Stansbury v. Wertman

12-713-cv
Stansbury v. Wertman

1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4
5 August Term, 2012
6
7 (Argued: March 11, 2013 Decided: June 26, 2013)
8
9 Docket No. 12-713-cv
10
11
12 LINDA STANSBURY,
13
14 Plaintiff-Appellee,
15
16 -v.-
17
18 CHAD WERTMAN,
19
20 Defendant-Appellant,
21
22 JOSEPH LUTZ AND JOHN DOES 1 THROUGH 10,
23
24 Defendants.*
25
26
27
28 Before:
29 WALKER, SACK, AND WESLEY, Circuit Judges.
30
31
32
33
34
35 Plaintiff-Appellee Linda Stansbury initiated this action in
36 the United States District Court for the Southern District
37 of New York (Holwell, Judge) pursuant to 42 U.S.C. § 1983
38 alleging false arrest and malicious prosecution. Defendant-

*
The Clerk of the Court is directed to amend the
caption in the case to conform with the above.
1
 1 Appellant Chad Wertman moved for summary judgment, asserting
2 that (1) there was probable cause for the arrest and
3 prosecution, or, in the alternative that (2) he was entitled
4 to qualified immunity based on the existence of arguable
5 probable cause. Defendant timely appeals from the district
6 court’s January 24, 2012 opinion and order denying
7 Defendant’s motion for summary judgment. We find that the
8 district court erred by analyzing the evidence seriatim and
9 in isolation. In its totality, the evidence provided
10 Defendant with probable cause to arrest and prosecute
11 Plaintiff; we therefore hold that Defendant is entitled to
12 judgment as a matter of law and REVERSE the judgment of the
13 district court and REMAND with instruction to enter judgment
14 in favor of Wertman.
15
16 REVERSED and REMANDED with instruction to enter
17 judgment in favor of Wertman.
18
19
20
21
22 SUDARSANA SRINIVASAN, Assistant Solicitor General
23 (Barbara D. Underwood, Solicitor General,
24 Cecelia C. Chang, Deputy Solicitor General, on
25 the brief), for Eric T. Schneiderman, Attorney
26 General of the State of New York, New York,
27 NY, for Appellant Chad Wertman.
28
29 RANDOLPH M. McLAUGHLIN (Jeffrey M. Norton, on the
30 brief), Newman Ferrara LLP, New York, NY, for
31 Appellee Linda Stansbury.
32
33
34
35 WESLEY, Circuit Judge:
36
37 Chad Wertman (“Wertman”) appeals from the January 24,

38 2012 opinion and order of the United States District Court

39 for the Southern District of New York (Holwell, J.) denying

40 Wertman’s motion for summary judgment. Linda Stansbury

2
 1 (“Stansbury”) brought this action pursuant to 42 U.S.C.

2 § 1983 alleging false arrest and malicious prosecution.

3 Wertman moved for summary judgment, asserting that (1) there

4 was probable cause for the arrest and prosecution, or, in

5 the alternative that (2) he was entitled to qualified

6 immunity based on the existence of arguable probable cause.

7 The district court analyzed each piece of evidence in

8 the case seriatim and in isolation and concluded that there

9 was a genuine issue of material fact as to whether Wertman

10 had probable cause or arguable probable cause to arrest

11 Stansbury. This was error. Analyzing the evidence in its

12 totality, we hold that no reasonable trier of fact could

13 conclude that Wertman did not have probable cause to arrest

14 and to prosecute Stansbury. We therefore reverse the

15 district court’s opinion and remand the case with

16 instructions to enter judgment for Wertman.

17 Background

18 At 8:30 p.m. on April 4, 2006, a woman shoplifted

19 approximately $800 of goods from a Stop & Shop supermarket

20 in Somers, New York. Mary Sue Cirrincione (“Cirrincione”),

21 the store detective who was trained “to focus on distinctive

22 facial characteristics,” observed the crime on the store’s

3
 1 three-inch by five-inch monitor. Cirrincione Decl.; see

2 also Stansbury v. Wertman, No. 09-cv-04638-RJH, 2012 WL

3 183849 at *1 (S.D.N.Y. Jan. 24, 2012). Cirrincione alerted

4 co-worker Mark John (“John”), who physically observed the

5 perpetrator and watched her open tightly-folded, crisp, new

6 Old Navy bags and place items from the shelves into the bags

7 and then in her shopping cart. Id. When she tried to

8 leave, John attempted to block the perpetrator’s exit and

9 asked to see her receipt; she ran around him, exited the

10 building, and jumped into a white van. Id. John noted the

11 van’s license plate number as it drove away. Id.

