Russell, Tracy v. Harms, Bryan

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 04-2065
TRACY RUSSELL and JENNIFER DAVIS,
Plaintiffs-Appellants,
v.

BRYAN HARMS, individually and in his official capacity
as an officer of the Illinois State Police; J. DUSTIN KING,
individually and in his official capacity as an officer of
the Illinois State Police; and DOUG MAIER, individually
and in his official capacity as an officer of the White
County Sheriff’s Department,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 02 C 4160—J. Phil Gilbert, Judge.
____________
ARGUED NOVEMBER 3, 2004—DECIDED FEBRUARY 2, 2005
____________

Before FLAUM, Chief Judge, and EASTERBROOK and SYKES,
Circuit Judges.
FLAUM, Chief Judge. Tracy Russell and Jennifer Davis
filed this suit under 42 U.S.C. § 1983, alleging that Illi-
nois State Police Officers Bryan Harms and J. Dustin King,
and White County Sheriff’s Department Officer Doug Maier
violated their rights under the Fourth Amendment to the
2 No. 04-2065

United States Constitution. The district court granted
summary judgment in favor of defendants, and Russell and
Davis appealed. Because we conclude that plaintiffs have
failed to establish a Fourth Amendment violation as a
matter of law, we affirm.

I. Background
In the summer of 2000, Officer Harms was contacted
by Martin Bayley, the vice president of a company that
owns several Circus Video movie rental stores. Bayley
informed Harms that he suspected that one of his employ-
ees was stealing merchandise from a Circus Video store
in Norris City, Illinois. Bayley advised that he believed that
the culprit was Tracy Russell, a manager who had unregu-
lated access to the store’s VHS and video game inventory.
According to Bayley, he had discovered that Russell and her
roommate, Jennifer Davis, were selling hundreds of
videocassettes and Nintendo N64 video games via the
online auction site eBay under the username “TJ198.”
Harms and other members of the Illinois State Police
investigated Bayley’s claims by logging on to eBay, posing
as ordinary buyers, and bidding on a pack of 100 videotapes
offered for sale by TJ198. After winning the auction, the
officers were directed by TJ198 to send payment to Jennifer
Davis at a post office box in Norris City, Illinois. The
cashier’s check mailed to that address was returned
endorsed “Jennifer Davis.” The tapes shipped by TJ198
arrived in two boxes. Someone had written “For Circus” in
ink on the side of one of the boxes. Harms and Circus Video
director of operations Bob Polcalri examined the tapes,
finding that many were labeled with tags, bar codes, or
other stickers identical to those used by Circus Video.
It appeared that stickers of like shape and placement had
been peeled off several other tapes.
On August 10, 2000, Harms applied for a warrant to
No. 04-2065 3

search the house where both Russell and Davis live. The
complaint supporting the application for the warrant
detailed the investigation as described above, and stated
that, according to Bayley, Russell had no legal right to
possess the tapes or video games, and had not purchased
any movies from Circus Video’s corporate parent or its
suppliers. The complaint asserted that Russell and Davis
would need unlimited, confidential access to a computer
to manage the suspected high volume of transactions and to
stay in constant communication with online bidders. The
complaint alleged that this type of access would be available
only at the suspects’ house.
At 2:23 P.M. that day, a White County Circuit Court judge
issued a warrant authorizing the police to search plaintiffs’
home and seize the following:
Video tapes
Nintendo games
Written records of sales
Computer
Computer documents
Bank records
Email records relating to E-bay auctions
Financial records relating to E-bay auctions
(App. A23.)
Harms, King, Maier, and other officers executed the
warrant that afternoon. Russell and Davis were home at
the time of the search. The officers discovered boxes
containing hundreds of videocassettes and Nintendo games.
They also found CDs, DVDs, and non-Nintendo games and
equipment. Some were commingled in the boxes with the
VHS tapes and N64 games; others were located nearby. The
officers seized all of these media items plus a wide range of
documents found in the house.
Harms and King arrested Russell and took her to the
police station for questioning. They returned her to her
4 No. 04-2065

