     12-713-cv
     Stansbury v. Wertman

 1                  UNITED STATES COURT OF APPEALS
 2                      FOR THE SECOND CIRCUIT
 3
 4
 5                           August Term, 2012
 6
 7     (Argued: March 11, 2013            Decided: June 26, 2013)
 8
 9                          Docket No. 12-713-cv
10
11
12                           LINDA STANSBURY,
13
14                                               Plaintiff-Appellee,
15
16                                 -v.-
17
18                             CHAD WERTMAN,
19
20                                                 Defendant-Appellant,
21
22             JOSEPH LUTZ AND JOHN DOES 1 THROUGH 10,
23
24                                                         Defendants.*
25
26
27
28   Before:
29              WALKER, SACK, AND WESLEY, Circuit Judges.
30
31
32
33
34
35   Plaintiff-Appellee Linda Stansbury initiated this action in
36   the United States District Court for the Southern District
37   of New York (Holwell, Judge) pursuant to 42 U.S.C. § 1983
38   alleging false arrest and malicious prosecution. Defendant-

         *
           The Clerk of the Court is directed to amend the
     caption in the case to conform with the above.
                                     1
 1   Appellant Chad Wertman moved for summary judgment, asserting
 2   that (1) there was probable cause for the arrest and
 3   prosecution, or, in the alternative that (2) he was entitled
 4   to qualified immunity based on the existence of arguable
 5   probable cause. Defendant timely appeals from the district
 6   court’s January 24, 2012 opinion and order denying
 7   Defendant’s motion for summary judgment. We find that the
 8   district court erred by analyzing the evidence seriatim and
 9   in isolation. In its totality, the evidence provided
10   Defendant with probable cause to arrest and prosecute
11   Plaintiff; we therefore hold that Defendant is entitled to
12   judgment as a matter of law and REVERSE the judgment of the
13   district court and REMAND with instruction to enter judgment
14   in favor of Wertman.
15
16        REVERSED and REMANDED with instruction to enter
17   judgment in favor of Wertman.
18
19
20
21
22             SUDARSANA SRINIVASAN, Assistant Solicitor General
23                  (Barbara D. Underwood, Solicitor General,
24                  Cecelia C. Chang, Deputy Solicitor General, on
25                  the brief), for Eric T. Schneiderman, Attorney
26                  General of the State of New York, New York,
27                  NY, for Appellant Chad Wertman.
28
29             RANDOLPH M. McLAUGHLIN (Jeffrey M. Norton, on the
30                  brief), Newman Ferrara LLP, New York, NY, for
31                  Appellee Linda Stansbury.
32
33
34
35   WESLEY, Circuit Judge:
36
37        Chad Wertman (“Wertman”) appeals from the January 24,

38   2012 opinion and order of the United States District Court

39   for the Southern District of New York (Holwell, J.) denying

40   Wertman’s motion for summary judgment.   Linda Stansbury


                                   2
 1   (“Stansbury”) brought this action pursuant to 42 U.S.C.

 2   § 1983 alleging false arrest and malicious prosecution.

 3   Wertman moved for summary judgment, asserting that (1) there

 4   was probable cause for the arrest and prosecution, or, in

 5   the alternative that (2) he was entitled to qualified

 6   immunity based on the existence of arguable probable cause.

 7       The district court analyzed each piece of evidence in

 8   the case seriatim and in isolation and concluded that there

 9   was a genuine issue of material fact as to whether Wertman

10   had probable cause or arguable probable cause to arrest

11   Stansbury.   This was error.   Analyzing the evidence in its

12   totality, we hold that no reasonable trier of fact could

13   conclude that Wertman did not have probable cause to arrest

14   and to prosecute Stansbury.    We therefore reverse the

15   district court’s opinion and remand the case with

16   instructions to enter judgment for Wertman.

