Molina, Raul v. Cooper, Gary

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1995
RAUL MOLINA, JACKIE MOLINA, and CHAD MOLINA
and JOSHUA MOLINA, by and through their parents
and next friends Raul and Jackie Molina,
Plaintiffs-Appellants,
v.
GARY COOPER, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 00 C 50230—Philip G. Reinhard, Judge.
____________
ARGUED DECEMBER 10, 2002—DECIDED APRIL 15, 2003
____________
Before FLAUM, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. Following a search of their
home, the Molinas brought suit against numerous police
officers, arguing that the search warrant for their home
was invalid, the “knock and announce” rule was violated,
and the use of flash bang devices was unreasonable. The
district court granted summary judgment for the officers.
Because the Molinas have not shown that the search
warrant lacked probable cause, and because the officers
2 No. 02-1995
complied with the “knock and announce” rule and reason-
ably used flash bang devices, we affirm.
I. BACKGROUND
The police began investigating Raul Molina after receiv-
ing information from two informants, Jason Ramirez
and Jason Villa, that he was the head of a drug distribu-
tion organization. Ramirez told police in two taped inter-
views that (among other things) he had been a member
of Raul’s organization from 1990 until his arrest in 1997,
picked up drugs from Raul’s home for delivery in the past,
and had seen up to one kilogram of cocaine in Raul’s
residence. Villa also provided a taped statement indicat-
ing that Raul controlled a drug organization, Villa dealt
five pounds of marijuana a week for Raul for several years
until Villa’s 1995 arrest, and Villa had incurred a debt
with Raul’s organization during that time period. On July
3, 1998, in an effort to corroborate these statements, offi-
cers Gary Cooper and Robbie Dail searched the Molinas’
garbage and several items tested positive for the probable
presence of cocaine.
Two days later, Officer Cooper obtained a search warrant
for the Molinas’ home. In his affidavit in support of the
search warrant, Officer Cooper relied upon the positive
field tests and the statements he had received from Villa
and Ramirez. After a judge found probable cause and is-
sued the search warrant, Officer Cooper met with John
Simonton, head of the Tactical Response Team (“TRT”), to
decide how the warrant should be executed. Because the
TRT assists in executing “high risk” warrants and the
information about Raul satisfied the criteria for “high risk”
No. 02-1995 3
searches,1 they agreed that the TRT would participate
in the search.
Shortly after midnight on July 6, 1998, the officers
searched the Molinas’ home in Sterling, Illinois. Simonton
said in his deposition that Trooper Bain, a TRT member,
initiated the search by knocking on the front door and
calling out three times, “Illinois State Police search war-
rant, open the door!” The Molinas contest this assertion,
but only offer Jackie’s testimony that she was asleep
when the officers arrived and that she woke up to the
sound of screaming and yelling.
After no one responded to Trooper Bain’s three calls, the
TRT claims they waited another five seconds before break-
ing down the doors and entering the Molinas’ home. Jackie
Molina jumped out of bed, and was walking towards
the hallway leading toward the front door when she was
grabbed by a TRT officer and shoved to the ground. Jackie
alleges that while she was on the ground one of the TRT
officers placed a gun to her head. She was then handcuffed
and detained in the living room along with her two chil-
dren, Chad and Joshua.
After securing the living room, the TRT officers contin-
ued searching for Raul. In his deposition, Officer Cooper
stated that the officers had previously obtained informa-
tion that Raul’s scheduled work shift ended at 11:00 p.m.,
and they believed he would be at home when they exe-
cuted the search warrant. When Raul was not found on
the first floor, the TRT officers thought he might be in
the basement. The TRT officers threw a flash bang de-
1
Specifically, Raul’s criminal history, alleged drug distribution
activities, association with gangs, and stash of weapons at his
home qualified the search as “high risk.”
4 No. 02-1995
vice2 into the basement and went into the basement living
room area, but were unable to find Raul. They threw
another flash bang device into one of the basement bed-
rooms, but didn’t find Raul. After securing the entire
home, the TRT officers learned that Raul was still at work.
The investigating officers, including officers Cooper and
Dail, then entered the home and conducted the search.
What they found included a set of brass knuckles (which
the Molinas contend is actually a belt buckle), a switch-
blade knife, fireworks, three round plastic balls with
functional fuses filled with explosive substances, and a
small digital scale commonly used by drug dealers. In
their depositions, officers Cooper and Dail said that a
“powdery substance” or “haze” was on the scale, but that
the substance was not subjected to a field test because
doing so would have left too little for laboratory tests.
