*The Honorable Algenon L. Marbley, United States District Judge forthe Southern District of Ohio, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0075P (6th Cir.)File Name: 00a0075p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________KATHERINEGARDENHIREandWALTERGARDENHIRE,Plaintiffs-Appellees,v.DONALDSCHUBERT, in hisindividual and officialcapacity as Chief of Police,Defendant-Appellant.;>1No. 98-6434Appeal from the United States District Courtfor the Middle District of Tennessee at Cookeville.No. 97-00061—Thomas A. Higgins, District Judge.Argued: August 5, 1999Decided and Filed: March 2, 2000Before: BATCHELDER and COLE, Circuit Judges;MARBLEY, District Judge.*2Gardenhire, et al. v. SchubertNo. 98-6434_________________COUNSELARGUED:Daniel H. Rader III, MOORE, RADER, CLIFT& FITZPATRICK, Cookeville, Tennessee, for Appellant.Lisa B. Harris, HARRIS LAW FIRM, Cookeville, Tennessee,for Appellees.ON BRIEF:Daniel H. Rader III, LaneMoore, MOORE, RADER, CLIFT & FITZPATRICK,Cookeville, Tennessee, for Appellant. Lisa B. Harris, SamuelJ. Harris, HARRIS LAW FIRM, Cookeville, Tennessee, forAppellees.MARBLEY, D. J., delivered the opinion of the court, inwhich COLE, J., joined. BATCHELDER, J. (pp. 26-30),delivered a separate opinion concurring in part and dissentingin part._________________OPINION_________________ALGENON L. MARBLEY, District Judge. PlaintiffsAppellees Katherine and Walter Gardenhire brought this suitagainst the Defendant-Appellant, Algood Police Chief DonaldSchubert, alleging that Chief Schubert violated their civilrights, in violation of 42 U.S.C. § 1983, by arresting themwithout probable cause and refusing to arrest and to prosecutetheir neighbor for burglarizing their retail business. ChiefSchubert filed a motion for summary judgment based onqualified immunity, which the district court denied. Thisinterlocutory appeal followed, and raises the same questionspresented in the court below. For the following reasons, weAFFIRMin part andREVERSEin part the judgment of thedistrict court.I.In December of 1996, Katherine Gardenhire owned a retailclothing store called Uniquely Yours. Located immediately30Gardenhire, et al. v. SchubertNo. 98-6434cause to arrest. Even absent probable cause, qualifiedimmunity is available if a reasonable police officer could havebelieved that his or her conduct was lawful, in light of clearlyestablished law and the information the searching officerspossessed.Anderson v. Creighton, 483 U.S. 635, 641 (1987).In 1996, the clearly established law of probable cause in thiscircuit wasCriss v. City of Kent. The majority spends somethree pages distinguishing this case, but Chief Schubert wasnot required to anticipate the majority’s opinion here. ChiefSchubert was entitled to rely on the plain holding ofCriss,and a reasonable and prudent man, rather than a legaltechnician,cf. Brinegar v. United States, 338 U.S. 160, 175(1949), could have readCrissto authorize the arrest, withoutfurther inquiry, of individuals who were in possession ofparticular goods that had been explicitly identified as stolen.Accordingly, I must dissent from this portion of the majority’sopinion.No. 98-6434Gardenhire, et al. v. Schubert3adjacent to Ms. Gardenhire’s establishment was a thrift shopowned by Mary Della Sala. The two businesses shared acommon interior doorway. The bathroom and climate-controlpanel for both stores were located in Ms. Della Sala’s shop.Some time shortly before December 1996, Ms. Gardenhireand Ms. Della Sala agreed to trade store fronts. On December31, the two women were in the process of moving theirmerchandise; both women had access to the other’sestablishments and each had property in both locations.On December 31, 1996, Ms. Della Sala telephoned theAlgood Police Department to report a theft of property fromher thrift shop. She claimed that a banjo, fiddle, pinkflamingo dish, television and VCR were among the itemsstolen. Algood Police Officer Bill Davis responded to Ms.Della Sala’s call by going to her store; he subsequentlycontacted Chief Schubert, who was also acting detective forthe city. When Chief Schubert arrived on the scene, OfficerDavis told him that Ms. Della Sala had reported certain itemsmissing from her store, and that some of these items werevisible, through the windows, inside Uniquely Yours.Chief Schubert, dressed in civilian clothes, and anotherofficer, in uniform, then went to the Gardenhires’ home andasked them to come to the police station as part of theinvestigation. There is no evidence in the record as to howthe officers phrased this directive. Although KatherineGardenhire is the sole owner of Uniquely Yours, the policealso solicited the cooperation of her husband, WalterGardenhire. The Gardenhires are an interracial couple:Katherine is Caucasian, and Walter is African-American.The Gardenhires drove their own car to the station, wherethey met Chief Schubert and Officer Davis. Chief Schubertexplained why the couple had been summoned there and readthem theirMirandarights. The Gardenhires agreed tocooperate in the investigation and answered all policequestions. During the interview, the couple admitted that theyhad, at their home, the flamingo dish Ms. Della Sala reportedstolen. They also told the police that they had a key to the4Gardenhire, et al. v. SchubertNo. 98-64341The parties have not stated, nor does the record reflect, exactly howlong the Gardenhires were detained at the police station.Della Sala store. Ms. Gardenhire alleges that she asked tocall her attorney at one point during the questioning, but thepolice denied the request. The police asked for permission tosearch Uniquely Yours, and Mr. Gardenhire signed a consentto search form. Ms. Gardenhire claims that throughout thisencounter, Chief Schubert made “condescending glares” ather and her husband. After spending some hours at the policestation1, the Gardenhires left, unaccompanied, in their owncar, and retrieved the flamingo dish from their home. Theythen met the police at their store.At the store, Mr. Gardenhire opened the door and allowedOfficer Davis and Chief Schubert to enter and recover Ms.Della Sala’s items. The police found all of the goodsMs. Della Sala claimed were stolen. At that point, bothofficers noted that the placement of these items was oddlyconspicuous. Officer Davis thought it would be “foolish” forsomeone to steal merchandise and then display it in the nextdoor window in plain view.While the police were recovering Ms. Della Sala’s items,Ms. Gardenhire noticed that several pieces of merchandisefrom Uniquely Yours were missing. Mr. Gardenhirediscovered that the cash register was gone. The Gardenhiressuspected that Ms. Della Sala had stolen the items and toldChief Schubert that they had been robbed. The officer refusedto deal with their complaint. Ms. Gardenhire became agitatedand demanded to make a police report. According to Ms.Gardenhire’s affidavit, Chief Schubert told her to “shut up,”and ordered her to leave the store and wait in her car. She didso.Soon afterwards, Chief Schubert asked the Gardenhires tofollow Officer Davis to the Putnam County Justice Center topresent the facts to Magistrate Martin Wheeler. He advisedthe couple that they would be booked on charges of theft,burglary and criminal trespass, and would have to post bondNo. 