Arian Wade v. James Collier ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3207
ARIAN WADE,
Plaintiff-Appellant,
v.
JAMES COLLIER, JR., et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10-cv-06876 — Virginia M. Kendall, Judge.
ARGUED SEPTEMBER 18, 2014 — DECIDED APRIL 17, 2015
Before WOOD, Chief Judge, and POSNER and MANION, Circuit
Judges.
MANION, Circuit Judge. Arian Wade, a former police officer
for the Village of Maywood, was prosecuted in Illinois state
court for criminal drug conspiracy. After a jury acquitted him,
he sued three other Maywood police officers and the Village
alleging violations of his federal equal protection rights and
asserting a state law claim for malicious prosecution. The
2 No. 13-3207
district court granted the defendants summary judgment and
Wade appeals. We affirm.
I.
On August 22, 2004, Hosie Thurman, a drug dealer and
high-level gang member, attempted to bribe Maywood police
officers Dwayne Wheeler, Weldon Cobos, and Theodore
Yancy. Thurman offered to pay them between one and two
thousand dollars a week in exchange for leaving his drug
dealers alone. The officers did not accept Thurman’s bribe and
instead reported it to Maywood Police Chief James Collier,
who, in turn, suggested they involve the Cook County State’s
Attorney’s Office. Officer Wheeler contacted the State’s
Attorney’s Office and informed them of Thurman’s attempted
bribe. The State’s Attorney’s Office also learned during the
summer of 2004 that an individual arrested by Maywood
police had told the officers that Thurman had some police
officers on his payroll.
The State’s Attorney’s Office started an undercover
operation dubbed Operation Pocket Change. They directed
Officers Wheeler and Yancy to work undercover to gather
evidence against Thurman and his associates. As part of this
investigation, Officers Wheeler and Yancy pretended to be
dirty cops and accepted from Thurman weekly payments of
$1,200 in exchange for leaving his sellers (Torrance Coats and
Harrison Collins, among others) alone.
No. 13-3207 3
The State’s Attorney’s Office obtained a warrant for a pen
register1 to monitor Thurman’s cell phone. This information
revealed numerous contacts between Thurman and Maywood
Police Officer Arian Wade. The State’s Attorney’s Office then
obtained authorization for a wiretap to record calls to and from
Thurman’s cell phone.
After learning that Wade was communicating with
Thurman, the Operation Pocket Change team decided to
“tickle the wire” to see if Wade would provide information to
Thurman. In early December 2004, the Operation Pocket
Change team agreed that Lieutenant Donald Mobley would
announce during a roll call at which Wade was present that
officers should stay clear of an area in which Thurman’s
dealers were known to engage in illegal activities. The area was
near his grandmother’s house. (This fact is important as will be
seen shortly.)
The Operation Pocket Change team had not agreed on a
specific date in December for the announcement to be made.
However, on December 9, 2004, Officer Wheeler, as he ex-
plained in his deposition, told Officer Mobley by telephone to
make the announcement that day. Officer Mobley testified he
then went to the afternoon roll call, confirmed that Wade was
present, and then told the officers to stay out of a certain area
1
“A pen register is a mechanical device that records the numbers dialed on
a telephone by monitoring the electrical impulses caused when the dial on
the phone is released.” United States v. Hankton, 432 F.3d 779, 782 n.5 (7th
Cir. 2005) (internal quotation omitted). Typically, a pen register is “installed
at a central telephone facility and records on a paper tape all numbers
dialed from the line to which it is attached.” Id. (internal quotation omitted).
4 No. 13-3207
of the city (which was part of Thurman’s territory) because an
outside law enforcement agency was conducting an operation
there. Officer Mobley testified that after making the announce-
ment, he called Officer Wheeler and informed him he had
made the roll call announcement. Officer Mobley also told
Chief Collier that he had done so. Chief Collier likewise
testified that Officer Mobley had informed him of the roll call
announcement, although at the time of his deposition (several
years later), Chief Collier could not remember the date.
Maurice Macklin, an investigator for the State’s Attorney’s
Office, testified that on December 9, 2004, one of the Maywood
police officers had called the Operation Pocket Change wire
room and informed the team that the roll call announcement
had been made and that Wade was present for the announce-
ment. At the time of his deposition, Investigator Macklin could
not recall which officer had made the call. Officer Wheeler also
testified in his deposition that Officer Mobley had called the
wire room and told the Operation Pocket Change team that he
had made the roll call announcement, although Officer
Wheeler could not remember who took Officer Mobley’s call.
