739 F.2d 1186 (7th Cir. 1984), 83-1372, Llaguno v. Mingey

Docket Nº:83-1372.
Citation:739 F.2d 1186
Party Name:Gloria LLAGUNO, Guillermo Llaguno, Leticia Llaguno, Pauline Belcher, Carmen Noyola, James David Llaguno, Gloria Jane Llaguno, and James David Llaguno, Jr., Roger Llaguno, and Rene Llaguno, minors, by their father and next friend, James David Llaguno, Plaintiffs-Appellants, v. Edward MINGEY, William Connor, Joseph Sparks, James Troken, Joseph Fallon
Case Date:July 10, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1186

739 F.2d 1186 (7th Cir. 1984)

Gloria LLAGUNO, Guillermo Llaguno, Leticia Llaguno, Pauline

Belcher, Carmen Noyola, James David Llaguno, Gloria Jane

Llaguno, and James David Llaguno, Jr., Roger Llaguno, and

Rene Llaguno, minors, by their father and next friend, James

David Llaguno, Plaintiffs-Appellants,


Edward MINGEY, William Connor, Joseph Sparks, James Troken,

Joseph Fallon, James Sesso, Martin Burke, Edward

Cagney, William Rooney, Michael Fleming

and James Lanners, Defendants-Appellees.

No. 83-1372.

United States Court of Appeals, Seventh Circuit

July 10, 1984

Page 1187

[Copyrighted Material Omitted]

Argued Feb. 23, 1984.

Page 1188

Rick Schoenfield, Ettinger & Schoenfield, Ltd., Chicago, Ill., for plaintiff-appellant.

Philip L. Bronstein, Chief Asst. Corp. Counsel, Chicago, Ill., for defendant-appellee.

Before PELL and FLAUM, Circuit Judges, and HENLEY, Senior Circuit Judge. [*]

HENLEY, Senior Circuit Judge.

Appellants brought suit under 42 U.S.C. Sec. 1983 alleging that certain members of the Chicago Police Department violated their civil rights in entering and searching their home without probable cause. In addition, appellant James David Llaguno (hereinafter referred to as David Llaguno) alleged that he was illegally arrested, searched, and detained for forty-two hours. The case proceeded to trial and a jury returned a verdict for the officers on all counts. On appeal, the appellants claim that the district court erred in the giving of certain jury instructions and in various evidentiary rulings. They also allege that they should have prevailed on some of their claims as a matter of law. Since we agree with the latter contention, we reverse in part and affirm in part.


On the evening of January 7, 1980 two robberies occurred in the Chicago area in which four people were killed and three others wounded. Witnesses related to the police that two or possibly three young male Hispanics committed the first robbery and that two young male Hispanics committed the second. A light green Ford with primer on one of the doors was used as a getaway car in both crimes. The robberies occurred within a two hour time period and a young girl was abducted by the gunmen during the second robbery.

At approximately 9:00 p.m. Sergeant Mingey of the Chicago Police Department overheard a police radio broadcast that other officers were in pursuit of the suspect vehicle. A second broadcast related that the vehicle had crashed and an officer had been wounded. Officers Mingey, Connor and Sparks drove to the scene of the crash and were subsequently joined by several other officers. When they arrived, they discovered that one of the suspects, later identified as Luis Garcia, had been shot and captured and that the girl had been recovered unharmed. The other male Hispanic, however, escaped on foot. None of the appellees in the instant case was involved in the chase or shooting.

Mingey was told that a license check of the vehicle had been made. The officers testified that they found out that the car was registered to a Llaguno but they could not remember to which Llaguno. The car was in fact registered to a Vilma Llaguno at appellants' address and the registration papers were introduced into evidence. Without attempting to secure either a search or arrest warrant, the officers went back to headquarters, picked up a sledgehammer and a shotgun, and proceeded to the Llaguno residence.

