On October 26, 2021, the Fourth Circuit Court of Appeals of decided Trail v. Cressell[i], which serves as an excellent review of the law related to malicious prosecution under the Fourth Amendment. The relevant facts of Trail are as follows:
In September 2013, a CI contacted Inv. Cressell and Virginia State Police Special Agent Michael Carter, Cressell’s colleague on the regional drug task force, stating that the CI could purchase Diazepam, which the CI referred to as “Nerve Pills,” from a female who lived on Case Knife Road in Pulaski, Virginia. (Dep. of David Cressell 15:25-17:24, Mar. 12, 2020 [ECF No. 28]; Pulaski County Sheriff’s Office Narrative, 2013-21822, Def.’s Ex. 2 [ECF No. 17-2].) At the time of this initial contact, the CI told Cressell the female subject’s name was Lynn, and that she lived with a male named Jason Ayers.
Following this conversation, Inv. Cressell and Special Agent Carter drove to the area described by the CI and determined that the residence was likely 1528 Case Knife Road. Cressell and his partner then met with the CI at a staging location to discuss logistics for conducting a controlled buy from the female target, Lynn. At this meeting, the CI clarified that Lynn was a white female who had recently served 44 months in jail. The CI added that Lynn had cancer and had recently had surgery.
After this meeting, the CI, wearing a hidden audio recorder, returned to 1528 Case Knife Road for the controlled buy. According to the officers’ reports, the CI entered the residence and purchased 20 Diazepam tablets from Lynn for $20. During her post-transaction debrief with Cressell, the CI stated that Lynn had handled the exchange and that Jason Ayers had been present inside the residence during the deal. Later that evening, the CI texted Cressell stating that Lynn’s last name was “Trail.”
Because Inv. Cressell was not familiar with Lynn Trail, he contacted Detective Daniel Grim, a colleague from the Pulaski police department, to see if he could help identify the female target. The following day, Det. Grim responded to Cressell that his female target’s name was Linda Carol Trail. Grim added that Linda Trail lived with Jason Ayers and was recovering from cancer treatment.
As it turned out, Det. Grim provided an incorrect name, but neither officer knew that at the time. Grim based his assertion about the identity of the female target on an investigation he had conducted a year prior at 1528 Case Knife Road related to the malicious wounding of Jason Ayers. According to the police report about that incident, “Linda Carol Trail” was a witness to that crime. Although the report listed Linda Carol Trail’s address as 1528 Case Knife Road in the narrative section, her address was listed as 1982 Snider Lane, Pulaski, Virginia, in the “involved parties” section of the report. (See ECF Nos. 17-1,17-2.) Inv. Cressell never requested—and Grim never provided Cressell with—that incident report. As Grim later testified, the identification was incorrect, and Ayers’s female companion in 2012 and 2013 was likely Lynn Trail, a different person entirely. (Dep. of Daniel Grim 9:6-7, Mar. 12, 2020 [ECF No. 27].)
After receiving the name “Linda Carol Trail” from Grim, Inv. Cressell accessed the Virginia DMV database and retrieved a nine-year-old photograph of Linda Trail. He then showed this photograph to his CI, but the CI was unable to identify Trail as the person who sold her the pills. (Cressell Dep. 22:10-13.)
Inv. Cressell later testified that the CI’s inability to identify the photograph of Linda Trail gave him pause (Id. at 22:14-16), and he even noted in his report that he would attempt to obtain “a more current picture to show this CI,” (ECF No. 17-2). Cressell did not, however, take any additional steps to investigate the discrepancy between the name given by the CI (Lynn) and the one provided by Grim (Linda). Specifically, Cressell did not obtain or show the CI a more recent DMV photograph of Linda Trail, and he testified that he was “not aware of” taking the additional investigative steps of running the names Lynn Trail or Jason Ayers through any law-enforcement databases. (Cressell Dep. 17:15-18.) Cressell also did not recall if he ran Linda Trail’s name through any other databases, such as the National Crime Information Center (NCIC) or an analogous Virginia-based platform, to see if she had a prior criminal record or to gather pertinent background information, including whether she was a current resident of the Town of Pulaski, Pulaski County, or even Virginia.
Ten months later, in April 2014, Inv. Cressell proceeded to a state grand jury and obtained an indictment against Linda Trail for felony drug distribution. At his deposition in this case, Cressell testified he did not recall whether he informed the grand jury that his CI had provided a different first name than the one listed in the indictment, or that the CI had not been able to identify the DMV photograph of Linda Trail as the female who sold her the Diazepam.”[ii]
Trail sued the Investigator Cressell for malicious prosecution under state law and under the Fourth Amendment. The district court denied qualified immunity for the investigator, and he appealed to the Fourth Circuit Court of Appeals.
On appeal, Investigator Cressell argued that the arrest was supported by probable cause, and he was entitled to qualified immunity.
