Brown v. City of Fort Wayne, Cause No. 1:09–cv–150.

• Citation: 752 F.Supp.2d 925
• Decision Date: 04 November 2010
• Docket Number: Cause No. 1:09–cv–150.
• Parties: Barbara BROWN, Plaintiff,v.CITY OF FORT WAYNE, Teresa Smith, Thomas L. Strausborger, Darrin Strayer, Jean Gigli, Brian Martin, Kimberly Seiss, Darrick Engelman, and Miguel G. Rivera, Defendants.
• Court: U.S. District Court — Northern District of Indiana

752 F.Supp.2d 925

Barbara BROWN, Plaintiff,

v.CITY OF FORT WAYNE, Teresa Smith, Thomas L. Strausborger, Darrin Strayer, Jean Gigli, Brian Martin, Kimberly Seiss, Darrick Engelman, and Miguel G. Rivera, Defendants.

Cause No. 1:09–cv–150.

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

Nov. 4, 2010.

Christopher C. Myers, Ilene M. Smith, Christopher C. Myers & Associates, Fort Wayne, IN, for Plaintiff.Diana Carol Bauer, Kelly J. Pautler, Robert T. Keen, Jr., Carson Boxberger LLP, Fort Wayne, IN, for Defendants.

OPINION and ORDER

ROGER B. COSBEY, United States Magistrate Judge.

I. INTRODUCTION

Barbara Brown is suing the individual Defendants, all police officers for the City of Fort Wayne, under 42 U.S.C. § 1983, claiming they were needlessly destructive when they executed a search warrant at a house she owns and then took items not authorized under the warrant. She also alleges that she was arrested without probable cause for maintaining a common nuisance, a class D felony under Indiana law, which in turn led to an unlawful search of her vehicle and purse. Finally, she argues that in the course of the search of the house and her car, some valuable personal property was taken and not returned. The City of Fort Wayne, the officers' employer, is sued for false arrest under respondeat superior.

Brown's claims have spawned a series of motions: (1) a motion for summary judgment filed by the City of Fort Wayne and Officers Teresa Smith, Thomas L. Strausborger, Darrin Strayer,¹ Jean Gigli, Brian Martin, Kimberly Seiss, Darrick Engelman, and Miguel G. Rivera (collectively, “Defendants”) (Docket # 18); (2) a cross-motion for summary judgment filed by Brown (Docket # 25); and (3) a supplemental motion for summary judgment filed by Defendants (Docket # 42). Also pending is a motion to strike Brown's Supplement to Interrogatory Number 18, seeking to squelch a purported effort by Brown to resurrect an official capacity claim against the City of Fort Wayne. (Docket # 28.) Brown, however, has since abandoned that claim (Mem. in Supp. of Pl.'s Cross Mot. for Partial Summ. J. (“Pl.'s Resp. Br.”) 26), and thus the motion to strike is MOOT.

In sum, the Defendants maintain that all of Brown's claims fail as a matter of law. Brown responds, however, that she is entitled to summary judgment because at least Strausborger and Engelman are liable for the stop of her vehicle and her arrest, and Engelman is liable for the subsequent search of her vehicle and purse.

Ultimately, Defendants' summary judgment motion and supplemental motion (Docket # 18, 42) will be GRANTED in part and DENIED in part. Brown's cross-motion for summary judgment (Docket # 25) will be DENIED.

II. FACTUAL BACKGROUND

Brown owns a house located at 2611 South Lafayette Street (“the house”) which she operates as a homeless shelter under the not-for-profit business title of “The Elija Task, Inc.” ² (Brown Dep. 6, 11). Homeless people would presumably come and go, and even Brown's son, Harvey Fields, Jr., was a resident there in December 2007. (Brown Dep. 9.) Fields's status as a house resident, however, was relatively abbreviated, as by January 2008 Brown had evicted him and only Brown's fiancee, William Trigg, lived there. (Brown Dep. 19; Trigg Dep. 6.)

On January 10, 2008, Detective Teresa Smith investigated an undercover drug deal at a residence on Selkirk Drive in which a confidential informant purchased 7.9 grams of crack cocaine from a person who identified Fields as his supplier. (Smith Aff. ¶ 1.) While the confidential informant was inside, Detective Brian Martin saw a sport utility vehicle (“SUV”) turn into the driveway and then watched its driver, a black male, enter the residence. (Martin Aff. ¶ 2.) A license plate check showed that the vehicle belonged to Fields. (Seiss Aff. ¶ 2.) After the SUV left the Selkirk Drive residence, Martin followed it to 2611 South Lafayette, where Fields was seen entering the house through the back door. (Martin Aff. ¶ 2.) Although Brown had purportedly ejected Fields from the house, she allegedly did not know that Trigg had given him a key. (Trigg Dep. 12–13.)

Nine days later, on January 19, 2008, Fields was arrested in the same SUV. (Rivera Aff. ¶ 2; Smith Aff. Ex. B.) The vehicle contained a handgun and approximately 43.5 grams of crack cocaine. (Rivera Aff. ¶ 2; Smith Aff. Ex. B.)

Sometime later, but before January 23, 2008, Rivera claims he heard a conversation between Fields, who by then was in the Allen County Jail, and Brown, discussing the removal of some narcotics and digital scales from the house. (Rivera Aff. ¶ 3.) Brown denies any such conversation took place, and there is no mention of it in Smith's Search Warrant Affidavit presented to the state court judge on January 22, 2008.³ (Smith Aff. ¶ 4, Ex. B.)

