James L. Parkey v. Jason E. Sample

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3966
JAMES L. PARKEY,
Plaintiff-Appellant,
v.
JASON E. SAMPLE,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:07-cv-00267—William C. Lee, Judge.
____________
ARGUED OCTOBER 1, 2010—DECIDED OCTOBER 27, 2010
____________
Before POSNER, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. James Parkey sued Indiana State
Trooper Jason Sample under 42 U.S.C. § 1983, claiming
Sample had violated Parkey’s rights under the Fourth
Amendment by searching Parkey’s home and seizing
Parkey’s property without probable cause. The district
court granted Sample’s motion for summary judgment,
finding Parkey had not brought forth any evidence to
demonstrate a lack of probable cause. We affirm.

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2 No. 09-3966
I. BACKGROUND
Sample had substantial training and experience in the
recognition of marijuana, as well as the methods and
materials used to cultivate it. He served as the Marijuana
Eradication Coordinator for the Lowell District of the
Indiana State Police. In March 2005, Sample learned from
the Drug Enforcement Agency (DEA) that a James Parkey
had received shipments from a company known for selling
supplies used for marijuana cultivation. The shipments
were delivered to Parkey’s home in Hammond, Indiana.
After receiving the DEA tip, Sample obtained Parkey’s
criminal history record.
In viewing Parkey’s residence, Sample observed that the
basement windows were covered, raising the likelihood
that a marijuana grow operation was being concealed.
Based on the information he had aggregated and his
experience, Sample had suspicion that criminal activity
was occurring in Parkey’s residence.
As a result, Sample conducted two separate examinations
of trash containers (“trash pulls”) in the alley behind
Parkey’s home. The first trash pull occurred on May 10,
2005, and the second on June 6, 2005. Both times he found
stems of marijuana plants, remnants of marijuana ciga-
rettes (five in the first pull and twenty in the second), and
discarded mail addressed to Parkey at his Hammond
residence. The stems field tested positive for marijuana.
Within hours of the June 6, 2005, trash pull, Sample
applied for a warrant in state court to search Parkey’s
home. In support of his application for a warrant, Sample
submitted an affidavit outlining the evidence for probable

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No. 09-3966 3
cause, including the DEA’s tip, the results of the trash
pulls, and a statement that Parkey had a criminal record in
Indiana. On the basis of that information, a Lake County
Superior Court magistrate issued a search warrant.
Later that same day, pursuant to the Lake County
Superior Court search warrant, Sample and other members
of the Indiana State Police conducted a search of Parkey’s
residence. They seized ten marijuana plants during the
search, and criminal drug charges were filed against
Parkey in Indiana state court. Subsequently, however, all
charges against him were dismissed.
After the criminal charges were dismissed, Parkey sued
Sample in federal district court both for violating his
Fourth Amendment rights against unreasonable search and
seizure by searching his residence without probable cause
and for libel. Parkey claims Sample provided false informa-
tion in his affidavit in support of the search warrant; he
also claims any remnant of truthful information included
in the affidavit does not support a finding of probable
cause. Parkey initially filed pro se, but he had obtained
counsel by the time Sample moved for summary judgment
and is still represented by counsel.
The district court granted summary judgment in favor of
Sample on the § 1983 claim, holding Parkey had provided
insufficient evidence to create a genuine issue of material
fact as to the existence of probable cause to search his
home. The court also granted summary judgment in favor
of Sample on the libel claim. Parkey appeals only the § 1983
decision.

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4 No. 09-3966
II. ANALYSIS
We review a grant of summary judgment de novo.
Suarez v. Town of Ogden Dunes, Ind., 581 F.3d 591, 595 (7th
Cir. 2009). Summary judgment is appropriate when the
record shows that “there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c). Though we construe
all facts and make all reasonable inferences in the non-
moving party’s favor, Suarez, 581 F.3d at 595, the moving
party may succeed by showing an absence of evidence to
support the non-moving party’s claims. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986).
To succeed on his claim, Parkey must provide evidence
to rebut the presumption of validity attached to an affida-
vit in support of a search warrant. Suarez, 581 F.3d at
596-98. Parkey claims Sample misled the magistrate by
alleging in his affidavit that the marijuana Sample found
in the trash pull was Parkey’s, calling Parkey a suspected
narcotics dealer, and implying Parkey had an extensive
criminal history.
To avoid summary judgment, Parkey must submit
evidence indicating Sample “knowingly or intentionally
or with a reckless disregard for the truth” made mis-
statements to the magistrate and show the statements
were necessary to the magistrate’s probable cause deter-
mination. Molina ex rel. Molina v. Cooper, 325 F.3d 963,
968 (7th Cir. 2003). Parkey meets neither requirement.
Rather than present evidence of the falsity of Sample’s
statements, Parkey tries to shift the burden of production
onto Sample.

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No. 09-3966 5
Parkey argues he did not need to dispute ownership of
the marijuana plant remnants and marijuana cigarettes
Sample found in the trash because they were never shown
to be Parkey’s. But the law is clear: for a successful sum-
mary judgment motion, Sample need only show an absence
of evidence to support Parkey’s claims. Celotex, 477 U.S.
at 325; Knight v. Wiseman, 590 F.3d 458, 463-65 (7th Cir.
2009). The absence of such evidence is apparent. Parkey
also notes Sample has not provided documentation to
support his affidavit statement that he researched Parkey’s
criminal history (though Parkey does concede he
was arrested in Indiana in 1981). Again, merely pointing to
Sample’s alleged lack of evidence is insufficient to defeat
summary judgment.
Even if Parkey were able to show that Sample deliber-
ately misled the magistrate regarding Parkey’s criminal
history, Parkey’s claim would fail because he has not
shown that any misstatement could have affected the
magistrate’s decision to issue a search warrant. In fact,
Parkey does not even argue that any reference to his
criminal history was necessary for the issuance of a search
warrant. In any event, the criminal history information is
not necessary to validate the magistrate’s issuance of the
search warrant.
Sample’s affidavit included information about his
training and experience. It also included assertions that he
received a tip from the DEA that Parkey had received
shipments from a supplier of marijuana cultivation prod-
ucts and assertions that Sample found remnants of mari-
juana cigarettes and plant stems that field tested positive

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6 No. 09-3966
for marijuana in Parkey’s trash, together with discarded
mail addressed to Parkey. Parkey does not contest these
assertions, and these assertions alone are sufficient to
establish probable cause. See Molina, 325 F.3d at 968-71
(holding that informant testimony and items that field
tested positive for cocaine were sufficient to establish
probable cause, even though other (unreliable) testimony
cited in support of the warrant was “totally disregarded”).
Because the record shows no issue of material fact
regarding the existence of probable cause, we do not
consider whether Sample would be entitled to qualified
immunity.
III. CONCLUSION
The summary judgment order granted by the district
court is hereby AFFIRMED.
10-27-10

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