Wilson v. Russo

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

5-19-2000

Wilson v. Russo

Precedential or Non-Precedential:

Docket 98-5283

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Filed May 19, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-5283

FRANKLIN WILSON, Appellant

v.

DARRIN J. RUSSO, INDIVIDUALLY AND AS A POLICE

OFFICER OF THE FRANKLIN TOWNSHIP POLICE

DEPARTMENT, SOMERSET COUNTY, NEW JERSEY;

CLEMENT WORONIECKI, INDIVIDUALLY AND AS A

POLICE OFFICER OF THE FRANKLIN TOWNSHIP POLICE

DEPARTMENT, SOMERSET COUNTY, NEW JERSEY;

FRANKLIN TOWNSHIP POLICE DEPARTMENT, SOMERSET

COUNTY, NEW JERSEY; TOWNSHIP OF FRANKLIN,

SOMERSET COUNTY, NEW JERSEY; JOHN DOES, 1-15,

represent 1 or more employees or agents of defendant,

Franklin Township Police Department who, singly or in

combination participated in the unlawful search, false

arrest and false imprisonment of the plaintiff; 16-30,

represent 1 or more employees or agents of said

defendant who, singly or in combination participated in

the supervision and training of the defendants, Russo,

Woroniecki, and John Does 1-15; 31-45, represent 1 or

more employees or agents of defendant, Township of

Franklin who, singly or in combination, participated in

the supervision and training of said individual defendants.

On Appeal From the United States District Court

For the District of New Jersey

(D.C. Civ. No. 97-cv-00546)

District Judge: Honorable Mary Little Cooper

Argued: November 4, 1999

Before: BECKER, Chief Judge, GARTH, Circuit Judges

and POLLAK,* District Judge

(Filed: May 19, 2000)

IRINA ELGART, ESQUIRE (ARGUED)

Wolff & Samson

5 Becker Farm Road

Roseland, NJ 07068

LOUIS S. RAVESON, ESQUIRE

Urban Legal Clinic, Rutgers-Newark

15 Washington Street

Newark, NJ 07102

Counsel for Appellant

RICHARD J. GUSS, ESQUIRE

(ARGUED)

Bivona, Cohen, Kunzman, Coley,

Yospin, Bernstein & DiFrancesco

15 Mountain Blvd.

Warren, NJ 07059

Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

Franklin Wilson was arrested and spent a month in jail

for an armed robbery he did not commit. As plaintiff in this

civil rights lawsuit arising under 42 U.S.C. S 1983, he

claims that his arrest and subsequent incarceration

violated his federal and state constitutional rights to be free

from arrest and detention without probable cause. The crux

of his claim is that the arresting officer, defendant Darrin J.

_________________________________________________________________

* Honorable Louis H. Pollak, United States District Court Judge for the

Eastern District of Pennsylvania, sitting by designation.

2

Russo, both lied and omitted material facts during his

application for Wilson's arrest warrant. Russo told the

judge that two victims, who each had ample opportunity to

view the robber, had stated that the assailant was between

6'3" and 6'5". Russo did not, however, tell him that

Wilson's driving abstract showed him to be 5'11". Nor did

Russo tell the judge that one of these eyewitnesses did not

identify Wilson when shown a photographic array. What he

did tell him was that the other victim positively identified

Wilson, and that someone else had seen Wilson in the

vicinity near the time of the robbery. Wilson urges us to

decide that Russo omitted the exculpatory facts with

"reckless disregard for the truth" and that the warrant

affidavit would not have established probable cause if the

officer had been more forthcoming.

The District Court found that Russo had qualified

immunity and granted summary judgment in his favor. In

evaluating a claim that an officer both asserted and omitted

facts with reckless disregard for the truth, we hold that: (1)

omissions are made with reckless disregard for the truth

when an officer recklessly omits facts that any reasonable

person would know that a judge would want to know; and

(2) assertions are made with reckless disregard for the truth

when an officer has obvious reasons to doubt the truth of

what he or she is asserting. Viewing the facts in the light

most favorable to the plaintiff, we conclude that Russo

acted in reckless disregard for the truth in some, but not

all, of his omissions and assertions to the judge. However,

since none of these misstatements or omissions were

material, in that the warrant would have established

probable cause even if Russo had not made them, we

conclude that Wilson's right to be free from arrest without

probable cause was not violated. Therefore, we affirm the

grant of summary judgment.1

_________________________________________________________________

1. Wilson also appeals the District Court's grant of summary judgment to

the officer who initiated the investigation, Clement Woroniecki, who, he

alleges, violated his rights by inadequate and sloppy investigation.

However, there is insufficient evidence in the record that Woroniecki's

actions effected a deprivation of Wilson's rights, let alone an

unconstitutional deprivation. As we discuss further infra at note 5,

negligent police work, even if proven, does not violate the due process

3

I. Facts and Procedural History

A. The Robbery and Preliminary Investigation

On February 3, 1995, Officers Lipp and Woroniecki of the

Franklin Township (New Jersey) Police Department

responded to a call reporting an armed robbery at the Great

Expressions Floral Shop in the Franklin Towne Center.

Detective Woroniecki interviewed Renee Braverman, the

owner of the shop, and Graham Druce, an employee in the

shop. They both said that the robber was in the store from

a little before 3:00 pm until approximately 3:50 pm. When

the robber entered the shop, Braverman was discussing a

bridal order with a customer. Several times during the

robber's visit, Druce approached him and asked him if he

needed assistance, which he repeatedly declined. The bridal

order customer left around 3:50, and the robber brought a

glass vase and candle to the counter, behind which

Braverman was standing. The robber asked Druce, who

was standing in the back room, if the candle would cause

the glass vase to break. When Druce walked towards the

counter the robber put his left hand on Druce's right

shoulder and told Braverman to empty the register quickly

and put the money in a brown paper bag along with the

candle and vase. Druce and Braverman both said they saw

a small revolver in his right hand.

Braverman, a white woman who is "around five six,"

described the robber as a light skinned black male,

approximately 30 years old, "very tall," between 6'2" and

6'4", between 190 and 200 pounds, with black wavy hair,

a waist-length light denim jacket, cream colored sweater,

and blue denim jeans. Druce, a "five-five,five-six" white

man, described the robber as a "very tall male, light black

in color, his middle 20s, about 25, about 6'5" tall, maybe a

_________________________________________________________________

clause. We will therefore affirm the District Court's grant of summary

judgment for Woroniecki without further discussion.

Wilson originally sued the Franklin Township Police Department and

the Township of Franklin, but he did not appeal the District Court's

grant of summary judgment as to those parties.

4

little bit taller." He told the police the robber had an athletic

build, was clean shaven, had well groomed short hair and

was wearing a blue denim jacket, blue denim jeans, and

sneakers. Druce said that if he saw a picture of the robber

he was absolutely certain he could pick him out because of

his noticeable height.