The Molinas were not arrested that night.
Ultimately, the laboratory results confirmed that the
substance found on the Molinas’ scale was cocaine, but
came back negative for two items that had field-tested
positive for the probable presence of illegal substances
during the search. Raul and Jackie were arrested for
possession of a controlled substance, unlawful use of weap-
ons, and possession of drug paraphernalia. Almost a year
later, those charges were all dismissed.
Raul, Jackie, Chad, and Joshua Molina filed a 42 U.S.C.
§ 1983 suit in federal district court, claiming that their
constitutional rights were violated by officers who were
with the Illinois Police, local police agencies, or multi-
2
These devices are also referred to by the parties as “concussion
bombs” or “distraction devices.” According to the officers, they
emit a bright light and make a loud noise, and are used to distract
suspects momentarily so that officers can safely enter occupied
areas.
No. 02-1995 5
county police task forces (“the officers”). In a thoughtful
opinion, the district court granted summary judgment
to the officers on all of the plaintiffs’ claims. On appeal,
the Molinas do not contest many of the district court’s
findings, but continue to argue lack of probable cause for
the search warrant, “knock and announce” violations,
unreasonable use of flash bang devices, and unnecessary
property damage resulting from the search.
II. ANALYSIS
A. Qualified Immunity Defense
We review a grant of summary judgment de novo. See
Campell v. Towse, 99 F.3d 820, 826 (7th Cir. 1996). A
movant is entitled to judgment as a matter of law only
if there is no genuine issue of material fact. Fed. R. Civ. P.
56(c); Celotex v. Catrett, 477 U.S. 317, 323 (1986). We
view the evidence and draw all reasonable inferences in
the light most favorable to the nonmoving party. See Chavez
v. Ill. State Police, 251 F.3d 612, 635 (7th Cir. 2001).
The officers, who are all sued in their individual capaci-
ties, assert a qualified immunity defense. Here, we focus
on whether, taking the facts in the light most favorable
to the Molinas, the officers’ conduct violated the Molinas’
constitutional rights. Saucier v. Katz, 533 U.S. 194, 201
(2001). Assuming this requirement is met, the next ques-
tion is whether the constitutional right at issue was
clearly established such that a reasonable officer would
understand that his actions violated that right. Id. at 201-
02. The Molinas bear the burden of defeating this de-
fense. See Sparing v. Vill. of Olympia Fields, 266 F.3d 684,
688 (7th Cir. 2001).
6 No. 02-1995
B. Probable Cause
The plaintiffs allege that the search warrant for their
home was not supported by probable cause because Offi-
cer Cooper both omitted information and provided false
and misleading information in the affidavit he presented
to obtain the warrant. However, “[t]here is . . . a presump-
tion of validity with respect to the affidavit supporting
the search warrant.” See Franks v. Delaware, 438 U.S. 154,
171 (1978). To overcome this hurdle, the Molinas must
provide evidence that the officers “knowingly or inten-
tionally or with a reckless disregard for the truth, made
false statements to the judicial officer, and that the
false statements were necessary to the judicial officers’
determinations that probable cause existed for the ar-
rests.” See Beauchamp v. City of Noblesville, 320 F.3d 733,
742 (7th Cir. 2003) (citing Franks, 438 U.S. at 155-56).
“Immaterial misstatements will not invalidate an other-
wise legitimate warrant.” Forman v. Richmond Police
Dep’t, 104 F.3d 950, 964 (7th Cir. 1997). The same rules
apply to omissions. See Supreme Video, Inc. v. Schauz, 15
F.3d 1435, 1441 (7th Cir. 1994); United States v. Williams,
737 F.2d 594, 604 (7th Cir. 1984).
1. Villa’s statements
The Molinas point to Paragraph 7 of Officer Cooper’s
affidavit, which relied on Villa’s recorded statement,
contending that: (1) Villa’s information was stale; (2)
officers Cooper and Dail coerced Villa’s testimony; (3)
officers Cooper and Dail used the tape recorder to manipu-
late Villa’s statements; (4) Villa’s incriminating state-
ments regarding Raul were false; and (5) officers Cooper
and Dail knew the statements were false at the time they
were made.
We agree with the district court that “there might be
some questions of fact as to whether Cooper had reasons to
No. 02-1995 7
doubt the veracity of Villa’s allegations.” See Molina ex rel.
