Petition for Writ of Certiorari — Warren v. City of Lincoln

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: APR 1

JOSEPH F. SPANIOL, JR,

Supreme Court, U.S

FILED

No.

IN THE SUPREME COURT OF

THE UNITED STATES

October Term, 1988

JACKSON WARREN, Petitioner,

VS.

CITY OF LINCOLN, NEBRASKA,

JAMES BREEN, SANDRA L. MYERS,

and DAVID BEGGS, Respondents.

PETITION FOR WRIT OF CERTIORAR|

TO THE EIGHTH CIRCUIT COURT

OF APPEALS

James R. Mowbray

Counsel for Counsel for

Petitioner Respondent

Dorothy A. Walker S30 $.. 13th St:

201 N. Sth Se. Suite A

Suite 242 Lincoln, NE

Lincoln, NE 68508

68508 (402) 475-2595

(402) 476-3882

Cooperating Attorneys

for the Nebraska

Civil Liberties Union

Richard Sievers

“

QUESTIONS PRESENTED

Does

jurisdiction,

following

autnorize

and theory advanced for

a party's

en banc ji

concecead

lcers,

the

supplemental

acting

Said argument and

argument

Fourteen

the

federa'! ire

banc, upon

petition for

consideration

the

brief

party mn

renearing, 7

Amendment

uncer

“Tp

Ime

Ww -

apne!

a renearing

first

time

renearing,

argument

on rehearing

‘aan

authority

ant

Nebrask

necessary

arr gee

Wa ant

arrestee

theory were

07)

unrelated felony crimes by coercing

nontestimonial physical characteristics

absent a showing of probable cause on the

unrelated felony crimes?

3. Do the Fifth and Sixth

Amendments to the United States

Constitution by and through the

Fourteenth Amendment entitle a traffic

warrant arrestee to assistance of counse’

when he is taken into custody, pursuant

to an arrest warrant for speec':ng anc

failing to appear, which carries a

penalty of three months imprisonment, anc

detained in custody for question-ng,

Fingerprinting and photographing on

unrelated felony investigations?

4, is the determination of probable

cause initially a question of fact for

the jury in a civil rights action for

unlawful detention under 42 U.8.C." 1983?

5. ls the issue of defendant police

-o*

‘

OF PARTIES

IST

anc

Warren,

NeorasKa,

wr be

Appeals

January

NTS

OF CONTER

—

TABL

Lil

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tf the plurality opinion of four

judges and the concurring opinion of

one judge is allowed to stand, tnen

the citizens of the State of Nebras<a

who are arrested on traffic warrants

will be subject to unlawful detention

for investigative purposes, inciudcing

uncounseled, custodial interrogation

and coerced non-testimonial phys?cal

characteristics on unrelated

felony charges absent a snowing of

probable cause to believe the traffic

arrestee committed the unrelated

felony charges.

CONCLUSION... cc ccc crc scccscccevesscnns 29

APPEND! X

Opinions of the 8th Cir. En Sanc..A

Opinions of the 8th Cir. Pane!....3

TABLE OF AUTHORITIES

Adickes v. S.#. Kresse

& Co. ,398 U.S. 144( 1970)... nce ee ences

Brown v lLiinois,

E22. Uses SD C1ste hc ees cance avs ns 5

Davis v. MissisS$Sipp1,

Ye eee tie. : Diewee wea eee Pe

Dunaway v. New York,

442 0.3. 200 (1974)...8, 10, 12, t4, s

Hormel v. Helvering,

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Eighth Circuit, is reported at 816 F.2d

1254 and is reprinted in the Appendix 8

hereto.

JURISDICTION

The jurisdiction of this Court to

review the judgment of the United States

Court of Appeals for the Eighth Circutt

js invoked under 28 U.S.C. 1254(1). The

jurisdiction of the Eighth Circuit was

invoked under 28 U.S.C. iZo ts The

jurisdiction of the United tates

District Court for Nebraska was invoked

under 28 U.S.C. 1343 (13).

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution of the United

States Articles fh Poe, eee and Article

XIV.

The right of the people to be secure

in their persons, houses, papers and

effects, against unreasonab'ie

searches and seizures, sna!!! not be

violated.

but upon probable cause. . .NO

person shall be. . .compe!!ed in any

criminal case to be a witness

against himself nor be deprived of

life, liberty, or Property, without

due process of law eee ie Se

criminal Prosecutions, the accused

shall enjoy the right. . .to have

the Assistance of Counse! for his

defense. . -No State shal! deprive

any person of life, liberty, or

Property, without due process of

law.

FEDERAL STATUTORY PROVISIONS

42 U.S.C. 1983

Every person who, under color of any

statute, ordinance, regulation,

custom, or usage, of any State or

Territory or the District of

Columbia, subjects, or causes to

be subjected, any citizen of the

United States or other person within

the jurisdiction thereof to the

deprivation of any rights,

Privileges, or immunities secured

by the Constitution and laws, shai?

be liable to the party injured in

an action at law, suit in equity,

or other proper proceeding for

redress. For the Purposes of this

section, any Act of Congress

applicable exclusively to the

District of Columbia shall be

considered to be a statute of the

District of Columbia.

STATE STATUTORY PROVISIONS

Section 29-427

Any peace officer having grounds

for making an arrest may take

the accused into custody or,

already having done SO, detain

him further when the accused

fails to identify himself

satisfactorily, or refuses to

sign the citation, or when the

officer has reasonable grounds to

believe that (1) the accused wi!’

refuse to respond to the citation,

(2) such custody is necessary to

protect the accused or others when

his continued liberty would

constitute a risk of immediate

harm, (3) such action is necessary

in order to carry out legitimate

investigative functions, (4) the

accused has no ties to the juris-

p>)

Giction reasonably sufficient to

assure his appearance, or (5) the

accused has previously failed to

appear in response to a citation.

NOTICE TO ATTORNEY GENERAL

OF STATE OF NEBRASKA

The petitioner challenges the

constitutionality of Nebraska Revised

Statutes 29-427 and notices the attorney

general of the State of Nebraska of said

challenge.

STATEMENT OF THE CASE

Jackson Warren Was contacted in his

Darked automobile around 4:3

Apri] PP 1985, Dy two Lincoln co!

officers, who were Investigating a report

Dy a male that a slender white ma

Cwenties, wearing a white snort sleevecd

snirt attempted to break into 71S second

Story apartment through a Window. The

first Officer to contact Warren was

Alexander With his police Cog that had

tracked from the vicinity Of the

attempted break-ir 2c. [5th 4&4 c Streets to

the Vicinity of Warren'.- Parked vehicle

Detween Sth and 20th on C Street

Warren was Inside the venicie. As the

police converged on the area, Warren

attempted to arive away. At Alexander's

direction, Warren Parked his venicle and

remained inside OT 4¢. At the direction

of another officer Myers contacted

, y

Warren in his. vehicle, questioned him

briefly, and upon running a warrant check

found that Warren had an outstanding

traffic warrant for speeding and failing

to appear. Myers arrested Warren on the

failure to appear warrant, performed a

pat-down search, placed him in her squad

car, and transported him to the jai!

where she turned his custody over to

Detective Breen around 5:00 a.m. for

questioning relating to the attempted

burglary and a series of burglaries and

sexual assaults Breen was investigating.

Breen denied Warren's request to

contact an attorney and questioned

Warren about his whereabouts earlier in

the evening. Detective Beggs interrupted

the custodia! interrogation to examine

Warren's hands and shoes for trace

evidence. Breen and Beggs took Warren in

their custody from the jail to the police

Station to obtain numerous prints of

Warren's fingers’ and palms, three mug

shots and three polaroid photos. Warren

was returned to the jail in the custody

of Breen around 6:30 a.m. to Post bond on

the failure to appear traffic warrant.

Warren was nineteen years old at the

time of the arrest, white, male and

slender. He was not wearing a white

short sleeved shirt, but a pink short

sleeved shirt. Appendix A at 2-6.

Appendix B at 2-6.

The issues at jury trial under

Warren's 42 U.S.C. 1983 complaint were:

Whether the failure to appear

traffic warrant authorized the

police to detain Warren in custody,

without counsel, to question him on

the April 13, 1985 attempted

break-in, other burglaries and sexual}

assaults under investigation by the

Lincoln Police Department and to

obtain nontestimonial physical]

evidence to aid in the Felony

investigations, under a snowing of

reasonable suspicion; whether the City

of Lincoln's long standing policy and

Procedure of detaining traffic

i; 3

warrant arrestee's for inter-

rogation and investigation of the

arrestee's involvement in other

crimes denies the arrestee’s

Fourth, Fifth, Sixth and

Fourteenth Amendment rights under 42

U.S.C. 1983; and whether the

respondents were entitled to

qualified immunity.

The issues on appeai to the three

dge panel were:

Whether the trial court erred in

instructing the jury that Warren

had been arrested for a traffic

violation when there was evidence

that in fact he had been arrested

as a suspect in an attempted

burglary; Whether the trial court

erred in instructing the jury as

to the law of custodial! arrest and

interrogation; whether the trial!

court misinstructed the jury on the

law of qualified immunity; and

whether the tria’? court erred in

dismissing, at the close of the

appellant's case-in-chief, the

complaint as to the City of

Lincoln and Officer Myers.”

pendix B at 7-8

The three judge pane! found in favor

of the petitioner on all issues and

remanded for new trial. Appendix 8B at 8.

The issues upon Petition for Rehearing en

banc remained the same for the

respondents as those at trial.

Not until filing their Supplementary

Brief on Petition for Rehearing did the

respondents assert that the Eighth

Circuit en banc could find as a matter of

law, probable cause to arrest Warren for

the attempted burglary. The four judge

plurality agreed with the respondents and

affirmed the district court judgment

which was adverse to each and every claim

made by Warren. Appendix A at 5

Judge Gibson's concurring affirmance

found that the issue Of uniawful

detention was properly submitted and that

the officers were protected by qualified

immunity by their reliance on the

Nebraska statute (29-427 set forth at

page xi herein). Gibson found this

statute did not violate clearly

established law. Appendix A at 25-26.

