Corey Fallen v. Thomas McEnroe

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-2312

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COREY FALLEN

v.

THOMAS MCENROE, in his individual capacity; JOSEPH HADLEY; CITY OF

NEWARK; CHIEF SHEILLAH COLEY; DIRECTOR SAMUEL DEMAIO;

SUPERINTENDENT JOSEPH FUENTES; NEW JERSEY STATE POLICE

JOSEPH HADLEY,

Appellant

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2:15-cv-02286)

District Judge: Honorable Evelyn Padin

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Submitted Under Third Circuit L.A.R. 34.1(a)

October 28, 2024

Before: HARDIMAN, PHIPPS, and FREEMAN, Circuit Judges.

(Filed: January 6, 2025)

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OPINION*

____________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

HARDIMAN, Circuit Judge.

Detective Joseph Hadley appeals the District Court’s order denying his motion for

summary judgment on civil rights claims arising from Corey Fallen’s arrest, detention,

and prosecution. Hadley claims we have jurisdiction because his appeal raises only

questions of law about qualified immunity. Fallen argues that disputed issues of material

fact exist. Because we agree with Fallen, we will dismiss the appeal for lack of

jurisdiction.

I

On January 25, 2012, Denise Ramsey’s body was found in an empty lot in East

Orange, New Jersey. Thomas McEnroe, a Detective with the New Jersey State Police, led

the investigation into her death. Hadley, a Detective with the Essex County Prosecutor’s

Office Homicide Task Force, participated in the investigation to a lesser degree.

Ramsey was a dancer who was last seen with two African American men at her

workplace, the Doll House, in early December 2011. On January 26, 2012, McEnroe

interviewed the Doll House’s general manager, Gary Capone, Jr. Capone described one

of the men as about five feet, eight inches tall and said that he had dark skin and gloated

about recently beating a murder charge. Capone described the other man as about six feet

tall.

The next week, McEnroe interviewed Erica Hamilton, another dancer at the Doll

House. According to her, the men said they were from Atlanta, Georgia, and they

identified themselves as “Joe” and “Big Red.” “Joe” was dark-skinned and about five

2

feet, ten inches tall, and “Big Red” was light-skinned and about six feet tall. Hamilton

said that “Big Red” bragged about recently beating a murder charge. McEnroe also spoke

with Jasmine Jones, another dancer, and she gave McEnroe “Joe’s” cellphone number.

After obtaining a warrant for records associated with that cellphone, McEnroe suspected

that John Jones was “Joe.”

That same day, McEnroe obtained photographs of two individuals recently

acquitted of murder in Atlanta. One of these photographs was of Fallen, a light-skinned

African American male who is only five feet, five inches tall.

In June—nearly six months after the homicide—McEnroe interviewed Capone

again. A detective showed Capone two photo arrays with six individuals each. From the

first photo array, Capone identified Fallen as the man who gloated about beating a

murder charge. From the second photo array, Capone identified John Jones. As to Fallen,

Capone said, “I do need to mention at the time his hair was not like that.” Dist. Ct. Dkt.

ECF No. 169-19 at 25.

In August, now eight months after the homicide, Hadley presented two photo

arrays with six individuals each to Jasmine Jones for identification. She identified Fallen,

but when Hadley asked whether he was at the Doll House the night of the murder, she

twice said, “I don’t know.” App. 217–18.

Though Fallen was at least six inches shorter than “Big Red,” McEnroe and

Hadley pursued Fallen as a suspect. They traveled to Georgia in September to collect

DNA samples from Fallen and John Jones. In October, the test results identified John

3

Jones as a contributor to two DNA profiles obtained from Ramsey but excluded Fallen as

a possible contributor.

After obtaining the test results, McEnroe applied for arrest warrants for Fallen and

John Jones. In his affidavit, McEnroe said that two witnesses had identified John Jones

and Fallen, but he omitted that these identifications had occurred over six months after

the murder and that Jasmine Jones twice expressed uncertainty. McEnroe also mentioned

the DNA test results for John Jones—but not Fallen—and the judge issued the warrants.

McEnroe and Hadley traveled from New Jersey to Georgia to execute the warrants.

