                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2000

Wilson v. Russo
Precedential or Non-Precedential:

Docket 98-5283




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Filed May 19, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-5283

FRANKLIN WILSON, Appellant

v.

DARRIN J. RUSSO, INDIVIDUALLY AND AS A POLICE
OFFICER OF THE FRANKLIN TOWNSHIP POLICE
DEPARTMENT, SOMERSET COUNTY, NEW JERSEY;
CLEMENT WORONIECKI, INDIVIDUALLY AND AS A
POLICE OFFICER OF THE FRANKLIN TOWNSHIP POLICE
DEPARTMENT, SOMERSET COUNTY, NEW JERSEY;
FRANKLIN TOWNSHIP POLICE DEPARTMENT, SOMERSET
COUNTY, NEW JERSEY; TOWNSHIP OF FRANKLIN,
SOMERSET COUNTY, NEW JERSEY; JOHN DOES, 1-15,
represent 1 or more employees or agents of defendant,
Franklin Township Police Department who, singly or in
combination participated in the unlawful search, false
arrest and false imprisonment of the plaintiff; 16-30,
represent 1 or more employees or agents of said
defendant who, singly or in combination participated in
the supervision and training of the defendants, Russo,
Woroniecki, and John Does 1-15; 31-45, represent 1 or
more employees or agents of defendant, Township of
Franklin who, singly or in combination, participated in
the supervision and training of said individual defendants.

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 97-cv-00546)
District Judge: Honorable Mary Little Cooper
Argued: November 4, 1999

Before: BECKER, Chief Judge, GARTH, Circuit Judges
and POLLAK,* District Judge

(Filed: May 19, 2000)

         IRINA ELGART, ESQUIRE (ARGUED)
         Wolff & Samson
         5 Becker Farm Road
         Roseland, NJ 07068

         LOUIS S. RAVESON, ESQUIRE
         Urban Legal Clinic, Rutgers-Newark
         15 Washington Street
         Newark, NJ 07102

         Counsel for Appellant

         RICHARD J. GUSS, ESQUIRE
          (ARGUED)
         Bivona, Cohen, Kunzman, Coley,
          Yospin, Bernstein & DiFrancesco
         15 Mountain Blvd.
         Warren, NJ 07059

         Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

Franklin Wilson was arrested and spent a month in jail
for an armed robbery he did not commit. As plaintiff in this
civil rights lawsuit arising under 42 U.S.C. S 1983, he
claims that his arrest and subsequent incarceration
violated his federal and state constitutional rights to be free
from arrest and detention without probable cause. The crux
of his claim is that the arresting officer, defendant Darrin J.
_________________________________________________________________

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

                                 2
Russo, both lied and omitted material facts during his
application for Wilson's arrest warrant. Russo told the
judge that two victims, who each had ample opportunity to
view the robber, had stated that the assailant was between
6'3" and 6'5". Russo did not, however, tell him that
Wilson's driving abstract showed him to be 5'11". Nor did
Russo tell the judge that one of these eyewitnesses did not
identify Wilson when shown a photographic array. What he
did tell him was that the other victim positively identified
Wilson, and that someone else had seen Wilson in the
vicinity near the time of the robbery. Wilson urges us to
decide that Russo omitted the exculpatory facts with
"reckless disregard for the truth" and that the warrant
affidavit would not have established probable cause if the
officer had been more forthcoming.

The District Court found that Russo had qualified
immunity and granted summary judgment in his favor. In
evaluating a claim that an officer both asserted and omitted
facts with reckless disregard for the truth, we hold that: (1)
omissions are made with reckless disregard for the truth
when an officer recklessly omits facts that any reasonable
person would know that a judge would want to know; and
(2) assertions are made with reckless disregard for the truth
when an officer has obvious reasons to doubt the truth of
what he or she is asserting. Viewing the facts in the light
most favorable to the plaintiff, we conclude that Russo
acted in reckless disregard for the truth in some, but not
all, of his omissions and assertions to the judge. However,
since none of these misstatements or omissions were
material, in that the warrant would have established
probable cause even if Russo had not made them, we
conclude that Wilson's right to be free from arrest without
probable cause was not violated. Therefore, we affirm the
grant of summary judgment.1
_________________________________________________________________

1. Wilson also appeals the District Court's grant of summary judgment to
the officer who initiated the investigation, Clement Woroniecki, who, he
alleges, violated his rights by inadequate and sloppy investigation.
However, there is insufficient evidence in the record that Woroniecki's
actions effected a deprivation of Wilson's rights, let alone an
unconstitutional deprivation. As we discuss further infra at note 5,
negligent police work, even if proven, does not violate the due process

                               3
I. Facts and Procedural History

A. The Robbery and Preliminary Investigation

On February 3, 1995, Officers Lipp and Woroniecki of the
Franklin Township (New Jersey) Police Department
responded to a call reporting an armed robbery at the Great
Expressions Floral Shop in the Franklin Towne Center.
Detective Woroniecki interviewed Renee Braverman, the
owner of the shop, and Graham Druce, an employee in the
shop. They both said that the robber was in the store from
a little before 3:00 pm until approximately 3:50 pm. When
the robber entered the shop, Braverman was discussing a
bridal order with a customer. Several times during the
robber's visit, Druce approached him and asked him if he
needed assistance, which he repeatedly declined. The bridal
order customer left around 3:50, and the robber brought a
glass vase and candle to the counter, behind which
Braverman was standing. The robber asked Druce, who
was standing in the back room, if the candle would cause
the glass vase to break. When Druce walked towards the
counter the robber put his left hand on Druce's right
shoulder and told Braverman to empty the register quickly
and put the money in a brown paper bag along with the
candle and vase. Druce and Braverman both said they saw
a small revolver in his right hand.

Braverman, a white woman who is "around five six,"
described the robber as a light skinned black male,
approximately 30 years old, "very tall," between 6'2" and
6'4", between 190 and 200 pounds, with black wavy hair,
a waist-length light denim jacket, cream colored sweater,
and blue denim jeans. Druce, a "five-five,five-six" white
man, described the robber as a "very tall male, light black
in color, his middle 20s, about 25, about 6'5" tall, maybe a
_________________________________________________________________

clause. We will therefore affirm the District Court's grant of summary
judgment for Woroniecki without further discussion.

Wilson originally sued the Franklin Township Police Department and
the Township of Franklin, but he did not appeal the District Court's
grant of summary judgment as to those parties.

                                  4
little bit taller." He told the police the robber had an athletic
build, was clean shaven, had well groomed short hair and
was wearing a blue denim jacket, blue denim jeans, and
sneakers. Druce said that if he saw a picture of the robber
he was absolutely certain he could pick him out because of
his noticeable height.

