they were told of this examination before they arrested Booker.
While Booker went to Area One and waited there, defendants continued to question neighbors, friends, and relatives of Williams. Williams's cousin Elaine Sims told them that Booker had lived with Williams and that she had asked him to move out only three weeks earlier, telling him she no longer wanted to marry him. Sims also told them that Williams had been pregnant with Booker's child and had an abortion, but told Booker it was a miscarriage. She did not state that Booker had discovered this lie. Sims also said that Booker was very jealous, a heavy drinker, and often would forget what he had done while drinking. However, she did not state that he was violent or that he had ever threatened to harm Williams. Defendants also interviewed Williams's former husband who said he had last spoken with Williams about 10 days before she died. Approximately fourteen witnesses had been interviewed before defendants returned to the station to interview Booker.
Defendants arrived at Area One between 1:00 and 1:30 p.m., but did not begin interviewing Booker until approximately 2:00 p.m. At that point, Booker was waiting in the lineup room and that is where he was questioned. At the beginning of the questioning, defendants read Booker a standard Miranda warnings form and Booker signed the form. Booker was not expressly told that he was free to leave, but the Miranda warnings advised him of his right to not answer questions. Booker informed the officers that he had talked to Williams approximately 9:00 p.m. on the night before she was killed. He did not mention having any other contact with her that evening (other than an unsuccessful attempt to reach her by phone at approximately 8:00 p.m.), nor did he mention driving past her apartment building that evening or after midnight. Booker related that he had been drinking with friends throughout the evening and that he slept at the home of the girlfriend he was living with. He said he did not leave that home until 7:40 a.m. on August 7 when he left for work. Booker expressly denied knowledge of or participation in the killing of Williams. During the questioning, defendants had police records checked and were informed that Booker did not have a criminal record.
The officers requested that Booker submit to being fingerprinted and take a polygraph examination at police headquarters. At the time of this request, he was not expressly told that he could refuse or that he could simply leave. Throughout the time at Area One and while being transported to police headquarters, Booker was not handcuffed nor was any physical force used or threatened. At police headquarters, Booker was fingerprinted and then escorted in an elevator to where the polygraph examination was given. The polygraph examiner read Booker a form that repeated the Miranda warning and indicated participation in the examination was voluntary. Booker signed the form, acknowledging that he was voluntarily taking the examination. The examination took place from approximately 3:20 to 4:20 p.m. After the examination, the examiner informed defendants (outside Booker's presence) that it was his opinion that Booker was being untruthful and uncooperative and trying to beat the machine. With defendants' approval, the examiner then informed Booker that he could not pass Booker on the test. Booker subsequently admitted he had lied in that he had driven by Williams's apartment twice during the evening/morning of August 6/7. Defendants then expressly informed Booker he was under arrest at approximately 5:00 p.m. He confessed to the murder during the evening.
Plaintiff contends that he was arrested as of the time that defendants gave him his first set of Miranda warnings at Area One. This was approximately 2:00 p.m. Defendants contend that he was not arrested until expressly informed he was under arrest which was about 5:00 p.m. The only additional incriminating facts learned during the time between these two marking points was that Booker was in the vicinity of Williams's apartment during the evening before/morning of the murder and that he initially lied about not being there. These two facts are not part of the probable cause determination if plaintiff was already under arrest prior to the follow up questioning after the polygraph examination being completed.
An arrest can occur without a police officer formally announcing that the person is under arrest. Whether a person has been arrested is determined objectively; a person has been arrested "if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Burns, 37 F.3d 276, 279 (7th Cir. 1994), cert. denied, 132 L. Ed. 2d 840, 115 S. Ct. 2592 (1995) (quoting Michigan v. Chesternut, 486 U.S. 567, 573, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988)). Accord United States v. McCarthur, 6 F.3d 1270, 1275-76 (7th Cir. 1993); United States v. Lennick, 917 F.2d 974, 977 (7th Cir. 1990).
Certain factors have emerged as being probative of whether a reasonable person would have felt free to leave. These include: whether the encounter took place in a public area or whether police removed the person to another location; whether the police informed the person that she was not under arrest and was free to leave; whether police indicated to the person that she was suspected of a crime or was the specific target of police investigation; whether the person was deprived of documents without which she could not continue on her way, such as a driver's license or a train ticket; and whether there was physical touching, display of weapons, or other threatening behavior on the part of police that would communicate to a reasonable person that she was not free to end the encounter.