Molina v. Cooper, No. 00 C 50230, 2002 WL 426035, at
*3 (N.D.Ill. Mar. 18, 2002). Moreover, Villa’s information
was not particularly timely, as his alleged dealings with
Molina ended in 1995, and the warrant was not obtained
until July 1998. See United States v. McNeese, 901 F.2d
585, 596-97 (7th Cir. 1990), overruled on other grounds by
United States v. Westmoreland, 240 F.3d 618 (7th Cir.
2001). For these reasons we agree that the district court
properly disregarded Villa’s statements in determining
whether probable cause existed. However, we also agree
with the district court that even if Villa’s statements
are totally disregarded, Ramirez’s statements and the
positive field test results from the Molinas’ garbage were
enough to establish probable cause. See Franks, 438 U.S.
at 171-72; Forman, 104 F.3d at 964.
2. Ramirez’s statements
The Molinas suggest that the information in the affidavit
based on Ramirez’s statements is problematic. The portion
of Officer Cooper’s affidavit that discussed Ramirez’s
statements follows:
In 1997 and 1998, the Illinois State Police,
Blackhawk Area Task Force, (ISP/BATF), received
information from Jason Ramirez. Ramirez advised
from 1990 through 1997 until the time he was
arrested, Salvador Estrada and himself “Jason
Ramirez” were high ranking members of the
Molina drug organization. Ramirez advised that
during this time Estrada and himself received
approximately twenty seven ounces of cocaine a
week and approximately fifty pounds of cannabis
a month, which they redistributed for Molina.
Ramirez then advised that Estrada and himself
returned to Raul Molina at least ten thousand
8 No. 02-1995
dollars a week from cannabis and cocaine sales
during this time period, which totals at least five
hundred twenty thousand dollars a year. Ramirez
advised that Estrada and himself would pick-up the
cocaine directly from Raul Molina at Molina’s resi-
dence [on] Indian Ridge Road, [in] Sterling, Illi-
nois. The cannabis would be picked up at the Luis
Javier Reyes residence on Hunter Street, Sterling,
Illinois, where it was being stored for Molina. Reyes
is a relative of Molina. Ramirez also advised that
Raul Molina keeps his drug records in a ledger in
the basement of the Molina residence. Ramirez
advised that he has been in the Molina residence
on several different occasions, where he has also
seen up to a kilogram of cocaine in the basement
of the Molina residence.
Specifically, the Molinas claim that Officer Cooper
omitted various facts and inconsistencies in his summary
of Ramirez’s statement. The alleged omissions are failure
to: (1) acknowledge that Ramirez gave different num-
bers regarding the amount of cocaine he allegedly distrib-
uted for Raul; (2) note that Ramirez provided contradic-
tory statements regarding the cocaine pick-up location
and the presence of cocaine at Raul’s residence; (3) men-
tion concerns about Ramirez’s statements regarding mari-
juana distribution, gang involvement, drug suppliers, and
drug proceeds; and (4) state that Ramirez provided infor-
mation to get favorable treatment on his pending criminal
aggravated battery charge, and that he was initially re-
leased from jail without posting bond.
As to their first assertion that Ramirez gave inconsis-
tent statements during his interview regarding cocaine
quantities, Ramirez claimed that the amount of cocaine
he delivered varied and depended on demand. And al-
though he provided different figures during the inter-
view, he ultimately settled on approximately 27 ounces per
No. 02-1995 9
week.3 When weighed against Ramirez’s detailed, corrobo-
rated, self-incriminating, first-hand accounts of Raul’s
alleged drug distribution activities, it is clear that Officer
Cooper’s failure to include information about fluctuating
cocaine amounts in the search warrant affidavit did not
affect the probable cause equation.
Additionally, we reject the Molinas’ claim that Ramirez’s
statements regarding the presence of cocaine in Raul’s
basement and the pick-up location for the cocaine in-
cluded blatant inconsistencies. The record suggests that
many of these comments are reconcilable (for instance,
Ramirez’s claim that he picked up drugs at the home of
someone named “Chavo” on Thursdays does not conflict
with his statement that he picked up drugs from Raul’s
home two to three times a week), and even if they are
not reconcilable, the inconsistencies are of “minimal sig-
nificance.” See McNeese, 901 F.2d at 594.
