Reedy v. Evanson

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 09-2210
_____________

SARA R. REEDY,
Appellant
v.

FRANK S. EVANSON, individually and
in his official capacity as a Police Officer of the
Township of Cranberry; STEVE MANNELL,
individually and his official capacity as the
Public Safety Director of the Township of
Cranberry; KEVIN MEYER, individually and in
his official capacity as a Police Officer of the
Township of Cranberry

_______________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 06-cv-01080)
District Judge: Honorable David Stewart Cercone
_______________

Argued March 11, 2010
 Before: BARRY, JORDAN and VAN ANTWERPEN,
Circuit Judges.

(Filed: August 02, 2010)
_______________

David V. Weicht [ARGUED]
Leech, Tishman, Fuscaldo & Lampl
525 William Penn Place
30 th Floor, Citizens Bank Building
Pittsburgh, PA 15219

Counsel for Appellant

Charles W. Craven [ARGUED]
Marshall, Dennehey, Warner, Coleman & Goggin
1845 Walnut Street - 8 th Fl.
Philadelphia, PA 19103

Scott G. Dunlop
Marshall, Dennehey, Warner, Coleman & Goggin
600 Grant Street
2900 U. S. Steel Tower
Pittsburgh, PA 15219

Counsel for Appellees

Terry L. Fromson
Women’s Law Project

2
125 South 9 th Street , Suite 300
Philadelphia, PA 19107

Counsel for Non Party Amicus Appellant
_______________

OPINION OF THE COURT
_______________

JORDAN, Circuit Judge.

While working as a cashier at a convenience store,
nineteen-year-old Sara R. Reedy was sexually assaulted and
robbed at gunpoint by a serial sex offender. She reported the
crime to the police within minutes, subjected herself to a rape kit
examination, and gave detailed and consistent statements to law
enforcement officers and hospital staff. However, Detective
Frank Evanson of the Cranberry Township, Pennsylvania Police
Department, the lead investigator assigned to Reedy’s case,
believed that Reedy had fabricated the incident to cover up her
own theft of cash from the convenience store. Approximately
three months later, Evanson also became the lead investigator on
another sexual attack that was substantially similar to the assault
on Reedy and that Evanson knew was suspected to be the work
of a serial rapist. Six months after the assault on Reedy,
Evanson filed a criminal complaint against her, charging her
with falsely reporting a crime, theft, and receipt of stolen
property. Reedy spent five days in jail. The charges against her
were dropped only when the serial rapist was captured and
confessed to assaulting her, to committing the theft, and to
committing the other sexual assault investigated by Evanson.

3
Reedy later commenced this suit in the United States District
Court for the Western District of Pennsylvania under 42 U.S.C.
§ 1983 against Evanson and another Cranberry Township Police
Officer, Kevin Meyer, and the Township’s Public Safety
Director, Steve Mannell. She asserted claims of unlawful
seizure and unlawful search under the Fourth Amendment, and
accompanying state law claims of false arrest, false
imprisonment, abuse of process, and intentional infliction of
emotional distress. The District Court granted summary
judgment to the defendants on all of Reedy’s claims, and this
appeal followed. For the reasons described below, we will
vacate in part, reverse in part, and affirm in part, and will
remand the case for further proceedings.

I. Background

A. The Assault

Because it is necessary to demonstrate the similarities
between the assault on Reedy and the other sexual assault that
Evanson was investigating, a graphic description of events is,
unfortunately, required.

On July 14, 2004, Reedy was working alone as a cashier
at the JG Gulf Station (the “store” or “Gulf Station”) in
Cranberry Township, located in Butler County, Pennsylvania.
At approximately 10:40 p.m., a man later identified as Wilbur
Brown entered the Gulf Station. He walked toward the counter
where Reedy was standing, lifted his shirt, pulled out a gun, and
ordered Reedy to sit on the floor behind the counter while he
opened the store’s cash register by pushing the “no sale” key.

4
Although the store was equipped with a panic alarm button,
Reedy did not press it. After Brown removed the money from
the register, he ordered Reedy to take off her shirt, which she
did. He faced her, stared out the store’s window, unzipped his
pants, and exposed himself. He then began to sexually assault
Reedy, fondling her breasts and forcing her to perform oral sex
on him. While she was doing so, he yelled, “Suck my dick and
don’t bite it or I’ll shoot you.” (App. at 350.) He also told
Reedy to insert her finger into his anus, which she did. Brown
then ejaculated in Reedy’s mouth and threatened to harm her if
she did not swallow all of his semen.

After the assault, Brown ordered Reedy to go to the back
of the store, where there was an office that held the Gulf
Station’s safe. When Brown noticed that the store’s safe was
partially open, he asked Reedy if there was any money inside, to
which she responded that there was. Brown or Reedy1 then
removed two envelopes of money from the safe. Brown next
ordered Reedy to disable the telephone, which she did by pulling
the lines from the wall. Finally, he ordered Reedy to remain in
the back office for a few minutes while he left. He then fled
through the front door of the store. After waiting for a short
while, Reedy exited through the back door of the store and ran
to a neighboring service station for help. One of the employees
there called the police to report the robbery and sexual assault.

1
It is unclear from the record whether Reedy removed the
money from the safe on Brown’s command, or whether Brown
removed the money himself.

5
 B. The Initial Investigation

Officers from the Cranberry Township Police Force
arrived at the scene within minutes, and Reedy’s boyfriend,
Mark Watt, whom she had called, arrived shortly thereafter.
Reedy provided one of the police officers, Charles Mascellino,
a detailed description of the assault. She also described her
assailant as a white male, approximately 5’6” to 5’7”, wearing
a blue baseball cap, blue jeans, and blue boxer shorts, and
appearing in his mid-30s to early 40s.2 Reedy was unsure of
which direction her assailant went when he left the store, and
she could not provide a description of any vehicle he might have
used. Reedy was “crying, shaking, talking real loud,” and
“hysterical” during the interview. (App. at 252 p. 20.) One of
the officers offered Reedy the services of a sexual assault

2
Reedy’s description of her assailant’s age is in dispute. The
police report indicates that Reedy described her assailant as
appearing between 28 and 31 years of age. Similarly, the
affidavit of probable cause that Evanson filed against Reedy
months later when he charged her with criminal activity (the
“Affidavit”) also states that Reedy described her assailant as
appearing between 28 and 31 years of age. Reedy, however,
maintains that she advised the police officers that her assailant
was in his mid-30s to early 40s. Moreover, the record shows
that in her later statement to a nurse that same night, Reedy
described her assailant as appearing to be in his mid-30s to 40s.
Drawing all inferences in Reedy’s favor, the District Court
considered Reedy to have described the assailant as in his mid-
30s to early 40s.

6
counselor but she refused, stating that she had been sexually
abused as a child and knew how to handle the situation. The
officers searched the wooded area behind the Gulf Station but
could not locate Reedy’s assailant. An alert for the suspect was
broadcast around the local area. Four fingerprint specimens
were taken at the Gulf Station but none of them yielded any
useful forensic findings.

C. The Hospital

Mascellino took Reedy and Watt to the University of
Pittsburgh Medical Center in Cranberry Township, where Reedy
underwent a rape kit examination and where she first met
Detective Evanson. Evanson was the lead detective assigned to
investigate the incident. He had been a police detective for
Cranberry Township since 1986 and, by the time of these events,
had investigated more than ten rapes in his career. On the night
of the incident, Evanson traveled to the hospital, where he
introduced himself to Reedy and asked her what happened. She
provided an account of the assault that matched in detail what
she had told Mascellino. Reedy later said that, after hearing her
description of the attack, Evanson asked her how many times
she did “dope” each day. (App. at 396.) He then called her a
liar and repeatedly accused her of stealing the money from the
store. He asked Reedy where she had put the stolen money, to
which she responded that she did not know where the money
was. When Reedy began to cry under this hostile questioning,

7
Evanson told her not to bother, “because [your] tears aren’t
going to save [you] now.” 3 (App. at 398.)

After speaking with Evanson, Reedy provided another
full and consistent description of the assault to Mary Beth
Farah,4 the nurse who was treating her and who administered the
rape kit. According to Farah’s notes from the conversation,
Reedy told her that none of the assailant’s semen had gotten
onto her face and that, during the few minutes she was forced to
wait in the back room while her assailant escaped, she gargled
with water twice and washed her hands with soap. She also told
Farah that Evanson had called her a liar. In sum, by the time the
night of the assault was over, Reedy had provided separate,
detailed, and consistent accounts of the incident to Mascellino,
Farah, and Evanson, and had been accused by Evanson of being
a liar and a thief.

During their confrontational conversation at the hospital,
Evanson took note of Reedy’s physical appearance. He said that
her eyes looked dilated and that her speech was slow.
According to Evanson, he asked Reedy if she had “consumed
prescribed or unprescribed narcotics,” to which she responded

3
In his deposition, Evanson denied asking Reedy about the
location of the money, and said he did not recall making the
statement about her tears.
4
The record and the briefs contain references to both a Mary
Beth Farrah and Mary Beth Farah. We have adopted the latter
spelling, as used by the District Court.

8
she had not. (App. at 351.) Shortly thereafter, Evanson learned
that Reedy’s urine samples had tested positive for marijuana. He
asked Reedy if she had used marijuana recently, and she
answered that she had smoked it five or six days ago but had not
consumed any other medication. According to Evanson, “[t]hat
information led [him] to question [Reedy’s] credibility and to
ask the hospital to test for drug usage ... blood samples that had
been taken [from Reedy] ... as part of the ‘rape kit’ ... .”
(Appellees’ Answering Br. at 7.) Thus, without speaking to
Reedy, Evanson directed the hospital to perform additional
toxicology testing on Reedy’s blood samples.

Eight days later, on July 23, 2004, Evanson obtained and
executed a search warrant for Reedy’s medical records. The
records included the results of the additional toxicology
screening that Evanson had ordered, which revealed that Reedy
had ingested diazepam, better known as Valium, and confirmed
that Reedy had used marijuana. When Evanson later asked
Reedy about the diazepam, during a visit he made to her home
a couple of weeks later,5 Reedy explained that Watt, who had a
legal prescription for the drug, brought her a pill on the night of
the assault to “assist her in calming down.” (Id. at 356.)

D. Information From The Gulf Station’s Manager

5
See infra, Section I.F.

9
 In the days following the incident, Evanson spoke with
Carol Hazlett, Reedy’s supervisor at the Gulf Station.6 Hazlett
told Evanson that, on the day of the attack, she left the Gulf
Station at 3:00 p.m., when Reedy’s shift began.7 At
approximately 11:20 p.m. that night, she returned to the Gulf
Station because she had received a phone call at her home from
Security Systems of America (“SSA”), the Gulf Station’s
security monitoring company, informing her that there had been
an interruption in the power source for the store’s alarm system.8
SSA called Hazlett at home after receiving no answer when it
attempted to call the Gulf Station. A report from SSA reveals
that Hazlett was notified at approximately 11:15 p.m. about a
power failure that had occurred at approximately 10:15 p.m.

6
It is not clear exactly when Evanson met with Hazlett.
However, it appears from the police report that it happened at
some point between July 15 and 18, 2004.
7
Evanson wrote in the Affidavit that Hazlett left the store at
9:15 that evening (rather than 3:00 p.m.) but Hazlett stated in
her deposition that she left the store at 3:00 p.m. The District
Court proceeded on the premise that Hazlett’s departure time
was 3:00 p.m.
8
Evidently, the power source for this alarm system was
different than the power source for the store’s panic alarm.
Police officers tested the panic alarm on the night of the
incident, before the power to the store’s SSA alarm system had
been restored, and discovered that the panic alarm was working.
(App. at 333, ¶ 128; 662, ¶ 128.)

