           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0075P (6th Cir.)
                    File Name: 00a0075p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                               ;
                                
 KATHERINE GARDENHIRE and
                                
 WALTER GARDENHIRE,
                                
         Plaintiffs-Appellees,
                                
                                              No. 98-6434

                                
             v.                  >
                                
                                
                                
 DONALD SCHUBERT, in his

                                
 individual and official

          Defendant-Appellant. 
 capacity as Chief of Police,
                                
                               1

       Appeal from the United States District Court
    for the Middle District of Tennessee at Cookeville.
    No. 97-00061—Thomas A. Higgins, District Judge.
                    Argued: August 5, 1999
               Decided and Filed: March 2, 2000
    Before: BATCHELDER and COLE, Circuit Judges;
              MARBLEY, District Judge.*




    *
     The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.

                                  1
2    Gardenhire, et al. v. Schubert             No. 98-6434

                    _________________
                        COUNSEL
ARGUED: Daniel H. Rader III, MOORE, RADER, CLIFT
& FITZPATRICK, Cookeville, Tennessee, for Appellant.
Lisa B. Harris, HARRIS LAW FIRM, Cookeville, Tennessee,
for Appellees. ON BRIEF: Daniel H. Rader III, Lane
Moore, MOORE, RADER, CLIFT & FITZPATRICK,
Cookeville, Tennessee, for Appellant. Lisa B. Harris, Samuel
J. Harris, HARRIS LAW FIRM, Cookeville, Tennessee, for
Appellees.
  MARBLEY, D. J., delivered the opinion of the court, in
which COLE, J., joined. BATCHELDER, J. (pp. 26-30),
delivered a separate opinion concurring in part and dissenting
in part.
                    _________________
                        OPINION
                    _________________
   ALGENON L. MARBLEY, District Judge. Plaintiffs-
Appellees Katherine and Walter Gardenhire brought this suit
against the Defendant-Appellant, Algood Police Chief Donald
Schubert, alleging that Chief Schubert violated their civil
rights, in violation of 42 U.S.C. § 1983, by arresting them
without probable cause and refusing to arrest and to prosecute
their neighbor for burglarizing their retail business. Chief
Schubert filed a motion for summary judgment based on
qualified immunity, which the district court denied. This
interlocutory appeal followed, and raises the same questions
presented in the court below. For the following reasons, we
AFFIRM in part and REVERSE in part the judgment of the
district court.
                              I.
  In December of 1996, Katherine Gardenhire owned a retail
clothing store called Uniquely Yours. Located immediately
30   Gardenhire, et al. v. Schubert               No. 98-6434      No. 98-6434              Gardenhire, et al. v. Schubert     3

cause to arrest. Even absent probable cause, qualified             adjacent to Ms. Gardenhire’s establishment was a thrift shop
immunity is available if a reasonable police officer could have    owned by Mary Della Sala. The two businesses shared a
believed that his or her conduct was lawful, in light of clearly   common interior doorway. The bathroom and climate-control
established law and the information the searching officers         panel for both stores were located in Ms. Della Sala’s shop.
possessed. Anderson v. Creighton, 483 U.S. 635, 641 (1987).        Some time shortly before December 1996, Ms. Gardenhire
In 1996, the clearly established law of probable cause in this     and Ms. Della Sala agreed to trade store fronts. On December
circuit was Criss v. City of Kent. The majority spends some        31, the two women were in the process of moving their
three pages distinguishing this case, but Chief Schubert was       merchandise; both women had access to the other’s
not required to anticipate the majority’s opinion here. Chief      establishments and each had property in both locations.
Schubert was entitled to rely on the plain holding of Criss,
and a reasonable and prudent man, rather than a legal                 On December 31, 1996, Ms. Della Sala telephoned the
technician, cf. Brinegar v. United States, 338 U.S. 160, 175       Algood Police Department to report a theft of property from
(1949), could have read Criss to authorize the arrest, without     her thrift shop. She claimed that a banjo, fiddle, pink
further inquiry, of individuals who were in possession of          flamingo dish, television and VCR were among the items
particular goods that had been explicitly identified as stolen.    stolen. Algood Police Officer Bill Davis responded to Ms.
Accordingly, I must dissent from this portion of the majority’s    Della Sala’s call by going to her store; he subsequently
opinion.                                                           contacted Chief Schubert, who was also acting detective for
                                                                   the city. When Chief Schubert arrived on the scene, Officer
                                                                   Davis told him that Ms. Della Sala had reported certain items
                                                                   missing from her store, and that some of these items were
                                                                   visible, through the windows, inside Uniquely Yours.
                                                                     Chief Schubert, dressed in civilian clothes, and another
                                                                   officer, in uniform, then went to the Gardenhires’ home and
                                                                   asked them to come to the police station as part of the
                                                                   investigation. There is no evidence in the record as to how
                                                                   the officers phrased this directive. Although Katherine
                                                                   Gardenhire is the sole owner of Uniquely Yours, the police
                                                                   also solicited the cooperation of her husband, Walter
                                                                   Gardenhire. The Gardenhires are an interracial couple:
                                                                   Katherine is Caucasian, and Walter is African-American.
                                                                     The Gardenhires drove their own car to the station, where
                                                                   they met Chief Schubert and Officer Davis. Chief Schubert
                                                                   explained why the couple had been summoned there and read
                                                                   them their Miranda rights. The Gardenhires agreed to
                                                                   cooperate in the investigation and answered all police
                                                                   questions. During the interview, the couple admitted that they
                                                                   had, at their home, the flamingo dish Ms. Della Sala reported
                                                                   stolen. They also told the police that they had a key to the
4       Gardenhire, et al. v. Schubert                     No. 98-6434        No. 98-6434               Gardenhire, et al. v. Schubert     29

