2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-19-2000

Wilson v. Russo

Precedential or Non-Precedential:

Docket 98-5283

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Recommended Citation

"Wilson v. Russo" (2000). 2000 Decisions. Paper 105.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/105
Filed May 19, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 98-5283 

FRANKLIN WILSON, Appellant 

v. 

DARRIN J. RUSSO, INDIVIDUALLY AND AS A POLICE 

OFFICER OF THE FRANKLIN TOWNSHIP POLICE 

DEPARTMENT, SOMERSET COUNTY, NEW JERSEY; 

CLEMENT WORONIECKI, INDIVIDUALLY AND AS A 

POLICE OFFICER OF THE FRANKLIN TOWNSHIP POLICE 

DEPARTMENT, SOMERSET COUNTY, NEW JERSEY; 

FRANKLIN TOWNSHIP POLICE DEPARTMENT, SOMERSET 

COUNTY, NEW JERSEY; TOWNSHIP OF FRANKLIN, 

SOMERSET COUNTY, NEW JERSEY; JOHN DOES, 1-15, 

represent 1 or more employees or agents of defendant, 

Franklin Township Police Department who, singly or in 

combination participated in the unlawful search, false 

arrest and false imprisonment of the plaintiff; 16-30, 

represent 1 or more employees or agents of said 

defendant who, singly or in combination participated in 

the supervision and training of the defendants, Russo, 

Woroniecki, and John Does 1-15; 31-45, represent 1 or 

more employees or agents of defendant, Township of 

Franklin who, singly or in combination, participated in 

the supervision and training of said individual defendants. 

On Appeal From the United States District Court 

For the District of New Jersey 

(D.C. Civ. No. 97-cv-00546) 

District Judge: Honorable Mary Little Cooper 
Argued: November 4, 1999 

Before: BECKER, Chief Judge, GARTH, Circuit Judges 

and POLLAK,* District Judge 

(Filed: May 19, 2000) 

 IRINA ELGART, ESQUIRE (ARGUED) 

 Wolff & Samson 

 5 Becker Farm Road 

 Roseland, NJ 07068 

 LOUIS S. RAVESON, ESQUIRE 

 Urban Legal Clinic, Rutgers-Newark 

 15 Washington Street 

 Newark, NJ 07102 

 Counsel for Appellant 

 RICHARD J. GUSS, ESQUIRE 

 (ARGUED) 

 Bivona, Cohen, Kunzman, Coley, 

 Yospin, Bernstein & DiFrancesco 

 15 Mountain Blvd. 

 Warren, NJ 07059 

 Counsel for Appellee 

OPINION OF THE COURT 

BECKER, Chief Judge. 

Franklin Wilson was arrested and spent a month in jail 

for an armed robbery he did not commit. As plaintiff in this 

civil rights lawsuit arising under 42 U.S.C. S 1983, he 

claims that his arrest and subsequent incarceration

violated his federal and state constitutional rights to be free 

from arrest and detention without probable cause. The crux 

of his claim is that the arresting officer, defendant Darrin J. 

_________________________________________________________________ 

* Honorable Louis H. Pollak, United States District Court Judge for the 

Eastern District of Pennsylvania, sitting by designation. 

 2 
Russo, both lied and omitted material facts during his 

application for Wilson's arrest warrant. Russo told the 

judge that two victims, who each had ample opportunity to 

view the robber, had stated that the assailant was between 

6'3" and 6'5". Russo did not, however, tell him that 

Wilson's driving abstract showed him to be 5'11". Nor did 

Russo tell the judge that one of these eyewitnesses did not 

identify Wilson when shown a photographic array. What he 

did tell him was that the other victim positively identified 

Wilson, and that someone else had seen Wilson in the 

vicinity near the time of the robbery. Wilson urges us to 

decide that Russo omitted the exculpatory facts with 

"reckless disregard for the truth" and that the warrant 

affidavit would not have established probable cause if the 

officer had been more forthcoming. 

The District Court found that Russo had qualified 

immunity and granted summary judgment in his favor. In 

evaluating a claim that an officer both asserted and omitted 

facts with reckless disregard for the truth, we hold that: (1) 

omissions are made with reckless disregard for the truth 

when an officer recklessly omits facts that any reasonable 

person would know that a judge would want to know; and 

(2) assertions are made with reckless disregard for the truth 

when an officer has obvious reasons to doubt the truth of 

what he or she is asserting. Viewing the facts in the light 

most favorable to the plaintiff, we conclude that Russo 

acted in reckless disregard for the truth in some, but not 

all, of his omissions and assertions to the judge. However, 

since none of these misstatements or omissions were

material, in that the warrant would have established 

probable cause even if Russo had not made them, we 

conclude that Wilson's right to be free from arrest without 

probable cause was not violated. Therefore, we affirm the 

grant of summary judgment.1 

_________________________________________________________________ 

1. Wilson also appeals the District Court's grant of summary judgment to 

the officer who initiated the investigation, Clement Woroniecki, who, he 

alleges, violated his rights by inadequate and sloppy investigation. 

However, there is insufficient evidence in the record that Woroniecki's 

actions effected a deprivation of Wilson's rights, let alone an 

unconstitutional deprivation. As we discuss further infra at note 5, 

negligent police work, even if proven, does not violate the due process 

 3 
I. Facts and Procedural History 

A. The Robbery and Preliminary Investigation 

On February 3, 1995, Officers Lipp and Woroniecki of the 

Franklin Township (New Jersey) Police Department 

responded to a call reporting an armed robbery at the Great 

Expressions Floral Shop in the Franklin Towne Center. 

Detective Woroniecki interviewed Renee Braverman, the 

owner of the shop, and Graham Druce, an employee in the 

shop. They both said that the robber was in the store from 

a little before 3:00 pm until approximately 3:50 pm. When 

the robber entered the shop, Braverman was discussing a 

bridal order with a customer. Several times during the 

robber's visit, Druce approached him and asked him if he 

needed assistance, which he repeatedly declined. The bridal 

order customer left around 3:50, and the robber brought a 

glass vase and candle to the counter, behind which 

Braverman was standing. The robber asked Druce, who

was standing in the back room, if the candle would cause 

the glass vase to break. When Druce walked towards the 

counter the robber put his left hand on Druce's right 

shoulder and told Braverman to empty the register quickly 

and put the money in a brown paper bag along with the 

candle and vase. Druce and Braverman both said they saw 

a small revolver in his right hand. 

Braverman, a white woman who is "around five six," 

described the robber as a light skinned black male,

approximately 30 years old, "very tall," between 6'2" and 

6'4", between 190 and 200 pounds, with black wavy hair, 

a waist-length light denim jacket, cream colored sweater, 

and blue denim jeans. Druce, a "five-five,five-six" white 

man, described the robber as a "very tall male, light black 

in color, his middle 20s, about 25, about 6'5" tall, maybe a 

_________________________________________________________________ 

clause. We will therefore affirm the District Court's grant of summary 

judgment for Woroniecki without further discussion.

Wilson originally sued the Franklin Township Police Department and 

the Township of Franklin, but he did not appeal the District Court's 

grant of summary judgment as to those parties. 

