Gardenhire v. Schubert

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 2, 2000
• Docket: 98-6434
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0075P (6th Cir.) File Name: 00a0075p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  KATHERINE GARDENHIRE and  WALTER GARDENHIRE,  Plaintiffs-Appellees,  No. 98-6434

 v. >    DONALD SCHUBERT, in his

 individual and official

Defendant-Appellant.  capacity as Chief of Police,  1

Appeal from the United States District Court for the Middle District of Tennessee at Cookeville. No. 97-00061—Thomas A. Higgins, District Judge. Argued: August 5, 1999 Decided and Filed: March 2, 2000 Before: BATCHELDER and COLE, Circuit Judges; MARBLEY, District Judge.*

* The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation.

1 2 Gardenhire, et al. v. Schubert No. 98-6434

_________________ COUNSEL ARGUED: Daniel H. Rader III, MOORE, RADER, CLIFT & FITZPATRICK, Cookeville, Tennessee, for Appellant. Lisa B. Harris, HARRIS LAW FIRM, Cookeville, Tennessee, for Appellees. ON BRIEF: Daniel H. Rader III, Lane Moore, MOORE, RADER, CLIFT & FITZPATRICK, Cookeville, Tennessee, for Appellant. Lisa B. Harris, Samuel J. Harris, HARRIS LAW FIRM, Cookeville, Tennessee, for Appellees. MARBLEY, D. J., delivered the opinion of the court, in which COLE, J., joined. BATCHELDER, J. (pp. 26-30), delivered a separate opinion concurring in part and dissenting in part. _________________ OPINION _________________ ALGENON L. MARBLEY, District Judge. Plaintiffs- Appellees Katherine and Walter Gardenhire brought this suit against the Defendant-Appellant, Algood Police Chief Donald Schubert, alleging that Chief Schubert violated their civil rights, in violation of 42 U.S.C. § 1983, by arresting them without probable cause and refusing to arrest and to prosecute their neighbor for burglarizing their retail business. Chief Schubert filed a motion for summary judgment based on qualified immunity, which the district court denied. This interlocutory appeal followed, and raises the same questions presented in the court below. For the following reasons, we AFFIRM in part and REVERSE in part the judgment of the district court. I. In December of 1996, Katherine Gardenhire owned a retail clothing store called Uniquely Yours. Located immediately 30 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 3

cause to arrest. Even absent probable cause, qualified adjacent to Ms. Gardenhire’s establishment was a thrift shop immunity is available if a reasonable police officer could have owned by Mary Della Sala. The two businesses shared a believed that his or her conduct was lawful, in light of clearly common interior doorway. The bathroom and climate-control established law and the information the searching officers panel for both stores were located in Ms. Della Sala’s shop. possessed. Anderson v. Creighton, 483 U.S. 635, 641 (1987). Some time shortly before December 1996, Ms. Gardenhire In 1996, the clearly established law of probable cause in this and Ms. Della Sala agreed to trade store fronts. On December circuit was Criss v. City of Kent. The majority spends some 31, the two women were in the process of moving their three pages distinguishing this case, but Chief Schubert was merchandise; both women had access to the other’s not required to anticipate the majority’s opinion here. Chief establishments and each had property in both locations. Schubert was entitled to rely on the plain holding of Criss, and a reasonable and prudent man, rather than a legal On December 31, 1996, Ms. Della Sala telephoned the technician, cf. Brinegar v. United States, 338 U.S. 160, 175 Algood Police Department to report a theft of property from (1949), could have read Criss to authorize the arrest, without her thrift shop. She claimed that a banjo, fiddle, pink further inquiry, of individuals who were in possession of flamingo dish, television and VCR were among the items particular goods that had been explicitly identified as stolen. stolen. Algood Police Officer Bill Davis responded to Ms. Accordingly, I must dissent from this portion of the majority’s Della Sala’s call by going to her store; he subsequently opinion. contacted Chief Schubert, who was also acting detective for the city. When Chief Schubert arrived on the scene, Officer Davis told him that Ms. Della Sala had reported certain items missing from her store, and that some of these items were visible, through the windows, inside Uniquely Yours. Chief Schubert, dressed in civilian clothes, and another officer, in uniform, then went to the Gardenhires’ home and asked them to come to the police station as part of the investigation. There is no evidence in the record as to how the officers phrased this directive. Although Katherine Gardenhire is the sole owner of Uniquely Yours, the police also solicited the cooperation of her husband, Walter Gardenhire. The Gardenhires are an interracial couple: Katherine is Caucasian, and Walter is African-American. The Gardenhires drove their own car to the station, where they met Chief Schubert and Officer Davis. Chief Schubert explained why the couple had been summoned there and read them their Miranda rights. The Gardenhires agreed to cooperate in the investigation and answered all police questions. During the interview, the couple admitted that they had, at their home, the flamingo dish Ms. Della Sala reported stolen. They also told the police that they had a key to the 4 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 29

