Novembers 8, 2016
from the United States District Court for the Eastern
District of Wisconsin. No. 12-CV-01146 - Lynn Adelman, Judge.
WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.
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.
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
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.
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.
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.)
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.
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, ...