concurring in part and dissenting in part.
I concur in the majority opinion concerning plaintiffs’ claims of subornation of perjury (Section IV).
*569With great respect for my colleagues, I must dissent from the remainder of the majority opinion which holds that: (1) there was probable cause for Spencer’s arrest, and that any deficiencies in the request for an arrest warrant, submitted after Spencer was taken into custody, are irrelevant to that probable cause determination; (2) even if Peet had been arrested without probable cause, Dwight Pearson cannot be held liable because he did not participate in Peet’s arrest; (3) Peet submitted insufficient evidence that his illegal arrest was caused by a custom or policy of the City of Detroit; and (4) plaintiffs are estopped from asserting their claims of malicious prosecution.
I. Claims of Arrest Without Probable Cause
A. The Effect of Deficiencies in the Request for an Arrest Warrant After a Warrantless Arrest
On appeal, Jeemell Spencer and Dennis Peet argue that the district court erred in granting summary judgment in favor of Dwight Pearson on their § 1983 claims for arrest without probable cause. As the district court noted, Pearson was “the homicide officer in charge of the investigation.” J.A. at 42.1 After Spencer and Peet were arrested, Pearson prepared an investigative report, which he submitted to the Wayne County Prosecutor’s Office along with all then-existing witness statements, and a request for an arrest warrant. The Prosecutor’s Office, in turn, submitted that information to a local state court judge who determined that probable cause existed and issued an arrest warrant for Spencer and Peet.
The arrest warrant was issued even though Spencer and Peet were already in custody. This is because, under Michigan law, if an accused is in custody as a result of a warrantless arrest, a magistrate, upon a finding of “reasonable cause,” ie. probable cause, shall either issue an arrest warrant or make an endorsement upon the complaint of a finding of reasonable cause. M.C.L.A. 764.1c. Michigan’s statute codifies the Supreme Court’s holding in Gerstein v. Pugh, 420 U.S. 103, 124-125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), that whenever a person is arrested without a warrant, an impartial judge must make a “fair and reliable determination of probable cause.” This requirement implements the “Fourth Amendment’s protection against unfounded invasions of liberty and privacy.” Id. at 112, 95 S.Ct. 854. The probable cause determination must generally be made within 48 hours after the arrest. See County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). Unless the judge finds that probable cause existed for the arrest, the suspect must be released. The relevant question is whether, at the moment of the arrest, probable cause existed to believe that the arrestee had committed a crime. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).
Pearson’s investigative report was presented to a judge in support of the request for the arrest warrant and, unquestionably, was relied upon by the judge in making the probable cause determination. One of the key issues in this case is whether it matters that Pearson’s report contained false and misleading statements and omitted material exculpatory information.
Citing Beck, the majority finds that any events occurring after the arrests of *570Spencer and Peet are irrelevant. Maj. Op. Section 11(B). I certainly agree that, pursuant to the holding in Beck, only the evidence known to the officer at the moment of the arrest is relevant to a determination of whether probable cause exists to believe that the arrestee has committed a crime. The majority, however, overlooks the important constitutional issue presented by the facts of this case. It is not a simple question of whether probable cause did, in fact, exist for the arrests of Spencer and Peet, as the majority believes. At issue in this case is whether a person acting under color of state law — in this case, Detective Pearson — can be held liable for a Fourth Amendment violation under 42 U.S.C. § 1983 for submitting false and misleading statements and making material omissions in his request for an arrest warrant. In this case, the plaintiffs already being in custody, the purpose was to obtain a finding that probable cause existed for the warrantless arrests, thereby justifying the continued incarceration of the arrestees.2
If the constitutional requirement that, within 48 hours following a warrantless arrest, an impartial judge must make a “fair and reliable determination of probable cause,” is to have any meaning at all, the information submitted to the judge in support of the warrant request is most certainly relevant. Unless the judge is presented with accurate information about the specific evidence that existed at the moment of the arrest, it is impossible to make a “fair and reliable determination of probable cause.”
In cases involving search warrants, and in cases involving arrest warrants sought prior to an arrest, the law is clear that an officer may be held liable under 42 U.S.C. § 1983 for an illegal search or seizure when the officer “knowingly and deliberately, or with a reckless disregard for the truth” makes “false statements or omissions that create a falsehood” and “such statements or omissions are material, or necessary, to the finding of probable cause.” Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir.2000) (cited with approval by the Sixth Circuit in Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir.2003)).3 See also Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir.1989). As this court said in Hinchman v. Moore, 312 F.3d 198, 205-06 (6th Cir.2002), “[falsifying facts to establish probable cause to arrest and prosecute an innocent person is of course patently unconstitutional.” When an affidavit contains false statements or material omissions, the question becomes whether, once the false statements are omitted and the omitted facts are inserted, the “corrected affidavit” is still sufficient to establish probable cause. Wilson, 212 F.3d at 789. See also Hill, 884 F.2d at 275 (a Fourth *571Amendment violation exists if, “with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause” (quoting Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978))).
I believe that this same analysis must be applied when an arrest warrant is sought following a warrantless arrest. The probable cause determination by an impartial judge is more than a “rubber stamp” after the fact of an arrest. The judge is required to make an independent determination of whether probable cause existed at the moment of the arrest. If it is a constitutional violation to submit false statements and omit material facts when seeking a warrant prior to an arrest, it is also, in my opinion, a constitutional violation to submit false statements and omit material facts when seeking a judicial determination of probable cause following a warrantless arrest. The constitutional requirement of a “fair and reliable determination of probable cause” applies with equal force in both cases. With this premise in mind, I turn then to an application of the law to the facts of this ease.
B. The False and Misleading Statements and Material Omissions in the Request for an Arrest Warrant
Based on the information Pearson submitted with his request for an arrest warrant, the judge determined that probable cause existed for the warrantless arrests of Spencer and Peet, and therefore they continued to be held in jail. That probable cause determination, however, was based on a report that was constitutionally deficient in numerous respects. It contained false and misleading statements and omitted a great deal of exculpatory information.
