Snider v. Pekny

• Decision Date: 27 September 2012
• Docket Number: Cause No. 4:09–CV–037 JD.
• Citation: 899 F.Supp.2d 798
• Parties: Jesse SNIDER, Plaintiff v. Todd PEKNY, et al., Defendant.
• Court: U.S. District Court — Northern District of Indiana

899 F.Supp.2d 798

Jesse SNIDER, Plaintiff

v.Todd PEKNY, et al., Defendant.

Cause No. 4:09–CV–037 JD.

United States District Court, N.D. Indiana, Hammond Division.

Sept. 27, 2012.

Kathleen M. Sweeney, Charles C. Hayes, Schembs Sweeney Law, Karen Celestino–Horseman, Austin & Jones PC, Indianapolis, IN, for Plaintiff.

Corinne Gilchrist, James S. Stephenson, Ronald J. Semler, Stephenson Morow & Semler, Kyle A. Jones, Norris Choplin & Schroeder LLP, Indianapolis, IN, for Defendants.

MEMORANDUM OPINION AND ORDER

JON E. DEGUILIO, District Judge.

While on a routine nighttime patrol in Carroll County, Indiana, Conservation Officer Todd Pekny heard small-caliber rifle shots coming from what turned out to be Jesse Snider's property. Pekny suspected deer poaching, but his subsequent investigation uncovered a stockpile of firearms, a stash of bomb-making materials, and a marijuana grow operation. The State dismissed all criminal charges after a circuit court judge in Carroll County suppressed all of the evidence uncovered during the search of Snider and his property, but Snider lost his job with the postal service. Snider filed this lawsuit against everyone involved in the investigation, the prosecution, and termination of his employment under 42 U.S.C. § 1983 and state law. See DE 1. Various parties and claims have been dismissed from the case, which is now before the Court on cross motions for summary judgment by Snider and the remaining defendants. See DE 81, 83, 85, 89.

BACKGROUND

Officer Pekny was patrolling a county road south of Flora, Indiana, at 10:30 p.m. on October 27, 2007, when he heard small-caliber rifle fire. See DE 83–2 at 23. He suspected deer poaching, because it was after sunset and not yet firearm season (the season for hunting deer with firearms), and there had been complaints of deer poaching in the area in the past-Pekny himself had made an arrest for nighttime hunting in the same area during the previous deer season 11 months before. See DE 84 at 3; DE 83–2 at 7. He drove around to pinpoint the location of the shots. When he stopped again, he continued to hear shots to his west,¹ and saw a group of people standing around laughing on Snider's property, and saw two people walk from the residence toward a pole barn behind the residence. See DE 83–2 at 6. He drove a short way to the west of Snider's property and heard shots again, this time to his east. Id.

Although he had witnessed no crime on Snider's property at that point (no state or local laws prohibited firing a gun), and there had been no complaints that evening of deer poaching, Pekny believed at the time that the shots were related to wild life poaching violations. See DE 83–2 at 6. He requested that additional officers be dispatched. See DE 82 at 4, ¶ 8; DE 84 at 4, ¶ 6; DE 90 at 2, ¶ 4. Shortly before midnight Sergeant James Bishop from the Flora Police Department and Deputy Jason Dunning from the Carroll County Sheriff's Department arrived to assist, and Pekny explained the situation. DE 83–2 at 6; DE 83–3 at 3. The three officers then drove to Snider's residence and parked their marked vehicles in his driveway. Just before pulling up to the residence, Pekny saw two men walk into the garage. See DE 83–2 at 12. He did not see any guns. Id.

With guns in the low ready position, the officers approached a garage in which they could see two individuals, Snider and Mark Hokema. See DE 90 at 2, ¶ 5. They asked (or ordered, depending on who is telling the story) the men to come out of the garage, and then patted them down to check for concealed weapons. Pekny patted down Snider, and one of the other officers handled Hokema. DE 83–2 at 13. Snider and Hokema provided identification upon request. Id. Pekny asked Snider about the gunshots and what they had been doing. DE 82 at 5, ¶ 14. Snider denied that any shots were fired and explained that he and some friends had been playing paintball in the pole barn—Snider claims he said there were 10 people, while Pekny recalls that he said 12. Id.; DE 90 at 3, ¶ 7.

