Reardon v. Wroan

• Decision Date: 29 January 1987
• Docket Number: No. 86-2141,86-2141
• Citation: 811 F.2d 1025
• Parties: Charles REARDON and Gregory Heinzel, Plaintiffs-Appellants, v. Gary WROAN, Ralph Ebert and Steve Ploense, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1025

811 F.2d 1025

Charles REARDON and Gregory Heinzel, Plaintiffs-Appellants, v. Gary WROAN, Ralph Ebert and Steve Ploense, Defendants-Appellees.

No. 86-2141.

United States Court of Appeals Seventh Circuit.

Argued Dec. 16, 1986.

Decided Jan. 29, 1987.

George F. Taseff, London, Greenberg & Pleban, St. Louis, Mo., for plaintiffs-appellants.

Patrick J. Londrigan, Heyl, Royster, Voelker & Allen, Springfield, Ill., for defendants-appellees.

Before BAUER, Chief Judge, CUMMINGS and EASTERBROOK, Circuit Judges.

PER CURIAM.

Appellants, Charles Reardon and Gregory Heinzel, challenge the grant of summary judgment denying them relief under 42 U.S.C. Sec. 1983 for the warrantless entry of their residence. For the reasons stated below, we reverse in part and remand.

I

About 6:45 p.m. on December 18, 1983, defendant officers Gary Wroan, Ralph Ebert and Steve Ploense of the Normal, Illinois police force received a radio report of a burglary in progress at 608 Broadway in Normal. They knew that the address was of an Illinois State University fraternity house and that the university students were on Christmas break. ¹ Meanwhile, plaintiffs Charles Reardon and Gregory Heinzel, who were residents of the fraternity (Delta Chi Fraternity), were in the house watching television in Heinzel's room located at the northeast end of the basement. According to defendants' affidavits, when they arrived on the scene--each arriving separately, first Ebert, then Wroan, and then Ploense--they found a late model Chevrolet backed up to the rear door of the residence. When Officer Wroan arrived he ran a license plate check on the car. At his deposition he stated he did not recall whether he received the results of the check. He also inspected the building for signs of a burglary, such as broken windows, and found none. The officers also stated that when they arrived, the rear door to the house was open and the building was completely dark, which they believed was inappropriate given the hour. It is not disputed that the campus residences are typically vacant during Christmas break, that the students tend to leave valuable items in their rooms during the recess, including televisions and stereo equipment, and that as a result, burglaries often occur on campus during this time of year.

On these facts, defendants, communicating by radio, decided to cover the three doors to the residence. Officer Wroan covered the rear door, located at the northern end of the house. Ebert was at the front door, located at the west end of the house, and Ploense covered the south door. There was no exit from the eastern side of the house. Wroan then entered the residence. Reardon and Heinzel headed up the stairs from the basement to investigate the noise at the rear door and they were met there by Wroan with his pistol drawn. He ordered them to halt and to stand facing the wall with their hands up. He radioed Ebert and Ploense for assistance, who thereupon entered through the north door. Reardon and Heinzel were then handcuffed and detained. They explained that they lived in the fraternity house and proved their residency about ten to fifteen minutes later when the officers matched plaintiffs' identification with their names on the mailboxes located upstairs in the fraternity house. At that point they were released.

Plaintiffs dispute several facts set forth in defendants' affidavits. They point to Heinzel's affidavit which states that all of the doors to the residence, including the door to the rear of the house, were securely closed because of the cold weather. Heinzel also claims that several lights were on in the house, including the Christmas tree lights in the front window, and that Reardon's car was normally parked in a lot adjacent to the northeast side of the building, not pulled up backwards to the rear door. Next, to support their version of the facts, plaintiffs point to the following inconsistencies between statements the officers made during their depositions and the facts presented in their affidavits. At his deposition Wroan did not recall whether, in fact, Reardon's car was backed up or parked facing forward when he arrived on the scene. And plaintiffs question Officer Ebert's ability to determine whether the rear north door was open or closed when he arrived on the scene by noting that he testified that Wroan had already entered the north door by the time Ebert arrived to assist. It is not clear that Ebert inspected the north door prior to that time. Ebert also stated that Reardon's car was parked ten to fifteen feet from the north door, which is arguably inconsistent with the affidavit statements that the car was pulled up to the door. In addition, the plaintiffs point to Ploense's statement that he found a light on in the building when he escorted them to the mailroom to locate their mailboxes, implying that the light was on when the police arrived at the house.

II Standard of Review

The grant of summary judgment is reviewed to determine if there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). However, a factual dispute does not preclude summary judgment unless the disputed fact is outcome determinative according to the governing law. Shlay v. Montgomery, 802 F.2d 918, 920 (7th Cir.1986) [quoting Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.) (en banc), certiorari denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983) ]. The reviewing court must view the entire record and all reasonable inferences drawn from the record in the light most favorable to the nonmoving party. Id.; Valentine v. Joliet Township High School District, 802 F.2d 981, 986 (7th Cir.1986). Once the moving party has demonstrated the absence of a genuine issue of material fact, the opposing party cannot rest on general allegations or denials in his pleadings, but rather must show through affidavits or other material that a specific factual issue exists. Id. As the Supreme Court recently stated: "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finding of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

Finally, it should be noted that courts are generally hesitant to grant summary judgment in Sec. 1983 actions which raise the issue of probable cause. See, e.g., Llaguno v. Mingley, 763 F.2d 1560, 1565 (7th Cir.1985) (en banc); Losch v. Borough of Parkesburg, 736 F.2d 903, 909 (3rd Cir.1984). As this Court explained in Llaguno:

[w]here the issue arises in a damage suit, it is, as the panel opinion acknowledged, a proper issue for the jury if there is room for a difference of opinion. The underlying issue in deciding whether the police had probable cause to do what they did is reasonableness, which is also the underlying issue in deciding negligence--a classic jury issue.

763 F.2d at 1565 (citations omitted); Moore v. The Marketplace Restaurant, Inc., 754 F.2d 1336, 1347 (7th Cir.1985); but see Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 438-39 (7th Cir.1986).

Probable Cause/Exigent Circumstances

The Supreme Court in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), set forth the standard governing warrantless entries into a person's home. ² As the Court recently reiterated, the chief protection of the Fourth Amendment is directed toward the privacy of the home and as a result a warrantless entry of one's home is considered "presumptively unreasonable." Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984) (quoting Payton, 445 U.S. at 586, 100 S.Ct. at 1380). Therefore, absent exigent circumstances or proper consent the police may not enter a person's home without a warrant even if probable cause exists to support an entry to search or arrest. Payton, 445 U.S. at 590, 100 S.Ct. at 1382; Welsh, 466 U.S. at 749, 104 S.Ct. at 2097; United States v. Altman, 797 F.2d 514, 515 (7th Cir.1986) (per curiam).

In Llaguno v. Mingley, supra, this Court recently addressed the issue of a warrantless entry raised in the context of a Sec. 1983 action. First, as stated above, probable cause must exist to justify the entry. In defining probable cause, Llaguno held that: "[t]he amount of information that prudent police will collect before deciding to make a search or an arrest, and hence the amount of probable cause they will have, is a function of the gravity of the crime, and especially the danger of its imminent repetition." Llaguno, 763 F.2d at 1566; see also BeVier v. Hucal, 806 F.2d 123, 127 (7th Cir.1986). Therefore, as stated in BeVier, at 127, "probable cause is a function of information and exigency" under the formula set forth in Llaguno. Second, and apart from this showing of probable cause, there must exist sufficient exigent circumstances to justify the warrantless entry or the police must have acquired proper consent to enter. Payton, 445 U.S. at 587-88, 100 S.Ct. at 1380-81; United States v. Paul, 808 F.2d 645, 647 (7th Cir.1986). For example, in Welsh v. Wisconsin, 466 U.S. at 752-54, 104 S.Ct. at 2099-2100, the Supreme Court held that, at a minimum, exigent circumstances do not exist when the underlying offense is minor, typically a misdemeanor. The petitioner in Welsh was arrested in his home for a traffic offense amounting to a civil forfeiture action, and the warrantless entry was held unlawful where the police claimed that the petitioner's blood-alcohol level would have dissipated were they to have delayed the arrest to obtain a warrant. Id. at 754, 104 S.Ct. at 2100 (and cases cited therein).

A. Probable Cause

Turning to the issue of probable cause, plaintiffs' argument is basically that the police did not consider all the information...