The most glaring error was Pearson’s patently false statement that eyewitnesses Bracey and Anderson would testify that Spencer and Peet (identified in the report as “Defendants # 1 and # 2”), had robbed them at the gas station next to the Coney Island restaurant. J.A. at 381. In fact, absolutely nothing in their statements implicates Spencer or Peet. That same report states that Feanda Wilson saw “Defendants # 1 and # 2,” ie., Spencer and Peet, attempt to rob Reed Byrd of his coat, and heard “Defendant # 1,” ie., Spencer, tell the unidentified gunman to shoot Byrd. J.A. at 380-81. The judge who made the probable cause determination obviously would have relied on the fact that, according to Pearson’s report, three separate eyewitnesses — Wilson, Bracey and Anderson — all had identified Spencer and Peet as participants in the crime prior to their arrests, an extremely inculpatory fact that was, however, undeniably false.
Pearson’s report also states that Wilson, the key witness, would testify that she positively identified Spencer and Peet in a show up/line up at the police station. J.A. at 381. While not technically a false statement, it is patently misleading. It would lead any judge to believe that Wilson’s eyewitness identification of Spencer and Peet in the lineup at the police station occurred before the arrests. In fact, the identification did not occur until after the arrests. Because the probable cause determination must be based on what evidence existed at the moment of the arrest, the evidence submitted to the judge should have been confined to the evidence Pearson had available when Spencer and Peet were taken into custody. Evidence of Wilson’s later eyewitness identification should not have been submitted to the judge for consideration in determining whether probable cause existed at the time of the arrests.
*572Not only did the report contain false and grossly misleading statements, it also omitted important exculpatory information. For example, it fails to note discrepancies between the physical descriptions of the robbers given by witness John Anderson and by Feanda Wilson. Wilson described the gunman as a black male, 20-23, 5'7", 165-170, light complexion, braided hair, light grey jogging suit, white shirt. She described the man who gave her his pager number, i.e., Spencer, as a black male, 20-25, 5'4"-5'5", 170, dark complexion, mustache, braids, wearing a black leather jacket and dark pants. The other accomplice, ie., Peet, was described as a black male, 20-25, 5'8", 180, light complexion, low cut hair, gray hooded sweatshirt, light colored pants. J.A. at 236. Anderson’s description of the gunman matched Wilson’s statement.4 However, Anderson stated that one of the other accomplices was wearing a red pullover jacket and a red skull cap. J.A. at 451-52. This description is, of course, completely inconsistent with Wilson’s descriptions of Spencer and Peet.
Pearson’s report also fails to note that although the initial police report indicates that there were only two perpetrators, Wilson later stated that there were three. J.A. at 235-37, 394. In addition, the report fails to mention that although Wilson initially told the responding officer that the suspects were driving a light blue Ford F-150 pickup truck, J.A. at 394, and later said it was a dark blue Ford F-150, J.A. at 236, Peet’s vehicle was actually a midnight blue Dodge Ram.
It is undisputed that, at some point during the investigation, Pearson came to doubt the veracity of Wilson’s statement. On May 2nd, just four days after he submitted his report, he wrote in his Progress Notes that he planned to arrange for Wilson to take a polygraph test because her statement was out of line with the statements of all other witnesses. Pearson admitted at his deposition that he might have had doubts about the truthfulness of Fean-da Wilson’s statement even before the warrant was issued:
Q. Okay. But between the time you took Wilson’s statement and the time you took Bracey’s statement, you had a question about Feanda Wilson’s truthfulness, correct?
A. I don’t know when I had a disbelief at the time. It might have been after the warrant was signed.
Q. It might have been before the warrant was signed, correct?
A. Could have been.
Q. And if it had been before the warrant was signed—
A. Then a warrant probably wouldn’t have been signed.
Q. Would you have been duty-bound to put that in your request for warrant?
A. You don’t put that in your warrant request.
Q. You don’t?
A. No.
Q. Why not?
A. It’s information about the circumstances. It don’t say if you have witnesses in doubt.
Q. You don’t put in there that I don’t think she’s being truthful?
A. No, you don’t.
*573Q. You don’t put in there the parts that you think she’s being untruthful about?
A. The reason why I don’t put it in there is because all I do is gather information and give it to the prosecutor. Even though the statement is saying one thing, she the one made the statement. If any of us have any doubtfulness, then we’ll let the prosecutor know maybe on a piece of paper that witness may be questionable, but it never goes into the investigative report.
J.A. at 364-365. So even if Pearson had doubts about the truthfulness of his key witness, he would have concealed those doubts from his investigative report and his request for a warrant made to the judge who was to make the probable cause determination. In my view, Pearson’s failure to disclose his doubts about the veracity of Wilson’s statement in his report and request must be considered a- material omission.
I believe that Pearson had good reason to doubt the veracity of Wilson’s statement even before he submitted the request for an arrest warrant. Wilson’s written statement was inconsistent with the statement she gave to the police who responded to her call at the scene of the crime, and it was not corroborated by the statement of any other witness. Common sense also calls her statements into serious doubt. As this court pointed out in Gardenhire v. Schubert, 205 F.3d 303 (6th Cir.2000), the unlikely conduct of a defendant is a factor to consider in the determination of whether a police officer had probable cause for a warrantless arrest. Id. at 315 (“It is unlikely that one store owner would steal goods from another and then leave those goods in the window of her own storefront.”). In this case, it is extremely unlikely that Spencer would give Wilson his pager number so that she could locate him, and then proceed to commit a violent crime in her presence. As Gardenhire also points out, officers must consider the “totality of the circumstances, recognizing both the inculpatory and exculpatory evidence” in determining whether they have probable cause to make an arrest. Id. at 318 (emphasis in original).
