Dodie Junkert v. Roger Massey ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2908
D ODIE JUNKERT,
Plaintiff-Appellant,
v.
R OGER W. M ASSEY,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 C 3243—Richard Mills, Judge.
A RGUED F EBRUARY 8, 2010—D ECIDED JUNE 21, 2010
Before B AUER, E VANS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Dodie Junkert practices law in
Clinton, the county seat of Dewitt County, Illinois. In
January 2003, both her law office and residence were
searched by local law enforcement officers who hoped
to find stolen laptop computers and controlled sub-
stances there. Junkert contends that the searches
violated her Fourth Amendment right to be free from
unreasonable searches, and brought this suit pursuant
2 No. 09-2908
to 42 U.S.C. § 1983 to vindicate that claim. A jury
evaluated her claim and rejected it. Ms. Junkert contends
in this appeal that she was entitled to judgment as a
matter of law that the searches were unconstitutional so
that the jury should have been instructed to consider
only the amount of the damages to be awarded.
In 2002 and 2003, police were investigating a series of
some 40 burglaries across several central Illinois com-
munities, including Clinton, involving the theft of items
that included laptop computers and firearms, including
police shotguns. Roger Massey, the Sheriff of DeWitt
County, was a lead player in the investigation, known
as “Operation Ringbuster.”
Ringbuster investigators obtained evidence linking
Jeffrey McCall to several burglaries involving the theft
of laptops. The DeWitt County Sheriff’s office gathered
additional information on McCall by interviewing one
of his cohorts, Richard Baker, who admitted to receiving
stolen shotguns from McCall. Baker also told Massey
that he dealt drugs with McCall, at which point Massey
arranged for Baker to be interviewed by Sergeant Jered
Shofner, an Illinois State Police officer focused on
narcotics cases. Shofner already suspected McCall and
Baker of drug crimes, as he had received information
that McCall was a heavy cocaine user who had stolen
property to pay off Baker, his dealer.
In a January 20, 2003, interview with Shofner, Baker
provided information on the drug activities of various
persons, including McCall. Shofner corroborated much
of Baker’s information by reviewing police surveillance
No. 09-2908 3
of Baker with another cocaine distributor and verifying
the name and address of the person Baker claimed was
his cocaine source. Shofner also followed up on Baker’s
claim that he received guns from McCall as payment on
a cocaine debt. Shofner drove Baker to a junkyard
where Baker said the guns were located, and Baker re-
covered the guns.
Baker then gave Shofner the pieces of information that
are most central to this appeal: statements linking
McCall’s criminal activity to attorney Junkert. According
to Baker, sometime in late 2002, McCall said that he
owed his attorney, who was female, $1500 for legal
services and gave her two stolen laptops as partial pay-
ment. McCall told Baker that the attorney knew that the
laptops were stolen and asked McCall to get her two
more. McCall also revealed to Baker that his attorney
was a cocaine user.
Massey checked local court records to find that, on
December 10, 2002, McCall retained Junkert—the only
female attorney practicing in DeWitt County—as privately
employed counsel to represent him in connection with
the burglary case. At that point, Massey and Shofner
prepared an affidavit for a warrant to search two loca-
tions occupied by Junkert for laptop computers and
controlled substances. The first location was Junkert’s
law office, described in the warrant application as “the
entire premises located at 216 S. Grant Street, Clinton IL,
being a grey two story building with white trim with a
sign in the front yard that reads ‘Dodie Junkert Attorney
at Law.’ ” The second location was Junkert’s residence,
4 No. 09-2908
but that fact was not apparent from the face of the affida-
vit, which described the location simply as “a yellow one
story ranch with attached garage” located at “1305
S. Madison St., Clinton IL,” without identifying that
address as Junkert’s home.
As the basis for probable cause, the warrant affidavit
cited the information provided by Baker, except Baker
was not identified by name. The affidavit referred to
Baker simply as a “Confidential Source” (“C/S”) who
had supplied Shofner with reliable information in
the police’s ongoing laptop-burglary investigation. The
affidavit claimed that the C/S provided specific locations
of stolen property, as well as information on numerous
drug dealers.
The affidavit did not assert that the C/S or anyone
else actually saw stolen laptops or drugs in Junkert’s
home or office. Instead, the affidavit relayed the C/S’s
statement to Shofner that McCall said that he gave his
female attorney two stolen laptops as payment on a
$1500 debt, and that the attorney wanted two more
laptops. The affidavit then explained that court records
showed that McCall had retained Junkert in connec-
tion with the burglary case, after a prior, unsuccessful
attempt to obtain private counsel, despite McCall’s lack
of employment.
