Gomez v. Atkins

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ISIDRO GOMEZ; LINDA L. GOMEZ, 

Wife,

Plaintiffs-Appellees,

v.

W. J. ATKINS, in his official and

individual capacity,

Defendant-Appellant,

and

EARL MOOSE BUTLER, Sheriff of

 No. 01-2112

Cumberland County, in his official

and individual capacity; H. R.

COLLINS, in his official and

individual capacity; JERRY D.

WEBSTER, in his individual capacity;

WESTERN SURETY COMPANY; DEBRA

KOENIG,

Defendants.



Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, Senior District Judge.

(CA-99-611-5-BR)

Argued: April 2, 2002

Decided: July 11, 2002

Before WILKINSON, Chief Judge, KING, Circuit Judge, and

HAMILTON, Senior Circuit Judge.

2 GOMEZ v. ATKINS

Vacated and remanded by published opinion. Judge King wrote the

opinion, in which Chief Judge Wilkinson and Judge Hamilton joined.

Judge Hamilton wrote a separate concurring opinion.

COUNSEL

ARGUED: Reginald B. Gillespie, Jr., FAISON & GILLESPIE, Dur-

ham, North Carolina, for Appellant. Carl Wesley Hodges, II, SHIP-

MAN & ASSOCIATES, L.L.P., Wilmington, North Carolina, for

Appellees. ON BRIEF: William C. Morgan, Jr., THE BROUGH

LAW FIRM, Chapel Hill, North Carolina, for Appellant. Gary K.

Shipman, SHIPMAN & ASSOCIATES, L.L.P., Wilmington, North

Carolina, for Appellees.

OPINION

KING, Circuit Judge:

Appellee Isidro Gomez ("Isidro") initiated this proceeding in the

Eastern District of North Carolina under the provisions of 42 U.S.C.

§ 1983. He contended that Sergeant W. J. Atkins of the Cumberland

County Sheriff’s Department (the "Sheriff’s Department") violated

his constitutional rights by causing him to be charged and arrested,

without probable cause, for the murder of his wife. He also asserted

various related state law claims. Sergeant Atkins sought summary

judgment in the district court, claiming qualified immunity. When the

court declined to recognize his immunity claim, he filed this interloc-

utory appeal. As explained below, we vacate and remand for dis-

missal.

I.

In July 1980, Rickie Jean Gomez, Isidro’s first wife, was murdered

in Fayetteville, North Carolina.1 In the latter half of 1980, the Sher-

1

In the record, Mrs. Gomez’s name is spelled as either "Rickie" or

"Ricki." Following the example of the parties and the district court, we

utilize "Rickie," except when the alternative is present in quotations.

GOMEZ v. ATKINS 3

iff’s Department conducted a lengthy investigation of the crime, but

it bore no fruit and lapsed into inactivity (the "Initial Investigation").

The investigation of the unsolved homicide was resurrected in 1995,

and a follow-up investigation (the "Follow-up") was conducted under

the auspices of Sergeant Atkins. A few months later, in May 1996,

Isidro, who had re-married in 1981, was charged with the murder of

his first wife. Following proceedings in the Cumberland County Dis-

trict Court, Isidro was indicted for first degree murder. The indictment

was subsequently dismissed, and this civil litigation ensued. The fac-

tual predicate for these proceedings is explained more fully below.

A.

In its Initial Investigation, the Sheriff’s Department learned that

Rickie Jean had married Isidro in 1968 and that the couple made their

home in Fayetteville. By 1979, Isidro and Rickie Jean were experi-

encing marital problems and they were, at times, living separately. In

July 1980, Isidro sought a reconciliation, and they met at her sister’s

home in Atlanta, Georgia, on Friday, July 11, 1980. At the end of the

weekend, on July 13, 1980, Isidro and Rickie Jean departed Atlanta

on their return to Fayetteville. After travelling only seven or eight

miles, Isidro’s vehicle broke down. Because the necessary repair parts

were unavailable, Isidro asked a friend, James Horton, to pick them

up and tow the car to Horton’s home in an Atlanta suburb. Horton and

his wife then invited the couple to spend the night, but Rickie Jean

declined because she was scheduled to work in Fayetteville the next

day. Thus, after dinner, Isidro and Horton transported Rickie Jean to

the Atlanta airport, and she returned to Fayetteville by plane. Isidro

spent Sunday evening in Georgia with the Hortons.

