Galvan v. Norberg
| Decision Date | 07 May 2012 |
| Docket Number | No. 11–2319.,11–2319. |
| Citation | 678 F.3d 581 |
| Parties | Manuel GALVAN, Plaintiff–Appellant, v. Thomas NORBERG, et al., Defendants–Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
John P. DeRose (argued), Attorney, DeRose & Associates, Hinsdale, IL, for Plaintiff–Appellant.
Alan L. Farkas, Attorney, SmithAmundsen, LLC, Julian Nunes Henriques, Jr. (argued), Attorney, City of Chicago Law Department, Chicago, IL, for Defendants–Appellees.
Before EASTERBROOK, Chief Judge, and FLAUM and MANION, Circuit Judges.
Manuel Galvan filed a § 1983 action against Chicago police officers Thomas Norberg and Alan Lucas, seeking damages arising from a traffic stop, a vehicle search, and an arrest. Galvan contends that the officers lacked probable cause, whereas the officers maintain that they were following up on an anonymous tip that Lucas had received. After the jury returned a verdict in favor of defendants Norberg and Lucas, Galvan moved for a new trial. Judge Shadur granted the motion but without giving defendants an opportunity to respond. He ruled that the verdict was against the manifest weight of the evidence, reasoning that Lucas had fabricated the tip and that the other officers offered false testimony to support this fabrication. Judge Shadur then recused himself, and the case was reassigned to Judge Chang. Defendants moved to reconsider the new trial order. Judge Chang granted their motion and reinstated the verdict.
We conclude that Judge Chang did not abuse his discretion by reconsidering the new trial grant, a non-final order, and determining that the jury's verdict was not against the manifest weight of the evidence. There was no direct evidence contradicting Lucas's testimony about the tip, there was other evidence to support this testimony, and the jury was able to weigh the inconsistencies and make credibility determinations. We therefore affirm the district court's reinstatement of the verdict in favor of verdict in favor of defendants.
Officer Lucas claims that he was standing near the front desk in the police station on December 30, 2002 when he answered a phone call. The caller asked whether any “narcs” were working, referring to police officers in civilian dress and unmarked cars. After Lucas told the caller that no narcs were available, the caller asked whether a “blue belly,” meaning a general police officer, was available. Lucas identified himself as one, and the caller responded that he had information about the transportation of approximately 200 pounds of marijuana.
When describing the tip at trial, Lucas testified that the informant had stated that “two dudes” would be driving in a “tricked out” and “shiny clean” black pickup truck. The truck would be traveling south on Pulaski Avenue in the vicinity of Irving Park Road during the “time frame of 4 or 5 o'clock in the evening until 6 o'clock or thereabouts.” At trial, Lucas could not remember whether the informant had told him the race or nationality of the truck's occupants, although Lucas had testified in a March 2005 deposition that the informant had said that the men were Hispanic. Lucas testified at trial that the informant had told him that the occupants' ages were “between 25 and 30, 25 or 35, something like that,” though he had testified in his deposition that “[the caller] told me 25 or 30.” Norberg, Lucas's partner, testified at trial that Lucas had told him that there would be two Hispanic males between the ages of 25 and 30 in the pickup truck, although Norberg had previously testified in a deposition that there would be “one to two” men. In his deposition, Norberg stated that he did not know the caller's gender, but at trial he stated that Lucas had told him that the caller was male. Norberg admitted that he testified that the caller was male because Lucas had told him this detail during the week before the trial.
After receiving the tip, Lucas attended roll call at the police station. Lucas told Norberg about the tip, but he could not recall whether he had also told Lieutenant Joseph Porebski, that evening's watch commander. Porebski stated in a signed but undated affidavit that Lucas had approached him with the anonymous tip—that “a black shiny clean trick line pickup truck occupied by two Hispanic males would be traveling southbound on Pulaski near Irving Park Road between 4 p.m. and ... 6 p.m. [and] this pickup truck will be transporting hundreds [of] pounds of marijuana.” At trial, Porebski testified that he remembered being told that “there would be a large movement of marijuana ... in a truck,” as well as other details that he could no longer remember. He remembered thinking that the tip was “fairly good” and worth following up on.
