                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                     No. 13-3029
                                    _____________

                                 RADDY N. TORIBIO,
                                              Appellant

                                            v.

                      BERNARD SPECE; MICHAEL SADUSKY;
                           BERNARD WALASAVAGE
                               ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                           (D.C. Civil No. 3-10-cv-02441)
                  District Judge: Honorable Malachy E. Mannion
                                  ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 17, 2014
                                   ____________

                Before: RENDELL, ROTH and BARRY, Circuit Judges

                               (Filed: February 21, 2014)
                                     ____________

                                       OPINION
                                     ____________

BARRY, Circuit Judge

      Raddy Toribio was arrested for a string of bank robberies he did not commit, and

was released three days later. He filed an action pursuant to 42 U.S.C. § 1983 alleging

false arrest, false imprisonment and malicious prosecution against three members of the
Pennsylvania State Police. The District Court granted defendants’ motion for summary

judgment, finding that they had probable cause for the arrest, promptly effected Toribio’s

release upon discovering exculpatory evidence, did not act with malice, and were in any

event entitled to qualified immunity. Toribio appealed. We will affirm.

                                         I. Background

       On August 6, 2010, a man robbed the Susquehanna Bank in Schuylkill County,

Pennsylvania, the latest in a series of bank robberies in central Pennsylvania. Three bank

employees offered descriptions of the robber. Teller Deborah Steffee, who, in response

to the robber’s note, handed him money, said he was six foot to six foot three inches tall

with a goatee; another teller, Tara Pandher, who “had a glimpse of” the robber but “did

not see his face,” described his apparel and said he had a “fine lined beard” (181a); and

branch manager Christy Rebehn, who saw the robber dash through the parking lot from

her office window, described him as a “darker skinned not black male about” six foot tall

(168a).

       Investigators publicly disseminated a grainy, low quality photo taken by the

bank’s surveillance camera. The image showed the robber standing with his arms

crossed leaning against a wall. Although it provided a three-quarters view of the robber’s

face, the facial features appeared somewhat blurred, and a black baseball cap obscured

the shape of his head and forehead.

       Nonetheless, the photo immediately produced a tip. Cassandra Shoaff, Toribio’s

ex-girlfriend and the mother of his five-year old son, told a friend in the Allentown Police

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Department that she believed Toribio was the man in the photo. That information made

its way to Corporal Michael Sadusky, who was heading the investigation. When Sadusky

called Shoaff, she told him that “her son saw the photo of the defendant on the internet”

and said “‘that’s daddy.’” (132a). Sadusky gave hard copies of the photo and other

images captured by the surveillance camera to the Allentown Police Department, which,

in turn, forwarded them to Shoaff. Shoaff claimed to be “95% sure that the male in the

pictures” was Toribio, but could not “be 100% certain . . . due to the quality of the

pictures.” Id.

       To corroborate Shoaff’s identification, Trooper Bernard Walasavage arranged a

photo lineup using an array of head shots of Toribio and seven other Hispanic men.

Walasavage asked Steffee, Pandher and Rebehn to participate, even though Pandher and

Rebehn had already told investigators that they had not gotten a good look at the robber.

       Before conducting the lineup, Walasavage showed each of the women photos of

the robber from surveillance footage at Susquehanna Bank and several previously

targeted banks. At the lineup itself, Pandher, who had not seen the robber’s face, claimed

to be certain that the head shot of Toribio depicted the robber. Rebehn stated that she

“only saw [the robber] from the side and with his head down” and declined to identify

anyone. (132a). Steffee, however, the teller to whom the robber passed the note,

confidently identified Toribio.

       Satisfied that they had the right man, Trooper Bernard Spece applied for an arrest

warrant. The supporting affidavit described Shoaff as a “source who wished to remain

                                             3
anonymous.” (188a). It made no mention of her relationship to Toribio. With respect to

the photo lineup, the affidavit stated that both Pandher and Steffee positively identified

Toribio, but made no mention of Pandher’s statement that she never saw the robber’s

face, nor of Walasavage’s peculiar procedure of asking the participants to look at

surveillance photos before proceeding to the lineup.

       A warrant issued, and Toribio was arrested on August 10, 2010. At five foot nine,

Toribio was several inches shorter than certain witnesses had described. Concerned with

the discrepancy, Sadusky called Steffee and Rebehn, “advised both that [he] had located

the individual that was identified in the photo lineup,” and asked them to confirm the

identification by viewing him through a one-way glass window at the police station.

(133a). Upon seeing Toribio, Steffee “hugged [Sadusky] in elation” and “related that she

had no reservations that [Toribio] was the man who robbed the bank.” Id. Rebehn, too,

said she was sure Toribio was the robber, despite having previously declined to identify

him in the photo lineup.

       Two days later, another bank was robbed in Lancaster County. Sadusky learned

of the robbery the next day, and Toribio was released. All charges were dropped two

business days after the Lancaster robbery occurred.

       Toribio filed an action under § 1983 against Spece, and later a separate action

against Sadusky and Walasavage. The two cases were consolidated, and Toribio filed

amended complaints alleging one count of false arrest, one count of false imprisonment,

and one count of malicious prosecution. Defendants’ motion for summary judgment was

                                             4
granted on June 4, 2012, and this timely appeal followed.

                         II. Jurisdiction and Standard of Review

       The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343, and we

have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of an order

granting summary judgment. See Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009).

