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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


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 (1986).

  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 amended complaint.

  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 disputed.

  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 ...

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