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On September 4, 2015, the emergency services dispatch in Abilene, Texas, received an anonymous call wherein an unidentified individual informed the dispatcher that “I just shot my girlfriend” and “I used a 9mm to shoot my girlfriend right in the f—ing eye.” The dispatcher then asked the caller for his location, to which he gave Robert Reitz’s address, including both the building and apartment numbers. The call concluded shortly after. Moments later, the caller phoned back, demanding to speak to a hostage negotiator and telling the dispatcher that his girlfriend is tied up in the bathroom right now. Ignoring the dispatcher’s request for his name and phone number, the caller reiterated his demand and informed the dispatcher that he was in possession of “a 12-gauge, an M-16, and a 9-millimeter.” Only then did the caller reconfirm he was at the address previously given, saying he was at the front door “waiting for the police to start knocking so [he] could start shooting.”
The Abilene Police Department (APD) dispatched multiple officers, including a SWAT team, to address the volatile situation. After the officers created a perimeter around the apartment complex, the SWAT team forcibly breached the apartment’s door without a warrant based on their belief that exigent circumstances existed. Once inside, APD officers found only Reitz, his dog, and an Sig Sauer pellet gun. Officer Austin Graves then handcuffed Reitz and escorted him to a patrol car. An unnamed officer then took Reitz to Officer Jimmy Woods’s patrol car and gave Woods Reitz’s cell phone.
Officer Woods, a detective in APD’s Crimes Against Persons Division, was the primary officer for the incident tasked with compiling information and drafting a report regarding the false 911 call. Woods was initially stationed at the perimeter and did not enter Reitz’s apartment until after the breach, beginning his investigation by photographing the scene. Woods next questioned Reitz, who explained that nothing happened, having just arrived home from a weekly visit to his psychiatrist. Woods then spoke with Reitz’s neighbor, Trevor Watts, who said that Reitz—in Woods’s words—“acts kind of weird all the time” and “has a girlfriend coming and going from his apartment.” Woods followed up with Reitz about his girlfriend, to which Reitz replied that they had ended their relationship nearly a year prior. Finally, Woods asked Reitz for consent to search his cell phone’s call log; Reitz consented. The log did not reveal any emergency calls, but Woods, notwithstanding Reitz’s assistance, was unable to locate a log of deleted calls. Woods asked Reitz if he would be willing to go to APD for technicians to search his phone; Reitz agreed.
Upon arriving at APD, Reitz again consented to having his phone searched. Technical investigation failed to produce information, as the APD’s system was not able to download the call history of the phone due to either the age of the cell phone, or its software. Reitz was subsequently released and taken back to his apartment. Five days after the incident, APD assigned Detective John Wilson, III, to follow up on the case, including determining whether Reitz placed the initial calls.
After trying but failing to speak with Reitz three times throughout September, Wilson managed to speak with Reitz over the phone on October 13, 2015—which Wilson recorded. Wilson played Reitz a portion of one of the 911 call recordings and Reitz denied he was the anonymous caller. During this call, Wilson also told Reitz that the phone was analyzed and deleted call logs showed Reitz as placing the calls in question, which Reitz contested given the tests run the day of the incident. Without addressing Reitz’s objection, Wilson said he believed that the recordings sounded like Reitz, informed Reitz that he would be filing this case with local prosecutors as a “Terroristic Threat on Public Servants,” suggested that Reitz call the APD or the district attorney with any questions, and offered to speak to counsel if Reitz had retained legal representation.
Indeed, according to Wilson’s affidavit, upon listening to the recorded 911 calls and a recording of his call with Reitz, he believed that Reitz did make the 911 calls on September 4, 2015. Wilson also asked the 911 dispatcher who received the anonymous calls as well as another detective to compare the three recorded calls, and both believed that the same individual made all three calls. Following these corroborations, Wilson followed through on his pronouncement to Reitz and filed the case to the Taylor County District Attorney’s Office as a Terroristic Threat. An Assistant District Attorney (ADA) with the Office asked Wilson to re-file the case as a false report; Wilson complied. Larry Tatum, an Investigator with the Taylor County District Attorney’s Office, signed the arrest affidavit, and Wilson executed the warrant at Reitz’s place of work.
On November 25, 2015, following Reitz’s arrest, Wilson decided, in consultation with an unnamed ADA working on the case, to send the recordings of all three calls to Dr. Robert Wallace, a professor in McMurry University’s Sociology Department. Per Wilson’s notes: “Dr. Wallace concluded that in his opinion there is reasonable doubt that the recordings are the same person. Wilson phoned the unnamed ADA to discuss Dr. Wallace’s conclusion, and the ADA recommended dropping the case. Wilson did so, recognizing that given Dr. Wallace’s conclusion, there was some reasonable doubt that Reitz dialed 911.
Reitz filed a §1983 against Woods, Wilson, and Tatum. The district court found that: (1) Woods had probable cause to arrest Reitz; (2) Wilson did not include false statements in his notes, nor could Reitz establish any statements—even if assumed untrue arguendo—were included intentionally or recklessly; and (3) Tatum reasonably relied on the information provided to him by other officers and the ADA prosecuting the case. The 5th affirmed as to Wilson and Tatum but reversed as to Woods.
A. False arrest for making a false police report
We turn to whether Reitz was detained or arrested absent probable cause and, if so, whether the probable cause analysis was unreasonable, which would overcome the qualified immunity defense.
Probable cause means a fair probability that the defendant committed the crime, which requires more than a bare suspicion but less than a preponderance of evidence. See Watson.
