                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 10-3425

P EDRO R AMOS,
                                                  Plaintiff-Appellant,
                                  v.

C ITY OF C HICAGO, et al.,
                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 09 C 1058—John W. Darrah, Judge.



     A RGUED S EPTEMBER 20, 2011—D ECIDED M AY 24, 2013




  Before R OVNER, W OOD , and W ILLIAMS, Circuit Judges.
  R OVNER, Circuit Judge. Pedro Ramos was arrested in
2007 and charged with residential burglary in violation
of 720 ILCS 5/19-3. After a bench trial, he was acquitted
of that charge, and he subsequently brought an
action pursuant to 42 U.S.C. § 1983, alleging that the
defendants, the City of Chicago and five of its police
officers, violated his constitutional rights under the
Fourth and Fourteenth Amendments in conducting a
2                                             No. 10-3425

false arrest and malicious prosecution, and also as-
serting state law claims for malicious prosecution and
indemnification. The district court granted summary
judgment in favor of the defendants on the § 1983
claims and declined to exercise supplemental jurisdic-
tion over Ramos’ state law claims. Ramos appeals the
summary judgment as to his § 1983 claims.
  On appeal from a grant of summary judgment, we
review the decision of the district court de novo. Naficy
v. Ill. Dep’t of Human Servs., 697 F.3d 504, 509 (7th Cir.
2012). Examining the evidence in the light most fa-
vorable to Ramos, and construing all inferences in
his favor, we will affirm summary judgment only if there
are no genuine issues of material fact and the de-
fendants are entitled to judgment as a matter of law. Id.
Our narrative that follows is limited to the facts upon
which there is no dispute, as set forth in the parties’
Rule 56.1 Statement, and additional facts submitted to
the district court by Ramos.
  On September 27, 2007, Jose Garcia went to check on a
house that he co-owned with his brother who was on
vacation. When he arrived at the backyard of the
home, Garcia noticed that the back gate was uncharac-
teristically open, and the storm door to the home was
ajar. As Garcia walked toward the house, he noticed
that two men stood inside the open doorway. Upon
seeing Garcia, the men ran deeper into the interior of
the home and then fled from it. One of the intruders,
Miguel Manzano, drove a station wagon from the
home, and Garcia gave chase in his own vehicle. While
No. 10-3425                                           3

tracking Manzano, Garcia, who was an off-duty Chicago
police detective, called 9-1-1 and requested police
backup. Detective Michael Pagan responded to that call
and assisted Garcia in apprehending Manzano. Pagan
subsequently transmitted information over police radio
concerning the existence of the second intruder and
the address of the burglary. Defendant Officers John
Stanley and Timothy Shanahan joined by two others
who were eventually dismissed from the case, Jim
Johnson and Cesar Claudio, then proceeded to that ad-
dress, at which time they received updated informa-
tion from Officer Brian Reidy via radio, indicating that
the second suspect: “[s]upposedly lives at 7249 South
Lawndale, first name Jose” and that he was a male, His-
panic, and in his 20s. The radio dispatch also indicated
that the suspect had a red shirt on but had taken it off
and probably had a white tank shirt on, and that he
was about 5'2" and bald. One officer inquired over the
radio about the suspect “Peso,” but the dispatcher cor-
rected the officer and informed him that the name of the
suspect was “Jose.” In addition, the officers received
transmissions indicating that the second suspect was
a member of the “Saints” street gang, and that he was
believed to have guns in his house.
  Based on those radio transmission, the officers
proceeded to the South Lawndale address. As they ap-
proached the front entrance of that residence, they
noticed Ramos, a Hispanic male in a red shirt, who ap-
peared as though he could be in his twenties, pulling
away from the curb in front of the residence in a
Chevy Equinox. Officer Stanley motioned for the vehicle
4                                             No. 10-3425

