Stansbury v. Wertman, No. 12-713 (2d Cir. 2013)
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Plaintiff brought this action under 42 U.S.C. 1983 against defendant, the officer who arrested her, alleging false arrest and malicious prosecution. On appeal, defendant challenged the district court's denial of his motion for summary judgment. The court concluded that the record established uncontroverted facts that, taken together, provided probable cause for the arrest and prosecution of plaintiff. Therefore, defendant was entitled to judgment as a matter of law. Accordingly, the court reversed and remanded with instructions for the district court to grant defendant's motion for summary judgment.
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12-713-cv Stansbury v. Wertman 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: March 11, 2013 Decided: June 26, 2013) Docket No. 12-713-cv LINDA STANSBURY, Plaintiff-Appellee, -v.CHAD WERTMAN, Defendant-Appellant, JOSEPH LUTZ AND JOHN DOES 1 THROUGH 10, Defendants.* Before: WALKER, SACK, AND WESLEY, Circuit Judges. Plaintiff-Appellee Linda Stansbury initiated this action in the United States District Court for the Southern District of New York (Holwell, Judge) pursuant to 42 U.S.C. § 1983 alleging false arrest and malicious prosecution. Defendant* The Clerk of the Court is directed to amend the caption in the case to conform with the above. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Appellant Chad 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. Defendant timely appeals from the district court s January 24, 2012 opinion and order denying Defendant s motion for summary judgment. We find that the district court erred by analyzing the evidence seriatim and in isolation. In its totality, the evidence provided Defendant with probable cause to arrest and prosecute Plaintiff; we therefore hold that Defendant is entitled to judgment as a matter of law and REVERSE the judgment of the district court and REMAND with instruction to enter judgment in favor of Wertman. 38 2012 opinion and order of the United States District Court 39 for the Southern District of New York (Holwell, J.) denying 40 Wertman s motion for summary judgment. REVERSED and REMANDED with instruction to enter judgment in favor of Wertman. SUDARSANA SRINIVASAN, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Cecelia C. Chang, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Appellant Chad Wertman. RANDOLPH M. McLAUGHLIN (Jeffrey M. Norton, on the brief), Newman Ferrara LLP, New York, NY, for Appellee Linda Stansbury. WESLEY, Circuit Judge: Chad Wertman ( Wertman ) appeals from the January 24, 2 Linda Stansbury 1 ( Stansbury ) brought this action pursuant to 42 U.S.C. 2 § 1983 alleging false arrest and malicious prosecution. 3 Wertman moved for summary judgment, asserting that (1) there 4 was probable cause for the arrest and prosecution, or, in 5 the alternative that (2) he was entitled to qualified 6 immunity based on the existence of arguable probable cause. 7 The district court analyzed each piece of evidence in 8 the case seriatim and in isolation and concluded that there 9 was a genuine issue of material fact as to whether Wertman 10 had probable cause or arguable probable cause to arrest 11 Stansbury. 12 totality, we hold that no reasonable trier of fact could 13 conclude that Wertman did not have probable cause to arrest 14 and to prosecute Stansbury. 15 district court s opinion and remand the case with 16 instructions to enter judgment for Wertman. This was error. Analyzing the evidence in its We therefore reverse the Background 17 18 At 8:30 p.m. on April 4, 2006, a woman shoplifted 19 approximately $800 of goods from a Stop & Shop supermarket 20 in Somers, New York. 21 the store detective who was trained to focus on distinctive 22 facial characteristics, observed the crime on the store s Mary Sue Cirrincione ( Cirrincione ), 3 1 three-inch by five-inch monitor. Cirrincione Decl.; see 2 also Stansbury v. Wertman, No. 09-cv-04638-RJH, 2012 WL 3 183849 at *1 (S.D.N.Y. Jan. 24, 2012). 