On October 16, 2019, the Fifth Circuit Court of Appeals decided Jones v. Perez[i], which serves as an excellent review of the law related to probable cause, false arrest, and the role of witness credibility in a probable cause determination. The facts of Jones, taken directly from the case, are as follows:
Leonardo Ortega was closing up the Subway sandwich shop where he worked when two men entered with their faces covered. One aimed a gun at Ortega while the other took cash from the register. After a struggle, Ortega was shot. He was pronounced dead when he arrived at the hospital.
Detective Perez was assigned to the case. Two eyewitnesses told her about a third man involved in the murder—a lookout who stood across from the shop and ran off with the other suspects. Perez’s investigation stalled until an anonymous tipster called with information about the third suspect’s identity. According to the tipster, Christopher Miller was bragging about being the lookout. Perez brought him in for questioning.
It soon became clear that Miller might not be the most reliable of witnesses. It appeared to Perez that he had “a low IQ,” and Miller explained that he had smoked synthetic marijuana and drunk a few beers before coming to the station. Miller initially said he had nothing to do with the murder but soon began to waffle. He admitted—occasionally backtracking—that he was there that night. He told Perez that two men he often saw selling drugs at an apartment complex near the murder scene had asked him to watch while they robbed the Subway. Miller knew them only by their nicknames: K.T. and Weezy. It was K.T., he said, who pulled the trigger. Miller’s description of the murder was consistent with what three witnesses had said the night of the crime. He left the police station that night.
The next morning, a few officers took Miller and his brother to the apartment complex to see if they could find K.T. It is unclear who ultimately made the identification, but the officers soon learned that K.T. was Anderson Jones, the plaintiff in this case. A few officers took Miller back to meet again with Detective Perez while a few others tailed Jones.
Those officers say Jones committed a Texas Transportation Code violation when he walked in the street instead of using a sidewalk. So when Jones got in a friend’s car, the officers pulled him over. The officers could smell marijuana during the stop, and a search of Jones’s backpack uncovered some, along with a scale and some baggies. They arrested Jones for marijuana possession and brought him in.
While detained, Jones admitted that his nickname was K.T. but denied any involvement in Ortega’s murder. He said he was with his girlfriend throughout that evening. But when Perez contacted Jones’s supposed alibi, she told a different story. She said she picked Jones up that night from a bus stop near the Subway. Jones was jailed on the drug charge.
Perez returned to questioning Miller. He was obviously distressed and threatened to commit suicide several times. He even attempted to strangle himself with his own shirt and had to be restrained. But he eventually repeated the story he had told Perez the previous night, albeit with some difficulty and with the aid of a few prompts from Perez. Perez decided that she should conduct a photo lineup to see if Miller could identify Jones as K.T. Another D.P.D. officer showed Miller six photographs, one at a time, and asked whether the person pictured killed Ortega. Miller answered “yes” to three of the photographs—one of Jones and two of uninvolved individuals. He explained that he thought the three he picked out all looked like the same person. Perez returned with a single photo of Jones and asked “Who’s that?” Miller answered, “That’s K.T.”
Over the course of the two interviews, a number of inconsistencies appeared in Miller’s story. He first said he was by the sidewalk directly in front of a store adjacent to the murder scene. But after Perez informed Miller that video evidence contradicted him, he said he was in the parking lot by a tree. Though he ultimately told Perez that K.T. and Weezy fled on foot, he initially claimed that they drove away from the scene. At one point he even suggested his mother was at the scene of the crime. And some of his statements were contradicted by other evidence. He recalled that K.T. and Weezy were wearing t-shirts, while the official incident report explains that the suspects were wearing black hoodies. He said K.T. and Weezy dragged Ortega out of the store and shot him there, but the evidence suggests they shot Ortega inside the store. He said the murder weapon was a 9mm pistol, when it was a revolver.
Despite these inconsistencies, Perez used Miller’s statements to obtain an arrest warrant against Jones for capital murder. In her probable cause affidavit, Perez explained that Miller had confessed to participating in and planning the offense, that Miller stated that “Jones shot and killed” Ortega, and that Miller “picked . . . Jones from a photo line up as the person with the gun[] who planned and participated in the offense.” She also said that she had interviewed Jones and that he was “uncooperative.” The warrant was issued and Jones, already detained the day before on the marijuana charge, was booked on the murder charge. His bail was set at $1,000,000.
Several days later, a few of Perez’s superiors learned about her handling of the case. They were particularly concerned that Miller had selected three of the six photos he was shown in the initial lineup and that Perez had corroborated that lineup by showing Miller a single photo of Jones. After reviewing her interviews of Miller, they recommended that the capital murder charge be dropped. It was. Four days later, Jones was released from jail on a personal recognizance bond for his marijuana charge.
The Dallas Police Department investigated Perez’s handling of the case. It determined that she had improperly conducted a one-photograph lineup and that she had “entered inaccurate and incomplete information” in her probable cause affidavit. The Deputy Chief testified that a lineup in which the informant selects half of the pictures is “basically null and void.” Ultimately, Perez was suspended from the force for ten days and removed from the homicide division.[ii]
Jones subsequently filed suit against Detective Perez for violations of his rights under the Fourth and Fourteenth Amendments for arresting him for capital murder. The district court determined that Jones rights were not violated in this case and granted summary judgment dismissing the case against Detective Perez. Jones appealed to the Fifth Circuit Court of Appeals.