 4 
little bit taller." He told the police the robber had an athletic 

build, was clean shaven, had well groomed short hair and 

was wearing a blue denim jacket, blue denim jeans, and 

sneakers. Druce said that if he saw a picture of the robber 

he was absolutely certain he could pick him out because of 

his noticeable height. 

Detective Bisignio, also of the Franklin Township Police, 

canvassed the area for witnesses. Kelly N. DaVila, who 

worked in a nearby dental office, told him that she had 

seen a dental patient named Franklin Wilson in the 

Franklin Center, walking away from the Mayfair Foodtown 

Area towards a pizza shop after 3:00 that day, "probably 

about a half hour" before the police officers arrived (making 

her estimated viewing around 3:30). She described Wilson 

as a 6'0" tall, clean shaven, thin, light-skinned black man 

with brown hair and brown eyes. She told Bisignio that he 

had some entanglement with heroin because his dental 

records indicated that he was seeking methadone 

treatment. 

Bisignio relayed this information to Woroniecki, who 

conducted a criminal history and Department of Motor 

Vehicles (DMV) check of Wilson. The criminal history report 

listed Wilson as being 5'10" and weighing 160 pounds. The 

DMV record apparently listed him as being 5'11". 

Woroniecki received a photograph of Wilson from the

Middlesex County Identification Bureau, which he took to 

the Somerset County Sheriff 's Office in order to compile a 

photographic lineup. The office compiling the photographic 

array was apparently not aware of the physical descriptions 

of the witnesses. On the afternoon of February 6, 

Woroniecki fell ill and ceased all involvement in the 

investigation of the floral shop robbery. 

Detective Russo took over the investigation. On February 

6, he was provided with Officer Lipp's report and the 

photographic array from the Somerset County Sheriff 's 

Office. Lipp's report includes a summary of the robbery and 

a description of the robber that combined the Druce and 

Braverman physical descriptions. The report identifies the 

robber as between 6'3" and 6'5". It does not mention 

DaVila's assertion that she saw Wilson. Russo claimed that 

he did not review any other officer's notes. He testified that 

 5 
he reviewed and authorized the photographic array without 

knowing what the witnesses had said about the robber. 

Russo showed the photographic array to Braverman and 

Druce individually. He told them each that the robber 

might not be in the array, and that if they were to identify 

anyone they must be one hundred percent certain that the 

person they were identifying was the person who robbed 

them. Braverman immediately selected Wilson's photograph 

as representing the robber. Druce studied the array for 

about two minutes, indicating no recognition, andfinally 

concluded that he could not say with certainty that he 

recognized the robber among them. 

Russo testified that he does not remember whether he 

knew Wilson's height and weight when he applied for the 

warrant. When questioned during deposition about whether 

he knew Wilson's actual height and weight, he said"Well, 

it'd probably be on the driver's license abstract because I 

obtained that actually just for his address." In his response 

to Russo's summary judgment motion, Wilson made the

uncontroverted assertion that this information is on the 

driver's abstract. 

B. The Arrest Warrant Application, Arrest, and 

 Initiation of Suit 

Russo met with a prosecutor and reviewed the facts 

before the two of them sought a search warrant from

Superior Court Judge Dilts. Through his responses to the 

questions of the prosecutor, Russo informed Judge Dilts 

that two witnesses had described the robber as a light 

skinned black male "six-three to six-five." He did not tell 

him that Wilson's driver's abstract stated that he was 5'11", 

or that his criminal history report stated that he was 5'10". 

Russo also represented that he had created a photographic 

array "as a result of the physical descriptions." This is 

contrary to what the record indicates, which is that those 

making the photo array had the photograph of Wilson, but 

were never told of the victims' descriptions of the robber. He 

told the judge that the owner of the florist shop 

unequivocally picked Wilson out of a photo lineup. He did 

not tell him that the other witness had failed to identify 

 6 
Wilson as the robber when shown the same photo array. 

Russo stated that an employee of a nearby dentist's office 

who recognized Wilson had seen him around three o'clock. 

He did not inform the judge that she had stated that she 

saw Wilson around 3:30, by which time the robber was 

already in the shop. 

We also note that Russo answered the prosecutor's 

questions as if he had been there himself, suggesting that 

he had been the primary investigator and interviewer at the 

scene of the crime. He did not tell the judge that, in the 

photo array, Wilson looked ethnically different from the 

others.2 Russo also did not inform the judge that height 

and weight were not indicated on the photo lineup. 

On the basis of Russo's testimony, Judge Dilts issued a 

warrant of arrest and to search for evidence. Russo

executed the warrant the evening of February 6. Wilson was 

incarcerated for a month, after which the Somerset Grand 

Jury refused to indict him. Thereafter, he brought this suit 

against Russo, Woroniecki, and the Franklin Township 

Police Department under 42 U.S.C. S 1983, alleging that his 

Fourth, Fourteenth, and Fifth Amendment rights were

violated, as well as his rights under the New Jersey 

Constitution, and the New Jersey common law. The 

defendants moved for summary judgment, and the District 

Court granted the motion.3 Wilson appealed. 

_________________________________________________________________ 

2. We note this omission not because we think there was a marked 

difference in appearance, but because Wilson's briefs focus on it. As we 

discuss infra, our independent review of the photographic array satisfies 

us that although Wilson has slightly different features than the other 

five 

faces pictured, no reasonable jury could find that the difference was 

significant or prejudicial. 

3. The District Court did not address the officers' motion for summary 

judgment on the state law claims in its decision. Therefore, although we 

will affirm the grant of summary judgment on the federal claims, we will 

remand to the District Court so that it may evaluate the state claims and 

determine whether or not to retain jurisdiction of them under 28 U.S.C. 

S 1367(c). 

 7 
II. The Right to Be Free of Unlawful Arrest 

To recover under 42 U.S.C. S 1983, Wilson must 

establish that a state actor engaged in conduct that 

deprived him of "rights, privileges, or immunities" secured 

by the constitution or laws of the United States. See Kneipp 

v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Because 

Russo has fairly raised a qualified immunity defense, 

Wilson has a further burden. According to the doctrine of 

qualified immunity, law enforcement officers acting within 

their professional capacity are generally immune from trial 

"insofar as their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable 

person would have known." Wilson v. Layne, 119 S.Ct. 

1692, 1699 (1999) (quoting Harlow v. Fitzgerald , 457 U.S. 

800, 818 (1982)). 

The qualified immunity defense requires that we engage 

in a two-step analysis. First, we must "determine whether 

the plaintiff has alleged the deprivation of an actual 

constitutional right at all." Conn v. Gabbert , 119 S. Ct. 

1292, 1295 (1999). Only if he has should we "proceed to 

determine whether that right was clearly established at the 

time of the alleged violation." Id. Summary judgment is 

appropriate if no reasonable juror could conclude that 

Wilson's clearly established rights were violated. See Orsatti 

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

This does not mean that the jury determines the 

contours of the right. Rather, after making a legal

determination about the existence of a right, and whether 

it is clearly established, we determine whether the facts on 

the record are such that a jury could conclude that the 

clearly established right was violated. See id. As a 

methodological matter, we commonly work backwards: We 

arrange the facts in the light most favorable to the plaintiff, 

and then determine whether, given precedent, those"facts," 

if true, would constitute a deprivation of a right. And then, 

if necessary, we determine if the right is clearly established. 

