Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

FLOREK v. VILLAGE OF MUNDELEIN, ILLINOIS (August 16, 2011)

After successfully completing a controlled marijuana buy at a Mundelein, Illinois apartment, the police obtained a search warrant. They executed the warrant late in the evening of December 7, 2004. Linda Florek and her son lived in the apartment (apparently, the son’s friend was the marijuana seller). Florek arrived home from work at approximately 10:00 p.m., at which point she enjoyed a marijuana cigarette. The police arrived at approximately 10:20 p.m. According to the police, they knocked and announced their presence and broke down the door after about 15 seconds without a response. The apartment still smelled of marijuana. Florek admitted to the police that she had hidden some marijuana upon their arrival. Florek and her son were handcuffed and kept in the living room during the one-hour search. The parties disagree about what happened next. According to Florek, she asked if she could take some baby aspirin because she was experiencing chest pains and thought she might be experiencing a heart attack. After the police rejected her request, she asked for an ambulance. The police told her to wait until they got to the police station. Florek also claims she told police she was having a heart attack before being placed in the van for transportation to the police station. According to the police, Florek did ask for a baby aspirin and they denied the request because of police policy that only physicians administer medication. Instead, they offered to summon paramedics if she needed help. She refused. The police concede that Florek complained about the choice of transportation to the police station but assert that she did not tell them of any chest pains until they were on their way. They immediately radioed for assistance and met an ambulance when they arrived at the police station, minutes later. Florek was taken to the hospital, where physicians confirmed that she had suffered a heart attack. Florek filed suit against the Village and individual police officer Hansen, alleging that: a) the denial of her request for baby aspirin was an unreasonable seizure, b) that the refusal to call an ambulance was an unreasonable seizure, and c) that the police's failure to wait a reasonable time after the knock and announce amounted to an unreasonable search. Magistrate Judge Valdez (N.D. Ill.) denied summary judgment on the knock and announce and ambulance claims and granted summary judgment to the defendants on the aspirin claim on qualified immunity grounds. At trial, after the close of plaintiff's case, the court directed a verdict for the Village. After trial, the jury found against Florek on the remaining claims. Florek appeals.

In their opinion, Seventh Circuit Judges Flaum and Sykes and District Judge Conley affirmed. The appeal raised three challenges: the summary judgment on the aspirin claim, the directed verdict for the Village, and the exclusion of an expert on the knock and announce claim. The Court rejected each. It first addressed the qualified immunity on the aspirin claim. The qualified immunity analysis involves two questions: whether there is a constitutional deprivation and whether the right at issue was clearly established at the time. If either question is answered no, the defendant is entitled to qualified immunity. Although the magistrate judge found qualified immunity by answering the clearly established prong in the negative, the Court affirmed by answering the deprivation prong in the negative. In the medical needs context, a seizure is unconstitutional if an arresting officer does not respond reasonably considering the totality of the circumstances. Here, the Court criticized the way the case was litigated in the district court. Since the aspirin claim and the ambulance claim were, in fact, both part of the same arrest and both were included in the totality of circumstances, they should have been presented as one claim. Nevertheless, the Court addressed the aspirin claim as a distinct claim. The Court considered the four Williams factors: the officer's notice of a medical need, the seriousness of the need, the requested treatment, and any police interests. Here, the officers were not on notice of a serious medical condition, the requested treatment was minor, the police were conducting a search for illegal drugs, and the officers summoned an ambulance when they were on notice of a serious medical condition. Therefore, the Court concluded that the officer was entitled to summary judgment on the aspirin claim. Florek’s only argument with respect to the directed verdict for the Village also related to the aspirin claim. Given the court's resolution of the individual claim, the directed verdict was appropriate. On the knock and announce claim, Florek presented expert testimony to the effect that no reasonable officer would expect a response from an apartment’s resident within 15 seconds at that time of night. The magistrate judge excluded the evidence on the grounds that the subject matter was within a layperson’s normal comprehension. Evidence Rule 702 requires that expert testimony "assist the trier of fact" in determining a fact issue. That generally means that the expert must have some specialized knowledge or experience that will help the trier of fact understand the testimony’s subject matter. Here, the Court concluded that the magistrate judge did not abuse her discretion in excluding the testimony. In some circumstances, expert testimony might be helpful in determining whether officers waited a reasonable time before forcefully entering a residence. A witness with expertise in law enforcement might offer testimony about how drugs are disposed of or what dangers await police officers in such a situation. But testimony about how long it would take a person to answer the door late at night is within the everyday experience of a layperson.

