Opinion
No. 99 C 1633
May 19, 2000
MEMORANDUM OPINION AND ORDER
Velois and Buddy Murray ("Plaintiffs") bring an action for damages under 42 U.S.C. § 1983 ("1983). Plaintiffs allege that Dennis Maderak ("Maderak"), John Nee ("Nee"), D. Sampali ("Sampali"), S. Kuchar ("Kuchar"), R. Schaeffer, W. Whitters, James E. Fitzmaurice ("Fitzmaurice"), A. Harris, L. Minor, and unknown officers (collectively, "Defendants"), all Chicago police officers who participated in a search of their home, violated their constitutional rights. Plaintiffs also assert a claim of civil conspiracy. Before this court is Defendants' motion for summary judgement on all counts of Plaintiffs' complaint. For the reasons discussed below, Defendants' motion is granted.
I Factual Background
Plaintiffs are an elderly couple residing at 6930 South Michigan Avenue in Chicago, Illinois. In March 1992, Plaintiffs' home was searched ("1992 search") pursuant to a search warrant obtained by Officer Maderak, a Gang Crime Specialist assigned to Gang Crimes West of the Chicago Police Department. The supporting affidavit stated that a confidential informant ("CI") had informed Maderak that Keith Murray, Plaintiffs' son, was selling weapons to gang members. Firearms, drugs, and United States currency were seized upon the execution of the search warrant, in which Maderak and Nee, among others, were involved. Plaintiffs claimed that the officers took more than $20,000 in cash from their home. Only $7,000, however, was inventoried by the police, and that amount was eventually returned to Plaintiffs. No one was charged with any crime based on the 1992 search.
On March 13, 1997, Maderak filed another complaint for a search warrant for Plaintiffs' home. The facts supporting probable cause and reported in the affidavit were supplied by a CI. The affidavit stated that the CI had worked with Maderak and fellow Gang Specialist Nee for approximately five years. During that period, the CI had provided information which had lead to two felony convictions and two additional arrests.
The affidavit accompanying the complaint set forth the substance of a conversation that Maderak had with the CI on March 12, 1997. According to the affidavit, the CI:
The affidavit states that the information supplied by the CI was "obtained . . . by Gang Specialists Dennis Maderak and John Nee." Nee, however, testified that only Maderak had spoken with the CI.
was in [a] house located at 6930 S. Michigan, Chicago, Illinois on several occasions and was shown numerous weapons on each of these occasions by a subject known to him/her as Keith Murray, a member of the Gangster Disciples Street Gang. On March 12, 1997, the C/I was again in [the] house at 6930 5. Michigan with the subject known to him/her as Keith Murray. The C/I has known Keith Murray for a period of approximately ten years. The C/I went on to relate that Keith Murray had actively been in possession of weapons for himself and other gang members for as long as he/she has known him. The [C/I] stated while in the house located at 6930 S. Michigan on March 12, 1997, in the evening hours, Keith Murray took him/her to the basement where he showed him/her a AK-47 B/s rifle and a 9 m.m. semi-automatic B/S handgun. Also in clear view was a quantity of white powder substance which the C/I he [sic] believed to be cocaine. At this time a conversation took place at which time Keith Murray stated to the C/I that the weapons were for the protection of the narcotic sales of the Gangster Disciples Street Gang. The C/I further stated as he/she left the building at 6930 S. Michigan, the above described weapons were in Keith Murray's basement.
The affidavit recounted how the CI provided the officers with a description of the exterior of the house located at 6930 S. Michigan, which the officers verified. In addition, the affidavit set forth Keith Murray's criminal history, which revealed that he had been convicted on four criminal charges, the most recent on October 3, 1994 for Unlawful Use of Weapon by Felon and Possession of Controlled Substance. The affidavit also detailed Maderak's police experience: he had worked as an investigator for the Chicago Police Department for over 29 years and had been assigned to the Organized Crime Division, Gang Investigation Section for 22 years.
Illinois Circuit Court Judge D. Kelly found that Maderak's complaint stated facts sufficient to show probable cause. Accordingly, a search warrant was issued for the person of Keith Murray and the premises located at 6930 S. Michigan in Chicago. The warrant provided for the seizure of, among other things, proof of residency, firearms, and United States currency which have been used in the commission of or which constitute evidence of unlawful use of weapons by a felon. 720 ILCS § 5/24-1.1(a).
