David Hanson v. Dane County, Wisconsin

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1759
DAVID HANSON,
Plaintiff-Appellant,
v.
DANE COUNTY, WISCONSIN, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08-cv-058-bbc—Barbara B. Crabb, Judge.
ARGUED JANUARY 21, 2010—DECIDED JUNE 15, 2010
Before EASTERBROOK, Chief Judge, and CUDAHY and
MANION, Circuit Judges.
EASTERBROOK, Chief Judge. By the time the 911
dispatcher in Dane County picked up the phone to
receive a call, the connection had been broken. The dis-
patcher called back; no one answered. Police were
alerted, and three officers soon arrived at the house
from which the call had been placed. They entered
without permission and questioned the four occupants:

-- 1 of 7 --

2 No. 09-1759
David Hanson, his wife Karen, and their daughters
Kari (then 15 years old) and Kelly (13). Eventually they
learned that during a heated argument David had
bumped Karen, who dialed 911. David was arrested for
domestic battery. Karen refused to cooperate with the
prosecution, which was dismissed. David then filed this
suit under 42 U.S.C. §1983, contending that the police
violated the fourth, fifth, and fourteenth amendments
to the Constitution. But the district court granted sum-
mary judgment to the defendants. 599 F. Supp. 2d 1046
(W.D. Wis. 2009). We recite the facts of record and rea-
sonable inferences in the light most favorable to David.
According to David, the police violated the fourth
amendment by entering without probable cause and
refusing to leave as soon as Karen asked them to go.
Like the district judge, we think that a 911 call provides
probable cause for entry, if a call back goes unanswered.
The 911 line is supposed to be used for emergencies
only. A lack of an answer on the return of an incomplete
emergency call implies that the caller is unable to pick up
the phone—because of injury, illness (a heart attack, for
example), or a threat of violence. See United States v.
Jenkins, 329 F.3d 579, 581 (7th Cir. 2003); United States v.
Richardson, 208 F.3d 626, 629–30 (7th Cir. 2000). Any of
these three possibilities supplies both probable cause
and an exigent circumstance that dispenses with the
need for a warrant. See Brigham City v. Stuart, 547 U.S. 398
(2006). There are of course other possibilities. Perhaps
a child dialed 911 by mistake, or perhaps the ringer
had been set to silent so the phone did not alert
anyone to the incoming call from the 911 dispatcher. But

-- 2 of 7 --

No. 09-1759 3
probable cause just means a good reason to act (the fourth
amendment protects people against “unreasonable”
searches and seizures); it does not mean certainty, or
even more likely than not, that a crime has been com-
mitted or a medical emergency is ongoing. See Illinois v.
Gates, 462 U.S. 213, 235 (1983).
Karen asked the police to leave, but officers who
have probable cause need not cancel an investigation on
request. The fourth amendment does not contain a least-
restrictive-alternative rule. See Skinner v. Railway Labor
Executives’ Association, 489 U.S. 602, 629 n.9 (1989). Nor
did Karen’s statement that she was unharmed establish
that there was no need for further inquiry. See United
States v. Brooks, 367 F.3d 1128, 1137 (9th Cir. 2004); Fletcher
v. Town of Clinton, 196 F.3d 41, 50 (1st Cir. 1999). To the
contrary, her statements supported the officers’ actions.
Karen told the police that she had called 911 but
could not remember why; she said that she and David
had been arguing but that she could not remember the
subject. The argument and call were so recent that rea-
sonable officers could not have believed Karen’s asser-
tion that her memory had failed. Her obviously false
statements, plus her nervous demeanor, led the police
to think that she had been threatened or feared retalia-
tion should she give honest answers. Many victims of
domestic violence fear that the danger they face will
increase if they assist police or prosecutors. See, e.g.,
Eve S. Buzawa & Carl G. Buzawa, Domestic Violence: The
Criminal Justice Response 177–89 (3d ed. 2002); Tom
Lininger, Prosecuting Batterers after Crawford, 91 Va. L. Rev.
747, 768–70 (2005) (collecting studies). So the police

-- 3 of 7 --

4 No. 09-1759
acted reasonably by continuing their investigation and
questioning Karen and David out of each other’s presence.
And, given the lack of cooperation by David and Karen,
it was also reasonable for the officers to ask Kari and
Kelly for information. This questioning was civil and
ended promptly after the daughters said that they
did not know what their parents had been arguing
about and did not believe that a physical altercation
had occurred.
David insists that the questions to his daughters
violated principles of substantive due process. Yet the
daughters are not plaintiffs, either directly or through
a next friend. David’s suit depends on his rights, not
theirs. Substantive due process is a doctrine limited to
impingement on fundamental rights, see Washington v.
Glucksberg, 521 U.S. 702, 719-22 (1997), and no decision
of which we are aware holds that parents have a funda-
mental right to prevent police from questioning their
children. The public has a right to every person’s evi-
dence. United States v. Bryan, 339 U.S. 323, 331 (1950).
Courts regularly find no constitutional problem in
posing questions to minors over their parents’ opposition.
See, e.g., United States v. Hollingsworth, 495 F.3d 795,
800–03 (7th Cir. 2007). Police must not act arbitrarily
when questioning children, see Doe v. Heck, 327 F.3d
492, 517–26 (7th Cir. 2003), but it was not arbitrary
to find out whether Kari and Kelly knew what had hap-
pened.
Although “familial relations” are fundamental, see
Troxel v. Granville, 530 U.S. 57, 65 (2000), the police did not

