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Cleveland v. Liberio

August 24, 2009


The opinion of the court was delivered by: Judge Joan B. Gottschall


Plaintiffs Theodore and Lolita Cleveland (the "Clevelands") filed a one-count complaint under 42 U.S.C. § 1983 against Nicholas Liberio alleging that Liberio entered their home under color of law in violation of the Fourth Amendment to the Constitution. Liberio moves for summary judgment. His motion is denied.


Nicholas Liberio is a detective for the City of Naperville who on Friday, February 11, 2005, was assigned to investigate an attempted armed robbery that occurred on February 10, 2005. The attempted robbery proceeded as follows: a man knocked on the window of a car driven by Jessica Berger in the driveway of a residence. As Berger opened the window in response to the knock she saw that the man was holding a small silver gun, which he raised and pointed at her. The man then asked Berger to hand over her purse but as she reached to grab it Gregory Borgacz stepped out of his home and the assailant ran off. Berger believed that the man who knocked on her window might be someone she identified as "Justin Gateway." Eric Burnham, Borgacz's father and the owner of the home where the attempted robbery occurred, told the police that he had seen a four-door Chevrolet with an orange sticker in the window on the street in front of his house when he stepped out his front door after the attempted robbery. A report that Liberio received on Friday, February 11, 2005 identified Justin Gatewood as the owner of a white 1994 Chevrolet Corsica. That same Friday, Liberio showed Burnham pictures of Gatewood's car and Burnham identified the car as the one he saw just after the attempted robbery.

Liberio located Gatewood's Chevrolet three days later on Monday, February 14, 2005, in the parking lot of Neuqua Valley High School; he subsequently arrested Gatewood and Jonn Haywood at the high school and they both confessed to their roles in the attempted robbery and said that Terrence Cleveland also participated in the planning and execution of the robbery. Haywood claimed that he had attempted to rob Berger with a BB gun and admitted to having the gun in a basement storage room. After receiving permission from Haywood and his father to search the Haywood home for a BB gun, Liberio took possession of the weapon Haywood said he used in the attempted robbery.

Liberio later made his way to the Clevelands' home with his partner Jamie Griffith. Liberio knocked on the door and eventually someone answered.*fn2 When Theodore Cleveland arrived at the door Liberio asked if he could speak with Terrence. Liberio also asked if he could enter the house and Theodore denied him permission. Terrence made his way downstairs.

The parties present conflicting accounts of what occurred after this point. Liberio contends that he never entered the Clevelands' home. The Clevelands contend that Liberio forced his way past Theodore into the house and, after pushing Theodore aside, grabbed Terrence and dragged him out of the house.

The parties agree that Liberio had probable cause to arrest Terrence, but lacked a warrant. Liberio testified that obtaining a warrant would have taken three to four hours.


Summary judgment is warranted 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); Brengettcy v. Horton, 423 F.3d 674, 680 (7th Cir. 2005). All facts, and any inferences to be drawn from them, must be viewed in the light most favorable to the non-moving party. Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008).

While Liberio has admitted that there is a fundamental dispute as to whether or not he actually entered the Clevelands' home, he presents a series of legal arguments which he claims warrant summary judgment even if the Clevelands' account of the events is presumed true.

A. Warrantless Entry is Permissible in Exigent Circumstances

Liberio contends that his warrantless entry into the Clevelands' home was sanctioned by the Fourth Amendment because he had probable cause to arrest Terrance Cleveland and exigent circumstances existed which did not leave Liberio the three to four hours that it would have taken for a warrant to be obtained. The situation was exigent, in Liberio's view, because Terrence Cleveland presented an immediate and continuing threat to the safety of Jessica Berger, the individual victimized by the attempted armed robbery, and Gregory Borgacz, the man who frustrated that robbery by exiting his home. Liberio also cites the possibility that Terrence Cleveland would destroy evidence as an additional reason for entering the Clevelands' home without a warrant.

Minnesota v. Olson, 495 U.S. 91 (1990) is instructive. Olson upheld the Minnesota Supreme Court's finding that a violation of the Fourth Amendment occurred where -- without a warrant -- police entered the living quarters of a man who was suspected of being an accessory to an armed robbery that resulted in murder (Olson was the suspected driver of the getaway ...

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