On March 14, 1997, at approximately 9 a.m., Maderak and the other defendant officers, all in plain clothes, executed the search warrant on Plaintiffs' home at 6930 S. Michigan Avenue. The officers were informed that Keith Murray had not resided at the Plaintiffs' home since 1984, but that he had been there the night before. When the officers asked Buddy Murray whether there were guns in the house, he directed them to three firearms. When asked whether there were any drugs in the house, Murray responded, "Not that I am aware of, but if you find a tractor-trailer of it in there, it belongs to me."
At his deposition, Officer Fitzmaurice testified that upon a search of the basement of the house, he recovered a Crown Royal bag bidden in the rafters of the stairwell. When Fitzmaurice opened the bag, he saw that there were rolls of U.S. currency inside, but he testified that he had not seen any drugs in the bag. Only Fitzmaurice and Nee were in the basement when the Crown Royal bag was initially discovered. Maderak joined the two downstairs when he heard someone yell that something had been found. The bag was handed over from Fitzmaurice to Maderak.
Maderak testified at his deposition that the officer who found the bag (he could not recall who that was) said that there was money and two bags of "dope" in the bag.
Maderak claims that he then went upstairs to give the Crown Royal bag to Lt. Sampali and Sgt. Kuchar, who were standing in the same room as the Murrays. Plaintiffs, however, did not witness Maderak giving the Crown Royal bag to Sampali and Kuchar. Nor did Nee or Fitzmaurice recall seeing anyone other than Maderak with the bag. None of the officers informed the Murrays that any money had been recovered, and Velois Murray did not see any Defendants holding the Crown Royal bag. After discovering the Crown Royal bag, the officers asked Plaintiffs whether they kept "large sums of money" in the house. Buddy Murray asked what constituted a "large sum," but received no reply. When asked again whether he had a large sum of money in the house, Buddy Murray answered in the negative.
Before leaving Plaintiffs' residence, the officers did not offer Plaintiffs a copy of the inventory or receipt of the items removed from their home. Instead, the inventory was taken at the station house, and by this time, Maderak was in possession of the bag. On March 14, Maderak and Nee signed an inventory documenting that three firearms, $7,480 in U.S. currency comprised of sixty $100 bills and 39 $20 bills, and two small bags containing a white rock-like-substance which they suspected to be rock cocaine were recovered from the search. Nee testified that he did not witness Maderak counting the money. Although authorized to seize proof of residency for Keith Murray, officers only retrieved a letter addressed to Keith Murray from the National Association for the Advancement of Colored People.
Although Defendants state that drugs were recovered, the inventory sheet documenting the seizure of any such drugs was not submitted to this court. Furthermore, Plaintiffs state that a forfeiture complaint was filed, but then later abandoned. They do not, however, supply documentation supporting that assertion.
Buddy Murray discovered that between $17,000 and $18,000 of his money had been taken when he went to the basement following the execution of the search warrant. When Buddy Murray went to the local police station to retrieve the missing money, an unknown officer informed him that no money had been recovered from the search of his home. On May 28, 1997, Buddy Murray filed a complaint with the Chicago Police Department. On September 12, 1997, the Circuit Court of Cook County issued an order releasing $7,480 to Plaintiffs. Defendants did not contest this release. The 1997 search did not lead to any charges against Keith Murray or Plaintiffs.
II. Summary Judgment Standard
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308 (7th Cir. 1995). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-movant, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
The movant bears the burden of establishing that there exists no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). If the movant meets this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Rule 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53. A scintilla of evidence in support of the non-movant's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [nonmovant]." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Weighing evidence, determining credibility, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Anderson, 477 U.S. at 255, 106 S.Ct. at 2515.
III. Analysis
In their complaint, Plaintiffs set forth two explicitly labeled counts: a § 1983 count for unlawful deprivation of property as well as a count for civil conspiracy. After detailing the circumstances surrounding the search of their home, Plaintiffs also allege that Defendants' actions "violated Plaintiffs' Fourth Amendment right to be free from unlawful search and seizure." (Compl. ¶ 30, 33). This constitutional claim, however, was not designated as a separate count. Defendants now seek to limit Plaintiffs' action to the two counts explicitly titled as such in their complaint.
