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

Nos. 04-1261 & 04-1605
MARK D. JONES and
THERESA A. JONES,
                                          Plaintiffs-Appellees,
                                            Cross-Appellants,
                              v.

RON WILHELM,
                                        Defendant-Appellant,
                                             Cross-Appellee.
                       ____________
         Appeals from the United States District Court
              for the Western District of Wisconsin.
         No. 03-C-25—Barbara B. Crabb, Chief Judge.
                       ____________
 ARGUED SEPTEMBER 24, 2004—DECIDED OCTOBER 3, 2005
                   ____________


  Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,
Circuit Judges.
  WILLIAMS, Circuit Judge. While executing a search
warrant, Detective Ron Wilhelm and his team of officers
mistakenly entered the apartment of Mark and Theresa
Jones. Mr. and Mrs. Jones sued Detective Wilhelm pursu-
ant to 42 U.S.C. § 1983 alleging a violation of their Fourth
Amendment right to be free of unreasonable searches and
seizures. In particular, the Joneses claimed that Wilhelm
failed to take reasonable steps to discern the proper target
2                                   Nos. 04-1261 & 04-1605

of the warrant before execution of the warrant (“the war-
rant claim”) and failed to give them sufficient time to
answer their door before entering (“the knock-and-announce
claim”).
  On the knock-and-announce claim, the district court
denied Wilhelm’s motion for summary judgment. We affirm
the district court’s denial of summary judgment because the
alleged facts taken in a light most favorable to the Joneses
indicate a violation of their clearly established rights. On
the warrant claim, the district court granted summary
judgment in favor of Wilhelm on qualified immunity
grounds. We find, however, that Wilhelm violated the
Joneses’ clearly established rights where he (1) executed a
validly issued warrant he knew to be facially ambiguous;
and (2) circumvented the magistrate judge and resolved the
warrant’s ambiguity on his own. Therefore, we reverse the
district court’s grant of summary judgment in favor of
Wilhelm on qualified immunity grounds.
  In addition, in evaluating the Joneses’ warrant claim, we
find that the pleadings, depositions, answers to interrogato-
ries, and admissions on file, together with any affidavits,
show that there are no genuine issues of fact regarding
Wilhelm’s deprivation of the Joneses’ rights as secured
by the Constitution or Wilhelm’s status as a person acting
under color of state law. Thus, we grant summary judgment
in favor of the Joneses on their warrant claim.


                    I. BACKGROUND
  Mr. and Mrs. Jones live at 220 W. Burnett Avenue in
Grantsburg, Wisconsin. The building at 220 W. Burnett
Avenue contains two apartments on the lower level and two
on the upper level. The upstairs apartments are labeled
“#1” and “#2.” Apartment #1 is on the north side, and
apartment #2 is on the south side. At the time of the search
that led to this suit, the Joneses resided in apartment #1,
Nos. 04-1261 & 04-1605                                     3

and Jody Gruenwald-Anderson occupied apartment #2.
There are two entrances to 220 W. Burnett Avenue, one in
the front (west) and one in the back (east). Each entrance
offers a staircase leading to the second floor. Someone who
uses the front door and accompanying staircase faces east
both when entering the building and when reaching the
second floor. Conversely, parties using the rear door faces
west both when entering the building and upon alighting at
the top of the stairs.
  Early in 2002 Wilhelm received a tip from Valerie
Kauffman, who lived on the first floor of 220 W. Burnett
Avenue, regarding drug activity in the building. Kauffman
alleged that some upstairs residents were involved in drugs,
but she did not specify which of the two upstairs apart-
ments they occupied. In support of her claim, Kauffman told
Wilhelm he should “just watch the [pedestrian] traffic, you
will see a lot of activity in this building.” In response,
Wilhelm performed surveillance on the building for approxi-
mately ten nights. During his surveillance, Wilhelm
observed visitors enter the building from both entrances.
Wilhelm could also see “shadows” moving in apartment #1,
but he could not see into apartment #2, as its windows were
covered with blankets.
  The parties dispute what Wilhelm actually saw during his
surveillance. Wilhelm testified in his deposition that he saw
numerous people use the back door, while only a few used
the front door. Furthermore, he stated that every time
someone entered through the back door at night, he would
observe activity in apartment #1. He also acknowledged
that this activity may have been non-drug related. Mr.
Jones contends that Wilhelm could have made no such
observations, as only a neighbor for whom Jones provided
child care and the neighbor’s child ever used the back
door, which offered no working doorbells and was regularly
kept locked.
4                                  Nos. 04-1261 & 04-1605

   Some time after Wilhelm’s surveillance, Detective Tracy
Finch received a tip from a confidential informant indicat-
ing that Jody Gruenwald-Anderson of 220 W. Burnett
Avenue was manufacturing methamphetamine. The inform-
ant described Gruenwald-Anderson’s apartment as being on
the second floor on the right. Detective Finch obtained a
warrant to search the apartment in question, but the
warrant did not list Gruenwald-Anderson’s name. Instead,
it instructed officers to search “the upstairs apartment on
the right” at 220 W. Burnett Avenue.
  Finch then provided the warrant to Wilhelm for Wilhelm
to execute and gave him the name of the target; Wilhelm
would later recall it as either “Jody Gruenwald” or “Jody
Anderson.” Wilhelm then assembled a group of officers to
execute the warrant and met the officers at the Grantsburg
Village Police Department before driving to the apartment
building to execute the warrant. After leaving the police
department, but before arriving at the apartment building,
Wilhelm realized that the building described in the search
was the same building he had previously surveilled. Based
on his earlier surveillance, Wilhelm was aware there were
two staircases facing opposite directions in the building,
and, he realized that the warrant was unclear where it
directed the team to the “upstairs apartment on the right.”
  Wilhelm, however, clarified the warrant himself by
reaching two conclusions. First, Wilhelm concluded that the
activity he had observed in apartment #1 which corre-
sponded to the pedestrian traffic at the back door at night
corroborated Kauffman’s allegation that there was a lot of
drug activity in the building. By Wilhelm’s logic, only the
alleged drug lab could have caused the increased nightly
traffic at the building’s back door, and because all of the
nightly traffic coincided with activity in apartment #1,
apartment #1 was the most likely location for the lab.
Second, Wilhelm reasoned that since most people used the
building’s rear entrance regardless of their intentions, the
Nos. 04-1261 & 04-1605                                     5

