United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted August 19, 2019*

Decided August 20, 2019 

Before 

FRANK H. EASTERBROOK, Circuit Judge 

MICHAEL S. KANNE, Circuit Judge 

DIANE S. SYKES, Circuit Judge

No. 19-1446 

CHARLES BROWN, 

Plaintiff-Appellant, 

v. 

RACINE COUNTY and KEVIN J. 

KAZMIERSKI, 

 Defendants-Appellees.

 Appeal from the United States District 

Court for the Eastern District of Wisconsin. 

No. 17-CV-525 

David E. Jones, 

Magistrate Judge. 

O R D E R 

A deputy sheriff stopped Charles Brown’s car and later searched his groin area 

on the side of a highway, finding heroin. After pleading guilty in Wisconsin state court 

to possession with intent to deliver heroin, Brown sued the deputy and Racine County 

under 42 U.S.C. § 1983, contending that the stop and search violated the Fourth 

Amendment. The magistrate judge, sitting by consent of the parties, entered summary 

judgment against Brown. The judge reasoned that under Heck v. Humphrey, 512 U.S. 477 

 

*

 We have agreed to decide the case without oral argument because the briefs and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 19-1446 Page 2 

(1994), he must “assume” that the stop was valid, which rendered the search lawful as 

incident to an arrest. Because the judge’s analysis of Heck was incorrect, we vacate and 

remand for proceedings to assess the validity of the stop. 

We recount the facts about the car stop in the light most favorable to Brown. See 

Matz v. Klotka, 769 F.3d 517, 520 (7th Cir. 2014). Deputy Kevin Kazmierski saw a car 

with a partially obstructed license plate and, after running a search of the plate, 

discovered that the registered owner had a suspended license. Believing that the owner 

could also be the current driver, Kazmierski pulled the car over. The driver was not the 

registered owner. The driver told Kazmierksi that she had recently bought the car and 

had not yet transferred the title to her name. Brown was a passenger in the car. 

The driver’s answer did not end the car stop. Kazmierski swears that when he 

approached the car, he smelled an “overpowering odor” of air freshener. In his 

experience, “[a]ir fresheners are frequently used as a masking agent to hide the odor of 

drugs.” Because of the air freshener, Kazmierski asked the occupants for identification, 

which they supplied, and he then ran background checks. The checks revealed that they 

had drug-related convictions. With this added information, Kazmierski prolonged the 

stop further to call for a police dog to sniff the car. While waiting for the canine unit, he 

had Brown and the driver stand between the squad car and a concrete barrier. About 10 

minutes later, the canine unit arrived. It alerted to drugs in the car. 

 

Based on the dog’s alert, Kazmierski patted down Brown. According to Brown, 

Kazmierski “grabbed, squeezed, and manipulated the front groin area of [Brown’s] 

pants” for two or three minutes. During the pat-down, Kazmierski felt a hard object 

near Brown’s groin. Kazmierski pulled the waist of the pants forward, and another 

officer reached inside Brown’s thermal underwear and retrieved 200 grams of heroin. 

Brown ultimately pleaded guilty to possessing more than 50 grams of heroin. 

After Brown sued Kazmierski and the county, the judge allowed him to proceed 

on two claims: (1) Kazmierski conducted an unreasonable seizure and search of Brown 

in violation of the Fourth Amendment, and (2) the county had a policy or custom of 

conducting unreasonable strip searches. Later, the judge entered summary judgment in 

favor of the defendants. He first reasoned that based on Heck “this Court must assume 

that [the car stop] complied with the Fourth Amendment.” For “[i]f this Court 

concludes that the initial Terry stop or arrest were unlawful, it would necessarily 

undermine Mr. Brown’s criminal conviction for the 200 grams of heroin he possessed 

during the incident.” Based on the assumption that the seizure was lawful, the judge 
No. 19-1446 Page 3 

concluded that the search was reasonable because it was incident to a valid arrest and 

Brown’s private parts were not exposed to onlookers. Finally, he ruled that Brown had 

not put forth evidence that the county had an unlawful custom of searches in public. 

On appeal, Brown argues that the judge misapplied Heck to his Fourth 

Amendment claim by assuming that the car stop was proper. We agree. Heck holds that 

if “the plaintiff's action, even if successful, will not demonstrate the invalidity of any 

outstanding criminal judgment against the plaintiff, the action should be allowed to 

proceed, in the absence of some other bar to the suit.” 512 U.S. at 487. Brown’s criminal 

judgment is based, not on the car stop or evidence derived from it, but on his guilty 

plea. And Brown’s Fourth Amendment claim does not challenge the validity of that 

plea. Thus, an invalid seizure (and search incident to it) would not necessarily imply that 

his conviction was unlawful. See Wallace v. Kato, 549 U.S. 384, 393–94 (2007); Rollins v. 

Willet, 770 F.3d 575, 576 (7th Cir. 2014) (reasoning that since there was no trial, “[a] 

finding that the defendant was illegally seized—the finding he seeks in this suit—

would therefore have no relevance to the validity of his guilty plea and ensuing 

conviction”); Covey v. Assessor of Ohio Cty., 777 F.3d 186, 197 (4th Cir. 2015) (“[A] civilrights claim does not necessarily imply the invalidity of a conviction or sentence if (1) 

the conviction derives from a guilty plea rather than a verdict obtained with unlawfully 

obtained evidence and (2) the plaintiff does not plead facts inconsistent with guilt.”) 

On remand, the judge will need to resolve the parties’ dispute about the 

reasonableness of Kazmierski’s seizure of Brown (the impermissibility of which could 

also invalidate the search incident to it). We decline to decide the matter in the first 

instance. See Singleton v. Wulff, 428 U.S. 106, 121 (1976); Metro. Milwaukee Ass’n of 

Commerce v. Milwaukee Cty., 325 F.3d 879 (7th Cir. 2003). Although we may resolve an 

issue left open by the district court “where the proper resolution is beyond any doubt” 

or “injustice might otherwise result,” no one contends those circumstances are present 

here. Singleton, 428 U.S. at 121 (quoting Hormel v. Helvering, 312 U.S 552, 557 (1941)). 

Finally, Brown does not challenge the judge’s conclusion that he failed to present 

evidence that Racine County had a custom or policy of strip searching individuals in 

public. Because the county can be liable only if constitutional violations derive from 

such a policy, see Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694–95 (1978), the judge 

properly entered summary judgment in favor of the county. 
No. 19-1446 Page 4 

Accordingly, we AFFIRM the district court’s entry of summary judgment in 

favor of Racine County. We VACATE the judgment on Brown’s Fourth Amendment 

claim against Kazmierski and REMAND for further proceedings.