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Freeman v. State

United States District Court, N.D. Indiana, Fort Wayne Division

January 29, 2019

DIMITRIC FREEMAN, Plaintiff,
v.
STATE OF INDIANA, et al., Defendants.

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         This matter comes before the Court on the remaining Defendants', City of Fort Wayne and Detective Mark Deshaies, [1] Motion for Summary Judgement [ECF No. 40], filed on August 6, 2018, and Motion to Strike [ECF No. 50], filed on October 15, 2018. The Plaintiff, Dimitric Freeman, filed a response [ECF No. 48] on October 1, 2018. The Defendants filed a reply [ECF No. 49] in further support of their Motion for Summary Judgment on October 15, 2018. The Plaintiff has not filed a response to the Defendant's Motion to Strike and the deadline to do so has passed.

         BACKGROUND

         Freeman alleges several constitutional claims and state law tort claims against the Defendants in connection with his arrest, the search of his residence at 1006 Savilla Avenue, and seizure of his property.

         A. Surveillance of 1006 Savilla Avenue and Freeman

         Detective Marc Deshaies, a detective with the Gang and Violent Crimes Unit in the City of Fort Wayne, was working around Savilla Avenue in Fort Wayne on January 8, 2016, at approximately 11:15 p.m. (Defs.' Mot. for Summ. J., Ex. A, Detective Deshaies Aff. ¶ 4, ECF No. 40-1.) Detective Deshaies was in the area to identify the Plaintiff's, Dimitric Freeman, potential residence. (Id.) Freeman was suspected of stealing an automobile from a family member. (Id. ¶ 5.) The victim of the theft indicated that Freeman lived on Savilla Avenue and that the stolen vehicle may be located outside of Freeman's house. (Id.) Freeman had been previously arrested in October 2015 for stealing the same vehicle, a blue 2011 Chevy Camaro with license plate number WKM933. (Defs.' Mot. for Summ. J., Ex. C, Search Warrant Aff. at 1, ECF No. 40-3.)

         After conducting surveillance, Detective Deshaies determined that Freeman appeared to be living at 1006 Savilla Avenue. (Defs.' Ex. A, ¶ 7.) Detective Deshaies had information that Freeman may be driving a blue Dodge Charger with a license plate containing the numbers “818.” (Id. ¶ 8.) He located a blue Dodge Charger, with plate number “818LRP, ” parked behind 1006 Savilla Avenue. (Id. ¶ 9.) Detective Deshaies started surveillance of the location to see if Freeman would lead him to the stolen vehicle. (Id.)

         Subsequently, Detective Deshaies observed Freeman walking down the west side of 1006 Savilla Avenue. (Id. ¶ 10.) Detective Deshaies then observed Freeman enter the blue Dodge Charger from the driver's side, and within one to two minutes, the vehicle started driving. (Id. ¶ 11.) Detective Deshaies followed the vehicle to gather information but lost the vehicle after it rapidly accelerated. (Id. ¶ 12.) When Detective Deshaies ran a check on Freeman, he learned that Freeman was listed as a Habitual Traffic Violator for Life with the Bureau of Motor Vehicles in Indiana. (Id. ¶ 14.)

         On February 6, 2016, at approximately 1:15 a.m., Detective Deshaies conducted visual surveillance of 1006 Savilla Avenue. (Id. ¶¶ 15-16.) Detective Deshaies observed Freeman exit the house and enter the blue Dodge Charger with license plate number 818LRP. (Id. ¶ 16.) After the vehicle began to drive, Detective Deshaies followed the vehicle in an attempt to effectuate a stop. (Id. ¶ 18.) However, Detective Deshaies terminated his pursuit of the blue Dodge Charger for safety concerns after the vehicle rapidly accelerated. (Id.) On February 18, 2016, Detective Deshaies completed an Affidavit for Probable Cause for two counts against Freeman for Operating a Vehicle after a Lifetime Suspension, a Level 5 Felony. (Id. ¶ 19; Defs.' Mot. for Summ. J., Ex. B, Aff. for Probable Cause, ECF No. 40-2.)

         On February 17, 2016, at approximately 4:43 p.m., Fort Wayne police officer Geoffrey Norton informed Detective Deshaies that he observed a blue 2009 Dodge Charger driving around Oxford Street. (Id. ¶ 23.) Officer Norton attempted to conduct a traffic stop of the vehicle after he observed the driver fail to stop for a stop sign. (Id. ¶ 24.) Subsequently, the vehicle rapidly accelerated, and Officer Norton lost sight of the vehicle. (Id. ¶ 25.) Norton eventually located the vehicle parked on the side of the street with the tail of the vehicle far out from the curb, suggesting that the vehicle had been hastily parked. (Id. ¶ 27.) The license plate number of the blue Dodge Charger that Officer Norton observed was 818LRP. (Id. ¶ 28.)

         Law enforcement continued to conduct surveillance and collect tips regarding Freeman. (Id. ¶ 35.) The tips included several reports that Freeman was selling marijuana and cocaine, as well as storing firearms and narcotics, at a residence between Fairfield and Broadway. (Id.) The residence at 1006 Savilla Avenue is between Fairfield and Broadway. (Id.)

