Rodriguez v. Ritchey, 75-1362

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation539 F.2d 394
Docket NumberNo. 75-1362,75-1362
PartiesMargaret S. RODRIGUEZ, Plaintiff-Appellant, v. Donald E. RITCHEY et al., Defendants-Appellees.
Decision Date22 September 1976

Robert W. Knight, Tampa, Fla., for plaintiff-appellant.

Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before COLEMAN, RONEY and TJOFLAT, Circuit Judges.

COLEMAN, Circuit Judge.

In this case we review a summary judgment entered in favor of defendants, six FBI agents sued for allegedly arresting the plaintiff-appellant in violation of the Fourth Amendment. On summary judgment, our first concern is whether there was any genuine issue of material fact, Rule 56(c), Federal Rules of Civil Procedure. Liability turns on the reasonable good faith of the officers for acts occurring during the investigation and arrest of the appellant.

We affirm the judgment of the District Court as to all appellees except Agent Arwine. We are of the opinion that reasonable men might well differ as to whether he acted in reasonable good faith and that as to him this issue should have gone to trial.

I. Facts

Viewed in the light most favorable to the appellant, Tabacalera Severiano Jorge v. Standard Cigar Company, 5 Cir. 1968, 392 F.2d 706, cert. denied, 393 U.S. 924, 89 S.Ct. 255, 21 L.Ed.2d 260 (1968), the facts are as follows.

During 1971 and 1972, an extensive federal investigation of alleged gambling activities was being conducted in central Florida. The primary target was one Henry Trafficante, but the investigation culminated in the indictment of fifty seven defendants, Trafficante included. Also named as a defendant was the appellant, Margaret S. Rodriguez, who turned out to be altogether innocent.

As part of the investigation, on September 30, 1971, Judge Joseph P. Lieb authorized the interception of telephone calls made to and from Tampa telephone number 238-2354. This wiretap was authorized pursuant to Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520. The telephone, located in a residence at 801 E. Jean Street, Tampa, was being used by suspect Frank Fraterrigo Vega. Judge Lieb also authorized the use of a pen register, a device to record telephone numbers called from the Vega phone. The wiretap began on October 1, 1971.

On October 5, 1971, at 9:47 a. m., Vega called 935-0024 but the pen register recorded "9" for "0" in the fourth digit, thus listing the number as 935-9024, an error, or malfunction, not discovered until much later. Vega spoke to a female called "Margo", about gambling activities. On the basis of this conversation, it appeared that Margo was a bookmaker, and at various points in the conversation reference was made to an individual named "Gene". Appellee John J. Batley, a special agent of the FBI, monitored and recorded the call.

"Margo" was a stranger to the investigators, and Special Agent Joseph A. Arwine was assigned to determine her identity. He was given a handwritten log, prepared by Batley, which showed the call had occurred at 9:47 a. m. on October 5, between Vega at 238-2354 and Arwine's subject at 935-9024. Arwine also received a ten page transcript of the conversation. The precise assignment given Arwine was: (1) to determine the identity of the unknown female suspect; (2) to determine her record with the Tampa police, the Hillsborough County sheriff, and the Greater Tampa Credit Bureau; and (3) to determine the suspect's make of car and her license number. Because of the ongoing investigation, Arwine was directed not to interview the subject.

Arwine's initial step was to peruse the 1971 edition of the Hill-Donnelly Criss Cross Telephone Directory for Tampa and the equivalent of the Tampa, Florida City Directory. He could not find telephone number 935-9024 in either volume, and correctly deduced that the number was unlisted. Consequently, Arwine contacted the General Telephone Company in Tampa and asked an employee of the Security Division to ascertain the subscriber to 935-9024. According to Arwine's affidavit, the security employee identified the subscriber to the unlisted number as the appellant, Margaret S. Rodriguez, 3420 Grace Street, Tampa. This was a gross error, apparently on the part of the telephone company employee. Telephone number 935-9024 was actually a pay telephone, unlisted because all pay telephones are unlisted. On the other hand, the appellant's telephone, 876-5646, is not unlisted; it is listed in the name of her home-conducted business, Margo's Beauty Salon. Furthermore, the number 876-5646 bears no resemblance to the number 935-9024.

Obviously, Arwine could not have more completely been led astray. He was given the wrong number to begin with and then received wholly inaccurate information by the telephone company.

