In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-2065

TRACY RUSSELL and JENNIFER DAVIS,

Plaintiffs-Appellants,

v.

BRYAN HARMS, individually and in his official capacity

as an officer of the Illinois State Police; J. DUSTIN KING,

individually and in his official capacity as an officer of

the Illinois State Police; and DOUG MAIER, individually

and in his official capacity as an officer of the White

County Sheriff’s Department,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 02 C 4160—J. Phil Gilbert, Judge.

____________

ARGUED NOVEMBER 3, 2004—DECIDED FEBRUARY 2, 2005

____________

Before FLAUM,Chief Judge, andEASTERBROOK andSYKES,

Circuit Judges.

FLAUM, Chief Judge. Tracy Russell and Jennifer Davis

filed this suit under 42 U.S.C. § 1983, alleging that Illinois State Police Officers Bryan Harms and J. Dustin King,

and White County Sheriff’s Department Officer Doug Maier

violated their rights under the Fourth Amendment to the
2 No. 04-2065

United States Constitution. The district court granted

summary judgment in favor of defendants, and Russell and

Davis appealed. Because we conclude that plaintiffs have

failed to establish a Fourth Amendment violation as a

matter of law, we affirm.

I. Background

In the summer of 2000, Officer Harms was contacted

by Martin Bayley, the vice president of a company that

owns several Circus Video movie rental stores. Bayley

informed Harms that he suspected that one of his employees was stealing merchandise from a Circus Video store

in Norris City, Illinois. Bayley advised that he believed that

the culprit was Tracy Russell, a manager who had unregulated access to the store’s VHS and video game inventory.

According to Bayley, he had discovered that Russell and her

roommate, Jennifer Davis, were selling hundreds of

videocassettes and Nintendo N64 video games via the

online auction site eBay under the username “TJ198.”

Harms and other members of the Illinois State Police

investigated Bayley’s claims by logging on to eBay, posing

as ordinary buyers, and bidding on a pack of 100 videotapes

offered for sale by TJ198. After winning the auction, the

officers were directed by TJ198 to send payment to Jennifer

Davis at a post office box in Norris City, Illinois. The

cashier’s check mailed to that address was returned

endorsed “Jennifer Davis.” The tapes shipped by TJ198

arrived in two boxes. Someone had written “For Circus” in

ink on the side of one of the boxes. Harms and Circus Video

director of operations Bob Polcalri examined the tapes,

finding that many were labeled with tags, bar codes, or

other stickers identical to those used by Circus Video.

It appeared that stickers of like shape and placement had

been peeled off several other tapes.

On August 10, 2000, Harms applied for a warrant to
No. 04-2065 3

search the house where both Russell and Davis live. The

complaint supporting the application for the warrant

detailed the investigation as described above, and stated

that, according to Bayley, Russell had no legal right to

possess the tapes or video games, and had not purchased

any movies from Circus Video’s corporate parent or its

suppliers. The complaint asserted that Russell and Davis

would need unlimited, confidential access to a computer

to manage the suspected high volume of transactions and to

stay in constant communication with online bidders. The

complaint alleged that this type of access would be available

only at the suspects’ house.

At 2:23 P.M. that day, a White County Circuit Court judge

issued a warrant authorizing the police to search plaintiffs’

home and seize the following:

Video tapes

Nintendo games

Written records of sales

Computer

Computer documents

Bank records

Email records relating to E-bay auctions

Financial records relating to E-bay auctions

(App. A23.)

Harms, King, Maier, and other officers executed the

warrant that afternoon. Russell and Davis were home at

the time of the search. The officers discovered boxes

containing hundreds of videocassettes and Nintendo games.

They also found CDs, DVDs, and non-Nintendo games and

equipment. Some were commingled in the boxes with the

VHS tapes and N64 games; others were located nearby. The

officers seized all of these media items plus a wide range of

documents found in the house.

Harms and King arrested Russell and took her to the

police station for questioning. They returned her to her
4 No. 04-2065

1 King took no part in arresting or questioning Russell or Davis.

2 Russell and Davis allege that they obtained the tapes legitimately at Circus Video store closing sales and from low-cost

retailers. Defendants do not dispute this.

house a few hours later. The officers subsequently arrested,

questioned, and then released Davis.1

 Defendants contend

that, while being questioned, Davis signed a written

consent form authorizing the police to search a storage unit

that she had rented in the nearby town of Carmi, Illinois.

The next day, the officers searched the unit and seized all

of its contents, including 135 boxes containing VHS tapes,

Nintendo games, non-Nintendo games, CDs, and a popcorn

machine.