4 co-worker Mark John ( John ), who physically observed the 5 perpetrator and watched her open tightly-folded, crisp, new 6 Old Navy bags and place items from the shelves into the bags 7 and then in her shopping cart. 8 leave, John attempted to block the perpetrator s exit and 9 asked to see her receipt; she ran around him, exited the Id. Cirrincione alerted When she tried to 10 building, and jumped into a white van. Id. John noted the 11 van s license plate number as it drove away. Id. 12 Cirrincione and John reported the incident to the 13 police, and New York State Trooper Chad Wertman arrived to 14 investigate. 15 Navy bag the perpetrator had left behind. 16 videotape of the theft and took the tape as evidence. 17 Cirrincione and John both described the perpetrator as a 18 black female wearing blue jeans and a maroon windbreaker; 19 John added that she was about 5'5". 20 and license plate number did not yield any additional leads. 21 Noting that the perpetrator s Old Navy bags were in 22 Wertman recovered a bus receipt from an Old Id. He watched the The bus ticket mint condition, Wertman traveled to one of the two nearby 4 1 Old Navy stores. The Old Navy manager reported that a 2 middle-aged black woman had attempted to buy some clothing 3 at the store at 8:08 p.m. that evening, but that her credit 4 card was declined. 5 typically stored in the rear of the store, were discovered 6 strewn on the ground near the door around the same time. 7 Id. at *2. 8 belonging to Nicole Stansbury ( Nicole ), Linda Stansbury s 9 daughter. The manager reported that new bags, Wertman traced the credit card receipt to a card After repeated attempts, Wertman was able to 10 contact Nicole by telephone; she alleged that she had been 11 in Old Navy on April 4 12 and returning to her mother s house. 13 before visiting an A&P supermarket Wertman went to Stansbury s house on May 22 to 14 interview Nicole. 15 recognized Linda Stansbury as the perpetrator he had seen on 16 the videotape. 17 notes of the interview reflect that Linda was nervous, that 18 she would not answer his questions directly, and that Nicole 19 answered many of the questions he asked of her mother. 20 Wertman asserts that on his arrival, he Id. He interviewed both women, but his Id. After the interview, Wertman reviewed Stansbury s 21 criminal history and discovered an arrest for grand larceny. 22 He then obtained a DMV photograph of Stansbury and asked 5 1 another trooper to prepare a photo array. Before the array 2 was complete, Wertman and two senior officers reviewed the 3 videotape, compared it to the DMV photograph and confirmed 4 their collective belief that Stansbury was the perpetrator. 5 Wertman scheduled a follow-up interview with Linda and 6 Nicole Stansbury at the police barracks in Somers. He 7 planned to have Cirrincione and John come to the station and 8 view Linda Stansbury to see if they could identify her as 9 the shoplifter; the Stansburys never arrived. Id. at *3. 10 Because the photo array was not yet ready, Wertman showed 11 Stansbury s DMV photograph to Cirrincione and John without 12 any control photographs, in violation of the New York State 13 Police Field Manual ( Field Manual ).1 14 John identified Stansbury as the perpetrator and signed a 15 sworn statement under penalty of perjury to that effect. 16 Cirrincione confirmed without any doubt or reservation 17 that Stansbury was the perpetrator, and John was positively 18 without a doubt able to identify her as the thief. 19 Wertman spoke with her attorney, Stansbury turned herself in 20 the next day; she was listed as 5'9" tall upon arrest. 1 Both Cirrincione and After The Field Manual instructs officers to NEVER show a single photo of a suspect to a witness. It also instructs officers to separate witnesses when showing them photographs of the suspect and to consult the district attorney s office before conducting a photo array with fewer than six photographs included thereon. 6 Stansbury was tried for petit larceny in Somers Town 1 2 Court. After a two-day bench trial including testimony by 3 Cirrincione and John, Stansbury was acquitted. 4 later she commenced this suit, alleging false arrest and 5 malicious prosecution under 42 U.S.C. § 1983. 6 for summary judgment; finding genuine issues of material 7 fact with respect to probable cause, the district court 8 denied his motion in January 2012. 