Patrick Greve v. Austin Bass ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0121n.06
CASE NO. 18-6069
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PATRICK M. GREVE, )
FILED
Feb 25, 2020
)
Plaintiff-Appellant, ) DEBORAH S. HUNT, Clerk
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
AUSTIN J. BASS, et al., ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
Defendants-Appellees. )
Before: BATCHELDER, GRIFFIN, and DONALD, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. When Police Officer Austin Bass responded
to an after-hours break-in at a nightclub (“Club”) owned by M Street Entertainment Group
(“MSEG”), he immediately spotted, suspected, and detained Patrick Greve. He refused to hear
Greve’s explanation or consider any exonerating facts or circumstances. When the Club’s night
manager, Oleg Bulut, arrived, he chose to press charges instead of corroborating Greve’s
explanation of the exonerating circumstances or providing the Club’s surveillance video, which
would have cleared Greve; no one at MSEG ever chose to help Greve by sharing or acting on their
knowledge and evidence of his innocence. Officer Bass arrested Greve on charges of public
intoxication and attempted burglary, but the state court dismissed the charges. Greve sued in
federal court, accusing Bass of false arrest in violation of the Fourth Amendment, and accusing
Bulut and MSEG of malicious prosecution in violation of Tennessee law. The district court
granted the defendants’ motion for summary judgment and Greve appeals, claiming that genuine
disputes of material fact should have been submitted to a jury: namely, whether Officer Bass had
No. 18-6069, Greve v. Bass
probable cause for the arrest and whether Bulut and MSEG furthered the criminal prosecution.
Because we agree with Greve, we REVERSE and REMAND for further proceedings.
I.
This is an appeal from the district court’s grant of summary judgment, which we review de
novo, following the same standard that governed the district court. Lenning v. Commercial Union
Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). Summary judgment is appropriate where “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). In considering these facts, we view the evidence “in a light most favorable
to the party opposing the motion, giving that party the benefit of all reasonable inferences.” Baker
v. City of Trenton, 936 F.3d 523, 529 (6th Cir. 2019).
Here, Greve is “the party opposing the motion,” so we proceed from his account of the
disputed events, viewing the evidence in the light most favorable to him and giving him the benefit
of all reasonable inferences. We do not, however, make any determination of any facts, even by
implication. See DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 611 (6th Cir. 2015).
II.
At a little before 2:00 a.m. on Wednesday, February 25, 2015, a Metropolitan Nashville
Police Department dispatcher broadcast a call that an alarm had sounded at the Club, indicating a
break-in. After-hours break-ins at the Club are relatively common, hence the alarm and immediate
call to the police, and the on-site surveillance cameras. Officer Bass, patrolling alone, was the first
officer to respond and arrive at the scene. He immediately spotted Greve waiting outside the Club,
in the walkway leading up the ramp the Club’s front entrance. The temperature was well below
freezing and Greve was coatless but wrapped in what turned out to be a tablecloth from the Club.
Officer Bass noted that the Club appeared closed and there were no other people around. He
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parked his patrol car near the front entrance and walked toward Greve. He could hear the Club’s
alarm sounding.
Greve was talking into his cell phone when Officer Bass arrived, leaving a voice mail for
his employer, Jack Gavin, who Greve believed could help him get into the locked Club to retrieve
his belongings. Greve ended his call and greeted Officer Bass warmly, walking toward him to
meet him halfway, extending his hand for a handshake, introducing himself as Patrick, and
explaining that he had been working at an event inside the Club, that his belongings were locked
inside, and that the door handle fell off when he tried the door. Officer Bass did not respond to
Greve’s greeting. Instead, he immediately ordered Greve to turn around and put his hands against
the wall, patted him down, and secured him with handcuffs, very tightly. Officer Bass did not say
anything else. When Greve asked what was going on, Bass responded curtly that he was
“detaining” him and began pushing Greve toward his patrol car. Officer Bass did tell Greve his
name when Greve asked, to which Greve tried again: “I’m Patrick Greve. Let’s treat each other
like humans.” Officer Bass continued to push Greve toward the patrol car, took Greve’s cell phone
from him, and shoved Greve into the patrol car without any further conversation. It is unclear
whether merely pulling on the Club’s locked door, even breaking the handle when doing so, would
set off the alarm, or if an actual breach would be necessary, but Officer Bass did not question
whether Greve had opened the door, set off the alarm, or entered the Club. Six other officers
arrived at the scene, but none of them ever spoke with Greve. According to police records, Officer
Bass arrived at the scene at 1:57 a.m. and formally arrested Greve at 2:53 a.m., so Greve sat in the
patrol car for almost an hour.
As mentioned, Greve had been working at an event at the Club that night (the “Event”) and
was locked out with his belongings still inside, so he was waiting for someone to arrive and let
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No. 18-6069, Greve v. Bass
him in to get them. Jack Gavin had hired Greve as a videographer to document the day-to-day
activities of a musician named Erica Nicole, leading up to and including the Event—an “album
release party” with a small concert for “industry professionals to see her play.” Gavin had picked
up Greve at his home that morning and driven him to the Club where Greve spent the day helping
Howard Bennett, Kendal Kramer, and Austin Rothrock, among others, assemble the stage and set
up the equipment. Gavin drove Greve home in the afternoon so that Greve could clean up and
drove him back to the Club by 5:00 p.m. so that Greve could film the Event, which ended sometime
between 11:00 and 11:30 p.m., by the time Nicole, her entourage, and all the guests had left. Greve
encountered Bulut several times throughout the evening and even tried to talk with him once,
though Bulut was unreceptive. While filming the Event, Greve drank about one beer per hour—
so five beers over five hours—and ate from the complimentary buffet. He was not drunk. At the
end of the Event, Greve attempted to leave with Nicole in her tour bus, but Gavin told him to
instead stay and help disassemble the stage and equipment and load it onto the truck. Rothrock
attested that, while they were moving and packing this equipment, Greve “did not appear to be
intoxicated or impaired in any way.”
While Greve, Bennett, Kramer, and Rothrock were shuttling equipment to the truck, Bulut
was pacing around impatiently. At about 1:00 a.m., after countless trips, they were almost finished
and Greve was on his way back into the Club—and returning a Club tablecloth that had been used
to cover some equipment—when Kramer and Rothrock discovered that the door they had been
using was suddenly locked and they were locked out of the Club with their belongings still inside.
