Case Information
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Before P OSNER F LAUM H AMILTON Circuit Judges . F LAUM Circuit Judge . Jаmes arrested obstructing peace officer. Two deputy sheriffs came White’s looking live girlfriend, Nancy Hille, suspicion she stolen license plate registration sticker. refused let tried slam door, which point one jammed her foot entered house. took the ground. The deputies claim that entry was justified because they smelled when they were outside the door. White sued for false arrest, and the existed. It also denied dep uties’ defense, finding waived. took interlocutory appeal, and we reverse.
I. Background Winnebago County Sheriff’s Deputy Tammie Stanley was on patrol during early morning hours when she pulled over Nancy Hille expired vehi cle registration sticker. She ran Hille’s license plates, and discovered Secretary State’s record plate’s expiration date was different than date on expired sticker. Stanley asked dispatch to contact Secretary State’s office. lateness hour, Stanley was unable to resolve date discrepancy at stop and let Hille go.
Stanley returned to duty afternoon. Secretary State’s office gotten back to her, she learned sticker Hille’s car stolen. Possession stolen stick er class felony Illinois. Stanley proceeded immedi ately Hille’s registered address Machesney Park ar rest her offense, arranging fellow Sheriff’s Deputy Thomas Morrison meet her at house assist.
When arrived knocked door, answered Hille but by plаintiff, James White. Hille’s boyfriend time, he owned lived house. told wanted come inside speak Hille, but refused allow entry warrant.
Deputies Stanley and Morrison claim smelled marijuana сoming from inside the house while spoke with White front door. Indeed, Hille smoking marijuana just before arrived. She was eventually house half burned joint. At some point during their discussion, White attemрted close door on deputies and then retreated into split level house and up stairs. Stanley blocked closing, and deputies came into house just be hind White and taсkled him on stairs. Morrison forced White’s arm behind back and told White stop resist ing. White denies resisting and says he told Morrison Morrison hurting arm. White claims suf fered shoulder injury during incident.
The deputies arrеsted White for resisting obstructing peace officer. The charge later dismissed. then brought § suit against Stanley and Morrison for false arrest excessive force.
After discovery, mоved summary judg ment false arrest claim. They claimed marijuana provided justifying entry order destruction evidence. Barring that, argued not es tablished alone could not give 2131 rise exigеncy, which would entitle qualified immunity. See Pearson v. Callahan 223, (2009).
The district court denied motion. The court found that there exigency, and that deputies had waived defense qualified immunity. The deputies had included defеnse in both their answer and their memo randum in support summary judgment, and White had argued against response memo. Yet district court qualified immunity argument undeveloped therefore waived because, court’s view, deputies nothing more than recite boilerplate requirements defense. added even if argument had waived, would been entitled qualified immunity violatеd estab lished right. took interlocutory appeal.
II. Discussion
Our review finding waiver its denial qualified immunity de novo. See, e.g. e360 sight v. Spamhaus Project F.3d 594, (7th Cir. 2010); Levan George F.3d (7th Cir. 2010). incorrect conclude dep uties waived their defense. Indeed, conсedes brief appeal, agreeing raised issue, noting their arguments were sufficient induce response from dis trict court. We enforce waiver part prejudice opposing party, obvious suf fer prejudice allowing defense here. See Hernandez Cook Cnty. Sheriff’s Office F.3d 913–14 (7th Cir. 2011). He notice deputies’ swer they planned to assert qualified immunity. And when raised deputies’ summary judgment memorandum, responded brief. Waiver therefore inappropriate.
On merits deputies’ claims qualified immun ity, their susceptibility to suit hinges propriety their home entry. If had right to enter house, then Whitе’s slamming door them obviously support an arrest obstruction a peace officer. If, however, did have a right to enter home, then White’s slamming least arguably supplied with prоbable cause to arrest.
Typically, Fourth Amendment requires to probable cause a warrant enter a home. Payton New York U.S. (1980). warrant, but argue smell outside presented exigency—an exception war rant requirement. Police authority a without render emergency assistance, pursue fleeing felon, destruction evidence. Ken tucky King S. Ct. (2011).