On October 11, 2000, the White County State’s Attorney

filed informations charging Russell and Davis with felony

theft. On February 25, 2002, however, the prosecutor

dropped the charges after both suspects passed polygraph

tests supporting their assertion that they had obtained

the tapes lawfully, and had no part in the theft of any

merchandise from Circus Video.2

 Plaintiffs’ property was

returned to them in March of 2002.

On August 9, 2002, Russell and Davis filed this action

in the Southern District of Illinois under § 1983, alleging

that the officers had violated their Fourth Amendment

rights. Plaintiffs’ complaint also raised supplemental state

law claims of conversion, unreasonable intrusion upon

seclusion, and violations of the Illinois Constitution. After

discovery closed, the district court granted summary

judgment in favor of defendants on the Fourth Amendment

claim. The court held that the officers had not violated the

federal constitution as a matter of law, and in the alternative were protected by qualified immunity. It declined

to exercise supplemental jurisdiction and dismissed the

state-law claims without prejudice. Russell and Davis
No. 04-2065 5

appeal only the district court’s grant of summary judgment

in favor of defendants on the Fourth Amendment claim, and

do not challenge its dismissal of the state-law claims.

II. Discussion

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). “In evaluating the district court’s decision, we

‘must construe all facts in the light most favorable to

the non-moving party and draw all reasonable and justifiable inferences in favor of that party.’ ” Morfin v. City

of East Chicago, 349 F.3d 989, 996-97 (7th Cir. 2003)

(quoting Conley v. Village of Bedford Park, 215 F.3d 703,

708 (7th Cir. 2000)). We review the district court’s grant

of summary judgment de novo. Id. at 996. In assessing

plaintiffs’ § 1983 claim, we must determine at the threshold

whether the facts viewed in their favor establish a violation

of the Fourth Amendment. Saucier v. Katz, 533 U.S. 194,

201 (2001). Only if we answer that question in the affirmative do we address whether the officers are protected by

qualified immunity. Id.

Russell and Davis contend that the officers violated

their rights by: (i) searching plaintiffs’ house pursuant to a

warrant unsupported by probable cause; (ii) executing a

warrant that lacked particularity; (iii) exceeding the

scope of the search warrant; (iv) seizing plaintiffs unlawfully; and (v) searching Davis’s storage locker without

consent. We address these arguments in turn.
6 No. 04-2065

A. Probable Cause

The Fourth Amendment demands, among other things,

that “no Warrants shall issue, but upon probable cause.”

U.S. Const. amend. IV. Russell and Davis contend that the

warrant to search their house was not supported by probable cause, and that any reasonable officer would have

recognized this. Plaintiffs argue that the complaint in

support of the warrant cannot sustain a finding of probable cause because it does not allege that anything had

been stolen. They reason that because it is not unlawful per

se to possess or sell videotapes or games, the failure

to allege that a crime occurred is a missing link that fatally

undermines the warrant.

As an initial matter, plaintiffs mischaracterize the record.

The complaint seeks “evidence of the offense of Theft,” and

states that “Bayley advised that Russell has no legal right

to any Circus Video VHS movies or N64 games,” and had

“not purchased any VHS or N64” games from Circus Video’s

parent corporation or its suppliers. Thus, the complaint

clearly alleges that a crime has occurred. Plaintiffs’ strained

reading ignores the requirement that “affidavits for search

warrants . . . be tested and interpreted by magistrates and

courts in a commonsense and realistic fashion.” United

States v. Ventresca, 380 U.S. 102, 108 (1965).

Viewing the complaint as a whole, it clearly establishes

probable cause to search plaintiffs’ house. A complaint

supports a finding of probable cause when it “sets forth

sufficient evidence to induce a reasonably prudent person to

believe that a search will uncover evidence of a crime.”

United States v. Peck, 317 F.3d 754, 756 (7th Cir. 2003).

“[P]robable cause requires only a probability or chance

of criminal activity, not an actual showing of such activity.”

Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983).

The complaint in support of the warrant relied on infor-
No. 04-2065 7

mation from Bayley, a known, credible witness whose

allegations had been corroborated by the police. Bayley

advised that Russell’s position as store manager gave her

the opportunity to steal inventory from Circus Video

without being detected, and that she and her roommate

were selling hundreds of videotapes and Nintendo games

online. The police independently confirmed that Russell’s

roommate, Davis, was selling large quantities of videotapes

online, and that some of these tapes appeared to have been

obtained from Circus Video. The police had been advised by

a reliable witness that Russell had not purchased or legally

obtained Circus Video merchandise. They also knew that

Davis needed access to a computer to participate in the

online auctions. Given the high volume and frequency of

these sales, the officers were reasonable to believe that they

would find this computer in the suspects’ house. In short,

the complaint lays out evidence that would lead a prudent

person to believe that a search of plaintiffs’ home would

uncover evidence of theft. The fact that the officers may

have turned out to be wrong does not undermine this

conclusion. See Beauchamp v. City of Noblesville, Ind., 320

F.3d 733, 743 (7th Cir. 2003) (probable cause determination

is based upon only those facts known to the police when

they apply for the warrant).

