Wydrick Phillips v. Jimenez Allen

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3559
W YDRICK P HILLIPS ,
Plaintiff-Appellant,
v.
J IMENEZ A LLEN , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 666—Robert M. Dow, Jr., Judge.
A RGUED N OVEMBER 2, 2011—D ECIDED F EBRUARY 10, 2012
Before E ASTERBROOK , Chief Judge, and P OSNER and
W OOD , Circuit Judges.
E ASTERBROOK , Chief Judge. Ruby Graham cashed some
checks at a currency exchange and with $5,000 in her
purse drove to the public library in Bellwood, Illinois.
She was accompanied by her mother, Elizabeth Graham.
Just as Ruby stepped through the library’s door, her
purse was grabbed from behind. Ruby turned and strug-
gled with the snatcher. Elizabeth saw what was hap-

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2 No. 10-3559
pening, yelled “no, no, not my baby,” and ran to give
aid. The robber shot Elizabeth in the chest, then shot
Ruby in the head, ran to the car, grabbed Elizabeth’s
purse, and fled. Elizabeth was seriously injured, but
Ruby suffered only a graze to her temple. Both were
taken to the hospital. Ruby was released after receiving
a few staples.
Ruby described the attacker to two police offi-
cers—one at the library, another at the hospital. She
did not tell either officer that she had known her assail-
ant. The day after the robbery, officer Jimenez Allen
went to Elizabeth’s hospital room to question her. Allen
found Ruby, along with James Bufkin, visiting Elizabeth.
Bufkin told Allen that he had heard a rumor that
Wydrick Phillips, who lived in the Grahams’ neighbor-
hood, had been staking out currency exchanges and
robbing people who cashed tax-refund checks (as Ruby
had done). Later that day Ruby examined photographs
at the police station to see whether she could identify
the robber. All photographs had been chosen to meet
the descriptions Ruby gave. She spent about 15 minutes
examining five or six sheets of photographs, each con-
taining six pictures (but no names). She concentrated on
the fourth sheet. She told Allen that she knew the
sixth person on the sheet but did not think him the robber.
Ruby also told Allen that the first photo on this sheet
was similar to the robber—but eventually she selected
the fifth person on this page and told Allen that she
was “sure” that he was the culprit. Ruby had selected
a photograph of Wydrick Phillips.

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No. 10-3559 3
Police arrested Phillips, who was charged with robbery
and attempted murder. He was acquitted when no evi-
dence corroborated the testimony of Ruby and Elizabeth
(both of whom picked Phillips from a lineup and
identified him at trial). A search of Phillips’s home did
not turn up any proceeds or weapons; a test of the
clothing that he had been wearing on the day of the
robbery was negative for gunpowder residue; and the
defense introduced a manifest of FedEx deliveries
showing (if it was accurate) that Phillips, a courier for that
company, could not have been at the Bellwood library
when the robbery and shootings occurred. Phillips then
filed this suit under 42 U.S.C. §1983 against the Village
of Bellwood and seven police officers who had par-
ticipated in the investigation and prosecution, con-
tending that he had been arrested without probable
cause. The district court granted summary judgment to
the defendants on this federal claim and relinquished
supplemental jurisdiction of all state-law claims. 743
F. Supp. 2d 931 (N.D. Ill. 2010). The judge concluded
that Ruby’s selection of Phillips’s picture established
probable cause for his arrest.
Phillips’s principal argument is that Allen spoiled
the identification procedure by speaking with Bufkin
where Ruby could overhear, which primed her to
finger Phillips. This made her identification unreliable,
Phillips insists. He advances several other argu-
ments—such as a contention that the police should
have done more to follow up other leads before arresting
him. (Police received tips implicating three other per-
sons. They conducted a second photo array including

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4 No. 10-3559
a picture of one of these three; Ruby did not select it.
They did not show her pictures of the other two.) Phillips
also contends that police should not have arrested
him before his mother had a chance to show them a
copy of the FedEx manifest that was produced as an
alibi at trial. These are weak arguments. Police need not
run down all leads before making an arrest—especially
not when a crime is violent and leaving the perpetrator
at large may endanger other persons. Nor need police
wait for alibis, which even when presented they need
not believe. A delivery manifest could be fabricated, or
the times and locations of deliveries could be altered
before the document is shown to police. See Hernandez v.
Sheahan, 455 F.3d 772 (7th Cir. 2006) (presenting prison
officials with a document supposedly demonstrating
innocence does not require the prisoner’s immediate
release). Probable cause is established by a reasonable
belief that a person committed a crime. See Illinois v.
Gates, 462 U.S. 213 (1983). Police are entitled to leave to
the criminal process the full examination of potential
defenses. See, e.g., Hebron v. Touhy, 18 F.3d 421 (7th Cir.
1994).
The only subject that requires extended discussion
is Phillips’s contention that Ruby’s selection of his
photo was the result of an unreliable process. Identifica-
tion by a single eyewitness who lacks an apparent
grudge against the accused person supplies probable
cause for arrest. See, e.g., Gramenos v. Jewel Companies,
Inc., 797 F.2d 432 (7th Cir. 1986); Askew v. Chicago, 440
F.3d 894 (7th Cir. 2006). But Phillips maintains that an
identification should not count if it was the result of

