Wilson v. Schwandt

DERRICK WILSON, Plaintiff, v. FAWN SCHWANDT, RODOLFO ALVARADO, CHRISTOPHER SCHLACHTER, WILLIAM SHEEHAN, ANNE PORTNOY, PAUL BJORKQUIST, MICHAEL ALLES, and WARREN ALLEN, Defendants.

No. 20-CV-699

United States District Court, E.D. Wisconsin

August 11, 2022

DECISION AND ORDER

WILLIAM E. DUFFIN United States Magistrate Judge.

Plaintiff Derrick Wilson, who is representing himself and confined at Racine Correctional Institution, brings this lawsuit under 42 U.S.C. § 1983. Wilson was allowed to proceed on the following claims: a claim under the Fourth Amendment against Detective Anne Portnoy, Detective Fawn Schwandt, Lieutenant Paul Bjorkquist, and Captain Warren Allen for effectuating his seizure using false information; a claim under the Fourth Amendment against Detective Rodolfo Alvarado and Detective Christopher Schlachter for searching his home without a warrant or consent; a claim under both the Fifth and Fourteenth Amendments against Alvarado and Schlachter for interrogating Wilson without an attorney present; and a claim under the Fourth Amendment against Lieutenant William Sheehan and Detective Michael Alles for coercing Wilson into allowing them to search his cellphone.

On November 6, 2021, the defendants moved for summary judgment. (ECF No. 53.) After the defendants filed their motion, the court allowed Wilson to replace a John Doe defendant placeholder with Bjorkquist (ECF No. 73), and the defendants moved to amend their summary judgment motion (ECF No. 77). Rather than have the defendants file an amended motion for summary judgment, the court denied without prejudice the defendants' motion for summary judgment and gave them leave to refile their summary judgment motion. (ECF No. 78.) On February 8, 2022, the defendants filed their second motion for summary judgment. (ECF No. 79.) That motion is fully briefed and ready for a decision. The parties have consented to the jurisdiction of a magistrate judge. (ECF Nos. 4, 17.)

FACTS

Parties

Plaintiff Derrick Wilson was arrested and subsequently convicted for an armed robbery that occurred on June 14, 2017. (ECF No. 105 ¶¶ 1-2.) All of the defendants were employed by the City of Milwaukee Police department during the course of the relevant events and played some role in the investigation of the June 14 armed robbery. Defendants Anne Portnoy, Fawn Schwandt, Christopher Schlachter, Rodolfo Alvarado, William Sheehan, and Michael Alles were detectives. (Id. ¶¶ 3, 5, 7-10.) Defendant Warren Allen was a Captain, and defendant Paul Bjorkquist, currently a lieutenant, was a sergeant at the time of the armed robbery. (Id., ¶¶ 4, 6.)

Issuance of the Temporary Felony Warrant and Probation Hold

On June 14, 2017, an armed robbery occurred at the American Inn Motel located at 6798 West Appleton Avenue in Milwaukee, Wisconsin. (ECF No. 10, ¶ 21.) Unnamed police officers (who are not defendants) arrived at the scene to investigate. (Id., ¶ 23.) During their investigation, which occurred over the course of two days, the officers interviewed the victim, who was the main witness, and collected evidence from the hotel room that the suspect allegedly stayed in, Room 215. (Id., ¶¶ 23- 24; ECF No. 104-2, ¶ 2.) The victim stated that the suspect was the only one in and out of Room 215 that day. (Id.) He also described the suspect as a man in his late thirties to early forties. (Id., ¶ 33.) Wilson states that surveillance video footage retrieved by nondefendant Detective McClendon shows that there were two individuals who entered and left Room 215 that day. (Id.) However, Wilson did not provide the footage to the court.

According to Wilson, McClendon was in charge of the investigation of the crime scene and ordered Forensics Investigator Muhammad (also not a defendant) to “process” Room 215. (ECF No. 104-2, ¶ 2.) Muhammad reported recovering four latent fingerprints. (Id.) Wilson states that non-defendant Examiner Jacobs decided to discard these prints on June 15, 2017, and no other investigators or detectives questioned why or had the prints analyzed. (Id. ¶ 3.) However, Wilson does not explain his basis for this assertion.

Wilson also states that McClendon collected a plastic garbage bag which contained two fingerprints. (ECF No. 104, ¶ 25.) According to Wilson, when the Milwaukee Police Department Forensics lab analyzed the plastic garbage bag for fingerprints, they only processed one of the two prints on the bag. (Id., ¶ 25.) The basis for Wilson's assertion is unclear. Regardless, it is undisputed that one fingerprint was identified as Wilson's. (Id., ¶ 25.)