house a few hours later. The officers subsequently arrested,
questioned, and then released Davis.1 Defendants contend
that, while being questioned, Davis signed a written
consent form authorizing the police to search a storage unit
that she had rented in the nearby town of Carmi, Illinois.
The next day, the officers searched the unit and seized all
of its contents, including 135 boxes containing VHS tapes,
Nintendo games, non-Nintendo games, CDs, and a popcorn
machine.
On October 11, 2000, the White County State’s Attorney
filed informations charging Russell and Davis with felony
theft. On February 25, 2002, however, the prosecutor
dropped the charges after both suspects passed polygraph
tests supporting their assertion that they had obtained
the tapes lawfully, and had no part in the theft of any
merchandise from Circus Video.2 Plaintiffs’ property was
returned to them in March of 2002.
On August 9, 2002, Russell and Davis filed this action
in the Southern District of Illinois under § 1983, alleging
that the officers had violated their Fourth Amendment
rights. Plaintiffs’ complaint also raised supplemental state
law claims of conversion, unreasonable intrusion upon
seclusion, and violations of the Illinois Constitution. After
discovery closed, the district court granted summary
judgment in favor of defendants on the Fourth Amendment
claim. The court held that the officers had not violated the
federal constitution as a matter of law, and in the alter-
native were protected by qualified immunity. It declined
to exercise supplemental jurisdiction and dismissed the
state-law claims without prejudice. Russell and Davis

1
King took no part in arresting or questioning Russell or Davis.
2
Russell and Davis allege that they obtained the tapes legiti-
mately at Circus Video store closing sales and from low-cost
retailers. Defendants do not dispute this.
No. 04-2065 5

appeal only the district court’s grant of summary judgment
in favor of defendants on the Fourth Amendment claim, and
do not challenge its dismissal of the state-law claims.

II. Discussion
Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “In evaluating the district court’s decision, we
‘must construe all facts in the light most favorable to
the non-moving party and draw all reasonable and jus-
tifiable inferences in favor of that party.’ ” Morfin v. City
of East Chicago, 349 F.3d 989, 996-97 (7th Cir. 2003)
(quoting Conley v. Village of Bedford Park, 215 F.3d 703,
708 (7th Cir. 2000)). We review the district court’s grant
of summary judgment de novo. Id. at 996. In assessing
plaintiffs’ § 1983 claim, we must determine at the threshold
whether the facts viewed in their favor establish a violation
of the Fourth Amendment. Saucier v. Katz, 533 U.S. 194,
201 (2001). Only if we answer that question in the affirma-
tive do we address whether the officers are protected by
qualified immunity. Id.
Russell and Davis contend that the officers violated
their rights by: (i) searching plaintiffs’ house pursuant to a
warrant unsupported by probable cause; (ii) executing a
warrant that lacked particularity; (iii) exceeding the
scope of the search warrant; (iv) seizing plaintiffs unlaw-
fully; and (v) searching Davis’s storage locker without
consent. We address these arguments in turn.
6 No. 04-2065

A. Probable Cause
The Fourth Amendment demands, among other things,
that “no Warrants shall issue, but upon probable cause.”
U.S. Const. amend. IV. Russell and Davis contend that the
warrant to search their house was not supported by proba-
ble cause, and that any reasonable officer would have
recognized this. Plaintiffs argue that the complaint in
support of the warrant cannot sustain a finding of prob-
able cause because it does not allege that anything had
been stolen. They reason that because it is not unlawful per
se to possess or sell videotapes or games, the failure
to allege that a crime occurred is a missing link that fatally
undermines the warrant.
As an initial matter, plaintiffs mischaracterize the record.
The complaint seeks “evidence of the offense of Theft,” and
states that “Bayley advised that Russell has no legal right
to any Circus Video VHS movies or N64 games,” and had
“not purchased any VHS or N64” games from Circus Video’s
parent corporation or its suppliers. Thus, the complaint
clearly alleges that a crime has occurred. Plaintiffs’ strained
reading ignores the requirement that “affidavits for search
warrants . . . be tested and interpreted by magistrates and
courts in a commonsense and realistic fashion.” United
States v. Ventresca, 380 U.S. 102, 108 (1965).
Viewing the complaint as a whole, it clearly establishes
probable cause to search plaintiffs’ house. A complaint
supports a finding of probable cause when it “sets forth
sufficient evidence to induce a reasonably prudent person to
believe that a search will uncover evidence of a crime.”
United States v. Peck, 317 F.3d 754, 756 (7th Cir. 2003).
“[P]robable cause requires only a probability or chance
of criminal activity, not an actual showing of such activity.”
Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983).
The complaint in support of the warrant relied on infor-
No. 04-2065 7

mation from Bayley, a known, credible witness whose
allegations had been corroborated by the police. Bayley
advised that Russell’s position as store manager gave her
the opportunity to steal inventory from Circus Video
without being detected, and that she and her roommate
were selling hundreds of videotapes and Nintendo games
online. The police independently confirmed that Russell’s
roommate, Davis, was selling large quantities of videotapes
online, and that some of these tapes appeared to have been
obtained from Circus Video. The police had been advised by
a reliable witness that Russell had not purchased or legally
obtained Circus Video merchandise. They also knew that
Davis needed access to a computer to participate in the
online auctions. Given the high volume and frequency of
these sales, the officers were reasonable to believe that they
would find this computer in the suspects’ house. In short,
the complaint lays out evidence that would lead a prudent
person to believe that a search of plaintiffs’ home would
uncover evidence of theft. The fact that the officers may
have turned out to be wrong does not undermine this
conclusion. See Beauchamp v. City of Noblesville, Ind., 320
F.3d 733, 743 (7th Cir. 2003) (probable cause determination
is based upon only those facts known to the police when
they apply for the warrant).