Because they thought the lockout happened too fast for Bulut to have already left the premises,
Kramer and Rothrock knocked at the door, shouted, and tried knocking at other doors. Meanwhile,
Greve tried to call Gavin on his cell phone (nine times in all) and walked across the street to where
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No. 18-6069, Greve v. Bass
Gavin had parked his car, only to get no answer on the phone and discover that Gavin’s car was
gone. When Greve got back to the Club, the truck was gone (apparently Bennett drove it away)
and Kramer and Rothrock were driving off too, but yelled to Greve that they had gotten into the
Club and retrieved their belongings and that Greve could get in through the front door. When
Greve tried the front door, however, “the handle fell off right in [his] hand,” and the door remained
locked. Greve picked up the pieces to the door handle and placed them to the side, and, using the
tablecloth as a wrap to try to stay warm, continued to call Gavin and waited for someone to show
up and let him into the Club. He could hear the alarm sounding inside the Club, but he was locked
out and never got back inside. Unknown to Greve at the time, Kramer had used a piece of pipe to
pry the front door open and gain entrance, breaking the door handle and setting off the alarm. In
fact, Kramer had damaged at least two other doors in his attempt to gain access using the pipe.
Greve was relieved when Officer Bass arrived—hence the enthusiastic greeting—because
he knew he “had done nothing wrong” and was waiting for someone to arrive and help him get his
belongings: jacket, tie, dress shirt, wallet, keys, and his camera and lenses inside a camera bag. In
fact, he knew exactly where they were located inside:
I placed them with my camera bag near the back, what I would call the back door.
There’s a - - you can - - it rises up a bit to kind of a VIP section. There’s some - -
some kind of lounge areas there. That’s where my stuff was, and most of the tech
guys were there throughout the day.
But, as already discussed, Officer Bass chose to ignore Greve’s plea for help, refusing to even
speak with him, and rather than considering the facts and circumstances, he immediately
handcuffed Greve—leaving the tablecloth on the ground where Greve had been waiting—and
detained Greve in his patrol car. It had been over two hours since Greve had his last alcoholic
drink. During his deposition, Officer Bass conceded that Greve was coherent and that he had no
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No. 18-6069, Greve v. Bass
trouble understanding what Greve was saying (but maintained that he did not recall anything Greve
said to him before he placed Greve in handcuffs).
When Bulut arrived at the scene, he unlocked the Club’s door and led Officer Bass, Officer
Billy Price, and Sergeant Derek Keeler inside, where they inspected for damage related to the
suspected break-in. Officer Price testified that he was not looking for Greve’s belongings during
the inspection, as no one had even described them to him, nor did he recall Officer Bass looking
for them. And Bulut testified that he did not know they were looking for any of Greve’s belongings
in the Club. But, to the extent that anyone looked for Greve’s belongings, Officer Bass testified
that he was looking for a backpack, while Sergeant Keeler was looking for “[a] bag, or something
like that, that didn’t belong [in the Club,] that was noticeable to the manager [Bulut].” After the
inspection of the Club, Officer Bass led Bulut back to his patrol car and shined his flashlight on
Greve in the backseat. When Bulut denied knowing or recognizing Greve, and claimed that Greve
had no reason to be inside the Club after hours, Bass told Greve that “he doesn’t recognize you,
none of your stuff is in the building[,] and he wants to press charges.” Greve responded “right
then” by asking if he could lead them inside and show them where his belongings were, but Bass
said no. Some time later, Bass got into the car, told Greve that he was arresting him and taking
him to detention, read him his Miranda rights, and engaged in a conversation with Greve, which
Greve recounts as follows:
There was a conversation when [Officer Bass] finally read the Miranda rights in
the car where he asked me about a pry bar. And I started to get frustrated because,
obviously, I was frustrated. I didn’t know what was going on.
And I told him to go find that crowbar and take some prints on it. I’d be happy to
help out in whatever way. He said, what crowbar? I said, you said there was a
crowbar. He says, no, I said there was a pry bar. To which I replied, now I feel
like you’re just being a jerk.
Because this guy was just trying to instigate or provoke me. And that’s how it
seemed from the beginning, and I was losing my - - my cool about it.
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No. 18-6069, Greve v. Bass
When Bass threatened that fingerprints would be collected from the pry bar, Greve responded,
“excellent,” and implored Bass to “promise” that prints would be collected, to which Bass agreed.
If fingerprints were collected, the results were not shared with Greve.
At the police station, Officer Bass swore out affidavits accusing Greve of attempted
burglary, in violation of T.C.A. § 39-14-402, and public intoxication, in violation of T.C.A. § 39-
17-310, and a reviewing judge made an after-the-fact determination of probable cause for both
charges. Officers Bass and Price both completed incident reports.1 In his arrest report, Officer
Bass designated Bulut as the “prosecutor” of the charges against Greve, but he listed himself as
the prosecutor and Bulut as the victim in the affidavits supporting the arrest warrant for the
attempted-burglary charge against Greve. Officer Bass charged Greve with attempted burglary
without ever watching the surveillance videos or speaking with anyone other than Bulut, such as
anyone else at the Club. Greve spent about 12 hours in jail before being released on bond.
The following morning, when Jack Gavin finally received Greve’s voicemails, he went to
the Club and immediately spotted Greve’s belongings “in plain view on a bench by the back door
where the crew members had stored their things during the [E]vent,” which was exactly where
Greve had told Officer Bass they were located. Gavin opined: “I do not understand how police
officers searching for [Greve]’s coat and other belongings the night before did not find them as
quickly and easily as I did.” A short time later, Gavin and Greve returned to the Club together and
spoke with Ian Cushman, the IT manager at the Club, who told them that the surveillance videos
1
Officer Price relied on statements that he attributed to Bulut, reporting: “[Bulut] is the manager at the
location. He states the restaurant closed at around 10pm and he believed all the employees of the photography
company left around the same time. [Bulut] stated the items inside belonged to the photography company who
previously agreed to pick them up the following day. [Bulut] stated the suspect [Greve] did not look familiar and did
not have access to the location. [Bulut] states there is video footage but he would not have access to it until the
following day.” Note that “the photography company” was Greve and two people working for him; Bulut did not
corroborate any of this; and Office Bass made no mention of any surveillance video.
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No. 18-6069, Greve v. Bass
had recorded Kramer (“your drum tech”) breaking into the Club, and that someone else (Greve)
was also evident later in the video as “someone in a cape,” meaning the tablecloth. Gavin and
Greve spotted Bulut while on their way inside the Club to meet with Sean Austin, the Club’s
General Manager; Austin “said that he would go get [Bulut], and then he came back minutes later
and he said that Oleg [Bulut] was not there,” so they felt Bulut was “dodging” them. Nevertheless,
Austin confirmed Ian Cushman’s story about the surveillance videos and told them that Kramer
had broken three handles off two other doors before breaking in through the front door. Austin
promised to set up a meeting with Bulut to clear up any misunderstanding, but that never happened.
