Chachere v. Chicago

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL CHACHERE, )

)

Plaintiff, ) 16 C 2401

)

vs. ) Judge Gary Feinerman

)

CITY OF CHICAGO, DANIELLE DEERING, and )

CORY JUNIOUS, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

In this suit under 42 U.S.C. § 1983 and Illinois law against the City of Chicago and two

of its police officers, Danielle Deering and Cory Junious, Michael Chachere alleges that his

home was unlawfully searched, that he was unlawfully arrested, detained, and prosecuted on

groundless charges, and that personal property seized upon his arrest was unlawfully destroyed.

Doc. 1. The court has dismissed the property destruction claims. Docs. 39-40 (reported at 2017

WL 372306 (N.D. Ill. Jan. 26, 2017)). Defendants now move for summary judgment on the

remaining claims. Doc. 67. The motion is granted in part and denied in part.

Background

The following facts are set forth as favorably to Chachere as the record and Local Rule

56.1 permit. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). On summary judgment,

the court must assume the truth of those facts, but does not vouch for them. See Arroyo v. Volvo

Grp. N. Am., LLC, 805 F.3d 278, 281 (7th Cir. 2015).

On October 14, 2014, Sheila Shannon, a real estate agent, contacted the police because

she believed that intruders had entered a home, located at 7646 South Perry Avenue in Chicago,

that she was responsible for selling. Doc. 71 at ¶¶ 12-13, 16. Officers Deering and Junious were

dispatched to investigate. Id. at ¶¶ 5-6. Upon arriving, they saw two people who matched a

description of the intruders. Id. at ¶ 7. One of the individuals ran inside the house and shut the

door. Id. at ¶ 8. The officers tried to follow him in, but the door was locked. Ibid.

At some point, Deering spoke with Shannon. Id. at ¶¶ 11-12, 19. The parties dispute the

content and even the existence of the conversation. Defendants assert that Deering called

Shannon after noticing her number on a “For Sale” sign outside the home and that Shannon gave

the officers permission to search the home. Ibid. In support, Defendants cite Shannon’s

deposition testimony that she “authorized a search of the house.” Doc. 69-3 at 8. Chachere

asserts that because Shannon cannot recall having received a call from the police, no

conversation occurred. Doc. 71 at ¶ 11. However, Shannon and the officers testified that they

spoke, and Shannon testified that she called the police at some point on October 14, id. at ¶¶ 11,

19; Doc. 69-3 at 6, so the record establishes that a conversation did take place.

Chachere asserts that the officers, during their depositions, identified only the home’s

owner, and not Shannon, as the source of their consent to search the home. Doc. 71 at ¶¶ 11, 19.

It is true that Junious mentioned only the home’s owner as the source of the consent. Id. at

pp. 227-228. But Deering testified that she spoke with Shannon, who told her (Deering) that she

(Shannon) “wanted [the officers] to remove [any intruders] … .” Id. at p. 281. Deering’s

testimony favors Defendants, but it does no more than create a genuine dispute as to whether

Shannon consented to a broad search of the home (as she testified) or merely told the officers to

remove any intruders (as Deering testified). This dispute must be resolved in Chachere’s favor,

so for purposes of summary judgment, Shannon told Deering that the officers could enter the

home to search for intruders, but did not give them permission to conduct a broader search.

The home’s owner, in a call with Deering, also gave the officers permission to enter and

remove any individuals who were inside. Id. at ¶¶ 20-21; see id. at pp. 278-279. Chachere

asserts that the owner authorized the officers only to remove intruders, while Defendants assert

that the officers were given “permission to investigate and to search the residence.” Id. at ¶ 21.

This dispute is resolved in Chachere’s favor. Junious testified that he believed that the owner

had consented to a search of her home, but that information was relayed to him by Deering. Id.

at p. 228. And Deering testified that the owner had told her only that “she didn’t want anyone in

the house. If anyone was there … they needed to be removed from the house.” Doc. 69-2 at 6.

For purposes of summary judgment, then, the owner authorized the officers only to remove

intruders from the home.

Some time later, the intruder who had entered the home came outside. Doc. 71 at ¶ 22;

Doc. 77 at ¶ 6. He was detained along with the other individual the officers observed when they

arrived. Doc. 77 at ¶¶ 6, 9. Both men stated that they lived at the home. Id. at ¶ 9. The officers

then decided to enter the home without a search warrant. Doc. 71 at ¶ 26; Doc. 77 at ¶¶ 6-7.