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PARKEY v. SAMPLE (October 27, 2010)

Indiana State Trooper Jason Sample was the Marijuana Eradication Coordinator in his northeastern Indiana police district. He was quite knowledgeable about marijuana, its use, and its growth. In early 2005, several things raised his suspicion about the activities of Hammond resident James Parkey: a) the DEA told him that Parkey received shipments from a company known to sell marijuana growing supplies, b) Parkey had a criminal record, and c) Parkey's basement windows were covered. Based on this suspicion, Sample inspected the trash containers behind Parkey's residence on two occasions. On each occasions, he discovered marijuana stems, marijuana cigarette remnants, and discarded mail addressed to Parkey. Sample obtained a search warrant based on the DEA tip, the trash inspection results, and Parkey's criminal record. The search resulted in the seizure of 10 marijuana plants. Although charges were filed against Parkey, they were later dismissed. Parkey filed suit pursuant to § 1983, alleging a violation of his Fourth Amendment right against unreasonable search and seizure. Judge Lee (N.D. Ind.) granted summary judgment to Sample. Parkey appeals.

In their opinion, Judges Posner, Kanne, and Sykes affirmed. Parkey principally attacks the veracity of the affidavit. But, the Court stated, there is a presumption of validity that attaches to the affidavit. In order to avoid summary judgment on that issue, Parkey must have evidence that Sample made misstatements "knowingly or intentionally or with a reckless disregard for the truth." He must also show that the misstatements were necessary to the determination of probable cause. The Court concluded that he did neither. Parkey does not contest the Sample received a tip from the DEA and that he found the stems and remnants in his trash. Instead, he asserts that Sample failed to prove that the remnants were his or that Sample researched his criminal history. Attacking the lack of evidence supporting a warrant affidavit is not sufficient to defeat summary judgment. The Court added that Parkey loses even if Sample misrepresented Parkey’s criminal record. The criminal record was not necessary to the finding of probable cause.

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CARMICHAEL v. VILLAGE OF PALATINE (May 21, 2010)

Palatine police officer Timothy Sharkey stopped an automobile being driven by Albert Carmichael and Keith Sawyer as they returned to their motel parking lot. Sharkey searched both Carmichael and the automobile. He found marijuana and cocaine. When asked why he had pulled them over, Sharkey stated that it was because the automobile lacked a front license plate and had tinted windows. After fellow officer Steve Bushore arrived, Sharkey conducted a search of Sawyer. In the motel parking lot, he pulled Sawyer's pants down and shined a flashlight into his underwear. The officers let Sawyer go but arrested Carmichael on drug charges. They also cited him for having no functioning taillights. In his report, Officer Sharkey made no mention of the tinted windows or absence of front license plate. At a hearing on a motion to suppress the evidence, Sharkey testified that the reason for his stop was the non-functioning tail lights, not the license plate or tinted window. Other testimony established that the tail lights were functioning at the time of the stop. The trial judge suppressed the evidence and all charges were dropped. Carmichael and Sawyer sued the Village and the officers under § 1983. They alleged unreasonable search and seizure, false arrest, and excessive force, as well as state law claims. Judge Kendall (N.D. Ill.) granted summary judgment to the defendants. She concluded, on the search and seizure claim, that the fact that a window was tinted and the front plate was missing provided probable cause. On Sawyer's unreasonable search claim, she concluded that it was constitutional without any detailed examination of the manner in which it was carried out. The court found the remainder of the claims waived. Carmichael and Sawyer appeal.

In their opinion, Judges Ripple, Manion, and Williams affirmed in part and reversed and remanded in part. A traffic stop is reasonable, said the Court, if the police have probable cause to believe that a violation has occurred. The inquiry is an objective one and focuses on what the officer knew at the moment of the stop. Here, the tinted window and missing license plate did constitute moving violations and could have supported a stop of the vehicle. However, the uncontroverted evidence is that Officer Sharkey was not aware of either violation at the time to stop. Therefore, probable cause did not exist. For much the same reason, the Court concluded that Sharkey was not entitled to qualified immunity. The Court also found summary judgment with respect to the search of Sawyer in error. Although the defendants purported to request summary judgment on all counts, they made no mention of this search in their brief in the district court. They bear the initial burden of demonstrating that the summary judgment requirements are met -- they failed to do so. Conversely, the district court was correct in concluding that the plaintiffs waived the remainder of their federal and state law claims because of their perfunctory response to the defendants' request for summary judgment on those issues.

