Warren v. City of Lincoln, Neb.

• Decision Date: 04 January 1989
• Docket Number: No. 86-1434,86-1434
• Citation: 864 F.2d 1436
• Parties: Jackson WARREN, Appellant, v. CITY OF LINCOLN, NEBRASKA; James Breen; Sandra L. Myers and David M. Beggs, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1436

864 F.2d 1436

Jackson WARREN, Appellant, v.CITY OF LINCOLN, NEBRASKA; James Breen; Sandra L. Myers and David M. Beggs, Appellees.

No. 86-1434.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 15, 1987.

Decided Jan. 4, 1989.

Dorothy Walker, Lincoln, Neb., for appellant.

Richard D. Sievers, Lincoln, Neb., for appellees.

Before LAY, Chief Judge, HEANEY, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, and MAGILL, Circuit Judges, en banc.

WOLLMAN, Circuit Judge.

Jackson Warren filed this suit under 42 U.S.C. Sec. 1983(1982) against the City of Lincoln, Nebraska (the City), and three Lincoln police officers.At the close of Warren's case-in-chief, the district court¹ dismissed the action as against Officer Sandra L. Myers and the City.Upon the conclusion of the trial, the jury returned a verdict in favor of the remaining defendants, Officers James Breen and David Beggs.After hearing the case en banc, ²we affirm.

I.

At approximately 4:30 a.m. on April 13, 1985, Lincoln police officers responded to a call from a man who claimed someone had just attempted to break into his apartment through a second story window.The man described the intruder, who had fled the scene on foot toward the east, as a slender white male in his early twenties wearing a white short-sleeved shirt.One of the officers who responded to the call was teamed with a police dog, which tracked the intruder's scent east from the crime scene to Jackson Warren's parked car four and one-half blocks away.Warren is a slender white male who at the time of the incident was nineteen years old and wearing a light-colored short-sleeved shirt.As the police approached the car, Warren started his engine and attempted to drive away.

A police officer flagged Warren down and told him to park his car.Officer Myers then approached Warren in his car and asked for some identification.She briefly questioned Warren and then ran a check on Warren's license from her squad car.She discovered an outstanding warrant for Warren's arrest for failure to appear on a traffic violation.Myers arrested Warren on the failure-to-appear warrant, performed a pat-down search, and put him in her squad car.

Myers took Warren to the Lincoln jail complex and turned him over to Detective Breen at approximately 5:00 a.m. Breen had been investigating a series of burglaries and sexual assaults that had some similarities to the April 13 attempted burglary.Breen questioned Warren on his background and on his whereabouts earlier that day, telling Warren that he was questioning him in connection with recent prowling incidents.At one point during the questioning Detective Beggs entered the room and examined Warren's hands and shoes, looking for trace evidence.Breen denied Warren's requests to see an attorney and neither Breen nor any other Lincoln police officer read Warren his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

After the questioning, Breen took Warren to the police station for fingerprints and photographs.Beggs, who had dusted for fingerprints at the scene of the attempted burglary, took numerous prints of Warren's fingers and palms.Beggs also took three mug shots and three instant camera photos of Warren.Breen then returned Warren to the jail.Warren called two friends, seeking money in order to post bond on the failure-to-appear warrant.After waiting for a friend to arrive with the money and for completion of his release forms, Warren left the jail at 7:10 a.m.

Warren's complaint alleged that the police officers, pursuant to Lincoln police department policy, violated his constitutional rights in contravention of the fourth, fifth, sixth, and fourteenth amendments by falsely imprisoning him, denying him access to counsel, subjecting him to harassing interrogation, fingerprinting him, and photographing him.

After the district court dismissed the City and Officer Myers from the suit, the jury returned verdicts in favor of Detectives Breen and Beggs.Warren appealed.The panel opinion held that the district court committed error by failing to instruct the jury on pretextual arrest, that the jury instructions on post-arrest detention and qualified immunity were erroneous, and that the district court improperly dismissed Myers and the City.We conclude that Warren's detention was lawful because probable cause existed to arrest him for attempted burglary.We also conclude that Warren's other grounds for recovery are without merit.

II.

Warren's primary argument is that his detention was in violation of rights guaranteed him under the fourth amendment, made applicable to the states through the fourteenth amendment.We therefore must first ascertain into which of the three categories of police-citizen encounters the encounter between Warren and the officers falls, seeUnited States v. Poitier, 818 F.2d 679, 681-82(8th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 700, 98 L.Ed.2d 651(1988), for each category justifies a different level of detention.

