The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on: (1) Defendant Paul Carpenter's Motion for Summary Judgment (d/e 174) (Carpenter Motion); (2) Defendant James Graham's Motion for Summary Judgment (d/e 175) (Graham Motion); (3) Defendants City of Springfield, Welsh, Wooldridge, and Rouse's Motion for Summary Judgment (d/e 172) (City Motion); and Defendant Rickey Davis' Motion for Summary Judgment (d/e 176) (Davis Motion). For the reasons set forth below, the Davis Motion is ALLOWED; the City Motion is ALLOWED in part and DENIED in part; the Carpenter Motion is DENIED, and the Graham Motion is DENIED.
In March 2005, the individual Defendants were all police officers employed by the Springfield, Illinois, Police Department (Department). William Rouse was Deputy Chief of Police. Rickey Davis was a Lieutenant. Defendants Paul Carpenter, James Graham, S. Welsh, and J.T. Wooldridge were detectives. Rouse was in charge of Criminal Investigations. Defendants Carpenter, Graham, Welsh and Wooldridge were assigned to Criminal Investigations.
In March 2005, Plaintiffs Larry Washington and Jennifer Jenkins lived at 1429 Guemes Court, Springfield, Illinois (Residence). Washington was a convicted drug dealer and a former member of a gang called the Vice Lords. Defendants' Exhibits (d/e 178) (Defendants' Exhibit), Exhibit 2, Deposition of Larry Washington (Washington Deposition), at 50. Graham stated in his deposition that on March 15, 2005, he had a conversation with Alcohol, Tobacco, and Firearm (ATF) Agent John Carpenter about Washington's possible connection to a homicide investigation. Defendants' Exhibit 1, Deposition of James Graham (Graham Deposition), at 81. John Carpenter did not recall any such conversation and was not aware of any ongoing investigation involving Washington.*fn1 Defendants' Exhibit 5, Deposition of John Carpenter (John Carpenter Deposition), at 50. Defendant Carpenter stated that on March 15, 2005, he and Graham drove by the Residence and Graham pointed out Washington to Carpenter. Defendants' Exhibit 4, Deposition of Paul Carpenter (Carpenter Deposition), at 72. Graham agreed that the two of them drove past the Residence that day. Graham stated initially in his deposition that he did not recall seeing Washington at that time, but later in his deposition, stated that he saw Washington at that time. Graham Deposition, at 55, 86.
Graham stated that on the morning of March 16, 2005, Carpenter told Graham that he had observed a trash can at the curb outside the Residence. Graham Deposition, at 49. Graham removed the trash from the can in front of the Residence. Graham then took the trash to a different location where Graham and Carpenter searched the trash. Id., at 53. This type of search is referred to as a "trash pull" or "trash rip." See Graham Deposition, at 32. Springfield Police Chief Donald Kliment had issued an order not to perform trash rip searches. Defendants' Exhibit 15, Deposition of Donald Kliment (Kliment Deposition), at 21-23, 55-56. Graham and Carpenter stated that they were not aware of any such order. Graham Deposition, at 166-67; Carpenter Deposition, at 63. Carpenter stated that the trash rip search at the Residence occurred at 7:45 a.m. Carpenter Deposition, at 84. Graham stated that the search occurred at 8:30 a.m. Graham Deposition, at 51. Graham's written report on the trash rip search stated that the trash rip search occurred at 10:00 a.m. Plaintiffs' Memorandum of Law in Response to Defendant Carpenter's Motion for Summary Judgment (d/e 192), attached Plaintiffs' Exhibits (Plaintiffs' Exhibit), Exhibit J, Police Report dated March 21, 2005 (Police Report). According to Graham, the "10:00 a.m." time on the report reflected the time on March 16, 2005, when he contacted the Department dispatcher to request a file number for the search. Graham Deposition, at 62, 64-65.
Washington stated that he did not place any trash on the curb that day. Washington Deposition, at 194. The records of the trash hauling company contained a notation that the trash haulers were at the Residence at 9:55 a.m. that day, but no trash was picked up from that property. Plaintiffs' Exhibit C, Waste Management Customer Internal Comments for Larry Washington. That trash hauling company made such a notation on its records if: (1) no trash can was placed at the curb to be picked up, or (2) trash cans were placed at the curb, but the cans were empty. Plaintiffs' Exhibit B, Deposition of Jeff Mjelde, at 13.
Graham and Carpenter stated that they found the following in the trash taken from the Residence on March 16, 2005: (1) mail addressed to Washington; (2) a handwritten note with amounts of money written on it, starting with a sum of $30,000.00; (3) two quart-sized plastic baggies with the corners cut off and one whole plastic baggie; (4) a small amount of residue on the bags; (5) a Starcrest dry cleaning receipt with the name of B. Hollywood on it; and (6) a handwritten construction plan with the name of Hollywood on it. Graham Deposition, Deposition Exhibit 2, Complaint for Search Warrant, attached Affidavit of James Graham (Affidavit). Later tests showed that Washington's fingerprints were on some of the found items. Defendants' Exhibit 3, Deposition of La Vonne Odele, at 30-33. Washington admitted that the items belonged to him, but denied that he placed the trash on the curb that day. He did not know how the Defendants came into possession of the items. Washington Deposition, at 128.
