Christopher F. Donahue v. James Gavin, et al.

In late 1990, State Troopers Pease and Girard were the
lead officers in an investigation of a marijuana distribution
ring involving a Berks County resident named "Erwin
Bieber." In June of that year, Pease learned that a
marijuana dealer in Albuquerque, New Mexico was
regularly placing telephone calls from Albuquerque to
southeastern Pennsylvania. The telephone numbers he was
calling were listed to a telephone in Montgomery County
and one in Berks County. The Berks County number was
assigned to a business called "Guitars East." Erwin Bieber
received mail at the address listed for that business.

Pease responded by acquiring information that included
Bieber's telephone toll records. Meanwhile, the Albuquerque
Police Department placed a pen register on the New Mexico
dealer's telephone line.3 A pen register was also installed on
the Montgomery County telephone that the New Mexico
dealer was calling. Pease also learned that another
telephone was registered to Bieber at the address of
"Guitars East." The Montgomery County telephone involved
in calls to and from Albuquerque was also frequently being
used in making calls to and from Bieber's telephones.

In late 1990, the Berks County District Attorney's Office
was asked to assist in the ongoing investigation the
Pennsylvania State Police were conducting into this
marijuana distribution ring, and Troopers Pease and Girard
informed the Berks County District Attorney's Office of the
information they had received from the Albuquerque Police
Department. Yatron was then the Berks County District
Attorney and James Gavin was an Assistant District
Attorney. On October 2, 1990, the State Police installed pen
registers on the two telephone lines registered to Bieber and
Guitars East pursuant to authorizations obtained from the
Berks County Court of Common Pleas.

Yatron and Gavin eventually filed two applications with
the Pennsylvania Superior Court seeking authorization to
conduct non-consensual electronic surveillance on Bieber's
two telephone lines.4 The application included an affidavit
signed by Troopers Pease and Girard. The Superior Court
granted the application and entered orders authorizing
interception of wire and oral communications on Bieber's
two telephone lines.

Trooper Pacelli installed and activated monitoring
equipment on Bieber's telephone lines pursuant to those
authorizations.5 Thereafter, from October 12, to November
17, 1990, Pease, Girard, and other Troopers working with
them listened to the telephone calls to and from Bieber's
two telephones.6 The monitored conversations included
discussions between Bieber and Donahue.

State Police had not been aware of Donahue before they
began monitoring Bieber's telephone conversations.

However, once they began monitoring those calls, the State
Police heard and recorded a number of conversations
between Bieber and a "Christopher Donahue" residing at
1503 Callowhill Road in Perkasie, Pennsylvania.

We need not reiterate the rather involved chronology of
the investigation that followed, the content of the many
conversations that police recorded between Bieber and
Donahue, or the results of the surveillance the police
conducted while monitoring those calls. For our purposes,
it is sufficient to note that the numerous discussions
between Bieber and Donahue implicated both of them in a
large conspiracy to distribute substantial quantities of
marijuana in and around Berks County, Pennsylvania.
Eventually, police learned that Bieber was receiving
marijuana from sources in California and New Mexico and
distributing it to several people in Pennsylvania, including
Donahue.

On November 17, 1990, police followed Bieber to
Philadelphia International Airport where he met two other
men with suitcases. Police followed the trio from the airport
to 1503 Callowhill Road, Donahue's residence. Police
maintained surveillance as Bieber and his companions then
drove to a trailer home owned by Steve Hartman. Police
arrested the trio along with Hartman shortly after they left
Hartman's trailer.

Bieber began to talk to the police almost immediately. He
told Trooper Pease that he recently received 16 pounds of
marijuana from suppliers in California and that he had
delivered all 16 pounds to Donahue on November 7, 1990.
Police arrested Donahue after additional investigation, and
charged him with conspiracy to distribute marijuana,
conspiracy to participate in a corrupt organization, and
possession of marijuana with the intent to distribute. The
arrest warrant for Donahue was based upon a criminal
complaint that incorporated an affidavit of probable cause
that Pease and Girard signed.

Donahue filed a suppression motion prior to trial. He
argued that the electronic surveillance had been initiated
and maintained in a manner that violated the Pennsylvania
Wiretapping and Electronic Surveillance Control Act, 18 PA. CONST. STAT. ANN. SS 5701-5748. After the suppression
motion was denied, Donahue proceeded to trial before a
jury.

Bieber was one of the prosecution witnesses at that trial.
He testified about his extensive drug dealings with
Donahue, including the aforementioned delivery of 16
pounds of marijuana on November 7, 1990. The jury
convicted Donahue of all the charges against him.

