Rosado v. Mora

• Decision Date: 17 September 2019
• Docket Number: Case No. 17 C 2210
• Parties: ANGEL ROSADO, Plaintiff, v. OFFICER ABRAHAM MORA, OFFICER PAUL HEYDEN, OFFICER ROBERTO DELCID, OFFICER JONATHAN APACIBLE, OFFICER SCOTT KORHONEN, and THE CITY OF CHICAGO, a municipal corporation, Defendants.
• Court: U.S. District Court — Northern District of Illinois

ANGEL ROSADO, Plaintiff, v. OFFICER ABRAHAM MORA, OFFICER PAUL HEYDEN, OFFICER ROBERTO DELCID,OFFICER JONATHAN APACIBLE, OFFICER SCOTT KORHONEN,and THE CITY OF CHICAGO, a municipal corporation, Defendants.

Case No. 17 C 2210

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

September 17, 2019

Judge Joan H. Lefkow

OPINION AND ORDER

Angel Rosado has sued the defendant Chicago police officers and the City of Chicago under 42 U.S.C. § 1983 and several state law theories in connection with his 2015 arrest for drug possession and ensuing prosecution. After the court dismissed several counts of the complaint (dkt. 70), the following counts remain:

I. § 1983 - Unreasonable seizure under the Fourth Amendment

II. § 1983 - Unreasonable pretrial detention under the Fourth Amendment

III. § 1983 - Unreasonable search under the Fourth Amendment

IV. § 1983 - Fabrication of evidence in violation of the Due Process Clause

V. Malicious prosecution under Illinois law

VI. Conspiracy to commit malicious prosecution

IX. Indemnity (against the city)

All defendants have moved for summary judgment. (Dkt. 85.) For the reasons below, their motion is granted in part and denied in part.¹

BACKGROUND²

I. Surveillance

On September 1, 2015, two teams of officers of the Chicago Police Department worked as part of a gang investigations unit. (Dkt. 110 ¶¶ 3-10.) Officers Abraham Mora, Jonathan Apacible, and Vincent Baldassano served as the surveillance team, patrolling different parts of Chicago in separate unmarked cars. (Id. ¶¶ 11, 13.) Officers Scott Korhonen, Roberto Delcid, and Paul Heyden served as the enforcement team, waiting together in an unmarked squad car to assist as needed. (Id. ¶¶ 11, 14.)³

Mora testified that he watched the corner of Diversey and Monticello, which he knew to be a frequent site of gang and drug activity. (Dkt. 86 ¶ 12.)⁴ Mora says he observed a Hispanic man, who he later learned was plaintiff Angel Rosado, engage in a hand-to-hand transaction, conceal an object the size of a golf ball in his front right pants pocket, and enter the driver's seatof a white van. (Id. ¶¶ 15-16.) No other officers observed these events. (Id. ¶ 19.) Rosado denies that he participated in any hand-to-hand transaction. (Dkt. 110 ¶ 15.)

Mora radioed to all other officers in the unit that he had observed a suspected drug transaction. (Dkt. 86 ¶ 20.) Rosado concedes that the remaining officers heard and had no reason to doubt Mora's report. (Id. ¶ 25.) Mora described the suspect and the white van. (Id. ¶ 22.) Mora followed the van but lost sight of it by the time it reached the expressway. (Id. ¶ 24.) Apacible picked up the trail, following the van from the expressway until it reached its final destination in Rosado's driveway. (Id. ¶¶ 23-24.) He then called in the enforcement team. (Id. ¶ 24.)

II. Stop, Search, and Arrest

The enforcement team arrived in front of Rosado's house. (Id. ¶ 29.) Rosado exited the driver's seat of the white van, then Heyden pointed his gun at Rosado, who immediately raised his hands in the air, prompting Heyden to re-holster his gun. (Id. ¶¶ 28, 31.) Video of the arrest shows that Heyden's gun was drawn for less than two seconds. (Dkt. 116-2 at 1:10-1:12.) Heyden then approached Rosado, gun holstered. (Dkt. 86 ¶ 33.) Korhonen and Delcid approached the van's passenger, Rosado's brother Alexander Soliveras.

Here, the parties' accounts of events diverge, and a security-footage video of the incident neither confirms nor forecloses either account. The defendants claim that Heyden approached Rosado and saw a clear plastic bag sticking out from Rosado's pocket. (Id. ¶ 33.) Heyden handcuffed Rosado, who announced that he had cocaine in his pocket. (Id. ¶¶ 34-35.) Heyden seized the bag, which later forensic testing would confirm contained cocaine and marijuana. (Id. ¶¶ 36, 46-48.) Heyden arrested Rosado and reported to all other officers that he found cocaine and marijuana on Rosado. (Id. ¶ 36-37, 41.) Heyden, Korhonen, and Delcid each searched Rosado's van. (Id. ¶ 39.) The three officers then transported Rosado to the police station, whereRosado explained that he supplemented his income by selling drugs. (Id. ¶ 45.) The officers deny asking Rosado to become an informant. (Dkt. 124 ¶ 10.)

