In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1791

MICHELLE WHEELER,

Plaintiff-Appellant,

v.

RONALD LAWSON, individually and

in his official capacity as an

officer of the Starke County

Sheriff’s Department, ROBERT SIMS,

in his official capacity as

Sheriff of Starke County, and

STARKE COUNTY COMMISSIONERS,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 05 C 421—Robert L. Miller, Jr., Chief Judge.

____________

ARGUED MAY 15, 2008—DECIDED AUGUST 21, 2008

____________

Before RIPPLE, KANNE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. Michelle Wheeler filed this action

under 42 U.S.C. § 1983 against Ronald Lawson, individu-
2 No. 07-1791

The district court had jurisdiction under 28 U.S.C. § 1331. 1

Our jurisdiction is premised on 28 U.S.C. § 1291. 2

ally and in his official capacity as an officer of the Starke

County Sheriff’s Department. Ms. Wheeler alleges that

Detective Lawson violated the Fourth Amendment, as

made applicable to the States by the Fourteenth Amendment, by unlawfully arresting her without probable

cause for maintaining a common nuisance. Detective

Lawson filed a motion for summary judgment, which the

district court granted. Ms. Wheeler timely appeals. 1 2

For the reasons set forth in this opinion, we affirm the

judgment of the district court.

I

BACKGROUND

A.

In April 2004, Ms. Wheeler resided with her three

children in a home in Knox, Indiana. During this time, she

was separated from her husband, Charles Darren Wheeler

(“Darren”), who lived fifteen to twenty minutes away;

Darren visited Ms. Wheeler and the children about once

a week. The residence, which was owned jointly by Ms.

Wheeler and Darren, had an attached two-car garage,

which is not at issue in this case. It also had a separate

detached garage (or the “garage”) that was located about

500 to 600 feet from the residence. Ms. Wheeler’s arrest

stems from a fire that occurred on April 6, 2004, in the

detached garage.
No. 07-1791 3

The two-car garage was outfitted with a video surveillance camera, which was focused on the door of the

detached garage and part of the backyard area. The record

is silent as to when the camera was installed. The camera

allowed an occupant to monitor the area from a video

screen inside the residence. This camera, however, would

not allow someone to monitor activity inside the garage.

The record does not disclose the size of the garage, although it does indicate that the garage had more than

one room. At her deposition in this case, Ms. Wheeler

testified that the garage contained tools, a go-cart, bicycles,

a lawnmower, patio equipment, clothing and other items.

The garage also contained propane tanks for a gas grill,

fuel for the go-cart, paint, starter fluid and carburetor

fluid. At her deposition, Ms. Wheeler further testified that

she went to the garage about once a week and that her

children used the garage with more frequency to access

the bicycles and go-cart.

On April 5, Darren came to Ms. Wheeler’s residence with

Mark Dillard, Ms. Wheeler’s cousin. The men told Ms.

Wheeler that they were going to work on Mark’s van in the

garage. Ms. Wheeler did not go into the garage that day.

She only had contact with Darren, who came inside the

house to make himself lunch and dinner, although Darren

ate by himself both times. The men worked in the garage

from 10:00 a.m. to 8:00 p.m. At 8:00 p.m., Darren

informed Ms. Wheeler that he was leaving and that Mark

was going to continue working on the van inside the

garage. Shortly after Darren left, Ms. Wheeler called him

to request that he buy her a pack of cigarettes.
4 No. 07-1791

Darren returned shortly thereafter with the requested

cigarettes, and he ran into Rusty Dillard in the driveway of

Ms. Wheeler’s residence. Rusty is Mark’s brother and

Ms. Wheeler’s cousin. Darren gave the cigarettes to Ms.

Wheeler and left. Unbeknownst to Ms. Wheeler, Rusty

Dillard joined Mark Dillard inside the garage.

Ms. Wheeler went to bed at approximately 10:30 or 11:00

p.m.; she testified that she had assumed that Mark had left

the garage by this time. At about 1:00 a.m., Ms. Wheeler

was awakened by a loud explosion that she subsequently

described as sounding like “dynamite.” R.33, Ex. A at 58.

