Opinion
C. A. 3:21-3649-JFA-SVH
06-08-2023
Bryant Braxton, Plaintiff, v. Leon Lott, in his representative capacity for the Office of the Richland County Sheriff, and Mike Wenzell, Jason Cuzzupe, and D. McRoberts, in their individual capacities, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
On January 15, 2020, a person ran from 532 Atterbury Drive, South Carolina (“532 Atterbury”) carrying a bookbag with drugs and a weapon. Richland County Sheriff's Department (“RCSD”) officers unsuccessfully attempted pursuit, but the person escaped. Thereafter, Bryant Braxton (“Plaintiff”) was arrested for the January 15, 2020 crime and has brought the instant suit against the RCSD and select RCSD employees Mike Wenzel (“Wenzel”), Jason Cuzzupe (“Cuzzupe”), and D. McRoberts (“McRoberts”) (collectively, “Defendants”), alleging he was arrested without probable cause.
Defendant Mike Wenzel has been improperly identified as “Mike Wenzell.” [See, e.g., ECF No. 52-4, ECF No. 52-9]. The undersigned employs the correct spelling and directs the Clerk of Court to correct the caption.
Plaintiff, proceeding with counsel, filed the instant case in the Richland County Court of Common Pleas, asserting state law claims of false arrest, battery, negligence, abuse of process, and malicious prosecution pursuant to the South Carolina Tort Claims Act, as well as a claim brought pursuant to 42 U.S.C. § 1983 for violation of his Fourth Amendment rights for arresting and prosecuting him without probable cause. Defendants removed the case on November 5, 2021. [See ECF No. 1].
This matter is before the court on Defendants' motion for summary judgment. [ECF No. 52]. The motion having been fully briefed [ECF Nos. 62, 67], it is ripe for disposition. All pretrial proceedings in this case were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.). Because the summary judgment motion is dispositive, this report and recommendation is entered for review by the district judge. For the following reasons, the undersigned recommends granting in part and denying in part Defendants' motion for summary judgment.
I. Factual Background
The crux of this case concerns whether Plaintiff's January 23, 2020 arrest was supported by probable cause.
A. Defendants' Prior Knowledge of Plaintiff
In the fall of 2018, Wenzel and Cuzzupe had a conversation about Plaintiff. [ECF No. 62-6 at 32:18-37:18, 47:2-49:19]. Wenzel informed Cuzzupe, who had been assigned to the Meadow Lakes area where Plaintiff lived, that he had a 2018 warrant concerning Plaintiff allegedly having received stolen goods. See id. It appears that Wenzel may have also informed Cuzzupe that Plaintiff had been served with the warrant, been arrested, and the charges had been dismissed. [ECF No. 62-6 at 32:18-37:18, 47:2-49:19, see also ECF No. 52-9 at 21:3-13].
Cuzzupe is on the relevant case file concerning Plaintiff's January 23, 2020 arrest, wrote out the relevant arrest warrants, and testified before the grand jury concerning Plaintiff's arrest. [ECF No. 62-7 at 18:9-22].
Cuzzupe also informed Wenzel that there had been some drug complaints in Meadow Lakes, but Wenzel had no information as to Plaintiff's involvement in drugs. [ECF No. 62-6 at 32:18-37:18, 47:2-49:19]. Cuzzupe additionally testified about a year prior to the instant events that he had heard Plaintiff “may be living” at 532 Atterbury, had gone to 532 Atterbury with a warrant for Plaintiff, contacted Plaintiff's brother there, and was informed that Plaintiff was not there. [ECF No. 52-8 at 33:18-35:1, see also ECF No. 62-13 at 17:11:55-17:12:05 (entitled Cuzzupe taking Braxton to jail)].
B. January 15, 2020 Incident
On January 15, 2020, following receipt of complaints about 532 Atterbury, numerous RCSD officers, including Cuzzupe and McRoberts, went to the location for a knock-and-talk. Cuzzupe testified that on this day, he was not “aware or . . . looking for Bryant Braxton when [he] went there,” Plaintiff had not been discussed and his name had not been brought up beforehand, and Cuzzupe “didn't know what [he was] going to find at 532 Atterbury ....” [ECF No. 52-8 at 35:14-25, ECF No. 62-7 at 36:1-3].
