NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 28, 2010*
Decided July 28, 2010
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09‐1130
LOUIS R. HARRIS, JR., Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:05‐cv‐889‐WTL‐JMS
KEVIN SMITH, et al.,
Defendants‐Appellees. William T. Lawrence,
Judge.
O R D E R
Louis Harris, Jr., was wanted on outstanding warrants and for questioning in a
child‐molestation investigation, and, after a lengthy chase culminating in an attack by a
police dog, he finally surrendered. In this lawsuit under
42 U.S.C. § 1983, Harris alleges
that various officers from the Anderson and Elwood, Indiana, Police Departments violated
his rights under the Fourth Amendment by illegally entering his home and then using
excessive force to arrest him. The district court granted summary judgment for all but one
defendant, and a jury found in favor of the final officer. On appeal Harris challenges the
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 09‐1130 Page 2
grant of summary judgment as well as the district court’s denial of his motion in limine to
exclude from trial evidence regarding the child‐molestation investigation. We affirm the
district court’s judgment in all respects.
Harris was suspected in Missouri of molesting his girlfriend’s daughter, but the
investigation was suspended when Harris, his girlfriend, and her daughter abruptly left
town to avoid the authorities. After Harris’s girlfriend, Sheila Garrett, used food stamps in
Anderson, Indiana, the state’s Division of Family and Children learned of their
whereabouts. The agency told detective Kevin Smith of the Anderson Police Department
about the suspected child abuse, gave him the address where it believed the family was
staying, and requested that he investigate. Smith spoke with a detective from Missouri who
told him that the local prosecutor expected a warrant to soon issue, but upon discovering
that Harris had outstanding warrants in Indiana for contempt of court and failure to appear,
Smith decided it would be prudent to arrest Harris immediately.
Smith drove to the address that the Division of Family and Children had provided
and saw a van registered to Garrett. When he returned later, he saw a woman matching
Garrett’s description leave the van and enter the home, so he approached the door,
accompanied by a few other officers and a police dog. Garrett answered, along with two
other women residing there. Garrett denied that Harris was inside but, according to the
defendants, one of the three women consented to a search of the house. At that point, two
officers went inside, along with a restrained police dog, providing a canine warning before
entering. Harris emerged from the bathroom, identified himself, and began to drop to his
knees as directed when the officers told him he was being placed under arrest for the
outstanding warrants. But after briefly feigning surrender, Harris abruptly ran out the back
door. The officers released the police dog to pursue him, but he managed to escape and also
evaded an additional officer who later pursued him by car. He was not apprehended until
later that evening when Officer Lenny Popp of the Elwood, Indiana, Police
Department—who was monitoring the chase on his police scanner and knew that Harris
was suspected of child molestation and wanted on outstanding warrants—caught him in
the woods with the help of another police dog.
Harris filed suit under § 1983 against Detective Smith and the other Anderson police
officers at the scene of the attempted arrest at his residence, alleging that they illegally
entered the home and used excessive force once inside. He also sued Officer Popp, alleging
that Popp permitted the police dog to attack him even after he had submitted to arrest,
resulting in serious injuries to his arm. The district court granted summary judgment for
each of the Anderson police officers but permitted Harris to go to trial on his claim against
Popp, with the assistance of counsel recruited by the court to represent him. Harris filed a
motion in limine to exclude from trial any evidence regarding the child‐molestation
No. 09‐1130 Page 3
investigation and subsequent conviction. The district court excluded evidence of the
conviction but permitted Popp to introduce evidence of the investigation. The jury found in
Popp’s favor, and this pro se appeal followed.
We begin with Harris’s claims against the Anderson police officers, reviewing de
novo the district court’s grant of summary judgment in their favor. See Johnson v. Scott,
576
F.3d 658, 660 (7th Cir. 2009). Harris first renews his argument that it was illegal for the
defendants to enter the house to arrest him. An officer may enter a residence to execute a
valid arrest warrant if the suspect lives there and the officer has “reason to believe” he is at
home. Payton v. New York,
445 U.S. 573, 603 (1980); United States v. Jackson,
576 F.3d 465,
467‐68 (7th Cir. 2009). Harris concedes that the outstanding warrants were valid, but he
asserts that the officers had no reason to believe that he was inside the home because
Garrett denied that he was there and they had no information otherwise. The officers had
reason to believe that Harris was living at the residence: The Indiana Division of Family and
Children told Officer Smith that Harris, Garrett, and her daughter were staying together at
the Anderson address, and Smith surveilled the house earlier in the day and saw Garrett
drive up in her van and go inside. Whether this information also supplied reason to believe
that Harris himself was present, despite Garrett’s insistence otherwise, is a separate
question, see, e.g., El Bey v. Roop,
530 F.3d 407, 416‐19 (6th Cir. 2008); United States v. Bervaldi,
226 F.3d 1256, 1263‐67 (11th Cir. 2000), but one we need not answer. The defendants
provided evidence at summary judgment that one of the female residents present that day
consented to their entry, and Harris did not offer any contrary evidence to raise a genuine
factual dispute on the issue. When police receive consent to enter a home to make an arrest,
their entry is reasonable and does not violate the Fourth Amendment. United States v. Walls,
