BROWN v. CITY OF FORT WAYNE

v. Davidson, No. 1: 04-cv-1571-JDT-TAB, 2007 WL 1202911, at *4 (S.D. Ind. Apr. 23, 2007), where the plaintiff's evidence failed to give rise to an inference that the police officer's belief that he had probable cause was unreasonable (causing retaliation to fail at the causational level), that lack of evidence does not exist here.

Therefore, since an issue of fact exists concerning whether Strausborger had a reasonable belief that he had probable cause to arrest Brown such that he would have arrested her anyway — that is, apart from what she said at the house — this issue remains for trial.

F. Brown's Claims Surrounding Her Arrest by Engelman

1. The Search of Brown's Car and Purse

Brown maintains that the warrantless search of her car violated the Fourth and Fourteenth Amendments. At the time of the search, January 23, 2008, however, it was well established that when a police officer "has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile" including "the contents of any containers found within the passenger compartment." New York v. Belton, 453 U.S. 454, 460 (1981). Under Belton, the search of such containers as "luggage, boxes, bags, clothing, and the like" is permissible when a lawful custodial arrest has been made. Id. at 460 n. 4.

And the fact that Brown had been removed from the car just minutes before does not render the search unlawful. In Thornton v. United States, 541 U.S. 615 (2004), the officer arrested the defendant, handcuffed him, and placed him in the back seat of his patrol car. The officer then searched the defendant's car and found a handgun under the driver's seat. Id. The Fifth Circuit Court of Appeals found the search to be reasonable under Belton because the defendant's car was in his immediate control. Id. at 619. The Supreme Court affirmed, holding "[s]o long as an arrestee is the sort of `recent occupant' of a vehicle such as petitioner was here, officers may search that vehicle incident to arrest." Id. at 623-24.

Although the law on this issue recently changed when the United States Supreme Court retreated from Belton in the case of Arizona v. Gant, 129 S.Ct. 1710, 1723 (2009) (holding that "police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest"), that case was not decided until well over a year after the search at issue here. And, as the Supreme Court specifically noted, "because a broad reading of Belton has been widely accepted, the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding." Gant, 129 S.Ct. at 1723 n. 11.

Although Brown concedes that on January 23, 2008, a lawful arrest would have permitted the type of search Engelman conducted ( see Pl.'s Resp. Br. 4), she argues that under Belton the stop and arrest still had to be lawful and that hers was without probable cause. Given the Court's previous determination that Engelman is entitled to qualified immunity for the arrest, the issue at this point is whether a police officer with a reasonable, but mistaken belief that he had probable cause to arrest Brown, could then proceed to search her vehicle incident to that arrest. Those cases considering the question support Engelman. See, e.g., Kelly v. Sheriff's Dep't, 113 Fed. Appx. 582, 584 (5th Cir. 2004); Jack v. Hansell, No. 6:08-cv-2069-orl-35KRS, 2010 WL 3517040, at *6 (M.D. Fla. Sept. 7, 2010); Merring v. Town of Tuxedo, N.Y., No. 07 Civ. 10381, 2009 WL 849752, at *11 (S.D.N.Y. Mar. 31, 2009) ("[E]ven if the [i]ndividual [d]efendants somehow did not have probable cause, their belief that they did was objectively reasonable, and thus their decision to search the vehicle was also objectively reasonable and protected by qualified immunity.)

It appears that Brown is no longer pursuing the notion that the search violated Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Nevertheless, because Engelman pursued and stopped Brown at the direction of Strausborger based on his objectively reasonable belief that probable cause existed for her arrest, he is thus shielded by the doctrine of qualified immunity for that stop.

As somewhat of an afterthought, Brown barely mentions, and cites no authority, for the allegation that the warrantless seizure of the items from her purse and car ( i.e., three cell phones and a large amount of cash) were without probable cause. Engelman's seizure of multiple cell phones from a person who allegedly had been operating a drug house, and who could easily erase from those phones some important contents, did not violate the Fourth Amendment. Brady v. Gonzalez, No. 08 C 5916, 2009 WL 1952774 at *3 (N.D. Ill. July 2, 2009) (collecting cases).

