                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-1318
LARRY J. LEAF, individually and as personal
representative of the estate of JOHN P. LEAF,
deceased, MARTHA A. LEAF, JOHN P. LEAF, et al.,
                                                Plaintiffs-Appellees,
                                 v.

RONALD SHELNUTT,
                                              Defendant-Appellant.

                          ____________
         Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
           No. 02 C 433—Larry J. McKinney, Chief Judge.
                          ____________
    ARGUED SEPTEMBER 21, 2004—DECIDED MARCH 18, 2005
                          ____________




  Before EASTERBROOK, RIPPLE and WILLIAMS, Circuit Judges.
  RIPPLE, Circuit Judge. Early in the morning of May 5, 2001,
Marion County Sheriff’s Deputy Ronald Shelnutt shot and
killed John Patrick Leaf. Members of Mr. Leaf’s family (“the
Leafs”) brought this action pursuant to 42 U.S.C. § 1983 and
Indiana state law for alleged constitutional violations and
other torts arising from this tragic event. The district court
granted in part and denied in part Deputy Shelnutt’s motion
for summary judgment. For the reasons set forth in the
2                                                No. 04-1318

following opinion, we now reverse the district court and
remand for further proceedings.


                              I
                     BACKGROUND
A. Facts
  On the night of May 4, 2001, John Patrick Leaf patronized
a bar in Indianapolis. When he left the bar, he turned over
his keys to a friend and took a taxicab to his home at 8863
Lake Nora West Drive, Apartment B, in the Lake Nora Arms
Apartments. When he arrived, he forced entry into his own
apartment.
  Around 1 a.m. on May 5, Dustin Kersey, Ryan Murphy and
Vito Sanders, residents of the Lake Nora Arms Apartments,
heard glass breaking in the direction of Mr. Leaf’s apart-
ment. The residents called out to see what was happening,
and the sounds of glass breaking stopped for a few minutes
and then resumed. When the sounds of glass breaking be-
gan again, the residents went to investigate. Kersey, Murphy
and Sanders arrived at the patio entrance to Mr. Leaf’s apart-
ment and saw a man trying to gain entrance to the apart-
ment. Mr. Leaf introduced himself to the residents and
explained that he lived in the apartment but did not have his
keys. The men had not met Mr. Leaf prior to that night.
They talked with Mr. Leaf briefly and then left. Murphy
later returned to Mr. Leaf’s apartment to make note of the
address and then called 911 from his own apartment at 1:10
a.m., but hung up before his call was answered.
  That night, Deputy Andrew Jacobs was working for the
Meridian Hills Police Department. Deputy Jacobs some-
times served as a special deputy for the Marion County
Sheriff’s Department and volunteered to respond to the in-
No. 04-1318                                                  3

complete 911 call on behalf of that department. Deputy
Jacobs responded to the call at Murphy’s apartment; he
arrived at around 1:22 a.m. Murphy told Deputy Jacobs that
the man he had seen breaking a window had claimed to be
the occupant of the apartment and had claimed that he did
not have his keys. According to Deputy Jacobs, Murphy also
said that the man at the apartment had been belligerent.
Deputy Jacobs did not know that the residents had shaken
hands with Mr. Leaf or that Mr. Leaf had introduced himself.
For two or three minutes, Deputy Jacobs spoke with
Murphy and the other residents who had seen Mr. Leaf.
  Deputy Jacobs then drove to Mr. Leaf’s apartment. There,
he observed the apartment from outside the fence that en-
closed a patio at the back of Mr. Leaf’s apartment. Deputy
Jacobs noticed that the patio door was open and that a win-
dow at the rear of the apartment was broken. He then walked
through the fence gate and into the patio area, where he
could see that the vertical blinds that hung at the apartment’s
patio doorway were moving. The blinds, hung inside the
apartment, were blowing outside. Deputy Jacobs pushed the
blinds aside to look into the apartment. He saw an item,
later identified as an ice chest, pushed up against the front
door. Deputy Jacobs testified that burglars sometimes will
obstruct all entries to a home except those through which
they enter and exit.
  At that point, Deputy Jacobs called for backup, and
Deputy Shelnutt responded. Deputy Jacobs stated in the call
that there was an open patio door and a broken window,
but did not specifically say that he believed there had been
a burglary. He continued to observe the apartment until 1:30
a.m., when Deputy Shelnutt arrived. Deputy Jacobs testified
that he told Deputy Shelnutt about the substance of his
conversation with the residents—specifically, that
4                                                 No. 04-1318

the residents had spoken with the man seen entering the
apartment and that they did not know whether that man
lived in the apartment.
  About one minute after Deputy Shelnutt arrived, the
officers entered the apartment. The deputies did not radio
to say they would be entering the apartment. In fact, once
Deputy Shelnutt responded to Jacobs’ call, neither Deputy
Jacobs nor Deputy Shelnutt made any radio communica-
tions with the police department until they radioed to report
that there had been a shooting.
  The officers entered the apartment with guns drawn,
using the tactical lights attached to the barrels of their guns
to illuminate the dark apartment. Neither officer knocked
before entering the apartment. However, Deputy Jacobs
testified in his deposition that he announced from outside
the apartment, “This is the Marion County Sheriff. Come
out now. Show yourself. This is the Marion County Sheriff.
Come out now. Show yourself.” R.147, Ex.7 at 155. Deputy
Shelnutt made no announcements. Deputy Jacobs testified
that he “could” have said, “Come out and make yourself
known,” but that he did not “recall” making such an an-
nouncement. R.147, Ex.7 at 155. Deputy Jacobs also said that
he did not announce that the officers would enter the
apartment. Deputy Shelnutt, however, testified at his dep-
osition that he recalled Deputy Jacobs announcing, “We will
be searching the apartment.” R.147, Ex.13 at 120.
  Once the officers entered the apartment, Deputy Shelnutt
noticed light coming from the front door, and concluded
that, before the front door was secured shut with the ice
chest, the front door had been kicked in and the door frame
broken. The officers searched the apartment, including the
bedroom, where they found Mr. Leaf lying naked and un-
covered on his bed, face up, with his eyes closed. Mr. Leaf
was breathing deeply. After finding Mr. Leaf on the bed but
No. 04-1318                                                  5

before waking him, Deputy Shelnutt conducted a search
lasting approximately three minutes, in order to determine
whether anyone was hiding; Deputy Jacobs remained in the
bedroom. Deputy Shelnutt checked the kitchen, two hall
closets, a bedroom closet and a bathroom. In the bedroom,
Deputy Shelnutt then approached the bed with his gun
drawn and the tactical lights illuminated, in order to awaken
Mr. Leaf. It is disputed whether Deputy Shelnutt actually
touched Mr. Leaf. Deputy Shelnutt did not “recall” touching
Mr. Leaf’s shoulder. R.147, Ex.13 at 160. Deputy Jacobs, on
the other hand, testified in his deposition that he saw
Deputy Shelnutt nudge Mr. Leaf. R.147, Ex.7 at 35, 177.
  At this point, the officers claim, Mr. Leaf jumped up from
the bed and lunged at Deputy Shelnutt, wielding a 15-inch
bowie knife. Deputy Jacobs did not remember which hand
Mr. Leaf used to wield the knife, but recalled that Mr. Leaf
waved the knife in a “figure eight” motion. R.147, Ex.7 at 178.
The officers told Mr. Leaf to drop the knife and shouted,
“Sheriff’s Department” or “Police.” R.147, Ex.7 at 188; R.147,
Ex.13 at 177, 178. When Mr. Leaf continued to advance
toward Deputy Shelnutt with the knife, Deputy Shelnutt
retreated a step or two into the bathroom. Deputy Shelnutt
then fired four shots at Mr. Leaf, hitting him three times.
Mr. Leaf died from the gunshot wounds.


