Wilson v. Russo
| Decision Date | 04 November 1999 |
| Citation | 212 F.3d 781 |
| Parties | (3rd Cir. 2000) FRANKLIN WILSON, Appellant v. DARRIN J. RUSSO, INDIVIDUALLY AND AS A POLICE OFFICER OF THE FRANKLIN TOWNSHIP POLICE DEPARTMENT, SOMERSET COUNTY, NEW JERSEY; CLEMENT WORONIECKI, INDIVIDUALLY AND AS A POLICE OFFICER OF THE FRANKLIN TOWNSHIP POLICE DEPARTMENT, SOMERSET COUNTY, NEW JERSEY; FRANKLIN TOWNSHIP POLICE DEPARTMENT, SOMERSET COUNTY, NEW JERSEY; TOWNSHIP OF FRANKLIN, SOMERSET COUNTY, NEW JERSEY; JOHN DOES, 1-15, represent 1 or more employees or agents of defendant, Franklin Township Police Department who, singly or in combination participated in the unlawful search, false arrest and false imprisonment of the plaintiff; 16-30, represent 1 or more employees or agents of said defendant who, singly or in combination participated in the supervision and training of the defendants, Russo, Woroniecki, and John Does 1-15; 31-45, represent 1 or more employees or agents of defendant, Township of Franklin who, singly or in combination, participated in the supervision and training of said individual defendants. NO. 98-5283 Argued: |
| Court | U.S. Court of Appeals — Third Circuit |
On Appeal From the United States District Court For the District of New Jersey (D.C. Civ. No. 97-cv-00546) District Judge: Honorable Mary Little Cooper
[Copyrighted Material Omitted]
Counsel for Appellant: IRINA ELGART, ESQUIRE (ARGUED) Wolff & Samson 5 Becker Farm Road Roseland, NJ 07068
LOUIS S. RAVESON, ESQUIRE Urban Legal Clinic, Rutgers-Newark 15 Washington Street Newark, NJ 07102
Counsel for Appellee: RICHARD J. GUSS, ESQUIRE (ARGUED) Bivona, Cohen, Kunzman, Coley, Yospin, Bernstein & DiFrancesco 15 Mountain Blvd. Warren, NJ 07059
Before: BECKER, Chief Judge, GARTH, Circuit Judges and POLLAK,* District Judge
Franklin Wilson was arrested and spent a month in jail for an armed robbery he did not commit. As plaintiff in this civil rights lawsuit arising under 42 U.S.C. S 1983, he claims that his arrest and subsequent incarceration violated his federal and state constitutional rights to be free from arrest and detention without probable cause. The crux of his claim is that the arresting officer, defendant Darrin J. Russo, both lied and omitted material facts during his application for Wilson's arrest warrant. Russo told the judge that two victims, who each had ample opportunity to view the robber, had stated that the assailant was between 6'3" and 6'5". Russo did not, however, tell him that Wilson's driving abstract showed him to be 5'11". Nor did Russo tell the judge that one of these eyewitnesses did not identify Wilson when shown a photographic array. What he did tell him was that the other victim positively identified Wilson, and that someone else had seen Wilson in the vicinity near the time of the robbery. Wilson urges us to decide that Russo omitted the exculpatory facts with "reckless disregard for the truth" and that the warrant affidavit would not have established probable cause if the officer had been more forthcoming.
The District Court found that Russo had qualified immunity and granted summary judgment in his favor. In evaluating a claim that an officer both asserted and omitted facts with reckless disregard for the truth, we hold that: (1) omissions are made with reckless disregard for the truth when an officer recklessly omits facts that any reasonable person would know that a judge would want to know; and (2) assertions are made with reckless disregard for the truth when an officer has obvious reasons to doubt the truth of what he or she is asserting. Viewing the facts in the light most favorable to the plaintiff, we conclude that Russo acted in reckless disregard for the truth in some, but not all, of his omissions and assertions to the judge. However, since none of these misstatements or omissions were material, in that the warrant would have established probable cause even if Russo had not made them, we conclude that Wilson's right to be free from arrest without probable cause was not violated. Therefore, we affirm the grant of summary judgment.1
On February 3, 1995, Officers Lipp and Woroniecki of the Franklin Township (New Jersey) Police Department responded to a call reporting an armed robbery at the Great Expressions Floral Shop in the Franklin Towne Center. Detective Woroniecki interviewed Renee Braverman, the owner of the shop, and Graham Druce, an employee in the shop. They both said that the robber was in the store from a little before 3:00 pm until approximately 3:50 pm. When the robber entered the shop, Braverman was discussing a bridal order with a customer. Several times during the robber's visit, Druce approached him and asked him if he needed assistance, which he repeatedly declined. The bridal order customer left around 3:50, and the robber brought a glass vase and candle to the counter, behind which Braverman was standing. The robber asked Druce, who was standing in the back room, if the candle would cause the glass vase to break. When Druce walked towards the counter the robber put his left hand on Druce's right shoulder and told Braverman to empty the register quickly and put the money in a brown paper bag along with the candle and vase. Druce and Braverman both said they saw a small revolver in his right hand.
