In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1848
NELSON D. EDWARDS, et al.,
Plaintiffs‐Appellants,
v.
MICHAEL JOLLIFF‐BLAKE, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13‐cv‐4558 — Jorge L. Alonso, Judge.
____________________
ARGUED SEPTEMBER 5, 2018 — DECIDED NOVEMBER 1, 2018
____________________
Before EASTERBROOK, HAMILTON, and SCUDDER, Circuit
Judges.
SCUDDER, Circuit Judge. Chicago police officers obtained a
warrant and searched the home of Nelson Edwards for drugs
and a suspected drug dealer. After the search turned up
neither, Edwards and his family brought suit under 42 U.S.C.
§ 1983 against the City of Chicago and the police officers who
applied for and executed the search warrant. They alleged
their constitutional rights were violated when the officers
2 No. 17‐1848
obtained a warrant unsupported by probable cause,
performed an unreasonable search of their home, and used
excessive force during the search. The district court saw the
material undisputed facts the other way and granted the
defendants’ motion for summary judgment. We affirm,
concluding that probable cause supported the search warrant
and, regardless, the officers are entitled to qualified
immunity.
I
Nelson Edwards owns a home on South Keeler Avenue in
Chicago, where he lives with his daughters, Sherri and
Shawna Edwards, and his granddaughter, Shawna Walker. In
2012, Chicago police officers searched the Edwardses’ home
after receiving a warrant authorizing them to look for heroin
and an alleged drug dealer named Freddy Sutton. Michael
Jolliff‐Blake was the Chicago police officer who obtained the
warrant, and he did so on the basis of information provided
by a confidential informant, “J. Doe.”
Four days before the search, Doe reported buying heroin
in the house from a man he knew as “Fred.” Jolliff‐Blake pre‐
pared a warrant affidavit based on Doe’s account: it stated
that Doe had bought heroin from Fred for the past couple of
months; Fred sold heroin out of the basement of the home on
South Keeler; and Doe had bought and used heroin from Fred
earlier that day and, while doing so, saw Fred carrying a plas‐
tic bag containing over 100 baggies of heroin. The affidavit
also explained that Jolliff‐Blake showed Doe a photo of the
home on South Keeler, which Doe confirmed was the location
in which he bought heroin. Jolliff‐Blake then drove Doe to the
location, where Doe again confirmed his identification of the
No. 17‐1848 3
home. Jolliff‐Blake also used a Chicago Police Department da‐
tabase to obtain a photograph of a man named Freddy Sutton,
who Doe identified as the “Fred” who sold him heroin. Jolliff‐
Blake’s supervisor and an assistant state’s attorney reviewed
and approved the warrant application.
The next day—one day after receiving the information
from Doe—Officer Jolliff‐Blake presented the application to a
Cook County Circuit Court judge. Jolliff‐Blake also brought
Doe with him, made Doe available for questioning, and pro‐
vided the judge with Doe’s criminal history. The judge then
questioned Doe under oath, though there is no transcript of
the proceeding. The judge found that probable cause existed
and issued the warrant.
The officers conducted the search four days later. Nelson
and Sherri Edwards were outside and prevented from
entering the home and disrupting the search, which took
about two hours. At some point, Nelson Edwards tried to
enter but was pushed by an officer and prevented from doing
so. At another point, Nelson Edwards told the police that the
home contained registered guns, which the police, in turn,
located. During the search, a police dog alerted to the
presence of drugs in the home, likely due to prescription
narcotics found by the officers.
Ultimately, the search uncovered no heroin or other illegal
drugs. Nor did the police find Freddy Sutton. After the police
left, the Edwardses noticed some limited property damage,
including a loose door frame, a mark on a door, and a cut
chain on the outdoor fence.
In 2013, the Edwards family filed suit under 42 U.S.C.
§ 1983 against Officer Jolliff‐Blake, other Chicago police
4 No. 17‐1848
officers, and the City of Chicago, alleging violations of their
civil rights through the defendants’ procurement and
execution of a search warrant without probable cause,
including an excessive force claim for the use of force against
Nelson Edwards. The Edwardses also brought a Monell claim
against the City, alleging the existence of an unconstitutional
policy allowing police officers to apply for search warrants
based on information provided by anonymous John Doe
informants.
The district court dismissed the Monell claim because the
Edwardses did not plausibly allege the existence of any policy
or practice permitting searches without probable cause. As to
the claims against the individual officers, the district court
granted their motion for summary judgment, concluding
based upon its own review that the search warrant was
supported by probable cause. It emphasized that Doe had
acquired the information based on firsthand observations,
provided a detailed description of his recent heroin purchase
from Fred at a confirmed location on South Keeler, and
personally appeared before the Cook County judge and
answered her questions. The district court held in the
alternative that the officers were entitled to qualified
immunity based on their reasonable reliance on the warrant.
The district court further concluded that the officers
conducted the search in a reasonable manner and used no
excessive force against Nelson Edwards.