After roll call, Lucas and Norberg began their patrol and set up a moving surveillance. Lucas and Norberg stopped a truck matching the tip's description around 5:30 p.m. According to Norberg's trial testimony, the pickup made an “evasive move from the left lane to the curb lane and also [did] not us[e] his turn signals.” Lucas similarly testified that the pickup “dart[ed] to the far right lane quickly.” Norberg testified that he stopped the truck partially because of this traffic offense and partially because it matched the informant's description. Lucas agreed that the maneuver constituted a traffic offense but believed that they had stopped the truck solely because it matched the description.
Norberg approached the driver's side of the truck, and Lucas approached the passenger's side. Norberg told Manuel Galvan, who had been driving, that he had been stopped for a traffic violation. Norberg testified at trial that he smelled burnt marijuana through the open window, though he did not mention this observation in his earlier deposition or in the case report. Lucas testified that he saw a small bag that looked like a bag of marijuana fly through the air from the driver's side to the passenger's side, landing on the floor of the pickup. Norberg testified that he saw Galvan throw two bags over to the passenger's side. Both officers testified that they then saw the passenger, later identified as Juan Luna, kick two bags against the passenger's side door. The case report, however, stated that Galvan threw the bags to the floor and then Luna kicked the bags over to the driver's side. Both officers asserted that the report's statement was incorrect as to the direction of Luna's kick. At trial, Galvan denied throwing the drugs, but he did not deny that the bags were in the truck or that they belonged to him.
The officers removed both men from the truck and searched it. Lucas testified that they searched the truck because they planned to tow it (pursuant to a police provision requiring the towing of a vehicle believed to contain marijuana), and police procedure requires a search prior to towing. Norberg testified to this reason and added they also searched the pickup because it matched the tip's description. The officers found two bales of plant material wrapped in plastic in the truck bed. Because one of the bags was ripped open, the officers could see the material. Lucas told Norberg, “I think this is reefer.” Lucas also burned and smelled the material, leading him to conclude that the bales were cannabis (as the tip had predicted). Luna and Galvan insisted that the bales were hay from a recent nativity play at St. Wenceslaus Church. The officers nevertheless arrested Galvan and Luna for being in possession of marijuana in the amount of approximately $661,000.
The officers brought the vehicle and the suspected cannabis to the police station. Lucas burned a sample from one of the bales for Lieutenant Porebski and Sergeant Lawrence Casey. At trial, Casey testified that he did not remember whether the bales looked like marijuana, although he had stated in his 2005 deposition that “if I had to guess, I would say ... it looked more like hay than a bale of marijuana.” Casey could not remember whether the burnt sample smelled like hay or marijuana. Porebski testified that he was initially unsure that the bales were marijuana, but he became convinced that they were after consulting a drug reference book and smelling an unlit sample.
Galvan was charged with possession of 100,000 grams of marijuana. Lucas completed the case report that evening. The report referenced the anonymous tip, stating that “Caller told the [officer] that a black pickup truck ... would be in the vicinity of Irving and Pulaski, and that inside the truck would be approximately 200 [pounds] of cannabis.” At trial, Lucas characterized the report as “a summary,” admitting that it did not include other details about the tip.
Seven gray bins containing the plant material and baling twine found in the truck bed were sent to the Illinois State Police Crime Laboratory. Test results revealed that these samples were not marijuana. The results were laid out in a report dated January 2, 2003, which was allegedly faxed to the attention of Officer Norberg on January 3.1 Lucas and Norberg have denied ever receiving this report. Because Galvan could not post bond and the officers were not aware of the negative lab results for the bales, Galvan remained in custody. While preparing for a preliminary hearing, the Office of the State's Attorney received the negative test results. On January 21, the Office filed a writ to bring Galvan from jail and moved to dismiss the criminal charges. On January 23, the motion was granted, and Galvan was released from custody.
Galvan filed a § 1983 action against Officer Norberg, Officer Lucas, Officer Jorge Rivera, Cook County Sheriff Michael Sheahan, and the City of Chicago, alleging federal claims of false arrest and imprisonment, malicious prosecution, and failure to supervise, direct, and discipline; and state law claims of malicious prosecution, intentional infliction of emotional distress, and indemnity....
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