-- 4 of 7 --

No. 09-1759 5
break up the Hanson family; they just asked some ques-
tions of the daughters to learn whether a crime had
occurred. Police don’t need probable cause to ask ques-
tions, because the subject can refuse to answer. See United
States v. Childs, 277 F.3d 947 (7th Cir. 2002) (en banc).
“Familial relations are fundamental” is a principle at
too high a level of generality to be useful in con-
sidering whether police may ask questions of a family’s
minor children. Cf. Michael H. v. Gerald D., 491 U.S. 110,
118–27 (1989) (plurality opinion).
David’s arrest did more to separate members of the
family than a few minutes’ questioning of his daughters
could do, but he does not contend that arrests of people
with children are unconstitutional; brief questioning
thus cannot be unconstitutional either. That the ques-
tioning took place out of the parents’ presence does not
change the analysis. Private questioning of witnesses
reduces the risk that a suspect (such as David) would
induce a witness to give untruthful answers. See Davis v.
Washington, 547 U.S. 813, 830 (2006); cf. White v.
Markham, 310 F.3d 989, 996 (7th Cir. 2002). Whether the
police should respect parents’ objections to questioning
their children is a matter for wise police practice, and
legislative decision, rather than constitutional-tort litiga-
tion under §1983.
This leaves David’s contention that the police violated
his privilege against self-incrimination when they ques-
tioned him without first delivering the warnings that
Miranda v. Arizona, 384 U.S. 436 (1966), requires before
custodial interrogation. One officer led David to his

-- 5 of 7 --

6 No. 09-1759
garage, so that he could be questioned separately from
Karen. It was in the garage that David admitted
bumping Karen during the argument, an admission that
led to his arrest. The district court resolved this issue
on the basis of qualified immunity, ruling that a rea-
sonable officer would not have understood that the
questioning was “custodial.” See Beckwith v. United
States, 425 U.S. 341 (1976), which holds that questioning
a person at home is not apt to be coercive, and thus is not
“custodial,” if the person has not been arrested. The
officer did not place David under arrest until after he
made his admission. Though David says that he
thought himself in custody, the standard is objective.
It is unnecessary to decide whether the balance of
objective indicators points toward a finding of “custodial
interrogation,” because the privilege against self-incrimina-
tion, and thus the Miranda doctrine, concerns the use
of compelled statements in criminal prosecutions. Police
cannot “violate Miranda,” despite colloquial usage. The
constitutional rule is the privilege; the Miranda warnings
are designed to ensure that the privilege is not waived
without understanding (and, if the suspect requests
it, legal assistance). There’s nothing wrong with com-
pelling people to speak. It is done all the time through
formal grants of immunity. See 18 U.S.C. §§ 6001–05.
And the results of interrogation without Miranda
warnings are admissible in civil cases, something that
would be impossible if the interrogation itself violated
the Constitution. See Baxter v. Palmigiano, 425 U.S. 308,
315 (1976) (Miranda warnings not necessary in custodial
interrogation if the ensuing statements are used in
prison discipline rather than criminal prosecution).

-- 6 of 7 --

No. 09-1759 7
We know from Chavez v. Martinez, 538 U.S. 760 (2003),
that interrogation that yields incriminatory evidence
never used in court does not support an award of dam-
ages. Id. at 766–70 (plurality opinion), 777–79 (Souter, J.,
concurring); Sornberger v. Knoxville, 434 F.3d 1006, 1024–25
(7th Cir. 2006) (“[a]fter Chavez . . . violation of the Miranda
safeguards cannot provide the basis for §1983 liability
without use of a suspect’s statements against him in a
‘criminal case.’ ”). See also Buckley v. Fitzsimmons, 919
F.2d 1230, 1244 (7th Cir. 1990), reversed in part with
respect to other issues, 509 U.S. 259 (1993). David
does not contend that his statements were introduced
into evidence in a criminal prosecution. There was no
trial, and although he appeared in court twice—once to
plead not guilty and once for a pretrial conference—he
does not say that his statement was introduced into
evidence on either occasion. See Sornberger, 434 F.3d at
1024 (concluding that any “courtroom use” of a state-
ment derived from custodial interrogation is covered by
the privilege and thus Miranda). Unless simply being
arrested is enough to make the preceding interrogation
unconstitutional, there is no problem. Yet an arrest does
not entail the use of evidence in a criminal prosecution;
the arrest precedes the prosecution. The police there-
fore did not violate David’s privilege against self-incrimi-
nation, whether or not they should have given him
Miranda warnings.
AFFIRMED
6-15-10

-- 7 of 7 --