# United Stat es Court of Appeals For the First C ircuit

No. 04-1016 CASILDA ACOSTA, ETC., ET AL., Plaintiffs, Appellants,

v. AMES DEPARTMENT STORES, INC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Ernest C. Torres, U.S. District Judge ]

Before Selya, Circuit Judge , Coffin and Cyr, Senior Circuit Judges . Bruce P. Gladstein on brief for appellants. Marc DeSisto , Kathleen M. Daniels and DeSisto Law on brief for appellees.

September 22, 20041 Casilda Acosta's sons, Kenny and Kevin, are also parties.

Their claims are largely derivative, however, and fo r ease in reference we treat Casilda as if she were the sole plain tiff and appellant. Our opinion is, of course, binding on all three. -2- SELYA, Circuit Judge . Plaintiff-appellant Casilda Acosta invites us to vacate a summary judgment order terminating her suit for false arrest under, inter alia, 42 U.S.C. § 1983. 1 Discerning

no error in the district court's disposition of the matter, we decline Acosta's invitation.

The facts are uncomplicated. Glenn Powers worke d as a st ore detective for Ames Department Stores, Inc. (Ames). O n October 18, 1999, he called the Middleto wn, Rh ode Island, police depart men t to report a shoplifting at a local Ames emporium. Officer Kelly Mitche ll res ponded to the call and Powers informed her that the appellant, her sons, and a group of other persons had entered the shop that evening. He watched the appellant take two jackets, emblazoned with the logo of the New England Patriots, from

a rack andoutfit her sons with them. He then surveilled the trio

as they walked around the store and proceeded through the checkout line without making any attempt to pay for the jackets.

Powers stopped the suspected shoplifters as soon as they left the premises. When he confronted them with the alleged larceny, one of the boys admitted that he had donned the jacket in the store.-3- Once she had interviewedPowers, Officer Mitchell talked with the appellant. She found communication difficult because of

a langu age barrier; Mitchell spoke no Spanish and the appellant lackedfluency in English. Nonetheless, Mitchell was able to glean the essence of the appellant's claim: that she had purchased the jackets on an earlier shopping trip. To bolst er th at claim, the appe llant gave Mitchell a layaway receipt dated October 5, 1999. This receipt indicated that ten items had been rung up (including two labeled "PATRIOTS OUT" at a sale price of $2 2.41 each); that $49.94 had been paid toward a previous balance; and that the layaway was complete. The receipt did not indicate what "PATRIOTS OUT" meant.

Officer Mitchell then insp ect ed the jackets. She observeda wet spot on one of th em, consistent with what might appear if soda or juice had just been spilled on it. She al s o founda used tissue in a jacket pocket. At that point, Mitchell took the appellant into custody and charged her with shoplifting. Although at least one other officer had by then respon ded t o the scene, the police did not converse with any other Ames personnel before effectuating the arrest. B y the same token, they did not interview other customers (not even those persons who had originally accompanied the appellant to the store).

For reasons that need not concern us, the criminal charges were subsequently dropped. The incident, however, was not2 Ames andPowers made only cameo appearances — Ames went into bankruptcy and Powers was never served — so we eschew any further reference to them, insteadtreating the municipal defendants as if they were the sole targets of the suit. See , e.g. , Sunview Condo. Ass'n v. Flexel Int'l, Ltd. , 116 F.3d 962, 963 n.1 (1st Cir. 1997) (taking a similar approach in analogous circumstances). -4- forgotten. The appellant brought suit in a Rhode Island state court alleging seventeen different causes of action against a myriadof defendants. The complaint, as amended, named Ames, Powers, the Town of Middletown, the Middletown police department, the town's finance director, and several police officers (among them, Officer Mitchell) as defendants. 2 The municipal defendants removedthe case to the United States District Court for the District of Rhode Island. See 28 U.S.C. §§ 1331, 1441(b).

In due course, the municipal defendants moved for summary judgment. See Fed. R. Civ. P. 56. The district court found probable cause for the arrest and, accordingly, granted the motion. This appeal ensued.

