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United States District Court, W.D. Pennsylvania
October 29, 2014
TRAVIS LASKO, Plaintiff,v.LEECHBURG POLICE DEPARTMENT; OFFICER JAROD BENNIS; MICHAEL DIEBOLD; THE BOROUGH OF LEECHBURG; AND THE DISTRICT ATTORNEY'S OFFICE OF ARMSTRONG COUNTY, Defendants
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[Copyrighted Material Omitted]
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For TRAVIS LASKO, Plaintiff: Monte J. Rabner, LEAD ATTORNEY, Pittsburgh, PA.
For LEECHBURG POLICE DEPARTMENT, OFFICER JAROD BENNIS, MICHAEL DIEBOLD, THE BOROUGH OF LEECHBURG, Defendants: Mark R. Hamilton, LEAD ATTORNEY, Cipriani & Werner, P.C., Pittsburgh, PA.
For THE DISTRICT ATTORNEY'S OFFICE OF ARMSTRONG COUNTY, Defendant: Scott G. Dunlop, LEAD ATTORNEY, Marshall, Dennehey, Warner, Coleman & Goggin, Pittsburgh, PA.
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Mark R. Hornak, United States District Judge
In this civil rights action filed under 42 U.S.C. § 1983, the Plaintiff, Travis Lasko, alleges that the two remaining Defendants, Police Chief Michael Diebold (" Diebold" ) and the Borough of Leechburg (the " Borough" ), violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution when they arrested him, searched his home, and prosecuted him for possession of narcotics and a firearm. At the center of the dispute are two questions: (1) whether the Plaintiff's federal constitutional rights were violated; and (2) if so, whether Diebold and the Borough can be held liable for that violation.[1]
Pending before the Court is Defendants' Motion for Summary Judgment, ECF No. 50, in which the remaining Defendants seek judgment in their favor on the remaining claims. The Court has carefully considered Defendants' Motion; Defendants' Brief in Support, ECF No. 51; Defendants' Concise Statement of Material Facts, ECF No. 52; Plaintiff's Response ECF No. 55; Plaintiff's Concise Statement of Material Facts, ECF No. 56; Plaintiff's Brief in Opposition, ECF No. 57; Defendants' Reply Brief, ECF No. 58; Defendants' Response to Plaintiff's Concise Statement of Material Facts; and all relevant supporting Exhibits. For the reasons that follow, Defendants' Motion is granted.[2]
Because the facts were laid out in detail in the Court's earlier Memorandum Opinion denying in part and granting in part Defendants' Motion to Dismiss, Lasko v. Leechburg Police Dep't, No. 12-1421, 2013 WL 2404145 (W.D. Pa. May 31, 2013), only a partial recitation of the factual background is provided here.
On September 8, 2006, Officer Bennis of the Leechburg Police Department was on patrol and received a call about a domestic disturbance. Officer Bennis responded to the call around 1:00 o'clock in the morning. ECF No. 56-4, at 8. He spoke with Sue Ward, the Plaintiff's then-girlfriend, and Stefan Houser, Sue Ward's son. At that initial meeting, Ward first told Officer Bennis that Plaintiff had threatened Houser with a knife and then, during the same conversation, that Plaintiff had threatened Houser with a gun. ECF No. 56-5, at 6. Initially, Ward told Bennis that she did not want to press charges, but later, at about 6:00 o'clock that morning (roughly five hours later), Ward and Houser came to the police station and said that they had changed their minds. ECF No. 56-4, at 8-9. Officer Bennis had them fill out written statements. In her written statement, Ward related the version of the events in which Plaintiff had threatened Houser with a gun. ECF No. 56-4, at 17. Relying on Ward's written statement (but omitting her previous oral statement about the knife), Bennis wrote the following in his Affidavit of Probable Cause for a Search Warrant:
At this time Lasko went back into the house and came back outside holding a small, white and black hand gun. Lasko then pointed the gun at Houser and said
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he was going to " shoot him." Houser and Ward left and returned to their home at 216 Main St. in Leechburg . . . . Examination of Laskos [sic] criminal history indicates that he is a convicted felon and is not permitted to possess a firearm.
ECF No. 56-1, at 2.
Chief Diebold came in for his shift later that morning, and he and Bennis filed charges against the Plaintiff. ECF No. 56-4, at 6. They obtained an arrest warrant[3] for the Plaintiff and a search warrant for " A small black and white hand gun of unknown caliber." ECF 56-1, at 1. That same morning, Diebold and Bennis went to Plaintiff's house and arrested him. ECF No. 56-4, at 6. Following the arrest, officers from the Department went to the second floor of the house where they spotted a potted marijuana plant in plain view. ECF No. 56-5, at 3. The officers then obtained a second search warrant to search for the presence of drugs in the house. During the second search, the officers found the black and white handgun, along with marijuana, cocaine, and drug paraphernalia. ECF No. 56-5, at 3. Plaintiff was charged with possession of a controlled substance, possession with the intent to manufacturer or deliver a controlled substance, possession of marijuana, possession of drug paraphernalia, and possession of a firearm. ECF No. 56-5, at 2.
At Plaintiff's preliminary hearing on December 13, 2006, Ward changed her story about Plaintiff's threats against Houser. ECF 56-4, at 16. This time, Ward said that because it had been dark outside, she and Houser had mistakenly thought the Plaintiff was holding a handgun when he had actually been holding a cell phone. ECF 56-2, at 4. On December 18, 2006, Bennis filed a criminal complaint against Ward for making false reports to law enforcement. ECF No. 56-2. In the affidavit of probable cause against Ward in support of that criminal complaint, Bennis stated that Ward first reported that Plaintiff had a knife, and then reported that Plaintiff had a gun, not a knife. ECF No. 56-2. The affidavit also stated that Ward and her son were initially uncooperative and unwilling to provide a written statement. ECF No. 56-2.
The subsequent procedural history is complex but not directly pertinent here.[4] Ultimately, in relation to a retrial on the criminal charges brought against him, Plaintiff filed a suppression motion and the state trial court held argument on that motion on July 22, 2011. ECF No. 56-4. As this Court's previous opinion explained:
Plaintiff filed a suppression motion and the trial court held argument on the motion on July 22, 2011. [ECF No. 56-5]. On October 27, 2011, the trial court held that, based on the case of Commonwealth v. Antoszyk, [2009 PA Super 232, 985 A.2d 975 (2009), aff'd by an equally divided court, 614 Pa. 539, 38 A.3d 816 (2012)], in which material misstatements rendered a search warrant invalid, there was a lack of independent probable cause for the first search warrant and arrest warrant due to Ward's misstatements regarding the alleged gun. [ECF No. 56-5]. Consequently, the court held that the second search warrant was the fruit of a poisonous
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tree. The trial court also held that the police search incident to Plaintiff's arrest, which led to the discovery of the marijuana on the second floor, was overly broad. Id. Thus, the trial court held that the evidence found pursuant to the second warrant was not discovered by means sufficiently distinguishable to purge that evidence of the primary taint of the first warrant. Id.
Lasko, 2013 WL 2404145, at *3.
Because this § 1983 action has its origins in the Pennsylvania state court's suppression order, a few words about that court's reasoning are in order. The state court relied strictly on Pennsylvania law in determining that the first search warrant was invalid and that the evidence was therefore suppressible. ECF 56-5, at 7. As the trial court explained, " [t]he Pennsylvania Superior Court recently held that under Article I, Section 8 of the Pennsylvania Constitution, material misstatements made deliberately or knowingly in an affidavit of probable cause will render a search warrant invalid unless there is an independent basis for a finding of probable cause." ECF No. 56-5, at 7 (citing Antoszyk, 2009 PA Super 232, 985 A.2d 975). The trial court relied on Antoszyk as supporting the proposition that, if a confidential informant's material misstatements are the sole basis for a finding of probable cause, then the search warrant is invalid, even if the fact that they were misstatements only comes to light after the warrant has issued. See ECF No. 56-5, at 8-9. Thus, the trial court reasoned that if Ward's misstatements regarding the handgun were removed from the affidavit of probable cause--if the affidavit instead reflected Ward's final story that Plaintiff was merely holding a cell phone--then probable cause disappeared. ECF No. 56-5, at 9. On this basis, the trial court suppressed the evidence. After that, the Armstrong County D.A.'s Office filed an interlocutory appeal of the suppression order. On September 7, 2012, the Pennsylvania Superior Court issued an order affirming the October 27, 2011 suppression order.
