Vivianne Jade Wash. v. Durand

• Decision Date: 07 February 2022
• Docket Number: No. 20-12148,20-12148
• Citation: 25 F.4th 891
• Parties: Vivianne Jade WASHINGTON, Plaintiff-Appellant, v. Investigator Jason Durand, in his individual capacity, Defendant, Investigator Hugh HOWARD, in his individual capacity, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

25 F.4th 891

Vivianne Jade WASHINGTON, Plaintiff-Appellant,

v. Investigator Jason Durand, in his individual capacity, Defendant,Investigator Hugh HOWARD, in his individual capacity, Defendant-Appellee.

No. 20-12148

United States Court of Appeals, Eleventh Circuit.

Filed: February 7, 2022

Jeffrey R. Filipovits, Spears & Filipovits, LLC, Decatur, GA, Jennifer Beth Hickey, Jennifer Beth Hickey Law Office, Lilburn, GA, for Plaintiff-Appellant.

Timothy Joseph Buckley, III, Taylor Wayne Hensel, Buckley Brown, PC, Atlanta, GA, for Defendant-Appellee.

Before William Pryor, Chief Judge, Lagoa, Circuit Judge, and Schlesinger,^* District Judge.

William Pryor, Chief Judge:

This appeal requires us to decide whether an officer must release a suspect detained pursuant to a valid arrest warrant when he learns of possibly exculpatory evidence. During an investigation of the murder of an elderly woman, Vivianne Washington was arrested pursuant to a warrant based on a tip from a confidential informant that she was involved in the crime and a positive photograph identification by a perpetrator who had already confessed. Shortly after the arrest, Officer Hugh Howard of the Meriwether County Sheriff's Office brought Washington in front of the perpetrator, who said, "[T]hat's not her." Howard continued to detain Washington for approximately twenty hours and then released her when the perpetrator confessed that he had lied about Washington. Washington sued Howard and alleged that Howard had an affirmative duty to return to the magistrate to inform him that the perpetrator had said, "[T]hat's not her," and that, by not doing so, Howard violated her right to be free from unreasonable seizures under the Fourth and Fourteenth Amendments because there was no longer probable cause to support her detention. See 42 U.S.C. § 1983. The district court granted summary judgment in favor of Howard based on qualified immunity. Washington cannot prove that Howard violated her constitutional rights for three reasons: probable cause persisted throughout her detention, Howard was entitled to rely on a facially valid and lawfully obtained warrant, and he did not take an affirmative action to continue the prosecution. Because each reason entitles Howard to qualified immunity, we affirm.

I. BACKGROUND

On August 4, 2016, four assailants invaded Dorothy Dow's home on her blueberry farm in Meriwether County, Georgia, attacked Dow, and set her on fire. Dow, an elderly woman, later died from her injuries. But before Dow passed away, she identified her assailants as "several black males and an African American female." Howard also received a tip from a farm employee suggesting that he interview Cortavious Heard and Justin Grady. Heard, a former farm employee, was on probation for another crime.

When Howard first contacted him, Heard denied all involvement in the crime and refused to speak with Howard. Later, the police conducted searches of Heard's person and residence, which were permitted by a Fourth Amendment waiver as a condition of his probation. The probation officer found marijuana in Heard's pocket and some of Dow's possessions in Heard's residence.

After his grandmother encouraged him to do the right thing, Heard confessed to his involvement in the home invasion. Howard arrested Heard, took him to the sheriff's office, and questioned him further about the home invasion. Heard identified Grady—already a person of interest—a "brown-skinned" female, and an unidentified black male as the perpetrators of the invasion and murder. He also said that he had been with his girlfriend, Mina Ellery, and her friend Angel Harmon earlier on the evening of the crime, but that neither was involved in the crime.

While Howard was interrogating Heard, Officer Victor McPhie, a narcotics officer in the city of Newnan, called Officer Chris Warden, a narcotics officer in the Meriwether County Sheriff's Office. McPhie told Warden about a tip received from one of his confidential informants who identified Washington as someone the informant had "heard [ ] was involved in this." The informant also provided McPhie with a photograph of Washington, which McPhie sent to Warden.

