United States District Court, N.D. Illinois, Eastern Division
November 19, 2004.
LEE CROSS, Plaintiff,
CITY OF CHICAGO and the Chicago Police OFFICER RUBIN WEBER, Star No. 19588, and OFFICER KRISTI BATTALINI, Star No. 16027, Defendants.
The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Lee Cross has sued the City of Chicago and Chicago Police
Officers Rubin Weber and Kristi Battalini in a ten count second
amended complaint pursuant to 42 U.S.C. § 1983 and Illinois law.
Cross alleges that the officers violated his Fourth Amendment
rights and his rights under Illinois law to be free from unlawful
searches, arrests, and seizures of property.
Defendants have moved for summary judgment on all counts. For
the reasons set forth below, the Court denies defendants' motion
in part and grants it in part.
Facts and Discussion
Summary judgment may only be granted when there are no genuine
issues of material fact in dispute and when the moving party is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
In considering a motion for summary judgment, the Court views the
facts in the light most favorable to the non-moving party and
draws reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
Cross bases his complaint on three separate incidents involving
Weber and Battalini. The Court will consider each incident
separately and in the order Cross refers to them in his second
1. Counts 1, 4, and 6: February 6, 2003 Search and Seizure
On February 6, 2003, Officers Weber and Battalini were
conducting a routine patrol of the Uptown area when they claim
that a man on the street told them that he observed a "large
black male [who] was selling drugs at the corner of Broadway and
Lawrence." Def. 56.1(a)(3) Stmt. ¶ 36. After allegedly receiving
this tip, Weber and Battalini claim that they drove toward
Broadway and Lawrence, where they saw a man fitting the
description given to them by the anonymous informant. The
defendants recognized the man as Lee Cross, an individual they
had arrested several times in the past for narcotics violations.
They claim that Cross spotted them and then ducked into a nearby
liquor store. Id. ¶ 42. They continued to watch Cross as he
came out of the store several minutes later without any
purchases. Id. ¶ 44. The officers then approached Cross and
began to ask him questions. They claim that Cross was agitated by
their questions, though Cross denies this. Pl. Resp. to Def.
56.1(a)(3) Stmt. ¶ 44.
After asking Cross several questions, Weber and Battalini
performed a protective patdown search. Def. 56.1(a)(3) Stmt. ¶
46. They assert that the pat-down search was justified by Cross'
size, agitated demeanor, their reasonable suspicion that he was
engaging in criminal activity, and their location in a high crime
area. Id. Cross argues that the search was not justified
because the officers did not have a reasonable basis to believe
he was armed. Pl. Resp. at 5. In the course of the search, Weber felt a large "wad" in the
front pocket of Cross' pants and asked what it was to which Cross
responded "money." Id. ¶ 48. When asked where he got the money,
Cross said it was from his job at Renzenberger, Inc. Id. ¶ 50.
When Weber called Renzenberger to confirm this, however, he was
told that Cross was not an employee. Id. ¶ 52. The officers
then confiscated the money, totaling $752, to take it to the
station for a dog sniff test for narcotics. Id. ¶ 54. The
officers claim that the money did not come out of Cross' pocket
until they informed him of the dog sniff test. Id. ¶ 53. Cross,
however, claims that Weber removed the money from his pocket as
soon as he felt it during the search. Pl. Resp. to Def.
56.1(a)(3) Stmt. ¶ 53.*fn1
Cross rode with the defendants in their police car to the 23rd
District police station. At the station, a trained dog identified
narcotics on Cross' money. Pl. Resp. to Def. 56.1(a)(3) Stmt. ¶
62. As a result, the defendants informed him that his money was
going to be confiscated and inventoried. Weber had confiscated
and inventoried money belonging to Cross in the same way as a
result of the December 13, 2001 arrest. Id. ¶ 65. Cross got an
inventory slip for his money and left the station. It is
undisputed that Cross was never arrested or charged with any
crime during the February 6, 2003 incident. Id. ¶¶ 56-57.
