Kenneth Neiman v. Thomas M. Keane

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3286
KENNETH NEIMAN,
Plaintiff-Appellant,
v.
THOMAS M. KEANE,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 98 C 3209--Charles P. Kocoras, Judge.
Argued August 9, 2000--Decided November 13, 2000
Before POSNER, RIPPLE and WILLIAMS, Circuit
Judges.
RIPPLE, Circuit Judge. After several
businesses reported that Kenneth Neiman
had refused to pay for part or all of
work performed on his home, Detective
Thomas Keane of the Deerfield, Illinois
Police Department arrested Mr. Neiman.
The detective made the arrest pursuant to
a warrant, procured by him, alleging that
Mr. Neiman had committed the offense of
theft of services. After several court
appearances, the Lake County State’s
Attorney voluntarily dismissed the
charges against Mr. Neiman. Mr. Neiman
then filed this action under 42 U.S.C.
sec. 1983; he alleged that Detective
Keane violated the Fourth Amendment by
applying for the warrant in the absence
of probable cause. The district court
granted summary judgment for Detective
Keane. We affirm the judgment of the
district court.
I
BACKGROUND

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In December 1996, Mr. Neiman hired
Bishop Heating Company to repair the
furnace in a home that he had purchased
on Overland Drive in Deerfield. According
to Mr. Neiman, a Bishop Heating employee
inspected the furnace and told him that
it merely needed to be cleaned, a service
that would cost approximately $105. After
he was quoted the price, Mr. Neiman left
the repairman in the house to work on the
furnace. When Mr. Neiman returned, he
found a bill totaling almost $400. Mr.
Neiman refused to pay the bill because he
believed the Bishop Heatingemployee had
performed unauthorized services.
Subsequently, a Bishop Heating
representative called Detective Keane at
the Deerfield Police Department and
complained that, although Bishop Heating
had repaired Mr. Neiman’s furnace, Mr.
Neiman had refused to pay the bill. Mr.
Neiman avers that Detective Keane then
called him and threatened to arrest him
if he did not pay the disputed bill.
Detective Keane, on the other hand,
insists that he called Mr. Neiman to
inquire about the unpaid bill and that
Mr. Neiman told him the bill was disputed
but nevertheless agreed to pay it.
Detective Keane admits, however, that he
told Mr. Neiman that he might initiate
charges against him if the bill was not
paid. Both parties agree that Mr. Neiman
tendered a cashier’s check for the full
amount of the bill to Detective Keane.
The detective delivered it to Bishop
Heating.
In July of 1997, Mr. Neiman complained
to the Deerfield Police Department that
someone had entered the Overland Drive
home, which was empty at the time, and
had stolen some repair tools. Detective
Keane, who was assigned to investigate
the burglary, asked Mr. Neiman for a list
of possible suspects. Mr. Neiman named
several businesses that at various times
had performed work on the burglarized
home, including Pasquesi Plumbing
("Pasquesi"), A-American Contractors and
Supplies ("A-American"), E & B
Landscaping Co. ("E & B") and Woody’s
Tree Service ("Woody’s"). During
Detective Keane’s investigation of the
burglary, these four businesses
complained that they had performed
services for Mr. Neiman, but that Mr.

