Michael Seiser v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1985

MICHAEL SEISER,

Plaintiff-Appellant,

v.

CITY OF CHICAGO and DEBRA KIRBY,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 2353 — James F. Holderman, Judge.

ARGUED DECEMBER 13, 2013 — DECIDED AUGUST 12, 2014

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Chicago police officer Michael Seiser

was arrested and subjected to a breathalyzer examination after

several witnesses reported seeing him drinking from an

alcoholic beverage container while driving his personal vehicle.

After the breathalyzer detected no alcohol in his bloodstream,

he was cited for driving a motor vehicle with an open container

of alcohol in the passenger compartment. That charge was

dropped after testing of the contents of the container indicated

2 No. 13-1985

that it did not contain alcohol. Seiser filed suit against the City

of Chicago (the “City”) and the police deputy superintendent

who had ordered him to be processed criminally, alleging

various Fourth Amendment and state-law claims. R. 48; see

Seiser v. City of Chicago, No. 12 C 2353, 2013 WL 1809916 (N.D.

Ill. Apr. 29, 2013). The district court entered summary judg-

ment in favor of the defendants on all claims. Seiser appeals,

contending that probable cause did not support either the

order that he undergo a breathalyzer examination or the open-

container citation. We affirm.

I.

On the afternoon of March 29, 2011, Officer Seiser was

driving his private automobile between Tilden Career Commu-

nity Academy High School in Chicago’s Canaryville neighbor-

hood to the nearby intersection of 50th Street and Union

Avenue, where Seiser was assigned to stand post until 4:00

p.m. as part of the City’s Operation Safe Schools program.

Seiser was on duty and in uniform as a police officer.1

Seiser was making an effort to consume extra water as part

of a weight-loss program. Toward that end, he had a large

bottle of water with him in the car and in fact was drinking

from it while en route to his assigned post. In retrospect, his

choice of bottle was not the most prudent: the bottle was a

1.75-liter T.G.I. Friday’s Mudslide bottle which, when sold, had

1

Seiser’s work with the school safety program was secondary employ-

ment, but there is no dispute that he was nonetheless considered to be on

duty as a police officer while engaged in that work.

No. 13-1985 3

contained an alcoholic beverage and which still bore a label

that read, “The liquor is in it.”

Gail Glassford (a private employee of the Safe Schools

program), her mother Kathleen Glassford, and Roseann

Anderson all saw Seiser drinking from the bottle as he drove

by them in the 4800 block of South Union Avenue. All per-

ceived the bottle as one containing liquor based on the bottle’s

size, shape, and labeling.

Gary Anderson, a private school security guard and

Roseann’s brother, was stationed at the same intersection (50th

Street and Union Avenue) as Seiser was. Roseann called her

brother and asked him to obtain the license plate number from

Seiser’s car, which Seiser had just parked across the street from

where Gary was standing. As he was talking with Roseann,

Gary could see the driver of the car drinking from what looked

like a bottle of vodka. Gary subsequently walked across the

street, copied down the plate number, and was about to return

to his post when Seiser emerged from the car and confronted

him. Gary would later report that Seiser staggered as he exited

the vehicle and that his breath smelled of alcohol. As Gary

used his hand-held radio to summon his supervisor, Seiser got

back into his car and drove back to the high school.

At 2:18 p.m., Kathleen Glassford called 911 to report that

she had seen someone driving in the vicinity of 50 Street and

Union Avenue drinking vodka while driving; she described the

car and supplied its license plate number. When police checked

the plate number, they discovered the car was registered to

Seiser. Kathleen Glassford placed another call to the police at

4 No. 13-1985

2:29 p.m. to add that the driver of the car was a police officer

and to request that a police supervisor respond to her report.

Sergeant John Verta of the Chicago Police Department

(“CPD”) was dispatched to investigate the incident. He spoke

with both Gail Glassford and Roseann Anderson, who told him

they had seen a police officer driving while drinking from a

gallon-sized bottle of vodka. They also directed him to the

intersection several blocks away, where Seiser’s automobile

was once again parked.

