PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________

No. 15

- 3393

__________
DAVID ANDREWS,

Appellant

v.

OFFICER ROBERT SC UI LLI

__________ On Appeal from the United States District Court for the Wes tern District of Pennsylvania

(District Court Civil No. 2

- 13

- cv

- 01657 ) District Judge: Honorable Cathy Bissoon

Argued October 25, 2016

BEFORE: VANASKIE

, KRAUSE

, and NYGAARD

, Circuit Judges

(Filed : April 10, 2017 )2 Timothy P. O'Brien, Esq. [Argued] 1705 Alleghe ny Building 429 Forbes Building Pittsburgh, PA 15219

Counsel for Appellant

Carol A. VanderWoude, Esq. [A rgued] Marshall Dennehey Warner Coleman & Goggin 18th Floor

, Suite 2300 2000 Market Street Philadelphia, PA 19103

Counsel for Appellee

__________

OPINION OF THE COURT

__________
NYGAARD, Circuit Judge

.

I.

David Andrews was found not guilty of the crime s for which he was charged

. H e brought suit against Officer Robert Sciulli for false arrest and malicious prosecution. 1 On

1 We note that Officer Sciulli’s name is spelled “Scuilli” in various places throu gh out the record, in our Court’s caption

, and in that of the District Court . Nonetheless, it is apparent3 appeal h e contends that the District Court erred by granting

summa ry judgment

, on the basis of qualified immunity

, in favor of Sciulli . We agree . We will reverse the District Court’s judgment and remand the cause for trial.

II.

On Nove mber 25, 2012 in Stowe Township , Pa, Brooke Wagner was walking on a sidewalk from a friend’s house to her home

. She w as fifteen years old

. A man in a car approached her and asked if she wanted a ride. She told him “n o.” He demanded that she get in the car. Wagner again refused and told him that she would report him to the police. He sped away

. She used her mobile phone to call her mo ther

, who told her to go home

. The mother then called the police

.

Both Officer Sciulli and Offi c er Antonio Reymundo Ruiz of the Stowe Township Police Department arrived at Wagner’s home within minutes of the mother ’ s report

. Upon questioning by Ruiz , Wagner described the vehicle as a red

, four

- door sedan

. She said that t he car had a Pennsylvania license plate bearing the letters ACG. She descr ibed the driver as a white male with dark hair, around 35 years old. Ruiz g ave this information to Sciulli , who the n went to the locatio n of the incident

. Sciulli prepared a n Incident Investigation Report that same day , recording th e details Wagner had provided.

from his police reports that the correct spelling of Appellee’s name is “Sciulli

, ” Appx 130, 145

, and we will use that spelling in our opinion.4 The next day, the mother was driving Wagner home from a grocery store when Wagner saw a red car . She tol d her mother that it was the car that had stopped next to her the day before. She noted that the license number was JDG 48 17

. T hey followed the car until it stopped in a parking lot. Her mother drove into the lot and parked . Wagner observed the driver g et out and walk into a building

. She believed he was the man that tried to lure her into the car on the day before.

Wagner’s mother then dr ove her directly to the police station . They met with Sciulli and Officer Gruber

. 2 Wagner reported what she obse rved: the red car, the full licens e number, and the driver . She also stated her conclusion that this was the car and man she encountered the previous day. The officers check ed the license number

, JDG 48 17 , in the J NET database and identified the car as b elonging to David Andrews . They obtain ed Andrew s’ license photo and created a photo array with images of Andrews and seven other men

. 3 Sciulli presented the lineup to Wagner and instructed her to circle the picture of anyone she recognized. Wa gner circl ed the image of Andrews

. After Wagner and her mother left the station, Sciulli went to the parking lot they said was the location of Andrews’

2 The record does not provide Officer Gruber’s full name.

3 There is a discrepancy on whether Gruber, or both Gruber and Sciulli prepared the photo lineup. We do not regard this as material to the matter, and merely note the dispute.5 car and he looked at the vehicle

. 4 Andrews’ automobile was not a four

- door sedan, but a red

, three

- door coupe. 5

Sciulli drafted an affidavit of probable cause to arrest Andrews . The affid avit, dated November 28, 2012, stated :

Officers were notified on 11/25/12 at approximately 1112 hours, of a possible child luring

4 We discuss the sequence of Sciulli ’s observation of the car and his writing the probable cause affidavit in greater detail later in the opinion. See infra p p 11

- 13

.