Della Sala store. Ms. Gardenhire alleges that she asked to fact in the Gardenhires’ possession, according to the majority, call her attorney at one point during the questioning, but the “[f]urther investigation was necessary at that point.” The police denied the request. The police asked for permission to majority goes on to speak of a “duty to investigate an alleged search Uniquely Yours, and Mr. Gardenhire signed a consent crime before making an arrest,” suggesting that Chief to search form. Ms. Gardenhire claims that throughout this Schubert was obligated to elicit and consider an exculpatory encounter, Chief Schubert made “condescending glares” at explanation from the Gardenhires. In so doing, the her and1her husband. After spending some hours at the police majority—although denying that it is doing so—subtly station , the Gardenhires left, unaccompanied, in their own promulgates the rule that arresting officers have a duty to car, and retrieved the flamingo dish from their home. They conduct an investigation into the basis of an eyewitness report then met the police at their store. before making an arrest that is founded on the report. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1453 (9th Cir. 1991) At the store, Mr. Gardenhire opened the door and allowed (Hall, J., concurring). Officer Davis and Chief Schubert to enter and recover Ms. Della Sala’s items. The police found all of the goods This holding flies in the face of Criss’s explicit admonition Ms. Della Sala claimed were stolen. At that point, both that “no such duty to investigate can nor should be created.” officers noted that the placement of these items was oddly Criss, 867 F.2d at 263. And Criss is bottomed on Supreme conspicuous. Officer Davis thought it would be “foolish” for Court caselaw. In Baker v. McCollan, the Supreme Court someone to steal merchandise and then display it in the next- held that, “Given the requirements that arrest be made only on door window in plain view. probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is While the police were recovering Ms. Della Sala’s items, required by the Constitution to investigate every claim of Ms. Gardenhire noticed that several pieces of merchandise innocence . . . .” Baker, 443 U.S. 137, 145-46 (1979). from Uniquely Yours were missing. Mr. Gardenhire Although the plaintiff in Baker did not bring a claim under the discovered that the cash register was gone. The Gardenhires Fourth Amendment, this court, in Criss, and others have suspected that Ms. Della Sala had stolen the items and told applied the Supreme Court’s decision in the context of Chief Schubert that they had been robbed. The officer refused probable cause. Criss, 867 F.2d at 263; Pickens v. Hollowell, to deal with their complaint. Ms. Gardenhire became agitated 59 F.3d 1203, 1207 (11th Cir. 1995). The result is clear: a and demanded to make a police report. According to Ms. duty to investigate is no part of the probable cause Gardenhire’s affidavit, Chief Schubert told her to “shut up,” determination. Criss, 867 F.2d at 263; Kelley v. Myler, 149 and ordered her to leave the store and wait in her car. She did F.3d 641, 646-47 (11th Cir. 1998) (“We refuse to add this so. extra requirement to the probable cause determination . . . . The inquiry is whether an officer has reasonable grounds on Soon afterwards, Chief Schubert asked the Gardenhires to which to act, not whether it was reasonable to conduct further follow Officer Davis to the Putnam County Justice Center to investigation.”). present the facts to Magistrate Martin Wheeler. He advised the couple that they would be booked on charges of theft, Even if the majority were correct that the information in burglary and criminal trespass, and would have to post bond Chief Schubert’s possession “was not enough to justify an arrest,” the Chief would still be entitled to summary judgment on the basis of qualified immunity. The doctrine of qualified 1 The parties have not stated, nor does the record reflect, exactly how immunity does not require that there actually be probable long the Gardenhires were detained at the police station. 28 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 5

the determination whether probable cause to arrest exists. to be released. Ms. Gardenhire’s affidavit describes her A policeman, however, is under no obligation to give any impressions at that point: “We were not given a choice to go credence to a suspect’s story nor should a plausible and I understood that if I did not drive myself that I would be explanation in any sense require the officer to forego physically forced to go. We were warned not to deviate from arrest pending further investigation if the facts as initially the specified route and that if we did not show up at the discovered provide probable cause. . . . Putnam County Justice Center that a capias would be issued To hold otherwise would be to allow every suspect, for our arrest.” The parties stipulate that the police did not guilty or innocent, to avoid arrest simply by claiming “it place the Gardenhires in a police car, nor did the officers say wasn’t me.” And if the arresting officer failed to “you are under arrest,” handcuff or physically touch the investigate such claims prior to arrest, the arrestee could couple. The Gardenhires complied with Schubert’s direction bring a section 1983 suit. . . . [W]e find that no such and followed Officer Davis to the Justice Center in their own duty to investigate can nor should be created. car. As Officer Davis led the couple to the Justice Center, he did not use his police lights or siren. Criss, 867 F.2d at 263 (citations omitted). At the Justice Center, Magistrate Wheeler spoke to the The majority attempts, unconvincingly, to distinguish Criss. Gardenhires. After this interview, the magistrate determined The majority suggests that the items in Criss were of the type that there was no probable cause to arrest the couple, and that one must presume are stolen, while those in this case concluded that this was a civil matter. At some point during could be deemed stolen only from Ms. Della Sala’s the Justice Center episode, Chief Schubert told the couple accusation. But this is to say that an inference that an officer they should “just collect up the rest of [their] things and get might logically draw from the nature of a stolen object is out of town.” The Gardenhires were not booked, entitled to greater weight than the testimony of the victim of fingerprinted or photographed. They were not incarcerated the crime—a premise that itself is contrary to established and were free to leave after the interview with Magistrate precedent. Where, as here, a citizen informant is the victim Wheeler. of the crime in question, her report is entitled to great weight in the probable cause determination. See, e.g., Adams v. On June 16, 1997, The Gardenhires brought this suit in the Williams, 407 U.S. 143, 147 (1972). Indeed, as this court has United States District Court for the Middle District of recently pointed out, a crime victim’s accusation standing Tennessee against Chief Schubert and the Algood Police alone can establish probable cause. Ahlers v. Schebil, 188 Department. Chief Schubert is the only remaining defendant, F.3d 365, 370 (6th Cir. 1999); see also United States v. and is sued in both his individual and official capacity. The Maryland, 479 F.2d 566, 569 (5th Cir. 1973) (holding that Gardenhires have brought two claims against Chief Schubert “information given to law enforcement authorities by the pursuant to 42 U.S.C. § 1983. First, the Gardenhires allege victim of the crime immediately after its occurrence was that Chief Schubert violated the Fourth Amendment’s clearly sufficient to supply probable cause for appellant’s prohibition against unreasonable searches and seizures by arrest”). arresting them without probable cause. Second, the Gardenhires claim Chief Schubert violated the Fourteenth From these shaky ramparts, the majority launches its Amendment’s guarantee of equal protection of the laws by principal assault on the holding of Criss. After Chief not pursuing an investigation against Ms. Della Sala, and Schubert had received the crime victim’s complaint, and after arresting the Gardenhires instead. The second claim is he had corroborated that the allegedly stolen goods were in premised on the theory that the officers’ failure to investigate 6 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 27

