In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2187
MONTELL CARTER, MICHAEL LOPEZ, and MILWAUKEE POLICE
ASSOCIATION,
Plaintiffs‐Appellants,
v.
CITY OF MILWAUKEE and KEITH ECCHER,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 10 CV 00782 — Patricia J. Gorence, Magistrate Judge.
____________________
ARGUED NOVEMBER 8, 2013 — DECIDED FEBRUARY 19, 2014
____________________
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. While police officers were exe‐
cuting a search warrant in a Milwaukee apartment, the
apartment’s resident accused the police of taking around
$1750 of his cash. The commanding officer then ordered all
officers to remain on the scene while they awaited further
direction. This order did not come at a good time for Officer
Montell Carter, who had taken a colon cleansing product
2 No. 13‐2187
outside the apartment and now needed to use the restroom,
badly. Not wanting to use the apartment’s bathroom, Carter
told then‐Lieutenant Keith Eccher he needed to leave to use
the restroom. The lieutenant put his hand up and responded
that he needed to search Carter first. The lieutenant then pat‐
ted Carter down and searched his jacket, boots, and the
items he was carrying. The dramatic ending to these events
is, in fact, not dramatic at all. The lieutenant did not find the
allegedly missing cash or any contraband on Carter, and
Carter returned to the police station and used the restroom
there. Carter filed this lawsuit maintaining he was the sub‐
ject of an unconstitutional seizure and search. Because no
reasonable officer in Carter’s position would have feared ar‐
rest or detention if he did not comply with the search re‐
quest, we conclude he was not seized. As a result, we affirm
the district court’s grant of summary judgment in the de‐
fendants’ favor.
I. BACKGROUND
When he was called to the scene of a search warrant exe‐
cution the afternoon of February 26, 2009, Montell Carter
had been a police officer with the Milwaukee Police Depart‐
ment for nearly thirteen years. On that day, Officer Carter
and other officers were stationed outside a residence while
Tactical Enforcement Unit team members went inside to en‐
sure there was no threat to the officers who would perform
the search. Carter was outside for about twenty to thirty
minutes before the tactical unit announced that all was clear.
Officer Carter had been taking Colonix, a non‐
prescription supplement to clean his colon, for about two
weeks in an effort to lose weight. He did not, however, take
the supplement at his normal time before leaving home for
No. 13‐2187 3
his shift that day because he had been running late. Thinking
he would not be needed in the residence right away, Carter
returned to his squad car after the tactical unit gave the all
clear, mixed the Colonix with water, and drank it. He did so
knowing that taking Colonix made him need to more fre‐
quently use the restroom.
Officer Carter and other officers entered the residence
dressed in police uniform to search for drugs and currency.
Tactical enforcement officers were still leaving the residence
while the officers entered. Carter and his partner, Officer Mi‐
chael Lopez, helped search the northwest bedroom. At some
point, the apartment’s resident, Mr. Mitchell (his first name is
not clear from the record), told Officer Jose Viera that $1750
or $1800 in cash was missing from his bedroom. Mitchell
said he had been sitting in his bedroom counting his money
when the “guys with helmets” entered. Mitchell said he then
threw the money on the floor next to him.
Following Mitchell’s allegation, Officer Viera contacted a
supervisor by telephone, who told Viera to “freeze every‐
thing” until representatives from the Police Department’s
Professional Performance Division (“PPD”) or other supervi‐
sors arrived. As a result, the officers on the scene were in‐
formed they were not free to leave.
About thirty to forty‐five minutes later, a sergeant ar‐
rived. Lieutenant Keith Eccher, who had run the command
post at the scene but left after the tactical squad secured the
residence, also returned to the apartment. Eccher was the
highest ranking officer at the site. A sergeant informed Ec‐
cher of the resident’s allegation and told him there was an
opportunity for all the tactical squad or search team mem‐
4 No. 13‐2187
bers to have taken the money. Eccher contacted the PPD, and
he informed the officers on site that PPD was on its way.
Feeling the effects of the supplement he had taken and
sweating profusely, Officer Carter approached Lieutenant
Eccher in the kitchen of the residence and told him he need‐
ed to leave as he needed to use the bathroom very badly.
Carter maintains he did not want to use the bathroom in the
residence because of its very dirty condition. He also asserts
that even in a clean house, he would not feel comfortable us‐
ing someone else’s restroom. (The parties do not point to any
Department policy on point.)
