Case: 13-14001   Date Filed: 03/19/2014   Page: 1 of 7


                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14001
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:12-cv-01440-WSD



RAY HUNTER,

                                                            Plaintiff-Appellant,

                                    versus

D. G. SCHOEPPNER,

                                                          Defendant-Appellee.



                         ____________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                         _____________________

                             (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., 

, 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., 

, 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, 

, 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, 

,

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,” 

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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