The four judge dissent maintained

the three-judge pane! opinion and further

found that the plurality opinion was

" sthout authority to hold that there was

for

probable cause to arrest Warren

attempted burglary. Append?x A at , 2

REASONS FOR GRANTING THE WRIT

\f the plurality opinion of four

judges and the concurring opinion of

one judge is allowed to stand, then

the citizens of the State of Nebraska

who are arrested on traffic warrants

will be subject to unlawful detention

for investigative purposes, including

uncounseled, custodial interrogation

and coerced non-testimonial physical

characteristics on unrelated

felony charges absent a showing of

probable cause to believe the traffic

arrestee committed the unrelated

felony charges.

By opting to exercise their ciscre-

tion to consider new arguments on appea!

to find that the police officers hac

probable cause to arrest the petitioner

for the attempted burglary, tne plurality

affirms a district court judgment foundec

on clearly erroneous and constitutiona!ly

infirm jury Instructions.

DUE PROCESS INSTRUCTION

The district court Instruction on

Due Process of Law" 1s found at Footnote

1 of the panel Opinion. Appendix 8 at

This instruction Violates clearly

established constitutiona] Taw held,

affirmed and reaffirmed by this Court.

The instruction is Obviously based upon

the clearly erroneous and constitution-

y Infirm interpretation Dy the

district court and the respondents of

Nebraska statute (29-427 set forth at

page herein).

Neither the instruction nor the

Interpretation of the statute requires

the officers to Nave reasonable grounds

to believe that Warren, committed the

attempted burglary or any other offense

the officers had under Investigation.

The only restriction placed on the DOlice

conduct herein was that of reasonableness

of time. investigatory detention 1s

reasonable only if founded on probable

cause for the offense for which the

detainee is held. Dunaway v. New York,

442 U.S. 200 (1974).

PROBABLE CAUSE IN 1983 ACTION

iS JURY QUESTION

The Eighth Circuit and the majority

of the Circuit Courts of Appeais, have

consistently held

that in (42 U.S.C. Section

1983) civil rights actions of

this nature, where a genuine

issue of fact on the existence

of probable cause for arrest is

presented, the question should

be submitted to the jury.

Giordano v. Lee, 434 F.2d 1227, 1230 (8th

Cir. 1970), cert. denied, 403 U.S. 93’,

91 $.Cct. 2250, 29 L.Ed. 2d 709 (1971),

citing Adickes v. S$.H. Kresse & Co.,

(398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d

142 (1970)). This rule was affirmed in

tinn v. Garcia, 53! F.2d 855 (8th Cir.

1976).

The First, Third, Fifth, Seventh,

Ninth and Tenth Circuit Courts of Appea’

are in agreement. 38.¢C.R. Transport Co.,

Inc. v. Fontaine, 727 F.2d 7,10 (lst Cir.

1984); Dreary v. Three Un-named Police

Officers, 746 F.2d 185, 191-192 (3rd

Cir. 1984); Reeves y. City of Jackson,

Miss., 608 F.2d 644, 648 (Sth Cir. 1979);

Garris vy. Rowland, 678 F.2d 1264, 1270

(Sth Cir.1982), cert. Genied 459 U.S. 864

(1982); Lester v. City of Chicago, 830

F.2d 706, 715-716 (7th Cir. 1987);

McKenzie v. Lamb, 738 F.2d 1005, 1008

(9th Cir. 1984), Bilbrey by Bilbrey vy.

Brown, 738 F.2d 1462, 1467 (9th Cir.

1984); Marland y. Heyse, 315 F.2d 312,

314 (10th Cir. 1963).

At trial, petitioner, not the

respondents, submitted 2roposed = jury

Instructions on CAUSE FOR OBTAINING

PHOTOGRAPHS AND FINGERPRINTS (No.7) and

PROBABLE CAUSE (No.8). (D.R. 32).

The obtaining of fingerprints, palm

prints, hand printing, and photographs

of an individual are nontestimonial

identification procedures.

The law of the State of Nebraska

states that the compulsion of a person

byh (sic) police officers to accompany

them to the police station, and the

forced submission to nontestimonial

identification procedures, is a

seizure of such a magnitude that

more than mere suspicion is required.

There must be a showing of probable

(sic) cause to believe the person so

seized has engaged in an articulabie

criminal offense prior to the

compulsion and forced submission to

said procedures.

State v. Evans, 215 Neb. 435, 44°, 338

N.W. 2d 788 (1983).

Probable cause may be defined as

reasonable grounds for action, or

the existence of facts and circum-

stances which would induce a reason-

able person to believe that a crime

has been committed and that the

suspect has committed tne crime.

A mere suspicion or belief is never

sufficient.

The petitioner's instructions are

soundly supported by Dunaway, suora.

Brown y. lllinois, 422 U.S. 990, 45 L.Ed.

2d 416, 95 S$.ct. 2284 (1979); Davis vy.

Mississippi, 394 U.S. ai, 69 $.Cct. 1394,

22 L.Ed. 2d 676 (1969), and the majority

of the circuit Courts of Appeals in the

cases previously cited, at page 9

nerein.

The law is aDundantly clear.

“Reasonable suspicion" does not meet the

Fourteenth Amendment requirement of

Probable cause to seize a citizen, deta;

him in Custody and force him to submit to

interrogation, and to nontestimonia’

identification procedures INCluding

photographs and fingerprints.

in Dunaway, Supra, a suspect was

Picked up by police officers and held for

questioning. Later, the Suspect,

Dunaway, was convicted after information

supplied during his interrogation

INcriminated him. His motion to Suppress

evidence obtained by the seizure was

denied by the state court. Reversing the

state court's denial to suppress

evidence, this Court reversed and

rejected the state's contention that

Dunaway's seizure was permissible because

it was based upon reasonable suspicion

and did not amount to an arrest. This

Court stated:

The application of the Fourth

Amendment's requirement of

probable cause does not depenc

upon whether an intrusion of

this magnitude is termed an

"arrest' under state law. The

mere fact that petitioner

was not told he was under arrest,

was not “booked,” and would not

have had an arrest record if t

interrogation had proved fruit!

while not insignificant for a!

purposes, (citation omitted),

obviously do not make petitioner's

seizure even roughly analogous to

the narrowly defined intrusions

involved in Terry and its progeny.

indeed, any “exception” that could

cover a seizure as intrusive as

that in this case would threaten

to swallow the general rule that

Fourth Amendment seizures are

"reasonable" only if based on

eronen ls Cause. . .°. For all but

those narrowly defined intrusions, the

requisite “balancing” has been

performed in centuries of precedent

and is embodied in the Principle that

seizures are "reasonable" only if

Supported by probable cause.

Moreover, two important decisions

Since Terry confirm the conclusion

that the treatment of the petitioner,

whether or not it is technically

characterized as an arrest, must be

Supported by probable cause. Davis

Vv. Mississippi, (supra. ), considered

whether fingerprints taken from a

suspect detained without probable

cause must be excluded from

evidence. The State argued that

the detention "was of the type

which does not require probable

cause," (citation omitted), because it

occurred during an investigative,

rather than accusatory state, and

because it was for the sole purpose

of taking fingerprints. Rejecting

the state's first argument, the

court warned:

"(T)o argue that the Fourth

Amendment does not apply to

the investigatory stage is

fundamentally to misconceive the

Purposes of the Fourth Amendment.

investigatory seizures would SuDdject

Unlimited numbers of Innocent

persons to the harassment and

Tgnominy incident to involuntary

detention. Nothing is more clear

than that the Fourth Amendment

Was meant to prevent wholesale

intrusions UPON persona] security

of our citizenry, whether these

intrusions be termed ‘arrest’ or

"investigatory detention.'”

Dunaway at 212-215. (Emphasis supplied).

Since 1975, this Court has continuous-

ly disapproved of arrests made for

"investigatory' purposes on less’ than

probable cause grounds. Brown, supra.

Warren was taken to an interrogation

room and his experience is

indistinguishable from Davis, Brown and

Dunaway. Referring to Brown, this Court

condemned the police conduct in Dunaway.

Our condemnation of the police

conduct in Brown fits equally the

police conduct in this case:

“The impropriety of the arrest was

obvious; awareness of the fact

was virtually conceded by the two

detectives when they repeatedly

acknowledged, in their testimony,

that the purpose of their action

was ‘for investigation’ or for

"questioning’' .. . The arrest,

both in design and in execution,

was investigatory. The detectives

embarked upon the expedition for

evidence in the hope that something

mignt turn up.”

Dunaway at 216.

The Dunaway court concluded in 1979

that:

Detention for custodial] Interrogation

-- regardiess of its labe] --

intrudes so severely on interests

protected by the Fourth Amendment

as necessarily to trigger the

traditional] safeguards against

illegal arrests.

id.

As in Brown, respondents Myers, Breen

and Beggs, testified that the purpose of

cheir actions were "for investigation."

The detention of Jackson Warren, both in

design and in execution, was Iinvestiga-

tory. The officers, embarked upon their

"expedition for evidence in the hope that

something might turn up." Brown at 605.

The Due Process of Law jury

instruction completely misled the jury,

and was in direct Violation of Brown,

Davis, and Ounaway. Appendix 8 at 8,

ny 7}

Petitioners proposed, yet rejected,

jury instructions placed the issue of

probable cause squarely and proper'y

where it belonged, before tre jury.

The task of determining whether

probable cause to arrest exists

as a matter of law in section

1983 actions is different than

a similar determination in the

context of a cirect review of a

criminal arrest. McKenzie v.

Lamb, 738 F.2d !005, 1007 (9th

Cir. 1984). Justice Kennedy,

writing for the Ninth Circuit,

stated:

In the latter situation,

we are called upon to

review both law and fact

and to draw the line a

to what is and is no

reasonable behavior.

* * * By contrast, ina

Section 1983 action the

factual matters underlying

the judgment of reasonable-

ness generally mean that

probable cause is a question

for the jury * * *

id. at 1007-08 (Emphasis supplied).

APPELLATE JURISDICTION TO

DETERMINE PROBABLE CAUSE AS

AS A MATTER OF LAW IN 19823

ACTIONS UPON EN BANC REHEARING

The record supports that the

respondents did not raise the issue of

probable cause as a matter of law until,

Following the Eighth Circuit's granting

their Petition for Rehearing En Banc,

they proposed this new position in their

Supp lementa] Brief in Support of

Rehearing En Bank at page iv.

