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Newson v. Lopez

United States District Court, E.D. Wisconsin

February 26, 2018




         This 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.

         I. BACKGROUND

         Plaintiff 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.

         Officer 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 at ¶12.

         At 3:51 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.

         On 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 ¶ 16.

         After 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 tetrahydrocannabinol and had a total weight of over 4, 500 grams. Id. at ¶ 30. Officer Marshall and Kenny then left the residence. Id. at ¶ 31.

         As 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.

         On 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.

         On June 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.


         Summary 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).

         III. ...

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