Wydrick Phillips v. Jiminez Allen

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3559

W YDRICK P HILLIPS,

Plaintiff-Appellant,

v.

JIMENEZ A LLEN, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 666—Robert M. Dow, Jr., Judge.

A RGUED N OVEMBER 2, 2011—D ECIDED F EBRUARY 10, 2012

Before E ASTERBROOK, Chief Judge, and P OSNER and

W OOD , Circuit Judges.

E ASTERBROOK, Chief Judge. Ruby Graham cashed some

checks at a currency exchange and with $5,000 in her

purse drove to the public library in Bellwood, Illinois.

She was accompanied by her mother, Elizabeth Graham.

Just as Ruby stepped through the library’s door, her

purse was grabbed from behind. Ruby turned and strug-

gled with the snatcher. Elizabeth saw what was hap-

2 No. 10-3559

pening, yelled “no, no, not my baby,” and ran to give

aid. The robber shot Elizabeth in the chest, then shot

Ruby in the head, ran to the car, grabbed Elizabeth’s

purse, and fled. Elizabeth was seriously injured, but

Ruby suffered only a graze to her temple. Both were

taken to the hospital. Ruby was released after receiving

a few staples.

Ruby described the attacker to two police offi-

cers—one at the library, another at the hospital. She

did not tell either officer that she had known her assail-

ant. The day after the robbery, officer Jimenez Allen

went to Elizabeth’s hospital room to question her. Allen

found Ruby, along with James Bufkin, visiting Elizabeth.

Bufkin told Allen that he had heard a rumor that

Wydrick Phillips, who lived in the Grahams’ neighbor-

hood, had been staking out currency exchanges and

robbing people who cashed tax-refund checks (as Ruby

had done). Later that day Ruby examined photographs

at the police station to see whether she could identify

the robber. All photographs had been chosen to meet

the descriptions Ruby gave. She spent about 15 minutes

examining five or six sheets of photographs, each con-

taining six pictures (but no names). She concentrated on

the fourth sheet. She told Allen that she knew the

sixth person on the sheet but did not think him the robber.

Ruby also told Allen that the first photo on this sheet

was similar to the robber—but eventually she selected

the fifth person on this page and told Allen that she

was “sure” that he was the culprit. Ruby had selected

a photograph of Wydrick Phillips.

No. 10-3559 3

Police arrested Phillips, who was charged with robbery

and attempted murder. He was acquitted when no evi-

dence corroborated the testimony of Ruby and Elizabeth

(both of whom picked Phillips from a lineup and

identified him at trial). A search of Phillips’s home did

not turn up any proceeds or weapons; a test of the

clothing that he had been wearing on the day of the

robbery was negative for gunpowder residue; and the

defense introduced a manifest of FedEx deliveries

showing (if it was accurate) that Phillips, a courier for that

company, could not have been at the Bellwood library

when the robbery and shootings occurred. Phillips then

filed this suit under 42 U.S.C. §1983 against the Village

of Bellwood and seven police officers who had par-

ticipated in the investigation and prosecution, con-

tending that he had been arrested without probable

cause. The district court granted summary judgment to

the defendants on this federal claim and relinquished

supplemental jurisdiction of all state-law claims. 743

F. Supp. 2d 931 (N.D. Ill. 2010). The judge concluded

that Ruby’s selection of Phillips’s picture established

probable cause for his arrest.

Phillips’s principal argument is that Allen spoiled

the identification procedure by speaking with Bufkin

where Ruby could overhear, which primed her to

finger Phillips. This made her identification unreliable,

Phillips insists. He advances several other argu-

ments—such as a contention that the police should

have done more to follow up other leads before arresting

him. (Police received tips implicating three other per-

sons. They conducted a second photo array including

4 No. 10-3559

a picture of one of these three; Ruby did not select it.

They did not show her pictures of the other two.) Phillips

also contends that police should not have arrested

him before his mother had a chance to show them a

copy of the FedEx manifest that was produced as an

alibi at trial. These are weak arguments. Police need not

run down all leads before making an arrest—especially

not when a crime is violent and leaving the perpetrator

at large may endanger other persons. Nor need police

wait for alibis, which even when presented they need

not believe. A delivery manifest could be fabricated, or

the times and locations of deliveries could be altered

before the document is shown to police. See Hernandez v.

Sheahan, 455 F.3d 772 (7th Cir. 2006) (presenting prison

officials with a document supposedly demonstrating

innocence does not require the prisoner’s immediate

release). Probable cause is established by a reasonable

belief that a person committed a crime. See Illinois v.

Gates, 462 U.S. 213 (1983). Police are entitled to leave to

the criminal process the full examination of potential

defenses. See, e.g., Hebron v. Touhy, 18 F.3d 421 (7th Cir.

1994).

