Bates v. City of Ft. Wayne, Ind.

• Citation: 591 F. Supp. 711
• Decision Date: 19 December 1983
• Docket Number: F 79-175.,No. F 79-173,F 79-173
• Parties: Charles N. BATES and Debra Dunfee Bates, Plaintiffs, v. CITY OF FORT WAYNE, INDIANA, et al., Defendants.
• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana

591 F. Supp. 711

Charles N. BATES and Debra Dunfee Bates, Plaintiffs, v. CITY OF FORT WAYNE, INDIANA, et al., Defendants.

Nos. F 79-173, F 79-175.

United States District Court, N.D. Indiana, Fort Wayne Division.

December 19, 1983.

COPYRIGHT MATERIAL OMITTED

Robert D. Colestock, Fort Wayne, Ind., for plaintiffs.

Gary J. Rickner and James P. Fenton, Barrett, Barrett & McNagny, Fort Wayne, Ind., for defendants.

MEMORANDUM OPINION AND JUDGMENT

LEE, District Judge.

This matter is before the court for a decision on the merits following a bench trial. The case deals with alleged violations of the Fourth and Fourteenth Amendments to the Constitution, and 42 U.S.C. § 1983. This court, having considered the entire record and being duly advised, hereby enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

Findings of Fact

The plaintiffs in this cause are Charles Nathaniel Bates and Debra Dunfee Bates. The defendants are police officers Kenneth Buckmaster, Ron Buskirk, Alan Marquardt, Kim Spielman, Kenneth Gigli, and the City of Fort Wayne, Indiana. Mr. Bates has a long criminal history, dating back to 1959. Mr. Bates, at the time of trial, had two felony convictions. Mr. Bates' reputation in the Fort Wayne community, as perceived by the police officers, was that of being the biggest drug dealer in the Fort Wayne community and being a violent individual. Defendants Buckmaster, Buskirk, Marquardt, Spielman, and Gigli are all police officers with the Fort Wayne Police Department. Defendant City of Fort Wayne employs said defendants as police officers.

Mr. Bates owns a structure in Fort Wayne located at 818-822 East Pontiac Street. The structure appears from the outside to be all one structure. In fact, the structure inside is separated in such a way as to create five separate areas. The structure is a two story wood frame house with a basement and with a connecting overpass to a two story concrete block structure.

At the time of the events in question, Mr. and Mrs. Bates resided in the second floor area of the concrete block structure, denominated by them as 822 East Pontiac. The basement of the structure involved was also known as The Underground, was being rented to Robert Rowles, and was denominated by Bates as 820 East Pontiac Street. The second floor apartment in the part of the structure which is the frame house was being rented as an apartment to Mary Beal and was denominated by Bates as 820½ East Pontiac Street. The first floor of the wood frame portion of the entire structure was also an apartment, rented to Carl Griffin, and was denominated by Bates as 818 East Pontiac Street. Finally, the first floor of the concrete block portion of the structure contained four so-called sleeping rooms with a communal bathroom. This portion of the structure was denominated by Bates as 822½ East Pontiac Street.

The structure has many doors. Several of the doors had mail boxes placed beside them and numbers placed above the doors, matching the denominations placed on the various portions of the structure by Mr. Bates. The only house number visible from the street was 820 and it was the only number the investigating police officers saw. The police officers did not know the seemingly one structure contained five separate living areas, none of which are apparently accessible except by using an outside entrance. The police officers involved had never been inside the structure to know that the structure had been compartmentalized into five separate areas. Police officers attempted to verify the correct legal address of Mr. Bates and of the structure. City utilities informed the officers that the water bill, the only bill city utilities had, showed the address as 820 East Pontiac. The police officers at the time of these events, believed that the address of 820 East Pontiac was the legal address of the entire complex. It was not until the September 1, 1979 search pursuant to a search warrant that the defendant officers became aware that there was more than one address assigned to the structure by Bates and that the structure was compartmentalized into totally separate areas. In all events, the police officers believed, based on Mr. Bates' residing in the structure and his apparent ownership of same, that Mr. Bates had control of the entire structure and used it as one unit.

This case centers around two events, one occurring in the early morning hours of September 1, 1979 and one occurring in the early afternoon of September 4, 1979. A search occurred pursuant to a search warrant on September 1, 1979. A warrantless search of the Bates apartment occurred September 4, 1979. It was also on September 4, 1979 that a warrantless arrest of Charles Bates was made on the preliminary charge of criminal confinement of one Tammy Chipman.