McCarthur, 6 F.3d at 1276. The length of questioning is also a factor to consider. Lennick, 917 F.2d at 977.
The Appellate Court concluded in Booker I, that Booker was under arrest prior to 5:00 p.m. Assuming that conclusion to be correct, is his arrest attributable to the conduct of defendants Ward and Kelly? Booker voluntarily went to the crime scene to provide information. He agreed to go to the police station to answer questions. He waited a short period and was questioned for a short period after receiving Miranda warnings. He agreed to take a polygraph test before which he was again given Miranda warnings. These facts are not determinative of custodial questioning. See Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 199 (7th Cir. 1985); Feltrop v. Delo, 46 F.3d 766, 773 (8th Cir. 1995); United States v. Cota, 953 F.2d 753, 758-59 (2d Cir. 1992).
It is undisputed that at one point Booker was told he was not being held, but was simultaneously told to wait for defendants to arrive. There is no evidence, however, that Ward or Kelly knew that Booker had been so informed. While at Area One, Booker was examined to see if blood had been splattered on him. This included a close examination of his fingers and taking off his shoes. This clearly implied Booker was a possible suspect. Again, however, neither Kelly nor Ward was aware this had happened. Also, although belief that one is a suspect may contribute to a reasonable belief that one is in custody, it is not determinative. Stansbury v. California, 511 U.S. 318, 128 L. Ed. 2d 293, 114 S. Ct. 1526, 1530 (1994); United States v. Jones, 21 F.3d 165, 170 (7th Cir. 1994).
Booker points to the fact that he was given Miranda warnings, contending a reasonable person would interpret that as at least a factor indicating he or she is under arrest. However, in neither Booker I nor Booker II did the Appellate Court rely on or even refer to the giving of Miranda warnings as indicative of an arrest. Moreover, federal law is that the giving of Miranda warnings is not a basis for finding a person to be in custody. See Davis v. Allsbrooks, 778 F.2d 168, 172 (4th Cir. 1985); United States v. Charles, 738 F.2d 686, 693 n.6 (5th Cir. 1984); United States v. Lewis, 556 F.2d 446, 449 (6th Cir.), cert. denied, 434 U.S. 863, 54 L. Ed. 2d 137, 98 S. Ct. 193 (1977). The giving of Miranda warnings relates to the voluntariness of statements and is encouraged. United States v. Lewis, 556 F.2d 446, 449 (6th Cir. 1977) ("The precaution of giving Miranda rights in what is thought could be a non-custodial interview should not be deterred by interpreting the giving of such rights as a restraint on the suspect, converting a non-custodial interview into a custodial interrogation for Miranda purposes.")
The conduct of Ward and Kelly was insufficient to change Booker's voluntary cooperation with the police into an arrest by defendants Ward and Kelly before 5:00 p.m. There is no dispute that Booker's initial trip to the police station was voluntary as the Appellate Court noted. Booker I, 568 N.E.2d at 217. The time spent at the police station was not lengthy when it is considered that defendants had to first complete their investigation at a murder scene. The initial interview of Booker lasted no more than an hour and the polygraph examination another hour. Booker, therefore, was not subjected to lengthy questioning. Most importantly, there was no use of or show of force indicating that Booker was not free to go and, at one point, he was actually told that he was free to go. Based on the facts assumed to be true for purposes of summary judgment, no reasonable factfinder could conclude that Booker was placed under arrest by the acts of the defendants before 5:00 p.m. Cf. Jones, 21 F.3d at 170; Allsbrooks, 778 F.2d at 170-72.
The conclusion that Booker was not placed under arrest by defendants prior to 5:00 p.m. is not contrary to the holdings of the Appellate Court in either Booker I or Booker II. In Booker I, the Court only singled out and placed special emphasis on the examination of Booker's hands and feet as indicative of a custodial investigation. Without this incident, for which the defendants were not responsible, it does not appear that the Court would have found an arrest before 5:00 p.m.
