Dakhlallah v. Zima
Dakhlallah v. Zima
Opinion of the Court
MEMORANDUM OPINION AND ORDER
Presently before us is a motion for summary judgment filed by Defendants Ryan Zima and the Village of Justice as to all claims brought by Plaintiff Yaser Dakhlallah. Defendants contend that Plaintiffs claims for false arrest, unreasonable search, trespass, and malicious prosecution should be dismissed, as well as Plaintiffs request for punitive damages. For the reasons discussed below, we grant Defendants’ motion for summary judgment in its entirety.
BACKGROUND
In May 2011, Lisa Aydin obtained from the Circuit Court of Cook County an order of protection that prohibited Plaintiff from contacting her and from taking, transferring, encumbering, concealing, damaging or otherwise disposing of her property. (RSOF ¶ 2.) Aydin then vacated that order of protection on June 14, 2011, but filed for a second order of protection against Plaintiff on February 21, 2012. (Id. ¶¶ 8-10.) In June 2012, Plaintiff and Aydin spoke over the phone. (RSOF
Although the parties dispute the sequence of events,
Defendant Corporal Ryan Zima and officer Joseph Bonkowski were dispatched to Plaintiffs apartment in response to a “domestic disturbance” call. (Id. ¶¶ 34-35.) Upon arrival, both officers approached Plaintiff, who was standing in a driveway adjacent to the apartment building, and asked for his identification, which Plaintiff provided. (Id. ¶¶ 37-38, 41.) Plaintiff told Zima that he had called the police because he was unsure if Aydin was going to come back to the apartment, and if she did, she had a history of attacking him, which he did not want to happen. (Id. ¶ 40.)
At some point, Aydin drove back to Plaintiffs apartment, and upon seeing that the police had arrived, got out of the car. (Id. ¶ 27.) Zima alleges, and Plaintiff denies, that Aydin began yelling at Plaintiff and accusing him of stealing her phone. (SOF, RSOF ¶¶ 42, 43.) Zima asked Ay-din to produce identification and then ran her identification over to dispatch. (RSOF ¶ 44.) Aydin explained to Zima that when she started to leave Plaintiffs apartment, she realized that her phone was missing. (Id. ¶ 45.) Zima also alleges, and Plaintiff denies, that Plaintiff stated, “Look, I don’t have her cell phone, check my car, check my house. You are not going to find anything. I don’t have anything.” (SOF, RSOF ¶ 47.)
Dispatch informed Zima that the Law Enforcement Agencies Data System (“LEADS”) showed an active order of protection, naming Plaintiff as respondent and Aydin as petitioner, that barred Plaintiff from having contact with Aydin and from removing or concealing Aydin’s property. (RSOF ¶¶ 48-49.) Zima instructed Plain
After Zima placed Plaintiff in the squad car, he reviewed the information provided by LEADS. (RSOF ¶ 53.) The parties agree that the LEADS system showed that there was an active order of protection naming Plaintiff as respondent and Aydin as petitioner. (SOF ¶ 48.) Although Plaintiff denies the following, Zima states that he then asked Aydin what she wanted, to which Aydin responded that she wanted her phone returned. (SOF, RSOF ¶ 55.) Zima also alleges, and Plaintiff denies, that Zima then asked Plaintiff if he had the phone, to which Plaintiff responded that he did not have it and that Zima could search his car and his house. (Id. ¶ 56.)
Zima walked up to Plaintiffs apartment building and pushed the buzzer for his unit, 1-E. (RSOF ¶ 57.) Plaintiffs brother, Abdul-Aziz, buzzed in Zima, who then proceeded to the unit, knocked on the door, and met Abdul-Aziz, who said “hi.” (Id. ¶¶ 58, 73.) The parties dispute whether Abdul-Aziz expressly told Zima that he could enter the apartment. Plaintiff states that Zima continued into the apartment without asking for permission or consent to enter. (RSOF ¶ 59, SAF ¶ 10.) Zima, on the other hand, alleges that Abdul-Aziz said he did not think the phone was in the house but that Zima could enter the apartment and help him search for it. (SOF ¶ 59.) According to Abdul-Aziz, before Zima walked into the apartment, he told Abdul-Aziz that he was looking for Aydin’s phone. (RSOF ¶ 76.) Abdul-Aziz also testified that Zima did not “deceive” or “trick” him in order to gain access to the apartment. (RSOF ¶ 74.) Abdul-Aziz did not hear his
Although the amount of time that Zima was initially in the apartment is in dispute, the parties agree that Zima at some point left to ask Aydin for her cell phone number so that he could call it from his phone, which Aydin agreed to do. (Id. ¶¶ 61-62.) When Zima returned to the apartment building, Abdul-Aziz again buzzed Zima in and then also opened the apartment door for him. (Id. ¶ 79.) Zima dialed Aydin’s number and heard a ringtone coming from the bathroom sink. (Id. ¶¶ 63-64.) After finding her phone, he returned it to her outside. (Id. ¶ 65.) Plaintiff asserts, and Zima denies, that Plaintiff “informed Zima multiple times prior to entering his apartment, the first and second time, that he
After arriving at the Village of Justice Police Department, Zima spoke to Plaintiffs immigration attorney, Cherissa Loire, over the phone. (RSAF ¶ 12.) Loire faxed the order that vacated or terminated the May 23, 2011 order of protection and spoke with someone at the police department after the document was received. (Id. ¶ 14.) Loire informed whomever she was speaking with that he could call the Cook County Clerk to verify that the order was vacated. (Id. ¶ 17.) The parties agree that Zima was shown the fax, although they dispute whether that occurred before or after Plaintiff was processed. (SOF, RSOF ¶ 66.) They also dispute whether the faxed copy had an official seal. (Id. ¶¶ 66, 67.)