On Monday morning, July 14, 1980, Horton’s wife took Isidro to

obtain parts for the repair of his car. Isidro then made the necessary

repairs and, between 10:00 and 10:30 a.m., he departed for Fayette-

ville. The distance between the Hortons’ home near Atlanta and the

Gomez home in Fayetteville is approximately 376 miles. At about

6:20 p.m., Rickie Jean’s supervisor at Piedmont Airlines (her

employer), called Isidro at the Gomez home, advising him that,

although Rickie Jean had arrived in Fayetteville on a Sunday-evening

flight, she had not reported for work Monday morning.

4 GOMEZ v. ATKINS

Around 7:00 p.m. on July 14, 1980, after consulting with a neigh-

bor, Isidro called the local police and reported that Rickie Jean was

missing. Law enforcement officers arrived at the Gomez home a few

minutes later, and a crime scene investigation was conducted. There

were no signs of robbery or forced entry into the home, but the inves-

tigators discovered blood in and around the master bedroom, a large

blood stain on the underside of the mattress, and bloody shoe prints

in the driveway. Upon removing the blood-soaked mattress from the

bedroom, investigators noticed that Isidro was not distraught, and that

he seemed unconcerned that his wife was missing and possibly dead.

That evening, Isidro went to the County Law Enforcement Center to

be interviewed.

At approximately 10:20 the next morning, July 15, 1980, deputies

located Rickie Jean’s car, with her dead body inside, in a wooded area

about a mile from the Gomez home. She was wearing a nightgown,

and the investigators found bed linen from the master bedroom in her

car. An autopsy revealed that Rickie Jean had been badly beaten and

stabbed in the chest. The time of her death was established as being

six to thirty-six hours prior to the discovery of her body, i.e., between

10:00 p.m. on Sunday, July 13, and 4:00 a.m. on Tuesday, July 15,

1980.

During the Initial Investigation, Isidro provided the Sheriff’s

Department with blood and hair samples. Tests on the evidence found

at the Gomez home revealed the presence of both Types O and A

blood, the types of Rickie Jean and Isidro, respectively. Blood found

under Rickie Jean’s fingernails was the same type as Isidro’s. Loose

hairs found on Rickie Jean’s body were "microscopically consistent"

with Isidro’s hair. Investigators also discovered that Rickie Jean had

advised several of her friends that Isidro had previously subjected her

to physical abuse and beatings, and that he had threatened to kill her.

Throughout his interviews with the Sheriff’s Department, Isidro

maintained that he had not arrived home in Fayetteville until 6:00

p.m. on July 14, 1980, and that Rickie Jean’s car was not there when

he arrived. Shortly thereafter, according to Isidro, he noticed small

blood stains in the house. After receiving a phone call from Rickie

Jean’s supervisor, Isidro called friends and relatives in an effort to

locate Rickie Jean. Then, upon going outside to the driveway, he first

GOMEZ v. ATKINS 5

noticed a large brownish stain which turned out to be blood. Isidro

denied that he was involved in the death of Rickie Jean, maintaining

that it was impossible for him to have returned from Atlanta in time

to commit the murder and dispose of her body. On July 18, 1980, Isi-

dro was subjected to a polygraph examination on the matter, which

he failed.

After the Initial Investigation, no charges were brought in connec-

tion with the murder of Rickie Jean. In May 1981, ten months after

the murder, Isidro married his current wife and, because of a job

transfer, moved to Michigan. Due to subsequent transfers, Isidro and

his new wife, Linda, moved to Kentucky and finally to Virginia. All

the while, the homicide investigation of Rickie Jean’s death remained

pending and unsolved in the Sheriff’s Department.

B.

In 1994, fourteen years after the murder of Rickie Jean, Earl

"Moose" Butler was elected Sheriff of Cumberland County. After tak-

ing office, Sheriff Butler directed Sergeant Atkins to review the

County’s unsolved homicide cases, including that of Rickie Jean. In

November 1995, after reviewing the file on the Initial Investigation,

Atkins travelled to Virginia and interviewed Isidro. Isidro relayed to

Atkins essentially the same version of events he had provided the

Sheriff’s Department in 1980. Over the next six months, Atkins also

interviewed relatives, friends, and co-workers of Rickie Jean, both in

person and by phone. In all, he obtained the oral and written state-

ments of at least seventeen persons. Numerous individuals advised

Atkins that Rickie Jean claimed that Isidro had physically abused her,

and that he had threatened to kill her. For example, Sabrina Ross, a

friend of Rickie Jean, reported to Atkins that on one occasion Isidro

"had choked [Rickie Jean], threw her on the floor and slapped her in

the face," and that in a separate incident he "threw her against the wall

and caused her to [miscarry] their first child." Ross also stated that

Isidro repeatedly told Rickie Jean that he would kill her. Another wit-

ness informed Atkins about seeing bruises "around [Rickie Jean’s]

neck, her ribs, arms, and on her back." Additionally, her friends

informed Atkins that Rickie Jean and Isidro were each engaged in

extramarital love affairs. According to a person who spoke with Ric-

kie Jean the night before she left to meet Isidro in Atlanta, she was

6 GOMEZ v. ATKINS

planning to tell him about a romantic relationship with another man.