17                             Background

18       At 8:30 p.m. on April 4, 2006, a woman shoplifted

19   approximately $800 of goods from a Stop & Shop supermarket

20   in Somers, New York.   Mary Sue Cirrincione (“Cirrincione”),

21   the store detective who was trained “to focus on distinctive

22   facial characteristics,” observed the crime on the store’s


                                    3
 1   three-inch by five-inch monitor.     Cirrincione Decl.; see

 2   also Stansbury v. Wertman, No. 09-cv-04638-RJH, 2012 WL

 3   183849 at *1 (S.D.N.Y. Jan. 24, 2012).     Cirrincione alerted

 4   co-worker Mark John (“John”), who physically observed the

 5   perpetrator and watched her open tightly-folded, crisp, new

 6   Old Navy bags and place items from the shelves into the bags

 7   and then in her shopping cart.     Id.   When she tried to

 8   leave, John attempted to block the perpetrator’s exit and

 9   asked to see her receipt; she ran around him, exited the

10   building, and jumped into a white van.      Id.     John noted the

11   van’s license plate number as it drove away.         Id.

12       Cirrincione and John reported the incident to the

13   police, and New York State Trooper Chad Wertman arrived to

14   investigate.   Wertman recovered a bus receipt from an Old

15   Navy bag the perpetrator had left behind.         He watched the

16   videotape of the theft and took the tape as evidence.

17   Cirrincione and John both described the perpetrator as a

18   “black female wearing blue jeans and a maroon windbreaker;”

19   John added that she was “about 5'5".”      Id.     The bus ticket

20   and license plate number did not yield any additional leads.

21       Noting that the perpetrator’s Old Navy bags were in

22   mint condition, Wertman traveled to one of the two nearby


                                   4
 1   Old Navy stores.     The Old Navy manager reported that a

 2   middle-aged black woman had attempted to buy some clothing

 3   at the store at 8:08 p.m. that evening, but that her credit

 4   card was declined.        The manager reported that new bags,

 5   typically stored in the rear of the store, were discovered

 6   strewn on the ground near the door around the same time.

 7   Id. at *2.    Wertman traced the credit card receipt to a card

 8   belonging to Nicole Stansbury (“Nicole”), Linda Stansbury’s

 9   daughter.    After repeated attempts, Wertman was able to

10   contact Nicole by telephone; she alleged that she had been

11   in Old Navy on April 4        before visiting an A&P supermarket

12   and returning to her mother’s house.

13       Wertman went to Stansbury’s house on May 22 to

14   interview Nicole.     Wertman asserts that on his arrival, “he

15   recognized Linda Stansbury as the perpetrator he had seen on

16   the videotape.”     Id.     He interviewed both women, but his

17   “notes of the interview reflect that Linda was nervous, that

18   she would not answer his questions directly, and that Nicole

19   answered many of the questions he asked of her mother.”          Id.

20       After the interview, Wertman reviewed Stansbury’s

21   criminal history and discovered an arrest for grand larceny.

22   He then obtained a DMV photograph of Stansbury and asked


                                        5
 1   another trooper to prepare a photo array.     Before the array

 2   was complete, Wertman and two senior officers reviewed the

 3   videotape, compared it to the DMV photograph and confirmed

 4   their collective belief that Stansbury was the perpetrator.

 5        Wertman scheduled a follow-up interview with Linda and

 6   Nicole Stansbury at the police barracks in Somers.      He

 7   planned to have Cirrincione and John come to the station and

 8   view Linda Stansbury to see if they could identify her as

 9   the shoplifter; the Stansburys never arrived.     Id. at *3.

10   Because the photo array was not yet ready, Wertman showed

11   Stansbury’s DMV photograph to Cirrincione and John without

12   any control photographs, in violation of the New York State

13   Police Field Manual (“Field Manual”).1    Both Cirrincione and

14   John identified Stansbury as the perpetrator and signed a

15   sworn statement under penalty of perjury to that effect.

16   Cirrincione confirmed “without any doubt or reservation”

17   that Stansbury was the perpetrator, and John “was positively

18   without a doubt able to identify” her as the thief.      After

19   Wertman spoke with her attorney, Stansbury turned herself in

20   the next day; she was listed as 5'9" tall upon arrest.

          1
            The Field Manual instructs officers to “NEVER show a
     single photo of a suspect to a witness.” It also instructs
     officers to separate witnesses when showing them photographs of
     the suspect and to consult the district attorney’s office before
     conducting a photo array with fewer than six photographs included
     thereon.

