Opinion
IP 99-0276-C-M/S
August 14, 2001
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiffs Robert and Judy Willits filed this lawsuit against Wal-Mart Stores, Inc., Wal-Mart employees Jerry Biggs ("Biggs") and Pat Barker ("Barker"), and several members of the Indiana State Police (the "ISP"), including Michael Morris ("Morris"), David Phelps ("Phelps"), Toni Dodson ("Dodson"), Daniel Moore ("Moore"), Mike Garrett ("Garrett"), Steve Whitaker ("Whitaker"), Steve Knapp ("Knapp"), Michael Snider ("Snider"), Tim McClure ("McClure"), Scott Stockton ("Stockton"), Larry Harshman ("Harshman"), T. Denny ("Denny"), Bonnie Barnard ("Barnard"), and Bob May ("May").
Plaintiffs operate a tackle shop in Greenfield, Indiana, known as Tackle Town. Plaintiffs' lawsuit stems from a search and seizure Defendants conducted at Tackle Town and at the Willits' residence. Plaintiffs asserted claims under 42 U.S.C. § 1983 and Indiana law. Currently before the Court are Plaintiffs' Motion for Partial Summary Judgment on their § 1983 claim with respect to the search and seizure at Tackle Town, and the Indiana State Police Defendants' ("State Defendants") Motion for Summary Judgment on all claims. The Court will now consider both motions.
I. FACTUAL BACKGROUND
After being arrested for stealing Wal-Mart merchandise, Tim Spurling ("Spurling") provided a statement to the Indiana and Illinois State Police Departments about his activities. Spurling told ISP detectives that he had been taking the stolen Wal-Mart property to Tim Willits, Plaintiffs' son, for quite some time, and had received money and controlled substances in return. Michael Morris Aff. ¶ 6; David Phelps Aff. ¶ 6; Michael Snider Aff. ¶ 6.; Michael Morris Dep. at 35-36, 40. In August 1997, Phelps, Snider, and Morris learned that Spurling had admitted to stealing millions of dollars worth of merchandise from Wal-Mart stores over a period of about four years. Morris Aff. ¶¶ 4-5; Phelps Aff. ¶¶ 4-5; Snider Aff. ¶¶ 3, 5. After receiving the stolen goods from Spurling, Tim Willits would then sell them at Plaintiffs' tackle shop, Tackle Town. Apparently as a result of this interview, the ISP set up controlled buys between Spurling and Tim Willits. The ISP then obtained search warrants for Tackle Town and Tim Willits' residence, and executed the warrants with the assistance of Wal-Mart employees. The ISP also searched Plaintiffs' residence without a warrant. It was the execution of the warrant at Tackle Town and the search of Plaintiffs' home that triggered this lawsuit.
A. THE CONTROLLED BUYS
Biggs, who worked for Wal-Mart, cooperated with the ISP investigation of Willits. Biggs provided Wal-Mart merchandise (primarily sporting goods and fishing equipment) that Spurling then offered for sale to Tim Willits in exchange for prescription drugs and United States currency. Defendants' Statement of Facts ("DSF") ¶ 5. On four different occasions Tim Willits purchased from Spurling property that was purportedly stolen from Wal-Mart. ISP monitored each transaction. Morris Aff. ¶¶ 9-16, 24-25, 28.
Biggs and various ISP officers observed the August 26, 1997, transaction. DSF ¶ 7. During the transaction, Tim Willits told Spurling that he might be able to trade him liquid Demerol for more stolen Wal-Mart property the next day. Id. ¶ 8. On August 27, 1997, the ISP conducted a second monitored transaction, which Biggs and Officers Morris, Snider, Barnard, Neal, Stockton, and Garrett all observed. Id. ¶ 9.
The third monitored transaction occurred on September 16, 1997, and Morris, Snider, Barnard, Southerland, Neal, Stockton, Garrett, and Biggs all observed it. Id. ¶ 10. During this transaction, Tim Willits actually helped Spurling retrieve what he believed was stolen property from a location near a Wal-Mart store. Morris Aff. ¶ 25. Tim Willits told Spurling that he had personally stolen from Wal-Mart and talked freely of having received stolen Wal-Mart property from Spurling over the past four or five years. Id.
Finally, a fourth monitored transaction occurred on September 17, 1997. During that transaction, Tim Willits told Spurling that he had been purchasing stolen property from him for about four years and that he had been paying Spurling about 15-20% of the value of the property in cash and Roxicodone pills. DSF ¶ 16. He also told Spurling that during the previous year he had paid Spurling about $30,000 to $35,000 in cash and had given him 250-300 Roxicodone pills. Id. ¶ 17.
