United States District Court, N.D. Indiana, Fort Wayne Division
SHONDRA ROYAL, personal representative of the Wrongful Death Estate of LANCE EDWARD ROYAL, JR., Plaintiff,
CITY OF FORT WAYNE, CAMERON NORRIS, JONATHAN BOWERS, KURT FRANCEUS, JUAN GUTIERREZ, and SHANE HEATH, Defendants.
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on Defendants' Motion for
Summary Judgment [DE 29], filed by Defendants City of Fort
Wayne, Cameron Norris, Jonathan Bowers, Kurt Franceus, Juan
Gutierrez, and Shane Heath on June 5, 2018. Plaintiff Shondra
Royal, personal representative of the Wrongful Death Estate
of Lance Edward Royal, Jr., filed a response on June 24,
2018, and Defendants filed a reply on July 5, 2018. This
matter is also before the Court on Defendants' Motion to
Strike “Plaintiff's Appendix: I. Local Rule 56-1
Statement of Genuine Issues” [DE 34], filed by
Defendants on July 5, 2018, and fully briefed as of July 10,
2018. For the reasons set forth below, the Court grants in
part and denies in part the Motion for Summary Judgment.
Shondra Royal, personal representative of the Wrongful Death
Estate of Lance Edward Royal, Jr., filed a Complaint in this
Court on June 15, 2017, against Defendants City of Fort
Wayne, Detective Cameron Norris, Detective Sergeant Jonathan
Bowers, Detective Kurt Franceus, Detective Juan Gutierrez,
and Detective Shane Heath. (Compl. ¶¶ 5, 6). The
officers are named in their individual capacities, and
Plaintiff alleges that they were acting under color of law
for purposes of the constitutional claims and within the
scope of their employment for purposes of the Indiana state
law tort claims. (Compl. ¶ 6). Plaintiff alleges that
Defendants caused the death of Lance Edward Royal, Jr.
through the denial of post-arrest medical care, bringing
claims under 42 U.S.C. § 1983, the Indiana Wrongful
Death Act, and Indiana state law for claims of assault and
battery and of false imprisonment. (Compl. ¶¶ 1,
2). Defendants filed an Answer on July 11, 2017.
parties filed forms of consent to have this case assigned to
a United States Magistrate Judge to conduct all further
proceedings and to order the entry of a final judgment in
this case. Therefore, this Court has jurisdiction to decide
this case pursuant to 28 U.S.C. § 636(c).
Federal Rules of Civil Procedure require that a motion for
summary judgment be granted “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). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, 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). “Summary
judgment is appropriate when no material fact is disputed and
the moving parties are entitled to judgment as a matter of
law, meaning that no reasonable jury could find for the other
party based on the evidence in the record.” Carman
v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014).
seeking summary judgment bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, that it believes demonstrate the
absence of a genuine issue of material fact. See
Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56 (a), (c). The
moving party may discharge its initial responsibility by
simply “‘showing'-that is, pointing out to
the district court-that there is an absence of evidence to
support the nonmoving party's case.”
Celotex, 477 U.S. at 325; see also Spierer v.
Rossman, 798 F.3d 502, 508 (7th Cir. 2015). When the
nonmoving party would have the burden of proof at trial, the
moving party is not required to support its motion with
affidavits or other similar materials negating the
opponent's claim. Celotex, 477 U.S. at 323, 325;
Spierer, 798 F.3d at 507-08.
the moving party puts forth evidence showing the absence of a
genuine dispute of material fact, the burden shifts to the
non-moving party to provide evidence of specific facts
creating a genuine dispute.” Carroll v. Lynch,
698 F.3d 561, 564 (7th Cir. 2012). The non-moving party
cannot resist the motion and withstand summary judgment by
merely resting on its pleadings. See Fed. R. Civ. P.