In this case, since we conclude that Wilson has not

adduced facts from which a jury could conclude that his 

constitutional rights were deprived at all, we need not 

engage in the second inquiry. 

 8 
Wilson contends that he was arrested without probable 

cause in violation of his Fourth Amendment right to be free 

from unreasonable seizure. He acknowledges that he was 

arrested pursuant to a warrant, but claims that the

warrant was not supported by probable cause. However, 

the statements given to Judge Dilts by Officer Russo clearly 

establish probable cause: He was told that a robbery had 

taken place; that the descriptions of the victims were used 

to compile a photo array; that one of the victims had 

quickly and positively identified the suspect from the photo 

array; and that an employee in a nearby establishment had 

seen Wilson in the vicinity near the time he supposedly 

entered the flower shop. See infra Section I.B. 

In light of these facts, the only way that Wilson can 

succeed is if he proffers evidence that Russo recklessly 

disregarded the truth in his warrant application, and that 

a warrant application based on what Russo should have 

told the judge would have lacked probable cause. As this 

recitation suggests, an arrest warrant issued by a 

magistrate or judge does not, in itself, shelter an officer 

from liability for false arrest. See Sherwood v. Mulvihill, 113 

F.3d 396, 399 (3d Cir. 1997). Rather, a plaintiff may 

succeed in a S 1983 action for false arrest made pursuant 

to a warrant if the plaintiff shows, by a preponderance of 

the evidence: (1) that the police officer "knowingly and 

deliberately, or with a reckless disregard for the truth, 

made false statements or omissions that create a falsehood 

in applying for a warrant;" and (2) that "such statements or 

omissions are material, or necessary, to the finding of 

probable cause." Id.4 

A. Reckless Disregard for the Truth 

With these precepts in view, we must first consider

whether Wilson adduced sufficient evidence that a 

_________________________________________________________________ 

4. Wilson argues that because a jury could conclude that Russo lied, 

Russo loses the protection of qualified immunity regardless of the import 

of the lie. Adopting his argument would not affect the result in this case 

because we ultimately conclude that even if Russo had been perfectly 

straightforward in his warrant application, there would have been 

probable cause to arrest Wilson. 

 9 
reasonable jury could conclude that Russo made 

statements or omissions that he "knew [were] false, or 

would have known [were] false except for his reckless 

disregard for the truth." United States v. Leon, 468 U.S. 

897, 923 (1984); cf. Franks v. Delaware, 438 U.S. 154 

(1978). In Franks, the Court held that where a defendant 

showed by the preponderance of the evidence that a false 

statement necessary to the finding of probable cause was 

made "knowingly and intentionally, or with reckless

disregard for the truth," the constitution requires that any 

evidence derived from the exercise of that warrant had be 

excluded from a criminal trial. Id. at 155. But as the Court 

of Appeals for the District of Columbia Circuit has

lamented, "[u]nfortunately, the Supreme Court in Franks 

gave no guidance concerning what constitutes a reckless 

disregard for the truth in fourth amendment cases, except 

to state that `negligence or innocent mistake[is] 

insufficient.' " United States v. Davis , 617 F.2d 677, 694 

(D.C. Cir. 1979) (quoting Franks, 438 U.S. at 171). This 

case, with its hybrid allegation (Russo purportedly doctored 

some facts and failed to inform the judge of others) requires 

us to acknowledge that reckless disregard for the truth 

means different things when dealing with omissions and 

assertions, and to explain the different methodologies for 

dealing with each. 

1. Omissions 

All storytelling involves an element of selectivity. We 

cannot demand that police officers relate the entire history 

of events leading up to a warrant application with every 

potentially evocative detail that would interest a novelist or 

gossip (". . . the witness blushed when I mentioned the gun, 

and blinked six times while studying the photographic 

array. I noticed his hand crept up to his lips (which were 

chapped) . . ."). On the other hand, one of the reasons for 

requiring a neutral magistrate to evaluate probable cause is 

that an uninterested party is presumably better suited to 

review and evaluate the facts than an officer pursuing a 

lead. "The point of the Fourth Amendment, which often is 

not grasped by zealous officers, is not that it denies law 

enforcement the support of the usual inferences which 

 10 
reasonable men draw from evidence. Its protection consists 

in requiring that those inferences be drawn by a neutral 

and detached magistrate instead of being judged by the 

officer engaged in the often competitive enterprise of 

ferreting out crime." Johnson v. United States, 333 U.S. 10, 

13-14 (1948) (cited in Payton v. New York, 445 U.S. 573, 

586 n.24 (1980)). It follows that a police officer cannot 

make unilateral decisions about the materiality of 

information, or, after satisfying him- or herself that 

probable cause exists, merely inform the magistrate or 

judge of inculpatory evidence. 

Recognizing the tension between the extreme models that 

could arise if either of these competing concerns were taken 

alone--requiring a police officer to tell all, and permitting a 

police officer to independently determine materiality--we 

follow the common sense approach of the Court of Appeals 

for the Eighth Circuit and hold that omissions are made 

with reckless disregard if an officer withholds a fact in his 

ken that "[a]ny reasonable person would have known that 

this was the kind of thing the judge would wish to know." 

United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 

1993). In Jacobs, the court concluded that the officer acted 

with reckless disregard when he told the magistrate that a 

drug sniffing dog showed "interest" in the bag of the 

defendant but failed to inform the magistrate that it had 

not gone into "alert." Id. at 1234."Because of the highly 

relevant nature of the omitted information," the court held 

that "the omission occurred at least with reckless disregard 

of its effect upon the affidavit." Id. 

Russo alleges that Wilson made the following omissions 

in his warrant application: (1) he did not tell the judge that 

although Officer Lipp's investigative report stated that the 

robber was between 6'3" and 6'5", Wilson's driver's abstract 

indicated that he was 5'11"; (2) he did not tell the judge 

that Druce did not pick Wilson out of an array; (3) he did 

not tell the judge that in the photo array, Wilson looked 

ethnically different from the others; and (4) he did not 

mention that height and weight were not indicated on the 

photo array. 

Applying the test adopted above, we address these 

contentions in turn. Any reasonable person would know 

 11 
that the significant height differential, and the fact that an 

eyewitness-victim did not identify Wilson, were"the kind of 

thing[s] the judge would wish to know." Jacobs, 986 F.2d at 

1235. On the other hand, we do not believe that an officer 

can be expected to communicate the apparent ethnicity of 

the victim, or slight variations in appearance on the 

photographic line-up absent circumstances making these 

factors more important or prejudicial. Finally, the fact that 

height and weight were not listed on the photo array is so 

routine as to be unremarkable to a judge. Although these 

latter facts could be used for impeachment at trial, a police 

officer cannot be expected to present a judge with complete 

background. 

2. Assertions 

Unlike omissions, assertions can be made with reckless 

disregard for the truth even if they involve minor details-- 

recklessness is measured not by the relevance of the 

information, but the demonstration of willingness to 

affirmatively distort truth. In applying the reckless 

disregard test to assertions, we have borrowed from the free 

speech arena and equated reckless disregard for the truth 

with a "high degree of awareness of [the statements'] 

probable falsity." Lippay v. Christos, 996 F.2d 1490, 1501 

(3d Cir. 1993) (quoting Garrison v. Louisiana , 379 U.S. 64, 

74 (1964)); see also United States v. Clapp, 46 F.3d 795, 

800 (8th Cir. 1995) (reckless disregard for the truth is 

exhibited when expressing that which was not "believed or 

appropriately accepted" as true). 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." Clapp, 46 F.3d at 

801 n.6. 

