Opinion
Case No. 98 C 1862
January 31, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff, Nicholas Phelan, brings this action under 42 U.S.C. § 1983. This matter is before the Court on the Fed.R.Civ.P. 56 motion for summary judgment brought by defendants Officer Richard Paladino and Officer James O'Leary. For the following reasons, the motion is granted.
BACKGROUND
The following facts, taken from the parties' statements of material facts are undisputed unless otherwise noted. Nicholas Phelan was arrested and tried for the murder of Laura Banuelos. He was incarcerated for approximately 28 months while he awaited trial and was ultimately found not guilty. He is now claiming damages for false arrest and malicious prosecution.
On July 22, 1994, Officer Paladino investigated the murder of Laura Banuelos. Laura Banuelos was shot in the head at 4054 South Archer near the intersection of Archer and California. Various witnesses were present at the time of the shooting. As a result of interviews with witnesses at the scene, the reporting detectives learned that, prior to the shooting, two vehicles were seen speeding through the neighborhood. Witnesses stated that a black car with a lone white male occupant appeared to be chasing a second vehicle, a grey Ford Mustang, containing several Hispanic males. Both vehicles stopped at the traffic signal at Archer and California. The driver of the black car exited his vehicle and fired one shot north across Archer Avenue. That shot struck and killed the victim. Two witnesses gave descriptions of the shooter himself and several other witnesses provided descriptions of the car in which the shooter was driving.
At least four witnesses described the vehicle in question as a "black" car. One witness further described it as a Camaro IROC and estimated the year of make between 1988 and 1992. Another witness, Maurice Frazier, who also witnessed the shooter, described the car as a black Chevy IROC with the with the lettering "IROC" on the driver's side door, black louvers on the front hood and back window and gold ground effects.
One of the witnesses who gave a description of the shooter was Frazier, a bus driver for the Chicago Transit Authority. At the time of the shooting he was standing outside of his stalled bus on the southeast corner of Archer and California. He told Officer Paladino that he heard a gunshot and, when he looked in the direction of the gunshot, observed a six-foot tall, two hundred twenty-pound white male in his mid-twenties with long blond hair standing outside a black Chevy IROC. In his deposition he again testified that the man had shoulder length blond hair and stood with his arm outstretched at shoulder height as if holding and pointing a gun. Phelan disputes the exact description Frazier gave of the car at the time of the initial investigation. However, both parties agree that the initial police report contains Frazier's statement that the shooter was a white male, 6 feet tall, in his mid-twenties, weighing approximately 220 pounds and standing outside of a black Chevy IROC.
The second witness who gave a description of the shooter was Juan Aranda. Aranda stated that he was in his vehicle northbound on Archer, stopped at a red light at the intersection of Archer and California. Aranda testified at trial that the shooter was approximately 6 feet tall, weighed approximately 220 pounds, and was driving a black IROC Camaro. However, Phelan disputes whether Aranda provided the police with the description at the time of investigation prior to his arrest. Neither party disputes that the supplementary police report (created subsequent to the initial investigation reflects an interview with Juan Aranda within days following the incident) in which Aranda stated that he saw the driver's side door of a black Camaro in the left turning lane open and he then heard a gunshot.
The murder remained unsolved from 1994 until 1996, at which point Officer Paladino was involved in the investigation of the murder of a known gang member, William English, on March 9, 1996. While Officer Paladino was assisting in the investigation of that murder he noticed a black IROC Camaro parked at the scene. Remembering the description of the car given in the Banuelos murder, he inquired into who owned the vehicle and was told by a bystander that it belonged to Phelan. Upon returning to the station, he saw Phelan, who was there answering questions regarding the English murder. Officer Paladino performed a criminal history check and learned that Phelan had been previously arrested for drug possession and unlawful discharge of a weapon. He then prepared a photo array line-up which included a picture of Phelan.
On March 29, 1996, Officer Paladino showed the photo line up to Aranda. Aranda viewed the photographs and, after looking at the photos, stated that he thought Phelan was the shooter but was not 100% sure. Aranda then signed the back of the photo of Phelan.
