Michael Seiser v. City of Chicago , 762 F.3d 647 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1985
MICHAEL SEISER,
Plaintiff-Appellant,
v.
CITY OF CHICAGO and DEBRA KIRBY,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 2353 — James F. Holderman, Judge.
ARGUED DECEMBER 13, 2013 — DECIDED AUGUST 12, 2014
Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Chicago police officer Michael Seiser
was arrested and subjected to a breathalyzer examination after
several witnesses reported seeing him drinking from an
alcoholic beverage container while driving his personal vehicle.
After the breathalyzer detected no alcohol in his bloodstream,
he was cited for driving a motor vehicle with an open container
of alcohol in the passenger compartment. That charge was
dropped after testing of the contents of the container indicated
2 No. 13-1985
that it did not contain alcohol. Seiser filed suit against the City
of Chicago (the “City”) and the police deputy superintendent
who had ordered him to be processed criminally, alleging
various Fourth Amendment and state-law claims. R. 48; see
Seiser v. City of Chicago, No. 12 C 2353, 2013 WL 1809916 (N.D.
Ill. Apr. 29, 2013). The district court entered summary judg-
ment in favor of the defendants on all claims. Seiser appeals,
contending that probable cause did not support either the
order that he undergo a breathalyzer examination or the open-
container citation. We affirm.
I.
On the afternoon of March 29, 2011, Officer Seiser was
driving his private automobile between Tilden Career Commu-
nity Academy High School in Chicago’s Canaryville neighbor-
hood to the nearby intersection of 50th Street and Union
Avenue, where Seiser was assigned to stand post until 4:00
p.m. as part of the City’s Operation Safe Schools program.
Seiser was on duty and in uniform as a police officer.1
Seiser was making an effort to consume extra water as part
of a weight-loss program. Toward that end, he had a large
bottle of water with him in the car and in fact was drinking
from it while en route to his assigned post. In retrospect, his
choice of bottle was not the most prudent: the bottle was a
1.75-liter T.G.I. Friday’s Mudslide bottle which, when sold, had
1
Seiser’s work with the school safety program was secondary employ-
ment, but there is no dispute that he was nonetheless considered to be on
duty as a police officer while engaged in that work.
No. 13-1985 3
contained an alcoholic beverage and which still bore a label
that read, “The liquor is in it.”
Gail Glassford (a private employee of the Safe Schools
program), her mother Kathleen Glassford, and Roseann
Anderson all saw Seiser drinking from the bottle as he drove
by them in the 4800 block of South Union Avenue. All per-
ceived the bottle as one containing liquor based on the bottle’s
size, shape, and labeling.
Gary Anderson, a private school security guard and
Roseann’s brother, was stationed at the same intersection (50th
Street and Union Avenue) as Seiser was. Roseann called her
brother and asked him to obtain the license plate number from
Seiser’s car, which Seiser had just parked across the street from
where Gary was standing. As he was talking with Roseann,
Gary could see the driver of the car drinking from what looked
like a bottle of vodka. Gary subsequently walked across the
street, copied down the plate number, and was about to return
to his post when Seiser emerged from the car and confronted
him. Gary would later report that Seiser staggered as he exited
the vehicle and that his breath smelled of alcohol. As Gary
used his hand-held radio to summon his supervisor, Seiser got
back into his car and drove back to the high school.
At 2:18 p.m., Kathleen Glassford called 911 to report that
she had seen someone driving in the vicinity of 50 Street and
Union Avenue drinking vodka while driving; she described the
car and supplied its license plate number. When police checked
the plate number, they discovered the car was registered to
Seiser. Kathleen Glassford placed another call to the police at
4 No. 13-1985
2:29 p.m. to add that the driver of the car was a police officer
and to request that a police supervisor respond to her report.
Sergeant John Verta of the Chicago Police Department
(“CPD”) was dispatched to investigate the incident. He spoke
with both Gail Glassford and Roseann Anderson, who told him
they had seen a police officer driving while drinking from a
gallon-sized bottle of vodka. They also directed him to the
intersection several blocks away, where Seiser’s automobile
was once again parked.
