
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1226                                   RORY C. HOLLAND,                                Plaintiff, Appellant,                                          v.                  CITY OF PORTLAND, SULLIVAN RIZZO and BRUCE COFFIN,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                                Boudin, Circuit Judge,                                        _____________                              and Lisi,* District Judge.                                         ______________                                 ____________________            Stuart W. Tisdale for appellant.            _________________            John E.  Sedgewick with whom  Berman & Simmons, P.A.  was on brief            __________________            ______________________        for appellees.                                 ____________________                                   December 6, 1996                                 ____________________                                    ____________________        *Of the District of Rhode Island, sitting by designation.                 BOUDIN, Circuit Judge.   Rory Holland  sued the City  of                         _____________            Portland,  Maine, and two  Portland police officers, Sullivan            Rizzo  and Bruce  Coffin, for  damages and  injunctive relief            under  42  U.S.C.   1983  and  Maine tort  law  for Holland's            allegedly  wrongful false  arrest and  detention.   Following            discovery, the district court  granted the defendants' motion            for summary  judgment on  all of  Holland's claims.   Holland            appeals   from   the   court's   judgment    dismissing   his            section 1983, but not his state law, claim.                 The  facts,  taken most  favorably  to  Holland, are  as            follows.   At about 1:20  p.m. on October  18, 1994, Portland            police  radio traffic reported a  robbery at the  Key Bank in            Canal Plaza.  The police dispatcher described the suspect  as            a black male, about 6'2"  tall, 185 pounds, unshaven, wearing            a brown jacket, possibly suede, and a black hat, and carrying            a black leather  briefcase.  The dispatcher reported that the            suspect  had fled  on  foot and  did  not indicate  that  any            vehicle had been involved.                 Shortly after 2:00  p.m. on  the same  day, Holland  was            driving  a  Subaru to  the  Cumberland  County Courthouse  in            Portland.  He drove past  a bicycle patrolman, Daniel Knight,            and  turned the  corner.  Knight  had heard  the dispatcher's            report about the robbery.  When he saw the Subaru, he noticed            that  the driver, Holland, was a tall, thin black man wearing            a brown  or black jacket and  a hat who appeared  to meet the                                         -2-                                         -2-            description  of the suspect, and he also noticed that the car            had no back window.                 Knight reported to the police dispatcher, "Ten-twenty on            Rory Holland, he's in the area."  Although Knight had not met            Holland, he  thought that the Subaru  driver fit descriptions            of Holland that  Knight had  seen in police  bulletins.   The            dispatcher asked  if Holland's  clothing matched that  of the            reported suspect.  Knight did not respond, but the dispatcher            immediately sent  backup police units and  indicated that the            suspect was a "possible match."                 After  turning the  corner  Holland parked  his car  and            started walking across the street towards the courthouse.  He            wore a  brown tweed jacket and  a brown leather  hat, and was            carrying a black nylon briefcase  and a white canvas bookbag.            Knight  stopped  Holland  in  the crosswalk  and,  addressing            Holland  by  name, said  that a  bank  robbery had  just been            committed and  asked  where Holland  had been.   Knight  also            asked about  the contents of Holland's bag.  Holland remained            silent.                  Coffin, Rizzo,  and another officer soon  arrived at the            scene, and  the officers then  walked up to  Holland, backing            him up to  his car.  Coffin was familiar  with Holland's past            history   from  information  circulated   within  the  police            department and  thought that  the Subaru driver  was Holland.            Rizzo had  also heard  about Holland in  department briefings                                         -3-                                         -3-            and  previously had seen a photograph of Holland.  Coffin and            Rizzo then began to ask Holland questions concerning the bank            robbery.                 Although  Rizzo  told  Holland  that he  was  not  under            arrest,  and that the police  just wanted to  learn about the            bank robbery,  Holland remained silent.  Noticing the missing            rear  window in Holland's car,  Rizzo asked Knight if Holland            had  been driving.    When Knight  said  that he  had,  Rizzo            allegedly said, "well, then we  can get him for not having  a            license  or something or other."  Rizzo then said, "Rory, you            know, I  can arrest you if you don't show me a valid driver's            license and tell me where you live . . . ."                 Holland continued to remain silent.  Rizzo asked Holland            several more times to  produce his license and to  tell Rizzo            where he lived, saying that otherwise Rizzo would  arrest him            "for failure to  identify yourself to me."  Eventually, Rizzo            told Holland that he was under arrest.   At that point, Rizzo            and Coffin patted down Holland, removed his wallet, and found            a driver's license in  the wallet that identified  the driver            as Rory Holland.  