From her bedroom window, she saw smoke rolling out

from the back of the garage. Ms. Wheeler called 911. Next,

she called her husband, Darren, and her cousin, Mark

Dillard, to inform them of the fire. Ms. Wheeler learned

(for the first time) from Mark that Rusty had been in the

garage that evening.

Detective Ronald Lawson of the Starke County Sheriff’s

Department arrived on the scene shortly thereafter. Two

officers on the scene informed Detective Lawson that there

was a body in the garage and that Ms. Wheeler had a video

system set up for the garage area. Inside the garage,

Detective Lawson noticed that the body was near the

point of origin of the fire. In that area, there was a furnace,

two propane tanks that were ruptured, thirty cans of

starter fluid and lithium batteries that had been broken

apart. Someone had used a can-opener to open the bottom of the starter fluid cans. Detective Lawson also

found a clear plastic bag with a powdery substance that

later was determined to be methamphetamine; autopsy
No. 07-1791 5

Throughout the brief investigation, Detective Lawson was 3

assisted by Detective Daniel Anderson, also of the Starke County

Sheriff’s Department and a specialist in drug and methamphetamine cases. Detectives Lawson and Anderson also received

assistance in processing the scene from Trooper Thomas Quinn

of the Indiana State Police Clandestine Laboratory Team.

tests performed on Rusty Dillard revealed the presence

of methamphetamine in his system.3

Detective Lawson noticed that the valves of the

propane tanks had been altered, and, based on his prior

experience, Detective Lawson knew that these tanks and

the type of connection on them often are used in methamphetamine labs. The previous year, Detective Lawson had

investigated a death caused during the explosion of a

methamphetamine lab, and he had noted that the scene

at Ms. Wheeler’s garage had many of the same characteristics. For example, the propane cylinders contained ammonia residue commonly found in the form of anhydrous

ammonia (liquid) farm fertilizer, and the debris on the

floor near Rusty Dillard’s body had a strong odor of

ammonia. Inside the furnace, the police found battery

casings and aluminum foil. Batteries are commonly

broken apart to obtain lithium metal to assist in the

methamphetamine manufacturing process; aluminum foil

is commonly used to smoke methamphetamine. The

Detective also searched the white Ford pick-up truck in

Ms. Wheeler’s driveway. The truck, which had been

driven by Rusty Dillard, contained a full can of starter

fluid.
6 No. 07-1791

A statement attached to the probable cause affidavit noted 4

that a batch of one ounce of methamphetamine requires the use

of six to eight cans of starter fluid (ether) and about one quart

of liquid anhydrous ammonia. The affidavit noted that, inside

Ms. Wheeler’s garage, the officers found two cylinders with a

(continued...)

Detective Lawson had only two brief talks with Ms.

Wheeler, immediately before and immediately after the

fire was extinguished. During these short conversations,

Ms. Wheeler told the Detective that she did not know the

cause of the fire, that she was not aware that Rusty

Dillard had been inside the garage and that she was not

aware of any methamphetamine production taking place

on her property. Ms. Wheeler also informed Detective

Lawson that she had called her husband to inform him

of the fire; she mentioned to the Detective that she and

Darren were separated. Detective Lawson otherwise did

not interview Ms. Wheeler about the fire, the methamphetamine or the methamphetamine-related items found

inside the garage. Prior to arresting her, Detective Lawson

did not ask Ms. Wheeler whether she had any personal

items in the garage, nor did he question her about her

use of the garage. Detective Lawson spoke only briefly

with Darren Wheeler on the night of the incident. Neither

he nor any other officer conducted any follow-up interviews with Darren. Detective Lawson never interviewed

Mark Dillard, who was the last individual to see Rusty

Dillard alive inside the garage.

The Detective subsequently signed an affidavit of

probable cause; an information was filed on June 9 4
No. 07-1791 7

(...continued) 4

capacity of six gallons of liquid anhydrous ammonia and over

30 cans of starter fluid. The affidavit stated: “Items in the

amounts found show several batches of illegal [m]ethamphetamine[] have been manufactured at the Wheeler residence

before the fire and explosion.” R.33, Ex. J at 4.