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No. 10-3559 5
unduly suggestive procedures. He relies on decisions
such as Neal v. Biggers, 409 U.S. 188 (1972), which holds
that a person’s selection of a suspect from a photo
spread or lineup cannot be used as evidence at trial if
the selection was the result of unduly suggestive proce-
dures that create an excessive likelihood of irreparable
misidentification. See also Simmons v. United States, 390
U.S. 377, 384 (1968).
Biggers and similar decisions don’t support Phillips’s
position directly. They concern the admissibility of evi-
dence at criminal trials, not claims for damages against
arresting officers. Similarly, decisions such as United
States v. Johnson, 859 F.2d 1289, 1294 (7th Cir. 1988), and
United States ex rel. Hudson v. Brierton, 699 F.2d 917, 923–24
(7th Cir. 1983), whose significance the parties debate,
concern the admissibility of evidence at a criminal trial.
But Phillips contends that the Biggers approach should
be extended from trials to arrests, and from a rule
of evidence to a rule of damages. We think that the pro-
posed extension would be improvident—though with
an important proviso that we discuss later.
The Supreme Court stressed in Gates that evidence
need not be admissible at trial in order to support a
finding of probable cause. A conclusion that there is
probable cause for arrest (or indictment) just gets the
criminal process started. Many later steps shape what
evidence can be used at a trial and how much is
required for conviction. Doctrines, such as that of
Biggers, that are designed to reduce the chance of
erroneous conviction do not have any greater function

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6 No. 10-3559
at the arrest stage than do doctrines such as the require-
ment of proof beyond a reasonable doubt, the de-
fendant’s entitlement to confront his accusers, or the
hearsay rule. Probable cause is established, and arrests
are made, without an adversarial presentation. Applica-
tion of the Biggers framework is possible, however,
only after evidence has been gathered and an adversarial
hearing held.
Phillips wants such a proceeding held now and the
results used to determine the validity of the arrest. But
hindsight is not an appropriate basis for awarding dam-
ages against police. The validity of an arrest depends
on what is known at the moment of the arrest, not on
evidence that may be developed years later. Phillips
believes that he can get damages without the benefit of
hindsight. He tells us that officer Allen must have
known that he was steering Ruby to pick Phillips and
that a reasonable officer must have known that priming
a witness in this way would produce an inaccurate selec-
tion. The first part of this argument is cut short by the
rule that the officer’s motives do not count; probable
cause is objective. See, e.g., Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2080–83 (2011); Devenpeck v. Alford, 543 U.S. 146, 153
(2004); Whren v. United States, 517 U.S. 806 (1996). And
the second part of Phillips’s argument fares no better.
Whether mentioning a name and a rumor in a victim’s
presence influences a later identification is a difficult
question of psychology, not something about which
police officers (and lawyers) know the right answer
instinctively. Bufkin’s statements may have meant

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No. 10-3559 7
nothing to Ruby. She says that she knew neither the
name nor Phillips’s appearance; he contends, to the
contrary, that she must have known his name and face
because the two lived in the same neighborhood. In
court, on a motion for summary judgment, we must
assume that Phillips is right about this; but in a
hospital room years ago, Allen was not bound to know
that this was so. (Allen does not concede it even today,
nor has Ruby ever admitted knowing plaintiff’s name
and appearance before she selected his photograph.)
Suppose Ruby is lying and did know Wydrick Phillips
by name and appearance; would it follow that her knowl-
edge of a tip that he had been robbing people would
lead her to identify him as her assailant? Phillips’s
lawyer treats an affirmative answer as obvious, but
nothing is obvious about the psychology of eyewitness
identification. Indeed, one point well established in the
psychology literature is that most people’s intuitions on
the subject of identification are wrong. See Christopher
Chabris & Daniel Simons, The Invisible Gorilla: How Our
Intuitions Deceive Us (2010). We held in United States v.
Williams, 522 F.3d 809 (7th Cir. 2008), that someone who
contends that a particular kind of procedure led to an
unreliable identification needs evidence—if not from an
expert’s affidavit, then from published work such as
Elizabeth F. Loftus, et al., Eyewitness Testimony: Civil and
Criminal (4th ed. 2007), the standard text in this field.
Phillips has not referred us to such evidence; he has only
a lawyer’s confidence that what Allen did would have
produced a worthless identification. Lawyers’ talk is no
substitute for data.

