Neiman, Kenneth v. Keane, T.M.

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3286

KENNETH NEIMAN,

Plaintiff-Appellant,

v.

THOMAS M. KEANE,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern

Division.

No. 98 C 3209--Charles P. Kocoras, Judge.

Argued August 9, 2000--Decided November 13, 2000

Before POSNER, RIPPLE and WILLIAMS, Circuit

Judges.

RIPPLE, Circuit Judge. After several

businesses reported that Kenneth Neiman

had refused to pay for part or all of

work performed on his home, Detective

Thomas Keane of the Deerfield, Illinois

Police Department arrested Mr. Neiman.

The detective made the arrest pursuant to

a warrant, procured by him, alleging that

Mr. Neiman had committed the offense of

theft of services. After several court

appearances, the Lake County State’s

Attorney voluntarily dismissed the

charges against Mr. Neiman. Mr. Neiman

then filed this action under 42 U.S.C.

sec. 1983; he alleged that Detective

Keane violated the Fourth Amendment by

applying for the warrant in the absence

of probable cause. The district court

granted summary judgment for Detective

Keane. We affirm the judgment of the

district court.

I

BACKGROUND

In December 1996, Mr. Neiman hired

Bishop Heating Company to repair the

furnace in a home that he had purchased

on Overland Drive in Deerfield. According

to Mr. Neiman, a Bishop Heating employee

inspected the furnace and told him that

it merely needed to be cleaned, a service

that would cost approximately $105. After

he was quoted the price, Mr. Neiman left

the repairman in the house to work on the

furnace. When Mr. Neiman returned, he

found a bill totaling almost $400. Mr.

Neiman refused to pay the bill because he

believed the Bishop Heatingemployee had

performed unauthorized services.

Subsequently, a Bishop Heating

representative called Detective Keane at

the Deerfield Police Department and

complained that, although Bishop Heating

had repaired Mr. Neiman’s furnace, Mr.

Neiman had refused to pay the bill. Mr.

Neiman avers that Detective Keane then

called him and threatened to arrest him

if he did not pay the disputed bill.

Detective Keane, on the other hand,

insists that he called Mr. Neiman to

inquire about the unpaid bill and that

Mr. Neiman told him the bill was disputed

but nevertheless agreed to pay it.

Detective Keane admits, however, that he

told Mr. Neiman that he might initiate

charges against him if the bill was not

paid. Both parties agree that Mr. Neiman

tendered a cashier’s check for the full

amount of the bill to Detective Keane.

The detective delivered it to Bishop

Heating.

In July of 1997, Mr. Neiman complained

to the Deerfield Police Department that

someone had entered the Overland Drive

home, which was empty at the time, and

had stolen some repair tools. Detective

Keane, who was assigned to investigate

the burglary, asked Mr. Neiman for a list

of possible suspects. Mr. Neiman named

several businesses that at various times

had performed work on the burglarized

home, including Pasquesi Plumbing

("Pasquesi"), A-American Contractors and

Supplies ("A-American"), E & B

Landscaping Co. ("E & B") and Woody’s

Tree Service ("Woody’s"). During

Detective Keane’s investigation of the

burglary, these four businesses

complained that they had performed

services for Mr. Neiman, but that Mr.

Neiman later refused to pay for some or

all of the work. Detective Keane

questioned Mr. Neiman about these

allegations of non-payment; Mr. Neiman

responded that he had not paid the

companies because they either had failed

to complete the work he had requested or

had not performed it properly.

Detective Keane avers that, as a result

of his investigation, he believed that

Mr. Neiman had engaged in a pattern of

deception by which Mr. Neiman hired

businesses to perform work on the

Overland Drive house and then fabricated

reasons to evade payment. The detective

thus sought approval from Lake County

Assistant State’s Attorney Donald

Morrison ("ASA Morrison") to file charges

against Mr. Neiman for theft of services

by deception. At first, ASA Morrison

voiced skepticism regarding whether there

was sufficient evidence to prove that Mr.

