United States Court of Appeals
For the First Circuit
No. 04-1761
JOHN E. COX III,
Plaintiff, Appellant,
v.
JOHN HAINEY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Timothy E. Zerillo and Timothy Zerillo Law Offices, LLC on
brief for appellant.
G. Steven Rowe, Attorney General, and William R. Fisher,
Assistant Attorney General, on brief for appellee.
December 1, 2004
SELYA, Circuit Judge. In this case, the district court
entered summary judgment in favor of defendant-appellee John
Hainey, a state trooper, on a false arrest claim under 42 U.S.C. §
1983. Plaintiff-appellant John E. Cox III assigns error to the
court's determination that qualified immunity shielded Hainey from
suit. After careful perscrutation of an oddly configured factual
record (including consideration of how, if at all, an officer's
pre-arrest consultation with a prosecutor affects the qualified
immunity calculus), we affirm the district court's order.
I. BACKGROUND
On an appeal from a summary judgment order, an appellate
court is held to the same ground rules that bound the trial court
in the proceedings below: it must "construe the record and all
reasonable inferences from it in favor of the nonmovant." Perez v.
Volvo Car Corp., 247 F.3d 303, 310 (1st Cir. 2001). We rehearse
the facts with this construct in mind. Because the reasonableness
of Trooper Hainey's conclusion that he had probable cause to make
an arrest is the axis of this appeal, we concentrate on the
information available to him at the time of the arrest.
Our saga starts in Norway, Maine. Members of the Norway
police department arrested Joseph Cox, the appellant's fifteen-
year-old son, for alleged involvement in a series of snowmobile
thefts that occurred during the winter of 2000-2001. In the course
of the ensuing investigation, an informant volunteered that Joseph
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had sold drugs to high school students. The informant expressed a
willingness to participate in a controlled buy, and the local
gendarmes arranged a sting. The Maine State Police were asked to
assist.
On April 28, 2001 — all dates are in that year unless
otherwise indicated — the informant, fitted with an electronic
listening device, drove to the appellant's residence in Woodstock,
Maine. Hainey and a local police officer followed in a second
vehicle. Once there, the informant went inside and purchased four
tablets of Roxicodone (a non-time-released version of Oxycontin)
from Joseph Cox. Hainey, who listened to the conversation by
transmitter, overheard Joseph tell the informant that his father
recently had returned from a "drug run" to North Carolina and that
he could have his father procure "an eighth of marijuana" for
future purchase.
Based on what he knew to that point, Hainey obtained a
warrant to search the Cox home for scheduled drugs, drug
paraphernalia, and kindred items related to furnishing or
trafficking in drugs. Hainey and other officers conducted the
search on the morning of May 9. In Joseph's bedroom, they found
two Roxicodone tablets and drug paraphernalia. In the kitchen,
they found a triple-beam scale with marijuana residue, a bottle
containing sixty-five Roxicodone tablets, and an empty Roxicodone
bottle. The appellant was present during the search. He told the
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officers that the Roxicodone had been legally prescribed for his
back condition, that he never had provided pills to his son or to
anyone else (but, rather, had kept them on his person at all times
except while sleeping), and that he had called his pharmacist on
April 21 because he was concerned that a few of his pills were
missing.
Later that morning, Trooper Hainey consulted with Richard
Beauchesne, an assistant district attorney. The two reviewed the
evidence obtained during the search; discussed whether that
evidence, together with the information previously known to Hainey,
amounted to probable cause to arrest the appellant; and agreed that
it did. Hainey then made the arrest. The appellant was booked and
released on bail that day. The bail bond indicated that his arrest
had been for aggravated furnishing of a schedule W drug.1 See Me.
Rev. Stat. Ann. tit. 17-A, §§ 1105-C(1)(A)(1), 1106. After some
jockeying, see supra note 1, the assistant attorney general
assigned to the case determined that he would not issue a
complaint.
1
The appellant's brief makes several references to another
crime: aggravated trafficking of a scheduled drug in violation of
Me. Rev. Stat. Ann. tit. 17-A, § 1103. Though the appellant was
later charged with that offense by an assistant attorney general,
the record indicates that Hainey never made any recommendation to
that effect. Thus, for purposes of our qualified immunity
analysis, we consider only the reasonableness of Hainey's decision
to arrest the appellant for aggravated furnishing of a scheduled
drug.
