Carter v. Kuspa

Docket Number16-CV-1430-JPS
Decision Date27 October 2023
CourtU.S. District Court — Eastern District of Wisconsin

J. P Stadtmueller U.S. District Judge


In October 2016, Plaintiff Marvin L. Carter (Plaintiff) filed a pro se complaint under 42 U.S.C. § 1983 alleging that Defendants Laura Crivello (Crivello), William J. Esqueda (Esqueda), John Kuspa (Kuspa) Mickal Chemlick (Chemlick), and Aaron Busche (Busche) violated his Fourth Amendment rights. ECF No. 1; see also ECF No. 61 (operative amended complaint). Because Plaintiff's underlying state criminal case remained ongoing, however, the Court “put a temporary halt to the[] proceedings.” ECF No. 11 at 9 (citing Younger v. Harris, 401 U.S. 37, 53 (1971) and Simpson v. Rowan, 73 F.3d 134, 137 (7th Cir. 1995)).

Six years later, the Court lifted the stay and concluded that Plaintiff's Fourth Amendment claims were not barred by Heck v. Humphrey, 512 U.S. 477 (1994). ECF No. 64 at 7, 9. The Court also reiterated that Plaintiff's case would proceed “on the following claims:”

(1) [A] Fourth Amendment claim [against Busche, Kuspa, Esqueda, and Chemlick] for the unreasonable manner of the February 16, 2016 search; (2) a Fourth Amendment claim for Kuspa and Esqueda's conduct in falsifying statements in the affidavit underlying the search warrant; and (3) a Fourth Amendment Claim for Crivello's submission of the search warrant knowing that the supporting affidavit contained falsehoods.

Id. at 12.

Now before the Court are three sets of Defendants' motions for summary judgment. ECF Nos. 127 (Busche motion), 137 (Chemlick, Esqueda, and Kuspa motion), and 133 (Crivello motion).[1] For the reasons discussed herein, the Court will grant all three motions for summary judgment and dismiss the case with prejudice.


In February 2016, Kuspa, “being first duly sworn on oath,” drafted and signed an affidavit in support of an application for a search warrant.[3]The affidavit stated, in relevant part:

