United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY
RICHARD L. YOUNG, CHIEF JUDGE
Paul Goldberg, was at his home in Indianapolis on July 25,
2013 when two men in civilian clothes knocked on his front
door. Plaintiff partially opened his door and stood in the
doorway to speak with the men. Defendants, Detectives Kevin
Juniorand Billy Glenn, explained that they were
real estate investors interested in purchasing his home. When
Plaintiff said his home was not for sale, Defendants revealed
that they were actually police officers who were
investigating him based upon probable cause that he was
growing marijuana in his home. The officers asked to come
inside the home so as to look around, but Plaintiff refused,
noting that they could come in once they obtained a search
warrant. Plaintiff stepped out of the doorway (back into the
interior of the home) and attempted to shut his door. But the
door would not shut; one of the officers had put his foot in
the doorway. Defendants then forced the door open, entered
the home, and arrested Plaintiff.
subsequently filed this suit, alleging false arrest, illegal
search, illegal entry, and excessive force. Defendants now
move for summary judgment on the false arrest, illegal
search, and illegal entry claims, arguing that they are
entitled to qualified immunity. Plaintiff does not oppose
summary judgment on the illegal search claim. Additionally,
the court finds that because Defendants had at least arguable
probable cause to arrest Plaintiff, they are entitled to
qualified immunity for the false arrest claim. However, they
are not entitled to qualified immunity for the illegal entry
claim. Accordingly, the court GRANTS IN PART
23, 2013, an anonymous citizen e-mailed a tip to Crime
Stoppers of Central Indiana, providing information about a
marijuana growing and dealing operation at the residential
duplex located at 3323 and 3321 Boulevard Place in
Indianapolis, Indiana. (Filing No. 36-2, Crime Stoppers Tip).
The tip was unusual in that it was “a lot more
detailed” than most tips. (Filing No. 36-3, Deposition
of Detective Kevin Junior 15:4-9). The tipster wrote the
duplex was owned by a Caucasian male named Paul Goldberg who
was 46 years old, 6' 4” tall, weighed 250 pounds,
had a shaved or bald head, and drove a white, Chevrolet full
sized cargo van. (Crime Stoppers Tip). According to the tip,
Plaintiff: (1) had at least 100 live marijuana plants growing
in the basements of both sides of the duplex, (2) sold the
bulk of his marijuana to a person named Jacob Sacks, (3)
generally had customers pick up their marijuana at his house,
but would sometimes deliver, (4) had a digital scale, (5)
sold anything from a few grams to a pound or two of
marijuana, and (6) had a knife but no guns. (Id.).
The tip also explained that the scent of marijuana permeated
from the house and was particularly noticeable at the back
window of the unit at 3321. (Id.).
was forwarded to Narcotics Detective Kevin Junior with the
Indianapolis Metropolitan Police Department
(“IMPD”) for investigation. (Junior Dep.
11:21-12:20). As part of his investigation, Detective Junior
checked the Marion County Assessor's website to see who
was listed as the owner of the property at 3323 and 3321
Boulevard Place, and it showed Plaintiff's name.
(Id. 18:10-14; Filing No. 36-4, Probable Cause
Affidavit (“PC Aff.”) at 1). Detective Junior
also obtained the photograph associated with Plaintiff's
driver's license from the Indiana Department of Motor
Vehicles, so that he would recognize Plaintiff if he saw him.
(Junior Dep. 28:3-7).
either July 23 or July 24, 2013, Detective Junior drove to
the duplex to conduct surveillance. (Id. 15:11-16:7,
20:25-21:3). While there are two separate units, both units
share a common porch. (Id. 25:21-22). Detective
Junior observed that the south unit appeared to be vacant,
but that the north unit appeared to be lived in. (PC Aff. at
1). Based on his training and experience as a narcotics
detective, he knew that it is common for marijuana growers to
use an empty residence for their grow operations because
marijuana grow operations use a lot of electricity, and high
electricity use, as evidenced by a high electric utility
bill, can tip off law enforcement. (Id. at 2).
Consequently, it appeared to him that the south unit could be
being used in connection with a marijuana grow operation.
(Id.). While conducting surveillance, he saw a white
van leave the residence. (Junior Dep. 16:10). He also talked
to a neighbor who confirmed that the man who owned the duplex
was named “Paul.” (Id. 17:11-25).
Detective Junior then walked down a common walkway on the
south side of Plaintiff's property and smelled raw
marijuana. (Id. 19:5-23).
25, 2013, Detective Junior returned to Plaintiff's
neighborhood with fellow IMPD Narcotics Detectives Billy
Glenn and Gary Riggs. (Id. 21:20-23; PC Aff. at 1).
Detective Riggs stayed in his car so that Plaintiff would not
feel intimidated by so many people on his porch, and to be
available in the event that Detectives Junior and Glenn
needed help. (Junior Dep. 24:21-25:8). As soon as Detectives
Junior and Glenn got out of their car and began walking
towards Plaintiff's duplex, they could smell fresh
marijuana. (Id. 25:14-18). The smell got stronger as
they got closer to the duplex. (Id. 25:19-20). When
they stepped onto the porch on the south side of the duplex,
Detective Junior concluded that there “should be a
large sum of fresh marijuana in the south side of the
[duplex] because of how strong the smell was.”