10
 The day after the incident, Hazlett went back to the Gulf
Station. When she was in the back room trying to fix the phone
lines that had been torn from the wall, she noticed that the alarm
system’s power cord, which was located behind a desk, had been
unplugged. She also learned, by looking at the Gulf Station’s
cash register tape, that the register had been opened by pressing
the “no sale” key at the exact time that Reedy had noted.
Finally, Hazlett discovered that $606.73 in cash was missing
from the store.

E. Meeting at the Police Station

On the morning of July 15, 2004, while Reedy was still
in the hospital, Evanson requested that she come to the police
station to provide a written statement to the police. The next
day, July 16, 2004, she traveled to the Cranberry Township
Police Station with her mother and stepfather, where she
provided a detailed, written statement about the incident.9 Her

9
In the Affidavit, Evanson stated that Reedy did not come to
the police station until July 23, 2004. He also wrote that he had
attempted to contact Reedy for several days (from July 15-23)
but was unsuccessful. Reedy’s mother, however, testified that
she called Evanson on July 15, the day after the incident, and
arranged for her and Reedy to travel to the police station the
very next day. Reedy, her mother, and her stepfather, all
testified that they went to the station and met with Evanson on
July 16, 2004, the first day that Reedy was out of the hospital.
Drawing all inferences in favor of Reedy, the District Court
proceeded on the premise that Evanson spoke with Reedy’s

11
description again matched what she had previously told
Mascellino, Farah, and Evanson. She also included the assertion
that Evanson had accused her of lying.

While Reedy was writing her statement, Evanson spoke
with Reedy’s mother and stepfather, Debbie and Paul Bosco, Jr.
He suggested that Reedy and Watt were responsible for the theft
at the Gulf Station and that he would soon be able to prove it.
He told the Boscos that, on the night of the attack, Watt had not
gotten out of his car right away when he arrived at the scene,
which Evanson thought was suspicious. Evanson also told them
he found it suspicious that Reedy had reported that the crime
happened around 10:40 p.m. and that the cash register had been
opened at exactly that time. In his view, “nobody that’s in this
kind of a hysteria would know exactly what time it was, so she
had to have preplanned this because nobody would know this.”
(App. at 448-49.) Finally, he told Reedy’s parents that “the
sooner [Reedy] confessed ... he could wrap it up.” (Id. at 449.)
He warned the Boscos that it was only “a matter of time ...
before he tied up the loose ends and put it all together so it
would be in [Reedy’s] best interest if [they] would encourage
her to ... admit it.” (Id. at 22 (first and third alterations in
original).) He also told Paul Bosco that he wanted to “burn”
Watt.10 (Id.)

mother on July 15, 2004, and that Reedy and her family met
with Evanson the next day, on July 16, 2004.
10
In his deposition, Evanson conceded that some of this
conversation occurred. Specifically, he stated that while Reedy

12
was writing out her statement, he expressed to Reedy’s mother
that Reedy’s story was suspect because it contained what he
viewed as critical gaps in information. He also conceded that he
spoke with Reedy about the security alarm system and about his
suspicion surrounding the fact that she was able to report the
exact time that the cash register was opened. However, Evanson

13
 Evanson then spoke directly with Reedy. He asked her
about the alarm being unplugged. Specifically, he asked
whether she had been ordered to disable any wires besides the
phone lines on the night of the incident, and, if so, where those
wires were located. Reedy responded that she did not believe
that the assailant had disabled anything other than the phone line
and, thus, did not know how the alarm system had been
disabled.

According to Evanson, when he asked Reedy how the
power failure on the alarm could have occurred, she grew
“verbally abusive” and stated “I just want to drop the whole
thing” and “I just want this whole thing to go away.” (Id. at
197-98 ¶¶ 47-48.) According to Reedy, on the other hand,
Evanson was hostile toward her during the meeting and
repeatedly accused her of lying and of taking money from the
store. Therefore, according to Reedy, any hostility or desire on
her part to end the proceedings was due to “Evanson’s hostility,
baseless accusations and badgering.” (Id. at 321 ¶¶ 47- 48.)
Reedy’s stepfather also stated that Reedy was not “verbally
abusive” during the interview but was simply “upset” at being
falsely accused less than two days after being sexually
assaulted.11 (Id. at 451-52.)

denied discussing Watt’s behavior and denied telling the Boscos
that it would be better for Reedy if she confessed.
11
Evanson also asked Reedy if she would be willing to take
a polygraph test, and she agreed to do so. The test results were

14
 F. Meeting at the Trailer Park

On August 17, 2004, Evanson and Detective Kevin
Meyer, another detective from the Cranberry Township Police
Force, went to the trailer park where Watt and Reedy were
living.12 According to Reedy, the officers asked her to step
outside her trailer. She did so and they had her sign a waiver of
her Miranda rights. They then began to press her to change her
earlier written statement about the assault. Evanson presented
Reedy with the hospital toxicology report and demanded to
know why her blood contained illegal substances. In her
deposition, Reedy described the encounter with Evanson,
saying, “I asked him to leave several times, just leave, leave me
alone. [I said] I’m not changing my statement. And he refused.

ultimately inconclusive and do not appear to have played any
role in the investigation or subsequent legal proceedings.
12
Sometime during the second half of July 2004, Meyer
learned from David Kriley, manager of the Green Acres Trailer
Park, that, on July 19, 2004, five days after the assault at the
Gulf Station, Reedy and Watt applied to rent a mobile home and
agreed to a monthly rent of $365.00, with a security deposit of
one month’s rent prior to moving in. On their rental application,
Reedy and Watt indicated that Catholic Charities would provide
$200.00 toward the initial security deposit. On July 20, 2004,
Watt provided Kriley with $165.00 in cash to fulfill the
remainder of the security deposit. These sums later figure into
the District Court’s consideration of whether Reedy had stolen
cash from the store.

15
... He had me completely hysterical, and, ... [i]t was totally
embarrassing, insulting.” 13 (Id. at 407-08.) This meeting
appears to be the last investigative effort regarding Reedy that
Evanson took before he charged her nearly five months later
with making false reports to the police, theft, and receiving
stolen property.

G. The Landmark Attack on October 13, 2004

On October 13, 2004, approximately three months after
the attack on Reedy, another woman was sexually assaulted and
robbed at gunpoint in Cranberry Township. That attack, which
occurred while the woman was leaving the Landmark Building,
was the only other reported sexual assault in Cranberry
Township in 2004 and was also assigned to Evanson as the lead
investigator. The Landmark attack bore several similarities to
the attack on Reedy:14

13
In his answer to Reedy’s amended complaint, Evanson
acknowledged that he and Meyer visited Reedy and Watt on
August 17, 2004, but admitted only to offering to “drop”
criminal charges against Reedy if she passed a polygraph test.
(App. at 120, ¶ 25.)
14
There were also differences between the two incidents.
Notably, the Landmark incident left physical, corroborative
evidence in the form of semen on the victim’s shirt that led to
DNA matches with other sexual assaults. However, there was
no physical evidence from the Reedy attack that could have led
to a DNA match.

16
• Both occurred in Cranberry Township, separated by 3
months.

• Both occurred at businesses located on Route 19,
approximately 1.5 miles apart from one another.

• Both attacks occurred at the same time of evening –
approximately at 10:40 p.m.

• In both attacks, the assailant made no effort to conceal
his identity.

• In both attacks, the female victim was assaulted while at
work or while leaving work.

• Both victims described their assailant as a Caucasian
male with brown (Reedy) or light brown hair
(Landmark), wearing blue jeans.

• Both victims described their assailant as being around the
same age. The Landmark victim described her assailant
as in his late-30s while Reedy described her assailant as
in his mid-30s to early 40s.

• In both attacks, the assailant used a black handgun.

• Both victims were robbed, in addition to being sexually
assaulted.

• Both victims were ordered to bare their breasts and had
their breasts fondled by the assailant.

17
• Both victims were forced to perform oral sex upon the
assailant.

H. The Affidavit

In January 2005, six months after Reedy had reported the
assault, and three months after the Landmark attack, Evanson
began drafting the Affidavit he would submit with the criminal
complaint against Reedy. Evanson sent an initial version of the
Affidavit to William Fullerton, an Assistant District Attorney for
Butler County, Pennsylvania. Fullerton reviewed the draft and
advised Evanson that it was inadequate. Specifically, on
January 11, 2005, Fullerton sent the following email to Evanson:

I got your PC [probable cause Affidavit] and
[police] report. I did not know they would be
virtually identical. ... I dont [sic] have the time to
edit and re-write the whole thing. If you want to
re-draft the PC and include a description of the
evidence that makes out the elements, I would be
glad to review that. My thinking is that the PC
needs to set forth that a report of a crime was
made and what information you have, in brief,
[that] shows that the event reported did not occur.

(App. at 725.) Fullerton confirmed in his deposition that he sent
an email to Evanson encouraging Evanson to “explain the
elements, [and] why [he] th[ought] the crime [was] there.” (Id.
at 703.) Although Fullerton expected to see another draft of the
Affidavit, Evanson never sent a revised draft to him.

18
 On January 14, 2005, Evanson learned from the
Pennsylvania State Police that DNA analysis linked the
Landmark attack to other sexual assaults in Pennsylvania. That
same day, Evanson sent a copy of his police report about the
Landmark attack to another town’s police department via fax,
with the subject line “Serial Rapist.” (App. at 609.) Also on
that same day – six months after Reedy was attacked, five
months after Evanson’s investigative efforts had ceased, and
three months after the Landmark attack – Evanson filed the
criminal complaint and Affidavit against Reedy with a
Pennsylvania Magisterial District Judge. Assistant District
Attorney Fullerton did not see the final Affidavit until after
Evanson had filed it, and the only changes Evanson had made to
the Affidavit from the draft that was earlier sent to Fullerton
involved removing portions from the prior draft.

Later that month or early in February, Evanson gave
details about the Reedy attack during a teleconference
conducted by a State Police task force organized to catch the
serial rapist.15 Evanson also sent a copy of the police reports on
the Reedy incident and on the later Landmark incident to
Corporal George Cronin, the State Police officer in charge of the
serial rapist task force.

15
It is not clear exactly when in January or early February the
teleconference occurred. It was, however, apparently after
January 14, 2005 because Evanson stated in his deposition that
charges had already been filed against Reedy at that point.

19
 I. Reedy’s Arrest and Subsequent Developments

Reedy was notified of the warrant for her arrest and, on
January 19, 2005, turned herself in. She was unable to post
bond and was taken into custody and transported to the Butler
County jail, where she spent five days awaiting a bail reduction
hearing. Later, in February, Reedy called a State Police tip line
that had been set up to obtain information about the serial rapist.
She explained that she had been sexually assaulted but had been
criminally charged for reporting the assault. On May 9, 2005,
while charges were still pending against Reedy, Evanson was
advised by the State Police that Reedy had contacted the task
force tip line about the assault at the Gulf Station.

Reedy’s criminal trial was scheduled to begin on
September 19, 2005. On August 22, 2005, Wilbur Brown was
apprehended while he was assaulting a female convenience store
clerk in Brookville, Pennsylvania. Brown subsequently
confessed to both the attack on Reedy and the Landmark attack.
On September 1, 2005, the Butler County District Attorney
dropped all charges against Reedy.