Plaintiff then brought this § 1983 action against five parties: Officer Bennis, the Leechburg Police Department, the District Attorney's Office of Armstrong County, Police Chief Michael Diebold, and the Borough of Leechburg. In its previous Memorandum Opinion in this case, the Court dismissed the claims against three of the five Defendants (Officer Bennis, the Leechburg Police Department, and the District Attorney's Office of Armstrong County), leaving only Police Chief Michael Diebold and the Borough of Leechburg as Defendants. ECF No. 31. The surviving claims against those two Defendants are for violations of the Plaintiff's Fourth and Fourteenth Amendment rights. The basis of those claims is that the remaining Defendants failed to train and supervise Officer Bennis, which resulted in the alleged violation of Plaintiff's federal constitutional rights. On August 14, 2014, the Defendants moved for Summary Judgment. ECF No. 50.
Summary judgment is proper " if 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). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " In considering a motion for summary judgment, a court must draw all reasonable inferences from the underlying facts in the light most favorable to the non-moving party." Emerson Radio Corp. v. Orion Sales, Inc., 253 F.3d 159, 162 (3d Cir. 2001). " When there
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is a disagreement about the facts or the proper inferences to be drawn from them, a trial is required to resolve the conflicting versions of the parties." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (alteration and internal quotation marks omitted). " To defeat a motion for summary judgment, the nonmoving party must raise more than some metaphysical doubt as to the material facts, and the court must determine that a fair-minded jury could return a verdict for the nonmoving party on the evidence presented." Doe v. Luzerne Cnty., 660 F.3d 169, 175 (3d Cir. 2011) (internal citations, alterations, and quotation marks omitted).
A. Municipal Liability
Section 1983 does not create substantive rights but " provides a federal cause of action for the violation of a federal right." Dique v. New Jersey State Police, 603 F.3d 181, 189 (3d Cir. 2010). " To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Harvey v. Plains Twp. Police Dep't, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). A plaintiff may bring a § 1983 action against a municipality for failure of the municipality to train its employees but " only where that failure amounts to 'deliberate indifference to the constitutional rights of persons with whom the police come in contact.'" Doe v. Luzerne Cnty., 660 F.3d 169, 179-80 (3d Cir. 2011) (quoting City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)) (alterations omitted). " In other words, a municipality can only be liable under § 1983 where the failure to train demonstrates a 'deliberate' or 'conscious' choice by the municipality." Id. (quoting Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 324 (3d Cir. 2005)). For a municipality's failure to train to be a deliberate or conscious choice, the plaintiff must demonstrate that " (1) municipal policymakers know that employees will confront a particular situation; (2) the situation involves a difficult choice or a history of employees mishandling; and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights." Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999). " Moreover, for liability to attach in this circumstance the identified deficiency in a city's training program must be closely related to the ultimate injury." City of Canton, 489 U.S. at 391.
A condition precedent to municipal liability is that the plaintiff actually allege a federal constitutional violation. After all, to state a claim under § 1983, a plaintiff " must establish that a state actor engaged in conduct that deprived him of 'rights, privileges, or immunities' secured by the constitution or laws of the United States." Wilson v. Russo, 212 F.3d 781, 786 (3d Cir. 2000). In this case, the alleged underlying constitutional violation is stated in Plaintiff's Brief in Opposition to the Motion for Summary Judgment:
In this case, Plaintiff alleges that Defendants violated his rights under the Fourth and Fourteenth Amendments as his initial arrest[5] was not based upon
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probable cause nor were the search warrants issued and upon which the charges against the Plaintiff rested were not based upon probable cause but rather arose as a result of police misconduct arising from the lack of adequate supervision and training of Officer Bennis which resulted in the unjust conviction and incarceration of the Plaintiff.
ECF No. 57, at 8. In other words, even though the claims against Officer Bennis were dismissed on qualified immunity grounds, his alleged violation of the Plaintiff's Fourth and Fourteenth Amendment rights proceeded out of a failure to train on the part of Chief Diebold and the Borough of Leechburg, or so says the Plaintiff. Plaintiff points to Gilles v. Davis, 427 F.3d 197, 207 n.7 (3d Cir. 2005). for the proposition that " [a] supervising authority may be liable under § 1983 for failing to train police officers when the failure to train demonstrates deliberate indifference to the constitutional rights of those with whom the officers may come into contact. . . ."
If no violation of the Plaintiff's federal constitutional rights occurred, however, then Plaintiff has no claim actionable under 42 U.S.C. § 1983. See Morrison v. Schultz, 270 F.App'x 111, 119 n.7 (3d Cir. 2008) (finding that because the plaintiff " did not suffer any constitutional deprivation, there is no need to address whether" the Magistrate Judge " erred in dismissing his municipal liability claim" ). The factual fulcrum of the case is therefore whether Officer Bennis violated Plaintiff's Fourth and Fourteenth Amendment rights at all.
Contrary to Plaintiff's averments, it is not at all self-evident that Plaintiff suffered any constitutional deprivation. While it is true that, as a result of the state court suppression hearing, the Pennsylvania trial court found that the involved search warrants violated the Pennsylvania Constitution, ECF No. 56-5, at 8-9, that decision does not mean that those same search warrants violated the United States Constitution. To the contrary, Pennsylvania sets a higher bar for the validity of search warrants. In Commonwealth v. Antoszyk, the Superior Court made it clear that it was relying on Article I, Section 8 of the Pennsylvania Constitution and was not " limited by the federal caselaw interpreting the United States Constitution." 2009 PA Super 232, 985 A.2d 975, 982 (Pa. S.Ct. 2009), aff'd by an equally divided court, 614 Pa. 539, 38 A.3d 816 (2012). The Antoszyk court ultimately held that a search warrant violates the Pennsylvania Constitution if the affidavit for probable cause contains material misstatements by a confidential informant even though " the affidavit accurately reflect[s] what [the informant] told the detective." Id. at 984.
The standard used by Pennsylvania courts to determine whether a search warrant has violated the Pennsylvania Constitution is irrelevant here. To carry on, the Plaintiff must demonstrate that his rights under the Fourth and Fourteenth Amendments of the United States Constitution were violated. As for the federal standard, the Supreme Court explained in Franks v. Delaware, " [t]he deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the
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affiant, not of any nongovernmental informant." 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).[6] This Court must therefore decide whether the Plaintiff's federal constitutional rights were violated by the procurement of the warrants.
B. The Fourth Amendment
The Third Circuit has explained that " [a] section 1983 plaintiff who challenges the validity of a search warrant by asserting that law enforcement agents submitted a false affidavit to the issuing judicial officer must satisfy the two-part test developed by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)." Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997). Under the Franks test, as explained in Mulvihill, " the plaintiff must prove, by a preponderance of the evidence, (1) that the affiant knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant; and (2) that such statements or omissions are material, or necessary, to the finding of probable cause." Id [7]
i. Step One: False Statement or Omission
The first step of the test requires the Court to determine whether the original Affidavit contains recklessly false statements or omissions. The Third Circuit explained the standards for false assertions or omissions:
Assertions are made with reckless disregard when, " viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported." [ Wilson, 212 F.3d] at 788 (internal quotations omitted). Assertions can be made with reckless disregard for the truth " even if they involve minor details--recklessness is measured not by the relevance of the information, but the demonstration of willingness to affirmatively distort truth." Id. " [O]missions are made with reckless disregard for the truth when an officer recklessly omits facts that any reasonable person would know that a judge would want to know" in making a probable cause determination. Id. at 783.
