Molina, Raul v. Cooper, Gary

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-1995

RAUL MOLINA, JACKIE MOLINA, and CHAD MOLINA

and JOSHUA MOLINA, by and through their parents

and next friends Raul and Jackie Molina,

Plaintiffs-Appellants,

v.

GARY COOPER, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 00 C 50230—Philip G. Reinhard, Judge.

____________

ARGUED DECEMBER 10, 2002—DECIDED APRIL 15, 2003

____________

Before FLAUM, Chief Judge, and POSNER and WILLIAMS,

Circuit Judges.

WILLIAMS, Circuit Judge. Following a search of their

home, the Molinas brought suit against numerous police

officers, arguing that the search warrant for their home

was invalid, the “knock and announce” rule was violated,

and the use of flash bang devices was unreasonable. The

district court granted summary judgment for the officers.

Because the Molinas have not shown that the search

warrant lacked probable cause, and because the officers

2 No. 02-1995

complied with the “knock and announce” rule and reason-

ably used flash bang devices, we affirm.

I. BACKGROUND

The police began investigating Raul Molina after receiv-

ing information from two informants, Jason Ramirez

and Jason Villa, that he was the head of a drug distribu-

tion organization. Ramirez told police in two taped inter-

views that (among other things) he had been a member

of Raul’s organization from 1990 until his arrest in 1997,

picked up drugs from Raul’s home for delivery in the past,

and had seen up to one kilogram of cocaine in Raul’s

residence. Villa also provided a taped statement indicat-

ing that Raul controlled a drug organization, Villa dealt

five pounds of marijuana a week for Raul for several years

until Villa’s 1995 arrest, and Villa had incurred a debt

with Raul’s organization during that time period. On July

3, 1998, in an effort to corroborate these statements, offi-

cers Gary Cooper and Robbie Dail searched the Molinas’

garbage and several items tested positive for the probable

presence of cocaine.

Two days later, Officer Cooper obtained a search warrant

for the Molinas’ home. In his affidavit in support of the

search warrant, Officer Cooper relied upon the positive

field tests and the statements he had received from Villa

and Ramirez. After a judge found probable cause and is-

sued the search warrant, Officer Cooper met with John

Simonton, head of the Tactical Response Team (“TRT”), to

decide how the warrant should be executed. Because the

TRT assists in executing “high risk” warrants and the

information about Raul satisfied the criteria for “high risk”

No. 02-1995 3

searches,1 they agreed that the TRT would participate

in the search.

Shortly after midnight on July 6, 1998, the officers

searched the Molinas’ home in Sterling, Illinois. Simonton

said in his deposition that Trooper Bain, a TRT member,

initiated the search by knocking on the front door and

calling out three times, “Illinois State Police search war-

rant, open the door!” The Molinas contest this assertion,

but only offer Jackie’s testimony that she was asleep

when the officers arrived and that she woke up to the

sound of screaming and yelling.

After no one responded to Trooper Bain’s three calls, the

TRT claims they waited another five seconds before break-

ing down the doors and entering the Molinas’ home. Jackie

Molina jumped out of bed, and was walking towards

the hallway leading toward the front door when she was

grabbed by a TRT officer and shoved to the ground. Jackie

alleges that while she was on the ground one of the TRT

officers placed a gun to her head. She was then handcuffed

and detained in the living room along with her two chil-

dren, Chad and Joshua.

After securing the living room, the TRT officers contin-

ued searching for Raul. In his deposition, Officer Cooper

stated that the officers had previously obtained informa-

tion that Raul’s scheduled work shift ended at 11:00 p.m.,

and they believed he would be at home when they exe-

cuted the search warrant. When Raul was not found on

the first floor, the TRT officers thought he might be in

the basement. The TRT officers threw a flash bang de-

1

Specifically, Raul’s criminal history, alleged drug distribution

activities, association with gangs, and stash of weapons at his

home qualified the search as “high risk.”

4 No. 02-1995

vice2 into the basement and went into the basement living

room area, but were unable to find Raul. They threw

another flash bang device into one of the basement bed-

rooms, but didn’t find Raul. After securing the entire

home, the TRT officers learned that Raul was still at work.

The investigating officers, including officers Cooper and

Dail, then entered the home and conducted the search.

What they found included a set of brass knuckles (which

the Molinas contend is actually a belt buckle), a switch-

blade knife, fireworks, three round plastic balls with

functional fuses filled with explosive substances, and a

small digital scale commonly used by drug dealers. In

their depositions, officers Cooper and Dail said that a

“powdery substance” or “haze” was on the scale, but that

the substance was not subjected to a field test because

doing so would have left too little for laboratory tests.