Rizzo then allegedly said,  "I guess we got            a license in here, I guess we can't get you for that."                 Coffin and  Rizzo took Holland to  the Cumberland County            Jail.  According to Holland, some officers referred to him as            a  bank robbery suspect.   Holland refused to  speak with the            booking  officer or others at the jail.  Holland was released                                         -4-                                         -4-            on  bail after  the police  apprehended another  bank robbery            suspect.   Ultimately, no  charges of any  kind were  pressed            against Holland.                 Thereafter,  Holland  brought the  present  suit against            Rizzo, Coffin  and the  city.  As  the basis for  his section            1983 claim, Holland alleged that his arrest had  violated the            Fourth Amendment's protection  against unreasonable  searches            and  seizures  made  applicable  to the  states  through  the            Fourteenth  Amendment.   Specifically, the  complaint alleged            that the police lacked  probable cause to arrest him  for any            reason,  that the actual charge  was a pretext  to detain him            for questioning about  the bank robbery, and  that the arrest            was retaliation for his refusal to speak.                   In the  course of discovery Holland--who  had previously            been in disputes with  the Portland police--learned that some            weeks  before   the   arrest,  the   police  had   circulated            information  about him  in  so-called crime  alert bulletins.            Knitting  the bulletins  together with the  disputes, Holland            suggested that his arrest  was part of a general  campaign of            harassment directed against  him by the police.   Holland did            not amend his complaint.                 On  January 25,  1996,  the district  court granted  the            defendants' motion for summary  judgment.  The district court            ruled that  the police had  probable cause to  arrest Holland            for failing to identify  himself or provide his license.   It                                         -5-                                         -5-            called  the charge of harassment "hollow."  And it ruled that            the city was not liable because, quite apart from the lack of            a municipal custom or policy, this arrest had been justified.            Holland now appeals.                 1.  On review of a grant of summary judgment, this court            considers the matter de novo, taking the facts most favorably                                 _______            to the non-moving party.  St. Hilaire v. City of Laconia,  71                                      ___________    _______________            F.3d 20, 24 (1st  Cir. 1995), cert. denied,  116 S. Ct.  2548                                          ____________            (1996).   We  begin  by considering  whether  the police  had            probable cause to arrest  Holland--that is, whether the facts            known  to the police  indicated that Holland  had committed a            criminal offense.  The parties agree that Holland was charged            with  violating  29  Me.  Rev.  Stat.  Ann.     2501   (later            renumbered) which said:                    Whoever, while operating  a vehicle in violation                 of this [motor vehicle regulations] Title, fails or                 refuses, when requested by an officer authorized to                 make arrests, to give  the operator's correct name,                 address  and date of birth  is guilty of  a Class E                 crime.                   At first  blush, the literal language  might appear to            make the  officers' authority depend upon  whether the driver            was  actually operating in violation  of state law.   But the            Maine Supreme Judicial Court  has interpreted section 2501 to            permit an  officer to stop a  driver and ask his  name on the            basis of an  articulable suspicion that  the driver has  done            something wrong.   State v. Littlefield, 677 A.2d  1055, 1057                               _____    ___________            (Me. 1996).  Indeed, even  if it then becomes clear that  the                                         -6-                                         -6-            suspected violation  had not occurred, the  officer may still            insist  on  seeing  the  driver's  license and  registration.            State v. Hill, 606 A.2d 793, 794-95 (Me. 1992).              _____    ____                 Holland may  not have violated any motor  vehicle law by            driving with a  missing rear  window.  But  the missing  rear            window,  or  any  other similar  non-cosmetic  damage,  could            reasonably  create a suspicion of  such a violation.   See 29                                                                   ___            Me.  Rev.  Stat.  Ann.    2503(1)(D)  (requiring  that  motor            vehicle equipment "[n]ot pose a hazard . . . .").  Thus, when            the officers asked Holland  to identify himself, section 2501            required  Holland to provide  his name, address,  and date of            birth--or face arrest.  See 17-A Me. Rev. Stat.  Ann.   15(B)                                    ___            (authorizing  arrest  for  Class  E crimes  committed  in  an            officer's presence).                 Holland does  not challenge the initial  stop, see Terry                                                                ___ _____            v. Ohio, 392 U.S. 1 (1968), nor argue that the statute itself               ____            is unconstitutional.  Cf. California  v. Byers, 402 U.S.  424                                  ___ __________     _____            (1971).  