                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                        November 29, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
DANNY DEWAYNE HOPPER,

      Plaintiff - Appellant,

v.                                                          No. 16-5006
                                                (D.C. No. 4:14-CV-00229-JED-FHM)
TODD FENTON; CITY OF                                        (N.D. Okla.)
CLEVELAND, OKLAHOMA,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, GORSUCH, and MATHESON, Circuit Judges.
                  _________________________________

      The mothers of two young girls, L.M. (age eight) and K.G. (age twelve),

reported to police that Danny Dewayne Hopper had sexually assaulted their

daughters. Officer Todd Fenton interviewed the mothers and observed separate

forensic interviews of L.M. and K.G. Both girls maintained that Mr. Hopper had

raped K.G. in his bedroom, but their accounts differed on several other points.

Officer Fenton drafted a probable cause affidavit to obtain a search warrant for Mr.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Hopper’s home. Following the search, he arrested Mr. Hopper. Because Officer

Fenton had not obtained an arrest warrant, the next day he drafted a second probable

cause affidavit to support the arrest. Mr. Hopper was charged with first degree rape

and lewd or indecent proposals or acts to a child under the age of sixteen. At the

preliminary hearing, K.G. initially gave conflicting testimony about what happened at

Mr. Hopper’s house and ultimately admitted that she had lied about being in his

bedroom. The prosecution then dismissed the charges without prejudice. By that

point, Mr. Hopper had already spent six months in jail.

       After the criminal case against him ended, Mr. Hopper sued the City of

Cleveland, Oklahoma, and Officer Fenton under 42 U.S.C. § 1983. He alleged that

Officer Fenton had violated his constitutional rights by unlawfully omitting from the

affidavits information that would have vitiated probable cause. The district court

granted summary judgment to both defendants because no constitutional violation

had occurred. It held that probable cause would have existed even taking into

account the facts Mr. Hopper says had to be included in the affidavits. We agree

with the district court’s analysis.

       Probable cause does not require proof beyond a reasonable doubt or even a

preponderance of the evidence. “Instead, the relevant question is whether a

substantial probability existed that the suspect committed the crime, requiring

something more than a bare suspicion.” Kerns v. Bader, 663 F.3d 1173, 1188 (10th

Cir. 2011) (internal quotation marks and citations omitted). Accordingly, we held in

Easton that discrepancies in the statements of two young boys regarding an alleged

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sexual assault did not vitiate probable cause: the inconsistencies did “nothing to

undermine the solid core of the children’s statements regarding the . . . assault.”

Easton v. City of Boulder, 776 F.2d 1441, 1450 (10th Cir. 1985).

        This case presents the same scenario as Easton: even considering all of the

facts Mr. Hopper emphasizes, the core of the girls’ allegations would have sufficed to

show a substantial probability that the crime had occurred. As the district court

found, L.M.’s and K.G.’s statements in their forensic interviews were largely

consistent regarding their principal claim that Mr. Hopper had sexually assaulted

K.G.:

        Both alleged that Hopper and KG were nude in Hopper’s bedroom, on the
        bed, with Hopper on top of KG. Both reported that he kissed KG down
        from her mouth and described conduct consistent with Hopper performing
        oral sex on KG. Both described LM being in the bathroom and/or hallway
        at some point in time, and both indicated that LM watched Hopper have sex
        with KG on the bed.
        Mr. Hopper doesn’t contend that the affidavits failed to summarize this portion

of the girls’ accounts accurately. Neither does he argue that the evidence described

above fails to establish probable cause. Instead, he says certain facts omitted from

the affidavits would have undermined the girls’ credibility and thus vitiated probable

cause, but like the district court before us we don’t see how.

        First, Mr. Hopper points out that L.M.’s parents initially disbelieved her

account because she had lied in the past. But Officer Fenton wasn’t obligated to

ignore L.M.’s statements just because she had previously lied in another context.

After all, “[a] witness may be inaccurate, contradictory and even untruthful in some


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respects and yet be entirely credible in the essentials of [her] testimony.” Id. at 1450.

As the district court observed, someone who has lied before can still be raped or

witness a rape. So it is that modifying the affidavits to include the mother’s initial

disbelief of her daughter wouldn’t have negated probable cause. And that is

particularly the case when the affidavit would also have reflected the mother’s

ultimate decision to inform the police.

      Second, Mr. Hopper says the affidavits should have disclosed that K.G. and

L.M. initially leveled, but later recanted, the claim that he had also raped L.M.

Under our precedent, however, probable cause survives this sort of contradictory

statement regarding incidents separate from the alleged crime. In Easton, the alleged

victim gave conflicting statements about the number of times he was assaulted, where

the assaults occurred, and whether he had ever been in Mr. Easton’s apartment. Id. at

1449. We nonetheless found that the core accusation remained intact because the two

boys had consistently described an assault in the apartment complex’s laundry room.

Id. at 1450-51. For the same reason, the recanted allegation of the rape of L.M.

would not have vitiated probable cause with respect to the rape of K.G.

      Finally, Mr. Hopper highlights certain points on which the girls’ accounts

diverged. These include points both significant and minor. The most important

discrepancies concern whether Mr. Hopper had shown the girls a pornographic

movie, whether he had threatened them with a bloody knife, and whether he had

touched L.M.’s breasts. There are more, but we think it sufficient to note that none

bears on the central question whether he had sexually assaulted K.G. On that

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fundamental issue, the girls’ statements were consistent. Accordingly, these

discrepancies do not nullify probable cause.

      We do not minimize the fact that Mr. Hopper has suffered severely due to the

accusations against him. But the fact also remains that, as the district court

recognized, the Supreme Court has instructed us to extend qualified immunity to

officers seeking to do their jobs unless they are “plainly incompetent or . . .

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

      The judgment of the district court is affirmed.


                                             ENTERED FOR THE COURT


                                             Neil M. Gorsuch
                                             Circuit Judge




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