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.
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.
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 ...