                                     6
 1        Stansbury was tried for petit larceny in Somers Town

 2   Court.   After a two-day bench trial including testimony by

 3   Cirrincione and John, Stansbury was acquitted.         Two years

 4   later she commenced this suit, alleging false arrest and

 5   malicious prosecution under 42 U.S.C. § 1983.         Wertman moved

 6   for summary judgment; finding “genuine issues of material

 7   fact with respect to probable cause,” the district court

 8   denied his motion in January 2012.       Id. at *9.    Wertman

 9   timely filed this appeal.

10

11                               Discussion

12   I.   Jurisdiction and Standard of Review

13        This Court has jurisdiction to hear interlocutory

14   appeals of denials of motions for summary judgment where the

15   motion is predicated in whole or in part on assertions of

16   qualified immunity.   See, e.g., Amore v. Novarro, 624 F.3d

17   522, 529 (2d Cir. 2010).    Wertman alleges both that he is

18   entitled to qualified immunity based on the existence of

19   arguable probable cause and that he is entitled to judgment

20   as a matter of law based on the existence of probable cause.

21        We may exercise pendent jurisdiction to decide whether

22   Stansbury “has alleged a constitutional violation at all”


                                     7
 1   before deciding whether Wertman is shielded by qualified

 2   immunity.     Finigan v. Marshall, 574 F.3d 57, 61 (2d Cir.

 3   2009).      Although it is no longer required, see Pearson v.

 4   Callahan, 555 U.S. 223, 236 (2009), the probable cause

 5   inquiry may precede any inquiry into qualified immunity

 6   because there cannot be an     allegation of a constitutional

 7   violation where probable cause justifies an arrest and

 8   prosecution.      Panetta v. Crowley, 460 F.3d 388, 394-95 (2d

 9   Cir. 2006).    In this case, it is “beneficial,” Pearson, 555

10   U.S. at 236, to first address whether Wertman had probable

11   cause, because it best serves the interests of judicial

12   economy, see Escalera v. Lunn, 361 F.3d 737, 749 (2d Cir.

13   2004).   Thus, because    the probable cause inquiry is

14   inextricably intertwined with the immunity question, we will

15   exercise our “discretion[] [to] consider otherwise

16   nonappealable issues” based on our review of the question of

17   qualified immunity.      San Filippo v. U.S. Trust Co. Of N.Y.,

18   Inc., 737 F.2d 246, 255 (2d Cir. 1984); see also Golino v.

19   City of New Haven, 950 F.2d 864, 868-69 (2d Cir. 1991).

20        The standard of review here is well-established.2      We

          2
            We review denials of summary judgment de novo, construing
     “all evidence in the light most favorable to the non-moving
     party, drawing all inferences and resolving all ambiguities in
     [her] favor.” Amore v. Novarro, 624 F.3d 522, 529 (2d Cir.
     2010).

                                      8
 1   conclude that Wertman had both probable cause and arguable

 2   probable cause to arrest and prosecute Stansbury; the

 3   district erred in denying Wertman’s motion for summary

 4   judgment as to the false arrest and malicious prosecution

 5   claims.

 6

 7   II. False Arrest

 8       “‘[P]robable cause is an absolute defense to a false

 9   arrest claim.’”    Torraco v. Port Auth. of N.Y. and N.J., 615

10   F.3d 129, 139 (2d Cir. 2010) (quoting Jaegly v. Couch, 439

11   F.3d 149, 152 (2d Cir. 2006)).     “An officer has probable

12   cause to arrest when he or she has knowledge or reasonably

13   trustworthy information of facts and circumstances that are

14   sufficient to warrant a person of reasonable caution in the

15   belief that the person to be arrested has committed . . . a

16   crime.”   Jaegly, 439 F.3d at 152.    A court “must consider

17   [only] those facts available to the officer at the time of

18   the arrest and immediately before it.”     Panetta, 460 F.3d at

19   395 (internal quotation marks and emphasis omitted).     A

20   court examines each piece of evidence and considers     its

21   probative value, and then “look[s] to the totality of the

22   circumstances” to evaluate whether there was probable cause

23   to arrest and prosecute the plaintiff.     Id. (quotation marks

                                    9
 1   omitted).   If probable cause existed, it presents a total

 2   defense to Stansbury’s actions for false arrest and

 3   malicious prosecution; Wertman would be entitled to judgment

 4   as a matter of law.   Savino v. City of New York, 331 F.3d

 5   63, 75 (2d Cir. 2003).3

 6   A.   Available Evidence as to Probable Cause4

 7        The district court analyzed five separate pieces of

 8   evidence before concluding that Wertman was not entitled to

 9   a probable cause determination:

10        (1) Cirrincione’s and John’s eyewitness accounts of
11        the shoplifting; (2) the store surveillance tape;
12        (3) [Wertman’s] identification of Stansbury as the
13        perpetrator on the surveillance tape; (4) [other
14        officers’] opinion[s] that Stansbury’s DMV picture
15        matched the perpetrator depicted on the
16        surveillance tape; and (5) Cirrincione’s and John’s
17        photo identification.
18
19   Stansbury, 2012 WL 183849, at *4.    The record also includes

20   uncontested evidence that the district court chose not to


          3
            In analyzing arguable probable cause for Wertman’s
     qualified immunity defense, we examine the same evidence under
     the same circumstances and evaluate “whether it was objectively
     reasonable for the officer to conclude that probable cause
     existed.” Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir.
     2007). If an officer had probable cause, he or she also had
     arguable probable cause and is protected by qualified immunity.
          4
            The evidence in this section is listed in the district
     court’s opinion and is not meaningfully contested by the parties.
     Insofar as Stansbury claims that some of the documentation in the
     record is invalid or does not exist, such assertions do not
     constitute “a ‘genuine’ dispute as to those facts.” Scott v.
     Harris, 550 U.S. 372, 380 (2007).

                                    10
 1   analyze:   the shoplifter’s use and possession of pristine

 2   Old Navy bags; Wertman’s observations of Stansbury’s

 3   behavior during his interview; his knowledge of Stansbury’s

 4   previous larceny arrest; and similarities between

 5   Stansbury’s handbag and the perpetrator’s handbag.

 6       The district court began its discussion by analyzing

 7   the evidence related to the videotape – including Wertman’s

 8   identification of Stansbury in person, his colleagues’

 9   corroborating identifications of Stansbury based on her DMV

10   photograph, and the videotape itself.    The district court

11   noted that the evidence was probative, but not sufficient,

12   finding that nothing in it was so persuasive “that a jury

13   would be unreasonable in concluding that the videotape was

14   not ‘sufficient to warrant a person of reasonable caution’”

15   in concluding that Stansbury was the perpetrator.     Id.

16   (quoting Jaegly, 439 F.3d at 152).   We do not disagree with

17   the court here, but that does not end the inquiry.     The

18   district court noted that “[t]here are several instances on

19   the videotape where the perpetrator’s face appears with some

20   definition,” though the perpetrator’s face did not appear to

21   perfectly match Stansbury’s DMV photo.    Id.   The visibility

22   of the perpetrator on the tape makes Wertman’s

23   identification probative and allows the other officers’

                                   11
 1   identifications based on the tape to contribute meaningfully

 2   to Wertman’s probable cause to arrest Stansbury.

 3        After disposing of the videotape, the court proceeded

 4   to analyze the identifications made by Cirrincione and John

 5   at the police barracks.    As an initial matter, the district

 6   court rightly condemned the use of a one-photograph array to

 7   confirm identity.   Id. at *5 (decrying the absence of

 8   indicia of reliability spelled out in Neil v. Biggers, 409

 9   U.S. 188, 198 (1972)).    Showing suspects “singly to persons

10   for the purpose of identification . . . has been widely

11   condemned,” even when done in person.     Stovall v. Denno, 388

12   U.S. 293, 302 (1967), overruled on other grounds by Griffith

13   v. Kentucky, 479 U.S. 314 (1987).    The use of a single

14   photograph of the suspect is not more reliable.

15        However, “absent circumstances that raise doubts as to

16   the victim’s veracity,” a victim’s identification is

17   typically sufficient to provide probable cause.      Singer v.

18   Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)

19   (holding that a store clerk’s description of an incident of

20   shoplifting supported a finding of probable cause).5


          5
            “Under New York law an identified citizen informant is
     presumed to be reliable.” Caldarola v. Calabrese, 298 F.3d 156,
     165 (2d Cir. 2002) (citing People v. Hetrick, 80 N.Y.2d 344, 349
     (1992)). “We have endorsed a similar proposition.” Id.