9 timely filed this appeal. Id. at *9. Two years Wertman moved Wertman 10 Discussion 11 12 13 I. Jurisdiction and Standard of Review This Court has jurisdiction to hear interlocutory 14 appeals of denials of motions for summary judgment where the 15 motion is predicated in whole or in part on assertions of 16 qualified immunity. 17 522, 529 (2d Cir. 2010). 18 entitled to qualified immunity based on the existence of 19 arguable probable cause and that he is entitled to judgment 20 as a matter of law based on the existence of probable cause. 21 22 See, e.g., Amore v. Novarro, 624 F.3d Wertman alleges both that he is We may exercise pendent jurisdiction to decide whether Stansbury has alleged a constitutional violation at all 7 1 before deciding whether Wertman is shielded by qualified 2 immunity. 3 2009). 4 Callahan, 555 U.S. 223, 236 (2009), the probable cause 5 inquiry may precede any inquiry into qualified immunity 6 because there cannot be an 7 violation where probable cause justifies an arrest and 8 prosecution. 9 Cir. 2006). Finigan v. Marshall, 574 F.3d 57, 61 (2d Cir. Although it is no longer required, see Pearson v. allegation of a constitutional Panetta v. Crowley, 460 F.3d 388, 394-95 (2d In this case, it is beneficial, Pearson, 555 10 U.S. at 236, to first address whether Wertman had probable 11 cause, because it best serves the interests of judicial 12 economy, see Escalera v. Lunn, 361 F.3d 737, 749 (2d Cir. 13 2004). 14 inextricably intertwined with the immunity question, we will 15 exercise our discretion[] [to] consider otherwise 16 nonappealable issues based on our review of the question of 17 qualified immunity. 18 Inc., 737 F.2d 246, 255 (2d Cir. 1984); see also Golino v. 19 City of New Haven, 950 F.2d 864, 868-69 (2d Cir. 1991). 20 Thus, because the probable cause inquiry is San Filippo v. U.S. Trust Co. Of N.Y., The standard of review here is well-established.2 2 We We review denials of summary judgment de novo, construing all evidence in the light most favorable to the non-moving party, drawing all inferences and resolving all ambiguities in [her] favor. Amore v. Novarro, 624 F.3d 522, 529 (2d Cir. 2010). 8 1 conclude that Wertman had both probable cause and arguable 2 probable cause to arrest and prosecute Stansbury; the 3 district erred in denying Wertman s motion for summary 4 judgment as to the false arrest and malicious prosecution 5 claims. 6 7 8 9 II. False Arrest [P]robable cause is an absolute defense to a false arrest claim. Torraco v. Port Auth. of N.Y. and N.J., 615 10 F.3d 129, 139 (2d Cir. 2010) (quoting Jaegly v. Couch, 439 11 F.3d 149, 152 (2d Cir. 2006)). 12 cause to arrest when he or she has knowledge or reasonably 13 trustworthy information of facts and circumstances that are 14 sufficient to warrant a person of reasonable caution in the 15 belief that the person to be arrested has committed . . . a 16 crime. 17 [only] those facts available to the officer at the time of 18 the arrest and immediately before it. 19 395 (internal quotation marks and emphasis omitted). A 20 court examines each piece of evidence and considers its 21 probative value, and then look[s] to the totality of the 22 circumstances to evaluate whether there was probable cause 23 to arrest and prosecute the plaintiff. An officer has probable Jaegly, 439 F.3d at 152. 9 A court must consider Panetta, 460 F.3d at Id. (quotation marks 1 omitted). 2 defense to Stansbury s actions for false arrest and 3 malicious prosecution; Wertman would be entitled to judgment 4 as a matter of law. 5 63, 75 (2d Cir. 2003).3 6 A. 7 If probable cause existed, it presents a total Savino v. City of New York, 331 F.3d Available Evidence as to Probable Cause4 The district court analyzed five separate pieces of 8 evidence before concluding that Wertman was not entitled to 9 a probable cause determination: (1) Cirrincione s and John s eyewitness accounts of the shoplifting; (2) the store surveillance tape; (3) [Wertman s] identification of Stansbury as the perpetrator on the surveillance tape; (4) [other officers ] opinion[s] that Stansbury s DMV picture matched the perpetrator depicted on the surveillance tape; and (5) Cirrincione s and John s photo identification. 