United States District Court, E.D. Wisconsin
MARQUIS D. NEWSON, Plaintiff,
MICHAEL LOPEZ and CHRISTINA MARSHALL, Defendants.
ORDERING GRANTING DEFENDANTS' MOTION FOR SUMMARY
William C. Griesbach, Chief Judge United States District
case raises the interesting question of whether police
officers who bring a dog trained to detect drugs, as well as
firearms, to assist in executing a search warrant authorizing
them to search for and seize firearms, violate the
homeowner's Fourth Amendment right against unreasonable
searches and seizures. Although the pro se plaintiff
has asserted other claims, they clearly lack any merit. On
the closer and more interesting question, I conclude on the
undisputed facts of the case that no violation occurred. I
therefore grant the defendants' motion for summary
judgment and deny the plaintiff's motion.
Marquis Newson brought this 42 U.S.C. § 1983 civil
rights action against two City of Milwaukee police officers,
alleging violations of his constitutional rights arising out
of his arrest for the crimes of felon in possession of a
firearm and possession of marijuana and cocaine with intent
to deliver. Newson is currently serving a state sentence at
Stanley Correctional Institution. He claims that two City of
Milwaukee Police Officers, Defendants Michael Lopez and
Christina Marshall, subjected him to an illegal search,
arrest and detention in violation of the Fourth Amendment,
and that the arresting officer failed to obtain a judicial
determination of probable cause for his arrest within 48
hours of his detention as required under County of
Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Newson
also asserted a Monell claim against Milwaukee
County; however, summary judgment was granted for Milwaukee
County on January 25, 2017, and it was dismissed from the
case at that time. This decision will address the remaining
claims against the City police officer defendants.
Michael Lopez and Officer Christina Marshall worked for the
Milwaukee Police Department (MPD). Officer Lopez is trained
in firearms investigations and enforcement. Officer Marshall
is trained as a K-9 handler. Both have extensive experience
with the MPD. Defendants' Proposed Findings of Fact
(“DPFOF”), ¶¶ 1-4, ECF No. 56. On
September 25, 2014, Officer Lopez swore to and signed an
affidavit in support of a search warrant of 2525-27 North
38th Street, Milwaukee, Wisconsin, which was the residence of
Marquis D. Newson. Id. at ¶ 5. The warrant
application was supported by an affidavit signed by Officer
Lopez which recounted the information he had received from a
confidential informant with a history of reliability, who
stated he had seen Newson, a convicted felon, in possession
of a firearm within the past 14 days at Newson's
residence located at 2525-27 North 38th Street. ECF No. 57-1.
Although the premises was an upper/lower duplex, the
informant told Officer Lopez that Newson had access to both
units and used it as a single family residence. ECF No. 57-2
p.m. on September 25, 2014, Milwaukee County Circuit Judge
Janet Protasiewicz authorized a no-knock search warrant for
premises. ECF No. 57-2; DPFOF at ¶ 6. The search warrant
described the objects of the search as: (1) “firearms,
ammunition, shell casings, receipts related to firearm/ammo
purchase;” (2) “items associated with firearms,
i.e., cleaning kits, holsters, ballistic vests, targets,
photographs/video depicting persons in possession of
firearms;” and (3) “documents, utility bills,
keys, writings, cell phones, computers, books, records,
receipts, notes, ledgers, receipts relating to the purchase
and/or possession of firearms and/or other documentary
evidence establishing who is in control of the
premises.” Id. at ¶ 7; see also
ECF No. 57-2.
September 26, 2014, at approximately 10:46 am, Officers Lopez
and Marshall, along with nine other officers executed the
search warrant on 2525-27 North 38th Street. Id. at
¶¶ 8-9. Officer Marshall also had Kenny, her K-9,
who was trained to search for firearms, narcotics, humans,
and the derivative odors of each. Id. at
¶¶ 9, 24. Upon the team's arrival, Newson, who
had been on the porch, fled into the house. Id. at
¶¶ 11-12. Newson was located in the kitchen of the
upper unit. Id. at ¶ 14. Officer Matthew Seitz
conducted a search of Newson's person and discovered a
sandwich baggie of white powdery substance in Newson's
right front coin pocket. Id. at ¶ 15. Newson
was taken into police custody at that time. Id.
