United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
T. MOODY JUDGE UNITED STATES DISTRICT COURT
Newton Arnold alleges violations of his civil rights arising
out of a traffic stop which culminated in the seizure of more
than $11, 000 in cash. (DE # 12.) He brings this case against
defendant police officers Mark Brown, John Drummer, and Sonia
Atienzo as well as the City of Fort Wayne. Defendants have
moved for summary judgment on all of plaintiff's claims.
(DE # 24.) Plaintiff has filed a response (DE # 26), and
defendants have filed a reply (DE # 29.) For the following
reasons, defendants' motion for summary judgment is
granted in part and denied in part. Defendants have also
filed a related motion to strike pursuant to Rule 56. (DE #
30.) That motion is denied as moot.
FACTS AND BACKGROUND
summary that follows, the court refers only to undisputed
facts, or, if there is a dispute, notes that it exists and
relies on the version of the fact, or inference therefrom,
that is most favorable to plaintiff. This summary provides an
overview. Additional undisputed facts will be referred to in
the analysis that follows.
9, 2012, officers of the Fort Wayne Police Department were
conducting surveillance of a residence at 1328 Scott Street
in Fort Wayne, Indiana (“Scott Street”). (DE #
24-2 at 1; DE 24-1 at 1-2.) The surveillance operation was
initiated in response to a tip that officer Darrick Engelman
(“Engelman”) had received from a confidential
informant (“CI”). (DE # 24 -1 at 1.) According to
the CI, a man named Felton Walker (“Walker”)
resided at Scott Street and was arranging a large narcotics
transaction. (Id.) Specifically, the CI related that
Walker was hosting two out-of-town cocaine distributors and
he was attempting to raise money from his cocaine
distribution network to purchase several kilograms of
gave detailed information about the vehicles belonging to
Felton and the distributors, noting that Felton drove a black
Toyota Camry while the distributors would arrive in a large,
silver SUV with Nevada plates. (Id. at 2.) He
further indicated that once Felton had raised the money he
would follow the distributors to a nearby site where he would
pick up the cocaine before returning to Scott Street to divvy
it up among his network. (Id.)
on this information, Engelman and other detectives began
their surveillance of Scott Street. (Id.) During
their surveillance the detectives observed traffic in and out
of Scott Street that they believed was consistent with
narcotics trafficking. (Id. at 2-3.) Engelman was
also able to identify Felton on the premises. (Id.
at 3.) Later, Engelman's partner, Detective Strayer
reported that a van occupied by three men arrived at Scott
Street. (Id.) The three men entered the residence
and stayed for a few minutes before leaving. (Id.)
Engelman heard over the radio that Strayer followed the van
and that it was stopped for a traffic infraction and the
occupants were identified. (Id.) Engelman learned
that each of the three individuals “had prior
involvements with narcotics possession or trafficking”
(Id.), but otherwise there was no indication that
the three individuals were involved in any illegal activity.
thereafter, Engelman observed plaintiff Newton Arnold
(“Arnold”), arrive at Scott Street in a black
Cadillac with Peronica Hambright (“Hambright”).
(Id. at 4.) Engelman watched as Arnold accessed the
rear of the vehicle and apparently placed a large object
underneath his jacket before he knocked on the door and
entered Scott Street. (Id.) About five minutes
later, Arnold returned to his car and appeared to be holding
something in his groin area, which, in Engelman's
training and experience, was suggestive of narcotics
activity. (Id.) With Hambright now driving, Arnold
left Scott Street, where Engelman remained on surveillance.
car was next observed by defendant officer Mark Brown
(“Brown”). (DE # 24-2 at 1.) Brown was aware that
Scott Street was under narcotics surveillance and was
informed by the surveillance detectives that Arnold's car
had recently departed the residence. (Id. 1-2.) He
further states that he “was informed over the radio
that the Cadillac was observed traveling 38 miles per hour in
a posted 30 mile per hour zone.” (Id. at 2.)
Arnold, for his part, disputes that Hambright was speeding
while he was a passenger in the car that day. (DE # 26-1 at
2.) At that point, Brown stopped the vehicle for speeding.
(DE # 24-2 at 2.) When he initially approached the vehicle,
Brown observed that Arnold appeared to be visibly nervous.
the stop, defendant officer John Drummer
(“Drummer”), a canine handler, arrived on scene
with his police dog, Bodo (“K9 Bodo”). (DE # 24-3
at 1.) Drummer, with K9 Bodo, commenced a drug sniff of the
exterior of Arnold's car. (Id.) The parties
disagree about what happened next.
states that he watched as Drummer guided the dog around the
car two times and that the dog did not alert at any point.
