B.C.R. Transport Co., Inc. v. Norman Fontaine, 727 F.2d 7, 1st Cir. (1984)

727 F.
2d 7
B.C.R. TRANSPORT CO., INC., et al., Plaintiffs, Appellees,

v.
Norman FONTAINE, et al., Defendants, Appellants.
No. 83-1335.
United States Court of Appeals,

First Circuit.
Argued Dec. 6, 1983.
Decided Feb. 8, 1984.
Mary E. O'Neil, Fall River, Mass., with whom John F. O'Donoghue, and
Law Offices of John F. O'Donoghue, Fall River, Mass., were on brief, for
Norman Fontaine.
Max Volterra, with whom Volterra, Goldberg & Mangiaratti Law
Counsellors, Inc., Attleboro, Mass., was on brief, for plaintiffs, appellees.
Before COFFIN and BREYER, Circuit Judges, and MALETZ, * Senior
Judge.
MALETZ, Senior Judge.
In September, 1980, plaintiffs-appellees B.C.R. Transport Co. (B.C.R.) and

Richard Restivo, together with Restivo's wife and daughter, brought a civil
rights action under 42 U.S.C. Sec. 1983 (1976) against defendant-appellant
Norman Fontaine and three other police officers. The gravamen of their
complaint was that the four officers allegedly conducted a wrongful search and
seizure of their property in violation of plaintiffs' Fourth Amendment rights. As
against defendant Fontaine the jury awarded a total of $150,000 in
compensatory damages and $5,000 in punitive damages to Richard Restivo, and
$75,000 in compensatory damages and $1,000 in punitive damages to B.C.R.
Although the jury returned a verdict against a second officer, he has not
appealed. Judgment was entered for the remaining officers. No liability was
found against any of the officers insofar as either of the Restivo women were
concerned. At the trial defendant Fontaine moved for a directed verdict,
judgment notwithstanding the verdict, and a new trial. These motions were all
denied, and it is from this that Fontaine appeals.

2
Defendant Fontaine raises five points on his appeal. The first is that as a matter
of law he cannot be found to have acted without probable cause since he
obtained search and arrest warrants on the basis of information furnished by a
complainant-victim. A closely related second contention is that even if he acted
without probable cause he nevertheless qualifies for immunity from suit under
section 1983, having acted upon a victim's complaint. Fontaine next argues that
plaintiff Richard Restivo is estopped from bringing a section 1983 action since
he failed to challenge the validity of the search warrant in a state criminal
prosecution. His fourth contention is that the evidence is insufficient to show
either that Fontaine searched B.C.R.'s property or that he did so in an
unreasonable manner. His final argument is that the $75,000 damage award to
B.C.R. is excessive and unsupported by the evidence.
We find no merit to any of these contentions. Accordingly, for the reasons that
follow, we affirm the district court's judgment.
I.
4
On the evening of April 9, 1980, the Swansea, Massachusetts police

department received a telephone call from a Swansea resident complaining that
a stranger with a suitcase was walking along the rural road in front of her home.
Defendant Fontaine responded to the call and confronted the stranger who
identified himself as John Hubbard of Williamstown, Massachusetts. Hubbard
was brought to the Swansea police station and placed in a cell. Under
questioning by Fontaine and another police officer, Hubbard told the officers
that he had agreed to work for an employee of B.C.R., Jack Riley, whom
Hubbard had met in Georgia. Upon their return to Massachusetts Hubbard
stated that Riley, and then later Richard Restivo, held Hubbard against his will
with force of arms and allegedly made him work without pay.
When Hubbard's wife learned that he had been arrested she telephoned
Restivo's wife, Beatrice, who had her daughter, Lori Ann Restivo, go to the
police station to see what the problem was. Upon her arrival there, Fontaine
asked the younger Restivo if Hubbard took drugs or narcotics since he seemed
to be affected by some kind of mind-altering substance. It appears that during
the time Hubbard was in police custody he was heard yelling obscenities and
repeating incoherent phrases.
The day after Hubbard was arrested his wife and family came to the police
station to visit him. Fontaine did not specifically question either Hubbard's wife
or Lori Ann Restivo regarding Hubbard's story, although he had abundant
opportunity to do so at the police station. Had Fontaine made inquiry he would
have discovered that the Restivos not only provided food, shelter and
employment for Hubbard, but that he was also free to leave the Restivo home
anytime. He was, in fact, treated more as a member of the Restivo family than
as a B.C.R. employee.
7
After confirming that Hubbard had no known criminal record, Fontaine applied
for and obtained search and arrest warrants, attaching in support thereof his
affidavit which outlined Hubbard's story. He and three other officers executed
the warrants on April 10, 1980.
Jack Riley and Richard Restivo were both arrested and then taken to the police
station. A B.C.R. tractor-trailer was also seized and taken to the Swansea police
station where it was later searched apparently by Fontaine and at least one other
officer. In addition a search was conducted of the Restivo home in the course of
which an unregistered firearm was discovered and seized. Richard Restivo was
eventually indicted on December 5, 1980, for assault, battery, kidnapping and
possession of an unregistered firearm. The county district attorney filed a nolle
prosequi for all but the firearm charge, and on this charge Restivo was
convicted.
Against this backdrop we consider Fontaine's first argument--that probable