12 Cirrincione and John reported the incident to the

13 police, and New York State Trooper Chad Wertman arrived to

14 investigate. Wertman recovered a bus receipt from an Old

15 Navy bag the perpetrator had left behind. He watched the

16 videotape of the theft and took the tape as evidence.

17 Cirrincione and John both described the perpetrator as a

18 “black female wearing blue jeans and a maroon windbreaker;”

19 John added that she was “about 5'5".” Id. The bus ticket

20 and license plate number did not yield any additional leads.

21 Noting that the perpetrator’s Old Navy bags were in

22 mint condition, Wertman traveled to one of the two nearby

4
 1 Old Navy stores. The Old Navy manager reported that a

2 middle-aged black woman had attempted to buy some clothing

3 at the store at 8:08 p.m. that evening, but that her credit

4 card was declined. The manager reported that new bags,

5 typically stored in the rear of the store, were discovered

6 strewn on the ground near the door around the same time.

7 Id. at *2. Wertman traced the credit card receipt to a card

8 belonging to Nicole Stansbury (“Nicole”), Linda Stansbury’s

9 daughter. After repeated attempts, Wertman was able to

10 contact Nicole by telephone; she alleged that she had been

11 in Old Navy on April 4 before visiting an A&P supermarket

12 and returning to her mother’s house.

13 Wertman went to Stansbury’s house on May 22 to

14 interview Nicole. Wertman asserts that on his arrival, “he

15 recognized Linda Stansbury as the perpetrator he had seen on

16 the videotape.” Id. He interviewed both women, but his

17 “notes of the interview reflect that Linda was nervous, that

18 she would not answer his questions directly, and that Nicole

19 answered many of the questions he asked of her mother.” Id.

20 After the interview, Wertman reviewed Stansbury’s

21 criminal history and discovered an arrest for grand larceny.

22 He then obtained a DMV photograph of Stansbury and asked

5
 1 another trooper to prepare a photo array. Before the array

2 was complete, Wertman and two senior officers reviewed the

3 videotape, compared it to the DMV photograph and confirmed

4 their collective belief that Stansbury was the perpetrator.

5 Wertman scheduled a follow-up interview with Linda and

6 Nicole Stansbury at the police barracks in Somers. He

7 planned to have Cirrincione and John come to the station and

8 view Linda Stansbury to see if they could identify her as

9 the shoplifter; the Stansburys never arrived. Id. at *3.

10 Because the photo array was not yet ready, Wertman showed

11 Stansbury’s DMV photograph to Cirrincione and John without

12 any control photographs, in violation of the New York State

13 Police Field Manual (“Field Manual”).1 Both Cirrincione and

14 John identified Stansbury as the perpetrator and signed a

15 sworn statement under penalty of perjury to that effect.

16 Cirrincione confirmed “without any doubt or reservation”

17 that Stansbury was the perpetrator, and John “was positively

18 without a doubt able to identify” her as the thief. After

19 Wertman spoke with her attorney, Stansbury turned herself in

20 the next day; she was listed as 5'9" tall upon arrest.

1
The Field Manual instructs officers to “NEVER show a
single photo of a suspect to a witness.” It also instructs
officers to separate witnesses when showing them photographs of
the suspect and to consult the district attorney’s office before
conducting a photo array with fewer than six photographs included
thereon.

6
 1 Stansbury was tried for petit larceny in Somers Town

2 Court. After a two-day bench trial including testimony by

3 Cirrincione and John, Stansbury was acquitted. Two years

4 later she commenced this suit, alleging false arrest and

5 malicious prosecution under 42 U.S.C. § 1983. Wertman moved

6 for summary judgment; finding “genuine issues of material

7 fact with respect to probable cause,” the district court

8 denied his motion in January 2012. Id. at *9. Wertman

9 timely filed this appeal.