A. Federal claims
Cross makes two § 1983 claims in connection with the February
6, 2003 incident: Fourth Amendment violations for illegal search
and seizure (count one) and a Fourth Amendment violation for
false arrest (count four). The defendants are entitled to summary
judgment on these claims if there is no dispute over the material facts and
no reasonable jury could find that they violated the Fourth
Amendment. Therefore, the Court must first determine whether any
facts material to the § 1983 Fourth Amendment claims are
The starting point for an analysis of Cross' federal claims
must be whether Weber and Battalini's initial stop of Cross on
the street was proper. Under Terry and its progeny, a police
officer may stop and question an individual if the officer has a
reasonable suspicion that the individual is engaged in criminal
conduct. Terry v. Ohio, 392 U.S. 1, 21-22 (1968). In deciding
whether reasonable suspicion existed, courts should "consider the
totality of the circumstances as they were presented to the
officer at the time of the encounter." United States v.
Scheets, 188 F.3d 829, 837 (7th Cir. 1999) (internal citation
omitted). In other words, reasonable suspicion is satisfied if,
at the time of the stop, "specific and articulable facts," along
with the officer's reasonable inferences from those facts,
warrant the stop. Terry, 329 U.S. at 21-22. A "hunch" or
general suspicion that a suspect is engaging in criminal activity
will not justify a Terry stop. United States v. Brown,
188 F.3d 860, 864 (7th Cir. 1999).
Weber and Battalini argue that they had a reasonable suspicion
to believe that Cross was engaging in narcotics trafficking
because Cross fit the description provided to them by the
anonymous informant; Cross' presence in a high crime area; his
criminal history; and because of Cross' agitated behavior upon
seeing the officers and being questioned by them.
Cross does not dispute that the area surrounding Lawrence and
Broadway is an area of heavy narcotics trafficking. Pl. Resp. to
Def. 56.1(a)(3) Stmt. ¶ 46. He also does not dispute that he has
a criminal record and has encountered Weber and Battalini in the
past. Id. ¶¶ 16, 40. The facts of the high crime area and the
fact of Cross' criminal record alone, however, do not establish reasonable suspicion. See Brown, 188 F.2d at 866 (the
fact that the suspect was in a high crime area frequented by drug
dealers can be considered as part of the totality of
circumstances confronting an officer at the time of the stop, but
it does not by itself justify a reasonable suspicion).
The remaining two elements of the defendants' reasonable
suspicion determination are the informant and Cross' behavior.
Though suspicious behavior may contribute to reasonable
suspicion, see Illinois v. Wardlow, 579 U.S. 119, 124 (2000),
Cross denies that he acted as defendants claim, specifically, he
asserts that he entered the liquor store to meet a friend, and he
denies acting in an agitated manner.
Second, Cross argues that the informant did not actually exist.
He states that the defendants cannot provide any documentation on
the supposed informant, nor can they identify him. Pl. Resp. to
Def. 56.1(a)(3) Stmt. ¶ 36. And, in fact, the evidence provided
to the Court suggests that Cross may be justified in questioning
the existence of the informant. The defendants have different,
and possibly conflicting, stories about the informant. Weber
testified that the informant was not a registered confidential
informant. Def. Ex. D, Cross Dep. at 72. He also stated that he
did not know the individual's name or where he lived, id. at
73, and knew only that he was a man that was a regular in the
area for a short amount of time. Id. at 74. Battalini, when
asked the informant's name, replied "I can't answer that, it's
confidential." Def. Ex. C, Battalini Dep. at 56. She testified
that she knew the informant and that he had provided information
in the past that had led to arrests. Id. at 57.
Cross further argues that even if the Court is to accept the
defendants' story about the informant, the information provided
by the informant cannot be relied upon because it was utterly lacking in detail and basically led to a fishing
expedition for any black man near the corner of Broadway and
Lawrence. Pl. Resp. at 3.
