                                                      [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           MARCH 11, 2008
                              No. 07-14795
                                                          THOMAS K. KAHN
                          Non-Argument Calendar
                                                              CLERK
                        ________________________

                    D. C. Docket No. 06-00051-CV-WLS-1

DAVID J. PETERSON, JR.,

                                                   Plaintiff-Appellee,
                                   versus

KELLY CRAWFORD, individually and in Their
Official Capacity as Campus Police Patrolman,
Supervisor of Campus Police, and Director of
Security of Dougherty County School District
Campus Police Department,
SAM OLIVER, individually and in Their
Official Capacity as Campus Police Patrolman,
Supervisor of Campus Police, and Director of
Security of Dougherty County School District
Campus Police Department,
WILLIE GRIFFIN, individually and in Their
Official Capacity as Campus Police Patrolman,
Supervisor of Campus Police, and Director of
Security of Dougherty County School District
Campus Police Department,
SALLY WHATLEY, as Superintendent of
Dougherty County School District,

                                                          Defendants,
TYWON HEATH, individually and in his
Official Capacity as a Member of the City of
Albany, Georgia Police Department, respectively,
                                                              Defendant-Appellant.

                             ________________________

                     Appeal from the United States District Court
                         for the Middle District of Georgia
                          _________________________

                                   (March 11, 2008)

Before MARCUS, WILSON and HILL, Circuit Judges.

PER CURIAM:

      In November of 2003, a female high school student reported to Officer

Tywon Heath, a police officer for the City of Albany, Georgia, assigned as a

school resource officer, that a black male in a maroon or red car tried to kidnap her.

The student described her assailant as being in his thirties, six feet tall, heavily

built, with short hair and a mustache. Kelly Crawford, a Dougherty County School

System Police Officer, learned about the incident and offered to drive the student

to school for a period of time. In December of 2003, Crawford and the student

were driving to the school when a small red car passed by. The student told

Crawford that she believed the driver might be her assailant. Crawford stopped the

vehicle, driven by David J. Peterson, Jr. When Peterson exited the vehicle, the

student identified him as her attacker. Crawford called Heath to the scene, who

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arrived, arrested Peterson, handcuffed him and took him to the police station.

Subsequently, Peterson was indicted by a grand jury, tried, and acquitted.

       Peterson filed this action against Kelly Crawford and Heath alleging

violations of his federal constitutional rights as well as the state law claims for

false arrest and false imprisonment.1 Peterson alleged that Crawford illegally

stopped and detained him, in violation of his Fourth Amendment rights, because

Crawford did not have authority to stop and detain or arrest a private citizen over a

mile away from the school campus. Peterson also alleged that Heath assisted in the

allegedly illegal detention and arrest. The defendants moved for summary

judgment.

       The district court granted in part and denied in part the defendants’ motions

for summary judgment. The district court denied Crawford’s claim of qualified

immunity because Crawford failed to make the required showing that he was

acting within his discretionary authority when he arrested Peterson. The court also

denied Heath’s claim for qualified immunity, concluding that because Crawford

was not entitled to immunity on the federal claims, neither was Heath.2 Next, the

       1
        Others were named in the action as well. All defendants initially appealed but later
dismissed their appeals, with the exception of Heath.
       2
         The district court granted Heath’s motion for summary judgment on the federal claims
in his official capacity, holding that Peterson did not show that defendants had promulgated any
policies, customs, or procedures that caused a constitutional violation. See Monnell v. Dept. of
Social Services, 436 U.S. 658 (1978). Plaintiff does not appeal this judgment.

                                                3
district court denied Heath’s motion for summary judgment on the state law claims

of false arrest and false imprisonment on the grounds of official immunity, holding

that because Crawford had no authority to arrest Peterson (and, therefore, neither

did Heath), there was no probable cause for the arrest, thereby permitting a jury to

infer the malice required in Georgia to negate official immunity. Heath raises both

of these issues on appeal. The district court did not rule on Heath’s alternative

argument that he is protected by sovereign immunity against any state law claim in

his official capacity, but Heath raises this issue, too, on appeal. We review the

grant of summary judgment de novo. Mitchell v. Forsyth, 472 U.S. 511 (1985).

1.     Qualified Immunity from the Federal Claims

       The district court held that Heath was not entitled to qualified immunity

because Crawford was not.3 This was error. First, the district court incorrectly

stated that Heath “did not address or make any other arguments for summary

judgment on the qualified immunity defense issue other than to argue that

Crawford’s stop and detention and all subsequent acts are shielded by Crawford’s

entitlement to qualified immunity.” This is inaccurate.

       A review of Heath’s Memorandum of Law in support of his summary

judgment motion plainly shows that Heath argued that he was entitled to summary


       3
        The question of Crawford’s immunity was not appealed and is not before us. We
express no opinion on his entitlement to it.

                                             4
judgment independently of whether Crawford was entitled to such immunity.

Heath’s memorandum states that he is protected by qualified immunity “because

his arrest of Plaintiff was constitutionally valid.” [R.20, p. 4]. His memorandum

further outlines the three requisite prongs of qualified immunity: actions pursuant

to the public official’s discretionary authority; resulting in either no constitutional

violation; or a violation that was either not clearly established or not reasonably

known to the actor at the time of his actions, citing Gray ex rel. Alexander v.

