Jermaine Sutton v. Metro Gov't of Nashville , 612 F. App'x 308 ( 2015 )


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  •                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 15a0362n.06
    No. 14-5859
    UNITED STATES COURTS OF APPEALS
    FOR THE SIXTH CIRCUIT
    JERMAINE SUTTON,                                     )
    )                  FILED
    Plaintiff-Appellee,                           )             May 14, 2015
    )
    DEBORAH S. HUNT, Clerk
    v.                                                   )
    )
    METROPOLITAN GOVERNMENT OF                           )
    NASHVILLE & DAVIDSON COUNTY, et al.,                 )
    ON APPEAL FROM THE
    )
    UNITED STATES DISTRICT
    Defendant,                                    )
    COURT FOR THE MIDDLE
    )
    DISTRICT OF TENNESSEE
    and                                                  )
    )
    RICHARD MARTIN, in his individual and official       )
    capacities as a Metro Police Officer,                )
    )
    Defendant-Appellant.                          )
    )
    BEFORE:       BOGGS, SUHRHEINRICH, and WHITE, Circuit Judges.
    SUHRHEINRICH, Circuit Judge.
    This is a second interlocutory appeal by Defendant Richard Martin. He appeals the
    district court’s order denying his motion for summary judgment based on qualified immunity.
    We affirm.
    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    I. BACKGROUND
    A. Facts
    The district court on remand provided a thorough summary of the facts that we
    incorporate here:
    During the evening of April 21, 2009, John Szcerbiak
    (“Szcerbiak”), a Kroger loss prevention officer, observed a black
    male placing packages of baby-back ribs in the waistband of his
    pants. Szcerbiak contacted John Bouchard, another loss prevention
    officer, and instructed him to try to cut the suspect off at the front
    of the store. While being followed by Szcerbiak, the suspect
    became alarmed and started running around the store, during which
    time packages of ribs and a cell phone fell to the ground. After a
    couple of minutes, the suspect ran outside the store with Bouchard
    in pursuit. Bouchard chased the subject across the Kroger parking
    lot and into the woods. Bouchard claims that the suspect was at
    least “six-two, six-three,” with bushy hair and a beard that
    appeared to have been growing for several days.
    After chasing the suspect into the woods, Bouchard called 911 at
    6:20 p.m., and identified the suspect as a black male wearing a red
    and black plaid jacket or shirt, and blue jeans.FN1 Officer Martin
    responded to the call.
    FN1. Bouchard told the dispatcher that during the encounter
    the suspect’s jacket was pulled off. Since this may have been a
    reference to the “red and black plaid jacket or shirt,” the Court
    will limit this description going forward to a thief wearing blue
    jeans.
    The Kroger store is on Old Hickory Boulevard, across a multi-lane
    street from Summit Medical Center (“Summit”). Officer Martin
    claims that after arriving at the Kroger store he was told the
    suspect was a black male of medium build and approximately 6
    feet tall. Szcerbiak told Martin that he could positively identify the
    suspect if he were to see him again, and that he desired to press
    charges were the suspect caught.
    Using the cell phone recovered at the scene, Officer Martin called
    the first contact in the phone. This contact turned out to be Arginer
    Richardson who, when asked if she knew anyone in the area where
    the cell phone was found, told Officer Martin that her godson,
    Jermaine Sutton, worked at Summit. Officer Martin ran a computer
    check on “Jermaine Sutton” and found that individual had a
    -2-
    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    criminal history (although no felony convictions or any convictions
    for theft). The picture associated with the name was that of an
    African American male with a medium build. According to the
    dispatch call recordings, Officer Martin radioed another officer and
    told him that the suspect was “working up here at Summit,” and
    that he was “gonna run-up in here real quick and try to get him.”
    Officer Martin’s drove to Summit to speak with Jermaine Sutton
    and was directed by security to the cafeteria where Plaintiff was
    working. When asked by Officer Martin about the phone found at
    the Kroger store, Plaintiff produced his own cell phone. This
    apparently did not allay Officer Martin's suspicions because, in his
    experience, criminal suspects are likely to have more than one cell
    phone.
    Plaintiff is a black male and stands 5′10″. When approached by
    Officer Martin, Plaintiff was clean cut and beardless. He was
    wearing black hospital scrubs and nice shoes.
