In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-3324

S USAN M. B ENTZ,
                                                Plaintiff-Appellant,
                                 v.

C ITY OF K ENDALLVILLE, M IKE M C C ANN,
L ANCE W ATERS, L. R ICHARDSON, and
D OUGLAS M. D AVIS,
                                      Defendants-Appellees.


             Appeal from the United States District Court
      for the Northern District of Indiana, Fort Wayne Division.
               No. 07 CV 121—William C. Lee, Judge.



      A RGUED M AY 11, 2009—D ECIDED A UGUST 14, 2009




 Before C UDAHY, P OSNER, and K ANNE, Circuit Judges.
  K ANNE, Circuit Judge. On May 3, 2006, officers of the
Kendallville Police Department entered the home of
Dr. Bernard Leonelli without a warrant, arrested him,
and searched his home for potential domestic violence
victims. Leonelli brought suit against the City of
2                                                   No. 08-3324

Kendallville and individual police officers 1 alleging
various Indiana tort claims and violations of the Fourth
and Fourteenth Amendments under 42 U.S.C. § 1983.
The district court granted summary judgment to the
defendants. While this appeal was pending, Leonelli
passed away from causes unrelated to the lawsuit, and
Susan Bentz became his personal representative. The
city moved to dismiss the appeal, claiming that none of
Leonelli’s claims survived his death. Bentz, meanwhile,
moved that we certify the question of survival to the
Indiana Supreme Court. Because we find that Indiana
law establishes that Leonelli’s claims do not survive,
we grant the city’s motion to dismiss the appeal and deny
Bentz’s motion to certify questions of state law.


                       I. B ACKGROUND
  On May 3, 2006, in response to two 911 calls reporting
a domestic dispute, the Kendallville Police Department
dispatched officers to the home of Dr. Bernard
Leonelli.2 Officer Douglas Davis approached the residence
in his patrol car and observed a large fire on the lawn. As


1
  Because all of the defendants’ arguments are identical for
the purposes of this appeal, we refer to them collectively as
“the city.”
2
  We provide only a brief summary of the underlying incident
because these facts are largely irrelevant to the survivability of
Leonelli’s claims. For a complete account of the facts in this
case, see Leonelli v. City of Kendallville, No. 1:07 CV 121, 

, at *2-4 (N.D. Ind. Aug. 15, 2008).
No. 08-3324                                              3

he got out of the patrol car, onlookers informed him
that a fight was occurring in the residence.
  Davis approached the house, where Leonelli was stand-
ing on the front porch. Davis identified himself and
instructed Leonelli to come talk to him. Leonelli shook his
head, turned, and walked into the house. Davis continued
toward the door, but Leonelli kept walking away. Davis
then observed Leonelli reach for something that Davis
could not see, prompting him to enter the house and
arrest Leonelli.
  Other officers arrived at the scene and searched the
residence for victims of domestic violence. Leonelli con-
tended that the officers went through several drawers in
his home and searched his computers, while the officers
claimed that they searched only areas where they
believed they might find a person.
  Leonelli sued the city and the individual officers in-
volved in his arrest and search. His complaint alleged that
the defendants had violated his rights under the Fourth
and Fourteenth Amendments. See 42 U.S.C. § 1983. Specifi-
cally, Leonelli claimed that (1) his arrest was without
probable cause and constituted an unreasonable seizure,
and (2) the officers’ entry and search of his home
without a warrant was an unreasonable search and tres-
pass. Leonelli also raised several state tort claims, in-
cluding false arrest, malicious prosecution, and trespass.
  The district court granted summary judgment to the
defendants, holding that they were immune from liability
under both federal and state law. Leonelli filed a notice
of appeal. He later died on September 28, 2008. Bentz,
4                                               No. 08-3324

Leonelli’s personal representative, continued to prosecute
this appeal on his behalf.


