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DAVIS v. NOVY

June 15, 2004.

MICHAEL E. DAVIS, Plaintiff,
v.
CHARLES NOVY and LUIS ESCOBAR, individually and in their capacity as Bolingbrook police officers, Defendants.



The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Michael Davis sued Charles Novy and Luis Escobar, both police officers with the Village of Bolingbrook, alleging that they violated his Fourth Amendment rights during the course of a traffic stop and the subsequent search of his truck and his home. The case went to trial on May 17, 2004, and, at the close of the plaintiff's case, the officers moved for judgment as a matter of law. For the reasons explained in this Memorandum Opinion and Order, the Court grants the officers' motion.

A. Factual Background

  On February 9, 2002, Michael Davis was driving around his Bolingbrook neighborhood taking pictures of snow mounds. Mr. Davis, who uses a wheelchair to get around, was attempting to document a problem with the way the village plowed snow; according to Mr. Davis, the plows piled the snow in a way that blocked his access to streets and sidewalks and prevented him from taking his dogs out for exercise. Mr. Davis left his house at about 11:30 a.m., driving around the neighborhood in his 1995 dark green Ford F150 pickup truck with a black camper shell on the back of it.

  At about noon that same day, the Bolingbrook police department received a call through its 9-1-1 dispatcher, complaining that a white male was driving around the area of Commonwealth and Brighton in Bolingbrook, taking pictures of a young girl. The caller reported that the man was wearing a hat and driving a black Ford pickup truck with a cab on the back. The dispatcher assigned two officers to respond to the call, Officer Charles Novy and Officer Luis Escobar.

  Upon arriving at the general area reported in the call, Officer Novy saw Mr. Davis, a white male, and his dark green Ford pickup truck with a cab on the back of it. Officer Novy followed Mr. Davis for a bit, and then pulled him over. Upon doing so, Officer Novy noticed a hat and a camera bag on the seat next to Mr. Davis; he also saw towels, duct tape and rope in the cab. When Mr. Davis could not provide a valid Illinois driver's license or proof of insurance, Officer Novy arrested him, placing him in the backseat of his squad car. Officer Escobar joined the two at some point during this initial encounter. The officers searched Mr. Davis' truck, after obtaining Mr. Davis' permission to do so, and found a pair of women's thong underpants and a stub from the Brookfield Children's Zoo. They then asked him to sign a card stating: "I give the Bolingbrook police department permission to search the following: [here, Officer Escobar had filled in "residence"] located at the following: [here, Officer Escobar had filled in 1095 Bothwell," Mr. Davis' address]. I give this permission voluntarily & without threats or promises of any kind." See Plaintiff's Exhibit 8. Mr. Davis signed the card, and the officers searched his home. That search turned up nothing to suggest that Mr. Davis was involved in any way with child pornography or other child exploitation.

  After the search, the officers and Mr. Davis went back outside, where Officer Novy issued citations to Mr. Davis for driving without a valid Illinois' driver's license, for driving an uninsured vehicle, and for having an obstructed registration sticker on his rear license plate — all violations of the Illinois vehicle code. Officer Novy allowed Mr. Davis to give a signature in lieu of posting a bond, and then he left; Officer Escobar left while Novy was writing up the citations.

  Almost a year later, on January 24, 2003, Mr. Davis sued Officer Novy and Officer Escobar, alleging that they violated his constitutional rights in the course of the initial stop, and in the subsequent searches of his person, his truck and his home.

  B. The Trial

  The case was tried before a jury on May 17, 18 and 19, 2004. At trial, Mr. Davis testified first. He explained that, on February 9, 2002, he decided to drive through the neighborhood to take pictures of snow mounds so that he could show the Village how the snow impeded his access to the streets and sidewalks, and to try to find a way to solve the problem. Tr. at 106. He described the route he drove, which, according to the map shown to the jury, put him in or near the area reported in the 9-1-1 call. Tr. at 111-12.

