Wheeler et al v. City of Chicago, Illinois, The et al

Filing 134

MEMORANDUM Opinion and Order: For the reasons stated in the accompanying Memorandum Opinion and Order, Defendants' motion for summary judgment, 98 , is granted. Enter judgment and terminate civil case. See Order for further details. Signed by the Honorable Manish S. Shah on 2/9/2017. Mailed notice(ep, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILLIAM WHEELER, et al.,
Plaintiffs,

No. 14 CV 3380

v.
WILLIAM HRONOPOULOS, et al.,

Judge Manish S. Shah

Defendants.
MEMORANDUM OPINION AND ORDER
Police officers searched plaintiffs Joyce Thomas and William Wheeler’s
apartment and another apartment in the same building. The officers found guns,
ammunition, and drugs. An occupant of the first-floor apartment—where the guns
were found—said that she was holding the guns for Wheeler. Wheeler’s wife,
Thomas, denied knowing about the guns or the drugs. A few weeks after the search,
two patrol officers saw Wheeler on the street and arrested him. Wheeler was
prosecuted on gun and drug charges, and found not guilty.
Wheeler and his wife filed suit against the officers involved in the
investigation and arrest (and against the City of Chicago for indemnification).
Plaintiffs voluntarily dismissed some claims. [92].1 The remaining claims are for
unlawful search and false arrest—brought under the Fourth Amendment and 42
U.S.C. § 1983—and a state-law claim for malicious prosecution. Defendants move
for summary judgment.

1

Bracketed numbers refer to entries on the district court docket.

Summary judgment is appropriate if there is no genuine dispute as to any
material fact, and the defendants are entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). I view the facts—and draw any reasonable inferences from those
facts—in the light most favorable to plaintiffs. Local Rule 56.1(b)(3) requires
plaintiffs to cite to specific supporting material when disagreeing with an assertion
by defendants, and facts will be deemed admitted if not properly controverted with
supporting evidence. Strict compliance with the local rules is required. See Ammons
v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004).
In some instances, plaintiffs have not complied with the local rule. For
example, in response to several paragraphs of defendants’ statement of facts,
plaintiffs admit that the witness testified as described by the fact, but deny the
underlying fact without citation to the record. [118] ¶¶ 40, 43, 44, 58–62. These
facts will be deemed admitted. Plaintiffs also deny a fact without any citation. [118]
¶ 75. That fact is deemed admitted.
Plaintiffs object to some of defendants’ facts on the basis of hearsay. This case
involves search warrants obtained with information from a “John Doe” informant,
and defendants relate the information provided by John Doe in their Local Rule
56.1 statement (with citations to the testimony of officer Hronopoulos). A search
warrant can be based on hearsay, see e.g., United States v. Hollingsworth, 495 F.3d
795, 805 (7th Cir. 2007), and John Doe’s statements are offered here not for the
truth of the matters asserted but to relate the information upon which the search
warrants were based. Plaintiffs may dispute the truth of John Doe’s statements, but

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by simply objecting on the basis of hearsay and not offering any contrary facts, they
do not dispute that John Doe in fact said the things he said. Plaintiffs’ hearsay
objections to defendants’ paragraphs 5 through 12 are overruled, and those facts are
deemed admitted, for the limited purpose of stating the basis for the defendants’
probable cause assessment. See [94] ¶¶ 5–12. Plaintiffs’ hearsay objection to
paragraph 41 is overruled for similar reasons—that fact is a statement of
Hronopoulos’s belief that the guns belonged to Wheeler, which was based on
information related to Hronopoulos by others. [94] ¶ 41. Hronopoulos may describe
the information in his possession, and a court can consider that information when
assessing probable cause, without running afoul of the hearsay prohibition. Woods
v. City of Chicago, 234 F.3d 979, 986–87 (7th Cir. 2000). Plaintiffs Joyce Thomas’s
and William Wheeler’s statements to officers are statements of party opponents and
are not hearsay. Fed. R. Evid. 801(d)(2). Plaintiffs’ hearsay objections to paragraphs
45 and 46 are overruled and the statements are admitted. [94] ¶¶ 45–46.
With those evidentiary disputes resolved, the material, undisputed facts are
as follows. John Doe told Officer Hronopoulos that William Wheeler stored guns in
the first and second-floor apartments at 4522 West Van Buren, Chicago, Illinois.
Hronopoulos was familiar with John Doe—he had given information for search
warrants twice before and those searches were positive. Hronopoulos showed a
picture of Wheeler to John Doe, and John Doe identified the person in the
photograph as William Wheeler. Hronopoulos did not know Wheeler. John Doe was
driven to 4522 West Van Buren and he identified the building as the place where

