DocketNumber： Cause No. 4:09-CV-037 JD
Judges： Deguilio
Filed Date： 9/27/2012
Status： Precedential
Modified Date： 10/19/2024
MEMORANDUM OPINION AND ORDER
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
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 pastPekny 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,
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
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)(l) 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
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 charged with nine felonies and three misdemeanors. All charges were dismissed after a Carroll County circuit judge found that the officers search had violated the Fourth Amendment by seizing Snider without a warrant or reasonable suspicion of a crime and by searching his property without a warrant, consent, or exigent circumstances. After an independent investigation into his conduct, based in large part on information provided by state law enforcement officials, the United States Postal Service suspended and then terminated Snider.
Snider then brought this suit, which in addition to claims for Fourth Amendment violations against those involved in the investigation on October 27-28, also brought claims against his supervisors at the United States Postal Service related to his termination, against local media for the coverage of the events, and even against one “Jane Doe” for refusing him unemployment insurance. Judge Van Bokklen dismissed the claims against the postal service employees on February 25, 2010 WL 724506 and May 12, 2010, 2010 WL 1936209. See DE 45, 50.
On October 31, 2011, Snider filed a motion for summary judgment on his claims against Officer Pekny. See DE 81. The same day the Indiana Department of Natural Resources, Officer Todd Pekny, and Daniel Dulin
I. Standard of Review
On summary judgment, the burden is on the moving party to demonstrate that there “is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). That means that the Court must construe all facts in the light most favorable to the nonmoving party, making every legitimate inference and resolving every doubt in its favor. Keri v. Bd. of Trustees of Purdue Univ., 458 F.3d 620, 628 (7th Cir.2006). A “material” fact is one identified by the substantive law as affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine issue” exists with respect to any such material fact, and summary judgment is therefore inappropriate, when “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. On the other hand, where a factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing First National Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). Summary judgment is not a tool to decide legitimately contested issues, and it may not be granted unless no reasonable jury could decide in favor the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In determining whether a genuine issue of material fact exists, this Court must construe all facts in the light most favorable to the non-moving party, as well as draw all reasonable and justifiable inferences in her favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; King v. Preferred Technical Grp., 166 F.3d 887, 890 (7th Cir.1999). But the non-moving party cannot simply rest on the allegations or denials contained in its pleadings. It must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir.2000).
The fact that the parties have cross-filed for summary judgment does not change the standard of review. M.O. v. Indiana Dep’t of Educ., 635 F.Supp.2d 847, 850 (N.D.Ind.2009). Cross-motions are typically analyzed separately under the standards applicable to each. McKinney v. Cadleway Properties, Inc., 548 F.3d 496, 504 n. 4 (7th Cir.2008). Here, the Court will consider the defendants’ motions first, taking any disputed facts in the light most favorable to Snider. The defendants claim that they are entitled to summary judgment on all of Snider’s claims. Because they are correct with respect to all the claims that Snider also seeks summary judgment upon, the Court will not need to consider Snider’s motion.
II. Analysis
After the dismissal of many of the defendants and claims, by either Court order or stipulation, what remains is the core of the dispute. Did Officer Pekny, Deputy Dunning, and Officer Bishop unlawfully invade Snider’s property, detain him without probable cause or reasonable suspicion of wrongdoing while they unlawfully searched his property, and then arrest him for something that did not amount to a crime? While some of the conduct of police officers on Snider’s residence on October 27 and 28 is questionable — enough that a circuit judge in Carroll County suppressed all the evidence — the Court ultimately concludes that the defendants are entitled to
As noted above, the Court will consider the defendants’ motions for summary judgment first. Because the defendant’s are entitled to summary judgment on each claim on which Snider also seeks summary judgment,
A. Federal Claims under § 1983
In Count 1 of his complaint Snider claims that the remaining defendants in this case violated his federal constitutional right to be free from unlawful searches and seizure. Within that single count, Snider identifies several discrete actions that allegedly violated his rights. For purposes of analysis, the Court will consider the following claims separately, taking the facts in the light most favorable to Snider: (1) Was the officers initial entry onto Snider’s property unlawful? (2) Was the initial investigatory detention of Snider reasonable at its inception and in its scope? (3) Did the officers unlawfully search Snider’s pole barn? (4) Did the officers have probable cause to arrest Snider following the search of the pole barn? (5) Were the subsequently obtained search warrants valid? Finally, the Court will address the claim that the officers conspired with each other and others to violate constitutional rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments.