Lieutenant Eccher put his hand up, with his palm
straight out, and said in a firm voice to Officer Carter, “You
can’t leave until I search you.” Eccher did not come into any
contact with Carter when he put his hand up. Eccher di‐
rected Carter to take off his police coat, outer vest carrier,
and duty belt, which held his firearm. Eccher patted down
Carter; in doing so, he did not pat down Carter’s genital area
but did pat down his back pockets. Eccher searched Carter’s
jacket, including its pockets, looked in Carter’s wallet and
police memo book, and searched his duty belt. Eccher also
had Carter remove his boots and searched those.
Lieutenant Eccher did not take Officer Carter’s badge or
police identification. Nothing out of the ordinary was found
on Carter, and his duty belt and firearm were returned to
him. Officer Lopez told Eccher he wished to leave also, and
Eccher responded, “Well, I gotta search you, too.” Lopez told
Eccher that he was not going to take his boots off, and Ec‐
cher did not make him do so. Eccher then patted down
Lopez, finding nothing. The searches took place inside the
kitchen, where Eccher, a sergeant, Carter, and Lopez were
No. 13‐2187 5
present at the time. Apartment residents could see the search
as well, with Eccher explaining the search took place in plain
view in front of the residents to remove any suspicion.
With no protocol specific to searching officers in an of‐
ficer‐involved allegation, Lieutenant Eccher explained that
he searched Officers Carter and Lopez after they asked to
leave the scene because they had “means and access to the
missing money,” stated they needed to leave to go to the
bathroom as soon as they learned that PPD Criminal was
coming, and to remove them from suspicion. After they were
searched, Carter and Lopez left the residence together and
returned to the district police station, where Carter used the
restroom. Later, after PPD Criminal arrived, another officer,
Officer Rachel Goldbeck, was allowed to leave the scene to
use the restroom without being searched.
Officers Carter and Lopez filed a lawsuit pursuant to 42
U.S.C. § 1983 alleging that Eccher and the City of Milwaukee
violated the Fourth Amendment by illegally seizing and
searching them. The district court granted the defendants’
motion for summary judgment.
II. ANALYSIS
Officer Carter contends he was the subject of an unconsti‐
tutional seizure and search. He maintains that he was seized
when Lieutenant Eccher held his hand out and told him that
he had to be searched if he wished to leave the premises. We
review the district court’s grant of summary judgment de
novo, viewing evidence in the record in the light most favor‐
able to the non‐moving party, plaintiff Officer Carter, and
giving him the benefit of all reasonable inferences. See Swet‐
lik v. Crawford, 738 F.3d 818, 821 (7th Cir. 2013).
6 No. 13‐2187
The Constitution forbids not all searches and seizures,
but only “unreasonable searches and seizures.” U.S. Const.
amend. IV; Terry v. Ohio, 392 U.S. 1, 9 (1968). A “seizure”
within the meaning of the Fourth Amendment occurs when
a person’s “freedom of movement is restrained” either “by
means of physical force or show of authority.” United States
v. Mendenhall, 446 U.S. 544, 552 (1980). “If a reasonable per‐
son would feel free to terminate the encounter, then he or
she has not been seized.” United States v. Drayton, 536 U.S.
194, 201 (2002). In considering whether there was a seizure,
we “consider all the circumstances surrounding the encoun‐
ter to determine whether the police conduct would have
communicated to a reasonable person that the person was
not free to decline the officers’ requests or otherwise termi‐
nate the encounter.” Florida v. Bostick, 501 U.S. 429, 439
(1991).
It is true that the Fourth Amendment protects police of‐
ficers, not just ordinary citizens. Garrity v. New Jersey, 385
U.S. 493, 500 (1967). “This does not mean, however, that eve‐
ry order a police officer feels compelled to obey amounts to a
seizure.” Gwynn v. City of Phila., 719 F.3d 295, 300 (3d Cir.
2013). Nothing in the Fourth Amendment gives public em‐
ployees, including police officers, greater workplace rights
than private sector employees. Driebel v. City of Milwaukee,
298 F.3d 622, 637 (7th Cir. 2002). As in the private sector, pub‐
lic employees must often comply with their supervisors’ or‐
ders and can suffer consequences at work for failure to com‐
ply. Id. at 639. The requirement of complying with supervi‐
sors’ directives has particular meaning for police officers,
who are part of a “paramilitary organization that must main‐
tain the highest degree of discipline, confidentiality, efficien‐
cy, and [esprit] de corps among its officers, who are the first
No. 13‐2187 7
line of defense against lawlessness,” and who agree to obey
lawful orders from higher‐ranking officers. Id. at 638‐39.
In this spirit, we have distinguished “between a police
department’s actions in its capacity as an employer and its
actions as the law enforcement arm of the state.” Id. at 642.