Investigator Macklin testified that after he had learned that
Officer Mobley had made the roll call announcement, he
listened to the telephone calls intercepted from Thurman’s cell
phone and heard, real-time, Wade call Thurman and warn him
that “Granny’s house was hot.”
Similarly, Assistant State’s Attorney Catherine Hufford
testified that while listening to the intercepted telephone calls
she received word that Officer Mobley had made the roll call
announcement, although Hufford did not remember which
No. 13-3207 5
investigator relayed this information to her. However, she
remembered that after being informed that Officer Mobley had
made the roll call announcement, the team waited to hear what
calls would be made to Thurman’s phone. Hufford further
testified that later that same day, she heard the recording of
Wade’s call to Thurman in which he warned Thurman that an
outside patrol was in the area and it was hot around Granny’s
house.
Wade admitted calling Thurman on December 9, 2004, after
roll call and telling him “lot of people around grannys until
about 7,” and after Thurman said “say again,” he repeated “a
lot of people around grannys until about 7.” Thurman then
said “you say it’s gonna be hot around grannys,” and Wade
said “yeah, it is already.” Thurman then said “I’m a lay low
then.” After getting off the phone with Wade, Thurman called
one of his sellers and told him that “over there by my granny’s
house it’s suppose to be hot around the area. You be cool. You
don’t even really go over there.”
Wade called and warned Thurman that Granny’s house
was hot about 90 minutes after Officer Mobley had called the
wire room to inform the team that he had made the roll call
announcement. Yet Wade claims that he did not hear the
announcement. Rather, he claims he made up the tip in an
attempt to garner favor with Thurman and eventually turn him
into a confidential informant.
The investigators recorded many other calls between Wade
and Thurman. Of particular significance was a call Wade made
to Thurman on December 13, 2004. During this call, Wade
informed Thurman that Coats (one of Thurman’s sellers) had
6 No. 13-3207
“a problem.” Thurman asked if Coats had been pulled over,
and after some reluctance, Wade said “yeah,” but that he did
not know by whom. At the time of Wade’s call, a surveillance
team was operating in the area and noted that Wade had
stopped down the block from where Coats had been pulled
over. Wade called Thurman back a few minutes later and told
Thurman that they had “got him” and were searching his
vehicle. Thurman then asked Wade if it was someone local.
After Wade said no, Thurman said, “so you can’t do nothing,”
and Wade said “no.” After hanging up, Thurman called Wade
right back and asked if anyone was with Coats and Wade said
he could not tell.
Following these exchanges, Assistant State’s Attorney
(“ASA”) Daniel Reedy obtained a warrant for Wade’s arrest,
as well as a warrant to search his home. A search of Wade’s
home computer uncovered a fraudulent arrest warrant for
Thurman. After Thurman was arrested, he told ASA Reedy
that Wade helped him rob one of his suppliers by pretending
to arrest him and seizing the supplier’s drugs. Wade later gave
those drugs to Thurman and also provided him with the fake
warrant. Thurman testified at Wade’s criminal trial that he
(Thurman) later showed the warrant to his supplier to bolster
the believability of his arrest. Officers recovered a hard copy of
the fraudulent arrest warrant during the search of Thurman’s
home.
Later, the State’s Attorney’s Office obtained a grand jury
indictment against Wade, Thurman, and some of Thurman’s
dealers for criminal drug conspiracy. Wade pleaded not guilty
to the state criminal charges. Wade moved to suppress the
evidence seized during the search of his home, arguing that the
No. 13-3207 7
search warrant application contained deliberate and material
misrepresentations of fact. Specifically, Wade argued that the
search warrant application falsely claimed that the roll call
announcement was made on December 9, 2004.
In making this argument, Wade pointed to three different
memoranda which purported to document the roll call
announcement. One memo was dated December 15 and stated
that the announcement had been made on December 13. The
other two memos stated that the roll call announcement had
been made on December 9, but one was dated December 9 and
the other January 19, 2005. All three memos listed a different
roster of police officers as those present during the roll call
announcement, but all three memoranda listed Wade as being
present during the announcement. Wade argued that these
memos established that the announcement was made on
December 13 and not December 9 and that the officers altered
the memorandum to frame him. The state court denied Wade’s
motion based on testimony from the officers, and the case
proceeded to trial. A jury later acquitted Wade.
After he was acquitted, Wade sued Officers Collier,
Mobley, and Wheeler, as well as the Village of Maywood. He
alleged a violation of his federal equal protection rights and a
state malicious prosecution claim. The gist of his lawsuit is that
the defendants lied to the State’s Attorney’s Office about
making the roll call announcement on December 9, 2004, and
that this lie caused his wrongful prosecution (and also caused
him to be treated differently than other officers who communi-
cated with drug dealers). The district court granted the
defendants’ motion for summary judgment and Wade appeals.