J. Procedural History

On August 14, 2006, Reedy filed the present suit against
Evanson, Meyer, Steve Mannell (the Public Safety Director for
Cranberry Township), Butler County, Assistant District Attorney
Fullerton, and Timothy F. McCune, the Butler County District
Attorney. On March 12, 2008, after Butler County, Fullerton,
and McCune were dismissed from the suit, Reedy filed an

20
amended complaint16 against Evanson, Meyer, and Mannell,
containing the following counts:

Count 1: Unlawful search in violation of the
Fourth Amendment, based on the toxicology
screening performed on Reedy’s blood;

Counts 2, 3, and 4: Unlawful seizure, false
imprisonment, and malicious prosecution in
violation of the Fourth Amendment, based on
Reedy’s arrest;

Count 5: Harm to liberty interest in violation of
the Due Process Clause of the Fourteenth
Amendment;17

16
For simplicity, we refer to the amended complaint as the
“complaint.”
17
Neither the District Court nor the parties have discussed
Reedy’s Fourteenth Amendment claim (Count 5). Either Count
5 has been abandoned, or, despite the fact that Count 5 is against
one additional party as compared to Counts 2-4, they have
treated Count 5 as being subsumed into Reedy’s Fourth
Amendment unlawful seizure claims. Cf. Graham v. Connor,
490 U.S. 386, 388 (1989) (holding that a Fourth Amendment
claim of excessive force is “properly analyzed under the Fourth
Amendment’s ‘objective reasonableness’ standard, rather than
under a substantive due process standard”). Given the handling

21
 Counts 6 and 7: State law claims of false arrest,
false imprisonment, and abuse of process;

Count 8: A state law claim of intentional
infliction of emotional distress 18

On July 1, 2008, all of the defendants filed a motion for
summary judgment. On March 31, 2009, the District Court
granted the motion for summary judgment and entered final
judgment in favor of the defendants and against Reedy on all
counts.19 However, the Court first held that, when the evidence
was viewed in the light most favorable to Reedy, there was
sufficient evidence to establish that Evanson knowingly or
recklessly included false statements in, and omitted relevant
information from, the Affidavit he had filed in support of
Reedy’s arrest.20 The Court thus had to “excise the offending
inaccuracies and insert the facts recklessly omitted [to]

of Count 5 by the parties and the District Court, we too decline
to address that Count as an independent claim.
18
Counts 1-4 were brought against Evanson and Mannell;
Count 5 was brought against Evanson, Mannell, and Meyer;
Counts 6 and 7 were brought against Evanson only; and Count
8 was brought against Evanson and Meyer.
19
The District Court’s opinion was not filed until April 20,
2009.
20
These omissions and false statements are discussed more
thoroughly below. See infra, Section III.A.ii.

22
determine whether or not the corrected ... affidavit would
establish probable cause.” (App. at 27 (quotations omitted).)
After “[p]erforming such surgery,” the Court held that the
Affidavit as corrected, “provides probable cause to believe ...
[that Reedy] committed the crimes ... .” (Id. at 27, 34.) The
Court further held that, even if a genuine issue of fact existed as
to whether the corrected Affidavit establishes probable cause,
Evanson was entitled to qualified immunity because “a jury
could not conclude that no reasonabl[y] competent officer would
fin[d] probable cause in this instance.” (Id. at 39-40.) The
Court therefore granted Evanson summary judgment on Reedy’s
unlawful seizure claims.

Next, the District Court rejected Reedy’s claim that her
blood had been unlawfully searched, holding that, by signing
two consent forms in connection with the rape examination at
the hospital, she had consented to the testing of her blood for
drugs. Alternatively, the Court determined that Reedy had “lost
any reasonable expectation of privacy in that blood” once it was
removed from her body. (Id. at 42.) The Court next held that
Reedy had failed to produce sufficient evidence that Meyer and
Mannell actively participated in any violation of her
constitutional rights and that those defendants were accordingly
entitled to summary judgment on all claims. Finally, the Court
granted summary judgment to Evanson on Reedy’s emotional
distress claim, concluding that Evanson’s conduct was not
sufficiently “extreme and outrageous” to be a foundation for
such a claim. (Id. at 43.) Having lost on all her claims, Reedy
filed a timely notice of appeal.

23
 1
II. Standard of Review 2

A district court’s grant of summary judgment is subject
to plenary review. Horn v. Thoratec Corp., 376 F.3d 163, 165
(3d Cir. 2004). Summary judgment is only proper when there is
no genuine issue of material fact in the case and the moving
party is entitled to judgment as a matter of law. See F ED. R. C IV.
P. 56(c)(2). Our role in reviewing a grant of summary judgment
is “not to weigh the evidence or to determine the truth of the
matter, but only to determine whether the evidence of record is
such that a reasonable jury could return a verdict for the
nonmoving party.” Am. Eagle Outfitters v. Lyle & Scott Ltd.,
584 F.3d 575, 581 (3d Cir. 2009). If so, summary judgment
cannot stand. We must view all of the facts in the light most
favorable to the non-moving party, who is “entitled to every
reasonable inference that can be drawn from the record.”
Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir.
2000). “[W]hen there is a disagreement about the facts or the
proper inferences to be drawn from them, a trial is required to
resolve the conflicting versions of the parties.” Peterson v.
Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).

21
The District Court had jurisdiction over Reedy’s federal
claims pursuant to 28 U.S.C. §§ 1331 and 1343. The District
Court had supplemental jurisdiction over Reedy’s state law
claims pursuant to 28 U.S.C. § 1367. We have jurisdiction over
this appeal under 28 U.S.C. § 1291.

24
III. Discussion

Reedy raises several contentions on appeal. First, she
argues that the District Court improperly granted summary
judgment as to her unlawful seizure claim because, whether
Evanson’s Affidavit is analyzed on its face or after being
corrected for omissions and false statements, there was no
probable cause to arrest her. Reedy further argues that the
District Court erred in holding that Evanson was entitled to
qualified immunity. She says that immunity is not warranted
because, viewing all the facts in the light most favorable to her,
a reasonably competent officer would realize that there was no
probable cause to arrest her. Second, Reedy argues that the
District Court erred in holding that the toxicology screening of
her blood for drug usage was within the scope of the two
consent forms she signed as part of her rape kit examination.
The District Court further erred, she says, when it held that she
had no reasonable expectation of privacy regarding the testing
of her blood simply because the blood had already left her body.
Reedy further contends that the Court erred in dismissing her
claims against Meyer and Mannell because the record contains
sufficient evidence to support a claim that they violated her
constitutional rights, namely, that they were active participants
in arresting her without probable cause. Finally, she says the
Court erred in granting summary judgment to Evanson on her
emotional distress claim because his conduct qualifies as
extreme and outrageous. We address each of these contentions
in turn.

25
 A. Unlawful Seizure: Probable Cause and Qualified
Immunity 22

The Fourth Amendment provides that people are “to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, ... and no Warrants shall
issue, but upon probable cause ... .” U.S. C ONST. amend. IV.
It is well-established that the Fourth Amendment “prohibits a
police officer from arresting a citizen except upon probable
cause.” Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir.
1995) (citing Papachristou v. City of Jacksonville, 405 U.S. 156,
169 (1972)).

Probable cause “requires more than mere suspicion[.]”
Orsatti, 71 F.3d at 482. However, it does not “require the same
type of specific evidence of each element of the offense as
would be needed to support a conviction.” Adams v. Williams,
407 U.S. 143, 149 (1972). Rather, “probable cause to arrest
exists when the facts and circumstances within the arresting
officer’s knowledge are sufficient in themselves to warrant a
reasonable person to believe that an offense has been or is being
committed by the person to be arrested.” Orsatti, 71 F.3d at
483; see also Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000)

22
Our analysis of “unlawful seizure” (Count 2) encompasses
Reedy’s claims of false imprisonment and malicious prosecution
(Counts 3 and 4), as well as her related state law claims of false
arrest, false imprisonment, and abuse of process (Counts 6 and
7), because all of those claims turn on whether probable cause
existed for the arrest.

26
(“Probable cause exists if there is a ‘fair probability’ that the
person committed the crime at issue.” (citation omitted).).
“Probable cause need only exist as to [one of the] offense[s] that
could be charged under the circumstances.” Barna v. City of
Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994). In analyzing
whether probable cause existed for an arrest, we must take a
“totality-of-the-circumstances approach.” Illinois v. Gates, 462
U.S. 213, 230 (1983).

i. The Original Affidavit

Taken on its face, Evanson’s original Affidavit accused
Reedy of false reporting, theft, and receiving stolen property23
based on the following assertions of fact, some of which have
been contradicted by Reedy and some of which were later
corrected by the District Court:

23
The Pennsylvania Crimes Code (the “Code”) states that a
person commits the crime of false reporting if he “reports to law
enforcement authorities an offense or other incident within their
concern knowing that it did not occur[.]” 18 P A. C ONS. S TAT. §
4906(b)(1). With respect to theft, the Code states that “[a]
person is guilty of theft if he unlawfully takes, or exercises
unlawful control over, moveable property of another with intent
to deprive him thereof.” Id. § 3921(a). A person commits the
crime of receiving stolen property “if he intentionally receives,
retains, or disposes of movable property of another knowing that
it has been stolen, or believing that it has probably been stolen,
unless the property is received, retained, or disposed with intent
to restore it to the owner.” Id. § 3925(a).

27
(1) On July 14, 2004, Reedy reported to
Robert McGee, an employee at the service
station next door to the Gulf Station, that
she had been sexually assaulted and
robbed by an unknown assailant.

(2) Reedy provided McGee with a description
of her assailant, but was unsure of the
direction he went when he left the store
and could not provide a description of any
vehicle he may have used.

(3) Reedy provided Mascellino and Evanson
with a description of the robbery, which
she said occurred at 10:40 pm.

(4) Evanson attempted to contact Reedy on
July 15, 2004, and was unable to reach her
for several days.

(5) Evanson spoke with Hazlett and learned
that the power for the store’s alarm system
was interrupted on the night of the robbery
and alleged assault and that the company
monitoring the security system had
unsuccessfully attempted to contact the
store.

(6) Hazlett returned to the store after the
incident and found that the power cord for
the alarm system had been unplugged.

28
(7) Reedy’s statement regarding the assailant
pressing the “no sale” key on the cash
register matched the exact time indicated
on the register tape.

(8) $606.73 was taken from the store’s cash
register during the robbery.

(9) On July 23, 2004, Evanson met with
Reedy and her mother. He asked Reedy if
her assailant had disabled, or had ordered
her to disable, any wires other than the
telephone lines during the attack. Reedy
responded that he had not. Evanson also
specifically asked Reedy if her assailant
disabled any lines for the electricity or the
alarm, to which Reedy responded no.

(10) When Evanson told Reedy that the security
system company had reported that the
security system’s power failed at 10:14
p.m., Reedy stated that she did not know
how that occurred.

(11) When Evanson told Reedy that a power
cord for the security system was
unplugged in the back room, and
questioned Reedy about how that could
have happened, Reedy became verbally
abusive and stated, “I just want to drop the
whole thing.”

29
 (12) When Evanson told Reedy that the matter
could not be dropped, Reedy said, “I just
want this whole thing to go away.”

(13) Meyer learned that in mid-July,
Watt and Reedy looked into renting
a mobile home with a monthly
rental fee of $365.00 and a security
deposit of that same amount.

(14) On July 19, 2004, Watt and Reedy
in fact applied to rent a mobile
home. Catholic Charities indicated
that it would pay $200.00 of the
security deposit and that Watt and
Reedy would pay the remaining
$165.00. On July 20, 2004, Watt
paid the remaining $165.00 of the
security deposit in cash.

ii. The Corrected Affidavit

Reedy argued before the District Court that the Affidavit
not only lacked probable cause on its face, but that it contained
material falsehoods and omissions. An arrest warrant “does not,
in itself, shelter an officer from liability for false arrest.”
Wilson, 212 F.3d at 786. Instead,

a plaintiff may succeed in a § 1983 action for
false arrest made pursuant to a warrant if the
plaintiff shows, by a preponderance of the

30
 evidence: (1) that the police officer knowingly
and deliberately, or with a reckless disregard for
the truth, made false statements or omissions that
create a falsehood in applying for a warrant; and
(2) that such statements or omissions are material,
or necessary, to the finding of probable cause.

Id. at 786-87 (internal quotations omitted). Thus, a court faced
with a claim that an arrest warrant contains false assertions and
omissions must first determine whether the officer made those
false assertions or omissions either deliberately or with reckless
disregard for their truth.

