finding officer recklessly disregarded the truth when he asked leading questions that increased the risk of a false identification, overlooked a discrepancy in a witness’s identification, and omitted three key facts from the affidavit that “any reasonable person would have known . . . was the kind of thing the judge would wish to know.”
How later courts described this case
- finding officer recklessly disregarded the truth when he asked leading questions that increased the risk of a false identification, overlooked a discrepancy in a witness’s identification, and omitted three key facts from the affidavit that “any reasonable person would have known . . . was the kind of thing the judge would wish to know.”
- stating that the focus is on the materials in the warrant
- “Normally, to evaluate probable cause, we would ask whether a reasonable officer would have found a fair probability that there had been [a crime] and that [the plaintiff] had committed it. But when, as here, a judge issues an arrest warrant, we defer to it unless the officer misrepresented material information to get the warrant.” (citations omitted)
- relying on Andrews v. Scuilli, 853 F.3d 690, 698 (3d Cir. 2017)
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 23-1095
_______________
KOBE PINKNEY
v.
MEADVILLE, PENNSYLVANIA; PATROLMAN JARED
FRUM; ALLEGHENY COLLEGE; DUNCAN FREELAND;
JOE HALL
JARED FRUM,
Appellant
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 1:19-cv-00167)
Chief Magistrate Judge: Honorable Richard A. Lanzillo
_______________
Argued: November 8, 2023
Before: RESTREPO, BIBAS, and SCIRICA, Circuit Judges
(Filed: March 12, 2024)
Carol A. VanderWoude [ARGUED]
MARSHALL DENNEHEY
2000 Market Street, Suite 2300
Philadelphia, PA 19103
Patrick M. Carey
MARSHALL DENNEHEY
717 State Street, Suite 701
Erie, PA 16501
Counsel for Appellant
Earl D. Raynor, Jr. [ARGUED]
1800 John F. Kennedy Boulevard
3rd Floor, Box 103
Philadelphia, PA 19103
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Police may not fake facts to find probable cause. Officer
Jared Frum applied for an arrest warrant. In his application, he
allegedly turned a shaky witness statement into a confident
identification and left out evidence that undermined the identi-
fication’s reliability. A judge then relied on this altered story
to issue a warrant to arrest Kobe Pinkney. But because there
was no probable cause to arrest him, Officer Frum violated his
clearly established rights.
2
I. THE WRONGFUL ARREST
On this motion to dismiss, we take the factual allegations
as true: Late one Saturday night, Officer Frum was near a
crowded college bar when he saw two men carrying Rhett Hap-
pel. Happel’s face had been smashed so badly that his eye was
swollen shut. But he could not remember exactly what had
happened.
So Officer Frum started investigating. He learned that Hap-
pel had allegedly drugged a woman the night before. And a
witness accused that woman of punching Happel (though the
witness later recanted). Happel also told him that two men, Joe
Hayes and Jared Shaw (the woman’s boyfriend), had threat-
ened him just hours before the attack.
A few days later, Duncan Freeland told Officer Frum that
he had seen the attack. Freeland described Happel’s attacker as
“an African American boy about 6’ … tall” with “some kind
of braids.” App. 646. Though Freeland had not recognized the
attacker at first, a friend later tried to jog his memory by send-
ing him three Facebook photos. In all three, Pinkney was the
only black man. Freeland thought that Pinkney “look[ed] an
awful lot like” the attacker. App. 648.
Officer Frum never probed how well Freeland could observe
the assault. Nor did he ask how Pinkney resembled the attacker.
Rather, he asked several leading questions assuming that
Pinkney did it:
Officer Frum: And all three [photos of Pinkney]
look like the gentleman that was at the bar Satur-
day night?
3
Freeland: Minus the hair in the last two, but yeah.
Officer Frum: Okay. Those same facial fea-
tures, same—
Freeland: Yeah.
…
Officer Frum: Okay. And—but you said you
just seen him tap Rhett on the shoulder, Rhett
looked around. You had seen Kobe throw the
punch.
Freeland: Yeah.
App. 648–49. Though Freeland answered these leading ques-
tions “yeah,” he never identified Pinkney as the attacker in his
own words.
Based on the interview, Officer Frum sought a warrant to
arrest Pinkney. The probable-cause affidavit that he wrote up
and submitted to the judge said:
[Freeland] stated that they were contacted by
Happ[el]’s friend … and was sent [a] picture of
a white male and a black male. [T]hey recog-
nized the white male as Jared Shaw and the black
male as Kobe Pinkney. [T]hey recognized
Pinkney as the black male that punched Happel.
They stated that [the friend] sent two more pic-
tures and they were both pictures of Pinkney.
