Charles Beal, Jr. v. James Beller , 847 F.3d 897 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2628
CHARLES BEAL, JR.,
Plaintiff-Appellant,
v.
JAMES BELLER and MATTHEW STRELOW,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 12-CV-01146 — Lynn Adelman, Judge.
____________________
ARGUED NOVEMBER 8, 2016 — DECIDED FEBRUARY 10, 2017
____________________
Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit
Judges.
WOOD, Chief Judge. Most Fourth Amendment issues arise
when a criminal defendant files a motion to suppress evi-
dence allegedly collected in violation of its standards, but this
is not such a case. Charles Beal, Jr., has brought a civil action
under 42 U.S.C. § 1983, in which he asserts that two detectives
on the Kenosha, Wisconsin, police force lacked any justifica-
tion recognized by the Fourth Amendment to stop him, to
2 No. 14-2628
frisk him, and then to conduct a more thorough search. The
district court granted summary judgment for the Detectives.
It found that the tip on which they acted was not anonymous,
as Beal contended, and that their actions were permissible un-
der Terry v. Ohio, 392 U.S. 1 (1968). We conclude that the criti-
cal facts were genuinely disputed, and thus we reverse and
remand for further proceedings.
I
The underlying facts are straightforward; we present them
in the light most favorable to Beal, as we must. See Tolan v.
Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam), Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On September 11,
2007, Kenosha Detective Matthew Strelow received an anon-
ymous tip that an African-American man in a yellow shirt was
selling heroin on the corner of 58th Street and 11th Avenue,
known as a “high crime area.” Without taking any steps to
corroborate the tip, Strelow and his partner, Detective James
Beller, drove an unmarked car to that intersection. There they
saw Beal, who matched the tipster’s description, standing in
a driveway talking to a woman. (It later turned out that he
was at his aunt’s residence and was talking to a relative.) The
Detectives parked their car and walked up to Beal. They told
him that they had received an anonymous tip that he was sell-
ing drugs and asked him to identify himself. He did so with-
out objection.
At that point Beller grabbed Beal’s left wrist and Strelow
frisked him. Just before Strelow began, Beal’s right hand had
been in his pocket. Strelow asked him to remove his hand, and
Beal immediately complied. Strelow admitted that Beal’s “de-
meanor was cooperative.” As he carried out the frisk, Strelow
felt an object that he recognized as a pair of keys, and he also
No. 14-2628 3
felt what he described as a soft bulge that felt like tissue. It
was immediately apparent that neither item was a weapon.
Nevertheless, Strelow next emptied Beal’s pocket, removed a
set of keys, two bunched up tissues, a photo ID, and miscella-
neous letters. He examined the keychain and an attached
flashlight, which he discovered had been hollowed out and
now contained four small baggies with a substance the detec-
tive believed was heroin. His examination of the tissues re-
vealed no further drugs, but there were two empty plastic
bags. Beal had no money.
Strelow arrested Beal based on the results of the pocket
search. Beal was charged with possession of heroin in state
court. He moved to suppress the evidence on the ground that
the Detectives had violated the Fourth Amendment by stop-
ping him without sufficient cause, by frisking him even
though there was no reason to think he was armed or danger-
ous, and by searching his pocket after confirming that he was
unarmed. After holding a multi-day hearing on the motion,
the Wisconsin court suppressed the evidence and dismissed
all charges against Beal.
II
Beal filed this action against Beller and Strelow under 42
U.S.C. § 1983 on October 19, 2012, comfortably within the six-
year period that applies to cases in Wisconsin. See Wis. Stat.
§ 893.53; Malone v. Corrections Corp. of Am., 553 F.3d 540, 542
(7th Cir. 2009). He verified his complaint, swearing that the
account it contained of the relevant events was “accurate and
true … subject to the penalty of perjury.” Later he filed an
amended complaint, which also was verified under penalty of
perjury. Beller and Strelow (to whom we refer collectively as
the Detectives unless the context requires otherwise) filed a
4 No. 14-2628
motion for summary judgment on the basis of qualified im-
munity. Beal initially had some problems obtaining the rec-
ords from his suppression hearing, but he ultimately received
them and submitted them in opposition to the motion. This
was not enough, however, to stave off defeat. Going beyond
the qualified immunity ground the Detectives had asserted,
the district court granted summary judgment for them on the
ground that “no reasonable jury could find that plaintiff’s
Fourth Amendment rights were violated” at all. (This finding
risked labeling the state court as unreasonable, given the fact
that the state court had made precisely this finding when it
granted Beal’s motion to suppress. But we do not rest our de-
cision on this uncomfortable point.)