The question then becomes whether, once the false and misleading inculpatory statements are omitted from Pearson’s report, and the material exculpatory evidence is included, probable cause nevertheless exists to believe that Spencer or Peet had committed a crime.5
*574C. Pearson’s Liability for Unlawful Arrests
1. Probable Cause for Spencer’s Arrest is a Jury Issue
With respect to Spencer, the majority concludes, as did the district court, that probable cause existed to believe that Spencer had robbed Reed Byrd outside the Coney Island restaurant. That conclusion is based primarily on Wilson’s written witness statement, taken approximately six hours after the shootings. According to Wilson, the gunman’s two accomplices came into the Coney Island restaurant to order food. One of them gave her his pager number, either “232-0235 or 6235 and the name ‘Mail.’ ” J.A. at 236. The two then went to the parking lot and ate in their truck, a “dark blue Ford F-150 pickup, late 80’s, early 90’s.” J.A. at 236. Wilson said that she later observed these two men trying to rob Reed Byrd of his coat and heard the one who had given her his pager number tell the gunman to shoot Byrd. J.A. at 235-36.
Pearson traced that pager number to Spencer and arrested him without a warrant shortly thereafter. If Wilson’s statement, standing alone, were reliable enough to support probable cause for Spencer’s arrest, then Pearson should have immediately sought an arrest warrant. Pearson, however, obviously felt the need to obtain additional evidence to justify the warrant-less arrest. In County of Riverside, the Supreme Court held that “delays for the purpose of gathering additional evidence to justify the arrest” were just one example of unreasonable delays in seeking an arrest warrant. 500 U.S. at 56, 111 S.Ct. 1661. Pearson’s Progress Notes indicate that three hours after Spencer’s arrest, and prior to writing his request for an arrest warrant, Pearson arranged to have Wilson identify Spencer in a lineup. Before writing the request for an arrest warrant, Pearson also went to the scene of the crime to see if any video cameras were running when the crime occurred and took the gas station cashier, Salah Alhalmi, to the police station for questioning.6
I believe that genuine issues of material fact preclude summary judgment on the question of whether, at the time of Spencer’s arrest, probable cause existed to believe that he had committed a crime. There is no question that after Spencer returned a call placed to one of the pager numbers given by Wilson, Spencer was arrested based only on this evidence. However, even though Wilson said that the man who gave her the pager number said his name was “Mail,” J.A. at 236, there is no evidence that Spencer ever used that name. Pearson obviously believed that the *575evidence against Spencer was not enough to justify probable cause for the arrest, because he did not prepare his report and request for a warrant until after Wilson had identified Spencer in a police lineup. As noted earlier, however, Wilson’s eyewitness identification of Spencer at the lineup must be excluded from consideration because it occurred after his arrest.
Construing the evidence in the light most favorable to the plaintiff, I believe that a reasonable jury could find that Spencer was arrested without probable cause. This is particularly true once Pearson’s admittedly false but extremely inculpating statements concerning eyewitnesses Bracey and Anderson are excluded from consideration, and all material exculpatory evidence, including Wilson’s contradictory statements and Pearson’s doubts about her credibility, are taken into consideration. As this court has said on more than one occasion, “the existence of probable cause in a § 1983 action presents a jury question, unless there is only one reasonable determination possible.” Wilson v. Morgan, 477 F.3d 326, 334 (6th Cir.2007) (quoting Gardenhire, 205 F.3d at 315). See also Gregory v. City of Louisville, 444 F.3d 725, 743 (6th Cir.2006) (“In a § 1983 action, the existence of probable cause is a question of fact. See United States v. Gaudin, 515 U.S. 506, 521, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).”). I would therefore reverse the summary judgment rendered in favor of Pearson and have the issue of probable cause for Spencer’s arrest submitted to a jury. I turn next to Peet’s claim of arrest without probable cause.
2. Peet is Entitled to Summary Judgment on His Claim of Arrest Without Probable Cause a. Lack of Probable Cause
The district court held that Peet’s admission that he was present at the Coney Island restaurant on the night in question was sufficient, when coupled with Wilson’s statements, to establish probable cause for Peet’s arrest. As discussed in the next section, the majority affirms the district court’s order granting summary judgment in favor of Pearson, albeit for a different reason.
The majority opinion states that, “Investigator Pearson identified the plaintiffs, Dennis Peet and Jeemell Spencer, as suspected accomplices by relying, primarily, on Spencer’s pager number, which an eye witness, Feanda Wilson, provided.” Maj. Op. Section I. This is not entirely correct. Pearson identified Spencer as a suspect based on Spencer’s pager number, but Pearson had no evidence that would have justified Peet’s arrest. In fact, at his deposition, Pearson testified that he did not know what probable cause existed for Peet’s arrest, other than, “[h]e could have been put in the system as wanted in regards to questioning to a homicide if that goes into the system.” J.A. at 363. Peet testified that he was arrested as soon as he acknowledged that he had witnessed the robbery at the Coney Island restaurant. J.A. at 314. Peet’s admission that he was present at the Coney Island restaurant on the night in question is, of course, insufficient to establish probable cause for his arrest. United States v. Castro-Gaxiola, 479 F.3d 579, 583 (8th Cir.2007).
In my opinion, no reasonable jury could find that probable cause existed for Peet’s arrest. None of the witness statements, including Wilson’s, incriminates Peet. Wilson did not identify Peet by name and, as noted earlier, her identification of Peet during the lineup occurred after his arrest and is therefore irrelevant to the probable cause determination. While the record shows that Peet was arrested within a few *576hours of Spencer’s arrest, absolutely nothing in the record indicates how the police came to suspect that it was Peet who was with Spencer on the night in question. Moreover, as noted earlier, although Wilson stated that the perpetrators left the scene in a Ford F150 pick-up truck, Peet was arrested while possessing a Dodge Ram pick-up truck. For these reasons, as well as those discussed earlier, I believe that, at the time of Peet’s arrest, the police clearly lacked probable cause to believe that he had committed a crime, and that no reasonable jury could find otherwise. I would therefore reverse the district court’s order granting Pearson’s motion for summary judgment and remand with instructions to enter summary judgment in favor of Peet on Peet’s cross-motion for summary judgment.
b. Pearson’s Liability for Peet’s Wrongful Arrest
The district court acknowledged that there was a genuine issue of material fact concerning “Pearson’s alleged omissions and mischaracterizations regarding Bra-cey’s and Anderson’s statements,” but found that Peet’s admission that he was present during the robbery, coupled with Wilson’s statements, established probable cause for his arrest. J.A. at 46-49. On appeal, Peet challenges this holding. The majority, however, avoids the probable cause issue, affirming the district court for an entirely different reason.