B. District Court Proceedings
   On February 19, 2002, members of Mr. Leaf’s family ini-
tiated this action in Indiana state court pursuant to 42 U.S.C.
§ 1983 and Indiana state law. The Leafs named as defendants
Deputies Jacobs and Shelnutt in their individual capacities,
as well as Marion County Sheriff Jack Cottey and Meridian
Hills Town President Ed Perry in their official capacities.
The Leafs alleged that Deputy Shelnutt and Deputy Jacobs
6                                                     No. 04-1318

violated Mr. Leaf’s rights under the Fourth and Fourteenth
Amendments to the Constitution. In particular, the Leafs
claimed that the officers had unlawfully searched Mr. Leaf’s
apartment, that they had unlawfully seized him and that
both officers had deprived Mr. Leaf of life, liberty or prop-
erty without due process of law. The Leafs further asserted
that Deputy Shelnutt had used excessive force against
Mr. Leaf. They also advanced § 1983 claims for failure to in-
tervene on Mr. Leaf’s behalf against both Deputy Shelnutt
                      1
and Deputy Jacobs. On March 20, 2002, the defendants
removed the action to the United States District Court for
the Southern District of Indiana.
  In a motion filed July 21, 2003, the Leafs sought partial
summary judgment from the district court. They contended
that the officers had unlawfully seized Mr. Leaf. The officers
responded that they did not unlawfully seize Mr. Leaf and
asserted qualified immunity as a defense. In an order issued
October 14, 2003, the district court denied summary judg-
ment on the question of illegal seizure. The court concluded
that Mr. Leaf was seized while lying in his bed. Noting that
there was a “factual dispute about whether Shelnutt touched
or nudged Leaf . . . in an effort to wake him,” R.172 at 4, the
district court did not determine whether Deputy Shelnutt
touched Mr. Leaf. The court found that the fact that Mr. Leaf



1
  The Leafs also alleged claims of deliberate indifference and un-
constitutional policy, custom or practice against Sheriff Cottey
and Town President Perry. The Leafs asserted additional claims
for damages under Indiana law against Deputies Shelnutt and
Jacobs for trespass, false arrest, assault and battery and negligent
failure to follow Indiana law and the policies and procedures of
the Marion County Sheriff’s Department, and against Cottey and
Perry for negligent hiring, supervision and retention of Deputies
Shelnutt and Jacobs.
No. 04-1318                                                    7

“did not flee from the officers’ show of authority (or phy-
sical touching, if one occurred),” R.172 at 7, demonstrated
that a seizure had occurred. However, the court denied
summary judgment on the grounds that a trier of fact could
find that the seizure was “not unreasonable under the cir-
cumstances known to the officers at the time,” and that a
trier of fact could find that “the scope and method of the
seizure was reasonable under the circumstances.” R.172 at
11-12. The district court did not address the officers’ asser-
tion of qualified immunity. In November 2003, the Leafs
reached a settlement with Deputy Jacobs, and he was
released from the litigation.
  On January 24, 2004, the district court granted in part and
denied in part a motion for summary judgment made by
Sheriff Cottey and Deputy Shelnutt. Because Deputy Shelnutt
is the sole appellant in this appeal, we shall discuss the
district court’s order only as it applies to him.
  The district court denied summary judgment on what it
called “UNLAWFUL ENTRY AND SEARCH.” R.219 at 12.
The court determined that exigent circumstances justified
the officers’ warrantless entry into Mr. Leaf’s apartment.
However, the court found that the way in which the officers
entered may have violated the Constitution. The court ex-
plained that the Fourth Amendment requires law enforce-
ment personnel to knock on the door of a private dwelling
and to announce both their identity and their purpose
before entering. R.219 at 12-14. The district court found that
Deputies Shelnutt and Jacobs had announced their presence,
but the court found that a question of fact existed as to whether
Deputy Jacobs had announced, “We will be searching the
apartment,” prior to entering. R.219 at 14. The court also
found that a question of fact existed regarding whether, once
inside the apartment, Deputy Shelnutt behaved in an ob-
jectively unreasonable manner by searching the apartment
8                                                     No. 04-1318

and not announcing his identity. R.219 at 16-17. Therefore,
the district court denied Deputy Shelnutt’s motion for
summary judgment on the illegal search claims.
  The district court also denied summary judgment on the
excessive force claim because it could not determine as a
matter of law that Mr. Leaf posed a threat of death or ser-
ious bodily injury to Deputy Shelnutt. Because the district
court found fact issues precluding summary judgment on
the claims for illegal search, entry and seizure, it denied
Deputy Shelnutt summary judgment on the failure to in-
tervene claim. The district court granted Deputy Shelnutt’s
motion for summary judgment on the Leafs’ due process
claim.
  The district court then turned to Deputy Shelnutt’s as-
sertion of qualified immunity as a defense to “the claims for
unlawful entry, search and seizure, and excessive force.”
R.219 at 25. The district court found that underlying fact
                                      2
issues with respect to those claims prevented the court
from determining whether Deputy Shelnutt was entitled
to qualified immunity. R.219 at 25. Specifically, the court
stated that the “requirement of announcing prior to entry
has been clearly established, and a reasonable officer would
know that entering without announcing his purpose or
intent would violate the Fourth Amendment.” R.219 at 25.
Thus, a question of fact as to whether the officers had in fact
announced their purpose or intent prevented the court from
ruling on qualified immunity, “because whether the law
was violated depends on which version of the facts the jury
believes.” R.219 at 25.


2
  The district court briefly referred to its October 14, 2003 order,
noting that it had addressed the illegal seizure claim and had
denied summary judgment because it found “a jury must de-
termine whether Shelnutt’s . . . seizure of Leaf while he was in his
bed was reasonable.” R.172 at 18 n.3.
No. 04-1318                                                    9

  With respect to Deputy Shelnutt’s assertion of qualified
immunity for the Leafs’ excessive force claim, the district
court found that a jury would have to determine whether
Mr. Leaf had posed a threat of death or serious harm to
Deputy Shelnutt, and whether it was unreasonable for
Deputy Shelnutt to take more than one shot at Mr. Leaf;
“whether Shelnutt used excessive force is completely de-
pendant [sic] on which version of the facts the jury accepts.”
R.219 at 26. The court cited Seventh Circuit precedents
holding that, when an officer creates a dangerous situation
by conducting an unreasonable search or seizure, that
officer is stripped of qualified immunity against excessive
force claims arising from the situation the officer created.
R.219 at 26. Therefore, the district court concluded, a jury
also was entitled to consider whether Deputy Shelnutt’s
earlier unreasonable behavior rendered his actions inside
                                                       3
the apartment objectively unreasonable. R.219 at 27.


                               II
                        DISCUSSION
A. Standard of Review
   This court reviews de novo a district court’s denial of
summary judgment on qualified immunity grounds. See
Sullivan v. Ramirez, 360 F.3d 692, 696 (7th Cir. 2004). Sim-
ilarly, the question of whether an asserted federal right was
clearly established at the time of a claimed violation is a
question of law to be reviewed de novo on appeal. See Elder


3
  The district court also held that Deputy Shelnutt had state law
immunity against the Leafs’ claims for trespass, assault and bat-
tery and negligence, and granted him summary judgment on
those issues.
10                                                 No. 04-1318

v. Holloway, 510 U.S. 510, 516 (1994). Summary judgment is
appropriate when, construing all facts and drawing all
inferences in the light most favorable to the nonmoving
party, there is no genuine issue of material fact for a jury to
decide. See Sullivan, 360 F.3d at 696 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252-55 (1986)).


B. Qualified Immunity
  1.   Jurisdiction to Hear an Appeal from the Denial of
       Qualified Immunity
  We pause to address the issue of whether we have
jurisdiction to hear an appeal from the denial of qualified
immunity because it is a point of extreme conflict between
the parties. Ordinarily, a district court’s denial of summary
judgment is not appealable. See, e.g., Whitford v. Boglino,
63 F.3d 527, 530 (7th Cir. 1995). However, when a district
court has denied summary judgment on qualified immunity
grounds, an appellate court has jurisdiction to review the
denial of qualified immunity to the extent that the denial
turns on a question of law. See Mitchell v. Forsyth, 472 U.S.
511, 530 (1985). On the other hand, “a defendant, entitled to
invoke a qualified immunity defense, may not appeal a
district court’s summary judgment order insofar as that
order determines whether or not the pretrial record sets
forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515
U.S. 304, 319-20 (1995).
   This court may not reconsider the district court’s de-
termination that certain genuine issues of fact exist; such de-
terminations are unappealable because they are not “final
decisions” within the meaning of 28 U.S.C. § 1291. See
Johnson, 515 U.S. at 313. Thus, we may not make conclusions
about which facts the parties ultimately might be able to
establish at trial. Such conclusions concern the “sufficiency
No. 04-1318                                                      11

of the evidence” and are not properly before a court of
appeals considering the denial of qualified immunity. See id.
  However, when the outcome of a question of law—
for instance, whether a particular action violates the
Constitution—does not depend on the outcome of a dis-
puted factual question, we may review whether the district
court correctly determined the question of law that it con-
sidered. See Mitchell, 472 U.S. at 528. These are the “more
abstract issues of law” to which an appeal of the denial of
qualified immunity properly is limited. Johnson, 515 U.S. at
317. When conducting such a review, we “simply take,
as given, the facts that the district court assumed when it
denied summary judgment for that (purely legal) reason.”
Id. at 319.
   A defendant may appeal the denial of qualified immunity
with respect to particular claims even when he still will be
required to go to trial on a matter separate from the claims
for which he asserted qualified immunity. See Behrens v.
                                       4
Pelletier, 516 U.S. 299, 311-12 (1996). A plaintiff often seeks
relief for a single incident on multiple theories of liability.
When this occurs, the defendant does not lose his right to
appeal the denial of qualified immunity as to one theory of
liability even when he still will be required to go to trial on
another theory. As several of our sister circuits have recog-




