NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 19-1924 ________________

KENNETH STAFFORD, Appellant

v.

TROOPER JOSEPH B. MORRIS; TROOPER DANIEL HARRIS TROOPER JOSEPH YURAN; TROOPER RONALD FLAGLEY, individually and in their official capacities as trooper for the State Police; CORPORAL DANIEL SIDLINGER, individually and in his official capacity as corporal for the State Police; JOHN DOES 1-10

________________

Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-17-cv-00749) District Judge: Honorable Marilyn J. Horan ________________

Submitted Under Third Circuit L.A.R. 34.1(a) May 26, 2020

Before: AMBRO, HARDIMAN, and RESTREPO, Circuit Judges

(Opinion filed: June 26, 2020) ________________

OPINION* ________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. AMBRO, Circuit Judge

Kenneth Stafford appeals the District Court’s grant of summary judgment to

Trooper Joseph B. Morris on Stafford’s malicious prosecution claim. He argues that

there was no probable cause to arrest and prosecute him. For the reasons discussed

below, we affirm the District Court’s order.

I. Factual and Procedural Background

On February 24, 2015, Trooper Daniel Harris filed a report concerning a child-

luring incident reported by two children. An unidentified man in a dark green pickup

truck approached a twelve-year-old girl (the “First Victim”) and an eight-year-old boy

(the “Second Victim”) as they were walking toward their school bus stop and offered

them a ride. The children, who were brother and sister, described the perpetrator as a

white man in his fifties with a thin build, short brown hair, and a mostly gray, full beard,

wearing a brown baseball cap and transition-style glasses. The sister also reported that

the same man, driving the same truck, had approached her a few weeks earlier.

On April 6, 2015, Trooper Joseph P. Yuran filed a child-luring incident report

concerning a nine-year-old boy (the “Third Victim”). A man in a white truck stopped the

boy and asked him if he wanted any candy. The child described the perpetrator as an old

white man with a four-inch “salt [and] pepper” beard wearing a brown baseball cap and

glasses. Appx. 252.

On April 13, 2015, Corporal Dan J. Sindlinger filed a child-luring incident report

concerning a fourteen-year-old girl (the “Fourth Victim”). A man in a white truck

approached the girl and asked her to help him find his dog. She responded “no” when the 2 perpetrator approached her and ran back to her house. Id. at 257. She described the

perpetrator as a male in his forties or fifties with salt and pepper hair and a “bushy”

goatee. Id. at 258.

After responding to the April 13 occurrence, Sindlinger spoke with Yuran, who

told him about one of the first two incidents. Sindlinger then learned that all three had

similar suspect descriptions and that all the children lived “in sight of one another.” Id.

His report stated that one of the incidents involved a tan pickup truck and the other two

involved a white pickup truck. On April 14, 2015, a press release was submitted to local

news media regarding the three incidents, and it included a description of the suspect and

the vehicles involved.

The day after the press release, the wife of Stafford reported him missing. Trooper

Ronald Fagley responded to the call and prepared a missing persons report. The wife

stated that Stafford had left a note, in which he wrote that he was having “crazy thoughts”

and had reached his “breaking point.” Appx. 262. She and Stafford’s son both reported

that Stafford had never done anything like this and noted that he was stressed and had

argued with his wife recently.

Shortly thereafter, Morris, who had been investigating the child luring incidents,

learned about Stafford’s disappearance during a briefing. Morris began to view Stafford

as a suspect because he believed that the description of Stafford matched those of the

luring incidents’ perpetrator, and because he had disappeared the day after the press

release announcing these incidents.

3 Morris then developed a photographic line up of individuals who looked similar to

Stafford and presented it to three of the victims, ages nine through fourteen. The First

Victim did not identify Stafford as her perpetrator and “indicated that she did not

recognize anyone in the lineup.” Appx. 269. Morris did not meet with the Second

Victim. The Third Victim identified Stafford as the perpetrator, agreed that he was “one

hundred percent positive” that Stafford had tried to lure him. Id. Finally, the Fourth

Victim indicated the perpetrator looked similar to two images in the lineup, pointing to

Stafford’s and another individual’s photos, but stated that she was not sure.

