### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1848

N ELSON D. E DWARDS

, et al.

, Plaintiffs

‐ Appellants

,

v.

M ICHAEL J OLLIFF

‐ B LAKE

, et al.

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:13

‐ cv

‐ 4558

— Jorge L. Alonso

, Judge

.

____________________

A RGUED S EPTEMBER 5, 2018

— D ECIDED N OVEMBER 1, 2018

____________________

Before E ASTERBROOK

, H AMILTON

, and S CUDDER

, Circuit

Judges

.

S CUDDER

, Circuit Judge

. Chicago police o ffi cers obtained a

warrant and searched the home of Nelson Edwards for drugs

and a suspected drug dealer. After the search turned up

neither, Edwards and his family brought suit under 42 U.S.C.

§ 1983 against the City of Chicago and the police o ffi cers who

applied for and executed the search warrant. They alleged

their constitutional rights were violated when the o ffi cers2 No. 17

‐ 1848

obtained a warrant unsupported by probable cause,

performed an unreasonable search of their home, and used

excessive force during the search. The district court saw the

material undisputed facts the other way and granted the

defendants’ motion for summary judgment. We a ffi rm,

concluding that probable cause supported the search warrant

and, regardless, the o ffi cers are entitled to quali fi ed

immunity.

I

Nelson Edwards owns a home on South Keeler Avenue in

Chicago, where he lives with his daughters, Sherri and

Shawna Edwards, and his granddaughter, Shawna Walker. In

2012, Chicago police o ffi cers searched the Edwardses’ home

after receiving a warrant authorizing them to look for heroin

and an alleged drug dealer named Freddy Su tt on. Michael

Jolli ff‐ Blake was the Chicago police o ffi cer who obtained the

warrant, and he did so on the basis of information provided

by a con fi dential informant, “J. Doe.”

Four days before the search, Doe reported buying heroin

in the house from a man he knew as “Fred.” Jolli ff‐ Blake pre

‐ pared a warrant a ffi davit based on Doe’s account: it stated

that Doe had bought heroin from Fred for the past couple of

months; Fred sold heroin out of the basement of the home on

South Keeler; and Doe had bought and used heroin from Fred

earlier that day and, while doing so, saw Fred carrying a plas

‐

tic bag containing over 100 baggies of heroin. The a ffi davit

also explained that Jolli ff‐ Blake showed Doe a photo of the

home on South Keeler, which Doe con fi rmed was the location

in which he bought heroin. Jolli ff‐ Blake then drove Doe to the

location, where Doe again con fi rmed his identi fi cation of theNo. 17

‐ 1848 3

home. Jolli ff‐ Blake also used a Chicago Police Department da

‐

tabase to obtain a photograph of a man named Freddy Su tt on,

who Doe identi fi ed as the “Fred” who sold him heroin. Jolli ff‐

Blake’s supervisor and an assistant state’s a tt orney reviewed

and approved the warrant application.

The next day—one day after receiving the information

from Doe—O ffi cer Jolli ff‐ Blake presented the application to a

Cook County Circuit Court judge. Jolli ff‐ Blake also brought

Doe with him, made Doe available for questioning, and pro

‐

vided the judge with Doe’s criminal history. The judge then

questioned Doe under oath, though there is no transcript of

the proceeding. The judge found that probable cause existed

and issued the warrant.

The o ffi cers conducted the search four days later. Nelson

and Sherri Edwards were outside and prevented from

entering the home and disrupting the search, which took

about two hours. At some point, Nelson Edwards tried to

enter but was pushed by an o ffi cer and prevented from doing

so. At another point, Nelson Edwards told the police that the

home contained registered guns, which the police, in turn,

located. During the search, a police dog alerted to the

presence of drugs in the home, likely due to prescription

narcotics found by the o ffi cers.

Ultimately, the search uncovered no heroin or other illegal

drugs. Nor did the police fi nd Freddy Su tt on. After the police

left, the Edwardses noticed some limited property damage,

including a loose door frame, a mark on a door, and a cut

chain on the outdoor fence.

In 2013, the Edwards family fi led suit under 42 U.S.C.

§ 1983 against O ffi cer Jolli ff‐ Blake, other Chicago police4 No. 17

‐ 1848

o ffi cers, and the City of Chicago, alleging violations of their

civil rights through the defendants’ procurement and

execution of a search warrant without probable cause,

including an excessive force claim for the use of force against

Nelson Edwards. The Edwardses also brought a Monell claim

against the City, alleging the existence of an unconstitutional

policy allowing police o ffi cers to apply for search warrants

based on information provided by anonymous John Doe

informants.

The district court dismissed the Monell claim because the

Edwardses did not plausibly allege the existence of any policy

or practice permi tt ing searches without probable cause. As to

the claims against the individual o ffi cers, the district court

granted their motion for summary judgment, concluding

based upon its own review that the search warrant was

supported by probable cause. It emphasized that Doe had

acquired the information based on fi rsthand observations,

provided a detailed description of his recent heroin purchase

from Fred at a con fi rmed location on South Keeler, and

personally appeared before the Cook County judge and

answered her questions. The district court held in the

alternative that the o ffi cers were entitled to quali fi ed

immunity based on their reasonable reliance on the warrant.

The district court further concluded that the o ffi cers

conducted the search in a reasonable manner and used no

excessive force against Nelson Edwards.

