DiNicola v. DiPaolo (25 F. Supp. 2d 630, 1998)

MEMORANDUM OPINION

MCLAUGHLIN, District Judge.

Plaintiff Louis P. DiNieola brings the instant action against Defendants Dominick DiPaolo and Donald Gunter (former police officers for the City of Erie, Pennsylvania), William Vorsheek (a hypnotist formerly residing in Erie County), Edward Wayne Edwards (a former witness against DiNieola), and the City of Erie (the “City”) under 42 U.S.C. §§ 1983 and 1988 and Pennsylvania state law. The claims arise out of Plaintiff’s arrest and conviction in 1980 on charges of arson and second degree murder for which he was eventually retried and acquitted. This Court has jurisdiction over Plaintiff’s claims based on 28 U.S.C. §§ 1331, 1343 and 1367(a).

Presently pending before this Court are motions by all Defendants for summary judgment. For the reasons stated below, these motions will be granted.

I. BACKGROUND

On the night of August 30 and early morning hours of August 31,1979, a fire ravaged a two-story residence at 622 West 16th Street in Erie, Pennsylvania. The fire claimed three lives, including two children of one Deborah Sweet, the first floor occupant. Plaintiff was suspected by the Erie police of being responsible for the fire. On March 26, 1980 he was arrested and charged with arson and three counts of murder in the second degree. On October 20, 1980, Plaintiff was convicted on all counts. His conviction was subsequently overturned by the Pennsylvania Supreme Court and, following extensive interim proceedings, Plaintiff was retried and acquitted in May of 1994. This suit followed on November 23,1994.

Plaintiff alleges that the Defendants acted to deprive him of his rights under both federal and state law. Count I of his amended complaint asserts claims under 42 U.S.C. §§ 1983 and 1988 for alleged violations of his Fourth Amendment a right to be free from unlawful seizure (including arrest without probable cause, false imprisonment, and malicious prosecution), and his Fourteenth Amendment right to due process of law. Count II asserts a cause of action for malicious prosecution under Pennsylvania law. Underlying these claims are several central factual allegations, viz: (a) that Defendants, through highly suggestive hypnotic regression, procured false testimony from Deborah Sweet implicating Plaintiff as the perpetrator of the fire; (b) that, through Defendants’ collaborative conduct, critical exculpatory evidence was destroyed and/or deliberately concealed from Plaintiff, from the judge who authorized his arrest warrant, and from the original trial court; (c) that Defendants Gun-ter and DiPaolo deliberately failed to record and retain evidence that implicated a different person in the crime; and (d) that false testimony from Defendant Edwards was used against Plaintiff in an effort to convict him in his second criminal trial. Plaintiff claims that his constitutional injuries were the proximate result of a practice or custom on the part of the City of failing to properly train, discipline and supervise its police officers and agents with respect to the constitutional rights of the criminally accused.

All Defendants have now filed motions for summary judgment with respect to all of Plaintiff’s claims. Defendants Vorsheek and Edwards argue that they cannot be liable because they were not persons acting under color of state law for purposes of Plaintiffs federal claims and because their respective actions were not unlawful. Vorsheek further claims that, if he was in fact a state actor, he is entitled to summary judgment under the doctrines of collateral estoppel and/or qualified immunity. DiPaolo and Gunter likewise claim that they are entitled to summary judgment on the basis of qualified immunity. Alternatively, they claim that there is no evidence to establish any violation of Plaintiffs constitutional rights. The City contends that it is entitled to summary judgment on the § 1983 claim because Plaintiff has failed to adduce evidence of a municipal custom or policy that could have caused the alleged violations of his constitutional rights.

We conclude that summary judgment is appropriately granted in favor of Defendants DiPaolo and Gunter because, as a matter of law, they had probable cause to arrest Plaintiff and to assist in filing criminal charges against him. In the alternative, the Court concludes that DiPaolo and Gunter are entitled to qualified immunity for their conduct.

Our resolution of the claims against DiPao-lo and Gunter necessarily leads us to conclude that the claims against Vorsheek and Edwards, which are premised on essentially the same conduct, also fail as a matter of law. In short, there is insufficient evidence to establish that Vorsheek or Edwards committed any violation of Plaintiffs federal constitutional rights or that they violated his rights under Pennsylvania law. Alternatively, we conclude that Vorsheek and Edwards are entitled to summary judgment on DiNieola’s § 1983 claims because DiNicola cannot establish that those individuals acted under color of state law. Finally, based on our resolution of the claims against the individual Defendants, we conclude that the City is likewise entitled to judgment as a matter of law.

II. STANDARD OF REVIEW

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Upon a motion for summary judgment, the non-moving party, to prevail, must “make a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Knabe v. Boury Corp., 114 F.3d 407, 410 n. 4 (3d Cir.1997) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In evaluating whether the non-moving party has established each necessary element, we must grant all reasonable inferences from the evidence to the non-moving party. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). However, “[w]here the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Id. (quoting Matsushita, 475 U.S. at 587, 106 S.Ct. 1348).

III. DISCUSSION

1. Plaintiffs Federal Claims

Plaintiffs federal claims are brought pursuant 42 U.S.C. § 1983, which provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any ... person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C.A. § 1983 (West 1994). In order to maintain an action under § 1983, a plaintiff must demonstrate: (i) a violation of a right secured by the Constitution or the laws of the United States; and (ii) that the alleged deprivation was committed by a person acting under color of state law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996) (citation omitted).

A.

We initially consider Plaintiffs claims against DiPaolo and Gunter premised on their alleged violations of his Fourth Amendment rights, including his right to be free from arrest without probable cause, false imprisonment, and malicious prosecution. The lack of probable cause is an essential element for each of these claims. See Groman v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir.1995) (to prevail on false arrest claim under § 1983, plaintiffs would have to prove that the police lacked probable cause to arrest suspect); Id. at 636 (false imprisonment claim under § 1983 may be premised upon arrest made without probable cause); Rose v. Bartle, 871 F.2d 331, 349 (3d Cir.1989) (to establish a claim for malicious prosecution under § 1983, plaintiff must demonstrate that (1) the defendant initiated a criminal proceeding (2) which ended in plaintiff’s favor (3) the criminal proceeding was initiated without probable cause, and (4) the defendant acted maliciously or for a purpose other than bringing the defendant to justice) (citation omitted) (emphasis added). Otherwise stated, the presence of probable cause is a complete bar to DiNicola’s federal claims for false arrest, false imprisonment, and malicious prosecution. See Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir.1996) (citation omitted); Williams v. Kobel, 789 F.2d 463, 470 (7th Cir.1986); Whitmore v. Smith, No. Civ. A. 96-2745, 1997 WL 438441 at *5 (E.D.Pa., Jul 30, 1997); Schertz v. Waupaca County, 683 F.Supp. 1551, 1564 (E.D.Wis.1988) (citing cases), aff'd, 875 F.2d 578 (7th Cir.1989); Seip v. Newark Police Dept., 648 F.Supp. 489, 492 (D.N.J.1986).

