The opinion of the court was delivered by: Leighton, District Judge.
Plaintiff Harold Goldstein, father and next friend of Louis Goldstein,
brings this action under 42 U.S.C. § 1983 against Chris Spears and
Kenneth Tomaszek, police officers for the Village of Indian Head Park
(Village). He alleges that the actions of Spears in arresting Louis and
the actions of Tomaszek in filing a Petition for Wardship, violated
Louis' constitutional rights as guaranteed by the Fourth Amendment, the
Due Process Clause of the Fourteenth Amendment, and the Ninth and Tenth
Amendments to the United States Constitution. Jurisdiction is based on
28 U.S.C. § 1331 and 1343. For the purposes of the motion the alleged
facts are taken as true and are as follows.
Sometime in November of 1979 Louis, a minor, discovered some marijuana
on a footpath in the Village and took it to the police station. When he
presented the marijuana to Officer Spears, he was placed in custody.
Officer Spears questioned Louis in an attempt to get him to divulge
information on other activities involving narcotics which were taking
place in the Village. Louis refused to provide any information. Before
returning Louis to the custody of his father, Officer Spears made a
record of the incident stating that Louis had been taken into custody and
giving the reasons therefor. On April 28, 1980, a gun was discharged in
plaintiff's home. Officer Tomaszek investigated the report of a discharged
weapon and subsequently filed a Petition for Wardship of Louis.
On May 13, 1981 plaintiff filed an action in this court alleging that
the above described actions infringed Louis' constitutional rights in
violation of 42 U.S.C. § 1983. On October 16, 1981, the court
dismissed that complaint for failure to state a claim and granted
plaintiff leave to file an amended complaint. Plaintiff filed an amended
complaint on November 5, 1981 alleging, in essence, the same facts as the
prior complaint. As noted, the defendants have moved to dismiss the
amended complaint. Having reviewed the parties' submissions,
the court, for the following reasons, finds that plaintiff has again
failed to state a claim under 42 U.S.C. § 1983.
In order to state a claim under Section 1983, plaintiff must allege
that "(1) . . . the conduct complained of was committed by a person
acting under color of state law; and (2) . . . this conduct deprived a
person of rights, privileges, or immunities secured by the Constitution or
laws of the United States." Parratt v. Taylor, 451 U.S. 527, 101 S.Ct.
1908, 1913, 68 L.Ed.2d 420 (1981). Defendants Spears and Tomaszek were
acting in their capacity as police officers when the acts complained of
took place and thus were clearly acting "under color of state law." The
question is then, did their actions deprive Louis of rights secured by
While a juvenile may not, in some circumstances, have the same
constitutionally protected rights as an adult, see McKeiver v.
Pennsylvania, 403 U.S. 528, 533, 91 S.Ct. 1976, 1980, 29 L.Ed.2d 647
(1971), it is well settled that "neither the Fourteenth Amendment nor the
Bill of Rights is for adults alone." In re Gault, 387 U.S. 1, 13, 87
S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967). There can be no doubt that a
child, like any adult, has a substantial liberty interest in not being
physically restrained or confined unreasonably. See Parham v. J. R.,
442 U.S. 584, 600, 99 S.Ct. 2493, 2503, 61 L.Ed.2d 101 (1979); United
States ex rel. Martin v. Strasburg, 513 F. Supp. 691, 693 (S.D.N.Y.
1981). Plaintiff argues that Louis was subjected to an unreasonable
arrest. The court does not find any support for that contention in the
alleged facts. Louis was taken into custody pursuant to Sections 703-1
(1)(a) and 702-1 of the Juvenile Court Act, Ill.Rev.Stat. ch. 37 §§
701-1 et seq. These sections provide that a law enforcement officer may
take a minor into temporary custody without a warrant if the officer has
reasonable cause to believe that the minor is "delinquent, otherwise in
need of supervision, neglected or dependent. . . ." Section 702-2 defines
a delinquent minor as "any minor who prior to his 17th birthday has
violated or attempted to violate . . . any federal or state law or
municipal ordinance. . . ." The Illinois courts have interpreted the
phrase "reasonable care" in Section 703-1(1)(a) as having the same
meaning as the term "probable cause." In Interest of Foster,
66 Ill. App.3d 193, 198, 22 Ill.Dec. 947, 383 N.E.2d 755 (5th Dist.
1978). Thus, if there was probable cause to believe that Louis had
committed a crime, then Officer Spears was authorized by Illinois law to
place him in custody.
Further, if there was probable cause, Officer Spears' actions would
also be constitutional, as a warrantless arrest is constitutional where
there is probable cause to believe that a crime has been committed.
Gerstein v. Pugh, 420 U.S. 103, 113-114, 95 S.Ct. 854, 862-63, 43 L.Ed.2d
54 (1975); United States v. Mancillas, 580 F.2d 1301, 1304 (7th Cir.
1978), cert. denied, Mancillas v. United States, 439 U.S. 958, 99 S.Ct.
361, 58 L.Ed.2d 351 (1978); United States v. Dansberry, 500 F. Supp. 140,
143 (N.D.Ill. 1980). Whether or not probable cause exists depends "on the
facts of the case . . . and on the `practical considerations of everyday
life on which reasonable men, not legal technicians act.'" United States
v. Allen, 629 F.2d 51, 54 (D.C.Cir. 1980) (quoting from Bailey v. United
States, 389 F.2d 305, 309 (D.C.Cir. 1967)). In the present case, Officer
Spears was confronted by a juvenile with a controlled substance in his
possession. The court finds that he had sufficient probable cause to
believe that a crime had been committed. The fact that Louis had
innocently obtained the marijuana is irrelevant to the question of
probable cause. The statute, Ill.Rev.Stat. ch. 56 1/2 § 704, makes it
illegal to possess cannabis, and when Louis arrived at the police
station, he had marijuana in his possession. Plaintiff does not allege
that Louis was detained for an extended period of time and as there was
no "extended restraint of liberty following arrest," the right to a
hearing did not attach. Gerstein, 420 U.S. at 114, 95 S.Ct. at 863.
Accordingly, the court finds that Officer Spears' actions were
constitutionally proper and plaintiff has failed to state a claim under
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