Price v. Sery , 513 F.3d 962 ( 2008 )

FISHER, Circuit Judge,

concurring in part, dissenting in part and concurring in the judgment:

No decision is more important or difficult in police officers’ performance of their duties than whether to resort to the use of deadly force against a suspect, and none has such catastrophic consequences for the target of such force. The majority brings a degree of clarity to the law of deadly force, but I fear that some of its analysis may confuse the issue, and I therefore cannot adopt all of its reasoning as I shall explain. The practical impact of rank-and-file police officers’ understanding of what the Fourth Amendment deadly force standard requires is quite literally a matter of life or death, both for officers and for the public, and we need to give law enforcement the clearest directives possible. I also write separately to dissent from the majority’s affirmance of summary judgment for the City of Portland on Price’s claim that it failed to train its police officers properly.

I.

The need for clarity in articulating the standard for use of deadly force is illustrated graphically — perhaps tragically, if Price’s theory of what resulted in Officer Sery’s fatal shooting of James Perez proves correct — by the Portland Police Bureau’s (“PPB”) apparent misunderstanding of the deadly force policy at issue here. Amplifying the majority’s factual summary of the contextual background makes this need even more obvious.

A.

On March 28, 2004, Perez was driving in North Portland when he failed to properly signal a right turn into a strip mall. Portland Police Officers Sery and Sean Ma-comber had been tailing Perez in their patrol car because Perez’s car, age and nervousness aroused their suspicions that he might be involved in illegal drug activity. They followed Perez into the parking lot, turned on their car’s overhead lights and parked behind him. Twenty-four seconds later Officer Sery, who had approached the car from the driver’s side, shot Perez through the open driver’s side window, killing him.

What happened during this brief period is subject to dispute. The officers testified that Perez had been resistant when they asked him for identification and that when they tried to physically subdue him he reached into his pocket and began digging for something. Officer Sery claims that he fired his gun only after Perez failed to follow repeated commands to show his hands and after it appeared that Perez had pulled something from his pocket. Several eyewitnesses told a radically different story, in which the officers approached Perez’s car with guns drawn and Perez complied with the officers’ instructions. One eyewitness further testified that Perez did not put his hands in his pockets at all, and instead put his right hand in the air while attempting to unbuckle his seatbelt with his left hand to comply with the officers’ instructions to exit the car. It is undisputed that Perez’s seatbelt was still buckled when he was shot and that he was unarmed.

B.

Because it is central to our disposition of the case, I repeat PPB General Order (“G.O.”) § 1010.10’s specific language below:

The Bureau recognizes that members may be required to use deadly force when their life or the life of another is jeopardized by the actions of others. Therefore, state statute and Bureau policy provide for the use of deadly force under the following circumstances:

a. Members may use deadly force to protect themselves or others from what they reasonably believe to be an immediate threat of death or serious physical injury.

b. A member may use deadly force to effect the capture or prevent the escape of a suspect where the member has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the member or others.

c. If feasible, some warning has been given.

Members must be mindful of the risks inherent in employing deadly force. A member’s reckless or negligent use of deadly force is not justified in this policy or State statute. Members are to be aware that this directive is more restrictive than state statutes.

G.O. § 1010.10 (emphasis added) (hereinafter “the PPB Policy”).¹

Police Chief Foxworth indicated that he interpreted this policy to mean that the “reasonable belief’ required to shoot an attacking suspect was a “less specific and demanding” standard than the “probable cause” required to shoot a fleeing suspect. He understood probable cause to mean a level of confidence of “more likely than not,” which others might “describe [ ] as 51 percent versus 49 percent.” Although he thought reasonable belief was “pretty close

... if not the same,” when asked if “there’s some difference in the amount of confidence that the officer needs to have before using deadly force for self-defense ... that that’s a slightly different standard than the probable cause standard where someone is escaping,” he responded that “I believe that, yes, there is. I believe they’re close, but I believe there is a difference.” (Emphasis added.).

1. The objective reasonableness standard

The crux of this case is what the Fourth Amendment’s objective reasonableness standard requires before an officer may resort to deadly force. The majority frames this issue as presenting two questions: First, is there a legal distinction under the Fourth Amendment between the “probable cause” and “reasonably believe” formulations? Second, insofar as the City and PPB understood and applied the PPB Policy in practice, was there an actual distinction between these formulations, one that encouraged or tolerated police officers’ using deadly force when it was objectively unreasonable to do so? I generally agree with the majority’s conclusions that the policy as written can be construed to be constitutional, but that in practice it might have been understood to allow constitutionally impermissible uses of deadly force. I am concerned, however, that the majority’s opinion could be read to describe incorrectly what is embodied in the Fourth Amendment’s objective reasonableness standard.

