Bogan v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2170

S HARON B OGAN,

Plaintiff-Appellant,

v.

C ITY OF C HICAGO, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:09-cv-03852—Matthew F. Kennelly, Judge.

A RGUED JANUARY 20, 2011—D ECIDED JULY 6, 2011

Before R IPPLE and H AMILTON, Circuit Judges, and

M URPHY, District Judge.Œ

R IPPLE, Circuit Judge. Sharon Bogan brought this

action under 42 U.S.C. § 1983, in which she claimed

that two Chicago police officers, Matthew Breen and

Œ

The Honorable G. Patrick Murphy, United States District

Judge for the Southern District of Illinois, is sitting by designa-

tion.

2 No. 10-2170

William Langley, had violated her rights under the

Fourth Amendment of the Constitution of the United

States when they entered and searched her home with-

out a warrant. The case was tried before a jury, and the

jury returned a verdict in the officers’ favor. Ms. Bogan

now appeals. She maintains that the district court

erred in instructing the jury and in rendering certain

evidentiary rulings. For the reasons set forth in the fol-

lowing opinion, we affirm the judgment of the district

court.

I

BACKGROUND

A. Facts

At about 2:30 a.m. on May 9, 2009, Officers Breen and

Langley responded to a report of domestic battery at

the apartment of Nicole Evans. Evans’s eight-year-old

son had dialed 911 and stated that his mother was

being beaten. Upon arriving at the second floor apart-

ment, the officers knocked on the door and announced

their presence; a male voice from inside the apartment

yelled, “What the f - - - - do you want?” R.123 at 190.

They also heard a woman screaming for help. They fol-

lowed the sounds of the woman’s pleas and located her

on the roof of the building.

When they found Evans, she was in a state of partial

undress and mentally distraught. She explained that her

No. 10-2170 3

boyfriend,1 Antonio Pearson, had been drinking all

day with friends. When Evans tried to wake him, Pearson

had beaten and choked her. The officers led Evans off

the roof into a stairwell; at that point, they observed

that she had “[l]acerations, scratch marks around her

neck and also bruising and scratch marks on her arms.”

R.123 at 239. Evans told the officers that she wanted

Pearson arrested. Officers Breen and Langley went

back up onto the roof to find a way into the apartment,

where they believed Pearson likely had gone and

where Evans’s children still were.

Through the window, Officer Langley then spotted

an African-American male in the bedroom of the apart-

ment. After making eye contact with Officer Langley, the

man ran out of the bedroom to the rear of the apartment.

The officers entered the apartment through an open

window and searched every room in the apartment;

while in the apartment, the officers received a flash mes-

sage informing them that there was a black male on

the rear porch of the building.

The officers then proceeded across the hall through

an open doorway. Although there was a stairwell to the

right, the officers did not believe that Pearson could

have escaped down the stairs because other officers had

arrived at the scene. Across the hall was a door, which

they believed led directly to the porch or a mudroom

adjacent to the porch. They tried the handle on the

1

The record is unclear if Antonio Pearson is Evans’s husband

or boyfriend.

4 No. 10-2170

door, but it was locked. Officer Breen then kicked the

door once or twice, but it was opened from within by

Ms. Bogan.

Ms. Bogan asked the officers for whom they were

looking. They responded Evans’s boyfriend. Ms. Bogan

replied, “That’s my son.” R.124 at 18. At the time that

Ms. Bogan opened her apartment door, there were be-

tween ten and twelve Chicago police officers already in

her apartment; they apparently had entered through

the back door. Officers Breen and Langley conducted

a search of her apartment, but they could not locate

Pearson.

B. District Court Proceedings

Ms. Bogan instituted this action; she alleged that

Officers Breen and Langley had violated her Fourth

Amendment rights by entering and searching her apart-

ment without a warrant.2 At trial, Officer Breen answered

the following question posed by his counsel:

Q. . . . At the time that you’re moving through

Nicole Evans’ apartment, did you believe

Antonio Pearson was moving to the rear

of the building?

A. Yes.

2

Ms. Bogan also named the City of Chicago “to obtain a

declaratory judgment of the City’s obligation to indemnify

defendants . . . for any judgment which may be entered

against [them] for compensatory damages.” R.16 at 1.

