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Covington v. United States Dep't of Justice

March 8, 2007

JOHN E. COVINGTON, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Joe Billy McDade United States District Judge

ORDER

Before the Court is Plaintiff's Motion for Summary Judgment [Doc. 55] Plaintiff's Motion for a Hearing on the Motion for Summary Judgment [Doc. 56], and Defendant's Motion for Summary Judgment [Doc. 64]. For the following reasons, Plaintiff's Motions [Doc. 55, 56] are DENIED, and Defendant's Motion [Doc. 64] is GRANTED.

I. BACKGROUND

On October 8, 2004, law enforcement officials entered the residence of John Covington Sr. ("Covington Sr") in an effort to find John Covington Jr. ("Covington Jr") whom they suspected was hiding inside. However, a search revealed that he was not where they suspected. Covington Sr is now bringing a pro se suit against the United States Department of Justice and all the officials involved alleging that his constitutional rights were violated by the entry and subsequent search. The facts leading up to the arrest and the arrest itself are as follows:

Prior to the fall of 2004, the Covington family lived at 313 West Barrington, in Peoria Illinois ("313 W. Barrington"). At the time, the United States Marshal Service Great Lakes Task Force ("Task Force") was conducting surveillance into the whereabouts of Covington Jr. The 22-year-old Covington Jr had outstanding arrest warrants from three different Illinois Counties for charges of burglary, failure to appear and theft. (Doc. 64 at 27.) All three arrest warrants were issued during the summer of 2004, and all three stated that Covington Jr's address was 313 W. Barrington - the same address as his parent's home.

One of the officials looking for Covington Jr was Task Force Officer ("TFO") Jim Smith. In June of 2004, TFO Smith spoke with neighbors and they told Smith that Covington Jr was using the residence at 313 W. Barrington. Then in August, Smith spoke to Covington Jr's sister about locating him. Within twenty minutes of talking to the sister, Smith received a phone call from Covington Jr. The call was placed from a gas station that was two blocks from 313 W. Barrington. This led Smith to conclude that if the family was not at least assisting Covington Jr in hiding from the Task Force then they were at least aware of his whereabouts. Then, in September, the Task Force became aware that the Covington family had moved from 313 W. Barrington to 716 East Wilcox Street, Peoria, Illinois ("716 E. Wilcox").*fn1

Smith drove by the residence at 313 W. Barrington on September 27, 2007 and found the residence empty. Then, on October 5, Smith learned from the United States Postal Service that the family had forwarded their mail from 313 W. Barrington to 716 E. Wilcox. Specifically, Karen Covington, the mother of the house, had checked the box on the United States Postal Service form so the entire family's mail would be forwarded to the new address.

On October 7, Smith went to 716 E. Wilcox and "sat surveillance." However, Smith did not see anything other than two vehicles which were both registered to Karen Covington. Then, on October 8, Smith returned with other members of the Task Force including TFO D. Quinn, TFO Mark Blaine, and Deputy United States Marshal Glenn Williams. Around 1:00 pm Smith began knocking on the front door and when he did the other officers observed an individual pull back blinds and look out an upstairs window overlooking the driveway. However, the officers were not able to see who was inside. In addition, the officers heard movement inside the house, but no one came to the door. The officers continued knocking on the front and rear doors for over ten minutes with no answer so they then returned to "sitting surveillance." Around 3:00 pm the officers were joined by United States Marshal Kevin Jackson, United States Marshal Bruce Harmening, and Kevin Kirwan of the Peoria Police Department.

At 3:18 pm, a maroon Buick passed Smith and Smith noticed that it was driven by Covington Sr. Smith was previously aware that Covington Sr's driver's license had been expired for approximately five years. Covington Sr pulled into the driveway at 716 E. Wilcox, got his five-year-old daughter from the car and took her into the house.

After Covington Sr entered the house, the law enforcement officials approached the house and knocked on both the front and rear doors. They knocked for approximately five to ten minutes. Covington Sr then came to the door and confronted the officers.

According to the Defendants, Jackson asked Covington Sr if "John Covington" was home. Covington Sr replied that he was John Covington. Jackson then asked for Covington Jr, and Covington Sr replied that his son did not live there. Jackson followed up and asked if Covington Sr himself lived at 716 E. Wilcox. Covington Sr stated that he also did not live there. Jackson also inquired about the mail which was being sent to that address. Covington Sr stated that any mail that came to that address that was addressed to "John Covington" was for him and not his son. Finally, Jackson asked whether anyone else was home and Covington Sr stated that there was no one else inside.

Upon hearing this, the Defendants believed that Covington Sr was lying. At the very least, Covington Sr's youngest daughter was inside since the officers had just seen Covington Sr enter with the young girl. In addition, the officers had also seen and heard movement in the house before Covington Sr arrived. Accordingly, the Defendants suspected that Covington Sr was also lying about whether Covington Jr was inside and they attempted to enter the premises. When Covington Sr resisted, they placed him under arrest for resisting their entry. They then set Covington Sr in a chair and conducted a search of the premises which revealed that Covington Sr's two daughters, ages 5 and 18, were both inside. However, Covington Jr was nowhere to be found.

Covington Sr's evidence regarding the entry and search is somewhat sparsely laid out in his affidavit attached to his Response to the Motion for Summary Judgment. According to the affidavit, Covington Sr agrees that the Defendants asked if John Covington Jr was home and he stated that he did not live there. (Doc. 67 at p. 15.) The affidavit does not describe in any greater detail the conversation which occurred prior to the Defendants entry. However, according to the affidavit when the Defendants did enter his home in search of the fugitive he "resisted" the officers entry and was placed in handcuffs and set in a chair - at which point they allegedly injured Covington Sr's back. (Id.) The only additional 'evidence' which Covington Sr provides regarding the conversation leading up to the Defendant's entry is a statement in his affidavit that he "gave no false response to any of the officers before they entered his home on October 8, 2004." (Doc. 67 at p. 16.)

Covington Sr was asked in his deposition about the conversation prior to the officer's entry into the house and he stated that he did not recall what ...


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