Detective Bisignio, also of the Franklin Township Police,

canvassed the area for witnesses. Kelly N. DaVila, who

worked in a nearby dental office, told him that she had

seen a dental patient named Franklin Wilson in the

Franklin Center, walking away from the Mayfair Foodtown

Area towards a pizza shop after 3:00 that day, "probably

about a half hour" before the police officers arrived (making

her estimated viewing around 3:30). She described Wilson

as a 6'0" tall, clean shaven, thin, light-skinned black man

with brown hair and brown eyes. She told Bisignio that he

had some entanglement with heroin because his dental

records indicated that he was seeking methadone

treatment.

Bisignio relayed this information to Woroniecki, who

conducted a criminal history and Department of Motor

Vehicles (DMV) check of Wilson. The criminal history report

listed Wilson as being 5'10" and weighing 160 pounds. The

DMV record apparently listed him as being 5'11".

Woroniecki received a photograph of Wilson from the

Middlesex County Identification Bureau, which he took to

the Somerset County Sheriff 's Office in order to compile a

photographic lineup. The office compiling the photographic

array was apparently not aware of the physical descriptions

of the witnesses. On the afternoon of February 6,

Woroniecki fell ill and ceased all involvement in the

investigation of the floral shop robbery.

Detective Russo took over the investigation. On February

6, he was provided with Officer Lipp's report and the

photographic array from the Somerset County Sheriff 's

Office. Lipp's report includes a summary of the robbery and

a description of the robber that combined the Druce and

Braverman physical descriptions. The report identifies the

robber as between 6'3" and 6'5". It does not mention

DaVila's assertion that she saw Wilson. Russo claimed that

he did not review any other officer's notes. He testified that

5

he reviewed and authorized the photographic array without

knowing what the witnesses had said about the robber.

Russo showed the photographic array to Braverman and

Druce individually. He told them each that the robber

might not be in the array, and that if they were to identify

anyone they must be one hundred percent certain that the

person they were identifying was the person who robbed

them. Braverman immediately selected Wilson's photograph

as representing the robber. Druce studied the array for

about two minutes, indicating no recognition, andfinally

concluded that he could not say with certainty that he

recognized the robber among them.

Russo testified that he does not remember whether he

knew Wilson's height and weight when he applied for the

warrant. When questioned during deposition about whether

he knew Wilson's actual height and weight, he said"Well,

it'd probably be on the driver's license abstract because I

obtained that actually just for his address." In his response

to Russo's summary judgment motion, Wilson made the

uncontroverted assertion that this information is on the

driver's abstract.

B. The Arrest Warrant Application, Arrest, and

Initiation of Suit

Russo met with a prosecutor and reviewed the facts

before the two of them sought a search warrant from

Superior Court Judge Dilts. Through his responses to the

questions of the prosecutor, Russo informed Judge Dilts

that two witnesses had described the robber as a light

skinned black male "six-three to six-five." He did not tell

him that Wilson's driver's abstract stated that he was 5'11",

or that his criminal history report stated that he was 5'10".

Russo also represented that he had created a photographic

array "as a result of the physical descriptions." This is

contrary to what the record indicates, which is that those

making the photo array had the photograph of Wilson, but

were never told of the victims' descriptions of the robber. He

told the judge that the owner of the florist shop

unequivocally picked Wilson out of a photo lineup. He did

not tell him that the other witness had failed to identify

6

Wilson as the robber when shown the same photo array.

Russo stated that an employee of a nearby dentist's office

who recognized Wilson had seen him around three o'clock.

He did not inform the judge that she had stated that she

saw Wilson around 3:30, by which time the robber was

already in the shop.

We also note that Russo answered the prosecutor's

questions as if he had been there himself, suggesting that

he had been the primary investigator and interviewer at the

scene of the crime. He did not tell the judge that, in the

photo array, Wilson looked ethnically different from the

others.2 Russo also did not inform the judge that height

and weight were not indicated on the photo lineup.

On the basis of Russo's testimony, Judge Dilts issued a

warrant of arrest and to search for evidence. Russo

executed the warrant the evening of February 6. Wilson was

incarcerated for a month, after which the Somerset Grand

Jury refused to indict him. Thereafter, he brought this suit

against Russo, Woroniecki, and the Franklin Township

Police Department under 42 U.S.C. S 1983, alleging that his

Fourth, Fourteenth, and Fifth Amendment rights were

violated, as well as his rights under the New Jersey

Constitution, and the New Jersey common law. The

defendants moved for summary judgment, and the District

Court granted the motion.3 Wilson appealed.

_________________________________________________________________

2. We note this omission not because we think there was a marked

difference in appearance, but because Wilson's briefs focus on it. As we

discuss infra, our independent review of the photographic array satisfies

us that although Wilson has slightly different features than the other

five

faces pictured, no reasonable jury could find that the difference was

significant or prejudicial.

3. The District Court did not address the officers' motion for summary

judgment on the state law claims in its decision. Therefore, although we

will affirm the grant of summary judgment on the federal claims, we will

remand to the District Court so that it may evaluate the state claims and

determine whether or not to retain jurisdiction of them under 28 U.S.C.

S 1367(c).

7

II. The Right to Be Free of Unlawful Arrest

To recover under 42 U.S.C. S 1983, Wilson must

establish that a state actor engaged in conduct that

deprived him of "rights, privileges, or immunities" secured

by the constitution or laws of the United States. See Kneipp

v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Because

Russo has fairly raised a qualified immunity defense,

Wilson has a further burden. According to the doctrine of

qualified immunity, law enforcement officers acting within

their professional capacity are generally immune from trial

"insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known." Wilson v. Layne, 119 S.Ct.

1692, 1699 (1999) (quoting Harlow v. Fitzgerald , 457 U.S.

800, 818 (1982)).

The qualified immunity defense requires that we engage

in a two-step analysis. First, we must "determine whether

the plaintiff has alleged the deprivation of an actual

constitutional right at all." Conn v. Gabbert , 119 S. Ct.

1292, 1295 (1999). Only if he has should we "proceed to

determine whether that right was clearly established at the

time of the alleged violation." Id. Summary judgment is

appropriate if no reasonable juror could conclude that

Wilson's clearly established rights were violated. See Orsatti

v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995).

This does not mean that the jury determines the

contours of the right. Rather, after making a legal

determination about the existence of a right, and whether

it is clearly established, we determine whether the facts on

the record are such that a jury could conclude that the

clearly established right was violated. See id. As a

methodological matter, we commonly work backwards: We

arrange the facts in the light most favorable to the plaintiff,

and then determine whether, given precedent, those"facts,"

if true, would constitute a deprivation of a right. And then,

if necessary, we determine if the right is clearly established.

In this case, since we conclude that Wilson has not

adduced facts from which a jury could conclude that his

constitutional rights were deprived at all, we need not

engage in the second inquiry.

