Keith J. Mitan v. George P. Clark

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 5, 2023 *
Decided April 11, 2023
Before
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-1883
KEITH J. MITAN,
Plaintiff-Appellant,
v.
GEORGE P. CLARK,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:11-cv-01260-SEB-TAB
Sarah Evans Barker,
Judge.
O R D E R
Keith Mitan appeals the entry of summary judgment in favor of a postal
inspector he sued for seizing his personal property and allegedly violating his Fourth
Amendment rights. The district court determined that the postal inspector was entitled
to qualified immunity because he reasonably believed that he was lawfully obtaining
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-1883 Page 2
personal items from a home with the real property owner’s consent. We conclude that
the seizure was not unreasonable and therefore affirm.
We recount the undisputed facts in the light most favorable to Mitan and draw
reasonable inferences in his favor. See Pierner-Lytge v. Hobbs, 60 F.4th 1039, 1043 (7th Cir.
2023). Mitan stowed papers and other personal property at an unoccupied house in
Bloomington, Indiana. Some of his family members owned the house through a
corporate entity (in which he had no interest) and allowed him to leave his items there.
Mitan’s father and brother ran into legal problems and defaulted on the loan
secured by the Bloomington house. The lender—the Richard E. Deckard Family Limited
Partnership #206—filed a foreclosure action. In 2009, an Indiana court entered a
judgment of foreclosure and awarded Deckard title to the house; the order specifically
assigned to Deckard ownership of the real estate and “personal property therein.”
Meanwhile, federal prosecutors in Pennsylvania had charged Mitan’s brother and
father with a fraud conspiracy, and a grand jury investigation continued.
Deckard prepared the house for sale and discovered that it contained boxes,
loose papers, and other personal property belonging to Keith Mitan and his family.
Because Deckard had been subpoenaed by the grand jury earlier in the federal
investigation, a representative contacted the prosecutors in Pennsylvania and offered
them the opportunity to pick up the property before it was disposed of. The supervising
U.S. Attorney directed defendant George Clark, a postal inspector, to retrieve the
property as potential evidence. Clark discussed with the prosecutor whether he needed
a search warrant. The prosecutor advised Clark that a warrant was unnecessary because
the homeowner consented to the seizure of the property.
When Clark arrived at the Bloomington house, a Deckard representative met him
and instructed Deckard employees to load bags, crates, and boxes of documents and
other items into Clark’s rental truck. Clark then issued the employees a carbon copy of a
form entitled “search warrant inventory” with an approximate inventory of the items,
and an employee initialed it in addition to giving Clark her oral consent to remove the
items. Clark struck through the words “search warrant” on the form to clarify that there
was no warrant. The government took possession of the items back in Pennsylvania.
One year later, an Indiana appellate court partially reversed the order of
foreclosure. It upheld the foreclosure on the house but determined that ownership of
the personal property in the house should not have been transferred. The federal