(DE # 26-1 at 2.) After the search he says that Drummer put
K9 Bodo back in the squad car. (Id.) A short time
later, Arnold states that Drummer came back to the vehicle to
return the occupants' identification and insurance
information. (Id.) Drummer then said “slow
down and have a nice day. Ya'll are free to go, ”
but then quickly asked Hambright if he could search the
vehicle. (Id.) Hambright demurred that the car
belonged to Arnold, and when Drummer asked Arnold, he
responded “No - your dog didn't alert!”
(Id.) Drummer responded by saying “you
don't tell me how my dog alerts” and then continued
to ask permission to search the vehicle. (Id.)
Arnold repeatedly refused these requests until Drummer put
his hands on his service weapon and ordered Arnold out of the
officers' version of the search varies slightly. Drummer
states that he guided K9 Bodo around the car one time before
he turned to do another pass. (DE # 24-3 at 1-2.) Near the
passenger door (where Arnold was seated) Drummer states that
K9 Bodo's head “snapped back, ” giving
“several long sniffs” while his “tail went
up” (Id.) K9 Bodo then continued on to sniff
the rest of the exterior of the car. (Id.)
states that at this point he states that he informed Brown of
the “finding.” (Id.) Here Brown states
that he returned to the vehicle and returned the
identification to Hambright and told her to watch her speed.
(DE # 24-2 at 2.) He then states that he stepped back towards
his vehicle before pausing to ask Hambright if there was
anything illegal in the car. (Id.) He then asked
permission to search the car and Hambright replied that the
car belonged to Arnold. (Id.)
to Brown, Drummer was standing at the passenger door and
asked Arnold for consent which he declined (Id. at
2; DE # 24-3 at 2.) At this point Drummer told Arnold that K9
Bodo had alerted and again asked for permission to search the
car. (DE # 24-2 at 2; DE # 24-3 at 2.) After Arnold refused
multiple requests, Drummer ordered Arnold out of the car. (DE
# 24-2 at 2; DE # 24-3 at 2.) As Arnold exited the car,
Drummer states that he could see what appeared to be
marijuana “shake” (tiny bits of plant residue) on
the floor of the car. (DE # 24-3 at 2.)
point, Drummer performed a weapons pat down of Arnold and
felt a large, hard object in his groin area which made the
sound of plastic crinkling. (Id.) Arnold was
handcuffed and Brown searched in his pants and retrieved
roughly $11, 000 from his pants. (DE # 24-2 at 3; DE # 26-1
at 3.) Drummer then searched the vehicle but did not find any
narcotics. (DE # 24-3 at 2.)
money was seized and placed into evidence while Arnold and
Hambright were released without charging. (DE # 24-3.) Arnold
also alleges that he was publicly humiliated during the
search by having his pants (but not underwear) pulled down,
exposing his backside to traffic on a busy street.
(Id.) And furthermore, he asserts that one of the
officers groped his penis and testicles during the search.
(Id.) Officer Brown specifically contests
Arnold's version of the search and states that it took
place near his squad car with the door opened so as to shield
him from the view of passing traffic. (DE # 24-2 at 2.)
filed this suit pursuant to 42 U.S.C. § 1983 alleging
violations of his constitutional rights. He brings claims
against the defendant officers and the City of Fort Wayne for
false arrest and unreasonable search and seizure. In the
alternative he brings claims for the same violations based on
the bystander liability of the defendant officers as well as
claims for punitive damages.
Rule of Civil Procedure 56 requires the entry of summary
judgment, after adequate time for discovery, against a party
“who fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). In responding to a motion for summary
judgment, the non-moving party must identify specific facts
establishing that there is a genuine issue of fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986); Palmer v. Marion County, 327 F.3d 588, 595
(7th Cir. 2003). In doing so, the non-moving party cannot
rest on the pleadings alone, but must present fresh proof in
support of its position. Anderson, 477 U.S. at 248;
Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th
Cir. 1994). A dispute about a material fact is genuine only
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. If no reasonable jury
could find for the non-moving party, then there is no
“genuine” dispute. Scott v. Harris, 550
U.S. 372, 380 (2007).
court's role in deciding a summary judgment motion is not
to evaluate the truth of the matter, but instead to determine
whether there is a genuine issue of triable fact.
Anderson, 477 U.S. at 249-50; Doe v. R.R.
Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.
1994). In viewing the facts presented on a motion for summary
judgment, a court must construe all facts in a light most
favorable to the non-moving party and draw all legitimate
inferences and resolve all doubts in favor of that party.
NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234
(7th Cir. 1995). Importantly, the court is “not
required to draw every conceivable inference from the record
[in favor of the non-movant]-only those inferences that are
reasonable.” Bank Leumi Le-Israel, B.M., v.
Lee, 928 F.2d 232, 236 (7th Cir. 1991) (emphasis added).