                                      PRECEDENTIAL


  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT

                 __________

                 No. 15-3393
                 __________

             DAVID ANDREWS,
                      Appellant

                      v.

        OFFICER ROBERT SCUILLI
              __________

On Appeal from the United States District Court
   for the Western District of Pennsylvania

   (District Court Civil No. 2-13-cv-01657)
   District Judge: Honorable Cathy Bissoon

           Argued October 25, 2016

     BEFORE: VANASKIE, KRAUSE,
      and NYGAARD, Circuit Judges


            (Filed: April 10, 2017)
Timothy P. O'Brien, Esq. [Argued]
1705 Allegheny Building
429 Forbes Building
Pittsburgh, PA 15219

      Counsel for Appellant


Carol A. VanderWoude, Esq. [Argued]
Marshall Dennehey Warner Coleman & Goggin
18th Floor, Suite 2300
2000 Market Street
Philadelphia, PA 19103

      Counsel for Appellee

                        __________

                OPINION OF THE COURT
                      __________

NYGAARD, Circuit Judge.

                              I.

      David Andrews was found not guilty of the crimes for
which he was charged. He brought suit against Officer
Robert Sciulli for false arrest and malicious prosecution.1 On

1
  We note that Officer Sciulli’s name is spelled “Scuilli” in
various places throughout the record, in our Court’s caption,
and in that of the District Court. Nonetheless, it is apparent




                              2
appeal he contends that the District Court erred by granting
summary judgment, on the basis of qualified immunity, in
favor of Sciulli. We agree. We will reverse the District
Court’s judgment and remand the cause for trial.

                              II.

       On November 25, 2012 in Stowe Township, Pa,
Brooke Wagner was walking on a sidewalk from a friend’s
house to her home. She was fifteen years old. A man in a car
approached her and asked if she wanted a ride. She told him
“no.” He demanded that she get in the car. Wagner again
refused and told him that she would report him to the police.
He sped away. She used her mobile phone to call her mother,
who told her to go home. The mother then called the police.

       Both Officer Sciulli and Officer Antonio Reymundo
Ruiz of the Stowe Township Police Department arrived at
Wagner’s home within minutes of the mother’s report. Upon
questioning by Ruiz, Wagner described the vehicle as a red,
four-door sedan. She said that the car had a Pennsylvania
license plate bearing the letters ACG. She described the
driver as a white male with dark hair, around 35 years old.
Ruiz gave this information to Sciulli, who then went to the
location of the incident. Sciulli prepared an Incident
Investigation Report that same day, recording the details
Wagner had provided.



from his police reports that the correct spelling of Appellee’s
name is “Sciulli,” Appx 130, 145, and we will use that
spelling in our opinion.




                              3
       The next day, the mother was driving Wagner home
from a grocery store when Wagner saw a red car. She told
her mother that it was the car that had stopped next to her the
day before. She noted that the license number was JDG4817.
They followed the car until it stopped in a parking lot. Her
mother drove into the lot and parked. Wagner observed the
driver get out and walk into a building. She believed he was
the man that tried to lure her into the car on the day before.

        Wagner’s mother then drove her directly to the police
station. They met with Sciulli and Officer Gruber.2 Wagner
reported what she observed: the red car, the full license
number, and the driver. She also stated her conclusion that
this was the car and man she encountered the previous day.
The officers checked the license number, JDG4817, in the
JNET database and identified the car as belonging to David
Andrews. They obtained Andrews’ license photo and created
a photo array with images of Andrews and seven other men.3
Sciulli presented the lineup to Wagner and instructed her to
circle the picture of anyone she recognized. Wagner circled
the image of Andrews.
        After Wagner and her mother left the station, Sciulli
went to the parking lot they said was the location of Andrews’




2
    The record does not provide Officer Gruber’s full name.
3
  There is a discrepancy on whether Gruber, or both Gruber
and Sciulli prepared the photo lineup. We do not regard this
as material to the matter, and merely note the dispute.




                                4
car and he looked at the vehicle.4 Andrews’ automobile was
not a four-door sedan, but a red, three-door coupe.5

     Sciulli drafted an affidavit of probable cause to arrest
Andrews. The affidavit, dated November 28, 2012, stated:

              Officers   were    notified    on
              11/25/12 at approximately 1112
              hours, of a possible child luring

4
  We discuss the sequence of Sciulli’s observation of the car
and his writing the probable cause affidavit in greater detail
later in the opinion. See infra pp 11-13.
5
 The District Court refers to Andrews’ car as a “three-door
hatchback.” Andrews v. Sciulli, No. CIV.A. 13-1357, 2015
WL 5732101, at *4 (W.D. Pa. Sept. 30, 2015). However, the
record shows that Andrews’ car was a 2001 Saturn SC.
Appx. 240. Andrews described this car as a coupe style (as
opposed to a sedan) with one door on the passenger side. On,
the driver’s side, there is a full door and a small rear-hinged
door. The small door aided access to the backseat. There is
no mention of a hatchback door or lid in the rear of the car
anywhere in the record. Sciulli did not raise this detail at the
District Court and admitted in deposition that he knew the car
was not a four-door sedan, as Wagner described. Therefore,
the District Court’s seeming error in characterizing the car as
a “hatchback” is of no real consequence. Nonetheless, we
will refer to Andrews’ car as a “three-door coupe” to
distinguish it from the “four-door sedan” that Wagner
described.