10

11 Discussion

12 I. Jurisdiction and Standard of Review

13 This Court has jurisdiction to hear interlocutory

14 appeals of denials of motions for summary judgment where the

15 motion is predicated in whole or in part on assertions of

16 qualified immunity. See, e.g., Amore v. Novarro, 624 F.3d

17 522, 529 (2d Cir. 2010). Wertman alleges both that he is

18 entitled to qualified immunity based on the existence of

19 arguable probable cause and that he is entitled to judgment

20 as a matter of law based on the existence of probable cause.

21 We may exercise pendent jurisdiction to decide whether

22 Stansbury “has alleged a constitutional violation at all”

7
 1 before deciding whether Wertman is shielded by qualified

2 immunity. Finigan v. Marshall, 574 F.3d 57, 61 (2d Cir.

3 2009). Although it is no longer required, see Pearson v.

4 Callahan, 555 U.S. 223, 236 (2009), the probable cause

5 inquiry may precede any inquiry into qualified immunity

6 because there cannot be an allegation of a constitutional

7 violation where probable cause justifies an arrest and

8 prosecution. Panetta v. Crowley, 460 F.3d 388, 394-95 (2d

9 Cir. 2006). In this case, it is “beneficial,” Pearson, 555

10 U.S. at 236, to first address whether Wertman had probable

11 cause, because it best serves the interests of judicial

12 economy, see Escalera v. Lunn, 361 F.3d 737, 749 (2d Cir.

13 2004). Thus, because the probable cause inquiry is

14 inextricably intertwined with the immunity question, we will

15 exercise our “discretion[] [to] consider otherwise

16 nonappealable issues” based on our review of the question of

17 qualified immunity. San Filippo v. U.S. Trust Co. Of N.Y.,

18 Inc., 737 F.2d 246, 255 (2d Cir. 1984); see also Golino v.

19 City of New Haven, 950 F.2d 864, 868-69 (2d Cir. 1991).

20 The standard of review here is well-established.2 We

2
We review denials of summary judgment de novo, construing
“all evidence in the light most favorable to the non-moving
party, drawing all inferences and resolving all ambiguities in
[her] favor.” Amore v. Novarro, 624 F.3d 522, 529 (2d Cir.
2010).

8
 1 conclude that Wertman had both probable cause and arguable

2 probable cause to arrest and prosecute Stansbury; the

3 district erred in denying Wertman’s motion for summary

4 judgment as to the false arrest and malicious prosecution

5 claims.

6

7 II. False Arrest

8 “‘[P]robable cause is an absolute defense to a false

9 arrest claim.’” Torraco v. Port Auth. of N.Y. and N.J., 615

10 F.3d 129, 139 (2d Cir. 2010) (quoting Jaegly v. Couch, 439

11 F.3d 149, 152 (2d Cir. 2006)). “An officer has probable

12 cause to arrest when he or she has knowledge or reasonably

13 trustworthy information of facts and circumstances that are

14 sufficient to warrant a person of reasonable caution in the

15 belief that the person to be arrested has committed . . . a

16 crime.” Jaegly, 439 F.3d at 152. A court “must consider

17 [only] those facts available to the officer at the time of

18 the arrest and immediately before it.” Panetta, 460 F.3d at

19 395 (internal quotation marks and emphasis omitted). A

20 court examines each piece of evidence and considers its

21 probative value, and then “look[s] to the totality of the

22 circumstances” to evaluate whether there was probable cause

23 to arrest and prosecute the plaintiff. Id. (quotation marks

9
 1 omitted). If probable cause existed, it presents a total

2 defense to Stansbury’s actions for false arrest and

3 malicious prosecution; Wertman would be entitled to judgment

4 as a matter of law. Savino v. City of New York, 331 F.3d

5 63, 75 (2d Cir. 2003).3

6 A. Available Evidence as to Probable Cause4

7 The district court analyzed five separate pieces of

8 evidence before concluding that Wertman was not entitled to

9 a probable cause determination:

10 (1) Cirrincione’s and John’s eyewitness accounts of
11 the shoplifting; (2) the store surveillance tape;
12 (3) [Wertman’s] identification of Stansbury as the
13 perpetrator on the surveillance tape; (4) [other
14 officers’] opinion[s] that Stansbury’s DMV picture
15 matched the perpetrator depicted on the
16 surveillance tape; and (5) Cirrincione’s and John’s
17 photo identification.
18
19 Stansbury, 2012 WL 183849, at *4. The record also includes

20 uncontested evidence that the district court chose not to

3
In analyzing arguable probable cause for Wertman’s
qualified immunity defense, we examine the same evidence under
the same circumstances and evaluate “whether it was objectively
reasonable for the officer to conclude that probable cause
existed.” Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir.
2007). If an officer had probable cause, he or she also had
arguable probable cause and is protected by qualified immunity.
4
The evidence in this section is listed in the district
court’s opinion and is not meaningfully contested by the parties.
Insofar as Stansbury claims that some of the documentation in the
record is invalid or does not exist, such assertions do not
constitute “a ‘genuine’ dispute as to those facts.” Scott v.
Harris, 550 U.S. 372, 380 (2007).

10
 1 analyze: the shoplifter’s use and possession of pristine

2 Old Navy bags; Wertman’s observations of Stansbury’s

3 behavior during his interview; his knowledge of Stansbury’s

4 previous larceny arrest; and similarities between

5 Stansbury’s handbag and the perpetrator’s handbag.

6 The district court began its discussion by analyzing

7 the evidence related to the videotape – including Wertman’s

8 identification of Stansbury in person, his colleagues’

9 corroborating identifications of Stansbury based on her DMV

10 photograph, and the videotape itself. The district court

11 noted that the evidence was probative, but not sufficient,

12 finding that nothing in it was so persuasive “that a jury

13 would be unreasonable in concluding that the videotape was

14 not ‘sufficient to warrant a person of reasonable caution’”

15 in concluding that Stansbury was the perpetrator. Id.

16 (quoting Jaegly, 439 F.3d at 152). We do not disagree with

17 the court here, but that does not end the inquiry. The

18 district court noted that “[t]here are several instances on

19 the videotape where the perpetrator’s face appears with some

20 definition,” though the perpetrator’s face did not appear to

21 perfectly match Stansbury’s DMV photo. Id. The visibility

22 of the perpetrator on the tape makes Wertman’s

23 identification probative and allows the other officers’

11
 1 identifications based on the tape to contribute meaningfully

2 to Wertman’s probable cause to arrest Stansbury.

3 After disposing of the videotape, the court proceeded

4 to analyze the identifications made by Cirrincione and John

5 at the police barracks. As an initial matter, the district

6 court rightly condemned the use of a one-photograph array to

7 confirm identity. Id. at *5 (decrying the absence of

8 indicia of reliability spelled out in Neil v. Biggers, 409

9 U.S. 188, 198 (1972)). Showing suspects “singly to persons

10 for the purpose of identification . . . has been widely

11 condemned,” even when done in person. Stovall v. Denno, 388

12 U.S. 293, 302 (1967), overruled on other grounds by Griffith

13 v. Kentucky, 479 U.S. 314 (1987). The use of a single

14 photograph of the suspect is not more reliable.

15 However, “absent circumstances that raise doubts as to

16 the victim’s veracity,” a victim’s identification is

17 typically sufficient to provide probable cause. Singer v.

18 Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)

19 (holding that a store clerk’s description of an incident of

20 shoplifting supported a finding of probable cause).5

5
“Under New York law an identified citizen informant is
presumed to be reliable.” Caldarola v. Calabrese, 298 F.3d 156,
165 (2d Cir. 2002) (citing People v. Hetrick, 80 N.Y.2d 344, 349
(1992)). “We have endorsed a similar proposition.” Id.

