Linda Florek v. Village of Mundelei

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3696

L INDA F LOREK,

Plaintiff-Appellant,

v.

V ILLAGE OF M UNDELEIN , ILLINOIS, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 cv 6402—Maria G. Valdez, Magistrate Judge.

A RGUED JUNE 1, 2011—D ECIDED A UGUST 16, 2011

Before F LAUM and S YKES, Circuit Judges, and C ONLEY,

District Judge. Œ

F LAUM, Circuit Judge. When police searched her apart-

ment and placed her under arrest during a drug raid,

Linda Florek suffered a heart attack. She subsequently

Œ

Hon. William M. Conley, Chief Judge of the Western District

of Wisconsin, sitting by designation.

2 No. 10-3696

filed suit in federal court, naming as defendants the

Village of Mundelein and several of its police officers.

Donovan Hansen is the only such officer who remains

in the case on appeal. Florek contends that police unrea-

sonably seized her within the meaning of the Fourth

Amendment by denying a request she made for baby

aspirin and refusing to call an ambulance for her. She

also maintains that police violated the Fourth Amend-

ment’s proscription against unreasonable searches by

not giving her sufficient time to answer the door when

they knocked and announced their presence prior to

entering her apartment. (After waiting 15 seconds, police

used a battering ram to gain entry.) On appeal, Florek

contests the summary judgment ruling that eliminated

one of her claims, the directed verdict ruling that elimi-

nated the Village from the case, and the in limine ruling

that barred one of her experts. We affirm.

I. Background

In the fall of 2004, Village of Mundelein police offi-

cers using a confidential informant made two controlled

buys of marijuana at or in front of an apartment located

at 543 North Lake Street, in Mundelein. The apart-

ment was the residence of Linda Florek. Her son resided

there, too, and the person dealing drugs appears to

have been one of the son’s friends. Based on the con-

trolled buys, police obtained a search warrant for the

apartment. In the late evening hours of December 7, 2004,

several officers, led by then-Sergeant Donovan Hansen,

set out to execute the warrant.

No. 10-3696 3

That night, Florek arrived home from work shortly

after 10:00 P.M . and settled in for the evening. She

changed into a T-shirt, retired to the living room, and

lit a marijuana cigarette. The last component of her eve-

ning’s activities was unfortunately timed, as illegality

literally lingered in the air when police executed their

search at 10:22 P.M . According to the defendants, the

search commenced when one of the officers knocked on

the door to Florek’s apartment and announced their

presence, stating, “Police department, search warrant.”

The officers then waited approximately 15 seconds

before breaching the door with a battering ram. Florek

disputes the contention that officers announced their

presence; all she heard were at least four impacts on

her door before officers entered the premises.

As officers entered the apartment, Florek was standing

in the middle of the living room. She was ordered to the

ground and handcuffed. The apartment was redolent

of marijuana and, when asked about the odor, Florek

admitted that she threw a pouch of the substance

behind the couch as the officers had arrived. She ex-

plained that a physician had previously advised her

that she should smoke marijuana to reduce her blood

pressure. Regardless of the statement’s truth value, it

only bolstered the probable cause police had to arrest

her. See also Russell v. Harms, 397 F.3d 458, 466 (7th Cir.

2005) (distinguishing Payton v. New York, 445 U.S. 573

(1980), and holding that police executing a lawful search

warrant may arrest a person inside the home, so long as

the arrest is founded on probable cause). During the

search, which lasted over an hour, Florek remained

4 No. 10-3696

handcuffed and was not allowed to change clothing.

Florek’s son was similarly restrained and brought into

the living room. The son was admonished by his mother

for inviting law enforcement attention by associating

with a drug dealer.

Below (as on appeal), the chief dispute between the

parties centered around whether police officers were

unreasonable in responding to Florek’s medical needs.

Everyone agrees that early on during the execution of

the search warrant Florek asked if she could take some

baby aspirin. She made the request because roughly

two years earlier she had suffered a heart attack. The

paramedics who responded at that time had (among

other things) given her four baby aspirins. According to

Florek, the request for baby aspirin was denied outright.

