Timothy Jay Kaprelian v. Jayn Bowers

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 25, 2011 *
Decided January 10, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐1582
TIMOTHY JAY KAPRELIAN,
Plaintiff‐Appellant,
v.
JAYN BOWERS, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 09‐CV‐609
J. P. Stadtmueller,
Judge.
O R D E R
Laurie Kemp was held captive in her home, battered, and sexually assaulted by
Timothy Kaprelian, her housemate of five years and former boyfriend. After Kemp’s sister
called and reported the crime to local police in Mt. Pleasant, Wisconsin, several officers
went to Kemp’s home. Kemp let them in, and the officers located Kaprelian asleep in a
bedroom that doubled as a home office. Kaprelian was arrested, and the officers gathered
potential evidence, including Kaprelian’s collection of bondage‐theme videos, magazines,
and photographs. Kaprelian pleaded no contest to charges of false imprisonment and
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* After examining the briefs and the record, we have concluded that oral argument is
unnecessary. See FED. R. A PP. P. 34(a)(2)(C).

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second‐degree sexual assault and was sentenced to 50 years in prison. He filed this action
under 42 U.S.C. § 1983 in June 2009, almost three years after his arrest, claiming that the
defendant police officers violated his constitutional rights by seizing and reviewing his
sexually oriented videos without a search warrant.
The defendants moved for summary judgment, arguing that no warrant was needed
to seize Kaprelian’s videos because Kemp gave consent and, moreover, the possibility that
Kaprelian might destroy evidence justified dispensing with a search warrant. The
defendants also contended that Kaprelian was foreclosed from contesting the legality of the
seizure because he litigated and lost a motion to suppress in the state criminal case. In a
statement of proposed facts supported by affidavits from Kemp and two police officers,
see E.D. Wis. Civ. L. R. 56(b)(1)(C), the defendants gave their version of what happened at
Kemp’s residence. To dispute this account, Kaprelian was obligated to contest specific
proposed facts and to support his objections with admissible evidence. See id. at 56(b)(2)(B).
He did not; instead, he submitted a one‐paragraph affidavit that says nothing relevant
about the search conducted on the day of his arrest. The defendants’ version is thus
undisputed, and we draw the following facts from their account.
The police officers dispatched to investigate were met at the door by Kemp and
allowed inside. She recounted that during the brutal attack, Kaprelian had restrained her
with handcuffs and rope, hit her, shaved her head, cut off her clothing, and sexually
assaulted her in various ways over a ten‐hour period. Her wounds, bruises, and shaved
head corroborated her story. In response to police questioning, Kemp explained that she
had stopped dating Kaprelian more than a year before but they had remained friends and
he was still living in the home, which was owned by her parents. None of the rooms were
ever locked, and she had access to all areas at all times. Kaprelian slept in a bedroom that
doubled as an office, and in that room were Kemp’s computer, printer, and television, as
well as the only land‐line telephone in the house. Clothing belonging to both of them was in
the closet, and her video camera was in a drawer of the dresser used by Kaprelian. Kemp
was always free to enter the room, and she had access to everything inside.
Kemp led the police to Kaprelian and gave them permission to search the house for
potential evidence. During the attack, Kaprelian had moved Kemp throughout the house,
including the basement, and after he was in custody, the officers began collecting evidence.
Kemp volunteered that Kaprelian had a collection of bondage‐theme videos that had been
displayed openly in the home until, at her request, he moved them into the office where
guests would not see them. The police collected (among other things) Kemp’s shorn hair, an
eye blinder, handcuffs and various other means of restraint, cut‐up clothing, computer
equipment, a video camera, syringes and steroids, and a number of videotapes, DVDs, CDs,

