### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 2730
R YAN L EAVER , Plaintiff

- Appellant ,

v.

G ARY S HORTESS , Defendant

- Appellee

.

____________________ Appeal from the United States District Court for the Eastern District of Wisconsin

. No. 14

- C

- 224

— William C . Griesbach , Chief J udge

.

____________________
A RGUED J ANUARY 7, 2016

— D ECIDED D ECEMBER 21, 2016

____________________

Before E ASTERBROOK , M ANION , and S YKES , Circuit Judges

. S YKES , Circuit Judge

. Ryan Leaver was arrested in Montana on a Wisconsin warrant for theft by lessee after he failed to return a rental car to Hertz Rent

- A

- Car in Appleton , Wisconsin . He spent more than two months in a Montana jail before being extradit ed to Wisconsin . The theft c harge

was eventually dropped

.2 No. 15

- 2730

Leaver then filed t his suit under 42 U.S.C. § 1983 alleging that the investigating officer, Sergeant Gary Shortess of the Outagamie County Sheriff’s Department , intentionally or recklessly omitted certain exculpatory information from his police report s that wo uld have defeated probable cause for the charge and accompanying warrant

. The district court granted summary judgment for Shortess.
We affirm. N o evidence suggests that Shortess was pe rsonal ly aware of the information Leaver claims w as wrongly omitted from the police report s

. And e ven if he was aware of it , qualified immunity applies . I t’s not clear that the info rmation w ould have negated probable cause

. I. Background
The s aga of Leaver’s arrest and extradition beg i n s in August 2010 in Appleton, Wisconsin, where Leaver was then living in a motel. On August 2 Leaver’s parked car was struck by a driver who was insured by West Bend Mutual Insurance C ompany . West Bend covered Leaver ’s loss and agreed to pay for a rental car from Hertz

. That same day Le aver went to Hertz ’s Appleton office , signed a rental agreement , loaded all his belong ings into a rented 2 010 Toyota Camry , and set off westward , leaving the state . He wound up in Montana . T here he stayed.

T he rental contract, however, provided that the Camry

was due back to Hertz Appleton on August 12 . At Leaver’ s request , and with West Bend ’s consent , Hertz extended the return date to August 16. That date came and went, but Leaver did not return the car. When he still hadn’t returned the car by August 18, Hertz reported it stolen.No. 15

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Deputy John Drews of the Outagamie County Sheriff’s Department took the initia l theft report from Hertz

. H e learned that Leaver had designated Sam Cartier , his roo mmate in Appleton, as his contact person. Drews contacted Cartier, who said he had last spoke n to Leaver on August 9 or 10

. Cartier also explained that Leaver had packed a ll his belongings in the rental car and was pos sibly headed for California. Cartier gave Drews the last contact information he had for Leaver

— a phone number for a Motel 6 in Montana . Drews called the number but Leaver had already checked out . With no further leads on either Leaver or the

car , Drews directed the communications center in the Outagamie County Sheriff’s Department to enter the car into the stolen

- vehicle re gistry and send an alert to the Montana Highway P atrol to be on the lookout for the missing Camry

. On September 10 Sergeant Shortess picked up the inve stigative trail when the Sheriff’s Department received a tele type that the stole n Camry had been located , unda maged, in Montana. Shortess reviewed Drews’ s report and the
statement he had t aken from th e complaining witness at Hertz Appleton

. He also looked at the rental agreement , which showed that Leaver ha d a Michigan driver’s license. Shortess c alled the Michigan State Police looking for contact infor mation for Leaver or anything else that might assist in locating him or a family member

. This inquiry turned up nothing. Based on what he then knew, Shortess concluded that he had enough to refer the matter to the Outagamie County District Attorney for a theft charge

. He prepared a report t o that effect , listing that day’s date

— September 10 , 2010

— as the date the car was recovered in Montana.4 No. 15

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The matter stalled for six months. Then o n March 16, 2011 , an Outagamie County Assistant District Attorney filed

a criminal complaint charging Leaver wi th theft by lessee

. See W IS

. S TAT . § 943.20(1)(e)

. A n arrest warrant was issued that same day , though many weeks would pass before Leaver was located and arrested.

Leaver maintains that he was entitled to ke e p the Camry for up to 62 days and return it to any Hertz location in the country

. H e points to the following clause in the rental agreement : “ T his vehicle must be returned to Appleton, WI on 08/12/10 at 16:42 or a higher rate and/or inter city fee will apply

. Minimum keep: 1 rental day. Maximum kee p: 62 days @26.99/day.” But a separate section en titled “Return” also
states : “ Y ou must return the car to Hertz by the due date specified on the rental record, or sooner if demand ed by Hertz.” A dding to the confusion , th e agree ment also pr ovides that “[i]n no event” is the renter allowed to keep the car “f or more than thirty (30) days.”

