Holland v. City of Portland

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 96-1226

                       RORY C. HOLLAND,

                    Plaintiff, Appellant,

                              v.

      CITY OF PORTLAND, SULLIVAN RIZZO and BRUCE COFFIN,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

           [Hon. Gene Carter, U.S. District Judge]
                                                             

                                         

                            Before

                    Torruella, Chief Judge,
                                                      

                    Boudin, Circuit Judge,
                                                     

                  and Lisi,* District Judge.
                                                       

                                         

Stuart W. Tisdale for appellant.
                             
John E.  Sedgewick with whom  Berman & Simmons, P.A.  was on brief
                                                                
for appellees.

                                         

                       December 6, 1996
                                         

                
                            

*Of the District of Rhode Island, sitting by designation.


     BOUDIN, Circuit Judge.   Rory Holland  sued the City  of
                                      

Portland,  Maine, and two  Portland police officers, Sullivan

Rizzo  and Bruce  Coffin, for  damages and  injunctive relief

under  42  U.S.C.   1983  and  Maine tort  law  for Holland's

allegedly  wrongful false  arrest and  detention.   Following

discovery, the district court  granted the defendants' motion

for summary  judgment on  all of  Holland's claims.   Holland

appeals   from   the   court's   judgment    dismissing   his

section 1983, but not his state law, claim.

     The  facts,  taken most  favorably  to  Holland, are  as

follows.   At about 1:20  p.m. on October  18, 1994, Portland

police  radio traffic reported a  robbery at the  Key Bank in

Canal Plaza.  The police dispatcher described the suspect  as

a black male, about 6'2"  tall, 185 pounds, unshaven, wearing

a brown jacket, possibly suede, and a black hat, and carrying

a black leather  briefcase.  The dispatcher reported that the

suspect  had fled  on  foot and  did  not indicate  that  any

vehicle had been involved.

     Shortly after 2:00  p.m. on  the same  day, Holland  was

driving  a  Subaru to  the  Cumberland  County Courthouse  in

Portland.  He drove past  a bicycle patrolman, Daniel Knight,

and  turned the  corner.  Knight  had heard  the dispatcher's

report about the robbery.  When he saw the Subaru, he noticed

that  the driver, Holland, was a tall, thin black man wearing

a brown  or black jacket and  a hat who appeared  to meet the

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description  of the suspect, and he also noticed that the car

had no back window.

     Knight reported to the police dispatcher, "Ten-twenty on

Rory Holland, he's in the area."  Although Knight had not met

Holland, he  thought that the Subaru  driver fit descriptions

of Holland that  Knight had  seen in police  bulletins.   The

dispatcher asked  if Holland's  clothing matched that  of the

reported suspect.  Knight did not respond, but the dispatcher

immediately sent  backup police units and  indicated that the

suspect was a "possible match."

     After  turning the  corner  Holland parked  his car  and

started walking across the street towards the courthouse.  He

wore a  brown tweed jacket and  a brown leather  hat, and was

carrying a black nylon briefcase  and a white canvas bookbag.

Knight  stopped  Holland  in  the crosswalk  and,  addressing

Holland  by  name, said  that a  bank  robbery had  just been

committed and  asked  where Holland  had been.   Knight  also

asked about  the contents of Holland's bag.  Holland remained

silent. 

     Coffin, Rizzo,  and another officer soon  arrived at the

scene, and  the officers then  walked up to  Holland, backing

him up to  his car.  Coffin was familiar  with Holland's past

history   from  information  circulated   within  the  police

department and  thought that  the Subaru driver  was Holland.

Rizzo had  also heard  about Holland in  department briefings

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and  previously had seen a photograph of Holland.  Coffin and

Rizzo then began to ask Holland questions concerning the bank

robbery.

     Although  Rizzo  told  Holland  that he  was  not  under

arrest,  and that the police  just wanted to  learn about the

bank robbery,  Holland remained silent.  Noticing the missing

rear  window in Holland's car,  Rizzo asked Knight if Holland

had  been driving.    When Knight  said  that he  had,  Rizzo

allegedly said, "well, then we  can get him for not having  a

license  or something or other."  Rizzo then said, "Rory, you

know, I  can arrest you if you don't show me a valid driver's

license and tell me where you live . . . ."