The Molinas were not arrested that night.

Ultimately, the laboratory results confirmed that the

substance found on the Molinas’ scale was cocaine, but

came back negative for two items that had field-tested

positive for the probable presence of illegal substances

during the search. Raul and Jackie were arrested for

possession of a controlled substance, unlawful use of weap-

ons, and possession of drug paraphernalia. Almost a year

later, those charges were all dismissed.

Raul, Jackie, Chad, and Joshua Molina filed a 42 U.S.C.

§ 1983 suit in federal district court, claiming that their

constitutional rights were violated by officers who were

with the Illinois Police, local police agencies, or multi-

2

These devices are also referred to by the parties as “concussion

bombs” or “distraction devices.” According to the officers, they

emit a bright light and make a loud noise, and are used to distract

suspects momentarily so that officers can safely enter occupied

areas.

No. 02-1995 5

county police task forces (“the officers”). In a thoughtful

opinion, the district court granted summary judgment

to the officers on all of the plaintiffs’ claims. On appeal,

the Molinas do not contest many of the district court’s

findings, but continue to argue lack of probable cause for

the search warrant, “knock and announce” violations,

unreasonable use of flash bang devices, and unnecessary

property damage resulting from the search.

II. ANALYSIS

A. Qualified Immunity Defense

We review a grant of summary judgment de novo. See

Campell v. Towse, 99 F.3d 820, 826 (7th Cir. 1996). A

movant is entitled to judgment as a matter of law only

if there is no genuine issue of material fact. Fed. R. Civ. P.

56(c); Celotex v. Catrett, 477 U.S. 317, 323 (1986). We

view the evidence and draw all reasonable inferences in

the light most favorable to the nonmoving party. See Chavez

v. Ill. State Police, 251 F.3d 612, 635 (7th Cir. 2001).

The officers, who are all sued in their individual capaci-

ties, assert a qualified immunity defense. Here, we focus

on whether, taking the facts in the light most favorable

to the Molinas, the officers’ conduct violated the Molinas’

constitutional rights. Saucier v. Katz, 533 U.S. 194, 201

(2001). Assuming this requirement is met, the next ques-

tion is whether the constitutional right at issue was

clearly established such that a reasonable officer would

understand that his actions violated that right. Id. at 201-

02. The Molinas bear the burden of defeating this de-

fense. See Sparing v. Vill. of Olympia Fields, 266 F.3d 684,

688 (7th Cir. 2001).

6 No. 02-1995

B. Probable Cause

The plaintiffs allege that the search warrant for their

home was not supported by probable cause because Offi-

cer Cooper both omitted information and provided false

and misleading information in the affidavit he presented

to obtain the warrant. However, “[t]here is . . . a presump-

tion of validity with respect to the affidavit supporting

the search warrant.” See Franks v. Delaware, 438 U.S. 154,

171 (1978). To overcome this hurdle, the Molinas must

provide evidence that the officers “knowingly or inten-

tionally or with a reckless disregard for the truth, made

false statements to the judicial officer, and that the

false statements were necessary to the judicial officers’

determinations that probable cause existed for the ar-

rests.” See Beauchamp v. City of Noblesville, 320 F.3d 733,

742 (7th Cir. 2003) (citing Franks, 438 U.S. at 155-56).

“Immaterial misstatements will not invalidate an other-

wise legitimate warrant.” Forman v. Richmond Police

Dep’t, 104 F.3d 950, 964 (7th Cir. 1997). The same rules

apply to omissions. See Supreme Video, Inc. v. Schauz, 15

F.3d 1435, 1441 (7th Cir. 1994); United States v. Williams,

737 F.2d 594, 604 (7th Cir. 1984).

1. Villa’s statements

The Molinas point to Paragraph 7 of Officer Cooper’s

affidavit, which relied on Villa’s recorded statement,

contending that: (1) Villa’s information was stale; (2)

officers Cooper and Dail coerced Villa’s testimony; (3)

officers Cooper and Dail used the tape recorder to manipu-

late Villa’s statements; (4) Villa’s incriminating state-

ments regarding Raul were false; and (5) officers Cooper

and Dail knew the statements were false at the time they

were made.

We agree with the district court that “there might be

some questions of fact as to whether Cooper had reasons to

No. 02-1995 7

doubt the veracity of Villa’s allegations.” See Molina ex rel.

