Opposition Brief — Warren v. City of Lincoln

——,

l Supreme Court, US.

> FILED

No. 88-1633 MAY 1

: epi k SPANIOL, JR,

i

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.

»

BRIEF OF RESPONDENTS IN OPPOSITION TO

THE PETITION FOR WRIT OF CERTIORARI

>

RICHARD D. Sievers of

Bruckner, O’Gara, Keating,

Sievers & Hendry, P.C.

530 South 13th Street, Suite A

Lincoln, Nebraska 68508

(402) 475-8230

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

SSA ne RO COS i ETO - cm et nn a,

QUESTION PRESENTED FOR REVIEW

In a civil rights action is it proper for the Court of

Appeals to apply an objective standard and determine

that the arresting officers had probable cause for the

arrest, despite the officers’ subjective belief that probable

cause was lacking.

li

TABLE OF CONTENTS

Page

Question Presented for Review ..................-- i

Table of Contents... .<654.4.+334055555 eee ii

Table of Authorities ........5<00snueee eee iv

Statement of the Case . .. 4 666.335 4005 eee 1

Summary of Argument ......+.s:ssysans eae eee 5

Argument:

I. Introduction. .. .. .2sss5+000ceee eee 7

II. Arrest is the deprivation of liberty and when

II].

IV.

VI.

an individual is arrested, he cannot be arrested

a second time since his liberty has already

been lost. : ...sscecsdeka5ee eee

Under Nebraska law, identifying physical

characteristics such as prints or photos may be

taken from one lawfully arrested, and in a

civil rights action, the motive of the officer

taking the items is immaterial...............

It is a matter of discretion for the appellate

court to determine the issues it shall hear and

decide, and when the opposing side has had an

opportunity to develop evidence on the issue

at trial, it is not error for the appellate court to

hear the issue. ....<<svacusasus eee

When the facts on probable cause are uncon-

troverted, the court should decide probable

cause as a matter of law in a 40 U.S.C. §1983

action where the police officer is entitled to the

defense of qualified immunity................

There is no clearly established constitutional

right which was violated by any of the respon-

GON... 0. cent cesses whens ee eee

12

13

16

VII.

VIII.

IX.

ili

TABLE OF CONTENTS - Continued

Page

Detention is materially different than an

arrest, and detention and questioning on rea-

sonable suspicion is lawful so long as the

length of detention and the scope of question-

ing are reasonable under the particular cir-

CURIE EB cc ccc cnet se seeessessaens

An arrestee has no constitutional right to have

Miranda warnings given to him and there is no

42 U.S.C. §1983 action for any such failure to

When the courts cannot agree about the law

applicable to an essentially undisputed fact

situation, then the law is not clearly estab-

lished to the point that §1983 liability can be

imposed on a police officer. .................

RS a

21

23

24

26

iv

TABLE OF AUTHORITIES

Page

CASES

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

Us fils oe Sed Cee eka ee EERE REE RN 11

Anderson v. Creighton, 97 L.Ed.2d 523 (1987)

PPT reer Oy pr Piven er Ere Tre rr 9, 12, 19, 24, 25

Baker v. McCollan, 439 U.S. 1114 (1978).............. 12

Dunaway v. New York, 442 U.S. 200 (1979)........... 11

Garionis v. Newton, 827 F.2d 306 (8th Cir. 1987)...10, 11

Hampton v. Gilmore, 60 F.R.D. 71 (E.D. Mo.) aff’d

BOG F.2 1G0F GO OO, BTS oi sink cas se sca ds 24

Harlow v. Fitzgerald, 457 U.S. 800 (1982)...... 16, 19, 24

Heine v. Connelly, 644 F.Supp. 1508 (D.C. Del. 1986) .... 13

Kirby v. Illinois, 406 U.S. 682 (1972) ...............-- 24

Linn v. Garcia, 531 F.2d 855 (8th Cir. 1976)....... 15, 19

Schmerber v. California, 384 U.S. 757 (1968)........... 12

Singleton v. Wulff, 428 U.S. 106 (1976) ............... 14

State v. Starks, 229 Neb. 482, 427 N.W.2d 297 (1988) .10, 11

Terry v. Ohio, 392 US. 1 (1968)... ........02000005, 21, 22

United States v. Archer, 840 F.2d 567 (8th Cir. 1988) .... 18

United States v. Sokolow, 49 CCH S.Ct. Bull. B2003

OC ee | Aer rrr rr err ee Trey yer ee 22

Warren v. City of Lincoln, Nebr., 816 F.2d 1254

(1987) vacated, 864 F.2d 1436 (8th Cir. 1989) 15, 18, 24

STATUTES

Nebraska Physical Identifying Characteristics Act,

ge | Re een err yes eee tre 12

eS sss 6, 20, 23, 24, 25

No. 88-1633

a

bd

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.

,.

a a

BRIEF OF RESPONDENTS IN OPPOSITION TO

THE PETITION FOR WRIT OF CERTIORARI

a

4

STATEMENT OF THE CASE

At approximately 4:30 A.M. on April 13, 1985, Lin-

coln Nebraska police officers responded to an attempted

break-in near 15th and “C” Streets in Lincoln, Nebraska.

A man described as a slender white male, early 20’s,

white short-sleeved shirt (R 207:18-20; 243:8-10; Ex. 10)

had tried to get in a second story window to an apart-

ment, and was frightened away by the apartment’s occu-

pant. The intruder fled on foot toward the east (R

240:21-241:1).

