United States District Court, N.D. Illinois, Eastern Division
September 6, 2005.
VALERIE HORNE, VERINA HORNE, VERNITA HORNE, VERLISA HORNE, VERNON HORNE, and VERLENCIA HORNE, Plaintiffs,
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
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
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.
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 and seizure
a. Claim against Wheeler
Plaintiffs contend that Wheeler knowingly used false
information to obtain and execute the search warrant of the Horne
residence. Specifically, they allege that Wheeler knew that Rice
did not reside at the address listed in the warrant but failed to
alert Judge Cervini to that fact. Nor, they argue, did the police
take reasonable steps to confirm the confidential informant's tip
or to discover the true residents of the address and determine
whether there was evidence that anyone living there was
committing a crime. The Hornes maintain that Wheeler's failure to
disclose the address discrepancy to Judge Cervini was a material
nondisclosure and that had he provided this piece of information,
probable cause to search the Horne residence would not have
In support, the Hornes submit an affidavit of the now retired
Judge Cervini, dated February 18, 2005. In her affidavit, Cervini
states that based upon her review of the complaint for the search
warrant and Wheeler's deposition taken during discovery in the
present litigation, she does "not believe that Officer Wheeler
provided [her] with full and accurate information when he
requested [her] signature on the search warrant for 2947 W.
Warren Blvd." Cervini Aff. ¶ 13. She goes on to say that had
Wheeler provided her with all the information disclosed in his
deposition, she would not have signed the search warrant
authorizing the raid of the apartment, but instead would have
requested additional information to ensure that there was some
connection between Rice and the residents of 2947 W. Warren.
Id. ¶ 14.
Wheeler maintains that probable cause existed to obtain and
execute the search warrant for 2947 W. Warren independent of whether or not Rice resided at
that address. He asserts that plaintiffs have failed to raise a
genuine issue of material fact regarding whether he knowingly
provided false and misleading information in his application for
the search warrant or purposely withheld information that would
have negated a finding of probable cause.
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court
announced the standard for invalidating a search warrant due to
alleged false statements in the application for the warrant. The
Court noted that affidavits supporting a warrant are presumed
valid but held that a defendant is entitled to a hearing if he
can make a substantial preliminary showing that the affiant
knowingly, or with reckless disregard for the truth, included in
the application a false statement that was necessary to the
finding of probable cause. Id. at 171-72; see also, e.g.,
Forman v. Richmond Police Dept., 104 F.3d 950, 963-64 (7th Cir.
1997). If, at the hearing, the defendant establishes the false
statement and the requisite intent and also shows that without
the false material, the application would be insufficient to
establish probable cause, the warrant is invalid. Forman,
104 F.3d at 964. The Seventh Circuit has extended the Franks
standard to civil actions for damages, like the case at hand, in
which a plaintiff alleges that a police officer deliberately
misrepresented facts in a warrant application. Perlman v. City
of Chicago, 801 F.2d 262, 264 (7th Cir. 1986).
Applying the Franks standard, the Court concludes that
plaintiffs have failed to make the necessary showing that
probable cause to search the apartment would not have existed had
all material facts been disclosed. "[A]n affidavit procured in
part by tainted evidence is not necessarily invalid because the
untainted information, considered by itself, may establish
probable cause for the warrant to issue." Forman,
104 F.3d at 964. As defendants aver, Maywood police would have had probable
cause to search the apartment located at 2947 W. Warren even if
Wheeler had stated in his affidavit that Rice did not reside at
that address, or the affidavit had not included the informant's
belief that Rice lived in that apartment. Probable cause
"requires only a probability or substantial chance of criminal
activity, not an actual showing of such activity." Illinois v.
Gates, 462 U.S. 213, 244 n. 13 (1983). Courts apply a
totality-of-the-circumstances test to probable cause inquiries,
including those involving an informant's tip. See Gates,
462 U.S. at 238. The confidential informant provided Wheeler with
specific, recent, first-hand information describing his
experience buying heroine from Rice at the 2947 W. Warren
apartment. See United States v. Price, 888 F.2d 1206, 1209 (7th
Cir. 1989). He admitted that he had bought heroin from that
address on over 300 occasions, and he described in detail the
various drug paraphernalia and guns he had observed in the
apartment. He was also able to provide police with a sketch of
the apartment's layout. Wheeler verified this information by
having the informant show him the location of the apartment and,
at least according to Wheeler, by obtaining information from
Chicago police officers that Rice was a known drug dealer in the
Though the confidential informant was himself a known drug
dealer and had previously served time in prison, the fact that he
identified his source and the location of the drug transactions
in the context of making an admission regarding his own illegal
activity lends credence to his statement. See United States v.