On direct appeal, the Pennsylvania Superior Court
reversed and ordered a new trial. That court held that,
given Bieber's testimony, the trial court committed
reversible error in not giving a "corrupt source" jury
instruction. Commonwealth v. Donahue, 630 A.2d 1238,
1246-47 (Pa. Super. 1993).7 However, the court rejected all
of Donahue's other arguments, including his argument that
his suppression motion should have been granted because
the electronic surveillance was contrary to law. Id. at 278-
281.8 Donahue's Petition for Allowance of Appeal to the
Pennsylvania Supreme Court was denied. Donahue v.
Commonwealth, 645 A.2d 1316 (Pa. 1994).

In January of 1997, the Berks County Court of Common
Pleas dismissed the corrupt organizations charges against
Donahue based upon intervening changes in the applicable
case law. At that point, Donahue had already spent more
than two and one-half years in prison on his sentence. The
Berks County District Attorney concluded that Donahue
would not receive any additional incarceration if he were to
be convicted in a retrial pursuant to the Superior Court's
remand. Accordingly, the Assistant District Attorney who
was then assigned to the case asked the trial court to enter
a nolle prosequi ("nol pros"), thereby terminating the
prosecution. The state court granted that request, and
those charges that remained after the remand were
dismissed.

In April of 1995, Donahue filed a two-count complaint in
the district court pursuant to 42 U.S.C. S 1983. He sought
monetary damages against Berks County as well as Yatron,
Gavin, Pease, and Girard, based upon the electronic
surveillance that had been conducted during the 1990-91
investigation and prosecution. In Count I of his complaint,
he alleged an illegal search and seizure in violation of the
Fourth, Fifth and Fourteenth Amendments. Count II alleged
violations of the Pennsylvania Wiretapping and Electronic
Surveillance Act, 18 PA. CONST. STAT. ANN. SS 5701-5748.

The defendants moved for summary judgment or
dismissal under Fed. R. Civ. P. Rule 12(b)(6), based upon
the applicable statutes of limitations. The district court
agreed, and entered orders dismissing the suit on January
4, 1996. Donahue did not appeal.

* * *

In 1998, Donahue filed another civil action based upon
the aforementioned investigation and prosecution. The
complaint asserted: a S 1983 Fourth Amendment claim for
malicious prosecution against Berks County, Yatron, Gavin,
Pease and Girard (Count 1); a S 1983 Fourth Amendment
illegal search and seizure claim against D.A. Gavin,
Assistant D.A. Yatron, several Troopers involved in the
electronic monitoring, including Pease and Girard,
Pennsylvania Deputy Attorney General Richard Patton,
First Savings Bank of Perkasie, First Savings employee
Robert Schwartz and Berks County (Count II);9 a S 1983
deprivation of property claim against Patton, Schwartz and
First Savings (Count III);10 claims for a violation of the Right
to Financial Privacy Act, 12 U. S. C. SS 3401-3422, against
First Savings and Loan and an employee of that bank 11
(Count IV); and various claims of violations of the
Pennsylvania Wiretapping and Electronic Control Act
against Gavin, Yatron, Pease, Patton, Trooper Jeffrey
Hawbecker and Montgomery County District Attorney
Michael Marino (Counts V-VIII).

The defendants filed various motions to dismiss under
Fed. R. Civ. P. 12(b)(6) and for judgment on the pleadings
under Fed. R. Civ. P. 12(c). By Memoranda and Orders
dated December 8, 1998 and March 12, 1999, the district
court dismissed all but one claim and most of the
defendants. See Donahue v. Gavin, 1999 WL 165700 (E. D.
Pa. 1999). The court held that all federal claims for
unlawful search and seizure against Berks County, Yatron,
Gavin, Pease and Girard were precluded both by the
judgment in the 1995 action and by the applicable statutes
of limitations. It also ruled that all claims under the
Pennsylvania Wiretapping and Electronic Surveillance
Control Act were barred by the statute of limitations.

As a result of that ruling, the only claim remaining was
Count I - the S 1983 claim for malicious prosecution under
the Fourth Amendment. However, the district court ruled
that that claim could only be asserted against Berks
County, Yatron, Gavin (the "County Defendants") and Pease
and Girard (the "State Defendants"), and the suit proceeded
to discovery. At the close of discovery, all of the remaining
defendants moved for summary judgment. The County
Defendants argued that they had either absolute or
qualified immunity. The State Defendants argued that
Donahue could not establish a Fourth Amendment violation
as a matter of law, and that even if he could, they were also
entitled to qualified immunity.

Donahue opposed the defendants' summary judgment
motions and also filed a motion to suppress all of the
evidence derived from the electronic surveillance. He argued
that suppression was required because the wiretap
evidence was obtained in violation of Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18
U.S.C. SS 2510-2520. The district court granted each of the
defendants' motions for summary judgment. The court held
that the County Defendants had absolute immunity and
that the State Defendants had qualified immunity. Donahue
v. Gavin, 2000 WL 772819 (E. D. Pa. 2000).