On April 20, 2015, Morris filed a criminal complaint against Stafford, accusing

him of violating § 2910(a) of the Pennsylvania Criminal Code (luring a child into a motor

vehicle or structure). Morris drafted an affidavit of probable cause (the “Morris

Affidavit”) in support of the criminal complaint. The Morris Affidavit set forth, among

other things: (1) the perpetrator of at least two of the incidents was in his fifties, had a

beard, and drove a white truck; (2) Stafford looked similar and had a white truck on his

property; (3) the day after the press release informing the public of the child luring

incidents, Stafford disappeared, leaving a note for his wife in which he stated that he was

having “crazy thoughts,” Appx. 262; and (4) one of the victims, when shown a

photographic array, was “one hundred percent positive,” id. at 269, that Stafford was the

man who approached him in a white truck and asked him whether he wanted candy, id. at

453–54.

A magistrate judge concluded that the information in the Morris Affidavit

established probable cause and issued an arrest warrant for Stafford. He was arrested and

4 charged with two felony counts of child luring, one misdemeanor count of child luring,

and one count of flight to avoid apprehension or punishment. Following a jury trial, he

was found not guilty on all charges.

Stafford then brought this action against all officers involved, alleging false arrest,

false imprisonment, and malicious prosecution, but later withdrew his claims against all

defendants except Morris. Following discovery, the District Court granted Morris’s

motion for summary judgment. Stafford argued that the Morris Affidavit contained

material misstatements and omissions that defeated probable cause. The District Court

concluded, after reconstructing word-by-word the Morris Affidavit to exclude any

alleged misstatements and include any omitted information, that a magistrate judge still

could have found probable cause for Stafford’s arrest and prosecution, and hence

accordingly all his claims failed. See Stafford v. Morris, No. 17-cv-749,

, at *7–9 (W.D. Pa. Mar. 26, 2019).

This appeal followed.

II. Discussion1

A claim for malicious prosecution requires evidence that: (1) the defendant began

a criminal proceeding; (2) he did so without probable cause; (3) he acted maliciously; (4)

the proceeding ended in the plaintiff’s favor; and (5) the plaintiff suffered a deprivation

1 The District Court had subject-matter jurisdiction under

and 1343 to hear this civil rights action brought pursuant to

. We have jurisdiction to review the District Court’s grant of summary judgment under

and do so on a clean slate. Andrews v. Scuilli,

(3d Cir. 2017). “Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”

(citation omitted). 5 of liberty. See DiBella v. Borough of Beachwood,

(3d Cir. 2005).

Stafford attacks the District Court’s conclusion as to probable cause. He repeats that the

Morris Affidavit contained material omissions and false statements of fact that defeated

the probable cause finding by the magistrate judge.

“[P]robable cause to arrest exists when the facts and circumstances within the

arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person

to believe that an offense has been or is being committed by the person to be arrested.”

Dempsey v. Bucknell Univ.,

(3d Cir. 2016) (citation omitted). It is a

“fluid concept” and requires courts to apply a “totality-of-the-circumstances approach.”

Illinois v. Gates,

, 232–33 (1983).

When an arrest is based on a valid warrant, courts conduct a two-pronged analysis

to determine whether probable cause existed. See Andrews v. Scuilli,

(3d Cir. 2017). They ask, “first, whether the officers, with at least a reckless disregard

for the truth, made false statements or omissions that created a falsehood in applying for

the warrant, and second, whether those assertions or omissions were material, or

necessary, to the finding of probable cause.”

(citing Wilson v. Russo,

,

786–87 (3d Cir. 2000) (internal quotation marks and alteration omitted)).

Regarding the first element, an assertion is made with reckless disregard when

“viewing all the evidence, the affiant must have entertained serious doubts as to the truth

of his statements or had obvious reasons to doubt the accuracy of the information

reported.”

at 698 (quoting Wilson,

). “Omissions are made with

reckless disregard where an officer withholds a fact in his ken that any reasonable person

6 would have known was the kind of thing the judge would wish to know.”

(quoting

United States v. Jacobs,

(8th Cir. 1993) (internal quotation marks

and alterations omitted)). With respect to the second element, “when a court determines

that information was asserted or omitted in an affidavit of probable cause with at least

reckless disregard for the truth, it must perform a word-by-word reconstruction of the

affidavit” and determine whether the reconstructed affidavit would establish probable

cause. Dempsey,

.