98-6434Gardenhire, et al. v. Schubert29fact in the Gardenhires’ possession, according to the majority,“[f]urther investigation was necessary at that point.” Themajority goes on to speak of a “duty to investigate an allegedcrime before making an arrest,” suggesting that ChiefSchubert was obligated to elicit and consider an exculpatoryexplanation from the Gardenhires. In so doing, themajority—although denying that it is doing so—subtlypromulgates the rule that arresting officers have a duty toconduct an investigation into the basis of an eyewitness reportbefore making an arrest that is founded on the report.SeeFuller v. M.G. Jewelry, 950 F.2d 1437, 1453 (9th Cir. 1991)(Hall, J., concurring).This holding flies in the face ofCriss’s explicit admonitionthat “no such duty to investigate can nor should be created.”Criss, 867 F.2d at 263. AndCrissis bottomed on SupremeCourt caselaw. InBaker v. McCollan, the Supreme Courtheld that, “Given the requirements that arrest be made only onprobable cause and that one detained be accorded a speedytrial, we do not think a sheriff executing an arrest warrant isrequired by the Constitution to investigate every claim ofinnocence . . . .”Baker, 443 U.S. 137, 145-46 (1979).Although the plaintiff inBakerdid not bring a claim under theFourth Amendment, this court, inCriss, and others haveapplied the Supreme Court’s decision in the context ofprobable cause.Criss, 867 F.2d at 263;Pickens v. Hollowell,59 F.3d 1203, 1207 (11th Cir. 1995). The result is clear: aduty to investigate is no part of the probable causedetermination.Criss, 867 F.2d at 263;Kelley v. Myler, 149F.3d 641, 646-47 (11th Cir. 1998) (“We refuse to add thisextra requirement to the probable cause determination . . . .The inquiry is whether an officer has reasonable grounds onwhich to act, not whether it was reasonable to conduct furtherinvestigation.”).Even if the majority were correct that the information inChief Schubert’s possession “was not enough to justify anarrest,” the Chief would still be entitled to summary judgmenton the basis of qualified immunity. The doctrine of qualifiedimmunity does not require that there actually be probable28Gardenhire, et al. v. SchubertNo. 98-6434the determination whether probable cause to arrest exists.A policeman, however, is under no obligation to give anycredence to a suspect’s story nor should a plausibleexplanation in any sense require the officer to foregoarrest pending further investigation if the facts as initiallydiscovered provide probable cause. . . .To hold otherwise would be to allow every suspect,guilty or innocent, to avoid arrest simply by claiming “itwasn’t me.” And if the arresting officer failed toinvestigate such claims prior to arrest, the arrestee couldbring a section 1983 suit. . . . [W]e find that no suchduty to investigate can nor should be created.Criss, 867 F.2d at 263 (citations omitted).The majority attempts, unconvincingly, to distinguishCriss.The majority suggests that the items inCrisswere of the typethat one must presume are stolen, while those in this casecould be deemed stolen only from Ms. Della Sala’saccusation. But this is to say that an inference that an officermight logically draw from the nature of a stolen object isentitled to greater weight than the testimony of the victim ofthe crime—a premise that itself is contrary to establishedprecedent. Where, as here, a citizen informant is the victimof the crime in question, her report is entitled to great weightin the probable cause determination.See, e.g.,Adams v.Williams, 407 U.S. 143, 147 (1972). Indeed, as this court hasrecently pointed out, a crime victim’s accusation standingalone can establish probable cause.Ahlers v. Schebil, 188F.3d 365, 370 (6th Cir. 1999);see also United States v.Maryland, 479 F.2d 566, 569 (5th Cir. 1973) (holding that“information given to law enforcement authorities by thevictim of the crime immediately after its occurrence wasclearly sufficient to supply probable cause for appellant’sarrest”).From these shaky ramparts, the majority launches itsprincipal assault on the holding ofCriss. After ChiefSchubert had received the crime victim’s complaint, and afterhe had corroborated that the allegedly stolen goods were inNo. 98-6434Gardenhire, et al. v. Schubert5to be released. Ms. Gardenhire’s affidavit describes herimpressions at that point: “We were not given a choice to goand I understood that if I did not drive myself that I would bephysically forced to go. We were warned not to deviate fromthe specified route and that if we did not show up at thePutnam County Justice Center that a capias would be issuedfor our arrest.” The parties stipulate that the police did notplace the Gardenhires in a police car, nor did the officers say“you are under arrest,” handcuff or physically touch thecouple. The Gardenhires complied with Schubert’s directionand followed Officer Davis to the Justice Center in their owncar. As Officer Davis led the couple to the Justice Center, hedid not use his police lights or siren.At the Justice Center, Magistrate Wheeler spoke to theGardenhires. After this interview, the magistrate determinedthat there was no probable cause to arrest the couple, andconcluded that this was a civil matter. At some point duringthe Justice Center episode, Chief Schubert told the couplethey should “just collect up the rest of [their] things and getout of town.” The Gardenhires were not booked,fingerprinted or photographed. They were not incarceratedand were free to leave after the interview with MagistrateWheeler.On June 16, 1997, The Gardenhires brought this suit in theUnited States District Court for the Middle District ofTennessee against Chief Schubert and the Algood PoliceDepartment. Chief Schubert is the only remaining defendant,and is sued in both his individual and official capacity. TheGardenhires have brought two claims against Chief Schubertpursuant to 42 U.S.C. § 1983. First, the Gardenhires allegethat Chief Schubert violated the Fourth Amendment’sprohibition against unreasonable searches and seizures byarresting them without probable cause. Second, theGardenhires claim Chief Schubert violated the FourteenthAmendment’s guarantee of equal protection of the laws bynot pursuing an investigation against Ms. Della Sala, andarresting the Gardenhires instead. The second claim ispremised on the theory that the officers’ failure to investigate6Gardenhire, et al. v. SchubertNo. 98-6434was motivated by the fact that the Gardenhires are aninterracial couple.On November 14, 1997 Chief Schubert filed a motion forsummary judgment arguing that he is protected from this suitby the doctrine of qualified immunity. The district courtdenied this motion, holding that Chief Schubert was notentitled to qualified immunity because a reasonable jury couldfind that his actions on December 31, 1996 amounted to anarrest of the Gardenhires, and that the arrest was madewithout probable cause. The district court also held thatselective enforcement of state laws is actionable under theEqual Protection Clause of the Fourteenth Amendment.Chief Schubert now brings this interlocutory appeal of theissues raised in his original motion for summary judgment.II.The denial of a summary judgment motion on the issue ofqualified immunity is immediately appealable.SeeMitchellv. Forsyth, 472 U.S. 511 (1985). The issue of qualifiedimmunity is a question of law to be reviewedde novoby thisCourt.See Long v. Norris, 929 F.2d 1111, 1114 (6th Cir.1991). Summary judgment is only appropriate where the“pleadings, depositions, answers to interrogatories, andadmissions on file together with the affidavits, if any, showthat there is no genuine issue as to any material fact and thatthe moving party is entitled to a judgment as a matter of law.”Fed. R. Civ. P. 56(c). All facts, as well as all inferencesdrawn therefrom, must be viewed in the light most favorableto the nonmoving party.See Matsushita Elec. Indus. Co., Ltd.v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).Schubert claims he is entitled to summary judgment basedon the affirmative defense of qualified immunity against theGardenhires’ § 1983 claims. Section 1983 provides:Every person who under color of any statute, ordinance,regulation, custom, or usage, of any State . . . subjects, orcauses to be subjected, any citizen of the United States orother person within the jurisdiction thereof to theNo. 