Angello A. D. Osborne v. Peter Georgiade
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cv-00182-RDB Copies to all parties and the district court/agency. [1000019945].. [15-2468]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2468
ANGELLO A. D. OSBORNE,
Plaintiff - Appellee,
v.
PETER GEORGIADES, Police Corporal,
Defendant – Appellant,
and
DIONE WHITE, LGSW; MEREDITH LYNN PIPITONE,
Defendants.
Appeal from the United States District Court for the District of
Richard D. Bennett, District Judge.
Maryland, at Baltimore.
(1:14-cv-00182-RDB)
Argued:
May 10, 2016
Decided: February 8, 2017
Before GREGORY, Chief Judge, TRAXLER, Circuit Judge, and Joseph
F. ANDERSON, Jr., Senior United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by unpublished opinion. Chief Judge Gregory wrote the
opinion, in which Judge Anderson joined. Judge Traxler wrote a
dissenting opinion.
ARGUED:
Deborah Street Duvall, HARFORD COUNTY DEPARTMENT OF
LAW, Bel Air, Maryland, for Appellant. Robert Louis Smith, Jr.,
LAW OFFICE OF ROBERT L. SMITH, JR., Baltimore, Maryland,
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for Appellee.
ON BRIEF:
Melissa Lambert, County Attorney,
Kristin L. Lewis Noon, Assistant County Attorney, HARFORD COUNTY
DEPARTMENT OF LAW, Bel Air, Maryland, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
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GREGORY, Chief Judge:
Plaintiff-appellee Angelo Osborne sued Defendant-appellant
Corporal Peter Georgiades, as well as Dione White and Meredith
Lynn Pipitone, alleging violations of his constitutional rights
under
42
U.S.C.
§§
1983
and
1985.
Specifically,
Osborne
contends that Georgiades, in the process of investigating him
for alleged sexual abuse of his minor child, unreasonably seized
him
in
violation
of
the
Fourth
and
Fourteenth
Amendments.
Georgiades moved for summary judgment on grounds of qualified
immunity.
The district court denied the motion, holding that
Georgiades
is
not
entitled
to
qualified
immunity.
For
the
reasons stated below, we affirm the judgment of the district
court.
I.
A.
As a preliminary matter, we view the facts in the light
most favorable to Osborne, the nonmoving party.
See ACLU of
Md., Inc. v. Wicomico County, 999 F.2d 780, 784 (4th Cir. 1993).
Osborne and Pipitone are the parents of two minor children—a
daughter (“JMLO”), five years old at the time of the events in
question, and a son (“CJP”), then two years old.
2010,
Pipitone
contacted
the
Harford
County
On November 1,
Child
Center to report the alleged sexual assault of JMLO.
3
Advocacy
Pipitone
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claimed
father.
that
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JMLO
did
not
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want
to
spend
Halloween
with
her
JMLO purportedly told Pipitone that a few weeks prior,
Osborne had
Sealed App. 63. *
Later that day, White, a licensed social worker for the
Harford
County
Child
Advocacy
Center,
interviewed
Pipitone.
After speaking with Pipitone, White interviewed JMLO.
Although
Georgiades was not present, he remained in telephone contact
with White and observed the interview from a nearby room via
live video feed for purposes of investigating the allegations.
White
employed
Inquiry,
the
Abuse
questioning
Rapport,
Scenario,
JMLO.
RATAC
Anatomical
Closure
focuses
Identification,
(“RATAC”)
on
reducing
method
any
Touch
when
potential
trauma to the child during the interview.
In
her
initial
responses
to
White’s
questions,
JMLO
consistently denied that Osborne, or anyone else, had touched
her on parts of her body covered by a bathing suit.
Id.
*The
In
Court will cite to the audio and video recording of
JMLO’s interview because the transcript, Sealed App. 36-56,
contains numerous errors.
4
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total, JMLO denied abuse six times.
See J.A. 250, 252, 255
(classifying JMLO’s responses as “denials”).
Id.
After
approximately
three
minutes
of
similar
questions, JMLO changed course and finally replied, “He did.”
Id.
JMLO went on to state
Id.
Id.
JMLO also described
She then referred to an incident at Osborne’s
house in which CJP got in “trouble” with Osborne’s girlfriend.
Id.
Although it is not entirely clear what CJP did, JMLO stated
“that’s why I’m never going over there again.”
asked
any
follow-up
questions
5
concerning
Id.
that
White never
incident.
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Instead,
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White
asked
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several
questions
regarding
Osborne’s girlfriend and CJP “saw it happen.”
changed
course
and
stated
that
Osborne’s
Id.
whether
JMLO again
girlfriend
was
not
present when the alleged abuse occurred and that CJP was asleep.
Id.
After
JMLO
described
and
demonstrated
with
dolls
the
alleged acts of abuse, White placed a phone call to Georgiades,
who suggested other topics to discuss.
J.A. 226, 237.
After
this call, she asked JMLO whether CJP was present during the
second instance of abuse.
the bed next to her.
Id. at 55.
JMLO stated that CJP was asleep in
Id. at 54.
JMLO also stated Osborne
White then asked
Id.
Their conversation was then interrupted by a second phone
call from Georgiades.
After this conversation, White asked JMLO
a series of questions regarding
At this point, Georgiades immediately placed a
third phone call, resulting in White terminating the interview.
White and Georgiades spoke on three occasions throughout the
interview.
6
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After
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White
completed
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the
interview,
Pipitone
called
Osborne to accuse him of sexually assaulting their daughter.
With Pipitone’s consent, Georgiades listened in on the call.
During that conversation, Osborne consistently denied Pipitone’s
accusations.
Osborne
also
told
polygraph test if she took one.
Pipitone
he
would
take
a
J.A. 318, 319-20.
The most recent assault allegedly occurred on October 16,
2010.
Dr. Paul Lomonico conducted a thorough physical exam of
JMLO on November 3, 2010, for evidence of sexual assault.
He
examined her entire body,
Sealed App. 58.
His medical report indicated “no physical signs . . . of sexual
abuse” but noted, “This does not rule out abuse.”
On
December
(“Tobin”),
a
Maryland.
After
15,
Deputy
2010,
Georgiades
State’s
reviewing
met
Attorney
the
video
with
for
of
Tobin accepted the case for prosecution.
Id.
Diane
Harford
the
JMLO
Tobin
County,
interview,
For over a month,
Georgiades attempted to contact Osborne, but was unsuccessful.
On January 21, 2011, Georgiades spoke to Osborne, who stated
that
he
present.
would
only
speak
with
Id. at 68.
7
Georgiades
with
his
attorney
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On
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January
warrant.
24,
2011,
Georgiades’s
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Georgiades
applied
affidavit
for
disclosed
an
only
arrest
JMLO’s
accusations of sexual abuse but not her repeated denials, nor
the results of the medical examination.
An arrest warrant was
issued, and Osborne was arrested on the same day.
Osborne was
charged with eight counts of sexual—assault-based offenses.
On
January 25, 2011, Osborne was detained in the Harford County
Detention Center, with bail set for $500,000.
A grand jury
subsequently indicted Osborne on February 15, 2011, on sixteen
counts
of
sexual-assault-related
crimes.
Osborne
was
incarcerated without bond for over eight months, until October
3, 2011, when a bond was set for $25,000.
declined
to
prosecute
Osborne
on
The state eventually
December
13,
2011,
instead
placing his case on the inactive “stet” docket.
B.
Osborne initiated the present action on January 23, 2014.
Osborne
claims
fabricated
suggestive
cajole
the
Pipitone’s
that
evidence
and
White,
against
leading”
minor
child
accusations.
with
him
questions
into
by
9.
asking
“designed
making
J.A.
Georgiades’s
up
a
Osborne
guidance,
JMLO
and
story
also
“unduly
intended
to
to
support”
claims
that
Georgiades knowingly omitted relevant facts from his application
for Osborne’s arrest warrant.
Osborne denies ever assaulting or
even attempting to assault the minor child.
8
He argues that his
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arrest
and
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ensuing
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incarceration
without
probable
cause,
wanton,
malicious[,]
and
and
were
were
reckless
“without
motivated
desire
justification,
by
to
[Defendants’]
inflict
great
emotional and physical distress and pain and suffering upon”
him.