On October 24, McEnroe and Hadley went to John Jones’s residence, but he was

not there. Brian Love was inside, and he said that he had not seen John Jones for two

weeks. The officers arrested Love on marijuana charges, and the parties dispute whether

Love implicated himself in Ramsey’s murder at that time. This factual dispute arises from

an interrogatory in which Fallen asked how Hadley “became aware that Brian Love was

the second individual who was seen with Ms. Ramsey on the night she disappeared and

when was the first time [Hadley] became aware of his involvement in her murder.” Dist.

Ct. Dkt. ECF No. 169-35 at 21. Hadley responded that he “became aware of this

information when Mr. Love gave a statement in Georgia on October 24, 2012 indicating

his involvement in the murder of Ms. Ramsey.” Id. That interrogatory answer conflicted

with McEnroe’s report, which states that Love confessed in 2014.

The day after Love was arrested, Fallen turned himself in. Fallen remained in

custody for nearly six months until Hadley and McEnroe finally investigated his alibi.

4

II1

Hadley claims that we have jurisdiction over his interlocutory appeal from the

denial of qualified immunity because “it turns on an issue of law.” Mitchell v. Forsyth,

472 U.S. 511, 530 (1985). He argues that his conduct did “not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Andrews v. Scuilli, 853 F.3d 690, 697 (3d Cir. 2017) (cleaned up). But as the District

Court held, Fallen’s right to be free from arrest, detention, and prosecution without

probable cause was clearly established decades before his arrest.2 Because the officers

obtained an arrest warrant, Hadley would ordinarily be entitled to qualified immunity

unless “the affiant knowingly and deliberately, or with a reckless disregard for the truth,

made false statements or omissions that create[d] a falsehood in applying for a warrant”

and “such statements or omissions [were] material, or necessary, to the finding of

probable cause.” Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997).

Hadley contends that the affidavit’s omissions were immaterial because the two

identifications of Fallen established probable cause. He analogizes this case to Wilson v.

Russo, where we held that an officer’s omission about an approximately six-inch height

1

The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367.

2

We also conclude that the District Court framed the relevant constitutional rights at the

appropriate level of specificity. See Orsatti v. New Jersey State Police, 71 F.3d 480, 483

(3d Cir. 1995) (arrest); Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995)

(detention); Gallo v. City of Philadelphia, 161 F.3d 217, 220 n.4 (3d Cir. 1998)

(prosecution); see also Pinkney v. Meadville, Pennsylvania, 95 F.4th 743, 749–50 (3d

Cir. 2024).

5

difference was immaterial because a witness had identified the plaintiff as the perpetrator.

212 F.3d 781, 791–92 (3d Cir. 2000). We explained that a “positive identification by a

victim witness, without more, would usually be sufficient to establish probable cause.”

Id. at 790.

But when the facts are viewed in the light most favorable to Fallen, the officers

knew of “[i]ndependent exculpatory evidence,” “substantial evidence of the [witnesses’]

own unreliability,” and a confession that undermined probable cause.3 Id. Capone and

Jasmine Jones identified Fallen over six months after the homicide. When identifying

Fallen, Capone said, “I do need to mention at the time his hair was not like that.” Dist. Ct.

Dkt. ECF No. 169-19 at 25. And when Hadley asked Jasmine Jones whether Fallen was

at the Doll House the night of the murder, she twice said, “I don’t know.” App. 217–18.

Not only did the officers know that Fallen was about six inches shorter than the suspect,

they also knew that the DNA test results excluded Fallen as a possible contributor. As we

explained in Wilson, “an otherwise credible victim identification would not provide

probable cause if police officers contemporaneously possessed reliable DNA evidence

which determined conclusively that the accused could not have committed the crime.”

212 F.3d at 790. Yet the affidavit omitted the DNA test results and alleged that Fallen

was with John Jones and Ramsey the night that she was murdered. So our dissenting

3

Hadley claims that his limited involvement in the investigation entitles him to qualified

immunity. We disagree. A reasonable jury could find otherwise because Hadley went

with McEnroe to Georgia to collect Fallen’s DNA and again to execute the arrest

warrant.

6

colleague’s abstract suggestion about a hypothetical case—in which conspiracy to

commit murder requires neither physical contact nor a murder—has nothing to do with

this case.