Although the existence vel non of probable cause is normally a factual issue for the jury’s determination, like any other factual issue it may be resolved by the court as a matter of law if no genuine dispute exists on the record—i.e. if, based on the evidence as a whole, a jury could not reasonably conclude that the officers lacked probable cause to make the arrest and institute criminal proceedings. See Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir.1997) (citing Deary v. Three Un-Named Police Officers, 746 F.2d 185, 192 (3d Cir.1984)).

The concept of probable cause is “defined in terms of facts and circumstances ‘sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.’” Sharrar, 128 F.3d at 817-18 (quoting Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). Thus, the standard is an objective one and is to be applied based on the facts available to the officers at the time of their alleged unlawful conduct. Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir.1994) (citing Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) and Edwards v. City of Philadelphia, 860 F.2d 568, 571 n. 2 (3d Cir.1988)). Whether the accused is ultimately convicted is of no moment: “Evidence that may prove insufficient to establish guilt at trial may still be sufficient to find the arrest occurred within the bounds of the law.” Id. (citing Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)). As long as DiPaolo and Gunter had some reasonable basis to believe that DiNieo-la had committed the crimes with which he was charged, the arrest and prosecution are justified as being based on probable cause. See id.

In order to determine whether Plaintiff can demonstrate a lack of probable cause on this record, we must undertake a somewhat extensive review of the facts. First, however, some commentary is warranted regarding this Court’s factual scope of review. Plaintiff has challenged his arrest and prosecution on the basis that the affidavit in support of the arrest warrant contained material omissions and/or misrepresentations which, when corrected, vitiate probable cause. In other words, DiNicola posits that his arrest (albeit effectuated pursuant to an arrest warrant) was unconstitutional because the warrant was allegedly procured through deception on the part of DiPaolo and Gunter: “An arrest warrant does not defeat a claim of malicious prosecution where ... the plaintiff can show that the warrant was secured by fraud, perjury or other corrupt means.” (Pl.’s Br. in Opp. to Summ. Judg. at 30 (citing Rose v. Bartle, supra)). Implicit in Plaintiffs position is the view that the existence vel non of probable cause is determined by examining the four corners of the affidavit in support of the arrest warrant.

The Court does not agree that its review must be so limited. Instead, we will treat DiNicola’s arrest as essentially a war-rantless arrest, which is constitutionally valid as long as it was supported by probable cause. Furthermore, in analyzing the issue of probable cause, we will look beyond the information which the officers chose to include in their affidavit in support of the arrest warrant and will consider the totality of factors known to DiPaolo and Gunter at the time the arrest was effectuated and criminal charges filed. The Court fully recognizes that DiNicola was arrested at his home on March 26,1980 and that, normally, when a person is arrested in his or her home, a warrant is required to properly effectuate the arrest. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (“It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.”). However, federal courts have recognized an exception to this rule where exigent circumstances exist, or where entry into the home is consensual. Steagald v. United States, 451 U.S. 204, 214 n. 7, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (“[A]bsent exigent circumstances or consent, an entry into a private dwelling to conduct a search or effectuate an arrest is unreasonable without a warrant.”) (emphasis supplied); United States v. Cotnam, 88 F.3d 487, 495 (7th Cir.1996) (recognizing that an individual can consent to a warrantless entry of officers into their home), cert. denied, — U.S. -, 117 S.Ct. 326, 136 L.Ed.2d 240 (1996); Parkhurst v. Trapp, 77 F.3d 707, 710-11 (3d Cir.1996) (although warrantless arrests in public places are valid, greater burden is placed on an official who enters a home or dwelling without consent) (citing Payton, 445 U.S. at 587, 100 S.Ct. 1371); United States v. Vaneaton, 49 F.3d 1423, 1428 (9th Cir.1995) (Payton left open only two ways for the government to overcome the presumption that warrantless seizure in the home is invalid: a showing of exigent circumstances or a showing of consent to the entry) (dissent), cert. denied, 516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 218 (1996); United States v. Sager, 743 F.2d 1261, 1263 (8th Cir.1984) (referencing in dicta Payton’s holding that police may not enter a suspect’s home to make a routine felony arrest absent consent or a warrant), cert. denied, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985). The “consent” exception is based on the recognition that an individual’s privacy interest in the sanctity of his or her home is a primary concern behind the requirement for an arrest warrant. See Payton, 445 U.S. at 587, 100 S.Ct. 1371 (“Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment.”); Parkhurst v. Trapp, 77 F.3d at 711. This interest is not violated where officers gain consensual entry prior to effectuating an arrest in the suspect’s home or dwelling.

In this case, there is no dispute but that DiPaolo and Gunter gained consensual entry into DiNicola’s house on the morning of his arrest. By virtue of this consensual entry, no warrant was technically necessary in order to lawfully arrest DiNicola, assuming that the arrest was otherwise supported by probable cause. See, e.g., Stokes v. O’Connor, Civ. A. Nos. 93-16, 93-208-SLR, 1994 WL 829066 at *8 (D.Del. June 30, 1994) (where police had lacked warrant to enter apartment dwelling in which plaintiff was arrested, plaintiffs fourth amendment claim under § 1983 would turn on whether police had consent to enter the apartment or whether exigent circumstances justified war-rantless, non-consensual entry); United States v. Tidswell, 753 F.Supp. 1001, 1007 (D.Me.1990) (defendant voluntarily exposed himself to warrantless arrest by consenting to undercover agent’s entry into his residence).

