with reasonable suspicion (and probable cause, for that matter)
to stop Mr. Davis. See Whren v. U.S., 517 U.S. 806, 810

(1996) (“the decision to stop an automobile is reasonable where
the police have probable cause to believe that a traffic
violation has occurred); United States v. Sokolow, 490 U.S. 1, 7
(1989) (reasonable suspicion is a less demanding standard than
probable cause).

At trial, Mr. Davis admitted that he had committed the
violations for which Officer Novy cited him: he testified that he
had moved to Illinois in August of 2001, and that he had never
obtained an Illinois driver’s license; he admitted that, on the
morning of February 9, 2002, the registration sticker on the rear
license plate of his truck was partially obscured by the bracket
around the plate; and he admitted that, as of that date, he had
no insurance for his truck. Tr. at 103, 146-48, 150-51. It is
true that Officer Novy could not have known, when he made the
decision to stop Mr. Davis, that he had no Illinois driver’s
license and no insurance. Thus the constitutionality of the
initial stop depends on whether Officer Novy had noticed that Mr.
Davis’ registration sticker was obstructed before pulling him
over. The testimony at trial was uncontroverted that he had.

Officer Novy testified that he responded to the MDT report
and immediately noticed Mr. Davis’ truck, which matched the

description given in the 9-1-1 call; he testified that he pulled

19


he arrived on the scene, he saw a truck that matched the
description given in the 9-1-1 call, and he saw Officer Novy
sitting in his squad car right behind the truck. Tr. at 442. At
that time, Officer Escobar testified, he walked up to Officer
Novy’s squad car, and Officer Novy told him that he had stopped
Mr. Davis for having an obstructed registration sticker. Tr. at
442-43.

Officer Escobar testified that, Officer Novy told him what
he had seen in Mr. Davis’ truck and said that he wanted to search
the cab; Officer Escobar agreed that, based on what Officer Novy
had seen in plain view, a search of the cab was appropriate.
Officer Escobar testified that Officer Novy then searched Mr.
Davis’ truck, while Mr. Davis sat on the tailgate of the truck,
and Officer Escobar stood 7 to 10 feet in front of him in an
“interview stance” - that is, he stood facing Mr. Davis with his
hands out in front of him. Tr. at 443-44. According to Officer
Escobar, the search of the truck took about 20 or 30 minutes.

Tr. at 444,

Officer Escobar testified that he did not make the decision
to arrest Mr. Davis; that decision was made by Officer Novy. Tr.
at 448. Escobar further testified that he heard Novy radio to
dispatch that he was arresting Mr. Davis for driving without a
valid Illinois driver’s license. Id. Officer Escobar testified

that, throughout the encounter, Mr. Davis was very cooperative,

13


their weapons. The officers did nothing to coerce, harass,
intimidate or threaten Mr. Davis; nor is there any evidence to
suggest that they otherwise improperly induced Mr. Davis’
consent. In fact, as the Court understands counsel’s argument,
Mr. Davis concedes that the alleged coercion stemmed, not from
anything the officers said or did, but from the fact that Mr.
Davis was disabled, that he was worried about what would happen
to his dogs if he went to jail, that he was worried about how he
could get to work if his truck was impounded, and that he was
worried that his neighbors would walk by, see what was going on,
and think he was a pervert or pedophile.

As an initial matter, the fact that the officers explained
to Mr. Davis what would happen if he refused to consent to the
searches, i.e. that his truck would be impounded and he would go
to jail, does not render the consents involuntary. See Scheets,
188 F.3d at 840 (an agent’s explanation of what would transpire
does not render a consent involuntary). Officer Novy truthfully
reported what the law required him to do, and there is no
evidence to suggest that he explained the situation in a way
calculated to induce Mr. Davis’ consent. Moreover, the Court
recognizes that, if these things had come to pass, Mr. Davis
would have been terribly inconvenienced - if he had been taken to
jail, he would have had to make arrangements for the care of his

dogs, and if he had lost his truck, he would have had to make

23


constitutional rights in the course of the initial stop, and in
the subsequent searches of his person, his truck and his home.

B. The Trial

The case was tried before a jury on May 17, 18 and 19, 2004.
At trial, Mr. Davis testified first. He explained that, on
February 9, 2002, he decided to drive through the neighborhood to
take pictures of snow mounds so that he could show the Village
how the snow impeded his access to the streets and sidewalks, and
to try to find a way to solve the problem. Tr. at 106. He
described the route he drove, which, according to the map shown
to the jury, put him in or near the area reported in the 9-1-1
call. Tr. at 111-12.