The Court agrees with Cross that the nature of his behavior
prior to the stop and the existence of the informant are
genuinely disputed. The defendants argue that the Court should
not give credence to the plaintiff's denial of the existence of
the informant. In considering a motion for summary judgment,
however, a court "cannot make credibility determinations, weigh
the evidence, or decide which inferences to draw from the facts;
these are jobs for a fact finder." Payne v. Pauley,
337 F.3d 767, 770 (7th Cir. 2003) (citing Anderson, 477 U.S. at 255).
Rather, the Court must view all evidence in the light most
favorable to the plaintiff. In doing so, the Court finds that a
reasonable jury could conclude that the defendants lacked
reasonable suspicion to conduct a Terry stop and therefore
violated Cross' Fourth Amendment rights.
Because there are genuine factual disputes as to whether the
defendants had reasonable suspicion to stop Cross on February 6,
2003, the Court does not need to address whether the seizure of
the money found on Cross violated the Fourth Amendment. If the
initial Terry stop of Cross was illegal, then it follows that
the resulting search of his body and seizure of his money
likewise would violate of the Fourth Amendment.
B. Qualified immunity
Weber and Battalini claim that even if reasonable suspicion did
not exist, they are entitled to qualified immunity. Qualified
immunity shields government actors from liability when performing
discretionary functions as long as they do not violate "clearly
established statutory or constitutional rights of which a
reasonable person would have known." Berman v. Young,
291 F.3d 976, 983 (7th Cir. 2002) (internal citation omitted). To
determine whether qualified immunity is appropriate, the Court must consider
whether a "`reasonable officer could have believed that [his]
conduct was constitutional in light of the clearly established
law and the information possessed at the time the incident
occurred.'" Jones v. Webb, 45 F.3d 178, 183 (7th Cir. 1995)
(quoting Ellis v. Wynalda, 999 F.2d 243, 246 (7th Cir. 1993)).
It is undisputed that as of February 6, 2003, any reasonable
officer would have known that the Fourth Amendment requires
articulable and objective suspicion that the individual had, was,
or was about to engage in criminal activity before the officer
could conduct an investigatory stop.
The Court has already decided that it cannot hold as a matter
of law that Weber and Battalini had reasonable suspicion to stop
Cross on February 6, 2003. Weber and Battalini, however, may
still be entitled to qualified immunity is the Court finds that
there was "arguable" reasonable suspicion. Humphrey v. Staszak,
148 F.3d 719, 725 (7th Cir. 1998). In this regard, the only
question is whether a reasonable officer acting under the same
circumstances as Cross and Battilini could have "reasonably but
mistakenly" concluded that reasonable suspicion existed; if so,
they are entitled to qualified immunity. Id.; Anderson v.
Creighton, 483 U.S. 635, 641 (1987).
In deciding the qualified immunity question on summary
judgment, the Court must consider the evidence in the light most
favorable to Cross. Saucier v. Katz, 533 U.S. 194, 201 (2001).
As we have already discussed, considering all of the evidence in
Cross' favor leads to the conclusion that a reasonable officer
under the same circumstances would not have believed there was
enough evidence to make a Terry stop or to seize Cross' money.
Specifically, a reasonable officer could not have reasonably but
mistakenly concluded that the presence in a high crime area of a
person with a criminal record justified, without more, stopping
and frisking that person. Defendants cite no authority suggesting otherwise.
Weber and Battalini are thus not entitled to summary judgment on
their qualified immunity defense as to counts one and four.
C. State claim
In addition to his federal claims arising from the February 6,
2003 search and seizure, Cross also alleges that Weber and
Battalini violated Illinois law by falsely arresting him. 2nd Am.
Compl., Count 6. Illinois law requires a plaintiff to produce
evidence that he was restrained or arrested without having
reasonable grounds to believe an offense was committed. Meebrey
v. Marshall Field & Co., 139 Ill.2d 455, 474, 564 N.E.2d 1222,
1231 (1990). The defendants point out that Cross does not dispute
that he was free to leave at any time; though leaving would have
required forfeiting his money. Pl. Resp. to Def. 56.1(a)(3) Stmt.
