Davis, Michael E. v. Novy, Charles

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4096
MICHAEL E. DAVIS,
Plaintiff-Appellant,
v.
CHARLES NOVY, individually and in his capacity
as a Bolingbrook, Illinois, police officer for the Village
of Bolingbrook, and LUIS ESCOBAR, individually and
in his capacity as a Bolingbrook police officer for
the Village of Bolingbrook,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 572—Arlander Keys, Magistrate Judge.
____________
ARGUED SEPTEMBER 22, 2005—DECIDED JANUARY 6, 2006
____________
Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. In this case, brought under
42 U.S.C. § 1983, Michael Davis alleges that two police
officers from the Village of Bolingbrook, Illinois, violated his
rights under the Fourth Amendment by stopping his truck
without probable cause and searching it and his home
under the authority of a written “consent to search” he was
coerced into signing. The officers insist that
Davis voluntarily consented to the searches and that
an obscured registration sticker on his license plate sup-
2 No. 04-4096
plied probable cause for the stop. After 3 days of trial before
a jury, Magistrate Judge Arlander Keys (presiding with the
parties’ consent, see 28 U.S.C. §636(c)(1)) granted the
defendants’ motion for judgment as a matter of law, finding
that the evidence left no doubt about the validity of Davis’s
consent and that probable cause for the stop was unques-
tionably present.
The officers, Charles Novy and Luis Escobar, were
investigating an anonymous 9-1-1 telephone call about a
man in a black truck taking pictures of a little girl who was
walking on a sidewalk with her father. The caller also told
the police dispatcher of another incident in the same area
involving an individual taking pictures of girls after school.
While Escobar was trying to find other information about
the call, Novy spotted Davis’s truck. It wasn’t a perfect
match—Davis’s truck was dark green— but it was close, so
Novy decided to follow while waiting for further word from
Escobar. Novy testified that as he was following the truck,
he saw that the registration sticker—displaying the month
of issuance on the Illinois license plate—was obscured, in
violation of state law. See 625 ILCS 5/3-413(b). He decided
to pull Davis over to look into the matter.
When Novy walked up to the truck’s window, Davis asked
about the reason for the stop: “I asked him . . . did I commit
some sort of traffic violation or traffic infraction.” According
to Davis, Novy replied “no” and told him about the 9-1-1
call. Naturally, Davis was troubled by the suggestion
implicit in the call—that he might be some sort of a
pedophile. (There is absolutely nothing in the record to
suggest that Davis is in any respect a bad guy.) Davis was
concerned, however, because he was in fact taking pictures
that day, though not of children. Rather, he was trying to
document a problem with Bolingbrook’s snowplowing which,
on this February day, left piles of snow blocking the side-
walks. Why was he concerned? He uses a wheelchair, and
No. 04-4096 3
the snow piles made it difficult for him to get around.1
Davis had his camera with him in the truck, and the
camera bag was plainly visible in the truck’s cab. When
Novy saw the camera bag, he become more convinced
that he had found the truck he was looking for. He asked
Davis for his driver’s license and proof of insurance,
which Davis didn’t have. And Davis’s driver’s license was
from Indiana. Davis explained that he had moved to Illinois
some 6 months before and had not yet obtained an Illinois
driver’s license. Illinois law requires that an Illinois driver’s
license be obtained within 90 days of a driver’s move into
the state. See 625 ILCS 5/6-102(7).
Other items Novy saw in the cab—rope, duct tape, and
towels covering the upholstery—heightened his suspi-
cions. Concerned that he might have a kidnapper (or a
possible crime involving children) on his hands, he asked
Davis for permission to search the vehicle. Davis says
that when he asked Novy what would happen if he refused,
Novy told him that because he had no valid driver’s license
or proof of insurance, his truck would be impounded and he
would be taken to jail. See 625 ILCS 5/6-101(d). Worried
that he would be unable to get by without his truck, Davis
consented. He got out of the truck and waited with Officer
Escobar (who had by then arrived on the scene) while Novy
looked around the cab. The search turned up additional,
perhaps suspicious, items: a ticket stub from a children’s
zoo, court documents from South Dakota, and an unusual
article of clothing— women’s thong underwear—behind the
driver’s seat.
1
Although fairly described as a “wheelchair-bound person,” Davis
is, it appears, able to do some walking. At one point during the
encounter, he exited the truck and walked to its rear without
assistance.
4 No. 04-4096
At this point, Novy felt that further investigation was
warranted. He conferred with Escobar and decided to
ask Davis for permission to search his house. He pre-
sented Davis with a fairly standard police “consent to
search” form, which Davis signed. The three of them
then went to Davis’s house, where Novy conducted the
search. Finding nothing of concern, Novy ended the encoun-
ter by writing Davis up for three vehicle-code
violations: having no valid driver’s licence, operating an
uninsured vehicle, and displaying an obscured registra-
tion sticker. The whole encounter between Davis and the
officers lasted 2 hours.
Davis eventually sued Officers Novy and Escobar. He
claimed that the initial traffic stop was illegal because the
officers lacked probable cause to believe that he had
committed, or was committing, an offense. On this point,
the district court decided, and neither party disagrees, that
the anonymous tip was an insufficient basis for the
stop—not only was it uncorroborated, see Florida v. J.L.,
529 U.S. 266, 270 (2000); United States v. Johnson,
427 F.3d 1053, 1057 (7th Cir. 2005), but it didn’t describe
anything illegal. (Taking drive-by photos of children may be
suspicious, but by itself it isn’t against the law.) And the
officers did not learn that Davis had an invalid driver’s
license and no proof of insurance until after the stop.