Detective Bisignio, also of the Franklin Township Police,
canvassed the area for witnesses. Kelly N. DaVila, who
worked in a nearby dental office, told him that she had
seen a dental patient named Franklin Wilson in the
Franklin Center, walking away from the Mayfair Foodtown
Area towards a pizza shop after 3:00 that day, "probably
about a half hour" before the police officers arrived (making
her estimated viewing around 3:30). She described Wilson
as a 6'0" tall, clean shaven, thin, light-skinned black man
with brown hair and brown eyes. She told Bisignio that he
had some entanglement with heroin because his dental
records indicated that he was seeking methadone
treatment.

Bisignio relayed this information to Woroniecki, who
conducted a criminal history and Department of Motor
Vehicles (DMV) check of Wilson. The criminal history report
listed Wilson as being 5'10" and weighing 160 pounds. The
DMV record apparently listed him as being 5'11".
Woroniecki received a photograph of Wilson from the
Middlesex County Identification Bureau, which he took to
the Somerset County Sheriff 's Office in order to compile a
photographic lineup. The office compiling the photographic
array was apparently not aware of the physical descriptions
of the witnesses. On the afternoon of February 6,
Woroniecki fell ill and ceased all involvement in the
investigation of the floral shop robbery.

Detective Russo took over the investigation. On February
6, he was provided with Officer Lipp's report and the
photographic array from the Somerset County Sheriff 's
Office. Lipp's report includes a summary of the robbery and
a description of the robber that combined the Druce and
Braverman physical descriptions. The report identifies the
robber as between 6'3" and 6'5". It does not mention
DaVila's assertion that she saw Wilson. Russo claimed that
he did not review any other officer's notes. He testified that

                               5
he reviewed and authorized the photographic array without
knowing what the witnesses had said about the robber.

Russo showed the photographic array to Braverman and
Druce individually. He told them each that the robber
might not be in the array, and that if they were to identify
anyone they must be one hundred percent certain that the
person they were identifying was the person who robbed
them. Braverman immediately selected Wilson's photograph
as representing the robber. Druce studied the array for
about two minutes, indicating no recognition, andfinally
concluded that he could not say with certainty that he
recognized the robber among them.

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

B. The Arrest Warrant Application, Arrest, and
         Initiation of Suit

Russo met with a prosecutor and reviewed the facts
before the two of them sought a search warrant from
Superior Court Judge Dilts. Through his responses to the
questions of the prosecutor, Russo informed Judge Dilts
that two witnesses had described the robber as a light
skinned black male "six-three to six-five." He did not tell
him that Wilson's driver's abstract stated that he was 5'11",
or that his criminal history report stated that he was 5'10".
Russo also represented that he had created a photographic
array "as a result of the physical descriptions." This is
contrary to what the record indicates, which is that those
making the photo array had the photograph of Wilson, but
were never told of the victims' descriptions of the robber. He
told the judge that the owner of the florist shop
unequivocally picked Wilson out of a photo lineup. He did
not tell him that the other witness had failed to identify

                               6
Wilson as the robber when shown the same photo array.
Russo stated that an employee of a nearby dentist's office
who recognized Wilson had seen him around three o'clock.
He did not inform the judge that she had stated that she
saw Wilson around 3:30, by which time the robber was
already in the shop.

We also note that Russo answered the prosecutor's
questions as if he had been there himself, suggesting that
he had been the primary investigator and interviewer at the
scene of the crime. He did not tell the judge that, in the
photo array, Wilson looked ethnically different from the
others.2 Russo also did not inform the judge that height
and weight were not indicated on the photo lineup.

On the basis of Russo's testimony, Judge Dilts issued a
warrant of arrest and to search for evidence. Russo
executed the warrant the evening of February 6. Wilson was
incarcerated for a month, after which the Somerset Grand
Jury refused to indict him. Thereafter, he brought this suit
against Russo, Woroniecki, and the Franklin Township
Police Department under 42 U.S.C. S 1983, alleging that his
Fourth, Fourteenth, and Fifth Amendment rights were
violated, as well as his rights under the New Jersey
Constitution, and the New Jersey common law. The
defendants moved for summary judgment, and the District
Court granted the motion.3 Wilson appealed.
_________________________________________________________________

2. We note this omission not because we think there was a marked
difference in appearance, but because Wilson's briefs focus on it. As we
discuss infra, our independent review of the photographic array satisfies
us that although Wilson has slightly different features than the other
five
faces pictured, no reasonable jury could find that the difference was
significant or prejudicial.

3. The District Court did not address the officers' motion for summary
judgment on the state law claims in its decision. Therefore, although we
will affirm the grant of summary judgment on the federal claims, we will
remand to the District Court so that it may evaluate the state claims and
determine whether or not to retain jurisdiction of them under 28 U.S.C.
S 1367(c).

                                7
II. The Right to Be Free of Unlawful Arrest

To recover under 42 U.S.C. S 1983, Wilson must
establish that a state actor engaged in conduct that
deprived him of "rights, privileges, or immunities" secured
by the constitution or laws of the United States. See Kneipp
v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Because
Russo has fairly raised a qualified immunity defense,
Wilson has a further burden. According to the doctrine of
qualified immunity, law enforcement officers acting within
their professional capacity are generally immune from trial
"insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known." Wilson v. Layne, 119 S.Ct.
1692, 1699 (1999) (quoting Harlow v. Fitzgerald , 457 U.S.
800, 818 (1982)).

The qualified immunity defense requires that we engage
in a two-step analysis. First, we must "determine whether
the plaintiff has alleged the deprivation of an actual
constitutional right at all." Conn v. Gabbert , 119 S. Ct.
1292, 1295 (1999). Only if he has should we "proceed to
determine whether that right was clearly established at the
time of the alleged violation." Id. Summary judgment is
appropriate if no reasonable juror could conclude that
Wilson's clearly established rights were violated. See Orsatti
v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995).

This does not mean that the jury determines the
contours of the right. Rather, after making a legal
determination about the existence of a right, and whether
it is clearly established, we determine whether the facts on
the record are such that a jury could conclude that the
clearly established right was violated. See id. As a
methodological matter, we commonly work backwards: We
arrange the facts in the light most favorable to the plaintiff,
and then determine whether, given precedent, those"facts,"
if true, would constitute a deprivation of a right. And then,
if necessary, we determine if the right is clearly established.
In this case, since we conclude that Wilson has not
adduced facts from which a jury could conclude that his
constitutional rights were deprived at all, we need not
engage in the second inquiry.

