IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________

No. 97-30312

____________

Michael Wayne Vance,

Plaintiff-Appellee,

v.

R. Nunnery, Individually &

in his official capacity,

et al.,

Defendants,

R. Nunnery, Individually &

in his official capacity,

Defendant-Appellant.

____________________

Appeals from the United States District Court

for the Western District of Louisiana

____________________ March 16, 1998

Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

The pl aint iff, Michael W. Vance, brought suit under Section 1983 against Detective R.

Nunnery for the alleged violation of his Fourth Amendment rights. Vance claimed that Nunnery

possessed conclusive proof of his innocence for a burglary occurri ng o n April 5, 1995, but

nevertheless arrested him for that crime. After discovery, Nunnery moved for summary judgment on

the basis of qualified immunit y. The district court denied this motion. On interlocutory appeal,

Nunnery concedes that he lacked even arguable probable cause to ar r est Vance for the April 5th

burglary, but nonetheless asserts that he is entitled to qualified immunity because at the time of the

arrest, he had at least arguable probable cause to arrest Vance for a “related offense.” We conclude

that the related offense doctrine does not apply in this case, and that even if it did, Nunnery lacked

arguable probable cause to arrest Vance for th e purportedly related and uncharged offense.2

Accordingly, we affirm the district court’s denial of Nunnery’s motion for summary judgment.

I.

The district court’s denial of Nunnery’s motion for summary judgment on qualified immunit y

grounds is reviewed de novo under the same standards applied below. E llert v. University of Texas

,

52 F.3d 543, 545 (5th Cir. 1995). “Summary judgment is required when the evidence, viewed in the

light most favorable to the nonmoving party, presents no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law.” Id. Consequently, we set forth the facts

in the light most favorable to Vance.

In early April 1995, Nunnery, a detective in the Bossier Cit y Police Department, began

investigating a reported burglary at Alpha Storage on April 5th or 6th. According to the initial police

report, several items were taken from storage, including a desk, chair, nightstand, microwave, stereo,

and table.

On April 11, 1995, Nunnery condu ct ed a taped interview with Thea Winters. In that

interview, Winters claimed that Vance once told her that he had rented a U-Haul truck in his name,

used it to r emo ve it ems from Alpha Storage, and then pawned the goods at the River City Pawn

Shop. She did not, however, indicate when her conversation with Vance took place, when Vance

visited Alpha Storage, or whether Vance had the assistance of an accomplice.

On April 12, 1995, Nunnery interviewed Roberta Hill, a former Alpha Storage employee. In

her taped statement, Hill made a vague reference to the possibility of burglaries at Alpha Storage

occurring sometime before April 5th. She did not, however, know precisely when they had occurred,

or what, other than perhaps some televisions, had been stolen. Hill also informed Nunnery that one

month earlier, she had driven Vance and Willie Chism from a U-Haul rental office to Chism’s

mother’s house. According to Hill, Vance stated that he had rented a U-Haul truck that day to move

his friend, Chism. Hill did not, however, implicate Vance in any burglary at Alpha Storage, let alone

one occurring at the time of this U-Haul rental.

On April 19, 1995, Nunnery interviewed Willie Chism. During the course of this recorded3

interview, Chism stated that he and Vance had used a U-Haul truck to take two televisions and two

microwaves from the Alpha Storage facilit y on April 5, 1995. He claimed that Roberta Hill had given

Vance permission to remove these items, and that he and Vance did not take all the items listed as

missing in the init

ial police report regarding the April 5th burglary. Chism did not, however, mention

seeing Hill, or needing a ride from her, at any time after he and Vance allegedly left Alpha Storage.

Nunnery, moreover, failed to ask Chism whether the events he described might have occurred in

March instead of April.

N unnery did, however, attempt to corroborate partially the testimony of Winters and Hill.

With respect to Winters, Nunnery was unable to bolster her testimony because there was no record

of Vance having pawned any of the missing items at the River City Pawn Shop. With respect to Hill,

Nunnery failed to verify her vague ref erence to earlier burglaries at Alpha Storage: He never

determined whether or when any items, other than those listed in the init ial police report regarding

the April 5th burglary, had been taken from Alpha Storage. Nunnery did, however, obtain a U-Haul

receipt signed by Vance. Although the receipt is illegible and thus does not indicate a March 10th

rental date, Nunnery claims that Ms. Girshman, a U-Haul employee, examined the receipt and stated

that the truck was rented to Vance on March 10, 1995. This statement by Ms. Girshman, however,

was not recorded and was not mentioned in Nunnery’s investigation notes.

