                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2002

Meyers v. Wolkiewicz
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1005




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                              NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                   No. 02-1005


                ANDRE MEYERS,

                              Appellant
                         v.

          THADDEUS WOLKIEWICZ;
                FRED BUCK;
             BERNARD MARTIN;
           WILLIAM KELHOWER;
             MICHAEL HARVEY;
               BRIAN PETERS;
            TIMOTHY BROOKS,
        INDIVIDUALLY AND IN THEIR
      OFFICIAL CAPACITIES AS CITY OF
      PHILADELPHIA POLICE OFFICERS


   On Appeal from the Untied States District Court
       for the Eastern District of Pennsylvania
            (D.C. Civil No. 00-cv-05750)
      District Judge: Hon. Lowell A. Reed, Jr.


     Submitted Under Third Circuit LAR 34.1(a)
               September 24, 2002

Before: BARRY, AMBRO and COWEN, Circuit Judges

             (Filed: October 30, 2002)
                                               OPINION


COWEN, Circuit Judge

        Plaintiff/Appellant Andre Meyers appeals from the District Court’s December 7,

2001 judgment in favor of Defendants/Appellees Detective Thaddeus Wolkiewicz, Fred

Buck, Bernard Martin, William Kelhower, Michael Harvey, Brian Peters, and Timothy

Brooks. We will affirm.

                                                   I.

        On November 17, 1999, Philadelphia Police officers arrested Meyers pursuant to an

arrest warrant for the armed robbery of three business establishments in Philadelphia: (1)

Save A Lot Market, 48th Street and Snyder Avenue, on February 7, 1999; (2)

Hammerheads Bar & Grill, 3517 Cottman Avenue, on May 8, 1999; and (3) Striped Bass

Restaurant, 1500 Walnut Street, on July 18, 1999. An affidavit of probable cause, signed

by Wolkiewicz, was submitted in support of the arrest warrant application.

        Before the issuance of this arrest warrant, Andre Wilson was arrested as one of the

robbers. Thomasine Jones, Wilson’s former girlfriend, went to the Philadelphia Police in

order to file assault charges against Wilson, and she provided statements regarding the

three robberies to the police on September 27, 1999, October 5, 1999, and October 11,

1999. Jones implicated both Wilson and another individual, named Andre but known as

Dre, as the perpetrators of the three robberies. From a mugshot, Jones identified Dre as



                                                   2
Meyers. Jones stated that she had known Meyers since the third grade. She claimed that

she had seen Meyers wear a yellow Spectaguard security guard uniform on two occasions

and that he owned a light silver Ford Taurus. Meyers asserts that he never worked as a

security guard, and he further claims that he neither owned nor drove a Ford Taurus.

        According to Jones, Wilson told her that, together with Dre, he robbed both the Save

A Lot and Hammerheads. She specifically said that Wilson put the bag containing the

money from the Hammerheads robbery in her bedroom and that Meyers eventually took

this bag. Based on statements by Wilson, Jones also implicated Meyers as a participant in

the Striped Bass robbery. 1 She identified Dre and Wilson from the surveillance tape of the

Striped Bass robbery.

        Eyewitnesses corroborated Jones’s account in several significant respects. Jones

informed the police that Wilson told her that he wore a mask during the Hammerheads

robbery and ordered the witnesses into the freezer. Several witnesses at Hammerheads

stated that they were told to go into the freezer and saw that one of the robbers was wearing

a mask. Wilson also told Jones that he hit a woman at the Stripped Bass with his gun. Laura

Russell, a Striped Bass employee, informed the police that one of the robbers struck her in

the face with a gun after she screamed.




  1
    Jones originally stated that Wilson and “Dre” robbed a downtown office building around
Sixteenth or Seventeenth Streets. She apparently corrected herself, stating that she
“thought it was an office building.” App. at 116. The details she provided are consistent
with the location of the Striped Bass and the circumstances of the robbery.

                                                   3
        Kenyatta Johnson, a former Hammerheads and Striped Bass employee, made

statements to the police on October 14, 1999 and October 20, 1999. Johnson, Wilson’s

cousin, claimed that both Wilson and Andre Williams told him that they robbed

Hammerheads. Johnson was shown a photograph of Meyers, and he specifically denied that

Meyers was involved in the Hammerheads robbery. When confronted with Johnson’s

assertion, Jones said that Johnson was lying because she had seen Meyers take the bag of

money from the Hammerheads robbery. Johnson initially told the police about a visit to

the Striped Bass on the Sunday before the robbery to see some former co-workers, but he

subsequently admitted that he had lied about the nature of his visit. He confessed that he

actually planned to rob the Striped Bass with Wilson and Williams and went to the

restaurant in order to determine the number of people on the premises. They did not rob

the Striped Bass on Sunday because Johnson was asked to leave. Johnson did not know who

actually committed the Striped Bass robbery. In a statement given on October 19, 1999,

Williams, a former guard employed by Honor Guard Security, admitted to two other

robberies but did not confess to the three robberies for which Meyers was arrested.

