Lucas v. Shively et al
Filing
69
MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 7/7/14. (mka)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
RYAN STILLMAN LUCAS,
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Plaintiff,
v.
GARY L. SHIVELY, et al.,
Defendants.
Civil Action No.: 7:13cv00055
By: Hon. Michael F. Urbanski
United States District Judge
MEMORANDUM OPINION
This matter is before the court on the summary judgment motions of defendants Patrick
Lamb (“Lamb”) and Gary L. Shively (“Shively”). Dkt. Nos. 37 & 38, respectively. Both defendants
assert that qualified immunity bars this civil rights action. The court heard oral argument on these
motions on April 25, 2014. Dkt. No. 60. At that time, the court requested supplemental briefing on
fingerprint analysis, specifically the verification step of the “ACE-V” (analysis, comparison,
evaluation, and verification) process. The parties have filed their briefs on that issue and the matter
is now ripe for decision.1 For the reasons stated herein, the court will GRANT the defendants’
motions.
I.
Plaintiff Ryan Stillman Lucas (“Lucas”) brings this action pursuant to 42 U.S.C. § 1983,
alleging that the defendants violated his Federal Constitutional rights by arresting him without
probable cause. Specifically, he asserts claims for false arrest, false imprisonment, and malicious
1
Plaintiff filed additional evidence on May 22, 2014. Dkt. No. 65. Lamb moved to strike this
evidence the next day. Dkt. No. 66. The court will DENY the motion to strike and consider all of
the evidence that has been submitted by the parties.
prosecution under the Fourth and Fourteenth Amendments. He also asserts pendent state law
claims for false arrest and false imprisonment. All of Lucas’ claims arise from his arrest on April 24,
2012, on five warrants – four felonies and one misdemeanor – related to two burglaries. The facts
surrounding the burglaries and the ensuing investigation by the defendants are as follows:2
A. The Burglaries
In December of 2009, multiple items, including a 50 inch television, power tools, and a
shotgun, were stolen from a vacation home located near Smith Mountain Lake in Franklin County,
in southwestern Virginia. Items were taken both from the home itself and from a detached garage.
Deputies from the Franklin County Sheriff’s Office initially responded to the burglary, but Shively, a
Sheriff’s Office’s investigator, was contacted because a firearm was among the stolen items. At the
scene, Shively was able to lift three latent fingerprints from the medicine cabinet in the master
bedroom, collect footwear impressions, and photograph pry marks from tools on several doors. See
generally, Franklin County Sheriff’s Office Report, Dkt. No. 44-1; Shively Dep., at 20:20-22:21.
Believing the fingerprints to be of sufficient quality, Shively submitted them to the Virginia
Department of Forensic Science Western Laboratory. Shively Dep., at 25:25-26:9. Shively did not
receive any information back and the case went dormant at that time. Id. at 26:25.
The second burglary occurred on March 22, 2012, in Fredericksburg, a city in northern
Virginia.3 The homeowner and his daughter walked in on the burglary in progress. An officer from
the Fredericksburg Police Department initially responded and received a description of the
It is worth noting that this case is somewhat unique in that a significant number of key
conversations were recorded and subsequently transcribed. Thus, exactly what was said, to whom,
and when, is frequently undisputed.
2
3
According to Google Maps, it is approximately a three and three quarters hour drive from Franklin
County to Fredericksburg. See Driving Directions from Franklin County to Fredericksburg, VA,
Google Maps, http://maps.google.com (follow “Get Directions” hyperlink; then search “A” for
“Franklin County, VA” and search “B” for “Fredericksburg, VA”; then follow “Get Directions”
hyperlink).
2
perpetrator: a white male; mid-twenties; 5 foot 6 to 5 foot 8; weighing 140-165 pounds; tattoos on
both arms; and short brown wavy hair. The only items stolen were a piggy bank and small sum of
money; several items of value were apparently passed over. The piggy bank was recovered outside
the home. Approximately forty-five minutes after the initial responding officer arrived, Lamb, a
detective and fingerprint examiner with the Fredericksburg Police Department, arrived at the scene.
Lamb was able to lift latent fingerprints from the piggy bank and a gel lift of a footwear impression
from the yard adjacent to the burglarized home.4 Lamb also received a description of the suspect
from the homeowner similar to what was conveyed to the initial responding officer: a shirtless white
male; possibly early to mid-twenties to early-thirties in age; tattoos on both arms with the forearm
tattoos being particularly noticeable; no tattoos on his back, which was pale – not sun tanned; no
“farmer’s tan” line on the back of the neck; and shorter brown hair that may have been “wavy” that
looked to be “neatly cut.” See generally, Fredericksburg Police Dep’t Report, Dkt. No. 40-3., at 2-4.
B. The Investigation
The Fredericksburg police began canvassing the area for suspects. The burglarized home
was near a wooded area containing a number of homeless camps. One officer contacted a homeless
individual known to the police. That individual reported that there was a new person in the
homeless community that matched the physical description of the suspect. This newcomer,
according to the tipster, possibly had the first name “Ryan.”5 See generally, Lamb Dep., at 106:1107:9
4
Lamb also recovered a partial print from a coin tray, but did not consider it to be of sufficient
quality to allow for further investigation. Lamb Dep., at 103:24-104:3.
5
After providing this information, the tipster was transported to Snowden at Fredericksburg.
Snowden bills itself as a “comprehensive behavioral health services” hospital, providing both mental
health and substance abuse treatment. Neuroscience Center of Excellence, Mary Washington
Healthcare, (June 30, 2014), http://www.marywashingtonhealthcare.com/mwhc-neurosciencecenter/behavioral-health. When asked at his deposition whether the fact that this individual needed
3
That evening, Lamb ran one of the latent fingerprints (L2) from the piggy bank through a
database of known prints. This database is made up of fingerprint cards, known as “ten print
cards,” of known individuals. Lamb used the Automated Fingerprint Identification System
(“AFIS”) to search this database and generate a “candidate list” of potential matches. Lamb then
compared the L2 latent to the prints of seven known individuals. Based on his comparisons, Lamb
excluded all of them as potential suspects in the Fredericksburg burglary. See Fredericksburg Police
Dep’t Report, Dkt. No. 40-3, at 5.
On March 26, 2012, Lamb ran another latent print (L6) through the known prints database.
Again, Lamb excluded any potential suspects from the AFIS generated candidate list. Lamb Dep., at
112:12-113:9. Next, Lamb ran L6 through a database of unknown latent prints. After his latent-tolatent comparison of L6 to the AFIS generated candidate list, Lamb believed that he had a “hit” – a
latent with sufficient similarity to L6 to warrant further investigation.6 This hit was the latent
fingerprint submitted by Shively in 2009 relating to the Franklin County burglary. Id. at 115:24116:7; id. at 116:23-117:4.
