Jones, Mark D. v. Wilhelm, Ron

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 04-1261 & 04-1605

MARK D. JONES and

THERESA A. JONES,

Plaintiffs-Appellees,

Cross-Appellants,

v.

RON WILHELM,

Defendant-Appellant,

Cross-Appellee.

____________

Appeals from the United States District Court

for the Western District of Wisconsin.

No. 03-C-25—Barbara B. Crabb, Chief Judge.

____________

ARGUED SEPTEMBER 24, 2004—DECIDED OCTOBER 3, 2005

____________

Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,

Circuit Judges.

WILLIAMS, Circuit Judge. While executing a search

warrant, Detective Ron Wilhelm and his team of officers

mistakenly entered the apartment of Mark and Theresa

Jones. Mr. and Mrs. Jones sued Detective Wilhelm pursu-

ant to 42 U.S.C. § 1983 alleging a violation of their Fourth

Amendment right to be free of unreasonable searches and

seizures. In particular, the Joneses claimed that Wilhelm

failed to take reasonable steps to discern the proper target

2 Nos. 04-1261 & 04-1605

of the warrant before execution of the warrant (“the war-

rant claim”) and failed to give them sufficient time to

answer their door before entering (“the knock-and-announce

claim”).

On the knock-and-announce claim, the district court

denied Wilhelm’s motion for summary judgment. We affirm

the district court’s denial of summary judgment because the

alleged facts taken in a light most favorable to the Joneses

indicate a violation of their clearly established rights. On

the warrant claim, the district court granted summary

judgment in favor of Wilhelm on qualified immunity

grounds. We find, however, that Wilhelm violated the

Joneses’ clearly established rights where he (1) executed a

validly issued warrant he knew to be facially ambiguous;

and (2) circumvented the magistrate judge and resolved the

warrant’s ambiguity on his own. Therefore, we reverse the

district court’s grant of summary judgment in favor of

Wilhelm on qualified immunity grounds.

In addition, in evaluating the Joneses’ warrant claim, we

find that the pleadings, depositions, answers to interrogato-

ries, and admissions on file, together with any affidavits,

show that there are no genuine issues of fact regarding

Wilhelm’s deprivation of the Joneses’ rights as secured

by the Constitution or Wilhelm’s status as a person acting

under color of state law. Thus, we grant summary judgment

in favor of the Joneses on their warrant claim.

I. BACKGROUND

Mr. and Mrs. Jones live at 220 W. Burnett Avenue in

Grantsburg, Wisconsin. The building at 220 W. Burnett

Avenue contains two apartments on the lower level and two

on the upper level. The upstairs apartments are labeled

“#1” and “#2.” Apartment #1 is on the north side, and

apartment #2 is on the south side. At the time of the search

that led to this suit, the Joneses resided in apartment #1,

Nos. 04-1261 & 04-1605 3

and Jody Gruenwald-Anderson occupied apartment #2.

There are two entrances to 220 W. Burnett Avenue, one in

the front (west) and one in the back (east). Each entrance

offers a staircase leading to the second floor. Someone who

uses the front door and accompanying staircase faces east

both when entering the building and when reaching the

second floor. Conversely, parties using the rear door faces

west both when entering the building and upon alighting at

the top of the stairs.

Early in 2002 Wilhelm received a tip from Valerie

Kauffman, who lived on the first floor of 220 W. Burnett

Avenue, regarding drug activity in the building. Kauffman

alleged that some upstairs residents were involved in drugs,

but she did not specify which of the two upstairs apart-

ments they occupied. In support of her claim, Kauffman told

Wilhelm he should “just watch the [pedestrian] traffic, you

will see a lot of activity in this building.” In response,

Wilhelm performed surveillance on the building for approxi-

mately ten nights. During his surveillance, Wilhelm

observed visitors enter the building from both entrances.

Wilhelm could also see “shadows” moving in apartment #1,

but he could not see into apartment #2, as its windows were

covered with blankets.

The parties dispute what Wilhelm actually saw during his

surveillance. Wilhelm testified in his deposition that he saw

numerous people use the back door, while only a few used

the front door. Furthermore, he stated that every time

someone entered through the back door at night, he would

observe activity in apartment #1. He also acknowledged

that this activity may have been non-drug related. Mr.

Jones contends that Wilhelm could have made no such

observations, as only a neighbor for whom Jones provided

child care and the neighbor’s child ever used the back

door, which offered no working doorbells and was regularly

kept locked.

4 Nos. 04-1261 & 04-1605

Some time after Wilhelm’s surveillance, Detective Tracy

Finch received a tip from a confidential informant indicat-

ing that Jody Gruenwald-Anderson of 220 W. Burnett

Avenue was manufacturing methamphetamine. The inform-

ant described Gruenwald-Anderson’s apartment as being on

the second floor on the right. Detective Finch obtained a

warrant to search the apartment in question, but the

warrant did not list Gruenwald-Anderson’s name. Instead,

it instructed officers to search “the upstairs apartment on

the right” at 220 W. Burnett Avenue.

Finch then provided the warrant to Wilhelm for Wilhelm

to execute and gave him the name of the target; Wilhelm

would later recall it as either “Jody Gruenwald” or “Jody

Anderson.” Wilhelm then assembled a group of officers to

execute the warrant and met the officers at the Grantsburg

Village Police Department before driving to the apartment

building to execute the warrant. After leaving the police

department, but before arriving at the apartment building,

Wilhelm realized that the building described in the search

was the same building he had previously surveilled. Based

on his earlier surveillance, Wilhelm was aware there were

two staircases facing opposite directions in the building,

and, he realized that the warrant was unclear where it

directed the team to the “upstairs apartment on the right.”

