or rinsing them down a drain. King, 563 U.S. at 461

9

(“Destruction of evidence issues probably occur most frequently in drug cases because drugs
may be easily destroyed by flushing them down a toilet or rinsing them down a drain.”). In
this case, however, defendants do not identify any reason they would have believed that
plaintiff had the ability to destroy evidence in a locked bedroom while one or more of the
defendants guarded the room and another officer obtained a warrant. Thus, I am not
persuaded by defendants’ argument that they needed to kick plaintiff’s door down because
of a concern about destruction of evidence.
With respect to safety concerns, defendants cite United States v. Kempf, 400 F.3d
501 (7th Cir. 2005), and United States v. Cantero, 995 F.2d 1407 (7th Cir. 1993), but
these cases are not helpful either. In Kempf, 400 F.3d at 502, the police entered a house
without a warrant because they believed reasonably that someone had been shot inside, facts
that bear no resemblance to this case.
In Cantero, the court did not even address any Fourth Amendment issues; rather, that
case was about sentencing. Defendants quote the statement that “drug dealers often carry
weapons to protect themselves and their large amounts of drugs and cash.” Cantero, 995
F.2d at 1412. However, even if I apply that observation to the exigent circumstances
doctrine, defendants do not develop an argument that they had a reasonable belief that
anyone in the home was a drug dealer or had a weapon. Although defendants saw drug
paraphernalia and what they believed to be illegal drugs around the home, defendants do not
allege that they viewed large quantities of drugs or that they had any other reason to believe
that the residents of the home were dealers rather than mere users.

10

In their brief, defendants say that “they knew [plaintiff] to be a player in the City’s
drug trade.”

Dkt. #37 at 8.

However, the evidence defendants cite to support that

allegation is not helpful. Defendant Ulrich says that another occupant in the home told him
that “PJ” was in the bedroom and that Ulrich knew that “PJ” was plaintiff’s “street
nickname.” Dfts.’ PFOF ¶¶ 58-59, dkt. #54. Ulrich does not say that he believed at the time
that the “PJ” in the bedroom was plaintiff, but even if he did, he does not allege that he
knew anything about past drug distribution, weapon use or violence by plaintiff. Defendant
Poke says that he “knew [plaintiff] to be involved in the use and distribution of illegal drugs,”
but he does not provide a foundation for that belief, other than to say that he had had
“contact” with plaintiff in the past. Poke Decl. ¶ 21, dkt. #35. In any event, Poke does not
say that he knew or even suspected that plaintiff was the “PJ” present in the bedroom.
Defendants cite no authority for the view that it is reasonable to believe that anyone
who uses illegal drugs is likely to use weapons. Further, defendants identify no behavior they
observed suggesting that anyone in the house posed a threat. Particularly because plaintiff
was in a locked bedroom, it is not clear why defendants would believe that there was a
“compelling need to act and no time to obtain a warrant.” Sutterfield, 751 F.3d at 557.

2) protective sweep
Alternatively, defendants argue that they were entitled to conduct a “protective
sweep” of the house. They quote the statement in United States v. Contreras, 820 F.3d 255,
268 (7th Cir. 2016), that “officers may take steps to assure themselves that the house in

11

which a suspect is being, or has just been, arrested is not harboring other persons who are
dangerous and who could unexpectedly launch an attack.”
One problem with this argument is that defendants do not say that they were
conducting an arrest at the time that they were trying to gain entry into plaintiff’s bedroom;
they were simply conducting an investigation. Second, even if I assume that officers may
conduct a protective sweep before an arrest, the purpose of conducting the sweep is to
minimize the possibility of an “ambush” from unknown occupants in the home. Maryland
v. Buie, 494 U.S. 325, 333 (1990) (“An ambush in a confined setting of unknown
configuration is more to be feared than it is in open, more familiar surroundings.”). See also
United States v. Henderson, 748 F.3d 788, 792-93 (7th Cir. 2014) (citing cases for
proposition that protective sweep is justified when there is “threat of ambush”). In this case,
defendants already knew that someone was in the room and they do not identify any way
that plaintiff could have gotten out of the room without their knowing about it, so an
ambush seems an unlikely possibility. In short, defendants have not shown as a matter of
law that they needed to conduct a protective sweep before obtaining a warrant.

3) qualified immunity
Again, defendants rely on the doctrine of qualified immunity, and again I conclude
that they are not entitled to it at this stage of the case. It was clearly established that
defendants needed a warrant to enter plaintiff’s bedroom unless they satisfied one of the
exceptions to the warrant requirement.

Because defendants have not identified any

12

exception that would apply in this case, I am denying their motion for summary judgment
as to plaintiff’s claim that they violated his Fourth Amendment rights by kicking down his
door and entering his bedroom without a warrant.

c. Arrest
After entering the bedroom, defendants Secord, Ulrich and Poke handcuffed and
arrested plaintiff for possession of illegal drugs and drug paraphernalia. Defendants include
no discussion in their briefs about their justification for the arrest, so I am denying their
motion for summary judgment as to this claim as well.

B. December 2014 Traffic Stop
On December 2, 2014, defendants Ulrich and Poke conducted a traffic stop of
plaintiff in La Crosse, Wisconsin. Defendants provide two justifications for the stop: (1)
plaintiff’s brake lamp was not working; and (2) defendant Poke was aware that plaintiff had
an outstanding warrant for his arrest. Although plaintiff questions defendants’ allegation
about his brake lamp, Plts.’ Resp. to Dfts.’ PFOF ¶¶ 106 and 110, dkt. #54, he does not
deny the existence of the arrest warrant, Plt.’s Resp. to Dfts.’ PFOF ¶¶ 102 and 109. The
parties do not discuss the reason for the warrant, but plaintiff does not identify any reason
that defendants would have to question the validity of the warrant, so I conclude that
defendants were entitled to rely on it. Bailey v. City of Chicago, 779 F.3d 689, 695 (7th
Cir. 2015) (determination whether officers’ action is legal made from facts officers knew

13

when seizure occurred).

Accordingly, I am granting defendants’ motion for summary

judgment as to this claim.

ORDER
IT IS ORDERED that
1. The motion for summary judgment filed by defendants Shawn Kudron, Ron
Secord, Dan Ulrich and Nathan Poke, dkt. #31, is GRANTED with respect to the following
claims: (1) in October 2014, defendant Kudron allegedly participated in entering plaintiff
Phillip Dunn’s home without a warrant, kicking down his door and arresting him, in
violation of the Fourth Amendment; and (2) in December 2014, defendants Ulrich and Poke
conducted a traffic stop of plaintiff, in violation of the Fourth Amendment. Plaintiff’s
complaint is DISMISSED as to these claims and as to defendant Kudron.
2. Defendants’ summary judgment motion is DENIED with respect to plaintiff’s
claims that defendants Secord, Ulrich and Poke entered his home without a warrant, kicked
his door down and arrested him, in violation of the Fourth Amendment.
Entered this 21st day of September, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

14