Doe v. Burnham
| Decision Date | 01 October 1993 |
| Docket Number | 92-4158,Nos. 92-3087,s. 92-3087 |
| Parties | Jane DOE, Plaintiff-Appellee, v. William F. BURNHAM, Individually and in his Official Capacity as Sergeant and Todd Niewold, Individually and in his Official Capacity as Police Officer, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Michael K. Fridkin (argued), Linda J. Pauel, Sachnoff & Weaver, Chicago, IL, for Jane Doe in No. 92-3087.
Michael K. Fridkin (argued), Maureen A. Mosh, Ellen B. Katzman, Linda J. Pauel, Sachnoff & Weaver, Chicago, IL, for Jane Doe in No. 92-4158.
Richard T. Ryan (argued), Mark F. Smolens, Flynn, Murphy & Ryan, Chicago, IL, for William F. Burnham.
Before CUMMINGS, COFFEY, and MANION, Circuit Judges.
Officer Todd Niewold arrested Pamela Greenwood 1 for possession of marijuana and took her to the police station. Once there, a female police officer strip searched her. Pamela filed a lawsuit under 42 U.S.C. Sec. 1983, claiming that the strip search violated her Fourth Amendment right to be free from an unreasonable search, and her Fourteenth Amendment right to equal protection. The jury returned a verdict in favor of Pamela on her Fourth Amendment claim. Officers Niewold and William F. Burnham appeal, claiming that the district court improperly denied a peremptory challenge during jury selection, improperly allowed prejudicial remarks during closing argument, and improperly instructed the jury. We reverse and remand.
Pamela was arrested in the parking lot of the Radisson Hotel in Downers Grove, Illinois and later strip searched. Her version of the events leading to her arrest is quite simple. She claims she was arrested because she was a black woman in a predominantly white neighborhood. Pamela's story concerning her arrest begins and ends with this claim. The police officer who arrested her has a more detailed explanation for her arrest. He claims that he arrested Pamela because she possessed marijuana. Following is his more detailed version of the events leading to Pamela's arrest.
On May 5, 1989, Officer Niewold worked the midnight shift (11:00 pm to 7:00 am) for the Village of Downers Grove Police Department. While on routine patrol, he pulled into the Radisson Hotel parking lot and noticed a car with three occupants parked in a well-lighted area. He stopped his marked squad car and walked to the driver's window of the car. The three occupants--Pamela, her fourteen-year-old daughter Ebony, and their friend, Matthew Williams--were having a conversation, and apparently did not notice the police officer. Officer Niewold shined his flashlight into the driver's window, and saw Pamela seated in the driver's seat holding a plastic bag containing what appeared to be marijuana. Officer Niewold also saw a second bag of marijuana on the back seat, next to Williams.
When Pamela noticed the light from the flashlight she "jumped a little bit." She then took the marijuana in her left hand, and reached over to roll down the window with her right hand. She asked Officer Niewold, She then placed the bag of marijuana between her legs, and asked Officer Niewold why he was "hassling" her. Officer Niewold claims that she then passed the bag of marijuana to her daughter Ebony, who was sitting in the passenger seat.
The following facts were not disputed at trial. Officer Niewold ordered the passengers out of the car and conducted a pat-down search. Pamela was wearing tight-fitting jeans. She denied that there was any marijuana in the car. The police recovered three bags of marijuana: one was found on the floor near the passenger seat where Ebony had been sitting, one was found on the back seat near Williams, and one was found in his wallet. Officer Niewold and two police officers who had arrived on the scene as backup then took the three suspects to the police station. Once there, Officer Niewold recommended to his superior, Sergeant William F. Burnham, that Pamela be strip searched. He cited as reasons her uncooperative conduct, her attempts to hide the drugs, and her continued denial of the presence of marijuana. Sergeant Burnham authorized the strip search. A female police officer conducted the actual search. She took Pamela into a small conference room, outside of public view, and had her remove her clothing. The female police officer checked each article of clothing as it was removed. She also visually checked Pamela's body. The search lasted about two minutes; no contraband was found.