56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d
764, 769 (7th Cir. 2015) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). 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 in favor
of that party. See Anderson, 477 U.S. at 255;
McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765
(7th Cir. 2014). A court's role is not to evaluate the
weight of the evidence, judge the credibility of witnesses,
or determine the truth of the matter, but instead to
determine whether there is a genuine issue of triable fact.
See Anderson, 477 U.S. at 249-50.
ask the Court to strike Plaintiff's Local Rule 56-1
Statement of Genuine Disputes, arguing that the Statement of
Genuine Disputes as a whole is an impermissible extension of
Plaintiff's brief because it contains argument of
counsel, analysis of exhibits, interpretations of video
recordings, unfounded assertions, and citation to case law.
Defendants also argue that the cited portions of Porshea
Gentry's deposition testimony should be stricken because
Ms. Gentry's testimony contradicts what is seen and heard
on the video recordings. However, as noted by Plaintiff,
Defendants have not identified any particular section, page,
sentence, or word from Plaintiff's Statement of Genuine
Disputes that they contend is improper.
party opposing summary judgment-Plaintiff in this case-is
required by local rule to file a “Statement of Genuine
Disputes, ” either as part of the response brief or an
appendix, that “identifies the material facts that the
party contends are genuinely disputed so as to make a trial
necessary.” N.D. Ind. L.R. 56-1(b)(2). Plaintiff's
Statement of Genuine Disputes does just that, identifying
portions of Defendants' Affidavits, the four video
recordings, and various other documents produced in discovery
that Plaintiff contends demonstrate a material question of
fact as to whether the defendant officers were on notice of
Mr. Royal's serious medical need, whether it was
objectively reasonable for the officers not to provide Mr.
Royal with medical care, and whether the officers had been
properly trained by the City of Fort Wayne.
Plaintiff's discussion of the video evidence, the Court
has reviewed the video recordings and included in the facts
below Plaintiff's description of the video recordings as
supported by the cited portions of the video recordings.
Defendants do not identify any inaccuracies in
Plaintiff's descriptions or offer any alternate
descriptions. It is not clear what other means Plaintiff has
of identifying facts from a video for purposes of a Statement
of Genuine Disputes. As for any argument, characterization,
or citation to law that should have been included in the
brief, the Court disregards those portions of the Statement
of Genuine Issues.
the Court considers Defendants' request to strike
Plaintiff's citation to Ms. Gentry's deposition on
the basis that Ms. Gentry's testimony contradicts what is
seen and heard on the video recordings. Defendants correctly
note that, “[w]hen opposing parties tell two different
stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.” Scott v.
Harris, 550 U.S. 372, 381 (2007) (discussing videotape
evidence). However, Defendants do not explain how Ms.
Gentry's deposition testimony is contradicted by the
video recordings, nor do they identify the contradictory
portions of the video recordings.
on the foregoing, the Court denies the Motion to Strike.
approximately 11:04 a.m. on June 25, 2015, a traffic stop was
conducted that led to the arrest of Lance Royal by City of
Fort Wayne detectives. Detective Gutierrez conducted the
traffic stop of the vehicle Mr. Royal was driving to arrest
the passenger, Porshea Gentry, for whom an active arrest
warrant had been issued related to an on-going narcotics
investigation. At the time he was removed from the car, Mr.
Royal was chewing cocaine, which the detectives ordered him
to spit out; an additional quantity of cocaine was recovered
from the car. Ms. Gentry, the passenger, was transported to
the hospital from the scene of the traffic stop. Mr. Royal
was transported directly to an interview room at the Fort
Wayne police operations center, arriving at approximately
11:48 a.m. After being found on the floor having what
appeared to be a seizure, Mr. Royal was taken from the
interview room at 12:32 p.m. to receive medical care but died
from a cocaine overdose while in custody. The five defendant
officers were involved to varying degrees in the traffic stop
and Mr. Royal's arrest and detention.
