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September 13, 1983


The opinion of the court was delivered by: LUONGO

 In this civil rights action under 42 U.S.C. § 1983, Inman L. Jones, Jr. seeks damages for alleged violations of his constitutional rights. Jones claims that his rights were violated when he was arrested by Officer David A. Waters of the Philadelphia Police Department on January 17, 1980 in connection with a sexual assault. Thereafter, he was tried and convicted of rape and criminal conspiracy and is now serving a prison term of six to twenty years.

 As described in an earlier opinion in this case, 563 F. Supp. 817 (E.D. Pa. 1983), Jones alleges that Officer Waters violated his constitutional rights by "entering and searching the plaintiff's residence without a warrant or without the permission of the owner of the house; by seizing plaintiff's person without a warrant, without his permission or without probable cause to believe that he committed a crime; and by damaging plaintiff's personal property (an air hockey set) in the course of the said events." (Complaint para. 11.) The Complaint also alleges that Detective Donald Butler violated Jones' constitutional rights by handcuffing him to a chair in an escape-proof room without adequate ventilation, and by detaining and questioning him for several hours without probable cause and without formally charging him with a specific crime. Defendants Waters and Butler have filed a motion for summary judgment with supporting affidavits. For the reasons discussed below, I will grant their motion.

 In this suit, plaintiff claims that Officer Waters lacked probable cause to arrest him, or, in the alternative, that Waters should have obtained an arrest warrant prior to his entry into Jones' apartment. Under § 1983, Jones must prove that Waters, under color of state law, arrested him without probable cause, or without a warrant and without justification for not obtaining one. See Gomez v. Toledo, 446 U.S. 635, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980). *fn1" On the record before me these claims are unsupportable.

 The officer then calmed down the assault victim and asked her where the incident had taken place. Although the victim could not provide the specific address of the place where she was attacked, she accompanied Officer Waters in a search of the area in his patrol car. During that search, the victim recognized a house with a metal gate as the site of the attack. She told the officer that her assailants had taken her down some steps and through a basement door into the house. At that point the victim and Officer Waters approached the house, looked through the cellar window, and saw two men. The victim positively identified the men as participants in the crime, stating that she was "sure" of their identity. Officer Waters then entered the dwelling and placed two men (Jones and Robert Womak) under arrest.

 In his affidavit, Officer Waters also stated that when he entered the dwelling, he was concerned that the men identified by the victim might try to escape or to destroy evidence. Further, he stated that he neither saw an air hockey set on the premises nor touched any other personal property belonging to Jones.

 An affidavit submitted by the victim of the crime corroborated Officer Waters' statements concerning his investigation of the incident and apprehension of Jones and Womak. The victim stated that, while at the scene of the crime, she did not see the air hockey set alleged to have been damaged by Officer Waters, and that the officer transported her to Presbyterian Hospital immediately after the arrest.

 On the basis of the undisputed affidavits of Officer Waters and the victim, it is clear that there was probable cause for Waters to believe that a rape had been committed on January 17, 1980, and that Jones was a participant therein. To establish probable cause for an arrest, it is, of course, necessary for the arresting officer to be aware of "facts and circumstances 'sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.'" Gerstein v. Pugh, 420 U.S. 103, 111, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975), quoting, Beck v. Ohio, 379 U.S. 89, 91, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964). See also United States ex rel. Wright v. Cuyler, 563 F.2d 627 (3d Cir. 1977). When confronted with a victim's positive identification of her assailant shortly after completion of the attack, corroborated as it was by the victim's recognition of the house to which she had been taken, Officer Waters clearly had been made aware of facts and circumstances sufficient to establish probable cause for Jones' arrest. Dennis v. City of Philadelphia, CA No. 82-2156 (E.D. Pa. 1983). Moreover, because the person from whom Waters received his information was the victim of the crime, he was justified in placing reliance in the truthfulness of her statements. See United States v. Anderson, 175 U.S. App. D.C. 75, 533 F.2d 1210, 1213 (D.C. Cir. 1976).

 I am aware that the question of probable cause in § 1983 actions is ordinarily one for the jury. Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978). However, the undisputed affidavits before me establish probable cause so clearly that no reasonable jury could conclude otherwise, and summary judgment is appropriate. Cf. Patzig, 577 F.2d at 848-849.

