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. e du/thir dc ir c uit_2000/105Filed 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 defendan t, Franklin Township Police Department who, singly or in combination participated in the unlawful search, fa lse arrest and false imprisonment of the plaintiff; 16- 30, represent 1 or more employees or agents of said defendant who, singly or in combination participate d in the supervision and training of the defendants, Rus so, 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, participate d in the supervision and training of said individual def endants.

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 CooperArgued: 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 j ail for an armed robbery he did not commit. As plaintif f 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 right s to be free from arrest and detention without probable cause. T he crux of his claim is that the arresting officer, defenda nt Darrin J.

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* Honorable Louis H. Pollak, United States District Court Judge for the Eastern District of Pennsylvania, sitting by design ation.

2Russo, 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 opportun ity to view the robber, had stated that the assailant was between 6'3" and 6'5". Russo did not, however, tell him tha t Wilson's driving abstract showed him to be 5'11". N or did Russo tell the judge that one of these eyewitnesses did not identify Wilson when shown a photographic array. Wh at he did tell him was that the other victim positively i dentified Wilson, and that someone else had seen Wilson in th e vicinity near the time of the robbery. Wilson urges us to decide that Russo omitted the exculpatory facts wit h "reckless disregard for the truth" and that the war rant 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 an d omitted facts with reckless disregard for the truth, we hol d that: (1) omissions are made with reckless disregard for the truth when an officer recklessly omits facts that any rea sonable 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 tr uth of what he or she is asserting. Viewing the facts in t he light most favorable to the plaintiff, we conclude that R usso 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 establishe d 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 affi rm the grant of summary judgment.1

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1. Wilson also appeals the District Court's grant o f summary judgment to the officer who initiated the investigation, Clemen t Woroniecki, who, he alleges, violated his rights by inadequate and slop py investigation. However, there is insufficient evidence in the reco rd 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 vio late the due process

3I. Facts and Procedural History

A. The Robbery and Preliminary Investigation

On February 3, 1995, Officers Lipp and Woroniecki o f the Franklin Township (New Jersey) Police Department responded to a call reporting an armed robbery at t he Great Expressions Floral Shop in the Franklin Towne Cente r. Detective Woroniecki interviewed Renee Braverman, t he owner of the shop, and Graham Druce, an employee in the shop. They both said that the robber was in the sto re from a little before 3:00 pm until approximately 3:50 pm . When the robber entered the shop, Braverman was discussi ng 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. Th e bridal order customer left around 3:50, and the robber bro ught 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 rig ht shoulder and told Braverman to empty the register q uickly and put the money in a brown paper bag along with t he 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 h air, a waist-length light denim jacket, cream colored sw eater, and blue denim jeans. Druce, a "five-five,five-six" white man, described the robber as a "very tall male, lig ht black in color, his middle 20s, about 25, about 6'5" tall , maybe a

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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.

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

build, was clean shaven, had well groomed short hai r and was wearing a blue denim jacket, blue denim jeans, and sneakers. Druce said that if he saw a picture of th e robber he was absolutely certain he could pick him out bec ause of his noticeable height.

Detective Bisignio, also of the Franklin Township P olice, 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 Food town Area towards a pizza shop after 3:00 that day, "pro bably about a half hour" before the police officers arriv ed (making her estimated viewing around 3:30). She described W ilson as a 6'0" tall, clean shaven, thin, light-skinned b lack man with brown hair and brown eyes. She told Bisignio t hat he had some entanglement with heroin because his denta l records indicated that he was seeking methadone

treatment.

Bisignio relayed this information to Woroniecki, wh o conducted a criminal history and Department of Moto r Vehicles (DMV) check of Wilson. The criminal histor y report listed Wilson as being 5'10" and weighing 160 pound s. The DMV record apparently listed him as being 5'11". Woroniecki received a photograph of Wilson from the Middlesex County Identification Bureau, which he to ok to the Somerset County Sheriff 's Office in order to c ompile a photographic lineup. The office compiling the photo graphic array was apparently not aware of the physical desc riptions of the witnesses. On the afternoon of February 6,

Woroniecki fell ill and ceased all involvement in t he investigation of the floral shop robbery.

Detective Russo took over the investigation. On Feb ruary 6, he was provided with Officer Lipp's report and t he photographic array from the Somerset County Sheriff 's Office. Lipp's report includes a summary of the rob bery and a description of the robber that combined the Druce and Braverman physical descriptions. The report identif ies the

robber as between 6'3" and 6'5". It does not mentio n DaVila's assertion that she saw Wilson. Russo claim ed that he did not review any other officer's notes. He tes tified that

5he reviewed and authorized the photographic array w ithout

knowing what the witnesses had said about the robbe r.