5 The District Court refers to Andrews’ car as a “three

- door hatchback.” Andrews v. Sciulli , No. CIV.A. 13

- 1357, 2015 WL 5732101, at *4 (W.D. Pa. Sept. 30, 2015). However , the record shows that Andrews’ car was a 2001 Saturn SC. Appx. 240. Andrews described this car as a coupe style (as opposed to a sedan) with one door on the passenger side. On, the driver’s si de, there is a full door and a small rear

- hinged door. The small door aided access to the backseat. There is no mention of a hatchback door or lid in the rear of the car anywhere in the record. Sciulli did not raise this detail at the District Court and admitted in deposition that he knew the car was not a four

- door sedan, as Wagner described. Therefore, the District Court’s seeming error in characterizing the car as a “hatchback” is of no real consequence. Nonetheless, we will refer to Andrews’ car as a “three

- door coupe” to distinguish it from the “four

- door sedan” that Wagner described.6 incident. I, officer Sciulli , and officer Rui z were dispatched to 1309 Island Avenue to meet the victim. At this time, officers spoke with the victim. The female juvenile ’ s information was obtained and is on record and said juvenile and parent will be present at all court hearings.

The victim (fe male juvenile age 15) stated that while walking home from a friend ’ s house, a red vehicle pulled up next to her while walking on the sidewalk and asked her (juvenile age 15) if she wanted a ride. The victim stated “NO”. The defendant then said “COME ON, JUST GET IN”. The victim then said “NO, I ’ M FINE. Now I am going to report you”. The victim then stated that the vehicle sped away.

The victim then described this male as a middle aged white male with dark hair with streaks of gray. Victim described t he vehicle as a red 4 door sedan.

On 11/26/12, the victim spotted this same vehicle described above, driving on Island Avenue,7 while riding with her mother. She identified the plate as JDG4817, PA tag. They followed the vehicle to Axion, and victim agai n positively identified the male driver as the suspect she encountered the previous day.

The victim and her mother came to the station to give officers this information. Officers ran the PA plate, JDG4817, and found it to be registered to David Gene Andr ews, out of Beaver Falls, PA. Based on this information, officers created a line up using similar identifiers as Andrews.

The victim was shown a line up, created by myself and officer Gruber, generated by descriptors through J

- NET[sic]. The victim

was a sked to look at the pictures and to see if there was anyone of the pictures that she recognized as the driver of the car. She was advised that he might or might not be in the pictures. The victim looked at the pictures and almost immediately picked out t he picture of defendant. The defendant was identified through JNET Pa. drivers [sic] license as8 David Gene Andrews, DOB [REDACTED].

Your affiant respectfully requests that a warrant be issued for David Gene Andrews based on the facts enumerated above.

A pp x

. 245

. 6

The magisterial district ju dge reviewed the affidavit and issued the arrest warrant o n November 28, 2012 . That same day, police arrested Andrews and charged him with luring a child into a motor vehicle, stalking, corrup tion of a minor, and har assment

. In a bench trial, he was acquitted of all charges in June 2013 . Andrews filed this lawsuit on November 20, 2013

. The District Court granted Sciulli ’s motion for summary judgment on September 30, 2015. This appeal followed.

III.

A.

6 The affidavit refers to “Axion. ” T his l ocation is referenced as “Axiom ” in other places in the record. See e.g. Appx. 150. The record does not ground a conclus ion on the correct spelling, so we merely note the difference and leave the affidavit as is.9 We review de novo the District Court’s grant of summary judgment. Estate of Smith v. Marasco , 318 F.3d 497, 505 (3d Cir. 2003)

. 7 Summary judgment is appropriate whe n there is no genuine issue of materia l fact and the moving party is entitled to judgment as a matte r of law. Fed R. Civ. P. 56 (a)

. When w e review the District Court’s grant of summary judgment

, we will reverse only in those instances when we conclude that material facts are in dispute, or when

we determine that the undisputed facts

— viewed in a light

m ost fa vorable to the non

- moving party

— could objectively support a jury’s verdict in favor of the non

- moving party. Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995)

.

Andrews raises claims of false arrest and malicious prosecution again st Sciulli

. To assess claims of false arrest, the court must determine whether “the arresting officers had probable cause to believe the person arrested had committed the offense.” Dowling v. City of Philadelphia , 855 F.2d 136, 141 (3d Cir. 1988). Malic ious prosecution requires evidence that :

(1) the defendant[] initiated a

criminal proceeding; (2) the criminal proceeding ended in the plaintiff ’ s favor; (3) the proceeding was initiated without probable cause; (4) the defendant[] acted maliciously or for a purpose other than bringing

7 We have jurisdiction pursuant to 28 U.S.C. §1291.10 the plaintiff to justice; and (5) the plaintiff suffered a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.

DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir.2005 )

.