Stafford argues that Morris made misleading assertions in his Affidavit, including

(1) changing the color of the hair of the perpetrator described by two victims as brown to

gray (Stafford’s hair color); (2) changing the color of the perpetrator’s vehicle identified

by two victims as dark green to dark green or brown, a color similar to Stafford’s vehicle

color; (3) adding a color to the perpetrator’s beard matching Stafford’s beard color, gray;

(4) exaggerating why Stafford left his home, as related to his family circumstance; and

(5) asserting that Stafford matched the description of the perpetrator.

Stafford also argues that Morris made several material omissions in his Affidavit,

including omitting that (1) the Fourth Victim reported the perpetrator looked similar to

Stafford and another individual; (2) the First Victim affirmatively stated she did not

recognize anyone in the lineup; (3) the Third Victim, the sole victim to identify Stafford,

had previously informed Yuran on the day of the incident that “[he] really did not pay

that close attention to him . . . . It was getting pretty dark,” Appx. 253; (4) Morris did not

conduct a photographic line up with Victim Two; (5) three victims’ description of the

perpetrator as having a “thin build,” while Stafford weighed 240 pounds, id. at 248, 450;

7 (6) the Third Victim described the perpetrator’s hair as “salt and pepper,” while Stafford

had gray hair, id. at 252, 450; (7) the Third Victim’s description of the perpetrator’s long,

full beard, while Stafford wore a short goatee; and (8) the Stafford family’s explanation

that Stafford had been fighting with his wife.

As required by Dempsey, the District Court performed a detailed word-for-word

reconstruction of the Morris Affidavit, using Stafford’s proposed alterations. See

Stafford,

, at *6–7. The reconstructed affidavit specifies that the

victims described the perpetrator as having a thin build, provides a more specific

description of the perpetrator’s hair and beard, incorporates additional information

Stafford’s family reported to the police, clarifies that two of the victims were unable to

identify Stafford as the perpetrator in the photographic array, makes clear that the Third

Victim previously stated he was not paying much attention, and virtually includes all the

information Stafford complains was omitted or changed.

Based on that reconstructed affidavit, the District Court determined that “a neutral,

detached magistrate . . . would conclude that probable cause . . . [was] established in light

of the multiple and substantially consistent reports from the victims, the proximity of the

incidents, and the close connection between the media report of the child luring incidents

and [] Stafford’s disappearance.” Id. at *8. “Victim Three’s positive identification . . .

weigh[ed] heavily in favor of this determination.” Id. The Court concluded that

Stafford’s probable cause argument failed the second prong of the probable cause

analysis—“[t]he omissions and misstatements were not material or necessary to the

finding of probable cause. The variations regarding the descriptions of the perpetrator

8 . . . were minimal. Under the totality of circumstances, such discrepancies, even

assuming they were recklessly made, would not affect the existence of probable cause.”

Id. at *9. “In addition, none of the information provided by [] Stafford’s family was

inconsistent with, or exculpatory, as to [] Stafford having apparently fled the area shortly

after the media reported the child luring incidents.” Id.

We agree with the District Court. We have consistently held that a statement from

a victim witness is generally sufficient to establish probable cause. See, e.g., Sharrar v.

Felsing,

, 818–19 (3d Cir. 1997) (finding probable cause to arrest following

a reliable identification by a victim even though she initially identified a different person

as her assailant before changing her story to identify the arrestee); Merkle v. Upper

Dublin Sch. Dist.,

(3d Cir. 2000) (holding that it was reasonable for

the police to believe an eyewitness was telling the truth when they began a prosecution).

Here the Third Victim positively identified Stafford in a photographic lineup.

Although the reconstructed affidavit should have included language that Morris did not

take any steps to ensure that the Third Victim, a nine-year-old boy, understood the

difference between truth and lies, the absence of that information does not support that

the Third Victim was inherently unreliable. Moreover, Stafford cites no legal authority to

establish that Morris was required to take additional steps to ensure that the Third Victim

was reliable. Although “[i]ndependent exculpatory evidence or substantial evidence of

the witness’s own unreliability that is known by the arresting officers could outweigh the

identification such that probable cause would not exist,” Wilson

, the

9 reconstructed affidavit does not present independent exculpatory evidence that the Third

Victim was inherently unreliable.

