July 16, 2011
No Shit!: Court Of Appeals Of Iowa Implies Statement, "I Got You WIth Shit" Was Not An Admission Of Feces Throwing
During a road trip this week, my wife and I got into a discussion of why the word "shit" is a curse word (I don't remember what prompted the discussion). Why is "shit" a curse word, "crap" a quasi-curse word, and "poo" not a curse word? And why do we use certain animal feces in expressions? Why is something that is nonsense "bullshit" or "horseshit" and not "catshit?" I guess that calling someone "batshit crazy" makes sense because batshit -- guano -- really can make someone crazy. And calling a wimpy person "chickenshit" also makes sense because we also call wimpy people "chicken."
One consequence of using the word "shit" as a profanity is that we don't always know whether a person using the term is cursing or actually referring to feces. Or, at least that was the belief of the Court of Appeals of Iowa in its recent opinion in State v. Landis, 2011 WL 2694717 (Iowa.App. 2011).In Landis,
Steven Landis was an inmate....As correctional officer Raleigh Helmick reached down to retrieve a breakfast tray from the food portal of Landis's solitary confinement cell, Landis reached out his hand and squirted Helmick with a stream of brown liquid that smelled like human feces....Helmick immediately dropped the food tray and Landis dropped a toothpaste tube containing a brown substance. Landis started yelling, "I got you with shit." The brown substance soaked through Helmick's uniform shirt onto his t-shirt. He went downstairs to the kitchen area to clean up, and his soiled clothing was given to a supervisor. Throughout the rest of the day Landis told Helmick several times that it was "shit" in the toothpaste tube.
Landis was subsequently charged with assaulting Helmick with feces in violation of Iowa Code section 708.3B (inmate assault—bodily fluids or secretions). At trial,
Helmick testified the substance Landis sprayed him with "had a terrible odor, smelled like feces, was liquid and brown." Asked how he knew the substance was feces, Landis testified over objection that "[t]he odor, the texture, the color all led me to believe the fact that it was feces, the fact that in the past I have been around other staff who have been hit." He further testified the substance "was mostly liquid, but there were solid pieces in it."...Correctional Officer Kevin Koechle witnessed the assault by Landis. He testified: "Officer Helmick opened the flap, the food flap, the tray came flying out, and right after that Officer Helmick was covered in feces." Asked how he knew it was feces, Koechle responded: "It was a brown substance with a very strong smell of feces." He further testified he heard Landis say "I got you, Helmick. I threw shit on you." Randy VanWye, an investigator at the penitentiary, went to the scene of the assault and took possession of the toothpaste tube. There was still some liquid, semi-solid substance in it. He placed the tube in a paper bag. The tube drained itself into the bag in the evidence locker. VanWye said the contents of the tube had a "very, very disagreeable, very foul odor that was very noticeable of feces."VanWye observed that Helmick's soiled clothing had a "very, very disagreeable odor of feces." Photographs of the toothpaste tube, which is made of clear plastic, depict the tube containing a brown substance. The photograph of Helmick's white tshirt shows it covered in a brown substance.
Landis later moved for a judgment of acquittal, arguing "that with no testing and no expert testimony to establish the brown substance was feces, the jury would be left to speculation and conjecture with regard to an element of the crime, that is, whether the substance was in fact feces." The trial court denied the motion, Landis was convicted, and the Court of Appeals of Iowa affirmed, finding that
The jurors certainly were capable of comprehending the primary facts and of drawing correct conclusions from them. Indeed, it would be a rare person who had no personal experience with feces. We do not believe the identification of feces falls solely within the domain of expert testimony. Upon submission of the evidence, the jury was to decide whether the State had proved the elements of the crime charged and could use their common sense and daily experiences in determining whether the brown substance was feces....Paraphrase of an old adage seems apropos under the circumstances: If it looks like feces, if it smells like feces, if it has the color and texture of feces, then it must be feces. No witness with a degree in scatology was required, nor was scientific testing required to establish the fact the substance was feces.
I think that it is clear that this was the correct conclusion, but I find the court's later treatment of another claim by Landis to be odd. After reaching this conclusion, the court acknowledged Landis' claim that "his use of the word 'shit' in reference to the streamer that hit Helmick was not an admission the brown substance was in fact feces and could not therefore support his conviction." The court actually agreed with this argument, holding that
Although a reasonable juror could infer Landis's use of the word referred to feces, we agree Landis's statements, standing alone, would not constitute an admission sufficient to support his conviction.[FN1]
[FN1] “Shit” is defined as excrement. Webster's Third New Int'l Dictionary 2098 (1993). But, the word has also been defined as nonsense, foolishness, something of little value, trivial and usually boastful or inaccurate talk, and a contemptible person. Id. This now ubiquitous word has acquired numerous popular usages apart from its literal meaning. It has been used to describe people, places, and things and to express a wide variety of emotions such as disappointment, disgust, despair, resignation, amazement, awe, shock, anger, and surprise.
The court then gave a laundry list of examples, which you can find in the court's opinion. That said, the court still upheld the conviction, concluding that
While Landis's use of the word "shit" is certainly not dispositive of the issue of the composition of the brown substance he squirted on Helmick, the officers' description of the brown substance, along with their lay opinions the substance was feces, supplied substantial evidence to support Landis's conviction.
Again, I agree with the court's ultimate conclusion, but I am troubled by the court's seeming suggestion that it would of reversed had the officers not described the substance and/or offered opinion testimony that the substance was feces. Landis yelled, "I got you with shit" and later said several times that it was "shit" in the toothpaste. Sure, Landis could have been using the word "shit" in the non-literal sense to refer to something other than feces, but I think that his use of the word was certainly sufficient for a reasonable jury to find that he assaulted Helmick with bodily fluids or secretions.
(Hat tip to Dan Blinka for the link)
July 15, 2011
Express Yourself: Massachusetts Appeals Court Finds Bruton Doctrine Inapplicable To Witness Intimidation
Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. Thus, if Carl and Dan are charged with bank robbery and jointly tried before a jury, the prosecution could not introduce Carl's statement that "Dan and I robbed the bank" unless Carl testifies at trial. Conversely, if Carl's confession was that "someone and I robbed the bank," the prosecution could introduce it because it would not have facially incriminated Dan. But what if Carl's statement were a threat to a prospective witness against Carl and Dan that testimony would leave her vulnerable to 'deal with Dan's cousins and that she could end up dead? According to the recent opinion of the Massachusetts Appeals Court in Commonwealth v. Teixeira, 2011 WL 2610557 (Mass.App. 2011), such a statement is not facially incriminatory. I disagree.
In Teixera, the facts were as stated above, with Franco Dossantos and Antonio Teixera being jointly tried before a jury on charges of armed robbery, assault and battery by means of a dangerous weapon, and unlawful possession of a firearm. Dossantos did not testify at trial, and the prosecution had a witness for the prosecution testify "that Dossantos threatened her that testifying would leave her vulnerable to 'deal with [the defendant's] cousins and that [she] could end up dead.'"
After he was convicted, Teixera appealed, claiming, inter alia, that "he was denied effective assistance of counsel because his attorney never sought to sever his case from that of Dossantos following" this testimony. But, according to the Massachusetts Appeals Court,
"When a codefendant's statement does not expressly implicate the defendant but becomes inculpatory 'when linked with other evidence adduced at trial, generally a limiting instruction is sufficient to cure a violation of the defendant's confrontation rights.'"
And, according to the court,
We do not agree that Dossantos's extrajudicial statement "expressly implicated" the defendant. The statement referred not to the criminal activity for which the defendant and Dossantos were being tried, but to a potential witness's involvement in the trial. The defendant was not present when Dossantos made the statement, and it concerns not what the defendant did or might do, only potential future action by members of his extended family. Even acknowledging that the defendant was present, though silent, at the subsequent encounter [the witness] described, the statement is only inculpatory through "a series of inferences, none of which 'a jury ordinarily could make immediately, even were the [statement] the very first item introduced at trial.'"
I disagree. First, I think that it is completely irrelevant that Dossantos' statement did not refer to the crimes charged. There is no question that if Dossantos told the prospective witness that testifying would leave her vulnerable to deal with the defendant/Teixera, the statement would have expressly implicated Teixera and violated the Bruton doctrine.