Russo showed the photographic array to Braverman an d Druce individually. He told them each that the robb er might not be in the array, and that if they were to identify anyone they must be one hundred percent certain tha t the person they were identifying was the person who rob bed them. Braverman immediately selected Wilson's photo graph as representing the robber. Druce studied the array for about two minutes, indicating no recognition, andfi nally concluded that he could not say with certainty that he recognized the robber among them.

Russo testified that he does not remember whether h e knew Wilson's height and weight when he applied for the warrant. When questioned during deposition about wh ether he knew Wilson's actual height and weight, he said" Well, it'd probably be on the driver's license abstract b ecause I obtained that actually just for his address." In hi s response to Russo's summary judgment motion, Wilson made the

uncontroverted assertion that this information is o n 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 t o the questions of the prosecutor, Russo informed Judge D ilts

that two witnesses had described the robber as a li ght

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 photog raphic array "as a result of the physical descriptions." T his is contrary to what the record indicates, which is tha t 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 i dentify

6Wilson as the robber when shown the same photo arra y.

Russo stated that an employee of a nearby dentist's office who recognized Wilson had seen him around three o'c lock. He did not inform the judge that she had stated tha t she saw Wilson around 3:30, by which time the robber wa s already in the shop.

We also note that Russo answered the prosecutor's questions as if he had been there himself, suggesti ng that he had been the primary investigator and interviewe r at the scene of the crime. He did not tell the judge that, in the photo array, Wilson looked ethnically different fro m the others.2 Russo also did not inform the judge that h eight and weight were not indicated on the photo lineup.

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

warrant of arrest and to search for evidence. Russo executed the warrant the evening of February 6. Wil son 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 Townshi p 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 Jerse y Constitution, and the New Jersey common law. The defendants moved for summary judgment, and the Dist rict Court granted the motion.3 Wilson appealed.

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2. We note this omission not because we think there was a marked difference in appearance, but because Wilson's brie fs focus on it. As we discuss infra, our independent review of the photog raphic array satisfies us that although Wilson has slightly different feat ures 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. T herefore, although we will affirm the grant of summary judgment on the fe deral claims, we will remand to the District Court so that it may evaluat e the state claims and determine whether or not to retain jurisdiction of them under 28 U.S.C. S 1367(c).

7II. 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 tha t deprived him of "rights, privileges, or immunities" secured by the constitution or laws of the United States. S ee Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Becau se Russo has fairly raised a qualified immunity defens e, Wilson has a further burden. According to the doctr ine of qualified immunity, law enforcement officers acting within their professional capacity are generally immune fr om trial "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reaso nable person would have known." Wilson v. Layne, 119 S.Ct

. 1692, 1699 (1999) (quoting Harlow v. Fitzgerald , 4 57 U.S. 800, 818 (1982)).

The qualified immunity defense requires that we eng age in a two-step analysis. First, we must "determine w hether the plaintiff has alleged the deprivation of an act ual constitutional right at all." Conn v. Gabbert , 119 S. Ct. 1292, 1295 (1999). Only if he has should we "procee d to determine whether that right was clearly establishe d at the time of the alleged violation." Id. Summary judgmen t is appropriate if no reasonable juror could conclude t hat Wilson's clearly established rights were violated. See Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Ci r. 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 w hether 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 th e 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.

8Wilson contends that he was arrested without probab le

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. Howeve r, the statements given to Judge Dilts by Officer Russ o clearly establish probable cause: He was told that a robber y had taken place; that the descriptions of the victims w ere used to compile a photo array; that one of the victims h ad quickly and positively identified the suspect from the photo array; and that an employee in a nearby establishme nt had seen Wilson in the vicinity near the time he suppos edly entered the flower shop. See infra Section I.B.

In light of these facts, the only way that Wilson c an succeed is if he proffers evidence that Russo reckl essly disregarded the truth in his warrant application, a nd that a warrant application based on what Russo should ha ve 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. Mu lvihill, 113 F.3d 396, 399 (3d Cir. 1997). Rather, a plaintiff m ay succeed in a S 1983 action for false arrest made pu rsuant to a warrant if the plaintiff shows, by a preponder ance of the evidence: (1) that the police officer "knowingl y and deliberately, or with a reckless disregard for the truth,

made false statements or omissions that create a fa lsehood in applying for a warrant;" and (2) that "such stat ements or omissions are material, or necessary, to the findin g 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

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4. Wilson argues that because a jury could conclude that Russo lied, Russo loses the protection of qualified immunity re gardless 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 h ad been perfectly straightforward in his warrant application, there w ould have been probable cause to arrest Wilson.