Detective Sergeant David M. Beggs arrived at the

apartment to dust for fingerprints and to assist the officer

th

in charge of the investigation (R 245:5-246:6). Officer Scott

Alexander brought his police dog, Shane, to the scene (R

436:1-15). Officer Sandra Myers heard the call and came

to assist (R 180:19-20).

Officer Alexander put Shane on the scent where the

intruder had reportedly been. Shane began tracking east -

in the direction the intruder was seen fleeing (R

436:25-437:9). Shane tracked eastward toward the area

mid-block between 19th and 20th Streets - four blocks

and a few minutes from the crime (R 437:20-21). Shane

continued tracking toward and up to the car occupied by

Petitioner, Jackson Warren (R 438:18-439:5; 440:21-23). Mr.

Warren started his car and pulled into a driveway in

order to turn around and leave the area (R 52:5-8). He fit

the general description of the intruder (R 209:2-4).

Officer Alexander “flagged down” Mr. Warren and

asked for identification. Mr. Warren was asked to wait

momentarily, and Officer Myers had by this time arrived

in the area to assist. Officer Alexander then tried to put

Shane back on a tracking scent, but Shane would neither

track any further, nor leave the area (R 181:13-15;

441:18-442:9). This was not Warren’s neighborhood of

residence, and he was crying at the time of the stop.

Officer Myers obtained Mr. Warren’s driver’s license

and ran a computer check from her squad car (R

186:16-21; 187:23-24). The check revealed an arrest war-

rant for Mr. Warren for his failure to appear on traffic

offenses (R 190:14-25). Mr. Warren was arrested and taken

to the jail complex in Officer Myers’ squad car. He was

not handcuffed (R 56:12-13) or interrogated. A brief “pat-

down” of the outer clothing was performed before Mr.

Warren got into the squad car (R 195:12-15). While riding

in the squad car, Officer Myers mentioned a prowling

incident to Mr. Warren (R 48:23-49:1).

Upon arriving at the jail complex, Officer Myers

“checked in” her charge and contacted Detective James

Breen. Detective Breen, a 14-year veteran on the police

force, was described by Police Chief B. Dean Leitner as an

outstanding criminal investigator, an asset to the force,

and responsible for the solution of many very serious

crimes (R 150:2-12). Detective Breen had been working

for several months on a series of break-in/sexual assault

crimes. These crimes were sufficiently similar that Detec-

tive Breen believed the same person might be responsible

for all of them. The crimes were in specific geographical

locations, and they took place in the early hours of the

morning between midnight and 5:00 A.M. In most

instances, entry was gained or attempted through a sec-

ond-floor window, and the intruder, a young white male,

had sometimes been frightened away once the victim

awoke (R 198:24-199:1-5). The reported crime of April 13,

1985, was similar in several respects (R 267:17-269:2;

376:13-23).

Detective Breen decided to talk to Mr. Warren. He

asked him a few standard questions: name, address,

phone number, general background information. Mr.

Warren answered these questions. Detective Breen took

notes and told Mr. Warren he was being questioned in

connection with some prowling incidents (R 326:8-25; Ex.

4). Detective Breen intended to gain general information

about Mr. Warren in the event a personality profile in the

various sexual crimes under investigation was later

obtained. Detective Breen felt a conversation with Mr.

Warren might eliminate or confirm him as a suspect (R

313:2-19).

Mr. Warren expressed a desire to contact his parents’

attorney. Detective Breen replied that Warren “didn’t

have a right to an attorney yet” (R56:25), that he was not

being accused of anything, and that Warren didn’t have

to talk to Breen if he didn’t want to (R 202:5-7; 384:8-11).

Warren decided to answer Breen’s questions because he

was concerned about getting out of the police station in

sufficient time to get to work the next day (R 69:10-13).

Detective Breen did not intend to elicit any incriminating

information from Mr. Warren, and did not obtain any-

thing incriminating (R 64:8-12).

The conversation between Breen and Warren encom-

passed only a brief personal history, a brief explanation

of Mr. Warren’s activities over the past twelve hours, and

a brief explanation of Mr. Warren's activities in the area

when he was arrested (Ex. 4). The conversation was inter-

rupted several times when Sergeant Beggs asked Mr.

Warren to show him his hands or his shoes. Officer Beggs

had earlier fingerprinted the crime scene and made phys-

ical observation of the area (R 245:16-17). He was looking

for any trace evidence of the crime that may be present

on Mr. Warren’s shoes or body (R 253:1-16).

Detective Breen then took Mr. Warren to the police

department for fingerprinting and photographing (R

362:23-363:4). At no time was Mr. Warren handcuffed or

actually jailed. A set of fingerprints and photographs

were taken (R 225:18-25). Several days later, the finger-

prints were checked against the break-in crime scene at

15th and “C” and did not match. They were also checked

against one of the break-in/sex crimes that Detective

Breen was investigating, and did not match (R

397:2-398:14; Ex. 3). The photographs were never used (R

396:13-14; 403:13-15; 379:5-7).

Mr. Warren was released after posting bond. The

entire matter, from the initial stop to the release, lasted

approximately two and a half hours. Mr. Warren later

pleaded guilty to the charges which had generated the

arrest warrant, and then filed this lawsuit.