Shively’s Franklin County latent had been entered into the database of unknown latent prints
by Lyle Shaver at the Virginia Department of Forensic Science Western Laboratory. Just after 9:00
to be transported to Snowden affected the reliability of the information he provided, Lamb testified
that “whenever he receives information from a homeless subject, he takes it with a matter of
‘professional skepticism.’” Lamp Dep., 109:13-20. However, he stated that he found the nature of
the physical description provided, and the fact that this individual was willing to give information
about another member of the homeless community, “extremely interesting” and that, at that time,
he found the information that had been provided to be fairly reliable. Id. at 109:21-110:11.
6
Lamb’s report says that L6 “was individualized to the same contributor from our crime scene and
the unknown latent impression of Franklin County.” Lamb Dep., at 117:5-8. However, at his
deposition Lamb stated that his use of the word “individualized” was inaccurate, and that he merely
had identified enough similarity at that time to warrant further investigation. Individualization,
according to Lamb, requires actually having both latent prints to compare. The copy of the Franklin
County latent pulled by AFIS from the database was not of sufficient quality to use for
individualization. Id. at 117:11-16.
4
a.m. on March 28, 2012, Lamb spoke with Shaver. Lamb informed Shaver that he had gotten a
“hit” on a latent print Shaver had entered into the database. Tr. of Recorded Conversations, Dkt.
No. 44-2, at 2:19-20. Shaver asked if the latent print Lamb had recovered was in the system; Lamb
confirmed that it was and gave Shaver the key number. Lamb and Shaver then discussed how they
would proceed:
Shaver: Oh okay. Uh, what I will try to do is I will try to pull these up.
Lamb: Okay.
Shaver: And make sure everything looks good from my standpoint and then I will,
uh, - - contact the investigating agency from, from out here whoever that might’ve
been and let them know that there’s a link between these two cases. . . .
Id. at 4:21-5:4. After Shaver confirmed that Lamb was the lead investigator for the Fredericksburg
burglary and acquired Lamb’s contact information, the conversation continued:
Shaver: Okay, I will pass this information along. I’ll pull it up and see what I got and
then, uh, hopefully I’ll let, so that way we’ll know if something comes up. One of us
gets a legitimate suspect and they may have one.
Lamb: Yeah, that’s what I’m hoping we can put a name on this joker.
Shaver: All right.
Lamb: Now, my quality of my print, it doesn’t look so good on Avis7 screen, I’ll be
happy to, uh, you know, email you a digital image if that would be easier to work
with. That’s what I do is use a digital scan to match to your print, your print’s a lot
better.
Shaver: Okay. I probably didn’t develop it so I can’t take any credit for that.
[laughter]
Shaver: Anyway, let me, let me see, uh, who, uh, who we got here and what all’s
going on and then, uh.
Lamb: Okay.
7
This should almost certainly be “AFIS.”
5
Shaver: And then I will either get back with you or I’ll let the investigator get back
with you.
Id. at 5:20-6:18. At this point, the two men exchanged goodbyes and the call ended.
The next day, March 29, 2012, Shaver called Lamb at 1:00 p.m. Shaver first confirmed that
the victims of the two burglaries were not the same. Shaver then told Lamb that the only
information he had on the prior burglary was that “two suspects entered the residence and stole
numerous items.” Id. at 22:18-20. Shaver then stated:
Shaver: Yeah and, um, let me be, what I’ll do is I’ll just give you the investigator’s
name and phone number.
Lamb: Okay.
Shaver: And I want you to contact them.
Lamb: Yes, sir.
Id. at 23:2-7. Shaver then proceeded to provide Lamb with the contact information for Shively.
The two then briefly discussed their optimism about finding a suspect and then ended their
conversation.
Lamb called Shively that same day. He left a message stating that he “got a print off a crime
scene that matched to a print from [Shively’s] crime scene” and that he had a “very good suspect
description” from eyewitnesses that he wanted to share with Shively. Id. at 8:6-11. Shively called
Lamb back just before 2:45 p.m. Shively informed Lamb about the nature of the Franklin County
burglary: the type of home, its location, when the burglary occurred, what was stolen, and what sort
of evidence he had collected from the scene. Lamb then provided Shively with the same sort of
information about the Fredericksburg burglary. He also provided Shively with the physical
description he had been given by the Fredericksburg homeowner. He also mentioned the name
“Ryan”:
Lamb: “[T]he homeless community, different informants are saying there is a guy,
younger guy who’s newer to the area that matches. Um, and they, uh, the name
6
Ryan has come up but again nobody, there’s not anything you can put any stock in
on that.”
Id. at 14:5-10. Shively took note of the suspect’s distinctive tattoos:
Shively: And you say tattoos on both arms?
Lamb: Yes, sir, very, a lot of tattoos. There was like a sleeve on both arms.
Shively: Okay.
Lamb: And yeah, that was the most distinctive . . . .
Id. at 14:17-23. Shively then stated that he would make some inquiries at a nearby trailer park about
an individual named “Ryan” with sleeve tattoos living there at the time of the Franklin County
burglary. See id. at 15:20-16:20. Lamb then discussed the nature of what he described as
Fredericksburg’s “homeless problem” and both men expressed concern that, if the suspect was
indeed homeless, that he would be “moving on” as a result of the Fredericksburg burglary. The
men then exchanged contact information and Shively told Lamb to call him back the next week if he
(Lamb) didn’t hear from him (Shively) the next day. Id. at 20:3.
Armed with the suspect’s physical description – which Shively described as “run-of-themill,” with the exception of the tattoos, Shively Dep., at 39:23-40:8 – and the possible name “Ryan,”
Shively proceeded to visit several businesses near the scene of the Franklin County burglary.
According to his deposition testimony, he did not visit the trailer park he had mentioned to Lamb,
id. at 42:3-7, but visited a convenience store, a lawnmower repair shop, and a post office, where he
described the suspect and passed out business cards. Id. at 40:21-41:2.
On April 3, 2012, at 2:50 p.m., Shively called Lamb and left a message about visiting the
stores near the scene of the Franklin County burglary. See Tr. of Recorded Conversations, Dkt. No.
40-6, at 27:8-25. Then, a few days after Shively visited the stores, he received a phone call from one
of the storeowners. The storeowner told Shively that, while Shively was in the store, another person
7
overheard Shively’s description of the suspect. The individual did not want to come forward,8 and
asked the storeowner to contact Shively. Shively Dep., at 44:8-23. The storeowner provided Shively
with the surname “Lucas”:
Shively: [The storeowner] called me and told me the person that I was looking for
was -- his last name was Lucas. His -- I think his father’s name was Andrew or
something like that, and generally where he -- where they had lived at one time, you
know, pointed out that.
And from there I just figured out Ryan Lucas -- the name Ryan Lucas and just got
the rest of the information through [the Virginia Department of Motor Vehicles
(“DMV”)] computer and so forth.
Id. at 44:24-45:7.9 Shively elaborated that he first checked the Sheriff’s Office records and found
that they did have a file on a Ryan Lucas. Lucas had been arrested in 1997 for failure to appear. Id.
at 48:7-14, 49:8. The file contained an address, which Shively believed to be close to the location of
the Franklin County burglary. Id. at 48:4-9. Shively went to that address, but did not locate Lucas
there and did not recall speaking to anyone at that address. Id. at 51:10-18.