10 11 12 13 14 15 16 17 18 19 Stansbury, 2012 WL 183849, at *4. 20 uncontested evidence that the district court chose not to The record also includes 3 In analyzing arguable probable cause for Wertman s qualified immunity defense, we examine the same evidence under the same circumstances and evaluate whether it was objectively reasonable for the officer to conclude that probable cause existed. Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007). If an officer had probable cause, he or she also had arguable probable cause and is protected by qualified immunity. 4 The evidence in this section is listed in the district court s opinion and is not meaningfully contested by the parties. Insofar as Stansbury claims that some of the documentation in the record is invalid or does not exist, such assertions do not constitute a genuine dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007). 10 1 analyze: 2 Old Navy bags; Wertman s observations of Stansbury s 3 behavior during his interview; his knowledge of Stansbury s 4 previous larceny arrest; and similarities between 5 Stansbury s handbag and the perpetrator s handbag. 6 the shoplifter s use and possession of pristine The district court began its discussion by analyzing 7 the evidence related to the videotape including Wertman s 8 identification of Stansbury in person, his colleagues 9 corroborating identifications of Stansbury based on her DMV 10 photograph, and the videotape itself. 11 noted that the evidence was probative, but not sufficient, 12 finding that nothing in it was so persuasive that a jury 13 would be unreasonable in concluding that the videotape was 14 not sufficient to warrant a person of reasonable caution 15 in concluding that Stansbury was the perpetrator. 16 (quoting Jaegly, 439 F.3d at 152). 17 the court here, but that does not end the inquiry. 18 district court noted that [t]here are several instances on 19 the videotape where the perpetrator s face appears with some 20 definition, though the perpetrator s face did not appear to 21 perfectly match Stansbury s DMV photo. 22 of the perpetrator on the tape makes Wertman s 23 identification probative and allows the other officers 11 The district court Id. We do not disagree with Id. The The visibility 1 identifications based on the tape to contribute meaningfully 2 to Wertman s probable cause to arrest Stansbury. 3 After disposing of the videotape, the court proceeded 4 to analyze the identifications made by Cirrincione and John 5 at the police barracks. 6 court rightly condemned the use of a one-photograph array to 7 confirm identity. 8 indicia of reliability spelled out in Neil v. Biggers, 409 9 U.S. 188, 198 (1972)). As an initial matter, the district Id. at *5 (decrying the absence of Showing suspects singly to persons 10 for the purpose of identification . . . has been widely 11 condemned, even when done in person. 12 U.S. 293, 302 (1967), overruled on other grounds by Griffith 13 v. Kentucky, 479 U.S. 314 (1987). 14 photograph of the suspect is not more reliable. 15 Stovall v. Denno, 388 The use of a single However, absent circumstances that raise doubts as to 16 the victim s veracity, a victim s identification is 17 typically sufficient to provide probable cause. 18 Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) 19 (holding that a store clerk s description of an incident of 20 shoplifting supported a finding of probable cause).5 5 Singer v. Under New York law an identified citizen informant is presumed to be reliable. Caldarola v. Calabrese, 298 F.3d 156, 165 (2d Cir. 2002) (citing People v. Hetrick, 80 N.Y.2d 344, 349 (1992)). We have endorsed a similar proposition. Id. 12 1 Wertman had no reason to doubt the honesty of either 2 Cirrincione or John, each of whom made statements under 3 penalty of perjury and lacked incentive to single out 4 Stansbury as the perpetrator.6 5 John s identifications were too problematic alone to provide 6 probable cause to arrest Stansbury, this flaw does not 7 render the evidence non-probative. 8 admissible at trial in order to support a finding of 9 probable cause. 