Holland v. Portland

• Court: Court of Appeals for the First Circuit
• Decided: December 6, 1996
• Docket: 96-1226
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1226



                                   RORY C. HOLLAND,



                                Plaintiff, Appellant,



                                          v.



                  CITY OF PORTLAND, SULLIVAN RIZZO and BRUCE COFFIN,



                                Defendants, Appellees.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                       [Hon. Gene Carter, U.S. District Judge]
                                          ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________



                                Boudin, Circuit Judge,
                                        _____________



                              and Lisi,* District Judge.
                                         ______________



                                 ____________________



            Stuart W. Tisdale for appellant.
            _________________

            John E.  Sedgewick with whom  Berman & Simmons, P.A.  was on brief
            __________________            ______________________

        for appellees.


____________________



                                   December 6, 1996

                                 ____________________


____________________



        *Of the District of Rhode Island, sitting by designation.



BOUDIN, Circuit Judge.   Rory Holland  sued the City  of
                         _____________



            Portland,  Maine, and two  Portland police officers, Sullivan



            Rizzo  and Bruce  Coffin, for  damages and  injunctive relief



            under  42  U.S.C.   1983  and  Maine tort  law  for Holland's



            allegedly  wrongful false  arrest and  detention.   Following



            discovery, the district court  granted the defendants' motion



            for summary  judgment on  all of  Holland's claims.   Holland



            appeals   from   the   court's   judgment    dismissing   his



            section 1983, but not his state law, claim.



                 The  facts,  taken most  favorably  to  Holland, are  as



            follows.   At about 1:20  p.m. on October  18, 1994, Portland



            police  radio traffic reported a  robbery at the  Key Bank in



            Canal Plaza.  The police dispatcher described the suspect  as



            a black male, about 6'2"  tall, 185 pounds, unshaven, wearing



            a brown jacket, possibly suede, and a black hat, and carrying



            a black leather  briefcase.  The dispatcher reported that the



            suspect  had fled  on  foot and  did  not indicate  that  any



            vehicle had been involved.



                 Shortly after 2:00  p.m. on  the same  day, Holland  was



            driving  a  Subaru to  the  Cumberland  County Courthouse  in



            Portland.  He drove past  a bicycle patrolman, Daniel Knight,



            and  turned the  corner.  Knight  had heard  the dispatcher's



            report about the robbery.  When he saw the Subaru, he noticed



            that  the driver, Holland, was a tall, thin black man wearing



            a brown  or black jacket and  a hat who appeared  to meet the


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description  of the suspect, and he also noticed that the car



            had no back window.



                 Knight reported to the police dispatcher, "Ten-twenty on



            Rory Holland, he's in the area."  Although Knight had not met



            Holland, he  thought that the Subaru  driver fit descriptions



            of Holland that  Knight had  seen in police  bulletins.   The



            dispatcher asked  if Holland's  clothing matched that  of the



            reported suspect.  Knight did not respond, but the dispatcher



            immediately sent  backup police units and  indicated that the



            suspect was a "possible match."



                 After  turning the  corner  Holland parked  his car  and



            started walking across the street towards the courthouse.  He



            wore a  brown tweed jacket and  a brown leather  hat, and was



            carrying a black nylon briefcase  and a white canvas bookbag.



            Knight  stopped  Holland  in  the crosswalk  and,  addressing



            Holland  by  name, said  that a  bank  robbery had  just been



            committed and  asked  where Holland  had been.   Knight  also



            asked about  the contents of Holland's bag.  Holland remained



            silent. 



                 Coffin, Rizzo,  and another officer soon  arrived at the



            scene, and  the officers then  walked up to  Holland, backing



            him up to  his car.  Coffin was familiar  with Holland's past



            history   from  information  circulated   within  the  police



            department and  thought that  the Subaru driver  was Holland.



            Rizzo had  also heard  about Holland in  department briefings


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and  previously had seen a photograph of Holland.  Coffin and



            Rizzo then began to ask Holland questions concerning the bank



            robbery.



                 Although  Rizzo  told  Holland  that he  was  not  under



            arrest,  and that the police  just wanted to  learn about the



            bank robbery,  Holland remained silent.  Noticing the missing



            rear  window in Holland's car,  Rizzo asked Knight if Holland



            had  been driving.    When Knight  said  that he  had,  Rizzo



            allegedly said, "well, then we  can get him for not having  a



            license  or something or other."  Rizzo then said, "Rory, you



            know, I  can arrest you if you don't show me a valid driver's



            license and tell me where you live . . . ."



