Stansbury v. Wertman

12-713-cv
Stansbury v. Wertman
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
4
August Term, 2012 5
6
(Argued: March 11, 2013 Decided: June 26, 2013) 7
8
Docket No. 12-713-cv 9
10
11
LINDA STANSBURY, 12
13
Plaintiff-Appellee, 14
15
-v.- 16
17
CHAD WERTMAN, 18
19
Defendant-Appellant, 20
21
JOSEPH LUTZ AND JOHN DOES 1 THROUGH 10, 22
23
Defendants. *
24
25
26
27
Before: 28
W ALKER , S ACK , A ND W ESLEY , Circuit Judges. 29
30
31
32
33
34
Plaintiff-Appellee Linda Stansbury initiated this action in 35
the United States District Court for the Southern District 36
of New York (Holwell, Judge) pursuant to 42 U.S.C. § 1983 37
alleging false arrest and malicious prosecution. Defendant- 38
* The Clerk of the Court is directed to amend the
caption in the case to conform with the above.
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Appellant Chad Wertman moved for summary judgment, asserting 1
that (1) there was probable cause for the arrest and 2
prosecution, or, in the alternative that (2) he was entitled 3
to qualified immunity based on the existence of arguable 4
probable cause. Defendant timely appeals from the district 5
court’s January 24, 2012 opinion and order denying 6
Defendant’s motion for summary judgment. We find that the 7
district court erred by analyzing the evidence seriatim and 8
in isolation. In its totality, the evidence provided 9
Defendant with probable cause to arrest and prosecute 10
Plaintiff; we therefore hold that Defendant is entitled to 11
judgment as a matter of law and REVERSE the judgment of the 12
district court and REMAND with instruction to enter judgment 13
in favor of Wertman. 14
15
REVERSED and REMANDED with instruction to enter 16
judgment in favor of Wertman. 17
18
19
20
21
SUDARSANA SRINIVASAN, Assistant Solicitor General 22
(Barbara D. Underwood, Solicitor General, 23
Cecelia C. Chang, Deputy Solicitor General, on 24
the brief), for Eric T. Schneiderman, Attorney 25
General of the State of New York, New York, 26
NY, for Appellant Chad Wertman. 27
28
RANDOLPH M. McLAUGHLIN (Jeffrey M. Norton, on the 29
brief), Newman Ferrara LLP, New York, NY, for 30
Appellee Linda Stansbury. 31
32
33
34
W ESLEY , Circuit Judge: 35
36
Chad Wertman (“Wertman”) appeals from the January 24, 37
2012 opinion and order of the United States District Court 38
for the Southern District of New York (Holwell, J.) denying 39
Wertman’s motion for summary judgment. Linda Stansbury 40
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(“Stansbury”) brought this action pursuant to 42 U.S.C. 1
§ 1983 alleging false arrest and malicious prosecution. 2
Wertman moved for summary judgment, asserting that (1) there 3
was probable cause for the arrest and prosecution, or, in 4
the alternative that (2) he was entitled to qualified 5
immunity based on the existence of arguable probable cause. 6
The district court analyzed each piece of evidence in 7
the case seriatim and in isolation and concluded that there 8
was a genuine issue of material fact as to whether Wertman 9
had probable cause or arguable probable cause to arrest 10
Stansbury. This was error. Analyzing the evidence in its 11
totality, we hold that no reasonable trier of fact could 12
conclude that Wertman did not have probable cause to arrest 13
and to prosecute Stansbury. We therefore reverse the 14
district court’s opinion and remand the case with 15
instructions to enter judgment for Wertman. 16
Background 17
At 8:30 p.m. on April 4, 2006, a woman shoplifted 18
approximately $800 of goods from a Stop & Shop supermarket 19
in Somers, New York. Mary Sue Cirrincione (“Cirrincione”), 20
the store detective who was trained “to focus on distinctive 21
facial characteristics,” observed the crime on the store’s 22
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three-inch by five-inch monitor. Cirrincione Decl.; see 1
also Stansbury v. Wertman, No. 09-cv-04638-RJH, 2012 WL 2
183849 at *1 (S.D.N.Y. Jan. 24, 2012). Cirrincione alerted 3
co-worker Mark John (“John”), who physically observed the 4
