280 F.3d 371 (3rd Cir. 2002), 00-2082, Donahue v. Gavin

Docket Nº:00-2082
Citation:280 F.3d 371
Party Name:CHRISTOPHER F. DONAHUE, APPELLANT v. JAMES GAVIN; GEORGE YATRON; MICHAEL MARINO; JEFFREY HAWBECKER; PAUL EVANKO; RICHARD PATTON; JAMES GIRARD; GREGORY PEASE; JOHN SHANAHAN; ROBERT SCHWARZ; BERKS COUNTY; FIRST SAVINGS BANK OF PERKASIE; BELL ATLANTIC, INC.
Case Date:February 07, 2002
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 371

280 F.3d 371 (3rd Cir. 2002)

CHRISTOPHER F. DONAHUE, APPELLANT

v.

JAMES GAVIN; GEORGE YATRON; MICHAEL MARINO; JEFFREY HAWBECKER; PAUL EVANKO; RICHARD PATTON; JAMES GIRARD; GREGORY PEASE; JOHN SHANAHAN; ROBERT SCHWARZ; BERKS COUNTY; FIRST SAVINGS BANK OF PERKASIE; BELL ATLANTIC, INC.

No. 00-2082

United States Court of Appeals, Third Circuit

February 7, 2002

January 8, 2001

Appeal from the United States District Court for the Eastern District of Pennsylvania (Civ. No. 98-cv-01602) District Judge: Hon. Thomas N. O'Neill, Jr.

Page 372

Jordan B. Yeager, Esq. (Argued) Boockvar & Yeager 714 Main Street Bethlehem, PA 18018. Attorney for Appellant

D. Michael Fisher, Esq. Attorney General of the Commonwealth of Pennsylvania John O. J. Shellenberger, Esq. (Argued) Chief Deputy Attorney General Calvin R. Koons, Esq. Senior Deputy Attorney General John G. Knorr, III, Esq. Chief Deputy Attorney General Chief, Appellate Division Office of the Attorney General 21 S. 12th Street, 3rd Floor Philadelphia, PA 19107. Attorneys for Appellees, James Girard and Gregory Pease

Barry W. Sawtelle, Esq. (Argued) Kozloff Stoudt, P. C. The Berkshire, 6th Floor 501 Washington Street P. O. Box 877 Reading, PA 19603. Attorneys for Appellees, James Gavin, George Yatron and Berks County

Before: Mansmann, McKEE and Ambro, Circuit Jud ges

OPINION OF THE COURT

McKEE, Circuit Judge.

Christopher F. Donahue appeals the district court's grant of summary judgment in favor of the defendants and against Donahue in his civil rights action under 42 U.S.C. S 1983. The district court based its ruling on its determination that each of the defendants had either qualified or absolute immunity. The suit arises from the investigation and prosecution of a marijuana distribution conspiracy involving Donahue. He alleges a civil rights claim based upon defendants' purported malicious prosecution of him in violation of the Fourth Amendment.1

For the reasons that follow, we will affirm.2

Page 373

I. FACTS

In late 1990, State Troopers Pease and Girard were the lead officers in an investigation of a marijuana distribution ring involving a Berks County resident named "Erwin Bieber." In June of that year, Pease learned that a marijuana dealer in Albuquerque, New Mexico was regularly placing telephone calls from Albuquerque to southeastern Pennsylvania. The telephone numbers he was calling were listed to a telephone in Montgomery County and one in Berks County. The Berks County number was assigned to a business called "Guitars East." Erwin Bieber received mail at the address listed for that business.

Pease responded by acquiring information that included Bieber's telephone toll records. Meanwhile, the Albuquerque Police Department placed a pen register on the New Mexico dealer's telephone line.3 A pen register was also installed on the Montgomery County telephone that the New Mexico dealer was calling. Pease also learned that another telephone was registered to Bieber at the address of "Guitars East." The Montgomery County telephone involved in calls to and from Albuquerque was also frequently being used in making calls to and from Bieber's telephones. In late 1990, the Berks County District Attorney's Office was asked to assist in the ongoing investigation the Pennsylvania State Police were conducting into this marijuana distribution ring, and Troopers Pease and Girard informed the Berks County District Attorney's Office of the information they had received from the Albuquerque Police Department. Yatron was then the Berks County District Attorney and James Gavin was an Assistant District Attorney. On October 2, 1990, the State Police installed pen registers on the two telephone lines registered to Bieber and Guitars East pursuant to authorizations obtained from the Berks County Court of Common Pleas.

Yatron and Gavin eventually filed two applications with the Pennsylvania Superior Court seeking authorization to conduct non-consensual electronic surveillance on Bieber's two telephone lines.4 The application included an affidavit signed by Troopers Pease and Girard. The Superior Court granted the application and entered orders authorizing interception of wire and oral communications on Bieber's two telephone lines.

