Ham v. Greene

MCDONALD, J.,

dissenting. I disagree with the majority’s determination that the jury reasonably could have found that the defendants lacked probable cause to arrest the plaintiff. “[W]hether particular- facts . . . constitute probable cause is always a question of law”; Vandersluis v. Weil, 176 Conn. 353, 356 , 407 A.2d 982 (1978); and therefore our review is plenary. Under this standard, I would hold that there was insufficient evidence for the jury to find that the defendants lacked probable cause to arrest the plaintiff. Accordingly, I would remand the case with direction to render judgment for the defendants on all counts of the plaintiff’s complaint.

The lack of probable cause is a critical element of both the plaintiffs malicious prosecution claim and false arrest claim under common law; see, e.g., id. (tort of malicious prosecution); Beinhorn v. Saraceno, 23 Conn. App. 487, 491 , 582 A.2d 208 (1990), cert. denied, 217 Conn. 809 , 585 A.2d 1233 (1991) (tort of false arrest); and under 42 U.S.C. § 1983 ; see Ricciuti v. New York City Transit Authority, 124 F.3d 123, 128, 130 (2d Cir. *538 1997) (federal civil rights claims for malicious prosecution and false arrest); Singer v. Fulton County Sheriff, 63 F.3d 110, 117-18 (2d Cir. 1995) (same). In making a finding of probable cause, the trial court must determine “whether the . . . evidence [offered] would warrant a person of reasonable caution to believe that the accused [had] committed the [charged offense].” (Internal quotation marks omitted.) In re Keijam T., 221 Conn. 109, 115 , 602 A.2d 967 (1992). “Evidence is not required to rise to a significant level of trustworthiness in order to meet the probable cause standard.” State v. Lewis, 245 Conn. 779, 808 , 717 A.2d 1140 (1998). “The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear [t]hat there is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.” (Internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 513 , 610 A.2d 1113 (1992).

The issue in this case is whether the affidavit submitted by the defendants in support of their application for an arrest warrant, if corrected by adding the information omitted, and looking at the evidence in a light most favorable to the plaintiffs case, supports a reasonable belief that probable cause did not exist. See Cartier v. Lussiter, 955 F.2d 841, 845 (2d Cir. 1992) (“[a]fter the affidavit has been corrected in a light most favorable to the plaintiffs ... if there remains an objective basis supporting probable cause, no constitutional violation of [the plaintiffs] Fourth Amendment rights has occurred”). 1 Therefore, the plaintiffs case can succeed only “where the warrant application is so lacking in *539 indicia of probable cause as to render official belief in its existence unreasonable . . . Malley v. Briggs, 475 U.S. 335, 344-45 , 106 S. Ct. 1092 , 89 L. Ed. 2d 271 (1986).

Applying this standard, I would conclude that, under an interpretation of the evidence most favorable to the plaintiff, the affidavit established probable cause. It is undisputed that the affidavit provided that two eyewitnesses, Lynwood Cypress and Joseph Timothy Davis, identified the plaintiff as the assailant who murdered one victim and wounded the other. Cypress, who was not identified by name in the affidavit, stated that, approximately thirty minutes before the shooting, the plaintiff, his friend “Joe” and another black male were driving around the area in an older model, beige, Datsun station wagon with wood like side panels and a luggage rack on top. According to the affidavit, Cypress stated that the vehicle had stopped near Sylvan Avenue and Ward Street in New Haven. Five to six black males were walking down the street, with their backs to the plaintiff, when the plaintiff, who had exited the vehicle, started shooting at them. Cypress stated that the vehicle then left the area, but that the plaintiff and Joe returned to the area of the shooting on foot approximately ten minutes later. According to Cypress, the plaintiff was wearing a black ski cap, a black army type jacket and black pants. The affidavit also provided that, after obtaining a search warrant for the plaintiffs residence, the police found and seized one black army type jacket, one brown empty pistol holder and one empty Remington .22 caliber bullet box.

While police were at the plaintiffs residence, Davis, approached the defendants and agreed to give a statement about the incident. According to the affidavit, *540 Davis stated that he had known the plaintiff for over eleven years and that they were very good friends. On the day of the shooting, Davis was the driver of the beige station wagon, the plaintiff was a passenger in the front seat, and a man named James sat in the backseat. Davis stated that he stopped the vehicle in the area of Sylvan Avenue and Ward Street and that the three men got out of the vehicle. According to Davis, the plaintiff was playing with a nine millimeter handgun when it accidentally discharged numerous times, hitting the victims. Davis stated that the plaintiff immediately got back into the vehicle and told Davis to drive away quickly. The police previously had located and seized the described vehicle on Hamilton Street in New Haven. Davis further stated that he and the plaintiff went back to the scene of the shooting on foot to see if anyone was hurt.