¶ 60. He also does not dispute that he was never arrested,
charged, or handcuffed. Id. ¶¶ 56-59.
Cross does not respond to the defendants' arguments against his
state claim. In fact, he does not make any argument in support of
his false arrest claim and cites no Illinois case law. Cross
devotes only one sentence to the claim and states, "For the
reasons given above, as well as the numerous factual
discrepancies involved, Defendant Officers' argument fails and
Summary Judgment, as to Plaintiff's claims in count IV and VII,
must be denied." This statement is insufficient to rebut
defendants' argument; among other things, Cross has offered no
authority that Illinois recognizes a civil cause of action for an
improper Terry stop.
2. Counts 2, 5, and 7: June 17, 2003 Search and Seizure
On June 17, 2003, Weber and Battalini again stopped Cross in
the Uptown area. The officers were on a routine patrol of Morse
Avenue when they saw Cross and decided to observe him because of
his criminal history. Def. 56.1(a)(3) Stmt. ¶ 75. They claim to
have seen him enter into a business, come out one minute later, enter a parked
car for several minutes, then exit the car and enter into another
business for a brief time, and then walk back towards the car.
Id. ¶¶ 77-78. Cross denies this, claiming that he only went
into a restaurant to place an order or take-out and then he
walked back out to wait for his food. Cross Dep. at 153.
The defendants stopped Cross while he was walking back to the
car. They performed a protective pat-down, they claim, because of
"the high crime area" and Cross' "criminal history." Def.
56.1(a)(3) Stmt. ¶ 79. Cross claims the search was a fishing
expedition for contraband, not for the purpose of protection. Pl.
Resp. to Def. 56.1(a)(3) Stmt. ¶ 79. During the pat-down or
search, the officers discovered in Cross' front pocket a wad of
cash totaling $1,140. Id. ¶ 80. Weber and Battalini then began
to question Cross about the car and what he was doing in the
area. They claim that Cross was agitated and that his voice was
raising and lowering, which Cross disputes. Pl. Resp. to Def.
56.1(a)(3) Stmt. ¶ 83. Weber and Battalini say they asked Cross
about the car and Cross denied having a car or being in a car,
Def. 56.1(a)(3) Stmt. ¶ 84, but Cross denies this, stating that
Battalini simply took his car key and started to search his car.
Pl. Resp. to Def. 56.1(a)(3) Stmt. ¶ 84; Cross Dep. at 157. Weber
then asked Cross why he was carrying so much cash. Weber alleges
that Cross first responded that the cash was for construction
supplies and then later said it was his employer's money. Def.
56.1(a)(3) Stmt. ¶ 86. Cross denies this, stating that he never
changed his story and only told the defendants that the cash was
for building materials for a job. Pl. Resp. to Def. 56.1(a)(3)
Stmt. ¶ 86; Cross Dep. at 163. According to the defendants, Cross
refused to give the name of his employer; according to Cross,
they never asked. Id. ¶ 87; Def. 56.1(a)(3) Stmt. ¶ 87.
The defendants told Cross that they were going to take his
money to the station to have a dog sniff it for narcotics. Cross demanded to speak to Weber's
supervisor; Weber called his supervisor; and the supervisor told
Cross he could come to the station and get an inventory slip for
his money. Pl. Resp. to Def. 56.1(a)(3) Stmt. ¶ 90. Cross drove
to the station and waited; Weber advised him that the money had
tested positive for narcotics. Id. ¶ 92. It is undisputed that
Cross was never arrested or charged with a crime and that he
could have left the police station at any time if he was willing
to forfeit his money. Id. ¶ 96. Later that day, Cross filed a
complaint against Weber and Battalini with the Chicago Police
Department's Office of Professional Standards. Id. ¶ 97.