8

Wilson contends that he was arrested without probable

cause in violation of his Fourth Amendment right to be free

from unreasonable seizure. He acknowledges that he was

arrested pursuant to a warrant, but claims that the

warrant was not supported by probable cause. However,

the statements given to Judge Dilts by Officer Russo clearly

establish probable cause: He was told that a robbery had

taken place; that the descriptions of the victims were used

to compile a photo array; that one of the victims had

quickly and positively identified the suspect from the photo

array; and that an employee in a nearby establishment had

seen Wilson in the vicinity near the time he supposedly

entered the flower shop. See infra Section I.B.

In light of these facts, the only way that Wilson can

succeed is if he proffers evidence that Russo recklessly

disregarded the truth in his warrant application, and that

a warrant application based on what Russo should have

told the judge would have lacked probable cause. As this

recitation suggests, an arrest warrant issued by a

magistrate or judge does not, in itself, shelter an officer

from liability for false arrest. See Sherwood v. Mulvihill, 113

F.3d 396, 399 (3d Cir. 1997). Rather, a plaintiff may

succeed in a S 1983 action for false arrest made pursuant

to a warrant if the plaintiff shows, by a preponderance of

the evidence: (1) that the police officer "knowingly and

deliberately, or with a reckless disregard for the truth,

made false statements or omissions that create a falsehood

in applying for a warrant;" and (2) that "such statements or

omissions are material, or necessary, to the finding of

probable cause." Id.4

A. Reckless Disregard for the Truth

With these precepts in view, we must first consider

whether Wilson adduced sufficient evidence that a

_________________________________________________________________

4. Wilson argues that because a jury could conclude that Russo lied,

Russo loses the protection of qualified immunity regardless of the import

of the lie. Adopting his argument would not affect the result in this case

because we ultimately conclude that even if Russo had been perfectly

straightforward in his warrant application, there would have been

probable cause to arrest Wilson.

9

reasonable jury could conclude that Russo made

statements or omissions that he "knew [were] false, or

would have known [were] false except for his reckless

disregard for the truth." United States v. Leon, 468 U.S.

897, 923 (1984); cf. Franks v. Delaware, 438 U.S. 154

(1978). In Franks, the Court held that where a defendant

showed by the preponderance of the evidence that a false

statement necessary to the finding of probable cause was

made "knowingly and intentionally, or with reckless

disregard for the truth," the constitution requires that any

evidence derived from the exercise of that warrant had be

excluded from a criminal trial. Id. at 155. But as the Court

of Appeals for the District of Columbia Circuit has

lamented, "[u]nfortunately, the Supreme Court in Franks

gave no guidance concerning what constitutes a reckless

disregard for the truth in fourth amendment cases, except

to state that `negligence or innocent mistake[is]

insufficient.' " United States v. Davis , 617 F.2d 677, 694

(D.C. Cir. 1979) (quoting Franks, 438 U.S. at 171). This

case, with its hybrid allegation (Russo purportedly doctored

some facts and failed to inform the judge of others) requires

us to acknowledge that reckless disregard for the truth

means different things when dealing with omissions and

assertions, and to explain the different methodologies for

dealing with each.

1. Omissions

All storytelling involves an element of selectivity. We

cannot demand that police officers relate the entire history

of events leading up to a warrant application with every

potentially evocative detail that would interest a novelist or

gossip (". . . the witness blushed when I mentioned the gun,

and blinked six times while studying the photographic

array. I noticed his hand crept up to his lips (which were

chapped) . . ."). On the other hand, one of the reasons for

requiring a neutral magistrate to evaluate probable cause is

that an uninterested party is presumably better suited to

review and evaluate the facts than an officer pursuing a

lead. "The point of the Fourth Amendment, which often is

not grasped by zealous officers, is not that it denies law

enforcement the support of the usual inferences which

10

reasonable men draw from evidence. Its protection consists

in requiring that those inferences be drawn by a neutral

and detached magistrate instead of being judged by the

officer engaged in the often competitive enterprise of

ferreting out crime." Johnson v. United States, 333 U.S. 10,

13-14 (1948) (cited in Payton v. New York, 445 U.S. 573,

586 n.24 (1980)). It follows that a police officer cannot

make unilateral decisions about the materiality of

information, or, after satisfying him- or herself that

probable cause exists, merely inform the magistrate or

judge of inculpatory evidence.

Recognizing the tension between the extreme models that

could arise if either of these competing concerns were taken

alone--requiring a police officer to tell all, and permitting a

police officer to independently determine materiality--we

follow the common sense approach of the Court of Appeals

for the Eighth Circuit and hold that omissions are made

with reckless disregard if an officer withholds a fact in his

ken that "[a]ny reasonable person would have known that

this was the kind of thing the judge would wish to know."

United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.

1993). In Jacobs, the court concluded that the officer acted

with reckless disregard when he told the magistrate that a

drug sniffing dog showed "interest" in the bag of the

defendant but failed to inform the magistrate that it had

not gone into "alert." Id. at 1234."Because of the highly

relevant nature of the omitted information," the court held

that "the omission occurred at least with reckless disregard

of its effect upon the affidavit." Id.

Russo alleges that Wilson made the following omissions

in his warrant application: (1) he did not tell the judge that

although Officer Lipp's investigative report stated that the

robber was between 6'3" and 6'5", Wilson's driver's abstract

indicated that he was 5'11"; (2) he did not tell the judge

that Druce did not pick Wilson out of an array; (3) he did

not tell the judge that in the photo array, Wilson looked

ethnically different from the others; and (4) he did not

mention that height and weight were not indicated on the

photo array.

Applying the test adopted above, we address these

contentions in turn. Any reasonable person would know

11

that the significant height differential, and the fact that an

eyewitness-victim did not identify Wilson, were"the kind of

thing[s] the judge would wish to know." Jacobs, 986 F.2d at

1235. On the other hand, we do not believe that an officer

can be expected to communicate the apparent ethnicity of

the victim, or slight variations in appearance on the

photographic line-up absent circumstances making these

factors more important or prejudicial. Finally, the fact that

height and weight were not listed on the photo array is so

routine as to be unremarkable to a judge. Although these

latter facts could be used for impeachment at trial, a police

officer cannot be expected to present a judge with complete

background.

2. Assertions

Unlike omissions, assertions can be made with reckless

disregard for the truth even if they involve minor details--

recklessness is measured not by the relevance of the

information, but the demonstration of willingness to

affirmatively distort truth. In applying the reckless

disregard test to assertions, we have borrowed from the free

speech arena and equated reckless disregard for the truth

with a "high degree of awareness of [the statements']

probable falsity." Lippay v. Christos, 996 F.2d 1490, 1501

(3d Cir. 1993) (quoting Garrison v. Louisiana , 379 U.S. 64,

74 (1964)); see also United States v. Clapp, 46 F.3d 795,

800 (8th Cir. 1995) (reckless disregard for the truth is

exhibited when expressing that which was not "believed or

appropriately accepted" as true). An assertion is made with

reckless disregard when "viewing all the evidence, the

affiant must have entertained serious doubts as to the

truth of his statements or had obvious reasons to doubt the

accuracy of the information he reported." Clapp, 46 F.3d at

801 n.6.