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Once all charges had been dropped, the appellant filed
suit in a Maine state court against various officers and entities.
He alleged, under 42 U.S.C. § 1983, that the named defendants had
violated his constitutional rights and, in the bargain, had
committed a variety of tortious acts. The defendants removed the
case to the United States District Court for the District of Maine.
See 28 U.S.C. §§ 1331, 1441, 1446.
The sole count relevant to this appeal charges that
Hainey violated the appellant's Fourth Amendment rights by
arresting him without probable cause (for simplicity's sake, we
eschew any reference to other defendants and claims). When Hainey
moved for summary judgment on that count, the district court
referred the matter to a magistrate judge. See 28 U.S.C. §
636(b)(1)(B); Fed. R. Civ. P. 72(b). The magistrate judge
recommended that the count proceed to trial.
Hainey lodged a timely objection to the recommendation.
Upon de novo review, see Fed. R. Civ. P. 72(b), the district court
rejected the magistrate judge's view and found Hainey entitled to
qualified immunity on the ground that an objectively reasonable
police officer could have understood that there was probable cause
to arrest the appellant. Cox v. Me. State Police, 324 F. Supp. 2d
128, 135 (D. Me. 2004). Accordingly, the court granted summary
judgment in Hainey's favor. Id. at 130. This appeal followed.
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II. ANALYSIS
The appellant asseverates that Hainey was not entitled to
qualified immunity and, therefore, that the district court erred in
granting summary judgment. After limning the standard of review
and the doctrinal hereditaments appurtenant to qualified immunity,
we proceed to determine whether Hainey was deserving of sanctuary.
A. Standard of Review.
We afford plenary review to the district court's
disposition of a summary judgment motion. Garside v. Osco Drug,
Inc., 895 F.2d 46, 48 (1st Cir. 1990). We will affirm a grant of
summary judgment as long as the record demonstrates "that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). In conducting this tamisage, we "utiliz[e] the same
criteria as the trial court," drawing all reasonable inferences
from the record in the nonmovant's favor. Acosta v. Ames Dep't
Stores, Inc., 386 F.3d 5, 8 (1st Cir. 2004). A decision to affirm
a summary judgment order may be grounded on any rationale revealed
by the record, whether or not the lower court employed that
rationale. Houlton Citizens' Coalition v. Town of Houlton, 175
F.3d 178, 184 (1st Cir. 1999).
In this instance, the appellant abjures any claim that a
trialworthy factual dispute exists. He nonetheless insists that
the undisputed facts do not sustain the qualified immunity defense
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and, thus, as a matter of law, do not entitle Hainey to summary
judgment. This posture is important because, in the absence of a
genuine issue of material fact, a defendant's right to qualified
immunity presents a question of law. Rivera v. Murphy, 979 F.2d
259, 261 (1st Cir. 1992).
B. The Legal Landscape.
Before plunging into the qualified immunity inquiry, we
deem it useful to marshal the general principles that steer that
inquiry. The appellant sues under 42 U.S.C. § 1983, which imposes
liability upon an individual who, acting under color of state law,
deprives a person of federally guaranteed rights. Camilo-Robles v.
Hoyos, 151 F.3d 1, 5 (1st Cir. 1998). Withal, a public actor's
liability under section 1983 "is not absolute: the doctrine of
qualified immunity provides a safe harbor for a wide range of
mistaken judgments." Hatch v. Dep't for Children, Youth & Their
Families, 274 F.3d 12, 19 (1st Cir. 2001); see also Anderson v.
Creighton, 483 U.S. 635, 641 (1987). This strain of immunity
aspires to "balance [the] desire to compensate those whose rights
are infringed by state actors with an equally compelling desire to
shield public servants from undue interference with the performance
of their duties and from threats of liability which, though
unfounded, may nevertheless be unbearably disruptive." Buenrostro
v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992). In that way, the
doctrine of qualified immunity protects public officials from civil
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liability "insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982).
Qualified immunity serves not only as a defense to
liability but also as "an entitlement not to stand trial or face
the other burdens of litigation." Mitchell v. Forsyth, 472 U.S.