Plaintiff was charged with violating the protective order. (RSOF ¶ 70.) When Plaintiff was released from jail five days later, on June 13, 2012, he was required to wear a GPS monitoring device until June 22, 2012, when his case was called for hearing and the charges were dismissed against him. (RSAF ¶¶ 23, 24.) At the hearing, Plaintiffs attorney, Peter Papoutsis, told the court that “it looks like this is a violation of an order of protection” and that “there has been an ongoing issue with this order of protection inasmuch as my client has been arrested for violating it several times.” (Id. ¶ 71.) Papoutsis told the court that the order had been terminated on June 14, 2011, but “it has never come out of the computer for LEADS so he keeps getting picked up on this.” (Id. ¶ 72.) According to Officer Bonkowski, there have been times when the LEADS system has been incorrect and Village of Justice police officers, upon seeing the person’s “proper paperwork on them, the official stamp from a judge” have either released the person or investigated it further. (SAF ¶ 20 (citing Bonkowski Dep., SAF, Ex. 6, 41:6-23 (referring to situations involving a suspended license or warrant)).)
Plaintiff filed a complaint on October 12, 2012, and an amended complaint on March 5, 2013, against Zima for (1) unreasonable search and (2) false arrest, and against both Zima and the Village of Justice for (3) malicious prosecution and (4) trespass. (Compl., Dkt. No. 1; Amended Compl., Dkt. No. 15.) The Village of Justice, Plaintiff avers, is liable for Zima’s acts under the doctrine of respondeat superior. (Amended Compl., Dkt. No. 15, ¶¶ 35, 39.) On October 31, 2013, Zima and the Village of Justice filed a motion for summary judgment. (Mot., Dkt. No. 22.)
DISCUSSION
I. Summary Judgment Standard of Review
Summary judgment will be granted in favor of the moving party if “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears the burden of establishing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 . U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). When ruling on a motion for summary judgment, we must view evidence in the light most favorable
II. Federal Claims
A. False Arrest
1. Probable Cause
a. Standard of review
To prevail on a claim of false arrest under the Fourth Amendment and Section 1983, Plaintiff must show that he was arrested without probable cause. “Probable cause is an absolute bar to a claim of false arrest asserted under the Fourth Amendment and Section 1983.” Zitzka v. Village of Westmont, 743 F.Supp.2d 887, 908 (N.D.Ill. 2010) (citing Stokes v. Bd. of Educ. of the City of Chi, 599 F.3d 617, 622 (7th Cir. 2010)); Abbott v. Sangamon County, 705 F.3d 706, 713-14 (7th Cir. 2013); Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009). Probable cause must be assessed objectively. “[A] court looks at the conclusions that the arresting officer reasonably might have drawn from the information known to him rather than his subjective reasons for making the arrest.” Holmes v. Hoffman Estates, 511 F.3d 673, 679 (7th Cir. 2007) (citing Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 593-94, 160 L.Ed.2d 537 (2004); Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996)). To make that objective assessment, we “must consider the facts as they reasonably appeared to the arresting officer, seeing what he saw, hearing what he heard, and so forth.” Holmes, 511 F.3d at 679 (citing Wagner v. Washington County, 493 F.3d 833, 836 (7th Cir. 2007)); Williams v. Rodriguez, 509 F.3d 392, 398-99 (7th Cir. 2007). While probable cause to arrest depends on the elements of the applicable state criminal law, Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 761 (7th Cir. 2006) (citing Williams v. Jaglowski, 269 F.3d 778, 782 (7th Cir. 2001)), it “does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands,” Gerstein v. Pugh, 420 U.S. 103, 121, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975); Mucha v. Village of Oak Brook, 650 F.3d 1053, 1056-57 (7th Cir. 2011); U.S. v. Funches, 327 F.3d 582, 587 (7th Cir. 2003).
Also an important factor is the timing of a probable cause determination, the existence of which turns on the information known to the officer at the moment the arrest is made, not on subsequently received information. Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 2000). Once probable cause has been established, an officer has “no constitutional obligation to conduct further investigation in the hopes of uncovering potentially exculpatory evidence.” Id. (quoting Eversole v. Steele, 59 F.3d 710, 718 (7th Cir. 1995)). Keeping these standards in mind, we next assess whether no reasonable trier of fact could find that Zima did not have probable cause to arrest Plaintiff.
b. The parties’ arguments as to probable cause
Zima argues that he had probable cause to arrest Plaintiff based on the information he had at the scene, including LEADS, which showed that the May 23, 2011 order of protection against Plaintiff was still active. (Mem. at 7-8.) Plaintiff counters that the “only” information Zima relied upon to arrest Plaintiff was the information in LEADS, which “is known to be
Furthermore, Plaintiff avers, even if the order of'protection was active, Zima still lacked probable cause to arrest him because no reasonable person would believe, based on the facts with which Zima was presented, that the elements required to prove a violation were present. (Id. at 7.) To violate an order of protection, both an actus reus, “an act prohibited by a valid order of protection,” and mens rea, “actual knowledge of the contents of the order,” are required. People v. Hinton, 402 Ill.App.3d 181, 183-84, 341 Ill.Dec. 872, 931 N.E.2d 769, 771 (2010) (quoting 720 ILCS 5/12-30(a)(2)); People v. Davit, 366 Ill.App.3d 522, 525, 303 Ill.Dec. 737, 851 N.E.2d 924, 927 (2006) (“The offense of violating an order of protection is not a strict liability offense, and the State is required to prove both actus reus, a guilty act, and mens rea, a guilty mind.”). Accordingly, given how Plaintiff had committed neither element of the offense, and “[biased upon all the facts known to Zima at the time, a reasonable and prudent person would not believe there was probable cause to arrest Plaintiff on June 8, 2012. Alternatively, there is at the very least a genuine issue of material fact.” (Resp. at 8.) According to Plaintiff, he notified Zima that it was Aydin who contacted Plaintiff over the phone and drove voluntarily to his apartment and that Plaintiff was the one who called the police to his apartment. (Id. at 7.) It was unreasonable, Plaintiff argues, for Zima to ignore the information that Plaintiff provided on the scene and rely instead on “a computer system, which is anything but infallible, [as] a more appropriate basis for his probable cause determination.” (Id.)