Wilhelm, however, clarified the warrant himself by

reaching two conclusions. First, Wilhelm concluded that the

activity he had observed in apartment #1 which corre-

sponded to the pedestrian traffic at the back door at night

corroborated Kauffman’s allegation that there was a lot of

drug activity in the building. By Wilhelm’s logic, only the

alleged drug lab could have caused the increased nightly

traffic at the building’s back door, and because all of the

nightly traffic coincided with activity in apartment #1,

apartment #1 was the most likely location for the lab.

Second, Wilhelm reasoned that since most people used the

building’s rear entrance regardless of their intentions, the

Nos. 04-1261 & 04-1605 5

informant’s reference to an upstairs apartment “on the

right” probably meant on the right as viewed from the top

of the rear stairs. This conclusion also pointed Wilhelm

toward apartment #1, the Joneses’ home.

Armed with these assumptions, Wilhelm arrived at the

building to execute the warrant. Notwithstanding his

determination that the warrant was directed to the back

door, Wilhelm opted to enter 220 W. Burnett Avenue

through the front door. Just inside the front door were

doorbells with names and apartment numbers on them. It

is undisputed that Gruenwald-Anderson’s bell bore her

name and the number of her apartment at that time.

Wilhelm, however, did not read the labels on the door-

bells because he was certain that he had targeted the cor-

rect apartment.

In his deposition, Wilhelm testified that the team followed

standard operating procedure during the raid. After he

went in the front door, Wilhelm led his team to the first set

of stairs. Once at the top of the stairs, the team went to

apartment #1, which was on the left, but would have been

on the right if the team had used the back entrance and

stairs. On Wilhelm’s order, a member of the team, Deputy

Steven Sacharski, knocked, called out “police, search

warrant,” and kicked in the door. Each member of the team,

however, gives a different time sequence for these opera-

tions:

• According to Wilhelm, Sacharski knocked, waited

ten to fifteen seconds, announced, waited a few

more seconds, and then entered.

• Deputy Ryan Bybee testified that Sacharski

knocked and announced, waited five seconds, and

then entered.

• According to Officer Dan Wald, there was a

knock, a pause of two to three seconds, and then

an announcement. He could not remember how

6 Nos. 04-1261 & 04-1605

long the officers waited after announcing before

they entered.

• Sacharski himself testified that he knocked,

waited ten to fifteen seconds, announced, waited

“a couple seconds or so,” and then entered.

In summary, the officers’ statements indicate that

Sacharski (1) knocked, (2) waited between two to eighteen

seconds, (3) announced, (4) waited another two seconds, and

(5) entered.

In contrast, Mr. Jones testified in his deposition that after

hearing a knock at approximately 9:20 P.M. he immediately

got up and “stormed towards the door,” but only managed

to take eight steps before the police entered. As Jones

recalled the situation, the announcement started before the

police entered, but “by the time the word warrant came out,

the door flew open.” Jones gave the time between the start

of the announcement and the officers’ entry as “[m]ere

seconds,” responding affirmatively when asked if this could

mean three to five seconds.

Once inside, the officers pressed Mr. Jones to the ground

and handcuffed him. The officers also awakened Mrs. Jones,

who was asleep in bed in the other room, and handcuffed

her. Once Wilhelm saw Mrs. Jones, he recognized her and

realized he was in the wrong apartment. He ordered the

handcuffs removed, apologized to the Joneses, and led his

team across the hall, where they forcibly entered apartment

#2.

In the aftermath of the raid, the Joneses asserted multi-

ple § 1983 claims, two of which are before us. First, in their

warrant claim, they allege that Wilhelm failed to take

“basic and obvious steps” to ascertain the proper target of

the warrant before entering their apartment. Second, in

their knock-and-announce claim, they allege that Wilhelm

failed to wait sufficiently long after announcing his pres-

ence before forcibly entering their home. These actions, they

Nos. 04-1261 & 04-1605 7

contend, violated their Fourth Amendment rights.

Both parties moved for summary judgment on the

warrant claim. Only Wilhelm moved for summary judgment

on the knock-and-announce claim. The district court

granted summary judgment in favor of Wilhelm on the

warrant claim on qualified immunity grounds and denied

Wilhelm’s motion for summary judgment on the knock-

and-announce claim. Wilhelm appeals the district court’s

denial of his motion for summary judgment on the

knock-and-announce claim. The Joneses appeal both the

grant of summary judgment in favor of Wilhelm on the

warrant claim and the denial of their own motion for

summary judgment on the same claim.

II. ANALYSIS

A. Qualified Immunity

The doctrine of qualified immunity shields government

officials against suits arising out of their exercise of discre-

tionary functions “as long as their actions could reasonably

have been thought consistent with the rights they are

alleged to have violated.” Anderson v. Creighton, 483 U.S.

635, 638 (1987). In particular, this doctrine applies to police

officers executing a search warrant, who may claim quali-

fied immunity in suits challenging the constitutionality of

their actions. Jacobs v. City of Chicago, 215 F.3d 758, 767

(7th Cir. 2000).

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme

Court set out a two-part test for qualified immunity. First,

a court must decide whether the facts, when viewed in the

light most favorable to the plaintiff, indicate that the

officer’s conduct violated some constitutional right of the

plaintiff. 533 U.S. at 201. Second, if the answer to the

first question is “yes,” then the court must determine

whether the constitutional right violated was “clearly

8 Nos. 04-1261 & 04-1605

established” at the time of the alleged violation. Id. The

officer will enjoy qualified immunity unless the court

affirmatively answers both questions. Id.