Second, I don't think that the analysis changed because Dossantos' said that the prospective witness would have to deal with Teixera's cousin rather than Teixera himself. As is clear from the above block quote, the Bruton doctrine doesn't apply when the co-defendant's statement by itself leaves the jury with too much work to do. In the example from the introduction, when Carl says, "Someone and I robbed the bank," jurors would need to make a series of inferences to link the "Someone" to Dan. Maybe another witness testifies that he saw Carl and Dan walking to the bank. Maybe there's a surveillance video, and one of the robbers in the video fits the characteristics of Dan. But Carl' statement alone wouldn't automatically lead jurors to the conclusion that Dan was the other bank robber despite the fact that Dan is the other defendant (or so the theory goes).
But what are jurors supposed to think when Dossantos and Teixera are tried together and a prospective witness testifies that Dossantos told her she would have to deal with Teixera's cousins if she testified? Of course jurors would immediately make the necessary inference(s) to conclude that Teixera was involved in the crimes charged. I guess the court might technically be correct that the statement did not literally facially incriminate Teixera, but such a conclusion seems like empty formalism to me.
July 14, 2011
Maintaining Consistency: Court Of Appeals Of Minnesota Finds "Reasonably Consistent" Prior Statement Qualifies As Prior Consistent Statement
Minnesota Rule of Evidence 801(d)(1)(B) provides that
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness....
But does a prior statement have to be essentially the same as the declarant's testimony to qualify as a prior consistent statement, or can there be (minor) discrepancies? According to the recent opinion of the Court of Appeals of Minnesota in State v. Standifer, 2011 WL 2672025 (Minn.App. 2011), the statements can differ as long as they are "reasonably consistent."
In Standifer, Pen Dwaine Standifer was charged with three counts of criminal sexual conduct in February 2009 based on allegations that he sexually abused his foster child, A.R.F. At trial, A.R.F. testified concerning this sexual abuse, and Susan Carstens, a juvenile specialist from the Crystal Police Department, later testified about her interview with A.R.F. after the assault.
After he was convicted, Standifer appealed, claiming, inter alia, that the trial court erred in admitting Carstens' testimony under Rule 801(d)(1)(B) because A.R.F.'s statements to her were inconsistent with A.R.F.'s testimony at trial. Specifically, he claimed that
A.R.F.'s prior statements included some additional facts about what occurred before the abuse that made A.R.F. uncomfortable. For example, Carstens testified that A.R.F. told her that appellant had guns all over the house; but at trial, A.R.F. testified only that he was afraid that appellant had a gun in his hand during the abuse.
But according to the Court of Appeals of Minnesota, a prior statement is "consistent" with trial testimony for Rule 801(d)(1)(B) purposes as long as it is "reasonably consistent" with the witness' trial testimony. Conversely, a prior statement is not "consistent for Rule 801(d)(1)(B) purposes when additional or different facts in the prior statement affect the elements of the offense or add inflammatory information. Concluding that the additional/different facts in A.R.F.'s statement to Carstens did neither of these things, the Court of Appeals of Minnesota affirmed.
(It is also interesting to note that Minnesota allows for the admission of prior consistent statements as long as they are helpful to the trier of fact while Federal Rule of Evidence 801(d)(1)(B) only allows for their admission when "offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....")
July 13, 2011
Passive Aggressive?: Court Of Appeals Of Utah Finds Invited Errors Doctrine Precludes Rule 609(d) Appeal
Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
As the recent opinion of the Court of Appeals of Utah in State, ex rel. P.N., 2011 WL 2670451 (Utah.App. 2011), makes clear, however, the proscriptive language of Rule 609(d) does not matter if the invited error doctrine applies.In P.N., P.N. appealed from his adjudication of two counts of aggravated robbery and two counts of aggravated assault with a weapon or force. At trial,
During cross-examination of P.N., the prosecutor inquired about P.N.'s criminal history, and P.N. admitted to having "a history," whereafter defense counsel objected to the admittance of evidence pertaining to P.N.'s previous felony. In this case, the juvenile court judge was also the judge in the prior adjudication. The court informed defense counsel of this. Defense counsel, upon learning of the situation, did not request a recusal under section 63(b) of the Utah Rules of Civil Procedure. Instead, counsel affirmatively waived his objections to the admission of the prior adjudication evidence when he stated he would "[l]et that go because I think Your Honor has a memory and can't expunge that."