Whether something is done deliberately is a
straightforward question of fact. To know whether something
is done with “reckless disregard” for the truth requires some
explanation of the meaning of that term. Assertions are made
with reckless disregard when, “viewing all the evidence, the
affiant must have entertained serious doubts as to the truth of his
statements or had obvious reasons to doubt the accuracy of the
information he reported.” Id. at 788 (internal quotations
omitted). Assertions can be made with reckless disregard for the
truth “even if they involve minor details – recklessness is
measured not by the relevance of the information, but the
demonstration of willingness to affirmatively distort truth.” Id.
“[O]missions are made with reckless disregard for the truth
when an officer recklessly omits facts that any reasonable
person would know that a judge would want to know” in making
a probable cause determination. Id. at 783.

31
 After establishing that “there [is] sufficient evidence of
omissions and assertions made knowingly, or with reckless
disregard for the truth,” a court “assess[es] whether the
statements and omissions made with reckless disregard of the
truth were material, or necessary, to the finding of probable
cause.” Id. at 789 (internal quotations omitted). “To determine
the materiality of the misstatements and omissions,” a court
must “excise the offending inaccuracies and insert the facts
recklessly omitted, and then determine whether ... the
‘corrected’ ... affidavit would establish probable cause.” Id.

This two-part exercise – determining the affiant’s
motivation and constructing a revised Affidavit without material
omissions or misstatements – ensures that a police officer does
not “make unilateral decisions about the materiality of
information, or, after satisfying him or herself that probable
cause exists, merely inform the magistrate or judge of
inculpatory evidence.” Id. at 787. We have cautioned that “[a]n
officer contemplating an arrest is not free to disregard plainly
exculpatory evidence, even if substantial inculpatory evidence
(standing by itself) suggests that probable cause exists.” Id. at
790 (internal quotations omitted).

The District Court agreed with Reedy that, viewing the
evidence in the light most favorable to her, a jury could
conclude that the Affidavit suffered from recklessly-made false
statements and omissions.24 Specifically, the District Court

24
Evanson does not directly challenge the District Court’s
findings of false statements and omissions in the Affidavit.

32
Rather, he argues that the Affidavit he originally submitted, as
well as the revised Affidavit, both “present probable cause.”
(Appellees’ Answering Br. at 29-30.) We note, however, that
the District Court wrongly applied the summary judgment lens
of “all inferences in favor of the non-moving party” to the
analytical steps we outlined in Wilson. We did not say in Wilson
that the question of whether an affidavit has material omissions
and misstatements should be viewed from the deliberately
slanted perspective that summary judgment demands. On the
contrary, the necessary import of Wilson is that the effort to
determine whether an affidavit is false or misleading must be
undertaken with scrupulous neutrality. See Wilson, 212 F.3d at
787 (citing criminal cases United States v. Leon, 468 U.S. 897
(1984), and Franks v. Delaware, 438 U.S. 154 (1978), in
support of the proposition that a court testing probable cause for
an arrest challenged in a § 1983 case “must first consider
whether [the plaintiff] adduced sufficient evidence that a
reasonable jury could conclude that [defendant police officer]
made statements or omissions that he ‘knew [were] false, or
would have known [were] false except for his reckless disregard
for the truth.’”).
Specifically, Wilson provides that the person challenging
the affidavit must show, by a preponderance of the evidence,
that “(1) that the police officer knowingly and deliberately, or
with a reckless disregard for the truth, made false statements or
omissions that create a falsehood in applying for a warrant; and
(2) that such statements or omissions are material, or necessary,
to the finding of probable cause.” Wilson, 212 F.3d at 786-87
(internal quotations omitted). Once that review and correction

33
reached the following conclusions:

(1) Evanson omitted, with reckless disregard
for the truth, that he spoke with Reedy’s
mother on July 15, 2004, the day after the
incident, and that Reedy’s mother made
arrangements for Reedy to travel to the
police station the next day, on July 16,
2004. He also omitted the fact that Reedy
did indeed meet with him at the station on
July 16, 2004, as planned. Evanson had
stated in the original Affidavit that he
attempted to make contact with Reedy for
several days after the incident but that she
would not return his calls. He had also

process is complete, the corrected affidavit (assuming there were
corrections to be made) simply becomes one more set of factual
assertions that must then be viewed in the light most favorable
to the non-movant, in the same manner as all of the other
evidence is to be considered at the summary judgment stage.
The existence of a factual assertion in the corrected affidavit of
course does not preclude other evidence pertaining to the same
topic covered by that assertion from also being considered in the
summary judgment process.
Our review of the record here has not been affected by
the District Court’s error in this regard. Having examined the
totality of the circumstances, including the glaring omissions in
Evanson’s affidavit, we have reached the conclusions we
describe.

34
 stated in the original Affidavit that his
meeting with Reedy and her mother
occurred eight days after Reedy was
released from the hospital, on July 23,
2004. The Affidavit was corrected to
reflect that Evanson spoke with Reedy’s
mother the day after the incident, and that
Reedy and her mother met with him that
following day, July 16, 2004.

(2) Evanson recklessly misrepresented the
purpose of that meeting with Reedy at the
police station, neglecting to include the
fact that he also wanted to discuss the
possibility that Reedy had fabricated the
entire incident. Evanson had stated in the
original Affidavit that the purpose of the
meeting was simply to discuss the alleged
assault and robbery. The Affidavit was
corrected to reflect that Evanson also
wanted Reedy to come to the police station
to discuss the possibility that she had
committed theft and concocted the rape
allegations to cover her crime.

(3) Evanson recklessly mischaracterized
Reedy’s reaction to his questioning as
“verbally abusive” rather than being
simply upset. The Affidavit was corrected
to reflect that Reedy became “upset” at

35
 Evanson’s line of questioning. (App. at
23.)

(4) Evanson recklessly omitted the fact that
the two accounts Reedy provided to
Mascellino and Farah about the attack
were consistent with one another and were
given in graphic detail. The Affidavit was
corrected to fill in that omission.

(5) Evanson recklessly omitted the fact that
the Gulf Station’s panic alarm would have
worked had Reedy attempted to use it, but
that she may have been too distraught to
use it since a gun was pointed at her at the
time. The Affidavit was corrected to
include that information.25

(6) Evanson recklessly stated that Reedy
described her assailant as between 28 and
31 years of age. Reedy, however, testified
that she had described her assailant as in

25
Evanson had not included a statement about the existence
of a panic alarm in his original Affidavit. He explained in his
deposition that he considered Reedy’s failure to press the panic
alarm during the incident to be irrelevant, because it might have
been due to the fact that the assailant was pointing a gun at her
at the time, and thus, she might have been too distraught to
reach for it.

36
 his mid-30s to early 40s, a description
confirmed by the fact that she told Farah
that her assailant was in his mid-30s to
40s. The Affidavit was corrected to
include the latter characterization of the
assailant’s age.

(7) Evanson recklessly stated that Hazlett left
the Gulf Station at 9:15 p.m. on the day of
the incident, rather than 3:00 p.m., the time
that Hazlett stated she left. The Affidavit
was corrected to reflect that Hazlett left
the store at 3:00 p.m.

(8) Evanson recklessly omitted the fact that he
had investigated the Landmark Attack
during the time he was investigating
Reedy’s attack. The Affidavit was
corrected to include the fact that Evanson
investigated a robbery and sexual assault
with “several similarities” to Reedy’s
attack. (Id. at 27.)

The District Court reconstructed the Affidavit based on
those several conclusions. It then weighed what it considered to
be exculpatory facts in the revised Affidavit against what it
considered to be inculpatory facts, and held that the Affidavit,
even as corrected, still established probable cause to arrest
Reedy for false reporting and theft.

37
 iii. Probable Cause Analysis

The District Court’s approach was correct, but we cannot
agree with its ultimate conclusion about probable cause. In
general, the District Court committed four types of error. First,
it erred in its reconstruction of the Affidavit because it failed to
consistently interpret the record in the light most favorable to
Reedy and instead, contrary to the summary judgment standard,
occasionally adopted interpretations that were the least favorable
to Reedy. Second, the Court cited several inculpatory “facts” to
support probable cause that were not actually supported by the
record. Similarly, not all of Evanson’s arguably reckless
omissions were actually included in the Court’s reconstructed
Affidavit and analysis. Third, the Court erred in deciding that
certain facts were inculpatory when they were either irrelevant
or even exculpatory. Finally, the Court erred when it gave little
weight to the highly significant exculpatory facts that the
Landmark attack, with all of its similarities to the attack on
Reedy, occurred before Evanson sought to arrest Reedy and that
Evanson was responsible for investigating both attacks. We
explain below how these general errors manifested themselves
more specifically, and why the reconstructed Affidavit, as
further corrected by us, fails to establish probable cause.

1. Reedy’s Supposed Reluctance to be
Available and Evanson’s
Predisposition Toward Reedy

The District Court first cited as inculpatory the fact that
Reedy “was unwilling to provide a firm commitment to meet
with the police ... on the night in question and did not make

38
herself available until Detective Evanson continued to press the
matter with [Reedy’s] parents.” (App. at 31.) The Court then
held that, “although [Reedy] and her parents did actually meet
with Detective Evanson” the day after Reedy was released from
the hospital, that fact only “weaken[s] the inferences that
[Reedy] was evasive and uncooperative.” (Id. at 31-32.) Thus,
the Court held that “[t]he inference of reluctance to be available
to the police was fairly raised by [Reedy’s] behavior.” (Id. at
31.)

The record, however, if viewed in the light most
favorable to Reedy, does not show any lack of willingness by
her to meet with the police. On the night of the attack, she
immediately sought help to report it. She then, over the course
of the night, provided three separate, consistent, and detailed
accounts of the traumatic incident. Two of those statements
were to police officers. She also agreed to take a polygraph test.
The day she was released from the hospital, the earliest day she
could physically travel to the police station, she and her parents
met with Evanson at the station and she provided a detailed
written statement that was consistent with the accounts she had
given at the hospital. These are not the actions of someone
trying to avoid cooperating with the police.

The Court also cited as inculpatory the fact that, when
Evanson tried to contact Reedy on July 15, he was only able to
reach her voicemail. On July 15, however, Reedy was still in
the hospital, and Reedy’s mother contacted Evanson that same
day on Reedy’s behalf and arranged for Reedy to go to the
police station the next day. Reaching the voicemail of a person
who has just been sexually assaulted at gunpoint, while that

39
victim is still in the hospital, does not demonstrate that the
victim is uncooperative, especially when the victim has a
relative return the phone call the same day.

Moreover, even if Reedy had shown a reluctance to
cooperate, a reasonable jury could find that such reluctance was
not inculpatory but was understandable in the face of Evanson’s
undisguised suspicion of Reedy from practically the moment she
reported the attack. The District Court correctly recognized the
remarkable rapidity with which Evanson viewed Reedy as the
prime suspect in the theft of the Gulf Station, but the Court
nevertheless expressly declined to consider Evanson’s
predisposition toward Reedy to be relevant, stating that
“whether Detective Evanson had a predisposition towards
[Reedy] ... from the start of [the] investigation does not change
the inculpatory information … .” (Id. at 31.) That puzzling
assertion ignores the human dynamic inherent in
communication. Evanson’s predisposition, which was
manifested in his aggressive and insulting accusations, is
certainly relevant to an interpretation of Reedy’s attitude,
because her actions or statements occurred in the context of, and
in response to, Evanson’s actions and statements. Reedy’s
behavior cannot be fairly analyzed without considering the
behavior of Evanson to which she was reacting.

Evanson’s investigation into the reported rape and
robbery appears to have focused exclusively on the theory that
Reedy was a liar and thief. The police report – and, for that
matter, the entire record – indicates that, after a brief search of
the woods on the night of the incident, Evanson and the other
officers made no effort to locate Reedy’s assailant or to consider

40
anyone but Reedy and Watt as suspects, even after the
Landmark Attack.26 As Reedy tells it, the night she was
attacked, while she was still in the hospital and after she had
given Evanson a detailed description of the events that matched
what she had already told Mascellino, and before Evanson had
done any further investigation, he called her a liar and
repeatedly accused her of stealing the money from the store.