Defendants Marquardt and Spielman were the police officers investigating various events which led to the search of September 1, 1979 and the search and arrest of September 4, 1979. Officer Buckmaster's role was that of an observer on the scene during the September 1, 1979 search. Officer Buskirk read the search warrant to plaintiff on September 1, 1979 and had Mr. Bates in his presence during the September 1 search. Officer Gigli was the officer who arrested Bates on September 4, 1979.

In late August of 1979, a person by the name of James Holliness contacted the Vice and Narcotics Department of the Fort Police Department, stating that it was his belief that his girlfriend, Tammy Chipman, was being held against her will and heroin was being forced upon her by Carl Griffin and Mr. Bates. (Carl Griffin resided in the complex owned by Mr. Bates, located at 820 East Pontiac Street.) The police department told Mr. Holliness that Mr. Holliness should wait a little bit, but that if he still felt Ms. Chipman was being held against her will by Mr. Bates and Mr. Griffin that Mr. Holliness should re-contact the police department and they would assist him. Mr. Holliness did contact the police department again. However, Ms. Chipman was no longer with Mr. Bates and Mr. Griffin, but was with Mr. Holliness. Officers Marquardt and Spielman went to meet with Mr. Holliness and Ms. Chipman.

Ms. Chipman related the story that she had been held against her will and heroin had been forced upon her. She was upset about the incident and she stated she wished to assist the police in apprehending Mr. Bates. It is apparently a common street practice to cultivate new drug business by forcing heroin upon someone, thereby causing that person to become an addict. At that same meeting, Ms. Chipman indicated various houses in Fort Wayne to the police officers as houses where drugs and other narcotics were being sold. Those houses Ms. Chipman pointed out to the officers were houses the police officers had long suspected were houses where drugs and narcotics were sold.

On August 30, 1979, Ms. Chipman was picked up at her place of employment and taken to a vacant lot in an undercover van. A female police officer conducted a strip search of Ms. Chipman. Ms. Chipman was given $50 and driven to a spot a short distance from Mr. Bates' home at 820 East Pontiac Street. Ms. Chipman was strip searched at 9:00 p.m. At 9:05 p.m. she left the undercover van and walked toward the Bates residence. The van was parked on Weisser Park Avenue. Another police vehicle was stationed on Pontiac Street such that the police officer within had a view of several of the various doors leading into the complex located at 820 East Pontiac Street. At 9:15 p.m., Ms. Chipman returned to the undercover van parked on Weisser Park Avenue and gave the officers a tinfoil packet which contained a brownish-white substance which was believed at that time to be heroin. Ms. Chipman returned $10 of the $50 she had received from the officers. Ms. Chipman stated that she had bought the substance in the tinfoil packet from Nathaniel Bates and that Bates told her he had five grams of heroin and that she should come back and buy more. The officers took Ms. Chipman to another place where a female officer again strip searched the subject. That strip search occurred at 9:20 p.m. on August 30, 1979. The tinfoil packet was marked and tagged and placed in a locked security box prior to its testing by the Fort Wayne Police Department lab. An analysis of the foil packet revealed that the substance within was heroin and had an aggregate weight of .23 grams.

The next day, August 31, 1979, another controlled buy was set up by the police officers. Ms. Chipman was picked up at 12:50 p.m. by the officers. She was again strip searched by a female officer which occurred at 1:05 p.m. She was given $70 and taken to the same drop-off point as used the previous day on Weisser Park Avenue. Ms. Chipman walked in the direction of the Bates residence and the undercover police officer stationed on Pontiac Street testified that she did go into the Bates complex. Ms. Chipman returned to the undercover van on Weisser Park Avenue at approximately 1:45 p.m., carrying with her a foil packet containing a brown powdery substance which she related had been sold to her by Mr. Bates. She further related Mr. Bates informed her that the substance was heroin, was very good and he had several more grams of it. Mr. Bates also showed Ms. Chipman a white powdery substance which he claimed was cocaine.

Chipman stated she would sign a search warrant. Chipman was strip searched by a female police officer at approximately 2:00 p.m. at police headquarters. She returned to the officers $20.00 in change. The packet containing the brown powdery substance sold to Chipman by Bates was turned over to Officer Marquardt who carried the packet to the Fort Wayne Police Department lab. Subsequent analysis by the lab showed the substance to be heroin of good quality with an aggregate weight of .28 grams.

Officer Spielman swore out the following "Affidavit for...