                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 11-3579
                                   _____________

                                  PEDRO REYES,
                                                     Appellant

                                          v.

                                  MARK DILUZIO
                                  ______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                     (D.C. Civ. Action No. 5-10-cv-03102)
                  Magistrate Judge: Honorable Henry S. Perkin
                               ______________

                               Submitted: June 7, 2012
                                  ______________

         Before: SCIRICA, GREENAWAY, JR., and COWEN, Circuit Judges.

                          (Opinion Filed: September 7, 2012)
                                  ______________

                                     OPINION
                                  ______________

GREENAWAY, JR., Circuit Judge.

      Pedro Reyes (“Reyes”) appeals the September 21, 2011 Order of the District

Court, granting summary judgment in favor of appellee Police Detective Mark DiLuzio

(“DiLuzio”) of the Bethlehem Police Department. Reyes was initially arrested and

charged with suspicion of DUI and driving with an open container of alcohol. The DUI
charges were later dropped, and he was charged only with driving with an open container

of alcohol. Reyes filed suit against DiLuzio seeking damages for false arrest and

malicious prosecution. Reyes also sought punitive damages. The District Court granted

summary judgment in favor of DiLuzio. For the reasons stated below, we shall affirm the

District Court’s Order.

                                 I.     BACKGROUND

       Because we write primarily for the benefit of the parties, we recount only the

essential facts. On July 6, 2008, Reyes was stopped at a sobriety checkpoint in

Bethlehem, Pennsylvania, while returning home from a party. Officer Doug Nothstein,

the contact officer at the checkpoint, was responsible for making first contact with drivers

and making observations regarding their sobriety. Officer Nothstein stated that he saw an

open container of beer in Reyes’s car and also noticed that Reyes had glassy, bloodshot

eyes and sluggish movements. He also detected an odor of alcohol on Reyes’s breath.

Officer Nothstein also asserted that Reyes admitted that he had been drinking earlier that

night at a party.

       Officer Nothstein asked Reyes to step out of the car and directed him to Appellee,

DiLuzio 1. Officer Nothstein briefed DiLuzio on his observations regarding Reyes. After

noticing that there was an open container of beer in the car and making similar

observations about Reyes’s eyes and the odor on his breath, DiLuzio decided to

administer a preliminary breath test (“PBT”) and two field sobriety tests. DiLuzio took

1
  DiLuzio’s responsibilities at the checkpoint were to conduct field sobriety testing on
those drivers removed from their vehicles on suspicion of DUI.

                                             2
two PBT readings, which came back at .09 and .10, both above the legal limit of .08 for

alcohol levels in the bloodstream while driving. DiLuzio administered the field sobriety

tests—the one-legged-stance and the walk-and-turn test. Reyes failed both field sobriety

tests.

         Based on the results of the field sobriety tests, Reyes was taken into custody on

suspicion of DUI. He was transported to the Northampton County DUI Center. Officer

Eric Schaedel, an employee of the DUI Center, observed that Reyes had a “moderate”

level of alcohol on his breath, mumbled when he spoke, had “bloodshot” eyes and was

“unsteady” in his gait. With Reyes’s consent, blood was drawn and sent to a local

hospital for testing. The results were negative for alcohol content.

         As a result of the DUI Center blood test, DiLuzio did not pursue DUI charges

against Reyes. Instead, DiLuzio mailed Reyes a summary traffic citation for driving with

an open container of alcohol in his car, in violation of 75 Pa. C.S.A. § 3809. At the

hearing on the open container charge, a magisterial district judge found Reyes not guilty

of the traffic violation, but guilty of the open container violation.

         Reyes subsequently filed a civil rights action, pursuant to 42 U.S.C. § 1983,

against DiLuzio, claiming that DiLuzio arrested him without probable cause, in violation

of the Fourth Amendment to the Constitution of the United States. Specifically, Reyes

contends that he was arrested for drunk driving without probable cause, and that his claim




                                               3
was supported by the fact that a blood test done shortly after the arrest was completely

negative for alcohol. 2

       DiLuzio filed a motion for summary judgment. The District Court granted the

motion since Reyes had not put forth any evidence to contradict the testimony of

DiLuzio, Officer Nothstein, or Officer Schaedel. Reyes filed a timely appeal.

               II.        JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have

jurisdiction under 28 U.S.C. §1291 to review the District Court=s grant of summary

judgment. Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 95 n.7 (3d Cir. 2009). We

review the District Court’s order granting summary judgment de novo. Azur v. Chase

Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010). To that end, we are required

to apply the same test the district court should have utilized initially. Chambers ex rel.

Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 181 (3d Cir. 2009) (quoting

Oritani Sav. & Loan Ass’n v. Fidelity & Deposit Co. of Md., 989 F.2d 635, 637 (3d Cir.

1993)).

                                    III.   ANALYSIS

       Reyes contends that his DUI arrest occurred despite the absence of probable cause

and that the District Court erred in crediting DiLuzio’s testimony regarding Reyes’s

alleged drunken state.




2
 Reyes contends that either DiLuzio was not truthful in his testimony regarding the PBTs
or there was some error with the blood test results from the local hospital.