»

7

SUMMARY OF ARGUMENT

It is the Respondents’ position that this case involves

a factual determination that there was probable cause for

the arrest of Warren on the break-in charge. The dissent

in the Court of Appeals does not result from a materially

different view of the law but rather from a different view

of the conclusion to be drawn from undisputed facts.

There is no compelling issue of constitutional law, no

split in the circuits and no reason for the Court to take

this case.

Since an arrest is a deprivation of liberty, there can be

no “second arrest” of one who is already in lawful cus-

tody. The arrest warrant in this case provides the basis for

lawful custody. No additional legal basis to deprive Jack-

son Warren of his liberty is needed in view of that war-

rant. This is true even though the arresting officers also

considered him a suspect in another and unrelated crime,

the break-in. Nebraska law allows the taking of physical

characteristics such as finger and palm prints and photo-

graphs from those lawfully arrested. As Warren was law-

fully arrested on the traffic warrant, such items could be

taken from him, even though the officers’ motives in

doing so were to use them to try to establish Warren’s

guilt or innocence of a crime unrelated to the traffic

warrant.

Where the issue of probable cause for an arrest on the

break-in was explored at trial and Warren’s attorneys had

ample opportunity to introduce evidence on the issue, it

is not an abuse of discretion for the Court of Appeals to

consider and decide the issue. Where the facts surround-

ing probable cause are uncontroverted, the court should

decide the issue as a matter of law, particularly when the

decision is necessary to resolve the officers’ qualified

immunity defense. Probable cause to arrest on the break-

in is an objective matter and it may be found to exist,

even though the police officers thought otherwise.

Detention upon reasonable suspicion is lawful and if

there is a lawful preceding arrest, such as on a warrant,

then the only constitutional inquiry is whether the scope

and nature of the detention is reasonable. This was sub-

mitted to the jury and resolved against the petitioner.

When the courts are unable to agree as to what the

law is concerning an undisputed set of facts, then it

cannot be said that the right at issue was clearly estab-

lished. Accordingly, a police officer cannot be monetarily

liable under 42 U.S.C. §1983, which has as its fundamen-

tal pre-requisite the violation of a clearly established

constitutional right.

The Court of Appeals properly decided this case and

the writ of certiorari should be denied.

y

od

ARGUMENT

:.

INTRODUCTION

Petitioner seeks certiorari in this civil rights action

against three police officers and their employer, The City

of Lincoln, Nebraska. The trial resulted in a defendants’

jury verdict when tried in February, 1986, before District

Judge Warren K. Urbom. A three-judge panel of the

Eighth Circuit Court of Appeals reversed and remanded.

That panel opinion was automatically set aside when the

court took the case for en banc hearing. The Eighth

Circuit Court of Appeals, en banc, aftirmed the District

Court verdict in favor of all defendants.

Petitioner now seeks further review from this Court.

It is submitted at the outset that the petitioner fails to

show any reason why this case warrants the time and

consideration of the Supreme Court of the United States.

The en banc opinion from which appeal is sought simply

finds as a factual matter that there was probable cause for

the arrest of Jackson Warren and applies several well-

known and established principles. The question before

this Court on the writ, and the only one despite peti-

tioner’s listing of six questions, is whether the Eighth

Circuit Court of Appeals properly decided that there was

probable cause for Jackson Warren’s arrest for an

attempted break-in on the night of April 13, 1985, in the

area of 15th and “C” Streets in Lincoln, Nebraska. If there

was probable cause, as the appellate court found, then

petitioner’s claims simply evaporate. Clearly, the Court

of Appeals determined the issue which resolved the

entire case, thereby dispensing with the need to discuss

secondary or peripheral issues.

II.

ARREST IS THE DEPRIVATION OF LIBERTY AND

WHEN AN INDIVIDUAL IS ARRESTED, HE CAN-

NOT BE ARRESTED A SECOND TIME SINCE HIS

LIBERTY HAS ALREADY BEEN LOST.

Jackson Warren was arrested on a traffic warrant. The

preceding stop, as well as the warrant, were conceded to

be valid. The location of Warren at the time he was found

by the Lincoln police officers also made him a suspect in

a break-in which had occurred minutes earlier, 4'/2 blocks

to the east. He was found by a tracking dog east of the

crime scene, the same direction in which the intruder was

seen fleeing the crime scene. He was found at 4:30 A.M.

in a residential area, attempted to flee as the police

approached, and his physical description and clothing

matched the intruder’s. An identification check turned

up a warrant for his arrest. He was therefore arrested on

the warrant and neither the warrant, nor the arrest there-

under was ever challenged at any stage of this lawsuit.

Petitioner asserts that in order to detain him to ques-

tion him relative to the break-in which had occurred

within blocks and within minutes of his location or to

take photographs and prints, or to look for trace evi-

dence, the officers needed to have probable cause to

arrest him for the break-in. In other words, petitioner

seems to assert that the time spent answering questions

—

about his whereabouts or being mugged and printed is in

reality a ©. 2cond arrest” which can only occur if there

was prcbabiec cause for that “second arrest.”