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guns were being stored. Hronopoulos typed up a search warrant, it was approved by
the State’s Attorney’s Office, and Hronopoulos brought John Doe to a judge. The
judge spoke to John Doe, and John Doe’s statements to the judge were consistent
with his statements to Hronopoulos. The judge approved two search warrants—one
for the first-floor apartment and one for the second-floor apartment. [95-2], [95-3].
The warrants authorized the search of Wheeler and the apartments for a “blue steel
semi auto firearm” as evidence of the unlawful use of a weapon by a felon. Id.2 The
judge issued the warrants on May 7, 2012, at 6:49 and 6:51 p.m. Id.
Officers executed the warrants at 4522 West Van Buren. Plaintiffs Joyce
Thomas and William Wheeler lived in the second-floor apartment, and Thomas’s
sister lived on the first floor. There is a dispute over whether Sergeant Maher
showed Thomas a copy of the warrant, and so I assume Thomas was not shown the
warrant. But Thomas admits that she was not inside her home when the search
began and was outside the building for the duration of the search. Three guns were
found in a backpack in the first-floor apartment. Officer Zarbock found heroin and
ammunition on the top shelf of the back porch of the second-floor apartment.
Zarbock processed the evidence but did not submit any of it for fingerprint analysis.
Thomas’s sister told the police that she stored the guns for William Wheeler and

The complaint or affidavit in support of the search warrants is not part of the record on
summary judgment. But plaintiffs do not dispute that the information related by
Hronopoulos in his deposition was the information supplied to the judge issuing the search
warrants, nor do plaintiffs argue that the judge was misled or that Hronopoulos omitted
material information from the search warrant application.
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that she feared for her safety—she was afraid that Wheeler would hurt her.3
Thomas denied knowing how the drugs got on the second-floor porch, denied
knowing about the guns on the first floor, and told the officers to talk to William
Wheeler.
Wheeler was not present during the search, but he called his wife while she
was talking to Sergeant Maher. Wheeler said he would turn himself in, but he did
not show up. The search lasted about two hours, and nothing was missing or
damaged on the second floor after the search.
A little over five weeks later, on June 16, 2012, Officers Haney and Conner
were on patrol. Haney and Conner were not involved in the search, but Conner had
been told by another officer that Wheeler was a target of a search that recovered
weapons and drugs. Conner knew Wheeler from patrolling neighborhood, and when
Conner saw Wheeler on the street, he arrested him. Conner and Haney brought
Wheeler to the police station, where he was interviewed by Hronopoulos. During an
interview with Hronopoulos, Wheeler said that he was storing the guns for someone
else. At the time of the search, Wheeler was a convicted felon.
Plaintiffs argue that there was no probable cause for the search because John
Doe’s information was hearsay. This is not sufficient to defeat summary judgment
because, as noted above, probable cause may be based on hearsay from an
anonymous informant. E.g., Illinois v. Gates, 462 U.S. 213, 244–45 (1983). While the
summary judgment record does not contain the complaint in support of the
When Thomas later learned that her sister told the police that the guns belonged to
Wheeler, Thomas beat up her sister.
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warrants or John Doe’s basis for saying there were guns in the apartment, there is
no dispute that: he had twice provided reliable information for search warrants in
the recent past; he identified Wheeler and the apartment building; he was brought
before a judge who could test his credibility; and the judge approved the search
warrants based on John Doe’s information. Plaintiffs do not argue that any material
information was omitted from the search warrant application or that the judge was
misled, and so the warrant is presumed to be valid. United States v. Childs, 447
F.3d 541, 546 (7th Cir. 2006). The defendants cannot be liable for executing a valid
search warrant, and plaintiffs have failed to come forward with any evidence
undermining the officers’ good faith in relying on the warrant. Since the evaluation
of qualified immunity in obtaining a search warrant is similar to that used in
applying the good-faith standard, Junkert v. Massey, 610 F.3d 364, 369 (7th Cir.
2010), and since reliance on the warrant was not objectively unreasonable,
defendants are protected from liability by qualified immunity.
Plaintiffs argue that there is a material factual dispute over the
reasonableness of the search of Thomas’s apartment and argue that the search was
warrantless, because she was not shown the warrant and did not consent to the
search. But plaintiffs do not dispute—with any admissible evidence—that a judge
issued warrants for the two apartments. The Fourth Amendment does not require
the executing officer to serve the warrant on the owner before commencing the
search, see Groh v. Ramirez, 540 U.S. 551, 562 n.5 (2004), and so the dispute over
whether Thomas saw the warrant is not material to the warrant’s validity.