Molina v. Cooper, No. 00 C 50230, 2002 WL 426035, at

*3 (N.D.Ill. Mar. 18, 2002). Moreover, Villa’s information

was not particularly timely, as his alleged dealings with

Molina ended in 1995, and the warrant was not obtained

until July 1998. See United States v. McNeese, 901 F.2d

585, 596-97 (7th Cir. 1990), overruled on other grounds by

United States v. Westmoreland, 240 F.3d 618 (7th Cir.

2001). For these reasons we agree that the district court

properly disregarded Villa’s statements in determining

whether probable cause existed. However, we also agree

with the district court that even if Villa’s statements

are totally disregarded, Ramirez’s statements and the

positive field test results from the Molinas’ garbage were

enough to establish probable cause. See Franks, 438 U.S.

at 171-72; Forman, 104 F.3d at 964.

2. Ramirez’s statements

The Molinas suggest that the information in the affidavit

based on Ramirez’s statements is problematic. The portion

of Officer Cooper’s affidavit that discussed Ramirez’s

statements follows:

In 1997 and 1998, the Illinois State Police,

Blackhawk Area Task Force, (ISP/BATF), received

information from Jason Ramirez. Ramirez advised

from 1990 through 1997 until the time he was

arrested, Salvador Estrada and himself “Jason

Ramirez” were high ranking members of the

Molina drug organization. Ramirez advised that

during this time Estrada and himself received

approximately twenty seven ounces of cocaine a

week and approximately fifty pounds of cannabis

a month, which they redistributed for Molina.

Ramirez then advised that Estrada and himself

returned to Raul Molina at least ten thousand

8 No. 02-1995

dollars a week from cannabis and cocaine sales

during this time period, which totals at least five

hundred twenty thousand dollars a year. Ramirez

advised that Estrada and himself would pick-up the

cocaine directly from Raul Molina at Molina’s resi-

dence [on] Indian Ridge Road, [in] Sterling, Illi-

nois. The cannabis would be picked up at the Luis

Javier Reyes residence on Hunter Street, Sterling,

Illinois, where it was being stored for Molina. Reyes

is a relative of Molina. Ramirez also advised that

Raul Molina keeps his drug records in a ledger in

the basement of the Molina residence. Ramirez

advised that he has been in the Molina residence

on several different occasions, where he has also

seen up to a kilogram of cocaine in the basement

of the Molina residence.

Specifically, the Molinas claim that Officer Cooper

omitted various facts and inconsistencies in his summary

of Ramirez’s statement. The alleged omissions are failure

to: (1) acknowledge that Ramirez gave different num-

bers regarding the amount of cocaine he allegedly distrib-

uted for Raul; (2) note that Ramirez provided contradic-

tory statements regarding the cocaine pick-up location

and the presence of cocaine at Raul’s residence; (3) men-

tion concerns about Ramirez’s statements regarding mari-

juana distribution, gang involvement, drug suppliers, and

drug proceeds; and (4) state that Ramirez provided infor-

mation to get favorable treatment on his pending criminal

aggravated battery charge, and that he was initially re-

leased from jail without posting bond.

As to their first assertion that Ramirez gave inconsis-

tent statements during his interview regarding cocaine

quantities, Ramirez claimed that the amount of cocaine

he delivered varied and depended on demand. And al-

though he provided different figures during the inter-

view, he ultimately settled on approximately 27 ounces per

No. 02-1995 9

week.3 When weighed against Ramirez’s detailed, corrobo-

rated, self-incriminating, first-hand accounts of Raul’s

alleged drug distribution activities, it is clear that Officer

Cooper’s failure to include information about fluctuating

cocaine amounts in the search warrant affidavit did not

affect the probable cause equation.

Additionally, we reject the Molinas’ claim that Ramirez’s

statements regarding the presence of cocaine in Raul’s

basement and the pick-up location for the cocaine in-

cluded blatant inconsistencies. The record suggests that

many of these comments are reconcilable (for instance,

Ramirez’s claim that he picked up drugs at the home of

someone named “Chavo” on Thursdays does not conflict

with his statement that he picked up drugs from Raul’s

home two to three times a week), and even if they are

not reconcilable, the inconsistencies are of “minimal sig-

nificance.” See McNeese, 901 F.2d at 594.