to stop, and asked Ramos for his driver’s license.
Ramos did not possess a valid driver’s license, and he
produced only his state identification to Stanley. Stanley
then asked Ramos to exit the vehicle, handcuffed him,
and explained that they were investigating a burglary.
The officers placed Ramos in the back of the police car
until they could bring Garcia to the scene from his
location a few blocks away. Garcia identified Ramos as
the other person he observed inside the burglarized
home, at which point Stanley, Johnson, Claudio, and
Shanahan placed Ramos under arrest. Evidence pre-
sented to the district court indicated that Ramos was
actually 33 years of age (although Ramos acknowledged
in the undisputed facts that he appeared as though
he could be in his 20s), stood 6'1" tall, and weighed
320 pounds. There was some evidence that Garcia had
described the second intruder as larger than 5'7", but
taking the evidence in the light most favorable to
Ramos, we assume that the description the officers had
was of a person who stood 5'2" in height.
  Ramos had previously been arrested for a weapons
violation and charged with six counts of aggravated
unlawful use of a weapon, in violation of 720 ILCS 5/24-
1.6(A)(1),(2), and one count of unlawful use of a
weapon by a felon, in violation of 720 ILCS 5/24-1.1. He
had posted bond on August 3, 2007 on the weapons
charges, but that bond was revoked when he was
charged with residential burglary. Accordingly, Ramos
remained incarcerated from the time of his arrest
until his acquittal on the residential burglary charge on
June 5, 2008, at which time his bond was reinstated.
No. 10-3425                                            5

On August 12, 2008, he pled guilty to one count of unlaw-
ful use of a weapon, and was sentenced to 3 years’ im-
prisonment. The 253 days that he served from his resi-
dential burglary arrest on September 27, 2007 until the
June 5, 2008 acquittal was credited as time served on
his weapons conviction.
  Ramos then brought this § 1983 action against the
defendants, alleging that one or more of the defendants
arrested him without a lawful basis, and caused him to
be charged and prosecuted unlawfully by including
false statements in one or more police reports, in con-
travention of his Fourth and Fourteenth Amendment
protections. Specifically, Ramos contends that his
Fourth Amendment rights were violated by his arrest
which was not based on probable cause. On appeal,
he limits this claim to the time period before Garcia
positively identified him as the second intruder. He
argues that the defendants violated the Fourth Amend-
ment by stopping his vehicle and then handcuffing
him and placing him in the police vehicle while
awaiting Garcia. In addition, he asserts a claim of
wrongful prosecution, alleging that one or more of the
defendants falsely stated that Manzano, the first
intruder, had implicated Ramos. He argues on appeal
that Officer Shanahan prepared a police report stating
that Manzano implicated Ramos in the burglary.
Manzano, in his deposition testimony, denied that he
had identified Ramos as his partner in the burglary, and
stated that he did not know Ramos until he met him
in jail awaiting trial in the criminal case.
6                                               No. 10-3425

  The district court granted summary judgment to the
defendants on both claims. With respect to the claim
for false arrest, the court held that the brief detention of
Ramos while investigating the situation was not an
arrest, but rather was an investigatory stop that, under
Terry v. Ohio, 392 U.S. 1 (1968), is permissible as long
as the officers have reasonable suspicion that criminal
activity is ongoing. The court held that the officers
were justified in the initial stop of the vehicle because
they had reasonable suspicion of criminal activity based
on the description and location of the second suspect,
and that the knowledge about his gang affiliation and
gun ownership justified placing him in handcuffs
without converting that investigatory stop into an arrest.
  Regarding the claim for wrongful prosecution,
the district court held that a constitutional claim for
malicious prosecution is not available where a state law
remedy exists. McCann v. Mangialardi, 337 F.3d 782, 786
(7th Cir. 2003). Because Illinois recognizes the tort of
malicious prosecution, the court held that Ramos could
not proceed on a due process challenge in the court on
the same grounds. The court further considered whether
Ramos could pursue a “Brady-type violation” premised
upon the officer’s fabrication of evidence and failure
to reveal that falsification to Ramos. See Brady v.
Maryland, 373 U.S. 83 (1963); Parish v. City of Chicago,
594 F.3d 551 (7th Cir. 2009). The court rejected that
claim as well, however, because Ramos had failed
to demonstrate any prejudice resulting from the
false evidence.
No. 10-3425                                             7

