                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                              ______________

                                    No. 11-3674
                                  ______________

                            LUIS BURGOS-CINTRON
                              a/k/a LUIS BURGOS,

                                                           Appellant

                                         v.

 AUGUSTUS NYEKAN, JR., Individually & in his official capacity as a Trooper in the
                        New Jersey Division of State Police;
  JAMES SOUTH, Individually & in his official capacity as a Detective Sergeant First
    Class in the New Jersey Division of State Police-Strategic Investigations Unit;
 MARK CUNARD, Individually & in his official capacity as a Detective Sergeant in the
          New Jersey Division of State Police-Strategic Investigations Unit;
RICHARD BUMBERA, Individually & in his official capacity as a Detective Sergeant in
                      the New Jersey Division of State Police;
                          NEW JERSEY STATE POLICE;
  NEW JERSEY DIVISION OF STATE POLICE-STRATEGIC INVESTIGATIONS
                  UNIT; CAMDEN CITY POLICE DEPARTMENT;
        CITY OF CAMDEN; STATE OF NEW JERSEY; JOHN DOES 1-10
                                  ______________

                   On Appeal from the United States District Court
                           for the District of New Jersey
                          (D.C. Civ. No. 1-09-cv-04470)
                   Honorable Joseph H. Rodriguez, District Judge
                                  ______________

                     Submitted under Third Circuit LAR 34.1(a)
                                December 14, 2012

     BEFORE: GREENAWAY, JR., GREENBERG, and COWEN, Circuit Judges

                              (Filed: January 11, 2013)
                                  ______________
                               OPINION OF THE COURT
                                   ______________

GREENBERG, Circuit Judge.

       This matter comes on before this Court on an appeal from an order entering

summary judgment on September 19, 2011, in accordance with the opinion of the District

Court of that day. The record on the motion for summary judgment showed that the

following happened. In 2001 plaintiff, now appellant, Luis Burgos-Cintron, was arrested

on drug charges. At that time in an unsuccessful effort to avoid the charges, he falsely

gave his name as Luis Santiago and as a result was arrested under that name. Years later

on September 15, 2007, an apparently real Luis Santiago and Joseph Thompson were

involved in an aggravated assault on Kareem Parker in Camden, New Jersey. During the

assault Santiago fired a weapon at Parker but missed. The Camden police responded to

the incident and, when questioned, Parker identified the assailants as Luis Santiago and

Joseph Thompson. The police, however, did not make an arrest at that time as they

could not locate the assailants. They, however, did find pistol casings confirming that a

weapon had been fired as Parker had claimed.

       Within one week of September 15, 2007, the New Jersey State Police took over

the investigation of the case. Trooper Augustus Nyekan and Sergeant Richard Bumbera,

the only appellees on this appeal, were in charge of the investigation and interviewed

Parker. Parker reiterated to the state police that Luis Santiago and Joseph Thompson had

been the assailants and said that he had attended Camden High School with them and



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knew them well. In particular, Parker said that “I know them my whole life” and “I know

who they are.” App. at 333.

       Through the use of a surveillance tape the state police identified George Brown,

Sr. as a possible witness to the incident. Brown did witness the incident and indicated

that Santiago and Thompson were the assailants. Like Parker, Brown said he had gone to

Camden High School with Santiago and Thompson and knew them well. Indeed,

Burgos-Cintron had gone to Camden High School but had done so before Parker and

Brown were students there so the Luis Santiago with whom they had gone to high school

was not Burgos-Cintron.

       At the time that the state police interviewed Parker and Brown the police showed

them a picture of Burgos-Cintron taken in the aftermath of his arrest for the 2001 drug

charges when he identified himself as Luis Santiago. Parker and Brown identified

Burgos-Cintron from the picture as the person who shot at Parker. Nevertheless, when

the state police later arrested Burgos-Cintron, he insisted that he was not guilty and

asserted that they were arresting the wrong person. Finally, on July 9, 2008, after

Burgos-Cintron, who had been unable to make bail, had been detained for about ten

months, Parker again saw his picture before a hearing in the criminal case. At that time

Parker recanted his earlier statement implicating Burgos-Cintron as the assailant and said

his previous identification of him had been incorrect. A New Jersey state court

subsequently dismissed the case against Burgos-Cintron and he was released. He then

initiated this litigation against individuals and entities involved in his arrest and

detention.

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       Most of the original defendants in this case are not parties to this appeal because

this case was dismissed by stipulation in the District Court against all the defendants

except for Nyekan and Bumbera. Moreover, the claims against Nyekan and Bumbera are

now limited to those asserting false arrest, false imprisonment, and malicious

prosecution. Burgos-Cintron has packaged these three remaining claims as Fourth

Amendment constitutional claims under 42 U.S.C. § 1983. Thus, in our procedural

discussion we only need explain that Nyekan and Bumbera moved for summary

judgment contending that they had probable cause for making the arrest leading to

Burgos-Cintron’s arrest and detention and thus could not be liable on any of his three

claims.