Based on the foregoing investigation, Nunnery obtained an arrest warrant for Vance on May

8, 1995. In his probable cause affidavit, Nunnery asserted that Vance was responsible for a burglary

occurring at A lpha St o rage “on or about the 5th day of April, A.D., 1995.” The affidavit did not

mention any earlier burglaries at Alpha Storage. Similarly, the arrest warrant charged Vance with the

“simple burglary” of Alpha Storage “on or about the fifth day of April A.D., 1995.” Thus, a judge

never determined that there was probable cause to arrest Vance for a burglary at Alpha Storage other

than the one that occurred on April 5th.

After obtaining the arrest warrant, Nunnery learned that Vance was residing at the Shreveport

Rescue Mission, a secured drug rehabilitation center. On June 16, 1995, Nunnery took Vance from1 Unlike her previous statement, however, this one was not recorded.

4 the mission to the Bossier police stati on for an interview. At the station, Nunnery questioned Vance

about the April 5th burglary only, for which Vance provided an alibi. Vance claimed, and Nunnery

immediately confirmed, that Vance had been residing at the Shreveport Rescue Mission from March

12th through the time of the April burglary. During the questioning, Hill arrived at the station and

identified Vance as the person she had described in her April 12th statement. According to Nunnery,

she also reiterated her still-unsubstantiated claim that there had been a “series” of earlier “break ins”

at Alpha Storage. 1 Nunnery then arrested Vance notwithstanding his alibi for the April 5th burglary.

In his arrest report, Nunnery noted that Vance had been “arrested on” the warrant charging him with

the simple burglary of Alpha Storage on or about April 5th.

Two weeks later, the charges were dropped and Vance was released. Vance then brought

suit against Nunnery and the police department under Section 1983, alleging that he was arrested in

violation of the Fourth Amendment. Nunnery has conceded that the arrest, when viewed as an arrest

for the April 5th burglary of Alpha Storage, was unconstitutional because he possessed conclusive

evidence of Vance’s innocence at the time of the arrest. C f. Sanders v. English

, 950 F.2d 1152, 1162

(5th Cir. 1992) (failing to release a person arrested on the basis of a valid warrant after learning of

his innocence is a constitutional violation) ; Gay v. Wall , 761 F.2d 175, 178-79 (4th Cir. 1985)

(same). In other words, notwithstanding the existence of the arrest warrant, Nunnery lacked probable

cause at the time he arrested Vance. C f. Franks v. Delaware

, 438 U.S. 154 (1978 ) (identifying

another circumstance where the existence of a warrant will n ot precl ude an arrestee from

demonstrating that the arrest was nevertheless unconstitutional be cause i t was not supported by

probable cause). Nonetheless, in his motion for summary judgment, Nunnery argued that he was

entitled to qualified immunit y, not because he met the constitutional requirements for arresting Vance

for the April 5th burglary, but because he had arguable probable cause to arrest Vance for a “related

offense”—a burglary that he believed occurred at Alpha Storage on March 10th. The district court2 Insofar as the parties disagree on the facts, these disputes have been resolved in Vance’s

favor for the purposes of this interlocutory appeal.

5 denied this motion because the “parties each submit[ted] different versions of the few relevant facts

[and] a case in such a posture is not properly disposed of by summary judgment.”

This Court has jurisdiction over Nunnery’s interlocutory appeal under 28 U.S.C. § 1291 as

interpreted by the Supreme Court in Behrens v. Pelletier

, 116 S. Ct. 834 (1996), Johnson v. Jones

,

115 S. Ct. 2151 (1995), and Mitchell v. Forsyth , 472 U.S. 511 (1985). Taken together, these

decisions demonstrate that although a public official asserting a qualified immunit y defense may not

seek interlocutory appellate review of a district court’s evidence sufficiency determination, he or she

may nevertheless argue on appeal that the facts, even when vie wed in the plaintiff’s favor,

demonstrate that the plaint iff’s constitutional rights were not violated or that the defendant’s conduct

was objectively reasonable in light of clearly established law. S ee Naylor v. Louisiana

, 123 F.3d 855,

857 (5th Cir. 1997); Coleman v. Houston Indep. Sch. Dist.

, 113 F.3d 528, 531 (5th Cir. 1997). Thus,

Nunnery’s contention—that the facts, when viewed in the light most favorable to Vance, show that

Nunnery’s conduc t was o bjectively reasonable—is one over which this court has interlocutory

jurisdiction. 2

II.

