                             In the

 United States Court of Appeals
               For the Seventh Circuit

No. 07-2765

L ARRY D. B EST, JR.,
                                                Plaintiff-Appellant,
                                 v.

C ITY OF P ORTLAND, et al.,
                                               Defendant-Appellee.



             Appeal from the United States District Court
      for the Northern District of Indiana, Fort Wayne Division.
                No. 03 C 402—William C. Lee, Judge.


S UBMITTED N OVEMBER 13, 2008  —D ECIDED F EBRUARY 3, 2009





  The caption in the district court listed the Portland Police
Department as a defendant, but a police department is not a
suable entity under § 1983. See Chan v. Wodnicki, 123 F.3d 1005,
1007 (7th Cir. 1997); West v. Waymire, 114 F.3d 646, 646-47
(7th Cir. 1997). We have adjusted the caption accordingly.

     After examining the briefs and the record, we have con-
cluded that oral argument is unnecessary. Thus, the appeal
is submitted on the briefs and the record. See F ED . R. A PP . P.
34(a)(2).
2                                                No. 07-2765

    Before M ANION, W ILLIAMS, and S YKES, Circuit Judges.
  W ILLIAMS, Circuit Judge. In this appeal we must deter-
mine the preclusive effect in a federal civil suit of the
denial of a suppression motion in an earlier Indiana
state criminal case that never reached the merits of the
criminal charges. The denial of the suppression motion
was affirmed in an interlocutory appeal, but the
affirmance was followed by a motion in the trial court
to reconsider based on new evidence. The trial court
never ruled on that second motion because the govern-
ment dismissed the prosecution. Applying Indiana law,
as we must under 28 U.S.C. § 1738, we hold that the
denial of the suppression motion does not have later
preclusive effect because it was an interlocutory ruling
that was never subsumed within a final judgment on the
merits. We also hold that the use of a criminal defendant’s
statements at a suppression hearing held after charges
are initiated constitutes use in a “criminal case,” and can
be the basis of a valid Fifth Amendment claim.


                     I. BACKGROUND
  Larry Best was charged in Indiana state court with
possession of methamphetamine and possession with
intent to distribute methamphetamine. The evidence
against Best came from searches of two homes: one
based on a warrant and one with the consent of the home-
owner. Best moved to suppress the evidence, arguing
that both searches violated the Fourth Amendment, but
the trial court denied his motion. Under Indiana law, a
defendant may immediately appeal the denial of a sup-
No. 07-2765                                                  3

pression motion if the trial court certifies the appeal and
the court of appeals accepts jurisdiction. See IND. R. A PP. P.
14(B); State v. Foy, 862 N.E.2d 1219, 1223 (Ind. Ct. App.
2007). Best took that route, and the court of appeals
affirmed. Best v. State, 821 N.E.2d 419 (Ind. Ct. App. 2005).
After his case returned to the trial court, Best deposed
Officer Judson Wickey, who had led the searches. Best
believed that Wickey’s deposition revealed new informa-
tion that would support suppression of the evidence, so
he filed a motion to reconsider his original motion to
suppress. Before the court ruled on that motion, though,
the prosecutor dropped the charges against Best.
  While Best’s criminal case was proceeding, he filed a
civil suit in federal court under 42 U.S.C. § 1983 naming
the City of Portland, the Portland Police Department,
and four police officers as defendants, claiming that
the searches and prosecution violated his constitutional
rights. The district court stayed Best’s civil suit while the
criminal trial progressed in state court. See Wallace v. Kato,
549 U.S. 384, 393-94 (2007). After the prosecutor dismissed
the criminal case, the district court lifted the stay, the
parties began to take discovery, and the district court
granted summary judgment for all defendants on all of
Best’s claims. The court granted summary judgment for
the police department and the city because Best con-
ceded that he had no evidence of a policy or practice of
depriving citizens of their constitutional rights. The court
granted summary judgment for the officers on Best’s
Fourth Amendment claims based on collateral estoppel.
According to the district court, the state-court ruling on
the suppression motion and its affirmance on appeal
4                                                   No. 07-2765

barred Best from relitigating the constitutionality of the
searches in federal court. The district court also held
that Best’s Fifth Amendment right against self incrimina-
tion could not have been violated because the case was
dismissed before it went to trial.


                       II. ANALYSIS
   We review the district court’s grant of summary judg-
ment de novo. See Miller v. American Airlines, Inc., 525
F.3d 520, 523 (7th Cir. 2008). Summary judgment is ap-
propriate when there is no genuine issue as to any
material fact and the moving party is entitled to judg-
ment as a matter of law. FED . R. C IV. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986); Miller, 525 F.3d at 523.
At the outset, we note that we cannot consider Best’s
argument that, despite his concession to the contrary in
the district court, he did present sufficient evidence of a
policy or practice by the city of depriving citizens of their
constitutional rights. See Monell v. Dept. of Social Services,
436 U.S. 658 (1978). As we have explained, “attorneys
speak for their clients in court, and once a position is
announced, backpedaling on appeal cannot be allowed.”
Miller v. Willow Creek Homes, Inc., 249 F.3d 629, 631 (7th
Cir. 2001). We consider Best’s other arguments below.


