Smith v. Angelo et al
MEMORANDUM. Signed by Judge Gregory M. Sleet on 5/25/2017. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Gordon G . .Smith,
David Angelo, Robert Coupe, James Fraley,
Carl Danberg, and David Weaver,
Civil Action No. 14-1066-GMS
·On August 19, 2014, Plaintiff Gordon Smith filed suit against Defendants David Angelo,
Robert Coupe, Cad Danberg, James Frale_y, and Unknown Defendants. (D.I. 2). Plaintiff filed
an Amended Complaint on April 22, 2016, against David Angelo, Robert Coupe, James Fraley,
Carl Danberg, and David Weaver. (D.I. 20). Plaintiff brought suit under§ 1983, alleging false
arrest, false imprisonment, excessive force, conspiracy, and failure to properly hire, train, and/or
supervise. Id. .Plaintiffalso brought state law claims for negligent infliction of emotional harm,
intentional infliction of emotional harm, and gross negligence. Id. All of Plaintiff's claims arise
out ofthe events that unfolded on August 28, 2012.
Presently before the court is Defendants' Motion for Summary Judgment on all of
Plaintiff's claims. For the reasons that follow, the .court will grant Defendants' motion. 1
The court simultaneously denies Plaintiffs Motion for Leave to File a Second Amended Complaint. (D.I.
55). Plaintiffs motion seeks to add Detective Paul R. Surowiec as a defendant to this action. (D.I. 55-1 if 3). Such
an addition would be futile. The court determined, based on the present record, that Detective Surowiec had
probable cause to arrest Plaintiff. The facts Plaintiff seeks to add in the Second Amended Complaint would have no
effect on the court's finding that probable cause existed based on both Surowiec's and Angelo's knowledge at the
time of arrest. The Second Amended Complaint also adds nothing to Plaintiffs excessive force and gross
negligence claims. For those reasons, the court denies Plaintiffs motion.
Around 6:48pm on August 28, 2012, Delaware State Police received a call from Marvin
Miller that a woman was lying beside a car in a ditch. A-179. According to Mr. Miller, the woman
was wearing only ber underwear, she was saying that someone wrote something on her, and she
was sayingthatsomeone cuther. 2 Id. In response to that call, Trooper Sidney Nash was dispatched
by Delaware State Police to 8184 Westville Road in Camden Wyoming, Delaware, to investigate
that report. A-179; A-333, 9:13-20. When Trooper Nash arrived on the scene, he observed exactly
what Mr. Miller had reported: a white female-later identified as Tiffany Smith-lying on her
stomach on the shoulder of the roadway with just her underwear on and writing on her body. A334, 12:20-13: 10. Trooper Nash observed the words "bitch" and "die" on her stomach along with
a smiley face drawing. Id. 17:14--17.
The Delaware State Police dispatch-referred to as KentCom-had a record of Mr.
Miller's call, reflecting that Mr. Miller called-in around 6:48pm on August 28, 2016. A-179.
Immediately after Mr. Miller called in, the narratives that went out over KentCom stated th?-t there
was "a female lying beside car in the ditch," she "only [had] underwear on, and she was claiming
Though neither party raised hearsay or admissibility objections, the court thinks it wise to obviate any
future objections to the evidence on which the court relied. "The rule in this circuit is that hearsay statements can be
considered on a motion for summary judgment if they are capable of being admissible at trial." Ste/wagon Mfg. Co.
v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1275 n.17 (3d Cir. 1995). Further, the Third Circuit has made clear that
"probable cause may rest upon hearsay, provided there exists 'a substantial basis for crediting the hearsay."' Torres
v. City ofPhiladelphia, No. 13-2710, 2016 WL 7396723, at *2 (3d Cir~ Dec. 21, 2016) (quoting United States v.
Ventresca, 380 U.S. 102, 108 (1965)); see United States v. Welebir, 498 F.2d 346, 350 n.2 (4th Cir. 1974)
(explaining that hearsay, and even double hearsay, can provide a legal basis for a search warrant). In Torres, the
Third Circuit found that the arresting officer had probable cause based on his testimony that he relied on statements
by medical personnel and statements by the victim's family. See Torres, 2016 WL 7396723, at *2. Further, it
seems likely that the Delaware State Police dispatch report and the police officer reports would be admissible under
Federal Rule of Evidence 803(8), the public records exception to the hearsay rule. Additionally, the court notes that
a number of the statements made to dispatch and to the officers involved are not used to prove the truth of the matter
asserted, but rather, to evidence that the officers involved in the arrest heard the statements. See Fed. R. Evid.