Id. at 11.
After the district court dismissed all claims against White
and Pipitone, Georgiades moved for summary judgment on the sole
remaining
right
claim
against
that
he
violated
unreasonable
seizure
Osborne’s
under
Fourth
42
Amendment
U.S.C.
§ 1983.
Georgiades argued that he is entitled to qualified immunity for
his actions.
The district court concluded that Georgiades is
not entitled to immunity for the acts underlying Osborne’s §
1983
claim—fabrication
of
evidence
facts from the warrant application.
because
the
Georgiades
contents
were
not
of
the
and
omission
material
First, the court held that
conversations
“disclosed,”
of
a
between
reasonable
White
jury
and
could
conclude that Georgiades exerted pressure that resulted in the
fabrication of evidence against Osborne.
the
court
found
Georgiades’s
deliberately
that
warrant
or
with
a
reasonable
application
reckless
jury
J.A. at 331.
could
contained
disregard
for
Second,
conclude
omissions
any
that
made
misleading
effect and that the omitted evidence had the potential to negate
probable cause.
Id. at 333.
This appeal timely followed.
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II.
We review an award of summary judgment on the basis of
qualified immunity de novo.
(4th Cir. 2012).
Durham v. Horner, 690 F.3d 183, 188
In reviewing the district court’s denial of
summary judgment based on qualified immunity, “we accept as true
the facts that the district court concluded may be reasonably
inferred from the record when viewed in the light most favorable
to the plaintiff.”
2016) (citation
Yates v. Terry, 817 F.3d 877, 884 (4th Cir.
omitted).
“To
the
extent
that
the
district
court has not fully set forth the facts on which its decision is
based, we assume the facts that may reasonably be inferred from
the
record
when
plaintiff.”
viewed
Id.
in
(citation
the
light
omitted).
most
favorable
“[T]his
to
usually
adopting . . . the plaintiff’s version of the facts.”
the
means
Iko v.
Shreve, 535 F.3d 225, 230 (4th Cir. 2008) (quoting Scott v.
Harris, 550 U.S. 372, 378 (2007)).
III.
Qualified
liability
in
immunity
a
§
1983
shields
suit
government
unless
their
officials
conduct
from
violated
“clearly established statutory or constitutional rights of which
a reasonable person would have known.”
457 U.S. 800, 818 (1982).
Harlow v. Fitzgerald,
To determine whether an official is
entitled to qualified immunity, we ask (1) whether the facts
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illustrate
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that
constitutional
the
right;
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official
and
(2)
violated
whether
the
the
right
plaintiff’s
was
clearly
established law at the time of the alleged event such that “a
reasonable
officer
would
have
violated the asserted right.”
understood
that
his
conduct
Miller v. Prince George’s County,
475 F.3d 621, 627 (4th Cir. 2007) (quoting Saucier v. Katz, 533
U.S. 194, 201-02 (2001)).
The answer to both questions must be
in the affirmative to defeat the official’s motion for summary
judgment on qualified immunity grounds.
Id.
A.
First,
we
Georgiades
consider
violated
whether
Osborne’s
the
facts
asserted
demonstrate
constitutional
that
right.
Osborne maintains that the facts outlined above, considered in
the light most favorable to him, allege a claim that he was
seized
without
Amendment.
probable
“The
Fourth
cause
in
violation
of
Amendment
prohibits
law
the
Fourth
enforcement
officers from making unreasonable seizures, and seizure of an
individual
effected
without
probable
cause
is
unreasonable.”
Brooks v. City of Winston–Salem, 85 F.3d 178, 183 (4th Cir.
1996).
Osborne
unreasonable
specifically
because
it
contends
resulted
that
from
his
(1)
seizure
was
Georgiades’s
fabrication of evidence and (2) the omission of material facts
from the warrant application.
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1.
Osborne
directing
alleges
White
to
that
ask
Georgiades
JMLO
fabricated
misleading
evidence
questions,
resulting in JMLO’s false account of sexual abuse.
by
thereby
The district
court held that a reasonable jury could conclude that Georgiades
committed a constitutional violation by exerting pressure that
caused the fabrication of evidence against Osborne and directly
resulted in his unreasonable seizure.
J.A. 331.
The district
court further held that the right to be free from deprivation of
liberty due to an officer’s fabrication of evidence was clearly
established at the time of Georgiades’s alleged conduct.
332.
J.A.
As such, the district concluded that Georgiades was not
entitled to qualified immunity for the alleged fabrication.
Georgiades has waived his challenges to these holdings by
raising them for the first time in his reply brief.
See Metro.
Reg’l Info. Sys., Inc. v. Am. Home Realty Network, 722 F.3d 591,
602 n.13 (4th Cir. 2013) (stating that appellant’s failure to
address
issue
abandoned).
in
opening
brief
will
deem
issue
waived
or
Therefore, Georgiades’s challenges are not properly
before us, and we will not address the district court’s holdings
on the fabrication claim.
2.
Osborne, arrested pursuant to a warrant, also contends that
Georgiades unlawfully omitted certain key facts from the warrant
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application.
Franks
v.
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Relying on the two-prong standard set forth in
Delaware,
438
U.S.
154,
155-56
(1978)
(requiring
intent and materiality), the district court held that Osborne
must
show
that
Georgiades
“deliberately
or
with
reckless
disregard for the truth made material false statements in his
affidavit, . . . or omitted from that affidavit material facts
with the intent to make, or with reckless disregard of whether
they thereby made, the affidavit misleading.”
J.A. 332 (quoting
Miller, 475 F.3d at 627).
Below, we consider the district court’s holdings as to the
intent and materiality prongs to determine whether Georgiades’s
omissions amount to a constitutional violation.
a.
Initially,
we
conclude
that
Georgiades
has
waived
any
challenge to the district court’s holding regarding his intent
to mislead.
The district court held that a reasonable jury
could conclude that Georgiades’s warrant application contained
omissions made deliberately or with reckless disregard for any
misleading effect.
reference
to
footnote
that
the
J.A. 332.
district
“Osborne
Georgiades only makes a passing
court’s
has
failed
holding,
to
contending
demonstrate
that
in
a
the
omissions were made with reckless disregard for the truth. . . .
However,
the
Court
need
not
reach
this
issue
cause existed for the warrant against Osborne.”
13
since
probable
Appellant’s Br.
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15 n.4.
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Georgiades makes no attempt to explain the basis for
his belief, nor does he present any argument on why summary
judgment should have been granted in his favor on this issue.
The issue is therefore waived.
See, e.g., Belk, Inc. v. Meyer
Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012) (concluding that
defendant
waived
issue
for
failure
to
develop
argument
in
brief).
b.
Next, we consider the district court’s holding regarding
the materiality of the omitted facts.
Id. at 333.
argues that
by
the
omitted
facts
finding
of
district
“could”
probable
court
and
erred
“had
cause.
the
J.A.
concluding
potential”
333.
We
to
agree
Georgiades
that
the
negate
that
a
the
district court employed the wrong standard, but the error was
harmless because the omissions met the proper standard under
Franks.
The correct materiality standard under Franks requires that
the
omissions
be
necessary
to
the
neutral
magistrate’s finding of probable cause.
and
disinterested
Evans v. Chalmers, 703
F.3d 636, 650 (4th Cir. 2012) (quoting Miller, 475 F.3d at 628).
The omission “must be such that its inclusion in the affidavit
would
defeat
probable
cause
for
arrest.”
Colkley, 899 F.2d 297, 301 (4th Cir. 1990).
United
States
v.
The court must
insert the facts recklessly omitted and determine whether or not
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the
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“corrected”
cause.
warrant
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affidavit
Miller, 475 F.3d at 628.
affidavit
establishes
probable
would
establish
probable
If the “corrected” warrant
cause,
amount to a constitutional violation.
the
omissions
do
not
Id.
Probable cause for an arrest “exists where the facts and
circumstances within [the officer’s] knowledge and of which [he
or she] had reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief
that an offense has been . . . committed by the person to be
arrested.”
