McGann v. Northeast Illinois Regional Commuter R.R. Corp.

• Decision Date: 04 May 1994
• Docket Number: No. 92-1520,92-1520
• Citation: 8 F.3d 1174
• Parties: , 8 IER Cases 1697, 9 IER Cases 827 Timothy McGANN, John Petrizzo and John Suchor, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION d/b/a Metra/Metropolitan Rail, a body politic and municipal corporation, Fred Leonard, individually and in his official capacity as Commander, Metra Police Force, Donald Carroll, individually and in his official capacity as Captain, Metra Police Force, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1174

8 F.3d 1174

62 USLW 2372, 8 IER Cases 1697, 9 IER

Cases 827

Timothy McGANN, John Petrizzo and John Suchor, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION d/b/a Metra/Metropolitan Rail, a body politic and municipal

corporation, Fred Leonard, individually and in his official

capacity as Commander, Metra Police Force, Donald Carroll,

individually and in his official capacity as Captain, Metra

Police Force, et al., Defendants-Appellees.

No. 92-1520.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 10, 1992.

Decided Nov. 3, 1993.

As Amended on Denial of Rehearing and Rehearing In Banc

May 4, 1994.

J. Reed Millsaps, William D. O'Donaghue (argued), Chicago, IL, for plaintiffs-appellants.

Frederick J. Sperling (argued), Charles H.R. Peters, Judith L. Marrs, Schiff, Hardin & Waite, Chicago, IL, Joann C. Pelka, Raymond M. Coyne, Metra, Chicago Regional Transp. Authority, Chicago, IL, for defendants-appellees.

Before CUDAHY and ROVNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

CUDAHY, Circuit Judge.

On September 4, 1990, police officers of Northeast Illinois Regional Commuter Railroad Corporation d/b/a Metra-Metropolitan Rail (Metra) searched every vehicle leaving its 47th Street facility parking lot. Three of those individuals whose cars were searched brought this § 1983 class action suit against Metra and six Metra police officers alleging that they violated the plaintiffs' Fourth Amendment rights by subjecting the plaintiffs to an unlawful search and seizure. The district court granted summary judgment against the plaintiffs on the grounds that the plaintiffs were not forced to remain in the parking lot and that the plaintiffs consented to the search. Because we conclude that there are genuine issues of fact precluding summary judgment, we reverse and remand.

I.

This class action pursuant to 42 U.S.C. § 1983 was brought by the named plaintiffs Tim McGann, John Petrizzo and John Suchor against Metra and six of its police officers ¹ as a result of a warrantless search performed on September 4, 1990. For simplicity, we will refer to the defendants collectively as Metra. The named plaintiffs and all of the class members are employees of Metra's 47th Street facility who parked their cars in the facility parking lot on the day the search was conducted. The plaintiffs allege that Metra, acting under color of law, violated their Fourth Amendment rights by subjecting them to an illegal search and seizure. ²

The parties agree that the facts of this dispute are to be gleaned from the depositions of Petrizzo, Suchor and McGann, and it was stipulated at the class certification hearing that the class would be bound by their testimony. Although both parties rely on these depositions, each party draws from them dramatically different factual conclusions. A careful review of the record indicates the following. The parking lot at Metra's 47th Street facility is enclosed by a fence and has two entrance gates. Prominently posted at each of these gates is a sign stating:

VEHICLES ENTERING OR EXITING METRA PROPERTY ARE SUBJECT TO

SEARCH BY METRA POLICE.

It is undisputed that the plaintiffs had read the signs and were aware of them upon entering the parking lot on September 4, 1990. It is also undisputed that Metra employees were not required to park in the lot. The plaintiffs could continue to work at the facility without parking there and could also take public transportation to work if necessary. Plaintiffs argue, however, that, due to the high rate of crime in the neighborhood surrounding the facility, parking in the lot was all but a "necessity" if an employee hoped to avoid the risk of property damage and personal attacks.

