Ochana v. Flores
| Decision Date | 11 April 2002 |
| Docket Number | No. 00 C 7869.,00 C 7869. |
| Citation | 199 F.Supp.2d 817 |
| Parties | John OCHANA, Plaintiff, v. Fernando FLORES and Anthony Schwocher, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Rick M. Schoenfield, Kimberlee Massin, Schoenfield, Massin & Swartzman, Chicago, Illinois, for plaintiff.
Maritza Bonk, City of Chicago, Law Department, Corporation Counsel, Chicago, Illinois, Joseph M. Pollok, City of Chicago — Department of Law, Individual Defense Litigation, Chicago, Illinois, for Fernando Flores, defendant.
Jelena Beuk, City of Chicago, Department of Law, Chicago, Illinois, for Fernando Flores and Anthony Schwocher, defendant.
Currently before the court are: (1) plaintiff's motions in limine, (2) defendants' motion in limine, (3) plaintiff's motion to take judicial notice, (4) defendants' motion for summary judgment, and (5) defendants' motion to strike. For the reasons set forth below, the court (1) grants in part and denies in part plaintiff's motions in limine, (2) grants in part and denies in part defendants' motion in limine, (3) grants in part and denies in part plaintiff's motion to take judicial notice, (4) grants defendants' motion for summary judgment, and (5) denies defendants' motion to strike.
In the late afternoon of June 23, 2000, plaintiff John Ochana ("Ochana") was the driver in the first vehicle stopped southbound on Kostner at the intersection with Irving Park Road, in Chicago, Illinois. Defendants Fernando Flores ("Flores") and Anthony J. Schwocher ("Schwocher") (collectively "the officers"), two Chicago police officers, were in their squad car also southbound on Kostner a few cars behind Ochana's car. The light at the intersection changed, and people started honking their horns. Someone coming northbound on Kostner told the officers that a man was either asleep at the wheel or passed out at the light, blocking traffic.
The officers activated their emergency equipment and pulled up in their squad car next to Ochana's car so that both cars were facing the same direction. Schwocher went over to Ochana's car and observed that Ochana was asleep behind the wheel with his head down. The gear of Ochana's car was in "drive," and his foot was on the brake. Ochana's window was open, and Schwocher attempted to verbally wake him, but Ochana did not respond. Schwocher reached in through the open window of Ochana's car, shifted the gear into "park," and attempted to wake him by shaking him. According to the officers, Ochana did not wake up entirely when shaken, but kept waking up and then nodding off to sleep again. According to Ochana, he woke up and was startled when the officers knocked on the door of his car, but he does not remember the officers putting the car in "park." Ochana did not know how long he was asleep, but thought it was between a second and three minutes. He did not recall whether any cars behind him were honking or whether any cars were passing in the opposite lane of traffic.
The officers told Ochana to get out of his car. According to the officers, they physically helped carry Ochana out of the car; but according to Ochana, he was physically able to get out of the car by himself. The officers escorted Ochana to the rear of the vehicles. Both officers thought Ochana was still groggy at this point.2 He was awake but not alert. His speech was slurred, and the officers could not understand what he was saying. Standing at the rear of Ochana's vehicle, Schwocher asked Ochana to produce his driver's license, and either Ochana pulled out his license or one of the officers reached in his pocket and pulled it out. At this time, Ochana was still less than fully awake.
While Ochana was at the rear of the vehicles with Schwocher, Flores looked into the passenger compartment of Ochana's car and saw a backpack. The parties dispute whether the backpack was open or closed. Flores testified that he saw a clear, unlabeled "Ziplock" bag sticking out more than halfway from inside the open, unzipped backpack, while Ochana testified that his backpack was closed.3 Inside the Ziplock bag was a white powdery substance. The parties dispute whether the substance had yellow flecks in it.4 Flores removed the backpack from Ochana's car. Further inside the backpack, Flores discovered a brown bottle labeled in Spanish. The bottle did not show prescription information, such as a doctor's name, a prescription number, the pharmacy, or a refill. The parties dispute whether the bottle looked like it contained a prescription.