4
  The right to qualified immunity “is a right to immunity from
certain claims, not from litigation in general; when immunity with
respect to those claims has been finally denied, appeal must be
available.” Behrens v. Pelletier, 516 U.S. 299, 312 (1996) (emphasis
in original).
12                                                   No. 04-1318
       5
nized, the term “claim” must be employed in this context
in a manner that is compatible with the unique, yet firmly
established, principles established by the Supreme Court
with respect to the doctrine of qualified immunity. Conse-
quently, in employing the term “claim” when determining
whether a defendant may invoke the defense of qualified
immunity, we must keep in mind that qualified immunity
is designed to ensure that a defendant does not stand trial
unnecessarily on an allegation that lacked a reasonable
grounding in established law at the time the act was
committed. We also must keep in mind that the defense of
qualified immunity is only effective when it is applied at a
meaningful level of generality. This requirement ensures
that a defendant will have to stand trial only when he could
reasonably anticipate that his conduct may give rise to
liability for damages. Defining “claim” in light of these
considerations quite naturally produces a different and
more narrow definition of the term “claim” than we would
encounter in other contexts such as res judicata. There, in
determining whether the same “claim” arose in earlier
litigation, “claim” has become a surrogate for the term
“cause of action,” and that term has been defined in turn to
include all theories of liability arising out of the same trans-




5
  International Action Center v. United States, 365 F.3d 20, 23-24
(D.C. Cir. 2004); Beier v. City of Lewiston, 354 F.3d 1058, 1063-64
(9th Cir. 2004).
No. 04-1318                                                       13
                         6
action or occurrence. See Car Carriers, Inc. v. Ford Motor Co.,
789 F.2d 589, 592-94 (7th Cir. 1986).
  Any other course would frustrate the Supreme Court’s
directive that an appeal of the denial of qualified immunity
“cannot be foreclosed by the mere addition of other claims
to the suit.” See Behrens, 516 U.S. at 312; see also id. (“If the
district court rules erroneously, the qualified-immunity
right not to be subjected to pretrial proceedings will be
eliminated, so long as the plaintiff has alleged (with or
without evidence to back it up) violation of one ‘clearly
established’ right . . . .”); see also International Action Center
v. United States, 365 F.3d 20, 23-24 (D.C. Cir. 2004); Beier v.
City of Lewiston, 354 F.3d 1058, 1063-64 (9th Cir. 2004) (hold-
ing that it would be contrary to Behrens if “any plaintiff
alleging multiple claims arising under a single constitu-
tional provision would be able to circumvent a qualified
immunity appeal as long as one of those claims has some
merit”).




6
 Cf. 18 Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 4402 (2d ed. 2002):
      Foreclosure of matters that never have been litigated has
      traditionally been expressed by stating that a single “cause
      of action” cannot be “split” by advancing one part in a first
      suit and reserving some other part for a later suit. The entire
      cause of action was said to “merge” in a judgment for the
      plaintiff, leaving a new cause of action on the judgment, or
      to be subject to the “bar” of a judgment for the defendant.
      There is now a growing tendency, spurred by the vigorous
      advocacy of Allan Vestal, to substitute the word “claim” for
      the cause of action phrase.
Id.
14                                                   No. 04-1318

    2.   The Qualified Immunity Framework
  Government officials performing discretionary functions
                                             7
enjoy a qualified immunity from suit. See Anderson v.
Creighton, 483 U.S. 635, 638-39 (1987). Qualified immunity
“shield[s] [officers] from civil damages liability as long as
their actions could reasonably have been thought consistent
with the rights they are alleged to have violated.” Id. at 638.
When qualified immunity applies, a defendant is not merely
entitled to a defense from liability; he is entitled not to stand
trial. See Mitchell, 472 U.S. at 526.
  In determining whether qualified immunity will apply to
shield a defendant from suit, a court undertakes a two-part
inquiry, see Saucier v. Katz, 533 U.S. 194, 200 (2001), to assess
“the objective reasonableness of an official’s conduct, as
measured by reference to clearly established law,” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). First, the court must ask
the threshold question: “Taken in the light most favorable
to the party asserting the injury, do the facts alleged show
the officer’s conduct violated a constitutional right?” Saucier,
533 U.S. at 201. As the Supreme Court has pointed out, “to
deny summary judgment any time a material issue of fact
remains . . . could undermine the goal of qualified immu-
nity.” Id. at 202. Therefore, “[i]f no constitutional right
would have been violated were the allegations established,
there is no necessity for further inquiries concerning
qualified immunity.” Id. at 201.

7
  Because of the significant policies served by qualified immu-
nity, a court should determine early in the proceedings whether
qualified immunity will apply. See Saucier v. Katz, 533 U.S. 194,
201 (2001); see also Donovan v. City of Milwaukee, 17 F.3d 944, 947
(7th Cir. 1994) (noting that “few individuals will enter public
service if such service entails the risk of personal liability for
one’s official decisions”).
No. 04-1318                                                     15

  If the facts alleged make out a constitutional violation,
then a court must determine “whether the right was clearly
established.” Id. This inquiry is a specific one: “The relevant,
dispositive inquiry is whether it would be clear to a reason-
able officer that the conduct was unlawful in the situation
                 8
he confronted.” Id. at 202 (citing Wilson v. Layne, 526 U.S.
603, 615 (1999)). A right is clearly established when “[t]he
contours of the right [are] sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.” Anderson, 483 U.S. at 640. The action’s unlawfulness
must be “apparent” from pre-existing law. Id.
  The district court denied Deputy Shelnutt qualified
immunity because it found that questions of fact existed
respecting four actions that he took on May 5, 2001: (1) his
                                 9
entry into Mr. Leaf’s apartment; (2) his subsequent search
of Mr. Leaf’s apartment; (3) his conduct toward Mr. Leaf
while Mr. Leaf was lying on the bed; and (4) the manner in
which he shot Mr. Leaf. The district court also denied



8
  When determining whether a constitutional right has been
violated requires an analysis of the reasonableness of an officer’s
conduct—for instance, in the Fourth Amendment search context—
the reasonableness standard for the constitutional violation is
distinct from the qualified immunity standard. See Anderson v.
Creighton, 483 U.S. 635, 643-44 (1987). Thus, “even if a court were
to hold that [an] officer violated the Fourth Amendment by con-
ducting an unreasonable, warrantless search, Anderson still oper-
ates to grant officers immunity for reasonable mistakes as to the
legality of their actions.” Saucier, 533 U.S. at 206.
9
   In their complaint, the Leafs did not differentiate between
unlawful entry and illegal search; however, the district court in
its analysis found questions of fact pertaining to both the entry
and the search and denied summary judgment based on both of
those questions of fact. Therefore, we address the entry and the
ensuing search separately.
16                                                 No. 04-1318

Deputy Shelnutt qualified immunity for the excessive force
claim on the ground that, because the first three actions
listed may have violated Mr. Leaf’s constitutional rights,
Deputy Shelnutt may have created the need for force in such
a way that his ultimate shooting of Mr. Leaf “was tainted by
prior unconstitutional acts.” Tom v. Voida, 963 F.2d 952, 956
(7th Cir. 1992); see also, e.g., Sledd v. Lindsay, 102 F.3d 282,
287-88 (7th Cir. 1996); Yates v. City of Cleveland, 941 F.2d 444,
447 (6th Cir. 1991).