Before entering, the officers learned that there might be guns in the home. Doc. 71 at

¶ 18. (That fact is supported by this testimony from Junious: “The way it was related to me from

the phone calls was that no one was supposed to be there. And that—whoever is there, there

might be guns in the house. So from that, we wanted to search the house.” Doc. 69-1 at 12.

Chachere provides no reason to doubt his testimony.) The officers also were told that Chachere

was the only person permitted in the home. Doc. 71 at ¶ 17. (Citing the officers’ testimony,

Defendants assert that they were told that Chachere’s girlfriend might be staying with him, but

that there should not be any “young people staying at the residence.” Ibid. Chachere counters

with Shannon’s testimony that she informed the police that “no one is supposed to be [in the

house] except the guy Michael.” Ibid. (citing Doc. 71 at p. 42). On summary judgment, this

dispute is resolved in Chachere’s favor.)

Upon entering the home, which has four bedrooms and is “pretty big,” the officers

conducted an initial search to see if anybody was present. Id. at ¶ 26; Doc. 77 at ¶¶ 11, 25-26.

“[A]fter determining no one else was in the home,” they conducted a broader search for evidence

of a crime. Doc. 71 at ¶¶ 26-27. During that search, the officers found two firearms. Id. at ¶ 28.

They also found ammunition in an upstairs bedroom, spent casings and a bulletproof vest in the

basement, and mail linking Chachere to the residence. Id. at ¶¶ 29-30.

Chachere returned home after the searches had been completed. Id. at ¶ 31. He provided

the officers with his identification, which listed his as 7646 South Perry Avenue. Id. at ¶¶ 32-33.

Chachere told the officers that the two detained individuals were his girlfriend’s children and that

they lived at the home. Doc. 77 at ¶ 10. One of the officers ran Chachere’s name and learned he

was a convicted felon. Doc. 71 at ¶ 34.

The officers arrested Chachere because, as a convicted felon, he could not legally possess

firearms. Id. at ¶ 38. The officers then “created official police reports containing the false

claims that [Chachere] ‘spontaneously uttered upon his arrival “I’m a security guard and the guns

are mine,”’ that [Chachere] was given Miranda warnings, and that [Chachere] then stated again,

‘I’m a security guard and the guns are mine.’” Doc. 77 at ¶ 15. Chachere did not, in fact, say

those things. Id. at ¶¶ 13-15.

Chachere was charged with two counts of being an armed habitual criminal and three

counts of unlawful use of a weapon. Doc. 71 at ¶ 39. He spent some four months in pretrial

detention at Cook County Jail. Doc. 77 at ¶ 30. The state trial court granted Chachere’s motion

to quash and suppress evidence on the ground that any exigent circumstances that could have

justified the officers’ warrantless search of the home had dissipated by the time they entered.

Doc. 71 at ¶ 39. The prosecutor dismissed the criminal charges nolle prosequi in March 2015, at

which point Chachere was released. Id. at ¶ 42.

Discussion

Chachere alleges that the officers violated his Fourth Amendment rights by searching his

home without a warrant and by arresting and detaining him without probable cause, that they

violated the Fourteenth Amendment’s due process clause by fabricating evidence, and that they

committed the state law tort of malicious prosecution.

I. The Search of Chachere’s Home

Chachere alleges that the officers violated the Fourth Amendment by conducting a

warrantless search of his home. “It is axiomatic that the physical entry of the home is the chief

evil against which the … Fourth Amendment is directed. And a principal protection against

unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth

Amendment.” Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (quoting Welsh v.

Wisconsin, 466 U.S. 740, 748 (1984)). Outside a few “specifically established and well-

delineated exceptions,” a warrantless search of a person’s home is “per se unreasonable.” City of

Los Angeles v. Patel, 135 S. Ct. 2443, 2452 (2015) (internal quotation marks omitted).

Defendants argue that the search was justified under two such exceptions: exigent

circumstances and consent. Doc. 68 at 5. Defendants argue in the alternative that even if they

violated the Fourth Amendment, they are entitled to qualified immunity because, at the time the

search occurred, it was not “clearly established” that the search was unlawful. Id. at 11-12.

A. Exigent Circumstances

The “exigent circumstances exception … allows for a warrantless entry into a home when

there is a pressing need for the police to enter but insufficient time to secure a warrant.” United

States v. Tepiew, 859 F.3d 452, 456 (7th Cir. 2017) (internal quotation marks omitted).