                 Holland continued to remain silent.  Rizzo asked Holland



            several more times to  produce his license and to  tell Rizzo



            where he lived, saying that otherwise Rizzo would  arrest him



            "for failure to  identify yourself to me."  Eventually, Rizzo



            told Holland that he was under arrest.   At that point, Rizzo



            and Coffin patted down Holland, removed his wallet, and found



            a driver's license in  the wallet that identified  the driver



            as Rory Holland.  Rizzo then allegedly said,  "I guess we got



            a license in here, I guess we can't get you for that."



                 Coffin and  Rizzo took Holland to  the Cumberland County



            Jail.  According to Holland, some officers referred to him as



            a  bank robbery suspect.   Holland refused to  speak with the



            booking  officer or others at the jail.  Holland was released


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on  bail after  the police  apprehended another  bank robbery



            suspect.   Ultimately, no  charges of any  kind were  pressed



            against Holland.



                 Thereafter,  Holland  brought the  present  suit against



            Rizzo, Coffin  and the  city.  As  the basis for  his section



            1983 claim, Holland alleged that his arrest had  violated the



            Fourth Amendment's protection  against unreasonable  searches



            and  seizures  made  applicable  to the  states  through  the



            Fourteenth  Amendment.   Specifically, the  complaint alleged



            that the police lacked  probable cause to arrest him  for any



            reason,  that the actual charge  was a pretext  to detain him



            for questioning about  the bank robbery, and  that the arrest



            was retaliation for his refusal to speak.  



                 In the  course of discovery Holland--who  had previously



            been in disputes with  the Portland police--learned that some



            weeks  before   the   arrest,  the   police  had   circulated



            information  about him  in  so-called crime  alert bulletins.



            Knitting  the bulletins  together with the  disputes, Holland



            suggested that his arrest  was part of a general  campaign of



            harassment directed against  him by the police.   Holland did



            not amend his complaint.



                 On  January 25,  1996,  the district  court granted  the



            defendants' motion for summary  judgment.  The district court



            ruled that  the police had  probable cause to  arrest Holland



            for failing to identify  himself or provide his license.   It


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called  the charge of harassment "hollow."  And it ruled that



            the city was not liable because, quite apart from the lack of



            a municipal custom or policy, this arrest had been justified.



            Holland now appeals.



                 1.  On review of a grant of summary judgment, this court



            considers the matter de novo, taking the facts most favorably
                                 _______



            to the non-moving party.  St. Hilaire v. City of Laconia,  71
                                      ___________    _______________



            F.3d 20, 24 (1st  Cir. 1995), cert. denied,  116 S. Ct.  2548
                                          ____________



            (1996).   We  begin  by considering  whether  the police  had



            probable cause to arrest  Holland--that is, whether the facts



            known  to the police  indicated that Holland  had committed a



            criminal offense.  The parties agree that Holland was charged



            with  violating  29  Me.  Rev.  Stat.  Ann.     2501   (later



            renumbered) which said:



                    Whoever, while operating  a vehicle in violation

                 of this [motor vehicle regulations] Title, fails or

                 refuses, when requested by an officer authorized to

                 make arrests, to give  the operator's correct name,

                 address  and date of birth  is guilty of  a Class E

                 crime.



                   At first  blush, the literal language  might appear to



            make the  officers' authority depend upon  whether the driver



            was  actually operating in violation  of state law.   But the



            Maine Supreme Judicial Court  has interpreted section 2501 to



            permit an  officer to stop a  driver and ask his  name on the



            basis of an  articulable suspicion that  the driver has  done



            something wrong.   State v. Littlefield, 677 A.2d  1055, 1057
                               _____    ___________



            (Me. 1996).  Indeed, even  if it then becomes clear that  the


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suspected violation  had not occurred, the  officer may still



            insist  on  seeing  the  driver's  license and  registration.



            State v. Hill, 606 A.2d 793, 794-95 (Me. 1992).  
            _____    ____



                 Holland may  not have violated any motor  vehicle law by



            driving with a  missing rear  window.  But  the missing  rear



            window,  or  any  other similar  non-cosmetic  damage,  could



            reasonably  create a suspicion of  such a violation.   See 29
                                                                   ___



            Me.  Rev.  Stat.  Ann.    2503(1)(D)  (requiring  that  motor



            vehicle equipment "[n]ot pose a hazard . . . .").  Thus, when



            the officers asked Holland  to identify himself, section 2501



            required  Holland to provide  his name, address,  and date of



            birth--or face arrest.  See 17-A Me. Rev. Stat.  Ann.   15(B)
                                    ___



            (authorizing  arrest  for  Class  E crimes  committed  in  an



            officer's presence).