    On the day in question, Plaintiff worked the 10:45 a.m to 7:15 p.m.
    shift as a utility assistant in the kitchen. He claims that he took a
    lunch break from 1:00 to 1:30 p.m., and then a smoke break from
    5:45 to 6:00 p.m. Plaintiff claims that he drove around the
    perimeter road of Summit during his smoke break because the
    hospital is a smokefree campus.
    Between 7:00 and 7:15 p.m., Plaintiff was working the dishwasher
    when he was told by the cashier that someone was there to see him.
    He went into the cafeteria and was met by four officers. Officer
    Martin was the first to speak and began by asking Plaintiff about
    the location of his phone. Officer Martin then asked Plaintiff what
    he thought the odds were that someone listed in the contacts of the
    cell phone found at the Kroger store would give police his name.
    Plaintiff responded that he did not know, but that the cell phone
    was not his.FN2 Plaintiff also claims that Officer Martin said that
    he (Plaintiff) looked “like a player” and could have two phones so
    that his wife would not know that he was “messing around on
    nurses.”
    FN2. As it turns out, the cell phone belonged to David Booker.
    During the discussion in the cafeteria, one of the officers said that
    Plaintiff had mud on his shirt from when he fell in the creek.
    Plaintiff did not know what he was talking about and said that the
    dirt on his shirt was from food particles from cleaning the dish-
    washing machine.
    -3-
    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    At some point, Officer Martin asked Plaintiff to sign a citation in
    lieu of being taken into custody. However, Plaintiff refused
    because he did not want to admit to something that he did not do
    and would lose his job were he to sign the citation.
    According to Victoria Ndiaye, another utility worker, she worked
    with Plaintiff the entire day of the incident. They both took a break
    at around 5:45 p.m. that would have lasted no more than 10
    minutes because they had to be back on the line by 6:00 p.m.,
    although she concedes that during the break she went to the break
    room while Plaintiff went outside to smoke. She also claims that
    the spots on Plaintiff's clothing were from the foam used to clean
    the dish machine. She claims that she told the officers that Plaintiff
    had been at work with her, but the officers did not seem interested
    in hearing from her.
    After approximately 15 to 20 minutes, Plaintiff, flanked by Officer
    Martin and another officer, was escorted from the cafeteria to the
    visitor's entrance at the front of the hospital. After approximately
    two to three minutes, Mr. Szcerbiak and Mr. Bouchard arrived by
    car and stopped five to seven car lengths from Plaintiff and the
    officers. Mr. Szcerbiak immediately identified Plaintiff as the
    shoplifter.
    Officer Martin handcuffed Plaintiff and put him in the back seat of
    his police car. Again Plaintiff was given the opportunity to sign a
    citation, but he refused.
    Plaintiff was then driven to the Kroger store and, upon arrival,
    Officer Martin went inside to view the videotape. After doing so,
    he came back out to the car and said that he wanted to take another
    look at the videotape to be sure. Mr. Bouchard came out to the
    police car and told both Officer Martin and Plaintiff that the [sic
    he] did not think Plaintiff was the man captured on the videotape.
    Plaintiff then asked Officer Martin if he heard that, and Officer
    Martin said that he had to go on what Mr. Szcerbiak said, but that
    he would give Plaintiff the benefit of the doubt and look at the tape
    again.
    After viewing the tape at least one more time, Officer Martin
    returned to the vehicle and told Plaintiff that Mr. Szcerbiak wanted
    to press charges. Mr. Bouchard said he did not want to sign the
    arrest warrant because he did not think Plaintiff was the shoplifter.
    After approximately 45 minutes, Plaintiff was driven to the police
    station. Office Martin wrote an affidavit for theft for Mr. Szcerbiak
    to sign. Mr. Szcerbiak signed it as the “prosecutor,” and Officer
    Martin was listed as the arresting officer.
    -4-
    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    Plaintiff was booked, fingerprinted, and jailed for approximately
    four hours until his wife was able to post bond. Plaintiff was tried
    and acquitted of the theft charge on June 26, 2009. This litigation
    followed.
    Sutton v. Metro. Gov’t of Nashville & Davidson Cnty., No. 3:10-0400, 
    2014 WL 3386035
    , at *1-
    3 (M.D. Tenn. July 9, 2014).
