In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2544

B ARBARA J. S UAREZ and W ILLIAM G. S UAREZ,

                                           Plaintiffs-Appellants,
                               v.


T OWN OF O GDEN D UNES, INDIANA;
O FFICERS R OBERT T ROWBRIDGE,
H AROLD M C C ORKEL, K EVIN H UGHES,
K EN T OMASKO, W ILLIAM S MITH, and
JOSEPH R ADIC,
                                          Defendants-Appellees.


             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
    No. 2:05-cv-225-APR—Andrew P. Rodovich, Magistrate Judge.



  A RGUED F EBRUARY 25, 2009—D ECIDED S EPTEMBER 11, 2009




 Before F LAUM, W ILLIAMS, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. A nasty confrontation between
various law enforcement officials and Barbara Suarez
and her son William resulted in the Suarezes’ arrest. The
officers entered the Suarez home late at night with a
2                                              No. 08-2544

search warrant they had obtained based on evidence
that an underage drinking party was taking place at the
house. Barbara was charged with contributing to the
delinquency of a juvenile and William was charged with
consumption by a minor, resisting arrest, and battery of
a law enforcement officer. William pleaded guilty to the
consumption and battery charges; the charges against
Barbara were dropped.
  After the termination of their criminal proceedings, the
Suarezes filed a § 1983 action against a multitude of
defendants. See 42 U.S.C. § 1983. The Suarezes’ claims
fell into two basic types. First, they alleged that the
search of their house and their arrests violated the
Fourth Amendment. Second, William alleged that the
police used unnecessary force when they arrested him.
All of the defendants were awarded summary judgment
on the Fourth Amendment claims. Most defendants were
similarly granted summary judgment on the excessive
force claim, except for officers Tomasko, Smith, and Radic,
who prevailed at a jury trial. The Suarezes appeal the
denial of summary judgment on the illegal search and
arrest claims and raise an evidentiary issue arising
from the excessive force trial. They limit their appeal to
their claims against the town of Ogden Dunes and six
individual officers from the variety of law enforcement
entities responsible for the Indiana Dunes environs.


                     I. Background
 On the night of his high school graduation in June 2003,
William Suarez had a party at his parents’ house in Ogden
No. 08-2544                                             3

Dunes, Indiana. The party was apparently typical for the
area: a group of teenagers gathered around a bonfire,
drinking beer on the beach behind the Suarez home. At
11:00 p.m. Robert Trowbridge of the Ogden Dunes Police
Department pulled up in front of the Suarez home to
ticket one of the kids, Gerald Bardeson, for parking on
the road with an invalid permit. After speaking with
Bardeson, Trowbridge let him off without a ticket (despite
noticing alcohol on Bardeson’s breath) and noted that
there appeared to be underage drinking taking place at
the home. While he talked with Bardeson, he was
verbally abused by the partygoers.
  Trowbridge pulled to the end of the road and as he
stopped there, several youths jumped on the trunk of his
car. He believed that these youths were from the
Suarez party, but there was at least one other party in-
volving teenagers taking place on the beach that night.
He drove by the house once more and was subjected to
more verbal abuse. After leaving the house, Trowbridge
believed he needed assistance dealing with the party
and went to round up police reinforcements.
  Bardeson, meanwhile, left for home after he spoke with
Trowbridge. He felt the party was getting out of control
and that everyone was going to end up in jail. Bardeson
wasn’t able to avoid the long arm of the Ogden Dunes
law, however; Officer Trowbridge and his reinforce-
ments descended on him after he parked at a tennis court
across the street from his house. There, after Bardeson
allegedly resisted arrest, he was pepper-sprayed,
handcuffed, and possibly set upon by a K-9. Bardeson
4                                               No. 08-2544

was trundled off to jail but his part in our story ends
there. He pleaded guilty to a charge of being a minor
consuming alcohol in order to put the whole incident
behind him.
  As Trowbridge and his reinforcements were rounding
up Bardeson, William Suarez was wrapping up the
party. He went outside, told everyone who was leaving
to take off, put out the bonfire, and invited nine of his
friends to stay the night. The town had a beach curfew of
midnight, so this was when parties usually ended. But,
Barbara Suarez also had a bad feeling that Trowbridge
would be back to cause trouble, so she had the kids
come upstairs to sleep in her room (she was also con-
cerned about their continued access to alcohol, which she
alleges she discovered they were drinking after the
party broke up).
   After arresting Bardeson, Trowbridge returned to the
Suarez house with at least eight to ten squad cars. (It must
have been a slow night for law enforcement in the
Ogden Dunes area.) When the police arrived at 11:53 p.m.,
there were no kids in the street or the yard but there
were still multiple cars parked around the residence.
Some of these cars were in the driveway, which held up
to six cars. Others had valid temporary parking passes
and were parked on the road in front of the house. Be-
lieving that the party was continuing in the house,
Trowbridge called a local judge for a search warrant.
  The judge heard the following facts in Trowbridge’s
application for the warrant: Trowbridge reported that he
“came across a whole bunch of kids” standing in the
No. 08-2544                                                      5