                       II. A NALYSIS
  The city filed a motion to dismiss Bentz’s appeal, arguing
that Leonelli’s claims did not survive his death. After
concessions by the appellant, the only claims before us
are those brought under § 1983. That statute is silent on
the issue of survival, so 42 U.S.C. § 1988 directs us to
“look to the most closely analogous state law to deter-
mine survivability.” Bass ex rel. Lewis v. Wallenstein, 

, 1188 (7th Cir. 1985); see also Robertson v.
Wegmann, 

, 588-91 (1978); Anderson v. Romero,

, 1123 (7th Cir. 1994). When analyzing the
survivability of § 1983 claims, we therefore apply the
state survival statute unless it is inconsistent with
federal policy. 

. Bentz does not
claim that the application of state law in this case is
inhospitable to the purpose of § 1983 actions, so we
apply Indiana law in deciding whether Leonelli’s claims
survived. 

.
  In order to apply Indiana law, we must properly analo-
gize Leonelli’s § 1983 claims to the appropriate Indiana
torts. In doing so, we begin with the federal claim at
issue. 

. We must first characterize
that claim and then decide which Indiana tort is the
most similar, without molding the constitutional claim
to fit within the contours of state law. 

at an appropriate analogy, we turn to the Indiana
No. 08-3324                                                  5

survival statute to determine whether that claim should
survive. See Ind. Code § 34-9-3-1.
  Bentz presents two Fourth Amendment claims on
Leonelli’s behalf. The first is an illegal seizure/false
arrest claim arising from the warrantless arrest. The
second is based on the allegedly unlawful entry and
“trespass” into Leonelli’s home. After considering the
elements required to establish each federal cause of
action, we hold that neither claim survives under
Indiana law.


    A. Illegal Seizure/False Arrest
  In his complaint, Leonelli averred that the police
lacked probable cause and that his arrest was therefore an
unreasonable seizure in violation of the Fourth Amend-
ment. The city argues that this claim is analogous to the
Indiana tort of false imprisonment, which does not
survive death.3 Bentz, meanwhile, contends that Leonelli’s
claim was similar to the distinct tort of unlawful arrest,
or that, in the alternative, Indiana law is unclear and
we should certify the question to the Indiana Supreme
Court. See 7th Cir. R. 52(a); Ind. R. App. P. 64 (providing


3
  The Indiana survival statute provides a comprehensive list
of claims that do not survive death: (1) libel, (2) slander,
(3) malicious prosecution, (4) false imprisonment, (5) invasion
of privacy, and (6) personal injuries to the deceased party.
Ind. Code § 34-9-3-1. All other personal causes of action
survive and may be brought by the decedent’s representative.
See 

08-3324

that federal courts may certify a question of law to the
Indiana Supreme Court when it appears that the case
“presents an issue of state law that is determinative of
the case and on which there is no clear controlling
Indiana precedent”).
  We begin by discussing the requirements for Leonelli’s
federal cause of action. To prevail under § 1983 for this
claim, Bentz must establish that the government’s
conduct constituted a seizure and that the seizure was
unreasonable. Bielanski v. County of Kane, 

,
637 (7th Cir. 2008). Under the Fourth Amendment, a
person has been seized “ ‘only if, in view of all of the
circumstances surrounding the incident, a reasonable
person would have believed that he was not free to
leave.’ ” Tom v. Voida, 

, 956-57 (7th Cir. 1992)
(quoting United States v. Mendenhall, 

, 554
(1980)). We have also referred to a seizure for Fourth
Amendment purposes as “an intentional limitation of a
person’s freedom of movement.” 