511, 526 (1985). Seen in this light, many of the benefits of
qualified immunity are squandered if an action is incorrectly
allowed to proceed to trial. It follows that the applicability vel
non of the qualified immunity doctrine should be determined at the
earliest practicable stage in the case. Hunter v. Bryant, 502 U.S.
224, 227 (1991) (per curiam).
The Supreme Court has set up a sequential analysis for
determining whether a defendant violated clearly established rights
of which a reasonable person would have known. See Saucier v.
Katz, 533 U.S. 194, 201-06 (2001). This court has construed that
framework to consist of three inquiries: "(i) whether the
plaintiff's allegations, if true, establish a constitutional
violation; (ii) whether the constitutional right at issue was
clearly established at the time of the putative violation; and
(iii) whether a reasonable officer, situated similarly to the
defendant, would have understood the challenged act or omission to
contravene the discerned constitutional right." Limone v. Condon,
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372 F.3d 39, 44 (1st Cir. 2004). Under ordinary circumstances, the
development of the doctrine of qualified immunity is best served by
approaching these inquiries in the aforestated sequence. See
Saucier, 533 U.S. at 201; Wilson v. Layne, 526 U.S. 603, 609
(1999). We proceed accordingly.
C. Qualified Immunity.
We have noted that the first variable in our algorithm —
whether the plaintiff has alleged facts that show that the
defendant's conduct violated a constitutional right — should be
treated as a "threshold question." Limone, 372 F.3d at 44. Here,
the appellant premises his section 1983 claim on an allegation that
the facts and circumstances known to Hainey at the time of the
arrest did not give rise to a reasonable likelihood that he (the
appellant) had furnished Roxicodone to his son or any other minor
and, therefore, that the arrest transgressed the Fourth Amendment.
The first prong of the qualified immunity analysis operates at a
high level of generality, and Hainey, based on Cox's allegations,
concedes this prong. See Appellee's Br. at 11-12 ("Cox alleged
conduct that amounts to a violation of a constitutional right — the
Fourth Amendment right to remain free of an arrest unless there is
probable cause. Accordingly, he has satisfied the first part of
this court's qualified immunity inquiry.").
We accept this concession. The Fourth Amendment
undoubtedly recognizes the right to be free from unreasonable
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seizures of the person. See, e.g., Beck v. Ohio, 379 U.S. 89, 91
(1964). Hence, the undisputed facts, construed in the light most
favorable to the appellant, make out a colorable claim of
constitutional dimension. No more is exigible to satisfy the first
part of the tripartite inquiry.
We can be equally quick in executing the second step of
the qualified immunity pavane. As said, Cox alleges that Hainey
arrested him with insufficient information to constitute probable
cause. The right to be free from arrest without constitutionally
adequate probable cause is clearly established. See Wagenmann v.
Adams, 829 F.2d 196, 209 (1st Cir. 1987). That satisfies the
second part of the tripartite inquiry.
Even though the right to be free from an arrest without
probable cause is clearly established, a further hurdle remains.
In Anderson, the Supreme Court clarified the qualified immunity
analysis by explaining that, although it was firmly established
that warrantless searches, not subject to any recognized exception,
violate the Fourth Amendment, more was needed before qualified
immunity could be deemed irrelevant. 483 U.S. at 640-41. The
court below was required to determine whether the defendant had
confronted particular circumstances in which the application of
general principles did not yield a certain answer and, if that were
the case, to determine whether the defendant had responded
reasonably to that idiosyncratic fact pattern. See id. In short,
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to set aside the buckler of qualified immunity "the right the
official is alleged to have violated must have been 'clearly
established' in a more particularized, and hence more relevant,
sense." Id. at 640.
This guidance is pertinent here. In settings that invite
balancing tests, it is often the case that the first two prongs of
the qualified immunity inquiry do not satisfy Anderson's
requirement of heightened specificity. This is particularly true
of alleged false arrests, given the fact-dependent nature of the
probable cause determination. No two probable cause equations are
exactly alike and, therefore, in most of these situations precedent
will take a court only so far. Thus, such cases frequently turn on
the third prong of the qualified immunity inquiry, which channels
the analysis from abstract principles to the specific facts of a
given case. See Limone, 372 F.3d at 48; Hatch, 274 F.3d at 24.
