Finigan v. Marshall

Decision Date28 July 2009
Docket NumberDocket No. 07-0964-cv.
PartiesGeneva FINIGAN, Plaintiff-Counter-Defendant-Appellee, v. William E. MARSHALL, Individually and in His Official Capacity as Deputy Sheriff of the County of Saratoga, New York, Defendant-Counterclaimant-Appellant.<SMALL><SUP>*</SUP></SMALL>
CourtU.S. Court of Appeals — Second Circuit

Dennis B. Schlenker, Law Office of Dennis B. Schlenker, Albany, NY, for Appellee.

Before: WINTER, KATZMANN, and RAGGI, Circuit Judges.

WINTER, Circuit Judge:

William E. Marshall, Deputy Sheriff of Saratoga County, appeals from Judge Hurd's denial of qualified immunity from a claim of false arrest. On December 26, 2003, Geneva Finigan went to her former marital residence, where her estranged husband resided, while he was not at home and without his permission, to remove personal property. Marshall, responding to a 911 burglary-in-progress report, arrived at the scene and took Finigan into custody. After Finigan was released without having been charged with a crime, she brought a Section 1983 action against Marshall in his individual and official capacity on theories of false arrest and abuse of process in violation of rights secured by the Fourth and Fourteenth Amendments. See 42 U.S.C. § 1983. The district court granted Marshall's motion for summary judgment as to the abuse of process claim,1 but denied it as to the false arrest claim, concluding that Marshall did not have probable cause and was not entitled to qualified immunity.

We conclude that, even though appellee shared title to the house with her estranged husband, Marshall had probable cause to arrest Finigan. We therefore vacate the district court's judgment with respect to that claim and remand for proceedings consistent with this opinion.

BACKGROUND

The relevant events giving rise to this appeal are not in dispute. See Note 2, infra. They took place in the small community of Stillwater in Saratoga County, New York. In April 2003, Finigan separated from her husband of twenty-eight years, Robert Finigan, and moved out of their marital home ("the premises"). By the fall of that same year, divorce proceedings had begun. As of December 2003, the divorce proceedings remained pending, and Finigan remained a titled owner of her former residence, there having been no equitable distribution of property.

As is common in a small community, the major players in the relevant events had overlapping personal histories. Robert Finigan was a member of the town ambulance corps and occasionally interacted socially with Marshall. Robert Wood, Robert Finigan's brother-in-law and neighbor, was Marshall's close friend. Marshall, Robert Finigan, and Geneva Finigan all attended the same high school.

On or around December 21, 2003, appellee learned that her future ex-husband would be away for the Christmas holidays. Although aware that her husband had changed the locks, she decided to remove some items without his knowledge.

Finigan went to the premises on December 24, 2003, and called a locksmith. She showed him her driver's license listing the premises as her address and falsely told him she had lost her keys. He then opened the back door for her. After removing a few items of personal property, Finigan left the premises, leaving the basement door unlocked.

On December 26, 2003, Finigan, accompanied by several family members, including her brother, Everett Folmsbee, returned to the premises with a van to retrieve more personal property such as furniture, appliances, and linens. After about an hour, Finigan loaded the van and drove to a friend's house where she planned to store the property.

Meanwhile, Marshall, who was on patrol approximately twenty-five miles away in Galway, responded to a report of a burglary-in-progress in Stillwater. Upon arrival, he recognized the premises as the residence of Robert Finigan. He had personal knowledge that Robert Finigan resided there alone, that Geneva Finigan had moved out sometime before, and that divorce proceedings were pending. Marshall also recognized Geneva Finigan's brother, Folmsbee, and asked his purpose for being on the premises. Folmsbee explained that he was helping his sister retrieve some items. Shortly thereafter, Robert Finigan's brother-in-law and neighbor, Robert Wood, arrived on the scene. Wood told Marshall that he was watching the premises for Robert Finigan while Finigan was away for the holidays. Because his brother-in-law had changed the locks, Wood expressed uncertainty as to how Geneva Finigan had obtained access to the premises.

