Katherine Gardenhire and Walter Gardenhire v. Donald Schubert, in His Individual and Official Capacity as Chief of Police

BATCHELDER, Circuit Judge,

concurring in part and dissenting in part.

The majority opinion creates a new factor in the determination of probable cause: a duty to investigate. Because this innovation runs counter to the settled law of this circuit, and because Chief Schubert can hardly be expected to have anticipated it, I must dissent from Part II of the majority opinion.

When viewed in the light most favorable to the plaintiffs, the evidence establishes that from their earliest encounter with the Gardenhires, the police were in possession of four facts. First, Mary Della Sala complained that her belongings had been stolen, and that they were visible through the windows of the Gardenhires’ shop. Second, the allegedly stolen items were in fact in the Gardenhires’ shop. Third, the placement of the items in public view was somewhat suspicious. Finally, the Garde-nhires professed no knowledge of the theft.

These facts plainly support a finding of probable cause, regardless of when the Gardenhires were “arrested.” 1 Probable cause means “facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed ... an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 , 99 S.Ct. 2627 , 61 L.Ed.2d 343 (1979). It is not an exacting standard; probable cause requires only the probability of criminal activity, not some type of “prima facie” showing. Illinois v. Gates, 462 U.S. 213, 235 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983).

Here, the apparent victim of an alleged theft accused the Gardenhires of the crime, and the objects allegedly stolen were found in the Gardenhires’ actual or constructive possession. These objective factors support a reasonable belief that the Gardenhires had committed the offense of theft; the fact that before he instructed the Gardenhires to go to the Justice Center, Chief Schubert declined to conduct further investigation on the basis that the allegedly stolen objects were visible through a window, or on the basis that the Gardenhires protested their innocence, does not vitiate probable cause. A panel of this court so held in Criss v. City of Kent, 867 F.2d 259 (6th Cir.1988), a ease whose precedential grasp the majority engages in considerable acrobatics to evade.

In Criss , police officers observed through an open window street signs belonging to the City of Kent. The officers obtained a search warrant and questioned Criss, who resided in the apartment. Criss maintained that the signs had been taken by his roommate. The officers nevertheless arrested him for receipt of stolen property. A prosecutor later dismissed the charge, and Criss brought a § 1983 action for violation of his Fourth Amendment rights.

Despite Criss’s plausible on-the-spot explanation of his association with the signs, and despite the fact that someone in receipt of stolen signs would be unlikely to display them to public view, this court held that the arresting officers had probable cause for the arrest. The court noted that the signs were either the property of the City or were remarkable replicas. Because Criss had either constructive or actual possession of them, the court concluded, the officers had reasonable ground for their belief that Criss had received stolen property. The court went on to make clear that a duty to investigate is not part of the probable cause inquiry. The court’s *322 holding in this regard is worth setting out at length:

A suspect’s satisfactory explanation of suspicious behavior is certainly a factor which law enforcement officers are entitled to take into consideration in making the determination whether probable cause to arrest exists. A policeman, however, is under no obligation to give any credence to a suspect’s story nor should a plausible explanation in any sense require the officer to forego arrest pending further investigation if the facts as initially discovered provide probable cause....

To hold otherwise would be to allow every suspect, guilty or innocent, to avoid arrest simply by claiming “it wasn’t me.” And if the arresting officer failed to investigate such claims prior to arrest, the arrestee could bring a section 1983 suit.... [W]e find that no such duty to investigate can nor should be created.

Criss, 867 F.2d at 263 (citations omitted).

The majority attempts, unconvincingly, to distinguish Criss . The majority suggests that the items in Criss were of the type that one must presume are stolen, while those in this case could be deemed stolen only from Ms. Della Sala’s accusation. But this is to say that an inference that an officer might logically draw from the nature of a stolen object is entitled to greater weight than the testimony of the victim of the crime — a premise that itself is contrary to established precedent. Where, as here, a citizen informant is the victim of the crime in question, her report is entitled to great weight in the probable cause determination. See, e.g., Adams v. Williams, 407 U.S. 143, 147 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972). Indeed, as this court has recently pointed out, a crime victim’s accusation standing alone can establish probable cause. Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir.1999); see also United States v. Maryland, 479 F.2d 566, 569 (5th Cir.1973) (holding that “information given to law enforcement authorities by the victim of the crime immediately after its occurrence was clearly sufficient to supply probable cause for appellant’s arrest”).

From these shaky ramparts, the majority launches its principal assault on the holding of Criss . After Chief Schubert had received the crime victim’s complaint, and after he had corroborated that the allegedly stolen goods were in fact in the Gardenhires’ possession, according to the majority, “[fjurther investigation was necessary at that point.” The majority goes on to speak of a “duty to investigate an alleged crime before making an arrest,” suggesting that Chief Schubert was obligated to elicit and consider an exculpatory explanation from the Gardenhires. In so doing, the majority — although denying that it is doing so — subtly promulgates the rule that arresting officers have a duty to conduct an investigation into the basis of an eyewitness report before making an arrest that is founded on the report. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1453 (9th Cir.1991) (Hall, J., concurring).

This holding flies in the face of Criss’s explicit admonition that “no such duty to investigate can nor should be created.” Criss, 867 F.2d at 263 . And Criss is bottomed on Supreme Court caselaw. In Baker v. McCollan, the Supreme Court held that, “Given the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate every claim of innocence .... ” Baker, 443 U.S. 137, 145-46 , 99 S.Ct. 2689 , 61 L.Ed.2d 433 (1979). Although the plaintiff in Baker did not bring a claim under the Fourth Amendment, this court, in Criss , and others have applied the Supreme Court’s decision in the context of probable cause. Criss, 867 F.2d at 263 ; Pickens v. Hollowell, 59 F.3d 1203, 1207 (11th Cir.1995). The result is clear: a duty to investigate is no part of the probable cause determination. Criss, 867 F.2d at 263 ; Kelley v. Myler, 149 F.3d 641 , 646- *323 47 (7th Cir.1998) (“We refuse to add this extra requirement to the probable cause determination.... The inquiry is whether an officer has reasonable grounds on which to act, not whether it was reasonable to conduct further investigation.”).

Even if the majority were correct that the information in Chief Schubert’s possession “was not enough to justify an arrest,” the Chief would still be entitled to summary judgment on the basis of qualified immunity. The doctrine of qualified immunity does not require that there actually be probable cause to arrest. Even absent probable cause, qualified immunity is available if a reasonable police officer could have believed that his or her conduct was lawful, in light of clearly established law and the information the searching officers possessed. Anderson v. Creightort, 483 U.S. 635, 641 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). In 1996, the clearly established law of probable cause in this circuit was Criss v. City of Kent. The majority spends some three pages distinguishing this case, but Chief Schubert was not required to anticipate the majority’s opinion here. Chief Schubert was entitled to rely on the plain holding of Criss , and a reasonable and prudent man, rather than a legal technician, cf. Brinegar v. United States, 338 U.S. 160, 175 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949), could have read Criss to authorize the arrest, without further inquiry, of individuals who were in possession of particular goods that had been explicitly identified as stolen. Accordingly, I must dissent from this portion of the majority’s opinion.

. Although I question whether the Garde-nhires were ever arrested, I will not lake up the cudgels on that subject here. The important point is that the police had probable cause to arrest them after the initial interview, and the totality of the circumstances did not subsequently tip the balance in favor of the Gardenhires.