This appeal followed. Donahue only appeals the grant of
summary judgment in favor of the State and County
Defendants on the S 1983 malicious prosecution claim.12 No
other issues are before us.

The essence of Donahue's S 1983 malicious prosecution
suit against the State Defendants is that Pease and Girard
lacked probable cause to initiate the criminal proceedings
against him. Similarly, the essence of his S 1983 malicious
prosecution claim against the County Defendants is that
Yatron and Gavin did not have probable cause to prosecute
him. As noted, both the County Defendants and the State
Defendants asserted qualified immunity.

Donahue attempts to establish this absence of probable
cause in a unique manner. He asks the court to suppress
the very evidence that would be relevant to determining if
the defendants had probable cause. He argues that the
suppression remedy contained in Title III of the Omnibus
Crime Control and Safe Streets Act of 1968, 18 U.S.C. SS 2510-2520,14 is not restricted to criminal prosecutions.
See Br. of Appellant, 17-20. Accordingly, Donahue claims
that the district court should have ruled on his suppression
motion before determining whether defendants were
protected by any form of immunity. He argues:

The motion to suppress should have been ruled upon
-- and granted -- first. The Court should not have
considered the wiretap evidence in ruling on the
summary judgment motions because Defendants
obtained and used this material illegally.

Id. at 16.

Government officials exercising discretionary functions
have qualified immunity from suits seeking damages under
S 1983 "insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known." Harlow v.
Fitzgerald, 457 U. S. 800, 818 (1982); see also Wilson v.
Russo, 212 F.3d 781, 786 (3d Cir. 2000) ("According to the
doctrine of qualified immunity, law enforcement officers
acting within their professional capacity are generally
immune from trial insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.")(citations
and internal quotations omitted).

As noted above, the district court decided this case on
grounds of the defendants' immunity and concluded that it
did not need to address the applicability of Title III's
suppression remedy. Although we agree that the defendants
are entitled to judgment, we conclude that the district court
should not have reached the issue of the defendants'
qualified immunity without first addressing whether
Donahue even alleged a civil rights claim. The Supreme
Court has held that courts must "determine first whether
the plaintiff has alleged a deprivation of a constitutional
right at all" when a government official raises qualified
immunity as a defense to an action under S 1983. County
of Sacramento v. Lewis, 523 U. S. 833, 842 n.5 (1998).

Donahue concedes that the County Defendants have absolute
immunity with regard to their actions during the judicial phase of his
prosecution. However, he attempts to circumvent that immunity by
alleging that they engaged in misconduct in the investigative phase.
More particularly, he points to their roles in gathering evidence, his
allegation that they fabricated evidence, his allegations of false swearing
on an arrest warrant, his allegations of their covering up the illegal
wiretaps and his allegations that they made false statements in press
conferences they held. "Evidence obtained at or after the filing is likely
to be connected with an existing prosecution, and is absolutely
protected." Kulwicki, 969 F.2d at 1465. However, a prosecutor is not
entitled to absolute immunity when holding a press conference, or when
he allegedly fabricated evidence concerning an unsolved crime. Kalina,
522 U.S. at 126.

Accordingly, in Sherwood v. Mulvihill, 113 F.3d 396 (3d Cir.
1997), we stated:

Where a defendant asserts a qualified immunity
defense in a motion for summary judgment, the
plaintiff bears the initial burden of showing that the
defendant's conduct violated some clearly established
statutory or constitutional right. Only if the plaintiff
carries this initial burden must the defendant then
demonstrate that no genuine issue of material fact
remains as to the objective reasonableness of the
defendant's belief in the lawfulness of his actions. This
procedure eliminates the needless expenditure of
money and time by one who justifiably asserts a
qualified immunity defense from suit.

Id. at 399 (citations omitted, and internal quotation marks
omitted)(emphasis added).

Determining whether plaintiff has alleged a violation of a
statutory or constitutional right is, therefore, the threshold
issue, and the Supreme Court has clearly instructed that
we must not "assum[e], without deciding, this preliminary
issue." Seigert v. Gilley, 500 U. S. 226, 232 (1991). Thus,
the district court should only have considered the
defendants' claim of immunity if Donahue first established
that their conduct violated a clearly established statutory or
constitutional right. Wilson v. Russo, 212 F.2d at 786
(courts "should . . . proceed to determine whether that right
was clearly established at the time of the alleged
violation."). Accordingly, "we begin [our analysis] with the
predicate question of whether [Donahue's] allegations are
sufficient to establish a violation of a constitutional right at
all." Sherwood,113 F.3d at 399 (citations and internal
quotations omitted).

