Jo Whitlock v. Shawn Brown

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2800

JO W HITLOCK and JESSE W HITLOCK,

Plaintiffs-Appellants,

v.

S HAWN A. B ROWN, individually as an Officer

for the Indiana Department of Natural Resources,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division at Lafayette.

No. 4:07-CV-004—Allen Sharp, Judge.

A RGUED F EBRUARY 9, 2009—D ECIDED F EBRUARY 24, 2010

Before P OSNER and S YKES, Circuit Judges, and D OW,

District Judge.Œ

S YKES, Circuit Judge. Jo and Jesse Whitlock were

camping at the Indiana Dunes State Park and found

Œ

The Honorable Robert M. Dow, Jr., United States District

Judge for the Northern District of Illinois, sitting by designation.

2 No. 08-2800

several bags and other items of property that looked as if

they had been left behind at another campsite. They put

the items in their truck, intending to turn them in to

the park office. They then left the campground to run

errands and forgot the bags were in their truck. By the

time they returned a few hours later, the owner of the

bags had reported them stolen. When the Whitlocks

went to the park office to turn in the property, they

were accused of theft.

Officer Shawn Brown of the Indiana Department of

Natural Resources (“DNR”) interviewed the couple. They

told him they had picked up the property intending to

turn it in at the park office but simply forgot. Jo Whitlock

added that she decided to take the unattended bags

because she was afraid “some corrupt DNR employee”

would steal the absent camper’s belongings. This com-

ment was gratuitous—and foolish, too, under the cir-

cumstances. Brown thought there was probable cause

for a conversion charge and applied for an arrest war-

rant. The Whitlocks were charged with conversion

and the warrant was issued. They were arrested and

spent four days in jail before being released on bond.

The charges against them were later dropped.

The Whitlocks sued Brown, claiming he violated their

Fourth Amendment rights by omitting exculpatory facts

from his warrant application. The district court entered

summary judgment for the officer, holding that he

had violated the Whitlocks’ rights but was neverthe-

less entitled to qualified immunity because a reasonable

officer would have believed there was probable cause

No. 08-2800 3

to arrest the couple for conversion. The Whitlocks ap-

pealed.

We affirm. The district court was right to apply

qualified immunity, but its analysis took a wrong turn.

The precise constitutional question in this case is not

whether there was probable cause for the arrest but

whether Brown intentionally or recklessly withheld

material information from his warrant application. As

such, the proper focus of the qualified-immunity in-

quiry is whether it would have been clear to a rea-

sonable officer that the information allegedly omitted

was material to the probable-cause determination.

Under Pearson v. Callahan, 129 S. Ct. 808 (2009), we are

permitted to skip directly to the second question, and we

do so here. Although it is clearly established Fourth

Amendment law that an officer may not intentionally or

recklessly withhold material information from a war-

rant application, it is not clear under Indiana law that

the information Brown allegedly withheld was material

to the probable-cause determination for a charge of crimi-

nal conversion. Brown is therefore entitled to qualified

immunity.

I. Background

Jo and Jesse Whitlock and their daughter went camping

at the Indiana Dunes State Park during the July Fourth

holiday week in 2005. On the morning of July 8, they

were scavenging for firewood and came across several

bags and other items of property at an apparently deserted

campsite. They asked Dianne Miranda, a neighboring

4 No. 08-2800

camper, whether anyone was using the site; she said she

had not seen anyone there all morning. The Whitlocks

picked up the bags and other items, put them in their

truck, and told Miranda they would turn the property in

to park authorities. (The park brochure instructed

campers to report lost or found articles to the park office.)

They then got into their truck to go shopping at an area

mall. On their way out of the park, Jo Whitlock got into

an argument with her daughter and forgot about the

bags. The Whitlocks realized their mistake when they

arrived at the mall but decided to finish their shopping

rather than return to the park immediately. Several hours

later, the Whitlocks returned to the park and went

directly to their campsite. Jo Whitlock searched the bags

and found a wallet containing Neil Kohlhoff’s driver’s

license. She called “information” to get Kohlhoff’s phone

number, left a voicemail letting him know they were

taking his bags to the park office, and provided her

name and phone number so Kohlhoff could call her.