8 No. 13-3207
II.
A. Malicious Prosecution
We begin with Wade’s malicious prosecution claim. Under
Illinois law, to state a malicious prosecution claim, Wade must
show “(1) the commencement or continuation of an original
criminal or civil proceeding by the defendants; (2) termination
of the proceeding in his favor; (3) the absence of probable
cause; (4) the presence of malice on the defendants’ part; and
(5) damages.” Swearnigen-El v. Cook County Sheriff’s Dept., 602
F.3d 852, 863 (7th Cir. 2010). It is well established that the
existence of probable cause forms a complete defense to a
malicious prosecution claim. Logan v. Caterpillar, 246 F.3d 912,
926 (7th Cir. 2001). Further, “[u]nder Illinois law, a grand jury
indictment is prima facie evidence of probable cause.”
Swearnigen-El, 602 F.3d at 863.
In this case, the grand jury indictment of Wade is prima
facie evidence of probable cause. Id. Wade argues the grand
jury indictment does not establish probable cause because the
defendants lied to the State’s Attorney’s Office about announc-
ing on December 9, 2004, during the roll call that officers
should stay clear of Thurman’s territory. Wade maintains that
the grand jury’s indictment was based on that false informa-
tion and thus the indictment does not establish probable cause.
See Freides v. Sani-Mode Mfg. Co., 211 N.E.2d 286, 289 (Ill. 1965)
(noting that a grand jury’s presumption of probable cause
“may be rebutted by other evidence, such as proof that the
indictment was obtained by false or fraudulent testimony
before the grand jury … or other improper or fraudulent
No. 13-3207 9
means”); see also Fabiano v. City of Palos Hills, 784 N.E.2d 258,
276 (Ill.App. 2002).
Wade’s argument fails for two reasons. First, the evidence,
read in the light most favorable to Wade, does not establish a
genuine issue of material fact concerning his assertion that the
defendants lied about Mobley making the roll call announce-
ment on December 9. Wade claims that a factual issue exists
concerning the date of the announcement based on the
memorandum dated December 15, which stated that the roll
call announcement had been made on December 13. Wade
seems to argue that since the defendants had access to the
recordings from the wire tap, after hearing the content of his
December 9 call to Thurman, they conspired to falsely claim
that Mobley’s roll call announcement had been made on
December 9. Wade’s theory is that while he had called Thur-
man on December 9 and told him to stay clear of Granny’s
house, he did not get that information from any roll call
announcement, but merely made it up in an attempt to gain
Thurman’s confidence and thereby turn him into an informant.
And, Wade continues, the defendants’ lie and the alteration of
the memorandum to state that the roll call announcement had
been made on December 9 made his innocent police work seem
“nefarious.” Appellee’s Reply Brief 6.
Lieutenant Mobley testified that the December 13 date
contained in the memoranda was a mistake. Under other
circumstances, the conflicting memoranda might create a
genuine issue of material fact, but they do not in this case.
Investigator Macklin and ASA Hufford both testified that on
December 9, the team was told that the roll call announcement
had been made and that Wade was present for the announce-
10 No. 13-3207
ment. About ninety minutes later, Investigator Macklin and
ASA Hufford heard Wade’s call to Thurman wherein he
passed on the warning to Thurman. Wade does not claim that
anyone from the State’s Attorney’s Office was part of the
alleged conspiracy, nor is there any evidence to call into
question their testimony. Of course, the State’s Attorney’s
Office’s staff were not in the roll call room when the announce-
ment was made, but Wade’s theory is metaphysically impossi-
ble. Under Wade’s theory, it was after hearing his December 9
call to Thurman that the defendants decided to frame Wade by
telling the State’s Attorney’s Office that the roll call announce-
ment had been made on December 9, thereby making his tip to
Thurman look nefarious. But Mobley called the wire room on
December 9 to inform the Operation Pocket Change team that
he had made the roll call announcement before Wade called
Thurman, and thus before the defendants could possibly have
heard the warning call. Under these circumstances, the
disparity in the memoranda does not create a genuine issue of
material fact concerning the date of the roll call
announcement.2
2
Wade also suggests in passing that Officer Mobley never made an
announcement at roll call directing officers to stay out of Thurman’s
territory. But he offers no evidence to support such a theory. In his own
affidavit he merely claims that while in the December 9 “roll call, I did not
hear Officer Mobley state that there was an outside agency conducting an
operation in the area of 100 block of 10th and 11th Ave.” He also attested:
“I was present at the December 13, 2004 roll call. I have never paid attention
to whether Commander Mobley made a statement regarding police
activity.” Conversely, in addition to their own testimony, the defendants
presented evidence from another officer (one not involved in Operation
(continued...)