Likewise, McRoberts testified that prior to that day, he had never “dealt with” 532 Atterbury, nor did he have any prior knowledge of Plaintiff. [ECF No. 62-5 at 7:20-25, 25:3-15]. McRoberts also testified that it was either Cuzzupe or Wenzel who originally brought up Plaintiff's name, that McRoberts didn't “know the story” of Plaintiff's association with 532 Atterbury, and did not know who lived at 532 Atterbury. Id. at 25:2-6, 28:6-17.
Wenzel also testified that he had no information that he could recall, prior to the day in question, connecting Plaintiff with 532 Atterbury. [ECF No. 62-6 at 47:2-6]. Wenzel further testified that, during the relevant time period, he did not suggest that it was Plaintiff or his brother who ran from 532 Atterbury and further denied suggesting to Cuzzupe that it was Plaintiff who ran from 532 Atterbury. Id. at 49:20-24, 58:1-4.
Joe Lewis White (“White”), however, included in his officer statement that, prior to Cuzzupe's knocking on the door, a “pre briefing” was conducted in which he “learned that the subject in question was named Bryant Braxton.” [ECF No. 62-2]. Cuzzupe testified he conducted a pre-briefing, but did not recall Plaintiff's name having been mentioned. [ECF No. 62-7 at 42:4-14, 66:11-18].
The knock-and-talk and the events that occurred immediately thereafter are well-documented. As evidenced by the officers' statements, Cuzzupe approached the front door of 532 Atterbury, knocked, and announced he was RCSD. [ECF No. 52-2]. McRoberts and others moved around the side of the house, and McRoberts then witnessed a person fleeing the house from the back door, eventually jumping over the backyard fence. See id.
More specifically, McRoberts testified that he saw a person run out of the back of the house carrying a book bag and that the person “was looking back running” and that “[h]e'd look back and run and at one point he stared right at me.” [ECF No. 62-5 at 14:1-15]. McRoberts could not recall the distance between him and the person running, but recalled that the person was not zigzagging, but was running “straight to the back of the fence,” that he looked back several times, and that McRoberts had “[s]everal minutes” to view him running. Id. at 15:2-17:19.
Body camera evidence from one of the officers involved shows him and other officers walking up to the property and someone can be heard saying “Hey Buddy, how are you doing, hey drop it, drop it, drop it.” [See ECF No. 6213 at 18:09:31-18:09:41 (entitled Tapler BWC)]. From the moment the voice first starts speaking to the point that the fleeing person is seen jumping the fence in the video, roughly eight seconds elapse. See id.
There is no body-cam evidence from McRoberts during this period because he “just failed to turn it on.” [ECF No. 62-5 at 22:3].
The officers' statements indicate that the person running was “a black male, approximately 5'8-5'10, heavier set with no shirt on and teal shorts that had a black back pack running out of the back door and jumped over the fence in the backyard.” [ECF No. 52-2, see also ECF No. 52-3 (McRoberts' statement stating he “observed a black male about 5'8 to 5'10 running from the back of the house and he was carrying a black/grayish book sack .... The subject had on teal colored shorts, no shirt.”), ECF No. 62-12 at 8-9].
The book bag, dropped by the fleeing person, contained four large bags of marijuana and a small pistol. [See, e.g., ECF No. 52-3].
Wenzel, who was in the area, went to assist, was contacted by Cuzzupe or otherwise spoke with Cuzzupe, and provided an image via text of both Plaintiff and his brother:
On January 15, 2020, I heard deputies setting up a perimeter after a suspect fled from a residence in Meadow lakes. I was nearby and responded to the area to assist with the perimeter along Interstate 20 near North Main Street. I learned that CAT Deputy Cuzzupe, Captain McRoberts, and other deputies had attempted to contact the residents at an address on Atterbury Drive. At some point in the incident, I spoke with CAT Deputy Cuzzupe. I had spoken with CAT Deputy Cuzzupe via telephone about Bryant Braxton before. I believe that it was after CAT Deputy Cuzzupe had started investigating the drug complaint and he was looking for some information about Bryant Braxton. I may have also spoken with CAT Deputy Cuzzupe previously when I had an arrest warrant for Bryant Braxton from case number 1805009917. I provided CAT
Deputy Cuzzupe with an image from the ASGDC of Michael Braxton (Bryant Braxton's brother) and Bryant Braxton ....[ECF No. 52-4 (minor spelling alterations included), see also ECF No. 62-6 at 58:1-8 (Wenzel confirming that he sent the picture to ask “is this the person”)].
