In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2172

M AIRA G UZMAN,
                                                  Plaintiff-Appellant,
                                  v.

C ITY OF C HICAGO, a municipal corporation,
M ARVIN B ONNSTETTER, Chicago Police Officers,
Star 1645 and D ANILO R OJAS,
                                     Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 05 C 6617—Blanche M. Manning, Judge.



     A RGUED F EBRUARY 13, 2009—D ECIDED M AY 13, 2009




 Before K ANNE, R OVNER, and E VANS, Circuit Judges.
  E VANS, Circuit Judge. In this case brought under
42 U.S.C. § 1983, Maira Guzman alleges that her con-
stitutional rights were violated when Chicago police
officers performed an unreasonable search of her home,
placed her under arrest, and used excessive force against
her. She also sets out various state law violations. The
district court granted summary judgment dismissing her
2                                               No. 08-2172

claims; Guzman appeals only the dismissal of those
relating to the alleged unlawful search and her claim
of false arrest.
  In 2005, Sergeant Marvin Bonnstetter of the Chicago
Police Department was investigating gang activity. In
the course of the investigation he went to the Cook
County jail where he met with an inmate. Another
inmate, referred to as John Doe, approached Bonnstetter
and said he had information about gang activity that
he wished to share with the police. Bonnstetter did not
know the aspiring informant but told him to call after he
was released from jail. And call he did, six months later.
Then the two met at a police station, along with a
special agent from the Federal Bureau of Investigation,
James McDonald. Doe, who himself was a gang member
and a convicted felon, discussed his knowledge of gangs.
It was information which coincided with other knowl-
edge and convinced Bonnstetter and McDonald that Doe
was reliable. In addition, Doe positively identified pictures
of 10 to 20 gang members from photos he was shown.
  One of the specific bits of information Doe provided
was that he saw a gang member and convicted felon
named Ruben Estrada, whom he had known for years, at
a single-family residence at 1536 West Walton in Chi-
cago. Doe said Estrada lived in the house with his family.
Doe also said that he saw Estrada enter the two-story
dwelling through one door on the first floor and
exit with a handgun from another door on the first
floor. Doe said Estrada had a handgun for protection
because his gang was at war.
No. 08-2172                                            3

  Agent McDonald and Doe drove by the house on West
Walton and Doe confirmed that it was where he saw
Estrada. As they were driving by the house, McDonald
saw “a small real estate sign” in the front window. To
him, the building looked like a single-family residence
and he assumed that someone was running a real estate
business out of the home. McDonald conveyed this in-
formation to Bonnstetter, who then searched a police
database which showed that Estrada gave 1536 West
Walton as his address to the police five times from 1997
to 2001. The database also showed that after 2001 he
used as his address 1538 and 1636 West Walton, 1515
West Cortez, and 2943 North Ridgeway. Apparently
having regular run-ins with the police, Estrada used the
latter address eight times from 2002 to 2005. In other
words, it had been almost four years since Estrada used
the 1536 West Walton address in his many contacts
with the police.
  Nevertheless, armed with the information that Estrada
was connected with 1536 West Walton, Bonnstetter
signed an affidavit requesting a warrant to search
Estrada—a felon who was then on bond for unauthorized
use of a weapon—and to search 1536 West Walton,
which was described as a single-family residence. A Cook
County circuit court judge found that the affidavit pro-
vided probable cause and issued a warrant authorizing
the search of Estrada’s person and of 1536 West Walton, a
“single family residence,” and the seizure of any handgun
as well as proof that Estrada lived in the house.
  Armed with the warrant, Bonnstetter, McDonald, and
some seven other Chicago police officers as well as seven
4                                               No. 08-2172

FBI agents descended on 1536 West Walton. When he
arrived, Bonnstetter saw the real estate sign; like McDon-
ald, he thought it looked like a home business. What he
also saw, though, was that the front of the building had
two doors, one leading to the business and the other to a
stairway up to the second floor. The back of the building
also had two doors.
   What became clear at some point is that the building
was not a single-family residence, but rather it housed a
real estate office, an apartment (though unoccupied as
it turned out) on the first floor, and a separate apartment
on the second floor. It is unclear whether there were
real estate flyers in the front window of the office and
whether a mailbox on the door to the upstairs was
labeled Guzman family.
  On that morning, Guzman, who lived in the second-
floor apartment with her husband, was at home, un-
dressed, lying on her bed talking on her phone, when she
heard knocking at her door. She put on a long, loose-fitting
T-shirt and walked toward the door. Suddenly, the door
was forced open with a crowbar and officers entered the
apartment with guns drawn. Guzman did not speak
English but she understood a gesture made by one of the
officers to mean that she should lie down on the floor.
Realizing that Guzman did not speak English, Officer
Danilo Rojas began to serve as an interpreter. Guzman,
who was seven months pregnant at the time, remained
on the floor, in what she said was an uncomfortable
position, for about 10 minutes. After the officers completed
a security check of the apartment, she was permitted to
No. 08-2172                                                5

