Wilhelm Wade v. Ivan Ramos ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1241
WILHELM I. WADE and SE’MONE M. WADE,
Plaintiffs-Appellants,
v.
IVAN I. RAMOS, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 9022 — Rebecca R. Pallmeyer, Chief Judge.
____________________
ARGUED OCTOBER 25, 2021 — DECIDED FEBRUARY 17, 2022
____________________
Before EASTERBROOK, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. After Chicago police subjected Wil-
helm Wade and his daughter, Se’Mone, to an invasive home
search, the Wades sued. All agree that the officers who exe-
cuted the search wound up in the Wades’ second-floor
apartment by mistake. But the Wades and the officers disa-
gree about how reasonable the mistake was, how it came
about, and when the officers should have realized they were
in the wrong unit. The officers moved for summary judg-
2 No. 20-1241
ment. Although the district court expressed some reserva-
tions, in the end it granted the motion. The Wades appealed.
We agree with the district court that the Wades have not
pointed to evidence that would allow a reasonable factfinder
to decide in their favor, and so we affirm.
I
Like many Chicagoans, the Wades live in an apartment
building that has two floors; theirs is on the second floor. As
in many such buildings, the first-floor unit in the Wades’
building is a short flight of stairs up from ground level. An-
other full flight of stairs leads to the second floor. On the day
of the search, Chicago Police Department (CPD) officers
were seeking Terrell “Swami” Johnson, a purported heroin
dealer. A confidential informant, John Doe, had identified
the “second floor” of the Wades’ building as Johnson’s place
of operations. The officers obtained a warrant for the second-
floor unit, ascended both the short and the full-length stair-
cases, and kicked in the door to the Wades’ unit. That was a
mistake. Doe apparently had identified the unit just a few
steps above ground level as the “second” floor. That was
where Johnson lived and had been running his drug busi-
ness.
Doe was a so-called “registered cooperating individual”
who had provided the CPD with information about drug
sales on hundreds of occasions. At least two of the defend-
ants here, Officer John Frano and Sergeant Ivan Ramos,
knew Doe well from such encounters. According to Ramos,
Doe’s tips had resulted in many prior arrests. That is why,
when Doe told Ramos in September 2015 that he had just
purchased a few bags of heroin from a man known as
“Swami,” Ramos took an immediate interest. Doe recounted
No. 20-1241 3
that he had entered Swami’s second-floor apartment through
the front door, walked through a living room, and pur-
chased heroin in the back bedroom. He claimed to have seen
between twenty and fifty baggies of heroin in the bedroom
closet. After hearing Doe’s story, Ramos drove with him to
the address Doe gave him—the Wades’ building—where
Doe pointed out the (real) second-floor unit—the Wades’
apartment—and said it was Johnson’s.
Ramos did very little to corroborate Doe’s tip. He pulled
a photograph of Terrell Johnson from the CPDs Data Ware-
house and showed it to Doe, who indicated that the man pic-
tured was “Swami.” Neither Ramos nor any other officer
took steps to confirm Johnson’s address, surveilled the
building further, or checked whether anybody else was reg-
istered as living in the unit in question.
Ramos drafted a search-warrant application for the sec-
ond-floor unit. Ramos and Frano then applied for a warrant
from a Cook County judge. The officers furnished the judge
with the application, a draft warrant, and Doe’s criminal his-
tory. The judge also interviewed Doe, who answered several
questions about his knowledge of Johnson, his own heroin
use, the date of the purchase from Johnson, and the quantity
of drugs purchased. The record is silent as to whether the
judge was told that Doe was a registered informant, but the
Wades contend he was not and the officers do not claim oth-
erwise. After the judge issued the warrant, Ramos, Frano,
and ten other officers made plans to execute it that same
evening.