B. THE ITEMS USED IN THE CONTROLLED BUYS
Biggs provided a list of property donated by Wal-Mart for use in the controlled buys. Joint Statement of Material Facts ("JSMF") ¶ 2. The control items were marked in a number of ways so they could be traced. Id. ¶ 3. Some of the items had green stickers in an attempt to make them readily identifiable. Id. ¶ 4. Some were marked with bar codes. Every single item was marked with ultraviolet liquid to make each of them identifiable prior to its transfer to Tim Willits. Id. ¶ 8. The ultraviolet liquid was visible under an ultraviolet light. Id. ¶ 9. On August 28, 1997, Morris and Deputy Sheriff Southerland purchased four fishing reels from the Willits' store, and three of the four reels had markings that showed up under a black light, indicating that the reels were part of the Wal-Mart merchandise that had been sold to Tim Willits during the monitored transactions. DSF ¶ 13.
Before the last controlled buy on September 17, 1997, there was a list of property that totaled 866 items. Id. ¶ 47.
C. THE ISP SEEKS SEARCH WARRANTS
In early September 1997, several police officers and Wal-Mart investigators met with Hancock County Prosecutor Terry Snow ("Snow") at his home to inform him that Tim Willits had been fencing stolen property. Id. ¶ 18. Those at the meeting included Morris, Phelps, Snider, Biggs, and Barker, another Wal-Mart investigator. Id. ¶ 19. The meeting was conducted at Snow's home because the case was considered sensitive in that Tim Willits was a former Greenfield police officer. Id. ¶ 20. During the meeting, Snow requested that, at a minimum, one more monitored transaction be arranged. Id. ¶ 21.
Although it is not clear if it was the same meeting, Biggs and Barker attended a meeting with Morris, Phelps, Snider, and the Hancock County Prosecutor regarding the investigation and a request for search warrants. Id. ¶ 14.
After the controlled buy on September 17, 1997, Tim Willits was arrested. DSF ¶ 28. That same day, Morris obtained search warrants from Hancock Superior Court II for the residence of Tim Willits and for Tackle Town. Id. ¶ 22. In obtaining the warrants, Morris informed the Court that three controlled sales of purportedly stolen merchandise had been made to Tim Willits since August 26, 1997, and that it was his information that Tim Willits had been buying stolen property for four to five years. Id. ¶ 23. Morris also informed Judge Culver that he had received information from Spurling that Tim Willits had paid him with Roxicodone pills worth about $10,000 and that Spurling had been bringing Tim Willits stolen merchandise on a weekly basis for four or five years, with each transaction averaging about $5,000. Transcript of Search Warrant Hearing at 18-19; Morris Aff. ¶ 26.
The warrant for Tackle Town authorized any law enforcement officer in the State of Indiana to enter "Willits Tackle Shop located at 1429 East Main Street, (U.S. 40) Greenfield Indiana 46140, being a wood-framed one story business on the south side of U.S. 40," and to diligently search for the following described property:
stolen property and/or property purported to be stolen, including fishing and sporting goods equipment, gold jewelry, electronic equipment, controlled substances, money, checks, monetary and business records (written and computerized), notes and records related thereto.
DSF ¶ 25; JSMF ¶ 17. The warrant also stated that, "You are further Ordered to seize such property, or any part thereof, found on such search." DSF ¶ 26.
A second warrant authorized the entry into "1335 Pauls Drive, Greenfield, Indiana 46140, being a brick one-story residence, located on the south side of Pauls Drive with a two-car attached garage and storage building" and authorized the search for:
stolen property and/or property purported to be stolen, including fishing and sporting goods equipment, gold jewelry and electronic equipment, controlled substances, money, checks, monetary and business records (written and computerized), notes and records related thereto.
JSMF ¶ 18. This apparently was the residence of Tim Willits.
D. THE SEARCHES AND SEIZURES
1. Wal-Mart's Request to Assist the ISP
A briefing by Phelps, involving Barnard, May, Snider, Harshman, Biggs, Barker, and others occurred the day the search warrant was obtained. JSMF ¶ 19. During the planning of the search detail, Biggs requested that the ISP use some Wal-Mart personnel to assist in the identification and collection of merchandise at Tackle Town. Id. ¶ 20. Biggs reassured Phelps and Knapp that Wal-Mart had done seizures like this many times with law enforcement without any problems. Id. ¶ 21. Biggs stated that Wal-Mart had specific equipment and procedures that they used which could expedite the inventory process during the seizure. Id. ¶ 22. Knapp strongly objected to the inclusion of the Wal-Mart employees in the seizure. Id. ¶ 23.
The ISP ultimately agreed to let Wal-Mart personnel assist in the search and seizure. According to the operational plan, Wal-Mart personnel were assigned to location #3, Tackle Town, and their responsibility was to "assist with identification and collection of seized inventory." Id. ¶¶ 41-42. Wal-Mart was to provide the employees to do the collecting of the items seized. Id. ¶ 43. Biggs coordinated Wal-Mart's involvement with the Tim Willits investigation, and Biggs and Barker were the Wal-Mart liaisons during the search and seizure. Id. ¶ 35.
