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November 12, 1997


The opinion of the court was delivered by: LARIMER

 These civil actions arise out of plaintiff James Norman Johnston's ("Johnston") arrest and indictment on federal bank robbery charges in January 1994. The charges were dismissed approximately one year later, after Johnston had been detained for more than seven months.

 Johnston first sued the Town of Greece, the Greece Police Department, and various individual employees of the Town pursuant to 42 U.S.C. § 1983, alleging that their participation in his arrest and detention violated his Constitutional rights. Johnston also asserted supplemental state claims of false arrest/imprisonment and malicious prosecution against these same defendants based upon a separate and unrelated arrest for assault, in March 1995.

 Johnston later sued the United States and the Federal Bureau of Investigation (FBI), under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (FTCA) for false arrest/imprisonment and malicious prosecution as the result of the federal bank robbery charges. The two actions were consolidated pursuant to my Order dated February 6, 1997.

 Defendants all have moved for summary judgment dismissing both actions in their entirety. Defendants assert that none of Johnston's claims can be sustained because probable cause existed for his arrest and prosecution on the federal bank robbery charges, as well as his assault charge. I agree and, therefore, for the reasons set forth below defendants' motion is granted and the complaints in both cases are dismissed.


 In November 1993 two banks located in the town of Greece, New York, were robbed: a Marine Midland bank on November 17, 1993 and a First National Bank on November 26, 1993. Each was robbed in the middle of the day by a lone, white male, who handed a note to the teller stating his intentions and demanding money.

 Johnston was arrested on federal bank robbery charges (18 U.S.C. § 2113) on January 13, 1994. The robberies initially were investigated by both the Greece Police Department and the FBI, but Johnston was prosecuted on federal charges only. Johnston's arrest warrant was issued by United States Magistrate Judge Kenneth R. Fisher, and was based upon the supporting affidavit of FBI Agent James Quinn.

 A federal grand jury was convened and heard evidence on February 15, 1994, and Johnston was indicted that same day and charged with the two bank robberies.

 The indictment ultimately was dismissed by this Court on February 28, 1995, at the request of United States Attorney Bradley Tyler. Dismissal was sought pursuant to Fed.R.Crim.P. 48 and "in the interests of justice," because certain exculpatory evidence had come to light which convinced the Government not to press forward with the prosecution. *fn1"


 All defendants move for summary judgment, asserting that the two actions should be dismissed in their entirety because Johnston cannot satisfy the criteria necessary to establish his claims. Specifically, defendants assert that probable cause existed for both arrests, thus defeating a necessary component of Johnston's claims for both false arrest/imprisonment and malicious prosecution. *fn2" Defendants also seek attorneys' fees and costs.

 Summary Judgment Standards:

 Pursuant to Fed.R.Civ.P. 56(c), a moving party is entitled to judgment as a matter of law if there is "no genuine issue as to any material fact" and where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The burden is on the moving party to inform the court of the basis for its motion and to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). After the moving party has carried its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "The non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed.R.Civ.P. 56(e) (alteration in original)). Thus, summary judgment should be granted where the non-moving party's evidence is merely colorable, conclusory, speculative or not significantly probative. Ferreira v. Westchester County, 917 F. Supp. 209, 214 (S.D.N.Y. 1996)(citing Knight v. United States Fire Ins, 804 F.2d 9, 12-15 (2d Cir. 1986)).

 Federal Bank Robbery Charges:

 Johnston seeks money damages for his arrest and prosecution on the federal bank robbery charges. He bases his claims in part on information discovered well after his arrest and prosecution. Such an analysis is flawed, however. This case can only be analyzed in the proper context of what was known by the arresting officers at the time 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. *fn3" 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).

 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. *fn4" 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.
Q: Okay. How were you able to tell?
A: I know my son.
Q: And is that James Norman Johnston?
A: I would almost swear to it.
Q: Okay.. And that's what you told the agents and the officers ... on ...

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