Shively then turned to the DMV records on Lucas. These records contained a picture of
Lucas, which was taken on January 22, 2010. DMV Records, Dkt. No. 40-11, at 2; Shively Dep., at
58:20-22. The DMV records also indicated that Lucas was five foot ten10 and weighed 210 pounds.
DMV Records, Dkt. No. 40-11, at 2. Shively testified he did not view the weight differential
between the physical description provided by the Fredericksburg victim and the DMV record as
8
Shively did not ask the storeowner for this individual’s name or otherwise try to contact or locate
the tipster. Shively Dep., at 45:16-46:10.
9
Earlier in his deposition testimony Shively seemed to indicate that the tipster did not know a
surname, see Shively Dep., at 42:12-17, but this appears to be a misstatement. Without a surname it
would not seem possible for Shively to arrive at the name “Ryan Lucas.”
Lucas testified at his deposition that he would guess his height at five foot eight. Lucas Dep., at
16:1-3.
10
8
significant. See Shively Dep., at 53:23-54:1 (Q: “Did you remark on that in any way or have any
thoughts about that when you noted the 210-pound weight? A: No.”).
Shively noted that the DMV records had a different address for Lucas. Id. at 51:19-25. As
with the other address, Shively went there, but did not locate Lucas or speak to anyone. Id. at 51:2352:10. He was, however, able to speak with a neighbor, who told him that Lucas – or someone
matching his description – lived at the home and worked in Roanoke City.11 See id. at 63:6-64:5.
Shively also observed two vehicles at this address: one which “came and went” and was not
registered to Lucas, and one which “stayed in the same place” and was registered to Lucas. See id. at
52:14-53:1.
After taking these steps in his investigation, see id. at 58:23-59:2, Shively called Lamb on
April 11, 2012, to let him know what he found. He first reminded Lamb of the stores he had visited
on April 3:
Shively: You know I told you I was going to go back over and hit a couple of the
stores and I did that and, uh, just yesterday I got a call from a person and said [sic]
that your guy has, Ryan, that his father’s name is Andre Lucas.
Lamb: Andre, okay.
Shively: And, um, and so I actually looked him up and he was in our system here.
Lamb: Oh okay.
Shively: And, um, he had been arrested on, he’s never had any kind of serious
charges but he was arrested on a -- -- for failing to appear and the deputy
fingerprinted him, of course they never got [sic] but we had -- --. It was never put in
the system but we had fingerprints here.
Lamb: Oh okay.
Shively: Yeah and so, um, and, and you know according to our, when the
information that was put in when he was arrested on this -- -- a couple of years ago,
you know he did have tattoos on his arms and, um, I’ll give you his, um, his
11
Roanoke is located just north of Franklin County.
9
information where you can get a DMV picture and I’m also going to, I made a photo
copy of my fingerprints.
Lamb: Oh okay.
Shively: I’m going to submit mine to the lab and I’m going to send you a photo copy.
This is a really good photo copy.
Lamb: Outstanding, I can give you a fax number if you, will it fax?
Shively: I was going to mail them to you but I can try to fax it also.
Lamb: Yes, sir, the, um, well the FBI faxes me some sometimes and, uh, it, uh, -- -for that fax number now. You know sometimes it comes through real well and we
can give it a try and you can drop them in the mail if you want too [sic] as well.
Tr. of Recorded Conversations, Dkt. No. 40-6, at 28:19-30:9. Shively then provided Lamb with
Lucas’ information and Lamb provided Shively with a fax number.12 Shively both faxed and mailed
a copy of Lucas’ prints to Lamb. Shively Dep., at 69:6-8. Shively sent the original copy of Lucas’
prints to the Virginia Department of Forensic Science Western Laboratory to compare with the
latent prints from the Franklin County burglary. 13 When he received Shively’s fax, Lamb compared
those prints to the prints he had lifted from the Fredericksburg crime scene, in particular the piggy
12
Lamb also confirmed that the suspect’s first name was “Ryan”:
Lamb: His name is Ryan?
Shively: It is Ryan.
Lamb: So that homeless guy was right.
Shively: Yeah, yeah.
Lamb: Well I’ll be.
Tr. of Recorded Conversations, Dkt. No. 40-6, at 31:1-6.
13
Shively testified that he may have mailed Lamb the original and mailed the other copy to the
Virginia Department of Forensic Science Western Laboratory. Shively Dep., at 69:9-16. This
uncertainty is immaterial to the court’s decision.
10
bank that had been recovered. He testified that he “individualized” Lucas’ thumb print to the latent
left thumb print from the piggy bank. Lamb Dep., 148:3-16.
On April 12, 2012, at 11:50 a.m., Lamb called Shively to inform him of the fingerprint
match. He stated that the thumbprint he lifted off of the piggy bank matched the left thumb of
Lucas and that he would be getting warrants for Lucas. Tr. of Recorded Conversations, Dkt. No.
44-2, at 48:4-11. In response to this information, Shively stated that he would charge Lucas in
connection with the Franklin County burglary that day. Id. at 48:16-20. He also stated that he
would start making attempts to find Lucas. Id. at 49:1-3. Lamb responded:
Lamb: Okay very good and he is actually a suspect in a B and E we had over the
weekend.
Shively: Really.
Lamb: And when I get your good prints that you mailed there’s a print that was kind
of faint that I think was his left middle finger on the known card off our B and E
this weekend so he’s likely still around here.
Shively: Very good.
Lamb: So when I get that mailed set what I’ll do is try to match that print up so he
might be getting warrants on him for something else too.
Shively: Okay, well this, you’ll like the card, those are beautifully inked prints.
Lamb: Very good, yeah because it’s a fax machine but the thumb was really good
that, that left thumb was really good on your fax transmission.
Shively: Well good. I’ll get warrants today and I will start looking for him.
Lamb: Okay and if we get him, I’ll [sic] you know first thing.
Id. at 49:4-50:4. The two men then confirmed that they would each take out warrants and
each begin looking for Lucas and ended their conversation.
Five warrants were issued for Lucas on April 12, 2012: from Fredericksburg, one for
burglary (Va. Code § 18.2-91) and one for petit larceny (Va. Code § 18.2-96), and from
Franklin County, one for burglary and two for grand larceny (Va. Code § 18.2-95). The petit
11
larceny was a misdemeanor warrant; the other four were felony warrants. See generally,
Arrest Warrants, Dkt. Nos. 40-13 & 40-14.
C. Search, Arrest, and Release
After the warrants were issued, Shively visited the Hardy Road address several times to try
and find Lucas; he was unsuccessful and therefore turned the manhunt over to the United States
Marshals Service. Shively Dep., at 62:6-12. The Marshals Service arrested Lucas at his place of
employment on April 24, 2012, at approximately 10:30 a.m. Lucas Dep., at 33:17-20. Shively then
went to Roanoke and brought Lucas back to Franklin County. During the drive, Lucas denied
committing either burglary. He also denied having ever been to Fredericksburg, although he said
that he had met a girl online that he believed lived in the Fredericksburg area. Additionally, he
provided an alibi for the Fredericksburg burglary, stating that he was working that day. See
generally, Shively Dep., at 82:17-84:23; Lucas Dep., at 45:3-47:7. Lucas provided Shively with the
contact information for his employer and Shively stated that, while he would not be investigating the
alibi for the Fredericksburg burglary, he would pass that information along to Lamb. Shively Dep.,
at 85:5-13.
