[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 19, 2002
No. 01-15089
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-00164 CV-D-S
SHIRLEY DAHL,
Plaintiff-Appellant,
versus
JIM HOLLEY, individually and as an employee
of the City of Dothan,
STEVEN PARRISH, individually and as an
employee of the City of Dothan, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(November 19, 2002)
Before BIRCH and COX, Circuit Judges, and GEORGE*, District Judge.
COX, Circuit Judge:
*
Honorable Lloyd D. George, U.S. District Judge for the District of Nevada, sitting by
designation.
In this civil rights action, Shirley Dahl appeals the district court’s grant of
summary judgment in favor of the City of Dothan, Alabama and several officers of the
Dothan Police Department. Dahl claims that the officers and the City violated her
rights under the First and Fourth Amendments to the United States Constitution in
arresting her and searching her property. Because the record does not show that
Dahl’s constitutional rights were violated, we affirm.
I. Background
A. Facts1
This action arises from the circumstances underlying the investigation and
arrest of Dahl by several police officers employed by the City of Dothan. The events
leading up to Dahl’s arrest began on December 12, 1997, when Sgt. Jim Holley
received a tip from confidential informant Rustin McCardle that Dahl’s son was in
possession of illicit drugs. Based on McCardle’s tip, Holley stopped and searched
Dahl’s son, finding him to be in possession of both cocaine and marijuana. Dahl’s son
gave a taped statement admitting that the drugs were his, and he was released. Later
that night, Dahl’s son told his mother that McCardle had provided the information
resulting in his encounter with Holley.
1
In reviewing the district court’s disposition of a summary judgment motion, we are
required to resolve all issues of material fact in favor of the non-moving party, which in this case
is Dahl. See Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th Cir. 1992).
2
The next day, McCardle visited Dahl to inquire about her son. During this visit,
McCardle told Dahl that he constantly was searched by the police and felt trapped.
McCardle also told Dahl that he wanted to “get out,” but he did not know how to do
so. In the following months, Holley contacted Dahl’s son on numerous occasions,
attempting to recruit him as a confidential informant. Remembering McCardle’s
statements, and based on information gained from other sources, Dahl became
concerned for her son’s safety. She also disapproved of the tactics used by the police
in recruiting confidential informants, which she thought to be corrupt and illegal.
Dahl brought these concerns to the attention of CLARA,2 a citizens’ group
founded by Dahl to provide information about, and encourage reform of, the legal
system. Another member of CLARA, Jeff Hargett, spoke to the mayor about the
police department’s recruitment and use of confidential informants, and the mayor
agreed to investigate the matter if Hargett could provide evidence to corroborate
CLARA’s allegations. Dahl then contacted McCardle and asked him to meet with her.
Dahl and McCardle met on February 23, 1998, approximately one week after
the police obtained an arrest warrant for her son.3 Dahl told McCardle about CLARA
and about her suspicion that the police department was corrupt. McCardle told Dahl
2
“CLARA” stands for “Citizens for Legal Accountability and Reform in Alabama.”
3
Holley obtained the warrant on February 17, 1998.
3
that the information she had gathered about the police was correct, and he agreed to
tell the same thing to Hargett the next day. At the meeting with Hargett, however,
McCardle expressed concern that, if he helped CLARA, the police would resurrect old
drug charges against him. Should that happen, McCardle indicated, he would not be
able to afford an attorney for his defense. Dahl and Hargett pledged that CLARA
would help McCardle and would pay up to $10,000 in attorney’s fees on his behalf.
Hargett then set up a meeting with the mayor, at which McCardle was to corroborate
CLARA’s allegations against the police department.
On February 25, 1998, concerned that his anonymity as a confidential informant
had been compromised, McCardle telephoned the police department and asked to
speak to Sgt. Antonio Gonzalez. McCardle inquired if Gonzalez had exposed him as
the informant against Dahl’s son. Gonzalez answered that he had not done so, but he
informed McCardle that Dahl was spreading rumors that McCardle had planted drugs
on her son. Gonzalez urged McCardle to come in and talk to the police about the
situation. McCardle then talked to Holley, who said that McCardle was headed for
trouble and also urged him to tell the police what was going on. McCardle told Holley
that Dahl offered him $10,000 to lie about the facts and circumstances underlying the
arrest of her son. After reporting McCardle’s statements to Lt. Steve Parrish, Holley
asked McCardle to provide a written statement of his interactions with Dahl.
