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Hemingway v. Russo

United States District Court, D. Utah

June 22, 2018

TRUDY HEMINGWAY, et al., Plaintiffs,
v.
E. ROBERT RUSSO, et al., Defendants.

          MEMORANDUM DECISION AND ORDER

          JILL N. PARRISH, UNITED STATES DISTRICT COURT JUDGE

         Before the court are cross-motions for summary judgment. The first (ECF No. 43) was filed on December 15, 2017 by defendants Bradley Bailey, Daniel Bartlett, Cottonwood Heights City, Christopher McHugh, Daniel Morzelewski, Robert Russo, and Kevin Wyatt (collectively, “Defendants”). The second (ECF No. 44) was filed on the same day by plaintiffs Aaron Christensen, Trudy Hemingway, Daniel McGuire, and Michael McGuire (collectively, “Plaintiffs”). For the reasons below, Defendants' motion is granted in part and denied in part, and Plaintiffs' motion is denied.

         I. LEGAL STANDARD

         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine only if “a reasonable jury could find in favor of the nonmoving party on the issue.” Macon v. United Parcel Serv., Inc., 743 F.3d 708, 712 (10th Cir. 2014). “In making this determination, ” the court must “view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Id. (citation omitted).

         “When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). This burden is a heavy one. See Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995). And qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

         In qualified immunity cases, the requirement that the court view the evidence and draw inferences in the light most favorable to the nonmoving party “usually means adopting . . . the plaintiff's version of the facts.” Scott v. Harris, 550 U.S. 372, 378 (2007). However, “a plaintiff's version of the facts must find support in the record.” Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009).

         When both parties move for summary judgment, the court must analyze each motion individually and on its own merits. See Buell Cabinet Co., Inc. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). Consequently, the court considers Defendants' motion under the qualified immunity analysis before turning to Plaintiffs' motion.

         II. FACTS

         The following recitation of facts adopts Plaintiffs' version of events to the extent that their story finds support in the record.

         A. The Taylorsville Residence

         Trudy Hemingway owns a home in Taylorsville, Utah (the “Taylorsville Residence”). In 2015, the Taylorsville Residence was listed on Salt Lake County records as a single-family residence. It had one mailbox, one street address, and one set of utilities. The City of Taylorsville had no record of there being separate apartments in the home. And Hemingway had not obtained a building permit to convert part of the home into apartments, nor had she informed anyone with the City of Taylorsville about any apartments at her home.

         Nevertheless, in late 2015, the home was, in fact, home to more than one family. Ms. Hemingway and her adult sons Aaron Christensen and Michael McGuire lived on the main level. Hemingway's adult son Daniel McGuire lived in a portion of the basement. And a woman named Misty Italasano rented another portion of the basement from Hemingway.

         Italasano's basement residence was separated from the rest of the Taylorsville Residence by a door, in front of which Italasano had placed several items of furniture. That door remained closed and locked by a double-sided deadbolt that required a key to be unlocked from either side. Hemingway had the only key. The only other entrance to Italasano's residence was an exterior basement door opening to a set of stairs on the side of the house.

         B. Investigation of Misty Italasano

         In October 2015, a confidential informant told Detective Christopher McHugh of the Cottonwood Police Department that Italasano was selling methamphetamine out of the Taylorsville Residence. The informant told McHugh that Italasano lived in the basement of the home, and the informant described the basement as containing “a small kitchen on the left, a bedroom on the right, and then multiple doors . . . in the backside of the basement.”

         The informant also told McHugh that James Andrew Carter and Greg Magalogo were associated with Italasano. Carter was a convicted felon and a federal fugitive with an outstanding national warrant for his arrest on a weapons charge. Magalogo was also a convicted felon with a history of assault involving firearms.

         For approximately one month, McHugh conducted surveillance on the Taylorsville Residence. During that time, McHugh surveilled the home almost daily on weekdays- sometimes for a few minutes, sometimes for a few hours. In the course of his surveillance, McHugh recorded and investigated as many license plates as possible from vehicles parked at the residence or nearby. He discovered that some of the vehicles belonged to Hemingway and her sons. And, working with the Unified Police Department (“UPD”), McHugh determined that Hemingway owned the home and that police had been called there for minor complaints in the past.[1]

         While surveilling the Taylorsville Residence, McHugh observed Italasano, Magalogo, and Carter coming and going. Once, somewhere in the middle of his month of surveillance, McHugh watched Italasano enter the front door and then exit about ten minutes later. But on all other occasions, Italasano and those accompanying her entered by walking through the side gate on the left side of the house, down the steps, and into the basement where she lived.

         Beyond Italasano, McHugh knew there were other residents in the building, including at least Hemingway and Michael McGuire. McHugh also observed younger men who were not suspected in drug activity coming and going through the front entrance. He did not observe any of these individuals use the basement door that Italasano used.

         On two occasions, McHugh used his confidential informant to conduct controlled drug purchases at the Taylorsville Residence. On the first buy, the informant entered the building by walking through the side gate, down the steps, and then through the basement door. On the second buy, the informant parked in front of the residence. McHugh observed Italasano come up the stairs, exit through the side gate, and approach the car.