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No. 22-1883 Page 3
prosecutors eventually released Keith Mitan’s items back to him—six years after the
seizure in 2015—when the prosecution of his brother and father had concluded.
By then, Mitan had brought this suit in the Southern District of Indiana. He
sought the return of his property and monetary damages for the unlawful seizure.
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
The court granted Clark’s motion to transfer the case to the Eastern District of
Pennsylvania, where it was dismissed. Mitan v. U.S. Postal Inspection Service, No. 12-
6408, 2013 WL 6153276 (E.D. Pa. Nov. 22, 2013). After the Third Circuit partially
reversed and remanded to permit Mitan to amend his complaint, 656 F. App’x 610, 616
(3rd. Cir. 2016), the case was transferred back to Indiana.
Both sides then moved for summary judgment; the district court denied Mitan’s
motion and granted Clark’s. The court determined that Clark was entitled to qualified
immunity because he reasonably believed, after consulting with the prosecutor
investigating Mitan’s family, that the real property owners could, and did, consent to
the seizure. Mitan unsuccessfully moved to alter or amend the judgment.
On appeal, Mitan argues that summary judgment was inappropriate because
Clark unreasonably seized Mitan’s property—which the state appellate court
determined was his all along—without valid consent. Clark maintains that he
reasonably believed the rightful owner of the property voluntarily turned it over to
him. We review the summary-judgment decision de novo. Pierner-Lytge, 60 F.4th
at 1043. (Mitan abandoned his separate appeal of the denial of his reconsideration
motion and does not discuss it here.)
A government official enjoys qualified immunity from suits for damages unless
his actions (1) violate a constitutional right (2) that was clearly established at the time.
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). In many cases, the first question overlaps
with the merits. The Fourth Amendment protects against unreasonable seizures, and a
warrantless seizure is presumptively unreasonable unless an exception, such as
obtaining consent, applies. Tucker v. Williams, 682 F.3d 654, 659 (7th Cir. 2012).
Mitan contends that Deckard could not provide valid consent to the seizure of
his personal property because it was not the owner, as the subsequent state court ruling
established. But we assess reasonableness based on what an officer knows at the time he
obtains consent, not facts that come to light later. See United States v. Alexander, 573 F.3d
465, 474 (7th Cir. 2009). Indeed, “seizures based on mistakes of fact can be reasonable,”

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such as when officers obtain consent from someone who “reasonably appears to be” the
owner of a home they search. Heien v. North Carolina, 574 U.S. 54, 61 (2014) (citing Illinois
v. Rodriguez, 497 U.S. 177, 183–86 (1990)). Because, under the Fourth Amendment, the
consent of a person with apparent authority over property suffices, what matters here is
whether Clark reasonably believed that Deckard could give valid consent. Georgia v.
Randolph, 547 U.S. 103, 109 (2006).
Here, Clark reasonably believed that Deckard’s representative had authority to
consent to the seizure. He knew that the partnership owned the house and, according to
the foreclosure judgment, its contents. Further, Deckard voluntarily contacted the
federal prosecutor to offer the documents, and a Deckard employee orally agreed that
Clark could take the property and initialed his inventory receipt. All these interactions
reasonably indicated that Deckard could, and did, consent to the seizure. And because
Clark had the consent of someone with apparent authority, he did not violate the
Fourth Amendment when he seized the documents. See Rodriguez, 497 U.S. at 188. For
similar reasons, Clark would be entitled to qualified immunity. See Wonsey v. City of
Chicago, 940 F.3d 394, 400 (7th Cir. 2019).
Still, Mitan protests that, even if the law favors Clark, all the evidence of
Deckard’s consent to the seizure is inadmissible hearsay. But the district court did not
abuse its discretion by admitting statements from Clark’s deposition testimony and
affidavit on this point. See Johnson v. Myers, 53 F.4th 1063, 1067 (7th Cir. 2022). Consent
is a “verbal act,” and therefore Clark’s testimony is admissible even though it involves
out-of-court statements. See United States v. Moreno, 233 F.3d 937, 940 (7th Cir. 2000).
Mitan also theorizes that Deckard did not voluntarily consent and instead was
coerced by the grand jury subpoena, which had expired. But Mitan offered no evidence
putting the facts about consent in dispute. See Wonsey, 940 F.3d at 399–400. The record
establishes that the partnership voluntarily gave the property to Clark by contacting the
prosecutor and offering it up, then loading it up for Clark when he arrived.
Mitan further protests that the prosecutors in Pennsylvania wrongfully retained
his property after the Indiana appellate court made clear that the government had
obtained it through the consent of someone incapable of providing it. But “continued
retention of unlawfully seized property is not a separate Fourth Amendment wrong.”
Gonzalez v. Village of West Milwaukee, 671 F.3d 649, 660 (7th Cir. 2012). Regardless, there
is no evidence in the record that Clark is personally responsible for the government’s
continued possession of the documents after he dropped them off—the evidence

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instead suggests the U.S. Attorney’s office was calling the shots. See Fosnight v. Jones,
41 F.4th 916, 923 (7th Cir. 2022).
AFFIRMED

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