12
1 Wertman had no reason to doubt the honesty of either

2 Cirrincione or John, each of whom made statements under

3 penalty of perjury and lacked incentive to single out

4 Stansbury as the perpetrator.6 Although Cirrincione’s and

5 John’s identifications were too problematic alone to provide

6 probable cause to arrest Stansbury, this flaw does not

7 render the evidence non-probative. “[E]vidence need not be

8 admissible at trial in order to support a finding of

9 probable cause.”7 Phillips v. Allen, 668 F.3d 912, 915 (7th

(citations omitted). The same rule applies to identifications of
the perpetrator from photographic arrays. See, e.g., People v.
Jones, 2 N.Y.3d 235, 238 (2004).
6
This Court affords greater weight when witnesses testify
or swear “under threat of the criminal sanction for perjury.”
United States v. Hernandez, 85 F.3d 1023, 1028 (2d Cir. 1996).
7
The district court, applying the factors set forth in Neil
v. Biggers, 409 U.S. 188 (1972), determined that Cirrincione’s
and John’s identifications lacked sufficient “indicia of
reliability” to support probable cause to arrest Stansbury. See
Stansbury v. Wertman, No. 09-cv-04638-RJH, 2012 WL 183849, at *5-
6 (S.D.N.Y. Jan. 24, 2012) (discussing “[1] the opportunity of
[Cirrincione and John] to view the criminal at the time of the
crime, [2] [Cirrincione’s and John’s] degree of attention, [3]
the accuracy of [Cirrincione’s and John’s] prior description of
the criminal, [4] the level of certainty demonstrated by
[Cirrincione and John] at the confrontation, and [5] the length
of time between the crime and the confrontation”). Although we
agree with the district court that the identification procedures
employed here were suggestive, Biggers concerns the admissibility
of identifications at criminal trials, not whether an
identification can support probable cause to arrest a suspect.
Application of the Biggers framework requires the kind of
hindsight that, while useful in determining whether evidence
should be admitted at trial, is inappropriate when deciding
whether a police officer had probable cause to arrest. See

13
 1 Cir. 2012) (interpreting Illinois v. Gates, 462 U.S. 213

2 (1983)). “[A]lthough not able to be used at his [criminal]

3 trial, [victim’s] identification of [the perpetrator] may

4 properly provide a basis for probable cause to arrest him.”

5 People v. Nelson, 79 A.D.2d 171, 174 (N.Y. App. Div. 4th

6 Dep’t 1981) (Cardamone, Justice) (abrogated on other grounds

7 by People v. Cintron, 199 A.D.2d 526 (N.Y. App. Div. 2d

8 Dep’t 1993)).

9 The shoplifter’s Old Navy bags, which in the video

10 appear never to have been unfolded or used, properly

11 narrowed Wertman’s investigation to the universe of people

12 who may have visited an Old Navy shortly before the robbery.

13 Wertman’s discovery that unused bags were seen strewn on the

14 floor at a nearby store 22 minutes before the robbery,

15 around the time a “middle aged black woman” used Nicole

Phillips v. Allen, 668 F.3d 912, 915 (7th Cir. 2012)
(“Application of the Biggers framework is possible, however, only
after evidence has been gathered and an adversarial hearing
held.”). For the purposes of determining whether an
identification can support probable cause, the basic question is
whether the identification procedure was “so defective that
probable cause could not reasonably be based upon it.” Jenkins,
478 F.3d at 93. Because there is no suggestion that Cirrincione
or John was coerced into identifying the plaintiff, or that
Wertman thought either witness had any motive to lie, we conclude
that the identification procedures employed here - although
highly improper - were not so flawed that they could not
contribute to a finding of probable cause. .

14
 1 Stansbury’s credit card at Old Navy, was undoubtedly

2 relevant to assessing his probable cause determination.

3 This circumstantial evidence that Stansbury may have had an

4 opportunity to obtain unused Old Navy bags just prior to the

5 shoplifting incident is probative as to the likelihood that

6 she was the perpetrator.

7 When Wertman interviewed the Stansburys about their

8 presence at Old Navy, he observed that Linda Stansbury was

9 very nervous and evasive. Furthermore, Wertman noticed that

10 Nicole tried to cover for her mother during the interview.

11 A police officer’s contemporaneously recorded observation

12 that a suspect was evasive when questioned may be a

13 significant factor in a probable cause determination. See,

14 e.g., United States v. Gagnon, 373 F.3d 230, 238 (2d Cir.

15 2004).8 “Courts consider several factors when determining

16 [probable cause], including the defendant’s excessive

17 nervousness . . . and evasive or contradictory answers to

18 questions.” People v. Kelley, 306 A.D.2d 699, 700 (N.Y.

19 App. Div. 3d Dep’t 2003) (cited approvingly by People v.

8
In another case, how much weight to give an officer’s
observations in this regard might depend in part on the officer’s
subjective mindset, even if such a mindset does not in itself
determine the existence or absence of probable cause, but
Wertman’s mindset was not at issue in this case. See Devenpeck
v. Alford, 543 U.S. 146, 153-154 (2004).

15
 1 Hall, 10 N.Y. 3d 303, 321 (2008)). Accordingly, the

2 district court erred by failing to consider this interview

3 in its probable cause analysis.

4 Other evidence tending to make it more likely that

5 Stansbury was the Stop & Shop culprit included Wertman’s

6 knowledge of her 1997 arrest for grand larceny in White

7 Plains and Wertman’s comparison of her handbag to the

8 perpetrator’s handbag as observed on the video. Though

9 neither piece of information individually yields a

10 significant step towards establishing probable cause, the

11 district court should have considered both as part of the

12 totality of circumstances. Similarly, John’s assertion that

13 the perpetrator was 5'5" tall (in light of Stansbury’s 5'9"

14 stature) is part of the total mix of evidence necessary to

15 properly evaluate Wertman’s decision to arrest Stansbury.9

16 B. Probable Cause Under the Totality of the Circumstances

17 The district court analyzed the evidence seriatim,

18 finding that no piece of evidence was sufficient in itself

9
Cirrincione claims that she identified various physical
similarities between Stansbury and the perpetrator (sunken
cheeks, hooded eyes, and other distinctive facial
characteristics). There is no evidence that she communicated
these observations to Wertman; because they were not a factor in
Wertman’s decisions to arrest and prosecute Stansbury, we do not
consider them. See Panetta, 460 F.3d at 395.

16
 1 to establish arguable probable cause. Stansbury, 2012 WL

2 183849, at *4-6. Although it adequately evaluated the

3 pieces of evidence that it chose to consider, the district

4 court erred insofar as it did not account for the evidence

5 “on the totality of the circumstances.” Jenkins v. City of

6 New York, 478 F.3d 76, 90 (2d Cir. 2007) (citing Brinegar v.

7 United States, 338 U.S. 160 (1949)).

8 The totality of the circumstances test is no mere

9 formality; it may frequently alter the outcome of a case.

10 “Those who do not take into account conditional probability

11 are prone to making mistakes in judging evidence. They may

12 think that if a particular fact does not itself prove the

13 ultimate proposition (e.g., whether the [officer had

14 probable cause]), the fact may be tossed aside and the next

15 fact may be evaluated as if the first did not exist.” Al-

16 Adahi v. Obama, 613 F.3d 1102, 1105 (D.C. Cir. 2010).10 “The

17 significance of each [relevant] factor[] may be enhanced or

10
This is precisely what the district court did in this
case. See, e.g., Stansbury, 2012 WL 183849, at *4 (“the
videotape was not sufficient to warrant a person of reasonable
caution in concluding that Stansbury was the perpetrator”)
(internal citations omitted); id. at *6 (it would be “impossible
for the Court to conclude that a jury would be unreasonable in
concluding that Cirrincione’s and John’s identifications of
Stansbury based on a single photo did not give Wertman probable
cause”); id. n.3 (“the same logic also renders [other officers’]
identification[s] insufficient to support probable cause”).

17
 1 diminished by surrounding circumstances.” Jenkins, 478 F.3d

2 at 90. Review for probable cause should encompass “plainly

3 exculpatory evidence” alongside inculpatory evidence to

4 ensure the court has a full sense of the evidence that led

5 the officer to believe that there was probable cause to make

6 an arrest. Fabrikant v. French, 691 F.3d 193, 214 (2d Cir.