informant’s reference to an upstairs apartment “on the
right” probably meant on the right as viewed from the top
of the rear stairs. This conclusion also pointed Wilhelm
toward apartment #1, the Joneses’ home.
  Armed with these assumptions, Wilhelm arrived at the
building to execute the warrant. Notwithstanding his
determination that the warrant was directed to the back
door, Wilhelm opted to enter 220 W. Burnett Avenue
through the front door. Just inside the front door were
doorbells with names and apartment numbers on them. It
is undisputed that Gruenwald-Anderson’s bell bore her
name and the number of her apartment at that time.
Wilhelm, however, did not read the labels on the door-
bells because he was certain that he had targeted the cor-
rect apartment.
  In his deposition, Wilhelm testified that the team followed
standard operating procedure during the raid. After he
went in the front door, Wilhelm led his team to the first set
of stairs. Once at the top of the stairs, the team went to
apartment #1, which was on the left, but would have been
on the right if the team had used the back entrance and
stairs. On Wilhelm’s order, a member of the team, Deputy
Steven Sacharski, knocked, called out “police, search
warrant,” and kicked in the door. Each member of the team,
however, gives a different time sequence for these opera-
tions:
    • According to Wilhelm, Sacharski knocked, waited
      ten to fifteen seconds, announced, waited a few
      more seconds, and then entered.
    • Deputy Ryan Bybee testified that Sacharski
      knocked and announced, waited five seconds, and
      then entered.
    • According to Officer Dan Wald, there was a
      knock, a pause of two to three seconds, and then
      an announcement. He could not remember how
6                                    Nos. 04-1261 & 04-1605

      long the officers waited after announcing before
      they entered.
    • Sacharski himself testified that he knocked,
      waited ten to fifteen seconds, announced, waited
      “a couple seconds or so,” and then entered.
In summary, the officers’ statements indicate that
Sacharski (1) knocked, (2) waited between two to eighteen
seconds, (3) announced, (4) waited another two seconds, and
(5) entered.
  In contrast, Mr. Jones testified in his deposition that after
hearing a knock at approximately 9:20 P.M. he immediately
got up and “stormed towards the door,” but only managed
to take eight steps before the police entered. As Jones
recalled the situation, the announcement started before the
police entered, but “by the time the word warrant came out,
the door flew open.” Jones gave the time between the start
of the announcement and the officers’ entry as “[m]ere
seconds,” responding affirmatively when asked if this could
mean three to five seconds.
  Once inside, the officers pressed Mr. Jones to the ground
and handcuffed him. The officers also awakened Mrs. Jones,
who was asleep in bed in the other room, and handcuffed
her. Once Wilhelm saw Mrs. Jones, he recognized her and
realized he was in the wrong apartment. He ordered the
handcuffs removed, apologized to the Joneses, and led his
team across the hall, where they forcibly entered apartment
#2.
  In the aftermath of the raid, the Joneses asserted multi-
ple § 1983 claims, two of which are before us. First, in their
warrant claim, they allege that Wilhelm failed to take
“basic and obvious steps” to ascertain the proper target of
the warrant before entering their apartment. Second, in
their knock-and-announce claim, they allege that Wilhelm
failed to wait sufficiently long after announcing his pres-
ence before forcibly entering their home. These actions, they
Nos. 04-1261 & 04-1605                                        7

contend, violated their Fourth Amendment rights.
  Both parties moved for summary judgment on the
warrant claim. Only Wilhelm moved for summary judgment
on the knock-and-announce claim. The district court
granted summary judgment in favor of Wilhelm on the
warrant claim on qualified immunity grounds and denied
Wilhelm’s motion for summary judgment on the knock-
and-announce claim. Wilhelm appeals the district court’s
denial of his motion for summary judgment on the
knock-and-announce claim. The Joneses appeal both the
grant of summary judgment in favor of Wilhelm on the
warrant claim and the denial of their own motion for
summary judgment on the same claim.


                       II. ANALYSIS
A. Qualified Immunity
   The doctrine of qualified immunity shields government
officials against suits arising out of their exercise of discre-
tionary functions “as long as their actions could reasonably
have been thought consistent with the rights they are
alleged to have violated.” Anderson v. Creighton, 483 U.S.
635, 638 (1987). In particular, this doctrine applies to police
officers executing a search warrant, who may claim quali-
fied immunity in suits challenging the constitutionality of
their actions. Jacobs v. City of Chicago, 215 F.3d 758, 767
(7th Cir. 2000).
   In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme
Court set out a two-part test for qualified immunity. First,
a court must decide whether the facts, when viewed in the
light most favorable to the plaintiff, indicate that the
officer’s conduct violated some constitutional right of the
plaintiff. 533 U.S. at 201. Second, if the answer to the
first question is “yes,” then the court must determine
whether the constitutional right violated was “clearly
8                                    Nos. 04-1261 & 04-1605