II

A

In determining the su ffi ciency of a warrant a ffi davit, we

focus on the totality of the information presented to the CookNo. 17

‐ 1848 5

County judge. See United States v. Peck

, 317 F.3d 754, 756 (7th

Cir. 2003). Where, as here, the a ffi davit supporting a search

warrant relies on information supplied by an informant, the

analysis examines fi ve primary factors, none of which is

determinative by itself: “the level of detail, the extent of

fi rsthand observation, the degree of corroboration, the time

between the events reported and the warrant application, and

whether the informant appeared or testi fi ed before the

magistrate.” United States v. Glover

, 755 F.3d 811, 816 (7th Cir.

2014). In determining whether probable cause existed, “we

look only at what the o ffi cer knew at the time he sought the

warrant, not at how things turned out in hindsight.”

Beauchamp v. City of Noblesville, Ind.

, 320 F.3d 733, 743 (7th Cir.

2003). The law a ff ords “great deference” to the probable cause

fi nding made by the judge who evaluated the warrant

application in the fi rst instance, and we will uphold that

determination so long as there is a “substantial basis” for

concluding “that a search would uncover evidence of

wrongdoing.” Illinois v. Gates

, 462 U.S. 213, 236 (1983).

These factors support the Cook County judge’s fi nding of

probable cause. The information that Doe provided the police

was based on his detailed, fi rsthand observations as a long

‐

time customer of a heroin dealer he knew as Fred. Doe pro

‐

vided speci fi c information regarding his recent heroin pur

‐

chase from Fred, including the quantity that he had pur

‐

chased (3 baggies for $30), the quantity that Doe observed that

Fred possessed (over 100 baggies), and a statement Fred made

o ff ering to sell Doe more heroin whenever he needed it. The

police then corroborated Doe’s account by having Doe iden

‐ tify a picture of the house, con fi rm that identi fi cation a second

time by driving Doe to the location, and identify a picture of6 No. 17

‐ 1848

Fred. The a ffi davit also established that Doe knew the sub

‐

stance to be heroin because he injected it shortly after the pur

‐

chase and found it similar to the heroin he had purchased

from Fred on other occasions. That Doe provided the police

all of this information against his own penal interest rein

‐

forced his credibility. See United States v. Jones

, 208 F.3d 603,

606, 609 (7th Cir. 2000) (explaining that an informant’s relia

‐ bility was bolstered because she admi tt ed to purchasing ap

‐ proximately twelve pounds of marijuana from the suspect on

at least three previous occasions).

Additionally, only one day had passed between Doe’s

purchase of the heroin and O ffi cer Jolli ff‐ Blake’s application

for the warrant. Finally, Doe personally appeared before the

Cook County judge, giving the judge an opportunity to ask

questions and thereby “evaluate the informant’s knowledge,

demeanor, and sincerity.” United States v. Robinson

, 724 F.3d

878, 884 (7th Cir. 2013). These facts and circumstances

combined to demonstrate a substantial likelihood that the

search would uncover evidence of a crime, and “the Fourth

Amendment requires no more.” Gates

, 462 U.S. at 236.

The Edwardses beg to di ff er, emphasizing that the warrant

application said not a word about Doe’s reliability. They also

contend that the police did next to nothing to corroborate

Doe’s account of drug dealing occurring at their home and

provided no explanation in the warrant application of how

the police determined that “Fred” was Freddy Su tt on or how

the drug house that Doe described was determined to be the

home on South Keeler.

That Doe lacked a track record of serving as a reliable po

‐

lice informant is far from disqualifying. Indeed, as we have

emphasized before, “[a]t the beginning of his work with theNo. 17

‐ 1848 7

police, every informant necessarily provides information for

the fi rst time.” Guzman v. City of Chicago

, 565 F.3d 393, 396 (7th

Cir. 2009). In the absence of information on Doe’s history of

reliability, the law required the Cook County judge to assume

that Doe had no record of past reliability. See United States v.

Koerth

, 312 F.3d 862, 867 (7th Cir. 2002). Statements from an

informant of unknown reliability may serve to establish prob

‐

able cause “if, under the totality of the circumstances, a rea

‐

sonable person might consider that the statements are worthy

of credence.” Id. at 868. That is the case here.

To be sure, the Edwardses are right to observe that the of

‐

fi cers largely took Doe at his word without independently

corroborating much of his account. While the o ffi cers took

steps to have Doe con fi rm the identity of the house and Fred,

they did not seek corroboration outside of Doe himself. For

example, the o ffi cers did not ask Doe to wear a wire when

buying additional heroin from Fred or introduce another in

‐

formant to Fred to do so. Put di ff erently, the steps the police

took gave them some additional information, but did not “di

‐ rectly bolster” Doe’s account that Fred was dealing heroin at

the home on South Keeler. United States v. Dismuke

, 593 F.3d

582, 588 (7th Cir. 2010), abrogated on other grounds, as recog

‐

nized in United States v. Miller

, 721 F.3d 435, 438–39 (7th Cir.

2013).

These observations only go so far, though. We must view

the corroborative e ff orts the police took against the multiple

other factors strongly supporting a fi nding of probable cause.

And here those facts added up to probable cause: Doe’s de

‐

tailed tip was based on fi rsthand and recent observations; he

con fi rmed the identity of the location and person from whom

he bought the heroin; and then he appeared before the Cook8 No. 17

‐ 1848

County judge and submi tt ed to questioning. The district court

reached this exact conclusion after conducting a careful and

detailed review of the record, and we see no basis to disagree.

For their part, the Edwardses see disputed factual issues

at every turn and argue the district court should have sent the

case to trial. We disagree. The only facts “relevant to

determining whether probable cause existed are those known

to the police when they apply for a warrant.”