Della Sala store. Ms. Gardenhire alleges that she asked to                    fact in the Gardenhires’ possession, according to the majority,
call her attorney at one point during the questioning, but the                “[f]urther investigation was necessary at that point.” The
police denied the request. The police asked for permission to                 majority goes on to speak of a “duty to investigate an alleged
search Uniquely Yours, and Mr. Gardenhire signed a consent                    crime before making an arrest,” suggesting that Chief
to search form. Ms. Gardenhire claims that throughout this                    Schubert was obligated to elicit and consider an exculpatory
encounter, Chief Schubert made “condescending glares” at                      explanation from the Gardenhires. In so doing, the
her and1her husband. After spending some hours at the police                  majority—although denying that it is doing so—subtly
station , the Gardenhires left, unaccompanied, in their own                   promulgates the rule that arresting officers have a duty to
car, and retrieved the flamingo dish from their home. They                    conduct an investigation into the basis of an eyewitness report
then met the police at their store.                                           before making an arrest that is founded on the report. See
                                                                              Fuller v. M.G. Jewelry, 950 F.2d 1437, 1453 (9th Cir. 1991)
  At the store, Mr. Gardenhire opened the door and allowed                    (Hall, J., concurring).
Officer Davis and Chief Schubert to enter and recover Ms.
Della Sala’s items. The police found all of the goods                            This holding flies in the face of Criss’s explicit admonition
Ms. Della Sala claimed were stolen. At that point, both                       that “no such duty to investigate can nor should be created.”
officers noted that the placement of these items was oddly                    Criss, 867 F.2d at 263. And Criss is bottomed on Supreme
conspicuous. Officer Davis thought it would be “foolish” for                  Court caselaw. In Baker v. McCollan, the Supreme Court
someone to steal merchandise and then display it in the next-                 held that, “Given the requirements that arrest be made only on
door window in plain view.                                                    probable cause and that one detained be accorded a speedy
                                                                              trial, we do not think a sheriff executing an arrest warrant is
   While the police were recovering Ms. Della Sala’s items,                   required by the Constitution to investigate every claim of
Ms. Gardenhire noticed that several pieces of merchandise                     innocence . . . .” Baker, 443 U.S. 137, 145-46 (1979).
from Uniquely Yours were missing. Mr. Gardenhire                              Although the plaintiff in Baker did not bring a claim under the
discovered that the cash register was gone. The Gardenhires                   Fourth Amendment, this court, in Criss, and others have
suspected that Ms. Della Sala had stolen the items and told                   applied the Supreme Court’s decision in the context of
Chief Schubert that they had been robbed. The officer refused                 probable cause. Criss, 867 F.2d at 263; Pickens v. Hollowell,
to deal with their complaint. Ms. Gardenhire became agitated                  59 F.3d 1203, 1207 (11th Cir. 1995). The result is clear: a
and demanded to make a police report. According to Ms.                        duty to investigate is no part of the probable cause
Gardenhire’s affidavit, Chief Schubert told her to “shut up,”                 determination. Criss, 867 F.2d at 263; Kelley v. Myler, 149
and ordered her to leave the store and wait in her car. She did               F.3d 641, 646-47 (11th Cir. 1998) (“We refuse to add this
so.                                                                           extra requirement to the probable cause determination . . . .
                                                                              The inquiry is whether an officer has reasonable grounds on
  Soon afterwards, Chief Schubert asked the Gardenhires to                    which to act, not whether it was reasonable to conduct further
follow Officer Davis to the Putnam County Justice Center to                   investigation.”).
present the facts to Magistrate Martin Wheeler. He advised
the couple that they would be booked on charges of theft,                       Even if the majority were correct that the information in
burglary and criminal trespass, and would have to post bond                   Chief Schubert’s possession “was not enough to justify an
                                                                              arrest,” the Chief would still be entitled to summary judgment
                                                                              on the basis of qualified immunity. The doctrine of qualified
    1
      The parties have not stated, nor does the record reflect, exactly how   immunity does not require that there actually be probable
long the Gardenhires were detained at the police station.
28   Gardenhire, et al. v. Schubert                 No. 98-6434    No. 98-6434               Gardenhire, et al. v. Schubert      5

  the determination whether probable cause to arrest exists.       to be released. Ms. Gardenhire’s affidavit describes her
  A policeman, however, is under no obligation to give any         impressions at that point: “We were not given a choice to go
  credence to a suspect’s story nor should a plausible             and I understood that if I did not drive myself that I would be
  explanation in any sense require the officer to forego           physically forced to go. We were warned not to deviate from
  arrest pending further investigation if the facts as initially   the specified route and that if we did not show up at the
  discovered provide probable cause. . . .                         Putnam County Justice Center that a capias would be issued
    To hold otherwise would be to allow every suspect,             for our arrest.” The parties stipulate that the police did not
  guilty or innocent, to avoid arrest simply by claiming “it       place the Gardenhires in a police car, nor did the officers say
  wasn’t me.” And if the arresting officer failed to               “you are under arrest,” handcuff or physically touch the
  investigate such claims prior to arrest, the arrestee could      couple. The Gardenhires complied with Schubert’s direction
  bring a section 1983 suit. . . . [W]e find that no such          and followed Officer Davis to the Justice Center in their own
  duty to investigate can nor should be created.                   car. As Officer Davis led the couple to the Justice Center, he
                                                                   did not use his police lights or siren.
Criss, 867 F.2d at 263 (citations omitted).
                                                                      At the Justice Center, Magistrate Wheeler spoke to the
  The majority attempts, unconvincingly, to distinguish Criss.     Gardenhires. After this interview, the magistrate determined
The majority suggests that the items in Criss were of the type     that there was no probable cause to arrest the couple, and
that one must presume are stolen, while those in this case         concluded that this was a civil matter. At some point during
could be deemed stolen only from Ms. Della Sala’s                  the Justice Center episode, Chief Schubert told the couple
accusation. But this is to say that an inference that an officer   they should “just collect up the rest of [their] things and get
might logically draw from the nature of a stolen object is         out of town.”       The Gardenhires were not booked,
entitled to greater weight than the testimony of the victim of     fingerprinted or photographed. They were not incarcerated
the crime—a premise that itself is contrary to established         and were free to leave after the interview with Magistrate
precedent. Where, as here, a citizen informant is the victim       Wheeler.
of the crime in question, her report is entitled to great weight
in the probable cause determination. See, e.g., Adams v.             On June 16, 1997, The Gardenhires brought this suit in the
Williams, 407 U.S. 143, 147 (1972). Indeed, as this court has      United States District Court for the Middle District of
recently pointed out, a crime victim’s accusation standing         Tennessee against Chief Schubert and the Algood Police
alone can establish probable cause. Ahlers v. Schebil, 188         Department. Chief Schubert is the only remaining defendant,
F.3d 365, 370 (6th Cir. 1999); see also United States v.           and is sued in both his individual and official capacity. The
Maryland, 479 F.2d 566, 569 (5th Cir. 1973) (holding that          Gardenhires have brought two claims against Chief Schubert
“information given to law enforcement authorities by the           pursuant to 42 U.S.C. § 1983. First, the Gardenhires allege
victim of the crime immediately after its occurrence was           that Chief Schubert violated the Fourth Amendment’s
clearly sufficient to supply probable cause for appellant’s        prohibition against unreasonable searches and seizures by
arrest”).                                                          arresting them without probable cause. Second, the
                                                                   Gardenhires claim Chief Schubert violated the Fourteenth
  From these shaky ramparts, the majority launches its             Amendment’s guarantee of equal protection of the laws by
principal assault on the holding of Criss. After Chief             not pursuing an investigation against Ms. Della Sala, and
Schubert had received the crime victim’s complaint, and after      arresting the Gardenhires instead. The second claim is
he had corroborated that the allegedly stolen goods were in        premised on the theory that the officers’ failure to investigate
6      Gardenhire, et al. v. Schubert                No. 98-6434    No. 98-6434              Gardenhire, et al. v. Schubert     27