Neiman intended not to pay E & B and

Woody’s, the two businesses that were re

ceptive to prosecuting Mr. Neiman. After

Detective Keane informed him of the other

businesses’ reports of non-payment,

however, ASA Morrison concluded that

evidence of these other alleged non-

payments exhibited a pattern of conduct

that would be admissible to demonstrate

the requisite intent to obtain services

fraudulently. ASA Morrison then signed an

information charging Mr. Neiman with

theft of services from E & B and Woody’s.

The information was then presented to a

judge, who issued a warrant for Mr.

Neiman’s arrest. Eventually, however, ASA

Morrison voluntarily dropped the charges

against Mr. Neiman.

After the charges against him were

dismissed, Mr. Neiman filed this suit

alleging that Detective Keane "acting

willfully, maliciously, and without

probable cause . . . caused two criminal

charges to be instituted against [Mr.

Neiman]." R.1 at 2. Detective Keane moved

for summary judgment; he argued that the

arrest was made pursuant to a valid

warrant, and, in the alternative, that

probable cause supported the arrest. The

district court granted Detective Keane’s

motion. It concluded that Mr. Neiman had

presented no evidence that the detective

misled the prosecutor or the judge.

Because it found that the arrest was made

pursuant to a valid warrant, the court

did not address whether there was

probable cause for the arrest. Mr. Neiman

then timely filed this appeal.

II

DISCUSSION

The parties do not disagree on the

governing legal principles. A plaintiff

cannot base a valid Fourth Amendment

claim on an arrest made under a valid

warrant. See Baker v. McCollan, 443 U.S.

137, 143-44 (1979). The officer procuring

the warrant, however, enjoys not absolute

but qualified immunity with respect to

his actions in the application of the

warrant. See Malley v. Briggs, 475 U.S.

335, 344 (1986). In Malley, the Supreme

Court made clear that an officer

procuring a warrant is held to the same

standard of objective reasonableness that

applies in the context of a suppression

hearing./1 Accordingly, the officer

procuring the warrant is immune from a

suit for damages unless it can be shown

that the "warrant application is so

lacking in indicia of probable cause as

to render official belief in its

existence unreasonable." Malley, 475 U.S.

at 344-45. We therefore have held that an

officer is not immune from suit for

procuring a warrant "if a reasonably

well-trained officer in the position of

the defendant would have known that the

action lacks probable cause and that he

should not have applied for the warrant."

Simmons v. Pryor, 26 F.3d 650, 653 (7th

Cir. 1993); see also Juriss v. McGowan,

957 F.2d 345, 350-51 (7th Cir. 1992).

This situation, we pointed out, occurs

when the officer procuring the warrant

does not inform the judicial officer of

facts that would negate probable cause or

when the officer recklessly disregards

the truth in his representations to the

judicial officer. See Olson v. Tyler, 825

F.2d 1116, 1121 (7th Cir. 1987)./2

Mr. Neiman claims that the detective

acted improperly in three ways. First,

Mr. Neiman alleges that the detective

misled ASA Morrison by not disclosing his

prior involvement in Mr. Neiman’s

disputed debt with Bishop Heating.

Second, the detective purportedly did not

conduct a reasonable investigation

regarding whether the work for which Mr.

Neiman refused payment was actually

completed. Lastly, the detective

allegedly failed to ask Mr. Neiman for

his side of the story before arresting

him.

In our view, Mr. Neiman failed to

produce evidence that Detective Keane had

misled the prosecutor in obtaining the

warrant. When discussing the possibility

of filing charges against Mr. Neiman,

Detective Keane informed ASA Morrison

about the disputes regarding payment for

services that Mr. Neiman had with five

businesses, including Bishop Heating.

There is no evidence in the record that

the detective lied or withheld

information about the nature of the

disputes. Mr. Neiman’s denial of the

allegations of the contractors does not,

standing alone, "negate probable cause."