                               8
Wilson contends that he was arrested without probable
cause in violation of his Fourth Amendment right to be free
from unreasonable seizure. He acknowledges that he was
arrested pursuant to a warrant, but claims that the
warrant was not supported by probable cause. However,
the statements given to Judge Dilts by Officer Russo clearly
establish probable cause: He was told that a robbery had
taken place; that the descriptions of the victims were used
to compile a photo array; that one of the victims had
quickly and positively identified the suspect from the photo
array; and that an employee in a nearby establishment had
seen Wilson in the vicinity near the time he supposedly
entered the flower shop. See infra Section I.B.

In light of these facts, the only way that Wilson can
succeed is if he proffers evidence that Russo recklessly
disregarded the truth in his warrant application, and that
a warrant application based on what Russo should have
told the judge would have lacked probable cause. As this
recitation suggests, an arrest warrant issued by a
magistrate or judge does not, in itself, shelter an officer
from liability for false arrest. See Sherwood v. Mulvihill, 113
F.3d 396, 399 (3d Cir. 1997). Rather, a plaintiff may
succeed in a S 1983 action for false arrest made pursuant
to a warrant if the plaintiff shows, by a preponderance of
the evidence: (1) that the police officer "knowingly and
deliberately, or with a reckless disregard for the truth,
made false statements or omissions that create a falsehood
in applying for a warrant;" and (2) that "such statements or
omissions are material, or necessary, to the finding of
probable cause." Id.4

A. Reckless Disregard for the Truth

With these precepts in view, we must first consider
whether Wilson adduced sufficient evidence that a
_________________________________________________________________

4. Wilson argues that because a jury could conclude that Russo lied,
Russo loses the protection of qualified immunity regardless of the import
of the lie. Adopting his argument would not affect the result in this case
because we ultimately conclude that even if Russo had been perfectly
straightforward in his warrant application, there would have been
probable cause to arrest Wilson.

                               9
reasonable jury could conclude that Russo made
statements or omissions that he "knew [were] false, or
would have known [were] false except for his reckless
disregard for the truth." United States v. Leon, 468 U.S.
897, 923 (1984); cf. Franks v. Delaware, 438 U.S. 154
(1978). In Franks, the Court held that where a defendant
showed by the preponderance of the evidence that a false
statement necessary to the finding of probable cause was
made "knowingly and intentionally, or with reckless
disregard for the truth," the constitution requires that any
evidence derived from the exercise of that warrant had be
excluded from a criminal trial. Id. at 155. But as the Court
of Appeals for the District of Columbia Circuit has
lamented, "[u]nfortunately, the Supreme Court in Franks
gave no guidance concerning what constitutes a reckless
disregard for the truth in fourth amendment cases, except
to state that `negligence or innocent mistake[is]
insufficient.' " United States v. Davis , 617 F.2d 677, 694
(D.C. Cir. 1979) (quoting Franks, 438 U.S. at 171). This
case, with its hybrid allegation (Russo purportedly doctored
some facts and failed to inform the judge of others) requires
us to acknowledge that reckless disregard for the truth
means different things when dealing with omissions and
assertions, and to explain the different methodologies for
dealing with each.

1. Omissions

All storytelling involves an element of selectivity. We
cannot demand that police officers relate the entire history
of events leading up to a warrant application with every
potentially evocative detail that would interest a novelist or
gossip (". . . the witness blushed when I mentioned the gun,
and blinked six times while studying the photographic
array. I noticed his hand crept up to his lips (which were
chapped) . . ."). On the other hand, one of the reasons for
requiring a neutral magistrate to evaluate probable cause is
that an uninterested party is presumably better suited to
review and evaluate the facts than an officer pursuing a
lead. "The point of the Fourth Amendment, which often is
not grasped by zealous officers, is not that it denies law
enforcement the support of the usual inferences which

                               10
reasonable men draw from evidence. Its protection consists
in requiring that those inferences be drawn by a neutral
and detached magistrate instead of being judged by the
officer engaged in the often competitive enterprise of
ferreting out crime." Johnson v. United States, 333 U.S. 10,
13-14 (1948) (cited in Payton v. New York, 445 U.S. 573,
586 n.24 (1980)). It follows that a police officer cannot
make unilateral decisions about the materiality of
information, or, after satisfying him- or herself that
probable cause exists, merely inform the magistrate or
judge of inculpatory evidence.

Recognizing the tension between the extreme models that
could arise if either of these competing concerns were taken
alone--requiring a police officer to tell all, and permitting a
police officer to independently determine materiality--we
follow the common sense approach of the Court of Appeals
for the Eighth Circuit and hold that omissions are made
with reckless disregard if an officer withholds a fact in his
ken that "[a]ny reasonable person would have known that
this was the kind of thing the judge would wish to know."
United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.
1993). In Jacobs, the court concluded that the officer acted
with reckless disregard when he told the magistrate that a
drug sniffing dog showed "interest" in the bag of the
defendant but failed to inform the magistrate that it had
not gone into "alert." Id. at 1234."Because of the highly
relevant nature of the omitted information," the court held
that "the omission occurred at least with reckless disregard
of its effect upon the affidavit." Id.

Russo alleges that Wilson made the following omissions
in his warrant application: (1) he did not tell the judge that
although Officer Lipp's investigative report stated that the
robber was between 6'3" and 6'5", Wilson's driver's abstract
indicated that he was 5'11"; (2) he did not tell the judge
that Druce did not pick Wilson out of an array; (3) he did
not tell the judge that in the photo array, Wilson looked
ethnically different from the others; and (4) he did not
mention that height and weight were not indicated on the
photo array.

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

                               11
that the significant height differential, and the fact that an
eyewitness-victim did not identify Wilson, were"the kind of
thing[s] the judge would wish to know." Jacobs, 986 F.2d at
1235. On the other hand, we do not believe that an officer
can be expected to communicate the apparent ethnicity of
the victim, or slight variations in appearance on the
photographic line-up absent circumstances making these
factors more important or prejudicial. Finally, the fact that
height and weight were not listed on the photo array is so
routine as to be unremarkable to a judge. Although these
latter facts could be used for impeachment at trial, a police
officer cannot be expected to present a judge with complete
background.