The first category consists of consensual communications between officers and citizens, involving no coercion or restraint of liberty.Such encounters do not constitute seizures and thus are beyond the scope of the fourth amendment.SeeFlorida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229(1983).The second category is the so-called Terry stop, seeTerry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889(1968);Florida v. Royer, 460 U.S. at 498-99, 103 S.Ct at 1324-25, pursuant to which an officer having a reasonable suspicion that a person has committed or is about to commit a crime may temporarily seize the person for limited investigative purposes.Finally, there are full-scale arrests, which must be supported by probable cause.Poitier, 818 F.2d at 682.

All agree that the officers' reasonable suspicion of Warren's involvement in the attempted burglary justified the initial stop.The officers argue that Warren's arrest was based on the discovery of the valid arrest warrant, and that the detention at the station was supported by that warrant, as well as their reasonable suspicion of his involvement in the attempted burglary.On rehearing en banc, however, they add the argument that the officers also had objective probable cause to arrest Warren for attempted burglary, and that the detention thus was permissible as incident to a valid arrest.

"As a general rule, we do not consider arguments or theories on appeal that were not advanced in the proceedings below."Wright v. Newman, 735 F.2d 1073, 1076(8th Cir.1984)(citations omitted).The pertinent record with respect to the facts and circumstances surrounding Warren's arrest, however, is fully developed in this case, and those facts and circumstances are uncontroverted.When the issue of probable cause arises in a damage suit and "the facts are not disputed or are susceptible to only one reasonable inference, the question is one of law for the court."Linn v. Garcia, 531 F.2d 855, 861(8th Cir.1976)(citations omitted);see alsoGramenos v. Jewel Cos., 797 F.2d 432, 438-39(7th Cir.1986), cert. denied, 481 U.S. 1028, 107 S.Ct. 1952, 95 L.Ed.2d 525(1987);Garris v. Rowland, 678 F.2d 1264, 1270(5th Cir.), cert. denied, 459 U.S. 864, 103 S.Ct. 143, 74 L.Ed.2d 121(1982).Under such circumstances, the general rule against considering new arguments on appeal has less appeal.SeeWright v. Newman, 735 F.2d at 1076.We therefore opt to exercise our discretion in favor of reaching the probable cause issue.SeeSingleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 2877-78, 49 L.Ed.2d 826(1976).

A.

Officer Myers and Detective Breen testified that they believed they lacked probable cause to arrest Warren for the attempted burglary.Such testimony, however, does not end the inquiry, for it is well-settled "that '[t]he test of probable cause is not the articulation of the policeman's subjective theory but the objective view of the facts.' "United States v. O'Connell, 841 F.2d 1408, 1419(8th Cir.)(quotingWhite v. United States, 448 F.2d 250, 254(8th Cir.1971), cert. denied, 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798(1972)), cert. denied, --- U.S. ----, 108 S.Ct. 2857, 101 L.Ed.2d 893(1988).

In Royer, the defendant sought to suppress evidence on the ground that he was being illegally detained when he consented to a search.The Supreme Court noted that "the fact that the officers did not believe there was probable cause and proceeded on a consensual or Terry-stop rationale would not foreclose the State from justifying Royer's custody by proving probable cause * * *."Id.460 U.S. at 507, 103 S.Ct. at 1329(citing Peters v. New York, decided with Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917(1968)).A panel of this court enunciated this principle in Klingler v. United States, 409 F.2d 299(8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110(1969).

Because probable cause for an arrest is determined by objective facts, it is immaterial that [the officer], at the hearing on the motion to suppress, testified that he did not think that he had "enough facts" upon which to arrest [the suspect] for armed robbery.His subjective opinion is not material.

Id. at 304(citations omitted);see alsoUnited States v. Salinas-Calderon, 728 F.2d 1298, 1301(10th Cir.1984)("[S]ince courts have never hesitated to overrule an officer's determination that he had probable cause to arrest, consistency suggests a court may also find probable cause despite an officer's judgment that he did not have probable cause to arrest.");United States v. Lester, 647 F.2d 869, 873(8th Cir.1981)("the validity of the arrest should be judged by whether the arresting officers actually had probable cause for the arrest, rather than by whether the officers gave the arrested person the right reason for the arrest").Thus, although the officers...