MONTELL CARTER, MICHAEL LOPEZ, and MILWAUKEE POLICE ASSOCIATION, Plaintiffs-Appellants,
CITY OF MILWAUKEE and KEITH ECCHER, Defendants-Appellees
Argued November 8, 2013.
Petition for certiorari filed at, 05/20/2014
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 10 CV 00782 -- Patricia J. Gorence, Magistrate Judge.
For MONTELL D. CARTER, MICHAEL LOPEZ, MILWAUKEE POLICE ASSOCIATION, Plaintiffs - Appellants: Brendan P. Matthews, Attorney, CERMELE & ASSOCIATES, Milwaukee, WI.
For CITY OF MILWAUKEE, KEITH ECCHER, Defendants - Appellees: Jan A. Smokowicz, Attorney, MILWAUKEE CITY ATTORNEY'S OFFICE, Milwaukee, WI.
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
Williams, Circuit Judge.
While police officers were executing a search warrant in a Milwaukee apartment, the apartment's resident accused the police of taking around $1750 of his cash. The commanding officer then ordered all officers to remain on the scene while they awaited further direction. This order did not come at a good time for Officer Montell Carter, who had taken a colon cleansing product outside the apartment and now needed to use the restroom, badly. Not wanting to use the apartment's bathroom, Carter told then-Lieutenant Keith Eccher he needed to leave to use the restroom. The lieutenant put his hand up and responded that he needed to search Carter first. The lieutenant then patted Carter down and searched his jacket, boots, and the items he was carrying. The dramatic ending to these events is, in fact, not dramatic at all. The lieutenant did not find the allegedly missing cash or any contraband on Carter, and Carter returned to the police station and used the restroom there. Carter filed this lawsuit maintaining he was the subject of an unconstitutional seizure and search. Because no reasonable officer in Carter's position would have feared arrest or detention if he did not comply with the search request, we conclude he was not seized. As a result, we affirm the district court's grant of summary judgment in the defendants' favor.
When he was called to the scene of a search warrant execution the afternoon of February 26, 2009, Montell Carter had been a police officer with the Milwaukee Police Department for nearly thirteen years. On that day, Officer Carter and other officers were stationed outside a residence while Tactical Enforcement Unit team members went inside to ensure there was no threat to the officers who would perform the search. Carter was outside for about twenty to thirty minutes before the tactical unit announced that all was clear.
Officer Carter had been taking Colonix, a non-prescription supplement to clean his colon, for about two weeks in an effort to lose weight. He did not, however, take the supplement at his normal time before leaving home for his shift that day because he had been running late. Thinking he would not be needed in the residence right away, Carter returned to his squad car after the tactical unit gave the all clear, mixed the Colonix with water, and drank it. He did so knowing that taking Colonix made him need to more frequently use the restroom.
Officer Carter and other officers entered the residence dressed in police uniform to search for drugs and currency. Tactical enforcement officers were still leaving the residence while the officers entered. Carter and his partner, Officer Michael Lopez, helped search the northwest bedroom. At some point, the apartment's resident, Mr. Mitchell (his first name is not clear from the record), told Officer Jose Viera that $1750 or $1800 in cash was missing from his bedroom. Mitchell said he had been sitting in his ...