As Verta approached Seiser’s vehicle from the passenger
side, he saw on the front passenger seat a large bottle with the
seal broken and with clear liquid inside. Although Verta could
not read the bottle’s red and white label, which was turned
toward the seat, he believed based on the size of the bottle and
what Glassford and Anderson had told him that it contained
alcohol. Verta summoned Seiser, who was standing not far
away, and asked him what was in the bottle. Seiser replied,
“What bottle?” When Verta indicated the bottle inside of the
car, Seiser—by his own account, which we credit—said that the
bottle did not contain alcohol. But when Verta asked him to
open the car and turn the bottle over to him, Seiser demurred
after ascertaining that Verta had neither a warrant nor an
signed affidavit from a complaining witness. “No, get a
warrant. I know my rights,” he told Verta. Verta reiterated his
request but again met with Seiser’s refusal. When Verta related
to Seiser what the witnesses had told him, Seiser offered to
accompany Verta back to the station and submit to a
breathalyzer examination in order to demonstrate that the
complaint was false. Verta contacted his watch commander,
No. 13-1985 5
Captain Robert Johnson, who instructed Verta to bring Seiser
into the station. Verta drove Seiser to the Ninth District station.
At this point, the Internal Affairs Division (“IAD”) of the
CPD became involved in the matter. After the call from Verta,
Johnson contacted IAD Lieutenant David Naleway to inform
him that a police officer had reportedly been drinking while on
duty. Naleway in turn dispatched two IAD officers—Sergeants
Matthew Price and Terrance Cochran—to the Ninth District
station. After Price was briefed on the allegations against
Seiser, he visited the scene of the incident and conducted his
own investigation. He spoke with Gail Glassford as well as
Gary and Roseann Anderson, all three of whom reiterated that
they had seen a uniformed police officer drinking from what
appeared to be bottle of alcohol while driving. Roseann
Anderson signed an affidavit to that effect. Price also examined
Seiser’s vehicle (which was still parked near the high school)
and saw the large bottle in the front seat. Price too thought that
the bottle was a liquor bottle, and he could see that it contained
a clear liquid. An evidence technician photographed the bottle
in situ.
Price reported back to Naleway and conveyed what the
witnesses had told him and what he had seen in Seiser’s car.
That information was communicated up the chain of command
to Deputy Superintendent Debra Kirby, who headed the CPD’s
Bureau of Professional Standards. Kirby’s assigned duties
included oversight of the IAD, among other divisions. Kirby
instructed Rivera to have Seiser processed criminally for DUI
(i.e., arrested) at the Ninth District, and to recover the bottle
from Seiser’s car. She also directed that the IAD conduct an
6 No. 13-1985
administrative investigation into the incident once the criminal
investigation was complete.
Once informed of Kirby’s orders, Johnson briefed officers
Brian Madsen and Andrew Kral and assigned them to proceed
with the criminal investigation and processing of Seiser. They
met Seiser at the Ninth District station and at 4:45 p.m. began
to process him. They administered field sobriety tests, which
Seiser passed. They then ordered him to submit to a breatha-
lyzer test, which the record indicates took place at 5:07 p.m.
(Although the defendants aver that Seiser submitted to the test
voluntarily, and it is agreed that Seiser had previously sug-
gested the breathalyzer to Verta, Seiser contends that he
withdrew his consent once he learned that he was being
arrested. In any case, he submitted to the breathalyzer.) The
test result indicated a blood-alcohol content of 0.000. An arrest
report was completed, and upon reviewing it, Captain Johnson
ordered that Seiser be released without a DUI charge. Ser-
geants Verta and Cochran decided that, in view of the open
liquor bottle in his vehicle, Seiser should be cited for an open-
container violation, and Madsen wrote the citation accordingly.
At that point in the process, the IAD administrative
investigation commenced. Sergeants Cochran and Price
solicited Seiser’s consent to search his vehicle and to retrieve
the bottle, but Seiser refused. The two sergeants then gave
Seiser a written order to allow the recovery of the bottle, and
Seiser complied with the order: he was driven back to his
vehicle, where he unlocked the car and handed over the bottle.
The bottle and its contents were inventoried, and the latter
were sent to the Illinois State Police laboratory for analysis.
No. 13-1985 7
On April 29, 2011, the laboratory issued a report indicating
that the contents of the bottle contained no alcohol. At a court
hearing on the open-container charge on May 18, Madsen
advised the Assistant State’s Attorney of the negative labora-
tory result. The court subsequently dismissed the charge.
Roughly one year later, Seiser filed the instant suit against
Kirby and the City, asserting claims under both section 1983
and state law. Among the claims were the two at issue in this
appeal: a Fourth Amendment claim against Kirby founded on
the contention that the involuntary breathalyzer amounted to
an illegal search, as there was no probable cause to believe that
it would yield evidence of a crime and no warrant authorizing
the search; and a state-law malicious prosecution claim against
the City premised on the contention that there was no probable
cause to believe Seiser had violated the open-container law.