Meanwhile, at the Wades’ apartment, Wilhelm was visit-
ing with his friend Tirae Dotson. Dotson often cut Wilhelm’s
hair and had agreed to do so that night. At around 8 pm, af-
4 No. 20-1241
ter chatting for a bit with Dotson, Wilhelm left to pick up
Se’Mone from a CTA station. The plan was for Dotson to cut
Wilhelm’s hair after Wilhelm and Se’Mone returned. In-
stead, while Wilhelm was out, the police arrived. Their ac-
counts and Dotson’s differ as to what happened next. Be-
cause the Wades, the nonmovants, have adopted Dotson’s
version of the facts, we credit his account to the extent that it
differs from that of the officers. (Dotson was initially a party
to this lawsuit, but his claims have now been settled and are
not part of the appeal.)
Dotson was on the back porch smoking a cigarette when
the officers arrived on the scene. Before he saw anything,
Dotson heard two loud “thuds” or “booms” that sounded to
him as though they were coming from downstairs. The
booms were quickly followed by two officers chasing a man
named Pierre Nero up the rear stairs leading to the porch.
Dotson testified that he was not sure whether Nero was
coming from the downstairs apartment or from somewhere
else. The officers detained Nero (who turned out later to be
one of Johnson’s associates) and Dotson on the porch. The
officers then moved both men to the Wades’ kitchen and
searched them. Dotson alleged that an officer planted narcot-
ics on his person around this time.
All agree that shortly after the officers arrived at the
building, they also entered the downstairs unit. But there are
important differences in the details.
Although we do not rely on the officers’ version, it sheds
some light on the overall scene. The officers say that upon
entering the Wades’ apartment they found Dotson and Nero
inside. Both fled. Several officers pursued and soon caught
up with Dotson and Nero on the back porch. There they saw
No. 20-1241 5
a third man running down the stairs. Officer Frano pursued
the third man, following him into the first-floor unit. Inside
he found a woman, several children, and narcotics in plain
view. Mysteriously, the man had vanished. The woman
identified the man as Johnson and herself as his girlfriend.
This flatly contradicts Dotson’s account, which, as we
said, we are crediting at this juncture. Recall that Dotson
said that he was on the porch, not inside, when he first en-
countered the officers, and he said that the officers chased
Nero up the stairs, not the disappearing Johnson down the
stairs. Dotson also testified that he has a necrotic hip and
could not possibly have fled out onto the back porch. The
Wades, emphasizing these disagreements, urge us to infer
that the officers realized “immediately” that the warrant
identified the wrong apartment. They further infer that the
two booms Dotson heard were the officers breaching the
downstairs door. We will return to these points later.
The Wades returned from the CTA station while the
search of their home was ongoing, but the record does not
pinpoint exactly when. Nor does it shed light on how long,
after the Wades arrived, the officers remained in their
apartment; whether the Wades managed to communicate to
the supervising officers that they, not Johnson, lived in the
second-floor unit; or how much information passed back
and forth between the upstairs and downstairs teams. Video
evidence that might have resolved some of these questions
was, unfortunately, lost—the officers seized the video re-
cording made by the building’s surveillance-system, but
then they purportedly mislabeled it. The officers now repre-
sent that it has been destroyed. (The plaintiffs did not assert
that this loss amounted to spoliation of evidence, nor did
6 No. 20-1241
they seek an adverse inference or damages because of it. We
therefore do not pursue those possibilities.) But putting
aside the many holes in the record, we can say confidently
that a thorough search of the Wades’ apartment turned up
no drugs. In contrast, large quantities of narcotics were dis-
covered in the downstairs unit.
The Wades and Dotson sued. As relevant to this appeal,
the Wades alleged that the officers violated their Fourth
Amendment right to be free from unreasonable searches in
two ways. First, they contended that the warrant was not
supported by probable cause, in part because Ramos know-
ingly omitted material information from the warrant appli-
cation. Second, they contended that the officers knew or
should have known that their warrant described the wrong
apartment but nonetheless continued the search.
The district court granted summary judgment to the of-
ficers on the Wades’ claims. After Dotson’s claims were set-
tled, the Wades appealed.
II
At the outset, we must address an evidentiary dispute.
