it would be more efficient to try his claim against the City in this court. The court will thus follow Valliere, and decline to exercise pendent party jurisdiction over the City.
The defendants' other general objection to Hickombottom's complaint is that Hickombottom lacks standing for declaratory or injunctive relief. A plaintiff who seeks injunctive or declaratory relief "must show that he is in immediate danger of sustaining some direct injury" from the defendants. A plaintiff who has suffered from previous misconduct is left to damages relief only, absent a showing that he or she will be wronged again. This limitation, which stems from Article III's case and controversy requirement, has the salutary effect of maintaining "the proper balance between state and federal spheres of authority" in the administration of state criminal laws. See Robinson v. City of Chicago, 868 F.2d 959, 966-67 & n. 5 (7th Cir. 1989).
Hickombottom has not alleged that he is in immediate danger of suffering from another illegal arrest, search, or pretrial detention. He also has not alleged that he has received threats of retaliation from these defendants for filing this lawsuit. All that Hickombottom alleges is injury from past misconduct, which the court can remedy with damages. The court will thus dismiss Hickombottom's requests for injunctive and declaratory relief.
The court will now focus on each of Hickombottom's claims, beginning with those brought under § 1983. Hickombottom first alleges that the defendants' surveillance of his apartment violated the Fourth Amendment. The preliminary question is whether this amendment restricted the defendants' activities at all. The Court in Smith v. Maryland, 442 U.S. 735, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979), divided this inquiry into two questions: first, "whether the individual, by his conduct, has 'exhibited an actual (subjective) expectation of privacy,'" and second, "whether the individual's subjective expectation of privacy is 'one that society is prepared to recognize as "reasonable."'" Id. at 740, 61 L. Ed. 2d at 226 quoting Katz v. United States, 389 U.S. 347, 351, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507 (Harlan, concurring).
Hickombottom has not pleaded anything which would indicate that he had a subjective expectation of privacy in his comings and goings from his apartment. Even if Hickombottom had such an expectation, it would not be one which society is prepared to recognize as reasonable. Hickombottom has not pleaded facts which would indicate that the 6500 block of S. Yale Avenue is anything other than a usual city block on a usual city street. Anyone walking down such a street, or sitting in a car parked on such a street, would have been able to observe the traffic in and out of Hickombottom's apartment building. Police officers may observe those activities which the public is free to watch without fearing transgression of the Fourth Amendment. See United States v. Knotts, 460 U.S. 276, 282, 75 L. Ed. 2d 55, 103 S. Ct. 1081 (1983) (no expectation of privacy in traffic to and from public highway, or in movement of things from "open fields" into and out of private home).
Hickombottom next alleges that the defendants violated his rights under Fourth Amendment by arresting him without a warrant. While the Supreme Court has expressed a preference for arrest warrants when, as Hickombottom alleges here, it is feasible for police officers to obtain one in advance of arrest, the Court has never invalidated an arrest solely for lack of a warrant. See Gerstein v. Pugh, 420 U.S. 103, 113, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). Rather, an arrest violates the Fourth Amendment only if it is "unreasonable." Hickombottom has not alleged any facts which would indicate that his arrest was unreasonable. He pleads, for example, that the defendants "had reason to believe Hickombottom was involved in a crime." Complaint at par. 59(1). This suggests that the defendants had probable cause to arrest Hickombottom, one of the Fourth Amendment's essential requirements for an arrest. See Papachristou v. City of Jacksonville, 405 U.S. 156, 169, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972). Since the arrest took place in public, probable cause was all that the defendants needed before effecting the arrest. See United States v. Fernandez-Guzman, 577 F.2d 1093, 1097 (7th Cir. 1978). There also is no suggestion that the defendants arrested Hickombottom solely as a pretext to search his person. See Amador-Gonzalez v. United States, 391 F.2d 308, 314 (5th Cir. 1968).
Hickombottom thus has not alleged sufficient facts which would indicate that the defendants violated the Fourth Amendment in arresting him. He next alleges in Count 1 that the warrantless search of his person, which was incidental to his arrest, as well as the taking of his apartment keys violated the Fourth Amendment. It is well-accepted, however, that "under the Fourth and Fourteenth Amendments, an arresting officer may, without a warrant, search a person validly arrested." Michigan v. DeFillippo, 443 U.S. 31, 35, 61 L. Ed. 2d 343, 99 S. Ct. 2627 (1979). Since it appears that the defendants validly arrested Hickombottom, the court holds that their subsequent search of his person did not violate the Fourth Amendment.
