### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 12

‐ 3378

S HARRON B ALTHAZAR

, Plaintiff

‐ Appellant

,

v.

C ITY OF C HICAGO

, J OHN M URPHY

, and N ICK B ECKMAN

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 10 C 4760

— John W. Darrah

, Judge

.

____________________

A RGUED O CTOBER 8, 2013

— D ECIDED N OVEMBER 8, 2013

____________________

Before B AUER

, P OSNER

, and E ASTERBROOK

, Circuit Judges

.

P OSNER

, Circuit Judge

. Sharron Balthazar sued the City of

Chicago (which we can ignore) and two of its police officers

under 42 U.S.C. § 1983, charging that the two officers, and

several others not charged, had conducted an unreasonable

search of her apartment, in violation therefore of the Fourth

Amendment, which has been made applicable to searches by

state or local officers (as in this case) by interpretation of the2 No. 12

‐ 3378

due process clause of the Fourteenth Amendment. A jury

returned a verdict for the defendants, and Balthazar appeals.

She lived on the third floor of an apartment house. There

were two apartments on that floor, one facing the street and

the other an alley behind the building. Police had a warrant

to search the apartment facing the alley for narcotics. Both

apartments had rear doors about fifteen feet apart opening

on a common balcony from which flights of stairs descended

to the ground. Early in a fall afternoon in 2009, police, in

‐ cluding the two defendant officers, arrived to execute the

search warrant. The officers climbed the stairs to the bal

‐

cony. One of them (defendant Beckman) carried a battering

ram—in police lingo he was the “breach officer” on the war

‐

rant team. Beckman swung the ram at the door of the plain

‐

tiff’s apartment, breaking it open. According to the plaintiff’s

testimony (and also that of her 14

‐ year

‐ old son and her sis

‐

ter—the son was in the apartment with his mother and her

cousin; the sister came over later, allegedly to help clean up

a mess created by the police), the officers entered the

Balthazar apartment, screaming profanities and pointing

their guns, which included “long guns” (not further de

‐ fined), “face

‐ to

‐ face, like two inches away,” at the occupants

(the plaintiff, her son, and a cousin, who didn’t testify, of the

plaintiff’s). The officers handcuffed the plaintiff and her

cousin and ransacked the apartment, dumping “flour and

sugar everywhere and food on the floor,” opening drawers,

flipping mattresses, throwing clothing, and in short turning

the apartment into a “total disaster.” Ten or fifteen minutes

into the search another officer appeared and told the search

‐

ers they were in the wrong apartment, whereupon they all

left for the other apartment on the plaintiff’s floor, the one

for which they had the search warrant.No. 12

‐ 3378 3

That is the plaintiff’s version of the facts. According to

the defendants, Beckman, wanting to “get up the stairs as

quickly as possible” to avoid a “potential hazard,” became

slightly disoriented lugging the battering ram—which

weighed at least 30 pounds and possibly as much as 85

pounds—up two and a half flights of stairs (the first floor of

the apartment house was a half flight of stairs above the

ground). As a result he confused the two apartments on the

plaintiff’s floor. He was the first officer to reach the balcony

but officer Murphy, the other defendant officer and the

leader of the warrant team, was only about ten feet behind

Beckman on the staircase and saw that Beckman was at the

wrong door and shouted “wrong door, wrong door!” Too

late; Beckman had started to swing the battering ram and

couldn’t check its momentum, though in an unsuccessful ef

‐

fort to avoid hitting the door he was able to lower the ram

far enough that it hit just the bottom of the door. Still, the

door burst open and he saw a man inside (it must have been

the cousin), as did Murphy and another officer, who was

close behind him. None of the officers entered the plaintiff’s

apartment. They rushed immediately to the other apartment,

the one designated in their warrant, and searched it after

battering in the door when no one answered their demand to

open the door (there turned out to be no one in that apart

‐

ment).

The plaintiff’s brief recites Balthazar’s version of the facts

as if it were Gospel, but changes gears in the argument sec

‐

tion and says that “the undisputed facts at trial established

that Defendant Beckman forcibly breached Plaintiff’s back

door and was able to observe inside Plaintiff’s apartment

without a warrant or any other legal justification. Courts

have repeatedly held that viewing inside Plaintiff’s apart

‐4 No. 12

‐ 3378

ment under these circumstances constituted a search.” The

argument sections of her briefs contain no reference to the

version of the facts to which the plaintiff testified and which

the lawyer in his opening and closing arguments urged the

jury to accept: no reference to guns, handcuffs, flour and

sugar on the floor, mattresses upended, etc.