Beauchamp

, 320 F.3d at 745. And, while the Edwardses are able

to point to certain facts that remain disputed, we do not see

those facts as both genuine and material to the probable cause

question. Carroll v. Lynch

, 698 F.3d 561, 564 (7th Cir. 2012).

Consider a few examples. Take the Edwardses’ contention

that the dispute over whether Doe had a prior relationship

with the police precludes summary judgment. Viewing the

facts in the light most favorable to the Edwardses shows that

Doe fi rst met the o ffi cers only shortly before he gave the tip

and, more speci fi cally, just after he came into police custody

while high on heroin, craving more heroin, and in a state of

mind where he was willing to do about anything to get that

heroin, including serve as a police informant.

Even if all true, we fail to see how this materially alters the

probable cause analysis. The warrant a ffi davit made no rep

‐

resentations that Doe had a prior relationship with the police

or a track record of providing reliable information. Further,

the a ffi davit made clear that Doe was a heroin user, and the

Cook County judge was provided with Doe’s criminal his

‐

tory. And the police certainly are not playing in foul territory

by choosing to talk to heroin users about where and from

whom they buy heroin.No. 17

‐ 1848 9

Take another example. The Edwardses emphasize that

Doe was unable to identify the address and location of the

drug house at his depositions. Doe’s inability to recall the ad

‐

dress of the house during his depositions in 2015, however,

does not create a genuine dispute of fact as to whether Doe

identi fi ed the home on South Keeler as the drug house in

2012. Doe never wavered in his assertion that he had pur

‐

chased heroin from the house he had identi fi ed for the o ffi c

‐

ers, even if three years later he provided confused testimony

regarding the exact location of the house.

Finally, the Edwardses point out that during the course of

the litigation, O ffi cer Jolli ff‐ Blake originally provided incor

‐

rect information regarding Doe’s identity in his discovery re

‐

sponses. Jolli ff‐ Blake amended his discovery responses, ex

‐ plaining that his error was the product of having 8–10 inform

‐

ants at any given time and apparently not keeping organized

or detailed logs about each of the informants. What is clear,

however, is that the Edwardses had a full and fair opportunity

to depose J. Doe after Jolli ff‐ Blake made the correction. At

summary judgment, the Edwardses pointed to no evidence

indicating that the person who provided the tip was not the

same person who appeared before the Cook County judge

and who they later deposed.

While our dissenting colleague is correct to observe that

the district court originally noted that O ffi cer Jolli ff‐ Blake’s

changed discovery responses raised credibility issues, the dis

‐

trict court ultimately concluded that no factual dispute pre

‐

cluded a determination that probable cause existed. State

‐

ments made in the course of ruling on a discovery dispute do

not change this determination, which was based on the

court’s careful review of the record. And on this record, the10 No. 17

‐ 1848

o ffi cer’s confusion and poor recordkeeping do not negate the

Cook County judge’s fi nding of probable cause based on an

informant that personally appeared before her.

The Edwardses have not identi fi ed a genuine dispute as to

any fact that is material to our probable cause inquiry.

B

We also see no constitutional in fi rmity in the o ffi cers’

execution of the search. They had a warrant to search a single

‐ family home for illegal drugs and that is what they did. They

were not required to call o ff the search because the home did

not fi t the stereotype of a stash house. Rather, our caselaw

requiring o ffi cers to abandon a search addresses scenarios in

which the warrant plainly did not describe the location to be

searched, such as where, for example, the warrant described

a single

‐ family home and the o ffi cers arrived to fi nd a multi

‐

unit building. See Guzman

, 565 F.3d at 397–98; Jacobs v. City of

Chicago

, 215 F.3d 758, 771 (7th Cir. 2000) (same). The

Edwardses a tt empt to shoehorn the facts at hand into this

body of caselaw, noting minor inconsistencies between how

the home at South Keeler was described in the warrant and

how the o ffi cers encountered it. For instance, the Edwardses

point out that their basement was a small, clu tt ered area,

which is inconsistent with it being a site to run a heroin

operation. But these small inconsistencies, pointed out with

the bene fi t of hindsight, would not have given the o ffi cers

good reason to believe they were searching the wrong home.

Nor are we aware of any rule requiring o ffi cers executing

a valid warrant to abandon the search if drugs are not imme

‐ diately seen or found. Here, the police dog alerted for the

presence of narcotics in the home and Nelson Edwards toldNo. 17

‐ 1848 11

the o ffi cers that there were guns in the home, which the o ffi c

‐

ers then had to locate. Faced with these circumstances, the

Fourth Amendment did not require the o ffi cers to call o ff the

search. We cannot say that the o ffi cers’ taking two hours to

search an entire home exceeded the bounds of reasonable

‐

ness. See United States v. Jennings

, 544 F.3d 815, 818 (7th Cir.

2008).

The police were also on solid legal ground in detaining the

Edwardses during the search, as a warrant founded on

probable cause carries with it the “categorical authority to

detain any occupant of the subject premises during the

search.” Id. Furthermore, the district court properly rejected

Nelson Edwards’ excessive force claim. A push by an o ffi cer

to stop Nelson Edwards from running into a house that was

subject to an ongoing search was objectively reasonable under

the circumstances. See Graham v. Connor

, 490 U.S. 386, 397

(1989).

III

So, too, do we agree with the district court’s conclusion

that, even assuming the search warrant was not supported by

probable cause, the o ffi cers are entitled to quali fi ed immunity

for their conduct in procuring and executing the warrant. In

assessing quali fi ed immunity, we ask two questions:

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

plainti ff

, show that the defendants violated a constitutional

right; and (2) whether that constitutional right was clearly

established at the time of the alleged violation.” Betker v.

