Seiser v. City of Chi.

• Decision Date: 12 August 2014
• Docket Number: No. 13–1985.,13–1985.
• Citation: 762 F.3d 647
• Parties: Michael SEISER, Plaintiff–Appellant, v. CITY OF CHICAGO and Debra Kirby, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

762 F.3d 647

Michael SEISER, Plaintiff–Appellant,

v.CITY OF CHICAGO and Debra Kirby, Defendants–Appellees.

No. 13–1985.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 13, 2013.

Decided Aug. 12, 2014.

Kenneth N. Flaxman, Attorney, Chicago, IL, for Plaintiff–Appellant.

Justin A. Houppert, Attorney, City of Chicago Law Department, Chicago, IL, for Defendants–Appellees.

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Chicago police officer Michael Seiser was arrested and subjected to a breathalyzer examination after several witnesses reported seeing him drinking from an alcoholic beverage container while driving his personal vehicle. After the breathalyzer detected no alcohol in his bloodstream, he was cited for driving a motor vehicle with an open container of alcohol in the passenger compartment. That charge was dropped after testing of the contents of the container indicated that it did not contain alcohol. Seiser filed suit against the City of Chicago (the “City”) and the police deputy superintendent who had ordered him to be processed criminally, alleging various Fourth Amendment and state-law claims. R. 48; see Seiser v. City of Chicago, No. 12 C 2353, 2013 WL 1809916 (N.D.Ill. Apr. 29, 2013). The district court entered summary judgment in favor of the defendants on all claims. Seiser appeals, contending that probable cause did not support either the order that he undergo a breathalyzer examination or the open-container citation. We affirm.

I.

On the afternoon of March 29, 2011, Officer Seiser was driving his private automobilebetween Tilden Career Community Academy High School in Chicago's Canaryville neighborhood to the nearby intersection of 50th Street and Union Avenue, where Seiser was assigned to stand post until 4:00 p.m. as part of the City's Operation Safe Schools program. Seiser was on duty and in uniform as a police officer.¹

Seiser was making an effort to consume extra water as part of a weight-loss program. Toward that end, he had a large bottle of water with him in the car and in fact was drinking from it while en route to his assigned post. In retrospect, his choice of bottle was not the most prudent: the bottle was a 1.75–liter T.G.I. Friday's Mudslide bottle which, when sold, had contained an alcoholic beverage and which still bore a label that read, “The liquor is in it.”

Gail Glassford (a private employee of the Safe Schools program), her mother Kathleen Glassford, and Roseann Anderson all saw Seiser drinking from the bottle as he drove by them in the 4800 block of South Union Avenue. All perceived the bottle as one containing liquor based on the bottle's size, shape, and labeling.

Gary Anderson, a private school security guard and Roseann's brother, was stationed at the same intersection (50th Street and Union Avenue) as Seiser was. Roseann called her brother and asked him to obtain the license plate number from Seiser's car, which Seiser had just parked across the street from where Gary was standing. As he was talking with Roseann, Gary could see the driver of the car drinking from what looked like a bottle of vodka. Gary subsequently walked across the street, copied down the plate number, and was about to return to his post when Seiser emerged from the car and confronted him. Gary would later report that Seiser staggered as he exited the vehicle and that his breath smelled of alcohol. As Gary used his hand-held radio to summon his supervisor, Seiser got back into his car and drove back to the high school.

At 2:18 p.m., Kathleen Glassford called 911 to report that she had seen someone driving in the vicinity of 50 Street and Union Avenue drinking vodka while driving; she described the car and supplied its license plate number. When police checked the plate number, they discovered the car was registered to Seiser. Kathleen Glassford placed another call to the police at 2:29 p.m. to add that the driver of the car was a police officer and to request that a police supervisor respond to her report.

Sergeant John Verta of the Chicago Police Department (“CPD”) was dispatched to investigate the incident. He spoke with both Gail Glassford and Roseann Anderson, who told him they had seen a police officer driving while drinking from a gallon-sized bottle of vodka. They also directed him to the intersection several blocks away, where Seiser's automobile was once again parked.