II
A
In determining the sufficiency of a warrant affidavit, we
focus on the totality of the information presented to the Cook
No. 17‐1848 5
County judge. See United States v. Peck, 317 F.3d 754, 756 (7th
Cir. 2003). Where, as here, the affidavit supporting a search
warrant relies on information supplied by an informant, the
analysis examines five primary factors, none of which is
determinative by itself: “the level of detail, the extent of
firsthand observation, the degree of corroboration, the time
between the events reported and the warrant application, and
whether the informant appeared or testified before the
magistrate.” United States v. Glover, 755 F.3d 811, 816 (7th Cir.
2014). In determining whether probable cause existed, “we
look only at what the officer knew at the time he sought the
warrant, not at how things turned out in hindsight.”
Beauchamp v. City of Noblesville, Ind., 320 F.3d 733, 743 (7th Cir.
2003). The law affords “great deference” to the probable cause
finding made by the judge who evaluated the warrant
application in the first instance, and we will uphold that
determination so long as there is a “substantial basis” for
concluding “that a search would uncover evidence of
wrongdoing.” Illinois v. Gates, 462 U.S. 213, 236 (1983).
These factors support the Cook County judge’s finding of
probable cause. The information that Doe provided the police
was based on his detailed, firsthand observations as a long‐
time customer of a heroin dealer he knew as Fred. Doe pro‐
vided specific information regarding his recent heroin pur‐
chase from Fred, including the quantity that he had pur‐
chased (3 baggies for $30), the quantity that Doe observed that
Fred possessed (over 100 baggies), and a statement Fred made
offering to sell Doe more heroin whenever he needed it. The
police then corroborated Doe’s account by having Doe iden‐
tify a picture of the house, confirm that identification a second
time by driving Doe to the location, and identify a picture of
6 No. 17‐1848
Fred. The affidavit also established that Doe knew the sub‐
stance to be heroin because he injected it shortly after the pur‐
chase and found it similar to the heroin he had purchased
from Fred on other occasions. That Doe provided the police
all of this information against his own penal interest rein‐
forced his credibility. See United States v. Jones, 208 F.3d 603,
606, 609 (7th Cir. 2000) (explaining that an informant’s relia‐
bility was bolstered because she admitted to purchasing ap‐
proximately twelve pounds of marijuana from the suspect on
at least three previous occasions).
Additionally, only one day had passed between Doe’s
purchase of the heroin and Officer Jolliff‐Blake’s application
for the warrant. Finally, Doe personally appeared before the
Cook County judge, giving the judge an opportunity to ask
questions and thereby “evaluate the informant’s knowledge,
demeanor, and sincerity.” United States v. Robinson, 724 F.3d
878, 884 (7th Cir. 2013). These facts and circumstances
combined to demonstrate a substantial likelihood that the
search would uncover evidence of a crime, and “the Fourth
Amendment requires no more.” Gates, 462 U.S. at 236.
The Edwardses beg to differ, emphasizing that the warrant
application said not a word about Doe’s reliability. They also
contend that the police did next to nothing to corroborate
Doe’s account of drug dealing occurring at their home and
provided no explanation in the warrant application of how
the police determined that “Fred” was Freddy Sutton or how
the drug house that Doe described was determined to be the
home on South Keeler.
That Doe lacked a track record of serving as a reliable po‐
lice informant is far from disqualifying. Indeed, as we have
emphasized before, “[a]t the beginning of his work with the
No. 17‐1848 7
police, every informant necessarily provides information for
the first time.” Guzman v. City of Chicago, 565 F.3d 393, 396 (7th
Cir. 2009). In the absence of information on Doe’s history of
reliability, the law required the Cook County judge to assume
that Doe had no record of past reliability. See United States v.
Koerth, 312 F.3d 862, 867 (7th Cir. 2002). Statements from an
informant of unknown reliability may serve to establish prob‐
able cause “if, under the totality of the circumstances, a rea‐
sonable person might consider that the statements are worthy
of credence.” Id. at 868. That is the case here.
To be sure, the Edwardses are right to observe that the of‐
ficers largely took Doe at his word without independently
corroborating much of his account. While the officers took
steps to have Doe confirm the identity of the house and Fred,
they did not seek corroboration outside of Doe himself. For
example, the officers did not ask Doe to wear a wire when
buying additional heroin from Fred or introduce another in‐
formant to Fred to do so. Put differently, the steps the police
took gave them some additional information, but did not “di‐
rectly bolster” Doe’s account that Fred was dealing heroin at
the home on South Keeler. United States v. Dismuke, 593 F.3d
582, 588 (7th Cir. 2010), abrogated on other grounds, as recog‐
nized in United States v. Miller, 721 F.3d 435, 438–39 (7th Cir.
2013).
These observations only go so far, though. We must view
the corroborative efforts the police took against the multiple
other factors strongly supporting a finding of probable cause.
And here those facts added up to probable cause: Doe’s de‐
tailed tip was based on firsthand and recent observations; he
confirmed the identity of the location and person from whom
he bought the heroin; and then he appeared before the Cook
8 No. 17‐1848
County judge and submitted to questioning. The district court
reached this exact conclusion after conducting a careful and
detailed review of the record, and we see no basis to disagree.
For their part, the Edwardses see disputed factual issues
at every turn and argue the district court should have sent the
case to trial. We disagree. The only facts “relevant to
determining whether probable cause existed are those known
to the police when they apply for a warrant.”