was motivated by the fact that the Gardenhires are an                 Here, the apparent victim of an alleged theft accused the
interracial couple.                                                 Gardenhires of the crime, and the objects allegedly stolen
                                                                    were found in the Gardenhires’ actual or constructive
   On November 14, 1997 Chief Schubert filed a motion for           possession. These objective factors support a reasonable
summary judgment arguing that he is protected from this suit        belief that the Gardenhires had committed the offense of theft;
by the doctrine of qualified immunity. The district court           the fact that before he instructed the Gardenhires to go to the
denied this motion, holding that Chief Schubert was not             Justice Center, Chief Schubert declined to conduct further
entitled to qualified immunity because a reasonable jury could      investigation on the basis that the allegedly stolen objects
find that his actions on December 31, 1996 amounted to an           were visible through a window, or on the basis that the
arrest of the Gardenhires, and that the arrest was made             Gardenhires protested their innocence, does not vitiate
without probable cause. The district court also held that           probable cause. A panel of this court so held in Criss v. City
selective enforcement of state laws is actionable under the         of Kent, 867 F.2d 259 (6th Cir. 1988), a case whose
Equal Protection Clause of the Fourteenth Amendment.                precedential grasp the majority engages in considerable
Chief Schubert now brings this interlocutory appeal of the          acrobatics to evade.
issues raised in his original motion for summary judgment.
                                                                       In Criss, police officers observed through an open window
                                 II.                                street signs belonging to the City of Kent. The officers
                                                                    obtained a search warrant and questioned Criss, who resided
   The denial of a summary judgment motion on the issue of          in the apartment. Criss maintained that the signs had been
qualified immunity is immediately appealable. See Mitchell          taken by his roommate. The officers nevertheless arrested
v. Forsyth, 472 U.S. 511 (1985). The issue of qualified             him for receipt of stolen property. A prosecutor later
immunity is a question of law to be reviewed de novo by this        dismissed the charge, and Criss brought a § 1983 action for
Court. See Long v. Norris, 929 F.2d 1111, 1114 (6th Cir.            violation of his Fourth Amendment rights.
1991). Summary judgment is only appropriate where the
“pleadings, depositions, answers to interrogatories, and               Despite Criss’s plausible on-the-spot explanation of his
admissions on file together with the affidavits, if any, show       association with the signs, and despite the fact that someone
that there is no genuine issue as to any material fact and that     in receipt of stolen signs would be unlikely to display them to
the moving party is entitled to a judgment as a matter of law.”     public view, this court held that the arresting officers had
Fed. R. Civ. P. 56(c). All facts, as well as all inferences         probable cause for the arrest. The court noted that the signs
drawn therefrom, must be viewed in the light most favorable         were either the property of the City or were remarkable
to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd.       replicas. Because Criss had either constructive or actual
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).                    possession of them, the court concluded, the officers had
                                                                    reasonable ground for their belief that Criss had received
  Schubert claims he is entitled to summary judgment based          stolen property. The court went on to make clear that a duty
on the affirmative defense of qualified immunity against the        to investigate is not part of the probable cause inquiry. The
Gardenhires’ § 1983 claims. Section 1983 provides:                  court’s holding in this regard is worth setting out at length:
    Every person who under color of any statute, ordinance,           A suspect’s satisfactory explanation of suspicious
    regulation, custom, or usage, of any State . . . subjects, or     behavior is certainly a factor which law enforcement
    causes to be subjected, any citizen of the United States or       officers are entitled to take into consideration in making
    other person within the jurisdiction thereof to the
26       Gardenhire, et al. v. Schubert                      No. 98-6434         No. 98-6434              Gardenhire, et al. v. Schubert       7

  _____________________________________________                                    deprivation of any rights, privileges, or immunities
                                                                                   secured by the Constitution and laws, shall be liable to
  CONCURRING IN PART, DISSENTING IN PART                                           the party injured in an action at law, suit in equity, or
  _____________________________________________                                    other proper proceeding for redress. . . .
  ALICE M. BATCHELDER, Circuit Judge, concurring in                              By its terms, § 1983 creates no substantive rights; it merely
part and dissenting in part. The majority opinion creates a                      provides remedies for deprivations of rights established
new factor in the determination of probable cause: a duty to                     elsewhere. See Tuttle v. Oklahoma City, 471 U.S. 808 (1985).
investigate. Because this innovation runs counter to the                         In this case, the Gardenhires allege that Schubert violated
settled law of this circuit, and because Chief Schubert can                      their Fourth Amendment right to be free from unreasonable
hardly be expected to have anticipated it, I must dissent from                   searches and seizures as well as their Fourteenth Amendment
Part II of the majority opinion.                                                 right to equal protection of the laws.
  When viewed in the light most favorable to the plaintiffs,                        The affirmative defense of qualified, or good faith,
the evidence establishes that from their earliest encounter                      immunity shields “government officials performing
with the Gardenhires, the police were in possession of four                      discretionary functions . . . from liability for civil damages
facts. First, Mary Della Sala complained that her belongings                     insofar as their conduct does not violate ‘clearly established’
had been stolen, and that they were visible through the                          statutory or constitutional rights of which a reasonable person
windows of the Gardenhires’ shop. Second, the allegedly                          would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
stolen items were in fact in the Gardenhires’ shop. Third, the                   818 (1982). An official may, however, be held personally
placement of the items in public view was somewhat                               liable for civil damages for unlawful official action if that
suspicious. Finally, the Gardenhires professed no knowledge                      action was not objectively reasonable in light of the legal
of the theft.                                                                    rules that were “clearly established” at the time it was taken.
                                                                                 See Anderson v. Creighton, 483 U.S. 635, 639 (1987). This
   These facts plainly support a finding of probable cause,                      “objective legal reasonableness” standard analyzes claims of
regardless of when the Gardenhires were “arrested.”1                             immunity on a fact-specific, case-by-case basis to determine
Probable cause means “facts and circumstances within the                         whether a reasonable official in the defendant’s position could
officer’s knowledge that are sufficient to warrant a prudent                     have believed that his conduct was lawful, judged from the
person, or one of reasonable caution, in believing, in the                       perspective of the reasonable official on the scene. See
circumstances shown, that the suspect has committed . . . an                     Graham v. Connor, 490 U.S. 386, 396 (1989).
offense. Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). It
is not an exacting standard; probable cause requires only the                       When determining whether a right is "clearly established,"
probability of criminal activity, not some type of “prima                        this Court must look "first to decisions of the Supreme Court,
facie” showing. Illinois v. Gates, 462 U.S. 213, 235 (1983).                     then to decisions of this Court and other courts within our
                                                                                 circuit, and finally to decisions of other circuits." Daugherty
                                                                                 v. Campbell, 935 F.2d 780, 784 (6th Cir. 1991). "The
     1                                                                           contours of the right must be sufficiently clear that a
       Although I question whether the Gardenhires were ever arrested, I         reasonable official would understand that what he is doing
will not take up the cudgels on that subject here. The important point is
that the police had probable cause to arrest them after the initial interview,   violates that right." Anderson v. Creighton, 483 U.S. 635,
and the totality of the circumstances did not subsequently tip the balance       640 (1987). However, “[t]his not to say that an official action
in favor of the Gardenhires.
8      Gardenhire, et al. v. Schubert              No. 98-6434     No. 98-6434               Gardenhire, et al. v. Schubert      25

