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Anna L. Mccadd and Harold Mccadd, Jr. v. William T. Murphy

December 21, 2010

ANNA L. MCCADD AND HAROLD MCCADD, JR. PLAINTIFFS,
v.
WILLIAM T. MURPHY, DAN LACKO, JOHN ELSTNER, DANIEL J. O'TOOLE, AND THE CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Judge Blanche M. Manning

MEMORANDUM AND ORDER

Twice in early 2009, Chicago police stormed the home of the plaintiffs, Harold McCadd and his 91-year-old mother, Anna.*fn1 On both occasions, police were looking for drugs or equipment used to package and distribute drugs. Police left without finding what they were looking for but, after the second search, arrested Harold nevertheless. Prosecutors eventually dropped the charges against Harold due to lack of evidence.

The McCadds sued the City of Chicago as well as the officers who searched their home and searched and arrested Harold, alleging violations of their constitutional rights as well as malicious prosecution. The defendants have filed a motion for summary judgment on all of the McCadds' claims. For the reasons that following, the motion for summary judgment is denied.

BACKGROUND

The following facts are undisputed except where noted. On January 24, 2009, Harold McCadd left his home at 9429 S. Loomis in Chicago to get a 7-Up for his mother from the corner store. After purchasing the soda, he ran into a friend who offered him a ride home. At the same time, several Chicago police officers were patrolling the 9400 block of south Loomis, and saw Harold return home and get out of his friend's car. The parties do not agree on what happened next. According to the defendants, two police officers observed Harold making hand-to-hand transactions with several different persons, and observed money changing hands. Harold disputes the officers' account, and contends that he merely said hello to a friend on the sidewalk and then attempted to enter his own house.

Before Harold could reach his front door, defendant officer Dan Lacko approached him and said "Drop it" and "You're under arrest." Harold told Lacko that all he had was a can of pop, which he dropped to the ground. Lacko then tackled Harold, knocked him to the ground, handcuffed him, and arrested him.

Lacko searched Harold, but found no contraband. Lacko then reached into Harold's pocket and removed his keys. In the meantime, other officers stopped the car that had dropped off Harold, but found no contraband there, either.

Another officer at the scene took the keys that Lacko had removed from Harold's pocket and entered his home unannounced. Harold's mother, Anna, was standing at the top of the stairs leading to the home's second floor. The officer pulled Harold to the front door and asked Anna if he was her son. She confirmed that he was and that he had gone to the store to purchase a 7-Up for her. The officers then (1) brought Harold into the home; (2) asked him which bedroom was his; (3) told Anna that Harold was under arrest; (4) told Anna that if there were any drugs in the home she could lose the home; and (5) that if she did not identify where the drugs were, they would bring dogs into her home.

Harold then asked officers if they had a warrant, to which they responded that they did not need one. One of the officers then put a consent to search form in front of Anna and asked her to sign it, but did not verbally ask for permission to search, did not advise her that she could refuse to sign the consent form, and did not read the consent form to her. Anna signed it without reading it because she feared that Harold would be taken to jail and beaten by police if she refused.*fn2 She completed signing the form within 30 seconds to one minute after officers first entered her home. Officers then searched the home, found no contraband, and removed Harold's handcuffs.

However, defendant officer John Elstner then ordered Harold to submit to a strip search, which Elstner performed in Harold's bedroom. Elstner contends that he was looking for guns or drugs on Harold's person. The parties agree that Elstner conducted the search visually and did not touch Harold. After Elstner found nothing during the strip search, the officers left, but warned the McCadds that officers would continue watching them and would return.

On February 18, 2009, officers returned, battering through the McCadd's front door with a ramming device and storming into the home with guns drawn. Police were there to execute a search warrant obtained by defendant officer William Murphy after a John Doe informant told him about buying crack cocaine from a man named "Harold" at 9429 S. Loomis. According to the John Doe informant, "Harold" had stated that his drug operation was up and running, had shown the informant a large plastic bag full of crack, told the informant that he had huge quantities of crack for sale, told the informant that crack was available to purchase at any time, and described Harold measuring the crack he sold to the informant using a scale.

Before seeking a warrant based on the John Doe informant's statements, Murphy checked Harold's criminal record, which Murphy contends revealed a prior arrest for cocaine possession, and showed the informant a picture of Harold McCadd and the McCadd home, which the informant positively identified. However, Murphy did not do the type of independent surveillance or controlled purchases he normally conducts prior to obtaining a search warrant. Murphy, defendant officer Daniel O'Toole, and the John Doe informant all signed a complaint for a warrant to search Harold and the McCadd home for cocaine or paraphernalia used to weigh, cut, or mix illegal drugs, which was issued by a state court judge.

Police searched Harold and his home for about an hour. After finding no drugs or paraphernalia on Harold or in his home, police brought in a drug-sniffing dog. The parties' account of what happened next diverges at this point. According to police, the drug-sniffing dog signaled that he had detected drugs in a back bedroom near a dresser. Officer O'Toole then searched the area near the dresser and found a plastic vial containing a white powdery substance he believed to be heroin rather than cocaine. The plaintiffs, however, contend that the drug-sniffing dog found nothing, and that officers recovered the plastic vial containing the white powdery substance from a suitcase in the attic, which Anna identified as talcum powder she used to freshen up when visiting relatives.

Officers were not sure what the white powdery substance was at the time, and they did not field test the substance, although they had kits with them that would have allowed them to test the substance and, in fact, officer Murphy admits that he should have tested the powder.

Officers also failed to find any of the objects the John Doe informant had described, such as large plastic bags containing crack cocaine or packaging paraphernalia such as a scale. Nevertheless, officers arrested Harold, and held him for more than a week until his family raised enough for bail. In the meantime, officer Murphy "cussed out" the John Doe informant for providing false information about the drugs and paraphernalia he told officers they would find in the McCadd home. Murphy has not used the informant again. The charges against Harold were eventually dropped nolle prosequi after laboratory tests revealed that the white powdery substance recovered from the McCadd home was not an illegal drug.

Based upon their experiences with the defendants, the McCadds filed suit alleging violations of their constitutional rights as well as claims under state law. Specifically, the claims in their Second Amended Complaint consist of the following: (a) a claim of unlawful search under 42 U.S.C. § 1983 against all of the defendants based upon both the January 24, 2009, and the February 18, 2009, searches of their home and of Harold (Count I); (b) a claim of unlawful arrest under 42 U.S.C. § 1983 against defendants Murphy, O'Toole and the City of Chicago based upon his February 18, 2009, arrest (Count II); (c) a claim of malicious prosecution under Illinois law against defendants Murphy, O'Toole and the City of Chicago (Count III); and (d) claims of respondeat superior (Count IV) and for indemnification (Count V) under Illinois law against the City of Chicago.

The defendants have moved for summary judgment on all of the McCadds' claims. In support, they argue that: (a) they are entitled to judgment on Count I because the January 24 search was with consent and the February 18 search was pursuant to a properly executed warrant; (b) they are entitled to judgment on Count II because either they had probable cause to arrest Harold on February 18 and were therefore entitled to conduct a search incident to arrest, or because they are protected by qualified immunity; (c) they are entitled to judgment on Count III because the probable cause they had to arrest Harold bars the McCadds' malicious prosecution claim; and (d) ...


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