Raddy N. Toribio v. Bernard Spece

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-3029
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RADDY N. TORIBIO,
Appellant
v.
BERNARD SPECE; MICHAEL SADUSKY;
BERNARD WALASAVAGE
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 3-10-cv-02441)
District Judge: Honorable Malachy E. Mannion
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Submitted Under Third Circuit LAR 34.1(a)
January 17, 2014
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Before: RENDELL, ROTH and BARRY, Circuit Judges
(Filed: February 21, 2014)
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OPINION
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BARRY, Circuit Judge
Raddy Toribio was arrested for a string of bank robberies he did not commit, and
was released three days later. He filed an action pursuant to 42 U.S.C. § 1983 alleging
false arrest, false imprisonment and malicious prosecution against three members of the

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Pennsylvania State Police. The District Court granted defendants’ motion for summary
judgment, finding that they had probable cause for the arrest, promptly effected Toribio’s
release upon discovering exculpatory evidence, did not act with malice, and were in any
event entitled to qualified immunity. Toribio appealed. We will affirm.
I. Background
On August 6, 2010, a man robbed the Susquehanna Bank in Schuylkill County,
Pennsylvania, the latest in a series of bank robberies in central Pennsylvania. Three bank
employees offered descriptions of the robber. Teller Deborah Steffee, who, in response
to the robber’s note, handed him money, said he was six foot to six foot three inches tall
with a goatee; another teller, Tara Pandher, who “had a glimpse of” the robber but “did
not see his face,” described his apparel and said he had a “fine lined beard” (181a); and
branch manager Christy Rebehn, who saw the robber dash through the parking lot from
her office window, described him as a “darker skinned not black male about” six foot tall
(168a).
Investigators publicly disseminated a grainy, low quality photo taken by the
bank’s surveillance camera. The image showed the robber standing with his arms
crossed leaning against a wall. Although it provided a three-quarters view of the robber’s
face, the facial features appeared somewhat blurred, and a black baseball cap obscured
the shape of his head and forehead.
Nonetheless, the photo immediately produced a tip. Cassandra Shoaff, Toribio’s
ex-girlfriend and the mother of his five-year old son, told a friend in the Allentown Police

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Department that she believed Toribio was the man in the photo. That information made
its way to Corporal Michael Sadusky, who was heading the investigation. When Sadusky
called Shoaff, she told him that “her son saw the photo of the defendant on the internet”
and said “‘that’s daddy.’” (132a). Sadusky gave hard copies of the photo and other
images captured by the surveillance camera to the Allentown Police Department, which,
in turn, forwarded them to Shoaff. Shoaff claimed to be “95% sure that the male in the
pictures” was Toribio, but could not “be 100% certain . . . due to the quality of the
pictures.” Id.
To corroborate Shoaff’s identification, Trooper Bernard Walasavage arranged a
photo lineup using an array of head shots of Toribio and seven other Hispanic men.
Walasavage asked Steffee, Pandher and Rebehn to participate, even though Pandher and
Rebehn had already told investigators that they had not gotten a good look at the robber.
Before conducting the lineup, Walasavage showed each of the women photos of
the robber from surveillance footage at Susquehanna Bank and several previously
targeted banks. At the lineup itself, Pandher, who had not seen the robber’s face, claimed
to be certain that the head shot of Toribio depicted the robber. Rebehn stated that she
“only saw [the robber] from the side and with his head down” and declined to identify
anyone. (132a). Steffee, however, the teller to whom the robber passed the note,
confidently identified Toribio.
Satisfied that they had the right man, Trooper Bernard Spece applied for an arrest
warrant. The supporting affidavit described Shoaff as a “source who wished to remain

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anonymous.” (188a). It made no mention of her relationship to Toribio. With respect to
the photo lineup, the affidavit stated that both Pandher and Steffee positively identified
Toribio, but made no mention of Pandher’s statement that she never saw the robber’s
face, nor of Walasavage’s peculiar procedure of asking the participants to look at
surveillance photos before proceeding to the lineup.
A warrant issued, and Toribio was arrested on August 10, 2010. At five foot nine,
Toribio was several inches shorter than certain witnesses had described. Concerned with
the discrepancy, Sadusky called Steffee and Rebehn, “advised both that [he] had located
the individual that was identified in the photo lineup,” and asked them to confirm the
identification by viewing him through a one-way glass window at the police station.
(133a). Upon seeing Toribio, Steffee “hugged [Sadusky] in elation” and “related that she
had no reservations that [Toribio] was the man who robbed the bank.” Id. Rebehn, too,
said she was sure Toribio was the robber, despite having previously declined to identify
him in the photo lineup.
Two days later, another bank was robbed in Lancaster County. Sadusky learned
of the robbery the next day, and Toribio was released. All charges were dropped two
business days after the Lancaster robbery occurred.
Toribio filed an action under § 1983 against Spece, and later a separate action
against Sadusky and Walasavage. The two cases were consolidated, and Toribio filed
amended complaints alleging one count of false arrest, one count of false imprisonment,
and one count of malicious prosecution. Defendants’ motion for summary judgment was