C. Deputy Shelnutt’s Entry into the Apartment
  We first address the question of whether Deputy Shelnutt
possesses qualified immunity for his entry into Mr. Leaf’s
apartment. The district court found that there was a ques-
tion of fact whether Deputy Shelnutt had announced his
purpose before entering the apartment. The district court
also determined that the requirement of “announcing prior
to entry has been clearly established.” R.219 at 25. We re-
spectfully disagree with the conclusion of the district court.
The facts of this case, construed in the light most favorable
to the Leafs, do not allege a constitutional violation with
respect to Deputy Shelnutt’s entry. Accordingly, Deputy
Shelnutt is entitled to qualified immunity for his entry into
Mr. Leaf’s apartment and for the manner in which the entry
was accomplished.
  Taking up the first question in the qualified immunity
inquiry, we ask whether the facts, taken in the light most
favorable to the Leafs, allege a constitutional violation. See
Saucier, 533 U.S. at 201. A warrantless entry into a private
home constitutes a search and presumptively is unreason-
able under the Fourth Amendment. United States v. Rivera,
248 F.3d 677, 680 (7th Cir.) (citing Payton v. New York, 445
U.S. 573, 585-86 (1980)), cert. denied, 534 U.S. 923 (2001).
No. 04-1318                                                      17

However, a warrantless search is permissible “when police
have a reasonable belief that exigent circumstances require
immediate action and there is no time to secure a warrant.”
United States v. Lenoir, 318 F.3d 725, 730 (7th Cir.), cert. denied,
540 U.S. 841 (2003). For instance, a warrantless search is
permitted based on exigent circumstances “when the police
‘reasonably fear[] for the safety of someone inside the prem-
ises.’ ” United States v. Jenkins, 329 F.3d 579, 581 (7th Cir.
2003) (quoting United States v. Richardson, 208 F.3d 626, 629
(7th Cir.), cert. denied, 531 U.S. 910 (2000)). To determine
whether there were exigent circumstances, we must “anal-
yze the situation from the perspective of the officers at the
scene” and must ask whether the officers had “an objectively
reasonable belief that exigent circumstances existed.” United
States v. Marshall, 157 F.3d 477, 482 (7th Cir.), cert. denied, 525
U.S. 1045 (1998).
  Based on these principles, we agree with the district court’s
analysis of the officers’ entry. As the district court pointed
out, the broken window and open patio door supported an
objectively reasonable belief that a burglary was occurring
and that people inside the apartment were in danger.
Furthermore, a 911 call had been placed, and, although the
call itself was not answered, Deputy Jacobs learned from the
caller, Murphy, that a man had been seen forcing entry into
the apartment. We have held that a 911 call itself “can be
enough to support [a] warrantless search[] under the exigent
circumstances exception, particularly where . . . the caller
identified himself.” Richardson, 208 F.3d at 630. Under the
circumstances known to them at the time, Deputy Shelnutt
and Deputy Jacobs had a reasonable basis to believe that an
emergency situation justified a warrantless search of Mr.
18                                                       No. 04-1318
                     10
Leaf’s apartment. Thus, on the record before us, we must
conclude that the officers’ entry was justified by exigent
circumstances.
  We next consider whether the officers’ entry into Mr. Leaf’s
apartment was rendered unreasonable as a result of the
officers’ failure to announce their purpose before entering.




10
   The district court did not address whether probable cause
existed to justify the officers’ entry. The cases on which the dis-
trict court primarily relied in its analysis of exigent circumstances,
United States v. Jenkins, 329 F.3d 579 (7th Cir. 2003), and United
States v. Richardson, 208 F.3d 626 (7th Cir.), cert. denied, 531 U.S.
910 (2000), do not address the requirement of probable cause
separately from the existence of exigent circumstances. However,
other cases of this court do apply the requirement of probable
cause even in exigent circumstances. See, e.g., United States v. Rivera,
248 F.3d 677, 680 (7th Cir.) (holding that a warrantless search is
constitutional “where there is probable cause and exigent
circumstances create a compelling need for official action and
insufficient time to secure a warrant”), cert. denied, 534 U.S. 923
(2001); United States v. Marshall, 157 F.3d 477, 481 (7th Cir.)
(holding that a warrantless search and seizure inside a home is
permitted “when probable cause and exigent circumstances ex-
ist”), cert. denied, 525 U.S. 1045 (1998); see also Minnesota v. Olson,
495 U.S. 91, 100 (1990) (“[T]here must be at least probable cause
to believe that [exigent circumstances] were present . . . .”).
Circumstances constituting probable cause may include the
reasonable belief “that illegal activity is being conducted in a
particular place.” Jacobs v. City of Chicago, 215 F.3d 758, 769 (7th
Cir. 2000). On the record in this case, we must conclude that the
circumstances known to the officers at the time also gave them
probable cause to conduct a warrantless search of Mr. Leaf’s
apartment.
No. 04-1318                                                        19
                                                             11
The common law “knock and announce” principle, which
requires a law enforcement officer “to announce his pres-
ence and authority” before opening the doors of a dwelling
             12
and entering, “forms a part of the reasonableness inquiry
under the Fourth Amendment.” Wilson v. Arkansas, 514 U.S.


11
  A federal “knock and announce” statute permits a federal
officer executing a warrant to break open a door or window and
enter a private house if he has given “notice of his authority and
purpose” and has been “refused admittance.” 18 U.S.C. § 3109.
This statute codifies a common law principle, “embedded in
Anglo-American law,” requiring a law enforcement officer to
knock and announce himself before entering a home. Miller v.
United States, 357 U.S. 301, 313 (1958). In 1995, the Supreme Court
“squarely held” that the knock and announce principle “is an
element of the reasonableness inquiry under the Fourth Amend-
ment” and thus applies to actions by state law enforcement
officers as well. Wilson v. Arkansas, 514 U.S. 927, 934 (1995).
12
  As a general rule, the knock and announcement must take place
before a law enforcement officer may “break open the doors of a
dwelling.” Wilson, 514 U.S. at 929. Even a minor entry or an entry
which does not cause property damage is a “breaking.” See, e.g.,
United States v. Ramirez, 523 U.S. 65, 71-72 (1998) (officers broke one
garage window and pointed gun through broken window);
Sabbath v. United States, 391 U.S. 585, 589-90 (1968) (holding that
opening of closed but unlocked door by police officers consti-
tuted “breaking” under § 3109); Miller, 357 U.S. at 305-06 (holding
that, when officers ripped the chain off door to gain entry before
announcing purpose to arrest, requirements of § 3109 were not
fulfilled). In this case, the officers entered through a patio door
which was wide open, but which was blocked by some blinds;
Deputy Shelnutt held the blinds aside while he and Deputy
Jacobs entered.
  In addition, once the officer has knocked and announced, he
must wait a reasonable amount of time before entering. “[T]he
facts known to the police are what count in judging reasonable
waiting time . . . .” United States v. Banks, 540 U.S. 31, 39 (2003).
20                                                     No. 04-1318

927, 929 (1995). The principle typically is understood to
require both a knock and an announcement prior to en-
tering. See, e.g., United States v. Buckley, 4 F.3d 552, 558 (7th
Cir. 1993), cert. denied sub nom. Herman v. United States, 510
U.S. 1124 (1994). The announcement generally must relate
both the officer’s identity as a member of law enforcement
                                                                13
and his purpose or authority. See Wilson, 514 U.S. at 929.
Because the knock and announce principle is a part of
the reasonableness inquiry according to which any search is
judged, it is relevant to searches conducted without a
warrant under some recognized exigency, as well as those
                                         14
authorized in advance by a warrant.
  The knock and announce principle is but one part of
the reasonableness inquiry to be conducted under the
Fourth Amendment. See Wilson, 514 U.S. at 929. Therefore,
the elements described above are not applied strictly in

13
  See also 3 Wayne R. LaFave, Search and Seizure: A Treatise
On the Fourth Amendment § 4.8(c) (3d ed. 1996) (“It would seem
that [the requirement described in Wilson v. Arkansas] is not in-
tended to be different from the common ‘authority and purpose’
assertion, as the authority cannot be established without a refer-
ence to purpose, in this context, execution of a search warrant.”).
14
   Although most of the cases developing the contours of the
knock and announce principle have been decided in the context
of police officers executing search or arrest warrants, the guide-
lines developed in those cases also apply to situations in which
police officers conduct warrantless searches. The requirements of
§ 3109 have been held to cover warrantless searches and war-
rantless entries to arrest made by federal agents. See, e.g., Sabbath,
391 U.S. at 588; Miller, 357 U.S. at 308-09 (“The requirement . . .
applies . . . whether the arrest is to be made by virtue of a
warrant, or when officers are authorized to make an arrest for a
felony without a warrant.”). See also 1 William E. Ringel, Searches
& Seizures, Arrests and Confessions § 6:7 (2d ed. 2004).
No. 04-1318                                                        21

every situation. See, e.g., id. at 934 (holding that “[t]he Fourth
Amendment’s flexible requirement of reasonableness
should not be read to mandate a rigid rule of announcement
                                                                 15
that ignores countervailing law enforcement interests”).
We are mindful that the principle of “knock-and-announce,”
as an “element of the reasonableness inquiry,” has never
been a “rigid” rule. Id. Although “in some circumstances an