Bostic, 458 F.3d 1295, 1303 (11 th Cir. 2006).

      With respect to these prongs, Heath pointed out in his memorandum of law

that Peterson conceded in his pleadings that Heath was acting pursuant to his

discretionary authority when he arrested Peterson, citing Plaintiff’s Response to

Heath’s Motion for Summary Judgment [R. 25, at 6]. Furthermore, Heath argued

he committed no constitutional violation because he did, in fact, have probable

cause to arrest Peterson based upon the victim’s identification of Peterson as her

assailant. Finally, he points out that a Dougherty County grand jury subsequently

indicted Peterson on the same charge for which Heath arrested him – criminal

attempt to commit kidnaping, and that over 100 years ago the Supreme Court held

that such indictment, found by a proper grand jury, should be accepted everywhere

through the United States as at least prima facie evidence of the existence of



                                            5
probable cause, citing Beavers v. Henkel, 194 U.S. 73, 85 (1904).

       These arguments are sufficient to raise the issue of Heath’s entitlement to

qualified immunity irrespective of any entitlement Crawford may have had to the

same defense. Heath’s entitlement to qualified immunity is an independent

question from that of Crawford’s, and it is to this issue we turn now.

       The district court held that because “the initial stop and detention [by

Crawford] was without any official authority . . . the arrest was without probable

cause.” We disagree. First of all, we do not agree that the existence of probable

cause is negated by a lack of authority to arrest. These are separate and unrelated

questions. Probable cause to believe a crime has been committed may exist even if

the authority to arrest the perpetrator does not. Therefore, the existence of

probable cause must be addressed separately from the issue of anyone’s authority

to arrest Peterson.

       Furthermore, even if Crawford did not have the authority to arrest Peterson,

it is conceded that Heath did. Once he arrived upon the scene, the question of

whether there was probable cause to arrest Peterson arose anew.4

       4
         Peterson argues that Heath is not entitled to immunity because he lost his ability to arrest
Peterson as the result of Crawford’s allegedly illegal stop. The district court appears to have
concurred. We disagree. This appears to be a misapplication of the “fruits of the poisonous
tree” doctrine. First, the doctrine applies only to bar the use in a criminal proceeding of evidence
illegally seized. We can find no case, and none is cited to us, for the proposition that this
doctrine of criminal law bars Heath from exercising his undisputed authority to arrest Peterson if
he had probable cause because Crawford misunderstood his authority. Furthermore, even if such

                                                  6
       Probable cause “to arrest exists where the facts and circumstances within the

collective knowledge of the law enforcement officials, of which they had

reasonably trustworthy information, are sufficient to cause a person of reasonable

caution to believe that an offense has been or is being committed.” Madiwale v.

Savaiko, 117 F.3d 1321, 1324 (11 th Cir. 1997) (internal quotation omitted). We

conclude that Heath had such probable cause to arrest Peterson. On the day of the

attempted kidnaping, the victim described the perpetrator to Heath. On the day of

the arrest, Heath received information from Crawford and the victim that she had

identified Peterson and his car. Heath testified that the previous identification

“pretty much fit” the subsequent identification of Peterson. After the stop, the

victim positively identified Peterson as her assailant. We conclude that Heath

certainly had probable cause to arrest Peterson.5

       In the presence of probable cause, there is no constitutional violation in the

arrest of Peterson. Accordingly, the district court’s conclusion that Heath was not



a case existed, it would have no application in the context of Heath’s claim to qualified
immunity from civil suit. In this context, we are concerned only with whether Heath reasonably
believed that he had authority to arrest Peterson. Heath was not required to correctly resolve the
issue of Crawford’s authority – substantially disputed in the record – in order to reasonably
conclude that he had such authority, independent of Crawford’s.
       5
         Even if we were to assume that actual probable cause did not exist to arrest Peterson, it
is undeniable that Heath had arguable suspicion to arrest Peterson. See Moore v. Gwinnett Co.,
967 F.2d 1495, 1497-98 (11th Cir. 1992) (“This is equivalent to asking whether a “reasonable
officer[] in the same circumstances and possessing the same knowledge as the Defendant[] could
have believed that probable cause existed . . . . ”).

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entitled to qualified immunity was error and must be reversed.

2.     The State Law Claims: Official Immunity and Sovereign Immunity

       Heath is entitled to official immunity for performance of his official

functions – such as arrest– unless he acted with actual malice or intent to cause

injury. Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476, 483 (1994). The

district court concluded that no official immunity could attach to Heath’s actions

because Peterson’s arrest was without probable cause, thereby permitting a jury to

infer malice. Because we conclude that there was probable cause to arrest

Peterson, we also conclude that he is entitled to official immunity with respect to

the state law claims. Therefore, the denial of summary judgment as to official

immunity is due to be reversed.

       Finally, the district court did not discuss whether the suit against Heath in

his official capacity is barred by sovereign immunity. Because we hold that Heath

is entitled to official immunity on the state law claims, we need not discuss this

issue either.

       Accordingly, the judgments of the district court as to Heath’s entitlement to

qualified immunity on the federal claims and official immunity on the state claims

against him are hereby

       REVERSED.



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