Detective Juan Carlos Gutierrez
December 15, 2003, Detective Juan Carlos Gutierrez became a
police officer for the City of Fort Wayne. (ECF 29-1, ¶
2). On May 21, 2018, the date of his Affidavit, Detective
Gutierrez held the position of Detective Vice and Narcotics.
Id. In his Affidavit, Detective Gutierrez provides
the following information.
25, 2015, Detective Gutierrez was on duty as a detective for
the Fort Wayne Police Department, wearing a full police
uniform and driving a fully-marked police car. Id.
at ¶ 3. At approximately 11:04 a.m., Detective Gutierrez
conducted a traffic stop on a 2007 red Dodge Charger at 8200
Bridgeway Drive in Fort Wayne, Indiana, related to an
on-going narcotics investigation. Id. at ¶ 4.
Detective Gutierrez went to the passenger side of the vehicle
based on information that the target suspect, Porshea Gentry,
was in the passenger seat. Id. at ¶ 5. He
approached the vehicle, opened the door, and took Ms. Gentry
out of the vehicle. Id. at ¶ 6. Detective Shane
Heath approached and helped handcuff Ms. Gentry outside the
vehicle. Id. at ¶ 7. Once handcuffed, Ms.
Gentry was escorted by Detective Gutierrez to the back seat
of his squad car. Id. at ¶ 8.
Cameron Norris removed the driver, later identified as Mr.
Royal, from the vehicle. Id. at ¶ 9. Mr. Royal
was put on the ground and was then escorted behind Detective
Gutierrez's squad car. Id. at ¶ 10.
Detective Gutierrez states that Mr. Royal appeared to be
chewing something, and Detective Gutierrez could hear
Detective Norris telling Mr. Royal to “spit it
out.” Id. Detective Gutierrez took two
pictures of Mr. Royal's face. Id.
Wayne police officer Alisha Smith was contacted to conduct a
pat down search of Ms. Gentry. Id. at ¶ 11.
When Ms. Gentry stated that she did not feel well, Detective
Gutierrez opened the door to his squad car and allowed Ms.
Gentry's feet to come out to the pavement; Ms. Gentry
started spitting. Id. at ¶ 12. Detective
Gutierrez and Sergeant Jon Bowers called the paramedics.
the paramedics arrived, Detective Gutierrez told them that
Ms. Gentry was feeling nauseous and that Mr. Royal had been
chewing something. Id. at ¶ 13. The paramedics
spoke to both Ms. Gentry and Mr. Royal and decided to
transport Ms. Gentry to the hospital. Id. at ¶
14. Detective Gutierrez never had any physical contact with
Mr. Royal. Id. at ¶ 15. Detective Gutierrez
processed the scene and took photographs; the incident was
captured on his in-car camera under Control No. 15F080727.
Id. at ¶¶ 16-17; see also (Def.
Detective Cameron Norris
Cameron Norris became a police officer for the City of Fort
Wayne on August 27, 2010, and on May 24, 2018, he held the
position of Vice and Narcotics Detective. (ECF 29-2, ¶
2). Detective Norris provides the following information in
25, 2015, Detective Norris was an undercover Vice and
Narcotics Detective, was on duty, and was involved in a
narcotics investigation. Id. at ¶¶ 3-4.
Detective Heath was conducting surveillance in the area of
8616 Lakeside Drive, Fort Wayne, Indiana, when Detective
Heath saw the suspect-Ms. Gentry- and a male exit the
apartment where Ms. Gentry was known to stay and get into a
red Dodge Charger. Id. at ¶ 4. Detective Norris
responded to the area to assist with the surveillance.
Id. at ¶ 5. Detective Norris then heard that
Detective Gutierrez was conducting a traffic stop in the 8200
block of Bridgeway Drive. Id. at ¶ 6. Detective
Norris drove to the traffic stop where he observed Detective
Gutierrez exit his vehicle, approach the passenger side of
the red Dodge Charger, and attempt to remove the female
passenger believed to be Ms. Gentry. Id. at ¶
7. Detective Norris observed Ms. Gentry struggle with
Detective Gutierrez; he put the information “over the
air” that Detective Gutierrez was struggling with a
female on the passenger side of the vehicle. Id.