* * *

Prior to 1994, we allowed plaintiffs to bring malicious
prosecution claims under S 1983 by alleging the common
law elements of the tort. See Lee v. Mihalich , 847 F.2d 66,
69-70 (3d Cir. 1988). In order to prove malicious
prosecution under Pennsylvania law the plaintiff had to
prove: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff 's favor; (3) the
proceeding was initiated without probable cause; and (4)
the defendants acted maliciously or for a purpose other
than bringing the plaintiff to justice. Hilfirty v. Shipman, 91
F.3d 573, 579 (3d Cir. 1996)(citing Haefner v. Burkey, 626
A.2d 519, 521 (Pa. 1993)). We had always assumed that by
proving a violation of the common law tort, the plaintiff
proved a violation of substantive due process that would
support a S 1983 claim for malicious prosecution suit. See
Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir.
1998)(citing Lippay v. Christos, 996 F.2d 1490, 1502 (3d
Cir. 1993)).

However, the Supreme Court's decision in Albright v.
Oliver, 510 U. S. 266 (1994), significantly changed that
legal landscape. There, Albright was released on bail after
surrendering on an outstanding arrest warrant. The
criminal prosecution was ultimately dismissed because the
charges did not constitute an offense under state law.
Thereafter, Albright filed a S 1983 action against Oliver, the
police officer who had obtained the arrest warrant. Albright
claimed that Oliver had deprived him of his Fourteenth
Amendment substantive due process right to be "free from
criminal prosecution except upon probable cause." Id. at
269.

Chief Justice Rehnquist, writing for a plurality of four
justices, noted that Albright's claim was "a very limited one"
that did not raise procedural due process or Fourth
Amendment claims. Id. at 271. The plurality then
commented that "as a general matter, the Court has always
been reluctant to expand the concept of substantive due
process, preferring, instead, to limit substantive due
process protections to matters relating to marriage, family,
procreation, and the right to bodily integrity." Id. at 271-72.
Consequently, the plurality believed that Albright's claim
"to be free from prosecution except on the basis of probable
cause is markedly different" from the generally recognized
type of substantive due process protections" and held that
"[w]here a particular amendment provides an explicit
textual source of constitutional protection against a
particular sort of government behavior, that Amendment,
not the more generalized notion of substantive due process,
must be the guide for analyzing these claims." Id. at 272,
273.

Accordingly, the plurality held that "substantive due
process, with its scarce and open-ended guideposts,"
provided no relief. Id. at 275. However, while the plurality
"express[ed] no view" as to whether the Fourth Amendment
would provide relief to Albright, it intimated that Albright
could have obtained some relief under the Fourth
Amendment had he raised that issue. Id. at 274. Other
members of the Court agreed. Id. at 814-817 (Ginsburg, J.,
concurring in judgment); id. at 281 (Kennedy, J.,
concurring in judgment and joined by Thomas, J.); id. at
288-89 (Souter, J., concurring in judgment).

In Gallo v. City of Philadelphia, supra, we had our first
opportunity to consider Albright's impact upon our S 1983
malicious prosecution jurisprudence. There, a federal grand
jury indicted Gallo for arson. "He never was arrested,
detained, or handcuffed" following indictment, but certain
restrictions were imposed upon him in lieu of bail. 161 F.3d
at 219. Gallo subsequently discovered that the local fire
marshal had altered his original report so as to suggest
that a fire at Gallo's warehouse had been caused by arson
rather than a faulty electrical appliance. The fire marshal
had also changed his report to corroborate that accusation.

Gallo was acquitted after his defense counsel vigorously
cross-examined the fire marshal about the discrepancies in
his report. Following his acquittal, Gallo brought aS 1983
civil rights action against the fire marshal and others who
had been involved in his prosecution. He alleged that the
defendants "had caused the federal government to
prosecute him without probable cause." 161 F3d at 220.

The district court construed Gallo's S 1983 action as one
for malicious prosecution and held that, under Albright,
Gallo must show a Fourth Amendment violation in order to
prove the malicious prosecution constituted a
constitutional injury. However, inasmuch as Gallo was
never detained on the charges, he could not establish a
constitutional injury.

* * *

Accordingly, we are constrained to hold that Donahue
has not met his burden of demonstrating that the
defendants' "conduct violated some clearly established
statutory or constitutional right." Sherwood , at 399. The
district court noted this defect and stated: "[s]ince I need
not decide the issue, . . .[ ] I express no view as to whether
plaintiff 's post-conviction incarceration violates some other
constitutional provision, such as the procedural component
of the Due Process clause[ ]." 2000 WL 772819. However,
Donahue's S 1983 action is limited to a Fourth Amendment
violation based upon malicious prosecution. We need go no
further.

Affired

Unknown

Unknown