The only subject that requires extended discussion

is Phillips’s contention that Ruby’s selection of his

photo was the result of an unreliable process. Identifica-

tion by a single eyewitness who lacks an apparent

grudge against the accused person supplies probable

cause for arrest. See, e.g., Gramenos v. Jewel Companies,

Inc., 797 F.2d 432 (7th Cir. 1986); Askew v. Chicago, 440

F.3d 894 (7th Cir. 2006). But Phillips maintains that an

identification should not count if it was the result of

No. 10-3559 5

unduly suggestive procedures. He relies on decisions

such as Neal v. Biggers, 409 U.S. 188 (1972), which holds

that a person’s selection of a suspect from a photo

spread or lineup cannot be used as evidence at trial if

the selection was the result of unduly suggestive proce-

dures that create an excessive likelihood of irreparable

misidentification. See also Simmons v. United States, 390

U.S. 377, 384 (1968).

Biggers and similar decisions don’t support Phillips’s

position directly. They concern the admissibility of evi-

dence at criminal trials, not claims for damages against

arresting officers. Similarly, decisions such as United

States v. Johnson, 859 F.2d 1289, 1294 (7th Cir. 1988), and

United States ex rel. Hudson v. Brierton, 699 F.2d 917, 923–24

(7th Cir. 1983), whose significance the parties debate,

concern the admissibility of evidence at a criminal trial.

But Phillips contends that the Biggers approach should

be extended from trials to arrests, and from a rule

of evidence to a rule of damages. We think that the pro-

posed extension would be improvident—though with

an important proviso that we discuss later.

The Supreme Court stressed in Gates that evidence

need not be admissible at trial in order to support a

finding of probable cause. A conclusion that there is

probable cause for arrest (or indictment) just gets the

criminal process started. Many later steps shape what

evidence can be used at a trial and how much is

required for conviction. Doctrines, such as that of

Biggers, that are designed to reduce the chance of

erroneous conviction do not have any greater function

6 No. 10-3559

at the arrest stage than do doctrines such as the require-

ment of proof beyond a reasonable doubt, the de-

fendant’s entitlement to confront his accusers, or the

hearsay rule. Probable cause is established, and arrests

are made, without an adversarial presentation. Applica-

tion of the Biggers framework is possible, however,

only after evidence has been gathered and an adversarial

hearing held.

Phillips wants such a proceeding held now and the

results used to determine the validity of the arrest. But

hindsight is not an appropriate basis for awarding dam-

ages against police. The validity of an arrest depends

on what is known at the moment of the arrest, not on

evidence that may be developed years later. Phillips

believes that he can get damages without the benefit of

hindsight. He tells us that officer Allen must have

known that he was steering Ruby to pick Phillips and

that a reasonable officer must have known that priming

a witness in this way would produce an inaccurate selec-

tion. The first part of this argument is cut short by the

rule that the officer’s motives do not count; probable

cause is objective. See, e.g., Ashcroft v. al-Kidd, 131 S. Ct.

2074, 2080–83 (2011); Devenpeck v. Alford, 543 U.S. 146, 153

(2004); Whren v. United States, 517 U.S. 806 (1996). And

the second part of Phillips’s argument fares no better.

Whether mentioning a name and a rumor in a victim’s

presence influences a later identification is a difficult

question of psychology, not something about which

police officers (and lawyers) know the right answer

instinctively. Bufkin’s statements may have meant

No. 10-3559 7

nothing to Ruby. She says that she knew neither the

name nor Phillips’s appearance; he contends, to the

contrary, that she must have known his name and face

because the two lived in the same neighborhood. In

court, on a motion for summary judgment, we must

assume that Phillips is right about this; but in a

hospital room years ago, Allen was not bound to know

that this was so. (Allen does not concede it even today,

nor has Ruby ever admitted knowing plaintiff’s name

and appearance before she selected his photograph.)

Suppose Ruby is lying and did know Wydrick Phillips

by name and appearance; would it follow that her knowl-

edge of a tip that he had been robbing people would

lead her to identify him as her assailant? Phillips’s

lawyer treats an affirmative answer as obvious, but

nothing is obvious about the psychology of eyewitness

identification. Indeed, one point well established in the

psychology literature is that most people’s intuitions on

the subject of identification are wrong. See Christopher

Chabris & Daniel Simons, The Invisible Gorilla: How Our

Intuitions Deceive Us (2010). We held in United States v.

Williams, 522 F.3d 809 (7th Cir. 2008), that someone who

contends that a particular kind of procedure led to an

unreliable identification needs evidence—if not from an

expert’s affidavit, then from published work such as

Elizabeth F. Loftus, et al., Eyewitness Testimony: Civil and

Criminal (4th ed. 2007), the standard text in this field.

Phillips has not referred us to such evidence; he has only

a lawyer’s confidence that what Allen did would have

produced a worthless identification. Lawyers’ talk is no

substitute for data.