On appeal, the Fifth Circuit noted that the district court conducted an analysis of the warrant affidavit using the factors from Franks v. Delaware.[iii] Under Franks, when an officer is accused of violating the Fourth Amendment based on providing false information in a warrant affidavit, the court conducts a two-part analysis. First, they examine whether the officer “knowingly or with reckless disregard for the truth,” provided false information to the magistrate.[iv] Second, the court will reconstruct the warrant affidavit by removing the false information and inserting any material information that was omitted. However, the Fifth Circuit noted that when applying this analysis to civil cases, the Franks analysis to too academic because the standard for an arrest under the Fourth Amendment is “probable cause” whether or not there was a warrant. The court stated
[A]n arrest is reasonable when “there is probable cause to believe that a criminal offense has been or is being committed,” warrant or no warrant. Devenpeck v. Alford, 543 U.S. 146, 152 (2004). That is why our court has, in civil suits challenging arrests, applied a third step after completing the traditional Franks analysis. It asks whether “any reasonably competent officer possessing the information each officer had at the time [s]he swore [her] affidavit could have concluded that a warrant should issue.” Freeman, 210 F.3d at 553. This inquiry is the ultimate liability question in a false arrest case: Did the officer have information establishing probable cause, whether or not that information was included in the warrant?[v]
The court then examined the facts known to Detective Perez to determine if she had probable cause to believe that Jones committed capital murder. First, Miller told Perez that he witnessed the murder. Second, Miller told Perez that someone named “K.T.” committed the murder. Third, other witness’ statements corroborated some of the information that Miller provided. Fourth, Jones provided a false alibi when he stated that he was with his girlfriend at the time of the murder. Fifth, Jones’s girlfriend said that he was not with her but was rather near the crime scene on the night of the murder. Sixth, Jones admitted that his nickname was K.T., which reduced the importance of the photographic line-up and increased the importance of Miller’s reliability as a witness.
Based on the facts enumerated above, the court held Detective Perez did have probable cause to arrest Jones for capital murder. Specifically, the court stated
These facts are enough to clear the probable cause bar. That standard does not require that the officer believe that it is more likely than not that the suspect committed the offense. See United States v. Watson, 273 F.3d 599, 602 (5th Cir. 2001). Instead, the officer must reasonably believe there was a “fair probability” he did. Piazza v. Mayne, 217 F.3d 239, 246 (5th Cir. 2000) (per curiam) (quotation omitted). That fair probability of criminal conduct usually exists just from the statement of a single eyewitness, assuming no reliability concerns. See Phillips v. Allen, 668 F.3d 912, 915 (7th Cir. 2012) (“Identification by a single eyewitness who lacks an apparent grudge against the accused person supplies probable cause for arrest.”); Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“When information is received from a putative victim or an eyewitness, probable cause exists, unless the circumstances raise doubt as to the person’s veracity[.]” (citation omitted)).[vi]
The court of appeals discussed the problems with Miller’s statements to Detective Perez and whether those problems reduced his reliability to below the probable cause threshold. Ultimately, the court decided that Jones’ false alibi and his girlfriend placing him near the scene of the crime were significant factors in the probable cause finding. The court stated that “a false alibi is quite suspicious.”[vii] Based on this and other information provided by Miller, the court held
Because Perez could have reasonably believed probable cause existed when she obtained the warrant for Jones’s arrest, that arrest did not violate his Fourth Amendment rights.[viii]
The court also examined Jones’ Fourteenth Amendment claim. He argued that his right to substantive due process was violated by Detective Perez’s misleading statements and omissions in the warrant affidavit. The court opined
There is no evidence, for instance, that Perez deliberately framed Jones. As we noted above, Perez reasonably believed probable cause existed to charge him with Ortega’s murder. Perez may have presented the evidence against Jones in far too rosy a light, but she did not make it up out of whole cloth such that her attempt to obtain the warrant would “shock the conscience.” Cole, 802 F.3d at 771.
Because the Fourth Amendment, although ultimately unavailing, “provides an explicit textual source of constitutional protection” for the allegations in this case, Jones may not resort to the more nebulous Fourteenth Amendment right. Graham v. Connor, 490 U.S. 386, 395 (1989). His claim based on that amendment also fails.[ix]
Therefore, since there was no intent to frame Jones and since Detective Perez reasonably probable cause existed, the Fourth Amendment was the appropriate claim in this case so the Fourteenth Amendment claim failed.
Practice Pointers:
It is important to note that the court, at the end of the case, did specifically mention that civil liability is not the only manner in which to hold an officer liable for misconduct. The court was referring to the police department taking administrative action and discipline against the detective for violating their internal policies. This underscores the importance of good supervision, as was present in this case. It was the detective’s supervisor’s review of the case that revealed the violations of the policies and standards of the department and resulted in discipline in this case.
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Citations
[i] No. 17-11242 (5th Cir. Decided October 16, 2019)
[ii] Id. at 2-5
[iii] 438 U.S. 154 (1978)
[iv] Jones at 5-6
[v] Id. at 7 (emphasis added)
[vi] Id. at 8 (emphasis added)
[vii] Id.
[viii] Id. at 9
[ix] Id. at 9-10
