917 F2d 1307 Paegelow v. Carson City V R

917 F.2d 1307

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

James F. PAEGELOW, Plaintiff-Appellant,
CARSON CITY, Hal V. Dunn, William R. Kugler, and Darryl
Peterson, Defendants-Appellees.

No. 88-15678.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 4, 1990.*
Decided Nov. 7, 1990.

Before SCHROEDER, FERGUSON and BRUNETTI, Circuit Judges.

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Plaintiff appeals the district court's summary judgment order in favor of the defendants. We affirm.


In 1986, the plaintiff filed a complaint alleging civil rights damages under 42 U.S.C. Secs. 1983, 1988, arising out of his warrantless arrest on August 18, 1985. He named as defendants two of the arresting officers, the Carson City Sheriff and Carson City.


The plaintiff alleged that the defendants violated his civil rights by arresting him without probable cause, continuing to detain him after the sole witness left town, and implementing constitutionally inadequate officer training and supervision. In this appeal, the plaintiff continues to press the above claims and asserts that the district court's summary judgment order was in error because genuine issues of material fact exist between the parties in regards to both probable cause and municipal liability.


Since we find that probable cause for his arrest did exist and that the officers were under no constitutional obligation to release him, plaintiff's civil rights actions against all of the defendants must fail.



We review an order for summary judgment de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 110 S.Ct. 3217 (1990). When reviewing a grant of summary judgment, we must read the record in the light most favorable to the losing party. Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir.1984). However, in a motion for summary judgment, the nonmoving party may not simply rest upon his pleadings, but must provide the court with evidence of the existence of a disputed material issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).



The undisputed facts according to the record below are as follows. At approximately 3:06 a.m., the Carson City Sheriff's Department received a call reporting that a male subject in his twenties wearing shorts and a blue sweatshirt was attempting to break into the Carson City Sub Shop ("Sub Shop") located on Carson Street. The witness stated that he had an unobstructed view of the suspect from his hotel room located across the street.

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Carson City Sheriff's officers arrived on the scene within minutes. At approximately 3:08 a.m., Deputies Kugler and Tracy saw the plaintiff walking near the southeast corner of the shop. The plaintiff was 29 years old and wearing a white sleeveless tank top, gray shorts and thongs. They stopped him for a field interview. The plaintiff identified himself and explained that he was on his way to visit his girlfriend, who lived a couple of houses away.


Meanwhile, defendant officer Sgt. Peterson discovered fresh pry marks on the Sub Shop's window frame and metal shavings which had been scraped off the frame. Deputy Kugler was directed to interview the witness at the hotel. The witness appeared sober, was dressed, and had a pleasant demeanor. The deputy verified the witness' view of the Sub Shop, his description of the suspect, and noted that the observed area was adequately lit. Deputy Kugler related this information to Sgt. Peterson.


During this time, Sgt. Peterson had interviewed Mr. Robert Banker, who lived down the street from the Sub Shop. Mr. Banker said he lent the plaintiff a light blue blanket at approximately 3:00 a.m. He explained that the plaintiff was scheduled to work at Thomas Diamonds, Inc., located in the same block as the Sub Shop, later that morning and sometimes slept in the store. Before he left Mr. Banker, the plaintiff wrapped the blanket across his shoulders.


Based upon this information, Sgt. Peterson determined that probable cause existed to arrest the plaintiff for attempted burglary. The plaintiff was taken to the Carson City Sheriff's office and booked. A criminal complaint was filed on August 26, 1985. At the time of the arrest, the witness had informed the police that he was only in town for a few days and gave them his permanent address. The police never attempted to have the witness identify the plaintiff before he left town.


Unable to make his $15,000 bail, the plaintiff was held in jail for approximately two weeks after which he was released on a stipulation by the district attorney. His preliminary examination was rescheduled for January 26, 1986. However, all the charges were dismissed on January 6 after the prosecutor was unable to locate the witness.



The parties agree on the majority of facts regarding the plaintiff's arrest. However, the plaintiff now asserts that several factual matters are in dispute, therefore making summary judgment improper. A review of the papers and affidavits filed with the district court reveals that the plaintiff either admitted to or failed to contest the facts he now argues are in dispute.


The plaintiff disputes whether the officers decided to arrest him before or after they learned of the existence of the blue blanket. However, the plaintiff's own Proposed Findings of Fact filed with his Cross-Motion for Summary Judgment state that Sgt. Peterson interviewed Mr. Banker before the plaintiff was arrested.