B. Particularity

The Fourth Amendment also requires that warrants

“particularly describ[e] the . . . things to be seized.” U.S.

Const. amend. IV. Russell and Davis argued to the district

court that the warrant fell far short of this particularity

requirement because it did not catalogue the individual

movie and game titles allegedly stolen from Circus Video.

On appeal, plaintiffs contend that the warrant is insufficiently particular because it would not enable an officer

reading it to differentiate between those items subject to

the warrant and property lawfully possessed by Russell and
8 No. 04-2065

Davis. They also assert that it placed no meaningful limits

on the category of documents that might be seized.

None of these arguments are meritorious. “Although the

[F]ourth [A]mendment requires that a search warrant describe the objects of the search with reasonable specificity, it need not be elaborately detailed.” United States v.

Jones, 54 F.3d 1285, 1290 (7th Cir. 1995) (quoting United

States v. Somers, 950 F.2d 1279, 1285 (7th Cir. 1991)). “The

level of specificity must be such . . . that the officers executing the warrant are able to identify the things to be seized

with reasonable certainty.” Id. (quoting United States v.

Sleet, 54 F.3d 303, 307 n.1 (7th Cir. 1995)). “If detailed

particularity is impossible, generic language is permissible

if it particularizes the types of items to be seized.” United

States v. Hall, 142 F.3d 988, 996 (7th Cir. 1998). The police

had reason to believe that Russell and Davis had stolen

hundreds of videos and games. Under the circumstances, it

would have been impractical to list each title individually.

The warrant accommodated this reality by specifying that

“Video tapes” and “Nintendo games” be seized. And because

the universe of movies and games is so large, it was impractical to list the titles not suspected of being stolen. The

warrant gave the officers as much guidance as was feasible.

See United States v. Vitek Supply Corp., 144 F.3d 476, 481

(7th Cir. 1998) (warrant directing seizure of “tainted animal

feed” and “any and all misbranded drugs to include

clenbuterol and any of its derivatives” held sufficiently

particular “[b]ecause the warrant could not have better

informed the agents how to distinguish between legal and

illegal substances”).

Nor was the language so broad as to amount to a general

warrant to seize any document found on the premises, as

plaintiffs contend. The warrant authorized the seizure of

“Written records of sales[,] . . . Computer documents[,] Bank

records[,] Email records relating to E-bay auctions,” and

“Financial records relating to E-bay auctions.” Despite the
No. 04-2065 9

difficulties inherent in specifying the types of documents to

be seized, see Vitek, 144 F.3d at 481, each category named

in the warrant had a direct relationship to the suspected

crime. The warrant therefore satisfied the Fourth Amendment’s requirement of particularity.

C. The Scope of the Seizure

Russell and Davis also contend that the officers violated

their rights by exceeding the scope of the warrant. In

addition to those items specifically enumerated in the

warrant, the officers seized DVDs, CDs, blank videotapes,

and non-Nintendo brand video games. We conclude that this

seizure, although broad, was constitutionally permissible.

An officer executing a search warrant may seize: (i) items

named in the warrant; and (ii) evidence that, although not

described in the warrant, is subject to seizure under the

plain view doctrine. Hessel v. O’Hearn, 977 F.2d 299, 302

(7th Cir. 1992). The plain view doctrine applies “if the

officer has a legal right to be in the place from where he

sees the object subject to seizure[, ] a ‘lawful right of access

to the object itself,’ and if the object’s incriminating nature

is ‘immediately apparent.’ ” United States v. Cotnam, 88

F.3d 487, 495 (7th Cir. 1996) (quoting United States v.

Berkowitz, 927 F.2d 1376, 1388 (7th Cir. 1991)). The

incriminating nature of an object is “immediately apparent”

if, under the circumstances, the officer has “probable cause

to believe that the item is linked to criminal activity.”

United States v. Bruce, 109 F.3d 323, 328 (7th Cir. 1997). 

The media items not specified in the warrant were validly

seized pursuant to this doctrine. The warrant gave the

officers a legal right to enter plaintiffs’ house. See Horton v.

