Carter v. City of Milwaukee & Keith Eccher

• Decision Date: 19 February 2014
• Docket Number: No. 13–2187.,13–2187.
• Citation: 743 F.3d 540
• Parties: Montell CARTER, Michael Lopez, and Milwaukee Police Association, Plaintiffs–Appellants, v. CITY OF MILWAUKEE and Keith Eccher, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

743 F.3d 540

Montell CARTER, Michael Lopez, and Milwaukee Police Association, Plaintiffs–Appellants,

v.CITY OF MILWAUKEE and Keith Eccher, Defendants–Appellees.

No. 13–2187.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 8, 2013.

Decided Feb. 19, 2014.

Brendan P. Matthews, Cermele & Associates, Milwaukee, WI, for Plaintiff–Appellant.

Jan A. Smokowicz, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendant–Appellee.

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

While police officers were executing a search warrant in a Milwaukee apartment, the apartment's resident accused the police of taking around $1750 of his cash. The commanding officer then ordered all officers to remain on the scene while they awaited further direction. This order did not come at a good time for Officer Montell Carter, who had taken a colon cleansing product outside the apartment and now needed to use the restroom, badly. Not wanting to use the apartment's bathroom, Carter told then-Lieutenant Keith Eccher he needed to leave to use the restroom. The lieutenant put his hand up and responded that he needed to search Carter first. The lieutenant then patted Carter down and searched his jacket, boots, and the items he was carrying. The dramatic ending to these events is, in fact, not dramatic at all. The lieutenant did not find the allegedly missing cash or any contraband on Carter, and Carter returned to the police station and used the restroom there. Carter filed this lawsuit maintaining he was the subject of an unconstitutional seizure and search. Because no reasonable officer in Carter's position would have feared arrest or detention if he did not comply with the search request, we conclude he was not seized. As a result, we affirm the district court's grant of summary judgment in the defendants' favor.

I. BACKGROUND

When he was called to the scene of a search warrant execution the afternoon of February 26, 2009, Montell Carter had been a police officer with the Milwaukee Police Department for nearly thirteen years. On that day, Officer Carter and other officers were stationed outside a residence while Tactical Enforcement Unit team members went inside to ensure there was no threat to the officers who would perform the search. Carter was outside for about twenty to thirty minutes before the tactical unit announced that all was clear.

Officer Carter had been taking Colonix, a nonprescription supplement to clean his colon, for about two weeks in an effort to lose weight. He did not, however, take the supplement at his normal time before leaving home for his shift that day because he had been running late. Thinking he would not be needed in the residence right away, Carter returned to his squad car after the tactical unit gave the all clear, mixed the Colonix with water, and drank it. He did so knowing that taking Colonix made him need to more frequently use the restroom.

Officer Carter and other officers entered the residence dressed in police uniform to search for drugs and currency. Tactical enforcement officers were still leaving the residence while the officers entered. Carter and his partner, Officer Michael Lopez, helped search the northwest bedroom. At some point, the apartment's resident, Mr. Mitchell (his first name is not clear from the record), told Officer Jose Viera that $1750 or $1800 in cash was missing from his bedroom. Mitchell said he had been sitting in his bedroom counting his money when the “guys with helmets” entered. Mitchell said he then threw the money on the floor next to him.

Following Mitchell's allegation, Officer Viera contacted a supervisor by telephone, who told Viera to “freeze everything” until representatives from the Police Department's Professional Performance Division (“PPD”) or other supervisors arrived. As a result, the officers on the scene were informed they were not free to leave.

About thirty to forty-five minutes later, a sergeant arrived. Lieutenant Keith Eccher, who had run the command post at the scene but left after the tactical squad secured the residence, also returned to the apartment. Eccher was the highest ranking officer at the site. A sergeant informed Eccher of the resident's allegation and told him there was an opportunity for all the tactical squad or search team members to have taken the money. Eccher contacted the PPD, and he informed the officers on site that PPD was on its way.