No. 10-2170 5

R.123 at 196. Ms. Bogan’s counsel objected to the testi-

mony on the ground that the question whether

Ms. Bogan’s Fourth Amendment rights were violated is

governed by an objective standard; consequently, the

officer’s subjective beliefs were irrelevant. The district

court responded: “It doesn’t mean subjective evidence

is irrelevant. The objection is overruled.” Id. Following

this ruling, Ms. Bogan’s counsel did not object to other

questions designed to elicit the officers’ impressions

or understanding of the situation. See id. at 197 (“What

did you expect was behind that door?”); id. at 202

(“Was there time to make an effort to secure a warrant

at this time? . . . Why not?”); R.124 at 8 (“And I believe

we left off with the issue of whether you had any reason

to believe there was a living quarters behind that door.

And what is your memory of that, sir?”). Ms. Bogan’s

counsel, however, did examine the officers extensively

on what they had observed and how reasonable—or

unreasonable—their actions might have been on the

evening they searched Ms. Bogan’s apartment. See R.123

at 210 (“And you didn’t have time to get a warrant? . . .

And you didn’t see that person that you were searching

for go into the apartment? . . . Nobody told you he

went into the apartment? . . . You just guessed that he’s

more likely to be in the apartment than down the stairs;

is that right?”); id. at 225 (“So you looked through every

room in that . . . apartment for Antonio; is that right? . . .

And you did that because you didn’t have any reason

to believe he had left; isn’t that right?”); id. at 234-35

(“You never heard [Pearson] open any doors to get out

of the apartment? . . . You didn’t see any footprints in

6 No. 10-2170

the hallway between the two apartments? . . . Nobody

told you that he was in the rear apartment, did they?”).

At the close of evidence, the district court instructed

the jury that it was Ms. Bogan’s burden to establish that

the officers had violated her rights. The court stated:

As a general rule, a police officer must have

a search warrant before he may enter a person’s

home or search a person’s home. However, the

law establishes certain exceptions to the require-

ment of a search warrant. One of those excep-

tions is referred to as the hot pursuit exception.

Under this exception, a police officer may enter

a person’s home if, under all the circumstances, a

reasonable officer would believe that the entry

is necessary to prevent the escape of a person who

is suspected of a crime and there is insufficient

time to obtain a search warrant. The question is

what a reasonable officer would believe, not

what the particular officers in this case actually

believed.

To succeed on their claim in this case as to

the particular defendant you’re considering,

Ms. Bogan must prove by a preponderance of the

evidence that a reasonable officer in the defen-

dant’s position would not have believed that a

crime suspect was in Ms. Bogan’s home.

No. 10-2170 7

R.124 at 90-91.3 After deliberating for just over an hour,

the jury returned a verdict for the defendants. The

district court later denied Ms. Bogan’s motion for judg-

ment as a matter of law and entered judgment for the

officers on the jury verdict. Ms. Bogan timely appealed.

II

DISCUSSION

A. Instructional Error

Ms. Bogan first maintains that the district court’s in-

struction on burden of proof constituted reversible

error. According to Ms. Bogan, the burden of proof fell

on the officers to establish that their actions were

justified by exigent circumstances. “We review jury

instructions de novo to determine whether, taken as a

whole, they correctly and completely informed the jury

of the applicable law.” Huff v. Sheahan, 493 F.3d 893, 899

(7th Cir. 2007). “We defer to the district court’s phrasing

of an instruction that accurately states the law; however,

we shall reverse when the instructions ‘misstate the

law or fail to convey the relevant legal principles in

full’ and when those shortcomings confuse or mislead

the jury and prejudice the objecting litigant.” Id. (quoting

Byrd v. Illinois Dep’t of Pub. Health, 423 F.3d 696, 705

(7th Cir. 2005)) (additional internal citation omitted).

3

The district court had employed the same language as part

of its preliminary instructions to the jury. See R.123 at 149.

8 No. 10-2170

We have not addressed the precise question raised by

this appeal: In a § 1983 warrantless-search action, in

which the defendants claim that the search was justified

based on exigent circumstances, which party bears the

burden of proving the presence or absence of such cir-

cumstances? However, we have confronted a related

question. In Valance v. Wisel, 110 F.3d 1269 (7th Cir. 1997),

we addressed the issue of which party in a warrantless-

search case bears the burden of establishing the plain-

tiff’s consent—or lack of consent—to the search. In

Valance, after recognizing that the circuits were split on

the issue of who, in the civil context, bore the burden of

proof on this issue, we expressed agreement with the

approach taken by the Second Circuit in Ruggiero v.