Gomez

, 692 F.3d 854, 860 (7th Cir. 2012). We conduct this

inquiry against the backdrop of the Supreme Court’s repeated

(and recent) reminders “not to de fi ne clearly established law

at a high level of generality” and with the understanding that12 No. 17

‐ 1848

quali fi ed immunity “protects all but the plainly incompetent

or those who knowingly violate the law.” Kisela v. Hughes

, 138

S. Ct. 1148, 1152 (2018); see also White v. Pauly

, 137 S. Ct. 548,

551–52 (2017).

An “o ffi cer who relies on a subsequently invalidated war

‐

rant may be liable for § 1983 damages only if the warrant ap

‐ plication was ‘so lacking in indicia of probable cause as to ren

‐

der o ffi cial belief in its existence unreasonable.’” Junkert v.

Massey

, 610 F.3d 364, 369 (7th Cir. 2010) (quoting Malley v.

Briggs

, 475 U.S. 335, 345 (1986)). This standard derives from,

and is applied much like, the standard for the good

‐ faith ex

‐ ception to the exclusionary rule. Id. An o ffi cer faces personal

liability only if “courts have clearly held that a materially sim

‐

ilar a ffi davit previously failed to establish probable cause un

‐

der facts that were indistinguishable from those presented in

the case at hand” or if “the a ffi davit is so plainly de fi cient that

any reasonably well

‐ trained o ffi cer would have known that

his a ffi davit failed to establish probable cause and that he

should not have applied for the warrant.” Id. (quoting Koerth

,

312 F.3d at 870).

Time and again we have upheld warrants based on an

informant’s recent and fi rsthand account of criminal activity.

See, e.g.

, Dismuke

, 593 F.3d at 588 (upholding warrant based

on informant’s tip that he had personally observed the

suspect with guns in his home within the last week); United

States v. Sims

, 551 F.3d 640, 644 (7th Cir. 2008) (concluding that

an a ffi davit based on informant’s tip that he had seen drugs

on the suspect and in the suspect’s residence within the past

72 hours “clearly supported a determination of probable

cause”). Here, the a ffi davit contained detailed information

about Doe’s recent purchase of heroin, explaining where DoeNo. 17

‐ 1848 13

bought the drugs, who he bought them from, and the steps

the police took to con fi rm Doe’s identi fi cation of the location

and Fred as the seller. O ffi cer Jolli ff‐ Blake presented Doe to

the Cook County judge, who then proceeded to question Doe.

There was no reason the o ffi cers should have doubted the

su ffi ciency of these actions once the Cook County judge—

relying upon the totality of this information—approved the

application and issued the warrant. The district court reached

the same conclusion: that probable cause existed to support

the warrant. While not dispositive, agreement by neutral fact

‐

fi nders that probable cause existed “certainly is further

evidence that [the o ffi cers’] reliance on the a ffi davit was

reasonable.” United States v. Harju

, 466 F.3d 602, 611 n.5 (7th

Cir. 2006).

The Edwardses posit that the police procured the warrant

with a reckless disregard for the truth. It is “clearly estab

‐

lished ‘that a warrant request violates the Fourth Amendment

if the requesting o ffi cer knowingly, intentionally, or with

reckless disregard for the truth, makes false statements in re

‐ questing the warrant and the false statements were necessary

to the determination that a warrant should issue.’” Lawson v.

Veruchi

, 637 F.3d 699, 705 (7th Cir. 2011) (quoting Knox v.

Smith

, 342 F.3d 651, 658 (7th Cir. 2003)). The standard requires

a showing that the Edwardses cannot make: that “the o ffi cers

entertained serious doubts as to the truth of their statements,

had obvious reasons to doubt the accuracy of the information

reported, or failed to inform the judicial o ffi cer of facts they

knew would negate probable cause.” Beauchamp

, 320 F.3d at

743.14 No. 17

‐ 1848

As the Edwardses see it, multiple omissions on the o ffi c

‐

ers’ part evince their reckless disregard for the truth. They as

‐

sert that the o ffi cers failed to disclose Doe’s severe heroin ad

‐

diction, the coercive (heroin

‐ craving) circumstances under

which he provided the tip, and his failure to adequately iden

‐ tify his supplier and the house where he claimed to have pur

‐

chased drugs. The Edwardses also argue that the o ffi cers un

‐ reasonably relied upon “an obviously impaired witness” who

gave them inconsistent information, and then recklessly failed

to corroborate this information.

These omissions were either presented to the Cook

County judge or irrelevant to the probable cause

determination. Foremost, the Edwardses too discount, if not

entirely overlook, that Doe appeared before the Cook County

judge. They also ignore that the o ffi cers provided the judge

with Doe’s criminal history and the a ffi davit contained much

of the purportedly omi tt ed information, including Doe’s use

of heroin. More to the point, the a ffi davit stated that Doe had

been using heroin for over two years, had used heroin the day

before, and had bought heroin from Fred “numerous times”

in the past two months. It was no secret to anyone that Doe

was a heroin addict. And it could not have possibly been news

to the Cook County judge that Doe, as an addict, may have

been impaired, su ff ering from withdrawal, and had an

incentive to cooperate with the police. Judges, too, live in the

real world and “are aware that informants are frequently

facing charges and hoping for deals.” Molina ex rel. Molina v.