Shively called Lamb at 1:50 p.m. and left a message providing him with this information,
including Lucas’ claimed alibi. See generally, Tr. of Recorded Conversations, Dkt. No. 44-2, at
64:18-65:21; see also Lamb Dep., at 177:21-178:5. The two men actually spoke at 2:22 p.m. Lamb
asked for pictures of Lucas’ tattoos. Tr. of Recorded Conversations, Dkt. No. 44-2, at 69:21-22. At
this time, both men appeared to have been confident of Lucas’ guilt and at one point employed
rather colorful language to express their belief that they would soon acquire additional inculpatory
evidence against him. See, e.g., id. at 74:9-10 (Lamb: “[T]hat’ll slam him you know when I show [his
picture] to the witnesses”); id. at 74:13-15 (Shively: “We’ll get him, we’ll get his little d**k knocked in
the sand here.”).
12
The next morning, April 25, 2012, at 9:13 a.m., Lamb called Lucas’ employer. He was
informed that Lucas was working the day of the Fredericksburg burglary until 3:02 p.m. Id. at
84:25-85:1. Lamb asked for a fax copy of Lucas’ timesheet. Id. at 84:15-18 (“And so you know
that’s why I’m calling because if he didn’t do it I certainly want to clear him. Is there, could you fax
me a copy of that?”). Because the Fredericksburg burglary occurred at 5:08 p.m., Lamb believed it
would have been difficult without a helicopter for Lucas to have gotten to Fredericksburg in time to
commit the crime. Lamb Dep., at 178:6-22-179:7. At 9:30 a.m., Shively emailed pictures of Lucas to
Lamb. He noted Lucas did not have “exactly the full sleeve tattoos [he] was expecting to see.”
Shively Dep., Pl.’s Ex. No. 11, at 2. Lamb replied by email at 9:33 a.m. He asked if Lucas had
“anything further to say about either arrest” and informed Shively that Lucas had not been working
at the time of the burglary but that “it would have been a fast trip to get from Salem14 at 3 PM to
here by 5:30 PM…” Id. at 1. Shively responded that Lucas wanted to know if Lamb had checked
his work schedule. Shively also asked if “the tattoos or lack of same [sic] bother you as much as it
does me?” Id. At 9:49 a.m., Lamb replied as follows:
It very much does. My witness said he had several tattoos.
I did check his work schedule and he was off during the burglary but he worked that
morning and the next morning. The lack of tattoos does worry me. If it wasn’t for
the thumb print I would think we had the wrong guy! That print did not get into my
crime scene by accident!
Thanks for all of your help with this case. It does seem odd that he isn’t more upset
at being arrested if he is indeed innocent.
Patrick.
Id. Lamb also spoke with Lucas’ mother. Lamb Dep., at 183:14-15. Based on the information he
received on April 24 and 25, Lamb concluded that Lucas was not in fact the culprit of the
Fredericksburg burglary. He testified that the two biggest factors in his conclusion were (1) the
14
The cities of Salem and Roanoke border each other.
13
timesheet provided by Lucas’ employer and (2) his conversation with Lucas’ mother, who indicated
that Lucas lived at her home in the basement.15 Id. at 188:19-23; see also id. at 176:23 (Because
Lamb believed the culprit of the Fredericksburg burglary to be a homeless person, the fact that
Lucas was living in his mother’s basement gave Lamb pause); Fredericksburg Police Dep’t Report,
Dkt. No. 40-3., at 13 (discussing these factors). Lamb believed Lucas’ mother to be sincere. Lamb
Dep., at 189:1-8.
Consequently, Lamb met with his lieutenant. Id. at 179:21-180:3. On April 26, Lamb met
with the Fredericksburg Commonwealth’s Attorney’s Office and stated his belief that the
Fredericksburg charges should be dropped. See id. at 180:13-20.16 Those charges were dismissed by
the court on April 27. See Nolle Prosequi Order, Dkt. No. 40-15. Lucas was released from jail that
same day. Lucas Dep., 22:7-11.
On April 30, 2012, the Virginia Department of Forensic Science Western Laboratory issued
a Certificate of Analysis concluding that Lucas was not the source of the Franklin County latent
print. Shively Dep., at 114:19-115:24. That same day the Franklin County Commonwealth’s
Attorney requested that the Franklin County charges be dismissed. Letter Requesting Cases be
“Nolle Prosed,” Dkt. No. 40-16, at 2.
Lamb continued to believe that he had correctly identified Lucas’ left thumb as matching the
latent print off of the piggy bank recovered at the scene of the Fredericksburg burglary until the
instant litigation began. Lamb has since re-compared the prints and now believes that his initial
15
Lamb also learned that Lucas had a size twelve shoe. Lamb Dep., at 184:4-11. That did not
match the footprint Lamb had retrieved from the yard next to the scene of the Fredericksburg
burglary, but because he did not know for certain who made the shoeprint, Lamb did not consider
that fact particularly relevant. Id. at 187:22-188:3.
16
Lamb testified that he did not meet with a member of the Commonwealth’s Attorney’s Office on
April 25 because the attorneys “were all in court” that morning. Lamb Dep., at 180:3-11.
14
match was incorrect and that Lucas’ left thumb was not the source of the latent print from the
Fredericksburg burglary. Lamb Dep. at 41:2-21.
No party now disputes the fact that Lucas did not commit either the Franklin County or the
Fredericksburg burglary or the fact that Lamb incorrectly matched Lucas’ prints to the
Fredericksburg latent prints.
II.
Pursuant to Federal Rule of Civil Procedure 56(a), the court must “grant summary judgment
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); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this
determination, the court should consider “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with . . . [any] affidavits” filed by the parties. Celotex, 477 U.S. at 322.
Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment. Factual disputes
that are irrelevant or unnecessary will not be counted.” Id. (citation omitted). The moving party
bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex,
477 U.S. at 323. If that burden has been met, the non-moving party must then come forward and
establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
In determining whether a genuine issue of material fact exists, the court views the facts and
draws all reasonable inferences in the light most favorable to the non-moving party. Glynn, 710
F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Indeed, “[i]t is an ‘axiom
that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed,
15
and all justifiable inferences are to be drawn in his favor.’” McAirlaids, Inc. v. Kimberly-Clark
Corp., No. 13-2044, 2014 WL 2871492, at *1 (4th Cir. June 25, 2014) (internal alteration omitted)
(citing Tolan v. Cotton, 134 S Ct. 1861, 1863 (2014) (per curiam)). Moreover, “[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge . . . .” Anderson, 477 U.S. at 255. However, the nonmoving party “must set forth specific facts that go beyond the ‘mere existence of a scintilla of
evidence.’” Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252). Instead, the non-moving
party must show that “there is sufficient evidence favoring the non[-]moving party for a jury to
return a verdict for that party.” Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631,
635 (4th Cir. 2005) (quoting Anderson, 477 U.S. at 249).