Nunnery argues that he intended to arrest Vance on June 16th, not for the April 5th burglary,

but for the March 10th burgl ary of Alpha Storage. He further contends that these two burglaries

constituted “related offenses” and that his arrest of Vance, when viewed as an arrest for the March

10th burglary of Alpha Storage, was, at a minimum, supported by arguable probable cause. Nunnery

thus concludes that even when the facts are viewed in Vance’s favor, they nonetheless show that he

is entitled to qualified immunity.

In this circuit, a police officer may not obtain qualified immunit y for an unconstitutional

warrantless arrest by claiming that he could have arrested the plaint iff for another offense unless two

conditions are satisfied. First, the charged and uncharged offenses must be “related.” Second, the6

arresting officer must demonstrate that there was arguable probable cause to arrest the plaintiff for

the uncharged related offense. S ee, e.g.

, Pfannstiel v. City of Marion

, 918 F.2d 1178 (5th Cir. 1990);

Gassner v. City of Garland

, 864 F.2d 394 (5th Cir. 1989); Trejo v. P erez , 693 F.2d 482 (5th Cir.

1982); cf. United States v. Atkinson

, 450 F.2d 835 (5th Cir. 1971) (applying the related offense

doctrine to salvage the legality of an arrest in a criminal proceeding).

To date, this court has identified only two settings in which a police officer may invoke the

related offense doctrine in order to obtain qualified immunit y for effecting a warrantless arrest and

charging a person with an offense that was not supported by arguable probable cause. First, in cases

where the arresting officer has made such an arrest based on conduct occurring in his presence, he

is entitled to qualified immunit y so long as the charged and uncharged offense, for which there was

arguable probable cause, each arose or stemmed from the observed conduct. See, e.g.

, Pfannstiel

,

918 F.2d at 1180 (holding that although the police officers may have improperly arrested Pfannstiel

for trespassing after he loudly and abusively questioned their authority, they were entitled to qualified

immunit y because Pfannstiel’s loud and abusive conduct provided them with arguable probable cause

to arrest him for disorderly conduct); Gassner

, 864 F.2d at 396-400 (holding that the police officer

was entitled to qualified immunit y because he had arguable probable cause to arrest Gassner for

disobeying the order of a police officer enforcing the traffic laws even though the district court found

that there was not arguable probable cause to arrest Gassner for the charged offen s e of disorderly

conduct); Trejo v. Perez , 693 F.2d at 485 (finding that although the police officer lacked probable

cause to arrest the plaint iff for disorderly conduct for using vulgar language in response to a request

for identification, he was entitled to raise the defense that he had arguable probable cause to arrest

the plaint iff for the related offense of failing to furnish the requested identification). Second, in cases

where the arresting officer has made such an arrest based on her “first-hand knowledge” of evidence

“gained as the result of personal investigation,” she is entitled to qualified immunit y so long as the

evidence providing arguable proba ble cause t o make an arrest for the uncharged offense also

suggested that the charged offense had been committed. See Atkinson , 450 F.2d at 838-39.7

The facts of this case, however, do not place Nunnery in either category. Unlike every police

officer who has successfully invoked the related offense doctrine, Nunnery did not make a warrantless

arrest. Instead, he arrested Vance on the basis of an arrest warrant t hat he knew was no longer

suppor t ed by probable or arguable probable cause. Moreover, because the charged offense—the

April 5th bur glary o f Alpha Storage—and the offense invoked to justify a finding of qualified

immunity—the alleged March 10th burglary of Alpha Storage—occurred outside Nunnery’s presence

on different dates, they are not properly related within the meaning of the line of cases exemplified

by G assner : A simple burglary occurring on April 5th, cannot at the same time also const it ut e a

simple burglary on March 10th. Further, although he conducted a personal investigation, Nunnery

may not rely on our decision in Atkinson

. Unlike the police officer in Atkinson , who corroborated

the critical components of an informant’s tip, Atkinson

, 450 F.2d at 838, Nunnery lacked “first-hand

knowledge” of much of the evidence allegedly connecting Vance to the charged and uncharged

offenses because he failed to corroborate several c ri ti cal witness statements, including Hill’s testimony

that a burglary had taken place at Alpha Storage in early March. S ee infra

. More importantly, unlike

the evidence relating to the uncharged offense in Atkinson

, wh ich made it more likely that the

[charged offense] had been, or was being committed,” id. at 839, the evidence that Nunnery collected

and relied on to connect Vance to the alleged March 10th burglary not only failed to point to Vance’s

involvement in the April 5th burglary, it actually excluded the possibility that Vance had committed

both the charged and uncharged offense.