    B. Procedural History
    1. The First Appeal
    Sutton sued Martin, the Metropolitan Government of Nashville and Davidson County, the
    Kroger Company, John Szcerbiak, and John Doe Security Company, alleging violations of his
    Fourth, Fifth, Eighth, and Fourteenth Amendment rights, as well as state-law claims of false
    arrest and false imprisonment. Martin moved to dismiss based, in part, on qualified immunity.
    The district court refused to dismiss Sutton’s Fourth Amendment claim and he filed an
    interlocutory appeal. This court affirmed the denial of Martin’s motion to dismiss, for failure to
    state a claim, but we also substantially narrowed the scope of the Fourth Amendment claim
    against Martin. Sutton v. Metro. Gov’t of Nashville & Davidson Cnty., 
    700 F.3d 865
     (6th Cir.
    2012) (holding that Sutton failed to state a claim that officer Martin lacked reasonable suspicion
    required to detain Sutton during the initial contact and questioning. Sutton sufficiently alleged
    that Martin detained him beyond the scope of the initial detention, Szcerbiak’s identification of
    Sutton as the shoplifter provided probable cause to arrest, but Sutton adequately pleaded that he
    was arrested without probable cause, and Martin was not entitled to qualified immunity).
    We first concluded that Martin’s initial encounter with Sutton was an investigatory
    detention supported by reasonable suspicion because a cell phone had been found in the Kroger
    store where an attempted theft had just occurred and a “contact” in the phone told Martin that her
    godson, Jerome Sutton, worked at Summit Hospital. Sutton, 700 F.3d at 873-74. We stated that
    -5-
    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    “[t]he permissible scope of Officers Martin’s initial detention of Sutton was to ascertain his
    identity and to ask limited questions regarding the cell phone found at the Kroger store.” Id. at
    874 (“These are ‘the circumstances that initially justified the stop.’”). When Martin asked Sutton
    about the cell phone, “the restraint on Sutton’s freedom was quite limited, and the Terry stop had
    not converted into an arrest.” Id. We noted that “[h]ad Sutton’s detention ended here, his Fourth
    Amendment rights would not have been violated.” Id.
    However, Martin discounted the exculpatory information that Sutton provided by “wildly
    speculating” that Sutton would likely have two cell phones because he looked like the type of
    guy who was “running around with nurses” and wanted to hide that fact from his wife. We held
    that Martin could not use “pure speculation” to turn a blind eye toward “potentially exculpatory
    evidence.” Id. (internal quotation marks and citation omitted). “Having received an answer to
    his cell-phone inquiry that did not produce more suspicion and knowing no other facts that could
    justify the investigatory detention, Officer Martin lacked a reasonable basis for detaining Sutton
    any further.” Id. We then concluded that: “The facts as alleged thus allow us to draw the
    reasonable inference that Officer Martin was at that point detaining Sutton without reasonable
    suspicion, in violation of the latter’s Fourth Amendment rights.” Id.
    Next, we opined that Sutton’s continued detention “amounted to an arrest prior to
    Szcerbiak’s identification” because it “went beyond questioning Sutton about the cell phone and
    had several characteristics of ‘a show of authority’ that the Supreme Court has found tantamount
    to an arrest.” Id. at 875 (citing Florida v. Royer, 
    460 U.S. 491
    , 501-04 (1983) (plurality
    opinion)). These included the fact that “Sutton was surrounded by four officers, told that he was
    a suspect, had his property confiscated, and then was grasped by the arm and escorted away from
    -6-
    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    his place of work.”    
    Id.
       Martin also told Sutton that he “’could not go anywhere or do
    anything.’” 
    Id.
     This scenario exceeded the permissible scope of a Terry stop because
    Officer Martin's sole basis for suspecting that Sutton was the
    shoplifting perpetrator was an alleged connection to the cell phone
    found at the Kroger grocery store, and this basis was neutralized
    when Sutton produced a cell phone from his own pocket. Given the
    other Royer-like indicia of arrest discussed above, Sutton's forcible
    removal from the hospital exceeded the bounds of a Terry stop and
    was thus an arrest requiring probable cause. Officer Martin does
    not contend that he had probable cause to arrest Sutton absent
    Szcerbiak's identification. Sutton has therefore adequately pleaded
    that he was arrested without probable cause when he was removed
    from the hospital.