98-6434Gardenhire, et al. v. Schubert27Here, the apparent victim of an alleged theft accused theGardenhires of the crime, and the objects allegedly stolenwere found in the Gardenhires’ actual or constructivepossession. These objective factors support a reasonablebelief that the Gardenhires had committed the offense of theft;the fact that before he instructed the Gardenhires to go to theJustice Center, Chief Schubert declined to conduct furtherinvestigation on the basis that the allegedly stolen objectswere visible through a window, or on the basis that theGardenhires protested their innocence, does not vitiateprobable cause. A panel of this court so held inCriss v. Cityof Kent, 867 F.2d 259 (6th Cir. 1988), a case whoseprecedential grasp the majority engages in considerableacrobatics to evade.InCriss, police officers observed through an open windowstreet signs belonging to the City of Kent. The officersobtained a search warrant and questioned Criss, who residedin the apartment. Criss maintained that the signs had beentaken by his roommate. The officers nevertheless arrestedhim for receipt of stolen property. A prosecutor laterdismissed the charge, and Criss brought a § 1983 action forviolation of his Fourth Amendment rights.Despite Criss’s plausible on-the-spot explanation of hisassociation with the signs, and despite the fact that someonein receipt of stolen signs would be unlikely to display them topublic view, this court held that the arresting officers hadprobable cause for the arrest. The court noted that the signswere either the property of the City or were remarkablereplicas. Because Criss had either constructive or actualpossession of them, the court concluded, the officers hadreasonable ground for their belief that Criss had receivedstolen property. The court went on to make clear that a dutyto investigate is not part of the probable cause inquiry. Thecourt’s holding in this regard is worth setting out at length:A suspect’s satisfactory explanation of suspiciousbehavior is certainly a factor which law enforcementofficers are entitled to take into consideration in making26Gardenhire, et al. v. SchubertNo. 98-64341Although I question whether the Gardenhires were ever arrested, Iwill not take up the cudgels on that subject here. The important point isthat the police had probable cause to arrest them after the initial interview,and the totality of the circumstances did not subsequently tip the balancein favor of the Gardenhires._____________________________________________CONCURRING IN PART, DISSENTING IN PART_____________________________________________ALICE M. BATCHELDER, Circuit Judge, concurring inpart and dissenting in part. The majority opinion creates anew factor in the determination of probable cause: a duty toinvestigate. Because this innovation runs counter to thesettled law of this circuit, and because Chief Schubert canhardly be expected to have anticipated it, I must dissent fromPart II of the majority opinion.When viewed in the light most favorable to the plaintiffs,the evidence establishes that from their earliest encounterwith the Gardenhires, the police were in possession of fourfacts. First, Mary Della Sala complained that her belongingshad been stolen, and that they were visible through thewindows of the Gardenhires’ shop. Second, the allegedlystolen items were in fact in the Gardenhires’ shop. Third, theplacement of the items in public view was somewhatsuspicious. Finally, the Gardenhires professed no knowledgeof the theft.These facts plainly support a finding of probable cause,regardless of when the Gardenhires were “arrested.”1Probable cause means “facts and circumstances within theofficer’s knowledge that are sufficient to warrant a prudentperson, or one of reasonable caution, in believing, in thecircumstances shown, that the suspect has committed . . . anoffense.Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). Itis not an exacting standard; probable cause requires only theprobability of criminal activity, not some type of “primafacie” showing.Illinois v. Gates, 462 U.S. 213, 235 (1983).No. 98-6434Gardenhire, et al. v. Schubert7deprivation of any rights, privileges, or immunitiessecured by the Constitution and laws, shall be liable tothe party injured in an action at law, suit in equity, orother proper proceeding for redress. . . .By its terms, § 1983 creates no substantive rights; it merelyprovides remedies for deprivations of rights establishedelsewhere.See Tuttle v. Oklahoma City, 471 U.S. 808 (1985).In this case, the Gardenhires allege that Schubert violatedtheir Fourth Amendment right to be free from unreasonablesearches and seizures as well as their Fourteenth Amendmentright to equal protection of the laws.The affirmative defense of qualified, or good faith,immunity shields “government officials performingdiscretionary functions . . . from liability for civil damagesinsofar as their conduct does not violate ‘clearly established’statutory or constitutional rights of which a reasonable personwould have known.”Harlow v. Fitzgerald, 457 U.S. 800,818 (1982). An official may, however, be held personallyliable for civil damages for unlawful official action if thataction was not objectively reasonable in light of the legalrules that were “clearly established” at the time it was taken.See Anderson v. Creighton,483 U.S. 635, 639 (1987). This“objective legal reasonableness” standard analyzes claims ofimmunity on a fact-specific, case-by-case basis to determinewhether a reasonable official in the defendant’s position couldhave believed that his conduct was lawful, judged from theperspective of the reasonable official on the scene.SeeGraham v. Connor, 490 U.S. 386, 396 (1989).When determining whether a right is "clearly established,"this Court must look "first to decisions of the Supreme Court,then to decisions of this Court and other courts within ourcircuit, and finally to decisions of other circuits."Daughertyv. Campbell, 935 F.2d 780, 784 (6th Cir. 1991). "Thecontours of the right must be sufficiently clear that areasonable official would understand that what he is doingviolates that right."Anderson v. Creighton, 483 U.S. 635,640 (1987). However, “[t]his not to say that an official action8Gardenhire, et al. v. SchubertNo. 98-6434is protected by qualified immunity unless the very action inquestion has previously been held unlawful; but it is to saythat in the light of pre-existing law the unlawfulness must beapparent."Id.