United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
PHILIP P. SIMON, Chief District Judge.
deCarlos Freeman, a pro se prisoner, is suing Elkhart Police Officer Jason Ray in his individual capacity for monetary damages. Freeman alleges that Officer Ray violated his Fourth Amendment rights when Officer Ray searched and arrested him for public intoxication on private property where he was residing. Officer Ray filed a summary judgment motion arguing that the undisputed facts show that he had probable cause to arrest Freeman, that he is entitled to qualified immunity, and that there was not an illegal search. Because this case amounts to a swearing contest between Freeman and Officer Ray, a jury will have to determine who to believe.
Before taking up the summary judgment motion, there are three other motions that need to be addressed, which is where I begin.
911 Call Discovery Motion
On June 27, 2011, someone called the Elkhart Police Department and reported that a black male in a white shirt and blue pants (originally described as black), who had been "looking into windows and hanging around the old tax office, " was "heading toward the river thru [ sic ] the houses." DE 45-1 at 1. As a result of the call, Officer Ray was dispatched to the area of Sixth and Franklin Streets to investigate. DE 45-2 at 2. Freeman wants to know who made that phone call. DE 55. However, the identity of the caller is neither relevant nor likely to lead to relevant evidence. Freeman alleges that Officer Ray did not have reasonable suspicion to stop him. According to Freeman, he had been sitting on his porch for 10 to 15 minutes before Officer Ray made contact with him. DE 45-6 at 27. That is to say, he was on his porch before the 911 call was even made. Freeman speculates that the caller was an informant for the Elkhart Police Department who spoke to them "on a regular everyday basis." DE 55 at 1. Freeman says that because he was on his porch (and not looking in windows), that the caller must have been lying. But that's not the question here.
The only relevant question is whether Officer Ray had reasonable suspicion to stop Freeman based on what Officer Ray knew at the time, due in part to the 911 call or otherwise. To be clear, "[t]he reasonableness of the seizure turns on what the officer knew, not whether he knew the truth or whether he should have known more." United States v. Hicks , 531 F.3d 555, 560 (7th Cir. 2008) (quoting Reynolds v. Jamison , 488 F.3d 756, 765 (7th Cir. 2007)). What is relevant here, then, is what the dispatcher told Officer Ray.
Furthermore, reasonable suspicion does not require proof that Freeman was looking in windows, or that the caller was honest about having seen him. It requires only "some minimal level of objective justification for making the stop." Alabama v. White, 496 U.S. 325, 329-30 (1990) (quotation marks and citation omitted). This "is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." Id. at 330 (citation omitted). Thus, "[t]he issue is whether the tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." Id. at 326-27. "[R]easonable suspicion may be based on a telephone tip when the caller provided enough information to allow police to identify her and track her down later to hold her accountable if her tip proved false." United States v. Hicks, 531 F.3d 555, 559 (7th Cir. 2008) (quotation marks and citation omitted). Moreover, "when an officer relies on an emergency report in making a stop, a lower level of corroboration is required." Id. at 560.
Here, the police received a call from someone who gave his name, address and telephone number (which are all redacted in the record). DE 45-1 at 1. The caller said that he had personally seen a black male recently looking in windows. He said the suspect was wearing a white shirt and blue pants (again, originally noted in the Event Report as black pants). He said the suspect was walking toward the river and between houses. This call provided more than sufficient information to dispatch a police officer to investigate. That is to say, Officer Ray was justified in looking for a person matching the description and walking in that immediate area toward the river. Officer Ray says that Freeman matched that description when he saw him walking down the street toward the river and cutting between houses only minutes later. DE 45-2 at 2. If true, then Officer Ray's observations corroborated the caller's report and Officer Ray had reasonable suspicion to conduct an investigatory stop of Freeman. So if Officer Ray is telling the truth, Officer Ray's observations bolstered his reasonable suspicion, and the identity of the caller is irrelevant.
Freeman disputes Officer Ray's description of events. He says that he was not walking down the street and that he did not match the description of the suspect. If Freeman is telling the truth and he was sitting on the porch, then Officer Ray did not observe someone matching the description given by the 911 caller, and Officer Ray did not have reasonable suspicion to stop Freeman. The identity of the caller is still irrelevant.
The disputed issue here is whether Freeman was sitting on his porch or walking down the street toward the river. More broadly, the issue is whether he matched the 911 caller's description of the suspect as it was told to Officer Ray by the dispatcher. The identity of the caller is not relevant to either of those questions. The identity of the caller is not relevant to whether Officer Ray had reasonable suspicion to stop Freeman, because the ultimate question is what Officer Ray was told by dispatch and what Freeman was doing when Officer Ray showed up. Therefore, it is unnecessary to permit discovery about the identity of the caller and the discovery motion will be denied.
Objection to the Deposition of Colleen Ruiz
Freeman also objects to the use of the deposition of Colleen Ruiz because he was unable to attend due to his incarceration. DE 57. Defense counsel states that she unsuccessfully attempted to coordinate Freeman's participation with the litigation liaison at the prison where Freeman was housed before she scheduled the deposition. DE 48-1. She also notes that Freeman did not object even though she provided him with more than 30 days notice that the deposition had been scheduled. DE 35 and 59. However, she makes no mention of having conferred with either Freeman or the court in an effort to schedule the deposition of Ruiz in a manner that would have permitted Freeman to have participated. While I appreciate the effort that defense counsel made, this is disconcerting, as I suggested in my prior order. DE 54. While I am not unsympathetic to the difficulties involved in coordinating with a pro se prisoner, basic notions of due process require that all parties be afforded the opportunity to participate in depositions. No doubt defense counsel would find it unacceptable to be sent a notice of deposition without first having been directly contacted to coordinate her attendance. Indeed, doing so would violate this court's local rule which requires that "[a]ttorneys must try in good faith to schedule depositions to avoid calendar conflicts." N.D. Ind. L.R. 30-1(a). Incarceration is certainly a calendar conflict. Perhaps in some instances the conflict is so severe that it cannot be accommodated. However, without direct communication with the prisoner and the Court, it is unclear what might be possible in any given case.
Nevertheless, at this point in this case, I need not decide whether defense counsel's efforts were sufficient to meet the "good faith" standard of the local rules. The status of Colleen Ruiz's deposition is irrelevant to my decision on the motion for summary judgment. Though Ruiz' testimony provides additional evidence in support of both Officer Ray's and Freeman's version of events, it doesn't resolve the disputed material facts which preclude granting summary judgment, as described in detail ...