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Lowrance v. Pflueger

decided: July 10, 1989.

WILLIAM TOLLIE LOWRANCE, PLAINTIFF-APPELLANT
v.
GEORGE PFLUEGER, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 85 C 1492 -- John W. Reynolds, Judge.

Wood, Jr., Posner and Coffey, Circuit Judges.

Author: Coffey

COFFEY, Circuit Judge

The plaintiff-appellant William Lowrance filed a § 1983 action alleging he was arrested and detained without probable cause in violation of the fourth and fourteenth amendments of the United States Constitution. He appeals the district court's grant of summary judgment in favor of the Benton County, Tennessee, sheriff and two Kenosha, Wisconsin, police officers involved in the arrest. We affirm.

I.

On Thursday, December 1, 1983, Merian Lowrance, the plaintiff-appellant's wife, filed for divorce in the Chancery Court of Benton County, Tennessee. On the same day, Mrs. Lowrance obtained ex parte orders from the Tennessee Chancery Court granting her temporary custody of the Lowrances' three-year-old daughter, Heather, and restraining the plaintiff-appellant William Lowrance from "coming about, interfering with, telephoning or having any contact with the plaintiff [Mrs. Lowrance], or interfering with the custody of the minor child . . . [or] exercising unsupervised visitation with said minor child pending a hearing." On December 1, 1983, the appellant Lowrance picked up Heather from a babysitter in Benton County and took her to his parents' home in Kenosha, Wisconsin. During the afternoon or evening of December 1, 1983, Mrs. Lowrance telephoned the Benton County Sheriff, Bobby Shannon, and informed him that her husband had taken Heather and left the area. Sheriff Shannon advised Mrs. Lowrance to contact her attorney.

As of Sunday, December 4, 1983, the appellant and Heather had not returned to their home in Benton County, Tennessee. That morning, Merian Lowrance went to the Benton County Sheriff's Department and advised Sheriff Shannon that her attorney had suggested that she seek a warrant for her husband's arrest. Mrs. Lowrance advised Shannon that the appellant had taken their daughter, Heather, to Kenosha, Wisconsin, and she (Mrs. Lowrance) was fearful he would take the child to Canada. She also informed Shannon that she was having serious marital problems, a divorce was pending and that she had obtained ex parte custody and restraining orders.

Based on the information the appellant's wife provided, Sheriff Shannon typed an "Affidavit of Complaint" for Mrs. Lowrance's signature, stating as follows:

"On the above date [December 1, 1983] and while in Benton County, Tennessee, William Tollie Lowrance did unlawfully and with the intent, take Heather JoAnne Lowrance, age 3 yrs., from a babysitter in Benton County, Tennessee, and take her to the State of Wisconsin. William has made further statements to the effect that he was going to take the 3 year-old girl to Canada. William is the lawful father of Heather, however, Heather's Mother, Merian Lowrance, has been given Ex-Parte Custody of Heather by Chancellor Walton West. Furthermore a Restraining Order has been issued to be served upon William to restrain him from interfering with the custody of Heather pending a hearing."

While Sheriff Shannon typed the Affidavit of Complaint, or shortly thereafter, Mac Prichard, the Clerk of the Benton County General Sessions Court, arrived at the Sheriffs Department.*fn1 Merian Lowrance signed the Affidavit of Complaint before Prichard, who then signed the arrest warrant attached thereto. The warrant commanded the appellant's arrest on the ground "there is probable cause to believe that [the appellant committed] the offense of kidnapping a child under the age of sixteen years," in violation of Tennessee Code § 39.2-303.*fn2

In the early afternoon of December 4, 1983, the City of Kenosha, Wisconsin, Police Department received a teletype message from the Benton County, Tennessee, Sheriff's Department reciting that:

"The Benton County Sheds Department has received a warrant from the Criminal Court of Benton County, Tennessee, for the arrest of William Tillie [sic] Lowrance . . . for the offense of kidnapping a child under the age of 16 yrs. This was issued as a violation of 39-2-303 Tenn. Code. The child is a 3 year-old female with blonde hair, named Heather. She is the daughter of William Lowrance, however the child's mother, Merian Lowrance, has been granted legal custody . . . by ex parte proceedings. William Lowrance is currently at his parent's home in Kenosha at 7847 17th Avenue. He is preparing to leave for Canada. We would ask that daughter be taken into custody also and placed with Department of Human Services until she can be picked up. If you need complete affidavit on warrant please advise."

On December 4 the Kenosha, Wisconsin, Police Department command responded with a teletype message to the Benton County, Tennessee, Sheriff's Department stating the appellant's arrest warrant did not appear on the National Crime Information Center's (NCIC) computer and that the "warrant must be on NCIC files for us to pick up and hold [the appellant]." Later that afternoon, a warrant for the arrest of William Lowrance appeared on the NCIC computer. Based on the information in the NCIC computer, Kenosha Police Officers George Pflueger and Gary Sentieri arrested William Lowrance during the evening hours of December 4, 1983, and detained him in the Kenosha county jail. The appellant, after being confined overnight in jail, was released the following day on a $1,000 signature bond. Three days later, on December 8, 1983, the appellant appeared before a Kenosha County Court Commissioner, who reviewed the warrant of arrest, found it to be "defective" and quashed it. Benton County, Tennessee, subsequently dropped the charges against the appellant.*fn3

The appellant alleges in his complaint that Sheriff Shannon and Officers Pflueger and Sentieri were responsible for his arrest and detention without probable cause in violation of the fourth and fourteenth amendments of the United States Constitution. Specifically, he claims Sheriff Shannon violated his rights in making application for the arrest warrant without initially establishing the appellant's knowledge of the ex parte custody and restraining orders issued to Mrs. Lowrance. He argues Sheriff Shannon was required to establish the appellant's knowledge of the orders because "it was not a crime under Tennessee law for a lawful parent to leave the State of Tennessee to go to another state with a ...


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