was motivated by the fact that the Gardenhires are an Here, the apparent victim of an alleged theft accused the interracial couple. Gardenhires of the crime, and the objects allegedly stolen were found in the Gardenhires’ actual or constructive On November 14, 1997 Chief Schubert filed a motion for possession. These objective factors support a reasonable summary judgment arguing that he is protected from this suit belief that the Gardenhires had committed the offense of theft; by the doctrine of qualified immunity. The district court the fact that before he instructed the Gardenhires to go to the denied this motion, holding that Chief Schubert was not Justice Center, Chief Schubert declined to conduct further entitled to qualified immunity because a reasonable jury could investigation on the basis that the allegedly stolen objects find that his actions on December 31, 1996 amounted to an were visible through a window, or on the basis that the arrest of the Gardenhires, and that the arrest was made Gardenhires protested their innocence, does not vitiate without probable cause. The district court also held that probable cause. A panel of this court so held in Criss v. City selective enforcement of state laws is actionable under the of Kent, 867 F.2d 259 (6th Cir. 1988), a case whose Equal Protection Clause of the Fourteenth Amendment. precedential grasp the majority engages in considerable Chief Schubert now brings this interlocutory appeal of the acrobatics to evade. issues raised in his original motion for summary judgment. In Criss, police officers observed through an open window II. street signs belonging to the City of Kent. The officers obtained a search warrant and questioned Criss, who resided The denial of a summary judgment motion on the issue of in the apartment. Criss maintained that the signs had been qualified immunity is immediately appealable. See Mitchell taken by his roommate. The officers nevertheless arrested v. Forsyth, 472 U.S. 511 (1985). The issue of qualified him for receipt of stolen property. A prosecutor later immunity is a question of law to be reviewed de novo by this dismissed the charge, and Criss brought a § 1983 action for Court. See Long v. Norris, 929 F.2d 1111, 1114 (6th Cir. violation of his Fourth Amendment rights. 1991). Summary judgment is only appropriate where the “pleadings, depositions, answers to interrogatories, and Despite Criss’s plausible on-the-spot explanation of his admissions on file together with the affidavits, if any, show association with the signs, and despite the fact that someone that there is no genuine issue as to any material fact and that in receipt of stolen signs would be unlikely to display them to the moving party is entitled to a judgment as a matter of law.” public view, this court held that the arresting officers had Fed. R. Civ. P. 56(c). All facts, as well as all inferences probable cause for the arrest. The court noted that the signs drawn therefrom, must be viewed in the light most favorable were either the property of the City or were remarkable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. replicas. Because Criss had either constructive or actual v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). possession of them, the court concluded, the officers had reasonable ground for their belief that Criss had received Schubert claims he is entitled to summary judgment based stolen property. The court went on to make clear that a duty on the affirmative defense of qualified immunity against the to investigate is not part of the probable cause inquiry. The Gardenhires’ § 1983 claims. Section 1983 provides: court’s holding in this regard is worth setting out at length: Every person who under color of any statute, ordinance, A suspect’s satisfactory explanation of suspicious regulation, custom, or usage, of any State . . . subjects, or behavior is certainly a factor which law enforcement causes to be subjected, any citizen of the United States or officers are entitled to take into consideration in making other person within the jurisdiction thereof to the 26 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 7

_____________________________________________ deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to CONCURRING IN PART, DISSENTING IN PART the party injured in an action at law, suit in equity, or _____________________________________________ other proper proceeding for redress. . . . ALICE M. BATCHELDER, Circuit Judge, concurring in By its terms, § 1983 creates no substantive rights; it merely part and dissenting in part. The majority opinion creates a provides remedies for deprivations of rights established new factor in the determination of probable cause: a duty to elsewhere. See Tuttle v. Oklahoma City, 471 U.S. 808 (1985). investigate. Because this innovation runs counter to the In this case, the Gardenhires allege that Schubert violated settled law of this circuit, and because Chief Schubert can their Fourth Amendment right to be free from unreasonable hardly be expected to have anticipated it, I must dissent from searches and seizures as well as their Fourteenth Amendment Part II of the majority opinion. right to equal protection of the laws. When viewed in the light most favorable to the plaintiffs, The affirmative defense of qualified, or good faith, the evidence establishes that from their earliest encounter immunity shields “government officials performing with the Gardenhires, the police were in possession of four discretionary functions . . . from liability for civil damages facts. First, Mary Della Sala complained that her belongings insofar as their conduct does not violate ‘clearly established’ had been stolen, and that they were visible through the statutory or constitutional rights of which a reasonable person windows of the Gardenhires’ shop. Second, the allegedly would have known.” Harlow v. Fitzgerald, 457 U.S. 800, stolen items were in fact in the Gardenhires’ shop. Third, the 818 (1982). An official may, however, be held personally placement of the items in public view was somewhat liable for civil damages for unlawful official action if that suspicious. Finally, the Gardenhires professed no knowledge action was not objectively reasonable in light of the legal of the theft. rules that were “clearly established” at the time it was taken. See Anderson v. Creighton, 483 U.S. 635, 639 (1987). This These facts plainly support a finding of probable cause, “objective legal reasonableness” standard analyzes claims of regardless of when the Gardenhires were “arrested.”1 immunity on a fact-specific, case-by-case basis to determine Probable cause means “facts and circumstances within the whether a reasonable official in the defendant’s position could officer’s knowledge that are sufficient to warrant a prudent have believed that his conduct was lawful, judged from the person, or one of reasonable caution, in believing, in the perspective of the reasonable official on the scene. See circumstances shown, that the suspect has committed . . . an Graham v. Connor, 490 U.S. 386, 396 (1989). offense. Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). It is not an exacting standard; probable cause requires only the When determining whether a right is "clearly established," probability of criminal activity, not some type of “prima this Court must look "first to decisions of the Supreme Court, facie” showing. Illinois v. Gates, 462 U.S. 213, 235 (1983). then to decisions of this Court and other courts within our circuit, and finally to decisions of other circuits." Daugherty v. Campbell, 935 F.2d 780, 784 (6th Cir. 1991). "The 1 contours of the right must be sufficiently clear that a Although I question whether the Gardenhires were ever arrested, I reasonable official would understand that what he is doing will not take up the cudgels on that subject here. The important point is that the police had probable cause to arrest them after the initial interview, violates that right." Anderson v. Creighton, 483 U.S. 635, and the totality of the circumstances did not subsequently tip the balance 640 (1987). However, “[t]his not to say that an official action in favor of the Gardenhires. 8 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 25