established” at the time of the alleged violation. Id. The
officer will enjoy qualified immunity unless the court
affirmatively answers both questions. Id.
  Wilhelm urges us to append a third prong to the two-part
Saucier test, contending that “[e]ven if the Court finds that
there was clearly established law which was violated, the
immunity question should be decided based on whether
police officers acted reasonably under the circumstances
they faced.” (Appellant’s Reply Br. at 10.)
   Saucier clearly states, however, that “[t]he relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.” Saucier, 533 U.S. at 202; accord Payne v.
Pauley, 337 F.3d 767, 775-76 (7th Cir. 2003). It goes
without saying that the reasonableness of an official’s
actions is not a factor in determining whether the facts as
alleged constitute a violation of constitutional rights.
Neither is the reasonableness of an official’s actions an
independent factor in determining whether a right is clearly
established, as an official is held to have violated a clearly
established right only where a reasonable officer would
have known the alleged actions to be illegal, if faced with
similar circumstances. Saucier, 533 U.S. at 202; Anderson,
483 U.S. at 640 (explaining that a particular right is clearly
established, even where no court has declared the defen-
dant’s precise alleged activity illegal, so long as pre-existing
law made the activity’s illegality “apparent,” with “[t]he
contours of the right . . . sufficiently clear that a reasonable
official would understand that what he is doing violates
that right.”); see also Siebert v. Severino, 256 F.3d 648, 654-
55 (7th Cir. 2001) (“A violation may be clearly established
if the violation is so obvious that a reasonable state actor
would know that what [he is] doing violates the Constitu-
tion, or if a closely analogous case establishes that the
conduct is unconstitutional.”).
Nos. 04-1261 & 04-1605                                     9

  Thus, following Saucier, we reaffirm that the proper
standard for qualified immunity remains a two-part test
which first examines whether the defendant’s alleged
actions constitute a violation of constitutional rights, and
then determines whether the implicated right was clearly
established at the time. See, e.g., Kiddy-Brown v.
Blagojevich, 408 F.3d 346, 353 (7th Cir. 2005); Leaf v.
Shelnutt, 400 F.3d 1070, 1080 (7th Cir. 2005); Tun v.
Whitticker, 398 F.3d 899, 901-02 (7th Cir. 2005); Velez v.
Johnson, 395 F.3d 732, 735 (7th Cir. 2005); Board v.
Farnham, 394 F.3d 469, 476-77 (7th Cir. 2005).
  In the alternative, Wilhelm asks that when we determine
whether it would have been clear to a reasonable officer
that Wilhelm’s actions violated the Joneses’ constitutional
rights, we impute to the hypothetical, reasonable officer
only Wilhelm’s actual knowledge, and not the knowledge he
ought reasonably to have amassed during the execution of
the warrant. Such an interpretation, however, would enable
state agents to trample on the constitutional rights of
citizens by maintaining willful ignorance of what reason-
able officers should have known, and we refuse to take such
a step. In determining whether a defendant’s alleged
actions violated a clearly established right, courts may
properly take into account any information the defendant
ought reasonably to have obtained. See Pounds v.
Griepenstroh, 970 F.2d 338, 340 (7th Cir. 1992).


B. The Warrant Claim
  We review rulings on motions for summary judgment
de novo. Bell v. Duperrault, 367 F.3d 703, 707 (7th Cir.
2004). It is undisputed in this case that in 2002 the Joneses
had a right to be free from unreasonable searches and
seizures and had a right to be the subject of a warrant only
when the warrant was supported by probable cause and
particularly described the place and people to be searched.
10                                  Nos. 04-1261 & 04-1605

U.S. CONST. Amend. IV (“The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause . . .
particularly describing the place to be searched, and the
persons or things to be seized.”). The focus of this appeal,
therefore, is whether the actions as alleged by the Joneses
constitute a violation of their clearly established rights.
  In evaluating an alleged violation of the Warrant Clause
of the Fourth Amendment, it is helpful to distinguish
between the two distinct phases of a search warrant: the
issuance of the search warrant and the execution of the
search warrant. As to the issuance of a search warrant, the
Fourth Amendment requires that a warrant be supported
by probable cause and particularly describes the place to be
searched. Before an officer may undertake a search, the
Fourth Amendment “require[s] the judgment of a magis-
trate on the probable-cause issue and the issuance of a
warrant.” Chambers v. Mahoney, 399 U.S. 42, 51 (1970); see
also Illinois v. Gates, 462 U.S. 213, 239 (1983) (“Sufficient
information must be presented to the magistrate to allow
that official to determine probable cause; his action cannot
be a mere ratification of the bare conclusions of others.”).
While magistrates do not possess sole discretion to make
probable-cause determinations, “[o]nly in exigent circum-
stances will the judgment of the police as to probable cause
serve as a sufficient authorization for a search.” Id.
  In addition, “[t]he Warrant Clause of the Fourth Amend-
ment categorically prohibits the issuance of any warrant
except one ‘particularly describing the place to be searched
and the persons or things to be seized.’ ” Maryland v.
Garrison, 480 U.S. 79, 84 (1987); Jacobs, 215 F.3d at 767.
“The uniformly applied rule is that a search conducted
pursuant to a warrant that fails to conform to the particu-
larity requirement of the Fourth Amendment is unconstitu-
Nos. 04-1261 & 04-1605                                   11