is protected by qualified immunity unless the very action in       ignore, see Criss, 867 F.2d at 262, -- rather than in the
question has previously been held unlawful; but it is to say       “citizen making a complaint” category. While Ms. Della
that in the light of pre-existing law the unlawfulness must be     Sala’s store may have been similarly situated to the
apparent." Id. (citations omitted).                                Gardenhires geographically, by virtue of the timing of their
                                                                   respective complaints, she was not otherwise similarly
  Where a defendant moves for summary judgment based on            situated to the Gardenhires on December 31, 1996. There
qualified immunity, the plaintiff must first identify a clearly    was no police report implicating Ms. Della Sala of a crime.
established right alleged to have been violated and second,
establish that a reasonable officer in the defendant’s position       Second, the Gardenhires have not presented any evidence
should have known that his conduct violated that right. See        to support their claim that Chief Schubert purposefully
Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995);      discriminated against them because they are an interracial
Johnson v. Estate of Laccheo, 935 F.2d 109, 111 (6th Cir.          couple. While Chief Schubert’s manners may not have
1991). The ultimate burden of proof is on the plaintiff to         conformed to Emily Post standards, there is no evidence that
show that the defendant is not entitled to qualified immunity.     he was motivated by racial animus. The Gardenhires’ basic
See Wegener v. Covington, 933 F.2d 390, 392 (6th Cir. 1991).       argument is that the police had no logical reason to prosecute
The defendant bears the initial burden of coming forward with      them rather than Ms. Della Sala, so the arrest must have been
facts to suggest that he acted within the scope of his             motivated by their interracial marriage. While such reasoning
discretionary authority during the incident in question.           would be sufficient in establishing a prima facie Title VII
Thereafter, the burden shifts to the plaintiff to establish that   case, the standard for a selective enforcement claim is much
the defendant’s conduct violated a right so clearly established    more demanding. The Gardenhires have failed to establish
that any official in his position would have clearly understood    that Chief Schubert acted with discriminatory purpose, nor
that he was under an affirmative duty to refrain from such         have they presented the “clear evidence” of misbehavior
conduct. See Rich v. City of Mayfield Heights, 955 F.2d            sufficient to sustain their selective enforcement claim to
1092, 1095 (6th Cir. 1992). This Court has held, however,          overcome the presumption that the state actors have properly
that:                                                              discharged their official duties. In light of the deference given
                                                                   to the discretionary decisions of law enforcement officers, and
    summary judgment would not be appropriate if there is          the dearth of evidence to the contrary, the district court’s
    a factual dispute (i.e., a genuine issue of material fact)     decision on this issue is therefore REVERSED, and the
    involving an issue on which the question of immunity           Gardenhires’ Equal Protection claim is DISMISSED.
    turns, such that it cannot be determined before trial
    whether the defendant did acts that violate clearly
    established rights. Summary judgment also should be
    denied if the undisputed facts show that the defendant's
    conduct did indeed violate clearly established rights. In
    either event, the case will then proceed to trial. . . .
Poe v. Haydon, 853 F.2d 418, 425-26 (6th Cir. 1988)
(citations omitted).
  In this case, to determine whether Chief Schubert’s actions
violated any clearly established constitutional rights, this
24    Gardenhire, et al. v. Schubert                No. 98-6434      No. 98-6434               Gardenhire, et al. v. Schubert         9

may find he was arrested and that his arrest, at least, was          Court must decide, first, what the state of the law was on
based on racial animosity. And, just as a police officer may         December 31, 1996, and, second, whether there is a factual
not unevenly apply the laws against a citizen because of his         dispute on which the question of immunity turns. See Rich,
race, neither may he apply the laws unevenly because a citizen       955 F.2d at 1095.
is married to someone of a particular race. See Loving v.
Virginia, 388 U.S. 1, 8 (1967) (holding that state may not                                  A. Jurisdiction
treat interracial marriages differently from other marriages).
                                                                        The Court's jurisdiction over interlocutory appeals on a
  There is no question that in 1996, it was clearly established      claim of qualified immunity is limited to considering pure
that police officers could not selectively enforce state laws        issues of law. Berryman v. Rieger, 150 F.3d 561, 563 (6th
based on racial distinctions.                                        Cir. 1998) (finding that "[a] defendant who is denied qualified
                                                                     immunity may file an interlocutory appeal with this Court
                 2. Issues of Law and Fact                           only if that appeal involves the abstract or pure legal issue of
                                                                     whether the facts alleged by the plaintiff constitute a violation
   The Gardenhires argue that the facts, as they have alleged,       of clearly established law.") (citations omitted). Mixed
support their claim of selective enforcement. Applying the           questions of fact and law are treated as questions of law.
Anderson test, the couple contends that a reasonable jury            Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999) (en
could find, first, that Chief Schubert singled out the               banc).
Gardenhires for prosecution by arresting them and not Mary
Della Sala, who was not involved in an interracial                      Here, the Court finds that it has jurisdiction to hear the
relationship, but was otherwise similarly situated to the            Defendant's interlocutory appeal on the issue of qualified
Gardenhires. Second, the Gardenhires argue that a jury could         immunity, as the question of whether there was probable
find that Chief Schubert arrested them with a discriminatory         cause for an arrest is a mixed question of law and fact.
purpose, based on his “condescending glares” and the “get out        Painter v. Robertson, 185 F.3d 557, 569 (6th Cir. 1999)
of town” comment. Third, the jury could find that Chief              (citing Ornelas v. United States, 517 U.S. 690, 696-98
Schubert’s actions had a discriminatory effect on an                 (1996)). In finding that the determination of probable cause
identifiable group: the Gardenhires, an interracial couple,          is a mixed question of law and fact, the Supreme Court in
were arrested, while Ms. Della Sala, who is not involved in an       Ornelas reasoned that:
interracial relationship, was not. The Gardenhires’ argument
stretches the facts beyond reason to fit their chosen legal            The principal components of a determination of
theory.                                                                reasonable suspicion or probable cause will be the events
                                                                       which first occurred leading up to the stop or search, and
   First, the Gardenhires and Ms. Della Sala were not similarly        then the decision whether these historical facts, viewed
situated on December 31, 1996. For most of that day, there             from the standpoint of an objectively reasonable police
was a police report implicating the Gardenhires in a crime;            officer, amount to reasonable suspicion or to probable
while they may not have had probable cause to arrest them,             cause. The first part of the analysis involves only a
the police were justified in treating them as suspects in a theft.     determination of historical facts, but the second is a
When the Gardenhires did eventually attempt to make a                  mixed question of law and fact: 'The historical facts are
police report concerning Ms. Della Sala, they were already             admitted or established, the rule of law is undisputed, and
criminal suspects, putting their comments in the “suspect              the issue is whether the facts satisfy the [relevant]
making an excuse” category -- which police may choose to               statutory [or constitutional] standard, or to put it another
10    Gardenhire, et al. v. Schubert               No. 98-6434      No. 98-6434               Gardenhire, et al. v. Schubert     23