Petitioner’s notion is flawed. First, this is a Section

1983 case and therefore the ultimate inquiry is whether

there was a violation of a “clearly established constitu-

tional right” by the defendant police officers. Petitioner

fails to point to any such clearly established right in this

case which was violated. Petitioner’s battle cry that “one

cannot be arrested without probable cause,” is meaning-

less in a fact specific inquiry where the petitioner is

already under arrest with an unchallenged warrant. Jus-

tice Scalia said in Anderson v. Creighton, 97 L.Ed.2d 523

(1987):

[T]he right the official is alleged to have violated

must have been “clearly established” . . . in the light

of pre-existing law. The unlawfulness must be

apparent.

At 531.

Thus, petitioner must point to a doctrine which holds

that there is in fact a “second arrest” under the facts of

this case, and secondly, that there must be probable cause

supporting such a “second arrest” irrespective of the

existence of the unchallenged warrant. Thirdly, petitioner

must show that there was not probable cause for the

“second arrest.” Finally, petitioner must show each of the

foregoing elements were clearly established at the time

the respondents contacted Jackson Warren. The Court of

Appeals did not err in resolving these issues against

petitioner.

The Court of Appeals, in an opinion authored by two

of the judges who dissented from the en banc opinion in

10

the instant case, answered the first issue in Garionis v.

Newton, 827 F.2d 306 (8th Cir. 1987), where the plaintiff

claimed that there needed to be probable cause for his

second arrest by a second officer. The court disagreed:

The flaw in this argument is that a person who is

already under arrest and in police custody cannot be

“re-arrested.” An arrest presumes that the person

arrested was at liberty, free from police custody,

before the arrest. This premise does not hold where

the subject is already in custody of law enforcement

officers.

Id. at 310.

Significantly, the court also found in Garionis that

there was no real dispute over the facts relating to the

arrest and that Newton had probable cause to arrest him.

As there was probable cause to arrest, no clearly estab-

lished rights were violated and both defendants were

entitled “as a matter of law, to qualified immunity from

damages.” Garionis also supports the majority’s deter-

mination here that probable cause could be determined as

a matter of law by the court as the circumstances sur-

rounding the arrest were fully developed and were not

controverted.

The Nebraska Supreme Court has reached the same

conclusion in a case which is nearly factually identical to

the instant matter. State v. Starks, 229 Neb. 482, 427

N.W.2d 297 (1988). There, Starks was under arrest and in

custody on traffic warrants when homicide officers took

him from his cell to another police station, where he was

questioned about and ultimately confessed to the homi-

cide they were investigating. Starks later challenged the

confession on the ground that it was procured as a result

11

of an iilegal arrest. The Nebraska Supreme Court distin-

guished Dunaway v. New York, 442 U.S. 200 (1979),

expressly following the holding of Garionis, and said:

The defendant’s assignment of error fails because he

was not arrested by Officers Wilson and Nutsch

when he was taken to Omaha police headquarters for

questioning. Since there was no new arrest, legal or

otherwise, his confession was not the fruit of an

illegal arrest, and the trial court did not err in refus-

ing to suppress the confession.

Starks at 487 N.W.2d at 300.

It is suggested that being arrested is a definite condi-

tion: either you are arrested or not. Former Chief Justice

Burger suggested the same concept in his concurring

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

1968). He closed his opinion by saying:

The reason for requiring probable cause for an

arrest is to protect against arbitrary interference with

liberty. When the condition of custody already exists,

however, the constitutional requirement of an arrest

on probable cause would be totally superfluous - a

sheer ritual serving no legitimate protective function.

Id. at 581.

However, in the instant case, the Court of Appeals

did not need to reach the issue of whether there was a

second arrest which needed to be supported by probable

cause, independent of the warrant for failure to appear.

Instead, the court went directly to the heart of the matter

and found that in any event the officers did have proba-

ble cause to arrest Warren for the break-in. As a result, all

other issues regarding length of detention and the taking

of physical characteristics were properly resolved against

petitioner Warren as lawful actions incident to a lawful

12

arrest. It was and remains unnecessary to reach any so-

called “second arrest” issues.

Il.

UNDER NEBRASKA LAW, IDENTIFYING PHYSI-

CAL CHARACTERISTICS SUCH AS PRINTS OR

PHOTOS MAY BE TAKEN FROM ONE LAWFULLY

ARRESTED, AND IN A CIVIL RIGHTS ACTION,

THE MOTIVE OF THE OFFICER TAKING THE

ITEMS IS IMMATERIAL.

That Jackson Warren was lawfully arrested on the

traffic warrant is a matter about which there can be no

question. The Nebraska Physical Identifying Characteris-

tics Act, Neb. Rev. Stat. §29-3301 et seq. (1985), authorizes

finger and palm prints and photographs of those “lawf-

ully arrested.” Under this statutory authority, it was

clearly lawful to mug, print, and photograph Warren.

This is true even though the results of taking those identi-

fying characteristics could rule him in or out as a suspect

in the break-in. Likewise, the fact that the officers’ true

intentions may have been to use those items to rule him

in or out as a suspect in the break-in is simply imma-

terial. Warren was lawfully arrested on the warrant and

his physical characteristics could be taken under the

Nebraska statute, as well as under Schmerber v. California,

384 U.S. 757 (1968) (physical characteristics are not

testimonial).

In civil rights litigation, police officers’ intentions

and motives are immaterial: their actions are to be judged

on an objective basis. Anderson v. Creighton. In Baker v.

McCollan, 439 U.S. 1114 (1978), now Chief Justice Rehn-

quist pointed out that the first inquiry in any Section 1983

13

suit is whether there has been a deprivation of a right

secured by the “Constitution and laws .. .”; and it was

held that if there had been no such deprivation, the state

of mind of the defendant was wholly immaterial. That

principle is directly applicable here. See, Heine v. Connelly,

644 FSupp. 1508 (D.C. Del. 1986). Accordingly, if it was

lawful to take the identifying characteristics, as it was,

then the officers’ motives in doing so were immaterial.

The taking of these things cannot be evidence of a consti-

tutional violation.

IV.

IT IS A MATTER OF DISCRETION FOR THE

APPELLATE COURT TO DETERMINE THE

ISSUES IT SHALL HEAR AND DECIDE, AND

WHEN THE OPPOSING SIDE HAS HAD AN

OPPORTUNITY TO DEVELOP EVIDENCE ON

THE ISSUE AT TRIAL, IT IS NOT ERROR FOR

THE APPELLATE COURT TO HEAR THE ISSUE.

The majority of the Court of Appeals found that the

appeal could be easily resolved by determining if there

was probable cause to support an arrest on the break-in

charge. The court did not say that probable cause was

needed under the circumstances of this case, but simply

found that it was present. Thus the case was completely

resolved by that conclusion. This is a factual determina-

tion and the Court of Appeals properly exercised its

discretion to consider that issue on rehearing. Petitioner

claims that it is reviewable error for the Court of Appeals

to consider the matter of probable cause for an arrest on

the break-in for the first time at rehearing en banc. It is

submitted that this is a misapprehension of the law.

14

Singleton v. Wulff, 428 U.S. 106 at 120-121 (1976), sets

forth the doctrine that issues to be taken up on appeal for

thefirst time are matters for the “discretion of the court of

appeals, to be exercised on the facts of the individual

case.” One of the primary considerations under Singleton

is whether the opposing party has had an opportunity to

adduce evidence on the issue.

The minority opinion mistakenly says Warren had no

opportunity to develop facts relating to the probable

cause defense. This is simply incorrect. Lincoln Police

Department Officers Myers (R 168), Beggs (R 221) and

Breen (R 279) were called to the stand by petitioner. The

dog handler was called by respondent (R 430) and cross-

examined by petitioner (R 443). There was full oppor-

tunity to explore the facts relating Warren’s connection to

the break-in.

It is difficult to point to one specific citation from the

record in this case to establish that petitioner Warren had

his opportunity on the issue of probable cause for an

arrest on the break-in. The reason is simply that this is

basically what the whole trial was about. What happened

at the break-in location, the dog track, the finding of Mr.

Warren, why he was taken into custody, and the ques-

tions asked of him all were explored at trial. The officers’

motivation, to the extent it was even material, was fully

and completely explored, as were each and every one of

their actions. It is sufficient to say that the record is full of

~ evidence of the facts upon which a determination of

probable cause for an arrest on the break-in could have

been made. Petitioner’s attorneys obviously anticipated

that the litigation encompassed the probable cause issue,

as they submitted proposed jury instructions which dealt

15

with probable cause. (See Transcript p. 32, Plaintiff’s

Proposed Jury Instructions No. 7 and 8.)

The dissenting opinion in the instant case, Warren v.

City of Lincoln, Nebr., 864 F.2d 1436 (8th Cir. 1989),

acknowledges that the court may determine probable

cause without submission to the jury and quotes Linn v.

Garcia, 531 F2d 855 (8th Cir. 1976):

Where the facts are in dispute or where they are

subject to different inferences, the question of proba-

ble 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.

Linn at 861 (emphasis added).

Unfortunately, the dissent has taken the disjunctive

holding of Linn and turned it into a conjunctive test.

Warren at 1444. This is not correct, as the dissent of Judge

Heaney fails to follow the rule from Linn that there are

two different circumstances in which the court can prop-

erly determine the issue.

Accordingly, as the probable cause issue was raised

and litigated at trial, it was certainly fair game at the

appellate level. Counsel for petitioner cannot deny that

their position throughout this matter has been that there

must have been probable cause for the “second arrest” as

well as for the detention, questioning, and fingerprinting

relative to the break-in. That being the case, it is hardly

surprising that respondents argued that additional proba-

ble cause was not necessary since Warren was already

lawfully arrested, but that in any event probable cause

existed for an arrest on the break-in, when judged on an

objective basis.

16

Ve

WHEN THE FACTS ON PROBABLE CAUSE ARE

UNCONTROVERTED, THE COURT SHOULD

DECIDE PROBABLE CAUSE AS A MATTER OF

LAW IN A 42 U.S.C. §1983 ACTION WHERE THE

POLICE OFFICER IS ENTITLED TO THE

DEFENSE OF QUALIFIED IMMUNITY.

The law is clear that probable cause is now an objec-

tive matter and that what the officer thought has little to

do with it. This is consistent with the shift found in

Harlow v. Fitzgerald, 457 U.S. 800 (1982), from a subjective

good faith defense for police officers to qualified immu-

nity where plaintiff must show a violation of a clearly

established constitutional right before liability can be

imposed. Anderson v. Creighton makes it abundantly clear

that the inquiry is the objective reasonableness of the

officers’ search or seizure decision. There Justice Scalia

wrote:

The general rule of qualified immunity is intended to

provide governmental officials with the ability ‘rea-

sonably [to] anticipate when their conduct may give

rise to liability for damages.’