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Neiman later refused to pay for some or
all of the work. Detective Keane
questioned Mr. Neiman about these
allegations of non-payment; Mr. Neiman
responded that he had not paid the
companies because they either had failed
to complete the work he had requested or
had not performed it properly.
Detective Keane avers that, as a result
of his investigation, he believed that
Mr. Neiman had engaged in a pattern of
deception by which Mr. Neiman hired
businesses to perform work on the
Overland Drive house and then fabricated
reasons to evade payment. The detective
thus sought approval from Lake County
Assistant State’s Attorney Donald
Morrison ("ASA Morrison") to file charges
against Mr. Neiman for theft of services
by deception. At first, ASA Morrison
voiced skepticism regarding whether there
was sufficient evidence to prove that Mr.
Neiman intended not to pay E & B and
Woody’s, the two businesses that were re
ceptive to prosecuting Mr. Neiman. After
Detective Keane informed him of the other
businesses’ reports of non-payment,
however, ASA Morrison concluded that
evidence of these other alleged non-
payments exhibited a pattern of conduct
that would be admissible to demonstrate
the requisite intent to obtain services
fraudulently. ASA Morrison then signed an
information charging Mr. Neiman with
theft of services from E & B and Woody’s.
The information was then presented to a
judge, who issued a warrant for Mr.
Neiman’s arrest. Eventually, however, ASA
Morrison voluntarily dropped the charges
against Mr. Neiman.
After the charges against him were
dismissed, Mr. Neiman filed this suit
alleging that Detective Keane "acting
willfully, maliciously, and without
probable cause . . . caused two criminal
charges to be instituted against [Mr.
Neiman]." R.1 at 2. Detective Keane moved
for summary judgment; he argued that the
arrest was made pursuant to a valid
warrant, and, in the alternative, that
probable cause supported the arrest. The
district court granted Detective Keane’s
motion. It concluded that Mr. Neiman had
presented no evidence that the detective
misled the prosecutor or the judge.
Because it found that the arrest was made
pursuant to a valid warrant, the court
did not address whether there was

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probable cause for the arrest. Mr. Neiman
then timely filed this appeal.
II
DISCUSSION
The parties do not disagree on the
governing legal principles. A plaintiff
cannot base a valid Fourth Amendment
claim on an arrest made under a valid
warrant. See Baker v. McCollan, 443 U.S.
137, 143-44 (1979). The officer procuring
the warrant, however, enjoys not absolute
but qualified immunity with respect to
his actions in the application of the
warrant. See Malley v. Briggs, 475 U.S.
335, 344 (1986). In Malley, the Supreme
Court made clear that an officer
procuring a warrant is held to the same
standard of objective reasonableness that
applies in the context of a suppression
hearing./1 Accordingly, the officer
procuring the warrant is immune from a
suit for damages unless it can be shown
that the "warrant application is so
lacking in indicia of probable cause as
to render official belief in its
existence unreasonable." Malley, 475 U.S.
at 344-45. We therefore have held that an
officer is not immune from suit for
procuring a warrant "if a reasonably
well-trained officer in the position of
the defendant would have known that the
action lacks probable cause and that he
should not have applied for the warrant."
Simmons v. Pryor, 26 F.3d 650, 653 (7th
Cir. 1993); see also Juriss v. McGowan,
957 F.2d 345, 350-51 (7th Cir. 1992).
This situation, we pointed out, occurs
when the officer procuring the warrant
does not inform the judicial officer of
facts that would negate probable cause or
when the officer recklessly disregards
the truth in his representations to the
judicial officer. See Olson v. Tyler, 825
F.2d 1116, 1121 (7th Cir. 1987)./2
Mr. Neiman claims that the detective
acted improperly in three ways. First,
Mr. Neiman alleges that the detective
misled ASA Morrison by not disclosing his
prior involvement in Mr. Neiman’s
disputed debt with Bishop Heating.
Second, the detective purportedly did not
conduct a reasonable investigation
regarding whether the work for which Mr.
Neiman refused payment was actually
completed. Lastly, the detective