App. 218. Based on this affidavit alone, the judge issued the
arrest warrant. Police then pulled Pinkney out of a college class
and arrested him. Soon, though, witnesses came to his defense,
4
and Freeland recanted his identification. Prosecutors dropped
all charges.
Pinkney sued Officer Frum and others for false arrest and
malicious prosecution. The District Court twice considered
Officer Frum’s claim of qualified immunity. First, it denied his
motion to dismiss based on the pleadings. On appeal, we
remanded, instructing the court to consider the audiotape of
Freeland’s interview. Pinkney v. Meadville, No. 21-1051, 2022
WL 1616972, at *3 (3d Cir. May 23, 2022). After reviewing
the recording, the District Court again denied Officer Frum’s
motion to dismiss. Then he filed this interlocutory appeal.
At this stage, we view the facts in the light most favorable
to Pinkney. Xi v. Haugen, 68 F.4th 824, 832 (3d Cir. 2023).
Because the District Court made no factual findings, it denied
qualified immunity based on the law. So we have appellate ju-
risdiction to hear this legal challenge to a denial of qualified
immunity. Dennis v. City of Philadelphia, 19 F.4th 279, 284
(3d Cir. 2021). We review all questions of law de novo. Starnes
v. Butler Cnty. Ct. of Common Pleas, 50th Jud. Dist., 971 F.3d
416, 424 (3d Cir. 2020).
Officer Frum argues that qualified immunity shields him
because he had probable cause for the arrest. To resolve that
defense, we must decide two issues: First, we consider whether
he plausibly violated a constitutional right. If so, we ask if a
reasonable officer would have known that Officer Frum’s
alleged conduct violated Pinkney’s rights. Saucier v. Katz, 533
U.S. 194, 201–02 (2001).
5
II. BASED ON THE PLEADINGS, OFFICER FRUM VIOLATED
PINKNEY’S CONSTITUTIONAL RIGHTS
Officer Frum violated Pinkney’s rights if he lacked proba-
ble cause to arrest him. Normally, to evaluate probable cause,
we would ask whether a reasonable officer would have found
a fair probability that there had been an assault and that
Pinkney had committed it. Andrews v. Scuilli, 853 F.3d 690,
698 (3d Cir. 2017). But when, as here, a judge issues an arrest
warrant, we defer to it unless the officer misrepresented ma-
terial information to get the warrant. Id. at 697–98.
So we must resolve two questions:
(1) As alleged, did Officer Frum “knowingly and
deliberately, or with a reckless disregard for the
truth, ma[k]e false statements or omissions that
create[d] a falsehood in applying for a warrant”?
Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d
Cir. 1997).
(2) Were those false statements or omissions
“material, or necessary, to the finding of proba-
ble cause”? Id.
Because we answer yes to both questions, Officer Frum
violated Pinkney’s rights.
A. Officer Frum recklessly disregarded the truth in the
warrant application
According to the pleadings, Officer Frum made three reck-
less errors in his affidavit: (1) overstating Freeland’s certainty,
(2) overlooking an inconsistency in Freeland’s statement, and
(3) leaving out key facts.
6
First, in applying for the arrest warrant, Officer Frum wrote
that Freeland “recognized” Pinkney as the attacker. App. 218.
That implied that Freeland had identified Pinkney positively
and unequivocally. Yet Freeland had never expressed such cer-
tainty. Rather, Officer Frum asked leading questions that sug-
gested that Pinkney looked like the attacker. And to each ques-
tion, Freeland simply responded “yeah.” App. 648–49.
But leading questions increase the risk of a false identifica-
tion. See Third Circuit Task Force, 2019 Report on Eyewitness
Identifications, 92 TEMPLE L. REV. 1, 16 (2019). So, though
Officer Frum could ask these questions, he could not assume
that, by answering them, Freeland was making a confident eye-
witness identification. Plus, Freeland said only that Pinkney
“look[ed] an awful lot like” the attacker, not that he was the
attacker. App. 648.
Second, Officer Frum overlooked a discrepancy. One of the
few things Freeland remembered was the attacker’s hairstyle,
but he twice sidestepped describing Pinkney’s hair. When
asked if Pinkney had braids, Freeland replied: “Looked like he
had something. So maybe—.” Id. Later, he said Pinkney
looked like the attacker “[m]inus the hair in the last two [pho-
tos].” Id. He had good reason to hedge: Pinkney never wore
braids. But Officer Frum brushed aside Freeland’s hedging. In
bolstering Freeland’s identification, he “had obvious reasons
to doubt the accuracy of the information he reported.” Wilson
v. Russo, 212 F.3d 781, 788 (3d Cir. 2000) (internal quotation
marks omitted).