80l(c)(2); see also Woods v. City of Chicago, 234 F.3d 979, 986 (7th Cir. 2000) (holding that as long as a
reasonably credible witness or victim informs the police that someone has committed a crime, the officers have
probable cause to arrest that person-"the existence of probable cause to arrest does not depend on the actual truth
of the complaint").
"someone cut her on [her] throat and stomach." Id. Shortly after units were dispatched to the
scene of the crime, further narratives were added to the dispatch report stating that the victim had
writing on her and that the suspect was Gordon Smith. Id. The dispatched units arrived on the
scene at around 6:57pm, and the KentCom report also stated that "Troop 3 [was] aware." Id. At
around 7:00pm, KentCom reported thatthe victim was Tiffany Smith. Id. Between 7:06pm and
7:07pm, KentCom reported that the suspect was Gordon Smith, he was on home probation, he had
prior assault charges, he had an active PFA against him dated August 28, 2012, and he was a
"convicted domestic offender." Id. At 7:15pm, KentCom reports that Tiffany Smith's mother
called the Delaware State Police just before Mr. Miller called. A-177. Tiffany Smith's mother
told the police that she received a call from Tiffany Smith and Tiffany told her mother that she had
been assaulted and she did not know where she was. Id. Tiffany Smith's mother also told the
dispatcher that theihad been to court earlier that day to get a Protection from Abuse order against
Gordon Smith, and at that hearing, Mr. Smith threatened to kill Tiffany Smith and their children.
Id. That information was reported over KentCom at arounq 7:17pm. Id. At around 7:15pm,
KentCom notes that Detective Cosgrove might be reporting to the scene of the crime. A-178.
After Tiffany Smith was transported from the scene to the hospital by Emergency Medical
Services, Trooper Nash questioned Mr. Miller about how he found Ms. Smith. Id. According to
Mr. Miller, he was driving westbound on Westville Road when his passenger saw Ms. Smith lying
on the road. Id. Mr. Miller turned around and went back to where Ms. Smith was lying. Id. 20:611. According to Trooper Nash's deposition testimony and his police report, Mr. Miller tried to
speak to Ms. Smith, but he could not understand her so he called 911. Id. 21:2-12; A-188. Mr.
Miller was told by dispatchers to ask Ms. Smith who attacked her. Id. 21 :2-12. When asked who
assaulted her, Ms. Smith replied that it was her ex-husband, Gordon Smith. Id. She also told Mr.
Miller that ''they kept kicking and punching [her]." A-18 8. When Trooper Nash asked Mr. Miller
if Tiffany identified who "they" were, Mr. Miller said "no." Id.
Around the same time that Mr. Miller called 911 to report a woman lying naked on the side
of the road, Probation Officer Angelo, along with two other Probation Officers, Stagg and Wallace,
were visiting the homes of probationers under their watch. A-055, 19:9-11. They were listening
to KentCom when they heard a report stating that a woman was found naked lying on Westville
Road with cut and stab wounds. Id. 19:11-18. Angelo also testified that Kentcom identified the
victim as Tiffany Smith, and that her husband, Gordon G. Smith, was a suspect in the crime. Id.
19:18-21. Angelo contacted State Police Troop 3, and told Trooper First Class Blomquist that,
because Gordon Smith was part of the Global Positioning Satellite (GPS) monitoring program,
Angelo and his fellow probation officers could find and detain Mr. Smith. Id. 19:22-20. Mr.
Smith was on GPS monitoring as a condition of his release pending trial. A-023, 65 :5-12. Angelo
was advised that a Sergeant would calJ him back and let him know if Mr. Smith needed to be
detained. Id. 20:4-c5.
Angelo, Stagg or Wallace-the record is not clear as to which one-called the GPS
monitoring center to get Mr. Smith's coordinates so that they could get in position should they
receive instruction from Troop 3 to find and detain Mr. Smith. A-061, 43:16-21. At around
7:10pm, Angelo, Stagg and Wallace met up with Probation Officer Wheeler so that they would
have an additional person for back-up should they require it. Id. 44:21-13.
Detective Surowiec, the on-call detective for Troop 3, was the officer that gave Probation
Officer Angelo the "go-ahead" to detain Mr. Smith. A-190. Detective Surowiec spoke with both
Officer Saucier and Detective Cosgrove before instructing Angelo to detain Mr. Smith. Id. Officer
Saucier was the one sitting atthe desk in Troop 3 on the night of August 28, 2012. A-347, 8:10-
11. According to Officer Saucier' s deposition testimony, when you are the one sitting at the desk,
you are the person that everyone on the road calls for advice or to report what is going on that
night. Id. 8:17-21. Officer Saucier testified that it would then be her duty to inform someone like
Surowiec, the detective on-call for that night, of what was occurring "on the road." Id. 8:22-9:20.