During this time, McRoberts turned on his BWC and walked in the woods behind 532 Atterbury looking for the suspect, when he received a call from Cuzzupe, who advised, “Hey Cap. I just spoke with Investigator Wenzel. We believe it's going to be this guy that he got this time last year.” [See ECF No. 62-13 at 18:52:10-18:52:36 (entitled McRoberts BWC in woods)]. McRoberts asks, “What's that subject's name,” and although Cuzzupe response is not clear, he does not reply with a name at this time, and someone, it does not appear to be McRoberts, then states “Hey . . . can send me a picture of him.” Id. While still in the woods, a backpack containing marijuana and a gun is located by another officer. The backpack is identified by McRoberts as the one that was carried by the person that ran from the house. [ECF No. 62-5 at 38:216].
Cuzzupe's officer statement concerning the incident, completed August 27, 2020, states “[t]he subject Bryant Braxton is known to frequent 532 Atterbury Dr. as previous reports have put that subject at that location.” [ECF No. 52-2]. When asked about this comment in his deposition, Cuzzupe testified the “previous reports” referred to his attempt to find Plaintiff roughly a year prior. [ECF No. 62-7 at 63:1-21].
Thereafter, McRoberts and Cuzzupe returned to 532 Atterbury and reactivated their cameras. McRoberts explains to another person on the phone as follows: “This is going to be a guy, hold on I'll tell you who it is, cause I'm, Wenzel locked him up. A guy named Brant Braxton .... I see him. I ID him.”[ECF No. 62:13 at 19:26:40-19:27:05 (entitled McRoberts BWC while on back deck)]. Cuzzupe thereafter asks McRoberts, “You, uh, you did see Bryant though, correct? Run from it?” [ECF No. 62:13 at 19:33:40-19:33:50 (entitled Cuzzupe BWC while on back deck)]. McRoberts replied, “Yes, that was him.” See id.
McRoberts testified as follows as to how he identified Plaintiff:
Q: All right. And how did you make your identification that the person you saw running was Bryant Braxton?
A: According to my notes, it was from a text message picture . . . . And I'm not sure it if was sent to me or it was sent to Cuzzupe and he showed it to me, but at one point I viewed a picture.
Q: Okay. And were you able to identify that the person you saw running away was actually the person in that picture?
A: It looked like the guy that I saw, and it took-to me, that was the guy that I saw .... The height, the weight, the age, everything matched .... his facial hair, everything.[ECF No. 62-5 at 25:16-26:9, see also ECF No. 52-10 at 38:20-22 (McRoberts testifying “[i]f they would have sent me the picture without the name, I would have-I would have said that's the guy that I saw”); ECF No. 52-3 at 3 (McRoberts' officer statement, dated August 28, 2020, in which McRoberts attests “Wenzel texted a picture of Braxton it appeared to be the same guy I saw running from the back of the house”)].
The parties do not dispute that the photo seen by McRoberts was Plaintiff's booking photo, which included a description of Plaintiff's height, weight, and age. [see ECF No. 62-5 at 26:1-9, ECF 62-16, see also, e.g., ECF No. 52-1 at 4, ECF No. 52-2]. Although Defendants have not submitted the booking photo, Plaintiff has, and Defendants have not objected to this submission. [ECF No. 62-16, see also ECF No. 62 at 6]. In addition to other information, this photo lists Plaintiff's address as 544 Sedgewood Drive, located two blocks from 532 Atterbury. See id.
C. RCSD Investigation
RCSD officers secured a warrant to search 532 Atterbury. Cuzzupe testified that male clothes were found at the address, but he did not know if they were Plaintiff's size or if anything was found at the home indicating a connection with Plaintiff. [ECF No. 62-7 at 54:14-55:25]. Chastity Hammond (“Hammond”) was identified as the resident at 532 Atterbury. Id. at 56:1-9.