    Id. at 876.
    We therefore concluded:
    In sum, Officer Martin is protected by qualified immunity with
    regard to his initial contact with Sutton and in continuing to detain
    Sutton after the latter was positively identified by Szcerbiak. But
    the allegations of Officer Martin’s conduct between those two
    events are sufficient to state a claim that precluded qualified
    immunity at this stage in the litigation.
    Id. at 878.
    2. On Remand
    On remand, the parties conducted discovery. Martin moved for summary judgment. The
    district court recognized that the sole question was “whether Officer Martin had probable cause
    to arrest [Sutton] before he was identified by Szcerbiak.” Sutton, 
    2014 WL 3386035
    , at *6. The
    district court found that fact issues precluded summary judgment.
    In his motion for summary judgment Martin argued that he had probable cause to arrest
    Sutton because (1) Martin received Sutton’s name from a contact listed in the phone dropped at
    the Kroger store; (2) Sutton matched the physical description of the subject; (3) Sutton was
    working less than a mile from the Kroger store; (4) Sutton admitted that he had taken a smoke
    -7-
    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    break and had not clocked out; (5) none of Sutton’s coworkers could verify that Sutton had been
    at Summit the entire time; and (6) Sutton had a stain on his shirt that looked like mud. R. 78 at
    7-8. Further, Martin asserts that he is adopting Sutton’s version of events for purposes of
    determining whether he had probable cause. R. 98 at 1. 
    Id.
    Initially, the district court noted that Martin “insiste[d] that he was ‘adopting Sutton’s
    version of events.’” 
    Id.
     (quoting R. 98-1). The district court posited that Martin chose this tactic
    because, during discovery, Martin’s credibility had been drawn into question. Martin testified on
    deposition that he looked in Roman’s locker and saw muddy clothing (but did not mention the
    clothing in his incident or arrest report or collect it as evidence). Yet Ndiaye and Sutton both
    testified that Sutton did not use a locker and that both came to work in their work clothes.
    Ndiaye also stated that none of the officers went to the lockers that night. Furthermore, by
    conceding plaintiff’s version of events, Martin created a legal question that he could immediately
    appeal. 
    Id.
    The district court held that “[w]hile Officer Martin purports to adopt [Sutton’s] version of
    the events, he has not actually done so.” Sutton, 
    2014 WL 3386035
    , at *7. First, although
    Martin claimed that Sutton matched the description of the suspect, Sutton matched the
    description “only in the broadest sense—he, like the perpetrator, was a black male of medium
    build.” 
    Id.
     Furthermore, the first call to 911 indicated that the suspect was wearing blue jeans,
    and Sutton was wearing black scrubs when Martin confronted him. 
    Id.
    Second, although Sutton admitted that he had taken a smoke break without clocking out,
    Sutton testified in his deposition that he took the smoke break at 5:45 p.m. and was back on the
    -8-
    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    job by 6:00 p.m. The initial 911 call did not occur until 6:20 p.m. In that call, Bouchard stated
    that the suspect was in the woods. 
    Id.
    Third, while Martin claimed that no one at Summit could verify that Sutton was at the
    hospital the entire day, Ms. Ndiaye testified that she was with Sutton except during the 5:45 p.m.
    break, which lasted only about ten minutes. 
    Id.
    Fourth, Martin’s contention that the stain on Sutton’s clothing appeared to be mud,
    “presume[s] that the stain actually looked like mud, and ignore[d] the fact that both” [Sutton] and
    Ndiaye testified that spots on [Sutton’s] clothing were common occurrences from cleaning the
    dish machine.” 
    Id.
     Moreover, even if Martin were right, “this add[ed] nothing to probable
    cause” since the suspect was allegedly wearing blue jeans. 
    Id.
    The district court concluded that, considering the evidence in a light most favorable to
    Sutton, “the very factors upon which Officer Martin relies to establish probable cause show the
    existence of numerous disputed issues of fact.” 
    Id.
    The district court rejected Martin’s alternative argument that he was entitled to qualified
    immunity. Relying on the rationale of the first appeal, the district court held that “[s]ince the
    only basis in the record for Officer Martin approaching [Sutton] was the possible connection to
    the cell phone found at the Kroger store, the continued detention of [Sutton] after he produced
    his own phone amounted to an arrest,” and violated clearly established law established in Terry.
