testimony that she
gave him permission to register as a sex offender, Knox states that Smith
instructed him to leave his house on April 3 only for the purpose of
calling AMS. In addition, the AMS record that documents her instructions
about calling AMS contains no mention of her directions for registering.
That being the case, Knox's version must be credited — and that
in turn may create a reasonable inference that Smith's request for the
warrant on the basis of Knox's failure to register was deliberately or
recklessly unfounded. But that would not be enough to save his claim
under Olson, because Smith had the requisite probable cause to request
the warrant based on his failure to comply with her AMS instructions.
Even if Knox could not possibly have registered before the warrant was
issued, that does not undo the fact that he had separately violated his
parole by failing to call in as directed.
To be sure, Knox's failure to call on the morning of April 3 is a
relatively minor and somewhat technical infraction. But under Illinois
law (see 730 ILCS 5/3-3-7(a)(15)). Knox's April mandatory release
agreement required that he comply with the instructions of his parole
agent as a condition of his release. Moreover, Walker testified that
parole agents are authorized to request, and that he is authorized to
issue, warrants for any technical violation (S-W. R. St. ¶ 15). Thus
Knox's admitted failure to comply with Smith's instructions was a
reasonable basis for Smith to seek a parole violator warrant, and the
resulting April 9 arrest was not an unreasonable seizure in violation of
the Fourth Amendment.
But as the Background section of this opinion has indicated, the
circumstances that led to Knox's second challenged parole violation
arrest on June 22 are less clear. Fifteen hours after Knox first arrived
at his host site and checked in with AMS at 10:26 p.m. on May 28, Smith
had AMS page her supervisor to request a parole violation warrant.
According to Smith's violation report, she requested the warrant because
Knox had failed to comply with her May 29 instructions to call AMS every
two hours from a pay phone.
Knox urges that Smith knowingly or recklessly disregarded the truth in
her May 29 report recommending his arrest. He asserts that she had no
reasonable basis for seeking the warrant because she did not give him an
adequate opportunity to comply with the conditions of his parole and she
failed to follow the required parole procedures. Knox supports that
position with two arguments. First, he asserts that a genuine issue of
material fact exists as to whether Smith visited Knox on May 29. Second,
he disputes that Knox's failure to call AMS per her instructions was the
reason that Smith requested the May 29 warrant.
To be sure, Smith testified that she visited Knox on May 29 and
instructed him to call in to AMS bi-hourly. Her violation report conforms
to that account and lists Knox's failure to comply as the basis for
requesting the warrant. Moreover, although Knox's testimony reflects
considerable confusion over the circumstances and conditions attending
each of the many times he has been on parole, he does state in places
that Smith visited him after he
was released on May 28 and required him
to call in every two hours.*fn12
Against that evidence, Knox points out that, in contrast to the April
visit (S-W. Ex. J at 4-5), the later AMS report does not state that Smith
visited Knox on May 29, nor does it contain any mention of her
instructions to call in every two hours. That report does reflect,
however, that at 1:14 p.m. on May 29 Smith responded to an AMS page
advising her that Knox's host had been rude and belligerent. And Smith
stated on that record that Knox should not have been released to that
host site and that this was the second time it happened, so she requested
that a warrant be issued (S-W. Ex. O at 27).
It is uncontested that the AMS report provides key documentation of a
parolee's case and is supposed to reflect all activity pertaining to a
parolee, including visits from the agent. Walker testified that "AMS
records everything that happens in the case" and that "when people
involved in a specific case had information . . . about the case, they
had instructions to call it in to AMS" (S-W. Ex. D at 23).
At a minimum, then, the absence of an AMS record creates a reasonable
inference that Smith's testimony (1) about visiting with Knox and (2)
about the additional conditions of his parole that she assertedly put
into effect and then charged him with violating is not to be credited.
Moreover, the existing AMS report suggests that Smith's request for the
warrant was based not on Knox's failure to call in according to those
claimed instructions or any other alleged non-compliance, but rather on
the difficulty in finding an appropriate placement for him.
When all reasonable inferences are combined and drawn in Knox's favor,
it cannot be said as a matter of law that a reasonable jury would go awry
in concluding that Smith's misconduct was deliberate — that she
either knowingly lied or recklessly disregarded the truth in her
violation report (as to that standard, see, e.g., the reading of Olson in
Senger v. Jordan, No. 85 C 6493, 1989 WL 36225, at *4 (N.D. Ill. April
10)). Smith's report contains no information other than Knox's failure to
call in that would constitute sufficient cause for the parole violation
warrant. In sum, under Olson Knox has raised a reasonable inference that
Smith did not have a reasonable basis for requesting the warrant, so that
his later arrest on June 22 violated his Fourth Amendment right against
That leads to the second question posed by Saucier: whether Smith is
entitled to qualified immunity for her actions. On that score Olson, 771
F.2d at 281 (citations to Franks, 438 U.S. at 164-65 omitted) calls for a
It is clearly established that the fourth amendment
requires a truthful factual showing sufficient to
constitute probable cause. . . . An officer's
conduct in preparing a warrant affidavit that
contains only inaccurate statements that are
untruthful as that term is defined in Franks
violates the arrestee's fourth amendment rights. In
such a case, a reasonably well-trained police
officer would have known that the arrest was
That Smith was a parole agent filing a violation report, rather than a
police office submitting an affidavit, makes no difference (see Scotto v.