(Id. 26:2-5). They then walked to the north side of
the duplex, the unit in which they believed Plaintiff lived.
(Id. 27:18-19). As they stood in front of the door
to the north unit, they could smell burning marijuana coming
from behind the door. (Id. 27:19-21).
Junior knocked on the door, and Plaintiff answered.
(Id. 28:9-11). Plaintiff stood in front of the door,
which opens inward, “in the frame of the door on the
threshold” (i.e., “in the doorway”).
(Filing No. 36-5, Dep. of Plaintiff 12:6-10, 13:22- 14:8,
14:25-15:1). When Plaintiff opened the door, the detectives
smelled burning marijuana coming from inside the house.
(Junior Dep. 28:14-18).
Junior and Glenn were dressed in plain clothes. (Plaintiff
Dep. 12:10-18). They told Plaintiff that they were investors
interested in buying his property, and they asked if they
could take a look inside. (Id. 12:24-13:13). After
he told them that the property was not for sale, the
detectives then revealed themselves to be law enforcement and
one of them quickly flashed his badge, which did not allow
Plaintiff an opportunity to see it well. (Id.
13:9-21, 15:10-16:4). The detectives said, “The
game's up. We're the police. We smell burning
marijuana, and we need to take a look inside.”
(Id. 15:10-13). The detectives asked Plaintiff if he
would consent to a search of his home. (Id.
16:10-17:1). He told the detectives that they would need to
get a search warrant, at which point Defendants said his
house was being put on “lockdown.” (Id.
then “turned around to go back inside because [he] was
pretty much done with the conversation.” (Id.
18:10-11). Because he was “on the outside of the door,
” he had to take “one step back” to go
“back into the house.” (Id. 18:24-19:5).
(See Filing No. 42-3, Declaration of Plaintiff
¶ 8 (“I then stepped back from the doorway into
the house . . . .”)). The officers never told him not
to go inside. (Id. ¶ 13). Additionally, up to
this point, the officers had not touched him or told him he
was under arrest. (Id. ¶¶ 9, 14).
got behind the door and tried to close it, but the door would
not shut because one of the detectives had put his foot on
the threshold between the door and the frame. (Plaintiff Dep.
19:8-20:11). Then “[t]he door crashed in” and
Plaintiff “was hit with something in the face.”
(Id. 20:13-19). Plaintiff testified that it
“felt like a fist in [his] face, ” but that it
might have been the door. (Id. 20:21-21:1). The
impact caused him to spin, stumble, and fall facedown onto a
couch that was situated just inside the door. (Id.
21:3-22:5, 24:6-11). As he lay on the couch, he felt knees on
his back, and then one of the detectives wrapped an arm
around his neck and began to choke him. (Id.
22:6-23:3). The detectives yelled, “Stop resisting,
” but he was not resisting. (Id. 23:14-17).
Plaintiff felt as if “all the air came out of [his]
lungs” and that he was on the verge of losing
consciousness. (Id. 24:24-25, 25:18). Eventually,
the detectives sat him up on the couch and placed him in
handcuffs. (Id. 26:20-22).
Plaintiff was secured in handcuffs, Detective Junior, and
possibly Detective Riggs as well, then conducted a protective
sweep of the house. (Id. 28:13-15; Junior Dep.
42:14-17). During the protective sweep, Detective Junior saw
trays of dried marijuana, live marijuana plants, and drug
paraphernalia all over the house in plain view. (Filing No.
36-6, Affidavit of Detective Junior ¶ 22; see
Filing No. 44-1, Exhibits F (marijuana cigarette), G (trays
of dried marijuana), I, J, K, L (marijuana plants, grow
lights, fans, filters, and thermometer), and N (plastic
baggies)). Detective Glenn and Detective Riggs, who by that
time had left his car and come to assist, stayed at the house
with Plaintiff while Detective Junior went to apply for a
search warrant. (Junior Aff. ¶ 16).
issued a search warrant. (Filing No. 36-7, Search Warrant).
The Indiana State Police drug eradication team came and
searched the property. (Junior Dep. 49:18-21).
26, 2013, Plaintiff was charged with dealing in marijuana,
possession of marijuana, maintaining a common nuisance, and
resisting law enforcement. See State of Indiana v.
Goldberg, No. 49G14-1307-FD-048773 (Marion Super. Ct.
2014). All charges were dismissed on April 29, 2014.
judgment is proper where, construing facts and drawing
inferences in the light most favorable to the non-moving
party, ‘there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.'” Novoselsky v. Brown, 822 F.3d 342,
348-49 (7th Cir. 2016) (quoting Fed.R.Civ.P. 56(a)).
court construes Plaintiff's Complaint as advancing four
counts: (1) false arrest, (2) illegal search, (3) illegal
entry, and (4) excessive force. Defendants move for summary
judgment on only the first three counts. Plaintiff did not
respond to Defendants' arguments regarding the illegal
search claim, and has therefore abandoned the claim. See
Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir.
2010) (“Failure ...