On April 10, 2023, the Seventh Circuit Court of Appeals decided Berger v. Wood Cnty.[i], which serves as excellent review of the law related false arrest and consent to search under the Fourth Amendment.  The relevant facts of Berger are as follows:

In May 2020, Wood County sheriff’s deputies responded to a 911 call from Berger’s then-girlfriend, who told them that she and her son were hiding outside after Berger, who was armed with a gun, had threatened to harm two of her acquaintances in a nearby town. She also stated that Berger had threatened her and her son. Law enforcement arrived and located Berger’s girlfriend and son outside; she told them that Berger had choked her. Police officers then established a safety perimeter around Berger’s property. Deputy Brandon Christianson spoke with Berger by cellphone and asked to meet with Berger. Berger said he had been drinking and was in bed, but shortly thereafter walked outside with his hands up, inviting police to “come on over.”

After searching Berger for weapons, Christianson spoke with him outside. Berger admitted that he was angry with two people who had threatened him: he had told them by phone that he was going to “kick” their “ass[es].” Berger stated that he had gone to his truck but decided not to leave because he had been drinking. He denied bringing a gun to the truck but confirmed that he had guns in the house. Berger also told Christianson that his girlfriend, who had lived with him for five years, had kicked him in the face when he tried to kiss her, so he had “shoved her back on the couch.”

Berger then invited the deputies inside and offered to show them his guns, but Christianson said they should keep talking in the living room. Berger again stated that he “slam[med]” his girlfriend “back against the pillow,” and he admitted that he told her that if the people he was angry with came to their home, he would “put a bullet in them.” But he denied choking his girlfriend, stating he had “pushed” her head back.

Christianson then spoke with Berger’s girlfriend, who told him that during an argument Berger had choked her hard enough that she could not breathe and thought she was going to pass out. She also said that while Berger was in the bedroom, she had heard him threatening her acquaintances on the phone and loading a gun, which he later put down in the kitchen.

Deputy Eric Marten spoke separately with her son, who stated that when he came to investigate Berger yelling at his mother, he saw Berger choking her on the ground; when he asked Berger what he was doing, Berger backed off. He said he then heard Berger go into the back bedroom and threaten to shoot the acquaintances and saw Berger leave the house with a pistol and start his truck.

Christianson told Berger he was arresting him for strangulation and being armed while intoxicated. Christianson then asked Berger’s girlfriend if she had access to Berger’s guns. She replied, “we can go look,” and walked to the back bedroom with officers and her son, who identified the pistol in Berger’s closet and magazines on the dresser. Christianson took the pistol, a holster, and two magazines. Berger’s girlfriend was present the entire time and did not object to Christianson’s taking the items.

The State charged Berger with strangulation and suffocation, disorderly conduct, and intoxicated use of a firearm, each with a domestic abuse enhancer.[ii]

At the preliminary hearing on the criminal case, the trial court found there was probable cause to believe that Berger committed a felony and the case was bound over for further action.  However, later, Berger’s girlfriend refused to participate in the case and sent an affidavit stating that she did not consent to the search and lied about Berger strangling her.  The criminal case was dismissed.

Berger then filed suit in federal court and alleged the deputies unlawfully arrested him, unlawfully searched his home for the gun and unlawfully seized his gun under Fourth Amendment.  The district court granted summary judgment to the deputies and the county.  Berger appealed to the Seventh Circuit Court of Appeals.

The first issue on appeal was whether the deputies violated the Fourth Amendment when they arrested Berger for strangulation and the other charges.  The court stated

Probable cause exists if, considering the totality of the circumstances “at the time of the arrest,” a reasonable officer would have believed that Berger had committed a crime. See Abbott v. Sangamon County, 705 F.3d 706, 713-14 (7th Cir. 2013)(emphasis added). Thus, what happened after the arrest-including Berger’s girlfriend’s recantation and her brother’s letter-is irrelevant to our review. See Wheeler v. Lawson, 539 F.3d 629, 637 (7th Cir. 2008).[iii]

The court of appeals also noted that the presence of probable cause is “an absolute defense to false arrest and false imprisonment claims.”[iv]

The court then examined the Wisconsin strangulation statute.  It says that strangulation or suffocation occurs when a person “intentionally impedes the normal breathing or circulation of blood by applying pressure on the throat or neck” of another person.[v]

The court of appeals next examined the evidence available to the deputies on the scene.  Here, Berger’s girlfriend told a deputy that when Berger choked her, she could not breath and thought she would pass out.  Further, her son told the deputy that he saw Berger choking his mom.  The court stated

A report from one “reasonably credible witness or victim” can establish probable cause. Matthews v. City of East St. Louis, 675 F.3d 703, 706 (7th Cir. 2012).[vi]

At the time of the incident, there was no reason to doubt the credibility of the victim or her son.  In fact, Berger’s statement corroborated some of the information provided by the victim and her son.  The court of appeals stated, “no further investigation was required at this time,” as the deputies had probable cause to arrest Berger.[vii]

Therefore, because the deputies had probable cause to arrest Berger for strangulation, the false arrest claim failed and there was no need to examine the other charges.

The court next examined whether the deputies violated the Fourth Amendment when they searched for, and seized, Berger’s gun.  The court stated

A third party’s voluntary consent to a search or seizure eliminates the need for a warrant, as long as the party has authority to consent. See United States v. Ryerson, 545 F.3d 483, 487 (7th Cir. 2008); UnitedStates v. Vines, 9 F.4th 500, 509 (7th Cir. 2021), cert. denied, 142 S. Ct. 385 (2021).[viii]

Berger did not argue that his girlfriend lacked the authority to consent to the search of the house, as she lived there for five years and had joint access to the residence.  The affidavit later provided stated that the girlfriend did not consent to the search.  The court examined the facts on the record.  The trial court determined that when the deputies asked her about the gun, she told them “we can go look.”  She then escorted them into the bedroom and stood by without objection as they searched.  The court held that these facts establish that the consent was voluntary.

Therefore, the unlawful search and seizure claim failed, as the search was lawful under the Fourth Amendment because the deputies had voluntary consent to search.

Lastly, the court noted that summary judgment was appropriate for the county because Berger failed to identify an unconstitutional policy, custom or practice of the county that caused his violation.  Additionally, the plaintiff failed to establish an underlying constitutional violation on the part of the deputies so this claim must fail.

In conclusion, the court of appeals affirmed the grant of summary judgment for the deputies and the county on all claims.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] No. 22-2582 (7th Cir. Decided April 10, 2023 Non-argument)

[ii] Id. at 1-4

[iii] Id. at 6 (emphasis added)

[iv] Id.

[v] Id. (citing WIS. STAT. § 940.235(1))

[vi] Id. at 7 (emphasis added)

[vii] Id.

[viii] Id. (emphasis added)

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