9reasonable jury could conclude that Russo made

statements or omissions that he "knew [were] false, or would have known [were] false except for his reckle ss disregard for the truth." United States v. Leon, 46 8 U.S. 897, 923 (1984); cf. Franks v. Delaware, 438 U.S. 1 54 (1978). In Franks, the Court held that where a defe ndant showed by the preponderance of the evidence that a false statement necessary to the finding of probable caus e 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 Fr anks gave no guidance concerning what constitutes a reck less 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 t ruth means different things when dealing with omissions and assertions, and to explain the different methodolog ies for dealing with each.

1. Omissions

All storytelling involves an element of selectivity . We cannot demand that police officers relate the entir e 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 photograph ic array. I noticed his hand crept up to his lips (whi ch were chapped) . . ."). On the other hand, one of the rea sons for requiring a neutral magistrate to evaluate probable cause is that an uninterested party is presumably better sui ted to review and evaluate the facts than an officer pursu ing a lead. "The point of the Fourth Amendment, which oft en is not grasped by zealous officers, is not that it den ies law enforcement the support of the usual inferences whi ch

10reasonable men draw from evidence. Its protection c onsists

in requiring that those inferences be drawn by a ne utral 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 t hat 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 w ere taken alone--requiring a police officer to tell all, and permitting a police officer to independently determine materiali ty--we follow the common sense approach of the Court of Ap peals for the Eighth Circuit and hold that omissions are made with reckless disregard if an officer withholds a f act 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 C ir. 1993). In Jacobs, the court concluded that the offi cer acted with reckless disregard when he told the magistrate that a drug sniffing dog showed "interest" in the bag of t he 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 co urt held

that "the omission occurred at least with reckless disregard of its effect upon the affidavit." Id.

Russo alleges that Wilson made the following omissi ons 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 th e 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 di d not mention that height and weight were not indicated o n the photo array.

Applying the test adopted above, we address these contentions in turn. Any reasonable person would kn ow

11that the significant height differential, and the f act 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 ethnici ty of the victim, or slight variations in appearance on t he photographic line-up absent circumstances making th ese factors more important or prejudicial. Finally, the fact that height and weight were not listed on the photo arra y 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 reckl ess disregard for the truth even if they involve minor details-- recklessness is measured not by the relevance of th e information, but the demonstration of willingness t o affirmatively distort truth. In applying the reckle ss 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 149 0, 1501 (3d Cir. 1993) (quoting Garrison v. Louisiana , 379 U.S. 64, 74 (1964)); see also United States v. Clapp, 46 F.3 d 795, 800 (8th Cir. 1995) (reckless disregard for the tru th is exhibited when expressing that which was not "belie ved or appropriately accepted" as true). An assertion is m ade 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 d oubt the accuracy of the information he reported." Clapp, 46 F.3d at

801 n.6.

Applying these tests to this case, Russo had reason s to "doubt the accuracy" of his intimation that he had personally investigated the entire case and intervi ewed the witnesses after the robbery. More importantly, a ju ry could

conclude that Russo "must have entertained serious doubts

about the truth of his statement" that the dental w orker had seen Wilson around 3:00, instead of around 3:30

.

12Because he told the judge about DaVila's identifica tion,

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 repo rt, either

of which would include her statement that she saw W ilson about a half an hour before the police arrived, whi ch would place her sighting at about 3:30. If Russo knew of the time difference, he had "obvious reasons to doubt" his a ssertion 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 Ru sso would have examined these reports as a matter of co urse or policy, or any evidence from which a jury could inf er knowledge of their content. Moreover, there is no e vidence that Russo knew that the array was developed from Wilson's photo alone. Therefore, a jury could not c onclude 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 an d assertions made knowingly, or with reckless disrega rd for the truth, we turn to the next step of the reconstr uctive surgery required by our jurisprudence, and assess w hether

the statements and omissions made with reckless dis regard of the truth were "material, or necessary, to thefi nding of probable cause." Sherwood, 113 F.3d at 399.6 To det ermine

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5. Wilson also attempts to inject a due process arg ument into what is primarily a fourth amendment claim, arguing that th e officers were negligent in their investigation. However, negligen ce by public officials

is not actionable as a due process deprivation of a ci vil right. See Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Ci r. 1995) ("[T]he issue is not whether the information on which police offi cers base their request for an arrest warrant resulted from a professionall y executed investigation; rather, the issue is whether that in formation would warrant a reasonable person to believe that an offe nse has been or is being committed by the person to be arrested."); se e also Daniels v. Williams, 474 U.S. 327 (1986); Colburn v. Upper Dar by Township, 946 F.2d 1017 (3d Cir. 1991)).