The affidavit also cited the C/S’s statement that
McCall said that his attorney was a cocaine user, and
reported that Illinois State Police officers knew that
McCall distributed cocaine in the Clinton area. The affida-
vit’s sole attempt to link the items to be seized to any
No. 09-2908 5
particular location was the final, seemingly boilerplate
paragraph, which asserted that Massey was “aware
from his training and experience in these types of investi-
gations that illegal controlled substances and stolen
property can be typically hidden throughout various
locations of said residences. . . .”
On January 22, 2003, Massey signed the warrant
affidavit and presented it to an Illinois Circuit Court
judge, who issued the warrant for Junkert’s home and
office the same day. Before executing the warrant, Massey
called Junkert, who was then in St. Louis, to obtain her
presence at the search so that the police would not have
to force entry into her home. At that point, Junkert ad-
mitted to Massey that she received two laptop computers
from McCall and, upon returning to Clinton, handed
over the one computer that she still had in her posses-
sion. Junkert also told Massey where the second
computer was located, allowing the police to recover it
also before the search. (At earlier stages in the district
court, Junkert asserted that if probable cause ever
existed, it dissipated upon recovery of the second laptop.
She does not pursue that theory on appeal.)
Massey and other officers then executed the search
warrant on Junkert’s home and law office. Beginning at
Junkert’s office, police seized an empty manila folder
with the name “Jeff McCall” on it. Moving on to Junkert’s
home, the police searched every room in the house but
did not find any laptop computers. The police did seize
a mirror, several straws, and pieces of aluminum foil
that contained trace amounts of cocaine.
6 No. 09-2908
Junkert was charged in state court with crimes relating
to the laptop computers and drug evidence recovered
by the police. After a trial resulted in a hung jury, the
prosecution agreed to dismiss the charges in exchange
for Junkert’s placing her law license on inactive status
for four months.
Junkert then brought this action under 42 U.S.C. § 1983against Massey in his individual capacity. Her com-
plaint raised several Fourth Amendment claims,
including that the search of her home and office was
invalid because Massey’s warrant lacked probable cause.
The case went to trial before a jury, who returned a
verdict in favor of Massey. Junkert renewed her pre-
verdict motion for judgment as a matter of law, arguing
that the search warrant was so deficient that Massey
could not have reasonably believed that it established
probable cause. The district court denied Junkert’s
motion, and Junkert appeals.
We review de novo the district court’s denial of a
motion for judgment as a matter of law, viewing the
evidence in the light most favorable to the jury’s verdict.
Waters v. City of Chicago, 580 F.3d 575, 580 (7th Cir. 2009).
We also review de novo whether a warrant was sup-
ported by probable cause, but we afford great deference
to the decision of the judge issuing the warrant. United
States v. Bell, 585 F.3d 1045, 1049 (7th Cir. 2009). We will
uphold a finding of probable cause as long as the issuing
judge had a “ ‘substantial basis’ ” for concluding “ ‘that a
search would uncover evidence of wrongdoing.’ ” United
States v. Dismuke, 593 F.3d 582, 586 (7th Cir. 2010) (quoting
Illinois v. Gates, 462 U.S. 213, 236 (1983)).
No. 09-2908 7
“[A]n affidavit submitted in support of a search-
warrant application will be sufficient to support a proba-
ble-cause finding if, ‘based on the totality of the circum-
stances, the affidavit sets forth sufficient evidence to
induce a reasonably prudent person to believe that a
search will uncover evidence of a crime.’ ” Id. (quoting
United States v. Peck, 317 F.3d 754, 756 (7th Cir. 2003)).
Where, as here, the affidavit relies on information
supplied by an informant, “the totality-of-the-circum-
stances inquiry generally focuses on the informant’s
reliability, veracity, and basis of knowledge.” Id. (citing
United States v. Olson, 408 F.3d 366, 370 (7th Cir. 2005)).
Several factors inform the analysis, including: (1) the
degree of police corroboration of the informant’s infor-
mation; (2) whether the information is based on the infor-
mant’s personal observations; (3) the amount of detail
provided by the informant; (4) the interval of time between
the events reported by the informant and the warrant
application; and (5) whether the informant personally
appeared before the warrant-issuing judge. Id. at 587
(citing United States v. Koerth, 312 F.3d 862, 866 (7th
Cir. 2002)).
Examined against these factors of informant reliability,
the C/S’s information leaves much to be desired. The C/S
did not state that he personally observed laptops or
drugs in Junkert’s home or office, or even that McCall
claimed to have such firsthand observation. Cf. id. (infor-
mant told police that he personally and recently saw
guns in the defendant’s home). The C/S also failed to
specify the time periods or other details of Junkert’s
criminal activity. Although the C/S claimed that McCall
8 No. 09-2908
said that he gave stolen laptops to Junkert and that
Junkert was a cocaine user, the affidavit provided no
information on the time or place of any particular crime.