A. Best’s Fourth Amendment Claims
  First, Best argues that the district court erred in its
ruling on collateral estoppel. He begins by renewing an
argument that he made to the district court: by not raising
No. 07-2765                                                  5

collateral estoppel until their motion for summary judg-
ment, the officers waived the defense. Collateral estoppel
is an affirmative defense that must ordinarily be
included in the defendant’s answer, see F ED. R. C IV. P. 8(c),
but “a delay in asserting an affirmative defense waives
the defense only if the plaintiff was harmed as a result.”
Curtis v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005). The
district court called Best’s argument that he was harmed
by the delay a “technical argument” and did not rule on
it, reasoning that it had the power to raise the issue of
collateral estoppel on its own. See Kratville v. Runyon, 90
F.3d 195, 198 (7th Cir. 1996). Indeed, a district court can
raise an affirmative defense sua sponte when “a valid
affirmative defense is so plain from the face of the com-
plaint that the suit can be regarded as frivolous.” Walker v.
Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002). But
we question whether a ruling on an issue can be
described as having been made “sua sponte” when a party
has actually raised the issue. In any event, as explained
below, collateral estoppel does not bar Best’s Fourth
Amendment claims. And since collateral estoppel is not
a valid defense, we need not consider the defendants’
delay in raising it.
  The district court began its analysis by citing our
opinion in Adair v. Sherman, 230 F.3d 890 (7th Cir. 2000), for
the four elements that must be met for a claim to be
collaterally estopped. Adair, however, addressed the
collateral estoppel effect of a federal court ruling in a
later federal court case. To determine the collateral
estoppel effect of a state court ruling in a later federal
court case, the district court should have used Indiana’s
6                                               No. 07-2765

law of collateral estoppel. See 28 U.S.C. § 1738; In re
Catt, 368 F.3d 789, 790-91 (7th Cir. 2004). Indiana law on
collateral estoppel is similar to federal law, but it is not
identical.
  Under Indiana law, collateral estoppel “ ‘bars subse-
quent litigation of an issue necessarily adjudicated in a
former suit if the same issue is presented in the subse-
quent suit.’ ” Bourbon Mini-Mart, Inc. v. Gast Fuel &
Services, Inc., 783 N.E.2d 253, 257 (Ind. 2003) (quoting
Shell Oil Company v. Meyer, 705 N.E.2d 962, 968 (Ind. 1998)).
Collateral estoppel requires a “final judgment on
the merits” in the first suit. Sweeney v. State, 704 N.E.2d
86, 94 (Ind. 1998). A court asked to apply collateral
estoppel must “determine what the first judgment decided
and then examine how that determination bears on the
second case.” Sullivan v. American Cas. Co. of Reading, Pa.,
605 N.E.2d 134, 139 (Ind. 1992).
  In this case the officers argue, and the district court
held, that the legality of the searches was necessarily and
finally adjudicated in Best’s criminal prosecution and
cannot be relitigated. But this argument ignores the
preliminary nature of the ruling on Best’s pretrial suppres-
sion motion. Under Indiana law, “rulings on pretrial
motions are not necessarily final.” Joyner v. State, 678
N.E.2d 386, 393 (Ind. 1997). “ ‘[A] ruling on a pretrial
motion to suppress is not intended to serve as the final
expression concerning admissibility.’ ” Id. (quoting Gajdos
v. State, 462 N.E.2d 1017, 1022 (Ind. 1984)). The court
was free to reconsider its earlier ruling on the pretrial
suppression motion at any time before the evidence was
No. 07-2765                                                   7

offered at trial. Id. In fact, Best asked the court to do
just that before the prosecutor dismissed the case.
  The officers respond that Best could have presented
earlier the new evidence that he presented in his second
motion. But under Indiana law, Best was not required to
do that. He was free to file a later suppression motion
based on new evidence, id., and he did so. In fact, to
preserve the issue for another appeal, Best would have
been required to renew his objection when the evidence
was offered at trial. Jackson v. State, 735 N.E.2d 1146, 1152
(Ind. 2000); see also Parker v. State, 697 N.E.2d 1265, 1267
(Ind. Ct. App. 1998) (reversing conviction because
evidence was seized illegally even though court had
earlier affirmed denial of motion to suppress in an inter-
locutory appeal). Thus, the suppression ruling was not
final because it was open to reconsideration—both by
the trial court on Best’s renewed motion and during a
second appeal if he was convicted.
  The ruling lacks preclusive effect for another reason:
because the prosecutor voluntarily dismissed the case,
there was no “final judgment on the merits,” as collateral
estoppel requires. Had the case terminated with a final
judgment of conviction, the denial of Best’s suppression
motion would have preclusive effect. See Doe v. Tobias,
715 N.E.2d 829, 830 (Ind. 1999) (conviction has preclusive
effect on “issues that were defended vigorously in
the criminal case”); Starzenski v. City of Elkhart, 87 F.3d
872, 877 (7th Cir. 1996); Studio Art Theatre of Evansville, Inc.
v. City of Evansville, 76 F.3d 128, 130-31 (7th Cir. 1996). But
under Indiana law, a prosecutor may voluntarily dismiss
8                                               No. 07-2765

