Acosta v. Ames Department Stores, Inc.

United States Court of Appeals
For the First Circuit

No. 04-1016

CASILDA ACOSTA, ETC., ET AL.,

Plaintiffs, Appellants,

v.

AMES DEPARTMENT STORES, INC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Cyr, Senior Circuit Judges.

Bruce P. Gladstein on brief for appellants.
Marc DeSisto, Kathleen M. Daniels and DeSisto Law on brief for
appellees.

September 22, 2004
 SELYA, Circuit Judge. Plaintiff-appellant Casilda Acosta

invites us to vacate a summary judgment order terminating her suit

for false arrest under, inter alia, 42 U.S.C. § 1983.1 Discerning

no error in the district court's disposition of the matter, we

decline Acosta's invitation.

The facts are uncomplicated. Glenn Powers worked as a

store detective for Ames Department Stores, Inc. (Ames). On

October 18, 1999, he called the Middletown, Rhode Island, police

department to report a shoplifting at a local Ames emporium.

Officer Kelly Mitchell responded to the call and Powers informed

her that the appellant, her sons, and a group of other persons had

entered the shop that evening. He watched the appellant take two

jackets, emblazoned with the logo of the New England Patriots, from

a rack and outfit her sons with them. He then surveilled the trio

as they walked around the store and proceeded through the checkout

line without making any attempt to pay for the jackets.

Powers stopped the suspected shoplifters as soon as they

left the premises. When he confronted them with the alleged

larceny, one of the boys admitted that he had donned the jacket in

the store.

1
Casilda Acosta's sons, Kenny and Kevin, are also parties.
Their claims are largely derivative, however, and for ease in
reference we treat Casilda as if she were the sole plaintiff and
appellant. Our opinion is, of course, binding on all three.

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 Once she had interviewed Powers, Officer Mitchell talked

with the appellant. She found communication difficult because of

a language barrier; Mitchell spoke no Spanish and the appellant

lacked fluency in English. Nonetheless, Mitchell was able to glean

the essence of the appellant's claim: that she had purchased the

jackets on an earlier shopping trip. To bolster that claim, the

appellant gave Mitchell a layaway receipt dated October 5, 1999.

This receipt indicated that ten items had been rung up (including

two labeled "PATRIOTS OUT" at a sale price of $22.41 each); that

$49.94 had been paid toward a previous balance; and that the

layaway was complete. The receipt did not indicate what "PATRIOTS

OUT" meant.

Officer Mitchell then inspected the jackets. She

observed a wet spot on one of them, consistent with what might

appear if soda or juice had just been spilled on it. She also

found a used tissue in a jacket pocket. At that point, Mitchell

took the appellant into custody and charged her with shoplifting.

Although at least one other officer had by then responded to the

scene, the police did not converse with any other Ames personnel

before effectuating the arrest. By the same token, they did not

interview other customers (not even those persons who had

originally accompanied the appellant to the store).

For reasons that need not concern us, the criminal

charges were subsequently dropped. The incident, however, was not

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forgotten. The appellant brought suit in a Rhode Island state

court alleging seventeen different causes of action against a

myriad of defendants. The complaint, as amended, named Ames,

Powers, the Town of Middletown, the Middletown police department,

the town's finance director, and several police officers (among

them, Officer Mitchell) as defendants.2 The municipal defendants

removed the case to the United States District Court for the

District of Rhode Island. See 28 U.S.C. §§ 1331, 1441(b).

In due course, the municipal defendants moved for summary

judgment. See Fed. R. Civ. P. 56. The district court found

probable cause for the arrest and, accordingly, granted the motion.

This appeal ensued.

The summary judgment device enables a court "to pierce

the boilerplate of the pleadings and assay the parties' proof in

order to determine whether trial is actually required." Wynne v.

Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992). That

device functions successfully when "the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment

2
Ames and Powers made only cameo appearances — Ames went into
bankruptcy and Powers was never served — so we eschew any further
reference to them, instead treating the municipal defendants as if
they were the sole targets of the suit. See, e.g., Sunview Condo.
Ass'n v. Flexel Int'l, Ltd., 116 F.3d 962, 963 n.1 (1st Cir. 1997)
(taking a similar approach in analogous circumstances).

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as a matter of law." Fed. R. Civ. P. 56(c). Faced with a properly

documented summary judgment motion, the nonmovant can thwart the

motion only by showing through materials of evidentiary quality

that a genuine dispute exists about some material fact. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Medina-Munoz

v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). This

evidence "must have substance in the sense that it limns differing

versions of the truth which a factfinder must resolve at an ensuing

trial." Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st

Cir. 1989).

In assessing such a proffer, an inquiring court must

resolve all evidentiary conflicts and draw all reasonable

inferences in the nonmovant's favor. Id. If the proffer, viewed

through this prism, "is merely colorable, or is not significantly

probative, summary judgment may be granted." Anderson, 477 U.S. at

249-50 (internal citations omitted). In an ensuing appeal, we

afford plenary review, Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822

(1st Cir. 1991); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st

Cir. 1990), utilizing the same criteria as the trial court, Perez

v. Volvo Car Corp., 247 F.3d 303, 310 (1st Cir. 2001); Werme v.

Merrill, 84 F.3d 479, 482 (1st Cir. 1996).

We turn now from the general to the particular. Before

us, the appellant mounts a four-pronged attack on the district

court's probable cause determination. She contends (i) that the

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existence vel non of probable cause is always for the jury (and,

thus, not susceptible to summary judgment); (ii) that genuine

issues of material fact preclude judicial resolution of the

probable cause question here; (iii) that even absent such a

dispute, the facts of record do not support the lower court's

probable cause determination; and (iv) that, in all events, the

determination was infirm because further investigation would have

dispelled the basis for it. We discuss these contentions

sequentially.

With respect to her first asseveration, the appellant

relies upon our decision in B.C.R. Transport Co. v. Fontaine, 727

F.2d 7 (1st Cir. 1984). That reliance is mislaid. In B.C.R.

Transport, the defendant argued that probable cause necessarily

existed because a warrant, based upon information supplied by an

alleged victim, had been obtained. Id. at 9-10. We rejected that

broad proposition, describing the probable cause inquiry as

situation-specific. See id. at 10 (explaining that "whether or not

probable cause exists . . . invariably depends on the particular

facts and circumstances of [each] case"). We went on to note that

the alleged victim was disoriented and ranting, and, accordingly,

the arresting officers needed to engage in further inquiry before

relying on that account to find probable cause. See id. at 10-11.

The appellant tries to ride this horse well past the

boundary that we staked out in B.C.R. Transport. Although we ruled

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there that the issue of probable cause was for the jury, that

ruling was not, as the appellant suggests, intended to have

universal applicability. The outcome in B.C.R. Transport

represented the exception, not the rule. More relevant here is our

recent observation that "it is pointless to submit . . . [a]

probable cause question[] to the jury at all unless the facts are

disputed." Bolton v. Taylor, 367 F.3d 5, 8 n.2 (1st Cir. 2004);

see also Ornelas v. United States, 517 U.S. 690, 696 (1996)

(explaining that when the relevant facts leading to the officer's

involvement are established, probable cause is a "mixed question of

law and fact" suitable for determination by the court); Bell v.

Irwin, 321 F.3d 637, 640 (7th Cir.) (holding that the existence of

probable cause is ordinarily for the court, not for the jury),

cert. denied, 124 S. Ct. 84 (2003).

In the case at hand, the material facts — what the police

knew at the moment of the arrest, the source of their knowledge,

and the leads that they pursued or eschewed — are not in dispute.

When that is so, the existence vel non of probable cause ordinarily

is amenable to summary judgment. See, e.g., Roche v. John Hancock

Mut. Life Ins. Co., 81 F.3d 249, 254-56 (1st Cir. 1996) (affirming

the entry of summary judgment in such a situation). The question,

then, is whether brevis disposition was appropriate on the facts of

this case.