Nunnery, moreover, may not seek refuge in the decisions of our sister circuits. He has not

identified, and we have not found, a court of appeals decision applying the related offense doctrine

in a manner broad enough to cover the facts of this case. Instead, t he other federal circuits have

allowed police officers to invoke this doctrine under circumstan ces similar to those in P fannstiel

,

Gassner , and Trejo

. See, e.g.

, Avery v. King , 110 F.3d 12, 14-15 (6th Cir. 1997) (noting that the

defendant police officer lacked probable cause to arrest the plaint iff for the charged offense of forcibly

impeding a police officer, but nonetheless awarding the defendan t qualified immunity because the8

plaint iff’s conduct provided him with probable cause to make a warrantless arrest for the related and

uncharged offense of willfully obstructing a police officer); Gasho v. United States

, 39 F.3d 1420,

1428 n.6 (9th Cir. 1994) (“P ro bable cause may still exist for a closely related offense, even if that

offense was not invoked by the arresting officer, as long as it involves the same conduct for which

the suspect was arrested.”); Biddle v. Martin

, 992 F.2d 673, 676-77 (7th Cir. 1993) (noting that the

doctrine has been applied in cases where a police officer lacked probable cause to make a warrantless

arrest for charged offense based on conduct occurring in his presence but neverthele ss possessed

arguable or actual probable cause to make a warrantless arrest for an uncharged offense arising from

this same conduct).

Although he recognizes that the application of the related offense doctrine in this case would

constitute a substantial departure from the settled practice of this and other circuits, Nunnery notes

that the definition of “related” has been left “for case law developme nt.” Trejo , 693 F.2d at 486.

Accordingly, he urges us to conclude that if his investigation created arguable probable c ause to

arrest Vance for any crime, then this uncharged offense is necessarily rel ated to the offense wi th

which Vance was charged. We decline Nunnery’s invitation to expand dramatically the reach of the

related offense doctrine to encompass the facts of this case.

The decisions of this court and the o t her courts of appeals applying the related offense

doctrine represent a carefully constructed “compromise” between two competing concerns. The first,

that police officers making warrantless arrests should not be forced “‘to routinely charge every citizen

taken into custody with every offense that they thought he could be held for in order to increase the

chances that at least one charge would survive the test for probable cause.’” T rejo

, 693 F.2d at 485

(quoting Atkinson

, 4 5 0 F.2d at 838). The second, that police officers should not be allowed “to

justify what from the outset may have been actually sham or fraudulent arrests on the basis of ex post

facto justifications that turn out to be valid.” G assner

, 864 F.2d at 398. By limit ing t he availabilit

y

of the related offense doctrine to cases like Gassner and At kinson , t he federal courts have both

grasped the realities of modern law enforcement and protected our Fourth Amendment freedoms.3 We also note that because a police officer who makes an arrest on the basis of a facially

valid arrest warrant will in most cases be entitled to qualified immunit y, see, e.g.

, Hamill v. Wright

, 870 F.2d 1032 (5th Cir. 1989); cf. Velardi v. Walsh , 40 F.3d 569, 573 (2d Cir. 1994) (stating that

when an arresting “officer knows, or has reason to know, that he has materially misled a magistrate

on the basis for a finding of probable cause,

. . . the shield o f immunity [afforded by a warrant] is

lost”), the invocation of the related offense doctrine will almost always be unnecessary under these

circumstances.

9 To allow Nunnery to invoke the related offense d o ct rine in this case, however, would

unjust ifiably tilt this balance in favor of qualified immunit y. In part, this is because Nunnery, unlike

those raising a related offense defense before him, made his arrest on the basis of a warrant. A police

officer who obtains an arrest warrant and then intentionally arrests someone he knows to be innocent

should not benefit from a doctrine designed to protect police officers from civil liabilit y for reasonable

mistakes in judgment made when they effect warrantless arrests for conduct they believe is criminal

based on their observations or “first-hand knowledge.” 3 More importantly, there is circumstantial

evidence in the record that Nunnery may be “indulg[ing] in [an] ex post facto extrapolation[] of all

crimes that might have been charged on a given set of facts at the moment of a rrest,” which i s an

exercise that this court does not “look favorably upon.” Atkinson

, 450 F.2d at 83 8. For example,

notwithstanding the fact that Nunnery was aware of some evidence purportedly connecting Vance

to an alleged March 10th burglary at the time he interviewed Chism, he never asked Chism whether

the events he described might have occurred in March rather than April. Moreover, both the probable

cause affidavit and the arrest warrant failed to mention the possibility o f a March 10th burgl ary

.

