United States Court of Appeals
For the First Circuit
No. 08-1582
RALPH HOLDER,
Plaintiff, Appellant,
v.
TOWN OF SANDOWN, J. SCOTT CURRIER,
JASON R. MORROW, and DEREK FEATHER,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella, and Ripple,* Circuit Judges.
Sven D. Wiberg and Wiberg Law Office, PLLC on brief for
appellant.
Brian J.S. Cullen and CullenCollimore, PLLC on brief for
appellees.
October 29, 2009
*
Of the Seventh Circuit, sitting by designation.
RIPPLE, Circuit Judge. After he was arrested for the
simple assault of his estranged wife, Ralph Holder brought this §
1983 action against the Town of Sandown, one Sandown police officer
and the Sandown Chief of Police. In his complaint, Mr. Holder
alleged, in addition to other claims not relevant to this appeal,
that the officer had lacked probable cause to effect the arrest and
therefore had violated his rights under the Fourth Amendment to the
Constitution of the United States, as made applicable to the states
through the Fourteenth Amendment. In due course, the defendants
moved for summary judgment and, after a hearing, the district court
granted the motion. Mr. Holder appeals, contending that the
district court erred in concluding that the officer had probable
cause for the arrest. For the reasons set forth in this opinion,
we affirm the judgment of the district court.
I. BACKGROUND
A.
Because this case is before us on an appeal from the
grant of summary judgment, we must take the facts in the light most
favorable to the non-moving party, Mr. Holder, and must draw all
reasonable inferences in his favor. Crawford v. Metro. Gov’t of
Nashville & Davidson County, Tenn., ___ U.S.___, 129 S. Ct. 846,
849 n.1 (2009); Taylor v. American Chemistry Council, 576 F.3d 16,
21 (1st Cir. 2009).
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On October 4, 2003, Ralph Holder attended his son’s
soccer game. His estranged wife, Maria, also was in attendance.
When it began to rain, Mr. Holder approached his wife and asked her
if she had a long-sleeved shirt for their son. When told that she
did not, he asked if she could make sure that she had one next
time. At this point, Ms. Holder yelled at Mr. Holder that he
needed to “keep [his] black mouth shut,” R.10, Att. 5 at 1, and
unexpectedly bumped him. Mr. Holder “instinctively” pushed her
away. Id. Ms. Holder challenged him to a fight and said that he
needed “to keep [his] hands off [her]” and called him a “black
bastard.” R.20 ¶ 9; R.10, Att. 5 at 2. She then called the
police.
Officer Jason Morrow was the first to arrive on the
scene, and he spoke with Ms. Holder. She identified Mr. Holder and
told the officer that he pushed her. Officer Morrow then went over
and talked to Mr. Holder. While this discussion was taking place,
Officer Derek Feather arrived.
Mr. Holder told Officer Morrow that Ms. Holder had
initiated a verbal confrontation that had escalated to the point
where she made contact with him before he pushed her back.1 He
1
Mr. Holder’s statement and affidavit do not establish with
perfect clarity that he admitted to Officer Morrow that he had
pushed Ms. Holder, and the record does not contain an affidavit
from Officer Morrow. However, at the summary judgment hearing, Mr.
Holder’s counsel conceded that Mr. Holder had told Officer Morrow
that he pushed Ms. Holder after she pushed him.
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also informed the officers that his estranged wife’s true objective
was to obtain a restraining order to keep him from having contact
with his son. Mr. Holder also told them that he and his estranged
wife were involved in a bitter and protracted divorce and child
custody battle, and he urged the officers to speak with nearby
witnesses.
Mr. Holder was arrested and charged with simple assault.2
The determination of probable cause was made by Officer Morrow;
Officer Feather merely assisted with the arrest. That assistance
included providing his handcuffs for use in the arrest.
After the arrest, Officer Feather spoke with Ms. Holder
and three witnesses. He received the impression that the witnesses
did not want to get involved, but one of them did say that Ms.
Holder had been verbally aggressive to Mr. Holder and, in the view
2
New Hampshire defines simple assault as follows:
631:2-a Simple Assault.