Officer McClure was not familiar with any police procedure allowing civilian employees to participate in the execution of a search warrant. McClure Dep. at 20. In his nine years as an ISP officer, Whitaker had never experienced civilians assisting in the execution of a search warrant. Plaintiffs' Statement of Material Facts ¶ 138. In addition, Snider could not recall any incidents during his 17-year career where a civilian participated in the execution of a search warrant, nor could he identify any ISP practice or procedure that permitted civilians to do so. Id. ¶ 139.
2. Wal-Mart Assists the ISP in the Search and Seizure of Tackle Town
It is not clear who saw the actual search warrant for Tackle Town. Snider does not recall Morris showing the search warrant to the officers or to the Wal-Mart employees prior to its execution. JSMF ¶ 80. Dodson did not review the warrant before executing it. Id. ¶ 81. Biggs never saw the warrant. Id. ¶ 82. Garrett does not recall seeing the warrant, and received no instructions as to the scope of the warrant. Id. ¶ 83. A copy of the warrant was not presented at the pre-search briefing. Id. ¶ 84.
The Court's use of the term "warrant," unless indicated otherwise, refers to the warrant for Tackle Town. While the police actually had two search warrants — one for Tackle Town and one for Tim Willits' residence — Plaintiffs' lawsuit focuses only upon the search and seizure of Tackle Town.
Nonetheless, on September 17-18, 1997, the ISP Defendants entered and searched Tackle Town and residence of Tim Willits under the authority of the search warrant. They were accompanied by Wal-Mart employees. Id. ¶ 24. Wal-Mart employees were made available to the ISP for assistance with boxing and loading merchandise. Id. ¶ 38. During the search of the business, the ISP Defendants seized approximately 94,000 items of property. Id. ¶ 25.
With respect to the search of Tackle Town, the supervision and control of the Wal-Mart employees was to be controlled by Phelps and Knapp. Id. ¶ 27. Phelps was in charge, and he made the decisions at Tackle Town. Id. ¶¶ 28-29. Phelps, however, deferred entirely to the judgment of the Wal-Mart employees and their supervisors to select merchandise to be seized from Tackle Town. Id. ¶ 57. Phelps based his decision as to what could be seized on the fact that Spurling did not recall everything that he had taken to the store and Spurling's information that Tim Willits had admittedly shoplifted on his own. Id. ¶ 96. All items identified by the Wal-Mart employees to be taken were seized. Id. ¶ 58.
It appears that there was no clear understanding as to what was to be seized. According to Dodson, items and merchandise could be seized if one of the following occurred: an item had a green sticker; an item indicated under ultraviolet light; an item had its serial number scratched out; merchandise with another store's price sticker on it (because it looked suspicious and could have been stolen property from another store); and any other item or merchandise that Wal-Mart employees recognized as something that Wal-Mart stores had sold. Id. ¶ 37. It was Barnard's understanding that only those items that were marked, could be identified by using an ultraviolet light, or had Wal-Mart packaging or sales tags were subject to seizure. Other items, regardless of the brand and even if they were also sold at Wal-Mart, were not to be taken. Barnard Dep. at 43-44.
According to Barker, he was supposed to identify any potentially stolen merchandise which at a later date could have been identified as stolen merchandise. Id. ¶ 52. Barker supervised the selection of merchandise that was being pulled out of Tackle Town because it either had Wal-Mart stickers on it, showed up under a black light, or was purportedly stolen. Id. ¶ 53. He apparently instructed Wal-Mart employees to identify and seize items like merchandise sold at Wal-Mart. Id. ¶ 54.
Although nobody from the ISP questioned Biggs' interpretation of the warrant, Biggs was informed that this action was not one to recover merchandise for Wal-Mart, but that it was only a criminal prosecution. Knapp Dep. at 37; Biggs Dep. at 143. According to Knapp, nothing in the search warrant stated that any item that is sold at Wal-Mart could be taken. Knapp Dep. at 36. Moreover, it was not Barnard's understanding that Wal-Mart employees would be permitted to take items specifically packaged with mailing addresses to the Willits. Barnard Dep. at 62.
On the first day of the search there were between 10 to 15 Wal-Mart employees working on the collection of items. Ex. 13. The next day, there were between 25 to 40 Wal-Mart employees collecting items. Id. Dodson and Knapp were trying to supervise the Wal-Mart employees during the execution of the warrant at Tackle Town. JSMF ¶ 67. Dodson and Knapp were the only ISP officers who remained in the business at all times during the execution of the warrant. Id. ¶ 68.
Michael Crider ("Crider"), an officer with the Indiana Department of Natural Resources, was familiar with Tackle Town because he had volunteered to stock shelves and order inventory. PSMF ¶ 178.
