WILLIAM O. BERTELSMAN, District Judge.
This matter is before the Court on the motions of defendants Gwendolyn Kelley (Doc. 70)
The Court heard oral argument on these motions on Friday, January 20, 2012. Charles Lester represented the plaintiff, Stephen McMurtry represented defendant Kelley, and Alex Mattingly and Frank Warnock represented defendant Warner, who was also present. Court reporter Lisa Weisman recorded the proceedings. The Court thereafter took the motions under submission. (Doc. 84).
Having reviewed the matter further, the Court now issues the following Memorandum Opinion and Order, which grants the motions and dismisses this action.
Plaintiff was arrested for burglary but the Commonwealth voluntarily dismissed the charges before trial. See, e.g., Doc. 73-2 at 49-50 (hereinafter "Plf. Depo."). He then filed this action under 42 U.S.C. § 1983 and state law. See Doc. 6.
The parties dismissed the City of Covington and crime technician Dawn Bayless by stipulation. The Court dismissed Commonwealth Attorney Rob Sanders and prosecutor LeAnne Beck on immunity grounds. See Docs. 28, 29, 33.
The remaining defendants are Covington Police officers. Officer Warner was assigned the task of looking for fingerprints at the scene. Detective Kelley was assigned to investigate the crime, and she signed the affidavit submitted in support of an arrest warrant. See, e.g., Doc. 6-6 (hereinafter "Affidavit"); Doc. 73-1 at 16, 89-90 (hereinafter "Kelley Depo."); Doc. 73-3 at 18-20 (hereinafter "Warner Depo."); Doc. 76-1 ("hereinafter "KYIBRS Report").
Plaintiff maintains that the affidavit contained false information and omitted other material information, thereby violating the Fourth Amendment. He asserts that defendants' conduct in connection with the affidavit was, at the least, reckless. He seeks damages for: violation of the Fourth Amendment under § 1983; malicious prosecution under § 1983 and state law; abuse of process under state law; and false arrest and false imprisonment under state law. He has not identified a separate theory of recovery against the remaining defendants under the Fourteenth Amendment or the state constitution. See Doc. 6 at 11 (Count II); Doc. 76 at 10-11, 20, 22-23 (hereinafter "Response").
The officers move for summary judgment on the basis of qualified immunity.
The material facts are not in dispute. Large glass windows form the entryway to Franks Men's Shop in Covington, Kentucky. Through them, the public can see merchandise in display cases. The windows are configured in a deep U-shape. The windows at the top of the "U" flank the sidewalk, and the interior of the "U" forms the path from the sidewalk to the front door of the store. See, e.g., Doc. 76-12 at 2-3 (first photo on each page) (hereinafter "Photographs").
On April 24, 2007, the store alarm sounded twice. The first time was around 2:30 a.m. The police discovered that one of the windows on the interior of the "U" very near the front door had been smashed, which allowed someone to reach inside a display case and take clothing valued at $300. See KYIBRS Report at 1, 3; Warner Depo. at 16, 25-27, 47.
Officer Warner found six fingerprints around the smashed area or "point of entry." He found two prints on the exterior of the glass around the point of entry. He found four prints on the side of the glass inside the display case. He documented each print with a separate print card. See Doc. 76-8 at 1-12 (hereinafter "Print Cards"); KYIBRS Report at 3; Warner Depo. at 19-20, 30, 49-51. Other officers conducted interviews. A bar patron reported he saw a white male in the area and described him as young, short, and possibly bearded. See KYIBRS Report at 3. The next morning, Detective Kelley was assigned the case. See Kelley Depo. at 16, 19.
Meanwhile, after the officers left the scene, the alarm sounded again around 4:00 a.m. The storeowner did not bother to call the police, although another detective was assigned to investigate this second alarm. However, Detective Kelley later interviewed the storeowner, knew that the alarm had sounded again, and learned someone told the storeowner they saw a person carrying clothes down the street near the store around 7:00 a.m. See Doc. 76-2 at 1 (hereinafter "Case Activity Log"); Kelley Depo. at 20, 50-51, 62, 69-73; Warner Depo. at 27.
Detective Kelley thought Patrick Denler might be a possible suspect. So did Officer Warner. Mr. Denler was a young white male, well-known to the Covington police, who was suspected in several recent robberies in the area. Thus, in addition to the notation "unknown" suspects, Mr. Denler was listed by name, description, and "jacket number," as a possible suspect on the evidence form that accompanied the six print cards taken at the scene. Detective Kelley also testified that she asked the lab technician to check the prints against Mr. Denler's known fingerprints. See Doc. #76-3 (4/24/07 form signed by Officer Warner); Kelley Depo. at 21-22; Warner Depo. at 33-34.
Prints 1 and 2, taken from "inside [the] glass display," and Print 5, taken from the outside, were deemed to have no comparison value. See Print Cards at 1-4, 9-10; Doc. 76-9 at 1 (hereinafter "Bayless Report"). Prints 3 and 4, taken from inside, yielded "negative" results from the "AFIS" database. See Print Cards at 5-8; Bayless Report at 1-2. None of the useable prints matched Mr. Denler's prints. See Case Activity Log at 3.
The card for Print 6 did not expressly state whether Officer Warner found it on the inside or outside of the glass.
Detective Kelley wrote Officer Warner on June 21, 2007,
Officer Warner was mistaken. Had he or the detective reviewed the crime scene reports and each of the print cards in detail, they may have recognized the discrepancy. See, e.g., Warner Depo. at 42-43. Neither did so. Nor did Detective Kelley personally interview witnesses, speak with the lead officer on the scene who wrote the crime scene report, review the crime scene photographs, or consult with the detective assigned to investigate the second alarm. Defendants do not dispute they failed to perform these tasks, though they did explain why all of the print cards were not available to them. See Doc. 81 at 1-3; Doc. 82 at 1-3; Kelley Depo. at 77; Warner Depo. at 39-41.
Thus, when Detective Kelley completed her investigation in early August 2007, wrote her report, and submitted it to a prosecutor, she transmitted the mistaken information that Plaintiff's fingerprint was found on the inside of the glass. This unidentified prosecutor actually prepared the affidavit, but Detective Kelley signed it as the affiant, thereby attesting that it was accurate. See Doc. 76-13 (hereinafter "Kelley Report"); Kelley Depo. at 98-90.
The affidavit generally tracks Detective Kelley's report and states in pertinent part:
Affidavit.
The affidavit does not reflect all of the details of Detective Kelley's investigation. For example, she had seen the crime scene and location of the smashed window, and had seen the card for Print 6, which noted the print was located at the point of entry. Thus, she knew that plaintiff's fingerprint came from around the point of entry. See, e.g., Kelley Depo. at 56, 78. Also, when Detective Kelley learned in June the print was a match, she obtained an address and telephone number for plaintiff. She called and received no response, so she sent plaintiff a postcard asking him to "Please contact me reference your Burglary," which also did not yield a response. Plf. Depo. (Defendant's Exhibit 2).
On the basis of Detective Kelley's affidavit, a judge found probable cause to believe plaintiff committed the burglary, and issued an arrest warrant on August 30, 2007. See Doc. 71-3 at 33. Years passed. After a traffic stop in Florida revealed the warrant, plaintiff was arrested in the Summer of 2009, and extradited to Kentucky. Plaintiff remained in custody from his arrest until around December 7, 2009, when the trial court dismissed the charges at the prosecutor's request.
The moving party to a summary judgment motion bears the burden of demonstrating no genuine issue of material fact and entitlement to judgment as a matter of law. When a defendant moves on the basis of qualified immunity, however, plaintiff bears the burden of showing defendant is not entitled to the defense by establishing: (1) the officers' conduct violated a constitutional right; and (2) that right was so "clearly established" that a reasonable officer would have known his or her conduct was unlawful. If plaintiff is successful on both counts, defendants nevertheless are entitled to summary judgment if they show their conduct was objectively reasonable in light of the law existing at the time. The facts are viewed in a typical summary judgment posture — construed in the light most favorable to the plaintiff — but this does not require the Court to ignore undisputed and material facts, or to accept facts asserted by a plaintiff that do not raise a genuine issue. See, e.g., O'Malley v. City of Flint, 652 F.3d 662, 667 (6th Cir. 2011); Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009); Wolgast v. Richards, 389 F. App'x 494, 501 (6th Cir. 2010); Burden v. Paul, Civil Action No. 2009-105 (WOB-JGW), 2011 WL 4431819, at *3 (E.D. Ky. Sept. 22, 2011).
An "action under § 1983 . . . lie[s] against an officer who obtains an invalid search warrant by making, in his affidavit, material false statements either knowingly or in reckless disregard for the truth. . . . This standard originates in Franks." Wolgast, 389 F. App'x at 502 (internal quotations and citation omitted); see also Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989).
Contrary to Officer Warner's arguments, see Doc. 82 at 7, the Sixth Circuit recently noted that liability lies not only against the officer who "made" the affidavit, but also against officers who supplied information for the affidavit.
Wolgast, 389 F. App'x at 503 n. 5. Thus, the fact that neither defendant physically prepared the contents of the affidavit, and the fact that Officer Warner did not sign it, does not absolve them of potential liability as a matter of law.
In Franks, the Supreme Court discussed what a defendant must show in order to secure an evidentiary hearing to challenge an affidavit tendered to support a probable cause. Plaintiff thus contends to overcome the claim of qualified immunity, he "must establish: (1) a substantial showing that the defendant stated a deliberate falsehood or showed reckless disregard for the truth and (2) that the allegedly false or omitted information was material to the finding of probable cause." Response at 11. He cites the Vakilian decision for this two-part test. Id.; see also Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003).
Similarly, under Leon, a showing of falsity does not violate the Fourth Amendment unless the false information results in an absence of probable cause
Indeed, probable cause, or the absence thereof, is a common element to plaintiff's § 1983 Fourth Amendment and malicious prosecution claims, and the state malicious prosecution and false arrest claims. Plaintiff also rests his state abuse of process and false imprisonment claims on lack of probable cause. See, e.g., Sykes v. Anderson, 625 F.3d 294, 307-08 (6th Cir. 2010); Wolgast, 389 F. App'x at 501; Burden, Civil Action No. 2009-105 (WOB-JGW), 2011 WL 4431819, at *3; Martin v. Schutzman, Civil Action No. 2008-104 (WOB), 2009 WL 3413970, at *2 & n. 3 (E.D. Ky., Oct. 21, 2009); Response at 12-15, 20, 22-23.
Plaintiff cites decisions from other circuits to show that the Franks inquiry and/or probable cause requirement to support an arrest warrant is "clearly established." See Response at 12. However, Sixth Circuit precedent directly supports this view. See Kuslick v. Roszczewski, 419 F. App'x 589, 592 (6th Cir. 2011) ("This [two prong-Frank/Vakilian] standard is clearly established.").
Plaintiff does not define "substantial," and his analysis proceeds on the assumption that if he can simply identify an error or omission, then he meets the first prong. The law is not entirely clear,
Based on the plain language of the first prong, the Court finds that plaintiff has not made a genuine showing, much less a substantial one, that Officer Warner's or Detective Kelley's conduct was "reckless" or "deliberate." At best their investigation and documentation can be characterized as sloppy or negligent. Furthermore, Sixth Circuit authority in the criminal and § 1983 contexts holds that the mere presence of omissions or affirmative erroneous information will not satisfy a plaintiff's burden of making a "substantial" showing on this prong.
Since plaintiff does not meet the first requirement of the two-prong test, his Franks claim fails. Alternatively, the Court will assume that this prong is met.
To assess whether plaintiff has met his burden on the second prong of the Franks inquiry, the Court omits the "false" material, includes the omitted material, and decides whether probable cause exists. See, e.g., Sykes, 625 F.3d at 305; Hill, 884 F.2d at 275. "Police have probable cause to arrest a person when they have reasonably trustworthy information that is sufficient to warrant a prudent man in believing that the suspect had committed . . . an offense based on the facts and circumstances within the police's knowledge at the moment in question." Martin, Civil Action No. 2008-104 (WOB), 2009 WL 3413970, at *3 (internal quotations and citations omitted).
While it is true and "clearly established that an individual's mere presence at a crime scene does not constitute probable cause for an arrest," this Court may not "ignore the context of the case" in making a probable cause determination. Smith v. Patterson, 430 F. App'x 438, 441 (10th Cir. 2011) (internal quotations and citations omitted).
Even without the "inside" designation for plaintiff's fingerprint, the affidavit still would have provided that Officer Warner located several fingerprints from the "glass" at the "scene" where a "display window [was] broken" and that the lone print with comparison value belonged to plaintiff. A fingerprint placing plaintiff at the scene provided Detective Kelley with objective physical evidence that he could have been involved in the burglary. This sort of evidence stands in stark contrast to cases where the officer focused on the plaintiff based on nothing more than a "hunch" or "speculation." See, e.g., Sykes, 625 F.3d at 307-08 (police believed robbery was "inside job," but only evidence in support of probable cause was that plaintiff was present when a robbery took place and called the police to report it afterward).
