Ryan Leaver v. Gary Shortess , 844 F.3d 665 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2730
RYAN LEAVER,
Plaintiff-Appellant,
v.
GARY SHORTESS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 14-C-224 — William C. Griesbach, Chief Judge.
____________________
ARGUED JANUARY 7, 2016 — DECIDED DECEMBER 21, 2016
____________________
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Ryan Leaver was arrested in
Montana on a Wisconsin warrant for theft by lessee after he
failed to return a rental car to Hertz Rent-A-Car in Appleton,
Wisconsin. He spent more than two months in a Montana
jail before being extradited to Wisconsin. The theft charge
was eventually dropped.
2 No. 15-2730
Leaver then filed this suit under 42 U.S.C. § 1983 alleging
that the investigating officer, Sergeant Gary Shortess of the
Outagamie County Sheriff’s Department, intentionally or
recklessly omitted certain exculpatory information from his
police reports that would have defeated probable cause for
the charge and accompanying warrant. The district court
granted summary judgment for Shortess.
We affirm. No evidence suggests that Shortess was per-
sonally aware of the information Leaver claims was wrongly
omitted from the police reports. And even if he was aware of
it, qualified immunity applies. It’s not clear that the infor-
mation would have negated probable cause.
I. Background
The saga of Leaver’s arrest and extradition begins in
August 2010 in Appleton, Wisconsin, where Leaver was then
living in a motel. On August 2 Leaver’s parked car was
struck by a driver who was insured by West Bend Mutual
Insurance Company. West Bend covered Leaver’s loss and
agreed to pay for a rental car from Hertz. That same day
Leaver went to Hertz’s Appleton office, signed a rental
agreement, loaded all his belongings into a rented 2010
Toyota Camry, and set off westward, leaving the state. He
wound up in Montana. There he stayed.
The rental contract, however, provided that the Camry
was due back to Hertz Appleton on August 12. At Leaver’s
request, and with West Bend’s consent, Hertz extended the
return date to August 16. That date came and went, but
Leaver did not return the car. When he still hadn’t returned
the car by August 18, Hertz reported it stolen.
No. 15-2730 3
Deputy John Drews of the Outagamie County Sheriff’s
Department took the initial theft report from Hertz. He
learned that Leaver had designated Sam Cartier, his room-
mate in Appleton, as his contact person. Drews contacted
Cartier, who said he had last spoken to Leaver on August 9
or 10. Cartier also explained that Leaver had packed all his
belongings in the rental car and was possibly headed for
California. Cartier gave Drews the last contact information
he had for Leaver—a phone number for a Motel 6 in
Montana. Drews called the number but Leaver had already
checked out. With no further leads on either Leaver or the
car, Drews directed the communications center in the
Outagamie County Sheriff’s Department to enter the car into
the stolen-vehicle registry and send an alert to the Montana
Highway Patrol to be on the lookout for the missing Camry.
On September 10 Sergeant Shortess picked up the inves-
tigative trail when the Sheriff’s Department received a
teletype that the stolen Camry had been located, undam-
aged, in Montana. Shortess reviewed Drews’s report and the
statement he had taken from the complaining witness at
Hertz Appleton. He also looked at the rental agreement,
which showed that Leaver had a Michigan driver’s license.
Shortess called the Michigan State Police looking for contact
information for Leaver or anything else that might assist in
locating him or a family member. This inquiry turned up
nothing. Based on what he then knew, Shortess concluded
that he had enough to refer the matter to the Outagamie
County District Attorney for a theft charge. He prepared a
report to that effect, listing that day’s date—September 10,
2010—as the date the car was recovered in Montana.
4 No. 15-2730
The matter stalled for six months. Then on March 16,
2011, an Outagamie County Assistant District Attorney filed
a criminal complaint charging Leaver with theft by lessee.
See WIS. STAT. § 943.20(1)(e). An arrest warrant was issued
that same day, though many weeks would pass before
Leaver was located and arrested.
Leaver maintains that he was entitled to keep the Camry
for up to 62 days and return it to any Hertz location in the
country. He points to the following clause in the rental
agreement: “This vehicle must be returned to Appleton, WI
on 08/12/10 at 16:42 or a higher rate and/or inter city fee will
apply. Minimum keep: 1 rental day. Maximum keep: 62 days
@26.99/day.” But a separate section entitled “Return” also
states: “You must return the car to Hertz by the due date
specified on the rental record, or sooner if demanded by
Hertz.” Adding to the confusion, the agreement also pro-
vides that “[i]n no event” is the renter allowed to keep the
car “for more than thirty (30) days.”
