Alan Greenberg v. Chester Downs and Marina LLC, et al

Filing

NOT PRECEDENTIAL OPINION Coram: VANASKIE, KRAUSE and RESTREPO, Circuit Judges. Total Pages: 7. Judge: KRAUSE Authoring.

Case: 16-1785

Document: 003112642381

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Date Filed: 06/05/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1785
___________
ALAN GREENBERG,
Appellant
v.
*CHESTER DOWNS AND MARINA LLC, d/b/a Harrah’s Philadelphia; MICHAEL
GAINES, Individually in his capacity as corporal for the Pennsylvania State Police;
WILLIAM SHORES, Individually in his official capacity as trooper for the Pennsylvania
State Police; JOHN DOES 1-10
*(Dismissed pursuant to Court Order dated 11/15/16)
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-14-cv-04796)
District Judge: Honorable R. Barclay Surrick
____________________________________
Submitted under Third Circuit LAR 34.1(a)
on March 31, 2017
Before: VANASKIE, KRAUSE, and RESTREPO, Circuit Judges
(Opinion filed: June 5, 2017)
OPINION*
*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

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KRAUSE, Circuit Judge.
Appellant Alan Greenberg challenges the District Court’s grant of summary
judgment in favor of the two police officers who he asserts wrongfully seized him in
violation of the Fourth Amendment. Because we agree with the District Court that the
officers had probable cause to seize Greenberg, we will affirm.
I.

Background
The incident at issue began when Greenberg was playing poker at Harrah’s Casino

and redeemed $300 worth of chips, but mistakenly was given $400 in cash instead.
Greenberg returned to Harrah’s the next day and was approached by a security guard,
who informed Greenberg that he was overpaid the previous night and that the
overpayment was captured on a surveillance video. Greenberg responded that he did not
recall being overpaid and would make restitution if that were the case, but he requested to
see the video to confirm the alleged overpayment. The security guard refused and told
Greenberg he would be arrested if he did not return the $100. When Greenberg persisted
in demanding that he first be given access to the surveillance video because he did not
believe he had been overpaid, two State Police Officers, Appellees Corporal Michael
Gaines and Trooper William Shores (the “Officers”) were called to the scene.

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Before the Officers spoke with either the security guard or Greenberg, Corporal
Gaines was informed by a Harrah’s surveillance employee that a casino patron had been
overpaid $100, that surveillance footage documented the overpayment, that the patron
refused to return the money to security personnel who had requested reimbursement, and
that Harrah’s wished to pursue charges. The Officers then conferred with the security
guard who identified Greenberg as the patron in question, reiterated that Greenberg had
been overpaid $100, and confirmed that she had requested Greenberg repay the
overcharge and that he refused.
Having gathered this information, the Officers identified themselves to Greenberg
as Pennsylvania State Police Officers, advised Greenberg that they were informed he had
been overpaid by $100, and told him to repay the money or he would be arrested. When
Greenberg then asked why he would be arrested, the Officers responded “[t]heft by
overpayment” and gave him ten seconds to either pay or go to jail. App. 31a. Greenberg
again requested to see the surveillance video but was told he would have to take that up
with Harrah’s. When Greenberg responded by asking the Officers if they had seen the
video, the Officers told him to “[t]urn around,” which Greenberg understood to mean
they were arresting him. App. 31a. At that point, Greenberg handed the security guard
$100, and the Officers left the casino.

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Greenberg filed suit asserting a claim of wrongful seizure in violation of the
Fourth Amendment.1 After discovery, the Officers moved for summary judgment,
arguing that Greenberg had not established the elements of his claim because they had
probable cause to arrest him and, in the alternative, that they were entitled to qualified
immunity. The District Court granted that motion, agreeing with Greenberg that he had
been seized,2 but concluding that the Officers had probable cause to seize him and thus
that no constitutional violation had occurred.3 Greenberg now appeals.
II.

Discussion4
Greenberg argues that the District Court erred in its grant of summary judgment

because the Officers did not have probable cause to arrest him under 18 Pa. Cons. Stat.

We address only the District Court’s denial of Greenberg’s claim that the
Officers seized his person in violation of the Fourth Amendment because that is the sole
claim raised by Greenberg on appeal. Greenberg has not challenged the District Court’s
resolution of other claims he raised against the Officers or of the claims he raised as to
other defendants.
2
The District Court held that the Officers’ threat to arrest Greenberg and order
that he “turn around” constituted a Fourth Amendment seizure. District Ct. Op. 11. As
neither party takes issues with that ruling, we will assume, without deciding, that
Greenberg was seized within the meaning of the Fourth Amendment.
1

3

An officer is entitled to qualified immunity unless the plaintiff can demonstrate
facts showing that “(1) the [officers] violated a statutory or constitutional right, and (2)
that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v.
al-Kidd, 563 U.S. 731, 745 (2011). Thus, in concluding there was no constitutional
violation, the District Court appears to have granted summary judgment in favor of the
Officers both on the merits and on the first prong of qualified immunity.
4