In its opinion, the district court made a number of critical
assumptions, all unfavorable to Beal. For example, it said that
“Beller knew who the informant was and that the informant
had previously provided other officers in the police depart-
ment with reliable information.” Describing the Detectives’
arrival at the house, the court said that “Plaintiff saw the of-
ficers. He made eye contact with Strelow and immediately put
his hand in his right front pocket and turned as if to walk
away.” With respect to the pat-down search, the court ac-
cepted that Strelow “believed the soft bulge [he felt] was a
number of individually wrapped packages of narcotics
wrapped in tissue paper.” Based on that account of the facts,
the court concluded that the Detectives had reasonable suspi-
cion, for Terry purposes, to detain Beal briefly and to frisk him.
The results of that frisk, it continued, provided probable cause
for Beal’s arrest. Those findings, taken together, were enough
to doom Beal’s section 1983 case. With the help of recruited
counsel, whose efforts the court greatly appreciates, Beal has
appealed.
No. 14-2628 5
III
The most important question on this appeal is whether the
undisputed facts showed that the tip on which the Detectives
acted came from a known source, or if there is a genuine dis-
pute of fact over the question whether the source was anony-
mous. This is critical, because if the tip was anonymous, then
the rule of Florida v. J.L., 529 U.S. 266, 268 (2000), which holds
that an anonymous tip without more does not justify a stop-
and-frisk, comes into play. If the tip came from a known
source with a proven track record, the legal analysis is mark-
edly different.
Beal’s initial verified complaint contains the following as-
sertions of fact on that point:
¶ 7. Plaintiff was standing in his aunt’s driveway
talking to a family member Lisa when two detectives
approached the plaintiff and stated we have an annon-
ymous [sic] tip that you are selling drugs.
¶ 8. An annonymous [sic] tip lacks sufficient indic-
tia [sic] of of [sic] reliability and aside from the alleged
tip there was no other basis nor probable cause for said
detectives to stop, frisk and seize any contents from
Plaintiff Beal’s pocket, nor arrest the plaintiff.
Beal’s handwritten amended complaint (filed December
21, 2012), which was also verified, offered this account:
¶ 7. Plaintiff was standing in aunt’s driveway talk-
ing to a family member Lisa when two detectives ap-
proached my cousin and I and stated Come to the ve-
hicle. They stated “we recieved [sic] a phone call you
are selling drugs.”
6 No. 14-2628
¶ 8. An annonymous [sic] tip lacks sufficient indic-
tia [sic] of reliability and aside from the alleged tip
there was no other basis nor probable cause for said
detectives to stop, frisk and seize any contents from my
pockets, nor arrest me.
Paragraph 7 of the initial complaint offers a first-hand re-
port from Beal about what the Detectives said about the tip: it
was anonymous. Paragraph 8 is more of a legal conclusion,
but it provides context for paragraph 7 and reinforces the fact
that Beal has competent testimony to show that the tip was
indeed anonymous. The Detectives argue, however, that we
cannot rely on the first complaint, because an amended com-
plaint was filed and it omits the critical word “anonymous”
in its version of paragraph 7. They rely on the rule under
which “facts or admissions from an earlier complaint that are
not included in a later complaint cannot be considered on a
motion to dismiss.” Scott v. Chuhak & Tecson, P.C., 725 F.3d 772,
783–84 (7th Cir. 2013). Scott also notes that “where the original
complaint and an amended complaint contain contradictory
or mutually exclusive claims, only the claims in the amended
complaint are considered.” Id. at 784.
For several reasons, however, the Scott rule does not apply
here. First, there is a distinction between an ordinary com-
plaint that serves as a pleading, and a verified complaint. The
former type is what Scott was describing. For pleading pur-
poses, once an amended complaint is filed, the original com-
plaint drops out of the picture. See, e.g., Wellness Community–
National v. Wellness House, 70 F.3d 46, 49 (7th Cir. 1995). But a
verified complaint is not just a pleading; it is also the equiva-
lent of an affidavit for purposes of summary judgment, be-
No. 14-2628 7
cause it “contains factual allegations that if included in an af-
fidavit or deposition would be considered evidence, and not
merely assertion.” Ford v. Wilson, 90 F.3d 245, 246 (7th Cir.