When fairly construed, Plaintiffs' complaint encompasses not only the claims for deprivation of property and conspiracy, but also a Fourth Amendment claim for unreasonable search and seizure, made applicable to the states through the Fourteenth Amendment. Plaintiffs' failure to explicitly designate it as a separate claim may have been misleading in light of the labels adorning the Fifth Amendment deprivation of property and conspiracy claims. Nevertheless, the ambiguity does not render the untitled claim fatal. The body of Plaintiffs' complaint adequately asserts a Fourth Amendment violation, and it will be allowed to stand.See Wright Miller, § 1216 ("The pleader is entitled to considerable latitude regarding the mode of stating his claim for relief, provided the pleading gives reasonable notice of the claims asserted."); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) ("instead of asking whether the complaint points to the appropriate [legal theory], a court should ask whether relief is possible under any set of facts that could be established consistent with the allegations").
In contrast, Plaintiffs' First Amendment claim for denial of access to the courts does not fare so well. Even a broad reading of the complaint does not persuade this court that a First Amendment violation was properly alleged. This theory was first raised in Plaintiffs' answer to Defendants' summary judgment motion, and therefore will be stricken. See Thompson v. Nachtrieb, 888 F.2d 1202, 1205 (7th Cir. 1989) (stating that a complaint may not be amended by briefs). Moreover, Plaintiffs have not even remotely alleged the facts and theories underlying such a claim; rather, the claim was merely mentioned in passing (in two sentences) in Plaintiffs' brief. Without a specific record upon which to proceed, the court cannot and will not address the merits of the purported First Amendment claim. See Harden v. Peck, 686 F. Supp. 1254, 1256n.2 (ND. Ill. 1988).
The remaining claims will be discussed in turn.
A. Fourth Amendment Claim
When an individual's federally protected rights have been violated by state and local officials, § 1983 makes available compensatory damages. See Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038 (1987) ("When governmental officials abuse their offices, action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.") The doctrine of qualified immunity, however, shields police officers from liability, protecting them from "undue interference with their duties and from potentially disabling threats of liability." Tangwell v. Stuckey, 135 F.3d 510, 514 (7th Cir. 1998).
In the context of arrest and search warrants, the courts have equated the § 1983 qualified immunity analysis with the good faith exception to the exclusionary rule. Olson v. Tyler, 825 F.2d 1116, 1120 (7th Cir. 1987). Accordingly, officers are immune from suit so long as their actions do not violate a clearly established federal statutory or constitutional right of which a reasonable person would have known.Wollin v. Gondert, 192 F.3d 616, 625 (7th Cir. 1999). If reasonably competent officials could have disagreed as to the lawfulness of the alleged wrongful conduct, the officers are entitled to qualified immunity. See Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). If, on the other hand, no objectively reasonable officer would have believed that the warrant should issue, then the officers are subject to liability under § 1983. Id. Plaintiffs bear the burden of setting forth a clearly established right sufficient to overcome the shield of immunity. Kernats v. O'Sullivan, 35 F.3d 1171, 1176 (7th Cir. 1994).
Plaintiffs filed this civil rights action under § 1983 for alleged violations of the constitutional rights guaranteed to them by the Fourth and Fourteenth Amendments. Plaintiffs contend that the warrant authorizing the search of their home was not supported by probable cause to the extent that it relied solely upon a confidential informant, whom Plaintiffs claim was neither reliable nor credible. The search of their home, which was executed pursuant to this constitutionally defective warrant, Plaintiffs claim, amounted to a violation of their right to be free from unreasonable searches and seizures. To pierce the officer's shield of immunity, however, Plaintiffs must demonstrate that reasonably competent officers in Defendants' positions would not have concluded that the allegations set forth in the affidavit were sufficient to establish probable cause.
An affidavit supporting a warrant establishes probable cause when it "sets forth facts sufficient to induce a reasonable prudent person to believe that a search thereof will uncover evidence of a crime." United States v. Jones, 208 F.3d 603, 608 (7th Cir. 2000) (quoting United States v. McNeese, 901 F.2d 585, 592 (7th Cir. 1990)). When an affidavit relies on an informant's tip, the probable cause determination requires an examination of the totality of the circumstances, including an assessment of the informant's veracity, reliability, and basis of knowledge.Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The courts have also underscored the "value of corroboration of details of an informant's tip by independent police work." United States v. McKinney, 143 F.3d 325, 328 (7th Cir. 1998).
