On May 17, 2024, the Eleventh Circuit Court of Appeals decided Harris v. Hixon[i], which serves as an excellent review of the law related to liability for arresting the wrong person. The relevant facts of Harris are as follows:
It all began on January 9, 2019, when someone broke into a car and stole a debit card and other items. The case was assigned to Columbia County Sheriff’s Investigator Joseph Bultman. His case report documents the steps he took in his investigation, which led to the arrest of Harris. Bultman began his investigation by speaking to the crime victim. He learned from him that someone was using the stolen debit card to make purchases. Bultman contacted the victim’s bank to get records showing when and where the stolen debit card had been used. By reviewing the debit card transaction details from the bank records, Bultman learned that the card had been used at two Redbox DVD rental kiosks and at two gas stations, all of which were located in a different county from where the car break-in had occurred.
Bultman went to the Redbox locations and the gas stations where the stolen debit card had been used, and he viewed security camera footage from there. The video footage from the two gas pumps provided no leads. But the footage from the two Redbox recordings showed a person using the stolen debit card. He described that person in his report as “a light skinned male with dreads that appeared to be tied up on the top of his head.” Bultman also discovered that the times the Redbox security footage showed the suspect using the stolen debit card matched the times “the financial institution transaction sheet” showed the card had been used at the Redbox locations.
Bultman thought that he recognized the person he saw on the video footage using the stolen debit card at the Redbox locations. He believed it was George Harris, a person he had encountered before in the course of his law enforcement duties. In 2015, there was a fight at a McDonald’s restaurant, and Bultman had arrested Harris for obstructing a law enforcement officer. Harris had pleaded guilty to that crime and had been sentenced to 12 months probation. Sometime thereafter, but before the 2019 investigation in this case (Bultman could not remember exactly when), he had encountered Harris again during a domestic dispute between Harris and his girlfriend. During those two encounters, Bultman had spent a total of an hour to an hour-and-a-half with Harris.
In an effort to confirm that he had correctly identified the person using the stolen card at the Redbox machines, Bultman compared earlier mugshot photos of Harris from previous bookings at a local county detention center and a Facebook photo of him that was available online with the man shown in the Redbox security camera footage. After doing that, Bultman had no doubt that Harris was the person who had used the stolen card at the Redbox machines.
But that is not all Bultman did. He also tried to locate footage from security cameras near the fitness center where the break-in had taken place, but he could not find any cameras near there. He also unsuccessfully attempted to contact Harris at his last known address so he could interview him. All told, Bultman investigated the case over a period of nearly a month.
After doing so, Bultman met with Investigator Hixon of the Sheriff’s Office in Richmond County, which was the county where the stolen debit card had been used. Bultman presented Hixon with the evidence he had gathered during his investigation. He told Hixon that he had interacted with Harris before and was confident that he was the person the security camera recordings showed using the stolen debit card at the Redbox machines.
Investigator Hixon “pulled old mugshots” of Harris. Along with Bultman and three other officers, he compared the earlier mugshots of Harris and his Facebook photograph with the image the video footage showed of the man using the stolen card at the Redbox. All five officers believed that Harris was the man using the stolen card at the Redbox.
Hixon prepared an arrest warrant application charging Harris with two counts of “financial transaction card fraud.” Hixon swore to these facts as establishing probable cause to arrest Harris:
On January 9, 2019, between 2200 and 2300 hours, Jacob Newman reported that his vehicle has been broken into at 3830 Washington Road, Suite 15, Martinez, GA. New[]man further stated that his financial transaction card was stolen during this incident (card number [redacted] from SRP Federal Credit Union). After this incident occurred, two separate transactions were caught on video at the Red Box, located at the Circle K, 2702 Wrightsboro Road, where the card was used f[or] a purchase of $3.24 on January 10, 2019, and the Red Box, located at Walgreens, 3228 Wrightsboro Road, where the card wa[s] used for a purchase of $3.78 on January 10, 2019. These transactions were caught on video tape by the respective businesses and the person making these transactions was identified as George Angel Harris.