Applying these tests to this case, Russo had reasons to

"doubt the accuracy" of his intimation that he had

personally investigated the entire case and interviewed the

witnesses after the robbery. More importantly, a jury could

conclude that Russo "must have entertained serious doubts

about the truth of his statement" that the dental worker

had seen Wilson around 3:00, instead of around 3:30.

12

Because he told the judge about DaVila's identification,

Russo must have learned of DaVila's statement from

somewhere; a jury could infer that he learned of it from the

transcript of DaVila's statement or a complete report, either

of which would include her statement that she saw Wilson

about a half an hour before the police arrived, which would

place her sighting at about 3:30. If Russo knew of the time

difference, he had "obvious reasons to doubt" his assertion

to the judge that a witness saw Wilson around 3:00.

As to the other information from the other officers'

reports, Wilson did not adduce any evidence that Russo

would have examined these reports as a matter of course or

policy, or any evidence from which a jury could infer

knowledge of their content. Moreover, there is no evidence

that Russo knew that the array was developed from

Wilson's photo alone. Therefore, a jury could not conclude

that his representation that the array was made"as a

result of the physical descriptions" was made with reckless

disregard of the truth.5

B. Materiality

Since there was sufficient evidence of omissions and

assertions made knowingly, or with reckless disregard for

the truth, we turn to the next step of the reconstructive

surgery required by our jurisprudence, and assess whether

the statements and omissions made with reckless disregard

of the truth were "material, or necessary, to thefinding of

probable cause." Sherwood, 113 F.3d at 399.6 To determine

_________________________________________________________________

5. Wilson also attempts to inject a due process argument into what is

primarily a fourth amendment claim, arguing that the officers were

negligent in their investigation. However, negligence by public officials

is

not actionable as a due process deprivation of a civil right. See Orsatti

v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995) ("[T]he issue

is not whether the information on which police officers base their request

for an arrest warrant resulted from a professionally executed

investigation; rather, the issue is whether that information would

warrant a reasonable person to believe that an offense has been or is

being committed by the person to be arrested."); see also Daniels v.

Williams, 474 U.S. 327 (1986); Colburn v. Upper Darby Township, 946

F.2d 1017 (3d Cir. 1991)).

6. Wilson submits that even if the statements are not material, he should

at least get nominal damages for Russo's failure to provide the judge

13

the materiality of the misstatements and omissions, we

excise the offending inaccuracies and insert the facts

recklessly omitted, and then determine whether or not the

"corrected" warrant affidavit would establish probable

cause. See Sherwood, 113 F.3d at 400. If it does, the grant

of summary judgment should be affirmed, for even if there

had not been omissions and misrepresentations in Russo's

presentation to Judge Dilts, Wilson would have been

arrested.

Probable cause exists if there is a "fair probability" that

the person committed the crime at issue. See Sherwood,

113 F.3d at 401. "Probable cause to arrest exists when the

facts and circumstances within the arresting officer's

knowledge are sufficient in themselves to warrant a

reasonable person to believe that an offense has been or is

being committed by the person to be arrested." Orsatti, 71

F.3d at 483. A police officer may be liable for civil damages

for an arrest if "no reasonable competent officer" would

conclude that probable cause exists. Malley v. Briggs, 475

U.S. 335, 341 (1986).

_________________________________________________________________

with exculpatory information. He relies on the Supreme Court's decision

in Carey v. Piphus, 435 U.S. 247, 266 (1978), which stated that a

violation of procedural due process was actionable without a need to

prove actual injury, or actual damages. See also Smith v. Chicago, 913

F.2d 469, 472-73 (7th Cir. 1990). In Smith, the court held that actual

damages for improvident police work leading to arrest was inappropriate

because probable cause existed, so that no actual harm flowed from the

recklessness, but allowed the award of nominal damages of $1 for the

due process violation. See also Sutton v. Board of Education, 958 F.2d

1339, 1352 (6th Cir. 1992) ("The denial of procedural due process is

actionable for nominal damages without proof of actual injury."). On the

strength of these cases, Wilson argues that Russo's omissions and

fabrications are a harm independent of the injury of arrest. Although we

find the argument interesting, we would not address it today even if we

found its requirements met, because it was not raised in the complaint,

at the district court level, or even in the opening briefs on appeal.

Harris

v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994) (issues raised

for

the first time on appeal will not be considered). It was articulated for

the

first time in supplemental letter memoranda sent to the court less than

a month before oral argument.

14

The defendants maintain that a positive identification by

a victim is sufficient by itself to establish probable cause

that the identified party was the offender. While we agree

that a positive identification by a victim witness, without

more, would usually be sufficient to establish probable

cause, this qualified precept cannot be rendered absolute.

Independent exculpatory evidence or substantial evidence

of the witness's own unreliability that is known by the

arresting officers could outweigh the identification such

that probable cause would not exist. Each case must

therefore be examined on its facts.

For example, if two identifying witnesses had told the

officer that the robber was 7', and the officer knew that the

person in the photograph was 5', the positive identification

would not be enough. Likewise, 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. Or, if Druce had,

equally firmly, picked another person from the photo array,

Braverman's identification might not have been sufficient

for Russo to conclude that Wilson "probably" committed the

crime. "An officer contemplating an arrest is not free to

disregard plainly exculpatory evidence, even if substantial

inculpatory evidence (standing by itself) suggests that

probable cause exists." Kuehl v. Burtis, 173 F.3d 646, 650

(8th Cir. 1999).7

_________________________________________________________________

7. We recognize that the Seventh Circuit has used language suggesting

that exculpatory evidence or evidence of unreliability is totally

irrelevant.

See Tangwall v. Stuckey, 135 F.3d 510 (7th Cir. 1998). In Tangwall, a

woman who had been raped called the police because she said she was

convinced that a man that she had been observing for some time in the

restaurant in which she worked was her attacker. She had previously

described her attacker differently; the man in the restaurant was slightly

older, heavier, taller, and had a different color hair and eyes than her

original description. There was no corroborating evidence or independent

exculpatory evidence. The court concluded that the officers had qualified

immunity in that case, stating along the way that"the alleged

discrepancies between Smith's original description of her attacker and

Tangwall's appearance on the evening of his arrest do not affect our

inquiry into whether Detective Stuckey's actions were objectively

15

The cases that the defendants cite for their argument fall

into two basic camps: (1) those in which there was no

exculpatory evidence or evidence of witness unreliability,

such as United States v. Harris, 956 F.2d 177, 180 (8th Cir.

1992); and (2) those in which the court concluded that a

positive identification was not fatally undermined by

unreliability or exculpatory evidence, such as Sharrar v.