The Fourth Amendment does not protect against the threat
of job loss. See id.; see also Fournier v. Reardon, 160 F.3d 754,
757 (1st Cir. 1998) (finding officer not seized when hand‐
cuffed during training exercise even though there could
have been negative employment consequences had he re‐
fused). So while an officer in Carter’s position may have
feared job‐related consequences if he were to leave the resi‐
dence without being patted down and searched, the poten‐
tial for work‐related discipline is not sufficient to succeed on
a Fourth Amendment claim.
Rather, “the relevant constitutional inquiry must focus on
whether reasonable people in the position of the subordinate
officers would have feared seizure or detention if they had re‐
fused to obey the commands given by their superior offic‐
ers.” Driebel, 298 F.3d at 642 (emphasis in original). In this
regard, it is not enough that Carter’s employer restricted his
movement; indeed, he does not maintain that the “freeze the
scene” order meant he or other officers were seized. See
I.N.S. v. Delgado, 466 U.S. 210 (1984). Illustrative of this prin‐
ciple is the Supreme Court’s decision in Delgado, where it
considered the Immigration and Naturalization Service’s
practice of entering factories and questioning employees
about their citizenship while INS agents were stationed near
door exits. The Court recognized that the employees may
not have been free to leave, but it said that was not enough
to violate the Fourth Amendment: “[o]rdinarily, when peo‐
8 No. 13‐2187
ple are at work their freedom to move about has been mean‐
ingfully restricted, not by the actions of law enforcement of‐
ficials, but by the workers’ voluntary obligations to their
employers.” Id. at 218. The Court concluded the employees
were not seized because even though they were not free to
leave the building without being questioned, the agents’
conduct “should have given [the employees] no reason to
believe that they would be detained if they gave truthful an‐
swers put to them or if they simply refused to answer.” Id.
The defendants contend that Officer Carter similarly had no
reason to believe he would be detained had he stated he did
not want to be searched.
This is not the first time we have considered an officer’s
claim that he was seized while on the job; we considered
several claims of unlawful seizure by officers in our Driebel
decision. For example, when an officer was ordered to work
overtime and “stand by” for three and a half hours in a po‐
lice garage without being placed under formal arrest and
while he retained possession of his police‐issued equipment,
we found he was not seized. 298 F.3d at 642‐43. We ex‐
plained that the officer “must have been aware that no of‐
ficer was permitted to use force or any show of authority to
prevent him from departing the garage if he so chose.” Id. at
643; see also Pennington v. Metro. Gov’t of Nashville and Da‐
vidson Cnty., 511 F.3d 647, 652 (6th Cir. 2008) (concluding that
an off‐duty officer who submitted to a breathalyzer test at
his superiors’ order was not seized when he was not hand‐
cuffed, not placed in the back seat of a police car, not read
his rights, and was allowed to return home without filing a
report). But when the officer was advised of his rights, taken
into custody, and removed of his police equipment, we ruled
that he had been seized. Id.; cf. Cerrone v. Brown, 246 F.3d 194,
No. 13‐2187 9
198 (2d Cir. 2001) (noting concession by defendants that of‐
ficer seized when stopped by investigative team, placed in
back of unmarked police car, read Miranda rights, and in‐
formed he was the target of a criminal investigation).
The Third Circuit’s decision in Gwynn contains circum‐
stances similar to this case. There, a man whom two police
officers had frisked accused them of stealing money from
him. Gwynn, 719 F.3d at 297. When the officers returned to
headquarters, their superior officer ordered them into an of‐
fice, where they were told a complaint had been made about
them to the Internal Affairs Bureau. They were then ordered
to report to the captain’s office and to stay there until officers
from Internal Affairs arrived, and they were not allowed to
use their cell phones. The officers were questioned about the
missing money, asked to remove their jackets, told to pull
down their socks, directed to open their wallets, and told
that cooperation would be in their “best interest.” They did
as they were told the whole time because the orders came
from their superiors, and also because they feared discipline
and possible loss of employment. Id. at 298. When the offic‐
ers were allowed to leave and returned to their lockers, it
appeared that their lockers had been searched. Id.
The Third Circuit concluded that the officers had not
been seized. Id. at 302. It reasoned that to the extent the offic‐
ers felt compelled to obey their superiors’ commands, that
compulsion was the result of their employment relationship,
not the fear of arrest or detention. Id. The court found no
suggestion that the officers were under a criminal investiga‐
tion, and it pointed out that the officers were asked to wait to
speak to Internal Affairs representatives. Under the circum‐
10 No. 13‐2187
stances, the court found the officers did not reasonably fear
detention and were not seized. Id.
Similarly here, no seizure occurred. Although Carter con‐
tends he was under criminal investigation, the record does
not support him. Carter asserts that Eccher admitted in his
deposition that Carter was under criminal investigation. But
a full read of the deposition transcript reflects otherwise.