Harris, 403 U.S. 573, 583 (1971) ("People do not lightly admit a
crime and place critical evidence in the hands of the police in
the form of their own admissions. Admissions of crime, like
admissions against proprietary interests, carry their own indicia
of credibility sufficient at least to support a finding of
probable cause to search."). In short, the informant's tip provided the requisite probable
cause to search the address in question regardless of whether
Rice actually lived in that apartment.
Moreover, the fact that Rice did not live at the address listed
in the warrant did not undercut the informant's statement that
Rice sold drugs out of that apartment. It is not uncommon for
criminals to conduct illegal activity at locations other than
their primary residence. The confidential informant provided
officers with sufficient information to establish both a
reasonable probability that Rice was engaged in illegal activity
and that illegal activity was occurring within the apartment
located at 2947 W. Warren. Thus, the fact that Rice did not
reside at that address was immaterial to the probable cause
Judge Cervini's affidavit, made almost two and a half years
after she had issued the warrant, is insufficient to create a
genuine issue of material fact. Notably, Judge Cervini does not
state that she would have concluded that probable cause to search
2947 W. Warren was lacking had she known that Rice did not reside
there; rather, she simply opines that she would have requested
additional information before issuing the warrant. The
informant's statement, and as best as one can tell his responses
to Judge Cervini's questioning before she issued the warrant,
established probable cause that criminal activity was afoot at
the 2947 W. Warren apartment. Otherwise, one must assume, Judge
Cervini would not have issued a warrant.
The issue of whether probable cause exists is ordinarily a
question of fact. See Sheikh-Abdi v. McClellan, 37 F.3d 1240,
1246 (7th Cir. 1994). A determination that probable cause existed
as a matter of law is appropriate, however, if "there is no room
for a difference of opinion concerning the facts or the
reasonable inferences to be drawn from them." Id. Because no
genuine issue of material fact exists regarding whether probable
cause existed to search the 2947 W. Warren apartment, we conclude that probable cause existed as a
matter of law.
c. Monell claim against the Village
Plaintiffs have also advanced a claim against the Village of
Maywood for unreasonable search and seizure. A municipality may
be held liable under § 1983 for the unconstitutional actions of
its employees only if the plaintiff can demonstrate that the
alleged constitutional deprivation was caused by a policy or
custom of the municipality. Monell v. Dept. of Soc. Servs.,
436 U.S. 658, 694 (1978). Liability may exist under Monell if an
express policy of the municipality caused the constitutional
deprivation; the deprivation was caused by a widespread practice
that is so permanent and well settled that it constitutes a
policy with the force of law; or plaintiff's injury was caused by
a municipal official with final policymaking authority. See
McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995).
Plaintiffs provide no evidence that an official policy or
custom of the Maywood Police Department led to the alleged
unreasonable seizure. Rather, they argue that the Village is
liable because Lieutenant Mazariegos, who plaintiffs claim had
final policymaking authority, supervised Wheeler and approved the
search warrant knowing that it contained misleading information
concerning Rice's address. Plaintiffs point out that a Maywood
patrol officer must obtain approval from a supervisor before
presenting a search warrant application to a court. See Defs'