perpetrator and watched her open tightly-folded, crisp, new 5
Old Navy bags and place items from the shelves into the bags 6
and then in her shopping cart. Id. When she tried to 7
leave, John attempted to block the perpetrator’s exit and 8
asked to see her receipt; she ran around him, exited the 9
building, and jumped into a white van. Id. John noted the 10
van’s license plate number as it drove away. Id. 11
Cirrincione and John reported the incident to the 12
police, and New York State Trooper Chad Wertman arrived to 13
investigate. Wertman recovered a bus receipt from an Old 14
Navy bag the perpetrator had left behind. He watched the 15
videotape of the theft and took the tape as evidence. 16
Cirrincione and John both described the perpetrator as a 17
“black female wearing blue jeans and a maroon windbreaker;” 18
John added that she was “about 5'5".” Id. The bus ticket 19
and license plate number did not yield any additional leads. 20
Noting that the perpetrator’s Old Navy bags were in 21
mint condition, Wertman traveled to one of the two nearby 22
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Old Navy stores. The Old Navy manager reported that a 1
middle-aged black woman had attempted to buy some clothing 2
at the store at 8:08 p.m. that evening, but that her credit 3
card was declined. The manager reported that new bags, 4
typically stored in the rear of the store, were discovered 5
strewn on the ground near the door around the same time. 6
Id. at *2. Wertman traced the credit card receipt to a card 7
belonging to Nicole Stansbury (“Nicole”), Linda Stansbury’s 8
daughter. After repeated attempts, Wertman was able to 9
contact Nicole by telephone; she alleged that she had been 10
in Old Navy on April 4 before visiting an A&P supermarket 11
and returning to her mother’s house. 12
Wertman went to Stansbury’s house on May 22 to 13
interview Nicole. Wertman asserts that on his arrival, “he 14
recognized Linda Stansbury as the perpetrator he had seen on 15
the videotape.” Id. He interviewed both women, but his 16
“notes of the interview reflect that Linda was nervous, that 17
she would not answer his questions directly, and that Nicole 18
answered many of the questions he asked of her mother.” Id. 19
After the interview, Wertman reviewed Stansbury’s 20
criminal history and discovered an arrest for grand larceny. 21
He then obtained a DMV photograph of Stansbury and asked 22
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another trooper to prepare a photo array. Before the array 1
was complete, Wertman and two senior officers reviewed the 2
videotape, compared it to the DMV photograph and confirmed 3
their collective belief that Stansbury was the perpetrator. 4
Wertman scheduled a follow-up interview with Linda and 5
Nicole Stansbury at the police barracks in Somers. He 6
planned to have Cirrincione and John come to the station and 7
view Linda Stansbury to see if they could identify her as 8
the shoplifter; the Stansburys never arrived. Id. at *3. 9
Because the photo array was not yet ready, Wertman showed 10
Stansbury’s DMV photograph to Cirrincione and John without 11
any control photographs, in violation of the New York State 12
Police Field Manual (“Field Manual”). 1 Both Cirrincione and 13
John identified Stansbury as the perpetrator and signed a 14
sworn statement under penalty of perjury to that effect. 15
Cirrincione confirmed “without any doubt or reservation” 16
that Stansbury was the perpetrator, and John “was positively 17
without a doubt able to identify” her as the thief. After 18
Wertman spoke with her attorney, Stansbury turned herself in 19
the next day; she was listed as 5'9" tall upon arrest. 20
1 The Field Manual instructs officers to “NEVER show a
single photo of a suspect to a witness.” It also instructs
officers to separate witnesses when showing them photographs of
the suspect and to consult the district attorney’s office before
conducting a photo array with fewer than six photographs included
thereon.