Norris then put on his Fort Wayne Police Department narcotics
vest with identifiers and approached the driver's side of
the vehicle. Id. at ¶ 8. Detective Norris had
his weapon at the low ready position and observed a male
driver, later identified as Mr. Royal, digging in his pocket
or the center console area of the vehicle. Id. at
¶ 9. Detective Norris opened the driver's side door
and removed Mr. Royal by his left arm and put him in the
prone position on the ground. Id. at ¶ 10. As
he was putting Mr. Royal on the ground, Detective Norris
observed Mr. Royal chewing and observed a white powder and
rock-like substance on Mr. Royal's face. Id.
Detective Norris repeatedly yelled at Mr. Royal, “Spit
it out, spit it out.” Id. at ¶ 11.
Detective Norris held Mr. Royal's jaw to prevent him from
chewing or swallowing any contraband. Id. Detective
Norris states that Mr. Royal was struggling with him and at
one point Detective Norris' finger was in Mr. Royal's
mouth. Id. at ¶ 12. A short time later,
Sergeant John Bowers approached Id. Mr. Royal spit
out a little bit of crack cocaine but was still chewing.
Id. Both Sergeant Bowers and Detective Norris yelled
at Mr. Royal to “Spit it out.” Id. Mr.
Royal began to spit out small pieces of crack cocaine.
Norris asked Mr. Royal how much he had eaten or chewed and
Mr. Royal replied, “Just a pill.” Id. at
¶ 13. Sergeant Bowers and Detective Norris helped Mr.
Royal to his feet and walked him back to the trunk area of
Detective Gutierrez's patrol car. Id. Detective
Norris told Mr. Royal to open his mouth and stick out his
tongue. Id. at ¶ 14. Sergeant Bowers and
Detective Norris told Mr. Royal to tell them if he swallowed
anything and that, if he had, it would not affect the
criminal charges. Id. They told Mr. Royal that they
were worried about his health and that they did not want him
to have a heart attack. Id. Mr. Royal stated that he
was okay and that he did not swallow anything. Id.
at ¶ 15. To Detective Norris, Mr. Royal did not appear
concerned with having eaten or swallowed any narcotics.
Id. The paramedics were called to the scene to
examine Ms. Gentry; while at the scene, the paramedics
“checked out” Mr. Royal and determined that he
did not need to be transported to the hospital. Id.
at ¶ 16.
Sergeant Jonathan Bowers
August 26, 1994, Jonathan Bowers became a police officer for
the City of Fort Wayne. (ECF 29-3, ¶ 2). On November 8,
2010, he was promoted to Sergeant, and, on August 11, 2017,
he was promoted to Lieutenant. Id. at ¶ 2. On
June 25, 2015, he was a Sergeant Vice and Narcotics and
worked in an undercover capacity. Id. at ¶ 3.
For purposes of this motion, the Court will refer to him as
Sergeant Bowers. Sergeant Bowers provides the following
information in his affidavit.
25, 2015, Sergeant Bowers was involved in an ongoing
narcotics investigation. Id. at ¶ 4. He went to
8616 Lakeside Drive where the target of the investigation,
Ms. Gentry, was known to stay. Id. While conducting
surveillance on a white Caprice sitting outside the address,
Sergeant Bowers was advised by Detective Heath that Ms.