     Holland continued to remain silent.  Rizzo asked Holland

several more times to  produce his license and to  tell Rizzo

where he lived, saying that otherwise Rizzo would  arrest him

"for failure to  identify yourself to me."  Eventually, Rizzo

told Holland that he was under arrest.   At that point, Rizzo

and Coffin patted down Holland, removed his wallet, and found

a driver's license in  the wallet that identified  the driver

as Rory Holland.  Rizzo then allegedly said,  "I guess we got

a license in here, I guess we can't get you for that."

     Coffin and  Rizzo took Holland to  the Cumberland County

Jail.  According to Holland, some officers referred to him as

a  bank robbery suspect.   Holland refused to  speak with the

booking  officer or others at the jail.  Holland was released

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on  bail after  the police  apprehended another  bank robbery

suspect.   Ultimately, no  charges of any  kind were  pressed

against Holland.

     Thereafter,  Holland  brought the  present  suit against

Rizzo, Coffin  and the  city.  As  the basis for  his section

1983 claim, Holland alleged that his arrest had  violated the

Fourth Amendment's protection  against unreasonable  searches

and  seizures  made  applicable  to the  states  through  the

Fourteenth  Amendment.   Specifically, the  complaint alleged

that the police lacked  probable cause to arrest him  for any

reason,  that the actual charge  was a pretext  to detain him

for questioning about  the bank robbery, and  that the arrest

was retaliation for his refusal to speak.  

     In the  course of discovery Holland--who  had previously

been in disputes with  the Portland police--learned that some

weeks  before   the   arrest,  the   police  had   circulated

information  about him  in  so-called crime  alert bulletins.

Knitting  the bulletins  together with the  disputes, Holland

suggested that his arrest  was part of a general  campaign of

harassment directed against  him by the police.   Holland did

not amend his complaint.

     On  January 25,  1996,  the district  court granted  the

defendants' motion for summary  judgment.  The district court

ruled that  the police had  probable cause to  arrest Holland

for failing to identify  himself or provide his license.   It

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called  the charge of harassment "hollow."  And it ruled that

the city was not liable because, quite apart from the lack of

a municipal custom or policy, this arrest had been justified.

Holland now appeals.

     1.  On review of a grant of summary judgment, this court

considers the matter de novo, taking the facts most favorably
                                        

to the non-moving party.  St. Hilaire v. City of Laconia,  71
                                                                    

F.3d 20, 24 (1st  Cir. 1995), cert. denied,  116 S. Ct.  2548
                                                      

(1996).   We  begin  by considering  whether  the police  had

probable cause to arrest  Holland--that is, whether the facts

known  to the police  indicated that Holland  had committed a

criminal offense.  The parties agree that Holland was charged

with  violating  29  Me.  Rev.  Stat.  Ann.     2501   (later

renumbered) which said:

        Whoever, while operating  a vehicle in violation
     of this [motor vehicle regulations] Title, fails or
     refuses, when requested by an officer authorized to
     make arrests, to give  the operator's correct name,
     address  and date of birth  is guilty of  a Class E
     crime.

       At first  blush, the literal language  might appear to

make the  officers' authority depend upon  whether the driver

was  actually operating in violation  of state law.   But the

Maine Supreme Judicial Court  has interpreted section 2501 to

permit an  officer to stop a  driver and ask his  name on the

basis of an  articulable suspicion that  the driver has  done

something wrong.   State v. Littlefield, 677 A.2d  1055, 1057
                                                   

(Me. 1996).  Indeed, even  if it then becomes clear that  the

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suspected violation  had not occurred, the  officer may still

insist  on  seeing  the  driver's  license and  registration.

State v. Hill, 606 A.2d 793, 794-95 (Me. 1992).  
                         

     Holland may  not have violated any motor  vehicle law by

driving with a  missing rear  window.  But  the missing  rear

window,  or  any  other similar  non-cosmetic  damage,  could

reasonably  create a suspicion of  such a violation.   See 29
                                                                      

Me.  Rev.  Stat.  Ann.    2503(1)(D)  (requiring  that  motor

vehicle equipment "[n]ot pose a hazard . . . .").  Thus, when

the officers asked Holland  to identify himself, section 2501

required  Holland to provide  his name, address,  and date of

birth--or face arrest.  See 17-A Me. Rev. Stat.  Ann.   15(B)
                                       

(authorizing  arrest  for  Class  E crimes  committed  in  an

officer's presence).