Detective Surowiec's police report from the night of August 28, 2012, notes that he received
reports from the scene that a victim was found in a ditch on Westville Road, the victim had been
stabbed multiple times and her throat was cut. A-190. Detective Surowiec also noted that troopers
at the scene relayed that the victim was Tiffany Smith and that she identified her attacker as her
Gordon Smith. Id.
Detective Surowiec' s police report states that he determined that Gordon Smith should be
detained after speaking with Detective Cosgrove. Id. Surowiec felt that "due to the lengthy history
between the two parties, the severity of the incident . . . , the safety of the couple's children, as
well as the safety of the public in general," detaining Mr. Smith, at least briefly, was the correct
call. .Jd. Surowiec's police report also notes that he was concerned that if the incident was an
attempted homicide, Mr. Smith may try to flee. Id.
After Detective Surowiec called Angelo and advised him that he should attempt to find and
detain Mr. Smith, Probation Officer Wallace reached out to the probation officers' supervisor,
Officer Gomez. A-062, 48: 14--15: 1. Wallace informed Officer Gomez that Delaware State Police
Troop 3 had requested assistance from probation in detaining Mr. Smith. Id. 48: 17-20. Supervisor
Gomez approved the detainment ofMr. Smith. Id. 49:17-51:18. Mr. Smith's GPS points appeared
to be stationary at the Texas Roadhouse at 4568 South Dupont Highway. A-063, 52:8-9. After
looking around in the parking lot of the Texas Roadhouse, the probation officers located Mr. Smith
sitting in the driver's seat of his vehicle. Id. 52:21-53:3. Angelo approached Mr. Smith's vehicle
from the passenger side, while the other three probation officers approached the vehicle from the
driver's side. A-055; 20:20-21:1. Angelo knocked on the front window of Mr. Smith's car and
told Mr. Smith to step out of the vehicle. Id. 21:1-2. When Mr. Smith stepped out of the vehicle,
he stated that the probation officers "wrestl[ed]" with him a little bit and told him to "quit fighting."
A-029, 71:11-16. Mr. Smith stated at his deposition that he was stiff from the shock of the
incident. Id. 71:16-18. Mr. Smith also stated that one of Angelo's fellow probation officers
pointed a gun at him. Id. 71 :18-21. Angelo confirmed that Officer Wheeler did point his gun at
Mr. Smith. A-063, 53 :2~. Officer Wheeler placed Mr. Smith in handcuffs and told him that he
was being detained at the request of the Delaware State Police. A-030, 72:1-6; A-055, 21:2-5.
Officer Wheeler was also responsible for putting Mr. Smith into the patrol car. A-031, 73:2-7.
Mr. Smith asked the probation officers what he did wrong. A-029, 71 :23-24. The probation
officers advised Mr. Smith that he should remain quiet until he spoke with a detective at Troop 3.
Surowiec's police report notes that Angelo took Mr. Smith into custody at 7:32pm. A-190.
After Mr. Smith was transported to Troop 3, he was placed in cell one because two females were
on the detention bench and the interview room was being used. A-182. Once it was determined
that Tiffany Smith staged the scene, Sergeant Cosgrove went to Troop 3 and took Mr. Smith out
of the cell. Id. Cosgrove brought Mr. Smith to the interview room to explain the situation and ask
him what he had done that day. Id. After the conversation in the interview room, Cosgrove drove
Mr. Smith back to the Texas Roadhouse. Id. Mr. Smith testified during his deposition that he
believes he was in the cell for about two and a half hours. A-041: 11-18.
STANDARD OF REVIEW
Summary judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law." Fed. R. Civ. P. 56(c); see also Celotex C01p. v. Catrett, 477 U.S. 317, 322 (1986). The
moving party bears the burden of proving that no genuine issue of material fact exists. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986). A fact is material if
it "could affect the outcome" of the proceeding. Lamontv. New Jersey, 637 F.3d 177, 181 (3d Cir. ·
There is a genuine issue "ifthe evidence is sufficient to permit a reasonable jury to return
a verdict for the non-moving party." Id. When determining whether a genuine issue of material
facts exists, the district court must view the evidence in the light most favorable to the nonmoving
party and draw inferences in that party's favor. Wishldn v. Potter, 476 F.3d 180, 184 (3d Cir.
2007). If the moving party is able to demonstrate an absence of disputed material facts, the
nonmoving party must then "come forward with 'specific facts showing that there is a genuine
issue for trial."' Matsushita, 475 U.S. at 587 (citing Fed. R. Civ. P. 56(e)).
