Johnson v. Petersen

• Decision Date: 10 May 1983
• Docket Number: No. 82-C-609.,82-C-609.
• Parties: Larry JOHNSON, Plaintiff, v. Donald PETERSEN and Rudy Smirnov, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

563 F. Supp. 672

Larry JOHNSON, Plaintiff, v. Donald PETERSEN and Rudy Smirnov, Defendants.

No. 82-C-609.

United States District Court, W.D. Wisconsin.

May 10, 1983.

B.J. Hammarback, Spring Valley, Wis., for plaintiff.

Thomas M. Fitzpatrick, La Crosse, Wis., Warren Lee Brandt, Prescott, Wis., for defendants.

MEMORANDUM AND ORDER

SHABAZ, District Judge.

Before the Court is a motion for summary judgment by defendants Petersen and Smirnov, the other original defendants having been dismissed by previous orders.

Jurisdiction is based on 28 U.S.C. § 1343, plaintiff alleging that the defendants violated his constitutional rights under color of state law in violation of 42 U.S.C. § 1983. The complaint alleges violations of the Fourth and Fourteenth Amendments to the Constitution, false arrest and false imprisonment and pendent state claims.

FACTS

Plaintiff Larry Johnson is a resident of Pierce County, Wisconsin and was, during the times pertinent to the complaint, the owner of a house located in the Town of Oak Grove, Pierce County, Wisconsin.

Defendant Donald Petersen, at the time pertinent to the complaint, was Chief Deputy Sheriff for Pierce County, Wisconsin. Defendant Rudy Smirnov, at the time pertinent to the complaint, was an investigator for the Pierce County Sheriff's Department.

The house owned by plaintiff in Oak Grove was subjected to a search on March 31, 1981 by officers of the Pierce County Sheriff's Department, including the defendants, pursuant to a search warrant signed by Pierce County's Circuit Judge, William E. McEwen.

The warrant was issued on the basis of information provided in an affidavit executed by defendant Petersen, who then advised the other officers engaged in the search of its contents. The warrant covered not only the Oak Grove house owned by the plaintiff, but also another residence in nearby Clifton owned by one John McEnroe, and directed the seizure of controlled substances.

The search of the Oak Grove house produced evidence of criminal conduct, specifically marijuana in bags, seed and other paraphernalia used for growing and using marijuana, together with more than 50 marijuana plants ranging in size from six to sixteen inches in height.

The affidavit supporting the search warrant alleged that the house in Oak Grove was owned by plaintiff but rented to John McEnroe.

At the time of the execution of the warrant, three persons were found within the Oak Grove house, including plaintiff's brother, but not including McEnroe nor plaintiff. Possessions belonging to plaintiff, including mail addressed to him, were found in a bedroom located just inside the door of the house. These materials were moved into the house sometime prior to the search in anticipation of plaintiff moving into the house after McEnroe's lease expired on April 1. (Whether or not marijuana was found in the room containing plaintiff's possessions is a disputed fact.)

Plaintiff arrived at the house some time after the beginning of the search, advised defendant Smirnov that he owned the house and was in the process of moving into it. Plaintiff was placed under arrest by Smirnov. (The most compelling evidence suggests that Smirnov arrested plaintiff and then sought confirmation of the act by speaking with defendant Petersen and District Attorney Warren Brandt by telephone. There is some dispute about the sequence of events, although the Court does not believe the dispute to concern a material fact.)

Plaintiff was transported to the Pierce County jail on the evening of March 31; released on bond on April 2; and appeared before a judge on April 3. (There is some dispute as to who was responsible for transporting plaintiff to jail. The fact is not material.)

Plaintiff was charged in a multi-count, multi-party criminal complaint filed on April 3, 1981 with conspiracy to possess and deliver, and possession of a controlled substance; and with maintenance of a house used for the distribution and manufacture of marijuana. These charges constituted felonies under Wisconsin law. All charges against the plaintiff were subsequently dismissed on the motion of the Pierce County District Attorney.

Further facts, particularly concerning the contents of the warrant and Petersen's affidavit, are contained in the body of the following opinion.

MEMORANDUM

There can be no doubt that no cause of action under 42 U.S.C. § 1983 arises simply because a person who is later shown to be innocent is arrested and jailed. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Only arrest and detention without probable cause; that is, outside of constitutional standards, creates liability. Bur v. Gilbert, 415 F.Supp. 335 (E.D. Wis.1976).