Under that prong, a defendant "is entitled to immunity if a
reasonable officer could have believed that probable cause existed
to arrest." Rivera, 979 F.2d at 263. We turn to that requirement.
Probable cause 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." Acosta, 386
F.3d at 9. The test is objective in nature, United States v.
Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987), and the proof must
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be such as to give rise to a reasonable likelihood that the
putative arrestee committed the suspected crime, Valente v.
Wallace, 332 F.3d 30, 32 (1st Cir. 2003).
Qualified immunity, however, requires a somewhat lesser
showing. For that purpose, the operative inquiry is not whether
the defendant's actions actually abridged some constitutional
right, see Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 228
(1st Cir. 1992), but, rather, whether those actions were obviously
inconsistent with that right, see Camilo-Robles v. Zapata, 175 F.3d
41, 43 (1st Cir. 1999). Thus, in the case of a warrantless arrest,
if the presence of probable cause is arguable or subject to
legitimate question, qualified immunity will attach. See Ricci v.
Urso, 974 F.2d 5, 7 (1st Cir. 1992).
This is as it should be: after all, "the reasonableness
standards underlying the probable cause and qualified immunity
inquiries are not coterminous." Iacobucci v. Boulter, 193 F.3d 14,
23 (1st Cir. 1999). The qualified immunity doctrine is designed to
afford officials an added measure of protection against civil
liability. To achieve that goal, the doctrine eschews a line that
separates the constitutional from the unconstitutional and instead
draws a line that separates unconstitutional but objectively
reasonable acts from obviously unconstitutional acts. See Zapata,
175 F.3d at 43. When properly drawn, that line "provides ample
protection to all but the plainly incompetent or those who
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knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341
(1986). It follows that this suit may go forward only if the
unlawfulness of the arrest would have been apparent to an
objectively reasonable officer standing in Hainey's shoes. See
Anderson, 483 U.S. at 640; Limone, 372 F.3d at 44.
We now consider what Hainey knew and when he knew it.
The point of our inquiry is to determine whether, at the time of
the arrest, an objectively reasonable officer could have concluded
that the salmagundi of facts added up to probable cause.
Hainey had reason to believe, from Joseph Cox's comments,
that the appellant was likely involved in furnishing marijuana to
his son (and possibly to others). The discovery of the triple-beam
scale in the family kitchen tended both to corroborate the
teenager's remarks and to confirm Hainey's understanding. The
trooper knew that the Roxicodone tablets found during the search
had been prescribed for the appellant and were, by his own
admission, in his nearly exclusive control. But Hainey also had
reason to doubt the appellant's claim that he was scrupulous in
guarding the pills; after all, the search disclosed two Roxicodone
bottles (one empty and one full) in the kitchen and two loose
tablets in Joseph Cox's bedroom. Hainey's knowledge that Joseph
Cox had obtained and sold four other Roxicodone tablets to the
informant cut in the same direction.
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Given Joseph's indication that his father was willing to
supply marijuana to minors, the presence of Roxicodone and drug
paraphernalia (the scale) in plain view in the kitchen of the
appellant's home, and Joseph's actual possession of Roxicodone, it
was objectively reasonable for Hainey to infer that the appellant
had furnished those pills to his minor son.2 Though Hainey's
judgment call may walk a thin line between probable cause and mere
suspicion, it cannot be shrugged off as plainly incompetent.
To cinch matters, Hainey took the precaution of reviewing
the known facts with the local prosecutor. This consultation, and
the assistant district attorney's agreement with Hainey's
preliminary assessment that probable cause existed, buttress the
conclusion that Hainey's actions were objectively reasonable.
Although the existence vel non of probable cause is arguable — we
regard that question as very close, but see no need to decide it
definitively — it simply cannot be said, on this record, that
probable cause clearly was lacking at the time of the arrest. See
2
Although the appellant told Hainey that he had never shared
the pills with his son or anyone else and that he had mentioned to
a pharmacist that some of his pills might be missing, Hainey had no
obligation to give credence to these self-serving statements. A
reasonable police officer is not required to credit a suspect's
story. See Brady v. Dill, 187 F.3d 104, 112 (1st Cir. 1999); Criss
v. City of Kent, 867 F.2d 259, 263 (6th Cir. 1988); see also
Acosta, 386 F.3d at 11 (noting that police have no responsibility
to investigate potential defenses before making a probable cause
determination).
