NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 23, 2014*
Decided January 23, 2014
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 13‐2518
GERALD J. FOSTER, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of
Indiana, Fort Wayne Division.
v.
No. 1:10‐cv‐49‐RBC
JÈAN GIGLI,
Defendant‐Appellee. Roger B. Cosbey,
Magistrate Judge.
O R D E R
Gerald Foster claimed in this lawsuit under 42 U.S.C. § 1983 that Jèan Gigli, a
police officer in Fort Wayne, Indiana, violated the Fourth Amendment by arresting him
inside his home without a warrant or even probable cause. A magistrate judge,
presiding by consent, granted summary judgment to Gigli on the claim that Foster was
arrested without probable cause, and a jury rejected Foster’s testimony that the officer
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 13‐2518 Page 2
forcibly entered his home to make the warrantless arrest. On appeal Foster challenges
both outcomes. We affirm the judgment.
The facts underlying Foster’s arrest were undisputed. In December 2009 he sold
cocaine to an informant with surveillance officers watching and listening to the
transaction. Three weeks later Brian Martin, the Fort Wayne police detective who
authorized and helped surveil the drug buy, swore out a probable cause affidavit for
Foster’s arrest. Martin then told Gigli, also a detective, about the informant’s drug buy
and asked Gigli to arrest Foster. Gigli and a third detective went to Foster’s apartment
to serve him with the affidavit and arrest him for dealing cocaine in violation of IND.
CODE § 35‐48‐4‐1.
What happened next was disputed. At the apartment Gigli knocked on Foster’s
door and announced he was a police officer investigating a 9‐1‐1 hang‐up. According to
Gigli the ruse worked and caused Foster to open the door. Foster rejoined that he
shouted from inside the apartment that Gigli was at the wrong address and unlocked
the door only because the officer then threatened to break it down. At trial Gigli
testified that after Foster opened the door he made the arrest in the doorway to the
apartment (and thus in a public place, see United States v. Santana, 427 U.S. 38, 42 (1976)).
Foster countered that Gigli opened the door himself and forced his way into the
apartment to make the arrest.
Foster made incriminating statements after his arrest, and in his criminal case he
successfully moved to suppress those statements. State v. Foster, 950 N.E.2d 760, 763
(Ind. Ct. App. 2011). In state court Foster conceded that the detectives had probable
cause to arrest him, and he also said that his girlfriend, not Gigli, opened the apartment
door. Id. at 761–62. The Indiana courts concluded that Gigli violated the Indiana
constitution by employing a ruse to enter the apartment and make the arrest. Id. at 762;
see IND. CONST. ART. 1, § 11. State prosecutors then dismissed their case against Foster.
Meanwhile, Foster filed this suit alleging that Gigli’s actions violated the federal
Constitution. (Foster also named Detective Martin as a defendant, but the claims against
him were screened out by the district court, and Foster does not contest that ruling.)
After the magistrate judge granted partial summary judgment for Gigli on the
ground that the undisputed evidence established probable cause to arrest Foster, the
parties litigated several motions in limine in anticipation of trial on the remaining claim
that Gigli had forced his way into the apartment to make the warrantless arrest.
Relevant to this appeal, Gigli moved to prevent Foster from alluding to the outcome of
No. 13‐2518 Page 3
his state prosecution or testifying that he was “illegally arrested.” The officer prevailed,
and the magistrate judge said nothing to suggest that the ruling might be reconsidered
after the trial commenced. Following trial, which essentially pitted Foster against Gigli,
the jury rejected Foster’s claim that the officer unlawfully entered his apartment to
make the arrest.
On appeal, Foster first argues that the magistrate judge improperly granted
summary judgment to Gigli on his claim of unlawful arrest. But Foster did not dispute
that Gigli was aware, having been informed by Detective Martin, that Foster had sold
cocaine to an informant with Martin and other surveillance officers watching. That drug
transaction established probable cause. See United States v. Johnson, 655 F.3d 594, 601 (7th
Cir. 2011); United States v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006). And probable cause
is an absolute defense to a claim of unlawful arrest. Padula v. Leimbach, 656 F.3d 595, 601
(7th Cir. 2011); Jackson v. Parker, 627 F.3d 634, 638 (7th Cir. 2010).