. Where an arrest occurs without probable cause,
the plaintiff may bring a claim for unreasonable seizure.
See A.M. v. Butler, 

, 798 (7th Cir. 2004).
  The standards for false imprisonment in Indiana
are remarkably similar. “Under Indiana law, false impris-
onment is defined as the unlawful restraint upon one’s
freedom of movement or the deprivation of one’s liberty
without consent.” Earles v. Perkins, 

, 1265
(Ind. Ct. App. 2003). As with the Fourth Amendment,
where the police arrest a suspect without probable
cause, they can be held liable for false imprisonment.
No. 08-3324                                                   7

Miller v. City of Anderson, 

, 1104 (Ind. Ct.
App. 2002).
  In other words, a plaintiff may establish both a § 1983
claim and an Indiana false imprisonment claim where
his freedom of movement was limited or restrained in
some way without probable cause. See 

; 

(“[B]oth Indiana and
federal law require the court to determine if there was
probable cause for arrest . . . .”); 

.
The elements of the causes of action are nearly
identical, and Leonelli could have framed his claim
in terms of the Indiana tort of false imprisonment,
federal law, or both.
  Bentz relies in part on Row v. Holt, 

(Ind. Ct. App. 2005), vacated, 

(Ind. 2007),
for her argument that false arrest and false imprison-
ment are distinct torts under Indiana law. She is correct
that, as Row observed, distinctions exist between the two
in certain cases. See 

But further examina-
tion of Row reveals compelling support for the city’s
position. Although the court noted that the two torts
are different insofar as an imprisonment can be made
absent an arrest, it went on to emphasize that “[a] false
arrest is one means of committing a false imprisonment,
and every false arrest has, at its core, a false imprisonment.”

(emphasis added) (quotations omitted). The
court therefore determined that because the plaintiff’s
false imprisonment claim involved an alleged false arrest,
8                                                No. 08-3324

it required no separate analysis. Id.4
  Indeed, Indiana courts have used the terms “false
arrest” and “false imprisonment” interchangeably when
a plaintiff’s claim stems from detention by authorities
without probable cause. See, e.g., Johnson v. Blackwell, 

, 30-31 (Ind. Ct. App. 2008) (using the terms
interchangeably when distinguishing both from malicious
prosecution); 

(defining false
imprisonment under Indiana law and holding that “[a]
defendant may be liable for false arrest when he or
she arrests a plaintiff in the absence of probable cause”);

-05 (equating what a “plaintiff
in a false arrest action” must demonstrate with the stan-
dard for “false imprisonment”). Perhaps more tellingly,
Indiana courts often analyze causes of actions involving
unlawful police detentions solely in terms of false impris-
onment. See, e.g., Trobaugh v. Hellman, 

, 286-
87 (Ind. Ct. App. 1990); Delk v. Bd. of Comm’rs of Del.
County, 

, 439 (Ind. Ct. App. 1987); Grooms v.
Fervida, 

, 411-12 (Ind. Ct. App. 1979); Mitchell
v. Drake, 

, 198 (Ind. Ct. App. 1977) (discuss-
ing the standard the Seventh Circuit has applied “in false
imprisonment actions against government agents under
the Fourth Amendment”).




4
  Although this opinion was subsequently vacated, we find
this analysis persuasive because the Indiana Supreme Court
affirmed that no separate analysis was required for false
arrest and false imprisonment. 

n.4.
No. 08-3324                                                 9

  In other words, Indiana courts have analyzed claims
similar to Leonelli’s under the false imprisonment frame-
work. As such, Indiana law establishes that Leonelli’s
§ 1983 claim for unreasonable seizure is analogous to an
Indiana tort claim for false imprisonment, which does not
survive a decedent’s death. See Ind. Code § 34-9-3-1.
  We emphasize that this holding does not rest on the
notion that Leonelli’s factual allegations could satisfy
either legal claim because, as we shall soon discuss,
identical facts can often give rise to multiple torts.5
Instead, we base our decision on the similarities between
the elements of Fourth Amendment unreasonable seizure
and Indiana unlawful imprisonment claims. It is due to
these legal similarities that Leonelli’s appeal of this
claim must be dismissed.


