Argued Sept. 26, 2013.
Irene K. Dymkar, Chicago, IL, for Plaintiff-Appellant.
Daniel Francis Gallagher, Querrey & Harrow, Myriam Z. Kasper, Office of the Corporation Counsel, Chicago, IL, Ruth F. Masters, Oak Park, IL, for Defendants-Appellees.
Before POSNER, MANION, and KANNE, Circuit Judges.
POSNER, Circuit Judge.
The plaintiff sues under 42 U.S.C. § 1983, charging four Chicago police officers— May, Carroll, Town, and Pickett— with unlawful search (primarily a strip search), unlawful seizure (primarily a false arrest), and conspiracy, all in violation of the Fourth Amendment (made applicable to state action by interpretation of the due process clause of the Fourteenth Amendment), and adding a supplemental state law claim against the same defendants, plus the City of Chicago, charging malicious prosecution. The case was tried to a jury, which returned a verdict exonerating all the defendants. The plaintiff asks us to reverse and order a new trial because of procedural errors that he contends the district judge committed.
From the evidence admitted at trial a reasonable jury could have found the following facts. On the evening (a cold one) of November 7, 2007, the officers— white men in plain clothes, riding in an unmarked car— were driving around Chicago's Humboldt Park neighborhood, a high-crime area that is largely nonwhite, under orders to look for crime. A woman— who officer May, who was driving, testified may have recognized him as a police officer (he was driving a Ford Crown Victoria, the quintessential unmarked police car)— signaled the car to stop and when it did told May that several men were gathered in a vacant lot nearby and one of them, who was wearing a white jacket, was selling " rocks" (crack cocaine). She indicated where the lot was. The officers drove past it and saw a juvenile and three men there. One was the plaintiff, Morrow, age 20, wearing what appeared to be a white jacket. May parked a block or two from the lot, got out, and walked through several yards to a vacant lot just across the street from the lot occupied by the four suspects. From this vantage point (" observation post" in police-speak) he watched the " set" (a drug-selling operation) through a pair of binoculars. The three officers with him remained in the car.
Although it was dark, street lights made the group visible to May and he saw Morrow selling drugs and the juvenile (who turned out to be Lavontay Bell, age 14) collecting the proceeds of the sales from the customers— passersby attracted by the yells of " rocks, rocks" emanating from the two older men in the group. It is common
in drug dealing for one member of the dealer group, in this case Morrow, to remove the drugs (the " product," dealers call it) from a stash (savvy dealers avoid carrying the drugs on their persons; the drugs were in a vial on the ground in the vacant lot) and hand them to the buyer; for another member, Bell in this case, to take the money from the buyer; and for the other members (in this case a third and a fourth) to attract potential customers and also prevent them from stealing the drugs or the money. So Morrow was the actual seller and Bell the " banker" and the others were the " steerers," probably doubling as " muscle," given the youth of Morrow and especially Bell.
After about 20 minutes of watching the " set" and counting three sales, May radioed the other officers and told them to arrest the group, which they promptly did. May picked up the vial. Although the lab report calls its content just " cocaine," it was doubtless crack, given the sellers' yells of " rocks, rocks."
At the police station the four arrested drug dealers were searched, but not strip searched. Bell was discovered to have $100 on him. All four arrested persons were charged, but for a variety of reasons the charges against all of them were quashed.
The charge against Morrow was felony possession of an illegal drug. The decision to charge him came in a bond hearing that lasted no more than a minute or two. After leafing rapidly through the police report of Morrow's arrest, the judge ruled that there was probable cause to detain him for a preliminary hearing to determine whether he could be prosecuted. Unable to make bond, Morrow was jailed to await the hearing, scheduled for November 29, three weeks after the arrests. Officer May was notified to appear at the hearing, but didn't, maybe because of a competing court appearance, though this was not proved. Because May was absent the state asked for and received a continuance. The hearing was rescheduled for December 6. May missed that hearing too, because he had been subpoenaed to appear that day at two trials. The prosecutor's office has only 30 days after an arrest within which to present a felony case to a judge at a preliminary hearing for a ruling on whether there is probable cause to prosecute. 725 ILCS 5/109-3.1(b). As of the sixth of December, 29 days had passed since Morrow's arrest. It was too late to reschedule the hearing for the next day, and so the charge was dropped.