Examples of exigent circumstances include the need to “protect or preserve life or prevent

serious injury,” United States v. Bell, 500 F.3d 609, 612 (7th Cir. 2007), to prevent the

“imminent destruction of evidence,” and “‘hot pursuit’ of a fleeing suspect,” Brigham City v.

Stuart, 547 U.S. 398, 403 (2006). “[A] police officer’s subjective belief that exigent

circumstances exist is insufficient to justify a warrantless search.” Bogan v. City of Chicago, 644

F.3d 563, 571 (7th Cir. 2011) (internal quotation marks omitted). Rather, “[w]hen reviewing a

warrantless search to determine if exigent circumstances existed, [a court] conducts an objective

review, analyzing whether the government met its burden to demonstrate that a reasonable

officer had a reasonable belief that there was a compelling need to act and no time to obtain a

warrant.” United States v. Andrews, 442 F.3d 996, 1000 (7th Cir. 2006) (internal quotation

marks omitted). The review must be based on “the totality of facts and circumstances as they

would have appeared to a reasonable person in the position of the … officer—seeing what he

saw, hearing what he heard.” Bogan, 664 F.3d at 571-72 (internal quotation marks and emphasis

omitted).

Defendants argue that exigent circumstances justified their warrantless search because the

officers did not know if there were any victims, or any remaining intruders, in the home, and also

because they were aware that there might be guns in the home and could reasonably have felt “a

compelling need to investigate to determine what had happened” when one of the suspected

intruders locked himself inside. Doc. 68 at 6. True enough, the officers’ initial search of the

home for victims or additional intruders may have been justified by exigent circumstances. See

United States v. Ross, 565 F. App’x 505, 509 (7th Cir. 2013) (noting that “[e]xigent

circumstances exist … when … there is a need to render emergency assistance to an injured

occupant or to protect an occupant from imminent injury,” and also when “officers fear that a

gun may be fired at them or others from within [a] dwelling”). But after that search turned up no

victims or other intruders, the exigency passed, which means that the officers’ subsequent search

for guns or other evidence of a crime was unjustified by any exigency. See Mincey v. Arizona,

437 U.S. 385, 393-94 (1978) (holding that there were no exigent circumstances justifying the

officers’ search of an apartment to “gather evidence” after they had determined that there no

longer were any potential suspects or victims present, adding that there was “no indication that

evidence would be lost, destroyed, or removed during the time required to obtain a search

warrant”); United States v. Robles, 37 F.3d 1260, 1264 (7th Cir. 1994) (explaining that although

exigent circumstances justified the officers’ warrantless entry of a residence, those circumstances

“only permitted their entry and securing of the residence,” adding that “once this was complete[,]

any threat of evidence being destroyed was eliminated,” and thus a “subsequent search or seizure

[would have to be] justified by a warrant or an exception to the warrant requirement”); United

States v. Rivera, 825 F.2d 152, 157 (7th Cir. 1987) (“Once a room is legally entered under

exigent circumstances, a subsequent search or seizure of items in the room must be justified by a

warrant or an exception to the warrant requirement.”).

A mere desire to uncover and preserve evidence of a crime—where, as here, there is no

indication that the evidence was in danger of being destroyed—does not give rise to exigent

circumstances. See Jacobs v. City of Chicago, 215 F.3d 758, 769-70 (7th Cir. 2000) (noting that

“[s]pecific facts indicating that evidence is likely to be destroyed must be present in order for

exigent circumstances to exist,” and denying dismissal of an unlawful search claim where there

were “as yet no facts on the record that would support a reasonable officer’s conclusion that

evidence of a crime was in imminent danger of being destroyed … at the time [officers] …

conducted [a] search”). This is so even where the evidence consists of firearms. See Ross, 565

F. App’x at 510 n.3 (“We are troubled by the idea that exigent circumstances exist simply

because law enforcement officers have probable cause to believe a person has a firearm in his

home—a right guaranteed by the Constitution.”). It follows from these precedents that exigent

circumstances did not justify the officers’ subsequent search of the home for firearms or other

evidence of crime.