After the January 15, 2020 incident, but prior to Plaintiff's arrest, Cuzzupe and other officers went to Plaintiff's mother's house, and Plaintiff informed Cuzzupe that he was at work on the day in question and could not have been the person they were looking for, providing Cuzzupe with his work address and employer's phone number, among other information. [See ECF No. 62-8]. Thereafter, Plaintiff numerous times contacted various RCSD officers, including Cuzzupe, to inform them that he was working on January 15, 2020, and he was not the person they were looking for. [See ECF No. 62-8 (Plaintiff's testimony); see also ECF No. 52-2 (Cuzzupe's statement saying he and Plaintiff had numerous interactions during this time); ECF No. 62-12 at 10-11].
Plaintiff has also submitted a letter from his employer stating he was at work on January 15, 2020. [See ECF No. 62-1]. Defendants object to the admissibility of this evidence. [See ECF No. 67 at 7 n.9]. Because the court does not rely on this evidence to resolve Defendants' motion for summary judgment, the court need not address this dispute.
On January 16, 2020, McRoberts contacted Hammond, who informed him she lived there with her two children, no adult male stayed at her house, no one had permission to be at her house on January 15, 2020, and the marijuana found inside the house was hers. [ECF No. 52-3, see also ECF No. 62-12 at 10].
D. Plaintiff's Arrest
On January 22, 2020, Cuzzupe provided a statement in support of arrest warrants for Plaintiff for the unlawful carrying of a pistol and possession with the intent to distribute marijuana. [ECF No. 62-3]. On the same day, a latent print analysis was conducted on the evidence recovered from the January 15, 2020 scene, providing a negative result as to Plaintiff. [ECF No. 62-15].
Plaintiff was arrested on January 23, 2020, at his place of work. [ECF No. 62-3, ECF No. 62-8 at 98:2-20, ECF No. 62-7 at 75:1-11]. Plaintiff was indicted by a grand jury on February 12, 2020 [ECF No. 62-3], but the charges were dismissed on December 10, 2020. [ECF No. 62-10].
On September 9, 2020, a DNA analysis was conducted on the gun and the bags of marijuana, excluding Plaintiff as a DNA contributor. [See ECF No. 6214].
E. RCSD Policies
Plaintiff has also submitted evidence about the RCSD's policies concerning eyewitness identifications:
F. Police Limitations Pertaining to Eyewitness Identifications: Eyewitness identifications generally do not provide reliable evidence during criminal investigations. Consequently, the Supreme Court has addressed this issue in numerous cases and set forth guidelines to be followed when eyewitness identifications are solicited by officers. Eyewitness identifications may take the following form:
1. On-Scene Investigation: One-on-one identifications have been constitutional so long as the period of time between the offense and the identification is reasonable.
2. Line-Ups: Line-ups should be conducted using a minimum of six persons who have physical characteristics similar to the suspect. The accused has the right to have an attorney present during the line-up, and the line-up may not take place until the attorney is present. The attorney may not offer any suggestions during the conduct of the line-up but he may observe. All line-ups must be documented by the department as to date, time, place, name of participants and witnesses and location of suspects participants.
3. Photo Line-Ups: In conducting photo line-ups, the photos must depict persons displaying similar physical characteristics as the suspect. Simply showing an eyewitness a single photo of the suspect has been ruled
unconstitutional. As a general rule, a photo line-up containing six photos is reasonable. Photographs shown to witnesses will not contain any identifying information. Photo line-ups will be documented.[ECF No. 62-11].
II. Discussion
A. Standard on Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non- moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
B. Analysis
As a preliminary matter, the undersigned recommends dismissal of all of Plaintiff's state-law claims, his first through fifth causes of action, as he has voluntarily withdrawn them. [See ECF No. 62 at 2-3]. The court addresses Plaintiff's sole remaining claim, his sixth cause of action, brought pursuant to 42 U.S.C. §1983 for an unreasonable seizure in violation of the Fourth Amendment. See id.