As all cases conсerning immunity, we must determine whether there (1) violation (2) constitutional right. Pearson initially asked question—whether outside provided exi gency—and answered negative. We agree with court’s conclusion marijua na, more, provide permitting these make warrantless entry. we disagree answer second question: contrary what it found, it at the of the inci dent that burning justify warrantless en try.
Wе are guided to our conclusion the first prong the Supreme Court’s decisions Johnson United States U.S. (1948), Welsh Wisconsin U.S. (1984). Johnson federal narcotics officers approached a hotel room a tip smelled odors of opium outside. U.S. at 12. Though officers had warrant, one ficers demanded suspect open her so that could search her room, which she did. Supreme Court concluded should obtained a warrant, because mere opium outside a hotel room insufficient excuse requirement, despite fact opium odors dissipate. Id. Court’s holding police warrant requirement Johnson suggests is here, either.
Welsh instructive different reasons. A suspect arrested drunk driving after his aban doned car near entered home without warrant administer test blood alcohol level. 742–43. At time, Wisconsin deemed minor offеnse drive under influence. state claimed destruc tion evidence—i.e., dissipation suspect’s blood alcohol level. Supreme Court rebuffed argument counseled suspicion minor offenses should give rise exigencies only rarest circumstances, state’s interest gathering evidence minor offense ‐ generally not strong enough overcome wеighty inter ‐ est in home sanctity. Id. 753. possession a small amount of marijuana is far rare case. In all states this circuit, mere
possession is only misdemeanor. See ILCS 550/4; Wis. Stat. § 961.41(3g)(b); Ind. Code § ‐ fact, Illi ‐ nois, possession will soon no longer bе per se illegal under state law, as Illinois has begun implementing regulations permit use medical marijuana for qualifying individu ‐ als. See Medical Cannabis Pilot Program I LLINOIS . GOV http://www2.illinois.gov/gov/mcpp/Pages/default.aspx (vis ited 2014). Thus, once this regulatory scheme is place, will not necessarily be indicative any wrongdoing under Illinois law. upshot all is police who simply generally face exigency must get warrаnt home. lack exigency does
not end inquiry case, for still prevail if they violated violation.
On second prong stated: “it is estab lished beyond need for citation private сitizen may re fuse entrance into or oth er justifying circumstances arresting individual whom officers lacked probable cause unconstitution al.” True. However, critical inquiry. dis trict аpproach would undermine effectiveness defense anytime en ter questionable exigency. If fact existed, liability illegal search, illegal entry, illegal arrest always follow.
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Anderson v. Creighton
, 483 635 (1987), Supreme Court cautioned against defining relevant constitutional in qualified immunity analysis too generally, be cause doing so “convert rule of qualified immuni ty … into rule virtually unqualified liability simply alleging violation extremely abstract rights.”
Id.
After all, it is obvious—as said—that searching or arresting anybody after an unjustified en try violates established constitutional rights. this glosses over tough question facing officer: “Do I have justification in first place?” Qualified immunity supposed protect close case, it there fore must apply officer’s snap judgment legally hazy area.
Cf. Stanton v. Sims
, S. Ct. 3, 7 (2013) (
per curi am
) (finding officer entitled chasing fleeing misdemeanant onto curtilage split case law on propriety doing so). necessary inquiry case whether clear ly established 9, marijuana, standing alone, exigency. During discussion whether or exigency, noted “courts who addressed [the issue] have answered question varied conflicting ways, there dоes appear be universal, even majority, approach question.” right—federal state courts all over map issue.
Compare United States v. McMillion
F. App’x 138, (3d Cir. 2012) (smell provided exigency);
United States v. Grissett
F.2d 776, (4th Cir. 1991) (same);
State v. Ro driguez
A.2d 678–79 (N.H. 2008) (same);
Rideout State
P.3d (Wy. 2005) (same);
Mendez People
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Future officers faced situation like one confronting Stanley Morrison should feel embold ened act as here. Henceforth, who make warrantless entry under circumstances case should expect shelter liability.
R EVERSED .
Notes
[1] also arrested Hille, both possession improper display registration sticker.
[2] excessive force claim remains pending part appeal. also brought claim pursuant Article I, § Illinois Constitution. granted summary judgment against claim he does appeal.