While the Whitlocks were shopping, however, Kohlhoff

had returned to his campsite, found his bags missing,

and reported them stolen. Park Security Officer Victor

Santiago began an investigation. He spoke to Miranda,

who related her earlier conversation with the Whitlocks.

When the Whitlocks finally turned the bags in at the

park office, the attendant on duty accused them of theft.

Officer Santiago interviewed Jo Whitlock; she explained

why they had picked up the bags and why they did not

immediately return them to the park office. DNR Conser-

vation Officer Shawn Brown soon arrived and took over

the investigation. Brown asked Jo Whitlock to repeat

No. 08-2800 5

her story several times. She explained that she forgot

about the bags because she was arguing with her

daughter as the family left the park to go to the mall. She

also told the officer that she decided to take possession

of the bags because she was afraid that “some corrupt

DNR employee” would steal them and felt she had to

“protect them from corrupt DNR employees.” After

taking the Whitlocks’ statements, Brown called Kohlhoff

to verify that he had received a voicemail from Jo

Whitlock and also confirmed that all of Kohlhoff’s be-

longings were returned.

Two days later, Brown prepared a case report describing

the incident. The report contained the details of his investi-

gation but did not include Jo Whitlock’s explanation

for why she and her husband forgot to stop at the park

office on their way to the mall. Brown also filled out a

standard form “Affidavit for Probable Cause” asserting

that there was probable cause to charge the Whitlocks

with criminal conversion. The probable-cause affidavit was

quite sparse. Beyond identifying the Whitlocks, Kohlhoff,

and the date and time of the offense, the affidavit stated

only that the Whitlocks had committed a criminal conver-

sion by taking Kohlhoff’s property without permission

and “keeping such property for several hours, causing

time and monetary loss.” Brown sent his affidavit to the

Porter County prosecutor’s office seeking a warrant for

the Whitlocks’ arrest. He testified in deposition that he

also attached his more detailed case report and sent that

to the prosecutor as well. This is a point of contention

between the parties, however; the Whitlocks maintain

that Brown withheld the case report from the prosecutor.

6 No. 08-2800

The Whitlocks were charged with conversion in viola-

tion of § 35-43-4-3 of the Indiana Code and an arrest war-

rant was issued. About a month later, they were pulled

over for a license-plate violation and arrested on the

conversion warrant. They spent four days in jail before

being released on bond. The Porter County prosecutor

quickly had a change of heart and dropped the charges.

Due to file-storage constraints, the prosecutor’s file

was destroyed sometime in 2006.

The Whitlocks sued Brown under 42 U.S.C. § 1983

alleging a violation of their Fourth and Fourteenth Amend-

ment rights. More specifically, they claimed Brown in-

tentionally withheld exculpatory information from his

warrant application. The parties filed cross-motions for

summary judgment, and the district court entered judg-

ment in Brown’s favor. The judge held that Brown

violated the Whitlocks’ Fourth Amendment rights by

withholding his case report from the prosecutor. The

judge concluded, however, that the officer was entitled

to qualified immunity because “a reasonable officer

could have believed that there existed probable cause to

arrest the Whitlocks for [c]onversion.” The Whitlocks

appealed.

II. Discussion

The Whitlocks claim that Brown violated their

Fourth Amendment rights by intentionally or recklessly

withholding exculpatory facts that would have influenced

the warrant-issuing judge’s probable-cause finding. See

Franks v. Delaware, 438 U.S. 154 (1978). Brown disputes

No. 08-2800 7

this and also argues he is entitled to qualified immunity.

Qualified immunity protects police officers from suit to

the extent that their actions “could reasonably have been

thought consistent with the rights they are alleged to

have violated.” Anderson v. Creighton, 483 U.S. 635, 638-39

(1987). Deciding a claim of qualified immunity gen-

erally involves two inquiries: (1) has the plaintiff alleged

facts that, if proved, would establish a constitutional

violation; and (2) would a reasonable officer have

known his actions were unconstitutional in light of

clearly established law? See, e.g., Saucier v. Katz, 533 U.S.