As Verta approached Seiser’s vehicle from the passenger

side, he saw on the front passenger seat a large bottle with the

seal broken and with clear liquid inside. Although Verta could

not read the bottle’s red and white label, which was turned

toward the seat, he believed based on the size of the bottle and

what Glassford and Anderson had told him that it contained

alcohol. Verta summoned Seiser, who was standing not far

away, and asked him what was in the bottle. Seiser replied,

“What bottle?” When Verta indicated the bottle inside of the

car, Seiser—by his own account, which we credit—said that the

bottle did not contain alcohol. But when Verta asked him to

open the car and turn the bottle over to him, Seiser demurred

after ascertaining that Verta had neither a warrant nor an

signed affidavit from a complaining witness. “No, get a

warrant. I know my rights,” he told Verta. Verta reiterated his

request but again met with Seiser’s refusal. When Verta related

to Seiser what the witnesses had told him, Seiser offered to

accompany Verta back to the station and submit to a

breathalyzer examination in order to demonstrate that the

complaint was false. Verta contacted his watch commander,

No. 13-1985 5

Captain Robert Johnson, who instructed Verta to bring Seiser

into the station. Verta drove Seiser to the Ninth District station.

At this point, the Internal Affairs Division (“IAD”) of the

CPD became involved in the matter. After the call from Verta,

Johnson contacted IAD Lieutenant David Naleway to inform

him that a police officer had reportedly been drinking while on

duty. Naleway in turn dispatched two IAD officers—Sergeants

Matthew Price and Terrance Cochran—to the Ninth District

station. After Price was briefed on the allegations against

Seiser, he visited the scene of the incident and conducted his

own investigation. He spoke with Gail Glassford as well as

Gary and Roseann Anderson, all three of whom reiterated that

they had seen a uniformed police officer drinking from what

appeared to be bottle of alcohol while driving. Roseann

Anderson signed an affidavit to that effect. Price also examined

Seiser’s vehicle (which was still parked near the high school)

and saw the large bottle in the front seat. Price too thought that

the bottle was a liquor bottle, and he could see that it contained

a clear liquid. An evidence technician photographed the bottle

in situ.

Price reported back to Naleway and conveyed what the

witnesses had told him and what he had seen in Seiser’s car.

That information was communicated up the chain of command

to Deputy Superintendent Debra Kirby, who headed the CPD’s

Bureau of Professional Standards. Kirby’s assigned duties

included oversight of the IAD, among other divisions. Kirby

instructed Rivera to have Seiser processed criminally for DUI

(i.e., arrested) at the Ninth District, and to recover the bottle

from Seiser’s car. She also directed that the IAD conduct an

6 No. 13-1985

administrative investigation into the incident once the criminal

investigation was complete.

Once informed of Kirby’s orders, Johnson briefed officers

Brian Madsen and Andrew Kral and assigned them to proceed

with the criminal investigation and processing of Seiser. They

met Seiser at the Ninth District station and at 4:45 p.m. began

to process him. They administered field sobriety tests, which

Seiser passed. They then ordered him to submit to a breatha-

lyzer test, which the record indicates took place at 5:07 p.m.

(Although the defendants aver that Seiser submitted to the test

voluntarily, and it is agreed that Seiser had previously sug-

gested the breathalyzer to Verta, Seiser contends that he

withdrew his consent once he learned that he was being

arrested. In any case, he submitted to the breathalyzer.) The

test result indicated a blood-alcohol content of 0.000. An arrest

report was completed, and upon reviewing it, Captain Johnson

ordered that Seiser be released without a DUI charge. Ser-

geants Verta and Cochran decided that, in view of the open

liquor bottle in his vehicle, Seiser should be cited for an open-

container violation, and Madsen wrote the citation accordingly.

At that point in the process, the IAD administrative

investigation commenced. Sergeants Cochran and Price

solicited Seiser’s consent to search his vehicle and to retrieve

the bottle, but Seiser refused. The two sergeants then gave

Seiser a written order to allow the recovery of the bottle, and

Seiser complied with the order: he was driven back to his

vehicle, where he unlocked the car and handed over the bottle.

The bottle and its contents were inventoried, and the latter

were sent to the Illinois State Police laboratory for analysis.

No. 13-1985 7

On April 29, 2011, the laboratory issued a report indicating

that the contents of the bottle contained no alcohol. At a court

hearing on the open-container charge on May 18, Madsen

advised the Assistant State’s Attorney of the negative labora-

tory result. The court subsequently dismissed the charge.

Roughly one year later, Seiser filed the instant suit against

Kirby and the City, asserting claims under both section 1983

and state law. Among the claims were the two at issue in this

appeal: a Fourth Amendment claim against Kirby founded on

the contention that the involuntary breathalyzer amounted to

an illegal search, as there was no probable cause to believe that

it would yield evidence of a crime and no warrant authorizing

the search; and a state-law malicious prosecution claim against

the City premised on the contention that there was no probable

cause to believe Seiser had violated the open-container law.