Wilhelm urges us to append a third prong to the two-part

Saucier test, contending that “[e]ven if the Court finds that

there was clearly established law which was violated, the

immunity question should be decided based on whether

police officers acted reasonably under the circumstances

they faced.” (Appellant’s Reply Br. at 10.)

Saucier clearly states, however, that “[t]he relevant,

dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted.” Saucier, 533 U.S. at 202; accord Payne v.

Pauley, 337 F.3d 767, 775-76 (7th Cir. 2003). It goes

without saying that the reasonableness of an official’s

actions is not a factor in determining whether the facts as

alleged constitute a violation of constitutional rights.

Neither is the reasonableness of an official’s actions an

independent factor in determining whether a right is clearly

established, as an official is held to have violated a clearly

established right only where a reasonable officer would

have known the alleged actions to be illegal, if faced with

similar circumstances. Saucier, 533 U.S. at 202; Anderson,

483 U.S. at 640 (explaining that a particular right is clearly

established, even where no court has declared the defen-

dant’s precise alleged activity illegal, so long as pre-existing

law made the activity’s illegality “apparent,” with “[t]he

contours of the right . . . sufficiently clear that a reasonable

official would understand that what he is doing violates

that right.”); see also Siebert v. Severino, 256 F.3d 648, 654-

55 (7th Cir. 2001) (“A violation may be clearly established

if the violation is so obvious that a reasonable state actor

would know that what [he is] doing violates the Constitu-

tion, or if a closely analogous case establishes that the

conduct is unconstitutional.”).

Nos. 04-1261 & 04-1605 9

Thus, following Saucier, we reaffirm that the proper

standard for qualified immunity remains a two-part test

which first examines whether the defendant’s alleged

actions constitute a violation of constitutional rights, and

then determines whether the implicated right was clearly

established at the time. See, e.g., Kiddy-Brown v.

Blagojevich, 408 F.3d 346, 353 (7th Cir. 2005); Leaf v.

Shelnutt, 400 F.3d 1070, 1080 (7th Cir. 2005); Tun v.

Whitticker, 398 F.3d 899, 901-02 (7th Cir. 2005); Velez v.

Johnson, 395 F.3d 732, 735 (7th Cir. 2005); Board v.

Farnham, 394 F.3d 469, 476-77 (7th Cir. 2005).

In the alternative, Wilhelm asks that when we determine

whether it would have been clear to a reasonable officer

that Wilhelm’s actions violated the Joneses’ constitutional

rights, we impute to the hypothetical, reasonable officer

only Wilhelm’s actual knowledge, and not the knowledge he

ought reasonably to have amassed during the execution of

the warrant. Such an interpretation, however, would enable

state agents to trample on the constitutional rights of

citizens by maintaining willful ignorance of what reason-

able officers should have known, and we refuse to take such

a step. In determining whether a defendant’s alleged

actions violated a clearly established right, courts may

properly take into account any information the defendant

ought reasonably to have obtained. See Pounds v.

Griepenstroh, 970 F.2d 338, 340 (7th Cir. 1992).

B. The Warrant Claim

We review rulings on motions for summary judgment

de novo. Bell v. Duperrault, 367 F.3d 703, 707 (7th Cir.

2004). It is undisputed in this case that in 2002 the Joneses

had a right to be free from unreasonable searches and

seizures and had a right to be the subject of a warrant only

when the warrant was supported by probable cause and

particularly described the place and people to be searched.

10 Nos. 04-1261 & 04-1605

U.S. CONST. Amend. IV (“The right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause . . .

particularly describing the place to be searched, and the

persons or things to be seized.”). The focus of this appeal,

therefore, is whether the actions as alleged by the Joneses

constitute a violation of their clearly established rights.

In evaluating an alleged violation of the Warrant Clause

of the Fourth Amendment, it is helpful to distinguish

between the two distinct phases of a search warrant: the

issuance of the search warrant and the execution of the

search warrant. As to the issuance of a search warrant, the

Fourth Amendment requires that a warrant be supported

by probable cause and particularly describes the place to be

searched. Before an officer may undertake a search, the

Fourth Amendment “require[s] the judgment of a magis-

trate on the probable-cause issue and the issuance of a

warrant.” Chambers v. Mahoney, 399 U.S. 42, 51 (1970); see

also Illinois v. Gates, 462 U.S. 213, 239 (1983) (“Sufficient

information must be presented to the magistrate to allow

that official to determine probable cause; his action cannot

be a mere ratification of the bare conclusions of others.”).

While magistrates do not possess sole discretion to make

probable-cause determinations, “[o]nly in exigent circum-

stances will the judgment of the police as to probable cause

serve as a sufficient authorization for a search.” Id.

In addition, “[t]he Warrant Clause of the Fourth Amend-

ment categorically prohibits the issuance of any warrant

except one ‘particularly describing the place to be searched

and the persons or things to be seized.’ ” Maryland v.

Garrison, 480 U.S. 79, 84 (1987); Jacobs, 215 F.3d at 767.

“The uniformly applied rule is that a search conducted

pursuant to a warrant that fails to conform to the particu-

larity requirement of the Fourth Amendment is unconstitu-

Nos. 04-1261 & 04-1605 11

tional.” Massachusetts v. Sheppard, 468 U.S. 981, 988 n. 5

(1984). Absent exigent circumstances, nothing—neither the

determination of probable cause nor the confirmation that

a warrant is sufficiently particular—is meant to be left

to the discretion of police officers executing a warrant.

United States v. Brown, 832 F.2d 991, 996 (7th Cir. 1987)

(citing Stanford v. Texas, 379 U.S. 476, 485 (1965)).

