PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 15-3393

__________

DAVID ANDREWS,

 Appellant 

v.

OFFICER ROBERT SCUILLI

__________

On Appeal from the United States District Court

for the Western 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 Allegheny Building

429 Forbes Building

Pittsburgh, PA 15219

Counsel for Appellant

Carol A. VanderWoude, Esq. [Argued]

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 crimes for 

which he was charged. He 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 throughout the record, in our Court’s caption, 

and in that of the District Court. Nonetheless, it is apparent 
3

appeal he contends that the District Court erred by granting 

summary 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 November 25, 2012 in Stowe Township, Pa, 

Brooke Wagner was walking on a sidewalk from a friend’s 

house to her home. She was fifteen years old. A man in a car

approached her and asked if she wanted a ride. She told him 

“no.” 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 mother, 

who told her to go home. The mother then called the police.

Both Officer Sciulli and Officer 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 the car had a Pennsylvania 

license plate bearing the letters ACG. She described the 

driver as a white male with dark hair, around 35 years old. 

Ruiz gave this information to Sciulli, who then went to the 

location of the incident. Sciulli prepared an Incident 

Investigation Report that same day, recording the 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 told 

her mother that it was the car that had stopped next to her the 

day before. She noted that the license number was JDG4817. 

They followed the car until it stopped in a parking lot. Her 

mother drove into the lot and parked. Wagner observed the 

driver get 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 drove her directly to the police 

station. They met with Sciulli and Officer Gruber.

2

 Wagner 

reported what she observed: the red car, the full license 

number, and the driver. She also stated her conclusion that 

this was the car and man she encountered the previous day. 

The officers checked the license number, JDG4817, in the 

JNET database and identified the car as belonging to David 

Andrews. They obtained Andrews’ 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. Wagner circled 

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 affidavit, 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 pp 11-13.

5The 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 side, 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 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 

obtained 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 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 the 

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 again 

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 

Andrews, 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 asked 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 the 

picture of defendant. The 

defendant was identified through 

JNET Pa. drivers [sic] license as 
8

David Gene Andrews, DOB 

[REDACTED].

Your affiant respectfully requests 

that a warrant be issued for David 

Gene Andrews based on the facts 

enumerated above.

Appx. 245.

6

The magisterial district judge reviewed the affidavit 

and issued the arrest warrant on November 28, 2012. That 

same day, police arrested Andrews and charged him with 

luring a child into a motor vehicle, stalking, corruption of a 

minor, and harassment. 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.” This location is referenced 

as “Axiom” in other places in the record. See e.g. Appx. 150. 

The record does not ground a conclusion 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 

when there is no genuine issue of material fact and the 

moving party is entitled to judgment as a matter of law. Fed 

R. Civ. P. 56(a). When we 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 

most favorable 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 against 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). Malicious 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 qualified immunity from this lawsuit because probable 

cause grounded the arrest and prosecution. “‘[G]overnment 

officials performing discretionary functions, generally are 

shielded from liability 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

 Since the 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 

allegations 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 clearly 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 constitutional violation question 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, because Sciulli arrested Andrews on a 

valid 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 or omissions that create[d] a falsehood in 

applying for a warrant.’” Sherwood v. Mulvihill, 113 F.3d 

396, 399 (3d Cir. 1997)). Therefore, we 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. 2000)] 

(quoting Sherwood, 113 F.3d at 399).’” Dempsey v. Bucknell 

Univ., 834 F.3d 457, 468–69 (3d Cir. 2016).

However, as we recently acknowledged, a certain 

tension exists when probable cause is at issue in a motion for 

summary judgment. Dempsey, 834 F.3d at 468. This is 

 
12

particularly so for analyses that center upon 

misrepresentations and omissions in the affidavit of probable 

cause. Although a finding of probable cause generally can be 

based on an officer’s credibility determinations and 

independent assessments of conflicting evidence, “it is 

axiomatic that at the summary judgment stage, we view the 

facts 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 

unfavorable 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 nonmoving party, 

did not demonstrate a “fair 

probability” that a crime occurred.