15
  For instance, this court has held that, in certain circumstances,
the announcement of purpose is not necessary:
     [W]hen it is clear that someone is at home, officers must ex-
     plain not just who they are but also why they are there. . . .
     But where . . . officers have knocked and announced “Police,”
     with no answer whatsoever, and there are no signs that
     anyone is at home, . . . [the] common law rules . . . may be
     complied with, in spirit at least, even if the officers neglect to
     state what their business is.
United States v. Leichtnam, 948 F.2d 370, 374 (7th Cir. 1991)
(emphasis in original). At least one of our sister circuits has held
that, in certain circumstances, the knock is not required. See, e.g.,
United States v. Mendoza, 281 F.3d 712, 717 (8th Cir.) (holding that
police had acted consistently with purposes underlying the knock
and announce principle, even when no knock was given, when
officers shouted warning and door already was off its hinges),
cert. denied, 537 U.S. 1004 (2002).
   When made, “[a] knock and announcement must be loud
enough to be heard.” Leichtnam, 948 F.2d at 374 (approving an
announcement made “slightly above conversational level”) (in-
ternal quotations omitted); cf. United States v. Spriggs, 996 F.2d
320, 322-23 (D.C. Cir.) (holding that announcement was “suffi-
cient to alert the residents of the apartment” where “reasonably
audible” and “slightly above a normal tone of voice” and made
at 7:45 a.m., when residents likely to “be awake and responsive”)
(internal quotations omitted), cert. denied, 510 U.S. 938 (1993).
22                                                   No. 04-1318

officer’s unannounced entry into a home might be a viola-
tion of the Fourth Amendment,” in other circumstances, an
unannounced entry may be justified by “countervailing law
enforcement interests.” Id.
   Courts have recognized three sets of circumstances which
constitute exceptions to the knock and announce principle.
“In order to justify a ‘no-knock’ entry, the police must have
                         16
a reasonable suspicion that knocking and announcing their
presence, under the particular circumstances, would be [(1)]
                            17
dangerous or [(2)] futile, or [(3)] that it would inhibit
effective investigation of the crime by . . . allowing the
destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385,
394 (1997). This court has described these situations,
in which “executing [a] search in a no-knock fashion” is
justified, as “exigent circumstances.” United States v. Singer,
943 F.2d 758, 762 (7th Cir. 1991); see also Sledd, 102 F.3d at
288.

16
   The showing required by the reasonable suspicion standard
is “not high,” and certainly requires less than probable cause.
Richards v. Wisconsin, 520 U.S. 385, 394 (1997).
17
   Deputy Shelnutt argues that an announcement of purpose
should be excused as futile on the ground that Mr. Leaf was asleep.
However, the futility exception to the knock and announce prin-
ciple applies when the occupant of the premises to be entered
most likely already knows why the officers are approaching. See,
e.g., Miller, 357 U.S. at 310 (“It may be that, without an express
announcement of purpose, the facts known to officers would
justify them in being virtually certain that the [occupant] already
knows their purpose so that announcement would be a useless
gesture.”); United States v. Tracy, 835 F.2d 1267, 1270 (8th Cir.)
(“[T]he officers could have justifiably believed defendants were
anticipating their arrival and knew their purpose. Thus, announc-
ing their purpose would have been a useless gesture.”), cert.
denied, 486 U.S. 1014 (1988). On the record in this case, we must
conclude that the futility exception does not apply.
No. 04-1318                                                       23

  Most of the cases explaining the danger exception to the
knock and announce principle have taken place in the con-
                                       18
text of searches pursuant to warrant. However, this court
also has excused officers’ failure to comply with the knock


18
   See, e.g., Ramirez, 523 U.S. at 71 (holding that police had a rea-
sonable suspicion that “knocking and announcing their presence
might be dangerous,” justifying their unannounced entry to
execute an arrest warrant, when a “confidential informant had
notified the police” that a man “with a violent past who report-
edly had access to a large supply of weapons” “might be inside
respondent’s home, and an officer had confirmed that possibility”).
This court has excused compliance with the knock and announce
principle in circumstances presenting danger to officers executing
warrants. See, e.g., United States v. Sutton, 336 F.3d 550, 554 (7th
Cir. 2003) (excusing “less than full compliance” with knock and
announce principle by officers executing search warrant when pit
bulls had been seen on the property, individuals with weapons
convictions had been seen entering the house and configuration
of house “provided no cover”); United States v. Gambrell, 178 F.3d
927, 929 (7th Cir.) (holding that, when officer knew before
entering that the occupant typically “answered the door wearing
a .25 caliber gun in her front pocket; that she and her roommate
regularly carried guns in the apartment; [and] that . . . there were
other guns . . . in the apartment,” there was “a reasonable
suspicion that an announced entry would have subjected the
officers to a substantial risk of harm”), cert. denied, 528 U.S. 920
(1999); United States v. Buckley, 4 F.3d 552, 558 (7th Cir. 1993)
(determining that “exigent circumstances” excused knock and
announce where “the officers knew that the defendants possessed
a pit bull and firearms”), cert. denied sub nom. Herman v. United
States, 510 U.S. 1124 (1994); United States v. Howard, 961 F.2d 1265,
1267 (7th Cir.) (concluding that “exigent circumstances justified
disregarding the knock and announce requirement” where
officers executing search warrant “had specific knowledge that
the [occupant] was in possession of a firearm, and that he had
previously fired it in the hallway outside his apartment”),
cert. denied, 506 U.S. 882 (1992).
24                                                 No. 04-1318

and announce principle when the officers were making a
warrantless entry and the circumstances gave rise to a
reasonable belief that knocking and announcing would be
dangerous to the officers. United States v. Hardy, 52 F.3d 147,
150 (7th Cir.), cert. denied, 516 U.S. 877 (1995). In Hardy, “the
same exigent circumstances” that justified an officer’s war-
rantless search of a hotel room “also excuse[d] a failure to
knock and announce.” Id. The circumstances known to the
police in that case led them to “reasonably believe that their
                                                         19
safety or the safety of others” was at risk. Id. at 149.
  In this case, the circumstances reflected in the record com-
pel the conclusion that the officers had a reasonable basis to
conclude that knocking and announcing themselves would
have been dangerous. Although Deputy Jacobs had not seen
or heard a person within the apartment during his approxi-
mately eight-minute observation, there were several signs
that someone other than the apartment’s lawful occupant
had entered it. For instance, the sliding patio door had been
left open and an ice chest had been pushed up against the
apartment’s front door; this would have been consistent
with the presence of a burglar attempting to block all but one
path of entry and exit.
  The officers had no conclusive information that the
apartment was empty. The residents told Deputy Jacobs
they had seen a man forcing entry into the apartment, and
Deputy Jacobs did not witness anyone leave the apartment
during his eight-minute observation prior to Deputy Shelnutt’s

19
  In Hardy, the room’s occupant was a murder suspect who knew
that the police were pursuing him, had a history of committing
crimes using guns and was known to be armed with a shotgun;
also, women and children were known to be in the room with
him. See United States v. Hardy, 52 F.3d 147, 149 (7th Cir.),
cert. denied, 516 U.S. 877 (1995).
No. 04-1318                                                       25

arrival. Deputy Jacobs had shone a flashlight upon the
broken window and open patio door; that alone could have
alerted a burglar to the need to remain still and silent. Al-
though the interior of the apartment did not appear to have
been disturbed, this may have convinced the officers that an
intruder still was present. Furthermore, the officers had very
little information about the identity or temperament of the
person who may have been inside except that Murphy had
told Deputy Jacobs the man was belligerent. Indeed, all
signs pointed to the need to investigate and to exercise
caution in doing so.
  Taking all the facts and circumstances in the light
most favorable to the Leafs, we still must conclude that
Deputy Shelnutt did not violate the Fourth Amendment by
entering Mr. Leaf’s apartment without knocking and with-
                            20
out announcing his purpose.