Where the credibility of an informant is at issue, then, the relevant considerations are: (1) the informant's personal observations, (2) the degree of detail given, (3) independent police corroboration of the informant's information, and (4) whether the informant testified at the probable cause hearing. Jones, 208 F.3d at 608 (citing United States v. Singleton, 125 F.3d 1097, 1103-04 (7th Cir. 1997)). As long as there existed a "substantial basis for . . . conclud[ing] that a search would uncover evidence of wrongdoing," the issuance of a warrant will be upheld. Gates, 462 U.S. at 238-39, 103 S.Ct. 2317, 2332. The determination of probable cause varies with the facts of each case. Jones, 208 F.3d at 608.
Plaintiffs question the CI's reliability because she failed to provide a sworn statement, she never participated in a controlled buy, and she did not provide a description of the interior of the house even though she claimed to have been in the basement. Indeed, the courts have emphasized the importance of an informant's presence at the hearing before the issuing judge or her submission of a sworn affidavit. See Jones, 208 F.3d at 608 ("When a CI accompanies the officer and is available to give testimony before the judge issuing the warrant, his presence adds to the reliability of the information used to obtain the warrant, because it provides the judge with an opportunity to assess the informant's credibility and allay any concerns he might have had about the veracity of the informant's statements.") (quoting United States v. Lloyd, 71 F.3d 1256, 1263 (7th Cir. 1995)).
By insisting that the CI should have provided a description of the interior of the house, Plaintiffs put the cart before the horse. Details about the home's interior, no less the basement, could not have been corroborated by police until and unless they had a warrant permitting them to first enter the house. Such information would have been useless in strengthening the sufficiency of the affidavit.
Thus, when a CI is unavailable for questioning by the issuing judge, the courts have generally required more indicia of reliability. Controlled buys and police surveillance provide strong corroboration of a CI's information. See McKinney, 143 F.3d at 328 ("Controlled buys add great weight to an informant's tip"). See, e.g., United States v. Reddrick, 90 F.3d 1276, 1280-81 (7th Cir. 1996) (finding that although CI's information alone could not support issuance of warrant, added testimony of controlled buys supported probable cause); United States v. Roth, 201 F.3d 888, 892 (discussing police corroboration through surveillance work). Corroborating information from multiple informants also serves the same end. See, e.g., United States v. Spry, 190 F.3d 829, 836 (7th Cir. 1999); United States v. Pless, 982 F.2d 1118, 1125 (7th Cir. 1992).
In the instant case, the CI did not accompany Maderak to give testimony before the judge issuing the warrant, and no evidence of controlled buys or police surveillance work was presented to the judge, thereby weakening the foundation necessary for a probable cause finding. On the other hand, the CI's information was predicated on her firsthand observation of the firearms possessed by Keith Murray within the twenty four hour period prior to the issuance of the warrant. She detailed the types of guns shown to her, their location, and also described Keith Murray's physical appearance, all of which was included in the affidavit. The CI described the exterior of the house at 6930 S. Michigan, which Maderak independently verified. See generally Lloyd, 71 F.3d at 1263 (considering like factors, among others, in finding probable cause).
Additional considerations bolstered the CI's reliability. The CI had a track record of directing police to evidence that ultimately lead to several arrests and convictions for unlawful use of a weapon and unlawful possession of controlled substances. See, e.g., United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991) (noting that a CI's history of providing information leading to charges is an indication of reliability). But see Reddrick, 90 F.3d at 1280 (agreeing with the magistrate judge's finding that "to the extent that Officer Ash states that the informant provide reliable information in the past, it is an unsupported conclusion which does not demonstrate probable cause"). In addition, a background investigation into Keith Murray's criminal history showed that he had last been convicted on October 3, 1994 for unlawful use of a weapon by a felon and possession of controlled substances, thereby lending support to the CI's allegations of Keith Murray's possession of weapons and drugs.