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Topp v. Wolkowski, 994 F.2d 45, 48 (1st Cir. 1993). Qualified
immunity therefore attaches.
The appellant resists this conclusion on four grounds.
We find none of them persuasive.
The appellant's first line of attack is that the search
yielded no evidence that he had furnished Roxicodone to his minor
son. This ignores the fact that police officers are allowed "to
draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information
available to them." United States v. Arvizu, 534 U.S. 266, 273
(2002). While Hainey lacked direct evidence as to how Joseph Cox
procured the four Roxicodone tablets sold to the informant and the
two discovered in his bedroom, the totality of the circumstances
supported a plausible inference that he obtained them from his
father.
To be sure, alternative inferences could have been
derived from the evidence available to Hainey. But the
availability of alternative inferences does not prevent a finding
of probable cause so long as the inference upon which the officer
relies is reasonable. As we have said, "[t]he probable cause
standard does not require the officers' conclusion to be ironclad,
or even highly probable . . . . [It] need only be reasonable."
United States v. Winchenbach, 197 F.3d 548, 555-56 (1st Cir. 1999).
Consequently, when conflicting inferences are available to resolve
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the issue of probable cause and both of them are plausible, "it
does not matter which inference is correct." Acosta, 386 F.3d at
9.
The appellant's second demurrer takes issue with the use
of marijuana-related evidence to support the conclusion that he was
involved in furnishing Roxicodone to his minor son. The appellant
asserts that consideration of this evidence impermissibly reduced
the probable cause requirement to a standard compatible with arrest
for a lesser violation.
To put this assertion in perspective, it is important to
understand that Hainey has not argued that the evidence at least
supported probable cause to arrest for a marijuana violation. See
Cox, 324 F. Supp. 2d at 131 n.3. While a "related crimes" defense
might have been available to Hainey, see, e.g., Sheehy v. Town of
Plymouth, 191 F.3d 15, 19-20 (1st Cir. 1999) (outlining the
parameters of this defense), the absence of any argument to that
effect makes this a non-issue. See Santiago v. Fenton, 891 F.2d
373, 387 (1st Cir. 1989). Here, then, Hainey must be held to the
requirement of arguable probable cause with respect to the crime
for which he actually arrested the appellant, namely, a violation
of Me. Rev. Stat. Ann. tit. 17-A, §§ 1105-C(1)(A)(1), 1106.
This does not mean, however, that the marijuana-related
evidence has no bearing on the decisional calculus. Joseph's
comments about the drug run and his ability to obtain marijuana
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from his father are part of the totality of the circumstances. So
too is the presence of the scale. These pieces of evidence tend to
make more plausible the trooper's inference about the appellant's
role in the furnishing of Roxicodone. Cf. Brinegar v. United
States, 338 U.S. 160, 175 (1949) (observing that the inferred
probabilities undergirding probable cause "are the factual and
practical considerations of everyday life on which reasonable and
prudent men, not legal technicians, act"). Thus, we reject the
appellant's suggestion that this evidence should have been excluded
from the probable cause determination.
The appellant next argues that the foundation for
Hainey's probable cause determination was inadequate because he had
no evidence that the appellant possessed the mens rea required to
commit the charged crime. This sally takes us to the language of
the relevant statutes. The Maine Criminal Code provides in
pertinent part that "a person is guilty of unlawful furnishing of
a scheduled drug if the person intentionally or knowingly furnishes
what the person knows or believes to be a scheduled drug, which is
in fact a scheduled drug." Me. Rev. Stat. Ann. tit. 17-A, §
1106(1-A). A companion statute renders that crime aggravated if
"[t]he person furnishes a scheduled drug to a child who is in fact
less than 18 years of age and the drug is . . . [a] schedule W
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drug." Id. § 1105-C(1)(A).3 The Code sheds light on the meaning
of the mens rea components needed for commission of these crimes.
"A person acts intentionally with respect to a result of his
conduct when it is his conscious object to cause such a result."
Id. § 35(1)(A). By like token, "[a] person acts knowingly with
respect to a result of his conduct when he is aware that it is
practically certain that his conduct will cause such a result."
Id. § 35(2)(A).