    B. Unlawful Entry into Leonelli’s Home
  Leonelli’s next § 1983 claim challenged the police offi-
cers’ warrantless entry and search of his home. On
appeal, Bentz focuses solely on the allegedly illegal entry
and abandons the challenge to the search.6 She argues that



5
  Throughout this opinion, we assume that the entry into
Leonelli’s home was without probable cause and therefore
would indeed form the basis of a cause of action. Because
we dismiss the appeal, we need not decide whether probable
cause in fact existed.
6
  Counsel made this concession at oral argument. We presume
the remaining claim is found in Paragraph 9 of the second
                                                (continued...)
10                                                  No. 08-3324

because this claim rests on the physical entry into
Leonelli’s home, it is akin to trespass, which survives
under Indiana law. 7 See Ind. Code § 34-9-3-1. The city,
on the other hand, compares Leonelli’s claim to the
Indiana tort of invasion of privacy, which does not sur-
vive. See 

blush, this appears to be a difficult question
because the facts of this case potentially implicate both
torts. To prove trespass under Indiana law, a plaintiff
need only show that he was in possession of the land
and that the defendant entered that land without right.
Garner v. Kovalak, 

, 313 (Ind. Ct. App. 2004).
On the other hand, invasion of privacy can take the form
of “an intrusion upon the plaintiff’s physical solitude
or seclusion as by invading his home or conducting an
illegal search.” Cullison v. Medley, 

, 31 (Ind.
1991).8 Restricting the question to the officers’ illegal


6
  (...continued)
amended complaint, which averred that “[d]efendants . . .
committed trespass . . . in violation of the Plaintiff’s Fourth
Amendment Rights, when they entered into . . . Dr. Leonelli’s
home without warrant or sufficient legal justification, all
in violation of the tort laws and public policies of the State
of Indiana.”
7
  Bentz again requests that we certify this question to the
Indiana Supreme Court, but we do not believe that there is
any uncertainty in applicable Indiana law. See Ind. R. App. P. 64.
8
   Invasion of privacy can take one of four forms: appropria-
tion, intrusion, public disclosure of private facts, and false
                                                 (continued...)
No. 08-3324                                                     11

entry into Leonelli’s home, it seems that the complaint’s
allegations could form a basis for either claim.
  But Indiana tort law and the facts of this individual
case are not at the core of our analysis—we must begin
with the federal claim at issue. See 

.
Only after characterizing the federal claim do we
decide which analogous Indiana tort applies. See 

law makes clear that the crux of a Fourth Amend-
ment claim of this nature, whether framed as an unlawful
search, an unreasonable entry into the home, or any
other similar action, is invasion of privacy. See, e.g., United
States v. Henderson, 

, 786 (7th Cir. 2008).
  The Supreme Court has stated that “a funda-
mental purpose of the Fourth Amendment is to safe-
guard individuals from unreasonable government inva-
sions of legitimate privacy interests.” United States v.
Chadwick, 

, 11 (1977), abrogated on other grounds
by California v. Acevedo, 

(1991). Thus, to bring
a Fourth Amendment action for an unlawful search (or
entry), a plaintiff must have a legitimate expectation of
privacy that society recognizes as reasonable. California v.
Ciraolo, 

, 211 (1986); United States v. Sandoval-
Vasquez, 

, 743 (7th Cir. 2006). As federal
and Indiana courts have repeatedly recognized, this
expectation of privacy is the hallmark of Fourth Amend-
ment analysis. See, e.g., Michael C. v. Gresbach, 

,


8
   (...continued)
light in the public eye. 

. Only intrusion
is applicable here.
12                                               No. 08-3324

1014-15 (7th Cir. 2008); Membres v. State, 

,
269 (Ind. 2008); Trimble v. State, 

, 801 (Ind.
2006); Rook v. State, 

, 999 (Ind. Ct. App. 1997)
(“The basic purpose of [the Fourth Amendment] is to
safeguard the privacy and security of individuals
against arbitrary and unreasonable government intru-
sions.”). It is, therefore, the government’s unlawful
invasion of this privacy that gives rise to a Fourth Amend-
ment violation.
  Bentz draws our attention to Supreme Court precedent
that emphasizes the importance of a man’s home, noting
that “ ‘physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is di-
rected.’ ” New York v. Harris, 