Foster next argues that he should have been permitted to introduce evidence
concerning his state prosecution. For those objections that Foster properly preserved,
the record does not reveal that the magistrate judge abused his discretion. Lay
testimony offering legal opinions is improper, United States v. Noel, 581 F.3d 490, 496–97
(7th Cir. 2009); United States v. Wantuch, 525 F.3d 505, 514 (7th Cir. 2008), so it was not
error to prevent Foster from asserting this his arrest was “illegal” or testifying to the
circumstances under which a warrantless arrest is permitted, as these are legal
determinations. Moreover, we have no quarrel with the magistrate judge’s conclusion
that allowing the jury to hear that the criminal charges against Foster were dismissed
would have confused the issues in this civil suit. The state’s reasons for dismissing the
charges have little to do with whether Gigli entered Foster’s home before arresting him.
The district court, therefore, reasonably exercised its discretion to prevent introduction
of this evidence. Cf. Estate of Moreland v. Dieter, 395 F.3d 747, 755 (7th Cir. 2005).
To the extent Foster challenges the fact that the jury did not hear about the ruling
on his state‐court motion to suppress, we see nothing in the record suggesting that the
magistrate judge excluded this evidence. Rather, it appears that Foster’s counsel made a
shrewd choice not to elicit evidence about the state court’s ruling, perhaps because in
state court Foster himself had taken the position that his girlfriend had opened the door
and allowed Gigli to enter the apartment before making the arrest. Foster, 950 N.E.2d at
762. That scenario not only contradicts Foster’s testimony in this trial, but undermines
Foster’s claim of an unlawful entry: The “subterfuge” that troubled the state court,
see id., is entirely permissible under federal law, see United States v. Leung, 929 F.2d 1204,
No. 13‐2518 Page 4
1208 (7th Cir. 1991); In re John Doe Trader No. 1, 894 F.2d 240, 243 (7th Cir. 1990); United
States v. Vasiliavitchious, 919 F. Supp. 1113, 1116–17 (N.D. Ill. 1996). Indeed, Foster’s
admissions in state court that his girlfriend opened the door to Gigli and allowed the
officer to enter the apartment should have estopped Foster from asserting in federal
court that the officer had opened the door and forced his way into the house. See New
Hampshire v. Maine, 532 U.S. 742, 749–51 (2001); Butler v. Vill. of Round Lake Police Dep’t,
585 F.3d 1020, 1022–23 (7th Cir. 2009).
Foster also raises a host of evidentiary challenges for the first time on appeal.
These new challenges are waived unless plain error exists. See FED. R. EVID. 103(e);
Williams v. Dieball, 724 F.3d 957, 963 (7th Cir. 2013); Wallace v. McGlothan, 606 F.3d 410,
421 (7th Cir. 2010). It is Foster’s burden to demonstrate that “extraordinary
circumstances” exist to justify plain‐error review, see Jimenez v. City of Chicago, 732 F.3d
710, 720 (7th Cir. 2013); Estate of Moreland, 395 F.3d at 756, and he has not met that
burden. Foster also challenges the sufficiency of the evidence underlying the jury
verdict on his unlawful‐entry claim. But Foster never moved under Federal Rule of
Civil Procedure 50 for judgment as a matter of law, so his sufficiency argument is
foreclosed on appeal. See Unitherm Food Sys., Inc. v. Swift‐Eckrich, Inc., 546 U.S. 394,
400–01 (2006); Consumer Prods. Research & Design, Inc. v. Jensen, 572 F.3d 436, 437–38 (7th
Cir. 2009); Maher v. City of Chicago, 547 F.3d 817, 824 (7th Cir. 2008).
AFFIRMED.