California, 496 U.S. 128, 135-36 (1990). Defendants discovered the property in question while searching those areas

where they were likely to find the items expressly named in

the warrant. Thus, the officers had a lawful right of access
10 No. 04-2065

3 Although this evidence is irrelevant to whether the warrant was

supported by probable cause, it bears directly upon whether the

officers were justified in seizing additional items found during the

course of the search.

to the property. And under the circumstances, defendants

had probable cause to believe that the items they seized

were evidence of a crime. At the time the officers applied for

the warrant, they had reasonable grounds to suspect that

Russell and Davis were stealing hundreds of VHS movies

and Nintendo N64 video games from Circus Video and

selling these items online. The officers were justified in

believing that incriminating evidence would be discovered

in plaintiffs’ house. Their suspicions were further supported

when, upon executing the warrant, they discovered hundreds of videocassettes and Nintendo games.3

 Some of the

CDs, DVDs, and non-Nintendo brand games were found in

the same boxes as the items specifically named in the

warrant. Others were found nearby. In light of the volume

of the suspected thefts, the location where these items were

found, and their similarity to the categories of items named

in the warrant, the officers reasonably believed that they

were evidence of theft.

Russell and Davis also contend that the officers blatantly

exceeded the scope of the warrant by seizing “every scrap of

paper” found in their house. Plaintiffs did not adequately

raise this argument below. They argued to the district court

that the warrant was insufficiently particular, and that a

vague warrant potentially would allow for the seizure of any

type of document. They did not assert, however, that the

officers had seized all documents in the house. Other

portions of plaintiffs’ summary judgment filings resolve any

doubt about what they argued below. Their memoranda

opposing summary judgment asserted that the officers had

exceeded the scope of the warrant by seizing “all DVDs, all

CDs, and all non-Nintendo equipment and games
No. 04-2065 11

(Playstation, Sega, Gameboy, etc.),” (R. 59 at 8; see also id.

at 17; R. 38 at 8, 17), but did not complain of the seizure of

records. Under the circumstances, plaintiffs did not sufficiently alert the district court of the factual basis of their

claim. “[A] party opposing a summary judgment motion

must inform the trial judge of the reasons, legal or factual,

why summary judgment should not be entered. If it does

not do so, and loses the motion, it cannot raise such reasons

on appeal.” Sanders v. Village of Dixmoor, 178 F.3d 869, 870

(7th Cir. 1999) (quoting Liberles v. County of Cook, 709 F.2d

1122, 1126 (7th Cir. 1983)). Accordingly, this argument is

forfeited.

D. Arrest of Plaintiffs

Plaintiffs assert that their arrests violated the Constitution. Their first argument in support of this claim is that

the officers entered their home pursuant to an invalid

search warrant. But as we have already explained, the

warrant was valid. Second, plaintiffs contend that an officer

may arrest a suspect in her home only while executing a

valid arrest warrant. Because the police held a search

warrant rather than an arrest warrant, plaintiffs claim

their arrest was unlawful.

In Payton v. New York, 445 U.S. 573 (1980), the Supreme

Court held that the Fourth Amendment “prohibits the

police from making a warrantless and nonconsensual entry

into a suspect’s home in order to make a routine felony

arrest.” Id. at 576. It went on to note that “an arrest

warrant founded on probable cause implicitly carries with

it the limited authority to enter a dwelling in which the

suspect lives when there is reason to believe the suspect

is within.” Id. at 603. Payton did not hold, however, that an

arrest warrant is the exclusive basis upon which police may

arrest a suspect in her home. The Court noted that an

arrest warrant would suffice in response to an argument
12 No. 04-2065

raised by the government that requiring a search warrant

under those circumstances would impose an unreasonable

burden upon law enforcement. Id. at 602. If anything,

Payton suggests that officers in possession of a search

warrant have gone above and beyond what the Fourth

Amendment requires before they may arrest a resident in

her home. Several of our fellow Circuits have read Payton

this way, finding a search warrant sufficient in these

circumstances. See United States v. Winchenbach, 197 F.3d

548, 553 (1st Cir. 1999) (police may arrest an individual in

her home without an arrest warrant “as long as they are

lawfully on the premises (by reason, say, of a search

warrant) and probable cause exists”); Mahlberg v. Mentzer,

968 F.2d 772, 775 (8th Cir. 1992); Jones v. City of Denver,

854 F.2d 1206, 1209 (10th Cir. 1988). See also Faulkner v.

State, 847 A.2d 1216, 1231 n.4 (Md. Ct. Spec. App. 2004)

(collecting cases); 3 Wayne R. LaFave, Search & Seizure: A

Treatise on the Fourth Amendment § 6.1(c) (3d ed. 1996).