4
In his written statement, McCardle repeated his accusation that Dahl offered
him money to lie about the circumstances of her son’s arrest. According to the
statement, Dahl indicated that she “would do everything she could do to help her son,”
(R.2-48, Ex. 19 at 2), and she told McCardle that she wanted him to tell both Hargett
and the mayor that “Holley set [her son] up.” (Id. at 3.) After Dahl said this,
according to the statement, McCardle sat back in his chair and remained silent for a
few minutes. Eventually, Dahl allegedly said to him, “You want to know what is in
it for you don’t you [?]” (Id.) McCardle’s statement indicated that Dahl then held up
ten fingers and said “Ten Thousand.” (Id.) Finally, the statement indicated that Dahl
told McCardle to keep quiet about their arrangement when he talked to Hargett,
because Hargett was “legit and would not have any part of an illegal act.” (Id. at 4.)
After questioning McCardle about his statement, the police commenced an
investigation of Dahl, conducted primarily by Sgt. Jon Beeson and Sgt. David Jay.
As part of their investigation, the police monitored and recorded several telephone
conversations between Dahl and McCardle. In a conversation on February 26, 1998,
after McCardle indicated that he was having second thoughts, Dahl said “[l]et’s just
forget it then.” (R.2-38, Ex. 6 at 2.) However, when McCardle remarked that he
“would feel more comfortable . . . if [he] saw what [he] needed to see first,” Dahl
responded: “So you’re not wrestling with your conscience then, you’re wrestling with
5
your pocketbook.” (Id. at 3.) Later in the same conversation, in response to
McCardle’s requests to see “that,” Dahl said: “Then I have to take care of it all during
the weekend and worry about getting ripped off.” (Id. at 6.) In a subsequent
conversation, on February 27, 1998, McCardle asked if Dahl was going to “show
[him] anything” because he was “hurting” and needed “some money bad.” (R.2-38,
Ex. 8 at 1.) McCardle went on to express his concern that Dahl would not “hold up
[her] end of the bargain.” (Id. at 2.) Dahl responded: “You don’t have to worry about
that, I will, but . . . there is just no way I’m, that I . . . it’s Friday night, and it’s what
. . . 8:10. There isn’t a bank open in town. There is absolutely no way.” (Id.)
The police also recorded several conversations between McCardle and Dahl on
March 1, 1998, the night before the scheduled meeting with the mayor. In one
conversation, McCardle told Dahl that he needed to know “are you gonna show me
my money . . . before I go in that office,” to which Dahl responded: “You know I
wanted to help you with your situation . . . .” (R.2-38, Ex. 11 at 1-2.) In the same
conversation, McCardle referred to lying both to Hargett and to the mayor, (id. at 2.),
and at one point asked if Dahl was going to tell her husband “that you’re gonna . . .
pay me money . . . to lie for you.” (Id. at 5.) To this last statement, Dahl responded:
“I’m gonna tell him the truth.” (Id.) Later that same day, McCardle told Dahl that
“you want me to go in there and lie to the mayor.” (R.2-38, Ex. 12 at 2.) To this
6
statement, Dahl responded: “No, I don’t want you to go in there and lie to the mayor,”
(id.), and later in the conversation, she specifically told McCardle to tell the truth
when he met with the mayor. (Id. at 5.) She also told McCardle that she would not
give him the ten thousand dollars “under these circumstances.” (Id. at 4.) In their last
conversation that day, after making repeated references to his “ten grand,” (R.2-38,
Ex. 13 at 3), McCardle asked if Dahl would be able to help him out with his
“attorney’s fees.” (Id. at 4.) Dahl responded: “If you need any . . . I feel like we can
help you out.” (Id.) Before ending the conversation, McCardle said: “And if you trust
me, then I guess I’ll receive attorneys fees, is that right?” (Id. at 5.) Dahl responded:
“Alright.” (Id.)
On March 2, 1998, around the time originally scheduled for the meeting with
the mayor,4 Dahl was arrested without a warrant and charged with bribing a witness.
While Dahl was held at the police station, Beeson applied for and obtained search
warrants for Dahl’s home and business. In his affidavit seeking issuance of the
warrants, Beeson recounted the events surrounding the search of Dahl’s son, the
statements made by McCardle, and some of the statements made by Dahl in her
recorded conversations with McCardle. (R.2-38, Ex. 19.) Beeson did not, however,
4
The transcript of a recorded conversation that took place between McCardle, Hargett,
and Dahl just prior to Dahl’s arrest reveals that the meeting had been postponed until March 3,
1998.
7
include in the affidavit Dahl’s statements that McCardle should not lie and that he
should tell the truth to the mayor. The search warrants were executed by Beeson, Jay,
and Officer Stacy Robinson, but none of the searches uncovered any incriminating
evidence.