The "information" which Arwine received from the telephone company was preserved in handwritten notes dated October 28, 1971. Arwine does not remember the name of the employee who supplied the information, and he did not obtain a copy of the company records for 935-9024. Arwine simply informed Special Agent James S. Kinne of his "discoveries".

Next, Arwine contacted the Tampa police, the Hillsborough sheriff, and the Tampa Credit Bureau. He learned that appellant did, in fact, live at 3420 Grace Street and had operated Margo's Beauty Salon for about sixteen years. Moreover, she had never been arrested by the local authorities.

On December 5, 1971, Arwine conferred with Detective Sergeant John Fairbanks of the Tampa police vice squad. Arwine asked whether Fairbanks had ever encountered a Margaret or Margo Rodriguez in his gambling investigations for the Tampa police, but he did not provide Fairbanks with the suspect's address, age, or physical description. Indeed, the conference took place in Ybor City, away from Fairbanks' office where he could have had access to his files. In response Fairbanks related that he had investigated a Margaret Rodriguez who had once owned a beauty parlor. No attempt was made by Arwine to see or copy the records of Fairbanks' earlier investigation. This was most unfortunate because the Margaret Rodriguez to whom Fairbanks referred was a totally unrelated individual who, at the time, was facing state criminal charges for gambling.

After this "corroboration", by Fairbanks, Arwine was satisfied he had correctly identified the unknown female telephone conversationalist. He reported his written findings to Special Agent Kinne on December 15, 1971. Kinne presented the evidence to a grand jury, which indicted the appellant and 56 others. Arrest warrants were issued the same day, February 1, 1972, but they were not served until March 3.

Two days later, February 3, Agent Kinne interviewed Gene Bennett, whom Kinne believed to be the "Gene" discussed in the Vega-"Margo" telephone conversation. Bennett confirmed that he was the subject of the conversation, but he denied knowing any bookmaker named Margo.

In the meantime, plans were laid for simultaneous execution of the arrest warrants on March 3, 1972. The volume of the arrests necessitated extra manpower, and among the agents ordered to report to Tampa to help with the arrests were special agents Donald E. Ritchey and Geral W. Sosbee. Neither had participated in the investigation; neither knew whom they would be arresting until they arrived in Tampa March 3. They were directed to arrest the appellant, which they did at 9:16 a. m. in appellant's home-beauty parlor, in the presence of her family and one of her customers.

Appellant was taken to the FBI office in Tampa, where she was questioned, photographed, and fingerprinted. At 10:25 a. m. she was turned over to a United States Marshall for processing and incarceration. Once again, she was questioned, photographed, and fingerprinted. Afterwards, she was presented to a United States Magistrate and was released on a surety bond at 2:00 p. m. Appellant remained under the surety bond throughout the time she was under indictment from February 1, 1972 to May 31, 1973. Twice during that time appellant appeared in court, for arraignment on May 11, 1972, and for an Omnibus hearing on October 2, 1972.

All of this, of course, was an inexcusable, indefensible turn of events.

On March 13, 1973, more than a year after appellant's arrest, Agent Kinne allowed her attorney to listen to the tape of the Vega-"Margo" telephone conversation. The attorney told Kinne that the voice on the tape was not that of the appellant. Consequently, Kinne reinterviewed Gene Bennett two days later. Bennett confirmed again that the conversation was about him, but said he knew no bookmaker named "Margo". The only "Margo" he knew, said Bennett, had worked in a convenience store on Armenia Avenue in Tampa. Subsequent checking by Kinne revealed that this "Margo" was Margaret Waltz, 2503 W. Custer, Tampa. Ms. Waltz' phone number was 935-0024; the number recorded by the pen register had been 935-9024.

On March 22, 1973, Kinne interviewed Ms. Waltz. After listening to the taped conversation, Ms. Waltz admitted she was the "Margo" whose conversation was on the tape, but she denied any illegal activity.

On March 27, 1973, the Assistant United States Attorney in Tampa requested dismissal of the indictment against the appellant. Actual dismissal followed on May 31, 1973.

On October 24, 1973, appellant initiated this suit by filing a complaint charging Agents Ritchey, Sosbee, and unknown agents with violating her Fourth Amendment rights. Ritchey and Sosbee responded with a motion for dismissal, claiming the complaint failed to state a claim on which relief could be granted and that they had official immunity. Alternatively, they asked for a summary judgment. The District Court denied the dismissal, saying federal police officers were not absolutely immune, but deferred ruling on the summary judgment.

Subsequently, the unknown...

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