The majority opinion affirms the summary judgment against Peet for the reason that, “the record does not reflect that Pearson participated in the arrest of Peet. His deposition says that he did not, his progress notes do not mention it, and we are directed to no contrary testimony.” Maj. Op. Section III. The majority raises this issue for the first time in this case.7 The record, in my opinion, does not support the majority’s argument that Pearson did not participate in Peet’s arrest.
First, it is undisputed that Pearson, an investigator with the Homicide Squad, received this case at 8:00 A.M. following the murder of Byrd, and that he was the sole person in charge of the investigation that culminated in his investigation report and request for an arrest warrant. He prepared detailed notes of the progress of his investigation, J.A. at 372-377, and according to the Appellees’ own brief, Pearson prepared the warrant request and submitted it to the Wayne County Prosecutor’s Office which, in turn, submitted it to a judge for the issuance of the arrest warrant. Appellee’s Brief at 9-10.
Second, while there is no evidence that Pearson himself was physically present when Officer Amos arrested Peet, it is inconceivable that Amos would take it upon himself to arrest Peet without being instructed to do so by Pearson, who was in charge of the investigation, or without Pearson’s knowledge and approval. Moreover, Peet was promptly taken by Officer Amos to the police station where Pearson himself was waiting to conduct a lineup that included Peet. J.A. at 156-158.
Third, Pearson never testified that he did not participate in Peet’s arrest. Pearson simply testified that he “wasn’t with him when he was arrested” and “I didn’t lock him up.” J.A. at 363. The person in charge of a murder investigation is not expected to be physically present at every arrest made during the course of the investigation, but Pearson’s absence does not necessarily relieve him from liability for a *577wrongful arrest that, even if not directed by him, was obviously approved by him.
Fourth, the fact that Pearson’s Progress Notes do not mention that Pearson directed Peet’s arrest and failed to show Pearson being present at Peet’s arrest does not, of course, mean that Pearson had nothing to do with Peet’s arrest. The overwhelming and uncontradicted evidence shows that it was Pearson who was in the commander’s seat, the man in charge of the investigation, the person who was waiting for Amos to bring Peet to the police station so that Feanda Wilson could identify Peet in a lineup.
Fifth, there is no “contrary testimony” to Pearson’s testimony that he was not present when Amos arrested Peet, because that fact is not disputed. It is also not disputed that Pearson supervised the investigation, noted Peet’s arrest in his Progress Notes, and arranged for the lineup promptly after Peet’s arrest.
Pearson concededly cannot be held liable for Peet’s arrest by Amos on a respondeat superior basis, but he can be held liable, as the person in charge of the investigation that included Peet’s arrest, if he “at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.” Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir.1982).
There was absolutely no evidence of probable cause for the arrest of Peet. He was arrested solely on his statement that he had been at the scene of the crime; yet, he was immediately handcuffed and taken to the jail where Pearson was waiting for him so he could be placed in a lineup with the hope that Feanda Wilson would identify him. Pearson had no knowledge of any facts that would justify Peet’s arrest, but he nevertheless, at the very least, “implicitly authorized, approved, or knowingly acquiesced” in the warrantless arrest.
D. Qualified Immunity
Neither the district court nor the majority reaches the issue of qualified immunity because they find that Pearson is entitled to summary judgment on the merits of plaintiffs’ claims of unlawful arrest. Since I reach the contrary conclusion, a brief discussion of qualified immunity is warranted. “Qualified immunity is an affirmative defense that shields government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Estate of Carter v. Detroit, 408 F.3d 305, 310 (6th Cir.2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). As the Supreme Court explained in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), qualified immunity involves a two-step inquiry. First, the court must determine whether the facts, viewed in the light most favorable to the plaintiff, show that a constitutional violation has occurred. Second, the court must determine whether the constitutional right was clearly established. Id. at 201, 121 S.Ct. 2151.
I would find that Pearson is not entitled to qualified immunity on plaintiffs’ claims of arrest without probable cause. For all of the reasons previously discussed, I would find that, viewed in the light most favorable to the plaintiffs, there is abundant evidence that a Fourth Amendment violation occurred. Pearson, in his report submitted in connection with the warrant request, knowingly and deliberately, or with a reckless disregard for the truth, made false statements and omissions that were material to a determination of probable cause. As this court held in Hinch-man, this is “of course patently unconstitutional.” 312 F.3d at 205-06. Once those *578false and misleading statements are omitted and the omitted exculpatory evidence is included, it is my opinion that no reasonably competent police officer would have believed that probable cause existed to believe that Spencer and Peet had committed a crime. Moreover, as this court recently noted in Leonard v. Robinson, 477 F.3d 347 (6th Cir.2007), “[i]t is clearly established that arrest without probable cause violates the Fourth Amendment.” Id. at 355 (quoting Donovan v. Thames, 105 F.3d 291, 297-98 (6th Cir.1997)). Therefore, in my view, Pearson is not entitled to qualified immunity on plaintiffs’ § 1983 claims for unlawful arrest.
E. Municipal Liability for Peet’s Arrest
Peet’s First Amended Complaint alleged that the City of Detroit should be held liable for his unlawful arrest because, in part, the City had “a custom or policy of arresting witnesses to get them to cooperate.” J.A. at 29. Peet claims that he was arrested solely because he was a witness to a crime. According to Peet’s testimony, after he was approached by the police and identified himself as Dennis Peet, they asked him if he had witnessed a crime that was committed at the Coney Island restaurant. When Peet replied, “Yes, I seen some guy get robbed up there,” he was immediately handcuffed and taken to jail. J.A. at 314.