The officers’ invocation of qualified immunity fails as well. To establish that a defendant

violated a clearly established right, “a case directly on point is not required”; rather, the court

need only identify “existing precedent” that, at the time of the alleged violation, had “placed the

statutory or constitutional question beyond debate.” Gill v. City of Milwaukee, 850 F.3d 335,

340 (7th Cir. 2017) (internal quotation marks omitted); see also Forman v. Richmond Police

Dep’t, 104 F.3d 950, 957-58 (7th Cir. 1997) (“To demonstrate that a right is clearly established,

[a plaintiff] need not show that the very action in question was previously held unlawful … or

that a prior case is on all fours with the facts and the law in their case. Instead, closely analogous

cases, those decided before the defendants acted or failed to act, are required … .”) (internal

quotation marks omitted). Here, in light of Mincey, Robles, and Jacobs, the inapplicability of the

exigent circumstances exception to the officers’ subsequent search of the home was clearly

established in October 2014, when the search occurred. See McAllister v. Price, 615 F.3d 877,

885 (7th Cir. 2010) (affirming the denial of summary judgment where governing precedent did

not “involve the same scenario at issue [in the case] … [but did] suggest that the [defendant]

should have been on notice that elements of his conduct could violate [the plaintiff’s]

constitutional rights”).

B. Consent

“A warrantless search does not violate the Fourth Amendment if a person possessing, or

reasonably believed to possess, authority over the premises voluntarily consents to the search.”

United States v. Groves, 530 F.3d 506, 509 (7th Cir. 2008). However, a “[c]onsensual search is

reasonable under the Fourth Amendment [only] so long as it remains within the scope of

consent.” United States v. Jackson, 598 F.3d 340, 348 (7th Cir. 2010). “The standard for

measuring the scope of consent under the Fourth Amendment is one of objective reasonableness

and asks what the typical reasonable person would have understood by the exchange between the

law enforcement agent and the person who gives consent.” Ibid. This scope principle ensures

that law enforcement officials cannot “obtain someone’s consent to search by misrepresenting

that they intend to look only for certain specified items and subsequently use that consent to

justify a general exploratory search.” Ibid.

Chachere argues that because the home’s owner and Shannon gave the officers consent

only to remove intruders, the consent extended only to the “initial search to determine that no

one else was in the home.” Doc. 72 at 9. He is correct, at least on summary judgment. As set

forth above, the summary judgment record, viewed with all genuine disputes resolved in

Chachere’s favor, shows that Shannon and the home’s owner authorized the officers only to

remove intruders from the home, not to conduct a broader search for guns or other evidence of

crime. It follows that the officers’ subsequent, broader search of the home, which was conducted

only for the latter purpose, fell outside the scope of the consent they had received. See United

States v. Rahman, 805 F.3d 822, 831-34 (7th Cir. 2015) (holding that consent to search a

basement “to determine the origin and cause of [a] fire” did not “encompass a search for

secondary and circumstantial evidence of arson,” and noting that “any evidence collected …

after [an officer] reached his conclusion about the origin of the fire … should have been

excluded”); United States v. Dichiarinte, 445 F.2d 126, 128-30 (7th Cir. 1971) (holding that the

officers exceeded the scope of the defendant’s consent to search his home for narcotics where

they searched for and seized currency exchange receipts and other documents, reasoning that the

officers went “beyond what was necessary to determine whether defendant had hidden narcotics

among his personal papers” by “read[ing] through those papers to determine whether they gave

any hint that defendant was engaged in criminal activity”). A reasonable jury thus could find

that the officers lacked consent to conduct the search during which the firearms were found.

The officers’ invocation of qualified immunity fails. Pre-October 2014 precedent clearly

established that the permissible reach of a warrantless search is bounded by the scope of the

consent given and received. See Jackson, 598 F.3d at 348 (“Law enforcement agents may not

obtain someone’s consent to search by misrepresenting that they intend to look only for certain

specified items and subsequently use that consent to justify a general exploratory search.”);

Michael C. v. Gresbach, 526 F.3d 1008, 1015 (7th Cir. 2008) (noting that the scope of consent is

limited by the breadth of actual consent, and holding that it was unreasonable for the defendant

to believe the consent received to interview children “included consent to conduct a search of the

children’s bodies”). Indeed, the Seventh Circuit’s 1971 decision in Dichiarinte is essentially on

all fours with this case. Just as the officer in Dichiarinte was given consent to search only for

narcotics in the defendant’s home, the officers here were given consent only to enter the home to

search for and remove intruders. And as in Dichiarinte, the officers’ eyes began to wander once

they entered the home, and they commenced a broader, unlawful search outside the scope of the

consent they had received. Dichiarinte thus clearly established that the officers’ subsequent,

broader search of the home to look for evidence that “gave any hint that [someone in the home]

was engaged in criminal activity” was unlawful. 445 F.2d at 130.