I. A person is guilty of simple assault if he:
(a) Purposely or knowingly causes bodily injury or
unprivileged physical contact to another; or
(b) Recklessly causes bodily injury to another; or
(c) Negligently causes bodily injury to another by
means of a deadly weapon.
II. Simple assault is a misdemeanor unless committed
in a fight entered into by mutual consent, in which
case it is a violation.
See also In re Nathan L., 776 A.2d 1277, 1282 (N.H. 2001).
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of the witness, had precipitated the dispute. The other two
witnesses seemed to agree. However, the witness who spoke with
Officer Feather based his opinion only on what he had heard; he had
not seen anything.
The case against Mr. Holder eventually was dismissed.
B.
In his complaint, Mr. Holder alleged, in addition to
several supplemental state law claims, that the officers had lacked
probable cause to effect the arrest, that the officers had
discriminated against him on the basis of race and gender and that
the officers had violated his due process rights by not
interviewing witnesses and by not allowing him to conduct his own
investigation.3 The complaint named as defendants the Town of
Sandown, Sandown’s then-Chief of Police, J. Scott Currier, Officer
Morrow and Officer Feather. By the time Mr. Holder brought this
action, however, Officer Morrow had left the Sandown Police
Department; he never was served and therefore never became a
defendant in this action.
The district court granted summary judgment for the
defendants on the Fourth Amendment claim. The district court held
3
Mr. Holder’s complaint made reference to the Sixth
Amendment right to compulsory process and notice about the nature
and cause of the accusation against him, R.1 at 18, but, when asked
by the district court to clarify the bases of his federal claims,
Mr. Holder’s counsel made no reference to the Sixth Amendment.
R.29 at 2-5. In any case, such a claim is not before us in this
appeal.
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that, as a matter of law, Mr. Holder’s constitutional right to be
free from an unreasonable seizure had not been violated. With
respect to Officer Feather, moreover, the court determined that,
because he had played no role in effecting the arrest, there was no
basis for any liability. With respect to the Town, the court
determined that there was no evidence of a policy, custom or
inadequate hiring and training practices that could constitute the
basis of liability. Similarly, with respect to the Chief of
Police, the court held there was no evidence that he had
encouraged, condoned or acquiesced in any illegal arrest. Failure
to take action against the officers after the fact was not
sufficient to expose him to liability.
The court also granted summary judgment on the remaining
federal claims and dismissed the state claims without prejudice.
Mr. Holder now appeals the district court’s ruling with respect to
whether there was probable cause to effect his arrest.
II. DISCUSSION
A.
An arrest is lawful if the officer has “probable cause.”
Tennessee v. Garner, 471 U.S. 1, 7 (1985). A police officer has
probable cause when, at the time of the arrest, the “facts and
circumstances within the officer’s knowledge . . . are sufficient
to warrant a prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect has
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committed, is committing, or is about to commit an offense.”
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); see also Beck v.
Ohio, 379 U.S. 89, 91 (1964); Acosta v. Ames Dep’t Stores, 386 F.3d
5, 9 (1st Cir. 2004); Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir.
1992); United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.
1987). In determining whether the officer had probable cause, we
must view the circumstances from the perspective of a reasonable
person in the position of the officer. Roche v. John Hancock Mut.
Life Ins. Co., 81 F.3d 249, 255 (1st Cir. 1996) (citing Illinois v.
Gates, 462 U.S. 213, 231 (1983)). Probable cause requires only a
probability that the defendant committed the crime. See Hill v.
California, 401 U.S. 797, 804 (1971) (“But sufficient probability,
not certainty, is the touchstone of reasonableness under the Fourth
Amendment and on the record before us the officers’ mistake was
understandable and the arrest a reasonable response to the
situation facing them at the time.”); see also Wilson v. Russo, 212
F.3d 781, 789 (3d Cir. 2000) (“Probable cause [to arrest] exists if
there is a fair probability that the person committed the crime at
issue.” (internal quotation marks and citation omitted)). “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.” Acosta, 386 F.3d
at 11 (internal quotation marks and citation omitted).