Leaver claims that he returned the Camry to the parking
lot at a Hertz location in Belgrade, Montana, on August 26,
2010. He also says that he called Hertz’s national number
and got oral permission to return the car there, though
nothing corroborates that claim.
On April 9, 2011—after the criminal complaint was filed
and the warrant was issued—Leaver wrote to Outagamie
County Assistant District Attorney Patrick Taylor informing
him that he had returned the Camry to Hertz in Belgrade,
Montana. He accused Hertz of insurance fraud and suggest-
ed that the prosecutor contact “Matt” at Hertz Belgrade and
Katherine Horton at Hertz’s toll-free national number, both
of whom (he said) would confirm his story. On May 12 ADA
No. 15-2730 5
Taylor sent Shortess a memo directing him to follow up with
the people Leaver identified in his letter.
Shortess did not do so, but he did investigate further in
Appleton. He contacted James Foytik, the manager at Hertz
Appleton, who told him that the Camry wasn’t a “one-way
rental” (as Leaver’s letter claimed) and confirmed that
Leaver had to return the car to Hertz Appleton by Au-
gust 16. Foytik also told Shortess that Hertz had placed
Leaver on a nationwide “do not rent” list based on his
failure to return the Camry. Shortess then contacted the
corporate security manager for West Bend Insurance, who
likewise confirmed that the rental agreement was not a one-
way rental. After discussing the case with another sergeant
and the prosecutor, Shortess filed a supplemental report
memorializing this additional investigation and concluding
that nothing in Leaver’s letter called into question the factual
basis for the theft charge.
On May 27, 2011, Leaver was arrested in Bozeman,
Montana. He remained in jail until August 4, when he was
extradited to Wisconsin. The next day he was brought before
a court commissioner in Outagamie County Circuit Court
for an initial appearance. Leaver’s lawyer moved to dismiss
the case, arguing that the rental contract was vague about
when and where the car needed to be returned. He also told
the court commissioner that Leaver had returned the car to
the Hertz lot in Belgrade, Montana, and pointedly noted that
the prosecutor had failed to mention that the car was recov-
ered there. The court commissioner denied the motion,
finding probable cause for the crime of theft by lessee in
violation of § 943.20(1)(e). Leaver renewed his dismissal
6 No. 15-2730
motion when the case came before a circuit court judge in
December, but the motion was again denied.
On January 17, 2012, the prosecutor dropped the charge
and the case was dismissed. Leaver then turned his sights on
Hertz, winning a substantial financial settlement. We’re
concerned here with Leaver’s § 1983 damages claim against
Shortess for violating his Fourth Amendment right to be free
from unreasonable seizure. Leaver contends that Shortess
intentionally or recklessly omitted from his police reports
certain facts that would have affected the prosecutor’s
probable-cause determination—namely, the terms of the
“maximum keep” provision in the rental agreement and the
“fact” that he had returned the car to Hertz Belgrade on
August 26, 2010. The district judge entered summary judg-
ment for Shortess, holding that no evidence supported
Leaver’s assertion that Shortess was aware of the omitted
information and the omitted information wouldn’t have
undermined the probable-cause determination anyway.
II. Discussion
We review a summary judgment de novo, construing the
evidence in the light most favorable to Leaver and drawing
all reasonable inferences in his favor. Townsend v. Cooper,
759 F.3d 678, 685 (7th Cir. 2014). Leaver claims that Shortess
intentionally or recklessly omitted facts from his written
reports that would have affected the prosecutor’s charging
decision, which in turn led to the issuance of an invalid
arrest warrant and thus his arrest without probable cause, all
in violation of his rights under the Fourth Amendment. 1
1A warrantless arrest without probable cause gives rise to a Fourth
Amendment claim for false arrest, which “cover[s] the time of detention
No. 15-2730 7
We accept, as we must at this stage, Leaver’s claim that
he returned the car to Hertz Belgrade on August 26. But no
evidence suggests that Shortess was actually aware of that
fact. The September 10 teletype said only that the stolen car
was recovered in Montana—not that it was returned to a
Hertz location there. As for the terms of the rental agree-
ment, the most we can say is that the agreement contains
some apparent inconsistencies. It prescribes a fixed date and
place for the car’s return: August 12, 2010 (extended to
August 16); Hertz Appleton. But it also includes a longer
“maximum keep” period (62 days), together with a warning
that extra fees will apply for intercity returns and any addi-
tional days beyond the listed return date. In light of the
other facts Shortess had gathered in his investigation, these
conflicting contract provisions do not conclusively negate
probable cause. Or at least qualified immunity applies. It
would not have been clear to a reasonable officer that these
contract provisions defeat probable cause.
