During a lively hearing Monday, judges with the 9th Circuit U.S. Court of Appeals heard arguments in the case of a man wrongfully arrested in 2014 by Hillsboro police.
The panel of judges focused their questions on whether three Hillsboro police officers established probable cause before arresting Adam Horstman in connection with a series of opiate robberies at several pharmacies.
After being held for six days in jail in July 2014, Horstman was released after police found fingerprint evidence that led them to the actual thief. Horstman later sued.
In 2016, two U.S. District Court Judges in Oregon ruled that police didn’t have probable cause to arrest Horstman. They also ruled that the three Hillsboro police officers could be held liable.
It’s that ruling the city and the officers appealed to the judges Monday.
“Would you start out with the issue of probable cause?” Judge Andrew Hurwitz asked Janet Schroer, the attorney for the city of Hillsboro and three police officers.
“As I read this record, what you have are two people at one pharmacy who initially say ‘The guy who came to fill a prescription looks like the robber,’ but when they’re confronted with a photo, neither of them can pick him out. Correct?”
Schroer responded that witnesses reviewed eight photographs from police and were able to narrow their list of suspects down to two.
“And they were remarkably similar if you saw the photographs,” she said.
During their investigation, police officers reviewed surveillance video and showed DMV photos to witnesses of previous robberies. The witnesses weren’t able to conclusively identify Horstman, though one “noted [Horstman’s] photo looked like the robber,” according to court documents.
During Monday’s arguments, Hurwitz said that based on the photos Hillsboro police showed the witnesses, “let’s assume the witnesses narrowed the possible suspects from eight to two.”
“Do you have probable cause at that point to arrest?” he asked Schroer.
“I think that you do, but you don’t need probable cause,” she responded.
“You do? You do?” Hurwitz shot back. “That’s 50-50,” he later said, “that’s not probable cause, is it?”
Schroer said probable cause was based on the “whole body of evidence” the police officers had before them, which also included a inconclusive surveillance video.
Hurwitz also raised questions about the police officers’ investigative work.
After one of the robberies, he said, officers seized Horstman’s prescription from the pharmacy. The prescription, Hurwitz noted, was written on the day of one of the other robberies for which police arrested Horstman.
“And the provider’s name was on it?” Hurwitz said.
“Correct,” Schroer said.
“Does anybody ever call the provider and find out whether Mr. Horstman was with the provider on the day of that robbery?” the judge asked.
Schroer said the provider was not contacted before Horstman’s arrest. “But there was nothing to indicate that that prescription was going to provide an alibi,” she said.
“Except that he’s got a prescription on the day of one of the robberies he was arrested for, for the very thing that he robbed,” Hurwitz responded. “Isn’t that at least something that would raise some inquiry?”
Schroer attempted to shift the judges’ focus toward the larger question of whether the officers are entitled to immunity from paying potential damages.
“The question is not whether the officers needed to have certainty that this person did it,” Schroer argued. “There only needs to be a fair probability that this person was the one who was the perpetrator.”
Horstman’s attorney, Jesse Merrithew, asked the three judges to uphold the lower court’s ruling that found the Hillsboro police officers didn’t have probable cause when they arrested Horstman and can be held financially liable.
Horstman was arrested several days after he filled a prescription at a pharmacy where employees identified him as someone who looked like the robber.
Again Judge Hurwitz jumped in, posing a hypothetical question to Merrithew: “Could Hillsboro police have arrested Horstman immediately after the two pharmacy clerks called the police saying “they’re 80 or 90 percent sure,” he’s the guy who robbed it earlier?”
“No,” Merrithew responded.
“Really?” Hurwitz asked.
Merrithew said police need some information to determine whether the witness’ information is reliable.
“What case says that?” Hurwitz asked.
“Well, I think all of the cases that talk about identifications and identification procedures” going back to a case from 1967,” Merrithew said. “When you’re dealing with witness identification you need to have some information about reliability.”
Again Hurwitz asked Merrithew for a specific case.
“I don’t have a case at my finger tips on that point,” Merrithew said.
Then Judge N. Randy Smith got involved.
“I was looking for the case that says ‘Police officers have to examine the basis of the eyewitness knowledge before making the arrest,’” Smith said. “I couldn’t find the case. So what do I use?”
Merrithew started to answer, but Judge Smith cut him off.
“I mean, if I don’t have a case then it isn’t clearly established,” Smith said.
“If we need a case that lays out each of those principles before something is clearly established then officers are never going to be liable for their conduct,” Merrithew said.
But Smith said that wasn’t the point.
“The officers have to be on notice about what they have to do; if they’re not on notice about what they have to do, then they get immunity,” Smith said.
It will likely be several months before the appeals court issues a ruling.