Id. For these reasons we rely 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 details,” and do not need a separate 

determination of relevance. The focus in these instances is 

upon evidence demonstrating that the affiant willingly and 

“affirmatively distort[ed] the truth.” Id. at 788. Omissions
13

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.

The District Court found an omission in the affidavit 

Sciulli prepared. It concluded that Sciulli was aware that 

Wagner reported a partial license plate–ACG—on the day of 

the incident, but omitted it from his affidavit. It ruled that a 

reasonable person would know that a judge would 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 falsely represented Wagner’s description 

of the perpetrator as a “middle 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 more closely aligned with 

Andrews’ driver’s license photo, and concluded from this that 

Sciulli’s actions went beyond carelessness or simple 

negligence. These were affirmative assertions of misleading 

information.

Next, the District Court was convinced that, due to the 

license plate differences, Sciulli had 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 statement
14

that Wagner positively identified Andrews “again” was 

inaccurate because it overstated her confidence in the 

identification. None of these conclusions by the District 

Court are at issue in this appeal.9

We 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 differences 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 

presented 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 selected 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 the 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, that the car was not a 

four-door sedan.

Q. Did you make 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 that 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. 151-52. Sciulli expressed uncertainty about the time, 

not the date, that he went to the parking lot. Moreover, he 

admitted 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 Wagner described the previous 
16

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. 

245. This is significant.

When 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. Consistent with the District Court’s ruling on the 

license plate number, we are confident that this omission 

regarding the discrepancy 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 number and the overstatement of confidence 

attached to Wagner’s positive identification of Andrews. But, 

 

11Even 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. The 

memorandum opinion was filed roughly eleven months 

before we clarified our requirement that courts “perform a 

word-by-word reconstruction 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, particularly 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 reads 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 

obtained 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. The 
18

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 victim spotted 

this same vehicle described 

above [a vehicle, a red threedoor 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 

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 
19

plate, JDG4817, and found it to be 

registered to David Gene 

Andrews, 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 asked 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 the 

picture of defendant. 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 District 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 

substantial distinctions between the facts in Wilson and in this 

case. Although we ultimately conclude that Wilson is 

distinguished, 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 

identified Franklin Wilson from a photo array. Id. at 785.

Russo excluded some exculpatory evidence.

12

 We decided 

 

12 (1) Russo did not inform the court that the shop owner

(whose 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’ physical 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 and 
21

that the exculpatory evidence Russo left out did not fatally 

undermine the eyewitness’ positive identification and 

concluded that “[w]hen a police officer has received a reliable 

identification by a victim of his or her attacker, the police 

have probable cause.” Id. at 791 (quoting Sharrar v. Felsing, 

128 F.3d 810, 818-19 (3d Cir. 1997)).13 Nonetheless, 

stressing that probable cause requires an individualized 

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 misleading assertions and 

omitted facts that we corrected 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 

reasonable 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 description 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 this 

male as a middle aged white male 

with dark hair with streaks of 

gray [about 35 years old].

We agree with the District Court’s application of Wilson to 

these misleading assertions; standing alone, they would not be 

material to probable cause.

In Wilson, the police officer did not inform the court 

that the shop owner 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. We 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. 

We elaborated, however, that different facts could 

produce different results. We posed the example of an officer 

who is aware that a witness described the robber as 7ˊ tall, but 

selected a person in a photo lineup who is actually 5ˊ tall. 

