Emanuel Devose v. Terry Addison

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3585EA
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Emanuel Devose, *
*
Appellee, *
*
v. *
*
Terry Addison, Detective, Pine Bluff * On Appeal from the United
Police Department, * States District Court
* for the Eastern District
Appellant, * of Arkansas.
*
City of Pine Bluff; Jefferson County, *
Arkansas; Robert Thomas, Officer, *
South East Drug Task Force, El *
Dorado Police Department, *
*
Defendants. *
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Submitted: February 23, 1999
Filed: April 20, 1999
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Before RICHARD S. ARNOLD, WOLLMAN, and BEAM, Circuit Judges.
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RICHARD S. ARNOLD, Circuit Judge.
Detective Terry Addison brings this interlocutory appeal from the District
Court&s order denying his motion for summary judgment, based on qualified
immunity, in Emanuel Devose’s 42 U.S.C. § 1983 action. Devose alleged that Robert
Thomas, an undercover officer with another police department, conspired with
Addison in the filing of an information charging Devose “A/K/A Curtis Jones” with
a May 21, 1988, drug sale to Thomas and a confidential informant; and that Addison
and Thomas knowingly gave false testimony at Devose’s trial. Devose was convicted
and imprisoned for the drug sale, but he obtained habeas relief in federal court and
then filed this suit.1
Part of our task in reviewing the denial of a motion for summary judgment
based on qualified immunity is deciding whether the claimant has asserted the
violation of a clearly established federal right. See Harlow v. Fitzgerald, 457 U.S.
800, 818-19 (1982). Devose identified a clearly established right not to be arrested
in the absence of probable cause, see Hannah v. City of Overland, 795 F.2d 1385,
1389 (8th Cir. 1986), and not to be arrested on the basis of an officer’s deliberately
false information, see Bagby v. Brondhaver, 98 F.3d 1096, 1098 (8th Cir. 1996). He
failed, however, to offer evidence that Addison was involved in a violation of these
rights. See Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994)
(allegations must be substantiated with sufficient probative evidence); cf. Walden v.
Carmack, 156 F.3d 861, 870-71 (8th Cir. 1998) (sheriff entitled to qualified immunity
from § 1983 claim related to issuance of search warrant, because sheriff did not
participate in any misrepresentation of information to issuing judge). Devose also
1
The District Court granted habeas relief on the grounds that jury selection was
racially discriminatory, the trial court should have ordered disclosure of the
informant's identity, and the prosecutor should have investigated Thomas’s credibility
and disclosed impeaching evidence about him to the defense. Devose v. Norris, 867
F. Supp. 836 (E.D. Ark. 1994). This Court affirmed as to the first two grounds, but
held that the third ground was procedurally defaulted. Devose v. Norris, 53 F.3d 201
(8th Cir. 1995).
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failed to rebut Addison’s evidence that Addison testified only to what Thomas told
him on May 21 about the drug sale, namely, that Thomas had bought cocaine from
a black male, about 24 or 25 years of age, who had wavy black hair, was about 6'4"
tall, weighed 200 pounds, and was identified (by the informant) as Curtis Jones.
Further, Devose failed to offer evidence that Addison could not reasonably rely
on Thomas’s identification of Devose, which occurred after Addison sent Thomas a
single photo of Devose taken upon his June 3 arrest for possession of marijuana. See
Manson v. Brathwaite, 432 U.S. 98, 101, 114-17 (1977) (officer’s use of single photo
with fellow officer not “failure of constitutional dimension”); United States v.
Ventresca, 380 U.S. 102, 111 (1965) (observations of fellow officers in common
investigation are reliable basis for warrant). Relying on Maxwell v. City of
Indianapolis, 998 F.2d 431 (7th Cir. 1993) (denying arresting officers qualified
immunity), Devose also argues probable cause was lacking because he was 4 inches
taller and 15 pounds lighter than the “Curtis Jones” described in Addison’s May 21
typewritten report (in which Addison had mistakenly listed the suspect’s height as
6'2"). Maxwell is distinguishable, however: in that case, there were glaring physical
inconsistencies (the plaintiff was missing the tip of a different finger, and was 6
inches taller and 100 pounds heavier than the fugitive), and the plaintiff's coworkers
contacted the police after watching the television show “America’s Most Wanted,”
see Maxwell, 998 F.2d at 432-33; here, fellow officer Thomas positively identified
Devose, who generally fit the description Thomas had given Addison (as reflected in
Addison’s field notes), and who was later arrested in the same area for a similar
offense.
Accordingly, we reverse and remand with instructions to grant summary
judgment in favor of Addison on the ground of qualified immunity.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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