In short, we are mindful that we must view the record in
the light most favorable to Reedy. The fact that Reedy reported
the assault immediately, provided three consistent and detailed
accounts of it,27 traveled to meet with Evanson the day after she
was released from the hospital, provided another detailed
statement in writing, and did all of this in the face of Evanson’s
repeated accusations against her, shows a willingness to work
with law enforcement rather than an “evasive” or

26
See infra, Section III.iii.7.

27
The District Court corrected Evanson’s original Affidavit
to reflect that Reedy had provided two separate detailed
accounts of the assault to Mascellino and Farah, and that those
accounts were consistent with one another. The Court cited that
as exculpatory. We agree it is exculpatory, but note that the
record actually reflects that Reedy provided three graphic
accounts of the assault on the night of the incident – to
Mascellino, Farah, and Evanson – and that all three accounts
were consistent with one another. Accordingly, in
reconstructing the Affidavit and analyzing it for probable cause,
the District Court should have included and considered all three
accounts.

41
“uncooperative” attitude. Accordingly, the District Court’s
characterization of Reedy’s behavior as inculpatory is clearly
wrong.

2. The Cash Register and the
Assailant’s Exit

The District Court regarded as inculpatory Reedy’s
failure to provide any information about how her assailant
arrived at the gas station or in what direction he went when he
left the scene. At the same time, however, the District Court
found Reedy’s knowledge about the precise time the cash
register was opened to be inculpatory, because it seemed
suspicious to the Court that she could remember such detail.
The District Court thus placed Reedy in a memory trap: she
implicated herself by noticing and remembering certain details
about the attack, but also implicated herself by not noticing or
remembering other details. Leaving aside the fact that a
reasonable jury could conclude that people often remember
some details but not others, the District Court’s conclusion is
inapposite because, again, it casts the evidence in an
unfavorable light for Reedy. It does not take much generosity
to consider that Reedy may have been unaware of her attacker
until he was already in the store. Hence, not knowing the
direction he came from is hardly inculpatory. Reedy could not
describe the direction that her assailant left the scene because
she remained in the backroom of the station at the time he left,
just as he had ordered. If the evidence is viewed in her favor,
these interpretations must be given their due and the inculpatory
conclusion reached by the District Court falls away.

42
 3. The Panic Alarm and Counseling

The District Court thought it inculpatory that Reedy had
failed to push the panic alarm while a gun was being pointed at
her,28 and that she had declined professional counseling when it
was offered to her. Specifically, the Court held that Reedy’s

declining professional counseling after it was
offered repeatedly and the fact that she did not
attempt to press the panic alarm at any time
during the events happening behind the counter in
the front room, while susceptible of innocent
explanation, add to the quantum of information
supporting a finding of probable cause.

(App. at 34 n.7.)

Here again, the District Court erred in its application of
the summary judgment standard. It explicitly recognized that
there are two reasonable interpretations of Reedy’s conduct,
stating that Reedy’s conduct is “susceptible of innocent
explanation.” (Id.) However, it then adopted the least favorable
interpretation for Reedy, which is contrary to the requirement
that “[t]he evidence of the non-movant is to be believed, and all

28
Evanson’s police report states that the perpetrator “pulled
a black semi-automatic handgun from the waist band of his
pants and proceeded to point said gun at victim.” (App. at 350.)
Reedy said that he “pointed his gun at the left side of [her]
head.” (Id. at 460-61.)

43
justifiable inferences are to be drawn in [her] favor.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

More specifically, the District Court’s implication that
there is a duty to attend counseling is incorrect. There is no such
duty. Moreover, implicit in the Court’s conclusion that an
inculpatory inference can be drawn from Reedy’s decision not
to attend counseling is a value judgment about how victims
ought to respond to trauma. That is a highly debatable
judgment, lacking any foundation in the record. Even if there
were some basis for saying that refusing counseling is
inculpatory, Reedy explained why she did not want counseling,
saying that her earlier experience with sexual abuse would allow
her to handle the trauma. When confronted, as the District
Court evidently believed it was, with two explanations for
Reedy’s decision to refuse counseling – either she was lying
about the assault or she believed counseling was not necessary
– the Court chose to operate on the least favorable interpretation
of the evidence. That was error. Likewise, Reedy’s failure to
reach for a panic alarm when a gun was pointed at her and she
was being sexually assaulted, which are the facts we must accept
at this stage, is not in the least inculpatory.29

29
The District Court’s statement about the panic alarm is also
troubling because it is based on the assumption that a victim
must engage in active forms of resistance during a sexual
assault, even if that resistance threatens personal safety. See
State ex rel. M.T.S., 609 A.2d 1266, 1271 (N.J. 1992)
(discussing how historically “[c]ourts assumed that any woman
who was [sexually assaulted] necessarily would resist to the
extent of her ability”). Under Pennsylvania law, to which

44
 4. The Security Alarm System

The District Court focused heavily on events related to
the security alarm system. Of the several assertions of fact cited
by the Court as inculpatory, the following five involved the
security alarm system:

(1) the power to the alarm system was disabled
approximately 20 minutes before the attack;

(2) the system had been unplugged from its socket
behind a desk in the Gulf Station’s rear office;

(3) Reedy stated that her attacker was not in the
area where the plug to the alarm system was
located;

(4) Reedy admitted that her attacker did not
disable any lines for electricity or the alarm
system, and;

Evanson was presumably looking in drafting his Affidavit, that
assumption is not legally permissible, because, in 1976, the
Commonwealth enacted a statute stating that a sexual assault
victim’s lack of resistance is not relevant. See 18 P A. C ONS.
S TAT. § 3107. By the District Court’s reasoning, however, it
was appropriate for Evanson to presume that Reedy was lying
because she did not press a panic alarm while a man pointed a
gun at her and sexually assaulted her. That reasoning amounts
to a return to considering a victim’s lack of physical resistance
to be legally significant.

45
 (5) when asked about the alarm system and why
the power would have gone out twenty minutes
before the attack, Reedy became upset and stated
that she wanted the whole thing to go away.

The Court drew these assertions of fact from Evanson’s
reply brief in support of summary judgment, despite that brief’s
failure to contain any citations to the record. The record actually
does not align with Evanson’s assertions or with the description
provided by the District Court on the last three of those five
points. As to the third point, Reedy’s assailant forced her into
the back room where he ordered her to disable the telephone
lines. Thus, the assailant was in fact in the area where the plug
to the alarm system was located, and Reedy never stated
otherwise. As to the fourth, Reedy never admitted that her
attacker did not disable the alarm system; rather, she told
Evanson that she did not know how the power to the alarm
system was disabled. As to the fifth, Reedy’s statements – “I
just want this whole thing to go away” and “I just want to drop
the whole thing” – were made while she was being accused by
Evanson of being a liar and a thief. The District Court’s
discussion of these statements as inculpatory assumes that a jury
could draw only one conclusion from Reedy’s statements: that
Reedy had a guilty conscience about the matter. But contrary to
that, a reasonable jury could plausibly conclude that, at the time
Reedy made those statements, she could tell that Evanson was
going to make her life unpleasant and so she naturally “wanted
this whole thing to go away.” (App. at 198 ¶ 48.) This again
reflects a failure to “construe[ the evidence] in the light most
favorable to the party opposing summary judgment.” Anderson,
477 U.S. at 261 n.2. In short, points 3, 4, and 5 on the list of

46
factual assertions regarding the alarm system are not supported
by an appropriate view of the record.30

5. The Remaining Inculpatory Facts

The District Court noted other facts that it considered to
be inculpatory but which bear innocent explanation. First, the
Court pointed out that Reedy was the sole employee on the
premises when the incident occurred. While perhaps
inculpatory in the sense that Reedy had an opportunity to
commit the crime, her being alone is also consistent with her

30
Moreover, as Reedy notes, if she had intended to disable the
power to the alarm to support a fabricated story of rape and
robbery, she could have done at least one of the following:

(1) blamed her assailant for disabling the alarm,
especially in response to Evanson’s questions
about the alarm; (2) reported the attack to have
occurred at about the same time as the disabling
of the alarm; and/or (3) reported to the police that
she was unable to use the alarm/panic button
because it had been disabled.

(Appellant’s Opening Br. at 41.) That she did none of these
things arguably cuts against the view that she fabricated her
story. On this record, although Reedy has not proffered an
explanation for how the alarm system was disabled, a reasonable
jury could conclude that she was genuinely unaware of what
had occurred with the system.

47
being a victim of assault, as a jury could conclude that an
assailant would chose to rob a gas station convenience store
relatively late at night precisely because he might assume it
would be staffed by a single employee.

Second, the Court noted that Watt arrived at the scene
shortly after the incident was reported and later had cash for a
deposit of $165.00 for the rental of a mobile home, just a few
days after the incident. The implication is that Reedy had
arranged for Watt to arrive at the Gulf Station as part of a
scheme to transfer the stolen cash to him. But Watt arrived at
the scene after the police were already there, and, according to
Reedy, in response to her urgent call. Moreover, she stated that
Watt typically picked her up after her shift ended and so he
would have arrived at the scene near that time anyway, since the
incident occurred when Reedy’s shift was ending. We also
cannot agree with the District Court that making a $165.00
deposit is necessarily inculpatory. Even assuming that Reedy
had no money for the rental deposit, the record is silent about
Watt’s financial status and whether he had legitimate access to
funds for the deposit. In short, without more facts – and,
particularly at the summary judgment stage, where the only
permissible inferences are ones in favor of Reedy – Watt’s and
Reedy’s payment of $165.00 has little, if any, inculpatory
value.31

31
Hazlett stated in her deposition that a week prior to the
incident, Reedy told her that she and Watt needed a $600.00
down payment for a trailer that they wanted to purchase.
However, because Hazlett did not reveal this information until
her deposition, no reference to this fact is contained in the police

48
 6. The Drug Testing

Evanson’s briefing before us emphasizes that Reedy had
used drugs and claims that her “lying about her use of marijuana
and diazepam justified [his] suspicion and reinforced the theory
that [Reedy] was involved in the removal of the money.”
(Appellees’ Answering Br. at 37.) However, Evanson did not
include in his original Affidavit any reference to Reedy’s use of
marijuana or other drugs, or to her alleged lying about drugs,
suggesting that, despite his present rationalization, he did not
believe that the information was relevant to probable cause.

Moreover, at least as to her marijuana use, Reedy appears
to have been forthcoming to both Evanson and Farah,
acknowledging that she had used marijuana several days before
the incident. Evanson has failed to explain how a positive urine
test for marijuana is inconsistent with Reedy’s statement of
when she had used marijuana, and, thus, he has not explained
why marijuana testing led him to question Reedy’s credibility.
To the extent he is implying that marijuana could only be
detected by the test if the use had been more recent, Evanson has
referenced nothing to support that conclusion.

As to the diazepam, the evidence of Reedy’s denying
drug use is more equivocal. Evanson says that, when he asked
Reedy if she had consumed any narcotics, she answered that she
had not, but that later he discovered she had taken a diazepam.
According to Evanson, this demonstrates that Reedy had lied to

report or the Affidavit, and it played no part in Evanson’s
probable cause analysis.

49
him. That, of course, assumes that Reedy understood the word
“narcotic” to include diazepam. Evanson also says that when he
asked Reedy about her marijuana consumption, she responded
that, while she had smoked marijuana, she had taken no other
medication. If Reedy made the statement that she had taken no
other medication, that could surely be viewed as inconsistent
with her admission that she had taken a diazepam. However,
there is a question about whether Evanson’s account of the
conversation is accurate, because of evidence that indicates that
it was inserted into the police report after the fact.32 More
importantly, it bears re-emphasis that the issue of Reedy’s drug
use was evidently not a part of Evanson’s probable cause

32
The only evidence of this conversation between Evanson
and Reedy is found in Evanson’s police report entries. The
police report indicates that this information was entered by
Evanson on July 15, 2004, the day after the incident. However,
according to Reedy, defendants produced electronic backup files
of the police report, which revealed that Evanson’s question to
Reedy about narcotics usage was inserted into the police report
on September 1, 2004. By September 1, 2004, Evanson had
obtained the results of the toxicology report and had confronted
Reedy with those results. Reedy says she explained to Evanson
that Watt had given her diazepam to relax after the assault.
Reedy thus suggests that, since Evanson “was aware of Reedy’s
truthful and eminently reasonable explanation” for both the
diazepam and the marijuana, Evanson knew that he could only
suggest Reedy was untruthful if he “specifically referred to the
use of prescription or non-prescription drugs ... .” (Appellant’s
Reply Br. at 12.)