6. Wilson submits that even if the statements are n ot material, he should at least get nominal damages for Russo's failure to provide the judge

13the materiality of the misstatements and omissions, we

excise the offending inaccuracies and insert the fa cts recklessly omitted, and then determine whether or n ot the "corrected" warrant affidavit would establish proba ble cause. See Sherwood, 113 F.3d at 400. If it does, t he grant of summary judgment should be affirmed, for even if there had not been omissions and misrepresentations in Ru sso's presentation to Judge Dilts, Wilson would have been

arrested.

Probable cause exists if there is a "fair probabili ty" that the person committed the crime at issue. See Sherwo od,

113 F.3d at 401. "Probable cause to arrest exists w hen the facts and circumstances within the arresting office r's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has be en or is being committed by the person to be arrested." Orsa tti, 71 F.3d at 483. A police officer may be liable for civ il damages for an arrest if "no reasonable competent officer" would conclude that probable cause exists. Malley v. Brig gs, 475 U.S. 335, 341 (1986).

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with exculpatory information. He relies on the Supr eme 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 Sm ith v. Chicago, 913 F.2d 469, 472-73 (7th Cir. 1990). In Smith, the cou rt held that actual damages for improvident police work leading to arre st was inappropriate because probable cause existed, so that no actual h arm flowed from the recklessness, but allowed the award of nominal dama ges 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 procedur al due process is actionable for nominal damages without proof of act ual injury."). On the strength of these cases, Wilson argues that Russo's omissions and fabrications are a harm independent of the injury o f arrest. Although we find the argument interesting, we would not address it today even if we found its requirements met, because it was not rais ed 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). I t was articulated for

the first time in supplemental letter memoranda sent to the court less than a month before oral argument.

14The defendants maintain that a positive identificat ion by

a victim is sufficient by itself to establish proba ble cause that the identified party was the offender. While w e agree that a positive identification by a victim witness, without more, would usually be sufficient to establish prob able cause, this qualified precept cannot be rendered ab solute. Independent exculpatory evidence or substantial evi dence of the witness's own unreliability that is known by the arresting officers could outweigh the identificatio n 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 kne w that the person in the photograph was 5', the positive ident ification would not be enough. Likewise, an otherwise credibl e victim identification would not provide probable cause if police officers contemporaneously possessed reliable DNA evidence which determined conclusively that the acc used could not have committed the crime. Or, if Druce ha d, equally firmly, picked another person from the phot o array, Braverman's identification might not have been suff icient for Russo to conclude that Wilson "probably" commit ted the crime. "An officer contemplating an arrest is not f ree to disregard plainly exculpatory evidence, even if sub stantial inculpatory evidence (standing by itself) suggests that probable cause exists." Kuehl v. Burtis, 173 F.3d 6 46, 650 (8th Cir. 1999).7

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7. We recognize that the Seventh Circuit has used l anguage suggesting that exculpatory evidence or evidence of unreliabil ity is totally

irrelevant. See Tangwall v. Stuckey, 135 F.3d 510 (7th Cir. 199 8). 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 fo r some time in the

restaurant in which she worked was her attacker. Sh e had previously described her attacker differently; the man in the restaurant was slightly older, heavier, taller, and had a different color h air and eyes than her original description. There was no corroborating ev idence or independent exculpatory evidence. The court concluded that the officers had qualified immunity in that case, stating along the way that"t he 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 we re objectively

15The cases that the defendants cite for their argume nt fall

into two basic camps: (1) those in which there was no exculpatory evidence or evidence of witness unrelia bility, such as United States v. Harris, 956 F.2d 177, 180 (8th Cir. 1992); and (2) those in which the court concluded t hat a positive identification was not fatally undermined by unreliability or exculpatory evidence, such as Shar rar v. Felsing, 128 F.3d 810 (3d Cir. 1993) and Lallemand v. University of Rhode Island, 9 F.3d 214 (1st Cir. 19 93). The first class of cases is inapposite here. Looking at the second class of cases, we find that courts have consistent ly considered the context of an identification, and ha ve not stated that police can rely on any witness accusati on, however unreliable or unbelievable.

For example, in Sharrar we affirmed the principle t hat "[w]hen a police officer has received a reliable id entification by a victim of his or her attacker, the police have probable cause." 128 F.3d at 818 (emphasis added). We conclu ded in that case that when the witness initially gave one name, but then identified her husband as her attacker, it was

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reasonable in light of clearly established law." Id . at 517 (emphasis added). Although we would have no reason to take is sue with the court's ultimate disposal of that case on its facts, especi ally given the relatively minor nature of the discrepancies, we find this sta tement overbroad, in that it appears to treat identifications as unimpea chable, and conflicts not only with the cases and language cited in the s ame section of the opinion, see id. at 516 (citing United States v. De coteau, 932 F.2d 1205, 1207 (7th Cir. 1991) for the proposition that "once a putative victim . .