20
   We note that our holding is based on the specific facts pre-
sented by this case and not on a general invocation of exigent
circumstances. The Supreme Court has instructed that, when
“exigent circumstances” might have justified officers’ warrantless
entry into a home without a knock, if the record does not reflect
“any substantial basis for excusing the failure of the agents . . . to
announce their authority and purpose,” the entry violates the
Fourth Amendment. Sabbath, 391 U.S. at 591. When agents
making a warrantless entry “ha[ve] no basis for assuming [the
occupant is] armed or might resist arrest, or that [the undercover
agent present is] in any danger,” then compliance with the knock
and announce principle will not be excused. Id. This guidance
accords with the Court’s later directive, made in Richards, that
officers must have a “reasonable suspicion,” based on the
circumstances, that one or more of the exceptions to the knock
and announce principle applies. Richards, 520 U.S. at 394. There
is no general rule permitting officers to enter a private residence
                                                      (continued...)
26                                                   No. 04-1318

D. The Protective Sweep
  We next address the search that Deputy Shelnutt con-
ducted inside Mr. Leaf’s apartment. The district court
determined that there was a question as to whether that
search was carried out unreasonably. Specifically, the court
found that, because Deputies Shelnutt and Jacobs used
tactical lights, because they did not identify themselves
as law enforcement officers or illuminate their badges,
and because they did not wake Mr. Leaf immediately after
finding him, a jury could determine that Deputy Shelnutt
had acted in an objectively unreasonable manner in search-
ing the apartment. The district court also found that there
was a question as to whether Deputy Shelnutt’s conduct
during the search of the apartment unreasonably created the
need for force. On the record in this case, we respectfully
disagree with the district court’s analysis. In our view,
Deputy Shelnutt is entitled to qualified immunity because
his search of the apartment did not violate the Fourth
Amendment.
  Deputy Shelnutt does not dispute any of the factual find-
ings made by the district court with respect to his search of


20
   (...continued)
without complying with the knock and announce principle
whenever exigent circumstances are present; in fact, the Supreme
Court in Richards forbade a blanket rule which would excuse
compliance for an entire class of cases. Id. To hold that the knock
and announce principle may be disregarded any time exigent
circumstances justify a warrantless search would be to eviscerate
Richards. Rather, in this case, the “countervailing law enforcement
interests,” Wilson, 514 U.S. at 934, convince us that it was
reasonable for the officers to protect their safety by complying
less than fully with the knock and announce principle in a
situation of questionable security.
No. 04-1318                                                       27

the apartment: for instance, that neither he nor Deputy Jacobs
identified themselves after entering the apartment; that both
officers lit the apartment with the tactical lights attached to
their guns; that neither officer illuminated his badge; and
that the officers did not attempt to wake Mr. Leaf immedi-
ately after finding him, but instead searched the rest of the
apartment before waking him. However, Deputy Shelnutt
does contend that he is entitled to qualified immunity for
the search on the ground that it was justified under the pro-
tective sweep doctrine described in Maryland v. Buie, 494
U.S. 325, 327 (1990). A “protective sweep” has been defined
as “a quick and limited search of premises, incident to an
arrest and conducted to protect the safety of police officers
or others . . . [and] narrowly confined to a cursory visual
inspection of those places in which a person might be
hiding.” Id. Although a protective sweep invades a home-
owner’s privacy, such a search tactic may be “reasonable
when weighed against ‘the need for law enforcement
officers to protect themselves and other prospective victims
of violence.’ ” Id. at 332 (quoting Terry v. Ohio, 392 U.S. 1, 24
(1968)).
  A protective sweep, limited to “look[ing] in closets and
other spaces immediately adjoining the place of arrest,” is
justified “incident to [an] arrest . . . as a precautionary mat-
ter and without probable cause or reasonable suspicion.” Id.
at 334. A search beyond those parameters is justified when
there are “articulable facts which, taken together with the
rational inferences from those facts, would warrant a rea-
sonably prudent officer in believing that the area to be swept
harbors an individual posing a danger to those on the arrest
scene.” Id. “[A] protective sweep . . . is . . . not a full search of
the premises, but may extend only to a cursory inspection
of those spaces where a person may be found. The sweep
lasts no longer than is necessary to dispel the reasonable
28                                                    No. 04-1318

suspicion of danger . . . .” Id. at 335-36. We have recognized
generally that while entry into a dwelling typically requires
a search warrant founded on probable cause, a “quick in-
spection[ ] may be justified by lower degrees of suspicion.”
United States v. Brown, 64 F.3d 1083, 1086 (7th Cir. 1995); see
also United States v. Concepcion, 942 F.2d 1170, 1173 (7th Cir.
1991) (“How much cause agents need to do something
depends on how deeply they invade the zone of privacy.”).
  We have noted on previous occasions that the inquiry
whether a protective sweep was reasonable is “necessarily
a very fact-specific one.” United States v. Burrows, 48 F.3d
1011, 1016 (7th Cir.), cert. denied, 515 U.S. 1168 (1995). Further-
more, “the circumstances of the particular encounter [must]
be assessed carefully in light of the overarching policy con-
cerns articulated in Buie and in its first cousins, Terry and
Long.” Id.; see also Terry, 392 U.S. 1; Michigan v. Long, 463
U.S. 1032 (1983). Those policy concerns include a proper re-
gard for the safety of police officers, who “have an interest
in ensuring their safety when they lawfully enter a house . . . .
That interest justifies their ensuring that the dwelling does
not harbor another person who is dangerous and who unex-
pectedly could launch an attack.” Burrows, 48 F.3d at 1015-
    21
16.


21
  Beyond the protective sweep doctrine, another line of cases
recognizes that law enforcement officers may conduct a quick
and limited search of a dwelling which they have entered based
on “legitimate concerns” about the safety of the occupants. United
States v. Brown, 64 F.3d 1083, 1086 (7th Cir. 1995) (“[W]ith some
(though far from strong) reason to fear for Bonds’s safety, the
agents could take some steps to protect her.”); see also United
States v. Arch, 7 F.3d 1300, 1303 (7th Cir. 1993) (finding a limited
search of dwelling place was lawful under the exigent circum-
                                                      (continued...)
No. 04-1318                                                       29

   The Leafs contend that the search conducted by
Deputy Shelnutt upon entering the apartment was not justi-
fied, because the cases have approved protective sweeps
incident to arrest. The Leafs submit that the officers, when
they entered the apartment, did not intend to make an
        22
arrest. However, the Leafs’ argument misapprehends the
lineage of the protective sweep. Although Buie recognizes
that a protective sweep “occurs as an adjunct to the serious
step of taking a person into custody for the purpose of
prosecuting him for a crime,” the protective sweep doctrine
also is justified by the concerns that an officer conducting an
in-home arrest is at a “disadvantage” and that he is suscepti-
ble to “[a]n ambush in a confined setting of unknown
configuration.” Buie, 494 U.S. at 333. This concern for officer
safety derives from the same principles recognized in Terry.
See United States v. Arch, 7 F.3d 1300, 1303 (7th Cir. 1993),
cert. denied, 510 U.S. 1139 (1994). The protective sweep is
justified by the need, based on the facts known to a law
enforcement officer, to ensure officer and bystander safety.
Buie, 494 U.S. at 327. The underlying rationale for the
protective sweep doctrine is the principle that police officers
should be able to ensure their safety when they lawfully
enter a private dwelling. Arch, 7 F.3d at 1303. That rationale
also applies in this situation. The officers entered in order to
ascertain whether a burglary had occurred; they had


21
  (...continued)
stances exception to the warrant requirement when police feared
injured individuals were inside), cert. denied, 510 U.S. 1139 (1994).
22
  This court has recognized that the logic of “Buie assumes that
the police already are lawfully present in the home to arrest its
occupant and that a sweep is necessary to avert any immediate
danger posed by others on the premises.” Arch, 7 F.3d at 1303 (cit-
ing Buie, 494 U.S. at 327, 333, 336).
30                                              No. 04-1318

substantial reason to believe their safety might have been at
risk. Accordingly, it was not necessary for the officers to
have made an arrest in order for their search of the apart-
ment to be justified; the only question is whether the search
was objectively reasonable.
  We have reviewed the record in this case and must con-
clude that the decision to conduct a protective search was
reasonable, and that the sweep was conducted in a rea-
sonable manner. The officers, already lawfully present in
the apartment, had reason to believe that they might be
faced with an ongoing crime or an individual in danger.
Therefore, they were justified in conducting a brief, three-
minute sweep, extending no more broadly than necessary to
ascertain whether those suspicions were correct. In light of
the policies expressed in Buie, the officers were entitled to
ensure their own safety after entering a dwelling which they
suspected was the target of a crime, and from which no
person had been seen emerging. The intrusiveness of the
search was minimal, and its scope was limited appropriately
by its purposes.
  Furthermore, the officers did not act unreasonably in
speaking in low tones and using the tactical lights on their
weapons. They had entered Mr. Leaf’s apartment on the
suspicion that someone other than the lawful occupant
might be present inside. Given the facts known to the
deputies at the time of their entry—the open screen door,
the broken window, the front door that had been kicked in,
the dark apartment, the unanswered 911 call and the fact
that someone was seen forcing entry into the apartment—a
reasonable officer could have believed that the apartment
potentially harbored a dangerous intruder. Even after they
had witnessed Mr. Leaf lying on the bed, the officers could
not have been sure that they would not be surprised by
another person until they had conducted a protective sweep.
No. 04-1318                                                    31

