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BRATTON v. TOBOZ

March 15, 1991

KAREN BRATTON, ET AL., PLAINTIFFS,
v.
STEVEN TOBOZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Muir, District Judge.

OPINION

I. INTRODUCTION

On September 6, 1990, the Plaintiffs filed an action pursuant to 42 U.S.C. § 1983 alleging that on October 16, 1987, Defendant Steven Toboz, a Pennsylvania State Trooper, and others conducted an illegal search of a house owned by Plaintiffs Francis and Vera Lowery and resided in by Plaintiff Bratton in violation of their Fourth Amendment rights. Plaintiffs seek an award of compensatory and punitive damages.

This case was tried by the Court sitting without a jury on March 4, 1991. The following are the Court's findings of fact, discussion, and conclusions of law.

II. FINDINGS OF FACT

1. Plaintiff Karen Bratton is a citizen of the United States who resides at P.O. Box 55, Westport, Pennsylvania, and who resided at that address at all times relevant to this action. (Undisputed, hereinafter "U")

2. Plaintiff Francis Lowery is a citizen of the United States who resides at 148 12th Street, Renovo, Pennsylvania, and who resided at that address at all times relevant to this action. (U)

3. Plaintiff Vera Lowery is a citizen of the United States who resides at 148 12th Street, Renovo, Pennsylvania, and who resided at that address at all times relevant to this action. (U)

4. Francis and Vera Lowery are husband and wife and were married at all times relevant to this action. (U)

5. Defendant Steven Toboz is a citizen of the United States who is employed as a Trooper by the Pennsylvania State Police, and who was so employed at all times relevant to this action. (U)

6. At all times relevant to this action, Trooper Toboz was assigned to the Pennsylvania State Police's Lock Haven Barracks as a criminal investigator. (U)

7. On or about October 10, 1984, there occurred a series of burglaries, arsons and other crimes at hunting camps on Beaverdam Run Road in Clinton County, Pennsylvania. (U)

8. Trooper Toboz was assigned to investigate those occurrences and on January 11, 1985 filed criminal charges against Michael Lowery and three other persons, Patrick Lowery, Timothy Philip Bratton and Dennis Daniel Curran charging them with the October 10, 1984 crimes. (U)

9. Michael Lowery and Patrick Lowery are sons of Francis and Vera Lowery. (U)

10. The same day arrest warrants were issued for all four of these individuals. (U)

11. The home address for Michael Lowery listed on those warrants was 148 12th Street, Renovo, Pennsylvania. (U)

12. Michael Lowery was not residing at that address at the time the warrants were issued in January, 1985 and has not resided at that address at any time since. (U)

13. Michael Lowery has never been apprehended since the issuance in January, 1985 of the warrants for his arrest, and remains a fugitive. (U)

14. Patrick Lowery also was a fugitive at the time warrants for his arrest were issued in January, 1985 and remained so until June 20, 1986 when he was apprehended by Trooper Toboz and other police personnel in Renovo, Pennsylvania. (U)

15. Francis and Vera Lowery jointly own a house and adjacent property in Westport, Pennsylvania, the address of which is P.O. Box 55, Westport, Pennsylvania. (U)

16. That property was previously owned by Francis Lowery's mother, the grandmother of Michael and Patrick Lowery. (U)

17. Beginning in 1986, Karen Bratton has rented the Westport house from Francis and Vera Lowery. (U)

18. Since the date warrants were issued for Michael Lowery, Trooper Toboz and other law enforcement personnel have been engaged in continuing efforts to apprehend him. (U)

19. Similarly, during the period of time during which Patrick Lowery was at large following the issuance of warrants for his arrest, i.e., from January, 1985, until June 20, 1986, Trooper Toboz and other law enforcement personnel engaged in continuing efforts to apprehend him. (U)

20. Since issuance of the arrest warrants for Michael Lowery, the Pennsylvania State Police have conducted numerous surveillances of the Westport house; not once during these surveillances was Michael Lowery observed. (U)

21. In May, 1985, Trooper Toboz and another state trooper went to the Westport house with the arrest warrants which had been issued for Patrick and Michael Lowery to inquire if they were present at that location. (U)

22. The door was answered on that occasion by Karen Bratton who told the troopers that she was present at the Westport house for the purpose of cleaning it. (U)

23. After Bratton informed them that neither Patrick nor Michael Lowery was there and the troopers cautioned Bratton about the possible consequences of harboring fugitives, they left. (U)

24. A short time later the same evening they drove back to the area of the Westport house and stationed themselves off the road in back of a nearby motel which afforded them a view of the house and proceeded to conduct surveillance of it. (U)

25. While the troopers were parked there, Francis Lowery came by and drove over to their car. (U)

26. He proceeded to tell the troopers that he did not want them on the Westport property without a search warrant. (U)

27. On the morning of September 23, 1985, the Pennsylvania State Police at Lock Haven received information that Michael Lowery had just been seen at the Westport house. (U)

28. After that information was relayed to Trooper Toboz and he confirmed it with the informant who supplied it, he proceeded to the office of District Justice Kevin R. Dwyer in Renovo, Pennsylvania, and applied for a search warrant to search the Westport house for Michael Lowery. (U)

29. District Justice Dwyer, however, declined to issue a search warrant, advising Trooper Toboz that it was unnecessary since an arrest warrant had been issued for Michael Lowery and that the arrest warrant and probable cause that Lowery was in the residence to be searched were all that was (sic) needed to conduct the search. (U)

30. Recalling what Francis Lowery had said to the troopers earlier in May, while they were surveilling the Westport house, Trooper Toboz wanted to be sure on this point and therefore proceeded to call Clinton County District Attorney Merritt E. McKnight for advice. (U)

31. Trooper Toboz recounted what had just happened with regard to his attempt to get a search warrant for the Westport residence and the reason the District Justice declined to issue it. (U)

32. Mr. McKnight informed Trooper Toboz that he believed the District Justice's action to be correct; that the arrest warrant for Michael Lowery, along with probable cause to believe he was in the Westport ...


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