A civil action brought pursuant to 42 U.S.C. § 1983 provides a means to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States, but the statute is not, itself, a source of substantive rights. Albright v. Oliver, 510 U.S. 266, 271 (1994). “Section 1983 imposes liability on any person who, under the color of state law, deprives another person ‘of any rights, privileges, or immunities secured by the Constitution and laws.'” Doe v. Kidd, 501 F.3d 348, 355 (4th Cir. 2007) (citing 42 U.S.C. § 1983). “Under 42 U.S.C. § 1983, a plaintiff must establish three elements to state a cause of action: (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law.” Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997). Only the first element is in dispute in this case.
“‘Allegations that an arrest made pursuant to a warrant was not supported by probable cause' . . . are considered a § 1983 malicious prosecution claim.” Humbert v. Mayor & City Council of Baltimore City, 866 F.3d 546, 555 (4th Cir. 2017) (citing Brooks v. City of Winston-Salem, 85 F.3d 178, 182 (4th Cir. 1996)); see also Thompson v. Clark, 142 S.Ct. 1332, 1337 (2022). “‘A malicious prosecution claim under § 1983 is properly understood as a Fourth Amendment claim for unreasonable seizure which incorporates certain elements of the common law tort.'” Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (citing Lambert v. Williams, 223 F.3d 257, 261 (4th Cir. 2000)). To state a constitutional claim for malicious prosecution, “a plaintiff must allege that the defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff's favor.” Id. (citing Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012)). Only the second element is dispute in this case.
“The Fourth Amendment states unambiguously that ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'” Groh v. Ramirez, 540 U.S. 551, 557 (2004) (emphasis in original) (citing U.S. Const. amend. IV). “The Fourth Amendment prohibits law enforcement officers from making unreasonable seizures, and seizure of an individual effected without probable cause is unreasonable.” Brooks, 85 F.3d at 183.
To prove a seizure was unreasonable because it followed from a deficient warrant, a plaintiff is required to prove defendants deliberately or with a “reckless disregard for the truth” made material false statements in the affidavit, Franks v. Delaware, 438 U.S. 154, 171 (1978), “or omitted from that affidavit ‘material facts with the intent to make, or with reckless disregard of whether [she] thereby made, the affidavit misleading.'” Miller v. Prince George's County, MD, 475 F.3d 621, 627 (4th Cir. 2007) (citing United States v. Coakley, 899 F.2d 297, 300 (4th Cir. 1990)). “[I]n order to violate the Constitution, the false statements or omissions must be ‘material,' that is, ‘necessary to the [neutral and disinterested magistrate's] finding of probable cause.” Id. at 628 (citing Franks, 438 U.S. at 155-56). “Reckless disregard can be evidenced” if the officer “entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported,” Humbert, 866 F.3d at 556 (citations omitted), or “failed to inform the judicial officer of facts he knew would negate probable cause,” Miller, 475 F.3d at 627 (citations and alterations omitted).
Additionally, under the qualified immunity defense, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity ensures that “[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Whether an officer is entitled to qualified immunity is a question of law for the court and, when there are no relevant disputed material facts, a court should rule on the qualified immunity issue at the summary judgment stage. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005) (“Ordinarily, the question of qualified immunity should be decided at the summary judgment stage.”).
To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case at hand. Id.
Here, based on the totality of the circumstances, a reasonable jury could find the relevant officers lacked probable cause to arrest Plaintiff on January 23, 2020.
Turning to the warrants at issue, on January 22, 2020, Cuzzupe swore to the following in support of arrest warrants for the unlawful carrying of a pistol and possession with the intent to distribute marijuana:
That on or about 15 January 2020 while at 532 Atterbury Drive in the Uppertownship Magisterial District of Richland County, it is believed that the defendant did commit the crime of PWID Marijuana because the defendant willingly and knowingly had in his possession a gray backpack containing approximately 4 pounds of a green plant like material believed to be marijuana, and a black and green Sig Sauer Model P238 serial number: 52B 177954. The defendant was observed by law enforcement fleeing the residence with the gray backpack after deputies attempted a knock and talk at the defendant's residence for narcotics activity. The backpack was located in the area in which K9 attempted to track the defendant with negative results. The bag was also located in the area in which citizens called 911 dispatch reporting to seeing a suspicious person during the active search for the defendant Affiant and others are witness to prove same.[ECF No. 62-3]. Cuzzupe listed Plaintiff's address as 532 Atterbury. See id. Review of these warrants show that probable cause for arresting Plaintiff was based on two facts: (1) his address or residence at 532 Atterbury and (2) McRoberts' eyewitness identification of Plaintiff.