The officers handcuffed Ochana, put him in their squad car, and took him to the police station. Ochana was charged with the following offenses: (1) obstruction of traffic, in violation of City of Chicago Municipal Code, CHI.MUN.CODE § 9-40-130, (2) possession of a controlled substance in violation of 720 ILL.COMP.STAT. 570/402 (1998); and (3) forging or altering a prescription, in violation of 720 ILL.COMP.STAT. 570/406 (1998). Ochana received supervision and was assessed a fifty-dollar fine on the obstruction of traffic charge. The other two charges were dismissed due to a negative laboratory result for the powdery substance in the plastic "Ziplock" bag.
Ochana filed a two-count second amended complaint pursuant to 42 U.S.C. § 1983, alleging: (1) that the officers arrested Ochana without a warrant and without probable cause for possession of a controlled substance and for forging or altering a prescription, and (2) that the officers searched Ochana's vehicle and backpack without probable cause, without a warrant, and without other lawful justification.
Currently before the court are: (1) Ochana's motions in limine, (2) the officers' motion in limine, (3) Ochana's motion to take judicial notice, (4) the officers' motion for summary judgment, and (5) the officers' motion to strike.
As a threshold issue, the court will dispose of the parties' motions in limine and Ochana's motion to take judicial notice, to establish what evidence is admissible and, therefore, properly before this court in support of the summary judgment motion. Both sides have also moved to strike portions of the other side's expert testimony. However, as discussed infra Sect. II.E., the court denies as moot both parties' motions regarding expert testimony.
Ochana has brought seven motions in limine. Ochana's motions in limine seek to exclude the following: (1) reference to Ochana's ethnic background; (2) reference to the officers' subjective beliefs regarding probable cause and intent regarding arrest; (3) reference to the officers having probable cause to arrest Ochana for closely-related offenses; (4) reference to the officers' search of Ochana's car being incident to an arrest; (5) reference to the officers having authority to arrest Ochana for obstructing traffic under the Chicago Municipal Code; (6) any claim that Cynomel, Cytomel, or Synthroid are controlled substances; and (7) certain opinion testimony of John W. Bowman ("Bowman"). Ochana's motion to bar portions of Bowman's expert testimony will be discussed infra Sect. II.E. The officers agreed to Ochana's first motion, so the court grants Ochana's first motion as to Ochana's ethnic background. The officers oppose the remaining six motions.
Ochana moves to bar any reference to the officers' (a) subjective beliefs as to probable cause, and (b) intent to arrest Ochana or subjective beliefs as to when Ochana was arrested. In support, Ochana argues that (a) probable cause is measured by an objective standard of a reasonable person in the position of the arresting officer, not by the arresting officer's subjective belief; and (b) when an arrest occurs is measured by an objective standard of a reasonable person in the position of the suspect, not by the arresting officer's subjective belief or intent regarding arrest.
First, the court disagrees with Ochana as to the officers' subjective belief of probable cause. Ochana is correct that "`[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.'" Arkansas v. Sullivan, 532 U.S. 769, 772, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001) (quoting Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)) (emphasis added). However, "subjective intentions" refer to an officer's subjective motivation for making an arrest, not to an officer's subjective belief of probable cause. See id. On the contrary, an arresting officer's subjective belief that he had probable cause is central in evaluating the propriety of an arrest. "Probable cause for an arrest exists if, at the time of the arrest, the facts and circumstances within the police officer's knowledge were sufficient to warrant a reasonable belief that the suspects had committed, were committing, or were about to commit a crime." Wollin v. Gondert, 192 F.3d 616, 622 (7th Cir.1999). Although Fourth Amendment jurisprudence is objective, not subjective, see United States v. McCarty, 862 F.2d 143, 148 (7th Cir.1988), an officer's subjective perceptions and thoughts may play a part, especially in close cases. See Jones v. Baldwin, No. 97 C 617, 1998 WL 852887, at *2 (N.D.Ill.Dec.4, 1998). For example, the officer's "subjective belief at the time of the arrest that he lacks probable cause may be relevant in determining what facts the officer actually did know at the time of the arrest, and may tip the scale toward finding that the officer lacked probable cause." Id. (quoting McCarty, 862 F.2d at 148 n. 3). Even further, in a § 1983 action such as this when a defense of qualified immunity has been raised, "[e]ven if probable cause is lacking with respect to an arrest, despite an officer's subjective belief that he had probable cause, he is entitled to immunity...
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