Lawrence Larsen v. Carroll County, Illinois ( 2020 )

NONPRECEDENTIAL DISPOSITION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 March 26, 2020 *
Decided March 26, 2020
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-1879
LAWRENCE LARSEN, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Western Division.
v. No. 15 C 50309
CARROLL COUNTY, et al., Frederick J. Kapala,
Defendants-Appellees. Judge.
ORDER
Lawrence Larsen called law enforcement to investigate a potential intruder in his
home and wound up getting arrested for drug possession. He then filed this suit against
the responding officers and their employers, alleging violations of the United States
Constitution and Illinois law. The district court entered summary judgment in the
defendants’ favor, and we affirm.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18-1879 Page 2
Larsen and Belinda Nair lived together in Savanna, Illinois. One afternoon in late
2014, Larsen was home with their six-week-old son and two of Nair’s young children.
Larsen believed he heard a strange phone ring inside the home; concerned, he sent the
children to a neighbor’s house to call 911.
Two officers—one from the Savanna Police Department and another from the
Carroll County Sheriff’s Office—responded to the call. When the officers arrived, they
searched the house for intruders (at Larsen’s request) and found no one inside. The
officers then questioned Larsen, who they suspected might be intoxicated. In their
incident reports and later testimony, they described Larsen as “jittery” with dilated
pupils, and noted that he was sweating, talking quickly, and acting paranoid. Larsen
denied using drugs that day, though he later admitted to consuming at least half a gram
of methamphetamine the night before. The officers asked about the children’s mother,
but Larsen refused to tell them her identity or how to reach her. Eventually, with a
neighbor’s help, the deputy sheriff contacted Nair at work.
On the phone, the deputy sheriff asked Nair if the officers could search for drugs.
According to the deputy’s written reports and deposition testimony, Nair consented to
a search of the garage and the house. For her part, Nair testified (in a deposition two
years later) that she agreed to a search of the garage. But in response to a question about
whether the deputy had asked for her consent to search the house, she replied, “No. I
don’t, you know, remember anything being said about the home at all.… [W]hen he
asked where … drugs [might] be located in my house and I told him the garage, he
asked if he could look in there, and I said yes.” Nair was then asked, “hypothetically,”
what she “would have said” if he had sought her consent to search the house. She
responded, “Well, I have nothing to hide. So … I probably would have said yes with all
that was going on…. My kids were my only concern at that moment.”
The deputy sheriff relayed Nair’s consent to the other officer and then searched
the house. In a bedroom, he found a crumpled piece of paper with white powder
residue on it, next to a broken pen and a mirror. A field test of the powder came back
positive for methamphetamine. The tested sample was destroyed, but a separate sample
was preserved as evidence. The officers arrested Larsen and took him to the county jail.
At the jail, Larsen began having seizures, so he was taken to the hospital. There,
he tested positive for amphetamines and was diagnosed with methamphetamine
overdose and methamphetamine-induced seizures. The treating physician described
No. 18-1879 Page 3
Larsen as disoriented, violent, and hallucinating, and opined to a “reasonable degree of
medical certainty” that Larsen had ingested methamphetamine that day. Three days
later, state authorities charged Larsen with possession of methamphetamine, 720 ILCS
646/60(b)(1). The state later dismissed the charge based on insufficient evidence after
testing of the preserved powder sample came back negative for methamphetamine.
Larsen and Nair sued the officers, Carroll County, and the City of Savanna,
alleging that the second search of the house and Larsen’s arrest violated the Fourth
Amendment. They also brought state-law claims of malicious prosecution and
intentional infliction of emotional distress. The district court entered summary
judgment for the defendants, and Larsen and Nair appealed. We later dismissed the
appeal as to Nair at her request. See FED. R. APP. P. 42(b).
Larsen’s brief is only minimally developed, see FED. R. APP. P. 28(a)(8), but we
will address the two principal arguments that we can discern. Larsen first contends that
the search of the house for drugs violated his Fourth Amendment rights because Nair
did not consent to a search of anything other than the garage. Although a warrantless
search is presumptively unreasonable, a search conducted with the consent of an
authorized person is permissible. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Wonsey
v. City of Chicago, 940 F.3d 394, 399 (7th Cir. 2019). To show that consent was lacking,
Larsen relies solely on Nair’s deposition testimony in response to the question of
whether any officer had asked for her consent to search the house: “No. I don’t, you
know, remember anything being said about the home at all.” Larsen asserts, without
support, that “Nair’s memory is intact” and argues that her inability to recall being
asked for consent to search the house means that she in fact was not asked for it.