                 Holland does  not challenge the initial  stop, see Terry
                                                                ___ _____



            v. Ohio, 392 U.S. 1 (1968), nor argue that the statute itself
               ____



            is unconstitutional.  Cf. California  v. Byers, 402 U.S.  424
                                  ___ __________     _____



            (1971).  He  instead argues that the police  had no reason to



            request his name since they already knew it, citing Rodriguez
                                                                _________



            v. Comas,  888 F.2d 899 (1st  Cir. 1989).  But  where the law
               _____



            requires  the motorist  to supply  his name,  the police  can



            reasonably  insist  upon confirmation.   Further,  the police



            also sought  Holland's  present address,  which  the  statute



            required  him to provide, and there is no indication that the



            police had this information.


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Holland's reliance on  Rodriquez is  misplaced.   There,
                                        _________



            Rodriguez  was arrested on a charge of obstruction of justice



            because he declined  to provide  his name and  address to  an



            officer.   Rodriquez was well known to the officer, and there



            was no separate statute--such  as Maine's motor vehicle law--



            requiring that he provide  his name and address.   This court



            held only that the refusal could not even arguably constitute



            "obstruction of  justice" where  the refusal to  provide this



            already-known information neither could nor did  obstruct the



            officer's investigation.  888 F.2d at 902.



                 Quoting language from  other cases, Holland  also claims



            that police officers  may not  arrest a suspect  if they  can



            obtain the  information that  they seek through  a reasonable



            investigation.   See Sevigny  v. Dicksey,  846 F.2d  953 (4th
                             ___ _______     _______



            Cir.  1988); BeVier v. Hucal,  806 F.2d 123  (7th Cir. 1986).
                         ______    _____



            But  these  cases impose  no  such  limitation; rather,  they



            demand  that officers  undertake reasonable  investigation to



            determine whether probable cause  exists to arrest a suspect.
                      _______



            Sevigny, 846 F.2d at  957-58; BeVier, 806 F.2d at 127.  Here,
            _______                       ______



            Holland  committed  the  offense   in  the  presence  of  the



            officers.



                 2.   Although  Holland  devotes  much  of his  brief  to



            disputing  the police claim of probable cause, he has a fall-



            back contention less easily  resolved.  Fairly construing his



            arguments,  we  take him  to  challenge the  validity  of his


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arrest  even  assuming  probable  cause  (which  he  disputes



            strongly  but we  find to be  established).  In  sum, he says



            that the police  nominally arrested him for  refusing to give



            his  name and address but  that this was  a "pretext" because



            the arrest was motivated by other, more sinister objectives.



                 On Holland's  version of events, which  must be credited



            at  this stage,  see St.  Hilaire,  71 F.3d  at 24,  there is
                             ___ ____________



            reason for thinking that  the police did not care  much about



            the  missing car window or Holland's failure to give his name



            or address.  Indeed,  a jury, after a full  trial, might well



            find  that  the  police  arrested  Holland  for  a  technical



            violation  in order  to pursue  their investigation  into the



            bank robbery,  suspecting Holland  of complicity  but perhaps



            lacking enough evidence to arrest him on this charge.



                 The term "pretext" is sometimes used, as Holland uses it



            here,  with the  assertion that  the police  may not  make an



            arrest otherwise based on probable cause when  their true aim



            is  to forward  some  other investigation.    But aside  from



            dicta, it is  hard to  find recent holdings  to support  this



            proposition; one  exception is the Eleventh  Circuit.  United
                                                                   ______



            States v.  Valdez, 931 F.2d  1448, 1450-51 (11th  Cir. 1991).
            ______     ______



            Our  own  circuit,  like  several others,  has  rejected  the


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inquiry into motive.  United States  v. McCambridge, 551 F.2d
                                  _____________     ___________



            865, 869-70 (1st Cir. 1977).1



                 In all  events, the  Supreme Court recently  settled the



            matter in Whren  v. United  States, 116 S.  Ct. 1769  (1996),
                      _____     ______________



            holding  that   "[s]ubjective  intentions  play  no  role  in



            ordinary, probable-cause Fourth Amendment  analysis."  Id. at
                                                                   ___



            1774.   There, the  Court explicitly  rejected the very  test



            used by the Eleventh Circuit in Valdez which asks whether the
                                            ______



            officer  "would" have  made  the stop  or  arrest absent  the



            "other" motive.  See  id. at 1774-75; see also  United States
                             ___  ___             ________  _____________



            v. Robinson,  414 U.S.  218, 221 n.1  (1973) (lawful  traffic
               ________



            violation arrest was not unconstitutional, despite claim that



            it was "a mere pretext for a narcotics search").