8 No. 10-3559

Indeed, the approach of Biggers itself has been ques-

tioned by social scientists. The American Psychological

Association filed a brief as amicus curiae in Perry v. New

Hampshire, No. 10-8974 (U.S. Jan. 11, 2012), in which

the Court declined to extend Biggers to acts by private

parties that may influence eyewitnesses. The Associa-

tion told the Justices:

In Biggers and Manson [v. Brathwaite, 432 U.S. 98

(1977)], this Court enumerated five factors rele-

vant to the probable accuracy of an eyewitness

identification: “the opportunity of the witness to

view the criminal at the time of the crime, the

witness’ degree of attention, the accuracy of his

prior description of the criminal, the level of

certainty demonstrated at the confrontation,

and the time between the crime and the confron-

tation.” Manson, 432 U.S. at 114 (citing Biggers, 409

U.S. at 199-200). As shown by the discussion in

the text, most of these factors are indeed

relevant to probable accuracy—with the notable

exception of witness certainty, see infra n.14.

But given that notable exception, and given

the plethora of other accuracy-related factors that

researchers have identified since Biggers and

Manson, APA urges the Court, in an appropriate

case, to revisit the Manson framework so as to

bring it in line with current scientific knowledge.

APA Brief at 13 n.8. Footnote 14, to which note 8 refers,

adds:

No. 10-3559 9

Jurors’ evident belief that eyewitness confidence

correlates with accurate identifications was once

shared by many in the judiciary. Indeed, in

Biggers this Court stated, albeit without citing

any scientific authorities, that confidence is an

indication of accuracy. See 409 U.S. at 199-200.

Subsequent research, however, has called this

notion into very serious question. As one report

concluded, “[t]he outcomes of empirical studies,

reviews, and meta-analyses have converged

on the conclusion that the confidence-accuracy

relationship for eyewitness identification is

weak, with average confidence-accuracy correla-

tions generally estimated between little more

than 0 and .29.” Brewer et al., The Confidence-Accu-

racy Relationship in Eyewitness Identification, 8 J.

Experimental Psychol. Applied 44, 44-45 (2002).

Even these various correlation figures are likely

overestimates, moreover, because the confidence

of eyewitnesses in actual cases, unlike in con-

trolled experiments, may be infected by positive

feedback received in the investigative process (for

example, an officer stating during a photo array

or line-up, “good, you identified the suspect”).

[Citations omitted.]

The Court bypassed this topic in Perry, leaving to the

future any inquiry into the Biggers framework. Perry

holds that in the main the validity of an eyewitness

identification is for the jury—which implies that it is not

tortious to obtain that identification in order to have

evidence to present at trial. Neither the Supreme Court

10 No. 10-3559

nor this court has held that, as a matter of law, men-

tioning a suspect’s name spoils an identification.

Without a solid basis in the social science of eyewitness

identification, a court could not appropriately create

such a rule. Phillips has not offered any basis, solid

or otherwise, for us to do so.

We mentioned earlier the need for a proviso. It is this.

Suppose a particular technique that officers may use

to trick a person into making an unreliable identifica-

tion has already been forbidden by an authoritative

judicial decision (that is, by the Supreme Court or the

court of appeals with territorial jurisdiction) and the

officer uses it anyway. An officer who employs the for-

bidden technique in order to manufacture an identifica-

tion can’t complain when a court provides a remedy.

Several courts of appeals have concluded that, when a

state actor deliberately uses a forbidden technique to

generate a false identification, an award of damages is

permissible under 42 U.S.C. §1983. See, e.g., Good v. Curtis,

601 F.3d 393, 398–99 (5th Cir. 2010) (intentionally manipu-

lating a lineup); Brodnicki v. Omaha, 75 F.3d 1261, 1265–66

(8th Cir. 1996) (dictum; officer held not liable). This

approach does not assist Phillips, however, because no

judicial decision has held that mentioning a suspect’s

name in the hearing of a potential witness is improper.

What Allen did was not remotely similar to showing

a witness just one photo and asking her to “confirm”

that the photo depicts the culprit.

And if, despite the lack of scientific support, we were

to create the sort of rule that Phillips proposes, it could

No. 10-3559 11

not do him any good. A rule of law devised after the

events does not support an award of damages; officer

Allen would be entitled to qualified immunity. See al-

Kidd, 131 S. Ct. at 2083–85. It was not “clearly estab-

lished” in February 2005, when Allen arrived in

Elizabeth’s hospital room, that mentioning a suspect’s

name in the presence of an eyewitness, and then

showing that witness a photo spread containing the sus-

pect’s picture, violates the Constitution.

If Allen manipulated Ruby into selecting Phillips, he

may have a remedy under state law. The district court

dismissed all state-law claims without prejudice. But

Phillips does not have a damages remedy for wrongful

arrest under §1983 and the fourth amendment. None of

the parties’ other arguments requires discussion.

A FFIRMED

2-10-12