We’ll discuss the objections of the plaintiff’s lawyer to

rulings by the judge concerning the alternative factual narra

‐

tive, in which the “search” is a glance sans handcuffs and

guns and ransacking. But even if the objections are compel

‐ ling, it would be a travesty of justice for the plaintiff to be

allowed to prevail. If the police officers did not enter her

apartment, terrify the occupants by pointing “long guns” at

them, handcuff her and her cousin, and ransack the apart

‐

ment, then her testimony that they did these things was per

‐ jured (doubtless to magnify her damages if she prevailed, as

the police had already voluntarily paid for the damage to the

door), because she couldn’t have been innocently mistaken

in testifying to these actions. In effect her counsel is telling

us: “Yes, she lied, and that’s why I’m going to talk just about

the alternative theory, which is that Beckman, having after

mistakenly breaking in glanced into the apartment (how

could he help doing so?) and the glance was a search.” The

glance

‐ in theory is true only if the handcuff

‐ long

‐ gun

‐

ransack theory is false, and if it’s false that is because it’s a

fabrication by the plaintiff, aided and abetted by her son and

sister. It couldn’t be an erroneous recollection. What reason

‐

able jury would accept a theory of liability that presupposed

that the plaintiff was a perjurer?

There is every indication that it was indeed a fabrication.

The only witnesses called by the plaintiff, besides herself,No. 12

‐ 3378 5

her son, and her sister, were the two defendants and one

other officer—adverse witnesses all three of whom denied

the plaintiff’s tale. And the sister did not confirm the pres

‐

ence of flour and sugar on the kitchen floor, or the son his

mother’s testimony that he was so frightened by the incident

that he wanted to sleep in her bed “all the time.” He testified

that he played basketball later that day, laughed about the

event with his mom, and that within two days the incident

was completely gone from his thoughts, except that he “can’t

believe in the police that much no more”(a remark consistent

with the police having simply broken open the door by mis

‐ take). While insisting that the officers brandished “long

guns,” mother and son were evasive and would not testify

that by “long guns” they meant rifles or shotguns rather

than pistols.

Balthazar did take her son to a hospital several days after

the incident, presumably for psychiatric counseling, and was

billed $623 for the visit (plus the same amount for whatever

counseling or other services she received from the hospital).

But no medical record of diagnosis or treatment either of her

or her son was placed in evidence. The son was given a pre

‐ scription at the hospital, but he doesn’t know for what, and

he didn’t fill it.

Neither the City claims adjuster who visited the apart

‐

ment the day of the incident, nor the employee of the Inde

‐ pendent Police Review Authority who took the plaintiff’s

call reporting the incident, testified that the plaintiff had

complained about anything other than damage to her door.

In his closing argument the defendants’ lawyer told the

jury: “Even plaintiffs’ counsel doesn’t believe his clients”

(clients, not client, because Balthazar’s son was originally a6 No. 12

‐ 3378

plaintiff, though he dropped out of the case at some point,

for undisclosed reasons). The plaintiff’s counsel objected to

the comment about not believing his clients, but the judge

overruled the objection on the ground: “This is argument.”

By “argument” the judge must have meant that the defen

‐

dants’ lawyer was drawing an inference from evidence pre

‐

sented at the trial. It was not an unreasonable inference, but

it was speculation; at most the lawyer could have inferred,

from the emphasis that the plaintiff’s lawyer placed on the

second theory of liability (what we’re calling the “glance

‐ in”

search), that the lawyer didn’t expect the jury to believe the

first theory. That may have been what the defendants’ law

‐

yer meant by the remark, but it was not what she said. What

she said sounded as if she might have some private knowl

‐ edge that the plaintiff’s lawyer disbelieved his client. The

defendants acknowledge in their brief that the statement that

the plaintiff’s counsel did not believe his client was “im

‐ proper.”

In closing argument, discussing the theory of the glance

‐

in search, the defendants’ lawyer said: “Now, what about

seeing inside an apartment as an unreasonable search? What

does seeing inside mean? If taken literally, it means that

every time a police officer walks by a window or an open

door, that he’s conducting a—” whereupon the plaintiff’s

lawyer objected. The judge overruled the objection. The de

‐

fendants’ lawyer went on to say that “with these facts, see

‐ ing a person standing inside an apartment and nothing

more, and considering that a search, is not common sense.”