  way, whether the rule of law as applied to the established        that the plaintiff make at least a prima facie showing that
  facts is or is not violated.'                                     similarly situated persons outside her category were not
                                                                    prosecuted.” S temler v. City of Florence, 126 F.3d 856, 873
Ornelas, 517 U.S. at 696-97 (citing Pullman-Standard v.             (6th Cir. 1997). Furthermore, “there is a strong presumption
Swint, 456 U.S. 273, 289 n.19 (1982)).                              that the state actors have properly discharged their official
                                                                    duties, and to overcome that presumption the plaintiff must
   In making the determination of whether the right was             present clear evidence to the contrary; the standard is a
clearly established in this case, the Court must apply the facts    demanding one.” Id. (citations omitted). The Gardenhires’
to determine the legal question of whether there was probable       Equal Protection claim is based on the theory that Chief
cause for an arrest. This Court will only rely on the               Schubert selectively enforced Tennessee’s criminal laws by
undisputed facts in making this determination. The                  arresting them on December 31, 1996 and refusing to
undisputed facts are as follows: when the Gardenhires were          investigate Ms. Della Sala.
at their residence, Chief Schubert told them that they “needed
to go” to the police station. The Gardenhires, while at the            Appellant argues that the Gardenhires have not identified
police station, were read their Miranda rights and questioned.      a clearly established right which he violated on December 31,
It is also undisputed that when the Gardenhires were with           1996, because they have not met their burden of producing a
Chief Schubert at their store, Chief Schubert told the              case showing that they have a constitutional right to have
Gardenhires that they “needed to go” to the Justice Center;         criminal laws enforced against other citizens. Appellant’s
instructed them that they “needed to follow” a police officer       argument misapprehends the doctrine of selective
to the station; and advised them that they would be booked on       enforcement.       While it is true that states have no
criminal charges and released on bond once they reached the         constitutional duty to protect citizens from violence by private
Justice Center.                                                     actors, see DeShaney v. Winnebago County Dept. of Soc.
                                                                    Serv., 489 U.S. 189, 195 (1989), it is clearly established that
  As for the determination of probable cause, the undisputed        “the State may not, of course, selectively deny its protective
facts before the Court are that Mary Della Sala claimed that        services to certain disfavored minorities without violating the
objects from her store were missing and that those objects          Equal Protection Clause.” Id. at 197 n.3 (citing Yick Wo v.
were visible in the store-front window of the Gardenhires'          Hopkins, 118 U.S. 356 (1886)).
store which was adjacent to Sala's store.
                                                                      Appellant also raises the argument that because Ms.
   What is in dispute in this case is whether Chief Schubert        Gardenhire is Caucasian and admits to being the sole owner
arrested the Gardenhires, and if he did arrest them, whether he     of Uniquely Yours, neither Mr. nor Ms. Gardenhire can bring
had probable cause to do so. Just as in Williams v. Mehra, the      an Equal Protection claim. There are several flaws with this
only "'facts' in dispute are the ultimate issues to be decided by   premise. To begin, this is the first time Appellant has raised
applying the law to the basic facts. . . ." 186 F.3d at 690. The    the issue. Appellate courts are free to decline consideration
determination of whether there was probable cause and               of arguments made for the first time on appeal. See id. at 195
whether there was an arrest involves mixed issues of law and        n.2. This argument also fails on substantive grounds. First,
fact, which are treated as an issue of law, and vest this Court     the Gardenhires’ Equal Protection claim stems not from Chief
with jurisdiction to hear the present interlocutory appeal. Id.     Schubert’s failure to protect Ms. Gardenhires’ store, but from
at 690.                                                             the allegedly wrongful arrest of the couple. There is no
                                                                    dispute that Mr. Gardenhire is African-American; the jury
22    Gardenhire, et al. v. Schubert              No. 98-6434      No. 98-6434                    Gardenhire, et al. v. Schubert           11

this context, the court should dismiss a case, or take other           B. Fourth Amendment: The Right to be Free from
appropriate action, if the defendant can prove that the                            Unreasonable Seizures
prosecutor or investigator intentionally singled him out for
punishment because of membership in a protected group or                                    1. State of the Law
the exercise of a constitutionally protected right.” Id. “In our
criminal justice system, the Government retains broad                The Fourth Amendment guarantees that government
discretion as to whom to prosecute.” Wayte v. United States,       officials may not subject citizens to unreasonable searches or
470 U.S. 598, 607 (1985). Although such discretion is broad,       seizures without proper authorization. An intrusion that lacks
“it is not unfettered.” Selectivity in the enforcement of          such authorization is presumptively unreasonable, “subject
criminal laws is subject to constitutional constraints. In         only to a few specifically established and well-delineated
particular, the decision to prosecute may not be deliberately      exceptions.” See Katz v. United States, 389 U.S. 347, 357
based upon an unjustifiable standard such as race, religion or     (1967). For example, police only need a reasonable suspicion
other arbitrary classification.” Id. at 608 (citations omitted).   of criminal activity to conduct a brief investigatory detention.
                                                                   See Terry v. Ohio, 392 U.S. 1, 30 (1968). The determination
  “Selective enforcement can also lead to § 1983 liability if      of “reasonableness” in a Terry stop context depends on a
the plaintiff pleads ‘purposeful discrimination.’” Id.; see also   balance between “the need to search [or seize] against the
Oyler v. Boles, 368 U.S. 448, 456 (1962) (selective                invasion which the search [or seizure] entails.” Id. at 21.
enforcement is a federal constitutional violation if “based        When a detention rises to the level of a full-fledged arrest,
upon an unjustifiable standard such as race, religion, or other    however, the Fourth Amendment demands that the seizure be
arbitrary classification”). Discrimination is “purposeful” if it   supported by probable cause. See Dunaway v. New York, 442
is intended to accomplish some “forbidden aim.” See                U.S. 200, 212-14.
Futernick, 78 F.3d at 1056. Such “forbidden aims” include
intentional selective enforcement because of race, nationality,       There is no question that in 1996 “the law was clearly
religion, gender or “other arbitrary classification.” Id. at       established that, absent probable cause to believe that an
1056-57.                                                           offense had been committed, was being committed, or was
                                                                   about to be committed, officers may not arrest an individual.”
   This Court has established a three-part test for determining    See Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir.
if selective enforcement has occurred:                             1999)(discussing the state of the law in 1991). Thus, the only
                                                                   questions as to the Gardenhires’ Fourth Amendment claim are
  First, [an official] must single out a person belonging to       those of fact: did Chief Schubert “arrest” the Gardenhires on
  an identifiable group, such as those of a particular race or     December 31, 1996? If so, did the arrest lack probable cause?
  religion, or a group exercising constitutional rights, for       If a reasonable jury could answer  “yes” to both questions, this
  prosecution even though he has decided not to prosecute          case must proceed to trial.2
  persons not belonging to that group in similar situations.
  Second, [the official] must initiate the prosecution with
  a discriminatory purpose. Finally, the prosecution must
  have a discriminatory effect on the group which the
  defendant belongs to.                                                2
                                                                         These "facts" in dispute in the present case reach the ultimate issues
                                                                   to be decided and are not those factual disputes that would "divest the
United States v. Anderson, 923 F.2d 450, 453 (6th Cir. 1991).      court of jurisdiction." See Williams v. Mehra, 186 F.3d 685, 690 (6th Cir.
With regard to the first element, “it is an absolute requirement   1999).
12    Gardenhire, et al. v. Schubert                No. 98-6434      No. 98-6434               Gardenhire, et al. v. Schubert      21

