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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14001
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-01440-WSD
RAY HUNTER,
Plaintiff-Appellant,
versus
D. G. SCHOEPPNER,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(March 19, 2014)
Before HULL, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
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Ray Hunter appeals the summary judgment in favor of Detective D.G.
Schoeppner and against Hunter’s complaint of malicious prosecution.
42 U.S.C.
§ 1983. The district court ruled that Schoeppner had probable cause to arrest
Hunter, which barred his complaint of malicious prosecution. We affirm.
Schoeppner, a detective of the DeKalb County Police Department,
investigated the robberies of local branches of Emory Federal Credit Union and
BB&T Bank. The robberies were committed by black men of approximately the
same height, weight, and age. On both occasions, a robber handed a teller a note
that had been written on a Bank of America check, which warned of explosives
and demanded $35,000, and the robber showed the teller a device with a light. The
robber left the check at the bank and, although identifying information had been
blotted out, Schoeppner was able to see that the account holder was “DBA
Mattress & Furniture City, Ray Hunter, Sole Prop 404-288-5020, 1945 Candler
Rd.” During his investigation, Schoeppner learned that two robberies had been
committed in the City of Atlanta that were similar to those in DeKalb County; the
suspect was approximately the same size and age; and a check left at one of the
robberies in Atlanta was issued for Hunter’s business account. Schoeppner also
learned that Hunter’s business was no longer in existence. Schoeppner compared a
photograph of Hunter to surveillance videos obtained from Emory and BB&T and,
although the videotapes were not of sufficient quality to make a positive
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identification, Schoeppner determined that the suspect in both videos appeared to
be the same person and resembled Hunter.
Schoeppner created a photographic array containing Hunter’s photograph
and showed the array to three employees of BB&T and one employee of Emory.
One employee of BB&T and the employee of Emory “tentatively” identified
Hunter as the robber; the second employee of BB&T did not select anyone from
the array; and the teller who was robbed at BB&T “tentatively” identified someone
other than Hunter. When a witness was not one hundred percent confident in his
or her identification, Schoeppner treated the identification as “tentative.”
Schoeppner obtained warrants to arrest Hunter. Schoeppner alleged in his
affidavits that Hunter had stolen money from tellers at the credit union and the
bank using an explosive device. A magistrate judge issued the arrest warrants
based on the affidavits “and other sworn or affirmed testimony establishing
probable cause for [Hunter’s] arrest.” Schoeppner did not execute the warrants.
Two months later, Schoeppner learned that Charles Hamlett had been
arrested for the two robberies in the City of Atlanta. Officers arrested Hamlett
based on an identification made by a person who saw footage from a surveillance
video replayed on television. Officers searched Hamlett’s car and discovered a
check stub matching the check used in one of the robberies in Atlanta. When
questioned, Hamlett did not confess, but he stated that he knew and had worked for
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Hunter. Schoeppner obtained Hamlett’s photograph and determined that he looked
similar to the robber and could not be eliminated as a suspect.
Schoeppner created a second photographic array containing Hamlett’s
photograph. Schoeppner showed the second array to the teller who had been
robbed at Emory, and the teller “tentatively” identified someone other than
Hamlett. Schoeppner next showed the teller the array containing Hunter’s
photograph, and the teller positively identified Hunter as the robber. Later,
Schoeppner showed the second array to the three employees who had viewed the
first array. The employee of Emory “tentatively” identified Hamlett as the robber,
and the two employees of BB&T “tentatively” identified someone other than
Hamlett.
Schoeppner conferred with a sergeant in his department and they decided to
arrest Hunter. The sergeant and Schoeppner thought the evidence was more
compelling than when Schoeppner obtained the arrest warrants because of the two
“tentative” identifications of Hunter from employees of Emory and BB&T and the
positive identification made by the teller at Emory. Hunter was arrested and
charged for the robberies of Emory and BB&T, but later those charges were
dismissed.
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II. STANDARD OF REVIEW
We review de novo a summary judgment and view the evidence in the light
most favorable to the nonmoving party. Carter v. City of Melbourne, Fla.,
731
F.3d 1161, 1166 (11th Cir. 2013). Summary judgment should be entered when
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a).
III. DISCUSSION
Hunter challenges the summary judgment in favor of Schoeppner on two
grounds. First, Hunter argues that Schoeppner lacked probable cause to obtain the
arrest warrants. Second, Hunter argues that Schoeppner lacked probable cause
after officers in Atlanta arrested Hamlett.
The district court did not err by entering summary judgment in favor of
Schoeppner. Schoeppner had probable cause to obtain warrants for Hunter’s
arrest, which barred Hunter’s complaint for malicious prosecution. See Grider v.
City of Auburn, Ala.,
618 F.3d 1240, 1256 (11th Cir. 2010). The demand note left
at one of the robberies was written on a check issued to Hunter’s business; Hunter
resembled the robber depicted in the surveillance videotapes; and witnesses at
Emory and BB&T identified Hunter, albeit “tentatively,” as robbing those
institutions. Hunter argues that the magistrate judge who issued the arrest warrants
lacked probable cause because Schoeppner’s affidavit consisted of conclusory
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assertions of Hunter’s guilt, but the “other sworn or affirmed testimony” presented
to the magistrate judge established probable cause to issue the warrants. See
United States v. Hill,
500 F.2d 315, 320–21 (5th Cir. 1974) (“[A]n affiant’s oral
testimony, extrinsic to the written affidavit, which is sworn before the issuing
magistrate [judge], [can be used] in determining whether the warrant was founded
on probable cause.”). Schoeppner also relied on reasonably trustworthy
information to execute the arrest warrants. “Probable cause does not require
overwhelmingly convincing evidence, but only reasonably trustworthy
information, and must be judged not with clinical detachment but with a common
sense view to the realities of normal life.” Marx v. Gumbinner,
905 F.2d 1503,
1506 (11th Cir. 1990) (internal quotation marks and citations omitted).
Hunter argues that Schoeppner ignored evidence suggesting that Hamlett
committed the robberies, but we disagree. After Hamlett’s arrest, Schoeppner had
witnesses view additional photographic arrays containing Hamlett and Hunter, and
the teller robbed at Emory positively identified Hunter as the robber. Hunter
argues that similarities in the robberies in Atlanta and DeKalb County and
evidence found in Hamlett’s possession suggested that he robbed all the banks, but
Schoeppner reasonably concluded based on the “facts and circumstances within
[his] knowledge,”
id. at 1506, and in the absence of any evidence tying Hamlett
directly to the robberies in DeKalb County, that Hunter committed those robberies.
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IV. CONCLUSION
We AFFIRM the summary judgment in favor of Schoeppner.
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