After his adjudication, P.N. appealed, claiming that the trial judge erred under Utah Rule of Evidence 609(d) by allowing for the admission of evidence of his previous felony. The Court of Appeals of Utah disagreed, finding that
When defense counsel's actions amount to an active, as opposed to a passive waiver of an objection, we may decline to consider the claimed error even if the error equates to plain error....A court may infer from the record whether defense counsel affirmatively waived the objection....Defense counsel's statement, in the case at hand, clearly demonstrates a decision to relinquish the objection to the prior adjudication evidence. As such, we do not consider this issue.
I kind of see the point of the Court of Appeals of Utah, but I kind of don't. The invited error doctrine makes sense because a party cannot create an evidentiary error and then complain about that error on appeal. But here, defense counsel initially objected to the admission of evidence of P.N.'s prior felony. It was then only after the trial judge informed defense counsel of his history with P.N. that defense counsel withdrew the objection.
Thus, defense counsel did not really invite the error. He did not introduce the evidence himself, and he initially objected to the admission of the evidence. I would regard defense counsel's behavior as more passive than active.
July 12, 2011
Tried And Prejudice: Supreme Court Of Connecticut Finds Presumed Prejudice When Prosector Invades A-C Privilege
A prosecutor invades a defendant's attorney-client privilege by reading privileged materials containing trial strategy. Even assuming that the invasion was not intentional, should the court presume prejudice? And assuming that the court does presume prejudice, should there be a presumption in favor of dismissal? According to the recent opinion of the Supreme Court of Connecticut in State v. Lenarz, 2011 WL 2638158 (Conn. 2011), the answer to both questions is "yes."In Lenarz, Patrick Lenarz
was charged in two informations, each alleging two counts of risk of injury to a child and one count of sexual assault in the fourth degree, in connection with the defendant's alleged conduct toward two children at a karate school in the town of Granby, where the defendant was an instructor....
Police later conducted a search of Lenarz's residence pursuant to a search warrant, and
The next day, at the defendant's arraignment, defense counsel advised the trial court...that certain materials in the computer were subject to the attorney-client privilege and asked the court to fashion orders to protect the defendant's rights. The court ordered that "any communications from [defense counsel] to [the defendant] or from [the defendant] to [defense counsel] remain unpublished [and] unread."
During its examination of the defendant's computer, the state laboratory discovered voluminous written materials containing detailed discussions of the defendant's trial strategy in the Granby cases. The state laboratory read and copied much of this material and transmitted it to the Simsbury police department along with its report. In turn, the Simsbury police department forwarded the materials and the report to the prosecutor. At a meeting between the prosecutor and defense counsel some time in September, 2005, the prosecutor provided defense counsel with a copy of the materials that he had received from the Simsbury police department.
Defense counsel then moved to dismiss the information, but the trial court ultimately denied the motions, and Lenarz convicted of risk of injury to a child. Lenarz's appeal eventually reached the Supreme Court of Connecticut, which held three things. According to the court,
we conclude generally that prejudice may be presumed when the prosecutor has invaded the attorney-client privilege by reading privileged materials containing trial strategy, regardless of whether the invasion of the attorney-client privilege was intentional. We further conclude that the state may rebut that presumption by clear and convincing evidence. Finally, we conclude that, when a prosecutor has intruded into privileged communications containing a defendant's trial strategy and the state has failed to rebut the presumption of prejudice, the court, sua sponte, must immediately provide appropriate relief to prevent prejudice to the defendant.
In reaching this conclusion, the court agreed with "[a] number of courts have held that, when the privileged communication contains details of the defendant's trial strategy, the defendant is not required to prove he was prejudiced by the governmental intrusion, but prejudice may be presumed." The court specifically held that
because the disclosure of such information is inherently prejudicial, prejudice should be presumed, regardless of whether the invasion into the attorney-client privilege was intentional. The subjective intent of the government and the identity of the party responsible for the disclosure simply have no bearing on that question.