The district court granted summary judgment in favor of the City of Detroit, holding that plaintiffs could not complain about the alleged unconstitutional arrests and treatment of other persons who were also questioned in connection with Byrd’s murder. With respect to plaintiff Peet, the court found that “the Detroit Police Department had a probable cause to arrest Peet as a suspect following Miss Wilson’s statement ... and as such the claims about the Detroit Police Department’s policies and practices regarding the arrests of witnesses in murder cases are not implicated here.” J.A. at 461-462.
The majority affirms the district court’s decision granting summary judgment in favor of the City, “because Peet has not produced sufficient evidence tending to prove that Detroit tolerated a custom of federal rights violations that could have caused Peet to be arrested without probable cause.” Maj. Op. Section III. The majority notes that there is evidence that, like Peet, two other persons were arrested as witnesses to the crime and threatened with continued detention or criminal charges if they did not implicate Spencer and Peet in the murder. The majority finds that these three incidents, all related to this case, are insufficient to establish a policy or custom on the part of the City.
The majority does not consider other evidence that, at the time of Peet’s arrest, the City of Detroit had an established practice of arresting witnesses to major crimes. Plaintiffs submitted the deposition testimony of Sergeant Felix Kirk of the Detroit Police Department, who testified in the case of Taylor v. City of Detroit, 368 F.Supp.2d 676, filed in the Eastern District of Michigan. Kirk testified that the Department was recently forced to change its policy involving “illegal detention of witnesses and the arrest of witnesses.” J.A. at 440. In that case, the court denied the City’s motion for summary judgment, finding sufficient evidence that the police department had a “custom or policy of unconstitutional conduct.” See Taylor v. City of Detroit, 368 F.Supp.2d 676, 692 (E.D.Mich.2005).
Construing all of this evidence in the light most favorable to the plaintiff, a reasonable jury could find that the City’s policy or practice of arresting witnesses to crimes was the moving force behind Peet’s *579unlawful arrest. I would therefore reverse the district court’s order granting summary judgment in favor of the City on Peet’s claim of unlawful arrest.
II. Malicious Prosecution Claims
A. The Elements of a Tort Claim of Malicious Prosecution
1. Common Law Tort
The elements of the common law claims of false arrest and malicious prosecution are clearly different. A state law claim of false arrest is based simply on an absence of probable cause for the arrest. A state law claim of malicious prosecution, in this case under Michigan law, requires proof:
(1) that the defendant has initiated a criminal prosecution against him, (2) that the criminal proceedings terminated in his favor, (3) that the private person who instituted or maintained the prosecution lacked probable cause for his actions, and (4) that the action was undertaken with malice or a purpose in instituting the criminal claim other than bringing the offender to justice.
Peterson Novelties, Inc. v. City of Berkley, 259 Mich.App. 1, 672 N.W.2d 351 (2003) (quoting Matthews v. Blue Cross & Blue Shield of Mich., 456 Mich. 365, 572 N.W.2d 603 (1998)).
2. Constitutional Tort
In Spurlock v. Satterfield, 167 F.3d 995, 1005 (6th Cir.1999), this court held that fabricating evidence and manufacturing probable cause to unlawfully detain a suspect constituted a Fourth Amendment violation. With the exception of one panel’s decision in Frantz v. Village of Bradford, 245 F.3d 869 (6th Cir.2001), the law in this circuit is uniform and well established that a malicious prosecution claim can be based on-the Fourth Amendment, and that prosecution without probable cause constitutes a violation of that Amendment. In Barnes v. Wright, 449 F.3d 709 (6th Cir.2006), the court stated:
We “recognize a separate constitutionally cognizable claim of malicious prosecution under the Fourth Amendment.” Thacker v. City of Columbus, 328 F.3d 244, 259 (6th Cir.2003). Such a claim encompasses wrongful investigation, prosecution, conviction, and incarceration. Id. at 258 (citing Spurlock, 167 F.3d at 1005-07).
Id. at 715-16. See also Gregory v. City of Louisville, 444 F.3d 725, 749 (6th Cir.2006) (“continued detention without probable cause is an actionable Fourth Amendment injury under § 1983”);8 Bielefeld v. Haines, 192 Fed.Appx. 516, 520 (6th Cir.2006) (“this circuit has recognized a Section 1983 claim for malicious prosecution based on the Fourth Amendment”); Doyle v. McFadden, 182 Fed.Appx. 506, 509 (6th Cir.2006).
While it is clear that a malicious prosecution claim is cognizable under § 1983 as a Fourth Amendment violation, our circuit has not yet defined all of the elements of this constitutional tort. In Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir.2007), the court stated:
This court has recognized a § 1983 claim for malicious prosecution arising under the Fourth Amendment, but the contours of such a claim remain uncertain. Wallace, 127 S.Ct. at 1096, n. 2; McKin*580ley v. City of Mansfield, 404 F.3d 418, 444-45 (6th Cir.2005), cert. denied, 546 U.S. 1090, 126 S.Ct. 1026, 163 L.Ed.2d 854 (2006); Darrah v. City of Oak Park, 255 F.3d 301, 308-12 (6th Cir.2001). What is certain, however, is that such a claim fails when there was probable cause to prosecute, or when the defendant did not make, influence, or participate in the decision to prosecute. McKinley, 404 F.3d at 444-45; Darrah, 255 F.3d at 312; Skousen v. Brighton High Sch., 305 F.3d 520, 529 (6th Cir.2002).
See also Thacker, 328 F.3d at 259 (“[although this Court has yet to resolve the elements of a federal malicious prosecution claim, it is clear that a plaintiff must show, at a minimum, ‘that there was no probable cause to justify [his] arrest and prosecution.’ ”).