1996). The verified complaint does not lose its character as the
equivalent of an affidavit just because a later, amended com-
plaint, is filed. Boxdorfer v. Thrivent Fin. for Lutherans, No. 1:09-
cv-0109-DFH-JMS, 2009 WL 2448459, at *2 & n.2 (S.D. Ind.
Aug. 10, 2009) (Hamilton, D.J.).
Our situation is a little different from the one in either Ford
or Boxdorfer. In Ford, there was no amended complaint, and so
nothing with which to compare the original verified com-
plaint. In Boxdorfer, there was an amended complaint, but it
was not verified, and so the only verified document before the
court was the original complaint, on which the court relied in
deciding the case. We have two complaints, and both are ver-
ified. This is no more remarkable than having two affidavits
from the same person in a case. There is no rule against mul-
tiple affidavits, and so no rule against multiple verified com-
plaints. In a case similar to ours, where a pro se litigant filed
verified original and amended complaints, the Eighth Circuit
considered both versions in a decision reversing summary
judgment for the defendants. See Hartsfield v. Colburn, 371 F.3d
454, 455–57 (8th Cir. 2004). We will do the same.
The next question is whether the two verified complaints,
as we put it in Scott, contain contradictory or mutually exclu-
sive assertions. The Detectives argue that they do, because the
word “anonymous” is missing from ¶ 7 in the amended com-
plaint. This is not, however, a fair reading of Beal’s complaint.
Shortly after it decided Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), the Supreme Court reaffirmed that “[a] document
8 No. 14-2628
filed pro se is to be liberally construed, … and a pro se com-
plaint, however inartfully pleaded, must be held to less strin-
gent standards than formal pleadings drafted by lawyers.” Er-
ickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). We review
Beal’s complaint with this in mind. First, there is nothing in-
consistent about saying “we have an anonymous tip that you
are selling drugs,” and saying “we received a phone call you
are selling drugs.” At worst, there is a detail missing in the
second version, but the phone call easily could have been
anonymous. Second, the broader context shows that Beal in-
tended no such shift between the original and the amended
complaint. Paragraph 8 of the two versions is practically iden-
tical. There would have been no reason to include it in the
amended complaint if Beal was abandoning his position that
the Detectives told him that the tip was anonymous. Since
there is no inconsistency between the two versions of the ver-
ified complaint, there is no reason why Beal cannot rely on his
initial assertion that he was told that the tip was anonymous.
Moreover, this was not Beal’s only evidence that the tip
was anonymous. He pointed to substantial circumstantial ev-
idence that buttressed his account. For example, the sworn
criminal complaint in the state-court action charging him with
heroin possession said that Strelow and Beller “received an
anonymous tip regarding an individual selling heroin” and
that Beal matched the description provided by “the anony-
mous tipster.” The Detectives argue that the prosecutor was
just mistaken, but that is a jury point, not something that can
be resolved at summary judgment. They also contend that the
prosecutor relied on Strelow’s arrest report, which says only
“we received a tip.” This point, too, might be called to a jury’s
attention but is of little moment here. In response, Beal could
No. 14-2628 9
note that he was arrested on September 11, 2007, and the crim-
inal proceeding did not begin until December 2007. There was
plenty of time for the prosecutor to flesh out the details of the
arrest report with Strelow before the complaint was filed. It is
telling, also, that the Detectives’ reports make no mention of
the use of an informant—that assertion did not enter the pic-
ture until the suppression hearing, which was resolved by a
January 19, 2009, order granting the motion.
Other details do not carry much weight on their own, but
a trier of fact could think that they corroborate Beal’s account.
At the suppression hearing, Beller testified that he took the
tipster’s call, that he was required to write a report on its con-
tents, that he did so, and that the report stated that he knew
the informant. Unfortunately, however (he told the state
court), the report went missing. He explained this awkward
fact by saying “[r]eports get lost once in awhile [sic],” and de-
scribed himself as “flabbergasted” by the disappearance of
this one. Far from attempting to remedy this problem by
providing some other form of corroboration, the prosecutor
refused to identify the informant at the suppression hearing—
a move the Detectives have tried to justify in this court by cit-
ing unspecified “strategic” reasons “that are not part of the
record.”
