Russell v. Harms
| Decision Date | 02 February 2005 |
| Docket Number | No. 04-2065.,04-2065. |
| Citation | 397 F.3d 458 |
| Parties | Tracy RUSSELL and Jennifer Davis, Plaintiffs-Appellants, v. Bryan HARMS, individually and in his official capacity as an officer of the Illinois State Police; J. Dustin King, individually and in his official capacity as an officer of the Illinois State Police; and Doug Maier, individually and in his official capacity as an officer of the White County Sheriff's Department, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Pamela S. Lacey, Benton, IL, for Plaintiffs-Appellants.
Jeffrey A. Schuck, Office of the Attorney General, Springfield, IL, James C. Cook, Walker & Williams, Belleville, IL, for Defendants-Appellees.
Before FLAUM, Chief Judge, and EASTERBROOK and SYKES, Circuit Judges.
Tracy Russell and Jennifer Davis filed this suit under 42 U.S.C. § 1983, alleging that Illinois State Police Officers Bryan Harms and J. Dustin King, and White County Sheriff's Department Officer Doug Maier violated their rights under the Fourth Amendment to the United States Constitution. The district court granted summary judgment in favor of defendants, and Russell and Davis appealed. Because we conclude that plaintiffs have failed to establish a Fourth Amendment violation as a matter of law, we affirm.
In the summer of 2000, Officer Harms was contacted by Martin Bayley, the vice president of a company that owns several Circus Video movie rental stores. Bayley informed Harms that he suspected that one of his employees was stealing merchandise from a Circus Video store in Norris City, Illinois. Bayley advised that he believed that the culprit was Tracy Russell, a manager who had unregulated access to the store's VHS and video game inventory. According to Bayley, he had discovered that Russell and her roommate, Jennifer Davis, were selling hundreds of videocassettes and Nintendo N64 video games via the online auction site eBay under the username "TJ198."
Harms and other members of the Illinois State Police investigated Bayley's claims by logging on to eBay, posing as ordinary buyers, and bidding on a pack of 100 videotapes offered for sale by TJ198. After winning the auction, the officers were directed by TJ198 to send payment to Jennifer Davis at a post office box in Norris City, Illinois. The cashier's check mailed to that address was returned endorsed "Jennifer Davis." The tapes shipped by TJ198 arrived in two boxes. Someone had written "For Circus" in ink on the side of one of the boxes. Harms and Circus Video director of operations Bob Polcalri examined the tapes, finding that many were labeled with tags, bar codes, or other stickers identical to those used by Circus Video. It appeared that stickers of like shape and placement had been peeled off several other tapes.
On August 10, 2000, Harms applied for a warrant to search the house where both Russell and Davis live. The complaint supporting the application for the warrant detailed the investigation as described above, and stated that, according to Bayley, Russell had no legal right to possess the tapes or video games, and had not purchased any movies from Circus Video's corporate parent or its suppliers. The complaint asserted that Russell and Davis would need unlimited, confidential access to a computer to manage the suspected high volume of transactions and to stay in constant communication with online bidders. The complaint alleged that this type of access would be available only at the suspects' house.
At 2:23 P.M. that day, a White County Circuit Court judge issued a warrant authorizing the police to search plaintiffs' home and seize the following:
Harms, King, Maier, and other officers executed the warrant that afternoon. Russell and Davis were home at the time of the search. The officers discovered boxes containing hundreds of videocassettes and Nintendo games. They also found CDs, DVDs, and non-Nintendo games and equipment. Some were commingled in the boxes with the VHS tapes and N64 games; others were located nearby. The officers seized all of these media items plus a wide range of documents found in the house.
Harms and King arrested Russell and took her to the police station for questioning. They returned her to her house a few hours later. The officers subsequently arrested, questioned, and then released Davis.1 Defendants contend that, while being questioned, Davis signed a written consent form authorizing the police to search a storage unit that she had rented in the nearby town of Carmi, Illinois. The next day, the officers searched the unit and seized all of its contents, including 135 boxes containing VHS tapes, Nintendo games, non-Nintendo games, CDs, and a popcorn machine.
On October 11, 2000, the White County State's Attorney filed informations charging Russell and Davis with felony theft. On February 25, 2002, however, the prosecutor dropped the charges after both suspects passed polygraph tests supporting their assertion that they had obtained the tapes lawfully, and had no part in the theft of any merchandise from Circus Video.2 Plaintiffs' property was returned to them in March of 2002.
On August 9, 2002, Russell and Davis filed this action in the Southern District of Illinois under § 1983, alleging that the officers had violated their Fourth Amendment rights. Plaintiffs' complaint also raised supplemental state law claims of conversion, unreasonable intrusion upon seclusion, and violations of the Illinois Constitution. After discovery closed, the district court granted summary judgment in favor of defendants on the Fourth Amendment claim. The court held that the officers had not violated the federal constitution as a matter of law, and in the alternative were protected by qualified immunity. It declined to exercise supplemental jurisdiction and dismissed the state-law claims without prejudice. Russell and Davis appeal only the district court's grant of summary judgment in favor of defendants on the Fourth Amendment claim, and do not challenge its dismissal of the state-law claims.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "In evaluating the district court's decision, we `must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party.'" Morfin v. City of East Chicago, 349 F.3d 989, 996-97 (7th Cir.2003) (quoting Conley v. Village of Bedford Park, 215 F.3d 703, 708 (7th Cir.2000)). We review the district court's grant of summary judgment de novo. Id. at 996. In assessing plaintiffs' § 1983 claim, we must determine at the threshold whether the facts viewed in their favor establish a violation of the Fourth Amendment. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Only if we answer that question in the affirmative do we address whether the officers are protected by qualified immunity. Id.
Russell and Davis contend that the officers violated their rights by: (i) searching plaintiffs' house pursuant to a warrant unsupported by probable cause; (ii) executing a warrant that lacked particularity; (iii) exceeding the scope of the search warrant; (iv) seizing plaintiffs unlawfully; and (v) searching Davis's storage locker without consent. We address these arguments in turn.
The Fourth Amendment demands, among other things, that "no Warrants shall issue, but upon probable cause." U.S. Const. amend. IV. Russell and Davis contend that the warrant to search their house was not supported by probable cause, and that any reasonable officer would have recognized this. Plaintiffs argue that the complaint in support of the warrant cannot sustain a finding of probable cause because it does not allege that anything had been stolen. They reason that because it is not unlawful per se to possess or sell videotapes or games, the failure to allege that a crime occurred is a missing link that fatally undermines the warrant.
As an initial matter, plaintiffs mischaracterize the record. The complaint seeks "evidence of the offense of Theft," and states that "Bayley advised that Russell has no legal right to any Circus Video VHS movies or N64 games," and had "not purchased any VHS or N64" games from Circus Video's parent corporation or its suppliers. Thus, the complaint clearly alleges that a crime has occurred. Plaintiffs' strained reading ignores the requirement that "affidavits for search warrants... be tested and interpreted by magistrates and courts in a commonsense and realistic fashion." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
Viewing the complaint as a whole, it clearly establishes probable cause to search plaintiffs' house. A complaint supports a finding of probable cause when it "sets forth sufficient evidence to induce a reasonably prudent person to believe that a search will uncover evidence of a crime." United States v. Peck, 317 F.3d 754, 756 (7th Cir.2003). "[P]robable cause requires only a probability or chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
The complaint in support of the warrant relied on information from Bayley, a known, credible witness whose allegations had been corroborated by the police. Bayley advised that Russell's position as store manager gave her the opportunity to steal inventory from Circus Video without being...
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