United States Court of Appeals
For the First Circuit
No. 04-1016
CASILDA ACOSTA, ETC., ET AL.,
Plaintiffs, Appellants,
v.
AMES DEPARTMENT STORES, INC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Bruce P. Gladstein on brief for appellants.
Marc DeSisto, Kathleen M. Daniels and DeSisto Law on brief for
appellees.
September 22, 2004
SELYA, Circuit Judge. Plaintiff-appellant Casilda Acosta
invites us to vacate a summary judgment order terminating her suit
for false arrest under, inter alia, 42 U.S.C. § 1983.1 Discerning
no error in the district court's disposition of the matter, we
decline Acosta's invitation.
The facts are uncomplicated. Glenn Powers worked as a
store detective for Ames Department Stores, Inc. (Ames). On
October 18, 1999, he called the Middletown, Rhode Island, police
department to report a shoplifting at a local Ames emporium.
Officer Kelly Mitchell responded to the call and Powers informed
her that the appellant, her sons, and a group of other persons had
entered the shop that evening. He watched the appellant take two
jackets, emblazoned with the logo of the New England Patriots, from
a rack and outfit her sons with them. He then surveilled the trio
as they walked around the store and proceeded through the checkout
line without making any attempt to pay for the jackets.
Powers stopped the suspected shoplifters as soon as they
left the premises. When he confronted them with the alleged
larceny, one of the boys admitted that he had donned the jacket in
the store.
1
Casilda Acosta's sons, Kenny and Kevin, are also parties.
Their claims are largely derivative, however, and for ease in
reference we treat Casilda as if she were the sole plaintiff and
appellant. Our opinion is, of course, binding on all three.
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Once she had interviewed Powers, Officer Mitchell talked
with the appellant. She found communication difficult because of
a language barrier; Mitchell spoke no Spanish and the appellant
lacked fluency in English. Nonetheless, Mitchell was able to glean
the essence of the appellant's claim: that she had purchased the
jackets on an earlier shopping trip. To bolster that claim, the
appellant gave Mitchell a layaway receipt dated October 5, 1999.
This receipt indicated that ten items had been rung up (including
two labeled "PATRIOTS OUT" at a sale price of $22.41 each); that
$49.94 had been paid toward a previous balance; and that the
layaway was complete. The receipt did not indicate what "PATRIOTS
OUT" meant.
Officer Mitchell then inspected the jackets. She
observed a wet spot on one of them, consistent with what might
appear if soda or juice had just been spilled on it. She also
found a used tissue in a jacket pocket. At that point, Mitchell
took the appellant into custody and charged her with shoplifting.
Although at least one other officer had by then responded to the
scene, the police did not converse with any other Ames personnel
before effectuating the arrest. By the same token, they did not
interview other customers (not even those persons who had
originally accompanied the appellant to the store).
For reasons that need not concern us, the criminal
charges were subsequently dropped. The incident, however, was not
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forgotten. The appellant brought suit in a Rhode Island state
court alleging seventeen different causes of action against a
myriad of defendants. The complaint, as amended, named Ames,
Powers, the Town of Middletown, the Middletown police department,
the town's finance director, and several police officers (among
them, Officer Mitchell) as defendants.2 The municipal defendants
removed the case to the United States District Court for the
District of Rhode Island. See 28 U.S.C. §§ 1331, 1441(b).
In due course, the municipal defendants moved for summary
judgment. See Fed. R. Civ. P. 56. The district court found
probable cause for the arrest and, accordingly, granted the motion.
This appeal ensued.
The summary judgment device enables a court "to pierce
the boilerplate of the pleadings and assay the parties' proof in
order to determine whether trial is actually required." Wynne v.
Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992). That
device functions successfully when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment
2
Ames and Powers made only cameo appearances — Ames went into
bankruptcy and Powers was never served — so we eschew any further
reference to them, instead treating the municipal defendants as if
they were the sole targets of the suit. See, e.g., Sunview Condo.