Clipper v. Takoma Park, Md., 876 F.2d 17, 19 (4th
Cir. 1989) (citing Dunaway v. New York, 442 U.S. 200, 208 n.9
(1979)).
Osborne
contends
that
a
“corrected”
affidavit
have established probable cause for his arrest.
would
not
As corrected,
Georgiades’s warrant application would have shown that (1) JMLO
repeatedly denied (six times in total) that she was sexually
abused
using
by
Osborne;
(2)
she
then
stated,
and
demonstrated
by
dolls,
; (3) the most recent acts of abuse occurred on October 16,
2010; and (4) a thorough medical exam conducted on November 3,
2010 revealed no physical signs of sexual abuse.
Considering
the totality of the circumstances presented by this information,
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the “corrected” warrant application would not have established
probable cause to arrest Osborne.
The facts and circumstances presented by the “corrected”
warrant application are not sufficient in themselves to warrant
a
person
of
reasonable
caution
in
the
belief
committed the offense stated in the application.
that
Osborne
The corrected
warrant application would have asked the magistrate to issue a
warrant for Osborne’s arrest in spite of JMLO’s inconsistent
allegations of abuse and direct evidence that may contradict
that any abuse occurred-Dr. Lomonico’s medical examination and
report.
As such, the omitted facts
are
material
because
their
inclusion
would
have
defeated
probable cause.
B.
Georgiades has never contended that the right asserted by
Osborne was not clearly established.
above,
this
issue
is
undoubtedly
For the reasons stated
waived.
And
even
if
not
waived, this contention is without merit.
The Fourth Amendment right to be arrested only on probable
cause was clearly established at the time of the events at issue
here.
Miller, 475 F.3d at 632; Brooks, 85 F.3d at 183.
specifically,
it
was
also
clearly
16
established
“that
More
the
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Constitution did not permit a police officer deliberately, or
with reckless disregard for the truth, to make . . . omissions
to
seek
a
cause.”
warrant
that
would
otherwise
be
without
probable
Miller, 475 F.3d at 631-32 (collecting cases).
objective
standard
for
qualified
immunity
accommodates
The
the
allegation of material omissions “because a reasonable officer
cannot believe a warrant is supported by probable cause if the
magistrate is misled by [omitted facts] that the officer knows
or should know [would negate probable cause].”
Smith, 1010 F.3d
at 355.
We therefore conclude that Georgiades is not entitled to
qualified immunity.
IV.
Georgiades also argues that the February 15, 2011, grand
jury
indictment
probable
Osborne’s
“conclusively
cause,
which
claims
Appellant’s Br. 9.
of
unless
false
determined
rebutted
arrest
by
and
the
existence
Osborne,
false
of
nullifies
imprisonment.”
Georgiades, however, failed to raise this
argument in the district court.
This Court has repeatedly held that issues raised for the
first time on appeal generally will not be considered.
United
cases).
States,
1
F.3d
246,
250
(4th
Cir.
1993)
Muth v.
(collecting
“The matter of what questions may be taken up and
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resolved for the first time on appeal is one left primarily to
the discretion of the courts of appeals, to be exercised on the
facts of individual cases.”
In re Under Seal, 749 F.3d 276, 285
(4th Cir. 2014) (quoting Singleton v. Wulff, 428 U.S. 106, 121
(1976)).
In
sparingly.
Exceptions to this general rule are made only in
very
limited
argument
this
circumstances,
establishes
fundamental justice.
Cir. 1985).
circuit,
we
such
“fundamental
exercise
as
that
when
error”
the
or
discretion
newly
a
raised
denial
of
Stewart v. Hall, 770 F.2d 1267, 1271 (4th
The error must be “so serious and flagrant that it
goes to the very integrity of the trial.”
Id.
Because fundamental error is a more limited standard than
the plain-error standard applied in criminal cases, we use the
plain-error standard “as something of an intermediate step in a
civil case.”
In re Under Seal, 749 F.3d at 285-86.
If a party
in a civil case fails to meet the plain-error standard, it is
clear that he also fails to establish fundamental error.
Id.
Under the plain-error standard, we may correct an error not
raised
before
the
demonstrates:
district
court
only
where
the
appellant
(1) there is in fact an error; (2) the error is
clear or obvious, rather than subject to reasonable dispute;
(3) the
error
meaning
it
affected
affected
the
the
appellant’s
outcome
of
substantial
the
district
rights,
court
proceedings; and (4) the error seriously affects the fairness,
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integrity, or public reputation of judicial proceedings.
States v. Marcus, 560 U.S. 258, 262 (2010).
United
We have refused,
however, to conduct plain error review where the party “failed
to make its most essential argument in its briefs or at oral
argument: . . . that the district court fundamentally or even
plainly erred.”
In re Under Seal, 749 F.3d at 292.
Here, Georgiades has not made his most essential argument.
His “failure to argue for plain error and its application on
appeal surely marks the end of the road for [his] argument for
reversal not first presented to the district court.”
Id.
Thus,
Georgiades’s argument is waived.
V.
For the foregoing reasons, the district court’s denial of
Georgiades’s summary judgment motion is
AFFIRMED.
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TRAXLER, Circuit Judge, dissenting:
We are talking about a five year old little girl.
She
described how her father sexually molested her to a trained and
experienced
forensic
interviewer,
using
anatomically
correct
drawings and dolls to demonstrate what he did to her.
The
majority holds it was illegal to arrest the father.
The little girl initially denied being abused during the
interview and a medical examination conducted over two weeks
after
the
abuse
showed
no
signs
of
physical
injury.
Notwithstanding the fact that a trained and experienced social
worker
and
additional
interviewer,
facts,
with
determined
full
that
knowledge
sexual
of
abuse
was
the
two
indicated
under Maryland law, the majority holds there can be no arrest
because there was no probable cause.
If this were a published
case which would set precedent for this circuit, you could say
goodbye to the prosecution of many child sexual abuse cases,
because
those
two
facts
are
common
to
sexual
abuse
cases
involving children.
This little girl is like most five year olds who have
been sexually abused.
She does not want to talk about it.
video of her forensic interview makes that plain.
The
There are
many reasons why this occurs and why children, more often than
not,
initially
parent
or
other
deny
sexual
trusted
abuse,
adult.
20
particularly
The
child
may
abuse
have
by
a
been
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threatened not to talk by her abuser.
She may have been told
not to tell (as was the case with this little girl) or led into
a promise to “keep our secret.”
She may be simply embarrassed.
A child’s reluctance to talk about sexual abuse happens all the
time.
But such initial denials do not mean the abuse did not
occur and they cannot be accepted at face value.
must
be
asked
explored.
and
different
interview
More questions
approaches
must
be
It takes a trained and skilled interviewer to get
past these initial denials to uncover the truth of what happened
in a reliable way.
That is precisely what happened here.
Likewise, the absence of physical trauma is not unusual,
because there are degrees of sexual abuse.
does not mean no sexual abuse occurred.
A lack of injury
This child told the
interviewer
46.
S.J.A.
The particular incident caused pain to her but not physical
injury.
Hence the validity of the examining doctor’s conclusion
that the absence of physical trauma did not mean that no sexual
abuse occurred.
According to the majority’s holding in this case, if a
small child initially and briefly denies sexual abuse and the
medical
examination
inconclusive,
abuser.
then
shows
there
is
no
no
injury,
probable
but
cause
is
to
otherwise
arrest
the
Yet, in Maryland, a sex offender can be convicted at
trial solely on the testimony of his young victim.
21
There is no
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requirement of corroboration, and initial denials by the child
do
not
affect
happened.
the
admissibility
of
her
testimony
about
what
It is for the jury to decide whether the child’s
statement is enough, or whether the initial denials render her
testimony unreliable.
The majority is requiring more evidence
for an arrest than Maryland requires for a conviction.
I.
A.
Under
social
Maryland’s
abuse
§
5-706.
At
the
along
local
See
Law
charged,
statute,
enforcement, with investigating allegations of child abuse.
Fam.
are
neglect
law
Code
departments
and
with
Md.
services
child
conclusion
of
an
investigation, the department must determine whether child abuse
is “indicated,” “ruled out,” or “unsubstantiated.”