STATEMENT OF THE ISSUES

| V

IN A 1983 ACTION PROBABLE CAUSE !S__

VIEWED OBJECTIVELY AND MAY BE FOUND TO

EX!ST EVEN THOUGH THE OFFICER FELT HE DID

NOT HAVE PROBABLE CAUSE. DETENTION UPON

REASONABLE SUSPICION 1S NOT UNLAWFUL |F

FOR A REASONABLE PERIOD oF TIME AND FOR

LEGITIMATE INVESTIGATIVE PURPOSES.

Emphasis supplied.

The four judge olura 1ty took the

respondent's bait, Siving the Lince'r

police not just the “two bites of the

apple," Llaguno y. Mingy, 763 F.2d 1560,

1569 (7th Cir. 1985) (en banc), cert.

dismissed U.S » 1873.3. 6 6, 92

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from the Due Process of Law and Qualified

Immunity Instructions, but the whole

apple and the orchard in which it grows.

The plurality opted to set aside the

general! rule against considering new

arguments on appeal, Wright v. Newman,

735 F.2d 1073, 'G'fS6 t8tn Gir. 1984) and

exercised its discretion to reach the

probable cause issue. TS Ge so the

plurality relied too broadly orn ‘this

Court's decision in Singleton v. Wulff,

428 U.S. 106, 120-121 (1976).

It 1s the general rulé, of cours

that a federal! appellate court ¢d

not consider an issue not passed

below.

S »

oes

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a on ”~

LPO

Certainly there are circumstances in

which a federal appellate court ‘s

justified in resolving an issue not

passed on below, as where the proper

resolution is beyond any doubt, see

Turner v. City of Memphis, 369 U.S.

350 (1962), or where “injustice

might otherwise result." Hormel! v.

Helvering, 312 U.S. ($52), at 557

(1941).

The plurality’

anil «

eS.

)

'.)

(Dp

cause to arrest Warren for the attempted

burglary resolves the primary issue of

this case, at trial and initial appeal.

Whether the failure to appear

traffic warrant authorized the

police to detain Warren in

custody, without counsel, to

question him on the Apri} 13, 1985

attempted break-in, other

burglaries and sexual assaults

under investigation by the

Lincoln Police Department and

to obtain nontestimonia!

physical evidence to aid in

the felony Investigations,

under a showing of reasonable

SUSPICION.

Further, the plurality resolves the

secondary issue.

Whether the City of Lincotn's

long standing policy and

procedure of detaining traffic

warrant arrestees for intero-

gation and Investigation of

the arrestee's involvement

in other crimes denies the

arrestee'’s Fourth, Fifth,

Sixth and Fourteenth Amendment

rights under 42 U.S.c. 1983.

PRIMARY |SSUE

In 1987, the primary issue herein

was Initially granted certiorar: anc then

dismissed as improvident

State v. Blair, 69] S.W.

banc 1985), cert dismis

Missouri -. Blair, 480 UV

L.Ed. 2€ 678, 108 $.Ct.

The police arrested

outstanding traffic warrant

in custody for questioning

fingerprints regarding

investigation for which they

probable cause.

The question is whether

defendant's initial arres

pretextual and rendered h

subseacuent detention unla

and evidence obtained inc

thereto inadmissable

id. at 260.

Blair affirmed the cour

affirmance of the tr

Suppression of her alm

Statements made at ner Nic

The court relied on a well-

of this Court, upon whic

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the defense ot

section 1983 action

policy, not state policy.

Landrum v. Moots, 576 F.

(footnote 16) (8th Cir.

good fait

rests on fede

1978).

NEBRASKA REVISED STATUTE Section

99-427 FAiLS CONSTITUTIONALLY

AS INTERPRETED BY THE CITY

OF LINCOLN,

Lincoln

~ Leitne

Linco

Do!

r testified

In pol

that

AND THE POLICE OFFICERS

ice Chief Dean

en et onl] an

ae! wWUuaA: i

jce department policy

officers were trained to detain

indiv1

duals

violations

regarding other matt

investigation.

stated that a po!

should take an

custody to question him 11

officer has reasonab

that that individual!

crime.

Appendix B at 38-40

Lincoln's custom of

arrestees for investigator

"reasonable suspicion grou

« £

supported by

the statute

arrestees

arrested

+ t - 5 .

For questioning

ers unaer

for tra

Fic

eitner also

jce officer

le s

committea a

individual int

detaining traff

OTHER CRIMES, the obvious gloss that the

district court, the police officers, and

the City of Lincoln added to the statute.

This gloss defeats the constitutionality

of the statute.

lf the statute permits officers to

detain arrestees ", ; tO carry out

legitimate investigative Functions"

RELATING TO THE CRIME FOR WHICH THE

DETAINEE WAS ARRESTED, then the statute

is consitutional.

Where a statute is susceptible of two

constructions, under one of which the

Statute is valid, while under the

other it is unconstitutional or of

doubtful validity, the Nebraska

Supreme Court will adopt the

construction which gives the statute

validity. State vy. Evans, supra.

Appendix 8B at 46.

The Nebraska Supreme Court has

already generally agreed with the pane]

Opinion.

We agree fully with the statement,

relied on by defendant, set out in

United States yy. Lefkowitz,

supr [ay

that "“[a]n arrest may not be

used as a pretext to search for

evidence." That proposition has

been widely accepted in various

courts across the nation. See Warren

v. City of Lincoln, Neb., 816 F.2d

1254 (8th Cir. 1987), reh'g en banc

granted 825 F.2d 176, and cases cited

therein. Ne have no genera!

disagreement with the statement in

Warren, 816 F.2d at 1257: “An arrest

ostensibly for one purpose but in

reality for the primary purpose of

furthering an ulterior goa] is

unreasonable under the fourth and

fourteenth amendments [to the U.S.

Constitution].”

State v. Vann, 230 Neb. 601, 605,

N.W.2d : (Sl. Op. December 16, 1988)

(Emphasis Supplied).

RIGHT TO COUNSEL

The plurality's reliance on Kirby v.

lllinois, 406 U.S. 682 (1972) to deny

Warren's Sixth Amendment right to ccunse!

is clearly erroneous. Warren was ir

custody on a warrant to arrest him for

speeding and failing to appear, a

jailable offense. Indeed, he most

certainly was subject to adversary

judicial criminal proceedings!

MUNICIPAL LIABILITY

Under Monell] v. New York City Dept.

of Social Services, 436 U.S. 658, 690-69]

(1977) the City of Lincoln is clearly

liable to Warren for damages resulting

from his unlawful detention resulting

from the unconstitutional "custom" of the

city’s training her officers to detain

traffic warrant arrestees for questioning

on unrelated felony offenses on a mere

showing of “reasonable suspicion."

CONCLUSION

Most importantly, this Court must

grant certiorari to address the blatantly

unconstitutional custom of the City of

Lincoln to detain ererrTic warrant

arrestees for investigative purposes on

Felony offenses absent probable cause;

the blatantly unconstitutiona! denial of

counsel to a person detained in custody

on a jailable offense; the injustice of

the plurality’s reaching the primary

issue, an issue never before decided by

this Court.; the concurring opinion's

unconstitutional affirmance of a judgment

based on unconstitutional! jury

instructions.

Warren's constitutional rights nave

been violated. Warren is obviously

innocent of al} the felonies the

respondents were investigating. Innocent

£'4ncoln and the

citizens of the City oc

State of Nebraska wil! continue to suffer

similar constitutional violations at the

whim of police officers trained to detair

them for felony investigatory purposes

absent probable cause.

mes R. Mowbray

ounsel for Petitioner

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 86-1434

Jackson Warren, *

Appellant, *

v * Appeal! from thre

x United States

* District Court for

City of Lincoin, * the District of

Nebraska; James * Neporaska.

Breen; Sancra L. *

Myers and David =

M. Beggs, >

Appellees. *

Submitted: September 15, 1987

Filed: January 4, 19893

Before LAY, Chief Judge, HWEANEY,

McM!ILLIAN, ARNOLD, JOHN R. GIBSON, FAGG,

BOWMAN , WOLLMAN, ana MAGILL, Cirewit

Judges, en banc.

WOLLMAN, Circuit Judge.

Jackson Warren filed this suit

under 42 5 ye oa Section 1983 (1982)

against the City of Lincoln, Nebraska

(the City), and three Lincoln police

officers. At the close of Warren's case-

in-chief, the district court! dismissec

the action as against officer Sandra L.

Myers and the City. Upon the conclusion

of the trial, the jury returned a verdaict

in favor of the remaining defendants,

officers James Breen and David Beggs.

After nearing the case en panc,2 we

atT tem:

At approximately 4:30 a.m. on Aor

13, 1985, Lincoln police officers

responded to a cali from aoman-~ wh

claimed someone had just attempted %&

1The Honorabie Warren K. Urbdbom

Chief Judge, United States District Cour:

for the District of Nebrasxa.

2Tnhe panei opinion of this cour

filed previously, Warren v. City oOo

Lincoln, 816 F.2d 1254 (etn Cir. 1387)

was automatically vacated wnen th

petition for rehearing was grantec.

break into his apartment through a second

story window. The man described the

intruder, who had fled the scene on foot

toward the east, as a slender white male

in his early twenties wearing a white

short-sleeved shirt. One of the officers

who responded to the cal! was teamed with

a police dog, which tracked tne

intruder'’s scent east from the crime

scene to Jackson Warren's parked car four

and one-half blocks away. Warren isa

slender wnite male who at the time of the

Incident was nineteen years Olid and

wearing a jlight-colored short-sleeved

shirt. As the police approached tne car,

Warren started his engine and attemptecd

to drive away.

A police officer flagged Warren down

and told him to park his car. Officer

Myers then approached Warren in nis car

and asked for some 1adentification. Sne

briefly questioned Warren and then ran a

check on Warren's license from her squaa

car. She discovered an outstanding

for failure

warrant for Warren's arrest

to appear on a traffic violation. Myers

arrested Warren on the failure-to-appear

warrant, performed a pat-down search, and

put him in her squad car.

