finding that officers generally have "no duty to investigate the extenuating circumstances or search for exculpatory evidence once probable cause has been established via the accusation of a credible witness"
How later courts described this case
- finding that officers generally have "no duty to investigate the extenuating circumstances or search for exculpatory evidence once probable cause has been established via the accusation of a credible witness"
- explaining that probable cause to arrest “is an absolute defense to any claim under Section 1983 against police officers for wrongful arrest, false imprisonment, or malicious prosecution”
- explaining that “only in ‘unusual cases’ may a district court exercise its discretion to assert its supplemental jurisdiction” once federal claims have fallen out of the case before trial
- finding officer’s belief reasonable when prosecutor independently determined that probable cause existed
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐1896
PAUL BURRITT,
Plaintiff‐Appellant,
v.
LISA DITLEFSEN, et al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:12‐cv‐00909‐wmc — William M. Conley, Chief Judge.
ARGUED NOVEMBER 2, 2015 — DECIDED NOVEMBER 30, 2015
Before BAUER, POSNER, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Plaintiff‐appellant, Paul Burritt
(“Burritt”), appeals the district court’s order granting summary
judgment in favor of defendants‐appellees, Lisa Ditlefsen
(“Ditlefsen”) and Polk County, on all of Burritt’s causes of
action, as well as the district court’s denial of his Rule 59(e)
motion. Burritt’s complaint advances claims under 42 U.S.C.
§ 1983 for false arrest and false imprisonment in violation of his
Fourth and Fourteenth Amendment rights, as well as state
2 No. 15‐1896
common law claims for false imprisonment, malicious prosecu‐
tion, negligence, and defamation. Burritt’s claims stem from his
arrest for an alleged sexual assault of an eleven‐year‐old girl,
which allegation turned out to be false. For the following
reasons, we affirm.
I. BACKGROUND
Because the facts giving rise to Burritt’s arrest are central to
the issues in this case, we present them in detail. In early
November 2011, Handi‐Lift Transportation, Inc. (“Handi‐Lift”),
a provider of transportation for medical purposes, hired Burritt
as a driver. (Burritt had previously worked as an EMT). On
November 23, 2011, Burritt was assigned to transport an
eleven‐year‐old girl (“SMH”) from Impact Counseling Services
(“ICS”), located in Hayward, Wisconsin, to her home in
Birchwood, Wisconsin. Burritt was not the regular driver of
this route; he had never driven the route prior to November 23,
2011, and had not previously transported SMH.
Burritt picked SMH up at ICS at 4:15 p.m. At 5:01 and
5:02 p.m., SMH used Burritt’s cell phone to call her mother to
let her know she would be late. Burritt dropped SMH off near
her home at 6:14 p.m. The distance between ICS and SMH’s
home is roughly 30 miles and should be a 40‐minute drive.
A. Initial Investigation
Five days later on November 28, 2011, SMH told her
counselor at ICS that the Handi‐Lift driver sexually assaulted
her on November 23, 2011; ICS contacted the Hayward Police
Department. SMH was unwilling to speak with the male officer
who responded, Ryan Ignace (“Ignace”). When Ignace could
No. 15‐1896 3
not locate a female police officer, he requested that Sara Ross
Poquette (“Poquette”) with Sawyer County Health & Human
Services interview SMH.
When Poquette arrived at ICS, she met with Ignace, SMH,
and SMH’s mother and stepfather. Ignace told everyone that
Poquette’s interview of SMH would be recorded, and everyone
consented.
Poquette began by questioning SMH about the difference
between the truth and a lie. SMH gave appropriate responses
indicating she knew the difference between the truth and a lie
and that there are consequences of lying.
SMH reported that after Burritt picked her up at ICS, he
deviated from the normal route and drove her to a house in the
country, describing the property as an old farm with outbuild‐
ings or sheds, but without farm animals. SMH was able to
draw a picture of the house, showing wooded areas and the
driveway, and indicating where Burritt parked the Handi‐Lift
van. She stated Burritt got out of the van, went to the house
and let out his six dogs, one of which was a pitbull.
SMH stated that after he let out his dogs, Burritt came back
to the van, opened the sliding van door next to her, and
touched her on her neck, chest, and pubic area, over her
clothes. Burritt then tried to unzip her pants. She yelled, “Get
away from me,” kicked him, and closed the sliding van door
on his hand. SMH then stated that Burritt punched her twice
on the inside of her left knee, which left two small bruises. She
stated that Burritt said, “I really wanted to have you.”
4 No. 15‐1896
SMH stated that Burritt closed the sliding van door, put his
dogs away, and drove the van from the home. She thought
Burritt was speeding because she saw a speed limit sign of
“53” but Burritt was going 70. She saw the Dinner Bell Restau‐
rant, located in Trego, Wisconsin. Burritt stopped at a gas
station near Rice Lake, Wisconsin, got gas, and bought some‐
thing in a brown paper bag, which SMH thought was beer. At
some point during the trip, SMH used Burritt’s cell phone to
call her mother. Finally, Burritt dropped her off at a silage pile
a short distance from her home because Burritt was afraid to
drop her off in her driveway. Burritt told SMH to say they
were late because they made a “ding dong disaster,” went the
wrong way, and took a wrong turn. Poquette, a qualified social
worker, had no concerns about SMH’s suggestibility or
reliability, and felt SMH was credible and gave sufficiently
detailed information.
Ignace then interviewed SMH’s mother and stepfather.
SMH’s mother confirmed that SMH had called her on the night
of the alleged assault. She reported that SMH told her the van
driver told SMH to call and say they had made a wrong turn
and were going to be late. She indicated SMH did not sound
like her usual self during this phone call, and reported that
SMH began having night terrors on the night of the alleged
assault. SMH’s mother and stepfather stated they were very
strict about lying at home. The stepfather stated that he saw
tire tracks by the silage pile, where SMH reported Burritt
dropped her off, roughly 300 feet from their driveway.
On November 28, 2011, Ignace contacted Bill Lussier
(“Lussier”), an owner of Handi‐Lift, to request information
about Burritt, which Lussier provided. Lussier also sent to
No. 15‐1896 5
Ignace a copy of the Handi‐Lift transport log prepared by
Burritt, which showed, per the odometer readings of the van,
that Burritt traveled 121 miles to transport SMH, but “21” was
written as the total miles traveled.