And while the court acknowledged that the State could rebut this presumption, it concluded that
In the present case, even a cursory review of the materials reveals that the defendant was presumptively prejudiced by the prosecutor's intrusion into the privileged communications taken from the defendant's computer because the privileged materials contained a highly specific and detailed trial strategy. Moreover, because the state's case in Docket No. H12MCR–03–128673 was based entirely on the complainant's account of the defendant's conduct, and because the privileged communications contained highly specific facts relating to the credibility of the complainant and the adequacy of the police investigation in that case, the communications went to the heart of the defense. Finally, the communications contained statements by the defendant of how best to defend the case, as opposed to general trial strategy being conveyed by an attorney to the client.
Finally, while the court also acknowledged that the State could rebut the presumption that the action against Lenarz had to be dismissed, it determined, inter alia,
that a remand is not appropriate. Even if we were to assume that the state could have proved before trial that a less drastic remedy than dismissal would have been an adequate remedy, now that the case has been tried by the prosecutor who read the privileged communications, it clearly would be impossible to eliminate the potential for prejudice to the defendant with any other sanction. The prosecutor had had knowledge of the defendant's trial strategy during the one and one-half years preceding trial and, therefore, could use the information in preparing for trial. Indeed, the record strongly suggests that the prosecutor may have revealed the defendant's trial strategy to witnesses and investigators. In addition, consciously or unconsciously, the prosecutor's knowledge of the defendant's trial strategy may have affected his selection and examination of witnesses during trial, which is now a matter of public record.
(Hat tip to Ann Murphy for the link)
July 11, 2011
Just The Facts, Ma'am: Court Of Special Appeals Of Maryland Finds Confrontation Clause Covers Objective Facts
The Confrontation Clause states that
In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...
But does the Confrontation Clause cover only analytical and conclusory statements, or does it also cover "routine and descriptive and objectively ascertained and reliable facts?" According to a Maryland trial court, it only covers the former. According to the Court of Special Appeals of Maryland in its recent opinion in Green v. State, 2011 WL 2578562 (Md.App. 2011), it also covers the latter.
Anthony Green was...charged with attempted murder and various other offenses including first and second-degree assault, second and third-degree sexual offenses, reckless endangerment, use of a handgun in commission of a crime of violence, third-degree burglary, trespass, possession of a controlled dangerous substance, and sodomy. At the conclusion of Green's jury trial, the State nolle prossed the charge of possession of a controlled dangerous substance and the court granted a motion for judgment of acquittal as to the charge of sodomy, third-degree burglary, trespass, and one count of second-degree assault. The jury found Green guilty of third-degree sexual offense, fourth-degree sexual offense, second degree assault and reckless endangerment.
After he was convicted, Green appealed, claiming, inter alia,
that his right to confront witnesses against him...was violated when the trial judge allowed the State to introduce into evidence a redacted copy of a report that was prepared by a nurse employed by the Sexual Assault Center at Prince George's Hospital, even though the preparer of the report was not available to be cross-examined.
After the victim was allegedly sexually assaulted by Green, she was taken to the Sexual Assault Center at Prince George's Hospital, where a sexual assault forensic examiner (SAFE) nurse examined her and prepared a record concerning the victim's visit. At trial, the nurse did not testify, and the trial judge did not allow the nurse's entire record to be admitted, but he did allow the prosecution to admit a redacted version of the record which included a
diagram of a woman's body showing where on [the alleged victim's] body abrasions, scratches and a "puncture" were observed. The redacted record also included the page from [the alleged victim's] chart dealing with the nurse's physical examination, which included the nurse's observation that her examination of the victim's anus showed a non-bleeding "tear" at "6 o'clock and 4 o'clock" of "the anal folds."
According to the trial court, this procedure was proper because the admitted record
contained "routine and descriptive and objectively ascertained and reliable facts" and deleted statements that were "analytical" or that contained "conclusion."
