Warlick v. Cross
| Decision Date | 02 September 1992 |
| Docket Number | 90-3802,Nos. 90-3170,s. 90-3170 |
| Citation | 969 F.2d 303 |
| Parties | Regina WARLICK, Plaintiff-Appellee, Cross-Appellant, v. Herman CROSS, Defendant-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Lonny B. Ogus, Leland Shalgos, argued, Chicago, Ill., for plaintiff-appellee.
Judson H. Miner, Davis, Miner, Barnhill & Galland, Sharon Baldwin, Lawrence Rosenthal, Deputy Corp. Counsel, Cheryl J. Colston, Kelly R. Welsh, Asst. Corp. Counsel, Brian Trubitt, argued, Office of the Corp. Counsel, Appeals Div., Chicago, Ill., for defendant-appellant.
Before CUMMINGS and MANION, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
Regina Warlick sued police officer Herman Cross for arresting her without probable cause. Warlick brought claims under 42 U.S.C. § 1983 for violation of her fourth amendment rights and under Illinois law for false imprisonment and malicious prosecution. The jury found for Warlick on her claim for arrest without probable cause and for Officer Cross on the false imprisonment and malicious prosecution claims. The jury awarded $7,500 in compensatory damages. After trial Officer Cross moved for judgment notwithstanding the jury's verdict relying on the jury's answer to one interrogatory as establishing that he had not "planted" certain evidence which might have supplied probable cause. Officer Cross contended that with that theory of lack of probable cause resolved in his favor, he was entitled to immunity as to any other theory the jury may have followed. Judge Lindberg, perhaps believing that the claim of "planting" was the only possible rationale for finding lack of probable cause, considered the motion as based on an inconsistency between the answer and the verdict in favor of plaintiff on her claim for arrest without probable cause and decided that defendant had waived reliance on the inconsistent answer by failure to object while the jury was still present and available to reconsider its answers and verdict. Fed.R.Civ.P. 49(b). Officer Cross now appeals from the judgment and challenges the denial of his JNOV motion.
Chicago police officers, including Officer Cross, executed a valid search warrant for Warlick's home at 745 East 133rd Street, Chicago. The affidavit signed by Officer Cross and included in the warrant described the occupant of the premises as 50-55 years old, five feet tall, 140 pounds, and known as "Mother Mary." Warlick was five feet seven inches tall and 28 years old. During the search the officers were told that Warlick was not "Mother Mary" and that "Mother Mary" lived two doors down from Warlick at 741 East 133rd Street. Although the use of Warlick's address may have been fortuitous, the validity of the warrant has not been disputed.
During the search of Warlick's home, Officer Cross allegedly found a plastic bag full of white powder, 18 handrolled cigarettes, a narcotics pipe, and a supply of plastic bags on the bedroom dresser. Officer Cross testified that he field tested the white powder and that the powder tested positive for cocaine. Officer Cross then arrested Warlick for possession of cocaine and marijuana. The white powder and hand-rolled cigarettes were sent to the crime lab for testing. The white powder turned out to be baking soda, and the hand-rolled cigarettes did not contain marijuana. Due to the negative crime lab test results, all criminal charges against Warlick were dropped.
Warlick sued Officer Cross for arresting her without probable cause. Following the presentation of all of plaintiff Warlick's evidence, Officer Cross moved for a directed verdict based upon qualified immunity. Judge Lindberg denied the motion. Officer Cross did not renew the motion for directed verdict following presentation of all of the evidence.
Plaintiff Warlick claimed that Officer Cross had "planted" the material on the dresser. At the jury instruction conference, Officer Cross' attorney requested the following special interrogatory: "Did plaintiff prove by a preponderance of the evidence that the defendant did not find the white powder, hand-rolled cigarettes, pipe and plastic bags on the bedroom dresser?"
The jury returned a verdict for the plaintiff on her claim for arrest without probable cause and answered "no" to the special interrogatory. (R. 124.) Judgment was entered on the verdict. Within ten days, Officer Cross moved for judgment notwithstanding the verdict, claiming qualified immunity.