7 2012) (quoting Panetta, 460 F.3d at 395). A story is never a

8 single chapter, it is the experience of the entire tale; the

9 same is true of probable cause.

10 The district court looked to our efforts in Jenkins v.

11 City of New York to support its determination.11 In Jenkins,

12 New York Police Department (“NYPD”) detectives investigated

13 a series of robberies and a homicide committed by the main

14 perpetrator and an accomplice. 478 F.3d at 81. By tracing

15 the first victim’s stolen red Honda Civic, reportedly used

16 in all subsequent crimes, the NYPD found Blyther, the

17 perpetrator. When the police raided Blyther’s apartment,

18 they also found and arrested Jenkins; they contended that he

19 resembled descriptions of Blyther’s accomplice in that he

20 was a black male. Id. at 82-84, 89. Three lineups were

11
It comes as no surprise that the parties agree that
Jenkins provides the template to resolve the matter; they,
however, reach differing results.

18
 1 conducted for one witness and two victims, all of whom

2 identified Jenkins as Blyther’s accomplice in his crime

3 spree. Id. at 82. In one lineup, however, the witness was

4 not permitted to leave without fingering one of the men.

5 Id. at 83. Eight months later, Blyther named his actual

6 accomplice – not Jenkins. Id. at 82-83. Some material

7 facts - including Jenkins’s behavior prior to arrest - were

8 subject to genuine dispute.

9 This Court held that the officers developed probable

10 cause only after the second and third identifications

11 (which, though flawed, were procedurally superior to the

12 first lineup). Id. at 93. The totality of the evidence

13 available to the police at that time included: (1) Jenkins’

14 presence in Blyther’s apartment days after the crimes; (2)

15 Jenkins’ race and gender, which corresponded with the

16 accomplice’s race and gender; (3) a witness’s coerced and

17 therefore meaningless identification of Jenkins; and (4) two

18 victims’ identifications of Jenkins in subsequent “less than

19 perfect” lineups. Id. at 90-93. Although the first three

20 pieces of evidence were insufficient, all four combined

21 established probable cause. Id. at 93.

22

19
 1 The totality of evidence in this case exceeds the

2 evidence the NYPD possessed in Jenkins following the third

3 lineup. Although the identifications from the photographic

4 array in this case were less probative than even the two

5 imperfect lineups in Jenkins, the evidence implicated

6 Stansbury before any flawed identification. Prior to the

7 identifications, Wertman was aware that, 22 minutes before

8 the shoplifting, a middle-aged black woman had used Nicole

9 Stansbury’s credit card at a nearby Old Navy and that new

10 shopping bags were seen strewn on the floor near the exit of

11 the store. When questioned about her whereabouts that

12 evening, Wertman observed that Stansbury was nervous and

13 evasive. Stansbury, moreover, had a previous arrest for a

14 similar crime.

15 On top of the circumstantial evidence against

16 Stansbury, five individuals (including three trained

17 officers and two innocent victims with no alleged motive to

18 lie, one of whom had training in facial identification)

19 could not distinguish her from the perpetrator in admittedly

20 flawed photographic arrays. The two victims submitted sworn

21 affidavits expressing no uncertainty that Stansbury was the

22 perpetrator. The fact that the victims did not offer timely

20
 1 detailed descriptions of the perpetrator means that probable

2 cause could not be based on Stansbury’s matching these

3 descriptions; it does not mean that the victims could not

4 meaningfully identify Stansbury. The district court

5 misstated the factual record in asserting that “the most the

6 Court can say is undisputed is that Cirrincione and John

7 told Wertman that the shoplifter was a black female who was

8 wearing a maroon windbreaker and blue jeans.” Stansbury,

9 2012 WL 183849, at *7. Such a description might, as the

10 lower court suggested, be comparable to Jenkins; however,

11 there is significantly more evidence here.