Ms. Wheeler’s section 1983 action therefore is not barred 5

under Heck v. Humphrey, 512 U.S. 477 (1994).

Ms. Wheeler’s complaint also named as defendants Robert 6

Sims, in his capacity as Sheriff of Starke County, and the County

Commissioners of Starke County, Indiana. The district court

granted summary judgment with respect to these defendants.

The court also held that Ms. Wheeler abandoned her claims

based on alleged violations of the Fifth and Fourteenth Amendments and could not maintain an action for a violation of Article

(continued...)

charging Ms. Wheeler with maintaining a common nuisance, which is prohibited by Indiana Code § 35-48-4-13.

About two weeks later, on June 22, Detective Lawson

arrested her on the charge of maintaining a common

nuisance. In November 2004, the charge against her was

dismissed on the motion of the Starke County Prosecutor’s

Office.5

B.

Ms. Wheeler filed this action under 42 U.S.C. § 1983

against Detective Lawson, individually and in his official

capacity as an officer of Starke County Sheriff’s Department. Ms. Wheeler alleges that Officer Lawson violated

6
8 No. 07-1791

(...continued) 6

I, § 11 of the Indiana Constitution. Ms. Wheeler does not

appeal any of these determinations.

the Fourth Amendment, as made applicable to the

States by the Fourteenth Amendment, by unlawfully

arresting her. Officer Lawson filed a motion for summary

judgment, which the district court granted. The court

concluded that Detective Lawson had probable cause to

arrest Ms. Wheeler for maintaining a common nuisance

under Indiana law. Ms. Wheeler timely appeals the judgment of the district court.

II

DISCUSSION

A. Standard of Review

This court reviews de novo a grant of summary judgment. Hurst-Rosche Eng’rs, Inc. v. Commercial Union Credit

Ins. Co., 51 F.3d 1336, 1341 (7th Cir. 1995). All facts and

reasonable inferences must be construed in favor of the

non-moving party, here, Ms. Wheeler. Magin v. Monsanto

Co., 420 F.3d 679, 686 (7th Cir. 2005). We do not evaluate

the weight of the evidence, judge the credibility of witnesses or determine the ultimate truth of the matter; rather,

we determine whether there exists a genuine issue of

triable fact. Anderson v. Liberty Lobby, 477 U.S. 242, 249-50

(1986). Summary judgment is proper if “the pleadings,

depositions, answers to interrogatories, and admissions
No. 07-1791 9

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

there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of

law.” Magin, 420 F.3d at 686 (citing Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The

moving party bears the initial burden of demonstrating

that these requirements have been met; it may discharge

this responsibility by showing “that there is an absence of

evidence to support the non-moving party’s case.” Celotex,

477 U.S. at 323. To overcome a motion for summary

judgment, the non-moving party must come forward

with specific facts demonstrating that there is a genuine

issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). The existence of a mere

scintilla of evidence, however, is insufficient to fulfill

this requirement. Anderson, 477 U.S. at 251-52. The nonmoving party must show that there is evidence upon

which a jury reasonably could find for the plaintiff. Id.

B. Ms. Wheeler’s Unlawful Arrest Claim

Probable cause is an absolute defense to a claim of

wrongful arrest asserted under section 1983 against police

officers. Wagner v. Wash. County, 493 F.3d 833, 836 (7th Cir.

2007) (per curiam); Potts v. City of Lafayette, 121 F.3d 1106,

1113 (7th Cir. 1997). A police officer has probable cause to

arrest “if, at the time of the arrest, the ‘facts and circumstances within the officer’s knowledge . . . are sufficient

to warrant a prudent person, or one of reasonable

caution, in believing, in the circumstances shown, that the
10 No. 07-1791

suspect has committed, is committing, or is about to

commit an offense.’ ” Wagner, 493 F.3d at 836 (quoting

Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)) (alteration

in original); see also Beck v. Ohio, 379 U.S. 89, 90 (1964);

Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir.

