United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT W. GETTLEMAN, District Judge.
Plaintiff Rodney Mosley sued four Chicago police officers, Tyrone Pendarvis, Nyls Meredith, Roderick Hummons, and Martin Murphy; unknown Chicago police officers; and the City of Chicago. Count I asserts a claim for false arrest in violation of the Fourth Amendment. Count II asserts a claim for failure to advise plaintiff of his rights required by Miranda v. Arizona, 384 U.S. 436 (1966), in violation of the Fifth Amendment. Count III asserts a claim for failure to intervene. Count IV asserts a claim for malicious prosecution. Count V asserts a claim for intentional infliction of emotional distress. Counts VI and VII assert that the City of Chicago is responsible for these violations under respondeat superior and indemnification, respectively. Defendants have moved pursuant to Fed.R.Civ.P. 56 for summary judgment on all counts. For the reasons stated below, defendants' motion is granted in part and denied in part.
On January 22, 2012, the four defendant police officers ("defendants") executed a search warrant at 901 E.104th Street, Apartment C126, Chicago, Illinois. Adrienne Washington leased the apartment and resided there with her son, Robert Owens, a narcotics dealer suspected in a shooting. The search warrant was targeted at Owens and allowed the seizure of a handgun, ammunition, and proof of residence.
When defendants arrived to execute the warrant, plaintiff was the only person in the apartment. Defendants immediately handcuffed plaintiff, who identified himself. Defendant Pendarvis claimed in his deposition that plaintiff said he lived at the apartment, and that when Washington entered the apartment she identified plaintiff as her husband. Plaintiff denies that he told defendants that he lived there, and Washington claims to have told defendants that plaintiff did not live there. Defendants asked plaintiff and Washington about Owens' whereabouts, but both said they did not know where he was. Defendants continued to search the apartment and found ammunition in a drawer. They asked plaintiff who owned the ammunition, and he stated it was not his. Defendants claim that plaintiff made incupatory statements, but he claims that defendants fabricated the statements.
During the search, defendants also found three pieces of mail sent to plaintiff at the apartment. One had been sent on May 8, 2009, another on February 25, 2011, and the final on June 6, 2011. Defendants also recovered an identification card from plaintiff, which listed the apartment as his address. However, Pendarvis and Murphy neither saw the identification card nor were told about the listed address during the search.
Ultimately, Pendarvis arrested plaintiff and he was charged with unlawful possession of firearm ammunition by a convicted felon. He was acquitted after a bench trial.
Defendants have moved for summary judgment pursuant to Fed.R.Civ.P. 56. Summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The movant bears the burden of establishing both elements. Becker v. Tenenbaum-Hill Associates, Inc., 914 F.2d 107, 110 (7th Cir. 1990). If the movant satisfies the burden, then the non-movant must set forth specific facts showing there is a genuine issue for trial. Nitz v. Craig, No. 08 C 334, 2013 WL 593851, at *2 (N.D. Ill. Feb. 12, 2013). The court "must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in favor of the non-moving party." Orton-Bell v. Indiana, 759 F.3d 768, 773 (7th Cir. 2014). At the summary judgment stage, a "court may not assess the credibility of witnesses, choose between competing inferences or balance the relative weight of conflicting evidence...." Id.
Plaintiff does not contest summary judgment on all counts for defendants Hummons, Meredith, and unknown officers. Plaintiff also does not contest summary judgment for all defendants on his intentional infliction of emotion distress claim (Count V). Because defendants' motion is uncontested on these issues and claims, it is granted in part.
Defendants first argue that they are entitled to summary judgment on Counts I, III, and IV because Pendarvis and Murphy had probable cause to arrest plaintiff for possession of ammunition by a felon in violation of 720 Ill. Comp. Stat. 5/24-1.1(a) (2012). The crux of defendants' argument is that plaintiff had control of the apartment in which the ammunition was located and, thus, constructively possessed the ammunition. "Probable cause to arrest exists if, at the time of the arrest, the facts and circumstances within the officer's knowledge... are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Brown v. City of Fort Wayne, 752 F.Supp.2d 925, 945 (N.D. Ind. 2010) (internal quotation marks omitted). This test "for probable cause is an objective one." Penn v. Chicago State Univ., 162 F.Supp.2d 968, 976 (N.D. Ill. 2001) aff'd sub nom. Penn v. Harris, 296 F.3d 573 (7th Cir. 2002). "[P]robable cause is normally a jury question...." Smith v. Lang, 114 F.3d 1192 (7th Cir. 1997). A court may answer this question only "when there is no room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them." Duncan v. Fapso, No. CIV.A. 05 C 1193, 2006 WL 328262, at *3 (N.D. Ill. Feb. 9, 2006) aff'd, 216 Fed.Appx. 588 (7th Cir. 2007) (internal quotation marks omitted). Where there is room for difference of opinion as to the facts or reasonable inferences, the probable cause question must be answered by the jury. Hogue v. City of Fort Wayne, 599 F.Supp.2d 1009, 1024 (N.D. Ind. 2009) (internal quotation marks omitted).
Defendants claim that they had probable cause to believe plaintiff controlled the apartment because of his identification card, the three pieces of mail, and his presence in the apartment. Even though plaintiff's identification card listed the apartment's address, neither Pendarvis nor Murphy was aware of this fact. Pendarvis testified that no one even asked plaintiff for his identification card. Murphy testified that he did not recall if plaintiff gave his identification card to the police. Thus, the record establishes that neither Pendarvis nor Murphy ever saw plaintiff's identification card before arresting him. Further, there is no claim that another officer told them about the identification card before the arrest. Consequently, the identification card is not relevant to the probable cause inquiry because "the fact that the officer later discovers additional evidence unknown to her at the time of the arrest is irrelevant to whether probable cause existed at the crucial time." Qian v. Kautz, 168 F.3d 949, 953-54 (7th Cir. 1999).
The mail is clearly relevant to the issue of probable cause. The police found three pieces of mail, all sent to the defendant at the apartment. This mail may indicate that plaintiff lived at the apartment at some point in the past. The age of the mail, however, is relevant to determining whether plaintiff actually controlled the premises at the time in question. People v. Ray, 597 N.E.2d 756, 759 (Ill.App.Ct. 1992). Here, the mail was postmarked May 8, 2009 (roughly thirty-two months before the search); February 25, 2011 (almost eleven months before the search); and June 6, 2011 (more than seven months before the search). Further, whether the mail is "merely personal" and "can be sent anywhere, " such as a credit card statement, or is related to one's control over a premise, such as a cable utility bill, is relevant. People v. Valentine, 2011 IL App (1st) 102095-U, ¶¶ 51-52 (Ill.App.Ct. Sept. 30, 2011). Here, one piece of mail is addressed from "nelnet, " which the envelope identifies as being in the business of "education planning and financing." A second piece of mail was sent by the Illinois Child Support services. Both of these are closer to personal mail because they have nothing to do with the recipient's residence. The final piece of mail came from "ECMC, " but the envelope does not make clear what that is. Three pieces of old, largely personal mail cannot reasonably be thought to prove that defendant lived at the premises in questions.
The only other basis for probable cause that defendants identify is plaintiff's presence in the apartment. Mere presence in an apartment, however, does not demonstrate control of the premises or the items within it. See United States v. Morris, 576 F.3d 661, 667-68 (7th Cir. 2009) (explaining that proximity does not establish control). Indeed, ...