7 Although Cirrincione s and [E]vidence need not be Phillips v. Allen, 668 F.3d 912, 915 (7th (citations omitted). The same rule applies to identifications of the perpetrator from photographic arrays. See, e.g., People v. Jones, 2 N.Y.3d 235, 238 (2004). 6 This Court affords greater weight when witnesses testify or swear under threat of the criminal sanction for perjury. United States v. Hernandez, 85 F.3d 1023, 1028 (2d Cir. 1996). 7 The district court, applying the factors set forth in Neil v. Biggers, 409 U.S. 188 (1972), determined that Cirrincione s and John s identifications lacked sufficient indicia of reliability to support probable cause to arrest Stansbury. See Stansbury v. Wertman, No. 09-cv-04638-RJH, 2012 WL 183849, at *56 (S.D.N.Y. Jan. 24, 2012) (discussing [1] the opportunity of [Cirrincione and John] to view the criminal at the time of the crime, [2] [Cirrincione s and John s] degree of attention, [3] the accuracy of [Cirrincione s and John s] prior description of the criminal, [4] the level of certainty demonstrated by [Cirrincione and John] at the confrontation, and [5] the length of time between the crime and the confrontation ). Although we agree with the district court that the identification procedures employed here were suggestive, Biggers concerns the admissibility of identifications at criminal trials, not whether an identification can support probable cause to arrest a suspect. Application of the Biggers framework requires the kind of hindsight that, while useful in determining whether evidence should be admitted at trial, is inappropriate when deciding whether a police officer had probable cause to arrest. See 13 1 Cir. 2012) (interpreting Illinois v. Gates, 462 U.S. 213 2 (1983)). 3 trial, [victim s] identification of [the perpetrator] may 4 properly provide a basis for probable cause to arrest him. 5 People v. Nelson, 79 A.D.2d 171, 174 (N.Y. App. Div. 4th 6 Dep t 1981) (Cardamone, Justice) (abrogated on other grounds 7 by People v. Cintron, 199 A.D.2d 526 (N.Y. App. Div. 2d 8 Dep t 1993)). 9 [A]lthough not able to be used at his [criminal] The shoplifter s Old Navy bags, which in the video 10 appear never to have been unfolded or used, properly 11 narrowed Wertman s investigation to the universe of people 12 who may have visited an Old Navy shortly before the robbery. 13 Wertman s discovery that unused bags were seen strewn on the 14 floor at a nearby store 22 minutes before the robbery, 15 around the time a middle aged black woman used Nicole Phillips v. Allen, 668 F.3d 912, 915 (7th Cir. 2012) ( Application of the Biggers framework is possible, however, only after evidence has been gathered and an adversarial hearing held. ). For the purposes of determining whether an identification can support probable cause, the basic question is whether the identification procedure was so defective that probable cause could not reasonably be based upon it. Jenkins, 478 F.3d at 93. Because there is no suggestion that Cirrincione or John was coerced into identifying the plaintiff, or that Wertman thought either witness had any motive to lie, we conclude that the identification procedures employed here - although highly improper - were not so flawed that they could not contribute to a finding of probable cause. . 14 1 Stansbury s credit card at Old Navy, was undoubtedly 2 relevant to assessing his probable cause determination. 3 This circumstantial evidence that Stansbury may have had an 4 opportunity to obtain unused Old Navy bags just prior to the 5 shoplifting incident is probative as to the likelihood that 6 she was the perpetrator. 7 When Wertman interviewed the Stansburys about their 8 presence at Old Navy, he observed that Linda Stansbury was 9 very nervous and evasive. Furthermore, Wertman noticed that 10 Nicole tried to cover for her mother during the interview. 11 A police officer s contemporaneously recorded observation 12 that a suspect was evasive when questioned may be a 13 significant factor in a probable cause determination. 14 e.g., United States v. Gagnon, 373 F.3d 230, 238 (2d Cir. 15 2004).8 16 [probable cause], including the defendant s excessive 17 nervousness . . . and evasive or contradictory answers to 18 questions. 