The court of appeals first discussed qualified immunity and stated
Qualified immunity protects government officials from civil liability and suit insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Attkisson v. Holder, 925 F.3d 606, 623 (4th Cir. 2019) (internal quotation marks omitted). “To overcome an official’s claim of qualified immunity, the plaintiff must show: (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Id. (internal quotation marks omitted).[iii]
Thus, to defeat the investigator’s qualified immunity, the plaintiff must first allege sufficient evidence to show a constitutional violation and second, must show that the law is clearly established such that any reasonable officer would have known the conduct at issue was a constitutional violation.
The court then noted that Trail has alleged a Fourth Amendment claim that contains the same elements as a claim for malicious prosecution. Specifically, the plaintiff must show (1) the investigator seized the plaintiff pursuant to legal process (2) that was not supported by probable cause and (3) the criminal proceeding was terminated in favor of the plaintiff.
In Trail’s case, the prosecutor eventually dropped the charges against Trail so the third element, whether the prosecution was terminated in Trail’s favor, was met. Further, the prosecution began with an arrest warrant, therefore, it was initiated by legal process. Thus, the court must examine whether the warrant was supported by probable cause.
The court of appeals then discussed the law that is relevant to the probable cause issue and stated
Probable cause to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed an offense.” Humbert v. Mayor & City Council of Balt. City, 866 F.3d 546, 555 (4th Cir. 2017) (alterations and internal quotation marks omitted). We evaluate probable cause under an objective standard, considering the totality of the circumstances known to the officer at the time of the seizure and without consideration of the subjective beliefs of the officer involved. See Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017). An investigating “officer may not disregard readily available exculpatory evidence of which he is aware,” but his “failure to pursue a potentially exculpatory lead is not sufficient to negate probable cause.” Wadkins v. Arnold, 214 F.3d 535, 541 (4th Cir. 2000). The “officer need not exhaust every potential avenue of investigation,” but must “assemble individualized facts that link the suspect to the crime.” Munday, 848 F.3d at 254 (alteration and internal quotation marks omitted).[iv]
In Trail’s case, she was indicted by a grand jury for the charges brought by Investigator Cressell. The court stated that an indictment by a grand jury has previously been held by the Supreme Court to conclusively show the existence of probable cause. However, if the officer deliberately or recklessly provided false information or failed to provide exculpatory information, then the indictment does not shield the officer. Specifically, the court stated
It has long since been settled by the Supreme Court that an indictment, fair upon its face, returned by a properly constituted grand jury, conclusively determines the existence of probable cause.” Durham, 690 F.3d at 189 (internal quotation marks omitted). But “a grand jury’s decision to indict will not shield a police officer who deliberately supplied misleading information [or failed to supply relevant information] that influenced the decision.” Massey, 759 F.3d at 356-57 (internal quotation marks omitted). False statements or omissions violate the Fourth Amendment only if they are both “material, that is, necessary to the finding of probable cause,” and “made deliberately or with a reckless disregard for the truth.” Id. at 357 (internal quotation marks omitted). Reckless disregard can be demonstrated by showing that the officer “entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported,” Humbert, 866 F.3d at 556 (internal quotation marks omitted), or “failed to inform the judicial officer of facts he knew would negate probable cause,” Miller v. Prince George’s Cnty., 475 F.3d 621, 627 (4th Cir. 2007) (alteration and internal quotation marks omitted).[v]
Thus, intentionally or recklessly omitting facts that would negate probable cause constitutes a Fourth Amendment violation.
The court of appeals then applied the facts of Trail’s case to the legal principles above. The court noted that the investigator did not inform the grand jury that the name the informant provided did not match the name on the indictment (Trail). Further, the investigator did not inform the grand jury that the informant could not identify Trail as the woman who had sold her drugs. Additionally, the investigator stated that the informant’s failure to identify Trial caused him concern, but he did not conduct an additional investigation or notify the grand jury of that information.
In light of the above, the Fourth Circuit held that, viewing the facts in a light most favorable to the plaintiff, as they are required to do at this stage of the litigation, Trial has met her burden of showing a constitutional violation to satisfy the first prong required to defeat qualified immunity.
The court then examined whether the law was clearly established such that any reasonable officer would have known that the conduct in this case was a violation of the Fourth Amendment. The court stated that they previously held, in Miller v. Prince George’s Cnty,[vi] that failing to inform a judicial officer of facts that he knew would negate probable cause violates the Fourth Amendment. As such, they held that the law was clearly established.
Therefore, the court of appeals affirmed the denial of qualified immunity for the investigator in this case.
[i] No. 20-2219 (4th Cir. Decided October 26, 2021 Unpublished)
[iii] Trail, 20-2219 at 1-2 (emphasis added)
[iv] Id. at 3-4 (emphasis added)
[v] Id. at 4-5 (emphasis added)
[vi] 475 F.3d 621 (4th Cir. 2007)