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Manley v. Fitzgerald

June 10, 2010


The opinion of the court was delivered by: Judge Pellegrini

Argued: May 18, 2010



Joann Manley, individually and as administratrix of the estate of her husband, Raymond Manley (together, the Manleys) appeals from the order of the Court of Common Pleas of Philadelphia County (trial court) granting the motion for summary judgment filed by Police Lt. Joel Fitzgerald, Police Sgt. Michael D. Young, Police Officer Joseph Smith, Police Officer Rubin Perkins and Police Officer Sean Bascom (collectively, the Officers) and dismissing the Manleys' suit against them for civil conspiracy, false arrest/imprisonment, malicious prosecution and intentional infliction of emotional distress following their arrest for narcotics violations and the subsequent dismissal of the charges. For the following reasons, we affirm.

On the evening of February 22, 2007, a gunman attempted to assassinate two Philadelphia police officers who had observed a drug deal while sitting in an unmarked police car. The gunman walked up to the car, pulled out his weapon and fired at point-blank range, but he somehow misfired. The police officers, who were unharmed, returned fire, but the gunman escaped. The next evening, Philadelphia police officers saturated the five-block area surrounding the shooting in an attempt to catch the gunman or learn any information about him.

Two of those officers set up a narcotics surveillance on the 5000 block of Tacoma Street and between 10:00 and 11:30 p.m. observed 11 drug transactions at the doorway of 5048 Tacoma Street, just across the street from where the officers were parked. The man at the door, later identified as Levoin Manley (Levoin), the adult son of the Manleys, communicated with his customers by whistling and yodeling, sometimes from inside the house. When the customers came to the door, Levoin went inside the house and returned with the drugs. The house was owned by the Manleys, who lived there with Levoin and their other son. Levoin was living with his parents there because he was under house arrest and electronic monitoring while awaiting trial following a shooting. Joann Manley later testified that she and her husband were at home at the time when the drug deals occurred and that she was doing work in the dining room until approximately 11:00 p.m. Based upon their observations, the two officers obtained a warrant to search the property.

The following evening, the five defendant Officers executed the search warrant and entered the Manleys' home. Levoin and his parents were at home, and they were secured in the living room. The Officers then conducted the search and found a freezer in a room off of the kitchen that contained 315 Ziploc packets of crack cocaine, a 16 gram chunk of crack cocaine, a bottle containing five Oxycodyne pills under the name of another person, over $1,000 in cash, and several hundred new and unused packets. They also discovered a black trash bag inside the backyard barbeque grill containing three large Ziploc bags of marijuana and an additional 21 packets of crack cocaine in one of the upstairs bedrooms. Levoin also had 19 Ziploc bags of marijuana on his person.

At this point, the Manleys allege that the Officers questioned Levoin about the shooting from two nights earlier. Levoin denied any knowledge of the incident, at which time Joann Manley, in her deposition, testified that the Officers threatened that unless Levoin provided them with information about the shooting they would arrest his parents too. When Levoin continued to maintain that he knew nothing of the incident, all three Manleys were placed under arrest and charged with violations of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act of 1972.*fn1 The Officers contest that they made any threats before placing the Manleys under arrest.

The Manleys were handcuffed and transported in a paddy wagon for processing and then to jail. Bail was set, but they were unable to pay it, so they were taken to a state prison for approximately 10 days until their preliminary hearing. At the preliminary hearing, the prosecutors only presented evidence against Levoin, so the charges against the Manleys were dismissed for lack of evidence. Levoin was later convicted in federal court for possession of crack cocaine with intent to distribute and distribution of crack cocaine.

Following the dismissal of charges against the Manleys, the Commonwealth filed a forfeiture petition against them in the trial court. The petition sought the forfeiture of 5048 Tacoma Street because it was used to commit and/or facilitate violations of the Controlled Substance Act. The Manleys entered into a stipulation and agreement with the Philadelphia District Attorney's Office to settle the forfeiture action. In the stipulation and agreement, the forfeiture petition was withdrawn without prejudice. The Manleys were allowed to keep their house, but they agreed that it was used to commit and/or facilitate violations of the Controlled Substance Act, that the district attorney could prove such violations at trial, that the house would be forfeited if any future violations occurred, and that they would not transfer or lease the property to anyone without the prior permission of the Commonwealth.

After all of these events had occurred, the Manleys instituted the instant civil action against the Officers alleging civil conspiracy, false arrest/imprisonment, malicious prosecution and intentional infliction of emotional distress stemming from their arrest and the circumstances surrounding it. The complaint alleged that the Officers had no probable cause to arrest them and only did so in retaliation because Levoin could not provide any information to the Officers regarding the shooting two nights earlier. The Officers moved for summary judgment, which the trial court granted, holding that all counts were meritless because the Officers had probable cause to arrest the Manleys. This appeal followed.*fn2

Both sides agree that the causes of action cannot be maintained against the Officers if they had probable cause to arrest the Manleys for constructive possession of illegal narcotics because the elements of none of the causes of action could be met if the Officers had probable cause. The Manleys argue that the Officers did not have probable cause that they constructively possessed the confiscated drugs because there was no evidence that either of them ever exercised an intent to control the drugs. Rather, they were merely present in a house that contained narcotics, which is insufficient for constructive possession and would convert constructive possession into a strict liability crime. They contend further that the Officers knew they had no probable cause and arrested them solely because Levoin could not provide them with information concerning the shooting. The Officers contend that they arrested the Manleys solely because they had probable cause to do so, and that even if the alleged threats were true, they are immaterial and the outcome of the case would not change.

Normally, in a case such as this one, before we address the merits, we would consider whether the Officers are protected from the Manleys' claims by the tort immunity granted by the Political Subdivision Tort Claims Act.*fn3 However, the Manleys do not raise this issue at all, and the Officers only raise it for the first time at the very end of their brief without discussing it in any detail. While tort immunity can be raised at any time, Redland Soccer Club, Inc. v. Department of the Army and Department of Defense of the United States, 548 Pa. 178, 696 A.2d 137 (1997), because it was not briefed and it is not necessary to resolve this case, we will not address it.

Probable cause is a much lower standard than proof beyond a reasonable doubt, the standard that was extant in the above-cited cases. "Rather, probable cause is a reasonable ground of suspicion supported by circumstances sufficient to warrant that an ordinary prudent person in the same situation could believe a party is guilty of the offense charged." Turano v. Hunt, 631 A.2d 822, 825 (Pa. Cmwlth. 1993). See also Bruch v. Clark, 507 A.2d 854 (Pa. Super. 1986). Additionally, if probable cause is shown to exist, the arresting officer's motive, even if malicious, is immaterial. Turano, 631 A.2d at 824; Bruch, 507 A.2d at 856. Likewise, an acquittal or other adjudication of innocence at a subsequent proceeding does not establish a lack of probable cause at the time of arrest. Turano; McGriff v. Vidovich, 699 A.2d 797, 799 ...

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