He  instead argues that the police  had no reason to            request his name since they already knew it, citing Rodriguez                                                                _________            v. Comas,  888 F.2d 899 (1st  Cir. 1989).  But  where the law               _____            requires  the motorist  to supply  his name,  the police  can            reasonably  insist  upon confirmation.   Further,  the police            also sought  Holland's  present address,  which  the  statute            required  him to provide, and there is no indication that the            police had this information.                                         -7-                                         -7-                 Holland's reliance on  Rodriquez is  misplaced.   There,                                        _________            Rodriguez  was arrested on a charge of obstruction of justice            because he declined  to provide  his name and  address to  an            officer.   Rodriquez was well known to the officer, and there            was no separate statute--such  as Maine's motor vehicle law--            requiring that he provide  his name and address.   This court            held only that the refusal could not even arguably constitute            "obstruction of  justice" where  the refusal to  provide this            already-known information neither could nor did  obstruct the            officer's investigation.  888 F.2d at 902.                 Quoting language from  other cases, Holland  also claims            that police officers  may not  arrest a suspect  if they  can            obtain the  information that  they seek through  a reasonable            investigation.   See Sevigny  v. Dicksey,  846 F.2d  953 (4th                             ___ _______     _______            Cir.  1988); BeVier v. Hucal,  806 F.2d 123  (7th Cir. 1986).                         ______    _____            But  these  cases impose  no  such  limitation; rather,  they            demand  that officers  undertake reasonable  investigation to            determine whether probable cause  exists to arrest a suspect.                      _______            Sevigny, 846 F.2d at  957-58; BeVier, 806 F.2d at 127.  Here,            _______                       ______            Holland  committed  the  offense   in  the  presence  of  the            officers.                 2.   Although  Holland  devotes  much  of his  brief  to            disputing  the police claim of probable cause, he has a fall-            back contention less easily  resolved.  Fairly construing his            arguments,  we  take him  to  challenge the  validity  of his                                         -8-                                         -8-            arrest  even  assuming  probable  cause  (which  he  disputes            strongly  but we  find to be  established).  In  sum, he says            that the police  nominally arrested him for  refusing to give            his  name and address but  that this was  a "pretext" because            the arrest was motivated by other, more sinister objectives.                 On Holland's  version of events, which  must be credited            at  this stage,  see St.  Hilaire,  71 F.3d  at 24,  there is                             ___ ____________            reason for thinking that  the police did not care  much about            the  missing car window or Holland's failure to give his name            or address.  Indeed,  a jury, after a full  trial, might well            find  that  the  police  arrested  Holland  for  a  technical            violation  in order  to pursue  their investigation  into the            bank robbery,  suspecting Holland  of complicity  but perhaps            lacking enough evidence to arrest him on this charge.                 The term "pretext" is sometimes used, as Holland uses it            here,  with the  assertion that  the police  may not  make an            arrest otherwise based on probable cause when  their true aim            is  to forward  some  other investigation.    But aside  from            dicta, it is  hard to  find recent holdings  to support  this            proposition; one  exception is the Eleventh  Circuit.  United                                                                   ______            States v.  Valdez, 931 F.2d  1448, 1450-51 (11th  Cir. 1991).            ______     ______            Our  own  circuit,  like  several others,  has  rejected  the                                         -9-                                         -9-            inquiry into motive.  United States  v. McCambridge, 551 F.2d                                  _____________     ___________            865, 869-70 (1st Cir. 1977).1                 In all  events, the  Supreme Court recently  settled the            matter in Whren  v. United  States, 116 S.  Ct. 1769  (1996),                      _____     ______________            holding  that   "[s]ubjective  intentions  play  no  role  in            ordinary, probable-cause Fourth Amendment  analysis."  Id. at                                                                   ___            1774.   There, the  Court explicitly  rejected the very  test            used by the Eleventh Circuit in Valdez which asks whether the                                            ______            officer  "would" have  made  the stop  or  arrest absent  the            "other" motive.  See  id. at 1774-75; see also  United States                             ___  ___             ________  _____________            v. Robinson,  414 U.S.  218, 221 n.1  (1973) (lawful  traffic               ________            violation arrest was not unconstitutional, despite claim that            it was "a mere pretext for a narcotics search").                 The conflicting policy concerns are obvious.  