cause for the warrants existed as a matter of law.
II.
10
The thrust of Fontaine's first contention is that when an officer obtains a

warrant based upon information supplied by an alleged victim of a crime,
probable cause to search, seize or arrest exists per se. While it is undoubtedly
true that probable cause determinations predicated on information furnished by
a victim are generally considered to be reliable, see, e.g., United States v.
Mahler, 442 F.2d 1172, 1174-75 (9th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct.
541, 30 L.Ed.2d 545 (1971), no court to our knowledge has ever adopted the
per se approach which Fontaine advocates here.1
11
The short answer to Fontaine's argument is that whether or not probable cause
exists in any given case invariably depends on the particular facts and
circumstances of that case, a question to be resolved by the trier of fact. See
Reeves v. City of Jackson, 608 F.2d 644, 651 (5th Cir.1979). We believe that
there was sufficient evidence from which the jury could have found that
Fontaine acted without probable cause. The record shows that Hubbard was a
drifter who had behaved incoherently while in police custody. Indeed, Lori
Ann Restivo testified that she could hear Hubbard talking in a loud voice at the
police station, that he was incoherent and sounded as if he was on drugs. This is
a fact which at least on one occasion was brought home to Fontaine who made
specific inquiry of Lori Ann Restivo as to whether Hubbard might be on drugs.
In addition, although there was evidence showing that Richard Restivo had had
an altercation with Swansea police officers some months before, there was no
evidence at trial showing that Restivo was well known to Swansea police as a
person with violent propensities.
12
Even though Fontaine may have been acting on information provided by an

alleged victim of a crime, this fact did not preclude the jury from finding that
probable cause did not exist in this case. See Scott v. Donovan, 539 F.Supp.
255, 258 (N.D.Ga.1982) (question of existence of probable cause is issue of
fact best determined by jury). To the contrary, we believe there was probative
evidence from which the jury could have reasonably concluded that probable
cause did not exist for the warrants which Fontaine obtained. We are, in sum,
not persuaded that the district court erred in this regard in denying Fontaine's
motions for directed verdict, judgment notwithstanding the verdict, and new
trial.
III.
13
Even if defendant Fontaine lacked probable cause for obtaining and thereafter
executing the warrants, he can still avoid section 1983 liability if he can
demonstrate his good faith in so doing. Walters v. City of Ocean Springs, 626
F.2d 1317, 1322 (5th Cir.1980). On this score, Fontaine's contention mirrors
his argument already advanced in connection with probable cause--he is
immune from suit, he contends, having acted on a victim's tip. Here again,
however, the question of qualified immunity is one of reasonableness--would a
reasonable person in the shoes of Fontaine have known he was violating
another's constitutional rights? Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). See also Pierson v. Ray, 386 U.S.
547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967). This determination,
being one turning on the reasonableness of Fontaine's conduct, was properly
left for the jury to resolve. Reeves v. City of Jackson, 608 F.2d at 650. We
believe that there was sufficient evidence to support the jury's finding that
Fontaine acted in bad faith.
14
First, Fontaine's affidavit baldly stated that he had contacted "gypsy" truck
drivers in the area who had heard of Jack Riley, that he was allegedly wanted
by the police in some unknown Massachusetts town, and that he was "a strange
character capable of anything." Yet there was no evidence offered at trial
corroborating or otherwise substantiating this statement. What is more, it is
difficult to discern good faith conduct on Fontaine's part when one considers
that Fontaine supposedly went to the trouble of contacting gypsy truck drivers
for corroboration, but failed to exhaust first-hand sources of information readily
available to him--Lori Ann Restivo and Hubbard's wife. Finally, after
confirming that Hubbard had no criminal record Fontaine saw fit to embellish
his affidavit with the gratuitous statement that Hubbard "seems to be an
upstanding citizen." From all of this an inference of bad faith on the part of
Fontaine could have been reasonably drawn by the jury. See Occidental Life
Insurance Co. v. Bob Leroy's Inc., 413 F.2d 819, 822 (5th Cir.) (where
inferences of good or bad faith must be made, jury has broad power), cert.
denied, 396 U.S. 939, 90 S.Ct. 373, 24 L.Ed.2d 241 (1969).
15
Fontaine may have been acting on a tip of an alleged crime victim. However,
this no more immunized him from liability under section 1983 than it
automatically established probable cause for the warrants he sought and
obtained. In short, the facts adduced at trial fully support the jury's finding of
bad faith. There was, therefore, no error in the district court's denial of
Fontaine's three motions on this ground.
IV.
16
We turn next to defendant Fontaine's collateral estoppel claim, namely, that