Lussier informed Burritt of SMH’s allegations. Lussier had
Burritt write out his own version of events pertaining to the
November 23, 2011, transport of SMH. Lussier also directed
Burritt to have his hand examined, given SMH’s report of
having closed the van door on Burritt’s hand. Burritt went to
a clinic the same day and had his hand examined, which
showed no injury. Lussier sent Burritt’s written statement and
the results of the medical examination to the Hayward Police
Department the following day.
On November 29, 2011, Ignace went to ICS and photo‐
graphed a bruise on SMH’s knee. Ignace and Hayward Police
Assistant Chief Faulstich (“Faulstich”) went to Burritt’s home
in Turtle Lake, Wisconsin, located in Polk County. Ignace took
photographs of the property, noting several vehicles in the
driveway bearing “EMT” license plates. Several dogs were
present outside, and others could be heard barking inside the
house. Between the house and the farm field were three
buildings. Ignace did not see any farm animals. Faulstich and
Ignace felt SMH’s description of the location of the alleged
assault matched Burritt’s property.
Ignace reviewed Burritt’s statement, in which he claimed he
took a wrong turn that took him to Rice Lake. Ignace then used
Yahoo maps to determine how long it would take to drive from
ICS in Hayward to Rice Lake, through Trego via Highway 53,
to SMH’s home in Birchwood. (SMH had reported seeing a
6 No. 15‐1896
sign with “53” on it). Yahoo maps indicated a distance of 75
miles for this route. Faulstich and Ignace concluded that the
alleged assault took place at Burritt’s home in Polk County and
referred the case to the Polk County Sheriff’s Department.
B. Investigation by Ditlefsen and Polk County
Ditlefsen is an investigator employed by the Polk County
Sheriff’s Department since 2002. In 2003, she was assigned to
the Investigations Unit, specializing in sensitive crimes
(including sexual assaults of children). When she was assigned
to Investigations, she received specialized training from the
Department of Justice and the FBI on investigation of crimes
against children. Since 2004, Ditlefsen has investigated roughly
500 cases involving sensitive crimes.
On December 1, 2011, Ditlefsen received a voicemail
message from Faulstich informing her of a possible sexual
assault case (SMH’s case) in Polk County. The next day,
Ditlefsen spoke with Faulstich, who informed her of the details
of SMH’s case, providing her with the information gained from
their investigation. Ditlefsen reviewed various documents and
photographs she received from the Hayward Police Depart‐
ment. In particular, she reviewed the Handi‐Lift transport log
for Burritt’s trip, which Burritt had signed. The log reflected
that Burritt picked up SMH at ICS at 4:15 p.m., with an
odometer reading of 218,267 miles, and dropped her off at
home at 6:20 p.m., with an odometer reading of 218,388 miles.
Although the difference between the odometer readings
revealed a total of 121 miles traveled, Burritt had recorded the
total mileage of the trip as 21 miles. Ditlefsen thought the
No. 15‐1896 7
mathematical calculation error was suspicious and that the
total miles traveled supported SMH’s claims.
Ditlefsen also spoke with Poquette, whom she knew as an
experienced child interviewer, about Poquette’s interview of
SMH. Poquette informed her of the information gained from
the interview and agreed to send Ditlefsen her notes and a CD
of the recorded interview.
Also on December 2, 2011, Ditlefsen spoke with SMH’s
mother. She confirmed that SMH was usually picked up from
ICS at 4:00 p.m. and dropped off at home at 5:00 p.m. She
confirmed that on November 23, SMH was roughly 1.5 hours
late, arriving home around 6:30 or 6:45 p.m. She also confirmed
that Burritt was not SMH’s regular driver, and that he dropped
SMH off by the silage pile, rather than pulling into the drive‐
way. These details were in line with SMH’s claims.
In addition, Ditlefsen reviewed a statement from Debbie
Schlapper (“Schlapper”), SMH’s counselor at ICS. The version
of events given to Schlapper by SMH was consistent with the
information provided by SMH to Poquette.
Ditlefsen then used MapQuest to examine the possible
routes and mileage between ICS and SMH’s home, given the
stops at Burritt’s property and the gas station in Rice Lake. She
mapped ICS to Burritt’s home, via Highway 63 to Highway 53
to Highway 8, which resulted in a distance of roughly 75 miles
and a drive time of 1 hour and 25 minutes. Ditlefsen also
mapped a second route between ICS and Burritt’s home, via
Highway 63 to Highway 8, which was roughly 61 miles with
a drive time of 1 hour and 25 minutes. Ditlefsen then mapped
a route from Burritt’s home to SMH’s home of Highway 8 to
8 No. 15‐1896
Highway 53, which resulted in roughly 51 miles with a drive
time of 1 hour. Ditlefsen concluded that the total distance
driven and the correlating drive times were very close to the
actual odometer readings from the transport log, using SMH’s
version of events and the possible routes mapped on
MapQuest.
On December 5, 2011, Ditlefsen received and reviewed
Poquette’s notes and the CD of the recorded interview. She
compared SMH’s description and diagram of the property to
an aerial image of Burritt’s property and found them to be
similar. Any inconsistencies between SMH’s description or
diagram and Burritt’s property could be explained by SMH’s
age (11), being unfamiliar with the surroundings, and having
been involved in a traumatic experience.
On December 5, 2011, Ditlefsen obtained search warrants
for Burritt’s van GPS device and cell phone records.
During her investigation, Ditlefsen kept two other county
employees abreast of and involved in its development. The
first person was Ditlefsen’s supervisor, Captain Steve Smith
(“Smith”). Smith has been an officer with the Polk County
Sheriff’s Department since 1986. Smith was responsible
for reviewing all reports that were sent from the Sheriff’s
Department to the District Attorney and acted as the liaison
between the two offices. Ditlefsen met with Smith multiple
times during her investigation and prior to Burritt’s arrest.
Smith also independently reviewed the materials received
from the Hayward Police Department and obtained by
Ditlefsen.