This “substantial evidence of the witness's own unreliability”

could change the probable cause analysis. Id. at 790. We 

also gave a scenario in which an officer knows about reliable,

independent, exculpatory DNA evidence that contradicts a 
23

positive identification. In such a case “the positive 

identification would not be enough” to outweigh such 

evidence. Id. These examples were, of course, illustrative of 

a common sense approach to the materiality analysis; they are 

not bright-line rules. 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 contexts—not 

readily, or even usually, reduced to a neat set of legal rules.”); 

see 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 general principle that glaring discrepancies in a 

witness’ testimony can undermine the reliability of an 

eyewitness who provides a positive identification.14 The 

 

14We regard “glaring differences” as those that would be , by 

the lights of any reasonable person in the same circumstances, 

significant because they fall well outside common-sense 

margins of error that typically apply to witness’ subjective 

observations involving estimation and approximation. These 

types of discrepancies are not easily or reasonably reconciled. 

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 481 (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, Robinson v. Winslow Twp., 

973 F. Supp. 461, 471 (D.N.J. 1997) (“A reasonable jury 
24

same is true when our review uncovers highly reliable, 

independent, exculpatory evidence known by the officer.

Applying this understanding 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 description 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 

conclusions about probable cause. Sciulli’s misrepresentation 

made his description of the perpetrator’s age inaccurate and 

more vague. But, as with the height difference in Wilson, an 

estimate of age is inherently grounded in a subjective 

approximation that allows for reasonable margins of error. 

Here, even 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, 415 

(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 height 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, falling within a margin 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 that 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 made 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 material to probable cause. 

In summary, we conclude that this collection of 

misrepresentations in Sciulli's affidavit concerning the 

physical description of Andrews, standing alone, would not 

be sufficient to prevent a fact-finder from concluding that the

reconstructed affidavit still established probable cause.16

 

15 Like Wilson, our assessment of the materiality of the age 

discrepancy might 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 context 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 or 
26

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 door 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 

Sciulli’s affidavit concerning Wagner’s identification of 

Andrews to make clear that the discrepancies concerning 

Andrews’ 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 

exculpatory 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.

We agree with the District Court that Sciulli’s assertion that 

Andrews’ car was the “same vehicle” conveyed 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 the 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 

description. Unlike Wagner’s age estimate, these are

irreconcilable differences that are not easily or reasonably 

explained. Importantly, Sciulli does not dispute this. He 

argues only that he did not have timely knowledge of the 

differences. All of this gives weight to the conclusion that 

these discrepancies are “substantial evidence of the witness’s 

own unreliability” sufficient to outweigh her positive 

identification of Andrews. Id. at 791. However, there 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, three 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 about 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 also 

Dempsey, 834 F.3d at 479 (corroborating testimony factored 

into our conclusion that the corrected affidavit showed 

probable cause).

Here, unlike Wilson, all evidentiary roads lead back to 

one person. Wagner was the only one who gave a description 

of the 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 positive 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, the 

significance of any consistency or discrepancy in the witness’ 

evidence is enhanced because these 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.”).

The discrepancy here does not focus on a physical 

characteristic of the alleged perpetrator, but rather on the car 

that he drove. Yet, details about the car are central to 

Wagner’s account of the crime. As 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, leads 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. This 

substantial contradiction—combined with the lack of 

independent corroboration of any aspect of the crime—
30

convinces us that Sciulli’s omissions and misleading assertion 

are material to probable cause because they hid from the 

magisterial district judge a discrepancy that potentially 

undermines the sole witness’ reliability. Accordingly, we do 

conclude that the reconstructed affidavit shows substantial 

evidence of the witness’ own unreliability that could 

outweigh Wagner’s positive identification. This question 

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, it was error for the District Court to rule 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.

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 watched 

Andrews get out of his car in the parking the next day, she 

was not positively identifying him “again.” As the District 

Court ruled, the assertion overstates the confidence of 

Wagner’s observations. Nonetheless, we conclude that, by 

itself, this misleading 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 time.18 We 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, the right to be free from prosecutions 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). Both rights were grounded in well-settled law and 

thus, on the record of this case, "it would be clear to a 

reasonable officer that [Sciulli'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 different 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 Fourteenth 

Amendment due process claim. But since Andrews states 

that he is not pursuing a Fourteenth Amendment claim, this 

argument is irrelevant.