The summary ju dgme nt device enables a court "to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Wynne v. Tufts Univ. Sch. of Med. , 976 F.2d 791, 794 (1st Cir. 1992). That device functions successfully when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to judgment-5-

as a matter of law." Fed. R. Civ. P. 56(c). Faced with a properly documentedsummary jud gmen t motion, the nonmovant can thwart the motion only by showing through materials of evidentiary quality that a genuine dispute exists about some material fact. Anderson

v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986); Medina-Munoz

v. R.J. Reynolds Tobacco Co. , 896 F.2d5, 8 (1st Cir. 1990). This evidence "must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial." Mack v. Great Atl. & Pac. Tea Co. , 871 F.2d 179, 181 (1st Cir. 1989).

In assessing such a proffer, an inquirin g co urt must resolve all evidentiary conflicts and draw all reasonable inferences in the nonmovant's favor. Id. If the proffer, viewed through this prism, "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson , 477 U.S. at 249-50 (internal citations omitted). In an ensuing appeal, we affordplenary review, Mesnickv. Gen. Elec. Co. , 950 F.2d 816, 822 (1st Cir. 1991); Garside v. Osco Drug, Inc. , 895 F.2d 46, 48 (1st Cir. 1990), utilizing the same criteria as the trial court, Perez

v. Volvo Car Corp. , 247 F.3d 303, 310 (1st Cir. 2001); Werme v. Merrill , 84 F.3d 479, 482 (1st Cir. 1996).

We turn now from the general to the particular. Before us, the appellant mounts a four-pronged attack on the district

c ourt's probable cause determination. She contends (i) th at th e-6-

exist ence vel non of probable cause is always for the jury (and, thus, not susceptible to summary judgment); (ii) that genuine issues of material fact preclude judicial resolution of the probable cause question here; (iii) that even absent such a dispute, the facts of record do not support the lower court's probable cause dete rmi nation; and (iv) that, in all events, the determination was infirm because further investigation would have dispelledthe basis for it. We discuss th ese contentions sequentially.

With respect to her first a sseveration, the appellant relies upon our decision in B.C.R. Transport Co. v. Fontaine , 727 F.2d7 (1st Cir. 1984). That reliance is mislaid. In B.C.R. Trans p ort , the defendant argued that probable cause necessarily existedbecause a warrant, bas ed upo n information supplied by an allegedvictim, had been obtained. Id. at 9-10. We rejected that broad pro position, describing the probable cause inquiry as situation-specific. See id. at 10 (explaining that "whether or not probable cause exists . . . invariably depends on the particular facts and circumstances of [each] case"). We went on to note that the alleged victim was disoriented and ranting, and, accordingly, the arresting officers needed to engage in further inquiry before relying on that account to find probable cause. See id. at 10-11.

The appellant tries to ride this horse well past the boundarythat we staked out in B.C.R. Transport . Although we ruled-7-

there th at the issue of probable cause was for the jury, tha t ruling was not, as the appellant suggests, intended to have uni versal applicability. The outcome in B.C.R. Transpo r t representedthe exception, not the rule. More relevant here is our recent observation that "it is point les s to submit . . . [a] probable cause question[] to the jury at all unless the facts are disputed." Bolton v. Taylor , 367 F.3d 5, 8 n.2 (1st Cir. 2004);

see also Ornelas v. United States , 517 U.S. 690, 696 (1996) (explaining that when the relevant facts leading to the officer's involvement are established, probable cause is a "mixed question of law and fact" suitable for determination by the court); Bell v. Irwin , 321 F.3d 637, 640 (7th Cir.) (holding that the existence of probable cause is ordinarily for the court, not for the jury), cert. denied , 124 S. Ct. 84 (2003).