No. 15‐1896 9
The second person was Polk County District Attorney
Daniel Steffen (“Steffen”). Steffen was admitted to the Wiscon‐
sin bar in 1998 and practiced family law and criminal defense
privately before being elected the Polk County District Attor‐
ney in 2006. Ditlefsen met with Steffen throughout her investi‐
gation to keep him apprised of developments. Steffen person‐
ally handled the majority of felony cases for his office and
handled the Burritt case in particular. Steffen independently
reviewed the case against Burritt and made the charging
decision. Also, Steffen reviewed Ditlefsen’s applications for the
search warrants for the GPS and cell phone records before they
were submitted to the judge. The judge found probable cause
to issue the search warrants.
Ditlefsen concluded she had probable cause to arrest Burritt
primarily based on the following factors: the detailed and
consistent reports given by SMH to different people at differ‐
ent times; SMH’s detailed description of Burritt’s property and
dogs; the route traveled; the excessive mileage as reflected by
the transport log; the fact that SMH was dropped off signifi‐
cantly later than normal; the fact that SMH was dropped off at
the silage pile rather than in the driveway; SMH’s mother’s
report that SMH did not sound like her usual self during the
cell phone call on the night of the alleged assault; and SMH
began having night terrors on the night of the alleged assault.
Steffen likewise determined there was probable cause to
arrest Burritt. Steffen was concerned with Burritt’s ability to
come into contact with other children as a driver for Handi‐Lift
and as an EMT. Steffen made the decision to have Burritt
arrested and told Ditlefsen to effect the arrest. Smith was kept
10 No. 15‐1896
informed of these developments and supported the decision to
arrest Burritt.
C. Arrest of Burritt
On December 6, 2011, Ditlefsen went to Burritt’s home to
arrest him and execute the search warrant for the GPS unit, but
Burritt was not home. Ditlefsen returned to the home the next
day, with two other officers. Ditlefsen told Burritt that she was
there to get the GPS unit and to arrest him. She did not have an
arrest warrant. Burritt invited the officers into his home and
assisted in retrieving the GPS unit for Ditlefsen. Ditlefsen took
photographs of the property and noted six dogs.
One of the other officers drove Burritt to the Sheriff’s
Department and placed Burritt in an interview room. Ditlefsen
read Burritt his rights pursuant to Miranda v. Arizona, 384 U.S.
436 (1996), which Burritt waived. Burritt explained that he
simply took a wrong turn and had gotten lost while driving
SMH home from ICS. He denied any wrongdoing. He denied
that his hand had been injured. Ditlefsen completed the
probable cause report and booked Burritt into jail. Burritt
posted bail the same day and was released.
Also on December 7, 2011, Ditlefsen served the search
warrant for Burritt’s cell phone records on Verizon.
D. Post‐Arrest Investigation
After Burritt’s arrest, Ditlefsen continued her investigation
of the case. Handi‐Lift provided her with the fuel log and fuel
receipt from the Cenex gas station, where Burritt had stopped
for gas in Rice Lake on November 23, 2011. The Cenex receipt
showed the gas purchase at 5:44 p.m. The fuel log reflected an
No. 15‐1896 11
odometer reading of 218,361 at the time of the gas purchase.
Given the math, Ditlefsen concluded that Burritt had driven 94
miles between ICS, where he picked up SMH, and the Cenex.
On December 9, 2011, SMH’s mother contacted Ditlefsen to
tell her of additional information SMH was reporting. SMH
was now claiming that Burritt had pulled down her pants
during the assault, that she had scratches and scabs on her
inner thighs, and that she was “spotting.” SMH stated she did
not report these details earlier because she did not want to
show her injuries. Ditlefsen requested another interview with
SMH.
Ditlefsen contacted the Cenex station to request video
surveillance, but no video was available. She also asked if a
receipt was available for the alcohol purchase (SMH reported
that Burritt purchased what she thought was beer), but the
Cenex did not sell alcohol. The Cenex confirmed the time of the
gas purchase on the gas receipt.
On December 12, 2011, SMH’s mother again contacted
Ditlefsen to inform her that SMH had been examined medi‐
cally, which showed a laceration and bruising in her genital
area. They set the interview of SMH for December 16, 2011.
The next day, December 13, 2011, Ditlefsen took Burritt’s
GPS unit to Deputy Shawn Demulling (“Demulling”) with the
St. Croix County Sheriff’s Department for forensic examina‐
tion. No one at the Polk County Sheriff’s Department was
qualified to perform the forensic analysis.
Also on December 13, 2011, Ditlefsen received Burritt’s cell
phone records from Verizon. The records showed the two calls
12 No. 15‐1896
made by SMH to her mother at 5:01 p.m. and 5:02 p.m. The
5:01 p.m. call utilized a cell tower located in Webster, Wiscon‐
sin. Ditlefsen mapped the location of the cell tower and found
it was located northwest of Siren, Wisconsin, off County
Highway D. The 5:02 p.m. call utilized a cell tower in Hertel,
Wisconsin. This indicated that Burritt’s van was traveling
westbound on Highway 70 toward Siren at the time of the
calls.
After reviewing the cell phone records, Ditlefsen contacted
Handi‐Lift to get Burritt’s full schedule for the entire day of
November 23, 2011. The transport records showed that prior to
transporting SMH, Burritt had transported another client to her
home in Siren, Wisconsin. That client confirmed Burritt had
transported her on November 23, 2011. Burritt’s cell phone
records aligned with the full transport records and revealed
Burritt had been near Siren, rather than his home in Turtle
Lake. At this point, Ditlefsen first suspected that SMH’s
allegations may not be true. Ditlefsen contacted Faulstich and
kept him abreast of this development.
On December 16, 2011, Ditlefsen interviewed SMH. SMH
gave the same version that she had given earlier, describing
Burritt’s property and dogs, and providing another drawing of
the property. This time, however, SMH reported that after
Burritt let out his dogs, he took her out of the van and laid her
down in the grass. SMH reported that Burritt removed her
pants and underwear, without taking off her shoes, pulled
down his pants, and tried to have intercourse with her. SMH
reported that it hurt. SMH claimed that in response, she kicked
Burritt and ran to the van, trying to pull up her pants as she
went. Ditlefsen specifically asked SMH to retell various
No. 15‐1896 13
portions of her story multiple times, in order to test her, which
SMH did.
On December 20, 2011, Ditlefsen received the medical
records pertaining to SMH’s medical examination. The records
confirmed some evidence of bruising and a laceration in
SMH’s genital area.