We also must conclude that, based on the circumstances fac-
ing them, the officers behaved reasonably by not waking
Mr. Leaf immediately. Furthermore, until they had deter-
mined that no dangerous person was hiding in the apart-
ment, the officers behaved reasonably in using the tactical
lights on their guns and remaining quiet.
   In light of these considerations, we must conclude that the
Fourth Amendment was not violated by the very limited
protective sweep that Deputy Shelnutt conducted. Approv-
ing this search does not pervert the Fourth Amendment “to
achieve ends other than those acknowledged as legitimate.”
                           23
Burrows, 48 F.3d at 1017. Based on our analysis of Deputy
Shelnutt’s entry into the apartment and his brief search of
the apartment, we must conclude that Deputy Shelnutt is
entitled to qualified immunity for the Leafs’ illegal search
claim. The conclusion that Deputy Shelnutt did not conduct
an unreasonable search of the apartment compels the further
conclusion that his entry and search did not unreasonably
create the need for his later use of force. See, e.g., Sledd, 102
F.3d at 287-88. The question of whether other actions taken
by the deputies constituted excessive use of force, however,
is not before us on this appeal.




23
   We note that, even if we had found that the Fourth Amendment
forbade the search at issue here, Deputy Shelnutt still would be
entitled to qualified immunity, because it is not clearly estab-
lished that such a sweep violates the Constitution. Decisions from
both the Supreme Court of the United States and this court have
sketched the outlines of the protective sweep in terms of the
reasonable suspicion standard, emphasizing a concern for the
safety of law enforcement officers. Therefore, under these
circumstances, the unlawfulness of the protective sweep would
not have been apparent to a reasonable officer.
32                                                    No. 04-1318

E. Illegal Seizure
   We turn next to Deputy Shelnutt’s assertion that he is
entitled to qualified immunity for the Leafs’ illegal seizure
claim. In its order of October 14, 2003, the district court
denied the Leafs’ motion for partial summary judgment on
their illegal seizure claim. The district court determined that
the officers had seized Mr. Leaf in his bed, but found a
genuine issue of triable fact existed as to whether the seizure
was unreasonable in violation of the Fourth Amendment.
Although Deputy Shelnutt asserted qualified immunity in
his response to the Leafs’ summary judgment motion, the
district court did not address qualified immunity for the
illegal seizure claim. The district court only addressed qua-
                                                       24
lified immunity later, in its January 6, 2004 order. There,
the court noted generally that “fact issues . . . on the claims
for unlawful entry, search and seizure, and excessive force . . .
prevent the Court from deciding as a matter of law whether
Shelnutt is entitled to qualified immunity on those claims.”
R.219 at 25.



24
   We cannot accept the Leafs’ contention that Deputy Shelnutt’s
appeal of this issue on qualified immunity grounds is not timely.
It is true that, when the Leafs earlier moved for partial summary
judgment on their illegal seizure claim, Deputy Shelnutt replied
to that motion by arguing that his actions were constitutional and
that, in the alternative, he was entitled to qualified immunity. In
ruling on the motion, the district court denied the Leafs’ motion
for summary judgment on the ground that there were genuine
issues of triable fact. Deputy Shelnutt therefore prevailed on this
motion on a ground other than qualified immunity. The district
court never reached the alternate issue of qualified immunity.
Notably, when the district court reached the qualified immunity
issue in its later order, it gave no indication that it had addressed
the issue earlier.
No. 04-1318                                                 33

  1.   Whether a Seizure Occurred
  We begin our review of the district court’s decision to
deny Deputy Shelnutt qualified immunity for the seizure by
asking whether the facts alleged, taken in the light most
favorable to the Leafs, show that Deputy Shelnutt violated
the Constitution. See Saucier, 533 U.S. at 201. The Fourth
Amendment prohibits unreasonable seizures. See, e.g.,
California v. Hodari D., 499 U.S. 621, 624 (1991). In order to
determine whether Deputy Shelnutt seized Mr. Leaf in
violation of the Fourth Amendment, we must engage in a
two-part inquiry. See White v. City of Markham, 310 F.3d 989,
993 (7th Cir. 2002). We first consider whether Mr. Leaf was
seized in his bedroom on May 5, 2001; if we conclude that
he was seized, we then must determine whether the seizure
was unreasonable. See id.
  A seizure has been defined as a “governmental termi-
nation of freedom of movement through means intentionally
applied.” Brower v. County of Inyo, 489 U.S. 593, 597 (1989)
(emphasis in original). A person is seized “only if, in view
of all of the circumstances surrounding the incident, a
reasonable person [in the subject’s position] would have
believed that he was not free to leave.” United States v.
Mendenhall, 446 U.S. 544, 554 (1980). As well, for a seizure to
have taken place, “the subject [must] actually yield to a
show of authority from the police or be physically touched
by the police.” Tom v. Voida, 963 F.2d 952, 957 (7th Cir. 1992)
(citing Hodari D., 499 U.S. at 626).
  In concluding that Mr. Leaf was seized, the district court
determined that a reasonable person in Mr. Leaf’s situation
would have believed that he was not free to leave. The
Supreme Court has noted that a reasonable person might
not believe he was free to leave when faced with “the threat-
ening presence of several officers, the display of a weapon
34                                                No. 04-1318

by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be com-
pelled.” Mendenhall, 446 U.S. at 554. Furthermore, this court
has noted some other factors that might influence a reason-
able individual to believe that he was not free to leave:
“whether the encounter occurred in a public or private place;
whether the suspect was informed that he was . . . free to
leave; . . . whether there was physical touching, display of
weapons, or other threatening conduct; and whether the
suspect eventually departed the area without hindrance.”
United States v. Scheets, 188 F.3d 829, 836-37 (7th Cir. 1999),
cert. denied, 528 U.S. 1096 (2000).
  In light of the fact that two police officers had their guns
and tactical lights pointed at Mr. Leaf, while he lay in his
bed in his own residence in the middle of the night, we
agree with the district court that a reasonable person would
not have believed that he was free to leave. However, this
issue is not dispositive of the ultimate question of whether
a seizure occurred. “[T]he objective test of Mendenhall states
a necessary, but not a sufficient, condition for seizure.” Tom,
963 F.2d at 957. We must also consider whether Mr. Leaf
was physically touched by the officers or whether he
submitted to their authority, before we may conclude that
a seizure occurred. Id.
   The district court thought that the question of seizure
turned on whether or not Mr. Leaf submitted to the officers’
show of authority. However, because a seizure must be
accomplished “through means intentionally applied,” it is not
the case that a seizure occurs every time there is a “govern-
mentally desired termination of an individual’s freedom of
movement.” Brower, 489 U.S. at 597 (emphases in original).
Where police seek to stop someone, but the subject is “in
fact stopped . . . by a different means,” no seizure occurs. Id.
If Mr. Leaf’s failure to flee can be attributed to the fact that
No. 04-1318                                                       35

he was asleep or otherwise unconscious, we think that it
cannot be said that the officers terminated his freedom of
movement through their show of authority. Thus, the fact
that Mr. Leaf did not flee, taken alone, cannot establish that
he was seized.
  In determining that a seizure had occurred, the district
court did not make a finding as to whether or not
Deputy Shelnutt actually touched Mr. Leaf. In fact, in its
January 6, 2004 order denying Deputy Shelnutt qualified
immunity, the district court stated that whether
Deputy Shelnutt had touched Mr. Leaf was “irrelevant to
the present motion.” R.219 at 4. We may not reconsider the
district court’s apparent conclusion that there was a ques-
tion of fact as to whether any touching occurred, nor may we
express an opinion about which facts the parties may ulti-
mately be able to establish at trial. Johnson, 515 U.S. at 313.
   The Supreme Court has noted that “[t]he word ‘seizure’
readily bears the meaning of a laying on of hands or ap-
plication of physical force to restrain movement, even when
it is ultimately unsuccessful.” Hodari D., 499 U.S. at 626; see
id. (“An arrest requires . . . physical force . . . .”). However,
the Court has also said that, when a person merely is tapped
on the shoulder by law enforcement agents attempting to
get that person’s attention, no seizure occurs. See INS v.
                                           25
Delgado, 466 U.S. 210, 220-21 (1984). This observation
conforms to the Court’s directive that a seizure is a “gov-
ernmental termination of freedom of movement.” Brower, 489 U.S.