I agree with the majority that an officer’s use of deadly force is justified only if the totality of the circumstances support an “objective[ly reasonable] belief that an imminent threat of death or serious physical harm” exists. Op. at 969. In Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the Supreme Court formulated the objective reasonableness standard in the deadly force context in terms of probable cause, holding that it “may not be used ... unless the officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others.” Id. at 3, 105 S.Ct. 1694. Since then, we have often distinguished the deadly force context by using the probable cause formulation instead of the more general reasonableness standard articulated for the non-deadly force context in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Typical of this distinction is Fikes v. Cleghorn, 47 F.3d 1011(9th Cir.1995), which noted that:

While the use of “force” is reasonable under the Fourth Amendment if it would seem justified to a reasonable police officer in light of the surrounding circumstances, the use of “deadly force” is only justified if the officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others.

Id. at 1014 n. 2 (Leavy, J.) (citing Garner) (emphasis added); see also Brewer v. City of Napa, 210 F.3d 1093, 1098 (9th Cir.2000) (O’Scannlain, J.) (stating that “probable cause” is “a more specific and demanding standard” than the more general reasonableness standard applied in non-deadly force cases);² Vera Cruz v. City of Escondido, 139 F.3d 659, 661 (9th Cir.1997) (noting that “Gamer established a special rule concerning deadly force”), overruled on other grounds by Smith v. City of Hemet, 394 F.3d 689 (9th Cir.2005) (en banc); Quintanilla v. City of Downey, 84 F.3d 353, 357 (9th Cir.1996) (“Gamer and Graham set forth somewhat different standards for proving a Fourth Amendment excessive force violation. The Garner standard ... can apply only when deadly force has been used.”) (internal citations omitted).³

The majority’s reading of the Supreme Court’s most recent pronouncement on the use of deadly force in Scott v. Harris, — U.S. —, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), however, introduces some uncertainty about this longstanding emphasis on the special nature of the use of deadly force. See, e.g., Op. at 986, 970-71.⁴ The majority summarizes its understanding of Scott as follows:

The Supreme Court very recently confirmed and clarified this analysis of the relationship between Garner, Graham, and the Fourth Amendment’s reasonableness requirement in Scott v. Harris, — U.S. —, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). In considering the reasonableness of a police officer’s use of likely deadly force to end a high-speed car chase, the Court noted that “Gamer did not establish a magical on/ off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’ Gamer was simply an application of the Fourth Amendment’s ‘reasonableness’ test to the use of a particular force in a particular type of situation.” Id. at 1777(citing Graham, 490 U.S. at 388, 109 S.Ct. 1865). The Court went on to state that “[wjhether or not [the police officer’s] actions constituted application of ‘deadly force,’ all that matters is whether [the officer’s] actions were reasonable.” Id. at 1778 (emphasis added).

Op. at 968.

I am troubled by the majority’s special emphasis on the phrase: “all that matters is whether [the officer’s] actions were reasonable.” By emphasizing this one passage, the majority risks being read as incorrectly expanding the Court’s holding in Scott, and removing from the reasonableness equation in deadly force cases the well-established requirement that the suspect must reasonably be thought to pose a threat of death or serious injury.⁵ I understand the majority has no intent to do so, given its later statement that:

We are satisfied that our case law does not support Price’s contention that “reasonable belief’ is a lesser standard than “probable cause” as a matter of law. Both standards are objective and turn upon the circumstances confronting the officer rather than on the officer’s mere subjective beliefs or intentions, however sincere. Our case law requires that a reasonable officer under the circumstances believe herself or others to face a threat of serious physical harm before using deadly force. Moreover, as the Supreme Court clarified in Scott, the touchstone of the inquiry is “reasonableness,” which does not admit of an “easy-to-apply legal test.” 127 S.Ct. at 1777-78. The City’s policy requires that an officer have a reasonable belief in an “immediate threat of death or serious physical injury ” and thus comports with the requirement.

Op. at 970-71 (emphasis added).