She then told officers that she wanted an ambulance

because she was experiencing chest pains and having

a heart attack. In response, she was told that an am-

bulance would be called if she still needed one after

arriving at the police station.

The defendants tell it differently. According to Hansen,

Florek did indeed ask for baby aspirin. He denied

the request, following the Village police department’s

general orders which require physicians to administer

medication. The relevant order also direct officers to

summon paramedics in the event of an emergency.

Hansen says he complied with the order, telling Florek

in response to her request for aspirin that he would call

for paramedics if she needed medical assistance. At

that point, Florek responded, “This is bullshit,” but did

No. 10-3696 5

not request an ambulance or let officers know she was

having chest pains. Hansen also says that Florek did not

appear to be under any more distress than would

have been expected under the circumstances. And al-

though she complained of shortness of breath at one

point, the problem was resolved when she com-

plied with Hansen’s admonition that she slow down

her breathing.

The search was completed shortly after 11:30 P.M . At

around that time, Florek was allowed to get dressed,

and she and her son were transported to the Village’s

police station. The transport vehicle was a Chevy

cargo van equipped with interior partitions to separate

prisoners. While being placed in the van, Florek says

she pleaded, “Please don’t put me in that cage. I am

having a heart attack. I am claustrophobic.” The defen-

dants concede only that Florek protested the officers’

choice of vehicle, telling her that she would be trans-

ported in the vehicle despite her displeasure. The defen-

dants say that it was only after being placed in the van

that Florek informed officers of her chest pains. One of

the police officers, who was also a paramedic, spoke

with Florek while she was in the van. The officer

relayed what he learned to Hansen, the vehicle’s driver.

Hansen immediately radioed to have an ambulance

meet them at the station. The rendezvous occurred

within minutes.

The night’s conclusion is subject to no real dispute.

The paramedics treated Florek. Then, after admin-

istering baby aspirin and nitroglycerine and running

6 No. 10-3696

an intravenous line, the paramedics took her to the hos-

pital. Hansen learned shortly thereafter that Florek had

suffered a heart attack. He dispatched two officers to

the hospital to complete Florek’s processing, which con-

sisted of fingerprinting and the posting of a recognizance

bond. (Hansen directed the officers to consult with

Florek’s treating physician to learn if there was a

medical reason not to finish the processing.) Florek was

charged with possessing less than 2.5 grams of mari-

juana. She received supervision and paid a fine.

In November 2005, Florek filed suit in federal court.

The case was referred to a magistrate judge for all pur-

poses. See 28 U.S.C. § 636(c). The Village, Hansen, and

several police officers were named as defendants, but

Hansen is the only officer who remains. Just as the appeal

has brought into focus which parties are critical in the case,

it has winnowed the once-numerous claims. The ones

that matter for our purposes are Florek’s claims that

(1) Hansen and the Village unreasonably seized her

by denying her request for baby aspirin; (2) Hansen

unreasonably seized her by refusing to call an ambu-

lance when she first complained of chest pains; and

(3) Hansen effected an unreasonable search when the

officers he led failed properly to knock and announce

their presence and did not wait a reasonable time before

entering the apartment.

Hansen and the Village moved for summary judgment.

The magistrate judge denied summary judgment on

Florek’s claim that Hansen unreasonably searched her

apartment because of his team’s alleged failure to properly

No. 10-3696 7

knock and announce its presence. The magistrate judge

noted that there were simply disputed facts about

whether police knocked, announced, and then waited a

reasonable time before entering. As to Florek’s claims

that the defendants unreasonably seized her by not re-

sponding reasonably to her medical needs, the magistrate

judge considered the claims separately. On the aspirin-

based claim, the magistrate judge granted summary

judgment on qualified immunity grounds, reasoning

that there was no clearly established right to over-the-

counter drugs during an arrest. Granting judgment to

the Village on that basis was not appropriate, see Owen

v. City of Independence, Missouri, 445 U.S. 622, 638 (1980)

(holding that a “municipality may not assert the good

faith of its officers or agents as a defense to liability

under § 1983”), but Florek has not raised the error. (And

we shall see that the error was harmless, because there

was no constitutional violation.) In any event, the magis-

trate judge denied summary judgment on the ambulance-

based claim. That claim proceeded to trial, along with

the knock-and-announce claim.