Officer Lopez performed a field test on the white powdery
substance, which tested positive for cocaine. Id. at
the residence was cleared by the entry team, Officer Marshall
and Kenny performed a walk-through. Id. at ¶
22. Marshall knew the search warrant authorized the search
for firearms, ammunition, shell casings, and extra magazines.
Id. at ¶ 25. Officer Marshall gave Kenny the
verbal command and specific scent to search for a firearm.
Id. at ¶ 26. When searching through the house,
Kenny aggressively scratched a brown box that was lying on
the attic steps. Id. at ¶ 27. Kenny is trained
to perform this action when he detects the odor of narcotics.
Id. Officer Michael Wawarzyniakowski opened the
brown box and found a white five-gallon bucket with a closed
lid, which he removed to find a large quantity of what
appeared to be marijuana. Id. at ¶¶
28-29.Officer Wawarzyniakowski opened the box after Kenny
indicated he smelled narcotics because based on Officer
Wawarzyniakowski's training, he knows that firearms are
often kept with narcotics. Id. at ¶ 28. Officer
Lopez performed a field test on the substance in the bucket
and it tested positive for the presence of tetrahy
drocannabinol and had a total weight of over 4, 500 grams.
Id. at ¶ 30. Officer Marshall and Kenny then
left the residence. Id. at ¶ 31.
officers continued executing the search warrant, Officer
Wawarzyniakowski located a sandwich baggie in the kitchen
that had two smaller baggies each containing a powdery white
substance. Id. at ¶ 32. Officer Lopez field
tested the substances, which tested positive for cocaine.
Id. Officer Hunter located a zip lock bag in a
television box in the bedroom that appeared to contain
marijuana. Id. at ¶ 34. Officer Lopez field
tested the substance and it tested positive for the presence
of tetrahydrocannabinol. Id. Officer
Wawarzyniakowski located a handgun, with ammunition inside
it, in a trash can in the basement. Id. at ¶
36. Newson was transported to the jail for processing.
Id. at ¶ 37. Officer Lopez completed a probable
cause statement for the arrest at approximately 4:30 on
September 26, 2014. Id. at ¶ 38. The probable
cause statement noted that Newson was currently on probation
with the Department of Corrections (“DOC”) and
the DOC placed a hold on Newson. Id. at ¶ 29.
August 15, 2016, Newson filed this federal complaint alleging
violations of his civil rights during the search of his
house. Newson argues that Lopez and Marshall exceeded the
search warrant by using K-9 Kenny because Kenny was a
“drug dog” and there were no drugs described in
the search warrant. Additionally, Newson argues that because
the search was illegal, his arrest was also illegal. Lastly,
Newson argues that his detention by Lopez was unlawful
because he was detained for more than 48 hours before
receiving a judicial determination of probable cause. On June
16, 2017, Newson filed for summary judgment on these issues.
ECF No. 60.
13, 2017, Lopez and Marshall filed for summary judgment. ECF
No. 54. They argue that the search was within the limits of
the search warrant, which was valid. Furthermore, they argue
that Newson was lawfully arrested and detained. Lastly, they
argue that they are entitled to qualified immunity.
judgment is proper “if the movant shows 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; see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); McNeal v. Macht, 763 F.Supp.
1458, 1460-61 (E.D. Wis. 1991). “Material facts”
are those under the applicable substantive law that
“might affect the outcome of the suit.” See
Anderson, 477 U.S. at 248. A dispute over
“material fact” is “genuine” if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
“On review of cross-motions for summary judgment, [the
court] view[s] all facts and inferences in the light most
favorable to the nonmoving party on each motion.”
Lalowski v. City of Des Plaines, 789 F.3d 784, 787
(7th Cir. 2015).