Michael Dowell v. Lincoln County, Missouri

United States Court of Appeals

For the Eighth Circuit

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No. 13-2317

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Michael Dowell

lllllllllllllllllllll Plaintiff - Appellant

v.

Lincoln County, Missouri; Christopher Bartlett; Joseph Eagan; Rodney Boyer;

Harry Dilworth; William Carson, all in their individual and official capacities

lllllllllllllllllllll Defendants - Appellees

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Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

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Submitted: June 10, 2014

Filed: August 8, 2014

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Before RILEY, Chief Judge, BYE and KELLY, Circuit Judges.

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BYE, Circuit Judge.

Michael Dowell filed this 42 U.S.C. § 1983 action against Lincoln County, the

county detective, and four police officers (collectively “Defendants”) for their actions

while investigating and prosecuting Dowell for the rape and murder of Stephanie

Hogland. The district court1 granted partial summary judgment for Defendants, and

Dowell dismissed the surviving claim to pursue this appeal. On appeal, Dowell argues

the district court erred in granting Defendants summary judgment. We affirm.

I

In 1991, officers of the Lincoln County Police Department found the partially

clothed body of Stephanie Hogland in a ditch. Her underwear and vagina contained

traces of semen, and bruises marked her body. During Hogland’s autopsy, Dr. Mary

Case found small lacerations on the genitalia, bruising on the arms and legs indicating

grip marks, and determined closed-head trauma as the cause of death. Based on the

autopsy findings, Dr. Case determined probable sexual assault and murder. No arrests

were made as a result of the initial investigation.

In 2006, Dowell submitted DNA to his probation officer. The sample matched

the DNA found on Hogland’s underwear. As a result, Lincoln County police

reopened the investigation into Hogland’s death. The reopened investigation was led

by Captain William Carson, Officers Rodney Boyer, Harry Dilworth, and Joseph

Eagan, and Detective Christopher Bartlett. The investigation began with Officers

Boyer, Dilworth, and Eagan driving an unmarked minivan to Dowell’s residence,

where Dowell agreed to answer questions at the police station and entered the van

with the officers.

Before driving to the station, however, the officers took Dowell to the ditch

where Hogland had been found in 1991. En route, the officers showed Dowell

pictures of Hogland and asked Dowell if he knew Hogland, which he denied. When

they arrived at the ditch, the officers exited the van but Dowell remained inside.

1

The Honorable Catherine D. Perry, Chief Judge, United States District Court

for the Eastern District of Missouri.

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Eventually, the officers drove Dowell to the police station. At no time did Dowell

request to be returned home.

The officers interrogated Dowell at the police station. Before they questioned

Dowell, Officer Boyer read Dowell his Miranda rights and provided water. The

beginning of the interrogation proceeded without issue, with Dowell appearing calm

and collected until the officers formally arrested him. After arresting Dowell, the

officers resumed questioning. A brief heated exchange occurred where Dowell and

Officer Dilworth raised their voices. After the exchange, Officer Dilworth left and

Dowell resumed his calm demeanor. The interrogation concluded without further

incident; Dowell maintained his innocence and continually denied having known

Hogland. Near the end of the interrogation, Dowell repeatedly requested an attorney

be appointed to him, but continued to engage the officers. Near the conclusion of the

interrogation, Officer Boyer commented aloud about Missouri’s death penalty law

before exiting the room. The officers did not threaten Dowell with physical violence

during the interrogation.

Following the interrogation, Detective Bartlett drafted a probable cause

statement for the rape and murder of Hogland. The next day, Detective Bartlett and

Officer Dilworth visited Dowell in his holding cell. Dowell’s attorney was not

present. Detective Bartlett read Dowell the charges and told Dowell Missouri planned

to seek a death sentence for Hogland’s murder. The officers did not ask Dowell any

questions and left after reading the charges.

Missouri initially charged Dowell with the murder and rape of Hogland.

Missouri law, however, required the rape charge be severed because Missouri sought

the death penalty. See Mo. Rev. Stat. § 565.004. Prior to trial, Dowell moved to

suppress the statements he made after invoking his right to counsel during the

interrogation, and the trial court granted the motion. The case proceeded to trial in

2008. Dr. Case was one of the witnesses who testified. During Dr. Case’s testimony,

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she conceded the lacerations on Hogland’s genitalia could have been caused by

forceful but consensual sex. The jury acquitted Dowell of murder, and the trial court

dismissed the rape charge without prejudice.

After Dowell’s acquittal, Missouri sought to prosecute Dowell for the rape of

Hogland. The prosecutor’s office asked Detective Bartlett to draft a new probable

cause statement charging Dowell with rape. Detective Bartlett drafted the second

probable cause statement by relying on the first probable cause statement, removing

reference to the murder trial because the prosecutor had advised it was unnecessary.

Detective Bartlett listed the lacerations on Hogland’s genitalia in his second probable

cause statement as supporting the finding of probable sexual assault.2 Before

submitting the statement, Detective Bartlett reviewed with the prosecutor the facts he

planned to include, and the prosecutor told him the statement was sufficient. Pursuant

to the second probable cause statement, Dowell was arrested and again charged with

the rape of Hogland.