50
determination, because he did not mention Reedy’s drug use in
the Affidavit.

7. The Landmark Attack

Prominent among the problems with the District Court’s
probable cause analysis is the way that it addressed the
Landmark attack. While recognizing that Evanson’s failure to
include any mention of that attack in the Affidavit was a
reckless omission, the Court nevertheless concluded that, while
the Reedy and Landmark attacks “share general similarities[,] ...
[s]uch details neither add to nor subtract from the probable
cause determination.” (App. at 26.) That conclusion is
unsustainable because it ignores the marked similarities of the
attacks and the fact that Reedy was charged with fabricating the
entire incident at the Gulf Station.

The several similarities between the Landmark attack and
the attack on Reedy constitute material omissions that should
have been included by the District Court in the reconstructed
Affidavit. Once included, they significantly undermine the
conclusion that there was probable cause to arrest Reedy for
theft, receiving of stolen property, and filing a false report.

Not only are the similarities between the attacks
objectively apparent, the attacks may have been subjectively
connected in Evanson’s mind prior to the time he arrested
Reedy. That is at least a fair inference when the record is
viewed in Reedy’s favor, though Evanson denies it. On October
13, 2004, approximately three months after the attack on Reedy,
the Landmark victim reported being attacked by someone of the

51
same general description as Reedy’s assailant, who used a
similar weapon, and who forced her at gunpoint to allow him to
fondle her breasts and to perform oral sex on him. The
Landmark attack, which took place less than two miles from the
Gulf Station and at practically the same time of night as Reedy’s
attack, was the only other reported sexual assault in Cranberry
Township in 2004. It was also assigned to Evanson as the lead
investigator. Nevertheless, when Evanson filed his Affidavit
against Reedy on January 14, 2005, he did not mention the
Landmark attack and there is no indication in the record that he
investigated any relationship between the two incidents, or that
he even considered the similarities between the two attacks.
When Evanson was asked in his deposition, “[w]hat information
would you have needed to link the Reedy rape and the
Landmark rape?”, he responded that the “only things that could
have linked” the two incidents in his mind would have been a
confession from the assailant or a DNA match.33 (Id. at 219, p.
520.)

Regardless of the credibility of that claimed level of
cluelessness, the record indicates that Evanson eventually did
recognize the connection between the two attacks. On January
14, 2005, the same day that he filed the criminal complaint
against Reedy, Evanson learned from the State Police that the
Landmark attack was linked, by DNA, to other attacks

33
Even on appeal, Evanson continues to say that he never
once thought to connect the two crimes, because “[f]rom [his
own] perspective ... only a confession or a DNA match would
have linked the Landmark and the Reedy incidents.”
(Appellees’ Opening Br. at 15.)

52
throughout Pennsylvania, and that those attacks were believed
to have been committed by a serial rapist. Also that same day,
Evanson sent a copy of the Landmark police report to another
town’s police department via fax, with the subject line “Serial
Rapist.” Soon thereafter, in late January or early February,
Evanson gave details about the Reedy attack during a
teleconference conducted by a State Police task force organized
to catch that serial rapist. Finally, sometime later in February,
Reedy contacted the State Police through a tip line established
to obtain information regarding the serial rapist, and she advised
them that she had been charged with making a false report. On
May 9, 2005, while charges were still pending against Reedy,
Evanson heard from the State Police that Reedy had contacted
them on the rape tip line. Despite all this, the record does not
reveal that Evanson ever reconsidered Reedy’s arrest or made
any effort to investigate whether the Landmark and Reedy
attacks were related.34

Particularly telling as to probable cause is the deposition
of Corporal George Cronin of the State Police, who led the
statewide task force. After comparing the police reports in the
Reedy attack and the Landmark attack, Cronin testified that the
similarities between the two attacks “seemed to be fairly
obvious,” and he answered “yes” when asked whether he would

34
We note these post-arrest events not because they figure
into an analysis of probable cause at the time the arrest took
place but because they may be seen as indicative of Evanson’s
closed mind throughout the entire set of events, if one views all
of the evidence in Reedy’s favor.

53
expect a detective who was investigating both crimes, as
Evanson was, “to recognize those similarities.” (App. at 626.)

The District Court minimized Cronin’s testimony and the
similarities between the attacks, saying that Evanson had no
constitutional duty to further investigate in the hope of finding
exculpatory evidence. Assuming that were true, it is beside the
point. No further investigation was needed to reach the
conclusions expressed by Cronin. All that was required was a
simple comparison of the police reports in the two cases, both of
which were written by Evanson. On the very day he filed the
Affidavit, he participated in a discussion of the Landmark attack
as the work of a serial rapist. Again taking the view of the
record required at this stage, Evanson’s failure or refusal to
compare the two attacks he was investigating – stating that only
a DNA match or a confession would link the two attacks –
demonstrates that he chose to “disregard plainly exculpatory
evidence,” Wilson, 212 F.3d at 790, and that he created the
“unnecessary danger of unlawful arrest,” Malley v. Briggs, 475
U.S. 335, 345 (1986).

v. Probable Cause Conclusion

In sum, within hours of the attack on Reedy, Evanson
concluded that Reedy had fabricated the robbery and sexual
assault. Three months later, another robbery and sexual assault
occurred involving substantial similarities to the attack on
Reedy. The later attack was identified as the work of a serial
rapist. Despite that, Evanson declined to consider that the two
attacks were linked. Six months after Reedy reported that she
had been robbed and assaulted at the Gulf station, Evanson

54
arrested her on the same theory he had formed the night that he
met her at the hospital. Taking all inferences in favor of Reedy,
a reasonable jury could conclude that, at the time the arrest was
made, the facts and circumstances within Evanson’s knowledge
were not sufficient “to warrant a prudent man in believing that
[the suspect] had committed ... an offense.” See Wright v. City
of Phila., 409 F.3d 595, 602 (3d Cir. 2005) (first alteration in
original) (internal quotations omitted).35 Accordingly, on this
record, viewed in Reedy’s favor, it was error for the District

35
Evanson attempts to analogize the present case to Wright,
409 F.3d at 595. However, Wright is significantly
distinguishable. The plaintiff in Wright, after being sexually
assaulted by two men, returned to the house where she was
attacked and broke into that house to retrieve her belongings.
Id. at 597. While there, she took other items that did not belong
to her. Id. Wright was charged with burglary, theft, criminal
trespass, and criminal mischief. Id. at 596. Those charges were
later dropped for failure to prosecute. Id. at 598. Wright then
filed a § 1983 claim for false arrest. Id. We held that the
officers had probable cause to arrest Wright for criminal
trespass on the basis that she admitted to the police that she had
broken a window, entered the house, and removed items from
the house. Id. at 603. Unlike Wright, who admitted to having
committed elements of the crimes charged, Reedy has never
admitted to any crime, but rather has argued consistently that, at
the time of her arrest, there was no probable cause to believe
that she committed any element of any of the offenses for which
she was charged.

55
Court to hold that Evanson had probable cause to arrest Reedy.

vi. Qualified Immunity

The District Court held in the alternative that, even if
there was no probable cause, Evanson is entitled to qualified
immunity. The burden of establishing entitlement to qualified
immunity is on Evanson. See Harlow v. Fitzgerald, 457 U.S.
800, 808 (1982). In Saucier v. Katz, 533 U.S. 194 (2001), the
Supreme Court established a two-part test to determine if a
defendant can be shielded by qualified immunity. First, we must
ask whether, “[t]aken in the light most favorable to the party
asserting the injury, ... the facts alleged show the officer’s
conduct violated a constitutional right[.]” Id. at 201. “If no
constitutional right would have been violated were the
allegations established, there is no necessity for further inquiries
concerning qualified immunity.” Id. If, however, the facts read
in the light most favorable to the plaintiff show a violation of a
constitutional right, as they do here because an arrest was made
without probable cause, we must ask “whether the right was
clearly established ... in light of the specific context of the
case ... .” Id. A right is clearly established if “it would be clear
to a reasonable officer that his conduct was unlawful in the
situation he confronted.” 36 Id. at 202. A defendant police

36
While Saucier mandated that a court must first determine
whether a constitutional right had been violated before asking
whether the right was clearly established (i.e., whether it would
be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted), the Supreme Court has recently

56
officer “will not be immune if, on an objective basis, it is
obvious that no reasonably competent officer would have
concluded that a warrant should issue ... .” Malley, 475 U.S. at
341.

For the reasons described above, it must be said that,
viewing the evidence from Reedy’s perspective, “no reasonably
competent officer would have concluded that a warrant should
issue” when it did for her arrest for making a false report of the
rape, for theft, and for receiving stolen property.37 See Grant v.
City of Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996) (“[C]rucial

clarified that lower courts have discretion to determine the order
of the qualified immunity analysis in order to avoid unnecessary
analysis of challenging constitutional questions. See Pearson v.
Callahan, 129 S. Ct. 808, 818 (2009).

37
Further, qualified immunity exists, in part, to protect police
officers in situations where they are forced to make difficult,
split-second decisions. See Gilles v. Davis, 427 F.3d 197, 207
(3d Cir. 2005) (“Under qualified immunity, police officers are
entitled to a certain amount of deference for decisions they make
in the field [because they] must make split-second judgments –
in circumstances that are tense, uncertain, and rapidly evolving.”
(internal quotations omitted)). There were no “split-second”
decisions made in this case. The Reedy attack occurred on July
14, 2004, the Landmark attack occurred on October 13, 2004,
and Evanson did not file the Affidavit against Reedy until
January 14, 2005, five months after ceasing his investigative
efforts into Reedy’s case.

57
to the resolution of any assertion of qualified immunity is a
careful examination of the record ... to establish, for purposes of
summary judgment, a detailed factual description of the actions
of each individual defendant viewed in a light most favorable to
the plaintiff.”) (internal punctuation omitted). The District
Court thus erred in granting summary judgment on the basis of
qualified immunity.38

B. Unlawful Search: The Blood Claim

i. Background

As earlier discussed, Evanson directed the hospital to
perform drug testing on blood samples taken from Reedy as part
of her rape kit examination. The test results, which Evanson
obtained eight days later through a search warrant, revealed that
Reedy had ingested diazepam and confirmed that she had used
marijuana.

38
Qualified immunity was discussed by the District Court
only with respect to Reedy’s § 1983 claims concerning her arrest
(i.e., her claims of unlawful seizure, false imprisonment, and
malicious prosecution). Our decision on qualified immunity as
to those claims is solely that it is not warranted at the summary
judgment stage in this case. Qualified immunity remains a
viable defense, though its applicability cannot be finally
determined until after the facts have been sorted out at trial.
With respect to Reedy’s other § 1983 claim – her unlawful
search claim – we make no comment on the availability of
qualified immunity as it may pertain to that claim.

58
 Reedy contends that, under Fourth Amendment
standards, Evanson conducted an unreasonable, warrantless
search of her blood by ordering the drug screening.39 Evanson
does not argue that he had a warrant to search Reedy’s blood,
but rather argues that Reedy consented to the search, or
alternatively, that she had no reasonable expectation of privacy
in her blood because it had left her body. The District Court
held that the Fourth Amendment’s protections apply only to
intrusions below the bodily surface, and that Reedy thus lost any
reasonable expectation of privacy in her blood after she
consented to having it drawn as part of her rape kit. The Court
alternatively held that the drug screening Evanson ordered fell
within the scope of the authorization form that Reedy had
signed. On appeal, Reedy challenges both of those conclusions.