Atkins also learned that Rickie Jean and Isidro were engaged in a dis-

pute over the custody of their two children. And one witness informed

Atkins that Isidro had said "he would kill [Rickie Jean] before she got

the kids."

In April 1996, at Atkins’s request, Isidro provided new blood and

hair samples to the Sheriff’s Department, and it conducted DNA test-

ing. The Laboratory Corporation of America ("LabCorp") then com-

pared the DNA material found under Rickie Jean’s nails with Isidro’s

DNA profile, but the results failed to inculpate Isidro (the "LabCorp

DNA Report").

C.

Based on both the Initial Investigation and the Follow-up con-

ducted in 1995 and 1996, Sergeant Atkins then drafted a six-page

Statement of Investigating Officer in Detail (the "Report"), which

purported to summarize the facts surrounding the death of Rickie Jean

and the evidence pointing to Isidro as the culprit. The Report stated

that loose hairs found on Rickie Jean were consistent with Isidro’s

body hair, and that blood found under Rickie Jean’s fingernails was

of the same type as Isidro’s. After noting Isidro’s contention that he

did not return to Fayetteville until 6:00 p.m. on July 14, 1980, the

Report observed that Isidro could have arrived earlier without exceed-

ing the speed limit. Additionally, the Report recounted that Isidro and

Rickie Jean were each engaged in extramarital affairs, and that there

was an ongoing dispute between them over the custody of their chil-

dren. Finally, it observed that Isidro failed to show remorse over his

wife’s death, and that he had failed the polygraph examination relat-

ing to the investigation.2

2

Sergeant Atkins’s Report also contained at least three material inaccu-

racies. First, it stated that Isidro’s shoe size was the same as that found

in a bloody footprint in the driveway at the crime scene. Second, it

asserted that witnesses had spoken with Isidro in Fayetteville at 3:00 on

Monday afternoon, when the witness statements from the Initial Investi-

gation indicated that the first such conversation occurred at 6:20 p.m.

Third, relying on statements of officers who had travelled from Atlanta

to Fayetteville, the Report stated that the drive could be completed in

four-and-a-half to five hours without exceeding the speed limit, when in

fact the trip would take approximately seven hours without speeding.

GOMEZ v. ATKINS 7

On May 14, 1996, Sergeant Atkins met with his supervisors and

the legal advisor for the Sheriff’s Department (attorney Deborah

Koenig), for the purpose of discussing the homicide investigation and

how he should proceed with it.3 Atkins reviewed with them the evi-

dence from the Initial Investigation and the additional evidence

acquired in the Follow-up. He had concluded that there was sufficient

evidence to charge Isidro with the murder of Rickie Jean, and his

supervising officers and the legal advisor agreed.

Before seeking an arrest warrant for Isidro, Sergeant Atkins pre-

pared an affidavit, in which he stated that "based upon the original

investigation in 1980 and upon the continuing investigation from

1995 to 1996," Isidro "caused the death of his wife Ricki Jean

Gomez." Prior to executing his affidavit, Atkins reviewed its contents

with attorney Koenig, who responded that "it look[s] good to me."

Atkins then presented the affidavit to a magistrate in the Cumberland

County District Court, seeking issuance of an arrest warrant. The

magistrate, on May 14, 1996, issued a murder warrant for Isidro,

based on the "information furnished under oath," and Isidro was

arrested at his home in Chesterfield, Virginia. He was then trans-

ported to Cumberland County, and on May 24, 1996, he was released

on bond.

D.

After being arrested for the murder of his wife, Isidro retained law-

yer Bobby Deaver of Fayetteville as his counsel. At a two-day

probable-cause hearing conducted in the district court in September

1996, the issue of probable cause was litigated.4 In support thereof,

the prosecution presented the testimony of six witnesses, photographs

3

Sheriff Butler was not present at the meeting, but the Chief Deputy,

Chief Detective, and other supervising officers from the Sheriff’s Depart-

ment attended.