Reedy v. Evanson, 615 F.3d 197, 213 (3d Cir. 2010). The case before the Court deals strictly with an omission. The Third Circuit has acknowledged that because " [a]ll storytelling involves an element of selectivity . . . [w]e cannot demand that police officers relate the entire history of events leading up to a warrant application with every potentially evocative detail . . . ."
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Wilson v. Russo, 212 F.3d 781, 787-88 (3d Cir. 2000). " Rather, a court employs the 'common sense approach' of only looking to the omissions that are 'highly relevant.'" McGriff v. Marks, No. 12-63, 2013 WL 1830948, at *10 (W.D. Pa. Apr. 30, 2013) (quoting Wilson, 212 F.3d at 788). However, " one of the reasons for requiring a neutral magistrate to evaluate probable cause is that an uninterested party is presumably better suited to review and evaluate the facts than an officer pursuing a lead." Wilson, 212 F.3d at 787. For that reason " a police officer cannot make unilateral decisions about the materiality of information, or, after satisfying him or herself that probable cause exists, merely inform the magistrate or judge of inculpatory evidence." Id. A court should find that " omissions are made with reckless disregard if an officer withholds a fact in his ken that any reasonable person would have known that this was the kind of thing the judge would wish to know." Id. at 788 (alterations and internal quotation marks omitted). Furthermore, in making this determination, the court should view the facts not " from the deliberately slanted perspective that summary judgment demands" but rather " with scrupulous neutrality." Reedy, 615 F.3d at 232 n.24 (3d Cir. 2010).
So what kinds of omissions qualify? In Wilson v. Russo, the Third Circuit addressed four omissions in a warrant application:
Wilson alleges that Russo made the following omissions in his warrant application: (1) he did not tell the judge that although Officer Lipp's investigative report stated that the robber was between 6'3" and 6'5", Wilson's driver's abstract indicated that he was 5'11" ; (2) he did not tell the judge that Druce did not pick Wilson out of an array; (3) he did not tell the judge that in the photo array, Wilson looked ethnically different from the others; and (4) he did not mention that height and weight were not indicated on the photo array.
212 F.3d at 788. The court found that " [a]ny reasonable person would know that the significant height differential, and the fact that an eyewitness-victim did not identify Wilson, were the kind of things the judge would wish to know." Id. (alterations and internal quotation marks omitted). The Court also found, however, that an officer could not " be expected to communicate the apparent ethnicity of the victim, or slight variations in appearance on the photographic line-up" or " the fact that height and weight were not listed on the photo array . . ." Id. The court reasoned that " a police officer cannot be expected to present a judge with complete background." Id.
In Cummings v. City of Philadelphia, 137 F.App'x 504, 505 (3d Cir. 2005), the Third Circuit affirmed a district court's finding that a detective had exhibited a reckless disregard for the truth when he failed to include certain exculpatory details in his application for a search warrant. The search warrant arose out of a complaint in which a man had allegedly " scream[ed] out [a] window 'listen you little bitch, tell your mother to give me my grandson back, or I'll kill her'" and " fired a gun at her three times." Id. (alterations omitted). The day after the alleged incident, the detective " interviewed the crossing guard who was working at the time of, and in the same vicinity as, the shooting," but " [t]he crossing guard did not recall anything out of the ordinary occurring the previous day." Id. The detective also failed to find gun shells at the scene of the alleged incident. Id. The detective then submitted an affidavit of probable cause in support of the issuance of the arrest warrant but did not include these mitigating factors. Id. The court concluded that " the
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omissions were made with reckless disregard for the truth." Id. at 506.[8] See also United States v. Jacobs, 986 F.2d 1231, 1234-35 (8th Cir. 1993) (finding that an officer who stated that a dog showed " interest" in the defendant's bag but failed to inform the magistrate judge that the dog had not gone into " alert" showed reckless disregard for the truth because the omitted material was " clearly critical to the finding of probable cause" ) (internal quotation marks omitted); Spiess v. Pocono Mountain Reg'l Police Dep't, No. 10-287, 2013 WL 1249007, at *9 (M.D. Pa. Mar. 26, 2013) (finding that " defendants' failure to include the victim's recent history of reporting unfounded rape allegations may demonstrate a reckless disregard for the truth" ).
In other cases, courts have found that omissions do not exhibit a reckless disregard for the truth. In United States v. Eberle, 266 F.App'x 200 (3d Cir. 2008), a panel of the Third Circuit addressed a detective's factual omission in an affidavit of probable cause. The affiant in the case, Detective Lynn, ran a forensic exam on a rental computer that she believed the defendant, Mrs. Eberle, had formerly used to store images of child pornography. Id. at 202. The exam produced no images of child pornography or evidence that the defendant had even used the computer, and so the investigation was closed. Id. This had taken place in August 2004. Id. Seven months later, Detective Lynn received a report that the Eberles had sexually assaulted a minor and created video and photographic images of it. Id. The detective obtained a search warrant in March 2005 with an affidavit that included the same explanation as that found in the earlier affidavit of probable cause. Id. at 203. This second warrant omitted any reference to Detective Lynn's prior search of the rented computer and its failure to reveal any images of child pornography. Id. A forensic search of the computer seized as a result of the second warrant produced 66 images of child pornography. Id. On appeal, the defendant argued that the evidence should be suppressed on the grounds that Detective Lynn's omission of her fruitless search following the issuance of the first search warrant constituted a reckless disregard of the truth. The Third Circuit disagreed:
Here, the evidence supports the District Court's conclusion that Detective Lynn did not willfully or recklessly omit the challenged information. Detective Lynn testified that she omitted information about the prior warrant and search of the computer because she believed that the computer she had searched did not belong to the Eberles. She explained that when she ran a search for their names, she did not find any images or any information leading her to believe that the Eberles had ever used the computer, and that, because they had changed computers since 2001, they may have retained downloaded images on storage devices other than the computer's hard drive. Based upon Detective Lynn's testimony, the District Court concluded that she held a good faith belief that the computer did not belong to the Eberles, " given the computer's apparent lack of connection" to them. Given this good faith belief, it does not follow that a reasonable person would know in March of 2005 that a search of a different computer more than six months earlier would be something a judge would want to know.
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Id. at 204-05. The Third Circuit also noted that, despite Detective Lynn's belief regarding the computer that was the subject of the first search warrant, " [t]he District Court concluded, nevertheless, that the computer had belonged to them." Id. at 204 n.2. The implication of this seems to be that, even though the prior search of the computer was relevant (as exculpatory evidence--the first computer was clean, after all), the detective's reasoned and good faith belief that it was not relevant prevented a finding that the omission was made in reckless disregard for the truth.
Perhaps even more on point is United States v. Williams, 718 F.3d 644 (7th Cir. 2013), in which the Seventh Circuit concluded that the district court had not abused its discretion in finding that officers had not acted with reckless disregard when they omitted several facts (including inconsistent statements of a confidential informant, or " C.I." ) from an affidavit of probable cause. The affidavit included a statement by the C.I., Bell, in which Bell said he had been in the Chicago house of the defendant, Williams, on April 8. Id. at 647. This statement, though included in the affidavit, was inconsistent with a previous statement of Bell, who " initially said he was last at Williams' apartment three or four days prior and that Williams had left for California on the 8th." Id. at 652. The Defendant, Williams, argued that the affidavit's reference to a controlled drug buy on April 8 was false and constituted a reckless disregard for the truth because, in a telephone call with Bell, Williams himself had stated (during a phone call monitored by the police) that he was in California, not Chicago. Id. at 646. Thus, " [i]f the police knew that Williams was in California on the 8th, then they could not have believed that Bell bought drugs from Williams in Chicago that same day." Id. at 652. Despite this inconsistency, the Seventh Circuit found that " [o]n this record, it is not clear that the police actually believed Williams was in California, so we conclude that the district court did not clearly err in finding that the police did not recklessly disregard the truth." Id. The agent, who was aware of the inconsistent statements about when the C.I. had last been at the defendant's house in Chicago, testified at a Franks hearing that he " included the April 8 date because it was the date he believed to be 'true and accurate' based on the tone of the monitored phone call Bell had with Williams." Id. The agent " also testified that his experience with criminals lying to each other made him skeptical that Williams was in fact in California, so he did not believe that an April 8 meeting was impossible." Id. On the basis of this testimony by the agent, the Seventh Circuit held: " Once Bell told [the] Agent [] that he met Williams on April 8, the district court could reasonably find that [the] Agent [] believed that Bell had actually met Williams on April 8." Id.