Here, we find that the warrant was valid when it was

issued despite the lack of diligence displayed by the police

force in failing to ensure that Gruenwald-Anderson’s name

and apartment number appeared on the warrant and

despite the fact that the scope of the warrant turned out

to be ambiguous. See Garrison, 480 U.S. at 85-86 (find-

ing warrant valid when issued despite the fact that the

scope of the warrant turned out to be ambiguous); U.S. v.

White, 416 F.3d 634, 638 (7th Cir. 2005) (finding a search

warrant described with sufficient particularity the premises

to be searched where the police conducted a reasonable

investigation, which did not suggest that the house actually

contained more than one unit, notwithstanding that

ultimately the house targeted was not a single family

residence as described in the warrant but actually a

multi-unit, multi-purpose building).

Turning then to the execution of the warrant, we find that

Wilhelm’s conduct in executing the warrant violated the

Joneses’ clearly established Fourth Amendment rights. The

warrant here instructed officers to search “the upstairs

apartment on the right” at 220 W. Burnett Avenue. It is

undisputed that, upon being assigned to execute the search

warrant, Wilhelm recognized the address from his earlier

surveillance and knew immediately that the building

contained two staircases. (Appellant Opening Br. at 12-13;

Appellant Reply Br. at 3.) Based on this prior knowledge,

Wilhelm knew that if he took the back staircase, then the

“upstairs apartment on the right” would lead him to the

Joneses’ apartment, and, in the alternative, if he took the

12 Nos. 04-1261 & 04-1605

front staircase, then the warrant would lead him to

Gruenwald-Anderson’s apartment. Id. By his own admis-

sion, therefore, Wilhelm knew before he executed the

warrant that the phrase “upstairs apartment on the right”

would lead him to a different apartment depending on

which staircase taken. Where a warrant is open to

more than one interpretation, the warrant is ambiguous

and invalid on its face and, therefore, cannot be legally

executed by a person who knows the warrant to be ambigu-

ous. Garrison, 480 U.S. at 86-87.

We must emphasize that the Joneses’ clearly-established

rights were not violated because the warrant turned out

to be ambiguous. Rather, the Joneses’ rights were vio-

lated because Wilhelm knew the warrant did not particu-

larly describe the place to be searched based on his prior

surveillance of the building.1 Wilhelm recognized the

warrant as ambiguous before the execution of the warrant,

but failed to immediately stop execution and seek the

necessary clarification of a warrant in order to make certain

the warrant particularly described the place to be search as

1

The dissent acknowledges that Wilhelm was aware of the layout

of the building and allegations of illegal drug activity on its second

floor prior to executing the warrant. The dissent also acknowl-

edges that Wilhelm targeted “the Joneses’ apartment based on his

own observations of traffic in and out of the building followed by

activity in plaintiffs’ apartment.” Despite these acknowledgments,

the dissent concludes that “[f]rom Wilhelm’s perspective, the

warrant was not ambiguous.” If Wilhelm knew the layout of the

building, then he had to recognize that the warrant’s direction to

search the “upstairs apartment on the right” was ambiguous

immediately upon reading the warrant. In other words, to

acknowledge that Wilhelm used his beliefs to determine the target

of the warrant is to acknowledge that the warrant was ambiguous

on its face. Otherwise, if the warrant specifically targeted the

Joneses’ apartment, then Wilhelm would have no need to leverage

his personal observations.

Nos. 04-1261 & 04-1605 13

called for by the Fourth Amendment. Garrison, 480 U.S. at

87 (forbidding the execution of a search warrant a police

officer knows to be ambiguous).

In this situation, the Fourth Amendment prohibits

Wilhelm from applying his earlier surveillance and subse-

quent deductions to resolve the warrant’s ambiguity rather

than presenting those observations to a magistrate for

determination.2 It is undisputed that based on observations

Wilhelm made during his surveillance of 220 W. Burnett

Avenue, he concluded that Detective Finch’s informant was

more likely to have used the rear door and thus to have

described apartment #1, not apartment #2, as being “on the

right.” This determination of which apartment was more

likely to contain contraband, thereby meriting a constitu-

tionally acceptable search, constitutes an evaluation of

probable cause that the Fourth Amendment requires be left

to the magistrate absent exigent circumstances. Chambers,

399 U.S. at 51.

1. The good faith exception does not apply.

We recognize that an erroneous description in a warrant

does not necessarily invalidate the subsequent execution of

a warrant search. See, e.g., U.S. v. Stefonek, 179 F.3d 1030,

1033 (7th Cir. 1999) (finding that the failure of a search

2

The dissent allows Wilhelm the discretion to use his prior

surveillance in order to determine the proper target for the

execution of the warrant, concluding that Wilhelm had a good-

faith basis to target the Joneses’ apartment. Nothing in the

precedent of the Supreme Court or this circuit, however, affords

an officer any discretion to interpret a warrant. Clearly estab-

lished federal law states that, absent exigent circumstances,

nothing is meant to be left to the discretion of police officers

executing a warrant. Brown, 832 F.2d at 996 (citing Stanford v.

Texas, 379 U.S. 476, 485 (1965)).

14 Nos. 04-1261 & 04-1605

warrant to particularly describe things to be seized, in

violation of the Fourth Amendment, did not require sup-

pression of evidence seized where the search conformed to

the particular description contained in the affidavit). Even

if a warrant is ultimately found to be unsupported

by probable cause or lacking in particularity, searches

conducted pursuant to the warrant may be valid under the

good-faith exception set forth in United States v. Leon, 468

U.S. 897, 926 (1984). For a warrant search to qualify for the

good-faith exception, however, the officers conducting the

search must have manifested an objective good-faith belief

in the validity of the warrant. Leon, 468 U.S. at 926.

