975 F.2d 343 (7th Cir. 1992), 91-3746, Albright v. Oliver

Docket Nº:91-3746.
Citation:975 F.2d 343
Party Name:Kevin ALBRIGHT, Plaintiff-Appellant, v. Roger OLIVER, individually and in his official capacity as a police detective with the City of Macomb, Illinois, and City of Macomb, Illinois, an Illinois Municipal Corporation, Defendants- Appellees.
Case Date:September 14, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 343

975 F.2d 343 (7th Cir. 1992)

Kevin ALBRIGHT, Plaintiff-Appellant,

v.

Roger OLIVER, individually and in his official capacity as a

police detective with the City of Macomb,

Illinois, and City of Macomb, Illinois,

an Illinois Municipal

Corporation,

Defendants-

Appellees.

No. 91-3746.

United States Court of Appeals, Seventh Circuit

September 14, 1992

Argued May 20, 1992.

Page 344

John H. Bisbee (argued), Macomb, Ill., for plaintiff-appellant.

James G. Sotos (argued), James G. Sotos, Schirott & Hervas, Itasca, Ill., for defendant-appellee.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and GIBSON, Senior Circuit Judge. [*]

POSNER, Circuit Judge.

The district judge granted the defendants' motion to dismiss the complaint in this constitutional tort case (brought under 42 U.S.C. § 1983) for failure to state a claim, so we take the facts to be as alleged in the complaint, without of course vouching for their truth. The plaintiff is Kevin Albright. The defendants are Roger Oliver, an experienced police detective employed by the City of Macomb, Illinois, the home of Western Illinois University; and the City itself. In March 1987 Oliver hired a cocaine addict, Veda Moore, as an informant. She had come to him seeking protection from a drug dealer who was threatening her because she owed him money. Oliver insisted that she work for him as an undercover informant, in exchange for which he promised her his protection and some pay. Her job for Oliver was to buy cocaine and report the sellers to him. She used the money that he paid her for this information to buy cocaine for her own consumption.

In June she reported having bought cocaine from John Albright, Jr. at a hotel room in Macomb. She turned over the "cocaine" to Oliver; it turned out to be baking soda. Without further investigation, Oliver testified about the transaction before a state grand jury, which returned an indictment against John Albright, Jr. for sale of a "look alike" (alike to an illegal drug, that is) substance in violation of Ill.Rev.Stat. ch. 56 1/2, p 1404(b). Oliver then went to John Albright, Jr.'s home to arrest him, but found that Albright was an elderly, respectable, inoffensive gentleman unlikely to have committed the offense of which Veda Moore had accused him. But in response to Oliver's question did Albright have any sons Albright told him that maybe Oliver was looking for his son John David Albright. So Oliver altered the name on the arrest warrant to John David Albright and went to arrest him--only to discover that he had been in Chicago at the time of the alleged offense.

There was another son, Kevin Albright, a senior at Western Illinois University. Oliver called Moore and asked her whether the man from whom she had bought the baking soda might be Kevin Albright. She said it was he all right. A criminal information was issued charging Kevin Albright with the offense, followed (on October 16, 1987) by an arrest warrant. Learning of the warrant, Kevin Albright turned himself in, acknowledging to Oliver that he had been in Macomb on the date of the alleged offense but denying any involvement in drug trafficking. He was booked and required to post bond; one (mandatory) condition of bond was that he not leave the state without the court's permission. Ill.Rev.Stat. ch. 38, p 110-10(a)(3). At the preliminary hearing, held on January 5, 1988, Oliver testified about Veda Moore's information without however revealing his initial efforts against the other two Albrights, and the judge found probable cause to make Kevin Albright stand trial. But on June 27, before the trial could be held, the circuit court dismissed the information against Kevin Albright on the ground that it failed to state an offense under Illinois law. (We do not know why not; we have not been able to find a copy of the decision.) The prosecution had received media coverage. And Albright had missed a job interview in St. Louis--he says because of the prohibition against his leaving the state, although he did not request the court's permission to leave, as he could have done under the terms of the bond.

The present suit was brought one day short of two years after the dismissal of the prosecution. The complaint states a plausible claim for false arrest. It is true that Kevin Albright was not arrested in the

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conventional sense--he turned himself in. But it is enough that he was booked; that was a seizure of his person within the meaning of the Fourth Amendment. Voytko v. Ramada Inn of Atlantic City, 445 F.Supp. 315, 320, 324 (D.N.J.1978). And probably the "arrest" lacked probable cause. Detective Oliver made no effort to corroborate Veda Moore's unsubstantiated accusation. A heap of baking soda was no corroboration. Her...

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