The Wades contend that the district court erred both in ap-
plying the informer’s privilege to deny discovery into Doe’s
identity and track-record and in failing to find a waiver of
that privilege. We review the district court’s balancing of the
“competing interests” bearing on whether to apply the in-
former’s privilege for abuse of discretion. United States v.
McDowell, 687 F.3d 904, 911 (7th Cir. 2012). Although we
have not yet had occasion to define the standard of review
for waiver of the informer’s privilege, we see no reason not
to apply abuse of discretion here, too.
No. 20-1241 7
The Supreme Court defined the contours of the inform-
er’s privilege in Roviaro v. United States, 353 U.S. 53 (1957).
Roviaro suggests that the privilege is more likely to give way
in a criminal proceeding than in a civil one. Id. at 60. Roviaro
otherwise dictates a broad inquiry into the “particular cir-
cumstances of each case.” Id. at 62. We have emphasized two
additional considerations. First, we have distinguished be-
tween a “mere tipster—someone whose only role was to
provide the police with the information that served as the
foundation for obtaining a search warrant”—and “a transac-
tional witness who participated in the crime charged against
the defendant or witnessed the event in question.” United
States v. Harris, 531 F.3d 507, 515 (7th Cir. 2008) (cleaned up).
The further an informant is from a transactional witness, the
less need to disclose her identity. Id. Second, while the in-
formant’s safety is a core rationale for the privilege, the gov-
ernment “need not make a threshold showing of likely re-
prisal or retaliation against the informant in order to assert
the privilege.” United States v. Valles, 41 F.3d 355, 358 (7th
Cir. 1994).
The Wades’ lawsuit is civil, and so under Roviaro they
have less claim to discovery into Doe’s identity than they
would if they were facing criminal prosecution. Doe falls in
the “middle ground status somewhere between participants
and mere tipsters.” Id. at 359. He purchased some of the
drugs Johnson was selling. But he was not, for instance,
Johnson’s lieutenant. Most importantly, Doe has a legitimate
safety concern. Evidence in the record indicates that he has
given the CPD information about criminal activity hundreds
of times, and his tips have resulted in dozens of arrests.
Moreover, he is a heroin user who interacts regularly with
the same drug dealers about whom he provides tips. In light
8 No. 20-1241
of these and the other circumstances, the district court did
not abuse its discretion by denying the Wades discovery into
Doe’s identity and past record as an informant. That said, we
emphasize the deferential nature of our review. Our decision
today should not be taken as a blanket prohibition against
discovery of an informant’s identity, no matter the circum-
stances.
As for waiver, the Wades contend that Doe should be
stripped of the informer’s privilege because a single filing
inadvertently revealed his “IR number.” (A savvy user of the
relevant databases could use that number to uncover Doe’s
real name.) This contention fails. The initial production of
the IR number was inadvertent, and the disclosure did noth-
ing to nullify Doe’s reasonable safety concerns. Moreover,
the Wades have not identified evidence establishing wide
availability and active use of the IR number. It was thus not
an abuse of discretion for the district court to hold that the
officers’ failure to redact a single number, without more, did
not waive an otherwise-valid assertion of privilege.
III
As we have said many times, summary judgment “is the
‘put up or shut up’ moment in a lawsuit, when a party must
show what evidence it has that would convince a trier of fact
to accept its version of events.” Schacht v. Wis. Dep’t of Corr.,
175 F.3d 497, 504 (7th Cir. 1999). This case provides a text-
book illustration of what we mean by that maxim. Either of
the Wades’ Fourth Amendment claims, if backed up by a
measure of plausible evidence, might well merit a trial. But
as we now explain, there is not enough support for either
one to permit a factfinder to rule in their favor.
No. 20-1241 9
A
We begin with the challenge to the probable cause un-
derpinning the warrant. The Wades contend that Officer
Ramos knowingly or recklessly omitted material information
about Doe’s reliability. If they are correct, Ramos violated
the Wades’ Fourth Amendment rights. “An officer … vio-
lates the Fourth Amendment if he intentionally or recklessly
withholds material information from a probable cause affi-
davit.” Rainsberger v. Benner, 913 F.3d 640, 647 (7th Cir. 2019).