See Md. Code
Regs. § 07.02.07.12.
On
November
Harford
County
1,
2010,
Child
Meredith
Advocacy
Pipitone
Center
reported
that
her
5
to
the
year-old
daughter, “JMLO,” had been sexually abused by Osborne, JMLO’s
father.
advocacy
Later that day, Pipitone brought JMLO to the child
center
and
talked
to
Dion
White,
a
licensed
social
worker and trained forensic interviewer in child sexual abuse
cases.
In
conducted
accordance
a
forensic
with
Maryland
interview
22
of
law,
JMLO.
White
immediately
White’s
interview
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followed the RATAC method.
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See Jennifer Anderson et al, The
Cornerhouse Forensic Interview Protocol:
RATAC, 12 T.M. Cooley
J. of Prac. & Clinical L. 193, 202 (2010).
for
“Rapport,
Scenario,
and
Anatomy
Identification,
Closure,”
see
id.,
RATAC, an acronym
Touch
is
a
Inquiry,
Abuse
well-recognized
and
widely-accepted model for interviewing and questioning children
about
through
sexual
the
abuse.
steps
A
trained
sequentially
interviewer
and
begins
rapport and gaining the child’s trust.
generally
by
goes
establishing
a
The interviewer then
utilizes anatomical drawings “to identify different parts of the
body, to develop a common language,” for the child to use in
identifying body parts.
J.A. 210.
She then moves to the Touch
Inquiry, wherein the child is asked about “what parts of the
body may not be okay for someone to touch.”
J.A. 211.
Finally,
the interviewer delves into whether the allegations of abuse
have occurred – the “Abuse Scenario” – and ultimately reaches
closure with the child.
Of
particular
relevance
in
this
case
is
the
“Abuse
Scenario” component, pursuant to which the interviewer seeks to
determine if the allegations of abuse have actually occurred.
Generally, the interviewer “start[s] with open-ended questions”
and “use[s] the child’s spontaneity.”
J.A. 211.
However, the
interviewers are also taught to use direct questions, or yes-no
questions,
or
multiple
choice
when
23
necessary.
According
to
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J.A.
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46-47.
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At
that
point,
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JMLO
proceeded
to
describe
in
S.J.A. 55.
Based
on
the
results
of
the
RATAC
interview,
White’s
written assessment was “that th[e] child was sexually abused” as
described
in
detail
during
the
forensic
interview.
White
provided the following official disposition, pursuant to state
law:
“Sexual
Abuse
of
[JMLO]
is
ruled
‘Indicated,’
in
accordance with the provisions of [Maryland] Family Law Article
5-701 and [the Code of Maryland Regulations] 07.02.07.12 (A-2).”
S.J.A. 63.
Corporal Peter Georgiades of the Harford County Sheriff’s
Office was assigned to investigate the case and appeared at the
child advocacy center to monitor the interview of JMLO.
There
is no evidence in the record that Corporal Georgiades talked to
JMLO before the interview. There is no evidence in the record
that he knew JMLO or her mother or her father.
He was not
physically present in the room while White interviewed JMLO, but
instead observed what transpired from another room by means of a
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live video feed.
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Georgiades and White were able to communicate
by phone during the interview, which they did three times during
the 37 minutes White talked to JMLO.
Following the interview, JMLO’s mother called Osborne and
relayed what JMLO had described to White during the interview.
Law enforcement recorded the call.
Rather
than
seek
a
warrant
Osborne denied JMLO’s story.
immediately,
elected to continue the investigation.
Corporal
Georgiades
In particular, Corporal
Georgiades wanted to afford Osborne an opportunity to provide an
explanation for JMLO’s statements; however, Georgiades’ attempts
to contact Osborne were unsuccessful, despite Georgiades having
left his card at Osborne’s residence multiple times.
On November 3, 2010, Dr. Lomonico was advised by DSS that
JMLO had reported
S.J.A. 58.
Although Dr. Lomonico found “no physical signs in today’s exam
for sexual abuse,” he concluded that “[t]his does not rule out
abuse.”
S.J.A. 58.
Maryland law specifically provides that
“[p]hysical injury is not required for a finding of indicated
sexual abuse.”
Md. Code Regs. § 07.02.07.12(A)(2)(b); see also
Md. Code, Fam. Law § 5-701(b)(2) (defining “abuse” to include
“sexual
sustained
abuse
or
of
a
not.”).
child,
whether
Moreover,
physical
under
injuries
Maryland
law,
are
any
penetration, “however slight,” is sufficient to establish rape.
28
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Kackley v. State, 493 A.2d 364, 366 (Md. Ct. Spec. App. 1985).
White
later
testified
without
contradiction
that
“[i]n
my
experience there’s seldom trauma. . . . [W]hen a doctor, Dr.
Lomonico would look at a child, there is seldom evidence or an
observation
o[f]
physical
trauma.”
S.J.A.
34.
White’s
experience consisted of her investigation of an average of 100
cases a year, since 2004, amounting to over one thousand cases,
the majority of which were sexual abuse cases.
On
December
15,
2010,
six
weeks
after
the
initial
statements by JMLO, Corporal Georgiades met with the prosecutor,
Deputy State’s Attorney Diane Tobin, to have his case assessed.
After viewing the entire video of White’s interview of JMLO and
discussing
the
merits
of
the
case
with
Georgiades,
Tobin
accepted the case for prosecution.
Despite
the
go-ahead
from
the
prosecutor,
Corporal
Georgiades still persisted in his efforts to contact Osborne.
Even after leaving his card several more times, Georgiades was
not able to get Osborne to contact him.
Georgiades
believing
incidents.
contacted
her
to
be
Osborne’s
a
On January 14, 2011,
girlfriend
possible
witness
by
to
the
telephone,
reported
The girlfriend told Georgiades that Osborne did not
trust the police and would not contact them, but she agreed she
would encourage Osborne to call.
Finally, on January 24, 2011,
Osborne called Georgiades but explained that he wanted to talk
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with his attorney before saying anything else.
Osborne then
ended the call.
On January 24, 2011, Corporal Georgiades applied for an
arrest warrant.
After recounting the allegations from JMLO’s
mother in his warrant application, Georgiades expressly referred
to the recorded interview:
“[JMLO] was brought to the [child
advocacy center] on Monday 11/1/2010 and a forensic interview
was
conducted.
recorded.”
The
Interview
J.A. 160.
was
both
visually
and
audibly
Georgiades then briefly summarized the
portions of JMLO’s interview that supported probable cause to
believe that Osborne had sexually abused his daughter.
The arrest warrant was issued and Osborne was charged with
8 sexual-assault counts.
with
the
evidence
assault offenses.
issued
Subsequently, a grand jury presented
a
16-count
indictment
for
sexual-
Osborne was held in jail for more than 8
months pending trial.
Ultimately, the State’s Attorney’s Office
placed Osborne’s case on the “stet docket” rather than moving
forward to trial and released Osborne.
B.
Osborne
sued
the
police
officer.
He
asserted
under
42
U.S.C. § 1983 that his arrest by Corporal Georgiades constituted
an unreasonable seizure in contravention of the Fourth Amendment
because Corporal Georgiades (1) included “fabricated” evidence
in
the
warrant
application
in
30
that
he
knowingly
and
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intentionally induced JMLO to invent facts supporting the sexual
abuse allegations, see J.A. 330-31, and (2) omitted from his
application
for
an
arrest
warrant
JMLO’s
initial
denials
of
sexual abuse as well as the fact that a medical examination did
not reveal any physical trauma, see J.A. 332-33.
Corporal Georgiades moved for summary judgment on the basis
of
qualified
immunity.
The
district
court
denied
summary
judgment, ruling that (1) a reasonable jury could conclude that
Corporal
Georgiades
manufactured
the
case
against
Osborne
by
directing White to pose questions designed to mislead or confuse
JMLO
and
material
court
(2)
to
the
the
omissions
probable
reasoned
that
from
cause
“the
Georgiades’
affidavit
determination.
presence
of
this
The
were
district
contradictory
evidence” such as the initial denials from JMLO and the lack of
trauma findings by the examining doctor “could certainly negate
a
finding
of
probable
cause,”
meaning
that
“a
neutral,
reasonable judicial officer could choose to credit this evidence
over
the
evidence
(emphasis added).
show,
the
district
of
JMLO’s
account
of
abuse.”