The bottom line is that there is a genuine issue of fact on
the question whether the tip that led the Detectives to Beal
was anonymous. Even though such questions are resolved by
the court in a suppression hearing in a criminal case, in a civil
action under section 1983 they are subject to the ordinary
rules governing summary judgment. Taking the facts in the
light most favorable to Beal, we must assume that the tip was
anonymous and uncorroborated.
10 No. 14-2628
That takes us directly to Florida v. J.L., supra, 529 U.S. 266.
The first question is whether a trier of fact would be com-
pelled to find that the Detectives were authorized, based on
the knowledge they had, to stop and frisk Beal. If we were to
answer that question in the affirmative, then we would need
to consider whether the additional search of Beal’s pockets af-
ter the initial frisk was permissible. Because we answer it in
the negative, however, we need not address the latter points,
and Beal’s civil suit must go forward.
J.L. reached the Supreme Court from a criminal proceed-
ing in which the defendant was seeking to have evidence sup-
pressed. Its holding, however, is central to the issue before us.
The facts will sound familiar. On October 13, 1995, an anony-
mous caller reported to the police that a young black male
standing at a particular bus stop and wearing a plaid shirt was
carrying a gun. Id. at 268. There was no audio recording of the
tip, and nothing was known about the informant. Despite this
dearth of information, the police responded and found a
young man of that description at the bus stop. They ap-
proached him, immediately ordered him to put his hands up,
frisked him, and seized a gun from his pocket. He was
charged under state law with carrying a concealed firearm
without a license and possessing a firearm while under the
age of 18. At the trial level, he successfully moved to suppress
the gun as the fruit of an unlawful search; the intermediate
appellate court reversed, but the Supreme Court of Florida re-
instated the suppression order. The U.S. Supreme Court af-
firmed that decision.
It began by reaffirming its earlier holding in Alabama v.
White, 496 U.S. 325 (1990), that “an anonymous tip alone sel-
No. 14-2628 11
dom demonstrates the informant’s basis of knowledge or ve-
racity.” Id. at 270 (quoting White, 496 U.S. at 329). The tip in
J.L., it continued, “lacked the moderate indicia of reliability
present in White and essential to the Court’s decision in that
case.” Id. at 271. The indicia in White to which the Court re-
ferred included extensive detail about the suspect and accu-
rate predictions about her future movements. Critically, the
information reliably pointed to the illegal activities at issue.
In contrast, as the Court pointed out, it is no great task to pro-
vide an accurate description of someone standing on a corner.
The Court also rejected a special rule for firearms cases,
using language that foresees Beal’s situation: “If police offic-
ers may properly conduct Terry frisks on the basis of bare-
boned tips about guns, it would be reasonable to maintain un-
der the above-cited decisions that the police should similarly
have discretion to frisk based on bare-boned tips about nar-
cotics. As we clarified when we made indicia of reliability crit-
ical in Adams [v. Williams, 407 U.S. 143 (1972)] and White, the
Fourth Amendment is not so easily satisfied.” Id. at 273.
The Detectives urge that this case differs meaningfully
from J.L., even accepting the facts that favor Beal. First, they
note that they did corroborate the location and description of
the person described in the tip. Second, they assert that tips
are recorded and thus, as in Navarette v. California, 134 S. Ct.
1683 (2014), they should be deemed reliable. Third, they at-
tach significance to the fact that Beal was in an area known for
drug trafficking. Fourth, they rely on Strelow’s testimony that
Beal looked away from him, turned to walk away, and put his
right hand in his right pants pocket. Last, the Detectives said
that the tip referred to Beal by name.
12 No. 14-2628
Once again, while a jury might find that these points sup-
port the Detectives’ actions, it would not be required to do so.
The facts that they corroborated the location, that they knew
the area to be one associated with drug trafficking, and that
the tipster identified Beal by name, do nothing more than the
tip in J.L. accomplished. Here is the Supreme Court’s explana-
tion of why that is insufficient:
An accurate description of a subject’s readily ob-
servable location and appearance is of course reliable
in this limited sense: It will help the police correctly
identify the person whom the tipster means to accuse.
Such a tip, however, does not show that the tipster has
knowledge of concealed criminal activity. The reason-
able suspicion here at issue requires that a tip be relia-
ble in its assertion of illegality, not just in its tendency
to identify a determinate person.