To sum up, we can view DiNicola’s arrest as a lawful warrantless arrest as long as probable cause existed to support it. In making the latter determination, we consider the broad array of information known by the officers, i.e. the totality of the facts — not simply those facts which they chose to include in their affidavit in support of the arrest warrant. Accordingly, we will review in some detail the chain of events leading up to DiNicola’s arrest and prosecution.

(i) The Background Facts

On the afternoon or early evening of August 30, 1979, DiNicola accompanied his friend, Michael Jefferson, from their workplace at the McCreary Roofing Company to Jefferson’s home at 622 West 16th Street in Erie. Upon arriving at Jefferson’s residence, the two men worked on Jefferson’s truck, smoked marijuana and drank beer. Jefferson lived in the upstairs apartment with his mother, Cora Jefferson, and Cora’s fiancé, Eugene Pitts.

While Jefferson and DiNicola were working on the truck, Deborah Sweet arrived home with her two children. Sweet had just recently moved into the first floor apartment. She began talking with Jefferson and DiNi-cola and eventually invited them inside her apartment for a beer. DiNicola retrieved a newly purchased case of beer from Sweet’s car and carried it inside her apartment. Jefferson followed.

Inside the apartment, the three individuals talked, drank beer and smoked marijuana. At some time around 9:00 p.m. or shortly thereafter, Sweet put her two children, Alisa Minton (age eight) and Geoffrey Sweet (age four) to bed. At approximately 10:00 p.m., Sweet received a telephone call from a friend named Glen Martin. While Sweet was on the telephone, Jefferson, still dirty from his work, took a bath in Sweet’s bathtub. When he was finished, DiNicola asked permission to take a bath and Sweet consented. Jefferson retrieved some additional marijuana and, while DiNicola bathed, he and Sweet smoked the marijuana and listened to music in Sweet’s living room. Subsequently, while DiNicola was still in the bathroom, Jefferson and Sweet entered Sweet’s bedroom and, with the door ajar, engaged in sexual intercourse. DiNicola subsequently exited the bathroom at the northwest end of the apartment and proceeded past Sweet’s bedroom toward the south end of the apartment.

Sweet and Jefferson remained in her bedroom together until, at some point around midnight, they arose to find that the apartment was engulfed in flames. DiNicola, Jefferson and Sweet exited the apartment through the only operable exit at the north end of her apartment. Sweet, unfortunately, was unable to save her children. Both Alisa Minton and Geoffrey Sweet perished in the fire, along with Cora Jefferson’s fiancé, Eugene Pitts.

(ii) The Criminal Investigation of the Fire at 622 West 16th Street

At the time of the fire at 622 West 16th Street, Defendants DiPaolo and Gunter were both employed as detectives with the Erie Police Department. They first became involved in the investigation of the fire on the morning of August 31, 1979. (Def.’s App., Vol. V at 2052a.) On that date DiPaolo and Gunter proceeded to the scene of the fire and found that two Pennsylvania State Police Fire Marshals, Troopers Roger Bellotti and Thomas May, were already in the process of investigating the cause and origin of the fire. Also present was John Kucinski, Chief Fire Inspector of the Erie Fire Department. Troopers Bellotti and May examined the interior and exterior of the house. Inside the house, they found evidence of “alligator” burn patterns on the floor of the den area. The evidence suggested to the troopers that the fire was of incendiary origin, that it began from the inside of the house, and that a flammable liquid had been used by the perpetrator. (Id. at 2160a.) They ruled out accidental means or an electrical fire as possible causes. (Id.) The troopers located the den area on the first floor as the point of origin. (Def.s’ App., Vol. V at 2157a, 2162a.) They submitted samples of debris for chemical analysis, including pieces of burned floor boards. (See generally Def.s’ App., Vol. V at 2156a-2162a.) Chemical testing would subsequently reveal the presence of a flammable liquid known as “stoddard solvent.” Stod-dard solvent was one of the substances used by the McCreary Roofing Company, where both Jefferson and DiNicola worked. (Id. at 2165a.)

Upon arriving at the scene of the fire, DiPaolo and Gunter began interviewing witnesses. (See generally Def.s’ App., Vol. V. at 2052a et seq.) They took a detailed statement from Michael Jefferson, who had been with Sweet at the time the fire broke out. Jefferson essentially recounted the sequence of events on the night of the fire, as set forth above. He informed the officers that the last thing he remembered was being in bed with Sweet and awakening to the sound of DiNieo-la shouting, “Let’s get out of here, there’s a fire.” Jefferson recalled that he got out of bed, looked into the dining room area and found the dining room fully engulfed in flames. He then ran from Sweet’s bedroom out of the apartment. Once outside, Jefferson saw a number of neighbors congregated in the street. By this time, according to the police report of Jefferson’s statement, the entire house was in flames. Jefferson recalled that he was not wearing shoes at the time, and that DiNicola was. Aware that his mother Cora was in the upstairs apartment, Jefferson stated that he asked DiNicola to kick in the door to the upstairs apartment and retrieve his mother, since DiNicola was not in bare feet. According to Jefferson. DiNicola complied and did in fact help Mrs. Jefferson out of the upstairs apartment.

DiPaolo and Gunter also interviewed Evelyn Wynkoop, the daughter of Cora Jefferson. Ms. Wynkoop informed the detectives that Cora had previously lived with a man by the name of Pete Moore for approximately 10 years and had broken up with Mr. Moore about one year prior to the fire. According to the police report, Ms. Wynkoop related that Mr. Moore had called Cora on several occasions, stating that he would stop the wedding between Cora and Mr. Pitts one way or another and that “he didn’t care what happened but [Cora] would never marry” Mr. Pitts. (Def.’s App. Vol. V at 2054a.) Ms. Wynkoop advised that Mr. Moore had last contacted Cora Jefferson on August 25, 1979, just days before the fire. Another witness, Judith Pristello, confirmed that Pete Moore had argued with Cora Jefferson about one week prior to the fire and had made a statement to the effect, “You[] [and Pitts] will never be together as long as I can help it.” (Def.’s App. Vol. V at 2054a.) Nonetheless, as discussed in more detail infra, the detectives’ investigation into the whereabouts of Pete Moore on the night of the fire ultimately led them to believe that Moore had a solid alibi.