Austin testified that, despite his possession of the surveillance video and his awareness that Greve
was innocent, he did not have authority to drop the charges; someone higher up at MSEG would
have to do that. Despite Greve’s and his counsel’s persistence, MSEG refused to provide Greve
any assistance.
The prosecutor pursued the case, causing Greve to appear in court at least three times but,
eventually, the Davidson County (Tenn.) Court of General Sessions dismissed the charges without
trial, ending the proceedings. Greve had to borrow money from his parents to pay his bond and
hire a criminal defense attorney, and for each of his appearances in court before the dismissal, he
had to travel from Cincinnati, Ohio, to Nashville, Tennessee.
Greve sued in federal court, raising claims against several defendants, though only four
claims remain: that Officer Bass committed false arrest and malicious prosecution in violation of
the Fourth Amendment, and that Bulut and MSEG committed malicious prosecution in violation
of Tennessee law. Following discovery, the three defendants moved for summary judgment, with
Officer Bass claiming qualified immunity based on his view of probable cause for the arrest and
prosecution; and Bulut and MSEG claiming they were not liable for the criminal prosecution.
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No. 18-6069, Greve v. Bass
One aspect of discovery, in particular, warrants mention. From his deposition testimony,
Officer Bass would appear to be either mentally deficient or dishonest. So many of his answers
were some variation of “I don’t recall,” “I don’t know,” or “I don’t understand the question,” that
far fewer than half of the questions resulted in actual answers (though, tellingly, he answered all
of his own counsel’s questions substantively, never once claiming that he didn’t recall, didn’t
know, or didn’t understand the question). When Officer Bass did answer Greve’s counsel’s
questions, his answers were often inconsistent or disputed, and were occasionally suspicious. The
most egregious example of this is his accusation—refuted by Greve and wholly unsubstantiated
by any of the other officers present at the scene or the evidence collected in connection with this
case—that when Officer Bass arrived at the scene, Greve was holding in his hand a drinking glass
containing an alcoholic beverage:
Question: Describe for me what Mr. Greve did to lead you to conclude that he
was a danger to himself?
...
Officer Bass: Wearing the poncho, cold at night, impaired, under the influence of
alcohol.
Question: Anything else?
Officer Bass: I believe he had a glass in his hand.
Question: You believe he had a glass in his hand?
Officer Bass: Of alcohol.
Question: A glass of alcohol in his hand?
Officer Bass: I believe so.
Question: Okay. Did you take it from him?
Officer Bass: I don’t recall.
Question: So you didn’t test what was in there?
Officer Bass: No.
Question: Do you know what kind of glass it was? Was it a paper cup or an
actual glass glass?
Officer Bass: I think it was a short glass glass.
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No. 18-6069, Greve v. Bass
Question: Made of glass?
Officer Bass: Yes.
Greve denied this, no other officer could corroborate this, and no such drinking glass was reported
by anyone as having been present at the scene. Later in that same deposition, the questioning
returned briefly to this issue, and Officer Bass testified:
Question: Officer Bass, I want to go back to the testimony you gave that, when
you first approached Mr. Greve, he was holding a glass in his hand.
. . . What is your testimony about what was in that glass?
Officer Bass: Can we go back and look?
Question: I’m not really in favor of going back and looking. As you sit here
now, do you remember?
Officer Bass: I don’t recall the answer I gave you previously.
Question: Okay. So do you recall whether you investigated what was in that
glass?
Officer Bass: I don’t know.
Question: Did you smell what was in the glass?
Officer Bass: I don’t know.
Question: Can you tell me what you did with the glass?
Officer Bass: No.
Question: Can you tell me if any report you ever wrote makes reference to that
glass?
Officer Bass: I don’t know.
Question: Well, let’s go to . . . the affidavits that you filed for charging the
crimes. And take a look at both of them, but in particular, the one
for public intoxication would seem to be most relevant.
Is there any reference to Mr. Greve holding a glass in any of
those affidavits?
Officer Bass: No.
To be sure, we do not decide questions of witness credibility on appeal, nor does the district court
do so at the summary-judgment stage of the proceedings. And it is possible that Officer Bass
might be more forthcoming when testifying at trial and a jury might believe him (in spite of the
likely impeachment arising from his deposition testimony). But at this stage, we must determine
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No. 18-6069, Greve v. Bass
whether disputes of fact are genuine, and we are loath to credit Officer Bass’s deposition testimony
about even undisputed issues, much less disputed issues.
The district court, on the other hand, considered this same evidentiary record—including
this same deposition testimony—and accepted Officer Bass’s version of several disputed material
facts in order to find probable cause and grant him summary judgment. Greve v. Bass, No. 3:16-
cv-0372, 2018 WL 4254650, at *4 (M.D. Tenn. Sept. 6, 2018). The first issue in this appeal
concerns the district court’s grant of summary judgment despite Greve’s claim that there remain
genuine disputes of material fact that should be submitted to a jury.
III.
The district court granted the defendants’ motions for summary judgment by finding that
Officer Bass had probable cause for Greve’s arrest and that Bulut and MSEG did not cause Greve’s
criminal prosecution. In finding probable cause, the district court said: “Here, the Court finds
Officer Bass detained [Greve] based on the reasonable suspicion that criminal activity had
occurred or was imminent based on the activated alarm, broken door handle, and [Greve’s]
standing outside the Club without an articulate reason to be at the Club. (Bass Depo. at 16).”
Greve, 2018 WL 4254650, at *4 (emphasis added). Whether Greve had “an articulate reason to
be at the Club” is not merely a material fact—particularly given the district court’s reliance on it—
it is the most disputed material fact of the entire case: Greve says that he told Bass that, while
working at the Event at the Club, he was locked out while his belongings remained inside the Club
and was waiting for someone to let him in to get his belongings, that he knew exactly where they
were located inside the Club, and that he could readily lead or direct Bass there. Greve’s
contention is that Bass refused to hear any of this, ignored all the exonerating facts and
circumstances (such as Greve’s waiting in the freezing cold while the alarm sounded and then
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No. 18-6069, Greve v. Bass
greeting Bass enthusiastically on arrival rather than fleeing the scene when the alarm sounded),
and undertook no investigation whatsoever. It is telling that, in recounting Greve’s version of
events, the district court began every sentence with the qualifier “Plaintiff argues” or “Plaintiff
asserts,” and then cited to Bass’s deposition for its determinative facts. Id. The only way to read
this is that the district court chose to decide the disputed facts for itself by crediting Bass’s
testimony over Greve’s testimony and improperly deciding the facts in a manner that favored Bass.
In finding that Bulut and MSEG had not instituted or caused Greve’s prosecution, the
district court found that: “summary judgment is appropriate for [Greve]’s malicious prosecution
claim because the record reflects Mr. Bulut simply provided an accounting of the facts within his
knowledge, in good faith to Officer Bass . . . [and] Bass acted on his own to determine whether or
not there should be a criminal prosecution.” Id. at *5. But the record does not reflect this inference
or determination, particularly when viewed in a manner favoring non-movant Greve.