         Throughout McHugh's surveillance, he observed what he calls “short-stay traffic.” People would approach the home, go through the side gate, down the stairs, and into the basement. They would stay “for two to three minutes, usually less than five minutes, ” and then exit, walk up the stairs, go back through the side gate, re-enter their vehicle, and leave.

         In short, while several factors suggested to McHugh that the building was a single-family residence, there were other significant indicia that the building was a multifamily residence and that Italasano was actually living in a basement apartment.

         C. Search Warrant Affidavit

         On October 30, 2015, McHugh submitted an affidavit for a warrant to search the Taylorsville Residence. In the affidavit, McHugh characterized the Taylorsville Residence as “a single family residence.” He described people entering the residence for short periods of time and then exiting. He also described instances where vehicles would approach the residence and Italasano would exit and make contact with the vehicles' drivers. McHugh's affidavit indicated that he was “able to gather license plate information [from] the vehicles coming and going from the residence[, ] and they were connected to people with narcotics history.” McHugh's affidavit identified Magalogo, indicated he was staying with Italasano at the Taylorsville Residence, and described him as “a known gang enforcer for a Polynesian gang” with “multiple convictions for aggravated assault and felon in possession of a dangerous weapon.” The affidavit recounted the controlled buys and then requested a search warrant for the “suspected place, ” which included “the entire premise and curtilage at that location.”

         McHugh's affidavit is notable for what it did not include. It omitted entirely any indication that Hemingway and her sons lived at the Taylorsville Residence. It also omitted any indication that Italasano's basement residence was a separate unit. Specifically, the affidavit omitted the following information known to McHugh:

1. Trudy Hemingway owned the Taylorsville Residence.
2. Hemingway lived in the Taylorsville Residence.
3. Hemingway's adult son Michael McGuire also lived in the Taylorsville Residence.
4. The building had two apparent and well-used entrances: one in the front, and one through a side gate and down a set of concrete stairs.
5. Italasano was living in the basement. McHugh observed her entering via the front door on only one occasion, and she exited again after ten minutes. Otherwise, Italasano used the basement door exclusively.
6. Magalogo was living in the basement. McHugh never observed him entering or exiting via the front door.
7. The basement where Italasano and Magalogo lived included a kitchen and a bedroom.
8. McHugh conducted surveillance for nearly a month.
9. During his surveillance, McHugh saw individuals he did not suspect of drug-related activity coming and going through the front door. McHugh did not observe the same individuals using the basement door.
10. Several of the vehicles parked near the residence were registered to Hemingway and her sons.
11. McHugh did not suspect Hemingway or her sons of involvement in Italasano's criminal activity.
12. All short-stay traffic related to suspected criminal activity was to the basement-not the main floor.
13. When Italasano would leave the Taylorsville Residence to conduct suspected drug transactions in front of the Taylorsville Residence, she would exit from (and return to) the basement.

         In short, McHugh's affidavit did not include any information that would have suggested that anyone other than Italasano and Magalogo lived at the Taylorsville Residence. One incomplete sentence in the affidavit, if completed, might have indicated that Italasano was just one of several residents or that she lived in a separate unit: Describing the first controlled buy, McHugh declared, “The CI [Confidential Informant] proceeded to the location where the CI entered the target location through the south side door leading.” McHugh watched his informant walk through the side gate, down a set of stairs, and into the basement. But his affidavit inexplicably and jarringly omitted where, exactly, the south side door led. It led to Italasano's basement home-a fact McHugh knew when he drafted the affidavit.

         After McHugh prepared his affidavit, he delivered it to then-Sergeant Daniel Bartlett, who reviewed it. Bartlett and McHugh discussed the nature of the residence and the possibility of separate living spaces. Bartlett learned from McHugh that Italasano rented a portion of the basement and that Hemingway and her sons lived elsewhere in the home. He learned that, with one exception, Italasano had been seen going in through the side gate and to the basement. He learned that Hemingway and her sons were not suspected in the criminal activity McHugh was investigating.

         Despite their discussion regarding other residents and separate living spaces, Bartlett suggested no changes to McHugh's affidavit. Instead, the affidavit was passed along to a district attorney absent any reference to other residents at the address or any indication of separate living spaces. The district attorney also suggested no revisions to the affidavit.

         On October 30, 2015-the same day McHugh submitted the affidavit-Justice Court Judge Jeanne M. Robison issued a search warrant. That warrant commanded officers to search, day or night, without knocking, “the premises known as 4796 S 3475 W, Taylorsville, Utah, 84129.” The warrant described the premises as “a single family residence, with tan vinyl siding, a rock facia [sic], and brown shingle roof.” And it explained that “[t]he suspected place also includes the entire premises and curtilage at that location, including all outbuildings, sheds, and vehicles found to be under the control of [Italasano] in which evidence sought under this warrant could be hidden.”

         D. The Search

         Before executing the search warrant, McHugh and Bartlett briefed UPD officers. McHugh described his investigation and related the information contained in the warrant. He identified Italasano, Magalogo, and Carter as “suspects, ” and Hemingway and Michael McGuire as “subjects.” McHugh and Bartlett discussed the presence of Hemingway and her sons, explaining ...


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