    Id#. The court rejected Martin’s testimony that in his experience, many suspects carry more than
    one cell phone, holding that “[t]his beg[ged] the question of why Officer Martin even asked
    questions about [Sutton’s] cell phone, since [Sutton] would be doomed no matter how he
    answered.” Id. at *8. That is, if Sutton had said he did not have a cell phone, Martin would have
    -9-
    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    concluded that the cell phone was Sutton’s.        The court rejected as “self-serving” Martin’s
    testimony that in his experience, criminals have more than one cell phone. Id.
    The district court concluded:
    Officer Martin's explanation for discounting Plaintiff's possession
    of a cell phone aside, he adds little from the discovery record to
    support his claim that there was probable cause to detain Plaintiff.
    Prior to going to Summit, Officer Martin ran Plaintiff's criminal
    record, but that record was minor and contain[ed] no charges
    related to theft. Officer Martin knew that Summit was in close
    proximity to the Kroger store, and that the suspect was a black
    male of medium build. When Officer Martin arrived at Summit,
    however, he was met by an individual who was not wearing
    anything close to the type of clothing described in the 911 call, and
    the individual before him (at least if Plaintiff’s version of events is
    believed) had an alibi backed by a co-worker account.
    Id. The court held that the law was clearly established and denied qualified immunity for
    a second time. Id.
    3.   Second Interlocutory Appeal
    In this second interlocutory appeal, Martin argues that the district court erred in denying
    him qualified immunity because (1) he had probable cause to detain Sutton for 15-20 minutes to
    await eyewitness identification and (2) Sutton cannot carry his burden of showing that no
    reasonable officer would have believed that he had probable cause to detain Sutton to await an
    eyewitness identification.
    II.    STANDARDS OF REVIEW AND APPLICABLE LAW
    We review de novo the district court’s denial of a defendant’s motion for summary
    judgment on qualified immunity grounds. Stoudemire v. Mich. Dep’t of Corrs., 
    705 F.3d 560
    ,
    565 (6th Cir. 2013). Summary judgment is proper if there is no genuine issue as to any material
    fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Stoudemire,
    -10-
    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    705 F.3d at 565. Summary judgment is not proper if the evidence is such that a reasonable jury
    could return a verdict for the nonmoving party. Stoudemire, 705 F.3d at 565. We view all facts
    and draw all reasonable inferences in favor of the nonmoving party. Id.
    A government official is shielded from § 1983 liability if his actions did not violate
    clearly established statutory or constitutional rights of which a reasonable person would have
    known. Pearson v. Callahan, 
    555 U.S. 223
    , 231 (2009). The burden rests on the plaintiff to
    show that the defendant is not entitled to qualified immunity. Reilly v. Vadlamudi, 
    680 F.3d 617
    ,
    623 (6th Cir. 2012). Thus, a plaintiff must show that the defendant violated a constitutional right
    and that the right was clearly established. Pearson, 
    555 U.S. at 232
    .
    “The Fourth Amendment guarantees that government officials may not subject citizens to
    searches or seizures without proper authorization.” Sutton, 700 F.3d at 871 (internal quotation
    marks and citation omitted). A warrantless arrest does not violate the Fourth Amendment if the
    officer had probable cause to believe a crime had been committed. Id. An officer possesses
    probable cause when the facts and circumstances within the officer’s knowledge at the moment
    of arrest are sufficient to warrant a prudent man in believing that the plaintiff had committed a
    crime. Beck v. Ohio, 
    379 U.S. 89
    , 91 (1964). A probable cause determination is based on the
    “totality of the circumstances,” and must take account of “both the inculpatory and exculpatory
    evidence.” Gardenhire v. Schubert, 
    205 F.3d 303
    , 318 (6th Cir. 2000). As a general rule, the
    existence of probable cause in a § 1983 action is a jury question, unless there is only one
    reasonable determination possible. Pyles v. Raisor, 
    60 F.3d 1211
    , 1215 (6th Cir. #1995).
    A right is clearly established if “it would be clear to a reasonable officer that his conduct
    was unlawful in the situation he confronted.” Saucier v. Katz, 
    533 U.S. 194
    , 202 (2001),
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    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    overruled on other grounds, Pearson v. Callahan, 
    555 U.S. 223
     (2009); Sutton, 700 F.3d at 871.