We next address the argument that Officer Cooper had
doubts about certain aspects of Ramirez’s story, and that
those doubts should have been expressed to the judge
issuing the warrant. Police officers have a duty to reveal
“serious doubts” about an informant’s testimony. See
United States v. Whitley, 249 F.3d 614, 621 (7th Cir. 2001)
(quoting Williams, 737 F.2d at 602 (7th Cir. 1984) (cita-
tions and internal quotation marks omitted)). Officer
Cooper acknowledged that certain parts of Ramirez’s state-
ment cast “some” doubt on certain issues, such as the
precise amount of marijuana Raul supposedly distributed
and whether Raul was involved in a gang. He also agreed
that Ramirez’s information regarding Raul’s alleged drug
source and drug proceeds lacked detail. However, there
is no evidence that Officer Cooper had serious doubts, nor
3
During questioning by police, Ramirez responded affirmatively
on two separate occasions when asked if this figure was accurate.
10 No. 02-1995
does the evidence suggest that Officer Cooper should
have entertained serious doubts in light of Ramirez’s
statement. An informant is not required to provide details
about every single aspect of an alleged drug conspiracy.
Morever, details like the identity of Raul’s alleged supplier
and the location of the alleged drug proceeds would not
have necessarily affected the probable cause finding.
McNeese, 901 F.2d at 595 (noting that in order for a party
to establish a Franks violation, there must be “a reason-
able probability” that a different outcome would have
resulted had omitted information been included in the
affidavit).
Finally, although the Molinas contend that Ramirez’s
desire to make a deal should have been reflected in the
warrant, the omission was not essential to the probable
cause determination. We do not suggest that an infor-
mant’s motive can never be a factor in assessing whether
probable cause exists. However, courts are aware that
informants are frequently facing charges and hoping for
deals. See United States v. Wold, 979 F.2d 632, 634-35 (8th
Cir. 1992). Here, Ramirez’s testimony was sufficiently
reliable that probable cause would have been found even
if the informant’s motive had been included. As the dis-
trict court noted, Ramirez’s “statements were against his
own penal interest as he also implicated himself in a long-
running and highly profitable drug conspiracy,” Ramirez’s
detailed testimony linking Raul to the drug conspiracy (for
example, Ramirez gave the names and locations of sev-
eral players in the alleged conspiracy, provided concrete
information regarding the amounts of cocaine and money
changing hands, and described the locations of the drugs
and drug ledgers) was based on first-hand observation,
and Officer Cooper independently corroborated some of
No. 02-1995 11
Ramirez’s statements.4 See Molina, 2002 WL 426035, at *4.
All of these points are strong indicia of reliability. See
Illinois v. Gates, 462 U.S. 213, 234 (1983) (“[E]ven if we
entertain some doubt as to an informant’s motives, his
explicit and detailed description of alleged wrongdoing,
along with a statement that the event was observed first-
hand, entitles his tip to greater weight than might other-
wise be the case.”); United States v. Jones, 208 F.3d 603,
609 (7th Cir. 2000); United States v. Leidner, 99 F.3d 1423,
1429-30 (7th Cir. 1996); United States v. Reddrick, 90 F.3d
1276, 1280 (7th Cir. 1996); see also Wold, 979 F.2d at 634-
35 (stating that “failure to inform the issuing officer of a
deal is not fatal to the validity of a warrant,” especially
when an informant’s testimony is at least “partly corrobo-
rated”) (citations and internal quotation marks omitted).
In short, none of the Molinas’ arguments negate the
simple fact that Ramirez gave critical information based
on first-hand knowledge linking Raul to a drug conspir-
acy, and provided detailed accounts about the conspir-
acy’s inner workings and major players. This information,
in conjunction with the field tests discussed below, was
4
This independent corroboration (specifically, the positive field
test results from the Molinas’ garbage) weakens the plaintiffs’
argument that if this court considered the problems with Villa’s
testimony while assessing the remaining portions of the affidavit,
it would find that the Molinas had satisfied the Franks test. The
Molinas rely on Whitley, in which we refused to “consider the
officers’ credibility regarding the preparation of [an] affidavit in
isolation,” where the officers had “been exposed as being less
than truthful in their testimony regarding searches incident to
an investigation.” See 249 F.3d at 624. However, in Whitley we
specifically noted that there was not sufficient corroboration
of key portions of the affidavit. Id. at 623-24. That is not the
case here. Additionally, while we earlier agreed that Villa’s
statements may raise issues of material fact, Officer Cooper has
not necessarily been exposed as “less than truthful.”
12 No. 02-1995
sufficient for a reasonable officer to believe that probable
cause had been established.
