UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

NICOLAS B. MARTINEZ, )

 )

Plaintiff, )

)

v. ) CAUSE NO. 4:13-CV-12 WL

)

LAFAYETTE POLICE DEPARTMENT, et al., )

)

Defendants. )

OPINION AND ORDER

Nicolas B. Martinez, a pro se prisoner, filed an amended complaint under 42 U.S.C.

§ 1983. (DE 9.) Pursuant to 28 U.S.C. § 1915A, the court must review a complaint filed by a

prisoner and dismiss it if the action is frivolous or malicious, fails to state a claim for relief, or

seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §

1915A(a), (b). To survive dismissal, the complaint must state a claim for relief that is plausible

on its face. Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 603.

In other words, “a plaintiff must do better than putting a few words on paper that, in the hands of

an imaginative reader, might suggest that something has happened to her that might be redressed

by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original).

Nevertheless, a pro se complaint “must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Here, Mr. Martinez claims that two officers from the Lafayette Police Department

violated his rights in connection with his arrest and the seizure of his truck on August 28, 2011.
The events giving rise to the suit began in February 2011, when Mr. Martinez was arrested on

drug charges by Lafayette police. He subsequently posted bond and was released from jail. On

August 19, 2011, while out on bond, he was accused of being involved in a hit-and-run accident.

He was arrested and his truck impounded. He was later released on his own recognizance, and

also regained possession of his truck after paying various fees. 

According to the complaint, on August 23, 2011, a prosecutor in Tippecanoe County

initiated probation revocation proceedings against Mr. Martinez (apparently due to the above

incidents), and filed an application for an arrest warrant. On this point the complaint is somewhat

confusing, but Mr. Martinez appears to claim that due to a clerical error, the judge mistakenly

reissued the warrant on the drug charges, rather than issuing a warrant on the probation

revocation charge. A warrant for his arrest was issued on August 28, 2011. Later that same day,

he was helping his girlfriend move into her new apartment, when Lafayette Police Officers

Regnerus and Withers (first names unknown) arrived and informed him they had a warrant for

his arrest on drug charges. They also informed him they would be seizing his truck, which was

parked in the building lot, because it had been involved in hit-and-run accident a few weeks

earlier. Mr. Martinez claims he told them the truck had already been impounded because of the

hit-and-run, but one of the officers reportedly responded, “I don’t care, I’m taking it anyway.”

Mr. Martinez claims he also told the officers he thought the warrant was in error, because he had

already been arrested and posted bond on the drug charges. He asked them to “check it again”

but they allegedly refused. He was then arrested and his truck impounded. He claims that the

officers violated his rights by falsely arresting him and improperly seizing his truck without a

warrant, causing him financial losses and emotional distress. 

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The Fourth Amendment provides that “the right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the persons or things to be seized.” U.S.

CONST. amend. IV. To prevail on a claim of false arrest in violation of the Fourth Amendment,

the plaintiff must show that he was arrested without probable cause. Lawson v. Veruchi, 637 F.3d

699, 703 (7th Cir. 2011). Probable cause exists if at the time of the arrest, the facts and

circumstances within the officer’s knowledge “are sufficient to warrant a prudent person, or one

of reasonable caution, in believing, in the circumstances shown, that the suspect has 

committed. . . an offense.” Id. (internal citation omitted). Probable cause to arrest a suspect for

any offense, even one occurring outside the officer’s presence, bars liability for false arrest.

Brooks v. City of Aurora, 653 F.3d 478, 484–86 (7th Cir. 2011). Furthermore, when an officer

acts in good faith within the scope of a warrant, “he has engaged in no official misconduct” even

if the arrest is later deemed to be unlawful. Lawson, 637 F.3d at 703. “In such a case, the

magistrate’s issuance of the warrant shields the officer from liability for the illegal arrest,” unless

the officer knowingly made false statements to obtain the warrant. Id.