The district court entered summary judgment in favor of
the defendants on both of these claims. R. 48. The court rejected
the wrongful search claim, reasoning that on the facts pre-
sented, the police had probable cause to arrest Seiser for
driving under the influence and therefore grounds to adminis-
ter the breathalyzer test. The court pointed out that three
witnesses had told Sergeant Price they had seen Seiser drink-
ing from what appeared to be a bottle of alcohol while driving,
and Roseann Anderson had signed an affidavit to that effect.
Gary Anderson had also reported smelling alcohol on Seiser’s
breath. Verta had found Seiser to be uncooperative when asked
about the bottle, and Seiser had refused to turn the bottle over
to Verta when asked. This evidence, in the district court’s view
supported a reasonable belief that Seiser had operated a motor
vehicle while under the influence of alcohol, notwithstanding
8 No. 13-1985
certain discrepancies in the witness accounts and the fact that
Verta did not observe any signs of intoxication in Seiser’s
appearance and behavior. R. 48 at 8–9. Moreover, it was
reasonable for the police to administer the breathalyzer
without first obtaining a warrant, in the court’s view, given the
speed at which alcohol leaves the bloodstream. R. 48 at 9.
The court likewise rejected the malicious prosecution claim,
reasoning that the open-container charge was supported by
probable cause. The bottle retrieved from Seiser’s vehicle bore
a label indicating that it contained liquor, and until the contents
of the bottle were analyzed by a laboratory, the police had no
way of knowing that the bottle did not, in fact, contain alcohol.
R. 48 at 12. At that point, the charge against Seiser was dis-
missed. But until the testing proved negative, the City was
justified in pursuing the charge. R. 48 at 12–13.
II.
We review the district court’s summary judgment decision
de novo. E.g., Townsend v. Cooper, No. 12-3620, — F.3d —, 2014
WL 3511731, at *5 (7th Cir. Jul. 17, 2014). We construe the
evidence in the light most favorable to Seiser, granting him the
benefit of all reasonable inferences and resolving all credibility
disputes in his favor. See id. In this case, the pertinent facts are
largely undisputed. The dispute, instead, focuses on whether
the police (and Kirby in particular) had reasonable grounds to
believe that Seiser had been driving while intoxicated and thus
to subject him to the breathalyzer test; whether exigent
circumstances justified the administration of that test without
a warrant; and whether the City had probable cause to charge
Seiser with an open-container violation.
No. 13-1985 9
A. Probable cause to administer the breathalyzer test
A breathalyzer examination constitutes a search implicating
the Fourth Amendment. See Maryland v. King, 133 S. Ct. 1958,
1969 (2013) (citing Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S.
602, 616, 109 S. Ct. 1402, 1413 (1989)). As such, it must be
supported by probable cause to believe that the test will yield
evidence of a crime. See Illinois v. Gates, 462 U.S. 213, 238, 103
S. Ct. 2317, 2332 (1983); United States v. Sutton, 742 F.3d 770, 773
(7th Cir. 2014); Herzog v. Vill. of Winnetka, Ill., 309 F.3d 1041,
1044 (7th Cir. 2002). If the Chicago police had probable cause
to believe that Seiser had been driving while under the
influence of alcohol, then they had a substantial basis on which
to believe that the breathalyzer test would yield evidence of
that offense. See Schmerber v. California, 384 U.S. 757, 770, 86
S. Ct. 1826, 1835 (1966). A police officer has probable cause to
believe that an individual has committed an offense (and to
make an arrest) if the facts and circumstances known to him
would warrant a reasonable person believing that the individ-
ual has committed or is committing a crime. E.g., Williamson v.
Curran, 714 F.3d 432, 441 (7th Cir. 2013). The belief need not
rise to the level of certainty. Abbott v. Sangamon Cnty., Ill., 705
F.3d 706, 714 (7th Cir. 2013).
[A]lthough it requires something more than a hunch,
probable cause does not require that it was more likely
than not that the arrestee was engaged in criminal
activity—the officer’s belief that the arrestee was
committing a crime need only be reasonable.