194 (2001). Under Saucier these questions had to be con-

sidered sequentially, but Pearson has relaxed that proto-

col. 129 S. Ct. at 818 (“The judges of the district courts

and the courts of appeals should be permitted to exercise

their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be

addressed first in light of the circumstances . . . .”). We are

now permitted to sidestep the constitutional question

and move directly to the question whether the law was

clearly established at the time of the alleged violation.

Id. We find it appropriate to do so here, but will begin

by sketching the contours of the alleged constitutional

violation.

Although a plaintiff generally cannot base a Fourth

Amendment claim on an arrest made pursuant to a valid

warrant, in this case the Whitlocks have challenged the

truthfulness of the information relied on to establish

probable cause for the issuance of the warrant. See Franks,

438 U.S. at 171. Although we presume the validity of a

warrant and the information offered to support it, this

presumption is premised on an “assumption . . . that there

8 No. 08-2800

will be a truthful showing” of probable cause. Id. at 164-65

(emphasis in original). Accordingly, the presumption

may give way on a showing that the officer who sought

the warrant “knowingly or intentionally 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 officer[’s] determination[] that

probable cause existed for the arrest[].” Beauchamp v. City

of Noblesville, Ind., 320 F.3d 733, 742-43 (7th Cir. 2003)

(citing Franks, 438 U.S. at 155-56). The presumption may

also be overcome by evidence showing that the officer

intentionally or recklessly withheld material facts from

the warrant-issuing judge. See United States v. Sims, 551

F.3d 640, 645 (7th Cir. 2008) (citing United States v. Williams,

737 F.2d 594, 604 (7th Cir. 1984) (“[T]he law allows a

challenge . . . on the ground that material facts were

omitted and that the omission was made intentionally

or with reckless disregard for the truth.”)).

The Whitlocks’ claim hinges on omissions, not affirma-

tive false statements. They maintain that Brown inten-

tionally or recklessly withheld material exculpatory

information (his case report) from the information he

submitted to the prosecutor for the warrant application.

The materiality of an omitted or misrepresented fact

depends on its relative importance to the evaluation

of probable cause; an omitted fact is material if its inclu-

sion would have negated probable cause. See, e.g.,

Williams, 737 F.2d at 604 (“[T]he omitted fact must be

material—that is, if the fact were included, the affidavit

would not support a finding of probable cause.”). One

way of approaching the materiality question is to ask

No. 08-2800 9

“whether a hypothetical affidavit that included the

omitted material would still establish probable cause.”

United States v. Robinson, 546 F.3d 884, 888 (7th Cir. 2008)

(citing United States v. Harris, 464 F.3d 733, 737 (7th Cir.

2006)). In making this determination, we keep in mind

that probable cause is a common-sense inquiry

requiring only a probability of criminal activity; it exists

whenever an officer or a court has enough information to

warrant a prudent person to believe criminal conduct

has occurred. See, e.g., Illinois v. Gates, 462 U.S. 213, 244

n.13 (1983).

Before we address materiality, however, there is a

threshold dispute about what information Brown sent

to the prosecutor in the first place. Brown testified in

his deposition that he forwarded both his bare-bones

probable-cause affidavit and his more detailed case

report to the prosecutor’s office. The Whitlocks con-

tend that Brown forwarded only the affidavit and in-

tentionally withheld the case report. The difference be-

tween the two versions is significant to the materiality

question. The case report described the underlying in-

vestigation in detail. It included the fact that the

Whitlocks had returned Kohlhoff’s belongings intact

and the fact that the Whitlocks had left Kohlhoff a phone

message letting him know where he could retrieve his

property. The only information missing from the report

was the Whitlocks’ explanation for why they did not

immediately turn in the bags to the park office on their

way out of the park. The affidavit, in contrast, was bereft

of facts supporting probable cause; it merely recited the

elements of the offense and provided basic identifying

10 No. 08-2800

information about the suspects and the victim. If only

the affidavit was submitted to the warrant-issuing

judge, we doubt that probable cause could have been

established.