 Jones next claims that Officer Waters violated his constitutional rights by failing to obtain an arrest warrant prior to his entry into Jones' apartment. Under the Supreme Court's decision in Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), the Fourth Amendment requires that a warrant be obtained in order to arrest a person in his or her home. In Payton, the Supreme Court ruled inadmissible evidence secured pursuant to a warrantless arrest in a suspect's home. The police in Payton compiled sufficient evidence to charge the defendant with murder after two days of investigation. After the defendant's murder conviction was sustained by the New York Court of Appeals, the Supreme Court ruled that the Fourth Amendment requires police to obtain a warrant prior to arresting an individual in his or her home, and therefore excluded evidence gained in the search pursuant to Payton's arrest. The Payton Court noted, however, that the warrant requirement does not apply if an arrest is made under "exigent circumstances." Id. at 590.

 In the present case, Jones contends that no exigent circumstances obviated the need for a warrant for his arrest because he possessed no weapons or evidence that could be disposed of quickly, and because it was not likely for him to attempt escape. *fn2" That argument, however, overlooks several critical facts concerning the circumstances of the arrest. Primarily, from the affidavits of Officer Waters and the victim, there was evidence that two of the participants in the attack had already taken flight when Officer Waters returned with the victim to the scene of the crime. Because neither the officer nor the victim knew if the premises in which the crime was committed was the residence of any of the suspects, the officer was justified in assuming that there was a likelihood that Jones and his companion would also escape before Waters could summon additional officers to guard other exits from the building. Furthermore, although this is not a case involving readily disposable evidence such as drugs, Jones could have concealed or destroyed crucial elements of proof (e.g., items of wearing apparel) if Waters had sought a warrant. The law does not require police officers to forego arresting a suspect in his personal residence "when their attempt to secure a warrant might delay them sufficiently to cause the criminal to get away or destroy the fruits or evidence of his crime." United States v. Davis, 461 F.2d 1026, 1030 (3d Cir. 1972) (citations omitted). See also United States v. Rubin, 474 F.2d 262 (3d Cir.), cert. denied, 414 U.S. 833, 94 S. Ct. 173, 38 L. Ed. 2d 68 (1973).

 The present case is thus distinguishable from Payton v. New York, supra. Officer Waters did not have several days to compile evidence against Jones and to repair to a neutral magistrate for a warrant. His pursuit of the victim's assailants led immediately to discovery of two suspects who were likely to flee if apprised of Waters' presence. Moreover, as the defendants note in their briefs, Officer Waters was engaged in "hot pursuit" at the time of Jones' arrest. See Warden v. Hayden, 387 U.S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967). Although this is not a "true 'hot pursuit'" case because both Jones and Womak had come to an at least temporary stop when they arrived at Jones' residence after abducting the victim, cf. United States v. Santana, 427 U.S. 38, 42-43, 49 L. Ed. 2d 300, 96 S. Ct. 2406 (1976), it is not necessary under cases defining "hot pursuit" that each defendant be in flight in order to sustain warrantless arrests of persons in their homes by pursuing police officers. See, e.g., United States v. Stubblefield, 621 F.2d 980, 982 (9th Cir. 1980) (arrest sustained where officers arrested three bank robbery suspects outside premises, then entered house to arrest fourth). More importantly, however, even if I were to conclude that the absence of a warrant was not excused by exigent circumstances, summary judgment would be appropriate. Officer Waters is entitled to immunity for his actions under § 1983 unless his conduct violated "clearly established law" defining Jones' constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 2739, 73 L. Ed. 2d 396 (1982). *fn3" On the record now before me, which as noted above consists largely of the uncontroverted affidavits of Officer Waters and the victim, a reasonable jury could not find that the officer violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S. Ct. at 2738. Although the general requirement that warrants be obtained before an arrest is carried out in a defendant's residence is clearly established, see Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), it is not at all clear that a reasonable person would know that a warrant was needed under the circumstances confronting Officer Waters. Indeed, I have determined that no warrant was required under these circumstances. Summary judgment is therefore appropriate.

 In reaching this determination, I have assumed arguendo that a reasonable jury could reach a different conclusion with respect to the question whether exigent circumstances attended Jones' arrest. But summary judgment is nevertheless appropriate here because a reasonable jury would not be entitled to conclude that Officer Waters violated the clearly established constitutional rights of the plaintiff. *fn4" As the Supreme Court noted in Harlow v. Fitzgerald, supra, whether the ...

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