                               5
incident. I, officer Sciulli, and
officer Ruiz were dispatched to
1309 Island Avenue to meet the
victim. At this time, officers
spoke with the victim.         The
female juvenile’s information was
obtained and is on record and
said juvenile and parent will be
present at all court hearings.

The victim (female juvenile age
15) stated that while walking
home from a friend’s house, a red
vehicle pulled up next to her
while walking on the sidewalk
and asked her (juvenile age 15) if
she wanted a ride. The victim
stated “NO”. The defendant then
said “COME ON, JUST GET
IN”. The victim then said “NO,
I’M FINE. Now I am going to
report you”. The victim then
stated that the vehicle sped away.

The victim then described this
male as a middle aged white male
with dark hair with streaks of
gray.     Victim described the
vehicle as a red 4 door sedan.

On 11/26/12, the victim spotted
this same vehicle described
above, driving on Island Avenue,




                6
while riding with her mother. She
identified the plate as JDG4817,
PA tag.      They followed the
vehicle to Axion, and victim again
positively identified the male
driver as the suspect she
encountered the previous day.

The victim and her mother came
to the station to give officers this
information. Officers ran the PA
plate, JDG4817, and found it to be
registered    to     David    Gene
Andrews, out of Beaver Falls, PA.
Based on this information,
officers created a line up using
similar identifiers as Andrews.

The victim was shown a line up,
created by myself and officer
Gruber, generated by descriptors
through J-NET[sic]. The victim
was asked to look at the pictures
and to see if there was anyone of
the pictures that she recognized as
the driver of the car. She was
advised that he might or might not
be in the pictures. The victim
looked at the pictures and almost
immediately picked out the
picture of defendant.          The
defendant was identified through
JNET Pa. drivers [sic] license as




                 7
              David Gene Andrews,         DOB
              [REDACTED].

              Your affiant respectfully requests
              that a warrant be issued for David
              Gene Andrews based on the facts
              enumerated above.

Appx. 245.6

       The magisterial district judge reviewed the affidavit
and issued the arrest warrant on November 28, 2012. That
same day, police arrested Andrews and charged him with
luring a child into a motor vehicle, stalking, corruption of a
minor, and harassment. In a bench trial, he was acquitted of
all charges in June 2013. Andrews filed this lawsuit on
November 20, 2013. The District Court granted Sciulli’s
motion for summary judgment on September 30, 2015. This
appeal followed.

                             III.

                             A.




6
  The affidavit refers to “Axion.” This location is referenced
as “Axiom” in other places in the record. See e.g. Appx. 150.
The record does not ground a conclusion on the correct
spelling, so we merely note the difference and leave the
affidavit as is.




                              8
       We review de novo the District Court’s grant of
summary judgment. Estate of Smith v. Marasco, 318 F.3d
497, 505 (3d Cir. 2003).7 Summary judgment is appropriate
when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Fed
R. Civ. P. 56(a). When we review the District Court’s grant
of summary judgment, we will reverse only in those instances
when we conclude that material facts are in dispute, or when
we determine that the undisputed facts—viewed in a light
most favorable to the non-moving party—could objectively
support a jury’s verdict in favor of the non-moving party.
Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir.
1995).

       Andrews raises claims of false arrest and malicious
prosecution against Sciulli. To assess claims of false arrest,
the court must determine whether “the arresting officers had
probable cause to believe the person arrested had committed
the offense.” Dowling v. City of Philadelphia, 855 F.2d 136,
141 (3d Cir. 1988). Malicious prosecution requires evidence
that:

                (1) the defendant[] initiated a
                criminal proceeding; (2) the
                criminal proceeding ended in the
                plaintiff’s   favor;   (3)    the
                proceeding was initiated without
                probable     cause;    (4)    the
                defendant[] acted maliciously or
                for a purpose other than bringing

7
    We have jurisdiction pursuant to 28 U.S.C. §1291.




                                9
             the plaintiff to justice; and (5) the
             plaintiff suffered a deprivation of
             liberty consistent with the concept
             of seizure as a consequence of a
             legal proceeding.

DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d
Cir.2005).