A. Federal claims
As he did with respect to the events of February 6, 2003, Cross
makes two § 1983 claims in connection with the June 17, 2002
incident: Fourth Amendment violations for illegal search and
seizure (count two) and a Fourth Amendment violation for false
arrest (count five). In deciding whether summary judgment is
appropriate for the claims relating to the June 17, 2003
incident, the Court must engage in the same inquiry as it did for
the February 6, 2003 incident. Again, we must begin our analysis
with the initial stop of Cross in order to determine whether any
material facts are genuinely disputed regarding whether the
defendants had reasonable suspicion to stop Cross. If material
facts are genuinely disputed, the Court must deny defendants'
motion for summary judgment on these claims.
Weber and Battalini argue that they had reasonable suspicion to
conduct a Terry stop. They claim that the reasonable suspicion
developed as a result of three circumstances: watching Cross walk
back and forth between businesses and a car; his presence in a
high crime area; and Cross's criminal history. Def. Mot. at 13.
Cross does not dispute his presence in a high crime area or his criminal history. As earlier discussed, however,
these two facts alone do not support reasonable suspicion. See
Brown, 188 F.2d at 866 (the fact that the suspect was in a high
crime area frequented by drug dealers does not by itself justify
a Terry stop). Rather, a suspect's criminal history and
appearance in a high crime area are only factors in the
reasonable suspicion determination. United States v. Lee,
300 F. Supp. 2d 632, 635 (N.D. Ill. 2004) (though a person's presence
in a high crime area is a relevant consideration to deciding
whether reasonable suspicion exists, alone, it is not enough to
support reasonable suspicion).
The appropriateness of the Terry stop is, therefore,
dependent upon what, if anything, the defendants observed Cross
doing on June 17, 2002. As already discussed, Cross and Weber and
Battalini provide the Court with very different stories about
what Cross was doing before he was stopped. In ruling on a
summary judgment, the Court must view the evidence and make
reasonable inferences in favor of the plaintiff. Cross states
that all he did was enter a restaurant to place an order for
take-out and then walk outside the restaurant to talk on his cell
phone while he waiting for his food. Pl. Resp. at 7-8. These
facts, even if considered in conjunction with the high crime area
and Cross' criminal history, would not provide the defendants
with the reasonable suspicion necessary to stop Cross. And if the
stop was improper, the seizure of Cross' money as a result of the
stop was likewise improper. For this reason, Weber and Battalini
are not entitled to summary judgment.
B. Qualified immunity
The inquiry into qualified immunity for the events of June 17,
2003 is the same as the inquiry into qualified immunity discussed
earlier. Weber and Battalini are entitled to qualified immunity
only if they can show that there is no genuine issue of material
fact as to whether a reasonable officer acting under the same circumstances as Cross
and Battilini could have "reasonably but mistakenly" concluded
that reasonable suspicion existed. Anderson, 483 U.S. at 641.
Considering all of the evidence in the light most favorable to
Cross, as the Court must, no reasonable officer would have
believed that there was reasonable suspicion to stop a man merely
because he had a criminal history, was in a high crime area, and
walked out of a restaurant. Thus, the defendants are not entitled
to summary judgment on their defense of qualified immunity for
their actions on June 17, 2002.
C. State claim
Cross claims in count five of his second amended complaint that
Weber and Battalini violated Illinois law when they allegedly
falsely arresting him on June 17, 2003. Cross, however, fails to
make any argument in support of the claim. The only mention of
count five in his response to the motion for summary judgment is
one sentence at the end of his discussion of his federal claims
arising out of the events of June 17, 2003, which states merely
that "for the reasons stated above, as well as the numerous
factual discrepancies involved, . . . Summary judgment, as to
Plaintiff's claims in count V and VIII, must be denied." As
discussed earlier, this is not enough to save Cross' state law
3. Count 3: January 20, 2002 Arrest and Search
In count three of the second amended complaint, Cross alleges
that the defendants violated his Fourth Amendment rights by
subjecting him to an unwarranted strip search on January 20,
2002. On January 20, 2002, Weber and Battalini claim that they
saw Cross approach two individuals on the sidewalk, both of whom
continued to walk past him. Def. 56.1(a)(3) Stmt. ¶¶ 10-11. The
officers recognized Cross because they had arrested him for
possession of crack cocaine on December 13, 2001. Id. ¶ 16. Weber, believing
these actions to be suspicious, then exited his car to be able to
observe Cross more closely. Id. ¶ 12. Weber claims that he saw
Cross speaking to a young black male, heard Cross ask the
individual "you straight?" and then watched the individual hand a
twenty dollar bill to Cross. Id. ¶ 13. At that point, Weber
approached Cross. The defendants claim that Cross recognized them
because they had arrested him approximately five weeks earlier.