In addition to interviewing Michael Jefferson and Evelyn Wynkoop, DiPaolo and Gun-ter interviewed several neighbors who had witnessed the fire. By all accounts, the fire occurred shortly after midnight on the morning of August 31, 1979 and was very intense and fast moving. Some witnesses claimed that the entire house was up in flames in a matter of seconds. (Def.’s App., Vol. V at 2055a.) As a result of their interviews, the detectives were aware that both Sweet and Cora Jefferson had been taken to the hospital for treatment following the fire. Michael Jefferson had remained at the scene of the fire even after the firefighters arrived. Jefferson advised DiPaolo and Gunter that, to the best of his knowledge, DiNieola had left the scene of the fire shortly after it started and had gone to his mother’s house to sleep.

On the afternoon of August 31, 1979, DiPaolo and Gunter interviewed DiNieola at a job site where he was working. (Def.s’ App., Vol. V at 2056a et seq.) DiNieola corroborated the fact that he and Jefferson had been working together on Jefferson’s truck after work the previous evening when Sweet arrived home with her children. He confirmed the fact that Sweet had invited the two men inside for beer and that he, Jefferson and Sweet had smoked marijuana that evening. DiNieola also remembered Sweet getting a telephone call that evening. He informed the officers that Sweet had seemed upset from the call and that she had instructed him not to answer the telephone if it rang again. Following the telephone call, DiNieola asked Sweet’s permission to take a bath in her bathtub. Sweet consented. DiNieola told the detectives that, after finishing his bath, he came out of the bathroom and noticed that Sweet and Jefferson were in her bedroom. He claimed that he then went into the living room (at the southwest end of the apartment) and fell asleep on the couch in that room. He stated that he had been sleeping in the living room when something woke him up. Upon waking, he saw that the wall directly across from him, i.e. the east interior wall of the living room, was on fire. He claimed that he ran from the room, yelling and screaming that there was a fire in the home. Being unfamiliar with the house and the floor plan, he saw a door in the kitchen area which he tried to kick open, only to discover that the door he was kicking was the door to the bathroom. He claimed that he saw a light shining from one of the doors on the east side of the home and lunged through the door to the outside of the house. Jefferson followed behind him.

DiNieola further stated that, once outside, he ran to the front (south side) of the home and yelled for others to call the fire department. He thought he recalled going upstairs to take Cora Jefferson to safety, but he was not sure. Once the fire department had arrived and began fighting the fire, he had felt there was nothing that he could do and, it being late, he left the scene and went to his mother’s house to sleep.

DiPaolo and Gunter next interviewed Cora Jefferson, who had been sleeping upstairs with Eugene Pitts at the time of the fire. Mrs. Jefferson confirmed that her son Michael, DiNieola and Sweet had been downstairs at the time of the fire, while she and Mr. Pitts had been upstairs. Mrs. Jefferson recalled hearing screaming and smelling smoke. She then attempted to run down the stairs to safety. She recalled being about halfway downstairs when someone (she thought DiNicola) grabbed her arm and pulled her down to the ground. Meanwhile, Pitts was upstairs on the second floor. Some witnesses to the fire, along with Cora Jefferson, had yelled for Pitts to jump out of the window, but he did not do so and eventually died on the stairwell to the first floor.

DiPaolo and Gunter spoke with DiNicola again the following day, September 1, 1979. That morning, DiNicola came to the police station and was questioned about the exact location where he had allegedly been sleeping at the time of the fire. Upon DiNieola’s request, the officers accompanied him to the scene of the fire so that he could physically show them where he had been sleeping. Together, they walked through the remains of Sweet’s apartment. Upon entering the living room area, DiNicola grabbed a piece of wood and began digging through the ashes and debris. He remarked that, if he could locate his sandals, he would be able to point out where he had been sleeping. DiNicola explained that, upon awaking to the fire, he had run out of the house, leaving his sandals in the living room next to the couch on which he had lain. He dug through the debris and presented to the officers what appeared to be the burnt remains of a sandal. He pointed to that spot as the location where he had been sleeping. The detectives noted that a portion of a couch remained in place against the west wall of the living room in the southwest corner of the living room. DiNicola remarked that the source of the fire was probably the stereo. The stereo had formerly rested against the east interior wall of the living room, directly across from the couch on which DiNicola allegedly had lain.

On September 5, 1979, Troopers Bellotti and May returned to the scene of the fire. At the request of Detective DiPaolo, they undertook a more detailed inspection of the living room, especially the area around the stereo and the east wall of the living room. Low burn patterns in and around the stereo suggested to the troopers that this was another point of intense burning and that, here too, some type of accelerant had been used. The troopers inspected the electrical outlet by the stereo and ruled out an electrical fire as a possible cause. They then collected additional samples, including a piece of floor board near the stereo and part of the cabinet which had held the stereo. These samples were submitted for chemical analysis. It was subsequently determined that the stereo cabinet showed traces of stoddard solvent.

DiPaolo next spoke to DiNicola on September 6, 1979 at Wilson Junior High School, where DiNicola was working on a job for McCreary Roofing. At that time DiNicola was again asked if there were any additional details that he could remember about the night of the fire. DiNicola stated that his memory from that night was somewhat “foggy,” and that he could not recall what had taken place. He then inquired if the officers had determined whether the stereo was the cause of the fire. DiPaolo responded that the fire had not been electrical. According to the police report, DiNicola then remarked, “You know[,] arson is tough to prove, and in the back of your mind you might know who did it, but you can’t prove it.” (Def.’s App. Vol. V at 2062a.) It appears that DiPaolo found this remark significant, because he pointed out in the police report that no mention had been made to DiNicola about arson being the cause of the fire. (Id.) During this meeting, DiPaolo asked whether DiNicola would be willing to submit to hypnosis with the hope that it would aid his recollection of events. DiNicola agreed and commented that he wanted to find out what had actually happened that night. DiNicola also agreed to submit to a polygraph test.

Meanwhile, that same day Detective Gun-ter and Troopers Bellotti and May visited Sweet at St. Vincent’s Health Center in Erie, where she had been taken for treatment. After reading Sweet her Miranda rights, Gunter and the state troopers took a tape recorded statement from her concerning the events that transpired on the night of August 30, 1979. Although Sweet could not recall all of the details of that evening, she did essentially corroborate Jefferson’s statement about inviting the two men into her apartment, smoking marijuana, allowing DiNicola to take a bath in her tub, engaging in sex with Jefferson, and being in bed with Jefferson at the time the fire broke out. (See generally Pl.’s App., Ex. B.)