That leaves the registration sticker on Davis’s license
plate. If, as Novy asserts, he saw the obscured sticker while
following Davis, he had probable cause to pull him over for
a violation of the vehicle code, even if the real reason for the
stop was to investigate the anonymous 9-1-1 call. See Whren
v. United States,2 517 U.S. 806, 813 (1996) (officer’s subjec-
tive motive irrelevant to reasonableness of traffic stop);
2
Whren is the seminal case on traffic stops. Strangely, it is
not cited by Davis.
No. 04-4096 5
United States v. Rogers, 387 F.3d 925, 934 n.9 (7th Cir.
2004). But Davis claims that Novy didn’t see the obscured
sticker until later (though he admits that the sticker was in
fact obscured). He relies on three pieces of circumstantial
evidence: (1) when Davis asked about the reason for the
stop, Novy didn’t mention the obscured sticker but instead
told him about the child-picture-taking complaint; (2) Novy
didn’t stop him as soon as he allegedly saw the obscured
sticker; (3) the transcript of the radio communications
among Novy, Escobar, and the dispatcher contains no
mention of an obscured sticker.
Like Magistrate Judge Keys, we do not believe that
this evidence seriously calls into question whether Novy
saw the obscured sticker before stopping Davis’s truck. It is
undisputed that Novy followed Davis’s truck for about
a half a mile before signaling him to pull over. We cannot
imagine that Novy did not look at the truck’s rear license
plate during that time. After all, that’s what police offi-
cers do when following a vehicle. Also, the fact that Novy
didn’t stop Davis immediately upon seeing the sticker
means little—police are not required to make their move at
the first sign of an offense, and in this case it was reason-
able for Novy to wait and see if any further information was
forthcoming from Officer Escobar. Nor is it unexpected that
an officer will hold back from telling a motorist all of his
reasons for initiating a stop. Simply put, Davis does not
dispute that the sticker was obscured, and he has not
presented sufficient evidence to persuade a rational
factfinder that Novy did not see it before the stop as he
testified.
Davis also claims that he was coerced into consenting
to the search of his truck and his home. The voluntariness
of a consent to search is judged by the totality of the
circumstances. See Schneckloth v. Bustamonte, 412 U.S.
218, 229 (1973); Ruvalcaba v. Chandler, 416 F.3d 555, 560
(7th Cir. 2005). Davis’s argument rests primarily on two
6 No. 04-4096
circumstances. First, the nature of the allegation: under
suspicion of possible pedophile-like behavior, his choice was
to cooperate or risk an unbearable stigma. But if
grave accusations were inherently coercive, as this ar-
gument suggests, then a valid consent would be impos-
sible to obtain in connection with any serious offense.
Davis identifies a second circumstance which is more
specific: Novy’s declaration that if Davis did not consent
to the searches, his truck would be impounded and he
would be taken into custody. But this wasn’t a baseless
threat: the Illinois Vehicle Code directs that a driver who is
lacking both license and insurance “shall have his or her
motor vehicle immediately impounded by the arresting law
enforcement officer.” 625 ILCS 5/6-101(d). We asked the
parties at oral argument whether this provision imposes a
binding obligation on the arresting officer to impound the
vehicle. They have not called our attention to any authorita-
tive interpretation on the point by Illinois courts. But the
best, and we suggest the most common-sense understanding
of the statute, is that an officer can exercise discretion on
whether a vehicle should be impounded. After all, if im-
pounding of vehicles under all circumstances was required,
a small village like Bolingbrook (population 40,843) could
very well be overrun with impounded cars.
Whether mandatory or discretionary, the statute au-
thorized Novy to impound Davis’s truck. And given what
Novy was faced with—a report of suspicious photo-taking;
a driver with an out-of-state license carrying rope, duct
tape, towels, and ladies’ underwear in his truck—it was
reasonable for him to use the tools available to him to
investigate further. One way would have been to impound
the vehicle and perform the search when the truck was
in custody. Another way was to obtain Davis’s consent.
He gave Davis a reasonable choice, and we can’t con-
clude that Novy’s offer was coercive. And, it is important to
note, Davis got exactly what he hoped to get by consenting:
No. 04-4096 7
He was not arrested and his truck was not impounded. The
fact that Novy apparently elected not to enforce the Illinois
law to its fullest doesn’t mean Davis’s consent was illegally
obtained. It would be different, of course, if the threat of
arrest and/or impoundment of the truck was unauthorized
by state law. In that case, Novy would have obtained a
consent with an empty threat, and the result would be
different.
Finally, although the stop here was permissible with
probable cause under Whren, it could be argued that
the information available to Novy might well have justi-
fied a brief investigatory stop based on reasonable suspicion
under Terry v. Ohio, 392 U.S. 1 (1968). Given that we live in
a time of increasing crimes against children— what with
“Amber Alerts” and all—the limited intrusion of a brief
traffic stop under circumstances like those present in this
case cannot be easily labeled as unlawful.
We agree with the district court that no reasonable jury
could find that Novy lacked probable cause to stop Davis or
that Davis’s consent to the search of his truck and his home
was legally coerced. We therefore AFFIRM the court’s
judgment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-6-06