Even worse, taking the facts as we must at this stage in the light most favorable to

Fallen, Hadley knew that Love admitted he was the second perpetrator before Fallen was

taken into custody for six months. The District Court’s denial of qualified immunity

rested, in part, on the fact that “if Love confessed, on October 24, 2012, then McEnroe

and Hadley would have learned that the second suspect, ‘Big Red,’ was Love, not

[Fallen], one day before” Fallen’s arrest. Fallen v. City of Newark, 2023 WL 4118142, at

*20 (D.N.J. June 22, 2023). In response to that conclusion, Hadley argues only that this

factual dispute about Love resulted from a “clerical error” in one of his interrogatory

answers. Hadley Br. 19. But at this stage of the proceedings, we cannot accept at face

value Hadley’s suggestion that we disregard his interrogatory response.4 So a factfinder

will have to determine when Hadley learned of Love’s involvement in the murder. See

Johnson v. Jones, 515 U.S. 304, 313 (1995).

In sum, when the facts are viewed in the light most favorable to Fallen, Hadley

would not be entitled to qualified immunity because “an apparently valid warrant does

not render an officer immune from suit if his reliance on it is unreasonable in light of the

relevant circumstances.” Berg v. Cnty. of Allegheny, 219 F.3d 261, 273 (3d Cir. 2000)

4

Besides, Hadley testified in his deposition that Love made a statement related to the

murder of Ramsey on October 24, 2012, although he could not recall what Love

specifically said.

7

(per curiam) (explaining that such “circumstances include, but are not limited to, other

information that the officer possesses or to which he has reasonable access”). For that

reason, in Berg, we concluded that information learned by an arresting officer while

executing a warrant was relevant and required additional factfinding by the district court

before we could address qualified immunity. See id. (acknowledging that “Berg’s

cooperativeness, the fact that Berg had a driver’s license despite allegedly being on

parole for DUI, [and] the fact that Berg did not flee or ask his guests to leave” created

“valid questions concerning the reasonableness of” the arresting officer’s conduct). So

too here. If Love confessed before Fallen was taken into custody, no reasonable officer

could have relied on the arrest warrant at that point and Hadley would not be entitled to

qualified immunity.

Hadley did not respond to Fallen’s contention that the disputed timing of Love’s

confession precludes summary judgment. Normally, that failure would doom Hadley’s

appeal. But our dissenting colleague takes the baton from Hadley’s counsel and fashions

a lawyerly argument that Hadley could have made. He proffers that the timing of Love’s

confession is immaterial because it occurred after the officers had acquired the arrest

warrant.

We disagree with the notion that Love’s confession—and Fallen’s exoneration—

would have been immaterial. (It’s hard to imagine how actual innocence could ever be

immaterial to a criminal case). But that is beside the point because, as noted, Hadley

never made that argument in the District Court or this Court. And that failure is fatal to

8

Hadley’s appeal because our precedent precludes us from reversing the District Court

based on a forfeited argument. See United States v. Joseph, 730 F.3d 336, 337 (3d Cir.

2013) (“We hold that for parties to preserve an argument for appeal, they must have

raised the same argument in the District Court—merely raising an issue that encompasses

the appellate argument is not enough.”); United States v. Dupree, 617 F.3d 724, 728 (3d

Cir. 2010) (explaining that “courts rely on the litigants not only to cite relevant

precedents, but also to frame the issues for decision”).

The dissent responds at the highest level of generality by noting that “the clearly

established prong of the qualified immunity analysis” was “raised and argued in the

District Court and here.” Dissent at n.5. But that truism disregards Joseph, where we

explained that “raising an issue is not sufficient to preserve all arguments within the

issue.” 730 F.3d at 341. And because Hadley said nothing about the materiality of Love’s

confession in the District Court or this Court, he forfeited that argument. The dissent’s

reliance on Dempsey v. Bucknell University, 834 F.3d 457 (3d Cir. 2016)—a case Hadley

never cited—proves the point.

III

For the reasons stated, we will dismiss the appeal for lack of jurisdiction.

9

Fallen v. McEnroe, No. 23-2312

PHIPPS, Circuit Judge, dissenting.