get up, put on pants, and sit on a chair. The officers
proceeded to search her apartment. Guzman told the
officers that she did not know Estrada, that he did not
live in her apartment, and that there was no handgun.
After 30 minutes of searching, finding nothing of interest
in the apartment, the officers left. As a result of the
entire episode, all that was found was an inoperable, rusty
handgun in the search of the backyard. The officers
also admitted observing that the first-floor apartment
was under renovation and unoccupied.
  As the officers were leaving, Guzman’s husband arrived
home. Guzman, who was by then feeling pain in her
abdomen, wanted to see her doctor. Because her doctor
was unavailable, Guzman went to a nearby hospital
where she was kept overnight for observation.
   As a result of the incorrect information in the warrant
application, Bonnstetter decided not to execute a
second search warrant he had obtained, also based on
information provided by Doe. Bonnstetter testified in his
deposition that about a week after the search he had a
conversation with Doe in which he told him “the informa-
tion he gave me wasn’t right and I was upset.” He also
said he “was upset to the point that if he told me that it
was a residence on the first floor and I go in there and
it’s an office building, I was upset about that.”
  Guzman brought this lawsuit, seeking damages for the
alleged illegal search as well as other claims. The district
court granted summary judgment to the defendants. Our
review is de novo. Bell v. Duperrault, 

(7th Cir.
2004).
6                                                 No. 08-2172

  In evaluating an alleged violation of the Warrant Clause
of the Fourth Amendment, we look at two distinct aspects
of the warrant—its issuance and its execution. Maryland v.
Garrison, 

(1987). We will turn first to the
issuance of the warrant.
  The Fourth Amendment requires that a warrant be
supported by probable cause and that it describe, with
particularity, the place to be searched and the items or
persons to be seized. Absent exigent circumstances, a
neutral magistrate must make the probable-cause deter-
mination and issue the warrant. Chambers v. Maroney, 

(1970); Jones v. Wilhelm, 

(7th Cir. 2005).
  Obviously, in this case the information provided to the
judge—i.e., that 1536 West Walton was a single-family
house and that Estrada lived there—was not accurate.
However, we do not view probable cause determinations
with hindsight. Rather, the validity of the warrant is
assessed on the basis of the “information that the officers
disclosed, or had a duty to discover and to disclose, to
the issuing Magistrate.” 

. Infor-
mation that emerges after the warrant is issued has
no bearing on this analysis.
  In this case, Bonnstetter and McDonald talked with Doe
to assess his reliability. The information about gang
activity coincided with their own. They also showed him
pictures of gang members and he was able to identify
them. McDonald took Doe to West Walton to look at the
house. McDonald observed what he thought was a single-
family house with a home business. Despite these precau-
tions, Guzman argues that they should have done
No. 08-2172                                               7

more—that they should have told the judge that this
was the first time Doe had provided information so they
were limited in their assessment of his reliability. We
doubt that would have made a difference. At the be-
ginning of his work with the police, every informant
necessarily provides information for the first time. We
are convinced that the steps taken to verify the informa-
tion Doe provided were sufficient. There was probable
cause to issue the warrant.
  Our conclusion is in line with prior cases. In Jones we
found a warrant to be valid when it was issued despite
a finding that the police were not diligent in ensuring
that the name of the tenant and the apartment number
were on the warrant. Also, in a situation similar to the
one before us now, we upheld a search warrant on the
basis that the police investigation did not suggest that the
house involved was not a single-family residence but
rather a multiunit, multipurpose building, which also
housed a barber shop. United States v. White, 

(7th Cir. 2005).
  That the warrant be properly issued, however, is only
half of what the Fourth Amendment requires. The warrant
must also be properly executed. A warrant cannot be
executed by persons who know it to be ambiguous.
Garrison; Jones; and Jacobs v. City of Chicago, 

(7th Cir. 2000). It is not uncommon for problems to
arise—as in this case—because of the existence of
multiple living units in what is thought to be a single-
family residence, or when it is clear that multiple units
exist but the warrant fails to identify with precision
which unit is to be searched.
8                                               No. 08-2172