Beauchamp, 320 F.3d at 745. And, while the Edwardses are able
to point to certain facts that remain disputed, we do not see
those facts as both genuine and material to the probable cause
question. Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012).
Consider a few examples. Take the Edwardses’ contention
that the dispute over whether Doe had a prior relationship
with the police precludes summary judgment. Viewing the
facts in the light most favorable to the Edwardses shows that
Doe first met the officers only shortly before he gave the tip
and, more specifically, just after he came into police custody
while high on heroin, craving more heroin, and in a state of
mind where he was willing to do about anything to get that
heroin, including serve as a police informant.
Even if all true, we fail to see how this materially alters the
probable cause analysis. The warrant affidavit made no rep‐
resentations that Doe had a prior relationship with the police
or a track record of providing reliable information. Further,
the affidavit made clear that Doe was a heroin user, and the
Cook County judge was provided with Doe’s criminal his‐
tory. And the police certainly are not playing in foul territory
by choosing to talk to heroin users about where and from
whom they buy heroin.
No. 17‐1848 9
Take another example. The Edwardses emphasize that
Doe was unable to identify the address and location of the
drug house at his depositions. Doe’s inability to recall the ad‐
dress of the house during his depositions in 2015, however,
does not create a genuine dispute of fact as to whether Doe
identified the home on South Keeler as the drug house in
2012. Doe never wavered in his assertion that he had pur‐
chased heroin from the house he had identified for the offic‐
ers, even if three years later he provided confused testimony
regarding the exact location of the house.
Finally, the Edwardses point out that during the course of
the litigation, Officer Jolliff‐Blake originally provided incor‐
rect information regarding Doe’s identity in his discovery re‐
sponses. Jolliff‐Blake amended his discovery responses, ex‐
plaining that his error was the product of having 8–10 inform‐
ants at any given time and apparently not keeping organized
or detailed logs about each of the informants. What is clear,
however, is that the Edwardses had a full and fair opportunity
to depose J. Doe after Jolliff‐Blake made the correction. At
summary judgment, the Edwardses pointed to no evidence
indicating that the person who provided the tip was not the
same person who appeared before the Cook County judge
and who they later deposed.
While our dissenting colleague is correct to observe that
the district court originally noted that Officer Jolliff‐Blake’s
changed discovery responses raised credibility issues, the dis‐
trict court ultimately concluded that no factual dispute pre‐
cluded a determination that probable cause existed. State‐
ments made in the course of ruling on a discovery dispute do
not change this determination, which was based on the
court’s careful review of the record. And on this record, the
10 No. 17‐1848
officer’s confusion and poor recordkeeping do not negate the
Cook County judge’s finding of probable cause based on an
informant that personally appeared before her.
The Edwardses have not identified a genuine dispute as to
any fact that is material to our probable cause inquiry.
B
We also see no constitutional infirmity in the officers’
execution of the search. They had a warrant to search a single‐
family home for illegal drugs and that is what they did. They
were not required to call off the search because the home did
not fit the stereotype of a stash house. Rather, our caselaw
requiring officers to abandon a search addresses scenarios in
which the warrant plainly did not describe the location to be
searched, such as where, for example, the warrant described
a single‐family home and the officers arrived to find a multi‐
unit building. See Guzman, 565 F.3d at 397–98; Jacobs v. City of
Chicago, 215 F.3d 758, 771 (7th Cir. 2000) (same). The
Edwardses attempt to shoehorn the facts at hand into this
body of caselaw, noting minor inconsistencies between how
the home at South Keeler was described in the warrant and
how the officers encountered it. For instance, the Edwardses
point out that their basement was a small, cluttered area,
which is inconsistent with it being a site to run a heroin
operation. But these small inconsistencies, pointed out with
the benefit of hindsight, would not have given the officers
good reason to believe they were searching the wrong home.
Nor are we aware of any rule requiring officers executing
a valid warrant to abandon the search if drugs are not imme‐
diately seen or found. Here, the police dog alerted for the
presence of narcotics in the home and Nelson Edwards told
No. 17‐1848 11
the officers that there were guns in the home, which the offic‐
ers then had to locate. Faced with these circumstances, the
Fourth Amendment did not require the officers to call off the
search. We cannot say that the officers’ taking two hours to
search an entire home exceeded the bounds of reasonable‐
ness. See United States v. Jennings, 544 F.3d 815, 818 (7th Cir.
2008).
The police were also on solid legal ground in detaining the
Edwardses during the search, as a warrant founded on
probable cause carries with it the “categorical authority to
detain any occupant of the subject premises during the
search.” Id. Furthermore, the district court properly rejected
Nelson Edwards’ excessive force claim. A push by an officer
to stop Nelson Edwards from running into a house that was
subject to an ongoing search was objectively reasonable under
the circumstances. See Graham v. Connor, 490 U.S. 386, 397
(1989).