However, Sciulli contended at summary judgment that he has qu alified immunity from this lawsuit because probable cause grounded the arrest and prosecution

. “‘ [G] overnment officials performing discretionary functions, generally are shielded from liabi lity for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” ’ Orsatti

, 71 F.3d at 483 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) )

. 8 S ince t he District

8 ‘ “A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer ’ s conduct violated a constitutional right? This must be the initial inquiry. If no constitutional right would have been violated were the allegati ons established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties ’ submissions, the next, sequential step is to ask whether the right was clea rly established. ’ ” Wright v. City of Philadelphia , 409 F.3d 595, 600 (3d Cir. 2005) (quoting Saucier v. Katz , 533 U.S. 194 , 201 (2001) .).11 Court decided that no constitutional violation occurred, we examine this first.

B.

The District Court correctly ascertained that, since false arrest and malicious prosecution hinge on probable

cause, the constitut ional violation questio n in this case turns

on whether “‘a reasonable officer could have believed that probable cause existed ’ to arrest” the plaintiff at that time

. Blaylock v. City of Philadelphia , 504 F.3d 405, 411 (3d Cir. 2007) (quoting Hunter v. Bryant, 502 U.S. 224, 228

- 29 (1991)). Moreover, b ecause Sciulli arrested Andrews on a

va lid warrant

, the District Court properly focused its probable cause analysis on whether Sciulli ‘ “knowingly and deliberately, or with a reckless disregard for the truth, made false statements o r omissions that create[d] a falsehood in applying for a warrant. ’ ” Sherwood v. Mulvihil l , 113 F.3d 39 6 , 399 (3d Cir. 1997))

. Therefore, w e must concentrate on two elements: first, whether “ the officer, with at least a reckless disregard for the truth, ‘made false statements or omissions that create[d] a falsehood in applying for a warrant, ’ and second, whether those assertions or omissions were ‘material, or necessary, to the finding of probable cause. [ Wilson v. Russo , 212 F.3d 780, 786

- 87 (3d Cir. 20 00)] (quoting Sherwood , 113 F.3d at 399 ).’ ” Dempsey v. Bucknell Univ ., 834 F.3d 457, 468

– 69 (3d Cir. 2016). However, a s we recently ackn owledged, a certain tension exist s when probable cause is at issue in a motion for summary judgment

. Dempsey, 834 F.3 d at 468. This is12 particularly so for analyses that center upon misrepresentations and omissions in the affidavit of probable

cause

. A lthough a finding of probable cause generally can be based on an officer’s credibility determinations and independent as sessments of conflicting evidence, “it is axiomatic that at the summar y judgment stage, we view the fa cts in the light most favorable to the nonmoving party.” Dempsey, 834 F.3d at 468

. As a result :

[We cannot] exclude from the probable cause analysis

u nfavorable facts an officer otherwise would have been able to consider. Instead, we view all such facts and assess whether any reasonable jury could conclude that those facts, considered in their totality in the light most favorable to the nonmovin g party
, did not demonstrate a “fair probability” that a crime occurred.

Id. For these reasons we r ely on our general rule that an assertion “is made with reckless disregard when ‘viewing all the evidence, the affiant must have entertained serious doubts
as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported. ’ ” Wilson

, 212 F.3d at 788 (quoting United States v. Clapp, 46 F.3d 795, 801 n. 6 (8th Cir. 1995) ). Misleading assertions can relate to even “minor de tails,” and do not need a separate determ ination of relevance. T he focus in these instances is upon evidence demonstrating that the affiant willingly and “affirmatively distort [ed] the truth.” Id

. at 788. O missions13 are made with reckless disregard where “an officer withholds a fact in his ken that ‘[a]ny reasonable person would have known . . . was the kind of thing the judge would wish to know. ’ ” Id. (quoting United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.1993)).

C

.

T he District Court found an omission in the affidavit Sciulli prepared. I t concluded that Sciulli was aware that Wagner rep ort ed a partial license plate

– ACG

— on the day of the incident , b ut omitted it from his affidavit

. I t ruled that a reasonable person would know that a judge wou ld want to see this in the probable cause affidavit

.

The District Court was also convinced that Sciulli willfully made a number of false or misleading assertions

. Specifically, Sciulli false ly represented Wagner ’s description of the perpetrator as a “ mi ddle aged white male with dark hair with streaks of gray

. ” Appx. 245. The police incident report Sciulli prepared indicates she said that the man was “ about 35 years old, ” with “ dark hair

. ” Appx. 130. The District Court noted that Sciulli ’s averments m ore closely aligned with Andrews’ driver’s license photo, and concluded from this that Sciulli ’s actions went beyond carelessn ess or simple negligence. These were affirmative assertions of misleading information.