tional.” Massachusetts v. Sheppard, 468 U.S. 981, 988 n. 5
(1984). Absent exigent circumstances, nothing—neither the
determination of probable cause nor the confirmation that
a warrant is sufficiently particular—is meant to be left
to the discretion of police officers executing a warrant.
United States v. Brown, 832 F.2d 991, 996 (7th Cir. 1987)
(citing Stanford v. Texas, 379 U.S. 476, 485 (1965)).
  Here, we find that the warrant was valid when it was
issued despite the lack of diligence displayed by the police
force in failing to ensure that Gruenwald-Anderson’s name
and apartment number appeared on the warrant and
despite the fact that the scope of the warrant turned out
to be ambiguous. See Garrison, 480 U.S. at 85-86 (find-
ing warrant valid when issued despite the fact that the
scope of the warrant turned out to be ambiguous); U.S. v.
White, 416 F.3d 634, 638 (7th Cir. 2005) (finding a search
warrant described with sufficient particularity the premises
to be searched where the police conducted a reasonable
investigation, which did not suggest that the house actually
contained more than one unit, notwithstanding that
ultimately the house targeted was not a single family
residence as described in the warrant but actually a
multi-unit, multi-purpose building).
  Turning then to the execution of the warrant, we find that
Wilhelm’s conduct in executing the warrant violated the
Joneses’ clearly established Fourth Amendment rights. The
warrant here instructed officers to search “the upstairs
apartment on the right” at 220 W. Burnett Avenue. It is
undisputed that, upon being assigned to execute the search
warrant, Wilhelm recognized the address from his earlier
surveillance and knew immediately that the building
contained two staircases. (Appellant Opening Br. at 12-13;
Appellant Reply Br. at 3.) Based on this prior knowledge,
Wilhelm knew that if he took the back staircase, then the
“upstairs apartment on the right” would lead him to the
Joneses’ apartment, and, in the alternative, if he took the
12                                       Nos. 04-1261 & 04-1605

front staircase, then the warrant would lead him to
Gruenwald-Anderson’s apartment. Id. By his own admis-
sion, therefore, Wilhelm knew before he executed the
warrant that the phrase “upstairs apartment on the right”
would lead him to a different apartment depending on
which staircase taken. Where a warrant is open to
more than one interpretation, the warrant is ambiguous
and invalid on its face and, therefore, cannot be legally
executed by a person who knows the warrant to be ambigu-
ous. Garrison, 480 U.S. at 86-87.
  We must emphasize that the Joneses’ clearly-established
rights were not violated because the warrant turned out
to be ambiguous. Rather, the Joneses’ rights were vio-
lated because Wilhelm knew the warrant did not particu-
larly describe the place to be searched based on his prior
surveillance of the building.1 Wilhelm recognized the
warrant as ambiguous before the execution of the warrant,
but failed to immediately stop execution and seek the
necessary clarification of a warrant in order to make certain
the warrant particularly described the place to be search as


1
   The dissent acknowledges that Wilhelm was aware of the layout
of the building and allegations of illegal drug activity on its second
floor prior to executing the warrant. The dissent also acknowl-
edges that Wilhelm targeted “the Joneses’ apartment based on his
own observations of traffic in and out of the building followed by
activity in plaintiffs’ apartment.” Despite these acknowledgments,
the dissent concludes that “[f]rom Wilhelm’s perspective, the
warrant was not ambiguous.” If Wilhelm knew the layout of the
building, then he had to recognize that the warrant’s direction to
search the “upstairs apartment on the right” was ambiguous
immediately upon reading the warrant. In other words, to
acknowledge that Wilhelm used his beliefs to determine the target
of the warrant is to acknowledge that the warrant was ambiguous
on its face. Otherwise, if the warrant specifically targeted the
Joneses’ apartment, then Wilhelm would have no need to leverage
his personal observations.
Nos. 04-1261 & 04-1605                                       13

called for by the Fourth Amendment. Garrison, 480 U.S. at
87 (forbidding the execution of a search warrant a police
officer knows to be ambiguous).
  In this situation, the Fourth Amendment prohibits
Wilhelm from applying his earlier surveillance and subse-
quent deductions to resolve the warrant’s ambiguity rather
than presenting those observations to a magistrate for
determination.2 It is undisputed that based on observations
Wilhelm made during his surveillance of 220 W. Burnett
Avenue, he concluded that Detective Finch’s informant was
more likely to have used the rear door and thus to have
described apartment #1, not apartment #2, as being “on the
right.” This determination of which apartment was more
likely to contain contraband, thereby meriting a constitu-
tionally acceptable search, constitutes an evaluation of
probable cause that the Fourth Amendment requires be left
to the magistrate absent exigent circumstances. Chambers,
399 U.S. at 51.


    1. The good faith exception does not apply.
  We recognize that an erroneous description in a warrant
does not necessarily invalidate the subsequent execution of
a warrant search. See, e.g., U.S. v. Stefonek, 179 F.3d 1030,
1033 (7th Cir. 1999) (finding that the failure of a search


2
   The dissent allows Wilhelm the discretion to use his prior
surveillance in order to determine the proper target for the
execution of the warrant, concluding that Wilhelm had a good-
faith basis to target the Joneses’ apartment. Nothing in the
precedent of the Supreme Court or this circuit, however, affords
an officer any discretion to interpret a warrant. Clearly estab-
lished federal law states that, absent exigent circumstances,
nothing is meant to be left to the discretion of police officers
executing a warrant. Brown, 832 F.2d at 996 (citing Stanford v.
Texas, 379 U.S. 476, 485 (1965)).
14                                     Nos. 04-1261 & 04-1605