The district court entered summary judgment in favor of

the defendants on both of these claims. R. 48. The court rejected

the wrongful search claim, reasoning that on the facts pre-

sented, the police had probable cause to arrest Seiser for

driving under the influence and therefore grounds to adminis-

ter the breathalyzer test. The court pointed out that three

witnesses had told Sergeant Price they had seen Seiser drink-

ing from what appeared to be a bottle of alcohol while driving,

and Roseann Anderson had signed an affidavit to that effect.

Gary Anderson had also reported smelling alcohol on Seiser’s

breath. Verta had found Seiser to be uncooperative when asked

about the bottle, and Seiser had refused to turn the bottle over

to Verta when asked. This evidence, in the district court’s view

supported a reasonable belief that Seiser had operated a motor

vehicle while under the influence of alcohol, notwithstanding

8 No. 13-1985

certain discrepancies in the witness accounts and the fact that

Verta did not observe any signs of intoxication in Seiser’s

appearance and behavior. R. 48 at 8–9. Moreover, it was

reasonable for the police to administer the breathalyzer

without first obtaining a warrant, in the court’s view, given the

speed at which alcohol leaves the bloodstream. R. 48 at 9.

The court likewise rejected the malicious prosecution claim,

reasoning that the open-container charge was supported by

probable cause. The bottle retrieved from Seiser’s vehicle bore

a label indicating that it contained liquor, and until the contents

of the bottle were analyzed by a laboratory, the police had no

way of knowing that the bottle did not, in fact, contain alcohol.

R. 48 at 12. At that point, the charge against Seiser was dis-

missed. But until the testing proved negative, the City was

justified in pursuing the charge. R. 48 at 12–13.

II.

We review the district court’s summary judgment decision

de novo. E.g., Townsend v. Cooper, No. 12-3620, — F.3d —, 2014

WL 3511731, at *5 (7th Cir. Jul. 17, 2014). We construe the

evidence in the light most favorable to Seiser, granting him the

benefit of all reasonable inferences and resolving all credibility

disputes in his favor. See id. In this case, the pertinent facts are

largely undisputed. The dispute, instead, focuses on whether

the police (and Kirby in particular) had reasonable grounds to

believe that Seiser had been driving while intoxicated and thus

to subject him to the breathalyzer test; whether exigent

circumstances justified the administration of that test without

a warrant; and whether the City had probable cause to charge

Seiser with an open-container violation.

No. 13-1985 9

A. Probable cause to administer the breathalyzer test

A breathalyzer examination constitutes a search implicating

the Fourth Amendment. See Maryland v. King, 133 S. Ct. 1958,

1969 (2013) (citing Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S.

602, 616, 109 S. Ct. 1402, 1413 (1989)). As such, it must be

supported by probable cause to believe that the test will yield

evidence of a crime. See Illinois v. Gates, 462 U.S. 213, 238, 103

S. Ct. 2317, 2332 (1983); United States v. Sutton, 742 F.3d 770, 773

(7th Cir. 2014); Herzog v. Vill. of Winnetka, Ill., 309 F.3d 1041,

1044 (7th Cir. 2002). If the Chicago police had probable cause

to believe that Seiser had been driving while under the

influence of alcohol, then they had a substantial basis on which

to believe that the breathalyzer test would yield evidence of

that offense. See Schmerber v. California, 384 U.S. 757, 770, 86

S. Ct. 1826, 1835 (1966). A police officer has probable cause to

believe that an individual has committed an offense (and to

make an arrest) if the facts and circumstances known to him

would warrant a reasonable person believing that the individ-

ual has committed or is committing a crime. E.g., Williamson v.

Curran, 714 F.3d 432, 441 (7th Cir. 2013). The belief need not

rise to the level of certainty. Abbott v. Sangamon Cnty., Ill., 705

F.3d 706, 714 (7th Cir. 2013).

[A]lthough it requires something more than a hunch,

probable cause does not require that it was more likely

than not that the arrestee was engaged in criminal

activity—the officer’s belief that the arrestee was

committing a crime need only be reasonable.