Krzeminski, 928 F.2d 558 (2d Cir. 1991). We stated:

In Ruggiero, for example, the Second Circuit

observed that although a warrantless search gener-

ally is considered presumptively unreasonable,

“[t]he operation of this presumption . . . cannot

serve to place on the defendant the burden of

proving that the official action was reasonable.”

928 F.2d at 563. The court concluded that at most,

the presumption may require the defendant to

produce evidence of consent or of some other recog-

nized exception to the warrant requirement. Id. Yet

once the defendant has done so, “the ultimate

risk of nonpersuasion must remain squarely on

the plaintiff in accordance with established princi-

ples governing civil trials.” Id. (citing Fed. R.

Evid. 301).

No. 10-2170 9

We generally agree with Ruggiero’s formulation

of the proper allocation of the parties’ burdens

in a section 1983 action alleging a Fourth Amend-

ment violation.

Valance, 110 F.3d at 1278-79 (emphasis added) (alteration

in original) (additional internal citations omitted). We

noted that, “[e]ven if a presumption of unreasonableness

arises from the fact of a warrantless search, that does not

serve in a civil case to shift ‘the burden of proof in the

sense of the risk of nonpersuasion.’ ” Id. at 1279 (quoting

Fed. R. Evid. 301). Instead, “[t]he presumption merely

serves to impose on the defendant ‘the burden of going

forward with evidence to meet or rebut the presump-

tion,’ which a defendant would do by presenting

evidence that the plaintiff consented to the search.” Id.

(quoting Fed. R. Evid. 301) (internal citation omitted).

Consequently, “[i]n order to prove that the search was

unreasonable, . . . the plaintiff would be required to show

either that he never consented or that the consent was

invalid because it was given under duress or coercion.” Id.

Our reasoning in Valance was informed by the nature

of civil cases and the principle that, in civil cases, the

plaintiff must bear the ultimate burden of nonpersuasion.

As suggested by our language in Valance, as well as that

of the Second Circuit in Ruggiero, this rationale applies

with equal force whether the officers seek to justify

their search based on consent or on “some other recog-

nized exception.” Valance, 110 F.3d at 1278.

Ms. Bogan acknowledges our holding in Valance but

argues that it should not apply to the circumstances

10 No. 10-2170

presented here. Ms. Bogan maintains that the dis-

tinction between consent and exigent circumstances is

an important one: The facts that determine whether

a plaintiff consented to a search are uniquely within

the plaintiff’s knowledge; however, the facts that

establish exigent circumstances are uniquely within the

knowledge of the pursuing officers. We do not find

this distinction persuasive. No part of our analysis

in Valance included reference to what information was

uniquely available either to the plaintiff or to the defen-

dant. Furthermore, Ms. Bogan does not point us to

any Fourth Amendment cases for which this considera-

tion played a role in determining the allocation of the

burden of proof. To the contrary, as the Government

demonstrates, other aspects of Fourth Amendment juris-

prudence undermine Ms. Bogan’s contention. For ex-

ample, “a plaintiff claiming that he was arrested without

probable cause carries the burden of establishing the

absence of probable cause,” McBride v. Grice, 576 F.3d

703, 706 (7th Cir. 2009) (per curiam); however, whether

an officer had probable cause for an arrest is wholly

dependent upon the facts known to the officer at the time

of the arrest.

Ms. Bogan also argues that extending Valance’s

rationale to searches justified on exigent circumstances

would place us at odds with our sister circuits.

Specifically, in her reply brief, she contends that this

court would create a split among the circuits if it were

to “hold that it is proper to instruct a jury that plaintiff

has the burden of [] disproving the existence of exigent

circumstances to justify a warrantless entry into the

home.” Reply Br. 7.