225 F.3d 858, 862 (7th Cir. 2000).
Harris also renews his argument that the Anderson police officers used excessive
force in attempting to arrest him. He asserts that, when he first emerged from the
bathroom, one officer pointed a shotgun at him with “extreme aggression,” while the police
dog, though restrained, “lunged” toward him. In assessing whether the use of force during
an arrest was proper, we ask whether the officer’s actions were objectively reasonable in
light of the conditions he faced. Graham v. Connor,
490 U.S. 386, 397 (1989); Johnson,
576 F.3d
at 660. But before determining whether an officer used excessive force, we must first be
satisfied that a seizure took place, meaning that the party challenging the use of force
actually yielded to the officer’s authority. California v. Hodari D.,
499 U.S. 621, 626 (1991);
McCoy v. Harrison,
341 F.3d 600, 605 (7th Cir. 2003). “[A] fleeing suspect—even one who is
confronted with an obvious show of authority—is not seized until his freedom of movement
has been terminated by an intentional application of physical force or by the suspect’s
submission to the asserted authority.” Kernats v. OʹSullivan,
35 F.3d 1171, 1178 n.4 (7th Cir.
1994); see Steen v. Myers,
486 F.3d 1017, 1021 (7th Cir. 2007); Reeves v. Churchich, 484 F.3d
No. 09‐1130 Page 4
1244, 1252‐53 (10th Cir. 2007). Here, Harris was confronted with a display of authority and
momentarily feigned surrender by beginning to drop to his knees, but he quickly bolted for
the door and managed to evade police until Officer Popp caught him later in the woods. A
defendant who fakes compliance with an officer’s orders and then flees the scene has not
been seized, let alone unreasonably so, for purposes of the Fourth Amendment. See United
States v. Baldwin,
496 F.3d 215, 218‐19 (2d Cir. 2007); United States v. Valentine,
232 F.3d 350,
359 (3d Cir. 2000); United States v. Washington,
12 F.3d 1128, 1132 (D.C. Cir. 1994).
Moreover, the right to make an arrest “necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it,” Graham,
490 U.S. at 396, and
the defendants’ decision to enter Harris’s home with a restrained police dog after warning
that they were doing so and to briefly display a weapon as Harris emerged suddenly from
the bathroom was not excessive. Any threat of violence from the shotgun or the dog, which
was restrained until Harris fled, lasted but a few moments and was reasonable given
Harris’s previous flight from law enforcement and his possible involvement in a crime of
aggression.
We turn, then, to Harris’s argument regarding Officer Popp. Harris does not renew
any evidentiary objections he may have made at trial or challenge the jury’s verdict in favor
of Popp; he argues only that the district court erred in denying his pretrial motion to
exclude evidence of the child‐molestation investigation against him. Because “decisions
regarding the admission and exclusion of evidence are peculiarly within the competence of
the district court,” we review such decisions only for abuse of discretion. Adams v. City of
Chicago,
469 F.3d 609, 612 (7th Cir. 2006) (internal citation omitted). On review, the relevant
inquiry is not how we would have decided the evidentiary issue in the first instance but,
rather, whether any reasonable person could agree with the district court’s ruling. Griffin v.
Foley,
542 F.3d 209, 217‐18 (7th Cir. 2008).
Federal Rule of Evidence 403 permits the exclusion of evidence if its probative value
is substantially outweighed by, among other things, the danger of unfair prejudice.
Evidence of child molestation can pose a significant risk of prejudice, see, e.g., United States
v. Ham,
998 F.2d 1247, 1252 (4th Cir. 1993) (“[N]o evidence could be more inflammatory or
more prejudicial than allegations of child molestation.”), and in some cases the relevance of
such evidence will be so minimal that its prejudicial effect is not justified, see
id. at 1253
(excluding evidence of child molestation and other inflammatory allegations where it was
relevant only as indirect proof of motive for murder and would have made the motive only
“slightly more likely”). But the relevant inquiry under Rule 403 is whether the danger of
prejudice substantially outweighs the probative value of the evidence, and, in light of the
deferential nature of our review, the district court’s decision to admit the evidence here was
not an abuse of discretion. The reasonableness of an officer’s use of force depends on the
No. 09‐1130 Page 5
totality of circumstances confronting him, “including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officer[] or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham,
490
U.S. at 396; see Abdullahi v. City of Madison,
423 F.3d 763, 768 (7th Cir. 2005). Here, Officer
Popp had learned that Harris was a suspected child molester on the lam who was wanted
on other outstanding arrests and had successfully evaded police by both car and foot. Each
of these details was probative of the totality of circumstances confronting Popp when he
entered the woods in pursuit of Harris and thus the reasonableness of his use of a police
dog. We therefore conclude that the district court was within its discretion to permit the
jury to hear evidence of the suspected crime that Officer Popp himself could take account of
during the arrest.
We have considered Harris’s remaining arguments, but they lack merit and do not
warrant further discussion. The judgment of the district court is AFFIRMED.