Ass'n v. Flexel Int'l, Ltd., 116 F.3d 962, 963 n.1 (1st Cir. 1997)
(taking a similar approach in analogous circumstances).
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as a matter of law." Fed. R. Civ. P. 56(c). Faced with a properly
documented summary judgment motion, the nonmovant can thwart the
motion only by showing through materials of evidentiary quality
that a genuine dispute exists about some material fact. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Medina-Munoz
v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). This
evidence "must have substance in the sense that it limns differing
versions of the truth which a factfinder must resolve at an ensuing
trial." Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st
Cir. 1989).
In assessing such a proffer, an inquiring court must
resolve all evidentiary conflicts and draw all reasonable
inferences in the nonmovant's favor. Id. If the proffer, viewed
through this prism, "is merely colorable, or is not significantly
probative, summary judgment may be granted." Anderson, 477 U.S. at
249-50 (internal citations omitted). In an ensuing appeal, we
afford plenary review, Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822
(1st Cir. 1991); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st
Cir. 1990), utilizing the same criteria as the trial court, Perez
v. Volvo Car Corp., 247 F.3d 303, 310 (1st Cir. 2001); Werme v.
Merrill, 84 F.3d 479, 482 (1st Cir. 1996).
We turn now from the general to the particular. Before
us, the appellant mounts a four-pronged attack on the district
court's probable cause determination. She contends (i) that the
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existence vel non of probable cause is always for the jury (and,
thus, not susceptible to summary judgment); (ii) that genuine
issues of material fact preclude judicial resolution of the
probable cause question here; (iii) that even absent such a
dispute, the facts of record do not support the lower court's
probable cause determination; and (iv) that, in all events, the
determination was infirm because further investigation would have
dispelled the basis for it. We discuss these contentions
sequentially.
With respect to her first asseveration, the appellant
relies upon our decision in B.C.R. Transport Co. v. Fontaine, 727
F.2d 7 (1st Cir. 1984). That reliance is mislaid. In B.C.R.
Transport, the defendant argued that probable cause necessarily
existed because a warrant, based upon information supplied by an
alleged victim, had been obtained. Id. at 9-10. We rejected that
broad proposition, describing the probable cause inquiry as
situation-specific. See id. at 10 (explaining that "whether or not
probable cause exists . . . invariably depends on the particular
facts and circumstances of [each] case"). We went on to note that
the alleged victim was disoriented and ranting, and, accordingly,
the arresting officers needed to engage in further inquiry before
relying on that account to find probable cause. See id. at 10-11.
The appellant tries to ride this horse well past the
boundary that we staked out in B.C.R. Transport. Although we ruled
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there that the issue of probable cause was for the jury, that
ruling was not, as the appellant suggests, intended to have
universal applicability. The outcome in B.C.R. Transport
represented the exception, not the rule. More relevant here is our
recent observation that "it is pointless to submit . . . [a]
probable cause question[] to the jury at all unless the facts are
disputed." Bolton v. Taylor, 367 F.3d 5, 8 n.2 (1st Cir. 2004);
see also Ornelas v. United States, 517 U.S. 690, 696 (1996)
(explaining that when the relevant facts leading to the officer's
involvement are established, probable cause is a "mixed question of
law and fact" suitable for determination by the court); Bell v.
Irwin, 321 F.3d 637, 640 (7th Cir.) (holding that the existence of
probable cause is ordinarily for the court, not for the jury),
cert. denied, 124 S. Ct. 84 (2003).
In the case at hand, the material facts — what the police
knew at the moment of the arrest, the source of their knowledge,
and the leads that they pursued or eschewed — are not in dispute.
When that is so, the existence vel non of probable cause ordinarily
is amenable to summary judgment. See, e.g., Roche v. John Hancock
Mut. Life Ins. Co., 81 F.3d 249, 254-56 (1st Cir. 1996) (affirming
the entry of summary judgment in such a situation). The question,
then, is whether brevis disposition was appropriate on the facts of
this case.
