Ricci v. Urso, 91-2067

• Decision Date: 08 April 1992
• Docket Number: No. 91-2067,91-2067
• Citation: 974 F.2d 5
• Parties: Dennis W. RICCI, Plaintiff, Appellee, v. Captain Michael URSO, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 5

974 F.2d 5

Dennis W. RICCI, Plaintiff, Appellee, v. Captain Michael URSO, et al., Defendants, Appellants.

No. 91-2067.

United States Court of Appeals First Circuit.

Heard April 8, 1992.

Decided Aug. 31, 1992.

Robert F. Botvin, Sp. Asst. Atty. Gen., with whom James E. O'Neil, Atty. Gen., was on brief, for defendants, appellants.

Amato A. DeLuca with whom Elizabeth McDonough Noonan and Mandell, Goodman DeLuca & Schwartz, Ltd. were on brief, for plaintiff, appellee.

Before BREYER, Chief Judge, CYR and STAHL, Circuit Judges.

BREYER, Chief Judge.

Dennis Ricci brought this civil rights action against three Rhode Island police officers who, he says, arrested him without "probable cause." U.S. Const. amend. IV; 42 U.S.C. § 1983. The officers moved for summary judgment on qualified immunity grounds. See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The district court denied their motion, and the defendants now appeal. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (interlocutory appeal available where "qualified immunity" denied).

We agree with the district court that the record in this case, without further elaboration, does not show that the defendants are entitled to "qualified immunity" as a matter of law. Consequently, we affirm the district court's decision.

I Background

The record shows the following undisputed facts:

1. In late 1986 Rhode Island police officers obtained an order permitting them to intercept telephone calls at the home of Richard Zanfanga, a suspected gambler.

2. The wiretaps revealed numerous calls from illegal bettors, including many such calls from a man named "Dennis."

3. In January 1987, after obtaining a search warrant, the police found gambling records, betting slips and a Rolodex-type address directory in Zanfanga's home.

4. The rolodex contained one, and only one, entry for a person called "Dennis," along with an address and phone number. The police found that the address and phone number were those of Dennis Ricci, the plaintiff.

5. Detective LaCross (a defendant) then telephoned Dennis Ricci and spoke to him for "less than 60 seconds." He made a tape of that conversation on a hand-held tape-recorder. He then compared this tape with earlier taped recordings of phone calls to Zanfanga by the bettor "Dennis." He concluded that the two voices were similar and that Ricci therefore made the incriminating calls.

6. Detective Scuncio (another defendant) then applied for an arrest warrant for Ricci. Scuncio filed an affidavit stating that the police had "intercepted" Ricci "conducting illegal gambling business" with Zanfanga.

7. After obtaining an arrest warrant, police officers arrested Ricci, took him to police headquarters, and detained him for a few hours. Ultimately, a state judge dismissed all charges pending against Ricci.

8. The police, in the ordinary course of business, re-used the tape of the LaCross/Ricci call for other purposes. Thus, the Ricci voice can no longer be recognized.

In their motion for summary judgment, defendants contend that, as a matter of law, these facts make out the defense of "qualified immunity." The district court disagreed, and, given the present state of the record, we must accept that determination.

II The Legal Issue

The legal standard that the defendants must meet to obtain "qualified immunity" protection is not demanding. Defendants are not required to show that they had "probable cause" to arrest the plaintiff. Rather, they must show only that they had "objectively reasonable" grounds for obtaining an arrest warrant--that a reasonably competent police officer could have believed that probable cause existed to arrest Ricci. Malley, 475 U.S. at 341, 106 S.Ct. at 1096 ("[Officers] will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue...."). The Supreme Court has pointed out that "even law enforcement officials who 'reasonably but mistakenly conclude that probable cause is present' are entitled to immunity." Hunter v. Bryant, --- U.S. ----, ----, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (per curiam) (quoting Anderson, 483 U.S. at 641, 107 S.Ct. at 3039). The standard "gives ample room for mistaken judgments." Malley, 475 U.S. at 343, 106 S.Ct. at 1097. And, it is met "so long as the presence of probable cause is at least arguable." Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir.1991); Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir.1985).

Despite the generosity of this standard, however, the defendant officers have yet to satisfy it. In effect, defendants point only to two facts, which, they say, offered them an objectively reasonable basis for believing that "probable cause" existed. The first is the fact that the police found a rolodex in Zanfanga's home with Dennis Ricci's name and address in it. It is not surprising, however, to find an address directory at a person's residence. Indeed, people often keep in their homes the names and addresses of friends, family, acquaintances, business associates, and others. The record evidence reveals nothing special about the rolodex at issue. It says nothing about whether the rolodex contained a high proportion of gamblers' names, nor does it say exactly where the police found the directory. Thus, we must assume, favorably to the plaintiff, simply that Zanfanga had a card in his home with the name and address of "Dennis Ricci." We do not see how such evidence alone could permit a reasonable belief that Dennis Ricci was the gambler "Dennis," for the name "Dennis" is not an unusual one. Cf. Tillman v. Coley, 886 F.2d 317 (11th Cir.1989) (agent's report of drug purchase from a 24 year-old named Mary Tillman, does not permit a sheriff to arrest a 42 year-old Mary Tillman who lived near the place where the agent bought drugs).

The second, and only other, piece of evidence is the fact that Detective LaCross made a tape of Dennis Ricci's voice and compared it with the voice of the gambler "Dennis." Contrary to plaintiff's argument on appeal, a voice comparison can provide a perfectly proper basis for establishing a person's identity. We recognize people by voice (including telephone voice), as well as by sight. Here, however, the record evidence tends to undercut the validity of the voice...