     Holland does  not challenge the initial  stop, see Terry
                                                                         

v. Ohio, 392 U.S. 1 (1968), nor argue that the statute itself
                   

is unconstitutional.  Cf. California  v. Byers, 402 U.S.  424
                                                          

(1971).  He  instead argues that the police  had no reason to

request his name since they already knew it, citing Rodriguez
                                                                         

v. Comas,  888 F.2d 899 (1st  Cir. 1989).  But  where the law
                    

requires  the motorist  to supply  his name,  the police  can

reasonably  insist  upon confirmation.   Further,  the police

also sought  Holland's  present address,  which  the  statute

required  him to provide, and there is no indication that the

police had this information.

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     Holland's reliance on  Rodriquez is  misplaced.   There,
                                                 

Rodriguez  was arrested on a charge of obstruction of justice

because he declined  to provide  his name and  address to  an

officer.   Rodriquez was well known to the officer, and there

was no separate statute--such  as Maine's motor vehicle law--

requiring that he provide  his name and address.   This court

held only that the refusal could not even arguably constitute

"obstruction of  justice" where  the refusal to  provide this

already-known information neither could nor did  obstruct the

officer's investigation.  888 F.2d at 902.

     Quoting language from  other cases, Holland  also claims

that police officers  may not  arrest a suspect  if they  can

obtain the  information that  they seek through  a reasonable

investigation.   See Sevigny  v. Dicksey,  846 F.2d  953 (4th
                                                    

Cir.  1988); BeVier v. Hucal,  806 F.2d 123  (7th Cir. 1986).
                                        

But  these  cases impose  no  such  limitation; rather,  they

demand  that officers  undertake reasonable  investigation to

determine whether probable cause  exists to arrest a suspect.
                             

Sevigny, 846 F.2d at  957-58; BeVier, 806 F.2d at 127.  Here,
                                                

Holland  committed  the  offense   in  the  presence  of  the

officers.

     2.   Although  Holland  devotes  much  of his  brief  to

disputing  the police claim of probable cause, he has a fall-

back contention less easily  resolved.  Fairly construing his

arguments,  we  take him  to  challenge the  validity  of his

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arrest  even  assuming  probable  cause  (which  he  disputes

strongly  but we  find to be  established).  In  sum, he says

that the police  nominally arrested him for  refusing to give

his  name and address but  that this was  a "pretext" because

the arrest was motivated by other, more sinister objectives.

     On Holland's  version of events, which  must be credited

at  this stage,  see St.  Hilaire,  71 F.3d  at 24,  there is
                                             

reason for thinking that  the police did not care  much about

the  missing car window or Holland's failure to give his name

or address.  Indeed,  a jury, after a full  trial, might well

find  that  the  police  arrested  Holland  for  a  technical

violation  in order  to pursue  their investigation  into the

bank robbery,  suspecting Holland  of complicity  but perhaps

lacking enough evidence to arrest him on this charge.

     The term "pretext" is sometimes used, as Holland uses it

here,  with the  assertion that  the police  may not  make an

arrest otherwise based on probable cause when  their true aim

is  to forward  some  other investigation.    But aside  from

dicta, it is  hard to  find recent holdings  to support  this

proposition; one  exception is the Eleventh  Circuit.  United
                                                                         

States v.  Valdez, 931 F.2d  1448, 1450-51 (11th  Cir. 1991).
                             

Our  own  circuit,  like  several others,  has  rejected  the

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inquiry into motive.  United States  v. McCambridge, 551 F.2d
                                                               

865, 869-70 (1st Cir. 1977).1

     In all  events, the  Supreme Court recently  settled the

matter in Whren  v. United  States, 116 S.  Ct. 1769  (1996),
                                              

holding  that   "[s]ubjective  intentions  play  no  role  in

ordinary, probable-cause Fourth Amendment  analysis."  Id. at
                                                                      

1774.   There, the  Court explicitly  rejected the very  test

used by the Eleventh Circuit in Valdez which asks whether the
                                                  

officer  "would" have  made  the stop  or  arrest absent  the

"other" motive.  See  id. at 1774-75; see also  United States
                                                                         

v. Robinson,  414 U.S.  218, 221 n.1  (1973) (lawful  traffic
                       

violation arrest was not unconstitutional, despite claim that

it was "a mere pretext for a narcotics search").

