Phynelopha Johnson v. Shawn Myers ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1015
PHYNELOPHA A. JOHNSON, Administrator of the Estate of
Phillip Osborne,
Plaintiff-Appellant,
v.
SHAWN MYERS,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:19-cv-00426-SPM — Stephen P. McGlynn, Judge.
____________________
ARGUED SEPTEMBER 20, 2022 — DECIDED NOVEMBER 16, 2022
____________________
Before EASTERBROOK, HAMILTON, and BRENNAN, Circuit
Judges.
BRENNAN, Circuit Judge. Phillip Edward Osborne alleged
that Illinois State Police Officer Shawn Myers arrested him
without probable cause and therefore violated his civil rights.
He sued under 42 U.S.C. § 1983, and his sister, Phynelopha
Johnson, continued the lawsuit after he died.
2 No. 22-1015
Myers acted pursuant to an arrest warrant, so Johnson
faces an uphill battle to overcome the presumption of validity
accorded to the warrant and the information underlying it.
With little more than bare allegations that Myers lied in his
warrant application, Johnson fails to overcome this presump-
tion. Therefore, we affirm the district court’s grant of sum-
mary judgment for Myers.
I.
Between 2013 and 2014, Officer Shawn Myers 1 supervised
ten controlled drug purchases by a confidential source at a
residence in Cairo, Alexander County, Illinois. Each purchase
was recorded on video. The confidential source initially said
that a “Cornelius S. Dean” was selling crack cocaine at the
house. As the buys took place, the source learned more about
the dealer’s identity. During the third purchase, the source
found out the dealer’s name was Ed. And during the fourth,
Ed, upon being asked, told the confidential source that his last
name was “Johnson,” though the source doubted this re-
sponse. Nonetheless, Myers ran a computerized search for an
image of an “Ed or Edward Johnson” in the Illinois Secretary
of State database but found no match.
During the fifth purchase on March 24, 2014, Ed again sold
the confidential source some crack cocaine but, after this
transaction, Myers gained additional details about Ed’s pos-
sible name. Myers contacted Alexander County Sheriff Tim
Brown and asked him about Ed’s identity. Brown suggested
Ed’s last name might be Osborne, but the record does not
1
The caption in the district court spelled Defendant-Appellee’s last
name as “Meyers,” but the parties agree that the officer’s name is spelled
“Myers.” So we use “Myers.”
No. 22-1015 3
reveal how Brown arrived at that conclusion. Using this lead,
Myers checked the Secretary of State database again and dis-
covered that a “Phillip Edward Osborne” resided in Cairo.
Myers obtained Osborne’s driver’s license photo and con-
cluded that it matched the dealer in the drug buy videos. My-
ers also reported that the confidential source, upon seeing the
photo, “unequivocally, positively identified Osborne as the
same Ed [he] had purchase[d] purported crack cocaine from
on two previous occasions” at the house in Cairo.
Johnson has a problem, though—this driver’s license
photo is nowhere in the record. Johnson’s counsel concedes
that he did not request the photo in discovery, despite sug-
gesting at Myers’s deposition that he would do so.
Having found a name for the dealer, Myers conducted five
more controlled purchases from March 27 to April 22, 2014.
But Myers waited until January 12, 2017, to apply for an arrest
warrant. He said this was because the informant was involved
in other investigations in the same area. Before applying for
the warrant, Myers consulted with the local State’s Attorney
to determine whether he had enough evidence to arrest Os-
borne. Myers based his warrant application on the last six con-
trolled drug buys between March 24 and April 22, 2014, and
attached investigative reports that detailed the purchases.
On the same day Myers submitted his application, an Al-
exander County judge issued a warrant for Osborne’s arrest.
Osborne was arrested on April 18, 2018, for unlawful delivery
of a controlled substance. Following his arrest, Osborne re-
mained incarcerated for seven days and was released on
bond. The State eventually dismissed the drug charges.
4 No. 22-1015
Osborne sued in district court under 42 U.S.C. § 1983, al-
leging civil rights violations by Myers, Pulaski County, and
Alexander County. He died in April 2020, so his sister, John-
son, as the administrator of his estate, was substituted in as
the proper party. Before this appeal, the district court dis-
missed with prejudice the claims against the county defend-
ants. The district court also granted summary judgment for
Myers on the false arrest claim against him, concluding that
Johnson had not presented any relevant evidence to under-
mine probable cause to arrest Osborne and that Myers was
entitled to qualified immunity. Johnson appeals only the false
arrest claim.
