# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 23, 2011 *

Decided April 12, 2011

Before

FRANK H. EASTERBROOK, Chief Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 10

‐ 3080

CLARENCE M. EASTERLING,

Plaintiff

‐ Appellant

,

v.

CHRIS MOELLER and DAVE PEHL

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 07

‐ CV

‐ 209

J.P. Stadtmueller

Judge

.

O R D E R

Clarence Easterling is serving a prison sentence in Wisconsin for armed robbery. In

this action under 42 U.S.C. § 1983, he claims that two police officers violated his Fourth

Amendment rights while gathering the evidence that led to his prosecution. The district

court granted summary judgment for the officers, and we affirm that decision. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the briefs and record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and record. See F ED

. R. A PP

. P.

34(a)(2)(c).No. 10

‐ 3080 Page 2

In the Union Building at the University of Wisconsin

‐ Parkside, two people wearing

distinctive masks held a nighttime custodian at gunpoint, stole his keys, and bound him

with a black plastic “zip strip” while they attempted to steal money from an ATM. The next

day, Officer Chris Moeller received a tip from student David Scheuer, who said he

suspected that Easterling, one of his roommates, was involved in the robbery. Moeller and

Officer Dave Pehl then interviewed Dallas Diener, another roommate, who said that

Easterling had given him a black bag shortly after the robbery. Easterling and Diener did

not share a bedroom, but Easterling wanted Diener to stash the bag in his room. Diener had

not looked inside and did not know what the bag contained; he explained to the officers

that Easterling had ordered him not to open the bag and threatened physical harm if he

disobeyed. Diener led the officers to his room and directed them to the bag, which was

hidden under his bed. The officers opened it and found black plastic zip strips and a mask

like those used during the robbery. Moeller then obtained a warrant to search the entire

apartment; the officers seized several items, including the keys taken from the custodian

and two pieces of scrap paper, each displaying a handwritten name and phone number.

After his arrest Easterling pleaded guilty in Wisconsin state court to armed robbery,

false imprisonment, battery, and criminal damage to property. He was sentenced to a total

of 25 years’ imprisonment. He filed a direct appeal and also moved to withdraw his guilty

pleas on the ground that his lawyer had been constitutionally ineffective. Easterling alleged

that counsel had been deficient in a variety of ways, including by not filing a motion to

suppress. According to Easterling, his lawyer should have asserted that Officers Moeller

and Pehl violated the Fourth Amendment when they obtained his black bag from Diener

and searched it. The sentencing court denied this motion, and the state appellate court

upheld that decision and affirmed Easterling’s convictions. State v. Easterling

,

Nos. 2004 AP 934

‐ CR & 2005 AP 1224

‐ CR (Wis. Ct. App. July 5, 2006). The state supreme

court declined further review.

Easterling then sued Officers Moeller and Pehl under § 1983. He claimed that Diener,

by relinquishing the black bag to the officers, did not also consent to them opening and

searching it. Easterling also asserted that Moeller obtained the search warrant by falsely

stating that the incriminating items in the black bag had been recovered during a

consensual search, and that the officers exceeded the scope of the warrant by seizing the

two pieces of scrap paper. The district court initially dismissed Easterling’s complaint on

the ground that it was barred by Heck v. Humphrey

, 512 U.S. 477 (1994), but we vacated the

dismissal and remanded for further proceedings, Easterling v. Moeller

, 334 F. App’x 22 (7th

Cir. 2009). On remand the district court granted summary judgment for the officers. The

court reasoned that the doctrine of issue preclusion barred Easterling from claiming that his

bag had been searched illegally. The court also concluded that Easterling lacked evidence toNo. 10

‐ 3080 Page 3

overcome the presumption that Officer Moeller’s warrant affidavit was valid, and that

undisputed evidence established that the scraps of paper were lawfully seized.