  In Garrison, officers had a warrant to search the third-
floor apartment of someone named Lawrence McWebb.
On their way to perform the search they encountered
McWebb in front of the apartment building. He let them
in and they proceeded to a vestibule on the third floor
with two doors opening off it. Garrison was standing in
the hallway. The Court found that only after they
searched Garrison’s apartment did the officers realize
that it was not McWebb’s and that in fact there were two
apartments, not one, on the third floor. As soon as they
discovered their mistake, they were required to discon-
tinue the search of Garrison’s apartment. Unfortunately
for Mr. Garrison, that happened after heroin, cash, and
drug paraphernalia were found.
   In Jacobs, police obtained a warrant for a “single
family residence” and for a person named Troy. The
information on which the warrant was based was ob-
tained by an informant who said a large amount of
cocaine was being sold out of the building. In fact there
were three apartments in the building, as the police were
informed by the building owner immediately upon
their arrival. The owner, who lived on the first floor, also
told the officers there was no one named Troy in the
building. She said that someone named Jacobs, who was
ill, lived in an upstairs apartment. Undeterred, officers
went to the side entrance to apartment # 2 and broke
down the door without knocking or announcing that they
were police officers. Officers approached Jacobs, a 60-year-
old sickly man, and pointed a gun at his head. While the
officer kept a gun to Jacobs’ head for 10 minutes, they
performed a preliminary search of his apartment. The
No. 08-2172                                                 9

entire search continued for three hours, during which
time the officers called in a drug-sniffing dog. Still no
drugs were found. We determined that reasonable
officers should have known before entering Jacobs’ apart-
ment that the building was not a single-family residence
and thus the warrant was overly broad. Once they dis-
covered the mistake, the officers should have discon-
tinued the search.
  Jones presents an interesting, but not difficult, problem of
interpretation. The warrant allowed a search of “the
upstairs apartment on the right” at a certain address. An
officer conducting the search knew from earlier surveil-
lance that the building contained two staircases. He
knew that if he took the back staircase the “upstairs
apartment on the right” would lead him to the Joneses’
apartment, and if he took the front staircase the apart-
ment on the right would be a different unit. In response
to this sleight of hand, we said that “[w]here a warrant is
open to more than one interpretation, the warrant is
ambiguous and invalid on its face and, therefore, cannot
be legally executed by a person who knows the warrant
to be 

.
  Our case today is relatively straightforward. Although
the officers thought the building looked like a single-
family house, they should have known pretty quickly
that their belief was mistaken. They learned that the front
of the building housed a real estate office. That the office
was small does not distract from the fact that it was an
office. Officers also learned that they could not get to the
rest of the house from that office. That they had to go
10                                              No. 08-2172

outside to access the second-floor apartment should
have informed them that this was not a single-family
residence. They also knew there was a separate door for
the first-floor apartment. So informed, they should have
called off the search. As we said in Jacobs, “searching two
or more apartments in the same building is no different
than searching two or more completely separate 

. Furthermore, Sergeant Bonnstetter ac-
knowledged that the officers were not under time pres-
sure to execute the warrant, as no easily disposed of drugs
were involved. Rather, they were looking for a handgun.
  Admittedly, the facts before us are not so egregious as
in Jacobs or Jones. But as was true in those cases,
Bonnstetter should have known early on that the war-
rant did not accurately describe the premises to be
searched. Once he knew that the house was not a single-
family dwelling, he should have called off the search.
Not doing so violated Guzman’s constitutional rights.
   Interestingly, as this is a case for damages under § 1983,
it may illustrate our recent observation that in some ways
it is easier to protect Fourth Amendment rights though
civil actions, rather than through the suppression of
evidence in criminal cases. In United States v. Sims, 

(7th Cir. 2009), we wondered whether at some
point the Supreme Court will approach civil cases differ-
ently from criminal cases because to find a violation in
a civil case raises “no concern that the sanction for vio-
lating the Fourth Amendment would be disproportionate
to the harm caused by the violation.” 

Just a few
months ago in Herring v. United States, 

, 700
No. 08-2172                                                      11

(2009), the Court reiterated the distinction between the
existence of a Fourth Amendment violation and a subse-
quent invocation of the exclusionary rule, noting that
exclusion “has always been our last resort, not our first
impulse . . . .” (quoting Hudson v. Michigan, 

,
591 (2006)). Exclusion is not a necessary consequence of
a Fourth Amendment violation, and the benefits of exclu-
sion must outweigh the costs.1 

.



