This case is no different. The dispositive question of whether St. John is entitled to
qualified immunity depends on whether he knew or should have known that his conduct in
searching Bourke and Hood’s apartment violated the law. I could only determine this by
considering facts,outside of the complaint. I am therefore obligated either to ignore the facts
extraneous to the complaint that St. John included in his Memorandum or to convert his motion
to one for summary judgment and provide both parties an opportunity to submit supplemental
materials. See id. at 766; Fed. R. Civ. P. 12(b). Given the specific nature of the facts potentially
at issue here, I think it prudent not to convert the motion into a Rule 56 motion. Accordingly, I
will consider only the sufficiency of the allegations made in the complaint itself in determining
whether it states a claim upon which relief may be granted.

First, Plaintiffs sufficiently allege in the complaint that St. John’s conduct amounted to a
constitutional violation. They claim that the dwelling at 17630 South Highland Ave. is a multi-
unit dwelling with separate entrances to the first and second floor apartments, which are not
connected inside the building and for which Plaintiffs and Shane Bourke have separate leases.
They allege that St. John did not have probable cause to search the entire structure. At the time
that St. John entered and searched Plaintiffs’ home, it was well-established that probable cause to
search one apartment in a multi-unit building does not support a warrant authorizing a search of the
entire building. See Jacobs, 215 F.3d at 767; United States v. Butler, 71 F.3d 243, 248 (7th Cir.
1995); Maryland v. Garrison, 480 U.S. 79, 85 (1987); United States v. Hinton, 219 F.2d 324, 326
(7th Cir. 1955). A warrant authorizing a search of an entire multi-unit building is “fatally defective
‘when the warrant authorizes the search of an entire structure and the officers do not know which

unit contains the evidence of illegal conduct.” Jacobs, 215 F.3d at 767 (quoting United States v.


applies unless the conduct alleged in the complaint, viewed in the light most favorable to the
plaintiff, sets forth a constitutional violation and the constitutional right at issue was clearly
established at the time of the alleged violation. Saucier v. Katz, 533 U.S. 194, 200-01 (2001).
The dispositive inquiry in determining whether a right is clearly established is whether it would
be clear to a reasonable officer that his conduct violated that right. Jacobs, 215 F.3d at 766
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Saucier, 533 U.S. at 202;
Wilson v. Layne, 526 U.S. 603, 615 (1999). If Supreme Court precedent and Seventh Circuit
decisions had not put the officer on notice that his conduct would be unlawful, then qualified
immunity must apply. See Saucier, 533 U.S. at 202 (citing Malley v. Briggs, 475 U.S. 335, 341
(1986)); Jacobs, 215 F.3d at 767. But if an officer makes a reasonable mistake about what the
law requires, he is nevertheless entitled to immunity. Saucier, 533 U.S. at 205; see also Hunter
v, Bryant, 502 U.S. 224, 229 (1991).

Furthermore, qualified immunity is a defense to suit, not just to liability. Saucier, 533
U.S. at 200. The issue should be considered at the earliest possible opportunity. Jd; see also
Jacobs, 215 F.3d at 765 n.3; Crawford-El v. Britton, 523 U.S. 574, 598-99 (1998). While the
Seventh Circuit has held that qualified immunity may be decided as early as a Rule 12(b)(6)
dismissal, it noted that it must be on the basis of the facts alleged in the complaint only. See
Jacobs, 215 F.3d at 765 n.3, 766. While St. John is entitled to assert a defense of qualified
immunity, he is not entitled to have the court consider the defense at this stage of the proceedings
if facts outside the complaint are needed in order to do so. See Jacobs, 215 F.3d at 774-75
(Easterbrook concurring); ¢f Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). Moreover,

existence of qualified immunity usually depends on the particular facts of the case. Jd. at 765.



Johnson, 26 F.3d 669, 694 (7th Cir. 1994)). If, however, the officer knows there are multiple units
and believes there is probable cause to search each unit, or if the subjects of the warrant have
access to the entire structure, then the warrant would be valid. Johnson, 26 F.3d at 694. Yet, even
if a warrant for a building’s address is found to be valid at the time it was issued, its execution may
amount to a constitutional violation if the officers discover after its issuance that the house is a
multi-unit structure and neither of the exceptions above apply. See Jacobs, 215 F.3d at 769.
Second, Plaintiffs sufficiently allege facts from which I can reasonably infer, when taking
them in a light most favorable to the Plaintiffs, that a reasonable officer would have known, after
arriving to search the house pursuant to the warrant, that there were two apartments and
searching both would violate established law. See Jacobs, 215 F.3d at 769. The complaint does
not indicate whether or not Shane Bourke had access to both apartments, and without additional
information, I cannot yet determine that St. John was reasonable in believing that his actions
were consistent with clearly established law. Consequently, I find that Plaintiffs sufficiently
alleged facts in support of their claim against St. John, and I cannot at this time determine

whether St. John is entitled to qualified immunity.