III
So, too, do we agree with the district court’s conclusion
that, even assuming the search warrant was not supported by
probable cause, the officers are entitled to qualified immunity
for their conduct in procuring and executing the warrant. In
assessing qualified immunity, we ask two questions:
“(1) whether the facts, taken in the light most favorable to the
plaintiff, show that the defendants violated a constitutional
right; and (2) whether that constitutional right was clearly
established at the time of the alleged violation.” Betker v.
Gomez, 692 F.3d 854, 860 (7th Cir. 2012). We conduct this
inquiry against the backdrop of the Supreme Court’s repeated
(and recent) reminders “not to define clearly established law
at a high level of generality” and with the understanding that
12 No. 17‐1848
qualified immunity “protects all but the plainly incompetent
or those who knowingly violate the law.” Kisela v. Hughes, 138
S. Ct. 1148, 1152 (2018); see also White v. Pauly, 137 S. Ct. 548,
551–52 (2017).
An “officer who relies on a subsequently invalidated war‐
rant may be liable for § 1983 damages only if the warrant ap‐
plication was ‘so lacking in indicia of probable cause as to ren‐
der official belief in its existence unreasonable.’” Junkert v.
Massey, 610 F.3d 364, 369 (7th Cir. 2010) (quoting Malley v.
Briggs, 475 U.S. 335, 345 (1986)). This standard derives from,
and is applied much like, the standard for the good‐faith ex‐
ception to the exclusionary rule. Id. An officer faces personal
liability only if “courts have clearly held that a materially sim‐
ilar affidavit previously failed to establish probable cause un‐
der facts that were indistinguishable from those presented in
the case at hand” or if “the affidavit is so plainly deficient that
any reasonably well‐trained officer would have known that
his affidavit failed to establish probable cause and that he
should not have applied for the warrant.” Id. (quoting Koerth,
312 F.3d at 870).
Time and again we have upheld warrants based on an
informant’s recent and firsthand account of criminal activity.
See, e.g., Dismuke, 593 F.3d at 588 (upholding warrant based
on informant’s tip that he had personally observed the
suspect with guns in his home within the last week); United
States v. Sims, 551 F.3d 640, 644 (7th Cir. 2008) (concluding that
an affidavit based on informant’s tip that he had seen drugs
on the suspect and in the suspect’s residence within the past
72 hours “clearly supported a determination of probable
cause”). Here, the affidavit contained detailed information
about Doe’s recent purchase of heroin, explaining where Doe
No. 17‐1848 13
bought the drugs, who he bought them from, and the steps
the police took to confirm Doe’s identification of the location
and Fred as the seller. Officer Jolliff‐Blake presented Doe to
the Cook County judge, who then proceeded to question Doe.
There was no reason the officers should have doubted the
sufficiency of these actions once the Cook County judge—
relying upon the totality of this information—approved the
application and issued the warrant. The district court reached
the same conclusion: that probable cause existed to support
the warrant. While not dispositive, agreement by neutral fact‐
finders that probable cause existed “certainly is further
evidence that [the officers’] reliance on the affidavit was
reasonable.” United States v. Harju, 466 F.3d 602, 611 n.5 (7th
Cir. 2006).
The Edwardses posit that the police procured the warrant
with a reckless disregard for the truth. It is “clearly estab‐
lished ‘that a warrant request violates the Fourth Amendment
if the requesting officer knowingly, intentionally, or with
reckless disregard for the truth, makes false statements in re‐
questing the warrant and the false statements were necessary
to the determination that a warrant should issue.’” Lawson v.
Veruchi, 637 F.3d 699, 705 (7th Cir. 2011) (quoting Knox v.
Smith, 342 F.3d 651, 658 (7th Cir. 2003)). The standard requires
a showing that the Edwardses cannot make: that “the officers
entertained serious doubts as to the truth of their statements,
had obvious reasons to doubt the accuracy of the information
reported, or failed to inform the judicial officer of facts they
knew would negate probable cause.” Beauchamp, 320 F.3d at
743.
14 No. 17‐1848
As the Edwardses see it, multiple omissions on the offic‐
ers’ part evince their reckless disregard for the truth. They as‐
sert that the officers failed to disclose Doe’s severe heroin ad‐
diction, the coercive (heroin‐craving) circumstances under
which he provided the tip, and his failure to adequately iden‐
tify his supplier and the house where he claimed to have pur‐
chased drugs. The Edwardses also argue that the officers un‐
reasonably relied upon “an obviously impaired witness” who
gave them inconsistent information, and then recklessly failed
to corroborate this information.
These omissions were either presented to the Cook
County judge or irrelevant to the probable cause
determination. Foremost, the Edwardses too discount, if not
entirely overlook, that Doe appeared before the Cook County
judge. They also ignore that the officers provided the judge
with Doe’s criminal history and the affidavit contained much
of the purportedly omitted information, including Doe’s use
of heroin. More to the point, the affidavit stated that Doe had
been using heroin for over two years, had used heroin the day
before, and had bought heroin from Fred “numerous times”
in the past two months. It was no secret to anyone that Doe
was a heroin addict. And it could not have possibly been news
to the Cook County judge that Doe, as an addict, may have
been impaired, suffering from withdrawal, and had an
incentive to cooperate with the police. Judges, too, live in the
real world and “are aware that informants are frequently
facing charges and hoping for deals.” Molina ex rel. Molina v.