Richard Restivo is estopped from bringing a section 1983 action since he failed
to challenge the underlying probable cause for the search warrant at a prior
suppression hearing.
17
As already noted, during the execution of the search and arrest warrants an
unregistered firearm belonging to Restivo was seized. He was thereafter
indicted and convicted for unlawful possession of a firearm. Prior to Restivo's
trial on the possession charge he brought a motion to suppress evidence,
alleging that the specific firearm seized was outside the scope of the search
warrant, not having been particularized in that warrant. This motion was
denied. Although no other Fourth Amendment issues were litigated at the
suppression hearing or at Restivo's trial, Fontaine nevertheless argues that this
collateral proceeding precludes Restivo from challenging either Fontaine's good
faith or probable cause for obtaining the warrants.
18
Under collateral estoppel, "once an issue is actually and necessarily determined
by a court of competent jurisdiction, that determination is conclusive in

subsequent suits based on a different cause of action ...." Montana v. United
States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979) (emphasis
added). Accord Nevada v. United States, --- U.S. ----, 103 S.Ct. 2906, 2918 n.
11, 77 L.Ed.2d 509 (1983) (collateral estoppel can be used only to prevent
relitigation of issues actually litigated in a prior lawsuit). Since there is no
dispute that Restivo never litigated the issue of probable cause for the warrants
at his suppression hearing, we are of the view that collateral estoppel does not
bar Restivo's section 1983 action. See Mastracchio v. Ricci, 498 F.2d 1257,
1260 (1st Cir.1974), cert. denied, 420 U.S. 909, 95 S.Ct. 828, 42 L.Ed.2d 838
(1975). See also Haring v. Prosise, --- U.S. ----, 103 S.Ct. 2368, 76 L.Ed.2d 595
(1983) (prior guilty plea in state criminal proceeding did not estop plaintiff
from bringing section 1983 action for warrantless search, since legality of
search was never actually litigated in this state proceeding).
19
More importantly, even assuming that the probable cause issue was necessarily
decided in the state court proceeding, see Mastracchio, 498 F.2d at 1261,
insofar as Fontaine is concerned that determination would not be given
preclusive effect against Restivo under Massachusetts law. Commonwealth v.
Lopez, 383 Mass. 497, 420 N.E.2d 319, 321 (Mass.1981). And if preclusive
effect would not be accorded that state court determination by the courts of
Massachusetts, then it cannot be given such effect by a federal court. Migra v.
Warren City School District Board of Education, --- U.S. ----, 104 S.Ct. 892, 78
L.Ed.2d ---- (U.S. Jan. 23, 1984); Haring v. Prosise, 103 S.Ct. at 2373 n. 6 ("If
the state courts would not give preclusive effect to the prior judgment, the
courts of the United States can accord it no greater efficacy under [28 U.S.C.]
Sec. 1738. Union & Planters' Bank of Memphis v. Memphis, 189 U.S. 71, 75
[23 S.Ct. 604, 606, 47 L.Ed. 712], ..."); Kremer v. Chemical Construction
Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); Allen v.
McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980); 28
U.S.C. Sec. 1738 (1976).
20
In Massachusetts, collateral estoppel requires the concurrence of three