When viewing the facts in the light most favorable to Greve, the record shows that Bulut
told the officers: (1) the Club closed at 10:00 p.m., at which time Bulut “personally saw all the
items and personnel out of the [Club]”; (2) any items left inside the Club belonged to “the
photography company,” which had “previously agreed to pick them up the next day”; (3) Bulut
did not recognize Greve and Greve was not authorized to be in the Club; and (4) Bulut wanted to
press charges against Greve. First, the timing of Bulut’s departure and lockup of the Club is
disputed: Greve testified that he, Kramer, and Rothrock were still loading equipment out of the
Club until approximately 1:00 a.m. when Bulut locked them out with their belongings still inside,
which is supported by Rothrock’s sworn statement that they were locked out of the Club sometime
after midnight. Second, whether Greve’s belongings were inside the Club is not disputed, as Jack
Gavin quickly found them the day after Greve’s arrest, precisely where Greve said they were
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located. Third, whether Bulut recognized Greve while Greve was sitting in the back of the patrol
car is disputed: at his deposition, Bulut testified that when he saw Greve in the patrol car he
“recognized him as being there [at the Club] that night.” This directly contradicts Officer Price’s
report that Bulut did not recognize Greve. Finally, Greve clearly disputes that Officer Bass “acted
on his own” without regard to Bulut. Even Bass testified that he did not know if he would have
had probable cause without Bulut’s statements. Again, the only way to read the district court’s
analysis of the facts is that it chose to decide the dispute itself (in a way that favored Bass and
Bulut) rather than view the facts in Greve’s favor, as is required.
Finally, in a footnote, the district court opined: “Because [Greve] admits to breaking the
door of the Club and was found by Officer Bass standing by the broken door, Officer Bass had
probable cause to arrest [Greve] for vandalism. However, given the Court’s other holdings herein,
this determination does not impact the outcome of this case.” Id. at *3 n.5 (citation omitted). But
Greve did not admit to breaking the door of the Club; he repeatedly denied it, claiming that the
handle was already broken and merely fell off. And Greve was not standing by the broken door
when Officer Bass arrived; nobody—not even Bass—ever asserted that. The district court
expressly excluded this from its decision, but it is further demonstration of the court’s willingness
to find—and even create—facts for itself when deciding summary judgment.
On summary judgment, it is improper for the district court to construe evidence and
testimony in a way that favors the moving party. See Baker, 936 F.3d at 529. Here, for whatever
reason, the district court went beyond that and constructed a version of events that even the moving
parties had not alleged. The district court’s grant of summary judgment was improper.
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IV.
Officer Bass invokes qualified immunity for the false-arrest and malicious-prosecution
claims. Qualified immunity shields government officials in the performance of discretionary
functions from standing trial for civil liability unless their actions violate clearly established rights
of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The plaintiff in a 42 U.S.C. § 1983 action against such an official bears the burden of overcoming
the qualified-immunity defense. Quigley v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013).
At the summary-judgment stage, the plaintiff must show that (1) the defendant violated a
constitutional right and (2) the right was clearly established. Id. at 680. At a minimum, this
requires evidence of a “genuine issue of fact”; that is, “evidence on which [a] jury could reasonably
find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
A.
Greve contends that Officer Bass acted without probable cause, thus violating his clearly
established right to be free from arrest or prosecution without probable cause. See Thacker v. City
of Columbus, 328 F.3d 244, 255 (6th Cir. 2003) (“[I]t is well established that any arrest without
probable cause violates the Fourth Amendment.”). “Moreover, the law has been clearly
established since at least the Supreme Court’s decision in Carroll v. United States, 267 U.S. 132,
162 (1925), that probable cause determinations involve an examination of all facts and
circumstances within an officer’s knowledge at the time of an arrest.” Radvansky v. City of
Olmsted Falls, 395 F.3d 291, 310 (6th Cir. 2005) (emphasis, editorial marks, and quotation marks
omitted). We have elaborated on this requirement repeatedly, to the effect that:
Probable cause exists if the facts and circumstances known to the officer warrant a
prudent man in believing that the offense has been committed. The inquiry depends
upon the reasonable conclusion to be drawn from the facts known to the arresting
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officer at the time of the arrest where supported by reasonably trustworthy
information.
No overly-burdensome duty to investigate applies to officers faced with the
prospect of a warrantless arrest. In initially formulating probable cause, they need
not investigate independently every claim of innocence. And after the officer
determines, on the basis of the facts and circumstances known to him, that probable
cause exists, the officer has no further duty to investigate or to search for
exculpatory evidence.
However, the initial probable cause determination must be founded on both the
inculpatory and exculpatory evidence known to the arresting officer, and the officer
cannot simply turn a blind eye toward potentially exculpatory evidence. In general,
the existence of probable cause in a § 1983 action presents a jury question, unless
there is only one reasonable determination possible.
Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007) (quotation marks and citations omitted;
paragraph breaks inserted); accord Courtright v. City of Battle Creek, 839 F.3d 513, 521 (6th Cir.
2016); Wesley v. Campbell, 779 F.3d 421, 429 (6th Cir. 2015); Radvansky, 395 F.3d at 305.
In Radvansky, 395 F.3d at 306-07, we questioned the officers’ claim of probable cause,
pointing out that they “received an unusual call[,] which was sufficient to put both officers on
notice that this was an atypical burglary situation”; they “ignored Radvansky’s repeated
protestations that he had a right to be on the premises”; and, “despite Radvansky’s repeated
statements about having possessions and furniture in the house, no police officer investigated this
claim.” Here, when Officer Bass responded to the alarm signaling a break-in at the Club, Greve,
who had been waiting in the cold, walked over to greet him, extended his hand for a handshake,
and introduced himself—this should have put Bass on notice that this was an atypical burglary
situation. Similarly, Bass ignored Greve’s protestations that he just needed someone to let him
into the Club so that he could retrieve his belongings and, despite his explanation that his
belongings were inside, no officer legitimately investigated that claim.