        However, Sciulli contended at summary judgment that
he has qualified immunity from this lawsuit because probable
cause grounded the arrest and prosecution. “‘[G]overnment
officials performing discretionary functions, generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”’ Orsatti, 71 F.3d at 483 (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). 8 Since the District

8
  ‘“A court required to rule upon the qualified immunity issue
must consider, then, this threshold question: Taken in the
light most favorable to the party asserting the injury, do the
facts alleged show the officer’s conduct violated a
constitutional right? This must be the initial inquiry. If no
constitutional right would have been violated were the
allegations established, there is no necessity for further
inquiries concerning qualified immunity. On the other hand,
if a violation could be made out on a favorable view of the
parties’ submissions, the next, sequential step is to ask
whether the right was clearly established.’” Wright v. City of
Philadelphia, 409 F.3d 595, 600 (3d Cir. 2005) (quoting
Saucier v. Katz, 533 U.S. 194, 201 (2001).).




                              10
Court decided that no constitutional violation occurred, we
examine this first.

                              B.

       The District Court correctly ascertained that, since
false arrest and malicious prosecution hinge on probable
cause, the constitutional violation question in this case turns
on whether “‘a reasonable officer could have believed that
probable cause existed’ to arrest” the plaintiff at that time.
Blaylock v. City of Philadelphia, 504 F.3d 405, 411 (3d Cir.
2007) (quoting Hunter v. Bryant, 502 U.S. 224, 228-29
(1991)). Moreover, because Sciulli arrested Andrews on a
valid warrant, the District Court properly focused its probable
cause analysis on whether Sciulli ‘“knowingly and
deliberately, or with a reckless disregard for the truth, made
false statements or omissions that create[d] a falsehood in
applying for a warrant.’” Sherwood v. Mulvihill, 113 F.3d
396, 399 (3d Cir. 1997)). Therefore, we must concentrate on
two elements: first, whether “the officer, with at least a
reckless disregard for the truth, ‘made false statements or
omissions that create[d] a falsehood in applying for a
warrant,’ and second, whether those assertions or omissions
were ‘material, or necessary, to the finding of probable cause.
[Wilson v. Russo, 212 F.3d 780, 786-87 (3d Cir. 2000)]
(quoting Sherwood, 113 F.3d at 399).’” Dempsey v. Bucknell
Univ., 834 F.3d 457, 468–69 (3d Cir. 2016).
       However, as we recently acknowledged, a certain
tension exists when probable cause is at issue in a motion for
summary judgment. Dempsey, 834 F.3d at 468. This is




                              11
particularly so for analyses that center                upon
misrepresentations and omissions in the affidavit of probable
cause. Although a finding of probable cause generally can be
based on an officer’s credibility determinations and
independent assessments of conflicting evidence, “it is
axiomatic that at the summary judgment stage, we view the
facts in the light most favorable to the nonmoving party.”
Dempsey, 834 F.3d at 468. As a result:

             [We cannot] exclude from the
             probable       cause       analysis
             unfavorable facts an officer
             otherwise would have been able
             to consider. Instead, we view all
             such facts and assess whether any
             reasonable jury could conclude
             that those facts, considered in
             their totality in the light most
             favorable to the nonmoving party,
             did not demonstrate a “fair
             probability” that a crime occurred.

Id. For these reasons we rely on our general rule that 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.’” Wilson,
212 F.3d at 788 (quoting United States v. Clapp, 46 F.3d 795,
801 n. 6 (8th Cir. 1995)). Misleading assertions can relate to
even “minor details,” and do not need a separate
determination of relevance. The focus in these instances is
upon evidence demonstrating that the affiant willingly and
“affirmatively distort[ed] the truth.” Id. at 788. Omissions




                             12
are made with reckless disregard where “an officer withholds
a fact in his ken that ‘[a]ny reasonable person would have
known . . . was the kind of thing the judge would wish to
know.’” Id. (quoting United States v. Jacobs, 986 F.2d 1231,
1235 (8th Cir.1993)).

                              C.

        The District Court found an omission in the affidavit
Sciulli prepared. It concluded that Sciulli was aware that
Wagner reported a partial license plate–ACG—on the day of
the incident, but omitted it from his affidavit. It ruled that a
reasonable person would know that a judge would want to see
this in the probable cause affidavit.

        The District Court was also convinced that Sciulli
willfully made a number of false or misleading assertions.
Specifically, Sciulli falsely represented Wagner’s description
of the perpetrator as a “middle aged white male with dark hair
with streaks of gray.” Appx. 245. The police incident report
Sciulli prepared indicates she said that the man was “about 35
years old,” with “dark hair.” Appx. 130. The District Court
noted that Sciulli’s averments more closely aligned with
Andrews’ driver’s license photo, and concluded from this that
Sciulli’s actions went beyond carelessness or simple
negligence. These were affirmative assertions of misleading
information.

