Kelly Rainey v. Jesse Lewis

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 4, 2025*
Decided March 20, 2025
Before
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
NANCY L. MALDONADO, Circuit Judge
No. 24-2068
KELLY RAINEY,
Plaintiff-Appellant,
v.
JESSE LEWIS, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 21-CV-1185-SCD
Stephen C. Dries,
Magistrate Judge.
O R D E R
Kelly Rainey alleges that his Fourth Amendment rights were violated by two
Racine County police officers who arrested him without probable cause and by an
investigator who misrepresented facts to support a no-knock search warrant for his
* By prior order (App. Dkt. 27), we vacated oral argument in this appeal. 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-2068 Page 2
home. See 42 U.S.C. § 1983. A magistrate judge, proceeding with the parties’ consent,
entered summary judgment for the defendants, concluding that probable cause
supported the arrest and search warrant. We affirm.
I.
The following facts are undisputed, except where noted, and are presented in the
light most favorable to Rainey, the party opposing summary judgment. See Kailin v. Vill.
of Gurnee, 77 F.4th 476, 478 (7th Cir. 2023). In August 2019, Rainey and his ex-girlfriend,
Melody Rose, met in his car to discuss his separate lawsuit against a Kenosha Police
Department deputy. Rose had agreed to help Rainey complete paperwork for the suit.
But after Rose dropped off the paperwork and left Rainey’s car, two Racine County
Police officers pulled Rainey over and arrested him. He later was charged with
conspiracy to commit homicide, possession of cocaine with intent to deliver, and
possession of THC. On the same day as Rainey’s arrest, a state trial judge issued a no-
knock search warrant for Rainey’s residence.
The search-warrant affidavit, authored by Jesse Lewis, an investigator for the
Racine County Metro Drug Enforcement Unit (“Drug Unit”), detailed the evidence
against Rainey. Lewis explained that he had arranged several controlled buys in which
a confidential informant (Rose) bought cocaine from Rainey. Before each controlled
buy, Drug Unit agents had searched Rose to ensure she did not already possess illicit
drugs, and Lewis provided her funds to complete the controlled buy and an
audio/video recorder to record the buy. Drug Unit agents dropped her off at Rainey’s
residence, watched her enter and leave his house, and then saw her return to their car.
Rose then gave Lewis a substance that later tested positive for cocaine. The affidavit,
citing Lewis’s experience that drugs are often accompanied by guns, also referred to the
possibility that firearms might be at Rainey’s residence; on this basis, a state trial judge
issued a no-knock search warrant. Rainey disputes that he had a firearm. After Lewis
received the warrant, he ordered two officers to arrest Rainey because Rainey was
selling cocaine.
After the police arrested Rainey and he spent 19 months in jail, the State dropped
all charges against him. He then filed this § 1983 suit under the Fourth and Fourteenth
Amendments, arguing that the officers arrested him without probable cause and that
Lewis misled the state judge who issued the search warrant based on false information
from Rose.