After having unloaded the van at her friend's house, Geneva Finigan received a phone call from Folmsbee, who informed her that "Bill Marshall [was at the premises] to arrest [her]." Geneva Finigan returned to the premises where Marshall inquired whether she had removed property. She admitted that she had done so without her husband's knowledge. Marshall then directed her to get into the back seat of his patrol car, whereupon he resumed his questioning. Geneva Finigan informed him that she had legal title to the residence, that she was removing only her own property, and that her divorce attorney told her she could do so. Marshall made no attempt to verify whether Finigan held legal title, nor did he make any other inquiries at the scene. Instead, he transported her to the Stillwater police station where she was read her rights. At some point, either just before Marshall placed Finigan under arrest or at the station, Finigan informed Marshall that she had used the services of a locksmith to enter the premises. Marshall ultimately released Finigan, who was never charged with a crime.

Marshall moved for summary judgment asserting the existence of probable cause or qualified immunity. The district court denied the motion. It concluded that Marshall arrested Finigan when, armed and uniformed, he directed Finigan to get into the back seat of his patrol car. As to probable cause, the district court noted that Marshall had failed to investigate whether Finigan was legally entitled to enter the residence by virtue of her title to the property and had failed to corroborate Wood's statements indicating that Finigan did not have permission to enter the premises. Consequently, the court concluded that it was "difficult to envision any crime of which [Finigan] may have been guilty." Therefore, Marshall did not, as a matter of law, have probable cause to arrest Finigan and was therefore not entitled to qualified immunity.

DISCUSSION

On appeal,2 Marshall contends that the district court erred when it denied his motion for summary judgment because he had probable cause to arrest Finigan for burglary, or in the alternative, because he was entitled to qualified immunity. Finigan argues that because she was a titled owner of the real and personal property at issue, Marshall possessed no reliable information that Finigan had committed, or was about to commit, a crime. Thus, Finigan argues that Marshall did not have probable cause for the arrest and is not entitled to qualified immunity.

For the reasons that follow, we conclude that Marshall had probable cause to arrest Finigan.

We review the district court's denial of a summary judgment motion based on a defense of qualified immunity de novo. Jones v. Parmley, 465 F.3d 46, 55 (2d Cir.2006). We limit ourselves to undisputed facts establishing the defense as a matter of law. Id. (citing Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir.1992)).

Before deciding whether Marshall is entitled to qualified immunity, we must decide whether Finigan "has alleged a constitutional violation at all."3 Kerman v. City of New York, 261 F.3d 229, 235 (2d Cir.2001); see also Jones, 465 F.3d at 55. Finigan cannot recover for false arrest if Marshall had probable cause to arrest her. See Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.1995). If facts supporting probable cause to arrest are ultimately found not to have existed, an arresting officer will nonetheless be entitled to immunity from suit based on "arguable probable cause," which requires that he or she show that it was objectively reasonable to believe that probable cause existed or that "`officers of reasonable competence could disagree on whether the probable cause test was met.'" Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004) (quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.1991)).

In determining whether there was probable cause, our inquiry is an objective one that focuses on the facts available to the arresting officer at the time of the arrest. Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir.2006). Probable cause exists when, based on the totality of circumstances, the officer has "knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested." Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir.2007); see also Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.2006). Such is the case here.

Under New York law, a person is guilty of burglary in the second degree when he or she "knowingly enters or remains unlawfully in a [dwelling] with [the] intent to commit a crime therein." N.Y. Penal Law § 140.25. Criminal trespass is a lesser included offense of burglary. People v. Devonish, 6 N.Y.3d 727, 810 N.Y.S.2d 380, 843 N.E.2d 1120, 1120 (2005). A person commits criminal trespass in the second degree "when he [or she] knowingly enters or remains unlawfully in a dwelling." N.Y. Penal Law § 140.15. "A person `enters or remains unlawfully' in or upon premises when he [or she] is not licensed or privileged to do so." Id. § 140.00(5).

In our view, there was probable cause to arrest Geneva Finigan for criminal trespass in the second degree. At the time of...

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