Myers took Warren to tne Lincoln

jail complex and turned him over to

Detective Breen at approximately 5:90

a.m. Breen had deen Investigating a

series of burglaries and sexual assaults

that naa some similarities to the Apri!

13 attempted burglary. Breen questionec

Warren on his background and on nis

whereabouts earlier that day,

Warren that ne was questioning Aim cr

connection with recent prow: ing

incidents. At one point auring tne

questioning Detective Beggs entered tne

Ol anc

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different level of detention.

The first category consists of

consensual communications between

officers ana citizens, invoiving no

coercion or restraint of liberty. Such

encounters do not constitute seizures and

thus are beyond the scope of the fourth

amendment. See Florida v. Royer, 460

U.S. 491, 497 (1983). The second

category is the so-ca!'ed Terry stop, see

Terry v. Ohio, 392 U.S. 1, 21-22 (1968);

Florida vv. Royer, 460 U.S. at 498-99,

pursuant to which § an officer having

reasonabie suspicion that a person has

committed or is about to commit a crime

may temporarily seize the person for

limited investigative purposes. Finally,

there are full-scaie arrests, which must

be supported by probable cause. Po°t’e",

818 F.2d at 682.

Ai! agree that the officers.

facts and circumstances surrounding

Warren's arrest, however, is fully

developed in this case, and those facts

and circumstances are uncontroverted.

When the issue of probable cause arises

in a damage suit and "the facts are not

disputed or are susceptible to only one

reasonable inference, the question is one

of Taw. for the «: court... Sion eee eee

oo) <P i ae $55, 36! CRth “Cir ests,

(citations omitted); see also Gramenos v.

Jewel Cos... TST. F.2d" 432, -436=39 (Tt?

ome ae 1986), cert.denied, 107 $.Cct. 195%

(1987); Garris v. Rowland, 678 F.2d 1264,

1270 (Sth cCir.), cert.denied, 459 U.S.

864 (1982). Under such circumstances,

the general rule against considering ney

arguments on aosea!l has less appea?. Ses

Wright v. Newman, 735 F.2d at !O076. We

therefore opt to exercise our discretio:

in favor of reaching the probable causs

issue. see Singleton v. Wulff, 428 U.S.

106, 120-21 (1976).

Officer Myers and Detective Breen

testified that they believed they lacked

probable cause to arrest Warren for the

attempted burglary. Such testimony,

Nowever, does not end the inquiry, for it

is well-settled "that ‘{t]he test of

probable cause is not the articulation of

the policeman's subjective theory but the

objective view of the facts.'" United

States v. O'Connell, 841 F.2d 1408, 1419

(8th Cir.) (quoting White Pees hee

States, 448 F.2d 200, 254° -(8th= Cie.

1971), cert.denied, 405 Wea. “926 (1972) ):;

cert.denied, 108 S.ct. 2857 (1988).

iN Royer, the defendant sought to

suppress evidence on the ground that he

waS being illegally Cetained when he

consented to a search. Tne Supreme Court

noted that “the fact that the officers

did not believe there was probable causé

and proceeded on a consensual or Terry-

stop rationale would not foreclose the

State from justifying Royer's custody Db)

proving probable cause* * * ." ld. at

507 (citing Peters v. New York, decide

with Sibron Vv. New York, 392 U.S. 4

(1968). A panel of this court enunciate

this principle in Klinger v. Unite

States, 409 F.2d 299 (6th Gir.3

cert.denied, 396 U.S. (1969).

Because probable cause for an

arrest is determined by objective

facts, it is immateria! tnat [the

officer], at the hearing on the

motion to suppress, testified

that he did not think that he Naa

“enough facts" upon whicn to arrest

[the suspect] for armed ropbery.

His subjective opinion is not

material.

ld. at 304 (citations omitted,); see als

United tates Vv. Salinas-Caideron, 72

10th Gir. 1984

<8]

_——————<<=o<«omlmlmhC

overrule an officer's determination that

he had pb, obable cause to arrest,

consistency suggests a court may aiso

find probable cause despite an officer's

judgment that he did not have probable

cause to arrest.'); United States vv.

Lester, 647 F.2za 669, 873 (9th Cir. 1981)

(“the validity of the arrest shouid be

judged by whether the arresting officers

actually had probable cause for the

arrest, rather than by whether’ the

officers gave the arrested person tir

right reason for the arrest"). Thus,

although the officers believec tney

possessed only reasonable suspicion that

Warren was involved in the attempted

burglary, ao court nevertheless may

conclude that there was in fact probable

| cause. |\f there was probable cause, the

officers' conduct must be adjudged

accordingly.

We thus must determine whether the

facts available to the officers

objectively gave rise to probable cause

to arrest Warren for attempted burglary.

Probable cause exists when at the moment

the arrest was made, "the facts and

circumstances within [the officers’!

knowledge and of which they had

reasonably trustworthy information were

sufficient to warrant a prudent man in

believing that the petitioner nad

committed or was committing an offense.

Beck v. Ohio, 379 U.S. 89, 9? (1964)

(citing Brinegar v. United States, 338

i ss 160, 175-76 (1949)). “The

determination of whether orobable cause

exists must not rest on isolated facts;

rather it depends. on the cumuiative

effect of the facts in the tota'!

ity nF

the circumstances.’ United States v.

Archer, 840 F.2d 567, 573 (8th Cir. 1988)

(citing United States v. Bubis, 744 F.2d

61, 64 (8th Cir. 1984).

The following uncontroverted facts

were within the officers’ knowledge. A

man reported that a slender white male in

his early twenties wearing a white short-

sleeved shirt had tried to gain entry

into his second floor apartment by

attempting to ‘force open awincow.*? “~re

3Nebrasxa aw provides in the

following definition of burglary:

A person commits burglary if such

person willfully, maiiciously, and

forcibly breaks and enters any rea!

estate or an improvements erected thereon

with intent to commit any felony or with

intent to steal property of any vaiue.

Neb. Rev. cat. Section 28-507 (:)

(Reissue 1985). The relevant portions of

the criminal! attempt statute provide as

follows:

(1) A person shall be guilty of an

attempt to commit a crime if he:

(b) Intentionally engages in conduct

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is a slender white male, who was nineteen

years old and wearing a light-colored

short-sleeved shirt. As the officers

approached his car, Warren attempted to

drive away. We believe that these facts

and circumstances would warrant a prudent

person in believing that Warren was the

intruder.

in United States v. Skinner, 412

F.2d 98 (8th Cir.), cert.denied, 396 U.S.

967 (1969), officers were looking for a

bank robber described as a white male,

35-45 years old, slender in buiid, ‘less

than five feet six inches in height,

having brown hair turning gray, in neec

of a shave, and hatless. See id. at !01.

A panel of the court found probabie cause

to arrest a suspect fitting the

description, found at 1:15 p.m., one hour

after the robbery, sitting at a lunch

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failure to read Warren the Miranda

warnings and Breen's denia! of Warren's

requests to see counsel. The reading of

Miranda warnings is a procedura|

safeguard rather than a right arising out

of the fifth amendment itself. ee

Miranda, 384 U.S. at 467. Thus, the

remedy for a Miranda violation is the

exclusion from evidence of any compelled

self-incrimination, not a section 1983

action. See Bennett v. Passic, 545 F.2d

1260, 1263 (18th Cir. 1976); Thorton v.

Buchmann, 392 F.2d 870, 874 Ter Cir.

1968); Hampton v. Gilmore, 60 F.R.D. ta

81 (E.D. Mo.), aff'd, 486 F.2d 1407 (8th

Cir. 1973); ef. Hensley v. Carey, 813

F.2d 646, 649-50 (7th Cir.) (no section

1983 claim for officer's failure to

conduct a Stovall and Brathwaite-type

line-up), cert.denied, 166 S.Ct. 456

(1987). Warren's) sixth amendment right

to counsel also was not violated, as that

right had yet to attach. Warren never

was subjected to adversary judicia’

criminal proceedirigs such as forma]

charges, arraignment, or indictment. See

Kirby v. l[llinois, 406 U.S. 682, 689

(1972).

Because we conclude that the

uncontroverted facts demonstrate that

Warren's rights were not violated, the

judgment of the atatrict court is

affirmed.

JOHN R. GIBSON, Circuit Judge, concurring

in the affirmance.

| agree that the judgment should be

affirmed. While i agree witr Judge

Wollman's opinion, am not convinced

that it is necessary that we go this far.

The panel opinion demonstrates that the

issue of whether tne traffic arrest was

pretextua! was not raised in the trial

court. My examination of the record

confirms that it was not. |[ndeed, an

instruction offered by Warren conceded

that he did not claim the arrest to be

wrongful. (D.R. 40). This issue was not

briefed when the case was before the

panel. | am satisfied that the issue of

unlawful detention was properly

submitted. Further, the officers in

relying on the Nebraska statute did not

violate clearly established law and were

protected by qualified immunity.

HEANEY, Circuit Judge, dissenting, with

whom LAY, Chief Judge, and ARNOLD and

McMILLIAN, Circuit Judges, join.

| respectfully dissent. The majority

holds that Poiice Officer Myers nad

probable cause as a matter of law to

arrest Warren for attempted burglary. it

reaches this conclusion--even though

officer Myers conceded in district court

that sne did not have probable cause to

make such an arrest, even though the case

was tried in district court on the theory

that no probable cause existed, and even

though the issue of probable cause was

not presented to this Court on the

initial appeal. in light of these facts,

and the fact that a reasonable jury could

find that probable cause did not exist,

this Court is without the authority to

hold that there was probable cause to

arrest Warren for attempted burglary.

For these reasons, as well -as' those

stated in my original opinion, ! would

reverse and remand.

The existence of probable cause in

section 1983 actions constitutes a4

question of fact for the jury, not this

Court, to decide. We, along with several

other circuits, have recognized that the

question of probable cause is a section

1983 action belongs to the trier of fact.

"[Lt]n civil rights actions of this

nature, where a genuine issue of fact on

the existence of probable cause for

arrest is presented, the question should

be submitted to the jury.” Giordano vy.

lee, 434 F.2d 1227, 1230 (8th Cir. 1970),

cert. denied, 403 U.S. 931, 3! S.Ct.

