On June 19, 2018, the Eleventh Circuit Court of Appeals decided Cozzi v. City of Birmingham et al.[i], in which the court discussed the legal principals involved in a Fourth Amendment false arrest suit. The relevant facts of Cozzi are as follows:
On two consecutive days, a man demanding narcotics robbed a Walgreens pharmacy and attempted to rob a Rite Aid pharmacy. In both instances, the perpetrator wore a partial face mask and handed the pharmacy technician a note that said he was a bomb specialist carrying explosives. At the Walgreens, the man acquired two pill bottles, containing a total of six pills, inside a plastic Walgreens bag. The pills were alprazolam and buprenorphine. At the Rite Aid, the man demanded Lortab and Xanax but left empty handed.
Thomas, a detective with the Birmingham Police Department, investigated the robbery, and another Birmingham Police detective investigated the attempted robbery. Due to the similarities between the two incidents, the detectives believed the same person had committed both offenses. Two witnesses from the Walgreens viewed a photo lineup and identified a man named James Hill as the perpetrator, but Thomas eliminated Hill as a suspect after being told that Hill was incarcerated at the time of the incidents.
While the officers continued their investigation, a surveillance video of the attempted robbery was shown on Crime Stoppers, a television program designed to elicit tips and information from the public about unsolved crimes in the local area. After the video aired, Crime Stoppers received an anonymous tip that Cozzi “resemble[d] the subject featured for the bomb threat.” According to the tipster, Cozzi had a tattoo that said “Lori” on his right hand and lived in Center Point, Alabama.
Meanwhile, a law enforcement officer with the Jefferson County Sheriff’s Office received a similar tip from a confidential informant and sent it to Thomas. The informant stated that he recognized the person in the Crime Stoppers video as Cozzi based on a unique walking style; the hat and shoes the perpetrator wore; and the mask, which the informant said was similar to the kind Cozzi used for painting cars. The informant also provided Cozzi’s address and said that Cozzi had a severe Lortab addiction and drove a purple pickup truck. After another officer drove by the given address and saw a purple truck parked outside, Thomas applied for and received a search warrant for Cozzi’s home. When Thomas obtained the search warrant, the only evidence linking Cozzi to the crimes were the two tips, one anonymous and one from an informant unknown to Thomas, that Cozzi resembled the perpetrator in the crime scene surveillance video shown on television.
Thomas and two other detectives arrived at Cozzi’s house to execute the warrant. They encountered him outside, detained him there, and kept him handcuffed while they searched the inside of his house and truck. The officers found no mask, no note, and no clothing that matched the perpetrator’s. They recovered from the bedroom a plastic bag containing 32 loose pills that they found in a night stand and two locked safes.
Cozzi’s roommate, Michael Thompson, and Cozzi’s girlfriend, Kara Antonoff, were home during the search. Thomas showed Thompson a photograph of the perpetrator taken at the crime scene. Thompson “could see from the picture it was not [Cozzi],” and explained to Thomas that the person in the photograph had “numerous tattoos up and down his arm,” but Cozzi had “only one tattoo.” Even though Cozzi was standing right outside while his home was searched, there is no evidence that the detectives viewed or asked about Cozzi’s tattoo. Cozzi testified that Thomas inquired about his tattoo only after arresting and taking him to the police station. Thomas does not dispute that Thompson told him about the tattoo discrepancy or that he failed to follow up on it before arresting Cozzi.
Thomas testified that during the search he showed Antonoff a photograph of the perpetrator, and she identified the person in the photograph as Cozzi. Antonoff disputed Thomas’s testimony, however, admitting that she said Cozzi looked like the robber in the photograph, but explaining that she did so only after Cozzi had been arrested and taken to the police station. She denied being shown a photograph of the perpetrator before or during the search. On review of summary judgment, we must credit her testimony over Thomas’s.
Thomas arrested Cozzi and took him to the police station. Cozzi was questioned and released the next day after Thomas was unable to “find something that could substantiate a warrant for his arrest.”[ii]
Cozzi subsequently sued the City of Birmingham, Detective Thomas, and other detectives and alleged, among other things, that they violated his rights under the Fourth Amendment by arresting him without probable cause. The district court granted summary judgment to all defendants on all claims except Detective Thomas, who was denied qualified immunity on the Fourth Amendment claim for unlawful arrest. Thomas appealed the denial of qualified immunity to the Eleventh Circuit Court of Appeals.
The court of appeals first discussed qualified immunity. Qualified immunity protects officers from liability when they make reasonable mistakes while engaged in functions that are discretionary, such as whether or not to make an arrest. When determining whether an officer is entitled to qualified immunity, the court uses a two-part test. First, they determine whether a constitutional right was violated. If not, then the officer is entitled to summary judgment, which means the suit is dismissed. If the court determines the officer did violate a constitutional right, they examine whether the right was clearly established, such that another reasonable officer in the same situation would have had fair warning that the conduct at issue violated the Constitution. If the law was clearly established, then the officer is not entitled to qualified immunity. It’s also important to note that at this stage of litigation, the court is required to view the facts in a light most favorable to the plaintiff, or in other words, accept their version of the facts unless there is clear evidence to the contrary, such as video.