Crider was familiar with the inventory of the store, the volume of inventory, and the distributors. Crider Aff. ¶¶ 8-9. The Willits purchased items on discount or close-out from Wal-Mart, Big Lots, other bait stores that went out of business, and Target, and would resell the items in their store. Id. ¶ 10. Crider knew most of the ISP troopers who were involved with the investigation of Tim Willits, including the search and seizure of Tackle Town. Id. ¶ 181.
Crider told one Wal-Mart employee that "you guys are going way too fast and you need to slow down." The employee replied that they were executing a search warrant and that the decision had been made that the entire inventory be considered as "ill gotten gains." This conversation apparently took place in the presence of Morris. Id. ¶¶ 6-18. Crider also heard a Wal-Mart employee at Tackle Town state that "if Wal-Mart sells it then we are taking it." Crider confronted some other Wal-Mart employees and inquired why they were opening boxes that had shipping labels to Tackle Town on the box. Crider asked the employees why they were taking those items that they could see had been shipped to Tackle Town.
In response, the Wal-Mart employees opened the box, dumped the contents out on the floor, and said, "Well it doesn't say Wal-Mart now!" Id. ¶¶ 19-22. In addition, items which contained price stickers from a store other than Wal-Mart were seized. JSMF ¶ 55.
Defendants generally object to the admission of the Wal-Mart employees' statements because they are hearsay. Plaintiffs counter that the statements are not hearsay under Fed.R.Evid. 801(d)(2). The Court agrees with Plaintiffs that these statements are not hearsay, because they were arguably made by a person authorized by the State to make the statements or they were made by the State's agent or servant, concerning a matter within the scope of the agency, and made during the existence of the relationship.
Wal-Mart's associates were required to comply with the ISP in all respects, including instructions. Id. ¶ 70. According to ISP procedures, all physical evidence was to be processed by department personnel. Phelps Dep. at 64-65. Knapp, an evidence technician with the ISP, instructed the Wal-Mart personnel that the items collected needed to be marked down on a piece of paper describing what was being taken and the number of items that were being taken and placed in box. The Wal-Mart employees were then to take the paper and the box to him. Knapp would then look in the box and determine whether it looked like the same amount listed on the sheet. Knapp did not count the items. Knapp recorded on the property sheet the number Wal-Mart employees gave him. He would then place the ISP's item and case number on it, take the sheet from the Wal-Mart employees, and seal the box. JSMF ¶¶ 74-75, 77, 98-99. The Wal-Mart employees then loaded all boxes of merchandise identified for seizure onto a semi-trailer. Id. ¶ 69.
Dodson had concerns about not being able to verify the count, but Knapp told her that they had to do the best they could with what they had because they were using Wal-Mart employees to count the items. Id. ¶ 78. Dodson believed that by relying upon the count done by Wal-Mart employees without verifying it for herself, she failed to follow her training to accurately count items that were seized pursuant to the search warrant. Id. ¶ 79.
E. THE WILLITS' ATTEMPTS TO RECOVER PROPERTY
On September 26, 1997, Robert, Judy, and Paula (Tim's wife) Willits filed a Motion to Recover Property in Hancock Superior Court II, Judge Culver's Court. Ex. 11. On October 31, 1997, Judge Culver held a hearing on the Motion to Recover Property. Ex. 5. The State was represented by counsel. Id. During the hearing, Judge Culver stated that:
no reasonably [sic] could possibly assume uh that the Court order would authorize civilians uh to take Mr. Willits property. No reasonable person could possibly assume uh that I authorized or had even the slightest suspicion that the police were [sic] go in there and take 86,000 to 94,000 pieces of property. No reasonable person could possible [sic] assume that I authorized the police uh to take property that was boxed and shipped from manufacturers that wasn't even open.
Id.
Judge Culver ordered all of the items seized to be returned, except for certain items, including those that were bar coded and blacklighted as part of the sting operation. PSMF ¶ 146. Judge Culver stated that there was ". . . no way in the world that any reasonable person could have thought I was told that they were going to take 94,000 pieces of property . . ." Ex. 5 at 5. Judge Culver determined after hearing the evidence that the "State of Indiana exceeded the scope of the authority granted to the State by virtue of the search warrants issued in this cause and improperly seized property belonging to the Intervenors." Ex. 6. After the court ordered the items returned, Sylvester was assigned to re-inventory and return the items. PSMF ¶ 155. Morris told Sylvester which items were to be returned. Id. ¶ 156. Sylvester did not use the blacklight to determine which items should be returned pursuant to the court order. Id. ¶ 157.