As the plaintiffs left work on September 4, 1990, they were stopped at the exits by Metra police officers. According to Petrizzo, he was stopped by Metra police, some of whom were wearing Metra police uniforms, just before reaching the exit gate. Petrizzo stated that "the guy that searched our car just asked us to get out," and that "we submitted to that." Petrizzo related that the officer "said he was going to search the car and to open the trunk." Petrizzo conceded that he never resisted the search and that he was never told that he must submit to it. When asked to open the trunk, he did so. He also conceded that nobody ever searched his person. Petrizzo testified, however, that he assumed he could not leave the parking lot, and that, if he had known he could have left the lot without being searched, he would have.

Suchor testified that when he punched out and attempted to leave the facility on the day in question, he was met by a line of approximately fifteen to twenty cars waiting to be searched. Suchor stated that after about 15-20 minutes, he arrived at the half-closed exit gate and was stopped by Metra police. A Metra police officer asked him, "Do you mind stepping out of your car." As he got out, Suchor testified that another officer, without asking permission, entered from the passenger side and proceeded to search his car. Suchor was asked whether he minded opening his trunk, to which he responded that he didn't mind, and opened the trunk for the officers. Suchor attested that he never refused the search, that he was not ordered to submit to the search and that he was never told that he could not leave. Nonetheless, Suchor did indicate that he believed he was not free to leave, stating, "When they stop in front of you, you're [n]ot going to run over a person."

McGann testified that as he approached the exit gate after work on the day in question, he faced a line of approximately ten cars waiting to be searched. At the gate was a Metra police car, two Metra police officers and Mr. Globis, his supervisor. McGann drove up along the side of the line and approached Globis to remind him of an earlier conversation in which McGann informed Globis that he would have to leave work right away in order to get home to watch his child. Globis responded, "As soon as I get done here, I'll send them over to your car." When asked whether he was essentially requesting Globis to move him to the front of the line, McGann responded affirmatively. Later in the deposition, however, McGann clarified that, "I don't know if I actually said the words, 'Can you do me, so I can get out of here.' I just said that, 'I have to get home.' " Pursuant to this discussion, Globis instructed the police officers to search McGann's car next. McGann was approached by a uniformed officer who asked him whether the vehicle was his. McGann told him that it was, and the officer opened the driver's side door and began looking under the seats, behind the seats and in "the little box in the middle." McGann testified that at this point he asked why he was being searched, to which the officer responded, "Just looking." The officer then asked McGann to open the back doors and the trunk, which McGann did. As the uniformed officer searched the trunk, another officer dressed in a shirt and tie told McGann to open the passenger side door, which McGann did. McGann testified that this officer then "ordered me to open the side door." The uniformed officer told the other officer, however, that he had already searched that area. McGann stated that after the search was completed, the uniformed officer took down his name and license number to record that he had been searched. McGann concedes that he did not object to the search, but believed that he did not have a choice. McGann maintains that Globis' comment that he would be next indicated to him that he could not leave until he was searched.

Metra moved for summary judgment arguing (1) that the plaintiffs consented to the search by entering the parking lot with knowledge of the posted signs authorizing the search of their vehicles, (2) that, separately and independently, the plaintiffs consented to the search by their explicit conduct at the time of the search and (3) that at no time did Metra restrict the plaintiffs' freedom of movement.

The district court granted summary judgment against the plaintiffs. Quoting testimony by each of the named plaintiffs to the effect that the gate was not locked and that the plaintiffs were not told they could not leave, the district court held that there was no evidence that the plaintiffs were forced to remain in the parking lot and submit to the search. The court then concluded that the plaintiffs voluntarily consented to the search of their vehicles by their conduct in cooperating in the search. ³

II.

Our review of a grant of summary judgment is de novo. The issue is simply whether the record and all inferences viewed in the light most favorable to the non-moving party reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The plaintiffs contend that the district court erred in granting summary judgment against them because there is a genuine issue whether the plaintiffs voluntarily consented to the warrantless search.

The touchstone of the Fourth Amendment is reasonableness. Florida v. Jimeno, 500 U.S. 248, ----, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991). The Fourth Amendment proscribes only searches and seizures which are unreasonable. Id. Warrantless searches are per se unreasonable unless the search falls within one of "a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Confronted with a warrantless search, it is the burden of the government to prove that the search was reasonable under a particular exception. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). One of these specific exceptions to the warrant requirement is the case of the warrantless search conducted pursuant to consent....