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:
AFFIANT'S TRAINING & EXPERIENCE
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; ...
THE CONFIDENTIAL INFORMANT [the “CI”]
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;
...
PROBABLE CAUSE & INVESTIGATION
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...