On December 1, 1998, Tim, Robert, and Judy Willits filed a second Motion to Recover Property in Hancock Superior Court I, Judge Payne's court. Ex. 11. On January 25, 1999, Judge Payne held a hearing. Ex. 7. The Court determined that the State was served with notice of the date the motion was set for hearing. Nonetheless, the State of Indiana and the ISP did not appear in person or by counsel at the hearing. Id. Judge Payne determined that pursuant to Indiana Trial Rule 55, the Willits were entitled to judgment in their favor. Id. Judge Payne found that Judge Culver had ordered the ISP to return certain items to the Willits, but that the ISP either failed to return them or returned them in a damaged condition, unsuitable for sale. Id. He also found that the State and/or the ISP converted the Willits' property when they failed to return it to them. Id. Judge Payne found the total value of unreturned items was over $25,000. Id. He entered a default judgment against the State and the ISP, and ordered them to return the property by a certain time. Id. None of the ISP Defendants was personally represented in any state court proceedings relating to the Willits. Morris Aff. ¶ 37; Phelps Aff. ¶ 20; Snider Aff. ¶ 21; Barnard Aff. ¶ 8; Garrett Aff. ¶ 8; Moore Aff. ¶ 7; Whitaker Aff. ¶ 7; Knapp Aff. ¶ 11; Dodson Aff. ¶ 9; May Aff. ¶ 7; Harshman Aff. ¶ 8; McClure Aff. ¶ 7; Denny Aff. ¶ 8; and Stockton Aff. ¶ 7.
II. STANDARDS
A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 499 U.S. 923 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
B. SECTION 1983 STANDARDS
Title 42 U.S.C. § 1983 creates a federal cause of action for "the deprivation, under color of [state] law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws of the United States." Spiegel v. Rabinovitz, 121 F.3d 251, 254 (7th Cir), cert. denied, 522 U.S. 998 (1997). Section 1983 is not itself a font for substantive rights; instead it acts as an instrument for vindicating federal rights conferred elsewhere. Id. Liability under § 1983 requires proof of two essential elements: that the conduct complained of (1) was committed by a person acting under color of state law; and (2) deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Larsen v. City of Beloit, 130 F.3d 1278, 1282 (7th Cir. 1997).
The initial step in any § 1983 analysis is to identify the specific constitutional right which was allegedly violated. Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir. 1997), (citing Graham v. Connor, 490 U.S. 386, 394 (1989); Kernats v. O'Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994)). The Willits allege that Defendants violated their rights under the Fourth Amendment, which protects persons against unreasonable searches and seizures of their "persons, houses, papers, and effects." Siebert v. Severino, 2001 WL 755419, *3 (7th Cir. July 6, 2001). That amendment also requires that a warrant "particularly describe . . . the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The parties do not dispute that the warrant for Tackle Town in this case met this particularity requirement. Instead, the Willits claim that the State Defendants exceeded the scope of the warrant when they seized approximately 94,000 items from their tackle shop. "The requirement that search warrants particularly describe the things to be seized is a bedrock of Fourth Amendment jurisprudence." Supreme Video, Inc. v. Schauz, 15 F.3d 1435, 1439 (7th Cir. 1994). The particularity requirement "makes general searches under [a warrant] impossible and prevents the seizure of one thing under a warrant describing another." Marron v. United States, 275 U.S. 192, 196 (1927). The Willits complain that the State Defendants violated their right to be free from unreasonable searches and seizures when they delegated to Wal-Mart employees the complete authority and responsibility for execution of the warrant at Tackle Town, and then failed to properly control and/or supervise them.
The Willits also contend that the ISP violated their rights under the Fourth Amendment when the police searched their home without a warrant and without obtaining their voluntary consent. Law enforcement officers may legally search without a warrant if they obtain voluntary consent from the person whose property is to be searched or from someone with actual or apparent authority over the premises. United States v. Gevedon, 214 F.3d 807, 810 (7th Cir.), cert. denied, 531 U.S. 916 (2000) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); United States v. Aghedo, 159 F.3d 308, 310 (7th Cir. 1998); United States v. Saadeh, 61 F.3d 510, 517 (7th Cir. 1995). The parties dispute whether such consent was present in this case. With these standards in mind, the Court will now turn to Plaintiffs' claims.
III. DISCUSSION
A. THE DOCTRINE OF COLLATERAL ESTOPPEL
The Willits first maintain that both Judges Culver and Payne of Hancock County Superior Court found that the State Defendants exceeded the scope of the warrant when they searched Tackle Town.
Because that issue has already been decided, according to Plaintiffs, the doctrine of collateral estoppel precludes State Defendants from re-litigating the issue in this matter. Collateral estoppel generally bars a subsequent re-litigation of the same fact or issue where that fact or issue was necessarily adjudicated in a former suit and the same fact or issue is presented in a subsequent lawsuit. In that situation, the first adjudication will be held conclusive even if the second is on a different claim. Tofany v. NBS Imaging Sys., Inc., 616 N.E.2d 1034, 1036 (Ind. 1993).
Plaintiffs claim they are seeking to use "offensive collateral estoppel," a term that has been used to describe the situation where the "plaintiff seeks to foreclose the defendant from litigating an issue the defendant had previously litigated unsuccessfully in an action with another party." Id. at 1037 (quoting Parklane Hosiery v. Shore, 439 U.S. 322, 326 at n. 4 (1979). In considering the appropriateness of allowing Plaintiffs to assert collateral estoppel offensively, the Court must go through a two-step process.