Applying these tests to this case, Russo had reasons to 

"doubt the accuracy" of his intimation that he had 

personally investigated the entire case and interviewed the 

witnesses after the robbery. More importantly, a jury could 

conclude that Russo "must have entertained serious doubts 

about the truth of his statement" that the dental worker 

had seen Wilson around 3:00, instead of around 3:30. 

 12 
Because he told the judge about DaVila's identification, 

Russo must have learned of DaVila's statement from 

somewhere; a jury could infer that he learned of it from the 

transcript of DaVila's statement or a complete report, either 

of which would include her statement that she saw Wilson 

about a half an hour before the police arrived, which would 

place her sighting at about 3:30. If Russo knew of the time 

difference, he had "obvious reasons to doubt" his assertion 

to the judge that a witness saw Wilson around 3:00.

As to the other information from the other officers' 

reports, Wilson did not adduce any evidence that Russo 

would have examined these reports as a matter of course or 

policy, or any evidence from which a jury could infer 

knowledge of their content. Moreover, there is no evidence 

that Russo knew that the array was developed from 

Wilson's photo alone. Therefore, a jury could not conclude 

that his representation that the array was made"as a 

result of the physical descriptions" was made with reckless 

disregard of the truth.5 

B. Materiality 

Since there was sufficient evidence of omissions and 

assertions made knowingly, or with reckless disregard for 

the truth, we turn to the next step of the reconstructive 

surgery required by our jurisprudence, and assess whether 

the statements and omissions made with reckless disregard 

of the truth were "material, or necessary, to thefinding of 

probable cause." Sherwood, 113 F.3d at 399.6 To determine 

_________________________________________________________________ 

5. Wilson also attempts to inject a due process argument into what is 

primarily a fourth amendment claim, arguing that the officers were 

negligent in their investigation. However, negligence by public officials 

is 

not actionable as a due process deprivation of a civil right. See Orsatti 

v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995) ("[T]he issue 

is not whether the information on which police officers base their request 

for an arrest warrant resulted from a professionally executed 

investigation; rather, the issue is whether that information would 

warrant a reasonable person to believe that an offense has been or is 

being committed by the person to be arrested."); see also Daniels v. 

Williams, 474 U.S. 327 (1986); Colburn v. Upper Darby Township, 946 

F.2d 1017 (3d Cir. 1991)). 

6. Wilson submits that even if the statements are not material, he should 

at least get nominal damages for Russo's failure to provide the judge 

 13 
the materiality of the misstatements and omissions, we 

excise the offending inaccuracies and insert the facts 

recklessly omitted, and then determine whether or not the 

"corrected" warrant affidavit would establish probable 

cause. See Sherwood, 113 F.3d at 400. If it does, the grant 

of summary judgment should be affirmed, for even if there 

had not been omissions and misrepresentations in Russo's 

presentation to Judge Dilts, Wilson would have been

arrested. 

Probable cause exists if there is a "fair probability" that 

the person committed the crime at issue. See Sherwood, 

113 F.3d at 401. "Probable cause to arrest exists when the 

facts and circumstances within the arresting officer's 

knowledge are sufficient in themselves to warrant a

reasonable person to believe that an offense has been or is 

being committed by the person to be arrested." Orsatti, 71 

F.3d at 483. A police officer may be liable for civil damages 

for an arrest if "no reasonable competent officer" would 

conclude that probable cause exists. Malley v. Briggs, 475 

U.S. 335, 341 (1986). 

_________________________________________________________________ 

with exculpatory information. He relies on the Supreme Court's decision 

in Carey v. Piphus, 435 U.S. 247, 266 (1978), which stated that a 

violation of procedural due process was actionable without a need to 

prove actual injury, or actual damages. See also Smith v. Chicago, 913 

F.2d 469, 472-73 (7th Cir. 1990). In Smith, the court held that actual 

damages for improvident police work leading to arrest was inappropriate 

because probable cause existed, so that no actual harm flowed from the 

recklessness, but allowed the award of nominal damages of $1 for the 

due process violation. See also Sutton v. Board of Education, 958 F.2d 

1339, 1352 (6th Cir. 1992) ("The denial of procedural due process is 

actionable for nominal damages without proof of actual injury."). On the 

strength of these cases, Wilson argues that Russo's omissions and 

fabrications are a harm independent of the injury of arrest. Although we 

find the argument interesting, we would not address it today even if we 

found its requirements met, because it was not raised in the complaint, 

at the district court level, or even in the opening briefs on appeal. 

Harris 

v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994) (issues raised 

for 

the first time on appeal will not be considered). It was articulated for 

the 

first time in supplemental letter memoranda sent to the court less than 

a month before oral argument. 

 14 
The defendants maintain that a positive identification by 

a victim is sufficient by itself to establish probable cause 

that the identified party was the offender. While we agree 

that a positive identification by a victim witness, without 

more, would usually be sufficient to establish probable 

cause, this qualified precept cannot be rendered absolute. 

Independent 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. Each case must

therefore be examined on its facts. 

For example, if two identifying witnesses had told the 

officer that the robber was 7', and the officer knew that the 

person in the photograph was 5', the positive identification 

would not be enough. Likewise, an otherwise credible victim 

identification would not provide probable cause if police 

officers contemporaneously possessed reliable DNA 

evidence which determined conclusively that the accused 

could not have committed the crime. Or, if Druce had, 

equally firmly, picked another person from the photo array, 

Braverman's identification might not have been sufficient 

for Russo to conclude that Wilson "probably" committed the 

crime. "An officer contemplating an arrest is not free to 

disregard plainly exculpatory evidence, even if substantial 

inculpatory evidence (standing by itself) suggests that 

probable cause exists." Kuehl v. Burtis, 173 F.3d 646, 650 

(8th Cir. 1999).7 

_________________________________________________________________ 

7. We recognize that the Seventh Circuit has used language suggesting 

that exculpatory evidence or evidence of unreliability is totally 

irrelevant. 

See Tangwall v. Stuckey, 135 F.3d 510 (7th Cir. 1998). In Tangwall, a 

woman who had been raped called the police because she said she was 

convinced that a man that she had been observing for some time in the 

restaurant in which she worked was her attacker. She had previously 

described her attacker differently; the man in the restaurant was slightly 

older, heavier, taller, and had a different color hair and eyes than her 

original description. There was no corroborating evidence or independent 

exculpatory evidence. The court concluded that the officers had qualified 

immunity in that case, stating along the way that"the alleged 

discrepancies between Smith's original description of her attacker and 

Tangwall's appearance on the evening of his arrest do not affect our 

inquiry into whether Detective Stuckey's actions were objectively 

 15 
The cases that the defendants cite for their argument fall 

into two basic camps: (1) those in which there was no 

exculpatory evidence or evidence of witness unreliability, 

such as United States v. Harris, 956 F.2d 177, 180 (8th Cir. 

