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Cooper v. Dailey

September 23, 2010

CHICAGO POLICE OFFICERS S. DAILEY, NO. 10890, M. BONNSTETTER, NO. 15963, F. MACK, NO. 198404, J. FRANO, NO. 11772, R. PUCILLO, NO. 16850, W. JOHNSON, NO. 17442, A. MONACO, NO. 19253, S. LAURETTO, NO. 5882, V. FICO, NO. 6284, L. WILLEMS, NO. 7394, M. NAPOLI, NO. 9560, S. REINA, NO. 2622, D. ROSS, NO. 177, G. DE SALVO, NO. 218, AND THE CITY OF CHICAGO, DEFENDANTS.

The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Markee Cooper, Sr., individually and on behalf of his minor sons Zion and Markee, Jr., filed a first amended complaint [56] asserting claims under Illinois state law and 42 U.S.C. § 1983 against the City of Chicago and fourteen individual Chicago police officers (the "Defendant Officers"). All of Plaintiffs' claims arise out of the February 17, 2007 search of their home by the Defendant Officers, which was conducted pursuant to two search warrants issued based on information that Defendants contend was provided by a confidential informant.

Currently before the Court is Plaintiffs' motion for summary judgment against the City of Chicago as to liability on Counts III, IV, and V. [110]. Counts III, IV, and V all allege violations of Plaintiffs' Fourth Amendment rights to be free from unreasonable searches and seizures. Count III alleges that the search warrants which led to the initial search and detention of the Plaintiffs were invalid when issued, because they were based on false information provided by Defendant Officer Dailey. Counts IV and V allege that even if the Defendant Officers had probable cause to initially detain Plaintiffs and search their home, the subsequent search by the canine unit and the attendant detention were unlawful because they occurred after probable cause had dissipated.*fn1 Plaintiffs seek to impose liability on the City under Monell v. Dep't. of Social Servs. of City of New York, 436 U.S. 658 (1978) and its progeny, alleging that the City's policies, practices, and customs pertaining to the registration and use of confidential informants caused these violations. For the reasons stated below, Plaintiffs' motion is respectfully denied.

I. Background

The Court takes the relevant facts primarily from the parties' Local Rule ("L.R.") 56.1 statements:*fn2 Plaintiffs' statement of facts ("Pl. SOF") [111]*fn3 , the City's response to Plaintiffs' statement of facts ("City Resp.") [121], the City's Statement of Additional Facts ("City SOAF") [122], and Plaintiffs' Response to the City's Statement of Additional Facts (Pl. Resp.) [133]. In its Order of March 31, 2010, the Court denied Plaintiffs' motion for partial summary judgment as to liability on Count V, finding that whether the Defendant Officers reasonably should have known that there was a mistake in the warrants (and therefore should have immediately called off their search) was a genuine question of material fact for the trier of fact. [Dkt. 142]. In the March 31 Order, the Court provided background relevant to the events of February 16 and 17, 2007, which it will not repeat here.

A. Chicago Police Department's Policies Regarding Confidential Informants

The Chicago Police Department allows its officers to use information provided by confidential informants ("CIs") to obtain search warrants and for other purposes. At the time of the allegedly illegal search of Plaintiffs' home,*fn4 Department Special Order ("D.S.O.") § 01-07 governed preparation, review, and approval of complaints for search warrants and search warrants. Pl. Resp. ¶ 10. Under D.S.O. § 01-07, an officer preparing a complaint for a search warrant and the warrant itself must ensure that both accurately and specifically describe the person or premises to be searched and the articles to be seized. D.S.O. § 01-07(V-A). The officer preparing a search warrant must then present the search warrant application to "the unit commanding officer/watch commander" who must review it "in light of statutory and constitutional requirements." Pl. Resp. ¶ 11; D.S.O. § 01-07 (V-B). The commanding officer/watch commander must determine that the facts alleged in the complaint are credible and reliable, that the facts were properly obtained, that the investigation leading up to the need for the search warrant was thorough, that the targets for search are specifically and accurately described, that the technical aspects of the complaint are correct (e.g. dates, times, spelling), and that probable cause for the issuance of the search warrant is stated in the complaint. § 01-07 (V-B.2). The commanding officer/watch commander must interview the officer requesting the search warrant if verification or clarification is needed. Pl. Resp. ¶ 11; D.S.O. § 01-07 (V-B). In addition to his or her customary review of the warrant application, if the search warrant application "is based upon information received from a confidential informant and not from a named citizen," the unit commanding officer/watch commander must review "documented evidence which must either substantiate the claim of prior use of the particular informant or clearly indicate that an investigation undertaken as a result of the information received validates an assertion of probable cause." Id.