Because the federal claims lie under 42 U.S.C. § 1983, the Court’s analysis must focus not merely on whether there was a constitutional violation, but also whether the defendants in this case may be held hable in a civil action for any violation. Governmental officials are entitled to immunity from civil liability under § 1983 for their actions, with the important qualifier that the officials’ conduct must not violate any clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “Clearly established” means that the contours of the right are sufficiently clear that a reasonable official would understand that his conduct violates the rights in question, and that in light of preexisting law, the unlawfulness of the act is apparent. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). That “preexisting law must dictate, that is, truly compel the conclusion for every like-situated, reasonable government agent that what he is doing violates federal law in the circumstances.” Khuans v. School Dist. 110, 123 F.3d 1010, 1019-20 (7th Cir. 1997) (internal marks omitted). It generally must come from controlling Supreme Court or Seventh Circuit precedent unless an examination of all relevant case law assures the Court that the recognition of the right by controlling precedent is merely a question of time. Denius v. Dunlap, 209 F.3d 944, 950 (7th Cir.2000). It is only in “rare cases where the constitutional violation is patently obvious, the plaintiff may not be required to present the court with any analogous cases, as widespread compliance with a clearly apparent law may have prevented the issue from previously being litigated.” Id. at 951. “When qualified immunity applies, a defendant is not merely entitled to a defense from liability; he is entitled not to stand trial.” Leaf v.
There are two prongs to the qualified immunity analysis: one, whether, when considering the facts in the light most favorable to the plaintiff, he suffered a violation of a constitutional right at all; and, two, whether that right was clearly established, as described above. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). A Court may address either prong first, and need not reach the first if the answer to the second dictates that qualified immunity applies. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The plaintiff bears the burden of demonstrating that a right was clearly established at the time the alleged violation occurred. Kiddy-Brown v. Blagojevich, 408 F.3d 346, 359 (7th Cir.2005).
Finally, before proceeding to discuss the claims, the Court notes that the federal claims under § 1983 in this case implicate only the individual law enforcement officers in their individual capacities. This is because governmental entities may not be held liable under § 1983 under a theory of respondeat superior. Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Governmental entities can thus be held liable only for injury caused by conduct that represents an official policy, whether it be an express policy, an unwritten practice or custom with the force of law, or the decision of an official with final policymaking authority. See Billings v. Madison Metro. School Dist., 259 F.3d 807, 817 (7th Cir. 2001). In this case, the remaining claims involve the decisions and actions of individual law enforcement officers at Snider’s property, and there is no evidence that an official policy by the Carroll County Sheriffs Department, the Carroll County Commissioners, or the Indiana Department of Natural Resources caused any of the alleged injuries. Moreover, the Department of Natural Resources is a state agency, and Congress has not abrogated the State’s sovereign immunity with § 1983, so it may not be sued in federal court. See Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). For these reasons, the Court will grant the defendants’ motions for summary judgment relative to the section 1983 claims against the entity defendants.
1. The Officers Were Lawfully on Snider’s Property.
Snider contends that the officers violated his Fourth Amendment rights the moment they entered onto his private property in the middle of the night. But law enforcement officers are generally allowed to approach a residence to contact its owner using the route that a normal visitor would take. See United States v. French, 291 F.3d 945, 951 (7th Cir.2002). Driveways, sidewalks, and walkways are generally not within the curtilage of the home, and thus not entitled to Fourth Amendment protection. Id. at 953. Even if the driveway in this case were the exception to that rule — and the Court sees no facts that would suggest that it is — Snider has pointed to no precedent that demonstrates that it was clearly established that his driveway was curtilage, despite the general rule to the contrary.
Snider does point to United States v. Jerez, 108 F.3d 684 (7th Cix.1997), to suggest that the officers’ approach to his property (and subsequent investigation, as discussed below) “in the middle of the night are especially intrusive.” Id. at 690. But in that case, officers awakened a suspect in the middle of the night by repeatedly banging on the door and window of his hotel room and then used the groggy
2. The Initial Encounter with Snider Was an Investigatory Detention Supported by Reasonable Suspicion
This issue is the most difficult in the case. The Court has no doubt that Snider was seized when he was ordered, at gun point, to come out of his open garage, and then frisked for weapons. This was no longer, as Pekny and Dulin maintain, a “knock-and-talk” the moment that Snider submitted to their show of authority. The other defendants more reasonably suggest, and the Court agrees, that the initial seizure of Snider was an investigatory stop, and authorized under the parameters of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny.
