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Rivera v. Burke

February 7, 2008

LISANDRO RIVERA, PLAINTIFF,
v.
CHICAGO POLICE OFFICERS JOHN J. BURKE, STAR NO. 3267 AND F. GONZALEZ, STAR NO. 12316, INDIVIDUALLY AND AS EMPLOYEES/AGENTS OF THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER

Defendant Officers John J. Burke and Francisco Gonzalez (collectively referred to as "Defendants" or "Defendant Officers") have moved the Court to grant summary judgment against plaintiff Lisandro Rivera ("Plaintiff"), pursuant to Federal Rule of Civil Procedure 56(c), on the two counts that remain in Plaintiff's complaint. For the reasons provided below, the Court grants Defendants' motion and enters judgment in favor of Defendants.

I. Background

As required for purposes of summary judgment, the facts here are presented in the light most favorable to the nonmoving party, the Plaintiff Lisandro Rivera.*fn1

A. Traffic Stop and Arrest

On February 7, 2005 at approximately 11p.m., Plaintiff was driving southbound on the 2400 block of Springfield when he was ordered by police, on a loud speaker, to pull over.*fn2 According to Defendants, they pulled him over for failing to display a front license plate and for hanging objects from his rearview mirror.*fn3 Plaintiff had a rosary and a baby bootie that was about an inch and a half big hanging about two inches down from his rearview mirror by a one inch string shoelace.*fn4

Defendants and Officer Grissett (who is not a defendant) then approached his vehicle.*fn5 One of the officers told Plaintiff to exit his vehicle, which he did.*fn6 Upon exiting the vehicle, Plaintiff attempted to hand the African American officer his driver's license and registration.*fn7 He was told by the officer that he did not need that information at that moment.*fn8 The African American officer then searched Plaintiff's body while Plaintiff placed his hands on the hood of the police squad car.*fn9 At the same time, Officer Burke began searching Plaintiff's vehicle.*fn10 Officer Burke ripped out the center console of Plaintiff's vehicle and found one plastic baggy containing four small, knotted baggies, each containing what was later confirmed to be cocaine.*fn11 Plaintiff was then placed under arrest and asked for his driver's license, which, along with the property from his pockets, was on the hood of the vehicle where he had been told to put his hands.*fn12 Officer Gonzales ran Plaintiff's driver's license and learned that it was suspended.*fn13

B. Resulting Charges

The incident on February 7, 2005 resulted in four charges being brought against Plaintiff:

(1) possession of a controlled substance in violation of 720 ILCS 570.0/402-C; (2) driving on a suspended driver's license in violation of 625 ILCS 5.0/6-303-A; (3) driving with obstruction of driver's view in violation of the Municipal Code of Chicago, Section 9-40-250(B) ; and (4) failure to display a front license plate in violation of the Municipal Code of Chicago, Section 9-76-160(A).*fn14

Prosecutors nolle prosequied the charge for driving with a suspended driver's license, non-suited the traffic offenses, and proceeded on a charge for possession of a controlled substance.*fn15

C. Criminal Proceedings

On March 3, 2005 Defendant Officer Burke testified at a preliminary hearing in the Circuit Court of Cook County.*fn16 He testified about the events on February 7, 2005, specifically, that he noticed items hanging from Plaintiff's rearview mirror, curbed the vehicle, a check revealed that Plaintiff's driver's license was suspended, resulting in Plaintiff being placed in custody.*fn17 Officer Burke testified he did a search of Plaintiff's vehicle after Plaintiff was placed in custody and found a plastic baggy containing four smaller knotted bags.*fn18 He testified those items found in the vehicle were inventoried and later tested positive for 1.4 grams of cocaine.*fn19 On cross examination, Officer Burke testified that he did not recall what was hanging from Plaintiff's rearview mirror, but believed one item was a rosary and also testified that obstruction of view was the sole basis for the traffic stop.*fn20

On July 14, 2005, Plaintiff testified at a hearing on Plaintiff's Motion to Quash and Suppress Evidence in the Circuit Court of Cook County.*fn21 Plaintiff testified that he was pulled over and one of the Defendant Officers asked him to step out of his vehicle, at which point he put his hands on the vehicle while one officer searched him and another officer searched his vehicle.*fn22 The officer that searched the vehicle, according to Plaintiff, ripped out the center console of his car and found drugs in his vehicle.*fn23 At the time of the search, Plaintiff testified he had not yet shown Defendants his driver's license but, after the search, one of the Defendant Officers ran his driver's license, learned it was suspended, and then arrested him.*fn24

Officer Gonzalez and Officer Burke also testified at this hearing. First, Officer Gonzalez testified that the reason for the traffic stop was twofold: no front license plate and obstruction of view.*fn25 When asked what items were hanging from Plaintiff's rearview mirror, Officer Gonzalez testified that he did not remember.*fn26 Relating to the arrest, Officer Gonzalez testified that he heard Officer Burke ask Plaintiff for his driver's license, Officer Burke ran his driver's license, found it was suspended, asked Plaintiff to step out of the vehicle, and Officer Burke then placed him under arrest for having a suspended license.*fn27 Officer Gonzalez testified that it was after the arrest that a search of Plaintiff's vehicle revealed suspect cocaine.*fn28 On cross examination Officer Gonzalez testified he did not believe he removed the objects hanging from the rearview mirror before driving Plaintiff's vehicle back to the station and, when asked if he would have driven the vehicle if it was not safe, he answered no, he would not. In contrast, Officer Burke testified that he did not check ...


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