Feeling the effects of the supplement he had taken and sweating profusely, Officer Carter approached Lieutenant Eccher in the kitchen of the residence and told him he needed to leave as he needed to use the bathroom very badly. Carter maintains he did not want to use the bathroom in the residence because of its very dirty condition. He also asserts that even in a clean house, he would not feel comfortable using someone else's restroom. (The parties do not point to any Department policy on point.)

Lieutenant Eccher put his hand up, with his palm straight out, and said in a firm voice to Officer Carter, “You can't leave until I search you.” Eccher did not come into any contact with Carter when he put his hand up. Eccher directed Carter to take off his police coat, outer vest carrier, and duty belt, which held his firearm. Eccher patted down Carter; in doing so, he did not pat down Carter's genital area but did pat down his back pockets. Eccher searched Carter's jacket, including its pockets, looked in Carter's wallet and police memo book, and searched his duty belt. Eccher also had Carter remove his boots and searched those.

Lieutenant Eccher did not take Officer Carter's badge or police identification. Nothing out of the ordinary was found on Carter, and his duty belt and firearm were returned to him. Officer Lopez told Eccher he wished to leave also, and Eccher responded, “Well, I gotta search you, too.” Lopez told Eccher that he was not going to take his boots off, and Eccher did not make him do so. Eccher then patted down Lopez, finding nothing. The searches took place inside the kitchen, where Eccher, a sergeant, Carter, and Lopezwere present at the time. Apartment residents could see the search as well, with Eccher explaining the search took place in plain view in front of the residents to remove any suspicion.

With no protocol specific to searching officers in an officer-involved allegation, Lieutenant Eccher explained that he searched Officers Carter and Lopez after they asked to leave the scene because they had “means and access to the missing money,” stated they needed to leave to go to the bathroom as soon as they learned that PPD Criminal was coming, and to remove them from suspicion. After they were searched, Carter and Lopez left the residence together and returned to the district police station, where Carter used the restroom. Later, after PPD Criminal arrived, another officer, Officer Rachel Goldbeck, was allowed to leave the scene to use the restroom without being searched.

Officers Carter and Lopez filed a lawsuit pursuant to 42 U.S.C. § 1983 alleging that Eccher and the City of Milwaukee violated the Fourth Amendment by illegally seizing and searching them. The district court granted the defendants' motion for summary judgment.

II. ANALYSIS

Officer Carter contends he was the subject of an unconstitutional seizure and search. He maintains that he was seized when Lieutenant Eccher held his hand out and told him that he had to be searched if he wished to leave the premises. We review the district court's grant of summary judgment de novo, viewing evidence in the record in the light most favorable to the non-moving party, plaintiff Officer Carter, and giving him the benefit of all reasonable inferences. See Swetlik v. Crawford, 738 F.3d 818, 821 (7th Cir.2013).

The Constitution forbids not all searches and seizures, but only “unreasonable searches and seizures.” U.S. Const. amend. IV; Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A “seizure” within the meaning of the Fourth Amendment occurs when a person's “freedom of movement is restrained” either “by means of physical force or show of authority.” United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). “If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.” United States v. Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). In considering whether there was a seizure, we “consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

It is true that the Fourth Amendment protects police officers, not just ordinary citizens. Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). “This does not mean, however, that every order a police officer feels compelled to obey amounts to a seizure.” Gwynn v. City of Phila., 719 F.3d 295, 300 (3d Cir.2013). Nothing in the Fourth Amendment gives public employees, including police officers, greater workplace rights than private sector employees. Driebel v. City of Milwaukee, 298 F.3d 622, 637 (7th Cir.2002). As in the private sector, public employees must often comply with their supervisors' orders and can suffer consequences at work for failure to comply. Id. at 639. The requirement of complying with supervisors' directives has particular meaning for police officers, who are part of a “paramilitary organization that must maintain the highest degree of discipline, confidentiality, efficiency, and [esprit] de corps among its officers, who are the first line of defense against lawlessness,” and who agree to obey lawful orders from higher-ranking officers. Id. at 638–39.

In this spirit, we have distinguished “between a police department's...