Id. ¶ 16. They called out to Cross, but Cross did not respond
to their demands and walked away from them. Id. ¶ 17. Weber
claims that when Cross finally stopped walking, he was acting
agitated and was raising his voice. Id. ¶ 18. Weber arrested
him for unlawful solicitation. Id. At the time of the arrest,
Weber performed a patdown search on Cross but did not find any
drugs or weapons. Def. 56.1(a)(3) Stmt. ¶ 19. He did, however,
find a twenty dollar bill. Id. ¶ 20.
Cross does not claim that the arrest or pat-down violated his
Fourth Amendment rights (though he does dispute some of the facts
leading up to the arrest). Instead, Cross' claim arising from
this incident is based on what happened to him once the
defendants brought him back to the 23rd District station house.
When the officers brought Cross to the station, Weber told Cross
he was going to perform a strip search before he put Cross in
lock-up because he suspected that Cross had drugs on him. Def.
56.1(a)(3) Stmt. ¶ 27. Cross does not dispute that the search was
done in a private room and only in the presence of Officer Weber.
Id. ¶¶ 23, 26. Cross and Weber describe the search in
essentially the same way: Cross was told to take off his pants
and to hold out the waistband of his underwear; Weber searched
the area around Cross' testicles; and Weber ran his hand up
Cross' buttocks but did not go inside any body cavity. Id. ¶¶
28-31; Pl. Ex. A, Cross Dep. at 62-64. Cross claims that the strip search violated the Fourth
Amendment because the defendants lacked reasonable suspicion to
believe that he had contraband on his person. The defendants
argue that the search was justified because they had reasonable
suspicion to believe Cross had narcotics on his person and
because there was a legitimate interest in keeping narcotics out
of the police station lock-up. Weber and Battalini also assert
that even if reasonable suspicion did not exist, it arguably
existed, and therefore, they are entitled to qualified immunity.
The Supreme Court has ruled that in judging the reasonableness
of a strip search, a court must consider "the scope of the
particular intrusion, the manner in which it was conducted, the
justification for initiating it, and the place in which it
occurred." Bell v. Wolfish, 441 U.S. 520, 559 (1979). The strip
search of Cross was sufficiently limited in scope. Cross admits
that Weber did not probe inside any body cavities. Pl. Ex. A,
Cross Dep. at 64. He testified that "He [Weber] just ran his hand
up the crack of my behind . . . just to feel to see if there was
something there." Id. As to the manner in which the strip
search was conducted, it appears to have been done in a
professional manner. Weber wore gloves, see Def. Ex. C, Cross
Dep. at 22, and the search took "from start to finish . . . maybe
like seven to ten minutes." Pl. Ex. A, Cross Dep. at 65.
Furthermore, the search took place in a private office in the
station where no one was present except for Weber and Cross. Def.
56.1(a)(3) Stmt. ¶ 26.
Finally, with respect to the justification for the search, the
Seventh Circuit has ruled that to justify a strip search, the
police must have reasonable suspicion that a detainee has
contraband on his person. See Mary Beth G. v. City of Chicago,
723 F.2d 1263, 1273 (7th Cir. 1983) (body cavity search conducted
without reasonable suspicion that the detainee was concealing
weapons or contraband violated the Fourth Amendment); Tinetti v.
