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Russell v. Santos

United States District Court, E.D. Wisconsin

October 22, 2019

CLAY E. RUSSELL, Plaintiff,
v.
JOSEPH SANTOS and JOSEPH KROENING, Defendants.

          ORDER

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

         1. INTRODUCTION

         Plaintiff formerly resided in Holton Terrace, an apartment building for seniors and disabled adults, operated by the Housing Authority of the City of Milwaukee (“HACM”). Defendants are public safety officers employed by HACM. Plaintiff claims that they entered his apartment against his will, thereby violating his Fourth Amendment rights. Defendants have moved for summary judgment. For the reasons explained below, their motion must be granted.

         2. STANDARD OF REVIEW

         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 “genuine” dispute of material fact is created 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 construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016).

         In assessing the parties' proposed facts, the Court must not weigh the evidence or determine witness credibility; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chi. Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). Internal inconsistencies in a witness's testimony “‘create an issue of credibility as to which part of the testimony should be given the greatest weight if credited at all.'” Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1170 (7th Cir. 1996) (quoting Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)). The non-movant “need not match the movant witness for witness, nor persuade the court that [its] case is convincing, [it] 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).

         3. RELEVANT FACTS

         Viewed in a light most favorable to Plaintiff, the record evidence establishes the following material facts.[1] On September 6, 2018, HACM's alarm system reported that a smoke alarm had gone off in HACM's Merrill Park apartment building. Defendants were dispatched to check on the alarm, but were inadvertently directed to Holton Terrace. They arrived at Plaintiff's apartment and informed him of the smoke alarm issue. Plaintiff responded that no alarm had sounded and that everything was fine in his apartment. Plaintiff notes that there was no fire, smoke, or even a smell of either in his unit or the hallway outside of it. The area was also calm; residents were not, for instance, fleeing a fire.

         Defendants nevertheless pressed Plaintiff for permission to enter the apartment so that they could check his smoke alarm and look for damage to the property. Plaintiff resisted. Defendants told Plaintiff that they had a right to enter his apartment because the lease he signed required him to cooperate with HACM public safety officers. Plaintiff's lease provided that he needed to comply with the HACM Resident Handbook (the “Handbook”). The Handbook, in turn, told residents like Plaintiff that they were required to cooperate with public safety officers and not interfere with them in the performance of their duties.

         According to Plaintiff, Defendants also threatened him with a “violation” to coerce him to let them in. He does not explain exactly what that means. Defendants assert that Plaintiff eventually relented and allowed them in, while Plaintiff insists that he never gave them permission. Either way, Defendants did enter the unit and briefly looked around. Finding no evidence of fire and no problems with the smoke alarm, they soon left.

         4. ANALYSIS

         The Fourth Amendment protects the privacy of a person's home from unreasonable government intrusion. Hawkins v. Mitchell, 756 F.3d 983, 991-92 (7th Cir. 2014). A search of a dwelling without a warrant is presumptively unreasonable. Id. This is precisely what Defendants did in this case; they entered and searched Plaintiff's apartment, albeit briefly, without a warrant to do so.

         There are a number of exceptions to the warrant requirement. Defendants argue that two such exceptions are present in this case which would absolve them of Fourth Amendment liability. First, Defendants assert that Plaintiff voluntarily consented to the search. United States v. Rahman, 805 F.3d 822, 831 (7th Cir. 2015) (“Because a person may voluntarily waive his Fourth Amendment rights, no warrant is required where the defendant consents to a search.”). Defendants initially rely Plaintiff's agreement to abide by the policies contained in the Handbook as evidence of his consent to the search. Plaintiff counters that the Handbook says nothing about waiving his constitutional rights in their entirety. Next, Defendants say that Plaintiff also gave them “grudging” verbal consent to enter the unit that night. Plaintiff, as noted above, is adamant that he did no such thing. Defendants further argue that, assuming they had consent to search, the scope of their search was limited and reasonable.

         The Court concludes that Plaintiff has raised triable issues of fact on the matter of consent. The Handbook is rather vague with respect to the scope of the cooperation residents must give to public safety officers. It certainly falls short of expressly permitting warrantless searches of apartments at any time. A jury would need to determine the full import of the Handbook's language. As to verbal consent, this is a straightforward and ...


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