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allegedly failed to ask Mr. Neiman for
his side of the story before arresting
him.
In our view, Mr. Neiman failed to
produce evidence that Detective Keane had
misled the prosecutor in obtaining the
warrant. When discussing the possibility
of filing charges against Mr. Neiman,
Detective Keane informed ASA Morrison
about the disputes regarding payment for
services that Mr. Neiman had with five
businesses, including Bishop Heating.
There is no evidence in the record that
the detective lied or withheld
information about the nature of the
disputes. Mr. Neiman’s denial of the
allegations of the contractors does not,
standing alone, "negate probable cause."
Olson, 825 F.2d at 1121. Rather, as
evidenced by ASA Morrison’s deposition
testimony, Detective Keane relayed
information on each incident to ASA
Morrison, and ASA Morrison determined
there was a pattern of Mr. Neiman
disputing his bills and then not paying
all or part of them. Although Detective
Keane had only circumstantial evidence of
criminal motive, we have noted that
police officers "have a hard time
evaluating competing claims about motive;
they are entitled to act on the basis of
observable events and let courts resolve
conflicts about mental states." Hebron v.
Touhy, 18 F.3d 421, 423 (7th Cir. 1994).
Furthermore, the record shows that
Detective Keane did have probable cause
to arrest Mr. Neiman even absent a valid
arrest warrant./3 Probable cause exists
at the time of arrest when reasonably
trustworthy information, facts and
circumstances would lead a prudent person
to believe that a suspect had committed
or was committing a crime. See Speigel v.
Cortese, 196 F.3d 717, 723 (7th Cir.
1999), cert. denied, 120 S. Ct. 2688
(2000). Generally, whether there is
probable cause is a jury question, but
"when there is no room for a difference
of opinion concerning the facts or the
reasonable inferences to be drawn from
them," a court may decide the issue.
Booker v. Ward, 94 F.3d 1052, 1058 (7th
Cir. 1996) (citation and internal
quotations omitted).

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In this case, the record clearly shows
that the detective investigated and
relied on sufficient information to
establish a reasonable belief that Mr.
Neiman had committed theft of services by
deception. Five different businesses
informed Detective Keane that Mr. Neiman
had not paid for all or part of the work
that they had performed on the Overland
Drive home. The businesses explained to
the detective that they had completed all
of the work for which they were hired,
which conflicts with Mr. Neiman’s claim
that the contractors had not done all of
the work or had done the work improperly.
Complaints from putative victims about
alleged crimes generally establish
probable cause unless the complaint
"would lead a reasonable officer to be
suspicious." Hebron, 18 F.3d at 422-23.
If a reasonable officer should be
suspicious that the putative
victims’complaints are not reliable, then
the officer is obliged to conduct a
further examination of the complaint. See
id. at 423. That is not the situation in
this case. Here the detective received
five independent reports from contractors
alleging that Mr. Neiman had not paid for
services. Detective Keane had reason to
believe that the complaints from the
putative victims were truthful because
all five businesses complained of the
same behavior by Mr. Neiman. Thus,
Detective Keane did not have an
additional duty to inspect Mr. Neiman’s
premises to see if the work had actually
been performed to Mr. Neiman’s
specifications. See, e.g., Kelley v.
Myler, 149 F.3d 641, 647 (7th Cir. 1998)
(holding that because third-party
complainant’s information was reliable,
police officers had no duty to
investigate whether arrestee was on
private property before arresting her for
trespass). Notwithstanding the fact that
the detective was not required to conduct
a further investigation, the record shows
that Detective Keane did conduct an
additional investigation into the alleged
crime by interviewing Mr. Neiman about
the allegations against him. That Mr.
Neiman provided a reason for not paying
the businesses does not negate the
existence of probable cause to arrest
him. See Hebron, 18 F.3d at 423.
Conclusion

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Accordingly, we affirm the grant of
summary judgment to Detective Keane.
AFFIRMED
/1 Cf. United States v. Leon, 468 U.S. 897, 922
(1984) (holding, in the context of a suppression
motion, that the officer’s reliance on the magis-
trate’s probable-cause determination must be
objectively reasonable).
/2 We cannot accept Mr. Neiman’s characterization of
the district court’s opinion as misapprehending
these principles. In any event, in light of our
de novo review of the record, any misapprehension
is of no consequence to the outcome of this
appeal. See, e.g., Malacara v. City of Madison,
224 F.3d 727, 729 (7th Cir. 2000).
/3 The district court did not address the probable
cause question, but this court may affirm the
district court’s grant of summary judgment on any
ground supported by the record. See Long v.
Shorebank Dev. Corp., 182 F.3d 548, 560 (7th Cir.
1999).

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