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OCHANA v. FLORES

April 11, 2002

JOHN OCHANA, PLAINTIFF
V.
FERNANDO FLORES AND ANTHONY SCHWOCHER, DEFENDANTS



The opinion of the court was delivered by: James H. Alesia, Judge

        MEMORANDUM OPINION AND ORDER

Currently before the court are: (1) plaintiff's motions in limine, (2) defendants' motion in limine, (3) plaintiff's motion to take judicial notice, (4) defendants' motion for summary judgment, and (5) defendants' motion to strike. For the reasons set forth below, the court (I) grants in part and denies in part plaintiff's motions in limine, (2) grants in part and denies in part defendants' motion in limine, (3) grants in part and denies in part plaintiff's motion to take judicial notice, (4) grants defendants' motion for summary judgment, and (5) denies defendants' motion to strike.

I. BACKGROUND*fn1

In the late afternoon of June 23, 2000, plaintiff John Ochana ("Ochana") was the driver in the first vehicle stopped southbound on Kostner at the intersection with Irving Park Road, in Chicago, Illinois. Defendants Fernando Flores ("Flores") and Anthony J. Schwocher ("Schwocher") (collectively "the officers"), two Chicago police officers, were in their squad car also southbound on Kostner a few cars behind Ochana's car. The light at the intersection changed, and people started honking their horns. Someone coming northbound on Kostner told the officers that a man was either asleep at the wheel or passed out at the light, blocking traffic.

The officers activated their emergency equipment and pulled up in their squad car next to Ochana's car so that both cars were facing the same direction. Schwocher went over to Ochana's car and observed that Ochana was asleep behind the wheel with his head down. The gear of Ochana's car was in "drive," and his foot was on the brake. Ochana's window was open, and Schwocher attempted to verbally wake him, but Ochana did not respond. Schwocher reached in through the open window of Ochana's car, shifted the gear into "park," and attempted to wake him by shaking him. According to the officers, Ochana did not wake up entirely when shaken, but kept waking up and then nodding off to sleep again. According to Ochana, he woke up and was startled when the officers knocked on the door of his car, but he does not remember the officers putting the car in "park." Ochana did not know how long he was asleep, but thought it was between a second and three minutes. He did not recall whether any cars behind him were honking or whether any cars were passing in the opposite lane of traffic.

The officers told Ochana to get out of his car. According to the officers, they physically helped carry Ochana out of the car; but according to Ochana, he was physically able to get out of the car by himself. The officers escorted Ochana to the rear of the vehicles. Both officers thought Ochana was still groggy at this point.*fn2 He was awake but not alert. His speech was slurred, and the officers could not understand what he was saying. Standing at the rear of Ochana's vehicle, Schwocher asked Ochana to produce his driver's license, and either Ochana pulled out his license or one of the officers reached in his pocket and pulled it out. At this time, Ochana was still less than fully awake.

While Ochana was at the rear of the vehicles with Schwocher, Flores looked into the passenger compartment of Ochana's car and saw a backpack. The parties dispute whether the backpack was open or closed. Flores testified that he saw a clear, unlabeled "Ziplock" bag sticking out more than halfway from inside the open, unzipped backpack, while Ochana testified that his backpack was closed.*fn3 Inside the Ziplock bag was a white powdery substance. The parties dispute whether the substance had yellow flecks in it.*fn4 Flores removed the backpack from Ochana' s car. Further inside the backpack, Flores discovered a brown bottle labeled in Spanish. The bottle did not show prescription information, such as a doctor's name, a prescription number, the pharmacy, or a refill. The parties dispute whether the bottle looked like it contained a prescription.

The officers handcuffed Ochana, put him in their squad car, and took him to the police station. Ochana was charged with the following offenses: (1) obstruction of traffic, in violation of City of Chicago Municipal Code, CHI. MUN. CODE § 9-40-130, (2) possession of a controlled substance in violation of 720 ILL. COMP. STAT. 5 70/402 (1998); and (3) forging or altering a prescription, in violation of 720 ILL. COMP. STAT. 570/406 (1998). Ochana received supervision and was assessed a fifty-dollar fine on the obstruction of traffic charge. The other two charges were dismissed due to a negative laboratory result for the powdery substance in the plastic "Ziplock" bag.

Ochana filed a two-count second amended complaint pursuant to 42 U.S.C. § 1983, alleging: (1) that the officers arrested Ochana without a warrant and without probable cause for possession of a controlled substance and for forging or altering a prescription, and (2) that the officers searched Ochana's vehicle and backpack without probable cause, without a warrant, and without other lawful justification.

Currently before the court are: (1) Ochana's motions in limine, (2) the officers' motion in limine, (3) Ochana's motion to take judicial notice, (4) the officers' motion for summary judgment, and (5) the officers' motion to strike.

II. DISCUSSION

As a threshold issue, the court will dispose of the parties' motions in limine and Ochana's motion to take judicial notice, to establish what evidence is admissible and, therefore, properly before this court in support of the summary judgment motion. Both sides have also moved to strike portions of the other side's expert testimony. However, as discussed infra Sect. II.E., the court denies as moot both parties' motions regarding expert testimony.

A. Ochana's motions in limine

1. The officers' subjective beliefs

Ochana moves to bar any reference to the officers' (a) subjective beliefs as to probable cause, and (b) intent to arrest Ochana or subjective beliefs as to when Ochana was arrested. In support, Ochana argues that (a) probable cause is measured by an objective standard of a reasonable person in the position of the arresting officer, not by the arresting officer's subjective belief; and (b) when an arrest occurs is measured by an objective standard of a reasonable person in the position of the suspect, not by the arresting officer's subjective belief or intent regarding arrest.