Smith's Search Warrant Affidavit does not mention Brown, and does not specifically allege that any drugs or drug activity were seen at the house. (Smith Aff. Ex. B.) The Affidavit does mention Fields, however, and notes that the SUV's registration lists 2611 South Lafayette Street as his residence. (Smith Aff. Ex. B.) The Affidavit also recites that after the Selkirk Drive deal, Fields drove to the house and entered through the back door. (Smith Aff. Ex. B.) Smith's Affidavit concludes that based on her experience as a narcotics detective, the activities she observed were consistent with drug trafficking. (Smith Aff. Ex. B.) Based on the Affidavit, a Search Warrant issued on January 22, 2008, authorizing a search of the house and the seizure of:

Cocaine and or any derivatives thereof, United States Currency, firearms, and/or weapons, safes and/or lockboxes, items or records associating individuals with this particular residence, records of drug transactions and/or other financial information, and any United States currency used to purchase controlled substances by the Fort Wayne Police Department prior to the execution of this warrant, which constitutes evidence of alleged drug transactions and illegal possession of said controlled substances.

(Smith Aff. ¶ 5, Ex. C.)

The next morning, January 23, 2008, Smith, Strausborger, Gigli, Martin, Seiss, and Engelman executed the search warrant while no one was at the house. (Smith Aff. ¶ 6; Strausborger Aff. ¶ 2; Martin Aff. ¶ 4; Engelman Aff. ¶ 2; Gigli Aff. ¶ 3; Seiss Aff. ¶ 3.) At that time, Brown was at a credit union withdrawing money for roof repairs to the house, as well as for attorney fees for Fields. (Brown Dep. 19; Brown Aff. ¶¶ 6, 17.) Trigg called her there to report the presence of officers at the house. (Brown Dep. 19; Brown Aff. ¶¶ 6, 17.) Brown drove to the house and found the alley blocked by unmarked police vehicles. (Brown Dep. 22.)

Brown went into the house and identified herself as the owner, but no one asked her about any drug activities. (Brown Dep. 23–24; Brown Aff. ¶¶ 7, 25; Smith Aff. ¶ 8; Engelman Aff. ¶ 3.) Brown observed a large man (apparently Rivera) actively involved in the search.⁴ (Brown Aff. ¶ 7; Brown Dep. 26–27.) Apparently Rivera asked who lived at the house, and Brown told him that only Trigg lived there. (Brown Aff. ¶ 25.) Brown also observed officers with masked faces “turning things [such as a sofa] upside down,” one officer “going through [her] cupboards”, and other “things moving.” (Brown Dep. 26–27; Brown Aff. ¶ 7, Ex. 5; Pl.'s Resp. Br. Ex. 5, Req. for Admis. No. 11.)

Allegedly, Brown's anger boiled over and she asked “what the hell [is] going on” and inquired about the authority for the search. (Brown Aff. ¶ 8.) In fact, she loudly protested the search, the turning over of her furniture, and the removal of items from the house. (Brown Aff. ¶ 8.) After learning that she was the owner, Detective Sergeant Strausborger, apparently the supervising officer, read her the Search Warrant and then told her to leave the property. ⁵ (Brown Dep. 23–24; Strausborger Aff. ¶ 3.)

Brown again protested how the search was being conducted and threatened to call her lawyer. (Brown Aff. ¶¶ 8, 9.) At this, Strausborger ordered her off the premises. (Brown Aff. ¶¶ 8, 9.) When Brown protested, Strausborger threatened to arrest her for interfering, to which she replied, “[S]houldn't you read me my rights?” (Brown Aff. ¶ 9.) Strausborger complied with Brown's suggestion, but viewed her as uncooperative and argumentative. (Strausborger Aff. ¶ 3.)

Brown contends she left but that Strausborger started yelling at her. (Brown Aff. ¶ 10.) She returned to her car and remained there awhile. (Brown Aff. ¶ 10.) Strausborger then approached the car and said that if the house was not her residence, he wanted to know where she lived so the officers could go there next to “tear it up.” (Brown Aff. ¶ 10.) Brown closed the car window, which allegedly made Strausborger even angrier. (Brown Aff. ¶ 10.) It was at this point that Brown observed (and photographed with a cell phone) an officer removing a computer, video games, and her fur coat from the house. (Brown Aff. ¶ 12.) After trying to reenter the house, Brown wrote down the license plate numbers of the police cars and then finally drove away. (Brown Aff. ¶ 14; Brown Dep. 30.)

During the search, Smith located in the pocket of a jean jacket in a closet off of the living room area, a large amount of an off-white chunky substance that looked like crack cocaine and later tested as 47.4 grams of the drug. (Smith Aff. ¶ 10.) In the same closet was a box of Smith & Wesson .40 caliber ammunition. (Smith Aff. ¶ 7.) Martin located a Sunbeam digital scale in a storage closet. (Martin Aff. ¶ 5.) Documents belonging to Fields were found throughout the house, including his identification. (Smith Aff. Ex. D; Engelman Aff. ¶ 2.)

Strausborger considered the presence of these items and the fact that Fields, a known drug dealer, may have been trafficking narcotics from the house, and determined that there was probable cause to arrest Brown for the offense of maintaining a common nuisance.⁶ (Stra...