     08-1123-cv
     Green v. Webster


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January
     1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule
     32.1.1. W hen citing a summary order in a document filed with this court, a party must cite either the Federal
     Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must
     serve a copy of it on any party not represented by counsel.

 1            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 7th day of January, two thousand ten.
 4
 5   PRESENT:
 6
 7                      GUIDO CALABRESI,
 8                      DEBRA ANN LIVINGSTON,
 9                                     Circuit Judges,
10                      EDWARD R. KORMAN,
11                                     District Judge.*
12
13
14
15   PAMELA GREEN,
16
17                      Plaintiff-Appellant,
18
19            -v.-                                                       No. 08-1123-cv
20
21   EDWIN W. WEBSTER, JR., in his individual capacity,
22
23                      Defendant-Appellee.
24




              *
            The Hon. Edward R. Korman, United States District Court for the Eastern District of
     New York, sitting by designation.

                                                           1
 1                                          DAVID SETH PUTTER, Montpelier, VT, for Plaintiff-Appellant.
 2
 3                                          JOSEPH A. FARNHAM (Kevin J. Coyle, of counsel), McNeil
 4                                          Leddy & Sheahan, P.C., Burlington, VT, for Defendant-
 5                                          Appellee.
 6
 7
 8          Appeal from a judgment of the United States District Court for the District of Vermont

 9   (Murtha, J.).

10          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED

11   that the judgment of the district court be AFFIRMED.

12          Plaintiff-Appellant Pamela Green (“Green”) appeals from a judgment of the United States

13   District Court for the District of Vermont (Murtha, J.) entered February 7, 2008 granting summary

14   judgment to Defendant-Appellee Officer Edwin W. Webster, Jr. (“Webster”) of the Stowe, Vermont

15   Police Department on Green’s § 1983 false arrest claim. Green’s lawsuit against Webster and

16   various other defendants arose from Green’s arrest while she was a guest at Topnotch Resort and Spa

17   in Stowe, Vermont, in February, 2005. After the other defendants settled the case, the district court

18   ruled that Green had failed to demonstrate that a material question of fact existed on the issue

19   whether Webster had probable cause to arrest Green for possession of cocaine at the time of her

20   arrest, even though subsequent events would demonstrate that the substance Green possessed was

21   not, in fact, cocaine. See Green v. Topnotch at Stowe, No. 1:06-CV-96, 2008 WL 345886, at *3-4

22   (D. Vt. Feb. 7, 2008). The district court also concluded that Webster was entitled to qualified

23   immunity. Id. We assume the parties’ familiarity with the factual and procedural background of the

24   case as well as the specification of the issues for review.




                                                       2
 1          We review a district court’s grant of summary judgment de novo, construing all facts in favor

 2   of the non-moving party. See, e.g., Caiozzo v. Koreman, 581 F.3d 63, 68 (2d Cir. 2009). Summary

 3   judgment is appropriate upon a showing “that there is no genuine issue as to any material fact and

 4   that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

 5          The central issue on appeal is whether Webster had probable cause to arrest Green. A

 6   plaintiff may not recover for false arrest when the arresting officer had probable cause. Singer v.

 7   Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). Probable cause to arrest “exists when one

 8   has knowledge of, or reasonably trustworthy information as to, facts and circumstances that are

 9   sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being

10   committed by the person to be arrested.” Williams v. Town of Greenburgh, 535 F.3d 71, 79 (2d Cir.

11   2008) (quoting Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007)) (internal quotation marks

12   and alterations omitted). Our inquiry focuses on the “facts known to the arresting officer at the time

13   of the arrest.” Zellner, 494 F.3d at 369 (quoting Devenpeck v. Alford, 543 U.S. 146, 152 (2004))

14   (internal quotation mark omitted). “[A] mistake about relevant facts . . . does not undermine the

15   existence of probable cause.” Williams, 535 F.3d at 79.

16          In this case Webster had probable cause to arrest Green. It is undisputed that at the time of

17   Green’s arrest Webster and his two colleagues agreed that the white powder found in Green’s hotel

18   room field-tested positive for cocaine. A reasonably trustworthy field test that returns a “positive”

19   result for the presence of cocaine is a sufficient basis for probable cause. See, e.g., United States v.

20   Uricoechea-Casallas, 946 F.2d 162, 165-66 (1st Cir. 1991).          Given this, to survive Webster’s

21   summary judgment motion Green had to demonstrate that a material question of fact existed as to

22   whether the field test’s result was “reasonably trustworthy information,” Williams, 535 F.3d at 79,


                                                        3
 1   i.e., whether Webster had a basis for believing, at the time of Green’s arrest, that the “positive” field

 2   test result was inaccurate or unreliable. Like the district court, we conclude that Green has not made

 3   such a showing.

 4           Webster had no basis for believing that the field test was performed improperly. It is

 5   undisputed that Webster knew that Officer Christiensen, who performed the test, had field

 6   experience with cocaine arrests, Pl’s Statement of Material Facts ¶ 20, and both officers testified that

 7   they had experience doing field tests for drugs, id. ¶¶ 12, 20. Webster asserted that Christiensen

 8   performed the field test on the white powder found in Green’s room according to the test’s

 9   instructions, Def’s Statement of Facts ¶ 21; this assertion is confirmed by Christiensen’s testimony

10   that he “read the instructions as [he] was doing [the test] and did as the instructions indicated.”

11   Christiensen Dep. 13. Christiensen’s testimony also described the proper sequence of steps required

12   to perform the test correctly and the correct color changes that would result from a properly

13   performed test. Id. 13-14.

14           Nor was there a material question of fact whether Webster had a basis for believing that the

15   test did not in fact produce a positive result. Again, all three officers involved at the scene agreed

16   at the time that the result was positive, and even the most ambiguous of the officers’ reports, that of

17   Officer Dougherty, records a color sequence that is consistent with a positive final result.

18   Christiensen’s report confirms this conclusion. Green points to the lack of a description of the full

19   color-change sequence in any of the officers’ reports, but none of the reports purports to describe the

20   entire sequence of color changes that took place during the test, and all indicate that the test was

21   positive at its conclusion. Moreover, as noted above, Christiensen testified that the correct color-

22   change sequence took place. Dougherty further testified that he only recorded the “final result” of


                                                        4
 1   what he saw and admitted that “other color changes” could have occurred prior to the final sequence

 2   that he did not record. Dougherty Dep. 39. Finally, although Green points to “exculpatory evidence”

 3   that should have suggested she was not guilty of a crime, Pl.’s Br. at 42, 56, none of this evidence

 4   at the time of the arrest would have tended from Webster’s perspective to negate the reasonable

 5   probability, created by the positive field test, that Green was in possession of cocaine. Cf. Kuehl v.

 6   Burtis, 173 F.3d 646, 650 (8th Cir. 1999); Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 128 (2d

 7   Cir. 1997) (“Once a police officer has a reasonable basis for believing there is probable cause, he is

 8   not required to explore and eliminate every theoretically plausible claim of innocence before making

 9   an arrest.”).

10           We have considered Green’s remaining arguments and find them to be without merit. For

11   the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

12


13                                                         FOR THE COURT:
14                                                         Catherine O’Hagan Wolfe, Clerk
15
16                                                         By:
17




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