On the one            hand,  motor vehicle  operation  often gives  rise to  fairly            minor  violations, making it easy  for the police  to find an            excuse; on  the  other hand,  the  violation does  provide  a            bright  line standard  while an  inquiry into  actual motive,            directly or indirectly, invites all kinds  of diversion.  See                                                                      ___            Whren, 116 S. Ct. at 1774-75.  Further, "pretextual" stops or            _____            arrests, where  probable cause  exists and  the motive  is to                                            ____________________                 1To the annoyance of  commentators, the dominant view in            the  circuits  has favored  a strictly  objective test  as to            whether  probable cause justifies a search or an arrest.  See                                                                      ___            1 LaFave, Search and  Seizure   1.4(e), at 120-21  & n.61 (3d                      ___________________            ed. 1996).                                         -10-                                         -10-            investigate another crime, may not seem  all that sinister to            the Justices, who were unanimous in Whren.                                                _____                 How  far  Whren would  extend  in  the face  of  dubious                           _____            motives or other constitutional  concerns is a more difficult            question,  and one  not entirely  avoidable here.   Holland's            version  of events suggests that the police aimed not only to            hold  him for further investigation  but also that the arrest                                                     ____            itself was  retaliation for  his refusal to  answer questions            about the robbery.  According to Holland, after he refused to            answer any questions about the bank  robbery, Rizzo said that            because  Holland had been driving, "well, then we can get him            for not having  a license  or something or  other."   Holland            further asserted  that Rizzo  was "obviously upset  and angry            with me  that I would  not speak  with him at  all about  the            robbery."                 Holland's  brief barely refers  to the  Fifth Amendment;            and the  law on  the relationship between  police questioning            and   the   privilege   against  self-incrimination   is   an            embarrassing tangle.   Historically, the privilege and police            questioning were unconnected, see 8 Wigmore, Evidence   2252,                                          ___            ________            at 328-29  (McNaughton rev.  ed. 1961);  and the  more modern            blurring of lines has left unclear whether the privilege  can            ever be  violated by such questioning  where no incriminating            statement is thereafter used  in a proceeding.  See  Wiley v.                                                            ___  _____                                         -11-                                         -11-            Mayor and City Council of Baltimore, 48 F.3d 773, 777-78 (4th            ___________________________________            Cir.) (Powell, J.) cert. denied, 116 S. Ct. 89 (1995).2                               ____________                 Even  if the  Fifth Amendment  is put  to one  side, the            defendants  do  not  suggest   that  Holland  had  any  legal            obligation to  answer questions  about the robbery.   Compare                                                                  _______            Brown v. Texas, 443 U.S. 47, 52-53  (1979).  While the police            _____    _____            did not purport  to arrest Holland for refusing to cooperate,            the facts might permit  a jury to think  that this was  their            underlying  motivation.    Yet  assuming  this  premise,  the            question  remains  whether  such   a  motive  for  an  arrest            otherwise justified  by probable cause alters  the message of            Whren.            _____                 In  our view, it does not.  The police, prosecutors, and            courts constantly make judgments--including decisions  not to            prosecute or to permit or impose a reduced sentence--based on            an assessment  of an individual's cooperation.   The decision            to arrest,  where probable  cause exists, is  a discretionary            one informed  by many  considerations.   And  any attempt  to            untangle  the  ascribed motive  from  a skein  of  others, in            prompting an  arrest justified  by objective  probable cause,                                            ____________________                 2Of course,  Holland never  asserted the  privilege when            questioned, as  is customarily required.    The Supreme Court            has  said that  this  requirement may  not  apply in  police-            station  questioning  or  like  interrogation,  Minnesota  v.                                                            _________            Murphy, 465  U.S. 420, 429-30 (1984),  but shortly thereafter            ______            it ruled that one held briefly  in a traffic stop was not "in            custody" for purposes  of Miranda.  Berkemer v.  McCarty, 468                                      _______   ________     _______            U.S. 420, 440 (1984).                                         -12-                                         -12-            would  invite  exactly  the  inquiry into  police  motivation            condemned by Whren.                         _____                 Actual motive sometimes does play a role in section 1983            actions.   E.g., Waters  v.  Churchill, 511  U.S. 661  (1994)                       ____  ______      _________            (discharge  in retaliation  for exercise  of  First Amendment            rights).   But in evaluating  arrests, the Supreme  Court has            given  primacy  to  the   Fourth  Amendment's  own  objective            standards,  even  where other  constitutional bases  might be            invoked.  