Cf. id. at 585, 587 (informant saw guns in the defendant’s
home within a week of the warrant application); United
States v. Woolsey, 535 F.3d 540, 542 (7th Cir. 2008) (infor-
mant saw over two pounds of drugs at specific places
in the defendant’s home in the past week). The C/S also
did not personally appear before the Illinois state judge
issuing the warrant.
The affidavit did attempt to bolster the C/S’s reliability
by stating that he had provided accurate information on
previous drug and property crimes. Still, while this
information might go to the C/S’s past reliability on
other crimes not involving Junkert, it supplies no details
to support the C/S’s generalized assertions that Junkert
was engaged in criminal activity. See Peck, 317 F.3d at 757(police check on the defendant’s record was insufficient
to corroborate an informant’s non-detailed allegations of
drugs in the defendant’s home).
The affidavit also described the police’s investigation
linking McCall to the possession of stolen laptops and
drugs, showing that McCall was at least capable of giving
these items to Junkert. The affidavit further stated that
the police confirmed that an unemployed McCall re-
tained Junkert as private counsel (although he previously
was appointed a public defender), suggesting that she
would be expecting a fee from McCall (though not neces-
sarily in the form of stolen computers). Even so, in the
absence of any details about a particular criminal trans-
No. 09-2908 9
action between McCall and Junkert, the police’s back-
ground information on McCall’s crimes and retention of
Junkert has only modest corroborative value. See Dismuke,
593 F.3d at 588 (confirmation of the defendant’s identity
and address “d[id] not directly bolster the informant’s
claim that Dismuke illegally possessed guns at his home”).
Of course, we cannot focus too heavily on any one of
these deficiencies in the affidavit, which must be read as
a whole in light of the totality of the circumstances. See
Bell, 585 F.3d at 1051 (“[T]he whole may be more than
the sum of the parts when assessing probable cause.”
(quotation omitted)). Nevertheless, the sum of the C/S’s
information essentially says that McCall, a known thief
and cocaine dealer, claimed that he paid off his lawyer,
also a cocaine user, with stolen laptop computers at
some unspecified time and place. Even remaining
mindful of the great deference afforded to the issuing
judge’s decision, it is difficult to conclude that these
generalized assertions of Junkert’s wrongdoing pro-
vided a “substantial basis” to search her home or office.
Assuming that the search warrant lacked probable
cause, it does not necessarily follow that Massey may
be personally liable in Junkert’s § 1983 action. Massey is
entitled to qualified immunity for his conduct in
applying for a search warrant. See Hinnen v. Kelly, 992
F.2d 140, 144 (7th Cir. 1993). In this context, the test for
qualified immunity comes from Malley v. Briggs, 475
U.S. 335, 344-45 (1986), in which the Supreme Court held
that an officer who relies on a subsequently invalidated
warrant may be liable for § 1983 damages only if the
10 No. 09-2908
warrant application was “so lacking in indicia of prob-
able cause as to render official belief in its existence
unreasonable.” In Malley, the Court adopted this quali-
fied immunity standard from the standard established in
United States v. Leon, 468 U.S. 897 (1984), for the good-
faith exception to the exclusionary rule. Malley, 475 U.S. at
344. So the evaluation of qualified immunity in ob-
taining a search warrant is similar to that used in
applying the good-faith standard (in fact, there may be
no difference at all in the analysis). See Koerth, 312 F.3d at
869. An officer may be personally liable only if “(1) courts
have clearly held that a materially similar affidavit previ-
ously failed to establish probable cause under facts
that were indistinguishable from those presented in the
case at hand; or (2) 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 Malley, 475 U.S. at 345).
We have never clearly held that an affidavit materially
similar to Massey’s failed to establish probable cause. We
also cannot say that the affidavit was so deficient on
its face that Massey’s reliance on it was unreasonable.