Secondly, the plaintiff disputes the officers' contention that he wore the blanket "wrapped around his shoulders" after borrowing it from Mr. Banker. When determining whether the officers had probable cause to arrest, this court must look at the information available to them at the time of arrest. See Gerstein v. Pugh, 420 U.S. 103, 111-12 (1974). The police report contains Sgt. Peterson's statement that Mr. Banker told him the plaintiff wrapped the blanket around his shoulders.


The remaining factual issues which the plaintiff claims are in dispute either are not material to the determination of probable cause or were undisputed in the lower court.1 Therefore, the factual record before the district court was appropriate for summary adjudication.



To prove a violation of Sec. 1983, the plaintiff must show that the officers lacked probable cause to arrest him. Williams v. Kobel, 789 F.2d 463, 470 (7th Cir.1986). The plaintiff argues that probable cause could not exist based on the description given by the witness since it could fit numerous young men in Carson City in the summertime. He asserts that the generality of the description may not be buttressed by the quickness of the officers' response, the time of day, and the arrestee's proximity to the site where the suspect was last observed.


The Supreme Court has defined probable cause for arrest as "facts and circumstances 'sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.' " Gerstein v. Pugh, 420 U.S. at 111-12 (1974) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). We have upheld probable cause based upon a general description when coupled with the knowledge that the suspect had been in the same area shortly before the police arrived. See United States v. Miroyan, 577 F.2d 489, 493 (9th Cir.) (arrestee found in the hotel lobby where the suspect was known to be and had checked in within last fifteen minutes as had the suspect), cert. denied sub nom. McGinnis v. United States, 439 U.S. 896 (1978).


The plaintiff was found by the officers near the Sub Shop only a few minutes after the suspect had been observed there. At 3:00 a.m., when the plaintiff was arrested, the witness' description matched only him. The plaintiff has not argued or submitted evidence that there was anyone else on Carson Street that morning. The time of the arrest, along with the plaintiff's proximity to the Sub Shop and the officers' quick response, are clearly within the "facts and circumstances" appropriate for the officers' consideration.


Alternatively, the plaintiff argues that because he was not wearing a blue sweatshirt when arrested the officers did not have probable cause to believe he was the man described by the witness. The absence of a blue sweatshirt on the plaintiff when met by Officers Kugler and Tracy did not place him outside the description given by the witness. A sweatshirt can easily be taken off. The subsequent discovery that the plaintiff had worn a blue blanket could support a prudent man's belief that the witness mistook the blanket for a sweatshirt.


We affirm the district court's conclusion that the officers had probable cause to arrest the plaintiff.




Alternatively, conceding his arrest was valid, plaintiff would have this court find that his continued detention after the witness had left town without identifying the plaintiff was patently unreasonable and should be grounds for Sec. 1983 liability. The district court held that a police officer has no absolute duty to release a suspect legally arrested unless he discovers evidence which undermines the original probable cause "beyond any reasonable doubt." Plaintiff urges this court to adopt a different test to assess the officers' post-arrest actions. He asserts that the "fundamental question should be: did the police act reasonably in continuing to hold Mr. Paegelow when [the witness] left town ...?"


The officers admit that perhaps their investigation could have been improved. However, given the current law regarding identifications, they stress the decision not to have the witness identify the plaintiff at the time of arrest was within their discretion.2 After the arrest, neither the plaintiff nor his attorney requested a witness identification.


We need not decide which standard officers should be held to regarding their post-arrest obligation to release a suspect. Under either the reasonable doubt standard used by the district court or the reasonableness standard pressed by the plaintiff, we find that the officers' conduct did not violate the plaintiff's rights. The officers received from the witness a permanent address at which he presumably could be reached once he left town. Once the plaintiff was lawfully arrested, the officers turned the investigation over to the prosecutor. When the prosecutor tried to contact the witness, she found that he was on tour and would be difficult to reach. It was clearly within her discretion to dismiss the charges against the plaintiff instead of expending her office's resources to locate the witness.


Therefore, we affirm the district court's grant of summary judgment for the defendants on all of the plaintiff's civil rights claims.




This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Specifically, the plaintiff argues that his apparent age, his height and weight, and the color of the blanket are all in dispute. In fact, no contrary evidence was ever produced regarding the youthfulness of his appearance. Neither party asserts that the witness was asked about the suspect's height or weight. Finally, the exact color of the blanket, which has been characterized as both light blue or green, is not material to the issue of probable cause


The Supreme Court has held show-up identifications highly suspect because of the likelihood for misidentification. See Stovall v. Denno, 388 U.S. 302 (1967). In addition, the Nevada Supreme Court has admonished its law enforcement against the use of this identification method absent exigent circumstances. Gehrke v. State, 613 P.2d 1028, 1031 (Nev.1980) (Mowbray, C.J., concurring)