An examination of the totality of the circumstances suggests that this was a close call. On the one hand, the CI proffered first-hand, detailed observations of Keith Murray's gun possession. The CI had proved herself to be reliable in the past, and Keith Murray's criminal background seemingly corroborated her account. On the other hand, the CI's information was thinly corroborated. Maderak did not pursue any further investigation into the CI's allegations, other than confirming her description of the exterior of the house, which is information that any passerby could have correctly conveyed. In addition, the court is skeptical about how much probative weight should have been accorded to Keith Murray's prior convictions as corroboration of the CI's account, especially in light of the fact that his most recent conviction had occurred three years prior to the application for the warrant. The absence of additional police work, such as a controlled buy or surveillance, would have not been so problematic had the issuing judge been presented with other indicia of reliability — such as corroborating informants or the CT's availability before the issuing judge. The "clearly established law," however, does not resolve whether the CI's information supported a finding of probable cause.
In Reddrick, a CI told an officer that he observed 13 kilos of cocaine inside an individual's residence. 90 F.3d at 1279. Armed with this information, the officer applied for a search warrant. No affidavits were presented at the probable cause hearing; instead, the officer provided testified before the issuing judge. Id. When questioned by the judge, the officer relayed the information given to him by the informant and also noted that the CI had supplied the officer with reliable information on three prior occasions. 90 F.3d at 1279-80. The Seventh Circuit indicated that under these circumstances the information from the informant alone could not support the issuance of a search warrant. 90 F.3d at 1280-81. In contrast to the instant case, however, the CI in Reddrick offered no detail other than stating the amount of drugs observed. Here, the CT identified the types of guns shown to her by Keith Murray as well as their location. The CT also described the exterior of the house, as well as Keith Murray's appearance. Whether the additional detail proffered by the CI in the present case suffices to surpass the threshold of reliability is, frankly, unclear.
Harden v. Peck, 686 F. Supp. 1254, 1259 (N.D. Ill. 1988), however, suggests that probable cause was established in the present case. Confronted with an affidavit bearing similar indicia of reliability, Judge Zagel concluded that:
The factual allegations in [the officer's] Affidavit clearly are sufficient to establish probable cause to believe that Harden had sold and was still in possession of cocaine. [The officer] received the information contained in his Affidavit from a person (the Informant) whom [the officer] had known for two years, and who had provided [the officer] with reliable information on three separate occasions in the previous three months. The Informant told [the officer] that he had just gone to Harden's home at 12024 S. Justine in Chicago that same day and purchased $100 worth of cocaine from Harden.686 F. Supp. at 1259. The Harden opinion then went on to state that "[w]hatever else one might say about [the officer's] Affidavit, it certainly cannot be maintained that it was so lacking in indicia of probable cause as to render [the officer's] belief in its existence unreasonable. 686 F. Supp. at 1259 (quoting Malley, 475 U.S. at 344, 106 S.Ct. at 1098). Judge Zagel's sentiment wholly applies in the instant case. Put differently, reasonable officers could disagree as to whether the affidavit supported probable cause in light of well-established law.
The Seventh Circuit articulated four relevant considerations for determining a CI's credibility: personal knowledge, degree of detail, independent police corroboration, and CI testimony before the issuing judge. The instant case satisfied, at the very least, two of the four criteria. Because the probable cause determination is fact-intensive, the courts have not laid down a bright line test that requires that a certain number of the four indicia be satisfied before finding that a CI's information establishes probable cause. Thus, it cannot be said that clearly established law required that additional police corroboration above and beyond the actions taken by Maderak (namely, verifying the description of the house and checking on Keith Murray's criminal history) and/or the CI's availability for questioning be present to establish probable cause. When Defendants relied on the search warrant issued to them by a neutral judge, they did so not unreasonably. See Wollin, 192 F.3d at 624 ("[W]here a magistrate acts mistakenly in issuing a warrant but within the range of professional competence of a magistrate, the officer who requested the warrant cannot be held liable under § 1983."). Defendants are entitled to qualified immunity from suit.
Plaintiffs next maintain that the search warrant was procured fraudulently. They contend that Maderak misrepresented himself to the issuing judge. Securing a warrant "through false statements where the issuing magistrate would not otherwise find probable cause violates the Fourth Amendment guarantee against unreasonable searches and seizures."Lloyd v. United States, No. 99 C 3347, 1999 WL 759375, at *4 (N.D. Ill. Sep. 3, 1999). See also United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 3421, 82 L.Ed.2d 677 (1984). In the aftermath of the 1992 search, Plaintiffs assert, Maderak knew that Keith Murray was no longer living in their home. Plaintiffs argue that the inclusion of this falsity in Maderak's affidavit undermined the validity of the warrant as well as Defendants' ability to raise an immunity defense.
