Willie JACOBS and Linda Siller, Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation; the estate of Sergeant Michael Garner; Officers Quintero, Buckner, McLean, Keith, and Garrido; and Metropolitan Enforcement Group Officers Huff, Martin, Sowinski, and McIntyre, Defendants-Appellees.
No. 99-2507.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 14, 2000. Decided June 1, 2000.
215 F.3d 758
We therefore affirm the district court‘s decision to deny Judge Randolph‘s motion for summary judgment based on the qualified immunity defense.
AFFIRMED.
Meera Werth (argued), Office of the Corporation Counsel, Appeals Division, Chicago, IL, for defendants-appellees.
Before FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges.
FLAUM, Circuit Judge.
Willie Jacobs and Linda Siller brought claims under
I. BACKGROUND1
Plaintiffs Willie Jacobs and Linda Siller live in Apartment # 2 at 15138 Lincoln Avenue in Harvey, Illinois. There are three apartments in the building at this address. The wall next to the door of each apartment is marked by the word “Apt.” followed by a number. Each apartment has its own separate outside entrance and its own doorbell. There are two gas meters located on the outside of the building providing service to the first and second floor apartments. The three apartments are each billed separately for electricity and telephone service. Apartment # 2 is located on the second floor and has an outside entrance at the side of the building.
On February 18, 1997, defendant Officer Quintero of the Chicago Police Department obtained a search warrant for “Troy,” a 30-year-old black male, and a single family residence at 15138 Lincoln
Later that afternoon, the Defendant Officers went to the apartment building at 15138 Lincoln Avenue. They executed the warrant on the first floor apartment, which is entered through a door at the front of the building. The owner of the building Marie Golden lived in this apartment. She informed the officers that there were two other apartments in the building, that no one named Troy lived in the building, and that she did not know anyone named Troy. Golden also told the officers that someone named Jacobs lived in the upstairs apartment and that Jacobs was ill, having recently returned from the hospital. The Defendant Officers searched Golden‘s apartment.
The Defendant Officers then went back outside the building and around to the side entrance of Apartment # 2. They broke down the door without knocking or announcing that they were police officers executing a search warrant. An officer approached plaintiff Jacobs, a sixty-year-old man, and pointed a gun at his head. The officers then asked Jacobs if he was Troy, the thirty-year-old man who was the subject of the search warrant. Jacobs responded that he was not Troy and that no one named Troy lived in the apartment. Jacobs provided the officer with identification and told the officer that he needed to sit down because he felt faint. The officer kept the gun at Jacobs’ head for over ten minutes while the other Defendant Officers began searching Jacobs’ apartment. During the search, several items of furniture and many of the plaintiffs’ personal belongings were damaged. One of the Defendant Officers claimed to have found a small amount of cocaine on a dresser in a bedroom used by Jacobs’ grandchildren. The Defendant Officers then continued to search Jacobs’ apartment for over three hours, detaining Jacobs in his home throughout the search. During this time, the Defendant Officers called in a canine unit to assist with the search, but the dog did not indicate the presence of any drugs in the apartment or on Jacobs’ person.
Jacobs alleges that he suffered severe emotional injury as a result of the Defendant Officers’ search of his apartment, their detention of him during the search, and their use of force by holding a gun to his head for several minutes. Shortly after this incident, Jacobs suffered a heart attack. Linda Siller was also an occupant of the apartment. She returned home after the search had been completed to find her property damaged. No one was arrested or prosecuted as a result of the search of the apartment building.
Jacobs and Siller filed suit under
II. DISCUSSION
The plaintiffs appeal the district court‘s dismissal of their complaint under
A. Consideration of Matters Outside of Complaint
The plaintiffs first contend that the district court erred when it considered several photographs of the apartment build-ing, submitted by the defendants and the plaintiffs, and a copy of a police report, submitted by the defendants, in ruling on the defendants’ motion to dismiss.
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in
Rule 56 , and all parties shall be givenreasonable opportunity to present all material made pertinent to such a motion by Rule 56 .