We next address the argument that Officer Cooper had

doubts about certain aspects of Ramirez’s story, and that

those doubts should have been expressed to the judge

issuing the warrant. Police officers have a duty to reveal

“serious doubts” about an informant’s testimony. See

United States v. Whitley, 249 F.3d 614, 621 (7th Cir. 2001)

(quoting Williams, 737 F.2d at 602 (7th Cir. 1984) (cita-

tions and internal quotation marks omitted)). Officer

Cooper acknowledged that certain parts of Ramirez’s state-

ment cast “some” doubt on certain issues, such as the

precise amount of marijuana Raul supposedly distributed

and whether Raul was involved in a gang. He also agreed

that Ramirez’s information regarding Raul’s alleged drug

source and drug proceeds lacked detail. However, there

is no evidence that Officer Cooper had serious doubts, nor

3

During questioning by police, Ramirez responded affirmatively

on two separate occasions when asked if this figure was accurate.

10 No. 02-1995

does the evidence suggest that Officer Cooper should

have entertained serious doubts in light of Ramirez’s

statement. An informant is not required to provide details

about every single aspect of an alleged drug conspiracy.

Morever, details like the identity of Raul’s alleged supplier

and the location of the alleged drug proceeds would not

have necessarily affected the probable cause finding.

McNeese, 901 F.2d at 595 (noting that in order for a party

to establish a Franks violation, there must be “a reason-

able probability” that a different outcome would have

resulted had omitted information been included in the

affidavit).

Finally, although the Molinas contend that Ramirez’s

desire to make a deal should have been reflected in the

warrant, the omission was not essential to the probable

cause determination. We do not suggest that an infor-

mant’s motive can never be a factor in assessing whether

probable cause exists. However, courts are aware that

informants are frequently facing charges and hoping for

deals. See United States v. Wold, 979 F.2d 632, 634-35 (8th

Cir. 1992). Here, Ramirez’s testimony was sufficiently

reliable that probable cause would have been found even

if the informant’s motive had been included. As the dis-

trict court noted, Ramirez’s “statements were against his

own penal interest as he also implicated himself in a long-

running and highly profitable drug conspiracy,” Ramirez’s

detailed testimony linking Raul to the drug conspiracy (for

example, Ramirez gave the names and locations of sev-

eral players in the alleged conspiracy, provided concrete

information regarding the amounts of cocaine and money

changing hands, and described the locations of the drugs

and drug ledgers) was based on first-hand observation,

and Officer Cooper independently corroborated some of

No. 02-1995 11

Ramirez’s statements.4 See Molina, 2002 WL 426035, at *4.

All of these points are strong indicia of reliability. See

Illinois v. Gates, 462 U.S. 213, 234 (1983) (“[E]ven if we

entertain some doubt as to an informant’s motives, his

explicit and detailed description of alleged wrongdoing,

along with a statement that the event was observed first-

hand, entitles his tip to greater weight than might other-

wise be the case.”); United States v. Jones, 208 F.3d 603,

609 (7th Cir. 2000); United States v. Leidner, 99 F.3d 1423,

1429-30 (7th Cir. 1996); United States v. Reddrick, 90 F.3d

1276, 1280 (7th Cir. 1996); see also Wold, 979 F.2d at 634-

35 (stating that “failure to inform the issuing officer of a

deal is not fatal to the validity of a warrant,” especially

when an informant’s testimony is at least “partly corrobo-

rated”) (citations and internal quotation marks omitted).

In short, none of the Molinas’ arguments negate the

simple fact that Ramirez gave critical information based

on first-hand knowledge linking Raul to a drug conspir-

acy, and provided detailed accounts about the conspir-

acy’s inner workings and major players. This information,

in conjunction with the field tests discussed below, was

4

This independent corroboration (specifically, the positive field

test results from the Molinas’ garbage) weakens the plaintiffs’

argument that if this court considered the problems with Villa’s

testimony while assessing the remaining portions of the affidavit,

it would find that the Molinas had satisfied the Franks test. The

Molinas rely on Whitley, in which we refused to “consider the

officers’ credibility regarding the preparation of [an] affidavit in

isolation,” where the officers had “been exposed as being less

than truthful in their testimony regarding searches incident to

an investigation.” See 249 F.3d at 624. However, in Whitley we

specifically noted that there was not sufficient corroboration

of key portions of the affidavit. Id. at 623-24. That is not the

case here. Additionally, while we earlier agreed that Villa’s

statements may raise issues of material fact, Officer Cooper has

not necessarily been exposed as “less than truthful.”