In previous decisions of this court, it usually was not necessary to formulate the elements of a federal malicious prosecution claim, because either the plaintiff had failed to show that the prosecution was without probable cause or the plaintiff was estopped from asserting such a claim by reason of a judicial finding of probable cause following a fair evidentiary hearing. In view of the fact that, for the reasons hereafter stated, I believe that a jury question is presented on the issue of probable cause for the plaintiffs’ prosecution and that plaintiffs are not collaterally es-topped from asserting their claims, it appears that this is a ease in which the elements of plaintiffs’ wrongful prosecution claims necessarily need to be considered.
3.Suggested Elements
The dissenting opinion in Frantz proposed the following elements for a constitutional tort claim of malicious prosecution: (1) a seizure within the meaning of the Fourth Amendment by someone not entitled to absolute prosecutorial immunity; (2) objectively unreasonable prosecutorial action taken to bring the plaintiff before the court, independent of any initial physical seizure; and (3) termination of the criminal proceeding in favor of the plaintiff. Frantz, 245 F.3d at 879-80 (Gilman, J., dissenting).
In light of the more recent Sixth Circuit jurisprudence concerning this issue, I would suggest the following elements:
1. The defendant is a person who does not have absolute prosecuto-rial immunity for his or her conduct in the criminal prosecution of the plaintiff;
2. There was no probable cause for the initiation and maintenance of the criminal prosecution of the plaintiff;
3. The defendant intentionally influenced or participated in the initiation or the maintenance of the criminal prosecution of the plaintiff;
4. A person in defendant’s position would have known that the facts and circumstances were not sufficient to justify a reasonable belief that the plaintiff had committed the offense with which the plaintiff was charged; and
5. The criminal prosecution of the plaintiff was subsequently terminated in favor of the plaintiff.
B. Application of the Suggested Elements to the Facts of this Case
There is no question that Pearson has no absolute prosecutorial immunity for his conduct in the criminal prosecution of the plaintiffs, that he intentionally influenced and participated in the initiation and maintenance of the criminal prosecution of the plaintiffs, and that the criminal prosecution *581was subsequently terminated in favor of the plaintiffs. The only questions are whether there was probable cause for the initiation and maintenance of the criminal prosecution of the plaintiffs, and whether a person in Pearson’s position would have known that the facts and circumstances were not sufficient to justify a reasonable belief that the plaintiffs had committed the offenses with which they were charged. In my opinion, these questions in this particular case must be determined by a jury.
The district court found, and I totally agree, that “[tjhere may be enough evidence to create a genuine issue of material fact regarding Pearson’s alleged omissions and mischaracterizations regarding Bra-cey’s and Anderson’s statements.” J.A. at 46. The court nevertheless found, with reference to both questions of probable cause for plaintiffs’ arrests and probable cause to bind plaintiffs over for trial, that “Wilson’s eyewitness report” alone established probable cause. J.A. at 49. For the reasons discussed earlier, I believe that Wilson’s statements made prior to plaintiffs’ arrests, when considered with all of the facts and circumstances known to Pearson at the time of the arrests, were not sufficient, on Pearson’s motion for summary judgment, to establish probable cause for the arrests.
In determining whether probable cause existed for the initiation of criminal proceedings against plaintiffs, however, the court may consider not only the evidence that existed at the time of the arrests but also other evidence gathered before criminal charges were actually filed. Therefore, although Wilson’s eyewitness identification of plaintiffs at the police lineups could not be considered in determining whether probable cause existed at the time plaintiffs were arrested, it may be considered in determining whether probable cause existed to file criminal charges against them, because the lineups took place before Pearson prepared his report and charges were filed. Indeed, the issue of probable cause for the prosecution of plaintiffs essentially hinges on Wilson’s personal identification of them because, as Pearson himself noted in his Progress Notes, her statement was out of line with the statements of all other witnesses.
Wilson’s eyewitness identification at the police lineups, however, does not conclusively establish probable cause. This court has held:
An eyewitness identification will constitute sufficient probable cause “unless ... there is an apparent reason for the officer to believe that the eyewitness ‘was lying, did not accurately describe what he had seen, or was in some fashion mistaken regarding his recollection of the confrontation.’ ” This comports with the general notion that, since eyewitnesses’ statements are based on firsthand observations, they are generally entitled to a presumption of reliability and veracity.
Ahlers v. Schebil, 188 F.3d 365 (6th Cir.1999) (internal citations omitted).
Similarly, in Wilson v. Russo, the court said:
The defendants maintain that a positive identification by a victim is sufficient by itself to establish probable cause that the identified party was the offender. While we agree that a positive identification by a victim witness, without more, would usually be sufficient to establish probable cause, this qualified precept cannot be rendered absolute. Independent exculpatory evidence or substantial evidence of the witness’s own unreliability that is known by the arresting officers could outweigh the identification such that probable cause would not ex*582ist. Each case must therefore be examined on its facts.
212 F.3d at 790 (emphasis added).
For all of the reasons discussed earlier, I believe that Pearson had good reason to believe that Wilson, his key witness, was not a credible witness. It is undisputed that, no later than May 2, 2000, long before the preliminary hearing on May 24, 2000, he came to question her credibility. His Progress Notes on May 2, 2000 indicate that her statement was out of line with those of the other witnesses and he planned for Wilson to take a polygraph test. It is not clear from the record, however, whether he ever communicated this doubt to the prosecutor or to the preliminary hearing judge who bound plaintiffs over for trial or, if he did, when this was done. Pearson himself testified that he did not put that extremely exculpatory fact in his investigative report: “If any of us have any doubtfulness, then we’ll let the prosecutor know maybe on a piece of paper that witness may be questionable, but it never goes into the investigative report.” J.A. at 365. There is absolutely no evidence that Pearson ever noted his doubtfulness “on a piece of paper” given to the prosecutor.9
In my view, if Pearson concealed from the prosecutor his doubts about the credibility of his key witness, or did not make such a disclosure at a time and in a manner for this exculpatory information to be properly given to defense counsel and considered by the magistrate judge at the preliminary hearing, Wilson’s eyewitness identification of the plaintiffs at the police lineups should be given little or no consideration in determining whether there was, in fact, probable cause for the initiation and maintenance of the criminal prosecution against plaintiffs.