A preliminary hearing was held before the District Court of Houston County,
Alabama, and the court found sufficient evidence against Dahl to bind the case over
to a grand jury. The grand jury indicted Dahl on one count of bribing a witness in
violation of § 13A-10-121 of the Code of Alabama, and the case proceeded to trial in
the Circuit Court of Houston County. After the prosecution rested its case, the court
found that the state had not produced evidence that McCardle had been or would be
a witness in an official proceeding, one of the elements of the crime charged, and
granted Dahl’s motion for judgment of acquittal.
8
B. Procedural History
After her acquittal, Dahl filed this action pursuant to 42 U.S.C. § 1983,5
alleging that Holley, Parrish, Beeson, Jay, Gonzalez, and Robinson (collectively
referred to as “the officers”) violated her constitutional rights by: arresting her without
probable cause, in violation of her rights under the Fourth Amendment; arresting her
in retaliation for speaking out against the police department, in violation of her rights
under the First Amendment; and unlawfully searching her property, in violation of her
rights under the Fourth Amendment. Dahl also alleged that the City of Dothan
violated her constitutional rights by inadequately training and supervising its police
officers. Finally, Dahl alleged several state law claims against the officers and the
City.
The officers and the City subsequently moved for summary judgment. The
district court granted the motion as to Dahl’s § 1983 claims. The district court first
concluded that the officers were entitled to qualified immunity on Dahl’s Fourth
Amendment claims because they had arguable probable cause to make the arrest and
because Dahl failed to demonstrate a constitutional violation with regard to the search
of her property. The district court also concluded that, because the officers had
5
The complaint also brought certain claims on behalf of Dahl’s husband. Mr. Dahl,
however, did not join the notice of appeal, and Dahl’s counsel admitted at argument that Mr.
Dahl was not a party to this appeal.
9
arguable probable cause to arrest Dahl, they were entitled to qualified immunity on
her First Amendment claim as well. Finally, the district court determined that there
was no custom or policy sufficient to hold the City liable for any constitutional
deprivations. Having concluded that summary judgment was appropriate on Dahl’s
federal claims, the district court then declined to exercise its supplemental jurisdiction
over her state law claims and dismissed those claims without prejudice. Dahl
appeals.6
II. Standard of Review
We review de novo the district court’s grant of summary judgment, applying
the same standard as the district court. See Walker v. Prudential Prop. & Cas. Ins.
Co., 286 F.3d 1270, 1273 (11th Cir. 2002).
III. Discussion
Dahl argues that we should reverse the district court because: (1) the officers
are not entitled to qualified immunity on any of her constitutional claims against them;
and (2) the district court did not adequately explain its reasons for granting summary
judgment on her constitutional claims against the City. Because the facts do not
6
In addition to the officers and the City, Dahl also sued McCardle for malicious
prosecution and abuse of process under Alabama law. As with the state law claims against the
officers and the City, the district court dismissed these claims against McCardle without
prejudice.
10
demonstrate that Dahl suffered any constitutional deprivation, however, we find no
reversible error in the district court’s grant of summary judgment.
A. Qualified Immunity Analysis
In considering whether the officers are entitled to qualified immunity on Dahl’s
§ 1983 claims, we must first determine whether the facts, viewed in the light most
favorable to Dahl, establish a constitutional violation. See Hope v. Pelzer, — U.S. —,
122 S. Ct. 2508, 2513 (2002); Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,
2156 (2001). If no constitutional violation is established, then the officers prevail, and
“there is no necessity for further inquiries concerning qualified immunity.” Saucier,
533 U.S. at 201, 121 S. Ct. at 2156. On the other hand, if the facts establish a
constitutional violation, we must determine whether, at the time of the violation, the
right was clearly established, an inquiry that “must be undertaken in light of the
specific context of the case [and] not as a broad general proposition . . . .” Id.
B. Fourth Amendment: False Arrest
As stated, Dahl claims that her arrest was effected without probable cause in
violation of the Fourth Amendment. Probable cause existed if, at the moment the
arrest was made, “the facts and circumstances within [the officers’] knowledge and
of which they had reasonably trustworthy information were sufficient to warrant a
prudent man in believing” that Dahl had committed or was committing an offense.
11
See Hunter v. Bryant, 502 U.S. 224, 228, 112 S. Ct. 534, 537 (1991) (quoting Beck v.
Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225 (1964)). Dahl argues that the officers in this
case lacked probable cause for two reasons: first, they possessed no evidence relating
to any of the elements of § 13A-10-121; and second, they could not reasonably have
believed that Dahl was violating § 13A-10-121 in light of certain exculpatory
statements she made to McCardle. We disagree with both of these arguments.