After the close of Florek’s case, the magistrate judge

granted the Village’s motion for a directed verdict, rea-

soning that Florek had not offered evidence sufficient

to impute liability to the Village under Monell v. Dep’t

of Soc. Servs. of the City of New York, 436 U.S. 658 (1978).

The jury considered only the two claims against Hansen;

brief deliberations produced a verdict in Hansen’s fa-

vor. Florek appeals.

8 No. 10-3696

II. Discussion

On appeal, Florek takes no issue with the jury’s verdict

on the ambulance-based unreasonable seizure claim,

but does challenge the magistrate judge’s grant of sum-

mary judgment on the aspirin-based unreasonable sei-

zure claim. She also maintains that the directed verdict

in favor of the Village was improper, as was a decision

by the magistrate judge to bar an expert witness’s testi-

mony on the knock-and-announce claim. We take up,

and find wanting, each argument in turn.

A. Unreasonable Inattention to Medical Needs

The Fourth Amendment to the United States Constitu-

tion provides: “The right of the people to be secure in

their persons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated . . . .”

U.S. C ONST. amend. IV. We have held that an officer

violates the prohibition on unreasonable seizures when,

in the course of making an otherwise lawful arrest, he

does not respond reasonably to an arrestee’s medical

needs. Sides v. City of Champaign, 496 F.3d 820, 828 (7th

Cir. 2007) (citing Graham v. Connor, 490 U.S. 386, 394-95

(1989), and holding that the Fourth Amendment’s ban

on unreasonable seizures applies to claims of unrea-

sonable inattention to medical needs at the time of ar-

rest). Not every constitutional violation will furnish a

plaintiff with a basis for recovery, however. Qualified

immunity will shield an officer from money damages

unless a plaintiff establishes that the officer violated a

right that was clearly established. Pearson v. Callahan, 555

No. 10-3696 9

U.S. 223, 231 (2009). And because “[l]evel of generality

is destiny” in law, see Thomas More Law Center v. Obama, ___

F.3d ___, 2011 WL 2556039, at *27 (6th Cir. June 29,

2011) (Sutton, J., concurring), it bears emphasizing

that courts should not decide that a right is clearly estab-

lished at a high level of abstraction: we look to “whether

the violative nature of particular conduct is clearly estab-

lished.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011)

(emphasis added).

In this case, the magistrate judge determined that the

defendants enjoy qualified immunity with respect to

Hansen’s denial of Florek’s request for baby aspirin.

We review that determination de novo. Hill v. Cop-

pleson, 627 F.3d 601, 605 (7th Cir. 2010). The analysis

comprises two questions (Pearson teaches that we may

take them up in any order; formerly we had to answer

them in sequence. See Saucier v. Katz, 533 U.S. 194, 201

(2001)). First, we ask whether the plaintiff’s allegations

make out a deprivation of a constitutional right.

Second, we ask whether that right was clearly estab-

lished at the time of the defendant’s alleged misconduct.

Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011). If

the answer to either question is no, the officer is

immune from suit. Here, the magistrate judge answered

no to the second question. We answer no to the first

question and hold that, as litigated by the parties, there

was no genuine issue of material fact on the claim

that police acted unreasonably by denying aspirin to

Florek.