Cooper

, 325 F.3d 963, 970 (7th Cir. 2003). Given Doe’s

appearance and the o ffi cers’ disclosures, this is a far cry from

a situation involving the “wholesale omission of damaging

credibility information.” Glover

, 755 F.3d at 818.No. 17

‐ 1848 15

The Edwardses further argue that the o ffi cers failed to

disclose Doe’s confusion as to the location of the drug house.

The Edwardses point to nothing in the record, however,

indicating the o ffi cers had reason to doubt Doe’s

identi fi cation of the drug house at the time they applied for

the warrant. They instead rely on Doe’s inability to recall the

address of the drug house at his depositions years later. It is

unclear how the o ffi cers could have disclosed something to

the Cook County judge that they did not know at the time.

The Edwardses cannot manufacture a factual dispute with

after

‐ the

‐ fact confusion.

Nor does the o ffi cers’ minimal corroboration show a reck

‐

less disregard for the truth su ffi cient to overcome quali fi ed

immunity, especially in light of the other factors indicating

the reliability of Doe’s information. At the time they applied

for the warrant, Doe had identi fi ed the residence on South

Keeler as the drug house, from a picture and in person. The

o ffi cers had no reason to doubt the accuracy of this infor

‐

mation and instead, may have reasonably assumed that some

‐

one with a drug habit would be able to identify the house

where he had recently purchased drugs. The a ffi davit out

‐

lined the steps that Jolli ff‐ Blake took to corroborate Doe’s ac

‐

count. Armed with this information, “[t]he state judge could

have told the police that they needed to do more investiga

‐

tion; by issuing the warrant instead, the judge entitled the po

‐

lice to search without the risk of personal liability.” Walker v.

Weatherspoon

, 900 F.3d 354, 358 (7th Cir. 2018).

The record does not support the conclusion that the o ffi c

‐

ers recklessly a tt empted to mislead the Cook County judge,

and the o ffi cers are entitled to quali fi ed immunity. See e.g.

,16 No. 17

‐ 1848

Archer v. Chisholm

, 870 F.3d 603, 615–16 (7th Cir. 2017) (reject

‐ ing the argument that defendants recklessly provided mis

‐ leading statements in the warrant application and concluding

defendants were entitled to quali fi ed immunity); Junkert

,

610 F.3d at 370 (concluding o ffi cers were entitled to quali fi ed

immunity based on their reasonable belief that the a ffi davit

established probable cause even though it left “much to be de

‐ sired”).

IV

The district court properly entered judgment for the City

of Chicago on the Monell claim. The Monell claim arises out of

the Chicago Police Department’s policy and practice of using

John Doe informants and, most importantly, is premised on

the same conduct upon which the Edwardses base their

claims against the individual o ffi cers. Because the Edwardses

cannot make out a constitutional violation in their claim

against the individual o ffi cers, there can be no viable Monell

claim based on the same allegations. City of Los Angeles v.

Heller

, 475 U.S. 796, 799 (1986); see also White v. City of Chicago

,

829 F.3d 837, 844 (7th Cir. 2016) (“Probable cause also

establishes that White did not su ff er a constitutional injury,

which is a necessary element of a Monell claim.”).

Finally, the district court did not abuse its discretion in

denying the Edwardses’ motion to compel Doe’s Registered

Cooperating Individual fi le. We will reverse a district court’s

denial of a motion to compel only upon a “clear showing that

the denial of discovery resulted in actual and substantial prej

‐

udice.” Gonzalez v. City of Milwaukee

, 791 F.3d 709, 713 (7th Cir.

2015). The district court determined that the fi le was not rele

‐

vant because it related only to Doe’s track record as an inform

‐No. 17

‐ 1848 17

ant after he provided the tip in question. We agree, and con

‐

clude that the Edwardses have not made out the requisite

showing of prejudice.

For these reasons, the district court correctly concluded

the search warrant was supported by probable cause and the

o ffi cers’ conduct in executing the warrant was reasonable. We

AFFIRM.18 No. 17

‐ 1848

H AMILTON

, Circuit Judge

, dissenting in part. Plainti ff s’

claims against defendant Jolli ff‐ Blake should be remanded for

trial. As recognized by Judge Chang, the fi rst district judge to

handle this case, both O ffi cer Jolli ff‐ Blake and the “John Doe”

informant who testi fi ed have signi fi cant credibility problems.

Those credibility problems call into question the foundation

for the search warrant. A jury should decide the claims

against Jolli ff‐ Blake.

Eleven police o ffi cers arrived at plainti ff s’ home with a

warrant to search the house for drugs. It was not a promising

site for fi nding a round

‐ the

‐ clock drug operation. Nelson Ed

‐

wards had owned the home for 41 years. In 2012, he was 72

years old and had retired after working for 31 years for the

University of Illinois at Chicago. He lived at the house with

his two daughters and his twelve

‐ year

‐ old granddaughter.

Police o ffi cers found no drugs beyond prescription medica

‐

tion. In fact, upon entry, it was clear enough to the o ffi cers that

they likely had the wrong house that the supervising sergeant

ordered the “white glove” treatment. A short while into the

search, Mr. Edwards’ daughter overheard one o ffi cer say,

“We’ve been bamboozled again.”

The central claim in this lawsuit is that O ffi cer Jolli ff‐ Blake

made false statements, either knowingly or recklessly, to the

judge who issued the search warrant. See, e.g., Molina ex rel.