           2. Mixed Question of Law and Fact                         making the determination whether probable cause to arrest
                                                                     exists.” Criss, 867 F.2d at 262. Here, a reasonable jury could
      a. Whether Officer Schubert “Arrested” the                     find that Chief Schubert did not have probable cause, based
                    Gardenhires                                      on the totality of information he had at the time, to arrest the
                                                                     Gardenhires.
   To constitute a seizure of the person, just as to constitute an
arrest, there must be either the application of physical force,         Furthermore, the jury will have to analyze the probable
however slight, or, where that is absent, submission to an           cause question in light of when they conclude that the arrest
officer’s “show of authority” to restrain the subject’s liberty.     occurred, because the factors in the probable cause
See California v. Hodari D., 499 U.S. 621, 626-28 (1991). In         determination shifted as the day went on. As the police
this case, it is undisputed that the officers never physically       officers gathered more facts about the alleged crime, the
touched the Gardenhires. Thus, in determining whether                totality of the circumstances changed. For example, if a jury
couple was actually arrested, we must focus on whether the           finds that the arrest took place when the officers asked the
Gardenhires submitted to Officer Schubert’s “show of                 Gardenhires to go to the police station, the probable cause
authority.” “The test for existence of a ‘show of authority’ is      determination centers on Ms. Della Sala’s report and the
an objective one: not whether the citizen perceived that he          siting of the “stolen” items in the window. If, however, the
was being ordered to restrict his movement, but whether the          jury finds that the arrest occurred after the police visited
officer’s words and actions would have conveyed that to a            Uniquely Yours with the Gardenhires, they will have to
reasonable person.” Id. at 628. A person has been “seized”           consider the Gardenhires’ statements at the police station, and
within the meaning of the Fourth Amendment when “in view             the fact that the officers noticed at their store the suspicious
of all the circumstances surrounding the incident, a reasonable      placement of the supposedly stolen items and heard the
person would have believed that he was not free to leave.”           Gardenhires’ allegation that they had been robbed. With such
United States v. Mendenhall, 446 U.S. 544, 544 (1980).               fluid, fact-specific elements at the heart of this probable cause
                                                                     inquiry, it is a question properly reserved to the fact-finding
  Chief Schubert contends that because he never formally             province of a jury. The district court’s finding on this issue
arrested the Gardenhires, the guarantees of the Fourth               is, therefore, AFFIRMED.
Amendment were never implicated. This argument fails. The
Fourth Amendment’s protections are not limited to traditional            C. Fourteenth Amendment: Selective Enforcement
arrests: “a clear deprivation of liberty caused by law
enforcement officers without formal words is nonetheless an                               1. State of the Law
arrest.” See Centanni v. Eight Unknown Officers, 15 F.3d
587, 590 (6th Cir. 1994) (citations omitted). The Supreme               “Sometimes the enforcement of an otherwise valid law can
Court has explained:                                                 be a means of violating constitutional rights by invidious
                                                                     discrimination. To address this problem, courts have
  There is no doubt that at some point in the investigative          developed the doctrine of selective enforcement.” Futernick
  process, police procedures can qualitatively and                   v. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir. 1996).
  quantitatively be so intrusive with respect to a suspect’s         Selective enforcement claims are judged according to
  freedom of movement and privacy interests as to trigger            ordinary Equal Protection standards, which require a
  the full protection of the Fourth and Fourteenth                   petitioner to show both a discriminatory purpose and a
  Amendments. And our view continues to be that the line             discriminatory effect. See id. Usually, claims of selective
  is crossed when the police, without probable cause or a            enforcement arise as a defense in criminal prosecutions. “In
20    Gardenhire, et al. v. Schubert                    No. 98-6434       No. 98-6434               Gardenhire, et al. v. Schubert     13