On March 30, 1996, Officer Paladino and Officer O'Leary went to Phelan's house without an arrest warrant and arrested him in connection with the murder of Laura Banuelos. Subsequent to the arrest, witnesses Aranda and Frazier were each shown separate physical lineups which included Phelan. Both witnesses independently chose Phelan as the man they had seen on the day of the shooting. Phelan disputes the validity of both the photo and physical lineups. Phelan spent approximately 28 months in Cook County jail awaiting trial on the charges of first degree murder of Laura Banuelos and was ultimately found not guilty. He received credit for the time he served for the murder when he was sentenced for an unrelated gun charge. Phelan argues that, while it is true that he received credit by serving 28 months in Cook County jail, had he not been falsely prosecuted, he would have properly served time at another more comfortable institution.
Phelan admits to owning a 1989 black IROC at the time of the Banuelos shooting which had large lettering "IROC-Z" across the driver's side door. Phelan also admits that in 1994 his hair was spiked on top and "a little long" in the back and that he weighed between 200 and 220 pounds. Phelan also admits that Aranda picked him out of a photo lineup. Phelan, however, argues that the lineup was both unnecessarily suggestive and unreliable because it was executed two years after the incident and because the other potential suspects portrayed in the photos were clearly distinct from him in appearance.
In the two-count complaint, Phelan alleges false arrest and malicious prosecution. Phelan argues that he suffered a violation of his constitutional rights, emotional anxiety, mental trauma, humiliation, fear, suffering and monetary loss. Defendants advance two theories in support of summary judgment: (1) that they had probable cause to arrest Phelan and, because lack of probable cause is an essential element to both a false arrest and a malicious prosecution claim, both claims must fail, and (2) that qualified immunity shields them from civil liability in this matter.
DISCUSSION
A movant is entitled to summary judgment when the moving papers and affidavits show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue for trial exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view all the evidence in the light most favorable to the party opposing the motion, Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir. 1987), and draw all inferences in the non-movant's favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir. 1990). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The non-moving party must support its assertions with admissible evidence and may not rest upon the mere allegations in the pleadings or conclusory statements in affidavits. Celotex, 477 U.S. at 324. Additionally, Federal Rule 56(c) mandates summary judgment when the non-moving party fails to establish the existence of an element essential to its case and on which that party will bear the burden of proof at trial. A mere scintilla of evidence will not suffice to defeat a motion for summary judgment.Anderson, 477 U.S. at 252. Furthermore, the general standard for summary judgment cases is applied with added rigor where intent is inevitably the central issue." McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 371 (7th Cir. 1992). We keep these standards in mind as we examine the motion before us.
I. False Arrest
Phelan brings a § 1983 claim for false arrest in violation of the Fourth Amendment against Officers Paladino and O'Leary. To prove a claim under § 1983 against the officers, Phelan must show that a person acting under color of state law deprived him of a right, privilege, or immunity secured either by the Constitution or federal law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982); Monell v. Dep't of Soc. Serv., 436 U.S. 658, 694-95 (1978); Basquez v. Hernandez, 60 F.3d 325, 328 (7th Cir. 1995), cert. denied, 517 U.S. 1156 (1996). Officer Paladino and Officer O'Leary do not dispute that they were acting under color of state law at the time of Phelan's arrest. Rather, they argue that the undisputed facts establish probable cause for Phelan's arrest and, consequently, his constitutional rights were not violated. We agree.
The Fourth Amendment provides protection against unreasonable searches and seizures. To state a Fourth Amendment cause of action, Phelan must allege that the officers' conduct constituted a seizure and that the seizure was unreasonable. Kernats v. O'Sullivan, 35 F.3d 1171, 1177 (7th Cir. 1994). The Fourth Amendment protection against unreasonable seizures applies to state actors through the due process clause of the Fourteenth Amendment. Albright v. Oliver, 975 F.2d 343, 344-45 (7th Cir. 1992) (citing Mapp v. Ohio, 367 U.S. 643 (1961)) aff'd, 510 U.S. 266, (1994).
