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.
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).
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.
As the Supreme Court noted in Harlow v. Fitzgerald, supra, whether the plaintiff's rights were clearly established is to be decided by the court on a motion for summary judgment prior to the commencement of discovery.
Jones next claims that Officer Waters violated his constitutional rights because Waters intentionally damaged an air hockey set in Jones' apartment. It is not clear initially whether Jones' property damage claim is barred by the Supreme Court's decision in Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), which held that a state could satisfy a prisoner's property loss claim by providing an adequate post-deprivation remedy. Pennsylvania has enacted a tort claims statute which appears on its face to apply to the claims at bar, and thus to satisfy the mandate of due process. See 42 P.S. § 8550. It is unnecessary, however, to reach this question because plaintiff has failed to buttress his opposition to Waters' motion for summary judgment with supporting affidavits. Fed.R.Civ.P. 56(e). Officer Waters' uncontroverted affidavit asserts that he did not see an air hockey set on the premises when he arrested Jones. He could not, therefore, have intentionally destroyed it. The victim's affidavit corroborates Officer Waters' account of his actions. Waters' affidavit thus establishes the absence of a genuine issue of fact, and Jones cannot simply rely upon contrary allegations in his complaint in order to avoid summary judgment. Adickes v. Kress & Co., 398 U.S. 144, 159-160 & n.20, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Fed.R.Civ.P. 56(e) advisory committee note.
For similar reasons, I will grant Detective Butler's motion for summary judgment. Butler is alleged to have violated plaintiff's constitutional rights in connection with Jones' detention and interrogation. Detective Butler's affidavit states that his role in Jones' case consisted of applying for and executing a search warrant at Jones' residence later on the morning of the arrest. Again, without filing a supporting affidavit, Jones attempts to rebut this affidavit by stating rather vaguely that Butler was "engaged in an active investigation of the plaintiff." (Def's Answer to Motion for Summary Judgment). This unsworn allegation does not contradict Butler's affidavit, and is insufficient to create a genuine issue of material fact germane to Detective Butler's liability for Jones' detention. Fed.R.Civ.P. 56(e). Therefore defendant Butler's motion is also granted.
This 13th day of September, 1983, it is ORDERED that the Motion of defendants, Officer David A. Waters and Detective Donald Butler, for Summary Judgment is GRANTED.