Leaver claims that he returned the Camry to the parking lot at a Hertz location in Belgrade, Montana , on August 26, 2010 . He also says that he called Hertz’s national number and got oral permis sion to return the car there, though nothing corroborates that claim

. On April 9 , 2011

— after the criminal complaint was filed and the warrant was is sued

— Leaver wrote to Outagamie County Assistant D istrict Attorney Patrick Taylor informing him that he had returned the Camry to Hertz in Belgrade , Montana . He accus ed Hertz of insurance fraud and sugges ted that the prosecutor contact “ Matt ” at Hertz Belgrad e and Katherine Horton at Hertz ’s toll

- free nat ional number , both of who m (he said) would con firm his story. On May 12 ADANo. 15

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Taylor sent Shortess a memo directing him to follow up with the people Leav er identified in his letter

. Shortess did n o t do so, b ut he did investigate further in Appleton

. He contacted James Foytik, the manager at Hertz Appleton , who told him that the Camry was n ’ t a “ one

- way rental ” (as Leaver’s letter claimed) and confirmed that Leaver had to return the car to Hertz Appleton by A ugust 16

. Foytik also told Shortess that Hertz h ad p laced Leaver on a nationwide “do not rent” list b ased on his fail ure to return the Camry. Shortess then contacted the corporate security manager for West Bend Insurance , who likewise confirmed that the rental agreement was not a one

way rental. After discussing the case with another sergeant and the prosecutor , Shortess filed a supplemental report memori alizing this additional investigation and conclud ing that nothing in Leaver’s letter call ed into question the factual basis for the theft charge

. O n May 27, 2011, Leaver was arrested in Bozeman, Montana . He remained in jail until August 4, when he was extradited to Wisconsin

. The next day he was brought before a court commissioner in Outagamie County Circuit Court for an initial appearance

. Leaver’s lawyer moved to dismiss the c as e , arguing that the ren tal contract was vague about when and where the car needed to be returned . He also told the court commissioner that Leaver had re turned the car to the Hertz lot in Belgrade , Montana , and pointedly noted that the p rosecutor had failed to mention t hat the car was reco vered there

. The court commiss ioner denied the motion, finding probable cause for the c rime of theft by lessee in violation of § 943.20(1)(e). Leaver renewed his dismissal6 No. 15

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motion w hen the case came before a circuit court judge in December , but the motion was again denied. On Janua ry 17, 2012 , the prosecutor drop ped the charge and the case was dismissed. Leaver then turned his sights on Hertz, winning a substantial financial settlement

. We’re concerned here with Leaver’s § 1983 damages claim against Shortess f o r v iolat i ng his Fourth Amendment right to be free from unreasonable seizure . Leaver contends that Shortess intentionally or recklessly omitted from his police reports certain facts that would have affected the prosecutor’s probable

- cause determination

— namely, the terms of the “m aximum keep” provision i n the rental agreement and the

“ fact ” that he had ret urned the car to Hertz Belgrade on August 26, 2010

. The district judge entered summary jud gment for Shortess , holding that no evidence supported Leaver’s assertion th at Shortess was aware of t he omitted information and the omitted information wou ldn’t have undermined the probable

- cause determination anyway

. II. Discussion
We review a summary judgment de novo
, construing the evidence in the light most favorable to Leaver and drawing all reasonable inferences i n his favor. Townsend v. Cooper , 759 F.3d 678, 685 (7th Cir. 2014). Leaver claims that Shortess intentionally or recklessly omitted facts from his written report s that would have affected the prosecutor’s charging decision, which in turn led to the issuance of a n invalid arrest warrant and thu s his arrest with out probable cause , all in violation of his rights under the Fourth Amendment

. 1

1 A warrantless arrest without probable cause gives rise to a Fourth Amendment claim for false arrest, which “cover [ s ] the time of detentionNo. 15

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W e accept , as we must at this stage, Leaver’s claim that he returned the car to Hertz Belgrade on August 26 . But no evidence suggests t hat Shortess was actually aware of that fact

. The September 10 teletype said only that the stolen car
was re covered in Montana

— not that it was returned to a Hertz location there

. As for the terms of the rental agre ement , the most we can say is that the agreement contains some apparent inconsistenc ies

. It prescribes a fixed date and place for the car’s return : August 12 , 2010 (extended to August 16) ; Hertz Appleton . B ut it also include s a longer