The legality of the seizure of Hickombottom's keys presents thornier, but readily resolved, issues. The court begins again with the language of the Fourth Amendment: a seizure violates it only if the seizure is "unreasonable." It is not unreasonable for officers to take personal property which is in the possession of an arrestee when the arrest occurs outside of a home. Searches of an arrestee can reveal weapons, means of escape, and evidence of a crime, which authorities may seize immediately, see United States v. Edwards, 415 U.S. 800, 802-03, 39 L. Ed. 2d 771, 94 S. Ct. 1234 (1974); that officers do not immediately recognize the evidentiary or threatening nature of an item will not invalidate their seizure of it. See United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); U.S. v. Holzman, 871 F.2d 1496, 1504-05 (9th Cir. 1989); United States v. McFarland, 633 F.2d 427, 429 (5th Cir. Unit A 1980) (per curiam). The Supreme Court's decisions involving searches and seizures incident to arrest indicate a preference for bright-line rules, rather than case-by-case weighing of probable cause for search or seizure. See also United States v. Griffith, 537 F.2d 900, 905 (7th Cir. 1976) (suggesting such a rule in this context, one permitting seizure of personal effects in arrestee's custody when arrest takes place outside of home). This court believes that in light of this preference, the defendants' seizure of Hickombottom's keys was not unreasonable under the facts alleged. Hickombottom's most meritorious allegation in Count 1 is that the defendants searched his home without a warrant, in violation of the Fourth Amendment. "It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980) (footnote omitted). Nevertheless, police officers may search private property without a warrant or even probable cause upon voluntary consent, properly given. Police can rely on consent not only from the defendant, but also from "a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 165-66, 171, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974).
The issue which Hickombottom is trying to put before this court is whether the defendants properly could have relied on Renee Williams's consent in searching Hickombottom's apartment. The issue is an unsettling one, given the present posture of this case. Hickombottom does not state in his complaint why he is imprisoned at Menard. Assuredly, he did not have to provide this information at this time -- it is irrelevant to his claims. Nevertheless, if Hickombottom is serving a sentence on the conviction which resulted from the events discussed in his complaint, the court should dismiss those aspects of the complaint which indirectly attack the legality of Hickombottom's confinement. The court could not entertain these claims until Hickombottom had exhausted his remedies under 28 U.S.C. § 2254 (1982). See Preiser v. Rodriguez, 411 U.S. 475, 499, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973); Hanson v. Heckel, 791 F.2d 93, 95 (7th Cir. 1986); Greene v. Meese, 875 F.2d 639, 641-42 (7th Cir. 1989).
Because defendants Kierse, McGuire, and Tansey have admitted that Hickombottom has stated claims against them, this case will have to proceed at least as far as summary judgment. Since it is possible that Hickombottom's claim for an unconstitutional search of his apartment could be an indirect attack on his present confinement (Hickombottom alleges that the search yielded evidence which the state used against him in a criminal trial), the court believes it is prudent to reserve decision on whether Hickombottom has stated such a claim until it is clear that he is not attempting to circumvent federal habeas procedures. See Rule 12(d) (allowing court to defer ruling on motion to dismiss until as late as trial). The court will also reserve decision on the defendants' contention that they are entitled to qualified immunity on this claim. The court will dismiss Hickombottom's remaining claims in Count 1.
The court now turns to Hickombottom's other federal claims, which are in Count 3. The defendants contest only two aspects of Count 3. They first argue that Hickombottom has not stated a claim for denial of due process in their interrogation of him. The court agrees. The Fourteenth Amendment's Due Process Clause does not require the states to provide process or refrain from certain acts for the sake of process or restraint only. Rather, as a general rule, the states need provide due process only before depriving a person of life, liberty, or property. Before one can speak of a denial of due process, one must point to a deprivation.
Construing Hickombottom's complaint liberally, the court is safe in noting that Hickombottom does not allege a deprivation of his life or property on account of the defendants' interrogation of him. He may be arguing a restraint on his liberty, but it is unclear what liberty in particular. The defendants acted properly in curtailing his liberty to leave Area I (setting the length of his detention aside for the moment), as Hickombottom makes no assertion that they lacked probable cause to believe he had committed a crime. The court must presume that they acted properly in asking him questions about that crime, for the Due Process Clause does not limit interrogations in themselves. The Due Process Clause of the Fourteenth Amendment incorporates the Fifth Amendment's protections against self-incrimination, which in turn limit police from obtaining certain incriminating confessions, see Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), but Hickombottom has not alleged that the defendants obtained a statement that was used to incriminate him.