We say “as litigated by the parties,” because everyone

conceived of the case as having presented two discrete

10 No. 10-3696

unreasonable seizure claims: (1) whether police acted

unreasonably by denying her request for baby aspirin,

an issue which dropped out of the case at summary

judgment; and (2) whether police acted unreasonably by

refusing to call an ambulance, an issue which went to

the jury and was resolved in Hansen’s favor. These con-

tentions ought to have been presented to the jury as a

single claim—namely, whether police violated Florek’s

constitutional rights by failing to respond reasonably to

her medical needs. After all, a claim is “the aggregate

of operative facts which give rise to a right enforceable

in the courts.” Original Ballet Russe v. Ballet Theater, 133

F.2d 187, 189 (2d Cir. 1943) (Swan, J.); see also Liberty

Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 743 & n.4 (1976)

(intimating that a claim is a single legal theory “applied

to only one set of facts” but not “attempt[ing] any defini-

tive resolution of the meaning of what constitutes a

claim for relief within the meaning of the [Federal]

Rules”); Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 321 (1927)

(“A cause of action does not consist of facts, but of the

unlawful violation of a right which the facts show.”). And

because the reasonableness of a seizure depends on the

totality of the circumstances, see Tennessee v. Garner, 471

U.S. 1, 8-9 (1985); Segura v. United States, 468 U.S. 796,

806 (1984), determining whether police responded rea-

sonably to an arrestee’s medical needs demands the

same inquiry. In that vein, Williams v. Rodriguez, 509

F.3d 392, 403 (7th Cir. 2007), distilled non-exclusive

factors that courts might look to in evaluating whether

a given police response was reasonable. Reasonableness

in light of the totality of the circumstances remains

No. 10-3696 11

the constitutional touchstone in this realm. See Lopez v.

City of Chicago, 464 F.3d 711, 718 (7th Cir. 2006).

If one concludes, as we have little difficulty doing

below, that police would have responded reasonably to

Florek’s medical needs by calling paramedics (the basis

of one “claim”)—regardless of whether she was allowed

to take aspirin (the basis of another “claim”)—it carries

the tacit acknowledgment that the “aggregate of opera-

tive facts” presented one claim all along. Cf. also Gen.

Acquisition, Inc. v. GenCorp., 23 F.3d 1022, 1029 (6th Cir.

1994) (discussing Federal Rule of Civil Procedure 54(b)).

Law enforcement addressing an arrestee’s medical needs

will either procure treatment, provide treatment, or

both. The circumstances should be considered together.

However, because the parties and magistrate judge de-

linked the issue of the treatment that Florek requested

from the steps that officers took in response to her

medical needs (and even on appeal Florek does not

claim that this was error), we will do the same.1

1

The implication of the discussion above, however, is that

summary judgment should have been denied on a single

unreasonable inattention to medical needs claim, rather than

just denied with respect to an ambulance-based claim. Had

summary judgment been denied, Hansen’s refusal to pro-

vide aspirin would have been but one fact for the jury to

consider. How much and what type of evidence to present

on the denial-of-aspirin issue was a matter that would have

been within the sound discretion of the trial court. And in

the event the existence of a critical fact would have been

(continued...)

12 No. 10-3696

Therefore, we ask only whether there was a genuine

issue of material fact on Florek’s unreasonable seizure

claim, assuming that officers called paramedics after

having been alerted to her chest pains.

With that caveat, summary judgment was proper in

this case. The result is dictated by a straightforward

application of the factors we highlighted in Williams.

There, we identified four factors that courts might look

to in evaluating whether an officer’s response to an

arrestee’s medical needs was reasonable. The factors are

(1) “notice of the arrestee’s medical need . . . whether

by word . . . or through observation of the arrestee’s

physical symptoms”; (2) “the seriousness of the medical

need”; (3) “the scope of the requested treatment,” which

is balanced against the seriousness of the medical need;

and (4) police interests, a factor which “is wide-ranging

in scope and can include administrative, penological,

and investigatory concerns.” Williams, 509 F.3d at 403.

One should not fixate on factors, however: the intui-

tive, organizing principal is that police must do more to

satisfy the reasonableness inquiry when the medical

condition they confront is apparent and serious and

1

(...continued)

dispositive in the case—such as a timely call to paramedics—

a special verdict form could have been used to ensure the

proper outcome. On these facts, however, Florek should not

bemoan her loss at summary judgment. As explained below,

if police did promptly summon paramedics, they acted rea-

sonably in this case.