, 18 (1990) (quoting
Payton v. New York, 

, 585 (1980)); see also Kyllo
v. United States, 

, 40 (2001). Because of the
home’s importance, Bentz argues that trespass is the
most closely analogous tort.
  We are mindful that the home occupies a special place
in Fourth Amendment jurisprudence. But the reasoning
behind this principle is straightforward—individuals
have a particularly high expectation of privacy in their
homes. As the Court recognized, in no setting “is the zone
of privacy more clearly defined than when bounded by
the unambiguous physical dimensions of an individual’s
home.” 

. This makes the home
distinct from property in plain view, of which seizures
and searches involve no invasion of privacy. 

  Furthermore, although the Supreme Court has often
expressed concern for protecting “the sanctity of a man’s
No. 08-3324                                             13

home,” 

(quoting Boyd v. United States, 

, 630 (1886)), it has, with equal vigor, emphasized that
“the Fourth Amendment protects people, not places,” Katz
v. United States, 

, 351 (1967). It is for this
reason that “[w]hat a person knowingly exposes to the
public, even in his own home or office, is not a subject of
Fourth Amendment protection. But what he seeks to
preserve as private, even in an area accessible to the
public, may be constitutionally protected.” 

Thus, the Supreme Court long ago abandoned
the “trespass” doctrine, holding that a Fourth Amend-
ment violation could occur even without a physical
intrusion onto the plaintiff’s property. 

(“[T]he
reach of [the Fourth] Amendment cannot turn upon
the presence or absence of a physical intrusion into
any given enclosure.”).
  Thus, the threshold question in a Fourth Amendment
inquiry is not whether a trespass occurred, Sayre v. State,

, 713 (Ind. Ct. App. 1984) (citing United
States v. Conner, 

(7th Cir. 1973)); see also
United States v. Hanahan, 

, 654 (7th Cir. 1971)
(noting that the police officer had committed “no more
than a technical trespass,” which did not give rise to a
Fourth Amendment violation); it is whether the gov-
ernment violated the plaintiff’s privacy interest. The
Indiana tort of invasion of privacy, in the form of
intrusion, has the same focus: the plaintiff must show
“an intrusion upon [his] physical solitude or seclusion.”

. In contrast, to succeed in a
trespass claim, a plaintiff need not establish any privacy
interest; he must show only that he was in possession
14                                               No. 08-3324

of the land. See 

(“[I]t is necessary
for the plaintiff to prove only that he was in possession
of the land and that the defendant entered thereon
without right . . . .” (emphasis added) (alteration in origi-
nal) (quotations omitted)).
   We do not doubt that if the police lacked probable
cause to enter Leonelli’s home, the facts he alleged could
form the basis for either Indiana tort. But as explained
above, we must be careful when conducting our
analysis not to distort the federal claim to fit within
the confines of a particular state law. See 

. Federal law is clear that the core of a Fourth Amend-
ment claim is an expectation of privacy. This concern
is also at the center of an invasion of privacy claim under
Indiana law, but it is completely irrelevant in a trespass
case. For that reason, the most analogous state tort to
Leonelli’s unlawful entry claim is invasion of privacy,
which does not survive under the Indiana survival
statute. See Ind. Code § 34-9-3-1.


                     III. C ONCLUSION
  Nothing in our opinion requires that we resolve a
question of state law on which there is no clear controlling
Indiana precedent. For that reason, Bentz’s motion to
certify questions of law to the Indiana Supreme Court is
D ENIED.
  Leonelli’s federal claim for unreasonable seizure would
be treated under Indiana law as a false imprisonment
claim; his unlawful entry Fourth Amendment claim is
No. 08-3324                                        15

analogous to the Indiana tort of invasion of privacy.
Because neither tort survives under Indiana law, the
appellees’ motion to dismiss the appeal is G RANTED .




                        8-14-09