The Seventh Circuit addressed other omissions in Williams as well. The defendant argued that " the affidavit did not state the following: (1) Bell was currently under arrest for illegally buying firearms; (2) Williams was in California; or (3) Bell made inconsistent statements about the guns he saw in Williams' apartment and when he had last seen drugs in Williams' apartment." Id. at 653. The defendant argued that " [t]hese omissions gave the false impression that Bell made consistent statements to the police and that there were no reasons to doubt his credibility," and, furthermore, that " experienced law enforcement officers know that omitting facts that would give significant reasons to doubt Mr. Bell's truthfulness would provide the magistrate with an inaccurate impression of Mr. Bell and the information he provided." Id. (alterations and internal quotation marks omitted).
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The Seventh Circuit addressed each contention in turn. First, the omission regarding Bell's arrest was not " deliberately or recklessly deceptive" because, while the affidavit did not state that Bell had been arrested, the affidavit included reference to the fact that Bell had been buying marijuana from the defendant for six years and had purchased three pounds of it the week before. Id. Therefore, " the statements about the significant recent drug purchases could easily be read as giving the impression that the police were not trying to hide the fact that Bell was currently in trouble with the law." Id. Second, the omission regarding Williams' presence in California (not Chicago) was " not clearly made with reckless disregard for the truth or deceptive intent" for the following reasons:
At the Franks hearing, [the] Agent [] testified that he believed it possible that Williams had lied to Bell about his whereabouts and that Williams was actually still in Chicago. In the context of the rapidly developing investigation, Bell's statement that Williams was in California was far from indisputable proof of this fact. [The Agent]'s experience led him to question the information Williams provided to Bell, and in making this judgment, he did not disregard more probative evidence that might have existed but of which he was not aware, such as a flight itinerary or an eyewitness placing Williams in California. On these facts, it was not unreasonable for the district court to conclude that [the] Agent [] did not entertain serious doubts that he was excluding material information from the warrant.
Id. at 653-54. Finally, the Seventh Circuit found that the omission regarding the inconsistent statements about the guns seen in the defendant's house did not recklessly disregard the truth. Id. at 654. The C.I. first reported to the police that he had seen two 9--millimeter pistols in the defendant's closet, and he later testified that he had seen two .40--caliber pistols in the closet. Id. The court reasoned that " [t]he difference between a .40--caliber and a 9--millimeter pistol is only one millimeter in barrel diameter." Id. As for the omission about when Bell had last seen drugs in Williams' house, the court acknowledged that it was " more significant" but concluded that " it was not clear evidence of reckless disregard for the truth for the officers to include only the April 8 date in the affidavit." Id. Ultimately, there was " reasonable support for the district court's finding that the officers' mistakes were the product of time and negligent haste rather than reckless disregard for the truth." Id.
In this case, the Court must decide whether, viewed not through the normal summary judgment slant, but with scrupulous neutrality, Ward's initial statement--that Plaintiff had threatened Ward's son " with a knife" --should have made the final cut of Officer Bennis's affidavit for probable cause. Stated differently, would any reasonable person have known that a judge would want to hear that detail? After a review of the record (and keeping in mind the kinds of omissions that the above-cited cases found to be in reckless disregard for the truth and those that were not), the Court cannot conclude that any reasonable person would have known that he must include the detail about the knife.
Let's look at what information Officer Bennis had the morning he filed the application for the search warrant. First, he knew, based on his initial meeting with Ward and Houser around 1:00 a.m. on September 8, 2006, the following details: that Houser and Plaintiff had been arguing, that they had been screaming and yelling at each other, that Plaintiff had gone into the house and returned with a
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dangerous weapon,[9] that Houser and Plaintiff were screaming threats at each other, that Houser threw a brick through the windshield of Plaintiff's car, and that Plaintiff came back to Ward's residence later and threw a brick at the windshield of Ward's Jeep. ECF 56-4, at 5, 31-32. Second, and importantly, Officer Bennis had the information included by Ward and Houser in their written statements, which they completed and signed around 6:00 a.m. on September 8, 2006.
Officer Bennis explained, in his subsequent Affidavit of Probable Cause against Ward for making a False Report to Law Enforcement, that Ward told the story both ways at the initial meeting: Ward claimed both that Plaintiff had made threats with a knife and that Plaintiff had made threats with a gun. ECF No. 56-2, at 3. According to that same Affidavit, Officer Bennis then told Ward at the initial meeting " that she could file charges on Lasko for pulling the gun on her son." Id. Officer Bennis's testimony during cross-examination at the suppression hearing explains why he included Ward's statement about the gun and not about the knife:
Q: So you knew at the time on September 8th that at the very least Ms. Ward's statement that she gave you was unreliable; right?
A: Yes. Until she gave me the written statement, signed it. At that time, it's written, signed, and that's what she's going with.
Q: But at the time she gave you the statement on September 8th, you heard two, three different versions of her story; right?
A: Yes.
Q: And you just said that it convinced you that at the very least, the statement she was giving was unreliable?
A: I wouldn't say unreliable. I have to go by what she writes down and signs for.
ECF 56-4, at 18.
It is not unfathomable that Ward, who had been in a long-term relationship with the Plaintiff, would, upon first encountering the police, tell a slightly different and subdued version of the story, especially considering that Plaintiff was a felon prohibited from possessing a gun. As Officer Bennis reasonably explained, he went with the final version, the one that was written down and signed by Ward several hours after his first interaction with her. Moreover, Officer Bennis testified at the suppression hearing that, on the morning he filled out the affidavit for probable cause, he had no reason to doubt the accuracy of Ward's statements as reflected in her written statement. ECF No. 56-4, at 8-9. This testimony bears a striking similarity to the testimony provided by the detective in United States v. Eberle, who " testified that she omitted information about the prior warrant and search of the computer because she believed that the computer she had searched did not belong to the Eberles." 266 F.App'x at 204. Officer Bennis believed Ward's written statement that Lasko had threatened Houser with a gun. This is not necessarily undercut by the initial reference to a knife the night before. In United States v. Williams, the court dealt with a far more serious inconsistency, but the court found that once the C.I., Bell, had told the agent that he (Bell) had met the defendant in the defendant's house on April 8 (even though he had previously provided a different date and the defendant himself had stated in phone call that very day that he was in California, not Chicago), " the district court could
Page 536
reasonably find that [the] Agent [] believed that Bell had actually met Williams on April 8." 718 F.3d at 652.
That Ward first identified a knife and then a gun is simply not in the same category as: not telling the judge that an eyewitness could not identify the accused ( Wilson ), that a crossing guard heard nothing " out of the ordinary" in the face of claims of multiple gunshots and a screamed death threat ( Cummings ), that a drug-snooping dog actually had not " alerted" to the accused's bag ( Jacobs ), or a long history of unfounded rape allegations by the informant ( Spiess ). Rather, this case more closely resembles the facts of Williams. As in Williams, " [i]n the context of the rapidly developing investigation," Ward's initial statement that Lasko had a knife instead of a gun " was far from indisputable proof of this fact." 718 F.3d at 653. Ward's quickly-amended claim that Lasko had a gun can be seen as part of a developing investigation in which Officer Bennis soon elicited the true facts--namely, that Lasko actually had a gun instead of a knife. This case bears even more similarity to Williams when one considers that the stated justification for the omission in Williams was that the agent's " experience led him to question the information Williams provided." Id. Likewise, Officer Bennis candidly admitted that, up to the point of signing a written statement, stories change, but once " it's written, signed . . . that's what she's going with." ECF No. 56-4, at 18. It can thus be fairly said of Officer Bennis that he " did not entertain serious doubts that he was excluding material information from the warrant." Williams, 718 F.3d at 654. Viewing these facts from a point of scrupulous neutrality, the Court cannot say that " any reasonable person" would have known that a judge issuing a search (or arrest) warrant necessarily would have wanted to know of Ward's earlier reference to the knife.