No. 10-3696 13

the interests of law enforcement in delaying treatment

are low. That is not the situation here. As to the first

factor, officers had knowledge of the request for baby

aspirin, but did not know that Florek was experiencing

chest pains, and her outward appearance did not put

officers on notice of her medical condition. (Again, the

way the parties presented the issue leads us to hold to

one side Florek’s contention that she did tell officers

she was experiencing chest pains and requested an am-

bulance.) Although her breathing was rapid at one

point, Hansen’s advice to take slower breaths appears

to have been effective. Moreover, Florek was conversing

at the scene, admonishing her son for his association

with a drug dealer. In short, law enforcement were not

on notice of a serious medical condition. The request

for baby aspirin was minor in scope as treatments go,

but the weight of this factor is substantially reduced by

the fact that the medical need did not appear to be

great. Our case law does not require police officers to

alleviate all discomfort or distress associated with ar-

rest. Sides, 496 F.3d at 828 (“[T]he Constitution does

not require arrests to be conducted in comfort.”). As to

the fourth factor we identified in Williams, police had

a valid interest in denying the request for aspirin. Al-

though the police appear to have quickly brought the

arrest scene under control, they were executing a

search warrant for illegal narcotics, and they had no way

of knowing if a particular medication was in fact what

it purported to be. (The same conclusion might not

apply to an arrestee’s request to take prescription med-

ication in accordance with the instructions on the bottle,

14 No. 10-3696

as the containers for prescriptions describe the proper

appearance of the pill and the symptoms that trigger

their use.)

Finally, and although we did not explicitly say as

much in Williams or in Sides, the Fourth Amendment

reasonableness inquiry necessarily takes into account

the sufficiency of the steps that officers did take. “Just

as the Fourth Amendment does not require a police

officer to use the least intrusive method of arrest,

neither does it require an officer to provide what

hindsight reveals to be the most effective medical care

for an arrested suspect.” Tatum v. City and County of

San Francisco, 441 F.3d 1090, 1098 (9th Cir. 2006) (citations

omitted); see also Jackson v. Kotter, 541 F.3d 688, 697 (7th

Cir. 2008) (the Constitution is not a medical code re-

quiring officers to administer or allow specific treat-

ments); Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997)

(contrasting a reasonable response with a plaintiff’s

preferred response, in the context of an Eighth Amend-

ment claim). Here, we have assumed that an ambulance

was called promptly after officers were notified that

Florek was experiencing chest pains and wanted an

ambulance. That action will typically qualify as reason-

able. See Tatum, 441 F.3d at 1099 (police acted reasonably

when they promptly summoned necessary medical assis-

tance, even if they did not administer CPR); see also

Sallenger v. City of Springfield, Illinois, 630 F.3d 499, 504

(7th Cir. 2010) (police acted reasonably when they

promptly summoned necessary medical assistance and

administered CPR).

No. 10-3696 15

Florek points to no case where a court has held that

police acted unreasonably when they summoned emer-

gency medical personnel instead of supplying non-pre-

scription medication to an arrestee, nor has she pointed

to other authority that might help her in making the

argument. We located no helpful authority on her

behalf, and a straightforward application of our prece-

dent militates against her position. Thus, summary judg-

ment on the merits was appropriate as to Hansen, and

that means that judgment for the Village was proper as

well. Sallenger, 630 F.3d at 505 (Monell liability cannot be

imposed where there is no underlying constitutional

violation).

B. The Village’s Motion for Directed Verdict

We review de novo the magistrate judge’s decision to

grant the Village’s motion for a directed verdict—which

the Federal Rules of Civil Procedure refer to as judg-

ment as a matter of law. Freeman v. Madison Metro. Sch.

Dist., 231 F.3d 374, 379 (7th Cir. 2000); Fed. R. Civ. P. 50(a).

“To avoid a directed verdict, the plaintiff must do more

than argue that the jury might have disbelieved all of the

defendant’s witnesses. Rather, the plaintiff must offer

substantial affirmative evidence to support her argu-

ment.” Heft v. Moore, 351 F.3d 278, 284 (7th Cir. 2003).