Officers may detain an individual whom they reasonably suspect of wrongdoing long enough to verify or dispel their suspicion. Terry, 392 U.S. at 21, 88 S.Ct. 1868. The line between simple investigative questioning and an investigative detention is not always clear, but in a case like this where a suspect submits to an officer’s show of authority, it is clearly established law that the officer has engaged in a Terry stop, subject to scrutiny under the Fourth Amendment. See California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); United States v. Johnson, 427 F.3d 1053, 1057 (7th Cir.2005) (holding that a seizure occurred when defendant complied with officer’s command, made at gunpoint, to stop backing away from the door). On the other hand, it is clear that “police officers do not convert a Terry stop into a full custodial arrest just by drawing their weapons or handcuffing the subject.” United States v. Shoals, 478 F.3d 850, 853 (7th Cir.2007).
A Terry stop must be reasonable both at its inception and in its scope. United States v. Ienco, 182 F.3d 517, 523 (7th Cir.1999). It does not require the same probable cause that would be necessary for a custodial arrest, but rather is permissible when the officers have “specific and articulable facts, which, taken together with the rational inferences drawn from them, reasonably warrant the intrusion.” United States v. Rivers, 121 F.3d 1043, 1045 (7th Cir.1997) (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). This reasonable suspicion “requires more than a hunch but less than probable cause and considerably less than preponderance of the evidence.” United States v. Bullock, 632 F.3d 1004, 1012 (7th Cir.2011). If officers have the requisite reasonable suspicion, the degree of the intrusion must be “reasonably related to the known facts.” United States v. Duguay, 93 F.3d 346, 350 (7th Cir.1996).
The first step in the qualified immunity analysis is to determine whether the officers violated Snider’s Fourth Amendment rights in the first place. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. While it is no longer strictly necessary to apply the Saucier steps in order, in this case it makes sense: the second prong of the analysis applies only to the federal claims, and Snider’s state law claim for false imprisonment and false arrest also turn on the lawfulness of the initial encounter.
Whether Pekny reasonably suspected that Snider and his guests were engaged in wrongdoing, or whether he was operating on nothing more than a hunch, is a critical question. One court has already found that the officers had no reason to suspect Snider. As Pekny admits in his deposition, there is nothing inherently illegal about discharging a firearm on ones
The Court finds, however, that Pekny, and by extension Dunning and Bishop, had reasonable suspicion that Snider and his guests were engaged in criminal wrongdoing — specifically deer poaching, or perhaps some reckless behavior with firearms. It is true that for all Pekny knew Snider and his guests were merely engaged in target practice (though the late hour would make that unusual) or dealing with nuisance animals damaging Snider’s property (unlikely, given the number of gunshots). But the fact that there are alternative, lawful, explanations for facts that raise an officer’s suspicion does not make that suspicion unreasonable. In Terry itself, the' suspects’ activities— standing on a street corner and looking in shop windows — were not inherently criminal in and of themselves. Terry, 392 U.S. at 22-23, 88 S.Ct. 1868. Moreover, a Terry stop obviously does not require Pekny to have actually witnessed criminal wrongdoing — had he done so, he would have clearly had probable cause to arrest the suspect, not merely detain him for investigative purposes.
A lone gunshot in a rural area not known for poaching might fall short of the threshold of reasonable suspicion, but here there was considerably more. Pekny had more than just a hunch that deer poaching was afoot. He had himself heard multiple small-caliber rifle shots for a sustained period of time beginning around 10:30 at night. That alone is unusual and suspicious generally. It became significantly more particularized in light of the fact that the shots occurred just before firearm season in an area where there have been complaints of dear poaching in the past and in the immediate vicinity of a confirmed case just the previous deer season. And while there are plenty of innocuous explanations for a group of people standing around laughing in a private field late at night, the same behavior in a location where numerous gunshots had been heard over the course of an hour or more supports an inference that improper deer poaching may have been underway. And at that point, it may have reasonably raised Pekny’s suspicion that the individuals were recklessly discharging firearms and putting themselves and potentially others at risk. Under the totality of the circumstances, including Pekny’s experience investigating deer poaching in the past, the Court concludes that Pekny had reasonable suspicion to warrant more intrusive investigation.