When the officers in Radvansky, 395 F.3d at 309, argued “that evidence of the forced entry
. . . was sufficient by itself to establish probable cause,” we held that it was “sufficient to create
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reasonable suspicion” and justify detention of “the suspect briefly to investigate the suspicious
circumstances,” but “the officers did not investigate any further.” “As a result, the reasonable
suspicion which justified their initial actions never matured to probable cause of wrongdoing,
which is necessary to support a full-fledged arrest.” Id. at 310. Here, Officer Bass did not even
have the quantity or quality of reasonable suspicion that had justified the suspect’s detention in
Radvansky: Bass responded to a dispatch, heard an alarm sounding from within building, and
encountered an eager potential witness in Greve. Bass immediately detained Greve, before he
observed the broken door handle, questioned Greve, or even determined what was going on. Even
in his post-hoc explanation at his deposition, Bass’s reasons for the detention were dubious or—
as with the claim that “I believe he had a glass in his hand”—suspiciously contrived. But even if
we assume that Bass had reasonable suspicion to detain Greve initially, he never investigated at
all the potentially exculpatory evidence or explanation that Greve had explicitly called to his
attention, so that suspicion could not mature into probable cause for arrest.
In Logsdon, 492 F.3d at 342, we questioned the claim of probable cause and criticized the
officer because, “[u]pon arriving at the scene, [Officer] Hains refused to listen to an eyewitness
account of the incident.” Here, where Greve was the only eyewitness to the events before Officer
Bass’s arrival, Bass refused to listen to Greve’s explanation of the circumstances. In fact, he
refused to listen to anything Greve had to say, even his self-introduction. Had Bass asked Greve
to produce identification, Greve would have explained—again—that his wallet was locked inside
the Club, along with his other belongings, thus causing his predicament.
In Wesley, 779 F.3d at 431, we explained that “the implausibility of a witness’s accusations
is also germane to determining the existence of probable cause.” Here, the only witness accusation
was Bulut’s claim that he did not recognize Greve, which, if not implausible, was certainly
16
No. 18-6069, Greve v. Bass
irreconcilable with Greve’s explanation, had anyone listened to it. That is, Greve certainly
recognized Bulut and, had Greve been asked or permitted to speak, he would have identified Bulut
by name and that Bulut was the Club’s night manager who had locked him out. Moreover, the
attempted-burglary theory itself was implausible: supposedly Greve either failed to get inside the
Club or, alternatively, went inside the Club and stole only a tablecloth; then, while the alarm
sounded, he wrapped himself in the tablecloth and waited outside in freezing temperatures for a
police officer to arrive; then he greeted the responding officer enthusiastically with a handshake
and an introduction.
In Courtright, 839 F.3d at 522, we explained that “we ha[d] not found any precedential
case in which we concluded that a phone call, without any corroborating information, provided
probable cause for arrest.” Here, Officer Bass did not even have a complaining witness or an
accusation; Officer Bass responded to a dispatch and seized, detained, and arrested the first person
he encountered at the scene, without considering the circumstances, listening to that person’s
(Greve’s) explanation, or conducting any further investigation into the situation. As it happens,
Greve knew how the alarm had been set off (and who did it) and was waiting outside the Club in
the hope that someone would arrive who could let him in to get his belongings. But Bass did not
know that and, in fact, refused to know. Had it been someone other than Greve standing outside
the Club—e.g., a distressed victim from another crime, Jack Gavin responding to Greve’s voice
mails, Bulut or another Club manager, or even a federal judge—Officer Bass, under his theory of
probable cause, would have seized, detained, and arrested that person without considering the
circumstances, listening to any explanation, or conducting any further investigation. That is the
antithesis of probable cause.
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No. 18-6069, Greve v. Bass
To be clear, it is not farfetched to speculate that a suspicious officer would have—after
establishing that Greve was not at physical risk from the cold—asked Greve some questions, such
as: “Why are you here and what’s going on?”, “Do you have any identification?”, “If you didn’t
break the door handle and set off the alarm, do you know who did?”, “Is there anyone inside?”,
“Is there anyone who can confirm your story?”, “The manager says he doesn’t recognize you—do
you recognize him?” But we do not imply that Officer Bass was required to ask such questions or
that his failure to do so necessarily violated Greve’s rights. Rather, we hold that, in deciding
whether he had probable cause to arrest (and recommend prosecution of) Greve, Bass was required
to consider all of the facts and circumstances readily and reasonably within his knowledge, see
Radvansky, 395 F.3d at 310; Logsdon, 492 F.3d at 341, and that his failure—actually refusal—to
do so in this case, if proved at trial, would be a violation of Greve’s rights.
B.
Officer Bass argues that the reviewing judge’s after-the-fact endorsement of his arrest-
warrant affidavits establishes that he had probable cause. We disagree. Simply put, an after-the-
fact determination, be it by warrant or indictment, does not pro forma “serve to validate a prior
arrest.” Radvansky, 395 F.3d at 307 n.13 (citing cases). Moreover, “[p]olice officers cannot, in
good faith, rely on a judicial determination of probable cause when that determination was
premised on an officer’s own material misrepresentations to the court.” Gregory, 444 F.3d at 758;
see also Sykes, 625 F.3d at 310 n.8. Greve contends that Bass made material misrepresentations
in the warrant affidavits and, regardless of whether Greve is correct, as we have already explained,
Greve has created a genuine dispute of material fact on this question, which settles this in his favor.
18
No. 18-6069, Greve v. Bass
C.
Officer Bass argues that the Supreme Court’s recent opinion in District of Columbia v.
Wesby, 583 U.S. - -, 138 S.Ct. 577 (2018), overcomes our precedent or has changed the law. We
disagree. The Court in Wesby considered whether police officers responding to partying and loud
music at a vacant home had probable cause to arrest the partygoers, and whether the officers were
entitled to qualified immunity because they “reasonably but mistakenly conclude[d] that probable
cause [wa]s present.” Id. at 591. Officer Bass emphasizes the Court’s conclusion that “[t]here
was no controlling case holding that a bona fide belief of a right to enter defeats probable cause,
that officers cannot infer a suspect’s guilty state of mind based on his conduct alone, or that officers
must accept a suspect’s innocent explanation at face value.” Id. at 593.
But Wesby is distinguishable. The Wesby Court stressed that “probable cause deals with
probabilities and depends on the totality of the circumstances,” id. at 586 (quotation marks and
citations omitted, emphasis added), and pointed to the partygoers’ “reaction to the officers” as a
basis for the officers to believe that the partygoers knew that they had no right to be in the house:
“A reasonable officer could infer that the partygoers’ scattering and hiding was an indication that
they knew they were not supposed to be there.” Id. at 587. Greve, on the other hand, did nothing
overtly incriminating. Quite the contrary, Greve waited near the Club’s entrance, in the frigid
cold, for the police—or someone, anyone—who could let him inside. And, despite the sounding
security alarm and the broken door handle—Greve enthusiastically approached and greeted Officer
Bass’s arrival, introducing himself and making every effort to explain what had occurred.