III.
Both Lamb and Shively assert that they are entitled to summary judgment because they are
protected by qualified immunity. Qualified immunity “protects government officials from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Smith v. Gilchrist, 749 F.3d
302, 307 (4th Cir. 2014) (citing Stanton v. Sims, 134 S.Ct. 3, 4 (2013) (per curiam)). Significantly,
qualified immunity entails a two prong test: (1) the allegations underlying the claim, if true, must
substantiate a violation of a federal statutory or constitutional right, and (2) such a violation must be
of a clearly established right of which a reasonable person would have known.” Id. at 308 (quoting
Ridpath v. Board of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006)); see also Durham
v. Horner, 690 F.3d 183, 188 (4th Cir. 2012) (citing Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (finding qualified immunity involves a two-step inquiry, asking first whether a constitutional
violation occurred and second whether the right violated was clearly established).
16
It is within the court’s discretion to decide which prong to address first. Pearson v.
Callahan, 555 U.S. 223, 236 (2009); Durham, 690 F.3d at 188 n.6. Here, the court will address prong
one first. Plainly, “[i]f an officer did not violate any right, he is hardly in need of any immunity and
the analysis ends right then and there.” Henry, 652 F.3d at 531 (internal alterations omitted)
(quoting Abney v. Coe, 493 F.3d 412, 415 (4th Cir. 2007). Here, Lucas cannot prevail on any of his
federal claims if the defendants had probable cause for Lucas’ arrest. See White v. Maryland Transp.
Auth., 151 F. Supp. 2d 651, 655 (D. Md. 2001) (“On the federal claims for false arrest, false
imprisonment, and malicious prosecution, the dispositive question is probable cause.”), quoted in
Gregg v. Richmond, No. CIV.A. DKC 2001-1212, 2004 WL 257080, at *2 (D. Md. Feb. 11, 2004);
Pleasants v. Town of Louisa, 847 F. Supp. 2d 864, 879 (W.D. Va. 2012) (quoting Street v. Surdyka,
492 F.2d 368, 372-73 (4th Cir. 1974) (“‘[T]here is no cause of action for ‘false arrest’ under section
1983 unless the arresting officer lacked probable cause.’”); Burrell v. Virginia, 395 F.3d 508, 514 (4th
Cir. 2005) (citing Brooks v. City of Winston-Salem, N.C., 85 F.3d 178, 183-84 (4th Cir. 1996))
(holding that a section 1983 malicious prosecution claim requires, inter alia, seizure pursuant to legal
process not supported by probable cause). The same is true of his pendent state law tort claims.
See Savage v. Cnty. of Stafford, Va., 754 F. Supp. 2d 809, 816 (E.D. Va. 2010) (citing Veney v.
Ojeda, 321 F.Supp.2d 733, 747 (E.D. Va. 2004)) (“Under Virginia law, where a law enforcement
officer acts in good faith and with probable cause, he cannot be held liable for false arrest.”), aff'd
sub nom. Savage v. Sturdivant, 488 F. App'x 766 (4th Cir. 2012); Lewis v. Kei, 281 Va. 715, 724-25,
708 S.E.2d 884, 891 (2011) (holding that a warrant supported by probable cause is a bar to liability
for false imprisonment).
The Supreme Court has described probable cause as a “flexible, common-sense standard.”
Florida v. Harris, 133 S. Ct. 1050, 1053 (2013) (citing Illinois v. Gates, 462 U.S. 213, 239 (1983)). In
this case, “[p]robable cause existed if ‘at the moment the arrest was made . . . the facts and
17
circumstances within [the defendants’] knowledge and of which [they] had reasonably trustworthy
information were sufficient to warrant a prudent man in believing’ that [Lucas] had violated [the
law].” Hunter v. Bryant, 502 U.S. 224, 228 (1991) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964));
see also Michigan v. DeFillippo, 443 U.S. 31, 37 (1979) (collecting authorities) (“This Court
repeatedly has explained that ‘probable cause’ to justify an arrest means facts and circumstances
within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or
is about to commit an offense.”). Thus, while probable cause requires “more than mere suspicion of
wrongdoing,” it “requires much less evidence than needed to convict.” Walker v. Scott, No. 7:05CV-00010, 2006 WL 1288315, at *6 (W.D. Va. May 4, 2006), aff'd, 203 F. App'x 447 (4th Cir. 2006);
see also Wilkes v. Young, 28 F.3d 1362, 1366 n.3 (4th Cir. 1994) (citing Bennett v. City of Grand
Prairie, Texas, 883 F.2d 400, 405 (5th Cir. 1989), for the proposition that “probable cause requires
much less evidence than is required to convict”). Indeed, probable cause is a lower standard than
“more likely than not,” i.e., a preponderance of the evidence. See United States v. Ortiz, 669 F.3d
439, 446 (4th Cir. 2012) (reversing where the district court “erroneously elevated the probable cause
standard to one more demanding than a preponderance”).
Instead, what is required is a “fair probability,” given all the circumstances. Gates, 462 U.S.
at 238; see also id. at 246 (“[P]robable cause does not demand the certainty we associate with formal
trials. It is enough that there was a fair probability[.]”); Harris, 133 S. Ct. at 1055 (alterations in
original) (citing Gates, 462 U.S. at 232) (“All we have required is the kind of ‘fair probability’ on
which ‘reasonable and prudent [people,] not legal technicians, act.’”). Moreover, the Supreme Court
has noted that it is a fundamental principle that courts “do not evaluate probable cause in
hindsight[.]” Harris, 133 S. Ct. at 1059 (citing United States v. Di Re, 332 U.S. 581, 595 (1948)). In
terms of an arrest, the relevant question is whether probable cause existed at the time. Hunter, 502
18
U.S. at 228. Finally, it is well established that “[n]ot every mix-up in the issuance of an arrest
warrant, even though it leads to the arrest of the wrong person with attendant inconvenience and
humiliation, automatically constitutes a constitutional violation for which a remedy may be sought
under 42 U.S.C. § 1983.” Thompson v. Prince William Cnty., 753 F.2d 363, 364 (4th Cir. 1985).
IV.
Plainly, Shively had probable cause when he sought warrants for Lucas’ arrest. He was told
by Lamb, a fingerprint examiner, that there was a match between the prints recovered from the two
crime scenes. He then canvassed businesses in the area of the Franklin County burglary, asking for a
person with the name “Ryan” who matched the physical description provided by the Fredericksburg
victim. A citizen tipster provided him with the name of Andre Lucas, the father of Ryan Lucas.