       Next, the District Court was convinced that, due to the
license plate differences, Sciulli had an “obvious reason” to
doubt that his assertion that Wagner spotted the “same
vehicle” the day after the incident. Andrews, 2015 WL
5732101, at *6. Similarly, it concluded Sciulli’s statement




                              13
that Wagner positively identified Andrews “again” was
inaccurate because it overstated her confidence in the
identification. None of these conclusions by the District
Court are at issue in this appeal.9

       We are convinced, however, that the District Court
erred by failing to identify an additional omission. In spite of
ruling that Sciulli’s reference to the “same vehicle” was a
misleading assertion, the District Court concluded that the
record did not provide any evidence that the officer knew
there were differences between Andrews’ car and the
perpetrator’s car. This is error. 10 Sciulli affirmed that, after
speaking with Wagner and her mother on November 26, 2012
about the location of Andrews’ car, he went to look at the


9
  Andrews claims that the District Court erred by failing to
rule on the impact of Sciulli’s words to Wagner as he
presented the photo array to her. However, Sciulli included
what he said to Wagner in the affidavit. Appx. 245.
Therefore, Sciulli neither omitted or misrepresented these
words. Andrews also takes issue with certain remarks Sciulli
made after Wagner selected his photo. But, the District Court
properly ruled that this was irrelevant to Wagner’s decision
because it occurred after she selected a photograph.
10
  We presume that, if the District Court had reconstructed the
affidavit, it would have corrected the affidavit by changing
“this same vehicle” to “a vehicle.” In light of this, to be
consistent with the District Court’s findings, we treat the
details about Andrews’ car separately as an omission from the
affidavit, rather than a misrepresentation.




                               14
vehicle. He was aware, at that time, that the car was not a
four-door sedan.

                   Q. Did you make any
                   effort to go to the Axiom
                   parking lot to observe the
                   vehicle that Ms. Wagner or
                   [her mother] said was there
                   when they observed it on
                   November 26, 2012?

                   A. Yes.

                   Q. Okay, when did you go
                   to that parking lot?

                   A. I can’t recall an exact
                   time. It would have been
                   after speaking with them.

                   Q. When you saw that
                   vehicle, you knew that it
                   was not a four door,
                   correct?

                   A. Yes.

Appx. 151-52. Sciulli expressed uncertainty about the time,
not the date, that he went to the parking lot. Moreover, he
admitted knowing that Andrews’ car was different from
Wagner’s description. This is clear evidence that, at some
point on November 26, 2012, Sciulli knew that Andrews’ car
was different from the car Wagner described the previous




                             15
day.11 Sciulli equivocates only on whether he had this
knowledge before he wrote the affidavit. Appx. 152. But,
there is no dispute that Sciulli signed and swore to the
truthfulness of his affidavit on November 28, 2012. Appx.
245. This is significant.

        When an officer submits a sworn affidavit of probable
cause, he or she “is not free to disregard plainly exculpatory
evidence, even if substantial inculpatory evidence (standing
by itself) suggests that probable cause exists.” Dempsey, 834
F.3d at 469 (quoting Wilson, 212 F.3d at 790). Therefore,
even if Sciulli drafted the affidavit on November 26, 2012,
before going to the parking lot, he, at the very least, had good
reason to doubt, on November 28, 2012, the truthfulness of
his affidavit that falsely stated Andrews’ car was the same red
four-door sedan that Wagner described on the day of the
incident. Consistent with the District Court’s ruling on the
license plate number, we are confident that this omission
regarding the discrepancy in the number of doors on the cars
is something that “any reasonable person would know that a
judge would want to know.” Wilson, 212 F.3d at 783.

                              D.

       The District Court’s analysis focused on the omitted
license plate number and the overstatement of confidence
attached to Wagner’s positive identification of Andrews. But,

11
  Even if we were to read this portion of the record as
ambiguous, Andrews is entitled to a favorable, reasonable
inference at summary judgment that Sciulli possessed this
knowledge on November 26, 2012.




                              16
it did not present a reconstructed affidavit that corrects
misleading assertions and includes omitted evidence. The
memorandum opinion was filed roughly eleven months
before we clarified our requirement that courts “perform a
word-by-word reconstruction of the affidavit” to ensure that
all relevant evidence known to the police officer at the time is
considered in the materiality analysis. Dempsey, 834 F.3d at
470. Therefore, particularly since we have concluded that
there is an additional omission, we will—in the interest of
judicial economy—reconstruct the affidavit, rather than
require it to be done on remand. Id. at 475. It reads as
follows:

              Officers     were     notified  on
              11/25/12 at approximately 1112
              hours, of a possible child luring
              incident. I, officer Sciulli, and
              officer Ruiz were dispatched to
              1309 Island Avenue to meet the
              victim. At this time, officers
              spoke with the victim.         The
              female juvenile's information was
              obtained and is on record and
              said juvenile and parent will be
              present at all court hearings.