Next, the District Court was convinced t hat

, due to the license plate differences, Sciulli ha d an “obvious reason” to doubt that his assertion that Wagner spotted the “same vehicle” the day after the incident. Andrews, 2015 WL 5732101, at *6. Similarly, it concluded Sciulli ’s statement14 that Wa gner po sitively identified Andrews “ again” was inaccurate because it overstated her confidence in the identification. None of these c onclusions by the District Court are at issue in this appeal. 9

W e are convinced , however, that the District Court erred by failing to identify an additional omission

. In spite of ruling that Sciulli ’s reference to the “same vehicle” was a misleading assertion

, the District Court concluded that the record did not provide any evidence that the officer knew there were differe nces between Andrews’ car and the perpetrator’s car

. This is error. 10 Sciulli affirmed that

, after speaking with Wagner and her mother on November 26, 2012 about the location of Andrews’ car , he went to look at the

9 Andrews claims that the District Court erred by failing to rule on the impact of Sciulli’s words to Wagner as he
p resented the photo array to her. However, Sciulli included what he said to Wagner in the affidavit. Appx. 245. Therefore, Sciulli neither omitted or misrepresented these words. Andrews also takes issue with certain remarks Sciulli made after Wagner sel ected his photo. But, the District Court properly ruled that this was irrelevant to Wagner’s decision because it occurred after she selected a photograph.

10 We presume that, if the District Court had reconstructed the affidavit, it would have corrected t he affidavit by changing “this same vehicle” to “a vehicle.” In light of this, to be consistent with the District Court’s findings, we treat the details about Andrews’ car separately as an omission from the affidavit, rather than a misrepresentation.15 vehicle

. He was aware, at that time, t hat the car was not a four

- door sedan.

Q. Did you ma ke any

effort to go to the Axiom parking lot to observe the vehicle that Ms. Wagner or [her mother] said was there when they observed it on November 26, 2012?

A. Yes.

Q. Okay, when did you go to tha t parking lot?

A. I can ’ t recall an exact time. It would have been after speaking with them.

Q. When you saw that vehicle, you knew that it was not a four door, correct?

A. Yes.

Appx. 15 1

- 5 2. Sciulli expressed uncertain ty about the time, not the da te, that he went to the parking lot

. Moreover, h e admit ted knowing that Andrews’ car was different from Wagner’s description

. This is clear evidence that, at some point on November 26, 2012, Sciulli knew that Andrews’ car was different from the car Wagne r described the previous16 day. 11 Sciulli equivocates only on whether he had this knowledge before he wrote the affidavit. Appx. 152. But, there is no dispute that Sciulli signed and swore to the truthfulness of his affidavit on November 28, 2012. Appx. 2 45. This is significant.

W hen an officer submits a sworn affidavit of probable cause, he or she “is not free to disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable cause exists.” Dempsey , 834 F.3d at 469 (quoting Wilson , 212 F.3d at 790). Therefore, even if Sciulli drafted the affidavit on November 26, 2012, before going to the parking lot

, he, at the very least, had good reason to doubt , on November 28, 2012, the truthfulness of his affidavit that falsely stated Andrews’ car was the same red four

- door sedan that Wagner described on the day of the incident

. C onsistent with the District Court ’s ruling on the license plate number , we are confident that th is omission regarding the di screpancy in the number of doors on the cars is something that “any reasonable person would know that a judge would want to know. ” Wilson , 212 F.3d at 783

.

D.

The District Court’s analysis focused on the omitted license plate numb er and the overstateme nt of confidenc e attached to Wagner’s positive identificatio n of Andrews

. But,

11 Eve n if we were to read this portion of the record as ambiguous, Andrews is entitled to a favorable, reasonable inference at summary judgment that Sciulli possessed this knowledge on November 26, 2012.17 it did not present a reconstructed affidavit that corrects misleading assertions and includes omitted evidence

. T he memorandum opinion was filed roughly eleven months before w e clarified our requirement that courts “ perform a word

- by

- word rec onstruction of the affidavit” to ensure that all relevant evidence known to the police officer at the time is considered in the materiality analysis. Dempsey , 834 F.3d at 470. Therefore, p articularly since we have concluded that there is an additional omission, we will

— in the interest of judicial economy

— reconstruct the affidavit

, rather than require it to be done on remand. Id. at 475. It read s as follows:

Officers were notified on

11/ 25/12 at approximately 1112 hours, of a possible child luring incident. I, officer Sciulli , and officer Ruiz were dispatched to 1309 Island Avenue to meet the victim. At this time, officers spoke with the victim. The female juvenile's information was ob tained and is on record and said juvenile and parent will be present at all court hearings.

