18-765-cv
Roberts v. Azize, et al.

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
25th day of April, two thousand nineteen.

Present:          ROSEMARY S. POOLER,
                  DENNY CHIN,
                              Circuit Judges.
                  ERIC N. VITALIANO,1
                              District Judge.

_____________________________________________________

JARVIS ROBERTS,

                                  Plaintiff-Appellant,

                           v.                                               18-765-cv

POLICE OFFICER GEORGE AZIZE, Shield No. 16004,
POLICE OFFICER THEODORE PETERS, Shield No. 13285,
JOHN DOE #1-4,

                        Defendants-Appellees.2
_____________________________________________________

Appearing for Appellant:          Nicholas Mindicino, Stoll, Glickman and Bellina LLP, Brooklyn,
                                  N.Y.


1
  Judge Eric N. Vitaliano, United States District Court for the Eastern District of New York,
sitting by designation.
2
  The Clerk of the Court is directed to amend the caption as above.
Appearing for Appellees:       Daniel Matza-Brown, Assistant Corporation Counsel (Richard
                               Dearing, Deborah A. Brenner, Assistant Corporation Counsel, on
                               the brief), for Zachary W. Carter, Corporation Counsel of the City
                               of New York, New York, N.Y.

Appeal from the United States District Court for the Eastern District of New York (Cogan, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

       Appellant Jarvis Roberts appeals from the February 26, 2018, dismissal and the
September 29, 2017, memorandum order and decision of the United States District Court for the
Eastern District of New York (Cogan, J.), dismissing Roberts’s Section 1983 action and granting
Defendants-Appellees Officer George Azize, Officer Theodore Peters, and Officers John Doe #1
through 4 (collectively, “Defendants”) summary judgment on Roberts’s claims for false arrest
and malicious prosecution. See generally Roberts v. City of New York, No. 16 Civ. 5409 (BMC),
2017 WL 4357291 (E.D.N.Y. Sept. 29, 2017). We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

        We review de novo a district court’s grant of summary judgment. E.g., Jova v. Smith, 582
F.3d 410, 414 (2d Cir. 2009). To be entitled to summary judgment, “the movant [must] show[]
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A “dispute about a material fact is ‘genuine’. . . if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “In determining whether there are genuine
issues of material fact, we are required to resolve all ambiguities and draw all permissible factual
inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian,
680 F.3d 234, 236 (2d Cir. 2012) (internal quotation marks omitted). “The burden is on the
moving party to establish the absence of any material factual issues.” Terry v. Ashcroft, 336 F.3d
128, 137 (2d Cir. 2003).

        “Probable cause is a complete defense to a constitutional claim of false arrest . . . [a]nd
continuing probable cause is a complete defense to a constitutional claim of malicious
prosecution.” Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014) (citations omitted). “[P]robable
cause is a fluid concept—turning on the assessment of probabilities in particular factual
contexts”—and is evaluated under the totality of the circumstances. Illinois v. Gates, 462 U.S.
213, 232-33 (1983). “Probable cause to arrest exists when the officers have knowledge of, or
reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that an offense has been or is being committed by the
person to be arrested.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007); see also Brinegar
v. United States, 338 U.S. 160, 175-76 (1949). “Whether probable cause exists depends upon the
reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the
arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). This inquiry is an objective one: “an
arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence
of probable cause.” Id. at 153 (emphasis added).




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        Moreover, in the context of a defendant officer’s claim to qualified immunity, a
plaintiff’s false arrest and malicious prosecution claims “turn on whether the defendant officers’
probable cause determination was objectively reasonable—that is, whether there was ‘arguable’
probable cause to arrest.” Betts, 751 F.3d at 83. “Arguable probable cause exists if either (a) it
was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of
reasonable competence could disagree on whether the probable cause test was met.” Escalera v.
Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation marks omitted). “In other words, an
officer lacks arguable probable cause and is not entitled to qualified immunity only where no
officer of reasonable competence could have made the same choice in similar circumstances.”
Myers v. Patterson, 819 F.3d 625, 633 (2d Cir. 2016) (internal quotation marks omitted).

       Here, while we are skeptical whether Defendants had actual probable cause to arrest
Roberts, we are nevertheless persuaded that they are entitled to qualified immunity because a
reasonable jury could only find that they had arguable probable cause under the totality of the
circumstances. Defendants were informed of a tip regarding a gun in a bedroom inside a specific
apartment in Brooklyn, New York. When Defendants arrived at the apartment, Roberts was
present along with at least ten other people. After Defendants obtained consent to search the
bedrooms in the apartment, Peters recovered a loaded handgun from a dresser in one of the
apartment’s four bedrooms. Although at the time Defendants arrived Roberts was in a different
bedroom than the one from which Peters recovered the gun, he was one of four people in the
bedroom area of the apartment—none of whom were in the bedroom containing the gun.