              The victim (female juvenile age
              15) stated that while walking
              home from a friend's house, a red
              vehicle with four doors pulled up
              next to her while walking on the
              sidewalk and asked her (juvenile
              age 15) if she wanted a ride. The




                              17
victim stated “NO”.           The
defendant then said “COME ON,
JUST GET IN”. The victim then
said “NO, I’M FINE. Now I am
going to report you.” The victim
then stated that the vehicle sped
away.

The victim then described this
male as a middle aged white
male with dark hair with streaks
of gray [about 35 years old].
Victim described the vehicle as a
red 4 door sedan. [She identified
a partial license plate as ACG,
PA tag.]

On 11/26/12, the victim spotted
this same vehicle described
above [a vehicle, a red three-
door coupe], driving on Island
Avenue, while riding with her
mother. She identified the plate
as JDG4817, PA tag.         They
followed the vehicle to Axion,
and victim again positively
identified the male driver as the
suspect she encountered the
previous day.

The victim and her mother came
to the station to give officers this
information. Officers ran the PA




                18
plate, JDG4817, and found it to be
registered    to     David   Gene
Andrews, out of Beaver Falls, PA.
Based on this information,
officers created a line up using
similar identifiers as Andrews.

The victim was shown a line up,
created by myself and officer
Gruber, generated by descriptors
through J-NET[sic]. The victim
was asked to look at the pictures
and to see if there was anyone of
the pictures that she recognized as
the driver of the car. She was
advised that he might or might not
be in the pictures. The victim
looked at the pictures and almost
immediately picked out the
picture of defendant.          The
defendant was identified through
JNET Pa. drivers [sic] license as
David Gene Andrews, DOB
[REDACTED].

Your affiant respectfully requests
that a warrant be issued for David
Gene Andrews based on the facts
enumerated above.

                E.




                19
       To affirm the District Court’s grant of summary
judgment, we must conclude that “no reasonable jury could
find facts that would lead to the conclusion” that the
reconstructed affidavit “lacked probable cause.” Wilson, 212
F.3d at 792. When the District Court ruled that the omissions
and misleading assertions it found were not material to
probable cause, it did so convinced that there were no
substantial distinctions between the facts in Wilson and in this
case. Although we ultimately conclude that Wilson is
distinguished, it does provide a useful point of reference in
our analysis of this case.

        In Wilson, a police officer (Darrin Russo) claimed that
probable cause for a warrant existed because an eyewitness
(the owner of a floral shop that was robbed) positively
identified Franklin Wilson from a photo array. Id. at 785.
Russo excluded some exculpatory evidence.12 We decided


12
   (1) Russo did not inform the court that the shop owner
(whose height was around 5ˊ6˝) estimated the robber’s height
on the day of the crime to be between 6ˊ2˝ and 6ˊ4˝; but, the
man she identified three days later in a photo lineup, Wilson,
was only 5ˊ11˝. Id. at 785. (2) Russo did not mention to the
court that the floral shop employee looked at the same photo
array and did not identify anyone. (The floral shop employee
estimated that the robber was 6ˊ5˝tall.) Id. (3) Russo did not
inform the court that a dental office employee, who linked the
others’ physical descriptions of the robber to Wilson, saw him
at a time that contradicted the account given by the two in the
floral shop. The dental office employee saw Wilson in the
shopping center around 3:30 PM; but, the shop owner and




                              20
that the exculpatory evidence Russo left out did not fatally
undermine the eyewitness’ positive identification and
concluded 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. at 791 (quoting Sharrar v. Felsing,
128 F.3d 810, 818-19 (3d Cir. 1997)).13 Nonetheless,
stressing that probable cause requires an individualized
analysis, we also said that “[i]ndependent 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.” Id. at 790. Therefore, since the District Court’s
probable cause ruling in this case rests squarely on Wagner’s
positive identification of Andrews, our materiality review
centers on whether any of the misleading assertions and
omitted facts that we corrected in our reconstructed affidavit
could outweigh this identification, or undermine reliance on
it.

                              F.



shop employee said the robber was in their store from 3:00
PM to 3:50 PM. Wilson, 212 F.3d at 784-85.
13
    Probable cause to arrest “exists whenever reasonably
trustworthy information or circumstances within a police
officer's knowledge are sufficient to warrant a person of
reasonable caution to conclude that an offense has been
committed by the person being arrested.” United States v.
Myers, 308 F.3d 251, 255 (3d Cir.2002).