(citations omitted).Where a defendant moves for summary judgment based onqualified immunity, the plaintiff must first identify a clearlyestablished right alleged to have been violated and second,establish that a reasonable officer in the defendant’s positionshould have known that his conduct violated that right.SeePray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995);Johnson v. Estate of Laccheo, 935 F.2d 109, 111 (6th Cir.1991). The ultimate burden of proof is on the plaintiff toshow that the defendant is not entitled to qualified immunity.See Wegener v. Covington, 933 F.2d 390, 392 (6th Cir. 1991).The defendant bears the initial burden of coming forward withfacts to suggest that he acted within the scope of hisdiscretionary authority during the incident in question.Thereafter, the burden shifts to the plaintiff to establish thatthe defendant’s conduct violated a right so clearly establishedthat any official in his position would have clearly understoodthat he was under an affirmative duty to refrain from suchconduct.See Rich v. City of Mayfield Heights, 955 F.2d1092, 1095 (6th Cir. 1992). This Court has held, however,that:summary judgment would not be appropriate if there isa factual dispute (i.e., a genuine issue of material fact)involving an issue on which the question of immunityturns, such that it cannot be determined before trialwhether the defendant did acts that violate clearlyestablished rights. Summary judgment also should bedenied if the undisputed facts show that the defendant'sconduct did indeed violate clearly established rights. Ineither event, the case will then proceed to trial. . . .Poe v. Haydon, 853 F.2d 418, 425-26 (6th Cir. 1988)(citations omitted).In this case, to determine whether Chief Schubert’s actionsviolated any clearly established constitutional rights, thisNo. 98-6434Gardenhire, et al. v. Schubert25ignore,see Criss, 867 F.2d at 262, -- rather than in the“citizen making a complaint” category. While Ms. DellaSala’s store may have been similarly situated to theGardenhires geographically, by virtue of the timing of theirrespective complaints, she was not otherwise similarlysituated to the Gardenhires on December 31, 1996. Therewas no police report implicating Ms. Della Sala of a crime.Second, the Gardenhires have not presented any evidenceto support their claim that Chief Schubert purposefullydiscriminated against them because they are an interracialcouple. While Chief Schubert’s manners may not haveconformed to Emily Post standards, there is no evidence thathe was motivated by racial animus. The Gardenhires’ basicargument is that the police had no logical reason to prosecutethem rather than Ms. Della Sala, so the arrest must have beenmotivated by their interracial marriage. While such reasoningwould be sufficient in establishing aprima facieTitle VIIcase, the standard for a selective enforcement claim is muchmore demanding. The Gardenhires have failed to establishthat Chief Schubert acted with discriminatory purpose, norhave they presented the “clear evidence” of misbehaviorsufficient to sustain their selective enforcement claim toovercome the presumption that the state actors have properlydischarged their official duties. In light of the deference givento the discretionary decisions of law enforcement officers, andthe dearth of evidence to the contrary, the district court’sdecision on this issue is thereforeREVERSED, and theGardenhires’ Equal Protection claim isDISMISSED.24Gardenhire, et al. v. SchubertNo. 98-6434may find he was arrested and thathisarrest, at least, wasbased on racial animosity. And, just as a police officer maynot unevenly apply the laws against a citizen because of hisrace, neither may he apply the laws unevenly because a citizenis married to someone of a particular race.SeeLoving v.Virginia,388 U.S. 1, 8 (1967) (holding that state may nottreat interracial marriages differently from other marriages).There is no question that in 1996, it was clearly establishedthat police officers could not selectively enforce state lawsbased on racial distinctions.2. Issues of Law and FactThe Gardenhires argue that the facts, as they have alleged,support their claim of selective enforcement. Applying theAndersontest, the couple contends that a reasonable jurycould find, first, that Chief Schubert singled out theGardenhires for prosecution by arresting them and not MaryDella Sala, who was not involved in an interracialrelationship, but was otherwise similarly situated to theGardenhires. Second, the Gardenhires argue that a jury couldfind that Chief Schubert arrested them with a discriminatorypurpose, based on his “condescending glares” and the “get outof town” comment. Third, the jury could find that ChiefSchubert’s actions had a discriminatory effect on anidentifiable group: the Gardenhires, an interracial couple,were arrested, while Ms. Della Sala, who is not involved in aninterracial relationship, was not. The Gardenhires’ argumentstretches the facts beyond reason to fit their chosen legaltheory.First, the Gardenhires and Ms. Della Sala were not similarlysituated on December 31, 1996. For most of that day, therewas a police report implicating the Gardenhires in a crime;while they may not have had probable cause to arrest them,the police were justified in treating them as suspects in a theft.When the Gardenhires did eventually attempt to make apolice report concerning Ms. Della Sala, they were alreadycriminal suspects, putting their comments in the “suspectmaking an excuse” category -- which police may choose toNo. 98-6434Gardenhire, et al. v. Schubert9Court must decide, first, what the state of the law was onDecember 31, 1996, and, second, whether there is a factualdispute on which the question of immunity turns.See Rich,955 F.2d at 1095.A.JurisdictionThe Court's jurisdiction over interlocutory appeals on aclaim of qualified immunity is limited to considering pureissues of law.Berryman v. Rieger, 150 F.3d 561, 563 (6thCir. 1998) (finding that "[a] defendant who is denied qualifiedimmunity may file an interlocutory appeal with this Courtonly if that appeal involves the abstract or pure legal issue ofwhether the facts alleged by the plaintiff constitute a violationof clearly established law.") (citations omitted). Mixedquestions of fact and law are treated as questions of law.Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999) (enbanc).Here, the Court finds that it has jurisdiction to hear theDefendant's interlocutory appeal on the issue of qualifiedimmunity, as the question of whether there was probablecause for an arrest is a mixed question of law and fact.Painter v. Robertson, 185 F.3d 557, 569 (6th Cir. 1999)(citingOrnelas v. United States, 517 U.S. 690, 696-98(1996)).In finding that the determination of probable causeis a mixed question of law and fact, the Supreme Court inOrnelasreasoned that:The principal components of a determination ofreasonable suspicion or probable cause will be the eventswhich first occurred leading up to the stop or search, andthen the decision whether these historical facts, viewedfrom the standpoint of an objectively reasonable policeofficer, amount to reasonable suspicion or to probablecause. The first part of the analysis involves only adetermination of historical facts, but the second is amixed question of law and fact: 'The historical facts areadmitted or established, the rule of law is undisputed, andthe issue is whether the facts satisfy the [relevant]statutory [or constitutional] standard, or to put it another10Gardenhire, et al. v. SchubertNo. 