Braverman, a white woman who is "around five six," described the robber as a light skinned black male, approximately 30 years old, "very tall," between 6'2" and 6'4", between 190 and 200 pounds, with black wavy hair, a waist-length light denim jacket, cream colored sweater, and blue denim jeans. Druce, a "five-five, five-six" white man, described the robber as a "very tall male, light black in color, his middle 20s, about 25, about 6'5" tall, maybe a little bit taller." He told the police the robber had an athletic build, was clean shaven, had well groomed short hair and was wearing a blue denim jacket, blue denim jeans, and sneakers. Druce said that if he saw a picture of the robber he was absolutely certain he could pick him out because of his noticeable height.
Detective Bisignio, also of the Franklin Township Police, canvassed the area for witnesses. Kelly N. DaVila, who worked in a nearby dental office, told him that she had seen a dental patient named Franklin Wilson in the Franklin Center, walking away from the Mayfair Foodtown Area towards a pizza shop after 3:00 that day, "probably about a half hour" before the police officers arrived (making her estimated viewing around 3:30). She described Wilson as a 6'0" tall, clean shaven, thin, light-skinned black man with brown hair and brown eyes. She told Bisignio that he had some entanglement with heroin because his dental records indicated that he was seeking methadone treatment.
Bisignio relayed this information to Woroniecki, who conducted a criminal history and Department of Motor Vehicles (DMV) check of Wilson. The criminal history report listed Wilson as being 5'10" and weighing 160 pounds. The DMV record apparently listed him as being 5'11". Woroniecki received a photograph of Wilson from the Middlesex County Identification Bureau, which he took to the Somerset County Sheriff 's Office in order to compile a photographic lineup. The office compiling the photographic array was apparently not aware of the physical descriptions of the witnesses. On the afternoon of February 6, Woroniecki fell ill and ceased all involvement in the investigation of the floral shop robbery.
Detective Russo took over the investigation. On February 6, he was provided with Officer Lipp's report and the photographic array from the Somerset County Sheriff 's Office. Lipp's report includes a summary of the robbery and a description of the robber that combined the Druce and Braverman physical descriptions. The report identifies the robber as between 6'3" and 6'5". It does not mention DaVila's assertion that she saw Wilson. Russo claimed that he did not review any other officer's notes. He testified that he reviewed and authorized the photographic array without knowing what the witnesses had said about the robber.
Russo showed the photographic array to Braverman and Druce individually. He told them each that the robber might not be in the array, and that if they were to identify anyone they must be one hundred percent certain that the person they were identifying was the person who robbed them. Braverman immediately selected Wilson's photograph as representing the robber. Druce studied the array for about two minutes, indicating no recognition, and finally concluded that he could not say with certainty that he recognized the robber among them.
Russo testified that he does not remember whether he knew Wilson's height and weight when he applied for the warrant. When questioned during deposition about whether he knew Wilson's actual height and weight, he said "Well, it'd probably be on the driver's license abstract because I obtained that actually just for his address." In his response to Russo's summary judgment motion, Wilson made the uncontroverted assertion that this information is on the driver's abstract.
Russo met with a prosecutor and reviewed the facts before the two of them sought a search warrant from Superior Court Judge Dilts. Through his responses to the questions of the prosecutor, Russo informed Judge Dilts that two witnesses had described the robber as a light skinned black male "six-three to six-five." He did not tell him that Wilson's driver's abstract stated that he was 5'11", or that his criminal history report stated that he was 5'10". Russo also represented that he had created a photographic array "as a result of the physical descriptions." This is contrary to what the record indicates, which is that those making the photo array had the photograph of Wilson, but...
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