Stafford’s remaining arguments are unavailing. He relies heavily on Andrews, in

which we reversed a grant of summary judgment on a malicious prosecution claim. 853

F.3d at 704–05. There the plaintiff was prosecuted for one alleged instance of child

luring of a fifteen-year-old girl. She described the perpetrator as “a white male with dark

hair, around 35 years old,” and his vehicle as “a red, four-door sedan” with a

“Pennsylvania license plate bearing the letters ACG.” Id. at 695. The girl later followed

the plaintiff, obtained his license plate number, and reported it to the police. The police

performed a photo array resulting in the girl identifying the plaintiff as the perpetrator.

Thereafter, the defendant officer completed an affidavit of probable cause that led to the

arrest and prosecution of the plaintiff who was ultimately acquitted. Id. In the officer’s

affidavit, he changed the girl’s initial description of the man to “a middle[-]aged white

male with dark hair with streaks of gray,” and omitted both her initial description of the

vehicle plate number bearing the letters “ACG” and that the plaintiff’s vehicle was

actually a three-door coupe with a Pennsylvania license bearing JDG4817. Id. at 696,

700. We concluded that the misstatements and omissions in the affidavit defeated

probable cause because, even where there is a positive identification, “glaring

discrepancies in the witness’ testimony can undermine the reliability of the positive

identification.” Id. at 702.

Andrews is distinguishable. The officer’s affidavit omitted information from the

sole witness to the crime, and there was reason to doubt the reliability of the sole

10 witnesses’ identification of the arrestee—the obvious discrepancies. There are no

comparable inconsistencies in the Third Victim’s statements here, and the totality of the

circumstances in this case, including similarities in the other victims’ statements and the

circumstances of Stafford’s disappearances, taken together, allow the probable cause

determination to stand. In reversing the grant of summary judgment in Andrews, we

expressly distinguished Wilson, a case involving multiple witnesses, one of whom

reliably identified the arrestee, stating “unlike Wilson, all evidentiary roads lead back to

one person.” Id. at 704. Unlike Andrews, and like Wilson, here there were multiple

witnesses who described the perpetrator’s appearance and vehicle.

Moreover, we have previously held that discrepancies of the kind Stafford points

to are usually insufficient to void probable cause. In Wilson, for example, we concluded

that evidence the perpetrator was taller than the arrestee, and one of the two victims failed

to identify the arrestee when shown a photo array, did not outweigh the positive

identification from another witness. See 212 F.3d at 791–92. We explained that the

discrepancy between an initial description of a perpetrator as between 6’2” and 6’5” and

a later identification of the perpetrator as 5’11” did not render the identification

unreliable. See id. at 783, 792. Similarly here, the discrepancies regarding Stafford’s

facial hair and weight, and the failure of another victim to identify Stafford positively, do

not undermine the similarities, including the description of the vehicle and the reliable

identification by one of the victims. See Dempsey, 834 F.3d at 479–81 (affirming grant

of summary judgment in a malicious prosecution case and holding that an officer’s

11 failure to include certain conflicting witness statements in the affidavit did not undermine

the existence of probable cause).2

* * * * *

Accordingly, we affirm the District Court’s order granting Morris summary

judgment.3

2 Stafford forfeited his false arrest and false imprisonment claims because he failed to raise them adequately in his opening brief before us. While he discussed the elements of a malicious prosecution claim in detail, Stafford Br. 26–27, he mentioned his false arrest and imprisonment claims only when reciting the procedural history of this case, id. at 5. Such passing reference was insufficient to preserve his claims. See John Wyeth & Bro. Ltd. v. CIGNA Intern. Corp.,

, 1076 n.6 (3d Cir. 1997). Even if he had properly preserved his false arrest and false imprisonment claims, those claims fail for the same reason as his malicious prosecution claim, for they also require a plaintiff to show that officers lacked probable cause. See Kossler v. Crisanti,

(3d Cir. 2009) (reciting elements of a malicious prosecution claim); James v. City of Wilkes-Barre,

, 682–83 (3d Cir. 2012) (reciting elements of false arrest and false imprisonment claims). 3 In this context we need not decide whether Morris acted with malice. See Andrews,

(describing the two-prong probable cause test in the conjunctive, using “and,” not “or”); Wilson, 212 F.3d at 786–87 (same). And given that Stafford’s claims fail, we also need not decide whether Morris would have been protected by qualified immunity. 12