For the reasons stated above, St. John’s Motion to Dismiss is DENIED.

ENTER:

\\ 1B? aA
Jamgs B. Zagel t]
Unifed States DiStrict Judge

DATE: Sy Zo0'\


Minute Order Form (06/97)

Jf United States District Court, Northern District of Illinois
wege Magsrate Judge James B. Zagel Stan Anired Judge
CASE NUMBER 04C 1153 DATE 7/6/2004
CASE BOURKE, ET AL vs. ST. JOHN, ET AL
TITLE

of the motion being presented.]

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

opinion and order.

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

MOTION:
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) Oo Answer brief to motion due___. Reply to answer briefdue___.
(4) a Ruling/Hearing on setfor__—_at
(5) a Status hearing[held/continued to] [set for/re-set for]on__ssetfor__—__at. |
(6) oO Pretrial conference[held/continued to] (set for/re-set forlon__———ssetfor__———saat__—
(7) oO Trial[set for/re-set for]on__at
(8) 0 (Bench/Jury tial] [Hearing] held/continuedto__at
(9) im) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (Local Rule 41.1 OFRCP41(a)(1) OOFRCP41(a){2).
qo =f {Other docket entry] | Defendant St. John’s motion to dismiss is denied. Enter memorandum

No notices required, advised in open court.

No notices required,

—Nuaaher!

Document

Notices mailed by judge's staff.

Notified counsel by telephone, JUL 13 2004
wv | Docketing to mail notices. [J
Mail AO 450 form. 4
Copy to judge/magistrate judge. unos Lowisia “Sn
Py to judge/magistrate judg 1 1S U

bw tepuy's 1e:9 Wd ZI WNC ALO
initials -
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED

MARY BOURKE and CHARLES HOOD, JUL 1 3 2004
Plaintiffs,
v. No. 04 C 1153
Judge James B. Zagel
VILLAGE OF TINLEY PARK and PAT
ST. JOHN,

Defendants.

MEMORANDUM OPINION AND ORDER

On November 7, 2003, Defendant Officer Pat St. John secured a warrant to search the
residence of Shane Bourke at 17630 S. Highland Ave. for drugs and drug paraphernalia. At
approximately 8:30 p.m. on that same day, St. John and other officers entered and searched the
first floor of the residence, where Plaintiffs Mary Bourke and Charles Hood reside, and the
second floor, where Shane Bourke resides. Mary Bourke and Charles Hood allege that St. John
entered and searched their home without a proper warrant or probable cause, the warrant for
17630 S. Highland Ave. being insufficient to support entry to their apartment. They further
allege that the single family residence at the address is actually a separate and multi-unit dwelling
with two apartments that are not connected internally and have separate entrances.

As a result of this incident, Bourke and Hood have brought a four-count civil rights suit
against the Village of Tinley Park and St. John. Counts I and II, against St. John only, allege
deprivation of rights in violation of the Fourth and Fourteenth Amendments and 42 U.S.C.

§ 1983, namely, to be free from a warrantless, illegal entry and search of their home and to be

free from illegal seizures and excessive force. Counts III and IV allege violations of Illinois law

et ai hain mana limac, Lema


by both Tinley Park and St. John. Plaintiffs seek compensatory and punitive damages on all
counts and court costs and attorney’s fees on Counts I and II pursuant to 42 U.S.C. § 1988.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), St. John moves to dismiss Count I, which
alleges illegal entry and search of Plaintiffs’ home.

A motion for dismissal of a § 1983 suit under Rule 12(b)(6) is a “delicate matter that
district courts should approach carefully.” Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th
Cir. 2000). In reviewing a Rule 12(b)(6) motion to dismiss, I must examine the sufficiency of
Plaintiffs’ Complaint rather than the merits of their lawsuit. See Triad Assoc. v. Chicago Hous.
Auth,, 892 F.2d 583, 586 (7th Cir. 1989). I should grant the motion only if they cannot offer
facts that would entitle them to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Venture
Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 432 (7th Cir. 1993). In reviewing the
sufficiency of their Complaint, I must draw all inferences and resolve all ambiguities in the
Plaintiffs’ favor and assume that all well-pleaded facts are true. See Dimmig v. Wahl, 983 F.2d
86, 87 (7th Cir. 1993).

In moving to dismiss Count I, St. John claims: (1) that Plaintiffs did not state an
allegation required to support their § 1983 claim, namely that St. John knew or should have
known that the warrant at issue was inaccurate or invalid because their residence at 17630 South
Highland Avenue was a multi-family dwelling, and (2) that absent such an allegation, St. John is
entitled to qualified immunity. Qualified immunity generally shields government officials
performing discretionary functions from liability for civil damages as long as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person

would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), Qualified immunity