Id. (citing, inter alia, Henry v. United States, 361 U.S. 98, 102, 80
S. Ct. 168, 171 (1959)). Where, as here, the officers involved in
10 No. 13-1985
an investigation were in communication with one another, we
may, in assessing probable cause, attribute to one officer the
facts known to his fellow officers. E.g., United States v. Lyons,
733 F.3d 777, 782 n.1 (7th Cir. 2013), cert. denied, 134 S. Ct. 1779(2014); United States v. Sawyer, 224 F.3d 675, 680 (7th Cir. 2000).
This means that we may invest Kirby with knowledge of the
facts known to her subordinate officers.
The general rule is that when the police have information
from a reasonably credible witness that a person has commit-
ted a criminal act, they may rely on that witness’s account,
even when the suspect himself denies wrongdoing. E.g.,
Williamson, 714 F.3d at 441. The police need not exhaust all
available avenues of investigation, including those that might
potentially exculpate the suspect. Id.
In this case, Kirby had reports from three credible witnesses
indicating that Seiser had been drinking while driving his
personal vehicle. Gail Glassford and Roseann Anderson both
told Verta, and then they along with Gary Anderson told Price,
that they had seen Seiser drinking from a large liquor bottle,
and Gary Anderson additionally informed Price of the confron-
tation he had with Seiser while copying Seiser’s license plate
number, during which he detected the odor of alcohol on
Seiser’s breath. In addition, both Verta and Price had inspected
Seiser’s vehicle and had seen the bottle in the front seat of the
car; to both it appeared to be an alcoholic beverage container.
Both also saw that it contained a clear liquid inside; and Verta
could see that the seal on the bottle had been broken. And
when Verta had asked Seiser about the bottle, Seiser had been
No. 13-1985 11
evasive, first replying “What bottle?”and then twice refusing
Verta’s requests to inspect it.
We note in this regard that Illinois courts have repeatedly
held that a police officer may reasonably infer from the
discovery of a beer or liquor container—even an empty
container—in or near an individual’s car that the bottle had
contained alcohol and had been open while the defendant was
driving. See People v. Miller, 791 N.E.2d 1145, 1148 (Ill. App. Ct.
2003), abrogated on other grounds by People v. Van Schoyck, 904
N.E.2d 29, 32–33 (Ill. 2009); People v. Gray, 420 N.E.2d 856, 859
(Ill. App. Ct. 1981); People v. Zeller, 367 N.E.2d 488, 491 (Ill.
App. Ct. 1977); Stanford v. Glowacki, No. 12 C 7502, 2013 WL
6447947, at *2 (N.D. Ill. Dec. 6, 2013); Guidry v. Boyd, No. 06 C
1600, 2007 WL 2317174, at *9 (N.D. Ill. Jul. 17, 2007); see also
Branch v. Gorman, 742 F.3d 1069, 1073 (8th Cir. 2014) (“Courts
routinely find probable cause under open container laws when
police officers observe empty bottles in vehicles.”) (collecting
cases). It was no less reasonable in this case for the investigat-
ing officers (and Kirby) to infer that the clear liquid in the
liquor bottle observed in Seiser’s car was alcohol as opposed to
water. And given the multiple witnesses who saw Seiser
drinking from the bottle as he drove by them, it was equally
reasonable to believe that he had been drinking alcohol while
driving.
As Seiser points out, there were certain inconsistencies or
inaccuracies in the witness accounts which would have been
apparent to the officers at the time. The bottle wasn’t labeled
“vodka,” as Gail Glassford had thought. Nor was it a gallon-
sized container, as multiple witnesses, including Verta and
12 No. 13-1985
Price, had described it. (The bottle was roughly half that size.)
But these are at worst minor discrepancies. There is no ques-
tion that the bottle was, in fact, a liquor bottle, that it was
labeled as such, and that it was relatively large. Verta and Price
had both confirmed the presence of the bottle in Seiser’s car.2
Nor did the negative results of the field sobriety tests that
Kral and Madsen administered negate the possibility that
Seiser had been drinking. Of course, at the point that those
tests were administered, a substantial amount of time had
passed since Seiser had been seen driving while drinking from
the liquor bottle. Recall that Kathleen Glassford made her first
call to the police reporting the incident at 2:18 p.m.; Madsen
and Kral did not begin to process Seiser criminally until 4:45
p.m., nearly two and one-half hours later. So it would be fair to
assume that if Seiser had been drinking alcohol, his degree of
intoxication would have decreased and his ability to pass such
tests would have increased during that time. As we noted in
Kraushaar v. Flanigan, 45 F.3d 1040, 1052 (7th Cir. 1995), the
passage of time coupled with the prospect of arrest will
2
One of the inconsistencies that Seiser has highlighted concerns the speed
at which he had reportedly been driving when Glassford and Roseann
Anderson saw him drinking from the liquor bottle. Although it does appear
in retrospect that they have made inconsistent statements as to whether
Seiser was driving above or below the speed limit, the record does not
indicate that they made inconsistent statements to the police officers who
investigated the incident, or that the officers otherwise would have been
aware of any such inconsistency. In any case, the speed at which Seiser was
driving is a point collateral to whether or not he was drinking alcohol while
driving.