As to the former, Cuzzupe testified as follows concerning listing this address for Plaintiff as his residence:
Q: You put his address on the warrant as 532 Atterbury, and I'm curious as how do you know that he lived at-what evidence do you have, any evidence, that he lived at 532 Atterbury?
A: I don't recall exactly how we-why we put that for his address there specifically.
Q: Well, you did. You put it at his address, that that's where he lives .... And my question is that a true statement or is that a false statement?
A: It's a true statement for the information that I had at the time I'm not sure exactly the reasoning. There are times where we put addresses for people that might show different in their DMV. It just depends on the circumstance ....
Q: Did you-so is it fair to say you did no investigation to determine who lived at 532 Atterbury prior to going there? ....
A: Yes.[ECF No. 62-7 at 27:17-28:9, 28:23-29:2]. Additionally, both Plaintiff's booking photo, shown to McRoberts, and the incident report completed by Cuzzupe, list Plaintiff's address as 544 Sedgewood Drive, not 532 Atterbury. [ECF No. 6212 at 4, ECF No. 62-16]. Finally, Cuzzupe testified that no physical evidence was recovered from 532 Atterbury indicating Plaintiff had been there, much less resided there.
Although Cuzzupe testified he had heard rumors in the past that Plaintiff resided at 532 Atterbury and had once talked to Plaintiff's brother at that address, the record evidence taken in light most favorable to Plaintiff indicates that Cuzzupe listed the 532 Atterbury address and identified this address as Plaintiff's residence with reckless disregard for the truth.
Defendants disagree, invoking the collective knowledge doctrine, and arguing in part as follows:
The record is uncontroverted that, in the months and/or years leading up to the relevant events, Plaintiff was (1) associated and or connected to 532 Atterbury in the Meadowlakes neighborhood; that (2) Plaintiff would purposely lie and give false information to RCSD deputies about his identity and also (3) known or believed to have jumped the back fence of 532 Atterbury in an effort to avoid detention or capture by RCSD deputies.[ECF No. 67 at 4 and n.6]. As to Defendants' first point, Cuzzupe's limited knowledge of Plaintiff's association with 532 Atterbury is addressed above. As to the two remaining assertions, Defendants are referencing evidence in the record of an interaction Plaintiff had with RCSD officers in July 2018 at 532 Atterbury. [See, e.g., ECF No. 27-5].
As described by the Fourth Circuit, “the collective knowledge doctrine applies . . . ‘when at least some, but not all, of an investigative team has actual knowledge of facts necessary to a finding of probable cause. The knowledge is imputed from one officer to another such that the officers collectively are assumed to have actual knowledge of the imputed fact.'” United States v. Pulley, 987 F.3d 370, 379 (4th Cir. 2021) (citing United States v. Blauvelt, 638 F.3d 281, 289 (4th Cir. 2011)). However, as also stated by the Fourth Circuit:
The collective-knowledge doctrine “simply directs [a court] to substitute the knowledge of the instructing officer or officers for the knowledge of the acting officer; it does not permit [a court] to aggregate bits and pieces of information from among myriad officers.” United States v. Massenburg, 654 F.3d 480, 493 (4th Cir.2011). In Massenburg, we rejected a more expansive version of the doctrine that the Government had proposed and that several circuits have adopted because “[u]nder th[at] proposed rule, it would be irrelevant that no officer had sufficient information to justify a search or seizure.” Id. Thus in Massenburg we held that the instructing officer alone must have sufficient information to justify an arrest or search in order for the acting officer to benefit from the collective-knowledge doctrine. Id. at 495-96.United States v. Patiutka, 804 F.3d 684, 691 (4th Cir. 2015); see also United States v. Ferebee, 957 F.3d 406, 411 (4th Cir. 2020).
