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Pena-Bosque v. Lalley

February 2, 2006

IRMA PENA-BOSQUE AND JOSE BOSQUE, PLAINTIFFS,
v.
ELGIN POLICE DETECTIVES JIM LALLEY, TOM WOLEK, CHRIS JENSEN, DARREN MONTFORTI, ANA LALLEY, TOM CLANCY, ROBERT PTAK, SERGEANT GARY NEAL, LIEUTENANT SCOTT DAVIS, OFFICER TOM HILL, JEFFREY SCHULTZ, STEVE BIANCHI,AND MARSHALL KITE, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs Irma Pena-Bosque and Jose Bosque ("Plaintiffs") filed the present Complaint alleging that Defendant Elgin Police Officers unreasonably executed a search warrant in violation of their Fourth Amendment right against unreasonable searches and seizures. See 42 U.S.C. § 1983. Before the Court is Defendant Police Officers Chris Jensen's and Jim Lalley's Motion for Partial Summary Judgment pursuant to Federal Rule of Civil Procedure 56(c).*fn1 For the following reasons, the Court grant Defendants' Motion for Partial Summary Judgment.

BACKGROUND

I. The Search Warrant

At all times relevant to this matter, Defendant Jim Lalley ("Lalley") was a detective and Defendant Chris Jensen ("Jensen") was a police officer with the Gang Crimes Unit of the City of Elgin Police Department. (R. 29-1, Defs.' Rule 56.1 Stmt. Facts ¶¶ 4, 5.) Sometime in early July 2002, Detective Lalley applied for a warrant to search Plaintiffs' home at 256 South Lyle, Elgin, Illinois for instruments or articles that had been used in the commission of the unlawful possession of a firearm and firearm ammunition under Illinois statutes 430 ILCS 65/2 and 720 ILCS 5/24-3.1. (Id. ¶ 11.) As part of the application for the search warrant, Detective Lalley stated that a confidential informant had seen Plaintiffs' son, Sergio Bosque, with a firearm in Plaintiffs' home and that Sergio Bosque was a known member of the Latin Kings street gang. (Id. ¶ 12.) A judge for the Circuit Court for the Sixteenth Judicial Circuit of Kane County, Illinois, Criminal Division, issued the search warrant authorizing a search of 256 South Lyle for the following items: (1) any and all firearms; (2) any and all firearm ammunition; (3) any and all firearm related items; (4) items of indicia of residency and or control of the premises; and (5) any and all items of indicia of gang violence. (Id. ¶ 13.)

II. Tactical Response Team

The Elgin Police Department's Standard Operating Procedure requires that the Tactical Response Team ("TRT") execute search warrants when there is a possibility that suspects involved in the search might be armed with firearms or dangerous weapons, have a significant history of violence, or if other special circumstances exist. (Id. ¶ 14.) Because the search warrant at issue here included authorization to seize firearms, Detective Lalley involved the TRT to execute the warrant at 256 South Lyle pursuant to these standard procedures. (Id. ¶ 16.)

Before executing the search warrant, Detective Lalley assigned police officers to conduct surveillance of Plaintiffs' home. (Id. ¶ 17.) These officers reported to Detective Lalley that the individuals they observed on that day bore no relation to the warrant and had no criminal background. Detective Lalley relayed this information to the TRT supervisor. (Id. ¶¶ 17, 18.)

III. Execution of the Search Warrant

On July 10, 2002, one of the team leaders informed the TRT officers that they intended to execute a search warrant at 256 South Lyle, and it posed a high risk because a weapon might be involved. (Id. ¶ 19.) The TRT officers planned to enter the home and secure any individuals so that the search team could perform the search. (Id. ¶ 20.) That evening, the TRT officers wore black ballistic helmets over black hoods that exposed their eyes and noses. (Id. ¶ 21.) The officers also wore protective eye glasses, body armor, black load-bearing vests with "POLICE" written on them, black tactical belts, black cargo pants, and black boots. (Id.; R. 34-1, Pls.' Rule 56.1 Stmt. Facts ¶ 6.) The TRT officers carried firearms. (R. 29-1, Defs.' Rule 56.1 Stmt. Facts ¶ 21.)

Shortly after 9 p.m., Sergeant Rafferty knocked on the front door at 256 South Lyle and announced the police officers' presence. (Id. ¶ 22.) Sergeant Rafferty testified that he knocked on the Plaintiffs' front door yelling "Elgin Police, search warrant, Elgin Police, search warrant."

(R. 38-1, Defs.' Response, Pls.' Rule 56.1 Stmt. Facts ¶ 3.) Eventually, the police officers forced open the front door using a metal ram. (R. 29-1, Defs.' Rule 56.1 Stmt. Facts ¶ 23.) After entering Plaintiffs' home, some police officers went up the main staircase immediately inside the front door, while other police officers went down the main staircase. (Id. ¶ 24.)

While the other police officers were executing the search warrant, Officer Jensen was in Plaintiffs' backyard. (Id. ¶ 26.) His role was to stop anyone who ran out of the back door while the TRT officers entered and secured the home. (Id.) Officer Jensen eventually entered Plaintiffs' home to assist with the search after which he searched the contents of dresser drawers, emptying the contents of the drawers on the floor. (Id. ¶¶ 27, 28.) Officer Jensen did not pick up the contents of the drawers when he finished searching them. (Id. ¶ 29.)

Meanwhile, Detective Lalley went through Plaintiffs' entire home and stated that during the search, he observed search team members put items on the floor and that the officers did not pick up the items after their search. (Id. ¶¶ 31, 32; R. 34-1, Pls.' Rule 56.1 Stmt. Facts ¶ 14.) In his deposition testimony, Detective Lalley explained that during a search, after a police officer searches an item, he places the item in one area of the room so that the other police officers know that officers have already searched those items. (R. 29-1, Defs.' Rule 56.1 Stmt. Facts ¶ 33.) The search of Plaintiffs' home ...


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