1992); and (2) those in which the court concluded that a 

positive identification was not fatally undermined by 

unreliability or exculpatory evidence, such as Sharrar v. 

Felsing, 128 F.3d 810 (3d Cir. 1993) and Lallemand v. 

University of Rhode Island, 9 F.3d 214 (1st Cir. 1993). The 

first class of cases is inapposite here. Looking at the second 

class of cases, we find that courts have consistently 

considered the context of an identification, and have not 

stated that police can rely on any witness accusation, 

however unreliable or unbelievable. 

For example, in Sharrar we affirmed the principle that 

"[w]hen a police officer has received a reliable identification 

by a victim of his or her attacker, the police have probable 

cause." 128 F.3d at 818 (emphasis added). We concluded in 

that case that when the witness initially gave one name, 

but then identified her husband as her attacker, it was 

_________________________________________________________________ 

reasonable in light of clearly established law." Id. at 517 (emphasis 

added). Although we would have no reason to take issue with the court's 

ultimate disposal of that case on its facts, especially given the 

relatively 

minor nature of the discrepancies, we find this statement overbroad, in 

that it appears to treat identifications as unimpeachable, and conflicts 

not only with the cases and language cited in the same section of the 

opinion, see id. at 516 (citing United States v. Decoteau, 932 F.2d 1205, 

1207 (7th Cir. 1991) for the proposition that "once a putative victim . . 

. 

has positively identified her attacker to the police and they have no 

reason to disbelieve her, the officers `need not take any additional steps 

to corroborate the information regarding the crime before taking 

action.' ") (emphasis altered)), but with suggestions in the case itself, 

in 

which the court went out of its way to discuss reasons to discount 

discrepancies in part because of the special circumstance of rape. See id. 

at n.11. Therefore, we are unwilling to follow the reading of that case 

urged by the defendants. We are also skeptical that the Seventh Circuit 

would adopt such a sweeping interpretation and consider there to be 

probable cause to arrest someone identified as the assailant if the police 

officers were aware that the victim, like the boy who cried wolf, had 

previously firmly identified several different people as her attacker and 

repeatedly called the police demanding that they be arrested. 

 16 
reasonable for the officer to "assess Gannon's demeanor, 

find her story credible, and rely on her subsequent

identification of her husband as the attacker" in part 

because it was a domestic violence case. Id. Likewise, in 

Lallemand, the First Circuit concluded that discrepancies in 

a victim's description were "trivial, given their nature" and 

in light of the positive identification, clearly implying that 

non-trivial discrepancies, or external evidence powerfully 

undermining the reliability of the witness's identification, 

might translate into a finding that there was no probable 

cause. 9 F.3d at 217.8 We reject the rule suggested by the 

defendants and engage in the routine probable cause

analysis, weighing the inculpatory evidence against any 

exculpatory evidence available to the officer. 

The strongest inculpatory evidence is clearly the positive 

identification. Braverman had considerable opportunity to 

view the robber at the scene of the crime, and she exhibited 

a high level of certainty. There were three days between the 

crime and identification, so while it was not an entirely 

fresh identification, not so much time had passed as to call 

into question her recollection. Granted, Braverman's 

testimony should be viewed with some skepticism because 

her identification of Wilson was inherently incompatible 

with her description of the robber--according to the 

information available to Russo (Lipp's report), Braverman 

(and/or her coworker) originally described the robber as 

between 6'3" and 6'5". Although she did not know it, in 

identifying Wilson she identified someone much shorter. 

Both of these identifications cannot be correct. However, 

_________________________________________________________________ 

8. As in this case, Lallemand involved, among other things, a discrepancy 

in height. The victim initially described her attacker as 6', while 

Lallemand is 6'7". But later the victim told the police that her attacker 

was "much taller" than a police officer who was over 6', 9 F.3d at 215 

n.1, and no other witness (like Druce) had indicated his height, and the 

court acknowledged no independent exculpatory evidence. We do not 

disagree with the result, but think it was a simpler case. More 

importantly, we note that it did not apply a per se rule; on the contrary, 

it carefully examined the facts available to the officer that might be 

deemed to undercut the victim's credibility, such as her intoxication, and 

concluded that her identification was still reliable and probable cause 

existed even when these facts were taken into account. 

 17 
this indication of unreliability does not, from the vantage 

point of the arresting officer, fatally undermine the forceful 

positive identification. Added to this identification is the 

fact that DaVila testified that she saw Wilson in the vicinity 

near the time of the theft. 

On the other hand, there are three exculpatory facts that 

Russo should have mentioned: (1) the robber was originally 

identified as someone 6'3" to 6'5", while Wilson is four to 

seven inches shorter;9 (2) one of the two victim-witness with 

ample opportunity to view the robber failed to identify 

Wilson when shown a photo array; and (3) DaVila saw

Wilson out in the shopping center when he was supposedly 

in the flower shop. But these exculpatory facts, when 

weighed against the inculpatory facts, are not strong 

enough to undermine a finding of probable cause. Thus, we 

conclude that the District Court correctly found that no 

reasonable jury could find facts that would lead to the 

conclusion that Wilson's "corrected" warrant lacked

probable cause. Therefore, we do not have to reach the 

second prong of the qualified immunity investigation, that 

is, whether the right was clearly established. 

In sum, we conclude that the District Court correctly 

concluded that Russo did not violate Wilson's constitutional 

right to be free of unlawful arrest. Therefore, we affirm the 

grant of summary judgment on qualified immunity 

grounds. 

III. Continued Incarceration 

Wilson contends that even if he was properly arrested in 

the first instance, he was kept in jail in violation of his 

rights because Russo learned of exculpatory facts after the 

arrest which should have motivated him to try to release 

Wilson. On February 7, Russo interviewed Wilson's friend 

_________________________________________________________________ 

9. The dissent notes that both Braverman and Druce described the 

robber in terms of his notable height, citing to Druce's several 

statements about how "very tall" the intruder was. However, while the 

report available to Russo stated that the robber wasbetween 6'3" and 

6'5", there is no record evidence from which a jury could concludethat 

Braverman's and Druce's more detailed impressions were passed on to 

Russo. 

 18 
George Richardson, who told Russo that Wilson had spent 

February 3 in his company. He told him that Wilson wore 

blue jeans, tan work boots, a beige sweatshirt and a brown 

jacket that day. He said that they had gone to the Towne 

Center, where Wilson went to get a lemonade at the pizza 

parlor while Richardson went to the bank. As evidence of 

his veracity, Richardson gave Russo a bank slip with 3:38 

stamped on it. Russo testified that he visited the bank and 

looked at the films from the bank's surveillance camera to 

look for Richardson, but that he could not recall what he 

saw and could not recall if the employees remembered 

Richardson.10 

Wilson contends that Russo's post-arrest interview with 

Richardson provided exculpatory information that 

dissipated probable cause, and that Russo had a 

constitutional duty to inform the prosecutor of the interview 

and attempt to get Wilson released. The law in this area is 

not entirely settled. Compare Brady v. Dill, 187 F.3d 104, 

112 (1st Cir. 1999) (concluding that police officers generally 

have no duty to try to release suspects when exculpatory 

information comes into their possession after a lawful 

arrest), with id. at 117-125 (Pollak, J., concurring) 

(proposing a rule by which "[a]n affirmative duty to release 

arises . . . if an arresting or custodial officer ascertains 

beyond a reasonable doubt that the suspicion (probable 

cause) which forms the basis for the privilege of arrest is 

unfounded."). See also Sanders v. English, 950 F.2d 1152, 

1162 (5th Cir. 1992) ("[F]ailure to disclose . . . undeniably 

credible and patently exculpatory evidence to the 

prosecuting attorney's office plainly exposes[defendant 

police officer] to liability under S 1983."); BeVier v. Hucal, 

806 F.2d 123, 128 (7th Cir. 1986) ("The continuation of 

even a lawful arrest violates the Fourth Amendment when 

the police discover additional facts dissipating their earlier 

probable cause."). 