The evidence is that Booker was formally arrested by Ward and Kelly after the polygraph examination and his admission that he had lied. Unlike Illinois law, which does not permit polygraph examination results to be support for probable cause, see People v. Booker, 568 N.E.2d at 218, under federal law such results can be considered in determining whether probable cause existed. See Bennett v. City of Grand Prairie, Texas, 883 F.2d 400, 405-06 (5th Cir. 1989); Prokey v. Watkins, 942 F.2d 67, 73 (1st Cir. 1991); Marx v. Gumbinner, 905 F.2d 1503, 1507 (11th Cir. 1990).
At the point of the arrest, the officers had the additional knowledge that Booker had been untruthful about his whereabouts the night/morning of the murder. He had admitted having lied about seeking out Williams that night. Lying in response to police questioning is a strong indicator of guilt, see United States v. Leung, 929 F.2d 1204, 1208 (7th Cir.), cert. denied, 502 U.S. 906, 116 L. Ed. 2d 241, 112 S. Ct. 297 (1991), particularly when it is lying about an incriminating fact. The evidence supported that Williams's murderer knew her and her work schedule. Booker was one of the few people known to fall into that category. Moreover, he was known to be very jealous, thus providing a motive for the murder. With the additional evidence that he had lied about being in the area the night/morning of the murder, a probability existed that he had committed the murder. The officers, therefore, had probable cause to arrest him and cannot be held liable for a constitutional violation.
Although it does not appear that any material fact is in dispute, even if it were found that there are disputed facts regarding the existence of probable cause, it still must have to be determined whether defendants have qualified immunity. On this issue, plaintiff bears the burden of citing the existence of clearly established authority, on closely analogous facts, which, in August of 1987, would alert a reasonable police officer that his conduct toward plaintiff was clearly unlawful. Hannon v. Turnage, 892 F.2d 653, 656 (7th Cir.), cert. denied, 498 U.S. 821, 111 S. Ct. 69, 112 L. Ed. 2d 43 (1990). Qualified immunity analysis is a two step inquiry: whether the law was clearly established and, if so, whether the conduct was objectively reasonable. Biddle v. Martin, 992 F.2d 673, 675 (7th Cir. 1993).
Plaintiff points to no existing law with closely analogous facts (prior to Booker I in 1991) that would have clearly established that the facts known to defendants would have required them to know that their conduct was unlawful. Plaintiff contends, rather, that the standard for qualified immunity and probable cause are essentially merged and that a factual issue with respect to probable cause would require a trial of both issues. Recent Seventh Circuit authority is to the contrary. Maltby v. Winston, 36 F.3d at 557. The standard for qualified immunity is different from the standard for probable cause. In Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir. 1994), the Court stated that
even in cases where there was no probable cause for the arrest, by holding that 'if officers of reasonable competence could disagree' on whether there was probable cause, the defendant would be immune from damages liability. In other words, only if no reasonable officer could have mistakenly believed that he had probable cause to arrest is the immunity forfeited.
If probable cause did not exist, the officers are nevertheless entitled to qualified immunity if their mistake as to the existence of probable cause for an arrest was reasonable despite the pertinent law that was clearly established as of the August 1987 incident. Maltby, 36 F.3d at 557; Eversole v. Steele, 59 F.3d 710, 717-18 (7th Cir. 1995); Burns v. Reed, 44 F.3d 524, 529 (7th Cir.), cert. denied, 132 L. Ed. 2d 832, 115 S. Ct. 2583 (1995). "The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Eversole, 59 F.3d at 717 (quoting Hunter v. Bryant, 502 U.S. 224, 229, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991)).
If the facts create a dispute as to whether Booker could have reasonably believed he was free to leave, it still has to be considered that Kelly and Ward were not aware of all that had happened prior to their arrival at the police station. They did not know of officers telling Booker not to leave the scene of the crime and to continue to wait at the police station. They did not know that Booker's fingernails, socks, and feet had been examined. To the extent such facts would be necessary to a finding of being in custody, Kelly and Ward would still be entitled to qualified immunity because, based on the information known to them, they had a reasonable basis for believing Booker was not placed under arrest until they formally placed him under arrest, and that arrest was not unlawful.
Defendants Ward and Kelly are entitled to claim qualified immunity.
Defendants' motion for summary judgment will be granted.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment  is granted. The Clerk of the Court is directed to enter judgment in favor of defendants and against plaintiff dismissing his cause of action with prejudice.
William T. Hart
UNITED STATES DISTRICT JUDGE
Dated: October 13, 1995
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