The warrant application described the identification in the passive voice: the Redbox suspect “was identified” as Harris. It contained none of the details about the steps in Bultman’s and Hixon’s investigations that led them to identify Harris as the Redbox suspect. Nonetheless, a judicial officer found probable cause and issued two warrants for Harris’ arrest for financial transaction card fraud. There was one warrant each for the two uses of the stolen card, resulting in two charges of financial transaction card fraud.
About six weeks after the two warrants were issued, Harris was a passenger in a car that was involved in an accident in Richmond County, where Hixon had sworn out the warrants. The officer who responded to the accident checked IDs, ran a criminal history check, and discovered the outstanding warrants. Harris was arrested on those warrants and taken to the county jail; he was released on bond a few hours later.
The county district attorney formally charged Harris with two counts of financial transaction card fraud, both of which were later nolle processed. It turns out that Harris was not the person who was shown in the Redbox security video recordings using the stolen debit card after all. He sued the two investigators claiming that they had violated his Fourth Amendment rights.[ii]
Harris sued Investigators Bultman and Hixon and alleged that they violated the Fourth Amendment by conducting an inadequate investigation and malicious prosecution. The investigators filed motions for qualified immunity which the district court granted. Harris appealed to the Eleventh Circuit Court of Appeals. [Note: This article will only focus on the sufficiency of the investigation aspect of this case.]
The court of appeals first discussed legal principles relevant to Harris’s case and stated
[T]he Fourth Amendment does not require a perfect investigation before an arrest is made or a charge is brought. What it requires is a reasonable investigation within the bounds of what can be expected of imperfect people. As the text shows, the Constitution protects against “unreasonable searches and seizures,” U.S. Const. amend. IV, not against imperfect searches and seizures. That is why we have stated that “[t]he touchstone of the Fourth Amendment is reasonableness, and [why] we have stressed that in assessing whether officers acted reasonably it’s not our role to armchair quarterback the officers’ decision.” Davis v. City of Apopka, 78 F.4th 1326, 1337 (11th Cir. 2023) (citations and quotation marks omitted).[iii]
The court also noted that, if the investigators had probable cause, the seizure pursuant to legal process (a warrant) would be reasonable under the Fourth Amendment. The court stated
[T]he Supreme Court has reminded us that, “Probable cause is not a high bar.” District of Columbia v. Wesby, 583 U.S. 48, 57, 138 S. Ct. 577, 199 L. Ed. 2d 453 (2018) (quotation marks omitted); accord Kaley v. United States, 571 U.S. 320, 338, 134 S. Ct. 1090, 188 L. Ed. 2d 46 (2014); Davis, 78 F.4th at 1334. As we held in Davis last year, probable cause does not require proof beyond a reasonable doubt or even proof by a preponderance of the evidence that the person arrested for a crime is guilty. 78 F.4th at 1334.
Instead, probable cause exists if the totality of the circumstances could persuade a reasonable officer that there is a “substantial chance of criminal activity by the person who is arrested.” Id. at 1334 (quotation marks omitted). “A substantial chance is all that is required, not an actual showing of such activity.” Id. at 1335 (quotation marks omitted); see also Washington, 25 F.4th at 902 (holding that the correct standard to evaluate whether an officer had probable cause to arrest a suspect is to “ask whether a reasonable officer could conclude that there was a substantial chance of criminal activity“).[iv]
Additionally, the court noted that just because charges are subsequently dismissed does not negate that probable existed at the time of a person’s arrest.