driveway of the Suarez home when he was issuing a
ticket for an illegally parked car. After deciding not to
issue the ticket, he was turning around to leave when
“a few of the kids approached the squad car and jumped
on the roof and got up on the trunk of the car.” The
kids “come [sic] back three more times and jumped on
the car and the hood again.” He testified that when he
went to chastise the kids, there was a group “screaming
and yelling and laughing in the driveway” and he
decided to go get backup. After backup arrived, “we
found three bottles, containers of (unintelligible) 1 around
the house. All the kids retreated into the home.” Respond-
ing to the judge’s question, Trowbridge testified that the
bottles “were laying in the backyard,” that the children
“looked anywhere from sixteen to twenty,” and he be-
lieved they had been consuming alcohol. He finally
testified that he sought a warrant to go into the home
and “determine the facts” and that “we shown [sic] the
light through the window and could see kids hiding
behind the couches.” The judge issued a warrant authoriz-
ing entry into the Suarez home to search the premises.
  At approximately 12:30 a.m., after the police knocked
on the door (and possibly called the house) a disputed
number of times, they broke down the door with a
ramrod and arrested Barbara and William (after wrestling
him out of the attic and pepper-spraying him). They



1
  It’s unfortunate that this word is unintelligible, but it’s clear
from the context and the parties’ deposition testimony that
the word is “beer.” The Suarezes do not dispute this.
6                                                   No. 08-2544

breathalyzed the other boys at the house, arresting
those who tested positive for alcohol.
  After the disposition of their criminal cases, the
Suarezes sued pursuant to 42 U.S.C. § 1983, alleging that
their Fourth Amendment rights were violated by the
search and subsequent arrests, because neither was
supported by probable cause. William Suarez also
alleged that the police had used excessive force in his
arrest. The case was assigned by the parties’ consent to
a magistrate judge, who granted summary judgment for
the defendants on the issue of probable cause and sum-
mary judgment to certain other officers on the excessive
force claim. William Suarez’s case against three officers
proceeded to trial on the issue of police brutality, where
the defendants prevailed. We now take up the Suarezes’
appeal.


                         II. Analysis
    A. Was there probable cause for the search of the
       Suarez home? 2
  We review a grant of summary judgment de novo,
drawing all inferences in favor of the non-moving party.



2
  Defendants argue that the plaintiffs are estopped from
relitigating the probable cause issue because the matter was
decided in a state suppression proceeding. Whitley v. Seibel, 

, 248 (7th Cir. 1982). We are not so sure. See Best v.
City of Portland, 

, 699 (7th Cir. 2009). In any event,
we need not decide the viability of this defense because the
plaintiffs’ argument fails on the merits.
No. 08-2544                                                  7

Steen v. Myers, 

, 1021 (7th Cir. 2007). Summary
judgment is only appropriate when “the evidence in the
record shows no genuine issue of material fact and the
moving party is entitled to judgment as a matter of
law.” 

R. Civ. P. 56(c)).
   The Suarezes’ illegal search claim depends on whether
the police had probable cause to support a search of the
Suarez home. Probable cause exists when “the known
facts and circumstances are sufficient to warrant a man
of reasonable prudence in the belief that . . . evidence of
a crime will be found.” Ornelas v. United States, 

, 696 (1996); United States v. Lowe, 

, 585
(7th Cir. 2008). Probable cause deals with beliefs, not
certainties. United States v. Sokolow, 

, 8 (1989). It
is a “fluid concept” that depends on the context in
which it is being assessed. 

.
Probable cause is a matter of common sense, based on
the “factual and practical considerations of everyday
life.” 

“In making probable-cause determinations,
law enforcement agents are entitled to draw reasonable
inferences from the facts before them, based on their
training and experience.” United States v. Funches,

, 586 (7th Cir. 2003); see also Groh v. Ramirez,

, 575 (2004) (Thomas, J., dissenting) (“The
point of the Fourth Amendment . . . is not that it denies
law enforcement the support of the usual inferences
which reasonable men draw from evidence. Its pro-
tection consists in requiring that those inferences be
drawn by a neutral and detached magistrate instead
of being judged by the officer engaged in the often com-
petitive enterprise of ferreting out crime.” (alteration in
8                                                No. 08-2544

the original) (quoting Johnson v. United States, 

,
13-14 (1948))). “Probable cause is only a probability or
substantial chance of criminal activity, not a certainty
that a crime was committed.” Beauchamp v. City of
Noblesville, Ind., 