                                    12
1   Wertman had no reason to doubt the honesty of either

2   Cirrincione or John, each of whom made statements under

3   penalty of perjury and lacked incentive to single out

4   Stansbury as the perpetrator.6       Although Cirrincione’s and

5   John’s identifications were too problematic alone to provide

6   probable cause to arrest Stansbury, this flaw does not

7   render the evidence non-probative.       “[E]vidence need not be

8   admissible at trial in order to support a finding of

9   probable cause.”7   Phillips v. Allen, 668 F.3d 912, 915 (7th


    (citations omitted). The same rule applies to identifications of
    the perpetrator from photographic arrays. See, e.g., People v.
    Jones, 2 N.Y.3d 235, 238 (2004).
         6
           This Court affords greater weight when witnesses testify
    or swear “under threat of the criminal sanction for perjury.”
    United States v. Hernandez, 85 F.3d 1023, 1028 (2d Cir. 1996).
         7
           The district court, applying the factors set forth in Neil
    v. Biggers, 409 U.S. 188 (1972), determined that Cirrincione’s
    and John’s identifications lacked sufficient “indicia of
    reliability” to support probable cause to arrest Stansbury. See
    Stansbury v. Wertman, No. 09-cv-04638-RJH, 2012 WL 183849, at *5-
    6 (S.D.N.Y. Jan. 24, 2012) (discussing “[1] the opportunity of
    [Cirrincione and John] to view the criminal at the time of the
    crime, [2] [Cirrincione’s and John’s] degree of attention, [3]
    the accuracy of [Cirrincione’s and John’s] prior description of
    the criminal, [4] the level of certainty demonstrated by
    [Cirrincione and John] at the confrontation, and [5] the length
    of time between the crime and the confrontation”). Although we
    agree with the district court that the identification procedures
    employed here were suggestive, Biggers concerns the admissibility
    of identifications at criminal trials, not whether an
    identification can support probable cause to arrest a suspect.
    Application of the Biggers framework requires the kind of
    hindsight that, while useful in determining whether evidence
    should be admitted at trial, is inappropriate when deciding
    whether a police officer had probable cause to arrest. See

                                    13
 1   Cir. 2012) (interpreting Illinois v. Gates, 462 U.S. 213

 2   (1983)).   “[A]lthough not able to be used at his [criminal]

 3   trial, [victim’s] identification of [the perpetrator] may

 4   properly provide a basis for probable cause to arrest him.”

 5   People v. Nelson, 79 A.D.2d 171, 174 (N.Y. App. Div. 4th

 6   Dep’t 1981) (Cardamone, Justice) (abrogated on other grounds

 7   by People v. Cintron, 199 A.D.2d 526 (N.Y. App. Div. 2d

 8   Dep’t 1993)).

 9        The shoplifter’s Old Navy bags, which in the video

10   appear never to have been unfolded or used, properly

11   narrowed Wertman’s investigation to the universe of people

12   who may have visited an Old Navy shortly before the robbery.

13   Wertman’s discovery that unused bags were seen strewn on the

14   floor at a nearby store 22 minutes before the robbery,

15   around the time a “middle aged black woman” used Nicole



     Phillips v. Allen, 668 F.3d 912, 915 (7th Cir. 2012)
     (“Application of the Biggers framework is possible, however, only
     after evidence has been gathered and an adversarial hearing
     held.”). For the purposes of determining whether an
     identification can support probable cause, the basic question is
     whether the identification procedure was “so defective that
     probable cause could not reasonably be based upon it.” Jenkins,
     478 F.3d at 93. Because there is no suggestion that Cirrincione
     or John was coerced into identifying the plaintiff, or that
     Wertman thought either witness had any motive to lie, we conclude
     that the identification procedures employed here - although
     highly improper - were not so flawed that they could not
     contribute to a finding of probable cause. .

                                    14
 1   Stansbury’s credit card at Old Navy, was undoubtedly

 2   relevant to assessing his probable cause determination.

 3   This circumstantial evidence that Stansbury may have had an

 4   opportunity to obtain unused Old Navy bags just prior to the

 5   shoplifting incident is probative as to the likelihood that

 6   she was the perpetrator.