Although Corey Fallen was arrested and detained for a crime he did not commit,

qualified immunity precludes his claim against Detective Joseph Hadley for false arrest in

violation of the Fourth Amendment. Even if the exculpatory information omitted from

the arrest warrant affidavit had been included, there would still have been probable cause

for the charge of conspiracy to commit murder, and so the omitted information was

immaterial. Furthermore, even assuming that the officers learned of additional

exculpatory evidence after the warrant issued but before its execution, an arrest of Fallen

under those circumstances would not be a clearly established Fourth Amendment

violation. For these reasons, as elaborated below, I respectfully dissent.

1. The Omitted Exculpatory Information Was Not Material.

Ordinarily, a valid arrest warrant issued by an impartial magistrate confers

qualified immunity on an arresting officer for claims of unlawful arrest.

See Messerschmidt v. Millender, 565 U.S. 535, 546 (2012). Under one of the two

recognized exceptions to that general rule, referred to as the ‘Franks exception,’ an

affidavit containing a “deliberate falsehood or reckless disregard for the truth,” strips a

law enforcement officer of the immunity provided by the warrant. Franks v. Delaware,

438 U.S. 154, 171 (1978) (justifying the exception on the grounds that such an affidavit

deprives the magistrate the opportunity to exercise his or her independent judgment).1 In

construing the Franks exception, this Court has interpreted the term ‘reckless disregard

for the truth’ to include the knowing or reckless omission of material exculpatory

information. See Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997) (citing Franks,

1

The other recognized exception applies to a warrant supported by only a ‘bare-bones’

affidavit. See United States v. Leon, 468 U.S. 897, 920 (1984); see also Malley v. Briggs,

475 U.S. 335, 341 (1986).

438 U.S. at 171–72). On appeal, Fallen argues that the affidavit in support of the warrant

for his arrest satisfied the Franks exception because it excluded three pieces of material

exculpatory information: (i) the results of a DNA test that did not find a match between

Fallen’s DNA and two profiles collected from the murder victim, Denise Ramsey; (ii) an

eyewitness’s expression of uncertainty after selecting Fallen from a photo array; and

(iii) eyewitness accounts that described the relevant suspect as tall and six-to-seven

inches taller than Fallen.2

I do not dispute that the omitted information was exculpatory to some degree. The

lack of a DNA match between Fallen and Ramsey suggests that he did not have physical

contact with her. Similarly, the statement of uncertainty by one of the eyewitnesses who

identified Fallen from a photo array made that identification less reliable. And as to the

height disparity, Fallen is five-foot-five, and so the eyewitness accounts that the relevant

suspect was about six-feet tall made it less likely that Fallen was the co-conspirator.

Although the omitted information was exculpatory, I do not view any of it – either

individually or cumulatively – as material. See Maryland v. Pringle, 540 U.S. 366, 372

n.2 (2003) (explaining probable cause must be considered in the “totality of the

circumstances,” not “in isolation”). Evaluating the materiality of omitted exculpatory

information involves reconstructing the record before the judge who issued the warrant

by including the omitted information. See Wilson v. Russo, 212 F.3d 781, 789 (3d Cir.

2000) (describing the undertaking as “the reconstructive surgery required by our

jurisprudence”). If, on that reconstructed record, there still would have been probable

2

In District Court, Fallen complained of other omissions from the arrest warrant affidavit

– his assertion that he had never been to New Jersey and evidence of a third possible

suspect. But the District Court ruled that those pieces of information were immaterial

and did not have to be included in the warrant affidavit. Fallen does not challenge those

rulings on appeal.

2

cause, then the omitted information was immaterial. See Sherwood, 113 F.3d at 402

(explaining that without the affirmatively false statements in the warrant application,

there still would have been probable cause for a search, and thus the Franks exception did

not provide a basis for defeating qualified immunity). Following that process here, the

issue becomes whether there would have been probable cause for Fallen’s arrest if the

exculpatory information had been included in the warrant application.