                                              4
       Lack of Probable Cause for Arrest

       Reyes contends that the blood test administered at the DUI Center correctly

showed that he had no alcohol in his system, even though DiLuzio testified that Reyes

failed the field sobriety tests and the PBT. He argues that the individuals involved in

testing his alcohol blood level at the DUI Center were deposed and testified as to the

chain of custody and the procedures used; and concluded that there could have been no

mistake with the sample. In addition, Reyes argues that evidence of his demeanor and his

ability to walk and speak clearly are apparent on a video and sound recording. However,

that recording was not in the record; thus, the District Court could not consider that

evidence. Any consideration of this evidence on appeal is beyond our purview.

       Reyes also argues that DiLuzio violated his rights under the Fourth Amendment

when he was arrested, handcuffed, placed in a police car, and taken to the County DUI

Center, from which he was not free to leave. According to Reyes, these acts constituted

“a custodial arrest and a seizure.” (Appellant’s Br. at 22.)

       We have held that “the test for an arrest without probable cause is an objective

one, based on the facts available to the officer at the moment of arrest.” Barna v. City of

Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1989) (quoting Beck v. Ohio, 379 U.S. 89, 96

(1964)). “Probable cause to arrest exists where the facts and circumstances within [an

officer’s] knowledge and of which [that officer] had reasonably trustworthy information

[are] sufficient in themselves to warrant a man of reasonable caution in the belief that an

offense has been or is being committed.” Edwards v. Phila., 860 F.2d 568, 572 (3d Cir.

1988) (quoting Brinegar v. United States, 338 U.S. 160, 175-76 (1949)). Therefore, as

                                             5
long as the officers had some reasonable basis to believe that Reyes had committed a

crime, the arrest is justified as being based on probable cause. Here, DiLuzio had

probable cause to arrest Reyes, based on the information provided by Officer Nothstein at

the DUI checkpoint. More important, DiLuzio had his own observations and the results

of the tests he had administered in the field. There was no error on this basis.

       Malicious Prosecution

       Reyes contends that his arrest, based on its resolution, amounts to malicious

prosecution. In order to prevail on a claim for malicious prosecution, a plaintiff must

show: (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding

ended in plaintiff’s favor; (3) the proceeding was initiated without probable cause; (4) the

defendant acted maliciously or for a purpose other than with the concept of seizure as a

consequence of a legal proceeding. Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007).

These elements are conjunctive.

       If probable cause is established, a malicious prosecution claim fails as a matter of

law. See Kossler v. Crisanti, 564 F.3d 181, 195 (3d Cir. 2009) (“[H]ad the District Court

analyzed Kossler’s claims under the third element of malicious prosecution, it would

have found that the existence of probable cause precluded his action from proceeding.”)

Because we find that DiLuzio had probable cause to arrest Reyes, a claim for malicious

prosecution cannot proceed. 3

3
 Reyes fails to discuss punitive damages in his brief. The issue is waived. “It is well
settled that an appellant’s failure to identify or argue an issue in his opening brief
constitutes waiver of that issue on appeal.” United States v. Pelullo, 399 F.3d 197, 222
(3d Cir. 2005).

                                             6
       DiLuzio’s Testimony

       Reyes contends that the District Court erred in crediting DiLuzio’s “disputed”

testimony in entering summary judgment in DiLuzio’s favor. He argues that the Court

based its entry of summary judgment on the fact that “[DiLuzio] observed him smelling

drunk, acting drunk, and testing legally drunk on an unverifiable PBT, all of which are

disputed facts, which the factfinder is not required to believe, and which [he] has

introduced substantial evidence to contradict.” (Appellant’s Br. at 18.) Reyes also

argues that DiLuzio is not truthfully reporting his observations made at the checkpoint,

and that there is both direct and circumstantial evidence to suggest that Reyes was not

exhibiting any signs of intoxication, negating the existence of probable cause to arrest.

(Id. at 12.) Reyes has failed to raise genuine disputes as to material facts sufficient to

reverse the District Court on this issue.

       Reyes also argues that Officer Schaedel’s observations regarding his condition

should not have been considered by the District Court when making its determination

regarding summary judgment, as he was never deposed and did not submit an affidavit.

Although the District Court listed a number of factors in considering whether to grant

DiLuzio’s motion for summary judgment, Officer Schaedel’s observations were not listed

among the factors. See App. at 10a.

       Reyes bases his contention regarding the veracity of DiLuzio’s testimony on the

results of the DUI Center blood test. He claims that DiLuzio’s testimony should not have

been believed on summary judgment. Reyes contends that he has made “an ample



                                              7
showing” of evidence for a reasonable jury to find in his favor, based on his arguments

challenging the veracity of DiLuzio’s testimony. (Id. at 21.)

       Two retorts are prompted by this argument. First, the District Court’s role on

summary judgment is not to determine credibility. Thus Reyes’s assertion regarding

DiLuzio’s testimony is not relevant to our de novo review of the District Court’s

summary judgment ruling. Second, the basis for summary judgment does not center on

DiLuzio’s testimony. There is also the testimony of Officer Nothstein, the results of the

field sobriety tests, the reported smell of alcohol on Reyes’s breath, Reyes’s admitted

alcohol consumption that evening, and the open container of alcohol. These facts were

appropriately considered in determining whether genuine disputes of material fact

required denial of summary judgment.

       We find that Reyes has not provided sufficient facts for the District Court’s

consideration to suggest that genuine disputes of material facts exist which would negate

the grant of summary judgment. Reyes’s general disagreement with the evidence and

testimony presented against him are not enough to produce a different outcome.

                                 IV.     CONCLUSION

       For the reasons set forth above, we shall affirm the Order of the District Court.




                                             8