 7        When Wertman interviewed the Stansburys about their

 8   presence at Old Navy, he observed that Linda Stansbury was

 9   very nervous and evasive.    Furthermore, Wertman noticed that

10   Nicole tried to cover for her mother during the interview.

11   A police officer’s contemporaneously recorded observation

12   that a suspect was evasive when questioned may be a

13   significant factor in a probable cause determination.      See,

14   e.g., United States v. Gagnon, 373 F.3d 230, 238 (2d Cir.

15   2004).8   “Courts consider several factors when determining

16   [probable cause], including the defendant’s excessive

17   nervousness . . . and evasive or contradictory answers to

18   questions.”   People v. Kelley, 306 A.D.2d 699, 700 (N.Y.

19   App. Div. 3d Dep’t 2003) (cited approvingly by People v.

          8
            In another case, how much weight to give an officer’s
     observations in this regard might depend in part on the officer’s
     subjective mindset, even if such a mindset does not in itself
     determine the existence or absence of probable cause, but
     Wertman’s mindset was not at issue in this case. See Devenpeck
     v. Alford, 543 U.S. 146, 153-154 (2004).

                                    15
 1   Hall, 10 N.Y. 3d 303, 321 (2008)).     Accordingly, the

 2   district court erred by failing to consider this interview

 3   in its probable cause analysis.

 4        Other evidence tending to make it more likely that

 5   Stansbury was the Stop & Shop culprit included Wertman’s

 6   knowledge of her 1997 arrest for grand larceny in White

 7   Plains and Wertman’s comparison of her handbag to the

 8   perpetrator’s handbag as observed on the video.      Though

 9   neither piece of information individually yields a

10   significant step towards establishing probable cause, the

11   district court should have considered both as part of the

12   totality of circumstances.    Similarly, John’s assertion that

13   the perpetrator was 5'5" tall (in light of Stansbury’s 5'9"

14   stature) is part of the total mix of evidence necessary to

15   properly evaluate Wertman’s decision to arrest Stansbury.9

16   B.   Probable Cause Under the Totality of the Circumstances

17        The district court analyzed the evidence seriatim,

18   finding that no piece of evidence was sufficient in itself



          9
            Cirrincione claims that she identified various physical
     similarities between Stansbury and the perpetrator (sunken
     cheeks, hooded eyes, and other distinctive facial
     characteristics). There is no evidence that she communicated
     these observations to Wertman; because they were not a factor in
     Wertman’s decisions to arrest and prosecute Stansbury, we do not
     consider them. See Panetta, 460 F.3d at 395.

                                    16
 1   to establish arguable probable cause.     Stansbury, 2012 WL

 2   183849, at *4-6.   Although it adequately evaluated the

 3   pieces of evidence that it chose to consider, the district

 4   court erred insofar as it did not account for the evidence

 5   “on the totality of the circumstances.”     Jenkins v. City of

 6   New York, 478 F.3d 76, 90 (2d Cir. 2007) (citing Brinegar v.

 7   United States, 338 U.S. 160 (1949)).

 8        The totality of the circumstances test is no mere

 9   formality; it may frequently alter the outcome of a case.

10   “Those who do not take into account conditional probability

11   are prone to making mistakes in judging evidence. They may

12   think that if a particular fact does not itself prove the

13   ultimate proposition (e.g., whether the [officer had

14   probable cause]), the fact may be tossed aside and the next

15   fact may be evaluated as if the first did not exist.”      Al-

16   Adahi v. Obama, 613 F.3d 1102, 1105 (D.C. Cir. 2010).10     “The

17   significance of each [relevant] factor[] may be enhanced or


          10
            This is precisely what the district court did in this
     case. See, e.g., Stansbury, 2012 WL 183849, at *4 (“the
     videotape was not sufficient to warrant a person of reasonable
     caution in concluding that Stansbury was the perpetrator”)
     (internal citations omitted); id. at *6 (it would be “impossible
     for the Court to conclude that a jury would be unreasonable in
     concluding that Cirrincione’s and John’s identifications of
     Stansbury based on a single photo did not give Wertman probable
     cause”); id. n.3 (“the same logic also renders [other officers’]
     identification[s] insufficient to support probable cause”).

                                    17
 1   diminished by surrounding circumstances.”        Jenkins, 478 F.3d

 2   at 90.   Review for probable cause should encompass “plainly

 3   exculpatory evidence” alongside inculpatory evidence to

 4   ensure the court has a full sense of the evidence that led

 5   the officer to believe that there was probable cause to make

 6   an arrest.     Fabrikant v. French, 691 F.3d 193, 214 (2d Cir.