“Qualified immunity protects police officers from suit to
the extent that their actions could reasonably have been
thought consistent with the rights they are alleged to have
violated.” Whitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010)
(internal quotation marks omitted). Leaver’s Fourth
up until issuance of process or arraignment.” Wallace v. Kato, 549 U.S.
384, 390 (2007). Once legal process commences, the Due Process Clause
takes over and the claim is recognized—if at all—as one for malicious
prosecution. Bianchi v. McQueen, 818 F.3d 309, 322 (7th Cir. 2016) (recog-
nizing that after Wallace a Fourth Amendment false-arrest claim is
limited to the period before legal process begins). Leaver was arrested on
a warrant that was issued with the criminal complaint. It’s not clear that
the Fourth Amendment applies at all, but Shortess didn’t raise this point
so we consider it waived.
8 No. 15-2730
Amendment claim rests on an argument that the arrest
warrant was invalid because Shortess withheld facts from
his police reports that would have negated probable cause.
Although we generally presume the validity of a warrant,
that presumption may be overcome by a showing that the
officer who sought the warrant “intentionally or recklessly
withheld material facts from the warrant-issuing judge.” Id.
at 410–11. The key question here is whether the omitted
details were indeed material to the probable-cause determi-
nation, a question we approach by asking “whether a hypo-
thetical affidavit that included the omitted material would
still establish probable cause.” Id. at 411 (quotation marks
omitted).
In the context of a § 1983 damages claim against the of-
ficer who sought the warrant, this inquiry accounts for the
availability of qualified immunity. That is, we ask whether it
would have been clear to a reasonable officer that the omit-
ted fact was material to the probable-cause determination.
Id. at 412–14; see Anderson v. Creighton, 483 U.S. 635, 641
(1987).
Probable cause “is a common-sense inquiry requiring on-
ly a probability of criminal activity; it exists whenever an
officer or a court has enough information to warrant a
prudent person to believe criminal conduct has occurred.”
Whitlock, 596 F.3d at 411. Wisconsin’s theft-by-lessee statute
makes it a crime to “[i]ntentionally fail[] to return any
personal property which is in his or her possession or under
his or her control by virtue of a written lease or written
rental agreement after the lease or rental agreement has
expired.” § 943.20(1)(e). The materiality of the omitted
information depends in part on how Wisconsin law treats a
No. 15-2730 9
rental-car agreement with both a fixed expiration date and a
longer “maximum keep” provision.
We have some guidance. The Wisconsin Supreme Court
has upheld the validity of an arrest warrant for violation of
the theft-by-lessee statute in a case involving a similarly
confusing equipment rental agreement:
We hold the arrest was valid. The equipment
was rented on September 13, 1975. The rental
agreement included a space labeled ‘Date to be
Returned.’ That space was filled in with the
date ‘9/15/75.’ Although the agreement includ-
ed a clause providing for additional rent if the
equipment was returned after the date agreed
upon, we do not believe that clause changed
the expiration date of the rental contract.
Robinson v. State, 301 N.W.2d 429, 432 (Wis. 1981). Robinson
lends support to Shortess’s reading of the Hertz contract.
At the very least, Shortess can claim the protection of
qualified immunity, which “tolerates reasonable mistakes
regarding probable cause.” Whitlock, 596 F.3d at 413. Know-
ing what Shortess knew, a reasonable officer could have
concluded that Leaver committed theft by lessee notwith-
standing the confusing language in the contract. Shortess
knew that the rental agreement had a fixed expiration date
of August 16, 2010, and also listed Hertz Appleton as the
return location. He knew that the car was not returned to
Hertz Appleton by that date. He confirmed with Hertz
Appleton—and also West Bend Insurance—that the car was
not a one-way rental. He also knew that Leaver had packed
all his belongings in the leased car and headed for the west
10 No. 15-2730
coast and was last known to be in Montana. True, he was
also aware by September 10 that the car was recovered in
Montana, but as we’ve noted, no evidence suggests that he
knew it had been returned to a Hertz location there.
Shortess’s interpretation of the rental agreement was reason-
able under the circumstances and has some support in
Wisconsin law, and he was entitled to rely on the credible
complaining witnesses at Hertz Appleton.
In short, it would not have been clear to a reasonable of-
ficer that the information Leaver claims Shortess wrongly
omitted from his police reports would have negated proba-
ble cause. Indeed, a Wisconsin court commissioner and
circuit court judge—both aware of the language in the rental
contract and Leaver’s claim that he returned the car to Hertz
Belgrade on August 26—found probable cause for the charge
of theft by lessee. The district judge properly entered sum-
mary judgment for Shortess.
AFFIRMED.