II.
A.
As a preliminary matter, we address Johnson’s objections
to two pieces of evidence the district court relied upon when
it granted summary judgment. The first is Myers’s assertion
that the driver’s license photo matched the dealer in the sur-
veillance videos. The second is Myers’s declarations about
what the confidential source said. On the first, Johnson con-
tends that the best evidence rule requires the driver’s license
photo to be produced. She also asserts that both items of evi-
dence are inadmissible hearsay. The district court implicitly
overruled these objections by considering the objected-to evi-
dence in its order granting Myers summary judgment. See
generally Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009)
(citation omitted) (“[A] court may consider only admissible
evidence in assessing a motion for summary judgment.”). We
review evidentiary rulings for abuse of discretion. Bordelon v.
Bd. of Educ. of the City of Chicago, 811 F.3d 984, 989 (7th Cir.
2016).
No. 22-1015 5
Citing the best evidence rule, FED. R. EVID. 1002, Johnson
objects to Myers’s warrant application allegation that “[t]he
[Secretary of State] photograph of Osborne was a match to the
person in the recordings of the purchases.” Johnson argues
that the district court could not consider this statement in as-
sessing probable cause unless Myers produced Osborne’s
driver’s license photo. But this objection ignores that the Fed-
eral Rules of Evidence do not apply to applications for war-
rants. FED. R. EVID. 1101(d)(3). Myers was not required to pro-
vide the driver’s license photo in his warrant application, so
the district court did not abuse its discretion in considering
Myers’s statement to determine the existence of probable
cause. Further, as plaintiff, Johnson bears the burden to un-
dermine the presumed validity of the arrest warrant. Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 256–57 (1986) (“The mo-
vant has the burden of showing that there is no genuine issue
of fact, but the plaintiff is not thereby relieved of his own bur-
den of producing in turn evidence that would support a jury
verdict.”). So even if Johnson were correct that the contents of
the photo are at issue, any best evidence problem rests with
her, not Myers. And as explained below, Johnson has not
come forward with evidence sufficient to meet her burden.
Johnson’s hearsay objections fare no better. To begin with,
the statements in the warrant application were not offered to
prove the truth of the matter asserted. See FED. R. EVID.
801(c)(2). Instead, they were offered to show what Myers
knew at the time to support probable cause to arrest Osborne.
See Cairel v. Alderden, 821 F.3d 823, 830–31 (7th Cir. 2016) (“The
statements … were offered instead to show the officers had
information giving them probable cause to arrest plaintiffs.”).
Even if the statements were hearsay, a finding of probable
cause may rest upon hearsay statements so long as there is a
6 No. 22-1015
substantial basis for crediting them. Illinois v. Gates, 462 U.S.
213, 241–42, 244–45 (1983). A judge reviewing a warrant ap-
plication must consider the veracity and the basis of
knowledge of the persons supplying the hearsay information
to determine if there is probable cause. United States v. Bell,
585 F.3d 1045, 1049 (7th Cir. 2009) (citing Gates, 462 U.S. at
238). And because Johnson’s false arrest claim hinges upon
probable cause, the district court, too, could consider the hear-
say contained in Myers’s warrant application if the declarants
were sufficiently reliable, which they were.
The confidential source provided Myers with information
leading to at least ten successful controlled drug buys. Myers
testified in deposition that the confidential source had a track
record of reliability and was simultaneously working other
cases during the Osborne investigation. So the district court,
as well as the issuing judge, had a substantial basis to find the
confidential source trustworthy. As to Myers, Johnson points
to no evidence beyond mere assertions that Myers is incredi-
ble or unreliable. Mere assertions are not competent summary
judgment evidence. See Igasaki v. Ill. Dep’t of Fin. & Pro. Regul.,
988 F.3d 948, 960 (7th Cir. 2021). The district court thus did
not abuse its discretion in implicitly overruling the hearsay
objection.
B.
Next, we consider whether Johnson has overcome the pre-
sumption that the arrest warrant was valid. We review the dis-
trict court’s summary judgment decision de novo and draw
all reasonable factual inferences in Johnson’s favor. Watters v.
No. 22-1015 7
Homeowners’ Ass’n at Pres. at Bridgewater, 48 F.4th 779, 784 (7th
Cir. 2022).
To prevail on a Fourth Amendment claim for false arrest,
Johnson must establish that Osborne was arrested without
probable cause. Gaddis v. DeMattei, 30 F.4th 625, 630 (7th Cir.