                              21
       The first changes to the affidavit concern Wagner’s
physical description of the perpetrator from the day of the
incident. Sciulli misrepresented the description by, as the
District Court noted, making it hue closer to the image of
Andrews’ driver’s license photo. The reconstructed affidavit
reads as follows:

              The victim then described this
              male as a middle aged white male
              with dark hair with streaks of
              gray [about 35 years old].

We agree with the District Court’s application of Wilson to
these misleading assertions; standing alone, they would not be
material to probable cause.

        In Wilson, the police officer did not inform the court
that the shop owner estimated the robber’s height on the day
of the crime to be between 6ˊ2˝ and 6ˊ4˝; but, the man she
identified three days later in a photo lineup (Wilson), was
only 5ˊ11˝. Id. at 785. We ruled that “this indication of
unreliability does not, from the vantage point of the arresting
officer, fatally undermine the forceful positive identification.”
Id. at 791.

       We elaborated, however, that different facts could
produce different results. We posed the example of an officer
who is aware that a witness described the robber as 7ˊ tall, but
selected a person in a photo lineup who is actually 5ˊ tall.
This “substantial evidence of the witness's own unreliability”
could change the probable cause analysis. Id. at 790. We
also gave a scenario in which an officer knows about reliable,
independent, exculpatory DNA evidence that contradicts a




                               22
positive identification.     In such a case “the positive
identification would not be enough” to outweigh such
evidence. Id. These examples were, of course, illustrative of
a common sense approach to the materiality analysis; they are
not bright-line rules. See Illinois v. Gates, 462 U.S. 213, 232
(1983) (“[P]robable cause is a fluid concept—turning on the
assessment of probabilities in particular factual contexts—not
readily, or even usually, reduced to a neat set of legal rules.”);
see also Goodwin v. Conway, 836 F.3d 321, 327 (3d Cir.
2016) (Probable cause analysis uses a “common sense
approach” to issues grounded in a totality of the
circumstances.). Nonetheless, we can safely extract from
them a general principle that glaring discrepancies in a
witness’ testimony can undermine the reliability of an
eyewitness who provides a positive identification.14 The

14
  We regard “glaring differences” as those that would be , by
the lights of any reasonable person in the same circumstances,
significant because they fall well outside common-sense
margins of error that typically apply to witness’ subjective
observations involving estimation and approximation. These
types of discrepancies are not easily or reasonably reconciled.
Compare Gerstein v. Pugh, 420 U.S. 103, 121 (1975)
(Probable cause analysis “does not require the fine resolution
of conflicting evidence that a reasonable doubt or even a
preponderance standard demands.”(emphasis added)); and,
Dempsey, 834 F.3d at 481 (Witness estimates of time are
notoriously unreliable.); and, Peet v. City of Detroit, 502 F.3d
557, 564 (6th Cir. 2007) (The “differences are minor and are
of the sort to be expected when different eye witnesses
recollect the same event.”); with, Robinson v. Winslow Twp.,
973 F. Supp. 461, 471 (D.N.J. 1997) (“A reasonable jury




                               23
same is true when our review uncovers highly reliable,
independent, exculpatory evidence known by the officer.

        Applying this understanding to the facts in question
here, Sciulli’s misrepresentation of Wagner’s description of
the perpetrator’s age and hair, on its own, does not outweigh
or undermine her positive identification. Although Sciulli’s
misrepresentations did make Wagner’s description of the
perpetrator seem more like Andrews, correcting “middle
aged” to read “about 35,” and deleting a reference to a
“streaks of gray” in the perpetrator’s hair are, by our lights,
trivial differences that would not impact a reasonable jury’s
conclusions about probable cause. Sciulli’s misrepresentation
made his description of the perpetrator’s age inaccurate and
more vague. But, as with the height difference in Wilson, an
estimate of age is inherently grounded in a subjective
approximation that allows for reasonable margins of error.
Here, even after making appropriate corrections, we regard
the difference between “about 35” and Andrews’ actual age at


could conclude that although eyewitness descriptions are not
always accurate, the police should have known that the
eyewitnesses simply could not have described a 5ˊ4˝ man as
being six foot tall.”); and, Mendez v. Artuz, 303 F.3d 411, 415
(2d Cir. 2002) (In the context of a habeas corpus case, where
testimony described the shooter as between 5ˊ4˝ and 5ˊ8˝ and
130 pounds and the height and weight of the suspect was
6ˊ2˝and 190 pounds, the court said: “[t]he contradictory
eyewitness testimony about the shooter’s height and weight . .
. gives us pause. . . .These discrepancies are significant and
troubling.”).