The existence of some evidence in support of the nonmoving party will not be sufficient
for denial of a summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). Rather, the nonmoving party must present enough evidence to enable a jury to reasonably
find for it on that issue. Id. The party opposing summary judgment must present more than just
"mere allegations, general denials, or ... vague statements" to show the existence of a genuine
issue. Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991). As such, a nonmoving party
must support their assertion that a material fact is in dispute by: "(A) citing to particular parts of
materials in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials"; or "(B) showing that the materials cited do
not .establish the absence or presence of a genuine dispute, orthat an adverse party cannot produce
admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1 ). The moving party is entitled to
summary judgment as a matter of law if the nonmoving party fails to make a sufficient showing
on an essential element of its case for which it has the burden of proof. Celotex, 477 U.S. at 322.
In§ 1983 cases specifically, the existence of probable cause is usually a question of fact
for the jury. Sherwoodv. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997). When considering a motion
for summary judgment, a court may conclude, however, "that probable cause did exist as a matter
oflaw if the evidence, viewed most favorably to Plaintiff, reasonably would not support a contrary
factual finding." Id.
Section 1983 Claims
Section 1983 provides that:
Every person who, under color of any statute, ordinan~e, regulation,
custom, or usage, of any State or Territory of the District of
Columbia, subjects, or causes to be subjected, any -citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress ....
42 U.S.C. § 1983. Section 1983 does not itself create substantive rights. Groman v. Twp. of
Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Instead, it provides a remedy for violations ofrights
created by federal law. Id. In order to state a claim for relief under § 1983, "a plaintiff must allege
the violation of a right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of state law.,; West v.
Atldns, 487 U.S. 42, 48 (U.S. 1988).
Here, Plaintiff raises claims for false arrest and false imprisonment. 3 Essentially, Plaintiff
contends that his Probation Officer, David Angelo, arrested him without probable cause in
violation of Plaintiff's Fourth Amendment rights. Defendants do not dispute that Angelo was
acting under the color of state law when he arrested Plaintiff. The court, therefore, focuses its
analysis on whether or not there was a Constitutional violation of Plaintiff's Fourth Amendment
To satisfy the prima facie case for false arrest under the Fourth Amendment, "a plaintiff
must establish: (1) that there was an arrest; and (2) that the arrest was made without probable
cause." James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012). The Fourth Amendment
prohibits arrests without "probable cause, supported by Oath or affirmation." U.S. Const. amend.
IV. "[P]robable cause to arrest exists when 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
arrested:" Orsatti v. New Jersey State
Police, 71 F.3d 480,483 (3d Cir. 1995). ';['he standard for assessing whether probable cause existed
at the time of arrest recognizes the interests of both the citizen-protection against "unreasonable
search and seizures, U.S. Const. amend. IV.-and the police officer-the ability to take quick
action "before necessarily obtaining evidence sufficient to prove guilt beyond a reasonable doubt."
Dempsey v. Bucknell Univ., 834 F.3d 457, 467 (3d Cir. 2016).
Despite the probable cause standard outlined above, it is not always necessary for the
arresting officer himself to possess the facts and circumstances sufficient to warrant a reasonable
person to believe an offense has been committed. See Rogers v. Powell, 120 F.3d 446, 453 (3d
3Plaintiffs false imprisonment claim is not distinct from his false arrest claim. The essence of both claims
is that the arrest was made without probable cause. See She1Wood, 113 F.3d at 401 ("A false imprisonment claim
under§ 1983 which is based on an arrest made without probable cause ... is grounded in the Fourth Amendment's
guarantee against umeasonable seizures.").
Cir. 1997). An arrest can still be legal when the arresting officer relies on statements issued by
fellow officers that possessed the requisite basis to seize the suspect. Id. In that circumstance, the
fellow officers issuing the statements must "possess the facts and circumstances necessary to
support a finding" of probable cause. Id. The Third Circuit has definitively stated that "[t]he
collective knowledge of the investigating officers is measured in determining probable cause" to
make an arrest. United States v. Belle, 593 F.2d 487, 497 n. 15 (3d Cir. 1979).
Defendants allege that Angelo's actions were "protected under the long recognized fellow
officer/collective knowledge doctrine:" (D.I. 53 at 6). According to Defendants, Angelo could
rely on the information provided by the KentCom dispatch calls in making his arrest. Additionally,
Defendants argue that Angelo was justified in following his supervisor's instructions and Detective
Surowiec's request that Smith be found and detained. (D.I. 53 at 3).
