On November 17, 2021, the Eleventh Circuit Court of Appeals decided Kinnemore v. Cochran[i], which serves as an excellent review of the law related to malicious prosecution claims under the Fourth Amendment.
In this case, on November 23, 2017, Kinnemore was arrested for aggravated assault, battery, and cruelty to a child after a domestic violence incident with his wife. The remaining facts, taken directly from the case are as follows:
On November 28, 2017, Amanda obtained a temporary protective order against Kinnemore. See O.C.G.A. § 19-13-3. The order “enjoined and restrained [Kinnemore] from doing, attempting to do, or threatening to do, any act of . . . harassing . . . [Amanda] and/or the minor child in any manner” and from “harassing . . . the family or household.” The order also barred Kinnemore from “contact[ing] [Amanda] at any place . . . for the purpose of harassing or intimidating [her].”
The same day, Kinnemore was released on bond. The terms of his bond allowed him one visit to the family home accompanied by law enforcement to collect his belongings. Officers served Kinnemore with the protective order as he left the jail.
On November 29, 2017, Kinnemore photographed the Entry of Service on the protective order. He logged into his iCloud account and uploaded the photograph to his account. He next logged into the family iCloud account, shared the photograph with his wife and daughter, and then removed himself from the family account.
Amanda reported Kinnemore’s conduct to the Paulding County Sheriff’s Office. When Detective Cochran interviewed Amanda, she “appear[ed] to be very scared” and stated that she was “in fear for her life.” Amanda showed the detective screenshots of her cellular telephone that showed the photograph Kinnemore had sent and two notifications she had received that Kinnemore had shared the photograph using the family iCloud account and that he had left the account. Amanda also showed the detective a screenshot showing the different appearance of the family iCloud account while Kinnemore was a member and after he removed himself from the account.
During her interview, Amanda reported more harassment by Kinnemore and his family. She stated that, after Kinnemore contacted her through iCloud, he made an unscheduled visit to their home around 10 p.m. accompanied by officers of the Dallas Police Department to collect his car and clothes. She also stated that Kinnemore’s father, cousin, and brother later attempted to send her messages through Facebook, but she blocked all conversations with them. Amanda provided the detective screenshots of the messages from Kinnemore’s family.
Based on Amanda’s interview, and after reviewing her hospital records and information regarding Kinnemore’s arrest, Detective Cochran applied for a warrant to arrest Kinnemore for aggravated stalking. See O.C.G.A. § 16-5-91(a). The application stated that Kinnemore had “knowingly, willfully, without consent and with the purpose of harassing and intimidating Amanda . . ., contact[ed] [her] in violation of Family Violence Ex Parte Protective Order ordered by Judge Dean Bucci, Superior Court of Paulding County on November 28, 2017.” The detective alleged that “Kinnemore did take a picture of the Sheriff’s Entry Of Service form for which [he] was served a Family Violence Ex Parte Protective Order on 11/28/2017 under Civil Action Number 17-CV-2906-P3”; he “uploaded the picture to an Apple iCloud under his account and then shared the picture on 11/29/2017 to . . . Amanda Kinnemore’s iCloud family account so that she would receive a copy of the picture”; and he “then removed himself from the family iCloud account.” (emphasis added)
Detective Cochran obtained a warrant to arrest Kinnemore, which deputy sheriffs executed. Later, the state moved to revoke Kinnemore’s bond.
Judge Bucci held a preliminary hearing and modified Kinnemore’s bond. The judge found that probable cause existed to arrest Kinnemore for aggravated stalking and, although his subsequent trip home did not violate his bond, “add[ing] conditions” to “the bond [would] make [his wife] feel a little more secure.” The new conditions “barred [Kinnemore] from entering Paulding County, Georgia,” except to handle legal matters, and from having any “contact, direct or indirect,” with his wife and daughter.[ii]
The aggravated stalking warrant was subsequently dismissed, and Kinnemore filed suit against Detective Cochran for malicious prosecution under the Fourth Amendment. The district court granted summary judgment in favor of the detective and dismissed the case, finding that a reasonable officer could believe that there was at least arguable probable cause to obtain a warrant for Kinnemore for aggravated stalking based upon the fact that he uploaded a photo to the family iCloud account and shared it with his wife and his daughter. Kinnemore appealed the grant of summary judgment to the Eleventh Circuit Court of Appeals.
On appeal, Kinnemore argued that the warrant application was insufficient to establish probable cause that he committed aggravated stalking and that that warrant caused him to be seized and maliciously prosecuted in violation of the Fourth Amendment.