No. 10-2170 11

It is true that some circuits have placed the burden

of proof on the officer to establish exigent circumstances,

see, e.g., Armijo ex rel. Armijo Sanchez v. Peterson, 601

F.3d 1065, 1070 (10th Cir. 2010). However, there gen-

erally “is a difference of opinion in the federal courts as

to the burden of proof applicable to § 1983 unconstitu-

tional false arrest claims.” Davis v. Rodriguez, 364 F.3d

424, 433 n.8 (2d Cir. 2004) (observing that the Fifth

and Eleventh Circuits place the burden of proof on the

plaintiff and the Third and Tenth Circuits place the

burden of proof on the officers); see also Trulock v. Freeh,

275 F.3d 391, 401 n.4 (4th Cir. 2001) (noting the existence

of a split specifically with respect to the burden of estab-

lishing consent). Moreover, this split predated our deci-

sion in Valance. See Davis, 364 F.3d at 433 n.8 (citing cases).

Thus, extending the rationale of Valance to exigent cir-

cumstances may deepen a preexisting circuit split, but

it does not create a new one.

Moreover, we do not find the reasoning of the opinions

on which Ms. Bogan relies persuasive. Ms. Bogan points

to four court of appeals opinions in her reply brief:

Hardesty v. Hamburg Township, 461 F.3d 646, 655 (6th Cir.

2006); Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996);

Hopkins v. Bonvicino, 573 F.3d 752, 764 (9th Cir. 2009); and

Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1070

(10th Cir. 2010). Each of these cases, without discussion,

recites the proposition that “[t]he government bears the

burden of proving that exigent circumstances . . . existed

to justify a warrantless search,” Hardesty, 461 F.3d at

655, and relies on a criminal case for support, see, e.g., id.

(citing United States v. Bates, 84 F.3d 790, 794 (6th Cir.

12 No. 10-2170

1996)). However, for the reasons set forth in Valance

and Ruggiero, employing a criminal burden of proof is

contrary to “ ‘established principles governing civil tri-

als,’ ” namely, that “ ‘the ultimate risk of nonpersuasion

must remain squarely on the plaintiff.’ ” Valance, 110

F.3d at 1278 (quoting Ruggiero, 928 F.2d at 563).4

4

Ms. Bogan also argues that “[p]lacing the burden of proof on

the defendant would be in accord with the common law rule

‘that once a plaintiff showed arrest and imprisonment without

process, the burden shifted to the defendant to show justifica-

tion.’ ” Appellant’s Br. 19 (quoting Patzig v. O’Neil, 577 F.2d

841, 849 n.9 (3d Cir. 1978)). However, this case does not

involve a claim of false imprisonment, but of a warrantless

search. Moreover, in this circuit, we long have followed the

rule that “a plaintiff claiming that he was arrested without

probable cause carries the burden of establishing the absence

of probable cause.” McBride v. Grice, 576 F.3d 703, 706 (7th Cir.

2009) (per curiam) (collecting cases). Finally, we note that one

of the cases that Ms. Bogan relies upon, Martin v. Duffie, 463

F.2d 464, 467 (10th Cir. 1972), actually outlines much of the

same analysis that we adopt here. In Martin, the Tenth Circuit

stated:

It is true that the burden was on the plaintiff to estab-

lish an invasion of his rights: an illegal arrest. He did

so by showing arrest and confinement without a

warrant and without other justification. The plaintiff

having established a prima facie case, the initiative

passed to the defendant to go forward with evidence

showing justification. Ultimately plaintiff had what

is often described as the risk of nonpersuasion on the

(continued...)

No. 10-2170 13

4

(...continued)

issue of lack of probable cause. In the case at bar we

hold that plaintiff has sustained his burden of proof

as to lack of probable cause and in the dearth of ex-

planatory evidence was entitled to judgment.

Id. at 469.

Although Ms. Bogan has not come forward with any Seventh

Circuit law suggesting that the Valance approach may not be

appropriate, the officers did identify two cases which, it notes,

conceivably could be read to support Ms. Bogan’s argument

on burden of proof: Jacobs v. City of Chicago, 215 F.3d 758, 770

(7th Cir. 2000), and Llaguno v. Mingey, 763 F.2d 1560 (7th Cir.

1985) (en banc), abrogated on other grounds by County of

Riverside v. McLaughlin, 500 U.S. 44 (1985).

In Jacobs, the district court had dismissed the plaintiff’s

complaint on qualified immunity grounds. According to the

complaint, officers had sought and obtained a warrant to

search “ ’Troy,’ a 30-year-old black male, and a single family

residence at 15138 Lincoln Avenue.” Jacobs, 215 F.3d at 763-64.

When the officers arrived at the address, they discovered it

was an apartment building and executed the warrant on the

first floor apartment. The owner-occupant of the apartment

advised the officers that there were two other apartments in

the building, none occupied by a Troy. The officers, neverthe-

less, broke down the door of the second floor apartment,

where Jacobs, a sixty-year-old man, resided; one officer held

a gun to Jacobs’s head, while the other officer ransacked the

apartment. Jacobs later brought suit against the officers for

Fourth Amendment violations. The district court granted the

defendant-officers’ motion to dismiss on qualified immunity

(continued...)

14 No. 10-2170

Finally, Ms. Bogan maintains that, even if Valance articu-

lates the correct standard, “[t]his Court has cautioned

4

(...continued)

grounds. On appeal, we noted that “the notice pleading re-

quirements of Rule 8 do not require that a plaintiff anticipate

the assertion of qualified immunity by the defendant and

plead allegations that will defeat that immunity.” Id. at 765 n.3.

Instead, it was incumbent on the “Defendant Officers to

show that they had probable cause.” Id. at 770. Because the

facts as alleged in the complaint gave “no indication that

exigent circumstances existed in this case,” id., we reversed

the district court’s dismissal of the complaint and remanded

for further proceedings.

We believe that the statement in Jacobs must be placed in the

procedural context in which it arises, namely, a motion to

dismiss. For pleading purposes, a plaintiff need not anticipate,

and eliminate, every possible exception to the warrant re-

quirement. The same rule does not apply, however, when,

after a trial on the merits, the defendants have come forward

with evidence that they were in hot pursuit of a violent offender.

In Llaguno, the court found the entire probable-cause in-

struction inadequate. See Llaguno, 763 F.2d at 1568-69. The

court then “add[ed] that, on retrial, the instructions should

emphasize the importance that the Fourth Amendment has

been interpreted to place on having a magistrate make the

judgment of probable cause. The burden of proof should be

placed on the police to establish the existence of an emergency

that prevented them from obtaining a warrant.” Id. at 1569.

Llaguno cited no authority for this proposition, and, moreover,

that decision predates our holding in Valance, which clearly

addresses the issue of burden of proof.

No. 10-2170 15

against instructing juries about burden shifting models

in employment cases.” Appellant’s Br. 17. However,

after reviewing the instruction on burden of proof,

see supra at 6, we have no concerns regarding jury con-

fusion. The instruction did not take the jury, in

detail, through the burden-shifting mechanism set forth

in Valance; there was no mention of the burden shifting,

nor did the instruction require the jury to distinguish

burden of proof from burden of production. Because

the officers had come forward with evidence of exigent

circumstances, the only question posed to the jury was

whether Ms. Bogan had met her ultimate burden of

showing that the police did not reasonably believe that

Pearson would be found in Ms. Bogan’s apartment. The

district court’s instruction on burden of proof correctly

and clearly stated the law, and, consequently, we find

no error on this basis.

B. Evidentiary Rulings

As we noted earlier, at trial Officer Breen was allowed

to answer the following question posed by counsel: “At

the time that you’re moving through Nicole Evans’ apart-

ment, did you believe Antonio Pearson was moving to

the rear of the building?” R.123 at 196. Ms. Bogan main-

tains that this question elicited Officer Breen’s subjec-

tive beliefs and that those beliefs were irrelevant to

the issue before the jury—whether the officers had con-

ducted an illegal search. We review a district court’s

evidentiary rulings for an abuse of discretion. See, e.g.,

United States v. Owens, 424 F.3d 649, 653 (7th Cir. 2005).

16 No. 10-2170

The exigent circumstances doctrine recognizes that

there may be situations in which law enforcement

officials may be presented with “ ‘a compelling need’ ” to

conduct a search, but have “ ‘no time to secure a war-

rant.’ ” United States v. Dowell, 724 F.2d 599, 602 (7th Cir.

1984) (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)).