2250, 29 L.€d.2d. 709. (1971), gifting

Adickes v. S.H. Kresse & Co., 398 U.S.

144, 90 S$. Ct. 1598, 26 L.Ed.2d 142

(1970); Anderson v. Haas, 341 F.2d 497

(3d Cir. 1965); and Mariand v. Heyse, ato

F.2d 312 (10th Cir. 1963). This rule was

reaffirmed by this Court in Linn v.

Garcia, 53] F.2d 855 (8th Cir. 1976), in

which we stated:

Where the facts are in dispute

or where they are subject to

different inferences, the question

of probable cause is for the jury;

however, where the facts are not

disputed or are susceptible to only

one reasonable inference, the

question is one of law for the court.

ta. at S61.

The task of determining whether

probable cause to arrest exists asa

matter of law in section 1983 actions is

different than a similar determination in

the context of a direct review of a

criminal arrest. McKenzie v. Lamb, 738

F.2d 1005, 1007 (9th Cir. 1984). Justice

Kennedy, writing for the Ninth Circuit,

stated:

In the latter situation, we are

called upon to review both law and

fact and to draw the line as to what

is and is not reasonable behavior.

* * * By contrast, ina Section 1983

action the factual matters underlying

the judgment of reasonableness

generally mean that probable cause is a

question for the jury * * #.

id. at 1007-08 (citations omitted.)

Thus, a finding that probable cause

existed as a matter of law is appropriate

“only if no reasonable jury could find

that the officers did or did not have

probable cause to arrest.” I!d.; see also

Lester v. Cit, of Chicago, 830 F.2d 706,

715 (7th Cir. 1987) (question of whether

police had probable cause to arrest

plaintiff for disorderly conduct was

proper ly submitted to_ jury); B.C.R.

Transport Co., Inc. v. Fontaine, 727 F.2d

7, 10 (lst Cir. 1984) ("“(WJhether or not

probable cause exists in any given case

invariably depends on the particular fact

and circumstances f that case, a

question to be resolved by the trier of

fact."); Deary v. Three Un-named Police

Officers, 746 F.2d 185,- 191 (3d Cir.

1984) (ultimate fact of probable cause to

arrest plaintiff for bank robbery was for

jury to decide); Bilbrey by B8ilbrey v.

Brown, 738 F.2d 1462, 1467 (9th Cir.

1984) (if reasonable persons might reach

different conclusions about the facts,

the establishment of probable cause 1s

for the jury, upon a proper instruction

about the law); Reeves ¥. (305 of

Jackson, Miss., 608 F.2d 644, 650 (5th

Cir. 1979) (probable cause for arrest

constitutes jury question as jury could

have found that officers had no cause to

arrest plaintiff for public

intoxication).

The Third Circuit, in Deary, dealt

with the precise issue taken up by the

majority in this case. it wrote:

(W]e are required to decide whetner

Summary judgment in Deary's case

could properly have been granted on

the issue of probable cause. That

is, taking all of Deary's allegations

as true and resolving al] inferences

In her favor, whether a reasonable

Jury could find that the police

officers could not have reasonably

believed that Deary committed the

City Bank robbery, 1.@€., did not nave

probable cause for her arrest. Like

the Patzig case, we too are faced with

substantial circumstantia] evidence

which would sustain a finding of

probable cause: the alleged similarity

iN appearance and resemblance in

physical characteristics of Deary to

the suspect pictured in the bank

surveillance photographs, as wel! as

Deary's appearance of Flight from the

arresting officers on the day of her

arrest.

Nevertheless, despite considerable

evidence which, in our view, would lead

“

EEE A

to a finding of probable cause,in light

of Patzig, we cannot say that the trial

judge, on the record before him, could

summarily decide the issue of probable

cause. To the extent that the presence

or absence of probable cause depended

on the resemblance of Deary to the bank

surveillance photographs taken at the

time of the robbery, the question

necessarily becomes a factual one for

jury determination. Nor does the fact

that Deary's physical characteristics

resembled that of the woman who robbec

the bank change our conclusion that

those facts, too, were for jury

consideration. Moreover, even

Deary concedes that she was "jo

when the officers apprehended h

whether that activity gave the

reasonable perception of flight is

also a matter which must be left t

the judgment of the jury to take 1

account together with such

considerations as the speed at whicn

she was "jogging”™ (running), her

overal] demeanor, and the other

aspects of her appearance.

To grant judgment for t

police officers at his junc

therefore, would be to usur

which a jury must play in fact finding

-- here, determining the ultimate fact

of probable cause or the iack of 1

_ Deary v. Three Un-named Police Officers ,

~ 746 F.2d at 191 (footnotes omitted).

\ -

\ n ignt of tnese cases, it is clear

that an appellate co can find probable

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Third,

questionable rel

much of

majority, howev

on the dog's ab

residential! are

scene. U Cc

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.—

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(

Ln)

1 f3)

-rsr

LracK

"$s

was

The major

at the police

scent, ‘led

car.” The

more reliance

a track ina

ficers on tne

lexander, the

police dog,

feel he could

on the track.

gasoline, any

ana Ne scent

fere with the

446) TAUS,

pment, a jury

that the dog

ne ntruder

reasonably conclude that the dog track

was Inconclusive as to Warren's

culpability.

Finally, the majority points to the

fact that Warren attempted to leave the

area when ne saw a police o

Warren explained at trial that he started

to turn his car around pecause tnere wer

- + -_ ~~ on ae - + ~ £

a {to .@) DO Ce Cars at ne corner o

20th & C Streets, and he w nteq to avoid

“the mess." (T. 18). As stated in the

Deary case, wnetner this activity gave

the reasonable perception of 19Nt is a

matter which must be ‘left to the judgment

Of the jury

Tnese facts, taken as a whole, are

not susceptible of only one inference A

Jury could reasonably draw the conc!iusion

that the gescription of the intruder was

too general, the qcog track ere

Unreliable, and tne attempt to eave the

area too amb 1guous to constitute

objective evidence of probable cause.‘

In section B of its opinion, the

majority states, "We thus must determine

whether the facts available to the

officers objectively gave rise to

probable cause to arrest Warren for

attempted burglary.’ Assuming, witnout

deciding, that this objective standard 15

appropriate, it remains clear that it ‘5s

not for this Court to sit as fact-finder,

as the majority clearly does.°®

4The case cited by the majority as

support are inapposite, as they are cases

in which courts had to directly review

criminal arrests. None of the cases

involved factual determinations by = an

appellate court in section 1983 suits.

Sin section C of the opinion, tne

majority concludes that probable cause

existed to warrant Warren's” arrest for

attempted burglary. The majority does

not say that probable cause exists

because the facts are susceptible to oni

one reasonable inference. nu

conclusion can only be categorize

statement of fact.

—

> Eero

In light of the fact that we cannot

nor should not say that probable cause

existed as a matter of law, this Court

should refuse to consider the issue

raised py the appellees for the first

time in its brief on rehearing en banc.6é

6 Th Supreme Court of the United

States has stated that "[t]he matter of

what questions may be taken up and

resolved for the first time on appea! is

one left primarily to the discretion of

the courts of appeals, to be exercised on

the facts of individual cases."

Singleton v. Wulff, 428 U.S. 106, 121, 49

«SG. 26. 326, 86> “3. Ce. 2868, 49 L.Ed.2d

826 (1976) (federal appellate court is

justified in resolving an issue where the

proper resolution is beyond any doubt, or

where an injustice might otherwise

result). In Singleton, the Supreme Court

chastised this Court, Nowever, for

addressing an issue on the merits when

one party had had no opportunity to

develop or defend its position on the

issue at trial level. Lae, This Court

has held, as a general rule, that we wil]

not consider arguments. or theories on

appeal that were not advanced in

proceedings below, unless the issue can

be resolved as a matter of law, the

pertinent record nas been fully

developed, and the opposing party had

notice that the specific issue would be

raised. Wright v. Newman, 735 F.2d a ge ee

1076 (8th Cir. 1984).

-39

lf the majority feels compelled to reach

the probable cause issue, the most it

should do is remand the matter to the

district court with directions for a new

trial, at which time both parties would

have an opportunity to present evicence

on the issue. The district court then

should submit the issue to the jury with

appropriate instructions unless it found

the evidence insufficient to create a

jury question.

The appellees asked tnis Court to

reverse the panel decision on the issue

of pretextua|! arrest ard qualified

immunity. As the majority does not rest

its decision on either of these lega!

theories, | will not repeat my discussion

in the panel opinion, except to say that

| continue to believe that it correctly

states the law in this Circuit.

| must, however, comment on Neb.

Any

-U

Stat. Rev. Section 29-427 and the

appellees’ interpretation of it.

Neb. Rev. Scat. Section 29-427

provides in pertinent part:

Peace officer; grounds for

arrest; detention of accused;

grounds. Any peace officer naving

grounds for making an arrest may

take the accused into custody or,

already having done so, detain him

further when the accused fails to

identify himself satisfactorily, or

refuses to sign the citation, or

when the officer has reasonable

grounds to believe that * * *(3)

such action is necessary in order to

carry out legitimate investigative

functions * * %,

Neb. Rev. Stat. Section 29-427 (1983).

Nad no probable cause to arrest Warren

for attempted Durglary, section 29-427T( 3)

gave them the authority to make an arrest

based on the traffic warrant and to

detain Warren for questioning with regard

to the separate crime of attempted

burglary. Not only 1s such an

interpretation contrary to the plain

language of the statute, but it also

renders the statute unconstitutional.

As | read this statute, a police

officer may detain anyone legally

arrested if the officer reasonably

believes it necessary to further

investigate that person's role in the

crime for which he was arrested. !t does

not grant police the power to make a

legal arrest and to detain that person

for questioning with regard to a separate

crime when there is no probable cause to

make an arrest for that crime. Neither

the language of provision (3) nor the

overall | tenor of the statute warrants

such a sweeping interpretation.

Furthermore, the appellees’

interpretation would render Neb. Rev.

Stat. Section 29-427 unconstitutional.

Police are not permitted to hold someone

in custody beyond the time necessary to

process him with respect to the crime of

arrest for the sole Purpose of trying to

connect that person to another crime. To

do so is an unlawful seizure. See Adams

vy. United States, 399 F.2d 574 (O36. Cie,

1968), cert. denied SUBD nom. Roots y.

