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Reardon v. Schossow

United States District Court, E.D. Wisconsin

September 24, 2019



          J.P. Stadtmueller, U.S. District Judge.

         This case arises from a police department’s attempt to thwart underaged drinking in Mequon. On October 30, 2018, Todd Michael Reardon and his son, John Robert Reardon (collectively “Plaintiffs”), filed a complaint alleging that the Mequon City Police (“MCP”) violated their constitutional rights when MCP conducted an unlawful search of their home. (Docket #1). On October 31, 2015, MCP responded to an anonymous tip about underaged drinking. They went to Plaintiffs’ home, searched the curtilage, and obtained a search warrant based, in large part, on open bottles of alcohol that were seen during the curtilage search. When MCP finally executed the warrant, there was hardly a bacchanalian hotbed of criminal activity. The fruits of their labor resulted in a social host violation to the younger Reardon, which was ultimately dropped, and three underaged drinking citations to his guests. Plaintiffs filed this civil action in federal court, alleging an unconstitutional search of the curtilage of the home, an unconstitutional search of the home based on an invalid warrant, supervisory liability for failing to intervene in the constitutional violations, and an unconstitutional policy directed at quelling underaged drinking. The parties filed competing motions for summary judgment, which are now fully briefed. (Docket #16, #24). For the reasons explained below, the Plaintiffs’ motion will be granted in part, and the Defendants’ motion will be granted in part.


         Federal Rule of Civil Procedure 56 provides that the court “shall grant summary judgment 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(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the nonmovant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chi. Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment “need not match the movant witness for witness, nor persuade the court that her case is convincing, she need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         2. RELEVANT FACTS

         In 2015, the City of Mequon had an anonymous, now-defunct tip hotline called “TIP411.” The hotline received false tips as well as true tips. The parties dispute whether this hotline was part of a larger campaign to prohibit underaged drinking.

         On October 31, 2015, at approximately 10:19 p.m., Mequon police received an anonymous message through the “Tip411” app, which alleged that teenagers were drinking alcohol at Plaintiffs’ residence. Specifically, the message read, “Many students at my school were bragging about how they planned to go to J.R.’s house on halloween [sic] night to drink and smoke. I am nervous that someone is going to drink and drive (because most homestead kids do it and don’t worry about the consequences.).”

         On the basis of this tip, at approximately 10:30 p.m., Mequon police dispatched squad cars to Plaintiffs’ residence, whereupon they observed four cars in the driveway and one car parked in the street. Officer Kristin Sudinski-Toryfter (“Toryfter”), the primary responding officer, knocked on the door and rang the doorbell, but nobody answered. She attempted to call John and Todd Reardon on their cell phones, but neither responded. She also called the suspected driver of one of the parked cars, but again, nobody answered.

         The lights inside the residence were turned on, allowing officers to see inside relatively well. Above the front door of the home, an expansive, half-moon window looked onto an upstairs landing, where the officers observed several young people scattering, crawling up the stairs, and peeking out at them. The officers also heard people talking, and various doors and windows inside the house closing. Everyone appeared to be a minor, and there did not seem to be any adults present.

         While some of the officers, including Toryfter, were at the front door, two other officers, including Officer Matthew Schossow, (“Schossow”), the acting shift supervisor, went around the side of the house to the backyard as part of an effort to secure the perimeter. The officers were concerned that people might attempt to flee out the back door. The house is large and sits on an amply sized lot with a considerable set-back from the street. There are no gates surrounding the home. There are, however, bushes, shrubs, and trees landscaping the plot of land. In the backyard, which is hidden from public view and accessible only from the end of the driveway and the home itself, a brick pathway passes by a window near the rear patio door. The brick pathway leads from the top of the driveway around to the back of the home. The parties dispute whether the blinds to this window were partially or fully drawn, whether Schossow stepped off the walkway and peeked into the home through a crack in the blinds, and which window he looked into, but these disputes are immaterial. While Schossow was inspecting the back of the home, he saw, through a gap in the blinds, a can of Pabst Blue Ribbon on the end-table, and an open bottle of vodka on the floor, along with other non-alcoholic beverages. Toryfter followed him to the backyard and stepped closer to the window, confirming the contraband. Neither officer actually saw any of the young people drinking alcohol.