But even if our facts were on point, Wesby emphasized that we review the officer’s
probable cause determination under the totality of the circumstances, not by looking at each fact
“standing alone.” Id. at 588. Officer Bass would have us consider only his preferred facts and
19
No. 18-6069, Greve v. Bass
disregard the rest, ignoring the totality of the other circumstances, such as Greve’s proffered
explanation and attempt to cooperate. But Wesby emphatically rejected such an approach:
First, the panel majority viewed each fact in isolation, rather than as a factor in the
totality of the circumstances. This was mistaken in light of our precedents. The
totality of the circumstances requires courts to consider the whole picture. Our
precedents recognize that the whole is often greater than the sum of its parts—
especially when the parts are viewed in isolation. Instead of considering the facts
as a whole, the panel majority took them one by one. . . .
Second, the panel majority mistakenly believed that it could dismiss outright any
circumstances that were susceptible of innocent explanation. . . . But probable cause
does not require officers to rule out a suspect’s innocent explanation for suspicious
facts. As we have explained, the relevant inquiry is not whether particular conduct
is innocent or guilty, but the degree of suspicion that attaches to particular types of
noncriminal acts. Thus, the panel majority should have asked whether a reasonable
officer could conclude—considering all of the surrounding circumstances,
including the plausibility of the explanation itself—that there was a substantial
chance of criminal activity.
. . . The panel majority identified innocent explanations for most of the[]
circumstances in isolation, but again, this kind of divide-and-conquer approach is
improper. A factor viewed in isolation is often more readily susceptible to an
innocent explanation than one viewed as part of a totality. And here, the totality of
the circumstances gave the officers plenty of reasons to doubt the partygoers’
protestations of innocence.
Id. at 588-89 (quotation marks and citations omitted). Thus, in Wesby, the individual facts were
“susceptible to innocent explanation,” whereas the totality of facts and circumstances supported a
finding “that there was a substantial chance of criminal activity.” Id. Here, even the individual
facts did not demonstrate probable cause, but supposing some of them had, we would nonetheless
be left with the inescapable conclusion that the totality of facts and circumstances did not
reasonably support a substantial likelihood that Greve had committed a crime.
A correct application of Wesby neither affects our precedent nor changes our analysis.
Officer Bass’s refusal to consider the totality of facts and circumstances undermines his contention
20
No. 18-6069, Greve v. Bass
that he had probable cause to arrest Greve. That refusal, if proven at trial, would be a violation of
Greve’s rights.
V.
Bulut and MSEG claim that Greve’s evidence cannot satisfy the elements of malicious
prosecution under Tennessee state law because they did not “institute” the prosecution.
Under Tennessee law, a person who procures a third person to institute criminal
proceedings against another may be liable for malicious prosecution as if he had
actually initiated the proceedings. . . . [W]hile it is not necessary that a person
actually swear out the warrant to be liable for malicious prosecution, something
more than merely giving information must be shown.
With respect to the giving of information, . . . one who causes another’s prosecution
by false statements or misrepresentations may be liable for malicious prosecution,
even if he does not file a complaint or actually procure the prosecution. On the
other hand, when a person discloses in good faith all facts within his knowledge
having a material bearing on the question of the guilt of the person suspected and
leaves it to the officer to act entirely on his own judgment and responsibility as a
public officer as to whether or not there shall be a criminal prosecution, he is not
liable in an action for malicious prosecution.
Trice v. McEachen, 772 F. Supp. 2d 903, 912-13 (M.D. Tenn. 2011) (quotation marks, editorial
marks, citations, and footnotes, and emphasis omitted).
Greve contends that, while he sat in the police car, it was Bulut who “instituted” the
prosecution against him by instructing Officer Bass that he (and the Club) wanted to press charges
for attempted burglary. Moreover, once the prosecution was underway, MSEG was fully aware
of Greve’s innocence based on evidence in its exclusive possession—namely, the surveillance
video—but deliberately refused to help Greve by sharing that exonerating evidence.
During discovery, Sean Austin, the Club’s General Manager, said he was powerless to help
Greve, but had turned the matter over to his superiors. And Bulut testified that he attended a
management meeting at which those superiors discussed the matter. But Daniel Leverett, MSEG’s
Rule 30(B)(6) witness and one of two principals in the MSEG corporation, testified that he was
21
No. 18-6069, Greve v. Bass
not told about the incident until Greve filed this lawsuit two years later. On whole, there is no
evidence that anyone at MSEG took any action to reveal Greve’s innocence, despite their
knowledge of it.
More to the point, there is evidence that Bulut instructed Officer Bass that he (and, at least
by implication, the Club) wanted to prosecute Greve, including Bass’s initial arrest report that
named Bulut as the prosecutor; Bass testified that he was unsure if he would have had probable
cause to pursue prosecution of Greve without Bulut; and there is no evidence that anyone at MSEG
ever told the police or prosecutor that they did not want to prosecute Greve or revealed that they
knew Greve was innocent based on their surveillance video.
We cannot conclude at this stage of the proceedings that Bulut or MSEG had “disclose[d]
in good faith all facts within [their] knowledge having a material bearing on the question of the
guilt of the person suspected.” See Trice, 772 F. Supp. 2d at 913. Therefore, a jury could find
from the evidence available that Bulut and/or MSEG instituted and furthered the prosecution of
Greve so as to hold them liable for malicious prosecution. Summary judgment is inappropriate.
VI.
For the foregoing reasons, we REVERSE the judgment of the district court and REMAND
for further proceedings consistent with this opinion.
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No. 18-6069, Greve v. Bass
GRIFFIN, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority opinion that the district court erred by granting summary
judgment in favor of defendants Bulut and MSEG with respect to the claims for malicious
prosecution under Tennessee law. However, I respectfully dissent regarding the reversal of the
grant of summary judgment in favor of Officer Bass. In my view, Bass had reasonable suspicion
to initially detain Greve and probable cause to arrest him. I would therefore affirm the grant of
summary judgment in favor of Bass on the basis of qualified immunity.
I.
The majority abruptly concludes that Officer Bass did not have reasonable suspicion to
initially detain Greve.1 I disagree.
Reasonable suspicion is not a demanding standard. It “requires more than just a ‘mere
hunch,’ but is satisfied by a likelihood of criminal activity less than probable cause, and ‘falls
considerably short of satisfying a preponderance of the evidence standard.’” Smoak v. Hall,
460 F.3d 768, 778 (6th Cir. 2006) (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)). An
officer simply must have “a ‘particularized and objective basis’ for suspecting legal wrongdoing.”
United States v. Ellis, 497 F.3d 606, 613 (6th Cir. 2007) (quoting Arvizu, 534 U.S. at 273).