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SUAREZ v. TOWN OF OGDEN DUNES (September 11, 2009)

William Suarez hosted a high school graduation party on the beach behind his parents' home in Ogden Dunes, Indiana. Beer was served. Around 11:00 p.m., a local police officer happened by and noticed the activity. While warning one young man for his illegal parking, he was verbally abused by several others. Believing that the party was getting out of control, the officer left to get help. Meanwhile, Suarez ended the party, put out the bonfire and invited a small group of his friends inside to spend the night. Suarez' mother, concerned that the police may return, instructed the boys to remain upstairs. The officer returned with a bevy of squad cars. He saw that there were still several cars in the driveway, although no people were present. Suspicious that the underage drinking was continuing inside the house, the officer telephoned a local judge for a search warrant. He described the earlier scene of abuse and fairly raucous behavior. He added that there were bottles in the back yard, that a number of teenagers retreated into the house and that teenagers hiding behind couches were visible through a window of the house. He got his warrant -- they broke down the door -- they arrested Suarez and his mother. William was wrestled and pepper-sprayed during his arrest. Suarez and his mother brought this action under § 1983, alleging an unlawful search and an unlawful arrest. William also complained of excessive force. Most of the case was resolved with summary judgment in the defendants' favor. The excessive force claim against three of the officers was tried to a jury, resulting in a defense verdict. William and his mother appeal.

In their opinion, Judges Flaum, Williams and Tinder affirmed. The illegal search claim, stated the Court, depends on the existence of probable cause. Because the plaintiffs challenged the statements made by the officer to the judge, as opposed to the decision of the judge, they must show that the officer made false statements knowingly or with reckless disregard for the truth and that the statements were necessary for the determination of probable cause. The Court first considered the claim that he made false statements by implying that he actually saw the teenagers retreat into the house and by omitting the fact that almost an hour elapsed between the earlier raucous behavior and his return to the home. The Court concluded that these were not materially false statements. The officer's earlier observations combined with the fact that a number of cars were still at the house supported an inference that the party was still taking place. The Court also rejected the claim that the officer did not personally observe every fact reported to the judge. He was entitled to rely on the collective knowledge of the gathered officers. Probable cause therefore existed and the search was lawful. The existence of probable cause for the search disposes of William's unlawful arrest claim. As for his mother's, the officers had reason to believe that she was permitting minors to consume alcohol in her home, a violation of Indiana law. Her arrest, also, was lawful.

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GUZMAN v. CITY OF CHICAGO (May 13, 2009)

Sgt. Bonnstetter of the Chicago Police Department met with an ex-convict who wanted to share information regarding gang activity with the police. The informant provided valuable information and identified pictures of known gang members. He specifically advised Sergeant Bonnstetter that he was aware of the location of gang member Ruben Estrada. He told Bonnstetter that Estrada lived with his family in a single-family residence at an address on the west side of Chicago. He advised that he had seen Estrada at the residence with a handgun. He even drove by the house with an FBI agent and confirmed the location. Although there was a small sign in the front window, the agent assumed that it was a single family residence. Based on this information, Bonnstetter obtain an affidavit to search the premises and Estrada's person. When the officers arrived to execute the search warrant, they realized there was a separate door leading to a business and another door leading to a stairway to the second floor. At some point, it became clear that the building contained a first floor office, a first floor apartment, and a second floor apartment. The officers broke into the second-floor apartment and encountered Maira Guzman. With guns drawn, the officers searched the apartment -- but found nothing. Guzman brought a lawsuit against the City and several officers under 42 U.S.C § 1983, alleging that the search was unreasonable and a violation of her constitutional rights. The district court granted summary judgment to the City. Guzman appeals.

In their opinion, Judges Kanne, Rovner and Evans reversed and remanded. The Court identified the two different ways of evaluating an alleged violation of the Fourth Amendment. A court must look at both the issuance of a warrant and the execution of the warrant. Here, with respect to its issuance, the Court determined that there was sufficient indicia of reliability with respect to the informant to support probable cause. The informant provided information known to the police and identified a number of known gang members. With respect to the execution of the warrant, however, the Court disagreed with the district court. The Court specifically noted the "not uncommon" problems that arise with multiple living units. In executing the warrant in this case, the Court concluded that the officers were aware early in their search that the building was not a single-family residence, as expected and as described in the warrant. The proper course at that stage was to have called off the search. By continuing the execution of the warrant, the police violated Guzman's constitutional rights.

Judge Rovner wrote separately and concurred in the holding and reasoning. She did not join in that part of Judge Evans’ opinion in which, in dicta, he discussed Fourth Amendment rights in the context of civil actions as opposed to criminal suppression motions.

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