First, the court disagrees with Ochana as to the officers' subjective belief of probable cause. Ochana is correct that "`[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.'" Arkansas v. Sullivan, 532 U.S. 769, 772 (2001) (quoting Whren v. United States, 517 U.S. 806, 813 (1996)) (emphasis added). However, "subjective intentions" refer to an officer's subjective motivation for making an arrest, not to an officer's subjective belief of probable cause. See id. On the contrary, an arresting officer's subjective belief that he had probable cause is central in evaluating the propriety of an arrest. "Probable cause for an arrest exists if, at the time of the arrest, the facts and circumstances within the police officer's knowledge were sufficient to warrant a reasonable belief that the suspects had committed, were committing, or were about to commit a crime." Wollin v. Gondert, 192 F.3d 616, 622 (7th Cir. 1999). Although Fourth Amendment jurisprudence is objective, not subjective, see United States v. McCarty, 862 F.2d 143, 148 (7th Cir. 1988), an officer's subjective perceptions and thoughts may play a part, especially in close cases. See Jones v. Baldwin, No. 97 C 617, 1998 WL 852887, at *2 (N.D. Ill. Dec. 4, 1998). For example, the officer's "subjective belief at the time of the arrest that he lacks probable cause may be relevant in determining what facts the officer actually did know at the time of the arrest, and may tip the scale toward finding that the officer lacked probable cause." Id. (quoting McCarty, 862 F.2d at 148 n. 3). Even further, in a § 1983 action such as this when a defense of qualified immunity has been raised, "[e]ven if probable cause is lacking with respect to an arrest, despite an officer's subjective belief that he had probable cause, he is entitled to immunity as long as his subjective belief was objectively reasonable." Humphrey v. Staszak, 148 F.3d 719, 726 (7th Cir. 1998) (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Therefore, the officers' subjective belief that probable cause existed is central to this case. Accordingly, the court denies Ochana's motion as to the officers' subjective belief of probable cause.

Second, the court agrees with Ochana as to the officers' subjective beliefs or intent regarding arrest. "A seizure becomes an arrest when `a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.'" Brandon v. Vill. of Maywood, 157 F. Supp.2d 917, 925 (N.D. Ill. 2001) (citing United States v. Ienco, 182 F.3d 517, 523 (7th Cir. 1999)). See United States v. Wyatt, 179 F.3d 532, 535 (7th Cir. 1999) (stating that "the test for whether an individual is in custody is "how a reasonable man in the suspect's position would have understood his situation.") (internal quotation omitted). Meanwhile, "[a] policeman's unarticulated plan has no bearing on the question whether a suspect was "in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 441 (1984). Therefore, the officers' subjective beliefs and intent regarding arrest are not relevant to the question of whether Ochana was under arrest or in custody. Further, the court finds that any probative value of such evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. Accordingly, the court grants Ochana's motion as to the officers' subjective beliefs or intent regarding arrest.

2. Probable cause for closely-related offenses

Ochana moves to bar any reference to the officers having probable cause to arrest Ochana for offenses closely related to obstruction of traffic, possession of a controlled substance, or forging or altering a prescription. Specifically, Ochana moves to bar any reference that there was probable cause to arrest him for the offenses of driving under the influence, reckless driving, and negligent driving because Ochana argues these are not closely related to the offenses with which Ochana was charged.

The court disagrees with Ochana. An arrest is justified if officers had probable cause or arguable probable cause to arrest the suspect either for the precise offense the officers cited or for a closely-related offense. Williams v. Jaglowski, 269 F.3d 778, 783 (7th Cir. 2001) (citing Biddle v. Martin, 992 F.2d 673, 676 (7th Cir. 1993)). "In order to rely on a closely-related charge, however, the officers must show that the charge can reasonably be based on the same set of facts that gave rise to the arrest and that the charge offered as justification is one that "would [have recommended] itself to a reasonable police officer acting in good faith' at the time the arrest was made." Id. (quoting Richardson v. Bonds, 860 F.2d 1427, 1431 (7th Cir. 1988)).

The crimes of driving under the influence, reckless driving, and negligent driving are sufficiently related to satisfy the requirements of Richardson. See Biddle, 992 F.2d at 676 (finding disorderly conduct and a vehicular offense — "allowing another to operate his van in a manner contrary to law" — closely related to the offense charged, obstruction of a police officer). First, for the crime of driving under the influence, the Illinois Vehicle Code provides in relevant part:

(a) A person shall not drive or be in actual physical control of any vehicle within this State while: . . . (3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely; (4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving; (5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving . . .

625 ILL. COMP STAT. 5/11-501(a). Second, for the crime of reckless driving, the Illinois Vehicle Code provides in relevant part: "Any person who drives any vehicle with a willful or wanton disregard for the safety of persons or property is guilty of reckless driving." 625 ILL. COMP. STAT. 5/11-503(a). Third, for the crime of negligent driving, the Chicago Municipal Code provides: "It shall be unlawful for any person to operate any vehicle upon a public way negligently, heedlessly and without due caution in a manner so as to endanger or likely to endanger any person or property." CHI. MUN. CODE § 9-40-140.

All three of these charges could reasonably be based on the same set of facts — that Ochana was asleep or unconscious at the wheel of his car, while at a stoplight in front of a line of traffic, with the gear of his car in drive and his foot on the brake — that gave rise to the arrest. In light of the facts, these three charges would have recommended themselves to a reasonable officer acting in good faith at the time the arrest was made. See Williams, 269 F.3d at 783 (articulating the standing for finding charges closely related). These charges offered by the officers to justify the arrest are not ex post facto extrapolations of the crimes which might have been charged. See id. The justifications for arrest which the ...


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