2. Assertions

Unlike omissions, assertions can be made with reckless
disregard for the truth even if they involve minor details--
recklessness is measured not by the relevance of the
information, but the demonstration of willingness to
affirmatively distort truth. In applying the reckless
disregard test to assertions, we have borrowed from the free
speech arena and equated reckless disregard for the truth
with a "high degree of awareness of [the statements']
probable falsity." Lippay v. Christos, 996 F.2d 1490, 1501
(3d Cir. 1993) (quoting Garrison v. Louisiana , 379 U.S. 64,
74 (1964)); see also United States v. Clapp, 46 F.3d 795,
800 (8th Cir. 1995) (reckless disregard for the truth is
exhibited when expressing that which was not "believed or
appropriately accepted" as true). An assertion is made with
reckless disregard when "viewing all the evidence, the
affiant must have entertained serious doubts as to the
truth of his statements or had obvious reasons to doubt the
accuracy of the information he reported." Clapp, 46 F.3d at
801 n.6.

Applying these tests to this case, Russo had reasons to
"doubt the accuracy" of his intimation that he had
personally investigated the entire case and interviewed the
witnesses after the robbery. More importantly, a jury could
conclude that Russo "must have entertained serious doubts
about the truth of his statement" that the dental worker
had seen Wilson around 3:00, instead of around 3:30.

                               12
Because he told the judge about DaVila's identification,
Russo must have learned of DaVila's statement from
somewhere; a jury could infer that he learned of it from the
transcript of DaVila's statement or a complete report, either
of which would include her statement that she saw Wilson
about a half an hour before the police arrived, which would
place her sighting at about 3:30. If Russo knew of the time
difference, he had "obvious reasons to doubt" his assertion
to the judge that a witness saw Wilson around 3:00.

As to the other information from the other officers'
reports, Wilson did not adduce any evidence that Russo
would have examined these reports as a matter of course or
policy, or any evidence from which a jury could infer
knowledge of their content. Moreover, there is no evidence
that Russo knew that the array was developed from
Wilson's photo alone. Therefore, a jury could not conclude
that his representation that the array was made"as a
result of the physical descriptions" was made with reckless
disregard of the truth.5

B. Materiality

Since there was sufficient evidence of omissions and
assertions made knowingly, or with reckless disregard for
the truth, we turn to the next step of the reconstructive
surgery required by our jurisprudence, and assess whether
the statements and omissions made with reckless disregard
of the truth were "material, or necessary, to thefinding of
probable cause." Sherwood, 113 F.3d at 399.6 To determine
_________________________________________________________________

5. Wilson also attempts to inject a due process argument into what is
primarily a fourth amendment claim, arguing that the officers were
negligent in their investigation. However, negligence by public officials
is
not actionable as a due process deprivation of a civil right. See Orsatti
v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995) ("[T]he issue
is not whether the information on which police officers base their request
for an arrest warrant resulted from a professionally executed
investigation; rather, the issue is whether that information would
warrant a reasonable person to believe that an offense has been or is
being committed by the person to be arrested."); see also Daniels v.
Williams, 474 U.S. 327 (1986); Colburn v. Upper Darby Township, 946
F.2d 1017 (3d Cir. 1991)).

6. Wilson submits that even if the statements are not material, he should
at least get nominal damages for Russo's failure to provide the judge

                               13
the materiality of the misstatements and omissions, we
excise the offending inaccuracies and insert the facts
recklessly omitted, and then determine whether or not the
"corrected" warrant affidavit would establish probable
cause. See Sherwood, 113 F.3d at 400. If it does, the grant
of summary judgment should be affirmed, for even if there
had not been omissions and misrepresentations in Russo's
presentation to Judge Dilts, Wilson would have been
arrested.

Probable cause exists if there is a "fair probability" that
the person committed the crime at issue. See Sherwood,
113 F.3d at 401. "Probable cause to arrest exists when the
facts and circumstances within the arresting officer's
knowledge are sufficient in themselves to warrant a
reasonable person to believe that an offense has been or is
being committed by the person to be arrested." Orsatti, 71
F.3d at 483. A police officer may be liable for civil damages
for an arrest if "no reasonable competent officer" would
conclude that probable cause exists. Malley v. Briggs, 475
U.S. 335, 341 (1986).
_________________________________________________________________

with exculpatory information. He relies on the Supreme Court's decision
in Carey v. Piphus, 435 U.S. 247, 266 (1978), which stated that a
violation of procedural due process was actionable without a need to
prove actual injury, or actual damages. See also Smith v. Chicago, 913
F.2d 469, 472-73 (7th Cir. 1990). In Smith, the court held that actual
damages for improvident police work leading to arrest was inappropriate
because probable cause existed, so that no actual harm flowed from the
recklessness, but allowed the award of nominal damages of $1 for the
due process violation. See also Sutton v. Board of Education, 958 F.2d
1339, 1352 (6th Cir. 1992) ("The denial of procedural due process is
actionable for nominal damages without proof of actual injury."). On the
strength of these cases, Wilson argues that Russo's omissions and
fabrications are a harm independent of the injury of arrest. Although we
find the argument interesting, we would not address it today even if we
found its requirements met, because it was not raised in the complaint,
at the district court level, or even in the opening briefs on appeal.
Harris
v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994) (issues raised
for
the first time on appeal will not be considered). It was articulated for
the
first time in supplemental letter memoranda sent to the court less than
a month before oral argument.

                               14
The defendants maintain that a positive identification by
a victim is sufficient by itself to establish probable cause
that the identified party was the offender. While we agree
that a positive identification by a victim witness, without
more, would usually be sufficient to establish probable
cause, this qualified precept cannot be rendered absolute.
Independent exculpatory evidence or substantial evidence
of the witness's own unreliability that is known by the
arresting officers could outweigh the identification such
that probable cause would not exist. Each case must
therefore be examined on its facts.

For example, if two identifying witnesses had told the
officer that the robber was 7', and the officer knew that the
person in the photograph was 5', the positive identification
would not be enough. Likewise, an otherwise credible victim
identification would not provide probable cause if police
officers contemporaneously possessed reliable DNA
evidence which determined conclusively that the accused
could not have committed the crime. Or, if Druce had,
equally firmly, picked another person from the photo array,
Braverman's identification might not have been sufficient
for Russo to conclude that Wilson "probably" committed the
crime. "An officer contemplating an arrest is not free to
disregard plainly exculpatory evidence, even if substantial
inculpatory evidence (standing by itself) suggests that
probable cause exists." Kuehl v. Burtis, 173 F.3d 646, 650
(8th Cir. 1999).7
_________________________________________________________________