   In her Dissent, Judge Batchelder states that the Court has               warrant, forcibly remove a person from his home or other
added a "duty to investigate" as a new factor to be used in                 place in which he is entitled to be and transport him to
determining probable cause. The Dissent finds that the police               the police station, where he is detained, although briefly,
had probable cause irrespective of when the Gardenhires were                for investigative purposes. We adhere to the view that
arrested. The factors the Dissent puts forward as establishing              such seizures, at least where not under judicial
probable cause include: that the allegedly stolen items were                supervision, are sufficiently like arrests to invoke the
visible through the Gardenhires' shop; that the stolen items                traditional rule that arrests may constitutionally be made
were actually located in the Gardenhires' shop, and finally,                only on probable cause.
that the placement of the allegedly stolen items was
suspicious. Citing Criss v. City of Kent, 867 F.2d 259 (6th               Hayes v. Florida, 470 U.S. 811, 815-16 (1985) (citations
Cir. 1998), the Dissent states that probable cause is not                 omitted). Thus, the fact that Chief Schubert did not formally
eliminated by the fact that the Gardenhires claimed they were             arrest the Gardenhires does not resolve the issue of whether
innocent.                                                                 their detention amounted to an arrest requiring probable
                                                                          cause.
   Contrary to the Dissent's assertion, this Court is not adding
a duty to investigate as a factor for the establishment of                  Instead, the question is whether a reasonable jury could find
probable cause. This Court recognizes that an officer does                that a person in the Gardenhires’ position would have felt free
not have to investigate independently every claim of                      to leave. We agree with the district court’s analysis in
innocence. See Baker v. McCollan, 443 U.S. at 145-56. But,                concluding that a jury could find that a reasonable person in
this axiom does not suggest that an officer has no duty to                the Gardenhires’ position would not have felt free to leave.
investigate an alleged crime before making an arrest. A                   The undisputed facts the district court considered were that
police officer has probable cause only when he discovers                  Chief Schubert: (1) told the Gardenhires at their residence
reasonably reliable information that the suspect has                      they “needed to go” to the police station; (2) read them their
committed a crime. See Beck, 379 U.S. at 91. And, in                      Miranda rights at the police station; (3) questioned the
obtaining such reliable information, an officer cannot look               Gardenhires extensively at the police station; (4) told the
only at the evidence of guilt while ignoring all exculpatory              Gardenhires later, at the store, that they “needed to go” to the
evidence. Rather, the officer must consider the totality of the           Justice Center; (5) instructed them that they “needed to
circumstances, recognizing both the inculpatory and                       follow” a police officer to the station; and (6) advised the
exculpatory evidence, before determining if he has probable               Gardenhires that they would be booked on criminal charges
cause to make an arrest. See Dietrich, 167 F.3d at 1012.                  and released on bond.
While it is true that “[a] valid arrest based upon then-existing
probable cause is not vitiated if the suspect is later found                Based on these facts, a jury could find that a reasonable
innocent,” “[a] suspect’s satisfactory explanation of                     person in the Gardenhires’ position would have felt that they
suspicious behavior is certainly a factor which law                       were not free to leave. A police officer’s statement that “you
enforcement officers are entitled to take into consideration in           need to go” somewhere carries substantial authoritative
                                                                          weight. We think very few people could hear such a directive
                                                                          from a police officer and still think they were free to act
warrant a finding that the Gardenhires had committed an offense or to
                                                                          otherwise. Once the police removed the Gardenhires from
establish probable cause. See Beck v. Ohio, 379 U.S. at 91. Therefore,    their home to the police station, the encounter took on an
the Chief is not entitled to summary judgment on the basis of qualified   arrest-like nature. See Hayes, 470 U.S. at 816 (holding that
immunity.
14    Gardenhire, et al. v. Schubert               No. 98-6434      No. 98-6434                   Gardenhire, et al. v. Schubert           19

the line separating a Terry stop and an arrest is crossed when      Perhaps this investigation would reveal additional evidence of
police “forcibly remove a person from his home or other place       theft sufficient to establish probable cause. But, standing
in which he is entitled to be and transport him to the police       alone, the woman’s mere allegation that the car was hers
station, where he is detained, although briefly, for                would not create probable cause that the man stole the
investigative purposes”). The custodial nature of the police        Porsche.
station encounter intensified with the time the Gardenhires
spent there and the fact that Chief Schubert read them their           The foregoing hypothetical is almost identical to the facts
Miranda rights. See United States v. Obasa, 15 F.3d 603, 608        in this case. Chief Schubert had the following information
(6th Cir. 1994) (holding police officer knew that Miranda           when he began investigating the Gardenhires: that Mary Della
rights are required to be given only to individuals who are in      Sala claimed that several items from her store were missing,
custody, and “[a]lthough giving Miranda warnings to a               and that these items were visible in the store-front windows
detainee may not automatically convert a Terry stop into an         of the adjacent store. We believe a reasonable jury could find
arrest, it is evidence that the nature of the detention has grown   that the police officers did not have probable cause to arrest
more serious”). The most compelling factor may be Officer           the Gardenhires on this information alone. Certainly, there
Schubert’s telling the Gardenhires, at their store, that they       was enough evidence to justify a Terry stop; the police were
were going to be booked and released on bond once they              authorized to ask the Gardenhires if the items belonged to
reached the Justice Center. We do not think a reasonable            them, to inquire as to why the items were in their store, and to
person would believe he is free to leave after a police officer     gather information about the relationship between Ms. Della
has stated that he must go to a government center to be             Sala and Ms. Gardenhire. But, Ms. Della Sala’s mere
“booked” and that he would have to post bond to be released.        allegation that she owned the items in Ms. Gardenhire’s store-
                                                                    front was not enough to justify an arrest. Further
   In United States v. Obasa, 15 F.3d 603 (6th Cir. 1994),          investigation was necessary at that point. And if the officers
under facts similar to this case, this Court held that the police   had asked further questions, they would have learned that Ms.
had in fact “arrested” the suspect. In Obasa, a police officer      Gardenhire and Ms. Della Sala shared the facilities of both
stopped a man in an airport, searched his clothing, gave him        stores and were in the process of trading store fronts. Such
Miranda warnings and transported him to the police station in       information would lead a reasonable officer to consider that
a police cruiser. The Court held that, although the police          something other than a theft – such as misplacement         or a
never formally arrested the suspect, under these circumstances      simple misunderstanding – had occurred.5
the officer had gone beyond a mere Terry stop and had
arrested the man. Except for the suspect’s transportation in a
police cruiser, the facts in Obasa are nearly identical to those        5
presented in this case. Indeed, the Gardenhires were                      The Dissent finds that Chief Schubert should be granted qualified
                                                                    immunity even if the information the Chief had at the time was not
transported from their home, rather than an airport,                enough to justify an arrest of the Gardenhires. The Dissent reasons that
implicating a higher level of intrusiveness. See Hayes, 470         in 1996, when the Chief arrested the Gardenhires, Criss was the "clearly
U.S. at 815-16.                                                     established law," and did not require police officers to investigate before
                                                                    arresting an individual who was in possession of items that were
  Additionally, the district court only considered the              identified as stolen.
                                                                         However, following Terry v. Ohio, 392 U.S. at 30, also clearly
undisputed facts in making its arrest determination. There are      established law at the time of the incident, this Court finds that Chief
disputed facts, such as Ms. Gardenhire’s alleged attempt to         Schubert only had a reasonable suspicion of criminal activity which
call a lawyer, which a jury should hear. The facts we have on       would only justify a brief investigatory detention. Id. Chief Schubert did
                                                                    not have the requisite “reasonably trustworthy information” sufficient to
18   Gardenhire, et al. v. Schubert               No. 98-6434      No. 98-6434               Gardenhire, et al. v. Schubert     15