         After seeing the alcohol containers, and in light of the fact that the young people refused to answer the door, Toryfter called the city’s district attorney, Adam Gerol, who told Toryfter to apply for a search warrant. Toryfter filled out the search warrant application and completed the corresponding affidavit in support thereof using a pair of templates designed to expedite the process during an investigation. Schossow did not review the warrant or the paperwork. Toryfter attested that there were items to be searched in the house that included alcoholic beverages and persons under the age of 21, both of which were potentially evidence of a violation of Wis.Stat. § 125 et seq., which prohibits furnishing alcohol to underaged persons. She also stated that there was a party at the house “which possibly included guests under the age of 21 consuming intoxicants or illegal drugs, ” that there were “numerous vehicles” outside the home, that she had “observed intoxicants within the premises, having seen them. . .through the window. . .of the residence, ” and that “young people scatter[ed] or hid[] when it appeared that the officers had been noticed or recognized.” (Docket #27-2 at 2). At no point did Toryfter represent that she saw the young people consuming intoxicants inside the premise. After she filled out the paperwork, she drove to Ozaukee County Circuit Court Judge Sandy Williams’s home, where Judge Williams reviewed the affidavit and they discussed the warrant together.

         At approximately 1:00 a.m. on November 1, 2015, Judge Williams issued a search warrant for the house. Toryfter relayed this to the officers by radio as she drove back to Plaintiffs’ residence. Schossow participated in the warrant’s execution by knocking on the front door, announcing his presence, and proceeding to find entry into the home. In the nearly three hours between when the officers first arrived at the home and when they executed the search warrant, they did not see anyone entering or exiting the property. They also did not interact with any of the teenagers, or see anyone fighting, vomiting, stumbling, or otherwise acting inebriated.

         The officers executed the warrant at approximately 1:15 a.m. Pursuant to the warrant, they detained, searched, and cited the younger Reardon for a social host infraction, in violation of the City of Mequon’s “social host” ordinance, which prohibits people from hosting gatherings where underaged drinking will occur. See Mequon City Ord. Ch. 46, art. VI, § 157(c). The charge was ultimately dropped. The officers issued citations to three other minors for underaged drinking.

         Schossow and Toryfter each have experience working in the field, and have been properly trained in search and seizure law and procedures. They receive updates to their training on an annual basis, and have resources at their disposal regarding how to properly effect searches.

         3. ANALYSIS

         Plaintiffs and Defendants each move for summary judgment. There are two purportedly unconstitutional searches here: first, the warrantless search of the curtilage; and second, the search of the home based on an invalid warrant. Plaintiffs bring a claim against both Schossow and Toryfter for the warrantless search of the curtilage, but only bring a claim against Toryfter for the invalid warrant. The Court notes that obtaining an invalid warrant does not intrinsically give rise to a constitutional violation; it is in the execution of the invalid warrant that the Plaintiffs’ rights are implicated. For the reasons explained below, summary judgment will be decided in favor of Plaintiffs on both Fourth Amendment violations-the curtilage claim against Toryfter and Schossow, and the invalid warrant claim against Toryfter. Plaintiffs bring a claim against Schossow for supervisor liability, claiming that he failed to stop the obtention and execution of the invalid warrant. This claim is improperly pled and will be dismissed. Assuming that Schossow was personally involved in obtaining and executing the warrant, he likely would have been directly liable for the Fourth Amendment invalid warrant claim discussed in Section 3.2, infra, had it been brought against him. He was not, however, liable in a supervisory capacity for failing to ...

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