c. Analysis
When assessing all of the facts known to Zima, we keep in mind when determining whether a reasonable officer in his position would have probable cause that summary judgment is improper and should not be granted if there “is room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them.” Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1013-14 (7th Cir. 2006) (quoting Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993)). It is clear for the reasons discussed below, however, that there is no room for a difference of opinion as to the facts or the reasonable inferences, which demonstrate that Zima had probable cause to arrest Plaintiff based on the information he had on the scene.
i. Totality of the circumstances
“A person commits the offense of violating an order of protection when he commits an act prohibited by a valid order of protection and has been served notice of the contents of the order ‘or otherwise has acquired actual knowledge of the contents of the order.’ ” Hinton, 402 Ill.App.3d at 183-84, 341 Ill.Dec. 872, 931 N.E.2d 769 (quoting 720 ILCS 5/12 — 30(a)(2)); Davit, 366 Ill.App.3d at 525, 303 Ill.Dec. 737, 851 N.E.2d 924. On the scene, Zima was faced with facts indicating that Plaintiff had both the actus reus and mens rea necessary to violate the protective order.
First, a reasonable arresting officer would have relied on LEADS, an official government database, in making a
Plaintiffs argument that he “did not have the requisite intent” to violate the order of protection is not relevant to the issue of whether an officer in Zima’s position would have had probable cause to believe that Plaintiff had violated the order. (Resp. at 8.)
The totality of the circumstances indicate that the elements required to prove a violation of a protective order, as Zima reasonably believed them to be, were present when he made a probable cause
Although the cases cited by Zima, (see Mem. at 7), are distinguishable from the facts of this case in that they concern instances of misidentification,
Here, Zima was not required to know with certainty that information in the LEADS database was accurate. His belief need only have been reasonable. We find that it was reasonable for Zima to rely on official records despite the protestations of Plaintiff, the arrestee. Again, probable cause does not require the existence of criminal activity to be more likely true than not. Gerstein, 420 U.S. at 121, 95 S.Ct. at 861; Mucha, 650 F.3d at 1056-57; Funches, 327 F.3d at 587. The “peril of liability” under the Fourth Amendment and Section 1983 “should not be placed upon arresting officers every time they are faced with a practical dilemma of arresting or releasing an individual who, despite some discrepancies” as suggested by that individual, is listed in an official database as being subject to an order of protection. See White, 56 F.3d at 820; see also, in the qualified immunity context, Beier v. City of Lewiston, 354 F.3d 1058, 1070-71 (9th Cir. 2004) (when there is a conflict between legal information obtainable from official channels and legal information from lay citizens, police officers may reasonably rely upon officially-obtained information”); Lauer v. Dahlberg, 717 F.Supp. 612, 614 (N.D.Ill. 1989) (concluding that an officer was entitled to rely on information received from LEADS despite having been presented with an uncertified copy of a warrant recall order), aff'd, 907 F.2d 152 (7th Cir. 1990)).
ii Duty to Investigate
Plaintiff’s argument that we should deny Zima’s motion because he had a duty to investigate is misplaced. Plaintiff cites Zitzka for the proposition that, “[generally, an officer has no duty to investigate once probable cause is established. However, ‘if a victim or witness’s information would lead a reasonable officer to be suspicious, the officer has a duty to pursue reasonable avenues of investigation and may not close his eyes to facts that would clarify the situation.’ ” (Resp. at 9 (quoting Zitzka, 743 F.Supp.2d at 908 (internal citations omitted)).) To fully understand an officer’s duty to investigate based on this language, however, we must address its surrounding context.
The first contextual point in Zitzka, which Plaintiff fails to mention, is that “[a]n officer may base a determination of probable cause on information from a single putative victim or eyewitness if the officer reasonably believes that the victim is telling the truth.” Zitzka, 743 F.Supp.2d at 908 (citing McBride v. Grice, 576 F.3d 703, 707 (7th Cir. 2009); Woods v. City of Chi, 234 F.3d 979, 996 (7th Cir. 2000)). Here, the information Zima received was not offered from just any witness, but rather the arrestee. This fact leads us to the second contextual point, which concerns credibility. “In crediting the complaint of a reasonably believable witness or putative victim,” the court in Zitzka continued,, “the police are under no constitutional obligation to exclude all suggestions that the witness or victim is not telling the truth.” - Zitzka, 743 F.Supp.2d at 908 (citing Beauchamp v. City of Noblesville, Ind., 320 F.3d 733, 743 (7th Cir. 2003)). As Zitzka makes clear, Zima was “under no constitutional obligation to exclude all suggestions that [Plaintiff was] not telling the truth.” Id. It would be reasonable — given the surrounding circumstances — for an officer in Zima’s position to doubt the information provided by Plaintiff, given that he was subject to the order of protection listed in LEADS. Even accepting Plaintiffs allegation that Aydin also informed Zima that the order had been vacated, we find it reasonable for an officer in Zima’s position to question the trustworthiness of her statements as well, especially in light of the fact that Plaintiff was present on the scene.