    As this court recently explained:
    [in] determining whether the rights violated were “clearly
    established,” we must first define the right at issue. In doing so, the
    Supreme Court has warned that we should not define the right in
    question at “a high level of generality.” Ashcroft v. al–Kidd, –––
    U.S. ––––, 
    131 S. Ct. 2074
    , 2084, 
    179 L. Ed. 2d 1149
     (2011). This
    holding ensures that, on the one hand, we do not define the right so
    broadly as to declare all police misconduct within the realm of
    clearly-established law. On the other hand, it also ensures that we
    not define the right so narrowly that, to be actionable, the
    circumstances of the alleged violation must be identical to cases
    already decided. The correct balance must be struck because, while
    the requirement that law must be clearly established is the lynchpin
    of the analysis, officers can still be “on notice that their conduct
    violates established law, even in novel factual circumstances.”
    Hope v. Pelzer, 
    536 U.S. 730
    , 741, 
    122 S. Ct. 2508
    , 
    153 L. Ed. 2d 666
     (2002).
    Baker v. Union Twp., 587 F. App’x 229, 233 (6th Cir. 2014).
    III.    ANALYSIS
    We initially consider Sutton’s motion to dismiss this appeal for lack of appellate
    jurisdiction.
    “A defendant, entitled to invoke a qualified immunity defense, may not appeal a district
    court’s summary judgment order insofar as that order determines whether or not the pretrial
    record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 
    515 U.S. 304
    , 319-20
    (1995); Romo v. Largen, 
    723 F.3d 670
    , 674 (6th Cir. 2013). Our jurisdiction at the interlocutory
    stage is limited to “pure issues of law.” Mitchell v. Forsyth, 
    472 U.S. 511
    , 530 (1985); Sutton,
    700 F.3d at 871. On an interlocutory appeal from a denial of qualified immunity, the defendant
    must concede the plaintiff’s version of the facts. “Once a defendant’s argument drifts from the
    purely legal into the factual realm . . . our jurisdiction ends and the case should proceed to trial.”
    Berryman v. Rieger, 
    150 F.3d 561
    , 564-65 (6th Cir. 1998). See also McKenna v. City of Royal
    -12-
    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    Oak, 
    469 F.3d 559
    , 561 (6th Cir. 2006). But see Estate of Carter v. City of Detroit, 
    408 F.3d 305
    , 310 (6th Cir. 2005) (stating that “this court can ignore the defendant’s attempts to dispute
    the facts and nonetheless resolve the legal issue” only).
    Martin claims that he had probable cause to detain Sutton until Sutton could be identified
    by an eyewitness. He claims that the district court erred for the following seven reasons. First,
    the district court focused on Martin’s credibility, instead of focusing on the undisputed facts.
    That is, he claims that the district court did not need to make a credibility assessment since he
    had conceded Sutton’s version of the facts.         Second, the court rejected as “self-serving”
    undisputed evidence in the record, such as Martin’s testimony that, in his experience, suspects
    often carry more than one cell phone, and the court seemed to disregard the expert testimony of
    Lt. Gilder to that effect as well. Third, the court improperly focused on Sutton’s production of
    his cell phone, because under Sutton’s version of the facts, no one ever told Martin that the
    phone found at Kroger belonged to Sutton.          “Thus, Officer Martin would not have been
    questioning Sutton as the possible owner of the phone, but only as a name connected with the
    phone.” Appellant’s Br. at 21. Fourth, the court focused on facts that were not learned until
    after Sutton’s detention at Summit, rather than focusing on what Martin knew at the time. In this
    regard, Martin notes that what Sutton said in his deposition was not relevant because there is no
    evidence in the record that anyone told Martin about the timing of Sutton’s smoke break. Fifth,
    the court erred in concluding Sutton matched the suspect’s description in only the broadest sense,
    simply because Bouchard testified that the suspect was much taller than Sutton. Sixth, the court
    erred in rejecting the evidence of mud on the shirt because nothing in the record showed that
    Martin knew that the spots could have been from the dishwashing machine. Seventh, the court
    erroneously disregarded the mud on Sutton’s shirt on the ground that the suspect was described
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    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    as wearing blue jeans. “Certainly suspects have been known to change clothes, and it is not
    beyond the realm of reasonableness for Officer Martin to believe that Sutton managed to change
    his muddy blue jeans before the detention but left on a shirt that had a few mud stains.”