We address the consent issue before considering whether
Reedy had a reasonable expectation of privacy in her blood,
because, if Reedy consented to having her blood searched for
drugs, there is no need to ask whether she had a reasonable
expectation of privacy in the blood that was drawn.

39
No one appears to be disputing that Evanson had probable
cause to believe that the blood would reveal that Reedy had used
a controlled substance. Indeed, Reedy had admitted that she had
smoked marijuana. Rather, the issue is that he conducted a
warrantless search.

59
 ii. Consent

The Fourth Amendment’s protection proscribes only
government action. United States v. Jacobsen, 466 U.S. 109,
113 (1984). Although the medical personnel who drew and
tested Reedy’s blood are not government actors, because the
personnel acted at Evanson’s direction, they were effectively
acting as agents of the government. See Lustig v. United States,
338 U.S. 74, 79 (1949), overruled on other grounds by Elkins v.
United States, 364 U.S. 206 (1960) (indicating that evidence
procured with the participation of government actors implicates
the Fourth Amendment).

As a general matter, “warrantless searches ... are per se
unreasonable under the Fourth Amendment.” United States v.
Silveus, 542 F.3d 993, 999 (3d Cir. 2008). “However, there are
several exceptions to this rule.” Id. One of those exceptions is
consent, which, if given voluntarily, authorizes a warrantless
search. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).

“When an official search is properly authorized –
whether by consent or by the issuance of a valid warrant – the
scope of the search is limited by the terms of its authorization.”
Walter v. United States, 447 U.S. 649, 656 (1980). The standard
for measuring the scope of a person’s consent is “objective
reasonableness.” Florida v. Jimeno, 500 U.S. 248, 251 (1991);
United States v. Baker, 221 F.3d 438, 447 (3d Cir. 2000) (same).
We must ask “what ... the typical reasonable person [would]
have understood by the exchange” through which consent was
obtained. Jimeno, 500 U.S. at 251; see also United States v.
Strickland, 902 F.2d 937, 941 (11th Cir. 1990) (describing how

60
“the scope of a permissible search is not limitless ... [but is
r]ather ... constrained by the bounds of reasonableness[.]”).
Consent is “determined from the totality of the circumstances ...
[and] we must examine the circumstances surrounding [the]
consent ... .” United States v. Antoon, 933 F.2d 200, 203-04 (3d
Cir. 1991). Here, those “circumstances” involve Reedy
undergoing a rape kit examination.

While at the hospital, Reedy signed two consent forms
before her blood was drawn for the rape kit. The first form,40
titled “AUTHORIZATION FOR COLLECTION AND
RELEASE OF EVIDENCE AND INFORMATION,” provides
the following:

I, Sara Reedy, freely consent to allow Dr. Jones,
M.D., his medical and nursing assistants and
associates to conduct an examination to collect
evidence concerning an alleged sexual assault.
This procedure has been fully explained to me and
I understand that this examination will include
tests for the presence of sperm and sexually
transmitted diseases and infectious diseases, as
well as clinical observation for physical evidence
of penetration of or injury to my person, or both,
and the collection of other specimens and blood
samples for laboratory analysis.

40
We say “first” only for convenience in referring to the two
forms. While both of the forms were signed on July 15, 2004,
the order in which they were signed is not clear from the record.

61
 I fully understand the nature of the examination
and the fact that medical information gathered by
this means may be used as evidence in a court of
law or in connection with enforcement of public
health rules and law.

I do ... authorize the hospital and its agents to
release the laboratory specimens, medical records
and related information pertinent to this incident,
including any photographs, to the appropriate law
enforcement officials, and I herewith release and
hold harmless the hospital and its agents from any
and all liability and claims of injury whatsoever
which may in any manner result from the
authorized release of such information.

(App. at 274 (emphasis added).)

The second consent form, titled “CONSENT FOR RAPE
EXAMINATION,” provides the following:

1. I, Sara Reedy, hereby authorize Dr. Jones
to perform a medical exam, including, but
not limited to, a pelvic (internal) exam on
my person and to record for the proper law
enforcement agency and personal legal
council [sic] his/her findings as related to
the prosecution of my assailants.

62
 2. I authorize the collection of necessary
specimens for laboratory test [sic] as
related to my case.

3. Any questions I had regarding the
procedure(s) have been answered to my
satisfaction.

(Id. at 525 (emphasis added).) The District Court held that the
“toxicology [drug] screening would fall within the scope of the
[first form], which included ‘the collection of other specimens
and blood samples for laboratory analysis.’” (Id. at 42 (quoting
App. at 274).) That was the only statement the Court made to
support its conclusion that the testing Evanson ordered fell
within the scope of Reedy’s consent. Evanson argues that the
forms “obviously allowed plaintiff’s blood to be drawn and
tested for drugs, and the results shared with the police,”
(Appellees’ Answering Br. at 48,) but beyond that ipse dixit,
offers no explanation as to why the forms authorized Reedy’s
blood to be searched for evidence of drug use.

Having examined the language of the consent forms from
the perspective of an objectively reasonable person in Reedy’s
circumstances, Baker, 221 F.3d at 447, we conclude that
someone who had not been accused of committing any crime
and who had arrived at the hospital to be examined for the
purpose of evaluating the extent of her injuries and risk of
disease from a sexual assault, and for the purpose of gathering
physical evidence to prosecute her assailant, would not
understand that she was also consenting to having her blood

63
tested a second time, at the direction of a law enforcement agent,
for the purpose of collecting evidence to prosecute her.41

The first consent form states that Reedy is agreeing to an
“examination to collect evidence concerning an alleged sexual
assault.” (App. at 274 (emphasis added).) An objectively
reasonable person in Reedy’s situation would likely understand
this phrase to limit her consent to the collection of evidence
regarding the prosecution of her sexual assailant. Drug use had
not been raised as being relevant to the sexual assault at the time
that Reedy signed the form.42 It cannot fairly be said, then, that
an objectively reasonable person would understand that drug use
“concern[ed]” the sexual assault when Reedy made the decision
to consent.

The second form, by its title – “CONSENT FOR RAPE
EXAMINATION” – identifies the scope of Reedy’s consent,
namely, that she was agreeing to a rape examination. In that

41
We are not suggesting that hospital personnel, acting on
their own, would have been constrained by the terms of the
authorization forms from subjecting Reedy’s blood sample to a
toxicology screen. We need not and do not address that issue.
We are concerned here only with the application of Fourth
Amendment principles.

42
From Evanson’s police report, it appears that evidence
regarding the urine samples was shared with him during his
conversation with Reedy, thus indicating that Reedy had signed
the forms prior to speaking with Evanson.

64
form, Reedy authorized “the collection of necessary specimens
for laboratory tests as related to my case.” (Id. at 525 (emphasis
added).) For the reasons described above, from a reasonable
person’s perspective, Reedy’s sexual assault case was about
sexual assault, not drug use. Again, at no time during Reedy’s
dealings with the police or the hospital prior to her signing the
forms, did anyone discuss drug use with her. As a result, at the
time Reedy signed that form, she could not have been expected
to understand that she was consenting to have law enforcement
direct the testing of her blood to show illegal drug use.43

43
Evanson argues that the information about drug use “could
have been used ... to help prove or disprove [Reedy’s] sexual
assault claim.” (Appellees’ Answering Br. at 48.) No reasoning
is provided as to how drug use would have any bearing on the
competing factual scenarios in play here, and we can perceive
none. Evanson also indulges in a non-sequitur, suggesting that
it “does not matter” that he had not yet discussed drug usage
with Reedy because he “had begun to formulate ... a theory
inculpating [Reedy].” (Id.) When analyzing the scope of
consent, the test is the objectively reasonable meaning of the
communication between the person obtaining consent and the
person who has supposedly consented. See Baker, 221 F.3d at
447. It is not what an individual police officer’s inner thoughts
happen to be.
Evanson further argues that if Reedy “had any qualms
about what she was authorizing, she could have refused to sign
the forms ... .” (Id.) However, Evanson does not suggest what
about the forms should have given Reedy qualms. While
competent adults have the duty to read consent forms carefully,

65
 In sum, we conclude that the text of these two
authorization forms is insufficient to show that Reedy consented
to having a law enforcement officer order medical personnel to
search her blood for evidence of drug use for the purpose of
incriminating her, something that is wholly apart from the sexual
assault at issue here.

iii. Expectation of Privacy and Consent

The District Court also held that Reedy lost any
reasonable expectation of privacy after she consented to having
her blood drawn as part of the rape kit, because any subsequent
testing on that blood “did not involve an intrusion below [her]
bodily surface.” (App. at 42.) That holding wrongly discounts
the limits of Reedy’s consent, effectively rendering those limits
a nullity once law enforcement had access to otherwise private
material.

Beyond that, the District Court’s analysis misapprehends
the privacy rights at stake. “A legitimate expectation of privacy
exists when the individual seeking Fourth Amendment
protection maintains a ‘subjective expectation of privacy’ in the
area searched that ‘society [is] willing to recognize ... as
reasonable.’” Doe v. Broderick, 225 F.3d 440, 450 (4th Cir.
2000) (alterations in original) (quoting California v. Ciraolo,
476 U.S. 207, 211 (1986)); see also United States v. Hartwell,
436 F.3d 174, 178 n.4 (3d Cir. 2006) (“[A] Fourth Amendment

there is no duty to be skeptical that one might be consenting to
something not mentioned in the forms.

66
search occurs when the government violates a subjective
expectation of privacy that society recognizes as reasonable.”
(quoting Kyllo v. United States, 533 U.S. 27, 33 (2001))). In
Schmerber v. California, the Supreme Court held that blood
“testing procedures plainly constitute searches of ‘persons’ ...
within the meaning of [the Fourth] Amendment.” 384 U.S. 757,
767 (1966). The Court noted that the “intrusions beyond the
body’s surface” implicate the “interests in human dignity and
privacy which the Fourth Amendment protects ... .” Id. at 769-
70. The Court reasoned that this was so because “[t]he
overriding function of the Fourth Amendment is to protect
personal privacy and dignity against unwarranted intrusion by
the State.” Id. at 767. The District Court in this case cited to
Schmerber but concluded that the Supreme Court intended to
give Fourth Amendment protection only to “forced invasions
below the body surface ... .” (App. at 41.)

To support that reading, the District Court cited our
decision in In re Grand Jury Proceedings (Mills), 686 F.2d 135,
139 (3d Cir. 1982), in which we held that the seizure of “facial
and head hair” did not constitute a search or seizure protected by
the Fourth Amendment because the evidence was “on public
view.” In that case, we distinguished hair samples from “blood
samples, ... [where, unlike hair samples] the bodily seizure
requires production of evidence below the body surface which
is not subject to public view.” Id. The District Court took our
words to mean that the Fourth Amendment protects blood only
when it is “below the body surface” (App. at 41), and held that
Reedy had no claim because the “Fourth Amendment provides
no protection for what a person knowingly exposes to the
public.” (Id. (internal quotations omitted).) The Court also

67
analogized Reedy’s case to United States v. Dionisio, 410 U.S.
1, 8-9 (1973), in which the Supreme Court held that requiring a
witness to produce voice exemplars did not violate the Fourth
Amendment because someone’s voice is exposed to the public.

The District Court’s analogies fail because, unlike one’s
voice or hair, blood is not exposed to the general public, not
even after it has been drawn for medical testing. Agreeing that
the data produced by a blood test can be shared with law
enforcement for the purpose of prosecuting a rapist is not
tantamount to the unrestricted public exposure of the blood
sample in the way people typically expose their voice or hair.
While we did remark in Mills that the taking of blood samples
requires an intrusion below the body surface, 686 F.2d at 139,
we noted that fact only to illustrate why blood samples, as
compared to hair samples, were not “on public view.” Similarly,
in Schmerber, while the Supreme Court noted that the taking of
blood involves intrusion beyond the body’s surface, it did not
say that the blood, once drawn, is no longer subject to a
reasonable expectation of privacy. Instead, the Court held that
blood “testing procedures plainly constitute searches of
‘persons’ ... within the meaning of [the Fourth] Amendment.”
384 U.S. at 767. That holding makes sense, given that an
“overriding function of the Fourth Amendment is to protect
personal privacy and dignity ... .” Id.

