Opinion
NO. IP 00-0039-C-T/G
July 9, 2001
ENTRY DISCUSSING BURDEN OF PROOF ON CONSENT
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
A trial preparation conference was held on July 5, 2001. The parties appeared by counsel.
The status of the action and pending matters were discussed. Rulings were made on the record on various motions in limine and other pending matters. Trial preparation matters and trial procedures were discussed.
The defendants have objected to the plaintiff's proposed jury instructions concerning the burden of proof in this case. Plaintiff's proposed final jury instruction no. 7 states, in part, "[d]efendants bear the burden of proving by a preponderance of the evidence that the elements of one or both of these exceptions to the warrant requirement were met." Plaintiff's proposed final jury instruction no. 8 recites, in part, that "[d]efendants bear the burden of proving by a preponderance of the evidence that Plaintiffs consented to the searches and seizures." Plaintiffs rely on Llaguno v. Mingey, 763 F.2d 1560 (7th Cir. 1985) for this proposition. Defendants argue that in a civil rights action the plaintiff bears the burden of proof that consent was not voluntarily given, citing another Seventh Circuit case, Valance v. Wisel, 110 F.3d 1269, 1279 (7th Cir. 1997). For the reasons discussed below, the court must follow Valance and find that in this section 1983 action the ultimate burden of persuasion on the issue of whether consent was voluntarily given is on the plaintiff.
In Valance, the Seventh Circuit held that in a civil action under 42 U.S.C. § 1983, the plaintiff carries the ultimate burden of proof that a consent to search was involuntary. Id. at 1278-79. The court noted that pursuant to Rule 301 of the Federal Rules of Evidence, "[e]ven if a presumption of unreasonableness arises from the fact of a warrantless search, that does not serve in a civil case to shift `the burden of proof in the sense of the risk of nonpersuasion.'" Id. at 1279 (quoting Fed.R.Evid. 301).
The Valance court recognized that although in Tarter v. Raybuck, 742 F.2d 977, 980-81 (6th Cir. 1984), cert. denied, 470 U.S. 1051 (1985), the Sixth Circuit had concluded that defendants in a civil case must bear the burden of proving voluntary consent to a search, three other circuits had disagreed, assigning the plaintiff the traditional burden of proving each element of his claim in a civil action. Id. at 1278 (citing Ruggiero v. Krzeminski, 928 F.2d 558, 562-63 (2d Cir. 1991); Crowder v. Sinyard, 884 F.2d 804, 824-26 (5th Cir. 1989), cert. denied, 496 U.S. 924 (1990); and Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994)). Since Valance was issued, the Second Circuit has continued to follow its ruling in Ruggiero. Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998) ("A further important distinction is that the burden in the state [criminal] action was on the state to prove that an exception to the warrant requirement applied, whereas here [in section 1983 case] the burden is on Tierney [plaintiff] to establish that the search was unlawful. Ruggiero v. Krzeminski, 928 F.2d 558, 563 (2d Cir. 1991)"). See also Reid v. Hamby, No. 95-7142, 124 F.3d 217, 1997 WL 537909, at *2 (10th Cir. 1997) (unpublished) (section 1983 Fourth Amendment search of property, followed Valance's placement of the burden on plaintiff to prove that no consent to search was given); Hodges v. Rios, No. 99-C-4137, 2000 WL 1700172, at *5, n. 5 (N.D.Ill. 2000) (memorandum opinion) (citing Valance for proposition that in section 1983 Fourth Amendment case concerning search of home, defendants have burden of production but plaintiff must sustain burden of persuasion).
The Sixth Circuit Tarter decision involved the issue of whether a search of a student by school officials violated the student's Fourth Amendment rights. Tarter is not persuasive for purposes here because it was not resolved on the basis of consent, but rather on a balancing of the Fourth Amendment rights of students with the interests of school officials and the state in maintaining a proper educational environment. Tarter, 742 F.2d at 980-82 ("[W]e are not inclined to resolve this case on the basis of consent.").