Execution of search warrants, therefore, should be exam-

ined in light of “the need to allow some latitude for honest

mistakes that are made by officers in [this] dangerous and

difficult process.” Garrison, 480 U.S. at 87.

Wilhelm had prior knowledge of the building’s layout

before executing the warrant. As a result, he does not

qualify for any good-faith exception. Where an officer

executing a warrant knows or should have known that a

warrant, which was valid when issued, now lacks the

necessary particularity, then that officer cannot legally

execute the warrant.3 Id. at 86. Furthermore, if an officer

obtains information while executing a warrant that puts

him on notice of a risk that he could be targeting the wrong

location, then the officer must terminate his search. Id. at

87; Jacobs, 215 F.3d at 769 (holding that while executing a

3

As we discussed, Wilhelm knew from his prior surveillance that

the warrant was not sufficiently particular to target the Joneses’

apartment, and, therefore, he could not lawfully execute the

warrant there. Yet the dissent reasons that it was Wilhelm’s prior

surveillance that provided him with a good-faith basis to target

the Joneses’ apartment. His prior surveillance, however, is the

precise reason he lacks good faith—Wilhelm knew from his prior

observations that the warrant on its face was ambiguous.

Nos. 04-1261 & 04-1605 15

warrant, “[a]t the moment the Defendant Officers discov-

ered the defect in the description of the place to be

searched, they were obligated to cease that search if they

could not determine which apartment was properly the

subject of the warrant.”).

In support of his contention that his actions in execut-

ing the warrant did not constitute a violation of the Joneses’

clearly established rights, Wilhelm cites the Fourth Cir-

cuit’s decision in United States v. Owens, 848 F.2d 462, 463

(4th Cir. 1988) for the proposition that a reasonable officer

may augment a warrant with his own personal knowledge

in order to resolve an ambiguity.

In Owens, officers acted upon a warrant authorizing them

to search an occupied apartment on the third floor of a

named building, only to discover that there were two

separate apartments on that floor. Owens, 848 F.2d at 465.

As one of the apartments was vacant, however, they

searched the other one, noting the affidavit’s description

of an occupied apartment. Id. at 463, 465. While officers

executing a warrant must generally suspend their search if

they discover information that renders the warrant ambigu-

ous, Garrison, 480 U.S. at 87, the Fourth Circuit upheld the

officers’ actions in Owens, as the affidavit supporting the

warrant clearly identified the apartment to be searched as

one that was occupied, and no other apartment fit that

description. Owens, 848 F.2d at 465.

In this case, Wilhelm knew before he began executing the

warrant that the warrant was ambiguous on its face. In

addition, there is no evidence in this case that the affidavit

in support of the warrant targeted the Joneses’ apartment.

Instead, the evidence establishes that the description given

in both the warrant and the affidavit fit the description

of two separate apartments. Therefore, Owens does not

apply to this case because the key facts in Owens were that

the affidavit supporting the warrant specifically targeted an

16 Nos. 04-1261 & 04-1605

occupied apartment, and no other apartment fit the descrip-

tion given in the affidavit.

Here, a reasonable officer possessing the knowledge

Wilhelm possessed would have discovered the fatal defect

in the warrant prior to arrival to the building. Even without

Wilhelm’s specialized knowledge, a reasonable officer would

have discovered the fatal defect in the warrant upon

entering the building and discovering two sets of staircases

facing opposite directions. In light of this, we cannot

conclude that the search was a valid execution of that

warrant as neither the warrant nor the affidavit in support

of the warrant targeted the Joneses’ apartment. See Jacobs,

215 F.3d at 769 (finding that, where the search of the

plaintiffs’ apartment occurred after it appeared from the

allegations in the complaint that a reasonable officer would

have discovered a fatal defect in the warrant, the search

was not a valid execution of that warrant). In order to

target the Joneses’ apartment, Wilhelm circumvented the

proper procedural safeguards and acted as his own magis-

trate to issue his own personal amended warrant by

applying knowledge he had gained before that night to

resolve the warrant’s ambiguity.

For all the reasons discussed, we find that the undisputed

facts of this case establish that Wilhelm’s actions violated

the Joneses’ clearly established rights because he (1)

executed a validly issued warrant he knew to be facially

ambiguous prior to the execution of the warrant; and (2)

circumvented the magistrate judge and resolved the war-

rant’s ambiguity based on information he should have

disclosed to the magistrate who issued the warrant. Since

Wilhelm’s undisputed actions represent a viola-

tion of clearly-established, constitutional rights, we find

that Wilhelm enjoys no qualified immunity as to the

Joneses’ warrant claim.

Nos. 04-1261 & 04-1605 17

2. Summary judgment on the warrant claim in favor

of the Joneses is appropriate.

Having determined that Wilhelm is not entitled to

qualified immunity, we now turn to the district court’s

denial of the Joneses’ motion for summary judgment on

their warrant claim. To state a claim for relief under 42

U.S.C. § 1983, the Joneses must allege: (1) they were

deprived of a right secured by the Constitution or laws

of the United States, and (2) the deprivation was visited

upon them by a person or persons acting under color of

state law. Kramer v. Village of North Fond du Lac, 384 F.3d

856, 861 (7th Cir. 2004) (citations omitted). As the second

element is undisputed, the question is whether the Joneses

have produced evidence such that a reasonable jury could

find that Wilhelm deprived them of a right secured by the

Constitution or federal law. In analyzing whether a ques-

tion of fact exists, we construe the evidence in the light

most favorable to the party opposing the motion. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The mere

existence of some factual dispute does not defeat a sum-

mary judgment motion, however; there must be a genuine

issue of material fact for the case to survive. Id. at 247-48.