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The question of probable cause, like the question of
reasonable suspicion, is an objective inquiry. See Bolton v.
Taylor, 367 F.3d 5, 7 (1st Cir. 2004). The “actual motive or
thought process of the officer is not plumbed.” Id. (citing Whren
v. United States, 517 U.S. 806, 813 (1996)). The only relevant
facts are those known to the officer. When these facts are in
reasonable dispute, the fact-finder must resolve the dispute.
Bolton, 367 F.3d at 7. However, when the underlying facts claimed
to support probable cause are not in dispute, whether those “raw
facts” constitute probable cause is an issue of law that we must
determine de novo. Id. at 8 (citing Ornelas v. United States, 517
U.S. 690, 696-97 (1996)).
Mr. Holder claims that “there are multitudinous material
factual disputes.” Appellant’s Br. at 11. He does not, however,
further explain the disputes. His lack of specificity on this
point could well constitute waiver. See King v. Town of Hanover,
116 F.3d 965, 970 (1st Cir. 1997) (“It is an established appellate
rule that issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived . . .
. It is not enough merely to mention a possible argument in the
most skeletal way[.]” (ellipsis in original) (internal quotation
marks and citation omitted)). Here, we need not rely on this
ground, however, because the record does not reflect a genuine
factual dispute with respect to the basic material facts known to
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Officer Morrow. These “raw facts,” see Bolton, 367 F.3d at 8, gave
the officers probable cause to arrest Mr. Holder. Our task, as
well as the task of the district court, admittedly would have been
easier if Officer Morrow’s police report and affidavit were a part
of the record. Nevertheless, reading Mr. Holder’s affidavit along
with his voluntary statement and his counsel’s eventual acceptance
of the district court’s interpretation of the facts, we must
conclude that Mr. Holder told Officer Morrow at the scene that he
had pushed Ms. Holder after she both verbally and physically
provoked him. That fact gave Officer Morrow sufficient grounds for
believing that a simple assault had occurred. Indeed, even if Mr.
Holder’s counsel had not admitted that his client actually told the
officer that he had pushed his estranged wife, the facts known to
the officer would support probable cause. Ms. Holder had told the
officer that Mr. Holder had pushed her, and, as we noted in Acosta,
“information furnished by a victim is generally considered
sufficiently reliable to support a finding of probable cause.” 386
F.3d at 10 (citing Forest v. Pawtucket Police Dep’t, 377 F.3d 52,
57 (1st Cir. 2004)).
B.
Mr. Holder further contends, however, that he
instinctively shoved his wife backward only in response to her
initial assault against him. Accordingly, he contends that he had
a viable defense against her allegation. Mr. Holder submits that,
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when an officer has knowledge of a “bad relationship” between the
person under suspicion and a witness to the alleged crime, that
witness’s credibility must be considered questionable, and,
consequently, the officer has a duty to investigate further before
making an arrest.
In reliance on Supreme Court precedent, we already have
rejected the proposition that a police officer has a standing
obligation to investigate potential defenses or resolve conflicting
accounts prior to making an arrest. Id. at 11 (citing Baker v.
McCollan, 443 U.S. 137, 145-46 (1979)). “[W]e have made it clear
that an officer normally may terminate [his] investigation when
[he] accumulates facts that demonstrate sufficient probable cause.”
Id.; see Forest, 377 F.3d at 57 (noting that we have “affirmed that
police officers can justifiably rely upon the credible complaint by
a victim to support a finding of probable cause”); see also Palhava
de Varella-Cid v. Boston Five Cents Sav. Bank, 787 F.2d 676, 680-81
(1st Cir. 1986).
We also have held that the general rule that an officer
need not resolve possible defenses or conflicting accounts is
qualified only in limited circumstances. In Acosta, we stated:
[W]e . . . have disclaimed any unflagging duty on
the part of law enforcement officers to investigate
fully before making a probable cause determination.