United States, 393 U.s. 1067, 89 S.Ct.

ted, 21 &. 8622 Fis (1969). In Adams,

individuals arrested for robbery, brought

to the Robbery Squad _offices at Police

Headquarters at 2:00 p.m. and booked at

4:00 p.m., were then PUT IN lineups for

other crimes as to which there was no

Probable cause to arrest or to detain

them. The court excluded the results of

the lineups as the incident of an

unlawful arrest and custody for

interrogation. The court explained:

Here, the lawful basis for

appellants’ arrest and detention

rested solely on the probable cause

for the belief that they had committed

an attempted robbery on November 5 at

the North Carolina Avenue store.

There was no probable cause to detain

them under arrest for other matters.

Rule 5(a) provides that presentment

without unnecessary delay shal] be made

on the charge for which they were

arrested. To continue their custody

without presentment for the purpose of

trying to connect them with other

crimes is to hold in custody for

investigation only, and that is

illegal; its operative effect is

essentially the same as a new arrest

and, if not supported by probable

cause, it is an illegal] detention.

x * * *

On the precise facts shown Dy this

record, we think the effect of Rule

5(a) is to convert at least as of

4:00 p.m. ib the afternoon of

appellants’ arrest, their continue

detention at the police station in

an unlawful arrest without probab’

cause in respect of the crime for which

they were convicted.

“x @ BS

An arrest made on probable cause can

bring a man lawfully into the hands of

police, but that detention does not,

absent compliance with Rule 5(a),

continue to be lawful for a!1 purposes,

including the investigation of his

possible connection with other crimes.

399 F.2d at 577-78 (footnotes omitted) ;

see United States v. Poole, 495 F.2d 115,

leas §6 | §©6t(®.Gy SIF. 1974) (Leventhal, ies

concurring) (unnecessary delay after

arrest is evidence of involuntariness)

cert. denied, 422 U.S. 1048, 98 $.Ct.

2667, 45 L.Ed.2d 701 (1975); Commonwealth

v. Lumb, 430 A.2a 1188, 1190 (Sup.ct. Pa.

1981).

The words of former Chief Justice,

then Judge Burger, in his concurring

Opinion are instructive:

To my mind, the importance of the

investigation of crimes other than

that for which the original arrest was

made is not that there may be something

resembling a new “arrest,” but that the

period of “unnecessary delay" forbidden

by Fed. R. Crim. P. 5(a) has then been

reached. Necessary delay can

reasonably relate to time to

administratively process an accused

with booking, fingerprinting and other

steps and sometimes even to make same

limited preliminary investigation into

his connection with the crime for which

he was arrested, especially when it jis

directed to possibly exculpation of the

one arrested. However, when delay of

presentment to the magistrate is for

the purpose of investigation of other

crimes, then there is no doubt that the

“delay” has become "unnecessary."

Adams _v. United States, 399 F.2d at 579

(Burger, J., concurring) (empnasis in

original).

| believe that holding a= person

beyond that time necessary to process him

for the crime for which he was arrested

that person

investigate

“

ndment

Ame

rim

‘

an or

S enw,

00)

trarric warrant for the purpose of

investigating the attempted burglary is

not justifiable under Neb Rev. Stat.

section 29-427 and would constitute an

unlawfu seizure based solely on

reasonable Suspicion o f the sort

prohibited in Dunaway Vv. New York, 442

J.os euu, 2s S2ce 2248, 60 L.Ed.2d 824

(1979) and Florida Royer, 460 U.S.

491, 1S «6-3. Ct 1319, fe L.€¢.26 -225

(1983).?

A true copy

Attest:

ChLonmnk; w.s COURT OF APPEALS,

EIGHTH CIRCUIT

’The normal procedure for processing

a person who fails to appear for a

traffic violation entails taking him to a

correction officer, booking him, setting

bond and releasing him promptly upon

payment of bond. The jury should have

been instructed that if Warren was held

beyond the time necessary to process him,

tnen the detention was an unlawful one

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went back to her vehicle to conduct a

warrant check. She called the police

dispatcher and provided the dispatcher

with Warren's name, race, sex, and date

of birth. She was told Warren had a

for

confirmed warrant for his. arrest

speeding and failing to appear on the

citation. Myers then arrested Warren,

conducted a pat~-down search, and put him

in the backseat of her vehicle. Myers

drove Warren to the jail complex.

At the jail, Myers turned Warren

over to Detective James Breen who was

investigating recent sex-related

burglaries in the southwest area of the

City, Myers testified that she turned

him over to Breen because she believed

Breen could connect Warren to these

burglaries.

Breen detained Warren and questioned

him extensively on his persona |

background. At the outset of the

questioning, Warren asked Breen whether

he was under arrest and why he was being

questioned. Breen told Warren that ne

was being detained and questioned because

he was a suspect in the reported burglary

attempt. Warren was not given 4 Miranda

warning. Warren asked to speak with a

lawyer and Breen informed him that he did

not have a right to a lawyer because he

was not formally accused of any crime.

Warren then asked to make a telephone

eatt. This request was also denied.

Breen grilled Warren with respect to his

whereabouts that evening, his explanation

for the guard dog tracking to his car,

and his sexual history. When the

interrogation ended, he was

fingerprinted, handprinted, and

photographed by Sergeant David Beggs.

Warren was released at 6:30 a.m. after

posting bond on the traffic warrant.

Thereafter, Warren filed this

section 1983 action against the City and

Officer Myers, Sergeant Begss, and

Detective Breen. The complaint alleged

that the police officers, pursuant to

police department policy, violated

Warren's constitutional rights py

arresting him without probable cause on

April 13, 1985, taking him to the police

department, falsely imprisoning him,

subjecting him to harassing, crude, anc

lengthy interrogation without granting

his request for counsel, Fingerprinting

him, and photographing him numerous

times. The complaint further alleged

Warren suffered severe emotiona!

distress, mental pain, and psychologica’!

damage as a result of the intentiona!

acts of the defendants and sought

$100,900 in damages from each of the

individual officers and from tne Cite:

After a three-day trial, the jury

returned a verdict in favor of the

defendants. The trial court denied

Warren's post-trial motions challenging

the verdict; this appeal followed.

The issues on. appeal are: )

whether the ria court erred in

instructing the jury that Warren had been

arrested for a traffic violation when

there was evidence that in fact he had

been arrested as a suspect in oan

attempted burglary; 2) whether the trial

court erred in instructing the jury as to

the law of custodial arrest and

interrogation; 3) whether tne triai ¢ourt

misinstructed the jury on the law of

qualified immunity; and 4) whether the

trial court erred in dismissing, at tne

close of the appellant's case-in-chief,

the complaint as to the City of Lincoin

and Officer Myers. We agree that the

court erred in instructing the jury and

in dismissing the City and the arresting

officer, and remand for a new trial

il. ANALYSIS.

A. The Arrest and Detention

The first issue is whether the tria!

court's "Due Process of "aw" instruction

'That instruction states in fu

The Fourteenth Amendment to the

Constitution of the United States

provides that no state shal! deprive any

person of nis liberty without due process

of law. The “liberty” of the individual,

which the Constitution thus secures ard

protects, is not an absolute and

unqualified freedom or privilege to do as

one pleases at all times and under a?)

circumstances, but is subject always to

reasonable restraints including, of

course, such restraints as are imposed by

law.

After the arrest of the plaintiff in

this case and the taking of him to the

county-city jail, the police officers had

a reasonable period of time in which to

do whatever was reasonably necessary to

process the plaintiff with respect to the

offenses for which he was arrested. He

was arrested for speeding and failing to

appear In court In connection with the

ns |

charge of speeding. During that time the

officers properly could question Jackson

Warren, examine his hands and shoes,

photograph him and take his fingerprints,

and otherwise subject him to

investigation regarding an offense of

attempted burglary or any other offense

that the officers then had under

investigation. The officers, hnowever,

could not properly detain Jackson Warren

beyond that period of time reasonabie

necessary to process Jackson Warren with

respect to the offenses of speeding and

failure to appear, unless they had

reasonable grounds to believe that such

action was necessary in order to carry

— out legitimate investigative functions.

if they detained him beyond that time

without such reasonable grounds, then

detaining him beyond that time was a

violation of Jackson Warren's

constitutional right not to be deprived

of his liberty without due process of

law.

Processing Jackson Warren with

respect to the offenses of speeding and

failing to appear properly could include

recording information about Jackson

Warren, such as name, address, and

identifying characteristics, completing

ordinary paperwork, and allowing him to

arrange for and post bail.

if the officers had sucn reasonable

grounds, they properly could detain

Jackson Warren for a reasonable time to

question him and otherwise to carry out

legitimate investigative functions.

was correct. In that instruction, the

court told the jury that Jackson Warren

“was arrested for speeding and failing to

appear in court in connection with the

charge of speeding” and that "the

officers could properly detain Warren

beyond that time necessary to process him

with respect to that offense if they had

reasonable grounds to believe that such

action was necessary in order to carry

out legitimate investigative functions.”

Warren's challenge to this

instruction is two-fold: 1) it

erroneously advised the jury that Warren

The Fourteenth Amendment to the

Constitution also protects a person's

right to counsel]. A person who has been

arrested and taken into custody for

speeding and failing to appear on a

charge of speeding has a right to obtain

counsel. Preventing a person so arrested

and in custody from obtaining counse!

upon request is a denial of the right to

counsel.

was arrested for failing to appear on a

traffic warrant instead of submitting the

issue of the reason for the arrest to the

jury; and 2) it inaccurately defined the

terms under which the police could

lawfully detain Warren.? We fined the

instruction faulty on both grounds.

1. Pretextual Arrest.

First, the record is replete with

evidence from which the jury could nave

determined that the arrest of Warren on

the traffic offense was but a pretext to

get him into custody for questioning

regarding the attempted burglary and sex-

2Warren objected to the instruct7on.

He did not, however, specifically object

to the instruction on the grounds that it

did not address the issue of pretextual!

arrest. Nevertheless, it was incumbent

upon the trial court to properly frame

the instruction once it was put in issue.