2022). “Probable cause for an arrest provides an absolute de-
fense to a false arrest claim.” Id. (citing Farnik v. City of Chicago,
1 F.4th 535, 545 (7th Cir. 2021)). And “[p]robable cause to jus-
tify an arrest exists if the totality of the facts and circum-
stances known to the officer at the time of the arrest would
warrant a reasonable, prudent person in believing that the ar-
restee had committed, was committing, or was about to com-
mit a crime.” Abbott v. Sangamon Cnty., 705 F.3d 706, 714 (7th
Cir. 2013) (citations omitted). The inquiry is “purely objec-
tive,” and “the officer’s subjective state of mind and beliefs are
irrelevant.” Id. “Moreover, the court’s inquiry is limited to
what the officer knew at the time of the arrest and not what
has been gained from hindsight.” Harney v. City of Chicago, 702
F.3d 916, 922 (7th Cir. 2012) (citation omitted). This
knowledge is assessed from the perspective of an objectively
reasonable police officer. Abbott, 705 F.3d at 714 (citing Mary-
land v. Pringle, 540 U.S. 366, 371 (2003)).
The probable cause balance favors the government when
an arrest is executed pursuant to a warrant. “When a judge
authorizes an arrest, as one did here, ‘we presume the validity
of [the] warrant and the information offered to support it.’”
Dollard v. Whisenand, 946 F.3d 342, 354 (7th Cir. 2019) (altera-
tion in original) (quoting Camm v. Faith, 937 F.3d 1096, 1105
(7th Cir. 2019)). That is, we presume probable cause. That pre-
sumption can give way if the warrant application was “so
lacking in indicia of probable cause as to render official belief
8 No. 22-1015
in its existence unreasonable.” Id. (quoting Edwards v. Jolliff-
Blake, 907 F.3d 1052, 1060 (7th Cir. 2018)); Malley v. Briggs, 475
U.S. 335, 345 (1986). In such circumstances, “even a facially
valid arrest warrant does not shield otherwise unreasonable
conduct.” Williamson v. Curran, 714 F.3d 432, 444 (7th Cir.
2013) (quoting Juriss v. McGowan, 957 F.2d 345, 351 (7th Cir.
1992)).
The warrant validity presumption may also yield “on a
showing that the officer who sought the warrant ‘knowingly
or intentionally or with a reckless disregard for the truth,
made false statements to the judicial officer, and that the false
statements were necessary to the judicial officer’s determina-
tion that probable cause existed.’” Whitlock v. Brown, 596 F.3d
406, 410 (7th Cir. 2010) (cleaned up) (quoting Beauchamp v.
City of Noblesville 320 F.3d 733, 742–43 (7th Cir. 2003)). This
includes circumstances where an “officer intentionally or
recklessly withheld material facts from the warrant-issuing
judge.” Id. (citing United States v. Sims, 551 F.3d 640, 645 (7th
Cir. 2008)). But these exceptions are narrowly drawn by de-
sign. Brunson v. Murray, 843 F.3d 698, 709 (7th Cir. 2016). This
is because we accord “great deference” to the issuing judge’s
“determination of probable cause.” Gates, 462 U.S. at 236 (ci-
tation omitted); see Ornelas v. United States, 517 U.S. 690, 699
(1996); Edwards, 907 F.3d at 1057.
Because Myers arrested Osborne pursuant to a facially
valid warrant, we presume that the warrant and the infor-
mation in support of it are valid. Dollard, 946 F.3d at 354. My-
ers attached to his warrant application investigative reports
detailing six controlled drug purchases during which the con-
fidential source bought crack cocaine from a person he be-
lieved to be Osborne. Following the first of these purchases,
No. 22-1015 9
Myers received a tip from Sheriff Brown that the dealer, who
Myers formerly believed was named “Edward Johnson,”
could possibly be named Osborne. Using this lead, Myers dis-
covered that a “Phillip Edward Osborne” resided in Cairo,
and Myers pulled his driver’s license photo from the Secretary
of State’s database. Myers concluded that the photo matched
the dealer depicted in the drug-buy surveillance videos. And
the confidential source also “unequivocally, positively identi-
fied Osborne as the same Ed [he] had purchase[d] purported
crack cocaine from on two previous occasions” at the house
in Cairo. Because a county judge—whose neutrality Johnson
does not contest—issued the arrest warrant on a finding of
probable cause, we presume the warrant and the information
underlying it are valid. That is, we presume probable cause to
arrest Osborne.