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Stansbury was tried for petit larceny in Somers Town 1
Court. After a two-day bench trial including testimony by 2
Cirrincione and John, Stansbury was acquitted. Two years 3
later she commenced this suit, alleging false arrest and 4
malicious prosecution under 42 U.S.C. § 1983. Wertman moved 5
for summary judgment; finding “genuine issues of material 6
fact with respect to probable cause,” the district court 7
denied his motion in January 2012. Id. at *9. Wertman 8
timely filed this appeal. 9
10
Discussion 11
I. Jurisdiction and Standard of Review 12
This Court has jurisdiction to hear interlocutory 13
appeals of denials of motions for summary judgment where the 14
motion is predicated in whole or in part on assertions of 15
qualified immunity. See, e.g., Amore v. Novarro, 624 F.3d 16
522, 529 (2d Cir. 2010). Wertman alleges both that he is 17
entitled to qualified immunity based on the existence of 18
arguable probable cause and that he is entitled to judgment 19
as a matter of law based on the existence of probable cause. 20
We may exercise pendent jurisdiction to decide whether 21
Stansbury “has alleged a constitutional violation at all” 22
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before deciding whether Wertman is shielded by qualified 1
immunity. Finigan v. Marshall, 574 F.3d 57, 61 (2d Cir. 2
2009). Although it is no longer required, see Pearson v. 3
Callahan, 555 U.S. 223, 236 (2009), the probable cause 4
inquiry may precede any inquiry into qualified immunity 5
because there cannot be an allegation of a constitutional 6
violation where probable cause justifies an arrest and 7
prosecution. Panetta v. Crowley, 460 F.3d 388, 394-95 (2d 8
Cir. 2006). In this case, it is “beneficial,” Pearson, 555 9
U.S. at 236, to first address whether Wertman had probable 10
cause, because it best serves the interests of judicial 11
economy, see Escalera v. Lunn, 361 F.3d 737, 749 (2d Cir. 12
2004). Thus, because the probable cause inquiry is 13
inextricably intertwined with the immunity question, we will 14
exercise our “discretion[] [to] consider otherwise 15
nonappealable issues” based on our review of the question of 16
qualified immunity. San Filippo v. U.S. Trust Co. Of N.Y., 17
Inc., 737 F.2d 246, 255 (2d Cir. 1984); see also Golino v. 18
City of New Haven, 950 F.2d 864, 868-69 (2d Cir. 1991). 19
The standard of review here is well-established. 2 We 20
2 We review denials of summary judgment de novo, construing
“all evidence in the light most favorable to the non-moving
party, drawing all inferences and resolving all ambiguities in
[her] favor.” Amore v. Novarro, 624 F.3d 522, 529 (2d Cir.
2010).
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conclude that Wertman had both probable cause and arguable 1
probable cause to arrest and prosecute Stansbury; the 2
district erred in denying Wertman’s motion for summary 3
judgment as to the false arrest and malicious prosecution 4
claims. 5
6
II. False Arrest 7
“‘[P]robable cause is an absolute defense to a false 8
arrest claim.’” Torraco v. Port Auth. of N.Y. and N.J., 615 9
F.3d 129, 139 (2d Cir. 2010) (quoting Jaegly v. Couch, 439 10
F.3d 149, 152 (2d Cir. 2006)). “An officer has probable 11
cause to arrest when he or she has knowledge or reasonably 12
trustworthy information of facts and circumstances that are 13
sufficient to warrant a person of reasonable caution in the 14
belief that the person to be arrested has committed . . . a 15
crime.” Jaegly, 439 F.3d at 152. A court “must consider 16
[only] those facts available to the officer at the time of 17
the arrest and immediately before it.” Panetta, 460 F.3d at 18
395 (internal quotation marks and emphasis omitted). A 19
court examines each piece of evidence and considers its 20
probative value, and then “look[s] to the totality of the 21
circumstances” to evaluate whether there was probable cause 22
to arrest and prosecute the plaintiff. Id. (quotation marks 23
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omitted). If probable cause existed, it presents a total 1
defense to Stansbury’s actions for false arrest and 2
malicious prosecution; Wertman would be entitled to judgment 3
as a matter of law. Savino v. City of New York, 331 F.3d 4
63, 75 (2d Cir. 2003). 3
5
A. Available Evidence as to Probable Cause 4
6
The district court analyzed five separate pieces of 7
evidence before concluding that Wertman was not entitled to 8
a probable cause determination: 9
(1) Cirrincione’s and John’s eyewitness accounts of 10
the shoplifting; (2) the store surveillance tape; 11
(3) [Wertman’s] identification of Stansbury as the 12
perpetrator on the surveillance tape; (4) [other 13
officers’] opinion[s] that Stansbury’s DMV picture 14
matched the perpetrator depicted on the 15
surveillance tape; and (5) Cirrincione’s and John’s 16
photo identification. 17
18
Stansbury, 2012 WL 183849, at *4. The record also includes 19
uncontested evidence that the district court chose not to 20
3 In analyzing arguable probable cause for Wertman’s
qualified immunity defense, we examine the same evidence under
the same circumstances and evaluate “whether it was objectively
reasonable for the officer to conclude that probable cause
existed.” Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir.