       Together, the tip, Roberts’s general proximity to the dresser containing the gun, and
Defendants’ observations during their subsequent discussions with the individuals present in the
apartment made it reasonable for Defendants to believe they had probable cause to arrest Roberts
for constructively possessing the handgun. See United States v. Facen, 812 F.3d 280, 286-87 (2d
Cir. 2016) (“Constructive possession exists when a person has the power and intention to
exercise dominion and control over an object, and may be shown by direct or circumstantial
evidence.” (internal quotation marks omitted)); see also N.Y. Penal Law § 10.00(8) (“‘Possess’
means to have physical possession or otherwise to exercise dominion or control over tangible
property.”). Defendants thus had arguable probable cause and are entitled to qualified immunity.

        That Roberts told Defendants that the gun was not his and that he did not live in the
apartment does not alter this conclusion. Nor does the fact that another person present, Furman
Massey, confessed to owning the gun and stated that Roberts did not live in the bedroom from
which Peters recovered it. That is because “[i]t is up to the factfinder,” not the arresting officer,
“to determine whether a defendant’s story holds water.” Krause v. Bennett, 887 F.2d 362, 372
(2d Cir. 1989). “Once officers possess facts sufficient to establish probable cause, they are
neither required nor allowed to sit as prosecutor, judge or jury. Their function is to apprehend
those suspected of wrongdoing, and not to finally determine guilt through a weighing of the
evidence.” Id. Defendants here could have reasonably concluded that Roberts’s claim of
innocence and Massey’s confession of guilt were not credible and did not vitiate probable cause.

        Roberts’s malicious prosecution claim similarly fails. “[C]ontinuing probable cause is a
complete defense to a constitutional claim of malicious prosecution.” Betts, 751 F.3d at 82. “In
order for probable cause to dissipate, the groundless nature of the charges must be made apparent



                                                  3
by the discovery of some intervening fact.” Lowth v. Town of Cheektowaga, 82 F.3d 563, 571
(2d Cir. 1996). Here, Roberts points us to no intervening facts that would have dissipated
Defendants’ arguable probable cause.

        Roberts disputes that Defendants ever received a tip. He argues that the district court
erred by crediting Defendants’ deposition testimony about the tip and that he successfully
demonstrated a triable issue of fact as to the tip’s existence by pointing to the nonexistence of
facts from which a jury could reasonably infer that there was no tip. The problem with Roberts’s
argument is that he did not establish an evidentiary record supporting the various inferences he
argues are reasonable. For example, he argues that, because Defendants did not seek a search
warrant or assemble a tactical team before proceeding to the apartment, a jury could infer that
they did not actually receive a tip that Roberts was in possession of a gun. However, Roberts did
not set forth any evidence establishing that police officers who receive tips about a person in
possession of a firearm would be expected to, and typically would, seek a search warrant and
assemble a tactical team. Though Roberts argues that these are matters of common sense and
reasonable inference, they are in fact matters of police practices about which Roberts proffered
no evidence. Moreover, there was evidence in the record that the officers had received
information earlier that evening about a gun in a bedroom of the apartment.

        Roberts next contends that the district court erred by relying on the tip in granting
Defendants’ summary judgment motion because the tip was inadmissible hearsay. The tip was
not hearsay, however. A statement is only hearsay if “a party offers [it] to prove the truth of the
matter asserted in the statement.” Fed. R. Evid. 801(c)(2). Thus, out-of-court statements
introduced to establish a declarant’s state of mind, United States v. Salameh, 152 F.3d 88, 112
(2d Cir. 1998), or knowledge, United States v. Dupree, 706 F.3d 131, 136-38 (2d Cir. 2013), are
not hearsay. Here, the tipster’s statement was relevant to show what information was available to
Defendants to support the conclusion that they had probable cause to arrest Roberts. Because the
tip was not offered for its truth, it was not hearsay. See Fed. R. Evid. 801(c)(2).

         Roberts further argues that, because Defendants could not provide any information
establishing the tipster’s trustworthiness, we should treat it as an uncorroborated anonymous tip,
which is insufficient to support even reasonable suspicion. “Even a tip from a completely
anonymous informant—though it will seldom demonstrate basis of knowledge and the veracity
of an anonymous informant is largely unknowable—can form the basis of reasonable suspicion
or probable cause if it is sufficiently corroborated.” United States v. Elmore, 482 F.3d 172, 179
(2d Cir. 2007) (citation omitted). Whether an anonymous tip contains sufficient indicia of
reliability to support probable cause is a fact-dependent inquiry that largely depends on whether
the tipster conveys information that “demonstrate[s] inside information,” evincing “a special
familiarity with [the subject of the tip’s] affairs.” Alabama v. White, 496 U.S. 325, 332 (1990);
see also Florida v. J.L., 529 U.S. 266, 271-72 (2000). Here, to the extent that the tip forecasted
that Defendants would recover a gun from a bedroom in the apartment, it was corroborated.
Standing alone, this may not have been enough corroboration to support probable cause, but
Defendants reasonably could have considered it in conjunction with the other facts available to
them.




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        We have considered the remainder of Roberts’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its
own costs.


                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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