12 John’s claim that the perpetrator was 5'5" tall is

13 evidence indicating that Stansbury could be innocent, but

14 this evidence was outweighed by the mountain of evidence to

15 the contrary. Boyd v. City of New York, 336 F.3d 72, 74, 77

16 (2d Cir. 2003). In Boyd, the police had probable cause to

17 make an arrest based on Boyd’s purchase of a stolen car,

18 even though the car did not “look stolen” and Boyd may not

19 have known it was stolen. Id. (asserting, however, that

20 there was not probable cause to support a prosecution).

21 Boyd reaffirms that some exculpatory evidence does not make

22 an arrest illegal when the totality of evidence still

21
 1 establishes probable cause to believe that the suspect

2 committed the crime. Such is the case here, where the only

3 exculpatory evidence is a guess from a store employee as to

4 the perpetrator’s height that was off by four inches. This

5 deficiency, if it was one, was overcome by other evidence,

6 including a positive, sworn identification by the same

7 employee.

8 Because there was an identifiable crime and a

9 substantial volume of contemporaneously-recorded,

10 uncontroverted circumstantial evidence that supported the

11 conclusion that Stansbury was the perpetrator, Wertman had

12 probable cause to arrest Stansbury. No reasonable juror

13 could have held that Wertman did not have probable cause to

14 believe that Stansbury had committed the larceny at the Stop

15 & Shop.12

16

12
While Wertman did have probable cause to arrest
Stansbury, this does not mean that he conducted a perfect
investigation. “Although a better procedure may have been for
the officer[] to investigate [Stansbury’s] version of events more
completely, the arresting officer does not have to prove [a
suspect’s] version wrong before arresting [her].” Curley v.
Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001). Perhaps
Wertman should have been more thorough, but he did not
“misrepresent[] the evidence to the prosecutors” and no evidence
suggests that he broached protocol in any way other than the use
of an inadequate photographic array. Cf. Manganiello v. City of
New York, 612 F.3d 149, 165 (2d Cir. 2010). This alone does not
mitigate the probable cause that his investigation provided.

22
 1 III. Malicious Prosecution

2 Because lack of probable cause is an element of a

3 malicious prosecution claim, “the existence of probable

4 cause is a complete defense to a claim of malicious

5 prosecution.” Manganiello v. City of New York, 612 F.3d

6 149, 161-62 (2d Cir. 2010) (alteration omitted) (quoting

7 Savino, 331 F.3d at 72). The presumption of probable cause

8 established by a grand jury indictment “may be rebutted ...

9 by evidence that the indictment was procured by fraud,

10 perjury, the suppression of evidence or other police conduct

11 undertaken in bad faith.” Id. at 162 (alterations,

12 citations, and quotation marks omitted). However, once

13 probable cause has been established, it is impossible for

14 plaintiff to prevail on a malicious prosecution claim as a

15 matter of law. See Savino, 331 F.3d at 72.

16 The probable cause standard in the malicious

17 prosecution context is slightly higher than the standard for

18 false arrest cases. Boyd, 336 F.3d at 76. “Probable cause,

19 in the context of malicious prosecution, has also been

20 described as such facts and circumstances as would lead a

21 reasonably prudent person to believe the plaintiff guilty.”

22 Id. For the reasons discussed above, the uncontroverted

23
 1 evidence adduced in Wertman’s investigation suffices to meet

2 that standard.

3 As a matter of law, the uncontroverted facts in this

4 case created probable cause to initiate Stansbury’s

5 prosecution for petit larceny; Wertman was therefore

6 entitled to judgment as a matter of law.

7

8 Conclusion

9 “Where the record taken as a whole could not lead a

10 rational trier of fact to find for the nonmoving party,

11 there is no ‘genuine issue for trial.’” Scott, 550 U.S. at

12 380 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio

13 Corp., 475 U.S. 574, 586-87 (1986)). Ignoring frivolous

14 allegations, the documented record establishes

15 uncontroverted facts that, taken together, provided probable

16 cause for the arrest and prosecution of Linda Stansbury.

17 Officer Wertman is therefore entitled to judgment as a

18 matter of law.

19 For the foregoing reasons, the opinion and order of the

20 district court is REVERSED, and the case is REMANDED with

21 instruction for the district court to grant Wertman’s motion

22 for summary judgment.

24