The District Court had jurisdiction to hear this case under 28 U.S.C. § 1331, and
we have jurisdiction under 28 U.S.C. § 1291.
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§ 3924.5 We disagree, and will affirm the grant of summary judgment in the Officers’
favor.
As the District Court observed in its detailed and thorough opinion, probable cause
requires only that “the facts and circumstances within the arresting officer’s knowledge
are sufficient in themselves to warrant a reasonable person to believe that an offense has
been or is being committed by the person to be arrested,” Orsatti v. N.J. State Police, 71
F.3d 480, 483 (3d Cir. 1995), and we have held that “knowledge of a credible report from
a credible eyewitness” is “sufficient[] [to] establish[] probable cause,” Merkle v. Upper
Dublin Sch. Dist., 211 F.3d 782, 790 & n.8 (3d Cir. 2000).
Here, the elements of “[t]heft of property lost, mislaid, or delivered by mistake”
under Section 3924 are: (1) the defendant “came into control of property of another”; (2)
he “knew that the property had been lost, mislaid, or misdelivered”; (3) he “intended to
deprive the owner of the property”; and (4) he “failed to take reasonable efforts to return
the property.” Commonwealth v. Willard, No. 1820 WDA 2013, 2015 WL 7458890, at
*5 (Pa. Super. Mar. 5, 2015). Given the information presented to the Officers by
Harrah’s employees—that Greenberg had been overpaid, that the overpayment had been
captured on video, and, despite having been told that he was overpaid, that Greenberg

5

Section 3924 provides:

[a] person who comes into control of property of another that he knows to
have been lost, mislaid, or delivered under a mistake as to the nature or
amount of the property or the identity of the recipient is guilty of theft if,
with intent to deprive the owner thereof, he fails to take reasonable
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refused to return the overpayment—the District Court correctly held that a reasonable
officer would conclude “an offense has been or is being committed by the person to be
arrested.” Orsatti, 71 F.3d at 483.
On appeal, Greenberg does not dispute that the Officers were reasonable in their
belief that he had come into control of the casino’s property and had failed to take
reasonable efforts to return it.6 Rather, he contends that because he could not view the
surveillance video, the Officers had no basis to believe that he “kn[e]w” he was overpaid
or had the requisite intent to unlawfully keep the casino’s property. Appellant’s Br. 18.
But this argument conflates the proof that would be necessary to convict at trial with the
significantly lower threshold necessary to support a finding of probable cause. See Reedy
v. Evanson, 615 F.3d 197, 211 (3d. Cir. 2010). Having been informed by Harrah’s
surveillance employees and the security guard that Greenberg had been advised he was
overpaid and nonetheless refused to return the overpayment, the Officers could
reasonably infer that Greenberg knew that he possessed the casino’s money and
unlawfully intended to keep it. See Merkle, 211 F.3d at 789-91. And the Officers even
went a step further and themselves informed Greenberg that, according to surveillance

measures to restore the property to a person entitled to have it.
6
Greenberg does not renew the argument he raised in the District Court that the
Officers lacked probable cause to seize him because they did not personally view the
surveillance video. Even if he did make this argument, the District Court was correct in
its analysis that the Officers were permitted to rely on the information provided to them
by Harrah’s employees and were “not required to undertake an exhaustive investigation
in order to validate the probable cause that, in [their] mind, already existed.” Merkle, 211
F.3d at 790 n.8.
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personnel, he had been overpaid; even then, however, Greenberg would not return the
overpayment. Under these circumstances, the Officers had probable cause to believe
Greenberg possessed the knowledge and intent required under Section 3924. 7
Greenberg also objects that it was improper for Harrah’s to “enlist[] . . . the police
to settle an[] otherwise non-violent civil disagreement over $100 when Greenberg merely
asked for the substantiating known video to so confirm” and that the police “should not
‘pick sides.’” Appellant’s Br. 20. However, this complaint goes to Harrah’s business
practices, not the Constitution. It might be preferable in many respects, including the
efficient use of both law enforcement and judicial resources, for Harrah’s to allow
patrons in Greenberg’s position to confirm the overpayment via surveillance video and
then voluntarily make repayment instead of denying patrons that opportunity and
requiring the involvement of the police. But under the law, “a credible report from a
credible eyewitness” is “sufficient[] [to] establish[] probable cause,” Merkle, 211 F.3d at
790 & n.8, and no constitutional violation occurred when the Officers relied on such a
report here.
III.

Conclusion
For the reasons stated above, we will affirm the judgment of the District Court.

7

In his reply brief, Greenberg also argues the Officers could not lawfully arrest
him because a separate provision, 18 Pa. Cons. Stat. § 3904, only authorizes warrantless
arrests for felonies. Section 3904, however, authorizes warrantless arrests with probable
cause for all grades of theft, not just felonies. Wright v. City of Phila., 409 F.3d 595, 601
(3d Cir. 2005).
7