Gentry exited 8616 Lakeside Drive and got into the passenger
side of a red Dodge Charger and that a male got into the
driver's side of the vehicle. Id. at
¶¶ 5-6. The Dodge Charger began traveling through
the apartment complex to leave; Sergeant Bowers spoke to case
agent Detective Tina Blackburn who advised that the vehicle
was known to be involved with Ms. Gentry. Id. at
¶ 7. Detective Gutierrez conducted a traffic stop of the
vehicle, and Detective Heath, Detective Norris, Detective
Kurt Franceus, and Sergeant Bowers drove to the traffic stop
as backup. Id. at ¶ 8. Sergeant Bowers
activated his body camera en route. Id. at ¶ 9.
arrived, Sergeant Bowers observed Detectives Gutierrez and
Heath taking a female believed to be Ms. Gentry into custody
on the passenger side of the vehicle. Id. at ¶
10. Sergeant Bowers observed Detective Norris in the process
of detaining the driver, later identified as Mr. Royal, on
the driver's side. Id. at ¶ 11. As Sergeant
Bowers approached the driver's side of the vehicle, he
heard Detective Norris stating repeatedly to Mr. Royal,
“Spit it out.” Id. at ¶ 12.
Royal was in a prone position. Id. at ¶ 13. A
short time later, Sergeant Bowers saw a small amount of what
he believed to be crack cocaine lying on the ground by Mr.
Royal's mouth. Id. Sergeant Bowers assisted with
handcuffing Mr. Royal, helping Mr. Royal to his feet, and
escorting Mr. Royal back to the trunk area of Detective
Gutierrez's patrol car. Id. Mr. Royal told
Sergeant Bowers, “I just ate a little pill.”
Id. While at the rear of the vehicle, Detective
Norris and Sergeant Bowers told Mr. Royal that if he was
still chewing anything to spit it out and it would not affect
his criminal charges. Id. at ¶ 14. Both
Detective Norris and Sergeant Bowers advised Mr. Royal that
they were not looking to add criminal charges, that they were
concerned about his health, to let them know if he swallowed
anything, and that they did not want him to have a heart
Detective Gutierrez reported that Ms. Gentry said she felt
sick, Sergeant Bowers told Detective Gutierrez to open his
patrol car door and to call the EMS. Id. at ¶
15. A short time later, the EMS arrived, and the paramedics
advised that they were going to transport Ms. Gentry to
Parkview Hospital as a precaution. Id. at ¶ 16.
At the scene, Sergeant Bowers asked the paramedics to talk to
Mr. Royal because Mr. Royal was chewing something earlier.
Id. at ¶ 17. Mr. Royal gave the paramedics the
indication that he did not swallow anything and that there
were no problems. Id. The paramedics decided that
Mr. Royal did not need to be transported. Id.
Officer Smith arrived at the scene to assist with the pat
down of Ms. Gentry and rode to the hospital with Ms. Gentry.
Bowers observed a small amount of cocaine in the red Dodge
Charger on the driver's side and a heavy amount of powder
and crack cocaine residue and debris on the passenger side.
Id. at ¶ 19. Sergeant Bowers believed that Mr.
Royal may have put cocaine in his mouth but believed that Mr.
Royal spit it all out at the traffic stop because they
recovered one to one and a half grams of crack cocaine that
he had spit out. Id. at ¶ 20. Sergeant
Bowers' body camera recorded the incident under Control
No. 15F080727. Id. at ¶ 21; see also
(Def. Ex. G).
Detective Shane Heath
Shane Heath was a police officer with the Auburn police
department from November 2000 to March 2009 and became a
police officer for the City of Fort Wayne on March 16, 2009.
(ECF 29-4, ¶ 2). In his affidavit, Detective Heath
provides the following information.
25, 2015, Detective Heath was on duty for the Fort Wayne
Police Department Vice and Narcotics Division, wearing plain
clothes and working in an undercover capacity. Id.
at ¶ 3. At approximately 10:00 a.m., Detective Blackburn
had been briefing narcotic detectives, including Detective
Heath, about a search warrant that she was serving at 3530
Oliver Street in Fort Wayne, Indiana. Id. at ¶
4. Detective Blackburn showed a picture of her main suspect,
Ms. Gentry, and “advised that she had charges of
dealing cocaine on [Ms. Gentry].” Id. at
¶ 5. Detective Norris, who was then sent to the house
prior to the execution of the search warrant, advised that he
did not see any vehicles or movement at the residence.