Shively sent Lucas’ known fingerprints to Lamb, and was then informed by Lamb that Lucas’ known
prints matched the latent prints from the Fredericksburg burglary. Certainly, at that point in time,
Shively had sufficient inculpatory information to meet the probable cause standard. Lucas’ Sheriff’s
Office file and DMV records indicated that Lucas, at least at some point, lived near the scene of the
Franklin County burglary. As discussed in more detail below, Lucas generally matched the physical
description provided by the Fredericksburg victims. Most critically, Shively had information
forensically linking Lucas to both crimes scenes. The evidence at the time thus provided a “fair
probability” that Lucas had committed the Franklin County burglary. As such, Shively was entitled
to seek out warrants for Lucas’ arrest when he did so.
Lucas argues that “Shively relied on information from an informant’s confidential
information who [he] had no reason to trust or believe.” Pl.’s Br. in Opp’n to Defs.’ Mot. for
Summ. J., Dkt. No. 44, at 20. But Shively had no reason to distrust or disbelieve the information he
received from storeowner. Moreover, this information merely prompted further investigation.
19
Shively did not arrest Lucas based on this “rumor,” but did exactly what is expected of a detective:
investigate a lead.
Lucas also asserts that Shively’s representation in his warrant application that Lucas was
forensically linked to the Franklin County burglary was “a complete fallacy.” Id. This claim is
difficult to comprehend. Shively was told by Lamb, a fingerprint examiner, that the fingerprints
from both burglaries matched and that Lucas’ known prints were a match to the latent prints from
the Fredericksburg burglary. Shively’s reliance on Lamb’s statements was reasonable. Nonfingerprint examiners must be able to rely on the representation of experts in the field; otherwise
non-examiners would never be able to be use fingerprint analysis in their probable cause
determinations.
Indeed, “a police force could not function without reasonable reliance on the statements and
efforts of others.” Liu v. Phillips, 234 F.3d 55, 57-58 (1st Cir. 2000) (citing Whiteley v. Warden, 401
U.S. 560, 568 (1971)); see also United States v. Hensley, 469 U.S. 221, 231 (1985) (citing United
States v. Robinson, 536 F.2d 1298, 1299 (1976) (“[E]ffective law enforcement cannot be conducted
unless police officers can act on directions and information transmitted by one officer to
another . . . .”).
The First Circuit’s decision in Burke v. Town of Walpole, 405 F.3d 66 (1st Cir. 2005), is
instructive. In that case, the defendant police officers included the opinion of a forensic dentist in
their application for a search warrant. The dentist determined that bite marks on a murder victim
were made by human teeth and that, “with reasonable scientific certainty,” they were made by the
plaintiff, Edmund Burke. Id. at 80. Burke was ultimately exonerated by other forensic evidence and
released from pre-trial detention after spending forty-one days in jail. Id. at 74.
Burke ultimately brought suit against a number of defendants on a number of theories.
Most relevant to the court’s analysis here is Burke’s claim that “the police defendants should have
20
known that [the forensic dentist’s] bite mark opinion was inaccurate and unreliable, and that they
acted with reckless disregard for the truth by including that evidence in the arrest warrant
application.” Id. at 81 (internal footnotes omitted). The First Circuit held that
[w]hile Burke assails the reliability of bite mark analysis generally, he does not dispute
[the forensic dentist’s] credentials or point to any evidence that the police had any
reason to doubt [the forensic dentist’s] opinion. Burke thus fails to establish that
“circumstances evinced obvious reasons to doubt the veracity” of the inculpatory
bite mark evidence, and fails to preserve a genuine dispute on his claim that
inaccurate evidence was recklessly included in the warrant application in violation of
his Fourth Amendment rights.
Id. at 83 (internal alterations omitted) (quoting United States v. Ranney, 298 F.3d 74, 78 (1st Cir.
2002)). Lucas’ argument contains precisely the same flaw in this case. He has failed to present any
evidence of circumstances evincing reasons for Shively to doubt the veracity of Lamb’s fingerprint
analysis at that time he sought warrants for Lucas’ arrest.17
Furthermore, an officer does not need to rely on a foolproof source of forensic evidence in
order to meet the probable cause standard.
[F]orensic evidence relied upon by the police to establish probable cause to arrest
need not be unassailably accurate. “[O]ne who asserts the existence of probable
cause is not a guarantor either of the accuracy of the information upon which he has
reasonably relied or of the ultimate conclusion that he reasonably drew therefrom.”
Id. at 80 (alterations in original) (quoting Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d
249, 255 (1st Cir. 1996)). There may be a hypothetical situation in which a law enforcement
officer unreasonably relies on the opinion of a qualified forensic expert, but such a situation
would require a highly extreme and unusual fact pattern. No such scenario exists here.
Lucas has provided no evidence that Shively had any reason whatsoever to doubt Lamb’s
analysis.
17
The First Circuit reserved the district court’s grant of summary judgment as to one police
defendant, finding that Burke had provided sufficient evidence viewed, in the light most favorable to
him, that the officer had received exculpatory DNA evidence and intentionally or recklessly withheld
it from the officer preparing the warrant for Burke’s arrest. Burke, 405 F.3d at 84. On the rest of
Burke’s claims the First Circuit affirmed summary judgment. Id. at 96.
21
Lucas also argues that Shively violated “protocol” requiring him to have fingerprints
examined by the Virginia Department of Forensic Science Western Laboratory (“the Lab”). As an
initial matter, the court is at a loss as to what protocol Lucas is referencing. Although Lucas refers
to an unnamed and unsourced protocol in his pleadings, it is never accompanied by a citation to the
record. See Pl.’s Br. in Opp’n to Defs.’ Mot. for Summ. J., Dkt. No. 44, at 20, 22, 25. The court has
combed the exhibits and deposition transcripts to no avail. In fact, plaintiff’s counsel specifically
asked Shively if, since Lucas’ arrest, he had been instructed not to seek arrest warrants until receiving
fingerprint analysis from the Lab. Shively answered that he had not been so instructed. Shively
Dep., at 180:20-181:1. Thus, Lucas has failed to provide evidence that there was any protocol
requiring Shively to act only on fingerprint analysis done by the Lab.
More fundamentally, violations of internal police protocols do not automatically translate
into violations of a person’s constitutional rights. See Steen v. Myers, 486 F.3d 1017, 1023 (7th Cir.
2007) (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 838 (1998)) (“[A] failure to comply with
departmental policy does not implicate the Constitutional protections of the Fourteenth
Amendment.”). “That [a police department’s standard operating procedures] might require an
officer to refrain from making an arrest under [a given set of] facts does not eliminate the existence
of probable cause.” Tanberg v. Sholtis, 401 F.3d 1151, 1158-59 (10th Cir. 2005); cf. Thompson v.
City of Chicago, 472 F.3d 444, 455 (7th Cir. 2006) (“Whether [an officer’s] conduct conformed with
the internal [police department general orders] concerning the use of force on an assailant was
irrelevant to the jury’s determination of whether his actions . . . were ‘objectively reasonable’ under
the Fourth Amendment.”). Thus, even assuming that Shively did violate some internal protocol, it
would not overcome the other facts and circumstances in support of probable cause.
Lucas further argues that Shively “ignored significant problems with the[] case against
[Lucas] and rushed to get warrants based on unfounded information.” Pl.’s Br. in Opp’n to Defs.’
