In the

United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 07-1791

M ICHELLE W HEELER,
                                                Plaintiff-Appellant,
                                 v.

R ONALD L AWSON, individually and
in his official capacity as an
officer of the Starke County
Sheriff’s Department, R OBERT SIMS,
in his official capacity as
Sheriff of Starke County, and
S TARKE C OUNTY C OMMISSIONERS,
                                             Defendants-Appellees.
                          ____________
             Appeal from the United States District Court
      for the Northern District of Indiana, South Bend Division.
            No. 05 C 421—Robert L. Miller, Jr., Chief Judge.
                          ____________

      A RGUED M AY 15, 2008—D ECIDED A UGUST 21, 2008
                          ____________



 Before R IPPLE, K ANNE and W ILLIAMS, Circuit Judges.
 R IPPLE, Circuit Judge. Michelle Wheeler filed this action
under 42 U.S.C. § 1983 against Ronald Lawson, individu-
2                                                    No. 07-1791

ally and in his official capacity as an officer of the Starke
County Sheriff’s Department. Ms. Wheeler alleges that
Detective Lawson violated the Fourth Amendment, as
made applicable to the States by the Fourteenth Amend-
ment, by unlawfully arresting her without probable
cause for maintaining a common nuisance. Detective
Lawson filed a motion for summary judgment, which the
district court granted.1 Ms. Wheeler timely appeals.2
  For the reasons set forth in this opinion, we affirm the
judgment of the district court.


                                 I
                        BACKGROUND
                                A.
  In April 2004, Ms. Wheeler resided with her three
children in a home in Knox, Indiana. During this time, she
was separated from her husband, Charles Darren Wheeler
(“Darren”), who lived fifteen to twenty minutes away;
Darren visited Ms. Wheeler and the children about once
a week. The residence, which was owned jointly by Ms.
Wheeler and Darren, had an attached two-car garage,
which is not at issue in this case. It also had a separate
detached garage (or the “garage”) that was located about
500 to 600 feet from the residence. Ms. Wheeler’s arrest
stems from a fire that occurred on April 6, 2004, in the
detached garage.


1
    The district court had jurisdiction under 28 U.S.C. § 1331.
2
    Our jurisdiction is premised on 28 U.S.C. § 1291.
No. 07-1791                                                  3

   The two-car garage was outfitted with a video surveil-
lance camera, which was focused on the door of the
detached garage and part of the backyard area. The record
is silent as to when the camera was installed. The camera
allowed an occupant to monitor the area from a video
screen inside the residence. This camera, however, would
not allow someone to monitor activity inside the garage.
The record does not disclose the size of the garage, al-
though it does indicate that the garage had more than
one room. At her deposition in this case, Ms. Wheeler
testified that the garage contained tools, a go-cart, bicycles,
a lawnmower, patio equipment, clothing and other items.
The garage also contained propane tanks for a gas grill,
fuel for the go-cart, paint, starter fluid and carburetor
fluid. At her deposition, Ms. Wheeler further testified that
she went to the garage about once a week and that her
children used the garage with more frequency to access
the bicycles and go-cart.
  On April 5, Darren came to Ms. Wheeler’s residence with
Mark Dillard, Ms. Wheeler’s cousin. The men told Ms.
Wheeler that they were going to work on Mark’s van in the
garage. Ms. Wheeler did not go into the garage that day.
She only had contact with Darren, who came inside the
house to make himself lunch and dinner, although Darren
ate by himself both times. The men worked in the garage
from 10:00 a.m. to 8:00 p.m. At 8:00 p.m., Darren
informed Ms. Wheeler that he was leaving and that Mark
was going to continue working on the van inside the
garage. Shortly after Darren left, Ms. Wheeler called him
to request that he buy her a pack of cigarettes.
4                                                 No. 07-1791