Cooper, 325 F.3d 963, 970 (7th Cir. 2003). Given Doe’s
appearance and the officers’ disclosures, this is a far cry from
a situation involving the “wholesale omission of damaging
credibility information.” Glover, 755 F.3d at 818.
No. 17‐1848 15
The Edwardses further argue that the officers failed to
disclose Doe’s confusion as to the location of the drug house.
The Edwardses point to nothing in the record, however,
indicating the officers had reason to doubt Doe’s
identification of the drug house at the time they applied for
the warrant. They instead rely on Doe’s inability to recall the
address of the drug house at his depositions years later. It is
unclear how the officers could have disclosed something to
the Cook County judge that they did not know at the time.
The Edwardses cannot manufacture a factual dispute with
after‐the‐fact confusion.
Nor does the officers’ minimal corroboration show a reck‐
less disregard for the truth sufficient to overcome qualified
immunity, especially in light of the other factors indicating
the reliability of Doe’s information. At the time they applied
for the warrant, Doe had identified the residence on South
Keeler as the drug house, from a picture and in person. The
officers had no reason to doubt the accuracy of this infor‐
mation and instead, may have reasonably assumed that some‐
one with a drug habit would be able to identify the house
where he had recently purchased drugs. The affidavit out‐
lined the steps that Jolliff‐Blake took to corroborate Doe’s ac‐
count. Armed with this information, “[t]he state judge could
have told the police that they needed to do more investiga‐
tion; by issuing the warrant instead, the judge entitled the po‐
lice to search without the risk of personal liability.” Walker v.
Weatherspoon, 900 F.3d 354, 358 (7th Cir. 2018).
The record does not support the conclusion that the offic‐
ers recklessly attempted to mislead the Cook County judge,
and the officers are entitled to qualified immunity. See e.g.,
16 No. 17‐1848
Archer v. Chisholm, 870 F.3d 603, 615–16 (7th Cir. 2017) (reject‐
ing the argument that defendants recklessly provided mis‐
leading statements in the warrant application and concluding
defendants were entitled to qualified immunity); Junkert,
610 F.3d at 370 (concluding officers were entitled to qualified
immunity based on their reasonable belief that the affidavit
established probable cause even though it left “much to be de‐
sired”).
IV
The district court properly entered judgment for the City
of Chicago on the Monell claim. The Monell claim arises out of
the Chicago Police Department’s policy and practice of using
John Doe informants and, most importantly, is premised on
the same conduct upon which the Edwardses base their
claims against the individual officers. Because the Edwardses
cannot make out a constitutional violation in their claim
against the individual officers, there can be no viable Monell
claim based on the same allegations. City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986); see also White v. City of Chicago,
829 F.3d 837, 844 (7th Cir. 2016) (“Probable cause also
establishes that White did not suffer a constitutional injury,
which is a necessary element of a Monell claim.”).
Finally, the district court did not abuse its discretion in
denying the Edwardses’ motion to compel Doe’s Registered
Cooperating Individual file. We will reverse a district court’s
denial of a motion to compel only upon a “clear showing that
the denial of discovery resulted in actual and substantial prej‐
udice.” Gonzalez v. City of Milwaukee, 791 F.3d 709, 713 (7th Cir.
2015). The district court determined that the file was not rele‐
vant because it related only to Doe’s track record as an inform‐
No. 17‐1848 17
ant after he provided the tip in question. We agree, and con‐
clude that the Edwardses have not made out the requisite
showing of prejudice.
For these reasons, the district court correctly concluded
the search warrant was supported by probable cause and the
officers’ conduct in executing the warrant was reasonable. We
AFFIRM.
18 No. 17‐1848
HAMILTON, Circuit Judge, dissenting in part. Plaintiffs’
claims against defendant Jolliff‐Blake should be remanded for
trial. As recognized by Judge Chang, the first district judge to
handle this case, both Officer Jolliff‐Blake and the “John Doe”
informant who testified have significant credibility problems.
Those credibility problems call into question the foundation
for the search warrant. A jury should decide the claims
against Jolliff‐Blake.
Eleven police officers arrived at plaintiffs’ home with a
warrant to search the house for drugs. It was not a promising
site for finding a round‐the‐clock drug operation. Nelson Ed‐
wards had owned the home for 41 years. In 2012, he was 72
years old and had retired after working for 31 years for the
University of Illinois at Chicago. He lived at the house with
his two daughters and his twelve‐year‐old granddaughter.
Police officers found no drugs beyond prescription medica‐
tion. In fact, upon entry, it was clear enough to the officers that
they likely had the wrong house that the supervising sergeant
ordered the “white glove” treatment. A short while into the
search, Mr. Edwards’ daughter overheard one officer say,
“We’ve been bamboozled again.”
The central claim in this lawsuit is that Officer Jolliff‐Blake
made false statements, either knowingly or recklessly, to the
judge who issued the search warrant. See, e.g., Molina ex rel.