Next, we address the third point in Zitzka that arises with respect to an officer’s duty to investigate: “Whether or not an officer must conduct some investigation before making an arrest depends on factors including the information available to the officer, the gravity of the alleged crime, the danger of its imminent repetition, and the amount of time that has passed since the alleged crime.” Zitzka, 743 F.Supp.2d at 908 (citing Stokes, 599 F.3d at 625). Here, the information provided to Zima on the scene indicated, as we have discussed, that there was probable cause to arrest Plaintiff for violating an
Notably, the court in Zitzka found that an officer in that case had probable cause to make a battery arrest. Zitzka, 743 F.Supp.2d at 911-12. “Although the officer ‘may not ignore conclusively established evidence of the existence of an affirmative defense, the Fourth Amendment imposes no duty to investigate whether a defense is valid.’” Id. at 911. The evidence in Zitzka, which indicated that the plaintiff was attempting to stop a trespass to his home when the alleged battery occurred, did not “conclusively establish! ]” that Plaintiff had an affirmative defense to battery. Id. (quoting McBride, 576 F.3d at 707). In the case before us, it is “far from ‘conclusively established’ ” that the order of protection against Plaintiff had been vacated at the time of his arrest. See Id. After learning from dispatch that there was an active order of protection naming Plaintiff as a respondent and Ay-din as the petitioner, Zima checked his computer and reviewed the information provided by LEADS, which confirmed the information provided by dispatch. Although Plaintiff voiced an objection to the accuracy of this record and allegedly offered to show Zima a copy of the order vacating the order of protection, doing so would not have “conclusively established” that the LEADS information was incorrect and that the order had been vacated, especially in light of the fact that the order of protection prohibited Plaintiff from having any contact with Aydin and from taking or concealing her property. As the Seventh Circuit stated,
First, criminal suspects frequently protest their innocence, and a suspect’s denial of guilt generally is not enough to trigger a duty to investigate in the face of a reasonably believable witness and readily observable events. Second, once an officer learns sufficient trustworthy information establishing probable cause, he is entitled to rely on what he knows in pursuing charges or an arrest, and is under no further duty to investigate.
Beauchamp, 320 F.3d at 744 (internal citations omitted). Plaintiffs claims of innocence in this case did not trigger a duty to investigate, especially in light of the information provided by LEADS, an official government database, and the surrounding circumstances of Plaintiffs arrest.
In sum, at the time of Plaintiffs arrest, a reasonable person in the position of an
B. Unreasonable Search of Plaintiff’s residence
A warrantless search is unreasonable under the Fourth Amendment unless: (1) exigent circumstances and probable cause exist; or (2) consent is given. Reardon v. Wroan, 811 F.2d 1025, 1027-28 (7th Cir. 1987). “The probable cause and warrant requirements of the Fourth Amendment are not applicable where a party consents to a' search, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), where a third party with common control over the searched premises consents, Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), or where an individual with apparent authority to consent does so, Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).” United States v. Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000).
Although the defendant must initially produce evidence of consent to show that the search was reasonable, if he does so, then the burden shifts to the plaintiff to prove that his consent was the product of duress or coercion and that the search was unreasonable. Valance v. Wisel, 110 F.3d 1269, 1279 (7th Cir. 1997). Because “the existence and voluntariness of a consent is a question of fact[,] ... only where the district court’s finding of a voluntary consent is clearly erroneous may a reviewing court set it aside.” United States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976) (internal citations omitted).
In dispute is whether Plaintiff gave Zima consent to enter his apartment. According to Zima, Plaintiff twice stated, both before and after his arrest, that he did not have Aydin’s phone and that Zima could search his house and his car. Plaintiff counters that he informed Zima “multiple times” that he had no permission to enter his apartment. The parties also dispute whether his brother, Abdul-Aziz, expressly gave Zima permission to enter.
1. Plaintiffs brother gave Zima implied, voluntary consent
Consent may be given either verbally or nonverbally. Griffin, 530 F.2d at 742. While consent may take “the form of words, gesture, or conduct,” it “must be voluntary, i.e. freely and intelligently given.” Id. (citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968)). Whether consent to search is “voluntary,” or the product of duress or coercion, is a question of fact to be determined from the totality of all the circumstances.
While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent ... In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents ... [I]t is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.
Bustamonte, 412 U.S. at 227, 93 S.Ct. at 2048. Thus, while consents to search must be voluntary (free of coercion), they need not necessarily be knowing (with awareness of the constitutional right being surrendered). See also Wayne R. LaFave, 4 Search & Seizure § 8.2, Search and Seizure: A Treatise on the Fourth Amendment (5th ed. 2012).
The voluntariness of the consent is a factual assessment that depends upon the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 34, 117 S.Ct. 417, 419, 136 L.Ed.2d 347 (1996); Griffin, 530 F.2d at 742; Bustamonte, 412 U.S. at 227, 93 S.Ct. 2041. Relevant factors include: (1) the person’s age, intelligence, education, (2) whether he was advised of his constitutional rights, (3) how long he was detained before he gave his consent, (4) whether his consent was immediate, or prompted by repeated requests by the authorities, (5) whether any physical coercion was used, and (6) whether the individual was in police custody when he gave the consent. United States v. Raibley, 243 F.3d 1069, 1075-76 (7th Cir. 2001) (citing United States v. Strache, 202 F.3d 980, 985 (7th Cir. 2000); Valance v. Wisel, 110 F.3d 1269, 1278 (7th Cir. 1997)). “Neither the presence nor the absence of any single criteria can be controlling in the determination.” Griffin, 530 F.2d at 742 (citing Bustamonte, 412 U.S. at 226, 93 S.Ct. at 2047).