We do not, today, need to decide these difficult issues. 

_________________________________________________________________ 

10. Russo also eventually interviewed the woman who had been in the 

flower shop on a bridal order. When shown the same photo array that 

Russo showed Braverman and Druce, she identified Wilson as the man 

who had been in the shop with her. 

 19 
Regardless of the existence and scope of an officer's duty to 

seek to release a suspect when probable cause no longer 

exists, or the level of knowledge that he or she must have 

in order to trigger that duty, the interview with Richardson 

clearly did not dispel the earlier probable cause. 11 A friend 

of Wilson gave Wilson a partial alibi, and his description of 

Wilson's clothing did not match the victims' descriptions, 

but he placed Wilson in the vicinity at the time of the 

robbery, and nothing he said overwhelmed the fact of 

Braverman's positive identification. In short, no reasonable 

jury could conclude that this evidence dispelled probable 

cause. 

 For the foregoing reasons, the grant of summary 

judgment will be affirmed as to the federal claims. The case 

will be remanded to the District Court for consideration of 

the state claims. 

_________________________________________________________________ 

11. We also reject Wilson's suggestion that he has a due process claim 

because Russo should have done a better job of post-arrest investigation. 

As the Supreme Court stated in Baker v. McCollan , 443 U.S. 137, 145- 

146 (1979): 

 [W]e do not think a sheriff executing an arrest warrant is 

required 

 by the Constitution to investigate independently every claim of 

 innocence, whether the claim is based on mistaken identity or a 

 defense such as lack of requisite intent. Nor is the official 

charged 

 with maintaining custody of the accused named in the warrant 

 required by the Constitution to perform an error-free 

investigation of 

 such a claim. 

 20 
GARTH, Circuit Judge, concurring: 

I agree that the District Court's decision granting

summary judgment to the defendants must be affirmed.1 I 

write separately, however, because I take issue with the 

majority opinion's equivocal "probable cause" analysis as it 

relates to eyewitness identification. See Majority Op., Part 

II-B. 

Despite recognizing the argument "that a positive 

identification by a victim is sufficient by itself to establish 

probable cause that the identified party was the offender," 

id. at 15, the majority opinion insists upon adopting a 

"weighing" principle that forces us to weigh"exculpatory" 

facts against "inculpatory" facts. See id. at 17-18. By doing 

so, the majority has misinterpreted and placed much

emphasis on the reliability factor that the Supreme Court 

has held to be a necessary part of our Fourth Amendment 

analysis, see Illinois v. Gates, 462 U.S. 213, 230 (1983). 

In probable cause analysis, it is the reliability of the 

witness (or victim) who has provided an identification of the 

assailant that is the focal point of the inquiry. It is not the 

reliability of the evidence provided in tandem with that 

individual's identification, which may be inconsistent with 

such an identification. As a result, the majority confuses a 

lack of reliability in an eyewitness with evidence that, at 

most, tends to exculpate the identified individual of 

wrongdoing and therefore simply is inconsistent with the 

victim's identification. Inconsistent or contradictory 

evidence may cut against a putative defendant's guilt at 

trial, but it cannot render invalid -- i.e., eliminate the 

probable cause necessary to obtain an arrest warrant-- a 

positive identification by an eyewitness who either a police 

officer or magistrate deemed to be reliable. 

Reliability in this context obviously means an eyewitness 

who is neither mentally impaired or delusional. See Jones 

v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988) 

(stating that as long as the identifying victim eyewitness is 

_________________________________________________________________ 

1. I further agree that because the District Court failed to address 

Wilson's state law claims, a remand is appropriate for this limited 

purpose. 

 21 
"lucid," probable cause exists to arrest the identified 

individual). For instance, if the victim eyewitness were to 

show signs of insanity or other forms of mental instability, 

the reliability of that eyewitness would, in my view, 

justifiably be called into question. Statements during the 

identification process such as "That's the assailant! I'd 

know Abe Lincoln anywhere!" or "I believe that this is the 

thief, because he had three heads!" would signal such 

reliability concerns. Thus, it is the witness's reliability that 

is at the core of our probable cause determination, not the 

reliability of the individual's identification, as required by 

the majority opinion's formula, which weighs exculpatory 

against inculpatory evidence. Majority Op., at 17-18. 

Accordingly, I part company with the majority opinion at 

the point where the majority seeks to distort the probable 

cause analysis to the point of virtually requiring trial-type 

proof at the very threshold stage of criminal investigation.2 

My thesis is simple and in accord with the prevailing 

jurisprudence. Once law enforcement officers have obtained 

a positive identification from a reliable witness, then, 

without more, probable cause exists to justify the arrest of 

the identified individual. As the Seventh Circuit has stated, 

"once a putative victim . . . has positively identified her 

attacker to the police and they have no reason to disbelieve 

her, the officers `need not take any additional steps to 

corroborate the information regarding the crime before 

taking action.' " Tangwall v. Stuckey, 135 F.3d 510, 516 

(7th Cir. 1988) (quoting United States v. Decoteau, 932 F.2d 

1205, 1207 (7th Cir. 1991)); see also Jones, 856 F.2d at 

994. 

Decisions from both this circuit and our sister circuits 

validate my interpretation of this interplay between the 

Fourth Amendment's probable cause requirement and 

victim eyewitness identifications, especially as they impact 

on the facts presented in this case. See Sharrar v. Felsing, 

128 F.3d 810 (3d Cir. 1997); Tangwell v. Stuckey , 135 F.3d 

510 (3d Cir. 1998); Lallemand v. University of Rhode Island, 

_________________________________________________________________ 

2. As the Supreme Court has stated, the standard for "probable cause 

does not demand the certainty we associate with formal trials." Illinois 

v. 

Gates, 462 U.S. 213, 246 (1983). 

 22 
9 F.3d 214 (3d Cir. 1993); Greene v. City of Philadelphia, 

No. CIV. A. 97-4264, 1998 WL 254062 (E.D. Pa. May 8, 

1998). 

Specifically, in Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 

1997), a woman telephoned 911 to report that she had 

been assaulted. See id. at 814. When the 911 operator 

asked the woman to identify the individual who had 

committed the assault, she immediately responded with the 

name Robert Carroll. See id. Once the police arrived, 

however, the woman had altered her story, and now alleged 

that her husband -- David Brigden -- was the assailant. 

See id. The police arrested Brigden, but after all charges 

against him had been dismissed, Bridgen brought a section 

1983 action against the police, alleging that they lacked the 

probable cause to arrest him. See id. at 816-17. In

particular, Brigden argued that his wife's earlier 

identification of Carroll as her attacker so impaired her 

reliability as to abrogate any finding of probable cause. See 

id. at 818. 

