Jackson Warren v. City of Lincoln, Nebraska James Breen Sandra L. Myers and David M. Beggs

864 F.2d 1436, 1989 U.S. App. LEXIS 44, 1989 WL 104

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 4, 1989
• Docket: 86-1434
• Status: Published

Opinions

WOLLMAN, Circuit Judge.

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

I.

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

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

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

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

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

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

II.

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

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

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

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

A.

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

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

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

Id. at 304 (citations omitted); see also United States v. Salinas-Calderon, 728 F.2d 1298, 1301 (10th Cir.1984) (“[S]ince courts have never hesitated to overrule an officer’s determination that he had probable cause to arrest, consistency suggests a court may also find probable cause despite an officer’s judgment that he did not have probable cause to arrest.”); United States v. Lester, 647 F.2d 869, 873 (8th Cir.1981) (“the validity of the arrest should be judged by whether the arresting officers actually had probable cause for the arrest, rather than by whether the officers gave the arrested person the right reason for the arrest”). Thus, although the officers believed they possessed only a reasonable suspicion that Warren was involved in the attempted burglary, a court nevertheless may conclude that there was in fact probable cause. If there was probable cause, the officers’ conduct must be adjudged accordingly.

B.

We thus must determine whether the facts available to the officers objectively gave rise to probable cause to arrest Warren for attempted burglary. Probable cause exists when at the moment the arrest was made, “the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964) (citing Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949)). “The determination of whether probable cause exists must not rest on isolated facts; rather it depends on the cumulative effect of the facts in the totality of the circumstances.” United States v. Archer, 840 F.2d 567, 573 (8th Cir.1988) (citing United States v. Bubis, 744 F.2d 61, 64 (8th Cir.1984)).

The following uncontroverted facts were within the officers’ knowledge. A man reported that a slender white male in his early twenties wearing a white short-sleeved shirt had tried to gain entry into his second floor apartment by attempting to force open a window.³ The victim saw the intruder running from the apartment to the east. Officer Alexander, who had arrived at the scene within five minutes, put his tracking dog on the intruder’s scent. The dog led the officers to Warren’s car, parked four and one-half blocks east of the scene of the attempted burglary. The police had received the call only eleven minutes earlier. It was 4:30 a.m. in a resi-' dential neighborhood, with only one other person in the general area. Warren is a slender white male, who was nineteen years old and wearing a light-colored short-sleeved shirt. As the officers approached his car, Warren attempted to drive away. We believe that these facts and circumstances would warrant a prudent person in believing that Warren was the intruder.

In United States v. Skinner, 412 F.2d 98 (8th Cir.), cert. denied, 396 U.S. 967, 90 S.Ct. 448, 24 L.Ed.2d 433 (1969), officers were looking for a bank robber described as a white male, 35-45 years old, slender in build, less than five feet six inches in height, having brown hair turning gray, in need of a shave, and hatless. See id. at 101. A panel of the court found probable cause to arrest a suspect fitting the description, found at 1:15 p.m., one hour after the robbery, sitting at a lunch counter in a hotel in the same geographic area where the robber was reported to have fled. See id. at 100-02. In some respects the description in Skinner was more specific than that in this case. Here, there was no mention of the intruder’s height, hair color, amount of beard growth, or presence or absence of a hat. On the other hand, the description was more precise here in that it contained the color and style of the intruder’s shirt. More importantly, Warren was found much sooner after the crime, at a time when far fewer people would be about, in a residential area as opposed to a business establishment, and had been located by use of a tracking dog.

In Klingler, officers learned, at 4:00 a.m., of a robbery by a man wearing sunglasses, a green jacket, and needing a shave. See 409 F.2d at 301. The robber was believed to be one of two occupants of a 1955 or 1956 white and brown Pontiac, having Minnesota license plates and having two construction helmets visible through the rear window. See id. at 301-02. An hour later, a car parked in a private parking lot began to move as an officer drove by. The officer stopped the car, which was a 1957 white and salmon or coral Pontiac with South Dakota license plates, and which had two construction helmets visible through the rear window. Id. at 302. The court found probable cause to arrest the passenger, who was wearing an olive waistcoat and had two days’ growth of beard. Sunglasses were also on the car’s dashboard. See id. at 303-04. Again, the officers who arrested Warren had more facts before them than did the officer in Klingler. They had a more detailed description of the suspect and they found Warren much sooner after the crime. They found Warren in the general vicinity in which the intruder had fled, and a tracking dog had led them to Warren. In Klin-gler, the officer did have a general description of the car, although the suspect’s car varied from the description with respect to the license plates and color. These cases demonstrate that under the facts within the officers’ knowledge, viewed objectively, probable cause existed to arrest Warren.