Molina v. Cooper

, 325 F.3d 963, 968 (7th Cir. 2003). The plain

‐

ti ff s contend that O ffi cer Jolli ff‐ Blake was at least reckless in

obtaining a search warrant for their home based on what he

was supposedly told by an unreliable heroin addict, one who

was desperately “dope

‐ sick” and desperate to tell the police

something—or anything. It’s not surprising that heroin ad

‐

dicts are sources of information about where to buy heroin.No. 17

‐ 1848 19

But the key questions are what O ffi cer Jolli ff‐ Blake knew

when he sought the warrant, and whether he had obvious rea

‐

sons to doubt the information he reported to the judge. E.g.,

Beauchamp v. City of Noblesville

, 320 F.3d 733, 742–43 (7th Cir.

2003), citing Malley v. Briggs

, 475 U.S. 335, 345, 341 (1986)

(quali fi ed immunity protects “all but the plainly incompetent

or those who knowingly violate the law”).

To be clear, if we accept the defendants’ fi nal version of the

facts here, then all defendants were entitled to summary judg

‐

ment. The majority’s account of the law applicable to the de

‐

fense’s fi nal version of the facts is correct. The search of the

plainti ff s’ home was a fruitless fi asco, but it did not violate the

Fourth Amendment if it was based on a mistaken but honest

judgment to trust what the informant told the police.

But I disagree with my colleagues because two genuine is

‐

sues of material fact are at the heart of plainti ff s’ claims

against O ffi cer Jolli ff‐ Blake. Con fl icting testimony from Jolli ff‐

Blake and “Doe” means that neither’s testimony can or should

be accepted for purposes of summary judgment. The fi rst is

‐

sue is the sheer identity of the “John Doe” informant upon

whom the search warrant application was based. The second

is which house “John Doe” supposedly told Jolli ff‐ Blake was

where he had bought heroin.

The majority accepts as undisputed the fi nal answers pro

‐

vided in discovery by Jolli ff‐ Blake and then by Doe. As ex

‐ plained below, however, those fi nal answers con fl icted with

repeated, sworn testimony from both Jolli ff‐ Blake and John

Doe on the same subjects.

The defense a tt ributes the changing answers under oath to

confusion and the fallibility of memory. Fair enough, but this20 No. 17

‐ 1848

is summary judgment. Plainti ff s are entitled to the bene fi t of

any admissible evidence favoring their claims and con fl icts in

the evidence, as well as reasonable inferences favorable to

their claims. Reeves v. Sanderson Plumbing Products, Inc.

, 530

U.S. 133, 150 (2000); see also Anderson v. Liberty Lobby, Inc.

, 477

U.S. 242, 249 (1986) (a “judge’s function” on summary judg

‐

ment is not “to weigh the evidence and determine the truth of

the ma tt er but to determine whether there is a genuine issue

for trial”); Muhammad v. Pearson

, 900 F.3d 898, 902 (7th Cir.

2018), citing Zimmerman v. Doran

, 807 F.3d 178, 182 (7th Cir.

2015). A jury hearing both Jolli ff‐ Blake’s and John Doe’s con

‐

fl icting answers on critical facts could reasonably conclude

that neither should be believed about any important fact. See

Reeves

, 530 U.S. at 147 (relying on “general principle of evi

‐

dence law that the fact fi nder is entitled to consider a party’s

dishonesty about a material fact as ‘a ffi rmative evidence of

guilt’”), quoting Wright v. West

, 505 U.S. 277, 296 (1992). 1

O

ffi cer Jolli ff‐ Blake’s Original Version : From the beginning,

plainti ff s sought the identity of the “John Doe” who suppos

‐ edly claimed he had bought heroin at plainti ff s’ home in June

2012. The defense refused, asserting that the information

should be kept con fi dential. Plainti ff s then served requests for

admissions under Federal Rule of Civil Procedure 36. Jolli ff‐

Blake answered the requests for admission twice, on Decem

‐

ber 2, 2013, and again on January 29, 2014, with amendments

not relevant here.

1 I agree with my colleagues’ decisions about claims against all other

defendants. If Jolliff

‐ Blake was dishonest or reckless in obtaining the

search warrant, plaintiffs could hold him accountable for the restraints on

their liberty and the use of force against Mr. Edwards during an unconsti

‐

tutional search.No. 17

‐ 1848 21

In those twice

‐ sworn answers, Jolli ff‐ Blake claimed that:

(1) he knew the identity of John Doe at the time of the search

but no longer knew it; (2) he had kept no wri tt en notes or rec

‐

ords of Doe’s real name, address, or telephone number; (3) he

had never registered Doe as an informant under Chicago po

‐

lice policies; and (4) he had not used Doe as an informant

since the debacle at the Edwards’ home.

After responding to the requests for admissions, Jolli ff‐

Blake also answered plainti ff s’ interrogatories, fi rst on March

5, 2014 and again on August 20, 2014. Those sworn answers

repeated that, after the search of the plainti ff s’ home in June

2012, Jolli ff‐ Blake had not used Doe again to obtain search or

arrest warrants and that Doe had not been registered as an

informant.

Plainti ff s then moved to compel defendants to identify

“Doe.” Judge Chang held a hearing on August 5, 2014. He

pointed out that the search had failed to uncover the alleged

drug

‐ dealer, any drugs, or any drug paraphernalia, rendering

the representation “that there was a drug operation operating

supposedly night and day in that basement” a “falsity.” In

terms of whether O ffi cer Jolli ff‐ Blake knowingly or recklessly

disregarded the truth, the judge observed that “right now you

have, as far as the records show, o ffi cers who took the word

of someone who had just supposedly go tt en high and bought

drugs at this location and they didn’t ask him why he is coop

‐ erating.” At that hearing, however, Judge Chang postponed

ruling on the motion to compel until after O ffi cer Jolli ff‐

Blake’s deposition.