12 No. 02-1995

sufficient for a reasonable officer to believe that probable

cause had been established.

3. The field test

According to officers Cooper and Dail, burnt paper, burnt

foil, toothbrushes, and a toilet paper roll found in the

Molinas’ garbage tested positive for the probable presence

of cocaine. Officer Cooper claims that during the field test,

the officers took precautions to ensure accuracy, and they

showed the test results to their supervisor, Master Ser-

geant Kerns. These results corroborated Ramirez’s state-

ment that Raul was distributing drugs from his home.

The Molinas allege that the field test results are false

and the garbage items were never lab tested. They further

insist that because field tests conducted during the search

tested positive for illegal substances but post-search lab

tests came back negative, the field tests were highly

unreliable, and Officer Cooper should have discussed the

unreliability of the field tests in the search warrant affida-

vit. These arguments are meritless.

The officers had no duty to send the garbage items to

a lab before applying for a warrant. The potential unreli-

ability of the field tests was determined after the war-

rant was obtained, and the Molinas have presented no

evidence to show that Officer Cooper thought the field

tests were unreliable when he applied for the warrant.

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

(“[P]robable cause depends on information known to the

police at the time, not on how things turn out.”).

The field tests and Ramirez’s statements about Raul’s

drug involvement were enough for a reasonable officer

to believe that probable cause existed to apply for a

search warrant, so we affirm the district court’s grant of

summary judgment for the officers on this claim.

No. 02-1995 13

C. “Knock and Announce”

Under the Fourth Amendment, police officers are gener-

ally required to knock on the door and announce their

identity and purpose before forcibly entering a home to

execute a search warrant. See Richards v. Wisconsin, 520

U.S. 385, 387 (1997); Wilson v. Arkansas, 514 U.S. 927, 929

(1995). The Molinas claim that the search of their home

was unlawful because the officers violated this rule by

failing to knock and announce their presence. Alternatively,

the Molinas argue that even if they did knock and an-

nounce, the officers failed to allow a reasonable amount

of time to pass before their forcible entry. See United States

v. Espinoza, 256 F.3d 718, 723 (7th Cir. 2001) (imposing

such a requirement).

1. Failure to “knock and announce”

We first consider the Molinas’ argument that the offi-

cers failed to “knock and announce.” While we are mindful

that our job is not to resolve disputes as to material issues

of fact, see Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th

Cir. 2001), in this instance there is no real dispute. Jackie

claims that she awoke to “screaming and yelling” but

could not understand what was being said. Viewing her

testimony in the light most favorable to the Molinas, it

shows either that the screaming or yelling was actually

the sound of the officers knocking and calling out, or that

Jackie simply cannot say what the officers did before

she awoke. Either way, Jackie’s assertions do not create

a genuine dispute as to whether the officers “knocked and

announced” as Officer Simonton claimed. At best, her

allegations raise only a “metaphysical doubt as to the

material facts.” See Albiero v. City of Kankakee, 246 F.3d

927, 932 (7th Cir. 2001) (quoting Johnson v. Univ. of

Wisconsin-Eau Claire, 70 F.3d 469, 477 (7th Cir. 1995)

(internal quotation marks omitted)).

14 No. 02-1995

2. Failure to wait

As for the Molinas’ alternative argument that the po-

lice failed to wait a reasonable amount of time after an-

nouncing their presence to forcibly enter the house, we

are similarly unconvinced. Police officers’ compliance

with the “knock and announce” requirement is determined

on a case-by-case basis. See Richards, 520 U.S. at 392;

United States v. McGee, 280 F.3d 803, 806 (7th Cir. 2002).

In United States v. Jones, we found that a five to thir-

teen second wait after “knocking and announcing” did not

violate the Fourth Amendment where “the officers had

information that the defendant was a dangerous felon in

possession of a gun,” and an additional wait would have

given the defendant time to destroy drugs. See 208 F.3d

603, 610 (7th Cir. 2000). The facts in the instant case

are similar. The officers had information that Raul, a

suspected drug distributor, owned weapons and had a

violent criminal history. Although the duration is dis-

puted, the officers claim that five seconds passed after

their third and final knock, and that a total of twelve to

fifteen seconds passed between their first knock and forcible

entry.5 Under the circumstances, we find that this was a

reasonable interval. Even if it was not, the officers would

be entitled to qualified immunity. The plaintiffs have

not cited any cases which clearly establish that an inter-

val of this length was unconstitutional at the time that

they conducted the search. See Saucier, 533 U.S. at 201-

02. Therefore, we affirm the district court’s grant of sum-

mary judgment for the officers on the “knock and announce”

claim.

