                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                              Submitted August 19, 2019*
                               Decided August 20, 2019

                                        Before

                       FRANK H. EASTERBROOK, Circuit Judge

                       MICHAEL S. KANNE, Circuit Judge

                       DIANE S. SYKES, Circuit Judge

No. 19-1446

CHARLES BROWN,                                 Appeal from the United States District
    Plaintiff-Appellant,                       Court for the Eastern District of Wisconsin.

      v.                                       No. 17-CV-525

RACINE COUNTY and KEVIN J.                     David E. Jones,
KAZMIERSKI,                                    Magistrate Judge.
     Defendants-Appellees.

                                      ORDER

       A deputy sheriff stopped Charles Brown’s car and later searched his groin area
on the side of a highway, finding heroin. After pleading guilty in Wisconsin state court
to possession with intent to deliver heroin, Brown sued the deputy and Racine County
under 42 U.S.C. § 1983, contending that the stop and search violated the Fourth
Amendment. The magistrate judge, sitting by consent of the parties, entered summary
judgment against Brown. The judge reasoned that under Heck v. Humphrey, 512 U.S. 477

      *  We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-1446                                                                          Page 2

(1994), he must “assume” that the stop was valid, which rendered the search lawful as
incident to an arrest. Because the judge’s analysis of Heck was incorrect, we vacate and
remand for proceedings to assess the validity of the stop.

       We recount the facts about the car stop in the light most favorable to Brown. See
Matz v. Klotka, 769 F.3d 517, 520 (7th Cir. 2014). Deputy Kevin Kazmierski saw a car
with a partially obstructed license plate and, after running a search of the plate,
discovered that the registered owner had a suspended license. Believing that the owner
could also be the current driver, Kazmierski pulled the car over. The driver was not the
registered owner. The driver told Kazmierksi that she had recently bought the car and
had not yet transferred the title to her name. Brown was a passenger in the car.

       The driver’s answer did not end the car stop. Kazmierski swears that when he
approached the car, he smelled an “overpowering odor” of air freshener. In his
experience, “[a]ir fresheners are frequently used as a masking agent to hide the odor of
drugs.” Because of the air freshener, Kazmierski asked the occupants for identification,
which they supplied, and he then ran background checks. The checks revealed that they
had drug-related convictions. With this added information, Kazmierski prolonged the
stop further to call for a police dog to sniff the car. While waiting for the canine unit, he
had Brown and the driver stand between the squad car and a concrete barrier. About 10
minutes later, the canine unit arrived. It alerted to drugs in the car.

        Based on the dog’s alert, Kazmierski patted down Brown. According to Brown,
Kazmierski “grabbed, squeezed, and manipulated the front groin area of [Brown’s]
pants” for two or three minutes. During the pat-down, Kazmierski felt a hard object
near Brown’s groin. Kazmierski pulled the waist of the pants forward, and another
officer reached inside Brown’s thermal underwear and retrieved 200 grams of heroin.
Brown ultimately pleaded guilty to possessing more than 50 grams of heroin.

        After Brown sued Kazmierski and the county, the judge allowed him to proceed
on two claims: (1) Kazmierski conducted an unreasonable seizure and search of Brown
in violation of the Fourth Amendment, and (2) the county had a policy or custom of
conducting unreasonable strip searches. Later, the judge entered summary judgment in
favor of the defendants. He first reasoned that based on Heck “this Court must assume
that [the car stop] complied with the Fourth Amendment.” For “[i]f this Court
concludes that the initial Terry stop or arrest were unlawful, it would necessarily
undermine Mr. Brown’s criminal conviction for the 200 grams of heroin he possessed
during the incident.” Based on the assumption that the seizure was lawful, the judge
No. 19-1446                                                                          Page 3

concluded that the search was reasonable because it was incident to a valid arrest and
Brown’s private parts were not exposed to onlookers. Finally, he ruled that Brown had
not put forth evidence that the county had an unlawful custom of searches in public.

        On appeal, Brown argues that the judge misapplied Heck to his Fourth
Amendment claim by assuming that the car stop was proper. We agree. Heck holds that
if “the plaintiff's action, even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action should be allowed to
proceed, in the absence of some other bar to the suit.” 512 U.S. at 487. Brown’s criminal
judgment is based, not on the car stop or evidence derived from it, but on his guilty
plea. And Brown’s Fourth Amendment claim does not challenge the validity of that
plea. Thus, an invalid seizure (and search incident to it) would not necessarily imply that
his conviction was unlawful. See Wallace v. Kato, 549 U.S. 384, 393–94 (2007); Rollins v.
Willet, 770 F.3d 575, 576 (7th Cir. 2014) (reasoning that since there was no trial, “[a]
finding that the defendant was illegally seized—the finding he seeks in this suit—
would therefore have no relevance to the validity of his guilty plea and ensuing
conviction”); Covey v. Assessor of Ohio Cty., 777 F.3d 186, 197 (4th Cir. 2015) (“[A] civil-
rights claim does not necessarily imply the invalidity of a conviction or sentence if (1)
the conviction derives from a guilty plea rather than a verdict obtained with unlawfully
obtained evidence and (2) the plaintiff does not plead facts inconsistent with guilt.”)

       On remand, the judge will need to resolve the parties’ dispute about the
reasonableness of Kazmierski’s seizure of Brown (the impermissibility of which could
also invalidate the search incident to it). We decline to decide the matter in the first
instance. See Singleton v. Wulff, 428 U.S. 106, 121 (1976); Metro. Milwaukee Ass’n of
Commerce v. Milwaukee Cty., 325 F.3d 879 (7th Cir. 2003). Although we may resolve an
issue left open by the district court “where the proper resolution is beyond any doubt”
or “injustice might otherwise result,” no one contends those circumstances are present
here. Singleton, 428 U.S. at 121 (quoting Hormel v. Helvering, 312 U.S 552, 557 (1941)).

       Finally, Brown does not challenge the judge’s conclusion that he failed to present
evidence that Racine County had a custom or policy of strip searching individuals in
public. Because the county can be liable only if constitutional violations derive from
such a policy, see Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694–95 (1978), the judge
properly entered summary judgment in favor of the county.
No. 19-1446                                                                Page 4

       Accordingly, we AFFIRM the district court’s entry of summary judgment in
favor of Racine County. We VACATE the judgment on Brown’s Fourth Amendment
claim against Kazmierski and REMAND for further proceedings.