The doctrine has been applied to the escape of a suspect

and also to situations that pose a danger to the officers

or to others. See id. (citing Warden v. Hayden, 387 U.S. 294,

298-300 (1967)). “[A] police officer’s subjective belief

that exigent circumstances exist is insufficient” to justify

a warrantless search. United States v. Richardson, 208 F.3d

626, 629 (7th Cir. 2000). Instead, “[w]hen reviewing

a warrantless search to determine if exigent circumstances

existed, this Court conducts an objective review”; we

ask whether “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) (quoting United States v.

Saadeh, 61 F.3d 510, 516 (7th Cir. 1995)). We do not make

this determination on “the facts as an omniscient

observer would perceive them,” but 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.” Mahoney v. Kesery,

976 F.2d 1054, 1057 (7th Cir. 1992) (emphasis in original).

When placed against this background, the offending

question and answer here did not call for the officer’s

subjective assessment of the reasonableness of his ac-

tions. Instead, it was one of a series of questions designed

to explain his progress through Evans’s apartment—what

No. 10-2170 17

deductions he had made from the information he knew.

Consequently, this information was helpful to the jury

in assessing whether the officer’s actions were objectively

reasonable under the circumstances presented.

C. Judgment as a Matter of Law

Ms. Bogan also seeks review of the district court’s de-

nial of her motion for judgment as a matter of law. We

review a denial of a motion for judgment as a matter of

law de novo, “ ‘examining the record as a whole to de-

termine whether the evidence presented, combined with

all reasonable inferences permissibly drawn therefrom,

was sufficient to support the jury’s verdict.’ ” Walker v.

Bd. of Regents of the Univ. of Wis. Sys., 410 F.3d 387, 393

(7th Cir. 2005) (quoting Millbrook v. IBP, Inc., 280 F.3d

1169, 1173 (7th Cir. 2002)). In undertaking this inquiry, we

must remember that “ ‘[c]redibility determinations, the

weighing of the evidence, and the drawing of legitimate

inferences from the facts’ ” are within the province of the

jury. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

150-51 (2000) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986)). We shall reverse the verdict only

if, on the basis of the admissible evidence, no rational

jury could have found for the prevailing party. Walker,

410 F.3d at 393.

Ms. Bogan maintains that the officers’ testimony was

utterly unbelievable. Indeed, during trial, Ms. Bogan’s

counsel went to great lengths to make this point. Specifi-

cally, counsel brought out weaknesses in the officers’

18 No. 10-2170

testimony with respect to what they observed,5 the infor-

mation in their possession 6 and the actions that they took.7

Despite counsel’s efforts, the jury heard evidence

that entitled it to believe the officers’ version of events.

Officer Langley testified that, after he made eye contact

with Pearson, Pearson ran out of the bedroom toward

the rear of the apartment. While searching Evans’s apart-

ment for Pearson, the officers received a flash message

that a black male was on the rear porch. Moving toward

the back of the apartment, the officers proceeded

through a doorway in the kitchen to a landing area or

short hall with a stairwell to the right and a door im-

mediately in front of them. Officer Breen testified

that, having heard sirens, he believed that officers had

surrounded the building and, therefore, that Pearson

could not have escaped down the stairs. Instead, the

officers believed that, given the flash message they

had received, Pearson had fled through the door onto

the back porch. The officers testified that they did

not recall the light in the hallway, nor did they observe

5

See R.123 at 182-84 (eliciting that Officer Breen did not

recall seeing a door in the kitchen or a light in the hallway).

6

See R.123 at 178 (questioning Officer Breen about whether

they had heard any doors slamming or footsteps to guide

their search); id. at 235 (eliciting from Officer Langley that the

officers had not received a flash message that “male black

was outside the second floor”).

7

See R.123 at 185 (questioning whether Officer Breen had

considered whether Pearson had escaped down the stairs).

No. 10-2170 19

anything on Ms. Bogan’s apartment door to suggest that

the door led to another apartment, as opposed to the

mudroom or porch. This testimony provided a suf-

ficient basis from which the jury could conclude that

the officers reasonably believed that a suspect was

behind the door of what turned out to be Ms. Bogan’s

apartment. Consequently, we shall not disturb the jury’s

verdict.

Conclusion

For the reasons set forth above, we affirm the judg-

ment of the district court.

A FFIRMED

7-6-11