WESLEY, Circuit Judge:
Chad Wertman ("Wertman") appeals from the January 24, 2012 opinion and order of the United States District Court for the Southern District of New York (Holwell, J.) denying Wertman's motion for summary judgment. Linda Stansbury ("Stansbury") brought this action pursuant to 42 U.S.C. § 1983 alleging false arrest and malicious prosecution. Wertman moved for summary judgment, asserting that (1) there was probable cause for the arrest and prosecution, or, in the alternative that (2) he was entitled to qualified immunity based on the existence of arguable probable cause.
The district court analyzed each piece of evidence in the case seriatim and in isolation and concluded that there was a genuine issue of material fact as to whether Wertman had probable cause or arguable probable cause to arrest Stansbury. This was error. Analyzing the evidence in its totality, we hold that no reasonable trier of fact could conclude that Wertman did not have probable cause to arrest and to prosecute Stansbury. We therefore reverse the district court's opinion and remand the case with instructions to enter judgment for Wertman.
At 8:30 p.m. on April 4, 2006, a woman shoplifted approximately $800 of goods from a Stop & Shop supermarket in Somers, New York. Mary Sue Cirrincione ("Cirrincione"), the store detective who was trained "to focus on distinctive facial characteristics," observed the crime on the store's three-inch by five-inch monitor. Cirrincione Decl.; see also Stansbury v. Wertman, No. 09-cv-04638-RJH, 2012 WL 183849, at *1 (S.D.N.Y. Jan. 24, 2012). Cirrincione alerted co-worker Mark John ("John"), who physically observed the perpetrator and watched her open tightly-folded, crisp, new Old Navy bags and place items from the shelves into the bags and then in her shopping cart. Id. When she tried to leave, John attempted to block the perpetrator's exit and asked to see her receipt; she ran around him, exited the building, and jumped into a white van. Id. John noted the van's license plate number as it drove away. Id.
Cirrincione and John reported the incident to the police, and New York State Trooper Chad Wertman arrived to investigate. Wertman recovered a bus receipt from an Old Navy bag the perpetrator had left behind. He watched the videotape of the theft and took the tape as evidence. Cirrincione and John both described the perpetrator as a "black female wearing blue jeans and a maroon windbreaker;" John added that she was "about 5'5"." Id. The bus ticket and license plate number did not yield any additional leads.
Noting that the perpetrator's Old Navy bags were in mint condition, Wertman traveled to one of the two nearby Old Navy stores. The Old Navy manager reported that a middle-aged black woman had attempted to buy some clothing at the store at 8:08 p.m. that evening, but that her credit card was declined. The manager
Wertman went to Stansbury's house on May 22 to interview Nicole. Wertman asserts that on his arrival, "he recognized Linda Stansbury as the perpetrator he had seen on the videotape." Id. He interviewed both women, but his "notes of the interview reflect that Linda was nervous, that she would not answer his questions directly, and that Nicole answered many of the questions he asked of her mother." Id.
After the interview, Wertman reviewed Stansbury's criminal history and discovered an arrest for grand larceny. He then obtained a DMV photograph of Stansbury and asked another trooper to prepare a photo array. Before the array was complete, Wertman and two senior officers reviewed the videotape, compared it to the DMV photograph and confirmed their collective belief that Stansbury was the perpetrator.
Wertman scheduled a follow-up interview with Linda and Nicole Stansbury at the police barracks in Somers. He planned to have Cirrincione and John come to the station and view Linda Stansbury to see if they could identify her as the shoplifter; the Stansburys never arrived. Id. at *3. Because the photo array was not yet ready, Wertman showed Stansbury's DMV photograph to Cirrincione and John without any control photographs, in violation of the New York State Police Field Manual ("Field Manual").
Stansbury was tried for petit larceny in Somers Town Court. After a two-day bench trial including testimony by Cirrincione and John, Stansbury was acquitted. Two years later she commenced this suit, alleging false arrest and malicious prosecution under 42 U.S.C. § 1983. Wertman moved for summary judgment; finding "genuine issues of material fact with respect to probable cause," the district court denied his motion in January 2012. Id. at *9. Wertman timely filed this appeal.
This Court has jurisdiction to hear interlocutory appeals of denials of motions for summary judgment where the motion is predicated in whole or in part on assertions of qualified immunity. See, e.g., Amore v. Novarro, 624 F.3d 522, 529 (2d Cir.2010). Wertman alleges both that he is entitled to qualified immunity based on the existence of arguable probable cause and that he is entitled to judgment as a
We may exercise pendent jurisdiction to decide whether Stansbury "has alleged a constitutional violation at all" before deciding whether Wertman is shielded by qualified immunity. Finigan v. Marshall, 574 F.3d 57, 61 (2d Cir.2009). Although it is no longer required, see Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), the probable cause inquiry may precede any inquiry into qualified immunity because there cannot be an allegation of a constitutional violation where probable cause justifies an arrest and prosecution. Panetta v. Crowley, 460 F.3d 388, 394-95 (2d Cir. 2006). In this case, it is "beneficial," Pearson, 555 U.S. at 236, 129 S.Ct. 808, to first address whether Wertman had probable cause, because it best serves the interests of judicial economy, see Escalera v. Lunn, 361 F.3d 737, 749 (2d Cir.2004). Thus, because the probable cause inquiry is inextricably intertwined with the immunity question, we will exercise our "discretion[] [to] consider otherwise nonappealable issues" based on our review of the question of qualified immunity. San Filippo v. U.S. Trust Co. of N.Y., Inc., 737 F.2d 246, 255 (2d Cir.1984); see also Golino v. City of New Haven, 950 F.2d 864, 868-69 (2d Cir.1991).
The standard of review here is well-established.
"`[P]robable cause is an absolute defense to a false arrest claim.'" Torraco v. Port Auth. of N.Y. and N.J., 615 F.3d 129, 139 (2d Cir.2010) (quoting Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir.2006)). "An officer has probable cause to arrest when he or she has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed ... a crime." Jaegly, 439 F.3d at 152. A court "must consider [only] those facts available to the officer at the time of the arrest and immediately before it." Panetta, 460 F.3d at 395 (internal quotation marks and emphasis omitted). A court examines each piece of evidence and considers its probative value, and then "look[s] to the totality of the circumstances" to evaluate whether there was probable cause to arrest and prosecute the plaintiff. Id. (quotation marks omitted). If probable cause existed, it presents a total defense to Stansbury's actions for false arrest and malicious prosecution; Wertman would be entitled to judgment as a matter of law. Savino v. City of New York, 331 F.3d 63, 75 (2d Cir.2003).
The district court analyzed five separate pieces of evidence before concluding that Wertman was not entitled to a probable cause determination:
Stansbury, 2012 WL 183849, at *4. The record also includes uncontested evidence that the district court chose not to analyze: the shoplifter's use and possession of pristine Old Navy bags; Wertman's observations of Stansbury's behavior during his interview; his knowledge of Stansbury's previous larceny arrest; and similarities between Stansbury's handbag and the perpetrator's handbag.
The district court began its discussion by analyzing the evidence related to the videotape — including Wertman's identification of Stansbury in person, his colleagues' corroborating identifications of Stansbury based on her DMV photograph, and the videotape itself. The district court noted that the evidence was probative, but not sufficient, finding that nothing in it was so persuasive "that a jury would be unreasonable in concluding that the videotape was not `sufficient to warrant a person of reasonable caution'" in concluding that Stansbury was the perpetrator. Id. (quoting Jaegly, 439 F.3d at 152). We do not disagree with the court here, but that does not end the inquiry. The district court noted that "[t]here are several instances on the videotape where the perpetrator's face appears with some definition," though the perpetrator's face did not appear to perfectly match Stansbury's DMV photo. Id. The visibility of the perpetrator on the tape makes Wertman's identification probative and allows the other officers' identifications based on the tape to
After disposing of the videotape, the court proceeded to analyze the identifications made by Cirrincione and John at the police barracks. As an initial matter, the district court rightly condemned the use of a one-photograph array to confirm identity. Id. at *5 (decrying the absence of indicia of reliability spelled out in Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). Showing suspects "singly to persons for the purpose of identification... has been widely condemned," even when done in person. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), (overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). The use of a single photograph of the suspect is not more reliable.
However, "absent circumstances that raise doubts as to the victim's veracity," a victim's identification is typically sufficient to provide probable cause. Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir.1995) (holding that a store clerk's description of an incident of shoplifting supported a finding of probable
The shoplifter's Old Navy bags, which in the video appear never to have been unfolded or used, properly narrowed Wertman's investigation to the universe of people who may have visited an Old Navy shortly before the robbery. Wertman's discovery that unused bags were seen strewn on the floor at a nearby store 22 minutes before the robbery, around the time a "middle aged black woman" used Nicole Stansbury's credit card at Old Navy, was undoubtedly relevant to assessing his probable cause determination. This circumstantial evidence that Stansbury may have had an opportunity to obtain
When Wertman interviewed the Stansburys about their presence at Old Navy, he observed that Linda Stansbury was very nervous and evasive. Furthermore, Wertman noticed that Nicole tried to cover for her mother during the interview. A police officer's contemporaneously recorded observation that a suspect was evasive when questioned may be a significant factor in a probable cause determination. See, e.g., United States v. Gagnon, 373 F.3d 230, 238 (2d Cir.2004).
Other evidence tending to make it more likely that Stansbury was the Stop & Shop culprit included Wertman's knowledge of her 1997 arrest for grand larceny in White Plains and Wertman's comparison of her handbag to the perpetrator's handbag as observed on the video. Though neither piece of information individually yields a significant step towards establishing probable cause, the district court should have considered both as part of the totality of circumstances. Similarly, John's assertion that the perpetrator was 5'5" tall (in light of Stansbury's 5'9" stature) is part of the total mix of evidence necessary to properly evaluate Wertman's decision to arrest Stansbury.
The district court analyzed the evidence seriatim, finding that no piece of evidence was sufficient in itself to establish arguable probable cause. Stansbury, 2012 WL 183849, at *4-6. Although it adequately evaluated the pieces of evidence that it chose to consider, the district court erred insofar as it did not account for the evidence "on the totality of the circumstances." Jenkins v. City of New York, 478 F.3d 76, 90 (2d Cir.2007) (citing Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)).
The totality of the circumstances test is no mere formality; it may frequently alter the outcome of a case. "Those who do not take into account conditional probability are prone to making mistakes in judging evidence. They may think that if a particular fact does not itself prove the ultimate proposition (e.g., whether the [officer had probable cause]), the fact may be tossed aside and the next fact may be evaluated as if the first did not exist." Al-Adahi v. Obama, 613 F.3d 1102,
The district court looked to our efforts in Jenkins v. City of New York to support its determination.
This Court held that the officers developed probable cause only after the second and third identifications (which, though flawed, were procedurally superior to the first lineup). Id. at 93. The totality of the evidence available to the police at that time included: (1) Jenkins' presence in Blyther's apartment days after the crimes; (2) Jenkins' race and gender, which corresponded with the accomplice's race and gender; (3) a witness's coerced and therefore meaningless identification of Jenkins; and (4) two victims' identifications of Jenkins in subsequent "less than perfect" lineups. Id. at 90-93. Although the first three pieces of evidence were insufficient, all four combined established probable cause. Id. at 93.
The totality of evidence in this case exceeds the evidence the NYPD possessed in Jenkins following the third lineup. Although the identifications from the photographic array in this case were less probative than even the two imperfect lineups in Jenkins, the evidence implicated Stansbury before any flawed identification. Prior to the identifications, Wertman was aware that, 22 minutes before the shoplifting, a middle-aged black woman had used Nicole Stansbury's credit card at a nearby Old Navy and that new shopping bags were seen strewn on the floor near the exit
On top of the circumstantial evidence against Stansbury, five individuals (including three trained officers and two innocent victims with no alleged motive to lie, one of whom had training in facial identification) could not distinguish her from the perpetrator in admittedly flawed photographic arrays. The two victims submitted sworn affidavits expressing no uncertainty that Stansbury was the perpetrator. The fact that the victims did not offer timely detailed descriptions of the perpetrator means that probable cause could not be based on Stansbury's matching these descriptions; it does not mean that the victims could not meaningfully identify Stansbury. The district court misstated the factual record in asserting that "the most the Court can say is undisputed is that Cirrincione and John told Wertman that the shoplifter was a black female who was wearing a maroon windbreaker and blue jeans." Stansbury, 2012 WL 183849, at *7. Such a description might, as the lower court suggested, be comparable to Jenkins; however, there is significantly more evidence here.
John's claim that the perpetrator was 5'5" tall is evidence indicating that Stansbury could be innocent, but this evidence was outweighed by the mountain of evidence to the contrary. Boyd v. City of New York, 336 F.3d 72, 74, 77 (2d Cir. 2003). In Boyd, the police had probable cause to make an arrest based on Boyd's purchase of a stolen car, even though the car did not "look stolen" and Boyd may not have known it was stolen. Id. (asserting, however, that there was not probable cause to support a prosecution). Boyd reaffirms that some exculpatory evidence does not make an arrest illegal when the totality of evidence still establishes probable cause to believe that the suspect committed the crime. Such is the case here, where the only exculpatory evidence is a guess from a store employee as to the perpetrator's height that was off by four inches. This deficiency, if it was one, was overcome by other evidence, including a positive, sworn identification by the same employee.
Because there was an identifiable crime and a substantial volume of contemporaneously-recorded, uncontroverted circumstantial evidence that supported the conclusion that Stansbury was the perpetrator, Wertman had probable cause to arrest Stansbury. No reasonable juror could have held that Wertman did not have probable cause to believe that Stansbury had committed the larceny at the Stop & Shop.
Because lack of probable cause is an element of a malicious prosecution claim, "the existence of probable cause is a complete defense to a claim of malicious
The probable cause standard in the malicious prosecution context is slightly higher than the standard for false arrest cases. Boyd, 336 F.3d at 76. "Probable cause, in the context of malicious prosecution, has also been described as such facts and circumstances as would lead a reasonably prudent person to believe the plaintiff guilty." Id. For the reasons discussed above, the uncontroverted evidence adduced in Wertman's investigation suffices to meet that standard.
As a matter of law, the uncontroverted facts in this case created probable cause to initiate Stansbury's prosecution for petit larceny; Wertman was therefore entitled to judgment as a matter of law.
"Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Scott, 550 U.S. at 380, 127 S.Ct. 1769 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Ignoring frivolous allegations, the documented record establishes uncontroverted facts that, taken together, provided probable cause for the arrest and prosecution of Linda Stansbury. Officer Wertman is therefore entitled to judgment as a matter of law.
For the foregoing reasons, the opinion and order of the district court is