Powell v. Murphy , 593 F. App'x 25 ( 2014 )

13-3543-cv
Powell v. Murphy
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 24th day of November, two thousand fourteen.
PRESENT: AMALYA L. KEARSE,
CHESTER J. STRAUB,
REENA RAGGI,
Circuit Judges.
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DAVID POWELL,
Plaintiff-Appellant,
v. No. 13-3543-cv
DANIEL MURPHY, badge no. 5040, individually and in
his official capacity, and ROBERT SUPPA, badge no.
1359, individually and as a detective of the SUFFOLK
COUNTY, N.Y. POLICE DEPARTMENT,
Defendants-Appellees,
OFFICER TRUESDELL, badge no. 1349, individually and
in his official capacity, EILEEN O‟CONNELL,
individually, and COUNTY OF SUFFOLK, N.Y.,
Defendants.*
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*
The Clerk of Court is directed to amend the official caption as shown above.
APPEARING FOR APPELLANT: ARTHUR V. GRASECK, JR., Oakdale, New
York.
APPEARING FOR APPELLEES: BRIAN C. MITCHELL, Assistant County
Attorney, for Dennis M. Brown, Suffolk County
Attorney, Hauppauge, New York.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Arthur D. Spatt, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on September 5, 2013, is AFFIRMED.
David Powell appeals from an award of summary judgment in favor of defendants
Officer Daniel Murphy and Detective Robert Suppa1 on Powell‟s claims of false arrest and
malicious prosecution, brought under 42 U.S.C. § 1983. Powell contends that the district
court erred in holding as a matter of law that defendants had probable cause to arrest and
prosecute him for public lewdness, thereby precluding him from satisfying a necessary
element of his false arrest and malicious prosecution claims. See Weyant v. Okst, 101
F.3d 845, 852 (2d Cir. 1996) (false arrest); Savino v. City of New York, 331 F.3d 63, 72
(2d Cir. 2003) (malicious prosecution). We review an award of summary judgment de
novo, resolving all ambiguities and drawing all reasonable factual inferences in favor of
the nonmovant, and we will affirm only if the record reveals no genuine dispute of material
fact. See Fed. R. Civ. P. 56(a); Nagle v. Marron, 663 F.3d 100, 104–05 (2d Cir. 2011).
We assume the parties‟ familiarity with the underlying facts, the procedural history of the
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Powell does not appeal from that portion of the judgment awarded to defendants Donald
Truesdell, Eileen O‟Connell, and the County of Suffolk, New York.
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case, and the issues on appeal, which we reference only as necessary to explain our
decision to affirm.
Upon independent review, we conclude, as the district court did, that there was no
genuine issue of material fact with regard to the existence of probable cause for Powell‟s
arrest. “[P]robable cause to arrest exists when [police] officers have knowledge or
reasonably trustworthy information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the person to be arrested has
committed or is committing a crime.” Weyant v. Okst, 101 F.3d at 852. This standard is
a “fluid” one, which does not demand “hard certainties” but only facts sufficient to
establish the sort of “fair probability” on which “reasonable and prudent men, not legal
technicians, act.” Illinois v. Gates, 462 U.S. 213, 231–32, 238 (1983); see Florida v.
Harris, 133 S. Ct. 1050, 1055 (2013) (observing that probable cause is a “practical,”
“common-sensical,” “all-things-considered” standard).
At the time of arrest, police had a sworn statement from Eileen O‟Connell, who
claimed that she observed Powell masturbating in a van parked outside her home. Such
allegations from an eyewitness are sufficient to establish probable cause. See Panetta v.
Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“[I]t is well-established that a law enforcement
official has probable cause to arrest if he received his information from some person,
normally the putative victim or eyewitness.” (internal quotation marks omitted)); see also
N.Y. Penal Law § 245.00(a) (providing that “person is guilty of public lewdness when he
intentionally exposes the private or intimate parts of his body in a lewd manner or commits
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any other lewd act . . . in a public place”); People v. McNamara, 78 N.Y.2d 626, 633–34
(1991) (holding that interior of parked car is “public place” under Section 245.00(a) where
“objective circumstances establish that lewd acts committed there can, and likely would,
be seen by the casual passerby”).
In urging otherwise, Powell contends that (1) Officer Murphy and Detective Suppa
improperly characterized O‟Connell as a “casual passerby” in the Information;
(2) O‟Connell could not have been a “casual passerby” under the circumstances, given that
she observed him through bushes five or six feet from his van; and (3) the district court
erred by describing O‟Connell‟s statement to include the phrase “where someone casually
passing by could see him.” Regardless of whether O‟Connell herself was a casual
passerby, however, Officer Murphy reasonably could have concluded from the information
O‟Connell provided that Powell‟s lewd acts could, and likely would, be seen by a casual
passerby on the street near her home. See People v. McNamara, 78 N.Y.2d at 633–34.
This information included O‟Connell‟s statement that (1) the van was parked outside her
home, in a residential neighborhood; (2) she could see the van from her porch; and (3) after
moving from her porch to behind some bushes on her property, she clearly observed
Powell masturbating inside the van from about five or six feet away. These circumstances
established a probability “that the car‟s interior [was] visible to a member of the passing
public, and that the vehicle [was] situated in a place where it likely would be observed by
such a person.” Id. at 634. Accordingly, a reasonable officer could have believed it
probable that Powell had committed the crime of public lewdness. See id. at 633–34; see
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also Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013) (“[P]robable cause does
not demand that an officer‟s good-faith belief that a suspect has committed or is
committing a crime be „correct or more likely true than false.‟” (quoting Texas v. Brown,
460 U.S. 730, 742 (1983))).
Even if Powell had not intended to be observed, that fact would not alter the
probable cause assessment. Intent to be observed is not a required element of public
lewdness under § 245.00(a). See People v. McNamara, 78 N.Y.2d at 630–32; id. at 630(stating that “mens rea in the form of intent to be observed, reckless disregard of
observation, or intent to arouse or gratify sexual desires by means of public observation is
not required by section 245.00(a)”). Thus, even viewing the record in the light most
favorable to Powell, we conclude that the district court properly awarded summary
judgment in favor of defendants on Powell‟s false arrest claim. See Jenkins v. City of
New York, 478 F.3d 76, 84, 88 (2d Cir. 2007) (recognizing probable cause as complete
defense to claims for false arrest and false imprisonment).
Powell‟s malicious prosecution claim fares no better. While the probable cause
inquiries for false arrest and malicious prosecution are distinct, where, as here, probable
cause to arrest existed, and Powell concedes that defendants did not learn of any
intervening facts between arrest and initiation of prosecution to undermine that probable
cause, claims of malicious prosecution cannot survive. See Manganiello v. City of New
York, 612 F.3d 149, 161–62 (2d Cir. 2010) (recognizing probable cause as complete
defense to malicious prosecution); Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d
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Cir. 1996) (stating that, for probable cause to dissipate between arrest and prosecution,
“groundless nature of the charges must be made apparent by the discovery of some
intervening fact”).
We have considered Powell‟s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O‟HAGAN WOLFE, Clerk of Court
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