No. 13-3207 11
Moreover, even if we disregard the grand jury indictment
and the evidence concerning the roll call announcement,
including Wade’s subsequent call to Thurman, the remaining
evidence established probable cause to charge Wade. Probable
cause is a complete bar to a malicious prosecution claim. Logan,
246 F.3d at 926. Probable cause is merely the “probability or
substantial chance [that] criminal activity exists; it does not
require the existence of criminal activity to be more likely true
than not true.” Thayer v. Chiczewski, 705 F.3d 237, 246 (7th Cir.
2012). And “[t]his is an objective inquiry; we do not consider
the subjective motivations of the officer.” Id. at 247.
In this case, there was substantial evidence that Wade
conspired with Thurman. The State’s Attorney’s Office had
evidence that Thurman attempted to bribe three Maywood
police officers and already had other Maywood officers on his
payroll. The pen register run by the State’s Attorney’s Office
showed extensive contacts between Wade and Thurman and
the wire tap recorded multiple conversations between Wade
and Thurman, including several calls where they arranged to
meet in person, one call in which Thurman asked Wade to help
him purchase a bullet-proof vest, and another call in which
Wade warned Thurman that Coats had been pulled over and
was having his car searched. This last call was particularly
damning because Wade told Thurman he did not know the
2
(...continued)
Pocket Change) that Officer Mobley came into roll call and instructed the
shift to stay out of a specific area. While that officer could not remember the
date the announcement was made, his testimony confirms that such an
announcement was made and the other evidence establishes that the
announcement was made on December 9.
12 No. 13-3207
officers involved and therefore could not do anything about it.
Additionally, the Operation Pocket Change team discovered
no contacts between Thurman and other Maywood police
officers, other than the extensive contacts between Wade and
Thurman (and Thurman and the undercover officers). Taken
together, this evidence established a “substantial chance” that
Wade was involved in a criminal conspiracy with Thurman.
Thayer, 705 F.3d at 246.
Finally, there was the fraudulent warrant for Thurman’s
arrest discovered on Wade’s computer and in Thurman’s
home. This fraudulent warrant corroborated Thurman’s claim
that Wade had helped him rob one of his suppliers by pretend-
ing to arrest Thurman and that Wade gave him the faux
warrant to bolster the legitimacy of his arrest in the eyes of his
supplier. Because there was probable cause to charge Wade,
and even more evidence to continue to prosecute him, the
district court properly granted the defendants summary
judgment on his malicious prosecution claim.3
B. Class-Of-One Equal Protection Claim
Wade also presented a class-of-one equal protection claim
under 42 U.S.C. § 1983. There are two main problems with
Wade’s equal protection claim. First, Wade’s equal protection
claim is merely a reframing of his malicious prosecution claim.
3
The defendants argue extensively on appeal that they, as police officers,
could not be liable for malicious prosecution because the prosecutors were
the ones who decided to charge Wade. However, because probable cause
supported the charging of Wade, there is no need for us to decide whether
the defendants’ conduct was sufficient to constitute “the commencement or
continuation of the criminal claim.” Swearnigen-El, 602 F.3d at 863.
No. 13-3207 13
Wade claims the defendants treated him differently from other
officers who communicated with known drug dealers in that
he was charged criminally and they were not. Where an equal
protection claim is merely a rewording of a malicious prosecu-
tion claim, dismissal of the equal protection claim is appropri-
ate. See Vukadinovich v. Bartels, 853 F.2d 1387, 1391–92 (7th Cir.
1988).
Second, Wade cannot show “that the defendants intention-
ally treated [him] differently from others similarly situated to
[him] for no other reason.” Williamson v. Curran, 714 F.3d 432,
449 (7th Cir. 2013).4 “The persons alleged to have been treated
more favorably must be identical or directly comparable to the
plaintiff in all material respects.” Reget v. City of La Crosse, 595
F.3d 691, 695 (7th Cir. 2010). None of the individuals Wade
points to was similarly situated. For instance, he first argues
that Officers Yancy and Wheeler were similarly situated
“because they provided inside information to Hosie Thurman
and were not the subject of a criminal prosecution.” Appel-
lant’s Brief at 26. But Officers Yancy and Wheeler were
working undercover and hand-in-hand with the State’s
Attorney’s Office in connection with Operation Pocket Change
and provided the information to Thurman as part of the
investigation. Next, Wade points to Maywood Police Officer
Valerie Hastings as someone he believes is similarly situated
4
In this circuit there is a split concerning whether a plaintiff must also
prove animus or improper motive for class-of-one claims. See Del Marcelle
v. Brown Cnty. Corp., 680 F.3d 887 (7th Cir. 2012) (en banc). However, we
need not reach that issue in this case because Wade’s equal protection claim
fails for other reasons.