    Appellant’s Br. at 24.
    Martin (1) mischaracterizes his version of the facts as Sutton’s, (2) asks us to draw all
    inferences in his favor, and (3) ignores evidence procured during discovery. Having drifted far
    afield into the factual realm, we do not have jurisdiction over the contested fact questions in this
    case. See Berryman, 
    150 F.3d at 564-65
    .
    Two examples suffice to illustrate the point. First and foremost, Martin asks us to draw
    the inference that he was not questioning Sutton as the owner of the phone, but merely as a name
    connected with the phone. However, as the district court noted, one could easily infer that
    Martin or any other reasonable officer could have believed the owner of the cell phone dropped it
    during the theft. Thus, once Sutton produced his own phone, suspicion dropped away from
    Sutton. We do not have jurisdiction to resolve such opposing inferences. See Romo, 723 F.3d at
    874 (stating that “[i]n adjudicating this appeal, we are required by the limitations on
    interlocutory appeals of qualified immunity denials to accept the district court's finding that a
    genuine dispute of material fact existed”); see also id. at 678 (6th Cir. 2013) (Sutton, J.,
    concurring) (disagreeing with majority’s holding that, “when a district court determines that
    there is a ‘genuine issue of fact’ for trial by drawing an inference in favor of the plaintiff, the
    appellate court may not second-guess that inference, indeed lacks jurisdiction to do so”).
    Second, Martin said he saw a mud-like stain on Sutton’s shirt and that he knew the
    suspect had run through a creek. But Sutton and Ndiaye said the stain was from the dish-
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    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    washing machine. Furthermore, the suspect allegedly wore jeans. A reasonable inference could
    be drawn that the jeans should have been mud-stained, too. In his deposition, Martin said that he
    saw the muddy clothing in the locker. But he did not mention the muddy clothing in his incident
    or arrest report and did not collect the clothing as evidence. Furthermore, Ndiaye testified that
    Sutton did not use a locker and that they both came to the hospital in their work clothes. A fact
    finder needs to decide not only if Martin lied about the jeans, but whether his belief that Sutton’s
    shirt had mud from the creek on it-was plausible.
    Martin also argues that even if he lacked probable cause to detain Sutton, the law was not
    so clearly established that he should have realized it. At the time of Sutton’s arrest, the law was
    clearly established that an officer needed probable cause, i.e., a reasonable belief that the plaintiff
    had committed a crime, based on the totality of the circumstances, including both inculpatory
    and exculpatory evidence. See Klein v. Long, 
    275 F.3d 544
    , 552 (6th Cir. 2001) (observing that
    “to have probable cause to arrest, a police officer must take into account all the evidence–both
    inculpatory and exculpatory–that he has at the time of the arrest.           Where the police have
    sufficiently inculpatory evidence to give rise to a determination of probable cause and they do
    not know of any exculpatory evidence, we have held that ‘the failure to make a further
    investigation does not negate probable cause.’”) (quoting Coogan v. City of Wixom, 
    820 F.2d 170
    , 173 (6th Cir. 1987)). If Sutton’s version of the facts is correct, “it would be clear to a
    reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier,
    533 U.S. at 202. Because if Sutton is correct, after he pulled his cell phone out of his pocket, all
    Martin knew was that (1) the cell phone found at the scene of the theft had as an anonymous
    contact the “god mother” of Sutton, (2) Sutton worked across the street, (3) Sutton was a black
    male about six feet tall with a medium build, (4) Sutton was wearing scrubs, (5) Sutton had
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    No. 14-5859, Sutton v. Metro Govt. of Nashville, et al.
    stains on his clothing from the dishwasher, and (6) a coworker had offered an alibi. This does
    not add up to probable cause to believe that Sutton attempted to steal the baby-back ribs.
    IV. CONCLUSION
    In sum, we hold that the district court correctly concluded that fact issues remained and
    therefore uphold its order denying summary judgment to Martin on the basis of qualified
    immunity. See Romo, 723 F.3d at 675, 678.1 AFFIRMED.
    1
    To the extent Sutton is also seeking qualified immunity on his state-law claim that too is denied for the same
    reason that questions of material fact exist.
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