                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 13-2317
                          ___________________________

                                    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
                                        ____________

                      Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                               Submitted: June 10, 2014
                                Filed: August 8, 2014
                                   ____________

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

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.

                                         -2-
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,

                                         -3-
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.

                                           -4-
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

                                          -5-
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

                                          -6-
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.

                                          -7-
       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).

                                           -8-
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.




                                         -9-
      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.
                     ______________________________




      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.

                                         -10-