Reviewing the facts in the light most favorable to Wil-

helm, we find that there are no genuine issues as to any

material fact and that the Joneses are entitled to a judg-

ment as a matter of law. Notwithstanding the disputed

issues of fact concerning both Wilhelm’s knowledge of 220

W. Burnett Avenue and his actions during the execution of

the flawed search warrant, Wilhelm’s actions prior to the

execution of the warrant are undisputed and provide a

sufficient basis to grant summary judgment.

Prior to the execution of the warrant, the key facts in this

case are: Wilhelm undertook surveillance and gained

knowledge of 220 W. Burnett Avenue independent from

the issuance of the search warrant; and, upon receipt of the

18 Nos. 04-1261 & 04-1605

search warrant to execute, Wilhelm recognized the address

and immediately realized the warrant to be ambiguous on

its face. Both of these facts are undisputed in the record.

Wilhelm’s decision then to proceed with the execution of

a search warrant he knew to be ambiguous violated the

Joneses’ Fourth Amendment rights. Garrison, 480 U.S. at

89 (holding that officers cannot legally execute a warrant

they know to be ambiguous). Furthermore, where Wilhelm

made his own probable cause determination to resolve

the warrant’s ambiguity, Wilhelm also deprived the Joneses

of a right secured by the Constitution. Chambers, 399 U.S.

at 51. It follows, therefore, that the factual disputes, argued

at length by both sides, regarding the full extent of Wil-

helm’s knowledge as a result of his surveillance and

regarding the reasonableness of Wilhelm’s actions while

executing the search warrant are not material.

The pleadings, depositions, answers to interrogatories,

and admissions on file, together with any affidavits, show

that there is no genuine issue of fact regarding Wilhelm’s

deprivation of the Joneses’ rights as secured by the Consti-

tution or Wilhelm’s status as a person acting under color of

state law. We, therefore, grant summary judgment on the

warrant claim in favor of the Joneses.

C. The Knock-and-Announce Claim

Wilhelm appeals the district court’s denial of his motion

for summary judgment on the Joneses’ knock-and-announce

claim, claiming that he is entitled to summary judgment on

qualified immunity grounds. In general, 28 U.S.C. § 1291

does not confer jurisdiction to review a district court’s

denial of summary judgment. Pac. Union Conf. of Seventh-

Day Adventists v. Marshall, 434 U.S. 1305, 1306 (1977).

However, an exception to this rule comes into play when a

movant requests summary judgment based on qualified

Nos. 04-1261 & 04-1605 19

immunity. As qualified immunity protects officers not only

against liability but also against the requirement to answer

claims in court, such immunity “is effectively lost if a case

is erroneously permitted to go to trial.” Mitchell v. Forsyth,

472 U.S. 511, 526 (1985). A motion for summary judgment,

therefore, represents a defendant’s final opportunity to

secure the full benefit of qualified immunity, and we may,

therefore, review its denial. Id. at 530. In reviewing the

district court’s decision to deny Wilhelm summary judg-

ment, however, we may not disturb that court’s determina-

tion that particular factual issues are in dispute. See

Johnson v. Jones, 515 U.S. 304, 313 (1995).

It is undisputed in this case that in 2002 “the Fourth

Amendment’s proscription of unreasonable searches and

seizures incorporated the requirement that law enforcement

officers entering a dwelling with a search warrant must

knock on the door and announce their identity and inten-

tion before attempting forcible entry.” United States v.

Espinoza, 256 F.3d 718, 723 (7th Cir. 2001). After knocking

and announcing, officers may enter if the residents refuse

to admit them, 18 U.S.C. § 3109 (2005) (“[An] officer may

break open any outer or inner door or window of a house .

. . to execute a search warrant, if, after notice of his author-

ity and purpose, he is refused admittance . . . .”), and

officers may also infer refusal from circumstantial evidence.

United States v. Jones, 208 F.3d 603, 610 (7th Cir. 2000).

This knock-and-announce requirement serves to protect

residents’ ability to comply with the law by peaceably

permitting officers to enter their dwelling, to avoid the

destruction of property that can accompany forcible entry,

and to prepare themselves for entry by law enforcement

officers by, for example, pulling on clothes or getting out of

bed. Espinoza, 256 F.3d at 723.

Certain exigent circumstances, however, can excuse

an entry that would otherwise violate § 3109. United States

v. Soria, 965 F.2d 436, 439 (7th Cir. 1992). Examples of

20 Nos. 04-1261 & 04-1605

exigent circumstances include a particularized risk to the

officers executing a warrant, United States v. Singer, 943

F.2d 758, 762 (7th Cir. 1991), and the risk that occupants

will destroy evidence while officers wait outside, United

States v. Barrientos, 758 F.2d 1152, 1159 (7th Cir. 1985).

However, the mere fact that officers are conducting a drug

raid does not, without more, imply the presence of either of

these exigent circumstances. Richards v. Wisconsin, 520

U.S. 385, 394 (1997) (acknowledging that the execution of

a search warrant on a suspected drug operation is inher-

ently dangerous, but striking down a per se rule excluding

drug raids from the knock-and-announce requirement).

Still, even absent a clear exigent circumstance, silence in

response to a knock and announcement at a drug raid can

support an inference of an emergent exigent circumstance,

such as an effort to destroy evidence. See United States v.

