the events occurred. Viewed in that context, Johnston's claims have no merit and must be dismissed.
State law applies to Johnston's FTCA claims as well as his state tort claims brought pursuant to 42 U.S.C. § 1983. See Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)("State law applies to an FTCA claim"); Cook v. Sheldon, 41 F.3d 73 (2d Cir. 1994)(where court applied state law elements of malicious prosecution tort to § 1983 claim). In New York, the elements of a false arrest/imprisonment claim are that (1) the defendant intended to confine the plaintiff (2) the plaintiff was conscious of the confinement (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged.
Bernard, 25 F.3d at 102. A finding of probable cause is a complete defense to an action for false arrest. Id. (citing Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985)).
The elements of a malicious prosecution claim are (1) the commencement of a criminal proceeding (2) which is ended or terminated in the plaintiff's favor (3) where there was no probable cause to believe that the plaintiff was guilty of the crime charged and (4) the defendants acted with actual malice. Cook, 41 F.3d at 79.
Thus, the existence of probable cause at the time of Johnston's arrest and prosecution is a complete defense to both claims. Because I believe that probable cause clearly existed when Johnston was arrested, his current claims fail.
Probable cause has been defined as the "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) (citations omitted). Stated differently, probable cause exists where the arresting party possesses knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of. See Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994). "Although an arrest cannot be based on a mere hunch . . . 'a probable cause determination does not require proof beyond a reasonable doubt, it is the mere probability of criminal activity, based on the totality of circumstances, that satisfies the Fourth Amendment.'" Dale v. Kelley, 908 F. Supp. 125, 133 (W.D.N.Y. 1995) (citations omitted), aff'd, 95 F.3d 2 (2d Cir. 1996). Indeed, the eventual disposition of the criminal charges is irrelevant to the probable cause determination.
In this case, Johnston was arrested based on a warrant issued by Magistrate Judge Fisher. Agent Quinn and other members of the investigating departments did not arrest Johnston without a warrant (as they might have done), but rather they presented their evidence supporting probable cause to Magistrate Judge Fisher. Normally, the issuance of a warrant by a neutral magistrate creates a presumption of probable cause. Golino v. City of New Haven, 950 F.2d 864 (2d Cir. 1991). The officers are entitled to rely on the issuing judge's decision that probable cause exists and the officers are shielded from any liability relating to the arrest if they relied on the judge's decision in good faith. United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984).
This presumption concerning issuance of the warrant can be overcome only by a substantial preliminary showing that the officer seeking the warrant "'knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit' or omitted material information, and that such false or omitted information was 'necessary to the finding of probable cause.'" Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993)(citing Golino, 950 F.2d at 870-71); see Franks v. Delaware, 438 U.S. 154, 155-156, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978); Simms v. Village of Albion, 115 F.3d 1098 (2d Cir. 1997).
Similarly, a grand jury indictment also creates a presumption of probable cause that can be overcome only by a showing that the indictment was procured by "fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." Bernard, 25 F.3d at 104 (citing Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983)).
The information contained in Agent Quinn's affidavit and the evidence presented to the grand jury were exceptionally strong and provided more than ample basis for the Magistrate Judge to issue the warrant and for the grand jury to return the indictment.
In his affidavit, Quinn stated that Johnston's mother Mildred positively had identified Johnston, as her son, from a bank surveillance photograph taken during one of the robberies. Indeed, Mildred provided a written statement.
Similarly, Johnston's brother David also positively identified Johnston, as his brother, from the same surveillance photograph. Quinn also stated that two parole officers who knew Johnston -- Harry Long and Mearle Heath -- noted a resemblance between Johnston and the person depicted in the surveillance photograph. Finally, Quinn stated that Linda Wolpert, one of the victim tellers, had positively identified Johnston as the robber from a six-photo array. Based upon these representations, Magistrate Judge Fisher issued a warrant for Johnston's arrest.
These same witnesses and others testified before the grand jury one month later. Wolpert's grand jury testimony was consistent with Quinn's representation, as was both Mildred and David Johnston's. Indeed, the Johnstons' testimony was even stronger than Quinn's earlier representation. Mildred Johnston's grand jury testimony, in relevant part, was as follows:
Q: When you saw this photograph back on January 11, 1994, did you recognize the person depicted in the photograph?
A: Just about right away.