B. Particularity
The Fourth Amendment also requires that warrants
“particularly describ[e] the . . . things to be seized.” U.S.
Const. amend. IV. Russell and Davis argued to the district
court that the warrant fell far short of this particularity
requirement because it did not catalogue the individual
movie and game titles allegedly stolen from Circus Video.
On appeal, plaintiffs contend that the warrant is insuffi-
ciently particular because it would not enable an officer
reading it to differentiate between those items subject to
the warrant and property lawfully possessed by Russell and
8 No. 04-2065

Davis. They also assert that it placed no meaningful limits
on the category of documents that might be seized.
None of these arguments are meritorious. “Although the
[F]ourth [A]mendment requires that a search warrant de-
scribe the objects of the search with reasonable specific-
ity, it need not be elaborately detailed.” United States v.
Jones, 54 F.3d 1285, 1290 (7th Cir. 1995) (quoting United
States v. Somers, 950 F.2d 1279, 1285 (7th Cir. 1991)). “The
level of specificity must be such . . . that the officers execut-
ing the warrant are able to identify the things to be seized
with reasonable certainty.” Id. (quoting United States v.
Sleet, 54 F.3d 303, 307 n.1 (7th Cir. 1995)). “If detailed
particularity is impossible, generic language is permissible
if it particularizes the types of items to be seized.” United
States v. Hall, 142 F.3d 988, 996 (7th Cir. 1998). The police
had reason to believe that Russell and Davis had stolen
hundreds of videos and games. Under the circumstances, it
would have been impractical to list each title individually.
The warrant accommodated this reality by specifying that
“Video tapes” and “Nintendo games” be seized. And because
the universe of movies and games is so large, it was imprac-
tical to list the titles not suspected of being stolen. The
warrant gave the officers as much guidance as was feasible.
See United States v. Vitek Supply Corp., 144 F.3d 476, 481
(7th Cir. 1998) (warrant directing seizure of “tainted animal
feed” and “any and all misbranded drugs to include
clenbuterol and any of its derivatives” held sufficiently
particular “[b]ecause the warrant could not have better
informed the agents how to distinguish between legal and
illegal substances”).
Nor was the language so broad as to amount to a general
warrant to seize any document found on the premises, as
plaintiffs contend. The warrant authorized the seizure of
“Written records of sales[,] . . . Computer documents[,] Bank
records[,] Email records relating to E-bay auctions,” and
“Financial records relating to E-bay auctions.” Despite the
No. 04-2065 9

difficulties inherent in specifying the types of documents to
be seized, see Vitek, 144 F.3d at 481, each category named
in the warrant had a direct relationship to the suspected
crime. The warrant therefore satisfied the Fourth Amend-
ment’s requirement of particularity.

C. The Scope of the Seizure
Russell and Davis also contend that the officers violated
their rights by exceeding the scope of the warrant. In
addition to those items specifically enumerated in the
warrant, the officers seized DVDs, CDs, blank videotapes,
and non-Nintendo brand video games. We conclude that this
seizure, although broad, was constitutionally permissible.
An officer executing a search warrant may seize: (i) items
named in the warrant; and (ii) evidence that, although not
described in the warrant, is subject to seizure under the
plain view doctrine. Hessel v. O’Hearn, 977 F.2d 299, 302
(7th Cir. 1992). The plain view doctrine applies “if the
officer has a legal right to be in the place from where he
sees the object subject to seizure[, ] a ‘lawful right of access
to the object itself,’ and if the object’s incriminating nature
is ‘immediately apparent.’ ” United States v. Cotnam, 88
F.3d 487, 495 (7th Cir. 1996) (quoting United States v.
Berkowitz, 927 F.2d 1376, 1388 (7th Cir. 1991)). The
incriminating nature of an object is “immediately apparent”
if, under the circumstances, the officer has “probable cause
to believe that the item is linked to criminal activity.”
United States v. Bruce, 109 F.3d 323, 328 (7th Cir. 1997).
The media items not specified in the warrant were validly
seized pursuant to this doctrine. The warrant gave the
officers a legal right to enter plaintiffs’ house. See Horton v.
California, 496 U.S. 128, 135-36 (1990). Defendants discov-
ered the property in question while searching those areas
where they were likely to find the items expressly named in
the warrant. Thus, the officers had a lawful right of access
10 No. 04-2065