Id. (citing, inter alia, Henry v. United States, 361 U.S. 98, 102, 80

S. Ct. 168, 171 (1959)). Where, as here, the officers involved in

10 No. 13-1985

an investigation were in communication with one another, we

may, in assessing probable cause, attribute to one officer the

facts known to his fellow officers. E.g., United States v. Lyons,

733 F.3d 777, 782 n.1 (7th Cir. 2013), cert. denied, 134 S. Ct. 1779

(2014); United States v. Sawyer, 224 F.3d 675, 680 (7th Cir. 2000).

This means that we may invest Kirby with knowledge of the

facts known to her subordinate officers.

The general rule is that when the police have information

from a reasonably credible witness that a person has commit-

ted a criminal act, they may rely on that witness’s account,

even when the suspect himself denies wrongdoing. E.g.,

Williamson, 714 F.3d at 441. The police need not exhaust all

available avenues of investigation, including those that might

potentially exculpate the suspect. Id.

In this case, Kirby had reports from three credible witnesses

indicating that Seiser had been drinking while driving his

personal vehicle. Gail Glassford and Roseann Anderson both

told Verta, and then they along with Gary Anderson told Price,

that they had seen Seiser drinking from a large liquor bottle,

and Gary Anderson additionally informed Price of the confron-

tation he had with Seiser while copying Seiser’s license plate

number, during which he detected the odor of alcohol on

Seiser’s breath. In addition, both Verta and Price had inspected

Seiser’s vehicle and had seen the bottle in the front seat of the

car; to both it appeared to be an alcoholic beverage container.

Both also saw that it contained a clear liquid inside; and Verta

could see that the seal on the bottle had been broken. And

when Verta had asked Seiser about the bottle, Seiser had been

No. 13-1985 11

evasive, first replying “What bottle?”and then twice refusing

Verta’s requests to inspect it.

We note in this regard that Illinois courts have repeatedly

held that a police officer may reasonably infer from the

discovery of a beer or liquor container—even an empty

container—in or near an individual’s car that the bottle had

contained alcohol and had been open while the defendant was

driving. See People v. Miller, 791 N.E.2d 1145, 1148 (Ill. App. Ct.

2003), abrogated on other grounds by People v. Van Schoyck, 904

N.E.2d 29, 32–33 (Ill. 2009); People v. Gray, 420 N.E.2d 856, 859

(Ill. App. Ct. 1981); People v. Zeller, 367 N.E.2d 488, 491 (Ill.

App. Ct. 1977); Stanford v. Glowacki, No. 12 C 7502, 2013 WL

6447947, at *2 (N.D. Ill. Dec. 6, 2013); Guidry v. Boyd, No. 06 C

1600, 2007 WL 2317174, at *9 (N.D. Ill. Jul. 17, 2007); see also

Branch v. Gorman, 742 F.3d 1069, 1073 (8th Cir. 2014) (“Courts

routinely find probable cause under open container laws when

police officers observe empty bottles in vehicles.”) (collecting

cases). It was no less reasonable in this case for the investigat-

ing officers (and Kirby) to infer that the clear liquid in the

liquor bottle observed in Seiser’s car was alcohol as opposed to

water. And given the multiple witnesses who saw Seiser

drinking from the bottle as he drove by them, it was equally

reasonable to believe that he had been drinking alcohol while

driving.

As Seiser points out, there were certain inconsistencies or

inaccuracies in the witness accounts which would have been

apparent to the officers at the time. The bottle wasn’t labeled

“vodka,” as Gail Glassford had thought. Nor was it a gallon-

sized container, as multiple witnesses, including Verta and

12 No. 13-1985

Price, had described it. (The bottle was roughly half that size.)

But these are at worst minor discrepancies. There is no ques-

tion that the bottle was, in fact, a liquor bottle, that it was

labeled as such, and that it was relatively large. Verta and Price

had both confirmed the presence of the bottle in Seiser’s car.2

Nor did the negative results of the field sobriety tests that

Kral and Madsen administered negate the possibility that

Seiser had been drinking. Of course, at the point that those

tests were administered, a substantial amount of time had

passed since Seiser had been seen driving while drinking from

the liquor bottle. Recall that Kathleen Glassford made her first

call to the police reporting the incident at 2:18 p.m.; Madsen

and Kral did not begin to process Seiser criminally until 4:45

p.m., nearly two and one-half hours later. So it would be fair to

assume that if Seiser had been drinking alcohol, his degree of

intoxication would have decreased and his ability to pass such

tests would have increased during that time. As we noted in

Kraushaar v. Flanigan, 45 F.3d 1040, 1052 (7th Cir. 1995), the

passage of time coupled with the prospect of arrest will

2

One of the inconsistencies that Seiser has highlighted concerns the speed

at which he had reportedly been driving when Glassford and Roseann

Anderson saw him drinking from the liquor bottle. Although it does appear

in retrospect that they have made inconsistent statements as to whether

Seiser was driving above or below the speed limit, the record does not

indicate that they made inconsistent statements to the police officers who

investigated the incident, or that the officers otherwise would have been

aware of any such inconsistency. In any case, the speed at which Seiser was

driving is a point collateral to whether or not he was drinking alcohol while

driving.