No. 13-1985 13
naturally have a sobering effect on a person who has been
drinking.
More to the point, the fact that an individual is able to
complete one or more field sobriety tests successfully (the
parties devote no attention in their briefs to the types and
significance of the particular tests administered to Seiser) does
not negate probable cause when other circumstances give rise
to a reasonable belief that the individual is intoxicated. See, e.g.,
State v. Bell, 429 S.W.3d 524, 531–36 (Tenn. 2014) (so holding
after surveying case law from other jurisdictions on this point).
Each case necessarily must be assessed on its own facts, given
that probable cause turns on the totality of the circumstances
confronting the officer. E.g., Gibbs v. Lomas, No. 13-3121, — F.3d
—, 2014 WL 2736066, at *5–*6 (7th Cir. June 17, 2014). Given the
other circumstances we have highlighted, the fact that Seiser
was able to pass the field sobriety tests administered to him did
not foreclose probable cause to believe that he had been
driving while intoxicated some two and one-half hours earlier
(and thus to believe that a breathalyzer test would yield proof
of his intoxication).
Similarly, the fact that none of the officers who had inter-
acted with Seiser after the incident—including Verta, Kral, and
Madsen—said they had noticed the scent of alcohol on Seiser’s
breath or observed overt signs of intoxication does not negate
probable cause. The key facts that gave rise to the reasonable
suspicion that Seiser had been driving while intoxicated were
the witness sightings of him drinking from a liquor bottle while
driving and the confirmation afterward by Verta and Price that
there was an open liquor bottle in the front seat of Seiser’s car.
Morever, Gary Anderson, who reported having a confronta-
14 No. 13-1985
tion with Seiser after he copied down Seiser’s license plate
number, indicated that he had smelled alcohol on Seiser’s
breath. The police had no reason to disregard Gary Anderson’s
statement in this regard, even if the other officers did not
themselves notice the scent of alcohol.
In sum, under the circumstances confronting Kirby, there
was probable cause to administer the breathalyzer. Given the
eyewitness accounts and the presence of a bottle labeled as
containing an alcoholic beverage in Seiser’s car, a reasonable
person would have believed that Seiser had committed a DUI
offense. It was therefore reasonable to believe that the breatha-
lyzer would yield evidence of that crime.
B. Qualified immunity and administering the breathalyzer
without a warrant
Because a breathalyzer examination is a form of search, a
warrant for the test ordinarily is required, absent, for example,
the presence of exigent circumstances that make obtaining a
warrant impractical. See Missouri v. McNeely, 133 S. Ct. 1552,
1560–63 (2013); Schmerber, 384 U.S. at 770–71, 86 S. Ct. at1835–36.
The Supreme Court’s decision in Schmerber recognized that,
in view of the natural metabolization of alcohol over time and
the delays that can occur in obtaining a warrant, the need to
timely ascertain an individual’s blood-alcohol level may
present an exigency that justifies a warrantless examination.
The officer in the present case … might reasonably have
believed that he was confronted with an emergency, in
which the delay necessary to obtain a warrant, under
No. 13-1985 15
the circumstances, threatened “the destruction of
evidence,” Preston v. United States, 376 U.S. 364, 367, 84
S. Ct. 881, 883. We are told that the percentage of
alcohol in the blood begins to diminish shortly after
drinking stops, as the body functions to eliminate it
from the system. Particularly in a case such as this,
where time had to be taken to bring the accused to a
hospital and to investigate the scene of the accident,
there was no time to seek out a magistrate and secure a
warrant. Given these special facts, we conclude that the
attempt to secure evidence of blood-alcohol content in
this case was an appropriate incident to petitioner’s
arrest.