Molina v. Cooper, 325 F.3d 963, 968 (7th Cir. 2003). The plain‐
tiffs contend that Officer Jolliff‐Blake was at least reckless in
obtaining a search warrant for their home based on what he
was supposedly told by an unreliable heroin addict, one who
was desperately “dope‐sick” and desperate to tell the police
something—or anything. It’s not surprising that heroin ad‐
dicts are sources of information about where to buy heroin.
No. 17‐1848 19
But the key questions are what Officer Jolliff‐Blake knew
when he sought the warrant, and whether he had obvious rea‐
sons to doubt the information he reported to the judge. E.g.,
Beauchamp v. City of Noblesville, 320 F.3d 733, 742–43 (7th Cir.
2003), citing Malley v. Briggs, 475 U.S. 335, 345, 341 (1986)
(qualified immunity protects “all but the plainly incompetent
or those who knowingly violate the law”).
To be clear, if we accept the defendants’ final version of the
facts here, then all defendants were entitled to summary judg‐
ment. The majority’s account of the law applicable to the de‐
fense’s final version of the facts is correct. The search of the
plaintiffs’ home was a fruitless fiasco, but it did not violate the
Fourth Amendment if it was based on a mistaken but honest
judgment to trust what the informant told the police.
But I disagree with my colleagues because two genuine is‐
sues of material fact are at the heart of plaintiffs’ claims
against Officer Jolliff‐Blake. Conflicting testimony from Jolliff‐
Blake and “Doe” means that neither’s testimony can or should
be accepted for purposes of summary judgment. The first is‐
sue is the sheer identity of the “John Doe” informant upon
whom the search warrant application was based. The second
is which house “John Doe” supposedly told Jolliff‐Blake was
where he had bought heroin.
The majority accepts as undisputed the final answers pro‐
vided in discovery by Jolliff‐Blake and then by Doe. As ex‐
plained below, however, those final answers conflicted with
repeated, sworn testimony from both Jolliff‐Blake and John
Doe on the same subjects.
The defense attributes the changing answers under oath to
confusion and the fallibility of memory. Fair enough, but this
20 No. 17‐1848
is summary judgment. Plaintiffs are entitled to the benefit of
any admissible evidence favoring their claims and conflicts in
the evidence, as well as reasonable inferences favorable to
their claims. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 150 (2000); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986) (a “judge’s function” on summary judg‐
ment is not “to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue
for trial”); Muhammad v. Pearson, 900 F.3d 898, 902 (7th Cir.
2018), citing Zimmerman v. Doran, 807 F.3d 178, 182 (7th Cir.
2015). A jury hearing both Jolliff‐Blake’s and John Doe’s con‐
flicting answers on critical facts could reasonably conclude
that neither should be believed about any important fact. See
Reeves, 530 U.S. at 147 (relying on “general principle of evi‐
dence law that the factfinder is entitled to consider a party’s
dishonesty about a material fact as ‘affirmative evidence of
guilt’”), quoting Wright v. West, 505 U.S. 277, 296 (1992).1
Officer Jolliff‐Blake’s Original Version: From the beginning,
plaintiffs sought the identity of the “John Doe” who suppos‐
edly claimed he had bought heroin at plaintiffs’ home in June
2012. The defense refused, asserting that the information
should be kept confidential. Plaintiffs then served requests for
admissions under Federal Rule of Civil Procedure 36. Jolliff‐
Blake answered the requests for admission twice, on Decem‐
ber 2, 2013, and again on January 29, 2014, with amendments
not relevant here.
1 I agree with my colleagues’ decisions about claims against all other
defendants. If Jolliff‐Blake was dishonest or reckless in obtaining the
search warrant, plaintiffs could hold him accountable for the restraints on
their liberty and the use of force against Mr. Edwards during an unconsti‐
tutional search.
No. 17‐1848 21
In those twice‐sworn answers, Jolliff‐Blake claimed that:
(1) he knew the identity of John Doe at the time of the search
but no longer knew it; (2) he had kept no written notes or rec‐
ords of Doe’s real name, address, or telephone number; (3) he
had never registered Doe as an informant under Chicago po‐
lice policies; and (4) he had not used Doe as an informant
since the debacle at the Edwards’ home.
After responding to the requests for admissions, Jolliff‐
Blake also answered plaintiffs’ interrogatories, first on March
5, 2014 and again on August 20, 2014. Those sworn answers
repeated that, after the search of the plaintiffs’ home in June
2012, Jolliff‐Blake had not used Doe again to obtain search or
arrest warrants and that Doe had not been registered as an
informant.
Plaintiffs then moved to compel defendants to identify
“Doe.” Judge Chang held a hearing on August 5, 2014. He
pointed out that the search had failed to uncover the alleged
drug‐dealer, any drugs, or any drug paraphernalia, rendering
the representation “that there was a drug operation operating
supposedly night and day in that basement” a “falsity.” In
terms of whether Officer Jolliff‐Blake knowingly or recklessly
disregarded the truth, the judge observed that “right now you
have, as far as the records show, officers who took the word
of someone who had just supposedly gotten high and bought
drugs at this location and they didn’t ask him why he is coop‐
erating.” At that hearing, however, Judge Chang postponed
ruling on the motion to compel until after Officer Jolliff‐
Blake’s deposition.
