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October 14, 1999


The opinion of the court was delivered by: Gettleman, District Judge.



On May 27, 1997, plaintiff was eating lunch at Anthony's Pancake House when she bit down suddenly on a foreign object, chipping her tooth. Plaintiff told the waitress about the situation and went to the restroom to investigate the damage to her tooth. When she returned to the table, the waitress informed her that she had taken the salad back to the kitchen, that it had been inspected for the alleged foreign object, and that no such object had been found. Plaintiff and Konidaris, the owner of the Pancake House, got into a verbal altercation, during which plaintiff swore at Konidaris and stormed out of the restaurant. Both plaintiff and Konidaris called the police. Plaintiff attempted to re-enter the restaurant, but was denied re-entry.

Soon thereafter, City of Lockport Police Officers Wrona and Kruizenga arrived on the scene. The officers spoke to several witnesses, and Konidaris told Wrona that he wanted to sign a criminal complaint against plaintiff because she had been "yelling and screaming" and had threatened his wife. Wrona told Konidaris that yelling and screaming in a restaurant constituted disorderly conduct. Wrona placed plaintiff under arrest for disorderly conduct in violation of City of Lockport ordinance § 130.03, and told Konidaris that he would be notified of plaintiffs court date.

Once at the station, Wrona informed plaintiff that she would have to be searched. At first plaintiff refused to undergo a search, but she reluctantly agreed to be searched after Wrona told her that he would charge her with a state crime if she continued to resist. Wrona asked Officer Preikschat to conduct the search, and Preikschat took plaintiff into an adjacent room.

Preikschat asked plaintiff to lean forward against some lockers, unrolled the collar and sleeves of plaintiffs sweater, and inspected her hair. Plaintiff states in her deposition that Preikschat then proceeded to place her hands under plaintiffs sweater and to feel over plaintiffs breasts (which were unsupported by a bra) with the palms of her hands. According to plaintiff, Preikschat next put her hands inside the elastic waistband of plaintiffs pants, and used both hands to feel along plaintiffs buttocks and genital area, and along her legs. It is unclear from plaintiffs deposition testimony whether she claims that the search occurred inside or outside her pants, although plaintiff testifies that Preikschat did not place her hands in plaintiffs underwear and did not ask plaintiff to remove her pants.

Defendants state that for the purposes of this motion, they accept plaintiffs version of the search as true. Preikschat testified in her deposition, however, that she has never placed her hands inside an arrestee's clothing while conducting a search, that her hands remained outside plaintiffs sweater at all times, and that she did not search plaintiffs vaginal area.


1. Illegal Seizure (Count II)

In Count II, plaintiff alleges that she was subject to an illegal seizure in violation of § 1983. According to plaintiff, Lockport's arrest policy violates the Fourth Amendment because it allowed Wrona to effect a warrantless arrest for a misdemeanor even though he was not present when the alleged offense occurred. The challenged municipal policy resembles Illinois's law, which states, "A peace officer may arrest a person when . . . [h]e has a warrant commanding that such person be arrested; or . . . [h]e has reasonable grounds to believe that the person is committing or has committed an offense." 725 ILCS 5/107-2(1)(c).

Plaintiff notes that the Supreme Court has stated that, "[in] determining whether a particular government action violates [the Fourth Amendment], we inquire first whether the action was regarded as an unlawful search or seizure under the common law when the amendment was framed." Wyoming v. Houghton, ___ U.S. ___, ___, 119 S.Ct. 1297, 1300, 143 L.Ed.2d 408 (1999). The common law when the amendment was framed forbade warrantless arrests for misdemeanors not occurring in the presence of an officer. See John Bad Elk v. United States, 177 U.S. 529, 534, 20 S.Ct. 729, 44 L.Ed. 874 (1900) ("[A]n officer, at common law, was not authorized to make an arrest without a warrant, for a mere misdemeanor not committed in his presence."); see also United States v. Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) ("The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest.").

Defendants contend that plaintiffs claim is foreclosed by Ricci v. Arlington Heights, 116 F.3d 288 (7th Cir. 1997). In Ricci, however, the Seventh Circuit found that "[t]he arrest in the instant case comports with the common law rule" because "Ricci committed the offense in the officers' presence." Id. at 291. Moreover, the plaintiff in Ricci based his argument on the reasonableness clause of the Fourth Amendment, whereas plaintiff in the instant case bases her argument on the warrant clause, a clause the Ricci court explicitly declined ...

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