To prove false arrest, Phelan must show that he was unreasonably seized in violation of the Fourth Amendment. Palton v. Przbylski, 822 F.2d 697, 699 (7th Cir. 1987). In order to do this, Phelan must prove that the officers lacked probable cause. Jones v. Village of Villa Park, 815 F. Supp. 249, 253 (N.D.Ill. 1993). The existence of probable cause for arrest is an absolute bar to a § 1983 claim for false arrest.Simmons v. Pryor, 26 F.3d 650, 654 (7th Cir. 1993); Fernandez v. Perez, 937 F.2d 368, 371 (1991). "When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would `warrant a man of reasonable caution in the belief' that an offense had been committed." Beck v. Ohio, 379 U.S. 89, 96 (1964). Probable cause can be found as a matter of law if the undisputed facts demonstrate that a reasonable jury could find only that the officer had probable cause to make an arrest. Jones v. Webb, 45 F.3d 178, 182 (7th Cir. 1995). The police have probable cause to arrest an individual when "the facts and circumstances within their knowledge and of which they [have] reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense."Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir. 1994).
Setting aside all of the disputed facts and the occurrences after the time of arrest, the facts and circumstances within the knowledge of the officers prior to the arrest established probable cause for the arrest of Phelan. The critical facts before the officers at the time of the arrest were (1) the description of the car seen at the shooting; (2) the verbal physical description of the shooter; and (3) the photo lineup shown to Aranda. Although the officers were justified in considering these three facts in the aggregate, for the sake of clarity, we will analyze their validity separately.
There is some dispute over the description of the shooter's car, namely, whether it was described as having louvered vents on the hood and back window and whether the accents were described as gold or silver. However, there still remains a fairly detailed description of the car and a logical justification for connecting ownership to Phelan. First, it is undisputed that Officer Paladino was told by at least four separate witnesses that the shooter's car was black. Second, one of these witnesses further described the car as a Camaro IROC with a model year between 1988 and 1992. Third, another witness further described the car as a Chevy IROC with lettering on the door. Officer Paladino, possessing knowledge of these descriptions, came across a black IROC Camaro while investigating another crime. He inquired into who owned the car and was told it was Phelan. Furthermore, Phelan admits that at the time of the shooting he owned a 1989 black Chevy IROC with lettering on the side. Clearly, this information was sufficient to warrant a reasonable person in thinking that the owner of the car might have been involved in the Banuelos murder.
Officer Paladino also had a physical description of the shooter provided by Frazier during the initial investigation. The description was of a white male, 6 feet tall, 220 pounds, with long blond hair, standing outside a Chevy IROC. While Phelan argues that Frazier gave conflicting descriptions of the shooter and the car in his initial interview and in his trial testimony, all that is relevant in a probable cause analysis is the information Officer Paladino had prior to arrest. This relevant information is contained in Paladino's police report. Paladino made out a police report on March 24, 1994, two days after the shooting which reflected the above description from Frazier. It is settled law that the police may rely upon information provided by an ordinary citizen to establish probable cause to arrest. O'Mera v. City of Chicago, 1999 WL 1046409 at *9 (N.D.Ill. 1999); People v. Bean, 84 Ill.2d 64, 68-69 (Ill. 1981). There is no doubt that a reasonable officer with this description at his disposal could logically connect it to Phelan. At the time of the shooting, Phelan's hair was long in the back. He weighed between 200 and 220 pounds and was approximately 5 feet 11 inches tall. At the time Officer Paladino first saw Phelan in 1996, he was 5 feet 11 inches, weighed approximately 215 pounds and had light brown long hair (booking photograph of Plaintiff taken March 31, 1996). When Officer Paladino personally saw Phelan in 1996, he matched the description of the shooter in the Banuelos case. It was reasonable for him to infer a possible connection between Phelan and the shooting.
