United States Court of Appeals
For the First Circuit
No. 02-2549
BARBARA VALENTE and A. RICHARD VALENTE,
Plaintiffs, Appellants,
v.
WILLIAM J. WALLACE, JOHN DOE,
and TOWN OF ANDOVER,
Defendants, Appellees.
__________
ADECCO,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Thomas F. Healy with whom Thomas E. Sartini, III and Healy &
Healy, P.C. were on brief for appellants.
Regina M. Ryan with whom Douglas I. Louison and Merrick,
Louison & Costello were on brief for appellees William J. Wallace
and Town of Andover.
June 16, 2003
BOUDIN, Chief Judge. The issue on this appeal is whether
in January 2000, the police in Andover, Massachusetts, had probable
cause to arrest Barbara Valente for planting anonymous bomb threats
in her place of work.
In August 1997, Valente began work as an on-site manager
for ADECCO Employment Services ("ADECCO"), then known as TAD, at a
Hewlett-Packard ("HP") plant in Andover, Massachusetts. The HP
plant was a large one, comprising seven buildings and employing
over 2,500 people. Between August 1997 and January 1999, seven
anonymous bomb threats and fourteen anonymous notes expressing
spite or workplace dissatisfaction appeared at the plant. By way
of example, one bomb threat read:
There is a bomb planted in building 2. To get
you and to get Sheila and to get anyone who
keeps us here on a dangerous day. It will go
off when I leave at two! Goodbye to you.
Several of the notes were found by Valente--one
purportedly signed with her first name--and twenty-one of the
twenty-four notes were in the building in which she worked. After
the first bomb threat in November 1997, the Andover police began an
investigation. The detective then heading the case identified a
suspect (not Valente) by handwriting, and HP retained a handwriting
analysis firm with adequate credentials: McCann and Associates.
McCann deemed the samples inconclusive and the investigation
lapsed.
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In September 1998, Valente began three months of
maternity leave to care for her newly adopted child. During this
time, two more notes were discovered and in January 1999, the
investigation resumed under the charge of Detective William
Wallace. More handwriting samples were obtained, this time from
nine employees including Valente. McCann determined that for the
fourteen notes as to which it could draw conclusions, only Valente
could not be ruled out as a suspect; but McCann also said that she
could not be "conclusively" identified based on the samples
available.
More samples of Valente's handwriting were secured and in
November 1999, McCann concluded that it was "more probable than
not" that Valente was the author of three bomb notes, including two
found when she was on leave, and eleven of the other notes.
Wallace met with McCann representatives who, with slides or similar
means, displayed the similarities on which they relied and repeated
their conclusion. Wallace also determined that Valente could have
visited the HP building in question during her leave, although he
had no proof that she had done so.
On January 5, 2000, at Wallace's request Valente came to
the police department. In the discussion that followed, Wallace
deemed Valente's rather terse disclaimers not what he expected from
an innocent person--she simply said she knew nothing about the
notes; he also found her to be very nervous, her skin reddening and
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breaking out in hives. At the close of the interview, Wallace and
his supervisor agreed that Valente should be arrested and a
warrantless arrest was effected on three counts of creating a bomb
scare, each of which carried a maximum punishment of 20 years'
imprisonment under Massachusetts law. Mass. Gen. Laws. ch. 269, §
14(b)(1), (c) (2002).
Valente was never prosecuted. A criminal complaint was
dismissed when the prosecutor failed to meet a discovery deadline.
During the period after her arrest and when Valente was not working
at the plant, yet another note was found and suspicion fell on
another employee. In July 2001, Valente brought the present civil
rights action against Wallace, his supervisor and the town, 42
U.S.C. § 1983 (2000), charging that she had been arrested without
probable cause in violation of the Fourth Amendment.1
After discovery, the district court granted summary
judgment on the merits in favor of the police, ruling from the
bench that they had probable cause for the arrest, a ground that
also disposed of any derivative claim against the town. In the
alternative, the district court found that the two individual
officers were entitled to qualified immunity. Valente now appeals.
Our review on summary judgment is de novo. See Roche v. John
Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1st Cir. 1996).
1
State law claims against the police were also asserted and HP
and ADECCO were named as defendants on a civil conspiracy theory
but none of these claims is pursued in this court.
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For a warrantless arrest, the Fourth Amendment is taken
to require "probable cause," Wong Sun v. United States, 371 U.S.
471, 479 (1963), and the broad outlines of the concept are
familiar. See generally, 2 LaFave, Search and Seizure ch. 3 (3d
ed. 1996). But the case law on probable cause harbors one central
ambiguity and a host of smaller issues. The ambiguity exists
because the Supreme Court has told us that probable cause means
more than "bare suspicion" but less that what would be needed to
"justify . . . conviction." Brinegar v. United States, 338 U.S.
160, 175 (1949). A good deal of territory lies in between.
Within this territory, the Supreme Court has said that
the question is whether the evidence would "warrant a man of
reasonable caution" in believing that a crime has been committed
and committed by the person to be arrested. Beck v. Ohio, 379 U.S.