Id. at ¶ 6. Detective Blackburn told Detective
Heath that Ms. Gentry typically drives a white Chevrolet
Caprice and sometimes stays with a boyfriend at Southbridge
Apartments. Id. at ¶ 7. Detective Blackburn
asked Detective Heath to drive his undercover vehicle to the
area and attempt to locate the white Chevrolet Caprice.
Id. at ¶ 8. Detective Heath located the white
Chevrolet Caprice parked in front of the 8616 building.
Id. at ¶ 9.
Heath parked in the area and maintained visual continuity of
the vehicle. Id. at ¶ 10. While watching the
vehicle, Detective Heath was notified over the radio that the
search warrant was served at 3530 Oliver Street, Ms. Gentry
was not at the residence, and there were several individuals
in the area of the warrant service who might alert Ms.
Gentry. Id. at ¶¶ 10-11. Detective Heath
observed a male come out of the 8616 building, look around,
walk around the corner of the building out of view, and then
walk back into the 8616 building. Id. at ¶ 12.
Detective Blackburn asked Detective Heath, over the radio, if
there was a red Dodge Charger parked in front of the
apartment building, and Detective Heath reported a red Dodge
Charger parked next to the white Chevrolet Caprice.
Id. at ¶ 13. Detective Blackburn advised
Detective Heath that the red Dodge Charger possibly belonged
to Ms. Gentry's boyfriend. Id. at ¶ 14. A
short time later, the male subject walked out of the 8616
building with Ms. Gentry, who appeared to be in a hurry and
was looking around. Id. at ¶¶ 15, 16. Both
subjects got into the red Dodge Charger, with Ms. Gentry in
the front passenger seat and the male, later identified as
Mr. Royal, in the driver's seat. Id. at
Heath alerted the other detectives in the area that the red
Dodge Charger was leaving. Id. at ¶ 18.
Detective Gutierrez advised that the red Dodge Charger just
passed him; Detective Heath pulled out to follow the vehicle
but did not see it. Id. at ¶ 19. Detective
Heath attempted to locate the red Dodge Charger. Id.
at ¶ 20. Detective Norris advised that Detective
Gutierrez was struggling to place a female into custody.
Id. Detective Heath arrived at the traffic stop and
observed Detective Norris approaching the driver's side
of the red Dodge Charger. Id. at ¶ 21.
Detective Heath went to the passenger side of the vehicle and
assisted Detective Gutierrez with handcuffing Ms. Gentry.
Id. at ¶ 22. Once Ms. Gentry and Mr. Royal were
properly secured in handcuffs, they were removed from the
immediate area of the red Dodge Charger. Id. at
¶ 23. Detective Gutierrez alerted Detective Heath to the
fact that there was cocaine all over the vehicle and even
some lying outside of the vehicle. Id. Detective
Gutierrez stated that he observed Ms. Gentry attempting to
ingest the cocaine. Id.
Heath assumed responsibility for photographing and collecting
the evidence. Id. at ¶ 24. He recovered
approximately 7.2 grams of cocaine in the red Dodge Charger
that he placed in continuity. Id. at ¶¶
25-28. He located this cocaine in a knotted clear plastic
baggy underneath the passenger side of the vehicle (1.7 grams
of cocaine HCL), off the passenger floorboard (3.1 grams of
cocaine base), on the front passenger floor jam (1.1 grams of
cocaine HCL), and in a knotted clear plastic baggy on the
passenger floorboard (1.3 grams of cocaine base).
Id. He located five empty knotted plastic baggies
and a piece of Brillo on the front passenger seat and
floorboard. Id. at ¶ 29. He also located mail
addressed to Ms. Gentry, cell phones, a digital scale, and
$1447.00 in U.S. currency in the red Dodge Charger.