The district court concluded that the summary-

judgment record supported the Whitlocks’ contention

that Brown did not submit his case report to the prosecu-

tor’s office. The judge noted first that the Porter County

court file did not contain a copy of Brown’s report and

that the prosecutor’s file had been destroyed. The judge

then rejected Brown’s deposition testimony as “self-serving

statements [that] are not sufficient to carry his evidentiary

burden.” This was error. “Self-serving” deposition testi-

mony may satisfy a party’s evidentiary burden on sum-

mary judgment. See Payne v. Pauley, 337 F.3d 767, 772

(7th Cir. 2003). Payne explained that the sufficiency of a

“self-serving” statement depends on whether the state-

ment is based on personal knowledge and whether it is

grounded in observation as opposed to mere specula-

tion. Brown’s testimony that he provided his case report

to the prosecutor easily passes this test. He was not

speculating and his testimony was based on his

personal knowledge.

The Whitlocks, on the other hand, are unable to refute

Brown’s testimony on this point. First, they affirmatively

alleged in their complaint that Brown sent his case

report to the prosecutor: “Defendant Shawn Brown

completed a supplemental case report which he

attached to a probable cause affidavit . . . .” The Whitlocks

never amended the complaint; indeed, it was not until

No. 08-2800 11

their motion for summary judgment that they first sug-

gested that Brown had not attached the report to the

probable-cause affidavit. We need not decide whether

the Whitlocks should be bound by the contrary allegation

in their complaint. See Murray v. United States, 73 F.3d

1448, 1455 (7th Cir. 1996) (“A judicial admission trumps

evidence. This is the basis of the principle that a plaintiff

can plead himself out of court.” (internal citation omit-

ted)); Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir. 1995).

There is no evidence that Brown withheld his case report

from the prosecutor; the Whitlocks’ argument is based

entirely on inference. That is, they suggest that we

infer, as the district court apparently did, that Brown

withheld his case report from the prosecutor because

there was no copy of it in the court file.

Under the circumstances here, this inference is unrea-

sonable. Prosecutors—not police officers—are responsible

for submitting documentary evidence to the court, and

this ordinarily occurs during the course of a motion

hearing or trial. The charges against the Whitlocks were

dropped early on in the case, so there was no reason for

the prosecutor to file Brown’s case report with the

court. For what it’s worth, we note as well that when a

copy of the case report was marked as an exhibit during

Brown’s deposition, the Whitlocks’ counsel stated for

the record that he had gotten it from the Porter County

prosecutor’s office. He wasn’t testifying, of course, and

it’s unclear when the attorney obtained the copy (the

parties agree that the prosecutor’s file was destroyed

sometime in 2006). The material point is that the

Whitlocks have no evidence—nor any reasonable infer-

12 No. 08-2800

ence from the evidence—that Brown withheld his case

report from the prosecutor. It’s pure speculation.

This conclusion does not end our inquiry. The case

report itself contained an omission: Brown did not

include the Whitlocks’ innocent explanation for why

they left the park with Kohlhoff’s bags. This requires us

to decide whether this information was material to the

warrant-issuing judge’s probable-cause determination.

Indiana’s criminal-conversion statute provides that a

“person who knowingly or intentionally exerts unautho-

rized control over property of another person commits

criminal conversion.” IND. C ODE § 35-43-4-3. Control over

property is “unauthorized” in eight statutorily specified

situations. One is applicable here: Control is “unautho-

rized” if it is exerted “without the other person’s consent

[or] in a manner or to an extent other than that to which

the other person has consented.” Id. § 35-43-4-1(b); Taylor

v. State, 445 N.E.2d 1025, 1027 (Ind. Ct. App. 1983). The

statute requires that the offender act “knowingly or

intentionally,” see Midland-Guardian Co. v. United Consumers

Club, Inc., 499 N.E.2d 792, 798 (Ind. Ct. App. 1986) (observ-

ing that the State must prove “not only that [defendant]