To begin with, the officers clearly had evidence relating to some of the elements
of § 13A-10-121. That statute provides that: “A person commits the crime of bribing
a witness if he offers, confers or agrees to confer any thing of value upon a witness or
a person he believes will be called as a witness in any official proceeding with intent
to . . . [c]orruptly influence the testimony of that person . . . .” Ala. Code § 13A-10-
121(a)(1). The record demonstrates that, at the time of Dahl’s arrest, the officers had
received information from McCardle — an informant that had proved reliable on at
least one previous occasion (the stop and search of Dahl’s son) — that Dahl had
offered him $10,000 falsely to tell Hargett and the mayor that the police had set up her
son. Moreover, the officers’ subsequent investigation of Dahl uncovered evidence
tending to corroborate McCardle’s account. This evidence included Dahl’s own
statements that: McCardle was wrestling with his “pocketbook” instead of his
“conscience”; Dahl would “have to take care of it all during the weekend and worry
12
about getting ripped off”; McCardle need not worry about Dahl upholding her end of
the bargain but there were no banks open at that time; and Dahl just wanted to help
McCardle with his “situation.” Additionally, the police had evidence that, in their last
conversation before the scheduled meeting with the mayor, Dahl responded
affirmatively to McCardle’s statement that he would receive “attorneys fees” if Dahl
trusted him. On this record, the officers had evidence from which a prudent person
could believe that Dahl had offered McCardle a thing of value to misrepresent the
circumstances surrounding the stop and search of her son.
Slightly more problematic is Dahl’s contention that the officers lacked any
evidence that McCardle was a witness in an official proceeding. It was the lack of
evidence on this element that prompted the state trial court to grant Dahl’s motion for
judgment of acquittal. As Dahl correctly points out, McCardle told the officers only
that he was to misrepresent the facts in an informal meeting with the mayor. But the
officers reasonably could have concluded that, by prompting McCardle to
misrepresent the facts to the mayor, Dahl also was attempting to influence or discredit
any testimony that McCardle might give in any upcoming criminal proceeding against
her son, for whom an arrest warrant recently had been issued. That the officers had
no specific evidence as to this element, such as would convict Dahl at trial, did not
prevent them from having probable cause to make the arrest. See Adams v. Williams,
13
407 U.S. 143, 149, 92 S. Ct. 1921, 1924 (1972) (“Probable cause does not require the
same type of specific evidence of each element of the offense as would be needed to
support a conviction.”); Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813)
(“[T]he term ‘probable cause’ . . . means less than evidence which would justify
condemnation . . . .”); Kelly v. Serna, 87 F.3d 1235, 1241 (11th Cir. 1996) (“There is
a substantial difference between the quantum of proof necessary to constitute
sufficient evidence to support a conviction and that necessary to establish probable
cause.”); United States v. Everett, 719 F.2d 1119, 1120 (11th Cir. 1983) (affirming
finding of probable cause despite lack of evidence of criminal intent).
Similarly, the exculpatory statements referenced by Dahl — her statements that
McCardle should tell the truth and not lie to the mayor — did not prevent the officers
from having probable cause. While Dahl’s exculpatory statements tended to discredit
McCardle’s version of events, arresting officers, in deciding whether probable cause
exists, are not required to sift through conflicting evidence or resolve issues of
credibility, so long as the totality of the circumstances present a sufficient basis for
believing that an offense has been committed. Nor does probable cause require
certainty on the part of the police. “[S]ufficient probability, not certainty, is the
touchstone of reasonableness under the Fourth Amendment.” Craig v. Singletary, 127
F.3d 1030, 1042 (11th Cir. 1997) (en banc) (quoting Hill v. California, 401 U.S. 797,
14
804, 91 S. Ct. 1106, 1111 (1971)); see also Brinegar v. United States, 338 U.S. 160,
175, 69 S. Ct. 1302, 1310 (1949) (“In dealing with probable cause . . . as the very
name implies, we deal with probabilities.”); Ortega v. Christian, 85 F.3d 1521, 1525
(11th Cir. 1996) (“Probable cause does not require overwhelmingly convincing
evidence, but only ‘reasonably trustworthy information.’”).
Based on the totality of the circumstances, which included a specific statement
from a previously reliable informant that was corroborated by evidence gathered
through an independent investigation, the officers had sufficient probability to believe
that § 13A-10-121 had been violated. See McCray v. Illinois, 386 U.S. 300, 303-04,
87 S. Ct. 1056, 1058-59 (1967) (concluding that officers had probable cause for arrest
where personal observations corroborated tip from reliable informant); Draper v.