1993). Probable cause, therefore, “does not require evidence sufficient to support a conviction, nor even evidence

demonstrating that it is more likely than not that the

suspect committed a crime.” United States v. Sawyer, 224

F.3d 675, 679 (7th Cir. 2000) (explaining that there must be

a “probability or substantial chance of criminal activity

on the suspect’s part”). In determining whether an officer

had probable cause, the court steps into the shoes of a

reasonable person in the position of the officer. Mustafa v.

City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006). Consequently, we “evaluate[] probable cause ‘not on the facts as

an omniscient observer would perceive them,’ but rathe r

‘as they would have appeared to a reasonable person in

the position of the arresting officer.’ ” Id. (quoting Kelley v.

Myler, 149 F.3d 641, 646 (7th Cir. 2000)). The probable

cause determination must be made by a jury “if there is

room for a difference of opinion concerning the facts or the

reasonable inferences to be drawn from them.” Maxwell,

998 F.2d at 434 (explaining that, “[i]f the underlying facts

supporting the probable cause determination are not in

dispute, the court can decide whether probable cause

exists”).

Detective Lawson submits that he had probable cause

to arrest Ms. Wheeler for maintaining a common nuisance.

The Indiana Code defines the offense of “maintaining

a common nuisance” as follows:
No. 07-1791 11

A person who knowingly or intentionally maintains a

building, structure, vehicle, or other place that is used

one (1) or more times:

(1) by persons to unlawfully use controlled substances; or

(2) for unlawfully:

(A) manufacturing;

(B) keeping;

(C) offering for sale;

(D) selling;

(E) delivering; or

(F) financing the delivery of;

controlled substances, or items of drug paraphernalia as described in IC 35-48-4-8.5;

commits maintaining a common nuisance, a Class D

felony.

Ind. Code § 35-48-4-13(b). The knowledge element of this

crime may be established by showing that the defendant

had constructive possession of the drugs and other contraband. Bradley v. State, 765 N.E.2d 204, 212 (Ind. Ct. App.

2002); see also Jones v. State, 807 N.E.2d 58, 65 (Ind. Ct. App.

2004). To establish constructive possession, the defendant

must have had (1) the intent to maintain dominion and

control over the drugs and (2) the capability to maintain

dominion and control over the drugs. Jones, 807 N.E.2d at

65; Chandler v. State, 816 N.E.2d 464, 467-68 (Ind. Ct. App.

2004). Indiana courts have defined “control” as “the
12 No. 07-1791

Both parties contend (and the district court assumed) that the 7

crime of maintaining a common nuisance requires the State to

prove a continuous or recurring violation. As support for this

proposition, the parties rely on Wells v. State, a 1976 case that

interpreted the term “maintaining” to require a “showing of

(continued...)

power, by way of legal authority, or in a practical sense, to

control the place where, or the items in which, the substance is found.” Jones, 807 N.E.2d at 65 (internal quotation

marks and citation omitted). To prove the intent element,

the Indiana courts have held that

the State must demonstrate the defendant’s knowledge

of the presence of the contraband. This knowledge

may be inferred from either the exclusive dominion

and control over the premises containing the contraband or, if the control is non-exclusive, evidence of

additional circumstances pointing to the defendant’s

knowledge of the presence of the contraband.

Id. (citation omitted). Under Indiana law, therefore, when

possession is non-exclusive, constructive possession may

be proved with the assistance of additional circumstances

corroborating the defendant’s knowledge of the contraband. These additional circumstances include: (1) incriminating statements given by the defendant; (2) attempted

flight or furtive gestures; (3) a drug manufacturing setting;

(4) proximity of the defendant to the contraband;

(5) contraband in plain view; and (6) location of the

contraband in close proximity to items owned by the

defendant. Id.; see also Bradley, 765 N.E.2d at 212. 7
No. 07-1791 13

(...continued) 7

more than an isolated or casual instance of the prohibited

activity.” 351 N.E.2d 43, 46 (Ind. Ct. App. 1976). After Wells,

Indiana courts continued to require such a showing. See, e.g.,

Bryant v. State, 660 N.E.2d 290, 302 (Ind. 1995). In 1998, however,

the Indiana General Assembly amended Indiana Code § 35-48-4-

13(b) to add the phrase “one (1) or more times.” 1998 Legis. Serv.