is protected by qualified immunity unless the very action in ignore, see Criss, 867 F.2d at 262, -- rather than in the question has previously been held unlawful; but it is to say “citizen making a complaint” category. While Ms. Della that in the light of pre-existing law the unlawfulness must be Sala’s store may have been similarly situated to the apparent." Id. (citations omitted). Gardenhires geographically, by virtue of the timing of their respective complaints, she was not otherwise similarly Where a defendant moves for summary judgment based on situated to the Gardenhires on December 31, 1996. There qualified immunity, the plaintiff must first identify a clearly was no police report implicating Ms. Della Sala of a crime. established right alleged to have been violated and second, establish that a reasonable officer in the defendant’s position Second, the Gardenhires have not presented any evidence should have known that his conduct violated that right. See to support their claim that Chief Schubert purposefully Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995); discriminated against them because they are an interracial Johnson v. Estate of Laccheo, 935 F.2d 109, 111 (6th Cir. couple. While Chief Schubert’s manners may not have 1991). The ultimate burden of proof is on the plaintiff to conformed to Emily Post standards, there is no evidence that show that the defendant is not entitled to qualified immunity. he was motivated by racial animus. The Gardenhires’ basic See Wegener v. Covington, 933 F.2d 390, 392 (6th Cir. 1991). argument is that the police had no logical reason to prosecute The defendant bears the initial burden of coming forward with them rather than Ms. Della Sala, so the arrest must have been facts to suggest that he acted within the scope of his motivated by their interracial marriage. While such reasoning discretionary authority during the incident in question. would be sufficient in establishing a prima facie Title VII Thereafter, the burden shifts to the plaintiff to establish that case, the standard for a selective enforcement claim is much the defendant’s conduct violated a right so clearly established more demanding. The Gardenhires have failed to establish that any official in his position would have clearly understood that Chief Schubert acted with discriminatory purpose, nor that he was under an affirmative duty to refrain from such have they presented the “clear evidence” of misbehavior conduct. See Rich v. City of Mayfield Heights, 955 F.2d sufficient to sustain their selective enforcement claim to 1092, 1095 (6th Cir. 1992). This Court has held, however, overcome the presumption that the state actors have properly that: discharged their official duties. In light of the deference given to the discretionary decisions of law enforcement officers, and summary judgment would not be appropriate if there is the dearth of evidence to the contrary, the district court’s a factual dispute (i.e., a genuine issue of material fact) decision on this issue is therefore REVERSED, and the involving an issue on which the question of immunity Gardenhires’ Equal Protection claim is DISMISSED. turns, such that it cannot be determined before trial whether the defendant did acts that violate clearly established rights. Summary judgment also should be denied if the undisputed facts show that the defendant's conduct did indeed violate clearly established rights. In either event, the case will then proceed to trial. . . . Poe v. Haydon, 853 F.2d 418, 425-26 (6th Cir. 1988) (citations omitted). In this case, to determine whether Chief Schubert’s actions violated any clearly established constitutional rights, this 24 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 9

may find he was arrested and that his arrest, at least, was Court must decide, first, what the state of the law was on based on racial animosity. And, just as a police officer may December 31, 1996, and, second, whether there is a factual not unevenly apply the laws against a citizen because of his dispute on which the question of immunity turns. See Rich, race, neither may he apply the laws unevenly because a citizen 955 F.2d at 1095. is married to someone of a particular race. See Loving v. Virginia, 388 U.S. 1, 8 (1967) (holding that state may not A. Jurisdiction treat interracial marriages differently from other marriages). The Court's jurisdiction over interlocutory appeals on a There is no question that in 1996, it was clearly established claim of qualified immunity is limited to considering pure that police officers could not selectively enforce state laws issues of law. Berryman v. Rieger, 150 F.3d 561, 563 (6th based on racial distinctions. Cir. 1998) (finding that "[a] defendant who is denied qualified immunity may file an interlocutory appeal with this Court 2. Issues of Law and Fact only if that appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation The Gardenhires argue that the facts, as they have alleged, of clearly established law.") (citations omitted). Mixed support their claim of selective enforcement. Applying the questions of fact and law are treated as questions of law. Anderson test, the couple contends that a reasonable jury Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999) (en could find, first, that Chief Schubert singled out the banc). Gardenhires for prosecution by arresting them and not Mary Della Sala, who was not involved in an interracial Here, the Court finds that it has jurisdiction to hear the relationship, but was otherwise similarly situated to the Defendant's interlocutory appeal on the issue of qualified Gardenhires. Second, the Gardenhires argue that a jury could immunity, as the question of whether there was probable find that Chief Schubert arrested them with a discriminatory cause for an arrest is a mixed question of law and fact. purpose, based on his “condescending glares” and the “get out Painter v. Robertson, 185 F.3d 557, 569 (6th Cir. 1999) of town” comment. Third, the jury could find that Chief (citing Ornelas v. United States, 517 U.S. 690, 696-98 Schubert’s actions had a discriminatory effect on an (1996)). In finding that the determination of probable cause identifiable group: the Gardenhires, an interracial couple, is a mixed question of law and fact, the Supreme Court in were arrested, while Ms. Della Sala, who is not involved in an Ornelas reasoned that: interracial relationship, was not. The Gardenhires’ argument stretches the facts beyond reason to fit their chosen legal The principal components of a determination of theory. reasonable suspicion or probable cause will be the events which first occurred leading up to the stop or search, and First, the Gardenhires and Ms. Della Sala were not similarly then the decision whether these historical facts, viewed situated on December 31, 1996. For most of that day, there from the standpoint of an objectively reasonable police was a police report implicating the Gardenhires in a crime; officer, amount to reasonable suspicion or to probable while they may not have had probable cause to arrest them, cause. The first part of the analysis involves only a the police were justified in treating them as suspects in a theft. determination of historical facts, but the second is a When the Gardenhires did eventually attempt to make a mixed question of law and fact: 'The historical facts are police report concerning Ms. Della Sala, they were already admitted or established, the rule of law is undisputed, and criminal suspects, putting their comments in the “suspect the issue is whether the facts satisfy the [relevant] making an excuse” category -- which police may choose to statutory [or constitutional] standard, or to put it another 10 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 23