There can be no doubt that Scott was not abandoning Gamer’s prescription that a critical component of the reasonableness standard in deadly force situations is whether the officer has “an objective belief that an imminent threat of death or serious physical harm” exists. Garner, 471 U.S. at 3, 105 S.Ct. 1694(emphasis added). The Court extensively discussed the facts of the ear chase and the high risk of danger that the fleeing suspect’s high speed, evasive driving posed to others. See Scott, 127 S.Ct. at 1775-76. Plainly, the “reasonableness” inquiry the Court envisions continues to encompass the well-established constitutional principle that resort to deadly force is only justified “to prevent ‘serious physical harm, either to the officer or others.’ ” Id. at 1777 n. 9 (quoting and explaining Gamer ).⁶

It is important that this fundamental prerequisite to the use of deadly force not be watered down or made ambiguous. Police officers need to have clear guidelines about the use of deadly force, as this case illustrates. In the aftermath of a fatal shooting, a court or jury must “slosh through the factbound morass of reasonableness.” Id. at 1778. However, the officer in the field must have a clear set of guidelines that he or she can be taught to invoke instinctively when confronted with a potentially dangerous situation, when the awful decision of whether to shoot someone dead might have to be made in split seconds that do not allow for much, if any, “sloshing” and where the wrong choice can result in the death of an actually harmless, even innocent suspect. For this reason, I underscore Scott’s emphasis in its reasonableness analysis on the nature of the danger that justified deadly force in that case. And I concur in my colleagues’ articulation of the objective reasonableness standard with the understanding that it continues to incorporate this dangerousness element.

I am also quite troubled by the majority’s curious suggestion that the amount of “confidence” the officer has in his belief that the requisite threat exists, Op. at 968, or the “quantum of evidence” supporting it, Op. at 969-70, has no relevance in the Fourth Amendment analysis of reasonableness. I disagree.

An officer must have a sufficient basis for and confidence in his or her belief that the suspect really does pose a imminent threat of death or serious physical injury. As the majority acknowledges, it is not enough that the officer idiosyncratically apprehends a threat to be real. Op. at 969. Plainly, if an officer’s fears rest on the flimsiest of grounds, then not even the sincerest conviction that only deadly force can avert an otherwise inevitable calamity will justify its use. The officer must have a reasonable belief, not just a belief, in the existence of that threat. Thus, we must be clear that the objective reasonableness analysis takes into account both the nature of the perceived threat and the soundness of the officer’s basis for making that assessment.

My concurrence is therefore directly conditioned on the understanding that reasonable belief in the deadly force context does not water down the degree of reliability and confidence that has been inherent in the traditional probable cause formulation. See United States v. Gorman, 314 F.3d 1105, 1111 (9th Cir.2002) (“We now hold that the ... reasonable belief! ] standard ... embodies the same standard of reasonableness inherent in probable cause.”). Only if the officer’s beliefs are objectively reasonable can he or she be justified in taking a life.

We should not underestimate the significance of improperly discounting the reliability component of objective reasonable belief. Fourth Amendment jurisprudence establishes that we must scrutinize the probative quality of the evidence supporting an officer’s belief. As early as the nineteenth century, Chief Justice Marshall explained that “the term ‘probable cause,’ according to its usual acceptation, means less than evidence which would justify eon-demnation.” Locke v. United States, 11 U.S. (7 Cranch) 339, 348, 3 L.Ed. 364 (1813) (emphasis added). Quoting Chief Justice Marshall with approval, Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), elaborated by noting “probable cause does not demand the certainty we associate with formal trials. It is enough that there was a fair probability.” Id. at 235, 246, 103 S.Ct. 2317 (emphasis added).⁷ The Court’s description of the totality-of-the-circumstances analysis, the very approach the majority endorses, Op. at 969, has similarly considered the “quantum of evidence” supporting the officer’s beliefs:

[Pjrobable cause[] is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the ‘totality of the circumstances, the whole picture’ that must be taken into account.... Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more rehable.

Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

Contrary to the majority’s suggestion, Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), which stated that “[t]he probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities,” is entirely consistent with my view. Id. at 371, 124 S.Ct. 795 (emphasis added). We do not require officers to be absolutely sure that a threat of death or serious physical injury is real before using deadly force. But we do require that officers have an objectively reasonable basis for believing that the threat is real. And in making that assessment, we look to factors like the “quantity,” “quality,” “content” and “reliability” of the information supporting the officer’s belief. See White, 496 U.S. at 330, 110 S.Ct. 2412.

Scott itself recognized that the soundness of an officer’s belief that a threat exists is a part of the Fourth Amendment reasonableness analysis. In affirming the officer’s use of force in a high speed car chase in that case, the Court relied on both the nature of the threat and how apparent that threat must have appeared to the officer at the time of the incident. See Scott, 127 S.Ct. at 1778. That the latter was an important ground for the Court’s holding is shown by Justice Scalia’s extensive discussion of the videotape of the chase, which “quite clearly contradicted] the version of the story told by respondent” by graphically revealing the dangerously high threat posed by the fleeing suspect. Id. at 1775. As Justice Scalia emphasized, it was “clear from the videotape” that the officer had an objectively sufficient basis to believe that the suspect posed a real danger. See id. at 1778. Unlike most cases, the Court was able to see from the officer’s perspective the actual conditions that led the officer to believe deadly force was necessary. Given that perspective, the only issue remaining was how to “ ‘balance the nature and quality of the intrusion ... against the importance of the governmental interests alleged to justify the intrusion.’ ” Id. (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)).