However, if there were any doubt about the breadth of the
Supreme Court’s holding in Schmerber, it is dispelled by the
Court’s subsequent decision in Ferguson v. City of Charleston
(Ferguson I), 532 U.S. 67 (2001), and the decision of the United
States Court of Appeals for the Fourth Circuit in that case on

68
remand, Ferguson v. City of Charleston (Ferguson II), 308 F.3d
380 (4th Cir. 2002). In Ferguson I, a state hospital began
performing drug tests on the urine samples of obstetric patients
that met certain criteria. 532 U.S. at 71 & 72 n.4. The hospital
then shared the results of those tests with law enforcement. Id.
at 72. Several women who were arrested after their urine tested
positive for cocaine filed suit, claiming that the drug tests on
their urine were unconstitutional searches. Id. at 73. The state
defended on the basis “(1) that, as a matter of fact, petitioners
had consented to the searches; and (2) that, as a matter of law,
the searches were reasonable, even absent consent, because they
were justified by special non-law-enforcement purposes [or the
‘special needs’ doctrine].” Id.

The Supreme Court addressed the second of those two
defenses, and compared the case to previous ones in which drug
testing had been allowed based on the “special needs”
exception. It specifically cited drug testing of U.S. Customs
Service employees as part of their being considered for
promotion, and testing of high school students as a condition of
their participating in extracurricular activities. Id. at 77. The
Court noted that the invasion of privacy suffered by the
Ferguson plaintiffs was far more substantial than the privacy
invasions in the “special needs” cases because, in the special
needs cases, “there was no misunderstanding about the purpose
of the test or the potential use of the test results, and there were
protections against the dissemination of the results to third
parties.” Id. at 78. Moreover, “[t]he reasonable expectation of
privacy enjoyed by the typical patient undergoing diagnostic
tests in a hospital is that the results of those tests will not be
shared with nonmedical personnel without her consent.” Id.

69
The Court further “recognized that an intrusion on that
expectation may have adverse consequences because it may
deter patients from receiving needed medical care.” Id. at 78
n.14. The Court then remanded the case to the Fourth Circuit
for consideration of the scope of the patient’s consent. In so
doing, the Court specifically admonished that “when [medical
personnel] undertake to obtain ... evidence from their patients
for the specific purpose of incriminating those patients, they
have a special obligation to make sure that the patients are fully
informed about their constitutional rights ... .” Id. at 85
(emphasis in original).

On remand, the Fourth Circuit first explained that it was
“abundantly clear” from the Supreme Court that “any finding of
informed consent must rest on a determination that Appellants
had knowledge, from some source, that no medical purpose
supported the testing of their urine for cocaine; further,
Appellants must have understood that the tests were being
conducted for the law enforcement purpose of obtaining
incriminating evidence.” Ferguson II, 308 F.3d at 397. The
Fourth Circuit considered critical the question of whether the
patients “understood that the request was not being made by
medical personnel for medical purposes, but rather by agents of
law enforcement for purposes of crime detection.” Id.
(emphasis added). After analyzing the relevant language of the
consent forms, the court held that

[nothing] in either form [] advised or even
suggested to Appellants that their urine might be
searched for evidence of criminal activity for law
enforcement purposes. Rather, to the extent the

70
 forms alerted Appellants to the possibility that
their urine would be tested for drugs, Appellants
were led to believe that such tests would be
conducted only if an Appellant’s treating
physician deemed such a test advisable in the
particular circumstances of that Appellant’s
medical care. ... [T]here is no evidence that any of
the urine drug screens were conducted as a result
of a doctor’s independent medical judgment ... .

Id. at 399. The court thus concluded that, “as a matter of law,
neither ... consent form could serve as sufficient evidence of
Appellants’ informed consent to the searches.” Id. Implicit in
the Fourth Circuit’s holding is that the patients had a reasonable
expectation of privacy in urine samples taken from them at the
hospital for medical purposes.

As in Ferguson I and Ferguson II, an important inquiry
about the blood samples at issue here is whether Reedy
understood that her blood was being tested for the law
enforcement purpose of obtaining incriminating evidence
against her. The answer seems plainly to be no. She consented
to having her blood drawn in the context of a rape kit
examination. She had just been sexually assaulted and was
being tested for sexually transmitted diseases and for potential
evidence concerning her assailant. She indisputably had a
reasonable expectation of privacy in her blood when it was
drawn, and she did nothing to forfeit that expectation.

The Fourth Amendment protects against unreasonable
government intrusion into the personal and private aspects of

71
life. There is little that is more personal than an individual’s
bodily integrity. See Schmerber, 384 U.S. at 772 (“The
integrity of an individual’s person is a cherished value of our
society.”) Consequently, Evanson’s warrantless search of
Reedy’s blood for drug use, without Reedy’s consent, violated
the Fourth Amendment.44 The District Court’s conclusion to the
contrary was error.

C. Claim Against Mannell

In her amended complaint, Reedy named Mannell, the
Public Safety Director for Cranberry Township, as a defendant
in all of her federal claims. The District Court granted summary
judgment to Mannell. Reedy argues that the District Court erred
in finding that supervisory liability should not attach to
Mannell.45

44
Were it otherwise, victims of violent crime might be
deterred from receiving much-needed medical care and from
providing the physical evidence necessary for law enforcement
to apprehend and prosecute those who commit such crimes. Cf.
Ferguson I, 532 U.S. at 78 n.14 (warning that such an intrusion
on a reasonable expectation of privacy “may have adverse
consequences because it may deter patients from receiving
needed medical care”).

45
In granting summary judgment to Mannell, the District
Court cited to Monell v. Department of Social Services, 436 U.S.
658 (1978), and stated that Reedy had failed “to meet the
standards needed to impose liability” against Mannell under that

72
 In order to establish supervisory liability, Reedy must
show that Mannell “participated in violating [her] rights, or that
he directed others to violate them, or that he, as the person in
charge ... , had knowledge of and acquiesced in his
subordinates’ violations.” Baker v. Monrow Twp., 50 F.3d
1186, 1190-91 (3d Cir. 1995). Reedy claims that “Mannell not
only supervised, ratified and approved Evanson’s investigation
and charging of Reedy, but also participated along with Evanson
in the events leading up to and following Reedy’s arrest.”
(Appellant’s Opening Br. at 50.) Mannell explained in his
deposition that he is generally kept abreast of how investigations
are going and that he is usually notified by a detective when a
decision is made to take criminal charges to an Assistant District
Attorney for review. However, he does not review the charges
before they go to a prosecutor. With regard to Reedy’s
prosecution, Mannell was Evanson’s supervisor during the
relevant time, and Evanson kept Mannell abreast of “significant
points” (App. at 569), but there is no evidence that Mannell
directed Evanson to take or not to take any particular action
concerning Reedy that would amount to a violation of her
constitutional rights. Accordingly, we affirm the District

case, which deals with liability arising from constitutional
violations as a result of governmental custom or policy. (App.
at 43.) However, when discussing Mannell’s potential liability,
the parties focus on traditional principles of supervisory liability
against Mannell as an individual, rather than on Monell liability.
Accordingly, we analyze Mannell’s potential liability under the
doctrine of supervisory liability, as set forth in Baker v. Monrow
Township, 50 F.3d 1186, 1190-91 (3d Cir. 1995).

73
Court’s grant of summary judgment to Mannell on all of
Reedy’s claims.

D. Intentional Infliction of Emotional Distress

Reedy brought a state law claim of intentional infliction
of emotional distress against both Evanson and Meyer. The
Court granted summary judgment, finding that neither
Evanson’s nor Meyer’s conduct was “extreme and outrageous.”
(Id. at 43.)

While the Pennsylvania Supreme Court has yet to
formally recognize a cause of action for intentional infliction of
emotional distress, see Taylor v. Albert Einstein Med. Ctr., 754
A.2d 650, 652 (Pa. 2000), the Pennsylvania Superior Court has
recognized the cause of action and has held that, “in order for a
plaintiff to prevail on such a claim, he or she must, at the least,
demonstrate intentional outrageous or extreme conduct by the
defendant, which causes severe emotional distress to the
plaintiff.” Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa. Super. Ct.
2005) (discussing how the Pennsylvania Supreme Court has
indicated that, were it to recognize a cause of action for
intentional infliction of emotional distress, these would be the
requirements necessary for a plaintiff to prevail on such a
claim). In addition, “a plaintiff must suffer some type of
resulting physical harm due to the defendant’s outrageous
conduct.” Id. Liability on an intentional infliction of emotional
distress claim “has been found only where the conduct has been
so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”

74
Field v. Phila. Elec. Co., 565 A.2d 1170, 1184 (Pa. Super. Ct.
1989).

Reedy argues that Evanson engaged in several “extreme
and outrageous acts,” and that the District Court erred because
there was “ample evidence of Evanson[’s] ... abusive treatment
of her[.]” (Appellant’s Opening Br. at 56.) Specifically, Reedy
points to Evanson’s denunciations of her, the fact that he
traveled to her home and harassed her, and his recklessly-made
false statements and the omissions in his Affidavit. (Id. at 55-
57.) While one may argue whether Evanson’s conduct was “so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious,” Field, 565 A.2d at
1184, we need not decide the issue, because, to succeed on an
intentional infliction of emotional distress claim, Reedy must
show that she suffered “some type of resulting physical harm
due to the defendant’s outrageous conduct.” Swisher, 868 A.2d
at 1230. Reedy has not pointed to any physical harm she
suffered as a result of police conduct and, for that reason alone,
her intentional infliction of emotional distress claim fails as a
matter of law. We thus affirm the District Court’s grant of
summary judgment on that claim.46

46
Even though Reedy names both Evanson and Meyer in her
emotional distress claim, the only allegations of extreme and
outrageous acts in her briefing before us pertain to Evanson. It
is thus fair to wonder whether she has abandoned her emotional
distress claim against Meyer. Even if not abandoned, however,
Reedy’s emotional distress claim against Meyer fails for the
same reasons that it fails against Evanson. She has not pointed

75
IV. Conclusion

In conclusion, the District Court erred in granting
summary judgment to Evanson on Reedy’s Fourth Amendment
unlawful seizure claim and her related federal and state law
claims. Viewing the facts in the light most favorable to Reedy,
no reasonably competent officer could have concluded at the
time of Reedy’s arrest that there was probable cause for the
arrest. In addition, summary judgment on Evanson’s defense of
qualified immunity cannot stand. The availability of the defense
must be decided after fact finding by the jury to determine
whether the facts as recounted by Evanson or by Reedy are more
credible. We thus vacate and remand for Counts 2, 3, and 4 of
the complaint, as against Evanson, to go to a jury.

The District Court also erred in granting summary
judgment to Evanson on Reedy’s unlawful search claim. We
reverse the Court’s decision with respect to Count 1 of the

to any physical harm suffered as a result of Meyer’s actions.
Accordingly, we affirm the District Court’s grant of summary
judgment to Meyer on Reedy’s emotional distress claim.
We note also that Meyer was listed as a defendant in
Count 5 of Reedy’s complaint (harm to liberty interest in
violation of the Due Process Clause of the Fourteenth
Amendment). However, as discussed above, see supra note 17,
that Count is subsumed by Reedy’s Fourth Amendment counts,
and Reedy did not name Meyer as a defendant in any of those
counts.

76
complaint and remand for consideration of whether qualified
immunity is available to Evanson on that Count.

Finally, we affirm the District Court’s grant of summary
judgment as to all claims against Meyer and Mannell, and as to
Reedy’s intentional infliction of emotional distress claim, Count
8, against Meyer and Evanson.

77