Alternatively, the Court would not conclude, at the second step of the Saucier analysis, that it would have been obvious to any reasonable officer that a brief seizure to allow investigation would violate Snider’s rights under the Fourth Amendment. Snider’s argument against qualified immunity is that his “Fourth Amendment right to be free from unreasonable searches, seizures, and arrest was clearly established at the time.” DE 98 at 12. At first glance, it may seem odd to say that the officers could have acted “reasonably” if they did, in fact, lack a reasonable suspicion of wrongdoing — can one really reasonably act unreasonably? The short answer is that Courts have routinely applied qualified immunity to the Terry stop analysis. E.g., Jewett v. Anders, 521 F.3d 818, 823 (7th Cir.2008) (holding that qualified immunity protects those who make a reasonable error in determining whether there is a reasonable suspicion to conduct a Terry stop). Moreover, the same conundrum exists anytime the Fourth Amendment is implicated because the central inquiry (once the various interpretative doctrines are stripped away) is whether a particular search or seizure was reasonable. The
We have frequently observed, and our many cases on the point amply demonstrate, the difficulty of determining whether particular searches or seizures comport with the Fourth Amendment. Law enforcement officers whose judgments in making these difficult determinations are objectively legally reasonable should no more be held personally liable in damages than should officials making analogous determination in other areas of law.
Id. at 644, 107 S.Ct. 3034 (internal citations omitted). The same reasoning applies to the Terry stop subset of Fourth Amendment searches and seizures.
Beyond a general invocation of the Fourth Amendment standard, Snider provides no closely analogous case law. He does cite Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), for the proposition that warrantless seizures within the home are unreasonable, absent exigent circumstances. It is true that Snider was in his garage when the officers arrived. But the officers did not enter the garage or the residence and instead asked Snider to come out. This does not implicate Payton, which was concerned with protecting the threshold of the home against intrusion without a warrant. See United States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir.1991) (“When the police assert from outside one’s home their authority to arrest a person, they have not breached the person’s privacy interest in the home.”); see also Johnson, 427 F.3d at 1057 (finding a Terry stop when officers ordered an individual to stop backing away from an open door at gunpoint).
Although it is Snider’s burden to come forward with closely analogous precedent, the Court notes that its own research has uncovered no precedent that would inform a reasonable officer that a Terry stop was unreasonable in this case. Most often cases involving gunshots heard do support reasonable suspicion of a crime, though admittedly most of those cases involve gun shots in significantly more densely populated areas, where discharge of a firearm would itself likely be a crime. See, e.g., Shoals, 478 F.3d 850 (finding reasonable suspicion where police were responding to report of gunshots in Fort Wayne, Indiana); United States v. Maher, 145 F.3d 907 (7th Cir.1998) (reasonable suspicion when investigating gunshots in South Bend, Indiana, where suspect holding his front pocket). Moreover, the few cases involving stops of illegal hunting activity have all upheld the stop, though in those cases there were more corroborating facts. See, e.g., United States v. Weatherford, No. 2:11-CR-13, 2011 WL 5408441 (N.D.Ind., Nov. 8, 2011) (reasonable suspicion to suspect firearm hunting out of season based on previous findings of recently spent rifle casings and a suspicious playhouse that seemed too small for bow hunting); Cornelius v. City of Andalusia, 600 F.Supp.2d 1209, 1224 (M.D.Ala.2009) (“If an unfamiliar car enters and exits private hunting property in the evening hours, out of full hunting season, and there is a flashlight shining out of the car window, that justifies an objectively reasonable suspicion that someone is on that property to hunt deer at night, which is illegal regardless of whether the hunter has a right to be on
Having determined that the Terry stop was warranted at its inception, the Court must also consider whether the manner in which the search was conducted was reasonable under the circumstances. Again, Snider points the Court to no cases that would have clearly established that any element of the investigation violated his constitutional right. Given the fact that Pekny heard numerous gun shots coming from the property, it was not unreasonable to believe that Snider or Hoke-ma had a weapon — the lack of a visible rifle does not rule out a concealed handgun — thus justifying a non-invasive pat-down search. See Rivers, 121 F.3d at 1045. Nor was it clearly established that the officers could not demand identification — quite the opposite. See United States v. Jackson, 377 F.3d 715, 717 (7th Cir.2004) (holding that officers may insist that suspect provide identification during a Terry stop). Moreover, Snider’s denial that anyone had fired a gun other than a flare gun or paintball guns contradicted what Pekny heard with his own ears, and thus would have raised, rather than dispelled, a reasonable officer’s suspicion that someone was poaching deer on the property-
