B.C.R. Transport Co., Inc. v. Fontaine, No. 83-1335

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before COFFIN and BREYER; MALETZ
• Citation: 727 F.2d 7
• Parties: B.C.R. TRANSPORT CO., INC., et al., Plaintiffs, Appellees, v. Norman FONTAINE, et al., Defendants, Appellants.
• Docket Number: No. 83-1335
• Decision Date: 08 February 1984

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727 F.2d 7 B.C.R. TRANSPORT CO., INC., et al., Plaintiffs, Appellees,
v.
Norman FONTAINE, et al., Defendants, Appellants. No. 83-1335. United States Court of Appeals,
First Circuit. Argued Dec. 6, 1983.
Decided Feb. 8, 1984.

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Mary E. O'Neil, Fall River, Mass., with whom John F. O'Donoghue, and Law Offices of John F. O'Donoghue, Fall River, Mass., were on brief, for Norman Fontaine.

Max Volterra, with whom Volterra, Goldberg & Mangiaratti Law Counsellors, Inc., Attleboro, Mass., was on brief, for plaintiffs, appellees.

Before COFFIN and BREYER, Circuit Judges, and MALETZ, ^* Senior Judge.

MALETZ, Senior Judge.

In September, 1980, plaintiffs-appellees B.C.R. Transport Co. (B.C.R.) and Richard Restivo, together with Restivo's wife and daughter, brought a civil rights action under 42 U.S.C. Sec. 1983 (1976) against defendant-appellant Norman Fontaine and three other police officers. The gravamen of their complaint was that the four officers allegedly conducted a wrongful search and seizure of their property in violation of plaintiffs' Fourth Amendment rights. As against defendant Fontaine the jury awarded a total of $150,000 in compensatory damages and $5,000 in punitive damages to Richard Restivo, and $75,000 in compensatory damages and $1,000 in punitive damages to B.C.R. Although the jury returned a verdict against a second officer, he has not appealed. Judgment was entered for the remaining officers. No liability was found against any of the officers insofar as either of the Restivo women were concerned. At the trial defendant Fontaine moved for a directed verdict, judgment notwithstanding the verdict, and a new trial. These motions were all denied, and it is from this that Fontaine appeals.

Defendant Fontaine raises five points on his appeal. The first is that as a matter of law he cannot be found to have acted without probable cause since he obtained search

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and arrest warrants on the basis of information furnished by a complainant-victim. A closely related second contention is that even if he acted without probable cause he nevertheless qualifies for immunity from suit under section 1983, having acted upon a victim's complaint. Fontaine next argues that plaintiff Richard Restivo is estopped from bringing a section 1983 action since he failed to challenge the validity of the search warrant in a state criminal prosecution. His fourth contention is that the evidence is insufficient to show either that Fontaine searched B.C.R.'s property or that he did so in an unreasonable manner. His final argument is that the $75,000 damage award to B.C.R. is excessive and unsupported by the evidence.

We find no merit to any of these contentions. Accordingly, for the reasons that follow, we affirm the district court's judgment.

I.

On the evening of April 9, 1980, the Swansea, Massachusetts police department received a telephone call from a Swansea resident complaining that a stranger with a suitcase was walking along the rural road in front of her home. Defendant Fontaine responded to the call and confronted the stranger who identified himself as John Hubbard of Williamstown, Massachusetts. Hubbard was brought to the Swansea police station and placed in a cell. Under questioning by Fontaine and another police officer, Hubbard told the officers that he had agreed to work for an employee of B.C.R., Jack Riley, whom Hubbard had met in Georgia. Upon their return to Massachusetts Hubbard stated that Riley, and then later Richard Restivo, held Hubbard against his will with force of arms and allegedly made him work without pay.

When Hubbard's wife learned that he had been arrested she telephoned Restivo's wife, Beatrice, who had her daughter, Lori Ann Restivo, go to the police station to see what the problem was. Upon her arrival there, Fontaine asked the younger Restivo if Hubbard took drugs or narcotics since he seemed to be affected by some kind of mind-altering substance. It appears that during the time Hubbard was in police custody he was heard yelling obscenities and repeating incoherent phrases.

The day after Hubbard was arrested his wife and family came to the police station to visit him. Fontaine did not specifically question either Hubbard's wife or Lori Ann Restivo regarding Hubbard's story, although he had abundant opportunity to do so at the police station. Had Fontaine made inquiry he would have discovered that the Restivos not only provided food, shelter and employment for Hubbard, but that he was also free to leave the Restivo home anytime. He was, in fact, treated more as a member of the Restivo family than as a B.C.R. employee.

After confirming that Hubbard had no known criminal record, Fontaine applied for and obtained search and arrest warrants, attaching in support thereof his affidavit which outlined Hubbard's story. He and three other officers executed the warrants on April 10, 1980.

Jack Riley and Richard Restivo were both arrested and then taken to the police station. A B.C.R. tractor-trailer was also seized and taken to the Swansea police station where it was later searched apparently by Fontaine and at least one other officer. In addition a search was conducted of the Restivo home in the course of which an unregistered firearm was discovered and seized. Richard Restivo was eventually indicted on December 5, 1980, for assault, battery, kidnapping and possession of an unregistered firearm. The county district attorney filed a nolle prosequi for all but the firearm charge, and on this charge Restivo was convicted.

Against this backdrop we consider Fontaine's first argument--that probable cause for the warrants existed as a matter of law.

II.

The thrust of Fontaine's first contention is that when an officer obtains a warrant based upon information supplied by an alleged

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victim of a crime, probable cause to search, seize or arrest exists per se. While it is undoubtedly true that probable cause determinations predicated on information furnished by a victim are generally considered to be reliable, see, e.g., United States v. Mahler, 442 F.2d 1172, 1174-75 (9th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971), no court to our knowledge has ever adopted the per se approach which Fontaine advocates here. ¹

The short answer to Fontaine's argument is...