Felsing, 128 F.3d 810 (3d Cir. 1993) and Lallemand v.

University of Rhode Island, 9 F.3d 214 (1st Cir. 1993). The

first class of cases is inapposite here. Looking at the second

class of cases, we find that courts have consistently

considered the context of an identification, and have not

stated that police can rely on any witness accusation,

however unreliable or unbelievable.

For example, in Sharrar we affirmed the principle that

"[w]hen a police officer has received a reliable identification

by a victim of his or her attacker, the police have probable

cause." 128 F.3d at 818 (emphasis added). We concluded in

that case that when the witness initially gave one name,

but then identified her husband as her attacker, it was

_________________________________________________________________

reasonable in light of clearly established law." Id. at 517 (emphasis

added). Although we would have no reason to take issue with the court's

ultimate disposal of that case on its facts, especially given the

relatively

minor nature of the discrepancies, we find this statement overbroad, in

that it appears to treat identifications as unimpeachable, and conflicts

not only with the cases and language cited in the same section of the

opinion, see id. at 516 (citing United States v. Decoteau, 932 F.2d 1205,

1207 (7th Cir. 1991) for the proposition that "once a putative victim . .

.

has positively identified her attacker to the police and they have no

reason to disbelieve her, the officers `need not take any additional steps

to corroborate the information regarding the crime before taking

action.' ") (emphasis altered)), but with suggestions in the case itself,

in

which the court went out of its way to discuss reasons to discount

discrepancies in part because of the special circumstance of rape. See id.

at n.11. Therefore, we are unwilling to follow the reading of that case

urged by the defendants. We are also skeptical that the Seventh Circuit

would adopt such a sweeping interpretation and consider there to be

probable cause to arrest someone identified as the assailant if the police

officers were aware that the victim, like the boy who cried wolf, had

previously firmly identified several different people as her attacker and

repeatedly called the police demanding that they be arrested.

16

reasonable for the officer to "assess Gannon's demeanor,

find her story credible, and rely on her subsequent

identification of her husband as the attacker" in part

because it was a domestic violence case. Id. Likewise, in

Lallemand, the First Circuit concluded that discrepancies in

a victim's description were "trivial, given their nature" and

in light of the positive identification, clearly implying that

non-trivial discrepancies, or external evidence powerfully

undermining the reliability of the witness's identification,

might translate into a finding that there was no probable

cause. 9 F.3d at 217.8 We reject the rule suggested by the

defendants and engage in the routine probable cause

analysis, weighing the inculpatory evidence against any

exculpatory evidence available to the officer.

The strongest inculpatory evidence is clearly the positive

identification. Braverman had considerable opportunity to

view the robber at the scene of the crime, and she exhibited

a high level of certainty. There were three days between the

crime and identification, so while it was not an entirely

fresh identification, not so much time had passed as to call

into question her recollection. Granted, Braverman's

testimony should be viewed with some skepticism because

her identification of Wilson was inherently incompatible

with her description of the robber--according to the

information available to Russo (Lipp's report), Braverman

(and/or her coworker) originally described the robber as

between 6'3" and 6'5". Although she did not know it, in

identifying Wilson she identified someone much shorter.

Both of these identifications cannot be correct. However,

_________________________________________________________________

8. As in this case, Lallemand involved, among other things, a discrepancy

in height. The victim initially described her attacker as 6', while

Lallemand is 6'7". But later the victim told the police that her attacker

was "much taller" than a police officer who was over 6', 9 F.3d at 215

n.1, and no other witness (like Druce) had indicated his height, and the

court acknowledged no independent exculpatory evidence. We do not

disagree with the result, but think it was a simpler case. More

importantly, we note that it did not apply a per se rule; on the contrary,

it carefully examined the facts available to the officer that might be

deemed to undercut the victim's credibility, such as her intoxication, and

concluded that her identification was still reliable and probable cause

existed even when these facts were taken into account.

17

this indication of unreliability does not, from the vantage

point of the arresting officer, fatally undermine the forceful

positive identification. Added to this identification is the

fact that DaVila testified that she saw Wilson in the vicinity

near the time of the theft.

On the other hand, there are three exculpatory facts that

Russo should have mentioned: (1) the robber was originally

identified as someone 6'3" to 6'5", while Wilson is four to

seven inches shorter;9 (2) one of the two victim-witness with

ample opportunity to view the robber failed to identify

Wilson when shown a photo array; and (3) DaVila saw

Wilson out in the shopping center when he was supposedly

in the flower shop. But these exculpatory facts, when

weighed against the inculpatory facts, are not strong

enough to undermine a finding of probable cause. Thus, we

conclude that the District Court correctly found that no

reasonable jury could find facts that would lead to the

conclusion that Wilson's "corrected" warrant lacked

probable cause. Therefore, we do not have to reach the

second prong of the qualified immunity investigation, that

is, whether the right was clearly established.

In sum, we conclude that the District Court correctly

concluded that Russo did not violate Wilson's constitutional

right to be free of unlawful arrest. Therefore, we affirm the

grant of summary judgment on qualified immunity

grounds.

III. Continued Incarceration

Wilson contends that even if he was properly arrested in

the first instance, he was kept in jail in violation of his

rights because Russo learned of exculpatory facts after the

arrest which should have motivated him to try to release

Wilson. On February 7, Russo interviewed Wilson's friend

_________________________________________________________________

9. The dissent notes that both Braverman and Druce described the

robber in terms of his notable height, citing to Druce's several

statements about how "very tall" the intruder was. However, while the

report available to Russo stated that the robber wasbetween 6'3" and

6'5", there is no record evidence from which a jury could concludethat

Braverman's and Druce's more detailed impressions were passed on to

Russo.

18

George Richardson, who told Russo that Wilson had spent

February 3 in his company. He told him that Wilson wore

blue jeans, tan work boots, a beige sweatshirt and a brown

jacket that day. He said that they had gone to the Towne

Center, where Wilson went to get a lemonade at the pizza

parlor while Richardson went to the bank. As evidence of

his veracity, Richardson gave Russo a bank slip with 3:38

stamped on it. Russo testified that he visited the bank and

looked at the films from the bank's surveillance camera to

look for Richardson, but that he could not recall what he

saw and could not recall if the employees remembered

Richardson.10

Wilson contends that Russo's post-arrest interview with

Richardson provided exculpatory information that

dissipated probable cause, and that Russo had a

constitutional duty to inform the prosecutor of the interview

and attempt to get Wilson released. The law in this area is

not entirely settled. Compare Brady v. Dill, 187 F.3d 104,

112 (1st Cir. 1999) (concluding that police officers generally

have no duty to try to release suspects when exculpatory

information comes into their possession after a lawful

arrest), with id. at 117-125 (Pollak, J., concurring)

(proposing a rule by which "[a]n affirmative duty to release

arises . . . if an arresting or custodial officer ascertains

beyond a reasonable doubt that the suspicion (probable

cause) which forms the basis for the privilege of arrest is

unfounded."). See also Sanders v. English, 950 F.2d 1152,

1162 (5th Cir. 1992) ("[F]ailure to disclose . . . undeniably

credible and patently exculpatory evidence to the

prosecuting attorney's office plainly exposes[defendant

police officer] to liability under S 1983."); BeVier v. Hucal,

806 F.2d 123, 128 (7th Cir. 1986) ("The continuation of

even a lawful arrest violates the Fourth Amendment when

the police discover additional facts dissipating their earlier

probable cause.").

