reference to the officers' search of Ochana's car being incident to an
arrest; (5) reference to the officers having authority to arrest Ochana
for obstructing traffic under the Chicago Municipal Code; (6) any claim
that Cynomel, Cytomel, or Synthroid are controlled substances; and (7)
certain opinion testimony of John W. Bowman ("Bowman"). Ochana's motion
to bar portions of Bowman's expert testimony will be discussed infra
Sect. II.E. The officers agreed to Ochana's first motion, so the court
grants Ochana's first motion as to Ochana's ethnic background. The
officers oppose the remaining six motions.
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.