P.L. 31-1998. Compare Ind. Code § 35-48-4-13(b) (2008), with Ind.

Code § 35-48-4-13(b) (1997). As a result, the statute currently

states: “A person who knowingly or intentionally maintains a

building, structure, vehicle, or other place that is used one (1) or

more times.” Ind. Code § 35-48-4-13(b). This amendment

abrogates the holding of Wells, which required proof of more

than an “isolated or casual instance of the prohibited activity.”

Wells, 351 N.E.2d at 46. Indeed, the Indiana Court of Appeals

took notice of this amendment in Hale v. State, 785 N.E.2d 641,

644 (Ind. Ct. App. 2003). The crime of maintaining a common

nuisance, accordingly, no longer requires a showing of more

than an isolated or casual instance of the prohibited activity.

These circumstances are probative and corroborative of

actual knowledge because their presence increases the

likelihood that the defendant observed or was aware of

the contraband. Concomitantly, the presence of these

corroborating circumstances decreases the likelihood that

the concept of constructive knowledge will be stretched

so broadly that it will ensnare innocent bystanders. See

Godar v. State, 643 N.E.2d 12, 15 (Ind. Ct. App. 1994) (“Mere

presence where drugs are located or association with

persons who possess drugs is not alone sufficient to

support a finding of constructive possession.”); Snyder

v. State, 460 N.E.2d 522, 525 (Ind. Ct. App. 1984) (recogniz-
14 No. 07-1791

ing the importance of “link[ing] the accused with the

substance in question”); Watt v. State, 412 N.E.2d 90, 98

(Ind. Ct. App. 1980) (“[M]ere presence in the place [where

the contraband is found] is not sufficient proof of intent to

possess the substance.” (internal quotation marks omitted)); see also United States v. DiNovo, 523 F.2d 197, 201 (7th

Cir. 1975). The Indiana courts have recognized the doctrine’s breadth, and, at least in the sufficiency of the

evidence context, they have exercised vigilance to maintain the doctrine within its proper and intended scope.

See, e.g., Chandler, 816 N.E.2d at 468 (reversing a jury

verdict because “the contraband was found in an undisclosed location in a middle bedroom and in the living

room” and “not close to or intermingled with items” that

the defendant owned); Smith v. State, 787 N.E.2d 458, 461

(Ind. Ct. App. 2003) (overturning a jury verdict because

there was an absence of evidence that the defendant was

in close “proximity to the contraband” or that the contraband was found in the defendant’s “plain view”). With

these principles in mind, we turn to the parties’ submissions.

Detective Lawson asserts that two of the additional

circumstances corroborating a defendant’s knowledge—“a

drug manufacturing setting” and “contraband [] in close

proximity to items owned by the defendant”—are present

in this case. He contends that Ms. Wheeler visited the

garage on a weekly basis and that the contraband in the

garage was found within close proximity to items belonging to her. The Detective further explains that numerous

items used to manufacture methamphetamine and methamphetamine itself were found inside the garage, in-
No. 07-1791 15

dicating that her personal items were in a drug manufacturing setting. These circumstances, according to the

Detective, along with the security camera that was focused

on the entrance of the garage, were sufficient to give him

probable cause to arrest Ms. Wheeler for maintaining

a common nuisance.

We believe that, under the particular facts of this case,

these additional circumstances did not create probable

cause to believe that Ms. Wheeler knowingly or intentionally had maintained a common nuisance. As a preliminary

matter, we must observe that the record suggests that

the investigation about Ms. Wheeler’s conduct was undertaken in a rather nonchalant manner. Aside from short

discussions with her immediately before and immediately

after the fire was extinguished, Detective Lawson did not

interview Ms. Wheeler about the fire or about the methamphetamine and methamphetamine-related items found

inside the garage. During these two brief conversations,

Detective Lawson learned only that Ms. Wheeler did not

know the cause of the fire, that she was not aware that

Rusty Dillard had been inside the garage and that she was

not aware of any methamphetamine production taking

place on her property. Detective Lawson did not ask

Ms. Wheeler whether she had any personal items in the

garage, and he did not question her about the frequency

with which she used the garage. Detective Lawson also

spoke only briefly with Darren Wheeler on the night of the

incident, and neither the Detective nor any other officer

conducted any follow-up interviews with him, despite

his obvious and more prominent use of the garage. Even

more notable is Detective Lawson’s failure to interview
16 No. 07-1791

Mark Dillard, who was the last individual to see Rusty

Dillard alive inside the garage.