J.A.
333
As to its first decision, for reasons I will
court
was
clearly
incorrect.
As
to
the
second ruling, the district court was wrong on the law, a point
acknowledged by the majority.
II.
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We review de novo a district court’s decision to deny a
summary judgment motion based on qualified immunity.
v.
Stansberry,
772
F.3d
340,
345
(4th
Cir.
See Danser
2014).
Summary
judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
In § 1983 actions, government officials are entitled to
qualified immunity so long as they have not violated “clearly
established
statutory
or
constitutional
reasonable person would have known.”
U.S. 800, 818 (1982).
rights
of
which
a
Harlow v. Fitzgerald, 457
“Officials are not liable for bad guesses
in gray areas; they are liable for transgressing bright lines.”
S.P. v. City of Takoma Park, Md., 134 F.3d 260, 266 (4th Cir.
1998)
(internal
quotation
marks
omitted).
The
doctrine
of
qualified immunity protects “all but the plainly incompetent or
those who knowingly violate the law.”
U.S. 335, 341 (1986).
interests—the
they
exercise
need
to
power
Malley v. Briggs, 475
This doctrine “balances two important
hold
public
irresponsibly
officials
and
the
accountable
need
to
when
shield
officials from harassment, distraction, and liability when they
perform their duties reasonably.”
223, 231 (2009).
Pearson v. Callahan, 555 U.S.
It “gives government officials breathing room
to make reasonable but mistaken judgments.”
Stanton v. Sims,
134 S. Ct. 3, 5 (2013) (per curiam) (internal quotation marks
32
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omitted).
serves
The
two
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application
purposes:
unnecessary
trial
of
first,
where
the
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the
to
qualified
protect
doctrine
immunity
an
doctrine
officer
plainly
from
applies
an
at
the
pretrial stage, see Johnson v. Jones, 515 U.S. 304, 312 (1995),
and
second
to
prevent
liability
when
a
trial
resolves
facts
establishing that qualified immunity is applicable, see Merchant
v. Bauer, 677 F.3d 656, 665 n.6 (4th Cir. 2012).
In determining whether an officer is entitled to summary
judgment on the basis of qualified immunity, we employ a twopart inquiry.
See Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014)
(per curiam).
Courts are “permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified
immunity
analysis
should
be
addressed
first
in
circumstances in the particular case at hand.”
U.S. at 236.
light
of
the
Pearson, 555
The first question is “whether the facts, viewed
in the light most favorable to the plaintiff, show that the
officer’s conduct violated a federal right.”
Smith v. Ray, 781
F.3d 95, 100 (4th Cir. 2015); see Saucier v. Katz, 533 U.S. 194,
201 (2001).
“The second [question] of the qualified-immunity
inquiry asks whether the right was clearly established at the
time the violation occurred such that a reasonable person would
have known that his conduct was unconstitutional.”
Ray, 781
F.3d at 100; see Ridpath v. Bd. of Governors Marshall Univ., 447
F.3d 292, 306 (4th Cir. 2006).
33
“The answer to both . . .
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questions must be in the affirmative in order for a plaintiff to
defeat a defendant police officer’s motion for summary judgment
on qualified immunity grounds.”
Miller v. Prince George’s Cty.,
Md., 475 F.3d 621, 627 (4th Cir. 2007) (internal alteration and
quotation marks omitted).
As neither question can be answered
in the affirmative in this case, Corporal Georgiades is entitled
to summary judgment based on qualified immunity.
A.
No Constitutional Violation
Osborne claims that he was arrested without probable cause
in
violation
unreasonable
of
the
seizures.
enforcement
officers
seizure
an
of
Fourth
unreasonable.”
Amendment’s
“The
from
individual
Fourth
making
effected
guarantee
against
Amendment
prohibits
law
unreasonable
seizures,
and
without
probable
cause
is
Brooks v. City of Winston–Salem, N.C., 85 F.3d
178, 183 (4th Cir. 1996).
Osborne was arrested pursuant to a
warrant, and the Fourth Amendment does not permit the issuance
of a warrant “but upon probable cause.”
U.S. Const. amend. IV.
An
valid
arrest
presumed
made
to
pursuant
rest
upon
to
a
facially
probable
cause,
and
warrant
Osborne
may
does
be
not
contend that the arrest warrant was invalid on its face.
Rather, Osborne claims that Corporal Georgiades misled the
magistrate
omitting
by
including
material
facts
facts
from
he
the
knew
to
warrant
be
false
and
application.
by
Our
analysis, therefore, is guided by Franks v. Delaware, 438 U.S.
34
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154 (1978), “as to whether asserted material false statements
and omissions in the . . . supporting affidavit[] . . . state a
constitutional claim.”
(4th Cir. 2012).
that
Corporal
Evans v. Chalmers, 703 F.3d 636, 649-50
To succeed on his claim, Osborne must prove
Georgiades
deliberately
or
with
a
“reckless
disregard for the truth” made false statements of material fact
in his affidavit, Franks, 438 U.S. at 171, or omitted from that
affidavit
“material
facts
with
the
intent
to
make,
or
in
reckless disregard of whether they thereby made, the affidavit
misleading,” United States v. Colkley, 899 F.2d 297, 300 (4th
Cir. 1990) (internal quotation marks omitted).
Furthermore, to
establish his claim, Osborne must prove that the fabricated or
omitted facts were material.
“It is well-established that a
false or misleading statement in a warrant affidavit does not
constitute a Fourth Amendment violation unless the statement is
necessary to the finding of probable cause.”
Wilkes v. Young,
28 F.3d 1362, 1365 (4th Cir. 1994) (emphasis added) (internal
quotation marks omitted).
1.
The Alleged False Statements in the Warrant Affidavit
Osborne contends that JMLO’s account of sexual abuse was
false, resulting from coercive interview techniques and pressure
applied by Corporal Georgiades.
And, according to Osborne, the
inclusion of this manufactured account in Georgiades’ warrant
affidavit
resulted
in
the
issuance
35
of
the
warrant
and
his
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unreasonable
seizure.
reasonable
jury
The
could
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district
certainly
court
found
conclude
that
that
“a
Corporal
Georgiades exerted pressure that resulted in the fabrication of
evidence against [Osborne]” based solely on the following:
that
Corporal Georgiades spoke by phone with White three times during
the interview and that Corporal Georgiades ended the interview
after JMLO indicated
J.A. 331.
The
district
absolutely
no
speculation.
court’s
support
in
conclusion,
the
in
record
and
my
view,
amounts
finds
to
rank
To survive summary judgment here, Osborne must
adduce
evidence
showing
caused
fabricated
or
that
Corporal
falsified
Georgiades
evidence.
See
deliberately
Devereaux
v.
Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc); Myers v.
Morris,
810
F.2d
1437,
1458
(8th
Cir.
1987)
(requiring
“a
specific affirmative showing of dishonesty”), abrogated on other
grounds, Burns v. Reed, 500 U.S. 478 (1991).
It is Osborne’s
burden
not
to
produce
evidence
of
fabrication,
Georgiades’
burden to negate it.
Georgiades asserted a general right to qualified immunity
in his opening brief to this court, but the majority is correct
that
he
did
not
specifically
challenge
the
district
court’s
ruling on the fabrication allegation. I think nevertheless we
should reach this issue for several reasons. First, Georgiades
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in his brief did claim the defense of qualified immunity. When
this defense is presented, a court may determine whether there
is
proof
that
constitutional
the
official
rights.
Second,
violated
the
record
there was no fabrication of evidence.
the
plaintiff’s
irrefutably
shows
There is not a shred of
evidence of any coercion or any fabrication of any type.
Georgiades’s
lawyer
used
a
substantial
portion
of
Third,
her
oral
argument to challenge the allegations of fabrication and she was
thoroughly
questioned
by
judges
on
the
panel
about
it,
all
without anyone objecting to its relevance or suggesting that
waiver precluded counsel from adressing the fabrication issue.