Mr. Davis testified that, at some point while he was out on
his picture-taking expedition, he noticed a police car following
him, and he was eventually pulled over. Tr. at 110, 112-13. He
testified that, when Officer Novy approached the truck, he asked
the officer whether he had done anything wrong, and Officer Novy
had responded “no.” Tr. at 113. According to Mr. Davis, Officer
Novy said he stopped him because the police department had
“received an anonymous 911 phone call from some woman stating
that I had been taking pictures of children.” Tr. at 114. Mr.
Davis testified that Officer Novy then asked him for his driver’s
license and insurance card; he produced his Indiana driver’s

license, which he learned was no longer valid, but he was unable



in behind Mr. Davis and followed him for a few minutes, and it
was during this time that he noticed that the registration
sticker on Mr. Davis’ rear license plate was obstructed to the
point where it was unreadable, which he knew violated the
Illinois vehicle code. Tr. at 245-46. And Officer Escobar
testified that Novy told him he had stopped Davis because of the
obstructed sticker. Tr. at 461.

Mr. Davis testified that Officer Novy did not mention the
obstructed registration sticker right aways in fact, according to
Mr. Davis, Officer Novy initially told him that he had done
nothing wrong, that he had stopped him because of the 9-1-1 call.
Tr. at 113. And Mr. Davis’ attorney pointed to this testimony as
evidence that Officer Novy actually stopped Mr. Davis because of
the call, and not because of any violation of the vehicle code.
But Mr. Davis’ testimony does not prove that Officer Novy had not
yet noticed the sticker when he pulled Mr. Davis over; nor does
it contradict Officer Novy’s testimony that he saw the obstructed
sticker before he decided to stop Mr. Davis. Nothing in the law
or the Fourth Amendment would have required Officer Novy to
mention at the outset the obstructed sticker.

Officer Novy quite candidly admitted that, when he made the
decision to stop Mr. Davis, he had two things in his mind: first,
he was thinking that this vehicle matched the description of the

vehicle reported over the MDT, and, second, he was thinking that

20



alleged to have violated.” Anderson v. Creighton, 483 U.S. 635,
638 (1987) (citations omitted). “(W]hether an official protected
by qualified immunity may be held personally liable for an
allegedly unlawful official action generally turns on the
‘objective legal reasonableness’ of the action . . . assessed in
light of the legal rules that were ‘clearly established’ at the
time it was taken... .” Id. at 639. The doctrine of
qualified immunity allows for the realization that “(i]t is
sometimes difficult for an officer to determine how [a
particular] legal doctrine . . . will apply to the factual
situation the officer confronts.” Saucier v. Katz, 533 U.S. 194,
205 (2001). “If the officer’s mistake as to what the law
requires is reasonable, . . . the officer is entitled to the
immunity defense.” Id. Thus, “(o]fficers under this standard
may be protected from liability for objectively reasonable
decisions, even if wrong”; “qualified immunity is not forfeited
unless ‘no reasonable officer could have mistakenly believed’
that the conduct was unlawful.” Saffell v. Crews, 183 F.3d 655,
658 (7th Cir. 1999) (citing Jones v. City of Chicago, 856 F.2d
985, 994 (7th Cir. 1988)).

The Court first considers whether Officer Novy is entitled
to qualified immunity. With respect to the initial decision to
stop Mr. Davis, if, as the evidence shows, Officer Novy stopped

Mr. Davis, even in part, because of the obstructed registration

26


surrounding circumstances. Schneckloth, 412 U.S. at 226. The
testimony at trial shows quite clearly that Mr. Davis voluntarily
consented to the searches of both his truck and his home.

Officers Novy and Escobar both testified that Mr. Davis
consented to the search of his truck and the search of his home.
Both officers testified that Mr. Davis was, at all times,
cooperative; he never gave any indication that he objected to the
searches. In fact, Mr. Davis admitted that he orally gave the
officers permission to search his truck, and he admitted that he
signed a consent card for the search of his home; he further
admitted that the consent card, on its face, indicated that he
was voluntarily agreeing to the search. Mr. Davis also admitted
that he did nothing and said nothing to indicate to the officers
that he in any way objected to the searches.

At argument on the motion for judgment as a matter of law,
Mr. Davis’ attorney argued that, although Mr. Davis had outwardly
consented to the searches, his consent was not voluntary; rather,
it was compelled under the circumstances. But, based on the
evidence presented at trial, the circumstances were not so
extreme that they could have amounted to coercion or duress.
First, the officers testified that their demeanor was, at all
times, polite and professional, and Mr. Davis agreed that this
was the case; he testified that the officers were never

threatening or offensive, they never touched him, never displayed

22


finally, the officers argue, even if Mr. Davis’ evidence
established that constitutional violations had occurred, the
officers are nonetheless entitled to judgment as a matter of law
because they are shielded from liability for those violations
under the doctrine of qualified immunity. The Court agrees on
all counts: based upon the evidence presented at trial, even when
viewed in the light most favorable to Mr. Davis, a reasonable
jury simply could not have found in favor of Mr. Davis with
respect to the constitutional violations he alleged. See Reeves,
530 U.S. at 135 (“Rule 50 requires a court to render judgment as
a matter of law when a party has been fully heard on an issue,
and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue.”).

