O'ROURKE v. City of Norman

• Decision Date: 18 July 1986
• Docket Number: No. CIV-85-10-B.,CIV-85-10-B.
• Citation: 640 F. Supp. 1451
• Parties: Michael W. O'ROURKE, Shirley M. O'Rourke and Kathleen O'Rourke, Plaintiffs, v. The CITY OF NORMAN, a Municipal Corporation, Kelvin Winter and Doug McKenzie, individually and in their official capacity as duly authorized law enforcement officers for the City of Norman, and Steve Cain, individually and in his official capacity as police supervisor and a duly authorized law enforcement officer for the City of Norman, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

640 F. Supp. 1451

Michael W. O'ROURKE, Shirley M. O'Rourke and Kathleen O'Rourke, Plaintiffs, v. The CITY OF NORMAN, a Municipal Corporation Kelvin Winter and Doug McKenzie, individually and in their official capacity as duly authorized law enforcement officers for the City of Norman, and Steve Cain, individually and in his official capacity as police supervisor and a duly authorized law enforcement officer for the City of Norman, Defendants.

No. CIV-85-10-B.

United States District Court, W.D. Oklahoma.

June 19, 1986.

Findings of Fact on Record and Conclusions of Law Regarding Rule 11 July 18, 1986.

Judgment on July 18, 1986.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael Salem, Norman, Okl., for plaintiffs.

Louis W. Bullock, Tulsa, Okl., for Michael Salem.

Burton J. Johnson, Looney, Nichols, Johnson & Hayes, Oklahoma City, Okl., H. Lee Schmidt, City Atty., Patricia D. Herron, Asst. City Atty., Norman, Okl., for all defendants.

Judgment on Attorneys' Fees July 18, 1986.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BOHANON, District Judge.

This matter came on for trial before this court on May 13, 1986, through May 29, 1986, and the court, having fully reviewed the exhibits, the testimony of the witnesses and the arguments presented by the parties plaintiff and defendant, now finds and concludes as follows:

Findings of Fact

1. Deborah Boyd is the daughter of the plaintiffs Michael W. O'Rourke and Shirley M. O'Rourke and the sister of the plaintiff Kathleen O'Rourke.

2. On the dates in question in this case, May 14, 1983, through May 16, 1983, there was an outstanding bench warrant for the arrest of Deborah Boyd for contempt of court issued by the district court of Cleveland County, Oklahoma. The warrant arose out of the failure of Deborah Boyd to pay a judgment rendered against her in favor of one Claire J. Robillard, and Boyd's subsequent failure to obey an order to appear and show cause why she should not be found in contempt of court.

3. On May 14, 1983, at approximately 3:00 p.m. Officer R.J. Cook of the Norman Police Department, accompanied by Officer L.D. Moore, received a radio call from the police dispatcher to proceed to the Safeway Store at the corner of Southwest 24th Street and West Main in Norman, Oklahoma, and there contact a woman who had called the dispatcher to report that Ms. Boyd was in the Safeway Store and that there was a warrant for her arrest. The officers were met at the store by Linda Robillard, mother of Claire Robillard, who told them that Boyd had left the store. Robillard then gave the officers a description of the vehicle Boyd was in and also an address where she believed Boyd lived. The officers proceeded to the address, followed by Robillard who was not certain of the exact address but was familiar with the house. The address given to the officers was incorrect, but Robillard was able to point to the correct house: the O'Rourke residence at 2602 Chateau Drive. The vehicle described by Robillard as being used by Boyd was not in the driveway nor was it in the garage of that house, and it appeared to the officers from an external examination of the house that nobody was at home. Officer Moore knocked on the door and rang the doorbell but received no answer. The officers decided that Boyd was not there, but before leaving the scene they told Robillard to contact the police department if she located Boyd again.

4. At the time Officers Cook and Moore visited the O'Rourke house on May 14, Michael O'Rourke was in fact inside the house, accompanied by his son Wesley and witnessed the actions of the officers and Mrs. Robillard.

5. Michael O'Rourke recognized Robillard when she drove up in front of his house with the officers on May 14 and knew from numerous telephone calls made to the O'Rourke residence by both Linda and Claire Robillard that they were attempting to obtain satisfaction of the judgment against Deborah Boyd. Mr. O'Rourke had once told Linda Robillard that the judgment would be satisfied over his dead body.

6. Wesley O'Rourke, on February 11, 1983, received service at the 2602 Chateau address, on behalf of Deborah Boyd his sister, of the citation of contempt in the Robillard case which resulted in issuance of the subject bench warrant for Boyd's arrest when she did not appear and show cause as ordered by the citation.