3. The field test
According to officers Cooper and Dail, burnt paper, burnt
foil, toothbrushes, and a toilet paper roll found in the
Molinas’ garbage tested positive for the probable presence
of cocaine. Officer Cooper claims that during the field test,
the officers took precautions to ensure accuracy, and they
showed the test results to their supervisor, Master Ser-
geant Kerns. These results corroborated Ramirez’s state-
ment that Raul was distributing drugs from his home.
The Molinas allege that the field test results are false
and the garbage items were never lab tested. They further
insist that because field tests conducted during the search
tested positive for illegal substances but post-search lab
tests came back negative, the field tests were highly
unreliable, and Officer Cooper should have discussed the
unreliability of the field tests in the search warrant affida-
vit. These arguments are meritless.
The officers had no duty to send the garbage items to
a lab before applying for a warrant. The potential unreli-
ability of the field tests was determined after the war-
rant was obtained, and the Molinas have presented no
evidence to show that Officer Cooper thought the field
tests were unreliable when he applied for the warrant.
See Hebron v. Touhy, 18 F.3d 421, 423 (7th Cir. 1994)
(“[P]robable cause depends on information known to the
police at the time, not on how things turn out.”).
The field tests and Ramirez’s statements about Raul’s
drug involvement were enough for a reasonable officer
to believe that probable cause existed to apply for a
search warrant, so we affirm the district court’s grant of
summary judgment for the officers on this claim.
No. 02-1995 13
C. “Knock and Announce”
Under the Fourth Amendment, police officers are gener-
ally required to knock on the door and announce their
identity and purpose before forcibly entering a home to
execute a search warrant. See Richards v. Wisconsin, 520
U.S. 385, 387 (1997); Wilson v. Arkansas, 514 U.S. 927, 929
(1995). The Molinas claim that the search of their home
was unlawful because the officers violated this rule by
failing to knock and announce their presence. Alternatively,
the Molinas argue that even if they did knock and an-
nounce, the officers failed to allow a reasonable amount
of time to pass before their forcible entry. See United States
v. Espinoza, 256 F.3d 718, 723 (7th Cir. 2001) (imposing
such a requirement).
1. Failure to “knock and announce”
We first consider the Molinas’ argument that the offi-
cers failed to “knock and announce.” While we are mindful
that our job is not to resolve disputes as to material issues
of fact, see Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th
Cir. 2001), in this instance there is no real dispute. Jackie
claims that she awoke to “screaming and yelling” but
could not understand what was being said. Viewing her
testimony in the light most favorable to the Molinas, it
shows either that the screaming or yelling was actually
the sound of the officers knocking and calling out, or that
Jackie simply cannot say what the officers did before
she awoke. Either way, Jackie’s assertions do not create
a genuine dispute as to whether the officers “knocked and
announced” as Officer Simonton claimed. At best, her
allegations raise only a “metaphysical doubt as to the
material facts.” See Albiero v. City of Kankakee, 246 F.3d
927, 932 (7th Cir. 2001) (quoting Johnson v. Univ. of
Wisconsin-Eau Claire, 70 F.3d 469, 477 (7th Cir. 1995)
(internal quotation marks omitted)).
14 No. 02-1995
2. Failure to wait
As for the Molinas’ alternative argument that the po-
lice failed to wait a reasonable amount of time after an-
nouncing their presence to forcibly enter the house, we
are similarly unconvinced. Police officers’ compliance
with the “knock and announce” requirement is determined
on a case-by-case basis. See Richards, 520 U.S. at 392;
United States v. McGee, 280 F.3d 803, 806 (7th Cir. 2002).
In United States v. Jones, we found that a five to thir-
teen second wait after “knocking and announcing” did not
violate the Fourth Amendment where “the officers had
information that the defendant was a dangerous felon in
possession of a gun,” and an additional wait would have
given the defendant time to destroy drugs. See 208 F.3d
603, 610 (7th Cir. 2000). The facts in the instant case
are similar. The officers had information that Raul, a
suspected drug distributor, owned weapons and had a
violent criminal history. Although the duration is dis-
puted, the officers claim that five seconds passed after
their third and final knock, and that a total of twelve to
fifteen seconds passed between their first knock and forcible
entry.5 Under the circumstances, we find that this was a
reasonable interval. Even if it was not, the officers would
be entitled to qualified immunity. The plaintiffs have
not cited any cases which clearly establish that an inter-
val of this length was unconstitutional at the time that
they conducted the search. See Saucier, 533 U.S. at 201-
02. Therefore, we affirm the district court’s grant of sum-
mary judgment for the officers on the “knock and announce”
claim.