United States, 358 U.S. 307, 312-13, 79 S. Ct. 329, 333 (1959) (same); United States
v. Astling, 733 F.2d 1446, 1460 (11th Cir. 1984) (same); United States v. Espinosa-
Orlando, 704 F.2d 507, 511-12 (11th Cir. 1983) (same); cf. Eubanks v. Gerwens, 40
F.3d 1157, 1160 (11th Cir. 1994) (concluding that officer had arguable probable cause
sufficient to confer qualified immunity where arrest was based on tip from informant
who had proved reliable in the past). Thus, Dahl failed to demonstrate that she was
arrested in violation of the Fourth Amendment. Because there was no constitutional
15
violation, the officers were entitled to summary judgment, and we need go no further
in our qualified immunity analysis.
C. Fourth Amendment: Unlawful Search
In addition to her constitutional claim for false arrest, Dahl claims that the
officers violated her rights under the Fourth Amendment both by including false
statements in the search warrant affidavit and by failing to disclose in the affidavit that
Dahl had told McCardle not to lie. As with Dahl’s false arrest claim, however, we
conclude that the officers were entitled to summary judgment.
At the outset, we note that Dahl has not linked any of the officers, other than
Beeson, to the alleged violation underlying her unlawful search claim. The warrant
affidavit upon which this claim is based was submitted only by Beeson, and Dahl
points to no evidence that the other officers played any role in applying for the
warrant. On this basis alone, the other officers were entitled to summary judgment.
In any event, Dahl has failed to demonstrate that her Fourth Amendment rights
were violated in connection with the search warrant application. A search warrant
may be voided if the affidavit supporting the warrant contains deliberate falsity or
reckless disregard for the truth, see Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.
Ct. 2674, 2676 (1978), and this rule includes material omissions, see United States v.
Martin, 615 F.2d 318, 328-29 (5th Cir. 1980). Nonetheless, the warrant is valid if,
16
absent the misstatements or omissions, there remains sufficient content to support a
finding of probable cause. See Franks, 438 U.S. at 171-72, 98 S. Ct. at 2684.
In this case, Dahl has presented no evidence that Beeson deliberately or
recklessly misstated the evidence or omitted any material fact which would negate a
finding of probable cause. The alleged fabrications of which Dahl complains come
directly from McCardle’s written statement to the police and identify “the confidential
informant” as the source of the information. (R.2-38, Ex. 19 at 2.) Beeson accurately
portrayed the information the police obtained from McCardle, and there is nothing to
suggest that he knew this information to be inaccurate. Moreover, the omission of
which Dahl complains does not defeat the probable cause determination. As we have
explained, the totality of the circumstances provided a sufficient basis to believe that
Dahl had violated § 13A-10-121, her exculpatory statements to McCardle
notwithstanding, and the omitted facts would not have prevented a finding of probable
cause. See Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir. 1997).7 Because
there was no violation of Dahl’s constitutional rights, the district court correctly
granted summary judgment on her unlawful search claim.
7
We should not be understood to suggest that omissions of fact clearly critical to a
finding of probable cause cannot vitiate an affidavit in support of a warrant, where “it is proven
that the omissions were made intentionally or with a reckless disregard for the accuracy of the
affidavit.” Martin, 615 F.2d at 329. Here, the omitted facts are not clearly critical to the
probable cause determination, nor has Dahl shown them to be intentionally or recklessly made.
17
D. First Amendment: Retaliatory Arrest
Dahl also claims that she was arrested in retaliation for her constitutionally
protected speech against the police department’s recruitment and use of confidential
informants. Whatever the officers’ motivation, however, the existence of probable
cause to arrest Dahl defeats her First Amendment claim. See Redd v. City of
Enterprise, 140 F.3d 1378, 1383 (11th Cir. 1998); see also Keenan v. Tejeda, 290
F.3d 252, 260 (5th Cir. 2002); Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir.
2001); Smithson v. Aldridge, 235 F.3d 1058, 1063 (8th Cir. 2000). Therefore,
summary judgment was proper on this claim as well.
E. Constitutional Claim Against the City
Finally, Dahl claims that the City inadequately trained and supervised the
officers. Because Dahl has not demonstrated that she suffered a constitutional
deprivation, however, her constitutional claim against the City fails, and the district
court properly entered summary judgment on this claim.
IV. Conclusion
For the foregoing reasons, the district court properly granted summary
judgment to the officers and the City on Dahl’s constitutional claims.
AFFIRMED.
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