way, whether the rule of law as applied to the established that the plaintiff make at least a prima facie showing that facts is or is not violated.' similarly situated persons outside her category were not prosecuted.” S temler v. City of Florence, 126 F.3d 856, 873 Ornelas, 517 U.S. at 696-97 (citing Pullman-Standard v. (6th Cir. 1997). Furthermore, “there is a strong presumption Swint, 456 U.S. 273, 289 n.19 (1982)). that the state actors have properly discharged their official duties, and to overcome that presumption the plaintiff must In making the determination of whether the right was present clear evidence to the contrary; the standard is a clearly established in this case, the Court must apply the facts demanding one.” Id. (citations omitted). The Gardenhires’ to determine the legal question of whether there was probable Equal Protection claim is based on the theory that Chief cause for an arrest. This Court will only rely on the Schubert selectively enforced Tennessee’s criminal laws by undisputed facts in making this determination. The arresting them on December 31, 1996 and refusing to undisputed facts are as follows: when the Gardenhires were investigate Ms. Della Sala. at their residence, Chief Schubert told them that they “needed to go” to the police station. The Gardenhires, while at the Appellant argues that the Gardenhires have not identified police station, were read their Miranda rights and questioned. a clearly established right which he violated on December 31, It is also undisputed that when the Gardenhires were with 1996, because they have not met their burden of producing a Chief Schubert at their store, Chief Schubert told the case showing that they have a constitutional right to have Gardenhires that they “needed to go” to the Justice Center; criminal laws enforced against other citizens. Appellant’s instructed them that they “needed to follow” a police officer argument misapprehends the doctrine of selective to the station; and advised them that they would be booked on enforcement. While it is true that states have no criminal charges and released on bond once they reached the constitutional duty to protect citizens from violence by private Justice Center. actors, see DeShaney v. Winnebago County Dept. of Soc. Serv., 489 U.S. 189, 195 (1989), it is clearly established that As for the determination of probable cause, the undisputed “the State may not, of course, selectively deny its protective facts before the Court are that Mary Della Sala claimed that services to certain disfavored minorities without violating the objects from her store were missing and that those objects Equal Protection Clause.” Id. at 197 n.3 (citing Yick Wo v. were visible in the store-front window of the Gardenhires' Hopkins, 118 U.S. 356 (1886)). store which was adjacent to Sala's store. Appellant also raises the argument that because Ms. What is in dispute in this case is whether Chief Schubert Gardenhire is Caucasian and admits to being the sole owner arrested the Gardenhires, and if he did arrest them, whether he of Uniquely Yours, neither Mr. nor Ms. Gardenhire can bring had probable cause to do so. Just as in Williams v. Mehra, the an Equal Protection claim. There are several flaws with this only "'facts' in dispute are the ultimate issues to be decided by premise. To begin, this is the first time Appellant has raised applying the law to the basic facts. . . ." 186 F.3d at 690. The the issue. Appellate courts are free to decline consideration determination of whether there was probable cause and of arguments made for the first time on appeal. See id. at 195 whether there was an arrest involves mixed issues of law and n.2. This argument also fails on substantive grounds. First, fact, which are treated as an issue of law, and vest this Court the Gardenhires’ Equal Protection claim stems not from Chief with jurisdiction to hear the present interlocutory appeal. Id. Schubert’s failure to protect Ms. Gardenhires’ store, but from at 690. the allegedly wrongful arrest of the couple. There is no dispute that Mr. Gardenhire is African-American; the jury 22 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 11

this context, the court should dismiss a case, or take other B. Fourth Amendment: The Right to be Free from appropriate action, if the defendant can prove that the Unreasonable Seizures prosecutor or investigator intentionally singled him out for punishment because of membership in a protected group or 1. State of the Law the exercise of a constitutionally protected right.” Id. “In our criminal justice system, the Government retains broad The Fourth Amendment guarantees that government discretion as to whom to prosecute.” Wayte v. United States, officials may not subject citizens to unreasonable searches or 470 U.S. 598, 607 (1985). Although such discretion is broad, seizures without proper authorization. An intrusion that lacks “it is not unfettered.” Selectivity in the enforcement of such authorization is presumptively unreasonable, “subject criminal laws is subject to constitutional constraints. In only to a few specifically established and well-delineated particular, the decision to prosecute may not be deliberately exceptions.” See Katz v. United States, 389 U.S. 347, 357 based upon an unjustifiable standard such as race, religion or (1967). For example, police only need a reasonable suspicion other arbitrary classification.” Id. at 608 (citations omitted). of criminal activity to conduct a brief investigatory detention. See Terry v. Ohio, 392 U.S. 1, 30 (1968). The determination “Selective enforcement can also lead to § 1983 liability if of “reasonableness” in a Terry stop context depends on a the plaintiff pleads ‘purposeful discrimination.’” Id.; see also balance between “the need to search [or seize] against the Oyler v. Boles, 368 U.S. 448, 456 (1962) (selective invasion which the search [or seizure] entails.” Id. at 21. enforcement is a federal constitutional violation if “based When a detention rises to the level of a full-fledged arrest, upon an unjustifiable standard such as race, religion, or other however, the Fourth Amendment demands that the seizure be arbitrary classification”). Discrimination is “purposeful” if it supported by probable cause. See Dunaway v. New York, 442 is intended to accomplish some “forbidden aim.” See U.S. 200, 212-14. Futernick, 78 F.3d at 1056. Such “forbidden aims” include intentional selective enforcement because of race, nationality, There is no question that in 1996 “the law was clearly religion, gender or “other arbitrary classification.” Id. at established that, absent probable cause to believe that an 1056-57. offense had been committed, was being committed, or was about to be committed, officers may not arrest an individual.” This Court has established a three-part test for determining See Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. if selective enforcement has occurred: 1999)(discussing the state of the law in 1991). Thus, the only questions as to the Gardenhires’ Fourth Amendment claim are First, [an official] must single out a person belonging to those of fact: did Chief Schubert “arrest” the Gardenhires on an identifiable group, such as those of a particular race or December 31, 1996? If so, did the arrest lack probable cause? religion, or a group exercising constitutional rights, for If a reasonable jury could answer “yes” to both questions, this prosecution even though he has decided not to prosecute case must proceed to trial.2 persons not belonging to that group in similar situations. Second, [the official] must initiate the prosecution with a discriminatory purpose. Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to. 2 These "facts" in dispute in the present case reach the ultimate issues to be decided and are not those factual disputes that would "divest the United States v. Anderson, 923 F.2d 450, 453 (6th Cir. 1991). court of jurisdiction." See Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. With regard to the first element, “it is an absolute requirement 1999). 12 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 21