Fourth, given the importance of the interest the court has in
eliminating
baseless
claims
early
on,
I
would
take
this
opportunity to address and get rid of this allegation.
Osborne
presented
Georgiades
somehow
Osborne
sexual
of
absolutely
abuse,
and
evidence
JMLO
manipulated
no
into
the
district
falsely
court
sheer speculation in concluding otherwise.
basis
for
the
district
court’s
suggesting
that
accusing
relied
upon
The sole factual
opinion
was
that
Corporal
Georgiades and White spoke by telephone during the interview.
From
that
conjectured
fact
and
that
that
Georgiades
fact
alone,
directed
the
White
district
to
ask
court
questions
designed to manipulate JMLO into falsely accusing Osborne of
abuse.
The
majority
apparently
37
believes
we
are
bound
by
the
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opinion of the district court. If there were any facts in the
record to support his conclusion, I might agree. But this record
is completely devoid of any evidence that Officer Georgiades
exerted any pressure or fabricated any evidence.
First and foremost, the child had already told White about
Osborne’s
Osborne
molestation
had
done
to
of
her
her
and
before
described
there
was
in
detail
what
the
first
phone
conversation between Corporal Georgiades and White.
alone renders the fabrication claim frivolous.
This fact
Second, there is
absolutely no evidence in the record at all as to what was said
during
those
phone
conversations.
And,
third,
neither
the
district court in its order nor Osborne on appeal identified a
single improper question posed to JMLO during the interview,
which was recorded from start to finish and followed the widelyaccepted RATAC forensic interview model.
no
evidence
that
Georgiades
violated
Thus, there is simply
Osborne’s
constitutional
rights by causing fabricated evidence to be elicited during that
interview and this claim should be eliminated.
2.
Information Omitted from the Warrant Application
Osborne also claims that Corporal Georgiades deliberately
or with a reckless disregard for the truth omitted important
“contradictory
evidence”
from
the
warrant
application--namely
JMLO’s initial denials of abuse and the “dearth of any physical
evidence of abuse,” J.A. 333—in order to mislead the magistrate
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into
Doc: 50
issuing
judgment,
decide
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a
warrant.
concluding
that
(1)
Corporal
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The
district
that
a
Georgiades
court
reasonable
had
the
denied
summary
factfinder
requisite
could
intent
to
mislead the magistrate, and (2) that the omitted “contradictory
evidence”
was
material
because
finding of probable cause.”
it
“could
Id.
certainly
negate
a
In my view, and with due
respect for the district court, these decisions were clearly in
error.
a.
“To
satisfy
the
Intent
Franks’
intentional
or
reckless
falsity
requirement for an omission, the defendant must show that facts
were omitted with the intent to make, or in reckless disregard
of whether they thereby made, the affidavit misleading.”
United
States v. Tate, 524 F.3d 449, 455 (4th Cir. 2008) (internal
quotation
marks
omitted).
That
is,
“the
omission
must
be
designed to mislead or must be made in reckless disregard of
whether it would mislead.”
alteration
defendant
omitted).
must
show
To
that
Id. (internal quotation marks and
establish
the
“reckless
“officer
failed
disregard,”
to
inform
the
the
judicial officer of facts he knew would negate probable cause.”
Miller, 475 F.3d at 627 (internal question marks and alteration
omitted).
Officers
applying
for
a
warrant
“cannot
be
expected
to
include in an affidavit every piece of information gathered in
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the course of an investigation,” Colkley, 899 F.2d at 300, and
they are “not required to include every piece of exculpatory
information in [such] affidavits,” Evans, 703 F.3d at 651.
Not
every omission amounts to a constitutional violation:
[B]ecause
every
piece
of
information
cannot
be
expected to be included, the very process of selecting
facts to include for the demonstration of probable
cause must also be a deliberate process of omitting
pieces of information. Certainly, such intentional
omissions do not satisfy the requirement of Franks. .
. .
[If] this type of intentional omission is all
that Franks requires, the Franks intent prerequisite
would be satisfied in almost every case. Accordingly,
merely showing an intentional omission of a fact from
a
warrant
affidavit
does
not
fulfill
Franks’
requirements.
Tate, 524 F.3d at 455 (internal quotation marks and citations
omitted).
Other than the mere fact that Corporal Georgiades omitted
JMLO’s initial denials and the inconclusive medical report, the
record
is
bereft
of
evidence
suggesting
that
he
misled
the
issuing magistrate intentionally or recklessly. In fact, all of
the evidence is to the contrary. Neither the district court nor
Osborne point to any evidence of the required intent other than
the fact that allegedly contradictory evidence was omitted.
The
district court concluded that a jury could infer the requisite
intent or recklessness from the mere fact of omission itself.
This court, however, has refused to embrace “the validity of
inferring bad motive under Franks from the fact of omission [of
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contradictory
collapses
Filed: 02/08/2017
information]
into
a
‘intentionality’
independently
alone,
single
and
Pg: 41 of 55
for
inquiry
such
the
‘materiality’—which
necessary.”
Colkley,
an
two
elements—
Franks
899
inference
F.2d
states
are
301.
In
at
Colkley, we concluded that the defendant failed to show that the
officer
applying
for
the
warrant
intended
to
mislead
the
magistrate even though he omitted from his affidavit the fact
that
none
of
the
six
eyewitnesses
were
able
to
identify
defendant out of a photo lineup and that he used only the height
description provided by one eyewitness but did not mention that
other witnesses indicated the bank robber was shorter than the
defendant.
See id. at 300-01.
Likewise, in Simmons v. Poe, we
held that an officer had not acted with a reckless disregard for
the truth where he included in his affidavit only the profile
factors
that
were
consistent
with
the
suspect
and
omitted
several inconsistent profile factors as well as the victim’s
initial belief that her attacker was of a different race.
See
47 F.3d 1370, 1383-84 (4th Cir. 1995).
The
record
does
not
create
any
question
of
fact
as
to
whether Georgiades omitted JMLO’s initial denials or the results
of
the
medical
examination
with
the
intent
to
mislead
magistrate or with a reckless disregard for the truth.
the
In fact,
I am unable to find any evidence in the record showing that
Georgiades
even
knew
about
the
41
existence
of
Dr.
Lomonico’s
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report before he applied for the warrant.
the
record
contains
facts
relating
Actually, insofar as
to
Corporal
Georgiades’
intent with regard to the arrest warrant, they suggest that he
harbored no deceit and wanted to make sure he covered all his
bases before arresting Osborne.
the little girl.
He had seen the interview of
The opinion of Dion White, the experienced
social worker who interviewed JMLO, was that sexual abuse of
JMLO had indeed occurred.
He knew the child’s father had told
her not to tell anybody about what he had done.
In addition,
prior to applying for the arrest warrant, Georgiades took the
recording of the interview to Tobin, the prosecutor, for her
assessment of the case.
After watching the interview, which
included JMLO’s initial denials, and discussing the merits of
the case with Georgiades, Tobin wanted to move forward with the
prosecution.
prosecutor
Only
did
application,
after
Georgiades
which
receiving
prepare
specifically
recording of JMLO’s interview.
the
and
stated
go-ahead
submit
that
from
his
the
warrant
there
was
a
Thus, he disclosed the video to
the magistrate who could have watched and seen for himself what
JMLO said if he so desired.
The
consultation
with
Tobin
shows,
at
the
least,
that
Georgiades fully disclosed his evidence to the legal expert who
was
assigned
by
the
State
of
Maryland
to
handle
the
case.
Georgiades also extended to Osborne numerous invitations to tell
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his side of the story.
to
“railroad”
Pg: 43 of 55
None of the evidence points to an intent
Osborne.
Accordingly,
Osborne
has
failed
to
establish the requisite intent required to sustain his claim
that Georgiades violated his constitutional rights.
b.
“It
is
Materiality
well-established
that
a
false
or
misleading
statement in a warrant affidavit does not constitute a Fourth
Amendment violation unless the statement is necessary to the
finding of probable cause.”