Taking the facts in the light most favorable to Snider, the officers continued to detain him at gun point and prolonged the seizure while they sought the 10 other individuals that Snider stated were on the property. In light of Snider’s unsatisfactory explanation for the gunshots, the officers’ awareness (and Snider’s admission) that there were many others on the property, and the fact that whatever gun or guns had been fired were unaccounted for, it was not unreasonable for the officers to secure their presence which was potentially in jeopardy until they had completed their investigation and identified the others present on the property, accounted for any firearms, and either dispelled or confirmed their suspicions of criminal wrongdoing. Courts have permitted far greater intrusions than a protective sweep of the open areas of a suspect’s property. See Leaf, 400 F.3d at 1087 (“The underlying rationale for the protective sweep doctrine is the principle that police officers should be able to ensure their safety when they lawfully enter, a private dwelling.” (citing United States v. Arch, 7 F.3d 1300, 1303 (7th Cir.1993))). It may not ultimately have been necessary for Officer Bishop to keep his gun pointed at Snider the entire time-hindsight is 20/20 and the risks associated with doing otherwise have proven fatal-but as the drawing of weapons is frequently approved during Terry stops, the Court cannot conclude that Bishops conduct was unreasonable, much less that there was a clearly established moment at which Bishop was required to holster his weapon.
Once the officers reached the pole barn and discovered six or seven other individuals, it was not clearly unreasonable to check them for weapons and insist that they remain seated with their hands in view while the search for Snider’s other guests continued (even if Snider had clearly indicated there were 10 people, including himself and Hokema, there would still have been one or two unaccounted for). The officers were outnumbered — especially Bishop against eight or nine, once the other officers moved off to secure the scene while they continued their search— and still did not know who had fired the
Thus, the Court concludes that the officers’ conduct in this case comported with the requirements of the Fourth Amendment. And even if their conduct crossed the constitutional line, it was far from clearly established or obvious that they violated Snider’s federal rights, at least up until the time when Officer Pekny believed that Snider was in possession of drug par■aphernalia and released the other individuals.
S. Officer Pekny and Deputy Dunning are not Entitled to Qualified Immunity on the Claim that They Unlawfully Searched the Pole Bam.
Next, the Court considers whether the officers are entitled to qualified immunity for their search of the pole barn. Snider contends that Pekny and Dunning entered his pole barn twice: first, briefly to see if any of Snider’s guests were in the barn and then again to conduct a more thorough search. The defendants claim that even under Snider’s version of events, both entries into the barn were protective sweeps justified by the need to secure the area and locate anyone who may have been hiding in the open barn, from where they could have launched an attack on the officers. Pekny also argues that the barn was not within the curtilage of Snider’s home and therefore that the entry did not implicate the Fourth Amendment.
We may dispense with the second argument first: the barn was protected by the Fourth Amendment, and this is clearly established under Seventh Circuit precedent. In Siebert v. Severino, 256 F.3d 648 (7th Cir.2001), the Seventh Circuit denied qualified immunity to an officer who entered and searched a suspect’s barn, which was located about 60 feet from their home and outside the curtilage. Id. at 653. The officer argued that the suspect did not have a reasonable expectation of privacy in the barn and that even if he did, that expectation was not clearly established at the time of the search. Id. at 654. The court disagreed on both counts. An “enclosed structure is a typical location for a property owner to engage in private activities. Curious friends and neighbors, much less a government agent with a mission, would be expected to keep out.” Id. The court recognized that the Supreme Court had approved “peering into the barn’s open front,” but refused to extend that permission to actual entry inside. Id. (quoting United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)). The court also found that the officer was not entitled to qualified immunity:
This case seems to fit within the “obvious” scenario — a reasonable state actor would know that he cannot enter a fenced-in, closed structure located within 60 feet of a person’s house without a warrant or some exception to the warrant requirement. But even if not reasonably obvious to Severino, a closely*815 analogous case indicates that his conduct was unconstitutional: his search took place in 1996, and less than three years earlier the Fourth Circuit held that citizens enjoy an expectation of privacy in their barn. Therefore, Severino is not protected by qualified immunity.