Wittke, 620 F.2d 160, 160 (7th Cir. 1980) (per curiam) (body cavity search of a person detained over
night for a traffic offense conducted without probable cause to
believe the individual had contraband or weapons violated the
Fourth Amendment); Doe v. Renfrow, 631 F.2d 91, 94 (7th Cir.
1980) (per curiam) (nonbody cavity strip search violated the
Fourth Amendment because reasonable suspicion was lacking). To
determine whether the search was supported by reasonable
suspicion, the Court must "consider the totality of the
circumstances as they were presented to the officer at the time
of the encounter." Scheets, 188 F.3d at 837. The officers argue
that they had reasonable suspicion based on several
circumstances: Cross' criminal history of narcotics arrests;
their observations of Cross before arresting him that day; and
the arrest itself. Def. Mot. at 18-19.
The Court agrees with defendants that they had reasonable
suspicion based on specific and articulable facts and reasonable
inferences from those fact. Terry, 392 U.S. at 21-22. The
reasonableness of the search was further bolstered by the fact
that it was done in anticipation of Cross entering into the
police station lock-up. In Bell, the Supreme Court wrote that a
detention facility is "a unique place fraught with serious
security dangers." 441 U.S. at 559. The Seventh Circuit has
stated that it is "well established that officials have a
legitimate and substantial need to prevent arrestees from
bringing weapons or contraband into . . . a detention facility."
United States v. Brack, 188 F.3d 748, 758 (7th Cir. 1999)
(internal citation omitted).
Cross correctly notes that the Seventh Circuit has held that
Bell v. Wolfish does not validate all strip searches simply
because they are done in a detention setting. Pl. Resp. at 12.
Cross attempts to compare his situation to that of the plaintiff
in Mary Beth G., where the Seventh Circuit found that a strip
search of a detainee violated the Fourth Amendment.
723 F.2d at 1272. The holding in Mary Beth G., however, does not save
Cross' claim. The plaintiffs in that case were arrested for traffic offenses and were taken to a
detention center only because they had outstanding parking
tickets or because they were unable to produce a driver's
license. Id. at 1267 n. 2. The key to the Seventh Circuit's
ruling was the fact that the police officers did not have
reasonable suspicion that the plaintiffs had weapons or
contraband on their bodies. Id. at 1272 ("ensuring the security
needs of the City by strip searching plaintiff-appellees was
unreasonable without a reasonable suspicion by the authorities
that either of the twin dangers of concealing weapons or
In this case, Weber and Battalini had reasonable suspicion to
believe that Cross might be hiding drugs on his body. This,
together with the reasonable place, manner, and intrusiveness of
the search, entitles the defendants to summary judgment on count
three. See Brack, 188 F.3d at 758. For this reason, the Court
does not have to address the defendants' claim of qualified
4. Count 8: Respondeat Superior
Because the Court has granted summary judgment in favor of the
defendants on Cross' state law claims, the City is entitled to
summary judgment on his respondeat superior claim.
5. Count 9: Monell claim
In Cross' response to defendants' motion for summary judgment,
he withdraws his Monell claim against the City of Chicago. Pl.
Resp. at 1.
6. Count 10: 745 ILCS 10/9-102 Claim against the City of
In count ten of his second amended complaint, Cross claims that
the City of Chicago should be liable for any judgment he may win
against Officers Weber and Battalini because they were acting for
the City when the stopped him, pursuant to 745 ILCS 10/9-102. The
City does not dispute that Weber and Battalini were acting within the scope
of their employment on February 6, 2003 and June 17, 2003;
summary judgment is therefore denied as to count ten.
For the foregoing reasons, the Court grants the defendants'
motion for summary judgment [docket no. 38] as to counts three,
six, seven, eight, and nine but denies the motion as to counts
one, two, four, and five, and ten. The parties are reminded that
the final pretrial order is due on December 1, 2004, and that it
must include both motions in limine and responses, to be
exchanged by the parties before that date. The final pretrial
conference is set for December 3, 2004 at 11:00 A.M.