Cook v. O'Neill

• Decision Date: 23 September 2015
• Docket Number: No. 14–1641.,14–1641.
• Citation: 803 F.3d 296
• Parties: Terez COOK, Plaintiff–Appellant, v. Anthony O'NEILL and Todd Baldwin, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

803 F.3d 296

Terez COOK, Plaintiff–Appellant

v.Anthony O'NEILL and Todd Baldwin, Defendants–Appellees.

No. 14–1641.

United States Court of Appeals, Seventh Circuit.

Argued Aug. 4, 2015.

Decided Sept. 23, 2015.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 12, 2015.

Barack S. Echols, Kirkland & Ellis LLP, Chicago, IL, for Plaintiff–Appellant.

Martin James Devries, Attorney, Sager & Colowin, Fond Du Lac, WI, for Defendants–Appellees.

Before POSNER, KANNE, and HAMILTON, Circuit Judges.

Opinion

POSNER, Circuit Judge.

The plaintiff, a prison inmate, filed suit under 42 U.S.C. § 1983 against two Marinette County (Wisconsin) Sheriff's Department detectives, accusing them of having arrested him in violation of his Fourth Amendment rights. He seeks $25,000 in compensatory and $50,000 in punitive damages for the arrest and accompanying detention, seizure of personal property that he claims was worth $10,000, and infliction of emotional distress.

He had committed an ugly home robbery in 2005 and been arrested nine days later in the apartment of a girlfriend, later his fiancée, Stacy Thede. Convicted in a Wisconsin state court of armed robbery, armed burglary, battery, theft of moveable property, mistreatment of an animal resulting in the animal's (a dog's) death, and false imprisonment, he was sentenced to 40 years in prison to be followed by 18 years of extended supervision.

In the present case, the civil case, the defendant officers moved for summary judgment on the ground that Thede had consented to their entry into the apartment, where they had discovered and arrested Cook. When asked at Cook's criminal trial whether she'd “let them [the officers] in,” Thede had testified “Yes,” but in the civil case she submitted an affidavit which states that when she had testified that she “let them in” she had meant that she “did not tell them to leave or did not object directly to them, but let them remain.” The district court granted summary judgment for the officers on the basis of their defense of consent, rejecting Thede's affidavit as inconsistent with her testimony at the criminal trial.

The two detectives from Marinette County, accompanied by two officers from the Sheboygan City Police Department who are not defendants in Cook's suit, had arrived at Thede's apartment house at about 11:00 a.m. on May 31, 2005. The apartment house was in Sheboygan, though the robbery had occurred in Peshtigo, in Marinette County in northeastern Wisconsin, more than 150 miles from Sheboygan. That's why the detectives were from Marinette County but the other officers were from Sheboygan—they would be familiar with the city and provide security for the detectives.

The detectives wanted to talk to Thede because they'd discovered that Cook's robbery accomplice had been carrying a cellphone when he was arrested and a search of the cellphone had revealed calls to a phone registered to Thede. According to their affidavits, the detectives thought the cellphone might have been used by the other suspect (who turned out to be Cook) on the night of the robbery. At the time, the detectives did not know that suspect's legal name but knew that he went by “BN” (short for “Bad News”) and by “Rex,” since a witness had reported obtaining gloves and duct tape for “BN” (also known as “Rex”) and driving with him to and from the robbery site.

The detectives buzzed for Thede at the building entrance. In response, without asking who they were, she pushed the button in her apartment that enabled entry to the building and met them in the hallway outside the apartment. Explaining that they needed to ask her some questions, they asked her whether there was anyone in the apartment. According to Thede and some contemporary police reports (including the report of one of the two Marinette detectives), she said yes, “a friend.” According to the other detective, and to a later affidavit by the detective whose initial report had said that Thede had not named her friend, she had told them that “News” was in the apartment.

Thede asked the detectives in the hall whether she could reenter her apartment and change out of her pajamas before talking further with them. They said she could. She reentered, and either closed the door to the apartment or left it ajar. The officers opened the door (or if it was already slightly open, opened it further) in order to be able to see into the apartment. They heard her talking to someone in another room, and while standing in the doorway without as yet having entered the apartment they yelled that she should bring the person she was talking to (who was Cook, with whom she was talking in a bedroom) into the living room where the officers could see him. When he appeared, they recognized him as the robbery suspect. They then entered the apartment. Within minutes the Sheboygan police officers arrested him after a warrant check revealed an outstanding arrest warrant against him for violating parole.