Dowell moved to dismiss the rape charge with prejudice, arguing Missouri was

collaterally estopped from charging him for rape. The trial court granted the motion,

and Dowell was released. Dowell then filed this lawsuit alleging nine claims relating

to his arrest, interrogation, and prosecution, and to the hiring, training, and supervision

of the officers involved. Defendants argued they were entitled to qualified immunity

and moved for summary judgment on all nine of Dowell’s claims.

Reasoning there had been no violations of Dowell’s Fourth, Fifth, or Sixth

Amendment rights, the district court granted Defendants’ motion for summary

judgment on all but one claim, which Dowell voluntarily dismissed. In determining

2

Detective Bartlett had not attended the murder trial and was not aware Dr. Case

had opined the lacerations could have been the result of consensual sex.

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summary judgment, the district court relied heavily on Defendants’ assertion of a

qualified immunity defense. Dowell appeals the grant of summary judgment.

II

Dowell contends the district court erred in granting Defendants summary

judgment, arguing he introduced sufficient evidence to raise genuine questions of

material fact for each of his claims. Dowell argues (1) the officers compelled him to

provide self-incriminating testimony during his interrogation; (2) the officers violated

his right to counsel; and (3) he was prosecuted for rape without probable cause.

We review the district court’s grant of summary judgment de novo, applying

the same standard as the district court. Crawford v. Van Buren Cnty., Ark., 678 F.3d

666, 669 (8th Cir. 2012). Summary judgment is appropriate when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). We view “the evidence in the light most

favorable to the non-moving party and [give] that party the benefit of all reasonable

inferences.” Edwards v. Byrd, 750 F.3d 728, 731 (8th Cir. 2014).

A

We first consider Dowell’s claim the officers violated his Fifth Amendment

right against self-incrimination. Dowell argues the officers violated this right during

the van ride and during the interrogation by compelling him to lie to police about

having known Hogland in 1991. When deciding whether statements are voluntary,

we consider the totality of the circumstances. Sheets v. Butera, 389 F.3d 772, 778-79

(8th Cir. 2004). A criminal defendant has the burden of showing the officers’ conduct

went beyond standard police interrogation tactics to the point it overbore the

defendant’s will. United States v. Sanchez, 614 F.3d 876, 884 (8th Cir. 2010).

Involuntary statements are extracted through threats, violence, or promises. Simmons

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v. Bowersox, 235 F.3d 1124, 1132 (8th Cir. 2001). A police threat must be credible

to cause an involuntary statement. Sanchez, 614 F.3d at 884.

Dowell argues the van ride contributed to the coercive atmosphere of his

interrogation because the officers took him to a dark, isolated county road and failed

to read him the rights required by Miranda v. Arizona, 384 U.S. 436 (1966). Dowell,

however, voluntarily rode with the officers and did not request to be returned home.

During the van ride, the officers made no promises or threats to Dowell, and there is

no suggestion the officers physically coerced Dowell into saying he did not know

Hogland. Accordingly, there is no basis to conclude the statements Dowell made in

the van were anything but voluntary. See Simmons, 235 F.3d at 1132-33.

Dowell also asserts the overall atmosphere of the officers’ conduct throughout

the interrogation physically intimidated and compelled him to make more untruthful

statements about not having known Hogland. As part of considering the totality of the

circumstances of the interrogation, see Sheets, 389 F.3d at 778-79, we have had the

benefit of viewing a videotape of the interrogation which took place at the police

station. The videotape shows the officers informed Dowell of his Miranda rights at

the beginning of the interrogation. Dowell both signed a Miranda waiver form and

acknowledged his understanding of his rights. Dowell’s understanding of his Miranda

rights is a “particularly compelling fact” in our finding his statements were voluntary.

United States v. LeBrun, 363 F.3d 715, 726 (8th Cir. 2004) (internal quotation and

citation omitted). Dowell’s only allegation of a specific threat or violence is Officer

Boyer informing Dowell Missouri is a death penalty state. An officer, however, may

make a truthful statement regarding a possible punishment without it overbearing a

defendant’s will. Simmons, 235 F.3d at 1133.

Dowell contends the officers created an atmosphere of intimidation when (1)

Officer Boyer briefly stood over him and then brushed past Dowell, and (2) Dowell

had his back against the wall as Officer Dilworth yelled at him. However, an officer

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may stand in close proximity to a suspect without the closeness of the officer

intimidating a suspect. See id. at 1132. We find nothing to indicate Officer Boyer

momentarily standing over and then brushing past Dowell overbore Dowell’s will.