We agree with the reasoning of these authorities and hold

that police executing a valid search warrant may arrest a

resident found within the permissible scope of that search

if the officers have probable cause to believe that the

resident has committed a crime. Cf. United States v. Price,

888 F.2d 1206, 1209 (7th Cir. 1989) (implicitly recognizing

this principle). Moreover, the evidence known to the police

when they applied for the warrant also gave them probable

cause to believe that both Russell and Davis were committing theft. Defendants therefore were justified in arresting plaintiffs when they found them at home at the time

of the search.

E. Consent to Search the Storage Unit

At summary judgment, the parties disputed whether

Davis had authorized the police to search her storage unit.

In support of their position, defendants produced a consent
No. 04-2065 13

form purporting to have been signed by Davis on August 10,

2000, authorizing Harms and King to search the unit. Prior

to the close of discovery, Davis submitted an affidavit

alleging that “Defendant Harms did not ask me for consent to search the storage unit I rented at Ustore-ULock.”

The signature on the affidavit produced by Davis appears

similar to the signature on the consent form. After discovery

had closed, Davis produced a supplemental affidavit

alleging that she had not signed the consent form and had

never authorized the police, either orally or in writing, to

search her storage unit. The district court refused to

consider the late-filed affidavit and held that the remaining

evidence established that Davis had consented to the search

as a matter of law.

Plaintiffs challenge the district court’s refusal to consider

the late affidavit, asserting that it reveals a genuine issue

of fact as to whether Davis consented to the search. They

contend that, even absent the late affidavit, there is a jury

question regarding Davis’s consent. They argue, moreover,

that any consent given by Davis was tainted by her illegal

arrest.

We review the district court’s refusal to consider an

affidavit in opposition to a motion for summary judgment

for abuse of discretion. Kalis v. Colgate-Palmolive Co., 231

F.3d 1049, 1055 (7th Cir. 2000). “Under this standard,

‘[d]ecisions that are reasonable, i.e., not arbitrary, will not

be questioned.’ ” Id. (quoting Adusumilli v. City of Chicago,

164 F.3d 353, 359 (7th Cir. 1998)). By the time discovery

had closed, plaintiffs had already filed two memoranda in

opposition to defendants’ motions for summary judgment.

Davis’s late-filed affidavit does not contain newly discovered

evidence; it purports to be based on facts known to plaintiff

from the outset of this litigation, and its assertions easily

could have been included in her timely affidavit. Because it

was filed after the close of discovery, moreover, defendants

had no opportunity to depose Davis on its contents. The
14 No. 04-2065

4 Plaintiffs’ appellate brief vaguely mentions that a wide variety

of items was seized from Davis’s storage locker. Davis does not

develop an argument that the officers exceeded the scope of any

consent she may have given them. Accordingly, we will not

consider this issue. See Campania Management Co. v. Rooks, Pitts

& Poust, 290 F.3d 843, 852 n.6 (7th Cir. 2002).

(continued...)

district court’s refusal to consider this evidence was not

unreasonable. To the contrary, “a party’s failure to comply

with summary judgment evidentiary requirements is

traditionally remedied . . . by excluding the non-conforming

submission . . . and then determining whether [the remaining facts] entitle the moving party to judgment as a matter

of law.” Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th

Cir. 2003).

We agree with the district court that the remaining

evidence establishes as a matter of law that Davis consented to the search. The signed consent form is highly

probative evidence that Davis authorized defendants to

search her storage unit. Faced with this evidence, Davis

presented a tentatively-worded affidavit that fails to refute the conclusion that she consented to the search. The

affidavit, even if true, establishes only that Harms did not

ask for Davis’s consent. But the record makes clear that any

one of a handful of officers could have requested that Davis

sign the form. Davis’s filing of the second affidavit—with its

bolder assertions—borders on a tacit concession that the

first affidavit was insufficient to create an issue of fact. The

timely-filed evidence that is properly a part of this record

leads to only one conclusion—that Davis signed the form,

authorizing the officers to search the storage unit. Finally,

because the officers lawfully arrested Davis, her argument

that her consent was tainted by the arrest is without merit.

The defendants committed no Fourth Amendment violation

by searching her storage locker.4
No. 04-2065 15

4 (...continued)

USCA-02-C-0072—2-2-05

III. Conclusion

For the reasons stated herein, we find that defendants did

not violate plaintiffs’ rights under the Fourth Amendment.

Accordingly, we AFFIRM the district court’s grant of summary judgment.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit