Finigan v. Marshall, No. 07-0964 (2d Cir. 2009)
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07-0964-cv Finigan v. Marshall 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 (Argued: January 6, 2009 Decided: July 28, 2009) Docket No. 07-0964-cv - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - GENEVA FINIGAN, Plaintiff-Counter-Defendant-Appellee, v. WILLIAM E. MARSHALL, Individually and in His Official Capacity as Deputy Sheriff of the County of Saratoga, New York, Defendant-Counterclaimant-Appellant.* 21 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 22 23 24 B e f o r e: 25 States District Court for the Northern District of New York 26 (David N. Hurd, Judge) in a Section 1983 false arrest action. 27 Because the defendant had probable cause for the arrest, the 28 plaintiff suffered no constitutional violation. 29 vacate the district court s judgment with respect to that claim WINTER, KATZMANN, and RAGGI, Circuit Judges. Appeal from a denial of qualified immunity by the United * We therefore The Clerk of the Court is instructed to amend the official caption in this case to conform to the listing of parties above. 1 2 3 4 5 6 7 8 9 10 11 12 and remand for proceedings consistent with this opinion. JOHN D. ASPLAND, JR. (William A. Scott, of counsel), FitzGerald Morris Baker Firth P.C., Glens Falls, New York, for Appellant. DENNIS B. SCHLENKER, Law Office of Dennis B. Schlenker, Albany, New York, for Appellee. WINTER, Circuit Judge: William E. Marshall, Deputy Sheriff of Saratoga County, 13 appeals from Judge Hurd s denial of qualified immunity from a 14 claim of false arrest. 15 to her former marital residence, where her estranged husband 16 resided, while he was not at home and without his permission, to 17 remove personal property. 18 burglary-in-progress report, arrived at the scene and took 19 Finigan into custody. 20 been charged with a crime, she brought a Section 1983 action 21 against Marshall in his individual and official capacity on 22 theories of false arrest and abuse of process in violation of 23 rights secured by the Fourth and Fourteenth Amendments. 24 U.S.C. § 1983. On December 26, 2003, Geneva Finigan went Marshall, responding to a 911 After Finigan was released without having See 42 The district court granted Marshall s motion for 2 1 summary judgment as to the abuse of process claim,1 but denied it 2 as to the false arrest claim, concluding that Marshall did not 3 have probable cause and was not entitled to qualified immunity. 4 We conclude that, even though appellee shared title to the 5 house with her estranged husband, Marshall had probable cause to 6 arrest Finigan. 7 judgment with respect to that claim and remand for proceedings 8 consistent with this opinion. 9 10 We therefore vacate the district court s BACKGROUND The relevant events giving rise to this appeal are not in 11 dispute. 12 community of Stillwater in Saratoga County, New York. 13 2003, Finigan separated from her husband of twenty-eight years, 14 Robert Finigan, and moved out of their marital home ( the 15 premises ). By the fall of that same year, divorce proceedings 16 had begun. As of December 2003, the divorce proceedings remained 17 pending, and Finigan remained a titled owner of her former 18 residence, there having been no equitable distribution of 19 property. See Note 2, infra. They took place in the small 1 In April The district court dismissed the abuse of process claim on the ground that the undisputed facts showed that Marshall had not issued any legal process against Finigan. This portion of the district court s decision is not before us on this appeal. The district court also denied Marshall s motion for leave to apply for attorney s fees pursuant to 42 U.S.C. § 1988. 3 1 As is common in a small community, the major players in the 2 relevant events had overlapping personal histories. 3 Finigan was a member of the town ambulance corps and occasionally 4 interacted socially with Marshall. 5 brother-in-law and neighbor, was Marshall s close friend. 6 Marshall, Robert Finigan, and Geneva Finigan all attended the 7 same high school. 8 Robert Robert Wood, Robert Finigan s On or around December 21, 2003, appellee learned that her 9 future ex-husband would be away for the Christmas holidays. 10 Although aware that her husband had changed the locks, she 11 decided to remove some items without his knowledge. 12 Finigan went to the premises on December 24, 2003, and 13 called a locksmith. 14 the premises as her address and falsely told him she had lost her 15 keys. 16 few items of personal property, Finigan left the premises, 17 leaving the basement door unlocked. She showed him her driver s license listing He then opened the back door for her. After removing a 18 On December 26, 2003, Finigan, accompanied by several family 19 members, including her brother, Everett Folmsbee, returned to the 20 premises with a van to retrieve more personal property such as 21 furniture, appliances, and linens. 22 loaded the van and drove to a friend s house where she planned to 23 store the property. 4 After about an hour, Finigan 1 Meanwhile, Marshall, who was on patrol approximately twenty- 2 five miles away in Galway, responded to a report of a burglary- 3 in-progress in Stillwater. 4 premises as the residence of Robert Finigan. 5 knowledge that Robert Finigan resided there alone, that Geneva 6 Finigan had moved out sometime before, and that divorce 7 proceedings were pending. 8 Finigan s brother, Folmsbee, and asked his purpose for being on 9 the premises. Upon arrival, he recognized the He had personal Marshall also recognized Geneva Folmsbee explained that he was helping his sister 10 retrieve some items. 11 brother-in-law and neighbor, Robert Wood, arrived on the scene. 12 Wood told Marshall that he was watching the premises for Robert 13 Finigan while Finigan was away for the holidays. 14 brother-in-law had changed the locks, Wood expressed uncertainty 15 as to how Geneva Finigan had obtained access to the premises. 16 Shortly thereafter, Robert Finigan s Because his After having unloaded the van at her friend s house, Geneva 17 Finigan received a phone call from Folmsbee, who informed her 18 that Bill Marshall [was at the premises] to arrest [her]. 19 Geneva Finigan returned to the premises where Marshall inquired 20 whether she had removed property. 21 so without her husband s knowledge. 22 to get into the back seat of his patrol car, whereupon he resumed 23 his questioning. She admitted that she had done Marshall then directed her Geneva Finigan informed him that she had legal 5 1 title to the residence, that she was removing only her own 2 property, and that her divorce attorney told her she could do so. 3 Marshall made no attempt to verify whether Finigan held legal 4 title, nor did he make any other inquiries at the scene. 5 Instead, he transported her to the Stillwater police station 6 where she was read her rights. 7 Marshall placed Finigan under arrest or at the station, Finigan 8 informed Marshall that she had used the services of a locksmith 9 to enter the premises. 10 11 At some point, either just before Marshall ultimately released Finigan, who was never charged with a crime. Marshall moved for summary judgment asserting the existence 12 of probable cause or qualified immunity. 13 denied the motion. 14 when, armed and uniformed, he directed Finigan to get into the 15 back seat of his patrol car. 16 court noted that Marshall had failed to investigate whether 17 Finigan was legally entitled to enter the residence by virtue of 18 her title to the property and had failed to corroborate Wood s 19 statements indicating that Finigan did not have permission to 20 enter the premises. 21 was difficult to envision any crime of which [Finigan] may have 22 been guilty. The district court It concluded that Marshall arrested Finigan As to probable cause, the district Consequently, the court concluded that it Therefore, Marshall did not, as a matter of law, 6 1 have probable cause to arrest Finigan and was therefore not 2 entitled to qualified immunity. 3 4 DISCUSSION On appeal,2 Marshall contends that the district court erred 5 when it denied his motion for summary judgment because he had 6 probable cause to arrest Finigan for burglary, or in the 7 alternative, because he was entitled to qualified immunity. 8 Finigan argues that because she was a titled owner of the real 9 and personal property at issue, Marshall possessed no reliable 10 information that Finigan had committed, or was about to commit, a 2 As a general rule, the denial of summary judgment is not immediately appealable. See 28 U.S.C. § 1291. The collateral order doctrine, however, allows review of a district court s denial of summary judgment on the ground that the movant was not entitled to qualified immunity to the extent that the district court has denied the motion as a matter of law. Moore v. Andreno, 505 F.3d 203, 207 (2d Cir. 2007) (quoting O'Bert ex rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 38 (2d Cir. 2003)). This exception to the ordinary rule of finality effectuates the privilege s underlying purpose, which is not merely to provide a defense to liability, but to provide immunity from suit. Walczyk v. Rio, 496 F.3d 139, 153 (2d Cir. 2007). The existence of probable cause and a defendant s entitlement to qualified immunity may be determined as a matter of law to the extent that the issues may be resolved on undisputed facts establishing the pertinent events and the knowledge of the officer at the time of the arrest. See Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 760-61 (2d Cir. 2003). The principal discrepancy between the parties versions of the events is with respect to whether Finigan told Marshall that she had called a locksmith to let her into the premises before or after she was arrested. Because this issue is irrelevant to Marshall s claims, our jurisdiction is not in question. See Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) ( [W]e have jurisdiction to review a denial of qualified immunity to the extent it can be resolved on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find. (quoting Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996))). 