Carpenter stated that he field-tested the residue in the plastic baggies.
Carpenter stated that the tests were positive for cocaine. Carpenter Deposition, at 87. The Illinois State Police laboratory later ran tests on the baggies. Those tests were negative for cocaine. Plaintiffs' Exhibits, Exhibit D, Illinois State Police Forensic Laboratory Report dated June 15, 2006. An Illinois State Police lab technician stated that the field test may have removed the drug residue from the bags. Defendant Carpenter's Reply to Plaintiffs' Memorandum of Law in Response to Defendant Carpenter's Motion for Summary Judgment (d/e 200 Attachment 1) (Carpenter Reply), Exhibit B, Deposition of Amy Parker, at 43-46, 51.
Graham then prepared a request for a search warrant for the Residence, along with a supporting Affidavit. Affidavit. The Affidavit contained the following information: (1) a summary of Washington's criminal record and gang affiliation; (2) a statement that two automobiles parked at the Residence were registered to Washington; (3) a list of the items that Graham and Carpenter state that they found in the trash from the Residence; (4) a statement that the baggies tested positive for cocaine; and (5) a statement that a computer check indicated that Jenkins had a drivers license with 1429 Guemes listed on it. Id. Neither Graham nor Carpenter, however, recalled conducting a computer check regarding Jenkins' drivers license, and Jenkins stated that her drivers license did not list 1429 Guemes on it. Carpenter Deposition, at 91-93, 108-09; Graham Deposition, at 46, 50.*fn2 An Illinois Associate Circuit Judge reviewed the Affidavit and issued the warrant.
On March 17, 2005, Defendants Graham, Carpenter, Welsh, and Wooldridge searched the Residence pursuant to the warrant. The search was conducted between 6:43 a.m. and 11:53 a.m. Graham Deposition, at 103. The Plaintiffs were also present, along with Washington's minor son, and Sangamon County, Illinois, Assistant State's Attorney Randy Blue. Other law enforcement officers participated in the search, including Alcohol, Tobacco, and Firearms (ATF) Agents Tom Dart, John Carpenter, and Pete Pappas; and Sangamon County, Illinois, Deputy Brian Stapleton, with his dog that was trained to detect drugs.
The officers stated that, during the search, Washington fidgeted whenever an officer walked near the kitchen pantry. E.g., Carpenter Deposition, at 126-27. ATF Agent Pappas searched the pantry three or four times, but found nothing. John Carpenter Deposition, at 60. Deputy Stapleton also searched the pantry with his dog, but the dog did not alert on anything in the pantry. Graham Deposition, at 128.
Toward the end of the search, someone directed officers to search the pantry again. John Carpenter Deposition, at 101. Wooldridge then searched the pantry and stated that he found cocaine in two graham cracker boxes on the top shelf. According to Wooldridge, the bottoms of the boxes had been opened, the cocaine had been placed in the center of the boxes, between packets of graham crackers, and then the bottom of the boxes had been resealed with glue. Defendants' Exhibit 6, Deposition of J.T. Wooldridge (Wooldridge Deposition), at 43-47, 56-58. Jenkins' fingerprints were found on one of the graham cracker boxes. Defendants' Exhibits, Exhibit 10, Deposition of Tracy Sulwer, at 26-27. Washington was arrested and charged with manufacture/delivery of a controlled substance. He was released on bond.
Washington denied that any cocaine was in the Residence before the search occurred. Washington Deposition, at 130, 133, 135. The Plaintiffs believed that the Defendants planted the cocaine in the house. The Plaintiffs did not identify a reason why the Defendants would have planted cocaine in the Residence. Washington Deposition, at 137; Defendants' Exhibit 11b, November 17, 2008 Deposition of Jennifer Jenkins, at 24.
On March 21, 2005, Graham prepared a report on the search of Washington's trash on March 16, 2005. Graham Deposition, at 59-60. On October 18, 2005, the return on the execution of the warrant was filed. This was seven months after the search. Graham Deposition, at 102-03. According to Department policy, the return should have been filed promptly.
Thirteen months later, on April 26, 2006, the Department's Director of Human Relations Lawrence W. Selinger issued a letter to Defendant Davis granting Davis' request for medical leave. The letter stated in part:
You have notified us of your need to take family medical leave due to a health condition that makes you unable to perform the essential functions of your job. Under the federal Family and Medical Leave Act (FMLA), . . . you may take up to twelve (12) weeks of family medical leave in a twelve (12) month period. You are eligible for leave under the FMLA, and the requested leave will count against your annual family medical leave entitlement. . . . .Your FMLA leave began on April 17, 2006 and you are eligible for FMLA leave through July 17, 2006. . . . . . . .
Prior to your return to work you must submit the attached job description to your physician and obtain a written release from him/her stating that you are able to perform the essential functions of your job. Your return to ...