19 App. Div. 3d Dep t 2003) (cited approvingly by People v. See, Courts consider several factors when determining People v. Kelley, 306 A.D.2d 699, 700 (N.Y. 8 In another case, how much weight to give an officer s observations in this regard might depend in part on the officer s subjective mindset, even if such a mindset does not in itself determine the existence or absence of probable cause, but Wertman s mindset was not at issue in this case. See Devenpeck v. Alford, 543 U.S. 146, 153-154 (2004). 15 1 Hall, 10 N.Y. 3d 303, 321 (2008)). Accordingly, the 2 district court erred by failing to consider this interview 3 in its probable cause analysis. Other evidence tending to make it more likely that 4 5 Stansbury was the Stop & Shop culprit included Wertman s 6 knowledge of her 1997 arrest for grand larceny in White 7 Plains and Wertman s comparison of her handbag to the 8 perpetrator s handbag as observed on the video. 9 neither piece of information individually yields a Though 10 significant step towards establishing probable cause, the 11 district court should have considered both as part of the 12 totality of circumstances. 13 the perpetrator was 5'5" tall (in light of Stansbury s 5'9" 14 stature) is part of the total mix of evidence necessary to 15 properly evaluate Wertman s decision to arrest Stansbury.9 16 B. 17 18 Similarly, John s assertion that Probable Cause Under the Totality of the Circumstances The district court analyzed the evidence seriatim, finding that no piece of evidence was sufficient in itself 9 Cirrincione claims that she identified various physical similarities between Stansbury and the perpetrator (sunken cheeks, hooded eyes, and other distinctive facial characteristics). There is no evidence that she communicated these observations to Wertman; because they were not a factor in Wertman s decisions to arrest and prosecute Stansbury, we do not consider them. See Panetta, 460 F.3d at 395. 16 1 to establish arguable probable cause. 2 183849, at *4-6. 3 pieces of evidence that it chose to consider, the district 4 court erred insofar as it did not account for the evidence 5 on the totality of the circumstances. 6 New York, 478 F.3d 76, 90 (2d Cir. 2007) (citing Brinegar v. 7 United States, 338 U.S. 160 (1949)). 8 9 Stansbury, 2012 WL Although it adequately evaluated the Jenkins v. City of The totality of the circumstances test is no mere formality; it may frequently alter the outcome of a case. 10 Those who do not take into account conditional probability 11 are prone to making mistakes in judging evidence. They may 12 think that if a particular fact does not itself prove the 13 ultimate proposition (e.g., whether the [officer had 14 probable cause]), the fact may be tossed aside and the next 15 fact may be evaluated as if the first did not exist. 16 Adahi v. Obama, 613 F.3d 1102, 1105 (D.C. Cir. 2010).10 17 significance of each [relevant] factor[] may be enhanced or 10 Al The This is precisely what the district court did in this case. See, e.g., Stansbury, 2012 WL 183849, at *4 ( the videotape was not sufficient to warrant a person of reasonable caution in concluding that Stansbury was the perpetrator ) (internal citations omitted); id. at *6 (it would be impossible for the Court to conclude that a jury would be unreasonable in concluding that Cirrincione s and John s identifications of Stansbury based on a single photo did not give Wertman probable cause ); id. n.3 ( the same logic also renders [other officers ] identification[s] insufficient to support probable cause ). 17 1 diminished by surrounding circumstances. 2 at 90. 3 exculpatory evidence alongside inculpatory evidence to 4 ensure the court has a full sense of the evidence that led 5 the officer to believe that there was probable cause to make 6 an arrest. 7 2012) (quoting Panetta, 460 F.3d at 395). A story is never a 8 single chapter, it is the experience of the entire tale; the 9 same is true of probable cause. 10 Jenkins, 478 F.3d Review for probable cause should encompass plainly Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. The district court looked to our efforts in Jenkins v. 11 City of New York to support its determination.11 12 New York Police Department ( NYPD ) detectives investigated 13 a series of robberies and a homicide committed by the main 14 perpetrator and an accomplice. 