  Darren returned shortly thereafter with the requested
cigarettes, and he ran into Rusty Dillard in the driveway of
Ms. Wheeler’s residence. Rusty is Mark’s brother and
Ms. Wheeler’s cousin. Darren gave the cigarettes to Ms.
Wheeler and left. Unbeknownst to Ms. Wheeler, Rusty
Dillard joined Mark Dillard inside the garage.
  Ms. Wheeler went to bed at approximately 10:30 or 11:00
p.m.; she testified that she had assumed that Mark had left
the garage by this time. At about 1:00 a.m., Ms. Wheeler
was awakened by a loud explosion that she subsequently
described as sounding like “dynamite.” R.33, Ex. A at 58.
From her bedroom window, she saw smoke rolling out
from the back of the garage. Ms. Wheeler called 911. Next,
she called her husband, Darren, and her cousin, Mark
Dillard, to inform them of the fire. Ms. Wheeler learned
(for the first time) from Mark that Rusty had been in the
garage that evening.
  Detective Ronald Lawson of the Starke County Sheriff’s
Department arrived on the scene shortly thereafter. Two
officers on the scene informed Detective Lawson that there
was a body in the garage and that Ms. Wheeler had a video
system set up for the garage area. Inside the garage,
Detective Lawson noticed that the body was near the
point of origin of the fire. In that area, there was a furnace,
two propane tanks that were ruptured, thirty cans of
starter fluid and lithium batteries that had been broken
apart. Someone had used a can-opener to open the bot-
tom of the starter fluid cans. Detective Lawson also
found a clear plastic bag with a powdery substance that
later was determined to be methamphetamine; autopsy
No. 07-1791                                                   5

tests performed on Rusty Dillard revealed the presence
of methamphetamine in his system.3
   Detective Lawson noticed that the valves of the
propane tanks had been altered, and, based on his prior
experience, Detective Lawson knew that these tanks and
the type of connection on them often are used in metham-
phetamine labs. The previous year, Detective Lawson had
investigated a death caused during the explosion of a
methamphetamine lab, and he had noted that the scene
at Ms. Wheeler’s garage had many of the same characteris-
tics. For example, the propane cylinders contained am-
monia residue commonly found in the form of anhydrous
ammonia (liquid) farm fertilizer, and the debris on the
floor near Rusty Dillard’s body had a strong odor of
ammonia. Inside the furnace, the police found battery
casings and aluminum foil. Batteries are commonly
broken apart to obtain lithium metal to assist in the
methamphetamine manufacturing process; aluminum foil
is commonly used to smoke methamphetamine. The
Detective also searched the white Ford pick-up truck in
Ms. Wheeler’s driveway. The truck, which had been
driven by Rusty Dillard, contained a full can of starter
fluid.



3
  Throughout the brief investigation, Detective Lawson was
assisted by Detective Daniel Anderson, also of the Starke County
Sheriff’s Department and a specialist in drug and methamphet-
amine cases. Detectives Lawson and Anderson also received
assistance in processing the scene from Trooper Thomas Quinn
of the Indiana State Police Clandestine Laboratory Team.
6                                                   No. 07-1791

   Detective Lawson had only two brief talks with Ms.
Wheeler, immediately before and immediately after the
fire was extinguished. During these short conversations,
Ms. Wheeler told the Detective that she did not know the
cause of the fire, that she was not aware that Rusty
Dillard had been inside the garage and that she was not
aware of any methamphetamine production taking place
on her property. Ms. Wheeler also informed Detective
Lawson that she had called her husband to inform him
of the fire; she mentioned to the Detective that she and
Darren were separated. Detective Lawson otherwise did
not interview Ms. Wheeler about the fire, the metham-
phetamine or the methamphetamine-related items found
inside the garage. Prior to arresting her, Detective Lawson
did not ask Ms. Wheeler whether she had any personal
items in the garage, nor did he question her about her
use of the garage. Detective Lawson spoke only briefly
with Darren Wheeler on the night of the incident. Neither
he nor any other officer conducted any follow-up inter-
views with Darren. Detective Lawson never interviewed
Mark Dillard, who was the last individual to see Rusty
Dillard alive inside the garage.
  The Detective subsequently signed an affidavit of
probable cause;4 an information was filed on June 9