Warden interrupted Howard's interrogation of Heard, told Howard of the tip, and showed Howard the photo. Howard then showed the photo to Heard. Heard positively identified the woman in the photo as the woman who was involved in the invasion and said that the black hat that she was wearing in the photo was the same hat that she had worn during the crime.

Howard then spoke to McPhie to gain more information about the woman in the photograph. Based on the information from the confidential informant, McPhie told the officer Washington's name, that she worked at a pizza place in Newnan, and that she had gone to school with Harmon and Ellery—the two women who were with Heard on the night of the crime. McPhie did not disclose the identity of his confidential informant but represented to Howard that he was a reliable informant whose assistance had been documented and that McPhie had personally used him as a source many times. Washington asserts that there is no evidence that McPhie told Howard this information, but she provides no evidence that contradicts Howard's deposition testimony that McPhie did so.

Then, in coordination with Howard, Officer Jason Durand procured an arrest warrant for Washington. McPhie executed the warrant and arrested Washington at work at 4:45 p.m. An officer then transported Washington to the Meriwether County Sheriff's Office.

The district court and parties disagree about what took place next. At summary judgment, we view all evidence in the light most favorable to and draw all reasonable inferences in favor of the non-moving party, which in this appeal is Washington. See Williams v. Aguirre , 965 F.3d 1147, 1156 (11th Cir. 2020). We set forth each account below.

First , Washington's account: While Washington was still in her street clothes and before she was booked, Howard informed Washington of her rights. See Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Washington invoked her right to counsel before any substantive questioning took place. Howard then took her to be booked. After she was booked and placed in an isolation cell, she told others that she wanted to speak to Howard. Washington signed a waiver of her right to remain silent, and Howard proceeded with the interrogation.

Washington denied knowing Grady and Heard when Howard showed her their photographs. She offered alibi witnesses, asked to have her clothes tested, offered to give Howard access to her phone and its location data, consented to a DNA swab, and continually denied involvement. Howard then returned her to her cell.

On their way to her cell, Washington and Howard passed the cell in which Heard was housed. Howard then asked Heard if Washington was the girl involved in the crime, to which Heard responded, "[T]hat's not her." This statement contradicted his earlier photo identification of Washington as a co-conspirator and perpetrator of the crime. Washington later consented to a polygraph examination, which Howard had suggested to her in the previous interview.

Second , Howard's account: Before Washington was booked and while she was still in her street clothes, Howard interviewed Washington but did not "uncover any incriminating information." Howard then intentionally took Washington by Heard on the way to booking, who spontaneously said, "That is her. That is the b*tch I told you about. That is her." At some point before Washington was fully booked, Howard offered her the opportunity to take a polygraph test. Shortly after being booked, Howard interviewed Washington again and showed Washington photographs of Heard and Grady. Washington admitted she knew the suspects. At some time after this interview, Washington requested the polygraph test.

Third , the district court's account: Washington was immediately booked, and within an hour of booking, she was interviewed by Howard. In this first interview, Howard showed Washington photographs of Heard and others who were believed to be involved. Washington denied knowing Heard but admitted that she knew the other people whose photographs she was shown. She ended the interview by requesting to speak with a lawyer. Washington then requested to speak with Howard and recanted her previous statements. She told Howard that she had lied in the first interview and denied all involvement in the crime. After the two interviews, Howard walked Washington by Heard's cell. The district court credited Washington's testimony that Heard retracted his previous identification. Due to the inconsistent statements about whether Washington knew other suspected perpetrators, Howard arranged for Washington to take a polygraph test.

On appeal, Howard argues that the district court correctly recounted the relevant facts. But the sequence of events recounted in his own Statement of the Facts contradicts his argument on this point. Washington did state in her deposition that at some time while in detention she admitted to knowing or being related to the suspects. But before the district court and on appeal, she argues that we should disregard that statement because it was equivocal, she was confused about the exact sequence of events, and the statement is not consistent with the video-recorded evidence. In Howard's deposition, he did not mention Washington's alleged admission, and his testimony instead implies that she did not admit to knowing the other suspected perpetrators. But in the argument section of his brief on appeal, Howard adopts the conclusion of the district court that the admission happened and that it happened before Heard's alleged retraction.

We need not decide whether or when Washington's purported admission occurred because the evidence, including Howard's and Washington's depositions, establishes that the confrontation with Heard happened before booking and before...