15 the first victim s stolen red Honda Civic, reportedly used 16 in all subsequent crimes, the NYPD found Blyther, the 17 perpetrator. 18 they also found and arrested Jenkins; they contended that he 19 resembled descriptions of Blyther s accomplice in that he 20 was a black male. 478 F.3d at 81. In Jenkins, By tracing When the police raided Blyther s apartment, Id. at 82-84, 89. 11 Three lineups were It comes as no surprise that the parties agree that Jenkins provides the template to resolve the matter; they, however, reach differing results. 18 1 conducted for one witness and two victims, all of whom 2 identified Jenkins as Blyther s accomplice in his crime 3 spree. 4 not permitted to leave without fingering one of the men. 5 Id. at 83. 6 accomplice not Jenkins. 7 facts - including Jenkins s behavior prior to arrest - were 8 subject to genuine dispute. 9 Id. at 82. In one lineup, however, the witness was Eight months later, Blyther named his actual Id. at 82-83. Some material This Court held that the officers developed probable 10 cause only after the second and third identifications 11 (which, though flawed, were procedurally superior to the 12 first lineup). 13 available to the police at that time included: (1) Jenkins 14 presence in Blyther s apartment days after the crimes; (2) 15 Jenkins race and gender, which corresponded with the 16 accomplice s race and gender; (3) a witness s coerced and 17 therefore meaningless identification of Jenkins; and (4) two 18 victims identifications of Jenkins in subsequent less than 19 perfect lineups. 20 pieces of evidence were insufficient, all four combined 21 established probable cause. Id. at 93. The totality of the evidence Id. at 90-93. Although the first three Id. at 93. 22 19 1 The totality of evidence in this case exceeds the 2 evidence the NYPD possessed in Jenkins following the third 3 lineup. 4 array in this case were less probative than even the two 5 imperfect lineups in Jenkins, the evidence implicated 6 Stansbury before any flawed identification. 7 identifications, Wertman was aware that, 22 minutes before 8 the shoplifting, a middle-aged black woman had used Nicole 9 Stansbury s credit card at a nearby Old Navy and that new Although the identifications from the photographic Prior to the 10 shopping bags were seen strewn on the floor near the exit of 11 the store. 12 evening, Wertman observed that Stansbury was nervous and 13 evasive. 14 similar crime. 15 When questioned about her whereabouts that Stansbury, moreover, had a previous arrest for a On top of the circumstantial evidence against 16 Stansbury, five individuals (including three trained 17 officers and two innocent victims with no alleged motive to 18 lie, one of whom had training in facial identification) 19 could not distinguish her from the perpetrator in admittedly 20 flawed photographic arrays. 21 affidavits expressing no uncertainty that Stansbury was the 22 perpetrator. The two victims submitted sworn The fact that the victims did not offer timely 20 1 detailed descriptions of the perpetrator means that probable 2 cause could not be based on Stansbury s matching these 3 descriptions; it does not mean that the victims could not 4 meaningfully identify Stansbury. 5 misstated the factual record in asserting that the most the 6 Court can say is undisputed is that Cirrincione and John 7 told Wertman that the shoplifter was a black female who was 8 wearing a maroon windbreaker and blue jeans. 9 2012 WL 183849, at *7. The district court Stansbury, Such a description might, as the 10 lower court suggested, be comparable to Jenkins; however, 11 there is significantly more evidence here. 12 John s claim that the perpetrator was 5'5" tall is 13 evidence indicating that Stansbury could be innocent, but 14 this evidence was outweighed by the mountain of evidence to 15 the contrary. 16 (2d Cir. 2003). 17 make an arrest based on Boyd s purchase of a stolen car, 18 even though the car did not look stolen and Boyd may not 19 have known it was stolen. 