4
  A statement attached to the probable cause affidavit noted
that a batch of one ounce of methamphetamine requires the use
of six to eight cans of starter fluid (ether) and about one quart
of liquid anhydrous ammonia. The affidavit noted that, inside
Ms. Wheeler’s garage, the officers found two cylinders with a
                                                    (continued...)
No. 07-1791                                                      7

charging Ms. Wheeler with maintaining a common nui-
sance, which is prohibited by Indiana Code § 35-48-4-13.
About two weeks later, on June 22, Detective Lawson
arrested her on the charge of maintaining a common
nuisance. In November 2004, the charge against her was
dismissed on the motion of the Starke County Prosecutor’s
Office.5


                                B.
  Ms. Wheeler filed this action under 42 U.S.C. § 1983
against Detective Lawson, individually and in his official
capacity as an officer of Starke County Sheriff’s Depart-
ment.6 Ms. Wheeler alleges that Officer Lawson violated



4
  (...continued)
capacity of six gallons of liquid anhydrous ammonia and over
30 cans of starter fluid. The affidavit stated: “Items in the
amounts found show several batches of illegal [m]etham-
phetamine[] have been manufactured at the Wheeler residence
before the fire and explosion.” R.33, Ex. J at 4.
5
  Ms. Wheeler’s section 1983 action therefore is not barred
under Heck v. Humphrey, 

(1994).
6
  Ms. Wheeler’s complaint also named as defendants Robert
Sims, in his capacity as Sheriff of Starke County, and the County
Commissioners of Starke County, Indiana. The district court
granted summary judgment with respect to these defendants.
The court also held that Ms. Wheeler abandoned her claims
based on alleged violations of the Fifth and Fourteenth Amend-
ments and could not maintain an action for a violation of Article
                                                     (continued...)
8                                               No. 07-1791

the Fourth Amendment, as made applicable to the
States by the Fourteenth Amendment, by unlawfully
arresting her. Officer Lawson filed a motion for summary
judgment, which the district court granted. The court
concluded that Detective Lawson had probable cause to
arrest Ms. Wheeler for maintaining a common nuisance
under Indiana law. Ms. Wheeler timely appeals the judg-
ment of the district court.


                             II
                      DISCUSSION
A. Standard of Review
  This court reviews de novo a grant of summary judg-
ment. Hurst-Rosche Eng’rs, Inc. v. Commercial Union Credit
Ins. Co., 

, 1341 (7th Cir. 1995). All facts and
reasonable inferences must be construed in favor of the
non-moving party, here, Ms. Wheeler. Magin v. Monsanto
Co., 

, 686 (7th Cir. 2005). We do not evaluate
the weight of the evidence, judge the credibility of wit-
nesses or determine the ultimate truth of the matter; rather,
we determine whether there exists a genuine issue of
triable fact. Anderson v. Liberty Lobby, 

, 249-50
(1986). Summary judgment is proper if “the pleadings,
depositions, answers to interrogatories, and admissions



6
   (...continued)
I, § 11 of the Indiana Constitution. Ms. Wheeler does not
appeal any of these determinations.
No. 07-1791                                                 9

on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.” 

(citing Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 

, 322-23 (1986)). The
moving party bears the initial burden of demonstrating
that these requirements have been met; it may discharge
this responsibility by showing “that there is an absence of
evidence to support the non-moving party’s case.” 

. To overcome a motion for summary
judgment, the non-moving party must come forward
with specific facts demonstrating that there is a genuine
issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 

, 586 (1986). The existence of a mere
scintilla of evidence, however, is insufficient to fulfill
this requirement. 

. The non-
moving party must show that there is evidence upon
which a jury reasonably could find for the plaintiff. 

Wheeler’s Unlawful Arrest Claim
  Probable cause is an absolute defense to a claim of
wrongful arrest asserted under section 1983 against police
officers. Wagner v. Wash. County, 

, 836 (7th Cir.
2007) (per curiam); Potts v. City of Lafayette, 

,
1113 (7th Cir. 1997). A police officer has probable cause to
arrest “if, at the time of the arrest, the ‘facts and circum-
stances within the officer’s knowledge . . . are sufficient
to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
10                                                 No. 07-1791

suspect has committed, is committing, or is about to
commit an offense.’ ” 