Scott thus left unaltered the bedrock principle that the objective reasonableness standard requires us to examine not only what an officer believes, but why he believes it. When the “nature and quality” of the intrusion are “minimal[ ], ... opposing law enforcement interests” can support the intrusion “based on less than probable cause.” See Place, 462 U.S. at 703, 103 S.Ct. 2637. Conversely, when the “nature and quality” of the intrusion are great, as when deadly force is used, the Fourth Amendment objective reasonableness standard requires that the officer’s beliefs about the threat have a firmer, more precise basis.

Scott’s characterization of Gamer further reinforces the continuing importance of assessing the “quantum of evidence” supporting an officer’s belief that a perceived threat exists. Gamer, the Court wrote, “was simply an application of the Fourth Amendment’s ‘reasonableness’ test to the use of a particular type of force in a particular situation.” Id. at 1777. In that case, it was unreasonable for the officer to shoot Garner “ ‘in the back of the head’ ” — to use deadly force — because Garner posed no threat. Id. (quoting Garner, 471 U.S. at 4, 105 S.Ct. 1694). The Court agreed that the officer ‘“could not reasonably have believed ’ ” otherwise in view of the scant support for any contrary belief: Garner was “ ‘young, slight, and unarmed’ ” and “running away on foot.” Id. (quoting Garner, 471 U.S. at 21, 105 S.Ct. 1694) (emphasis added).

To sum up, the reasonable belief formulation of the Fourth Amendment objective reasonableness standard in the context of deadly force is no less stringent than the probable cause formulation. See Gorman, 314 F.3d at 1115.⁸ Both formulations justify an officer’s use of such force only when it is appropriate in light of the nature of the threat posed and when the officer’s belief in the existence of that threat is objectively supported by sufficiently reliable evidence. An officer may use deadly force only when the circumstances support an objectively reasonable belief that the suspect poses an imminent threat of death or serious physical harm.

II.

I- also concur in the majority’s reversal of summary judgment on Price’s “longstanding practice” and failure to discipline claims. I must dissent, however, from its conclusion that Price failed to present sufficient evidence to create a genuine dispute of material fact regarding her failure to train theory. In so holding, the majority either imposes a novel requirement for establishing liability under a failure to train theory that City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), does not contain or inappropriately elevates the standard for summary judgment review.

A municipality’s failure to train its police officers may serve as a basis for § 1983 liability where the failure to tram amounts to deliberate indifference.” Gibson v. County of Washoe, 290 F.3d 1175, 1194 (9th Cir.2002) (quoting City of Canton, 489 U.S. at 388, 109 S.Ct. 1197). In order to prove deliberate indifference, the plaintiff need not show that the municipality intended to violate the rights of the parties concerned. See id. at 1195. Rather, where “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent” to this need, then “the failure to provide proper training may fairly be said to represent a policy for which the city is responsible.” City of Canton, 489 U.S. at 390, 109 S.Ct. 1197. Price alleges that the City’s deadly force training was so deficient that it amounted to deliberate indifference. See id. at 390 & n. 10, 109 S.Ct. 1197.

The majority concedes that the deliberate indifference standard is “objective” and that it permits “a fact finder to infer ‘constructive’ notice of the risk where it was ‘obvious.’” Op. at 973; see, e.g., Long v. County of Los Angeles, 442 F.3d 1178, 1190 (9th Cir.2006); cf. Anderson v. Liberty Lobby, 477 U.S. 242, 245, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (leaving weighing of the evidence to the jury). I believe the declaration provided by Price’s expert, Dr. Thomas Streed, is sufficient to require a jury determination here.

Dr. Streed opined that the City’s training program for the use of deadly force made it inevitable that police officers would shoot unarmed persons. He specifically cited the City’s use of a so-called “slumper” scenario in its training regimen, in which officers encounter a sleeping suspect in a car who, upon being awakened, immediately pulls out a hidden gun and fires at the officer. He also noted that the officers are trained on a computer simulation system m which suspects invariably attempt to kill the officer being trained. Dr. Streed ultimately concluded that the City’s training program “create[ed] a mindset for Portland officers that every citizen encountered may have a gun, and there is nothing the police officer can do to avoid being killed by a ‘bad guy’ unless the officer shoots first.”