The victim (female juvenile age 15) stated that while walking home from a friend's house, a red vehicle with four doors pulled up next to her while walking on the sidewalk and asked her (juvenile age 15) if she wanted a ride. The18 victim stated “NO”. The defendant then said “COME ON, JUST GET IN”. The victim then said “NO, I ’ M FINE. Now I am going to report you .” The victim then stated that the vehicle sped
away

.

The victim then described this male as a middle aged white male with dark hair with streaks of gray [about 35 years old]. Victim described the vehicle as a red 4 door sedan. [She identified a partial license plate as ACG, PA tag.]

On 11/26/12, the v ictim spotted this same vehicle described above [a vehicle, a red three

door coupe], driving on Island Avenue, while riding with her mother. She identified the plate as JDG4817, PA tag. They followed the vehicle to Axion

, and victim again positively iden tified the male driver as the suspect she encountered the previous day.

The victim and her mother came to the station to give officers this information. Officers ran the PA19 plate, JDG4817, and found it to be registered to David Gene Andrews, out of Beave r Falls, PA. Based on this information, officers created a line up using similar identifiers as Andrews.

The victim was shown a line up, created by myself and officer Gruber, generated by descriptors through J

- NET[sic]. The victim was asked to look at t he pictures and to see if there was anyone of the pictures that she recognized as the driver of the car. She was advised that he might or might not be in the pictures. The victim looked at the pictures and almost immediately picked out the picture of def

endant. The defendant was identified through JNET Pa. drivers [sic] license as David Gene Andrews, DOB [REDACTED].

Your affiant respectfully requests that a warrant be issued for David Gene Andrews based on the facts enumerated above.

E

.20 To affirm the D istrict Court ’ s grant of summary judgment, we must conclude that “no reasonable jury could find facts that would lead to the conclusion” that the reconstructed affidavit “lacked probable cause.” Wilson

, 212 F.3d at 792. When the District Court ruled that the omissions and misleading assertions it found were not material to probable cause, it did so convinced that there were no subst antial distinctions between the facts in Wilson and in this

case

. Although we ultimately conclude that Wilson is distinguish ed, it does provide a useful point of reference in our analysis of this case.

In Wilson , a police officer (Darrin Russo) claimed that probable cause for a warrant existed because an eyewitness (the owner of a floral shop that was robbed) positively identi fied Franklin Wilson from a photo array. Id. at 785

. Russo excluded some exculpat ory evidence

. 12 W e decided

12 (1) Russo did not inform the court that the shop owner (who se height was around 5ˊ6 ̋) estimated the robber’s height on the day of the crime to be between 6ˊ2 ̋ and 6ˊ4 ̋; but, the man she identified three days later in a photo lineup, Wilson, was only 5ˊ11 ̋. Id. at 785. ( 2 ) Russo did not mention to the

court that the floral shop employee looked at the same photo array and did not identify anyone. (The floral shop employee estimated that the robber was 6ˊ5 ̋tall.) Id. ( 3 ) Russo did not inform the court that a dental office employee, who linked the others’ p hysical descriptions of the robber to Wilson, saw him at a time that contradicted the account given by the two in the floral shop. The dental office employee saw Wilson in the shopping center around 3:30 PM; but, the shop owner and21 that the ex c ulpatory evidence Russo left out did not fatally undermine the eyewitness’ positive identi fication and concluded that “[ w ] hen a polic e officer has received a reliable identification by a victim of his or her attacker, the police have probable cause.” Id. at 7 91 (quoting Sharrar v. Felsing

, 128 F.3d 810, 818

- 19 (3d Cir. 1997)). 13 Nonetheless, stressing that probable cause requires an in dividualized analysis, we also said that “[i]ndependent exculpatory evidence or substantial evidence of the witness ’ s own unreliability that is known by the arresting officers could outweigh the identification such that probable cause would not exist.” Id

. at 790. Therefore, since the District Court’s probable cause ruling in this case rests squarely on Wagner’s positive identification of Andrews , our materiality review centers on whether any of the mis leading assertions and omi tted facts that we correcte d in our reconstructed affidavit could outweigh this identification , or undermine reliance on it

.

F.

shop employee said the robber was in their store from 3:00 PM to 3:50 PM. Wilson, 212 F.3d at 784

- 85.

13 Probable cause to arrest “exists whenever reasonably trustworthy information or circumstances within a police officer's knowledge are sufficient to warrant a person of

reaso nable caution to conclude that an offense has been committed by the person being arrested.” United States v. Myers, 308 F.3d 251, 255 (3d Cir.2002)

.22 The first changes to the affidavit concern Wagner’s physical description of the perpetrator from the day of the incident. Sciulli misrepresented the des cription by, as the District Court noted, making it hue closer to the image of Andrews’ driver’s license photo. The reconstructed affidavit reads as follows:

The victim then described t his male as a middle aged white male with dark hair with streaks of
g ray [about 35 years old]

.