We look at the totality of the circumstances to determine whether an officer had reasonable
suspicion to conduct a Terry stop. Id. This requires “determin[ing] whether the individual factors,
taken as a whole, give rise to reasonable suspicion, even if each individual factor is entirely
consistent with innocent behavior when examined separately.” United States v. Smith, 263 F.3d
571, 588 (6th Cir. 2001). “Pertinent circumstances include the officer’s own direct observations,
1
Thus, the majority opinion seems to implicitly (and correctly) reject Greve’s argument that his initial
detention was actually an arrest, which would require a showing of probable cause. See Brown v. Lewis, 779 F.3d
401, 414 (6th Cir. 2015).
23
No. 18-6069, Greve v. Bass
dispatch information, directions from other officers, and the nature of the area and time of day
during which the suspicious activity occurred.” United States v. Campbell, 549 F.3d 364, 371 (6th
Cir. 2008). We also “must bear[ ] in mind that officers are permitted ‘to draw on their own
experience and specialized training to make inferences from and deductions about the cumulative
information available to them.’” Green v. Throckmorton, 681 F.3d 853, 860 (6th Cir. 2012)
(quoting Ellis, 497 F.3d at 613).
A.
Officer Bass had reasonable suspicion that Greve had committed the crime of public
intoxication, a charge that the majority opinion barely mentions. In Tennessee, public intoxication
occurs when a person “appears in a public place under the influence of a controlled substance,
controlled substance analogue or any other intoxicating substance to the degree that [t]he offender
may be endangered; [t]here is endangerment to other persons or property; or [t]he offender
unreasonably annoys people in the vicinity.”2 Tenn. Code Ann. § 39-17-310(a).
Upon encountering Greve, Bass “observed [Greve] to have watery, bloodshot eyes and the
odor of alcohol about his person.” These are classic indicators of alcohol intoxication. State v.
Montgomery, 462 S.W.3d 482, 488 (Tenn. 2015); see State v. Bell, 429 S.W.3d 524, 532–34 (Tenn.
2014) (collecting and discussing cases in DUI context). Moreover, Bass found Greve in an
alleyway (i.e., a public place) outside an establishment that serves alcoholic beverages, further
strengthening the suspicion that Greve was intoxicated. And Greve does not dispute these facts;
2
“‘Public place’ means a place to which the public or a group of persons has access and includes, but is not
limited to, highways, transportation facilities, schools, places of amusement, parks, places of business, playgrounds
and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed
for actual residence. An act is deemed to occur in a public place if it produces its offensive or proscribed consequences
in a public place.” Tenn. Code Ann. § 39-11-106(a)(31).
24
No. 18-6069, Greve v. Bass
he testified at his deposition that he drank five alcoholic beverages earlier in the evening—“Bud
Lights and some wine towards the end of the night.”
Greve’s presence outside, alone, inadequately dressed for the cold weather, and wearing a
tablecloth for warmth, indicated that he “may be endangered” on account of his intoxication. Tenn.
Code Ann. § 39-17-310(a). “[W]hile most people can be expected to navigate cold weather to find
an indoor shelter, an intoxicated person may lack this capacity.” Gladden v. Richbourg, 759 F.3d
960, 966 (8th Cir. 2014). “Weather that would not be dangerous to a properly dressed and sober
individual can become dangerous when that person is intoxicated.” United States v. Gilmore, 776
F.3d 765, 772 (10th Cir. 2015). This is especially so if the intoxicated person is by himself. Again,
Greve admits that he was alone, that it was cold outside, that he himself was cold, and that he
wrapped himself in a tablecloth.
These facts establish that reasonable suspicion supported Greve’s detention in the back of
a squad car while Officer Bass investigated whether Greve had committed the crimes of public
intoxication or attempted burglary. If reasonable suspicion for one offense exists, “it does not
matter that the officer was motivated by a belief that a different offense (even one for which there
was not reasonable suspicion) had been committed.” United States v. Winters, 782 F.3d 289, 303
(6th Cir. 2015) (citation omitted); see Whren v. United States, 517 U.S. 806, 812–13 (1996). An
officer’s investigation for that offense need only “be ‘reasonably related in scope’ to the factual
basis underlying the finding of reasonable suspicion.” Winters, 782 F.3d at 304 (quoting Terry v.
Ohio, 392 U.S. 1, 20 (1968)). Here, the circumstances indicated that the two suspected offenses—
public intoxication and attempted burglary—occurred in the same location and during the same
time period, which satisfies this standard. Cf. id. at 303–04 (“An officer who pulls over and
questions an erratic driver whom he reasonably believes to be intoxicated, for example, cannot, on
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No. 18-6069, Greve v. Bass
that basis alone, investigate the driver for securities fraud.”). Thus, whether Officer Bass
reasonably suspected Greve of attempted burglary at the time of the investigative detention is only
one part of the analysis here. The majority opinion fails to acknowledge this precedent and offers
no explanation for why it should not apply in this case.
B.
Irrespective of the public intoxication charge, Officer Bass had reasonable suspicion that
Greve had committed the crime of attempted burglary. For our purposes here, attempted burglary
in Tennessee occurs when a person, “without the effective consent of the property owner,” attempts
to enter “a building other than a habitation (or any portion thereof) not open to the public, with
intent to commit a felony, theft or assault.” Tenn. Code Ann. § 39-14-402(a); see Tenn. Code
Ann. § 39-12-101.
Officer Bass arrived at the scene because a burglary alarm had sounded at the club. In the
context of a warrantless search of a home, we have noted that “a recently activated burglar alarm
is particularly pertinent to the probable cause determination.” United States v. Brown, 449 F.3d
741, 749 (6th Cir. 2006). That’s true for the reasonable suspicion analysis here, too. After all,
“[t]he purpose of a security alarm is to alert police to problems so they can quickly respond to the
premises.” Id. Courts have long recognized that a security alarm going off is a relevant indicator
that a burglary may be in progress or recently completed. See Crock v. Pennsylvania, 397 F. App’x
747, 749 (3d Cir. 2010); United States v. Cohen, 481 F.3d 896, 899 (6th Cir. 2007) (discussing
United States v. Moore, 817 F.2d 1105, 1106 (4th Cir. 1987)); United States v. McCullough, 457
F.3d 1150, 1164 (10th Cir. 2006); United States v. Tibolt, 72 F.3d 965, 970 (1st Cir. 1995). Persons
who have permission to access a building or vehicle generally know how to do so without setting
off its burglary alarm.
26
No. 18-6069, Greve v. Bass
Additionally, the incident occurred at two o’clock in the morning. Such a “late hour can
contribute to reasonable suspicion.” United States v. Blair, 524 F.3d 740, 751 (6th Cir. 2008).