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The appellant's second argument begins the dialogue on
that question. She hangs her hat primarily on the layaway receipt.
This need not detain us. The dispute over the meaning of the
layaway receipt is, at bottom, merely whether the receipt fairly
indicated to a reasonable officer that the appellant purchased two
Patriots jackets on October 5. Even were we to resolve this
question in the appellant's favor, the fact that she bought two
jackets on October 5 would not change the outcome of the probable
cause inquiry.
There are at least two conflicting inferences that could
be drawn from such a fact. One possibility is that the appellant
bought the coats in question and did not steal them. Another is
that she bought two other coats on October 5, and was using the
receipt as a cover for a theft on October 18. To resolve the issue
of probable cause, it does not matter which inference is correct.
It is sufficient that a reasonable officer in possession of this
information might nonetheless find it likely that the store
detective's eyewitness account was true and that the appellant had
committed a crime. See United States v. Figueroa, 818 F.2d 1020,
1023-24 (1st Cir. 1987). In light of Powers's insistence that he
personally witnessed the theft, the exculpatory value of the
receipt is simply insufficient for us to conclude that Mitchell
could not reasonably have found probable cause.
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The appellant's third line of attack directly challenges
the adequacy of the evidence on which the district court's probable
cause determination was based. That challenge requires us to limn
the analytic framework for probable cause determinations and then
to apply that framework.
When there is probable cause for an arrest, the Fourth
Amendment's prohibition against unreasonable searches and seizures
is not offended. Atwater v. Lago Vista, 532 U.S. 318, 354 (2001);
Roche, 81 F.3d at 254. Probable cause for an arrest exists when
the arresting officer, acting upon apparently trustworthy
information, reasonably concludes that a crime has been (or is
about to be) committed and that the putative arrestee likely is one
of the perpetrators. See Beck v. Ohio, 379 U.S. 89, 91 (1964);
Figueroa, 818 F.2d at 1023. Courts use an objective standard when
determining the existence of probable cause. Valente v. Wallace,
332 F.3d 30, 32 (1st Cir. 2003); Roche, 81 F.3d at 254. The focus
is not on certitude, but, rather, on the likelihood of criminal
activity. See Illinois v. Gates, 462 U.S. 213, 235 (1983);
Spinelli v. United States, 393 U.S. 410, 419 (1969); United States
v. Winchenbach, 197 F.3d 548, 555 (1st Cir. 1999). Finally, courts
must apply these principles fluidly to the totality of the extant
circumstances. Gates, 462 U.S. at 232 & n.7; Winchenbach, 197 F.3d
at 555.
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Here, the existence of probable cause depends, in the
first instance, upon the cogency of the account given by the store
detective (Powers). Taken at face value, Powers's tale certainly
gave Officer Mitchell reason to believe that a crime had been
committed and that the appellant had committed it. The appellant
nonetheless argues that Mitchell should have deemed Powers's
statements unreliable (or, at least, suspect) because she had never
met him before and, thus, could not accurately assess his
credibility. That sets the bar too high.
Victims' complaints are a prime source of investigatory
information for police officers. In the absence of circumstances
that would raise a reasonably prudent officer's antennae, there is
no requirement that the officer corroborate every aspect of every
complaint with extrinsic information. The uncorroborated testimony
of a victim or other percipient witness, standing alone, ordinarily
can support a finding of probable cause. See, e.g., Forest v.
Pawtucket Police Dep't, ___ F.3d ___, ___ (1st Cir. 2004) [No. 03-
2652, slip op. at 10] (stating that information furnished by a
victim is generally considered sufficiently reliable to support a
finding of probable cause); B.C.R. Transport, 727 F.2d at 10
(same). Although the victim here is a corporation communicating
through its agent, the agent held himself out to be an eyewitness
to the pilferage and rendered a coherent, facially plausible
account. Consequently, we see no reason to treat Ames's complaint
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of a crime, related through Powers, differently from any other
complaint by a victim.