W e agree with the District Court ’s application of Wilson to these mis leading assertions ; standing alone, they would not be material to probable cause.

In Wilson

, the police officer did not inform the court that the shop owne r estimated the robber’s height on the day of the crime to be between 6ˊ2 ̋ and 6ˊ4 ̋; but, the man she identified three days later in a photo lineup ( Wilson ) , was only 5ˊ11 ̋. Id. at 785. W e ruled that “ this indication of unreliability does not, from the vantage point of the arresting officer, fatally undermine the forceful positive identification. ” Id. at 791

.

W e e laborated , however, that different facts could produce different results. W e posed the example of a n officer who is aware that a witness described the robber a s 7ˊ tall , but select ed a person in a photo lineu p who is actually 5ˊ tall

. This “s ubstantial evidence of the witness's own unreliability”

c ould change the probable cause analysis

. Id. at 79 0

. We also gave a scenario in which an officer knows about reliable

, independent

, exculpatory DNA evidence that contradict s a23 positive identification

. In such a case “the positive identification would not be enough ” to outweigh such evidence. Id

. Th e s e example s w ere , of cours e , illustrative of a common sense approach to the materiality analysis ; t hey are not brig ht

- line rule s

. See Illinois v. Gates, 462 U.S. 213, 232 (1983) ( “[ P ]robable cause is a fluid concept

— turning on the assessment of probabilities in particular factual context s

— not readily, or even usually, reduced to a neat set of legal rules.”);

s ee also Goodwin v. Conway , 836 F.3d 321, 327 (3d Cir. 2016) (Probable cause analysis uses a “ common sense approach ” to issues grounded in a totality of the circumstances.). Nonetheless, we can safely extract from them a genera l principle that glaring di screpancie s in a witness’ testimony can undermine the reliability of an eyewitness who provides a positive identification. 14 The

14 We regard “glaring differences” as those that would be , by the lights of any reasonable person in t he s ame circumstances, significant because they fall well outside common

- sense margins of erro r that typically apply to witness’ subjective observations involving estimation and approximation

. These types of discrepancies are not easily or reasonably reconcil ed. Compare Gerstein v. Pugh , 420 U.S. 103, 121 (1975) (Probable cause analysis “does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands.”(emphasis added)) ; and, Dempsey

, 834 F.3d at 4 8 1 (Witness estimates of time are notoriously unreliable.); and, Peet v. City of Detroit, 502 F.3d 557, 564 (6th Cir. 2007) (The “differences are minor and are of the sort to be expected when different eye witnesses recollect the same event.”); with

, Robins on v. Winslow Twp

., 973 F. Supp. 461, 471 (D.N.J. 1997) ( “ A reasonable jury24 same is t rue when our review uncovers highly reliable

, independent, exculpatory evidence known by the officer.

Applying this understandi ng to the facts in question here, Sciulli ’s misrepresentation of Wagner’s description of the perpetrator ’s age and hair

, on its own, does not outweigh or undermine her positive identification

. Although Sciulli ’s misrepresentations did make Wagner’s descr i ption of the perpetrator seem more like Andrews, correcting “middle aged” to read “about 35 ,” and deleting a reference to a

“ streaks of gray ” in the perpetrator’s hair are, by our lights, trivial differences that would not impact a reasonable jury’s concl usions about probable cause. Sc iu lli’s misrepresentation made his description of the perpetrator’s age inaccurate and
more vague . But , a s with the height difference in Wilson

, an estimate of age is inherently grounded in a subjective approximation that allow s for reasonable margin s of error. Here, e ven after making appropriate corrections, we regard the difference between “about 35” and Andrews’ actual age at

could conclude that although eyewitness descriptions are not always accurate, the police should have known that the eyewitnesses simply could not have described a 5ˊ4 ̋ man as being six foot tall. ”); and

, Mendez v. Artuz, 303 F.3d 411, 41 5 (2d Cir. 2002) ( In the context of a habeas corpus case, where testimony described the shooter as between 5ˊ4 ̋ and 5ˊ8 ̋ and 130 pounds and the he ight and weight of the suspect was 6ˊ2 ̋and 190 pounds , the court said: “[t]he contradictory eyewitness testimony about the shooter ’ s height and weight . .