This has special import for the charge of burglary, which was defined at common law to only occur
“in the nighttime.” Taylor v. United States, 495 U.S. 575, 580 n.3 (1990). In this case, it was so
late that the club was closed to the public. And when Officer Bass arrived, he found Greve, who
was the only person around, in an alleyway near the premises. Upon first encountering Officer
Bass, Greve “told him that the door had fell off when [Greve] went to pull on it.” Greve’s
deposition makes clear that he made this statement—admitting to attempting to gain entry into the
building—before Officer Bass detained him. Thus, the majority’s statement that “Bass
immediately detained Greve, before he observed the broken door handle, questioned Greve, or
even determined what was going on” is incorrect.
To summarize, a police officer responding to a burglary alarm at two o’clock in the
morning arrived at a dark, desolate, locked nightclub to find a single person there, who admitted
to attempting to enter the premises. In my view, these facts satisfy the low bar of reasonable
suspicion.
II.
Officer Bass had probable cause to arrest Greve on the charge of attempted burglary.
“Probable cause is a reasonable ground for belief supported by less than prima facie proof but
more than mere suspicion.” United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008). “Whether
probable cause exists depends upon the reasonable conclusion to be drawn from the facts known
to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).
It “does not require the same type of specific evidence of each element of the offense as would be
needed to support a conviction.” Crockett v. Cumberland Coll., 316 F.3d 571, 582 (6th Cir. 2003)
27
No. 18-6069, Greve v. Bass
(quoting Adams v. Williams, 407 U.S. 143, 149 (1972)). A probable cause determination “must
be founded on both the inculpatory and exculpatory evidence known to the arresting officer,”
Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007) (emphasis, citation, and internal quotation
marks omitted), and must be supported by “reasonably trustworthy information,” Beck v. Ohio,
379 U.S. 89, 91 (1964). “No overly-burdensome duty to investigate applies to officers faced with
the prospect of a warrantless arrest. In initially formulating probable cause, they need not
investigate independently every claim of innocence.” Logsdon, 492 F.3d at 341 (citation and
internal quotation marks omitted).
The most important factor in support of probable cause here is Oleg Bulut’s statement to
Officer Bass. As the majority opinion recounts,
Bulut told the officers: (1) the Club closed at 10:00 p.m., at which time Bulut
“personally saw all the items and personnel out of the [Club]”; (2) any items left
inside the Club belonged to “the photography company,” which had “previously
agreed to pick them up the next day”; (3) Bulut did not recognize Greve and Greve
was not authorized to be in the Club; and (4) Bulut wanted to press charges against
Greve.
As it turns out, these statements were largely false. But Bass did not know that at the time. At the
scene, they provided strong evidence that Greve’s attempted entry into the building was
unauthorized, and also directly contradicted Greve’s statements that he knew Bulut and had a
legitimate reason to be at the club.
The cases the majority opinion cites do not support its conclusion that probable cause was
lacking here. First, in Radvansky, the police officers had much more information indicating that
Radvansky had a right to be on the premises (the house at which he was renting a room), separate
and apart from his own statements. Radvansky v. City of Olmsted Falls, 395 F.3d 291 (6th Cir.
2005). They “knew the following five facts” before responding to the call:
28
No. 18-6069, Greve v. Bass
(i) that there was a dispute between the homeowner and someone who had lived at
the residence; (ii) the dispute was over money and the right to live there; (iii) the
person still had furniture and personal possessions in the house; (iv) the person had
brazenly attempted to break into the house the night before; and (v) the same person
had returned on this night.
Id. at 306. And once they arrived at the scene, the officers “dismissed the undisputed documentary
evidence which corroborated Radvansky’s claim.” Id. The driver’s license the officers found in
Radvansky’s wallet listed the house’s address as his residence, the police dispatcher told the
officers that a search of Radvansky’s social security number returned his name and that same
address, and a “police print-out also reflected Radvansky’s address as the same.” Id. at 307.
Radvansky attempted to show the officers a note written by his landlord stating that Radvansky
owed him rent, but “[t]he officers refused to look at it.” Id. at 306.
By contrast, before responding to the call here, Officer Bass had no prior knowledge about
Greve’s work at the club earlier in the evening, and was presented with no “undisputed
documentary evidence” at the scene corroborating Greve’s story. Greve told Bass that his
belongings were still inside the club, but Bass did not “refuse to look at” them. Nor did he refuse
to look for them. When the officers walked through the inside of the club, Bass testified that he
was looking for “a backpack,” while Sergeant Keeler testified that he was looking for a “bag, or
something like that, that didn’t belong [there and] was noticeable to [Bulut].” But at his deposition,
Greve described the bag as a “camera bag . . . about the size of a pro football.” Greve’s statement
that his belongings were inside is different in kind from the multiple sources of physical evidence
the officers in Radvansky had literally in front of their faces and chose to ignore.
The majority opinion also cites Logsdon because the officer in that case “refused to listen
to an eyewitness account of the incident.” 492 F.3d at 342. But critically, the witness there was
not the person suspected of criminal wrongdoing. See id. at 338. As discussed above, Officer
29
No. 18-6069, Greve v. Bass
Bass already had reasonable suspicion that Greve had engaged in criminal activity, and Bass did
credit the statements of the only eyewitness who was not a criminal suspect: Oleg Bulut. Indeed,
it is still unclear why Bulut chose to lie to the officers. “Once probable cause is established, an
officer is under no duty to investigate further or to look for additional evidence which may
exculpate the accused.” Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir. 1999). “In fact, law
enforcement is under no obligation to give any credence to a suspect’s story or alibi nor should a
plausible explanation in any sense require the officer to forego arrest pending further investigation
if the facts as initially discovered provide probable cause.” Id. (brackets, citation, and internal
quotation marks omitted). Here, Bulut’s statement, combined with the facts discussed above—
like the damage to the building and Greve’s admission that he had attempted to enter the
premises—provided probable cause to arrest Greve. Bass was not required to investigate further
once probable cause was established.
Finally, the majority opinion cites Wesley for the proposition that “the implausibility of a
witness’s accusations is also germane to determining the existence of probable cause.” Wesley v.
Campbell, 779 F.3d 421, 431 (6th Cir. 2015). But the mere fact that Bulut’s statements conflicted
with Greve’s story does not make those “allegations . . . unlikely.” Id. And the odd theory of
burglary the majority spells out does not come close to being “implausible,” especially given
Bass’s knowledge of Greve’s intoxication. Intoxication often leads to unusual behavior.
Ultimately, the majority faults Officer Bass for not crediting the story of a visibly
intoxicated man wrapped in a tablecloth over the club manager who had no apparent reason to lie.
Bulut (and his employer, via respondeat superior liability) should be made to answer for his false
statements and his decision to press charges against a man he knew had reason to be at the club.
The police officer who relied on those statements in good faith should not.
30
No. 18-6069, Greve v. Bass
III.
For the reasons discussed above, I respectfully concur in part and dissent in part.
31