529 U.S. at 272. The missing link here is any indicium of reli-
ability related to the assertion of illegality. We have not yet
reached the point at which every person found in an area
known for drug trafficking can be stopped and frisked, just
because the person happens to be there.
That leaves the Detectives’ second and fourth points,
which we take in turn. In Navarette, the Supreme Court con-
sidered the question whether a call to the 911 service, coupled
with some effort by the police to corroborate the caller’s infor-
mation, was enough to justify a traffic stop for suspicion of
driving while intoxicated. The 911 caller reported that a vehi-
cle had run her off the road. The caller furnished a detailed
description of the vehicle, complete with license plate num-
ber. A short time later, in an area consistent with the 911
caller’s information, the state police found the suspect vehicle
No. 14-2628 13
(a pickup truck) and pulled it over. As they approached the
truck, they thought they smelled marijuana. They were cor-
rect: a search of the truck revealed some 30 pounds of mariju-
ana in the truck bed. Arrests and prosecution followed, and
the defendants moved to suppress the marijuana based on the
J.L. principle.
The Supreme Court upheld the decision of the California
Supreme Court, which had found the stop justified by reason-
able suspicion. The Court found this case closer to White than
to J.L., because of the presence of details that corroborated the
criminal aspect of the anonymous tip. It found the fact that
the caller was an eyewitness reporting an immediate traffic
violation telling; and it also found “the caller’s use of the 911
emergency system” to be an “indicator of veracity.” Navarette,
134 S. Ct. at 1689. Even if, at first glance, the caller might ap-
pear to be anonymous, there are features of the 911 system
that permit a later identification. Calls can be traced and rec-
orded. For some time cellular carriers have been required to
relay the caller’s telephone number to the 911 dispatcher and
to identify her geographic location. The Court concluded that
“[g]iven the foregoing technological and regulatory develop-
ments, however, a reasonable officer could conclude that a
false tipster would think twice before using such a system.
The caller’s use of the 911 system is therefore one of the rele-
vant circumstances that, taken together, justified the officer’s
reliance on the information reported in the 911 call.” Id. at
1690.
No one in the present case, however, asserted that the tip-
ster used Kenosha’s 911 system. The emergency nature of the
911 call on which the Navarette Court relied is therefore miss-
14 No. 14-2628
ing. In addition, no evidence in the record suggests that Ke-
nosha has a dedicated tip line (unless the mysterious Gang
Unit telephone functions this way), or if it does, that it has the
tracing capabilities that are mandated for 911 services. At
most, we could assume that the police department has a re-
cording of an anonymous male or female voice. That is not
enough, in our view, to trigger Navarette’s rule.
As for Strelow’s description of Beal’s behavior, all that
needs to be said is that Beal disputes this account. Beal stated
at his deposition that his right hand was already in his pocket
when the Detectives arrived, and that he was cooperative
throughout the encounter. It does not help the Detectives that
Strelow also testified that he and Beller were trying to sneak
up on Beal, and that Beal did not notice the unmarked car’s
arrival. Even if Beal did turn away from the Detectives for a
moment as he stood in his aunt’s driveway, it is hard to find
anything suspicious about that. Beal’s testimony, we add, is
obviously competent to describe what he himself was doing.
IV
Once again, the question before us is not whether the evi-
dence seized from Beal as a result of the Detectives’ stop-and-
frisk should be suppressed. That question arose in the state
criminal proceeding, and it was resolved favorably to Beal.
(The Detectives are not bound by that ruling, since they are
being sued in their individual capacity; but it bears noting
that the state court’s conclusion is of no help to them.) The
question we must resolve is whether summary judgment in
the Detectives’ favor in this section 1983 suit was proper. We
conclude that it was not. The validity of their decision to stop
Beal will depend on the trier of fact’s resolution of a number
of disputed facts: Was the tip anonymous? Did Beal take any
No. 14-2628 15
action that was sufficiently suspicious to justify the stop? Did
the Detectives have any other information that provided at
least reasonable suspicion to stop (and then frisk) Beal? The
existence of these disputed facts is also enough to defeat the
Detectives’ assertion of qualified immunity. See, e.g., Johnson
v. Jones, 515 U.S. 304 (1995).
We make no predictions about the ultimate outcome of a
trial. For present purposes, it is enough to say that summary
judgment for the Detectives should not have been granted.
The judgment of the district court is REVERSED and the case is
REMANDED for further proceedings consistent with this opin-
ion.