“ maximum keep” period ( 62 days ) , together with a warn ing that extra fees will apply for intercity returns and any add itional day s beyond the listed return date. In light of the other facts Shortess had gathered in his investigation , these conflicting contract provisions do not conclusively negate probable cause. Or at least qualified immunity applies. It would not have been clear to a reasonable officer that t hese
contrac t provisions defeat probable cause. “Qualified immunity protects police officers from suit to the extent that their actions could reasonably have been thought consistent with the rights they are alleged to have violated. ” Whitlock v. Brown , 596 F.3d 406, 410 (7th Cir. 2010) (internal quotation marks omitted)

. Leaver ’s Four th

up until issuance of process or arraignment.” Wallace v. Kato , 549 U.S. 384, 390 (2007). Once legal process commences , the Due Process Clause takes over and the claim is recognized

— if at all

— as one for malicious prosecution. Bianchi v. McQueen , 818 F.3d 309, 322 (7th Cir. 2016) (reco gnizing that after Wallace a Fourth Amendment false

- arrest claim is limited to the period before legal process begins). Le aver was arrested on

a warr ant that was issued with the criminal complaint . It’s not clear that the Fourth Amendment applies at all, but Shortess d idn’t raise this point so we consider it waived.8 No. 15

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Amendment claim rests on an argu ment that the arrest warrant was invalid because Shortess withheld facts from his police reports that would have negated probable cause

. A lthough we ge nerally presume the validity of a warrant, that presumption may be overcome by a showing that the officer who sought the warrant “intentionally or recklessly withheld material facts from the warrant

- issuing judge.” Id.
at 410

– 11. The key question here is w hether the omitted details were indeed material to the probable

- cause determ ination, a question we approach by asking “whether a hyp othetical affidavit that included the omitted material would still establish probable cause.” Id. at 411 (quotation marks

om itted).
I n the context of a § 1983 damages claim against the o fficer who sought the warrant, this inquiry account s f or the availability of qualified im munity. T hat is, we ask whether it would have been clear to a reasonable officer that the omi tted fact w as material to the probable

- cause determination

. Id. at 412

– 14; see Anderson v. Creighton , 483 U.S. 635, 641 (1987).

P robable cause “ is a common

- sense inquiry requiring o nly a probability of criminal activity; it exists whenever an officer or a court has enough information to warrant a prudent person to believe criminal conduct has occurred

. ” Whitlock , 596 F.3d at 411. Wisconsin ’s theft

- by

- lessee statute makes it a crime to “ [i] ntentionally fail [] to return any personal property which is in his or her poss ession or under his or her control by virtue of a written lease or written rental agreement after the lease or rental agreement has expired.” § 943.20(1)(e). T he materiality of the omitted information depends in part on how Wisconsin law treats aNo. 15

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rental

- ca r agreement with both a fixed expiration date and a longer “m aximum keep ” provision

. We have some guidance. The Wisconsin Supreme Court has upheld the validity of an arrest warrant for violation of the theft

- by

- lessee statute in a case involving a similarly confusing equipment rental agreement : We hold the arrest was valid. The equipment was rented on September 13, 1975. The rental agreement included a space labeled ‘Date to be Returned.’ That space was filled in with the date ‘9/15/75.’ Although the agreement inclu ded a clause providing for additional rent if the equipment was returned after the date agreed upon, we do not believe that clause changed the expiratio n date of the rental contract.
Robinson v. State , 301 N.W.2d 429, 432 ( Wis. 1981). R obinson lends support to Shortess’s reading of the Hertz contract

. At the very least , Shortess can claim the protection of qualified immunity , which “ tolerates reasonable mistakes regarding probable cause.” Whitlock , 596 F.3d at 413. Kno wing what Shortess knew, a reasonable officer could have concluded that Leaver committed theft by lessee notwit hstanding the confusing language in the contract

. Shortess knew that the rental agreement ha d a fixed expir ation date of August 16, 2010 , and also listed Hertz Appleton as the return location . He knew that t he car was not returned to Hertz Apple ton by that date. He confirmed with Hertz Appleton

— and also West Bend Insurance

— t hat the car was
not a one

- way rental. He also knew that Leaver had packed all his belongin gs in the leased car and headed for the west10 No. 15

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coast and was last known to be in Montana

. True, he was also aware by September 10 that the car was recovered in Montana , but as we’ve noted , no evidence suggests that he knew it had been returned to a Hertz loc ation there. Shortess ’s interpretation of the rental agreement was reaso nable under the circumstances and has some support in Wisconsin law , and he was entitled to rely on the credible complaining witnesses at Hertz Appleton

. In short , it would not have be en clear to a reasonable o fficer that the information Leaver claims Shortess wrong ly omitted from his police reports would have negated prob able cause. Indeed, a Wisconsin court commissioner and circuit court judge

— both aware of the language in the rental contract and Leaver’s claim that he returned the car to Hertz Belgrade on August 26

— found probable cause for the charge of theft by lessee. The district judge properly entered su mmary judgment for Shortess.
A FFIRMED

.