At the close of Florek’s case, the magistrate judge

granted the Village’s motion for a directed verdict, rea-

soning that the aspirin issue was no longer part of the

litigation and that Florek had not presented evidence

linking a municipal policy or custom to any constitutional

16 No. 10-3696

violation. On appeal, Florek concedes that a directed

verdict was proper as to all but the claim related to

aspirin. Having determined above that summary

judgment was appropriate on the denial of aspirin

issue, there remains no possible grounds for error.

C. Rulings on Expert Testimony

Finally, Florek maintains that the magistrate judge

erred by barring expert testimony on whether police

acted unreasonably by waiting 15 seconds, after knocking

and announcing their presence, before ramming open

the door to her apartment. (She also contends that it

was error to bar expert testimony on the denial of

aspirin issue, but the issue was properly out of the case,

and so we need say no more.) The testimony in question

would have been offered by police expert Dennis

Waller. Waller would have testified that, given the late

hour at which the search was executed, “no rational,

experienced officer would/could reasonably expect a

response and voluntary compliance within fifteen sec-

onds” of knocking and announcing his presence. The

defendants’ motion in limine maintained that the

subject matter of Waller’s testimony was adequately

comprehensible by laypeople and therefore not

properly admissible as expert testimony. The magistrate

judge agreed.

We review de novo whether the magistrate judge

“applied the appropriate legal standard in making its

decision to admit or exclude expert testimony, and we

review for abuse of discretion the . . . choice of factors to

No. 10-3696 17

include within that framework and . . . ultimate conclu-

sions regarding the admissibility of expert testimony.”

Happel v. Walmart Stores, Inc., 602 F.3d 820, 824-25 (7th

Cir. 2010). Where the court below abuses its discretion

by keeping out evidence that ought to have been

admitted, a new trial will not be granted unless the omis-

sion of such evidence violated the party’s “substantial

rights.” Naeem v. McKesson Drug Co., 444 F.3d 593, 608-09

(7th Cir. 2006); Fed. R. Civ. P. 61 (“At every stage of the

proceeding, the court must disregard all errors and de-

fects that do not affect any party’s substantial rights.”).

In order for expert testimony to be admissible, it must

satisfy the Federal Rule of Evidence’s threshold require-

ment that “specialized knowledge . . . assist the trier of

fact . . . to determine a fact in issue.” Fed. R. Evid. 702.

Once the threshold showing is made, experts may

provide assistance on a very great deal: an opinion is

not objectionable merely because “it embraces an

ultimate issue to be decided by the trier of fact.” Fed. R.

Evid. 704(a). Thus, there would be no problem with

Waller’s ultimate determination that police acted unrea-

sonably. The question is whether the basis of that deter-

mination—how long it takes for people to respond to

law enforcement’s knock at the door—was beyond the

ken of the average layperson. See 4 Jack B. Weinstein &

Margaret A. Berger, W EINSTEIN ’S F EDERAL E VIDENCE

¶ 702.03[1], at 702-34 (Matthew Bender 2d ed. 2011).

Florek’s brief does not cite case law on when expert

testimony will help a jury determine whether police

conduct is reasonable. The case of Kopf v. Skyrm, 993 F.2d

374 (4th Cir. 1993), proves instructive. In Kopf, the Fourth

18 No. 10-3696

Circuit held that a district court abused its discretion in

excluding expert testimony about whether it was reason-

able for police to use a canine officer (and its canines) in

bringing a suspect to heel. The court noted that whether

force is excessive depends on the “objective reasonable-

ness” of the force used, a fact question. Yet, “any ‘objective’

test implies the existence of a standard of conduct, and,

where the standard is . . . defined by . . . the specific—

a reasonable officer—it is more likely that Rule 702’s line

between common and specialized knowledge has been

crossed.” Id. at 378. In the context of the case, which

related to when police officers will find it necessary to

use police dogs and certain specialized devices in

gaining control over a suspect, the court ruled that the

line had been crossed. However, the court noted that

expert testimony might not be helpful in other situations,

such as where police used their bare hands in making

an arrest, the “most primitive form” of force. Id. at 379.