Nowhere do the parties address whether Abdul-Aziz had actual or apparent authority to give consent. Rather, their argument rests on whether AbdulAziz gave consent. For the record, however, we take into account the facts showing that on June 8, 2012, Abdul-Aziz was living as a “permanent resident” with Plaintiff at 8142 Thomas Street, Apartment 1-
Although the parties dispute whether Zima expressly asked for permission to enter the apartment, Abdul-Aziz testified that he did not object to Zima’s entry. (RSOF ¶¶ 70-71, 77; Aldakhlla Dep., Reply, Ex. B 67:17-19.) While the absence of objection is relevant to whether consent was freely and voluntarily given, something besides silence or lack of objection must be present. Padilla v. City of Chi, 932 F.Supp.2d 907, 925 (N.D.Ill. 2013) (“Instead something more — even if it is nonverbal — must be present to show the occupant has consented.”); Hadley v. Williams, 368 F.3d 747, 750 (7th Cir. 2004) (“The fact that a person answers a knock at the door doesn’t mean that he agrees to let the person who knocked enter.”). For instance, the court in Padilla cites United States v. Villegas, 388 F.3d 317, 324-25 (7th Cir. 2004), United States v. Cotnam, 88 F.3d 487, 495 (7th Cir. 1996), and Griffin, 530 F.2d at 743, stating “[i]n each of those cases an occupant said or did something to indicate to the police that they could enter, if nothing more than opening the door in response to the police’s announcement of office and orally agreeing to speak with the police.” Padilla, 932 F.Supp.2d at 925. As in those cases, here there are more facts than just Abdul-Aziz’s alleged silence that indicate he consented to Zima’s entry. He buzzed Zima into the building twice, and also opened the door to the apartment unit twice, said “Hi” upon the first instance, and allowed him to enter both times. Furthermore, he stood by Zima’s side without objection as he searched.
Given Zima’s status as a police officer, we take into account that “[sjubtle coercion, in the form of an assertion of authority or color of office by the law enforcement officers may make what appears to be a voluntary act an involuntary one.” Griffin, 530 F.2d at 742. In this case, however, the facts do not indicate that subtle coercion was present. AbdulAziz admitted that he did not feel that Zima forced him to consent to the search; that he did not feel threatened or afraid during the search; and that as Zima searched, he stood next to him. He also testified that Zima did not threaten to arrest him or Plaintiff if he did not allow him to search the apartment. Furthermore, he acknowledged that Zima did not use deception or trickery to gain entry to the house. According to Abdul-Aziz, Zima told him that he was looking for Aydin’s phone.
As discussed, although a police officer’s failure to inform someone that he can refuse consent to search is a factor to consider in determining if the consent to search was voluntary, the absence of such information does not automatically render the accused’s consent involuntary. Bustamonte, 412 U.S. at 227, 93 S.Ct. at 2048 (consent need only be voluntary, not knowing). Therefore, it is not determinative that Abdul-Aziz did not believe he could object because Zima was a police officer. The facts clearly show that, based on the totality of the circumstances, Zima had
2. Plaintiff did not override his brother’s consent
Despite our finding that AbdulAziz gave implied consent, we must also take into account Plaintiffs allegation that Plaintiff himself informed Zima “multiple times” that he did not have permission or consent to enter his apartment.
Two Supreme Court cases shed light on the instant facts. In Rodriguez and Mat-lock, the defendants, although not immediately present with the opportunity to object, were not far away. Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). In Matlock, the defendant was in a squad car not far away when his co-occupant at the door of their residence had consented to the search. Matlock, 415 U.S. at 167-171, 94 S.Ct. at 991-93. In Rodriguez, the defendant was “asleep in the apartment” when the police entered with only the consent of an apparent co-tenant. Rodriguez, 497 U.S. at 179, 110 S.Ct. at 2796-97. When comparing these cases to the facts before it in Georgia, the Supreme Court acknowledged the following:
we have to admit that we are drawing a fine line; if a potential defendant with selfinterest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.
Georgia, 547 U.S. at 121, 126 S.Ct. at 1527.
Although we agree that the line drawn by the Supreme Court is a fine one, the facts here clearly align with Matlock and Rodriguez rather than Georgia. Like the defendant in Matlock, Plaintiff was in the squad car when his brother, his co-occupant, consented to Zima searching their apartment. And, needless to say, given that he was sitting in the squad car outside the apartment building, Plaintiff was further away than the defendant in Rodriguez. Therefore, for purposes of the “threshold colloquy,” Plaintiff was not “physically present” and thus unable to override his brother’s consent. The facts of this case differ from Matlock and Rodriguez in that the defendants in those cases did not expressly indicated to the police that they did not have consent to search the residence. Here, Plaintiff alleges that
So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance specifically to avoid a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when no fellow occupant is on hand, the other according dispositive weight to the fellow occupant’s expressed contrary indication.
Id. (emphasis added). In other words, even if a defendant expressly indicates to an officer that he does not have consent to search, his co-occupant still retains the authority to consent so long as the defendant is not standing at the door and so long as the police have not removed him. Here, Zima did not forcibly remove Plaintiff from the entrance. In fact, he had arrested and placed Plaintiff in the squad car before he made the decision to search his apartment for Aydin’s phone.
We therefore find that Zima had consent to search Plaintiffs apartment in this case. Despite Plaintiffs allegation that he expressly told Zima that he did not have permission or consent to search his apartment, Zima was entitled to rely on the consent given by Plaintiffs brother and cotenant, Abdul-Aziz, who had actual and apparent authority. See Melgar, 227 F.3d at 1041. Because Zima had consent to search Plaintiffs apartment, we dismiss Plaintiffs unreasonable search claim.
III. State Law Claims
Having granted Zima’s motion for summary judgment on the false arrest and Fourth Amendment claims, we must assess whether to retain pendent jurisdiction over the remaining state law claims. A district court may retain supplemental jurisdiction over state law claims even after it has dismissed all claims over which it has original jurisdiction. 28 U.S.C.' § 1367(c)(3). The Supreme Court has recognized that “pendent jurisdiction is a doctrine of discretion, not of plaintiffs right.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); see also Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 727-28 (7th Cir. 1998); Kevin’s Towing, Inc. v. Thomas, 217 F.Supp.2d 903, 910 (N.D.Ill. 2002). The Seventh Circuit has repeatedly characterized the district court’s discretion to relinquish pendent jurisdiction as “almost unreviewable,” especially when all federal claims have been dropped from the case before trial and only state law claims remain. Kennedy, 140 F.3d at 728 (citing Huffman v. Hains, 865 F.2d 920, 923 (7th Cir. 1989)); see Pleva v. Norquist, 195 F.3d 905, 918 (7th Cir. 1999); Kevin’s Towing, Inc., 217 F.Supp.2d at 910.