These considerations are particularly relevant because,

as we have noted, the probable cause inquiry turns on

the evidence and circumstances known to the officer at

the time of arrest. “Any evidence . . . that came to light after

the arrest,” we have explained, “is not relevant to the

probable cause inquiry.” Maltby v. Winston, 36 F.3d 548, 557

(7th Cir. 1994). Before the district court and on appeal,

Detective Lawson asserts that Ms. Wheeler stored numerous personal items, including bicycles, a lawnmower,

patio equipment and clothing, inside the garage and that

she used the garage about once a week. In support of this

factual assertion, however, Detective Lawson relies only

upon Ms. Wheeler’s deposition that was taken for purposes of this case. Critically, nothing in Detective Lawson’s

deposition or in the reports that were created in the course

of the investigation indicates that, at the time that he

arrested Ms. Wheeler, he knew that she kept personal

items in the garage or that she used the garage once a

week. This absence of evidence thus eliminates one of

the corroborating circumstances upon which Detective

Lawson relies.

The second corroborating factor to which Detective

Lawson points is that there was evidence of a drug manufacturing setting. A drug manufacturing setting, however, is probative and corroborative of a defendant’s

knowledge of contraband only to the extent that the
No. 07-1791 17

See, e.g., Floyd v. State, 791 N.E.2d 206, 210-11 (Ind. Ct. App.

8

2003) (explaining that “the officers found many of the items

commonly used in manufacturing methamphetamine scattered

around the kitchen and living room in plain view”); Jones, 807

N.E.2d at 65 (noting that authorities found digital scales, plastic

baggies, ties and over forty-three grams of crack cocaine and

that many of these items were found in multiple rooms of the

house).

defendant had been around the manufacturing setting.8

Detective Lawson, as we already have noted, had no

evidence regarding Ms. Wheeler’s use of the garage and no

evidence from which he could infer reasonably that

Ms. Wheeler had entered the garage recently.

In any event, even if there had been such evidence, we

believe that this factor alone would have been insufficient

to give Detective Lawson probable cause to arrest Ms.

Wheeler. Although the property on which the contraband

was found was owned jointly, Detective Lawson knew that

Ms. Wheeler and her husband were living apart at the time

that the fire occurred. From his discussion with Darren,

Detective Lawson also knew that the contraband in the

garage was found after Ms. Wheeler’s husband had spent

the entire day in the garage with Mark Dillard. At no

point in the day did Ms. Wheeler enter the garage, and, as

far as she was aware, the men were performing work on

Mark Dillard’s van. Both Ms. Wheeler and Darren told

Detective Lawson that Ms. Wheeler was unaware that

Rusty Dillard had arrived at the garage that evening and

had remained inside after Darren and Mark Dillard left.

Only after the explosion, when Ms. Wheeler called her
18 No. 07-1791

husband and Mark to inform them of the fire, did she learn

that Rusty Dillard had been in the garage.

All of the methamphetamine-related items found in the

garage, moreover, are common items that would not

raise a layperson’s suspicion about drug production. The

presence of these items might have appeared particularly

commonplace because Ms. Wheeler’s husband performed

mechanical work on the side to supplement his carpentry

job. With respect to the other items stored in the garage,

there is no indication that, on days prior to the time of the

fire, they were used in the manufacturing of methamphetamine. Although Detective Lawson found propane tanks

and starter fluid, he also found a grill and a go-cart.

Notably, there is no suggestion in the record that Detective

Lawson knew that, prior to April 6, these common items

had been kept together or arranged in a manner resembling

a methamphetamine manufacturing setting. The record

contains no evidence that, on the days prior to the fire

when Ms. Wheeler may have visited the garage, the items

had been kept in such a manner. In any event, nothing

indicated to Detective Lawson that Ms. Wheeler had

entered the garage while those items were so arranged.