Judge Lindberg must have construed the jury's verdict for the plaintiff on her claim for arrest without probable cause as a finding that the officer had planted the evidence, and thus, the answer to the interrogatory was inconsistent with the verdict. He treated the defendant's motion as a claim under Rule 49(b) that the answer to the interrogatory should prevail over the verdict. Because Officer Cross had not objected to the inconsistency prior to the discharge of the jury, Judge Lindberg concluded that objection to the inconsistency had been waived and implicitly reasoned that Officer Cross could not now, after the judgment had been entered pursuant to the general verdict, rely upon the inconsistent answer as a basis for his JNOV motion.
Judge Lindberg's view excluded any possibility that the jury found the evidence was not planted, but nevertheless found probable cause for the arrest lacking. That becomes the critical issue. We must determine whether the Judge erred in following that view of the case and finding the answer to the special interrogatory inconsistent with the general verdict.
Where there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way. For a search for one possible view of the case which will make the jury's finding inconsistent results in a collision with the Seventh Amendment.
Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962). Not only must the answers to multiple special interrogatories be interpreted consistently with each other, but the answers to special interrogatories must be harmonized with the general verdict whenever reasonably possible. Jewell v. Holzer Hosp. Found., Inc., 899 F.2d 1507, 1510 (6th Cir.1990).
The question of a defendant's qualified immunity is a question of law for the court, not a jury question. Alvarado v. Picur, 859 F.2d 448, 451 (7th Cir.1988). When the issue of qualified immunity remains unresolved at the time of trial, as was the case here, the district court may properly use special interrogatories to allow the jury to determine disputed issues of fact upon which the court can base its legal determination of qualified immunity. Rakovich v. Wade, 850 F.2d 1180, 1202 n. 15 (7th Cir.) (en banc), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988). Whether Officer Cross planted the evidence was a disputed issue of fact. Obviously the question whether he was immune was very different if the evidence had been planted from the situation if the evidence had not been planted, but was found insufficient as probable cause.
The discussion of the proposed special interrogatory at the jury instruction conference clearly shows that it was intended to determine certain disputed issues of fact relating to the qualified immunity defense.
We are submitting this special interrogatory in order to preserve in particular our immunity defense both for possible post-trial motions or possible appeal because, as your Honor knows, it is our position that if he actually found the things there, at least a reasonable officer could have believed he had probable cause.
If we don't have the special interrogatory, we would not know whether the jury decided he didn't find them there--he just said he did, or planted them or something; or in the alternative determined, yes, he found them there, but we don't think there's probable cause. (Tr. 702.)
Officer Cross argued to the district court on his JNOV motion that the answer to the special interrogatory could be interpreted consistently with the general verdict. He argued that the answer of "no" to the special interrogatory meant that the jury found that Officer Cross did not plant the evidence in the bedroom or lie about finding the evidence, but actually found the evidence as he testified. He argued, consistent with that interpretation of the special question, that the general verdict for plaintiff Warlick meant that although the jury found that Officer Cross did not plant the evidence, they still found that he lacked probable cause due to the other circumstances. We hold that this interpretation of the answer and the general verdict is a reasonable interpretation that harmonizes the verdict. Judge Lindberg erred in interpreting the answer as inconsistent with the general verdict when a reasonable interpretation existed which would harmonize the verdict.
Judge Lindberg evidently believed that the jury could not have found that probable cause was lacking without also finding that Officer Cross planted the evidence. However, there were other theories upon which the jury could properly have found lack of probable cause. There was evidence that the baking soda on the dresser could not have reacted positively on a field test for cocaine. The jury could infer either that Officer Cross had not performed a field test, or that he performed one which produced a negative result. Despite his many years of experience, Officer Cross performed no further investigation of the powder to determine whether it was cocaine or some other legal substance.
Probable cause exists if the facts and circumstances within the knowledge of the arresting officer and of which the officer had reasonably trustworthy information were sufficient to warrant a prudent officer in believing that the defendant had...
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