exerted unauthorized control over . . . property, but

also that [defendant] was aware of a high probability

that this control was unauthorized”), and a defendant’s

reasonable belief that he controlled or continued to

control property with the owner’s consent will defeat this

element of conversion, see, e.g., Manzon v. Stant Corp., 138

F. Supp. 2d 1110, 1116-17 (S.D. Ind. 2001). The statute

does not require that the defendant intend to permanently

deprive the owner of his property. See Bennett v. State,

871 N.E.2d 316, 322 (Ind. Ct. App. 2007).

No. 08-2800 13

The materiality of the Whitlocks’ innocent explanation

depends on how Indiana would address the issue of

owner’s consent in cases involving lost or mislaid prop-

erty. Perhaps an Indiana court would hold that

finders of lost property have implied consent from the

owner to exert control for the limited purpose of

returning it. Applying the law with this judicial gloss,

Brown’s failure to include the Whitlocks’ innocent ex-

planation in his case report may well have been a

material omission. The Whitlocks’ explanation would

support a conclusion that they did not exercise “unautho-

rized” control over the bags; under a doctrine of

implied consent, Kohlhoff would have consented to the

Whitlocks’ control over his unattended property for the

purpose of taking it to the park office for safekeeping.

On the other hand, because the Whitlocks kept

Kohlhoff’s belongings in their car for several hours, they

might have exceeded the scope of any implied consent.

But their explanation that they simply forgot about the

bags in the midst of a heated argument sheds further

light on this question. That the Whitlocks called

Kohlhoff and then returned the bags intact also sup-

ports an exculpatory interpretation of their conduct.

In the end, however, any consideration of implied

consent is academic. The Whitlocks have not directed us

to any Indiana cases purporting to establish an implied-

consent defense to a charge of criminal conversion,

either as a general matter or more specifically where lost

or mislaid property is involved. Nor have we found

any ourselves. Given the breadth of Indiana’s criminal-con-

version statute and the apparent absence of an implied-

14 No. 08-2800

consent defense, the Whitlocks’ excuse was irrelevant to

the probable-cause determination—or at least of

such questionable relevance that Brown is entitled to

qualified immunity. At best, Indiana law is undeveloped

in this area.

Qualified immunity tolerates reasonable mistakes

regarding probable cause. See Malley v. Briggs, 475 U.S.

335, 343 (1986). Under the circumstances here, a rea-

sonable officer would not have known one way or the

other whether the Whitlocks’ explanation for their

conduct was material to the probable-cause determi-

nation for criminal conversion under Indiana law.1 Ac-

1

Given the breadth of Indiana’s conversion statute and the

undeveloped state of its law on implied consent, we could just

as easily conclude that Brown did not act with the required

mental state to violate the Whitlocks’ constitutional rights. An

officer violates the Fourth Amendment if he omits facts with the

intent to deceive or with a reckless disregard for whether

the warrant-issuing judge would be deceived. See United States

v. Awadallah, 349 F.3d 42, 67-68 (2d Cir. 2003); United States

v. Colkley, 899 F.2d 297, 300-01 (4th Cir. 1990). That is, the

officer must have “failed to inform the judicial officer of facts

[he] knew would negate probable cause.” Beauchamp, 320 F.3d at

743. Alternatively, reckless disregard may be inferred if the

omitted facts were “clearly critical” to a probable-cause deter-

mination. See, e.g., Rivera v. United States, 928 F.2d 592, 604 (2d

Cir. 1991). As we have explained, it is unclear under Indiana

law whether the Whitlocks’ innocent explanation would have

made any difference to the probable-cause determination. Under

these circumstances, Brown cannot have known whether the

(continued...)

No. 08-2800 15

cordingly, we come to the same conclusion as the district

court, albeit by a somewhat different analysis. Brown is

entitled to qualified immunity. The judgment of the

district court is A FFIRMED.

1

(...continued)

omitted explanation was “clearly critical” to the probable-cause

determination, much less whether it would negate probable

cause.

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