On June 16, 2017, at approximately 9:50 a.m., Captain Allen received an email informing him that Wilson's fingerprint was found at the crime scene. (ECF No. 105, ¶ 26.) Allen states he asked Detective Portnoy to review the data surrounding the fingerprint and run a background check on Wilson. (Id., ¶ 27.) Wilson states that Allen was the one who ran the background check on him and discovered that Wilson was on probation. (Id.) Allen then “suddenly believed that Wilson was the criminal suspect and that his physical description matched the description of the suspect as described by the victim. It was only after this determination, without any further investigation whatsoever, that Capt. Allen personally contacted Det. Portnoy.” (Id.) While Wilson is correct that Allen, in his declaration, states that he ran Wilson's criminal history in Teletype prior to delegating the investigation to Portnoy (contradicting the defendants' proposed findings of fact), Wilson does not explain the basis for his statement that Allen “suddenly believed” that Wilson was the suspect. (ECF No. 86, ¶¶ 6-8.)

It is undisputed that Portnoy used the Teletype database to conduct her investigation. (ECF No. 105, ¶ 28.) The Teletype database “is a law enforcement communications network that scans for outstanding warrants, parole and other suspect information on any identified suspect in a criminal investigation.” (Id., ¶ 14.) Portnoy also reviewed official reports and other search archives available to her and determined that Wilson was on probation under the custody of the Wisconsin Division of Community Corrections (DOCC), having been convicted of a previous armed robbery similar in nature to the June 14 armed robbery. (Id., ¶ 29.) As a result, Portnoy believed that Wilson was in violation of his probation terms. (Id., ¶ 30.) Portnoy attempted to reach Wilson's probation agent, and the cover agent of record (a cover agent is the agent who covers the investigation of a probation violation), and when both were unavailable Portnoy left each of them a voicemail. (Id.)

Portnoy then issued a Temporary Felony Want and Suspect Alert (TFW)^[1], which “is an interdepartmental memo stating that law enforcement has found there is probable cause to arrest a suspect for a temporary period of time for suspected criminal acts.” (ECF No. 105, ¶¶ 16, 31.) On the TFW for Wilson, setting forth probable cause for his arrest, Portnoy wrote:

On 6/14/17, an armed robbery took place at the American Inn Hotel at 6798 W. Appleton Ave in the city and county of Milwaukee. The victim/hotel employee identified the actor as the subject that was staying in Room 215. Room 215 was processed and all items left behind by the suspect were checked for prints. A latent hit on a plastic garbage bag was identified as the above listed actor [Wilson], who was the only person in and out of the room during the stay. Wilson's physical description matches that of the suspect as related by the victim. Obtained was $1000 in U.S. currency. Suspect was armed with a chrome handgun.

(ECF No. 81-3 at 2.)

Wilson asserts that Portnoy intentionally omitted the information about the four fingerprints that Muhammad recovered and the additional print on the garbage bag. (ECF No. 104, ¶ 33.) He also states that she falsely reported that he was the only one in and out of Room 215 despite the fact that the surveillance video showed two men entering and leaving Room 215. (Id.) Wilson further asserts that Portnoy falsely claimed that he met the physical description given by the victim that described the suspect as “late thirties to early forties” because Wilson was 28 at the time of his arrest. (Id.) Portnoy states that she did not fabricate or falsify any detail when writing her probable cause statement. (Id., ¶ 33.)

Captain Allen, Portnoy's supervisor, reviewed her TFW, including the probable cause statement. (ECF No. 105, ¶ 35.) He determined “that it was an accurate representation of the facts, data, evidence, statements, and fingerprint match.” (Id.) He then signed off on issuing the TFW. (Id., ¶ 35.) Wilson states that Allen had “a legitimate reason to be suspicious as to MPD having probable cause to arrest Wilson” and therefore had an obligation to do further investigation. (Id.)

On June 17, 2017, Detective Schwandt received the TFW and arrested Wilson in front of his mother's home. (ECF No. 105, ¶ 39.) Schwandt states that she reviewed the police reports, the victim statements, the descriptions, the fingerprint analysis, in addition to the TFW, and reasonably believed she had sufficient probable cause to arrest Wilson. (ECF No. 86. ¶ 5.) Wilson states that Schwandt arrested him based off of a warrant issued by Portnoy, and that the warrant was “not supported by oath or affirmation.” (ECF No. 105, ¶ 39.) Wilson contends that, because the warrant lacked probable cause, his arrest was unlawful. (Id.) It appears that Wilson considers the TFW an arrest warrant. Confusingly, Wilson later contends his arrest was warrantless. (Id., ¶ 43.) The defendants also characterize the arrest as warrantless. (Id., ¶ 41.)

After Wilson's arrest, Detective Schwandt filled out Milwaukee Police Department form PA-45, which...