warrant to particularly describe things to be seized, in
violation of the Fourth Amendment, did not require sup-
pression of evidence seized where the search conformed to
the particular description contained in the affidavit). Even
if a warrant is ultimately found to be unsupported
by probable cause or lacking in particularity, searches
conducted pursuant to the warrant may be valid under the
good-faith exception set forth in United States v. Leon, 468
U.S. 897, 926 (1984). For a warrant search to qualify for the
good-faith exception, however, the officers conducting the
search must have manifested an objective good-faith belief
in the validity of the warrant. Leon, 468 U.S. at 926.
Execution of search warrants, therefore, should be exam-
ined in light of “the need to allow some latitude for honest
mistakes that are made by officers in [this] dangerous and
difficult process.” Garrison, 480 U.S. at 87.
  Wilhelm had prior knowledge of the building’s layout
before executing the warrant. As a result, he does not
qualify for any good-faith exception. Where an officer
executing a warrant knows or should have known that a
warrant, which was valid when issued, now lacks the
necessary particularity, then that officer cannot legally
execute the warrant.3 Id. at 86. Furthermore, if an officer
obtains information while executing a warrant that puts
him on notice of a risk that he could be targeting the wrong
location, then the officer must terminate his search. Id. at
87; Jacobs, 215 F.3d at 769 (holding that while executing a


3
  As we discussed, Wilhelm knew from his prior surveillance that
the warrant was not sufficiently particular to target the Joneses’
apartment, and, therefore, he could not lawfully execute the
warrant there. Yet the dissent reasons that it was Wilhelm’s prior
surveillance that provided him with a good-faith basis to target
the Joneses’ apartment. His prior surveillance, however, is the
precise reason he lacks good faith—Wilhelm knew from his prior
observations that the warrant on its face was ambiguous.
Nos. 04-1261 & 04-1605                                     15

warrant, “[a]t the moment the Defendant Officers discov-
ered the defect in the description of the place to be
searched, they were obligated to cease that search if they
could not determine which apartment was properly the
subject of the warrant.”).
  In support of his contention that his actions in execut-
ing the warrant did not constitute a violation of the Joneses’
clearly established rights, Wilhelm cites the Fourth Cir-
cuit’s decision in United States v. Owens, 848 F.2d 462, 463
(4th Cir. 1988) for the proposition that a reasonable officer
may augment a warrant with his own personal knowledge
in order to resolve an ambiguity.
  In Owens, officers acted upon a warrant authorizing them
to search an occupied apartment on the third floor of a
named building, only to discover that there were two
separate apartments on that floor. Owens, 848 F.2d at 465.
As one of the apartments was vacant, however, they
searched the other one, noting the affidavit’s description
of an occupied apartment. Id. at 463, 465. While officers
executing a warrant must generally suspend their search if
they discover information that renders the warrant ambigu-
ous, Garrison, 480 U.S. at 87, the Fourth Circuit upheld the
officers’ actions in Owens, as the affidavit supporting the
warrant clearly identified the apartment to be searched as
one that was occupied, and no other apartment fit that
description. Owens, 848 F.2d at 465.
  In this case, Wilhelm knew before he began executing the
warrant that the warrant was ambiguous on its face. In
addition, there is no evidence in this case that the affidavit
in support of the warrant targeted the Joneses’ apartment.
Instead, the evidence establishes that the description given
in both the warrant and the affidavit fit the description
of two separate apartments. Therefore, Owens does not
apply to this case because the key facts in Owens were that
the affidavit supporting the warrant specifically targeted an
16                                  Nos. 04-1261 & 04-1605

occupied apartment, and no other apartment fit the descrip-
tion given in the affidavit.
  Here, a reasonable officer possessing the knowledge
Wilhelm possessed would have discovered the fatal defect
in the warrant prior to arrival to the building. Even without
Wilhelm’s specialized knowledge, a reasonable officer would
have discovered the fatal defect in the warrant upon
entering the building and discovering two sets of staircases
facing opposite directions. In light of this, we cannot
conclude that the search was a valid execution of that
warrant as neither the warrant nor the affidavit in support
of the warrant targeted the Joneses’ apartment. See Jacobs,
215 F.3d at 769 (finding that, where the search of the
plaintiffs’ apartment occurred after it appeared from the
allegations in the complaint that a reasonable officer would
have discovered a fatal defect in the warrant, the search
was not a valid execution of that warrant). In order to
target the Joneses’ apartment, Wilhelm circumvented the
proper procedural safeguards and acted as his own magis-
trate to issue his own personal amended warrant by
applying knowledge he had gained before that night to
resolve the warrant’s ambiguity.
  For all the reasons discussed, we find that the undisputed
facts of this case establish that Wilhelm’s actions violated
the Joneses’ clearly established rights because he (1)
executed a validly issued warrant he knew to be facially
ambiguous prior to the execution of the warrant; and (2)
circumvented the magistrate judge and resolved the war-
rant’s ambiguity based on information he should have
disclosed to the magistrate who issued the warrant. Since
Wilhelm’s undisputed actions represent a viola-
tion of clearly-established, constitutional rights, we find
that Wilhelm enjoys no qualified immunity as to the
Joneses’ warrant claim.
Nos. 04-1261 & 04-1605                                     17