Trooper Pacelli installed and activated monitoring equipment on Bieber's telephone lines pursuant to those authorizations.5 Thereafter, from October 12, to Page 374

November 17, 1990, Pease, Girard, and other Troopers working with them listened to the telephone calls to and from Bieber's two telephones.6 The monitored conversations included discussions between Bieber and Donahue.

State Police had not been aware of Donahue before they began monitoring Bieber's telephone conversations. However, once they began monitoring those calls, the State Police heard and recorded a number of conversations between Bieber and a "Christopher Donahue" residing at 1503 Callowhill Road in Perkasie, Pennsylvania.

We need not reiterate the rather involved chronology of the investigation that followed, the content of the many conversations that police recorded between Bieber and Donahue, or the results of the surveillance the police conducted while monitoring those calls. For our purposes, it is sufficient to note that the numerous discussions between Bieber and Donahue implicated both of them in a large conspiracy to distribute substantial quantities of marijuana in and around Berks County, Pennsylvania. Eventually, police learned that Bieber was receiving marijuana from sources in California and New Mexico and distributing it to several people in Pennsylvania, including Donahue.

On November 17, 1990, police followed Bieber to Philadelphia International Airport where he met two other men with suitcases. Police followed the trio from the airport to 1503 Callowhill Road, Donahue's residence. Police maintained surveillance as Bieber and his companions then drove to a trailer home owned by Steve Hartman. Police arrested the trio along with Hartman shortly after they left Hartman's trailer.

Bieber began to talk to the police almost immediately. He told Trooper Pease that he recently received 16 pounds of marijuana from suppliers in California and that he had delivered all 16 pounds to Donahue on November 7, 1990. Police arrested Donahue after additional investigation, and charged him with conspiracy to distribute marijuana, conspiracy to participate in a corrupt organization, and possession of marijuana with the intent to distribute. The arrest warrant for Donahue was based upon a criminal complaint that incorporated an affidavit of probable cause that Pease and Girard signed.

Donahue filed a suppression motion prior to trial. He argued that the electronic surveillance had been initiated and maintained in a manner that violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 PA. CONST. STAT. ANN. SS 5701-5748. After the suppression motion was denied, Donahue proceeded to trial before a jury.

Bieber was one of the prosecution witnesses at that trial. He testified about his extensive drug dealings with Donahue, including the aforementioned delivery of 16 pounds of marijuana on November 7, 1990. The jury convicted Donahue of all the charges against him.

On direct appeal, the Pennsylvania Superior Court reversed and ordered a new trial. That court held that, given Bieber's testimony, the trial court committed reversible error in not giving a "corrupt source" jury instruction. Commonwealth v. Donahue, 630 A.2d Page 375

1238, 1246-47 (Pa. Super. 1993).7 However, the court rejected all of Donahue's other arguments, including his argument that his suppression motion should have been granted because the electronic surveillance was contrary to law. Id. at 278-281.8 Donahue's Petition for Allowance of Appeal to the Pennsylvania Supreme Court was denied. Donahue v. Commonwealth, 645 A.2d 1316 (Pa. 1994).

In January of 1997, the Berks County Court of Common Pleas dismissed the corrupt organizations charges against Donahue based upon intervening changes in the applicable case law. At that point, Donahue had already spent more than two and one-half years in prison on his sentence. The Berks County District Attorney concluded that Donahue would not receive any additional incarceration if he were to be convicted in a retrial pursuant to the Superior Court's remand. Accordingly, the Assistant District Attorney who was then assigned to the case asked the trial court to enter a nolle prosequi ("nol pros"), thereby terminating the prosecution. The state court granted that request, and those charges that remained after the remand were dismissed.

II. DISTRICT COURT PROCEEDINGS

A. The 1995 Action.

In April of 1995, Donahue filed a two-count complaint in the district court pursuant to 42 U.S.C. S 1983. He sought monetary damages against Berks County as well as Yatron, Gavin, Pease, and Girard, based upon the electronic surveillance that had been conducted during the 1990-91 investigation and prosecution. In Count I of his complaint, he alleged an illegal search and seizure in violation of the Fourth, Fifth and Fourteenth Amendments. Count II alleged violations of the Pennsylvania Wiretapping and Electronic Surveillance Act, 18 PA. CONST. STAT. ANN. SS 5701-5748.

The defendants moved for summary judgment or dismissal under Fed. R. Civ. P. Rule 12(b)(6), based upon the applicable statutes of limitations. The district court agreed, and entered orders dismissing the suit on January 4, 1996. Donahue did not appeal.

B. The 1998 Action.

In 1998, Donahue filed another civil action based upon the aforementioned investigation and prosecution. The complaint asserted: a S 1983 Fourth Amendment claim for...

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