In addition, raised voices alone do not rise to the level of overbearing a defendant’s

will. See id. at 1133 (“Tactics such as deception and raised voices do not render a

confession involuntary unless the overall impact of the interrogation caused the

defendant’s will to be overborne.”). Based on the foregoing, we hold Dowell failed

to introduce sufficient evidence to raise a question of material fact as to whether the

officers’ conduct overbore Dowell’s will.3

B

Dowell next contends the district court erred by granting Defendants summary

judgment on his Sixth Amendment claim. Dowell alleges the officers violated his

right to counsel by reading Dowell his charges at the jail without counsel present in

an attempt to elicit a confession. The district court concluded Defendants were

entitled to qualified immunity. “Qualified immunity shields government officials

from liability and the burdens of litigation in a § 1983 action unless the official’s

conduct violates a clearly established constitutional or statutory right of which a

reasonable person would have known.” LaCross v. City of Duluth, 713 F.3d 1155,

1157 (8th Cir. 2013); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We apply a

two-part test to determine whether a defendant is entitled to qualified immunity: (1)

whether the plaintiff can “make out a violation of a constitutional or statutory right,”

and (2) “whether that right was clearly established at the time of the defendant’s

alleged misconduct.” LaCross, 713 F.3d at 1158.

3

Dowell’s failure to intercede claim depends on finding the officers compelled

Dowell’s statements. Because we conclude the statements were not compelled, we

affirm the district court’s grant of summary judgment to Defendants on that claim.

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In 2006, the time of the alleged violation, Massiah v. United States, 377 U.S.

201, 206 (1964), was controlling law. Massiah established a constitutional violation

of a defendant’s right to counsel occurred only when the improperly obtained evidence

was “used against [the defendant] at his trial.” United States v. Chahia, 544 F.3d 890,

899 (8th Cir. 2008) (citing Massiah, 377 U.S. at 206).4 As no statements made by

Dowell without counsel present were introduced at trial, Dowell failed to allege a

violation of the right to counsel. Accordingly, the district court did not err in granting

Defendants summary judgment on Dowell’s Sixth Amendment claim.

C

Dowell next contends the district court erred by granting Defendants summary

judgment on his Fourth Amendment claim. Dowell alleges Detective Bartlett violated

this right by filing a probable cause statement which did not indicate Dowell had been

acquitted of Hogland’s murder or that the coroner had opined the lacerations on

Hogland’s genitalia could have been produced by consensual sex. “It is clearly

established that a warrantless arrest, unsupported by probable cause, violates the

Fourth Amendment.” Small v. McCrystal, 708 F.3d 997, 1003 (8th Cir. 2013)

(internal quotation and citation omitted). To challenge probable cause, a plaintiff

must show (1) police deliberately or recklessly included a false statement, or omitted

a truthful statement from the affidavit; and (2) “the affidavit would not establish

probable cause if the allegedly false information is ignored or the omitted information

is supplemented.” United States v. Mashek, 606 F.3d 922, 928 (8th Cir. 2010)

(internal citation and quotation omitted). An officer is entitled to qualified immunity

if he had “merely arguable probable cause,” which is a mistaken but objectively

4

We note the law on this issue has changed since 2006. Kansas v. Ventris, 556

U.S. 586, 592 (2009), expanded Massiah and “conclude[d] that the Massiah right is

a right to be free of uncounseled interrogation, and is infringed at the time of the

interrogation” (emphasis added).

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reasonable belief the suspect committed a criminal offense. McCabe v. Parker, 608

F.3d 1068, 1078 (8th Cir. 2010).

It is undisputed Detective Bartlett’s second probable cause statement did not

contain references to Dowell’s acquittal or Dr. Case’s expanded trial testimony

indicating consensual sex could have caused the lacerations on Hogland’s genitalia.

We therefore determine whether Detective Bartlett’s probable cause statement would

still establish probable cause if the information had been included. “The

determination of probable cause is made after considering the totality of the

circumstances.” United States v. Proell, 485 F.3d 427, 430 (8th Cir. 2007).

Looking to the totality of the circumstances, Detective Bartlett’s second

probable cause statement would still have established probable cause if the omitted

facts had been included. The facts contained in the second probable cause statement

included (1) Hogland’s partially clothed body; (2) bruising on the arms and hands

indicating the assailant forcefully held Hogland; (3) numerous lacerations to the head

and face along with closed-head trauma as cause of death; and (4) semen found on

Hogland’s underwear matching Dowell’s DNA sample. We find these facts to

warrant reasonable grounds for believing Dowell had raped Hogland. See Baribeau

v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir. 2010) (describing probable cause

standard). Neither Dowell’s acquittal of the murder charge nor Dr. Case’s trial

testimony eliminated the possibility Dowell had raped Hogland. First, the only issue

at the murder trial for the jury to decide was whether Dowell had caused Hogland’s

death. Second, Dr. Case merely opined it was possible the lacerations resulted from

consensual sex.

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Therefore, we find Dowell failed to raise any genuine issues of material fact and

conclude summary judgment is proper on Dowell’s Fourth Amendment claim.5

III

Accordingly, we affirm the judgment of the district court.

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5

Dowell raises three additional claims arising from the alleged Fourth

Amendment violation: (1) Lincoln County failed to instruct, supervise, and discipline

its employees, (2) Dowell was falsely arrested and imprisoned, and (3) Detective

Bartlett maliciously initiated prosecution against Dowell. Each depend on a finding

there had been no probable cause to prosecute Dowell for the rape. Because we

conclude Detective Bartlett’s probable cause statement would provide probable cause

even if the omitted references had been included, the district court did not err by

granting summary judgment to Defendants on those claims.

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