Olson, 825 F.2d at 1121. Rather, as

evidenced by ASA Morrison’s deposition

testimony, Detective Keane relayed

information on each incident to ASA

Morrison, and ASA Morrison determined

there was a pattern of Mr. Neiman

disputing his bills and then not paying

all or part of them. Although Detective

Keane had only circumstantial evidence of

criminal motive, we have noted that

police officers "have a hard time

evaluating competing claims about motive;

they are entitled to act on the basis of

observable events and let courts resolve

conflicts about mental states." Hebron v.

Touhy, 18 F.3d 421, 423 (7th Cir. 1994).

Furthermore, the record shows that

Detective Keane did have probable cause

to arrest Mr. Neiman even absent a valid

arrest warrant./3 Probable cause exists

at the time of arrest when reasonably

trustworthy information, facts and

circumstances would lead a prudent person

to believe that a suspect had committed

or was committing a crime. See Speigel v.

Cortese, 196 F.3d 717, 723 (7th Cir.

1999), cert. denied, 120 S. Ct. 2688

(2000). Generally, whether there is

probable cause is a jury question, but

"when there is no room for a difference

of opinion concerning the facts or the

reasonable inferences to be drawn from

them," a court may decide the issue.

Booker v. Ward, 94 F.3d 1052, 1058 (7th

Cir. 1996) (citation and internal

quotations omitted).

In this case, the record clearly shows

that the detective investigated and

relied on sufficient information to

establish a reasonable belief that Mr.

Neiman had committed theft of services by

deception. Five different businesses

informed Detective Keane that Mr. Neiman

had not paid for all or part of the work

that they had performed on the Overland

Drive home. The businesses explained to

the detective that they had completed all

of the work for which they were hired,

which conflicts with Mr. Neiman’s claim

that the contractors had not done all of

the work or had done the work improperly.

Complaints from putative victims about

alleged crimes generally establish

probable cause unless the complaint

"would lead a reasonable officer to be

suspicious." Hebron, 18 F.3d at 422-23.

If a reasonable officer should be

suspicious that the putative

victims’complaints are not reliable, then

the officer is obliged to conduct a

further examination of the complaint. See

id. at 423. That is not the situation in

this case. Here the detective received

five independent reports from contractors

alleging that Mr. Neiman had not paid for

services. Detective Keane had reason to

believe that the complaints from the

putative victims were truthful because

all five businesses complained of the

same behavior by Mr. Neiman. Thus,

Detective Keane did not have an

additional duty to inspect Mr. Neiman’s

premises to see if the work had actually

been performed to Mr. Neiman’s

specifications. See, e.g., Kelley v.

Myler, 149 F.3d 641, 647 (7th Cir. 1998)

(holding that because third-party

complainant’s information was reliable,

police officers had no duty to

investigate whether arrestee was on

private property before arresting her for

trespass). Notwithstanding the fact that

the detective was not required to conduct

a further investigation, the record shows

that Detective Keane did conduct an

additional investigation into the alleged

crime by interviewing Mr. Neiman about

the allegations against him. That Mr.

Neiman provided a reason for not paying

the businesses does not negate the

existence of probable cause to arrest

him. See Hebron, 18 F.3d at 423.

Conclusion

Accordingly, we affirm the grant of

summary judgment to Detective Keane.

AFFIRMED

/1 Cf. United States v. Leon, 468 U.S. 897, 922

(1984) (holding, in the context of a suppression

motion, that the officer’s reliance on the magis-

trate’s probable-cause determination must be

objectively reasonable).

/2 We cannot accept Mr. Neiman’s characterization of

the district court’s opinion as misapprehending

these principles. In any event, in light of our

de novo review of the record, any misapprehension

is of no consequence to the outcome of this

appeal. See, e.g., Malacara v. City of Madison,

224 F.3d 727, 729 (7th Cir. 2000).

/3 The district court did not address the probable

cause question, but this court may affirm the

district court’s grant of summary judgment on any

ground supported by the record. See Long v.

Shorebank Dev. Corp., 182 F.3d 548, 560 (7th Cir.

1999).