4

The conduct of a probable-cause hearing in North Carolina is gov-

erned by N.C. Gen. Stat. § 15A-606(a). The purpose of such a hearing

is "to determine whether the accused should be discharged or whether

sufficient probable cause exists to bind the case over to superior court

and to seek an indictment against the defendant." State v. Sellars, 278

S.E.2d 907, 913 (N.C. Ct. App. 1981).

8 GOMEZ v. ATKINS

of the blood evidence found in the driveway and master bedroom of

the Gomez home, as well as the autopsy report and its accompanying

photographs. One of the two testifying law officers read Isidro’s July

15, 1980, statement into the record, spelling out Isidro’s version of the

events. During the hearing, attorney Deaver cross-examined the

State’s witnesses and, in response to the State’s case, he presented

evidence on behalf of Isidro, consisting of a statement by an alibi wit-

ness and the exculpatory LabCorp DNA Report. At the conclusion of

the hearing, on September 27, 1996, the district court found "there is

probable cause to believe that Ricki Jean Gomez was murdered on or

about the 14th day of July, 1980, and that there is probable cause to

believe that the defendant, Isidro Gomez, committed that offense of

murder in the first degree." The next month, the district attorney

sought, and the grand jury returned, a single-count indictment against

Isidro, charging him with first degree murder in the death of Rickie

Jean.

Following the indictment, while Isidro was on bond, the State’s

position on his case changed. In October 1996, LabCorp conducted

additional DNA tests on fingernail scrapings from Rickie Jean, and

it was determined that Isidro was "excluded as a possible contributor

to the genetic material in this sample." Thereafter, the Sheriff’s

Department submitted Isidro’s hair sample and loose hairs found on

Rickie Jean’s body to the FBI Laboratory. In its Report of September

30, 1997, the FBI determined that the hairs examined and compared

were microscopically dissimilar, and it also concluded that some of

the loose hairs on Rickie Jean’s body, initially believed to belong to

Isidro, were carpet fiber. Faced with the burden of proving Isidro’s

guilt beyond a reasonable doubt, the district attorney concluded that

there was "insufficient evidence to continue the prosecution" and, on

January 13, 1998, he dismissed the indictment. No further charges

have been preferred.

E.

On September 10, 1999, Isidro and Linda Gomez filed this § 1983

suit against Sergeant Atkins, Sheriff Butler, and certain other officers,

in both their official and individual capacities.5 Their Complaint

5

In addition to Sergeant Atkins and Sheriff Butler, the Complaint

named the following as defendants: Detective Sheriff H.R. Collins of the

GOMEZ v. ATKINS 9

alleged, inter alia, that Atkins and Butler had violated Isidro’s Fourth

Amendment right to be free from unreasonable seizure. Isidro’s pres-

ent wife, Linda Gomez, sought damages for loss of consortium.

On November 17, 2000, Sergeant Atkins and Sheriff Butler filed

a joint motion for summary judgment, maintaining that they were

entitled to qualified immunity for their actions in the investigation and

arrest of Isidro. Conversely, Isidro asserted that qualified immunity

was inappropriate because, after considering his alibi and correcting

the errors in Atkins’s Report, no reasonable officer could believe

there was probable cause to arrest him. On December 27, 2000, Isidro

dismissed all the claims against Butler in his individual capacity, ren-

dering Butler’s claim of qualified immunity moot. On August 27,

2001, the district court issued its Order denying Atkins’s qualified

immunity claim. Gomez v. Butler, Order, No. 5:99-CV-611-BR(2)

(E.D.N.C. Aug. 27, 2001) (the "Order"). The court concluded, inter

alia, that the evidence was insufficient to establish probable cause to

charge Isidro and that "a reasonable officer could not have believed

that there was probable cause to seek an arrest warrant under the cir-

cumstances." Id. at 17. Atkins then appealed to this Court from the

denial of his immunity claim, and, on September 20, 2001, the district

court proceedings were stayed pending our review of his claim. We

possess jurisdiction pursuant to the collateral order doctrine. Mitchell

v. Forsyth, 472 U.S. 511, 530 (1985); Wadkins v. Arnold, 214 F.3d

535, 536 n.1 (4th Cir. 2000).

II.

We review de novo a district court’s denial of qualified immunity.

As a general proposition, in assessing a qualified immunity claim, a

Cumberland County Sheriff’s Department, Jerry D. Webster of the North

Carolina State Bureau of Investigation, and Western Surety Company.