In the case at hand, the material facts — what the police knew at th e mom ent of the arrest, the source of their knowledge, and the leads that they pursued or eschewed — are not in dispute. When that is so, the existence vel non of probable cause ordinarily is amenable to summary judgment. See , e.g. , Roche v. John Hancock Mut. Life Ins. Co. , 81 F.3d249, 254-56 (1st Cir. 1996) (affirming the entry of summary judgment in such a situation). The question, then, is whether brevis disposition was appropriate on the facts of this case.-8- The appellant's second argument begins the dialogue on that question. She hangs her hat primarily on the layaway receipt. This need not detain us. The dispute over the meaning of the la yaway receipt is, at bottom, merely whether the receipt fairly indicatedto a reasonable officer that the appellant purchased two Patriots j ack ets on October 5. Even were we to resolve this question in the appellant's favor, the fact that she bought two jackets on October 5 would not change the outcome of the probable cause inquiry.

There are at least two conflicting inferences that could be drawn from such a fact. One possibility is that the appellant bought the coats in question and did not steal them. Another is that she bought two other coats on October 5, and was using the receipt as a cover for a theft on October 18. To resolve the issue of probable cause, it does not matter which inference is correct. It is sufficient that a reasonable officer in possession of this information might nonetheless find it likely that the store detective's eyewitness account was true and that the appellant had committed a crime. See United States v. Figueroa , 818 F.2d 1020, 1023-24 (1st Cir. 1987). In light of Powers's insistence that he personallywitnessed the theft, the excu lpat ory value of the receipt is simply insufficient for us to con clude that Mitchell could not reasonably have found probable cause.-9- The appellant's third line of attack directly challenges the adequacy of the evidence on which the district court's probable

cause determination was based. That challenge requires us to limn the analytic framework for probable cause determinations and then to apply that framework.

When there is probable cause for a n arrest, the Fourth Amendment's prohibition against unreasonable searches and seizures is not offended. Atwater v. Lago Vista , 532 U.S. 318, 354 (2001); Roche , 81 F.3d at 254. Probable cause for an arrest exists when the arresting officer, acting upon apparently trustworthy information, reasonably concludes that a crime has been (or is about to be) committedandthat the putative arrestee likely is one of the perpetrators. See Beck v. Ohio , 379 U.S. 89, 91 (1964); Figueroa , 818 F.2d at 1023. Courts use an objective standard when determining the existence of probable cause. Valente v. Wallace , 332 F.3d 30, 32 (1st Cir. 2003); Roche , 81 F.3d at 254. The focus is not on certitude, but, rather, on the likelihood of criminal activity. See Illinois v. Gates , 462 U.S. 213, 235 (1983); Spinelli v. United States , 393 U.S. 410, 419 (1969); United States

v. Winchenbach , 197 F.3d 548, 555 (1st Cir. 1999). Finally, courts must apply these principles fluidly to the totality of the extant circumstances. Gates , 462 U.S. at 232 & n.7; Winchenbach , 197 F.3d at 555.-10- Here, the existence of probable cause depends, in the first instance, upon the cogency of the account given by the store detective (Powers). Taken at face value, Powers's tale certainly gave Officer Mitchell reason to believe that a crime had been committed and that the appellant had committed it. The appellant nonetheles s argu es that Mitchell should have deemed Powers's statements unreliable (or, at least, suspect) because she hadnever met him before and, thus, could not accura tel y assess his credibility. That sets the bar too high.

Victims' complaints are a prime source of investigatory information for police officers. In the absence of circumstances that would raise a reasonably prudent officer's antennae, there is no requirement that the officer corroborate every aspect of every complaint with extrinsic information. The uncorroborated testimony of a victim or other percipient witness, standing alone, ordinarily

can support a finding of p roba ble cause. See , e.g. , Forest v. Pawtucket Police Dep't , ___ F.3d ___, ___ (1st Cir. 2004) [No. 03- 2652, slip op. at 10] (stating that information furnished by a victim is generally considered sufficiently reliable to support a findin g o f probable cause); B.C.R. Transport , 727 F.2d at 10 (same). Although the victim here is a corporation commu nicati ng through its agent, the agent held himself out to be an eyewitness to the pilferage and rendered a coherent, facial ly p lausible account. Consequently, we see no reason to treat Ames's complaint-11-

of a crime, related through Powers, differently from any other complaint by a victim.