On December 22, 2011, Ditlefsen met with Demulling to
review his forensic analysis of the GPS unit. The information
from the unit showed that Burritt had come within 5 to 10
miles of the Polk County border but never actually entered
Polk County during the entire transport of SMH. Further, the
GPS data indicated that Burritt never even came close to his
property in Turtle Lake, which was 25 to 30 miles further south
than his actual route.
The next day, Ditlefsen called Burritt and told him she was
going to recommend to the District Attorney that the charges
against him be dropped. Ditlefsen also contacted SMH’s
mother and told her that the GPS data and cell phone records
corroborated Burritt’s version of events and requested another
interview with SMH.
On January 3, 2012, Ditlefsen interviewed SMH. When
confronted with the GPS and cell phone data, SMH fully
recanted and admitted to lying about the assault. SMH said she
made up the story because she did not want to go to ICS for
counseling.
Ditlefsen contacted District Attorney Steffen and informed
him of SMH’s recantation. The next day, January 4, 2012,
Steffen filed a motion to dismiss the criminal complaint against
14 No. 15‐1896
Burritt, which the court approved. In addition, SMH was
referred to the Polk County juvenile justice system. Ditlefsen
recommended that SMH be charged with false swearing, a
felony. SMH ultimately pled to a count of obstruction of
justice, a misdemeanor.
E. Procedural History
Burritt filed his complaint naming Ditlefsen and Polk
County as defendants on December 10, 2012, alleging 42 U.S.C.
§ 1983 causes of action for false arrest and false imprisonment
in violation of his Fourth and Fourteenth Amendment rights,
and state common law claims for false imprisonment, mali‐
cious prosecution, negligence, and defamation.
Ditlefsen and Polk County moved for summary judgment.
The district court granted the motion, finding Ditlefsen had
arguable probable cause to effect Burritt’s arrest and was
entitled to qualified immunity, and that Polk County could not
be held liable under Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978). The district court declined to assert supplemental
jurisdiction over Burritt’s state law claims and dismissed them
without prejudice.
Burritt then filed a motion to alter or amend the judgment
under Federal Rule of Civil Procedure 59(e), which the district
court denied.
Burritt appealed these decisions of the district court.
No. 15‐1896 15
II. DISCUSSION
A. Summary Judgment Motion
We review the district court’s granting of the motion for
summary judgment de novo and construe all facts and reason‐
able inferences in Burritt’s favor, as he is the non‐movant.
Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006)
(citation omitted). Summary judgment is proper when “the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a).
1. Claims Against Ditlefsen
a. Warrantless Entry—Consent
Burritt argues on appeal that because there were no exigent
circumstances, Ditlefsen’s warrantless arrest of him in his
home in and of itself violated his Fourth Amendment rights.
Two elements are implicated by Burritt’s argument. The first
is whether Ditlefsen’s entry into Burritt’s home infringed on
Burritt’s Fourth Amendment rights. The second is whether
Burritt’s arrest was supported by probable cause.
With regard to the entry into Burritt’s home, Burritt omits
one important exception to the warrant requirement: consent.
When a person with authority over the premises consents to an
entry by law enforcement, that entry is reasonable and does
not infringe on the person’s Fourth Amendment rights. See,
e.g., United States v. Sabo, 724 F.3d 891, 894 (7th Cir. 2013)
(warrantless entry upheld, consent found where arrestee
opened door, stepped back and to side, allowing police into his
trailer); Harney v. City of Chicago, 702 F.3d 916, 925–26 (7th Cir.
16 No. 15‐1896
2012) (warrantless entry upheld, consent found where officer
followed one of two arrestees into condominium unit and
neither arrestee objected to officer’s presence in their home);
United States v. Walls, 225 F.3d 858, 862–63 (7th Cir. 2000)
(warrantless entry upheld, consent found where arrestee
opened door to officers, stepped back to allow officers’
entrance into home, motioned for officers to follow her into
kitchen); United States v. Cotnam, 88 F.3d 487, 495 (7th Cir. 1996)
(warrantless entry upheld, consent found where arrestee
gestured to officers to open door with key and did not object
to their presence in his hotel room).
When Ditlefsen told Burritt she was there to get the GPS
unit and arrest him, Burritt invited the officers into his home
and assisted by providing them with the GPS unit. There is no
evidence that Burritt objected to the officers’ presence in his
home at the time of the arrest. Ditlefsen’s entry into Burritt’s
home did not infringe on his Fourth Amendment rights
because he consented to it.
b. Arguable Probable Cause and Qualified Immu‐
nity
“Probable cause to arrest is an absolute defense to any
claim under Section 1983 against police officers for wrongful
arrest, false imprisonment, or malicious prosecution.” Mustafa,
442 F.3d at 547 (citation omitted). However, we need not
address whether Ditlefsen did or did not have actual probable
cause to arrest Burritt because Ditlefsen is entitled to qualified
immunity as she had arguable probable cause.
“Qualified immunity protects officers performing discre‐
tionary functions from civil liability so long as their conduct
No. 15‐1896 17
does not violate clearly established statutory or constitutional
rights that a reasonable person would know about.” Mustafa,
442 F.3d at 548 (emphasis in original) (citation omitted). It
protects “all but the plainly incompetent or those who know‐
ingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Once qualified immunity is raised, the plaintiff has the burden
of establishing that his or her rights were violated and that the
law concerning the proffered right “was clearly established at
the time the challenged conduct occurred.” Mustafa, 442 F.3d
at 548. Then, the court must determine “whether a reasonably
competent official would know that the conduct was unlawful
in the situation he confronted.” Id.
The fact that criminal charges are eventually dropped or the
complaining witness later recants has no consideration in the
determination of arguable probable cause at the time of arrest.
See, e.g., Fleming v. Livingston Co., Ill., 674 F.3d 874, 875, 880 (7th
Cir. 2012); McDonnell v. Cournia, 990 F.2d 963, 969–70 (7th Cir.
1993) (overruled on other grounds by Hill v. Tangherlini, 724
F.3d 965, 967 n.1 (7th Cir. 2013)).
Ditlefsen has raised qualified immunity as a defense.
