Culberson v. Warren ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL D. CULBERSON,
Plaintiff-Appellant,
v. No. 95-2068
H. E. WARREN,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CA-95-92-2)
Submitted: May 14, 1996
Decided: May 29, 1996
Before HAMILTON and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Stephen J. Burgess, STEINGOLD & BURGESS, Virginia Beach,
Virginia, for Appellant. Michael F. Imprevento, SACKS, SACKS &
IMPREVENTO, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael D. Culberson filed a 42 U.S.C. § 1983 (1988) action alleg-
ing that H.E. Warren, the Defendant, arrested him without probable
cause on August 30, 1992. On that date Culberson and three friends
entered a Denny's restaurant around 2:00 a.m. and ordered drinks and
meals. Culberson claims that the service was poor and that his party
did not receive the meals ordered. Culberson complained to the man-
ager and attempted to pay only for the drinks. The restaurant manager
insisted that Culberson pay for the meals. Culberson refused and the
Defendant, a part-time police officer, was called over and Culberson
was arrested. Culberson contends that the Defendant charged him
with defrauding an innkeeper and when the state court magistrate
refused to issue a warrant on those grounds the Defendant changed
the charge to public intoxication and a warrant was issued.
The district court granted summary judgment to the Defendant on
the grounds that he acted pursuant to a valid warrant. Culberson
argues that the subsequently issued warrant is irrelevant in determin-
ing whether there was probable cause to arrest him. Regardless of the
issuance of a warrant, probable cause existed at the time of the arrest.
The Defendant stated in an affidavit that he smelled alcohol on Cul-
berson's breath and about his person, noticed that his eyes were
bloodshot, that he was unsteady on his feet and that he was acting bel-
ligerent. Culberson did not deny the allegation that he was drunk.
Thus, the district court properly granted summary judgment on the
issue of whether probable cause existed to arrest Culberson for being
drunk in public. We reject Culberson's argument that the district court
should have determined whether probable cause existed to arrest him
for defrauding an innkeeper because it was not squarely presented to
the court. Moreover, the argument has no merit because probable
cause existed for the sufficiently related charge of being drunk in pub-
lic. See, e.g. Trejo v. Perez, 693 F.2d 482, 486 (5th Cir. 1982). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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