We soundly rejected this argument, holding that law

enforcement officers (or, presumably, a magistrate) need 

not carefully scrutinize an identification or other

information provided by a victim of an alleged offense as 

they would with other informants. See id. at 818 (quoting 

Easton v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir. 

1985)). Most importantly, however, the Sharrar panel held 

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. (citing Torchinsky v. Siwinski, 942 

F.2d 257, 262 (4th Cir. 1991); Grimm v. Churchill, 932 F.2d 

674, 675 (7th Cir. 1991)); see also Greene v. City of 

Philadelphia, No. CIV. A. 97-4264, 1998 WL 254062, at *7 

(E.D. Pa. May 8, 1998) ("The principle that probable cause 

may be based on a single and reasonably reliable 

eyewitness identification, even though the identification 

may be tarnished by discrepancies in the witnesses'

description of the perpetrator, is well-established."). By 

affirming the district court's finding of probable cause to 

arrest Bridgen, the panel in Sharrar implicitly stated that a 

victim's proffer of two different identifications for his or her 

attacker by name does not undermine the eyewitness's 

 23 
reliability enough to eliminate probable cause to arrest. Any 

reading of the Sharrar opinion has to lead to the conclusion 

that it is the reliability of the eyewitness that is relevant 

and essential to the probable cause analysis, not the 

weighing process through which the majority attempts to 

modify our jurisprudence.3 

Sharrar's application to the present matter is striking. 

Within a matter of hours, the alleged victim in Sharrar 

provided the police with two different names for her 

assailant. Even in the face of this blatant inconsistency, the 

Sharrar court -- our court -- held that the purported 

victim's positive identification was sufficient to give rise to 

probable cause. 

To the contrary, the inconsistencies presented here are 

much less extreme. The only evidence that arguably can be 

considered inconsistent with Braverman's photo 

identification of Wilson was her earlier description of the 

assailant's height and Druce's inability to identify the 

assailant when presented with the same photo array.

Merely providing a height range that is inconsistent with 

that of the individual identified does much less to question 

an eyewitness' reliability than does providing two different 

names of two different individuals within a span of hours. 

As such, any reading of our decision in Sharrar -- to which 

this panel is, of course, bound -- must lead to the

conclusion that Braverman's identification of Wilson, 

without more, was sufficient to give rise to probable cause. 

Even more persuasive, and nearly identical on a factual 

level, however, is Lallemand v. University of Rhode Island, 

9 F.3d 214 (1st Cir. 1993). In Lallemand, a university 

student alleged that she had been raped, and during a 

medical exam, stated that her assailant was a fraternity 

pledge named "Dan," who was around six feet tall with 

blond hair. See id. at 214-15. During the ensuing police 

_________________________________________________________________ 

3. The majority cites the Eighth Circuit's opinion in Kuehl v. Burtis, 173 

F.3d 646 (8th Cir. 1999), as support for this weighing process. The facts 

in Kuehl, however, do not concern eyewitness identification, and as such, 

render Kuehl completely inapplicable to the issue of the sufficiency of an 

eyewitness identification -- the probable cause determination presented 

in the instant case. 

 24 
investigation, law enforcement officers showed the student 

photographs of each of the pledges from the fraternity at 

which the student claimed to have been assaulted. See id. 

at 215. Faced with these photos, the student "positively and 

without hesitation" identified, as her assailant, an 

individual named "David," who stood 6'7", and did not have 

blond hair. Id. at 215 & n.1. Notwithstanding these

discrepancies, the First Circuit held that probable cause 

existed for "David's" arrest. See id. at 216-17. Indeed, the 

Lallemand court went so far as to state that"[t]he 

discrepancies concerning the assailant's first name, hair 

style, dormitory and height are trivial, given their nature 

and the positive identification." Id. at 217 (emphasis 

added); see also Tangwall, 135 F.3d at 516 ("The 

identification itself establishes probable cause to make an 

arrest, even where other witnesses' descriptions of the 

alleged perpetrator differ from the physical appearance of 

the individual so identified."). 

Given the factual similarities presented between 

Lallemand and the instant matter, and our own court's 

acceptance -- in Sharrar -- of the constitutional premise 

underlying the First Circuit's persuasive holding in 

Lallemand, the equivocal and therefore improper and

erroneous nature of the majority's probable cause analysis 

becomes clear. 

In all other respects, however, I concur in the majority's 

analysis and its ultimate result. 

 25 
POLLAK, District Judge, concurring in part and dissenting in 

part 

I agree with virtually all of the opinion of the court. With 

respect to the legal standards announced by the court, I 

join the court's opinion without reservation. Where I part 

company with the opinion is in the court's application of its 

correct summary judgment standard to the facts in this 

case. In my view, the question whether the " `corrected' 

warrant" application (i.e., the warrant application as it 

would have been, had it been amended to cure officer 

Russo's omissions and misstatement) established probable 

cause for Wilson's arrest is one that should be reserved for 

the finder of fact.1 

A. 

In a portion of the opinion of the court with which I do 

not take issue, the court determines that "[a]ny reasonable 

person would know that the significant height differential, 

and the fact that an eye-witness did not identify Wilson, 

were the kind of things the judge would wish to know." 

Supra p. 11-12 (quotation omitted). The court is surely 

correct in this conclusion. Like Braverman, Druce had 

ample opportunity to view the robber in the store, so his 

failure to identify the robber in the lineup is undoubtedly a 

significant fact. Braverman's and Druce's descriptions of 

the robber's height are at least as significant for these 

purposes. Braverman described the robber as "very tall" 

and estimated his height as between 6'2" and 6'4". Druce 

also described the robber as "very tall," guessing his height 

to be "about 6'5" tall, maybe a little bit taller." Indeed, the 

statements of Braverman and Druce reveal that they were 

very attentive to the robber's height. Druce, for instance, 

stated that while the robber was not someone he had seen 

before, "it would be someone I'd remember because of the 

height of him, he's very tall that's the first thing I said to 

Renee, `He's tall, he's very tall.' " 

_________________________________________________________________ 

1. I agree with the court that summary judgment was properly granted 

in favor of officer Woroniecki for the reasons discussed by the court, 

supra p. 3-4 note 1. 

 26 
For purposes of identification of a suspect, the 

significance of the difference in height between Wilson and 

the man described by Druce and Braverman may be even 

greater than is suggested by the court's statement that 

Wilson was "four to seven inches shorter" than the robber 

described in the police report. Supra p. 18. Both Druce and 

Braverman were quite clear that they viewed the robber as 

an exceptionally tall man. And while estimates of height 

may well be off by a few inches in either direction, it would 

be remarkable if someone who had had nearly an hour to 

observe a person of average height--as Wilson is--would 

describe that person as being exceptionally tall. And, of 

course, it would be that much more remarkable if two such 

observers made the same mistake. Thus, the height 

discrepancy was clearly a fact that a reasonable officer 

would expect a judge to want to know. It follows that 

knowingly omitting such information in the context of a 

warrant application would amount to reckless disregard for 

the truth, as the court has concluded. Similarly, the fact 

that Druce failed to identify Wilson was information that a 

judicial officer would be expected to want to know. And, 

finally, I agree with the court that Russo's statement to the 

judge about the timing of DaVila's seeing Wilson in the 

parking lot constituted reckless disregard for the truth. 

