The Truth, The Whole Truth, And Nothing But The Wrong Shoe Size

KOHLER v. ENGLADE, USCA for the Fifth Circuit No. 05-30541, 2006 U.S.App. LEXIS 28841, appeal from USDC-LAMD before Garza, DeMoss, and Stewart, Circuit Judges, opinion by Garza, filed 21 Nov 2006.

FACTS: In 2001 near Baton Rouge, Louisiana, DNA evidence indicated that one unknown man raped and murdered three women. Surmising that a serial killer was on the loose, the FBI's Behavioral Analysis Unit (BAU) worked up a Criminal Investigative Analysis (aka profile) suggesting that the perp was between 25 and 35, "financially insecure," and worked a job that required physical strength. A size 10 or 11 shoe left a bloody footprint at one of the crime scenes. Police got 5,000 tips and asked 600 men for DNA samples. Two of the anonymous tips pointed to Plaintiff, currently unemployed, who had a 1982 burglary conviction but received a full pardon for same in 1996. Police contacted Plaintiff and asked for a DNA sample, which he refused to give. Plaintiff asserted his innocence, informing the police of his pardon and that he had size 13 feet and wore size 14 work boots, and inviting the police to investigate his whereabouts at the times of the crimes. An officer told Plaintiff that if police had to get a warrant for his DNA, Plaintiff "could get his name in the papers" because that would be public record. Plaintiff still refused. Detective Johnson then contacted Plaintiff, who again refused to supply a DNA sample.

Detective Johnson wrote and swore to an affidavit stating among other things that only 15 of 600 subjects had refused to provide DNA samples, that two anonymous tips pointed to Plaintiff, the 1982 burglary conviction, Plaintiff's current unemployment, and Plaintiff's former employment with a company that had a location near where a victim's cell phone was found. Not in the affidavit were: Plaintiff had not worked there in 10 years, Plaintiff's pardon of the burglary conviction, any corroboration of the anonymous tips, or any mention of the FBI profile. The warrant issued. Plaintiff submitted to DNA testing and promptly appeared in local media as a suspected serial killer who was refusing to cooperate with the police.

Two months later, Plaintiff read in the local newspaper that the DNA test excluded him as the donor of any material from the crime scenes. Later still, police identified the correct DNA donor. In 2004, career criminal Derrick Todd Lee received a life sentence in one of the murder cases and a death sentence in a second.

PROCEDURE: Plaintiff sued Detective Johnson, his chief of police, the city, the parish, and the parish sheriff under 42 U.S.C. § 1983 for violation of his Fourth Amendment right to be free from unreasonable search and seizure. The central claim was that Detective Johnson submitted a search warrant affidavit that did not contain enough facts to establish probable cause to warrant a DNA search. Plaintiff alleged that the other defendants had policies or customs of violating similar rights. Defendants moved for summary judgment. The district court ruled that Detective Johnson knew enough facts, including the FBI profile, to establish probable cause, and even if the omitted facts favorable to Plaintiff had been in the affidavit, probable cause still existed. Detective Johnson did not plead qualified immunity. Also, there was no evidence to prove a policy or custom of violation as to any other defendant. From this grant of summary judgment, Plaintiff appealed to the Fifth Circuit.

DECISION: The district court correctly released all but Detective Johnson from liability because no evidence existed of a policy or custom of violation, but Detective Johnson himself was another matter. Anonymous tips are shaky grounds for probable cause unless and until corroborated, which these never were. Plaintiff refused to provide DNA voluntarily, once worked near the site where a victim's cell phone turned up, and had a 20-year-old burglary conviction, but none of that means Plaintiff was likely a serial killer. Detective Johnson's counsel conceded at oral argument that the affidavit did not establish probable cause, but then argued that the FBI profile added enough to the affidavit to save it. Since Detective Johnson did not include the profile in the affidavit and the issuing magistrate could not have known about it, that made no difference, and even if the profile had been in the affidavit, Plaintiff's physical strength and financial difficulty were typical of thousands of men in the area. Plaintiff further complained about the exculpatory information left off of the affidavit (a Franks claim), but since the affidavit was facially lacking in probable cause, Franks did not apply here. Though Detective Johnson did not assert qualified immunity as a defense, he could do so at trial, although it probably would not work. Summary judgment AFFIRMED as to all other defendants, but VACATED AND REMANDED for further proceedings as to Detective Johnson.

EDITORIAL: Just the facts, folks. Not only did a lot of time and effort get wasted on the obviously wrong man, but now some major bucks will change hands. Sometimes people won't cooperate because they're guilty, and sometimes they won't cooperate because they're innocent and you're being a jerk. Don't compound the problem by pulling a fast one on the magistrate. If an officer got caught doing this in my AO, said dude would need to relocate to some other area code.