2007). If an officer had probable cause, he or she also had
arguable probable cause and is protected by qualified immunity.
4 The evidence in this section is listed in the district
court’s opinion and is not meaningfully contested by the parties.
Insofar as Stansbury claims that some of the documentation in the
record is invalid or does not exist, such assertions do not
constitute “a ‘genuine’ dispute as to those facts.” Scott v.
Harris, 550 U.S. 372, 380 (2007).
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analyze: the shoplifter’s use and possession of pristine 1
Old Navy bags; Wertman’s observations of Stansbury’s 2
behavior during his interview; his knowledge of Stansbury’s 3
previous larceny arrest; and similarities between 4
Stansbury’s handbag and the perpetrator’s handbag. 5
The district court began its discussion by analyzing 6
the evidence related to the videotape – including Wertman’s 7
identification of Stansbury in person, his colleagues’ 8
corroborating identifications of Stansbury based on her DMV 9
photograph, and the videotape itself. The district court 10
noted that the evidence was probative, but not sufficient, 11
finding that nothing in it was so persuasive “that a jury 12
would be unreasonable in concluding that the videotape was 13
not ‘sufficient to warrant a person of reasonable caution’” 14
in concluding that Stansbury was the perpetrator. Id. 15
(quoting Jaegly, 439 F.3d at 152). We do not disagree with 16
the court here, but that does not end the inquiry. The 17
district court noted that “[t]here are several instances on 18
the videotape where the perpetrator’s face appears with some 19
definition,” though the perpetrator’s face did not appear to 20
perfectly match Stansbury’s DMV photo. Id. The visibility 21
of the perpetrator on the tape makes Wertman’s 22
identification probative and allows the other officers’ 23
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identifications based on the tape to contribute meaningfully 1
to Wertman’s probable cause to arrest Stansbury. 2
After disposing of the videotape, the court proceeded 3
to analyze the identifications made by Cirrincione and John 4
at the police barracks. As an initial matter, the district 5
court rightly condemned the use of a one-photograph array to 6
confirm identity. Id. at *5 (decrying the absence of 7
indicia of reliability spelled out in Neil v. Biggers, 409 8
U.S. 188, 198 (1972)). Showing suspects “singly to persons 9
for the purpose of identification . . . has been widely 10
condemned,” even when done in person. Stovall v. Denno, 388 11
U.S. 293, 302 (1967), overruled on other grounds by Griffith 12
v. Kentucky, 479 U.S. 314 (1987). The use of a single 13
photograph of the suspect is not more reliable. 14
However, “absent circumstances that raise doubts as to 15
the victim’s veracity,” a victim’s identification is 16
typically sufficient to provide probable cause. Singer v. 17
Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) 18
(holding that a store clerk’s description of an incident of 19
shoplifting supported a finding of probable cause). 5
20
5 “Under New York law an identified citizen informant is
presumed to be reliable.” Caldarola v. Calabrese, 298 F.3d 156,
165 (2d Cir. 2002) (citing People v. Hetrick, 80 N.Y.2d 344, 349
(1992)). “We have endorsed a similar proposition.” Id.