We do not, today, need to decide these difficult issues.

_________________________________________________________________

10. Russo also eventually interviewed the woman who had been in the

flower shop on a bridal order. When shown the same photo array that

Russo showed Braverman and Druce, she identified Wilson as the man

who had been in the shop with her.

19

Regardless of the existence and scope of an officer's duty to

seek to release a suspect when probable cause no longer

exists, or the level of knowledge that he or she must have

in order to trigger that duty, the interview with Richardson

clearly did not dispel the earlier probable cause. 11 A friend

of Wilson gave Wilson a partial alibi, and his description of

Wilson's clothing did not match the victims' descriptions,

but he placed Wilson in the vicinity at the time of the

robbery, and nothing he said overwhelmed the fact of

Braverman's positive identification. In short, no reasonable

jury could conclude that this evidence dispelled probable

cause.

For the foregoing reasons, the grant of summary

judgment will be affirmed as to the federal claims. The case

will be remanded to the District Court for consideration of

the state claims.

_________________________________________________________________

11. We also reject Wilson's suggestion that he has a due process claim

because Russo should have done a better job of post-arrest investigation.

As the Supreme Court stated in Baker v. McCollan , 443 U.S. 137, 145-

146 (1979):

[W]e do not think a sheriff executing an arrest warrant is

required

by the Constitution to investigate independently every claim of

innocence, whether the claim is based on mistaken identity or a

defense such as lack of requisite intent. Nor is the official

charged

with maintaining custody of the accused named in the warrant

required by the Constitution to perform an error-free

investigation of

such a claim.

20

GARTH, Circuit Judge, concurring:

I agree that the District Court's decision granting

summary judgment to the defendants must be affirmed.1 I

write separately, however, because I take issue with the

majority opinion's equivocal "probable cause" analysis as it

relates to eyewitness identification. See Majority Op., Part

II-B.

Despite recognizing the argument "that a positive

identification by a victim is sufficient by itself to establish

probable cause that the identified party was the offender,"

id. at 15, the majority opinion insists upon adopting a

"weighing" principle that forces us to weigh"exculpatory"

facts against "inculpatory" facts. See id. at 17-18. By doing

so, the majority has misinterpreted and placed much

emphasis on the reliability factor that the Supreme Court

has held to be a necessary part of our Fourth Amendment

analysis, see Illinois v. Gates, 462 U.S. 213, 230 (1983).

In probable cause analysis, it is the reliability of the

witness (or victim) who has provided an identification of the

assailant that is the focal point of the inquiry. It is not the

reliability of the evidence provided in tandem with that

individual's identification, which may be inconsistent with

such an identification. As a result, the majority confuses a

lack of reliability in an eyewitness with evidence that, at

most, tends to exculpate the identified individual of

wrongdoing and therefore simply is inconsistent with the

victim's identification. Inconsistent or contradictory

evidence may cut against a putative defendant's guilt at

trial, but it cannot render invalid -- i.e., eliminate the

probable cause necessary to obtain an arrest warrant-- a

positive identification by an eyewitness who either a police

officer or magistrate deemed to be reliable.

Reliability in this context obviously means an eyewitness

who is neither mentally impaired or delusional. See Jones

v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988)

(stating that as long as the identifying victim eyewitness is

_________________________________________________________________

1. I further agree that because the District Court failed to address

Wilson's state law claims, a remand is appropriate for this limited

purpose.

21

"lucid," probable cause exists to arrest the identified

individual). For instance, if the victim eyewitness were to

show signs of insanity or other forms of mental instability,

the reliability of that eyewitness would, in my view,

justifiably be called into question. Statements during the

identification process such as "That's the assailant! I'd

know Abe Lincoln anywhere!" or "I believe that this is the

thief, because he had three heads!" would signal such

reliability concerns. Thus, it is the witness's reliability that

is at the core of our probable cause determination, not the

reliability of the individual's identification, as required by

the majority opinion's formula, which weighs exculpatory

against inculpatory evidence. Majority Op., at 17-18.

Accordingly, I part company with the majority opinion at

the point where the majority seeks to distort the probable

cause analysis to the point of virtually requiring trial-type

proof at the very threshold stage of criminal investigation.2

My thesis is simple and in accord with the prevailing

jurisprudence. Once law enforcement officers have obtained

a positive identification from a reliable witness, then,

without more, probable cause exists to justify the arrest of

the identified individual. As the Seventh Circuit has stated,

"once a putative victim . . . has positively identified her

attacker to the police and they have no reason to disbelieve

her, the officers `need not take any additional steps to

corroborate the information regarding the crime before

taking action.' " Tangwall v. Stuckey, 135 F.3d 510, 516

(7th Cir. 1988) (quoting United States v. Decoteau, 932 F.2d

1205, 1207 (7th Cir. 1991)); see also Jones, 856 F.2d at

994.

Decisions from both this circuit and our sister circuits

validate my interpretation of this interplay between the

Fourth Amendment's probable cause requirement and

victim eyewitness identifications, especially as they impact

on the facts presented in this case. See Sharrar v. Felsing,

128 F.3d 810 (3d Cir. 1997); Tangwell v. Stuckey , 135 F.3d

510 (3d Cir. 1998); Lallemand v. University of Rhode Island,

_________________________________________________________________

2. As the Supreme Court has stated, the standard for "probable cause

does not demand the certainty we associate with formal trials." Illinois

v.

Gates, 462 U.S. 213, 246 (1983).

22

9 F.3d 214 (3d Cir. 1993); Greene v. City of Philadelphia,

No. CIV. A. 97-4264, 1998 WL 254062 (E.D. Pa. May 8,

1998).

Specifically, in Sharrar v. Felsing, 128 F.3d 810 (3d Cir.

1997), a woman telephoned 911 to report that she had

been assaulted. See id. at 814. When the 911 operator

asked the woman to identify the individual who had

committed the assault, she immediately responded with the

name Robert Carroll. See id. Once the police arrived,

however, the woman had altered her story, and now alleged

that her husband -- David Brigden -- was the assailant.

See id. The police arrested Brigden, but after all charges

against him had been dismissed, Bridgen brought a section

1983 action against the police, alleging that they lacked the

probable cause to arrest him. See id. at 816-17. In

particular, Brigden argued that his wife's earlier

identification of Carroll as her attacker so impaired her

reliability as to abrogate any finding of probable cause. See

id. at 818.