street signs – a good almost impossible for private citizens to    the record before us are the mere skeleton of the story, which
obtain legally – the police in Criss could have been almost        must be animated by the details of what happened when the
certain that someone in the house had committed a crime.           police officers arrived at the Gardenhires home, spoke with
Even if the officers had believed the suspect’s statement that     them at the police station and interacted with them later at the
he had not stolen the signs, the suspect still could have been     store. Other relevant points of inquiry include how long the
guilty of other crimes, such as the receipt of stolen property,    Gardenhires were detained at the police station, and what
or aiding and abetting the theft. Here, if the Gardenhires’        exactly the officers said to the Gardenhires at different points
statements were true, it would mean that they were not guilty      during the investigation. Because no physical force was
of any crime. Moreover, there was evidence in addition to the      applied, the officers’ words at each location will be essential
Gardenhires’ bare statements, that would lead a reasonable         in determining whether a reasonable person would have felt
officer to rethink whether the Gardenhires had committed a         free to leave. And, of course, the jury must decide the extent
crime. The obvious placement of the supposedly stolen goods        to which they believe the Gardenhires’ version of events.
and the common doorway between the shops should have               The issue of whether Chief Schubert arrested the Gardenhires,
triggered at least a suspicion that the “theft” was not what it    therefore, is one which must be presented to a jury.
appeared.
                                                                      b. Whether Chief Schubert had probable cause to
   Unlike the street signs in Criss, the items in Uniquely                        arrest the Gardenhires
Yours are not the type that one must presume are stolen.
Guitars, banjos, televisions and VCRs are commonly -- and             Any arrest, whether formal or de facto, requires probable
legally -- owned by countless people. In this case, all the        cause. See Centanni, 15 F.3d at 602. Thus, if a jury
police had was the bare allegation by Mary Della Sala that         determines that Chief Schubert did arrest the Gardenhires, the
these items belonged to her. An allegation by one individual       next inquiry must be whether he had probable cause to do so.
that items in another’s possession actually belong to her is not   Generally, probable cause exists when the police have
enough to create probable cause that a crime has been              “reasonably trustworthy information . . . sufficient to warrant
committed. Consider the following situation: a woman flags         a prudent man in believing that the petitioner had committed
down a police officer and points out a Porsche being driven        or was committing an offense.” Beck v. Ohio, 379 U.S. 89,
by a young man, which the woman claims is her car and              91 (1964). “Probable cause determinations involve an
which has been stolen by the man. Would the officer have           examination of all facts and circumstances within an officer's
probable cause to arrest the Porsche’s driver at that point?       knowledge at the time of an arrest.” See Dietrich, 167 F.3d
We think not. The officer would have a reasonable suspicion        at 1012. “In general, the existence of probable cause in a
of criminal activity justifying a brief investigatory detention    § 1983 action presents a jury question, unless there is only
pursuant to Terry v. Ohio, 392 U.S. at 30. But, without more,      one reasonable determination possible.” Pyles v. Raisor, 60
the officer would not yet have the requisite “reasonably           F.3d 1211, 1215 (6th Cir. 1995). Here, viewing the facts in
trustworthy information” sufficient to warrant a prudent man       a light most favorable to the Gardenhires, we must determine
in believing that the young man driving the Porsche had            whether a jury could conclude that a reasonable officer could
committed or was committing an offense. See Beck v. Ohio,          have believed that the couple had probably committed or were
379 U.S. at 91. Rather, the police officer would have the          committing a crime. There is substantial evidence supporting
right and duty to detain and question the driver for a short       each party’s position.
time: to ask if the car was his, research his licence plate, and
request to see his drivers licence, registration and insurance.
16       Gardenhire, et al. v. Schubert                    No. 98-6434        No. 98-6434               Gardenhire, et al. v. Schubert       17

  As the Gardenhires point out, there were factors present at                 open windows of an apartment, City of Kent street signs
the time of the initial police investigation which may have                   hanging on the walls of the plaintiff’s living room. The
made it unreasonable for Chief Schubert to believe that the                   officers went in and spoke with the plaintiff, who admitted
Gardenhires had committed any crime. For example, the                         that he was a co-tenant of the house, and knew that the signs
placement of the allegedly stolen goods was suspicious. It is                 were hanging in his residence, but stated that they belonged
unlikely that one store owner would steal goods from another                  to his roommate. The officers arrested him for receipt of
and then leave those goods in the window of her own store-                    stolen property. In fact, the plaintiff’s roommate, alone, had
front. In fact, based on where the goods were found, two of                   stolen the street signs. The plaintiff brought suit against the
the initial investigating officials believed that the Gardenhires             officers, arguing that his innocence of the crime, combined
had been set up: both Officer Davis and Magistrate Wheeler                    with the officers’ failure to investigate his involvement, meant
thought the alleged theft was a set-up. Even Chief Schubert                   there was no probable cause to arrest him. The Court found
admits now that the placement of the items suggests       that the            that the officers had probable cause to arrest the plaintiff. The
Gardenhires had not committed a theft.3                And, the               Court reasoned:
Gardenhires tried to explain to the officers then that they had
not committed a crime, but had been the victims of one. The                     A suspect’s satisfactory explanation of suspicious
officers did not bother to investigate the Gardenhires’ claim,4                 behavior is certainly a factor which law enforcement
which, in hindsight, appears to have been a reasonable one.                     officers are entitled to take into consideration in making
                                                                                the determination whether probable cause to arrest exists.
  On the other hand, there was substantial inculpatory                          A policeman, however is under no obligation to give any
evidence against the Gardenhires. The officers had received                     credence to a suspect’s story nor should a plausible
a report of theft and discovered the very items described in                    explanation in any sense require the officer to forego
that report in the Gardenhires’ store. The Gardenhires                          arrest pending further investigation if the facts as initially
admitted to having a key to Ms. Della Sala’s store and to                       discovered provide probable cause.
having Ms. Della Sala’s flamingo dish at their house.
                                                                              Id. at 262. “To hold otherwise,” the Court explained, “would
  It is true, as the appellant notes, that in Criss v. City of                be to allow every suspect, guilty or innocent, to avoid arrest
Kent, 867 F.2d 259 (6th Cir. 1988), this Court found that                     simply by claiming ‘it wasn’t me.’” Id. The Criss decision
officers in a similar situation did have probable cause to arrest             echoes the Supreme Court’s prior reasoning in Baker v.
the suspect. In Criss, two police officers noticed, through the               McCollan, 443 U.S. 137 (1979), that “we do not think a
                                                                              sheriff executing an arrest warrant is required by the
                                                                              Constitution to investigate independently every claim of
                                                                              innocence.” Id. at 145-56 (1979); see also Coogan v. City of
     3
      Chief Schubert has never admitted that he believed at the time of his   Wixom, 820 F.2d 170 (6th Cir. 1987) (“Where there are
investigation that the Gardenhires were set up – despite the Gardenhires’     sufficient facts to warrant a prudent person in a defendant’s
claim to the contrary.                                                        position to believe that a crime was committed and that the
     4                                                                        person charged committed it, the failure to make a further
     The Gardenhires argue that because Ms. Gardenhire and Ms. Della          investigation does not negate probable cause”).
Sala were in the process of trading store-fronts, Chief Schubert had no
probable cause to believe the items found in Uniquely Yours were stolen.
The couple has not, however, provided any evidence demonstrating that           While instructive, however, the Criss case is not entirely
Chief Schubert was at any time made aware of the women’s business             analogous to this one. Because the suspicious items were city
arrangement.