Wilkes, 28 F.3d at 1365 (emphasis
added) (internal quotation marks omitted).
alleges
that
an
officer
has
omitted
Where a plaintiff
material
facts,
he
must
establish that without such omissions there would have been no
probable
cause.
See
Miller,
475
F.3d
at
632
(“[T]he
Constitution [does] not permit a police officer deliberately, or
with
reckless
disregard
for
the
truth,
to
make
material
misrepresentations or omissions to seek a warrant that would
otherwise be without probable cause.”).
In
concluding
that
the
facts
omitted
from
Georgiades’
affidavit were material, the district court did not apply the
correct standard of materiality.
The district court stated that
the omitted facts had the “potential to negate probable cause”
and that a “reasonable judicial officer could choose to credit
this evidence over the evidence of JMLO’s account of abuse.”
J.A. 333.
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This
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court
rejected
Pg: 44 of 55
virtually
this
same
formulation
of
materiality in Colkley, where the district court “believed that
the
affiant’s
omission
was
material
because
it
‘may
have
affected the outcome’ of the probable cause determination.”
F.2d at 301.
899
We explained that the court had “misstated” the
Franks materiality standard, under which “an omission must do
more than potentially affect the probable cause determination:
it must be necessary to the finding of probable cause.”
(emphasis
added)
possibility
that
(internal
the
quotation
omitted
facts
marks
could
Id.
omitted). *
be
credited
The
by
a
magistrate over the facts included in the warrant affidavit does
not
make
such
facts
material
under
this
standard.
For
the
omitted facts to be material, their inclusion in the warrant
affidavit must necessarily defeat probable cause.
See id.
In order to assess the materiality of an omission, we must
insert the omitted information “and then determine whether or
*We
further noted that the idea that a warrant affidavit
must include “potentially exculpatory evidence” was akin “to
import[ing] the rule of Brady v. Maryland into the warrant
application process.”
United States v. Colkley, 899 F.2d 297,
302 (4th Cir. 1990) (internal citation omitted).
Brady is
concerned with the fairness of criminal trials and “with the
justice of the finding of guilt that is appropriate at trial,”
while Franks “recognizes that the information an affiant reports
. . . may not ultimately be accurate . . . so long as the
affiant did not deliberately mislead the magistrate.”
Id. at
303 (internal quotation marks omitted).
Thus, “a requirement
that all potentially exculpatory evidence be included in an
affidavit would severely disrupt the warrant process.” Id.
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not the ‘corrected’ warrant affidavit would establish probable
cause.”
Miller,
omitted).
475
F.3d
at
628
(internal
quotation
marks
Even if JMLO’s initial denials and the result of Dr.
Lomonico’s
examination
had
been
inserted
into
Corporal
Georgiades’ affidavit, there was still a sufficient basis for a
reasonable
jurist
to
find
described
the
statements
interview
and
included
activity
that
would
probable
made
by
details
have
been
cause.
JMLO
did
not
necessarily
negate
during
from
JMLO
beyond
the
experience of a typical five-year old.
JMLO’s
The
affidavit
her
regarding
forensic
sexual
understanding
and
And the medical report
claims,
as
Dr.
Lomonico
himself seemed to recognize, expressly stating that his exam did
not
rule
out
abuse.
The
conflicting
evidence
presented
a
question for the jury as to JMLO’s credibility and the ultimate
guilt of Osborne, but it did not necessarily defeat probable
cause for an arrest.
B.
No Clearly Established Constitutional Right
Because “[q]ualified immunity shields an officer from suit
when
[]he
deficient,
makes
a
decision
reasonably
that,
misapprehends
even
the
if
constitutionally
law
governing
the
circumstances,” we focus our inquiry on the body of law at the
time of the police conduct to determine “whether the officer had
fair
notice
that
[the]
conduct
was
unlawful.”
Haugen, 543 U.S. 194, 198 (2004) (per curiam).
45
Brosseau
v.
The clearly-
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established inquiry “must be undertaken in light of the specific
context
of
the
case,
not
as
Saucier, 533 U.S. at 201.
a
broad
general
proposition.”
But “[w]e do not require a case
directly on point” to find the requirement satisfied so long as
“existing precedent [has] placed the statutory or constitutional
question beyond debate.”
Ashcroft v. al–Kidd, 131 S. Ct. 2074,
2083 (2011) (internal quotation marks omitted).
In deciding whether an officer’s conduct violated clearly
established law, “we have long held that it is case law from
this
Circuit
and
the
Supreme
Court
that
whether a right is clearly established.”
312,
322
(4th
Cir.
2013)
provide
notice
of
Hill v. Crum, 727 F.3d
(internal
quotation
marks
and
alteration omitted).
In determining whether a right was clearly established
at the time of the claimed violation, courts in this
circuit ordinarily need not look beyond the decisions
of the Supreme Court, this court of appeals, and the
highest court of the state in which the cases arose. .
. . If a right is recognized in some other circuit,
but not in this one, an official will ordinarily
retain the immunity defense.
Id. (internal quotation marks omitted).
The
district
court
determined,
and
my
friends
in
the
majority agree, that Corporal Georgiades should have understood
that his conduct was unlawful because it was clearly established
in 2010 under Franks v. Delaware that an officer violates the
constitution by deliberately, or with a “reckless disregard for
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the
Doc: 50
truth,”
affidavit.
Filed: 02/08/2017
omitting
material
Pg: 47 of 55
facts
from
an
arrest
warrant
438 U.S. at 155-56.
Although
the
general
Franks
principle
well-established, we do not stop there.
is
unquestionably
The law requires that
we go farther and assess the right in a more particularized
sense in the context of the specific facts of this case.
As the
Supreme Court has admonished, courts must not “define clearly
established law at a high level of generality,” al-Kidd, 131 S.
Ct. at 2084, but rather must identify a constitutional right
that was “‘clearly established’ in a more particularized, and
hence more relevant, sense,” Anderson v. Creighton, 483 U.S.
635, 640 (1987).
Thus, even though it was clearly established on a general
level
that
an
officer
could
not
omit
material
facts
from
a
warrant application with a reckless disregard for the truth, the
contours of this right were not clearly established by Supreme
Court or Fourth Circuit precedent in the particularized context
of this case.
In light of cases such as Colkley and Simmons, it
was not clear that Officer Georgiades’ omissions, which would
not have defeated probable cause, were unconstitutional.
The
majority cannot cite a single case to show that the right they
claim was clearly established.
The general rule established by
Franks did not afford Corporal Georgiades fair notice that his
specific conduct was unlawful, and my friends in the majority
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cannot
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show
that
such
Pg: 48 of 55
conduct
was
contrary
to
clearly
established law.
III.
A.
Georgiades
argued
that
the
issuance
of
the
indictment
settled the question of whether there was probable cause for the
prior arrest of Osborne.
The indictment is regular on its face
and there are absolutely no allegations in Osborne’s complaint
asserting
any
wrongdoing
before the Grand Jury.
or
improprieties
in
the
proceedings
Likewise there is no evidence in the
Joint Appendix regarding what evidence the Grand Jury had before
it.
There being nothing out of the ordinary regarding the Grand
Jury proceedings or the indictment, I would not speculate about
what might have happened or what could have happened in the
Grand
Jury
room.
I
would
hold
at
the
very
least
that
the
indictment broke any chain of causation that might have existed.
See Durham v. Horner, 690 F.3d 183, 189-90 (4th Cir. 2012).
Besides,
there
was
an
independent
decision
made
by
the
prosecutor that the evidence was strong enough to go forward
with the case before Officer Georgiades ever sought a warrant.
It
is
merits
uncontradicted
that
Officer
of
with
Diane
his
case
Attorney, before making an arrest.
Georgiades
Tobin,
the
went
Deputy
over
the
State’s
Tobin watched the entire
video of the child’s statements, including the “denials” at the
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beginning of the interview and nevertheless accepted the case
for prosecution. We should remember here that in a malicious
prosecution context, similar in principle to the issues before
us, we quoted with approval the following statement:
A law enforcement officer who presents all relevant
probable cause evidence to a prosecutor . . . is
insulated from a malicious prosecution claim where
such intermediary makes an independent decision . . .
unless the officer (1) concealed or misrepresented
facts or (2) brought such undue pressure to bear on
the intermediary that the intermediary's independent
judgment was overborne.