We soundly rejected this argument, holding that law

enforcement officers (or, presumably, a magistrate) need

not carefully scrutinize an identification or other

information provided by a victim of an alleged offense as

they would with other informants. See id. at 818 (quoting

Easton v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir.

1985)). Most importantly, however, the Sharrar panel held

that "[w]hen a police officer has received a reliable

identification by a victim of his or her attacker, the police

have probable cause." Id. (citing Torchinsky v. Siwinski, 942

F.2d 257, 262 (4th Cir. 1991); Grimm v. Churchill, 932 F.2d

674, 675 (7th Cir. 1991)); see also Greene v. City of

Philadelphia, No. CIV. A. 97-4264, 1998 WL 254062, at *7

(E.D. Pa. May 8, 1998) ("The principle that probable cause

may be based on a single and reasonably reliable

eyewitness identification, even though the identification

may be tarnished by discrepancies in the witnesses'

description of the perpetrator, is well-established."). By

affirming the district court's finding of probable cause to

arrest Bridgen, the panel in Sharrar implicitly stated that a

victim's proffer of two different identifications for his or her

attacker by name does not undermine the eyewitness's

23

reliability enough to eliminate probable cause to arrest. Any

reading of the Sharrar opinion has to lead to the conclusion

that it is the reliability of the eyewitness that is relevant

and essential to the probable cause analysis, not the

weighing process through which the majority attempts to

modify our jurisprudence.3

Sharrar's application to the present matter is striking.

Within a matter of hours, the alleged victim in Sharrar

provided the police with two different names for her

assailant. Even in the face of this blatant inconsistency, the

Sharrar court -- our court -- held that the purported

victim's positive identification was sufficient to give rise to

probable cause.

To the contrary, the inconsistencies presented here are

much less extreme. The only evidence that arguably can be

considered inconsistent with Braverman's photo

identification of Wilson was her earlier description of the

assailant's height and Druce's inability to identify the

assailant when presented with the same photo array.

Merely providing a height range that is inconsistent with

that of the individual identified does much less to question

an eyewitness' reliability than does providing two different

names of two different individuals within a span of hours.

As such, any reading of our decision in Sharrar -- to which

this panel is, of course, bound -- must lead to the

conclusion that Braverman's identification of Wilson,

without more, was sufficient to give rise to probable cause.

Even more persuasive, and nearly identical on a factual

level, however, is Lallemand v. University of Rhode Island,

9 F.3d 214 (1st Cir. 1993). In Lallemand, a university

student alleged that she had been raped, and during a

medical exam, stated that her assailant was a fraternity

pledge named "Dan," who was around six feet tall with

blond hair. See id. at 214-15. During the ensuing police

_________________________________________________________________

3. The majority cites the Eighth Circuit's opinion in Kuehl v. Burtis, 173

F.3d 646 (8th Cir. 1999), as support for this weighing process. The facts

in Kuehl, however, do not concern eyewitness identification, and as such,

render Kuehl completely inapplicable to the issue of the sufficiency of an

eyewitness identification -- the probable cause determination presented

in the instant case.

24

investigation, law enforcement officers showed the student

photographs of each of the pledges from the fraternity at

which the student claimed to have been assaulted. See id.

at 215. Faced with these photos, the student "positively and

without hesitation" identified, as her assailant, an

individual named "David," who stood 6'7", and did not have

blond hair. Id. at 215 & n.1. Notwithstanding these

discrepancies, the First Circuit held that probable cause

existed for "David's" arrest. See id. at 216-17. Indeed, the

Lallemand court went so far as to state that"[t]he

discrepancies concerning the assailant's first name, hair

style, dormitory and height are trivial, given their nature

and the positive identification." Id. at 217 (emphasis

added); see also Tangwall, 135 F.3d at 516 ("The

identification itself establishes probable cause to make an

arrest, even where other witnesses' descriptions of the

alleged perpetrator differ from the physical appearance of

the individual so identified.").

Given the factual similarities presented between

Lallemand and the instant matter, and our own court's

acceptance -- in Sharrar -- of the constitutional premise

underlying the First Circuit's persuasive holding in

Lallemand, the equivocal and therefore improper and

erroneous nature of the majority's probable cause analysis

becomes clear.

In all other respects, however, I concur in the majority's

analysis and its ultimate result.

25

POLLAK, District Judge, concurring in part and dissenting in

part

I agree with virtually all of the opinion of the court. With

respect to the legal standards announced by the court, I

join the court's opinion without reservation. Where I part

company with the opinion is in the court's application of its

correct summary judgment standard to the facts in this

case. In my view, the question whether the " `corrected'

warrant" application (i.e., the warrant application as it

would have been, had it been amended to cure officer

Russo's omissions and misstatement) established probable

cause for Wilson's arrest is one that should be reserved for

the finder of fact.1

A.

In a portion of the opinion of the court with which I do

not take issue, the court determines that "[a]ny reasonable

person would know that the significant height differential,

and the fact that an eye-witness did not identify Wilson,

were the kind of things the judge would wish to know."

Supra p. 11-12 (quotation omitted). The court is surely

correct in this conclusion. Like Braverman, Druce had

ample opportunity to view the robber in the store, so his

failure to identify the robber in the lineup is undoubtedly a

significant fact. Braverman's and Druce's descriptions of

the robber's height are at least as significant for these

purposes. Braverman described the robber as "very tall"

and estimated his height as between 6'2" and 6'4". Druce

also described the robber as "very tall," guessing his height

to be "about 6'5" tall, maybe a little bit taller." Indeed, the

statements of Braverman and Druce reveal that they were

very attentive to the robber's height. Druce, for instance,

stated that while the robber was not someone he had seen

before, "it would be someone I'd remember because of the

height of him, he's very tall that's the first thing I said to

Renee, `He's tall, he's very tall.' "

_________________________________________________________________

1. I agree with the court that summary judgment was properly granted

in favor of officer Woroniecki for the reasons discussed by the court,

supra p. 3-4 note 1.

26

For purposes of identification of a suspect, the

significance of the difference in height between Wilson and

the man described by Druce and Braverman may be even

greater than is suggested by the court's statement that

Wilson was "four to seven inches shorter" than the robber

described in the police report. Supra p. 18. Both Druce and

Braverman were quite clear that they viewed the robber as

an exceptionally tall man. And while estimates of height

may well be off by a few inches in either direction, it would

be remarkable if someone who had had nearly an hour to

observe a person of average height--as Wilson is--would

describe that person as being exceptionally tall. And, of

course, it would be that much more remarkable if two such

observers made the same mistake. Thus, the height

discrepancy was clearly a fact that a reasonable officer

would expect a judge to want to know. It follows that

knowingly omitting such information in the context of a

warrant application would amount to reckless disregard for

the truth, as the court has concluded. Similarly, the fact

that Druce failed to identify Wilson was information that a

judicial officer would be expected to want to know. And,

finally, I agree with the court that Russo's statement to the

judge about the timing of DaVila's seeing Wilson in the

parking lot constituted reckless disregard for the truth.