The Seventh Circuit has articulated three exceptions to the general presumption that “the pendent claims should be left to the state courts.”
A. Trespass
Plaintiff alleges that Zima committed the tort of trespass when he entered Plaintiffs residence without permission or authority. (Comply 38.) To establish a trespass, Plaintiff must prove “wrongful interference with his actual possessory right in the property.” Great Atlantic & Pacific Tea Co. v. LaSalle Nat’l Bank, 77 Ill.App.3d 478, 481, 32 Ill.Dec. 812, 395 N.E.2d 1193, 1196 (1979). No liability for trespass attaches, however, when a person’s actions are based on consent, be it express or implied, or privilege. Desnick v. American Broad. Cos., 44 F.3d 1345, 1351 (7th Cir. 1995).
We have already found, for purposes of the Fourth Amendment, that Abdul-Aziz gave Zima consent to enter the apartment. “[T]he law of trespass, however, confers protections from intrusion by others far broader than those required by Fourth Amendment interests.” Oliver v. United States, 466 U.S. 170, 183 n. 15, 104 S.Ct. 1735, 1744 n. 15, 80 L.Ed.2d 214 (1984) (“[Trespass law extends to instances where the exercise of the right to exclude vindicates no legitimate privacy interest.”). As the Supreme Court recognized in Georgia, “Fourth Amendment rights are not limited by the law of property ... the third party’s ‘common authority’ is not synonymous with a technical property interest.” Georgia, 547 U.S. at 110, 126 S.Ct. at 1521. Although a trespass claim is not synonymous with a Fourth Amendment violation, consent can be a defense to both.
Consent in the Fourth Amendment context also does not necessarily operate in the same manner as it does in the context of a trespass claim. See, e.g., Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F.Supp. 1217, 1223 n. 6 (M.D.N.C. 1996) (obtaining consent through false pretenses could sustain a trespass claim, but not necessarily a Fourth Amendment claim with regard to the use of undercover operations, for instance). Here, however, no evidence has been presented suggesting that Abdul-Aziz’s consent in this case would be invalid for purposes of the common law tort of trespass. No evidence has been presented, for instance, suggesting that Zima was operating under false pretenses. Abdul-Aziz testified that Zima did not úse deception or trickery to gain access to the apartment; Zima in fact informed him that he was there to look for Aydin’s phone.
Having received consent to search the apartment from Abdul-Aziz, Zima had privilege to enter and is thus not liable for trespass. We therefore dismiss Plaintiffs common law trespass claim.
B. Malicious Prosecution
A plaintiff must prove the following. elements to succeed on a malicious prosecution claim under Illinois law: (1) a defendant commenced or continued an original criminal or civil judicial proceeding, (2) the proceeding terminated in favor •of the plaintiff, (3) there was the absence of probable cause for such a proceeding, (4) malice was present, and (5) damages resulted to plaintiff. Padilla, 932 F.Supp.2d 907; Curtis v. Bembenek, 48 F.3d 281, 286 (7th Cir. 1995). If any of the elements for a malicious prosecution claim under Illinois law are not satisfied, the plaintiff cannot recover. Swick v. Liautaud, 169 Ill.2d 504, 512, 215 Ill.Dec. 98, 662 N.E.2d 1238, 1242 (1996). The existence of probable cause to arrest, for instance, is a complete defense. Kies v. Aurora, 156 F.Supp.2d 970, 981 (N.D.Ill. 2001).
“An officer has probable cause when . there are ‘facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person ... in believing, in the circumstances shown, that the suspect has committed’ a crime.” Holland v. City of Chi, 643 F-3d 248, 254 (7th Cir. 2011) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979)). For purposes of a malicious prosecution claim, the correct time to review probable cause is at the time the charging document is filed, not the time of arrest. Holland, 643 F.3d at 254 (internal citations omitted).
Zima states that after arriving at the police department, he spoke with Plaintiffs attorney, Loire, over the phone and that he was also shown a faxed order that purportedly vacated the protective or
With regard to Plaintiffs argument as to the faxed order, which was also provided by Plaintiffs attorney, a faxed document is not an official court order. Zima accurately points out that a fax “could have been fabricated, changed or created using a scanner and computer.” (SOF ¶ 69.) Given the threat of forged documents, Zima’s decision to rely on LEADS until a judge could review the information is certainly a reasonable one.
Plaintiff also argues that “Zima could have called the Cook County Clerk for verification as to the status of the order of proteetion[.]” (Resp. at 16.) To the extent that Plaintiff is arguing that Zima had a duty to conduct further investigation, we disagree. Police “need not conduct additional investigation once they have established probable cause.” Holland, 643 F.3d at 255 (citing Mustafa, 442 F.3d at 548). We reemphasize the Seventh Circuit’s finding that “once an officer has trustworthy information establishing probable cause, he is entitled to rely on what he knows in pursuing charges or an arrest, and is under no further duty to investigate.” Beauchamp, 320 F.3d at 744 (emphasis added). Furthermore, as the First Circuit poignantly states with respect to the duty to investigate and establishing probable cause at the time the charges are filed,
The logic underlying these pre-arrest cases applies even more forcefully to discrepancies that come to light only after an arrest has been accomplished ... [T]he initial determination of probable cause should not be undone by a police officer’s assessment of post-arrest evidence that bears adversely on that initial finding. Were the law otherwise, there is a considerable risk that a police officer, subjectively convinced that he has the wrong person, might turn loose a wanted criminal.