First, the Court must determine whether the individual officers had a full and fair opportunity to litigate the issue in the prior action. Second, the Court must determine whether it would otherwise be unfair to apply collateral estoppel given the facts of this particular case. Tofany, 616 N.E.2d at 1038. Factors the Court may consider include privity, the individual officers' incentive to litigate the prior action, the individual officers' ability to defend the prior action, and the ability of Plaintiffs to have joined the prior action. Id.
First, the Court notes that Judge Payne ruled only that the State of Indiana and the ISP failed to abide by Judge Culver's order to return certain property to Plaintiffs. Judge Payne did not, however, consider whether the State Defendants violated Plaintiffs' Fourth Amendment rights, nor did he consider any other issues presently before this Court. Therefore, his ruling has no preclusive effect on any issues in Plaintiffs' § 1983 claims.
With respect to the hearing before Judge Culver on Plaintiffs' motion to recover their property, the Court concludes that the individual officers did not have a full and fair opportunity to litigate any of the issues involved in this case. These individual officers were not parties to the earlier proceeding. Instead, Plaintiffs' opponent was the State of Indiana and the ISP. Although Morris testified at the initial probable cause hearing, neither he nor any of the other individual officers had any control whatsoever over the hearing, the prosecution of Tim Willits, or any other proceeding in state court related to this matter.
Moreover, these officers could not call witnesses, could not choose the counsel who represented the State at the hearing, and could not appeal Judge Culver's ruling once it was made. Nor were these officers in privity with the State of Indiana or the ISP. Plaintiffs are suing the officers in their individual capacities in this matter. The officers' personal interests, which were not at stake in hearing before Judge Culver, are different from the State of Indiana's and the ISP's interests. See Kinslow v. Ratzlaff, 158 F.3d 1104, 1106 (10th Cir. 1998) (citing 18 Charles A. Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure § 4458, at 508 (1981) ("[A] judgment against a government does not bind its officials in subsequent litigation that asserts a personal liability against the officials.")). Because these individual officers were not parties to the prior litigation, and were not in privity with the State or the ISP, the Court concludes that they did not have a full and fair opportunity to litigate any issues in the prior litigation and that to apply collateral estoppel under these circumstances would be unfair. Accordingly, the Court will proceed to consider the merits of Plaintiffs' claims.
B. § 1983 CLAIM WITH RESPECT TO SEIZURE AT TACKLE TOWN
1. Are the State Defendants Entitled to Qualified Immunity?
As an initial matter, the Court must determine precisely what actions of the State Defendants, if any, violated the Constitution. With respect to the search and seizure of Tackle Town, Plaintiffs move for summary judgment only against individual officers Phelps, Morris, Knapp, and Dodson. See Plaintiffs' Brief in Support of Motion for Partial Summary Judgment at 23. While these individuals may not have participated in the actual seizure of the items, it is Plaintiffs' contention that these officers violated their constitutional rights by delegating to Wal-Mart employees the complete authority to search and seize items from Tackle Town. In addition, Plaintiffs claim that these officers then failed to supervise the Wal-Mart employees in the execution of the search warrant.
Before addressing the merits of Plaintiffs' claim, the Court must first consider the officers' assertion that they are entitled to qualified immunity, which is an "`entitlement not to stand trial or face the other burdens of litigation.'" Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The privilege is "`an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'" Id. As a result, the Supreme Court has stressed the importance of resolving immunity questions at the earliest stage of litigation. Id.
In addressing the qualified immunity issue, the Court's initial inquiry must be whether taken in the light most favorable to Plaintiffs, do the facts alleged show the officers' conduct violated a constitutional right? Id. If a violation could be made out on a favorable view of the facts, the next step is to ask whether the right was clearly established. This inquiry must be undertaken "in light of the specific context of the case, not as a broad general proposition." Id. In addition, the "relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. (citing Wilson v. Layne, 526 U.S. 603, 615 (1999)).
The first step, then, is to determine whether the Plaintiffs have alleged a constitutional violation.
Plaintiffs' contention is that the officers delegated complete authority to the Wal-Mart employees to execute the search warrant, and that the Wal-Mart employees then used that authority to grossly exceed the terms of the warrant by seizing nearly the entire inventory of Tackle Town. In addition, Plaintiffs argue that the officers failed to properly supervise the Wal-Mart employees to ensure that they were not exceeding the scope of the warrant.