Normally, we give “great deference” to the warrant-issuing
judge’s determination of probable cause. Illinois v. Gates, 462
U.S. 213, 236 (1983). But the Wades’ material-omission claim
cannot be resolved solely on that basis, because “[a]n affida-
vit that misleads by lies or omission undercuts the magis-
trate’s ability to make an independent probable cause de-
termination.” Rainsberger, 913 F.3d at 651. We consider first
whether there was an omission and then, if so, whether it
was material.
In the district court, the Wades alleged that Ramos omit-
ted six relevant facts about Doe. In particular, they contend-
ed that Doe had committed several crimes of dishonesty
while a registered informant and asserted that his past tips
had often proven unreliable. In a thorough discussion, the
district court concluded that each of the six purported omis-
sions was without support in the record, was immaterial, or
both. We agree with that assessment. And in any case, the
Wades do not spill much ink disputing the district court’s
analysis of any particular omission. The main thrust of their
argument on appeal is instead that they were not given a fair
chance to substantiate the omissions because they were de-
nied discovery into Doe’s identity and record. As we already
10 No. 20-1241
have explained, the district court acted within its discretion
in refusing to permit that discovery.
The Wades do, however, continue to press one argument:
that Ramos did not tell the warrant-issuing judge that Doe
was a registered informant at all. The officers do not dispute
that such an omission occurred. We therefore turn to materi-
ality, using a “straightforward method” to determine
whether there is a potential Fourth Amendment violation:
we incorporate the allegedly omitted facts and then evaluate
“whether the resulting ‘hypothetical’ affidavit would estab-
lish probable cause.” Id. at 647 (quoting Bekter v. Gomez, 692
F.3d 854, 862 (7th Cir. 2012)).
Under this methodology, the Wades’ argument comes up
short for two reasons. First, the other grounds for probable
cause—the other portions of the “hypothetical affidavit”—
were robust. “In evaluating a probable cause determination
based on a confidential witness’s report, we look at all the
circumstances, including ‘[1] the level of detail, [2] the extent
of firsthand observation, [3] the degree of corroboration, [4]
the time between the events reported and the warrant appli-
cation, and [5] whether the informant appeared or testified
before the magistrate.’” United States v. Thomas, 835 F.3d 730,
735 (7th Cir. 2016) (quoting United States v. Glover, 755 F.3d
811, 816 (7th Cir. 2014)).
Doe’s report gets about a 4½ out of 5 on this rubric. Doe
appeared before the issuing judge less than 48 hours after
making the alleged heroin purchase. The judge asked Doe
several specific questions, corroborating Doe’s knowledge of
the premises. And, drawing on Doe’s firsthand observation,
the search-warrant application described the premises to be
searched and things to be seized with a high level of detail—
No. 20-1241 11
including not only the address and seller but also the type
and quantity of drugs, the apartment’s layout and the drugs’
specific location, and even the various sorts of packaging. Cf.
United States v. Peck, 317 F.3d 754, 756–57 (7th Cir. 2003) (re-
versing a finding of probable cause where an informant
“failed to give specific details about the drugs in Peck’s
house such as where the drugs were hidden, the total
amount of drugs Peck possessed, or the frequency with
which Peck sold drugs.”) The one weak point was corrobo-
ration. Ramos could and should have done more to confirm
which unit Johnson occupied. Address verification would
have spared the Wades from a violent intrusion by the police
and it would have saved the burden and expense of litiga-
tion for the City. Nonetheless, “the totality-of-the-
circumstances approach means a deficiency in one [respect]
may be compensated for by some other indicia of reliabil-
ity.” Glover, 755 F.3d at 816 (cleaned up). Here, the other cir-
cumstances compensate for the lack of corroboration.