98-6434way, whether the rule of law as applied to the establishedfacts is or is not violated.'Ornelas, 517 U.S. at 696-97 (citingPullman-Standard v.Swint, 456 U.S. 273, 289 n.19 (1982)).In making the determination of whether the right wasclearly established in this case, the Court must apply the factsto determine the legal question of whether there was probablecause for an arrest. This Court will only rely on theundisputed facts in making this determination. Theundisputed facts are as follows: when the Gardenhires wereat their residence, Chief Schubert told them that they “neededto go” to the police station. The Gardenhires, while at thepolice station, were read theirMirandarights and questioned.It is also undisputed that when the Gardenhires were withChief Schubert at their store, Chief Schubert told theGardenhires that they “needed to go” to the Justice Center;instructed them that they “needed to follow” a police officerto the station; and advised them that they would be booked oncriminal charges and released on bond once they reached theJustice Center.As for the determination of probable cause, the undisputedfacts before the Court are that Mary Della Sala claimed thatobjects from her store were missing and that those objectswere visible in the store-front window of the Gardenhires'store which was adjacent to Sala's store.What is in dispute in this case is whether Chief Schubertarrested the Gardenhires, and if he did arrest them, whether hehad probable cause to do so. Just as inWilliams v. Mehra, theonly "'facts' in dispute are the ultimate issues to be decided byapplying the law to the basic facts. . . ." 186 F.3d at 690. Thedetermination of whether there was probable cause andwhether there was an arrest involves mixed issues of law andfact, which are treated as an issue of law, and vest this Courtwith jurisdiction to hear the present interlocutory appeal.Id.at 690.No. 98-6434Gardenhire, et al. v. Schubert23that the plaintiff make at least aprima facieshowing thatsimilarly situated persons outside her category were notprosecuted.”S temler v. City of Florence, 126 F.3d 856, 873(6th Cir. 1997). Furthermore, “there is a strong presumptionthat the state actors have properly discharged their officialduties, and to overcome that presumption the plaintiff mustpresent clear evidence to the contrary; the standard is ademanding one.”Id.(citations omitted). The Gardenhires’Equal Protection claim is based on the theory that ChiefSchubert selectively enforced Tennessee’s criminal laws byarresting them on December 31,1996 and refusing toinvestigate Ms. Della Sala.Appellant argues that the Gardenhires have not identifieda clearly established right which he violated on December 31,1996, because they have not met their burden of producing acase showing that they have a constitutional right to havecriminal laws enforced against other citizens. Appellant’sargument misapprehends the doctrine of selectiveenforcement. While it is true that states have noconstitutional duty to protect citizens from violence by privateactors,see DeShaney v. Winnebago County Dept. of Soc.Serv.,489 U.S. 189, 195 (1989), it is clearly established that“the State may not, of course, selectively deny its protectiveservices to certain disfavored minorities without violating theEqual Protection Clause.”Id.at 197 n.3 (citingYick Wo v.Hopkins, 118 U.S. 356 (1886)).Appellant also raises the argument that because Ms.Gardenhire is Caucasian and admits to being the sole ownerof Uniquely Yours, neither Mr. nor Ms. Gardenhire can bringan Equal Protection claim. There are several flaws with thispremise. To begin, this is the first time Appellant has raisedthe issue. Appellate courts are free to decline considerationof arguments made for the first time on appeal.See id.at 195n.2. This argument also fails on substantive grounds. First,the Gardenhires’ Equal Protection claim stems not from ChiefSchubert’s failure to protect Ms. Gardenhires’ store, but fromthe allegedly wrongfularrestof the couple. There is nodispute that Mr. Gardenhire is African-American; the jury22Gardenhire, et al. v. SchubertNo. 98-6434this context, the court should dismiss a case, or take otherappropriate action, if the defendant can prove that theprosecutor or investigator intentionally singled him out forpunishment because of membership in a protected group orthe exercise of a constitutionally protected right.”Id.“In ourcriminal justice system, the Government retains broaddiscretion as to whom to prosecute.”Wayte v. United States,470 U.S. 598, 607 (1985). Although such discretion is broad,“it is not unfettered.” Selectivity in the enforcement ofcriminal laws is subject to constitutional constraints. Inparticular, the decision to prosecute may not be deliberatelybased upon an unjustifiable standard such as race, religion orother arbitrary classification.”Id. at 608 (citations omitted).“Selective enforcement can also lead to § 1983 liability ifthe plaintiff pleads ‘purposeful discrimination.’”Id.;see alsoOyler v. Boles, 368 U.S. 448, 456 (1962) (selectiveenforcement is a federal constitutional violation if “basedupon an unjustifiable standard such as race, religion, or otherarbitrary classification”). Discrimination is “purposeful” if itis intended to accomplish some “forbidden aim.”SeeFuternick, 78 F.3d at 1056. Such “forbidden aims” includeintentional selective enforcement because of race, nationality,religion, gender or “other arbitrary classification.”Id.at1056-57.This Court has established a three-part test for determiningif selective enforcement has occurred:First, [an official] must single out a person belonging toan identifiable group, such as those of a particular race orreligion, or a group exercising constitutional rights, forprosecution even though he has decided not to prosecutepersons not belonging to that group in similar situations.Second, [the official] must initiate the prosecution witha discriminatory purpose. Finally, the prosecution musthave a discriminatory effect on the group which thedefendant belongs to.United States v. Anderson, 923 F.2d 450, 453 (6th Cir. 1991).With regard to the first element, “it is an absolute requirementNo. 98-6434Gardenhire, et al. v. Schubert112These "facts" in dispute in the present case reach the ultimate issuesto be decided and are not those factual disputes that would "divest thecourt of jurisdiction."See Williams v. Mehra, 186 F.3d 685, 690 (6th Cir.1999).B.Fourth Amendment: The Right to be Free fromUnreasonable Seizures1. State of the LawThe Fourth Amendment guarantees that governmentofficials may not subject citizens to unreasonable searches orseizures without proper authorization. An intrusion that lackssuch authorization is presumptively unreasonable, “subjectonly to a few specifically established and well-delineatedexceptions.”See Katz v. United States,389 U.S. 347, 357(1967). For example, police only need a reasonable suspicionof criminal activity to conduct a brief investigatory detention.See Terry v. Ohio, 392 U.S. 1, 30 (1968). The determinationof “reasonableness” in aTerrystop context depends on abalance between “the need to search [or seize] against theinvasion which the search [or seizure] entails.”Id.at 21.When a detention rises to the level of a full-fledged arrest,however, the Fourth Amendment demands that the seizure besupported by probable cause.See Dunaway v. New York, 442U.S. 200, 212-14.There is no question that in 1996 “the law was clearlyestablished that, absent probable cause to believe that anoffense had been committed, was being committed, or wasabout to be committed, officers may not arrest an individual.”See Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir.1999)(discussing the state of the law in 1991). Thus, the onlyquestions as to the Gardenhires’ Fourth Amendment claim arethose of fact: did Chief Schubert “arrest” the Gardenhires onDecember 31, 1996? If so, did the arrest lack probable cause?If a reasonable jury could answer “yes” to both questions, thiscase must proceed to trial.212Gardenhire, et al. v. SchubertNo. 