Evans v. Chalmers, 703 F.3d 636, 648 (4th Cir. 2012) (internal
quotation marks omitted).
Here, there is no evidence either exception applies, and
the approval of the case for prosecution by the Deputy State’s
Attorney and her subsequent submission of the case to the Grand
Jury
should
because
he
insulate
sought
and
Officer
Georgiades
obtained
this
from
any
prosecutor's
liability
independent
evaluation before he ever applied for an arrest warrant.
She
saw the “denials” and still advised Officer Georgiades she would
go forward with the case.
Under these circumstances, no fault
can be attributed to the officer, and he should receive the
benefits
of
immunity
as
well
as
our
commendation
for
the
appropriate steps he took.
The majority would not reach this issue because it was not
argued to the district court. Although it does appear to be
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raised for the first time on appeal, I would reach it for two
reasons: First, Osborne did not object to this question being
before us and in fact briefed the issue for our consideration.
Second, there is no evidence, or even any allegations, of any
wrongdoing
with
regard
to
the
grand
jury
indictment
or
the
submission of the case to the prosecutor for a legal evaluation.
B.
My friends in the majority and I agree that the district
court used the wrong standard to evaluate the effect of the
omissions on the question of probable cause. The correct test is
whether
the
friends
do
reliable
view,
omissions
not
to
what
necessarily
believe
establish
the
even
five-year-old
negated
child’s
probable
JMLO
probable
responses
cause
relates
cause.
are
reasonably
because,
about
the
My
in
two
their
nights
cannot be squared with her initial denials and lack of physical
injury.
I must be watching a different interview video because
I see nothing that negates probable cause or warrants such a
dismissal of a five-year-old victim’s account of her abuse.
The events the child described happened on two separate
nights
that
necessary
exactly
nights.
her
for
what
What
experienced
father
the
her
interviewer
action
I
had
do
or
is
to
what
see
forensic
in
his
try
to
statements
a
bed,
make
were
five-year-old
interviewer—both
50
and
it
JMLO
made
girl
was
not
pinpoint
on
which
telling
verbally
an
and
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demonstratively with dolls—about sex acts committed on her.
it
strains
reason
manipulated
by
to
anyone
conclude
into
that
making
statements during the interview.
she
was
these
coached
graphic
And
or
sexual
As I pointed out earlier, the
“denials” that my friends make so much of do not bother me in
the least.
initial
I frankly do not see how a five year old child’s
refusal
to
talk
to
a
stranger
about
being
sexually
abused by her father, who has told her not to tell anyone about
what he did, can have anything more than a fleeting effect on an
evaluation
of
the
happened to her.
truthfulness
of
her
description
of
what
And the doctor’s report does not count for
much, as it is equivocal and expressly does not exclude the
prior
occurrence
of
some
type
of
sexual
abuse.
Given
that
sexual abuse does not necessarily result in trauma, I would not
hesitate
in
probable
cause
happened.
saying
the
doctor’s
established
by
report
JMLO’s
does
not
negate
descriptions
of
the
what
In short, the so-called omissions were not material
and do not come close to preventing the arrest of Osborne.
IV.
The majority relies on the prudential doctrine of waiver to
dispose of virtually every issue in this appeal, including the
question of whether the law was clearly established at the time
of Corporal Georgiades’s alleged constitutional violations.
An
appellate court, of course, always possesses discretion to reach
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an otherwise waived issue.
Pg: 52 of 55
See United States v. Vinson, 805
F.3d 120, 122 n.1 (4th Cir. 2015).
But the circumstances in the
case before us make it particularly appropriate that we exercise
our
discretion
to
decide
whether
the
law
was
clearly
established.
First,
reach
an
it
is
especially
otherwise
waived
proper
issue
that
that
if
an
appellate
issue
is
court
logically
antecedent to, and ultimately dispositive of, the dispute before
it.
For example, in United States National Bank of Oregon v.
Independent
concluded
Insurance
that
the
Agents
of
Eleventh
America,
Circuit
the
Court
Supreme
of
Court
Appeals
had
properly decided an issue first raised in supplemental postargument
briefing,
even
though
the
appellants
had
raise it in either their opening or reply brief.
439, 447 (1993).
issue
which
had
failed
to
See 508 U.S.
The Court reached this conclusion because the
not
been
raised
was
“antecedent
to”
and
“dispositive of” the question addressed in the opening brief.
Id.
The same reasoning applies here. The question of whether
the
law
was
clearly
established
is
“antecedent
to”
and,
if
decided in the appellants’ favor, “dispositive of” the issue
that
is
before
us
on
appeal—whether
Corporal
shielded from trial by qualified immunity.
Georgiades
is
If the law was not
clearly established, then it is irrelevant whether or Corporal
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Georgiades
Filed: 02/08/2017
actually
violated
Pg: 53 of 55
the
law
because
he
would
be
shielded by qualified immunity and, as a result, entitled to
judgment as a matter of law.
See Behrens v. Pelletier, 516 U.S.
299, 306 (1996) (“Unless the plaintiff's allegations state a
claim
of
violation
of
clearly
established
law,
a
defendant
pleading qualified immunity is entitled to dismissal before the
commencement of discovery.” (internal quotation marks omitted)).
Second, the standard policy bases for applying the waiver
doctrine
do
not
apply
immunity context.
with
the
same
force
in
the
qualified
Much like the final judgment rule, see 19
James Wm. Moore, Moore’s Federal Practice § 201.10[1] (3d ed.
2011) (“The purposes of the final judgment rule are to avoid
piecemeal litigation, [and] to promote judicial efficiency . . .
.”),
the
waiver
doctrine
aims
to
“preserve[]
judicial
resources,” United States v. Benton, 523 F.3d 424, 428 (4th Cir.
2008).
Qualified immunity is an “immunity from suit rather than
a mere defense to liability; and like an absolute immunity, it
is effectively lost if a case is erroneously permitted to go to
trial.”
Mitchell
Accordingly,
even
v.
Forsyth,
though
472
U.S.
interlocutory
511,
appeals
526
are
(1985).
generally
disfavored, immediate review of a district court’s denial of a
claim of qualified immunity is permitted “to the extent that it
turns on an issue of law.”
Id. at 530.
Likewise, in light of
the strong policy favoring an official’s “entitlement not to
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stand trial or face the other burdens of litigation,” id. at
526, we should exercise our discretion here and decide whether
the
law
was
clearly
established
at
the
time
of
the
alleged
violation—all the more so where, as here, the question is not
even close on the merits.
Finally,
the
majority’s
produces an ironic result.
qualified
immunity
in
dogged
application
of
waiver
Even if Georgiades did not raise
this
appeal,
he
raised
it
as
an
affirmative defense in his answer to the complaint and will thus
be permitted to press the defense when the case goes to trial.
In my view, the majority’s insistence on avoiding the merits and
applying the waiver rule in this case does nothing except kick
the can down the road.
V.
The
initial
experience
in
denials
child
by
sexual
JMLO
are
abuse
consistent
cases
where
with
common
threats,
or
innocent promises by children to keep a secret, are the norm and
easily account for the denials that are so familiar to those who
work
in
this
area.
physical trauma.
Likewise,
the
fact
that
there
was
no
The absence of this information in a warrant
application does not undermine the probable cause established by
this
five-year-old
girl’s
detailed
abuse by her father.
54
description
of
the
sexual
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Finally, the majority has elected not to publish this case.
The redeeming feature of this choice is that under our law this
case
cannot
qualified
be
used
immunity
in
the
purposes.
will be irrelevant.
future
In
that
as
legal
context,
authority
for
thankfully,
it
See Hogan v. Carter, 85 F.3d 1113, 1118
(4th Cir. 1996) (en banc) (“Since unpublished opinions are not
even regarded as binding precedent in our circuit, such opinions
cannot
be
violated
considered
clearly
in
deciding
established
law
whether
for
entitlement to qualified immunity.”).
particular
purposes
of
conduct
adjudging
Nevertheless, I dissent
because, in my view, the lower court decision must be reversed.
55
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