Plaintiffs' argument is defective in several respects. First, Plaintiffs assume that the affidavit established that Keith Murray was residing at 6930 S. Michigan. However, the affidavit merely indicated that Keith Murray had been present at that address on the evening of March 12, not that he necessarily lived there. Hence, there was no false information relayed to the judge. Second, even if Maderak's affidavit had represented that Keith Murray lived at that address, such a contention is wholly plausible. Plaintiffs insist that Maderak should have known that Keith Murray was not living at their home at the time of the 1992 search. Plaintiffs' son, however, could have moved into Plaintiffs' home during the five year interlude between the 1992 search and the 1997 warrant application. In the alternative, had the issuing judge been informed that Keith Murray was not living at Plaintiffs' home, such awareness would not have taken away from a finding of probable cause.
Plaintiffs also contend that Maderak's involvement in the issuance of the 1992 search warrant and its execution suggest that he omitted critical information to the judge issuing the 1997 warrant. Plaintiffs believe that the same CI who submitted information leading to the 1992 warrant also served as the source for the 1997 warrant. When the 1992 search failed to lead to any arrests, Plaintiffs argue, the credibility of the CI was sufficiently undermined such that Maderak's continued use of the same informant and the warrant issued therefrom indicate that he unreasonably relied on these sources. Plaintiffs also insist that Maderak should have disclosed the CI's involvement in the outcome of the 1992 search to the judge issuing the 1997 warrant.
It is plausible that the same CI who worked with Maderak in 1992 again supplied him with information about Keith Murray in 1997. Defendants neither deny nor confirm Plaintiffs' contention. The 1992 affidavit reveals that Maderak had known the CI for a period of one month and the CI had claimed to have known Keith Murray for at least five years. At the time of the 1997 affidavit, Maderak had known the CI for roughly five years while the CI claimed to have known Keith Murray for about ten years. The coincidental timing supports Plaintiffs' belief that the two CI's are one in the same. If Maderak relied on the same CI in 1992 and in 1997, it is unclear why he chose not to disclose this prior relationship to the judge issuing the 1997 warrant.
Where an officer "knows, or has reason to know, that he has materially mislead a magistrate on the basis for a finding of probable cause, as where a material omission is intended to enhance the contents of the affidavit as support for a conclusion of probable cause," qualified immunity is not applicable. Golino v. City of New Haven, 950 F.2d 864, 871 (7th Cir. 1991). Therefore, officers are subject to suit where they have intentionally or recklessly omitted material information from an affidavit. Id. Recklessness "may be inferred where the omitted information was critical to the probable cause determination." Id.
To the extent that Plaintiffs are intimating that the absence of any arrests flowing from the 1992 search warrant now undermines the lawfulness of the 1997 warrant, they are amiss. A warrant does not become invalid because the information upon which it is based is later deemed to be inaccurate. See Gramenos v. Jewel Co., Inc., 797 F.2d 432, 439 (7th Cir. 1986) ("Probable cause does not depend on the witness turning out to have been right.") It is then a long-shot to argue that the lack of arrests resulting from the 1992 warrant somehow renders unconstitutional the 1997 warrant. Had the issuing judge been aware of the 1992 warrant and its execution, that information would not have made any difference to the determination of probable cause in 1997. If Plaintiffs' position is that the 1992 incident tended to establish that the CI had improper motivations for supplying Maderak with information, and Maderak was aware of these bad motives, then the circumstances surrounding the 1992 warrant and its execution might have been relevant to the procurement of the 1997 warrant. Yet Plaintiffs have failed to supply any facts supporting such a theory. Maderak's failure to disclose this prior incident, then, was not material to the determination of probable cause in 1997.
Furthermore, Plaintiffs argue that because the 1992 search of their home did not lead to any charges against them, Maderak should have been convinced of Plaintiffs' innocence with respect to the commission of any crime, which in turn should have persuaded him that the warrant was not supported by probable cause. Plaintiffs' misconstrue the nature of the probable cause determination.