Here, Mr. Martinez alleges that the judge made a technical error in issuing the arrest

warrant. However, the error cannot be attributed to the arresting officers, since they did not

obtain the warrant or have any involvement in its issuance. Although Mr. Martinez complains

that the officers did not “check again” when he told them he thought the warrant was for the

wrong charge, there is nothing to indicate they could have discerned from the warrant itself or

other available records that the warrant contained a clerical error. Moreover, Mr. Martinez does

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not dispute that there was probable cause to arrest him on the probation violation charge, had the

clerical error not been made. Under these circumstances, he has failed to state a plausible claim

against the officers for false arrest.

Mr. Martinez also appears to complain that when the officers arrested him, they listened

to his cell phone messages without his permission. An officer conducting an arrest has a right to

conduct a “full search of the person,” including looking for evidence of the arrestee’s crime to

preserve it for use at trial. United States v. Robinson, 414 U.S. 218, 235 (1973). This includes

searching the contents of a cell phone or pager. See United States v. Ortiz, 84 F.3d 977, 984 (7th

Cir. 1996) (upholding search of contents of pager); see also United States v. Pineda-Areola, 372

Fed. Appx. 661 (7th Cir. Apr. 6, 2010) (upholding search of cell phone); United Sates v. Finley,

477 F.3d 250, 258-60 (5th Cir. 2007) (upholding search of call records and text messages on cell

phone). Here, as far as the officers knew, Mr. Martinez was accused of drug-dealing, and it was

not unreasonable for them to listen to his cell phone messages in search of evidence of this

crime. There is no indication they found anything incriminating or that any evidence from the

cell phone was used against him in the criminal proceeding; his mere objection to this intrusion

into his privacy does not state a plausible Fourth Amendment claim.

Mr. Martinez also alleges that the officers acted improperly in impounding his vehicle

without a warrant. The standard for whether a seizure survives constitutional scrutiny is

reasonableness, not merely whether the officers had a warrant. Soldal v. Cook County, 506 U.S.

56, 70 (1992). So long as the officers had probable cause to believe there were grounds for

seizing the truck, the Fourth Amendment was not violated. See Florida v. White, 526 U.S. 559

(1999). Here, the officers had information that the vehicle was involved in a hit-and-run

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accident. The officers were lawfully on the property to execute the arrest warrant, and they were

entitled to seize the vehicle which was in plain view. See United States v. Brown, 79 F.3d 1499,

1508 (7th Cir. 1996). Accordingly, he does not allege a plausible Fourth Amendment claim for

unlawful seizure.

Mr. Martinez lists three other defendants in the caption—the Lafayette Police

Department, the City of Lafayette, and Tippecanoe County—although it is not clear whether he

intended to sue these entities, since he does not list them in the body of the complaint. (See DE 9

at 3.) Regardless, they must be dismissed. The Lafayette Police Department is not a suable entity

under state law and thus cannot be sued for constitutional violations. Sow v. Fortville Police

Dep’t, 636 F.3d 293, 300 (7th Cir. 2011). The City and County cannot be held liable simply

because they employed the officers involved, Chavez v. Illinois State Police, 251 F.3d 612, 651

(7th Cir. 2001), and Mr. Martinez does not allege that either one had an unconstitutional official

policy or custom that caused his injury. See Monell v. Dep’t of Soc. Servs. of City of New York,

436 U.S. 658 (1978). 

Finally, to the extent Mr. Martinez is trying to assert state law claims in his complaint,

the court declines to exercise jurisdiction over such claims since the federal claims are being

dismissed. See Doe-2 v. McLean County Unit Dist. No. 5 Bd. of Dirs., 593 F.3d 507, 513 (7th

Cir. 2010) (“Ordinarily, when a district court dismisses the federal claims conferring original

jurisdiction prior to trial, it relinquishes supplemental jurisdiction over any state-law claims

under 28 U.S.C. 1367(c).”). The court offers no opinion about the merits of any potential claim

he may have under state law, although this order does not preclude him from pursuing such

claims in state court if he so chooses.

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For these reasons, this action is DISMISSED pursuant to 28 U.S.C. § 1915A.

SO ORDERED. 

ENTERED: May 1, 2013

 s/William C. Lee 

William C. Lee, Judge

United States District Court

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