98-64342. Mixed Question of Law and Facta. Whether Officer Schubert “Arrested” theGardenhiresTo constitute a seizure of the person, just as to constitute anarrest, there must be either the application of physical force,however slight, or, where that is absent, submission to anofficer’s “show of authority” to restrain the subject’s liberty.See California v. Hodari D., 499 U.S. 621, 626-28 (1991). Inthis case, it is undisputed that the officers never physicallytouched the Gardenhires. Thus, in determining whethercouple was actually arrested, we must focus on whether theGardenhires submitted to Officer Schubert’s “show ofauthority.” “The test for existence of a ‘show of authority’ isan objective one: not whether the citizen perceived that hewas being ordered to restrict his movement, but whether theofficer’s words and actions would have conveyed that to areasonable person.”Id.at 628. A person has been “seized”within the meaning of the Fourth Amendment when “in viewof all the circumstances surrounding the incident, a reasonableperson would have believed that he was not free to leave.”United States v. Mendenhall, 446 U.S. 544, 544 (1980).Chief Schubert contends that because he never formallyarrested the Gardenhires, the guarantees of the FourthAmendment were never implicated. This argument fails. TheFourth Amendment’s protections are not limited to traditionalarrests: “a clear deprivation of liberty caused by lawenforcement officers without formal words is nonetheless anarrest.”See Centanni v. Eight Unknown Officers, 15 F.3d587, 590 (6th Cir. 1994) (citations omitted). The SupremeCourt has explained:There is no doubt that at some point in the investigativeprocess, police procedures can qualitatively andquantitatively be so intrusive with respect to a suspect’sfreedom of movement and privacy interests as to triggerthe full protection of the Fourth and FourteenthAmendments. And our view continues to be that the lineis crossed when the police, without probable cause or aNo. 98-6434Gardenhire, et al. v. Schubert21making the determination whether probable cause to arrestexists.”Criss, 867 F.2d at 262. Here, a reasonable jury couldfind that Chief Schubert did not have probable cause, basedon the totality of information he had at the time, to arrest theGardenhires.Furthermore, the jury will have to analyze the probablecause question in light ofwhenthey conclude that the arrestoccurred, because the factors in the probable causedetermination shifted as the day went on. As the policeofficers gathered more facts about the alleged crime, thetotality of the circumstances changed. For example, if a juryfinds that the arrest took place when the officers asked theGardenhires to go to the police station, the probable causedetermination centers on Ms. Della Sala’s report and thesiting of the “stolen” items in the window. If, however, thejury finds that the arrest occurred after the police visitedUniquely Yours with the Gardenhires, they will have toconsider the Gardenhires’ statements at the police station, andthe fact that the officers noticed at their store the suspiciousplacement of the supposedly stolen items and heard theGardenhires’ allegation that they had been robbed. With suchfluid, fact-specific elements at the heart of this probable causeinquiry, it is a question properly reserved to the fact-findingprovince of a jury. The district court’s finding on this issueis, therefore,AFFIRMED.C.Fourteenth Amendment: Selective Enforcement1. State of the Law“Sometimes the enforcement of an otherwise valid law canbe a means of violating constitutional rights by invidiousdiscrimination. To address this problem, courts havedeveloped the doctrine of selective enforcement.”Futernickv. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir. 1996).Selective enforcement claims are judged according toordinary Equal Protection standards, which require apetitioner to show both a discriminatory purpose and adiscriminatory effect.See id.Usually, claims of selectiveenforcement arise as a defense in criminal prosecutions. “In20Gardenhire, et al. v. SchubertNo. 98-6434warrant a finding that the Gardenhires had committed an offense or toestablish probable cause.See Beck v. Ohio, 379 U.S. at 91. Therefore,the Chief is not entitled to summary judgment on the basis of qualifiedimmunity.In her Dissent, Judge Batchelder states that the Court hasadded a "duty to investigate" as a new factor to be used indetermining probable cause. The Dissent finds that the policehad probable cause irrespective of when the Gardenhires werearrested. The factors the Dissent puts forward as establishingprobable cause include: that the allegedly stolen items werevisible through the Gardenhires' shop; that the stolen itemswere actually located in the Gardenhires' shop, and finally,that the placement of the allegedly stolen items wassuspicious. CitingCriss v. City of Kent, 867 F.2d 259 (6thCir. 1998), the Dissent states that probable cause is noteliminated by the fact that the Gardenhires claimed they wereinnocent.Contrary to the Dissent's assertion, this Court is not addinga duty to investigate as a factor for the establishment ofprobable cause. This Court recognizes that an officer doesnot have to investigate independently every claim ofinnocence.See Baker v. McCollan, 443 U.S. at 145-56. But,this axiom does not suggest that an officer hasnoduty toinvestigate an alleged crime before making an arrest. Apolice officer has probable cause only when he discoversreasonably reliable information that the suspect hascommitted a crime.See Beck, 379 U.S. at 91. And, inobtaining such reliable information, an officer cannot lookonly at the evidence of guilt while ignoring all exculpatoryevidence. Rather, the officer must consider the totality of thecircumstances, recognizing both the inculpatoryandexculpatory evidence, before determining if he has probablecause to make an arrest.See Dietrich, 167 F.3d at 1012.While it is true that “[a] valid arrest based upon then-existingprobable cause is not vitiated if the suspect is later foundinnocent,” “[a] suspect’s satisfactory explanation ofsuspicious behavior is certainly a factor which lawenforcement officers are entitled to take into consideration inNo. 98-6434Gardenhire, et al. v. Schubert13warrant, forcibly remove a person from his home or otherplace in which he is entitled to be and transport him tothe police station, where he is detained, although briefly,for investigative purposes. We adhere to the view thatsuch seizures, at least where not under judicialsupervision, are sufficiently like arrests to invoke thetraditional rule that arrests