ii. Step Two: Materiality
Even if the Court would conclude that Officer Bennis omitted the knife detail from his probable cause affidavit in reckless disregard for the truth, Plaintiff's claim would still fail to demonstrate that the omission was " material, or necessary, to the probable cause determination." Wilson, 212 F.3d at 789. In making the materiality determination, a court must perform " reconstructive surgery" on the original affidavit by first " excis[ing] offending inaccuracies and insert[ing] the facts recklessly omitted, and then determin[ing] whether or not the 'corrected' warrant affidavit would establish probable cause." Id. At this stage, the Court " engage[s] in the routine probable cause analysis, weighing the inculpatory evidence against any exculpatory evidence available to the officer." Id. at 791. In conducting this weighing, the Court must return to the ordinary summary judgment standard, and consider the Corrected Affidavit as " simply . . . one more set of factual assertions that must then be viewed in the light most favorable to the non-movant." Reedy, 615 F.3d at 214 n.24.
Reconstructive surgery in this case results in the following affidavit (with the inserted facts in bold):
On this date, 09-08-06, this Officer was dispatched to 216 Main St. in Leechburg for two males fighting in the street. On arrival this Officer spoke with Sue Ward who stated that her son Stefan Houser and live-in boyfriend Travis Lasko got into an argument.
Ward stated that Lasko wanted to talk and " mend" things at his other house at 566 Spang Ave. in Leechburg. Houser, her son, wanted to come along for protection since Lasko had already threatened Ward earlier. When Houser and
Page 537
Ward got to Lasko's house he began to yell and scream at Ward and call her names.
At this time Lasko went back into the house and came back outside holding a small, white and black hand gun. Lasko then pointed the gun at Houser and said he was going to " shoot him." [When this Officer first talked to Ward, she said that Lasko had a knife and then, during the same conversation, she said he had a gun. The next morning, when she completed her signed, written statement, she maintained that Lasko had a gun.] Houser and Ward left and returned to their home at 216 Main St. in Leechburg. Lasko came down to 216 Main St. later and threw a brick at Ward's Jeep windshield.
Examination of Laskos criminal history indicates that he is a convicted felon and is not permitted to possess a firearm.
ECF 56-1, at 1. The initial search warrant application listed two criminal violations: a violation of 18 Pa. Cons. Stat. § 2701 (Simple Assault)[10] and a violation of 18 Pa. Cons. Stat. § 6105 (Persons not to possess firearms). Viewing these facts in the light most favorable to the Plaintiff, this Court concludes that the warrant (search or arrest) would have issued based on the affidavit as reconstructed above. As explained in Wilson v. Russo, " [p]robable cause exists if there is a 'fair probability' that the person committed the crime at issue." 212 F.3d at 789. " [T]he evidentiary standard for probable cause is significantly lower than the standard which is required for conviction" and " does not depend on whether the suspect actually committed any crime." Wright v. City of Phila., 409 F.3d 595, 602 (3d Cir. 2005). " [S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment." Hill v. California, 401 U.S. 797, 804, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). The fact that Ward's story changed during the first conversation does not undermine a finding of probable cause. Viewing the Corrected Affidavit as a whole, it is quite plain that it sets out a tale involving a heated argument, yelling and screaming by Lasko at Ward, Lasko's retrieving a dangerous weapon (including several very specific references to a " small black and white handgun" ), a direct threat by Lasko to shoot Houser, and Lasko whipping a brick through the windshield of Ward's Jeep. In that overall context, the added information injected into the Corrected Affidavit simply does not vitiate the probable cause finding as to the gun charge. The Corrected Affidavit paints a clear picture of an escalating offensive by Lasko with a dangerous weapon (a gun based on two conversations and a signed statement) and a brick. Even viewed in the light most favorable to Plaintiff, " no genuine issue of material fact exists as to whether the corrected affidavit supports a finding of probable cause." Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997).
Furthermore, even if the Court were to conclude that the search warrant for the " small black and white hand gun of unknown caliber" would not have issued but for Officer Bennis's omission, an arrest warrant still would have issued for the § 2701 Simple Assault charges. Plaintiff alleges nothing to undermine the probable cause to arrest Plaintiff based on Simple
Page 538
Assault charges.[11] No matter how you slice it, the facts show that there was a " fair probability" that Plaintiff committed that crime. For a Simple Assault charge, it does not matter whether the Plaintiff threatened Houser with a knife or a gun: probable cause existed regardless of the weapon used.[12]
Once the Officers were in Plaintiff's house (by Plaintiff's consent), ECF 56-5, at 3, they were permitted to perform a protective sweep, which is a " cursory inspection of those spaces where a person may be found," Maryland v. Buie, 494 U.S. 325, 335, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).[13] The Third Circuit has found that " the Buie inquiry of whether a space can hold a person is judged from the ex ante perspective of an objectively reasonable officer." United States v. Snard, 497 F.App'x 228, 232 (3d Cir. 2012) (finding that police officers' search under box spring and mattress was permissible under protective sweep exception to warrant requirement), cert. denied, 133 S.Ct. 1508, 185 L.Ed.2d 560 (2013). While it is true that a protective sweep can " last[] no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises," Buie, 494 U.S. at 335-36, the facts of Plaintiff's case are that the officers spotted a marijuana plant in plain view at the top of the stairs going to the second floor,[14] ECF 56-5, at 3. When they spotted the marijuana plant, the officers obtained a second search warrant. Id. In executing the second warrant, the officers found marijuana, cocaine, drug paraphernalia, and the black and white handgun. Id.
Thus, even if an arrest warrant had issued only on the basis of the violation of 18 Pa. Cons. Stat. § 2701 (and the search warrant for the gun had been denied), the Plaintiff's Fourth and Fourteenth Amendment rights would still have been not violated at that initial step or any subsequent step along the way. First, as explained above, the arrest warrant would have (and should have) issued even if the omitted material had been included in the affidavit (on Simple Assault grounds at the very least). Second, the officers engaged in a permissible protective sweep of the house under Buie. Third, the marijuana plant
Page 539
was in plain view. See Horton v. California, 496 U.S. 128, 135, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (" [A]n object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant." ). Finally, once the officers had seen the marijuana plant, they obtained a second search warrant (this second search warrant identifying the gun and drugs as the items to be searched for and seized), which led to the finding of the gun.
In sum, even if the Court were to conclude (which it does not) that Officer Bennis's omission was made in reckless disregard for the truth, the omission would not have been material. And even if the omission were found to be material with respect to the search warrant, the arrest warrant, which issued in part on the basis of the Simple Assault charge, was good enough, as a legal matter, to get the ball rolling. In other words, on top of everything else, the events of the day played out permissibly on a basis entirely independent to the issuance of the first search warrant.
Accordingly, the Plaintiff's federal constitutional rights were not violated as a matter of law.
Because the Court concludes that Plaintiff has failed to advance sufficient record evidence that there is any genuine issue of material fact that his Fourth and Fourteenth Amendment rights were violated and the remaining Defendants are entitled to a judgment in their favor as a matter of law, his claims against Chief Diebold and the Borough of Leechburg must necessarily fail. Summary Judgment is proper, and the Court will therefore grant Defendants' Motion.
An appropriate Order will be entered.
For the reasons set forth in the Court's Opinion of this date, the Motion for Summary Judgment [ECF. No. 50] is GRANTED and all claims against the Defendants, Borough of Leechburg and Chief Michael Diebold, shall be dismissed WITH PREJUDICE and judgment is hereby entered in favor of the Borough of Leechburg and Chief Michael Diebold.
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Hey guys, I'm moving my blog over to another.