Markling, 7 F.3d 1309, 1318 (7th Cir. 1993) (approving a

seven-second pause between announcement and entry when

the resident failed to respond and the police had received a

specific tip that he was likely to flush his cocaine if he

heard officers approaching).

Thus, consistent with the Fourth Amendment’s proscrip-

tions, officers executing a search warrant on a suspected

drug operation have a choice: the officers may enter a

dwelling as soon as they reasonably infer either that the

occupants intend to refuse them entry or that the occupants

will destroy evidence if they wait longer. See United States

v. Banks, 540 U.S. 31, 39-40 (2003). The time officers must

wait after announcing before they may infer either a refusal

to allow entry or a hazard to evidence must be determined

by what is reasonable given the facts of the particular case.

Jones, 208 F.3d at 610.

In their knock-and-announce claim, the Joneses allege

that Wilhelm and his team violated their Fourth Amend-

ment rights by failing to wait a reasonable time after

knocking and announcing their identity before kicking in

Nos. 04-1261 & 04-1605 21

their door. The evidence in this case, taken in the light most

favorable to the Joneses, establishes that Wilhelm and his

team waited only two seconds after they knocked before

they kicked in the Joneses’ door, with the announcement of

their identity and intention coming somewhere within those

two seconds. There is no evidence in this case establishing

that Wilhelm reasonably inferred that the occupants were

likely to destroy the suspected methamphetamine lab

within two seconds. Cf. United States v. Spinelli, 848 F.2d

26, 30 (2d Cir. 1988) (excusing officers’ rapid entry based on

their justifiable fear that the target of the warrant would

attempt to ignite a methamphetamine lab). Likewise, a two-

second period of silence in response to a nighttime knock

cannot on its own support a reasonable inference that the

residents intended to refuse to admit the officers. Wilhelm

raises three main arguments in support of his qualified

immunity claim, which we shall address in turn. First, he

asserts that the alleged knock-and-announce violation

should be excused on the basis of exigent circumstances

inherent in executing a search warrant at night on a

suspected drug operation. The exigent circumstance

exception is not a mere rule of pleading but a considered

policy serving to maximize officers’ safety and effectiveness

in exceptional situations. It is for the officers on the scene,

not their lawyers after the fact, to find exigent circum-

stances. Here, nothing in the warrant suggested or pre-

dicted a particular risk of violence or destruction of evi-

dence. Indeed, Detective Finch stated in deposition testi-

mony that the law enforcement agencies of Burnett County

would normally issue no-knock warrants “if there’s a

possibility of weapons in the residence or someone has an

extremely violent past or if there is a good possibility of

destruction of evidence in a short period of time” (Finch

Dep. 14), and the magistrate in this case issued no such

warrant. Further, just as the warrant gave the officers no

reason to anticipate exigent circumstances, the brief period

they waited before kicking in the door does not support a

22 Nos. 04-1261 & 04-1605

reasonable inference that exigent circumstances were

developing contemporaneously. Finally, the deposition

testimony of the officers involved belies Wilhelm’s argu-

ment, as the officers testified that they followed standard

operating procedure during the raid, with no indication of

any exigent circumstance. Viewing the facts in the light

favoring the Joneses, we find no evidence that Wilhelm

reasonably perceived any exigent circumstances either

before or during the raid.

In his second argument, Wilhelm urges us to follow

Molina v. Cooper, 325 F.3d 963 (7th Cir. 2003), where

we held that an officer’s forcible entry during a warrant

search complied with the knock-and-announce rule. Molina,

325 F.3d at 972. Wilhelm’s reliance on Molina, however, is

misplaced. In Molina, the target of the warrant had a

criminal history, id. at 966 n.1, unlike the targets of Wil-

helm’s search, and the warrant for Molina’s house alleged

that Molina kept a stash of weapons and maintained an

association with a gang. Id. Based on these facts, the police

in Molina anticipated a “high risk” raid and took special

precautions when executing the warrant. Id. at 966. When

they reached Molina’s home, they knocked and called out

three successive times, waited an additional five seconds,

and then burst in. Id. at 967. Viewed in the light most

favorable to the Joneses, the facts of this case indicate that

Wilhelm waited less time after announcing his presence

before forcibly entering than did the officers in Molina,

despite the fact that he had less reason to anticipate

trouble. Therefore, Molina does not control here.4

4

In the alternative, Wilhelm argues that the very existence of a

case such as Molina, which refuses to set a bright-line test for

knock-and-announce timing, refutes the proposition that the right

he allegedly violated was clearly established. This argument

misstates the law. A rule need not be set out in bright-line terms

(continued...)

Nos. 04-1261 & 04-1605 23

Third, Wilhelm argues that his premature entry was of no

consequence because if Mr. Jones had not let the officers in,

then they would have been able to infer a refusal to admit

them, and everything would have proceeded the same way.

If, in the alternative, Jones had indeed opened the door for

the officers, then they still would have handcuffed him and

his wife and pressed them to the floor until they could

determine that the apartment was secure. So, according to

Wilhelm, his alleged violation of the knock-and-announce

rule did not cause the Joneses any incremental trauma.

Wilhelm’s argument is wholly unrelated to whether he is

entitled to qualified immunity. Rather, if anything, his

argument goes to damages. A forcible entry that violates

the knock-and-announce rule infringes upon a clearly-

established, constitutional right regardless of any destruc-

tion of property or infliction of emotional distress. The

officers effecting such an entry cannot recapture their lost

immunity by attacking the magnitude of the injury. Such

arguments are properly reserved for trial, not summary

judgment.

We find, therefore, that the district court properly denied

Wilhelm’s motion for summary judgment on the knock-and-

announce claim as the alleged facts taken in a light most

favorable to the Joneses indicate a violation of a clearly

established right.

