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WHITE v. O'LEARY

July 18, 1990

RICHARD WHITE, et al., Plaintiffs,
v.
MICHAEL O'LEARY, et al., Defendants


George W. Lindberg, United States District Judge.


The opinion of the court was delivered by: LINDBERG

GEORGE W. LINDBERG, UNITED STATES DISTRICT JUDGE

 Plaintiffs, Richard J. White and William I. Muraski, filed an amended complaint pursuant to 42 U.S.C. § 1983 alleging that defendants, various employees of the Illinois Department of Corrections ("DOC") and a Illinois state police officer, violated their Fourth Amendment and Illinois constitutional rights when defendants arrested plaintiffs, searched their vehicle and seized their property. Count I of plaintiffs' complaint is based upon alleged violations of plaintiffs' Fourth Amendment rights against unreasonable searches and seizures. Count II of plaintiffs' complaint is based upon Section 6 of the Illinois Constitution.

 Background

 On March 24, 1988, plaintiffs stopped their vehicle in an access road to a farm field across the highway from the minimum security unit of the Stateville Correctional Center ("Stateville"), near Joliet, Illinois. Plaintiffs were returning from an exhibition at Lewis University near Plainfield, Illinois. Plaintiffs stopped their car because of a problem with the vehicle's side window.

 Within minutes of stopping their vehicle, a Stateville vehicle with two uniformed Stateville personnel pulled behind plaintiffs' vehicle and blocked its exit. The farm field in which plaintiffs stopped is owned by DOC and is used by the DOC's prison industries for agricultural pursuits in the rehabilitation of inmates.

 Several minutes later, other DOC officers arrived. Plaintiffs were questioned, they turned over a camera which was inspected and found to be empty. Their drivers' licenses were checked and found to be O.K. A state police officer was called and after he arrived plaintiffs' vehicle was searched and a roll of film with 14 of the 24 frames exposed was seized from the car's glove box. Plaintiffs were instructed to leave. This incident lasted approximately one hour.

 The instant action was tried and both sides have moved for directed verdicts at the close of all the evidence. The court having determined as a matter of law that plaintiffs' arrests were supported by probable cause, granted defendants' motion for a directed verdict in their favor.

 Discussion

 Initially, defendants contend that plaintiffs cannot state a claim based upon Section 6 of the Illinois Constitution dealing with search and seizures because no state statute authorizes suit based upon violations of Section 6. The court disagrees. Section 6 does give rise to a cause of action against public officials or government actors who violate citizens' rights contained therein. See Kelly v. Franco, 72 Ill. App. 3d 642, 391 N.E.2d 54, 28 Ill. Dec. 855 (1979). However, Section 6 protections against unreasonable searches and seizures is coextensive with those of the Fourth Amendment and, therefore, the court need not distinguish between plaintiffs' two counts for purposes of this decision. Thornton v. University Civil Service Merit Board, 154 Ill.App. 3d 1016, , 507 N.E.2d 1262, 1266, 107 Ill. Dec. 893 (1987).

 The test for probable cause is an objective one and the arresting officer's subjective reasons or motives are relevant, if at all, only in establishing what facts the officer actually had knowledge of at the time of the arrest. U.S. v. Hope, 906 F.2d 254 (7th Cir. 1990). Under this objective test, probable cause to arrest exists if the facts and circumstances within the arresting officer's knowledge and of which he had reasonably trustworthy information are sufficient to warrant a prudent person in believing that a suspect had committed or was committing an offense. Id. A search of the persons arrested, of their vehicle and of containers found in the vehicle, incident to an arrest with probable cause, is proper. Id.

 Viewing the evidence most favorably to the plaintiffs and assuming that plaintiff White did not aim a camera at the entrance to the minimum security unit, nonetheless when requested by one of the DOC defendants, plaintiff Muraski removed a camera from the floor of the car and handed it to plaintiff White who, in turn, handed it to one of the DOC defendants. It is not controverted that upon examining the camera the DOC defendant found no film in it and gave it back to plaintiffs.

 The evidence failed to disclose why plaintiffs removed the film from the camera after taking pictures on only 14 of the 24 frames available including seven taken at Lewis University. Nonetheless, upon search of the vehicle, film was found in the vehicle's glove box. The DOC defendants seized the film and indicated that it would be processed and returned to plaintiffs at the address on their drivers' license. The film was never returned to plaintiffs.

 The evidence established that correctional officers are concerned that vehicles stopped near or at correctional facilities may be facilitating the commission of acts of intimidation or assault upon inmates or employees by photographing individuals to confirm the identity of inmates or employees marked for harassment, intimidation or assault. The evidence was, in particular, that a threat accompanied by a photograph of the employee entering his car has been used to intimidate ...


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