A Phantom
When I started Phantoms, I really admire the raw freedom of my creativity that led me to test the boundaries of my limits. As I grew older and better at drawing, this series began to develop into something else as well. It took precious time to render out each creature, but when one was finished, there was a strong feeling of accomplishment and enlightenment. This blog is mostly dedicated to my concept art, but it pays homage to my heritage with the first few posts.
Wednesday, May 4, 2011
Wednesday, March 30, 2011
Spikey Mountains
The composition and the underlay values/colors was initially inspired by this dream-like/random image I had in my head.
I painted the underlay with a mouse at first and then tightened up the details with the tablet. I had real fun with this one and I think I'm painting a lot faster now.
My friend says it reminds him of How to Train Your Dragon, and maybe that is because I've seen that movie about 5-6 times now.
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Sunday, November 7, 2010
Desert Cliff
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Wednesday, October 20, 2010
Self-Portraits of Wesley Lin
This first one was done during my early weeks of art center.
This one was done as a final for my Design Fundamentals I final.
This is a self-portrait of me after my frist term of Art Center.
It doesn't take an art historian to get the story that's being told here.
This one was done as a final for my Design Fundamentals I final.
This is a self-portrait of me after my frist term of Art Center.
It doesn't take an art historian to get the story that's being told here.
Posted by Wesley Lin at 3:14 AM No comments:
Sunday, September 19, 2010
Blue Ogre
Here's my new character: the blue ogre
I managed to get my CS5 trial starting again. This time, it's on the mac
And there's no lag. What a beast.
Played around with the color on this one. Don't know if you can tell. Probably can go even crazier next time.These two are still very unsaturated.
It's supposed to be a blue, but whatever. I'm really proud of this one. Pops out a lot more and it looks very painterly.
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Saturday, August 7, 2010
The Breathing Tree
For my grandfather, as well as for the benefit concert.
I took the shape of the tree from this Chinese sculpture I think. The shape was really interesting and surreal, and I felt I should have found a way to incorporate it into the world of Alice and Wonderland (my portfolio). I did make a thumbnail, but that was it. I felt...bad. haha
Well this makes up for it in I guess (:
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Tuesday, April 13, 2010
Alien Astronaut
Just a little something for funzies.
*Updated November 7th
Did this one in ps elements 8
Went for a more diplomatic and evil character.
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|Publication number
|Publication type
|Application number
|Publication date
|Oct 6, 2009
|Filing date
|Jun 10, 2004
|Priority date
|Jun 10, 2004
|Fee status
|Also published as
|Publication number
|Evan Harwood, Ian Grody
|Original Assignee
|Evan Harwood, Ian Grody
|Export Citation
|BiBTeX, EndNote, RefMan
|Patent Citations (13), Non-Patent Citations (3), Referenced by (13), Classifications (14), Legal Events (1)
|External Links: USPTO, USPTO Assignment, Espacenet
1. Field of the Invention
The present invention relates generally to a match-making system and, more specifically, to a system that obtains and utilizes DNA from users of the system in order for a first user to select the DNA of a second user having desired traits. Thereafter the system virtually combines the DNA of the first and second users in order to produce virtual offspring. The users are then able to rear and monitor the virtual child.
2. Description of the Prior Art
Numerous matching systems are present in the prior art. Typical prior art matching systems are described in U.S. Pat. Nos. 5,086,394; 5,681,046; 5,920,845; 5,963,951; 6,052,122; 6,061,681; 6,243,375; 6,282,515 and 6,594,502.
One such prior art system requires users to submit data about themselves as well as data about a desired mate. This data is then stored in a personal device which the users can take with them. The personal devices are connected to a local control unit which receives information from the personal devices within a specified area and compares all received information in order to determine if a match exists. If a match exists the control unit transmits match signals to the personal devices of the matched users and the users approach and meet at the local control unit.
Additionally, there are matching "games" whereby users answer a plurality of questions by giving a numerical rating as to the importance each characteristic. The numerical ratings are averaged and related to a compatibility scale to determine if a match exists. Other games are known wherein the users are given observable tags including preferences thereon. The users are able to interact and submit preferences regarding the people they just met. A computer queries the preferences and determines a match list which includes information for setting up additional meetings between matched users.
Other known matching systems include a database that stores user information and preferences associated with the user information. The database repeatedly is searched for a potential match whereby each successive search utilizes a less restrictive search criteria until a match is found. This database is remotely accessible via a telephone or internet and allows user to store messages about themselves which are selectively displayable to other users.
While these matching systems may be suitable for the purposes for which they were designed, they would not be as suitable for the purposes of the present invention, as hereinafter described.
Additionally, extracting DNA from human cells is also well known. Specifically, usable DNA for genetic sequencing can be obtained by taking a swab of the inside of the cheek of a user. When the cheek is swabbed with a cotton swab, epithelial cells (buccal cells) are removed and the cells adhere thereto. The cells on the swab can be lysed in order to remove the DNA contained therein. Typically, the cells are put through a digestion process using a proteinase enzyme which breaks down the cellular components so that the DNA contained in the nucleus can be isolated for later use. Upon completion of the digestion process, the nucleic acids are stabilized and are put through a plurality of washes wherein any impurities present from the digestion process are removed. Thereafter, the DNA is eluted in water or a low-salt solution. This procedure yields DNA that is suitable for a plurality of molecular processes including forensic analysis, diagnostic testing and sequencing.
Upon elution of the DNA as described above, it is important to ensure that there is enough of the DNA sample present for adequate sequencing thereof. A preferred method of producing large quantities of DNA sequences (amplification) for analysis is using a polymerase chain reaction (PCR) technique. This technique requires knowledge of part of the sequence to be amplified for synthesis of two oligonucleotide which bind to a single strand of denatured DNA for amplification thereof using the Taq polymerase enzyme. Taq polymerase is an enzyme that extends the length of a DNA strand from the primer using nucleotides as building blocks. The PCR reaction is run in cycles. A single cycle includes the following steps. The DNA must first be denatured by heating it for a predetermined amount of time until the DNA separates into a single strand. The temperature is then reduced so that the oligonucleotide primers can bind to the denatured DNA. Thereafter, the temperature is increased so that the Taq Polymerase can extend the length of the DNA strand. Generally this process is automated so that a plurality of cycles can be completed thereby significantly increasing the amount of target DNA.
Once a sufficient amount of the target DNA is present, the DNA can be sequenced. A common method of sequencing DNA is through an elongation of a single strand of DNA using a polymerase enzyme similar to the PCR described above. However, in addition to a primer, deoxynucleotides, and the DNA polymerase, a limited number of dideoxyneleotides are inserted as well. The dideoxynucleotide is at least one of Adenine, Thymine, Cytosine, and Guanine and lacks a hydroxyl group at the 3′ end which prevents further synthesis of the DNA strand. For this procedure to work properly, there must be four separate simultaneous reactions wherein each one of the reaction has a different dideoxynucleotide. Therefore, within an individual reaction a plurality of different sized DNA strands are synthesized each having same dideoxynucleotide at the 3′ end. In order to obtain the full sequence the, the DNA fragments from each of the four reactions are aligned adjacently and separated by gel electrophoresis. This produces a ladder map in four lanes which can be read from top to bottom to correctly obtain the sequence of the target DNA. Additionally, sequencing machines exists that use four different colored fluorescent dyes which produce a colored pattern of peaks from which the sequence can be determined.
The present invention relates generally to a match-making system and, more specifically, to a system that obtains and utilizes DNA from users of the system in order for a first user to select the DNA of a second user having desired traits. Thereafter the system virtually combines the DNA of the first and second users in order to produce virtual offspring. The users are then able to rear and monitor the virtual child.
A primary object of the present invention is to overcome the shortcomings of prior art match-making systems by providing users the ability to choose potential matches based on traits identified from user's DNA.
Another object of the present invention is to obtain a sample of DNA from a user for sequencing thereof. Thereafter, the sequence is compared with a known sequence which corresponds to a plurality of phenotypic and genotypic traits. When a portion of the user's sequence matches a portion of the known sequence, the trait is stored in a searchable database. This procedure is repeated until the user's sequence has been matched with all known sequences that correspond to human traits.
