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RICCI v. VILLAGE OF ARLINGTON HTS.

November 7, 1995

RANDALL RICCI, Plaintiff,
v.
VILLAGE OF ARLINGTON HEIGHTS, a Municipal Corporation, ANDREW WHOWELL and JEROME LEONARD, Defendants.



The opinion of the court was delivered by: BUCKLO

 Defendants, the Village of Arlington Heights ("the Village") and two of its police officers, Andrew Whowell and Jerome Lehnert, *fn1" have filed a motion requesting this court to enter summary judgment in their favor on the complaint filed by plaintiff, Randall Ricci. For the reasons stated below, the defendants' motion is denied in part and granted in part.

 Undisputed Facts

 On April 19, 1994, Officers Whowell and Lehnert entered the business premises of Rudeway Enterprises, a telemarketing firm run by Mr. Ricci and located in the Village. The Officers were there to arrest Daniel Dugo, an employee of Rudeway Enterprises for whom they had a warrant. According to Mr. Ricci, they were also there to gather evidence to put him out of business. *fn2" Whether true or not, defendants admit that prior to going to Rudeway, they had determined that Rudeway did not have a Village of Arlington Heights business license.

 After entering the Rudeway business premises, Officer Whowell asked Mr. Ricci whether he had a Village business license for Rudeway Enterprises, as required by the Arlington Heights Village Code of Ordinances ("the Village Code"). Mr. Ricci stated that he did not have a license. Because Mr. Ricci was operating Rudeway Enterprises without a Village business license, he was arrested and taken to the Village Police Department. He was held there for about an hour, while the police performed the necessary administrative functions, and then released on a recognizance bond.

 Mr. Ricci's wife ultimately obtained a Village business license for Rudeway Enterprises. The charge against Mr. Ricci was consequently dropped.

 Standard of Review

 Summary judgment disposes of a claim before trial in those cases where a trial is unnecessary and will only result in delay and expense. Ford Motor Credit Co. v. Devalk Lincoln-Mercury, Inc., 600 F. Supp. 1547, 1549 (N.D. Ill. 1985). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). A genuine issue of fact exists when a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Count I: The Search

 Mr. Ricci contends that Officer Whowell engaged in an unconstitutional search by reading his business documents on his premises without a warrant. The only evidence that Mr. Ricci points to in support of this claim is his statement that he saw Officer Whowell pick up and inspect a 3x5 index card off a desk. Mr. Ricci says the card contained information about a client. Mr. Ricci says he saw the officer pick up the card as they were walking toward him.

 In reading his index card, the defendant officers may or may not have conducted a "search" within the meaning of the Fourth Amendment. To establish that a search occurred, Mr. Ricci bears the burden of proving that he had a legitimate expectation of privacy in the contents of the index card. See, e.g., United States v. Myers, 46 F.3d 668, 669 (7th Cir.) ("A search within the meaning of the Fourth Amendment occurs only when a reasonable expectation of privacy is infringed."), cert. denied, 133 L. Ed. 2d 144, 116 S. Ct. 213 (1995); United States v. Duprey, 895 F.2d 303, 309 (7th Cir. 1989) ("A defendant objecting to the search of a particular area bears the burden of proving a legitimate expectation of privacy in the area searched."), cert. denied, 495 U.S. 906, 109 L. Ed. 2d 291, 110 S. Ct. 1927 (1990). "A reasonable expectation of privacy exists when '(1) the complainant exhibits an actual (subjective) expectation of privacy and, (2) the expectation is one that society is prepared to recognize as "reasonable."'" United States v. Ruth, 65 F.3d 599, 604 (7th Cir. 1995) (quoting, Myers, supra, 46 F.3d at 669).

  Even if Mr. Ricci establishes that a search occurred, in order to get more than nominal damages he must establish an actual injury. See Memphis Community School District v. Stachura, 477 U.S. 299, 308 n.12, 91 L. Ed. 2d 249, 106 S. Ct. 2537 (1986) ("Nominal damages . . . are the appropriate means of 'vindicating' rights whose deprivation has not caused actual, provable injury."); Carey v. Piphus, 435 U.S. 247, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978) (damages may not be presumed for violations of due process clause). Although Mr. Ricci has alleged injury resulting from his arrest, he has not alleged any injury resulting from defendants reading his index card. Therefore, because I rule for the defendants on his other claims, Mr. Ricci will likely only receive nominal damages at trial. Cf. Cartwright v. Stamper, 7 F.3d 106 (7th Cir. 1993) (plaintiff alleging emotional distress from search in violation of the Fourth Amendment received only $ 1 from jury). *fn3" Despite ...


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