Plaintiff contends that the collective knowledge doctrine is inapplicable to this case
because "the totality of the circumstances demonstrate that there was no probable cause or
to detain Mr. Smith." (D.I. 60 at 11). In order for the collective knowledge
doctrine to ·apply, according to Plaintiff, Detective Surowiec needed probable cause to arrest
Plaintiff for that probable cause to then be imputed to Angelo when he acted in accordance with
Surowiec's instruction. Id. Interestingly, Plaintiff concludes that Angelo relied solely "upon
instruction from Detective Surowiec in order to conclude that Plaintiff should be detained."
Plaintiff posits that since Detective Nash reported to Surowiec and Detective Weaver what he had
observed at the scene where Tiffany Smith was found, and Detective Weaver concluded that he
· would not have had Plaintiff detained, Surowiec was wrong to conclude that Plaintiff should be
The court must first clarify that, though Plaintiff argues both that there was no reasonable
suspicion and that there was no probable cause, the only issue here is whether or not probable
cause existed. There is really no way, according to relevant case law, that Plaintiffs' detainment
could be considered an investigatory stop. See Hayes v. Florida, 470 U.S. 811, 816 (1985)
(explaining that an investigation becomes an arrest when a person is forcibly taken from a "place
in which he is entitled to be and transported[ ed] ... to the police station, where he is detained,
although briefly, for investigative purposes"). Accordingly, Plaintiff's detainment cannot be
predicated on reasonable suspicion. See Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673,
675, 145 L. Ed. 2d 570 (2000) (explaining that an officer can conduct a brief investigatory stop
when the officer had a "reasonable, articulable suspicion that criminal activity is afoot"). Plaintiff
was taken from his car, transported to the police station, and briefly held in a cell for investigative
purposes. Such a "detainment" is sufficiently like an arrest to necessitate that it be made based on
probable cause. See Hayes, 470 U.S. at 816.
The court finds that probable cause to arrest was based on both Detective Surowiec's
knowledge, imputed to Angelo, and Angelo's own knowledge derived from the reports dispatched
Angelo testified at his deposition that he decided to detain Plaintiff "[based] on the request
of the Delaware State Police thathe was atthe time a suspect in a crime." A-056, 24:15-17. When
Defendants' attorney asked Angelo if he relied upon information that was conveyed to him by
Detective Surowiec, Angelo responded that he relied on "[i]nformation that was broadcast over
KentCom." Id. 24:21-24. When asked if he would have detained Plaintiff without Detective
Surowiec's request, Angelo responded: "Yes, had I heard the broadcast that he was a suspect in a
crime." Id. 25:7-8. The record is clear though that Angelo waited for Surowiec's instruction
before arresting Plaintiff.
Accordingly, the court has analyzed both
Surowiec's and Angelo's knowledge existing at the time of arrest to amve at its ultimate
conclusion that Plaintiff's arrest was supported by probable cause.
As the Third Circuit has recognized, Angelo could arrest Plaintiff based on Surowiec's
instruction to detain Plaintiff as long as Surowiec possessed sufficient facts to support probable
cause. See Rogers, 120 F.3d at 453. Surowiec's police report from the events that took place on
August 28, 2012, states that he made the decision to detain Plaintiff after speaking with Detective
Cosgrove and considering ''the lengthy history between the two parties, the severity of the incident
(as it was first presented to [him]), the safety of the couple's children, as well as the safety of the
public in general" A-190. Detective Surowiec also reported that he was initially concerned that
this incident could be an attempted homicide. Id. The court acknowledges that Surowiec' s report
was created almost a week after the incident, but finds that the report was corroborated by the
statements that went out over KentCom and the reports of other officers involved in the incident.
It is clear that prior to the time when Surowiec gave Angelo the "go ahead" to detain
Plaintiff, KentCom reported the following facts: (1) suspect was Gordon Smith; (2) Gordon Smith
was on home probation; (3) Gordon Smith had a history of assault; (4) Gordon Smith was a
convicted domestic offender; and (4) there was an active Protection from Abuse Order dated
August 28, 2012. A-179. It is also clear that Angelo was listening to Kentcom prior to the arrest
and likely heard these facts as well .. Further, Tiffany Smith's mother called KentCom before
6:48pm and reported that she went to court with Tiffany that day to get the Protection from Abuse
Order, and, after the hearing, Gordon Smith told Tiffany that he was going to kill her and their
children. A-177. It is highly probable that, given Surowiec's statement in his report, these facts
were relayed to Suroweic by Cosgrove, or Office Saucier, or a combination of both of them. A190. The record is not clear as to whether Cosgrove told Surowiec that Tiffany identified her
husband as her attacker or whether Surowiec told Cosgrove that information. A-182; A-190. Such
a discrepancy between the factual accounts of the incident is, however, immaterial.