At 534.

The objective standard seeks that goal. The police

officer on the street should not be obligated to guess at

the nuances of constitutional law at his financial peril,

and should be required to respond in damages only when

he transgresses clearly established constitutional law.

The Court of Appeals majority in this case did noth-

ing more than apply that objective standard to the issue

of whether there was probable cause to arrest Warren for

17

the break-in. The involved police officers had honestly

and freely admitted at trial that they did not believe that

they had probable cause to arrest. However, as pointed

out by the Court of Appeals’ majority opinion, courts

have frequently overruled the officers’ determination that

he had probable cause and therefore consistency

demands that the courts find probable cause, under an

objective standard, even though the officer felt otherwise.

In short, it is an objective standard, and it remains so,

irrespective of whether the officer thought he did or did

not have probable cause. Fairness to the officer on the

street demands that consistency.

The majority applied the proper test and concluded

that the facts surrounding Warren's arrest were not dis-

puted. That conclusion has more than ample support in

the record. The majority opinion recited the uncon-

troverted facts upon which probable cause rested:

A man reported that a slender white male in his early

20’s wearing a white short-sleeved shirt had tried to

gain entry into his second-floor apartment by

attempting to force open a window. The victim saw

the intruder running from the apartment to the east.

Officer Alexander who had arrived at the scene

within five minutes put his tracking dog on the

intruder’s scent. The dog led the officers to Warren’s

car, parked 4'/2 blocks east of the scene of the

attempted burglary. The police had received the call

only 11 minutes earlier. It was 4:30 A.M. ina residen-

tial neighborhood with only one other person in the

general area. Warren is a slender white male who

was 19 years old and wearing a light colored short-

sleeved shirt. As the officers approached his car,

Warren attempted to drive away. We believe that

18

these facts and circumstances would warrant a pru-

dent person in believing that Warren was the

intruder.

Warren, 864 F.2d 1436 at 1440.

It is important that the standard is not to dissect each

element or fact standing by itself, but rather to look at the

“cumulative effect of the facts in the totality of the cir-

cumstances.” United States v. Archer, 840 F.2d 567 (8th Cir.

1988). The facts relied upon by the majority were uncon-

troverted and supported a finding of probable cause even

though the officers had honestly and cautiously said that

they did not believe that they had probable cause. Peti-

tioner (and the dissent as well) fail to demonstrate any

controversy about the existence of the basic facts cited

above.

The dissent does not seem willing to even concede

that an objective standard is appropriate to analyze prob-

able cause, when that clearly is the law. Anderson v.

Creighton. Here, the dissent uses a subjective standard to

attack the majority when it says:

A jury could reasonably draw the conclusion that

the description of the intruder was too general, the

dog track too unreliable and the attempt to leave the

area too ambiguous to constitute objective evidence

of probable cause.

Warren, 684 F.2d 1436, at 1445.

These are merely subjective descriptors for the dog

track, the physical description, and the attempt to leave.

They are not necessarily accurate descriptors, as it is

equally plausible to conclude, as did the majority, that

these elements were specific and reliable enough for

19

probable cause in the context of a §1983 lawsuit. How-

ever, under the standard of Linn v. Garcia, it is not the

characterization of the facts that determines whether the

court properly decides probable cause as a matter of law.

Rather, if the facts are uncontroverted, then the court

determines probable cause. The facts here are uncon-

troverted. There is simply no dispute anywhere in this

record about the facts that a break-in had occurred, that a

description had been given, that the time lapse between

events was short, that the dog had tracked to Warren’s

car, that Warren was physically similar to the description,

and that he attempted to flee an essentially deserted

residential area at 4:30 in the morning. Different people

might draw different ultimate conclusions from those

facts. However, the facts themselves are not disputed.

When the facts are undisputed, the concepts of qualified

immunity as defined by Harlow and Anderson contem-

plate that the court will initially scrutinize the facts so as

to avoid trial unless there has been the violation of a

clearly established constitutional right. Thus it was

entirely proper for the majority of the Court of Appeals

to decide probable cause as a matter of law.

It is submitted that there is no large, significant or

novel constitutional issue at work here; this is simply an

appellate court that has split in its view of the conclusion

to be drawn from a set of uncontroverted facts surround-

ing the stop and detention of Jackson Warren.

20

Wis

THERE IS NO CLEARLY ESTABLISHED CONSTI-

TUTIONAL RIGHT WHICH WAS VIOLATED BY

ANY OF THE RESPONDENTS.

In the three years of appeals since verdict, it would

seem that the ultimate issue has become obscured. That is

whether Officers Beggs, Breen or Myers violated a clearly

established constitutional right possessed by Jackson

Warren.

It is meaningless to say that the clearly established

right at issue is that probable cause is needed for an

arrest. That is well known. Here, an arrest occurs pur-

suant to an unchallenged warrant. That a proper stop

occurred under Terry v. Ohio, 392 U.S. 1 (1968), is beyond

discussion. The mugs, photos, and prints taken from Mr.

Warren at the police station are clearly lawful under the

Nebraska Physical Identifying Characteristics Act, supra.

They could have been taken had there been no break-in.

The officers’ intention in taking the characteristics is

immaterial. Nor can that which is objectively lawful be

used to prove a “pretext” in a §1983 case, despite the now

voided Panel opinion to the contrary.