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 The appellant's second argument begins the dialogue on

that question. She hangs her hat primarily on the layaway receipt.

This need not detain us. The dispute over the meaning of the

layaway receipt is, at bottom, merely whether the receipt fairly

indicated to a reasonable officer that the appellant purchased two

Patriots jackets on October 5. Even were we to resolve this

question in the appellant's favor, the fact that she bought two

jackets on October 5 would not change the outcome of the probable

cause inquiry.

There are at least two conflicting inferences that could

be drawn from such a fact. One possibility is that the appellant

bought the coats in question and did not steal them. Another is

that she bought two other coats on October 5, and was using the

receipt as a cover for a theft on October 18. To resolve the issue

of probable cause, it does not matter which inference is correct.

It is sufficient that a reasonable officer in possession of this

information might nonetheless find it likely that the store

detective's eyewitness account was true and that the appellant had

committed a crime. See United States v. Figueroa, 818 F.2d 1020,

1023-24 (1st Cir. 1987). In light of Powers's insistence that he

personally witnessed the theft, the exculpatory value of the

receipt is simply insufficient for us to conclude that Mitchell

could not reasonably have found probable cause.

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 The appellant's third line of attack directly challenges

the adequacy of the evidence on which the district court's probable

cause determination was based. That challenge requires us to limn

the analytic framework for probable cause determinations and then

to apply that framework.

When there is probable cause for an arrest, the Fourth

Amendment's prohibition against unreasonable searches and seizures

is not offended. Atwater v. Lago Vista, 532 U.S. 318, 354 (2001);

Roche, 81 F.3d at 254. Probable cause for an arrest exists when

the arresting officer, acting upon apparently trustworthy

information, reasonably concludes that a crime has been (or is

about to be) committed and that the putative arrestee likely is one

of the perpetrators. See Beck v. Ohio, 379 U.S. 89, 91 (1964);

Figueroa, 818 F.2d at 1023. Courts use an objective standard when

determining the existence of probable cause. Valente v. Wallace,

332 F.3d 30, 32 (1st Cir. 2003); Roche, 81 F.3d at 254. The focus

is not on certitude, but, rather, on the likelihood of criminal

activity. See Illinois v. Gates, 462 U.S. 213, 235 (1983);

Spinelli v. United States, 393 U.S. 410, 419 (1969); United States

v. Winchenbach, 197 F.3d 548, 555 (1st Cir. 1999). Finally, courts

must apply these principles fluidly to the totality of the extant

circumstances. Gates, 462 U.S. at 232 & n.7; Winchenbach, 197 F.3d

at 555.

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 Here, the existence of probable cause depends, in the

first instance, upon the cogency of the account given by the store

detective (Powers). Taken at face value, Powers's tale certainly

gave Officer Mitchell reason to believe that a crime had been

committed and that the appellant had committed it. The appellant

nonetheless argues that Mitchell should have deemed Powers's

statements unreliable (or, at least, suspect) because she had never

met him before and, thus, could not accurately assess his

credibility. That sets the bar too high.

Victims' complaints are a prime source of investigatory

information for police officers. In the absence of circumstances

that would raise a reasonably prudent officer's antennae, there is

no requirement that the officer corroborate every aspect of every

complaint with extrinsic information. The uncorroborated testimony

of a victim or other percipient witness, standing alone, ordinarily

can support a finding of probable cause. See, e.g., Forest v.

Pawtucket Police Dep't, ___ F.3d ___, ___ (1st Cir. 2004) [No. 03-

2652, slip op. at 10] (stating that information furnished by a

victim is generally considered sufficiently reliable to support a

finding of probable cause); B.C.R. Transport, 727 F.2d at 10

(same). Although the victim here is a corporation communicating

through its agent, the agent held himself out to be an eyewitness

to the pilferage and rendered a coherent, facially plausible

account. Consequently, we see no reason to treat Ames's complaint

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of a crime, related through Powers, differently from any other

complaint by a victim.