circumstances: "(1) a common factual issue; (2) a prior determination of that
issue in litigation between the same parties; and (3) a showing that the
determination was in favor of the party seeking to raise the estoppel bar."
Commonwealth v. Lopez, 420 N.E.2d at 321 (emphasis added). Thus, on the
second of these three criteria alone--mutuality of estoppel--Fontaine's claim of
collateral estoppel fails.2
21
While we agree with Fontaine that as a general matter collateral estoppel may
apply to section 1983 actions against police officers to recover for Fourth
Amendment violations, we reject his argument when applied to the specific

facts presented here.
V.
22
We consider, finally, Fontaine's two points involving plaintiff B.C.R. He

contends, first, that there was insufficient evidence to support a judgment in
favor of B.C.R. We disagree. There was evidence that the tractor-trailer was
sealed at the time it was seized, but had been broken into while in police
custody. The contents of the trailer--bags of rice hulls--had been torn open. In
addition, the interior of the tractor was slashed. It is undisputed--indeed,
Fontaine admits--that he and one other officer were present when the B.C.R.
tractor-trailer was searched. The fact that there may not have been any direct
evidence for the plaintiffs that this search was conducted by Fontaine certainly
did not prevent the jury from drawing the inference that it was Fontaine who,
nevertheless, was responsible for the damage to the B.C.R. property. See
Occidental Life Insurance Co., 413 F.2d at 822 ("A jury has broad power to
draw inferences from evidence, even when it is undisputed").
23
As for the damage award to B.C.R. of $75,000, the testimony of Mrs. Restivo,
B.C.R.'s president and principal stockholder, showed that B.C.R., which had
netted $1,000 per week prior to the search, had been destroyed as a business
entity as a result of the search and attendant publicity. This evidence, coupled
with the actual damage to B.C.R. property, was sufficiently probative to sustain
the jury's award. The award of $75,000 is not so excessive as to necessitate a
new trial on this issue. See Bullard v. Central Vermont Ry., 565 F.2d 193, 198
(1st Cir.1977).
VI.
24
For all the foregoing, we conclude that there was sufficient evidence to support
the jury's verdicts, and that the district court did not err in denying defendant
Fontaine's motions for directed verdict, judgment notwithstanding the verdict,
and new trial.
25
Affirmed.
Of the United States Court of International Trade, sitting by designation
In this connection we find it disingenuous on Fontaine's part to suggest that
since the magistrate issued the warrants, this judicial imprimatur is an

impregnable shield against any attack on the sufficiency of the underlying
affidavit. This is unquestionably bootstrapping. See Aguilar v. Texas, 378 U.S.
108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964) ("Although the
reviewing court will pay substantial deference to judicial determinations of
probable cause, the court must still insist that the magistrate ... not serve merely
as a rubber stamp for the police.")
2
We note in passing that the Massachusetts mutuality requirement is not in

keeping with the modern trend of cases. See, e.g., Nevada v. United States, --U.S. ----, 103 S.Ct. 2906, 2925, 77 L.Ed.2d 509 (1983) ("mutuality has been for
the most part abandoned in cases involving collateral estoppel")

B.C.R. Transport Co., Inc. v. Norman Fontaine, 727 F.2d 7, 1st Cir. (1984)

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727 F.

B.C.R. TRANSPORT CO., INC., et al., Plaintiffs, Appellees,

United States Court of Appeals,

In September, 1980, plaintiffs-appellees B.C.R. Transport Co. (B.C.R.) and

denied, and it is from this that Fontaine appeals.

On the evening of April 9, 1980, the Swansea, Massachusetts police

Against this backdrop we consider Fontaine's first argument--that probable

The thrust of Fontaine's first contention is that when an officer obtains a

Even though Fontaine may have been acting on information provided by an

We turn next to defendant Fontaine's collateral estoppel claim, namely, that

Under collateral estoppel, "once an issue is actually and necessarily determined

by a court of competent jurisdiction, that determination is conclusive in

In Massachusetts, collateral estoppel requires the concurrence of three

Amendment violations, we reject his argument when applied to the specific

We consider, finally, Fontaine's two points involving plaintiff B.C.R. He

Of the United States Court of International Trade, sitting by designation

In this connection we find it disingenuous on Fontaine's part to suggest that

since the magistrate issued the warrants, this judicial imprimatur is an

We note in passing that the Massachusetts mutuality requirement is not in

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