When asked whether Carter was under internal or adminis‐
trative investigation, Eccher initially stated that it was a
criminal investigation as far as he was concerned. But Eccher
then qualified his statement, stating, “Well, there [were]
criminal allegations being made.” When he was next explic‐
itly asked to say that “yes,” Carter was under criminal inves‐
tigation, Eccher replied that he could not answer “yes” or
“no.” He later explained, “Again, I guess I’m walking a fine
line here. I don’t think this was an investigation as much as it
was – as – I was trying to remove them from suspicion.” Ec‐
cher did not, therefore, testify in his deposition that Carter
was under criminal investigation. Nor is there any other
suggestion in the record to support that position. Eccher did
not read Carter his rights or inform him he was under crimi‐
nal investigation. Eccher did not perform other activities
consistent with a criminal investigation such as interviewing
witnesses. Instead, at the time, Eccher was in a holding pat‐
tern, waiting for PPD to arrive.
While Carter is not maintaining that he feared only job
consequences, the bottom line is that a reasonable person in
Carter’s position would not have feared arrest or detention if
he had declined to be patted down or searched. Cf. Feirson v.
District of Columbia, 506 F.3d 1063, 1067 (D.C. Cir. 2007) (“The
relevant inquiry is whether a reasonable person would have
No. 13‐2187 11
believed he would be detained if he disobeyed his supervi‐
sorʹs order—not whether he feared negative consequences
for his job.”). As we discussed, Eccher did not tell Carter he
was the subject of a criminal investigation, nor is there any
indication that he was. He did not read Carter his rights. He
did not threaten arrest if Carter refused to be searched. He
did not touch Carter to stop him from leaving. (He only
came into contact with Carter during the pat‐down.) There is
also no evidence to support a finding that had Carter asked
him to stop, the lieutenant would not have done so. In fact,
when Officer Lopez told Lieutenant Eccher he would not
take his boots off, the lieutenant did not make him do so.
Carter was a thirteen‐year veteran of the police force and
certainly knew his constitutional rights. Cf. Driebel, 298 F.3d
at 647 (“Officer Huston was not some naïve, awestruck indi‐
vidual confronting the police for the first time. Rather, he
was a sworn, highly trained law enforcement officer, who,
we believe, was well aware of his constitutional and work‐
place rights.”). Carter and Lopez agreed to be searched so
that Carter could return to the police station to use the re‐
stroom there. And Lieutenant Eccher agreed to let them
leave despite the freeze order, so long as they were searched
first. Although Carter may have felt it necessary to agree to
the search because he needed to use the restroom badly, that
does not mean he was seized by Eccher. A reasonable officer
in Carter’s position would not have feared arrest or deten‐
tion had he not complied. Therefore, we agree with the dis‐
trict court that Carter was not seized.
Carter’s only argument that the search was unlawful is
that because his seizure was unlawful, the search was pre‐
sumptively unlawful too. Because we have rejected the
12 No. 13‐2187
premise of this position in finding that Carter was not
seized, we do not need to go further. We uphold the grant of
summary judgment in the defendants’ favor.1 We note that
Officer Lopez was a plaintiff in this lawsuit, and his name
appears on the appellate brief. But no argument was raised
regarding him on appeal, so any argument on his behalf is
waived. See Carroll v. Lynch, 698 F.3d 561, 568 (7th Cir. 2012).
In any event, he would lose for the same reasons as Officer
Carter.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
1 We note that the defendants maintain that conducting the pat‐down
and search of the items in Officer Carter’s possession before letting
Carter leave was reasonable. In light of the resident’s allegation that an
officer had taken his money and Carter’s request to leave during the
freeze order, Eccher explained that he searched Officers Carter and
Lopez for several reasons, including to remove them from suspicion. He
also explained that they had means and access to the money. Carter and
Lopez had searched the northwest bedroom, the same room from which
Mitchell alleged his money had been taken, and they had performed the
search without a supervisor present. Carter emphasizes that the resident
alleged that a white male officer with a helmet stole his money. Carter,
unlike the tactical enforcement officers, was not wearing a helmet, and
Carter is African American. But Carter crossed paths with the tactical
enforcement officers on his way into the residence, so there was an op‐
portunity for a tactical enforcement officer to pass money on to one or
more officers involved in the search. Eccher also stated that Carter and
Lopez did not say they needed to leave to use the restroom until they
learned that PPD Criminal was coming.
Montell Carter v. City of Milwaukee
Court: Court of Appeals for the Seventh Circuit
Date filed: 2014-02-19
Citations: 743 F.3d 540
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