Moreover, a print on the outside of the glass at the point of entry is not conclusively exculpatory. A "finding of probable cause does not require evidence that is completely convincing or even evidence that would be admissible at trial; all that is required is that the evidence be sufficient to lead a reasonable officer to conclude that the arrestee has committed. . . a crime." Harris v. Bornhorst, 513 F.3d 503, 511 (6th Cir. 2008); see also, e.g., Martin, Civil Action No. 2008-104 (WOB), 2009 WL 3413970, at *3 ("Probable cause is a practical, nontechnical conception that deals with probabilities, not certainties and the factual and practical considerations of everyday life.") (internal quotations and citations omitted). "The existence of probable cause in a § 1983 action is generally a jury question . . . [b]ut under § 1983, an officer is entitled to qualified immunity if "he or she could reasonably (even if erroneously) have believed that the arrest was lawful, in light of clearly established law and the information possessed at the time by the arresting agent." Wolgast, 389 F. App'x at 501 (internal quotations and citations omitted).
Eyewitness testimony alone is sufficient to establish probable cause because, unless the officer has actual evidence showing otherwise, eyewitness testimony is deemed "trustworthy." See, e.g., Wilson Russo, 212 F.3d 781, 790-91 (3d Cir. 2000); Peet v. City of Detroit, 502 F.3d 557, 564 (6th Cir. 2007); Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999). While a fingerprint alone may not be sufficient to establish guilt beyond a reasonable doubt,
When the Court considers the omitted facts available to Detective Kelley, the case for probable cause is even stronger.
The seven facts plaintiff alleges Detective Kelley should have included in her affidavit are:
See Response at 14-15. The seventh point is inaccurate because the affidavit did, in fact, describe plaintiff's physical characteristics. Even so, these omitted facts, alone or in combination, are in no way exculpatory and do not negate the presence and significance of plaintiff's fingerprint.
Contrary to plaintiff's theory, the omitted facts do not show that someone else committed the crime to the exclusion of plaintiff. They do not, for example, establish that any eyewitness saw who broke into the store at 2:30 in the morning. They do not establish that one person, acting alone, committed the first crime. And, if the Court is to consider information plaintiff asserts should have been provided, then plaintiff cannot create a "genuine" issue by ignoring the undisputed facts that undermine his interpretation of probable cause.
That is, plaintiff's fingerprint was not simply found on the outside of a window by the sidewalk where a passerby might innocently deposit a fingerprint. As plaintiff himself notes, and cannot dispute in light of the evidence of record, the fingerprint was found on the outside of the glass above the point of entry. "Defendants continue to attempt to claim that this fingerprint was found at the point of entry somehow establishing probable cause; however, the only black fingerprinting dust identified in the photograph is at eye level, the individual who robbed this store broke and entered the bottom of the window." See Response at 19. Eye level is a location where one could easily envision the burglar bracing with one hand to bend over and smash the window at a lower spot.
Even more fundamentally, Detective Kelley considered but ruled out the very suspect plaintiff wanted her to include in the affidavit. She had done so by the time she completed her investigation and before she submitted her results. Prints 3 and 4 did not match any prints, meaning they specifically did not match Mr. Denler's known prints.
Because probable cause existed regardless of the aspects of the affidavit plaintiff's challenges, he fails to meet his burden on the second Franks prong as a matter of law.
Even reading plaintiff's response broadly, the Court does not construe it as alleging defendants' post-arrest conduct (such as Detective Kelley's testimony before the grand jury or their personal interactions with the prosecutor) as a basis for a malicious prosecution claim under Sykes. Instead, his arguments are that their pre-arrest inadequacies and the "falsehood" that made its way into the arrest affidavit triggered the chain of events that resulted in his prosecution.
Even if plaintiff is challenging the quality of defendant's pre-affidavit investigation, however, his claims also fail as a matter of law. As noted above, probable cause existed at the point Detective Kelley submitted her affidavit and, at most, plaintiff's allegations about defendants' failure to consult the print cards and each other during their investigation raises a claim of negligence which will not support a cause of action under Franks.