The operative facts for purposes of the probable cause determination are that Surowiec and
Angelo knew that there were allegations of previous domestic abuse incidents and that Tiffany
Smith had implicated Plaintiff in her attack. When a victim identifies her attacker, and the officers
have no reason to doubt her credibility at the time of arrest, such an identification is typically
enough to establish probable cause. See Wilson v. Russo, 212 F.3d 781, 790 (3d Cir. 2000)
(explaining that.a positive identification by a victim is usually sufficient to establish probi;ible cause
unless there is substantial evidence of the witness's own unreliability that is known by the arresting
officers); see also Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997) ("When a police officer
has received a reliable identification by a victim of his or her attacker, the police have probable
cause to arrest."), abrogated on other grounds by Curley v. Klem, 499 F.3d 199, 209 (3d Cir. 2007).
Here, not only did Tiffany Smith identify her attacker, but there is also evidence in the recordthe KentCom reports of Gordon Smith's criminal history and Tiffany Smit4' smother' s phone call
to the Delaware State Police-that corroborates the victim's identification ·of her attacker. Thus,
·based on the record presented to the court, a reasonable jury could not find that Plaintiffs arrest
violated the Fourth Amendment.
Plaintiff disputes the reliability of Tiffany Smith's identification, thus undermining
Angelo's probable cause to arrest Plaintiff. Plaintiff questions why Tiffany Smith did not think to
call 911, instead of her mother, to report the incident. (D.I. 60 at 12). Plaintiff also states that
Detective Nash made no notes of any significant injuries on Tiffany Smith's body in his report
from the scene. Id. If Tiffany Smith did not have serious injuries, Plaintiff reasons, Angelo and
Suroweic were wrong to rely on the severity of the assault as a basis for probable cause to arrest
Plaintiff. Id. Plaintiffs arguments do not present a genuine dispute of material fact.
The probable cause analysis is one based in common sense and a collation of the entire
See Sharrar, 128 F.3d 810, 818.
For good reason, officers relax the
skepticism applied to a confidential informant's information when the informant is an identified
victim. See Sharrar, 128 F.3d 810, 818 (3d Cir. 1997) (citing Easton v. City ofBoulder, 776 F.2d
1441, 1449 (10th Cir. 1985)). The court recognizes, like the Third Circuit, that "[t]he cloistered
nature of domestic violence is such that the testimony of the battered spouse and the injury itself
may be the only evidence available to establish probable cause." Id. at 818 (quoting Sharrar v.
Fe/sing, No. CIV.A. 94-1878 (JEI), 1996 WL 117162, at *3 (D.N.J. Mar. 7, 1996)). While it later
became clear that Tiffany Smith's allegations were fabricated, nothing in the record indicates that
the officers involved suspected that fact when the arrest took place. 4
Additionally, the fact that Detective Weaver would not have advised that Plaintiff be
detained is irrelevant. Detective Weaver never went to the scene of the alleged crime. A-138,
8:23-24. He went to straight to talk to Tiff8;ny Smith in the hospital. Id. Detective Weaver
testified that he had no idea when the order was· given to detain Plaintiff or who gave it-his "focus
was on Tiffany." A-140, 15:2-18. Detective Weaver gathered information at the hospital that
Surowiec, Cosgrove and Angelo were not privy to prior to their decision to detain Plaintiff.
Accordingly, Detective Weaver's thoughts on whether or not Plaintiff should have been detained
The court is aware of Officer Angelo's interaction with Detective Csapo. In Angelo's deposition, he
indicates that Detective Csapo contacted him and asked if Angelo could review Plaintiffs GPS points from August
24,2012, to see ifhe had been in the vicinity of Tiffany Smith's car. A-054, 15:12-23. Tiffany Smith reported to
police that Plaintiff had left a threatening note on her car. Id. Angelo informed Detective Csapo that, after
reviewing the GPS points for that day, it did not look like Plaintiff was in the vicinity of Tiffany Smith's car. Id.
These facts are immaterial, however. They do nothing to undermine Tiffany Smith's credibility in Angelo's eyes on
the night of August 28, 2012, and no reasonable jury could find otherwise. Angelo's only connection to the incident
on August 24th was to tell Detective Csapo that it did not look like Plaintiff was in the area of Ms. Smith's car. It is
too large a leap to conclude that, because Plaintiff was not near Tiffany Smith's car on August 24th, that Angelo had
reason to know that Tiffany Smith had made false allegations in the past, and therefore, likely staged the entire
assault scene on the August 28, 2012.
are immaterial to the probable cause analysis.
From Detective Nash's perspective-the first officer on the scene and the one to relay
information to Saucier, Suroweic, and Cosgrove-there was a disoriented women found on the
side of the road, stripped of her clothes, with the words "bitch" and "die" etched on her body.