25
   See also Martinez v. Nygaard, 831 F.2d 822, 826-27 (9th Cir. 1987)
(holding that man was not seized when officers grabbed him “to
get his attention” and then released him); cf. United States v.
Sokolow, 808 F.2d 1366, 1369 (9th Cir. 1987) (holding that man was
seized when officers grabbed him and moved him to a seat for
questioning before releasing him), rev’d on other grounds, 490 U.S.
1 (1989) (assuming, without deciding, that a seizure occurred).
36                                                  No. 04-1318

at 597 (emphasis added). Here, Deputy Shelnutt sought to
get Mr. Leaf’s attention, not to terminate his freedom of
movement. Thus, the Leafs have not alleged the first part of
a Fourth Amendment violation; on these facts, they cannot
show that Mr. Leaf was seized. Therefore, we must conclude
that there was no unreasonable seizure in violation of the
Fourth Amendment, and that Deputy Shelnutt is entitled to
qualified immunity as a defense against the Leafs’ illegal
seizure claim.


  2.   Whether a Seizure was Unreasonable
   In the alternative, we note that, even if Deputy Shelnutt’s
conduct towards Mr. Leaf could be considered a seizure, it
was reasonable as a matter of law. The reasonableness of a
seizure is measured by weighing the governmental need to
seize “against the invasion into one’s privacy that the . . .
seizure entails.” United States v. Sechrist, 640 F.2d 81, 86 (7th
Cir. 1981). When a police officer suspects that criminal
activity is afoot, “[a] brief stop of a suspicious individual, in
order to determine his identity . . . may be most reasonable
in light of the facts known to [an] officer at the time.” Adams
v. Williams, 407 U.S. 143, 146 (1972) (citing Terry, 392 U.S. at
21-22). This court has held that “[a]n investigatory stop not
amounting to an arrest is authorized if the officer making
the stop is ‘able to point to specific and articulable facts’ that
give rise to a reasonable suspicion of criminal activity.”
United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994)
(quoting Terry, 392 U.S. at 21-22).
  We judge the reasonableness of an investigatory stop by
considering: “(1) whether the police were aware of specific
and articulable facts giving rise to reasonable suspicion; and
(2) whether the degree of intrusion was reasonably related
to the known facts.” Id.; see also Scheets, 188 F.3d at 837.
No. 04-1318                                                   37

When evaluating the reasonableness of an investigatory
stop, we consider the totality of the circumstances with
which the officers were faced, in terms of both “the experi-
ence of the law enforcement agent and the behavior and
characteristics of the suspect,” and “exclud[ing] any facts
learned thereafter.” United States v. Odum, 72 F.3d 1279, 1284
(7th Cir. 1995).
  Even taking the facts in the light most favorable to the
Leafs, as we must when considering qualified immunity,
Saucier, 533 U.S. at 201, we think that Deputy Shelnutt’s
conduct was reasonable. First, Deputy Shelnutt was aware
of sufficient specific and articulable facts to give rise to rea-
sonable suspicion that crime was afoot. As we have noted
numerous times, the officers suspected someone had broken
into the apartment. Furthermore, as the district court pointed
out, “the officers did not know the identity of the [appar-
ently] sleeping man.” R.172 at 9. It is not important that the
behavior that the officers observed (Mr. Leaf lying on his
bed, apparently sleeping) could have been innocent behavior.
Innocent characteristics, when “taken together,” may add
up to reasonable suspicion. United States v. Sokolow, 490 U.S.
1, 9 (1989). Indeed, “there could . . . be circumstances in
which wholly lawful conduct might justify the suspicion
that criminal activity was afoot.” Reid v. Georgia, 448 U.S.
438, 441 (1980) (per curiam) (citing Terry, 392 U.S. at 27-28).
  The degree of intrusion also was reasonably related to the
facts known to the officers while they were in the apartment.
The record reflects a minimally intrusive stop. Faced with
signs of a break-in and already lawfully within the apart-
ment, Deputy Shelnutt wanted to awaken the man lying on
the bed to determine who he was and why he was present.
Thus, he moved to nudge the man awake. This behavior
hardly can be called intrusive.
38                                                No. 04-1318

  The Leafs argue that Deputy Shelnutt should have at-
tempted to wake Mr. Leaf by a means other than approach-
ing him to nudge him. However, the Supreme Court has
held that the reasonableness of an officer’s actions “does not
turn on the availability of less intrusive investigatory
techniques.” Sokolow, 490 U.S. at 11. Therefore, the manner
in which Deputy Shelnutt approached Mr. Leaf does not
render unreasonable any seizure that occurred.
  It also is clear that any seizure that might have occurred
did not last any longer than reasonably necessary. At most,
Deputy Shelnutt engaged in a brief touch. See, e.g., Hodari D.,
499 U.S. at 625 (no continuing seizure after fugitive breaks
free of officer’s grasp). The Supreme Court has stated that a
court reviewing the duration of an investigative stop should
ask “whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their
suspicions quickly, during which time it was necessary to
detain the defendant.” United States v. Sharpe, 470 U.S. 675,
686 (1985). The means of investigation employed by the
officers in this case, rousing a man to determine his identity,
certainly constituted a quick way to gather information—
perhaps the means used were the only way for the officers
to learn what they needed to know. Furthermore, when
“police are acting in a swiftly developing situation,” as was
the case here, a court must not “indulge in unrealistic sec-
ond-guessing.” Id.
   Viewing the facts of this case in the light most favorable
to the Leafs, we must conclude that there has been no show-
ing that Deputy Shelnutt violated Mr. Leaf’s constitutional
rights by his conduct towards Mr. Leaf as Mr. Leaf lay in his
bed. There was no seizure, and furthermore, Deputy Shelnutt’s
behavior was reasonable. Therefore, he is entitled to qua-
lified immunity as a defense to the Leafs’ claim for illegal
seizure.
No. 04-1318                                                39

F. Excessive Force
  The district court denied Deputy Shelnutt qualified im-
munity for the Leafs’ excessive force claim on two grounds.
First, the court found that a jury would have to determine
whether Deputy Shelnutt’s use of force itself was justified as
a matter of law, based on the threat presented by Mr. Leaf.
Deputy Shelnutt does not ask that we address the district
court’s decision on this issue. Thus, Deputy Shelnutt’s im-
mediate use of force in the encounter with Mr. Leaf—
whether Mr. Leaf threatened “death or serious physical
harm” and “whether it was unreasonable for Shelnutt to
take the second shot at Leaf”—remains for adjudication.
R.219 at 26.
   Second, the district court noted that there was a question
for the jury as to whether the unreasonableness of
Deputy Shelnutt’s actions leading up to the encounter in the
bedroom “unreasonably created the need for force.” R.219 at
26-27. Based on our analysis of the preceding issues, we
must conclude that the district court’s second ground was
an incorrect basis for denying qualified immunity. Because
we have determined that Deputy Shelnutt is entitled to qua-
lified immunity against the claims that he acted unreason-
ably in searching the apartment and in seizing Mr. Leaf, we
also must conclude that he is entitled to qualified immunity
against any claim that he unreasonably created the need for
force.


G. Failure to Intervene
  The district court also denied Deputy Shelnutt summary
judgment on the Leafs’ claim that he failed to intervene
in Deputy Jacobs’ unlawful conduct. Because we have deter-
mined that the officers’ actions inside the apartment con-
stituted neither an illegal search nor an illegal seizure, we
40                                             No. 04-1318

must conclude that the Leafs do not have a cognizable claim
against Deputy Shelnutt for failing to intervene in Deputy
Jacobs’ actions.
   The only remaining conduct of which the Leafs complain
is the use of force against Mr. Leaf when Deputy Shelnutt
shot him, causing his death. As we noted above, a claim for
excessive force based on the shots fired at Mr. Leaf remains
before the district court. However, Deputy Shelnutt engaged
in the act of shooting, not Deputy Jacobs. Therefore, as
Deputy Shelnutt correctly argues, there is no basis for the
failure to intervene claim.


                       Conclusion
  For the reasons set forth in this opinion, the judgment of
the district court is reversed and the case is remanded for
proceedings consistent with this opinion. Deputy Shelnutt
may recover his costs in this court.
                                 REVERSED and REMANDED
No. 04-1318                                            41

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—3-18-05