On appeal Easterling argues that he did not have a full and fair opportunity to

litigate whether the search of his bag violated the Fourth Amendment and thus issue

preclusion should not bar his § 1983 claim. Federal courts give a state judgment the same

preclusive effect that it would receive in state court. See Allen v. McCurry

, 449 U.S. 90 (1980);

Burke v. Johnston

, 452 F.3d 665, 669 (7th Cir. 2006). In Wisconsin, a party may not relitigate a

question of fact or law decided in prior litigation if the resolution of that issue was

necessary to the judgment and giving it preclusive effect would not be fundamentally

unfair. See City of Sheboygan v. Nytsch

, 722 N.W. 2d 626, 629

‐ 30 (Wis. Ct. App. 2006) ; Mrozek

v. Intra Fin. Corp

., 699 N.W. 2d 54, 61 (Wis. 2005). Here, Easterling actually litigated his

challenge to the bag search in the context of claiming that his lawyer was ineffective for not

moving to suppress the fruits of that search. In rejecting that claim, the state courts

concluded that Easterling would not have prevailed on his proposed Fourth Amendment

claim because he did not have a reasonable expectation of privacy in the bag once he

handed it over to Diener. Easterling

, Nos. 2004 AP 934

‐ CR & 2005 AP 1224

‐ CR, slip op. at 3.

Easterling has not argued that it is fundamentally unfair to preclude him from relitigating

this conclusion, and thus issue preclusion prevents him from reasserting his objection to the

search of his bag in his § 1983 claim.

Easterling next argues that, as to the search of his apartment pursuant to the warrant,

the district court should not have granted summary judgment for the officers because, he

insists, he produced evidence that Officer Moeller falsely stated in his affidavit that Diener

had consented to a search of Easterling’s bag. An affidavit supporting a search warrant is

presumptively valid. Molina v. Cooper

, 325 F.3d 963, 968 (7th Cir. 2003). To rebut this

presumption, Easterling must show that Moeller made a false statement in his affidavit

intentionally, knowingly or with a reckless disregard for the truth, and that the false

statement was necessary to the judicial determination of probable cause. See id.; Beauchamp

v. City of Noblesville

, 320 F.3d 733, 742 (7th Cir. 2003). Easterling’s evidence at summary

judgment was inadequate to make this showing. In trying to establish that Diener did not

consent, Easterling submitted only a transcript of Diener’s testimony at his preliminary

hearing. But at that hearing the issue was the source of the bag, not whether Diener

consented to the search, and on the question of consent there is no evidence from Diener to

contradict Moeller’s representation in the affidavit. Moreover, as the district court noted, it

is immaterial whether Moeller misrepresented his authority to look in the bag if Easterling

no longer had an expectation of privacy. No evidence warrants setting aside the

presumption that Officer Moeller’s warrant affidavit was valid.

Easterling finally argues that the district court erroneously concluded that the police

officers were authorized to seize the two scraps of paper from his apartment whileNo. 10

‐ 3080 Page 4

executing the search warrant. The enumeration of items to be seized does not include

“scraps of paper with phone numbers,” and Easterling disagrees with the district court’s

conclusion that the searching officers still were permitted to seize the two papers under the

plain

‐ view doctrine. When executing a search warrant, an officer may seize an item not

listed in the warrant if its character as contraband or evidence is readily apparent. Russell v.

Harms

, 397 F.3d 458, 465 (7th Cir. 2005). Evidence may be lawfully seized under the plain

‐

view doctrine if the officer sees the evidence from a place where he has a legal right to be,

the officer has a lawful right of access to the evidence, and the officer had probable cause to

believe the item is linked to criminal activity. See Arizona v. Hicks

, 480 U.S. 321, 326 (1987);

Russell, 397 F.3d at 465. Easterling argues that the pieces of paper were not subject to the

plain

‐ view doctrine because a written name and phone number is not evidence of a crime.

But the district court correctly concluded that the officers had probable cause to seize the

papers; it was reasonable for the officers to believe that the handwritten phone numbers in

Easterling’s apartment three days after the robbery would help them to apprehend the other

suspect. Because the papers were subject to the plain view doctrine, the officers’ did not

exceed the scope of the search warrant by seizing them.

For the foregoing reasons, the judgment of the district court is AFFIRMED.