An Amended Complaint, filed July 17, 2000, named Ms. Koenig, the

legal advisor, as a defendant. The plaintiffs thereafter dismissed Collins,

Webster, and Koenig. They did not sue the district attorney, the magis-

trate, the district court judge, or the grand jury. See Wadkins v. Arnold,

214 F.3d 535, 538 n.5 (4th Cir. 2000) (explaining that judicial officers

acting in their judicial capacities and prosecutors authorizing prosecution

are protected by absolute immunity).

10 GOMEZ v. ATKINS

court must view the facts in the light most favorable to the party

asserting the injury. Saucier v. Katz, 533 U.S. 194, 201 (2001). As

such, to the extent that there is a factual dispute concerning what Ser-

geant Atkins knew after conducting his Follow-up investigation, we

must resolve any such dispute in the light most favorable to Isidro.

However, to the extent that Atkins decided to discount certain con-

flicting evidence, such as Isidro’s alibi, we need not accept such dis-

counted evidence in the light most favorable to him. Were we

compelled to accept an alibi that a law officer has declined to credit,

the officer could never be deemed to have acted reasonably, and we

would eliminate any possibility of qualified immunity in a § 1983

case. Instead, as we explain more fully below, to the extent that

Atkins discounted Isidro’s alibi or interpreted certain evidence, our

review must assess whether, in so doing, he acted in an objectively

reasonable manner, i.e., whether an objective officer could have rea-

sonably believed there was probable cause for an arrest. Torchinsky

v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991).

III.

A.

Public officials engaged in the performance of discretionary func-

tions are entitled to qualified immunity from civil liability to the

extent "their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Trulock v.

Freeh, 275 F.3d 391, 399 (4th Cir. 2001). The Supreme Court has

recognized that such immunity protects "all but the plainly incompe-

tent or those who knowingly violate the law." Malley v. Briggs, 475

U.S. 335, 341 (1986). In particular, as we have spelled out with speci-

ficity, qualified immunity protects law officers from "bad guesses in

gray areas," and it ensures that they may be held personally liable

only "for transgressing bright lines." Maciariello v. Sumner, 973 F.2d

295, 298 (4th Cir. 1992).

In an appeal from the denial of a qualified immunity claim, our

first task is to ascertain whether the officer’s conduct violated a con-

stitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001); see also

Clem v. Corbeau, 284 F.3d 543, 549 (4th Cir. 2002). If the answer to

GOMEZ v. ATKINS 11

this inquiry is "no," the analysis ends and the plaintiff cannot prevail.

If the answer is "yes," we must then consider whether, at the time of

the violation, the constitutional right was clearly established, that 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 201-02;

see also Taylor v. Waters, 81 F.3d 429, 433 (4th Cir. 1996) (quoting

Gordon v. Kidd, 971 F.2d 1087, 1093 (4th Cir. 1992)).

B.

The § 1983 claim being pursued by Isidro is, in substance, that Ser-

geant Atkins violated his Fourth Amendment right not to be arrested

without probable cause. Isidro contends that, in seeking the arrest

warrant, Atkins ignored exculpatory evidence and made false state-

ments in support of the warrant application. Isidro maintains that

Atkins sought the arrest warrant despite the fact that there were no

indicia of probable cause, and he further maintains that Atkins’s mis-

statements initiated the improper prosecution. In our assessment of

whether Atkins is entitled to qualified immunity, however, the ques-

tion is not whether there actually was probable cause for the murder

warrant against Isidro, but whether an objective law officer could rea-

sonably have believed probable cause to exist. Torchinsky v. Siwinski,

942 F.2d 257, 260 (4th Cir. 1991). As the Supreme Court stated in

Malley v. Briggs, "[o]nly where the warrant application is so lacking

in indicia of probable cause as to render official belief in its existence

unreasonable will the shield of immunity be lost." (citations omitted).

475 U.S. at 344-45. In Anderson v. Creighton, the Court set forth the

underlying rationale for this favorable standard, observing that "[i]t is

inevitable that law enforcement officials will in some cases reason-

ably but mistakenly conclude that probable cause is present, and . . .

like other officials who act in ways they reasonably believe to be law-

ful[,] [they] should not be held personally liable." 483 U.S. 635, 641

(1987).

C.