7. We recognize that the Seventh Circuit has used language suggesting
that exculpatory evidence or evidence of unreliability is totally
irrelevant.
See Tangwall v. Stuckey, 135 F.3d 510 (7th Cir. 1998). In Tangwall, a
woman who had been raped called the police because she said she was
convinced that a man that she had been observing for some time in the
restaurant in which she worked was her attacker. She had previously
described her attacker differently; the man in the restaurant was slightly
older, heavier, taller, and had a different color hair and eyes than her
original description. There was no corroborating evidence or independent
exculpatory evidence. The court concluded that the officers had qualified
immunity in that case, stating along the way that"the alleged
discrepancies between Smith's original description of her attacker and
Tangwall's appearance on the evening of his arrest do not affect our
inquiry into whether Detective Stuckey's actions were objectively

                               15
The cases that the defendants cite for their argument fall
into two basic camps: (1) those in which there was no
exculpatory evidence or evidence of witness unreliability,
such as United States v. Harris, 956 F.2d 177, 180 (8th Cir.
1992); and (2) those in which the court concluded that a
positive identification was not fatally undermined by
unreliability or exculpatory evidence, such as Sharrar v.
Felsing, 128 F.3d 810 (3d Cir. 1993) and Lallemand v.
University of Rhode Island, 9 F.3d 214 (1st Cir. 1993). The
first class of cases is inapposite here. Looking at the second
class of cases, we find that courts have consistently
considered the context of an identification, and have not
stated that police can rely on any witness accusation,
however unreliable or unbelievable.

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

reasonable in light of clearly established law." Id. at 517 (emphasis
added). Although we would have no reason to take issue with the court's
ultimate disposal of that case on its facts, especially given the
relatively
minor nature of the discrepancies, we find this statement overbroad, in
that it appears to treat identifications as unimpeachable, and conflicts
not only with the cases and language cited in the same section of the
opinion, see id. at 516 (citing United States v. Decoteau, 932 F.2d 1205,
1207 (7th Cir. 1991) for the proposition that "once a putative victim . .
.
has positively identified her attacker to the police and they have no
reason to disbelieve her, the officers `need not take any additional steps
to corroborate the information regarding the crime before taking
action.' ") (emphasis altered)), but with suggestions in the case itself,
in
which the court went out of its way to discuss reasons to discount
discrepancies in part because of the special circumstance of rape. See id.
at n.11. Therefore, we are unwilling to follow the reading of that case
urged by the defendants. We are also skeptical that the Seventh Circuit
would adopt such a sweeping interpretation and consider there to be
probable cause to arrest someone identified as the assailant if the police
officers were aware that the victim, like the boy who cried wolf, had
previously firmly identified several different people as her attacker and
repeatedly called the police demanding that they be arrested.

                               16
reasonable for the officer to "assess Gannon's demeanor,
find her story credible, and rely on her subsequent
identification of her husband as the attacker" in part
because it was a domestic violence case. Id. Likewise, in
Lallemand, the First Circuit concluded that discrepancies in
a victim's description were "trivial, given their nature" and
in light of the positive identification, clearly implying that
non-trivial discrepancies, or external evidence powerfully
undermining the reliability of the witness's identification,
might translate into a finding that there was no probable
cause. 9 F.3d at 217.8 We reject the rule suggested by the
defendants and engage in the routine probable cause
analysis, weighing the inculpatory evidence against any
exculpatory evidence available to the officer.

The strongest inculpatory evidence is clearly the positive
identification. Braverman had considerable opportunity to
view the robber at the scene of the crime, and she exhibited
a high level of certainty. There were three days between the
crime and identification, so while it was not an entirely
fresh identification, not so much time had passed as to call
into question her recollection. Granted, Braverman's
testimony should be viewed with some skepticism because
her identification of Wilson was inherently incompatible
with her description of the robber--according to the
information available to Russo (Lipp's report), Braverman
(and/or her coworker) originally described the robber as
between 6'3" and 6'5". Although she did not know it, in
identifying Wilson she identified someone much shorter.
Both of these identifications cannot be correct. However,
_________________________________________________________________

8. As in this case, Lallemand involved, among other things, a discrepancy
in height. The victim initially described her attacker as 6', while
Lallemand is 6'7". But later the victim told the police that her attacker
was "much taller" than a police officer who was over 6', 9 F.3d at 215
n.1, and no other witness (like Druce) had indicated his height, and the
court acknowledged no independent exculpatory evidence. We do not
disagree with the result, but think it was a simpler case. More
importantly, we note that it did not apply a per se rule; on the contrary,
it carefully examined the facts available to the officer that might be
deemed to undercut the victim's credibility, such as her intoxication, and
concluded that her identification was still reliable and probable cause
existed even when these facts were taken into account.

                               17
this indication of unreliability does not, from the vantage
point of the arresting officer, fatally undermine the forceful
positive identification. Added to this identification is the
fact that DaVila testified that she saw Wilson in the vicinity
near the time of the theft.

On the other hand, there are three exculpatory facts that
Russo should have mentioned: (1) the robber was originally
identified as someone 6'3" to 6'5", while Wilson is four to
seven inches shorter;9 (2) one of the two victim-witness with
ample opportunity to view the robber failed to identify
Wilson when shown a photo array; and (3) DaVila saw
Wilson out in the shopping center when he was supposedly
in the flower shop. But these exculpatory facts, when
weighed against the inculpatory facts, are not strong
enough to undermine a finding of probable cause. Thus, we
conclude that the District Court correctly found that no
reasonable jury could find facts that would lead to the
conclusion that Wilson's "corrected" warrant lacked
probable cause. Therefore, we do not have to reach the
second prong of the qualified immunity investigation, that
is, whether the right was clearly established.

In sum, we conclude that the   District Court correctly
concluded that Russo did not   violate Wilson's constitutional
right to be free of unlawful   arrest. Therefore, we affirm the
grant of summary judgment on   qualified immunity
grounds.

III. Continued Incarceration

Wilson contends that even if he was properly arrested in
the first instance, he was kept in jail in violation of his
rights because Russo learned of exculpatory facts after the
arrest which should have motivated him to try to release
Wilson. On February 7, Russo interviewed Wilson's friend
_________________________________________________________________

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

                                 18
George Richardson, who told Russo that Wilson had spent
February 3 in his company. He told him that Wilson wore
blue jeans, tan work boots, a beige sweatshirt and a brown
jacket that day. He said that they had gone to the Towne
Center, where Wilson went to get a lemonade at the pizza
parlor while Richardson went to the bank. As evidence of
his veracity, Richardson gave Russo a bank slip with 3:38
stamped on it. Russo testified that he visited the bank and
looked at the films from the bank's surveillance camera to
look for Richardson, but that he could not recall what he
saw and could not recall if the employees remembered
Richardson.10