1. That affiant is a state certified law enforcement officer for the Milwaukee Police Department's Narcotics Division currently assigned to the Milwaukee Metropolitan Drug Enforcement Group, and involved in the investigation of narcotics trafficking as well as individuals prohibited from the possession of firearms within the City of Milwaukee;
2. That affiant has worked full-time as a law enforcement officer for the past twenty-three (23) years; ...
6. That affiant's application for a search warrant is based upon information which affiant received from a [CI] who[] identified the location of 5074 N 84th Street, in the City and County of Milwaukee, State of Wisconsin [the “Residence”], as being used for the distribution of heroin; furthermore, this [CI] did also describe the heroin trafficker who resides at [the Residence] who is involved in the trafficking of heroin as being . . . black male, early 30's, 6'3”, 225 lbs, medium build, brown complexion, with short hair who was later positively identified as [Plaintiff] by reviewing a booking photograph ....
7. That affiant believes that the [CI] is reliable based on the fact that the [CI] has conducted in excess of 5 controlled buys for narcotics which evidence of narcotics were recovered and the events of the transactions as reported by the [CI] were verified and corroborated by law enforcement officers. ...
10. That affiant, while basing this affidavit on information provided by a reliable [CI], is also aware that any informant may be considered more credible if he or she has provided reliable information in the past leading to the issuance of a search warrant or to an arrest in establishing a favorable track record for the informant; that affiant is also aware that the absence of these facts does not necessarily deem any information provided by the informant as unreliable; secondly, since affiant was able to corroborate some, if not all, of the [CI's] assertions prior to the application for this search warrant by means of affiant's personal knowledge along with information supplied to affiant by other unrelated and independent sources of information, that this “independent police corroboration of the [CI's] assertions” imparts a degree of reliability to unverified details;
12. That affiant's application for a search warrant is based, in part, upon an investigation initiated by the affiant that includes an interview with a [CI] regarding narcotics trafficking of heroin by an individual identified as [Plaintiff], who is involved in the distribution of heroin, from the [R]esidence . . .;
13. That within the past seventy-two hours (72) affiant searched the person and clothing of the [CI] as well as [CI's] vehicle to make sure that the [CI] had no controlled substances of [sic] monies on their person or in vehicle; that the affiant had given the [CI] $100.00 dollars of pre-recorded U.S. currency;
14. That the affiant did follow the [CI] to [the Residence]; that surveillance officers observed [Plaintiff] arrive at the [R]esidence just prior to the [CI's] arrival and use a key to gain entry into the [R]esidence through the front door; and after the [CI's] arrival surveillance officers observed [Plaintiff] exit out of the [R]esidence of 5074 N 84th Street through the side door located on the south side of the [R]esidence; that surveillance officers observed [Plaintiff] walk up to the [CI] and conduct a hand to hand transaction; that surveillance officers then observed [Plaintiff] walk back to and enter the [R]esidence . . . through the south side door where [Plaintiff] remained; that affiant followed the [CI] to a pre-determined location where the [CI] gave affiant the suspected heroin that the [CI] purchased from [Plaintiff] while outside the [R]esidence . . .; that the [CI] related to affiant the circumstances of the purchase; lastly, that affiant did again search the [CI] and [CI's] vehicle and that the [CI] had no controlled substances or monies on the [CI's] person, vehicle or clothing;
15. That affiant believes, based upon the affiant's conversation with the [CI] as well as affiant's personal observation of the appearance of the substance and the manner in which the substance was packaged, that the aforementioned substance is heroin; ...
34. WHEREFORE, affiant believes, based on the above stated information, that affiant has established the requisite amount of probable cause to believe that evidence of the crime of Possession of a Controlled Substance with Intent to Deliver (Heroin), contrary to Section 961.41(1m)(d) of the Wisconsin Statutes, does not exist at the location as described [above]; that based upon affiant's training and experience, affiant seeks permission to search all persons on the premises because the premises in question is a private residence and drugs or other drug-related contraband may easily be secreted on one's person; furthermore, that the execution of a controlled substance search warrant often reveals the presence of persons other than the residents on the premises and that such persons include, but are not limited to, persons helping with the sale of controlled substances, potential drug buyers, and drug users and it is common to find controlled substances and drug paraphernalia on these persons;
35. This affidavit was reviewed and approved by Assistant District Attorney [] Crivello on February 11th, 2016.

That same day, Crivello notarized Kuspa's signature. At all times relevant to this lawsuit, Crivello served as an Assistant District Attorney for Milwaukee County and as the “captain in charge of prosecution for the High[] Intensity Drug Trafficking Area.” Crivello testified in this case that “reviewing and approving the search warrant affidavit was part of her job”:

The local court rules . . . have, I believe, the fact that the DA's Office is charged with reviewing these documents and that's why . . . we put in that last sentence on the warrants, who the warrant has been reviewed and approved by. And in this particular case it clearly was me. And I did that on February 11th of 2016 as part of my job, which is what I do on a daily basis.... That's part of my role as a prosecutor in Milwaukee County.

Crivello also testified that [b]ecause the photographs and video [of the February 10, 2016 controlled buy] were not part of the search warrant application, they played no role in the probable cause determination and the warrant stands without reliance on either of these items of evidence.”

A state court Commissioner signed the warrant on February 12, 2016. The warrant provided:

Detective [] Kuspa has this day complained (by attached affidavit) to this Court upon oath showing probable cause that on Friday, February 12th, 2016, in the County of Milwaukee, there is now located and concealed in an [sic] upon certain premises . . . occupied by [Plaintiff] ....
1. Heroin - a white or brown chunky powdery or black tarlike substance;
2. Scales, paper packets, plastic bags, and other items used to package heroin for sale;
3. Drug-related paraphernalia, records, and monies
4. Documents, utility bills, keys, cell phones, and other items used to show who is in control of the premises;
5. Weapons and automobiles owned by or associated with the occupants[.]

Law enforcement-including Kuspa, Busche, Esqueda, Chemlick and other agents of the Milwaukee Metropolitan Drug Enforcement Group and Wisconsin High Intensity Drug Trafficking Areas-executed the warrant and performed a search of the Residence on February 16, 2016.[4] Kuspa was the lead officer in the...

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