In assessing whether probable cause existed when the murder war-

rant against Isidro was issued, we must "examine the totality of the

circumstances known to the officer at the time of the arrest." Taylor,

81 F.3d at 434 (citing United States v. Al-Talib, 55 F.3d 923, 931 (4th

12 GOMEZ v. ATKINS

Cir. 1995)). We are guided in this endeavor by certain fundamental

principles. First, the determination and existence of probable cause is

a "practical, nontechnical conception," and it involves "factual and

practical considerations of everyday life on which reasonable and pru-

dent men, not legal technicians, act." Brinegar v. United States, 338

U.S. 160, 175-76 (1949). Furthermore, in determining whether proba-

ble cause exists, the evidence "must be seen and weighed not in terms

of library analysis by scholars, but as understood by those versed in

the field of law enforcement." Illinois v. Gates, 462 U.S. 213, 232

(1983).

Probable cause will be found to exist when "the facts and circum-

stances within an officer’s knowledge — or of which he possesses

reasonably trustworthy information — are sufficient in themselves to

convince a person of reasonable caution that an offense has been or

is being committed." Wadkins v. Arnold, 214 F.3d 535, 539 (4th Cir.

2000) (citing Brinegar, 338 U.S. at 175-76). While probable cause

demands "more than a mere suspicion, . . . evidence sufficient to con-

vict is not required." Taylor, 81 F.3d at 434 (citing Wong Sun v.

United States, 371 U.S. 471, 479 (1963)). And reasonable law officers

need not "resolve every doubt about a suspect’s guilt before probable

cause is established." Torchinsky, 942 F.2d at 264 (citation omitted).

While officers "may not disregard readily available exculpatory evi-

dence . . . the failure to pursue a potentially exculpatory lead is not

sufficient to negate probable cause." Wadkins, 214 F.3d at 541.

IV.

In order for Sergeant Atkins to successfully claim qualified immu-

nity in this case, the information within his knowledge at the time of

the warrant application had to justify a reasonable belief that Isidro

probably caused the death of Rickie Jean. Contrary to the conclusion

of the district court, our assessment of the information connecting Isi-

dro to the crime compels the view that the warrant application was not

"so lacking in indicia of probable cause as to render official belief in

its existence unreasonable." Malley v. Briggs, 475 U.S. 335, 344-45

(1986). In the circumstances of the case, Atkins did not transgress any

bright lines, Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.

1992), and to the extent he made mistakes, they are entirely insuffi-

cient to render him liable to a § 1983 action. Torchinsky v. Siwinski,

GOMEZ v. ATKINS 13

942 F.2d 257, 261 (4th Cir. 1991). Our analysis of the record here

leads us inexorably to this conclusion. Isidro possessed a strong

motive to harm or kill Rickie Jean; he had the opportunity to commit

the crime; he was linked to the murder by physical evidence; and

Atkins was entitled to disbelieve his alibi. From a procedural stand-

point, Atkins acted in a prudent manner, and his view of the probable

cause question passed muster in state court. We explain our analysis

more fully below.

A.

1.

First, both the Initial Investigation and the Follow-up revealed that

Isidro possessed a strong motive to injure Rickie Jean, and that he had

made prior threats to both harm and kill her. See Matter of Extradition

of Kraiselburd, 786 F.2d 1395, 1399 (9th Cir. 1986) (stating that "evi-

dence of appellant’s motive and threats amply supports a finding of

probable cause"). Friends of Rickie Jean had informed Sergeant

Atkins that both she and Isidro were engaged in extramarital affairs.

According to a witness who spoke with Rickie Jean the night before

she met Isidro in Atlanta, "she was going to tell [Isidro] about her

relationship with [another man]."

Additionally, the Initial Investigation revealed, and Sergeant

Atkins was advised by several witnesses, that Isidro had repeatedly

physically abused and threatened to kill Rickie Jean. Isidro and Rickie

Jean were engaged in violent disputes over who should have custody

of their children, and Isidro had said "he would kill [Rickie Jean]

before she got the kids." As those "versed in the field of law enforce-

ment" well know, see Illinois v. Gates, 462 U.S. 213, 232 (1983), it

is common for death threats to be made in domestic violence matters.

Unfortunately, they are too often carried out, resulting in serious

injury and death.

2.

Second, based on the information in the hands of Sergeant Atkins,

Isidro possessed an ample opportunity to commit the brutal murder of

14 GOMEZ v. ATKINS

his wife. He had departed from Atlanta as early as 10:00 a.m. on July

14, 1980, and the police did not arrive at the Gomez home until after

7:00 that evening. Isidro thus had a nine-hour window, before calling

the authorities, within which to travel from Atlanta to Fayetteville,

kill his wife, and then dispose of her body. Indeed, he admits being

at the murder scene by 6:00 p.m., at least an hour before he called the

authorities.6

3.