The facts alleged in the affidavit were sufficient to establish probable cause for the plaintiffs arrest. The identification of the plaintiff as the shooter by both Cypress and Davis, and the consistencies in their accounts, clearly established probable cause. Additionally, Davis’ statement that he drove the getaway car was against his interest and, therefore, reliable. See, e.g., State v. Barton, 219 Conn. 529, 551 , 594 A.2d 917 (1991). The information omitted from the affidavit, given an interpretation most favorable to the plaintiff, only establishes that: (1) Cypress made two statements to the police before incriminating the plaintiff in his third statement; and (2) Davis initially had stated that the plaintiff fired the pistol from inside the vehicle but later had stated that the plaintiff was outside the vehicle when he fired the gun. Neither of these revelations nor the varied identifications of the gunman by other witnesses sufficiently impugns the probable cause established by the defendants. “Once a police officer has a reasonable basis for believing there is probable *541 cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.” Ricciuli v. New York City Transit Authority, supra, 124 F.3d 128 .

If the criminal case against the plaintiff had gone to trial and he had been convicted for the shootings, an appellate court would hold that there was sufficient evidence for the jury reasonably to conclude that the plaintiff had committed the offenses charged. If both Cypress and Davis had testified in accordance with their statements, and had been cross-examined as to the omitted discrepancies, and if the plaintiff had produced witnesses with contrary testimony, the jury reasonably could have believed that the plaintiff was the shooter despite any contrary evidence. Even if Cypress and Davis refused to testily in accordance with their statements and recanted their identification of the plaintiff as the shooter, their written and signed or recorded statements of identification would be admissible as substantive evidence at trial. See, e.g., State v. Woodson, 227 Conn. 1, 20-21 , 629 A.2d 386 (1993); State v. Whelan, 200 Conn. 743, 753 , 513 A.2d 86 , cert. denied, 479 U.S. 994 , 107 S. Ct. 597 , 93 L. Ed. 2d 598 (1986). This would be sufficient evidence for a jury to convict the plaintiff for the shootings. See State v. Newsome, 238 Conn. 588, 612-19 , 682 A.2d 972 (1996).

While I conclude that probable cause existed for the plaintiff’s arrest, I also would hold that the defendants are protected from the plaintiff’s civil rights claims by the doctrine of qualified immunity. “An arresting officer is entitled to qualified immunity from a suit for damages on a claim for arrest without probable cause if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” (Internal quotation marks omitted.) Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir. *542 1997). Thus, “[t]he issue for immunity purposes is not probable cause in fact but arguable probable cause.” (Internal quotation marks omitted.) Id., quoting Myers v. Morris, 810 F.2d 1437, 1455 (8th Cir.), cert. denied, 484 U.S. 828 , 108 S. Ct. 97 , 98 L. Ed. 2d 58 (1987).

The trial court observed that the existence of probable cause in this case was a “close call.” The doctrine of qualified immunity is intended to protect officers in these precise situations, in which the officers must make discretionary decisions that are close calls. “ [Officers must frequently make credibility determinations in deciding whom to arrest, and imposing liability in circumstances like the ones present here would hamstring law enforcement efforts to a degree not only unfair to the individual officer but grossly destructive of the public welfare.” Stigall v. Madden, 26 F.3d 867, 869 (8th Cir. 1994). I would conclude in this case that the defendants have qualified immunity.

The result in this case only further endangers our cities, already beset by the kind of random, violent crime that terrifies witnesses and renders effective law enforcement very difficult. The breakdown of social control of violent crime creates an atmosphere in which the law abiding citizen cannot remain. The very survival of our cities is, in this sense, endangered by upholding this nearly one million dollar verdict against detectives faced with an onslaught of violence and reluctant witnesses. The majority’s opinion, holding police detectives hable for performing their duties in a reasonable manner, leads to substantial detrimental effects on society, “ranging from an inability to attract qualified candidates to serve in public positions, to a diversion from the discharge of official duties and towards the avoidance of litigation, to inhibiting the zealous performance of official obligations.” Cartier v. Lussiter, supra, 955 *543 F.2d 844 . Accordingly, I dissent from such a chilling and repressive result, which violates the constitutional duty of a state to ensure domestic tranquility.

Cartier concerned whether the trial court in that case should have granted the defendant’s motion for summary judgment, which was based on the defendant’s assertion of qualified immunity. Cartier v. Lussiter, *539 supra, 955 F.2d 842 . The same principles apply, however, to the question before this court today, namely, whether the trial court should have granted the defendants’ motion for a directed verdict or judgment notwithstanding the verdict.