Burritt has countered that he was arrested without probable
cause. Specifically, Burritt argues that Ditlefsen improperly
ignored exculpatory evidence, in that the MapQuest route
evidence never supported SMH’s story, and Ditlefsen should
have waited to arrest Burritt only after she received the GPS
data. Because Burritt had the constitutional right to be free
from an arrest unsupported by probable cause, and that right
was clearly established at the time Ditlefsen arrested him, the
only element for our consideration is whether a reasonable
officer in Ditlefsen’s position with the information available to
18 No. 15‐1896
Ditlefsen at the time could believe it was lawful to arrest
Burritt.
Although closely related, a determination of actual proba‐
ble cause is separate and distinct from a determination of what
is sometimes referred to as “arguable probable cause” for
qualified immunity purposes. Fleming, 674 F.3d at 880. An
officer is entitled to qualified immunity if “a reasonable officer
could have mistakenly believed that probable cause existed.”
Id. (internal quotations omitted) (citations omitted). “Thus, as
long as [Ditlefsen] reasonably, albeit possibly mistakenly,
believed that probable cause existed to arrest [Burritt], then
[Ditlefsen] is entitled to qualified immunity.” Id. (citation
omitted).
We have found arguable probable cause and upheld
qualified immunity in various cases with similar fact patterns
to this case. For instance, in Fleming, we found arguable
probable cause where the officer located the plaintiff‐arrestee
within seven minutes of receiving a report of a break‐in and
fondling of two teenage girls, and where the plaintiff‐arrestee
was the only individual in the area who substantially matched
the physical description given by one of the victims. Id.
Although there were “minor variations” between the physical
description given by one of the victims and the physical
appearance of the plaintiff‐arrestee, the officer was objectively
reasonable in his belief that he had probable cause for the
arrest and that the plaintiff‐arrestee was the person who
committed the offense. Id.
Here, when Ditlefsen arrested Burritt she had the following
pieces of information: SMH had repeated her detailed story to
No. 15‐1896 19
different individuals and there was no indication from her
recitations that she was lying or suggestible; the information
given by SMH’s mother and stepfather tended to corroborate
SMH’s story; SMH was able to describe and draw a picture of
the scene of the assault, which generally matched Burritt’s
property; SMH reported that Burritt had a number of dogs,
which he actually did have; and the trip took roughly two
hours when it should have taken forty minutes. Ditlefsen
believed the routes she mapped on MapQuest supported
SMH’s story.
Burritt argues that the information gained by Ditlefsen
from MapQuest never supported SMH’s story. In this same
vein, Burritt presented evidence that the owners of Handi‐Lift,
Bill and Connie Lussier, both independently expressed their
doubts to Ditlefsen, prior to Burritt’s arrest, that the trip with
the stops as alleged by SMH could even be accomplished in the
established time frame. Ditlefsen denied the Lussiers ever
expressed such concerns to her. Although she could have been
mistaken, Ditlefsen believed the routes she mapped on
MapQuest supported SMH’s version of events.
Burritt also argues that Ditlefsen should have waited to
arrest him until after she received the GPS data. We rejected a
similar argument in Mustafa, explaining that “police officers
have no duty to investigate extenuating circumstances or
search for exculpatory evidence once probable cause has been
established via the accusation of a credible witness.” Mustafa,
442 F.3d at 548 (citation omitted). See also Abbott v. Sangamon
Co., Ill., 705 F.3d 706, 716 (7th Cir. 2013) (citations omitted).
Law enforcement is not required to discover more information
to undermine probable cause once it has been established.
20 No. 15‐1896
Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th
Cir. 2004) (citations omitted).
Further bolstering Ditlefsen’s qualified immunity is the fact
that she consulted with the Polk County District Attorney and
her supervisor before arresting Burritt. In Fleming, we ex‐
plained that the fact that the officer had consulted with the
District Attorney prior to arresting the plaintiff‐arrestee “goes
a long way toward solidifying his qualified immunity de‐
fense.” Fleming, 674 F.3d at 881, (citing Kijonka v. Seitzinger, 363
F.3d 645, 648 (7th Cir. 2004)); see also Davis v. Zirkelbach, 149
F.3d 614, 620–21 (7th Cir. 1998). Prior to Burritt’s arrest,
Ditlefsen met with the Polk County District Attorney, Steffen,
multiple times to keep him advised of developments in the
investigation. When Ditlefsen believed she had probable cause
to arrest Burritt, legal counsel (Steffen) and her supervisor
(Smith) vetted her determination. When it came time to arrest
Burritt, Steffen made the decision to arrest and told Ditlefsen
to take Burritt into custody. Steffen independently determined
that probable cause existed. Also, Ditlefsen’s supervisor, Smith,
believed probable cause supported the arrest.
We find Ditlefsen was reasonable in her belief that she had
probable cause to arrest Burritt. Further, Ditlefsen was objec‐
tively reasonable in her reliance on Steffen’s probable cause
determination and instructions to effect the arrest. Because
Ditlefsen is entitled to qualified immunity, the district court
did not err in granting her motion for summary judgment on
Burritt’s § 1983 claims.
No. 15‐1896 21
2. Claims Against Polk County
A respondeat superior theory of liability may not be pursued
against a municipal government entity, such as Polk County.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). However,
a municipality may be found liable for a § 1983 claim where
“execution of a government’s policy or custom … inflicts the
injury.” Id., at 694. In order to prove liability on the part of Polk
County under Monell, Burritt must prove “either (1) an express
policy that, when enforced, causes a constitutional deprivation;
or (2) that the constitutional injury was caused by a person
with final policymaking authority.” Montano v. City of Chicago,
535 F.3d 558, 570 (7th Cir. 2008) (citation omitted).
On appeal, Burritt does not present any argument or
evidence to advance a claim of a constitutional deprivation
caused by an express policy. Burritt loosely argues that District
Attorney Steffen, by directing the warrantless arrest, caused his
constitutional deprivation. However, Burritt has presented no
evidence that the District Attorney was “a person with final
policymaking authority.” In fact, the parties agree that the
County Sheriff was the individual “with final policymaking
authority,” particularly with regard to procedures for effecting
arrests. In this case, the District Attorney instructed Ditlefsen
to effect the arrest. There is no evidence the County Sheriff was
personally involved in the determination to arrest Burritt.