It bears mention that under the plain view doctrine, if while “acting within the parameters

of [Chachere’s] consent [the officers] had come upon contraband, fruits or instrumentalities of

crime, or clear evidence of criminal behavior which was lying in plain view, they could have

seized those items.” Id. at 130. But the record does not suggest that the firearms recovered from

the home were in plain view when the officers conducted their initial sweep to determine if any

victims or additional intruders were in the home.

II. Chachere’s Arrest

In seeking summary judgment on Chachere’s false arrest claim, the officers argue that no

reasonable jury could find that they lacked probable cause to arrest him for violating 720 ILCS

5/24-1.1(a). Doc. 68 at 9-10; Doc. 76 at 8. That statute makes it “unlawful for a person to

knowingly possess on or about his person or on his land or in his own abode or fixed place of

business any weapon … or any firearm or any firearm ammunition if the person has been

convicted of a felony under the laws of [Illinois] or any other jurisdiction.”

“Probable cause to arrest is an absolute defense to any claim under Section 1983 against

police officers for wrongful arrest.” Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir.

2006); see also Cook v. O’Neill, 803 F.3d 296, 301 (7th Cir. 2015). “A police officer has

probable cause to arrest a suspect if, at the time of the arrest, the facts and circumstances within

the officer’s knowledge are sufficient to warrant a prudent person in believing that the suspect

has violated the law.” D.Z. v. Buell, 796 F.3d 749, 755 (7th Cir. 2015). “Probable cause is a

common-sense determination, measured under a reasonableness standard. … It is an objective

test, based upon factual and practical considerations of everyday life on which reasonable and

prudent men, not legal technicians, act.” Humphrey v. Staszak, 148 F.3d 719, 726 (7th Cir.

1998) (internal quotation marks omitted). Moreover, “even if probable cause is lacking with

respect to an arrest, an officer is entitled to qualified immunity if his subjective belief that he had

probable cause was objectively reasonable. Thus, when a defense of qualified immunity has

been raised, [a court must] ask whether the officer actually had probable cause or, if there was no

probable cause, whether a reasonable officer could have mistakenly believed that probable

existed. In other words, [a court asks] whether the officer had ‘arguable’ probable cause.” D.Z.,

796 F.3d at 755 (internal citations and quotation marks omitted).

It is undisputed that Chachere was a felon. Even where, as here, a felon is not found in

“actual possession” of a weapon, he can still be guilty of unlawfully possessing a firearm in

violation of 720 ILCS 5/24-1.1(a) if he had “constructive possession” of the firearm. People v.

Spencer, 965 N.E.2d 1135, 1141 (Ill. App. 2012). “Constructive possession may be proved if the

defendant controlled the premises where [the contraband was] found,” and habitation “in or

rental of the premises where [the contraband was] discovered is sufficient evidence of control to

constitute constructive possession.” People v. Blue, 799 N.E.2d 804, 813-14 (Ill. App. 2003);

see also People v. Givens, 934 N.E.2d 470, 484 (Ill. 2010) (noting that proof “that a defendant

had control over the premises where [contraband was found] … gives rise to an inference of

knowledge and possession of the [contraband]”); People v. Maldonado, 35 N.E.3d 1218, 1224-

28 (Ill. App. 2015); Spencer, 965 N.E.2d at 1141; People v. Cunningham, 723 N.E.2d 778, 782

(Ill. App. 1999); People v. Crowder, 2016 IL App (1st) 140252-U, at ¶ 29 (Ill. App. 2016). Mail

addressed to an individual can be “used to support an inference that [a] defendant controlled the

location where … contraband was recovered regardless of whether the defendant was present at

the time of the seizure.” Maldonado, 35 N.E.3d at 1225. And “constructive possession of

contraband can be established even where possession is joint or others have access to the area

where the contraband is recovered.” Id. at 1228; see also People v. Hill, 589 N.E.2d 1097, 1088-

89 (Ill. App. 1992); People v. Williams, 424 N.E.2d 1234, 1236-37 (Ill. App. 1981).