The second problem with the Wades’ argument has to do
with the purported omission itself. Telling a judge that a
John Doe is a registered informant, not an unknown tipster,
will usually increase, not decrease, reliability. Compare
United States v. Searcy, 664 F.3d 1119, 1123 (7th Cir. 2011)
(emphasizing “the fact that the informant’s previous deal-
ings with the police led to three arrests in the past six
months”), with United States v. Koerth, 312 F.3d 862, 867 (7th
Cir. 2002) (criticizing heavy reliance on “a previously un-
known informant”). The best the Wades can say is that
Searcy and Koerth make Ramos’s omission of Doe’s status
suspicious. But that, without more, is not enough to over-
whelm the probable cause otherwise established during
Doe’s appearance before the judge.
12 No. 20-1241
B
We turn finally to the search itself. The Wades contend
that it was conducted unreasonably in two related senses.
First, the officers knew or should have known “immediate-
ly” that they had the wrong apartment. Second, even if the
initial confusion was understandable, they should have real-
ized the mistake and abandoned the search of the Wades’
apartment long before they actually did.
We can quickly dismiss the first theory. The officers had
a valid warrant on which they were entitled to rely. That
warrant identified the second-floor apartment as the one to
be searched. And the discovery of a short stairway leading
up to the building’s first floor was not enough to alert them
to the fact that there was some ambiguity in the identifica-
tion of floors. When the officers reached the entry stairway,
they had no reason to think that Doe had not recognized it
for what it was. This is not a case like Jones v. Wilhelm, 425
F.3d 455, 463 (7th Cir. 2005), where the officers knew from
prior surveillance that the warrant as phrased was “ambigu-
ous and invalid on its face.” Nor does this case resemble
Guzman v. City of Chicago, 565 F.3d 393, 395 (7th Cir. 2009),
where officers had a warrant for a “single-family house” but
arrived at the address only to find a real-estate office and
two separate apartments. Given the facially valid warrant
and the lack of immediately self-evident ambiguity, the of-
ficers were entitled to enter the Wades’ apartment to initiate
a search.
The second aspect of the Wades’ failure-to-abandon ar-
gument finds a bit more purchase. The officers had an obli-
gation to cease the search if and when they realized the mis-
take. “Law enforcement officers who discover that a search
No. 20-1241 13
warrant does not clearly specify the premises to be searched
must ordinarily stop and clear up the ambiguity before they
conduct or continue the search.” Muhammad v. Pearson, 900
F.3d 898, 901 (7th Cir. 2018). And the ambiguity here might
have been apparent to a conscientious officer after just a few
minutes in the building. By that time, the officers were famil-
iar with the building’s layout and multiple staircases, had
discovered drugs in the downstairs unit, and knew from
Johnson’s girlfriend that the downstairs unit—not the
Wades’—was Johnson’s place of operations. On top of that,
the officers’ quick entry to the downstairs unit and the ac-
companying “booms” remain unexplained. The officers’ ac-
count—that they were chasing Johnson—is both contradict-
ed by Dotson and implausible. The officers have never ex-
plained how Johnson managed to vanish from the ground
floor of a small residential building that was surrounded by
officers who had all seen his picture and were there to arrest
him.
But the Wades have not carried their evidentiary burden:
the gaps in the record preclude sending this theory to a jury.
Failure-to-abandon theories of liability such as that evaluat-
ed in Muhammad turn on each individual officer’s actual
knowledge of the indicia of a mistake. Yet our record con-
tains no information about when that knowledge accrued for
specific defendants. We do not know when the upstairs po-
lice learned that drugs had been found downstairs. We do
not know how far the upstairs search had progressed when
the Wades came home, or when Ramos or the other com-
manding officers were told that they had come home. We do
not know when the Wades informed the upstairs police that
they, not Johnson, lived in the second-floor unit. We do not
know how long it took to arrest Dotson. We do not know
14 No. 20-1241
how long the upstairs search continued after Dotson was
removed. We do not even know when the police wrapped
up completely and left the building. The meager record the
Wades have constructed is silent on each of these critical is-
sues. And without such information, no reasonable jury
could find that a specific officer realized a mistake had been
made but nonetheless continued the search. Thus, the dis-
trict court was correct to grant the officers summary judg-
ment.
IV
The judgment of the district court is AFFIRMED.