Ibid.In the wake of the Schmerber decision, the Illinois Appellate
Court, like a number of other courts, appears to have con-
cluded that the natural dissipation of alcohol from the blood-
stream, coupled with the delay associated with seeking a
warrant, constituted a per se exigency that routinely justified
the warrantless administration of a breathalyzer. Thus, in
People v. Carey, 898 N.E.2d 1127, 1134 (Ill. App. Ct. 2008), the
court—without addressing how much time had passed before
the defendant police officer was ordered to take a breathalyzer
test or how much additional delay an attempt to obtain a
warrant likely would have caused—said simply, “[A]lcohol in
the bloodstream begins to naturally dissipate shortly after
drinking stops and therefore the delay in obtaining a search
warrant would have risked the loss of evidence.” Id. (citing
16 No. 13-1985
Schmerber, 384 U.S. at 770–71, 86 S. Ct. at 1835–36).3 The district
court in this case employed the same reasoning in concluding
that the breathalyzer was a reasonable search. R. 48 at 9. Courts
from other jurisdictions, by contrast, had held that whether
there were “special facts” (see Schmerber, 384 U.S. at 771, 86
S. Ct. at 1836) apart from the evanescent nature of blood-
alcohol content establishing an exigency must be evaluated on
a case-by-case basis. See McNeely, 133 S. Ct. at 1558 n.2 (collect-
ing cases on both sides of this division of authority).
Subsequent to the district court’s decision in this case, the
Supreme Court in McNeely resolved the split against a rule of
per se exigency in blood-alcohol cases. Relying in part on the
fact that technological advances have made it possible to obtain
warrants more expeditiously through such means as tele-
phone, radio, email and other electronic communications, and
videoconferencing, the Court reasoned that the dissipation of
alcohol does not always present an exigency justifying the
warrantless administration of a blood-alcohol test. 133 S. Ct. at
1560–61. Instead, the circumstances must be evaluated on a
3
Carey was decided by the First District appellate court, which has
jurisdiction over Chicago. Courts in other districts had held similarly. See
People v. Ayres, 591 N.E.2d 931, 933 (Ill. App. Ct. 3d Dist. 1992) (“We note
that the evidence was evanescent in nature because alcohol in a DUI
suspect’s blood begins to dissipate shortly after the individual stops
consuming alcohol. There is no time to seek out a magistrate to obtain a
search warrant.”) (citing Schmerber); People v. Byrd, 574 N.E.2d 1269, 1271
(Ill. App. Ct. 4th Dist. 1991) (“[T]he evidence is evanescent in nature.
Alcohol in the bloodstream of a DUI suspect begins to dissipate shortly
after drinking stops. There is no time to seek out a magistrate and secure a
warrant.”) (citing Schmerber).
No. 13-1985 17
case-by-case basis to determine whether warrantless action was
justified. Id. at 1563.
Even if we assume, in view of the Court’s decision in
McNeely, that exigent circumstances did not excuse the failure
to seek a warrant in this case, the doctrine of qualified immu-
nity nonetheless shields Kirby from liability.4 Qualified
immunity bars a civil claim for damages against a government
official when the official is performing a discretionary function
and her conduct does not violate clearly established rights of
which a reasonable person would have known. E.g., Sutterfield
v. City of Milwaukee, 751 F.3d 542, 572 (7th Cir. 2014) (citing,
inter alia, Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727,
2738 (1982)); Volkman v. Ryker, 736 F.3d 1084, 1089–90 (7th Cir.
2013). Put another way, an official making a discretionary
decision is entitled to the protection of qualified immunity
when a reasonable person in her position would not have
appreciated that her conduct was illegal under the circum-
stances. Id. at 1090; Phelan v. Vill. of Lyons, 531 F.3d 484, 487 (7th
Cir. 2008).
At the point that the breathalyzer test was administered to
Seiser, a reasonable police official would have believed in light
of Carey and like cases that so long as there was probable cause
4
The defendants raise a question as to why Kirby should be exposed to
liability based on administration of the breathalyzer test, as she did not
order that Seiser be subject to such a test; rather, that was the decision of
officers Madsen and Kral. But giving Seiser the benefit of the doubt, we
shall assume arguendo that Kirby’s decree that Seiser be criminally
processed included or triggered her subordinates’ pursuit of ordinary,
foreseeable tests for intoxication, including a breathalyzer test.
18 No. 13-1985
to justify a breathalyzer examination, there was no need to
consider seeking a warrant first. By the time Seiser was being
processed at the Ninth District, nearly two and one-half hours
had transpired since he was seen drinking from the liquor
bottle, and an attempt to obtain a warrant, through whatever
means, would have portended at least some further delay.