Further, the only evidence that Vance rented a U-Haul on March 10t h is a statement by a U-Haul

employee to Nunnery, which Nunnery failed to document in his investigation report. Finally, Nunnery

failed to verify Hill’s vague reference to a prior burglary at Alpha Storage before arresting Vance.

In sum, to apply the related offense doctrine in these circumstances would unduly expand the practical

foundation of the police protecti ons built into this doctrine and could unduly narrow the scope of the

Fourth Amendment’s protection against sham arrests.

In light of these concerns, we decline to depart from our settled practice and substantially10

broaden the related offense doctrine to encompass the facts of this case. We therefore hold that

Nunnery is not entitled to qualified immunit y for his unconstitutional arrest of Vance because the

uncharged offense for which he claims to have had arguable probable cause was not properly related

to the charged offense for which he lacked probable cause. Although there may be cases where the

definition of a related offense should be expanded beyond its current boundaries in order to provide

a police officer with qualified immunity, this is not one of them.

We also note that even if the alleged March 10th and April 5th burglaries were properly

related, Nunnery would not be entitled to qualified immunit y. This is because the facts, when viewed

in the light most favorable to Vance, demonstrate that Nunnery lacked arguable probable cause to

arrest him for the March 10th burglary. S ee Bab b v. Dorman , 33 F.3d 472, 477 (5th Cir. 1994)

(noting that qualified immunity will attach upon a finding of arguable probable cause).

The existence of probable cause is not determined by reference to a precise formula. Instead,

probable cause is present “when the totality of the facts and circumstances within a police officer’s

knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect

had committed or was committing an offense.” U nited States v. Levine

, 80 F.3d 129, 132 (5th Cir.

1996). Thus, if a reasonable police officer standing in Nunnery’s shoes at the time he arrested Vance

could have believed that the re was probable cause to arrest Vance for the March 10th burglary of

Alpha Storage, then Nunnery would be entitled to qualified immunit y. S ee Gassner

, 864 F.2d at 398.

A reasonable officer, however, co uld not conclude that there was probable cause to arrest

Vance for a March 10th burglary at Alpha Storage based on Nunnery’s inve stigation. Thi s

investigation revealed that, according to Hill, Vance used a U-Haul truck on or near this date to help

move Chism. Nunnery was also aware of Winters’s claim that Vance told her he had used a U-Haul

to remove items from Alpha Storage, although she did not relate the dates of her conversation with

Vance nor his trip to Alpha Storage. In fact, Winters’s testimony failed to connect Vance t o a

burglary on March 10th because Nunnery’s investigation did not produce evidence that Vance had

pawned any goods at the Riverside Pawn Shop near this date. Chism’s testimony likewise failed to11

connect Vance to a March 10th burglary, although it did implicate him in a possible burglary on April

5th at Alpha Storage invo lving a U-Haul truck. Nunnery, however, failed to ask Chism whether the

events he described as taking place on April 5th might actually have occurred on or about March

10th. Further, because Chism’s description of the events immediately following the removal of items

from Alpha Storage did not match Hill’s description of the events surrounding Vance’s U-Haul rental

in March, Chism’s statement did not even provide Nunnery with a basis for inferring that the events

he related took place on March 10th.

Notwithstanding the shortcomings in the Hill and Chism testimony, had there been evidence

of a burglary at Alpha Storage on March 10th, we would be faced with the close question of whether

Nunnery had arguable probable cause to arrest Vance based on the preliminary result s o f his

investigation. But there was no evidence that a burglary or any other crime actually occurred at

Alpha Storage on March 10th. Hill’s vague reference to earlier “break ins” at Alpha Storage would

not support a reasonable belief in the existence of a burglary on that date, for she did not state with

any specificity when these alleged burglaries had occurred, who had been robbed, and what had been

taken. In addition, Nunnery failed to investigate the existence of these burglaries and thus did not

know, at the time he arrested Vance, whether and when anything had been stolen from Alpha Storage

in March. The exact date of these alleged burglaries, however, is a critical component of Nunnery’s

arguable probable cause claim, for Vance began staying at the Shreveport Rescue Mission on March

12th. Faced with this lack of crucial information, a reasonable officer standing in Nunnery’s shoes

at the time of Vance’s arrest would have been suspicious of Vance but could not have reasonably

concluded that there was probable cause to arrest him for a March 10th burglary. Rather than making

an arrest, a reasonable officer would have continued his invest igat ion. Nunnery, therefore, is not

entitled to qualified immunit y on the grounds that he had arguable probable cause to arrest Vance for

the offense of a March 10th burglary at Alpha Storage.

III.

For the foregoing reasons, the judgment of the district court is AFFIRMED.