The court follows these conclusions with a discussion of

the materiality of the omissions and misstatement,

concluding that the omissions and misstatement were not

material in the face of Braverman's positive identification.

Indeed, the court concludes that "no reasonable jury could

find facts that would lead to the conclusion that Wilson's

`corrected' warrant lacked probable cause." Supra p. 18.

That statement contains an implicit recognition of the

fact that, in the Third Circuit, it is well established that

"the existence of probable cause in a section 1983 action is

a question of fact." Sherwood v. Mulvihill , 113 F.3d 396,

401 (3d Cir. 1997); see also Groman v. Township of

Manalapan, 47 F.3d 628, 635 (3d Cir. 1995) (reversing

summary judgment as to issue of probable cause); Deary v.

Three Un-Named Police Officers, 746 F.2d 185 (3d Cir.

1984) (same); Patzig v. O'Neill, 577 F.2d 841 (1978) (holding

that the existence of probable cause in civil cases is "a

question for the jury").

27

Judge Garth, in his concurrence, argues that a positive

identification by an eyewitness deemed reliable by the

police or the judicial officer issuing the warrant is

conclusive--as a matter of law--on the question of probable

cause without regard for any extrinsic evidence that may

cast doubt on the accuracy of that identification. The court

rejects Judge Garth's submission. While it is undeniable

that a positive identification is very strong evidence in

support of a finding of probable cause--a finding that, as

Judge Garth correctly notes, is properly made on far less

evidence than that needed to establish guilt--the court's

rejection of a per se rule is surely correct. For, as the

court's hypothetical illustrations demonstrate, there may

well be cases in which the exculpatory evidence is so

overwhelming as to outweigh the inculpatory effect of a

positive identification, even for purposes of a showing of

probable cause.

It is not my view that the exculpatory evidence is so

strong in this case as to require, as a matter of law, the

conclusion that a judicial officer to whom the"corrected"

warrant application was submitted could not have found

probable cause. It is my view, however, that the present

case is within the class of cases--a class that is likely to be

a limited one where a positive identification has been

obtained--in which a factfinder might reasonably conclude

that a judicial officer assessing the "corrected" warrant

application would not have found probable cause. I say this

for the following reasons.

The court acknowledges that Braverman's identification

"should be viewed with some skepticism because her

identification of Wilson was inherently incompatible with

her description of the robber." Supra p. 17. While the court

does not undertake to quantify the level of skepticism the

court would apply, it appears that the level is not very high,

for Braverman's weakened identification, coupled with

DaVila's observation of Wilson in the vicinity, is still viewed

by the court as sufficient to support the conclusion that a

reasonable finder of fact would be required to conclude that

a judicial officer would have found probable cause,

notwithstanding other strongly exculpatory evidence:

namely, Druce's description of Wilson and his failure to

28

identify Wilson as the robber, and the fact that Wilson was

seen in the parking lot at a time when the robber was in

the flower shop. By contrast, it seems to me well within the

range of plausibility that a judicial officer assessing the

"corrected" warrant application, (1) might have viewed

Braverman's identification with very considerable

skepticism; (2) might have largely or entirely discounted

DaVila's statement, given that the time at which DaVila

said she saw Wilson in the parking lot was the very time at

which the robber was in Braverman's flower shop; and (3)

might have credited the other exculpatory evidence quite

highly. If so, the judicial officer might reasonably have

concluded that probable cause had not been established.

"But the weight that a neutral magistrate would likely have

given such information is a question for the finder of fact."

Velardi v. Walsh, 40 F.3d 569 (2d Cir. 1994). Accordingly,

so it seems to me, the District Court's grant of summary

judgment on the question of probable cause was

inappropriate.

That it would be reasonable to conclude that Russo had

not established probable cause is strongly supported by the

court's conclusion that any reasonable person would view

the omitted information as information that a judicial

officer would want to know--a conclusion that, as I have

discussed, is quite proper given the significance of that

information in the context of the present case. A judicial

officer would be expected to want to know this information

largely because such information at least had the potential

to make a difference in the determination of the existence

of probable cause. It is thus puzzling that the court appears

to conclude both (1) that it would be unreasonable to keep

the information from the judge, which would seem to

suggest that it could make a difference to a probable cause

inquiry, and (2) that it would be unreasonable to conclude

that the information would have made a difference to

probable cause. It appears that the court views the

information as potentially significant in thefirst context,

but necessarily insignificant in the second. For the reasons

discussed above, I agree with the court that the information

omitted and misstated by Russo was of substantial

significance. And, for essentially the same reasons, I also

believe that a factfinder could find that, had it been

29

supplied, the omitted and misstated information would

have had a determinative effect on the issue of probable

cause, even in the face of a positive identification.2

B.

In the previous section, I stated my agreement with the

court that Russo's misstatement and omissions were in

reckless disregard for the truth. But I have concluded, in

disagreement with the court, that a factfinder could find

that, but for the misstatement and omissions, a judicial

officer would not have issued an arrest warrant, from which

it follows that Russo's conduct could be found by a

factfinder to have deprived Wilson of a constitutional right.

The right not to be arrested on the basis of a warrant

obtained on the basis of a law enforcement officer's

representations or omissions made in reckless disregard of

the truth is a clearly established right. See Lippay v.

Christos, 996 F.2d 1490, 1504 (3d Cir. 1993) ("If a police

officer submits an affidavit containing statements he knows

to be false or would know are false if he had not recklessly

disregarded the truth, the officer obviously failed to observe

a right that was clearly established. Thus, he is not entitled

to qualified immunity.").

_________________________________________________________________

2. A fortiori, I also disagree with the court's conclusion, in section III

of

the court's opinion, that no reasonable factfinder could have found that

the additional exculpatory evidence gathered by Russo subsequent to

Wilson's arrest undermined probable cause. (As the court's opinion

notes, see supra p. 19, I have had occasion, in Brady v. Dill, 187 F.3d

104, 123 (1st Cir. 1999) (concurring), to address the further question,

which the court in the present case identifies but does not undertake to

resolve, whether an officer who acquires evidence which incontestably

establishes the innocence of a person he holds in custody is

constitutionally obligated to release that person without seeking judicial

intervention. In Brady, I was sitting as a member of a First Circuit

panel,

and my affirmative answer to the question was rejected by the panel

majority. In my view, application to the present record of either the

standard I endorsed in Brady, or that adopted by the Brady majority,

would preclude recovery on this basis. Accordingly, I do not differ with

the ultimate conclusion reached by the court; that is, that summary

judgment is appropriately affirmed with respect to plaintiff 's claim

discussed in section III of the court's opinion.)

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Accordingly, I would reverse the entry of summary

judgment in favor of Russo, and remand the case for

further proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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