     The conflicting policy concerns are obvious.  On the one

hand,  motor vehicle  operation  often gives  rise to  fairly

minor  violations, making it easy  for the police  to find an

excuse; on  the  other hand,  the  violation does  provide  a

bright  line standard  while an  inquiry into  actual motive,

directly or indirectly, invites all kinds  of diversion.  See
                                                                         

Whren, 116 S. Ct. at 1774-75.  Further, "pretextual" stops or
                 

arrests, where  probable cause  exists and  the motive  is to

                    
                                

     1To the annoyance of  commentators, the dominant view in
the  circuits  has favored  a strictly  objective test  as to
whether  probable cause justifies a search or an arrest.  See
                                                                         
1 LaFave, Search and  Seizure   1.4(e), at 120-21  & n.61 (3d
                                         
ed. 1996).

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investigate another crime, may not seem  all that sinister to

the Justices, who were unanimous in Whren.
                                                     

     How  far  Whren would  extend  in  the face  of  dubious
                                

motives or other constitutional  concerns is a more difficult

question,  and one  not entirely  avoidable here.   Holland's

version  of events suggests that the police aimed not only to

hold  him for further investigation  but also that the arrest
                                                         

itself was  retaliation for  his refusal to  answer questions

about the robbery.  According to Holland, after he refused to

answer any questions about the bank  robbery, Rizzo said that

because  Holland had been driving, "well, then we can get him

for not having  a license  or something or  other."   Holland

further asserted  that Rizzo  was "obviously upset  and angry

with me  that I would  not speak  with him at  all about  the

robbery."

     Holland's  brief barely refers  to the  Fifth Amendment;

and the  law on  the relationship between  police questioning

and   the   privilege   against  self-incrimination   is   an

embarrassing tangle.   Historically, the privilege and police

questioning were unconnected, see 8 Wigmore, Evidence   2252,
                                                                 

at 328-29  (McNaughton rev.  ed. 1961);  and the  more modern

blurring of lines has left unclear whether the privilege  can

ever be  violated by such questioning  where no incriminating

statement is thereafter used  in a proceeding.  See  Wiley v.
                                                                      

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Mayor and City Council of Baltimore, 48 F.3d 773, 777-78 (4th
                                               

Cir.) (Powell, J.) cert. denied, 116 S. Ct. 89 (1995).2
                                           

     Even  if the  Fifth Amendment  is put  to one  side, the

defendants  do  not  suggest   that  Holland  had  any  legal

obligation to  answer questions  about the robbery.   Compare
                                                                         

Brown v. Texas, 443 U.S. 47, 52-53  (1979).  While the police
                          

did not purport  to arrest Holland for refusing to cooperate,

the facts might permit  a jury to think  that this was  their

underlying  motivation.    Yet  assuming  this  premise,  the

question  remains  whether  such   a  motive  for  an  arrest

otherwise justified  by probable cause alters  the message of

Whren.
                 

     In  our view, it does not.  The police, prosecutors, and

courts constantly make judgments--including decisions  not to

prosecute or to permit or impose a reduced sentence--based on

an assessment  of an individual's cooperation.   The decision

to arrest,  where probable  cause exists, is  a discretionary

one informed  by many  considerations.   And  any attempt  to

untangle  the  ascribed motive  from  a skein  of  others, in

prompting an  arrest justified  by objective  probable cause,

                    
                                

     2Of course,  Holland never  asserted the  privilege when
questioned, as  is customarily required.    The Supreme Court
has  said that  this  requirement may  not  apply in  police-
station  questioning  or  like  interrogation,  Minnesota  v.
                                                                     
Murphy, 465  U.S. 420, 429-30 (1984),  but shortly thereafter
                  
it ruled that one held briefly  in a traffic stop was not "in
custody" for purposes  of Miranda.  Berkemer v.  McCarty, 468
                                                                    
U.S. 420, 440 (1984).

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would  invite  exactly  the  inquiry into  police  motivation

condemned by Whren.
                              