By the plain language of this rule, when the defendants submitted photographs of the apartment building and a copy of a police report and the plaintiffs submitted their own photographs in response, the district court was obligated to either not consider the extraneous submissions in ruling on the motion or to convert the motion to one for summary judgment and provide the parties with an opportunity to submit supplementary materials. See Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972). It is evident that the district court relied on the photographs as well as the report in ruling on the motion to dismiss and that it did not convert the motion to one for summary judgment. We hold that the district court‘s reliance on matters outside the complaint in ruling on the motion to dismiss was in error.
The error committed by the district court may constitute grounds for reversal. See id.; Travel All Over the World, Inc. v. Saudi Arabia, 73 F.3d 1423, 1430 (7th Cir.1996). However, rather than remand for the district court to reconsider its opinion without looking at matters outside of the compliant, our usual practice is to determine whether the error was harmless by conducting our own de novo analysis of the complaint under the
B. Qualified Immunity
State officials who occupy positions with discretionary or policymaking authority and are acting in their official capacity may have qualified immunity for claims alleging that the state officials violated the constitutional rights of a plaintiff. Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 815-16, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). These officials “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. 2727; see Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 1696, 143 L.Ed.2d 818 (1999); Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
To evaluate a claim of qualified immunity, we engage in a two-step analysis. First, we determine whether the plaintiffs’ claim states a violation of their constitutional rights. Then, we determine whether those rights were clearly established at the time the violation occurred. See Wilson, 119 S.Ct. at 1697; Khuans v. School Dist. 110, 123 F.3d 1010, 1013 (7th Cir.1997). If the rights were clearly established, the official may be liable for monetary damages and the suit proceeds to the next stage. If the rights were not clearly established, then the official is immune from suit and the claim is dismissed. See Richardson v. McKnight, 521 U.S. 399, 403, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997).
It is the plaintiffs’ burden to demonstrate that a constitutional right is clearly established. Kernats v. O‘Sullivan, 35 F.3d 1171, 1176 (7th Cir.1994). A clearly established right is one where “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson, 483 U.S. at 640, 107 S.Ct. 3034; see Wilson, 119 S.Ct. at
In this case, plaintiffs allege that the defendant Chicago police officers violated their clearly established Fourth Amendment rights. Police officers conducting a search are state officers with discretionary authority who are acting in their official capacity and may be protected by qualified immunity in suits challenging the constitutionality of their actions. See Anderson, 483 U.S. at 641, 107 S.Ct. 3034.
C. SEARCH
1. Constitutionality of Search
a. Validity of Search Warrant
Plaintiffs first argue that the search of their apartment violated their Fourth Amendment rights because it was not conducted pursuant to a valid search warrant. They allege that the warrant was invalid because it did not particularly describe the place to be searched.
A warrant is valid under the Fourth Amendment only where it is based “upon probable cause, supported by Oath or affirmation, and particularly describ[es] the place to be searched, and the persons or things to be seized.”
b. Execution of Search Warrant
Plaintiffs next argue that even if the warrant was valid when it was issued, the Defendant Officers violated their Fourth Amendment rights in the manner in which they executed that warrant.
In Maryland v. Garrison, the Supreme Court held that the search of Garrison‘s apartment was valid even though it was based on a warrant that was later discovered to be overbroad where the officers believed in good faith that the entire third floor of the building that was described in their search warrant was a single apartment and they discovered contraband in Garrison‘s apartment before becoming aware that there were in fact two apartments on the third floor. 480 U.S. at 80-81, 107 S.Ct. 1013. However, the Court also stated that
[i]f the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to [the search target‘s] apartment. Moreover, as the officers recognized, they were required to discontinue the search of respondent‘s apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant.
Id. at 86-87, 107 S.Ct. 1013. Similarly, in United States v. Higgins, we held that a search was unconstitutional where the officers executed an overbroad warrant, which failed to indicate which of three apartments located in the basement of an apartment building was to be searched, by searching all of the apartments until they found the one they were looking for. 428 F.2d at 234-35; see also Hinton, 219 F.2d at 326 (holding that the search of an entire building consisting of four apartments was unconstitutional where the officers were unable to determine which, if any, of the apartments belonged to the targets of the search).