Emergency medical services at the scene felt that her injuries were sufficient to warrant a trip to
the hospital. This woman identified her husband as her attacker to a civilian who solicited that
response at the behest of the police dispatcher. The existence of probable cause to arrest is evident
from those facts alone. There were, however, two additional facts that lent credence to 'her story:
(1) she had an active Protection from Abuse Order against Plaintiff; and (2) her mother called
Troop 3 and reported that Plaintiff had threated Tiffany Smith's life and the lives of their children.
Analysis of the totality of the circumstances reveals that there was probable cause to arrest
Plaintiff. A reasonable jliry could not find differently.
Lastly, Plaintiff's argue that, even if the facts known to the police officers at the time of
arrest may have be.en sufficient to establish probable cause, Angelo should have checked Plaintiff's
GPS points to exonerate him. There is no _constitutional requirement, however, that police officers
continue to investigate claims of innocence once probable cause is established. See Lincoln v.
Hanshaw, 375 F. App'x 185, 190 (3d Cir. 2010) ("The officers had no further constitutional duty
to continue their investigation in an attempt to unearth potentially exculpatory evidence
undermining the probable cause determination."). There is a dispute over how easy Plaintiffs
GPS points were to obtain, but that dispute is immaterial because probable cause existed at the
time of arrest.
Even when a state actor is alleged to have violated a federal right, that actor may be entitled
to qualified immunity from suit. See Bure/la v. City ofPhiladelphia, 501 F.3d 134, 139 (3d Cir.
2007). To determine whether a defendant is entitled to qualified immunity, "a court must first
determine if, assuming the facts alleged in the complaint are true, defendant's conduct violated a
constitutional or statutory right and, if so, whether the right allegedly violated was 'clearly
established' at the time of the violation." Id. Ifthe right was clearly established at the time of the
violation, qualified immunity cannot shield the defendant from liability. Id. at 140.
Here, the court determined that Angelo's conduct did not violate a constitutional right,
namely, the right to be free from unreasonable search and seizure guaranteed by the Fourth
Amendment. Accordingly, the court does not need to proceed to the second prong of the qualified
immunity analysis. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that district court
judges are permitted to exercise their discretion-in light of the circumstances of each case-in
deciding which prong of qualified immunity to address first).
A claim of excessive force that arises in the context of a seizure incident to an
investigative stop or an arrest is "most properly characterized as one invoking the protections of
the Fourth Amendment, which guarantees citizens the right 'to be secure in their persons ...
against unreasonable ... seizures' of the person." Graham v. Connor, 490 U.S. 386, 394 (U.S.
1989). The relevant question for the court is whether the officer's use of force was objectively
reasonable given the circumstances surrounding the seizure. Id. at 397. "The right to make an
arrest or investigatory stop necessarily carries with it the right to use some degree of physical
coercion or threat thereof to effect it." Id. at 396. The test ofreasonableness under the Fourth
Amendment requires careful analysis of the circumstances of the particular case, "including the
severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest of attempting to evade arrest by
Here, the court finds no need to analyze the Defendants' conduct leading up to the arrest.
Plaintiff conceded that there was no excessive force claim against Defendants Danberg, Coupe,
Fraley, or Weaver. According to Plaintiff's briefing, it appears he is pursuing an excessive force
claim against Defendant Angelo for detaining Plaintiff for "more than an hour" without probable
cause. See (D.I. 60 at 17) ("Although Defendant Angelo was not the individual who held
Plaintiff at gunpoint, it is fair to attribute the actions of Defendant Angelo's fellow officers to
him .... "). Additionally, Plaintiff alleges that Probation Officer Wheeler "act[ ed] without
probable cause, touch[ ed] Mr. Smith, fore[ ed] him to move from his location, and point[ ed] a
loaded gun at him;" which "all constitute acts of excessive force given the circumstances." Id.
Toproperlyplead a§ 1983 action for excessive force in violation of the Fourth
Amendment, "a plaintiff must plead that each Government-official defendant, through the
official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662,
676, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009) (emphasis added). Accordingly, the
concept of vicarious liability is inapplicable to § 1983 actions. Id.
Plaintiff's claim against Angelo fails because it is undisputed that Angelo did not remove
Plaintiff from his vehicle and point a loaded gun at him. Plaintiff was tracked to the parking lot
of the Texas Roadhouse in Camden, Delaware, where he was found sitting in his car. A-063,
52:8-23. Angelo approached Plaintiff's car on the passenger side. A-055, 20:23-24. It was
Probation Officer Wheeler-an individual who is not a defendant in this action-that removed
Plaintiff from his vehicle and held him at gunpoint. A-029, 71 :16-73:7; A063-A064, 53:1854:3; (D.I. 60 at 16). It seems that Plaintiff is trying to assert a claim of vicarious liability
against Angelo for the actions of his fellow probation officers. Such a claim must fail as a matter
To support his claim for excessive force, Plaintiff also alleges that Defendants, without
probable cause, arrested him, moved him from his location, and detained him for over an hour.