Against this presumption, Johnson makes many allega-
tions in her affidavit, most of which are irrelevant to probable
cause. The district court correctly recognized that Johnson in-
cluded facts that Myers did not know at the time of arrest, so
they have no bearing on the analysis. As mentioned above, in
assessing probable cause, “the court’s inquiry is limited to
what the officer knew at the time of the arrest and not what
has been gained from hindsight.” Harney, 702 F.3d at 922.
Johnson was arrested on April 18, 2018, so for the probable
cause inquiry, we gauge Myers’s knowledge as of that date.
But the relevant controlled purchase dates listed in the war-
rant application are from four years earlier—between March
24 and April 22, 2014. So, for purposes of Myers’s comparison
of the driver’s license photo to the surveillance footage, the
focus must be on the photo and how Osborne looked in 2014.
Critically, there is no record evidence that when Osborne was
arrested, Myers knew the following facts that Johnson alleges:
10 No. 22-1015
• Osborne lived in Michigan and South Carolina in
2014;
• Osborne never had a mustache in 2014;
• Osborne walked with a cane in 2014; and
• Osborne had not lived in Cairo since 1980.
Accordingly, these allegations are irrelevant to the probable
cause analysis.
Still, the district court should have given weight to the rel-
evant evidence Johnson proffered. She provided the court
with a 2019 photo of Osborne and admitted he had gained
some weight between 2014 and 2019. But she also attested that
his “facial features had undergone very little change” and that
the photo accurately depicted Osborne’s “likeness as he
would have appeared in 2014.” Johnson highlighted that her
brother in 2014 would have been between 51 and 52 years old,
while the man depicted in the surveillance video appeared to
be much younger. And Johnson testified that, based on her
review, the man depicted in the surveillance footage did not
look at all like Osborne. At the time of the arrest, Myers did
not know about the 2019 photo. Nor did he know about the
description of Osborne that Johnson recalled. But they are ev-
idence of how Osborne might have looked in 2014. A reason-
able jury could find that this evidence approximates how the
driver’s license photo looked if the photo was taken not long
before 2014.
The question, then, is whether the relevant evidence in
Johnson’s affidavit is enough to overcome the presumption
that the arrest warrant was valid. To defeat the presumption
at the summary judgment stage, Johnson must show that a
genuine issue of material fact exists that a reasonable officer
No. 22-1015 11
would have known that the warrant application failed to es-
tablish probable cause, or that Myers made false statements
or omitted material facts in support of probable cause.
Brunson, 843 F.3d at 709. Johnson’s argument is straightfor-
ward: In her opinion, Osborne looks nothing like the dealer in
the surveillance videos, so no reasonable officer could have
found a match between the driver’s license photo of Osborne
and the dealer. Therefore, Myers must have adduced false
statements when he attested that the driver’s license photo
was a match. But without the driver’s license photo itself,
Johnson’s argument rests upon her allegation of what the
photo may have looked like. And bare assertions are not com-
petent summary judgment evidence. See Igasaki, 988 F.3d at
960. Without the photo, we can only guess as to whether a
reasonable officer in Myers’s position could have found a
match, or whether Myers made false statements in his warrant
application. Conjecture will not overcome the presumption
that the arrest warrant was valid. Because Johnson has failed
to rebut that presumption, Myers is entitled to judgment as a
matter of law that he had probable cause to arrest Osborne. 2
2 An additional fact, which the district court overlooked, further sup-
ports the district court’s grant of summary judgment: Myers consulted
with the local State’s Attorney to see whether he had enough evidence to
arrest Osborne. This fact “goes a long way toward solidifying [Myers’s]
qualified immunity defense” because it supports that Myers reasonably
believed he had probable cause to arrest Osborne. Burritt v. Ditlefsen, 807
F.3d 239, 251 (7th Cir. 2015) (quoting Fleming v. Livingston Cnty., 674 F.3d
874, 881 (7th Cir. 2012)). But given that Johnson failed to rebut the pre-
sumption of actual probable cause, we need not reach qualified immunity.
12 No. 22-1015
III.
This case comes down to a failure of proof. With little more
than allegations of false statements in a warrant application,
Johnson failed to rebut the presumption that the arrest war-
rant was valid. Accordingly, we AFFIRM the district court’s
grant of summary judgment.