Although both arrest and search warrants are subject to a judicial determination of probable cause, the relevant inquiries are distinct. An arrest warrant issues upon a showing that probable cause exists to believe that the subject of the warrant has committed an offense.Steadgald v. United States, 451 U.S. 204, 213, 101 S.Ct. 1642, 1648, 68 L.Ed.2d 38 (1981). A search warrant, on the other hand, is issued upon a showing of probable cause to believe that the "legitimate object of a search is located in a particular place, and therefore safeguards an individuals' interest in the privacy of his home and possessions against the unjustified intrusion of the police." Id. Search warrants, then, are not directed at persons; rather, they authorize the search of places and the seizures of things. Zurcher v. Stanford Daily, 436 U.S. 547, 544, 98 S. Ct. 1970, 1975, 56 L.Ed.2d 525 (1978).
Accordingly, authorizing the search of Plaintiffs home did not mean that Plaintiffs were suspected of engaging in any crime. It was permissible to issue a search warrant for the Plaintiffs' home as long as there was "probable cause to believe that fruits, instrumentalities, or evidence of a crime" would be discovered there. Zurcher, 436 U.S. at 544, 98 S.Ct. at 1975. The alleged crime did not necessarily have to be connected to the owners of the home, namely, Plaintiffs. Wyoming v. Houghton, 526 U.S. 295, 302, 119 S.Ct. 1297, 1301, 143 L.Ed.2d 408 (1999) ("The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific "things' to be searched for and seized are located on the property to which entry is sought.") (quoting Zurcher, 436 U.S. at 544, 98 S.Ct. at 1975).
Plaintiffs also assert that the manner in which the 1997 search warrant was executed constituted an unreasonable search and seizure. Contrary to their claim, however, Buddy Murray testified that the officers showed him their badges as well as a copy of the search warrant. In a letter of complaint against the officers, Buddy Murray also mentioned that the police rang the doorbell and that he allowed them to enter the premises. Although the evidence indicates that the police ransacked the Murrays' home in 1992 causing substantial damage to their property, no such allegations are made about the 1997 search. Thus, Plaintiffs have failed to demonstrate that the officers failed to observe the formalities required for the entry into their home.
B. Conspiracy Claim
A civil conspiracy is defined as a combination of two or more persons acting in concert to commit an unlawful act, or a lawful act by unlawful means. Scherer v. Balkema, 840 F.2d 437, 441 (7th Cir. 1988). The principle elements of a conspiracy claim are an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damage. Id. Accordingly, a prima facie case of conspiracy requires a plaintiff to establish: (1) an express or implied agreement among the defendants to deprive the plaintiff of her constitutional rights; and (2) actual deprivation of those rights in the form of overt acts in furtherance of the agreement. Id. at 442. Because direct evidence of a conspiracy seldom exists, circumstantial evidence may provide adequate proof of a conspiracy. Hampton v. Hanrahan, 600 F.2d 600, 621 (7th Cir. 1979), rev'd in part on other grounds, 446 U.S. 754 (1980). To demonstrate the existence of a conspiratorial agreement, Plaintiffs must show that there was a "single plan the essential nature and general scope of which was known to each person who is to be held responsible for its consequences." Id.
Plaintiffs allege that the officers conspired to violate their constitutional rights to be free from unreasonable search and seizure as well as their right to due process. Plaintiffs' response to Defendants' request for summary judgment on this claim amounts to the following paragraph:
The Plaintiffs' have sufficiently plead sufficient facts to establish a prima facie case for conspiracy between the defendants. The defendants do not assert that the pleadings are inadequate or insufficient. Further, they fail to submit any argument or evidence to establish that there is no genuine issue of fact to the conspiracy claim, except to simply deny it in their unverified answers. On the basis of their simple denial of this material fact, a genuine issue is exists [sic] between the parties as to this material fact. This argument in their Motion is not supported by any evidence, and as such, defendants' claim fails to meet the required burden.
(Pl. Memo. at 10). Contrary to Plaintiffs assertions, Plaintiffs, not Defendants, bear the burden of proof for establishing the elements of their conspiracy case, even at the summary judgment stage. Yet Plaintiffs have utterly failed to bear this burden.