The court of appeals also examined the Supreme Court case, Hill v. California,[v] which they described as “instructive.” In Hill, officers observed a man that they believed was a suspect that they had been searching for. The man protested that he was not their suspect, and he showed them identification showing that he was not. The police did not believe him and arrested him. It was later learned that the police were wrong, and he was not the correct suspect. Regarding this, the court stated
Still, the Court held that “the arrest [of the wrong man] and the subsequent search were reasonable and valid under the Fourth Amendment.” Id. at 805. It explained that “sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before [the Court] the officers’ mistake was understandable and the arrest a reasonable response to the situation facing them at the time.” Id. at 804; see also Rodriguez v. Farrell, 280 F.3d 1341, 1346-49 (11th Cir. 2002) (holding there is no Fourth Amendment violation when an officer misidentifies a suspect and arrests the wrong person based on a “reasonable mistake” when executing a warrant) (quotation marks omitted).[vi]
The court of appeals then noted the steps that Investigator Bultman took in the investigation at issue in Harris’s case. The steps were as follows: (1) Bultman went to both crime scenes (the car break-in and the credit card fraud); (2) Bultman spoke with the victim; (3) Bulton reviewed bank records related to use of the stolen card; (4) Bultman sought and obtained security camera footage where the stolen credit card was used; (5) Bultman reviewed the video; (6) Bultman relied on his knowledge of Harris, whom he arrested once before and met on a domestic violence call; (7) Bultman compared a picture of Harris from Facebook to the video; (8) Bultman tried to locate Harris by going to his last known address; (9) Bultman showed all the evidence he gathered to Investigator Hixon, who obtained previous mugshots of Harris; and (10) Hixon, Bultman and three other investigators compared photos of Harris to the suspect at the Redbox, and all five investigators believed Harris to be the suspect.
It is important to noted that officers are not allowed to ignore exculpatory evidence or refuse to take an obvious investigatory step that would negate probable cause. As the court of appeals stated
It is true that officers cannot unreasonably and knowingly disregard or ignore evidence or refuse to take an obvious investigative step that would readily establish that they lack probable cause to arrest a suspect. See id. at 1294. But in our decisions holding that officers have conducted constitutionally inadequate investigations and have arrested suspects without probable cause, the evidence that they should have considered was not speculative and the possibility of gathering it was not aspirational. By contrast, the officers in those cases ignored:
[C]oncrete evidence that obviously and definitively rules out probable cause: multiple tattoos on the perpetrator’s arm, which the suspect did not have, Cozzi . . ., 892 F.3d [at] 1292-94 . . .; documents showing authorization to be in a house, which conclusively established innocence, Carter v. Butts Cnty., 821 F.3d 1310, 1320-21 (11th Cir. 2016); or a description of a marijuana-seller in her twenties while the person arrested was in her forties, coupled with the officer’s own “serious doubts” that the person arrested was the perpetrator, Tillman v. Coley, 886 F.2d 317, 318-21 (11th Cir. 1989). Accord Huebner [v. Bradshaw], 935 F.3d [1183,] 1190 n.5 [(11th Cir. 2019)] (characterizing the tattoo evidence in Cozzi as “immediate and conclusive evidence that” the plaintiff was not the perpetrator).
Davis, 78 F.4th at 1343-44; see also id. at 1343 (“[E]ven where officers see or hear some exculpatory evidence, the fact that they still conclude probable cause exists does not mean they ignored or turned a blind eye or deaf ear to the exculpatory evidence. The probable cause determination depends on the totality of the evidence, inculpatory and exculpatory.”); Washington, 25 F.4th at 902 (explaining that the arresting officer “was not required to believe [exculpatory evidence] or to weigh the evidence in such a way as to conclude that probable cause did not exist“).[vii]
Thus, while officers must consider exculpatory evidence, they are not always required to determine that it negates probable cause. Rather, they are required to be reasonable, based on the totality of the circumstances.
The plaintiff’s expert made assertions that the investigators should have taken additional steps, however, the court of appeals stated they would “not assume the role of Investigator-in-Chief and criticize the investigation” conducted by Bultman and Hixon, finding that they should have done more based on the plaintiff’s assertions.[viii] Additionally, the court noted that Harris has not pointed to any concrete evidence that the investigators ignored in this case.
Therefore, the court of appeals held that the investigation conducted by Investigator Bultman and Investigator Hixon did not violate Harris’ rights under the Fourth Amendment.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
_________________________________________
Citations
[i] No. 22-12493 (11th Cir. Decided May 24, 2024)
[ii] Id. at 2-8
[iii] Id. at 8-9 (emphasis added)
[iv] Id. at 9-10 (emphasis added)
[v] 401 U.S. 797 (1971)
[vi] Id. at 10-11 (emphasis added)
[vii] Id. at 18-19 (emphasis added)
[viii] Id. at 19