         On February 26, 2016, Detective Deshaies prepared a Search Warrant Affidavit to search 1006 Savilla Avenue for evidence relating to narcotics and narcotics-related activities and evidence. (Id. at ¶ 36; Defs.' Ex. C.) Detective Deshaies requested a “NO KNOCK” warrant for the 1006 Savilla Avenue residence due to Freeman's history with law enforcement. (Id. at 4.) Law enforcement had reports indicating that Freeman had a history of resisting arrest. (Id.) Additionally, Freeman was a convicted felon and had been arrested multiple times for weapons-related offenses. (Id.) Allen Superior Court Judge Frances Gull signed the search warrant for the 1006 Savilla Avenue residence on February 26, 2016. (Defs.' Mot. for Summ. J., Search Warrant, Ex. D, ECF No. 40-4.)

         B. Search of 1006 Savilla Avenue and Freeman's Arrest

         Freeman had a scheduled court appearance for pending city ordinance violations regarding pets on the property at 1006 Savilla Avenue on March 2, 2016, at 1:30 p.m. (Defs.' Ex. A, ¶ 39.) To reduce the possibility of Freeman fleeing and causing harm to the public, it was decided that Freeman would be apprehended for pending felony charges of Operating a Vehicle After a Lifetime Suspension at the court appearance. (Id.) It was also decided that the search warrant for drug-related evidence at 1006 Savilla Avenue would be served the same day as Freeman's court appearance to minimize the danger to law enforcement. (Id.) On March 2, 2016, Detective Deshaies and other law enforcement officials detained Freeman and informed him of the Operating a Vehicle After a Lifetime Suspension charges. (Id. ¶¶ 40-41.) In addition, Detective Deshaies informed Freeman that law enforcement would be executing a search warrant on 1006 Savilla Avenue. (Id. ¶ 44.)

         At 2:55 p.m., on March 2, 2016, law enforcement effectuated the search warrant at 1006 Savilla Avenue. (Id. ¶ 49.) No one answered the door in response to law enforcement announcing their presence. (Id. ¶ 50.) Law enforcement subsequently breached the front door. (Id. ¶ 51.) Due to the presence of multiple dogs inside the residence, law enforcement used a flash bang distraction device after breaching the front door. (Id.) Narcotics and items used for narcotics packaging and dealing were located and seized from the residence. (Id. ¶¶ 53, 59, 63-68.)

         Based on the contraband found in Freeman's house during the execution of the search warrant, Detective Deshaies prepared an Affidavit for Probable Cause to Arrest for Dealing in Cocaine or a Narcotic Drug on March 2, 2016. (Defs.' Mot. for Summ. J., Mar. 2, 2016 Probable Cause Aff. for Narcotics Dealing, Ex. E, ECF No. 40-5.) Subsequently, on March 8, 2016, an Allen Superior Court judge issued a warrant for Freeman's arrest for drug-related and traffic-related criminal charges. (Defs.' Mot. for Summ. J., March 8, 2016 Arrest Warrant, Ex. F., ECF No. 40-6.)]

         During the March 2, 2016, search, detectives located several dogs inside and outside of the residence. (Defs.' Ex. A, at ¶¶ 54-57.) Animal Care and Control Officers Erika Hedge and Lisa Cain were deployed to assist Fort Wayne police officers with the search of 1006 Savilla Avenue. (Defs.' Mot. for Summ. J., Aff. of Lisa Cain, Ex. G, ECF No. 40-7.)

         Animal Care determined that the dogs found at 1006 Savilla Avenue, three adult dogs and two litters of puppies, were living in unsanitary and unsafe conditions. Upon entering the residence, Animal Care officers observed “an overwhelming smell of dog feces and urine.” (Id. ¶ 6.) One litter of puppies was found in the back-entry area of the house. (Id. ¶ 7.) The mother dog and eight puppies were found in a wired enclosure with a piece of scrap linoleum covered in feces and urine serving as the floor. (Id. ¶¶ 7-8.) The mother dog and puppies were coated in feces and urine. (Id.) The mother dog was also found to be underweight. (Id. ¶ 18.)

         Another mother dog, severely underweight, along with a litter of puppies was found in the upstairs portion of the residence. (Id. ¶¶ 9, 18.) The Animal Care officers observed that the upstairs bathroom and attic area where the second mother dog and litter were confined “smelled worse, ” and “was hot and stagnant.” (Id. ¶ 9.) They also observed dog feces smeared all over the inside of the upstairs bathroom door, tub, toilet, and floor. (Id. ¶ 10.) There were twenty to thirty piles of feces on the attic boards, where the mother dog was found lying in the corner next to the chimney. (Id.) The mother dog and her litter were also coated in feces and urine. (Id.)

         A male, adult dog was found outside the residence in a kennel. (Id. ¶ 11.) There was no food or water in the male dog's kennel. (Id. ¶ 12.)