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Wertman had no reason to doubt the honesty of either 1
Cirrincione or John, each of whom made statements under 2
penalty of perjury and lacked incentive to single out 3
Stansbury as the perpetrator. 6 Although Cirrincione’s and 4
John’s identifications were too problematic alone to provide 5
probable cause to arrest Stansbury, this flaw does not 6
render the evidence non-probative. “[E]vidence need not be 7
admissible at trial in order to support a finding of 8
probable cause.” 7 Phillips v. Allen, 668 F.3d 912, 915 (7th 9
(citations omitted). The same rule applies to identifications of
the perpetrator from photographic arrays. See, e.g., People v.
Jones, 2 N.Y.3d 235, 238 (2004).
6 This Court affords greater weight when witnesses testify
or swear “under threat of the criminal sanction for perjury.”
United States v. Hernandez, 85 F.3d 1023, 1028 (2d Cir. 1996).
7 The district court, applying the factors set forth in Neil
v. Biggers, 409 U.S. 188 (1972), determined that Cirrincione’s
and John’s identifications lacked sufficient “indicia of
reliability” to support probable cause to arrest Stansbury. See
Stansbury v. Wertman, No. 09-cv-04638-RJH, 2012 WL 183849, at *5-
6 (S.D.N.Y. Jan. 24, 2012) (discussing “[1] the opportunity of
[Cirrincione and John] to view the criminal at the time of the
crime, [2] [Cirrincione’s and John’s] degree of attention, [3]
the accuracy of [Cirrincione’s and John’s] prior description of
the criminal, [4] the level of certainty demonstrated by
[Cirrincione and John] at the confrontation, and [5] the length
of time between the crime and the confrontation”). Although we
agree with the district court that the identification procedures
employed here were suggestive, Biggers concerns the admissibility
of identifications at criminal trials, not whether an
identification can support probable cause to arrest a suspect.
Application of the Biggers framework requires the kind of
hindsight that, while useful in determining whether evidence
should be admitted at trial, is inappropriate when deciding
whether a police officer had probable cause to arrest. See
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Cir. 2012) (interpreting Illinois v. Gates, 462 U.S. 213 1
(1983)). “[A]lthough not able to be used at his [criminal] 2
trial, [victim’s] identification of [the perpetrator] may 3
properly provide a basis for probable cause to arrest him.” 4
People v. Nelson, 79 A.D.2d 171, 174 (N.Y. App. Div. 4th 5
Dep’t 1981) (Cardamone, Justice) (abrogated on other grounds 6
by People v. Cintron, 199 A.D.2d 526 (N.Y. App. Div. 2d 7
Dep’t 1993)). 8
The shoplifter’s Old Navy bags, which in the video 9
appear never to have been unfolded or used, properly 10
narrowed Wertman’s investigation to the universe of people 11
who may have visited an Old Navy shortly before the robbery. 12
Wertman’s discovery that unused bags were seen strewn on the 13
floor at a nearby store 22 minutes before the robbery, 14
around the time a “middle aged black woman” used Nicole 15
Phillips v. Allen, 668 F.3d 912, 915 (7th Cir. 2012)
(“Application of the Biggers framework is possible, however, only
after evidence has been gathered and an adversarial hearing
held.”). For the purposes of determining whether an
identification can support probable cause, the basic question is
whether the identification procedure was “so defective that
probable cause could not reasonably be based upon it.” Jenkins,
478 F.3d at 93. Because there is no suggestion that Cirrincione
or John was coerced into identifying the plaintiff, or that
Wertman thought either witness had any motive to lie, we conclude
that the identification procedures employed here - although
highly improper - were not so flawed that they could not
contribute to a finding of probable cause. .