an indictment or information before trial for any reason
and without court approval. See IND. C ODE § 35-34-1-13;
Willoughby v. State, 660 N.E.2d 570, 577 (Ind. 1996). The
case thus ends with no merits judgment by the court.
Consequently, when a prosecutor dismisses a case fol-
lowing a ruling on a suppression motion and refiles the
case, the ruling in the first case does not foreclose recon-
sideration of the issue in the second one. Joyner, 678
N.E.2d at 393-94. As the Indiana Supreme Court has
explained, “the preliminary ruling on the defendant’s
motion to suppress would have been subject to modifica-
tion at trial.” Id. at 393. This reasoning applies with equal
force to the ruling in Best’s case. Had the prosecutor not
voluntarily dismissed, the suppression ruling could have
been reexamined by the trial court, and again in a
second appeal, based on new evidence. See, e.g., Parker,
697 N.E.2d at 1267. But because the prosecutor dismissed
the case while Best’s motion to reconsider was pending,
there is no merits judgment. Accordingly, the suppression
ruling has no preclusive effect in later litigation. The
district court should not have granted summary judg-
ment to the officers on Best’s Fourth Amendment claims
on this basis.
  In so holding, we express no opinion about the merits
of Best’s Fourth Amendment claims. Ordinarily, we may
affirm a grant of summary judgment on any alternative
basis found in the record as long as that basis was ade-
quately considered by the district court and the
nonmoving party had an opportunity to contest it. Cardoso
v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005).
However, there is no such alternative basis here. Best did
No. 07-2765                                                9

not have the opportunity to present the merits of his
Fourth Amendment claim because collateral estoppel was
the only argument that the officers raised in support of
summary judgment. Therefore, a remand for further
proceedings is appropriate. See Smurfit Newsprint Corp. v.
Southeast Paper Mfg., 368 F.3d 944, 954 (7th Cir. 2004) (“the
non-moving party [must have] had an opportunity to
submit affidavits or other evidence and contest the issue.”).


B. Best’s Fifth Amendment Claim
  Best also contests the district court’s ruling that his
Fifth Amendment right against self incrimination
was not violated because the case did not go to trial. In
the district court Best argued that his Fifth Amendment
rights were violated because statements elicited from
him in violation of Miranda v. Arizona, 384 U.S. 436 (1966),
were used against him at the suppression hearing, which
led to his continued confinement awaiting trial. As the
district court understood things, any statements Best
made to police were never used against him in a
“criminal case,” meaning a trial, because the prosecutor
dismissed the charges before trial. See Chavez v. Martinez,
538 U.S. 760, 772-73 (2003) (plurality opinion). But we
have not adopted the narrow view that use in a “crim-
inal case” means “at trial.” See Sornberger v. City of Knox-
ville, 434 F.3d 1006, 1026-27 (7th Cir. 2006). In Sornberger,
we held that the use of a suspect’s unwarned statements
at an arraignment, probable cause hearing, and bail
hearing constituted use of the statements in a “criminal
case” in a manner sufficient to implicate the self-incrimina-
10                                           No. 07-2765

tion clause of the Fifth Amendment. Id.; accord Higazy v.
Templeton, 505 F.3d 161, 173 (2d Cir. 2007). Here, Best
alleges that statements he made were used in violation
of the Fifth Amendment long after charges were initiated
against him, at a suppression hearing. Under Sornberger,
that is enough to allege that the statements were used in
a “criminal case” in violation of the Fifth Amendment so
the district court should not have granted summary
judgment to the officers on the basis that his unwarned
statements were not used against Best. And as with the
Fourth Amendment claims, there is not enough of a
record for us to affirm on an alternative basis, so we
remand without expressing any opinion on the merits
of Best’s Fifth Amendment claim.


                  III. CONCLUSION
  Accordingly, we A FFIRM the district court’s grant of
summary judgment to the city, we R EVERSE the court’s
grant of summary judgment to the officers on Best’s
claims under the Fourth and Fifth Amendments, and we
R EMAND for proceedings consistent with this opinion.




                          2-3-09