 7   2012) (quoting Panetta, 460 F.3d at 395). A story is never a

 8   single chapter, it is the experience of the entire tale; the

 9   same is true of probable cause.

10       The district court looked to our efforts in Jenkins v.

11   City of New York to support its determination.11         In Jenkins,

12   New York Police Department (“NYPD”) detectives investigated

13   a series of robberies and a homicide committed by the main

14   perpetrator and an accomplice.       478 F.3d   at 81.   By tracing

15   the first victim’s stolen red Honda Civic, reportedly used

16   in all subsequent crimes, the NYPD found Blyther, the

17   perpetrator.    When the police raided Blyther’s apartment,

18   they also found and arrested Jenkins; they contended that he

19   resembled descriptions of Blyther’s accomplice in that he

20   was a black male.     Id. at 82-84, 89.    Three lineups were


         11
            It comes as no surprise that the parties agree that
     Jenkins provides the template to resolve the matter; they,
     however, reach differing results.

                                     18
 1   conducted for one witness and two victims, all of whom

 2   identified Jenkins as Blyther’s accomplice in his crime

 3   spree.   Id. at 82.   In one lineup, however, the witness was

 4   not permitted to leave without fingering one of the men.

 5   Id. at 83.   Eight months later, Blyther named his actual

 6   accomplice – not Jenkins.     Id. at 82-83.   Some material

 7   facts - including Jenkins’s behavior prior to arrest - were

 8   subject to genuine dispute.

 9       This Court held that the officers developed probable

10   cause only after the second and third identifications

11   (which, though flawed, were procedurally superior to the

12   first lineup).   Id. at 93.    The totality of the evidence

13   available to the police at that time included: (1) Jenkins’

14   presence in Blyther’s apartment days after the crimes; (2)

15   Jenkins’ race and gender, which corresponded with the

16   accomplice’s race and gender; (3) a witness’s coerced and

17   therefore meaningless identification of Jenkins; and (4) two

18   victims’ identifications of Jenkins in subsequent “less than

19   perfect” lineups.     Id. at 90-93.   Although the first three

20   pieces of evidence were insufficient, all four combined

21   established probable cause.     Id. at 93.

22



                                     19
 1       The totality of evidence in this case exceeds the

 2   evidence the NYPD possessed in Jenkins following the third

 3   lineup.    Although the identifications from the photographic

 4   array in this case were less probative than even the two

 5   imperfect lineups in Jenkins, the evidence implicated

 6   Stansbury before any flawed identification.     Prior to the

 7   identifications, Wertman was aware that, 22 minutes before

 8   the shoplifting, a middle-aged black woman had used Nicole

 9   Stansbury’s credit card at a nearby Old Navy and that new

10   shopping bags were seen strewn on the floor near the exit of

11   the store.     When questioned about her whereabouts that

12   evening, Wertman observed that Stansbury was nervous and

13   evasive.     Stansbury, moreover, had a previous arrest for a

14   similar crime.

15       On top of the circumstantial evidence against

16   Stansbury, five individuals (including three trained

17   officers and two innocent victims with no alleged motive to

18   lie, one of whom had training in facial identification)

19   could not distinguish her from the perpetrator in admittedly

20   flawed photographic arrays.     The two victims submitted sworn

21   affidavits expressing no uncertainty that Stansbury was the

22   perpetrator.     The fact that the victims did not offer timely


                                     20
 1   detailed descriptions of the perpetrator means that probable

 2   cause could not be based on Stansbury’s matching these

 3   descriptions; it does not mean that the victims could not

 4   meaningfully identify Stansbury.     The district court

 5   misstated the factual record in asserting that “the most the

 6   Court can say is undisputed is that Cirrincione and John

 7   told Wertman that the shoplifter was a black female who was

 8   wearing a maroon windbreaker and blue jeans.”     Stansbury,

 9   2012 WL 183849, at *7.    Such a description might, as the

10   lower court suggested, be comparable to Jenkins; however,

11   there is significantly more evidence here.