Sweet recalled that, as she drove up to her house on the evening of August 30,1979 with her children, she spotted DiNicola and Jefferson outside together smoking marijuana and drinking beer. She explained that she had previously had an argument with Jefferson about where he was parking his truck and, feeling badly about the argument, she sought to smooth things over and make amends. As Sweet approached Jefferson and DiNicola and began talking to them, they offered her some marijuana, which she tried. Sweet then asked if one of them would help her with a ease of beer that she had just purchased. DiNicola retrieved the case of beer from the trunk of Sweet’s car and carried it into her apartment. Jefferson also was invited into the apartment. Once inside, Sweet offered them each a beer. Sweet had only known Jefferson for a few days and had never before met DiNicola, whom she described to the police as a “weird person.” Once inside, Jefferson, DiNicola and Sweet all sat around her kitchen drinking beer. At some point, Jefferson told Sweet that he had some marijuana for her to try. Sweet remembered telling Jefferson to go and get the marijuana while she put her children to bed. After Jefferson came back downstairs, they smoked the marijuana, which Sweet described as very strong. Sweet recalled asking “what about Louie?” and Jefferson replied that DiNicola had “been at it all day.”

Sweet corroborated the fact that, while they were all in the kitchen, she received a telephone call from a friend in Texas. She remembered talking to him from approximately 10:00 to 10:30 p.m. During this time, she remembered sensing “commotion” in the kitchen — somebody left and reentered the apartment twice. Sweet also remembered being concerned that she had left her purse in the kitchen and that the purse contained several hundred dollars as well as her wallet and car keys. She recalled going into the kitchen, grabbing her purse and bringing the purse into the living room while on the telephone.

Sweet verified that, after she got off the telephone, DiNicola asked permission to take a bath in her bathtub. She consented. Sweet and Jefferson then proceeded into the living room and listened to music on her stereo. Sweet informed the officers that, during this time, she had candles burning; however, she strongly denied that these could have been a cause of the fire. Sweet explained that the candles were “dripless” candles, which were positioned in holders extending out from the wall. She explained that she had already partially burned the candles down the day before. Sweet also had other candles enclosed in glass cases which she felt were safe and could not have caused a fire. She recalled that she had a candle lit near the stereo in the living room; however, she claimed that this candle would not bum right and she did not believe it was even still lit by the time that she and Jefferson went into the living room to listen to music. She thought she recalled that the candle had been lit and had gone out a short time later. Sweet remembered being very high from the marijuana during this time when she was alone with Jefferson.

Sweet also recalled knocking on the bathroom door while DiNicola was taking a bath, and asking him to hurry up because she had to use the toilet. DiNicola told her to come in and stated that he would not look at her while she was in there. She then entered the bathroom and recalled DiNicola sticking his head out, with soap all over his face and saying, “See ... I promise, I won’t look.” Sweet then asked DiNicola to hurry up so that she could take a shower.

After leaving the bathroom, Sweet saw Jefferson standing at the corner of her bedroom. She and Jefferson entered her bedroom and began having sex with the bedroom door open. Shortly thereafter, Sweet recalled DiNicola coming out of the bathroom and passing by her bedroom door. She remembered hearing DiNicola “fumbling around” and asked Jefferson what DiNicola was doing. Jefferson replied, “Don’t worry about him. He’s okay. He’s just drunk. He’s just smashed. He’ll sit down.” Sweet then expressed concern about DiNicola getting into her stereo. Jefferson again assured Sweet that DiNicola would be alright. Sweet recalled hearing “this racket going on ... like there’s this fumbling around, and it was bugging me.” She stated that the next thing she recalled was smelling smoke and seeing Jefferson jump up from the bed. Sweet recalled that she saw smoke everywhere. She claimed that she ran into the kitchen and saw smoke coming from the living room. She then ran into the dining room (or den area), and saw that smoke was swirling and rolling. She saw that the living room was in flames, “clear to the ceiling.” Sweet recalled that she ran outside and began screaming for someone to save her children.

Insofar as DiNicola’s actions were concerned, Sweet recalled hearing him “running around” the apartment prior to the time that she first noticed the smoke. She recalled DiNicola saying, “Come on, let’s get out of here.” Sweet commented to the officers that she had felt there was something strange about DiNicola. According to the transcript of the interview, Sweet remarked that:

there was something about [DiNicola] because I remember I was ... when Mike and I were talking alone I was asking about Louie, you know, I said, “he’s a weird dude.” [Jefferson] says, “yeah, he’s been taking stuff all day and he’s been smoking all day and he’s just pretty screwed up,” and I said, “Oh, is that it?” And [Jefferson] said, “Well, he’s kind of strange too, but he’s my friend.”

(Pl.’s App., Ex. E at 7.)

On September 10,1979, four days after the interview with Sweet, DiNicola was escorted by DiPaolo and Gunter to the office of Defendant Vorsheck. (See Def.s’ App., Vol. V. at 2067a et seq.) At deposition, DiNicola noted that the purpose for his going to see Vor-sheck was to find out whether under hypnosis he could recall seeing another individual (presumably, the perpetrator) run out of Sweet’s apartment ahead of himself on the night of the fire. Before entering Vorsheck’s office, DiNicola was given his Miranda rights, which he verbally waived.

Gunter testified at deposition that, at one point early in the meeting, DiPaolo and Vor-sheck briefly stepped into another room while DiNicola remained alone in the waiting area with Gunter. During DiPaolo’s brief absence, DiNicola allegedly turned to Gunter and stated, “If it turns out I did this, I want the firing squad.” Gunter testified that DiN-icola then struck a “military pose” and mimicked “spraying the wall with a machine gun, including the at-at-at noises.” (Def.s’ App., Vol. Ill at 1158a.) This incident is also noted in the officers’ police report. (Def.s’ App., Vol. V at 2067a.)

