Freeman v. County of Bexar

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-50608

LILLIAN FREEMAN,

Plaintiff - Appellant,

VERSUS

COUNTY OF BEXAR; ET AL,

Defendants,

JOHN JENNINGS, Individually and in his official capacity;

GEORGE SAIDLER, Individually and in his official capacity,

Defendants - Appellees.

Appeal from the United States District Court

for the Western District of Texas

May 4, 2000

Before JONES, DUHÉ, and WIENER, Circuit Judges

DUHÉ, Circuit Judge

In this 42 U.S.C. § 1983 case, Appellant Lillian Freeman

challenges the district court's entry of summary judgment granting

Officer John Jennings and Detective George Saidler qualified

immunity. We affirm.

BACKGROUND

This is the second time we have entertained an appeal from the

district court's grant of summary judgment in this matter.1 In

Freeman I we reversed and remanded to the district court so that it

could consider the affidavit of Appellant Freeman's expert witness,

Ray Hildebrand. On remand, the district court did so and again

granted summary judgment to Detective Saidler and Officer Jennings

ruling that they were entitled to qualified immunity.

STANDARD OF REVIEW

We review a grant of summary judgment de novo, viewing the

facts and inferences in the light most favorable to the party

opposing the motion. See Hall v. Gillman, Inc., 81 F.3d 35, 36-37

(5th Cir. 1996). Summary judgment is appropriate if the record

discloses “that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c); accord Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).

In order to prevail in the instant case, Freeman must

demonstrate that a genuine issue of material fact exists as to

1

For an in depth recitation of the events underlying Appellant's

claim see Freeman v. County of Bexar, 142 F.3d 848 (5th Cir. 1998)

(“Freeman I”). Briefly, the San Antonio Police Department arrested

Freeman twice on suspicion that she had committed two separate bank

robberies. The state eventually charged Freeman in connection with

these two robberies. Later, during a third similar robbery, the

police apprehended another suspect, Carolyn Yvonne Butler. The

federal government indicted and convicted Butler for all three

robberies. The state ended its prosecution of Freeman several

weeks after Butler's conviction. Freeman sued a number of county

and municipal actors including Detective Saidler, the investigating

officer in the first robbery, and Officer Jennings, the

investigating officer in the second robbery, for deprivation of her

civil rights.

2

whether the Appellees knowingly provided false information to

secure the arrest warrants or gave false information in reckless

disregard of the truth. See Franks v. Delaware, 438 U.S. 154, 171

(1978). Since we must draw all disputed inferences in the

Appellant's favor, we must disregard any such properly contested

statements in the affidavits and then determine whether the warrant

would establish probable cause without the allegedly false

information. See id.2 Appellant must then demonstrate an issue of

material fact as to whether any reasonably competent officer

possessing the information that each officer had at the time he

swore his affidavit could have concluded that a warrant should

issue. See Malley v. Briggs, 475 U.S. 335, 341 (1986). We must

look to the totality of circumstances in making this decision. See

Illinois v. Gates, 462 U.S. 213, 238-39 (1983). Even if officers

of reasonable competence could disagree on this issue, the

Appellees are still entitled to qualified immunity. See Malley,

2

We find a bit puzzling the district court's citation to Hart v.

O'Brien, 127 F.3d 424 (5th Cir. 1997) abrogation on other grounds

recognized by Spivey v. Robertson, 197 F.3d 772, 775 (5th Cir.

1999) citing Kalina v. Fletcher, 522 U.S. 118 (1997), for the

proposition that “[b]ecause the Court must view the facts in the

light most favorable to plaintiff, it will not consider the

disputed facts in determining the qualified immunity question.”

Upon careful review of the opinion, however, it appears that the

district court meant no more than that if Freeman could create a

material issue of fact as to the truthfulness of any of the

statements in the affidavits, then those statements would be

disregarded when it examined the overall reasonableness of the

officers' respective probable cause determinations. While we agree

with the Appellant that the district court's reference to Hart is

prone to misinterpretation, we are confident that the district

court correctly applied the standard as laid out in Franks.

3

475 U.S. at 341.

DISCUSSION

I. Detective Saidler

Freeman contends that Saidler acted unreasonably in his

swearing of the probable cause affidavit recommending her first

arrest. She alleges that Saidler both included false information

in his affidavit and excluded exculpatory information from it.

Saidler based his affidavit upon: the sworn statements of

bank tellers Susan Rios and Joey King that the woman pictured in an

FBI surveillance picture shown to them was the one who had

committed the first robbery; Robert Marley's confidential

disclosure that he had worked with Freeman and recognized her from

a local broadcast of the FBI picture on a “crime stoppers” segment;

the affidavit of Christina Hansen, Freeman's former co-worker, in

which she stated that she “recognized the girl as Lillian Freeman”

and that Freeman had sunglasses “like the one[s] in the pictures;”

the affidavit of Matthew Huizar, Freeman's former co-worker, who

looked at a series of surveillance pictures and stated in his

affidavit that he “told [Saidler] it was Lillian Freeman;” and the

fact that the police seized from Freeman's house a sweatshirt,

pants, sunglasses and a wig similar to those pictured in the FBI

surveillance photo. On the whole, this information is sufficient

to support a reasonable officer's belief that probable cause

existed. Still, we must determine whether Freeman's allegations

create a material issue of fact as to the truthfulness of any of

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the information and/or whether Saidler excluded allegedly

exculpatory material that might call into question the

reasonableness of his probable cause determination.