Wilson contends that Russo's post-arrest interview with
Richardson provided exculpatory information that
dissipated probable cause, and that Russo had a
constitutional duty to inform the prosecutor of the interview
and attempt to get Wilson released. The law in this area is
not entirely settled. Compare Brady v. Dill, 187 F.3d 104,
112 (1st Cir. 1999) (concluding that police officers generally
have no duty to try to release suspects when exculpatory
information comes into their possession after a lawful
arrest), with id. at 117-125 (Pollak, J., concurring)
(proposing a rule by which "[a]n affirmative duty to release
arises . . . if an arresting or custodial officer ascertains
beyond a reasonable doubt that the suspicion (probable
cause) which forms the basis for the privilege of arrest is
unfounded."). See also Sanders v. English, 950 F.2d 1152,
1162 (5th Cir. 1992) ("[F]ailure to disclose . . . undeniably
credible and patently exculpatory evidence to the
prosecuting attorney's office plainly exposes[defendant
police officer] to liability under S 1983."); BeVier v. Hucal,
806 F.2d 123, 128 (7th Cir. 1986) ("The continuation of
even a lawful arrest violates the Fourth Amendment when
the police discover additional facts dissipating their earlier
probable cause.").

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

10. Russo also eventually interviewed the woman who had been in the
flower shop on a bridal order. When shown the same photo array that
Russo showed Braverman and Druce, she identified Wilson as the man
who had been in the shop with her.

                               19
Regardless of the existence and scope of an officer's duty to
seek to release a suspect when probable cause no longer
exists, or the level of knowledge that he or she must have
in order to trigger that duty, the interview with Richardson
clearly did not dispel the earlier probable cause. 11 A friend
of Wilson gave Wilson a partial alibi, and his description of
Wilson's clothing did not match the victims' descriptions,
but he placed Wilson in the vicinity at the time of the
robbery, and nothing he said overwhelmed the fact of
Braverman's positive identification. In short, no reasonable
jury could conclude that this evidence dispelled probable
cause.

         For the foregoing reasons, the grant of summary
judgment will be affirmed as to the federal claims. The case
will be remanded to the District Court for consideration of
the state claims.
_________________________________________________________________

11. We also reject Wilson's suggestion that he has a due process claim
because Russo should have done a better job of post-arrest investigation.
As the Supreme Court stated in Baker v. McCollan , 443 U.S. 137, 145-
146 (1979):

           [W]e do not think a sheriff executing an arrest warrant is
required
           by the Constitution to investigate independently every claim of
           innocence, whether the claim is based on mistaken identity or a
           defense such as lack of requisite intent. Nor is the official
charged
         with maintaining custody of the accused named in the warrant
         required by the Constitution to perform an error-free
investigation of
         such a claim.

                                 20
GARTH, Circuit Judge, concurring:

I agree that the District Court's decision granting
summary judgment to the defendants must be affirmed.1 I
write separately, however, because I take issue with the
majority opinion's equivocal "probable cause" analysis as it
relates to eyewitness identification. See Majority Op., Part
II-B.

Despite recognizing the argument "that a positive
identification by a victim is sufficient by itself to establish
probable cause that the identified party was the offender,"
id. at 15, the majority opinion insists upon adopting a
"weighing" principle that forces us to weigh"exculpatory"
facts against "inculpatory" facts. See id. at 17-18. By doing
so, the majority has misinterpreted and placed much
emphasis on the reliability factor that the Supreme Court
has held to be a necessary part of our Fourth Amendment
analysis, see Illinois v. Gates, 462 U.S. 213, 230 (1983).

In probable cause analysis, it is the reliability of the
witness (or victim) who has provided an identification of the
assailant that is the focal point of the inquiry. It is not the
reliability of the evidence provided in tandem with that
individual's identification, which may be inconsistent with
such an identification. As a result, the majority confuses a
lack of reliability in an eyewitness with evidence that, at
most, tends to exculpate the identified individual of
wrongdoing and therefore simply is inconsistent with the
victim's identification. Inconsistent or contradictory
evidence may cut against a putative defendant's guilt at
trial, but it cannot render invalid -- i.e., eliminate the
probable cause necessary to obtain an arrest warrant-- a
positive identification by an eyewitness who either a police
officer or magistrate deemed to be reliable.

Reliability in this context obviously means an eyewitness
who is neither mentally impaired or delusional. See Jones
v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988)
(stating that as long as the identifying victim eyewitness is
_________________________________________________________________

1. I further agree that because the District Court failed to address
Wilson's state law claims, a remand is appropriate for this limited
purpose.

                               21
"lucid," probable cause exists to arrest the identified
individual). For instance, if the victim eyewitness were to
show signs of insanity or other forms of mental instability,
the reliability of that eyewitness would, in my view,
justifiably be called into question. Statements during the
identification process such as "That's the assailant! I'd
know Abe Lincoln anywhere!" or "I believe that this is the
thief, because he had three heads!" would signal such
reliability concerns. Thus, it is the witness's reliability that
is at the core of our probable cause determination, not the
reliability of the individual's identification, as required by
the majority opinion's formula, which weighs exculpatory
against inculpatory evidence. Majority Op., at 17-18.
Accordingly, I part company with the majority opinion at
the point where the majority seeks to distort the probable
cause analysis to the point of virtually requiring trial-type
proof at the very threshold stage of criminal investigation.2

My thesis is simple and in accord with the prevailing
jurisprudence. Once law enforcement officers have obtained
a positive identification from a reliable witness, then,
without more, probable cause exists to justify the arrest of
the identified individual. As the Seventh Circuit has stated,
"once a putative victim . . . has positively identified her
attacker to the police and they have no reason to disbelieve
her, the officers `need not take any additional steps to
corroborate the information regarding the crime before
taking action.' " Tangwall v. Stuckey, 135 F.3d 510, 516
(7th Cir. 1988) (quoting United States v. Decoteau, 932 F.2d
1205, 1207 (7th Cir. 1991)); see also Jones, 856 F.2d at
994.

Decisions from both this circuit and our sister circuits
validate my interpretation of this interplay between the
Fourth Amendment's probable cause requirement and
victim eyewitness identifications, especially as they impact
on the facts presented in this case. See Sharrar v. Felsing,
128 F.3d 810 (3d Cir. 1997); Tangwell v. Stuckey , 135 F.3d
510 (3d Cir. 1998); Lallemand v. University of Rhode Island,
_________________________________________________________________

2. As the Supreme Court has stated, the standard for "probable cause
does not demand the certainty we associate with formal trials." Illinois
v.
Gates, 462 U.S. 213, 246 (1983).

                               22
9 F.3d 214 (3d Cir. 1993); Greene v. City of Philadelphia,
No. CIV. A. 97-4264, 1998 WL 254062 (E.D. Pa. May 8,
1998).