5

Even if this time frame is inaccurate as the plaintiffs contend,

the Molinas have not bolstered this argument with any evidence.

Just as Jackie’s testimony fails to establish a dispute as to

whether the officers “knocked and announced” at all, it fails to

establish a genuine dispute regarding the time frame of the

“knock and announce.”

No. 02-1995 15

D. Use of Flash Bang Devices

The Molinas also object to the officers’ use of flash bang

devices in their basement, claiming that such use was

unnecessary and resulted in unreasonable damage to

their bar cabinets, television speaker, and garage door.

However, the Molinas have failed to establish that the

officers’ actions were unreasonable.

When assessing whether a constitutional violation has

occurred, “[t]he Fourth Amendment inquiry is one of ‘ob-

jective reasonableness’ under the circumstances.” See

Graham v. Connor, 490 U.S. 386, 399 (1989); see also

Wallace by Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010,

1014-15 (7th Cir. 1995) (stating that “all Fourth Amend-

ment reasonableness inquiries must [retain] an objective

perspective”). Here, the officers had information that

Raul had a criminal record that included aggravated

assault, was at home, and had access to weapons. Thus, the

officers had ample reason to be concerned about their

personal safety. Moreover, flash bang devices were not

used in the presence of Jackie or the children, who were

secured in the living room, and no one was harmed by

them. Therefore, while we in no way suggest that use of

flash bang devices is appropriate in every case (or even

most cases6), we find that their use was reasonable un-

der the circumstances, and the Molinas did not suffer a

constitutional violation.7

6

Indeed, we have voiced reservations about the use of these

devices in recent cases, although we have not gone so far as to

find their use unconstitutional. See United States v. Folks, 236

F.3d 384, 388 (7th Cir. 2001); Jones, 214 F.3d at 837-38.

7

We note in passing that even if we agreed that a constitutional

right was violated when the officers used flash bang devices, the

right was not clearly established in July 1998 when the search

(continued...)

16 No. 02-1995

E. Damage to the Truck

The Molinas finally contend that the console and hood

of their truck sustained unnecessary damage during the

search. We first note that the Molinas have not pointed

to any evidence in the record that the alleged damage

was unreasonable. Additionally, plaintiffs do not claim to

have actually seen any of the seventeen officers involved

in the search damage the truck. Moreover, Jackie and

Raul acknowledge that their sons had access to the ga-

rage. Nevertheless, the Molinas assert that the circum-

stantial evidence—namely Officer Cooper’s admission that

he was inside the truck at one point (although he de-

nied damaging the hood)—is sufficient to raise a factual

dispute as to whether Officer Cooper damaged the truck.

While we agree with the Molinas that circumstan-

tial evidence can be compelling, like any other evidence

it depends on its strength. The facts in this case bear a

strong resemblance to those in Hessel v. O’Hearn, 977 F.2d

299 (7th Cir. 1992). In Hessel, summary judgment was

granted to fourteen officers when the plaintiffs admitted

that they could not identify which of the officers stole

various items from the plaintiffs’ home. Id. at 305. The

Molinas attempt to distinguish Hessel because the plaintiffs

in that case suffered from a complete inability to distin-

guish the wrongdoer, whereas here the plaintiffs assert

that Officer Cooper is the likely culprit. However, the

7

(...continued)

warrant was executed. At that time, few cases even cited the use

of such devices disapprovingly, and in any event those courts

found their use reasonable under the circumstances. See, e.g.,

United States v. Myers, 106 F.3d 936, 940 (10th Cir. 1997); United

States v. Kingsley, No. 97-40095-01-RDR, 1998 WL 295577, at *3-4

(D. Kan. May 21, 1998). Thus, even if we found their actions to

be unreasonable, the officers would be entitled to qualified im-

munity. Saucier, 533 U.S. at 201-02.

No. 02-1995 17

Molinas have not alleged a conspiracy of silence among

the officers (a move that might have strengthened their

argument that Hessel is inapplicable), and the evidence

linking Officer Cooper, one of seventeen officers who could

conceivably have damaged the truck, is simply too thin to

survive summary judgment. No jury could reasonably

infer from this evidence that Officer Cooper caused the

damage to the truck. Hessel is therefore fatal to the plain-

tiffs’ claim, and the district court’s grant of summary

judgment for the officers was proper.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of

the district court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-15-03