Moreover, as noted in Wilson v. Russo, the substantial evidence of Wilson’s unreliability and the other independent exculpatory evidence known to Pearson could well outweigh the value of Wilson’s eyewitness identification such that probable cause would not exist. 212 F.3d at 790. At the very least, this is a question for a jury and not for the judge on defendants’ motion for summary judgment.
With regard to the remaining suggested element, it is clearly, in my view, also a jury question as to whether a police officer in Pearson’s position would have known that the facts and circumstances were not sufficient to justify a reasonable belief that the plaintiffs had committed the offenses with which they were charged.
While, in my opinion, construing the evidence in the light most favorable to the plaintiffs, it was error for the district court to find that Wilson’s “eyewitness report” alone was sufficient to establish probable cause for the arrest and prosecution of plaintiffs, there remains the issue of whether plaintiffs are estopped from asserting their claims for malicious prosecution because of the preliminary hearing finding of probable cause.
C. Preliminary Hearing Finding of Probable Cause to Hold Defendants for Trial as Collateral Es-toppel on the Issue of Probable Cause for the Prosecution
The majority finds that the district court “properly granted summary judgment to the officers as to Spencer’s claim for malicious prosecution,” because “Spencer has the problem of the judicial determination of probable cause following the evidentiary preliminary hearing.” Maj. Op. Section *58311(C).10 The majority finds that because there is no evidence that Pearson or the county prosecutor supplied the magistrate judge at that hearing with any false information to establish probable cause, plaintiffs are collaterally estopped from relit-igating the issue.
For the following reasons, I do not believe that the preliminary hearing in this case judicially precludes plaintiffs from pursuing their claims that the initiation and maintenance of the criminal proceedings following their arrests were without probable cause.
First, under Michigan law of collateral estoppel, one of the four critical requirements is that “the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the earlier proceeding.” Darrah, 255 F.3d at 311. Based on the limited evidence in the record, I believe that it has not been shown that plaintiffs had a full and fair opportunity to litigate the issue of probable cause at the evidentiary preliminary hearing held on May 24, 2000.
As noted earlier, it is not clear whether Pearson ever conveyed his doubts concerning the credibility of his key witness, Fe-anda Wilson, to the prosecutor or to anyone else prior to that hearing. According to plaintiffs, after Pearson came to question Wilson’s credibility, he did not go to the prosecutor. “He does nothing about that he doesn’t come forth, he doesn’t go to the prosecutor, he doesn’t tell anybody about it.” J.A. at 467. It is also alleged, and not denied, that this exculpatory information was not presented at the preliminary hearing. Appellants’ Brief p. 29.
It is also difficult to tell, based on the limited record before us, what exculpatory evidence, if any, was made available and was presented at the preliminary hearing.11 Along with the request for an arrest warrant, Pearson allegedly “turned over all inculpatory and exculpatory statements to the prosecutor and to the defense attorney.” J.A. at 462. However, many witness statements were not taken until after the date the warrant request was prepared. J.A. at 471. The record on appeal does not indicate when these additional statements, some of which were clearly exculpatory, were turned over. At the hearing on the motions for summary judgment, counsel for plaintiffs indicated that some of this evidence, which was within Pearson’s exclusive control, was not made available until the criminal trial. J.A. at 468. Plaintiffs apparently subpoenaed McGlory and Bracey to testify at the preliminary hearing, but these witnesses failed to appear. J.A. at 276. According to plaintiffs — and it does not appear to be denied by Pearson:
We didn’t even have the opportunity to put on McGlory or Bracey at the preliminary exam. The judge didn’t allow us. They weren’t subpoenaed by the prosecutor. There wasn’t a continuance granted. We didn’t have the opportunity to present Latham at the preliminary exam. We didn’t have an opportunity to present Marion Benton or John Anderson at the preliminary exam. We didn’t have the opportunity to present Ken Smith at the preliminary exam.
J.A. at 469. Under these circumstances, I believe that there are genuine issues of material fact as to whether plaintiffs had a “full and fair” preliminary hearing.
*584Second, we review the district court’s grant of summary judgment de novo. Sperle v. Michigan Dep’t of Corr., 297 F.3d 483, 490 (6th Cir.2002). In accordance with the established precedents of this court, in a § 1983 action the existence of probable cause is a question of fact to be determined by a jury, unless there is only one reasonable determination possible. Gregory, 444 F.3d at 743; Gardenhire, 205 F.3d at 315. Moreover, we must review the evidence in a light most favorable to the plaintiffs and draw all reasonable inferences in their favor. Voyticky v. Village of Timberlake, 412 F.3d 669, 675 (6th Cir.2005). Under the circumstances of this particular case, in my opinion, there is, at the very least, a jury question presented as to both the probable cause for plaintiffs’ arrests and probable cause for plaintiffs’ prosecutions, both in alleged violation of the Fourth Amendment to the United States Constitution.
D. Qualified Immunity
Finally, it is necessary to apply the two-step inquiry discussed above to determine whether Pearson is entitled to qualified immunity on plaintiffs’ claims of wrongful prosecution. Viewing the evidence in a light most favorable to plaintiffs, Pearson violated their Fourth Amendment rights by his conduct in influencing and participating in the decision to prosecute them. See Spurlock, 167 F.3d at 1005 (fabricating evidence and manufacturing probable cause, and wrongfully investigating and prosecuting the plaintiffs constituted a violation of the Fourth Amendment). Moreover, as the court noted in Spurlock, the right to be free from malicious prosecution is clearly established under the Fourth Amendment. Id. at 1006 (citing Smith v. Williams, 78 F.3d 585, 1996 WL 99329, at *5 (6th Cir.1996)). Because Pearson’s conduct was not objectively reasonable in light of clearly established law, he is not entitled to qualified immunity on plaintiffs’ claims of wrongful prosecution.