Also, while Sykes held that "the fact that [police officers] did not make the decision to prosecute does not per se absolve them from liability," 625 F.3d at 311, and held that malice is not an element of a malicious prosecution claim, id. at 309, it did not dispense with the requirement of a lack of probable cause. "[B]ecause a § 1983 claim is premised on the violation of a constitutional right, the plaintiff must show that there was a lack of probable cause for the criminal prosecution." Id. at 308.
Accordingly, for the reasons just discussed, Sykes affords plaintiff no basis for relief, even if the malicious prosecution claim it recognizes is considered clearly established as of the date the events here took place.
Defendants argue that, even if they violated clearly established constitutional law, they are entitled to summary judgment if their conduct was "objectively reasonable." The "`objective legal reasonableness' standard analyzes claims of immunity on a fact-specific, case-by-case basis to determine whether a reasonable official in the defendant's position could have believed that his conduct was lawful, judged from the perspective of the reasonable official on the scene." Cochran v. Gilliam, 656 F.3d 300, 306 (6th Cir. 2011).
The Cochran panel rejected the defendants' argument
Id. at 310 (quoting Anderson v. Creighton, 483 U.S. 635, 640, (1987)).
In Cochran, the Sixth Circuit noted that it was "clearly established" that officers incur no Fourth Amendment liability if they merely "stand by" and "neither encourage nor direct a private individual" who is carrying out a repossession the Fourth Amendment. Id. In addition, Supreme Court authority that predated the conduct at issue held that, when officers take an "active role in a seizure or eviction . . . they may no longer be entitled to qualified immunity." Id. (citing Soldal v. Cook County, Ill., 506 U.S. 56, 69 (1992)).
Because the officers in Cochran started as standbys but ended up participating in a landlord's seizure of tenant property, the Sixth Circuit refused to characterize their conduct as "objectively reasonable in light of the legal rules that were `clearly established' at the time." Id. at 311. The situation facing this Court is in a different posture from the clear fact-specific and bright-line precedent in the Cochran case.
Just days ago, the Supreme Court indicated that summary judgment on qualified immunity is "correct" when none of its decisions have "found a Fourth Amendment violation on facts even roughly comparable to those present" in the instant case, and "some . . . opinions may be read as pointing in the opposite direction." Ryburn v. Huff, No. 11-208, ___ S. Ct. ___, ___, 2012 WL 171121, at *3 (Jan. 23, 2012).
Although the general Fourth Amendment principles set forth in Franks and Leon are clearly established, the parties have not cited, nor has the Court found, any Supreme Court decision or other authority that clearly holds a fingerprint is insufficient probable cause as a matter of law under any circumstances. The authorities discussed above support the opposite view that a lone fingerprint can be sufficient, particularly where no other genuinely exculpatory information compels a different conclusion.
As an alternative basis for summary judgment, the Court finds that a reasonable police officer in Detective Kelley's position could have come to the conclusion that, with none of the useable fingerprints matching the person they first suspected, the sole fingerprint that yielded a match supported a request for an arrest warrant.
The same is true for Officer Warner, even if he acted objectively unreasonably in guessing about the exact location of the fingerprint when he answered Detective Kelley's question. See id. at *5. The Court has not found a clear decision condemning such behavior, and certainly not as a matter of constitutional law.
Discovery closed in July 2011, the deadline for filing dispositive motions passed in October 2011, and plaintiff has not moved to amend or substitute individuals for the ten John and Jane Doe Defendants. See Docs. 6, 23, 55, 69. If a plaintiff fails to substitute fictitious parties after the end of discovery, then dismissal without prejudice is appropriate. See, e.g., Petty v. County of Franklin, Ohio, 478 F.3d 341, 346 & nn. 2-3 (6th Cir. 2007); Searcy v. County of Oakland, 735 F.Supp.2d 759, 771 (E.D. Mich. 2010); Rigney v. Marcum, No. CIV. 06-187-REW, 2007 WL 2979931, at *1 & n.1 (E.D. Ky. 2007).
Therefore, having reviewed this matter, and the Court being sufficiently advised,
1. The motions of the Detective Kelley and Officer Warner for summary judgment (Docs. 70, 71) be, and are hereby,
2. Plaintiff's action against Detective Kelley and Officer Warner be, and is, hereby,
3. The remainder of the action against any and all Doe defendants be, and is, hereby,
4. A separate judgment shall enter concurrently herewith. This 14th day of