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8 No. 10-3559
Indeed, the approach of Biggers itself has been ques-
tioned by social scientists. The American Psychological
Association filed a brief as amicus curiae in Perry v. New
Hampshire, No. 10-8974 (U.S. Jan. 11, 2012), in which
the Court declined to extend Biggers to acts by private
parties that may influence eyewitnesses. The Associa-
tion told the Justices:
In Biggers and Manson [v. Brathwaite, 432 U.S. 98
(1977)], this Court enumerated five factors rele-
vant to the probable accuracy of an eyewitness
identification: “the opportunity of the witness to
view the criminal at the time of the crime, the
witness’ degree of attention, the accuracy of his
prior description of the criminal, the level of
certainty demonstrated at the confrontation,
and the time between the crime and the confron-
tation.” Manson, 432 U.S. at 114 (citing Biggers, 409
U.S. at 199-200). As shown by the discussion in
the text, most of these factors are indeed
relevant to probable accuracy—with the notable
exception of witness certainty, see infra n.14.
But given that notable exception, and given
the plethora of other accuracy-related factors that
researchers have identified since Biggers and
Manson, APA urges the Court, in an appropriate
case, to revisit the Manson framework so as to
bring it in line with current scientific knowledge.
APA Brief at 13 n.8. Footnote 14, to which note 8 refers,
adds:

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No. 10-3559 9
Jurors’ evident belief that eyewitness confidence
correlates with accurate identifications was once
shared by many in the judiciary. Indeed, in
Biggers this Court stated, albeit without citing
any scientific authorities, that confidence is an
indication of accuracy. See 409 U.S. at 199-200.
Subsequent research, however, has called this
notion into very serious question. As one report
concluded, “[t]he outcomes of empirical studies,
reviews, and meta-analyses have converged
on the conclusion that the confidence-accuracy
relationship for eyewitness identification is
weak, with average confidence-accuracy correla-
tions generally estimated between little more
than 0 and .29.” Brewer et al., The Confidence-Accu-
racy Relationship in Eyewitness Identification, 8 J.
Experimental Psychol. Applied 44, 44-45 (2002).
Even these various correlation figures are likely
overestimates, moreover, because the confidence
of eyewitnesses in actual cases, unlike in con-
trolled experiments, may be infected by positive
feedback received in the investigative process (for
example, an officer stating during a photo array
or line-up, “good, you identified the suspect”).
[Citations omitted.]
The Court bypassed this topic in Perry, leaving to the
future any inquiry into the Biggers framework. Perry
holds that in the main the validity of an eyewitness
identification is for the jury—which implies that it is not
tortious to obtain that identification in order to have
evidence to present at trial. Neither the Supreme Court

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10 No. 10-3559
nor this court has held that, as a matter of law, men-
tioning a suspect’s name spoils an identification.
Without a solid basis in the social science of eyewitness
identification, a court could not appropriately create
such a rule. Phillips has not offered any basis, solid
or otherwise, for us to do so.
We mentioned earlier the need for a proviso. It is this.
Suppose a particular technique that officers may use
to trick a person into making an unreliable identifica-
tion has already been forbidden by an authoritative
judicial decision (that is, by the Supreme Court or the
court of appeals with territorial jurisdiction) and the
officer uses it anyway. An officer who employs the for-
bidden technique in order to manufacture an identifica-
tion can’t complain when a court provides a remedy.
Several courts of appeals have concluded that, when a
state actor deliberately uses a forbidden technique to
generate a false identification, an award of damages is
permissible under 42 U.S.C. §1983. See, e.g., Good v. Curtis,
601 F.3d 393, 398–99 (5th Cir. 2010) (intentionally manipu-
lating a lineup); Brodnicki v. Omaha, 75 F.3d 1261, 1265–66
(8th Cir. 1996) (dictum; officer held not liable). This
approach does not assist Phillips, however, because no
judicial decision has held that mentioning a suspect’s
name in the hearing of a potential witness is improper.
What Allen did was not remotely similar to showing
a witness just one photo and asking her to “confirm”
that the photo depicts the culprit.
And if, despite the lack of scientific support, we were
to create the sort of rule that Phillips proposes, it could

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No. 10-3559 11
not do him any good. A rule of law devised after the
events does not support an award of damages; officer
Allen would be entitled to qualified immunity. See al-
Kidd, 131 S. Ct. at 2083–85. It was not “clearly estab-
lished” in February 2005, when Allen arrived in
Elizabeth’s hospital room, that mentioning a suspect’s
name in the presence of an eyewitness, and then
showing that witness a photo spread containing the sus-
pect’s picture, violates the Constitution.
If Allen manipulated Ruby into selecting Phillips, he
may have a remedy under state law. The district court
dismissed all state-law claims without prejudice. But
Phillips does not have a damages remedy for wrongful
arrest under §1983 and the fourth amendment. None of
the parties’ other arguments requires discussion.
A FFIRMED
2-10-12

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