While we have recognized that such a duty may arise
in highly idiosyncratic circumstances, we have made
it clear that an officer normally may terminate
[his] investigation when he accumulates facts that
demonstrate sufficient probable cause. . . . The
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rule, then, applicable in the wide mine-run of
cases, is that once a law enforcement officer
unearths sufficient facts to establish probable
cause, he has no constitutional duty either to
explore the possibility that exculpatory evidence
may exist or to conduct any further investigation
in hope of finding such evidence.
Acosta, 386 F.3d at 11 (citations omitted). Briefly stated, there
are times when the facts made known to the officer, by the
complainant or otherwise, combined with the circumstances under
which those facts were made known, would cause a reasonable officer
to pause before concluding that there is a fair probability that
the accused individual had committed a crime. In Acosta, we gave
as an example the situation that confronted us in B.C.R. Transport
Co. v. Fontaine, 727 F.2d 7 (1st Cir. 1984). In that case, police
officers effected an arrest by relying upon an incoherent
individual’s allegations without further investigation. See id. at
10.
Here, there was no reason, inherent in the situation, for
Officer Morrow to believe that Ms. Holder had lied about being
pushed by Mr. Holder. In many simple assault situations, there are
bound to be accusations and recriminations based either on the
immediate circumstances or the parties’ long-term relationship. To
say that all such situations require an exception to the general
rule would amount to an evisceration of the rule. Under the
circumstances here, Officer Morrow did not fail “to investigate
fundamental evidence at the crime scene.” Romero v. Fay, 45 F.3d
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1472, 1477 (10th Cir. 1995). Further investigation was not likely
to clarify, in any definitive way, the basic divergence in
perspective between Ralph and Maria Holder. The officer was not
obligated to make a definitive credibility judgment about the
relative accuracy of the accounts of the protagonists. The fact
that Mr. Holder and Ms. Holder were not on good terms and had given
somewhat differing accounts of the encounter did not render
unreasonable Officer Morrow’s conclusion that it was fairly
probable that Mr. Holder had committed a simple assault.4
C.
As we have noted, Mr. Holder was charged with simple
assault under New Hampshire statute 631:2-a. He also contends that
another New Hampshire statute imposed a heightened standard of
probable cause on the officers. That statute reads in pertinent
part:
4
Mr. Holder’s reliance on several cases from other circuits
is unavailing. In Hebron v. Touhy, 18 F.3d 421 (7th Cir. 1994),
the Seventh Circuit said that police could not rely solely on
allegations of tenants that they had been deprived of water by the
landlord because the officers knew at the time that the tenants
were being evicted by the landlord. Under those circumstances,
said the court, the officers should have, and did, investigate
further. Id. 422-23. Notably, the Seventh Circuit also has made
it clear that the officer need not go beyond what he already knows
to decide whether an affirmative defense applies. Hodgkins ex rel.
Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004). As we
have noted in the text, here the officers had no specific reason to
doubt the word of Ms. Holder. Romero v. Fay, 45 F.3d 1472, 1476-77
(10th Cir. 1995), emphasizes the need for a reasonable assessment
of all the circumstances by the arresting officer but does not
address the particular circumstances facing Officer Morrow in this
case.
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[A]n arrest for abuse may be made without a warrant
upon probable cause, whether or not the abuse is
committed in the presence of the peace officer.
When the peace officer has probable cause to
believe that the persons are committing or have
committed abuse against each other, the officer
need not arrest both persons, but should arrest the
person the officer believes to be the primary
physical aggressor. In determining who is the
primary physical aggressor, an officer shall
consider the intent of this chapter to protect the
victims of domestic violence, the relative degree
of injury or fear inflicted on the persons
involved, and any history of domestic abuse between
these persons if that history can reasonably be
obtained by the officer.
N.H. Rev. Stat. Ann. § 173-B:10, II. Mr. Holder contends that the
officers ignored state law that required them to identify the
instigator and aggressor. He does not, however, provide any
additional argument on this point, and we might well be justified
in deeming the matter waived for failure to develop a reasoned
argument. Nevertheless, because the defendants have addressed the
argument, we shall give Mr. Holder the benefit of the doubt and
address the merits of his contention.