What happened next is a matter of somewhat differing accounts. Gunter and DiPaolo each maintain that they remained downstairs together in the waiting area to Vorsheck’s office while Vorsheck and DiNicola proceeded upstairs together to attempt hypnosis. Both officers testified that, at some point, Vorsheck came downstairs where they were waiting and related that the session was not going well and that DiNicola was “fighting” the hypnosis. Vorsheck then returned back upstairs to make another (apparently unsuccessful) attempt at hypnotizing DiNicola. However, DiNicola claimed at deposition that DiPaolo accompanied him and Vorsheck upstairs and remained in the same room until the attempted hypnosis was aborted. In any event, however, it is undisputed that Vor-sheck was never able to achieve a hypnotic regression. DiNicola admitted at deposition that he thought he recalled Vorsheck telling him “you’re not being cooperative.”

It is also undisputed that, after the aborted attempt at hypnosis, Vorsheck and DiNicola proceeded downstairs into the waiting room area of Vorsheck’s office. At some point, then Assistant District Attorney Shad Con-nelly arrived at the office and remained in the waiting area where the others were gathered. According to Gunter, a casual conversation ensued during which Vorsheck asked DiNicola whether he had ever been involved in a fire prior to the one at Sweet’s apartment. DiNicola then volunteered that he had prior experience burning down sections of his barn by way of controlled fire. He spoke of starting a field fire on his farm. He also spoke of the fact that Indians had used controlled fires to burn out sections of forests. According to Gunter, DiNicola went on at some length talking about fires, jumping from one fire subject to another, without any prodding or encouragement by the police. He spoke of a prior occasion burning a pile of manure, explaining how it fascinated him that the pile would burn very slowly and the fire would apparently die, then rekindle and eventually consume the entire pile. According to Gunter, DiNieola started “rambling” about being in Vietnam and how when the “Ho Chi’s catch fire, ... you run for your life and dive in ditches.” Gunter recalled that DiNieola seemed to have a fascination with fires. DiPaolo in his deposition described DiNieola as “excited” while carrying on this discourse about fires. In their police report, DiPaolo and Gunter recounted this exchange thus:

It seemed that once DiNieola started talking about this area of fires he became very involved in it. Then it got to the point where he realized what he was doing, that he was talking about it and making us know that he knew a lot [sic] about fires and he stated “you really think that I burned those kids up”. Dr. Horshak [sic] stated at this time “nobody stated that you did”. Then all of a sudden the subject of fire was gone and he wouldn’t talk about it any more.

(Def.’s App., Vol. V at 2067a.)

DiNieola does not dispute that this conversation occurred, but he characterizes the context in which it occurred somewhat differently. He claims that the conversation took place only between himself and Gunter. He claims that Gunter, being a former member of the military (like DiNieola), asked DiNico-la if he had ever been involved in fires before. DiNieola then related his experience of seeing bombings in the Vietnam War and his experience of burning the remains of an old barn on his property.

In any event, after this episode at Vor-sheck’s office, both DiPaolo and Gunter were focussing on DiNieola as a prime suspect in the fire. As reflected in a police report dated September 13, 1979, the detectives found it significant that certain of DiNieola’s statements appeared to be untrue. (Def.s’ App., Vol. V at 2068a.) For example, DiNi-cola had stated that, upon discovering the fire, he had run into Sweet’s bathroom due to his lack of familiarity with the apartment, then ran out of the house without any shoes on. However, Jefferson had stated that he asked DiNieola to kick down the door to the upstairs apartment because he saw that DiN-icola had sneakers on. Cora Jefferson had verified that DiNieola did, in fact, bring her out of the burning house. Thus, there was a discrepancy in the facts in terms of what, if anything, DiNieola was wearing on his feet at the time of the fire.

Seeking to obtain more information from Jefferson, DiPaolo and Gunter requested that he undergo a polygraph examination at the Erie police station. The officers apparently suspected that DiNieola might have talked to Jefferson about the night of the fire, since the two men were friends and coworkers. Jefferson did submit to a polygraph examination on September 12, 1979. A police report indicates that, about half-way through the examination, Jefferson got upset about some of the questions he was asked and refused to continue. (Def.s’ App., Vol. V at 2068a.) However, it was noted that during the course of the polygraph exam Jefferson had tested deceptive to two questions: “Do you know anything about the fire?” and “Do you know who possibly might have been responsible for the fire?” (Id.)

Following the polygraph, Jefferson was given his Miranda rights and interrogated. A police report indicates that Jefferson denied any involvement in the fire or any knowledge concerning it. He stated, however, that DiNieola had advised him the previous morning “just to tell the police that the f— place was unfit to live.” (Def.’s App. Vol. V at 2069a.) Jefferson also related that DiNieola talked about fires and barns all the time and had burned his own barn down. The officers asked Jefferson again about his recollection as to what, if anything, DiNieola was wearing on his feet at the time of the fire. Jefferson remained steadfast in insisting that DiNieola had been wearing something on his feet. He specifically remembered that this was the reason he had directed DiNieola to kick in the door to his mother’s apartment.

While under interrogation, Jefferson again went over the events in Sweet’s apartment prior to the fire. He recalled that he, Sweet, and DiNicola had all smoked marijuana that evening and were “a little high.” According to the police report, Jefferson told the officers that “they” (presumably he and DiNico-la) had been grabbing Sweet and kissing her. Jefferson corroborated Sweet’s previous recollection of going into the bathroom while DiNicola was bathing. He recounted going into Sweet’s bedroom and having sex with her, after which he had dozed off to sleep. Jefferson claimed that Sweet woke him up, asking “What the hell is all that noise?,” to which he replied that it was “probably [DiNi-cola] getting sick.” Jefferson claimed to have seen DiNicola walking or running in a position bent over as if he was going to vomit. He described DiNicola as appearing “like a mad-man,” ranting and raving and knocking things over, appearing as if he was running from something, making noises. In contrast to his original statement, Jefferson now denied that DiNicola had ever yelled “fire, let’s get out,” or anything of that nature. He insisted that what woke him and Sweet up was the sound of DiNicola “banging into everything” in the apartment. By the time he and Sweet realized that there was a fire in the house, they had to run out because the apartment was engulfed in flames and it was too late to get the children. Jefferson told the officers that, after he had exited the house and things had calmed down, “he thought in his own mind that it appeared as if DiNicola had been up for awhile and had not been sleeping.” He also recalled that DiNicola had been “too cool” in terms of not panicking over the fire. (Def.s’ App, Vol. V at 2069a.)

