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Goldberg v. Junion

United States District Court, S.D. Indiana, Indianapolis Division

September 23, 2016

PAUL GOLDBERG, Plaintiff,
v.
KEVIN JUNION and BILLY GLENN, Defendants.

          ENTRY ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

          RICHARD L. YOUNG, CHIEF JUDGE

         Plaintiff, 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 Junior[1]and 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.

         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 Defendants' motion.

         I. Facts[2]

         On July 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.).

         The tip 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).

         On 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).

         On July 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).

         Detective 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).

         Detectives 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. 16:15-19, 17:18-19).

         Plaintiff 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).

         Plaintiff 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).

         After 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).

         A judge 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).

         On July 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. Id.

         II. Legal Standard

         “Summary 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)).

         III. Discussion

         The 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 ...


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