O

ffi cer Jolli ff‐ Blake’s New Story : Faced with a likely order to

disclose Doe’s identity, Jolli ff‐ Blake changed his story a few

days before his deposition. He fi led a motion under Rule 36(b)22 No. 17

‐ 1848

for leave to change his answers to four requests to admit. In

the new answers, Jolli ff‐ Blake claimed that all of his testimony

up to that point had been about the wrong “ John Doe. ” Jolli ff‐

Blake now claimed that: (1) he actually did know Doe’s true

name; (2) he did keep records of Doe’s identity; (3) Doe in fact

had been registered as an informant; and (4) he had actually

used Doe as an informant again after the search of the plain

‐

ti ff s’ home.

This is how Jolli ff‐ Blake himself amended his answers:

Request No. 25. The defendant responding to this Re

‐

quest to Admit knows the true name of the “John Doe”

informant who gave information leading to the issu

‐

ance of Search Warrant #12 SW 6213.

Withdrawn Answer: Denied

Amended Answer: Admit

Request No. 31. The defendant responding to this Re

‐

quest to Admit kept no wri tt en notes or records of the

name, address, or telephone number of the “John Doe”

informant who gave information leading to the issu

‐

ance of Search Warrant #12 SW 6213.

Withdrawn Answer: Admit

Amended Answer: Admit defendant kept no wri tt en

notes or records of the address or telephone number of

the “John Doe” informant. Deny defendant kept no

wri tt en notes or records of the name of the John Doe

informant.

Request No. 32. The defendant responding to this Re

‐

quest to Admit has never registered the “John Doe” in

‐

formant who gave information leading to the issuanceNo. 17

‐ 1848 23

of Search Warrant # 12 SW 6213 5 as a Registered Co

‐ operating Individual as de fi ned in the Chicago Police

Department policies and procedures.

Withdrawn Answer: Admit

Amended Answer: Deny

Request No. 34. The defendant responding to this Re

‐

quest to Admit has not used the “John Doe” informant

who gave information leading to the issuance of Search

Warrant #12 SW:6213 as an informant since using him

to obtain Search Warrant #12 SW 6213.

Withdrawn Answer: Admit

Amended Answer: Deny

O ffi cer Jolli ff‐ Blake a tt ributed this dramatic change in his

repeated, sworn testimony to an epiphany he supposedly ex

‐ perienced when he read his partner’s deposition testimony

describing the “John Doe” for this search warrant. Jolli ff‐

Blake claimed he realized then that when he had answered

the requests to admit, he “mistakenly confused the [relevant]

informant with two other informants that he was also using

about the same time in the 11th District who were physically

similar in color, size and stature to the [relevant] Informant.”

Plainti ff s did not buy this explanation. In opposing Jolli ff‐

Blake’s motion to withdraw his admissions, they pointed out

how many times he had repeated the original version under

oath and how much work their a tt orneys had done based on

the original version. They also argued that his new answers24 No. 17

‐ 1848

were just false. They questioned whether there had actually

been a real John Doe for this search warrant. 2

Judge Chang’s oral decision on the motion to withdraw

admissions was sensible. He allowed O ffi cer Jolli ff‐ Blake to

withdraw his admissions, but he explained that the changing

answers presented credibility issues for a jury:

At this point it is be tt er to allow the plainti ff to cross

‐

examine on the changes rather than to lock in the de

‐

fendant on a version of events that, at least according

to the defendant, [is] not accurate anymore.

This goes right to the heart of the merits of the case.

And there was some time passage, obviously, between

the underlying events in this case and the answers to

the request to admit. He has worked on, you know,

many, many investigations since then. And so I will al

‐

low this amendment so that we have the fact fi nder,

you know, the jury, actually decide on the back and

forth of testimony as opposed to on really a discovery

issue.

This does not meant that he should not have been bet

‐

ter prepared to answer the requests to admit. This was

obviously a crucial issue, and it really should have

2 Confidential police records submitted in camera show that months

after the fruitless search of plaintiffs’ home (and after time for an internal

investigation), Officer Jolliff

‐ Blake recorded using the same “John Doe” as

making three controlled drug buys within one week. The records indicate

that Doe received no money and produced not even one arrest. These sup

‐ posed buys were apparently the minimum needed to “register” Doe as a

“registered cooperating individual,” which could strengthen a claim in

court that his identity should be kept confidential.No. 17

‐ 1848 25

been the focus of a searching inquiry of his own

memory, but it is going to be up to the fact fi nder to

decide as opposed to leaving it to the request to admit.

Nov. 21, 2014 Tr. 18. Judge Chang also required the defense

to pay some costs of follow

‐ up discovery required by the

changes in Jolli ff‐ Blake’s testimony.

The judge’s approach had a sound legal basis. When a

party obtains relief from an admission under Rule 36(b), both

answers are admissible as an opposing party’s admission and

can be used to impeach the witness. 8B Wright & Miller, Fed

‐

eral Practice & Procedure § 2264 (3d ed.). That is essentially the

same result as when a deposition witness changes an answer

under Rule 30(e). Thorn v. Sundstrand Aerospace Corp.

, 207 F.3d

383, 389 (7th Cir. 2000) (amending deposition answer does

“not remove the issue from the jury” because “fortunately the

rule requires that the original transcript be retained

. . . so that

the trier of fact can evaluate the honesty of the alteration”); 8A

Wright & Miller, Federal Practice and Procedure § 2118 (3d ed.)