. has positively identified her attacker to the polic e and they have no reason to disbelieve her, the officers `need not ta ke any additional steps to corroborate the information regarding the crime before taking action.' ") (emphasis altered)), but with suggestio ns in the case itself,

in which the court went out of its way to discuss reas ons to discount discrepancies in part because of the special circum stance 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 cons ider there to be probable cause to arrest someone identified as the assailant if the police officers were aware that the victim, like the boy w ho cried wolf, had previously firmly identified several different peop le as her attacker and repeatedly called the police demanding that they be arrested.

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

find her story credible, and rely on her subsequent identification of her husband as the attacker" in p art
because it was a domestic violence case. Id. Likewi se, in Lallemand, the First Circuit concluded that discrep ancies in a victim's description were "trivial, given their n ature" and in light of the positive identification, clearly im plying that non-trivial discrepancies, or external evidence pow erfully undermining the reliability of the witness's identi fication, might translate into a finding that there was no pr obable 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 p ositive identification. Braverman had considerable opportun ity to view the robber at the scene of the crime, and she exhibited a high level of certainty. There were three days be tween the crime and identification, so while it was not an en tirely fresh identification, not so much time had passed a s to call into question her recollection. Granted, Braverman' s testimony should be viewed with some skepticism bec ause her identification of Wilson was inherently incompa tible with her description of the robber--according to th e information available to Russo (Lipp's report), Bra verman (and/or her coworker) originally described the robb er as between 6'3" and 6'5". Although she did not know it , in identifying Wilson she identified someone much shor ter.
Both of these identifications cannot be correct. Ho wever,

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8. As in this case, Lallemand involved, among other things, a discrepancy in height. The victim initially described her attac ker as 6', while Lallemand is 6'7". But later the victim told the po lice that her attacker was "much taller" than a police officer who was ove r 6', 9 F.3d at 215 n.1, and no other witness (like Druce) had indicate d his height, and the court acknowledged no independent exculpatory evide nce. We do not disagree with the result, but think it was a simple r 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 of ficer that might be deemed to undercut the victim's credibility, such a s her intoxication, and

concluded that her identification was still reliabl e and probable cause

existed even when these facts were taken into accou nt.

17this indication of unreliability does not, from the vantage

point of the arresting officer, fatally undermine t he forceful positive identification. Added to this identificati on is the

fact that DaVila testified that she saw Wilson in t he vicinity

near the time of the theft.

On the other hand, there are three exculpatory fact s that Russo should have mentioned: (1) the robber was ori ginally identified as someone 6'3" to 6'5", while Wilson is four to seven inches shorter;9 (2) one of the two victim-wi tness with ample opportunity to view the robber failed to iden tify Wilson when shown a photo array; and (3) DaVila saw Wilson out in the shopping center when he was suppo sedly in the flower shop. But these exculpatory facts, wh en weighed against the inculpatory facts, are not stro ng enough to undermine a finding of probable cause. Th us, we conclude that the District Court correctly found th at 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 investigatio n, that is, whether the right was clearly established.

In sum, we conclude that the District Court correct ly

concluded that Russo did not violate Wilson's const itutional 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 arrest ed in the first instance, he was kept in jail in violatio n of his rights because Russo learned of exculpatory facts a fter the arrest which should have motivated him to try to re lease Wilson. On February 7, Russo interviewed Wilson's f riend

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9. The dissent notes that both Braverman and Druce described the robber in terms of his notable height, citing to Dr uce's several statements about how "very tall" the intruder was. However, while the report available to Russo stated that the robber wa sbetween 6'3" and 6'5", there is no record evidence from which a jury could concludethat Braverman's and Druce's more detailed impressions w ere passed on to

Russo.

18George Richardson, who told Russo that Wilson had s pent

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 eviden ce of his veracity, Richardson gave Russo a bank slip wit h 3:38 stamped on it. Russo testified that he visited the bank and

looked at the films from the bank's surveillance ca mera to look for Richardson, but that he could not recall w hat he saw and could not recall if the employees remembere d

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 officer s generally have no duty to try to release suspects when exculp atory information comes into their possession after a law ful arrest), with id. at 117-125 (Pollak, J., concurrin g) (proposing a rule by which "[a]n affirmative duty t o release arises . . . if an arresting or custodial officer a scertains beyond a reasonable doubt that the suspicion (proba ble cause) which forms the basis for the privilege of a rrest 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[defen dant police officer] to liability under S 1983."); BeVie r v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) ("The continuatio n of

even a lawful arrest violates the Fourth Amendment when the police discover additional facts dissipating th eir earlier probable cause.").