A further object of the present invention is to provide match-making system wherein each user of the system can search the trait database for traits that user find to be desirable in a potential mate. Specifically, the user is able to enter a plurality of traits in a form based computer application which queries stored entries and produces a list of potential matches. The matches come from registered users of the system that have had their DNA sequenced to produce a trait list. The system returns a list of potential matches based on the input traits. The requesting user may then further narrow or expand the search until the user finds an ideal match. Upon finding an ideal match, the requesting user may be able to view all of the user's traits that were identified in when the DNA was sequenced.
An additional object of the present invention is to provide a matching system wherein each user's contact information is kept confidential until there is mutual agreement between both the requesting user and desired user to contact one another. This ensures privacy and prevents misappropriation of information obtained during a search.
Still another object of the present invention is to provide means for creating a virtual child by combining DNA from two consenting users of the system. The system allows for a virtual offspring of two users to be formed by combining the genetic traits of each user to form a single virtual offspring that will express the combined traits. Preferably, the traits are combined using an algorithm that takes into account various external factors affecting each traits including but not limited to dominance, recessiveness, sex-linkage. For each trait that is combined a unique algorithm based on the external factors associated with that particular trait is employed. This process is preferably combined in a software application that runs every algorithm and outputs a single list of traits to be expressed by the offspring. Alternatively, an algorithm can be employed to simulate conception whereby the DNA of each user will virtually undergo meiosis to produce a gamete for combination therebetween. Thereafter, a second algorithm is employed, which includes external factors as discussed above to determine, upon combination of the genetic material from each gamete, which trait will be expressed.
Yet a further object of the present invention is to provide a virtual world in which each virtual offspring can be raised. The user's can selectively determine whether or not to participate in at least one of a fully automated virtual world, and a completely interactive virtual world. In the fully automated virtual world, the only active participants are the user's and the virtual child. In the completely interactive virtual world, only the backbone structure is automated and each user and their virtual child are active participants and are able to interact with other virtual parents and their respective virtual children.
Another object of the present invention is to provide a plurality of virtual worlds wherein each virtual world functions on a different time scale. Preferably, one virtual world operates in real time and another operates at an accelerated time to allow the virtual child to be raised at a quicker pace.
Yet a further object of the present invention is to provide a virtual orphanage to place any unwanted virtual children therein. User's who do not wish to find a potential mate to produce a virtual child can search the virtual orphanage to adopt a virtual child. Upon adopting a virtual child the user and virtual child can join a fully automated virtual world or the interactive virtual world.
Still another object of the present invention is to provide means for transporting the virtual child on a portable electronic device.
The foregoing and other objects and advantages will appear from the description to follow. In the description reference is made to the accompanying drawings, which forms a part hereof, and in which is shown by way of illustration specific embodiments in which the invention may be practiced. These embodiments will be described in sufficient detail to enable those skilled in the art to practice the invention, and it is to be understood that other embodiments may be utilized and that structural changes may be made without departing from the scope of the invention. In the accompanying drawings, like reference characters designate the same or similar parts throughout the several views.
The following detailed description is, therefore, not to be taken in a limiting sense, and the scope of the present invention is best defined by the appended claims.
In order that the invention may be more fully understood, it will now be described, by way of example, with reference to the accompanying drawing in which:
The foregoing and other objects and advantages will appear from the description to follow. In the description, reference is made to the accompanying drawing, which forms a part hereof, and in which is shown by way of illustration specific embodiments in which the invention may be practiced. These embodiments will be described in sufficient detail to those skilled in the art to practice the invention, and it is to be understood that other embodiments may be utilized and that structural changes may be made without departing from the scope of. In the accompanying drawings, like reference characters designate the same or similar parts throughout the several views.
The following discussion describes in detail one embodiment of the invention and several variations of that embodiment. This discussion should not be construed, however, as limiting the invention to those particular embodiments. Practitioners skilled in the art will recognize numerous other embodiments as well. For a definition of the complete scope of the invention, the reader is directed to the appended claims.
Turning now descriptively to the drawings, in which similar reference characters denote similar elements throughout the several views,
Shown in
The process of obtaining the genetic material of a user using the contents of the kit 12 will be discussed hereinafter. In order to obtain the genetic material from the user, the user grips the staff 17 and runs the cotton tip 19 along the inside of his/her cheek. This allows the cotton tip 19 to collect epithelial cells thereon. The swab 16 then must be transferred to a lab employed by the system 10. The user inserts the cotton tip 19 of the swab 16 through the opening 25 of the vile 18 so that the cotton tip 19 is positioned within the body 23 of the vile 18. The user then breaks off a portion of the staff 17 that extends out from the body 23 through the opening 25 of the vile 18. The lid 21 is secured over the opening 25 thereby creating an airtight seal. The user then inserts the sealed vile 18 in the envelope 20 and seals the envelope 20 using the flap 27. Preferably, the envelope is a postage paid envelope having an address printed thereon thereby ensuring that user's epithelial cells are received by a desired laboratory. As discussed hereinabove in the background section of the present application, the genetic material is then eluted from the epithelial cells contained on the cotton tip 19 of the swab 16 in a known manner.
It is preferable that the box 14 in which the kit 12 is contained, includes printed instructions detailing the above process by which the DNA of the respective user is acquired. Additionally, the printed instructions may include information about the process of how the DNA is actually eluted from the cotton swab 19 as well as a detailed statement as to how the user's privacy is to be maintained. It is well known that genetic material contains very specific information about the user from which it is obtained and thus it is important to maintain the strictest level of privacy so as to allow very selective access to the information to prevent any mishandling or misappropriation thereof.
For the following steps discussed below with respect to
Upon completion of step S300, the user becomes a searching user. The searching user enters traits which are found to be desirable in a potential mate as shown in step S302. For example, the searching user may enter "blue eyes" and "blonde hair". These traits are merely exemplary and stated to illustrate the point of the system 10 of the present invention. The traits include phenotypic traits which are outwardly expressed and visible to other people, such as eye color, and genotypic traits which are not visibly seen by another person, such as being a carrier for sickle-cell anemia. The searching user is able to insert any known traits that are recognized by the system 10 of the present invention. Preferably, the system will provide an updateable list to each user of known traits that are searchable. This list of known traits will be expanded as further research uncovers a genetic sequence that corresponds to a human trait. Furthermore, if additional genetic sequences are uncovered which correspond to a previously identified trait, those genetic sequences will be used to screen all user samples to determine if the user possesses that sequence and the trait associated therewith. It is also preferable that the user samples are regularly re-analyzed in order to add additional traits to the respective user's record in the trait database, thereby allowing the search to be as accurate as possible.
Additionally, the system includes a user feedback system whereby each user can selectively choose to provide additional information about themselves. This additional information includes but is not limited to physical attributes, preferences, likes, dislikes and talents. This list of additional information is described for purposes of example only and the additional information entered by the user in the user feedback system may include any item of information about the user. The data entered by the user into the feedback system is stored in a user feedback database which is linked to the user's genetic information. The searching user can also search for matching users by entering items of additional information that are desirable characteristics. However, as will be discussed hereinafter, the user feedback system will merely be a search aid to assist the searching user in locating a matching user. The search capability of the system 10 may be at least one of a keyword search system and a Boolean search system.
Thereafter, in step S304, the searching user is able to review the results obtained from the search described in step S302. The returned results will display information about the traits of each of the users who correspond to the returned results as well as any information contained in the user feedback system. The searching user will not be provided any identification information about any of the users whose results were returned in the search. The returned results may include all identifiable traits possessed by the user beyond the traits input in the initial search from step S302. This allows the user to selectively determine if the returned result may be a potential match, hereinafter known as a "matching user".
The user then must decide in step S306 whether or not an additional search is required. If the searching user is not happy with the results returned from the search, the searching user is returned to step S302 in order to further tweak the search parameters. This may include at least one of adding additional traits and removing a previously entered trait as well as additional information items. Upon tweaking the search, the searching user then repeats step S304 as described above.