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No. 24-2068 Page 3
The magistrate judge entered summary judgment for the defendants. With
regard to Rainey’s claim against the arresting officers, the judge concluded that they
had probable cause to arrest based on (1) their information that Rainey had allegedly
sold crack cocaine on prior occasions and (2) Rainey’s concession that they were not
involved in his investigation and could not have known that the stop was based on
incorrect information. As for Rainey’s claims against Lewis, the judge determined that
Lewis had probable cause to order Rainey’s arrest and request a no-knock search
warrant for Rainey’s house. The judge added that Rainey failed to provide evidence
that would allow a reasonable jury to find that Lewis—knowingly, intentionally, or
with reckless disregard for the truth—made false statements that were necessary to the
probable-cause determination. And to the extent Rainey challenged Rose’s credibility as
an informant, the judge pointed out that such a challenge would be more properly
directed to a jury in a criminal trial.
II.
A. Probable Cause for the Search of Rainey’s Residence
Rainey first challenges the finding that probable cause supported Lewis’s search
of his residence. But “a police officer has probable cause to conduct a search when ‘the
facts available to [him] would ‘warrant a [person] of reasonable caution in the belief’
that contraband or evidence of a crime is present.’” Florida. v. Harris, 568 U.S. 237, 243
(2013) (citations omitted). Because Rainey cannot dispute that Rose—having been
searched by police ahead of time—obtained drugs from his residence, the magistrate
judge correctly concluded that no reasonable jury could find that probable cause did not
exist to search Rainey’s residence for cocaine.
Rainey relatedly asserts that the search-warrant affidavit was tainted because
Lewis omitted information about the lack of credibility of the confidential informant,
Rose. Rainey compares his circumstances to United States v. Glover, in which we
reversed the denial of the defendant’s motion to suppress an invalid search warrant
because the affiant completely omitted damaging information about an informant’s
credibility. 755 F.3d 811, 816 (7th Cir. 2014).
True, a search warrant is invalid if the required probable-cause finding is
premised on an officer’s “false statement [made] knowingly and intentionally, or with
reckless disregard for the truth.” Franks v. Delaware, 438 U.S. 154, 155 (1978). But unlike
Glover, in which the affiant relied exclusively on the informant’s word in requesting the
warrant, 755 F.3d at 816, Lewis testified in his affidavit that he received cocaine from

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Rainey’s residence. Without evidence from Rainey to the contrary, this information
would be sufficient to support probable cause to search—even apart from any
information Rose may have gathered.
Rainey also asserts that Lewis materially lied in his affidavit by suggesting that
firearms might be found at his residence. But the magistrate judge was correct to
dismiss this argument. Rainey proffered no evidence to support a challenge under
Franks regarding the presence of firearms in his residence. Nor does he suggest that the
evidence in the affidavit did not support reasonable suspicion that the search would be
dangerous—the standard for the issuance of no-knock search warrants. See Richards v.
Wisconsin, 520 U.S. 385, 394 (1997). Without such evidence, the magistrate judge
correctly concluded that a reasonable jury could not conclude that Lewis made
intentional or reckless misrepresentations of fact that were necessary to the issuance of
the no-knock search warrant.
B. Probable Cause for the Defendants’ Arrest of Rainey
Rainey next asserts that his denial that he ever sold cocaine to Rose gives rise to a
fact question over whether Lewis had probable cause to order his arrest. But probable
cause to arrest exists if the totality of the circumstances show that a reasonable officer
would believe “the arrestee had committed, was committing or, and was about to
commit a crime.” See Abbott v. Sangamon Cnty., 705 F.3d 706, 714 (7th Cir. 2013) (citations
omitted). Here, Rainey cannot dispute that on four separate occasions, Rose turned over
cocaine to Lewis after she left Rainey’s residence. These episodes—where Rose was
monitored and recorded on video and audio, as well as searched by Drug Unit agents to
ensure she did not already possess illicit drugs—gave Lewis the reasonable belief that
Rainey possessed cocaine and was selling it out of his house. This undisputed account
of a controlled buy establishes probable cause as a matter of law. See, e.g., United States
v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006) (“the confidential informant entered the
building without contraband; exiting moments later, he produced cocaine, indicating
the probable—if not likely—presence of illegal drug activity in the apartment.”).
Rainey’s remaining arguments lack merit. First, he argues that Lewis did not
witness the drug sales. But the absence of eyewitness testimony does not invalidate
probable cause. Probable cause does not require absolute certainty—only a “fair
probability”—of a crime. See United States v. Bacon, 991 F.3d 835, 839–40 (7th Cir. 2021);
Sidwell, 440 F.3d at 869. Here the circumstances of the controlled buy reliably establish
probable cause. See Sidwell, 440 F.3d at 869. Rainey also asserts that these controlled
buys occurred only because of an alleged conspiracy between Rose and Lewis to frame

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Rainey. But this argument is not supported by any evidence, and mere assertions are
not sufficient to defeat summary judgment. See Johnson v. Myers, 53 F.4th 1063, 1068 (7th
Cir. 2022).
AFFIRMED

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