No. 13-1985 13

naturally have a sobering effect on a person who has been

drinking.

More to the point, the fact that an individual is able to

complete one or more field sobriety tests successfully (the

parties devote no attention in their briefs to the types and

significance of the particular tests administered to Seiser) does

not negate probable cause when other circumstances give rise

to a reasonable belief that the individual is intoxicated. See, e.g.,

State v. Bell, 429 S.W.3d 524, 531–36 (Tenn. 2014) (so holding

after surveying case law from other jurisdictions on this point).

Each case necessarily must be assessed on its own facts, given

that probable cause turns on the totality of the circumstances

confronting the officer. E.g., Gibbs v. Lomas, No. 13-3121, — F.3d

—, 2014 WL 2736066, at *5–*6 (7th Cir. June 17, 2014). Given the

other circumstances we have highlighted, the fact that Seiser

was able to pass the field sobriety tests administered to him did

not foreclose probable cause to believe that he had been

driving while intoxicated some two and one-half hours earlier

(and thus to believe that a breathalyzer test would yield proof

of his intoxication).

Similarly, the fact that none of the officers who had inter-

acted with Seiser after the incident—including Verta, Kral, and

Madsen—said they had noticed the scent of alcohol on Seiser’s

breath or observed overt signs of intoxication does not negate

probable cause. The key facts that gave rise to the reasonable

suspicion that Seiser had been driving while intoxicated were

the witness sightings of him drinking from a liquor bottle while

driving and the confirmation afterward by Verta and Price that

there was an open liquor bottle in the front seat of Seiser’s car.

Morever, Gary Anderson, who reported having a confronta-

14 No. 13-1985

tion with Seiser after he copied down Seiser’s license plate

number, indicated that he had smelled alcohol on Seiser’s

breath. The police had no reason to disregard Gary Anderson’s

statement in this regard, even if the other officers did not

themselves notice the scent of alcohol.

In sum, under the circumstances confronting Kirby, there

was probable cause to administer the breathalyzer. Given the

eyewitness accounts and the presence of a bottle labeled as

containing an alcoholic beverage in Seiser’s car, a reasonable

person would have believed that Seiser had committed a DUI

offense. It was therefore reasonable to believe that the breatha-

lyzer would yield evidence of that crime.

B. Qualified immunity and administering the breathalyzer

without a warrant

Because a breathalyzer examination is a form of search, a

warrant for the test ordinarily is required, absent, for example,

the presence of exigent circumstances that make obtaining a

warrant impractical. See Missouri v. McNeely, 133 S. Ct. 1552,

1560–63 (2013); Schmerber, 384 U.S. at 770–71, 86 S. Ct. at

1835–36.

The Supreme Court’s decision in Schmerber recognized that,

in view of the natural metabolization of alcohol over time and

the delays that can occur in obtaining a warrant, the need to

timely ascertain an individual’s blood-alcohol level may

present an exigency that justifies a warrantless examination.

The officer in the present case … might reasonably have

believed that he was confronted with an emergency, in

which the delay necessary to obtain a warrant, under

No. 13-1985 15

the circumstances, threatened “the destruction of

evidence,” Preston v. United States, 376 U.S. 364, 367, 84

S. Ct. 881, 883. We are told that the percentage of

alcohol in the blood begins to diminish shortly after

drinking stops, as the body functions to eliminate it

from the system. Particularly in a case such as this,

where time had to be taken to bring the accused to a

hospital and to investigate the scene of the accident,

there was no time to seek out a magistrate and secure a

warrant. Given these special facts, we conclude that the

attempt to secure evidence of blood-alcohol content in

this case was an appropriate incident to petitioner’s

arrest.

Ibid.