A. Rios' and King's Statements

Freeman alleges that Saidler falsely stated that Rios and King

had positively identified her as the robber. This allegation is

wholly without merit. Saidler's affidavit reads simply that “the

black female in the photograph developed by the FBI was the

individual that robbed the San Antonio Credit Union at gunpoint on

6-4-91.” The record clearly indicates that both Rios and King

stated that the unnamed person in the picture looked like the

person that had robbed them. They did not indicate that the robber

was Freeman, and Saidler did not suggest that they did.

B. Marley's Confidential Identification

Freeman contends that under Aguilar v. Texas, 378 U.S. 108,

110-114 (1964) abrogated on other grounds by Gates, 462 U.S. at

238-39, Marley's confidential identification of her as the robber

lacked sufficient supporting facts to establish probable cause.

Freeman's reliance on Aguilar is misplaced. Unlike Saidler's

affidavit, the affidavit in question in Aguilar contained only

unsupported allegations of a confidential informant. See id. at

109, n.1. Saidler listed Marley's testimony as but one factor in

his probable cause determination. Moreover, Marley informed the

police that he had worked with Freeman and thus provided some

indication that his information was credible. Accordingly, we

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cannot read Aguilar to suggest that Saidler's partial reliance upon

Marley's testimony was unreasonable.

C. Hansen and Huizar Affidavits

Freeman insists that Saidler coerced Hansen and Huizar into

identifying her and misstated the strength of their testimony in

his affidavit. Freeman's alleged evidence of coercion consists of

each witnesses' subsequent statements that Saidler appealed to his

or her civic duty to testify and Hansen's references to Saidler's

size and physical build. While evidence of reliance upon coerced

testimony may be enough to defeat a summary judgment grant of

immunity, see Geter v. Fortenberry, 882 F.2d 167, 170-71 (5th Cir.

1989), Freeman's allegations do not permit any inference of

coercion. Both Hansen and Huizar admitted to being reluctant to

testify in this matter. There is no evidence that Saidler did

anything more than request that each reluctant witness testify.

Appealing to an uncooperative witness' civic duty to testify is

fundamentally different from coercing a witness to testify to a

certain fact. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 488

(1971) (“But it is no part of the policy underlying the Fourth and

Fourteenth Amendments to discourage citizens from aiding to the

utmost of their ability in the apprehension of criminals.”).

Neither Hansen's nor Huizar's testimony suggests that Saidler

appealed to their civic duty specifically to implicate Freeman.

Moreover, the mere fact that Detective Saidler is a large man does

not permit a reasonable inference of coercion.

6

As there is no credible evidence of coercion, Saidler's

reliance upon the exact wording of Hansen's and Huizar's sworn

statements is undoubtedly reasonable. He simply could not have

predicted their later recanting.3 Because we look to the totality

of circumstances as they existed at the time that the officer

determines whether probable cause exists, Hansen's and Huizar's

subsequent disavowals do not create an issue of material fact as to

the truthfulness of Saidler's affidavit.

D. Seized Items

Freeman insists that the items seized from her house are so

common that they cannot form the basis of probable cause. Again,

while the seized items alone may not provide probable cause, when

taken as a whole the information included in Saidler's affidavit is

sufficient to permit a reasonable officer to infer that probable

cause existed for Freeman's arrest.

E. Omitted Evidence

Freeman alleges that Saidler was aware of exculpatory

information that he did not include in his affidavit. Freeman

3

Appellant correctly notes that the district court ventured

beyond the proper scope of review on summary judgment when it

stated that it “does not find the testimony of Huizar and Hansen

credible.”. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). Still, whether or not the district court found Huizar and

Hansen credible is irrelevant for determining the reasonableness of

Saidler's actions at the time he swore his affidavit. Saidler

could not have predicted that the witnesses would later recant

their testimony and did not have any information suggesting that

they were not telling the truth in their sworn statements.

7

cites first to Saidler's alleged awareness of the United States

Attorney's and the FBI's respective determinations that they did

not have probable cause to arrest her. This evidence demonstrates

little more than that reasonable officers disagreed. It does

nothing to show that Saidler acted unreasonably. Next, Freeman

notes that the results of a latent fingerprint analysis did not

implicate her. As the district court reasoned, this evidence is

inconclusive at best. It neither implicated, nor exonerated

Freeman and we cannot read it to do either.

Freeman's final assertions of error concern Saidler's failure

to investigate another anonymous tip given to the crime stoppers

program and the failure of any police officer to identify Freeman

as the robber by comparing the surveillance photos with other

photos of Freeman. We agree with the district court that there is

no evidence to suggest that either of these allegations calls into

question the reasonableness of Saidler's actions.

II. Officer Jennings

Freeman insists that Jennings acted unreasonably in relying

upon Saidler's investigation of the first robbery in determining

probable cause for her arrest in the second robbery. Because there

is no genuine issue of material fact concerning the reasonableness

of Saidler's investigation, it follows that Jennings was reasonable

in his reliance upon the information gleaned from this

investigation. See United States v. Walker, 960 F.2d 409, 416 (5th

Cir. 1992) (holding that determination of probable cause may rest

8

upon the collective knowledge of the police force if there is

communication between the officers). Freeman demonstrates no issue

of material fact as to the truthfulness of any of the information

relied upon by Jennings4; and, accordingly, there is no question as

to the reasonableness of his actions.

CONCLUSION

For the above stated reasons, we AFFIRM the trial court's

grant of summary judgment to Detective Saidler and Officer

Jennings.

4

Once again, Freeman misstates the officers' reliance upon the

King and Rios testimony. She insists that Jennings's claimed in his

affidavit that Saidler informed him that Rios and King had

identified Freeman as the robber. Just like Saidler's affidavit,

Jennings's states merely that King and Rios recognized the unnamed

woman in the FBI photo as the woman who had robbed them. Neither

officer suggested that King and Rios indicated that the pictured

woman was Freeman.

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