  Mr. Davis testified that, at some point while he was out on his picture-taking expedition, he noticed a police car following him, and he was eventually pulled over. Tr. at 110, 112-13. He testified that, when Officer Novy approached the truck, he asked the officer whether he had done anything wrong, and Officer Novy had responded "no." Tr. at 113. According to Mr. Davis, Officer Novy said he stopped him because the police department had "received an anonymous 911 phone call from some woman stating that I had been taking pictures of children." Tr. at 114. Mr. Davis testified that Officer Novy then asked him for his driver's license and insurance card; he produced his Indiana driver's license, which he learned was no longer valid, but he was unable to provide an insurance card. Tr. at 115, 117.

  Mr. Davis testified that Officer Escobar arrived on the scene about this time, and, after the two officers conferred briefly, Officer Novy asked Mr. Davis if he could search his truck. Tr. at 117-18. Mr. Davis testified that he asked what would happen if he refused, and Officer Novy told him that they would have to impound his truck and take him to jail. Tr. at 118. Mr. Davis testified that he then agreed to the search; Officer Novy searched his truck for about 30 to 45 minutes, while Mr. Davis sat on the tailgate of his truck, with Officer Escobar standing in front of him in a defensive posture. Tr. at 119-20, 122.

  Mr. Davis testified that, after Officer Novy searched the truck, he told Mr. Davis he was under arrest; Officer Novy patted him down and asked him to empty his pockets, which he did. Tr. at 123. Mr. Davis testified that Officer Novy then placed him in the backseat of the squad car and told him that he wanted to search his house, which was just a few blocks away. Tr. at 13-24. Mr. Davis testified that he again asked what would happen if he refused, and Officer Novy again told him that he would impound his truck and take him to jail. Tr. at 124. Mr. Davis testified that the officers presented him with a consent card, and he signed it. Tr. at 124, 127. The three then proceeded to his house, where Officer Novy searched through his bedroom (in the closets, dresser drawers, and boxes) and took a cursory look through his garage, then they went back outside. Tr. at 131-33. Mr. Davis testified that Officer Novy then wrote out the tickets and filled out some other paperwork, gave copies to him, and then left. Tr. at 133-34.

  Mr. Davis conceded that he had committed the violations for which he ultimately received citations: he testified that he had moved to Illinois in August of 2001, and that he had never obtained an Illinois driver's license; he admitted that, on the morning of February 9, 2002, the registration sticker on the rear license plate of his truck was partially obscured by the bracket around the plate; and he admitted that, as of that date, he had no insurance for his truck. Tr. at 103, 146-48, 150-51. Mr. Davis testified that, when Office Novy approached his truck, there was, in fact, a hat, a camera, a camera bag, towels, duct tape and rope in the cab of his truck, all either on the seat next to him or on the floor of the cab. Tr. at 153-54.

  With respect to the officers' demeanor, Mr. Davis testified that, during the initial traffic stop, Office Novy was polite to him; he was neither rude nor abrasive, threatening nor offensive. Tr. at 152. So too during the course of the search of his truck. Tr. at 161. He testified that the officers did not touch him or handcuff him; they did not display their weapons. Tr. at 156-57, 162. Mr. Davis testified that he had agreed to the searches of his truck and home, but that he did so because he felt coerced by Officer Novy's initial comment to him that the police had received a call about someone taking pictures of children. Tr. at 178-80. He later testified that he also felt coerced because of Officer Novy's statement that, if Mr. Davis did not allow the officers to search his truck and his home, they would arrest him, take him to jail, and impound his truck. Tr. at 181. Mr. Davis testified that he also felt coerced when Officer Novy put him in the backseat of his police car and closed the door. Id. at 182.

  Next, the plaintiff called Officer Novy to the stand He testified that he was on duty at around noon on February 9, 2002 when he received a call on his MDT in his squad car indicating that the department had received a complaint, via cell phone, about a man in a truck taking pictures of kids. Tr. at 185. According to the report, the suspect was a white male wearing a hat and driving a black Ford pickup with a cab on the back; he was reportedly driving near the intersection of Commonwealth and Brighton in Bolingbrook. Tr. at 185, 188. Officer Novy testified that he ...


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