Moreover, the Tarter court's reference to consent, which is reasonably characterized as dictum, is grounded on its view that consent constitutes a waiver of a constitutional right and that the defendant government must rebut the presumption against a waiver of those rights. Id. at 980. In Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973) (holding that whether a consent to a search was voluntary must be determined from the totality of the circumstances), the Supreme Court rejected a "knowing and intelligent waiver" approach to consent searches and stated that "[a]lmost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial." Id. at 237. "There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment." Id. at 241.
The Valance court did not mention its 1985 Llaguno decision, and in fact, in discussing which party bears the burden of proving that consent was voluntary, stated that "[t]his court has not directly addressed that question." Valance, 110 F.3d at 1278. It is true that the Llaguno court was not faced with the issue of consent, rather the issue was whether exigent circumstances made it reasonable for police officers to not obtain a search warrant before searching a house when looking for a fleeing suspected killer. Llaguno, 763 F.2d at 1564. The measure of whether the circumstances faced by officers on the scene constitute an exigency justifying an exception to the warrant requirement is vastly different than the standard by which the voluntariness of consent is tested. This distinction, along with the possibility that Llaguno's single statement, made without citation to authority, that "[t]he burden of proof should be placed on the police to establish the existence of an emergency that prevented them from obtaining a warrant," Llaguno, 763 F.2d at 1569, could be considered dictum, may explain any lack of discussion in Valance. In any event, the remark in Llaguno is not enough to persuade the court from the majority view that the burden of persuasion on the issue of consent in this case, like any civil action, remains with the plaintiff. See Fed.R.Evid. 301.
Plaintiff also directs the court to district court cases which support her view that the government bears the burden of proof that consent to a warrantless search was voluntary. See Lopkoff v. Slater, 898 F. Supp. 767, 775 (D. Col. 1995), aff'd on other grounds, 103 F.3d 144, 1996 WL 700060 (10th Cir. 1996) (unpublished), Nelson v. Alderman Allan Streeter, No. 88-C-5434, 1992 U.S. Dist. LEXIS 5443, at *53 (N.D.Ill. 1992), and Owusu v. Grzyb, 749 F. Supp. 897, 902 (N.D.Ill. 1990). Each of these decisions, however, rely on criminal cases, for which it is undisputed that the government has the burden of proof. See Amato v. City of Richmond, 875 F. Supp. 1124, 1134 (E.D.Va. 1994) (noting that authority from criminal cases is not controlling because the "issue of consent arises in a fundamentally different context in a civil action"), aff'd mem., 78 F.3d 578 (4th Cir. 1996), cert. denied, 519 U.S. 862 (1996).
Of course, Magistrate Judge Foster of this district did instruct a jury that it was the defendants' burden of proof to show consent to search in a Section 1983 suit. Reich v. Minnicus, 886 F. Supp. 674, 685-86 n. 11 (S.D.Ind. 1993). However, it is noted that this case was tried several years before the Valance decision, and Judge Foster discusses the Llaguno decision extensively in his entry containing the instruction. There is also no indication whether the parties disagreed about the burden of proof issue in the Reich case. Absent a dispute, Judge Foster may not have had a reason to consider whether the burden of proof more properly should have been placed on the plaintiff. Regardless, Judge Foster's use of the instruction placing the burden of proof of consent on the defendants in that case is not binding precedent and the lack of discussion about the burden of proof in that entry leaves it short on persuasiveness.
In sum, it is unquestionable that the defendants have the burden of production of evidence that the plaintiff consented to the entry into her home and to the subsequent search. Based on the matters presented during the summary judgment process and proffered by counsel at the pretrial conferences, it appears to be clear that the defendants will meet their burden of production of some evidence, although disputed, on that point. Nonetheless, the plaintiff bears the ultimate burden of persuasion that either consent was not given or was given under duress or coercion. The instructions the court gives to the jury will confirm that allocation of the burden of proof.
IT IS SO ORDERED.