In his complaint, Mr. Davis claimed that Officers Novy and
Escobar, while acting under color of state law, intentionally
deprived him of his rights under the Constitution of the United
States ~ namely his right to be free from the unreasonable search
and seizure of his person, and the unreasonable search of his
vehicle and his home. Specifically, Mr. Davis claimed that the
officers violated his constitutional rights when Officer Novy
initially pulled him over without reasonable suspicion to believe
that he had committed a criminal offense. Mr. Davis further
claimed that the officers subsequently violated his rights when

they searched his truck and his home; he claimed that, although

17



produced an Indiana license; and when Officer Novy asked Mr.
Davis for proof of insurance, he was unable to provide it; those
things were significant to Officer Novy because they both amount
to violations of the Illinois vehicle code. Tr. at 251-53.

Officer Novy testified that, after the conversations about
Mr. Davis’ driver’s license and inability to provide an insurance
card, he told Mr. Davis that he pulled him over because the frame
on his rear license plate covered the sticker, which is a
violation of the Illinois vehicle code. Tr. at 253. Officer
Novy testified that he then asked Mr. Davis if he had been taking
pictures, and explained that the police department had received a
call about someone taking pictures of children. Tr. at 253-54.
According to Officer Novy, Mr. Davis explained that he had been
taking pictures of snow mounds and why; he also offered to turn
over a roll of film to corroborate his story. Tr. at 254.
Officer Novy testified that he was polite at all times to Mr.
Davis, and that Mr. Davis was cooperative at all times with the
officers. Tr. at 256-57, 259-60, 267.

Officer Novy testified that he asked Mr. Davis for
permission to search the cab of his truck, Mr. Davis agreed to
the request, and walked to the tailgate of his truck, where he
waited with Officer Escobar while Officer Novy searched the
truck. Tr. at 259-61. Officer Novy testified that, in the

course of that search, which took about twenty minutes, he found


Novy resolves the question for Officer Escobar as well. The
trial testimony establishes that, to the extent Officer Escobar
personally did or said anything that might have contributed to
the alleged constitutional violations, he was following Officer
Novy’s lead. Officer Escobar testified that he was not involved
in the initial decision to stop Mr. Davis; rather, that was
Officer Novy’s decision. Officer Escobar also testified that
Officer Novy raised the issue of searching, and searched, Mr.
Davis’ truck and home, whereas Escobar was primarily concerned
with ensuring Novy’s safety. In other words, Officer Novy was
calling the shots, and Officer Escobar was playing a supporting
or back-up role. Officer Novy and Mr. Davis testified
consistently. Thus, if Officer Novy is shielded from liability,
Officer Escobar would similarly be shielded from liability. See,
e.g., United States v. Hensley, 469 U.S. 221, 232 (1985) (if an
officer relies on information or knowledge of another officer, he
is entitled to qualified immunity, as long as his reliance was
objectively reasonable). See also Tangwall v. Stuckey, 135 F.3d
510, 517 (7th Cir. 1998); Irvin v. Kaczmaryn, 913 F.Supp. 1190,
1199-1200 (N.D. Ill. 1996).

BE. Conclusion

For the reasons explained above, the Court finds that no
reasonable jury could find, based on the evidence presented at

trial, that the defendants violated Mr. Davis constitutional

29



closets, dresser drawers, and boxes) and took a cursory look
through his garage, then they went back outside. Tr. at 131-33.
Mr. Davis testified that Officer Novy then wrote out the tickets
and filled out some other paperwork, gave copies to him, and then
left. Tr. at 133-34.

Mr. Davis conceded that he had committed the violations for
which he ultimately received citations: he testified that he had
moved to Illinois in August of 2001, and that he had never
obtained an Illinois driver’s license; he admitted that, on the
morning of February 9, 2002, the registration sticker on the rear
license plate of his truck was partially obscured by the bracket
around the plate; and he admitted that, as of that date, he had
no insurance for his truck. Tr. at 103, 146~48, 150-51. Mr.
Davis testified that, when Office Novy approached his truck,
there was, in fact, a hat, a camera, a camera bag, towels, duct
tape and rope in the cab of his truck, all either on the seat
next to him or on the floor of the cab. Tr. at 153-54.

With respect to the officers’ demeanor, Mr. Davis testified
that, during the initial traffic stop, Office Novy was polite to
him; he was neither rude nor abrasive, threatening nor offensive.
Tr. at 152. So too during the course of the search of his truck.
Tr. at 161. He testified that the officers did not touch him or
handcuff him; they did not display their weapons, Tr. at 156-57,

162. Mr. Davis testified that he had agreed to the searches of


to provide an insurance card. Tr. at 115, 117.

Mr. Davis testified that Officer Escobar arrived on the
scene about this time, and, after the two officers conferred
briefly, Officer Novy asked Mr. Davis if he could search his
truck. Tr. at 117-18. Mr. Davis testified that he asked what
would happen if he refused, and Officer Novy told him that they
would have to impound his truck and take him to jail. Tr. at
118. Mr. Davis testified that he then agreed to the search;
Officer Novy searched his truck for about 30 to 45 minutes, while
Mr. Davis sat on the tailgate of his truck, with Officer Escobar
standing in front of him in a defensive posture. Tr. at 119-20,
122.