Katch v. Speidel, Division of Textron,

ing., t46 *:28 “3385 1139 (6th Cir.

1984); Celanese Corp. of America vv.

Vandalia Warehouse Corp., 424 F.2d 1176,

1181 (CTtn Cir. teres,

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seizure wer ¢ neig . SOnst

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aitercation, police seizec mariju

Taglavore, and ne was sudsequent

and convicted. On appeal,

reversed and remanded, reasoning

police used the traffic warran

sv)

excuse to search the appellant

marijuana cigarettes and ne

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wihere the arrest

Ont being used as a

search, the arre

SUING search are

- The facts whic

aracterization of

tne traffic war

cluded |) routine o

affic offenses

rmally taken into

tne officers t

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sumed tnat _aope

garettes in his DO

'eave

inference than that

was done with the +

warrant here. Were

Misdemeanor arrest

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permitted, a mockery could be

made of the Fourth Amendment

and its guarantees. The courts

must be vigilant to detect and

prevent such misuse of legal!

processes.

291 F.2d at 266.

Lefkowitz and Taglavore present

situations where an arrest warrant is

executed to justify an otherwise unlawful!

search as a searcn incident to that

arrest. Nonetheless, we find the

reasoning of both cases applicable in the

context of an arrest warrant executed for

the purpose of justifying detention and

interrogation for another crime under

investigation.

Applying the aw to the facts of

this case, we believe the actions of the

police in arresting Warren may have

violated the fourth amendment. The jury

could we have found that Warren's

arrest was improper ly motivated,

undertaken not in furtherance of

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Thus, although the police concede they

did nct have probable cause to believe

Warren had committed the crime, it is

clear that they had reasonable suspicion

based on his physical appearance, the

location of the vehicle, his turn around

upon their approach, and Lhe dog track to

justify an investigatory stop pursuant to

Terry v. Ohio, 392 U.S. 1 (1968).

Warren's driver's license. Fin

outstanding warrant, trey could have

arrested him for the traffic violation

and processed him through normal! channels

oursuant to tnat warrant.

a question here whether that was their

purpose or whether they arrested nim so

3Norma’ procedures would nave

entailed taking Warren to correction

officers, booking him, setting bond and

releasing him promptly upon payment of

bonc.

that they could bring him to police

Neadquarters and question him about that

evening's attempted burglary and the

recent sex-related burglaries. The

evidence shows’ that interrogation about

the burglaries may have been the reason

for the arrest. For example, Myers

Drought Warren to the jai comp 'ex and

Immediately turned him over to Detective

Breen, whom she had in the past aided in

Investigating the sex-related burglaries.

in her testimony, Myers explained why she

turned Warren over to Breen: "' just

felt that further questioning by somebody

who was more familiar with the cases [the

other burglaries] themselves could

eliminate or possibly give us further--a

further suspect in the cases.”

Myers never told Warren why he was

being detained and questioned. Warren

waited approximately fifteen minutes

before he was led to an interrogation

room by Detective Breen. Breen testified

at his deposition as to why he

interrogated Warren:

Well,* * ¥*some officers had

indicated that the police dog

had made what they felt was

a less than satisfactory

trail to his car, * * * a

trail that they didn't

feel comfortable arresting

him for the offense based

solely on the track and they

therefore made contact with

him in the car and they had

a warrant and they knew that

| was involved in * * *

investigating * * ¥* several]

attempted sexual assaults

* * * that would technically

be categorized as burglaries

that we thought were sexually

motivated burglaries and |

guess it was their feeling

that it might be beneficia!

for me to talk to him

reference those cases.

Breen initially asked Warren for his

name and address, about his work and

schooling, where he was that evening and

who he had been with. But there is

evidence to indicate that the purpose of

the detention was not limited to the

outstanding traffic infractions. Warren

asked if he was under arrest, and Breen

said that he was. When Warren asked what

he was being questioned for, he was told

a “prowling incident." When he asked to

Speak to a lawyer, Breen told Warren that

he did not have a right to a lawyer unti]

ne was formally accusec of being a

prowler. When Warren then asked to make

a telephone call, Breen informed Warren

that he would have to wait to make his

call until Breen was through questioning

him.

Furthermore, in the middie of

questioning Warren, Breen abruptly turned

to the Subject of Warren's’ sexual

preference. According to Warren, the

interchange was. as follows: Breen

queried: “Warren are you gay?" Warren

asked him why he asked that question.

Breen replied that he had been in the

business fifteen years and could pick up

on these things. When Warren asked him

what he meant, he said You people have

your way of walking and talking

differently. What it 1s, your theater

background?" Warren said, “So you're

saying that the Lincoln Police Department

bases their decision on sucn

assumptions? Breen got mad and said,

"Just answer the question, Warren. Are

you gay or not.” Warren told Breen ne

‘could give him the names and addresses

and telephone numbers. of several women

throughout the City who would say whether

he was gay.”

That Warren may have. been arrested

for investigative purposes rather than on

the traffic warrant is further evidenced

by the testimony of Sergeant David Beggs.

Beggs, a ballistics expert who had seen

at the scene of the attempted burglary

gathering evidence, arrived at the jai

at approximately 6:00 a.m. He testified

that he knew Warren was a suspect in the

attempted burglary under investigation:

Beggs: 1 knew that Mr. Warren had

been taken into custody.

@: As a suspect in this attempted

burglary?

Beggs: To a certain extent, yes.

Upon arriving at the jai!, Beggs went to

the room where Breen was questioning

Warren. Beggs testified that he examined

the bottoms of Warren's shoes and

Warren's hands "to see ‘f they were dirty

or had any trace evidence from the roof"

of the house where the attempted burglary

occurred. Breen then took Warren to the

identification bureau at the police

station. Instead of taking routine

prints of the tips of Warren's ten

fingers, as would be done for traffic

offenses, Beggs did extensive printing of

Warren's hands, including the palms, the

sides of the hands, and the sides of each

finger. Beggs explained that "[i]n some

cases, particularly in involved cases

[such] as a series of sexual assaults

that we've already talked with other

officers about, further hand prints are

desired because everybody when they grab

something dol[es] not necessarily grab it

with the end of their finger." Mug shots

and several] Polaroids were also taken of

Warren. Warren then asked if he coul

use the phone and if he was still a

suspect in the prowling incident. Breen

told Warren that he was no _ longer the

main suspect. After Breen left, Warren

went to the desk and was told he could

use the phone and could leave if he paid

$50.00. Warren posted bond and went

home. rs

On the basis of these facts, a jury

could have concluded that Warren's arrest

on the traffic warrant was nothing more

than a subterfuge or pretext executed to

get Warren into police headquarters to be

questioned about an unrelated matter and

as such was unlawful. Accordingly, the

trial court erred in not instructing the

jury on the law of pretextual arrest and

in dismissing the complaint as to Officer

Myers. On remand, the jury should be

Instructed on the law of pretextual

arrest.

2. Unlawful Detainment.

Even assuming that the Lincoln

Police arrested Warren for failing to

appear on a traffic warrant, the due

process instruction incorrectly stated

that the officers were justified in

detaining Warren beyond the time

necessary to process him on that warrant.

Police are not permitted to hold someone

in custody beyond the time necessary to

process him with respect to the crime of

arrest for the sole purpose of trying to

connect that person to another crime. TO

do so is an unlawful seizure. See Adams

v. United States, 399 F.2d 574 (D.C. Cir.

1968), cert. denied sub nom. Roots Vv.

United States, 393 U.S. 1067 (1969). in

Adams, individuals arrested for 4

robbery, brought to the Robbery Squad

offices at Police Headquarters at 2:00

p.m. and booked at 4:00 p.m., were then

put in lineups’ for other crimes as to

which there was no. probable cause to

arrest or detain them. The court

excluded the result of the lineups as the

incident of an unlawfu } arrest and

custody for interrogation. The Court

explained:

Here, the lawful basis for

appeliants' arrest and

detention rested solely on the

probable cause for the belief

that they had committed

an attempted robbery on

November 5 at the North

Carolina Avenue store. There

was no probable cause to detain

them under arrest for other

matters. Rule 5(a) provides

that presentment without

unnecessary delay shal! be

made on the charge for which

whey were arrested.* * ¥*To

continue their custody without

presentment for the purpose of

trying to connect them wit

other crimes is to hold in

custody for investigation

only, and that is illegal;

its operative effect is

essentially the same as a

new arrest and, if not

supported by probable cause,

it is an illegal detention.

x * * *

On the precise facts shown by this

record, we think the effect of

Rule 5(a) is to convert at least

as of 4:00 p.m. on the afternoon

of appellants' arrest, their

continued detention at the police

station into an unlawful arrest

without probable cause in respect

of the crime for which they were

convicted. If is not, thus, the

precise scope of the Mallory

exclusionary rule which is

determined here but, rather,

the sweep of the general policy of

excluding evidence gathered

during a period of detention

following upon an unlawful

arrest.

* *« * *

The concept of what is, in legal!

contemplation, a “divisible

detention" is not, in our view

extra-ordinary. Indeed, it seems

to be a necessary one if the

subversion of the purposes of

Rule 5(a) is not to be made

the handmaiden of the constitu-

tionally defective arrest for

investigation.

399 F.2d at 577 (footnotes omitted). See

United States v. Poole, 495 F.2d 115, 125

(0.¢C. Cir. 1974) (Leventhal, cP

concurring), cert.denied, 422 U.S. 1048

(1975); Commonwealth v. Lumb, 430 A.2d

1188, 1190 (Sup. Ct. Pa. 1981).

The words of former Chief Justice,

then Judge Burger in his concurring

opinion are instructive:

To my mind, the importance of

the investigation of crimes other

than that for which the original

arrest was made is not that there

may be something resembling a new

“arrest,” but that the period of

"unnecessary delay" forbidden by

F.R. Crim. P. 5(a) has then been

reached. Necessary delay can

reasonably relate to time to

administratively process an

accused with booking, finger-

printing and other steps and

sometimes even to make some

limited preliminary investiga-

tion into his connection with

the crime for which he was

arrested, especially when it

is directed to possible excul-

pation of the one arrested.