For these reasons, we agree with Zima that “[a]ny conflict between LEADS data and a faxed copy of a court order should be sorted out in the courtroom, not on the street or in the station house.” (Mem. at 12.) He therefore had probable cause at the time he filed the charging document.
The presence of probable cause proves fatal to Plaintiff’s malicious prosecution claim for another reason: he has failed to present evidence of malice. See Holland, 643 F.3d at 255; Turner v. City of Chi, 91 Ill.App.3d 931, 935, 47 Ill.Dec. 476, 415 N.E.2d 481, 485 (1980). For purposes of a malicious prosecution claim brought under Illinois law, “malice is defined as the initiation of a prosecution for any reason other than to bring a party to justice.” Holland, 643 F.3d at 255 (citing Rodgers v. Peoples Gas, Light & Coke Co., 315 Ill.App.3d 340, 349, 248 Ill.Dec. 160, 733 N.E.2d 835, 842 (2000)). Malice may be inferred when a defendant lacks probable cause and the circumstances are inconsistent with the prosecutor’s good faith. Holland, 643 F.3d at 255; Denton v. Allstate Ins. Co., 152 Ill.App.3d 578, 587, 105 Ill.Dec. 471, 504 N.E.2d 756, 762 (1986). Although lack of probable cause does not alone establish malice, a trier of fact may infer malice from a lack of probable cause “if there is no other credible evidence which refutes that inference.” Rodgers, 315 Ill.App.3d at 349, 248 Ill.Dec. at 167, 733 N.E.2d at 842.
Plaintiff argues that because the court in Jimenez v. City of Chicago “held that a reasonable jury could infer and therefore find the the [sic] defendants acted with malice because of the lack of investigation based on witness testimony” we should similarly find that Zima acted with malice in this case. (Resp. at 15.) The facts in Jimenez, however, are highly distinguishable from this case. In Jimenez, a witness told the police, against his own interests, that the plaintiff did not shoot the victim; the police received a tape-recording wherein another individual admitted to committing the murder; and defendant officers pressured two witnesses to change their stories and implicate plaintiff. Jimenez v. City of Chi, 830 F.Supp.2d 432, 451 (N.D.Ill. 2011) (holding that a reasonable trier of fact could find that the defendants acted with malice). Unlike Jimenez, in this case there is indeed other credible evidence that refutes an inference of mal
A plaintiff may also demonstrate malice by showing improper motive, such as a prosecutor proceeding with the prosecution for purposes of injuring a plaintiff. Turner v. City of Chi, 91 Ill.App.3d 931, 937, 47 Ill.Dec. 476, 415 N.E.2d 481, 487 (1980). No such improper motive has been made evident in this case, and the circumstances are not inconsistent with a prosecutor’s good faith. Zima did not have improper motive when he based his decision to charge Plaintiff with violating an active order of protection listed in LEADS. While it was highly unfortunate that Plaintiff had to spend several days in jail for a crime he did not commit, Zima’s decision to charge him was a reasonable, not malicious decision. It was proper for a judge, not a police officer, to review the case and assess the information contained in LEADS as well as the vacating order. We therefore dismiss Plaintiffs malicious prosecution claim because no reasonable trier of fact could find that Zima was motivated by malice.
V. Punitive damages
Punitive damages are available even without actual loss upon a showing of aggravating circumstances, malicious intent, or conduct involving reckless or callous indifference to a plaintiffs rights. Sahagian v. Dickey, 827 F.2d 90, 100 (7th Cir. 1987). To be entitled to punitive damages, unlawful conduct must warrant such an award to punish the wrongdoer and deter others. Merriweather v. Family Dollar Stores of Indiana, 103 F.3d 576, 582 (7th Cir. 1996). Punitive damages are available in Section 1983 cases only upon showing the court evil motive and intent or “reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983).
Based on the facts, no reasonable trier of fact could find that Zima engaged in reckless or callous indifference to Plaintiffs rights. As discussed, Zima was entitled to rely on LEADS and the surrounding facts in making a probable cause determination, despite Plaintiffs claims of innocence and the faxed order, both at the time of arrest and processing. His decision to arrest and charge Plaintiff with violating an order of protection was therefore neither reckless, nor callously indifferent, to Plaintiffs rights. Not only .was it reasonable for Zima to rely on LEADS and the surrounding facts when deciding to arrest Plaintiff, but it was also reasonable for him to process and detain Plaintiff until a judge could determine the authenticity of the conflicting documentation. Although this unfortunately meant that Plaintiff served time in jail and wore a GPS monitoring device thereafter, Zima did not act recklessly or with callous indifference when evaluating the information before him and deciding that not only was there probable cause to arrest, but there was also probable cause to file the charging document. Since we find that Zima did not act recklessly or with callous indifference, we also add that no trier of fact could find that Zima’s conduct was based upon evil motive or intent. Plaintiff therefore cannot sustain a claim for punitive damages, which we hereby dismiss.
CONCLUSION
“The Constitution does not guarantee that the police will never blunder when making arrests, but' it establishes certain procedures to ensure that most mistakes will be detected and rectified.” Brady,-187 F.3d at 117. Like the First Circuit in Brady, we also find that “[t]hose mechanisms worked in this case.” Id. Plaintiff was taken before a judge at the earliest opportunity, released, and ultimately acquitted. We conclude this opinion with the following:
While we are mindful of the indignities that accompany arrest and subsequent detainment, we are also mindful of the dangers inherent in tipping the delicate constitutional balance that separates the functions assigned to different departments of government. Far from eliminating errors, imposing liability on police officers for honest mistakes of this kind ... not only would have a detrimental impact on effective law enforcement, but also would threaten the separation of functions that our constitutional system has deployed as a means of minimizing the occurrence (and mitigating the adverse effects) of those very errors.