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Stansbury’s credit card at Old Navy, was undoubtedly 1
relevant to assessing his probable cause determination. 2
This circumstantial evidence that Stansbury may have had an 3
opportunity to obtain unused Old Navy bags just prior to the 4
shoplifting incident is probative as to the likelihood that 5
she was the perpetrator. 6
When Wertman interviewed the Stansburys about their 7
presence at Old Navy, he observed that Linda Stansbury was 8
very nervous and evasive. Furthermore, Wertman noticed that 9
Nicole tried to cover for her mother during the interview. 10
A police officer’s contemporaneously recorded observation 11
that a suspect was evasive when questioned may be a 12
significant factor in a probable cause determination. See, 13
e.g., United States v. Gagnon, 373 F.3d 230, 238 (2d Cir. 14
2004). 8 “Courts consider several factors when determining 15
[probable cause], including the defendant’s excessive 16
nervousness . . . and evasive or contradictory answers to 17
questions.” People v. Kelley, 306 A.D.2d 699, 700 (N.Y. 18
App. Div. 3d Dep’t 2003) (cited approvingly by People v. 19
8 In another case, how much weight to give an officer’s
observations in this regard might depend in part on the officer’s
subjective mindset, even if such a mindset does not in itself
determine the existence or absence of probable cause, but
Wertman’s mindset was not at issue in this case. See Devenpeck
v. Alford, 543 U.S. 146, 153-154 (2004).
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Hall, 10 N.Y. 3d 303, 321 (2008)). Accordingly, the 1
district court erred by failing to consider this interview 2
in its probable cause analysis. 3
Other evidence tending to make it more likely that 4
Stansbury was the Stop & Shop culprit included Wertman’s 5
knowledge of her 1997 arrest for grand larceny in White 6
Plains and Wertman’s comparison of her handbag to the 7
perpetrator’s handbag as observed on the video. Though 8
neither piece of information individually yields a 9
significant step towards establishing probable cause, the 10
district court should have considered both as part of the 11
totality of circumstances. Similarly, John’s assertion that 12
the perpetrator was 5'5" tall (in light of Stansbury’s 5'9" 13
stature) is part of the total mix of evidence necessary to 14
properly evaluate Wertman’s decision to arrest Stansbury. 9
15
B. Probable Cause Under the Totality of the Circumstances 16
The district court analyzed the evidence seriatim, 17
finding that no piece of evidence was sufficient in itself 18
9 Cirrincione claims that she identified various physical
similarities between Stansbury and the perpetrator (sunken
cheeks, hooded eyes, and other distinctive facial
characteristics). There is no evidence that she communicated
these observations to Wertman; because they were not a factor in
Wertman’s decisions to arrest and prosecute Stansbury, we do not
consider them. See Panetta, 460 F.3d at 395.
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to establish arguable probable cause. Stansbury, 2012 WL 1
183849, at *4-6. Although it adequately evaluated the 2
pieces of evidence that it chose to consider, the district 3
court erred insofar as it did not account for the evidence 4
“on the totality of the circumstances.” Jenkins v. City of 5
New York, 478 F.3d 76, 90 (2d Cir. 2007) (citing Brinegar v. 6
United States, 338 U.S. 160 (1949)). 7
The totality of the circumstances test is no mere 8
formality; it may frequently alter the outcome of a case. 9
“Those who do not take into account conditional probability 10
are prone to making mistakes in judging evidence. They may 11
think that if a particular fact does not itself prove the 12
ultimate proposition (e.g., whether the [officer had 13
probable cause]), the fact may be tossed aside and the next 14
fact may be evaluated as if the first did not exist.” Al- 15
Adahi v. Obama, 613 F.3d 1102, 1105 (D.C. Cir. 2010). 10 “The 16
significance of each [relevant] factor[] may be enhanced or 17
10 This is precisely what the district court did in this
case. See, e.g., Stansbury, 2012 WL 183849, at *4 (“the
videotape was not sufficient to warrant a person of reasonable
caution in concluding that Stansbury was the perpetrator”)
(internal citations omitted); id. at *6 (it would be “impossible
for the Court to conclude that a jury would be unreasonable in
concluding that Cirrincione’s and John’s identifications of
Stansbury based on a single photo did not give Wertman probable
cause”); id. n.3 (“the same logic also renders [other officers’]
identification[s] insufficient to support probable cause”).