In the wake of the Schmerber decision, the Illinois Appellate

Court, like a number of other courts, appears to have con-

cluded that the natural dissipation of alcohol from the blood-

stream, coupled with the delay associated with seeking a

warrant, constituted a per se exigency that routinely justified

the warrantless administration of a breathalyzer. Thus, in

People v. Carey, 898 N.E.2d 1127, 1134 (Ill. App. Ct. 2008), the

court—without addressing how much time had passed before

the defendant police officer was ordered to take a breathalyzer

test or how much additional delay an attempt to obtain a

warrant likely would have caused—said simply, “[A]lcohol in

the bloodstream begins to naturally dissipate shortly after

drinking stops and therefore the delay in obtaining a search

warrant would have risked the loss of evidence.” Id. (citing

16 No. 13-1985

Schmerber, 384 U.S. at 770–71, 86 S. Ct. at 1835–36).3 The district

court in this case employed the same reasoning in concluding

that the breathalyzer was a reasonable search. R. 48 at 9. Courts

from other jurisdictions, by contrast, had held that whether

there were “special facts” (see Schmerber, 384 U.S. at 771, 86

S. Ct. at 1836) apart from the evanescent nature of blood-

alcohol content establishing an exigency must be evaluated on

a case-by-case basis. See McNeely, 133 S. Ct. at 1558 n.2 (collect-

ing cases on both sides of this division of authority).

Subsequent to the district court’s decision in this case, the

Supreme Court in McNeely resolved the split against a rule of

per se exigency in blood-alcohol cases. Relying in part on the

fact that technological advances have made it possible to obtain

warrants more expeditiously through such means as tele-

phone, radio, email and other electronic communications, and

videoconferencing, the Court reasoned that the dissipation of

alcohol does not always present an exigency justifying the

warrantless administration of a blood-alcohol test. 133 S. Ct. at

1560–61. Instead, the circumstances must be evaluated on a

3

Carey was decided by the First District appellate court, which has

jurisdiction over Chicago. Courts in other districts had held similarly. See

People v. Ayres, 591 N.E.2d 931, 933 (Ill. App. Ct. 3d Dist. 1992) (“We note

that the evidence was evanescent in nature because alcohol in a DUI

suspect’s blood begins to dissipate shortly after the individual stops

consuming alcohol. There is no time to seek out a magistrate to obtain a

search warrant.”) (citing Schmerber); People v. Byrd, 574 N.E.2d 1269, 1271

(Ill. App. Ct. 4th Dist. 1991) (“[T]he evidence is evanescent in nature.

Alcohol in the bloodstream of a DUI suspect begins to dissipate shortly

after drinking stops. There is no time to seek out a magistrate and secure a

warrant.”) (citing Schmerber).

No. 13-1985 17

case-by-case basis to determine whether warrantless action was

justified. Id. at 1563.

Even if we assume, in view of the Court’s decision in

McNeely, that exigent circumstances did not excuse the failure

to seek a warrant in this case, the doctrine of qualified immu-

nity nonetheless shields Kirby from liability.4 Qualified

immunity bars a civil claim for damages against a government

official when the official is performing a discretionary function

and her conduct does not violate clearly established rights of

which a reasonable person would have known. E.g., Sutterfield

v. City of Milwaukee, 751 F.3d 542, 572 (7th Cir. 2014) (citing,

inter alia, Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727,

2738 (1982)); Volkman v. Ryker, 736 F.3d 1084, 1089–90 (7th Cir.

2013). Put another way, an official making a discretionary

decision is entitled to the protection of qualified immunity

when a reasonable person in her position would not have

appreciated that her conduct was illegal under the circum-

stances. Id. at 1090; Phelan v. Vill. of Lyons, 531 F.3d 484, 487 (7th

Cir. 2008).

At the point that the breathalyzer test was administered to

Seiser, a reasonable police official would have believed in light

of Carey and like cases that so long as there was probable cause

4

The defendants raise a question as to why Kirby should be exposed to

liability based on administration of the breathalyzer test, as she did not

order that Seiser be subject to such a test; rather, that was the decision of

officers Madsen and Kral. But giving Seiser the benefit of the doubt, we

shall assume arguendo that Kirby’s decree that Seiser be criminally

processed included or triggered her subordinates’ pursuit of ordinary,

foreseeable tests for intoxication, including a breathalyzer test.

18 No. 13-1985

to justify a breathalyzer examination, there was no need to

consider seeking a warrant first. By the time Seiser was being

processed at the Ninth District, nearly two and one-half hours

had transpired since he was seen drinking from the liquor

bottle, and an attempt to obtain a warrant, through whatever

means, would have portended at least some further delay.