(quoting
Michigan v. DeFillippo, 

, 37 (1979)) (alteration
in original); see also Beck v. Ohio, 

, 90 (1964);
Maxwell v. City of Indianapolis, 

, 434 (7th Cir.
1993). Probable cause, therefore, “does not require evi-
dence sufficient to support a conviction, nor even evidence
demonstrating that it is more likely than not that the
suspect committed a crime.” United States v. Sawyer, 

, 679 (7th Cir. 2000) (explaining that there must be
a “probability or substantial chance of criminal activity
on the suspect’s part”). In determining whether an officer
had probable cause, the court steps into the shoes of a
reasonable person in the position of the officer. Mustafa v.
City of Chicago, 

, 547 (7th Cir. 2006). Conse-
quently, we “evaluate[] probable cause ‘not on the facts as
an omniscient observer would perceive them,’ but rathe r
‘as they would have appeared to a reasonable person in
the position of the arresting officer.’ ” 

v.
Myler, 

, 646 (7th Cir. 2000)). The probable
cause determination must be made by a jury “if there is
room for a difference of opinion concerning the facts or the
reasonable inferences to be drawn from them.” 

(explaining that, “[i]f the underlying facts
supporting the probable cause determination are not in
dispute, the court can decide whether probable cause
exists”).
  Detective Lawson submits that he had probable cause
to arrest Ms. Wheeler for maintaining a common nuisance.
The Indiana Code defines the offense of “maintaining
a common nuisance” as follows:
No. 07-1791                                                  11

    A person who knowingly or intentionally maintains a
    building, structure, vehicle, or other place that is used
    one (1) or more times:
        (1) by persons to unlawfully use controlled sub-
        stances; or
        (2) for unlawfully:
              (A) manufacturing;
              (B) keeping;
              (C) offering for sale;
              (D) selling;
              (E) delivering; or
              (F) financing the delivery of;
        controlled substances, or items of drug parapher-
        nalia as described in IC 35-48-4-8.5;
    commits maintaining a common nuisance, a Class D
    felony.
Ind. Code § 35-48-4-13(b). The knowledge element of this
crime may be established by showing that the defendant
had constructive possession of the drugs and other contra-
band. Bradley v. State, 

, 212 (Ind. Ct. App.
2002); see also Jones v. State, 

, 65 (Ind. Ct. App.
2004). To establish constructive possession, the defendant
must have had (1) the intent to maintain dominion and
control over the drugs and (2) the capability to maintain
dominion and control over the drugs. 

; Chandler v. State, 

, 467-68 (Ind. Ct. App.
2004). Indiana courts have defined “control” as “the
12                                                  No. 07-1791

power, by way of legal authority, or in a practical sense, to
control the place where, or the items in which, the sub-
stance is found.” 

(internal quotation
marks and citation omitted). To prove the intent element,
the Indiana courts have held that
     the State must demonstrate the defendant’s knowledge
     of the presence of the contraband. This knowledge
     may be inferred from either the exclusive dominion
     and control over the premises containing the contra-
     band or, if the control is non-exclusive, evidence of
     additional circumstances pointing to the defendant’s
     knowledge of the presence of the contraband.

Under Indiana law, therefore, when
possession is non-exclusive, constructive possession may
be proved with the assistance of additional circumstances
corroborating the defendant’s knowledge of the contra-
band. These additional circumstances include: (1) incrimi-
nating statements given by the defendant; (2) attempted
flight or furtive gestures; (3) a drug manufacturing setting;
(4) proximity of the defendant to the contraband;
(5) contraband in plain view; and (6) location of the
contraband in close proximity to items owned by the
defendant.7 Id.; see also 

.



7
  Both parties contend (and the district court assumed) that the
crime of maintaining a common nuisance requires the State to
prove a continuous or recurring violation. As support for this
proposition, the parties rely on Wells v. State, a 1976 case that
interpreted the term “maintaining” to require a “showing of
                                                    (continued...)
No. 07-1791                                                      13

   These circumstances are probative and corroborative of
actual knowledge because their presence increases the
likelihood that the defendant observed or was aware of
the contraband. Concomitantly, the presence of these
corroborating circumstances decreases the likelihood that
the concept of constructive knowledge will be stretched
so broadly that it will ensnare innocent bystanders. See
Godar v. State, 

, 15 (Ind. Ct. App. 1994) (“Mere
presence where drugs are located or association with
persons who possess drugs is not alone sufficient to
support a finding of constructive possession.”); Snyder
v. State, 

, 525 (Ind. Ct. App. 1984) (recogniz-


7
  (...continued)
more than an isolated or casual instance of the prohibited
activity.” 