Finally, Officer Frum omitted three key facts. He did not
disclose that the victim had been threatened by other men, that
7
a witness had at first identified the attacker as female, and that
no other witness had seen Pinkney at the bar. So he “withh[eld]
a fact in his ken that any reasonable person would have
known … was the kind of thing the judge would wish to
know.” Id. (cleaned up). In short, in his affidavit for the warrant
application, Officer Frum recklessly disregarded the truth.
B. As alleged, his misrepresentations and omissions tainted
the probable-cause finding
Our analysis does not end there. To be constitutionally sus-
pect, the misstatements and omissions must have been “ma-
terial, or necessary, to the finding of probable cause.” Sher-
wood, 113 F.3d at 399. To tell if the errors were material, we
reconstruct the affidavit by “excis[ing] the offending inaccura-
cies and insert[ing] the facts recklessly omitted.” Wilson, 212
F.3d at 789. Then we consider whether the revised facts and
circumstances would have “suffic[ed] in themselves to warrant
a reasonable person to believe” that Pinkney had committed
the assault. Id. (internal quotation marks omitted).
To start, we remove the language that Freeland “recog-
nized” Pinkney. Instead, the affidavit should have said only
that Freeland thought Pinkney looked like the attacker. Next,
we add the discrepancy. That makes the identification uncer-
tain. We also add the other omitted exculpatory evidence,
which shows that nothing corroborated Freeland’s identifica-
tion. And Officer Frum relied exclusively on Freeland’s inter-
view. So the reconstructed affidavit supports probable cause
only if one uncertain eyewitness is enough.
We give an eyewitness identification significant weight. It
satisfies probable cause unless it is unreliable or undermined
8
by exculpatory evidence. Id. at 790. There can be probable
cause even if there is “some ‘unreliability or exculpatory evi-
dence.’ ” Dempsey v. Bucknell Univ., 834 F.3d 457, 478 (3d
Cir. 2016) (quoting Wilson, 212 F.3d at 790). But when, as
here, a witness is the sole source of information, we “cast a
brighter light” on his account to ensure that it is reliable
enough. Andrews, 853 F.3d at 704.
Freeland’s identification was not. Its method was flawed.
He reviewed three curated photos in which Pinkney was the
only black man. That homemade photo array was suggestive.
See Dufort v. City of New York, 874 F.3d 338, 348 (2d Cir.
2017).
Although we may still credit a tainted witness identifica-
tion, it must be reliable. Neil v. Biggers, 409 U.S. 188, 198–99
(1972). To decide whether a suggestive witness identification
is admissible at trial, we consider (1) how much opportunity he
had to view the criminal during the crime, (2) how attentive he
was, (3) how accurately he had described the criminal in the
past, (4) how certain he was, and (5) how much time passed
between the crime and the identification. Id. at 199–200. We
apply those same factors to decide if a suggestive witness iden-
tification is reliable enough to support an arrest warrant.
None of these factors favors reliability here. Officer Frum
never asked Freeland about how well he could see the assault
or how much attention he was paying. His only questions were
conclusory or leading. And Freeland’s general description of a
black man with braids did not match Pinkney. Plus, Freeland
expressed uncertainty, saying only that Pinkney “look[ed] an
awful lot like” the attacker. App. 648. Finally, several days
9
passed between the assault and the interview. Because Free-
land’s identification was neither reliable nor corroborated, it
was not enough to show probable cause.
A police officer may not put on blinders and then claim
ignorance. A single witness identification, without more, must
have at least basic signs of reliability to amount to probable
cause. That bar is not high; either corroboration or an appro-
priate witness interview may suffice. But based on the facts
alleged, neither happened here. So Officer Frum violated
Pinkney’s Fourth Amendment rights by arresting him without
probable cause.
III. NO REASONABLE OFFICER WOULD HAVE FOUND
PROBABLE CAUSE
Pinkney’s right not to be arrested without probable cause
was clearly established. Andrews, 853 F.3d at 705. So was his
right not to be prosecuted without probable cause. Id. And no
reasonable officer would have covered up a lack of probable
cause by recklessly disregarding the truth in an affidavit. Lip-
pay v. Christos, 996 F.2d 1490, 1504 (3d Cir. 1993). A reason-
able officer thus would have known that Officer Frum’s alleged
conduct was unlawful.
*****
Probable cause requires enough evidence—one obviously
unreliable, uncorroborated witness is not enough. According to
the pleadings, Officer Frum exaggerated and hid facts to man-
ufacture probable cause. That was wrong. So we will affirm
and let this case proceed.
10