This conclusion is reinforced by Powers's status as a

store detective. At least one respected court has gone so far as

to recognize that, in the retail context, private security officers

are inherently reliable. See Gramemos v. Jewel Cos., 797 F.2d 432,

439 (7th Cir. 1986) (noting that several disincentives stemming

from false crime reports collectively provide reason to infer that

store detectives are reliable). While we hesitate to indulge in

sweeping generalizations, we think that in this case Officer

Mitchell had every reason to believe that the store's security

officer was being truthful.

In an effort to undermine the credibility of Powers's

statements, the appellant points to three facts: the layaway

receipt, the absence of any evidence of empty coat hangers or price

tags for the jackets, and the "used" appearance of one of the

jackets. In our estimation, none of these facts is telling. As

noted above, the layaway receipt is at best equivocal. As for the

hangers and price tags, Mitchell never thought to ask for them —

and it is therefore speculative whether or not they could have been

found. And, finally, the appearance of the spotted jacket actually

may cut the other way: the fact that the spots were wet

contradicts the appellant's suggestion that they were old. The

used kleenex in the pocket tells us nothing.

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 To cinch matters, the totality of the circumstances

includes far more than these isolated tidbits. Officer Mitchell

spoke first-hand with the complaining witness, who plausibly

claimed to have observed the entire incident. Mitchell had no

reason to doubt that claim. She then was told that one of the

jacket-wearers had admitted to having donned the jacket inside the

store. Mitchell proceeded to speak to the appellant and got the

gist of her story: that she previously had purchased the

merchandise. But the layaway receipt that she proffered was

ambiguous and gave the officer no reason to question Powers's

veracity: he was a percipient witness whose job responsibilities

involved the very sort of observations that he was undertaking.

Hence, there was no reason for Mitchell not to rely on his

eyewitness version of events. When an arresting officer has the

benefit of an apparently credible eyewitness account, the amount of

arguably exculpatory evidence must be substantial before further

investigation can be required as a constitutional matter. The

evidence here, if exculpatory at all, was far from substantial.

The test for probable cause "does not require the

officers' conclusion to be ironclad, or even highly probable.

Their conclusion that probable cause exists need only be

reasonable." Winchenbach, 197 F.3d at 555-56. In this case, the

officer passed that test with flying colors.

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 The appellant's last argument depends on a three-part

algorithm. She asserts that even if the investigation that Officer

Mitchell actually conducted created an aura of probable cause, the

district court's determination cannot stand because (i) the police

had a responsibility to continue investigating the matter; (ii)

they failed to do so; and (iii) had they not foregone this duty,

they would have dispelled the aura and learned that there was no

probable cause for an arrest. In particular, the appellant posits

that the police should have interviewed the other Spanish-speaking

persons who had accompanied her to the store, spoken with the store

manager, probed further into the significance (if any) of the

layaway receipt, and hunted for the hangers and price tags.

Probable cause determinations are, virtually by

definition, preliminary and tentative. See, e.g., Barber v. Page,

390 U.S. 719, 725 (1968). Not surprisingly, then, the Supreme

Court has flatly rejected the idea that the police have a standing

obligation to investigate potential defenses before finding

probable cause. See Baker v. McCollan, 443 U.S. 137, 145-46

(1979). Following this lead, we too have disclaimed any unflagging

duty on the part of law enforcement officers to investigate fully

before making a probable cause determination. See, e.g., Franco-de

Jerez v. Burgos, 876 F.2d 1038, 1042 (1st Cir. 1989). While we

have recognized that such a duty may arise in highly idiosyncratic

circumstances, see, e.g., B.C.R. Transport, 727 F.2d at 10-11, we

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have made it clear that an officer normally may terminate her

investigation when she accumulates facts that demonstrate

sufficient probable cause. See, e.g., Forest, ___ F.3d at ___

[slip op. at 12]; Palhava de Varella-Cid v. Boston Five Cents

Savings Bank, 787 F.2d 676, 680-81 (1st Cir. 1986). The case law

in other circuits is to the same effect. See, e.g., Hodgkins v.

Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004); Brodnicki v. City of

Omaha, 75 F.3d 1261, 1264 (8th Cir. 1996).

The rule, then, applicable in the wide mine-run of cases,

is that once a law enforcement officer unearths sufficient facts to

establish probable cause, she has no constitutional duty either to

explore the possibility that exculpatory evidence may exist or to

conduct any further investigation in the hope of finding such

evidence. Because this case is well within the mine-run, we reject

the appellant's asseveration that the absence of a more complete

investigation somehow undercuts the district court's acknowledgment

of probable cause.

This disposes of the appellant's four-pronged attack on

the lower court's probable cause determination. Looking at the

totality of the circumstances known to the police at the time of

the instant arrest, we find no fault with the district court's

conclusion that probable cause existed.

Withal, our odyssey must continue. The court below went

on to rule that the absence of probable cause doomed all the

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appellant's claims. The appellant assigns error to the breadth of

this ukase.

This assignment of error requires us first to parse the

amended complaint. Eight of the counts are directed only at Ames

and Powers, and, thus, need not concern us. See supra note 2. The

remaining nine counts allege the following causes of action against

some or all of the municipal defendants: four counts based on 42

U.S.C. § 1983,3 one count based on false arrest, one count based on

general negligence, two counts charging inflicting of emotional

distress, and one count based on vicarious liability. The two main

section 1983 claims were premised on alleged Fourth Amendment

violations, and so the district court's disposition of those counts

was clearly correct. Given probable cause, there was no

constitutional violation — and without the deprivation of a

constitutional right, those claims cannot proceed. See Roche, 81

F.3d at 254. The false arrest count also fails because a necessary

element of that claim is an illegal arrest. See Mann v. Cannon,

731 F.2d 54, 62 (1st Cir. 1984) (construing Rhode Island law). In

this case, the existence of probable cause rendered the arrest

legal. By like token, in the absence of a false or

unconstitutional arrest, the two other section 1983 counts — both

of which are failure-to-train counts, see supra note 3 —

3
Two of these are "deliberate indifference" counts based on
alleged failures properly to train police officers.

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necessarily founder. See Evans v. Avery, 100 F.3d 1033, 1040 (1st

Cir. 1996) (holding that a municipality cannot be liable for

failure to train under § 1983 absent an underlying constitutional

violation by one of its police officers).

That leaves only a motley of state-law tort counts. A

general negligence count requires a plaintiff to show, at a bare

minimum, a legally cognizable duty and a breach of that duty. See

Mills v. State Sales, Inc., 824 A.2d 461, 467 (R.I. 2003); see also

Welsh Mfg., Div. of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d

436, 440-41 (R.I. 1984). Because the police acted reasonably in

making their probable cause determination and had no duty to

investigate further before arresting the appellant, see text supra,

the appellant has failed to establish the essential elements of her

general negligence claim.

The emotional distress counts fare no better. There has

been no demonstration of the "extreme and outrageous conduct"

necessary to prevail on a claim for intentional infliction of

emotional distress. Jalowy v. Friendly Home, Inc., 818 A.2d 698,

707 (R.I. 2003). There has been no showing of the physical

symptomatology necessary to support a claim of negligent infliction

of emotional distress. See Reilly v. United States, 547 A.2d 894,

899 (R.I. 1988). And as the substantive state-law counts topple,

so too does the count alleging vicarious liability. See Boland v.

Town of Tiverton, 670 A.2d 1245, 1248 (R.I. 1996).

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 We need go no further. While we do not minimize the

unfortunate nature of the appellant's experience, there is no

principled way on these facts to hold the municipal defendants

liable in damages. Consequently, the district court's entry of

summary judgment merits our approbation.

Affirmed.

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