       The District Court granted their motion as it pointed out that appellees “relied on

information provided by the victim and eyewitness who both claimed to have personal

knowledge of the suspect [and appellees] had no reason to doubt the veracity of the

identification presented.” App. at 14. Burgos-Cintron has appealed contending in his

opening brief that “the District Court err[ed] in granting summary judgment in favor of

[Nyekan and Bumbera] finding that as a matter of law, [they] had a reasonable belief that

there was probable cause to arrest Burgos-Cintron.” Appellant’s br. at 6. Burgos-Cintron

does not contend that appellees could be liable if they had probable cause for his arrest.

The appellees agree with this legal principle, the application of which is at the center of

this appeal.

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

have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review on this appeal and

                                              4
thus must affirm the order for summary judgment if there is no dispute of material fact

and appellees are entitled to a judgment as a matter of law. See Shaver v. Siemens Corp.,

670 F.3d 462, 470 (3d Cir. 2012).

       In Burgos-Cintron’s reply brief he reiterates the position he took in his opening

brief by stating that “the arresting officers lacked probable cause to arrest because the

identification was not reliable.” Appellant’s reply br. at 3. He then goes on to state that

“[t]he absence of taint, or conversely the presence of reliability, must be determined from

the totality of the circumstances in each particular case.” Id. at 6 (citing State v. Cherry,

674 A.2d 589, 597 (N.J. Super Ct. App. Div. 1995)). We agree that the facts of each case

must be examined in a probable cause analysis. Burgos-Cintron cites our opinion in

Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d. Cir. 1995), for the principle that

in determining whether there was probable cause for an arrest “the issue is whether [the]

information [on which the police relied] would warrant a reasonable person to believe

that an offense has been or is being committed by the person to be arrested.” Appellant’s

br. at 20.

       Burgos-Cintron does not contend that the appellees lacked probable cause to

believe that an offense had been committed and thus we focus our probable cause

analysis on the question of whether as a matter of law the appellees had sufficient basis to

arrest him as an assailant. After our review of the case we are satisfied that even

applying that exacting standard, appellees did have probable cause to arrest Burgos-

Cintron. In reaching our conclusion we first rely on the undisputed fact that Parker and

Brown originally positively identified one assailant as a person named Luis Santiago and

                                              5
even now in his brief Burgos-Cintron does not dispute that the name of one assailant was

Luis Santiago. What Burgos-Cintron does contend, and we accept this contention, is that

there are numerous persons named Luis Santiago in the Camden area and when they

arrested him appellees were aware of this fact. The presence of persons with that name

leads Burgos-Cintron to contend that an identification of an assailant based on the person

being arrested having the name Luis Santiago and a Luis Santiago having been identified

as an assailant would not give probable cause for his arrest.

       Though we are affirming the order for summary judgment we agree with Burgos-

Cintron that appellees would not have had probable cause to arrest him simply because he

had called himself Luis Santiago some years earlier and Parker and Brown identified a

person named Luis Santiago as the assailant. But in arresting Burgos-Cintron appellees

did not rely merely on a misidentification resulting from the use of a name for they

showed Burgos-Cintron’s picture to Parker and Brown who both identified the person in

the picture whatever his name as an assailant. Inasmuch as both Parker and Brown who

claimed to know Luis Santiago very well said that the Luis Santiago that they knew from

high school was an assailant, and indicated that the person in the photograph was an

assailant, appellees had probable cause to arrest Burgos-Cintron. We reach this

conclusion even though there was some information available to them at the time of the

arrest tending to suggest that Burgos-Cintron was not the assailant as there was a

significant difference between the physical description that Parker and Brown gave of the

assailant and a correct physical description of Burgos-Cintron.



                                             6
       We realize that appellees did not show an array of pictures of persons named Luis

Santiago or even a more general photo array to Parker and Brown before appellees

accepted Parker’s and Brown’s identification of Burgos-Cintron as an assailant and

arrested him. But this case was not one in which the victim was not acquainted with the

defendant but was asked to identify the person who committed an offense from a photo

array. Thus, much of what has been written in the many opinions about the possible

unfair suggestive aspects of photo arrays is immaterial in this case for usually the person

making the identification does not claim to know the person he is identifying.

       Finally, we have not overlooked Burgos-Cintron’s argument that appellees did not

comply with the New Jersey attorney general’s guidelines for photo arrays intended to

ensure the accuracy of photo identifications. We see no reason to believe that those

guidelines are intended to deal with a situation in which the person making the

identification previously had identified a particular individual as the perpetrator of an

offense and he is shown a single photograph merely to confirm his earlier identification.

In any event, Burgos-Cintron does not contend that these guidelines which, after all

merely deal with police procedure, have the force of law. Overall, we are satisfied that as

a matter of law appellees had probable cause to arrest Burgos-Cintron even though

sometimes the determination of whether there is probable cause for an arrest is a factual

question for a jury. See Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 790 (3d Cir.

2000). Therefore, inasmuch as all of Burgos-Cintron’s bases for liability depend on

appellees lacking probable cause for his arrest we will affirm the order of September 19,

2011, granting appellees summary judgment.

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