22
Mot. for Summ. J., Dkt. No. 44, at 20-21. Specifically, Lucas notes that Shively sought warrants
against him even though he had not heard from the Lab. Again, even assuming that the Sheriff’s
Office had some protocol requiring the use of forensic evidence provided by the Lab alone, the
violation of internal protocols cannot be contorted into a constitutional violation or lack of probable
cause. Shively’s reliance on the forensic evidence provided by Lamb was reasonable and he was not
required to wait for the Lab’s analysis to meet the probable cause standard.
Next, Lucas notes the discrepancy between his weight as listed in his DMV records and the
weight estimate given by the Fredericksburg victim. Even setting aside the obvious fact that adult
human beings are capable of gaining or losing significant amounts of weight, this argument is
without merit.18 The Fourth Circuit has held that such details that, with hindsight, may have alerted
police that they were arresting the wrong person are not sufficient to defeat other indicia of
probable cause. In Thompson v. Prince William County, 753 F.2d 363 (4th Cir. 1985), the Fourth
Circuit addressed the case of Lisa Ann Thompson, who had been mistakenly arrested for drug
trafficking. Thompson brought a Section 1983 action against the officers responsible for her arrest.
The Fourth Circuit affirmed the dismissal of her claims, noting that
[w]hile there are details which with hindsight might have alerted the undercover
agent or the officer serving the warrant that Lisa Ann Thompson might not be the
person sought, it simply demands too much to expect police officers, on the basis of
slight discrepancies of height (5′ 5″ as against 5′ 7″) and weight or in color of eyes
(blue versus brown) and hair (blond as opposed to brown), to abandon obtention or
execution of a warrant on someone who, for other strong indications (identity of
first name, confirmation of the first name by a police informant, close connection
with vehicle registered in Lisa Ann Thompson’s name), meets the warrant’s
description.
18
Lucas himself has remained roughly the same weight since his was fifteen. Lucas Dep., at 16:7-13.
This fact, however, is irrelevant because such information was gathered during the course of
discovery for this litigation, not during the investigation. Any argument that Shively should have
discovered this fact during his investigation is addressed supra p. 26.
23
Id. at 365. The Fourth Circuit concluded that it was “satisfied that under the totality of the
circumstances there was probable cause to support application for and execution of the warrant, and
that the warrant was valid.” Id. (citing Illinois v. Gates, 462 U.S. 213, 239 (1983)).
Here, Shively had significantly more “strong indications” that Lucas was the proper person
for whom to obtain a warrant than the officers who arrested Thompson. First, as has been
discussed at great length, there was the forensic link between Lucas and the crimes scenes. Second,
the general physical description – sex, race, height, hair color – matched. Importantly, once Shively
and Lamb realized the most significant physical characteristic of the suspect, the full sleeve tattoos,
did not match Lucas, they promptly began to acquire other exculpatory evidence leading to the
prompt dismissal of all charges.19 As such, it would “simply demand[] too much to expect police
officers” possessing a matching thumbprint and an otherwise matching physical description to
abandon obtention of a warrant based on such a weight discrepancy (210 pounds as opposed to
140-165 pounds).20 Similarly, Lucas’ observation that he had an address in Franklin County and did
19
Lucas asserts that both Shively and Lamb continued to detain him even after they became aware
that he was not the culprit of the burglaries. The evidence tells a different story. Lamb began
investigating Lucas’ alibi at 9:13 a.m. on April 25, 2012, the day after the arrest. By day’s end, he had
acquired a fax of Lucas’ timesheet, discussed the problematic tattoos with Shively, spoken with
Lucas’ mother, and informed his superior officer of the situation. The next day, April 26, 2012,
Lamb met with the Fredericksburg Commonwealth’s Attorney, and related his view that the charges
against Lucas should be dropped. The Fredericksburg charges were, in fact, dismissed by Order
dated April 27, 2012. Later that day, Lucas was released from custody in Franklin County. As for
Shively, he was informed for the first time that Lucas was not in fact forensically linked to the
Franklin County burglary on April 26. The Franklin County charges were dismissed on April 30,
2012, some three days after Lucas’ release. See facts outlined infra pp. 12-15. It is clear that Lamb
acted promptly to investigate Lucas’ alibi, and when it appeared that it checked out, both he and
Shively took steps to secure Lucas’ release. Thus, to the extent Lucas’ malicious prosecution claim
rests on what occurred after his arrest, summary judgment for the defendants is still appropriate.
20
Indeed, in Garcia v. City of Chicago, No. 08 C 05380, 2011 WL 4348136 (N.D. Ill. Sept. 15, 2011),
the court found that an even larger weight differential (245 pounds as opposed to 160 pounds), even
paired with a six to seven inch height disparity, was insufficient to create a dispute of a material fact
where the plaintiff had the same name and birth date as the person named in the arrest warrant. Id.
at *1, 3.
24
not live in Fredericksburg does not nullify the other inculpatory evidence Shively had. There is little
if any exculpatory value in the fact that Lucas had an address very close to one crime scene and
within a reasonable drive of the other.
Lucas also points to the different “modus operandi” involved in the two burglaries (breaking
in and stealing significant valuables versus sneaking in through an unlocked door to swipe petty
cash). However, there was sufficient other evidence, most importantly the forensic evidence, to
support probable cause without a similar modus operandi. Indeed, a forensic link to two different
crime scenes can establish probable cause for both no matter how disparate the behavior involved in
the offenses. A criminal may progress to more sophisticated and serious offenses as he or she
advances in a criminal career, or become ever more desperate and careless while struggling to feed
an addiction. Or a criminal may fluctuate between offenses serious and petty based simply on
happenstance of opportunity or on personal whim. A unique method of operation may at times
indicate a link between crimes, but that lack of a similar modus operandi is not inherently evidence
that a link does not exist.
Lucas also complains that Shively failed to “compare[] the footprints from the two crime
scenes to determine if they matched,” and “did not attempt to locate or talk to [him] or his family or
use the DMV photo in a photo array for the Fredericksburg homeowner before obtaining the
warrants.” Pl.’s Br. in Opp’n to Defs.’ Mot. for Summ. J., Dkt. No. 44, at 21. However, the Fourth
Circuit has expressly held that a law enforcement officer is “‘not required to exhaust every
potentially exculpatory lead or resolve every doubt about [a suspect’s] guilt before probable cause [is]
established.’” Durham v. Horner, 690 F.3d 183, 190 (4th Cir. 2012) (citing Miller v. Prince George's
Cnty., Md., 475 F.3d 621, 632 (4th Cir. 2007). “It will always be possible to take additional
investigatory steps. But the law sensibly does not determine reasonableness based on secondguessing with the benefit of 20/20 hindsight.” Brown v. Wiita, 7 F. App'x 275, 280 (4th Cir. 2001)
25
(unpublished per curiam opinion) (internal alterations and quotation marks omitted) (citing Rowland
v. Perry, 41 F.3d 167, 174 (4th Cir. 1994); Thompson, 753 F.2d at 365). This is so even when the
officer “might have avoided the mistake by conducting additional investigation.” Id. Additionally,
commonsense dictates that officers are not inexorably required to speak with criminal suspects
and/or their friends and family in order to meet the probable cause standard. A suspect may well
seek to destroy evidence or evade capture if he or she is made aware that an investigation is pending.