56.1 Stmt. ¶ 34.
Mazariegos does not, however, have the type of official
policymaking position contemplated by Monell. The fact that he
had discretion deciding whether to approve a warrant application
does not give rise to municipal liability unless he was
responsible for establishing final government policy with respect
to that activity. See Eversole v. Steele, 59 F.3d 710, 715-716 (7th Cir. 1995) ("The discretion to make final decisions to carry
out the policies of a local law enforcement entity does not
equate to policymaking authority."). The Court looks to state and
local law to determine whether Mazariegos had responsibility for
making law or setting policy within the municipality. See City
of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988);
Eversole, 59 F.3d at 716; see also Murphy v. City of Chicago,
No. 01 C 1802, 2002 WL 977508, at *6. Plaintiffs have cited no
authority suggesting that lieutenants have such authority in
Maywood. Moreover, Maywood Code § 32.03 provides that "[t]he
Police Chief shall make such rules and regulations for the
conduct and guidance of the Police Department personnel as he
shall deem advisable and such rules and regulations, when
approved by the Village Manager, shall be binding on the
members." See Defs' Reply at 9. This ordinance is consistent
with case law holding that a county sheriff and chief of police
are, in their respective positions, final policymakers in this
context. See Eversole, 59 F.3d at 716 n. 7. Accordingly,
plaintiffs cannot maintain their claim against the Village.
2. Excessive force
a. Claim against Wheeler
Plaintiffs allege that after the officers entered the Hornes'
apartment, an officer "grabbed [Valerie] off the couch, threw her
to the ground, put a gun to her head and handcuffed her behind
her back. Her nightgown was up and her genitalia was exposed."
Pl's Resp. at 12. Plaintiffs also report that police officers
threw Verina to the floor and placed a gun to her head. Id. at
12. Similarly, they claim that officers put Vernita on the ground
face down and placed a foot on her back and a gun to her head.
Id. at 12-13. The Court accepts these allegations as true for
the purposes of this motion. Plaintiffs contend that Maywood police officers' use of force
was excessive given the fact that they did not have probable
cause to believe that any Horne family member had committed a
crime or posed a danger to police. The Fourth Amendment prohibits
police officers from using excessive force during the execution
of a search or seizure. Jacobs v. City of Chicago,
215 F.3d 758, 773 (7th Cir. 2000).
A warrant to search for contraband that is founded upon
probable cause implicitly supplies officers with the limited
authority to detain residents while a search of the premises is
conducted. Michigan v. Summers, 452 U.S. 692, 705 (1981);
United States v. Price, 888 F.2d 1206, 1209 (7th Cir. 1989).
Because Maywood police officers had a valid warrant to search the
Hornes' apartment for drugs and contraband, it was permissible
for the officers to initially seize the residents. See Powers v.
Sliozis, No. 89 C 5020, 1991 WL 268667, at *5 (N.D. Ill. 1991).
The question of whether the officers acted within
constitutional bounds when they allegedly threw Valerie, Verina,
and Vernita to the ground and held a gun to their heads is more
complicated. But the Court need not reach this issue, as
plaintiffs have provided no evidence that Wheeler, the only
Maywood officer they have sued, participated in any of the
wrongful actions that plaintiffs cite.
To hold Wheeler liable under § 1983, he must have been
personally involved in the constitutional wrongdoing. Gibson v.
City of Chicago, 910 F.2d 1510, 1523 (7th Cir. 1990); Cygnar v.
City of Chicago, 865 F.2d 827, 847 (7th Cir. 1989); Powers,
1991 WL 268667, at *4. The uncontroverted evidence shows that
Wheeler did not participate in the entry into and the initial
sweep of the residence and thus could not have been involved in
the detention and handcuffing of any of the plaintiffs. Wheeler testified that his assigned duty was to patrol the back
entrance of the Hornes' apartment with a K-9 unit officer while
the other officers, the "entry team," secured the apartment.
Wheeler Dep. at 103, 120. He further testified that when he
entered the apartment for the first time, approximately five
minutes after the entry team, the family was already seated on
the couches in the living room. Id. at 120. Mazariegos'
testimony regarding the identity of members of the entry team and
the order in which they entered the house supports Wheeler's
testimony that he was not among the initial group of officers
entering the apartment. Mazariegos Dep. at 118-119.
Plaintiffs offered no evidence that would draw Wheeler's
statements into question. They simply respond that the Home
family members could not see the officers' faces and were
therefore unable to identify which officer took what action. Pls'
56.1 Resp. ¶ 58. The Court acknowledges that the Hornes are at a
disadvantage to refute Wheeler's position, as many of the
officers entering the apartment were wearing masks, but it does
not appear that plaintiffs have in any way attempted to discern
the identity of the officers through the discovery process. Given
the complete dearth of evidence that Wheeler participated in the
alleged use of excessive force, plaintiffs' claims against him
may not survive summary judgment. See Rand, 42 F.3d at 1146.
b. Claim against the Village
Neither side discusses whether the Village may be held liable
for the alleged excessive force used by its officers during the
search. As with the claim for unreasonable search and seizure,
the Hornes must provide evidence from which a jury reasonably
could find that an official policy or custom of the Village or
the Maywood police department caused the injury to plaintiffs.
See Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37,
260 F.3d 602, 620 (7th Cir. 2001). In their second amended complaint, plaintiffs contend that
the Village "lack[ed] adequate policies, procedure, training,
and/or supervision concerning the execution of a constitutionally
valid search warrant." Compl. at 6. But the Hornes have provided
no evidence or argument that a policy or custom of the Maywood
Police Department caused the alleged excessive force employed by
the officers. Consequently, the Village is entitled to summary
judgment on plaintiffs' excessive force claim.
3. Failure to knock and announce
a. Claim against Wheeler
The requirement that police officers executing a search warrant
on a dwelling knock and announce their identity and intention
before making a forcible entry is built into the Fourth
Amendment's prohibition on unreasonable searches and seizures.
Wilson v. Arkansas, 514 U.S. 927, 934 (1995); U.S. v.
Espinoza, 256 F.3d 718, 723 (7th Cir. 2001). Plaintiffs assert
that Wheeler and his fellow officers violated this rule by
failing to knock and announce their presence before breaking in
the door of the apartment to execute the search.
Plaintiffs' contention is based on Valerie, Verina, and
Vernita's testimony that they did not hear the Maywood police
announce their entry. Valerie testified that she was asleep on a
couch in the living room the morning of the search and was awoken
when the officers broke through the door. When questioned whether
she knew if the officers knocked, Valerie replied, "Well, I was
sleep. What woke me up, I could say, was the bust through the
door." Valerie Dep. at 33. Similarly, Vernita testified that she
was asleep in her bedroom in the basement when the police entered
the house. Vernita Dep. At 39. She believes that the crashing
noise the officers ramming the door woke her up, but she
testified that she heard nothing before the crash. Id. Verina testified that she was awake and in the kitchen at the
time the officers entered the apartment. Verina Dep. at 28-29.
She did not hear the officers come through the front door, but
she testified that she did hear her mother scream. Id. at 29.
Defendants maintain that Officer Patrick Grandberry, an entry
team officer, knocked on the apartment door twice, with each
repetition containing three knocks, and repeatedly yelled
"Maywood police, search warrant, open the door." Grandberry Dep.
at 37-39. Grandberry testified that he waited five to ten seconds
between the first and second knock and another five to ten
seconds after the second knock before forcing open the door.
Id. at 39. Wheeler and Mazariegos corroborate Grandberry's
testimony. Mazariegos Dep. at 120; Wheeler Dep. at 117.
All this is beside the point, however, as plaintiffs have
offered no evidence placing Wheeler among the officers who forced
their way through the door. Accordingly, there is no basis to
hold Wheeler legally responsible for the alleged failure to knock
b. Claim against the Village
The parties fail to discuss the Village's liability on the
knock and announce claim. The Court assumes this is because
plaintiffs can point to no municipal policy or custom that caused
their alleged injury. The Village is entitled to summary judgment
on plaintiffs' knock and announce claim.
4. Supplemental state law claims
Plaintiffs also assert supplemental state law claims against
Wheeler and the Village for assault and battery, intentional
infliction of emotional distress, and false imprisonment. Because
the Court has granted summary judgment in the defendants' favor
on each of the federal claims over which the Court has original
jurisdiction, the Court declines to exercise supplemental jurisdiction over plaintiffs' supplemental state law claims.
See 28 U.S.C. § 1367(a)(3); see also Montano v. City of
Chicago, 375 F.3d 593, 601 (7th Cir. 2004); Hoagland v. Town of
Clear Lake, 415 F.3d 693, 700 (7th Cir. 2005) (district court
wisely refused to exercise supplemental jurisdiction over
plaintiffs' state law claims after properly dismissing all
For the reasons stated above, the Court grants defendants
motion for summary judgment [docket no. 28]. The trial date of
January 9, 2005 is vacated. The Clerk is directed to enter
judgment in favor of defendants on Counts 1-3 of plaintiffs'
second amended complaint and dismiss the remaining counts for
lack of supplemental jurisdiction.
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