Given these guideposts and the information available to
Hainey at the time of the arrest, we do not believe it should have
been apparent to him that the mens rea component was altogether
lacking. On this record, an objectively reasonable officer could
have believed that there was probable cause to support an arrest
for aggravated furnishing based on circumstantial evidence that the
appellant's actions were intentional (because Joseph's statement
about his ability to procure marijuana from his father, made in the
course of a Roxicodone transaction, tended to suggest that the
appellant was consciously abetting his son's drug-trafficking
activities). Although this inference is somewhat attenuated, the
practical restraints on police in the field are greater with
respect to ascertaining intent and, therefore, the latitude
accorded to officers considering the probable cause issue in the
3
In this case, no one disputes that Roxicodone is and was a
schedule W drug under Maine law.
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context of mens rea crimes must be correspondingly great. See Paff
v. Kaltenbach, 204 F.3d 425, 437 (3d Cir. 2000) (emphasizing that
police must make judgment calls in determining a suspect's state of
mind).
That brings us to the appellant's final objection to the
lower court's qualified immunity ruling. This objection calumnizes
the court's consideration of Hainey's consultation with the
assistant district attorney (who, upon reviewing the evidence that
Hainey presented to him, opined that it satisfied the probable
cause requirement). In mounting this objection, the appellant
submits that a police officer should not be able to insulate
himself from liability for an erroneous determination simply
because he obtained a prosecutor's blessing to arrest upon evidence
that did not establish probable cause.
We agree with the appellant's premise that a wave of the
prosecutor's wand cannot magically transform an unreasonable
probable cause determination into a reasonable one. That is not to
say, however, that a reviewing court must throw out the baby with
the bath water. There is a middle ground: the fact of the
consultation and the purport of the advice obtained should be
factored into the totality of the circumstances and considered in
determining the officer's entitlement to qualified immunity.
Whether advice obtained from a prosecutor prior to making
an arrest fits into the totality of circumstances that
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appropriately inform the qualified immunity determination is a
question of first impression in this circuit. In Suboh v. Dist.
Atty's Office of Suffolk Dist., 298 F.3d 81 (1st Cir. 2002), we
noted the question but had no occasion to answer it. See id. at
97. In dictum, we implied that if an officer seeks counsel from a
prosecutor anent the legality of an intended action and furnishes
the latter the known information material to that decision, the
officer's reliance on emergent advice might be relevant, for
qualified immunity purposes, to the reasonableness of his later
conduct. See id.
Other courts, however, have spoken authoritatively to the
issue. The Seventh Circuit recently recognized that pre-arrest
consultation with a prosecutor may lend reasonableness to an
officer's conclusion that probable cause exists and, thus, may help
to establish qualified immunity. Kijonka v. Seitzinger, 363 F.3d
645, 648 (7th Cir. 2004). Similarly, the Eighth Circuit has held
that such advice can assist in "show[ing] the reasonableness of the
action taken" and, thus, assist in determining the existence vel
non of qualified immunity. E-Z Mart Stores, Inc. v. Kirksey, 885
F.2d 476, 478 (8th Cir. 1989). The Ninth and Fourth Circuits also
have recognized that a pre-seizure consultation with a prosecutor
is a factor to be considered in determining an officer's
entitlement to qualified immunity. See Dixon v. Wallowa County,
336 F.3d 1013, 1019 (9th Cir. 2003); Wadkins v. Arnold, 214 F.3d
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535, 542 (4th Cir. 2000). The Tenth Circuit has substantially
adopted this reasoning, acknowledging the relevance of a
prosecutor's advice for qualified immunity purposes, at least where
the officer's duty is unclear. See Lavicky v. Burnett, 758 F.2d
468, 476 (10th Cir. 1985).