Third, while it was not overly compelling, some of the available

physical evidence linked Isidro to the crime. Although the LabCorp

DNA Report concluded that material found under Rickie Jean’s fin-

gernails did not match Isidro’s DNA profile, other blood evidence

could be reasonably construed to connect Isidro to the crime. Rickie

Jean had Type O blood, yet Type A blood (Isidro’s type) was found

in the master bedroom where she was murdered. More importantly,

Type A blood was found under Rickie Jean’s fingernails. And, at the

time the warrant was issued, loose hairs found on Rickie Jean’s body

were determined to be microscopically consistent with Isidro’s hair.

Finally, investigators at the crime scene believed that Isidro had con-

ducted himself in a strange manner, and that he had failed to express

grief or remorse, despite the fact that his wife was missing and the

evidence indicated that foul play had occurred.

4.

Fourth, Sergeant Atkins was entitled to disbelieve Isidro’s alibi.

And to the extent that the alibi was deemed false, it was also reason-

able for Atkins to view it as inculpatory. See United States v. Mojica-

Baez, 229 F.3d 292, 306 (1st Cir. 2000) (explaining that "false alibi

was itself evidence of guilt"). In both 1980 and 1995, Isidro claimed

that he drove no faster than the speed limit from Atlanta to Fayette-

ville, and that he did not arrive home until 6:00 p.m. on July 14. Thus,

Isidro maintained that he did not have a sufficient opportunity to mur-

der Rickie Jean and move her body before the authorities arrived in

response to his 7:00 p.m. phone call. A reasonable officer, however,

6

It is of additional significance that Rickie Jean was murdered in her

own home, and that there were no signs of forced entry or robbery.

GOMEZ v. ATKINS 15

was not obliged to credit Isidro’s exculpatory story. For example, if

Isidro departed Atlanta at 10:00 a.m., and if he averaged sixty-five

miles per hour, he could have stopped for fuel and still arrived in Fay-

etteville by 4:00 p.m.7 Thus, Isidro could reasonably be placed at his

home more than two hours before he claims to have arrived. And,

although such results are generally not admissible in a criminal trial,

Isidro had failed a polygraph examination in connection with his ver-

sion of events.8 Thus, an objectively reasonable officer was entitled

to conclude that Isidro was providing the authorities with a false alibi.

B.

It is important to our analysis that Sergeant Atkins conducted him-

self, from a procedural standpoint, in a prudent and deliberate man-

ner. After carrying out his Follow-up investigation, he drafted a

written Report and, before seeking judicial action against Isidro, he

presented the case to his supervisors and the legal advisor of the Sher-

iff’s Department. After receiving their supportive opinions, he pro-

vided his proposed affidavit to the Department’s legal advisor for her

review. It was only after following these "in-house" review proce-

dures that Atkins presented the affidavit to the magistrate and sought

the issuance of a murder warrant against Isidro. See Wadkins v.

Arnold, 214 F.3d 535, 541-42 (4th Cir. 2000) (recognizing that offi-

cer’s "conference with the Commonwealth’s Attorney and the subse-

quent issuance of the warrants by a neutral and detached magistrate

weigh heavily toward a finding that [officer] is immune").

7

In order to drive from Atlanta to Fayetteville, Isidro took Interstate 20

East to Florence, South Carolina, and then proceeded North on Interstate

95, a distance of approximately 376 miles. If he drove at the then fifty-

five mile per hour speed limit, the trip would have taken about seven

hours, placing him in Fayetteville as early as 5:00 p.m. If he averaged

seventy miles per hour, however, he would have completed the trip in

less than five-and-a-half hours, and he would have been home in Fayette-

ville prior to 3:30 p.m.

8

While polygraph results are generally not admissible at trial, such

tests are a well-recognized law enforcement technique, and a reasonable

officer might take their results into account in assessing probable cause.

See United States v. Trenkler, 61 F.3d 45, 58 (1st Cir. 1995) (recognizing

that law enforcement officers rely on polygraph examinations even

though they are generally not admissible).