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diminished by surrounding circumstances.” Jenkins, 478 F.3d 1
at 90. Review for probable cause should encompass “plainly 2
exculpatory evidence” alongside inculpatory evidence to 3
ensure the court has a full sense of the evidence that led 4
the officer to believe that there was probable cause to make 5
an arrest. Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 6
2012) (quoting Panetta, 460 F.3d at 395). A story is never a 7
single chapter, it is the experience of the entire tale; the 8
same is true of probable cause. 9
The district court looked to our efforts in Jenkins v. 10
City of New York to support its determination. 11 In Jenkins, 11
New York Police Department (“NYPD”) detectives investigated 12
a series of robberies and a homicide committed by the main 13
perpetrator and an accomplice. 478 F.3d at 81. By tracing 14
the first victim’s stolen red Honda Civic, reportedly used 15
in all subsequent crimes, the NYPD found Blyther, the 16
perpetrator. When the police raided Blyther’s apartment, 17
they also found and arrested Jenkins; they contended that he 18
resembled descriptions of Blyther’s accomplice in that he 19
was a black male. Id. at 82-84, 89. Three lineups were 20
11 It comes as no surprise that the parties agree that
Jenkins provides the template to resolve the matter; they,
however, reach differing results.
18

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conducted for one witness and two victims, all of whom 1
identified Jenkins as Blyther’s accomplice in his crime 2
spree. Id. at 82. In one lineup, however, the witness was 3
not permitted to leave without fingering one of the men. 4
Id. at 83. Eight months later, Blyther named his actual 5
accomplice – not Jenkins. Id. at 82-83. Some material 6
facts - including Jenkins’s behavior prior to arrest - were 7
subject to genuine dispute. 8
This Court held that the officers developed probable 9
cause only after the second and third identifications 10
(which, though flawed, were procedurally superior to the 11
first lineup). Id. at 93. The totality of the evidence 12
available to the police at that time included: (1) Jenkins’ 13
presence in Blyther’s apartment days after the crimes; (2) 14
Jenkins’ race and gender, which corresponded with the 15
accomplice’s race and gender; (3) a witness’s coerced and 16
therefore meaningless identification of Jenkins; and (4) two 17
victims’ identifications of Jenkins in subsequent “less than 18
perfect” lineups. Id. at 90-93. Although the first three 19
pieces of evidence were insufficient, all four combined 20
established probable cause. Id. at 93. 21
22
19

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The totality of evidence in this case exceeds the 1
evidence the NYPD possessed in Jenkins following the third 2
lineup. Although the identifications from the photographic 3
array in this case were less probative than even the two 4
imperfect lineups in Jenkins, the evidence implicated 5
Stansbury before any flawed identification. Prior to the 6
identifications, Wertman was aware that, 22 minutes before 7
the shoplifting, a middle-aged black woman had used Nicole 8
Stansbury’s credit card at a nearby Old Navy and that new 9
shopping bags were seen strewn on the floor near the exit of 10
the store. When questioned about her whereabouts that 11
evening, Wertman observed that Stansbury was nervous and 12
evasive. Stansbury, moreover, had a previous arrest for a 13
similar crime. 14
On top of the circumstantial evidence against 15
Stansbury, five individuals (including three trained 16
officers and two innocent victims with no alleged motive to 17
lie, one of whom had training in facial identification) 18
could not distinguish her from the perpetrator in admittedly 19
flawed photographic arrays. The two victims submitted sworn 20
affidavits expressing no uncertainty that Stansbury was the 21
perpetrator. The fact that the victims did not offer timely 22
20

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detailed descriptions of the perpetrator means that probable 1
cause could not be based on Stansbury’s matching these 2
descriptions; it does not mean that the victims could not 3
meaningfully identify Stansbury. The district court 4
misstated the factual record in asserting that “the most the 5
Court can say is undisputed is that Cirrincione and John 6
told Wertman that the shoplifter was a black female who was 7
wearing a maroon windbreaker and blue jeans.” Stansbury, 8
2012 WL 183849, at *7. Such a description might, as the 9
lower court suggested, be comparable to Jenkins; however, 10
there is significantly more evidence here. 11
John’s claim that the perpetrator was 5'5" tall is 12
