The opinion of the court was delivered by: RAMBO
Plaintiffs filed a complaint on August 23, 1979, alleging that defendants had violated their Fourth Amendment right to be free from unreasonable search and seizure. Defendants denied the allegations that their conduct constituted an unreasonable search and seizure in their answer, which was filed on September 12, 1979. Several depositions were taken and the case was scheduled for trial during the October 1980, trial term. On July 15, 1980, both plaintiffs and defendants filed a motion for summary judgment, supported by briefs that were filed on July 25, 1980. This memorandum will address these motions for summary judgment.
In support of their motion for summary judgment, plaintiffs advance the following as facts:
2. That the lockers in question, although assigned to plaintiffs by the State Capitol Police (hereinafter Police), contained personal items of the plaintiffs and each plaintiff had an expectation of privacy in their respective lockers.
3. That at the time of the search, there were no department regulations, had been no prior searches, and the Police had taken no other actions that would dispell or diminish plaintiffs' expectations of privacy.
4. That each plaintiff was assigned a separate locker and that each locker was secured with a lock.
5. That each plaintiff was issued a key to his locker and a master key was maintained by the Police, purportedly for limited entrance into the lockers.
6. That plaintiffs' consent was not obtained by defendants prior to the search of the lockers.
7. That subsequent to the search, a letter of apology was sent by the Police to each plaintiff in regard to the non-consensual search.
8. That no exigent circumstances existed that required a search of the lockers prior to obtaining consent of the plaintiffs or giving them notice.
Plaintiffs contend that the actions taken by Officer Glendening and Corporal Kipp at the direction of defendants constituted an unlawful search and seizure in violation of their Fourth Amendment rights, that plaintiffs' sworn affidavits work to eliminate any material question of fact and that as a matter of law, plaintiffs are entitled to judgment.
Defendants, although they do not contest the material facts, disagree with the conclusions drawn by plaintiffs. Defendants agree that a locker "check" was conducted on January 18, 1978, without a warrant and without the consent of the plaintiffs to whom the lockers were assigned. Defendants also agree that each plaintiff was assigned his own locker, equipped with lock and key, and that a letter of apology was sent subsequent to the search. Defendants do not agree, however, that plaintiffs had a reasonable expectation of privacy in their lockers and contend that even if they did, the locker check authorized by defendants did not infringe upon that expectation. In a second part of their brief in support of their motion for summary judgment, defendants contend that in any event, plaintiffs' action should be dismissed as it is barred by the Eleventh Amendment.
Since jurisdictional matters must be settled at the outset, and because "the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar," Edelman v. Jordan, 415 U.S. 651, 678, 94 S. Ct. 1347, 1363, 39 ...