The Supreme Court has made it clear that, even if we were
to consider this state-imposed requirement as part of a state-
imposed probable cause inquiry, we should not regard it as part of
the federal requirement for probable cause. Rather, it is a
distinct state-imposed requirement that simply is not cognizable in
an action to vindicate the federal right against unreasonable
seizures protected by the Fourth Amendment. In Virginia v. Moore,
___ U.S. ___, 128 S. Ct. 1598, 1606 (2008), the Supreme Court held
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that, as long as the arresting officer has probable cause, the
Fourth Amendment is not violated when a defendant is arrested for
a state offense for which state law does not permit arrest for its
violation. The Court reasoned that “[a] State is free to prefer
one search-and-seizure policy among the range of constitutionally
permissible options, but its choice of a more restrictive option
does not render the less restrictive ones unreasonable, and hence
unconstitutional.” Id. The Supreme Court further explained,
“[o]ur decisions counsel against changing this [Fourth Amendment]
calculus when a State chooses to protect privacy beyond the level
that the Fourth Amendment requires. We have treated additional
protections exclusively as matters of state law.” Id. at 1604. In
its decision, the Court relied upon a series of cases holding that
state law regulations on search and seizure need not be met to
fulfill the mandate of the Fourth Amendment. See id. at 1604-05.
The Court concluded that “the approach of [its] prior cases is
correct, because an arrest based on probable cause serves interests
that have long been seen as sufficient to justify the seizure.”
Id. at 1605.5
We have relied on Moore to hold that when a prisoner’s
conversation with his attorney was recorded in violation of a state
5
The Supreme Court also observed that “linking Fourth
Amendment protections to state law would cause them to ‘vary from
place to place and from time to time.’” Virginia v. Moore, ___
U.S. ___, 128 S. Ct. 1598, 1607 (2008) (quoting Whren v. United
States, 517 U.S. 806, 815 (1996)).
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regulation, that violation of state law did not operate to nullify,
for purposes of Fourth Amendment analysis, the client’s consent to
the recording. United States v. Novak, 531 F.3d 99, 102 (1st Cir.
2008). Our colleagues in other circuits have reached similar
conclusions. In Walker v. Prince George’s County, Maryland, 575
F.3d 426, 430 (4th Cir. 2009), the Fourth Circuit, relying on
Moore, held that, even if a county ordinance required a police
officer to verify that the owner of a wolf lacked a license before
seizing the wolf, breach of that requirement would not establish a
violation of the Fourth Amendment. In United States v. Brobst, 558
F.3d 982, 989-90 (9th Cir. 2009), the Ninth Circuit relied on Moore
to reject an argument that a seizure and arrest was constitutional
only if it complied with the protections from search and seizure
afforded by Montana law. These cases demonstrate that Moore
applies not only to cases where certain crimes are explicitly made
unarrestable offenses, but also to cases where state procedural
requirements are not followed.6 We therefore conclude that the New
Hampshire statute is irrelevant to the Fourth Amendment analysis
that we must undertake to resolve the present claim.
6
See also United States v. Humbert, Nos. 05-1492, 07-3368,
2009 WL 1911007, at *3 (3d Cir. July 2, 2009) (noting that, even if
defendant’s DNA were obtained in violation of Pennsylvania law,
such conduct would not constitute a Fourth Amendment violation),
petition for cert. filed (U.S. Sept. 29, 2009) (No. 09-6824).
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III. CONCLUSION
From the foregoing analysis, we must conclude that, at
the time he arrested Mr. Holder, the officer had sufficient
information to conclude that the state offense of simple assault
had taken place. Consequently, there was no violation of the
Fourth Amendment, and the district court properly granted summary
judgment on that claim. Moreover, because there was no Fourth
Amendment violation, we need not discuss independently the issues
of qualified immunity, supervisory liability or municipal
liability.
For these reasons, the judgment of the district court is
affirmed.
Affirmed.
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