If the searching user does not require an additional search as in step S306, then the searching user proceeds to step S308 wherein the searching user selects at least one desired mate. Upon selecting at least one desired mate, the user then begins a matching process. The matching process is preferably performed by the system 10 in order to maintain the matching user's privacy. The system 10 notifies the matching user that a searching user has chosen the matching user to produce a virtual child. The matching user is provided with the traits possessed by the searching user in order to make a determination as to whether or not the matching user wants to produce a virtual child with the searching user. Upon the matching user deciding to proceed with producing a virtual child with the searching user, the matching and searching users proceed to step S310. The users can also selectively determine to provide the other user with identification information. Alternatively, the system 10 may be configured so as only require the knowledge and consent of the searching party to produce a virtual offspring. If the system 10 is configured in this manner, no identification information is exchanged between the parties and only the matching user's genetic information is provided for virtual combination with the searching user's genetic information to produce a virtual child. Furthermore, the users of the system can contact one another prior to deciding whether or not to produce a virtual child. Additionally, the users can selectively determine if they want to meet one another prior to producing a virtual child.
In step S310, a combination system, such as the ones described hereinafter with specific reference to
Upon using one of the combination systems in step S310, the searching user and the matching user are able to observe and interact with the produced virtual child in a virtual world as shown in step S312. The user(s) must then decide in step S314 whether or not there will be complete interaction. If the user(s) decide they do not want complete interaction then the virtual child will be raised automatically as shown in step S316. Step S316 directs the user to a fully automated virtual world which will be discussed hereinafter with specific reference to
In order for the system 10 to populate user records in the trait database 48, a user record must be created therein. The processor 40 creates a user record in the trait database 48. Thereafter the system 10 must analyze a sequence of DNA 50. The sequences to be analyzed will come from samples obtained in the method as discussed hereinabove with specific reference to
The search mechanism 52 is connected to the processor 40 and preferably a web-based search mechanism wherein a user can remotely log into the system 10 of the present invention. Upon logging in, the user can selectively search the trait database 48 as discussed hereinabove with specific reference to
Upon the processor obtaining trait lists 55, 57 from the trait database 48, the processor 52 combines the searching user's 54 trait list with the matching user's 56 trait list. The combined list results in the processor 52 producing an offspring list 59. As shown herein, the offspring list 59 identifies which trait was inherited from which user.
The algorithm which controls the virtual gamete combination system used by the system 10 of the present invention virtually manipulates the genetic material to mirror the well known process of meiosis. As shown in
The above algorithm is described using cellular terminology for purposes of example only. However, no actual cellular manipulation occurs. Rather, the system 10 of the present invention utilizes the sequence of DNA obtained to produce a chromosomal map and chromosomes are manipulated using a computer software application so as to mirror the process of the meiotic division.
The processor 72 selectively chooses which of the male gametes (A-D) will be used for combination with the single female gamete (A). The selection process preferably mimics nature and is completely random. As shown in
The DNA of the V-child is then sequenced and a trait list is generated in a manner similar to the manner discussed in
It is important to note that combination systems discussed hereinabove with specific reference to
Upon creation of a virtual child 82, the users (I) and (II) can selective raise the virtual child 82 in the automated world. In the automated world 80, the only active participants are the users 81. The V-Child is shown with the combined genetic material from the users 81 and is able to respond to commands given thereby. Additionally, the V-child 82 is responsive to the scenarios 84. The users 81 are guided by the rules of the scenarios 84 and raise the V-child 82. The users 81 are able to selectively control the time-flow their particular automated world with the time control mechanism 86. The users 81 determine the unit of time and thus can determine how fast their V-child 82 matures. This time control mechanism 86 is selectively adjustable at any time after the automate world 80 is joined by the users.
Should the users 81 desire to constantly monitor the actions of their V-child 82, a portable device 88 is selectively connected to the automated world 80. The portable device includes at least one of a PDA, a laptop computer and a wrist watch. The automated world 80 is selectively downloadable onto the portable device 88 and the users 81 are able to continue raise the V-child 82 using the portable device 88. This is ideal when the users 81 know they will not be able to log into the system 10 of the present invention. Additionally, the portable devices 88 of both users can be connected to each other so that both V-parents are able to facilitate the interaction and development of the V-child 82 when both users are offline. The manner in which the portable devices 88 are connected to one another includes at least one of a serial connection, a USB connection, an infra-red (IR) connection and a firewire connection.
Furthermore, should the users 81 decide they no longer want to raise the virtual child 82, the virtual child 82 can be deposited into a virtual orphanage 89. The virtual orphanage 89 functions like an auto-pilot wherein a time unit is selectively determined and the V-Child 82 is raised by pre-stored instructions in the scenarios 84. The life of the V-child lasts until, an end scenario is selected by the automated world 80. Alternatively, once a V-child is deposited into a virtual orphanage 89, other users may be able to access that particular automated world. If an outside user(s) decides to access the automated world, that outside user (s) can selectively determine if they want to continue raising the V-child from that point in time. Should this be decided, the outside user is granted full control over the automated world 80. Further, the outside user(s) are prohibited from knowing who the original users 81 were and are limited to knowing the genetic makeup of the V-child 82.
Since this is an automated world and the only participants are the users, the system of the present invention preferably includes means for storing a plurality of automated worlds that each operates independent of one another.
The timing mechanism 99 is unlike the timing mechanism as described above in
Similar to the automated world 80 in
The description of both the automated world 80 in
A further aspect of the present invention is to allow the V-children produced from the users genetic and trait information to mate in a similar manner as the V-parents. This option is available in each of the fully automated and interactive worlds (collectively, worlds). As the V-children develop and are raised by their V-parents, the worlds can selectively cause the multiple V-children present in each world to mate with one another. This process allows for at least one of the trait based information or actual genetic code of a first v-child to be combined with that of a second v-child. Thereafter, the V-parents will not only have V-children, but v-grandchildren. Further application of this option is to create extended V-families and communities. The manner in which the V-children mate with one another is similar to the manner in which the V-parents are mated which is discussed hereinabove with specific reference to
From the above description it can be seen that the present invention overcomes the shortcomings of the prior art by providing a system and method for matching users qualities and traits obtained from submitted DNA samples. The system includes a cotton swab for swabbing the inside of the user's mouth in order to obtain a DNA sample and a transport kit for transporting the swab to a lab for DNA analysis thereof. Each submitted DNA sample is sequenced and a list of traits and characteristics is produced. Users can input specific characteristic which a desired mate should possess and the system can search the catalogued DNA samples for a potential match. Upon a user determining that a selected sample is acceptable, the system virtually combines the users DNA with the selected DNA in order to produce a virtual child. The system then allows the user(s) to raise the virtual child in at least one of real time and accelerated time. The virtual child can be transported on any portable electronic device and should the virtual child no longer be desired, the virtual child can be placed in a virtual orphanage. Other users can then choose to adopt any of the virtual children stored in the virtual orphanage. The user can also selectively choose to meet the actual person whose DNA sample was combined with the users.
It will be understood that each of the elements described above, or two or more together may also find a useful application in other types of methods differing from the type described above.
While certain novel features of this invention have been shown and described and are pointed out in the annexed claims, it is not intended to be limited to the details above, since it will be understood that various omissions, modifications, substitutions and changes in the forms and details of the device illustrated and in its operation can be made by those skilled in the art without departing in any way from the spirit of the present invention.
Without further analysis, the foregoing will so fully reveal the gist of the present invention that others can, by applying current knowledge, readily adapt it for various applications without omitting features that, from the standpoint of prior art, fairly constitute essential characteristics of the generic or specific aspects of this invention.
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text:
Free personalized radio that
plays the music you love
Coward With Claws
Features of This Trackelectronica influences
punk influences
chromatic harmonic structure
mixed acoustic and electric instrumentation
electric guitar riffs
an acoustic guitar solo
a smooth male lead vocalist
acoustic rhythm guitars
angry lyrics
emphasis on instrumental arranging
use of chromatic harmony
These are just a few of the hundreds of attributes cataloged for this track by the Music Genome Project.show more
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