On Rosado's account, Heyden handcuffed and frisked Rosado and found nothing, because Rosado never possessed any illegal drugs. (Dkt. 110 ¶ 35.) Rather, Korhonen and Delcid seized cocaine and marijuana from Soliveras. (Id. ¶ 28.) But after the officers discovered that Rosado was on supervised release after a conviction for murder, they collectively decided that they could use Soliveras's drugs as leverage to pressure Rosado to become an informant. (Dkt. 116 ¶ 10-12.) The officers thus threatened to arrest Rosado on false drug charges unless he provided information about gang activity. (Id.) When Rosado refused (in part because he had no information to give), the officers arrested him and transported him to the police station. (Id. ¶ 11.) Mora and Apacible then demanded anew that he provide information, and Mora falsely charged him with drug possession when he refused again. (Id.)

A reasonable jury could accept Rosado's version of events at trial. The officers respond that Rosado's factual disputes are not genuine because he later confessed to possessing drugs. (See dkt. 87 at 21-22.) But viewing the evidence in the light most favorable to Rosado, as the court must, Rosado never confessed. Rosado denies admitting to possessing and dealing drugs on the night of the arrest. (Dkt. 110 ¶¶ 34, 44.) The officers cite Rosado's recorded statements to his wife from jail and prison, such as "You didn't do nothing, it was me, babe," "I did fuck up," "they did [rat me out], I know for a fact. I think I know who it was too," and "Motherfuckers, you know motherfuckers sic[] those police on me like that. It had to be somebody watching or somebody that was at the crib." (Dkt. 86 ¶¶ 71-72, 76, 78.) Reasonable jurors need not interpret these statements as confessions, though many might. At this stage, the court cannot reject Rosado's account simply because he made statements that some jurors might find inconsistent.Similarly, although Soliveras made indisputably inconsistent statements about the provenance of the drugs, compare dkt. 96 at 19:7-11 ("Q: So you didn't know about the cocaine or the cann[abis]? . . . THE WITNESS: No."), with id. at 103:4-5 ("Look, the drugs were mine. . . ."), those inconsistencies speak to his credibility. Although the court is skeptical that a reasonable jury would find Soliveras credible, it cannot usurp the jury's function. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) ("On summary judgment a court may not make credibility determinations . . . .") (citations omitted).

III. Ensuing Legal Proceedings

Mora signed criminal complaints against Rosado for unlawful possession of cocaine and cannabis. (Id. ¶ 49.) A grand jury later indicted Rosado for possession with intent to deliver both substances. (Id. ¶ 50.) Rosado moved to quash his arrest and suppress all evidence collected from the scene. (Id. ¶ 51.) The Circuit Court of Cook County granted his motion, finding that (1) Mora's observations at Diversey & Monticello did not provide enough suspicion for Heyden to conduct a Terry stop; and (2) that Heyden did not see the plastic bag in plain view, instead finding it after he unreasonably seized Rosado. (Id. ¶¶ 52-54.) The Cook County State's Attorney declined to appeal the suppression order and dismissed the charges nolle prosequi. (Id. ¶ 55.)

Rosado also faced supervised release revocation proceedings following his arrest. At the time of his arrest, Rosado was on supervised release following a murder conviction. (Id. ¶ 63.) Rosado was charged with violating his release for (1) violating any criminal statute; (2) using or possessing drugs; and (3) being in places where drugs are illegally sold, used, or distributed. (Id. ¶ 64.) The Illinois Prisoner Review Board found probable cause for all three violations. (Id. ¶ 65.) Mora supplied information in support of the revocation charges. (Dkt. 116 ¶ 17.)Eventually, the Board found no violation because "the state [did] not meet its burden of proof." (Id. ¶ 23.)

Rosado spent several months in custody awaiting trial and pending his supervised-release revocation hearing. (Id. ¶ 16; see dkt. 116-3 at 1 (noting Rosado was in Illinois Department of Corrections custody as of June 2016, nine months after arrest).)

LEGAL STANDARD

Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986). To determine whether any genuine fact issue exists, the court must look beyond the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed. R. Civ. P. 56(c). In doing so, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769 (2007).

ANALYSIS

I. Stop, Frisk, and Vehicle Search (Counts I and III)

The Fourth Amendment, effective against the states through the Fourteenth Amendment, prohibits unreasonable searches and seizures. U.S. Const. amd. IV, XIV. Ordinarily, a seizure, such as an arrest, is "'reasonable' only if based on probable cause to believe the individual has committed a crime." Manuel v. City of Joliet, 137 S. Ct. 911, 918, 197 L. Ed. 2d 312 (2017). "A police officer has probable cause to arrest a person if, at the time of the arrest, the 'facts and circumstances within the officer's knowledge . . . are sufficient...