The cash was also subject to seizure. At the time of the arrest, the officers were investigating drug deals involving Fields where pre-recorded buy money was used (Smith Aff. Ex. A) and it would therefore be probative if some of that money was found in Brown's possession. Consequently, Engelman would have had probable cause under the Fourth Amendment to seize, incident to Brown's arrest, the large amount of cash she was carrying. See e.g., U.S. v. Green, No. NA 02-27-CR H/N, 2003 WL 21991617 at *5 (S.D. Ind. Aug. 12, 2003).

As a result, because Engelman is entitled to qualified immunity on Brown's claim concerning the search of her vehicle and the seizure of the cell phones and cash, summary judgment will be granted in his favor.

2. The Search of Brown's Cell Phone

Defendants also argue that the search of Brown's cell phone was warranted as incident to a valid arrest.

The ancillary issue of the lawfulness of a search of a cell phone incident to a valid arrest is receiving increased attention. See United States v. Murphy, 552 F.3d 405 (4th Cir. 2009); United States v. Finley, 477 F.3d 250 (5th Cir. 2007); Brady, 2009 WL 1952774 at *3; United States v. Valdez, No. 06-CR-336, 2008 WL 360548 (E.D. Wis. Feb. 8, 2008); United States v. Mercado-Nava, 486 F. Supp. 2d 1271 (D. Kan. 2007); United States v. Dennis, No. 07-008-DLB, 2007 WL 3400500 (E.D. Ky. Nov. 13, 2007); Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence, 50 SANTA CLARA L. REV. 183, 200 (2010); Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. REV. 27 (2008).

On those limited occasions when the issue has been reached, courts have consistently found warrantless searches of cell phones to fall squarely within the search-incident-to-arrest exception. See, e.g., Murphy, 552 F.3d at 412; Finley, 477 F.3d at 260; Brady, 2009 WL 1952774 at *3; Valdez, 2008 WL 360548, at *2-3; Mercado-Nava, 486 F. Supp. 2d at 1275-79; Dennis, 2007 WL 3400500, at *7-8.

Of course, even if seizing and examining the phone was a Fourth Amendment violation, Engelman would be entitled to qualified immunity since there is no clearly established law supporting the proposition that it would be an unlawful search and seizure. Brady, 2009 WL 1952774 at *3.

Another problem for Brown is that she does not know who accessed her cell phone and allegedly deleted the photographs she took of the search. Therefore, she cannot show, beyond mere speculation, whether any of the Defendants were personally involved in the alleged deprivation. See Starzenski, 87 F.3d at 879; Rascon, 803 F.2d at 273.

And to the extent she is pointing a speculative finger at Engelman, a reasonable police officer would have believed that he could access the cell phone at the arrest scene in accordance with the Fourth Amendment and existing case law. Therefore, he is entitled to qualified immunity, id., and this part of Brown's case fails as a matter of law.

G. Brown's State Law False Arrest Claim

The doctrine of qualified immunity only applies to Brown's false arrest claim under 42 U.S.C. § 1983 and does not shield Strausborger or Engelman from her common law false arrest claim. Magdziak v. Byrd, 96 F.3d 1045, 1048 (7th Cir. 1996); Benning v. Bd. of Regents of Regency Universities, 928 F.2d 775, 778-79 (7th Cir. 1991). As such, Brown's common law false arrest claim must be analyzed under Indiana state law.

To succeed on her claim, Brown must establish the absence of probable cause for the arrest. McConnell v. McKillip, 573 F. Supp. 2d 1090, 1104 (S.D. Ind. 2008) (citing Garrett v. City of Bloomington, 478 N.E.2d 89, 93 (Ind. Ct. App. 1985)); Row v. Holt, 864 N.E.2d 1011, 1016 (Ind. 2007) (citing Earles v. Perkins, 788 N.E.2d 1260, 1265 (Ind. Ct. App. 2003)). Probable cause for an arrest exists when the facts and circumstances known to the arresting officer would warrant a person of reasonable caution and prudence to believe that the accused has committed or was committing a crime. See Gomez v. Adams, 462 N.E.2d 212, 222 (Ind. Ct. App. 1984); see also N.J. ex rel. Jackson v. Metro. Sch. Dist. of Washington Twp., 879 N.E.2d 1192, 1195 (Ind. Ct. App. 2008).