         C. Removal of Dogs from Freeman's Residence

          Animal Care officers removed all the dogs and puppies from the residence and posted an Animal Welfare Notice in the mailbox at 1006 Savilla Avenue. (Id. ¶ 17.) Animal Care Officer Hedges prepared five summonses to be issued to Freeman. (Id. ¶ 20.) The summonses were issued for Failure to Obtain a Pet Registration under Local Ordinance 91-050(a); Failure to Purchase Rabies Vaccinations under Local Ordinance 91.075; Failure to have a Major Breeders Permit under Local Ordinance 91.055; Failure to Keep Animal Enclosures in a Sanitary Condition under Local Ordinance 91.017; and Failure to Obtain Required Vet Care under Local Ordinance 91.016. (Id.).

         On March 2, 2016, Animal Care officers went to Allen County Jail to meet with Freeman regarding the dogs removed from the residence. (Id. ¶ 21.) Animal Care officers asked Freeman if he had anyone who could claim the 19 dogs removed from the residence. (Id. ¶ 22.) Freeman indicated that the dogs could be released to his brother, Jernard Freeman; his mother, Theresa Freeman; and his girlfriend, Destiny Martin. (Id.) Animal Care officers then issued Freeman the five summonses prepared by Officer Hedges. (Id.) Freeman signed the five summonses. (Id., )

         Additionally, on March 2, 2016, a legal notice was given to Freeman indicating that his dogs had been impounded by the Department of Animal Care and Control. (Id. ¶ 26.) Freeman signed the legal notice, indicating that his dogs could be released to Destiny Martin, Theresa Freeman, and Jernard Freeman. (Id.; Defs.' Mot. for Summ. J., Dimitric Freeman Dep., Ex. K, at 32, ECF No. 40-11.)

         On March 3, 2016, consistent with Fort Wayne Ordinance 91.078, Animal Care Officer Randy Thornton explained to Jernard Freeman that puppies found at the residence could not be released to anyone other than Dimitric Freeman because the puppies were younger than eight weeks old. (Defs.' Ex. G, at ¶¶ 24, 25.) Dimitric Freeman had five days to reclaim the puppies. (Id. ¶ 28.) Freeman did not reclaim the puppies. (Id.) On March 7, 2016, one female adult dog was released to Destiny Martin, one female adult dog was released to Theresa Martin, and the adult male dog was released to Jernard Freeman. (Id. ¶ 27.)

         The puppies were evaluated by Animal Care and Control. (Id. ¶ 29). On March 9, 2016, some of the puppies were euthanized because the puppies were snarling, growling, and biting each other, and the intensity of the aggressive behavior was not consistent with normal puppy behavior at their age. (Id.). Instead, the level of aggression was consistent with an aggressive adult dog. (Id.). When interacting with the dog handlers, the puppies snarled, bit, and charged toward the handlers in an aggressive manner. (Id.). When the puppies were picked up, they growled, snarled, and attempted to bite. (Id.) The puppies were evaluated over several days with multiple interactions and each time showed the same repeated behavior. (Id.). The puppies never displayed appropriate social interactions with humans. (Id.). The puppies that were not euthanized were approved for adoption. (Id. ¶ 30.)

         D. Allen Superior Court Case Against Freeman for Animal Welfare Violations

         The City of Fort Wayne v. Dimitric Freeman, Allen Superior Court, 02D05-1603-OV-000203, involved the violations brought against Dimitric Freeman for failing to obtain a major breeder permit and failing to maintain sanitary conditions, which were uncovered during the execution of the search warrant at Dimitric Freeman's house at 1006 Savilla Avenue on March 2, 2016. (See Defs.' Mot. for Summ. J., 02D05-1603-OV-000203 Allen Superior Court Docket Sheet, Ex. O, ECF No. 40-15). In this action, Freeman filed a motion to suppress, claiming that the search warrant violated his Fourth Amendment rights, and that any evidence obtained from it, including evidence related to the dog safety charges, should be suppressed. (See Defs.' Ex. O.) As in this instant case, Freeman claimed that Detective Deshaies knowingly misrepresented and fabricated material facts to the judge to obtain the search warrant. (Defs.' Mot. for Summ. J., Mot. to Suppress, Ex. L, ECF No. 40-12.)

         On May 11, 2016, a hearing took place in the Allen Superior Court on Freeman's Motion to Suppress. (Defs.' Ex. O; Defs.' Mot for Summ. J., Mot. to Suppress Hr'g Tr., Ex. M, ECF No. 40-13.) On May 24, 2016, the Allen Superior Court denied Freeman's Motion to Suppress. (Defs.' Mot. for Summ. J., Order Denying Mot. to Suppress, Ex. N, ECF No. 40-14.) On January 11, 2017, Allen Superior Court Judge Frances Gull entered judgment against Freeman for a Major Breeder Permit Violation and a Failure to Maintain Sanitary Conditions Violation after a bench trial. (Defs.' Ex. O at 6.)

         E. Instant Action

         On May 26, 2017, Freeman filed a five-count Complaint in this Court.[2] The Court understands that Freeman has alleged ...


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