We do not, today, need to decide these difficult is sues.

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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 Wi lson as the man who had been in the shop with her.

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

seek to release a suspect when probable cause no lo nger exists, or the level of knowledge that he or she mu st have in order to trigger that duty, the interview with R ichardson clearly did not dispel the earlier probable cause. 11 A friend of Wilson gave Wilson a partial alibi, and his desc ription of Wilson's clothing did not match the victims' descri ptions, but he placed Wilson in the vicinity at the time of the robbery, and nothing he said overwhelmed the fact o f Braverman's positive identification. In short, no r easonable jury could conclude that this evidence dispelled pr obable

cause.

For the foregoing reasons, the grant of su mmary judgment will be affirmed as to the federal claims. The case

will be remanded to the District Court for consider ation of

the state claims.

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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 a rrest warrant is required by the Constitution to investigate indepen dently every claim of innocence, whether the claim is based on m istaken identity or a defense such as lack of requisite intent. Nor is the official charged with maintaining custody of the accused na med in the warrant required by the Constitution to perform an error-free investigation of

such a claim.

20GARTH, 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 wit h the majority opinion's equivocal "probable cause" analy sis 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 of fender," id. at 15, the majority opinion insists upon adopti ng a "weighing" principle that forces us to weigh"exculp atory" facts against "inculpatory" facts. See id. at 17-1 8. 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 Amend ment analysis, see Illinois v. Gates, 462 U.S. 213, 230 (1983).

In probable cause analysis, it is the reliability o f the witness (or victim) who has provided an identificat ion of the assailant that is the focal point of the inquiry. I t is not the reliability of the evidence provided in tandem with that individual's identification, which may be inconsist ent with such an identification. As a result, the majority c onfuses 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 wit h the

victim's identification. Inconsistent or contradict ory evidence may cut against a putative defendant's gui lt at trial, but it cannot render invalid -- i.e., elimin ate the probable cause necessary to obtain an arrest warran t-- a positive identification by an eyewitness who either a police officer or magistrate deemed to be reliable.

Reliability in this context obviously means an eyew itness who is neither mentally impaired or delusional. See Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 198 8) (stating that as long as the identifying victim eye witness is

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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 identi fied

individual). For instance, if the victim eyewitness were to show signs of insanity or other forms of mental ins tability, the reliability of that eyewitness would, in my vie w, justifiably be called into question. Statements dur ing the identification process such as "That's the assailan t! I'd know Abe Lincoln anywhere!" or "I believe that this is the thief, because he had three heads!" would signal su ch reliability concerns. Thus, it is the witness's re liability 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 exculp atory against inculpatory evidence. Majority Op., at 17-1 8. Accordingly, I part company with the majority opini on at the point where the majority seeks to distort the p robable cause analysis to the point of virtually requiring trial-type proof at the very threshold stage of criminal inves tigation.2

My thesis is simple and in accord with the prevaili ng jurisprudence. Once law enforcement officers have o btained 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 h as stated, "once a putative victim . . . has positively identi fied her attacker to the police and they have no reason to d isbelieve her, the officers `need not take any additional ste ps to corroborate the information regarding the crime bef ore 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 cir cuits validate my interpretation of this interplay betwee n the Fourth Amendment's probable cause requirement and victim eyewitness identifications, especially as th ey 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 Rhod e Island,

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2. As the Supreme Court has stated, the standard fo r "probable cause does not demand the certainty we associate with for mal trials." Illinois

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

229 F.3d 214 (3d Cir. 1993); Greene v. City of Philad elphia,

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 ha d been assaulted. See id. at 814. When the 911 operat or asked the woman to identify the individual who had committed the assault, she immediately responded wi th the name Robert Carroll. See id. Once the police arrive d, however, the woman had altered her story, and now a lleged that her husband -- David Brigden -- was the assail ant. See id. The police arrested Brigden, but after all charges against him had been dismissed, Bridgen brought a s ection 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 impair ed 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 offe nse as they would with other informants. See id. at 818 (q uoting Easton v. City of Boulder, 776 F.2d 1441, 1449 (10t h Cir. 1985)). Most importantly, however, the Sharrar pan el held that "[w]hen a police officer has received a reliab le identification by a victim of his or her attacker, the police have probable cause." Id. (citing Torchinsky v. Siw inski, 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 probabl e cause may be based on a single and reasonably reliable eyewitness identification, even though the identifi cation 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 sta ted that a victim's proffer of two different identifications f or his or her attacker by name does not undermine the eyewitness' s