This conclusion is reinforced by Powers's status as a store detective. At least one respected court has gone so far as to recognize that, in the retail context, private security officers

are inherently reliable. See Gramemos v. Jewel Cos. , 797 F.2d 432, 439 (7th Cir. 1986) (noting that several disincentives stemming fromfalse crime reports collectively provide reason to infer that store detectives are reliable). While we hesitate to indulge in sweeping generalizations, we t hink that in this case Officer Mitchell had every reason to believe that the store's security officer was being truthful.

In an effort to undermine the credibility of Powers's statements, the appellant points to three facts: the layaway receipt, the absence of any evidence of empty coat hangers or price tags for the jackets, and the "used" appearanc e of one of the jackets. In our estimation, none of these facts is telling. As notedabove, the layaway receipt is at best equivocal. As for the hangers and price tags, Mitchell never thought to ask for them — andit is therefore speculative whether or not they could have been found. And, finally, the appearance of the spotted jacket actually maycut the other way: the fact that the spots were wet

con tra dicts the appellant's suggestion that they were old. The used kleenex in the pocket tells us nothing.-12- To ci nc h matters, the totality of the circumstances includes far more than these isolated tidbits. Officer Mitchell spoke first-hand with the co mplain ing witness, who plausibly claimedto have observed the entire incident. Mitchell had no

reason to doubt that claim. She then w as told that one of the jacket-wearers hadadmitted to having donned the jacket inside the stor e. M itchell proceeded to speak to the appellant and got the gist of her story: that she previously had purchased the merchandise. But the layaway receipt that she proff ere d was ambiguous and gave the officer no reason to question Powers's veracity: he was a percipient witness whose job responsibilities involvedthe very sort of observations that he was undertaking. Hence, there was no re ason for Mitchell not to rely on his eyewitness version of events. When an arresting officer has the benefit of an apparently credible eyewitness account, the amount of arguably e xcul patory evidence must be substantial before further investigation can be required as a constitutional matter. The evidence here, if exculpatory at all, was far from substantial.

The test for probable cause "does not require the officers' conclusion to be ironclad, or even highly probable. Their conclusion tha t probable cause exists need only be reasonable." Winchenbach , 197 F.3d at 555-56. In this case, the officer passed that test with flying colors.-13- The appe l lant's last argument depends on a three-part algorithm. She asserts that even if the investigation that Officer Mitchell actually conducted created an aura of probable cause, the district court's determination cannot stand because (i) the police hada responsibility to continue investigating the matter; (ii) they failed to do so; and (iii) had they not foregone this duty, they woul d have dispelled the aura and learned that there was no probable cause for an arrest. In particular, the appellant posits that the police should have interviewed the other Spanish-speaking persons who had accompanied her to the store, spoken with the store

mana ger, p robed further into the significance (if any) of the layaway receipt, and hunted for the hangers and price tags.

Probable cause determinations are, virtually by definition, preliminary and tentative. See , e.g. , Barber v. Page , 390 U.S. 719, 725 (1968). Not surprisingly, then, the Supreme Court has flatlyrejected the idea that the police have a standing obligation to investigate potential defenses before finding probable cause. See Baker v. McCollan , 443 U.S. 137, 145-46 (1979). Following this lead, we too have disclaimed any unflagging duty on the part of law enforcement officers to investigate fully before making a probable cause determination. See , e.g. , Franco-de Jerez v. Burgos , 876 F.2d 1038, 1042 (1st Cir. 1989). While we have recognized that such a duty may arise in highly idiosyncratic circumstances, see , e.g. , B.C.R. Transport , 727 F.2d at 10-11, we-14-

have made it clear that an officer normally may terminate her investigation when she accumulates facts that demonstrate sufficient probable cause. See , e.g. , Forest , ___ F.3d at ___ [slip op. at 12]; Palhava de Varella-Cidv. Boston Five Cents Savings Bank , 787 F.2d 676, 680-81 (1st Cir. 1986). The case law in other circuits is to the same effect. See , e.g. , Hodgkins v. Peterson , 355 F.3d 1048, 1061 (7th Cir. 2004); Brodnicki v. City of Omaha , 75 F.3d 1261, 1264 (8th Cir. 1996).