7 1 crime. 2 cause for the arrest and is not entitled to qualified immunity. 3 For the reasons that follow, we conclude that Marshall had 4 5 Thus, Finigan argues that Marshall did not have probable probable cause to arrest Finigan. We review the district court s denial of a summary judgment 6 motion based on a defense of qualified immunity de novo. 7 v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006). 8 to undisputed facts establishing the defense as a matter of law. 9 Id. (citing Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir. 10 11 Jones We limit ourselves 1992)). Before deciding whether Marshall is entitled to qualified 12 immunity, we must decide whether Finigan has alleged a 13 constitutional violation at all. 3 14 261 F.3d 229, 235 (2d Cir. 2001); see also Jones, 465 F.3d at 55. 15 Finigan cannot recover for false arrest if Marshall had probable 16 cause to arrest her. 17 F.3d 110, 118 (2d Cir. 1995). 18 to arrest are ultimately found not to have existed, an arresting 19 officer will nonetheless be entitled to immunity from suit based Kerman v. City of New York, See Singer v. Fulton County Sheriff, 63 If facts supporting probable cause 3 A plaintiff must also show that the right violated was clearly established. The Supreme Court recently held that while lower courts are no longer required to address these prongs in any particular order, it recognized that it is often beneficial to do so. Pearson v. Callahan, 555 U.S. ----, ----, 129 S. Ct. 808, 818 (2009). Doing so here is beneficial because the plaintiff is unable to establish the violation of a constitutional right, and thus, we need not reach the second prong. 8 1 on arguable probable cause, which requires that he or she show 2 that it was objectively reasonable to believe that probable cause 3 existed or that officers of reasonable competence could 4 disagree on whether the probable cause test was met. 5 v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (quoting Golino v. City 6 of New Haven, 950 F.2d 864, 870 (2d Cir. 1991)). 7 Escalera In determining whether there was probable cause, our inquiry 8 is an objective one that focuses on the facts available to the 9 arresting officer at the time of the arrest. Jaegly v. Couch, 10 439 F.3d 149, 154 (2d Cir. 2006). 11 based on the totality of circumstances, the officer has 12 knowledge of, or reasonably trustworthy information as to, facts 13 and circumstances that are sufficient to warrant a person of 14 reasonable caution in the belief that an offense has been or is 15 being committed by the person to be arrested. 16 Summerlin, 494 F.3d 344, 368 (2d Cir. 2007); see also Panetta v. 17 Crowley, 460 F.3d 388, 395 (2d Cir. 2006). 18 here. 19 Probable cause exists when, Zellner v. Such is the case Under New York law, a person is guilty of burglary in the 20 second degree when he or she knowingly enters or remains 21 unlawfully in a [dwelling] with [the] intent to commit a crime 22 therein. 23 lesser included offense of burglary. N.Y. Penal Law § 140.25. 9 Criminal trespass is a People v. Devonish, 843 1 N.E.2d 1120, 1120 (N.Y. 2005). 2 trespass in the second degree when he [or she] knowingly enters 3 or remains unlawfully in a dwelling. 4 A person enters or remains unlawfully in or upon premises when 5 he [or she] is not licensed or privileged to do so. 6 140.00(5). 7 A person commits criminal N.Y. Penal Law § 140.15. Id. § In our view, there was probable cause to arrest Geneva 8 Finigan for criminal trespass in the second degree. 9 of the arrest, Marshall knew the following: At the time a report of a 10 burglary at the address of the premises had been made; Geneva 11 Finigan no longer resided at the premises; a divorce proceeding 12 between Robert and Geneva Finigan was pending; Robert Finigan had 13 changed the locks; Robert Finigan was away; Geneva Finigan had 14 entered the premises and had removed property; and a neighbor, 15 who was watching the house for Robert, had no idea how Geneva 16 entered the premises. 17 statements, and from Geneva s own statements that her entry was 18 based on her own legal rights, that Robert had not consented to 19 her entry into the premises. 20 information constituted probable cause for an arrest for criminal 21 trespass. 22 23 It was evident from the neighbor s See Panetta, 460 F.3d at 396. That Appellee s argument rests heavily on her having shared title to the home and ownership of the items removed and on Marshall s 10 1 failure to verify that claim of title. 2 right of entry under the circumstances described above, and title 3 does not provide an absolute right to enter at times of one s 4 choosing without the permission of an occupant. 5 However, the issue is her The principal purpose of New York s burglary statute is the 6 protection of habitation rights, and the right of entry does not 7 turn solely on the existence of an ownership interest. 