evidence indicating that Stansbury could be innocent, but 13
this evidence was outweighed by the mountain of evidence to 14
the contrary. Boyd v. City of New York, 336 F.3d 72, 74, 77 15
(2d Cir. 2003). In Boyd, the police had probable cause to 16
make an arrest based on Boyd’s purchase of a stolen car, 17
even though the car did not “look stolen” and Boyd may not 18
have known it was stolen. Id. (asserting, however, that 19
there was not probable cause to support a prosecution). 20
Boyd reaffirms that some exculpatory evidence does not make 21
an arrest illegal when the totality of evidence still 22
21

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establishes probable cause to believe that the suspect 1
committed the crime. Such is the case here, where the only 2
exculpatory evidence is a guess from a store employee as to 3
the perpetrator’s height that was off by four inches. This 4
deficiency, if it was one, was overcome by other evidence, 5
including a positive, sworn identification by the same 6
employee. 7
Because there was an identifiable crime and a 8
substantial volume of contemporaneously-recorded, 9
uncontroverted circumstantial evidence that supported the 10
conclusion that Stansbury was the perpetrator, Wertman had 11
probable cause to arrest Stansbury. No reasonable juror 12
could have held that Wertman did not have probable cause to 13
believe that Stansbury had committed the larceny at the Stop 14
& Shop. 12
15
16
12 While Wertman did have probable cause to arrest
Stansbury, this does not mean that he conducted a perfect
investigation. “Although a better procedure may have been for
the officer[] to investigate [Stansbury’s] version of events more
completely, the arresting officer does not have to prove [a
suspect’s] version wrong before arresting [her].” Curley v.
Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001). Perhaps
Wertman should have been more thorough, but he did not
“misrepresent[] the evidence to the prosecutors” and no evidence
suggests that he broached protocol in any way other than the use
of an inadequate photographic array. Cf. Manganiello v. City of
New York, 612 F.3d 149, 165 (2d Cir. 2010). This alone does not
mitigate the probable cause that his investigation provided.
22

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III. Malicious Prosecution 1
Because lack of probable cause is an element of a 2
malicious prosecution claim, “the existence of probable 3
cause is a complete defense to a claim of malicious 4
prosecution.” Manganiello v. City of New York, 612 F.3d 5
149, 161-62 (2d Cir. 2010) (alteration omitted) (quoting 6
Savino, 331 F.3d at 72). The presumption of probable cause 7
established by a grand jury indictment “may be rebutted ... 8
by evidence that the indictment was procured by fraud, 9
perjury, the suppression of evidence or other police conduct 10
undertaken in bad faith.” Id. at 162 (alterations, 11
citations, and quotation marks omitted). However, once 12
probable cause has been established, it is impossible for 13
plaintiff to prevail on a malicious prosecution claim as a 14
matter of law. See Savino, 331 F.3d at 72. 15
The probable cause standard in the malicious 16
prosecution context is slightly higher than the standard for 17
false arrest cases. Boyd, 336 F.3d at 76. “Probable cause, 18
in the context of malicious prosecution, has also been 19
described as such facts and circumstances as would lead a 20
reasonably prudent person to believe the plaintiff guilty.” 21
Id. For the reasons discussed above, the uncontroverted 22
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evidence adduced in Wertman’s investigation suffices to meet 1
that standard. 2
As a matter of law, the uncontroverted facts in this 3
case created probable cause to initiate Stansbury’s 4
prosecution for petit larceny; Wertman was therefore 5
entitled to judgment as a matter of law. 6
7
Conclusion 8
“Where the record taken as a whole could not lead a 9
rational trier of fact to find for the nonmoving party, 10
there is no ‘genuine issue for trial.’” Scott, 550 U.S. at 11
380 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio 12
Corp., 475 U.S. 574, 586-87 (1986)). Ignoring frivolous 13
allegations, the documented record establishes 14
uncontroverted facts that, taken together, provided probable 15
cause for the arrest and prosecution of Linda Stansbury. 16
Officer Wertman is therefore entitled to judgment as a 17
matter of law. 18
For the foregoing reasons, the opinion and order of the 19
district court is REVERSED, and the case is REMANDED with 20
instruction for the district court to grant Wertman’s motion 21
for summary judgment. 22
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