, 743 (7th Cir. 2003).
  The Suarezes do not contend that the judge Officer
Trowbridge spoke to should not have issued a search
warrant for their home. Instead, they challenge the
veracity of the statements Trowbridge made in sup-
porting his request for the warrant. This is tough sled-
ding. The affidavit (in this case, the sw orn
telephonic testimony) supporting a search warrant
carries with it a presumption of validity. Franks v.
Delaware, 

, 165, 171 (1978); Molina ex rel. Molina
v. Cooper, 

, 968 (7th Cir. 2003). To survive
summary judgment the plaintiffs must “provide
evidence that the officers knowingly or intentionally or
with a reckless disregard for the truth made false state-
ments to the judicial officer” and show that “the false
statements were necessary to the judicial officer[’s] deter-
mination[] that probable cause existed.” 

(quotation omitted). The same standard applies
to any alleged omissions in the warrant. 

misstatements or omissions do not invalidate the
warrant. 

theory of the case rests in large part on
the personal animus that they allege existed between
Trowbridge and themselves—an animus that, they
argue, had resulted in a feud that culminated in their
arrest. They argue that Trowbridge lied when he told
No. 08-2544                                               9

the judge that kids could be seen hiding behind furni-
ture. He also misled the judge, they claim, by implying that
he had seen kids retreat into the house, when in reality he
had returned to find all the kids gone. They say that
Trowbridge specifically skipped over the timing issues that
made the probable cause determination in this case diffi-
cult; his statement to the magistrate implies that he had
essentially seen the kids go into the house while waiting
for his backup.
  The question is whether any statement or omission
that the Suarezes challenge was intentionally or recklessly
false, and whether it was material to the issuance of the
warrant. Their allegations can be grouped into two
basic categories. The first group concerns the timing of
the warrant. The second concerns misrepresentations
regarding the physical evidence at the scene. Neither
category of evidence the Suarezes offer is sufficient to
overturn the affidavit’s presumption of validity.
  The first category of disputed evidence includes the
Suarezes’ allegations that Officer Trowbridge omitted the
timing between the events with the kids in the Suarez
driveway and the time the officers returned to find the
house dark. They further argue that his formulation
that “[a]ll the kids retreated into the home” misleadingly
implied that Officer Trowbridge saw the kids go into
the home. They also argue that Offcer Trowbridge ne-
glected to mention that Gerry Bardeson, to whom
Trowbridge had referred to specifically throughout
his application for the warrant, had already been
arrested by the time the police sought the warrant, and
10                                             No. 08-2544

that he was the only known minor drinking at the house.
The Suarezes argue that Trowbridge’s combination of
omissions and misrepresentations elided the gap in time
that made it impossible to connect anything taking
place outside the Suarez home at 11:00 p.m. with what
was taking place in the home at 11:53 p.m.
  However, the undisputed facts indicate that none of
Trowbridge’s statements or omissions was materially
false. First, it is undisputed that there were several cars
still parked around the Suarez home, both in the street
and in the driveway; the presence of these cars and the
fact that no one was in the street, outside the house
or behind the house on the beach, provided ample basis
for Trowbridge’s claims that the teenagers “retreated
into the house.” This was therefore not a misrepresenta-
tion. Second, a gap of fifty-three minutes between ob-
serving the rowdy behavior of the youths and a decision
to enter into the home does not sever the connection
between the illegal behavior that Trowbridge witnessed
and a belief that illegal activity was occurring in the
home, or that evidence of the illegal activity would be
found there, particularly since the parked cars gave rise
to an inference that a gathering was still taking place.
The omission of the timing therefore was not material to
the determination of probable cause. Finally, had
Trowbridge specifically mentioned Bardeson’s arrest, it
would only have bolstered his claim that there was under-
age drinking taking place at the Suarez residence, since
Bardeson was arrested for consuming alcohol and he
had just left the residence. Failure to mention this fact
was, again, not material to the probable cause determina-
tion.
No. 08-2544                                            11

  The second class of the Suarezes’ claims attack the
specific evidence that Trowbridge referred to in the
warrant application. The Suarezes argue that only one
officer—not Trowbridge—actually claimed to have
seen someone hiding in the house. Trowbridge, they
also note, testified during a deposition in the civil case
that he did not personally see bottles around the
house. They complain that the kids who jumped on
Trowbridge’s car could not be positively traced to the
gathering at the Suarez home. And they argue no plastic
cups, beer bottles, or other alcoholic beverages were
photographed outside the residence.
  But the Suarezes are nit-picking. It is true that
according to some of their witnesses, there was at least
one other party taking place on the beach that night, but
Trowbridge’s car was leapt on shortly after he had been
hassled specifically by kids at the Suarez home. This
allowed him to draw an extremely reasonable inference
that unruly kids were present at the home he wished
to search. Similarly, while it is true that Trowbridge
personally did not find beer bottles, he swore in his
application for the warrant that other officers found
the bottles and reported it to him. He made the same
statement regarding the teenagers hiding in the house,
a statement that is backed up by another officer on the
scene, Park Ranger Chorba. Officer Trowbridge was
entitled to rely on the collective knowledge of all the
investigating officers in making out his warrant request.
United States v. Parra, 