to the property. And under the circumstances, defendants
had probable cause to believe that the items they seized
were evidence of a crime. At the time the officers applied for
the warrant, they had reasonable grounds to suspect that
Russell and Davis were stealing hundreds of VHS movies
and Nintendo N64 video games from Circus Video and
selling these items online. The officers were justified in
believing that incriminating evidence would be discovered
in plaintiffs’ house. Their suspicions were further supported
when, upon executing the warrant, they discovered hun-
dreds of videocassettes and Nintendo games.3 Some of the
CDs, DVDs, and non-Nintendo brand games were found in
the same boxes as the items specifically named in the
warrant. Others were found nearby. In light of the volume
of the suspected thefts, the location where these items were
found, and their similarity to the categories of items named
in the warrant, the officers reasonably believed that they
were evidence of theft.
Russell and Davis also contend that the officers blatantly
exceeded the scope of the warrant by seizing “every scrap of
paper” found in their house. Plaintiffs did not adequately
raise this argument below. They argued to the district court
that the warrant was insufficiently particular, and that a
vague warrant potentially would allow for the seizure of any
type of document. They did not assert, however, that the
officers had seized all documents in the house. Other
portions of plaintiffs’ summary judgment filings resolve any
doubt about what they argued below. Their memoranda
opposing summary judgment asserted that the officers had
exceeded the scope of the warrant by seizing “all DVDs, all
CDs, and all non-Nintendo equipment and games

3
Although this evidence is irrelevant to whether the warrant was
supported by probable cause, it bears directly upon whether the
officers were justified in seizing additional items found during the
course of the search.
No. 04-2065 11

(Playstation, Sega, Gameboy, etc.),” (R. 59 at 8; see also id.
at 17; R. 38 at 8, 17), but did not complain of the seizure of
records. Under the circumstances, plaintiffs did not suffi-
ciently alert the district court of the factual basis of their
claim. “[A] party opposing a summary judgment motion
must inform the trial judge of the reasons, legal or factual,
why summary judgment should not be entered. If it does
not do so, and loses the motion, it cannot raise such reasons
on appeal.” Sanders v. Village of Dixmoor, 178 F.3d 869, 870
(7th Cir. 1999) (quoting Liberles v. County of Cook, 709 F.2d
1122, 1126 (7th Cir. 1983)). Accordingly, this argument is
forfeited.

D. Arrest of Plaintiffs
Plaintiffs assert that their arrests violated the Constitu-
tion. Their first argument in support of this claim is that
the officers entered their home pursuant to an invalid
search warrant. But as we have already explained, the
warrant was valid. Second, plaintiffs contend that an officer
may arrest a suspect in her home only while executing a
valid arrest warrant. Because the police held a search
warrant rather than an arrest warrant, plaintiffs claim
their arrest was unlawful.
In Payton v. New York, 445 U.S. 573 (1980), the Supreme
Court held that the Fourth Amendment “prohibits the
police from making a warrantless and nonconsensual entry
into a suspect’s home in order to make a routine felony
arrest.” Id. at 576. It went on to note that “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.” Id. at 603. Payton did not hold, however, that an
arrest warrant is the exclusive basis upon which police may
arrest a suspect in her home. The Court noted that an
arrest warrant would suffice in response to an argument
12 No. 04-2065

raised by the government that requiring a search warrant
under those circumstances would impose an unreasonable
burden upon law enforcement. Id. at 602. If anything,
Payton suggests that officers in possession of a search
warrant have gone above and beyond what the Fourth
Amendment requires before they may arrest a resident in
her home. Several of our fellow Circuits have read Payton
this way, finding a search warrant sufficient in these
circumstances. See United States v. Winchenbach, 197 F.3d
548, 553 (1st Cir. 1999) (police may arrest an individual in
her home without an arrest warrant “as long as they are
lawfully on the premises (by reason, say, of a search
warrant) and probable cause exists”); Mahlberg v. Mentzer,
968 F.2d 772, 775 (8th Cir. 1992); Jones v. City of Denver,
854 F.2d 1206, 1209 (10th Cir. 1988). See also Faulkner v.
State, 847 A.2d 1216, 1231 n.4 (Md. Ct. Spec. App. 2004)
(collecting cases); 3 Wayne R. LaFave, Search & Seizure: A
Treatise on the Fourth Amendment § 6.1(c) (3d ed. 1996).
We agree with the reasoning of these authorities and hold
that police executing a valid search warrant may arrest a
resident found within the permissible scope of that search
if the officers have probable cause to believe that the
resident has committed a crime. Cf. United States v. Price,
888 F.2d 1206, 1209 (7th Cir. 1989) (implicitly recognizing
this principle). Moreover, the evidence known to the police
when they applied for the warrant also gave them probable
cause to believe that both Russell and Davis were commit-
ting theft. Defendants therefore were justified in arrest-
ing plaintiffs when they found them at home at the time
of the search.