In other words, expert testimony is more likely to

satisfy Federal Rule of Evidence 702’s requirement that

it “assist the trier of fact to understand the evidence

or determine a fact in issue” when something peculiar

about law enforcement (e.g., the tools they use or the

circumstances they face) informs the issues to be

decided by the finder of fact. See United States v. Shedlock,

62 F.3d 214, 219 (8th Cir. 1995). Of course, that does not

mean that expert testimony can war with the pertinent

legal standards at play. Cf. Whren v. United States, 517

U.S. 806, 815 (1996) (noting that certain police practices

“vary from place to place and from time to time” and

rejecting the view that constitutional protections are “so

variable”). And when the testimony is about a matter of

No. 10-3696 19

everyday experience, expert testimony is less likely to be

admissible. United States v. Hanna, 293 F.3d 1080, 1085-86

(9th Cir. 2002) (testimony of Secret Service agents on

whether a reasonable person in the defendant’s position

would foresee that communications would be perceived

as threatening the President was not beyond the under-

standing of the average layperson); Beck v. City of Pitts-

burgh, 89 F.3d 966, 975-76 (3d Cir. 1996).

Measuring Waller’s testimony against these standards,

there can be no doubt that the magistrate judge

properly exercised her discretion in barring Waller’s

testimony. The knock-and-announce rule about which

Waller would have opined is a factor to be considered

when evaluating the reasonableness of a search. See

Wilson v. Arkansas, 514 U.S. 927, 934 (1995). Informed

by principles of English common law, id. at 932-33, the

Court in Wilson held that the Fourth Amendment gen-

erally requires police, before forcibly entering someone’s

home, to seek voluntary compliance with a lawful war-

rant by knocking and announcing their presence, id. at

934. Despite the general rule, the Court noted that

law enforcement interests may militate in favor of dis-

pensing with it in certain circumstances. The Court high-

lighted concerns over destruction of evidence and

danger faced by police officers in particular, but other-

wise left it to lower courts to develop the law in this

realm. Id. at 936-37.2

2

Generally, we have refused to turn the knock-and-announce

rule “into a constitutional stop-watch where a fraction of a

(continued...)

20 No. 10-3696

Plainly, the concerns highlighted by the Court will

inform the determination about whether law enforce-

ment have waited a reasonable time before gaining

entry to a residence by force. It is self-evident that expert

testimony may be useful on those subjects. How long

does it take to dispose of drugs? What sorts of prob-

lems do law enforcement encounter the longer they wait

before entering a residence? These are questions whose

answers cannot be furnished by everyday experience.

Waller’s testimony, on the other hand, did not ap-

proach Rule 702 territory. It appears that Waller’s chief

contribution was going to be his belief that, given the

late hour, it would have been unreasonable to expect

voluntary compliance with a knock at the door in

15 seconds. Florek does not explain why expert testi-

mony on this subject would be useful to the jury, instead

seeming to contend that expert testimony is always

necessary where “constitutional freedoms and guarantees

are concerned” and police practices are at issue. That

position is untenable; everyday experience teaches

2

(...continued)

second assumes controlling significance.” United States v.

Espinoza, 256 F.3d 718, 722 (7th Cir. 2001). What is reasonable

must be determined “under the particular factual situation

presented.” Id.; see also United States v. Jones, 208 F.3d 603, 610

(7th Cir. 2000) (upholding district court’s determination that

5 to 13 seconds was reasonable where police had concerns

that a suspect was armed and also “a lengthy period of time

would give the defendant an opportunity to destroy the drug

evidence”).

No. 10-3696 21

people how long it takes to walk from room to room.

The magistrate judge did not abuse her discretion in

barring the testimony, nor did she do so by keeping

out Waller’s testimony that a reasonable police officer

would call an ambulance if confronted with an arrestee

known to be experiencing heart attack symptoms.

III. Conclusion

For the reasons set forth above, the judgment of the

district court is A FFIRMED.

8-16-11