  On appeal, Ramos challenges the court’s holdings on
the merits, but argues as an initial matter that the
court should not have considered the possibility that
his detention was a valid Terry stop because the
defendants did not argue that in their motion for sum-
mary judgment. A party seeking summary judgment
generally must raise arguments in support of that
motion in its opening memorandum in order to give
the other party a fair opportunity to respond. Smith v.
Bray, 681 F.3d 888, 902-03 (7th Cir. 2012). Ramos
is incorrect, however, in his contention that the Terry
argument was not adequately asserted. The motion
for summary judgment addressed the claim in the com-
plaint, which was that Ramos was arrested without
a lawful basis. Accordingly, the arguments in the
motion were focused on the actions of the defendants
that could be construed as an arrest, which undoubtedly
included the clear arrest after Garcia identified Ramos,
but also arguably included the actions of the defendants
in detaining and handcuffing Ramos. Although the
initial stop of the vehicle was not discussed at length,
the defendants pointed to the consistency between
Ramos’ gender, ethnicity, age, clothing, and location
with that of the second suspect as providing a proper
basis for the initial detention. Ramos was therefore ap-
prised of their position as to the constitutionality of
the initial stop. The defendants asserted that the actions
of the officers complied with the Fourth Amendment,
and nothing in their motion or memorandum indicates
an attempt to abandon or ignore the constitutionality of
the stop at its outset. When Ramos responded to the
8                                               No. 10-3425

motion by dismissing some defendants and narrowing
the scope of his claims to the small window of time be-
tween the initial stop of the vehicle and the arrival of
Garcia, the defendants responded with a more exhaus-
tive analysis of the initial detention, and the district
court properly addressed that argument in determining
that the detention was a reasonable Terry stop. See
Bernstein v. Bankert, 702 F.3d 964, 984-85 (7th Cir. 2012).
  We turn, then, to the constitutionality of the defen-
dants’ actions during that time window. As the district
court properly noted, officers are not required to have
probable cause to believe that a person is involved in
a crime in order to detain him for a brief investigatory
stop. Instead, officers are allowed to conduct such an
investigatory stop where they simply have reasonable
suspicion, based on specific and articulable facts, that
a crime is occurring. United States v. Patton, 705 F.3d
734, 737 (7th Cir. 2013). That standard is less demanding
than probable cause, and requires more than an
unparticularized hunch but less than a probability or
substantial chance that criminal activity exists. Id. at
741. “[S]o long as the suspicion . . . is supported by
specific, identifiable facts, it is an objectively reasonable
suspicion that satisfies Terry.” Id., citing United States
v. Thomas, 512 F.3d 383, 388 (7th Cir. 2008).
  The initial stop of the vehicle falls well within the
Terry reasoning. At the time of the stop, the officers had
received information that a second suspect had been
involved in a burglary of a home in the area, that the
person involved lived at 7249 S. Lawndale, that he was
No. 10-3425                                              9

a Hispanic male, in his 20s, and that he would be
wearing either a red shirt or a white tank. After they
approached the address of the suspect, they observed
a person matching that description pull away from the
curb in front of the home. The congruity between
Ramos’ appearance and the description of the suspect,
particularly given that the suspect was pulling away
from the curb at the address identified as that of the
suspect, provided reasonable suspicion for a Terry stop.
See United States v. Snow, 656 F.3d 498, 500 (7th Cir.
2011) (“Whether it was reasonable for an officer to
suspect that the defendant was engaged in wrongdoing
calls for an objective inquiry into all of the circum-
stances known to the officer at the time he stopped
the defendant, including information relayed to him
by fellow officers and police dispatchers.”) At that point,
because Ramos was seated in a car, the discrepancy
between the 5'2" height announced over the radio and
Ramos’ actual 6'1" stature would not have been readily
apparent.
  Once Ramos was pulled over, however, the basis for
reasonable suspicion became much more tenuous.
Ramos provided the officers with identification, which
indicated that his name was “Pedro.” That contradicted
the information they had received over the radio that
the second suspect was named Jose. Once Ramos exited
the vehicle, it also should have been apparent to the
officers that he was of a drastically different height than
that of the suspect—6'1" instead of 5'2". Accordingly, the
officers were left with an identification that matched
in broad, and less useful, categories such as ethnicity
10                                              No. 10-3425

and gender, and in somewhat more narrow areas such
as the color of the shirt and the location of the suspect.
But the officers also knew that some of the most specific
information did not match at all, including the name
and the height. While the name discrepancy is not dis-
positive given the potential for false identification cards,
the dramatic difference in height cannot be discounted.
This is a weak reed upon which to rest reasonable suspi-
cion, let alone the probable cause that may well be re-
quired given the decision to handcuff Ramos. For al-
though we have upheld the use of handcuffs to ensure
officer safety in a Terry stop of brief duration, without
automatically escalating the situation to an arrest, that
does not mean that law enforcement has carte blanche
to handcuff routinely. The proliferation of cases in
this court in which “Terry” stops involve handcuffs and
ever-increasing wait times in police vehicles is dis-
turbing, and we would caution law enforcement officers
that the acceptability of handcuffs in some cases does
not signal that the restraint is not a significant consider-
ation in determining the nature of the stop. See, e.g.,
United States v. Bullock, 632 F.3d 1004, 1015-16 (7th
Cir. 2011) (determining whether conduct including
handcuffing the suspect transformed a Terry stop into a
de facto arrest, and noting the subtle distinctions
between a Terry stop, a Terry stop rapidly evolving into
an arrest, and a de facto arrest); United States v. Clark,
657 F.3d 578, 581 (7th Cir. 2011) (assuming, without de-
ciding, that approaching the defendant with guns
drawn, patting him down, and placing him in hand-
cuffs effectuated a de facto arrest rather than investi-
No. 10-3425                                             11

gatory Terry stop); Clark, 657 F.3d at 581 (characterizing
the handcuffing of a suspect as not a normal part of a
Terry stop but noting that it does not automatically turn
a Terry stop into an unlawful arrest); United States v.
Smith, 3 F.3d 1088, 1094 (7th Cir. 1993) (observing that
“in the ‘rare’ case wherein common sense and ordinary
human experience convince us that an officer believed
reasonably that an investigative stop could be effectuated
safely only through the use of handcuffs, ‘we will not
substitute our judgment for that of the officers as to the
best methods to investigate.’ ”).
  Nevertheless, we need not determine in this case
whether the detention with handcuffs was an arrest
requiring probable cause, and whether the description
provided such probable cause, because the defendants
undoubtedly had probable cause to arrest Ramos once
he failed to produce a valid driver’s license—or even
any driver’s license—after being stopped. “Probable
cause exists if ‘at the time of the arrest, the facts and
circumstances within the officer’s knowledge . . . are
sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing,
or is about to commit an offense.’ ” Thayer v. Chiczewski,
705 F.3d 237, 246 (7th Cir. 2012), citing Gonzalez v. City
of Elgin, 578 F.3d 526, 537 (7th Cir. 2009). Before that
point, the defendants had reasonable suspicion to
conduct an investigatory stop based on the description,
and could request identification pursuant to that stop.
We have held that a traffic violation can constitute proba-
12                                              No. 10-3425

ble cause for an arrest, including driving without a
license. United States v. Garcia, 376 F.3d 648, 649-50 (7th
Cir. 2004); United States v. Wimbush, 337 F.3d 947, 950 (7th
Cir. 2003). Ramos argues that the defendants were not
aware at that time that his license had been suspended,
but the failure to present a license was itself an offense.
People v. Moorman, 859 N.E.2d 1105, 1118 (Ill. App. 2
Dist. 2006). Moreover, we have repeatedly held that
the offense for which probable cause exists need not
be the subjective offense for which the officer was con-
ducting the arrest. See Abbott v. Sangamon County,
705 F.3d 706, 715 (7th Cir. 2013); Fox v. Hayes, 600 F.3d
819, 837 (7th Cir. 2010); see also Devenpeck v. Alford, 543
U.S. 146, 153 (2004). It is enough that probable cause
exists as to an offense, and here the failure to produce
a valid driver’s license provided probable cause to
arrest Ramos at that time. Accordingly, the district court
properly granted summary judgment on the § 1983
claim that the defendants violated his Fourth Amend-
ment rights in his detention and arrest.
  Ramos also argues that the district court erred in
granting summary judgment to the defendants on his
wrongful prosecution claim, but he fails to challenge
the claim actually addressed by the district court. In
his complaint, Ramos conflated his claims for false
arrest and wrongful prosecution, such that it was
difficult to discern whether the malicious prosecution
claim was brought under the Fourth Amendment as well
as the Fourteenth Amendment, or whether the Fourth
Amendment was applicable only to his false arrest claim.
The district court and the defendants clearly believed
No. 10-3425                                                13