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magazines, and photographs. Some of the videos were bondage‐related and others were
unlabeled. A few days after the search, Kemp brought the police additional unlabeled
videotapes she had found while moving the rest of Kaprelian’s belongings out of her house.
Police later reviewed the videos at the station to see if they contained evidence of
sexual assaults committed by Kaprelian. All of the videos were found to be lawfully
possessed with two exceptions: One of the unlabeled videotapes, according to police and
Kemp, depicts part of the sexual assault for which Karpelian had been arrested, and another
depicts an earlier sexual assault committed and filmed while Kemp was unconscious. There
also was a video of Kemp and Kaprelian engaged in a consensual sexual encounter
involving bondage. Kaprelian has always maintained that all three videos depict consensual
encounters that had occurred in the past.
Before he pleaded no contest to the criminal charges, Kaprelian moved for
suppression of the evidence collected from the house. In denying that motion, the state trial
judge relied on Kemp’s consent to the search but also concluded that exigent circumstances
justified the warrantless search.
In this lawsuit, Kaprelian limits his Fourth Amendment claim to the seizure of his
sexually oriented videos. He argued in the district court that Kemp did not have actual or
apparent authority to consent to the seizure of this property and that, regardless, she did
not consent to such an extensive search and seizure. The district court entered summary
judgment for the defendants, concluding that Kemp’s undisputed consent and exigent
circumstances justified the warrantless search. The court rejected the defendants’ contention
that the state court’s adverse ruling on Kaprelian’s motion to suppress precluded his § 1983
claim. The judge thought the state court’s ruling might not be final and thus held that it did
not have preclusive effect.
On appeal Kaprelian and the defendants again debate the questions of consent and
exigent circumstances. The defendants also press their preclusion argument and dispute the
district court’s unexplained holding that the decision on Kaprelian’s motion to suppress
was not final. On the latter point, Kaprelian responds that the state court’s denial of his
motion should not be given preclusive effect because, in his view, a different question is at
issue now: In state court he argued that the police officers should not have seized anything
at all, and now he contends more narrowly that the officers violated the Fourth Amendment
by seizing his collection of sexually oriented videos.
We start with the defendants’ preclusion defense. In rejecting that defense, the
district court expressed uncertainty about the finality of the adverse ruling on Kaprelian’s

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motion to suppress, perhaps believing that Kaprelian had an appeal from his convictions
pending. In fact Kaprelian’s appeal was resolved before the district court granted summary
judgment in February 2011. See State v. Kaprelian, 2008 WL 4646900 (Wis. Ct. App. 2008), pet.
for review denied, 794 N.W.2d 899 (Wis. Jan. 18, 2011). In any event, under Wisconsin law,
which controls here, see Allen v. McCurry, 449 U.S. 90, 95–96 (1980), a pending appeal does
not deprive a judgment of its preclusive effect, Virnich v. Vorwald, No. 10‐3271, 2011 WL
6382532, at *8 (7th Cir. Dec. 20, 2011); Town of Fulton v. Pomeroy, 87 N.W. 831, 833 (1901)
(“Even an appeal does not deprive a judgment of its effect as a bar to another action. It may
be pleaded and relied upon pending such appeal with the same effect as if no appeal had
been taken.”); W ISCONSIN PLEADING AND PRACTICE § 37:103 (5th ed. May 2011) (“It is the
Wisconsin rule that an appeal from a judgment does not preclude that judgment from being
a bar to another action.”).
In Wisconsin the ruling on an issue raised and necessarily determined in a
proceeding that ended in a valid judgment may be, but is not always, preclusive in later
litigation. Rille ex rel. Rille v. Physicians Ins. Co., 728 N.W.2d 693, 702 (Wis. 2007); City of
Sheboygan v. Nytsch, 722 N.W.2d 626, 630–31 (Wis. Ct. App. 2006). Not always, because
Wisconsin courts apply issue preclusion as a matter of equitable discretion even when the
legal elements are met. Rille, 728 N.W.2d at 702–03. Judges look to a variety of factors in
evaluating whether it would be fundamentally unfair to apply issue preclusion: whether the
party opposing issue preclusion could have obtained review of the earlier adverse decision,
whether the earlier proceeding was of significantly lower quality or scope, whether the
parties’ burdens have shifted since the earlier proceeding, and whether the party opposing
preclusion lacked an adequate incentive or opportunity to litigate the issue fully in the
earlier proceeding. Paige K.B. ex rel. Peterson v. Steven G.B., 594 N.W.2d 370, 375 (Wis. 1999);
Michelle T. ex rel. Sumpter v. Crozier, 495 N.W.2d 327, 330–31 (Wis. 1993) (deriving factors
from Restatement (Second) of Judgments § 28 (1982)).
In this case, the precise issue in question—whether the seizure of Kaprelian’s videos
violated the Fourth Amendment—was actually litigated and necessarily decided in the state
criminal case. Kaprelian’s motion to suppress challenged the seizure of everything that was
taken from the house, explicitly mentioning all videos. The state judge heard argument from
Kaprelian’s attorney, and when the judge orally denied the motion, he found that the police
officers had obtained Kemp’s general consent to search the entire house and seize potential
evidence. And there is nothing unfair about applying preclusion in this case. Kaprelian
challenged the adverse suppression ruling on direct appeal, and there is no reason to
suspect that the quality or extent of the Wisconsin suppression hearing fell below the
threshold required to justify giving the ruling preclusive effect. Kaprelian had a strong

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incentive to vigorously challenge the search in the criminal proceeding, and the burden of
proof has not shifted in his favor.
The state court’s adverse ruling on Kaprelian’s motion to suppress precludes him
from relitigating the constitutionality of the seizure of his videos. Accordingly, we need not
reach Kaprelian’s other arguments about consent and exigent circumstances.
AFFIRMED.

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