We agree with our sister circuits and with the
implication of the Suboh dictum that there is some room in the
qualified immunity calculus for considering both the fact of a pre-
arrest consultation and the purport of the advice received. As a
matter of practice, the incorporation of these factors into the
totality of the circumstances is consistent with an inquiry into
the objective legal reasonableness of an officer's belief that
probable cause supported an arrest. It stands to reason that if an
officer makes a full presentation of the known facts to a competent
prosecutor and receives a green light, the officer would have
stronger reason to believe that probable cause existed. And as a
matter of policy, it makes eminently good sense, when time and
circumstances permit, to encourage officers to obtain an informed
opinion before charging ahead and making an arrest in uncertain
circumstances. See Kijonka, 363 F.3d at 648. Although we
acknowledge the possibility of collusion between police and
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prosecutors, we do not believe that possibility warrants a general
rule foreclosing reliance on a prosecutor's advice.4
We caution, however, that the mere fact that an officer
secures a favorable pre-arrest opinion from a friendly prosecutor
does not automatically guarantee that qualified immunity will
follow. Rather, that consultation comprises only one factor, among
many, that enters into the totality of the circumstances relevant
to the qualified immunity analysis. See Wadkins, 214 F.3d at 542.
The primary focus continues to be the evidence about the suspect
and the suspected crime that is within the officer's ken.
In considering the relevance of an officer's pre-arrest
consultation with a prosecutor, a reviewing court must determine
whether the officer's reliance on the prosecutor's advice was
objectively reasonable.5 Reliance would not satisfy this standard
4
Of course, prosecutors work hand in glove with law
enforcement officers, so a prosecutor's advice, under the best of
circumstances, cannot carry the same presumption of reliability
that accompanies the detached scrutiny of a neutral magistrate.
See United States v. Leon, 468 U.S. 897, 913-14 (1984). But that
lessened deference is no reason to treat a prosecutor's counsel as
worthless. Prosecutors are public officials and officers of the
court. Moreover, when giving legal advice to the police, they have
only qualified immunity. Burns v. Reed, 500 U.S. 478, 496 (1991).
"[T]he absence of absolute immunity for the act of giving legal
advice may cause prosecutors to consider their advice more
carefully . . . ." Id. at 495. In view of these realities, we
refuse to endorse a rule that a prosecutor's stake in law
enforcement renders his or her advice inherently unreliable.
5
This inquiry remains focused on objective reasonableness and
should not be transformed into an investigation of the officer's
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if an objectively reasonable officer would have cause to believe
that the prosecutor's advice was flawed, off point, or otherwise
untrustworthy. Cf. Groh v. Ramirez, 124 S. Ct. 1284, 1293-94
(2004) (holding that qualified immunity could not shield an officer
from liability for actions predicated upon an obviously deficient
arrest warrant). Law enforcement officers have an independent duty
to exercise their professional judgment and can be brought to book
for objectively unreasonable mistakes regardless of whether another
government official (say, a prosecutor or a magistrate) happens to
compound the error. See Malley, 475 U.S. at 340-41.
The officer's own role is also pertinent. If he
knowingly withholds material facts from the prosecutor, his
reliance on the latter's opinion would not be reasonable. Dixon,
336 F.3d at 1019; Hollingsworth v. Hill, 110 F.3d 733, 741 (10th
Cir. 1997).
In this case, the advice that Hainey received from the
assistant district attorney was of the kind that an objectively
reasonable officer would be free to consider reliable. The
undisputed facts indicate that the two reviewed the available
evidence fully and had a frank discussion about it. This
discussion culminated in the prosecutor's statement that he
subjective good faith. See Crawford-El v. Britton, 523 U.S. 574,
587-88 (1998); Tremblay v. McClellan, 350 F.3d 195, 199 (1st Cir.
2003). Whether a pre-arrest consultation actually boosted the
officer's confidence in his or her probable cause determination is
beside the point.
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believed Hainey had probable cause to arrest the appellant. And,
finally, there is nothing to suggest that the prosecutor was
operating in bad faith. We conclude, therefore, that an
objectively reasonable officer would have taken the prosecutor's
opinion into account in deciding whether to make the arrest. Thus,
the district court appropriately considered that opinion in
assessing the objective reasonableness of Hainey's actions and,
ultimately, in granting him qualified immunity.
III. CONCLUSION
We need go no further. We conclude that an objectively
reasonable officer, standing in Hainey's shoes, could have believed
that probable cause existed to arrest the appellant for the crime
of aggravated furnishing of a schedule W drug. Accordingly, the
district court did not err in ruling that Hainey was entitled to
qualified immunity with respect to the appellant's claim under
section 1983.
Affirmed.
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Cox v. Maine State Police
Court: Court of Appeals for the First Circuit
Date filed: 2004-12-03
Citations: 391 F.3d 25
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