III. Conclusions
My conclusions are that:
1. The summary judgment in favor of Pearson and the City of Detroit on plaintiffs’ claims of being arrested without probable cause should be reversed as to both Spencer and Peet.
2. The case should be remanded to the district court for further proceedings on plaintiffs’ claims of being arrested without probable cause because:
a. No jury issue is presented as to the arrest of Peet without probable cause. The undisputed facts show that Peet was illegally arrested without a warrant and that he is entitled to summary judgment against Pearson on this claim.
b. There is a genuine issue of material fact as to whether Peet’s illegal arrest was caused by the City of Detroit’s policy of arresting witnesses to crimes.
c. A jury issue of whether there was probable cause for Spencer’s war-rantless arrest is presented by the facts and circumstances of the case in view of the false inculpato-ry statements and the omitted exculpatory statements made by Pearson in his investigative report submitted to the prosecuting attorney and, in turn, to the judge.
d. Pearson is not entitled to qualified immunity on plaintiffs’ claims of arrest without probable cause.
3. The case should be remanded to the district court for further proceedings on plaintiffs’ claims of being wrongfully prosecuted because:
*585a. There is a genuine issue of material fact as to whether there was probable cause for the prosecution of plaintiffs; and
b. There is a genuine issue of material fact as to whether plaintiffs are estopped from asserting their claims of wrongful prosecution.
c. Pearson is not entitled to qualified immunity on plaintiffs’ claims of wrongful prosecution.
For the above reasons, I respectfully dissent.
. All citations to the Joint Appendix refer to the Joint Appendix submitted in connection with Peet v. City of Detroit, 2007 WL 2768298.
. The majority contends that Spencer and Peet failed to raise this argument in their complaints. See Maj. Op. Section 11(B) n. 2. Although stated in the context of any claim of qualified immunity by defendants, plaintiffs did allege the unlawful conduct of defendants by reasons of "their non-testimonial acts of misstating their Investigator’s Report to influence the appearance of Plaintiff's guilt so that a warrant could issue and in providing false evidence to a magistrate so that probable cause could be established.” First Am. Compl. ¶ 50, J.A. at 26.
. "An assertion is made with reckless disregard when 'viewing all the evidence, the affi-ant ... entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.’ " Wilson, 212 F.3d at 788 (quoting United States v. Clapp, 46 F.3d 795, 801 n. 6 (8th Cir.1995)). Omissions are made with reckless disregard if an officer withholds "a fact in his ken” that "any reasonable person would have known ... is the kind of thing the judge would wish to know.” Wilson, 212 F.3d at 788 (quoting United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.1993)).
. Notably, the physical descriptions of the perpetrators given by these witnesses would comfortably fit a large number of African-American men.
. In footnote 2 of the majority opinion, the majority contends that there are two "temporal” problems with the dissent’s position. First, the majority claims that there is no evidence that Pearson had any doubt about the culpability of the plaintiffs prior to his submission of the warrant request. To the contrary, as noted above, Pearson admitted at his deposition that he might have had doubts about Wilson's truthfulness even before the warrant was signed. J.A. at 364-65. Second, the majority contends that “the dissent faults the investigators for mentioning Wilson’s eyewitness identification in their warrant request.” This is not correct. The dissent faults Pearson for including this information without disclosing to the judge that Wilson’s identification took place after Spencer and Peet had already been arrested. Absent this disclosure, the judge was misled to believe that Wilson’s eyewitness identification took place before Spencer and Peet were taken into custody and thus considered identification evidence that did not exist at the moment of plaintiffs’ arrests.
The dissent does not fault Pearson for failing "to include post-ttwrani exculpatory evidence.” Indeed, if evidence becomes known for the first time after the warrant request has been submitted, it obviously could not have been included in that request. The dissent admits that it does fault Pearson “for including post-arrest incriminatory evidence,” because such evidence is also irrelevant to a *574determination of whether probable cause existed at the moment of the arrests. The majority further argues that this post-arrest evidence "did not clearly exonerate Spencer and Peet.” Apart from the fact that it is not our responsibility to judge the guilt or the innocence of Spencer and Peet — whether certain evidence does or does not exonerate them— the point is that inculpatory events post-arrest and prior to warrant, such as Wilson’s line-up identification, should not be used for the purpose of obtaining a finding of probable cause for their arrests.
Finally, I do not feel that it is true, as the majority contends, that "the dissent demands a level of perfection that would be difficult for most police departments to meet.” I do not believe that it is unreasonable to expect law enforcement officers seeking a probable cause determination from a judge following a war-rantless arrest to refrain from submitting false and misleading statements and omitting exculpatory evidence known to the officer. I am confident that improper conduct of this nature rarely happens. However, when it does, as in this case, there should be a remedy for an arrestee whose Fourth Amendment right to a fair and reliable determination of probable cause has been violated.
. Alhalmi's statement is not part of the record.
. In their Motion for Summary Judgment, the Appellees themselves agreed that a claim was stated against Pearson. "With the exception of Defendant Pearson, Plaintiff fails to state a claim against the other defendant police officers.” J.A. at 108.
. To emphasize that this constitutional tort is based on the Fourth Amendment and not on any due process grounds, the court said, "[sleeking clarity in language, we decline to style Plaintiffs cause of action as an action for ‘malicious prosecution’ under § 1983. Rather, we characterize the cause of action simply as the right under the Fourth Amendment to be free from continued detention without probable cause.” Gregory, 444 F.3d at 750.
. At some point, Pearson apparently turned his Progress Notes over to the prosecutor, but it is not clear when he did so. J.A. at 44, J.A. at 472.
. It is a problem shared by Peet and Spencer; both made claims of malicious prosecution and both were bound over for trial following the preliminary hearing.
. The record on appeal includes only 11 pages of a 78-page transcript. J.A. at 276-286.