Officer Jolliff‐Blake’s New Story: Faced with a likely order to
disclose Doe’s identity, Jolliff‐Blake changed his story a few
days before his deposition. He filed a motion under Rule 36(b)
22 No. 17‐1848
for leave to change his answers to four requests to admit. In
the new answers, Jolliff‐Blake claimed that all of his testimony
up to that point had been about the wrong “John Doe.” Jolliff‐
Blake now claimed that: (1) he actually did know Doe’s true
name; (2) he did keep records of Doe’s identity; (3) Doe in fact
had been registered as an informant; and (4) he had actually
used Doe as an informant again after the search of the plain‐
tiffs’ home.
This is how Jolliff‐Blake himself amended his answers:
Request No. 25. The defendant responding to this Re‐
quest to Admit knows the true name of the “John Doe”
informant who gave information leading to the issu‐
ance of Search Warrant #12 SW 6213.
Withdrawn Answer: Denied
Amended Answer: Admit
Request No. 31. The defendant responding to this Re‐
quest to Admit kept no written notes or records of the
name, address, or telephone number of the “John Doe”
informant who gave information leading to the issu‐
ance of Search Warrant #12 SW 6213.
Withdrawn Answer: Admit
Amended Answer: Admit defendant kept no written
notes or records of the address or telephone number of
the “John Doe” informant. Deny defendant kept no
written notes or records of the name of the John Doe
informant.
Request No. 32. The defendant responding to this Re‐
quest to Admit has never registered the “John Doe” in‐
formant who gave information leading to the issuance
No. 17‐1848 23
of Search Warrant # 12 SW 6213 5 as a Registered Co‐
operating Individual as defined in the Chicago Police
Department policies and procedures.
Withdrawn Answer: Admit
Amended Answer: Deny
Request No. 34. The defendant responding to this Re‐
quest to Admit has not used the “John Doe” informant
who gave information leading to the issuance of Search
Warrant #12 SW:6213 as an informant since using him
to obtain Search Warrant #12 SW 6213.
Withdrawn Answer: Admit
Amended Answer: Deny
Officer Jolliff‐Blake attributed this dramatic change in his
repeated, sworn testimony to an epiphany he supposedly ex‐
perienced when he read his partner’s deposition testimony
describing the “John Doe” for this search warrant. Jolliff‐
Blake claimed he realized then that when he had answered
the requests to admit, he “mistakenly confused the [relevant]
informant with two other informants that he was also using
about the same time in the 11th District who were physically
similar in color, size and stature to the [relevant] Informant.”
Plaintiffs did not buy this explanation. In opposing Jolliff‐
Blake’s motion to withdraw his admissions, they pointed out
how many times he had repeated the original version under
oath and how much work their attorneys had done based on
the original version. They also argued that his new answers
24 No. 17‐1848
were just false. They questioned whether there had actually
been a real John Doe for this search warrant.2
Judge Chang’s oral decision on the motion to withdraw
admissions was sensible. He allowed Officer Jolliff‐Blake to
withdraw his admissions, but he explained that the changing
answers presented credibility issues for a jury:
At this point it is better to allow the plaintiff to cross‐
examine on the changes rather than to lock in the de‐
fendant on a version of events that, at least according
to the defendant, [is] not accurate anymore.
This goes right to the heart of the merits of the case.
And there was some time passage, obviously, between
the underlying events in this case and the answers to
the request to admit. He has worked on, you know,
many, many investigations since then. And so I will al‐
low this amendment so that we have the fact finder,
you know, the jury, actually decide on the back and
forth of testimony as opposed to on really a discovery
issue.
This does not meant that he should not have been bet‐
ter prepared to answer the requests to admit. This was
obviously a crucial issue, and it really should have
2 Confidential police records submitted in camera show that months
after the fruitless search of plaintiffs’ home (and after time for an internal
investigation), Officer Jolliff‐Blake recorded using the same “John Doe” as
making three controlled drug buys within one week. The records indicate
that Doe received no money and produced not even one arrest. These sup‐
posed buys were apparently the minimum needed to “register” Doe as a
“registered cooperating individual,” which could strengthen a claim in
court that his identity should be kept confidential.
No. 17‐1848 25
been the focus of a searching inquiry of his own
memory, but it is going to be up to the fact finder to
decide as opposed to leaving it to the request to admit.
Nov. 21, 2014 Tr. 18. Judge Chang also required the defense
to pay some costs of follow‐up discovery required by the
changes in Jolliff‐Blake’s testimony.
The judge’s approach had a sound legal basis. When a
party obtains relief from an admission under Rule 36(b), both
answers are admissible as an opposing party’s admission and
can be used to impeach the witness. 8B Wright & Miller, Fed‐
eral Practice & Procedure § 2264 (3d ed.). That is essentially the
same result as when a deposition witness changes an answer
under Rule 30(e). Thorn v. Sundstrand Aerospace Corp., 207 F.3d
383, 389 (7th Cir. 2000) (amending deposition answer does
“not remove the issue from the jury” because “fortunately the
rule requires that the original transcript be retained . . . so that
the trier of fact can evaluate the honesty of the alteration”); 8A
Wright & Miller, Federal Practice and Procedure § 2118 (3d ed.)