                 The conflicting policy concerns are obvious.  On the one



            hand,  motor vehicle  operation  often gives  rise to  fairly



            minor  violations, making it easy  for the police  to find an



            excuse; on  the  other hand,  the  violation does  provide  a



            bright  line standard  while an  inquiry into  actual motive,



            directly or indirectly, invites all kinds  of diversion.  See
                                                                      ___



            Whren, 116 S. Ct. at 1774-75.  Further, "pretextual" stops or
            _____



            arrests, where  probable cause  exists and  the motive  is to


____________________



                 1To the annoyance of  commentators, the dominant view in

            the  circuits  has favored  a strictly  objective test  as to

            whether  probable cause justifies a search or an arrest.  See
                                                                      ___

            1 LaFave, Search and  Seizure   1.4(e), at 120-21  & n.61 (3d
                      ___________________

            ed. 1996).



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investigate another crime, may not seem  all that sinister to



            the Justices, who were unanimous in Whren.
                                                _____



                 How  far  Whren would  extend  in  the face  of  dubious
                           _____



            motives or other constitutional  concerns is a more difficult



            question,  and one  not entirely  avoidable here.   Holland's



            version  of events suggests that the police aimed not only to



            hold  him for further investigation  but also that the arrest
                                                     ____



            itself was  retaliation for  his refusal to  answer questions



            about the robbery.  According to Holland, after he refused to



            answer any questions about the bank  robbery, Rizzo said that



            because  Holland had been driving, "well, then we can get him



            for not having  a license  or something or  other."   Holland



            further asserted  that Rizzo  was "obviously upset  and angry



            with me  that I would  not speak  with him at  all about  the



            robbery."



                 Holland's  brief barely refers  to the  Fifth Amendment;



            and the  law on  the relationship between  police questioning



            and   the   privilege   against  self-incrimination   is   an



            embarrassing tangle.   Historically, the privilege and police



            questioning were unconnected, see 8 Wigmore, Evidence   2252,
                                          ___            ________



            at 328-29  (McNaughton rev.  ed. 1961);  and the  more modern



            blurring of lines has left unclear whether the privilege  can



            ever be  violated by such questioning  where no incriminating



            statement is thereafter used  in a proceeding.  See  Wiley v.
                                                            ___  _____


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Mayor and City Council of Baltimore, 48 F.3d 773, 777-78 (4th
            ___________________________________



            Cir.) (Powell, J.) cert. denied, 116 S. Ct. 89 (1995).2
                               ____________



                 Even  if the  Fifth Amendment  is put  to one  side, the



            defendants  do  not  suggest   that  Holland  had  any  legal



            obligation to  answer questions  about the robbery.   Compare
                                                                  _______



            Brown v. Texas, 443 U.S. 47, 52-53  (1979).  While the police
            _____    _____



            did not purport  to arrest Holland for refusing to cooperate,



            the facts might permit  a jury to think  that this was  their



            underlying  motivation.    Yet  assuming  this  premise,  the



            question  remains  whether  such   a  motive  for  an  arrest



            otherwise justified  by probable cause alters  the message of



            Whren.
            _____



                 In  our view, it does not.  The police, prosecutors, and



            courts constantly make judgments--including decisions  not to



            prosecute or to permit or impose a reduced sentence--based on



            an assessment  of an individual's cooperation.   The decision



            to arrest,  where probable  cause exists, is  a discretionary



            one informed  by many  considerations.   And  any attempt  to



            untangle  the  ascribed motive  from  a skein  of  others, in



            prompting an  arrest justified  by objective  probable cause,


____________________



                 2Of course,  Holland never  asserted the  privilege when

            questioned, as  is customarily required.    The Supreme Court

            has  said that  this  requirement may  not  apply in  police-

            station  questioning  or  like  interrogation,  Minnesota  v.
                                                            _________

            Murphy, 465  U.S. 420, 429-30 (1984),  but shortly thereafter
            ______

            it ruled that one held briefly  in a traffic stop was not "in

            custody" for purposes  of Miranda.  Berkemer v.  McCarty, 468
                                      _______   ________     _______

            U.S. 420, 440 (1984).