        The affidavit in support of the arrest warrant, while detailing the statements of Jones

and several eyewitnesses, failed to disclose the accounts of Johnson and Williams.

Johnson was arraigned, but the Commonwealth of Pennsylvania eventually withdrew the

charges against him. Meyers brought this action under 42 U.S.C. § 1983, alleging that

defendants, named in both their individual and official capacities, violated the Fourth, Fifth,

and Fourteenth Amendments to the United States Constitution and asserting several state

                                                      4
law claims. Defendants provided to Meyers a copy of the surveillance videotape from

which Jones identified Meyers, explaining in a cover letter that the Philadelphia District

Attorney’s Office could not locate the original. Meyers also attempted to depose Jones,

but she failed to appear at the scheduled times.

        The District Court granted defendants’ motion for summary judgment. In granting

summary judgment as to Meyers’s constitutional claims, the District Court concluded that

no reasonable jury could find that defendants lacked probable cause to arrest Meyers, made

a false statement in the affidavit of probable cause, or omitted any material fact from the

affidavit. It further rejected Meyers’s argument that the alleged failure of defendants to

produce Jones for a deposition prevents them from relying on her statements to the police.

The District Court similarly found that the defendants’ alleged failure to provide the

original surveillance tape of the Striped Bass robbery did not implicate the presumption

that this tape would exonerate Meyers. The District Court also granted summary judgment

regarding Meyers’s state law claims on grounds of immunity. Meyers filed a timely notice

of appeal.




                                                     5
                                                     II.

        We have jurisdiction over this appeal pursuant to our power to review final

judgments under 28 U.S.C. § 1291. Our review of the grant of a motion for summary

judgment in favor of a defendant is plenary, see, e.g., Merkle v. Upper Dublin Sch. Dist.,

211 F.3d 782, 788 (3d Cir. 2000), and we conduct the same analysis as the District Court

under Federal Rule of Civil Procedure 56(c), see, e.g., Boyle v. County of Allegheny

Pennsylvania, 139 F.3d 386, 393 (1998). Summary judgment is appropriate “where there

exists no genuine issue as to any material fact and the moving party is entitled to judgment

as a matter of law.” Merkle, 211 F.3d at 788 (citing Fed. R. Civ. P. 56(c)). All facts must

be viewed in the light must favorable to the non-moving party, and this party is entitled to

the benefit of all reasonable inferences. See, e.g., id.

        Meyers contends that genuine issues of material fact exist regarding whether

defendants lacked the probable cause necessary for a proper arrest under the United States

Constitution. According to Meyers, the District Court was also in error when it found that

defendants had produced the actual surveillance tape of the Striped Bass robbery. He

contends that defendants’ alleged failure to produce Jones and an affidavit or equivalent

evidence showing that Meyers was depicted on the surveillance tape raises a “presumption

that the evidence, if produced, would have been favorable to [Meyers.].”2 Meyers’s Br. at 8.




  2
     Meyers does not challenge the District Court’s grant of summary judgment with respect
to his state law claims.

                                                      6
        The District Court comprehensively examined Meyers’s probable cause allegations

in a step-by-step analysis. The Fourth Amendment to the United States Constitution

generally prohibits a police officer from arresting a citizen without probable cause. See,

e.g., Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995). The probable cause

ordinarily necessary for a constitutionally proper 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.” Id. at 483 (citation omitted). The District Court correctly

concluded that the affidavit of probable cause clearly established probable cause on its

face. However, Meyers’s claims do not implicate the facial sufficiency of this affidavit of

probable cause, and they instead raise the question of whether defendants knowingly or

recklessly disregarded the truth in seeking the arrest warrant.

        In Wilson v. Russo, 212 F.3d 781 (3d Cir. 2000), we stated:

        [A] plaintiff may succeed in a § 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. at 786-87 (citing Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)). Applying

this standard, the District Court found that, while defendants may have knowingly omitted

exculpatory evidence from the affidavit, no reasonable jury could conclude that such

omissions were material to the finding of probable cause. The District Court further



                                                     7
concluded that defendants did not make any false assertion with a reckless disregard for the

truth. The District Court did not err in reaching these conclusions.

        The omission inquiry is the most significant given the circumstances of this case.