Taking these allegations as true, it appears that reasonable officers should have discovered before entering plaintiffs’ apartment that the building at 15138 Lincoln Avenue was a multi-unit building consisting of separate apartments and that the warrant they were executing was overbroad. At the moment the Defendant Officers discovered the defect in the description of the place to be searched, they were obligated to cease that search if they could not determine which apartment was properly the subject of the warrant. The Defendant Officers concede in their brief before this Court that they did not know which apartment was occupied by Troy at the time they conducted the search. Furthermore, there is nothing in the allegations of the complaint that would have led a reasonable officer to conclude that plaintiffs’ apartment was the appropriate target of the search. Because the search of plaintiffs’ apartment occurred after it appears from the allegations in the complaint that a reasonable officer would have discovered a fatal defect in the warrant, we cannot conclude that the search was a valid execution of that warrant. See United States v. Ramirez, 112 F.3d 849, 852 (7th Cir.1997) (“[O]nce [a] mistake is discovered, the government cannot use the authority of the warrant ... to conduct a search ... that they know is unsupported by probable cause.“).
c. Warrantless Search
The Defendant Officers finally argue that even if the search was not validly conducted pursuant to a warrant, it was properly executed as a warrantless search. The Defendant Officers assert that they were faced with exigent circumstances because during drug raids such as this one there is a strong probability that evidence will be destroyed. They further argue that they had probable cause to believe that Troy, the target of the search, was occupying one of the apartments in the building, and that because they had no reason to believe that it was not plaintiffs’ apartment, they were justified in searching that apartment.
Where law enforcement officers have probable cause to believe that illegal activity is being conducted in a particular place and exigent circumstances exist, a warrantless search may be valid. See United States v. Marshall, 157 F.3d 477, 481-82 (7th Cir.1998). Exigent circumstances may include the probability that evidence will be destroyed before a
The allegations as pled in the plaintiffs’ complaint give no indication that exigent circumstances existed in this case. There are as yet no facts on the record that would support a reasonable officer‘s conclusion that evidence of a crime was in imminent danger of being destroyed inside the plaintiffs’ apartment at the time the Defendant Officers’ conducted the search.
More importantly, probable cause, as used in this context, means that the officers must have cause to believe that illegal activity is taking place in a particular location. See Butler, 71 F.3d at 248; Hinton, 219 F.2d at 325-26. The fact that officers have probable cause to believe that illegal activity may be taking place in a general area does not authorize a search of every separate dwelling within that area until the illegal activity is discovered. See Johnson, 26 F.3d at 692; Higgins, 428 F.2d at 234-35. Furthermore, the burden is on the Defendant Officers to show that they had probable cause to search plaintiffs’ apartment. It is not on plaintiffs to show that their apartment should not have been searched. See Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In this case, the allegations in the complaint reveal that the police had probable cause to believe that a man named Troy was conducting illegal activity somewhere in the building located at 15138 Lincoln Avenue. However, there is no information presented in the complaint that would support a finding of probable cause that Troy occupied Apartment # 2 or that illegal activity was occurring in that particular apartment as opposed to one of the two other apartments also located at that address. In fact, the Defendant Officers concede that at the time of the search, they were unable to determine which apartment was the source of the illegal activity they were sent to investigate. Therefore, we cannot conclude that a warrantless search of plaintiffs’ apartment was justified. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (“[A] person‘s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.“).5
Taking the allegations presented in the complaint as true, we cannot conclude that the search conducted in this case was made pursuant to a valid execution of a warrant or was a proper warrantless search. Therefore, on the current record, it appears that the search of plaintiffs’ apartment violated their Fourth Amendment rights.
2. Clearly Established Law
We now consider whether the Defendant Officers’ conduct violated clearly established law.