Moreover, a party bringing a claim of false arrest in Indiana must demonstrate that an officer did not act in good faith when he made an arrest, a standard less stringent than probable cause. McConnell, 573 F. Supp. 2d at 1104 (citing Garrett, 478 N.E.2d at 94-95). In other words, the party must demonstrate that an arrest is "made in bad faith or with an unreasonable belief in the constitutionality of [the officer's] actions." Id. Consequently, a police officer cannot be held liable for false arrest if "the officer believed in good faith that the arrest was made with probable cause and that such belief was reasonable." Garrett, 478 N.E.2d at 93 (citing Brubaker v. King, 505 F.2d 535, 536-37 (7th Cir. 1974)). "The probable cause determination must be made by a jury `if there is room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them.'" Chelios, 520 F.3d at 686 (quoting Maxwell, 998 F.2d at 434); see also Duvall v. Kroger Co., 549 N.E.2d 403, 405-06 (Ind. Ct. App. 1990) ("Probable cause is normally an issue for the jury's determination. However, if the facts are undisputed, probable cause is for the court to determine as a matter of law." (citation omitted)).

As Strausborger and Engelman recognize, Indiana law parallels federal law for false arrest claims. Risner v. City of Crown Point, No. 2:08 CV 100, 2010 WL 3782210, at *12 (N.D. Ind. Sept. 21, 2010) (citing Garrett, 478 N.E.2d 89). Summary judgment is appropriate where the record as a whole reflects the existence of probable cause. Id. (citing Conwell v. Beatty, 667 N.E.2d 768, 775 (Ind. Ct. App. 1996)). Accordingly, since there remains an issue of material fact concerning whether Strausborger had probable cause to order Brown's arrest, that issue remains for a jury to decide.

Concerning Engelman, however, Brown has failed to show that he did not act in good faith in reasonably believing that probable cause existed to arrest her when he did so at the direction of Strausborger. Garrett, 478 N.E.2d at 94. Moreover, to the extent Brown is maintaining that the stop of her vehicle was an arrest, that claim fails because an investigatory stop does not constitute an arrest under Indiana's definition of arrest. Elliott v. Sheriff of Rush County, Ind., 686 F. Supp. 2d 840, 867 (S.D. Ind. 2010) (citing James v. State, 622 N.E.2d 1303, 1307 (Ind. Ct. App. 1993). Accordingly, Engelman is entitled to summary judgment on Brown's false arrest claim.

Strausborger is also not entitled to immunity under the ITCA from Brown's state law false arrest claim. To explain, the law enforcement immunity section of the ITCA, Ind. Code § 34-13-3-3, provides that a "governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from . . . [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." (emphasis added); see also Row, 864 N.E.2d at 1016 n. 4 (noting that the ITCA does not extend to the torts of false arrest and false imprisonment). Therefore, the ITCA does not immunize Strausborger from the state law claim of false arrest.

Finally, "[u]nder the doctrine of respondeat superior, an employer is liable for the acts of its employees which were committed within the course and scope of their employment." City of Fort Wayne v. Moore, 706 N.E.2d 604, 607 (Ind. Ct. App. 1999). Because there is a genuine issue of material fact concerning whether Strausborger had probable cause to order Brown's arrest, and to the extent he was acting within the scope of his employment when he did so, the state law tort claim against the City under respondeat superior survives.

V. CONCLUSION

To summarize, the Defendants' summary judgment motion and supplemental motion (Docket # 18, 42) are GRANTED as to all claims except for the following, to which they are DENIED: Brown's Fourth Amendment claim arising from the destructive search of her house and the seizure of the fur coat and video games; the Procedural Due Process claim with respect to the fur coat, cell phones, and $6,000; the unlawful arrest claim against Strausborger; the First Amendment retaliatory arrest claim; and Brown's Indiana state law false arrest claim against Strausborger and the City of Fort Wayne. Brown's cross-motion for summary judgment (Docket # 25) is hereby DENIED. The Defendants' Motion to Strike (Docket # 28) is MOOT. Summary judgment is GRANTED in favor of Defendant Darrin Strayer on all claims.

This matter is set for a final pretrial conference for December 14, 2010, at 1:00 p.m. Counsel are to confer to consider narrowing the issues and parties in their proposed pretrial order.

SO ORDERED