The court of appeals next examined the legal principals regarding a Fourth Amendment unlawful arrest claim. The court stated
A warrantless arrest is constitutional under the Fourth Amendment only when it is made with probable cause. See Beck v. Ohio, 379 U.S. 89, 91 (1964). Probable cause exists “when the facts and circumstances within the officer’s knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Lee, 284 F.3d at 1195 (internal quotation marks omitted). In the context of § 1983 claims, however, an officer may be entitled to qualified immunity even if there was no actual probable cause for the arrest; instead, an officer who raises a qualified immunity defense will prevail if there was arguable probable cause. Durruthy v. Pastor, 351 F.3d 1080, 1089 (11th Cir. 2003).
“Arguable probable cause exists where reasonable officers in the same circumstances and possessing the same knowledge as the [d]efendant could have believed that probable cause existed to arrest.” Rushing v. Parker, 599 F.3d 1263, 1266 (11th Cir. 2010) (internal quotation marks omitted). Importantly, in evaluating probable cause, an officer may not “unreasonably disregard[] certain pieces of evidence” by “choos[ing] to ignore information that has been offered to him or her” or “elect[ing] not to obtain easily discoverable facts” that might tend to exculpate a suspect. Kingsland v. City of Miami, 382 F.3d 1220, 1229, 1233 (11th Cir. 2004); see Carter v. Butts Cty., 821 F.3d 1310, 1321 (11th Cir. 2016) (explaining that “no reasonable officer with the information that was readily available to [defendant] at the time he arrested [p]laintiffs could have believed that he had probable cause to arrest them for burglary, criminal trespass, or theft,” where defendant ignored documentation that plaintiffs attempted to present to him establishing that they were authorized to be on the property); see also Sevigny v. Dicksey, 846 F.2d 953, 957 n.5 (4th Cir. 1988) (“Objective inquiry into the reasonableness of an officer’s perception of the critical facts leading to an arrest . . . must charge him with possession of all the information reasonably discoverable by an officer acting reasonably under the circumstances.” (emphasis added) (citation omitted)); BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) (“A police officer may not close her or his eyes to facts that would help clarify the circumstances of an arrest.”).[iii] [emphasis added]
Here, Detective Thomson argued that he had “arguable probable cause” to arrest Cozzi based on (1) the anonymous tip from crime stoppers that said Cozzi resembled the suspect on the surveillance video, (2) the tip from the confidential informant that said that Cozzi resembled the suspect in the robbery, (3) corroboration of “sufficiently detailed information from the informant’s tip to lead a reasonable officer to believe that the informant knew Cozzi”[iv], and (4) the plastic bag that contained 32 loose pills found in Cozzi’s home when they executed the search warrant.
The court then set out to examine the totality of the circumstances in this case to determine if arguable probable cause was present.
They first examined the weight that should be afforded to the tips. The first tip was anonymous and only stated that Cozzi resembled the suspect on the video of the robbery. The second tip was relayed from an informant, but Detective Thomas did not know the informant. Further, the information provided was that Cozzi resembled the suspect in the robbery. The information did provide Cozzi’s address and type of vehicle he drove. However, the court noted that this is easily obtainable information and does not demonstrate significant knowledge of Cozzi. The court stated
[W]hen . . . the information [supplied in an anonymous tip] is sufficiently detailed as to remove suspicion of rumor or revenge; and that information is verified through independent investigation . . . the cumulative effect of all information” may establish probable cause. United States v. Rollins, 699 F.2d 530, 533 (11th Cir. 1983) (emphasis omitted). But the nature of the information matters: law enforcement’s corroboration of innocent and “presently observable facts” may be insufficient to establish reasonable suspicion, much less probable cause. United States v. Lee, 68 F.3d 1267, 1271 (11th Cir. 1995). As the Supreme Court has explained, “[a]n accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity.” Florida v. J.L., 529 U.S. 266, 272 (2000).[v] [emphasis added]
The court also noted that two other eyewitnesses identified a different person as a suspect. This other suspect was cleared when it was determined he was in jail at the time of the crimes.
Most significant, the court observed that the detective was provided significant exculpatory information on the scene by Cozzi’s roommate, Michael Thompson. When the detective showed Thompson a photograph of the suspect, Thompson pointed out that Cozzi only had one tattoo and the suspect in the photograph had multiple tattoos. The detective made no attempt on the scene to verify the tattoo on Cozzi to determine if it matched the suspect in the photograph and video. The court stated
Of course, “a police officer is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest,” but the officer may not turn a blind eye to evidence suggesting that a suspect is innocent by “choos[ing] to ignore information that has been offered to him or her” or by “elect[ing] not to obtain easily discoverable facts.” Id. at 1229.[vi] [emphasis added]
The court of appeals further stated
Under our precedent, this failure was unreasonable. Where a police officer “unreasonably disregarded certain pieces of evidence to establish probable cause or arguable probable cause, . . . reasonable officers in the same circumstances and possessing the same knowledge as the [officer] could not have believed that probable cause existed to arrest the plaintiff.” Id. at 1233. With Cozzi handcuffed and standing right outside the house when Thompson told Thomas about the tattoo discrepancy, Thomas “unreasonably disregarded” evidence establishing that Cozzi was not the perpetrator of the crimes. Id. Under the totality of the circumstances, Thomas therefore lacked arguable probable cause to arrest Cozzi.[vii]
Since the court determined that arguable probable cause was not present, they held that the detective violated clearly established law in making such an arrest. Therefore, they affirmed the denial of qualified immunity for the detective.
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CITATIONS:
[i] No. 17-11011 (11th Cir. Decided June 19, 2018)
[ii] Id. at 2-6
[iii] Id. at 7-9
[iv] Id. at 9
[v] Id. at 11-12
[vi] Id. at 15
[vii] Id.