89, 96 (1964). See United States v. Reyes, 225 F.3d 71, 75 (1st
Cir. 2000). The emphasis is on calculating likelihoods. E.g.,
Brinegar, 338 U.S. at 175. Whether this excludes all other factors
and whether the likelihood must be "more likely than not" are
questions arguably unsettled;2 but, centrally, the mercurial phrase
"probable cause" means a reasonable likelihood. Illinois v. Gates,
462 U.S. 213, 235 (1983).
2
The conflicting Supreme Court case law on both points is
chronicled in detail in LaFave, supra at § 3.2(e). On the latter
issue, the Court in Gates has suggested that the question may not
be all that useful, presumably because the odds can rarely be
determined with such precision. Gates, 462 U.S. at 235.
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In our case, the bomb threats constituted a crime so the
only question is whether the police had probable cause to believe
that Valente was the culprit. The test is objective and turns on
what a reasonable police officer would conclude based on the
evidence actually available at the time (and not on unknown facts
or subsequent events). Roche, 81 F.3d at 254. On the facts known
to Wallace at the time, we hold that a reasonable police officer
would be warranted in the belief that Valente had sent some of the
notes.
The main reason for this conclusion is that a seemingly
qualified expert handwriting examiner had said that the notes were
more likely than not written by Valente. This is not conclusive as
to probable cause (for reasons to which we will return) but it is
a powerful start. Cf. Roche, 81 F.3d at 255 (voice
identification). And it is worth noting that Wallace did not just
take the expert's summary conclusion; he met with the McCann
representatives and watched them explain graphically why they were
persuaded.
If Valente's fingerprints had been found inside a threat
letter first opened by the police, it could hardly be doubted that
probable cause would exist. Handwriting analysis is a less
rigorous means of identification, e.g., Mnookin, Scripting
Expertise, 87 Va. L. Rev. 1723, 1726-27 (2001), depending inter
alia on how distinctive the handwriting might be, the number and
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type of samples, and the competence of the examiner. See United
States v. Mooney, 315 F.3d 54, 62-63 (1st Cir. 2002). Normally,
the examiner can do no more than speak of probabilities. But here
the examiner did say, "more likely than not," which is the most
that the Fourth Amendment requires. See note 2 above.
This is not the end of the story. Plenty of other
evidence might be available to the police to reinforce--or to
rebut--an expert's view that the suspect more likely than not wrote
a threat note. Suppose the note contained information almost
certainly known only to the suspect or, conversely, information
that the suspect would be most unlikely to know. Or there might be
information about motive and access, two staples of criminal
investigation. The initial expert judgment might have to be
adjusted; conceivably, "probable cause" could vanish based on new
data.
Here, the notes had begun not long after Valente joined
the company, and most were found in the building where she worked.
See United States v. Brown, 457 F.2d 731, 733 (1st Cir. 1972). All
of this is mildly helpful to Wallace, although how far depends in
part on the size of the workforce, turnover, and similar data; some
of the facts, and what the police knew on these points, are
obscure. The police do appear to have checked to see whether
Valente could have had access during her three-month leave and
found that this could not be ruled out.
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There is also Valente's behavior during the interview at
the police station. According to Wallace, she was both unduly
taciturn (he said that the usual innocent person protests much more
strongly when wrongly accused) and extremely nervous. Frankly, to
a layman, neither of these symptoms seems very revealing. However,
the case law does give some weight both to demeanor evidence, e.g.,
United States v. One Lot of U.S. Currency, 103 F.3d 1048, 1055 (1st
Cir. 1997), and to the experience of the police. E.g., United
States v. Ortiz, 422 U.S. 891, 897 (1975). In fairness to Wallace,
he said that the interview was primarily to see if Valente could
counter the inference he had already drawn.
Thus, at the time of the arrest, the police had expert
evidence that Valente was more probably than not the note writer;
she had apparent access to the site throughout the period before
her arrest; most of the notes were discovered near or not far from
where she worked; there was no specific motive attributable to her
but disgruntled employees are not unknown; and there was apparently
no other then-current suspect against whom a strong case existed.
This, in our view, is probable cause for an arrest. See Roche, 81
F.3d at 254-55.
What has been said above largely disposes of Valente's
arguments on this appeal. Her counsel claims that we should look
only at the McCann report because Wallace, in a deposition taken
two and a half years after the arrest, said that this was the only
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evidence of guilt and her nervousness was not mentioned in the
arrest report. But Valente's access, proximity to the notes and
nervousness at the interview were contemporaneous events known to
the police and doubtless considered by them even if not formally
designated evidence of guilt.
Finally, Valente says that a psychological profile
commissioned by HP allegedly suggested that the culprit had traits
that differed from Valente's. However, while handwriting is an
inexact science, psychological profiling appears to be even more
inexact; handwriting experts have been routinely used in courts for
a century now, Mnookin, supra, at 1726, while psychological
profiling remains primarily a law enforcement device for narrowing
the field of suspects and is rarely admissible in court. 1
Giannelli & Imwinkelried, Scientific Evidence §9.7 at 479 (3d ed.
1999). If the profile counts at all in the probable cause
calculus, it does not alter the result in this case.
Affirmed.
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