12       John’s claim that the perpetrator was 5'5" tall is

13   evidence indicating that Stansbury could be innocent, but

14   this evidence was outweighed by the mountain of evidence to

15   the contrary.     Boyd v. City of New York, 336 F.3d 72, 74, 77

16   (2d Cir. 2003).    In Boyd, the police had probable cause to

17   make an arrest based on Boyd’s purchase of a stolen car,

18   even though the car did not “look stolen” and Boyd may not

19   have known it was stolen.     Id. (asserting, however, that

20   there was not probable cause to support a prosecution).

21   Boyd reaffirms that some exculpatory evidence does not make

22   an arrest illegal when the totality of evidence still


                                     21
 1   establishes probable cause to believe that the suspect

 2   committed the crime.   Such is the case here, where the only

 3   exculpatory evidence is a guess from a store employee as to

 4   the perpetrator’s height that was off by four inches.      This

 5   deficiency, if it was one, was overcome by other evidence,

 6   including a positive, sworn identification by the same

 7   employee.

 8        Because there was an identifiable crime and a

 9   substantial volume of contemporaneously-recorded,

10   uncontroverted circumstantial evidence that supported the

11   conclusion that Stansbury was the perpetrator, Wertman had

12   probable cause to arrest Stansbury.     No reasonable juror

13   could have held that Wertman did not have probable cause to

14   believe that Stansbury had committed the larceny at the Stop

15   & Shop.12

16

          12
            While Wertman did have probable cause to arrest
     Stansbury, this does not mean that he conducted a perfect
     investigation. “Although a better procedure may have been for
     the officer[] to investigate [Stansbury’s] version of events more
     completely, the arresting officer does not have to prove [a
     suspect’s] version wrong before arresting [her].” Curley v.
     Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001). Perhaps
     Wertman should have been more thorough, but he did not
     “misrepresent[] the evidence to the prosecutors” and no evidence
     suggests that he broached protocol in any way other than the use
     of an inadequate photographic array. Cf. Manganiello v. City of
     New York, 612 F.3d 149, 165 (2d Cir. 2010). This alone does not
     mitigate the probable cause that his investigation provided.

                                    22
 1   III. Malicious Prosecution

 2         Because lack of probable cause is an element of a

 3   malicious prosecution claim, “the existence of probable

 4   cause is a complete defense to a claim of malicious

 5   prosecution.”    Manganiello v. City of New York, 612 F.3d

 6   149, 161-62 (2d Cir. 2010) (alteration omitted) (quoting

 7   Savino, 331 F.3d at 72).     The presumption of probable cause

 8   established by a grand jury indictment “may be rebutted ...

 9   by evidence that the indictment was procured by fraud,

10   perjury, the suppression of evidence or other police conduct

11   undertaken in bad faith.”     Id. at 162 (alterations,

12   citations, and quotation marks omitted).       However, once

13   probable cause has been established, it is impossible for

14   plaintiff to prevail on a malicious prosecution claim as a

15   matter of law.    See Savino, 331 F.3d at 72.

16         The probable cause standard in the malicious

17   prosecution context is slightly higher than the standard for

18   false arrest cases.    Boyd, 336 F.3d at 76.    “Probable cause,

19   in the context of malicious prosecution, has also been

20   described as such facts and circumstances as would lead a

21   reasonably prudent person to believe the plaintiff guilty.”

22   Id.   For the reasons discussed above, the uncontroverted


                                     23
 1   evidence adduced in Wertman’s investigation suffices to meet

 2   that standard.

 3       As a matter of law, the uncontroverted facts in this

 4   case created probable cause to initiate Stansbury’s

 5   prosecution for petit larceny; Wertman was therefore

 6   entitled to judgment as a matter of law.

 7

 8                            Conclusion

 9       “Where the record taken as a whole could not lead a

10   rational trier of fact to find for the nonmoving party,

11   there is no ‘genuine issue for trial.’”    Scott, 550 U.S. at

12   380 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio

13   Corp., 475 U.S. 574, 586-87 (1986)).   Ignoring frivolous

14   allegations, the documented record establishes

15   uncontroverted facts that, taken together, provided probable

16   cause for the arrest and prosecution of Linda Stansbury.

17   Officer Wertman is therefore entitled to judgment as a

18   matter of law.

19       For the foregoing reasons, the opinion and order of the

20   district court is REVERSED, and the case is REMANDED with

21   instruction for the district court to grant Wertman’s motion

22   for summary judgment.


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