Id. We uphold the separation of functions between law enforcement and the judiciary necessary to minimize the occurrence of the very error Plaintiff regrettably experienced. For all of the reasons discussed above, Zima and the Village of Justice are not liable for any of Plaintiffs claims. We therefore grant the Defendants’ motion for summary judgment in its entirety.
It is so ordered.
. Abdul-Aziz also states in his deposition that he was 18 and one half-years-old. (Aldakhlla Dep., SOF, Ex. F, 68:18.)
. The parties also agree that at some point Plaintiff and Aydin drove in the direction of Plaintiff's bank to have the document they prepared notarized, but never executed the plan. (SOF, RSOF ¶¶ 19, 21.)
. Zima accurately points out that Plaintiff cites to his own deposition in support of this fact as well as his attorney’s deposition. His attorney's testimony about what Aydin stated constitutes hearsay and is therefore inadmissible. Regardless of the admissibility and/or weight of this fact, however, Aydin’s alleged statement about the vacated order of protection does not affect our analysis as to any of Plaintiff's claims.
. Thereafter, the parties filed their respective Local Rule 56.1 statements. (SOF, Dkt. No. 23; SAF, Dkt. No. 31.) The parties have disputed much of the 56.1 statement of facts as well as the additional statements of fact. (RSOF, Dkt. No. 30; RSAF, Dkt. No. 42.) Additionally, Zima filed an objection to certain paragraphs in Plaintiff's response to his rule 56.1(A) statement of facts. (Obj to Pl.'s Resp, Dkt. No. 36.) We need not rule on these objections because the underlying disputed facts are immaterial to our decision.
. Additionally, with regard to Plaintiff’s argument that "Zima’s own testimony would make the most casual observer incredulous over what, in his opinion, constitutes a violation of an order of protection,” (Resp. at 8), the reasonableness of an officer’s actions does not depend on his subjective motivations. “Rather, the existence of probable cause depends on whether 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.’ ” Tebbens v. Mushol, 692 F.3d 807, 816 (7th Cir. 2012) (citing Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979))).
.“In reviewing probable-cause determinations, it is common and helpful for courts to consider possible innocent alternatives that might explain the facts before the agents [, but] ... the mere existence of innocent explanations does not necessarily negate probable cause[.]” Funches, 327 F.3d at 587 (finding probable cause in part because “no innocent explanations are reasonably apparent as to why [the defendants] wpuld have conducted their transaction in the way they did”).
. Here, Plaintiff produced his identification, which matched the LEADS’ information. There was no doubt that Plaintiff was the individual named in the order of protection.
. With regard to Plaintiff's argument that the information in LEADS is “known to be incorrect,” (Resp. at 6), no evidence indicates that an officer in Zima’s position should have been on notice that LEADS had previously contained incorrect information improperly left in the system. Although one or more Village
. The Seventh Circuit adds that although "a potentially solid claim of alibi might warrant more credit than a bald assertion of innocence,” plaintiffs claim in that case "would not have conclusively established his whereabouts.” Beauchamp, 320 F.3d at 744. Here, even accepting that Aydin made a statement concerning the vacated order and even assuming that Plaintiff or Aydin gave Zima a copy of the order vacating the order of protection, these facts, although they "might warrant more credit than [Plaintiff’s] bald assertion of innocence,” still would not have "conclusively established” that the LEADS information was incorrect and that there was no outstanding order of protection.
. SOF ¶ 59 (citing Zima Dep. 34:16-22 (Zima stated, "I told [Abdul-Aziz] that his brother’s being accused of stealing Lisa’s phone and if it was inside and asked him if he could take a look around for it. He then said, ‘I don’t think [the phone is] in here.” He said, ‘You can come in and help me search for it.' ”)); RSOF ¶ 59 (denying that this actually occurred and citing Aldakhlla Dep. 64:10-24; 65:11-23 (Abdul-Aziz stated that he opened his door and said "Hi” ... "Actually here’s confusing point. He didn't ask for permission, at the same time I couldn't say no for him stop don’t come iñ ... He’s police officer I can't say no for him.”)).
. We emphasize here that Abdul-Aziz testified that he never heard his brother yelling to him that Zima did not have permission to enter the apartment. (Aldakhlla Dep. 67:20-24, 68:1-4.)
. "[I]t is the well-established law of this circuit that the usual practice is to dismiss without prejudice state supplemental claims whenever all federal claims have been dismissed prior to trial.” Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999); Leister v. Dovetail, Inc., 546 F.3d 875, 882 (7th Cir. 2008); Williams v. Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007). Under such circumstances, the balancing of "judicial economy,
. Because we find that there was consent to enter Plaintiff’s residence, we need not address the parties’ arguments as to whether Zima was exercising legal privilege or public duty when he entered for the purpose of retrieving Aydin's cell phone.
. According to Plaintiffs attorney, someone at the Justice Police Department informed her over the phone that despite receiving the faxed order, they could not release Plaintiff, even if they were to verify the order with the Cook County Clerk because “their procedures would only allow them to go by the LEADS system ... Dakhlallah would have to be held until the morning until he saw a judge and that the judge would release him there, once she saw the terminated order of protection.” (Loire Dep., Pl.’s SAF, Ex. 3, 57:1-9.)
. The First Circuit further elaborates:
And, once police feel pressured to make such decisions, they may encroach upon the judiciary’s functions, denigrating the authority of warrants issued under the auspices of judicial officers. Should that come to pass, the concerns about unbridled police action that the Gerstein Court underscored, 420 U.S. at 117-18, 95 S.Ct. 854, may be realized. Such a happenstance would pose a much greater danger to an ordered conception of liberty than the occasional snafu that the separation of functions regime thus far has produced.
Brady, 187 F.3datll4.
Reference
- Full Case Name
- Yaser DAKHLALLAH v. Justice Police Officer Cpl. Ryan ZIMA, and the Village of Justice
- Cited By
- 8 cases
- Status
- Published