                              24
that time (51) as difficult to visualize or estimate in any
precise way, falling within a margin of error that is expected
with approximations of this type. Therefore, this misleading
assertion did not obscure a discrepancy that is meaningful
enough, by itself, to create doubt about the credibility of the
witness.15 For these reasons, we conclude that Sciulli’s
misrepresentation, standing alone, would not be material to
the determination of probable cause here. Similarly, Sciulli’s
misrepresentation of Wagner’s description of the
perpetrator’s hair (adding the detail of “streaks of gray”) was
also undeniably inaccurate, and made the description sound
closer to Andrews’ hair color. Nonetheless, Wagner’s more
general reference to “dark hair” is still inculpatory (albeit less
strong), given that Andrews had black hair, and would not,
by itself, be material to probable cause.

       In summary, we conclude that this collection of
misrepresentations in Sciulli's affidavit concerning the
physical description of Andrews, standing alone, would not
be sufficient to prevent a fact-finder from concluding that the
reconstructed affidavit still established probable cause.16


15
   Like Wilson, our assessment of the materiality of the age
discrepancy might be different if Andrews was 80 (or perhaps
16) years old:     situations in which a mere error of
approximation would not reasonably explain the gap.
16
   Of course, we must consider whether misrepresentations
and reckless omissions, “considered in the context of the
affidavit as a whole were . . . material, or necessary, to the
finding of probable cause.” Dempsey, 834 F.3d at 477. Thus,
there may be instances when no single omission or




                               25
                               G.

       We turn, next, to the portion of the reconstructed
affidavit dealing with cars that Wagner linked to the crime.
We made the following corrections.

              Victim described the vehicle as a
              red 4 door sedan. [She identified
              a partial license plate as ACG,
              PA tag.]

              On 11/26/12, the victim spotted
              this same vehicle described
              above [a vehicle, a red three-


misrepresentation is sufficient to defeat a finding of probable
cause, but the combined effect of the omissions and
misrepresentations suffices to call into question the reliability
of the affiant and the affiant’s witnesses such that the
question of probable cause cannot be resolved on a summary
judgment motion. We analyze here the misrepresentations in
Sciulli’s affidavit concerning Wagner’s identification of
Andrews to make clear that the discrepancies concerning
Andrews’ physical characteristics would not, standing alone,
preclude a finding of probable cause. Of course, these are not
the only misrepresentations that we have found. At a trial, the
jury will be able to consider the reconstructed affidavit as a
whole to make the ultimate determination as to whether a
neutral magistrate, weighing both the inculpatory and
exculpatory information in the reconstructed affidavit, would
have found probable cause when presented with a properly
drawn affidavit.




                               26
              door coupe], driving on Island
              Avenue, while riding with her
              mother.

We agree with the District Court that Sciulli’s assertion that
Andrews’ car was the “same vehicle” conveyed a higher
degree of confidence in Wagner’s positive identification than
was due. Its materiality to probable cause, however, is best
understood in the context of the omissions that accompany it.
Therefore, we now turn to those.

        Sciulli’s affidavit hid from the magisterial district
judge the partial license plate number on the car Wagner
described immediately after the crime. It also did not disclose
that Andrews’ car was a three-door coupe. These details
plainly distinguish Andrews’ car from Wagner’s initial
description.     Unlike Wagner’s age estimate, these are
irreconcilable differences that are not easily or reasonably
explained. Importantly, Sciulli does not dispute this. He
argues only that he did not have timely knowledge of the
differences. All of this gives weight to the conclusion that
these discrepancies are “substantial evidence of the witness’s
own unreliability” sufficient to outweigh her positive
identification of Andrews. Id. at 791. However, there is one
additional aspect of this case that is decisive on this issue for
us. We can explain it most easily by focusing on a portion of
our decision in Wilson that, thus far, has not been discussed.

        In Wilson, three witnesses contributed information that
led to the decision by police to put Wilson’s image in a photo
array. A floral shop owner and employee (eyewitnesses to
the crime) gave physical descriptions of the robber, but
neither of them knew anything about the robber’s identity.




                               27
The third witness—a woman who worked nearby in a dental
office—was not an eyewitness to the crime. But, upon
hearing the descriptions from the floral shop owner and
employee, she aided police by linking these to Wilson (who
was a dental patient), giving police his name, and indicating
that he was in the area around the time of the robbery. Police
were then able to obtain Wilson’s picture, put it in a photo
array, and ask the floral shop owner and the floral shop
employee to look at it. Wilson, 212 F.3d at 784-85.

        In light of all of this, we ruled that the positive
identification was reliable evidence of probable cause, in part,
because: “[a]dded to this identification is the fact that
[another witness] testified that she saw Wilson in the vicinity
near the time of the theft.” Wilson, 212 F.3d at 791. It
mattered that the floral shop owner’s positive identification
lined up with the judgment of an unrelated witness that
Wilson was the robber. Wilson, 212 F.3d at 791; see also
Dempsey, 834 F.3d at 479 (corroborating testimony factored
into our conclusion that the corrected affidavit showed
probable cause).

       Here, unlike Wilson, all evidentiary roads lead back to
one person. Wagner was the only one who gave a description
of the perpetrator and car to police on the day of the crime.
She also was the only one who implicated Andrews by giving
police his license number after seeing his car the next day.
This license number was the sole impetus for police to
compile a photo array using the image of Andrews from
which the positive identification was made. There are no
other points of reference for Wagner’s positive identification.




                              28
        A lack of independent corroboration, alone, is not
necessarily fatal to the reliability of a positive identification
grounding probable cause in any given case. However,
having only one witness as the source of information about a
crime and perpetrator does, logically, cast a brighter light on
the body of evidence she or he provides. In such cases, the
significance of any consistency or discrepancy in the witness’
evidence is enhanced because these are the only indicia of the
witness’ reliability that are available. See United States v.
Singleton, 702 F.2d 1159, 1179 (D.C. Cir. 1983) (“[I]f we are
to rely upon the certainty of the witnesses, it is crucial to keep
in mind that the witnesses were also positive about a number
of aspects of their testimony that directly conflict with their
identifications.”).

       The discrepancy here does not focus on a physical
characteristic of the alleged perpetrator, but rather on the car
that he drove. Yet, details about the car are central to
Wagner’s account of the crime. As we already noted, the
analysis of probable cause is driven by common sense,
requiring that we review the totality of the circumstances.
Goodwin, 836 F.3d at 327. From this perspective, the
differences between the vehicle Wagner described on the day
of the crime and Andrews’ car cannot be easily or reasonably
explained or reconciled by the facts in the reconstructed
affidavit.

       All of this, inexorably, leads to the conclusion that
Wagner must have been, either, mistaken about her
observation of the car on the day of the crime; or, mistaken
one day later, when she identified Andrews’ car. This
substantial contradiction—combined with the lack of
independent corroboration of any aspect of the crime—




                               29
convinces us that Sciulli’s omissions and misleading assertion
are material to probable cause because they hid from the
magisterial district judge a discrepancy that potentially
undermines the sole witness’ reliability. Accordingly, we do
conclude that the reconstructed affidavit shows substantial
evidence of the witness’ own unreliability that could
outweigh Wagner’s positive identification. This question
must be resolved by the fact finder. See Lupyan v. Corinthian
Colleges Inc., 761 F.3d 314, 322 (3d Cir. 2014) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Therefore, it was error for the District Court to rule that “no
reasonable jury could find facts that would lead to the
conclusion that . . . [the reconstructed affidavit] lacked
probable cause.” Wilson, 212 F.3d at 792.17

17
     The reconstructed affidavit also states the following.

                They followed the vehicle to
                Axion,    and     victim    again
                positively identified the male
                driver as the suspect she
                encountered the previous day.

This is unquestionably misleading. Wagner gave police only
a description of the physical characteristics of the perpetrator
on the day of the incident. Therefore, when she watched
Andrews get out of his car in the parking the next day, she
was not positively identifying him “again.” As the District
Court ruled, the assertion overstates the confidence of
Wagner’s observations. Nonetheless, we conclude that, by
itself, this misleading assertion would not materially impact a
fact-finder’s analysis of probable cause.




                                 30
                               H.

        This leaves us with the question of whether the rights
at issue were clearly established at the time.18 We need not
dwell on this. “[T]here is no question that . . . the right to be
free from arrest except on probable cause, was clearly
established” at the time of Andrews’ arrest. Orsatti, 71 F.3d
at 483. Similarly, the right to be free from prosecutions on
criminal charges that lack probable cause was also known and
clearly established at the time that Sciulli prepared his
affidavit. See Donahue v. Gavin, 280 F.3d 371, 380 (3d Cir.
2002). Both rights were grounded in well-settled law and
thus, on the record of this case, "it would be clear to a
reasonable officer that [Sciulli's] conduct was unlawful in the
situation he confronted." Saucier v. Katz, 533 U.S. 194, 202
(2001).


                              IV.




18
   The District Court determined in the first stage of the
analysis that there was no constitutional violation, and did not
go any further. Because we reach a different conclusion
about constitutional violations, we will also rule on the purely
legal question of whether the law was clearly established,
rather than instruct the District Court to address it on remand.




                               31
       For all of these reasons, we will hold that the District
Court erred by granting summary judgment to Sciulli on the
basis of qualified immunity. Accordingly, we will reverse the
order of the District Court and remand the cause for trial.19




19
   Sciulli also argues that Andrews waived any Fourteenth
Amendment due process claim. But since Andrews states
that he is not pursuing a Fourteenth Amendment claim, this
argument is irrelevant.




                              32