This conclusion is reinforced by Powers's status as a
store detective. At least one respected court has gone so far as
to recognize that, in the retail context, private security officers
are inherently reliable. See Gramemos v. Jewel Cos., 797 F.2d 432,
439 (7th Cir. 1986) (noting that several disincentives stemming
from false crime reports collectively provide reason to infer that
store detectives are reliable). While we hesitate to indulge in
sweeping generalizations, we think that in this case Officer
Mitchell had every reason to believe that the store's security
officer was being truthful.
In an effort to undermine the credibility of Powers's
statements, the appellant points to three facts: the layaway
receipt, the absence of any evidence of empty coat hangers or price
tags for the jackets, and the "used" appearance of one of the
jackets. In our estimation, none of these facts is telling. As
noted above, the layaway receipt is at best equivocal. As for the
hangers and price tags, Mitchell never thought to ask for them —
and it is therefore speculative whether or not they could have been
found. And, finally, the appearance of the spotted jacket actually
may cut the other way: the fact that the spots were wet
contradicts the appellant's suggestion that they were old. The
used kleenex in the pocket tells us nothing.
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To cinch matters, the totality of the circumstances
includes far more than these isolated tidbits. Officer Mitchell
spoke first-hand with the complaining witness, who plausibly
claimed to have observed the entire incident. Mitchell had no
reason to doubt that claim. She then was told that one of the
jacket-wearers had admitted to having donned the jacket inside the
store. Mitchell proceeded to speak to the appellant and got the
gist of her story: that she previously had purchased the
merchandise. But the layaway receipt that she proffered was
ambiguous and gave the officer no reason to question Powers's
veracity: he was a percipient witness whose job responsibilities
involved the very sort of observations that he was undertaking.
Hence, there was no reason for Mitchell not to rely on his
eyewitness version of events. When an arresting officer has the
benefit of an apparently credible eyewitness account, the amount of
arguably exculpatory evidence must be substantial before further
investigation can be required as a constitutional matter. The
evidence here, if exculpatory at all, was far from substantial.
The test for probable cause "does not require the
officers' conclusion to be ironclad, or even highly probable.
Their conclusion that probable cause exists need only be
reasonable." Winchenbach, 197 F.3d at 555-56. In this case, the
officer passed that test with flying colors.
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The appellant's last argument depends on a three-part
algorithm. She asserts that even if the investigation that Officer
Mitchell actually conducted created an aura of probable cause, the
district court's determination cannot stand because (i) the police
had a responsibility to continue investigating the matter; (ii)
they failed to do so; and (iii) had they not foregone this duty,
they would have dispelled the aura and learned that there was no
probable cause for an arrest. In particular, the appellant posits
that the police should have interviewed the other Spanish-speaking
persons who had accompanied her to the store, spoken with the store
manager, probed further into the significance (if any) of the
layaway receipt, and hunted for the hangers and price tags.
Probable cause determinations are, virtually by
definition, preliminary and tentative. See, e.g., Barber v. Page,
390 U.S. 719, 725 (1968). Not surprisingly, then, the Supreme
Court has flatly rejected the idea that the police have a standing
obligation to investigate potential defenses before finding
probable cause. See Baker v. McCollan, 443 U.S. 137, 145-46
(1979). Following this lead, we too have disclaimed any unflagging
duty on the part of law enforcement officers to investigate fully
before making a probable cause determination. See, e.g., Franco-de
Jerez v. Burgos, 876 F.2d 1038, 1042 (1st Cir. 1989). While we
have recognized that such a duty may arise in highly idiosyncratic
circumstances, see, e.g., B.C.R. Transport, 727 F.2d at 10-11, we
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have made it clear that an officer normally may terminate her
investigation when she accumulates facts that demonstrate
sufficient probable cause. See, e.g., Forest, ___ F.3d at ___
[slip op. at 12]; Palhava de Varella-Cid v. Boston Five Cents
Savings Bank, 787 F.2d 676, 680-81 (1st Cir. 1986). The case law
in other circuits is to the same effect. See, e.g., Hodgkins v.
Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004); Brodnicki v. City of
Omaha, 75 F.3d 1261, 1264 (8th Cir. 1996).
The rule, then, applicable in the wide mine-run of cases,
is that once a law enforcement officer unearths sufficient facts to
establish probable cause, she has no constitutional duty either to
explore the possibility that exculpatory evidence may exist or to
conduct any further investigation in the hope of finding such
evidence. Because this case is well within the mine-run, we reject
the appellant's asseveration that the absence of a more complete
investigation somehow undercuts the district court's acknowledgment
of probable cause.
This disposes of the appellant's four-pronged attack on
the lower court's probable cause determination. Looking at the
totality of the circumstances known to the police at the time of
the instant arrest, we find no fault with the district court's
conclusion that probable cause existed.
Withal, our odyssey must continue. The court below went
on to rule that the absence of probable cause doomed all the
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appellant's claims. The appellant assigns error to the breadth of
this ukase.
This assignment of error requires us first to parse the
amended complaint. Eight of the counts are directed only at Ames
and Powers, and, thus, need not concern us. See supra note 2. The
remaining nine counts allege the following causes of action against
some or all of the municipal defendants: four counts based on 42
U.S.C. § 1983,3 one count based on false arrest, one count based on
general negligence, two counts charging inflicting of emotional
distress, and one count based on vicarious liability. The two main
section 1983 claims were premised on alleged Fourth Amendment
violations, and so the district court's disposition of those counts
was clearly correct. Given probable cause, there was no
constitutional violation — and without the deprivation of a
constitutional right, those claims cannot proceed. See Roche, 81
F.3d at 254. The false arrest count also fails because a necessary
element of that claim is an illegal arrest. See Mann v. Cannon,
731 F.2d 54, 62 (1st Cir. 1984) (construing Rhode Island law). In
this case, the existence of probable cause rendered the arrest
legal. By like token, in the absence of a false or
unconstitutional arrest, the two other section 1983 counts — both
of which are failure-to-train counts, see supra note 3 —
3
Two of these are "deliberate indifference" counts based on
alleged failures properly to train police officers.
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necessarily founder. See Evans v. Avery, 100 F.3d 1033, 1040 (1st
Cir. 1996) (holding that a municipality cannot be liable for
failure to train under § 1983 absent an underlying constitutional
violation by one of its police officers).
That leaves only a motley of state-law tort counts. A
general negligence count requires a plaintiff to show, at a bare
minimum, a legally cognizable duty and a breach of that duty. See
Mills v. State Sales, Inc., 824 A.2d 461, 467 (R.I. 2003); see also
Welsh Mfg., Div. of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d
436, 440-41 (R.I. 1984). Because the police acted reasonably in
making their probable cause determination and had no duty to
investigate further before arresting the appellant, see text supra,
the appellant has failed to establish the essential elements of her
general negligence claim.
The emotional distress counts fare no better. There has
been no demonstration of the "extreme and outrageous conduct"
necessary to prevail on a claim for intentional infliction of
emotional distress. Jalowy v. Friendly Home, Inc., 818 A.2d 698,
707 (R.I. 2003). There has been no showing of the physical
symptomatology necessary to support a claim of negligent infliction
of emotional distress. See Reilly v. United States, 547 A.2d 894,
899 (R.I. 1988). And as the substantive state-law counts topple,
so too does the count alleging vicarious liability. See Boland v.
Town of Tiverton, 670 A.2d 1245, 1248 (R.I. 1996).
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We need go no further. While we do not minimize the
unfortunate nature of the appellant's experience, there is no
principled way on these facts to hold the municipal defendants
liable in damages. Consequently, the district court's entry of
summary judgment merits our approbation.
Affirmed.
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Acosta v. Ames Department Stores, Inc.
Court: Court of Appeals for the First Circuit
Date filed: 2004-09-22
Citations: 386 F.3d 5
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