5
Even if this time frame is inaccurate as the plaintiffs contend,
the Molinas have not bolstered this argument with any evidence.
Just as Jackie’s testimony fails to establish a dispute as to
whether the officers “knocked and announced” at all, it fails to
establish a genuine dispute regarding the time frame of the
“knock and announce.”
No. 02-1995 15
D. Use of Flash Bang Devices
The Molinas also object to the officers’ use of flash bang
devices in their basement, claiming that such use was
unnecessary and resulted in unreasonable damage to
their bar cabinets, television speaker, and garage door.
However, the Molinas have failed to establish that the
officers’ actions were unreasonable.
When assessing whether a constitutional violation has
occurred, “[t]he Fourth Amendment inquiry is one of ‘ob-
jective reasonableness’ under the circumstances.” See
Graham v. Connor, 490 U.S. 386, 399 (1989); see also
Wallace by Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010,
1014-15 (7th Cir. 1995) (stating that “all Fourth Amend-
ment reasonableness inquiries must [retain] an objective
perspective”). Here, the officers had information that
Raul had a criminal record that included aggravated
assault, was at home, and had access to weapons. Thus, the
officers had ample reason to be concerned about their
personal safety. Moreover, flash bang devices were not
used in the presence of Jackie or the children, who were
secured in the living room, and no one was harmed by
them. Therefore, while we in no way suggest that use of
flash bang devices is appropriate in every case (or even
most cases6), we find that their use was reasonable un-
der the circumstances, and the Molinas did not suffer a
constitutional violation.7
6
Indeed, we have voiced reservations about the use of these
devices in recent cases, although we have not gone so far as to
find their use unconstitutional. See United States v. Folks, 236
F.3d 384, 388 (7th Cir. 2001); Jones, 214 F.3d at 837-38.
7
We note in passing that even if we agreed that a constitutional
right was violated when the officers used flash bang devices, the
right was not clearly established in July 1998 when the search
(continued...)
16 No. 02-1995
E. Damage to the Truck
The Molinas finally contend that the console and hood
of their truck sustained unnecessary damage during the
search. We first note that the Molinas have not pointed
to any evidence in the record that the alleged damage
was unreasonable. Additionally, plaintiffs do not claim to
have actually seen any of the seventeen officers involved
in the search damage the truck. Moreover, Jackie and
Raul acknowledge that their sons had access to the ga-
rage. Nevertheless, the Molinas assert that the circum-
stantial evidence—namely Officer Cooper’s admission that
he was inside the truck at one point (although he de-
nied damaging the hood)—is sufficient to raise a factual
dispute as to whether Officer Cooper damaged the truck.
While we agree with the Molinas that circumstan-
tial evidence can be compelling, like any other evidence
it depends on its strength. The facts in this case bear a
strong resemblance to those in Hessel v. O’Hearn, 977 F.2d
299 (7th Cir. 1992). In Hessel, summary judgment was
granted to fourteen officers when the plaintiffs admitted
that they could not identify which of the officers stole
various items from the plaintiffs’ home. Id. at 305. The
Molinas attempt to distinguish Hessel because the plaintiffs
in that case suffered from a complete inability to distin-
guish the wrongdoer, whereas here the plaintiffs assert
that Officer Cooper is the likely culprit. However, the
7
(...continued)
warrant was executed. At that time, few cases even cited the use
of such devices disapprovingly, and in any event those courts
found their use reasonable under the circumstances. See, e.g.,
United States v. Myers, 106 F.3d 936, 940 (10th Cir. 1997); United
States v. Kingsley, No. 97-40095-01-RDR, 1998 WL 295577, at *3-4
(D. Kan. May 21, 1998). Thus, even if we found their actions to
be unreasonable, the officers would be entitled to qualified im-
munity. Saucier, 533 U.S. at 201-02.
No. 02-1995 17
Molinas have not alleged a conspiracy of silence among
the officers (a move that might have strengthened their
argument that Hessel is inapplicable), and the evidence
linking Officer Cooper, one of seventeen officers who could
conceivably have damaged the truck, is simply too thin to
survive summary judgment. No jury could reasonably
infer from this evidence that Officer Cooper caused the
damage to the truck. Hessel is therefore fatal to the plain-
tiffs’ claim, and the district court’s grant of summary
judgment for the officers was proper.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-15-03