8 title to a property is jointly held as tenants by the entirety 9 but one spouse is the sole resident, the consent of the non- Where 10 resident spouse alone does not, as a matter of law, establish a 11 license or privilege to enter. 12 law, a non-resident spouse who is a titled owner of a house and 13 enters without the permission of the resident spouse may be 14 convicted of burglarizing his or her own property. 15 Glanda, 774 N.Y.S.2d 576, 581-82 (N.Y. App. Div. 2004) ( an owner 16 can properly be convicted of burglarizing premises he owns but 17 which are occupied by another ) (collecting cases); cf. Milillo 18 v. Milillo, 748 N.Y.S.2d 850, 851, 853-54 (N.Y. Fam. Ct. 2002) 19 (rejecting husband s argument that as former resident and joint 20 tenant by the entirety of marital residence, he was legally 21 entitled to enter at will, on facts that essentially 22 constitute[d] a burglary or trespass in a family offense 23 action); People v. Cheyne, 402 N.Y.S.2d 971, 972 (N.Y. Dist. Ct. To the contrary, under New York 11 People v. 1 1978) (upholding trespass conviction of divorced husband despite 2 honest belief of license or privilege to remain after exclusive 3 possession of premises awarded to divorced wife). 4 case even though tenants by the entirety usually share equal 5 rights to possess and enjoy the property. 6 at 581. 7 obtain a court order affording supervised entry and removal of 8 the property, her resort to self-help stands on a different 9 footing. 10 This is the Glanda, 774 N.Y.S.2d Therefore, while title might have enabled Finigan to However paradoxical such a legal rule may seem at first 11 blush, a contrary rule could lead to circumstances fraught with 12 danger.4 13 might have been without great danger, but other spouses in 14 divorce proceedings may have less reliable guarantees that the 15 estranged spouse will be absent from the premises and will not 16 use force to resist entry. 17 attempt to enter precisely because the other spouse is on the 18 premises. 19 premises by non-resident spouses by requiring officials to stay Geneva Finigan s particular entry into the premises And angry title-holding spouses may The rule would also seem to permit looting of the 4 The New York Court of Appeals has emphasized the strong public policy against self-help by forcible means to enter premises by one who believes them wrongfully closed. See People v. Horelick, 285 N.E.2d 864, 865 (N.Y. 1972) ( [U]ltimately, analyses related to claims of right by owners and others entitled to rights of entry under property law [are immaterial]. Even such property rights, by still being subject to restrictions on the use of force, emphasize the policy against self-help by force or other illegal methods. ). 12 1 their hand while checking on title to real estate or personal 2 property. 3 Ct. 1997).5 4 See People v. Hudson, 658 N.Y.S.2d 800, 801 (N.Y. Co. Appellee also argues that, for probable cause to exist, 5 Marshall needed to conclude at the time of the arrest that 6 Finigan had entered the premises knowing that she had no license 7 or privilege to enter. 8 belief of license or privilege to enter negates the knowing 9 unlawful entry element of the criminal trespass statute, Finigan 10 argues that her belief that her legal title conferred a right of 11 entry to the premises defeats a finding of probable cause as a 12 matter of law. As a corollary, because a reasonable 13 These arguments incorrectly assume that an officer must have 14 proof of each element of a crime and negate any defense before an 15 arrest. 16 not persuade a jury to convict for criminal trespass because of 17 Finigan s belief in her right of entry, [o]nce officers possess 18 facts sufficient to establish probable cause, they are neither 19 required nor allowed to sit as prosecutor, judge or jury. However, even if the total sum of evidence here might 5 Their Finigan makes much of the myriad connections between Marshall and the various actors in this small town drama. To the extent that this concern is intended to allege an improper motive for the arrest, we note that our inquiry here is an objective one. When an officer confronted with a claim of unlawful arrest establishes probable cause, we do not consider his motivation in making the arrest. See Singer, 63 F.3d at 120. This is not to suggest that, apart from the various relationships, there is any evidence of an improper motive. 13 1 function is to apprehend those suspected of wrongdoing, and not 2 to finally determine guilt through a weighing of the evidence." 3 Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989). 4 available at the time of the arrest need only cause a person of 5 reasonable caution to believe that a crime had been or was about 6 to be committed, a threshold that was easily met here. 7 8 9 The facts CONCLUSION For the foregoing reasons, we conclude Marshall had probable cause to arrest Finigan. We therefore vacate the district 10 court s judgment with respect to that claim and remand for 11 proceedings consistent with this opinion. 12 13 14 15 16 17 18 19 20 21 22 23 14
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