Rohde

This appeal from the dismissal of a 42 U.S.C. § 1983 action presents the question whether police improperly arrested both the driver of a vehicle and its passenger on the basis of a police report indicating that the vehicle had been stolen. We conclude that the officer had probable cause to arrest the driver of the vehicle but not the passenger.

BACKGROUND

When Roseburg, Oregon Police Officer Tom McFadden stopped Mark Rohde for speeding, Mr. Rohde was unable to produce proof of vehicle registration and instead presented a certificate of title. The name on the title, however, was neither that of Mr. Rohde nor that of his passenger and mother, Mar-lyn Rohde. Officer McFadden radioed his dispatcher, who informed him that Medford, Oregon police had listed the vehicle as stolen. Officer McFadden immediately informed Mr. Rohde that he was under arrest, handcuffed him, and placed him in the back of his patrol car. Roseburg Police Officer Anthony Di-mare then arrived on the scene. Together, he and Officer McFadden asked Mrs. Rohde to step out of the car and placed her under arrest. They handcuffed her and placed her in Officer Dimare’s patrol car.

Mr. Rohde protested his innocence to…

partially concurring and partially dissenting.

I concur in the majority opinion with respect to Marlyn L. Rohde, but respectfully dissent with respect to Mark E. Rohde.

The officer reasonably stopped Mr. Rohde for speeding, and reasonably stopped him in the Terry sense for possessing a stolen car. Whether he could arrest Mr. Rohde depended, we agree, on whether, looking to the totality of circumstances, reasonably trustworthy information would warrant a prudent person in believing that Mr. Rohde had stolen the car.

Before the arrest, but after the stop, here is what the officer knew:

After the officer arrested Mr. Rohde, he talked to him, and Mr. Rohde insisted he had bought the car. He also told the officer that the bill of sale was in the glove compartment. The officer looked, and a standard Department of Motor Vehicles form bill of sale was there. It was signed by the salesman with Mr. Rohde’s name at the top as the buyer. That observation led the officer to inquire further and release Mr. Rohde.

“Totality of the circumstances” is a two way street. Driving a stolen car may amount to probable cause that the driver is the thief, but the officer has to consider the “totality…