White v. Gerbitz

NATHANIEL R. JONES, Circuit Judge,

dissenting in part.

Because I believe the finding of probable cause in this case is much more problematic than the court’s analysis portrays, I dissent on the issue of probable cause to arrest and detain Clyde White.

The court correctly notes that White could not establish a constitutional violation ensuing from Officer Angel’s actions because courts have not yet determined what constitutes probable cause to arrest and detain a material witness to a crime. However, one proposition should be apparent: the arrest and detention of a citizen as a material witness requires a showing of probable cause under the Fourth Amendment to the United States Constitution because under the Fourth Amendment “the essential element is the physical restraint *465 placed upon the person, not the purpose behind the restraint.” In re Bacon v. United States, 449 F.2d 933, 942 (9th Cir.1971). While this observation is insufficient to defeat Angel’s qualified immunity, it is at least some admonition that the arrest and detention of a witness is an exceptional measure to be employed only in instances where voluntary cooperation appears unfeasible. Tennessee Code Annotated § 40-11-110 embodies the same limitation on the arrest and detention of a person as a material witness because under it a witness is to be detained only if he “has refused or will refuse to respond to process.” In my view, the probable cause threshold in this case was not met.

Both the district court and this court have attributed substantial weight to White’s statements that “he would like to not have to testify in the matter” and that he did not want to “snitch.” These statements do not imply a refusal to testify. Few citizens would be undaunted by the thought of having to testify to the occurrence of a murder, and White’s statements merely reflected his understandable fear of this prospect. Insofar as the court’s opinion suggests that statements of the character made by White are indicia of probable cause to arrest and detain a witness, I cannot agree. Where a probable cause determination is predicated largely on a witness’ statement of his willingness to testify, more than mere reticence to testify must be shown.

I recognize that Officer Angel and Chattanooga police authorities were faced with a difficult logistical problem because White was without a residence to which a subpoena could be sent. However, this circumstance only justified confining White to police quarters until alternative arrangements could be made for securing his testimony on the date of Denson’s trial. White was not shown to have any affiliation with Denson, and there was no realistic chance of or motive for his fleeing the jurisdiction. Furthermore, White was no longer a suspect at the time he was taken into custody as a “state’s witness.” Under these circumstances, it was unnecessary to subject White, a mere witness, to the very same restrictive treatment accorded Denson, the person charged with murder. After questioning White, Chattanooga police authorities could have sought temporary shelter for him or made some other arrangement less restrictive than incarceration. While neither the statutes of Tennessee nor the United States Constitution currently mandates that less restrictive arrangements be made, had Officer Angel and his superiors taken actions of this sort, they would have negated the unavoidable perception that Clyde White was treated poorly because he was one of society’s dispossessed.