Id. at 655 (citing United States v. Wright, 991 F.2d 1182, 1186 (4th Cir.1993)). Based on controlling precedent, Snider had a reasonable expectation of privacy in his barn and a reasonable state actor should have known that.
The next question is whether the search of the barn was permitted by some exception to the warrant requirement. The defendants claim that this was a “protective sweep” necessary for the officers’ protection. Whether such a protective sweep is permitted incident to a Terry stop is an interesting question, but ultimately one the Court need not resolve in this case.
As for Officer Bishop, however, he correctly points out that there is no evidence that he, unlike Pekny and Dunning, was personally involved in the search of the pole barn and did not enter the barn until after the first search warrant had been obtained. While his supervision of Snider and his guests may have enabled the other officers to search without interference, there is no evidence that Bishop directed, countenanced, or even knew of the initial search of the pole barn. As such, he cannot be held liable under § 1983. See Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir.1986) (“In short, ‘[individual liability for damages under section 1983 is predicated on personal responsibility.’ ” (quoting Schultz v. Baumgart, 738 F.2d 231, 238 (7th Cir.1984))). Therefore, Bishop’s motion for summary judgment will be granted relative to the illegal search claim, while Pekny and Dunning’s motions will be denied.
k- The Officers Had Probable Cause to .Arrest Snider After the Search of the Pole Bam.
Having considered the initial seizure of Snider and the search of his property and barn, the Court turns to the claims dealing with the occurrences following from Officer Pekny’s discovery of the wooden “dug out” box in Snider’s pole barn. First, the
To begin, the Court notes that the fact Pekny and Dunning are not entitled to qualified immunity for the earlier warrantless search of the pole barn does not necessarily allow claims against them based on subsequent actions that rely on the dug out box recovered during that unlawful search. This is in part because the “fruit of the poisonous tree” doctrine, which in criminal cases generally directs a court to exclude all evidence “tainted” by an illegal search or seizure, does not apply to civil claims made under § 1983. While the Seventh Circuit has not specifically decided this issue, other circuits and district courts in this circuit have agreed that governmental officials are not liable for arrest or prosecution merely because it is premised on evidence obtained in an unlawful search.
Since they could rely on the item discovered in their search, the officers are entitled to qualified immunity for the continued detention of Snider. Even assuming the state court judge is correct and that Pekny was incorrect that the “dug out” box discovered in the barn was drug paraphernalia and provided probable cause for the arrest, Snider points to no precedent clearly establishing at the time of the arrest that dug out boxes were not drug paraphernalia. Nor does the Court find this result obvious from.the face of the Indiana possession of paraphernalia statute. While the statute does refer only to objects used primarily for introducing con
5. No Evidence Supports Any Other Federal Claims
The defendants argue that they are entitled to summary judgment, for various reasons, on any § 1983 claims arising from the execution of the two search warrants-the first for the pole barn and Erdie’s car and the second for the house and other vehicles — as well as the conspiracy claims. The Court agrees. Snider does not respond to these arguments at all, so it is difficult to tell what his position is regarding these claims, but the Court will address them briefly. As discussed above, the fact that the initial search of the pole barn may have been unlawful does not “taint” subsequent lawful actions by law enforcement agents.
First, the officers did not violate any Fourth Amendment rights when they executed the first search warrant on the pole barn. Officers are entitled to rely on a search warrant in good faith unless they “were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” United States v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); see also Jones v. Wilhelm, 425 F.3d 455, 465 (7th Cir.2005) (citing Leon in the context of a § 1983 civil suit). The Seventh Circuit has explained that a belief is reasonable unless:
(1) courts have clearly held that a materially similar affidavit previously failed to establish probable cause under facts that were indistinguishable from those presented in the case at hand; or (2) the affidavit is so plainly deficient that any reasonably well-trained officer would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.
United States v. Koerth, 312 F.3d 862, 869 (7th Cir.2002) (citations omitted). Here, Pekny was not dishonest in preparing the warrant affidavit. While he indicated (perhaps mistakenly) that he had found drug paraphernalia, he also described the precise item found, which permitted the magistrate to consider the actual evidence, including the dug out box, the marijuana pipe, and the money found on Erdie. Snider points to no cases invalidating a warrant based on a materially similar affidavit. Further, reliance on the warrant was not unreasonable: the Court has already noted that it was not clearly established law at the time that a dug out box was not itself criminal. Moreover, illegal or not, the dug out box reasonably could have provided probable cause to believe there might be marijuana inside or near it. It was not objectively unreasonable for the officers to rely on the warrant.