Thus, the Court recently rejected an attempt to use            substantive  due process  as a  more favorable  framework for            assessing a claim, at least insofar  as it was deemed one for            unlawful detention.  Albright v. Oliver, 510 U.S. 266, 274-75                                 ________    ______            (1994).                 This does not mean  that probable cause forecloses every            possible  challenge  to an  arrest.    Whren itself  strongly                                                   _____            implies  that an  equal  protection challenge  to an  arrest,            despite probable  cause existing, might  yet be  entertained,            although the court does not say what facts would be needed to            support such a challenge.  116 S. Ct. at 1774.   An objective            showing  that (for example)  only blacks or  Asians were ever            arrested for a specific,  widely committed offense would pose            a different  case than Whren.   See  Yick Wo v.  Hopkins, 118                                   _____    ___  _______     _______            U.S. 356 (1886).                 This brings us to Holland's final claim of  ascribing an            illicit  motive for the arrest.  It is evident from Holland's                                         -13-                                         -13-            deposition that he himself  thinks (based on prior incidents)            that he was a target of general police harassment, resting in            part  on the  fact he  is black.   But  the racial  charge is                                                        ______            unsubstantiated  by anything we can find in the record and is            not  directly urged in Holland's appellate brief.  We note it            only to stress that our decision does not reach the difficult            issues  that might  be raised  by a  substantiated  charge of            racial discrimination.   Compare United States v.  Armstrong,                                     _______ _____________     _________            116 S. Ct. 1480, 1486-88 (1996).                 Putting aside racial motives,  we note that the district            court deemed  the entire  harassment  charge unsupported  and            declined to discuss it at length.   On the other hand, if one            accepts  Holland's deposition testimony, there were obviously            prior incidents and some  ongoing tension between Holland and            the police.  In addition, Holland's name had  been circulated            within  the police department,  although that  standing alone            would  not  be wrongful.   See  Paul v.  Davis, 424  U.S. 693                                       ___  ____     _____            (1976); United States v. Egemonye, 62 F.3d 425, 428 (1st Cir.                    _____________    ________            1995).                 But  even  if assuming  that  a  jury  might think  that            Holland had  been harassed in the  past, we do not  see how a            reasonable jury could decide  that this was the cause  of his            arrest  in this instance.   Such a charge  is contradicted by            Holland's  own precise version of what the police said at the            arrest.   That  version indicates  that the  police officers'                                         -14-                                         -14-            immediate reasons for  the arrest  were, at  worst, a  belief            that  Holland was  a suspect  in  the bank  robbery, possibly            aggravated  by  his  refusal  to cooperate  or  disclose  his            whereabouts at the time.                 We  must say in candor that Holland would have an uphill            road  to climb  even if  he had  plausibly claimed  that some            general  police  animosity lay  behind  this  arrest.   Given            Whren,  any plaintiff is  going to  have difficulty  in using            _____            subjective  motive to  attack  an arrest  which is  otherwise            objectively justified by probable  cause.  But the variations            in  facts, and certain extreme possibilities, caution against            deciding too much in the abstract.                 3.   The  claim  of  municipal  liability in  this  case            depended  on  Holland's  claim  that  the  officers  violated            Holland's constitutional rights by arresting him as a part of            their campaign  of harassment.   Holland sought  to implicate            the  city, under Monell v. New York City Department of Social                             ______    __________________________________            Services, 436  U.S. 658,  694 (1978),  by  charging that  the            ________            harassment grew  out of an officially  established program of            targeting suspects, including the circulation  of information            about them.                  Whatever  "custom  or   policy"  the   city  may   have            maintained   toward  individuals   that  the   police  deemed            suspicious, Holland  cannot show that  it was "the  cause of,            and moving force behind," his arrest  in this case.  Foley v.                                                                 _____                                         -15-                                         -15-            City of Lowell, 948 F.2d 10, 14 (1st Cir. 1991).  Further, we            ______________            have  concluded that  the  arrest was  itself lawful  because            probable cause  existed and Holland has  offered no supported            basis for overcoming Whren.  Thus, the claim against the city                                 _____            was properly dismissed.                 Affirmed.                 ________                                         -16-                                         -16-
