Date: 06-07-2018

Case Style:

Case Number: 17-2073

Judge: Gilbert

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Jason Craddock

Defendant's Attorney: Paul A. Farahvar

Description: This is a hornbook example of
how to waive an argument on appeal. One day, a confidential
informant told Officer William Hronopoulos that William
Wheeler had some guns in his Chicago apartment. This
informant had previously given information that led to suc‐
* Of the Southern District of Illinois, sitting by designation.
2 No. 17‐2073
cessful search warrants, so when Officer Hronopoulos received
the information about Wheeler, he (1) drove the informant
by Wheeler’s apartment to confirm the address; (2)
worked with the Cook County State’s Attorney to obtain a
search warrant for the premises; and (3) brought the informant
before a judge to testify about the information in the
warrant applications. The judge issued two search warrants:
one for each floor of the apartment. Later that night, the police
executed the warrants and found guns, ammunition, and
some heroin.
Wheeler faced several criminal charges relating to the
contraband, but a jury acquitted him because the evidence
did not prove beyond a reasonable doubt that the contraband
was his. So Wheeler and his wife—Joyce Thomas—
turned around and filed a lawsuit against both the city and
the officers involved in the arrest. Only two of their claims
survived until the summary judgment stage: (1) a Fourth
Amendment claim for an unlawful search and arrest pursuant
to 42 U.S.C. § 1983; and (2) a state‐law claim for malicious
prosecution.
When the defendants moved for summary judgment and
pointed out that there were no genuine disputes over any
material facts, Wheeler and Thomas brought a bizarre argument
in response: they claimed that the search warrant was
defective because the confidential informant’s tip was hearsay.
The district court correctly rejected that argument because
the defendants were not offering the informant’s tip
into evidence to prove the truth of the matter it asserted, so
the tip was not hearsay material. See Illinois v. Gates, 462 U.S.
213, 244–45 (1983). Ultimately, the district court granted
summary judgment in favor of the defendants because there
No. 17‐2073 3
was probable cause for the search, arrest, and prosecution
via the informant’s tip.
Wheeler and Thomas brought this appeal, but they make
an irrational argument: they now say that there is a disputed
fact as to whether the confidential informant existed or gave
the tip at all, so (1) both the seizure of the contraband and
the arrest were the fruits of an illegal search; and (2) there
was accordingly no probable cause for Wheeler’s prosecution.
Although we review a district court’s decision to grant
summary judgment de novo and summary judgment is not
appropriate if there are any genuine disputes as to any material
facts, Valenti v. Lawson, 889 F.3d 427, 428 (7th Cir. 2018)
(citing Dunn v. Menard, Inc., 880 F.3d 899, 905 (7th Cir. 2018))
(further internal citations omitted), parties cannot conjure up
brand new legal theories on appeal like this. Failing to bring
an argument to the district court means that you waive that
argument on appeal. United Cent. Bank v. Davenport Estate
LLC, 815 F.3d 315, 318 (7th Cir. 2016) (internal citation omitted);
Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir.
2012). And this case presents an egregious violation of that
rule: not only did Wheeler and Thomas fail to argue below
that the confidential informant did not exist, they tacitly
admitted that the informant existed by arguing that his
statements were hearsay.
Wheeler also argues that the district court erred by not
addressing their supposed Brady claim: whether the officers’
failure to procure any fingerprint evidence—even though
Wheeler never requested that evidence during his criminal
proceedings—violated Wheeler’s due process rights. Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d
215 (1963); see also Saunders‐El v. Rohde, 778 F.3d 556, 561–62
4 No. 17‐2073
(7th Cir. 2015) (explaining the elements of a Brady claim). But
Wheeler waived this argument too because the amended
complaint did not allege a Brady claim. The amended complaint
did mention a lack of fingerprint evidence, but only in
the sense that it (somehow) showed a lack of probable cause
for Wheeler’s arrest and prosecution. And even if the district
court did miss a tangible Brady claim—which it did not—
Wheeler and Thomas certainly never brought that to the
court’s attention. So that argument is also waived. Poullard v.
McDonald, 829 F.3d 844, 855 (7th Cir. 2016) (internal citation
omitted).
Rules exist for a reason. Rules are especially important
for practicing attorneys. And rules on how to bring an appeal
are critical to the proper functioning of our judiciary: a
case must be fully fleshed out at the district court level before
an appellate court can accurately review that case.
Wheeler and Thomas are no exception to that rule, so we
must ratify the judgment of the district court.

Outcome: AFFIRMED

Plaintiff's Experts:

Defendant's Experts:

Comments: