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

No. 01-4086
DEREK A. SMITH,
                                              Plaintiff-Appellant,
                                 v.

BALL STATE UNIV., BALL STATE UNIV. BOARD OF TRUSTEES,
BALL STATE UNIV. POLICE DEPT., JOHN ROGERS,
JOHN FOSTER, CRAIG HODSON AND RHONDA CLARK,
                                           Defendants-Appellees.
                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
        No. IP00-0478-C-B/S—Sarah Evans Barker, Judge.
                          ____________
       ARGUED MAY 23, 2002—DECIDED JULY 8, 2002
                    ____________


  Before FLAUM, Chief Judge, and BAUER and ROVNER,
Circuit Judges.
   FLAUM, Chief Judge. Plaintiff-Appellant Derek A. Smith
filed suit under 42 U.S.C. §§ 1983 and 1988 alleging that
John Rogers, John Foster, Craig Hodson and Rhonda Clark
(collectively “Defendants” or “the officers”), all members of
the Ball State University Police Department, used excessive
force in detaining him. The district court granted summary
judgment in favor of Defendants, and Smith appeals. For
the reasons stated herein, we affirm.
2                                              No. 01-4086

                     I. Background
  At the time of the incident, Smith was a student at
Ball State University who suffered from juvenile dia-
betes. On March 19, 1998, Smith had a diabetic shock epi-
sode at the Ball State University Student Center. The
Student Center’s hotel desk clerk contacted the Ball State
Police Department, and campus police Officers Rhonda
Clark and Craig Hodson responded to the call. When they
arrived, Officers Clark and Hodson witnessed Smith act-
ing strangely. They approached Smith and recognized a
medical identification bracelet that alerted them to Smith’s
medical condition. Officers Clark and Hodson contacted
emergency medical personnel, who treated and released
Smith.
  Four days later, Smith again lapsed into diabetic shock.
This time, Smith was operating a motor vehicle, which he
drove onto a sidewalk on Ball State’s campus. A campus
shuttle bus driver witnessed the incident and contacted
campus police dispatch. The bus driver reported a possible
drunk driver and stated that the vehicle nearly struck
several pedestrians. Police dispatch contacted Corey Wil-
kinson, a Ball State student who also worked as a parking
attendant, and asked him to investigate the situation.
Wilkinson walked to the scene, observed Smith seated in
his car and noted that the vehicle was running. Wilkinson
tapped the window and attempted to gain Smith’s attention,
but Smith was unresponsive. Wilkinson contacted police
dispatch, stated that the driver was incoherent and that
dispatch should send an ambulance. Wilkinson may have
mentioned that the driver was drunk or on drugs, although
he does not recall specifically whether he provided dispatch
with such information.
No. 01-4086                                                       3

  Several minutes later, Ball State Police Officers John
Rogers and John Foster arrived at the scene.1 Officer Foster
opened the passenger door and turned off the car’s ignition.
The officers asked Smith to exit his vehicle, but Smith was
unresponsive. Accordingly, the two officers forcibly at-
tempted to extract Smith from his car. Officer Rogers
initially tried to remove Smith; however, Officer Foster in-
tervened because Rogers was an intern. Foster used a
technique known as a “straight arm bar” and, with Rogers’s
assistance, extracted Smith from his car.
   While Foster and Rogers were removing Smith from his
car, Officer Craig Hodson, who had responded to the Stu-
dent Center clerk’s call four days earlier, also arrived at the
scene. Because Foster and Rogers were forcibly removing
Smith from his vehicle, Officer Hodson believed that the
three individuals were engaged in a struggle. As a result,
Officer Hodson jumped across the hood of Smith’s vehicle
and attempted to apply a “knee strike” to Smith’s leg. How-
ever, Officer Hodson slipped and, rather than apply a knee
strike, tackled Rogers, Foster and Smith. The three officers
then held Smith’s face to the ground and handcuffed him.
When they finally brought Smith to a seated position, Of-
ficer Hodson recognized him from the March 19 incident. In
addition, Smith’s roommate, Dale Englehardt, coinciden-
tally happened upon the scene. According to Englehardt, he
informed the officers that Smith was a diabetic and pointed
out Smith’s medical identification bracelet. Despite this
information and the fact that Officer Hodson recognized
Smith as a diabetic, the officers left Smith handcuffed until
an ambulance arrived several minutes later. Ball State Uni-
versity Officer Rhonda Clark also arrived after her col-
leagues had handcuffed Smith. She remained with Smith
until EMS personnel arrived. As a result of the encounter,


1
  John Rogers was technically a “reserve officer’s intern.” For sim-
plicity, however, we will refer to him as Officer Rogers.
4                                                   No. 01-4086

Smith sustained scratches and bruises on his face, marks
on his wrists from the handcuffs and a marble-sized bump
on his head.
  Smith filed suit alleging that the officers violated his
constitutional rights and committed certain state law torts
against him.2 After discovery, the Defendants moved for
summary judgment, arguing that Smith failed to establish
a constitutional violation and that, if he did, the officers
were entitled to qualified immunity. The district court
granted Defendants’ motion. The district court first held
that Smith’s detention was an investigatory detention and
not a formal arrest. The court then noted that Smith’s de-
tention was reasonable, particularly due to the risks posed
by an unresponsive driver in command of a vehicle and the
fact that the officers reasonably believed Smith was im-
paired by either drugs or alcohol. Finally, relying on Tom
v. Voida, 963 F.2d 952 (7th Cir. 1992), the district court
granted summary judgment on Smith’s excessive force
claim. The court stated that Smith’s unresponsiveness ne-
cessitated the use of minimal force to remove Smith from
his vehicle. Moreover, the court held that the use of hand-
cuffs “was reasonable given the context of the investigatory
stop, Smith’s lack of cooperation with officers on the scene,
and Defendants’ goal of protecting themselves and the
public from harm.”

                       II. Discussion
  We review the district court’s grant of summary judgment
de novo. Summary judgment is proper only when “the


2
   Smith’s complaint also named Ball State University and its sub-
sidiary units as Defendants. However, the district court granted
summary judgment on those claims pursuant to the Eleventh
Amendment, and Smith does not appeal that decision. Accord-
ingly, we are left with Smith’s lawsuit against the individual of-
ficers who had personal involvement in his detention.
No. 01-4086                                                       5

pleadings, depositions, answers to interrogatories, and ad-
missions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a mat-
ter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). In determining wheth-
er a genuine issue of material fact exists, we view all facts
and draw all inferences in favor of the nonmovant. Outlaw
v. Newkirk, 259 F.3d 833, 836 (7th Cir. 2002). If the record
as a whole “could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (internal quotations omitted).
  Smith raises two arguments on appeal, although they are
significantly related. First, Smith contends that the dis-
trict court erred in analyzing his detention as a legitimate
Terry stop as opposed to a formal arrest requiring probable
cause.3 Second, Smith maintains that the district court
improperly granted summary judgment on his excessive
force claim. We believe that although the issue of whether
the officers’ detention of Smith evolved into a formal arrest
is a close one, the district court properly analyzed the en-
counter as an investigatory detention. Furthermore, if the
stop did evolve into a formal arrest, the Defendants had
probable cause to arrest Smith and therefore acted properly
under the Fourth Amendment. Finally, we hold that the
officers did not use excessive force in detaining Smith. The
overlap between these issues will become apparent below;
however, because Smith’s two claims allege independent



3
  A Terry Stop, first recognized by the Supreme Court of the
United States in Terry v. Ohio, 392 U.S. 1 (1968), is a brief, non-
intrusive detention that allows law enforcement officers to in-
vestigate possible criminal activity despite the absence of probable
cause to arrest formally.
6                                                    No. 01-4086

constitutional violations, we address each argument sep-
arately.


    A. Investigative Stop or Formal Arrest
  Smith’s first argument focuses on the distinction between
an investigatory detention and a formal arrest. As our prior
cases dealing with this issue demonstrate, the differences
between a Terry stop and a formal arrest are subtle, see
United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994),
but important in most cases. They are important because
the legitimacy of a Terry stop depends upon an officer’s
ability to produce articulable facts giving rise to a reason-
able suspicion that a defendant “has been, is, or is about to
be engaged in criminal activity.” United States v. Smith, 3
F.3d 1088, 1095 (7th Cir. 1993). In contrast, a formal arrest
requires probable cause, a more demanding standard.
United States v. Weaver, 8 F.3d 1240, 1243 (7th Cir. 1993).
Ordinarily, the importance of the distinction between Terry
stop and formal arrest is critical because our characteriza-
tion of the encounter between Smith and the Defendants
determines what requirements the Fourth Amendment
imposes upon law enforcement agents.4 See United States v.
McCarthur, 6 F.3d 1270, 1275 (7th Cir. 1993). We have often
repeated that no bright line exists to determine when a
legitimate Terry stop evolves into an illegal arrest. United
States v. Vega, 72 F.3d 507, 515 (7th Cir. 1995); Weaver, 8
F.3d at 1243; Smith, 3 F.3d at 1094. Rather, we evaluate
the totality of the circumstances of each case, and we ex-
amine separately each stage in the encounter between
Defendants and Smith. Id.



4
  The distinction is less important in this case because, as our
foregoing discussion illustrates, the officers had probable cause to
arrest Smith.
No. 01-4086                                                 7

   We first note that Defendants had a reasonable suspicion
of criminal activity to justify detaining Smith when they
first happened upon the scene. See Tom v. Voida, 963 F.2d
952, 957 (7th Cir. 1992). Officers Rogers and Foster received
a police dispatch stating that a vehicle had veered off the
street and had come to rest on a campus sidewalk, nearly
striking several pedestrians. When the officers arrived to
investigate, they observed Smith’s vehicle on the sidewalk.
The vehicle was running, and the officers’ attempt to com-
municate with Smith was unsuccessful. These circum-
stances, in and of themselves, allowed a reasonable officer
to believe that “criminal activity [was] afoot” and justified
a brief investigatory detention. United States v. Yang, 286
F.3d 940, 949 (7th Cir. 2002).
  Having found that the officers’ actions were justified at
their inception, we must next examine whether the ongoing
detention was “reasonably related in scope to the circum-
stances which justified the interference in the first place.”
Vega, 72 F.3d at 515 (citing Smith, 3 F.3d at 1095). This
standard requires us to evaluate Defendants’ attempt to
remove Smith from the vehicle and their concomitant use of
handcuffs. Smith contends that while the officers initially
acted reasonably, at some point the encounter evolved from
a legitimate Terry stop into a formal arrest that lacked
probable cause. According to Smith, this “trigger point” oc-
curred immediately after the officers turned off Smith’s car
and attempted unsuccessfully to communicate with him. At
that time, Smith maintains that (1) because he merely was
unresponsive (and not resisting), the officers had no author-
ity to remove him from the car, and (2) he posed no danger
to anyone in the area. We disagree with both contentions.
First, police officers are permitted to order a driver to exit
his or her vehicle during the course of an investigatory stop.
See Pennsylvania v. Mimms, 434 U.S. 106, 110-11 (1977)
(“we have specifically recognized the inordinate risk con-
fronting an officer as he approaches a person seated in an
8                                               No. 01-4086

automobile.”); New York v. Class, 475 U.S. 106, 115-16
(1986) (“officers may, consistent with the Fourth Amend-
ment, exercise their discretion to require a driver who com-
mits a traffic violation to exit the vehicle even though they
lacked any particularized reason for believing the driver
possesses a weapon.”). This rule comports with the Fourth
Amendment’s reasonableness requirement for obvious rea-
sons. An officer who confronts a potentially intoxicated
driver must have the discretion—without probable cause—
to order the individual out of the vehicle. Anything less
would allow an unfit driver to retain control of his or her
car.
  Smith’s contention that he posed no danger to anyone in
the area is similarly unavailing. An officer may detain a
suspect to preserve the safety of the officers, the suspect
and the general public. See Terry, 392 U.S. at 24 (“. . . we
cannot blind ourselves to the need for law enforcement
officers to protect themselves and other prospective victims
of violence in situations were they may lack probable cause
for an arrest.”). In this case, Smith posed a threat to him-
self, the officers and the general public, even after Officer
Foster turned off Smith’s vehicle and attempted unsuccess-
fully to communicate with him. Indeed, contrary to Smith’s
assertions, his unresponsiveness did not neutralize the safe-
ty threat, but rather exacerbated it by adding an element of
unpredictability. We thus find that the decision to remove
Smith from his vehicle was a constitutionally permissible
action pursuant to a legitimate investigatory stop under
Terry.
  The officers’ decision to handcuff Smith presents a closer
question, but one that we ultimately need not decide to
resolve this appeal. Even if we were to hold that the con-
tinued use of handcuffs transformed the initial Terry stop
into a formal arrest, the officers had probable cause to ar-
rest Smith. An officer has probable cause to arrest when
“the totality of the facts and circumstances within his
No. 01-4086                                                   9

knowledge and of which he has reasonably trustworthy in-
formation is sufficient that a prudent person would believe
that the suspect committed or was committing an offense.”
Marshall v. Teske, 284 F.3d 765, 770 (7th Cir. 2002) (citing
United States v. Sawyer, 224 F.3d 675, 678-79 (7th Cir.
2000)). Critically, the probable cause analysis is an ex ante
test: “the fact that the officer later discovers additional evi-
dence unknown to her at the time of the arrest is irrelevant
as to whether probable cause existed at the crucial time.
Qian v. Kautz, 168 F.3d 949, 954 (7th Cir. 1999) (citing
Hirsch v. Burke, 40 F.3d 900, 904 (7th Cir. 1994)). The “cru-
cial time” in this case was the point at which the officers
decided to handcuff Smith. At that time, the officers
reasonably believed Smith to be an intoxicated driver, a
crime in the state of Indiana. Ind. Code § 9-30-5-2. In addi-
tion, it is undisputed that Smith did not respond to the
officers’ requests to exit his vehicle, and Indiana law makes
it a misdemeanor to resist or obstruct an officer while he is
performing any act in his official capacity and with lawful
authority. Ind. Code § 35-44-3-3; but see Teske, 284 F.3d at
771 (rejecting a similar argument under Wisconsin law).
Thus, even accepting Smith’s argument as true (i.e., that
the officers arrested Smith), no Fourth Amendment viola-
tion occurred because the officers had probable cause to
believe that Smith had committed a crime.


  B. Excessive Force
  Smith’s excessive force claim is significantly intertwined
with our preceding discussion. We address it separately to
show precisely why the Officers’ use of force in this case did
not rise to the level of a constitutional violation. Smith ar-
gues that the officers used excessive force at least three
times during the encounter: (1) his forced removal from the
car; (2) Officer Hodson’s failed attempt to apply a “knee
strike”; and (3) the Officers’ use of handcuffs. We analyze
10                                                  No. 01-4086

claims alleging that an officer used excessive force under
the Constitution’s Fourth Amendment and its reasonable-
ness requirement.5 Under this standard, the relevant in-
quiry is “whether the officers’ actions [were] objectively rea-
sonable in light of the facts and circumstances confronting
them.” Graham v. Connor, 490 U.S. 386, 397 (1989) (inter-
nal quotations omitted). The amount of permissible force
depends upon the specific situation, including “the severity
of the crime at issue, whether the suspect poses an immedi-
ate threat to the safety of the officers or others, and wheth-
er he is actively resisting arrest or attempting to evade
arrest by flight.” Id. at 396. When police officers face what
is essentially a fluid situation, they are entitled to graduate
their response to meet the demands of the circumstances
confronting them. Id. at 396-97.
   Viewing the evidence in the light most favorable to Smith,
we agree with the district court’s that no reasonable jury
could conclude that the Defendants used excessive force in
detaining Smith. As discussed previously, the officers were
entitled to order Smith to exit his vehicle. See Mimms, 434
U.S. at 110-11; Class, 475 U.S. at 115-16. When Smith
failed to do so, the officers were justified in using force to
remove him, particularly given the potential threat to pub-
lic safety of an intoxicated driver in command of a running
vehicle.
  Further, when Officer Hodson arrived at the scene, his
belief that Officers Rogers and Foster were engaged in a


5
  In Graham, the Supreme Court considered the standard that
should be used to assess an individual’s claim that law enforce-
ment officials used excessive force in the course of making an
arrest, investigatory stop, or other seizure of an individual. 490
U.S. at 388. As a result, our inquiry is the same, regardless of
whether Smith’s detention was an investigatory stop or a formal
arrest.
No. 01-4086                                                11

struggle with Smith was reasonable. We must evaluate Of-
ficer Hodson’s use of force not with the benefit of hindsight,
but rather as it appeared to the officer at the time of the
encounter. Graham, 490 U.S. at 396. Although we accept as
true the fact that Smith was not actively resisting, a rea-
sonable officer who happened on the scene could reasonably
misconstrue Smith’s unresponsiveness as resistance re-
quiring the minimal use of force. See Edwards v. Cabrera,
58 F.3d 290, 293 (7th Cir. 1995) (focusing upon whether an
officers’ mistaken belief that probable cause existed was
reasonable in the qualified immunity context). Thus, Officer
Hodson’s attempt to apply a knee strike—failed as it may
have been—did not violate the Fourth Amendment.
  Finally, we do not believe the officers’ use of handcuffs
was an unreasonable use of force. Rather, the Defendants
attempted to detain an unresponsive individual about
whom they had, at the very least, “a reasonable suspicion
of criminal activity.” Voida, 963 F.2d at 958 (citing United
States v. Taylor, 716 F.2d 701, 708-09 (9th Cir. 1983). While
the officers did not remove the handcuffs after learning of
Smith’s medical condition, the use of force was measured,
brief and appropriate to accomplish the purposes of the
investigatory stop—securing Smith and his vehicle, dispel-
ling any notion that Smith was engaged in criminal activity
and preserving the officers’, public’s and even Smith’s
safety. See id.


                     III. Conclusion
  The district court correctly granted summary judgment in
this case. Officers Rogers and Foster appropriately detained
Smith to investigate whether he was driving while under
the influence of drugs or alcohol. If the officers did surpass
the permissible bounds of a Terry stop, they had probable
cause to arrest Smith and could reasonably resort to the use
of handcuffs. Finally, the officers’ minimal use of force was
12                                          No. 01-4086

objectively reasonable given the totality of the circum-
stances. The decision of the district court is therefore
AFFIRMED.

A true Copy:
      Teste:

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




                  USCA-97-C-006—7-8-02