Other cases also support a finding of probable cause under these facts. See, e.g., United States v. Valez, 796 F.2d 24, 25-27 (2d Cir.1986) (probable cause where race, age, and clothing matched description, and suspect was found in immediate area of crime within a short space of time, despite fact that description contained no mention of facial hair and arrestee had thick mustache and small beard), cert. denied, 479 U.S. 1067, 107 S.Ct. 957, 93 L.Ed.2d 1005 (1987); United States v. Slipka, 735 F.2d 1064, 1065-66 (8th Cir.1984) (probable cause where suspect matched detailed clothing description and suspect fled upon eye contact with officer); Hollman v. Rundle, 461 F.2d 758, 759 & n. 1 (3d Cir.1972) (probable cause to arrest suspect whose race, height, hair color and style, and clothing color fit description and was found one night after the crime near the scene with a man closely fitting a second description); Dessus v. Pennsylvania, 452 F.2d 557, 562 & n. 9 (3d Cir.1971) (probable cause where defendant matched description as to race, height, and clothing color, and was found five blocks away within minutes of the crime, at 4:30 a.m. in a racially-mixed neighborhood, with very few people afoot in the vicinity), cert. denied, 409 U.S. 853, 93 S.Ct. 184, 34 L.Ed.2d 96 (1972).

C.

Because we conclude that probable cause existed to arrest Warren for attempted burglary, Warren’s assertion that his detention violated his constitutional rights must be rejected. The “Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975). A valid warrantless arrest, however, provides legal justification “for a brief period of detention to take the administrative steps incident to arrest.” Id. In United States v. Boyer, 574 F.2d 951 (8th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 457, 58 L.Ed.2d 426 (1978), the arrestee arrived at the police station at 3:30 p.m., was subjected to various administrative procedures until 4:30 p.m., questioned by FBI agents until 5:45 p.m., and taken before a magistrate late the next morning. See id. at 952-53. We held that this was not unnecessary delay under Rule 5(a) of the Federal Rules of Criminal Procedure. See id. at 955. Warren was detained at the jail for approximately two hours and twenty minutes. During that time he was questioned about his background and activities that night, fingerprinted, photographed, processed on the failure-to-appear warrant, and allowed to acquire money with which to post bond. This detention falls well short of the extended restraint of liberty prohibited by Gerstein.

We are left then with the officers’ failure to read Warren the Miranda warnings and Breen’s denial of Warren’s requests to see counsel. The reading of Miranda warnings is a procedural safeguard rather than a right arising out of the fifth amendment itself. See Miranda, 384 U.S. at 467, 86 S.Ct. at 1624. Thus, the remedy for a Miranda violation is the exclusion from evidence of any compelled self-incrimination, not a section 1983 action. See Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir.1976); Thornton v. Buchmann, 392 F.2d 870, 874 (7th Cir.1968); Hampton v. Gilmore, 60 F.R.D. 71, 81 (E.D.Mo.), aff'd, 486 F.2d 1407 (8th Cir.1973); cf. Hensley v. Carey, 818 F.2d 646, 649-50 (7th Cir.) (no section 1983 claim for officer’s failure to conduct a Stovall and Brathwaite-type line-up), cert. denied, — U.S. -, 108 S.Ct. 456, 98 L.Ed.2d 395 (1987). Warren’s sixth amendment right to counsel also was not violated, as that right had yet to attach. Warren never was subjected to adversary judicial criminal proceedings such as formal charges, arraignment, or indictment. See Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972).

Because we conclude that the uncontro-verted facts demonstrate that Warren’s rights were not violated, the judgment of the district court is affirmed.

1 . The Honorable Warren K. Urbom, Chief Judge, United States District Court for the District of Nebraska.

2 . The panel opinion of this court filed previously, Warren v. City of Lincoln, 816 F.2d 1254 (8th Cir.1987), was automatically vacated when the petition for rehearing was granted.

3 . Nebraska law provides the following definition of burglary:

A person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvements erected thereon with intent to commit any felony or with intent to steal property of any value.

Neb.Rev.Stat. § 28-507(1) (Reissue 1985). The relevant portions of the criminal attempt statute provide as follows:

(1) A person shall be guilty of an attempt to commit a crime if he:

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(b) Intentionally engages in conduct which, under the circumstances as he believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his commission of the crime.

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(3) Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant’s criminal intent.

Id. § 28-201. The officers could reasonably believe that one who climbs to a second story window and tries to force it open has attempted burglary.