, 46 (Ind. Ct. App. 1976). After Wells,
Indiana courts continued to require such a showing. See, e.g.,
Bryant v. State, 

, 302 (Ind. 1995). In 1998, however,
the Indiana General Assembly amended Indiana Code § 35-48-4-
13(b) to add the phrase “one (1) or more times.” 1998 Legis. Serv.
P.L. 31-1998. Compare Ind. Code § 35-48-4-13(b) (2008), with Ind.
Code § 35-48-4-13(b) (1997). As a result, the statute currently
states: “A person who knowingly or intentionally maintains a
building, structure, vehicle, or other place that is used one (1) or
more times.” Ind. Code § 35-48-4-13(b). This amendment
abrogates the holding of Wells, which required proof of more
than an “isolated or casual instance of the prohibited activity.”

. Indeed, the Indiana Court of Appeals
took notice of this amendment in Hale v. State, 

,
644 (Ind. Ct. App. 2003). The crime of maintaining a common
nuisance, accordingly, no longer requires a showing of more
than an isolated or casual instance of the prohibited activity.
14                                                No. 07-1791

ing the importance of “link[ing] the accused with the
substance in question”); Watt v. State, 

, 98
(Ind. Ct. App. 1980) (“[M]ere presence in the place [where
the contraband is found] is not sufficient proof of intent to
possess the substance.” (internal quotation marks omit-
ted)); see also United States v. DiNovo, 

, 201 (7th
Cir. 1975). The Indiana courts have recognized the doc-
trine’s breadth, and, at least in the sufficiency of the
evidence context, they have exercised vigilance to main-
tain the doctrine within its proper and intended scope.
See, e.g., 

(reversing a jury
verdict because “the contraband was found in an undis-
closed location in a middle bedroom and in the living
room” and “not close to or intermingled with items” that
the defendant owned); Smith v. State, 

, 461
(Ind. Ct. App. 2003) (overturning a jury verdict because
there was an absence of evidence that the defendant was
in close “proximity to the contraband” or that the contra-
band was found in the defendant’s “plain view”). With
these principles in mind, we turn to the parties’ submis-
sions.
  Detective Lawson asserts that two of the additional
circumstances corroborating a defendant’s knowledge—“a
drug manufacturing setting” and “contraband [] in close
proximity to items owned by the defendant”—are present
in this case. He contends that Ms. Wheeler visited the
garage on a weekly basis and that the contraband in the
garage was found within close proximity to items belong-
ing to her. The Detective further explains that numerous
items used to manufacture methamphetamine and meth-
amphetamine itself were found inside the garage, in-
No. 07-1791                                             15

dicating that her personal items were in a drug manufac-
turing setting. These circumstances, according to the
Detective, along with the security camera that was focused
on the entrance of the garage, were sufficient to give him
probable cause to arrest Ms. Wheeler for maintaining
a common nuisance.
  We believe that, under the particular facts of this case,
these additional circumstances did not create probable
cause to believe that Ms. Wheeler knowingly or intention-
ally had maintained a common nuisance. As a preliminary
matter, we must observe that the record suggests that
the investigation about Ms. Wheeler’s conduct was under-
taken in a rather nonchalant manner. Aside from short
discussions with her immediately before and immediately
after the fire was extinguished, Detective Lawson did not
interview Ms. Wheeler about the fire or about the metham-
phetamine and methamphetamine-related items found
inside the garage. During these two brief conversations,
Detective Lawson learned only that Ms. Wheeler did not
know the cause of the fire, that she was not aware that
Rusty Dillard had been inside the garage and that she was
not aware of any methamphetamine production taking
place on her property. Detective Lawson did not ask
Ms. Wheeler whether she had any personal items in the
garage, and he did not question her about the frequency
with which she used the garage. Detective Lawson also
spoke only briefly with Darren Wheeler on the night of the
incident, and neither the Detective nor any other officer
conducted any follow-up interviews with him, despite
his obvious and more prominent use of the garage. Even
more notable is Detective Lawson’s failure to interview
16                                                 No. 07-1791