The details of the next half-hour or so are disputed. Snider claims that he and Hokema were marched at gun point to the pole barn, where he asked the rest of his party to come out. See DE 83–1 at 56. The officers lined everyone up sitting down with their hands behind their heads and their ankles crossed, and patted them down for weapons. Id. While Officer Bishop watched Snider and his guests, the other officers entered the pole barn and began to search inside. Id. at 57. Snider and the others were facing away from the pole barn and could not see what was going on, but Snider could hear the officers going through his things and stood up to protest and told them that they did not have his permission to go through his barn. Id. at 58. He saw the officers look underneath his lawn mower and though several moving boxes. Id. at 62–63. Bishop then handcuffed Snider and sat him back down. Id. at 58. While officers continued to go in and out of the barn searching, they also gave breathalyzer tests to anyone who looked underage. Id. at 59. At some point, most of Snider's guests piled in a car and were allowed to leave. Id. at 59–60. Hokema called a friend and left a few minutes later. Id. at 59. One other guest, Justin Erdie, was detained by police at the residence, but Snider did not know what was taking place there and only found out more details after the fact. Id.

The defendants tell a different story. After they had questioned Snider and Hokema, the officers and Snider and Hokema walked over to the pole barn, about 60 yards away from the garage. DE 83–2 at 13. Snider led them to a large (30 by 80 feet) barn, turned on the lights and told them to go ahead and look in the barn for the others. Id. at 13. Pekny stepped in and looked around, but did not see anyone and stepped out. Id. at 14. He then walked around back of the barn, while Bishop stayed with Snider. Id. At that point, six or seven people walked from behind the barn toward Pekny. Id. Pekny told them to put their hands up to make sure they did not have firearms and sent them to stand near Snider. Id. They were all frisked. Id. Pekny and Deputy Dunning continued to look for other people because they still had not accounted for 12 individuals and were still trying to figure out what was going on. Id. While Bishop stayed with Snider and the others, the other officers went back into the pole barn to see if anyone was hiding in there. Id. Snider did not specifically consent to the second search of the barn, but neither did he object, so Pekny assumed he had consent. Id. at 13. During the course of the second sweep of the barn, Dunning discovered a wooden box in plain view that the officers recognized as a “dug out” that normally contains a pipe and an area that contains marijuana. Id. at 15. Pekny believed that the box was drug paraphernalia and that Snider had violated Indiana Code § 35–48–4–8.3(a)(1) by recklessly possessing drug paraphernalia. Id. at 18.

Around this time, the officers noticed that there was someone in the residence. Id. at 16. Pekny and Sheriff Deputy Jay Schimmel, who had arrived after the officers had lined up the individuals they had found on the property, approached a glass door in the rear of the house and saw a rifle inside the house and spent firearms casings and shells on the back porch. Id. They knocked, and an individual later identified as Justin Erdie came out. Id. Pekny patted down Erdie and noticed what he believed to be two thick bundles of folded dollar bills; when Pekny asked what it was, Erdie pulled both bundles from his pockets and stated that he had about $1,500. Id. at 32 (probable cause affidavit). Erdie said his ID was in his van, so the officers went with him to get it. Id. at 16. When they got there, Erdie threw a glass pipe into the back seat, which the officers discovered contained marijuana when they recovered it. Id. Erdie was placed in handcuffs.

At this point, Pekny believed that there may have been marijuana or other illegal drugs or substances being stored or used in the residence, outbuildings, or vehicle. Id. at 32. He left to obtain a search warrant at about 1:00 a.m. He returned with a warrant authorizing the search of the pole barn and Erdie's vehicle—though notably not the residence or any other outbuildings—for marijuana or other illegal drugs and paraphernalia for using or selling marijuana. Id. at 35 (search warrant). Pekny and Dunning searched the pole barn, and discovered other contraband items, including a “Chinese throwing star” and an owl's foot. See DE 82 at 7, ¶ 25. Dunning, who had experience with explosive devices, also recognized materials that could be used to produce explosive materials, arranged in what appeared to be the stations of a bomb making factory. DE 83–4 at 10.

This new development caused Dunning to call for assistance from the Tippecanoe County Bomb Squad. When the bomb squad arrived, Pekny showed them pictures of what had been found. They told Pekny that they needed an ambulance and the fire department on standby, as well as a medical helicopter, that they also needed to do a safety sweep of all the buildings on the property, and that anyone in the house to the west needed to be evacuated. Id. Pekny informed the bomb squad that the judge had specifically refused to authorize a search of the residence, but was told that it was part of the bomb squad's procedures to account for anyone who might be in the area, in case something goes wrong. Id.

During the safety sweep, the bomb squad discovered an indoor marijuana growing operation, and numerous firearms, unidentified powder, hand flares, and disassembled shotgun shells. DE 83–2 at 37 (second probable cause affidavit). Pekny obtained a second search warrant covering the house, outbuildings, and vehicles on the premises for illegal weapons or explosive materials. Id. at 40 (second search warrant). He returned and executed the warrant.

Snider was...