Second, the officers did not violate any of Snider’s rights when he executed the second search warrant on his resi
Finally, there is no evidence to support Snider’s claims that the defendants who remain in this case conspired with prosecutors or postal service employees to violate any of Snider’s constitutional rights. In fact, it is not clear that Snider has sufficiently alleged a conspiracy, much less put forward enough evidence of one to survive summary judgment. To allege a conspiracy, a plaintiff must:
(1) allege the existence of an agreement;
(2) if the agreement is not overt, the alleged acts must be sufficient to raise the inference of mutual understanding (i.e., the acts performed by the members of a conspiracy are unlikely to have been undertaken without an agreement); and
(3) a whiff of the alleged conspirators’ assent ... must be apparent in the complaint. Indeed, a conspiracy claim cannot survive summary judgment if the allegations are vague, conclusionary and include no overt acts reasonably related to the promotion of the alleged conspiracy.
Amundsen v. Chicago Park District, 218 F.3d 712, 718 (7th Cir.2000) (internal citations and marks omitted). Here, the allegations are conclusionary and Snider has pointed to no evidence in the record that demonstrates an express or implied agreement between the defendants in this case and any other individuals.
B. State Law Claims
The defendants also seek summary judgment on Snider’s state law claims of trespass, false imprisonment, false arrest, and malicious prosecution.
1. Several of Snider’s Claims Are Unavailable.
Some of these claims may be addressed preliminarily based on the immunities and requirements imposed by the Indiana Tort Claims Act. First, summary judgment is appropriate in favor of all the individual officers because governmental employees are not individually liable for acts or omissions unless their actions are “(1) criminal; (2) clearly outside the scope of the employee’s employment; (3) malicious; (4) willful and wanton; or (5) calculated to benefit the employee personally.” I.C. § 34-13-3-5(c). As there is no evidence that any of these exceptions apply, the individual officers may not be held liable.
Second, the Act provides total immunity to employees or entities from liability for losses resulting from the “initiation of a judicial ... proceeding,” I.C. § 34-13-3-3(6), or “[t]he adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment,” id. § 34-13-3-3(8). This means that Snider cannot recover under Indiana law for his claims of malicious prosecution, see Livingston v. Consolidated City of Indianapolis, 398 N.E.2d 1302, 1305 (Ind.Ct.App.1979), trespass and trespass to chattel, see Hebert v. Reynolds, No. 2:07-CV-91-PPS, 2009 WL
Third, Snider cannot recover against the Carroll County Board of Commissioners under a theory of respondeat superior. Indiana courts have held that counties do not have control over the acts of the sheriff, which is an office created by the Indiana Constitution with powers and duties established by the Indiana Legislature, and that a county Board of Commissioners lacks the necessary agency relationship to the sheriff or his deputies to give rise to respondeat superior liability. See Delk v. Board of Commissioners of Delaware County, 503 N.E.2d 436, 440 (Ind.Ct.App.1987).
2. False Imprisonment and Arrest
This leaves only the claims for false imprisonment and false arrest against the Carroll County Sheriff’s Department. “An arrest by a law enforcement officer without probable cause can give rise to civil liability for false arrest under Indiana common law.” The defendants argue that they cannot be held liable for false arrest because there can be no false arrest where an arrest is supported by probable cause. Row v. Holt, 864 N.E.2d 1011, 1016 (Ind.2007). Based on the discussion above, the Court agrees that the officers are entitled to summary judgment on the state law false arrest and false imprisonment claims.