During Pamela's trial for possession of marijuana, the prosecutors failed to bring the actual contraband to court. The trial judge dismissed the charges. Pamela then filed a federal action under 42 U.S.C. Sec. 1983, claiming that Officer Niewold and Sergeant Burnham violated her rights under the Fourth and Fourteenth Amendments by strip searching her. Discovery proceeded and the district court scheduled trial.
Before jury selection, the district judge informed the attorneys of her procedure for striking black jurors. She required that attorneys request a sidebar before excluding black members of the venire panel. When jury selection got underway, the defendants made peremptory strikes against two black members of the panel. The judge called counsel to sidebar "to inform counsel that [the court] was disallowing defendants' peremptory strikes against the two black prospective jurors because the defendants had failed to request a sidebar to proffer any race-neutral justification." Doe v. Village of Downers Grove, 834 F.Supp. 244, 247 (N.D.Ill.1992). Pamela's attorney at no time objected to the strikes. Because of the court's ruling, the black jurors the defense intended to strike remained on the jury.
During the trial, Pamela denied that she ever possessed marijuana. Officer Niewold testified that he saw Pamela with marijuana and she attempted to hide it. During closing argument, Pamela's attorney attempted to portray the police officers as liars. He made the following statement: 2 The police officers objected to this statement, but the court overruled their objection. The court provided no limiting instruction advising the jury how to regard the statement.
After both sides had rested, the court instructed the jury. The court provided the following instruction on the Fourth Amendment's standard for reasonableness:
In the first aspect of Plaintiff's claim, plaintiff alleges that the Defendants subjected her to an unreasonable search of her body. The Constitution protects every citizen against unreasonable searches. Law enforcement officers may not strip search an individual for contraband unless the officers have a reasonable basis to believe at the time of the search that the individual is concealing contraband on his or her body. The test of reasonableness requires a balancing of the privacy interest involved in the search and the government's need for conducting the search. Under Illinois statutory law, the police may not strip search a misdemeanor arrestee if there is not a reasonable belief that the arrestee is in possession of a controlled substance. Marijuana is not a controlled substance. Defendants deny that they subjected plaintiff to an unreasonable search of her body.
The defendants objected to the instruction. The court overruled their objection, but expressed concern that the jury "might think I'm directing a verdict" because of the instruction's wording.
The jury returned a verdict for the plaintiff on the Fourth Amendment unreasonable search claim but for the defendants on the Fourteenth Amendment equal protection claim. The police officers then moved for a new trial, and the court granted their motion. The court concluded that it had erred by sua sponte denying the defendants' peremptory challenges of black panel members, even though the plaintiff had never objected to the challenges pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The plaintiff then filed a motion asking the court to reconsider its grant of a new trial. This motion persuaded the court, again, to change its ruling--the court vacated its order granting a new trial and reinstated the judgment entered after the first trial.
The defendants appeal, raising three issues: 1) that the district court improperly applied Batson; 2) that the district court erred in overruling the defendants' objection to the remarks made during closing argument; and 3) that the jury instructions inaccurately depicted the Fourth Amendment reasonableness standard.
We first consider whether the jury instruction on the Fourth Amendment reasonableness standard requires reversal of the verdict. On appeal, our review of jury instructions is limited. See Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1117 (7th Cir.1983). "[W]e review jury instructions only to determine if 'the instructions as a whole were sufficient to inform the jury correctly of the applicable law.' " Patel v. Gayes, 984 F.2d 214, 218-19 (7th Cir.1993) (quoting United States v. Villarreal, 977 F.2d 1077, 1079 (7th Cir.1992), cert. denied, 113 S.Ct. 1350, 122 L.Ed.2d 731 (1993)). Reversal is warranted only if the instruction misguides the jury so much that a litigant is prejudiced. Goldman v. Fadell, 844 F.2d 1297, 1302 (7th Cir.1988). Under these standards, we conduct a two-pronged analysis. First, we determine whether the instruction misstates or insufficiently states the law. If so, we next determine whether the misstatement or deficiency likely confused or misled the jury causing prejudice to a litigant.
The first part of the instruction at issue...
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