As discussed above, based on the allegations in the complaint, it appears that the Defendant Officers should have known before entering the plaintiffs’ apartment that 15138 Lincoln Avenue was not a single-family residence and that plaintiffs’ apartment was a dwelling unit separate from the other apartments in the building. In addition, no facts are alleged that would permit the inference that the Defendant Officers suspected plaintiffs’ apartment was controlled by Troy, the target of the search. It appears from the complaint that the Defendant Officers should have been aware that the warrant was overbroad, and there is no indication that the officers were certain that plaintiffs’ apartment was the proper subject of the search. In fact, according to the complaint, the Defendant Officers chose to execute the search warrant first on the ground floor apartment and proceeded to search plaintiffs’ apartment only after they did not find what they were looking for in the first place they chose to search. Furthermore, there does not appear to be any independent probable cause for the Defendant Officers to believe that the plaintiffs’ apartment in particular was the location of illegal activity.
From the facts pled in the complaint, we cannot conclude that the Defendant Officers in this case did not conduct a fishing expedition strikingly similar to the one we declared unconstitutional in Higgins. 428 F.2d at 234-35 (concluding that the search was unconstitutional where “[i]t [was] evident that the officers could not determine from the warrant which apartment was to be searched and that they made that determination by searching all apartments until they discovered the one they were looking for“); see also Johnson, 26 F.3d at 692 (stating that a search is unconstitutional where “the officer was in effect playing a ‘shell game’ searching for the one apartment out of four where the illegal activity was occurring“). At the time the Defendant Officers conducted the search in this case, they were on notice from Supreme Court precedent, as well as from this Court‘s caselaw, that the type of random search of the apartments in a multi-unit building alleged here violates the Fourth Amendment. Therefore, we hold that, under the facts as alleged in the complaint, the Defendant Officers do not have qualified immunity from the plaintiffs’ claims.
D. SEIZURE
Plaintiff Jacobs next argues that the Defendant Officers violated his clearly established Fourth Amendment rights when
A person who is not free to leave his home while officers are conducting a search is “seized” for Fourth Amendment purposes. Michigan v. Summers, 452 U.S. 692, 696, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). An official seizure is ordinarily unreasonable unless it is supported by probable cause, even where no formal arrest is made. See id.; Dunaway v. New York, 442 U.S. 200, 212-13, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). However, “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Summers, 452 U.S. at 705, 101 S.Ct. 2587; see also United States v. Pace, 898 F.2d 1218, 1239 (7th Cir.1990). This is because there is a substantial law enforcement interest in preventing the flight of a suspect in the event that incriminating evidence is found, in protecting the safety of the officers, and in the orderly completion of the search which is facilitated by the presence of the suspects. Summers, 452 U.S. at 703, 101 S.Ct. 2587. Furthermore, “the detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.” Id.
However, where a search is illegal and not supported by probable cause, the justification for using the search as the foundation for the seizure disappears because it was the connection of the individual with a location suspected of harboring criminal activity that provided the reasonable basis for the seizure. See Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (construing Summers as holding that “the [search] warrant made the occupant sufficiently suspect to justify his temporary seizure“). When there is no longer probable cause to believe criminal activity is taking place at the location where an individual is found, the mere presence of the individual in that place is no justification for seizing that individual. In that circumstance, the foundation for seizing the individual must come from an independent probable cause determination that the individual is involved in illegal activity. See id. (“In the name of investigating a person who is no more than suspected of criminal activity, the police may not ... seek to verify their suspicions by means that approach the conditions of arrest.“); Dunaway, 442 U.S. at 216, 99 S.Ct. 2248 (holding that the police may not seize an individual without probable cause in order to “embark[] upon [an] expedition for evidence in the hope that something might turn up“) (quotation omitted).
As discussed above, on the facts alleged in the complaint, the search of the plaintiffs’ home appears to be illegal and without probable cause. In addition, taking the allegations pled as true, the Defendant Officers in this case did not appear to have probable cause to believe that Jacobs was engaged in any illegal activity. The Defendant Officers were looking for a thirty-year-old man named Troy. Even if the officers had been justified in briefly detaining the-sixty-year-old Jacobs to ascertain if he were Troy, the manner in which the seizure is alleged to have been conducted, by breaking down the door to Jacobs’ home and holding a gun to his head, and the three-hour duration of the seizure, do not appear on the facts presently alleged to be reasonable efforts to obtain this information. See Royer, 460 U.S. at 500, 103 S.Ct. 1319 (“The scope of the detention must be carefully tailored to its underlying justification.“). Therefore, considering only the allegations in the complaint, we cannot conclude that the seizure and detention of Jacobs during the three hour search was reasonable and not in violation of his Fourth Amendment rights.6
E. Use of Force
Plaintiff Jacobs also asserts that the Defendant Officers violated his Fourth Amendment rights when one of the officers placed a gun to Jacobs’ head for over ten minutes during the initial period of the search of his apartment.