Also, Burritt briefly argues that because the District
Attorney and the County Sheriff were not aware of the
Wisconsin Office of Judicial Assistance’s Prosecutor’s Sexual
Assault Reference Book, they did not follow the guidelines
contained within the book. Burritt argues that this gives rise to
22 No. 15‐1896
a viable Monell claim. Burritt cites no legal authority to support
his proposition that a law enforcement agency is required to
follow guidelines promulgated by an unrelated, independent
agency.
In addition, “in limited circumstances a municipality may
be held liable under § 1983 for constitutional violations
resulting from a failure to properly train police officers.”
Sallenger v. City of Springfield, Ill., 630 F.3d 499, 504, (7th Cir.
2010) (citing City of Canton v. Harris, 489 U.S. 378, 387 (1989)).
Failure to train officers may support a Monell claim, but “only
where the failure to train amounts to deliberate indifference to
the rights of persons with whom the police come into contact.”
City of Canton, 489 U.S. at 388. Burritt simply concludes a
failure to train on the part of the Polk County Sheriff’s Office.
He fails to cite to any legal authority or present any evidence
that the Polk County Sheriff’s Office failed to properly train its
officers. In fact, Ditlefsen received specialized training from the
Department of Justice and the FBI on investigation of crimes
against children.
Because there is no dispute as to any material fact with
regard to Burritt’s Monell claims, the district court did not err
in granting summary judgment in favor of Polk County.
3. State Law Claims
After granting Ditlefsen’s and Polk County’s motion for
summary judgment, the district court declined to exercise its
supplemental jurisdiction and dismissed Burritt’s state law
claims without prejudice. We review a district court’s absten‐
tion from exercising its supplemental jurisdiction for an abuse
No. 15‐1896 23
of discretion only. Capeheart v. Terrell, 695 F.3d 681, 686 (7th
Cir. 2012).
“The general rule, when the federal claims fall out before
trial, is that the [district court] should relinquish jurisdiction
over any supplemental (what used to be called ‘pendent’) state
law claims in order to minimize federal judicial intrusion into
matters of purely state law.” Carr v. CIGNA Secs., Inc., 95 F.3d
544, 546 (7th Cir. 1996) (citations omitted). We have recognized
that only in “unusual cases” may a district court exercise its
discretion to assert its supplemental jurisdiction based upon
the balance of the factors of “judicial economy, convenience,
fairness and comity.” Wright v. Associated Ins. Companies, Inc.,
29 F.3d 1244, 1251 (7th Cir. 1994).
We cannot deem this case to be an “unusual” one. Burritt
has not provided any argument or citation to any legal
authority to support his position that the district court abused
its discretion in declining to exercise its supplemental jurisdic‐
tion. The district court concluded it had not decided any issue
that was dispositive with regard to any of Burritt’s state law
claims. The district court did not abuse its discretion in
dismissing without prejudice Burritt’s state law claims.
B. Rule 59(e) Motion
After the district court granted Ditlefsen’s and Polk
County’s motion for summary judgment, Burritt moved to
alter or amend the judgment pursuant to FED. R. CIV. P. 59(e).
The district court denied his motion, and we affirm this denial.
We review the district court’s denial of the motion to alter
or amend the judgment for an abuse of discretion only. Matter
24 No. 15‐1896
of Prince, 85 F.3d 314, 324 (7th Cir. 1996) (citation omitted). A
motion to alter or amend a judgment is only proper when “the
movant presents newly discovered evidence that was not
available at the time of trial or if the movant points to evidence
in the record that clearly establishes a manifest error of law or
fact.” Id. (citations omitted). A “manifest error” occurs when
the district court commits a “wholesale disregard, misapplica‐
tion, or failure to recognize controlling precedent.” Oto v.
Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal
quotations omitted) (citation omitted).
In his motion to alter or amend, Burritt did not present any
newly discovered evidence. Neither did he establish a manifest
error of law or fact. Based upon our review of the district
court’s deliberate and detailed rulings, we find that the district
court did not commit any manifest error of law or fact in
granting Ditlefsen’s and Polk County’s motion for summary
judgment. Specifically, the district court did not disregard or
misapply controlling precedent. Thus, the district court did not
abuse its discretion in denying Burritt’s Rule 59(e) motion.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
No. 15‐1896 25
POSNER, Circuit Judge, dissenting. The arrest of the plain‐
tiff was not based on probable cause, and the dismissal of his
suit should therefore be reversed.
I disagree with the majority that Investigator Ditlefsen,
the principal defendant, had “arguable probable cause” to
arrest Burritt. She had nothing of the sort. A reasonable of‐
ficer in her position would not have ignored the obvious red
flags that arose during her investigation, and so would not
have believed that she had probable cause. E.g., Sornberger v.
City of Knoxville, 434 F.3d 1006, 1016 (7th Cir. 2006). Prior to
the arrest Ditlefsen had researched the route that SMH, Bur‐
ritt’s accuser, had said that Burritt had taken (from Impact
Counseling Center to Burritt’s house, and then from his
house to SMH’s house), and she had concluded with some
help from MapQuest that it would have taken him roughly
two hours and twenty‐five minutes to drive the alleged
route, not including the stops for gas and at Burritt’s house
reported by SMH. According to his vehicle log Burritt had
left Impact Counseling Center with SMH at 4:15 and SMH’s
mother estimated that her daughter had arrived home be‐
tween 6:30 and 6:45, and that timeline contradicted SMH’s
version of events. For how could Burritt have driven a dis‐
tance that takes two and a half hours to cover nonstop, yet
while en route stop to get gas and assault SMH and arrive at
her home all in two and a quarter hours or at most two and a
half hours? As it turned out, he couldn’t have, and we now
know that he didn’t.
Burritt’s former bosses, Bill and Connie Lussier, say that
prior to Burritt’s arrest they told Ditlefsen that Burritt could
not have driven the route, with stops along the way, in such
a short time. Connie Lussier told Ditlefsen that she “had a
26 No. 15‐1896
time, date, location‐stamped receipt for Skip [Burritt]’s refu‐
eling that showed he was telling the truth,” but Ditlefsen
brushed her off, even though the receipt showed that Burritt
couldn’t have made the stops alleged by SMH yet arrived at
her house within two and a half hours. Indeed when the re‐
ceipt was reviewed by prosecutors, along with data from
Burritt’s GPS, the criminal charges against him were dis‐
missed, precipitating the present suit, a civil rights suit
against Ditlefsen and her employer.