Carey suggested that dispensing with a warrant application

was a sound course. And as the McNeely decision recognizes,

there was a prior division of authority among courts on this

very point. 133 S. Ct. at 1558 & n.2. Conflicting precedents

present the very sort of uncertainty as to what the law requires

that entitles a public official to qualified immunity. See Reichle

v. Howards, 132 S. Ct. 2088, 2096 (2012) (“If judges … disagree

on a constitutional question, it is unfair to subject police to

money damages for picking the losing side of the contro-

versy.”) (quoting Wilson v. Layne, 526 U.S. 603, 618, 119 S. Ct.

1692, 1701 (1999)).

Seiser suggests that Kirby should not be given the benefit

of qualified immunity because, in his view, Kirby usurped the

role of a line police officer by ordering that Seiser be processed

criminally—i.e., that she inserted herself into an area not within

the scope of her authority. See Johnson v. Phillips, 664 F.3d 232,

236–37 (8th Cir. 2011) (official who acts outside clearly estab-

lished scope of his discretionary authority is not entitled to

assert qualified immunity) (collecting cases). On the record

before us, we reject the argument. Supervision of the IAD

(among other divisions of the department) was one of Kirby’s

responsibilities as a deputy superintendent of the police force.

Kirby testified that as an extension of her oversight responsibil-

ities, it was within her purview to make decisions as to the

No. 13-1985 19

proper handling of a police officer who has been implicated in

a crime. R. 44-1 Supp. Ex. C at 74–75. That testimony, not to

mention ordinary logic, suggests that it was not beyond her

authority to issue the order that Seiser be processed criminally.

See Anderson v. Creighton, 483 U.S. 635, 643, 107 S. Ct. 3034,

3040–41 (1987) (“[W]e have been unwilling to complicate

qualified immunity analysis by making the scope or extent of

immunity turn on the precise nature of various officials’ duties

or the precise character of the particular rights alleged to have

been violated.”). Nor is it surprising that a high-ranking officer

within the department would become involved in this instance,

given the sensitivity of the allegations—that a Chicago police

officer was drinking while driving, in a school zone, en route

to his assigned post as a school safety officer—and the corre-

sponding need to make sure the allegations were handled

properly. The negative ramifications for the department in

terms of the public trust would have been serious were it

perceived that Seiser was given lenient treatment. In short, we

are given no reason to believe, in light of Kirby’s oversight

authority, that it was beyond her purview to direct that Seiser

be processed criminally. To the extent the decision to adminis-

ter the breathalyzer is properly attributed to Kirby as a result

of that order, we can see no reason why she should be de-

prived of qualified immunity.

C. Malicious prosecution

Seiser has also alleged that the decision to charge him with

the open-container violation (until the test of the bottle’s

contents proved negative for alcohol), constituted malicious

20 No. 13-1985

prosecution for which the City should be liable.5 To prove the

tort of malicious prosecution under Illinois law, Seiser bears

the burden of proving that (1) the City initiated criminal

proceedings against him; (2) those proceedings were termi-

nated in his favor; (3) there was no probable cause to support

the proceedings; (4) malice was present, i.e., that the officer

who initiated the proceedings was motivated by something

other than a desire to bring a guilty party to justice; and (5) he

suffered damages as result of the proceedings. See, e.g.,

Williams v. City of Chicago, 733 F.3d 749, 759 (7th Cir. 2013);

Aleman v. Vill. of Hanover Park, 662 F.3d 897, 907 (7th Cir. 2011)

(malice); Holland v. City of Chicago, 643 F.3d 248, 254 (7th Cir.

2011). As the lack of probable cause is an element of malicious

prosecution, evidence demonstrating that there was probable

cause to believe the plaintiff had committed an offense is a

complete bar to the claim. E.g., Venson v. Altamirano, 749 F.3d

641, 651 (7th Cir. 2014).

After the breathalyzer examination yielded a negative

result, Seiser was charged solely with the open-container

violation. The governing Illinois statute provides in relevant

part that “no driver may transport, carry, possess or have any

alcoholic liquor within the passenger area of any motor vehicle

upon a highway in [Illinois] except in the original container

and with the seal unbroken.” 625 ILCS 5/11-502(a). There is no

dispute that the bottle that Seiser had with him in his car was

“open” in the sense that its seal had been broken or that it was,

in fact, a liquor bottle. Of course, what was in the bottle was

5

Seiser’s opening brief makes clear that he is pursuing this claim against

the City alone. Seiser Br. 23.