Mark Dillard, who was the last individual to see Rusty
Dillard alive inside the garage.
  These considerations are particularly relevant because,
as we have noted, the probable cause inquiry turns on
the evidence and circumstances known to the officer at
the time of arrest. “Any evidence . . . that came to light after
the arrest,” we have explained, “is not relevant to the
probable cause inquiry.” Maltby v. Winston, 

, 557
(7th Cir. 1994). Before the district court and on appeal,
Detective Lawson asserts that Ms. Wheeler stored numer-
ous personal items, including bicycles, a lawnmower,
patio equipment and clothing, inside the garage and that
she used the garage about once a week. In support of this
factual assertion, however, Detective Lawson relies only
upon Ms. Wheeler’s deposition that was taken for pur-
poses of this case. Critically, nothing in Detective Lawson’s
deposition or in the reports that were created in the course
of the investigation indicates that, at the time that he
arrested Ms. Wheeler, he knew that she kept personal
items in the garage or that she used the garage once a
week. This absence of evidence thus eliminates one of
the corroborating circumstances upon which Detective
Lawson relies.
  The second corroborating factor to which Detective
Lawson points is that there was evidence of a drug manu-
facturing setting. A drug manufacturing setting, how-
ever, is probative and corroborative of a defendant’s
knowledge of contraband only to the extent that the
No. 07-1791                                                     17

defendant had been around the manufacturing setting.8
Detective Lawson, as we already have noted, had no
evidence regarding Ms. Wheeler’s use of the garage and no
evidence from which he could infer reasonably that
Ms. Wheeler had entered the garage recently.
  In any event, even if there had been such evidence, we
believe that this factor alone would have been insufficient
to give Detective Lawson probable cause to arrest Ms.
Wheeler. Although the property on which the contraband
was found was owned jointly, Detective Lawson knew that
Ms. Wheeler and her husband were living apart at the time
that the fire occurred. From his discussion with Darren,
Detective Lawson also knew that the contraband in the
garage was found after Ms. Wheeler’s husband had spent
the entire day in the garage with Mark Dillard. At no
point in the day did Ms. Wheeler enter the garage, and, as
far as she was aware, the men were performing work on
Mark Dillard’s van. Both Ms. Wheeler and Darren told
Detective Lawson that Ms. Wheeler was unaware that
Rusty Dillard had arrived at the garage that evening and
had remained inside after Darren and Mark Dillard left.
Only after the explosion, when Ms. Wheeler called her


8
  See, e.g., Floyd v. State, 

, 210-11 (Ind. Ct. App.
2003) (explaining that “the officers found many of the items
commonly used in manufacturing methamphetamine scattered
around the kitchen and living room in plain view”); 

(noting that authorities found digital scales, plastic
baggies, ties and over forty-three grams of crack cocaine and
that many of these items were found in multiple rooms of the
house).
18                                              No. 07-1791

husband and Mark to inform them of the fire, did she learn
that Rusty Dillard had been in the garage.
   All of the methamphetamine-related items found in the
garage, moreover, are common items that would not
raise a layperson’s suspicion about drug production. The
presence of these items might have appeared particularly
commonplace because Ms. Wheeler’s husband performed
mechanical work on the side to supplement his carpentry
job. With respect to the other items stored in the garage,
there is no indication that, on days prior to the time of the
fire, they were used in the manufacturing of methamphet-
amine. Although Detective Lawson found propane tanks
and starter fluid, he also found a grill and a go-cart.
Notably, there is no suggestion in the record that Detective
Lawson knew that, prior to April 6, these common items
had been kept together or arranged in a manner resembling
a methamphetamine manufacturing setting. The record
contains no evidence that, on the days prior to the fire
when Ms. Wheeler may have visited the garage, the items
had been kept in such a manner. In any event, nothing
indicated to Detective Lawson that Ms. Wheeler had
entered the garage while those items were so arranged.
  More fundamentally, the record does not indicate how
long these items had been in the garage. Although a clear
bag containing methamphetamine was found near
Rusty Dillard’s body, Detective Lawson did not find
anything indicating that this methamphetamine had been
there prior to Rusty’s arrival that evening. Indeed, the
record supports an inference to the contrary—namely, that
Rusty Dillard had produced the methamphetamine
No. 07-1791                                                  19

