Hanson v. DANE COUNTY, WIS.

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1759

D AVID H ANSON,

Plaintiff-Appellant,

v.

D ANE C OUNTY, W ISCONSIN, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 08-cv-058-bbc—Barbara B. Crabb, Judge.

A RGUED JANUARY 21, 2010—D ECIDED JUNE 15, 2010

Before E ASTERBROOK, Chief Judge, and C UDAHY and

M ANION, Circuit Judges.

E ASTERBROOK, Chief Judge. By the time the 911

dispatcher in Dane County picked up the phone to

receive a call, the connection had been broken. The dis-

patcher called back; no one answered. Police were

alerted, and three officers soon arrived at the house

from which the call had been placed. They entered

without permission and questioned the four occupants:

2 No. 09-1759

David Hanson, his wife Karen, and their daughters

Kari (then 15 years old) and Kelly (13). Eventually they

learned that during a heated argument David had

bumped Karen, who dialed 911. David was arrested for

domestic battery. Karen refused to cooperate with the

prosecution, which was dismissed. David then filed this

suit under 42 U.S.C. §1983, contending that the police

violated the fourth, fifth, and fourteenth amendments

to the Constitution. But the district court granted sum-

mary judgment to the defendants. 599 F. Supp. 2d 1046

(W.D. Wis. 2009). We recite the facts of record and rea-

sonable inferences in the light most favorable to David.

According to David, the police violated the fourth

amendment by entering without probable cause and

refusing to leave as soon as Karen asked them to go.

Like the district judge, we think that a 911 call provides

probable cause for entry, if a call back goes unanswered.

The 911 line is supposed to be used for emergencies

only. A lack of an answer on the return of an incomplete

emergency call implies that the caller is unable to pick up

the phone—because of injury, illness (a heart attack, for

example), or a threat of violence. See United States v.

Jenkins, 329 F.3d 579, 581 (7th Cir. 2003); United States v.

Richardson, 208 F.3d 626, 629–30 (7th Cir. 2000). Any of

these three possibilities supplies both probable cause

and an exigent circumstance that dispenses with the

need for a warrant. See Brigham City v. Stuart, 547 U.S. 398

(2006). There are of course other possibilities. Perhaps

a child dialed 911 by mistake, or perhaps the ringer

had been set to silent so the phone did not alert

anyone to the incoming call from the 911 dispatcher. But

No. 09-1759 3

probable cause just means a good reason to act (the fourth

amendment protects people against “unreasonable”

searches and seizures); it does not mean certainty, or

even more likely than not, that a crime has been com-

mitted or a medical emergency is ongoing. See Illinois v.

Gates, 462 U.S. 213, 235 (1983).

Karen asked the police to leave, but officers who

have probable cause need not cancel an investigation on

request. The fourth amendment does not contain a least-

restrictive-alternative rule. See Skinner v. Railway Labor

Executives’ Association, 489 U.S. 602, 629 n.9 (1989). Nor

did Karen’s statement that she was unharmed establish

that there was no need for further inquiry. See United

States v. Brooks, 367 F.3d 1128, 1137 (9th Cir. 2004); Fletcher

v. Town of Clinton, 196 F.3d 41, 50 (1st Cir. 1999). To the

contrary, her statements supported the officers’ actions.

Karen told the police that she had called 911 but

could not remember why; she said that she and David

had been arguing but that she could not remember the

subject. The argument and call were so recent that rea-

sonable officers could not have believed Karen’s asser-

tion that her memory had failed. Her obviously false

statements, plus her nervous demeanor, led the police

to think that she had been threatened or feared retalia-

tion should she give honest answers. Many victims of

domestic violence fear that the danger they face will

increase if they assist police or prosecutors. See, e.g.,

Eve S. Buzawa & Carl G. Buzawa, Domestic Violence: The

Criminal Justice Response 177–89 (3d ed. 2002); Tom

Lininger, Prosecuting Batterers after Crawford, 91 Va. L. Rev.

747, 768–70 (2005) (collecting studies). So the police

4 No. 09-1759

acted reasonably by continuing their investigation and

questioning Karen and David out of each other’s presence.

And, given the lack of cooperation by David and Karen,

it was also reasonable for the officers to ask Kari and

Kelly for information. This questioning was civil and

ended promptly after the daughters said that they

did not know what their parents had been arguing

about and did not believe that a physical altercation

had occurred.

David insists that the questions to his daughters

violated principles of substantive due process. Yet the

daughters are not plaintiffs, either directly or through

a next friend. David’s suit depends on his rights, not

theirs. Substantive due process is a doctrine limited to

impingement on fundamental rights, see Washington v.

Glucksberg, 521 U.S. 702, 719-22 (1997), and no decision

of which we are aware holds that parents have a funda-

mental right to prevent police from questioning their

children. The public has a right to every person’s evi-

dence. United States v. Bryan, 339 U.S. 323, 331 (1950).

Courts regularly find no constitutional problem in

posing questions to minors over their parents’ opposition.