A reasonable jury could conclude on the basis of this evidence, viewed in the light most favorable to Price, that the City “disregarded a known or obvious consequence” of its training practices. See Gibson, 290 F.3d at 1194. The Streed Declaration reasonably supports the inference that, quite apart from the letter of the City’s deadly force policy, officers were being instilled with a “shoot first” mindset that foresee-ably would result in unjustified applications of deadly force. Cf. City of Canton, 489 U.S. at 390 n. 10, 109 S.Ct. 1197.

In addition, a logical inference from Chief Foxworth’s admission — as the City’s highest ranking police officer and head of the Portland Police Bureau — that he erroneously thought that reasonable belief embodied a lesser standard than probable cause within the context of the City’s deadly force policy is that the training of the police force also reflected this mistaken understanding. A reasonable jury could conclude training based on this misconception constituted a failure to train. Therefore, I would permit Price also to pursue that theory of liability on remand.

1 . The district court incorrectly suggested that a lesser standard might apply to the use of deadly force when an officer is confronting an attacking rather than a fleeing suspect. The standard is the same in either circumstance. See, e.g., Billington v. Smith, 292 F.3d 1177, 1184 (9th Cir.2002); Scott v. Henrich, 39 F.3d 912, 914 (9th Cir.1994); Ting v. United States, 927 F.2d 1504, 1510 n. 3 (9th Cir.1991). Of course, that a suspect is fleeing rather than attacking may be relevant to whether or not he poses a risk of harm to anyone.

2 . I accept that what Brewer meant by "a more specific and demanding standard” is "more specific and demanding in that it requires a specific belief — that a ... suspect poses a threat of death or serious physical harm.” Op. at 970.

3 . See, e.g., Bouggess v. Mattingly, 482 F.3d 886, 890 (6th Cir.2007) (holding in a case of deadly force, "the question is ... whether ... Mattingly had probable cause to believe that Newby posed a threat of serious physical harm to Mattingly or to others”); Billingsley v. City of Omaha, 277 F.3d 990, 993 (8th Cir.2002) ("In Gamer, the Supreme Court established, absent probable cause of an immediate threat of death or serious bodily injury, use of deadly force is not objectively reasonable.”); Gutierrez v. City of San Antonio, 139 F.3d 441, 446 (5th Cir.1998) ("As a subset of excessive force claims, in Garner, the Supreme Court held that police use of "deadly force,” violates the Fourth Amendment unless 'the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others[.]’ ”) (internal citations omitted).

4 .See also Acosta v. Hill, 504 F.3d 1323, 1324 (9th Cir.2007) (holding, after Scott, that the district court did not err by refusing to give a separate deadly force instruction when the jury received an excessive force instruction).

5 . I believe it would be incorrect, and very dangerous, to reduce the deadly force standard to such a high level of generality by taking the Supreme Court’s statement out of context. The full paragraph from which the quote is taken begins with the Court’s statement that Gamer "did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute ‘deadly force.' ” Scott, 127 S.Ct. at 1777. The Court characterized Scott’s "attempt to craft an easy-to-apply legal test" as "admirable,” but concluded that "in the end we must still slosh our way through the factbound morass of 'reasonableness.' Whether or not Scott’s actions constituted application of "deadly force,” all that matters is whether Scott’s actions were reasonable." Id. at 1777-78 (emphasis added). In context, the Court was merely dismissing the respondent’s argument that Gamer prescribed certain preconditions that if not met would mean the use of deadly force was "per se unreasonable.”

6 . See Scott, 127 S.Ct. at 1779 (Ginsburg, J., concurring) ("I do not read today's decision as articulating a mechanical, per se rule. The inquiry described by the Court is situation specific. Among relevant considerations: Were the lives and well-being of others (motorists, pedestrians, police officers) at risk?”) (internal citations omitted).

7 . See also id. at 232, 103 S.Ct. 2317 ("Probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts....”); United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (“We have held that probable cause means 'a fair probability....’ ”); Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (“In dealing with probable cause ... as the very name implies, we deal with probabilities.”).

8 . Nothing in our holding today, however, should be read to equate probable cause or reasonable belief with reasonable suspicion. Cf. Op. at 968 (discussing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). As White explained, ''[rjeasonable suspicion is a less demanding standard than probable cause.” 496 U.S. at 330, 110 S.Ct. 2412; see also Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 2182, 165 L.Ed.2d 56 (2006) (quoting White for the proceeding proposition); Gorman, 314 F.3d at 1115-16(finding error when the district court “equated the 'reason to believe’ standard ... with ‘reasonable suspicion’ instead of probable cause”); Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (explaining that Terry's reasonable suspicion “is obviously less demanding than that for probable cause”).