may constitutionally be madeonly on probable cause.Hayes v. Florida, 470 U.S. 811, 815-16 (1985) (citationsomitted). Thus, the fact that Chief Schubert did not formallyarrest the Gardenhires does not resolve the issue of whethertheir detention amounted to an arrest requiring probablecause.Instead, the question is whether a reasonable jury could findthat a person in the Gardenhires’ position would have felt freeto leave. We agree with the district court’s analysis inconcluding that a jury could find that a reasonable person inthe Gardenhires’ position would not have felt free to leave.The undisputed facts the district court considered were thatChief Schubert: (1) told the Gardenhires at their residencethey “needed to go” to the police station; (2) read them theirMirandarights at the police station; (3) questioned theGardenhires extensively at the police station; (4) told theGardenhires later, at the store, that they “needed to go” to theJustice Center; (5) instructed them that they “needed tofollow” a police officer to the station; and (6) advised theGardenhires that they would be booked on criminal chargesand released on bond.Based on these facts, a jury could find that a reasonableperson in the Gardenhires’ position would have felt that theywere not free to leave. A police officer’s statement that “youneed to go” somewhere carries substantial authoritativeweight. We think very few people could hear such a directivefrom a police officer and still think they were free to actotherwise. Once the police removed the Gardenhires fromtheir home to the police station, the encounter took on anarrest-like nature.See Hayes, 470 U.S. at 816 (holding that14Gardenhire, et al. v. SchubertNo. 98-6434the line separating aTerrystop and an arrest is crossed whenpolice “forcibly remove a person from his home or other placein which he is entitled to be and transport him to the policestation, where he is detained, although briefly, forinvestigative purposes”). The custodial nature of the policestation encounter intensified with the time the Gardenhiresspent there and the fact that Chief Schubert read them theirMirandarights.See United States v. Obasa, 15 F.3d 603, 608(6th Cir. 1994) (holding police officer knew thatMirandarights are required to be given only to individuals who are incustody, and “[a]lthough givingMirandawarnings to adetainee may not automatically convert aTerrystop into anarrest, it is evidence that the nature of the detention has grownmore serious”). The most compelling factor may be OfficerSchubert’s telling the Gardenhires, at their store, that theywere going to be booked and released on bond once theyreached the Justice Center. We do not think a reasonableperson would believe he is free to leave after a police officerhas stated that he must go to a government center to be“booked” and that he would have to post bond to be released.InUnited States v. Obasa, 15 F.3d 603 (6th Cir. 1994),under facts similar to this case, this Court held that the policehad in fact “arrested” the suspect. InObasa, a police officerstopped a man in an airport, searched his clothing, gave himMirandawarnings and transported him to the police station ina police cruiser. The Court held that, although the policenever formally arrested the suspect, under these circumstancesthe officer had gone beyond a mereTerrystop and hadarrested the man. Except for the suspect’s transportation in apolice cruiser, the facts inObasaare nearly identical to thosepresented in this case. Indeed, the Gardenhires weretransported from their home, rather than an airport,implicating a higher level of intrusiveness.See Hayes, 470U.S. at 815-16.Additionally, the district court only considered theundisputed facts in making its arrest determination. There aredisputed facts, such as Ms. Gardenhire’s alleged attempt tocall a lawyer, which a jury should hear. The facts we have onNo. 98-6434Gardenhire, et al. v. Schubert195The Dissent finds that Chief Schubert should be granted qualifiedimmunity even if the information the Chief had at the time was notenough to justify an arrest of the Gardenhires. The Dissent reasons thatin 1996, when the Chief arrested the Gardenhires,Crisswas the "clearlyestablished law," and did not require police officers to investigate beforearresting an individual who was in possession of items that wereidentified as stolen.However, followingTerry v. Ohio, 392 U.S. at 30, also clearlyestablished law at the time of the incident, this Court finds that ChiefSchubert only had a reasonable suspicion of criminal activity whichwould only justify a brief investigatory detention.Id.Chief Schubert didnot have the requisite “reasonably trustworthy information” sufficient toPerhaps this investigation would reveal additional evidence oftheft sufficient to establish probable cause. But, standingalone, the woman’s mere allegation that the car was herswould not create probable cause that the man stole thePorsche.The foregoing hypothetical is almost identical to the factsin this case. Chief Schubert had the following informationwhen he began investigating the Gardenhires: that Mary DellaSala claimed that several items from her store were missing,and that these items were visible in the store-front windowsof the adjacent store. We believe a reasonable jury could findthat the police officers did not have probable cause to arrestthe Gardenhires on this information alone. Certainly, therewas enough evidence to justify aTerrystop; the police wereauthorized to ask the Gardenhires if the items belonged tothem, to inquire as to why the items were in their store, and togather information about the relationship between Ms. DellaSala and Ms. Gardenhire. But, Ms. Della Sala’s mereallegation that she owned the items in Ms. Gardenhire’s storefront was not enough to justify an arrest. Furtherinvestigation was necessary at that point. And if the officershad asked further questions, they would have learned that Ms.Gardenhire and Ms. Della Sala shared the facilities of bothstores and were in the process of trading store fronts. Suchinformation would lead a reasonable officer to consider thatsomething other than a theft – such as misplacement or asimple misunderstanding – had occurred.518Gardenhire, et al. v. SchubertNo. 98-6434street signs – a good almost impossible for private citizens toobtain legally – the police inCrisscould have been almostcertain thatsomeonein the house had committed a crime.Even if the officers had believed the suspect’s statement thathe had not stolen the signs, the suspect still could have beenguilty of other crimes, such as the receipt of stolen property,or aiding and abetting the theft. Here, if the Gardenhires’statements were true, it would mean that they were not guiltyof any crime. Moreover, there was evidence in addition to theGardenhires’ bare statements, that would lead a reasonableofficer to rethink whether the Gardenhires had committed acrime. The obvious placement of the supposedly stolen goodsand the common doorway between the shops should havetriggered at least a suspicion that the “theft” was not what itappeared.Unlike the street signs inCriss, the items in UniquelyYours are not the type that one must presume are stolen.Guitars, banjos, televisions and VCRs are commonly -- andlegally -- owned by countless people. In this case, all thepolice had was the bare allegation by Mary Della Sala thatthese items