(D.I. 60 at 16). Such allegations do not support a claim of excessive force. The court need not
belabor the point and check off the factors for proving an excessive-force claim because
plaintiffs claim clearly falls short. The court already addressed the lawfulness of the arrest,
finding that probable cause existed and that Plaintiff's arrest did not violate the Fourth
Amendment. Transporting Plaintiff to Troop 3 and detaining him were not objectively
unreasonable acts because they were incident to an arrest supported by probable cause and,
according to Plaintiff, detainment only lasted for about two and a half hours. See Stewart v.
Abraham, 275 F.3d 220, 228 (3d Cir. 2001) ("[A] state may arrest and detain an individual
without a warrant ifit has probable cause and provides for review of the probable cause
determination by a neutral party within 48 hours of the arrest."). Plaintiff's claim for excessive
force, therefore, fails as a matter oflaw.
From Plaintiff's opposition brief, it appears that he is asserting a claim of gross negligence
against only Defendant Angelo. (D.I. 60 at 18). Plaintiff's Complaint alleges that Angelo "owed
a duty to act according to the standard of ordinary care of a correction officer or a police officer,
to wit, to conduct a proper investigation, the failure of which was the proximate cause of Plaintiffs
opposition brief asks the court to exercise supplemental
jurisdiction over the gross negligence claim against Angelo because "Angelo discharged his duties
as a probation officer in a manner that was a sharp departure from the standard of conduct for a
reasonable probation officer." (D.I. 60 at 19).
From Plaintiff's Complaint, it appears that he is asserting an ordinary negligence claim,
referencing "the standard of ordinary care of a correction officer or police officer." As Defendants
point out, the Torts Claims Act, 10 Del. C. § 4001, exempts state employees from civil liability
based on a theory of negligence if three criteria are satisfied:
The act or omission complained of (i) arose out of and in connection with official
duties involving the exercise of discretion; (ii) was performed in good faith and in
the belief that the public interest would be best served thereby; and (iii) was
performed without gross and wanton negligence.
Lee v. Johnson, No. 96C-03-291-WTQ, 1996 WL 944868, at *2 (Del. Super. Ct. June 4, 1996).
Plaintiff has the burden of alleging facts that negate the existence of the three criteria. Id. Plaintiff
has not set forth sufficient facts to meet that requirement. The court thus proceeds to the analysis
of gross negligence.
In order to hold Angelo liable for gross negligence, Plaintiff would need to show first that
Angelo's "negligent act or omission breached a duty of care owed to the plaintiff in a way that
proximately caused the plaintiff's injuries." Drummond v. Delaware Transit Corp., 365 F. Supp.
2d 581, 585 (D. Del. 2005).
Plaintiff would also need to show that Angelo's behavior
demonstrated "a higher level of negligence representing 'an extreme departure from the ordinary
standard of care."'
Browne v. Robb, 583 A.2d 949, 953 (Del. 1990) (quoting W. Prosser,
Handbook of the Law ofTorts 150 (2d. ed. 1955)). The court could not find any case in Delaware
where a plaintiff brought a state law claim against a police officer for failure to properly investigate
the alleged crime. Plaintiff cited no case law to support his claim.
Plaintiff could have alleged a due process claim for failure to investigate. As the court
previously mentioned, however, the Constitution does not require officers to continue to
investigate potentially exculpatory evidence once probable cause is established. See Eckman v.
Lancaster City, 742 F. Supp. 2d 638, 653 (E.D. Pa. 2010), affd, 515 F. App'x 93 (3d Cir. 2013),
and affd, 529 F. App'x 185 (3d Cir. 2013). "To bring a successful due process claim for failure
to investigate, a plaintiff must show that a police officer acted intentionally or recklessly, in a
manner that shocks the conscience, in failing to investigate." Id. Plaintiffis not, however, alleging
a due process violation here. Plaintiff is alleging gross negligence under Delaware Law. (D.I. 2
Because Delaware case law does not impose a duty on police officers to investigate
potentially exculpatory evidence after probable cause is established, Pla_intiff fails to state a viable
claim under Delaware law. Accordingly, Plaintiffs gross negligence claim fails as a matter of
For the aforementioned reasons, the court will grant the Defendants' Motion for Summary
'LS , 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?