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Illegal search worth $90,000, jury says

Barbara L. Jones//March 13, 2014

Illegal search worth $90,000, jury says

Barbara L. Jones//March 13, 2014

In Florida v. Jardines last year, U.S. Supreme Court Justice Antonin Scalia explained some rules of good manners:  When visiting someone’s home, first knock, then wait to be invited inside and, absent such invitation, leave. “Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters,” Scalia wrote.

But according to U.S. District Court Judge Ann Montgomery, some officers of the city of Champlin Police Department didn’t manage it on the night of Jan. 8, 2010.

Investigating a report of a burglary at an animal hospital, the police entered the back porch of the home of plaintiffs Ronald Rosen and June Trnka, removed a pair of Rosen’s sneakers, and wrote police reports stating that the shoes matched prints in the snow at the crime scene. About two weeks later a search warrant application was based on the seizure of the shoes. The police acted knowing that the search was illegal and that the evidence didn’t connect Rosen to the crime, said the plaintiffs’ attorney, Paul Applebaum of St. Paul, in court filings. League of Minnesota Cities attorney Jason Hively told Minnesota Lawyer the police acted reasonably and in good faith.

In a civil lawsuit against the city for an unreasonable search and seizure, Montgomery granted a directed verdict for the plaintiffs on liability for violations of 42 U.S.C. sec. 1983. The jury awarded $90,000 in damages, including $70,000 in punitive damages. Earlier in the proceedings the judge dismissed state law tort claims for false imprisonment, trespass and conversion based on immunity.

The city will bring post-trial motions and also intends to appeal to the 8th Circuit, Hively said. The main issue is the court’s error in denying summary judgment to the city on the issue of the constitutionality of the entry into the porch, he said. “If the entry was reasonable, everything else was reasonable,” he said. “We’re hopeful that the 8th Circuit will resolve the issue and the rest of the case will go away.”

The case took two years because the defense made it much more difficult than it needed to be by refusing to negotiate, making a final offer of only $1,000, Applebaum said. “The Champlin city attorney made fun of the case for years. My clients showed such strength in refusing to cave in.”

That’s a perplexing comment, Hively said, because the city didn’t receive a demand until a month before trial. “I would question where we made fun of the case.”

Knock-and-talk rule

On Jan. 8, 2010, Champlin police, including defendants Sergeant Bill Schmidt and Officer Roxanne Affedlt, responded to a burglary report at Elm Creek Animal Hospital. There were several inches of new snow on the ground. A K-9 led the police for a while and then stopped the trail. The police continued to the plaintiffs’ home, although the dog was not following a track. But near the plaintiff’s home, the K-9 led police to the back of the house to a four-season porch. They entered the unlocked porch and began knocking on the back door, but got no answer. They found a pair of sneakers that had snow on them. They seized the sneakers, left without leaving a receipt and returned to the animal hospital.

The defendants argue that the case stops there because the entrance on to the porch was reasonable and constitutional, making everything that came later also constitutional.

But Montgomery instructed the jury that the entry on to the property resulted in a constitutional violation. The judge rejected the defendants’ argument that the entry onto the porch and the seizure of the shoes fell within the scope of the knock-and-talk rule, which in turn would have meant the defendants were entitled to qualified immunity.

The knock-and-talk rule gives as an officer limited license to approach a residence by whatever appears to be the normal route of access for the general public, in an effort to make contact with the occupants to gather evidence, defendants wrote in a brief to the court. If the entry into the porch was a permissible knock-and-talk, the seizure of the shoes was lawful because they were evidence in plain view, defendants say. (The plaintiffs assert that the police searched through the boots and shoes on the porch.) The judge’s ruling meant the search was warrantless and since there were no exigent circumstances, the Fourth Amendment was violated.

After leaving the porch, the police returned to the animal hospital.

Schmidt wore a lapel microphone that recorded the police conversations during the investigation. “Discussing the case near the hospital, the officers concluded that they lacked any evidence to obtain a warrant to enter and search Plaintiffs’ house,” Montgomery wrote in an order granting in part and denying in part summary judgment for the defendants. “Although the recording of the [police] conversation is somewhat unclear, the officers appeared to be comparing Rosen’s shoes to the footprints at the scene of the break-in. At one point, Schmidt stated, ‘Those [footprints] are cowboy boots. That’s not the shoes I got,’” Montgomery wrote. But, she continued, “Schmidt’s on-the-scene guess as to the nature of forensic evidence does not demonstrate a knowing or reckless lie in his subsequent, official police report.”

Montgomery also wrote, “Both Officers Schmidt and Affeldt wrote [in the police report] that Rosen’s shoes appeared to match the footprints found outside of the animal hospital.” But the judge also noted that there was no evidence that the officers knowingly or intentionally included false information, instead they relied on information from other police.

Two weeks later, Detective Brian Wentworth obtained a search warrant and searched the premises, with Schmidt’s knowledge. “Detective Wentworth had not inspected any evidence nor viewed any police photographs at the time of writing the search warrant application,” but he did not make any knowing or reckless false statements, Montgomery wrote. Instead, he reasonably relied on reports written by the officers, she said.

As the warrant was executed, the contents of the house were turned upside down. “After over an hour of interrogation, Wentworth then began implicating Rosen’s children and Plaintiff Trnka in the theft, stating, ‘Someone’s being booked in for burglary today. It’s you, or one of these other people here. Pick one,’” Montgomery wrote. The judge ruled that the detention was not unconstitutional. Eventually, Wentworth returned the plaintiff’s shoes and apologized. He was moved from detective to police officer status after the incident.

Attorney fees

The Applebaum Law Firm requested fees of $255,929 after striking uncompensable time from its records. It submitted a log of fees of $130,072 for work done at $450 per hour by Applebaum; $99,427 for work done by attorney Andrew Irlbeck at $225 per hour; $1,624 for law clerk work by Irlbeck at $95 per hour and $24,804 for law clerk work by Elizabeth Meske at $95 per hour.

The fee request was supported by attorneys Earl Gray, Paul Engh, Eric Hageman and Frederick Goetz, all of whom said the fee request was low and that a 50 percent enhancement of the lodestar amount would not be unreasonable.

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