belonged to her. An allegation by one individualthat items in another’s possession actually belong to her is notenough to create probable cause that a crime has beencommitted. Consider the following situation: a woman flagsdown a police officer and points out a Porsche being drivenby a young man, which the woman claims is her car andwhich has been stolen by the man. Would the officer haveprobable cause to arrest the Porsche’s driver at that point?We think not. The officer would have a reasonable suspicionof criminal activity justifying a brief investigatory detentionpursuant toTerry v. Ohio, 392 U.S. at 30. But, without more,the officer would not yet have the requisite “reasonablytrustworthy information” sufficient to warrant a prudent manin believing that the young man driving the Porsche hadcommitted or was committing an offense.See Beck v. Ohio,379 U.S. at 91. Rather, the police officer would have theright and duty to detain and question the driver for a shorttime: to ask if the car was his, research his licence plate, andrequest to see his drivers licence, registration and insurance.No. 98-6434Gardenhire, et al. v. Schubert15the record before us are the mere skeleton of the story, whichmust be animated by the details of what happened when thepolice officers arrived at the Gardenhires home, spoke withthem at the police station and interacted with them later at thestore. Other relevant points of inquiry include how long theGardenhires were detained at the police station, and whatexactly the officers said to the Gardenhires at different pointsduring the investigation. Because no physical force wasapplied, the officers’ words at each location will be essentialin determining whether a reasonable person would have feltfree to leave. And, of course, the jury must decide the extentto which they believe the Gardenhires’ version of events.The issue of whether Chief Schubert arrested the Gardenhires,therefore, is one which must be presented to a jury.b. Whether Chief Schubert had probable cause toarrest the GardenhiresAny arrest, whether formal orde facto, requires probablecause.See Centanni,15 F.3d at 602. Thus, if a jurydetermines that Chief Schubert did arrest the Gardenhires, thenext inquiry must be whether he had probable cause to do so.Generally, probable cause exists when the police have“reasonably trustworthy information . . . sufficient to warranta prudent man in believing that the petitioner had committedor was committing an offense.”Beck v. Ohio, 379 U.S. 89,91 (1964). “Probable cause determinations involve anexamination of all facts and circumstances within an officer'sknowledge at the time of an arrest.”See Dietrich, 167 F.3dat 1012. “In general, the existence of probable cause in a§ 1983 action presents a jury question, unless there is onlyone reasonable determination possible.”Pyles v. Raisor,60F.3d 1211, 1215 (6th Cir. 1995). Here, viewing the facts ina light most favorable to the Gardenhires, we must determinewhether a jury could conclude that a reasonable officer couldhave believed that the couple had probably committed or werecommitting a crime. There is substantial evidence supportingeach party’s position.16Gardenhire, et al. v. SchubertNo. 98-64343Chief Schubert has never admitted that he believedat the time of hisinvestigationthat the Gardenhires were set up – despite the Gardenhires’claim to the contrary.4The Gardenhires argue that because Ms. Gardenhire and Ms. DellaSala were in the process of trading store-fronts, Chief Schubert had noprobable cause to believe the items found in Uniquely Yours were stolen.The couple has not, however, provided any evidence demonstrating thatChief Schubert was at any time made aware of the women’s businessarrangement.As the Gardenhires point out, there were factors present atthe time of the initial police investigation which may havemade it unreasonable for Chief Schubert to believe that theGardenhires had committed any crime. For example, theplacement of the allegedly stolen goods was suspicious. It isunlikely that one store owner would steal goods from anotherand then leave those goods in the window of her own storefront. In fact, based on where the goods were found, two ofthe initial investigating officials believed that the Gardenhireshad been set up: both Officer Davis and Magistrate Wheelerthought the alleged theft was a set-up. Even Chief Schubertadmits now that the placement of the items suggests that theGardenhires had not committed a theft.3And, theGardenhires tried to explain to the officers then that they hadnot committed a crime, but had been the victims of one. Theofficers did not bother to investigate the Gardenhires’ claim,which, in hindsight, appears to have been a reasonable one.4On the other hand, there was substantial inculpatoryevidence against the Gardenhires. The officers had receiveda report of theft and discovered the very items described inthat report in the Gardenhires’ store. The Gardenhiresadmitted to having a key to Ms. Della Sala’s store and tohaving Ms. Della Sala’s flamingo dish at their house.It is true, as the appellant notes, that inCriss v. City ofKent, 867 F.2d 259 (6th Cir. 1988), this Court found thatofficers in a similar situation did have probable cause to arrestthe suspect. InCriss, two police officers noticed, through theNo. 98-6434Gardenhire, et al. v. Schubert17open windows of an apartment, City of Kent street signshanging on the walls of the plaintiff’s living room. Theofficers went in and spoke with the plaintiff, who admittedthat he was a co-tenant of the house, and knew that the signswere hanging in his residence, but stated that they belongedto his roommate. The officers arrested him for receipt ofstolen property. In fact, the plaintiff’s roommate, alone, hadstolen the street signs. The plaintiff brought suit against theofficers, arguing that his innocence of the crime, combinedwith the officers’ failure to investigate his involvement, meantthere was no probable cause to arrest him. The Court foundthat the officers had probable cause to arrest the plaintiff. TheCourt reasoned:A suspect’s satisfactory explanation of suspiciousbehavior is certainly a factor which law enforcementofficers are entitled to take into consideration in makingthe determination whether probable cause to arrest exists.A policeman, however is under no obligation to give anycredence to a suspect’s story nor should a plausibleexplanation in any sense require the officer to foregoarrest pending further investigation if the facts as initiallydiscovered provide probable cause.Id. at 262. “To hold otherwise,” the Court explained, “wouldbe to allow every suspect, guilty or innocent, to avoid arrestsimply by claiming ‘it wasn’t me.’”Id.TheCrissdecisionechoes the Supreme Court’s prior reasoning inBaker v.McCollan, 443 U.S. 137 (1979), that “we do not think asheriff executing an arrest warrant is required by theConstitution to investigate independently every claim ofinnocence.”Id.at 145-56 (1979);see also Coogan v. City ofWixom, 820 F.2d 170 (6th Cir. 1987) (“Where there aresufficient facts to warrant a prudent person in a defendant’sposition to believe that a crime was committed and that theperson charged committed it, the failure to make a furtherinvestigation does not negate probable cause”).While instructive, however, theCrisscase is not entirelyanalogous to this one. Because the suspicious items were city