The sum and substance of this case is that there is no

constitutional doctrine that a “second arrest” had

occurred under these facts; nor is it established that prob-

able cause would be needed for such a second arrest; nor

is it established that probable cause was lacking. Finally,

none of these three propositions meets the test of being

clearly established. Accordingly, the majority opinion of

the Court of Appeals is correct. That court properly

examined the uncontroverted facts to determine if proba-

ble cause was present and therefore the “second arrest”

21

issue becomes moot. The United States Supreme Court

should not grant certiorari to review what is merely a

factual disagreement of the Eighth Circuit Court of

Appeals.

VIL.

DETENTION IS MATERIALLY DIFFERENT THAN

AN ARREST, AND DETENTION AND QUES-

TIONING ON REASONABLE SUSPICION IS

LAWFUL SO LONG AS THE LENGTH OF DETEN-

TION AND THE SCOPE OF QUESTIONING ARE

REASONABLE UNDER THE PARTICULAR

CIRCUMSTANCES.

The petitioner asserts that this Court should grant

the writ because otherwise Nebraska citizens will be

subjected to unlawful detention .without probable cause

for investigative purposes when they are stopped for

traffic offenses. This over-dramatizes any issue in the

case, ignores the factual realities of the lawsuit, and

ignores established law.

The specter of doom raised for those who traverse

Nebraska highways is allegedly because of “the uncon-

stitutional custom of the City training her officers to

detain traffic warrant arrestees for questioning on unre-

lated felony offenses on a mere showing of ‘reasonable

suspicion’.” (Petitioner’s brief, p. 29). The first problem

with the assertion as a ground for granting certiorari is

that it is in fact a reasonably accurate statement of the

law. Under Terry v. Ohio, citizens, be they traffic arrestees

or on foot, can be detained for a limited time and for

limited purposes on a “mere showing of reasonable sus-

picion.” Probable cause is simply not required for a Terry

stop.

22

In this case, there was reasonable suspicion, based on

articulable facts, for the initial stop of Jackson Warren.

Given the uncontroverted facts, a police officer would

have to be dead, asleep, or an idiot not to stop Warren for

“further investigation.” Further investigation at the loca-

tion of the stop revealed that there was an arrest warrant

for him. He was arrested and taken into custody. As a

factual matter, the Court of Appeals found on the basis of

the uncontroverted facts that probable cause also existed

at the same time for an arrest on the break-in.

In United States v. Sokolow, 49 CCH S.Ct. Bull. B2003

(April 3, 1989), Terry was reaffirmed. Once again, it was

recognized that all facts must be considered together in

the context of the circumstances. It was pointed-out that:

Indeed, Terry itself involved a ‘series of acts, each

of them perhaps innocent’ if viewed separately, ‘but

which taken together warranted further investiga-

tion...’ ‘[IJn making a determination of probable

cause the relevant inquiry is not whether a particular

individual is “innocent or guilty,” but the degree of

suspicion that attaches to particular types of non-

criminal acts.’ That principle applies equally well to

the reasonable suspicion inquiry.

Id. at 2012-13 (citations omitted).

Therefore, to the extent that trarfic warrant arrestees

are in fact detained for questioning on unrelated felony

offenses on a mere showing of reasonable suspicion, that

practice of the Lincoln Police Department is entirely con-

sistent with the law as set forth in Terry and Sokolow.

Accordingly, there is no “custom” of unlawful question-

ing or detention of traffic arrestees in the City of Lincoln

which needs correcting through this appeal. Questioning

23

upon reasonable suspicion is legal. Detention upon rea-

sonable suspicion is legal. It is the length, nature, and

scope of the detention and questioning that become the

relevant constitutional inquiry. These were submitted to

the jury here. As stated in Judge Urbom’s Memorandum

and Order of February 26, 1986, (Transcript p. 38) the

issue Of whether he was “detained too long was pre-

sented to the jury. .. .” (See Due Process of Law Instruc-

tion, Transcript p. 45.) Petitioner’s assertion about the so-

called customs of the City of Lincoln and its police offi-

cers is basically meaningless because it is a broad, general

statement of the law, which happens to be essentially

correct.

This decision of the Court of Appeals blazes no new

trails, does not boldly depart from established law, is not

in conflict with the law of other circuits, and is not clearly

wrong. The decision is simply a factual determination of

whether probable cause existed. The court was split, not

on the facts, but on the conclusion to be reached from

them. As the underlying facts were uncontroverted, it

was proper for the Court of Appeals’ majority to resolve

the issue of probable cause as a matter of law.

VIII.

AN ARRESTEE HAS NO CONSTITUTIONAL

RIGHT TO HAVE MIRANDA WARNINGS GIVEN

TO HIM AND THERE IS NO 42 U.S.C. §1983

ACTION FOR ANY SUCH FAILURE TO WARN.

Petitioner raises an issue relating to assistance of

counsel. This is a non-issue, as obviously there were no

adversarial judicial criminal proceedings instituted

against Warren with respect to the break-in. Thus, the

24

right to counsel had not yet attached. See, Kirby v. Illinots,

406 U.S. 682 (1972). There is no constitutional right to

Miranda warning. Hampton v. Gilmore, 60 F.R.D. 71 (E.D.

