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OCHANA v. FLORES
April 11, 2002
JOHN OCHANA, PLAINTIFF
FERNANDO FLORES AND ANTHONY SCHWOCHER, DEFENDANTS
The opinion of the court was delivered by: James H. Alesia, Judge
MEMORANDUM OPINION AND ORDER
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
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.
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
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
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 ...