  2. Summary judgment on the warrant claim in favor
     of the Joneses is appropriate.
  Having determined that Wilhelm is not entitled to
qualified immunity, we now turn to the district court’s
denial of the Joneses’ motion for summary judgment on
their warrant claim. To state a claim for relief under 42
U.S.C. § 1983, the Joneses must allege: (1) they were
deprived of a right secured by the Constitution or laws
of the United States, and (2) the deprivation was visited
upon them by a person or persons acting under color of
state law. Kramer v. Village of North Fond du Lac, 384 F.3d
856, 861 (7th Cir. 2004) (citations omitted). As the second
element is undisputed, the question is whether the Joneses
have produced evidence such that a reasonable jury could
find that Wilhelm deprived them of a right secured by the
Constitution or federal law. In analyzing whether a ques-
tion of fact exists, we construe the evidence in the light
most favorable to the party opposing the motion. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The mere
existence of some factual dispute does not defeat a sum-
mary judgment motion, however; there must be a genuine
issue of material fact for the case to survive. Id. at 247-48.
  Reviewing the facts in the light most favorable to Wil-
helm, we find that there are no genuine issues as to any
material fact and that the Joneses are entitled to a judg-
ment as a matter of law. Notwithstanding the disputed
issues of fact concerning both Wilhelm’s knowledge of 220
W. Burnett Avenue and his actions during the execution of
the flawed search warrant, Wilhelm’s actions prior to the
execution of the warrant are undisputed and provide a
sufficient basis to grant summary judgment.
  Prior to the execution of the warrant, the key facts in this
case are: Wilhelm undertook surveillance and gained
knowledge of 220 W. Burnett Avenue independent from
the issuance of the search warrant; and, upon receipt of the
18                                   Nos. 04-1261 & 04-1605

search warrant to execute, Wilhelm recognized the address
and immediately realized the warrant to be ambiguous on
its face. Both of these facts are undisputed in the record.
  Wilhelm’s decision then to proceed with the execution of
a search warrant he knew to be ambiguous violated the
Joneses’ Fourth Amendment rights. Garrison, 480 U.S. at
89 (holding that officers cannot legally execute a warrant
they know to be ambiguous). Furthermore, where Wilhelm
made his own probable cause determination to resolve
the warrant’s ambiguity, Wilhelm also deprived the Joneses
of a right secured by the Constitution. Chambers, 399 U.S.
at 51. It follows, therefore, that the factual disputes, argued
at length by both sides, regarding the full extent of Wil-
helm’s knowledge as a result of his surveillance and
regarding the reasonableness of Wilhelm’s actions while
executing the search warrant are not material.
  The pleadings, depositions, answers to interrogatories,
and admissions on file, together with any affidavits, show
that there is no genuine issue of fact regarding Wilhelm’s
deprivation of the Joneses’ rights as secured by the Consti-
tution or Wilhelm’s status as a person acting under color of
state law. We, therefore, grant summary judgment on the
warrant claim in favor of the Joneses.


C. The Knock-and-Announce Claim
  Wilhelm appeals the district court’s denial of his motion
for summary judgment on the Joneses’ knock-and-announce
claim, claiming that he is entitled to summary judgment on
qualified immunity grounds. In general, 28 U.S.C. § 1291
does not confer jurisdiction to review a district court’s
denial of summary judgment. Pac. Union Conf. of Seventh-
Day Adventists v. Marshall, 434 U.S. 1305, 1306 (1977).
However, an exception to this rule comes into play when a
movant requests summary judgment based on qualified
Nos. 04-1261 & 04-1605                                      19

immunity. As qualified immunity protects officers not only
against liability but also against the requirement to answer
claims in court, such immunity “is effectively lost if a case
is erroneously permitted to go to trial.” Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). A motion for summary judgment,
therefore, represents a defendant’s final opportunity to
secure the full benefit of qualified immunity, and we may,
therefore, review its denial. Id. at 530. In reviewing the
district court’s decision to deny Wilhelm summary judg-
ment, however, we may not disturb that court’s determina-
tion that particular factual issues are in dispute. See
Johnson v. Jones, 515 U.S. 304, 313 (1995).
   It is undisputed in this case that in 2002 “the Fourth
Amendment’s proscription of unreasonable searches and
seizures incorporated the requirement that law enforcement
officers entering a dwelling with a search warrant must
knock on the door and announce their identity and inten-
tion before attempting forcible entry.” United States v.
Espinoza, 256 F.3d 718, 723 (7th Cir. 2001). After knocking
and announcing, officers may enter if the residents refuse
to admit them, 18 U.S.C. § 3109 (2005) (“[An] officer may
break open any outer or inner door or window of a house .
. . to execute a search warrant, if, after notice of his author-
ity and purpose, he is refused admittance . . . .”), and
officers may also infer refusal from circumstantial evidence.
United States v. Jones, 208 F.3d 603, 610 (7th Cir. 2000).
This knock-and-announce requirement serves to protect
residents’ ability to comply with the law by peaceably
permitting officers to enter their dwelling, to avoid the
destruction of property that can accompany forcible entry,
and to prepare themselves for entry by law enforcement
officers by, for example, pulling on clothes or getting out of
bed. Espinoza, 256 F.3d at 723.
  Certain exigent circumstances, however, can excuse
an entry that would otherwise violate § 3109. United States
v. Soria, 965 F.2d 436, 439 (7th Cir. 1992). Examples of
20                                  Nos. 04-1261 & 04-1605

exigent circumstances include a particularized risk to the
officers executing a warrant, United States v. Singer, 943
F.2d 758, 762 (7th Cir. 1991), and the risk that occupants
will destroy evidence while officers wait outside, United
States v. Barrientos, 758 F.2d 1152, 1159 (7th Cir. 1985).
However, the mere fact that officers are conducting a drug
raid does not, without more, imply the presence of either of
these exigent circumstances. Richards v. Wisconsin, 520
U.S. 385, 394 (1997) (acknowledging that the execution of
a search warrant on a suspected drug operation is inher-
ently dangerous, but striking down a per se rule excluding
drug raids from the knock-and-announce requirement).
Still, even absent a clear exigent circumstance, silence in
response to a knock and announcement at a drug raid can
support an inference of an emergent exigent circumstance,
such as an effort to destroy evidence. See United States v.
Markling, 7 F.3d 1309, 1318 (7th Cir. 1993) (approving a
seven-second pause between announcement and entry when
the resident failed to respond and the police had received a
specific tip that he was likely to flush his cocaine if he
heard officers approaching).
  Thus, consistent with the Fourth Amendment’s proscrip-
tions, officers executing a search warrant on a suspected
drug operation have a choice: the officers may enter a
dwelling as soon as they reasonably infer either that the
occupants intend to refuse them entry or that the occupants
will destroy evidence if they wait longer. See United States
v. Banks, 540 U.S. 31, 39-40 (2003). The time officers must
wait after announcing before they may infer either a refusal
to allow entry or a hazard to evidence must be determined
by what is reasonable given the facts of the particular case.
Jones, 208 F.3d at 610.
  In their knock-and-announce claim, the Joneses allege
that Wilhelm and his team violated their Fourth Amend-
ment rights by failing to wait a reasonable time after
knocking and announcing their identity before kicking in
Nos. 04-1261 & 04-1605                                      21