As Verta approached Seiser's vehicle from the passenger side, he saw on the front passenger seat a large bottle with the seal broken and with clear liquid inside. Although Verta could not read the bottle's red and white label, which was turned toward the seat, he believed based on the size of the bottle and what Glassford and Anderson had told him that it contained alcohol. Verta summoned Seiser, who was standing not far away, and asked him what was in the bottle. Seiser replied, “What bottle?” When Verta indicated the bottle inside of the car, Seiser—by his own account, which we credit—said that the bottle did not contain alcohol. But when Verta asked him to open the car and turn the bottle over to him, Seiser demurred after ascertaining that Verta had neither a warrant nor an signed affidavit from a complaining witness. “No, get a warrant. I know my rights,” he told Verta. Verta reiterated his request but again met with Seiser's refusal. When Verta related to Seiser what the witnesses had told him, Seiser offered to accompany Verta back to the station and submit to a breathalyzer examination in order to demonstrate that the complaint was false. Verta contacted his watch commander, Captain Robert Johnson, who instructed Verta to bring Seiser into the station. Verta drove Seiser to the Ninth District station.

At this point, the Internal Affairs Division (“IAD”) of the CPD became involved in the matter. After the call from Verta, Johnson contacted IAD Lieutenant David Naleway to inform him that a police officer had reportedly been drinking while on duty. Naleway in turn dispatched two IAD officers—Sergeants Matthew Price and Terrance Cochran—to the Ninth District station. After Price was briefed on the allegations against Seiser, he visited the scene of the incident and conducted his own investigation. He spoke with Gail Glassford as well as Gary and Roseann Anderson, all three of whom reiterated that they had seen a uniformed police officer drinking from what appeared to be bottle of alcohol while driving. Roseann Anderson signed an affidavit to that effect. Price also examined Seiser's vehicle (which was still parked near the high school) and saw the large bottle in the front seat. Price too thought that the bottle was a liquor bottle, and he could see that it contained a clear liquid. An evidence technician photographed the bottle in situ.

Price reported back to Naleway and conveyed what the witnesses had told him and what he had seen in Seiser's car. That information was communicated up the chain of command to Deputy Superintendent Debra Kirby, who headed the CPD's Bureau of Professional Standards. Kirby's assigned duties included oversight of the IAD, among other divisions. Kirby instructed Rivera to have Seiser processed criminally for DUI ( i.e., arrested) at the Ninth District, and to recover the bottle from Seiser's car. She also directed that the IAD conduct an administrative investigation into the incident once the criminal investigation was complete.

Once informed of Kirby's orders, Johnson briefed officers Brian Madsen and Andrew Kral and assigned them to proceed with the criminal investigation and processing of Seiser. They met Seiser at the Ninth District station and at 4:45 p.m. began to process him. They administered field sobriety tests, which Seiser passed. They then ordered him to submit to a breathalyzer test, which the record indicates took place at 5:07 p.m. (Although the defendants aver that Seiser submitted to the test voluntarily, and it is agreed that Seiser had previously suggested the breathalyzer to Verta, Seiser contends that he withdrew his consent once he learned that he was being arrested. In any case, he submitted to the breathalyzer.) The test result indicated a blood-alcohol content of 0.000. An arrest report was completed, and upon reviewing it, Captain Johnson ordered that Seiser be released without a DUI charge. Sergeants Verta and Cochran decided that, in view of the open liquor bottle in his vehicle, Seiser should be cited for an open-container violation, and Madsen wrote the citation accordingly.

At that point in the process, the IAD administrative investigation commenced. Sergeants Cochran and Price solicited Seiser's consent to search his vehicle and to retrieve the bottle, but Seiser refused. The two sergeants then gave Seiser a written order to allow the recovery of the bottle, and Seiser complied with the order: he was driven back to his vehicle, where he unlocked the car and handed over the bottle. The bottle and its contents were inventoried, and the latter were sent to the Illinois State Police laboratory for analysis.

On April 29, 2011, the laboratory issued a report indicating that the contents of the bottle contained no alcohol. At a court hearing on the open-container charge on May 18, Madsen advised the Assistant State's Attorney of the negative laboratory result. The court subsequently dismissed the charge.

Roughly one year later, Seiser filed the instant suit against Kirby and the City, asserting claims under both section 1983 and state law. Among the claims were the two at issue in this appeal: a Fourth Amendment claim against Kirby founded on the contention that the involuntary breathalyzer amounted to an illegal search, as there was no probable cause to believe that it would yield evidence of a crime and no warrant authorizing the search; and a state-law malicious prosecution claim against the City premised on the contention that there was no probable cause to believe Seiser had violated the...