E. Consent to Search the Storage Unit
At summary judgment, the parties disputed whether
Davis had authorized the police to search her storage unit.
In support of their position, defendants produced a consent
No. 04-2065 13

form purporting to have been signed by Davis on August 10,
2000, authorizing Harms and King to search the unit. Prior
to the close of discovery, Davis submitted an affidavit
alleging that “Defendant Harms did not ask me for con-
sent to search the storage unit I rented at Ustore-ULock.”
The signature on the affidavit produced by Davis appears
similar to the signature on the consent form. After discovery
had closed, Davis produced a supplemental affidavit
alleging that she had not signed the consent form and had
never authorized the police, either orally or in writing, to
search her storage unit. The district court refused to
consider the late-filed affidavit and held that the remaining
evidence established that Davis had consented to the search
as a matter of law.
Plaintiffs challenge the district court’s refusal to consider
the late affidavit, asserting that it reveals a genuine issue
of fact as to whether Davis consented to the search. They
contend that, even absent the late affidavit, there is a jury
question regarding Davis’s consent. They argue, moreover,
that any consent given by Davis was tainted by her illegal
arrest.
We review the district court’s refusal to consider an
affidavit in opposition to a motion for summary judgment
for abuse of discretion. Kalis v. Colgate-Palmolive Co., 231
F.3d 1049, 1055 (7th Cir. 2000). “Under this standard,
‘[d]ecisions that are reasonable, i.e., not arbitrary, will not
be questioned.’ ” Id. (quoting Adusumilli v. City of Chicago,
164 F.3d 353, 359 (7th Cir. 1998)). By the time discovery
had closed, plaintiffs had already filed two memoranda in
opposition to defendants’ motions for summary judgment.
Davis’s late-filed affidavit does not contain newly discovered
evidence; it purports to be based on facts known to plaintiff
from the outset of this litigation, and its assertions easily
could have been included in her timely affidavit. Because it
was filed after the close of discovery, moreover, defendants
had no opportunity to depose Davis on its contents. The
14 No. 04-2065

district court’s refusal to consider this evidence was not
unreasonable. To the contrary, “a party’s failure to comply
with summary judgment evidentiary requirements is
traditionally remedied . . . by excluding the non-conforming
submission . . . and then determining whether [the remain-
ing facts] entitle the moving party to judgment as a matter
of law.” Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th
Cir. 2003).
We agree with the district court that the remaining
evidence establishes as a matter of law that Davis con-
sented to the search. The signed consent form is highly
probative evidence that Davis authorized defendants to
search her storage unit. Faced with this evidence, Davis
presented a tentatively-worded affidavit that fails to re-
fute the conclusion that she consented to the search. The
affidavit, even if true, establishes only that Harms did not
ask for Davis’s consent. But the record makes clear that any
one of a handful of officers could have requested that Davis
sign the form. Davis’s filing of the second affidavit—with its
bolder assertions—borders on a tacit concession that the
first affidavit was insufficient to create an issue of fact. The
timely-filed evidence that is properly a part of this record
leads to only one conclusion—that Davis signed the form,
authorizing the officers to search the storage unit. Finally,
because the officers lawfully arrested Davis, her argument
that her consent was tainted by the arrest is without merit.
The defendants committed no Fourth Amendment violation
by searching her storage locker.4

4
Plaintiffs’ appellate brief vaguely mentions that a wide variety
of items was seized from Davis’s storage locker. Davis does not
develop an argument that the officers exceeded the scope of any
consent she may have given them. Accordingly, we will not
consider this issue. See Campania Management Co. v. Rooks, Pitts
& Poust, 290 F.3d 843, 852 n.6 (7th Cir. 2002).
(continued...)
No. 04-2065 15

III. Conclusion
For the reasons stated herein, we find that defendants did
not violate plaintiffs’ rights under the Fourth Amendment.
Accordingly, we AFFIRM the district court’s grant of sum-
mary judgment.

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

4
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USCA-02-C-0072—2-2-05