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HORNE v. OFFICER DWAYNE WHEELER

September 6, 2005.

VALERIE HORNE, VERINA HORNE, VERNITA HORNE, VERLISA HORNE, VERNON HORNE, and VERLENCIA HORNE, Plaintiffs,
v.
OFFICER DWAYNE WHEELER and THE VILLAGE OF MAYWOOD, Defendants.



The opinion of the court was delivered by: MATHEW KENNELLY, District Judge

MEMORANDUM OPINION AND ORDER

Valerie Horne and several of her family members have filed a six-count complaint against Maywood police officer Dwayne Wheeler and the Village of Maywood, asserting claims pursuant to 42 U.S.C. § 1983 and supplemental state law claims for defendants' role in obtaining and executing a search warrant at the Horne family residence. Specifically, the plaintiffs contend that defendants violated their Fourth Amendment rights by conducting an unreasonable search of the premises, improperly detaining them, using excessive force, and failing to knock and announce before entering the home. Valerie, Verina, and Vernita Horne assert state law claims of assault and battery. Finally, each plaintiff alleges state law claims of intentional infliction of emotional distress and false imprisonment. This case is before the Court on defendants' motion for summary judgment. For the reasons stated below, the Court grants Wheeler and the Village's motion with respect to the plaintiffs' federal claims and dismisses the state law claims for lack of supplemental jurisdiction.

Facts

  On September 27, 2002, Wheeler obtained a search warrant from Judge Donna Cervini to search "a M/B named Aaron Rice . . . nicknamed `Hank' and the 1st floor apartment door located on the east side of the building located at 2947 W. Warren Blvd., Chicago, Cook County, IL." Defs' Ex. 8. The apartment described in the warrant is the Horne residence. Among other things, the warrant provided that officers could seize heroin, guns, and drug paraphernalia. Id.

  Wheeler's complaint in support of his request for the search warrant stated that he had probable cause to believe that the items to be seized were located upon Rice and in the premises. The complaint contained a summary of information provided to Wheeler by a confidential informant, including the informant's belief that Rice resided at 2947 W. Warren and sold drugs out of his bedroom in that apartment. The confidential informant, whose name defendants have chosen not to reveal in this case, had been arrested on September 26, 2002 after Wheeler and another officer observed the informant selling heroin. The informant was charged with possession of a controlled substance, aggravated fleeing, and fleeing and eluding. Because the reliability of the informant's statement is at issue, we will briefly discuss the circumstances surrounding his statements to police.

  Subsequent to his arrest, the informant admitted during an interview with Wheeler and detective Lawrence Connor that he had been selling heroin. He advised the police that he had been selling heroin for fifteen years and that "Hank," whom he had known for approximately five years, had been his supplier. According to the informant's signed statement, he had purchased heroin from Rice over 300 times in the previous five years, including fifteen times in the month prior to his arrest, the most recent being the day before his arrest, when he purchased the heroin confiscated by police. The informant stated that the heroin transactions would occur in "Hank's bedroom" at 2947 W. Warren and that he had seen three guns in the bedroom and living room, and a scale and baggies in the bedroom. The informant also provided police with a diagram of the apartment layout. Defendants acknowledge that the confidential informant had previously been arrested six times, including four times for felony possession of a controlled substance and retail theft. According to defendants, the informant was not promised any sort of leniency for his cooperation.

  Later on the evening of the informant's arrest, Wheeler and two other officers drove the informant to 2947 W. Warren. The informant directed them to the apartment, identified the residence, and repeatedly confirmed that it was the location where he had purchased drugs from Rice. The next morning, officers conducted surveillance on the 2947 W. Warren address but did not observe anyone entering or leaving the apartment.

  After obtaining a statement from the informant, Wheeler maintains, he visited the 11th District Police Station in Chicago and spoke with tactical officers. The officers advised him that "Hank" was Aaron Rice, a known drug dealer, whose house had previously been hit with search and arrest warrants. According to Wheeler, the officers also told him that Rice did not live at 2947 W. Warren, but instead lived kitty-corner to that building. Wheeler ran a background check on Rice and confirmed that he lived across the street from the apartment where the informant said he had purchased drugs from Rice. Though Wheeler was aware that Rice did not reside at the apartment listed in the warrant, he did not include this information in his complaint, nor did he advise Judge Cervini of this fact. In addition, the police took no steps to ascertain who actually resided at the address listed in the warrant.

  Prior to presenting the complaint to Judge Cervini, Wheeler received authority to obtain the search warrant from his superior, Lieutenant Jose Mazariegos, and also obtained approval from an assistant state's attorney. Wheeler and the confidential informant then met with Judge Cervini. Cervini questioned the confidential informant under oath for approximately fifteen minutes, asking him about his prior arrests for narcotics, the body of the search warrant, whether the police had promised him anything, the number of times he had purchased narcotics from the apartment located at 2947 W. Warren, whether the officers had taken him to that address, and whether he had pointed out the exact address where he purchased the drugs. Defs' 56.1 Stmt. ¶ 51. After reviewing the documents and conducting the interview, Judge Cervini issued the search warrant.

  At approximately 8:45 a.m. on September 28, 2002, Maywood police officers executed the search warrant at 2947 W. Warren. Though certain of the facts relating to what occurred during the search are in dispute, it is clear that a group of police officers breached the front door of the apartment using a battering ram and entered the residence. The police officers were wearing black gear and carried long-barrel rifles and "flash bands," and some wore masks. Defendants state that Mazariegos was the officer in charge at the scene and that Wheeler was assigned to watch the back of the house and did not enter the premises until after residents were secured in the living room.

  At the time of the search, Valerie Horne was at home with her children, Verina, age eighteen, Vernita, age sixteen or seventeen, Verlisa, age eleven, Vernon, age seven or eight, and Valerie's granddaughter, Verlinsia, age three. The parties dispute the level of force police used, but they agree that the officers gathered the Horne family members in the living room, where they remained for the duration of the search. It is undisputed that Valerie, Verina, and Vernita were handcuffed while the officers conducted the search. Defs' 56.1 Stmt. ¶¶ 65, 67, 80, 81, 83. Likewise, it is undisputed that in the process of gathering family members in the living room, a police officer grabbed Verina's arm, threw her to the floor, and placed a gun to her head. Id. ¶¶ 79-81. Plaintiffs also allege that officers placed guns to the heads of Valerie and Vernita. The search lasted for approximately thirty to forty-five minutes.

  Discussion

  Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To determine whether a genuine issue of material fact exists, the Court views the record in the light most favorable to the Hornes, the non-moving party in this instance, drawing reasonable inferences in their favor. Id. at 322. Nonetheless, a party opposing summary judgment may not simply rest on the pleadings but must instead affirmatively demonstrate that there is a genuine issue for trial. Payne v. Pauley, 337 F.3d 767, 771 (7th Cir. 2003); see also Davis v. GN Mortgage Corp., 244 F. Supp.2d 950, 955 (N.D. Ill. 2003) ("A defendant is entitled to put the plaintiff to his proofs and demand a showing of the evidence."). Thus, the Hornes must produce specific facts to support their contentions rather than relying on speculation and conclusions without factual support. Rand v. CF Industries, Inc., 42 F.3d 1139, 1146 (7th Cir. 1994). The Court will address each count of the complaint in turn.

  1. Unreasonable search ...


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