20 there was not probable cause to support a prosecution). 21 Boyd reaffirms that some exculpatory evidence does not make 22 an arrest illegal when the totality of evidence still Boyd v. City of New York, 336 F.3d 72, 74, 77 In Boyd, the police had probable cause to Id. (asserting, however, that 21 1 establishes probable cause to believe that the suspect 2 committed the crime. 3 exculpatory evidence is a guess from a store employee as to 4 the perpetrator s height that was off by four inches. 5 deficiency, if it was one, was overcome by other evidence, 6 including a positive, sworn identification by the same 7 employee. 8 9 Such is the case here, where the only This Because there was an identifiable crime and a substantial volume of contemporaneously-recorded, 10 uncontroverted circumstantial evidence that supported the 11 conclusion that Stansbury was the perpetrator, Wertman had 12 probable cause to arrest Stansbury. 13 could have held that Wertman did not have probable cause to 14 believe that Stansbury had committed the larceny at the Stop 15 & Shop.12 No reasonable juror 16 12 While Wertman did have probable cause to arrest Stansbury, this does not mean that he conducted a perfect investigation. Although a better procedure may have been for the officer[] to investigate [Stansbury s] version of events more completely, the arresting officer does not have to prove [a suspect s] version wrong before arresting [her]. Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001). Perhaps Wertman should have been more thorough, but he did not misrepresent[] the evidence to the prosecutors and no evidence suggests that he broached protocol in any way other than the use of an inadequate photographic array. Cf. Manganiello v. City of New York, 612 F.3d 149, 165 (2d Cir. 2010). This alone does not mitigate the probable cause that his investigation provided. 22 1 III. Malicious Prosecution Because lack of probable cause is an element of a 2 3 malicious prosecution claim, the existence of probable 4 cause is a complete defense to a claim of malicious 5 prosecution. 6 149, 161-62 (2d Cir. 2010) (alteration omitted) (quoting 7 Savino, 331 F.3d at 72). 8 established by a grand jury indictment may be rebutted ... 9 by evidence that the indictment was procured by fraud, Manganiello v. City of New York, 612 F.3d The presumption of probable cause 10 perjury, the suppression of evidence or other police conduct 11 undertaken in bad faith. 12 citations, and quotation marks omitted). 13 probable cause has been established, it is impossible for 14 plaintiff to prevail on a malicious prosecution claim as a 15 matter of law. Id. at 162 (alterations, However, once See Savino, 331 F.3d at 72. The probable cause standard in the malicious 16 17 prosecution context is slightly higher than the standard for 18 false arrest cases. 19 in the context of malicious prosecution, has also been 20 described as such facts and circumstances as would lead a 21 reasonably prudent person to believe the plaintiff guilty. 22 Id. Boyd, 336 F.3d at 76. Probable cause, For the reasons discussed above, the uncontroverted 23 1 evidence adduced in Wertman s investigation suffices to meet 2 that standard. 3 As a matter of law, the uncontroverted facts in this 4 case created probable cause to initiate Stansbury s 5 prosecution for petit larceny; Wertman was therefore 6 entitled to judgment as a matter of law. 7 8 Conclusion 9 Where the record taken as a whole could not lead a 10 rational trier of fact to find for the nonmoving party, 11 there is no genuine issue for trial. 12 380 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio 13 Corp., 475 U.S. 574, 586-87 (1986)). 14 allegations, the documented record establishes 15 uncontroverted facts that, taken together, provided probable 16 cause for the arrest and prosecution of Linda Stansbury. 17 Officer Wertman is therefore entitled to judgment as a 18 matter of law. 19 Scott, 550 U.S. at Ignoring frivolous For the foregoing reasons, the opinion and order of the 20 district court is REVERSED, and the case is REMANDED with 21 instruction for the district court to grant Wertman s motion 22 for summary judgment. 24
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