(“the preferable rule seems to be that the original answers
must of course remain in the record” and can be used for im‐
peachment purposes at trial).
“John Doe’s” Testimony: In the wake of Jolliff‐Blake’s new
story, Judge Chang also ordered disclosure of John Doe’s
identity. Defendants identified the person who they claimed
had provided the basis for this search warrant, and plaintiffs
took his deposition. To call him a difficult witness is an un‐
derstatement. His deposition was conducted in three sessions.
26 No. 17‐1848
The first two ended when he just walked out. To call his testi‐
mony confused is even more of an understatement.3
Doe’s account of where he had supposedly bought heroin
was a moving target. During his first session, he testified—
repeatedly—the he had bought the drugs from a house on
Flournoy Street, not from the plaintiffs’ home on Keeler Ave‐
nue. Doe referred to Flournoy Street a dozen times. He em‐
phasized that, although “I don’t know addresses,” “If you
needed dope, everybody would just say go down—go down
to Flournoy.”4 Plaintiff’s attorney was the first to mention “the
800 block of South Keeler,” where plaintiffs lived, but Doe
stuck to his Flournoy answers until right before the abrupt
end of the deposition when he stumbled onto “Arthington.”
Doe’s later two sessions hewed more closely to the defend‐
ants’ preferred version, that he bought heroin from the plain‐
tiffs’ house at the corner of South Keeler and Arthington.
These conflicts in a witness’s testimony on a critical issue
present genuine issues of fact. Parties moving for summary
judgment are not entitled to “cherry‐pick” only the evidence
3 In addition to oscillating between incoherent combativeness and ap‐
pearing to drift off to sleep, the witness peppered his testimony with easily
disprovable and pointless lies. For example, he said his parents died in
Hurricane Katrina. In reality, he had recently been convicted of defraud‐
ing his mother, who lived in Illinois. He said he attended a high school in
New Orleans that does not exist. He actually attended high school in Illi‐
nois.
4 Early in the deposition, the witness hesitated and said: “Pretty sure
that’s the street name. Or Lexing – no. Wait – Lexington. Flournoy.
Flournoy.” The target of the drug search was ostensibly one Freddie Sut‐
ton, who had a long list of drug‐related arrests and whose long‐time resi‐
dence was several blocks away on Lexington, near Flournoy.
No. 17‐1848 27
most favorable to them. E.g., Malin v. Hospira, Inc., 762 F.3d
552, 564 (7th Cir. 2014). When moving parties make that mis‐
take, it’s the court’s job to correct the mistake, not to repeat it.
Id.
The Majority’s Excuses for the Defense: The majority
acknowledges Doe’s “confused” testimony and Jolliff‐Blake’s
“confusion and poor recordkeeping.” Ante at 9–10. Yet the
majority finds no reason to doubt the (final) versions of their
testimony supporting the search warrant. Respectfully, as
Judge Chang recognized in the district court, it is not the task
of a district court or this court to sort out such factual disputes
on summary judgment.
Confusion, poor recordkeeping, and the effects of time on
memory may be reasonable explanations for the conflicts, but
they are not the only ones. A reasonable jury could also con‐
clude that if Officer Jolliff‐Blake was willing to testify—re‐
peatedly—to his original version, then he simply is not a reli‐
able witness. Maybe his memory was faulty. Maybe he was
not being honest. Either way, he impeached his own testi‐
mony on critical facts. He showed that his testimony is not
reliable. At the very least, that’s what a reasonable jury could
find.
Standard jury instructions teach jurors that in deciding
what weight to give a witness’s testimony, they may consider
impeachment by his own prior statements and conflicting tes‐
timony from others. The instructions also teach that in weigh‐
ing the effect of an inconsistent statement, jurors should “con‐
sider whether it was simply an innocent error or an inten‐
tional falsehood and whether it concerns an important fact or
an unimportant detail.” Seventh Circuit Pattern Civil Jury In‐
struction 1.14.
28 No. 17‐1848
I do not contend that trivial variations in a witness’s testi‐
mony always require denial of a summary judgment motion
based on his testimony. The contradictions here, however, go
to the heart of the case: who was “John Doe,” where did he
say he bought the heroin, and did the police have any busi‐
ness trusting him? If Jolliff‐Blake cannot keep his sworn testi‐
mony straight on these matters, it is a mistake to say the courts
must accept the final, defense‐friendly version of his testi‐
mony. Consistent with our pattern instructions, this case pre‐
sents issues for trial, not summary judgment.
The majority’s decision to accept Jolliff‐Blake’s explana‐
tions for his conflicting testimony and impeachment takes this
court well outside the proper role for summary judgment.
Maybe this fiasco of a search was the result of an honest but
too‐credulous officer’s mistake in crediting “Doe.” That’s
what my colleagues believe. But that’s not our decision to
make. Maybe we are just seeing a cover‐up for the fiasco. The
evidence also permits a reasonable inference that Jolliff‐
Blake’s and Doe’s defense‐friendly account of any facts
simply does not deserve to be believed. Plaintiffs’ claims
against Jolliff‐Blake should be tried. To that extent, I respect‐
fully dissent.