United States District Court, D. Utah
AMENDED  MEMORANDUM DECISION AND
N. Parrish United States District Court Judge
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.
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).
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).
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).
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.
following recitation of facts adopts Plaintiffs' version
of events to the extent that their story finds support in the
The Taylorsville Residence
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
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.
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.
Investigation of Misty Italasano
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.”
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
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
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.
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.
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.
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.
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
Search Warrant Affidavit
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.”
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
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)
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
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.
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
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.”
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 to the UPD officers that they believed
the family was not involved in Italasano's criminal
in the wee hours of November 4, 2015, the UPD SWAT team used
an explosive charge on the basement entrance and a battering
ram on the front door. In short order, the SWAT team rounded
up, handcuffed, and detained Hemingway and her sons: Aaron,
Daniel, and Michael. They also handcuffed Italasano and
Charish Wakefield, a woman who had been staying ...