their door. The evidence in this case, taken in the light most
favorable to the Joneses, establishes that Wilhelm and his
team waited only two seconds after they knocked before
they kicked in the Joneses’ door, with the announcement of
their identity and intention coming somewhere within those
two seconds. There is no evidence in this case establishing
that Wilhelm reasonably inferred that the occupants were
likely to destroy the suspected methamphetamine lab
within two seconds. Cf. United States v. Spinelli, 848 F.2d
26, 30 (2d Cir. 1988) (excusing officers’ rapid entry based on
their justifiable fear that the target of the warrant would
attempt to ignite a methamphetamine lab). Likewise, a two-
second period of silence in response to a nighttime knock
cannot on its own support a reasonable inference that the
residents intended to refuse to admit the officers. Wilhelm
raises three main arguments in support of his qualified
immunity claim, which we shall address in turn. First, he
asserts that the alleged knock-and-announce violation
should be excused on the basis of exigent circumstances
inherent in executing a search warrant at night on a
suspected drug operation. The exigent circumstance
exception is not a mere rule of pleading but a considered
policy serving to maximize officers’ safety and effectiveness
in exceptional situations. It is for the officers on the scene,
not their lawyers after the fact, to find exigent circum-
stances. Here, nothing in the warrant suggested or pre-
dicted a particular risk of violence or destruction of evi-
dence. Indeed, Detective Finch stated in deposition testi-
mony that the law enforcement agencies of Burnett County
would normally issue no-knock warrants “if there’s a
possibility of weapons in the residence or someone has an
extremely violent past or if there is a good possibility of
destruction of evidence in a short period of time” (Finch
Dep. 14), and the magistrate in this case issued no such
warrant. Further, just as the warrant gave the officers no
reason to anticipate exigent circumstances, the brief period
they waited before kicking in the door does not support a
22                                     Nos. 04-1261 & 04-1605

reasonable inference that exigent circumstances were
developing contemporaneously. Finally, the deposition
testimony of the officers involved belies Wilhelm’s argu-
ment, as the officers testified that they followed standard
operating procedure during the raid, with no indication of
any exigent circumstance. Viewing the facts in the light
favoring the Joneses, we find no evidence that Wilhelm
reasonably perceived any exigent circumstances either
before or during the raid.
  In his second argument, Wilhelm urges us to follow
Molina v. Cooper, 325 F.3d 963 (7th Cir. 2003), where
we held that an officer’s forcible entry during a warrant
search complied with the knock-and-announce rule. Molina,
325 F.3d at 972. Wilhelm’s reliance on Molina, however, is
misplaced. In Molina, the target of the warrant had a
criminal history, id. at 966 n.1, unlike the targets of Wil-
helm’s search, and the warrant for Molina’s house alleged
that Molina kept a stash of weapons and maintained an
association with a gang. Id. Based on these facts, the police
in Molina anticipated a “high risk” raid and took special
precautions when executing the warrant. Id. at 966. When
they reached Molina’s home, they knocked and called out
three successive times, waited an additional five seconds,
and then burst in. Id. at 967. Viewed in the light most
favorable to the Joneses, the facts of this case indicate that
Wilhelm waited less time after announcing his presence
before forcibly entering than did the officers in Molina,
despite the fact that he had less reason to anticipate
trouble. Therefore, Molina does not control here.4


4
  In the alternative, Wilhelm argues that the very existence of a
case such as Molina, which refuses to set a bright-line test for
knock-and-announce timing, refutes the proposition that the right
he allegedly violated was clearly established. This argument
misstates the law. A rule need not be set out in bright-line terms
                                                     (continued...)
Nos. 04-1261 & 04-1605                                        23

   Third, Wilhelm argues that his premature entry was of no
consequence because if Mr. Jones had not let the officers in,
then they would have been able to infer a refusal to admit
them, and everything would have proceeded the same way.
If, in the alternative, Jones had indeed opened the door for
the officers, then they still would have handcuffed him and
his wife and pressed them to the floor until they could
determine that the apartment was secure. So, according to
Wilhelm, his alleged violation of the knock-and-announce
rule did not cause the Joneses any incremental trauma.
  Wilhelm’s argument is wholly unrelated to whether he is
entitled to qualified immunity. Rather, if anything, his
argument goes to damages. A forcible entry that violates
the knock-and-announce rule infringes upon a clearly-
established, constitutional right regardless of any destruc-
tion of property or infliction of emotional distress. The
officers effecting such an entry cannot recapture their lost
immunity by attacking the magnitude of the injury. Such
arguments are properly reserved for trial, not summary
judgment.
  We find, therefore, that the district court properly denied
Wilhelm’s motion for summary judgment on the knock-and-
announce claim as the alleged facts taken in a light most
favorable to the Joneses indicate a violation of a clearly
established right.