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Although plaintiffs’ brief is unclear, they may be claiming that the execution of the
warrant was unreasonable, and therefore unconstitutional, because Thomas was
not shown a copy of it. There is no constitutional requirement that the warrant be
shown during its execution, see United States v. Stefonek, 179 F.3d 1030, 1034 (7th
Cir. 1999), and plaintiffs cite no authority clearly establishing that Thomas had a
Fourth Amendment right to receive the warrant from Maher. At a minimum, the
officers are protected by qualified immunity from a claim concerning the execution
of the warrant. See Ashcroft v. al-Kidd, 563 U.S. 731, 742–43 (2011). The search
lasted no more than two hours, Thomas was outside the apartment for the duration
of the search, and it caused no damage to Thomas’s apartment. The search was
conducted reasonably, and defendants are entitled to summary judgment on claims
related to the execution of the warrant.
John Doe’s statement that Wheeler stored guns in the apartments, the
recovery of guns, ammunition, and drugs from the apartments, the sister’s
statement that she stored the guns for Wheeler, Thomas’s statement disclaiming
knowledge of the contraband and suggesting that officers speak to Wheeler,
Wheeler’s failure to turn himself in after suggesting that he would do so, and the
facts that one of the guns had been reported stolen, [96-3] at 3, and another gun had
a defaced serial number, id., gave officers reasonably trustworthy information to
believe that Wheeler committed the offenses of illegal possession of firearms and
drugs—in other words, probable cause to arrest Wheeler. See United States v.
Sawyer, 224 F.3d 675, 679 (7th Cir. 2000) (“So long as the totality of the

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circumstances, viewed in a common sense manner, reveals a probability or
substantial chance of criminal activity on the suspect’s part, probable cause
exists.”). Wheeler disputes whether the proof of residency recovered during the
search was sufficient to tie him to the apartment, but he does not dispute that he
lived in the second-floor apartment, and the quantum of evidence necessary to
establish probable cause does not require more than what the officers indisputably
had in hand after they left the search. Fingerprint analysis was not necessary,
because officers are not required to conduct additional investigation once probable
cause is established. Kelley v. Myler, 149 F.3d 641, 646 (7th Cir. 1998).
Officers arrested Wheeler about a month after the search, but the arresting
officers were not part of the search team. “[T]he police who actually make the arrest
need not personally know all the facts that constitute probable cause if they
reasonably are acting at the direction of another officer or police agency. In that
case, the arrest is proper so long as the knowledge of the officer directing the arrest,
or the collective knowledge of the agency he works for, is sufficient to constitute
probable cause.” Tangwall v. Stuckey, 135 F.3d 510, 517 (7th Cir. 1998) (quotation
and emphasis omitted). Even if the officer who tipped Officer Conner about Wheeler
was not a part of the search team, it is not disputed that the information Officer
Conner received was true—Wheeler was the target of a search that recovered guns
and drugs. The collective knowledge of Conner’s agency is properly attributed to
Conner under these circumstances, and Conner therefore had probable cause to
arrest Wheeler on sight in the public street. Moreover, since “qualified immunity

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protects all but the plainly incompetent or those who knowingly violate the law,”
Mullenix v. Luna, — U.S. —, 136 S.Ct. 305, 308 (2015) (quotation omitted), the
arresting officers here would be immune from liability. They were not plainly
incompetent in relying on information relayed by a fellow officer that truthfully
identified Wheeler as the wanted target of an investigation that had developed
probable cause to believe Wheeler illegally possessed guns and drugs. See D.Z. v.
Buell, 796 F.3d 749, 755 (7th Cir. 2015) (qualified immunity protects the reasonable
officer who could have mistakenly believed that probable cause existed).
Wheeler was acquitted after serving a year in detention, but to prove his
state-law malicious prosecution claim he must satisfy all five elements of the tort:
(1) commencement or continuation of an original proceeding; (2) termination of the
proceeding in favor of the plaintiff; (3) the absence of probable cause; (4) malice; and
(5) damages. Cairel v. Alderden, 821 F.3d 823, 834 (7th Cir. 2016). The failure to
establish any one element bars recovery. Id. There was probable cause for the
prosecution, because in addition to the probable cause to support Wheeler’s arrest,
there was evidence that Wheeler was a convicted felon and made a post-arrest
statement to Hronopoulos in which he admitted that he knowingly possessed the
guns. Probable cause is determined based upon the facts known to the prosecution
at the time of filing, “not the actual facts of the case or the guilt or innocence of the
accused.” Id. (citation omitted).
Wheeler was acquitted because the evidence did not prove beyond a
reasonable doubt that he possessed the contraband recovered from the search, and

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he regrettably spent a year in custody until his vindication. But the defendant
officers did not violate his constitutional rights, because they had a valid warrant to
search his apartment and probable cause to arrest him. In addition, the officers are
protected by qualified immunity. Defendants’ motion for summary judgment, [98],
is granted. Enter judgment and terminate civil case.

ENTER:
___________________________
Manish S. Shah
United States District Judge
Dated: 2/9/2017

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