However, when the delay of

presentment to the magistrate

is for the purpose of investiga-

tion of other crimes, then there

is no doubt that the “delay” nas

become “unnecessary.” [Emphasis

included. ]

399 F.2d at 579.

We find the rationale of the Adams

Court persuasive. Thus, assuming that

the arrest was proper, the jury could

have found the detention for the purpose

of trying to connect Warren with the

attempted break-in was illegal]. The jury

could have found that the detention was

an unlawful seizure based solely on

reasonable suspicion of the sort

prohibited by Dunaway v. New York, 442

U.S. 200 (1979), and Florida v. Royer,

460 U.S. 491 (1983).

The jury should have been instructed

that if they found that Warren was held

beyond that time necessary to process him

with respect to the traffic warrant to

investigate him about the attempted

burglary, a crime which all three

officers admitted that they did not have

probable cause to hold Warren on, then

that detention was an unlawfu! one.

B. Qualified Immunity.

The second issue is whether the

trial court's qualified immunity

instruction was erroneous.‘

4The trial court deliverec the

following qualified immunity instruction:

if it is determined that a defendant

in the course of his duties did violate

Jackson Warren's constitutional! right to

due process of law, as defined by these

instructions, that defendant nevertheless

will have a complete defense to his

actions in this suit, if he shows by the

greater weight of the evidence that in

carrying out his duties with reference to

the conduct involved in the case he had

to exercise judgment and discretion and

that his conduct was in good faith. Good

Jackson Warren contends that the

instruction erroneously omitted the

objective component of the qualified

immunity defense. Warren's objection

misses the mark because the instruction

does contain an objective component.

Nevertheless, because this case must be

retried, we now make it clear that the

question of whether the defendants are

entitled to qualified immunity is a

question of law to be determined by the

trial court.

7 -

in Harlow v. Fitzgera!d, 457 U.S.

800 (1982), the Supreme Court estab!ished

an objective test to determine if an

faith means without malice and reasonably

believing that what is being done is

lawful under all the circumstances then

known or which reasonably should have

been known. A police officer does not

act in good faith if he knows or, as 4a

reasonable police officer, should know

that his acts probably will result ina

deprival of someone's constitutional

rights.

official is entitled to qualified

immunity. if the plaintiff alleges facts

that demonstrate a constitutional

violation, the court may determine, at

the summary judgment stage, whether the

alleged conduct violated clearly

established law of which a reasonable

official would have known. 457 U.S. at

818. Once a court determines as a matter

of law that a legal standard governing

the governmental action at issue was

clearly established, there is no

qualified immunity. The factual question

whether the officer's conduct vio’ated

the established constitutiona! standard

is resolved by the jury at trial. See

Davis _v. Scherer, 468 U.S. 183 (1984);

Mitchel! v. Forsyth, 472 i Sil,

(1985), Creighton v. City of St. Paul,

T66 F.2d 1269 (8th Cir. 1985),

cert.granted sub nom. Anderson Vv.

Creighton, i. # , G6 $.Ct.. 3292

(1986);5 Liaguno v. Mingey, 763 F.2d

1560 (7th Cir. 1985) (en banc),

cert.dismissed, U.3. , ee 2.08. 16,

92 L.Ed.2d 783 (1986); and Moore vy

Marketplace Restaurant, ine. fa4 *.2¢

1336 (7th Cir. 1985).

The district judge in Liaguno

instructed the jury on the issue of

immunity: “The law allows a defendant to

defend a charge of unconstitutional entry

faith belie

by claiming a_e good

under the circumstances, 1t was

reasonable to enter the Liaguno house

without a warrant. The defendant also

Sin its appea! to the Supreme Court,

the government argues that the existence

of a settled legal principle is not

dispositive of an immunity defense. It

argues that a second question must be

csked before immunity will be determined

and that is whether the official

reasonably should have known that his

& eA

conduct was unlawful under the particular

circumstances.

y Le,

~~ &

must

was

directed the court on remand to determine

the

prove that such good faith belief

reasonable.’

The Seventh Circuit found error and

issue of immunity:

The issue of immunity is

redefined in Harlow is

whether wnen the defendant

violated the plaintiff's

rights the law appeared to

authorize the defendant's

misconduct. This is an issue

of law, for the judge to decide.

What the defendant believed, an

issue of fact, is neither here

nor there. The good sense of

Harlow in withdrawing the issue

of immunity from the jury 1s

particularly evident in a case

such as this, where the police

are charged with having acted

without probable cause. The

question whether they had

probable cause depends on what

they reasonably believed with

reference to the facts that

confronted them, as the judge

instructed in the passage we

quoted earlier. To go on anc

instruct the jury furtner that

even if the police acted without

probable cause they should be

exonerated if they reasonably

(though erroneously) believed

that they were acting reason-

ably is to confuse the jury and

give the defendants two bites of

the apple.

Llaguno, 763 F.2d at 1569.

Senior Judge Floyd R. Gibson, of

this Circuit, expressed a similar view in

Moore v. Marketplace Restaurant, 754 F.2d

at 1361. Judge Gibson, concurring with

Judge Posner on this point, stated:

The question of [the police

officers’ immunity may be

decided as a matter of Jaw

and need not be submitted

to the jury. It is clearly

established that the Fourth

Amendment requires that officers

have probable cause for an

arrest. Thus, if in this case

there was no probable cause

for the arrests, an issue to

be determined by the jury,

then there is no immunity

under Harlow, for the official

defendants.

Because we agree with the en banc

decision of the Seventh Circuit, we hold

that it is for the trial court in this

case to determine whether the officers

are entitled to qualified immunity.

On remand, the jury should initially

determine under proper instructions

whether the arrest of Warren was 42

pretext employed to gather evidence of

unrelated crimes. \f the jury determines

that it. was a pretext, then the district

court should determine whether the law

prohibiting pretextua| arrests was

clearly establishec <1 1985.§& i? the

jury finds that the arrest was not

pretextual but rather a lawful arrest

pursuant to a traffic warrant, then it

should determine whether Warren was

detained beyond the time necessary to

process the traffic offense for

questioning on an unrelated matter.

the Sury determines that he was so

detained, then the district court should

determine whether the law prohibiting

such a detention was clearly established

6See United States v. Lefkowitz, 285

U.S. 452 (1932); Taglavore v. United

States, 291 F.2d 262 (9th Cir. 1961).

in 1985.' The jury should finaity

determine whether the officers continued

to question Warren after he requested

counsel. lf it answers this question

affirmatively, then the district court

should determine whether the law

prohibiting continuec custodia!

questioning after request for counse! was

clearly established in 1985.8

C. Municipal Liability.

Warren's final argument is that the

district court erred in dismissing the

complaint as to the City of Lincoln with

prejudice at the close of his case-in-

chief. Warren asserts that the jury

could have found liability on the part o:

7TSee Dunaway v. New York, 442 U.S.

200 (1979); Adams v. United States, 399

F.2d 574 (D.C. Cir. 1968), cert.denied

sub nom. Roots v. United States, 393 U.S.

1067 (1969); Neb. Rev. Stat. Section 29-

427.

8See Edwards v. Arizona, 451 U.S.

477 (1980).

the city because he proved at trial,

through the testimony of the chief of

police, that the City of Lincoln failed

to train its police officers properly and

that this failure caused his injuries.

Municipalities may be sued “for

damages under section 1983 when "the

action that 1s alleged to be

unconstitutional implements or executes a

policy statement, ordinance, regulation

or decision officially adopted and

promulgated by that body's officers" or

is “vietted pursuant to governmenta!

‘custom' even though such a custom nas

not received formal approval! through the

body's officiai decisionmaking channels.

Monell v. New York Department of Socia

Services, 436 ine 658, 690 (1978).

Municipalities are in no way immune from

liability from constitutional violations.

Owen v. City of tndependence, 445 U.S.

622, 657 (1980). lf a municipality fails

to train its police force, or if it does

SO in a grossly negligent manner so that

RY inevitably results in police

misconduct, the municipality may fairly

be said to have authorized the

Violations. Patzner yv. Burkett, 779 F.2d

1363, 1367 (8th Cir. 1985); Kibbe v. City

of Springfield, 777 F.2d 801, 804 (lst

Cir. 1985), cert.dismissed sub. nom. City

of Springfield v. Kibbe, |e. F

1a? .4. St. 1114 (1987); Herrera v.

Valentine, 653 F.2d 1220, 1224 (8th Cir.

1981); Leite v. City of Providence, 463

F. Supp. 585, 590 (D. R.I. 1978).

Here, Chief Of Police 8B. Dean

Leitner testified that he was responsible

“for the administration of the Lincoln

Police Department, the perpetuation of

all rules and regulations, policies and

procedures, and adherences to them."

Leitner testified that pursuant to

Lincoln Police department policy,

officers were trained to detain

individuals arrested for traffic

violations for questioning regarding

other matters under’ investigation. He

testified: a

lf an officer has reasonable

grounds to believe that the

individual may be involved in

some other offense he

certainly would interview

the person regarding that.

That may occur immediately

following the arrest and

quite often individuals

are taken from the corrections

facility following their

incarceration and further

interviewed pertaining to

a case under investigation.

Leitner also stated that a police

officer should take an individual into

custody to question him if the officer

has reasonable suspicion that that

individual committed a crime:

fit]Jt's the duty of a police

officer, if there is reason-

able suspicion, to determine

whether or not that individual

is responsible for that

criminal offense. He has an

equal duty to gather evidence

that will free that individual,

prove his innocence, as he does

to prove his guilt.

Q. What should the officer do, then?

A. Interview him.

Q. Are you saying interview him

where the individual is found?

A. No, |'m not saying that.

Q. What should the officer do with

respect to interviewing?

A. \f he has reasonable suspicion he

should take--detain him for questioning

either there, or, if necessary, at police

headquarters.

Q. He should take him into custody?

A. For the purpose of interviewing,

yes.

At the very least, these portions of

of Leitner's testimony put into issue the

question of whether the Lincoln police

department failed to properly train its

officers, and thus it was error for the

trial court to dismiss the complaint as

to the city. On remand, the jury should

be properly instructed on the issue of

municipal liability.

Reversed and remanded for a new trial

consistent with this opinion.

A true copy.

Attest:

LERK, U.S. COURT OF APPEALS,

E!GHTH CIRCUIT.

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