Id. at ¶¶ 30-36. Detective Heath used
cocaine wipes on both of the front seats in the vehicle and
on the floorboards on both sides of the vehicle; all areas
field tested positive for the presence of cocaine.
Id. at ¶ 43. Detectives Franceus and Norris
located an off-white chunky substance that was in Mr.
Royal's mouth; the substance field tested positive for
cocaine base and had a substance weight of .4 grams.
Id. at ¶ 38. Detective Heath transported all of
the items from the traffic stop to the Fort Wayne Police
Department Vice and Narcotics Division where he properly
logged and placed all items in continuity. Id. at
processing the vehicle, Detective Heath observed paramedics
arrive on the scene, but he did not have any conversation
with the paramedics, Mr. Royal, or Ms. Gentry; he observed
the medics remove and transport Ms. Gentry from the scene.
Id. at ¶ 44. Detective Heath did not have any
contact with Mr. Royal during this investigation and did not
have any contact with Ms. Gentry after helping Detective
Gutierrez put her in handcuffs. Id. at ¶ 46.
Detective Kurt Franceus
Kurt Franceus became a police officer for the City of Fort
Wayne on October 26, 2007. (ECF 29-5, ¶ 2). In June
2009, Detective Franceus was assigned to the Vice and
Narcotics division, and on June 25, 2015, he was a uniformed
Vice and Narcotics Detective. Id. at ¶¶
2-3. Detective Franceus provides the following information in
25, 2015, Detective Franceus was aware that Vice and
Narcotics detectives were conducting surveillance at 8600
Lakeside Drive and watching a white Caprice Classic used by
the primary suspect, Ms. Gentry, who he was told had two
counts of dealing cocaine pending. Id. at ¶ 4.
Detective Franceus was informed that Detective Heath had
observed the white Caprice Classic at 8600 Lakeside Drive and
had been given information for a red Dodge Charger.
Id. at ¶ 5. A short time later, Detective
Franceus was advised via police radio that Ms. Gentry had
exited the apartment building on Lakeside Drive and was
walking to the red Dodge Charger. Id. at ¶ 6.
At that time, Detective Franceus was at the apartment complex
office gathering information to determine who lived at 8616
Lakeside Drive and determined that it was Mr. Royal.
Id. at ¶ 7.
Gutierrez conducted a traffic stop of the red Dodge Charger
in the 8200 block of Bridgeway Drive. Id. at ¶
8. Detective Franceus then received radio traffic from
Detective Heath that Ms. Gentry was in the front passenger
seat of the red Dodge Charger and the car was being driven by
a male. Id. Detective Franceus drove to the traffic
stop where he could see Detective Norris and Sergeant Bowers
taking the driver, later identified as Mr. Royal, into
custody on the driver's side and Detectives Gutierrez and
Heath taking Ms. Gentry into custody on the passenger side.
Id. at ¶ 9.
Detective Franceus approached the vehicle, he heard Sergeant
Bowers yelling, “Spit it out, spit it out.”
Id. at ¶ 10. Detective Franceus observed Mr.
Royal being handcuffed and spitting out what Detective
Franceus believed to be cocaine. Id. Detective
Norris and Sergeant Bowers escorted Mr. Royal behind
Detective Gutierrez's squad car and again talked to him
about spitting out anything in his mouth. Id. at
¶ 11. Detective Franceus photographed what appeared to
be cocaine that Mr. Royal spit out. Id. at ¶
12. Sergeant Bowers walked Mr. Royal to Detective
Franceus' squad car and placed him in the back seat.
Id. at ¶ 13. Detective Franceus picked up the
cocaine that Mr. Royal spit out, put the cocaine in an
evidence bag, and gave the bag to Detective Heath.
Id. at ¶ 14.
was called for Ms. Gentry because she was nauseous.
Id. at ¶ 15. When the paramedics arrived, they
spoke to Ms. Gentry and advised that they were going to
transport her to the hospital as a precautionary measure.