Plaintiff was arrested without a warrant and the arrest was executed by Officer Smirnov, who can be credited with the following pieces of information at the time he arrested plaintiff:

1. A controlled substance had been found in a residence owned by the plaintiff;

2. There were indications that plaintiff either lived in the residence or at least spent enough time there to have knowledge of the fact that marijuana was present.¹ Mail addressed to plaintiff had been seen in plain sight in one of the bedrooms. The extent of the illegal operation in the home leaves no doubt that a frequenter would have been aware of the activity;

3. Plaintiff admitted his ownership of the property;

4. State law forbids possession of marijuana and also forbids the intentional maintenance of a dwelling frequented by users of controlled substances or used for manufacturing, keeping or delivering such substances.

The Court must conclude that the above information, while not conclusive, does establish probable cause for plaintiff's arrest. As stated in Spinelli v. U.S., 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); "Only the probability, and not a prima facie showing of criminal activity, is the standard of probable cause." Probable cause is the equivalent of "reasonable grounds to believe." U.S. v. Melvin, 596 F.2d 492 (1st Cir.), cert. denied, 444 U.S. 837, 100 S.Ct. 73, 62 L.Ed.2d 48 (1979), citing Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978). The issue of probable cause is "to be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training." U.S. v. Davis, 458 F.2d 819, 821 (D.C. Cir.1972).

Defendant Smirnov had reasonable grounds for his belief that a crime had been committed and that the plaintiff was guilty of the crime. There was sufficient indication that plaintiff was, or should have been familiar enough with the activities that he must have known of the marijuana growing in the house. There was also sufficient indication that, even if plaintiff was not living in the house, he was frequenting the house he owned with a frequency that belied ignorance of what was going on.

Plaintiff seems to suggest that his protestations at the time of arrest should have put Officer Smirnov on notice that there was sufficient doubt of plaintiff's guilt to destroy probable cause. There is no logic to this point of view. Although plaintiff may, in the abstract, be a responsible citizen, a police officer cannot be expected to change his mind because a person suspected of a crime claims his innocence. Even if the information provided by one who is suspected of a crime should create some doubt in the mind of the arresting officer, it is certainly reasonable for the officer to carry on with the arrest and investigate further at a later time.

It would not have been sufficient for Officer Smirnov to depend solely on plaintiff's ownership of the property. Nor did any of the other facts known to Smirnov in isolation establish probable cause. However, it was reasonable for Smirnov to infer plaintiff's guilt (for purposes of arrest) from the totality of the information known to him. He need not ignore the forest by concentrating on the trees.

Finally, plaintiff suggests that, because some of the information which Smirnov relied upon was a fruit of an illegal search, the arrest was illegal. While the Court does not concede that the search was illegal (a point discussed later in this opinion), Smirnov's liability cannot be established in this way. It is well established that an arrest executed by a facially valid arrest warrant is legal insofar as the arresting officer's liability is concerned. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Pritz v. Hackett, 440 F.Supp. 592 (W.D.Wis.1977). The obvious implication of this holding is that an arresting officer is allowed to rely in good faith on a magistrate's decision that probable cause exists. The officer's liability is thus defeated. However, plaintiff was arrested without a warrant. But defendant Smirnov's liability must also be defeated by his reliance on evidence obtained through a facially valid search warrant. He did nothing to obtain the warrant (assuming it was obtained illegally) and therefore must be allowed to rely on the evidence obtained in establishing probable cause for arrest. Assuming that evidence obtained illegally taints an arrest based on that evidence,² it does not mean that the officer who arrests the aggrieved party should be liable for false arrest. If the evidence obtained illegally, but with a search warrant, establishes (or helps to establish) probable cause, the arresting officer is in precisely the same position as one who acts on a facially valid arrest warrant.

Therefore, defendant Smirnov's motion for summary judgment must be granted.

The basis of defendant Petersen's liability is somewhat different. It is his action in obtaining the search warrant (and which ultimately led to the arrest) that must be the basis of his liability.

Plaintiff does not contend that Petersen's affidavit contained falsehoods; he merely alleges that the information does not constitute...