At trial Morrow's lawyer argued that officer May had made up the story about a woman's recognizing him as a cop and directing him to a vacant lot where crack was being sold, and that a 60-year-old white man (actually May was 56) would not have dared to conduct surveillance alone in a black and Hispanic neighborhood, at night, with the temperature in the 30s. In the words of the plaintiff's lawyer, " This story [that Morrow was arrested as part of a drug bust] portrayed at best the reckless actions of an older patrol officer aspiring late in his career to become a narcotics officer." Not only did the lawyer get May's age wrong; there was no evidence that May wanted to join the drug squad. The suggestion that a person in his fifties is too decrepit to conduct surveillance on a cold night by himself is silly, especially since the other three officers were only a block away from where May was peering at the (no longer vacant) lot through his binoculars and he was in radio contact with them.
Before trial Morrow's lawyer had moved the judge to bar any " questions, argument, and innuendo regarding gang affiliation and tattoos," and the motion had been granted. Yet at the trial Morrow's lawyer
— not the government's lawyer— asked May: " Drugs are sold by gang members predominantly?" May replied: " Not all the time; no, ma'am." The lawyer's question was harmful to her client, and the officer's answer helpful to him. A further perverse inquiry along the same lines by the lawyer's co-counsel of officer Town, asking " Did you ever come to learn that any particular gang controlled drug activity in that area?" (the area in which Morrow was arrested), elicited the reply: " There are numerous amounts of gangs in the Eleventh District." The lawyer pressed Town, asking whether the Four Corner Hustlers was one of them and whether " it is a very dangerous gang?" Town replied that the Four Corner Hustlers was indeed one of the gangs in the area but that " they are all [that is, all the gangs in the district] dangerous, sir."
The questioning was intended to bolster Morrow's weak claim that an old white guy wouldn't have dared to conduct surveillance all by himself at night in a neighborhood where gangs roam. But the questions and the officers' answers actually hurt Morrow's case by bolstering the probability that there was indeed drug dealing when Morrow was arrested, rather than the drug dealing having been a fabrication by the officers, as he claimed.
Morrow testified. He had to, to have any chance of prevailing, but by testifying he opened himself to impeachment by his two previous felony convictions, one for possession of an illegal drug with intent to deliver it and the other for the unauthorized use of a weapon.
He testified that on the evening of the arrest he had decided to buy a " loose square," which means a single cigarette rather than a pack of cigarettes, from a man who lived in the house that, as it happens, abuts the vacant lot where Morrow was arrested. His testimony about the cigarette purchase was a tissue of contradictions and improbabilities. He testified that he had bought loose squares from the man who lived in the house adjoining the vacant lot several times, having stated in his deposition that he had done so only once. He testified that the seller was sitting on his porch, and that though there was no porch light Morrow could see him when he was four or five houses away because the man was light-skinned. No occupant of the house, either at the time of the arrest or the time of the trial, was identified by the plaintiff, let alone called as a witness. Morrow testified that 30 to 45 minutes had passed between when he left his home and when he was arrested, but on cross-examination he changed the estimate to 5 to 6 minutes. We could multiply these examples.
He testified that he was wearing a dark sweater, not a white one, on the night in question. His mug shot shows him wearing two white shirts, but he testified that he had taken off his sweater for the photo because the photographer told him to. He testified that he was strip searched at the police station by officers Carroll and Pickett and that the search may have taken as long as 13 minutes. At his deposition he had said that one of the officers was blond; neither is. Having told his ...