                     III. CONCLUSION



4
   (...continued)
to provide reasonable officers enough information to know what
is and is not legal in a given situation. As long as
the unlawfulness is “apparent” in light of pre-existing law, the
plaintiffs will have met their burden with regard to clear estab-
lishment. Hope v. Pelzer, 536 U.S. 730, 739 (2002).
24                                   Nos. 04-1261 & 04-1605

  For all the foregoing reasons, we REVERSE the district
court’s grant of summary judgment in favor of Wilhelm on
the Joneses’ warrant claim, GRANT summary judgment in
favor of the Joneses on their warrant claim, AFFIRM the
district court’s denial of summary judgment on the Joneses’
knock-and-announce claim, and REMAND for further pro-
ceedings.




  FLAUM, Chief Judge, concurring in part and dissenting in
part. I agree with the majority’s decision to affirm the
district court’s denial of summary judgment on the knock-
and-announce claim. Considering the evidence in the light
most favorable to plaintiffs, the officers may not have
waited a requisite amount of time before breaking down the
Joneses’ door. Under Officer Wilhelm’s version of events,
however, the time between the knock and announcement
and the officers’ entry would have been sufficient to infer
that plaintiffs had refused to allow the police to enter.
Because there remains a substantial factual dispute about
the critical issue of timing, I agree that plaintiffs should be
permitted to go to trial on this claim.
  I respectfully disagree, however, with the majority’s
decision to grant summary judgment to plaintiffs on the
warrant claim. While the police work in this case was not
exemplary, I do not believe that Officer Wilhelm was on
notice that his execution of the warrant was unlawful such
that he should be stripped of qualified immunity. See
Saucier v. Katz, 533 U.S. 194, 202 (2001) (“The relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable
Nos. 04-1261 & 04-1605                                    25

officer that his conduct was unlawful in the situation he
confronted.”) (emphasis added).
  Although the warrant would not have told a reasonable
officer unfamiliar with the building which apartment it
referred to, Officer Wilhelm was aware of the layout of the
building and the allegations of illegal drug activity on its
second floor. From Wilhelm’s perspective, the warrant
was not ambiguous. I cannot join, therefore, the major-
ity’s conclusion that Wilhelm knew prior to entering the
Joneses’ apartment that the warrant was invalid because it
was open to more than one interpretation. Even though
Wilhelm turned out to be mistaken in his belief that the
warrant targeted plaintiffs’ apartment, in my judgment,
this mistake was not so unreasonable as to strip him of
qualified immunity. See Saucier, 533 U.S. at 202 (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986) (“qualified
immunity protects ‘all but the plainly incompetent or those
who knowingly violate the law’ ”)); Anderson v. Creighton,
483 U.S. 635, 641 (1987) (officer should not be stripped of
qualified immunity where he conducted a search based on
the erroneous belief that a bank robbery suspect was in
plaintiff’s home); Maryland v. Garrison, 480 U.S. 79, 87
(1987) (“The [Supreme] Court has recognized the need to
allow some latitude for honest mistakes that are made
by officers in the dangerous and difficult process of mak-
ing arrests and executing search warrants.”).
  Wilhelm did not choose to search plaintiffs’ apartment at
random or “maintain willful ignorance” of which apartment
contained a methamphetamine lab. Rather, his belief that
the warrant referred to the Joneses’ apartment was based
on his own observations of traffic in and out of the building
followed by activity in plaintiffs’ apartment. Wilhelm
believed in good faith that the warrant referred to the
Joneses’ apartment. Only after he entered that apartment
did Wilhelm understand that the warrant was defective.
26                                   Nos. 04-1261 & 04-1605

  It is undisputed that, once an officer discovers a defect in
the description of the place to be searched, he is obligated
to cease the search if he cannot determine which precise
location is the proper subject of the warrant. See Jacobs v.
City of Chicago, 215 F.3d 758, 769 (7th Cir. 2000). Wilhelm
did just that. The facts of this case stand in marked con-
trast to those in Jacobs. In that case, the police officers had
obtained a warrant to search a single-family residence. Id.
at 763-64. When they arrived, the officers discovered that
the address listed on the warrant was a multi-unit apart-
ment building, which clearly should have alerted them that
their search warrant was defective. Id. at 769. Despite there
being “no indication that the officers were certain that
plaintiffs’ apartment was the proper subject of the search,”
the officers proceeded to search each of the apartments,
entering the plaintiff’s apartment only after they did not
find what they were looking for in the first unit they chose
to search. Id. at 771. This Court found that the execution of
the search warrant was unreasonable, and that Supreme
Court and Seventh Circuit precedent clearly established
that a random search of apartments in a multi-unit build-
ing violates the Fourth Amendment. Id. The Court there-
fore held that the officers were not entitled to qualified
immunity. Id. Unlike the officers in Jacobs, Officer Wilhelm
did not conduct a “fishing expedition” or randomly search
all the apartments in the building until he found the
methamphetamine lab. Rather, he acted on his belief, albeit
erroneous, that the warrant specifically targeted plaintiffs’
apartment. As soon as he realized he was in the wrong
apartment, he did what he was required to
do—immediately call off the search and exit the apartment.
  Under these circumstances, it is my view that it would
not have been clear to a reasonable officer in Wilhelm’s
position that his entry into the Joneses’ apartment violated
plaintiffs’ constitutional rights. I would hold that defendant
was entitled to qualified immunity and affirm the district
Nos. 04-1261 & 04-1605                                27

court’s entry of summary judgment in favor of defendant
with respect to the warrant claim.

A true Copy:
      Teste:

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




                 USCA-02-C-0072—10-3-05