It is clear that the Fourth Amendment's proscription of unreasonable searches and seizures ensures reasonableness in both the scope and the manner of searches and seizures. See Graham, 490 U.S. at 395 ("the `reasonableness' of a particular seizure depends not only on when it is made, but also on how it is carried out") (citation omitted). It appears that in this case the officers gave the Wal-Mart employees complete control over the scope of the search and seizure of Tackle Town. Despite this delegation of their authority, the officers failed to even show the Wal-Mart employees a copy of the warrant. In addition, the officers completely deferred to the judgment of the Wal-Mart employees as to what property to seize, and exercised virtually no control or supervision over the scope of the search. The end result was that the Wal-Mart employees seized approximately 94,000 items of property, including items that were shipped directly to Tackle Town from a third party. Under these circumstances, the Court concludes that Plaintiffs have alleged facts that state a constitutional violation.
The Court must now consider whether the right was clearly established. As discussed, the Court must undertake this inquiry in light of the specific context of the case, not as a broad general proposition.
Moreover, the dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. The parties have not alerted the Court to any case that addresses this particular factual situation. A right may be clearly established, however, if it is so obvious that a reasonable state actor would know that what they were doing violated the Constitution or if a closely analogous case establishes that the conduct is unconstitutional. Siebert, 2001 WL 755419 at *4. Some rights may be so clearly established that there may not even be case law on point. As the Supreme Court has explained: "The easiest cases don't even arise. There has never been . . . a Section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose the officials would be immune from damages." United States v. Lanier, 520 U.S. 259, 271 (1997) (citations omitted).
The Court concludes that even absent case law directly on point, this case falls within the "obvious" scenario. While the officers correctly argue that they were entitled to interpret the warrant broadly, that is not the crux of their problem. Their mistake was in delegating to private parties the absolute right to control and execute a search warrant. The officers do not explain how the warrant, which was specifically issued only to "any Law Enforcement Officer in the State of Indiana," somehow authorized them to delegate this authority to private citizens. Even if the officers were somehow authorized to delegate their responsibilities, it should have been obvious to them that they could not send the private party into the search and seizure without even showing them a copy of the warrant or otherwise instructing them as to its proper scope. It also should have been obvious to them that if they were going to delegate their powers in such a manner, they should have closely supervised and controlled the Wal-Mart employees' actions to ensure that they complied with the terms of the warrant. The right to be free from an unsupervised, uncontrolled search and seizure by private parties was clearly established and, as a result, the officers are not entitled to qualified immunity.
Although Plaintiffs do not cite it, the Court notes that the Fourth Circuit found that by the time of a November 1992 search, it had "no doubt that the Fourth Amendment prohibits government agents from allowing a search warrant to be used to facilitate a private individual's independent search of another's home for items unrelated to those specified in the warrant. Such a search is not `reasonable.' It obviously exceeds the scope of the required specific warrant . . ." Buonocore v. Harris, 65 F.3d 347, 356 (4th Cir. 1995).
2. The Merits of Plaintiffs' § 1983 Claim Regarding the Tackle Town Search/Seizure
The Court must now address the merits of Plaintiffs' claims. Liability under § 1983 requires proof of two essential elements: that the conduct complained of (1) was committed by a person acting under color of state law; and (2) deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Larsen, 130 F.3d at 1282. There is no dispute that the officers were acting under color of state law, so the only question is whether they deprived Plaintiffs of a constitutional right.
The undisputed facts reveal that, after obtaining a search warrant for Tackle Town, the officers allowed various Wal-Mart employees to execute the warrant. There is no evidence that the officers even showed a copy of the warrant to the Wal-Mart supervisors or any of the Wal-Mart employees. Although the supervision and control of the Wal-Mart employees was to be the responsibility of Phelps and Knapp, Phelps deferred entirely to the judgment of the Wal-Mart employees and their supervisors to select merchandise to be seized from Tackle Town. Dodson and Knapp were the only ISP officers who remained at Tackle Town at all times during the execution of the warrant. Knapp objected to allowing civilians to participate in the search, and Dodson recognized that their method of collecting evidence did not comply with departmental procedures. Nonetheless, the seizure continued until Wal-Mart was satisfied that it had recovered all of its "stolen" property.
The officers responded that they were aware of "no case that prohibits the police from using the owner of the stolen property to assist with a search and seizure," and that the "Fourth Amendment permits reasonable actions, and use of Wal-Mart employees was reasonable." In this case, however, the officers did not just use Wal-Mart employees to assist with the search, they essentially deputized them and delegated to them their complete authority to search and seize items at Tackle Town. Even if the Constitution permitted police officers to share with civilians their authority to conduct searches and seizures, the officers here exacerbated the problem by completely failing to monitor or supervise the actions of the Wal-Mart employees. It appears that the Wal-Mart employees took this opportunity and used it to seize nearly everything in Tackle Town, apparently because they decided all items were "ill-gotten gains."