1
  Those “costs” are often on the minds of some judges evaluat-
ing suppression motions. They account for the myriad of
doctrines employed to avoid the suppression of evidence. These
include the standing-related doctrine which limits the persons
who have a reasonable expectation of privacy in the area
searched. Rakas v. Illinois, 

(1978). Then there is the
inevitable discovery doctrine, Nix v. Williams, 

(1984), as well as good-faith exceptions. United States v. Leon, 

(1984). And of course many others—the exigent
circumstances exception to the warrant requirement, Brigham
City v. Stuart, 

(2006), and such things like finding
a “consent” to search based on “apparent authority,” United
States v. Matlock, 

(1974). Furthermore, of course,
there is the deference given to the probable-cause findings of
the magistrate issuing the warrant, Illinois v. Gates, 

(1983), and, in the case of warrantless searches, the “due
weight” given to the inferences drawn by law enforcement
officers. Ornelas v. United States, 

(1996). Addition-
ally, there is the holding in Herring that the exclusionary rule
should not apply in a situation involving a search incident to
an arrest made on the mistaken belief that there was an out-
standing arrest warrant for the person searched.
                                                     (continued...)
12                                                   No. 08-2172

  These “costs” to law enforcement are not a concern in
civil cases. For that reason, civil cases are far less trouble-
some. As we said in Sims, civil cases—like our case
today—do not raise concerns that
     illegally seized evidence essential to convicting the
     defendant of a grave crime might have to be sup-
     pressed, and the criminal let go to continue his
     career of criminality, even if the harm inflicted by the
     illegal search to the interests intended to be pro-
     tected by the Fourth Amendment was slight in com-
     parison to the harm to society of letting the defendant
     off scot 

. This is not to say that the exclusionary rule
is necessarily on life support. Just a few days ago, the
Court overruled prior precedent regarding warrantless
searches of automobiles incident to an arrest. The Court
held that once an arrestee is safely in custody (he was
under arrest, handcuffed, and in a squad car) and unable
to gain access to his vehicle, the search of the vehicle
“incident to arrest” doctrine is no longer available.
Arizona v. Gant, 

, ___ S. Ct. ___ (2009).
  Civil suits under § 1983 may not always be adequate
to remedy a Fourth Amendment violation, which is of


1
  (...continued)
  It is also interesting to note that the vast majority of suppres-
sion motions based on alleged Fourth Amendment violations
are heard by state court judges, and their decisions not to grant
the motions are immune from review by lower federal courts
in habeas cases. See Stone v. Powell, 

(1976).
No. 08-2172                                               13

concern to many, including the dissenters in Herring.
Officers, they say, will often be “sheltered by qualified
immunity.” That is true in some cases just as it is true
that the many exceptions to the exclusionary rule
often prevent vindication of Fourth Amendment rights.
  In the present case, we think there is no question that the
search was illegal and there is no issue of qualified immu-
nity—that is, no issue that somehow the fact that the
officers did not have a right to enter Guzman’s apartment
was not clearly established. So a civil case vindicates
Guzman’s Fourth Amendment rights. There was no
contraband found and therefore no criminal case. But
one might wonder whether Ms. Guzman’s Fourth Amend-
ment rights would have been vindicated if the officers
had found the dead body of a child in the apartment
and the case was referred to Cook County circuit court for
prosecution. Would the exclusionary rule have been
invoked? Or would the officers have been found to be
acting in good-faith reliance on the warrant? Or would
the temptation be great to find that some other excep-
tions to suppression should be invoked?
  Finding that the execution of the search of the apart-
ment was illegal, we will also reinstate Ms. Guzman’s
false arrest claim.
  Accordingly, the judgment of the district court is
A FFIRMED IN P ART and R EVERSED IN P ART and R EMANDED
for proceedings consistent with this opinion.
14                                              No. 08-2172

   R OVNER, Circuit Judge, concurring. I concur in the
holding and the reasoning of the majority’s thorough
opinion, but I cannot concur in the substantial dicta de-
voted to attacking the exclusionary rule. This is a civil
case; nothing incriminating was discovered during this
illegal search, and no criminal charges ensued. There
is thus nothing to exclude. The continued vitality of the
exclusionary rule is a matter solely for the Supreme
Court to consider. It is a far-reaching issue that would
benefit from full argument, and should not be blithely
dismissed absent that full presentation. Because it is not
our province to comment on issues not before the court,
I do not join that part of the majority’s opinion. See Idris
v. City of Chicago, Ill., 

, 567 (7th Cir. 2009).
(“federal courts do not issue advisory opinions on situ-
ations that do not affect the litigants”).




                           5-13-09