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KIRKMAN v. LATKOWSKI

July 9, 1991

MARSHA KIRKMAN, in her own capacity and as guardian for MARLON KIRKMAN, a minor and INDYA KIRKMAN, a minor, Plaintiffs,
v.
EILEEN LATKOWSKI, # 37842, Chicago Police Officer, Defendant


James F. Holderman, United States District Judge.


The opinion of the court was delivered by: HOLDERMAN

JAMES F. HOLDERMAN, UNITED STATES DISTRICT JUDGE

 Defendant Eileen Latkowski, a Chicago police officer, has moved for summary judgment on plaintiffs Marlon and Indya Kirkman's Fourth Amendment vehicle search claims alleged in Count II of plaintiffs' amended complaint.

 Under Federal Rules of Civil Procedure 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment the evidence of the non-movant must be believed, and all justifiable inferences must be drawn in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986).

 It is undisputed that at the time of the automobile entry in question, Marlon and Indya Kirkman, two children aged sixteen and three years respectively, did not own the automobile they were sitting in. Their mother, Marsha Kirkman, who had left the children in the automobile for a brief while, solely owned the car.

 I. Fourth Amendment Interests

 Defendant asserts that under Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), the children lacked a sufficient privacy interest in their mother's automobile to have suffered a Fourth Amendment violation from its search. Rakas, however, involved adult passengers occupying a car which they neither owned nor leased. 439 U.S. at 129-130, 140, 99 S. Ct. at 423, 429. The Court held that the passengers in Rakas lacked a sufficient property or possessory interest in the automobile to bring a Fourth Amendment claim. 439 U.S. at 148, 99 S. Ct. at 433.

 In this case, however, Marlon and Indya Kirkman were not simply adult passengers, riding in a car owned by a friend. They were the minor children of Marsha Kirkman, owner of the automobile which was searched. This court will not hold as a matter of law that the children lack a sufficient interest in their mother's automobile to assert any sort of Fourth Amendment claim simply because they are too young to hold title to the automobile. Such a holding would strip all minors riding in or driving their family's automobile of Fourth Amendment protection.

 This court's holding is supported by Rakas, when the court noted that "capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." 439 U.S. at 143, 99 S. Ct. at 430, citing Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512, 19 L. Ed. 2d 576 (1967).

 Defendant has moved for summary judgment on the Fourth Amendment privacy claims based solely on the fact that Marlon and Indya Kirkman, unlike their mother, neither owned nor drove the automobile in question. That basis alone is insufficient to grant defendant's motion. Unlike the petitioners in Rakas, there remains in this case a genuine issue of material fact as to whether Marlon and Indya Kirkman "could legitimately expect privacy in the areas which were the subject of the search and seizure. . . ." Rakas, 439 U.S. at 149, 99 S. Ct. at 433.

 II. Qualified Immunity

 Under the doctrine of qualified immunity, "public officials performing discretionary functions are protected against suits for damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Doe v. Bobbitt, 881 F.2d 510, 511 (7th Cir. 1989), citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). This standard requires that "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987).

 Defendant asserts that as of May 6, 1989, the time of the incident alleged, it was not clearly established either that passengers had a protected Fourth Amendment right in the passenger compartments of a car, or that minor children ages three and sixteen had a reasonable expectation of privacy in a car. The court agrees that as of May 6, 1989 it was not clearly established that minor ...


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