Specifically, in Sharrar v. Felsing, 128 F.3d 810 (3d Cir.
1997), a woman telephoned 911 to report that she had
been assaulted. See id. at 814. When the 911 operator
asked the woman to identify the individual who had
committed the assault, she immediately responded with the
name Robert Carroll. See id. Once the police arrived,
however, the woman had altered her story, and now alleged
that her husband -- David Brigden -- was the assailant.
See id. The police arrested Brigden, but after all charges
against him had been dismissed, Bridgen brought a section
1983 action against the police, alleging that they lacked the
probable cause to arrest him. See id. at 816-17. In
particular, Brigden argued that his wife's earlier
identification of Carroll as her attacker so impaired her
reliability as to abrogate any finding of probable cause. See
id. at 818.

We soundly rejected this argument, holding that law
enforcement officers (or, presumably, a magistrate) need
not carefully scrutinize an identification or other
information provided by a victim of an alleged offense as
they would with other informants. See id. at 818 (quoting
Easton v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir.
1985)). Most importantly, however, the Sharrar panel held
that "[w]hen a police officer has received a reliable
identification by a victim of his or her attacker, the police
have probable cause." Id. (citing Torchinsky v. Siwinski, 942
F.2d 257, 262 (4th Cir. 1991); Grimm v. Churchill, 932 F.2d
674, 675 (7th Cir. 1991)); see also Greene v. City of
Philadelphia, No. CIV. A. 97-4264, 1998 WL 254062, at *7
(E.D. Pa. May 8, 1998) ("The principle that probable cause
may be based on a single and reasonably reliable
eyewitness identification, even though the identification
may be tarnished by discrepancies in the witnesses'
description of the perpetrator, is well-established."). By
affirming the district court's finding of probable cause to
arrest Bridgen, the panel in Sharrar implicitly stated that a
victim's proffer of two different identifications for his or her
attacker by name does not undermine the eyewitness's

                                23
reliability enough to eliminate probable cause to arrest. Any
reading of the Sharrar opinion has to lead to the conclusion
that it is the reliability of the eyewitness that is relevant
and essential to the probable cause analysis, not the
weighing process through which the majority attempts to
modify our jurisprudence.3

Sharrar's application to the present matter is striking.
Within a matter of hours, the alleged victim in Sharrar
provided the police with two different names for her
assailant. Even in the face of this blatant inconsistency, the
Sharrar court -- our court -- held that the purported
victim's positive identification was sufficient to give rise to
probable cause.

To the contrary, the inconsistencies presented here are
much less extreme. The only evidence that arguably can be
considered inconsistent with Braverman's photo
identification of Wilson was her earlier description of the
assailant's height and Druce's inability to identify the
assailant when presented with the same photo array.
Merely providing a height range that is inconsistent with
that of the individual identified does much less to question
an eyewitness' reliability than does providing two different
names of two different individuals within a span of hours.
As such, any reading of our decision in Sharrar -- to which
this panel is, of course, bound -- must lead to the
conclusion that Braverman's identification of Wilson,
without more, was sufficient to give rise to probable cause.

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

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

                               24
investigation, law enforcement officers showed the student
photographs of each of the pledges from the fraternity at
which the student claimed to have been assaulted. See id.
at 215. Faced with these photos, the student "positively and
without hesitation" identified, as her assailant, an
individual named "David," who stood 6'7", and did not have
blond hair. Id. at 215 & n.1. Notwithstanding these
discrepancies, the First Circuit held that probable cause
existed for "David's" arrest. See id. at 216-17. Indeed, the
Lallemand court went so far as to state that"[t]he
discrepancies concerning the assailant's first name, hair
style, dormitory and height are trivial, given their nature
and the positive identification." Id. at 217 (emphasis
added); see also Tangwall, 135 F.3d at 516 ("The
identification itself establishes probable cause to make an
arrest, even where other witnesses' descriptions of the
alleged perpetrator differ from the physical appearance of
the individual so identified.").

Given the factual similarities presented between
Lallemand and the instant matter, and our own court's
acceptance -- in Sharrar -- of the constitutional premise
underlying the First Circuit's persuasive holding in
Lallemand, the equivocal and therefore improper and
erroneous nature of the majority's probable cause analysis
becomes clear.

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

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

I agree with virtually all of the opinion of the court. With
respect to the legal standards announced by the court, I
join the court's opinion without reservation. Where I part
company with the opinion is in the court's application of its
correct summary judgment standard to the facts in this
case. In my view, the question whether the " `corrected'
warrant" application (i.e., the warrant application as it
would have been, had it been amended to cure officer
Russo's omissions and misstatement) established probable
cause for Wilson's arrest is one that should be reserved for
the finder of fact.1

A.

In a portion of the opinion of the court with which I do
not take issue, the court determines that "[a]ny reasonable
person would know that the significant height differential,
and the fact that an eye-witness did not identify Wilson,
were the kind of things the judge would wish to know."
Supra p. 11-12 (quotation omitted). The court is surely
correct in this conclusion. Like Braverman, Druce had
ample opportunity to view the robber in the store, so his
failure to identify the robber in the lineup is undoubtedly a
significant fact. Braverman's and Druce's descriptions of
the robber's height are at least as significant for these
purposes. Braverman described the robber as "very tall"
and estimated his height as between 6'2" and 6'4". Druce
also described the robber as "very tall," guessing his height
to be "about 6'5" tall, maybe a little bit taller." Indeed, the
statements of Braverman and Druce reveal that they were
very attentive to the robber's height. Druce, for instance,
stated that while the robber was not someone he had seen
before, "it would be someone I'd remember because of the
height of him, he's very tall that's the first thing I said to
Renee, `He's tall, he's very tall.' "
_________________________________________________________________

1. I agree with the court that summary judgment was properly granted
in favor of officer Woroniecki for the reasons discussed by the court,
supra p. 3-4 note 1.

                               26
For purposes of identification of a suspect, the
significance of the difference in height between Wilson and
the man described by Druce and Braverman may be even
greater than is suggested by the court's statement that
Wilson was "four to seven inches shorter" than the robber
described in the police report. Supra p. 18. Both Druce and
Braverman were quite clear that they viewed the robber as
an exceptionally tall man. And while estimates of height
may well be off by a few inches in either direction, it would
be remarkable if someone who had had nearly an hour to
observe a person of average height--as Wilson is--would
describe that person as being exceptionally tall. And, of
course, it would be that much more remarkable if two such
observers made the same mistake. Thus, the height
discrepancy was clearly a fact that a reasonable officer
would expect a judge to want to know. It follows that
knowingly omitting such information in the context of a
warrant application would amount to reckless disregard for
the truth, as the court has concluded. Similarly, the fact
that Druce failed to identify Wilson was information that a
judicial officer would be expected to want to know. And,
finally, I agree with the court that Russo's statement to the
judge about the timing of DaVila's seeing Wilson in the
parking lot constituted reckless disregard for the truth.