. gives us pause. . . .These discrepancies are significant and troubling.”).25 that time (51) as difficult to visualize or estimate in any precise way, fall ing within a margi n of error that is expected with approximations of this type. Therefore, this misleading assertion did not obscure a discrepancy that is meaningful enough , by itself, to create doubt about the credibility of the witness. 15 For these reasons, we conclude t hat Sciulli ’s misrepresentation , standing alone, would not be material to the determination of probable cause here. Similarly, Sciulli ’s misrepresentation of Wagner’s description of the perpetrator ’s hair (adding the detail of “streaks of gray ”) was also undeniably inaccurate

, and ma de the description sound closer to Andrews’ hair color . Nonetheless, Wagner’s more general reference to “ dark hair ” is still inculpatory (albeit less strong)

, given that Andrews had black hair , and would not, by itself, be ma terial to probable cause

.
In summary, we conclude that this collection of misrepresentation s in Sc iu lli's affidavit concerning the physical description of Andrews, standing alone, would not be sufficient to pr event a fact

- finder from concluding that th e reconstructed affidavit still established probable cause. 16

15 L ike Wilson , our assessment of the materiality of the age discrepancy mig ht be different if Andrews was 80 (or perhaps 16) years old: situations in which a mere error of approximation would not reasonably explain the gap.

16 Of course, we must consider whether misrepresentations and reckless omissions, “considered in the cont ext of the affidavit as a whole were . . . material, or necessary, to the finding of probable cause.” Dempsey , 834 F.3d at 477. Thus, there may be instances when no single omission or26 G.

We turn, next, to the portion of the reconstructed affidavit dealing with cars that Wagner linked to the crime. We made the following corrections

.

Victim described the vehicle as a red 4 doo r sedan. [She identified a partial license plate as ACG, PA tag.]

On 11/26/12, the victim spotted this same vehicle described above [ a vehicle, a red three

-

misrepresentation is sufficient to defeat a finding of probable

cause, but the combined effect of the omissions and misrepresentations suffices to call into question the reliability of the affiant and the affiant’s witnesses such that the question of probable cause cannot be resolved on a summary judgment motion. We analyze here the misrepresentations in Sc iu lli’s affidavit concerning Wagner’s identification of Andrews to make clear that the discrepancies concerning Andrew s’ physical characteristics would not, standing alone, preclude a finding of probable cause. Of course, these are not the only misrepresentations that we have found. At a trial, the jury will be able to consider the reconstructed affidavit as a whole to make the ultimate determination as to whether a neutral magistrate, weighing both the inculpatory and

ex culpatory information in the reconstructed affidavit, would have found probable cause when presented with a properly drawn affidavit.27 door coupe], driving on Island Avenue, while riding with her mother.

W e agree with the District C ourt that Sciulli ’s assertion that Andrews’ car was the “same vehicle” convey ed a higher degree of confidence in Wagner’s positive identification than was due. Its materiality to probable cause, however, is best understood in the context of the omissions that accompany it. Therefore, we now turn to those.

Sciulli ’s affidavit hid from the magisterial district judge t he partial license plate number on the car Wagner described immediately after the crime . It also did not disclose that Andrews’ car was a three

- door coupe. These details plainly distinguish Andrews’ car from Wagner ’s initial descri ption

. U nl ike Wagner’s age estimate

, these are irreconcilable difference s that are not easily or reasonably explained. Importantly, Sciulli does not dispute thi s

. He
argue s only that he did not have timely knowledge of the differences. All of this gives weight to the conclusion that th ese discrepanc ies are “substantial evidence of the witness ’ s own unreliability” sufficient to outweigh her positive identificati on of Andrews. Id. at 791. However, the re is one additional aspect of this case that is decisive on this issue for us. We can explain it most easily by focusing on a portion of our decision in Wilson that, thus far, has not been discussed

.

In Wilson

, t hree witnesses contributed information that led to the decision by police to put Wilson’s image in a photo
array. A floral shop owner and employee (eyewitnesses to the crime) gave physical descriptions of the robber, but neither of them knew anything abo ut the robber’s identity.28 The third witness

— a woman who worked nearby in a dental office

— was not an eyewitness to the crime. But, upon hearing the descriptions from the floral shop owner and employee, she aided police by linking these to Wilson (who

was a dental patient), giving police his name, and indicating that he was in the area around the time of the robbery. Police were then able to obtain Wilson’s picture, put it in a photo array, and ask the floral shop owner and the floral shop employee to look at it. Wilson , 212 F.3d at 784

- 85.

In light of all of this, we ruled that the positive identification was reliable evidence of probable cause , in part, because : “[a]dded to this identification is the fact that [another witness] testified that she saw Wilson in the vicinity near the time of the theft. ” Wilson , 212 F.3d at 791. It mattered that the floral shop owner’s positive identification lined up with the judgment of an unrelated witness that Wilson was the robber. Wilson , 212 F.3d at 791; see als o Dempsey , 834 F.3d at 479 (c orroborating testimony factored into our conclusion that the corrected affi davit showed probable cause ).