During the interrogation, the issue was raised whether Jefferson knew something more than he was telling the police. Jefferson reportedly remarked, “You know Louie’s Italian and he’s got a lot of relatives.” DiPaolo and Gunter apparently took this as an indication that Jefferson had more information but was afraid to talk. (Def.s’ App., Vol. V at 2070a.) Their report indicates that the detectives “hammered” him on that point, but Jefferson denied any additional knowledge about the fire.

On September 17, 1979, DiPaolo and Gun-ter returned to the office of Defendant Vor-sheck with Deborah Sweet, who had agreed to undergo hypnosis in an effort to assist the investigation. What occurred during this hypnotic session is a matter of some disagreement between the parties. However, it is undisputed that Sweet was successfully placed in a hypnotic regression and, while under hypnosis, gave a more detailed account of the night of the fire. (See generally Pl.’s App., Ex. R.) In this account, Sweet related a number of facts that incriminated DiNicola in the fire. For example, Sweet recalled an incident earlier in the evening when DiNicola had made a “pass” at her, which she rejected — thus buttressing a possible motive for starting the fire. She also specifically remembered hearing DiNicola leave the house during the time that she was in bed with Jefferson, and recalled that the door had not locked behind him. This fact was consistent with the officers’ theory that DiNicola left the house to obtain the accelerant while Jefferson and Sweet were in bed together. Sweet further recalled having some concern while in bed with Jefferson that DiNicola might “bother” her daughter. Finally, she recalled coming out of her bedroom after the fire started and seeing DiNicola standing over the fire and staring at it.

Meanwhile, DiPaolo and Gunter engaged in efforts-to locate Pete Moore, the former boyfriend of Cora Jefferson. A police report indicates that Moore was located on September 20, 1979 and, after receiving Miranda warnings, gave a statement to the police. (See Def.s’ App., Vol. V at 2036a, 2083a.) Moore admitted having made threatening statements to Cora Jefferson in the past, but stated that he still loved Cora and would never do anything to harm her. In his statement, Moore claimed to have spent the evening of August 30, 1979 with a companion attending various bars and ultimately spending the night at his companion’s house in McKean, Pennsylvania. Moore agreed to take a lie detector test, which was performed on October 1. According to Detective Robert Johns, who performed the test, Moore passed the polygraph without any signs of deception. A police report generated by DiPaolo and Gunter on October 3,1979 indicates that they felt Moore at that point had been cleared as a possible suspect. (Def.s’ App., Vol. V at 2083a.)

DiNieola had likewise been scheduled to take a polygraph examination, which was administered by Detective Johns on October 2, 1979. A police report notes Detective Johns’s belief that DiNieola had deliberately undermined the polygraph results by moving around in his chair and coughing during the interview. In addition, Detective Johns felt that DiNieola had tested “deceptive” in response to two questions: “What do you know about the fire?” and “Did you start the fire?” (Def.’s App., Vol. V at 2083a.)

Following the polygraph, DiNieola was again given his Miranda rights and was interrogated by DiPaolo and Gunter. (See generally Def.s’ App., Vol. V at 2082a, 2084a et seq.) Then Assistant District Attorney Shad Connelly was also present. According to the officers’ report, DiNieola began talking like a “rav[ing] maniac,” stating that he thought the fire was an electrical fire and that DiPao-lo and Gunter just wanted to stick a charge on someone, that the house was not fit to live in, that there was “no way” this fire was an arson and that the whole thing was just “an insurance job.” (Def.s’ App., Vol. V at 2082a, 2084a.) The officers then asked DiNieola about Sweet knocking on the bathroom door while he was bathing. He responded that this incident never happened and that the police were “crazy.” He denied ever leaving Sweet’s apartment after his bath and specifically denied starting the fire. (Id.) The report also recounts that DiNieola began screaming that the police thought he is a “kid killer” and that they were “nuts.” (Id.) DiN-icola then asked ADA Connelly what he thought. Connelly replied that he thought DiNieola had started the fire. DiNieola responded that “they” were all “f-toads,” and were crazy. Upon being informed that he was free to leave, DiNieola departed the police station. (Id. at 2082a.)

On January 30, 1979, DiPaolo and Gunter met with Assistant District Attorneys Shad Connelly and Michael Cauley and Captain Ruffo of the Erie Police Department. (Def.s’ App., Vol. V at 2091a.) After they reviewed all of the police reports in the case, it was agreed that DiNieola would be charged for the arson and homicides. Subsequently, a conflict arose which ultimately disqualified the entire Erie District Attorney’s office from further involvement in the case and resulted in further delays. Attorney Michael Fetzner was later appointed as special prosecutor. Mr. Fetzner directed that certain actions be taken prior to the filing of charges against DiNieola. Among other things. Fetzner directed that the Erie police; (i) check with the gas company for the possibility of a gas leak at Sweet’s residence; (ii) contact the owner of Sweet’s apartment relative to any prior fires that may have occurred at the premises; (iii) check Sweet’s mental history for incidents of prior mental health treatment; and (iv) obtain a statement from Cynthia Pryber, Pete Moore’s alleged companion on the night of the fire. (Def.s’ App., Vol. V at 2092a.)

All of the foregoing requests were fulfilled by the police. (See Def.s’ App., Vol. V at 2093a et seq.) The owner of Sweet’s apartment house, Charles Scalise, was contacted regarding the issue of prior fires at 622 West 16th Street. It was determined that a fire had previously occurred at the house in 1976 as the result of the second floor tenant smoking in bed. The renovation of the house had been paid for by insurance. At the time of the fire on August 30-31,1979, the house had been insured for approximately $23,000.00. Upon contacting National Fuel Gas company, the police were advised that no leak was detected in the gas line leading to the house. However, the inside line and appliances could not be tested due to fire damage. In addition, the officers investigated Sweet’s mental health history and learned that her hospitalization at St. Vincent’s Health Center following the fire was the first time she had ever received mental health treatment. Finally, on February 11,1980, the police took a statement from Cynthia Pryber. Ms. Pryber stated that she was with Pete Moore from 4:30 p.m. on August 30, 1979 until about 9:30 a.m. the following morning. During that time, Pryber and Moore were reportedly together at the K & Z tavern, then subsequently the McKean Tavern, and then finally Pry-ber’s home in McKean. (Def.s’ App., Vol. V at 2041a-42a.) Following DiNicola’s arrest, Pryber’s brother corroborated the fact that the couple were at Pryber’s house at least between the hours of 11:00 p.m. to 1:00 am on the night of the fire. (Id. at 2028a-29a.)