Law enforcement may reasonably acquire probable cause by other investigatory methods. 21
Nor can anything untoward or improper be implied from the fact that Shively (and Lamb)
conducted further investigation after Lucas’ arrest. The defendant officers were seeking to support a
prosecution that would need to meet the beyond a reasonable doubt standard, the highest burden of
proof known to the law and a significantly greater burden than that of probable cause. Accordingly,
further investigation does not imply that the investigation into probable cause was fatally flawed.
In short, at the time of Lucas’ arrest, the facts and circumstances within Shively’s knowledge
and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in
believing that Lucas had violated the law.
V.
Lamb was presented with the same facts and circumstances as Shively. As such, much of the
same analysis applies to Lucas’ claim against Lamb. However, the obvious significant difference
between Shively and Lamb is that Lamb was the source of the mistaken fingerprint identification.22
It is worth noting that, after Lucas was arrested, the Fredericksburg victim in fact picked out
Lucas’ picture (along with one other) as looking like the burglar. The victim further asserted that he
was sure that he had at least seen Lucas in the neighborhood before. Lamp Dep., at 190:20-191:3.
It is thus highly doubtful a photo array would have exonerated him.
21
22
Lucas also claims that Lamb gave undue weight to the information provided by the homeless
person who was transported to Snowden after speaking with the Fredericksburg police. However,
Lamb’s contemporary statements clearly show that he viewed this information with a good deal of
skepticism. Lamb began his investigation with the name “Ryan” as a tip; he did not end it with that.
26
It is undisputed that Lamb erred in matching Lucas’ fingerprint to the latent print recovered from
the Fredericksburg burglary scene.
However, mere “negligence or innocent mistake” on the part of Lamb is insufficient. Miller
v. Prince George's Cnty., MD, 475 F.3d 621, 627-28 (4th Cir. 2007) (citing Franks v. Delaware, 438
U.S. 154, 171 (1978)). Lucas’ claims against Lamb can survive summary judgment only if there is
sufficient evidence for a jury to find that Lamb acted deliberately or with a “reckless disregard for
the truth” in averring in support of probable cause that Lucas was forensically linked to the crime
scene. Id. at 627; see also Matthews v. Thomas, 385 F. App'x 283, 287 (4th Cir. 2010) (unpublished)
(citing Miller, 475 F.3d at 627) (same).
Reckless disregard can be established by evidence that an officer acted with a high
degree of awareness of a statement’s probable falsity, that is, when viewing all the
evidence, the affiant must have entertained serious doubts as to the truth of his
statements or had obvious reasons to doubt the accuracy of the information he
reported.
Davis v. Bacigalupi, 711 F. Supp. 2d 609, 622 (E.D. Va. 2010) (internal alterations and quotation
marks omitted) (citing Miller, 475 F.3d at 627).
At the hearing, Lucas argued that because Lamb failed to have another fingerprint examiner
verify his conclusion, he recklessly disregarded the verification procedures of the ACE-V
methodology that make fingerprint analysis reliable. As previously noted, the court ordered
supplemental briefing on this issue. Lucas asserts that by failing to follow the final verification step
of the ACE-V methodology, Lamb’s analysis was rendered so unreliable that employing it to support
probable cause constituted reckless disregard for the truth. In support of this argument, Lucas’
supplemental briefing directs the court primarily to fingerprint guidelines and manuals and the
declarations and statements from fingerprint examiners regarding the importance of the ACE-V
methodology, in particular the final verification step. See Pl.’s Supplemental Br. in Opp’n to Defs.’
Mot. for Summ. J., Dkt. No. 63, at 3-6.
27
Lamb, by contrast, cites the Fourth Circuit’s decision in United States v. Crisp, 324 F.3d 261
(4th Cir. 2003). In Crisp, the Fourth Circuit upheld the district court’s admission of a fingerprint
examiner’s opinion, even though that opinion was not subject to an independent review by another
examiner. Id. at 268 n.4 (“Here, there was no . . . independent review”); see also id. at 276 (4th Cir.
2003) (Michael, J., dissenting) (noting that “in many cases, including this one, no verification takes
place”). Given this holding, it is difficult to see how Lamb’s use of an unverified opinion in a
probable cause determination can be viewed as reckless. If such an opinion is sufficiently reliable to
pass muster under the Daubert inquiry in the eyes of the Fourth Circuit, it surely must follow that it
is sufficiently reliable for use in a probable cause determination.
The two cases cited by Lucas are not on point. The district court in United States v. Aman,
748 F. Supp. 2d 531 (E.D. Va. 2010), discussed the Crisp decision and found that the government’s
fingerprint expert met the Daubert standard. It did not, however, address the issue of whether an
unverified fingerprint examiner’s opinion would meet that standard as Crisp did. The Arizona Court
of Appeals decision in State v. Castillo, No. 2 CA-CR 2011-0215, 2012 WL 1080909 (Ariz. Ct. App.
Mar. 30, 2012) (unpublished), has even less relevance to this case. In Castillo, the issue was not the
reliability of fingerprint analysis. Instead, the defendant challenged his conviction on the basis of
hearsay and the Confrontation Clause, arguing that the trial court erred in allowing a fingerprint
examiner to testify that her work was verified by another examiner. Id. at *1. In its brief opinion
denying the appeal, the court rehashed the testimony of the fingerprint examiner at issue and
incidentally outlined the ACE-V process. Id. The opinion does not address the issue of whether an
unverified fingerprint examiner’s opinion would meet a particular threshold of reliability.
In sum, given that the Fourth Circuit has affirmed that an unverified fingerprint analysis
meets the basic threshold for scientific reliability, this court cannot hold that Lamb acted with a
28
“reckless disregard for the truth” in averring that Lucas was forensically linked to the crime scene
based on the fact that his analysis had not been independently verified.
VI.
It is indisputable that Lucas suffered significant harm from this episode – not only did he
lose his liberty for three days for crimes he did not commit, but he also suffered the indignities
associated with being arrested and detained. The evidence clearly establishes, however, that the
cause of that harm was a simple mistake. Law enforcement officers, like all individuals, will
inevitably make mistakes. It is the nature of their high-stakes work that harm will often result when
they do. That is undeniably unfortunate. However, recognizing the difficulty of police work, the
law only holds individuals liable for deliberate or reckless conduct. The misidentification of Lucas’
thumbprint by Lamb does not meet this standard.
Furthermore, the other factors Lamb and Shively used to determine probable cause were
proper under the law. Finally, the “significant problems” Lucas alleges existed in the case against
him at the time of his arrest may have provided grounds on which to argue reasonable doubt, but
certainly did not come close to defeating the much lesser standard of probable cause. As such, the
court is compelled to award summary judgment in favor of the defendants.
An appropriate Order will be entered this day.
Entered: July 7, 2014
/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge
29
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