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would  invite  exactly  the  inquiry into  police  motivation



            condemned by Whren.
                         _____



                 Actual motive sometimes does play a role in section 1983



            actions.   E.g., Waters  v.  Churchill, 511  U.S. 661  (1994)
                       ____  ______      _________



            (discharge  in retaliation  for exercise  of  First Amendment



            rights).   But in evaluating  arrests, the Supreme  Court has



            given  primacy  to  the   Fourth  Amendment's  own  objective



            standards,  even  where other  constitutional bases  might be



            invoked.  Thus, the Court recently rejected an attempt to use



            substantive  due process  as a  more favorable  framework for



            assessing a claim, at least insofar  as it was deemed one for



            unlawful detention.  Albright v. Oliver, 510 U.S. 266, 274-75
                                 ________    ______



            (1994).



                 This does not mean  that probable cause forecloses every



            possible  challenge  to an  arrest.    Whren itself  strongly
                                                   _____



            implies  that an  equal  protection challenge  to an  arrest,



            despite probable  cause existing, might  yet be  entertained,



            although the court does not say what facts would be needed to



            support such a challenge.  116 S. Ct. at 1774.   An objective



            showing  that (for example)  only blacks or  Asians were ever



            arrested for a specific,  widely committed offense would pose



            a different  case than Whren.   See  Yick Wo v.  Hopkins, 118
                                   _____    ___  _______     _______



            U.S. 356 (1886).



                 This brings us to Holland's final claim of  ascribing an



            illicit  motive for the arrest.  It is evident from Holland's


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deposition that he himself  thinks (based on prior incidents)



            that he was a target of general police harassment, resting in



            part  on the  fact he  is black.   But  the racial  charge is
                                                        ______



            unsubstantiated  by anything we can find in the record and is



            not  directly urged in Holland's appellate brief.  We note it



            only to stress that our decision does not reach the difficult



            issues  that might  be raised  by a  substantiated  charge of



            racial discrimination.   Compare United States v.  Armstrong,
                                     _______ _____________     _________



            116 S. Ct. 1480, 1486-88 (1996).



                 Putting aside racial motives,  we note that the district



            court deemed  the entire  harassment  charge unsupported  and



            declined to discuss it at length.   On the other hand, if one



            accepts  Holland's deposition testimony, there were obviously



            prior incidents and some  ongoing tension between Holland and



            the police.  In addition, Holland's name had  been circulated



            within  the police department,  although that  standing alone



            would  not  be wrongful.   See  Paul v.  Davis, 424  U.S. 693
                                       ___  ____     _____



            (1976); United States v. Egemonye, 62 F.3d 425, 428 (1st Cir.
                    _____________    ________



            1995).



                 But  even  if assuming  that  a  jury  might think  that



            Holland had  been harassed in the  past, we do not  see how a



            reasonable jury could decide  that this was the cause  of his



            arrest  in this instance.   Such a charge  is contradicted by



            Holland's  own precise version of what the police said at the



            arrest.   That  version indicates  that the  police officers'


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immediate reasons for  the arrest  were, at  worst, a  belief



            that  Holland was  a suspect  in  the bank  robbery, possibly



            aggravated  by  his  refusal  to cooperate  or  disclose  his



            whereabouts at the time.



                 We  must say in candor that Holland would have an uphill



            road  to climb  even if  he had  plausibly claimed  that some



            general  police  animosity lay  behind  this  arrest.   Given



            Whren,  any plaintiff is  going to  have difficulty  in using
            _____



            subjective  motive to  attack  an arrest  which is  otherwise



            objectively justified by probable  cause.  But the variations



            in  facts, and certain extreme possibilities, caution against



            deciding too much in the abstract.



                 3.   The  claim  of  municipal  liability in  this  case



            depended  on  Holland's  claim  that  the  officers  violated



            Holland's constitutional rights by arresting him as a part of



            their campaign  of harassment.   Holland sought  to implicate



            the  city, under Monell v. New York City Department of Social
                             ______    __________________________________



            Services, 436  U.S. 658,  694 (1978),  by  charging that  the
            ________



            harassment grew  out of an officially  established program of



            targeting suspects, including the circulation  of information



            about them.



                  Whatever  "custom  or   policy"  the   city  may   have



            maintained   toward  individuals   that  the   police  deemed



            suspicious, Holland  cannot show that  it was "the  cause of,



            and moving force behind," his arrest  in this case.  Foley v.
                                                                 _____


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City of Lowell, 948 F.2d 10, 14 (1st Cir. 1991).  Further, we
            ______________



            have  concluded that  the  arrest was  itself lawful  because



            probable cause  existed and Holland has  offered no supported



            basis for overcoming Whren.  Thus, the claim against the city
                                 _____



            was properly dismissed.



                 Affirmed.
                 ________


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