While “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it,” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Fourth Amendment prohibits the use of excessive force during the execution of a seizure, id. at 395, 109 S.Ct. 1865 (holding that the Fourth Amendment‘s objective reasonableness test is the appropriate standard for evaluating excessive force claims). In order to decide whether the amount of force used during a seizure is “excessive,” we examine the totality of the circumstances to determine whether the intrusion on the citizen‘s Fourth Amendment interests was justified by the countervailing government interests at stake. See Lanigan v. Village of E. Hazel Crest, 110 F.3d 467, 475 (7th Cir.1997). The Fourth Amendment test is an objective one, where the officer‘s subjective good or bad intentions do not enter into the analysis. See Graham, 490 U.S. at 397, 109 S.Ct. 1865. Instead, we consider factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865. We also consider whether the citizen was under arrest or suspected of committing a crime, was armed, or was interfering or attempting to interfere with the officer‘s execution of his or her duties. See McDonald v. Haskins, 966 F.2d 292, 292-93 (7th Cir.1992). In the end, the excessive force inquiry “looks to whether the force used to seize the suspect was excessive in relation to the danger he posed—to the community or to the arresting officers—if left unattended.” Id. at 294 (citing Wilkins v. May, 872 F.2d 190, 193 (7th Cir.1989)).
According to the allegations pled in the complaint, plaintiff Jacobs was sitting at home alone in his apartment behind a locked door when one of the Defendant Officers broke down his door, entered his apartment without warning and pointed a gun at Jacobs’ head. The officer kept the gun pointed at Jacobs for over ten minutes, even after ascertaining that Jacobs was not the person he was looking for, and during which time Jacobs did nothing more threatening than provide the officer with his identification and ask the officer for permission to sit down. As discussed above, at the time the Defendant Officers entered Jacobs’ apartment, they do not appear to have had probable cause to suspect Jacobs had committed any crime or to believe that any criminal activity was being conducted in Jacobs’ apartment. Taking these facts as true, it appears that the Defendant Officers’ use of force against Jacobs while executing an allegedly illegal search of his home and an allegedly unlawful seizure of his person was out of proportion to any danger that Jacobs could possibly have posed to the officers or any other member of the community. We, therefore, cannot conclude that, considering only the allegations pled in the complaint, the Defendant Officers’ use of force did not violate Jacobs’ Fourth Amendment rights.
III. CONCLUSION
For the reasons stated herein, we REVERSE the district court‘s dismissal of plaintiffs’ claims and REMAND this case for further proceedings consistent with this opinion.
EASTERBROOK, Circuit Judge, concurring in part and concurring in the judgment.
I join the judgment and all of the opinion other than the portions suggesting that a complaint may be dismissed under
In Gomez the Supreme Court distinguished immunity from failure to state a claim on which relief may be granted. “By
It is not possible to exclude use of
None of this is to deny what many cases have stressed: claims of immunity often justify dismissing a complaint in advance of discovery. But Crawford-El describes how this process should work. 523 U.S. at 598-99, 118 S.Ct. 1584. First is an answer followed by a response under
Nothing turns on the choice among
Notes
The Supreme Court has recognized the tension in this area but has declined to address this issue. See Leatherman, 507 U.S. at 166, 113 S.Ct. 1160. But see Behrens v. Pelletier, 516 U.S. 299, 306-309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (holding that “an order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a ‘final’ judgment subject to immediate appeal“) (emphasis added); Mitchell, 472 U.S. at 527, 105 S.Ct. 2806 (holding that the “denial of a defendant‘s motion for dismissal or summary judgment on the ground of qualified immunity” is an appealable decision) (emphasis added). Similarly, we need not address this issue at this time. We merely note that it appears that in some cases, a complaint may be dismissed under