The district court refused to consider Thede's affidavit, which we mentioned earlier, as evidence in this case on the ground that it was a “sham.” A “sham affidavit” is an affidavit that is inadmissible because it contradicts the affiant's previous testimony (here, testimony Thede had given in the criminal prosecution of Cook) unless the earlier testimony was ambiguous, confusing, or the result of a memory lapse. Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 759 (7th Cir.2006) ; Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1168–71 (7th Cir.1996). Thede's affidavit was amplification rather than contradiction, and so was not within the “sham” exclusionary rule. But the affidavit doesn't help Cook's case. It acknowledges that Thede agreed to speak with the officers, and although it says that she agreed to speak with them in the hallway it must have been obvious to her that the conversation was more likely to take place in the apartment than in the hallway outside it. What reason would she have to talk to four police officers in a public corridor—except to conceal Cook? But whether she consented to talk to them only in the hallway is irrelevant, because no conversation took place; it would have been about Cook's whereabouts, which the officers discovered the moment they saw him. Thede's affidavit was therefore inadmissible, though not because it was a sham affidavit but because it was irrelevant.

The officers' decision to hold open the door to the apartment so that they could see into the living room while Thede was getting dressed elsewhere in the apartment was simple prudence and thus within the scope of the “exigent circumstances” (i.e., emergency) exception to the requirement of a warrant. See, e.g., Kentucky v. King, 563 U.S. 452, 131 S.Ct. 1849, 1856–63, 179 L.Ed.2d 865 (2011). Even if she didn't identify the “friend” in the apartment as “News” (a question on which the evidence is in conflict), given the connection, evidenced by cellphone records, between her and Cook's accomplice, the “friend” in the apartment could well be “BN” (that is, Cook)—a violent, dangerous criminal, who might well be (though it turned out that he wasn't) armed and dangerous. Had the officers waited for Thede to get dressed and open the door to the apartment they might have found themselves six inches from the barrel of a gun. As in protective-sweep cases, the officers were justified in taking reasonable precautions to minimize the danger to themselves. Maryland v. Buie, 494 U.S. 325, 333–35, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Had they out of an abundance of caution instead removed themselves from potential danger, the suspect might have escaped. Compare Minnesota v. Olson, 495 U.S. 91, 100–01, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).

We thus needn't decide whether, as the district court found, Thede consented to the officers' entry into her apartment. Their opening the door (without entering) was prudent given the potential danger that the “friend” might pose. Once they saw him, they knew he was the suspect in the robbery that they were investigating, and it would be absurd to think that they should have turned and left and applied for a search warrant. Think of what might have ensued had they been required to run off to get a search warrant before they could lawfully enter the apartment and arrest Cook. As soon as they left to get the warrant he would have split. True, some of the four officers might have remained in the hallway (while the others went to get a search warrant) and followed Cook as he fled. But he might have shaken off the tail, and still be at large today. Once he had left the apartment and they recognized him as the robbery suspect, they would have had probable cause to arrest him (or at the least to stop him long enough to do a warrant check), and they could have done this without a search warrant because the hallway was a public space. But he might not have remained there. He might have outrun them. Moreover, Thede's apartment was on the second floor; Cook could have jumped out of a back window and fled without being seen by any of the officers.

Cook's lawyer makes much of the fact that when the police saw Cook, Thede became upset and the police pulled her into the hallway to prevent her from interfering with their conversation with Cook. We can't see the relevance of this contretemps; Thede is not the plaintiff.

Now suppose Thede and Cook had been co-owners or co-occupants of the apartment and one or both of them had objected to entry by the police, and in addition that there had been no emergency justifying entry. Would that have changed the outcome of this case? No. The warrant to arrest Cook for violating parole is the key to this conclusion. The Supreme Court said in Payton v. New York, 445 U.S. 573, 602–03, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), “that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate's determination of probable...