Probable cause for an arrest requires only “particularized suspicion” or “practical,

nontechnical probability” of guilt for an identified offense, not more-likely-than-not

evidence that the specific crime had been committed. Texas v. Brown, 460 U.S. 730, 742

(1983) (internal citation removed); see also Sherwood, 113 F.3d at 401. As a baseline,

the information in the original warrant affidavit, if it were the full story, would satisfy the

probable-cause standard for arresting Fallen for the crime of conspiracy to commit

murder. According to an eyewitness, the suspects were two African-American men from

Atlanta, one of whom was “gloating that he . . . just beat a murder charge.” Statement of

Gary Capone Tr. 9:16–17 (S.A. 31). Fallen, an African-American man, was one of two

people who had recently been acquitted of murder in Atlanta. The other possibility,

Corey Davis, was immediately excluded from suspicion because court records placed him

in Georgia at the time of Ramsey’s death in New Jersey, leaving Fallen as the only recent

acquittal without an apparent alibi. Later, two eyewitnesses independently identified

Fallen from a photo array and accused him of arguing with Ramsey over money,

threatening to kill her, and then leaving the club with her and Johnny Jones, the

confirmed killer. After checking for DNA from Fallen and Jones on the victim, the test

results positively placed Jones there, but not Fallen. Thus, Hadley and the other

detectives had reason to believe that the prior information was generally reliable – it led

3

to a positive identification of Jones, the actual killer – and based on the information in the

affidavit that was submitted, there was probable cause that Fallen conspired with Jones to

kill Ramsey.

Even on a reconstructed record that included the exculpatory information, there

would still have been probable cause to arrest Fallen for conspiracy to commit murder.

The DNA test results do not negate probable cause. Fallen was arrested for conspiracy to

commit murder, see N.J. Stat. § 2C:5-2, and under New Jersey law, conspiracy to commit

murder does not require physical contact with the victim or even that a murder takes

place at all. See State v. Cagno, 49 A.3d 388, 408 (N.J. 2012) (“[When] engaged in a

conspiracy . . . defendant would have been guilty of murder even if he had not been

present at the scene.”) (internal citation omitted); State v. Chevencek, 23 A.2d 176, 177

(N.J. 1941) (“[C]onspiracy to commit a crime is an offense, separate and distinct from the

crime that has been planned . . . .”). And so, the lack of a DNA match is not material to

the conspiracy charge: even without such a match, the reconstructed record still would

support a fair probability that Fallen conspired to commit murder. Cf. Reedy v. Evanson,

615 F.3d 197, 222 (3d Cir. 2010) (explaining DNA test results indicating that a third-

party committed a crime was material to the charge that the arrestee staged the crime and

falsified the police report).

Similarly, a statement of uncertainty by one of the two eyewitnesses who

identified Fallen from the photo array would not defeat probable cause. That eyewitness

still identified Fallen when Hadley, who was not previously involved in the investigation,

presented her with a photo array of six African-American men. Despite her stated

uncertainty, the officers viewed her as credible because her co-worker independently

4

identified Fallen as well, and she correctly identified Jones, the actual culprit, at the same

time.

The seven-inch disparity between the eyewitness accounts and Fallen’s actual

height is the most relevant piece of omitted exculpatory evidence. But investigations

commonly reveal conflicting evidence, and the probable-cause standard does not demand

an indisputably correct resolution of every conflict before a warrant may issue. See

Wright v. City of Philadelphia, 409 F.3d 595, 603 (3d Cir. 2005) (“[Probable cause] does

not require that officers correctly resolve conflicting evidence or that their determinations

of credibility, were, in retrospect, accurate.”). On similar facts, this Court held that a

seven-inch height disparity, in addition to two pieces of less persuasive exculpatory

evidence, did not negate a finding of probable cause. See Wilson v. Russo, 212 F.3d 781,

791–92 (3d Cir. 2000). Applying that precedent here, the seven-inch height disparity in

addition to two pieces of less persuasive exculpatory evidence – the lack of a DNA match

relative to a charge of conspiracy to commit murder and one eyewitness’s expression of

uncertainty as to her positive photo identification of Fallen – would not negate probable

cause.

Because probable cause would have existed on a reconstructed record, the Franks

exception is not met, and without a violation of a federal right, Hadley is entitled to

qualified immunity at summary judgment. See Pearson v. Callahan, 555 U.S. 223, 236

(2009); see also Dempsey v. Bucknell Univ., 834 F.3d 457, 472–73 (3d Cir. 2016).

2. It Was Not Clearly Established that the Omitted Exculpatory

Information Was Material.