On March 26, 1980 DiNicola was arrested and charged with arson and three counts of murder in the second degree.

(iii) The Issue of Probable Cause

As discussed supra, probable cause exists when the “facts and circumstances are ‘sufficient to warrant a prudent [person] in believing that the [suspect] had committed ... an offense.’ ” Sharrar, 128 F.3d at 817-18 (quoting Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). Based on an extensive review of the record, including all of the in-court testimony, depositions and reports of state and local law enforcement agents documenting their investigation, the Court concludes that no genuine issue of fact exists as to probable cause because, as a matter of law, DiPaolo and Gun-ter had probable cause to believe that DiNi-cola committed the offenses for which he was arrested and charged.

By the time that DiNicola was arrested and charged in March 1980, the investigation had been ongoing for over six months. Dozens of witness interviews had been conducted, as is documented in the criminal investigation file and, in particular, multiple statements had been taken by the key witnesses. The state fire marshals, after conducting an investigation into the cause and origin of the fire, had ruled the fire an arson. There was evidence that the perpetrator had used a flammable liquid subsequently identified as stoddard solvent. This effectively ruled out the possibility that the fire had been started by accidental means or that it was an electrical fire, notwithstanding DiNicola’s protestations to the contrary. The accelerant used in the fire had been identified as one of the solvents used by and available at the McCreary Roofing Company, where both Jefferson and DiNi-cola worked. It had also been established that Stoddard Solvent was sold only in 55 gallon drums to commercial establishments.

In addition, multiple statements obtained from Jefferson, Sweet and DiNicola all corroborated the fact that DiNicola was the only one of the three adults in Sweet’s apartment unaccounted for at the time the fire broke out and, thus, the only one of the three with the apparent opportunity to start the fire. Especially noteworthy is the physical layout of Sweet’s apartment which, when considered in light of the point of origin of the fire, supports the officers’ suspicion that DiNicola was the perpetrator. Having seen Sweet’s apartment first hand, DiPaolo and Gunter were aware that there was only one operational entrance and exit, which was located at the north end of the apartment off of the kitchen. They were also aware that DiNi-cola claimed to have fallen asleep in the living room, which was located at the opposite end of the apartment, at the southwest corner of the building. The officers were further aware that accelerant had been spread both in the den and around the stereo in the living room. The fire marshals’ testimony and reports establish that they believed the fire had started in the den and proceeded into the living room area. DiNico-la had claimed that he was asleep in the living room when he awoke to the sound of the fire, and then fled the house. In order to believe DiNicola’s account, one would have to accept that the perpetrator entered the house, passed by Sweet’s open bedroom door without being detected either by Sweet or Jefferson, proceeded through the den to the living room — the very room in which DiNico-la claimed to be sleeping — sprinkled acceler-ant over the stereo in that room, and then proceeded back through the apartment, again without being detected. One also must accept that, although DiNicola never heard the intruder in the very room where he slept, he managed to awake to the fire in time to make a narrow escape out of an apartment with which he lacked familiarity, despite his reportedly intoxicated state and the presence of thick smoke in the house. Indeed, not only did he escape unharmed from the house, but he was the first one out. By all accounts, the fire was extremely fast moving and consumed the entire house within minutes — even seconds, according to two witnesses. (Def.s’ App., Vol. V at 2055a.) Thus, DiNicola would have to have awoken just moments after the fire was started. And, moreover, he would have to have passed through the doorway from the living room into the den — an area identified by the Pennsylvania State Police as one of heavy burning, and also traverse the den area, which the fire marshals located as the point of origin. Given these obstacles, the window of opportunity for DiNicola to make a safe exit from the apartment was narrow indeed, assuming his version of events. At the same time, it is evident that Sweet’s children, who were presumably more familiar with the apartment, and whose rooms were not found to contain traces of accelerant, could not manage to escape in time to save themselves. In the face of such evidence, prudent police officers would have been justified in finding DiNico-la’s account somewhat dubious.

At the same time, DiPaolo and Gunter had information from Sweet’s original (September 6, 1979) statement which suggested that DiNicola had been up and about in the apartment making “a racket” while she and Jefferson were in bed together. Jefferson corroborated the fact that he and Sweet had heard DiNicola moving about in the apartment and “banging into everything.” (Def.s’ App., Vol. V at 2069a.) This information placed DiNi-cola in the apartment and moving about prior to the outbreak of the fire. It is plausibly consistent with the officers’ theory that, while Sweet and Jefferson were in bed together, DiNicola had obtained the solvent and was spreading it about the apartment. Moreover, DiNicola’s deposition testimony suggests that the officers questioned him about whether he had seen anyone leaving the apartment ahead of himself. Thus, they apparently pursued the theory that another individual other than DiNicola might have started the fire. However, DiNicola consistently denied ever seeing an intruder in the apartment even though, according to his account, he would have had to have awoken just moments after the fire was ignited.

Apart from the issue of opportunity, there was evidence to suggest that DiNicola had knowledge concerning fires. As noted above, DiNicola had made known his familiarity with controlled fires during his September 10, 1979 encounter with DiPaolo and Gunter at Vorsheck’s office. The police obviously found DiNicola’s comments and his demeanor significant. Gunter, for example, testified at deposition that DiNicola seemed to have a “fascination” with the subject of fire, and it was this exchange at Vorsheck’s office that led Gunter to believe that DiNicola actually “was capable of doing what was done.”

In addition, the police were aware of several other statements by DiNicola that were, at the least, suspicious. They were aware, for example, of DiNicola’s suggestion that the fire was electrical and that the stereo was the source. Subsequent investigation by the state fire marshals revealed that the stereo area had been doused with stoddard solvent. DiNicola’s focus on the stereo as a possible source of the fire is somewhat significant in light of the fire marshals’ finding that the fire began in the den and progressed into the living room. According to the fire marshals’ theory, by the time DiNicola awoke to see the stereo and east wall of the living room in flames, the den would already have been engulfed in flames. In light of these facts, prudent police officers in the position of DiPaolo and Gunter could reasonably have viewed DiNicola’s suggestion as an attempt to divert their attention from a possible arson and mislead them