There admittedly are genuine issues of material fact as to whether defendants omitted facts

from their warrant application knowingly or with a reckless disregard for the truth. A

police officer omits a fact with such disregard when the officer “withholds a fact in his ken

that ‘any reasonable person would have known that this was the kind of thing the judge

would wish to know.’” Id. at 788 (citation omitted). The affidavit of probable cause failed

to disclose the statements previously provided by Johnson and Williams. The District

Court correctly noted that the failure to include any reference to Williams’s statements

was not an omission for purposes of this probable cause analysis because Williams never

confessed to the three robberies for which Meyers was arrested. Johnson, however,

informed the police that both Williams and Wilson told him that they perpetrated the

Hammerheads robbery. He was shown a picture of Meyers and specifically denied that

Meyers was involved in the Hammerheads robbery. He also said that he, Wilson, and

Williams had intended to rob the Striped Bass but were forced to abandon their plan when

he was asked to leave the premises. These assertions relating to two of the three robberies

at issue were apparently matters that a judge would have liked to know in considering

whether to issue an arrest warrant.

        Any knowing or reckless omission must also be material or necessary to a finding of

probable cause in order to provide a basis for a successful claim of false arrest. In order to

                                                     8
ascertain the materiality of omissions, we “insert the facts recklessly omitted, and then

determine whether or not the ‘corrected’ warrant affidavit would establish probable cause.”

Id. at 789 (citing Sherwood, 113 F.3d at 399). The inculpatory evidence is then weighed

against the exculpatory evidence available to the police officer. Id. at 791.

        In this case, the District Court correctly concluded that any exculpatory evidence

provided by Johnson, when compared with the inculpatory statements of Jones, did not

undermine the finding of probable cause. Jones, who claimed she had known Meyers since

the third grade, implicated him as a perpetrator of the Save A Lot, Hammerheads, and

Striped Bass robberies. She identified Meyers from both a mugshot and the surveillance

tape of the Striped Bass robbery. The police also confronted Jones with Johnson’s

statement about the Hammerheads robbery, and she explicitly denied his claim, reiterating

that she had actually seen Meyers take the bag of money from the Hammerheads robbery.

Jones’s statements were actually corroborated in important respects by eyewitnesses. An

affidavit including Johnson’s statements would still have established probable cause, and

any omission from the affidavit therefore was not material.

         Defendants are also entitled to judgment as a matter of law with respect to

Meyers’s apparent claim that they made knowingly or recklessly false assertions in the

affidavit of probable cause. A police officer makes an assertion with a reckless disregard

with the truth “when ‘viewing all the evidence, [the officer] must have entertained serious

doubts as to the truth of this statements or had obvious reasons to doubt the accuracy of the

information he reported.” Id. at 788 (citation omitted). We agree with the District Court

                                                     9
that Meyers has failed to present evidence indicating that defendants had serious doubts as

to the truth of Jones’s statements or serious reasons to doubt their accuracy. Johnson’s

statements, while partially inconsistent with Jones’s account, were insufficient to raise

such doubts or reasons. In fact, Jones was apparently more credible than Johnson, who,

after lying to the police, admitted that he had planned to rob the Striped Bass with Wilson

and Williams. Jones did tell the police that Meyers drove a Ford Taurus and that she had

seen him wearing a yellow Spectaguard security guard uniform. Meyers denies that he ever

owned a Ford Taurus or worked as a security guard, and he notes that Williams admitted to

the police that he was a security guard. At the time they obtained the arrest warrant,

defendants were unaware that Meyers neither owned a Ford Taurus nor worked as a security

guard. See, e.g., Merkle, 211 F.3d at 790 n.8 (stating that police officer “was not required

to undertake an exhaustive investigation in order to validate the probable cause that, in his

mind, already existed”) (citations omitted). Furthermore, the mere fact that Williams

worked as a security guard does not mean that Meyers never wore a security guard uniform.




        The District Court therefore correctly held that defendants were entitled to the entry

of summary judgment based on both the omission and assertion prongs of the probable

cause analysis. Meyers’s final argument is based on alleged discovery violations. Meyers

contends that defendants failed to produce both Jones and the surveillance videotape of the

Striped Bass robbery viewed by Jones. He apparently invokes the spoliation doctrine and


                                                    10
contends that defendants’ alleged discovery failures give rise to an evidentiary inference in

his favor.

        Meyers failed to invoke the spoilation doctrine before the District Court or even

cite any authority in support of his assertion regarding defendants’ alleged failures of

production. Even considering the merits of Meyers’s argument, it is well established that

any inference only arises when the evidence was “within the party’s possession or control”

and when the party actually suppressed or withheld the evidence. Gumbs v. Int’l Harvester,

Inc., 718 F.2d 88, 96 (3d Cir. 1983). There is no indication that defendants had any control

over Jones or were responsible for her failure to appear for a deposition. Defendants also

furnished Meyers with a copy of the surveillance videotape of the Striped Bass robbery,

explaining that the Philadelphia District Attorney’s Office was unable to locate the original

tape. Defendants apparently made a good faith effort to obtain the original videotape. We

therefore conclude that this final argument is without merit.

                                                    IV.

        For the foregoing reasons, we will affirm the judgment of the District Court entered

on December 7, 2001.




TO THE CLERK:

        Please file the foregoing opinion.




                                                    11
 /s/ Robert E. Cowen
United States Circuit Judge




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