More fundamentally, the record does not indicate how

long these items had been in the garage. Although a clear

bag containing methamphetamine was found near

Rusty Dillard’s body, Detective Lawson did not find

anything indicating that this methamphetamine had been

there prior to Rusty’s arrival that evening. Indeed, the

record supports an inference to the contrary—namely, that

Rusty Dillard had produced the methamphetamine
No. 07-1791 19

himself that night. The pick-up truck that Rusty drove

contained starter fluid, and laboratory testing further

revealed that, at the time of his death, Rusty had methamphetamine in his system.

Finally, Detective Lawson attached great significance

to the security camera that had been installed on the

garage. The presence of the security camera, standing

alone, however, was insufficient to provide probable

cause to arrest Ms. Wheeler for maintaining a common

nuisance. The garage contained many valuable items,

including a go-cart and a grill, and, therefore, the presence

of the security camera does not corroborate the notion

that Ms. Wheeler knew that Rusty Dillard or anyone else

had been manufacturing methamphetamine inside the

garage.

There is no suggestion in the record, nor does Detective

Lawson contend, that the other factors that are corroborative of knowledge were present here. Ms. Wheeler called

911 immediately after she was awakened by the explosion,

and she did not make any incriminating statements; nor

does Detective Lawson indicate that there was anything

suspicious about Ms. Wheeler’s answers to his questioning

at the crime scene. In short, Detective Lawson did not

have any evidence tying Ms. Wheeler to the methamphetamine production other than her familial bond (cousin) to

the individual, Rusty Dillard, who was involved in that

illicit activity, and the fact that she resided on the property.

There is no evidence in the record that Detective Lawson

knew, at the time that he arrested Ms. Wheeler, that she

either used the garage with any frequency or that she
20 No. 07-1791

Detective Lawson contends that he also had probable cause to 9

arrest Ms. Wheeler for constructive possession of methamphetamine or, alternatively, with possession of chemical precursors

to methamphetamine, which is prohibited by Indiana Code § 35-

48-4-14.5(c). Arrest for the former would have required that the

Detective have probable cause to believe that Ms. Wheeler

had constructive knowledge of the methamphetamine found

in the garage, a premise that we have rejected. Arrest for

possession of chemical precursors to methamphetamine requires

proof that the defendant possessed those precursors with the

intent to manufacture methamphetamine. Id. The record does

not disclose any evidence from which the Detective could have

inferred that Ms. Wheeler intended to manufacture methamphetamine.

had personal items stored in the garage. Furthermore,

Detective Lawson could not infer reasonably that the

methamphetamine-related items had been arranged in a

manner resembling a methamphetamine manufacturing

setting prior to the date of the fire. Consequently, we

conclude that, as a matter of law, Detective Lawson did

not have probable cause to arrest Ms. Wheeler.9

We shall now turn to the issue of qualified immunity.

C. Qualified Immunity

The doctrine of qualified immunity shields from liability

public officials who perform discretionary duties, Belcher

v. Norton, 497 F.3d 742, 749 (7th Cir. 2007), and it thus

protects police officers “who act in ways they reasonably

believe to be lawful.” Anderson v. Creighton, 483 U.S. 635,
No. 07-1791 21

The Supreme Court recently granted certiorari to consider 10

whether the two-step approach required under Saucier v. Katz,

533 U.S. 194, 201 (2001), should be overruled. Pearson v. Callahan,

128 S. Ct. 1702, 1702-03 (2008) (directing the parties to “brief

and argue the following question: ‘Whether the Court’s decision

in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?’ ”).

638-39 (1987). The defense provides “ample room for

mistaken judgments” and protects all but the “plainly

incompetent and those who knowingly violate the law.”

Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting Malley v.

Briggs, 475 U.S. 335, 343 (1986)); Clash v. Beatty, 77 F.3d

1045, 1048 (7th Cir. 1996). Qualified immunity protects

those officers who make a reasonable error in determining

whether there is probable cause to arrest an individual.