Even viewing the record in the light most favorable to Larsen, as we must, Nair’s
testimony establishes only that she could not remember whether an officer had asked
for her consent to search the home. And a lack of recollection does not, by itself, create a
genuine dispute of material fact. See Mucha v. Vill. of Oak Brook, 650 F.3d 1053, 1056
(7th Cir. 2011) (plaintiff’s testimony that he “could not recall” whether event occurred
was “inconclusive” and so “cannot by itself create a genuine factual dispute”); Tinder
v. Pinkerton Sec., 305 F.3d 728, 735–36 (7th Cir. 2002) (plaintiff’s assertion that she did not
remember receiving brochure did not raise genuine factual issue as to whether it was
distributed to her). The deputy sheriff stated in his written report at the time and
testified in his later deposition that Nair consented to a search of the house and the
garage to rid them of any drugs. And the record contains no sworn testimony that Nair
No. 18-1879 Page 4
refused consent—in fact, she testified that, had she been asked, she “probably would
have said yes” to a search of the home.
Larsen further argues that, at the very least, Nair’s equivocal response “should
have been clarified.” But the onus was on Larsen to do so. In response to a properly
supported motion for summary judgment, the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the material facts.” Burton
v. Kohn Law Firm, S.C., 934 F.3d 572, 579 (7th Cir. 2019) (quoting Siegel v. Shell Oil Co.,
612 F.3d 932, 937 (7th Cir. 2010)). Specifically, when presented with admissible evidence
that consent was given, Larsen had the burden to produce evidence that officers “never
obtained consent or the consent was invalid.” Wonsey, 940 F.3d at 399. Larsen was
represented by counsel in the district court and could have clarified Nair’s testimony.
See Kopplin v. Wis. Cent. Ltd., 914 F.3d 1099, 1103 (7th Cir. 2019) (“[A] party may offer an
affidavit in response to a summary-judgment motion ‘to clarify ambiguous or confusing
testimony,’” including when “earlier testimony was ‘the result of a memory lapse.’”
(citation omitted)). Yet he did not, and he points to no other evidence to support his
argument.
Even if Larsen had met his burden in this regard, he still would not prevail. His
brief does not even mention the district court’s alternate ruling—that the officers are
entitled to qualified immunity for the second search of the house—thus abandoning any
challenge to that decision. See Campos v. Cook Cnty., 932 F.3d 972, 976 (7th Cir. 2019);
Anderson v. Hardman, 241 F.3d 544, 545–46 (7th Cir. 2001).
Larsen also challenges the entry of summary judgment for the defendants on his
claims for wrongful arrest and malicious prosecution. His entire argument turns on the
eventual dismissal of the drug-possession charge against him. This dismissal, he
contends, proves that the officers “fabricated” the evidence in order to “trump up
charges” against him.
Not so. The end result of the state criminal proceeding has scant bearing on the
propriety of the warrantless arrest, which is constitutional so long as the arresting
officer had probable cause that a crime had been or was being committed. See Devenpeck
v. Alford, 543 U.S. 146, 152 (2004). Similarly, a plaintiff pursuing a malicious-prosecution
claim in Illinois must establish more than just termination of the criminal proceedings in
his favor. He also must prove, among other factors, “the absence of probable cause for
such proceeding.” Beaman v. Freesmeyer, 131 N.E.3d 488, 495 (Ill. 2019). But here, Larsen
does not challenge the conclusion that the officers had probable cause to arrest him for
No. 18-1879 Page 5
possession of methamphetamine, and the record (which includes evidence of Larsen’s
obvious intoxication and the positive field test) supports probable cause. See Devenpeck,
543 U.S. at 152 (“Whether probable cause exists depends upon the reasonable
conclusion to be drawn from the facts known to the arresting officer at the time of the
arrest.”). Nor does he contend that state prosecutors lacked probable cause to charge
him with that crime. (In fact, Larsen waived a probable-cause hearing in state court.)
The existence of probable cause is an absolute bar to a claim of false arrest under the
Fourth Amendment, see Dollard v. Whisenand, 946 F.3d 342, 353 (7th Cir. 2019), and to a
claim of malicious prosecution under Illinois law, see Beaman, 131 N.E.3d at 495. So the
district court properly granted defendants summary judgment on these claims.
AFFIRMED