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Beal v. Beller

United States Court of Appeals, Seventh Circuit

February 10, 2017

Charles Beal, Jr., Plaintiff-Appellant,
James Beller and Matthew Strelow, Defendants-Appellees.

          Argued Novembers 8, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12-CV-01146 - Lynn Adelman, Judge.

          Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.

          WOOD, Chief Judge.

         Most Fourth Amendment issues arise when a criminal defendant files a motion to suppress evidence allegedly collected in violation of its standards, but this is not such a case. Charles Beal, Jr., has brought a civil action under 42 U.S.C. § 1983, in which he asserts that two detectives on the Kenosha, Wisconsin, police force lacked any justification recognized by the Fourth Amendment to stop him, to frisk him, and then to conduct a more thorough search. The district court granted summary judgment for the Detectives. It found that the tip on which they acted was not anonymous, as Beal contended, and that their actions were permissible under Terry v. Ohio, 392 U.S. 1 (1968). We conclude that the critical facts were genuinely disputed, and thus we reverse and remand for further proceedings.


         The underlying facts are straightforward; we present them in the light most favorable to Beal, as we must. See Tolan v. Cotton, 134 S.Ct. 1861, 1863 (2014) (per curiam), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On September 11, 2007, Kenosha Detective Matthew Strelow received an anonymous tip that an African-American man in a yellow shirt was selling heroin on the corner of 58th Street and 11th Avenue, known as a "high crime area." Without taking any steps to corroborate the tip, Strelow and his partner, Detective James Beller, drove an unmarked car to that intersection. There they saw Beal, who matched the tipster's description, standing in a driveway talking to a woman. (It later turned out that he was at his aunt's residence and was talking to a relative.) The Detectives parked their car and walked up to Beal. They told him that they had received an anonymous tip that he was selling drugs and asked him to identify himself. He did so without objection.

         At that point Beller grabbed Beal's left wrist and Strelow frisked him. Just before Strelow began, Beal's right hand had been in his pocket. Strelow asked him to remove his hand, and Beal immediately complied. Strelow admitted that Beal's "demeanor was cooperative." As he carried out the frisk, Strelow felt an object that he recognized as a pair of keys, and he also felt what he described as a soft bulge that felt like tissue. It was immediately apparent that neither item was a weapon. Nevertheless, Strelow next emptied Beal's pocket, removed a set of keys, two bunched up tissues, a photo ID, and miscellaneous letters. He examined the keychain and an attached flashlight, which he discovered had been hollowed out and now contained four small baggies with a substance the detective believed was heroin. His examination of the tissues revealed no further drugs, but there were two empty plastic bags. Beal had no money.

         Strelow arrested Beal based on the results of the pocket search. Beal was charged with possession of heroin in state court. He moved to suppress the evidence on the ground that the Detectives had violated the Fourth Amendment by stopping him without sufficient cause, by frisking him even though there was no reason to think he was armed or dangerous, and by searching his pocket after confirming that he was unarmed. After holding a multi-day hearing on the motion, the Wisconsin court suppressed the evidence and dismissed all charges against Beal.


         Beal filed this action against Beller and Strelow under 42 U.S.C. § 1983 on October 19, 2012, comfortably within the six-year period that applies to cases in Wisconsin. See Wis.Stat. § 893.53; Malone v. Corrections Corp. of Am., 553 F.3d 540, 542 (7th Cir. 2009). He verified his complaint, swearing that the account it contained of the relevant events was "accurate and true ... subject to the penalty of perjury" Later he filed an amended complaint, which also was verified under penalty of perjury. Beller and Strelow (to whom we refer collectively as the Detectives unless the context requires otherwise) filed a motion for summary judgment on the basis of qualified immunity. Beal initially had some problems obtaining the records from his suppression hearing, but he ultimately received them and submitted them in opposition to the motion. This was not enough, however, to stave off defeat. Going beyond the qualified immunity ground the Detectives had asserted, the district court granted summary judgment for them on the ground that "no reasonable jury could find that plaintiff's Fourth Amendment rights were violated" at all. (This finding risked labeling the state court as unreasonable, given the fact that the state court had made precisely this finding when it granted Beal's motion to suppress. But we do not rest our decision on this uncomfortable point.)

         In its opinion, the district court made a number of critical assumptions, all unfavorable to Beal. For example, it said that "Beller knew who the informant was and that the informant had previously provided other officers in the police department with reliable information." Describing the Detectives' arrival at the house, the court said that "Plaintiff saw the officers. He made eye contact with Strelow and immediately put his hand in his right front pocket and turned as if to walk away." With respect to the pat-down search, the court accepted that Strelow "believed the soft bulge [he felt] was a number of individually wrapped packages of narcotics wrapped in tissue paper." Based on that account of the facts, the court concluded that the Detectives had reasonable suspicion, for Terry purposes, to detain Beal briefly and to frisk him. The results of that frisk, it continued, provided probable cause for Beal's arrest. Those findings, taken together, were enough to doom Beal's section 1983 case. With the help of recruited counsel, whose efforts the court greatly appreciates, Beal has appealed.


         The most important question on this appeal is whether the undisputed facts showed that the tip on which the Detectives acted came from a known source, or if there is a genuine dispute of fact over the question whether the source was anonymous. This is critical, because if the tip was anonymous, then the rule of Florida v. J.L., 529 U.S. 266, 268 (2000), which holds that an anonymous tip without more does not justify a stop-and-frisk, ...

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