“A court may grant summary judgment only when the record shows that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as

a matter of law.” Id. (internal quotation marks omitted). “[T]he evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his favor,” but

the “mere existence of some evidence in support of the non-movant is insufficient to deny

a motion for summary judgment; enough evidence must exist to enable a jury to

reasonably find for the nonmovant on the issue.” Id. (internal quotation marks omitted).

                                       III. Analysis

       A. False Arrest

       “[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.”

Wilson v. Russo, 212 F.3d 781, 787 (3d Cir. 2000). “To determine the materiality of the

misstatements and omissions, we excise the offending inaccuracies and insert the facts

                                              5
recklessly omitted, and then determine whether or not the ‘corrected’ warrant affidavit

would establish probable cause.” Id. at 789 (internal quotation marks and citation

omitted).

       “Probable cause exists if there is a ‘fair probability’ that the person committed the

crime at issue.” Id. “[T]he evidentiary standard for probable cause is significantly lower

than the standard which is required for conviction” and “does not depend on whether the

suspect actually committed any crime.” Wright v. City of Philadelphia, 409 F.3d 595,

602 (3d Cir. 2005). “[S]ufficient probability, not certainty, is the touchstone of

reasonableness under the Fourth Amendment.” Hill v. California, 401 U.S. 797, 804, 91

S. Ct. 1106, 1111 (1971).

       Toribio identifies four misleading statements that he believes created a material

falsehood in the application for his arrest warrant: (1) it described Shoaff as an

“anonymous source” when in fact she was known to Sadusky as Toribio’s ex-girlfriend

and the mother of his child; (2) it did not mention that Shoaff expressed some doubt in

her identification of Toribio because of the low quality of the surveillance photos; (3) it

did not describe flaws in the lineup procedure; and (4) it did not mention that Toribio was

three to six inches shorter than the robber had been described.1

       Had the affidavit been as forthcoming as Toribio claims it should have been, the

facts set forth would have nonetheless established probable cause. For one thing, even if

there was some reason to question Shoaff’s motives, a description of her close

1
  It is unclear from the record whether any of the officers knew Toribio’s height before
the warrant was issued.
                                           6
relationship with Toribio would have indicated that she was better able than most people

to recognize him from surveillance photos. To be sure, the images were of poor quality

and lacking in detail, but Shoaff was still “95%” certain that it was him. And even if we

discount Pandher’s belated identification of Toribio as having been the result of

Walasavage’s display of surveillance photos prior to the lineup, Steffee’s identification

remained of significant value given that she engaged in a direct and extended interaction

with the robber at her teller’s window just half a day earlier.

       Thus, a more exhaustive warrant application would have described a near-certain

identification, based on surveillance photos, from a person who knew Toribio very well,

and a certain identification from the photo array by an eyewitness who got an excellent,

and recent, look at him. The only evidence going the other way was some discrepancy in

height. The evidence was more than sufficient to establish a “fair probability that

[Toribio] committed the crime at issue,” a standard which, of course, leaves ample room

for a mistaken identification. Wilson, 212 F.3d at 789 (internal quotation marks omitted).

       B. False Imprisonment

       Toribio argues that “once Corporal Sadusky saw [Toribio],” he should have

“realized that they had the wrong man” and released him, rather than conducting a one-

on-one show-up to confirm the identification. Appellant’s Br. at 33. That claim appears

to be based on the discrepancy in height between Toribio and the witness descriptions of

the robber that only became apparent to Sadusky upon viewing Toribio in custody.

       The “existence and scope of an officer’s duty to seek to release a suspect” after a

                                              7
lawful arrest is unsettled in this Court. Wilson, 212 F.3d at 792. In the First Circuit, no

duty exists, because “once probable cause has been established, a warrant issued, and an

arrest perfected, the ordinary course is for the prosecutor to decide whether to go forward,

and if he elects to proceed, for the judicial branch to make the final ascertainment of guilt

or innocence—not for the police to take matters into their own hands.” Brady v. Dill,

187 F.3d 104, 112 (1st Cir. 1999). In the Fifth Circuit, officers are required to disclose

“undeniably credible and patently exculpatory evidence to the prosecuting attorney’s

office.” Sanders v. English, 950 F.2d 1152, 1162 (5th Cir. 1992).

       We need not settle the unsettled issue. When Sadusky first became aware that

Toribio was shorter than the descriptions of the robber with which he had been provided,

Toribio had been arrested on a warrant, was in the custody of Pennsylvania State Police,

and there were positive identifications by Steffee and Shoaff. Any difference in height

was surely not “patently exculpatory.”

       Toribio also argues that “there was no . . . rush to get him out of jail and out from

under the criminal law procedure” after the defendants learned about the Lancaster

robbery. Appellant’s Br. at 33. When the defendants learned of that robbery, however,

Toribio was no longer in their custody but had been remanded to the Schuylkill County

Prison. Thus, the only possible obligation of the defendants in that situation would have

been to promptly disclose the information to someone who could apply for Toribio’s

release. They did just that.




                                              8
       C. Malicious Prosecution

       To succeed on a claim for malicious prosecution, a plaintiff must prove that the

proceeding against him was “was initiated without probable cause.” DiBella v. Borough

of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005). As discussed above, there was ample

probable cause for Toribio’s arrest.

                                       IV. Conclusion

       The order of the District Court will be affirmed. 2




2
  Given this disposition, we need not reach the issue of whether defendants were entitled
to qualified immunity.
                                             9