The third critical piece of evidence within Paladino's knowledge prior to the time of arrest was the positive identification of Phelan as the shooter by Aranda upon the execution of a photo lineup. Aranda testified at trial that, when he saw the picture of Phelan in the photo lineup, he was "90% sure" that he was the shooter but would like to see an actual lineup to be sure. Aranda then signed the back of the picture of Phelan indicating a positive identification. Phelan argues that the photo lineup was impermissibly suggestive and unreliable. The due process clause protects against the admission of evidence derived from suggestive identification procedures. Neil v. Biggers, 409 U.S. 188, 194 (1972). The standard for determining whether a photo identification is unreliable, which applies both to criminal appeals and § 1983 claims, is one which takes into account the "totality of the circumstances." Yattoni v. Oakbrook Terrace, 801 F. Supp. 140, 147 (N.D.Ill. 1992). Reliability of the eyewitness identification will be determined with reference to five factors: (1) "the opportunity of the witness to view the criminal at the time of the crime," (2) "the witness'[s] degree of attention," (3) "the accuracy of the witness' prior description of the criminal," (4) "the level of certainty demonstrated by the witness at the confrontation," and (5) "the length of time between the crime and the confrontation." Neil, 409 U.S. at 199-200. Here Phelan must show that the "totality of the circumstances" created an undue risk of misidentification. Oakbrook Terrace, 801 F. Supp. 140, 147 (N.D.Ill. 1992).
Phelan challenges Aranda's identification based on all five factors. First, Phelan argues that Aranda had less than 5 seconds to view the shooter and that this view was obstructed by the shooter's car and the fact that the shooter arguably had his back to Aranda. Second, Phelan argues that Aranda's attention was diverted because his girlfriend was a passenger in his car. Third, Phelan argues that, since this witness gave no prior description of the shooter to the police, he cannot satisfy the third prong of the test. Fourth, Phelan argues that, after Aranda viewed the photo line up, he stated that he thought the Phelan was the shooter but was not sure. Fifth, Phelan argues that the two year time span between the time of the shooting and photo lineup raises serious doubt as to its validity.
Phelan fails to argue that evidence which supports the position that Aranda lacked the opportunity to see the shooter, the requisite degree of attention, and adequate certainty upon viewing the lineup was available to Officer Paladino at the time of arrest. Rather his argument regarding these factors relies on testimony which did not come to light until later, during the course of trial. Therefore, we are left with the fact that there was no prior specific witness description from Aranda and that the identification occurred two years after the incident. These circumstances were obviously within the knowledge of Officer Paladino prior to the arrest. It is compelling that the identification took place two years after the incident. "[A] delay of `weeks or months between the crime and the viewing of the photograph' certainly tends to make an identification less reliable." Yattoni, 801 F. Supp. at 148, citingManson v. Brathwaite, 432 U.S. 98, 116 (1977). It is also relevant that Aranda gave no specific description of the shooter prior to the photo lineup. With respect to this factor Neil requires at least "rough accuracy" of a prior description by the witness. Yattoni, 801 F. Supp. at 148.
Phelan's arguments with regard to the Neil factors, while compelling when viewed in isolation, are not enough to defeat probable cause. The weakness in the proffered evidence with relation to the Neil factors is tempered by the fact that Officer Paladino had other reliable circumstantial evidence. Even taking the photo lineup out of the probable cause determination, Officer Paladino still had a fairly detailed description of the shooter along with a detailed description of the shooter's car. Phelan and his car matched these descriptions. This alone was enough to warrant Officer Paladino's belief that he had probable cause to arrest Phelan.
II. Malicious Prosecution
The existence of probable cause is an absolute bar to either a state or federal malicious prosecution claim. Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir. 1989). Therefore, because Phelan's arrest was supported by probable cause, as noted above, his malicious prosecution claim must fail. Fernandez v. Perez, 937 P.2d 368, 371 (7th Cir. 1991). Moreover, we need not reach the question of whether the officers were shielded by qualified immunity since the existence probable cause forecloses the necessity for a qualified immunity analysis.
CONCLUSION
For these reasons, defendants' motion for summary judgment is granted in full. Judgment is entered in favor of Richard Paladino and James O'Leary. This case is terminated.
It is so ordered.