Here

, unlike Wilson

, all evidentiary roads lead back to one person. Wagner was the only one who gave a description of t he perpetrator and car to police on the day of the crime. She also was the only one who implicated Andrews by giving police his license number after seeing his car the next day. This license number was the sole impetus for police to compile a photo array using the image of Andrews from which the positive identification was made. There are no other points of reference for Wagner’s positive identification.29 A lack of independent corroboration, alone, is not necessarily fatal to the reliability of a positi ve identification grounding probable cause in any given case . However, having only one witness as the source of information about a crime and perpetrator does, logically

, cast a brighter light on the body of evidence she or he provides. In such cases, t h e significance of an y consistency or discrepancy in the witness’ evidence is enhanced because the se are the only indicia of the witness’ reliability that are available

. See United States v. Singleton , 702 F.2d 1159, 1179 (D.C. Cir. 1983) (“[I]f we are

to rely upon the certainty of the witnesses, it is crucial to keep in mind that the witnesses were also positive about a number of aspects of their testimony that directly conflict with their identifications.”).

T he discrepancy here does not focus on a phys ical characteristic of the alleged perpetrator, but rather on the car that he drove. Yet, d etails about the car are central to Wagner’s account of the crime. A s we already noted

, the analysis of probable cause is driven by common sense, requiring that we review the totality of the circumstances. Goodwin , 836 F.3d at 327. From this perspective, the differences between the vehicle Wagner described on the day of the crime and Andrews’ car cannot be easily or reasonably explained or reconciled by the facts in the reconstructed affidavit

.

All of this

, inexorably

, lead s to the conclusion that Wagner must have been, either, mistaken about her observation of the car on the day of the crime ; or, mistaken one day later, when she identified Andrews’ car. T his substantial contradiction

— combined with the lack of independent corroboration of any aspect of the crime

—30 convinces us that Sciulli ’s omissions and mis leading assertion

are material to probable cause because they hid from the magisterial district judge a di screpancy that potentially undermines the sole witness’ reliability

. Accordingly, w e do conclude that t he reconstructed affidavit shows substantial evidence of the witness ’ own unreliability that could outweigh Wagner’s positiv e identification

. This ques tion must be resolved by the fact finder. See Lupyan v. Corinthian Colleges Inc., 761 F.3d 314, 322 (3d Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ). Therefore, i t wa s error for the District Court to rule that “no

reasona ble jury could find facts that would lead to the conclusion that . . . [ the reconstructed affidavit ] lacked probable cause.” Wilson, 212 F.3d at 7 92

. 17

17 The reconstructed affidavit also states the following.

They followed the vehicle to Axion, and victim again positively identified the male driver as the suspect she encountered the previous day

.
This is unquestionably misleading. Wagner gave police only a description of the physical characteristics of the perpetrator on the day of the incident. Therefore, when she watch ed Andrews get out of his car in the parking the next day, she was not positively identifying him “again.” A s the District Court ruled, the assertion overstates the confidence of Wagner’s observations. Nonetheless, we conclude that, by itself, this misle ading assertion would not materially impact a fact

- finder’s analysis of probable cause.31 H

.

This leaves us with the question of whether the rights

at issue were clearly established at the tim e. 18 W e need not dwell on this

. “[T]here is no question that . . . the right to be free from arrest except on probable cause, was clearly established” at the time of Andrews’ arrest. Orsatti , 71 F.3d at 483. Similarly, t he right to be free from prosecut ions on criminal charges that lack probable cause was also known and clearly established at the time that Sciulli prepared his affidavit. See Donahue v. Gavin , 280 F.3d 371, 380 (3d Cir. 2002). B oth rights were grounded in well

- settled law and thus, on t he record of this case, "it would be clear to a reasonable officer that [Sc iu lli's] conduct was unlawful in the situation he confronted." Saucier v. Katz , 533 U.S. 194, 202 (2001).

IV.

18 The District Court determined in the first stage of the analysis that there was no constitutional violation, and did not go any further. Because we reach a diffe rent conclusion about constitutional violations, we will also rule on the purely legal question of whether the law was clearly established

, rather than instruct the District Court to address it on remand.32 For all of these reasons, we will hold that the District Court erred by granting summary judgment to Sciulli on the basis of qualified immunity. Accordingly, we will reverse the order of the District Court and remand the cause for trial. 19

19 Sciulli also argues that Andrews waived any Fou rteenth Amendment due process claim. But since Andrews states that he is not pursuing a Fourteenth Amendment claim , this argument is irrelevant

.