Reitz’s Fourth Amendment claim against Woods is due to the allegedly unlawful, prolonged detention following the anonymous calls and apartment breach. Neither party contests the permissibility of Reitz’s initial detention under the exigent circumstances: the officers credibly believed that both their lives and the life of a wounded hostage were in danger. But officers may not disregard facts tending to dissipate probable cause. Here, the officers at the scene could not disregard that the key details of both calls were proven untrue: no one shot at any officers as they breached the door, none of the three firearms named in the call were located, no injured hostage was found in the apartment, and no evidence of injury was present. Accordingly, probable cause for detention pursuant to any concern about a violent or terroristic threat had been vitiated.
Woods seemingly agrees, asserting that the nature of the probable cause changed from the time of Reitz’s initial arrest to the duration of his continued detention. Whereas Reitz’s initial arrest was based on probable cause related to the reported hostage situation, his continued detention was based on probable cause related to making a false police report.
This tracks the district court’s reasoning, which found that probable cause existed to continue restraining Reitz after the exigent circumstances had dissipated in light of five facts: (1) Reitz’s living at the address given by the anonymous caller; (2) Reitz’s ownership of a pellet gun; (3) Reitz’s regular visits with a mental health professional, including that day; (4) Reitz’s neighbor’s statements that he acts “weird”; and (5) Reitz’s conflicting account of his love life vis-à-vis a neighbor. On appeal, Woods urges us to adopt the district court’s reasoning in reliance upon the same facts. We decline to do so.
Reitz’s ownership of a legal and non-lethal firearm, for example, has no bearing on the notion that he would falsely call 911. Further, visits with a mental health professional are only relevant to probable cause determinations if said visits specifically connect the patient to a crime or a particular concern, typically in the form of the professional’s express representations on the subject. The same holds true for the two other factors identified: that a neighbor would have a different account of Reitz’s guests is apropos of nothing, while the neighbor’s vague description of Reitz as “weird” does not appropriately factor into the probable cause analysis. Accordingly, there was no probable cause to continue to detain Reitz after the facts supporting the initial detention had dissipated.
For the reasons outlined above, the factors Woods identified as giving rise to probable cause for an arrest on the charge of making a false police report are wholly unrelated to the charge. Furthermore, this is not a situation in which we must be concerned with second-guessing an officer’s decision that was required to be made in a split second. Reitz’s detention was prolonged as Woods undertook his preliminary investigation and any exigency or threat had long since dissipated. The only stone then still unturned was a review of any deleted call logs that Woods and Reitz were jointly unable to retrieve from Reitz’s phone at the apartment. But an inability to retrieve those logs is far from sufficient to arrest Reitz, particularly where a reasonable officer who has already begun an initial investigation could have continued doing so by requesting that Reitz voluntarily submit his phone for review or seeking a warrant solely to search his phone an investigative step later taken.
Moreover, as Reitz noted in oral argument, it would be nonsensical for someone to file a false report on himself that could have easily resulted in damage to his own apartment, if not his death at the hands of the police. Given the totality of the circumstances, we cannot conclude that based on such minuscule information in an unhurried setting such as in this case, that arresting Reitz was objectively reasonable. Accordingly, Woods is not entitled to qualified immunity on this claim; it must proceed to trial.
B. False statements to prepare arrest warrant by Wilson
The district court found that Reitz does not direct the Court to any statement by Wilson that was false or misleading. Rather, the district court correctly noted that the statements of which Reitz complains—Wilson’s identifying Reitz as the 911 caller—are phrased as his subjective impression, not an incontrovertible fact. We agree.
Wilson stated in his report that “it appears that the recorded calls are from the same person.” Furthermore, Wilson qualified this statement again, writing: “It should be noted that the suspect in this case stated that he did not make the calls. These are not misstatements, but qualified statements that do not give rise to liability. We affirm the district court’s determination on this claim.
C. False statements to prepare arrest warrant by Tatum
Reitz homes in on the following misstatements and omissions in the affidavit: (1) providing an incorrect date for when the incident occurred, (2) failing to include that Reitz believed none of his neighbors had a problem with him, (3) omitting Reitz’s statements about his former girlfriend, and (4) omitting details regarding the APD’s search of Reitz’s phone as yielding no evidence of a call to the emergency services line.
Reitz argues that because “Tatum had no personal knowledge” concerning the investigation and failed to make any effort to obtain such knowledge, the misstatements and omissions evince a reckless disregard for the truth. Reitz is correct on the law: not only does Franks liability concern misstatements but also the intentional or reckless omission of material facts from a warrant application.
Applying the Franks framework to both falsehoods and omissions, assuming misstatements are present or relevant omissions were made and assuming the requisite intentionality or recklessness be found, courts are to consider the faulty affidavit as if those errors and omissions were removed, meaning we must examine the corrected affidavit and determine whether probable cause for the issuance of the warrant survives the deleted false statements and material omissions.
Assuming arguendo the four statements listed above were false or omitted and done so either intentionally or recklessly, if the affidavit was amended to remedy the errant date and include those statements, a reasonable magistrate judge could still determine that there was probable cause to arrest Reitz on the charge of making a false alarm or report.
A reasonable magistrate judge could find probable cause based on the opinion of the police officer who spoke directly to Reitz and believed him to be the anonymous 911 caller. What is more, a complete affidavit would include other information that could further buttress a finding of probable cause, including that Wilson corroborated his belief with another police officer as well as the 911 dispatcher that received the anonymous calls. Because a corrected affidavit still would have shown probable cause, we affirm the district court’s order granting summary judgment to Tatum.