16 GOMEZ v. ATKINS

In our assessment of objective reasonableness, it is also significant

that Atkins arrested Isidro only after first seeking and procuring the

approval of a detached district court magistrate. This was the proper

course of action on his part. As Chief Judge Wilkinson astutely

observed in our Torchinsky decision, while the issuance of an arrest

warrant does not provide per se evidence of objective reasonableness,

a law officer’s "actions in seeking [an] arrest warrant[ ] and the mag-

istrate’s determination of probable cause provide additional support

for his claim that he acted with objective reasonableness." Torchinsky,

942 F.2d at 262.

C.

Finally, and perhaps of most significance to our assessment of Ser-

geant Atkins’s qualified immunity claim, we must take account of the

comprehensive probable-cause hearing conducted on the murder

charge made against Isidro. During the two-day hearing in September

1996, the district court judge heard and evaluated the testimony of the

State’s six witnesses, all of whom were cross-examined by Isidro’s

retained counsel. One of the witnesses read Isidro’s July 15, 1980,

statement, containing his version of the events, to the judge. During

the hearing, the prosecution presented photographic and medical evi-

dence relating to the crime, and Isidro’s counsel countered with an

alibi statement and the exculpatory LabCorp DNA Report. After

reviewing and considering this evidence and the argument of counsel,

the judge reached the same conclusion as had the magistrate, finding

"that there is probable cause to believe that the defendant, Isidro

Gomez, committed that offense of murder in the first degree," and the

court bound Isidro over for grand jury proceedings. And following the

court’s probable-cause ruling in favor of the prosecution, the district

attorney successfully secured an indictment from the Cumberland

County grand jury, charging Isidro with the first degree murder of

Rickie Jean Gomez.

The district court, in denying Sergeant Atkins’s qualified immunity

claim, placed substantial reliance on the errors found in his Report,

see supra note 2, and it emphasized the potential that those with

whom Atkins dealt may have been misled by the Report.9 Order at 12-

9

According to Sergeant Atkins, he provided his Report to the magis-

trate, along with his affidavit, in seeking the arrest warrant. The Report

GOMEZ v. ATKINS 17

13. The probable-cause hearing, however, afforded Isidro a full

opportunity to litigate, in an adversary proceeding before an impartial

judge, the issue of probable cause. After the State presented its evi-

dence, and after Isidro’s counsel cross-examined the witnesses and

introduced exculpatory evidence, the district court judge (who, not

having reviewed the Report, could not have been influenced by any

errors therein) found probable cause for the murder charge.

The Supreme Court, in Malley v. Briggs, emphasized that qualified

immunity protects "all but the plainly incompetent or those who

knowingly violate the law." 475 U.S. 335, 341 (1986). In this case,

Isidro has failed to forecast any evidence establishing that the Report

was intentionally falsified by Sergeant Atkins. As we explained in

Torchinsky, "[i]f reasonable mistakes were actionable, difficult ques-

tions of discretion would always be resolved in favor of inaction, and

effective law enforcement would be lost." 942 F.2d at 261. The con-

duct complained of here fails to demonstrate either incompetence or

a knowing violation of the law and, in these circumstances, Atkins’s

immunity claim must be recognized.10

V.

Pursuant to the foregoing, we vacate the Order of the district court,

and we remand for dismissal.

VACATED AND REMANDED

was unsworn, however, and in issuing the warrant the magistrate relied

only on information "furnished under oath." Nothing in the record indi-

cates that the district court judge had access to or reviewed the Report

prior to his finding of probable cause.

10

Atkins also asserts that Isidro is collaterally estopped from asserting

that there was no probable cause for his arrest, because that issue was

fully litigated in the probable-cause hearing before the Cumberland

County District Court. Because Atkins is entitled to qualified immunity,

we need not address his collateral estoppel contention.

18 GOMEZ v. ATKINS

HAMILTON, Senior Circuit Judge, concurring:

For the reasons expressed by the court today, I agree with the court

that Sergeant Atkins is entitled to qualified immunity because, not-

withstanding the factual inaccuracies in Sergeant Atkins’ report, an

objective law enforcement officer reasonably could have believed that

probable cause existed for the arrest of Isidro. Therefore, I join the

court’s opinion.

I write separately only to express my disdain for Sergeant Atkins’

inclusion of the material factual inaccuracies, described in Footnote

2 of the court’s opinion, in his report. These material factual inaccura-

cies, which dealt with the heart of the State’s case, i.e., whether Isidro

murdered his first wife, should not have been in Sergeant Atkins’

report. While the presence of these material factual inaccuracies in the

report do not prevent Sergeant Atkins from invoking qualified immu-

nity, it is nevertheless a disturbing commentary on the manner in

which law enforcement activities are conducted in Cumberland

County, North Carolina.