The opinion of the court was delivered by: Ludwig, J.
This is a civil rights case. 42 U.S.C. § 1983. Jurisdiction is federal question, 28 U.S.C. § 1331. On December 2, 2010, plaintiff Gary B. Saunders commenced this action by filing a complaint in the Court of Common Pleas of Montgomery County, and defendants*fn1 removed the action to this court. Discovery is complete, and defendants move for summary judgment, which will be granted for the following reasons.*fn2
The complaint consists of the following five counts: violation of plaintiff's right to be free from illegal search and seizure under the Fourth and Fourteenth Amendments and § 1983 (Count I); false arrest in violation of plaintiff's Fourth Amendment rights (Count II); state law conspiracy (Count III); violation of plaintiff's Fourth and Fourteenth Amendment rights (duplicative of Count I) (Count IV); state law claims - false arrest, false imprisonment, illegal search and seizure, abuse of process and malicious prosecution (Count V). See complaint (docket no. 1); and June 22, 2011 order granting in part defendants' motion to dismiss plaintiff's complaint (docket no. 17).
The gravamen of the complaint is that the individual defendants illegally obtained warrants for blood samples from plaintiff to determine his involvement in the robbery of an Ambler convenience store and, as a result, filed charges against him.
The summary judgment record shows the following:*fn3 On
December 31, 2006, at about 9:50 a.m., an armed robbery occurred at
the BP station at 90 West Butler Avenue in Ambler, PA. Complaint, ¶ 6.
Defendant Borkowski became involved in the investigation
the next day. Borkowski deposition testimony, at 9, Exhibit G to
defendants' memorandum. He sent to the Bethlehem state police lab
items of physical evidence obtained earlier - a motorcycle helmet, a
pair of white gloves, a jacket a pair of boots and a pair of pants.
Id. at 10-11. He reviewed statements given by Ken Huxley, an employee
of the convenience store at the time of the robbery,*fn4
and Mia Hatcher, who met plaintiff in the vicinity of the
robbery shortly after it occurred.*fn5 Id. at 12. He
learned that Ambler Police Officer Chad Cassel had seen plaintiff
coming from the SEPTA parking lot a short distance from the crime
scene a short time after the crime, wearing a black knit cap and a
black leather jacket. Complaint, ¶
12. Borkowski was aware that plaintiff had a prior history of
robbery. Borkowski N.T., at 13-14.
On January 3, 2007, Borkowski and Foley interviewed plaintiff at 1221 Bainbridge Street, in Philadelphia, a halfway house where plaintiff was then living. Complaint, ¶ 17. At that time, plaintiff was in the custody of the Pennsylvania State Corrections Department as a pre-release inmate.
Saunders deposition testimony, at 111-12, Exhibit C to defendants' memorandum.*fn6 When plaintiff asked to call his sister about hiring an attorney, the police told him he did not need one because he was not under arrest. Id. at 50-51. Both Borkowsi and Foley interviewed plaintiff. Foley asked plaintiff for an account of his activities on December 31, 2006, and if he had committed the robbery. Plaintiff denied having done so. Id. at 51; Borkowski N.T. at 18. The interview lasted over an hour. Saunders N.T. at 52.
At some time after the interview, Borkowski learned that DNA had been recovered from the glove retrieved following the robbery. Borkowski N.T. at 19-20. The state police told him it would need to obtain a blood sample from plaintiff to determine whether he could be excluded as a suspect. Id. at 20-21; 28. The next day, Borkowski applied for a search warrant with an affidavit of probable cause.
The application requested a warrant for "two vials of blood for DNA analysis and comparison purposes." March 14, 2007 warrant application, Exhibit B to defendants' memorandum. The accompanying affidavit of probable cause contained a description of the crime, referred to Huxley's and Hatcher's statements and Officer Cassell's identification of plaintiff in the area, described the retrieval of physical evidence and the interview with plaintiff, and his prior criminal record. See March 14, 2007 affidavit of probable cause, Exhibit B to defendants' memorandum. With respect to DNA testing, paragraph 8 of the affidavit stated:
Several pieces of clothing evidence and the toy gun were taken to the Pennsylvania State Police Lab in Bethlehem for processing. D.N.A. test will be performed on the items with Saunders as a suspect. Currently his D.N.A. profile is in the C.O.D.I.S. system. A sample of his blood is required to complete the testing process. Id.
After the warrant was issued, plaintiff's blood was taken. Saunders N.T. at 60-64. The test did not exclude plaintiff from the pool of potential matches to the DNA found on the glove. Affidavit of Lisa Shutkufski, Forensic Scientist, Pennsylvania State Police, ¶ 7, Exhibit H to defendants' memorandum. However, plaintiff's motion to suppress the blood sample was granted by a judge of the Court of Common Pleas of Montgomery County upon hearing. Suppression Hearing N.T. at 17-19.
Thereafter, two further warrants were obtained on probable cause affidavits. Responding to the deficiencies noted at the suppression hearing, Borkowski amended paragraph 8 of the affidavit of probable cause in support of the applications as follows:
Several pieces of the clothing evidence and the toy gun were taken to the Pennsylvania State Police lab in Bethlehem for processing. From the above mentioned gloves D.N.A. was obtained from them, which was then entered into a CODIS search. As a result, the DNA profile of a convicted offender (Gary Saunders, DOB: 10/27/1968, SID 1-79-57-34-1, FBI: 634020HA7, SSN# 186-50-3350) from the state of Pennsylvania could not be excluded from the DNA mixture profile obtained from the yellow glove. A sample of his blood is required to complete the testing process.
December 16, 2008 Affidavit of Probable Cause, ¶ 8, Exhibit B to defendants' memorandum. According to plaintiff, on January 30, 2009, following service of the third warrant, his blood was forcibly ...