See, e.g., United States v. Hollingsworth, 495 F.3d 795,

800–03 (7th Cir. 2007). Police must not act arbitrarily

when questioning children, see Doe v. Heck, 327 F.3d

492, 517–26 (7th Cir. 2003), but it was not arbitrary

to find out whether Kari and Kelly knew what had hap-

pened.

Although “familial relations” are fundamental, see

Troxel v. Granville, 530 U.S. 57, 65 (2000), the police did not

No. 09-1759 5

break up the Hanson family; they just asked some ques-

tions of the daughters to learn whether a crime had

occurred. Police don’t need probable cause to ask ques-

tions, because the subject can refuse to answer. See United

States v. Childs, 277 F.3d 947 (7th Cir. 2002) (en banc).

“Familial relations are fundamental” is a principle at

too high a level of generality to be useful in con-

sidering whether police may ask questions of a family’s

minor children. Cf. Michael H. v. Gerald D., 491 U.S. 110,

118–27 (1989) (plurality opinion).

David’s arrest did more to separate members of the

family than a few minutes’ questioning of his daughters

could do, but he does not contend that arrests of people

with children are unconstitutional; brief questioning

thus cannot be unconstitutional either. That the ques-

tioning took place out of the parents’ presence does not

change the analysis. Private questioning of witnesses

reduces the risk that a suspect (such as David) would

induce a witness to give untruthful answers. See Davis v.

Washington, 547 U.S. 813, 830 (2006); cf. White v.

Markham, 310 F.3d 989, 996 (7th Cir. 2002). Whether the

police should respect parents’ objections to questioning

their children is a matter for wise police practice, and

legislative decision, rather than constitutional-tort litiga-

tion under §1983.

This leaves David’s contention that the police violated

his privilege against self-incrimination when they ques-

tioned him without first delivering the warnings that

Miranda v. Arizona, 384 U.S. 436 (1966), requires before

custodial interrogation. One officer led David to his

6 No. 09-1759

garage, so that he could be questioned separately from

Karen. It was in the garage that David admitted

bumping Karen during the argument, an admission that

led to his arrest. The district court resolved this issue

on the basis of qualified immunity, ruling that a rea-

sonable officer would not have understood that the

questioning was “custodial.” See Beckwith v. United

States, 425 U.S. 341 (1976), which holds that questioning

a person at home is not apt to be coercive, and thus is not

“custodial,” if the person has not been arrested. The

officer did not place David under arrest until after he

made his admission. Though David says that he

thought himself in custody, the standard is objective.

It is unnecessary to decide whether the balance of

objective indicators points toward a finding of “custodial

interrogation,” because the privilege against self-incrimina-

tion, and thus the Miranda doctrine, concerns the use

of compelled statements in criminal prosecutions. Police

cannot “violate Miranda,” despite colloquial usage. The

constitutional rule is the privilege; the Miranda warnings

are designed to ensure that the privilege is not waived

without understanding (and, if the suspect requests

it, legal assistance). There’s nothing wrong with com-

pelling people to speak. It is done all the time through

formal grants of immunity. See 18 U.S.C. §§ 6001–05.

And the results of interrogation without Miranda

warnings are admissible in civil cases, something that

would be impossible if the interrogation itself violated

the Constitution. See Baxter v. Palmigiano, 425 U.S. 308,

315 (1976) (Miranda warnings not necessary in custodial

interrogation if the ensuing statements are used in

prison discipline rather than criminal prosecution).

No. 09-1759 7

We know from Chavez v. Martinez, 538 U.S. 760 (2003),

that interrogation that yields incriminatory evidence

never used in court does not support an award of dam-

ages. Id. at 766–70 (plurality opinion), 777–79 (Souter, J.,

concurring); Sornberger v. Knoxville, 434 F.3d 1006, 1024–25

(7th Cir. 2006) (“[a]fter Chavez . . . violation of the Miranda

safeguards cannot provide the basis for §1983 liability

without use of a suspect’s statements against him in a

‘criminal case.’ ”). See also Buckley v. Fitzsimmons, 919

F.2d 1230, 1244 (7th Cir. 1990), reversed in part with

respect to other issues, 509 U.S. 259 (1993). David

does not contend that his statements were introduced

into evidence in a criminal prosecution. There was no

trial, and although he appeared in court twice—once to

plead not guilty and once for a pretrial conference—he

does not say that his statement was introduced into

evidence on either occasion. See Sornberger, 434 F.3d at

1024 (concluding that any “courtroom use” of a state-

ment derived from custodial interrogation is covered by

the privilege and thus Miranda). Unless simply being

arrested is enough to make the preceding interrogation

unconstitutional, there is no problem. Yet an arrest does

not entail the use of evidence in a criminal prosecution;

the arrest precedes the prosecution. The police there-

fore did not violate David’s privilege against self-incrimi-

nation, whether or not they should have given him

Miranda warnings.

A FFIRMED

6-15-10