III. CONCLUSION

4

(...continued)

to provide reasonable officers enough information to know what

is and is not legal in a given situation. As long as

the unlawfulness is “apparent” in light of pre-existing law, the

plaintiffs will have met their burden with regard to clear estab-

lishment. Hope v. Pelzer, 536 U.S. 730, 739 (2002).

24 Nos. 04-1261 & 04-1605

For all the foregoing reasons, we REVERSE the district

court’s grant of summary judgment in favor of Wilhelm on

the Joneses’ warrant claim, GRANT summary judgment in

favor of the Joneses on their warrant claim, AFFIRM the

district court’s denial of summary judgment on the Joneses’

knock-and-announce claim, and REMAND for further pro-

ceedings.

FLAUM, Chief Judge, concurring in part and dissenting in

part. I agree with the majority’s decision to affirm the

district court’s denial of summary judgment on the knock-

and-announce claim. Considering the evidence in the light

most favorable to plaintiffs, the officers may not have

waited a requisite amount of time before breaking down the

Joneses’ door. Under Officer Wilhelm’s version of events,

however, the time between the knock and announcement

and the officers’ entry would have been sufficient to infer

that plaintiffs had refused to allow the police to enter.

Because there remains a substantial factual dispute about

the critical issue of timing, I agree that plaintiffs should be

permitted to go to trial on this claim.

I respectfully disagree, however, with the majority’s

decision to grant summary judgment to plaintiffs on the

warrant claim. While the police work in this case was not

exemplary, I do not believe that Officer Wilhelm was on

notice that his execution of the warrant was unlawful such

that he should be stripped of qualified immunity. See

Saucier v. Katz, 533 U.S. 194, 202 (2001) (“The relevant,

dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable

Nos. 04-1261 & 04-1605 25

officer that his conduct was unlawful in the situation he

confronted.”) (emphasis added).

Although the warrant would not have told a reasonable

officer unfamiliar with the building which apartment it

referred to, Officer Wilhelm was aware of the layout of the

building and the allegations of illegal drug activity on its

second floor. From Wilhelm’s perspective, the warrant

was not ambiguous. I cannot join, therefore, the major-

ity’s conclusion that Wilhelm knew prior to entering the

Joneses’ apartment that the warrant was invalid because it

was open to more than one interpretation. Even though

Wilhelm turned out to be mistaken in his belief that the

warrant targeted plaintiffs’ apartment, in my judgment,

this mistake was not so unreasonable as to strip him of

qualified immunity. See Saucier, 533 U.S. at 202 (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986) (“qualified

immunity protects ‘all but the plainly incompetent or those

who knowingly violate the law’ ”)); Anderson v. Creighton,

483 U.S. 635, 641 (1987) (officer should not be stripped of

qualified immunity where he conducted a search based on

the erroneous belief that a bank robbery suspect was in

plaintiff’s home); Maryland v. Garrison, 480 U.S. 79, 87

(1987) (“The [Supreme] Court has recognized the need to

allow some latitude for honest mistakes that are made

by officers in the dangerous and difficult process of mak-

ing arrests and executing search warrants.”).

Wilhelm did not choose to search plaintiffs’ apartment at

random or “maintain willful ignorance” of which apartment

contained a methamphetamine lab. Rather, his belief that

the warrant referred to the Joneses’ apartment was based

on his own observations of traffic in and out of the building

followed by activity in plaintiffs’ apartment. Wilhelm

believed in good faith that the warrant referred to the

Joneses’ apartment. Only after he entered that apartment

did Wilhelm understand that the warrant was defective.

26 Nos. 04-1261 & 04-1605

It is undisputed that, once an officer discovers a defect in

the description of the place to be searched, he is obligated

to cease the search if he cannot determine which precise

location is the proper subject of the warrant. See Jacobs v.

City of Chicago, 215 F.3d 758, 769 (7th Cir. 2000). Wilhelm

did just that. The facts of this case stand in marked con-

trast to those in Jacobs. In that case, the police officers had

obtained a warrant to search a single-family residence. Id.

at 763-64. When they arrived, the officers discovered that

the address listed on the warrant was a multi-unit apart-

ment building, which clearly should have alerted them that

their search warrant was defective. Id. at 769. Despite there

being “no indication that the officers were certain that

plaintiffs’ apartment was the proper subject of the search,”

the officers proceeded to search each of the apartments,

entering the plaintiff’s apartment only after they did not

find what they were looking for in the first unit they chose

to search. Id. at 771. This Court found that the execution of

the search warrant was unreasonable, and that Supreme

Court and Seventh Circuit precedent clearly established

that a random search of apartments in a multi-unit build-

ing violates the Fourth Amendment. Id. The Court there-

fore held that the officers were not entitled to qualified

immunity. Id. Unlike the officers in Jacobs, Officer Wilhelm

did not conduct a “fishing expedition” or randomly search

all the apartments in the building until he found the

methamphetamine lab. Rather, he acted on his belief, albeit

erroneous, that the warrant specifically targeted plaintiffs’

apartment. As soon as he realized he was in the wrong

apartment, he did what he was required to

do—immediately call off the search and exit the apartment.

Under these circumstances, it is my view that it would

not have been clear to a reasonable officer in Wilhelm’s

position that his entry into the Joneses’ apartment violated

plaintiffs’ constitutional rights. I would hold that defendant

was entitled to qualified immunity and affirm the district

Nos. 04-1261 & 04-1605 27

court’s entry of summary judgment in favor of defendant

with respect to the warrant claim.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-3-05