2. Mixed Question of Law and Fact making the determination whether probable cause to arrest exists.” Criss, 867 F.2d at 262. Here, a reasonable jury could a. Whether Officer Schubert “Arrested” the find that Chief Schubert did not have probable cause, based Gardenhires on the totality of information he had at the time, to arrest the Gardenhires. To constitute a seizure of the person, just as to constitute an arrest, there must be either the application of physical force, Furthermore, the jury will have to analyze the probable however slight, or, where that is absent, submission to an cause question in light of when they conclude that the arrest officer’s “show of authority” to restrain the subject’s liberty. occurred, because the factors in the probable cause See California v. Hodari D., 499 U.S. 621, 626-28 (1991). In determination shifted as the day went on. As the police this case, it is undisputed that the officers never physically officers gathered more facts about the alleged crime, the touched the Gardenhires. Thus, in determining whether totality of the circumstances changed. For example, if a jury couple was actually arrested, we must focus on whether the finds that the arrest took place when the officers asked the Gardenhires submitted to Officer Schubert’s “show of Gardenhires to go to the police station, the probable cause authority.” “The test for existence of a ‘show of authority’ is determination centers on Ms. Della Sala’s report and the an objective one: not whether the citizen perceived that he siting of the “stolen” items in the window. If, however, the was being ordered to restrict his movement, but whether the jury finds that the arrest occurred after the police visited officer’s words and actions would have conveyed that to a Uniquely Yours with the Gardenhires, they will have to reasonable person.” Id. at 628. A person has been “seized” consider the Gardenhires’ statements at the police station, and within the meaning of the Fourth Amendment when “in view the fact that the officers noticed at their store the suspicious of all the circumstances surrounding the incident, a reasonable placement of the supposedly stolen items and heard the person would have believed that he was not free to leave.” Gardenhires’ allegation that they had been robbed. With such United States v. Mendenhall, 446 U.S. 544, 544 (1980). fluid, fact-specific elements at the heart of this probable cause inquiry, it is a question properly reserved to the fact-finding Chief Schubert contends that because he never formally province of a jury. The district court’s finding on this issue arrested the Gardenhires, the guarantees of the Fourth is, therefore, AFFIRMED. Amendment were never implicated. This argument fails. The Fourth Amendment’s protections are not limited to traditional C. Fourteenth Amendment: Selective Enforcement arrests: “a clear deprivation of liberty caused by law enforcement officers without formal words is nonetheless an 1. State of the Law arrest.” See Centanni v. Eight Unknown Officers, 15 F.3d 587, 590 (6th Cir. 1994) (citations omitted). The Supreme “Sometimes the enforcement of an otherwise valid law can Court has explained: be a means of violating constitutional rights by invidious discrimination. To address this problem, courts have There is no doubt that at some point in the investigative developed the doctrine of selective enforcement.” Futernick process, police procedures can qualitatively and v. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir. 1996). quantitatively be so intrusive with respect to a suspect’s Selective enforcement claims are judged according to freedom of movement and privacy interests as to trigger ordinary Equal Protection standards, which require a the full protection of the Fourth and Fourteenth petitioner to show both a discriminatory purpose and a Amendments. And our view continues to be that the line discriminatory effect. See id. Usually, claims of selective is crossed when the police, without probable cause or a enforcement arise as a defense in criminal prosecutions. “In 20 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 13

In her Dissent, Judge Batchelder states that the Court has warrant, forcibly remove a person from his home or other added a "duty to investigate" as a new factor to be used in place in which he is entitled to be and transport him to determining probable cause. The Dissent finds that the police the police station, where he is detained, although briefly, had probable cause irrespective of when the Gardenhires were for investigative purposes. We adhere to the view that arrested. The factors the Dissent puts forward as establishing such seizures, at least where not under judicial probable cause include: that the allegedly stolen items were supervision, are sufficiently like arrests to invoke the visible through the Gardenhires' shop; that the stolen items traditional rule that arrests may constitutionally be made were actually located in the Gardenhires' shop, and finally, only on probable cause. that the placement of the allegedly stolen items was suspicious. Citing Criss v. City of Kent, 867 F.2d 259 (6th Hayes v. Florida, 470 U.S. 811, 815-16 (1985) (citations Cir. 1998), the Dissent states that probable cause is not omitted). Thus, the fact that Chief Schubert did not formally eliminated by the fact that the Gardenhires claimed they were arrest the Gardenhires does not resolve the issue of whether innocent. their detention amounted to an arrest requiring probable cause. Contrary to the Dissent's assertion, this Court is not adding a duty to investigate as a factor for the establishment of Instead, the question is whether a reasonable jury could find probable cause. This Court recognizes that an officer does that a person in the Gardenhires’ position would have felt free not have to investigate independently every claim of to leave. We agree with the district court’s analysis in innocence. See Baker v. McCollan, 443 U.S. at 145-56. But, concluding that a jury could find that a reasonable person in this axiom does not suggest that an officer has no duty to the Gardenhires’ position would not have felt free to leave. investigate an alleged crime before making an arrest. A The undisputed facts the district court considered were that police officer has probable cause only when he discovers Chief Schubert: (1) told the Gardenhires at their residence reasonably reliable information that the suspect has they “needed to go” to the police station; (2) read them their committed a crime. See Beck, 379 U.S. at 91. And, in Miranda rights at the police station; (3) questioned the obtaining such reliable information, an officer cannot look Gardenhires extensively at the police station; (4) told the only at the evidence of guilt while ignoring all exculpatory Gardenhires later, at the store, that they “needed to go” to the evidence. Rather, the officer must consider the totality of the Justice Center; (5) instructed them that they “needed to circumstances, recognizing both the inculpatory and follow” a police officer to the station; and (6) advised the exculpatory evidence, before determining if he has probable Gardenhires that they would be booked on criminal charges cause to make an arrest. See Dietrich, 167 F.3d at 1012. and released on bond. While it is true that “[a] valid arrest based upon then-existing probable cause is not vitiated if the suspect is later found Based on these facts, a jury could find that a reasonable innocent,” “[a] suspect’s satisfactory explanation of person in the Gardenhires’ position would have felt that they suspicious behavior is certainly a factor which law were not free to leave. A police officer’s statement that “you enforcement officers are entitled to take into consideration in need to go” somewhere carries substantial authoritative weight. We think very few people could hear such a directive from a police officer and still think they were free to act warrant a finding that the Gardenhires had committed an offense or to otherwise. Once the police removed the Gardenhires from establish probable cause. See Beck v. Ohio, 379 U.S. at 91. Therefore, their home to the police station, the encounter took on an the Chief is not entitled to summary judgment on the basis of qualified arrest-like nature. See Hayes, 470 U.S. at 816 (holding that immunity. 14 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 19