Hickombottom thus has not stated a claim of denial of due process in his interrogation. The defendants next argue that Hickombottom has not stated a claim for denial of due process in their failure to bring Hickombottom promptly before a magistrate or judge following his arrest. Although Hickombottom frames his claim in terms of a denial of due process, he really asserts a denial of his Fourth Amendment rights. See Gerstein, 420 U.S. at 114 ("the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest"); Jones v. County of DuPage, 700 F. Supp. 965, 969 (N.D.Ill. 1988). The defendants do not contest Hickombottom's right to have been brought promptly before a judicial officer, but they do challenge whether he suffered injury on account of their alleged denial of this right. A plaintiff who seeks to recover under § 1983 must demonstrate injury, in order to satisfy Article III's case or controversy and standing requirements. Abstract injuries are not enough. See Los Angeles v. Lyons, 461 U.S. 95, 101-02, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983).
Hickombottom does not allege that had he been brought before a judicial officer, he would have been released sooner. See Gramenos v. Jewel Companies, Inc., 797 F.2d 432 (7th Cir. 1986) (falsely arrested plaintiff may recover for prolonged detention under § 1983); Llaguno v. Mingey, 763 F.2d 1560 (7th Cir. 1985) (same); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1350-51 (7th Cir. 1985) (same). Nor does he allege that he would have avoided other injuries on account of a judicial officer's review of his case. See Jones, 700 F. Supp. at 968-69 (wife of arrestee who committed suicide prior to being brought before judicial officer could sue county officials under § 1983 where earlier release could have prevented suicide). From what has been alleged, it appears that the defendants had probable cause to arrest and hold Hickombottom. Even if he had been brought before a judicial officer, Hickombottom apparently would be in the same position he is in today. The court thus must dismiss Hickombottom's claim for unconstitutionally prolonged detention.
This brings the court to Hickombottom's state law claims in Count 2. There Hickombottom alleges that the defendants engaged in a civil conspiracy which is illegal under Illinois law. "The gist of a civil action based upon a conspiracy is not the conspiracy or combination in itself, but rather the overt acts committed in pursuance of the conspiracy. In other words, in order to render a conspiracy actionable, the conspiracy must be followed by a wrongful overt act in furtherance thereof." Commercial Products Corp. v. Briegel, 101 Ill. App. 2d 156, 164, 242 N.E.2d 317, 321 (1968) (citations omitted). See also Maimon v. Sisters of the Third Order, 142 Ill. App. 3d 306, 311, 491 N.E.2d 779, 783-84, 96 Ill. Dec. 500 (1986). Hickombottom alleges that there were four wrongs committed against him: (1) his arrest, (2) the taking of his keys, (3) the entry into his apartment without his permission, and (4) the search of that apartment. Hickombottom claims that these acts violated both federal and Illinois law. While the court has determined already that (1) and (2) did not violate federal law, the court is reserving decision on (3) and (4); until the court makes that decision, the court will not rule whether Hickombottom has alleged a wrongful overt act.
The defendants' remaining objection to Count 2 is that Hickombottom fails to allege the existence of a conspiracy. All that is necessary in federal court for pleading the existence of a conspiracy is an allegation that two or more persons combined to accomplish by concerted action certain purposes, whether lawful or unlawful. See DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 550 F. Supp. 1199, 1203 (N.D.Ill. 1982). Hickombottom alleges in 57-58 of his complaint that the defendants "all acting in concert reached a tacit or overt meeting of the minds" to deprive Hickombottom of his rights, and jointly took many of the acts discussed in this opinion. Hickombottom thus has alleged the existence of a conspiracy.
For the reasons given in this opinion, the court dismisses all of Hickombottom's claims against the City of Chicago under Rules 12(b)(6) and 12(h)(3). The court dismisses his claims of unconstitutional surveillance, arrest, and search of his person in Count 1, and his claims of unconstitutional interrogation and prolonged detention in Count 3, against the remaining defendants under Rule 12(b)(6). The court appoints Hickombottom counsel to assist him with his remaining claims.