No. 13-1985 21

not alcohol, but that did not become clear until a month later,

when the results of the laboratory testing were disclosed. So

the essential question is whether, at the time was Seiser

charged with the open-container violation, the facts known to

the police (and, in particular, to Sergeants Verta and Cochran,

who reportedly made the decision to issue the citation to

Seiser) would have warranted a reasonable belief that the

bottle contained alcohol.

The answer to that question is yes. Apart from the wit-

nesses who had seen Seiser drinking from what appeared to be

a liquor bottle, both Verta and Price observed the bottle on the

front seat of Seiser’s car. The bottle matched (on the whole) the

description given by the witnesses with whom they had

spoken, and it contained a clear liquid. When asked by Verta

what was in the bottle, Seiser was evasive. A reasonable person

confronted with these circumstances could reasonably believe

that the open bottle contained alcohol.6

6

To the extent Seiser suggests that Illinois employs a more demanding

standard for assessing probable cause vis-à-vis the decision to pursue a

charge, we are not persuaded that is true. Notwithstanding recurrent

references in Illinois malicious prosecution cases to a belief that the accused

is “probably guilty of an offense,” e.g., Howard v. Firmand, 880 N.E.2d 1139,

1142 (Ill. App. Ct. 2007) (internal quotation marks and citations omitted),

those same cases continue to affirm that “a state of facts that would lead a

person of ordinary care and prudence to believe or to entertain an honest and

sound suspicion that the accused committed the offense charged” is sufficient

to establish probable cause to charge the accused, id. (emphasis supplied).

Indeed, the Illinois Appellate court has twice rejected the notion that the

probable cause standard for the decision to charge is meaningfully different

from the probable cause standard for the decision to arrest. See Johnson v.

(continued...)

22 No. 13-1985

Seiser pursues a second line of argument. Given that he was

ordered to turn over the bottle, he reasons, the City from the

outset could not reasonably have expected that the bottle, and

the laboratory results as to its contents, would be admissible

against him at trial. In other words, whatever its suspicions, the

City could not expect that it would be able to prove its case

against him. His argument is based on Garrity v. New Jersey, 385

U.S. 493, 87 S. Ct. 616 (1967), which held that statements

obtained from a police officer under threat of removal from

office if he exercised his right to remain silent are not admissi-

ble against the officer in a subsequent criminal proceeding.

Contrary to the premise of Seiser’s argument, it would not

have been clear to the City or to Sergeants Verta and Cochran

that the bottle necessarily was inadmissible against Seiser in a

criminal proceeding. As the defendants point out, the Illinois

appellate court in Carey expressly rejected an argument that

the results of a breathalyzer test to which a police officer had

been ordered to submit on pain of termination if he did not

were inadmissible against the officer pursuant to Garrity. 898

6

(...continued)

Target Stores, Inc., 791 N.E.2d 1206, 1225 (Ill. App. Ct. 2003) (describing the

two standards as “for all purposes, equal”; Ross v. Mauro Chevrolet, 861

N.E.2d 313, 320 (Ill. App. Ct. 2006); see also London v. Harris, No. 09 C 7797,

2013 WL 1405250, at *7 (N.D. Ill. Apr. 15, 2013) (pointing out decisions from

both this court and the Illinois Appellate Court which have treated probable

cause to arrest as dispositive of a malicious prosecution claim). What may,

in practical terms, distinguish the decision to charge from the decision to

arrest is any additional information that comes to light between the time a

person is arrested and the point at which he is charged. Johnson, 791 N.E.2d

at 1225; Ross, 861 N.E.2d at 320.

No. 13-1985 23

N.E.2d at 1139–40. The court reasoned that the Fifth Amend-

ment privilege against self-incrimination, on which Garrity’s

holding is based, applies only to testimonial and communica-

tive evidence, and not to physical evidence including the

results of a compulsory blood or breath test. Id. It thus would

have been reasonable for the charging officers to conclude that

Garrity posed no bar to the admission of the bottle, its contents,

and the results of the laboratory testing against Seiser in a

criminal proceeding.

Because there was probable cause to believe that Seiser had

violated the open-container statute, his malicious prosecution

claim is foreclosed.

III.

The district court properly entered summary judgment in

favor of the defendants as to both the unreasonable search

claim as well the malicious prosecution claim, as both the

administration of the breathalyzer test and the decision to

charge Seiser with an open-container violation were supported

by probable cause.

AFFIRMED.