When the officers received the search warrant, they also received certain limited rights to occupy and control the property. Within the bounds of the warrant, they were allowed to enter the property and search for items described in the warrant. In conducting these activities, however, the officers were obligated to act in a reasonable manner. In this case, they failed to do that. Instead, the officers violated the trust given to them by shirking all responsibility for ensuring that the scope of the search and seizure did not exceed the terms of the warrant. As one district court aptly noted, the right to be free from unreasonable searches and seizures is important and must be vigorously protected:
[t]o an innocent private citizen, there are few things more frightening than the realization that a police officer has the power to deprive him of his freedom. Yet when a police officer dresses an unauthorized person in the authority to deprive another of his freedom, he diminishes society's trust in law enforcement and undermines the government's ability to protect citizens from unreasonable government intrusion . . . Because the right to be secure against unreasonable searches and seizures is one of the most difficult to protect, the authority we concede to an officer to conduct a search or seizure must be closely guarded.
Polk v. District of Columbia, 121 F. Supp.2d 56, 66-67 (D.D.C. 2000). The facts are not in dispute, and the Court finds as a matter of law that Defendants Morris, Phelps, Knapp, and Dodson violated Plaintiffs' constitutional right to be free from unreasonable searches and seizures. As a result, the Court DENIES the State Defendants' Motion for Summary Judgment and GRANTS Plaintiffs' Motion for Summary Judgment on their § 1983 claim with respect to the search and seizure at Tackle Town.
C. § 1983 CLAIM REGARDING SEARCH OF PLAINTIFFS' HOME
The State Defendants have also moved for summary judgment on Plaintiffs' claim that the officers violated their Fourth Amendment rights by searching their home without a warrant or their consent.
Plaintiffs concede that — with respect to this claim — they failed follow this district's local rules for the proper designation of facts. Instead, Plaintiffs invite the Court to consider facts they designated in their response to Wal-Mart's Motion for Summary Judgment. The Court declines their invitation. Plaintiffs are not the only culprits, however, as the State Defendants also failed to designate any facts related to this claim in their Statement of Material Facts. While the Court certainly has discretion to excuse technical violations of L.R. 56.1, the parties here have completely failed to comply with the rule. As a result, neither party had an opportunity to respond to or object to the other party's alleged "facts." To expect the Court to comb through the appendices in an effort to identify which facts, if any, are undisputed would turn the purpose of L.R. 56.1 on its head. As a result, the Court DENIES the State Defendants' Motion for Summary Judgment on Plaintiffs' § 1983 claim with respect to the search of Plaintiffs' home.
The Court recognizes that Plaintiffs did provide a few facts related to this claim in their Response to Defendants Statement of Material Facts. The proper way to get those facts before the Court, however, would have been for Plaintiffs to also include those facts in their Statement of Additional Material Facts. In some cases the Court might overlook this technical violation of the rules, but it declines to do so here.
For example, the rules required Defendants to provide a Statement of Material Facts that consists of concise, numbered sentences with the contents of each sentence limited as far as practicable to a single factual proposition. Local Rule 56.1(f). The only "facts" Defendants offered were really more like legal conclusions. See Defendants' Statement of Facts ¶¶ 29-30. Otherwise, Defendants simply referred in their brief to various affidavits buried in the appendices filed with these motions.
D. PLAINTIFFS' STATE LAW CLAIMS
The individual officers claim that they are not the proper parties to Plaintiffs' state law claims by virtue of Indiana Code § 34-13-3-5(a), which provides in relevant part that:
A lawsuit alleging that an employee acted within the scope of the employee's employment must be exclusive to the complaint and bars an action by the claimant against the employee personally. However, if the governmental entity answers that the employee acted outside the scope of the employee's employment, the plaintiff may amend the complaint and sue the employee personally.
Accordingly, if Plaintiffs are alleging that the officers acted within the scope of their employment with the ISP, the only proper party to state law claims arising from that conduct is the governmental entity itself. In Indiana, an employee's tortious conduct may fall within the scope of his employment if his purpose was, to an appreciable extent, to further his employer's business. City of Anderson v. Weatherford, 714 N.E.2d 181, 186 (Ind.Ct.App. 1999). In addition, even "the commission of an intentional criminal act may be considered as being within the scope of employment if the criminal acts originated in activities so closely associated with the employment relationship as to fall within its scope. . . . even willful or wanton behavior does not necessarily remove one from the scope of his employment." Id. Plaintiffs argue that the State Defendants were acting within the scope of their employment in executing the searches and seizures, and the officers agree. As a result, these individual defendants are not the proper parties to Plaintiffs' state law claims and the Court GRANTS Defendants' Motion for Summary Judgment on those claims.
IV. CONCLUSION
In sum, the Court GRANTS Plaintiffs' Motion for Partial Summary Judgment on their § 1983 claim with respect to the search of Tackle Town, and DENIES the State Defendants' Motion for Summary Judgment on that same claim. The Court also DENIES the State Defendants' Motion for Summary Judgment on Plaintiffs' § 1983 claim with respect to the search of their home. Finally, the Court GRANTS the State Defendants' Motion for Summary Judgment on Plaintiffs' claims under Indiana law.
IT IS SO ORDERED.