(“the preferable rule seems to be that the original answers

must of course remain in the record” and can be used for im

‐ peachment purposes at trial).

“John Doe’s” Testimony : In the wake of Jolli ff‐ Blake’s new

story, Judge Chang also ordered disclosure of John Doe’s

identity. Defendants identi fi ed the person who they claimed

had provided the basis for this search warrant, and plainti ff s

took his deposition. To call him a di ffi cult witness is an un

‐

derstatement. His deposition was conducted in three sessions.26 No. 17

‐ 1848

The fi rst two ended when he just walked out. To call his testi

‐

mony confused is even more of an understatement. 3

Doe’s account of where he had supposedly bought heroin

was a moving target. During his fi rst session, he testi fi ed—

repeatedly—the he had bought the drugs from a house on

Flournoy Street

, not from the plainti ff s’ home on Keeler Ave

‐

nue. Doe referred to Flournoy Street a dozen times. He em

‐ phasized that, although “I don’t know addresses,” “If you

needed dope, everybody would just say go down—go down

to Flournoy.” 4 Plainti ff ’s a tt orney was the fi rst to mention “the

800 block of South Keeler,” where plainti ff s lived, but Doe

stuck to his Flournoy answers until right before the abrupt

end of the deposition when he stumbled onto “Arthington.”

Doe’s later two sessions hewed more closely to the defend

‐

ants’ preferred version, that he bought heroin from the plain

‐

ti ff s’ house at the corner of South Keeler and Arthington.

These con fl icts in a witness’s testimony on a critical issue

present genuine issues of fact. Parties moving for summary

judgment are not entitled to “cherry

‐ pick” only the evidence

3 In addition to oscillating between incoherent combativeness and ap

‐ pearing to drift off to sleep, the witness peppered his testimony with easily

disprovable and pointless lies. For example, he said his parents died in

Hurricane Katrina. In reality, he had recently been convicted of defraud

‐ ing his mother, who lived in Illinois. He said he attended a high school in

New Orleans that does not exist. He actually attended high school in Illi

‐

nois.

4 Early in the deposition, the witness hesitated and said: “Pretty sure

that’s the street name. Or Lexing

– no. Wait

– Lexington. Flournoy.

Flournoy.” The target of the drug search was ostensibly one Freddie Sut

‐

ton, who had a long list of drug

‐ related arrests and whose long

‐ time resi

‐

dence was several blocks away on Lexington, near Flournoy.No. 17

‐ 1848 27

most favorable to them. E.g., Malin v. Hospira, Inc

., 762 F.3d

552, 564 (7th Cir. 2014). When moving parties make that mis

‐

take, it’s the court’s job to correct the mistake, not to repeat it.

Id

.

The Majority’s Excuses for the Defense : The majority

acknowledges Doe’s “confused” testimony and Jolli ff‐ Blake’s

“confusion and poor recordkeeping.” Ante at 9–10. Yet the

majority fi nds no reason to doubt the ( fi nal) versions of their

testimony supporting the search warrant. Respectfully, as

Judge Chang recognized in the district court, it is not the task

of a district court or this court to sort out such factual disputes

on summary judgment.

Confusion, poor recordkeeping, and the e ff ects of time on

memory may be reasonable explanations for the con fl icts, but

they are not the only ones. A reasonable jury could also con

‐

clude that if O ffi cer Jolli ff‐ Blake was willing to testify—re

‐ peatedly—to his original version, then he simply is not a reli

‐

able witness. Maybe his memory was faulty. Maybe he was

not being honest. Either way, he impeached his own testi

‐

mony on critical facts. He showed that his testimony is not

reliable. At the very least, that’s what a reasonable jury could

fi nd.

Standard jury instructions teach jurors that in deciding

what weight to give a witness’s testimony, they may consider

impeachment by his own prior statements and con fl icting tes

‐ timony from others. The instructions also teach that in weigh

‐ ing the e ff ect of an inconsistent statement, jurors should “con

‐

sider whether it was simply an innocent error or an inten

‐

tional falsehood and whether it concerns an important fact or

an unimportant detail.” Seventh Circuit Pa tt ern Civil Jury In

‐

struction 1.14.28 No. 17

‐ 1848

I do not contend that trivial variations in a witness’s testi

‐

mony always require denial of a summary judgment motion

based on his testimony. The contradictions here, however, go

to the heart of the case: who was “John Doe,” where did he

say he bought the heroin, and did the police have any busi

‐

ness trusting him? If Jolli ff‐ Blake cannot keep his sworn testi

‐

mony straight on these ma tt ers, it is a mistake to say the courts

must accept the fi nal, defense

‐ friendly version of his testi

‐

mony. Consistent with our pa tt ern instructions, this case pre

‐

sents issues for trial, not summary judgment.

The majority’s decision to accept Jolli ff‐ Blake’s explana

‐

tions for his con fl icting testimony and impeachment takes this

court well outside the proper role for summary judgment.

Maybe this fi asco of a search was the result of an honest but

too

‐ credulous o ffi cer’s mistake in crediting “Doe.” That’s

what my colleagues believe. But that’s not our decision to

make. Maybe we are just seeing a cover

‐ up for the fi asco. The

evidence also permits a reasonable inference that Jolli ff‐

Blake’s and Doe’s defense

‐ friendly account of any facts

simply does not deserve to be believed. Plainti ff s’ claims

against Jolli ff‐ Blake should be tried. To that extent, I respect

‐ fully dissent.