Qualified immunity protects more than just constitutional actions by law

enforcement officers; it also extends to unconstitutional conduct that has not been clearly

established as such. See Pearson, 555 U.S. at 236. So even if Hadley violated Fallen’s

5

Fourth Amendment rights by arresting him, Hadley would receive qualified immunity as

long as the violation was not clearly established. To be clearly established, a right must

have been previously articulated at a level of specificity that would provide certainty to

any reasonable officer that his or her prospective conduct would violate that right. See

City of Escondido v. Emmons, 586 U.S. 38, 42 (2019) (“[T]he clearly established right

must be defined with specificity.”); District of Columbia v. Wesby, 583 U.S. 48, 63

(2018) (“To be clearly established, a legal principle must have a sufficiently clear

foundation in then-existing precedent.”). But at the time of Fallen’s arrest, it was not

clearly established in either controlling precedent or through a robust consensus of

persuasive authority that Hadley would have lacked probable cause on a reconstructed

record. See James v. N.J. State Police, 957 F.3d 165, 170 (3d Cir. 2020) (“For qualified-

immunity purposes, ‘clearly established rights are derived either from binding Supreme

Court and Third Circuit precedent or from a ‘robust consensus of cases of persuasive

authority in the Courts of Appeals.’” (quoting Bland v. City of Newark, 900 F.3d 77, 84

(3d Cir. 2018))). No then-existing precedent supports the proposition that a seven-inch

height differential coupled with two other pieces of less persuasive exculpatory evidence

defeats an otherwise strong showing of probable cause for an arrest warrant. Rather,

Wilson v. Russo held the opposite, viz., that a seven-inch height differential coupled with

two other pieces of less persuasive exculpatory information could not overcome a

showing of probable cause. See Wilson, 212 F.3d at 792. Based on that holding, a

reasonable officer could not be fairly on notice that the information omitted from the

warrant affidavit was material. See Kisela v. Hughes, 584 U.S. 100, 105 (2018)

(“[O]fficers are entitled to qualified immunity unless existing precedent ‘squarely

governs’ the specific facts at issue . . . and thereby provide[s] an officer notice . . . .”

6

(quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015))). Hence, any Fourth Amendment

violation associated with the omission of information from the warrant affidavit was not

clearly established.

To reach its outcome – a dismissal for lack of appellate jurisdiction – the Majority

Opinion relies on a dispute about facts that arose after the officers applied for a warrant to

arrest Fallen and Jones. The officers submitted that application on October 22, 2012, and

the Superior Court in Essex County, New Jersey, issued the warrant later that day. Then,

on October 24, 2012, Hadley and other officers attempted to execute the warrant in

Georgia, but when they went to Jones’s house, they encountered Love instead, and they

arrested him for possession of marijuana. The parties dispute whether at the time of his

arrest, Love confessed to being involved in the Ramsey murder. But they agree that

about two hours later, the officers attempted to arrest Fallen, and although he was not

home, he turned himself in the next day. And in 2014, Love confessed to his

involvement in Ramsey’s murder.

The Majority Opinion hinges on the materiality of the factual dispute over whether

Love confessed to his involvement in Ramsey’s murder before Fallen’s arrest. If Love

did confess before Fallen was arrested, then the Majority Opinion believes that qualified

immunity would not apply. But if Love did not confess until after Fallen was arrested,

then according to the Majority Opinion, Hadley would merit qualified immunity. Thus,

according to the Majority Opinion, that factual dispute prevents the resolution of the

qualified immunity issue at summary judgment, leaving the District Court’s ruling as a

non-final decision. Cf. 28 U.S.C. § 1291 (conferring appellate jurisdiction over final

decisions).

7

But when a party would otherwise be entitled to judgment as a matter of law, only

genuine disputes of material fact foreclose summary judgment. See Fed. R. Civ. P. 56(a).

And here, assuming arguendo that the factual dispute was genuine, it was not material.

Even if Love had confessed to murdering Ramsey two hours before the officers

attempted to arrest Fallen, that new information would not have triggered the Franks

exception. As this Court has explained, such after-acquired information is irrelevant to

the probable cause determination:

We emphasize that in making the determination about the existence of

probable cause, we examine only the information available to the officer at

the time of the swearing of the affidavit of probable cause. After-acquired

evidence, however significant for trial, does not inform an officer’s

knowledge or good faith as is relevant for our inquiry today.