     Actual motive sometimes does play a role in section 1983

actions.   E.g., Waters  v.  Churchill, 511  U.S. 661  (1994)
                                                  

(discharge  in retaliation  for exercise  of  First Amendment

rights).   But in evaluating  arrests, the Supreme  Court has

given  primacy  to  the   Fourth  Amendment's  own  objective

standards,  even  where other  constitutional bases  might be

invoked.  Thus, the Court recently rejected an attempt to use

substantive  due process  as a  more favorable  framework for

assessing a claim, at least insofar  as it was deemed one for

unlawful detention.  Albright v. Oliver, 510 U.S. 266, 274-75
                                                   

(1994).

     This does not mean  that probable cause forecloses every

possible  challenge  to an  arrest.    Whren itself  strongly
                                                        

implies  that an  equal  protection challenge  to an  arrest,

despite probable  cause existing, might  yet be  entertained,

although the court does not say what facts would be needed to

support such a challenge.  116 S. Ct. at 1774.   An objective

showing  that (for example)  only blacks or  Asians were ever

arrested for a specific,  widely committed offense would pose

a different  case than Whren.   See  Yick Wo v.  Hopkins, 118
                                                                    

U.S. 356 (1886).

     This brings us to Holland's final claim of  ascribing an

illicit  motive for the arrest.  It is evident from Holland's

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deposition that he himself  thinks (based on prior incidents)

that he was a target of general police harassment, resting in

part  on the  fact he  is black.   But  the racial  charge is
                                                              

unsubstantiated  by anything we can find in the record and is

not  directly urged in Holland's appellate brief.  We note it

only to stress that our decision does not reach the difficult

issues  that might  be raised  by a  substantiated  charge of

racial discrimination.   Compare United States v.  Armstrong,
                                                                        

116 S. Ct. 1480, 1486-88 (1996).

     Putting aside racial motives,  we note that the district

court deemed  the entire  harassment  charge unsupported  and

declined to discuss it at length.   On the other hand, if one

accepts  Holland's deposition testimony, there were obviously

prior incidents and some  ongoing tension between Holland and

the police.  In addition, Holland's name had  been circulated

within  the police department,  although that  standing alone

would  not  be wrongful.   See  Paul v.  Davis, 424  U.S. 693
                                                          

(1976); United States v. Egemonye, 62 F.3d 425, 428 (1st Cir.
                                             

1995).

     But  even  if assuming  that  a  jury  might think  that

Holland had  been harassed in the  past, we do not  see how a

reasonable jury could decide  that this was the cause  of his

arrest  in this instance.   Such a charge  is contradicted by

Holland's  own precise version of what the police said at the

arrest.   That  version indicates  that the  police officers'

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immediate reasons for  the arrest  were, at  worst, a  belief

that  Holland was  a suspect  in  the bank  robbery, possibly

aggravated  by  his  refusal  to cooperate  or  disclose  his

whereabouts at the time.

     We  must say in candor that Holland would have an uphill

road  to climb  even if  he had  plausibly claimed  that some

general  police  animosity lay  behind  this  arrest.   Given

Whren,  any plaintiff is  going to  have difficulty  in using
                 

subjective  motive to  attack  an arrest  which is  otherwise

objectively justified by probable  cause.  But the variations

in  facts, and certain extreme possibilities, caution against

deciding too much in the abstract.

     3.   The  claim  of  municipal  liability in  this  case

depended  on  Holland's  claim  that  the  officers  violated

Holland's constitutional rights by arresting him as a part of

their campaign  of harassment.   Holland sought  to implicate

the  city, under Monell v. New York City Department of Social
                                                                         

Services, 436  U.S. 658,  694 (1978),  by  charging that  the
                    

harassment grew  out of an officially  established program of

targeting suspects, including the circulation  of information

about them.

      Whatever  "custom  or   policy"  the   city  may   have

maintained   toward  individuals   that  the   police  deemed

suspicious, Holland  cannot show that  it was "the  cause of,

and moving force behind," his arrest  in this case.  Foley v.
                                                                      

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City of Lowell, 948 F.2d 10, 14 (1st Cir. 1991).  Further, we
                          

have  concluded that  the  arrest was  itself lawful  because

probable cause  existed and Holland has  offered no supported

basis for overcoming Whren.  Thus, the claim against the city
                                      

was properly dismissed.

     Affirmed.
                         

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