The summary judgment record makes clear that the officers reasonably could have

believed that Chachere constructively possessed the firearms recovered from his home. The

officers were told that Chachere was the only person permitted in the home and that there were

guns present. During their search, the officers located mail linking Chachere to the home. And

upon Chachere’s arrival at the scene, the officers discovered that his identification listed 7646

South Perry Avenue as his address. This evidence more than sufficed to support a reasonable

inference that Chachere had control over the residence and thus that he constructively possessed

any firearms found therein in violation of 720 ILCS 5/24-1.1(a).

Chachere contends that the fact that he informed the officers upon his arrival that the two

individuals they had detained also lived at the home, which brought the number of residents (and

potential owners of the firearms) to three, alters the probable cause analysis. According to

Chachere, because the officers are, in effect, “rely[ing] on a claim of constructive possession, a

legal fiction whereby a person is deemed to possess contraband even when he does not actually

have immediate, physical control of the object,” the Seventh Circuit’s decision in United States

v. Griffin, 684 F.3d 691 (7th Cir. 2012), requires that they demonstrate a “substantial connection

between [him] and the contraband” given that he “jointly occupie[d]” the home with others.

Doc. 72 at 11 (quoting Griffin, 684 F.3d at 697).

It is true that Griffin held that the defendant there could not be convicted of felon-in-

possession under 18 U.S.C. § 922(g)(1) because the government could not establish that the

defendant, who jointly occupied the home where the gun was found, had a “‘substantial

connection’ … [with] the contraband.” 684 F.3d at 697. It also is true that the Seventh Circuit

has held that 720 ILCS 5/24-1.1(a) is “clearly the state law counterpart to § 922(g)(1).” Negrete-

Rodriguez v. Mukasey, 518 F.3d 497, 502 (7th Cir. 2008). Still, there is no indication that

Illinois courts have adopted Griffin’s requirement that a “substantial connection” exist between

the defendant and the firearm itself—as opposed to between the defendant and the residence

where the firearm is found—when evaluating whether a defendant constructively possessed a

firearm. To the contrary, the Appellate Court of Illinois has held that “habitation in the premises

where contraband is discovered is sufficient evidence of control to constitute constructive

possession” under 720 ILCS 5/24-1.1(a). Spencer, 965 N.E.2d at 1141; see also People v.

Brown, 2015 IL App (1st) 122581-U, ¶ 17 (Ill. App. June 30, 2015).

In any event, Griffin addresses the evidence necessary at trial to establish beyond a

reasonable doubt that an individual constructively possessed a firearm, not the evidence

necessary upon arrest to establish probable cause of constructive possession. 684 F.3d at 694.

Griffin therefore does not govern whether the officers here had probable cause to believe that

Chachere constructively possessed the firearms found in the home. See Parker v. Duckworth,

659 F. App’x 364, 367 (7th Cir. 2016) (“None of this was conclusive proof that Parker was

guilty, but it provided probable cause.”); Beal v. Skaff, 418 F.2d 430, 433 (7th Cir. 1969)

(“While probable cause means more than a bare suspicion, it need not constitute evidence

sufficient to convict.”). And for the reasons given above, even if the officers were compelled to

trust Chachere’s word that two other persons resided at the home, the officers could reasonably

have believed that he constructively possessed the firearms located there. Moreover, at the very

least, the circumstances facing the officers gave rise to arguable probable cause because they

could reasonably have believed that they had probable cause to arrest Chachere, entitling them to

qualified immunity.

The officers accordingly are entitled to summary judgment on the false arrest claim.

III. Chachere’s Pretrial Detention

For many years, Seventh Circuit precedent barred plaintiffs from bringing Fourth

Amendment claims for wrongful post-arraignment, pretrial detention; as the Seventh Circuit

explained, “once detention by reason of arrest turns into detention by reason of arraignment—

once police action gives way to legal process—the Fourth Amendment falls out of the picture

and the detainee’s claim that the detention is improper becomes a claim of malicious prosecution

violative of due process.” Llovet v. City of Chicago, 761 F.3d 759, 763 (7th Cir. 2014). Last

year, however, the Supreme Court held in Manuel v. City of Joliet, 137 S. Ct. 911 (2017), that a

plaintiff could state a “Fourth Amendment claim when he sought relief not merely for his (pre-

legal-process) arrest, but also for his (post-legal-process) pretrial detention,” where the time he

spent in detention was “unsupported by probable cause.” Id. at 919. Chachere alleges that his

detention in Cook County Jail for four months following his arrest violated the Fourth

Amendment because Deering lacked probable cause “to sign criminal complaints charging

[him]” with violating 720 ILCS 5/24-1.1(a), the felon-in-possession statute, and 720 ILCS 5/24-

1.7(a), which provides that a person “commits the offense of being an armed habitual criminal if

he … receives sells, possesses or transfers any firearm after having been convicted a total of 2 or

more times [of certain offenses].” Doc. 72 at 9; see Doc. 68 at 3; Doc. 69 at 58.