Plaintiffs direct the conspiracy count to all named defendants. However, Plaintiffs have failed to present any facts from which to infer that any two or more of the Defendants reached an agreement to deprive Plaintiffs of their constitutional rights. Cf. Carr v. Village of Richmond, No. 96 C. 50203, 1997 WL 662356, at *5 (N.D. Ill. Oct. 15, 1997) (stating that the mere fact that officers "who worked together and shared common knowledge engaged in a joint venture does not make a conspiracy"). One of the officers may have pocketed the $10,000 that, according to Buddy Murray, was not inventoried. For the purpose of this summary judgment motion, this court will accept that proposition as true. Yet a conspiracy must necessarily involve another person, and the court is left to speculate as to how and when another officer became complicit in this wrongdoing, whether it be in the taking of the money or its cover-up.
Plaintiffs' conspiracy theory seems to rest on their assertion that there was more money in the Crown Royal bag at some time prior to the search than was reported by police. Plaintiffs leave to the imagination what happened to the unaccounted money. The court can hypothesize a variety of scenarios: Fitzmaurice and Nee may have taken the money upon first discovering the Crown Royal bag in the basement. Maderak may have been in on it too, when he later joined the two in the basement. Maybe Maderak and Nee conspired together when they went to the station to count the cash. or maybe the whole team of officers was complicit.
The scenarios are endless, but the point is that Plaintiffs do not even offer a theory, much less any facts which would lead to an inference of a conspiracy. Plaintiffs fail to assert any facts which would suggest that a theft necessarily included more than one person. Plaintiffs do not point to any meeting or discussion had among Defendants during which they could have plausibly agreed to violate Plaintiffs' rights, and the court cannot proceed on unsupplied facts. Without tendering some threshold level of circumstantial evidence, Plaintiffs are unable to defeat summary judgment. As is apparent from the paragraph quoted from their brief, Plaintiffs have failed to set forth any evidence establishing a conspiratorial agreement. See Kunik v. Racine County, Wisconsin, 946 F.2d 1574, 1580 (7th Cir. 1990) (stating that an allegation of civil conspiracy must be "supported by some factual allegations suggesting a `meeting of the minds'"). Summary judgement is granted in favor of Defendants on this claim.
C. Deprivation of Property Claim
Plaintiffs' remaining and most substantial claim, brought under § 1983, alleges that the defendants' taking of their monies while reporting only a fraction of the amount taken constituted a deprivation of property without due process of law in violation of their Fifth Amendment rights. Defendants counter that an adequate postdeprivation remedy precludes liability in the instant case. Indeed, an adequate state postdeprivation remedy is "all that due process requires to protect against a wrongful deprivation of property occasioned by the random and unauthorized act of a public official." Bullock v. Dioguardi, 847 F. Supp. 553, 562 (ND. Ill. 1993). See Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984).
Postdeprivation remedies are relevant in the § 1983 context only to procedural constitutional violations. Schertz v. Waupaca County, 683 F. Supp. 1551, 1576 (W.D. Wis. 1988) (citing Hudson, 468 U.S. at 533, 104 S.Ct. at 3203). The availability of alternative state remedies does not affect substantive constitutional proscriptions applicable to the states. Id. ("[W]hen a plaintiff alleges that states action has violated an independent substantive right, he asserts that the action itself is unconstitutional. If so, his rights are violated no matter what process precedes, accompanies, or follows the unconstitutional action") (quoting Augustine v. Doe, 740 F.2d 322, 327 (5th Cir. 1984)).
Plaintiffs' attempt to construe the deprivation of property as a substantive due process violation is unavailing. Supreme Court has noted that the courts have "always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open ended." Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992). The court is hardpressed to find any legal support for the proposition that a substantive due process right was violated in this case. Had any substantive claims survived, Plaintiffs would have been able to maintain their § 1983 action before this court. However, only the procedural claim remains in this case. An alternative remedy is available to Plaintiffs under the state common law tort of conversion.See Bullock, 847 F. Supp. at 562 (citing Heimburger v. Village of Chebanse, 124 Ill. App.3d 310, 463 N.E.2d 1368, 79 Ill. Dec. 593 (1984)). In light of the adequate postdeprivation remedies provided by the state courts, Defendants cannot be subject to § 1983 liability for depriving Plaintiffs of property without due process. Accord Greco v. Guss, 775 F.2d 161, 169 (7th Cir. 1985). Plaintiffs' deprivation of personal property claim is therefore dismissed.
IV. Conclusion
For the foregoing reasons, Defendants' Motion for Summary Judgement is GRANTED. This case is CLOSED.