14 No. 13-3207
but treated differently. Wade claims that Hastings had also
given information to a drug dealer but that rather than being
prosecuted, she was merely fired. There are two problems with
Wade’s reliance on Hastings as a comparator. First, Wade does
not support his argument concerning Hastings with record
evidence. Before the district court, Wade attempted to file
redacted documents discussing Hastings’s situation, but the
district court ordered him to file the original, unredacted
documents. Wade did not file those documents, but instead
provided the court with “courtesy copies.” Because he did not
file the documents with the district court, they never became
part of the record and this court denied Wade’s motion to
supplement the record on appeal. Second, Wade’s own
description of Hastings’s situation distinguishes her case from
Wade’s. Wade claims that Hastings provided information to a
drug dealer named Brian Daviston. The district court found
Hastings’s situation different because her call to Daviston had
not been recorded. That is true but there is an even more
material difference: There was evidence that Thurman already
had police officers on his payroll and at the time that Wade
disclosed information to Thurman, the State’s Attorney’s
Office was undertaking a criminal investigation to discover the
identity of the corrupt cops. Wade does not claim that
Daviston, like Thurman, had police officers on his payroll and
that the State’s Attorney’s Office was involved in the investi-
gation at the time Hastings purportedly passed on the informa-
tion. All of these differences render Hastings not comparable
to Wade. Finally, Wade claims that Officer Wheeler treated
officers involved in an earlier (June 2006) undercover opera-
tion, dubbed “Operation Double Trouble,” more favorably by
No. 13-3207 15
not seeking criminal prosecution of any officers who had
contacted narcotics dealers during the course of that under-
cover operation. But Wade does not point to any specific
officer who was treated differently and instead merely claims
the “Appellees failed to disprove” that other officers had not
contacted drug dealers during Operation Double Trouble.
Appellant’s Brief at 28. However, it is Wade and not the
defendants who bears the burden of proof and to survive
summary judgment, Wade must identify an individual who
was similarly situated but treated differently, without a
rational reason. See Fares Pawn, LLC v. Indiana Dept. of Fin.
Instit., 755 F.3d 839, 845 (7th Cir. 2014). He has not done so.
Accordingly, the district court properly granted the defendants
summary judgment on Wade’s class-of-one equal protection
claim.5
One loose end before closing. Throughout this discussion
we have referred to the defendants jointly because Wade’s
5
Wade’s class-of-one equal protection claim likely also could not withstand
the logic of Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008).
In Engquist, “the Supreme Court held that public employees cannot bring
class-of-one claims against their public employers because the theory is
‘simply a poor fit’ in the employment context, which necessarily ‘involve[s]
discretionary decisionmaking based on a vast array of subjective, individu-
alized assessments.’” Fares Pawn, 755 F.3d at 848 (quoting Engquist, 553 U.S.
at 603, 605). In United States v. Moore, 543 F.3d 891, 901 (7th Cir. 2008), we
applied Engquist’s logic to reject a class-of-one equal protection claim based
on the government actor’s exercise of prosecutorial discretion. Similarly,
Wade’s class-of-one equal protection claim is not a good fit in the context
of a harm caused by the State’s Attorney’s Office’s exercise of its prosecuto-
rial discretion. But see Hanes v. Zurick, 578 F.3d 491, 495 (7th Cir. 2009).
16 No. 13-3207
malicious prosecution and equal protection claims cannot
succeed. But, in reality, Mobley was the sole defendant
responsible for making the roll call announcement and it was
Mobley who informed the other defendants that he had done
so. Had Wade presented sufficient evidence that Mobley had
lied about making the roll call announcement, Wade would
still need to establish a basis for holding Officers Collier and
Wheeler, as well as the City of Maywood, liable. However,
because there is no basis for liability for anyone, we did not
explore this issue.
III. Conclusion
The district court properly granted the defendants sum-
mary judgment on Wade’s claims. Wade’s malicious prosecu-
tion claim fails because probable cause supported his prosecu-
tion. Wade cannot succeed by merely reframing that claim as
a class-of-one equal protection claim. Nor is an equal protec-
tion claim well-suited to a case involving prosecutorial
discretion, such as this one. Added to these defects is Wade’s
failure to identify a similarly-situated individual who was
treated more favorably. For these and the foregoing reasons,
we AFFIRM.