Defendants contend that because Manuel “confirms a right to be free from detention

absent probable cause,” it follows that “probable cause would be a bar to any such claim.” Doc.

68 at 9. They are correct. The plaintiff in Manuel alleged that his 48-day pretrial detention

violated the Fourth Amendment because it “was based solely on false evidence, rather than

supported by probable cause.” 137 S. Ct. at 917. In holding that the plaintiff stated a viable

claim, the Supreme Court reasoned that the “Fourth Amendment prohibits government officials

from detaining a person in the absence of probable cause,” which occurs not only “when the

police hold someone without any reason before the formal onset of a criminal proceeding,” but

also when “legal process itself goes wrong—when, for example, a judge’s probable-cause

determination is predicated solely on a police officer’s false statements.” Id. at 918 (emphasis

added). After all, in the latter situation, a “person is confined without constitutionally adequate

justification,” and while “[l]egal process has gone forward … it has done nothing to satisfy the

Fourth Amendment’s probable-cause requirement.” Id. at 918-19.

Manuel teaches that pretrial detention unsupported by any probable cause—for example,

where, as in Manuel, the only basis for the plaintiff’s detention was fabricated evidence—

violates the Fourth Amendment. Chachere alleges that the officers fabricated evidence against

him—namely, that he admitted to the officers upon arriving at the scene that the firearms were

his. However, that evidence was not the only basis for the charges against Chachere and his

resulting detention; rather, as shown above, the officers had probable cause to arrest Chachere

based solely on the reasonable belief that, as the lone resident or one of three residents of the

home, he had at least constructive possession of the firearms found during the search. Because

the officers had probable cause to arrest Chachere without regard to the fabricated evidence, and

because Chachere does not even attempt to argue that the probable cause inquiry for his

wrongful arrest claim differs from the inquiry for his wrongful detention, the officers are entitled

to summary judgment on the Fourth Amendment pretrial detention claim.

IV. Fabrication of Evidence

Chachere alleges that the officers violated his Fourteenth Amendment due process rights

by fabricating his statements that the firearms belonged to him. This type of claim is called a

“Whitlock” claim because in Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012), the

Seventh Circuit held that “a police officer who manufactures false evidence against a criminal

defendant violates due process if that evidence is later used to deprive the defendant of her

liberty in some way.” Id. at 580.

Defendants’ only ground for summary judgment on the Whitlock claim—they do not

present any argument for qualified immunity on that particular claim, Doc. 68 at 11-13; Doc. 76

at 11-12, thereby forfeiting the point—is that the dismissal of the charges against Chachere

before trial forecloses the claim. Doc. 68 at 11. The undersigned judge held two years ago,

based on Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010), and Brooks v. City of Chicago, 564 F.3d

830 (7th Cir. 2009), that a plaintiff who suffered pretrial detention but who was not convicted

has no viable Whitlock claim. See White v. City of Chicago, 149 F. Supp. 3d 974, 978-79 (N.D.

Ill. 2016) (noting that Fox and Brooks held, “in circumstances where [a] plaintiff had not been

convicted,” that an evidence fabrication claim “sounded in malicious prosecution and thus could

not be brought under the Due Process Clause”). That holding cannot stand in light of the

Seventh Circuit’s recent decision in Hurt v. Wise, 880 F.3d 831 (7th Cir. 2018), which held that

an individual who was prosecuted, but not convicted, for murder could assert a Whitlock claim

against officers who filed a false “police report asserting that [he] had made incriminating

statements to them when he was being transported after his interrogation.” Id. at 838, 843-44;

but cf. Manuel, 137 S. Ct. at 918-19 (“The Fourth Amendment prohibits government officials

from detaining a person in the absence of probable cause. That can happen when the police hold

someone without any reason before the formal onset of a criminal proceeding. But it also can

occur when legal process itself goes wrong—when, for example, a judge’s probable-cause

determination is predicated solely on a police officer’s false statements. Then, too, a person is

confined without constitutionally adequate justification. Legal process has gone forward, but it

has done nothing to satisfy the Fourth Amendment’s probable-cause requirement. And for that

reason, it cannot extinguish the detainee’s Fourth Amendment claim—or somehow, as the

Seventh Circuit has held, convert that claim into one founded on the Due Process Clause. If the

complaint is that a form of legal process resulted in pretrial detention unsupported by probable

cause, then the right allegedly infringed lies in the Fourth Amendment.”) (citations omitted).