Anderson, 483 U.S. at 643; Belcher v. Norton, 497 F.3d 742,

749 (7th Cir. 2007). The Supreme Court of the United States

has articulated a two-part test for qualified immunity:

(1) whether the facts, taken in the light most favorable to

the plaintiff, show that the defendant violated a constitutional right; and (2) whether that constitutional right

was clearly established at the time of the alleged violation.

Saucier v. Katz, 533 U.S. 194, 201 (2001).10

Although qualified immunity is an affirmative defense,

Sparing v. Vill. of Olympia Fields, 266 F.3d 684, 688 (7th Cir.

2001), once the defense is raised, it becomes the plaintiff’s

burden to defeat it, Mannoia v. Farrow, 476 F.3d 453, 457

(7th Cir. 2007); Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir.

1999). A plaintiff may defeat a qualified immunity defense

by “point[ing] to a clearly analogous case establishing a

right to be free from the specific conduct at issue” or by
22 No. 07-1791

showing that “the conduct [at issue] is so egregious that no

reasonable person could have believed that it would not

violate clearly established rights.” Smith v. City of Chicago,

242 F.3d 737, 742 (7th Cir. 2001). Because we have determined that Detective Lawson arrested Ms. Wheeler

without probable cause, thus violating her Fourth Amendment right to be free from unlawful arrest, we shall

focus on the second prong of the Saucier test.

Ms. Wheeler contends that Detective Lawson is not

entitled to qualified immunity, but she does not point to

case law that would have given fair warning to a reasonable officer in the Detective’s position that his “conduct

was unlawful in the situation he confronted.” Saucier, 533

U.S. at 202; see also Hope v. Pelzer, 536 U.S. 730, 740-41 (2002)

(noting that “officials can still be on notice that their

conduct violates established law even in novel factual

circumstances,” but explaining that “the state of the law”

nevertheless must provide “fair warning” that their

conduct was unconstitutional). Instead, Ms. Wheeler

contends that no police officer would have believed,

reasonably although mistakenly, that there was probable

cause to arrest her for maintaining a common nuisance.

We believe that the probable cause determination here

was sufficiently close that an officer reasonably could

have believed that probable cause existed, even if that

belief ultimately was mistaken. See Anderson v. Creighton,

483 U.S. 635, 638-39 (1987) (“[I]t is inevitable that law

enforcement officials will in some cases reasonably but

mistakenly conclude that probable cause is present.”);

Sorenberger v. City of Knoxville, Ill., 434 F.3d 1006, 1014 (7th
No. 07-1791 23

Cir. 2006) (“[W]e recognize that, even if probable cause is

lacking with respect to an arrest, the arresting officer is

entitled to immunity so long as his belief that he had

probable cause was objectively reasonable.”); Kijonka v.

Seitzinger, 363 F.3d 645, 648 (7th Cir. 2004) (noting that,

after determining that probable cause does not exist, “the

question for us is whether there was any reasonable

basis to suppose there was probable cause, as that is the

test for qualified immunity”).

Detective Lawson found a significant number of items

used to produce methamphetamine in Ms. Wheeler’s

garage. After the fire, Ms. Wheeler’s cousin, Rusty Dillard,

was discovered inside the garage along with a bag containing methamphetamine, and the Detective learned that

Ms. Wheeler’s husband and her other cousin, Mark Dillard,

had spent the entire day at the garage. Detective Lawson

and other officers at the scene, furthermore, attached

great—albeit undue—significance to the fact that the

area surrounding the garage was outfitted with a surveillance system. These circumstances provided a reasonable, although ultimately mistaken, basis for Officer

Lawson to believe that Ms. Wheeler was aware of the

activities taking place in the garage. Although Detective

Lawson could have conducted a more thorough investigation under the circumstances, given the information that

he knew and given that the burden is on Ms. Wheeler

to defeat his qualified immunity defense, we cannot

conclude that a reasonable officer could not have believed

that there was probable cause to arrest Ms. Wheeler for

maintaining a common nuisance.
24 No. 07-1791

Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

8-21-08