Mr. Davis testified that, after Officer Novy searched the
truck, he told Mr. Davis he was under arrest; Officer Novy patted
him down and asked him to empty his pockets, which he did. Tr.
at 123. Mr. Davis testified that Officer Novy then placed him in
the backseat of the squad car and told him that he wanted to
search his house, which was just a few blocks away. Tr. at 13-
24. Mr. Davis testified that he again asked what would happen if
he refused, and Officer Novy again told him that he would impound
his truck and take him to jail. Tr. at 124. Mr. Davis testified
that the officers presented him with a consent card, and he
signed it. Tr. at 124, 127. The three then proceeded to his

house, where Officer Novy searched through his bedroom (in the



he consented to the searches, his consents were invalid because

they were the result of coercion and duress. To prevail on his

claims at trial, then, he had to produce evidence sufficient to

enable a reasonable jury to find that the officers intentionally
committed acts that violated his constitutional rights.

To establish a constitutional violation with respect to the
initial traffic stop, Mr. Davis had to produce evidence showing
that Officer Novy lacked reasonable suspicion to believe that Mr.
Davis was, or was about to be, engaged in criminal activity.

Ca

“Reasonable suspicion requires more than a mere ‘hunch’”; it is
some objective manifestation that the person stopped is, or is
about to be, engaged in criminal activity.” United States v.
Ienco, 182 F.3d 517, 523, 524 (7th Cir. 1999) (citing United
States v. Cortez, 449 U.S. 411, 417 (1981)). On this issue, it
is clear that the 9-1-1 call that came from the dispatch center
would not have been enough, by itself, to establish reasonable
suspicion. See Florida v. J.L., 529 U.S. 266, 270-72 (2000) (an
anonymous tip will not give rise to reasonable suspicion unless
it is suitably corroborated - both in terms of its tendency to
identify a determinate person, and in terms of its assertion of
illegality). But it is equally clear that the obstructed
registration sticker - which clearly violated Illinois law, see
625 ILCS 5/3-413(b) (“[r]egistration stickers . . . shall be

clearly visible at all times) - would have provided Officer Novy

18


the rear license plate of Mr. Davis’ truck was obstructed or
covered such that the month of expiration was unreadable, and
that he knew that was a violation of the Illinois vehicle code.
Id. at 246. Officer Novy testified that, after following Mr.
Davis for a while, and after learning from Officer Escobar that
he had no additional information on the report, Officer Novy
radioed in a traffic stop, engaged his emergency lights and
pulled Mr. Davis over. Tr. at 190-95, 247. Officer Novy
testified that, when he made the decision to stop Mr. Davis, he
had two things in his mind: first, he was thinking that this
vehicle matched the description of the vehicle reported over the
MDT, and, second, he was thinking that the same vehicle was
showing a clear violation of the Illinois vehicle code. Tr. at
246-47.

Officer Novy testified that, after Mr. Davis pulled over, he
walked up to the truck and asked Mr. Davis for his driver's
license; as he did so, he looked into the cab and saw a camera
bag and black hat on the seat next to Mr. Davis, rope and duct
tape on the floor of the cab, and towels covering the seat, the
floor and the dashboard of the truck. Tr. at 247-48. He
testified that those things, even if seemingly innocuous on their
own, together raised some red flags in his mind, given his
experience and training. Tr. at 247-50. Additionally, when

Officer Novy asked Mr. Davis for his driver’s license, Mr. Davis



other arrangements for getting around. But the potential for
inconvenience does not rise to the level of duress or coercion
required to vitiate an otherwise voluntary consent.

Nor would the potential for embarrassment be enough to
vitiate the consent. It is true that the stop took place on a
sunny Saturday afternoon, within a few blocks of Mr. Davis’ home,
and that, during the stop, the lights were flashing on at least
one of the squad cars. But, as plaintiff’s counsel admitted at
oral argument on the motion, any traffic stop involves some level
of embarrassment, as others pass by staring, wondering what the
subject of the stop might have done wrong. Mr. Davis’ arguments
to the contrary notwithstanding, the officers did and said
nothing that would have given any potential passerby any idea
that Mr. Davis had been stopped in connection with a call about a
potential pedophile. The officers did nothing that would have
indicated to a passerby that Mr. Davis was being detained for
anything other than a run-of-the-mill traffic violation; there is
nothing to suggest that they were, for example, making a show of
the thong they found, or speaking loudly about the 9~1-1 call, or
the fact that the items in Mr. Davis’ truck suggested that he
might have been the one taking pictures of kids. Officer Novy’s
search of the truck was limited in scope and duration, tailored
to achieve the officer’s reasonable objectives.

Further tipping the scales against Mr. Davis’ coercion

24


Minute Order Form (06/97}°

) G \g United States District Court, Northern District of Illinois

Name of Assigned Jud Sitting Judge if Other
vor Magistrate Judge Arlander Keys than Assigned Judge
CASE NUMBER 03 C 572 DATE 6/15/2004
CASE Michael E. Davis vs. Charles Novy and Luis Escobar
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented]

qa)

MOTION:

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) a Answer brief to motion due___. Reply to answer brief due.

(4) Oo Ruling/Hearing on___setfor___at

(5) Oo Status hearing[held/continued to] [set for/re-set for]on__—_set for__at

(C) a Pretrial conference(held/continued to] [set for/re-set for] on___setfor____at

(7) Qo Trial{set for/re-set for}on___at

(8) oOo {Bench/Jury trial] [Hearing] held/continued to____at t

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OOFRCP4(m) CLocal Rule 41.1 CUFRCP41(a)(1) OFRCP41(a)(2).

ao) i [Other docket entry] Memorandum Opinion and Order entered. The Court grants the Defendants’

motion for inggpent as a matter of law [#75]. The Clerk is directed to enter judgment in favor of the

Defendants.

| [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
2

No notices required. number of notices

Notices mailed by judges staff. “JUN 1.6 2004

Notified counsel by telephone. date docks
Docketing to mail notices. 6 A
Mail AO 450 form. docketing deputy initials

Copy to judge/magistrate judge.

nsr2004

date mailed notice
courtroom

Fr deputy’s SOS My Sy HUW 40g

Pane rr
initials

Date/time received in
central) Clerk's Office ‘a maiing deputy intals

Go fia



Officer Novy pulled Mr. Davis over, to the time he released him
from his custody - lasted less than two and a half hours. Tr. at
319.

With regard to the 9-1-1 call that set in motion the events
leading to trial, Officer Novy testified that he had had
specialized training in dealing with crimes against children and
with pedophiles, and that he was aware of another call that had
come in before the call that led to Mr. Davis’ arrest; the first
call came in roughly eleven days earlier; that call reported a
white male taking pictures of a child in the same area as the
February 9 call. Tr. at 241-44.

After Officer Novy, Mr. Davis called his treating
psychiatrist, Dr. Gerson Kaplan, to the stand. Dr. Kaplan
testified that he had been treating Mr. Davis since August of
2002, after Mr. Davis was referred to him by a colleague, Dr.
Daniel Shapiro. Tr. at 332. Dr. Kaplan testified that Mr. Davis
had come to see him because he was upset after the run-in with
Officers Novy and Escobar; Dr. Kaplan diagnosed Mr. Davis with
post-traumatic stress disorder (“PTSD”), and prescribed
antidepressants and various medications to help him sleep. fr.
at 333-35. Dr. Kaplan testified that, in his view, Mr. Davis
continues to suffer from PTSD as a result of the events of
February 9, 2002. Id. at 337-38, On cross examination, counsel

for the defendants raised a number of inconsistencies between

11



a pair of black thong underwear and a ticket stub to the
Brookfield Children’s Zoo. Tr. at 262-63. Officer Novy
testified that, after discussing the situation with Officer
Escobar, he advised Mr. Davis that he was under arrest for not
having a valid Illinois driver’s license, for having no insurance
and for having an improper display of his registration plate.

Tr. at 271. Officer Novy testified that he then patted Mr. Davis
down, had him empty his pockets, and placed him in the back of
his squad car; he did not handcuff Mr. Davis at this time, or
ever. Tr. at 272-74.

Officer Novy testified that he and Officer Escobar then
decided to ask Mr. Davis for permission to search his home; they
had him sign a “voluntary permission to search” card, Tr. at 276-
77, and then drove, with Mr. Davis in the backseat, to Mr. Davis’
house. Tr. at 280-82. Officer Novy testified that he searched
Mr. Davis’ house and garage for a total of about twenty-five
minutes, and found nothing unusual; they then went outside,
Officer Novy issued the three citations to Mr. Davis (one for
driving without a valid Illinois driver’s license, one for
driving an uninsured vehicle, and one for improperly displaying
his registration sticker), and completed some additional
paperwork, he apologized to Mr. Davis for taking up so much of
his time, and then the officers left. Tr. at 290-303. By

Officer Novy’s estimate, the entire encounter - from the time

10


rights. The Court further finds that, even if the evidence could
support Mr. Davis’ claims, the defendants are entitled to
qualified immunity for any constitutional violation that occurred
during the February 9, 2001 encounter. Accordingly, the Court
grants the defendants’ motion for judgment as a matter of law.

The Clerk is directed to enter judgment in favor of the

defendants.

Dated: June 15, 2004

ENTER:

QQerits toys

ARLANDER KEYS ,
United States Magistrate Judge

30



his truck and home, but that he did so because he felt coerced by
Officer Novy’s initial comment to him that the police had
received a call about someone taking pictures of children. Tr.
at 178-80. He later testified that he also felt coerced because
of Officer Novy’s statement that, if Mr. Davis did not allow the
officers to search his truck and his home, they would arrest him,
take him to jail, and impound his truck. Tr. at 181. Mr. Davis
testified that he also felt coerced when Officer Novy put him in
the backseat of his police car and closed the door. Id. at 182.

Next, the plaintiff called Officer Novy to the stand. He
testified that he was on duty at around noon on February 9, 2002
when he received a call on his MDT in his squad car indicating
that the department had received a complaint, via cell phone,
about a man in a truck taking pictures of kids. Tr. at 185.
According to the report, the suspect was a white male wearing a
hat and driving a black Ford pickup with a cab on the back; he
was reportedly driving near the intersection of Commonwealth and
Brighton in Bolingbrook. Tr. at 185, 188. Officer Novy
testified that he responded to that general area, where he saw
Mr. Davis’ truck, which, in his view, closely matched the truck
described in the report. Id. at 188~89.

Officer Novy testified that he pulled in behind Mr. Davis
and followed him for a time. Tr. at 245-46. He further

testified that he then noticed that the registration sticker on


the same vehicle was showing a clear violation of the Illinois
Vehicle Code. Id. at 246-47. Such dual motives are permissible.
Once the vehicle code violation is established, the stop is
constitutional; Officer Novy’s mixed motives don’t destroy the
constitutionality of that traffic stop. See Whren, 517 U.S. at
812-13 (an otherwise valid traffic-violation arrest is not
rendered invalid by the fact that it was "a mere pretext for”
some other type of search; the constitutional reasonableness of
traffic stops does not depend on the actual motivations of the
individual officers involved). The evidence on this point yields
only one possible conclusion: Officer Novy initially stopped Mr.
Davis, at least in part, because of the obstructed registration
sticker. The stop was, therefore, based upon reasonable
suspicion of criminal activity ~ namely, a violation of the
Illinois vehicle code provision requiring registration stickers
to be clearly visible ~ and, therefore, satisfies the Fourth
Amendment.

The Court next considers Mr. Davis’ claim concerning the
searches of his truck and his home. A search conducted pursuant
to a valid consent is constitutionally permissible. E.g.,
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); United
States v. Scheets, 188 F.3d 829, 839 (7th Cir. 1999). To be
valid, consent must be voluntarily given, however, and

voluntariness is gauged by looking to the totality of all the

21


sticker, the stop was constitutional and Officer Novy could not
be held liable for any harm Mr. Davis suffered. But even if the
Court assumes, as Mr. Davis argued, that Officer Novy pulled him
over solely because of the 9-1-1 call, and that Officer Novy did
not notice the sticker until after he stopped Mr. Davis, the
Court finds that Officer Novy would still not be liable to Mr.
Davis because he would be entitled to qualified immunity.
Although the Court has determined that, under Florida v.
J.L., the 9-1-1 call alone could not have provided reasonable
suspicion to stop Mr. Davis, the Court nonetheless recognizes
that Officer Novy may reasonably have concluded that, under the
circumstances, the stop was justified. Officer Novy testified
that, with his experience and training, a number of things about
Mr. Davis raised red flags from the outset. First, Mr. Davis’
truck matched the description of the truck identified in the
9-1-1 call. Second, Officer Novy testified that, in his view,
Mr. Davis’ behavior was suspicious: when Officer Novy first saw
Mr. Davis, he was stopped at the side of the road, and, at least
from Officer Novy’s perspective, it appeared that Mr. Davis saw
the squad car and then began moving. Tr. at 246. Officer Novy
also testified that, at the time he responded to the MDT on
February 9, 2002, he had information about another call that had
come in to the dispatch center eleven days earlier; the call

reported a white male taking pictures of a child in the same

27


Officer Escobar joined the two at some point during this
initial encounter. The officers searched Mr. Davis’ truck, after
obtaining Mr. Davis’ permission to do so, and found a pair of
women’s thong underpants and a stub from the Brookfield
Children’s Zoo. They then asked him to sign a card stating: “I
give the Bolingbrook police department permission to search the
following: (here, Officer Escobar had filled in “residence”]
located at the following: [here, Officer Escobar had filled in
1095 Bothwell,” Mr. Davis’ address]. I give this permission
voluntarily & without threats or promises of any kind.” See
Plaintiff’s Exhibit 8. Mr. Davis signed the card, and the
officers searched his home. That search turned up nothing to
suggest that Mr. Davis was involved in any way with child
pornography or other child exploitation.

After the search, the officers and Mr. Davis went back
outside, where Officer Novy issued citations to Mr. Davis for
driving without a valid Illinois’ driver’s license, for driving
an uninsured vehicle, and for having an obstructed registration
sticker on his rear license plate - all violations of the
Illinois vehicle code. Officer Novy allowed Mr. Davis to give a
signature in lieu of posting a bond, and then he left; Officer
Escobar left while Novy was writing up the citations.

Almost a year later, on January 24, 2003, Mr. Davis sued

Officer Novy and Officer Escobar, alleging that they violated his



and that he either suggested that the officers search his truck,
or Officer Novy asked him if they could search his truck and he
said yes. Tr. at 459, 463. In Officer Escobar’s view, Officer
Novy behaved in a very professional manner in his dealings with
Mr. Davis, and Mr. Davis, in turn, was very cooperative with the
officers; Officer Novy was never verbally abusive or threatening;
he never touched Mr. Davis, never touched his weapon or otherwise
gestured in a manner that could be perceived as threatening. fr.
at 464-65.

Officer Escobar testified that, after Officer Novy searched
the truck, he told him what he had found, and told him that he
wanted to ask Mr. Davis if they could search his house; Officer
Escobar agreed that the items in Mr. Davis’ truck ~ the thong and
the zoo stub - were cause for concern. Tr. at 466, 468. Officer
Escobar testified that he got a consent to search card from his
car, filled it out and presented it to Mr. Davis; he testified
that he read the card verbatim to Mr. Davis, and that Officer
Novy also explained the card, in his own words, to Davis. Tr. at
468-70. Shortly thereafter, Mr. Davis signed the card; according
to Officer Escobar, Mr. Davis at no point gave any indication -
physical or verbal - that he was unwilling or hesitant to allow
the search; on the contrary he remained cooperative throughout.
Tr. at 471.

With respect to the search of the house, Officer Escobar

14


reasonable inferences in favor of the nonmoving party; the Court
may not make credibility determinations or weigh the evidence,
but gives credence to the evidence favoring the nonmovant, as
well as that “evidence supporting the moving party that is
uncontradicted and unimpeached ... .” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000); Ortloff v.
U.S., 335 F.3d 652, 660 (7th Cir. 2003) (citing Payne v. Milwaukee
County, 146 F.3d 430, 432 (7th Cir. 1998)); Pease v. Production
Workers Union of Chicago, No. 02 C 6756, 2004 WL 526369, at *2
(N.D. Ill. March 15, 2004). “To avoid [an unfavorable ruling
under Rule 50(a)], the plaintiff must do more than argue that the
jury might have disbelieved all of the defendant's witnesses”; he
“must offer substantial affirmative evidence to support [his]
argument.” Heft v. Moore, 351 F.3d 278, 284 (7th Cir.

2003) (citing Perfetti v. First National Bank, 950 F.2d 449, 456
(7th Cir. 1991)).

In this case, Officers Novy and Escobar moved for judgment
as a matter of law on all of Mr. Davis’ claims, arguing, first,
that Officer Novy had probable cause to initiate a traffic stop
of Mr. Davis’ truck, and, second, that the searches of Mr. Davis’
person, truck and house were consensual and, therefore, lawful.
Officer Escobar also argues that he is entitled to judgment as a
matter of law because his role in the events giving rise to any

alleged constitutional violation was limited at best. And,

16


document a problem with the way the village plowed snow;
according to Mr. Davis, the plows piled the snow in a way that
blocked his access to streets and sidewalks and prevented him
from taking his dogs out for exercise. Mr. Davis left his house
at about 11:30 a.m., driving around the neighborhood in his 1995
dark green Ford F150 pickup truck with a black camper shell on
the back of it.

At about noon that same day, the Bolingbrook police
department received a call through its 9-1-1 dispatcher,
complaining that a white male was driving around the area of
Commonwealth and Brighton in Bolingbrook, taking pictures of a
young girl. The caller reported that the man was wearing a hat
and driving a black Ford pickup truck with a cab on the back.

The dispatcher assigned two officers to respond to the call,
Officer Charles Novy and Officer Luis Escobar.

Upon arriving at the general area reported in the call,
Officer Novy saw Mr. Davis, a white male, and his dark green Ford
pickup truck with a cab on the back of it. Officer Novy followed
Mr. Davis for a bit, and then pulled him over. Upon doing so,
Officer Novy noticed a hat and a camera bag on the seat next to
Mr. Davis; he also saw towels, duct tape and rope in the cab.
When Mr. Davis could not provide a valid Illinois driver’s
license or proof of insurance, Officer Novy arrested him, placing

him in the backseat of his squad car.



argument is the fact that he is highly educated - by his own
admission, he has two master’s degrees and an uncompleted
doctorate degree; he is also older than both of the officers. To
the extent he was vulnerable because of his inability to walk
great distances, his education, work experience, and age would
seem to have balanced that out. See, e.g., Schneckloth, 412 U.S.
at 226 (in determining whether a person’s will was overborne, the
Court considers, among other things, the person’s age and lack of
education, level of intelligence).

In view of all of the surrounding circumstances, including
most notably the officers’ demeanor, Mr. Davis’ physical and
mental capabilities, and the duration and scope of the
intrusions, Mr. Davis consented to the searches of his truck and
his home, and those consents were voluntary. No reasonable jury
could have found otherwise.

D. Qualified Immunity

Finally, even if the consents were invalid, and even if the
initial stop or subsequent searches fell short of satisfying
Fourth Amendment standards, the Court finds that the officers
would have been shielded from any liability under the doctrine of
qualified immunity.

“[G]lovernment officials performing discretionary functions”
are shielded from liability “as long as their actions could

reasonably have been thought consistent with the rights they are

25


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOCKETED

MICHAEL E. DAVIS,
JUN 1 6 2004

Plaintiff, No. 03 C 572

v.
Magistrate Judge
CHARLES NOVY and LUIS ESCOBAR, Arlander Keys
individually and in their capacity
as Bolingbrook police officers,

Defendants.

MEMORANDUM OPINION AND ORDER

Michael Davis sued Charles Novy and Luis Escobar, both
police officers with the Village of Bolingbrook, alleging that
they violated his Fourth Amendment rights during the course of a
traffic stop and the subsequent search of his truck and his home.
The case went to trial on May 17, 2004, and, at the close of the
plaintiff's case, the officers moved for judgment as a matter of
law. For the reasons explained in this Memorandum Opinion and
Order, the Court grants the officers’ motion.

A. Factual Background

On February 9, 2002, Michael Davis was driving around his
Bolingbrook neighborhood taking pictures of snow mounds. Mr.

Davis, who uses a wheelchair to get around, was attempting to

7



area, though the car described in the earlier call was markedly
different from the truck described in the second call. Asa
result of that call, the department had placed that neighborhood
on its “frequent patrol” list; officers were paying an
exceptionally high degree of attention to that neighborhood, with
the express purpose of preventing child exploitation in the area.
With his training and experience, Officer Novy could reasonably
have believed that these things combined were enough to justify
an investigatory stop. Once he made the stop, and once he saw
the hat, the camera bag, the duct tape, the rope, and the towels
- all in plain view in the cab of Mr. Davis’ truck - he
reasonably could have believed that further investigation was
warranted; indeed, under those circumstances, it is difficult to
imagine that any police officer would have behaved differently.

Moreover, based upon Mr. Davis’ conduct - which, by Mr.
Davis’ own admission, indicated a desire to cooperate, and in no
way indicated a desire to stop or prevent the searches - Officer
Novy could reasonably have believed that Mr. Davis voluntarily
consented to the searches of his truck and his home. Based on
this evidence, the Court finds that, even if the searches ran
afoul of the Fourth Amendment, Officer Novy would not be liable
for any resulting damages.

As a practical matter, given the evidence adduced at trial,

the Court’s qualified immunity analysis with respect to Officer

28


what Mr. Davis had reported to Dr. Kaplan, and what he had
reported to the psychiatrists he had seen in the past, and these
seemed to surprise Dr. Kaplan. Ultimately, Dr. Kaplan conceded
that Mr. Davis’ behavior was as consistent with paranoid disorder
as it was with PTSD, and that, to the extent Mr. Davis suffered
from PTSD, it was not necessarily triggered by the February 9,
2002 encounter with Officers Novy and Escobar; in fact, Dr.
Kaplan conceded, Mr. Davis had experienced a number of events
before that day that could have been perceived as traumatic and
could have triggered the PTSD. Tr. at 351-67.

After Dr. Kaplan, the plaintiff called Pamela Carter, who
works in telecommunications with the Bolingbrook police
department; Ms. Carter testified about how the calls coming in to
the dispatch center are logged and how various codes on the call
sheets are interpreted. Tr. at 405-22.

Finally, Mr. Davis called Officer Escobar to the stand.
Officer Escobar testified that he received the 9-1-1 call on his
MDT and responded to the scene. Officer Escobar testified that
he briefly investigated the matter, but he obtained no additional
information on the incident, and he reported this fact to Officer
Novy, who had also been assigned to the call. Tr. at 436-41.
Officer Escobar testified that he then learned that Officer Novy
had initiated a traffic stop in connection with the call, and so

Officer Escobar began heading in the direction of that stop; when

12



testified that he did not really participate, he did not go
through boxes or anything like that; instead, his role was to
help assure Officer Novy’s safety during the search. Tr. at 473-
75. Officer Escobar testified that the three went back outside
before 2:00 p.m., he helped to start the paperwork and then he
left, making a brief stop to report to the supervising sergeant
(who was parked just down the street), before heading back to the
station. Tr. at 476-77,

c. The Motion for Judgment as_a Matter of Law

At the close of Mr. Davis’ case, which, because of the way
the witnesses were called and examined, actually include a large
part of the officers’ case, the defendants moved for judgment as
a matter of law. The Court indicated that the motion would be
granted, and briefly explained why. The purpose of this
Memorandum Opinion and Order is to memorialize, and detail the
reasoning behind, the Court’s decision on the defendants’ motion.

The Federal Rules of Civil Procedure provide that,

{i]f during a trial by jury a party has been fully

heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for

that party on that issue, the court may determine the

issue against that party and may grant a motion for

judgment as a matter of law against that party with

respect to a claim or defense that cannot under the

controlling law be maintained or defeated without a

favorable finding on that issue.

Fed, R. Civ. P. 50(a). In deciding a motion under Rule 50(a),

the Court reviews all of the evidence in the record and draws all

15