08-1123-cv
Green v. Webster
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January
1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule
32.1.1. W hen citing a summary order in a document filed with this court, a party must cite either the Federal
Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must
serve a copy of it on any party not represented by counsel.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
3 the 7th day of January, two thousand ten.
4
5 PRESENT:
6
7 GUIDO CALABRESI,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judges,
10 EDWARD R. KORMAN,
11 District Judge.*
12
13
14
15 PAMELA GREEN,
16
17 Plaintiff-Appellant,
18
19 -v.- No. 08-1123-cv
20
21 EDWIN W. WEBSTER, JR., in his individual capacity,
22
23 Defendant-Appellee.
24
*
The Hon. Edward R. Korman, United States District Court for the Eastern District of
New York, sitting by designation.
1
1 DAVID SETH PUTTER, Montpelier, VT, for Plaintiff-Appellant.
2
3 JOSEPH A. FARNHAM (Kevin J. Coyle, of counsel), McNeil
4 Leddy & Sheahan, P.C., Burlington, VT, for Defendant-
5 Appellee.
6
7
8 Appeal from a judgment of the United States District Court for the District of Vermont
9 (Murtha, J.).
10 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED
11 that the judgment of the district court be AFFIRMED.
12 Plaintiff-Appellant Pamela Green (“Green”) appeals from a judgment of the United States
13 District Court for the District of Vermont (Murtha, J.) entered February 7, 2008 granting summary
14 judgment to Defendant-Appellee Officer Edwin W. Webster, Jr. (“Webster”) of the Stowe, Vermont
15 Police Department on Green’s § 1983 false arrest claim. Green’s lawsuit against Webster and
16 various other defendants arose from Green’s arrest while she was a guest at Topnotch Resort and Spa
17 in Stowe, Vermont, in February, 2005. After the other defendants settled the case, the district court
18 ruled that Green had failed to demonstrate that a material question of fact existed on the issue
19 whether Webster had probable cause to arrest Green for possession of cocaine at the time of her
20 arrest, even though subsequent events would demonstrate that the substance Green possessed was
21 not, in fact, cocaine. See Green v. Topnotch at Stowe, No. 1:06-CV-96, 2008 WL 345886, at *3-4
22 (D. Vt. Feb. 7, 2008). The district court also concluded that Webster was entitled to qualified
23 immunity. Id. We assume the parties’ familiarity with the factual and procedural background of the
24 case as well as the specification of the issues for review.
2
1 We review a district court’s grant of summary judgment de novo, construing all facts in favor
2 of the non-moving party. See, e.g., Caiozzo v. Koreman, 581 F.3d 63, 68 (2d Cir. 2009). Summary
3 judgment is appropriate upon a showing “that there is no genuine issue as to any material fact and
4 that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
5 The central issue on appeal is whether Webster had probable cause to arrest Green. A
6 plaintiff may not recover for false arrest when the arresting officer had probable cause. Singer v.
7 Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). Probable cause to arrest “exists when one
8 has knowledge of, or reasonably trustworthy information as to, facts and circumstances that are
9 sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being
10 committed by the person to be arrested.” Williams v. Town of Greenburgh, 535 F.3d 71, 79 (2d Cir.
11 2008) (quoting Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007)) (internal quotation marks
12 and alterations omitted). Our inquiry focuses on the “facts known to the arresting officer at the time
13 of the arrest.” Zellner, 494 F.3d at 369 (quoting Devenpeck v. Alford, 543 U.S. 146, 152 (2004))
14 (internal quotation mark omitted). “[A] mistake about relevant facts . . . does not undermine the
15 existence of probable cause.” Williams, 535 F.3d at 79.
16 In this case Webster had probable cause to arrest Green. It is undisputed that at the time of
17 Green’s arrest Webster and his two colleagues agreed that the white powder found in Green’s hotel
18 room field-tested positive for cocaine. A reasonably trustworthy field test that returns a “positive”
19 result for the presence of cocaine is a sufficient basis for probable cause. See, e.g., United States v.
20 Uricoechea-Casallas, 946 F.2d 162, 165-66 (1st Cir. 1991). Given this, to survive Webster’s
21 summary judgment motion Green had to demonstrate that a material question of fact existed as to
22 whether the field test’s result was “reasonably trustworthy information,” Williams, 535 F.3d at 79,
3
1 i.e., whether Webster had a basis for believing, at the time of Green’s arrest, that the “positive” field
2 test result was inaccurate or unreliable. Like the district court, we conclude that Green has not made
3 such a showing.
4 Webster had no basis for believing that the field test was performed improperly. It is
5 undisputed that Webster knew that Officer Christiensen, who performed the test, had field
6 experience with cocaine arrests, Pl’s Statement of Material Facts ¶ 20, and both officers testified that
7 they had experience doing field tests for drugs, id. ¶¶ 12, 20. Webster asserted that Christiensen
8 performed the field test on the white powder found in Green’s room according to the test’s
9 instructions, Def’s Statement of Facts ¶ 21; this assertion is confirmed by Christiensen’s testimony
10 that he “read the instructions as [he] was doing [the test] and did as the instructions indicated.”
11 Christiensen Dep. 13. Christiensen’s testimony also described the proper sequence of steps required
12 to perform the test correctly and the correct color changes that would result from a properly
13 performed test. Id. 13-14.
14 Nor was there a material question of fact whether Webster had a basis for believing that the
15 test did not in fact produce a positive result. Again, all three officers involved at the scene agreed
16 at the time that the result was positive, and even the most ambiguous of the officers’ reports, that of
17 Officer Dougherty, records a color sequence that is consistent with a positive final result.
18 Christiensen’s report confirms this conclusion. Green points to the lack of a description of the full
19 color-change sequence in any of the officers’ reports, but none of the reports purports to describe the
20 entire sequence of color changes that took place during the test, and all indicate that the test was
21 positive at its conclusion. Moreover, as noted above, Christiensen testified that the correct color-
22 change sequence took place. Dougherty further testified that he only recorded the “final result” of
4
1 what he saw and admitted that “other color changes” could have occurred prior to the final sequence
2 that he did not record. Dougherty Dep. 39. Finally, although Green points to “exculpatory evidence”
3 that should have suggested she was not guilty of a crime, Pl.’s Br. at 42, 56, none of this evidence
4 at the time of the arrest would have tended from Webster’s perspective to negate the reasonable
5 probability, created by the positive field test, that Green was in possession of cocaine. Cf. Kuehl v.
6 Burtis, 173 F.3d 646, 650 (8th Cir. 1999); Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 128 (2d
7 Cir. 1997) (“Once a police officer has a reasonable basis for believing there is probable cause, he is
8 not required to explore and eliminate every theoretically plausible claim of innocence before making
9 an arrest.”).
10 We have considered Green’s remaining arguments and find them to be without merit. For
11 the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
12
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16 By:
17
5