The court follows these conclusions with a discussion of 

the materiality of the omissions and misstatement, 

concluding that the omissions and misstatement were not 

material in the face of Braverman's positive identification. 

Indeed, the court concludes that "no reasonable jury could 

find facts that would lead to the conclusion that Wilson's 

`corrected' warrant lacked probable cause." Supra p. 18. 

That statement contains an implicit recognition of the 

fact that, in the Third Circuit, it is well established that 

"the existence of probable cause in a section 1983 action is 

a question of fact." Sherwood v. Mulvihill , 113 F.3d 396, 

401 (3d Cir. 1997); see also Groman v. Township of 

Manalapan, 47 F.3d 628, 635 (3d Cir. 1995) (reversing 

summary judgment as to issue of probable cause); Deary v. 

Three Un-Named Police Officers, 746 F.2d 185 (3d Cir. 

1984) (same); Patzig v. O'Neill, 577 F.2d 841 (1978) (holding 

that the existence of probable cause in civil cases is "a 

question for the jury"). 

 27 
Judge Garth, in his concurrence, argues that a positive 

identification by an eyewitness deemed reliable by the 

police or the judicial officer issuing the warrant is 

conclusive--as a matter of law--on the question of probable 

cause without regard for any extrinsic evidence that may 

cast doubt on the accuracy of that identification. The court 

rejects Judge Garth's submission. While it is undeniable 

that a positive identification is very strong evidence in 

support of a finding of probable cause--a finding that, as 

Judge Garth correctly notes, is properly made on far less 

evidence than that needed to establish guilt--the court's 

rejection of a per se rule is surely correct. For, as the 

court's hypothetical illustrations demonstrate, there may 

well be cases in which the exculpatory evidence is so 

overwhelming as to outweigh the inculpatory effect of a 

positive identification, even for purposes of a showing of 

probable cause. 

It is not my view that the exculpatory evidence is so 

strong in this case as to require, as a matter of law, the 

conclusion that a judicial officer to whom the"corrected" 

warrant application was submitted could not have found 

probable cause. It is my view, however, that the present 

case is within the class of cases--a class that is likely to be 

a limited one where a positive identification has been 

obtained--in which a factfinder might reasonably conclude 

that a judicial officer assessing the "corrected" warrant 

application would not have found probable cause. I say this 

for the following reasons. 

The court acknowledges that Braverman's identification 

"should be viewed with some skepticism because her 

identification of Wilson was inherently incompatible with 

her description of the robber." Supra p. 17. While the court 

does not undertake to quantify the level of skepticism the 

court would apply, it appears that the level is not very high, 

for Braverman's weakened identification, coupled with 

DaVila's observation of Wilson in the vicinity, is still viewed 

by the court as sufficient to support the conclusion that a 

reasonable finder of fact would be required to conclude that 

a judicial officer would have found probable cause,

notwithstanding other strongly exculpatory evidence: 

namely, Druce's description of Wilson and his failure to 

 28 
identify Wilson as the robber, and the fact that Wilson was 

seen in the parking lot at a time when the robber was in 

the flower shop. By contrast, it seems to me well within the 

range of plausibility that a judicial officer assessing the 

"corrected" warrant application, (1) might have viewed 

Braverman's identification with very considerable 

skepticism; (2) might have largely or entirely discounted 

DaVila's statement, given that the time at which DaVila 

said she saw Wilson in the parking lot was the very time at 

which the robber was in Braverman's flower shop; and (3) 

might have credited the other exculpatory evidence quite 

highly. If so, the judicial officer might reasonably have 

concluded that probable cause had not been established. 

"But the weight that a neutral magistrate would likely have 

given such information is a question for the finder of fact." 

Velardi v. Walsh, 40 F.3d 569 (2d Cir. 1994). Accordingly, 

so it seems to me, the District Court's grant of summary 

judgment on the question of probable cause was 

inappropriate. 

That it would be reasonable to conclude that Russo had 

not established probable cause is strongly supported by the 

court's conclusion that any reasonable person would view 

the omitted information as information that a judicial 

officer would want to know--a conclusion that, as I have 

discussed, is quite proper given the significance of that 

information in the context of the present case. A judicial 

officer would be expected to want to know this information 

largely because such information at least had the potential 

to make a difference in the determination of the existence 

of probable cause. It is thus puzzling that the court appears 

to conclude both (1) that it would be unreasonable to keep 

the information from the judge, which would seem to

suggest that it could make a difference to a probable cause 

inquiry, and (2) that it would be unreasonable to conclude 

that the information would have made a difference to 

probable cause. It appears that the court views the

information as potentially significant in thefirst context, 

but necessarily insignificant in the second. For the reasons 

discussed above, I agree with the court that the information 

omitted and misstated by Russo was of substantial 

significance. And, for essentially the same reasons, I also 

believe that a factfinder could find that, had it been 

 29 
supplied, the omitted and misstated information would 

have had a determinative effect on the issue of probable 

cause, even in the face of a positive identification.2 

B. 

In the previous section, I stated my agreement with the 

court that Russo's misstatement and omissions were in 

reckless disregard for the truth. But I have concluded, in 

disagreement with the court, that a factfinder could find 

that, but for the misstatement and omissions, a judicial 

officer would not have issued an arrest warrant, from which 

it follows that Russo's conduct could be found by a

factfinder to have deprived Wilson of a constitutional right. 

The right not to be arrested on the basis of a warrant 

obtained on the basis of a law enforcement officer's 

representations or omissions made in reckless disregard of 

the truth is a clearly established right. See Lippay v. 

Christos, 996 F.2d 1490, 1504 (3d Cir. 1993) ("If a police 

officer submits an affidavit containing statements he knows 

to be false or would know are false if he had not recklessly 

disregarded the truth, the officer obviously failed to observe 

a right that was clearly established. Thus, he is not entitled 

to qualified immunity."). 

_________________________________________________________________ 

2. A fortiori, I also disagree with the court's conclusion, in section III 

of 

the court's opinion, that no reasonable factfinder could have found that 

the additional exculpatory evidence gathered by Russo subsequent to 

Wilson's arrest undermined probable cause. (As the court's opinion 

notes, see supra p. 19, I have had occasion, in Brady v. Dill, 187 F.3d 

104, 123 (1st Cir. 1999) (concurring), to address the further question, 

which the court in the present case identifies but does not undertake to 

resolve, whether an officer who acquires evidence which incontestably 

establishes the innocence of a person he holds in custody is 

constitutionally obligated to release that person without seeking judicial 

intervention. In Brady, I was sitting as a member of a First Circuit 

panel, 

and my affirmative answer to the question was rejected by the panel 

majority. In my view, application to the present record of either the 

standard I endorsed in Brady, or that adopted by the Brady majority, 

would preclude recovery on this basis. Accordingly, I do not differ with 

the ultimate conclusion reached by the court; that is, that summary 

judgment is appropriately affirmed with respect to plaintiff 's claim 

discussed in section III of the court's opinion.) 

 30 
Accordingly, I would reverse the entry of summary 

judgment in favor of Russo, and remand the case for

further proceedings. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 31