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granted on June 4, 2012, and this timely appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343, and we
have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of an order
granting summary judgment. See Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009).
“A court may grant summary judgment only when the record shows that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law.” Id. (internal quotation marks omitted). “[T]he evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn in his favor,” but
the “mere existence of some evidence in support of the non-movant is insufficient to deny
a motion for summary judgment; enough evidence must exist to enable a jury to
reasonably find for the nonmovant on the issue.” Id. (internal quotation marks omitted).
III. Analysis
A. False Arrest
“[A] plaintiff may succeed in a § 1983 action for false arrest made pursuant to a
warrant if the plaintiff shows, by a preponderance of the evidence: (1) that the police
officer knowingly and deliberately, or with a reckless disregard for the truth, made false
statements or omissions that create a falsehood in applying for a warrant; and (2) that
such statements or omissions are material, or necessary, to the finding of probable cause.”
Wilson v. Russo, 212 F.3d 781, 787 (3d Cir. 2000). “To determine the materiality of the
misstatements and omissions, we excise the offending inaccuracies and insert the facts

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recklessly omitted, and then determine whether or not the ‘corrected’ warrant affidavit
would establish probable cause.” Id. at 789 (internal quotation marks and citation
omitted).
“Probable cause exists if there is a ‘fair probability’ that the person committed the
crime at issue.” Id. “[T]he evidentiary standard for probable cause is significantly lower
than the standard which is required for conviction” and “does not depend on whether the
suspect actually committed any crime.” Wright v. City of Philadelphia, 409 F.3d 595,
602 (3d Cir. 2005). “[S]ufficient probability, not certainty, is the touchstone of
reasonableness under the Fourth Amendment.” Hill v. California, 401 U.S. 797, 804, 91
S. Ct. 1106, 1111 (1971).
Toribio identifies four misleading statements that he believes created a material
falsehood in the application for his arrest warrant: (1) it described Shoaff as an
“anonymous source” when in fact she was known to Sadusky as Toribio’s ex-girlfriend
and the mother of his child; (2) it did not mention that Shoaff expressed some doubt in
her identification of Toribio because of the low quality of the surveillance photos; (3) it
did not describe flaws in the lineup procedure; and (4) it did not mention that Toribio was
three to six inches shorter than the robber had been described.1
Had the affidavit been as forthcoming as Toribio claims it should have been, the
facts set forth would have nonetheless established probable cause. For one thing, even if
there was some reason to question Shoaff’s motives, a description of her close
1 It is unclear from the record whether any of the officers knew Toribio’s height before
the warrant was issued.

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relationship with Toribio would have indicated that she was better able than most people
to recognize him from surveillance photos. To be sure, the images were of poor quality
and lacking in detail, but Shoaff was still “95%” certain that it was him. And even if we
discount Pandher’s belated identification of Toribio as having been the result of
Walasavage’s display of surveillance photos prior to the lineup, Steffee’s identification
remained of significant value given that she engaged in a direct and extended interaction
with the robber at her teller’s window just half a day earlier.
Thus, a more exhaustive warrant application would have described a near-certain
identification, based on surveillance photos, from a person who knew Toribio very well,
and a certain identification from the photo array by an eyewitness who got an excellent,
and recent, look at him. The only evidence going the other way was some discrepancy in
height. The evidence was more than sufficient to establish a “fair probability that
[Toribio] committed the crime at issue,” a standard which, of course, leaves ample room
for a mistaken identification. Wilson, 212 F.3d at 789 (internal quotation marks omitted).
B. False Imprisonment
Toribio argues that “once Corporal Sadusky saw [Toribio],” he should have
“realized that they had the wrong man” and released him, rather than conducting a one-
on-one show-up to confirm the identification. Appellant’s Br. at 33. That claim appears
to be based on the discrepancy in height between Toribio and the witness descriptions of
the robber that only became apparent to Sadusky upon viewing Toribio in custody.
The “existence and scope of an officer’s duty to seek to release a suspect” after a

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lawful arrest is unsettled in this Court. Wilson, 212 F.3d at 792. In the First Circuit, no
duty exists, because “once probable cause has been established, a warrant issued, and an
arrest perfected, the ordinary course is for the prosecutor to decide whether to go forward,
and if he elects to proceed, for the judicial branch to make the final ascertainment of guilt
or innocence—not for the police to take matters into their own hands.” Brady v. Dill,
187 F.3d 104, 112 (1st Cir. 1999). In the Fifth Circuit, officers are required to disclose
“undeniably credible and patently exculpatory evidence to the prosecuting attorney’s
office.” Sanders v. English, 950 F.2d 1152, 1162 (5th Cir. 1992).
We need not settle the unsettled issue. When Sadusky first became aware that
Toribio was shorter than the descriptions of the robber with which he had been provided,
Toribio had been arrested on a warrant, was in the custody of Pennsylvania State Police,
and there were positive identifications by Steffee and Shoaff. Any difference in height
was surely not “patently exculpatory.”
Toribio also argues that “there was no . . . rush to get him out of jail and out from
under the criminal law procedure” after the defendants learned about the Lancaster
robbery. Appellant’s Br. at 33. When the defendants learned of that robbery, however,
Toribio was no longer in their custody but had been remanded to the Schuylkill County
Prison. Thus, the only possible obligation of the defendants in that situation would have
been to promptly disclose the information to someone who could apply for Toribio’s
release. They did just that.

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C. Malicious Prosecution
To succeed on a claim for malicious prosecution, a plaintiff must prove that the
proceeding against him was “was initiated without probable cause.” DiBella v. Borough
of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005). As discussed above, there was ample
probable cause for Toribio’s arrest.
IV. Conclusion
The order of the District Court will be affirmed. 2
2 Given this disposition, we need not reach the issue of whether defendants were entitled
to qualified immunity.

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