Ditlefsen told Bill Lussier that she had driven the alleged
route and had confirmed that Burritt could have driven it in
two and a half hours stops and all, though at her deposition
she admitted that she hadn’t driven the entire route; so her
time estimate was worthless. Ditlefsen also told the Lussiers,
prior to Burritt’s arrest, that his “GPS indicated that [Burritt]
was not where he claimed to be.” That was a lie; Ditlefsen
did not obtain the GPS until December 7, 2011, when she ex‐
ecuted the search warrant and arrested Burritt—and the
GPS, like the receipt for gas, proved Burritt’s innocence.
SMH had said that during the assault (which we know
never took place), which she claimed occurred in Burritt’s
car when it was parked in his driveway just before he went
into the house to let his dogs out, she had slammed the car
door on Burritt’s hand. A nurse who examined the hand five
days after the alleged assault found no signs of injury.
Ditlefsen had all this evidence of Burritt’s innocence be‐
fore she arrested him, but she presented none of it to the
judge who issued the search warrant, who if informed of
these inconsistencies would not have authorized the search.
In sum, Ditlefsen lacked even arguable probable cause to ar‐
No. 15‐1896 27
rest Burritt. The judgment exonerating her should therefore
be reversed.
I have a separate concern about the handling of this
case—a concern with automatically, uncritically, allowing
the arrest of a person in his home when no arrest warrant
has been issued. It’s true that the Fourth Amendment does
not require search or arrest warrants at all (in retrospect a
rather embarrassing omission); the only mention of warrants
is found in the clause outlawing general warrants. That
clause states that warrants must be based on probable cause,
supported by an oath or affirmation, and describing with
particularity the target of the warrant. But the only require‐
ment of a lawful search or seizure set forth in the amend‐
ment is that it be reasonable; there is no suggestion that a
warrant is ever required for a search or an arrest.
Even after the Supreme Court interpreted the Fourth
Amendment to require warrants in some circumstances,
“warrantless felony arrests outside of the home routinely …
survived constitutional attack as long as probable cause [to
arrest] exist[ed].” United States v. Winchenbach, 197 F.3d 548,
554 (1st Cir. 1999). This understanding stemmed from the
“the ancient common‐law rule that a peace officer was per‐
mitted to arrest without a warrant for a misdemeanor or fel‐
ony committed in his presence as well as for a felony not
committed in his presence if there was reasonable ground
for making the arrest.” United States v. Watson, 423 U.S. 411,
418 (1976). The Court in Watson reasoned that “the public
safety, and the due apprehension of criminals, charged with
heinous offences, imperiously require that such arrests
should be made without warrant by officers of the law.” Id.
at 419. Concurring, Justice Powell explained that ”logic [ ]
28 No. 15‐1896
would seem to dictate that arrests be subject to the warrant
requirement at least to the same extent as searches. But logic
sometimes must defer to history and experience … . There is
no historical evidence that the Framers or proponents of the
Fourth Amendment, outspokenly opposed to the infamous
general warrants and writs of assistance, were at all con‐
cerned about warrantless arrests by local constables and oth‐
er peace officers. … In sum, the historical and policy reasons
… fully justify the Court’s sustaining of a warrantless arrest
upon probable cause, despite the resulting divergence be‐
tween the constitutional rule governing searches and that
now held applicable to seizures of the person.” Id. at 429,
432.
Yet just a few years later, though two centuries after the
ratification of the Fourth Amendment, the Supreme Court
declared “that an arrest warrant requirement may afford less
protection than a search warrant requirement, but it will suf‐
fice to interpose the magistrate’s determination of probable
cause between the zealous officer and the citizen. If there is
sufficient evidence of a citizen’s participation in a felony to
persuade a judicial officer [not just a police officer] that his
arrest is justified, it is constitutionally reasonable to require
him to open his doors to the officers of the law. Thus, for
Fourth Amendment purposes, an arrest warrant founded on
probable cause implicitly carries with it the limited authority
to enter a dwelling in which the suspect lives when there is
reason to believe the suspect is within.” Payton v. New York,
445 U.S. 573, 602–03 (1980). The implication is that normally
an arrest warrant is a prerequisite to arresting a person in his
home. The Court did not hold that a search warrant would
also allow such an arrest. The Court did say that the Fourth
No. 15‐1896 29
Amendment “prohibits the police from making a warrant‐
less and nonconsensual entry into a suspect’s home in order
to make a routine felony arrest,” id. at 576, but the bare ref‐
erence to “warrantless” left open the question whether either
an arrest warrant or a search warrant would suffice.
In some cases no warrant of any sort is required to au‐
thorize an arrest of a person in his home. If police passing by
a house hear screams, rush in, and observe a man trying to
strangle a woman, they can and should arrest him even
though they have no warrant; such an arrest is lawful. And
likewise if having approached a home to question a witness
officers become aware that a violent, dangerous criminal is
inside, as in Cook v. O’Neill, 803 F.3d 296, 299 (7th Cir. 2015).
The officers in Cook were justified in taking reasonable pre‐
cautions, including arrest, to minimize danger to themselves
and the public. Had they out of an abundance of caution in‐
stead removed themselves from potential danger, a danger‐
ous criminal would have escaped.
These are examples of arrests justified by “exigent cir‐
cumstances” (an emergency), which for obvious reasons al‐
low an arrest to be made without a warrant. Payton v. New
York, supra, 445 U.S. at 587. But there are judicial opinions
which say that a search warrant plus probable cause for an
arrest is enough to justify an arrest in the home without an
arrest warrant even if no emergency requires the officers ex‐
ecuting the search warrant to seize (that is, arrest) the occu‐
pant of the office or home searched. See, e.g., Jones v. City &
County of Denver, 854 F.2d 1206, 1209 (10th Cir. 1988). Often
in such cases, however—in United States v. Price, 888 F.2d
1206 (7th Cir. 1989), for example—there is more. The warrant
in that case authorized a search for guns, and they were
30 No. 15‐1896
found. Id. at 1208. The police could not let the defendant
wander around the apartment while it was being searched;
nor would it have been prudent to collect the guns, leave,
and leave him there—to find a gun they had missed, or to
flee. He was a dangerous person. Burritt—falsely accused
and suing for redress—is not and was not thought to be
dangerous even at the time of his arrest.