However, Defendants do not offer evidence-nor even appear to argue- that Cuzzupe, McRoberts, Wenzel, or any other relevant officer, were involved in or aware of the July 2018 incident and appear to argue only that this information is in the record. [See ECF No. 67 at 4-5 and n.6, see also, e.g., ECF No. 52-1 at 3-4, ECF No. 27-1, ECF No. 44 at 5-6, ECF No. 62-7 at 53:3-15, 63:1-13, ECF No. 27-5, ECF No. 62 at 3 (“There is also video documentation that other deputies had contact with Plaintiff Braxton and his brother at 532 Atterbury Drive in July of 2018.”)]. As such, Defendants have failed to show this doctrine is applicable such that the court could conclude that Cuzzupe listed the 532 Atterbury address and identified this address as Plaintiff's residence without reckless disregard for the truth.
Additionally, even if he had knowledge of the July 2018 incident, there is no indication that Cuzzupe relied on this information or informed the magistrate judge of such information when seeking the relevant warrants against Plaintiff.
Turning to McRoberts' identification, a review of the evidence in the light most favorable to Plaintiff indicates Cuzzupe also had obvious reasons to doubt the accuracy of the identification. First, prior to the knock-and-talk, Cuzzupe identified Plaintiff as the subject in question. Additionally, although he testified otherwise, McRoberts had, at most, eight seconds, to witness the fleeing suspect, and it is undisputed McRoberts had no prior knowledge of Plaintiff. Finally, Cuzzupe informed McRoberts as to his and Wenzel's belief the fleeing person was Plaintiff and provided McRoberts with Plaintiff's photograph.
This evidence, known to Cuzzupe, undercuts the reliability of McRoberts' identification of Plaintiff. Although not dispositive, the reliability of McRoberts' identification is also undercut by the mechanism of how identification occurred, where Plaintiff's name was presented to Cuzzupe as the relevant suspect and one photograph, with Plaintiff's name on it, was presented to McRoberts, inconsistent with RCSD eyewitness identification policy.
Plaintiff additionally notes he has numerous tattoos that would have been visible if he had run shirtless from officers [see ECF No. 62-4, ECF No. 62 at 19]; there is no mention of tattoos in any of the evidence submitted discussing the attributes of the person who ran, including from McRoberts.
Defendants rely heavily on how much Cuzzupe believed McRoberts to be trustworthy, both professionally and personally. [See, e.g., ECF No. 67 at 3-4]. However, Defendants have not offered evidence or argument that McRoberts was somehow immune from the difficulties inherent in the type of identification process that occurred here. As stated by the Supreme Court, “[a] conviction which rests on a mistaken identification is a gross miscarriage of justice.” Stovall v. Denno, 388 U.S. 293, 297 (1967), overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314 (1987). “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned ....” Id. at 302. In general:
Any identification process . . . involves danger that the percipient may be influenced by prior formed attitudes . . . Where the witness bases the identification on only part of the suspect's total personality, such as height alone, or eyes alone, or voice alone, prior suggestions will have most fertile soil in which to grow to conviction. This is especially so when the identifier is presented with no alternative choices; there is then a strong predisposition to overcome doubts and to fasten guilt upon the lone suspect.Palmer v. Peyton, 359 F.2d 199, 201 (4th Cir. 1966).
This case stands in contrast to those where the record is devoid of any evidence that the officer swearing the warrant, in this case Cuzzupe, had reason to doubt the eyewitnesses', in this case McRoberts', identification. See, e.g., Battle v. Jones, C/A No. 6:15-4960-BHH-KDW, 2016 WL 7800306, at *4 (D.S.C. Dec. 20, 2016) (“[A] finding of probable cause may be based on information provided by a victim or eyewitness to a crime, as it is well-established that when an officer has received . . . information from some person-normally the putative victim or an eyewitness-who it seems reasonable to believe is telling the truth, he has probable cause.”) (citing United States v. Beckham, 325 F.Supp.2d 678 (E.D. Va. 2004)); Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th Cir. 1991) (“It is surely reasonable for a police officer to base his belief in probable cause on a victim's reliable identification of his attacker. Indeed, it is difficult to imagine how a police officer could obtain better evidence of probable cause than an identification by name of assailants provided by a victim, unless, perchance, the officer were to witness the crime himself.”) (citation omitted and emphasis added)).