Carey suggested that dispensing with a warrant application
was a sound course. And as the McNeely decision recognizes,
there was a prior division of authority among courts on this
very point. 133 S. Ct. at 1558 & n.2. Conflicting precedents
present the very sort of uncertainty as to what the law requires
that entitles a public official to qualified immunity. See Reichle
v. Howards, 132 S. Ct. 2088, 2096 (2012) (“If judges … disagree
on a constitutional question, it is unfair to subject police to
money damages for picking the losing side of the contro-
versy.”) (quoting Wilson v. Layne, 526 U.S. 603, 618, 119 S. Ct.
1692, 1701 (1999)).
Seiser suggests that Kirby should not be given the benefit
of qualified immunity because, in his view, Kirby usurped the
role of a line police officer by ordering that Seiser be processed
criminally—i.e., that she inserted herself into an area not within
the scope of her authority. See Johnson v. Phillips, 664 F.3d 232,
236–37 (8th Cir. 2011) (official who acts outside clearly estab-
lished scope of his discretionary authority is not entitled to
assert qualified immunity) (collecting cases). On the record
before us, we reject the argument. Supervision of the IAD
(among other divisions of the department) was one of Kirby’s
responsibilities as a deputy superintendent of the police force.
Kirby testified that as an extension of her oversight responsibil-
ities, it was within her purview to make decisions as to the
No. 13-1985 19
proper handling of a police officer who has been implicated in
a crime. R. 44-1 Supp. Ex. C at 74–75. That testimony, not to
mention ordinary logic, suggests that it was not beyond her
authority to issue the order that Seiser be processed criminally.
See Anderson v. Creighton, 483 U.S. 635, 643, 107 S. Ct. 3034,
3040–41 (1987) (“[W]e have been unwilling to complicate
qualified immunity analysis by making the scope or extent of
immunity turn on the precise nature of various officials’ duties
or the precise character of the particular rights alleged to have
been violated.”). Nor is it surprising that a high-ranking officer
within the department would become involved in this instance,
given the sensitivity of the allegations—that a Chicago police
officer was drinking while driving, in a school zone, en route
to his assigned post as a school safety officer—and the corre-
sponding need to make sure the allegations were handled
properly. The negative ramifications for the department in
terms of the public trust would have been serious were it
perceived that Seiser was given lenient treatment. In short, we
are given no reason to believe, in light of Kirby’s oversight
authority, that it was beyond her purview to direct that Seiser
be processed criminally. To the extent the decision to adminis-
ter the breathalyzer is properly attributed to Kirby as a result
of that order, we can see no reason why she should be de-
prived of qualified immunity.
C. Malicious prosecution
Seiser has also alleged that the decision to charge him with
the open-container violation (until the test of the bottle’s
contents proved negative for alcohol), constituted malicious
20 No. 13-1985
prosecution for which the City should be liable.5 To prove the
tort of malicious prosecution under Illinois law, Seiser bears
the burden of proving that (1) the City initiated criminal
proceedings against him; (2) those proceedings were termi-
nated in his favor; (3) there was no probable cause to support
the proceedings; (4) malice was present, i.e., that the officer
who initiated the proceedings was motivated by something
other than a desire to bring a guilty party to justice; and (5) he
suffered damages as result of the proceedings. See, e.g.,
Williams v. City of Chicago, 733 F.3d 749, 759 (7th Cir. 2013);
Aleman v. Vill. of Hanover Park, 662 F.3d 897, 907 (7th Cir. 2011)
(malice); Holland v. City of Chicago, 643 F.3d 248, 254 (7th Cir.
2011). As the lack of probable cause is an element of malicious
prosecution, evidence demonstrating that there was probable
cause to believe the plaintiff had committed an offense is a
complete bar to the claim. E.g., Venson v. Altamirano, 749 F.3d
641, 651 (7th Cir. 2014).
After the breathalyzer examination yielded a negative
result, Seiser was charged solely with the open-container
violation. The governing Illinois statute provides in relevant
part that “no driver may transport, carry, possess or have any
alcoholic liquor within the passenger area of any motor vehicle
upon a highway in [Illinois] except in the original container
and with the seal unbroken.” 625 ILCS 5/11-502(a). There is no
dispute that the bottle that Seiser had with him in his car was
“open” in the sense that its seal had been broken or that it was,
in fact, a liquor bottle. Of course, what was in the bottle was
5
Seiser’s opening brief makes clear that he is pursuing this claim against
the City alone. Seiser Br. 23.
No. 13-1985 21
not alcohol, but that did not become clear until a month later,
when the results of the laboratory testing were disclosed. So
the essential question is whether, at the time was Seiser
charged with the open-container violation, the facts known to
the police (and, in particular, to Sergeants Verta and Cochran,
who reportedly made the decision to issue the citation to
Seiser) would have warranted a reasonable belief that the
bottle contained alcohol.
The answer to that question is yes. Apart from the wit-
nesses who had seen Seiser drinking from what appeared to be
a liquor bottle, both Verta and Price observed the bottle on the
front seat of Seiser’s car. The bottle matched (on the whole) the
description given by the witnesses with whom they had
spoken, and it contained a clear liquid. When asked by Verta
what was in the bottle, Seiser was evasive. A reasonable person
confronted with these circumstances could reasonably believe
that the open bottle contained alcohol.6
6
To the extent Seiser suggests that Illinois employs a more demanding
standard for assessing probable cause vis-à-vis the decision to pursue a
charge, we are not persuaded that is true. Notwithstanding recurrent
references in Illinois malicious prosecution cases to a belief that the accused
is “probably guilty of an offense,” e.g., Howard v. Firmand, 880 N.E.2d 1139,
1142 (Ill. App. Ct. 2007) (internal quotation marks and citations omitted),
those same cases continue to affirm that “a state of facts that would lead a
person of ordinary care and prudence to believe or to entertain an honest and
sound suspicion that the accused committed the offense charged” is sufficient
to establish probable cause to charge the accused, id. (emphasis supplied).
Indeed, the Illinois Appellate court has twice rejected the notion that the
probable cause standard for the decision to charge is meaningfully different
from the probable cause standard for the decision to arrest. See Johnson v.
(continued...)
22 No. 13-1985
Seiser pursues a second line of argument. Given that he was
ordered to turn over the bottle, he reasons, the City from the
outset could not reasonably have expected that the bottle, and
the laboratory results as to its contents, would be admissible
against him at trial. In other words, whatever its suspicions, the
City could not expect that it would be able to prove its case
against him. His argument is based on Garrity v. New Jersey, 385
U.S. 493, 87 S. Ct. 616 (1967), which held that statements
obtained from a police officer under threat of removal from
office if he exercised his right to remain silent are not admissi-
ble against the officer in a subsequent criminal proceeding.
Contrary to the premise of Seiser’s argument, it would not
have been clear to the City or to Sergeants Verta and Cochran
that the bottle necessarily was inadmissible against Seiser in a
criminal proceeding. As the defendants point out, the Illinois
appellate court in Carey expressly rejected an argument that
the results of a breathalyzer test to which a police officer had
been ordered to submit on pain of termination if he did not
were inadmissible against the officer pursuant to Garrity. 898
6
(...continued)
Target Stores, Inc., 791 N.E.2d 1206, 1225 (Ill. App. Ct. 2003) (describing the
two standards as “for all purposes, equal”; Ross v. Mauro Chevrolet, 861
N.E.2d 313, 320 (Ill. App. Ct. 2006); see also London v. Harris, No. 09 C 7797,
2013 WL 1405250, at *7 (N.D. Ill. Apr. 15, 2013) (pointing out decisions from
both this court and the Illinois Appellate Court which have treated probable
cause to arrest as dispositive of a malicious prosecution claim). What may,
in practical terms, distinguish the decision to charge from the decision to
arrest is any additional information that comes to light between the time a
person is arrested and the point at which he is charged. Johnson, 791 N.E.2d
at 1225; Ross, 861 N.E.2d at 320.
No. 13-1985 23
N.E.2d at 1139–40. The court reasoned that the Fifth Amend-
ment privilege against self-incrimination, on which Garrity’s
holding is based, applies only to testimonial and communica-
tive evidence, and not to physical evidence including the
results of a compulsory blood or breath test. Id. It thus would
have been reasonable for the charging officers to conclude that
Garrity posed no bar to the admission of the bottle, its contents,
and the results of the laboratory testing against Seiser in a
criminal proceeding.
Because there was probable cause to believe that Seiser had
violated the open-container statute, his malicious prosecution
claim is foreclosed.
III.
The district court properly entered summary judgment in
favor of the defendants as to both the unreasonable search
claim as well the malicious prosecution claim, as both the
administration of the breathalyzer test and the decision to
charge Seiser with an open-container violation were supported
by probable cause.
AFFIRMED.