that only Fourteenth Amendment due process claims
were brought as to malicious prosecution, and addressed
the argument and decision accordingly. That reading
was certainly reasonable. In his summary judgment
response as to the malicious prosecution claim, Ramos
begins by declaring that the false statements of the
officer or officers are actionable under the Fourth and
Fourteenth Amendments, but then proceeds to argue
only along Fourteenth Amendment lines. At no point
does Ramos argue that a Fourth Amendment claim sur-
vives even if his Fourteenth Amendment claim fails.
Nor does Ramos identify any seizure that would form
the basis of a Fourth Amendment claim of malicious
prosecution. The theory behind such a Fourth Amend-
ment claim is that officers who misrepresent evidence
to prosecutors may be held accountable for the seizure
based on that misinformation. In other words, the theory
is that if a person is in jail awaiting trial on charges
that were approved by a prosecutor based, unknowingly,
on false information from the officers, and his seizure
would lack probable cause without that false evidence,
that person could pursue an action against the officers.
Under that theory, the constitutional deficiency is at-
tributable to the officers, not the prosecutor, because the
determination by the prosecutor was not an independent
one, but rather was manipulated by the officers who
supplied the fabricated evidence. See, e.g., Parish v. City of
Chicago, 594 F.3d 551, 554 (7th Cir. 2009); Tully v. Barada,
599 F.3d 591, 595 (7th Cir. 2010); Johnson v. Saville, 575
F.3d 656, 663 (7th Cir. 2009). We need not determine the
contours of such a claim, however, in this court because
14                                             No. 10-3425

Ramos failed to make any arguments below that his
seizure (his detention for 253 days pending his acquit-
tal) was attributable to the allegedly false statements by
the officers. In fact, Ramos concedes that, although his
bond was revoked because of the arrest for residential
burglary, his detention was for the unlawful use of a
weapon charges. All of the time served was credited to
the weapons charge to which he pled guilty, and there-
fore was a part of his incarceration on that conviction.
It is not a seizure related to this case at all.
  In fact, Ramos relies on that jail time, and an alleged
loss of employment, as his sole basis for damages under
the malicious prosecution claim, but it fails for the
same reason. The jail time was attributable entirely to
the weapons charge and conviction, and therefore
cannot form the basis for damages for his residential
burglary claim because he would have served that time
regardless of the burglary charge. The only other basis
for damages alleged is the claim that, as a result of the
defendants’ wrongful acts, he lost his job, but Ramos
later admitted that “[a]s of the day of his arrest, Septem-
ber 27, 2007, Ramos had been unemployed for four
months.” Plaintiff’s Response to Defendant’s Rule 56.1
Statement #40. Even though both the defendants and
the district court repeatedly raised the problem of the
lack of any damages, Ramos provided no other argu-
ment for damages until the reply brief in this court,
which is far too late. United States v. Vallone, 698 F.3d
416, 448 (7th Cir. 2012). The single sentence Ramos articu-
lated about damages in the summary judgment briefing
before the district court was that “under long standing
No. 10-3425                                                  15

Illinois law, damages are presumed when the prosecu-
tion results in incarceration. Schattgen v. Holnback, 149
Ill. 646 (1894).” Whether or not this precedent from
1894 still holds, any presumption of damages is surely
defeated in a case where all of the time served is
ultimately credited toward an unrelated weapons viola-
tion. And even if this brief sentence constituted an ar-
gument raised below (and we doubt that this perfunc-
tory argument could be, see United States v. Wescott, 576
F.3d 347, 356 (7th Cir. 2009)), Ramos failed to raise the
issue of damages before this court and therefore waived
the argument on appeal. The district court properly
granted summary judgment to the defendants on the
malicious prosecution claims under § 1983.
   Accordingly,   the   decision     of   the   district   court
is A FFIRMED.




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