Kimbrew v. Evansville Police Dept.

• Citation: 867 F. Supp. 818
• Decision Date: 30 September 1994
• Docket Number: No. EV 91-167-C.,EV 91-167-C.
• Parties: Walter KIMBREW, Plaintiff, v. EVANSVILLE POLICE DEPARTMENT, Officers A. Yeager (1055), J. Evans (1089), D. Erk (1040), Defendants.
• Court: U.S. District Court — Southern District of Indiana

867 F. Supp. 818

Walter KIMBREW, Plaintiff, v. EVANSVILLE POLICE DEPARTMENT, Officers A. Yeager (1055), J. Evans (1089), D. Erk (1040), Defendants.

No. EV 91-167-C.

United States District Court, S.D. Indiana, Evansville Division.

September 30, 1994.

COPYRIGHT MATERIAL OMITTED

Walter Kimbrew, Pendleton, IN, R. Lawrence Daly, Wright Evans & Daly, Evansville, IN, for Walter Kimbrew.

Stephen H. Thomas, Statham Johnson & McCray, Evansville, IN, for Evansville Police Dept., Officer A. Yeager (1055), Officer J. Evans (1089), Officer D. Erk (1040).

MEMORANDUM

BROOKS, District Judge.

This matter came before the Court on a trial without a jury, commencing on July 5, 1994. Having considered the evidence, including all exhibits and depositions admitted into evidence, and having considered the demeanor and credibility of the witnesses, the Court hereby enters its findings of fact and conclusions of law in this memorandum.

Findings of Fact

These findings of fact are developed from evidence that was presented at trial including testimony and exhibits admitted into evidence. This statement is not intended to represent a complete factual determination of this case; further, additional facts will be applied as necessary in the legal analysis below.

Walter Kimbrew and two other individuals were standing in a group between Sycamore Street and Sycamore Park in Evansville, Indiana on the afternoon of November 12, 1989. Prior to this date, Evansville Police Officers Donald Erk, Jr. and Alan Yeager had been advised, directly or indirectly, of the suspicion of illegal drug-related activity being conducted at or near Sycamore Park. While on patrol on November 12, 1989, Officers Erk and Yeager were driving up Sycamore Street towards Sycamore Park when they observed Walter Kimbrew and the other individuals. Officers Erk and Yeager elected to act on the general suspicion of the area and approached the individuals under the guise of questioning them about a suspect in an unrelated matter. While approaching, the Officers saw one of the individuals toss something to the ground which they immediately suspected to be marijuana. Officers Erk and Yeager immediately requested the three individuals to place their hands on the car in an effort to gain control of the situation.

At some point during the confrontation Officers Erk and Yeager had requested backup, such help arrived in the form of Officers John Evans and Stephen Green. Upon arrival, Officer Evans was instructed to pat down "the one on the end," who in this case happened to be Walter Kimbrew. Aware of the nature of the transaction and otherwise suspecting one of the individuals may have a weapon, Officer Evans conducted a frisk for weapons on Walter Kimbrew. Feeling items contained in Walter Kimbrew's front pockets but unsure of their identity, Officer Evans reached his hands into Walter Kimbrew's front pockets and emptied the contents onto the hood of the police car. Upon observation Officer Evans found the contents to include two small clear plastic baggies containing a white powdery substance. One of the baggies was hidden from immediate view in a cellophane cigarette package. Walter Kimbrew insisted the substance was, in fact, baking soda.

Suspecting the white powdery substance to be cocaine or other controlled substance, Officer Evans requested that the substance be field tested. At some point between Sycamore Park and booking at Vanderburgh County Jail in Vanderburgh County, Indiana, the white powdery substance found in Walter Kimbrew's possession field tested positive as containing a controlled substance. Walter Kimbrew was then arrested for possession of a controlled substance and detained in Vanderburgh County Jail for the same. An independent judicial determination of probable cause of Walter Kimbrew's November 12, 1989 arrest was made in Vanderburgh Superior Court, Misdemeanor Traffic Division, on November 13, 1989.

Pursuant to established procedure, the white powdery substance was placed in the evidence drop box at the Evansville Police Department later in the day of November 12, 1989. Frank Wilkins, Evansville Police Department Evidence Custodian, retrieved the white powdery substance from the evidence drop box on November 13, 1989. On November 28, 1989, Frank Wilkins transported the evidence from the Evansville Police Department headquarters located in downtown Evansville to the Indiana State Police Laboratory located approximately seventeen miles away. Testing commenced on the substance December 1, 1989. On December 4, 1989, the completed testing yielded a result indicating the suspected substance was free from any controlled substances. Frank Wilkins then picked up the evidence and associated test results for the return trip to Evansville Police Department headquarters on December 11, 1989. All charges in the matter were dropped and Walter Kimbrew was released from custody January 8, 1990.

Conclusions of Law

Plaintiff Walter Kimbrew filed a claim in this Court alleging defendants deprived him of constitutionally guaranteed rights in violation of 42 U.S.C. § 1983. This Court has jurisdiction to rule on this matter pursuant to 28 U.S.C. § 1331.

Section 1983 provides in pertinent part as follows:

Every person who, under color of any statute, ordinance, regulation, custom or usage of any State of Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States, or other person, within the jurisdiction thereon, to the deprivation of the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.

42 U.S.C. § 1983. Notably, § 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Albright v. Oliver, ___ U.S. ___, ___, 114 S.Ct. 807, 811, 127 L.Ed.2d 114, 122 (1994) (internal quotations omitted); Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432, 85 L.Ed.2d 791 (1985). "When government officials abuse their offices, `actions for damages may offer the only realistic avenue for vindication of constitutional guarantees.'" Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982)). Presently, Plaintiff Walter Kimbrew alleges the Defendants deprived him of rights guaranteed him by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. Specifically, Walter Kimbrew claims his Fourth Amendment rights were contravened by an unauthorized search and seizure; Walter further contends his rights to due process were violated by an unreasonable term of incarceration without cause.

Search and Seizure

The threshold determination for any § 1983 action is whether there has indeed been a constitutional deprivation. See Patrick v. Jasper County, 901 F.2d 561, 565 (7th Cir.1990). Addressing first the alleged Fourth Amendment violation, it is this Court's reading of the current state of Fourth Amendment jurisprudence that the initial stop and frisk were proper but the subsequent search and seizure were not.

The Fourth Amendment, made applicable to the States by way of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), serves to guarantee "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ..." U.S. Const. amend. IV. While "no right is held more sacred, or is more carefully guarded," Union Pacific Railway Company v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the Supreme Court has stressed that "what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures." Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960). The searches and seizures prohibited are those "`conducted outside the judicial process, without prior approval by judge or magistrate ... subject only to a few specifically established exceptions.'" Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S.Ct. 409, 410, 83 L.Ed.2d 246 (1984) (per curiam) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)). One notable exception was recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where the Supreme Court held that

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and dangerous; where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries; ... he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment ...

392 U.S. at 30-31, 88 S.Ct. at 1884-85. Momentary seizures of individuals by law enforcement for the reasons indicated are commonly known as "Terry stops." See Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); United States v. Adebayo, 985 F.2d 1333 (7th Cir.1993). Terry has been applied to make lawful under the Fourth Amendment "a semi-arrest ... if but only if the officers had a `reasonable suspicion supported by articulable facts' that the persons stopped were engaged in criminal activity." United States v. Ornelas-Ledesma, 16 F.3d 714, 716 (7th Cir.1994) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)).

The pat down, or frisk, incident to the Terry stop similarly is lawful only if it is "for the protection of the officer and others in the area to conduct a carefully limited search of the...