the line separating a Terry stop and an arrest is crossed when Perhaps this investigation would reveal additional evidence of police “forcibly remove a person from his home or other place theft sufficient to establish probable cause. But, standing in which he is entitled to be and transport him to the police alone, the woman’s mere allegation that the car was hers station, where he is detained, although briefly, for would not create probable cause that the man stole the investigative purposes”). The custodial nature of the police Porsche. station encounter intensified with the time the Gardenhires spent there and the fact that Chief Schubert read them their The foregoing hypothetical is almost identical to the facts Miranda rights. See United States v. Obasa, 15 F.3d 603, 608 in this case. Chief Schubert had the following information (6th Cir. 1994) (holding police officer knew that Miranda when he began investigating the Gardenhires: that Mary Della rights are required to be given only to individuals who are in Sala claimed that several items from her store were missing, custody, and “[a]lthough giving Miranda warnings to a and that these items were visible in the store-front windows detainee may not automatically convert a Terry stop into an of the adjacent store. We believe a reasonable jury could find arrest, it is evidence that the nature of the detention has grown that the police officers did not have probable cause to arrest more serious”). The most compelling factor may be Officer the Gardenhires on this information alone. Certainly, there Schubert’s telling the Gardenhires, at their store, that they was enough evidence to justify a Terry stop; the police were were going to be booked and released on bond once they authorized to ask the Gardenhires if the items belonged to reached the Justice Center. We do not think a reasonable them, to inquire as to why the items were in their store, and to person would believe he is free to leave after a police officer gather information about the relationship between Ms. Della has stated that he must go to a government center to be Sala and Ms. Gardenhire. But, Ms. Della Sala’s mere “booked” and that he would have to post bond to be released. allegation that she owned the items in Ms. Gardenhire’s store- front was not enough to justify an arrest. Further In United States v. Obasa, 15 F.3d 603 (6th Cir. 1994), investigation was necessary at that point. And if the officers under facts similar to this case, this Court held that the police had asked further questions, they would have learned that Ms. had in fact “arrested” the suspect. In Obasa, a police officer Gardenhire and Ms. Della Sala shared the facilities of both stopped a man in an airport, searched his clothing, gave him stores and were in the process of trading store fronts. Such Miranda warnings and transported him to the police station in information would lead a reasonable officer to consider that a police cruiser. The Court held that, although the police something other than a theft – such as misplacement or a never formally arrested the suspect, under these circumstances simple misunderstanding – had occurred.5 the officer had gone beyond a mere Terry stop and had arrested the man. Except for the suspect’s transportation in a police cruiser, the facts in Obasa are nearly identical to those 5 presented in this case. Indeed, the Gardenhires were The Dissent finds that Chief Schubert should be granted qualified immunity even if the information the Chief had at the time was not transported from their home, rather than an airport, enough to justify an arrest of the Gardenhires. The Dissent reasons that implicating a higher level of intrusiveness. See Hayes, 470 in 1996, when the Chief arrested the Gardenhires, Criss was the "clearly U.S. at 815-16. established law," and did not require police officers to investigate before arresting an individual who was in possession of items that were Additionally, the district court only considered the identified as stolen. However, following Terry v. Ohio, 392 U.S. at 30, also clearly undisputed facts in making its arrest determination. There are established law at the time of the incident, this Court finds that Chief disputed facts, such as Ms. Gardenhire’s alleged attempt to Schubert only had a reasonable suspicion of criminal activity which call a lawyer, which a jury should hear. The facts we have on would only justify a brief investigatory detention. Id. Chief Schubert did not have the requisite “reasonably trustworthy information” sufficient to 18 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 15