It bears emphasizing that a search warrant alone is not
enough to justify an arrest; there must be probable cause to
arrest. See, e.g., United States v. Reinholz, 245 F.3d 765, 778–79
(8th Cir. 2001). The search itself may reveal probable cause to
arrest the occupant of the residence that is being searched.
See, e.g., Mahlberg v. Mentzer, 968 F.2d 772, 775 (8th Cir.
1992). Police naturally are reluctant to sit around twiddling
their thumbs awaiting the receipt of an arrest warrant, which
may take hours, knowing they have probable cause to arrest
the person they’re sitting with. Waiting for an arrest warrant
in such a case would be a waste of police resources. Maybe
in all such cases, requiring an arrest warrant for the arrest of
a person in his home should be waived and the case regard‐
ed as one of exigent circumstances.
There were no exigent circumstances in this case. The po‐
lice had a warrant to search Burritt’s home, although if the
issuing judge had been presented with all the relevant in‐
formation he would have found probable cause lacking and
thus not have issued the warrant. But the police did not have
a warrant to arrest Burritt. I am mindful of the cases that
hold that a warrant to search a residence is a license to arrest
anyone found there for whom there is probable cause to ar‐
rest. See, e.g., Russell v. Harms, 397 F.3d 458, 466 (7th Cir.
2005); see also 3 Wayne R. LaFave, Search & Seizure: A Trea‐
No. 15‐1896 31
tise on the Fourth Amendment § 6.1(c) (5th ed. 2015). But most
are cases in which the affidavit on the basis of which the
search warrant was issued contains all the information that
would be required for the issuance of an arrest warrant. See,
e.g., Russell v. Harms, supra, 397 F.3d at 466; United States v.
Winchenbach, supra, 197 F.3d at 553–55; Jones v. City & County
of Denver, supra, 854 F.2d at 1209. But sometimes there is
probable cause to think that a person’s home or office con‐
tains contraband or some other proper object of a search, but
not to think that the person committed a crime. Maybe he’d
been asked by a friend to store a bag of salt and had agreed
to do so, having no inkling that the bag was actually full of
contraband. He tells the police all this and they have, let’s
say, no reason to doubt him—thus no probable cause to ar‐
rest him. Such a case was United States v. Reinholz, supra, 245
F.3d at 778–79. And it is not alone. See, e.g., United States v.
Connolly, 479 F.2d 930, 936 (9th Cir.1973) (overruled on other
grounds in United States v. Bagley, 772 F.2d 482, 490 (9th Cir.
1985)).
And what if it’s obvious to the police when they enter to
search a house that the owner is having a party, and so there
are several persons besides himself in the house or apart‐
ment? Does the search warrant authorize the police to arrest
all of them? Surely not, which is just to say that probable
cause to search a place is not automatically probable cause to
arrest everyone found there.
And even if the affidavit on the basis of which a search
warrant was issued establishes probable cause to arrest an
occupant of the home to be searched, wouldn’t it be better to
require that the magistrate have been asked to issue a war‐
rant authorizing both a search and an arrest? Isn’t that the
32 No. 15‐1896
implication of cases like Payton that in defiance of the actual
wording of the Fourth Amendment insist that ordinarily a
warrant is required not only to search a home but also to ar‐
rest a homeowner? But however these questions are an‐
swered, the important thing in the present case is that prob‐
able cause whether to search or to arrest was lacking and
thus the officers were not permitted to arrest Burritt, let
alone enter his home to arrest him.
The police report states that “after a short conversation[,]
and investigator Ditlefsen advising BURRITT that we had a
search warrant, he did invite us into his residence.” The im‐
plication is that he wanted them to enter his house. That is
absurd. Since they had a search warrant, Burritt could not
object to their entry; they needed no invitation and thus
when they say he “did invite” they mean he “did accept the
inevitable.” The majority opinion, which to its credit does
not automatically accept the proposition that a search war‐
rant always justifies the arrest of the occupant of the place
searched, plucks the “invitation” chord—“Burritt invited the
officers into his home”—without remarking the unreality of
the “invitation.” The opinion goes on to state that “when a
person with authority over the premises consents to an entry
by law enforcement, that entry is reasonable and does not
infringe on the person’s Fourth Amendment rights.” But that
is true only when the occupant can refuse consent. Consent
must be voluntary to be legally effective, see Illinois v. Rodri‐
guez, 497 U.S. 177, 181 (1990), and in this case Burritt
couldn’t refuse entry, because the search warrant gave the
officers the right to enter his house without his consent.
The issuance of a warrant signifies that a judicial of‐
ficer—a judge or magistrate—has made a determination of
No. 15‐1896 33
probable cause on the basis of an affidavit of a police officer
or a prosecutor. So there is a record, which may enable the
person arrested (or whose home is searched) pursuant to the
warrant to challenge its validity. When there is no warrant,
no documentation, just the say‐so of the police, it is very dif‐
ficult for the person arrested or whose home is searched to
prove that probable cause was lacking. After the arrest, or
after the search, the police will have no difficulty fabricating
probable cause to have made the arrest or conducted the
search. They will say they learned this or that which per‐
suaded them that the occupant was a dangerous criminal or
had contraband—maybe they’ll say they smelled marijuana
as they drove past the house in their squad car. Had they
said that in an affidavit, the judicial officer might have
thought it fishy. Cf. Johnson v. United States, 333 U.S. 10, 14–
15 (1948). That is a reason for requiring warrants. If there is
no warrant, the occupant is relegated to a civil rights suit to
establish his innocence, and such a suit may be both costly to
litigate and, given the propensity of juries to believe police
testimony, futile. The ex post remedy for a search or seizure
that lacks probable cause is thus likely to be less effective
than the ex ante precaution of submission of an application
for a warrant to a judicial officer.
Probable cause was lacking in this case, but even if it
were present I can’t think of any good reason for the failure
of Investigator Ditlefsen, if she thought there was probable
cause to arrest Burritt, to have sought an arrest warrant
along with a search warrant, or, better, because simpler, a
single warrant authorizing both search and arrest.
I would reverse the judgment of the district court.