Hurt therefore defeats Defendants’ sole argument for summary judgment on the Whitlock claim.

V. State Law Malicious Prosecution Claim

The elements of malicious prosecution under Illinois law are: “(1) the defendants

commenced judicial proceedings, (2) for which there was no probable cause, (3) the proceeding

were instituted or continued maliciously, (4) the proceedings were terminated in the plaintiff’s

favor, and (5) the plaintiff sustained an injury.” Saunders-El v. Rohde, 778 F.3d 556, 561 (7th

Cir. 2015). “The absence of any one of these elements bars a plaintiff from pursuing the claim.”

Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996); see also Johnson v. Saville, 575 F.3d 656,

659-61 (7th Cir. 2009). Chachere’s malicious prosecution claim cannot satisfy the second

element because, as shown above, the officers had probable cause to charge him with unlawful

possession of a firearm.

Nor can Chachere establish the fourth element, that the state criminal proceedings were

terminated in his favor. To be favorable, a termination must be “indicative of the innocence of

the accused.” Swick, 662 N.E.2d at 1242. To determine whether a termination is indicative of

the accused’s innocence, a court examines the circumstances, not the form or title, of the

disposition of the criminal charges. See Cult Awareness Network v. Church of Scientology Int’l,

685 N.E.2d 1347, 1352-53 (Ill. 1997). The dismissal of charges is not indicative of innocence if

it “is the result of an agreement or compromise with the accused, misconduct on the part of the

accused for the purpose of preventing trial, mercy requested or accepted by the accused, the

institution of new criminal proceedings, or the impossibility or impracticability of bringing the

accused to trial.” Swick, 662 N.E.2d at 1243.

The charges against Chachere were dismissed nolle prosequi after the state trial court

“granted [Chachere’s] motion to quash and suppress evidence on the grounds that [any] exigent

circumstances had diminished” by the time the officers entered the home. Doc. 71 at ¶¶ 39-40.

Given these circumstances, no reasonable jury could find that the termination of the criminal

proceedings against Chachere was indicative of his innocence. See Washington v. Summerville,

127 F.3d 552, 557 (7th Cir. 1997) (holding that the malicious prosecution plaintiff could not

show favorable termination where the prosecutor dismissed the charges nolle prosequi after the

state court granted the plaintiff’s motion to suppress certain statements); Johnson v. City of

Chicago, 2016 WL 5341810, at *5 (N.D. Ill. Sept. 23, 2016) (same, where the charges were

dismissed nolle prosequi after trial judge suppressed evidence that a firearm was found on the

defendant’s person); Horan v. City of Chicago, 2010 WL 2836729, at *8 (N.D. Ill. July 16,

2010) (same, where “the narcotics found in plaintiff's apartment were discovered during an

improper search and could not be used as evidence against plaintiff”); Johnson v. Arroyo, 2010

WL 1195330, at *3 (N.D. Ill. Mar. 22, 2010) (“[A] dismissal following suppression of evidence

for a technical reason [that did not call into question the reliability of the evidence or pertain to

culpability] is not a reason indicative of innocence, so it cannot support a malicious prosecution

claim.”).

VI. Indemnification Claim Against the City

Defendants move for summary judgment on Chachere’s indemnification claim against

the City. The Illinois Local Governmental and Governmental Employees Tort Immunity Act,

745 ILCS 10/1 et seq., provides in relevant part that “[a] local public entity is not liable for an

injury resulting from an act or omission of its employee where the employee is not liable.” 745

ILCS 10/2-109. As shown above, Chachere’s Fourth Amendment unlawful search and

Fourteenth Amendment evidence fabrication claims against the officers survive summary

judgment. The indemnification claim accordingly survives as well.

Conclusion

Defendants are granted summary judgment as to Chachere’s Fourth Amendment false

arrest, Fourth Amendment unlawful detention, and state law malicious prosecution claims, but

not as to his Fourth Amendment unlawful search, Fourteenth Amendment fabricated evidence,

and state law indemnification claims. The surviving claims will proceed to trial.

February 28, 2018

United States District Judge

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