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Cozzi v. City of Birmingham

United States Court of Appeals, Eleventh Circuit

June 19, 2018

JEFFREY COZZI, Plaintiff - Appellee,
CITY OF BIRMINGHAM, et al., Defendants, CEDRICK THOMAS, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:14-cv-01768-KOB

          Before ROSENBAUM and JILL PRYOR, Circuit Judges, and BARTLE, [*] District Judge.

          JILL PRYOR, Circuit Judge

         Jeffrey Cozzi was arrested for the robbery of one pharmacy and the attempted robbery of another. He was released after the police found no evidence linking him to the crimes. Cozzi sued Officer Cedrick Thomas, the City of Birmingham, Alabama, and several other law enforcement officers alleging, among other claims, a violation of his Fourth Amendment right to be free from what he contends was an unlawful arrest. The district court granted summary judgment in the defendants' favor on all charges except for Cozzi's unlawful arrest claim, brought under 42 U.S.C. § 1983, against Thomas. On appeal, Thomas argues that he is entitled to qualified immunity on that claim because he had, at a minimum, arguable probable to arrest Cozzi. After careful review, and with the benefit of oral argument, we affirm.

         I. BACKGROUND[1]

         On two consecutive days, a man demanding narcotics robbed a Walgreens pharmacy and attempted to rob a Rite Aid pharmacy. In both instances, the perpetrator wore a partial face mask and handed the pharmacy technician a note that said he was a bomb specialist carrying explosives. At the Walgreens, the man acquired two pill bottles, containing a total of six pills, inside a plastic Walgreens bag. The pills were alprazolam and buprenorphine. At the Rite Aid, the man demanded Lortab and Xanax but left empty handed.

         Thomas, a detective with the Birmingham Police Department, investigated the robbery, and another Birmingham Police detective investigated the attempted robbery. Due to the similarities between the two incidents, the detectives believed the same person had committed both offenses. Two witnesses from the Walgreens viewed a photo lineup and identified a man named James Hill as the perpetrator, but Thomas eliminated Hill as a suspect after being told that Hill was incarcerated at the time of the incidents.

         While the officers continued their investigation, a surveillance video of the attempted robbery was shown on Crime Stoppers, a television program designed to elicit tips and information from the public about unsolved crimes in the local area. After the video aired, Crime Stoppers received an anonymous tip that Cozzi "resemble[d] the subject featured for the bomb threat." Doc. 47-8 at 59.[2]According to the tipster, Cozzi had a tattoo that said "Lori" on his right hand and lived in Center Point, Alabama. Id.

         Meanwhile, a law enforcement officer with the Jefferson County Sheriff's Office received a similar tip from a confidential informant and sent it to Thomas.

         The informant stated that he recognized the person in the Crime Stoppers video as Cozzi based on a unique walking style; the hat and shoes the perpetrator wore; and the mask, which the informant said was similar to the kind Cozzi used for painting cars. The informant also provided Cozzi's address and said that Cozzi had a severe Lortab addiction and drove a purple pickup truck. After another officer drove by the given address and saw a purple truck parked outside, Thomas applied for and received a search warrant for Cozzi's home. When Thomas obtained the search warrant, the only evidence linking Cozzi to the crimes were the two tips, one anonymous and one from an informant unknown to Thomas, that Cozzi resembled the perpetrator in the crime scene surveillance video shown on television.

         Thomas and two other detectives arrived at Cozzi's house to execute the warrant. They encountered him outside, detained him there, and kept him handcuffed while they searched the inside of his house and truck. The officers found no mask, no note, and no clothing that matched the perpetrator's. They recovered from the bedroom a plastic bag containing 32 loose pills that they found in a night stand and two locked safes.[3]

         Cozzi's roommate, Michael Thompson, and Cozzi's girlfriend, Kara Antonoff, were home during the search. Thomas showed Thompson a photograph of the perpetrator taken at the crime scene. Thompson "could see from the picture it was not [Cozzi], " and explained to Thomas that the person in the photograph had "numerous tattoos up and down his arm, " but Cozzi had "only one tattoo." Doc. 50-4 at 1. Even though Cozzi was standing right outside while his home was searched, there is no evidence that the detectives viewed or asked about Cozzi's tattoo. Cozzi testified that Thomas inquired about his tattoo only after arresting and taking him to the police station. Thomas does not dispute that Thompson told him about the tattoo discrepancy or that he failed to follow up on it before arresting Cozzi.

         Thomas testified that during the search he showed Antonoff a photograph of the perpetrator, and she identified the person in the photograph as Cozzi. Antonoff disputed Thomas's testimony, however, admitting that she said Cozzi looked like the robber in the photograph, but explaining that she did so only after Cozzi had been arrested and taken to the police station. She denied being shown a photograph of the perpetrator before or during the search. On review of summary judgment, we must credit her testimony over Thomas's.

         Thomas arrested Cozzi and took him to the police station. Cozzi was questioned and released the next day after Thomas was unable to "find something that could substantiate a warrant for his arrest." Doc. 47-8 at 32-33. Cozzi later sued Thomas, the City of Birmingham, and several other detectives, alleging, among other claims, a claim under 42 U.S.C. § 1983 for unlawful arrest in violation of the Fourth Amendment. The district court granted summary judgment to the defendants on all claims except for the unlawful arrest claim ...

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