Mo.) aff'd 486 F.2d 1407 (8th Cir. 1973). The majority

opinion of the Court of Appeals reached the same conclu-

sion and the dissent did not disagree. It is therefore

submitted that the issue of right to counsel and Miranda

warnings have been resolved and need no attention

through a writ of certiorari.

IX.

WHEN THE COURTS CANNOT AGREE ABOUT

THE LAW APPLICABLE TO AN ESSENTIALLY

UNDISPUTED FACT SITUATION, THEN THE

LAW IS NOT CLEARLY ESTABLISHED TO THE

POINT THAT §1983 LIABILITY CAN BE IMPOSED

ON A POLICE OFFICER.

This lawsuit began with the filing of the Complaint

on August 16, 1985. Trial was in February, 1986, and the

last three years have been spent in the appellate system.

The Panel’s opinion was that the issue of pretextual arrest

should have been submitted to the jury. Warren v. City of

Lincoln, Nebr., 816 F.2d 1254 (1987), vacated, 864 F.2d 1436

(1989). The Panel used the prints, the photos, and the

mug shots as evidence of pretext which should have gone

to the jury so that they could decide whether the officers’

true motives in arresting him on the warrant was to

secure evidence regarding the break-in. This was patently

wrong because it injected the subjective content of the

officers’ minds back into the case, contrary to Harlow and

Anderson, and did so in a case where the arrest warrant

required Warren’s arrest irrespective of the officers’

intentions, thoughts, or motives. Once he was found, he

25

was to be arrested. It was that simple. For purposes of

§1983 litigation, actions which are objectively lawful are

not made unconstitutional, by the officers’ thoughts, be

they pure or nefarious. The Court of Appeals obviously

recognized the underlying deficits in the Panel’s opinion

and voided it by granting en banc rehearing. At the

rehearing en banc, four judges held probable cause for an

arrest existed as a matter of law. The concurring judge

would have affirmed because the arrest on the warrant

was concededly lawful, the issue of the length of deten-

tion was submitted to the jury and the officers did not

violate clearly established constitutional rights.

The four dissenters argued that a jury could reasona-

bly conclude that the description of the intruder was too

general, the dog track too unreliable, and the attempt to

leave too ambiguous to constitute “objective evidence of

probable cause.” Thus, they would have reversed.

After three years of analysis, study, argument, dis-

agreement, opinions and dissents, some think there was

objective probable cause and that any resulting detention

was lawful. Other judges apparently disagree. Remem-

bering that it is the police officers’ monetary liability to

Jackson Warren which is at stake here, it is well to recall

Justice Scalia’s words in Anderson v. Creighton:

The contours of the right must be sufficiently clear

that a reasonable official would understand that what

he is doing violates that right. This is not to say that

official action is protected by qualified immunity

unless th> very action in question has previously

been held unlawful, but it is to say that in light of

pre-existing law the unlawfulness must be apparent.

97 L.Ed. at 531 (citations omitted).

26

Accordingly, it does not seem unfair to ask where

this leaves Detective Breen, Sergeant Beggs, and Officer

Myers. How can they be personally liable for violating a

constitutional right which is allegedly clearly established,

when three years of litigation have failed to produce

agreement among nine judges of the Court of Appeals on

whether a clearly established constitutional right was

violated. This is no criticism of the Court of Appeals.

Instead, it points out the impossibility of expecting the

police officer on the street to divi e in a matter of min-

utes what eminently qualified, experienced, and trained

legal minds cannot agree upon after wrestling with the

matter for years. Thus, Breen, Beggs and Myers did not

infringe any clearly established right during their brief

contact with Jackson Warren. He was taken into custody

under a lawful warrant, the physical characteristics were

taken under Nebraska statute, and the only jury issue,

(the length of the detention) was decided adversely to

petitioner. The case does not deserve certiorari, and the

respondents respectfully ask the Court to end the case by

denial of the writ.

y%

_

CONCLUSION

This case has been tried to a District Court jury and

examined during two appellate proceedings in the Eighth

Circuit Court of Appeals. There is a record of uncon-

troverted facts which clearly supports the conclusion that

the officers had probable cause to arrest Warren for the

break-in, even though the officers’ honest and sincere

opinion was that they did not have probable cause.

Whether there was a “second arrest” was not decided by

27

the Court of Appeals, as it was unnecessary for a com-

plete resolution of the case. An arrest is an arrest, and

once it has occurred, liberty is already lost. At that point,

the constitutional issues become the length and condi-

tions of the detention. Here, there was an admittedly

valid arrest on an unchallenged warrant, and the length

of the detention was submitted to the jury and resolved

against Warren as being reasonable.

Police officers are only liable for violations of clearly

established constitutional rights. Where three years of

litigation fail to generate agreement among the judiciary,

it is impossible to say that rights were clearly established

to the point that the police officers are Jiable. The finding

of probable cause by the Court of Appeals is a factual

determination. It neither changes old law nor makes new

law. This case simply represents a factual disagreement in

the Eighth Circuit which does not require resolution by

the highest court in the land. This case does not have the

requisite constitutional scope to justify certiorari. There-

fore, respondents respectfully request that the writ be

denied.

Respectfully Submitted,

RicHARD D. SIEVERS OF

BRUCKNER, O’GarRA, KEATING

Sievers & HeEnpry, P.C.

530 South 13th Street, Suite A

Lincoln, Nebraska 68508

(402) 475-8230

Attorneys for Respondents