After the commanding officer/watch commander indicates his or her approval of the application, the officer seeking the search warrant must then obtain approval from a Cook County Assistant State's Attorney. Pl. Resp. ¶ 12; D.S.O. § 01-07 (VI.A). Finally, a judge must approve and sign the warrant application. Pl. Resp. ¶ 12; D.S.O. § 01-07 (VI-C-D).

While D.S.O. § 01-07 mentions the use of CIs in obtaining warrants, it does not discuss how records and files on CIs are to be kept. At the time of the incident, the Chicago Police Department's Organized Crime Division ("OCD") maintained confidential files on certain CIs who worked with OCD officers. The files contained, among other things, identifying information on each informant such as the informant's age, alien or non-alien status, and criminal history. City Resp. ¶¶ 56, 57, 60. OCD officers were required to register a CI in the OCD's files in order for that CI to become eligible to be paid for his services out of "15-05" funds or be given letters of consideration to present to prosecutors in connection with pending criminal charges. Pl. Resp. ¶¶ 17, 18. If the CI had not tried to receive benefits, OCD officers "could register them, but they are not required to." Pl. Resp. ¶ 18.

While officers outside the OCD were allowed to use CIs, they were not allowed to register their CIs in the OCD registry. City Resp. ¶¶ 15, 16. The Chicago Police Department, at the time, did not impose any particular record-keeping requirements on officers outside the OCD who used confidential informants. City Resp. ¶¶ 18, 43, 49. Similarly, officers were not required to verify the identity or background of CIs before using them. City Resp. ¶ 17. Further, the Chicago Police Department did not then require officers to bring CIs before a judge when obtaining search warrants based on information provided by those CIs. City Resp. ¶ 19.

In June 2007, the Chicago Police Department propounded D.S.O. § 07-06, which superseded D.S.O. § 01-07. Pl. Resp. ¶ 14. The new policy, among other things, specifies procedures for search warrants premised on information obtained from "John Doe" individuals (individuals who wish to remain anonymous but who are not regular informants), "unregistered cooperating individuals" (confidential informants who have given "repeated, documented, and verified" information in the past but who have not been compensated for their information and who are not registered in the OCD system") and "registered cooperating individuals" (informants who are registered with the OCD). § 07-06 (IV). Under the new policy, officers must maintain a file for each unregistered cooperating individual to document the identity, reliability, and credibility of the informant. Id. The file is to include all police reports, lab reports, and search warrants related to information provided by that informant, going back two years. Id.Under the new policy, John Doe individuals must be presented to the judge approving the search warrant. Id. The new policy, like D.S.O. § 01-07, requires all search warrant applications to be reviewed by the unit commanding officer/watch commander and by a Cook County Assistant State's Attorney. Id. The Police Department's Research and Development Division began work on drafting D.S.O. § 07-06 sometime in 2006, prior to the incident at issue in this case. Pl. Resp. ¶ 15.

B. Defendant Officer Dailey's Use of Confidential Informant "Lamar"

As discussed in this Court's Order of March 31, 2010, Defendant Officer Dailey swore out two complaints for warrants to search Plaintiffs' residence largely on the basis of information provided by "Lamar," a confidential informant. The Plaintiffs' theory is that Lamar does not exist; accordingly Plaintiffs contend that the information included by Dailey in the complaints for search warrants was entirely fabricated.

Officer Dailey, on the other hand, testified that he first met Lamar in 2005. City Resp. ¶ 142. Dailey testified that he had used information from Lamar on three prior occasions, with each occasion leading to arrests for guns or drugs. Pl. Resp. ¶¶ 20-22. Prior to the incident in issue, Lamar "never" gave Dailey information that did not lead to an arrest or the recovery of a gun. Pl. Resp. ¶ 23. Defendant Officer Bonnstetter testified that he met Lamar on approximately ten separate ...

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