Upon their arrival, Officers Fallon and Troken assumed surveillance of the rear of the residence while Mingey, Connor, Sparks and two or more additional and unknown officers went to the front door. Mingey banged on the door and ordered Gloria Llaguno 1 to open it or have it

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knocked down. As she started to open the door, Mingey pushed his way in, shoving Mrs. Llaguno aside. Mingey and the other officers then rushed in, although Troken and Fallon entered a bit later. All of the officers had their revolvers drawn and Connor had a shotgun. Mingey told the officers to secure the upstairs and downstairs of the house. Guillermo Llaguno was seated at the kitchen table and Mingey ordered him into the living room. As David Llaguno came up from the basement where he had been eating supper, Connor pointed the shotgun at him and searched him. In response to questioning by the officers, David said that he owned the light green Ford but that he had loaned it to a friend. He was thereafter taken into custody where he was held for forty-two hours. During this time he was neither brought before a magistrate nor charged with any crime.

Meanwhile, all the other appellants were forced into the living room and detained there. Carmen, Pauline and Leticia were brought down from the second floor at gunpoint. Although Pauline and Mrs. Llaguno testified that the three girls were searched when they were brought downstairs, the officers denied this. Gloria Jane Llaguno, David Llaguno's wife, and her children were brought up from the basement. Although the house and garage were searched, the extent of the search was disputed.

There was evidence that the officers threatened to shoot some of the appellants if they did not remain quiet and that some force was used. The officers denied making threats although they did admit some use of profanity. 2 It is undisputed that appellants, especially the children, were frightened and upset throughout the incident. 3

As it turned out, the suspect who escaped from the car was shot and killed by other Chicago police officers while appellees were at the Llaguno home. He was later identified as Roger Llaguno, another son of Gloria and Guillermo who did not live at the Llaguno home.

Gloria and Guillermo Llaguno testified that Officers Fleming and Lanners came to their house on three occasions following David's release from custody. They stated that the officers entered their home without their consent and asked to talk to David. The officers admitted that they went to the Llaguno residence to ask David some questions in January and early February of 1980, but denied that they entered the house.

Appellants sought damages under Sec. 1983 alleging that the officers entered their home, arrested David Llaguno, searched their home and persons, used force on them, and detained them, all without probable cause and in violation of their constitutional rights. 4 In a separate count, David Llaguno sought damages for the time he spent in custody following his arrest. Appellants also alleged harassment and common law assault in a pendent claim. The district court denied appellants' motion for a directed verdict at the close of

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all the evidence and judgment for the officers was entered on the jury verdicts.


We first address the appellants' contention that the officers who entered their home on the night of January 7, 1980 lacked probable cause as a matter of law and that therefore their motion for a directed verdict should have been granted. A motion for a directed verdict is properly denied "where the evidence, along with inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions." Hohmann v. Packard Instrument Co., 471 F.2d 815, 819 (7th Cir.1973); see also Richardson v. City of Indianapolis, 658 F.2d 494, 501 (7th Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1442, 71 L.Ed.2d 657 (1982).

In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the Supreme Court, recognizing that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed," id. at 585, 100 S.Ct. at 1379, held that warrantless in home arrests are prohibited in the absence of exigent circumstances. See also Welsh v. Wisconsin, --- U.S. ---- at ---- - ----, 104 S.Ct. 2091 at 2098-2099, 80 L.Ed.2d 732 (1984) (warrantless in home searches and seizures are presumptively unreasonable). It is clear then that in order for the officers' actions to be justified in the instant case, there must have been both probable cause to believe that the person who committed the robberies was in the Llaguno residence and also the situation at time of entry must have amounted to the sort of emergency or danger described in the cases as "exigent circumstances." See Payton, 445 U.S. at 583, 100 S.Ct. at 1378.

Probable cause to effect an arrest exists where the facts and circumstances within the officers' knowledge are sufficient to warrant a prudent person in believing that a particular suspect had committed an offense. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).

It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion, though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause--evidence which would "warrant a man of reasonable caution in the belief" that a felony has been committed--must be measured by the facts of the particular case. The history of the use, and not infrequent abuse, of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause would "leave law-abiding citizens at the mercy of the officers' whim or caprice."

Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 413, 9 L.Ed.2d 441 (1963) (citations and footnotes omitted).

Although in an action under Sec. 1983 whether probable cause exists in a given situation is generally a question for the jury, see Giordano v. Lee, 434 F.2d 1227, 1230 (8th Cir.1970), cert. denied, 403 U.S. 931, 91 S.Ct. 2250, 29 L.Ed.2d 709 (1971), "[w]here there is no conflict in evidence, the court may make its own legal determination of probable cause." Garris v. Rowland, 678 F.2d 1264,...

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