There are additional concerns. Following the events of January 15, 2020, evidence indicates that both Plaintiff and the actual resident located at 532 Atterbury informed officers repeatedly that Plaintiff was not at that address and, instead, he was working on that day. Plaintiff provided Cuzzupe and others all the information needed to contact his work to confirm his presence there on the day in question. Additionally, the evidence gathered at the January 15, 2020 scene tested negative for Plaintiff's prints, the same day Cuzzupe swore out the warrants on Plaintiff and the day before Plaintiff was arrested.
Certainly, the Fourth Amendment does not require every potential witness be interviewed and every lead be followed. See, e.g., Wadkins v. Arnold, 214 F.3d 535, 543 (4th Cir. 2000) (“The question before us is not whether [the officer] exhausted every potential avenue of investigation.”); Torchinsky, 942 F.2d at 264 (“It will, of course, always be possible to contend in court that an arresting officer might have gathered more evidence, but judges cannot pursue all the steps a police officer might have taken that might have shaken his belief in the existence of probable cause.”).
Here, however, the evidence gathered by the officers prior to Plaintiff's arrest was wholly exculpatory or potentially exculpatory, and not even a limited investigation was conducted regarding this information. See, e.g., Brown v. Wiita, 7 Fed.Appx. 275, 279 (4th Cir. 2001) (“In sum officers who mistakenly arrest the wrong person are immune from § 1983 liability unless they act in an objectively unreasonable manner in the circumstances, as for example, in failing to investigate readily available exculpatory evidence.”).
In sum, Cuzzupe had obvious reasons to doubt the accuracy of the address he provided and the eyewitness testimony and failed to inform the magistrate judge of the exculpatory and potentially-exculpatory evidence that had been found. Viewing the evidence in the light most favorable to Plaintiff, a correct warrant application would not have established probable cause to arrest him. As such, the record indicates that Plaintiff was arrested pursuant to warrants containing materially-false statements and omissions, on which Plaintiff's grand jury indictments also relied, in violation of his Fourth Amendment rights.
Turning to the second prong of the qualified immunity inquiry, although the court agrees with Defendants that “Plaintiff's claim of innocence and that his arrest was solely based on a mistaken identification does not strip these deputies of qualified immunity” [ECF No. 52-1 at 19], here, the appropriate inquiry “is not whether there actually was probable cause for the . . . warrant against [the plaintiff], but whether an objective law officer could reasonably have believed probable cause to exist.” See Gomez v. Atkins, 296 F.3d 253, 26162 (4th Cir. 2002).
As stated, taking the evidence in the light most favorable to Plaintiff, there is a genuine factual dispute as to whether an objective law officer could have reasonably believed probable cause existed to arrest Plaintiff based on the information known to the officers at the relevant time period. Plaintiff has carried the burden to show Cuzzupe, “when viewing all the evidence” he stated he relied upon, “must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.” Nero v. Mosby, 890 F.3d 106, 129 (4th Cir. 2018) (citation omitted); see also, e.g., Smith v. Munday, 848 F.3d 248, 254 (4th Cir. 2017) (denying qualified immunity in the context of a mistaken identity malicious prosecution claim, noting “an investigating officer must still conduct some sort of investigation and assemble individualized facts that link the suspect to the crime”); Miller, 475 F.3d at 632-33 (“In sum, well before the events at issue in this case, it was clearly established that a police officer could not lawfully make intentionally or recklessly false material statements or omissions in order to obtain a warrant. Accordingly, Det. Dougans is not entitled to qualified immunity, as a matter of law, on the present record.”).
III. Conclusion
For the foregoing reasons, the undersigned recommends the district judge grant in part and deny in part Defendants' motion for summary judgment, allowing Plaintiff's claim brought pursuant to 42 U.S.C. §1983 for an unreasonable seizure in violation of the Fourth Amendment to proceed. [ECF No. 52].
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).