himself that night. The pick-up truck that Rusty drove
contained starter fluid, and laboratory testing further
revealed that, at the time of his death, Rusty had metham-
phetamine in his system.
  Finally, Detective Lawson attached great significance
to the security camera that had been installed on the
garage. The presence of the security camera, standing
alone, however, was insufficient to provide probable
cause to arrest Ms. Wheeler for maintaining a common
nuisance. The garage contained many valuable items,
including a go-cart and a grill, and, therefore, the presence
of the security camera does not corroborate the notion
that Ms. Wheeler knew that Rusty Dillard or anyone else
had been manufacturing methamphetamine inside the
garage.
   There is no suggestion in the record, nor does Detective
Lawson contend, that the other factors that are corrobora-
tive of knowledge were present here. Ms. Wheeler called
911 immediately after she was awakened by the explosion,
and she did not make any incriminating statements; nor
does Detective Lawson indicate that there was anything
suspicious about Ms. Wheeler’s answers to his questioning
at the crime scene. In short, Detective Lawson did not
have any evidence tying Ms. Wheeler to the methamphet-
amine production other than her familial bond (cousin) to
the individual, Rusty Dillard, who was involved in that
illicit activity, and the fact that she resided on the property.
  There is no evidence in the record that Detective Lawson
knew, at the time that he arrested Ms. Wheeler, that she
either used the garage with any frequency or that she
20                                                 No. 07-1791

had personal items stored in the garage. Furthermore,
Detective Lawson could not infer reasonably that the
methamphetamine-related items had been arranged in a
manner resembling a methamphetamine manufacturing
setting prior to the date of the fire. Consequently, we
conclude that, as a matter of law, Detective Lawson did
not have probable cause to arrest Ms. Wheeler.9
    We shall now turn to the issue of qualified immunity.


C. Qualified Immunity
  The doctrine of qualified immunity shields from liability
public officials who perform discretionary duties, Belcher
v. Norton, 

, 749 (7th Cir. 2007), and it thus
protects police officers “who act in ways they reasonably
believe to be lawful.” Anderson v. Creighton, 

,



9
  Detective Lawson contends that he also had probable cause to
arrest Ms. Wheeler for constructive possession of methamphet-
amine or, alternatively, with possession of chemical precursors
to methamphetamine, which is prohibited by Indiana Code § 35-
48-4-14.5(c). Arrest for the former would have required that the
Detective have probable cause to believe that Ms. Wheeler
had constructive knowledge of the methamphetamine found
in the garage, a premise that we have rejected. Arrest for
possession of chemical precursors to methamphetamine requires
proof that the defendant possessed those precursors with the
intent to manufacture methamphetamine. 

does
not disclose any evidence from which the Detective could have
inferred that Ms. Wheeler intended to manufacture metham-
phetamine.
No. 07-1791                                                     21

638-39 (1987). The defense provides “ample room for
mistaken judgments” and protects all but the “plainly
incompetent and those who knowingly violate the law.”
Hunter v. Bryant, 

, 227 (1991) (quoting Malley v.
Briggs, 

, 343 (1986)); Clash v. Beatty, 

, 1048 (7th Cir. 1996). Qualified immunity protects
those officers who make a reasonable error in determining
whether there is probable cause to arrest an individual.