Dempsey, 834 F.3d at 480.

And because new information falls outside the Franks exception, it does not

invalidate the qualified immunity conferred by the arrest warrant.

By contrast, the Majority Opinion impliedly endorses a constitutional duty to

supplement a warrant affidavit upon learning of material exculpatory information. The

Second Circuit has taken such an approach. See United States v. Marin-Buitrago,

734 F.2d 889, 893 (2d Cir. 1984) (characterizing the duty as one on officers, who “after a

warrant is issued but before it is executed, have an obligation to bring to the attention of

the issuing magistrate any new or corrective information that reasonably would have

affected the magistrate’s initial decision to issue the warrant,” and adding that a “[f]ailure

to apprise the magistrate of such information would result in the invalidation of the

warrant”). But other Circuits have not followed that lead. See, e.g., Safar v. Tingle,

859 F.3d 241, 247 (4th Cir. 2017) (“[W]e are unaware of a nebulous duty requiring police

officers to follow some undefined procedure whenever they come across further

8

information that casts doubt on an active arrest warrant.”); Peet v. City of Detroit,

502 F.3d 557, 565 (6th Cir. 2007) (finding no “rationale from cases or other authority that

would warrant a court-imposed requirement on police to release suspects the moment

sufficiently exculpatory evidence emerges”). And, as explained above, this Court has

taken a very different approach than the one taken by the Second Circuit. See Dempsey,

834 F.3d at 480.3

So, even if Hadley did learn of Love’s confession before Fallen’s arrest, this

Court’s precedent does not clearly establish that such a development would trigger the

Franks exception and defeat qualified immunity for a false arrest claim.4 Indeed, at least

one district judge has interpreted this Court’s precedent as not imposing a duty to

supplement a warrant affidavit with newly learned exculpatory information. See Maybin

v. Slobodian, 2017 WL 4310251, at *6 (E.D. Pa. Sept. 28, 2017) (“Once an affidavit is

sworn, however, officers do not have a duty to present new exculpatory facts. In

Dempsey, the Third Circuit laid down a bright-line rule that statements received after an

affidavit for probable cause is sworn cannot be considered when reconstructing an

affidavit.” (citations omitted)). Critically, the fact that a district judge construed this

Court’s precedent as allowing an officer to execute an arrest warrant after receiving new

exculpatory information, strongly suggests that any constitutional violation by Hadley for

doing so was not clearly established. So even if the factual dispute is resolved such that

3

Dempsey, decided in 2016, post-dates Fallen’s 2012 arrest, but as the circuit split on this

issue makes clear, even before this Court had controlling precedent on point, there was

not a robust consensus of persuasive authority that the Franks exception could be

satisfied by after-acquired exculpatory evidence.

4

The lack of clearly established law is even more pronounced upon consideration of the

embedded choice-of-law issue. Since the relevant events – the arrest and the disputed

confession – occurred in Georgia and in partnership with Georgia sheriffs, it is not clearly

established whether the precedent of this Court or that of Eleventh Circuit supplies the

controlling substantive legal standard.

9

Love confessed before Hadley attempted to arrest Fallen, Hadley would still merit

qualified immunity.5 Altogether, without clearly established precedent from this Court

that an otherwise valid arrest warrant loses its legitimacy upon an officer’s later

acquisition of material exculpatory information, Hadley merits qualified immunity.

***

For these reasons, I would reverse the denial of qualified immunity to Detective

Joseph Hadley.

5

To avoid any misunderstanding, it is the clearly established prong of the qualified

immunity analysis, which was raised and argued in the District Court and here, that is the

basis for my vote to vacate and remand: if Love confessed for the first time in 2014, then

there is no clearly established Fourth Amendment violation for arresting Fallen in 2012;

and even if Love confessed for the first time in October 2012, although it might have

been a Fourth Amendment violation to subsequently arrest Fallen, it was not clearly

established as such at that time by precedent. Thus, by operation of the ‘clearly

established’ prong of qualified immunity, there is no factual dispute in need of resolution

that prevents the exercise of appellate jurisdiction pursuant to the collateral order

doctrine, and Hadley is entitled qualified immunity. See Mitchell v. Forsyth, 472 U.S.

511, 528–29 (1985).

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