The court of appeals first discussed the legal requirements for Kinnemore to defeat the detective’s motion for qualified immunity in this case. The court stated
For Kinnemore to defeat Detective Cochran’s claim of qualified immunity, he “must prove that he suffered a seizure pursuant to legal process that violated the Fourth Amendment, and satisfy the elements of the common law tort of malicious prosecution.” Luke v. Gulley, 975 F.3d 1140, 1144 (11th Cir. 2020) (internal quotation marks and citations omitted). Because a claim of “[m]alicious prosecution . . . requires a seizure pursuant to legal process,” Aguirre, 965 F.3d at 1158, Kinnemore must “prove that his arrest warrant was constitutionally infirm,” id. at 1165. To invalidate his arrest warrant, Kinnemore must “establish either that [Detective Cochran] should have known that his application failed to establish probable cause or that [he] intentionally or recklessly made misstatements or omissions necessary to support the warrant.” See id.[iii]
Thus, Kinnemore must first show that a reasonable officer in Detective Cochran’s position should have known that the application (1) failed to establish probable cause or (2) that he intentionally or recklessly made false statements or omitted exculpatory information that would have negated the probable cause.
The court of appeals first noted that
Probable cause . . . is established when the facts and circumstances . . . 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.” Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019)[iv]
The court then examined the Georgia statute under which Kinnemore was charged. The court stated
In Georgia, a person commits aggravated stalking when, “in violation of a . . . temporary protective order, . . . [he] contacts another person . . . without the consent of the other person for the purpose of harassing and intimidating [that] person.” O.C.G.A. § 16-5-91(a).[v]
In Kinnemore’s case, the warrant application established that (1) a protective order prohibited Kinnemore for contacting his wife, (2) he violated the order by sending his wife a photograph through the family iCloud account, (3) this was without her consent, (4) for the purpose of harassing and intimidating her. Under the Georgia statute, prohibited contact includes contact via computer. The court held that upon these facts, the warrant application established probable cause.
The court also noted that, because a neutral and detached Magistrate found probable cause to issue the warrant, Detective Cochran could likewise have a reasonable belief that the warrant application established probable cause. Specifically, the court stated
[T]hat a neutral magistrate . . . issued [the] warrant” is not dispositive of the existence of probable cause, but it is “the clearest indication that [Detective Cochran] acted . . . in objective good faith” and “held a reasonable belief that the warrant [application] was supported by probable cause.” Messerschmidt v. Millender, 565 U.S. 535, 547, 555, 132 S. Ct. 1235, 182 L. Ed. 2d 47 (2012). Both a magistrate judge and a judge of the Superior Court of Paulding County found probable cause to arrest Kinnemore for aggravated assault. See United States v. Leon, 468 U.S. 897, 914, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (giving “great deference” to a judge’s determination that an affidavit establishes probable cause). Like those judges, Detective Cochran could have reasonably thought that his warrant application provided probable cause to arrest Kinnemore.[vi]
Lastly, Kinnemore argued that the detective omitted the fact that when he went to his wife’s residence to retrieve his car and some belongings, he was accompanied by the local police department, which was specifically allowed in his bond conditions. The court found that since the warrant for aggravated stalking was not based upon the fact that he went to the residence, it was irrelevant to the finding of probable cause. The court stated
But “even intentional or reckless omissions will invalidate a warrant only if inclusion of the omitted facts would have prevented a finding of probable cause.” Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir. 1997). As Detective Cochran argued in his motion for summary judgment, Kinnemore’s visit home after being served with the protective order was irrelevant to the existence of probable cause for the criminal warrant. That charge of aggravated stalking was predicated on Kinnemore’s contact with his wife in violation of a court order to harass and intimidate her. Because the omission of facts regarding Kinnemore’s visit was “insignificant and immaterial, . . . [that omission does] not invalidate [Kinnemore’s arrest] warrant.[vii]
Therefore, because a reasonable officer in Detective Cochran’s position could believe that the warrant application supported probable cause, the court of appeals affirmed his grant of summary judgment in this case and also held that he was entitled to qualified immunity.
[i] No. 21-11360 (11th Cir. Decided November 17, 2021 Unpublished)
[ii] Id. at 2-5
[iii] Id. at 8-9 (emphasis added)
[iv] Id. at 9 (emphasis added)
[vi] Id. at 11-12
[vii] Id. at 12 (emphasis added)