; Belcher v. Norton, 

,
749 (7th Cir. 2007). The Supreme Court of the United States
has articulated a two-part test for qualified immunity:
(1) whether the facts, taken in the light most favorable to
the plaintiff, show that the defendant violated a con-
stitutional right; and (2) whether that constitutional right
was clearly established at the time of the alleged violation.
Saucier v. Katz, 

, 201 (2001).1 0
  Although qualified immunity is an affirmative defense,
Sparing v. Vill. of Olympia Fields, 

, 688 (7th Cir.
2001), once the defense is raised, it becomes the plaintiff’s
burden to defeat it, Mannoia v. Farrow, 

, 457
(7th Cir. 2007); Spiegel v. Cortese, 

, 723 (7th Cir.
1999). A plaintiff may defeat a qualified immunity defense
by “point[ing] to a clearly analogous case establishing a
right to be free from the specific conduct at issue” or by


10
  The Supreme Court recently granted certiorari to consider
whether the two-step approach required under Saucier v. Katz,

, 201 (2001), should be overruled. Pearson v. Callahan,

, 1702-03 (2008) (directing the parties to “brief
and argue the following question: ‘Whether the Court’s decision
in Saucier v. Katz, 

(2001) should be overruled?’ ”).
22                                                  No. 07-1791

showing that “the conduct [at issue] is so egregious that no
reasonable person could have believed that it would not
violate clearly established rights.” Smith v. City of Chicago,

, 742 (7th Cir. 2001). Because we have deter-
mined that Detective Lawson arrested Ms. Wheeler
without probable cause, thus violating her Fourth Amend-
ment right to be free from unlawful arrest, we shall
focus on the second prong of the Saucier test.
  Ms. Wheeler contends that Detective Lawson is not
entitled to qualified immunity, but she does not point to
case law that would have given fair warning to a reason-
able officer in the Detective’s position that his “conduct
was unlawful in the situation he confronted.” 

; see also Hope v. Pelzer, 

, 740-41 (2002)
(noting that “officials can still be on notice that their
conduct violates established law even in novel factual
circumstances,” but explaining that “the state of the law”
nevertheless must provide “fair warning” that their
conduct was unconstitutional). Instead, Ms. Wheeler
contends that no police officer would have believed,
reasonably although mistakenly, that there was probable
cause to arrest her for maintaining a common nuisance.
  We believe that the probable cause determination here
was sufficiently close that an officer reasonably could
have believed that probable cause existed, even if that
belief ultimately was mistaken. See Anderson v. Creighton,

, 638-39 (1987) (“[I]t is inevitable that law
enforcement officials will in some cases reasonably but
mistakenly conclude that probable cause is present.”);
Sorenberger v. City of Knoxville, Ill., 

, 1014 (7th
No. 07-1791                                              23

Cir. 2006) (“[W]e recognize that, even if probable cause is
lacking with respect to an arrest, the arresting officer is
entitled to immunity so long as his belief that he had
probable cause was objectively reasonable.”); Kijonka v.
Seitzinger, 

, 648 (7th Cir. 2004) (noting that,
after determining that probable cause does not exist, “the
question for us is whether there was any reasonable
basis to suppose there was probable cause, as that is the
test for qualified immunity”).
  Detective Lawson found a significant number of items
used to produce methamphetamine in Ms. Wheeler’s
garage. After the fire, Ms. Wheeler’s cousin, Rusty Dillard,
was discovered inside the garage along with a bag contain-
ing methamphetamine, and the Detective learned that
Ms. Wheeler’s husband and her other cousin, Mark Dillard,
had spent the entire day at the garage. Detective Lawson
and other officers at the scene, furthermore, attached
great—albeit undue—significance to the fact that the
area surrounding the garage was outfitted with a sur-
veillance system. These circumstances provided a reason-
able, although ultimately mistaken, basis for Officer
Lawson to believe that Ms. Wheeler was aware of the
activities taking place in the garage. Although Detective
Lawson could have conducted a more thorough investiga-
tion under the circumstances, given the information that
he knew and given that the burden is on Ms. Wheeler
to defeat his qualified immunity defense, we cannot
conclude that a reasonable officer could not have believed
that there was probable cause to arrest Ms. Wheeler for
maintaining a common nuisance.
24                                           No. 07-1791

                      Conclusion
  For the foregoing reasons, the judgment of the district
court is affirmed.
                                               A FFIRMED




                         8-21-08