street signs – a good almost impossible for private citizens to the record before us are the mere skeleton of the story, which obtain legally – the police in Criss could have been almost must be animated by the details of what happened when the certain that someone in the house had committed a crime. police officers arrived at the Gardenhires home, spoke with Even if the officers had believed the suspect’s statement that them at the police station and interacted with them later at the he had not stolen the signs, the suspect still could have been store. Other relevant points of inquiry include how long the guilty of other crimes, such as the receipt of stolen property, Gardenhires were detained at the police station, and what or aiding and abetting the theft. Here, if the Gardenhires’ exactly the officers said to the Gardenhires at different points statements were true, it would mean that they were not guilty during the investigation. Because no physical force was of any crime. Moreover, there was evidence in addition to the applied, the officers’ words at each location will be essential Gardenhires’ bare statements, that would lead a reasonable in determining whether a reasonable person would have felt officer to rethink whether the Gardenhires had committed a free to leave. And, of course, the jury must decide the extent crime. The obvious placement of the supposedly stolen goods to which they believe the Gardenhires’ version of events. and the common doorway between the shops should have The issue of whether Chief Schubert arrested the Gardenhires, triggered at least a suspicion that the “theft” was not what it therefore, is one which must be presented to a jury. appeared. b. Whether Chief Schubert had probable cause to Unlike the street signs in Criss, the items in Uniquely arrest the Gardenhires Yours are not the type that one must presume are stolen. Guitars, banjos, televisions and VCRs are commonly -- and Any arrest, whether formal or de facto, requires probable legally -- owned by countless people. In this case, all the cause. See Centanni, 15 F.3d at 602. Thus, if a jury police had was the bare allegation by Mary Della Sala that determines that Chief Schubert did arrest the Gardenhires, the these items belonged to her. An allegation by one individual next inquiry must be whether he had probable cause to do so. that items in another’s possession actually belong to her is not Generally, probable cause exists when the police have enough to create probable cause that a crime has been “reasonably trustworthy information . . . sufficient to warrant committed. Consider the following situation: a woman flags a prudent man in believing that the petitioner had committed down a police officer and points out a Porsche being driven or was committing an offense.” Beck v. Ohio, 379 U.S. 89, by a young man, which the woman claims is her car and 91 (1964). “Probable cause determinations involve an which has been stolen by the man. Would the officer have examination of all facts and circumstances within an officer's probable cause to arrest the Porsche’s driver at that point? knowledge at the time of an arrest.” See Dietrich, 167 F.3d We think not. The officer would have a reasonable suspicion at 1012. “In general, the existence of probable cause in a of criminal activity justifying a brief investigatory detention § 1983 action presents a jury question, unless there is only pursuant to Terry v. Ohio, 392 U.S. at 30. But, without more, one reasonable determination possible.” Pyles v. Raisor, 60 the officer would not yet have the requisite “reasonably F.3d 1211, 1215 (6th Cir. 1995). Here, viewing the facts in trustworthy information” sufficient to warrant a prudent man a light most favorable to the Gardenhires, we must determine in believing that the young man driving the Porsche had whether a jury could conclude that a reasonable officer could committed or was committing an offense. See Beck v. Ohio, have believed that the couple had probably committed or were 379 U.S. at 91. Rather, the police officer would have the committing a crime. There is substantial evidence supporting right and duty to detain and question the driver for a short each party’s position. time: to ask if the car was his, research his licence plate, and request to see his drivers licence, registration and insurance. 16 Gardenhire, et al. v. Schubert No. 98-6434 No. 98-6434 Gardenhire, et al. v. Schubert 17

As the Gardenhires point out, there were factors present at open windows of an apartment, City of Kent street signs the time of the initial police investigation which may have hanging on the walls of the plaintiff’s living room. The made it unreasonable for Chief Schubert to believe that the officers went in and spoke with the plaintiff, who admitted Gardenhires had committed any crime. For example, the that he was a co-tenant of the house, and knew that the signs placement of the allegedly stolen goods was suspicious. It is were hanging in his residence, but stated that they belonged unlikely that one store owner would steal goods from another to his roommate. The officers arrested him for receipt of and then leave those goods in the window of her own store- stolen property. In fact, the plaintiff’s roommate, alone, had front. In fact, based on where the goods were found, two of stolen the street signs. The plaintiff brought suit against the the initial investigating officials believed that the Gardenhires officers, arguing that his innocence of the crime, combined had been set up: both Officer Davis and Magistrate Wheeler with the officers’ failure to investigate his involvement, meant thought the alleged theft was a set-up. Even Chief Schubert there was no probable cause to arrest him. The Court found admits now that the placement of the items suggests that the that the officers had probable cause to arrest the plaintiff. The Gardenhires had not committed a theft.3 And, the Court reasoned: Gardenhires tried to explain to the officers then that they had not committed a crime, but had been the victims of one. The A suspect’s satisfactory explanation of suspicious officers did not bother to investigate the Gardenhires’ claim,4 behavior is certainly a factor which law enforcement which, in hindsight, appears to have been a reasonable one. officers are entitled to take into consideration in making the determination whether probable cause to arrest exists. On the other hand, there was substantial inculpatory A policeman, however is under no obligation to give any evidence against the Gardenhires. The officers had received credence to a suspect’s story nor should a plausible a report of theft and discovered the very items described in explanation in any sense require the officer to forego that report in the Gardenhires’ store. The Gardenhires arrest pending further investigation if the facts as initially admitted to having a key to Ms. Della Sala’s store and to discovered provide probable cause. having Ms. Della Sala’s flamingo dish at their house. Id. at 262. “To hold otherwise,” the Court explained, “would It is true, as the appellant notes, that in Criss v. City of be to allow every suspect, guilty or innocent, to avoid arrest Kent, 867 F.2d 259 (6th Cir. 1988), this Court found that simply by claiming ‘it wasn’t me.’” Id. The Criss decision officers in a similar situation did have probable cause to arrest echoes the Supreme Court’s prior reasoning in Baker v. the suspect. In Criss, two police officers noticed, through the McCollan, 443 U.S. 137 (1979), that “we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence.” Id. at 145-56 (1979); see also Coogan v. City of 3 Chief Schubert has never admitted that he believed at the time of his Wixom, 820 F.2d 170 (6th Cir. 1987) (“Where there are investigation that the Gardenhires were set up – despite the Gardenhires’ sufficient facts to warrant a prudent person in a defendant’s claim to the contrary. position to believe that a crime was committed and that the 4 person charged committed it, the failure to make a further The Gardenhires argue that because Ms. Gardenhire and Ms. Della investigation does not negate probable cause”). Sala were in the process of trading store-fronts, Chief Schubert had no probable cause to believe the items found in Uniquely Yours were stolen. The couple has not, however, provided any evidence demonstrating that While instructive, however, the Criss case is not entirely Chief Schubert was at any time made aware of the women’s business analogous to this one. Because the suspicious items were city arrangement.