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Valance v. Wisel

April 7, 1997

VALANCE,

PLAINTIFF-APPELLANT,

v.

GAYLON WISEL, MIKE RENEAU, ED PEARCE, ET AL.,

DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division.

No. 95 C 255 William C. Lee, Judge.

Before EASTERBROOK, RIPPLE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

ARGUED SEPTEMBER 17, 1996

DECIDED APRIL 7, 1997

Valance *fn1 appeals the district court's entry of summary judgment in favor of the six law enforcement officers he sued under 42 U.S.C. sec. 1983. His suit grows out of a traffic stop that occurred in Garrett, Indiana on May 28, 1995. Valance maintains that the officers violated his rights under the Fourth and Fourteenth Amendments when they stopped his vehicle without probable cause and then detained him for the purpose of searching the vehicle. The district court concluded that the summary judgment record established probable cause for the stop and that the subsequent search of the vehicle was reasonable under the circumstances. Alternatively, the court believed that even if Valance could establish a violation of his constitutional rights, the officers would be entitled to qualified immunity from his claim to money damages. For the following reasons, we affirm the judgment of the district court.

I.

The relevant facts are largely undisputed. At approximately 11:20 p.m. on the evening of May 28, 1995, Officer Gaylon Wisel of the Garrett Police Department was on "D.U.I. Patrol" when he observed a car cross the center line twice while navigating an "S" curve. Wisel suspected that the driver may be under the influence of alcohol, and he therefore activated his lights and stopped the car. Wisel approached the vehicle and told its driver (Valance) that he had been stopped for going left of center. At the time, Valance indicated that he had just awakened, that he may not have been paying attention, and that he could understand how he may have gone left of center. Yet Valance now believes that his car never crossed the center line that evening. Wisel asked Valance whether he had been drinking, and Valance told the officer that he does not drink. Wisel then asked whether Valance would be willing to submit to a chemical test, and Valance indicated that he would. When Wisel requested to see his driver's license and registration, Valance was able to produce the registration but not his license, which he apparently had left at his sister's house earlier in the evening along with his wallet. Wisel told Valance to wait in his car while the officer called in his name and registration.

When Wisel reported over his radio that he had stopped a man named Valance, he was told that Valance was a convicted felon and that he was considered dangerous. Wisel was warned to be careful with Valance and to wait for support. He therefore remained in his squad car for fifteen to twenty minutes until Garrett police officers Ed Pearce and Mike Reneau arrived. Wisel and Reneau then approached Valance's vehicle, Wisel on the driver's side and Reneau on the passenger side, while Pearce remained at the rear of the vehicle. Wisel and Reneau were carrying flashlights, but neither had drawn a weapon. Upon reaching the driver's side door, Wisel asked Valance whether he was carrying any weapons, and Valance told the officer that he was not. Valance maintains that it was at this point that Wisel handed him a warning citation for driving left of center, but according to Wisel, the citation was given to Valance only later in the encounter.

Almost immediately after Valance denied having any weapons in the vehicle, Officer Reneau spotted what appeared to be a Colt Python .357 handgun on the floor in front of the passenger seat. He yelled "gun," and Wisel, Reneau, and Pearce drew their weapons. Wisel ordered Valance out of the car, and as he complied, Valance indicated that the gun was merely a pellet gun. Wisel escorted Valance to the squad car and asked whether Valance would permit the officers to search his vehicle. Valance told Wisel that the officers were free to search his car. Wisel then handcuffed Valance and placed him in the back seat of the squad car. While Wisel and Reneau conducted the search, Valance remained handcuffed in the squad car under the watch of Pearce.

As Wisel was taking Valance to the squad car and obtaining his consent to search, Reneau opened the passenger side door of Valance's vehicle and removed the holster and handgun from the floor. Reneau soon discovered that the weapon was merely a pellet gun that only resembled a Colt Python .357. Valance apparently used the pellet gun in his job as a private security officer. Because he was a convicted felon, Valance could not obtain a permit to carry an actual firearm, and the pellet gun enabled Valance to appear armed in the course of his security work. In searching the vehicle, Wisel and Reneau found in addition to the pellet gun a PR-24 side handle baton (a nightstick) mounted to the driver's side door and a gun belt containing twelve rounds of live ammunition in the trunk.

As Wisel and Reneau were searching the vehicle, another Garrett squad car arrived carrying Officers Harold Werkheiser and Larry Balliet. Werkheiser asked Wisel whether he had obtained Valance's consent to search the vehicle, and Wisel replied that Valance had verbally consented. Werkheiser directed Wisel to also obtain a written consent, and Wisel therefore approached Valance, removed his handcuffs, and asked Valance to sign a written consent form. Valance reviewed the form and then signed it. Because there were now additional officers on the scene, Wisel did not reapply the handcuffs after Valance had signed the consent form. The search of Valance's vehicle then continued for another ten to fifteen minutes, but no firearms were found.

As the search was nearing completion, Deputy Sheriff Timothy Rice of the Dekalb County Sheriff's Department drove past the scene. One of the Garrett police officers saw Rice and contacted him by radio, asking Rice to return. Rice did so and initially spoke to Officer Werkheiser, who told Rice that a pellet gun, a nightstick, and live ammunition had been found in Valance's vehicle after Officer Wisel had stopped Valance for a routine traffic violation. Rice also observed that Valance's vehicle was blue and that it was equipped with top-mounted amber lights. While observing Valance's vehicle and listening to Werkheiser's report, Rice recalled that a number of women had recently reported to the Sheriff's Department that they had been pulled over by a man operating a blue car who had been impersonating a police officer. Believing that Valance's car fit the description of the vehicle in those reports, Rice decided to photograph both Valance and his vehicle so that the photographs could be compared to the descriptions given by the complaining women. Rice took eight photographs of the vehicle from various perspectives before asking Valance for permission to take his photograph. Valance gave his permission, and Rice proceeded to take one frontal and one profile photograph.

Wisel maintains that at the conclusion of the search, he issued Valance a warning citation for his traffic violation and advised Valance that he was free to leave. As noted earlier, Valance indicates that he received the citation much earlier, before Reneau had spotted the pellet gun. ...


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