The Court of Special Appeals of Maryland, however, found that this procedure violated the Confrontation Clause. According to the court,
What a witness says in any out-of-court statement, can be testimonial even if the statement concerns a "fact." For instance in Crawford, supra, the issue was whether Sylvia Crawford's out-of-court statement to a police officer (that she didn't see a knife or other weapon in the victim's hand) was testimonial....Whether she saw a knife or not was obviously a "fact." Nevertheless, the court held that the statement was "testimonial."...Likewise, what two of the victims said in Snowden (that a person they knew as Uncle Mike touched them in their vaginal area) was held to be testimonial even though what the declarants said was unquestionably a "fact."...Recently in Bullcoming v. New Mexico,... the Court said:
[M]ost witnesses, after all, testify to their observations of factual conditions or events, e.g., "the light was green," "the hour was noon." Such witnesses may record, on the spot, what they observed. Suppose a police report recorded an objective fact—Bullcoming's counsel posited the address above the front door of a house or the read-out of a radar gun. Could an officer other than the one who saw the number on the house or gun present the information in court—so long as that officer was equipped to testify about any technology the observing officer deployed and the police department's standard operating procedures? As our precedent makes plain the answer is emphatically "No."
July 10, 2011
Beast Of Burden: 7th Circuit Finds § 1983 Plaintiffs Bears Burden Of Proving Warrantless Search Not Justified By Exigency
Federal Rule of Evidence 301 provides that
In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
I haven't had the opportunity yet to discuss Rule 301 on this blog, but the recent opinion of the Seventh Circuit in Bogan v. City of Chicago, 2011 WL 2623504 (7th Cir. 2011), gives me my first chance.In Bogan,
Sharon Bogan brought [an] action under 42 U.S.C. § 1983, in which she claimed that two Chicago police officers, Matthew Breen and William Langley, had violated her rights under the Fourth Amendment of the Constitution of the United States when they entered and searched her home without a warrant.
After the jury returned a verdict in the officers' favor, Bogan appealed, claiming, inter alia,
that the district court's instruction on burden of proof constituted reversible error. According to Ms. Bogan, the burden of proof fell on the officers to establish that their actions were justified by exigent circumstances.
In response, the Seventh Circuit noted that
We have not addressed the precise question raised by this appeal: In a § 1983 warrantless-search action, in which the defendants claim that the search was justified based on exigent circumstances, which party bears the burden of proving the presence or absence of such circumstances?
But according to the court, in Valance v. Wiesel, 110 F.3d 1269 (7th Cir. 1997), it addressed the related question "of which party in a warrantless-search case bears the burden of establishing the plaintiff's consent—or lack of consent—to the search." In Wiesel, the Seventh Circuit noted that in Ruggiero v. Krzeminski, 928 F.2d 558 (2nd Cir. 1991), the Second Circuit held
that although a warrantless search generally is considered presumptively unreasonable, "[t]he operation of this presumption ... cannot serve to place on the defendant the burden of proving that the official action was reasonable." 928 F.2d at 563. The court concluded that at most, the presumption may require the defendant to produce evidence of consent or of some other recognized exception to the warrant requirement. Id. Yet once the defendant has done so, "the ultimate risk of nonpersuasion must remain squarely on the plaintiff in accordance with established principles governing civil trials." Id. (citing Fed.R.Evid, 301).
The Seventh Circuit agreed with this analysis in Wiesel, with its conclusion "informed by the nature of civil cases and the principle that, in civil cases, the plaintiff must bear the ultimate burden of nonpersuasion." Bogan tried to distinguish Wiesel by arguing that there is a "distinction between consent and exigent circumstances," but the Seventh Circuit disagreed, holding that
We do not find this distinction persuasive. No part of our analysis in [Wiesel] included reference to what information was uniquely available either to the plaintiff or to the defendant. Furthermore, Ms. Bogan does not point us to any Fourth Amendment cases for which this consideration played a role in determining the allocation of the burden of proof. To the contrary, as the Government demonstrates, other aspects of Fourth Amendment jurisprudence undermine Ms. Bogan's contention. For example, "a plaintiff claiming that he was arrested without probable cause carries the burden of establishing the absence of probable cause"...; however, whether an officer had probable cause for an arrest is wholly dependent upon the facts known to the officer at the time of the arrest.