7. On May 16, 1983, at approximately 9:30 p.m., Linda Robillard called the Norman Police Department to report that Deborah Boyd was at the 2602 Chateau residence. The telephone call was a conference call with Robillard's daughter Claire patched in from a third location. Linda Robillard briefly recounted the events of the previous Sunday, May 14, to the police PBX operator and explained that there was a warrant for the arrest of Deborah Boyd. Linda Robillard was not herself certain that Boyd was at 2602 Chateau at that moment. Claire, however, stated that her source, an unidentified male, was definite that Boyd was there at that time. The PBX operator called the Cleveland County Sheriff's office while the Robillards were still on the line and confirmed that there was a bench warrant for Deborah Boyd and that the address given on the warrant was 2602 Chateau. The PBX operator also determined that the case number on the warrant was SC-82-1952 and that bail was set at $500.

8. After concluding the conversation with Robillard, the PBX operator contacted Officer Kelvin Winter, one of the defendants in this action, told him that there was a bench warrant for him to serve and informed him of the charge, the name of the defendant, the residence of the defendant, the case number and the amount of bail. Winter was also told that an identified person had called to report that Boyd was at the 2602 Chateau residence. At Winter's request, Officer Douglas McKenzie, also a defendant in the present action, agreed to accompany Winter to attempt to serve the warrant.

9. Officers Winter and McKenzie arrived at 2602 Chateau at approximately 10:00 p.m. From the outside, they could see that several lights were on in the house and they heard the telephone ring, saw Mr. O'Rourke answer it and saw other people moving around inside the residence. They knocked on the front door and were greeted by a "white juvenile female," Kathleen O'Rourke. (For reasons unknown, at the trial of this action all three plaintiffs testified that the door was initially answered by the mother, Shirley O'Rourke, and not by Kathleen. The court, however, having had an opportunity to observe the countenances of all the witnesses as they testified, and the various inconsistencies of their testimony, is very unfavorably impressed with the credibility of the O'Rourke family and sees no reason to accept any portion of their story that may conflict with the account given by the defendant officers whose testimony was forthright and candid.) The officers asked Kathleen whether she was Deborah Boyd, and she said no, that Deborah was her sister and was not at home right then. She then went to get her parents. At trial, the officers testified that Kathleen hesitated and displayed some uncertainty or nervousness while talking with them.

Michael O'Rourke came to the door and told the officers that Deborah Boyd was not at home right then though she did live there, had been present earlier, and would return later. He offered to tell Boyd the officers were looking for her the following morning. Officer McKenzie asked O'Rourke if he knew where Boyd was, and O'Rourke answered that she was at work. When asked where Boyd worked, O'Rourke refused to give that information to the officers. McKenzie then advised O'Rourke that it was not wise for him to withhold information concerning Boyd's whereabouts and that he could be arrested if he obstructed the officers. O'Rourke then asserted that he didn't know where Boyd worked. While this conversation was going on, the officers noticed that other people inside the house were peeking around corners at them.

Officer McKenzie then, out of courtesy, asked O'Rourke for permission to search the residence for Boyd, but when permission was refused told him that the officers had a right to make the search whether or not permission was given because they had probable cause to believe Boyd was there. O'Rourke said that he thought he was within his rights to refuse to give the officers permission for the search and asked them if he could call his lawyer and the police department about the matter. O'Rourke invited the officers to come into the house to have a seat while he used the telephone. The officers agreed and followed O'Rourke into the kitchen and dining room area of the house but remained standing during O'Rourke's calls.

O'Rourke was unable to contact his lawyer but did reach and talk with the officers' supervisor, Lt. Steve W. Cain, also a defendant in this action, at the Norman Police Department. Cain already knew that officers McKenzie and Winter were attempting to serve an arrest warrant at 2602 Chateau. O'Rourke described the events that had occurred since the officers had arrived at the house, and then asked Cain if the officers were correct in stating that they had a right to search the house for Boyd. Cain told O'Rourke that if the officers had a warrant for Boyd's arrest and probable cause to believe that she might be in the residence, they did not need a search warrant and did have a right to enter the residence and search for Boyd. O'Rourke then questioned Cain about what was meant by probable cause. While trying to explain the matter to O'Rourke, Cain asked if the officers were where he, Cain, could talk to them. O'Rourke answered "No" though the officers were at that time standing in the same room with him. The conversation concluded with O'Rourke telling Cain that he wanted him to understand that the officers did not have permission to search the residence. Cain immediately thereafter attempted to reach officers McKenzie and Winter by radio...