Again an objection, again overruled.

Evidently the jury was confused about what constitutes a

search, because during its deliberations it sent a note to theNo. 12

‐ 3378 7

judge saying: “Can you please place points of clarification

upon the following statement: ‘A search does not require

physical entry into a home or apartment. Simply breaching

an entry door and seeing inside an apartment constitutes a

search.’ Please provide insight as to if this statement is fact in

a court of law or just a general statement. Further, can you

define the word ‘seeing’?” The judge responded: “The law

that you are to apply is contained in the jury instructions.

Please consider all of them carefully.”

In fact the instructions had addressed briefly and clearly

the very question that the jury asked: “A search does not re

‐ quire physical entry into a home or apartment. Simply

breaching an entry door and seeing inside an apartment

constitutes a search.” The instruction had been proposed by

the plaintiff’s lawyer and unsuccessfully opposed by the de

‐

fendants’ lawyer; we’ll see shortly that it was excessively fa

‐

vorable to the plaintiff. The jury’s question quoted the pas

‐

sage back to the judge. Had the judge repeated the instruc

‐

tion in response to the jury’s question, adding that the in

‐

struction was not merely a “general statement” but an exact

and correct statement of the law and therefore binding on

the jury, and that the word “seeing” in the instruction was

meant in the everyday sense of the word, the jury’s confu

‐

sion would almost certainly (so far as one can be certain in

such matters without interrogating the jurors, which is for

‐ bidden) have been dispelled. Merely to tell the jurors that

“the law that you are asked to apply is contained in the jury

instructions” failed to direct them to the one instruction that

would dispel any confusion.

Over and over again in their brief the defendants recite

the mantra that juries are presumed to obey the judge’s in

‐8 No. 12

‐ 3378

structions. It is true that a verdict consistent with correct in

‐

structions can’t be assumed to have been based on a misun

‐ derstanding by the jury. But a false statement by counsel to

the jury, left uncorrected by the judge, or a cryptic answer to

a question submitted to the judge by the jury, can under

‐

mine the reliability of the verdict even if there is no actual

error in the instructions. Clarity is as important as accuracy

given the limitations of jurors’ comprehension. See, e.g.,

Skidmore v. Baltimore & Ohio R.R.

, 167 F.2d 54, 64–65 (2d Cir.

1948); Dennis J. Devine

, Jury Decision Making: The State of the

Science (2012); Bethany K. Dumas, “Jury Trials: Lay Jurors,

Pattern Jury Instructions, and Comprehension Issues,” 67

Tenn. L. Rev

. 701 (2000). But the bobbles we’ve mentioned

were harmless, given the collapse of the plaintiff’s primary

theory. That left, as the only alternative characterization of

the incident of the broken door, an innocent mistake by the

police. And a search resulting from an innocent mistake is

not unreasonable and so does not violate the Fourth

Amendment. Maryland v. Garrison

, 480 U.S. 79, 88–89 (1987).

We even doubt that what happened in this case should

be considered a “search.” Police forced open the door of a

residence by mistake, realized their mistake immediately (in

fact before the door opened—for remember that Beckman

tried to check the forward motion of the battering ram), and

left immediately. With the door open in front of him he

couldn’t have avoided seeing into the apartment without

closing his eyes (which would have been dangerous). But

having learned before looking that it was the wrong apart

‐

ment, he wasn’t using his eyes to search for anything. Seeing

can be searching, but isn’t always. Even before the door fell

open, Beckman knew there was nothing to search for in the

plaintiff’s apartment.No. 12

‐ 3378 9

This is not to suggest that entry is required for a search;

otherwise a wiretap wouldn’t be a search. Entry is neither a

necessary nor a sufficient condition of searching. But an ac

‐

cidental entry, or an accidental breaking of a door, which

exposes the interior, followed by a glance unrelated to any

interest in contraband or other evidence of crime, followed

by an immediate withdrawal, is not a search.

The error in equating seeing with searching is especially

patent with respect to the other defendant, officer Murphy.

It was he who climbing the stairs behind Beckman shouted

“wrong door.” When he reached the top of the stairs the

door to Balthazar’s apartment was open. Murphy saw the

interior of the apartment through the open door. He knew it

was the wrong apartment; it wasn’t his fault that the door

was open and that when you face an open door you see into

the interior. If you know you’re in the wrong place—a place

you’re not authorized to search or want to search—the un

‐

avoidable glance through the open door is not a search.

A FFIRMED

.