The court follows these conclusions with a discussion of
the materiality of the omissions and misstatement,
concluding that the omissions and misstatement were not
material in the face of Braverman's positive identification.
Indeed, the court concludes that "no reasonable jury could
find facts that would lead to the conclusion that Wilson's
`corrected' warrant lacked probable cause." Supra p. 18.

That statement contains an implicit recognition of the
fact that, in the Third Circuit, it is well established that
"the existence of probable cause in a section 1983 action is
a question of fact." Sherwood v. Mulvihill , 113 F.3d 396,
401 (3d Cir. 1997); see also Groman v. Township of
Manalapan, 47 F.3d 628, 635 (3d Cir. 1995) (reversing
summary judgment as to issue of probable cause); Deary v.
Three Un-Named Police Officers, 746 F.2d 185 (3d Cir.
1984) (same); Patzig v. O'Neill, 577 F.2d 841 (1978) (holding
that the existence of probable cause in civil cases is "a
question for the jury").

                               27
Judge Garth, in his concurrence, argues that a positive
identification by an eyewitness deemed reliable by the
police or the judicial officer issuing the warrant is
conclusive--as a matter of law--on the question of probable
cause without regard for any extrinsic evidence that may
cast doubt on the accuracy of that identification. The court
rejects Judge Garth's submission. While it is undeniable
that a positive identification is very strong evidence in
support of a finding of probable cause--a finding that, as
Judge Garth correctly notes, is properly made on far less
evidence than that needed to establish guilt--the court's
rejection of a per se rule is surely correct. For, as the
court's hypothetical illustrations demonstrate, there may
well be cases in which the exculpatory evidence is so
overwhelming as to outweigh the inculpatory effect of a
positive identification, even for purposes of a showing of
probable cause.

It is not my view that the exculpatory evidence is so
strong in this case as to require, as a matter of law, the
conclusion that a judicial officer to whom the"corrected"
warrant application was submitted could not have found
probable cause. It is my view, however, that the present
case is within the class of cases--a class that is likely to be
a limited one where a positive identification has been
obtained--in which a factfinder might reasonably conclude
that a judicial officer assessing the "corrected" warrant
application would not have found probable cause. I say this
for the following reasons.

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

                               28
identify Wilson as the robber, and the fact that Wilson was
seen in the parking lot at a time when the robber was in
the flower shop. By contrast, it seems to me well within the
range of plausibility that a judicial officer assessing the
"corrected" warrant application, (1) might have viewed
Braverman's identification with very considerable
skepticism; (2) might have largely or entirely discounted
DaVila's statement, given that the time at which DaVila
said she saw Wilson in the parking lot was the very time at
which the robber was in Braverman's flower shop; and (3)
might have credited the other exculpatory evidence quite
highly. If so, the judicial officer might reasonably have
concluded that probable cause had not been established.
"But the weight that a neutral magistrate would likely have
given such information is a question for the finder of fact."
Velardi v. Walsh, 40 F.3d 569 (2d Cir. 1994). Accordingly,
so it seems to me, the District Court's grant of summary
judgment on the question of probable cause was
inappropriate.

That it would be reasonable to conclude that Russo had
not established probable cause is strongly supported by the
court's conclusion that any reasonable person would view
the omitted information as information that a judicial
officer would want to know--a conclusion that, as I have
discussed, is quite proper given the significance of that
information in the context of the present case. A judicial
officer would be expected to want to know this information
largely because such information at least had the potential
to make a difference in the determination of the existence
of probable cause. It is thus puzzling that the court appears
to conclude both (1) that it would be unreasonable to keep
the information from the judge, which would seem to
suggest that it could make a difference to a probable cause
inquiry, and (2) that it would be unreasonable to conclude
that the information would have made a difference to
probable cause. It appears that the court views the
information as potentially significant in thefirst context,
but necessarily insignificant in the second. For the reasons
discussed above, I agree with the court that the information
omitted and misstated by Russo was of substantial
significance. And, for essentially the same reasons, I also
believe that a factfinder could find that, had it been

                               29
supplied, the omitted and misstated information would
have had a determinative effect on the issue of probable
cause, even in the face of a positive identification.2

B.

In the previous section, I stated my agreement with the
court that Russo's misstatement and omissions were in
reckless disregard for the truth. But I have concluded, in
disagreement with the court, that a factfinder could find
that, but for the misstatement and omissions, a judicial
officer would not have issued an arrest warrant, from which
it follows that Russo's conduct could be found by a
factfinder to have deprived Wilson of a constitutional right.
The right not to be arrested on the basis of a warrant
obtained on the basis of a law enforcement officer's
representations or omissions made in reckless disregard of
the truth is a clearly established right. See Lippay v.
Christos, 996 F.2d 1490, 1504 (3d Cir. 1993) ("If a police
officer submits an affidavit containing statements he knows
to be false or would know are false if he had not recklessly
disregarded the truth, the officer obviously failed to observe
a right that was clearly established. Thus, he is not entitled
to qualified immunity.").
_________________________________________________________________

2. A fortiori, I also disagree with the court's conclusion, in section III
of
the court's opinion, that no reasonable factfinder could have found that
the additional exculpatory evidence gathered by Russo subsequent to
Wilson's arrest undermined probable cause. (As the court's opinion
notes, see supra p. 19, I have had occasion, in Brady v. Dill, 187 F.3d
104, 123 (1st Cir. 1999) (concurring), to address the further question,
which the court in the present case identifies but does not undertake to
resolve, whether an officer who acquires evidence which incontestably
establishes the innocence of a person he holds in custody is
constitutionally obligated to release that person without seeking judicial
intervention. In Brady, I was sitting as a member of a First Circuit
panel,
and my affirmative answer to the question was rejected by the panel
majority. In my view, application to the present record of either the
standard I endorsed in Brady, or that adopted by the Brady majority,
would preclude recovery on this basis. Accordingly, I do not differ with
the ultimate conclusion reached by the court; that is, that summary
judgment is appropriately affirmed with respect to plaintiff 's claim
discussed in section III of the court's opinion.)

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Accordingly, I would reverse the entry of summary
judgment in favor of Russo, and remand the case for
further proceedings.

A True Copy:
Teste:

         Clerk of the United States Court of Appeals
         for the Third Circuit

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