, 764 (7th Cir. 2005).
  The Suarezes say that Chorba was lying, and that all
the kids were upstairs in the house. Given that William
12                                              No. 08-2544

admitted in his deposition to looking out of the house
and seeing the cops assembling, both sides’ versions of
the facts are easy to reconcile and we think that this was
probably not a misrepresentation. The Suarezes had been
tipped off by a neighbor that a phalanx of squad cars
was lining up down the street, which explains William’s
furtive glances at the action taking place outside his
house. Furthermore, even if Chorba’s statement was
incorrect, the plaintiffs must show that Trowbridge’s
reliance on it was a reckless misrepresentation; they
cannot. Finally, even if there were a genuine dispute
over what Chorba actually saw, we do not think it a
material one; the validity of the warrant did not hinge
on the officers’ ability to spot kids in the house. Given the
presence of the cars outside the home, the teenagers’
presence within, as noted, was a reasonable inference
for the officers to make.
   Regarding whether or not cups or bottles were tagged
into evidence, the Suarezes cannot seriously argue that
the officers’ reference to any of the aforementioned evi-
dence was a misrepresentation. Given that other officers
supported the assertion that bottles were outside the
home and that both parties’ witnesses testified at deposi-
tion that there were coolers of beer at the party, the
Suarezes fall far short of establishing that Trowbridge
lied when he testified that the bottles were seen in the
backyard. More broadly, despite the quibbles that the
Suarezes have with Officer Trowbridge’s warrant
request, they cannot contest that the facts on the ground
were much as he described them to the magistrate. Accord-
ingly, they fall short of establishing the intentional or
No. 08-2544                                             13

reckless misrepresentations or omissions that the Franks
standard requires. The grant of summary judgment in
the defendants’ favor was, therefore, appropriate.


 B. Legality of the Suarezes’ Arrests
   The Suarezes next argue that their arrests were illegal
because the police did not have probable cause to be in
their home. Because we find that probable cause for the
search warrant existed, this argument necessarily fails.
This disposes of William’s claim. Barbara Suarez also
hints that probable cause did not exist to arrest her, even
if it did exist to enter the home, because there was no
evidence that she supplied the alcohol or encouraged
anyone to drink. But, as the Indiana Court of Appeals
has held, a homeowner’s decision to permit minors to
consume alcohol in her home is sufficient to violate Indi-
ana’s contributing to the delinquency of a minor statute.
IND. C ODE 35-46-1-8 (penalizing an adult who “knowingly
or intentionally encourages, aids, induces, or causes a
person less than 18 years of age to commit an act of delin-
quency”); Rush v. Indiana, 

, 54 (Ind. Ct. App.
2008). Given that the police had reason to believe, as
we’ve discussed, that minors were consuming alcohol at
the Suarez home, and that Barbara Suarez was on
the premises, surrounded by teenagers who were
breathalyzed and arrested, and had not responded to
the officers’ request for entry, the undisputed facts
show that there was probable cause for her arrest.
14                                            No. 08-2544

 C. Admissibility of Evidence
  William Suarez also challenges the trial court’s refusal
to admit portions of an audiotape of police activity that
night; he wanted to use the portions of the tape to show
that the officers on trial were insistent on getting and
executing a warrant. These recordings, William argues,
would impeach the officers’ contention at trial that they
did not have an integral role in the decision to search
the Suarez home. We review a judge’s decision to
exclude evidence for an abuse of discretion. United States
v. L.E. Myers Co., 

, 855 (7th Cir. 2009). We
will find error only where “no reasonable person could
take the view adopted by the trial court.” 

  The recording William sought to admit was captured by
a microphone worn by Trowbridge. The microphone
recorded conversations beginning with the decision to
seek a warrant to search the Suarez home. The trial
judge admitted the recording beginning with the entry
into the Suarez home but excluded the earlier portion
that contained the officers’ discussion of whether to
execute the warrant.
   The judge excluded the earlier conversations because
he found that their relevance was outweighed by the
confusion of issues that the evidence’s admission
would engender. See F ED. R. E VID. 403. The sole issue at
trial was whether the police officers used excessive
force after they had entered the house and arrested Wil-
liam Suarez. The issue was not whether the officers
had probable cause to enter the house. We find it reason-
No. 08-2544                                           15

able for the judge to believe that evidence of the steps
taken to secure the warrant would confuse the jury on
the force issue. Thus, there was no abuse of discretion.


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




                         9-11-09