23reliability enough to eliminate probable cause to a rrest. Any

reading of the Sharrar opinion has to lead to the c onclusion that it is the reliability of the eyewitness that i s relevant and essential to the probable cause analysis, not t he weighing process through which the majority attempt s to modify our jurisprudence.3

Sharrar's application to the present matter is stri king. Within a matter of hours, the alleged victim in Sha rrar provided the police with two different names for he r assailant. Even in the face of this blatant inconsi stency, the Sharrar court -- our court -- held that the purport ed 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 descriptio n of the assailant's height and Druce's inability to identif y the assailant when presented with the same photo array. Merely providing a height range that is inconsisten t 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 Wilso n, without more, was sufficient to give rise to probab le cause.

Even more persuasive, and nearly identical on a fac tual level, however, is Lallemand v. University of Rhode Island, 9 F.3d 214 (1st Cir. 1993). In Lallemand, a univers ity student alleged that she had been raped, and during a medical exam, stated that her assailant was a frate rnity pledge named "Dan," who was around six feet tall wi th blond hair. See id. at 214-15. During the ensuing p olice

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3. The majority cites the Eighth Circuit's opinion in Kuehl v. Burtis, 173 F.3d 646 (8th Cir. 1999), as support for this weigh ing process. The facts in Kuehl, however, do not concern eyewitness identi fication, and as such, render Kuehl completely inapplicable to the issue o f the sufficiency of an eyewitness identification -- the probable cause det ermination presented

in the instant case.

24investigation, law enforcement officers showed the student

photographs of each of the pledges from the fratern ity at

which the student claimed to have been assaulted. S ee id. at 215. Faced with these photos, the student "posit ively and without hesitation" identified, as her assailant, a n individual named "David," who stood 6'7", and did n ot 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. In deed, 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 thei r nature and the positive identification." Id. at 217 (empha sis 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 appear ance 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 p remise underlying the First Circuit's persuasive holding i n Lallemand, the equivocal and therefore improper and erroneous nature of the majority's probable cause a nalysis

becomes clear.

In all other respects, however, I concur in the maj ority's analysis and its ultimate result.

25POLLAK, District Judge, concurring in part and diss enting in

part

I agree with virtually all of the opinion of the co urt. With respect to the legal standards announced by the cou rt, I join the court's opinion without reservation. Where I part company with the opinion is in the court's applicat ion of its correct summary judgment standard to the facts in t his case. In my view, the question whether the " `corre cted' warrant" application (i.e., the warrant application as it would have been, had it been amended to cure office r Russo's omissions and misstatement) established pro bable

cause for Wilson's arrest is one that should be res erved 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 re asonable person would know that the significant height diffe rential, and the fact that an eye-witness did not identify W ilson, were the kind of things the judge would wish to kno w." Supra p. 11-12 (quotation omitted). The court is su rely correct in this conclusion. Like Braverman, Druce h ad ample opportunity to view the robber in the store, so his failure to identify the robber in the lineup is und oubtedly a significant fact. Braverman's and Druce's descripti ons of the robber's height are at least as significant for these purposes. Braverman described the robber as "very t all" 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 i nstance,
stated that while the robber was not someone he had seen before, "it would be someone I'd remember because o f the height of him, he's very tall that's the first thin g I said to Renee, `He's tall, he's very tall.' "

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

in favor of officer Woroniecki for the reasons disc ussed by the court, supra p. 3-4 note 1.

26For purposes of identification of a suspect, the

significance of the difference in height between Wi lson and the man described by Druce and Braverman may be eve n 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 D ruce and Braverman were quite clear that they viewed the rob ber as an exceptionally tall man. And while estimates of h eight 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--w ould describe that person as being exceptionally tall. A nd, of course, it would be that much more remarkable if tw o such observers made the same mistake. Thus, the height discrepancy was clearly a fact that a reasonable of ficer would expect a judge to want to know. It follows th at knowingly omitting such information in the context of a warrant application would amount to reckless disreg ard for the truth, as the court has concluded. Similarly, t he fact that Druce failed to identify Wilson was informatio n that a judicial officer would be expected to want to know. And, finally, I agree with the court that Russo's statem ent 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 discussi on of the materiality of the omissions and misstatement, concluding that the omissions and misstatement were not material in the face of Braverman's positive identi fication. Indeed, the court concludes that "no reasonable jur y could

find facts that would lead to the conclusion that W ilson'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 establi shed 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) (reversi ng summary judgment as to issue of probable cause); De ary v. Three Un-Named Police Officers, 746 F.2d 185 (3d Ci r. 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").