The rule, then, applicable in the wide mine-run of cases, is that once a law enforcement officer unearths sufficient facts to establish probable cause, she has no constitutional duty either to explore the possibility that exculpatory evidence may exist or to condu ct any further investigation in the hope of finding such evidence. Because this case is well within the mine-run, we reject the appellant's asseveration that the absence of a m ore co mplete investigation somehow undercuts the district court's acknowledgment of probable cause.

This disposes of the appellant's four-pronged attack on the lower court's probable ca use determination. Looking at the totality of the circumstances know n to the police at the time of the instant arrest, we find no fault with the district court's conclusion that probable cause existed.

Withal, our odyssey must continue. The court below went

on to rule that the ab sen ce of probable cause doomed all the3 Two of t hese are "deliberate indifference" counts based on

alleged failures properly to train police officers. -15- appellant's claims. The appellant assigns error to the breadth of this ukase.

This assignment of error requires us first to parse the amended complaint. Eight of the counts are directed only at Ames andPowers, and, thus, need not concern us. See supra note 2. The remaining nine counts allege the following causes of action against some or all of the municipal defendants: four counts based on 42 U.S.C. § 1983, 3 one count based on false arrest, one count based on general negligence, two counts c harging inflicting of emotional distress, and one count basedon vicarious liability. The two main section 1983 claims were premised on alleged Fourth Amendment violations, andso the district court's disposition of those counts

was clearly correct. Given probable cause, there was no constitutional violation — and without the deprivation of a constitutional right, those claims cannot proceed. See Roche , 81 F.3dat 254. The false arrest count also fails because a necessary element of that claim is an illegal arrest. See Mann v. Cannon , 731 F.2d 54, 62 (1st Cir. 1984) (construing Rhode Island law). In this case, the existence of probable cause rendered the arrest legal. By like token, in the absence of a fal se or unconstitutional arrest, the two other section 1983 counts — both of which are failure-to-train counts, see supra note 3 —-16-

necessarilyfounder. See Evans v. Avery , 100 F.3d 1033, 1040 (1st Cir. 1996) (holding that a municipality cannot be liab le for failure to train under § 1983 absent an underlying constitutional violation by one of its police officers).

That leaves only a motley of state-law tort counts. A general negligence count requires a plaintiff to show, at a bare minimum, a legally cognizable duty and a breach of that duty. See Mills v. State Sales, Inc. , 824 A.2d 461, 467 (R.I. 2003); see also Welsh Mfg., Div. of Textron, Inc. v. Pinkerton's, Inc. , 474 A.2d 436, 440-41 (R.I. 1984). Because the police acted reasonably in mak ing their probable cause determination and had no duty to investigate further before arresting the appellant, see text supra , the appellant has failed to establish the essential elements of her general negligence claim.

The emotional distress counts fare no better. There has been no demonstration of the "extreme and outrageous conduct"

necessa ry to prevail on a claim for intentional infliction of emotional distress. Jalowyv. Friendly Home, Inc. , 818 A.2d 698, 707 (R. I. 2003). There has been no showing of the physica l symptomatology necessary to support a claim of negligent infliction of emotional distress. See Reillyv. United States , 547 A.2d894, 899 (R.I. 1988). And as the substantive state-law counts topple,

so too does the count alleging vicarious liability. See Bolandv. Town of Tiverton , 670 A.2d 1245, 1248 (R.I. 1996).-17- We need go no further. While we do not minimize the unfortunate nature of the appellant's experience, there is no principledway on these facts to hold the municipal defendants liable in damages. Consequently , t he district court's entry of summary judgment merits our approbation.

Affirmed .