Although not a model for probable cause, the affidavit
does contain some information supporting the inference
that Junkert possessed evidence of a crime. As dis-
cussed, the affidavit described McCall’s past burglaries
(including crime scene evidence and the recovery of
stolen items linking McCall to at least one burglary in
which four laptops were taken on December 5, 2002) and
drug dealings followed by his retention of Junkert as
No. 09-2908 11
private counsel, making it plausible that McCall would
convey stolen laptops or drugs to Junkert. Through court
records described in the affidavit, it was established
that in September 2002, McCall was appointed a public
defender after he was unsuccessful in obtaining private
counsel, but that suddenly, on December 10, 2002, McCall
was able to obtain Junkert as his private counsel. The
affidavit notes McCall’s ability to move from public to
private counsel despite the police records showing him
to be unemployed. The affidavit also reported that the
C/S had provided accurate, specific information on other
drug and property crimes similar to Junkert’s suspected
criminal activity. This attempt to demonstrate the C/S’s
track record distinguishes Massey’s affidavit from one
offering a “wholly conclusory” statement of informant
reliability. Dismuke, 593 F.3d at 587; see also United States
v. Mitten, 592 F.3d 767, 774 (7th Cir. 2010) (“Past perfor-
mance is one way of establishing the veracity or reliability
of an informant . . . .”); Koerth, 312 F.3d at 867
(“[T]he affidavit fails to explain the extent, if any, that
[the informant] has previously provided information
leading to arrests or prosecutions for criminal activity
of any kind.”).
Finally, in an attempt to link stolen computers and
drugs to Junkert’s home, the affidavit cited Massey’s
“training and experience” that “illegal controlled sub-
stances and stolen property can be typically hidden
throughout various locations of said residences.” This
statement partially ameliorates the C/S’s lack of first-
hand observation of the places to be searched, since a
judge may rely on an officer’s experience to draw “rea-
12 No. 09-2908
sonable inferences about where evidence is likely to be
kept.” United States v. Orozco, 576 F.3d 745, 749 (7th Cir.
2009) (quoting United States v. Lamon, 930 F.2d 1183,
1189 (7th Cir. 1991)).
Admittedly, the affidavit’s reference to “said residences”
is ambiguous, since the affidavit contained no previous
mention of any “residence.” Indeed, the warrant applica-
tion never explicitly stated that Junkert’s residence was
one of the two locations to be searched; the reader of
the warrant must infer that the “yellow one story ranch
with attached garage” at the listed address is Junkert’s
home. (Although not part of our consideration of
qualified immunity, a minor fact that came out at trial
may explain the omission of an identification of the
yellow house as Junkert’s residence. Apparently, the
affidavit was prepared for presentation to a Dewitt
County judge, who, in a city with a population of less
than 8,000 and a correspondingly small bar, might be
expected to recognize that location as Junkert’s residence.
However, both Dewitt County judges recused themselves
from reviewing the warrant because of the potential
involvement of a local attorney as a subject of the search.
The affidavit was ultimately presented to a judge in
adjacent Piatt County.) The affidavit also lacked details
about why Junkert, more than any other suspect, would
be uniquely likely to keep evidence in her home. Cf. id.at 748-49 (citing the officer’s experience that a high-
ranking member of a drug distribution gang would
probably keep evidence in his home); Lamon, 930 F.2d at
1186, 1189 (officer’s experience that major drug dealers
often keep drugs and records at a permanent residence
No. 09-2908 13
that is not a drug distribution site). So Massey’s general
experience with other suspects hiding evidence in their
residences, without more, does not show a fair prob-
ability that Junkert kept stolen laptops or drugs in
her home. Still, the affidavit’s mention of Massey’s ex-
perience provides another reason why an officer could
reasonably believe that the warrant was supported by
probable cause.
Although the few indicia of reliability highlighted
above leave the affidavit with much to be desired, we
conclude that an officer could reasonably believe that the
affidavit established probable cause. With Junkert’s
assistance in this retrospective critique, we have found
holes in the affidavit which raise doubts about whether
it provided the judge with probable cause to issue the
search warrant. But the affidavit does contain several
indicia of probable cause, and it is not so deficient that
any reasonably well-trained officer would have known
that probable cause was lacking, requiring the second-
guessing of the judge’s authorization. Massey therefore
has a qualified immunity defense against Junkert’s § 1983
action, and for that reason, we find no reason to over-
turn the judgment in favor of Massey.
We close with this additional cautionary note, though.
When Junkert initially filed her complaint in the district
court, one of her claims was that Sheriff Massey directed
the search in her office in a manner that did not respect
the confidentiality of attorney-client communications
and attorney work product. Somewhere along the line,
that claim dropped out of the case and so is not before
14 No. 09-2908
us. But this serves a good reminder: law enforcement
officials should be cautious when permitted to search
places where information protected by recognized privi-
leges may be stored, such as the offices of lawyers or
medical practitioners, so as not to invade those privileges
in an unauthorized manner. It is equally as important
that when a magistrate is asked to issue a warrant autho-
rizing the search of such a place, the judicial authority
should be even more cautious, if possible, to make sure
that any warrant issued is carefully drawn, so as not to
allow the police to blithely rummage through privileged
information unrelated to the subject of the search.
A FFIRMED.
6-21-10