27Judge Garth, in his concurrence, argues that a posi tive

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 tha t may cast doubt on the accuracy of that identification. The court rejects Judge Garth's submission. While it is unden iable that a positive identification is very strong evide nce in support of a finding of probable cause--a finding t hat, as Judge Garth correctly notes, is properly made on fa r less evidence than that needed to establish guilt--the c ourt's rejection of a per se rule is surely correct. For, as the court's hypothetical illustrations demonstrate, the re 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 sho wing 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 l aw, the conclusion that a judicial officer to whom the"corr ected" warrant application was submitted could not have fo und probable cause. It is my view, however, that the pr esent
case is within the class of cases--a class that is likely to be a limited one where a positive identification has b een obtained--in which a factfinder might reasonably co nclude that a judicial officer assessing the "corrected" w arrant application would not have found probable cause. I say this for the following reasons.

The court acknowledges that Braverman's identificat ion "should be viewed with some skepticism because her identification of Wilson was inherently incompatibl e with her description of the robber." Supra p. 17. While the court does not undertake to quantify the level of skeptic ism the court would apply, it appears that the level is not very high, for Braverman's weakened identification, coupled wi th DaVila's observation of Wilson in the vicinity, is still viewed by the court as sufficient to support the conclusio n that a reasonable finder of fact would be required to conc lude that a judicial officer would have found probable cause, notwithstanding other strongly exculpatory evidence : namely, Druce's description of Wilson and his failu re to

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

seen in the parking lot at a time when the robber w as in the flower shop. By contrast, it seems to me well w ithin the range of plausibility that a judicial officer asses sing the "corrected" warrant application, (1) might have vie wed Braverman's identification with very considerable skepticism; (2) might have largely or entirely disc ounted DaVila's statement, given that the time at which Da Vila said she saw Wilson in the parking lot was the very time at which the robber was in Braverman's flower shop; an d (3) might have credited the other exculpatory evidence quite highly. If so, the judicial officer might reasonabl y have concluded that probable cause had not been establis hed. "But the weight that a neutral magistrate would lik ely have given such information is a question for the finder of fact." Velardi v. Walsh, 40 F.3d 569 (2d Cir. 1994). Accor dingly, so it seems to me, the District Court's grant of su mmary 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 supporte d by the court's conclusion that any reasonable person would view the omitted information as information that a judic ial officer would want to know--a conclusion that, as I have discussed, is quite proper given the significance o f that information in the context of the present case. A j udicial officer would be expected to want to know this info rmation largely because such information at least had the p otential

to make a difference in the determination of the ex istence of probable cause. It is thus puzzling that the cou rt 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 probab le cause inquiry, and (2) that it would be unreasonable to c onclude

that the information would have made a difference t o probable cause. It appears that the court views the information as potentially significant in thefirst context, but necessarily insignificant in the second. For th e reasons discussed above, I agree with the court that the in formation 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 b een

29supplied, the omitted and misstated information wou ld

have had a determinative effect on the issue of pro bable cause, even in the face of a positive identificatio n.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 conclu ded, in disagreement with the court, that a factfinder coul d find that, but for the misstatement and omissions, a jud icial officer would not have issued an arrest warrant, fr om which it follows that Russo's conduct could be found by a factfinder to have deprived Wilson of a constitutio nal right. The right not to be arrested on the basis of a warr ant
obtained on the basis of a law enforcement officer' s representations or omissions made in reckless disre gard of the truth is a clearly established right. See Lippa y 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 r ecklessly disregarded the truth, the officer obviously failed to observe a right that was clearly established. Thus, he is n ot entitled to qualified immunity.").

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

of the court's opinion, that no reasonable factfinder could have found that the additional exculpatory evidence gathered by Rus so subsequent to Wilson's arrest undermined probable cause. (As the court's opinion notes, see supra p. 19, I have had occasion, in Bra dy v. Dill, 187 F.3d 104, 123 (1st Cir. 1999) (concurring), to address t he further question, which the court in the present case identifies but does not undertake to resolve, whether an officer who acquires evidence w hich incontestably establishes the innocence of a person he holds in c ustody is constitutionally obligated to release that person w ithout seeking judicial intervention. In Brady, I was sitting as a member o f a First Circuit panel, and my affirmative answer to the question was rejec ted by the panel majority. In my view, application to the present re cord of either the standard I endorsed in Brady, or that adopted by th e 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.)

30Accordingly, 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 Appeal s for the Third Circuit

31