Pair in Mistaken Pot Bust Lose Bid to Pursue Claim

     CHICAGO (CN) – The 7th Circuit killed a civil suit that claimed two Chicago police officers violated the Constitution when they accidentally mistook hay bales found in a man’s pickup truck for marijuana, leading to his incarceration for twenty-four days, ending a dispute over whether a new trial should be granted.
     On December 30th, 2002, Chicago Police Department Officer Alan Lucas allegedly received an anonymous tip on the telephone saying that two men would be transporting approximately 200 pounds of marijuana in a black pickup truck between 4 p.m. and 6 p.m. The tip indicated that the truck would be traveling south on Pulaski Avenue towards the northwest of Chicago.
     Lucas informed the evening’s watch commander, Lieutenant Joseph Porebski about the tip and planned to follow up with his squad car partner, Thomas Norberg.
     Around 5:30 p.m., the officers stopped a truck matching the tip’s description, containing Manuel Galvan and Juan Luna. The truck had committed a traffic offense by failing to use his turn signals when changing lanes.
     As the officers approached from opposite sides of the car, they noted a small bag that looked like it was full of marijuana fly through the air. Both officers testified that the bag was kicked across the floor, but the case report differed from their in-court testimony as to which side of the car it was kicked.
     Lucas and Norberg removed the men from the truck and conducted a search of the vehicle. In the truck bed, the officers found two bales of plant material wrapped in plastic that were partially ripped open. After burning and smelling a sample of the plant material, the officers determined that it was marijuana, despite Galvan’s claim that it was hay recently used in a church nativity scene.
     The officers arrested Galvan and Luna for being in possession of $661,000 of marijuana. Back at the station, other officers were unsure whether or not the bales were, in fact, marijuana. After consulting a drug reference book and smelling an unlit sample, however, Lieutenant Porebski determined that they were marijuana and charged Galvan with possession of 100,000 grams.
     Galvan could not make bail and remained in prison while the bales were sent to the Illinois State Police Crime Laboratory to be tested. The lab determined that they were not marijuana and two days later faxed Norberg the results. Norberg claimed he never received the fax.
     On January 21, the Office of the State’s Attorney finally received the test results and filed a writ to bring Galvan from jail and dismiss the criminal charges against him. Galvan was released two days later.
     Galvan filed suit against Norberg and Lucas, bringing a host of claims including false arrest and imprisonment, malicious prosecution, and intentional infliction of emotional distress. The case went to trial and a jury returned a verdict in favor of the officers.
     But U.S. District Judge Milton Shadur granted Galvan’s motion for a new trial, ruling that the manifest weight of the evidence could not support the jury verdict.
     “I almost without exception rely on the ability of jurors to get things right. I am sorry to say that what I saw and heard in this case represented the most distressing falsehoods coming from the mouths of some members of the Chicago Police Department, a force for which I have always had respect and have always sought to credit, because I believe so strongly in law enforcement,” Shadur said, explaining his decision.
     “To say that crediting such a patently bogus after the fact horror story is contrary to the manifest weight of evidence is frankly a major understatement. It’s sad to say that. But Lucas I think demonstrated himself to have no respect for the truth.”
     Shadur then recused himself. The case was reassigned to Judge Edmund Chang who reinstated the jury verdict.
     Chang determined that Judge Shadur’s ruling was based on his “common-sense notion that the tip was too good to be true” rather than on “actual evidence, let alone a manifest weight of evidence, that required a jury to reject the testimony that Lucas had received the tip.”
     Chang pointed out that the reference to the tip in the case report meant that Lucas would have had to start laying the foundation for the cover-up before the lab report revealing that the bales were not marijuana was returned.
     The 7th Circuit affirmed Chang’s ruling, also affirming his discretion to review Shadur’s order granting a new trial.
     “Judge Chang did not abuse his discretion by deferring to the jury’s credibility determinations. The jury weighed the evidence, including the conflicting testimony, and arrived at a verdict that is supported by the evidence – or at least a verdict that is not against the manifest weight of the evidence,” the court wrote.
     The two small bags which Lucas and Norberg had seen thrown to the floor of the truck were determined to be marijuana, the ruling said. Galvan and Luna were not charged in connection with that offense.

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