Hopper v. Fenton , 665 F. App'x 685 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 29, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DANNY DEWAYNE HOPPER,
Plaintiff - Appellant,
v. No. 16-5006
(D.C. No. 4:14-CV-00229-JED-FHM)
TODD FENTON; CITY OF (N.D. Okla.)
CLEVELAND, OKLAHOMA,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, GORSUCH, and MATHESON, Circuit Judges.
_________________________________
The mothers of two young girls, L.M. (age eight) and K.G. (age twelve),
reported to police that Danny Dewayne Hopper had sexually assaulted their
daughters. Officer Todd Fenton interviewed the mothers and observed separate
forensic interviews of L.M. and K.G. Both girls maintained that Mr. Hopper had
raped K.G. in his bedroom, but their accounts differed on several other points.
Officer Fenton drafted a probable cause affidavit to obtain a search warrant for Mr.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Hopper’s home. Following the search, he arrested Mr. Hopper. Because Officer
Fenton had not obtained an arrest warrant, the next day he drafted a second probable
cause affidavit to support the arrest. Mr. Hopper was charged with first degree rape
and lewd or indecent proposals or acts to a child under the age of sixteen. At the
preliminary hearing, K.G. initially gave conflicting testimony about what happened at
Mr. Hopper’s house and ultimately admitted that she had lied about being in his
bedroom. The prosecution then dismissed the charges without prejudice. By that
point, Mr. Hopper had already spent six months in jail.
After the criminal case against him ended, Mr. Hopper sued the City of
Cleveland, Oklahoma, and Officer Fenton under 42 U.S.C. § 1983. He alleged that
Officer Fenton had violated his constitutional rights by unlawfully omitting from the
affidavits information that would have vitiated probable cause. The district court
granted summary judgment to both defendants because no constitutional violation
had occurred. It held that probable cause would have existed even taking into
account the facts Mr. Hopper says had to be included in the affidavits. We agree
with the district court’s analysis.
Probable cause does not require proof beyond a reasonable doubt or even a
preponderance of the evidence. “Instead, the relevant question is whether a
substantial probability existed that the suspect committed the crime, requiring
something more than a bare suspicion.” Kerns v. Bader, 663 F.3d 1173, 1188 (10th
Cir. 2011) (internal quotation marks and citations omitted). Accordingly, we held in
Easton that discrepancies in the statements of two young boys regarding an alleged
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sexual assault did not vitiate probable cause: the inconsistencies did “nothing to
undermine the solid core of the children’s statements regarding the . . . assault.”
Easton v. City of Boulder, 776 F.2d 1441, 1450 (10th Cir. 1985).
This case presents the same scenario as Easton: even considering all of the
facts Mr. Hopper emphasizes, the core of the girls’ allegations would have sufficed to
show a substantial probability that the crime had occurred. As the district court
found, L.M.’s and K.G.’s statements in their forensic interviews were largely
consistent regarding their principal claim that Mr. Hopper had sexually assaulted
K.G.:
Both alleged that Hopper and KG were nude in Hopper’s bedroom, on the
bed, with Hopper on top of KG. Both reported that he kissed KG down
from her mouth and described conduct consistent with Hopper performing
oral sex on KG. Both described LM being in the bathroom and/or hallway
at some point in time, and both indicated that LM watched Hopper have sex
with KG on the bed.
Mr. Hopper doesn’t contend that the affidavits failed to summarize this portion
of the girls’ accounts accurately. Neither does he argue that the evidence described
above fails to establish probable cause. Instead, he says certain facts omitted from
the affidavits would have undermined the girls’ credibility and thus vitiated probable
cause, but like the district court before us we don’t see how.
First, Mr. Hopper points out that L.M.’s parents initially disbelieved her
account because she had lied in the past. But Officer Fenton wasn’t obligated to
ignore L.M.’s statements just because she had previously lied in another context.
After all, “[a] witness may be inaccurate, contradictory and even untruthful in some
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respects and yet be entirely credible in the essentials of [her] testimony.” Id. at 1450.
As the district court observed, someone who has lied before can still be raped or
witness a rape. So it is that modifying the affidavits to include the mother’s initial
disbelief of her daughter wouldn’t have negated probable cause. And that is
particularly the case when the affidavit would also have reflected the mother’s
ultimate decision to inform the police.
Second, Mr. Hopper says the affidavits should have disclosed that K.G. and
L.M. initially leveled, but later recanted, the claim that he had also raped L.M.
Under our precedent, however, probable cause survives this sort of contradictory
statement regarding incidents separate from the alleged crime. In Easton, the alleged
victim gave conflicting statements about the number of times he was assaulted, where
the assaults occurred, and whether he had ever been in Mr. Easton’s apartment. Id. at
1449. We nonetheless found that the core accusation remained intact because the two
boys had consistently described an assault in the apartment complex’s laundry room.
Id. at 1450-51. For the same reason, the recanted allegation of the rape of L.M.
would not have vitiated probable cause with respect to the rape of K.G.
Finally, Mr. Hopper highlights certain points on which the girls’ accounts
diverged. These include points both significant and minor. The most important
discrepancies concern whether Mr. Hopper had shown the girls a pornographic
movie, whether he had threatened them with a bloody knife, and whether he had
touched L.M.’s breasts. There are more, but we think it sufficient to note that none
bears on the central question whether he had sexually assaulted K.G. On that
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fundamental issue, the girls’ statements were consistent. Accordingly, these
discrepancies do not nullify probable cause.
We do not minimize the fact that Mr. Hopper has suffered severely due to the
accusations against him. But the fact also remains that, as the district court
recognized, the Supreme Court has instructed us to extend qualified immunity to
officers seeking to do their jobs unless they are “plainly incompetent or . . .
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
The judgment of the district court is affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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