Id. Sergeant Bowers asked the paramedics if they
wanted to talk to Mr. Royal, telling the paramedics that Mr.
Royal had been chewing some “rock.” Id.
at ¶ 16. Detective Franceus went back to his patrol car
and opened the back door so the paramedics could check on Mr.
Royal. Id. at ¶ 17. The paramedics asked Mr.
Royal, “You alright?” Id. Mr. Royal
replied, “Yeah.” Id. The paramedics
asked again, “You alright?” Id. Mr.
Royal again replied, “Yeah.” Id. The
paramedics said, “Are you sure?” Id. Mr.
Royal replied “positive.” Mr. Royal informed the
paramedics that he did not ingest any of the narcotics.
Franceus overheard Mr. Royal state to the paramedics,
“It was just two rock.” Id. at ¶
18. Detective Franceus did not believe that Mr. Royal had
swallowed any narcotics because, from his training and
experience, after hearing Mr. Royal say “two rocks,
” Detective Franceus remembered retrieving the crack
cocaine from the ground outside the driver's side of the
car. Id. at ¶ 18. It appeared to be two pieces
of a rock-like substance believed to be cocaine. Id.
In addition, Mr. Royal was acting fine, and he did not
express any concerns about his health. Id.
Franceus believed that there was probable cause to arrest Mr.
Royal for driving without a driver's license, possession
of cocaine, and resisting law enforcement. Id. at
¶ 19. While transporting Mr. Royal in his squad car to
the police operations center for an interview, Detective
Franceus learned that Mr. Royal may have also violated his
federal probation. Id. at ¶ 20. During the
transport, Detective Franceus carried on a conversation with
Mr. Royal. Id. Detective Franceus asked Mr. Royal,
“How are you feeling?” Id. at ¶ 21.
Mr. Royal replied, “I'm feeling fine.”
Id. Detective Franceus asked Mr. Royal, “Did
you swallow any or did you spit it all out?”
Id. at ¶ 21. Mr. Royal told Detective Franceus,
“I spit it out.” Id. Detective Franceus
stated, “I just don't want you getting sick on me
man.” Id. Mr. Royal stated, “Yeah I will
be fine.” Id. There was no indication that Mr.
Royal was having any medical issues. Id.
Franceus drove the patrol car to the lower level of the
police operations center and then walked Mr. Royal to the
prisoner transport elevator and to interview room number
eight. Id. at ¶ 22. Mr. Royal had no trouble
walking and seemed completely fine. Id. Detective
Franceus did a pat down search of Mr. Royal, exited the
interview room, started the video recording of the interview
room, and went to the Vice and Narcotics office, which is
down the hall from the interview room. Id. at
¶¶ 23, 24. Earlier, Detective Franceus had received
a phone call from the federal probation office about Mr.
Royal, and Detective Franceus planned on returning the call.
Id. He worked with Detective Blackburn to prepare
the search warrant for 8616 Apartment 1A, Lakeside Drive.
Franceus typed the search warrant application on one
computer, and, on the computer desk directly adjacent,
Detective Franceus used the iRecord system to monitor the
interview room where Mr. Royal was located. Id. at
¶ 25. Detective Franceus observed Mr. Royal leaning over
the table at one point. Id. at ¶ 26. Detective
Franceus went to the interview room and asked Mr. Royal if
everything was okay, to which Mr. Royal stated, “Yes,
everything is okay.” Id. At one point, Mr.
Royal asked for a cup of coffee. Id. at ¶ 27.
Detective Franceus stated that he could not give him a cup of
coffee but brought him a bottle of water. Id.
Detective Franceus asked Mr. Royal if he was okay, and Mr.
Royal stated, “I am okay.” Id. at ¶
28. Detective Franceus asked Mr. Royal if he was certain and
Mr. Royal stated, “Yes, perfect.” Id.