It is unlikely that the officers had probable cause to arrest Snider when they first came on his property, and even if they did it would not have authorized an arrest because deer poaching is only a misdemeanor. See I.C. § 14-22-38-3; see also I.C. § 35-33-1-1(a)(4); Timmons v. State, 734 N.E.2d 1084, 1087 (Ind.Ct.App.2000) (“[A] warrantless arrest is permissible if a misdemeanor is committed in the officer’s presence or, if, at the time of the arrest, the officer has probable cause to believe that the defendant has committed a felony.” (quoting Foster v. State, 633 N.E.2d 337, 346 (Ind.Ct.App.1994))). Nevertheless, as the Court concluded above, the officers did have reasonable suspicion sufficient to authorize a brief, minimally intrusive investigative detention, and their subsequent actions were reasonable in light of the developing circumstances. The initial detention was thus lawful and cannot support a claim for false imprisonment. See Chestnet v. K-Mart Corp., 529 N.E.2d 131, 134 (Ind.Ct.App.1988) (“If a detention is lawful, by definition, it cannot constitute false imprisonment.”); Alexander v. Doe, IP 01-1674-C-K/T, 2003 WL 22244782 (S.D.Ind. Aug. 20, 2003) (“If a defendant has probable cause to arrest the plaintiff or reasonable suspicion to make a Terry stop, or if the plaintiff cannot show an absence of probable cause or reasonable suspicion, then the plaintiffs false imprisonment claim fails.”).
And although the reasonable suspicion that authorized the investigative detention did not authorize a formal, custodial arrest, the officers did at some point have probable cause to arrest Snider, whether for possession of drug paraphernalia, resisting a law enforcement officer, possession of a Chinese throwing star and an owl’s foot, or, eventually, possession of marijuana, explosives, and illegal firearms. Snider’s state law false arrest claim therefore also fails for the same reasons that his false arrest claim under § 1983 fails.
CONCLUSION
Because the officers had a reasonable suspicion that Snider and his guests were engaged in unlawful deer hunting and perhaps other reckless and dangerous behavior potentially associated with repeated gun shots fired at night, summary judg
SO ORDERED.
. Snider claims that Pekny did not hear shots during the time he watched the property, but this is not supported by the record. In the portion of the deposition that Snider cites, Pekny states only that he did not hear gunshots while on the property. See DE 83-2 at 13. Elsewhere, Pekny stated that he heard gunshots to his west from his surveillance position. Id. at 6.
. The claims against Dulin were dismissed with prejudice on January 3, 2012, pursuant to a voluntary stipulation under Federal Rule of Civil Procedure 41(a)(1).
. Snider does not appear to seek summary judgment regarding the search of the pole barn, the lone claim that survives summary judgment, perhaps because there appears to be a material dispute of fact regarding whether Snider consented to the search.
. Protective sweeps of a residence incident to a custodial arrest are permitted by Maryland v. Buie, and the Seventh Circuit has extended the doctrine to cases in which officers are already lawfully in a residence based on exigent circumstances. Leaf, 400 F.3d at 1087. The Court is aware of no holdings regarding a protective sweep of a residence based solely on an investigative stop outside the residence, when officers had no other lawful reason to be in the residence. ' But see Arch, 7 F.3d at 1303 ("In our view, however, the fact that Arch was arrested in the motel lobby rather than his room counsels against a hasty resort to Buie to justify the search [of the room].”).
. See Townes v. City of New York, 176 F.3d 138, 149 (2nd Cir.1999) ("The lack of probable cause to stop and search does not vitiate the probable cause to arrest, because (among other reasons) the fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant.”); Hector v. Watt, 235 F.3d 154, 157 (3d Cir.2000) (“We agree with Townes: 'Victims of unreasonable searches or seizures ... cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution.’ ” (quoting Townes, 176 F.3d at 148.)); Cannon v. Christopher, No. 1:06-CV-267, 2007 WL 2609893, at *5 (N.D.Ind. Sept. 6, 2007) ("While it is true that the officers lacked reasonable suspicion or other cause to stop and detain Cannon's vehicle (at least that is what the state court held), once they did, they obtained sufficient evidence to properly arrest the plaintiffs with probable cause.”); Ferrell v. Bieker, No. L03-CV-27-TS, 2006 WL 287173 (N.D.Ind. Feb. 3, 2006) ("[T]he weight of authority found by the Court holds that the "fruit of the poison tree” doctrine, which requires the exclusion of evidence found as a result of a violation of the Fourth Amendment in a criminal trial, does not apply in a § 1983 action.").
. The Court also notes that even if Officer Bishop were not immune from liability under I.C. § 34-13-3-6, the claims against him would fail because Snider did not serve him proper notice as required under Indiana Code § 34-13-3-8. See Bienz v. Bloom, 674 N.E.2d 998, 1004 (Ind.Ct.App.1996) (When a governmental employee is sued personally the plaintiff is required to comply with the proper notice provisions of the Indiana Tort Claims Act).