UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ LARRY DELBERT PINNEY, JR., Plaintiff - Appellant,

v. THE CITY OF TULSA OKLAHOMA, Defendant - Appellee. No. 16-5171 (D.C. No. 4:15-CV -00281-GKF-FHM) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , McKAY , and MATHESON , Circuit Judges.

________________ _________________ Mr. Larry Delbert Pinney, Jr ., was arrested fo r indecent exposure, a charge that was later dismissed at his preliminary heari ng. Afterwards, Mr. Pinney sued the City of Tulsa in state court under 42 U.S.C. § 1983, alleging cons titutional violations stemming from what he clai med was an unlawful arrest. 1 Upon removal to federal court, the district court gr anted summary judgment to the City. We now affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Mr. Pinney also named the arresting o fficer and several ot her defendants, all of whom he voluntarily dismissed. This appeal concerns only the City of Tulsa. FILED United States Court of Appeals Tenth Circuit 

### November 24, 2017
Elisabeth A. Shumaker Clerk of Court2 I The following facts are undisputed: Offi cer Wyatt Poth of the Tulsa Police Department responded to a call for indecent exposure at 2711 E. 88th Street, Apt. 569 in Tulsa. When he arrived on scene, Officer Poth encountered three young girls— two thirteen-year old twins and their eleven-y ear old friend. The eleven-year old girl reported that she was sitti ng on a wall near her apartment building when one of the twins noticed a man inside the apartments was staring at th em. She told Officer Poth the window blinds were open and the man inside was sitting in a chair wearing a yellow robe. The girl told O fficer Poth that one of the tw ins yelled at the man to stop staring at them. She said the man responded by opening hi s robe and “flashing” them by exposing his erect penis, which had a ring around it. Aplt. App. at 11. Officer Poth also spoke with one of the twins, who stated she was sitting on the wall with her friend when they noticed a man inside one of the apartments was looking at them. She said the man was sitt ing in a chair by the window, in front of a computer, wearing a yellow robe. She yelled at the man to stop st aring at them and said he smiled, opened his r obe, and exposed his erect peni s, which had a piercing. She described the piercing as black with “shiny silver balls on both ends.” Id. at 7. Officer Poth then knocked on Mr. Pinney’ s door to get his version of events. Mr. Pinney answered the door wearing a ye llow robe with nothing on underneath. Officer Poth entered Mr. Pinney’s apartment and observed a computer in front of the window and a chair approximately two fe et from the window. Mr. Pinney told Officer Poth that his wife was out getting fo od and the blinds had been closed, so the3 girls must have looked in between the b linds. Mr. Pinney conf irmed that he was wearing a penis ring. At th at point, Officer Poth exite d the apartment, notified a detective that he was arresti ng Mr. Pinney, and then reente red the apartment to arrest Mr. Pinney for indecent exposure. Th e charge was later dismissed. After the criminal case was dismissed, Mr. Pinney brought th is action in state court, alleging, among other things, unlawfu l arrest in violation of his Fourth Amendment rights. Once in federal court, the City moved for summary judgment, arguing that there was no constitutional viola tion because the arrest was supported by probable cause. The district court agreed, holding that Officer Poth reasonably concluded, based on his inves tigation, that a crime had been committed. The court explained that the girls’ st atements corroborated one anot her, the girls described in detail the alleged wrongdoing, and Officer Poth independently corroborated their stories by interviewing Mr. Pinney and confir ming the layout of his apartment. The court therefore granted summary judgment to the City, and this appeal followed.
II “We review the grant of summary judgment de novo.” Harte v. Bd. of Cty.
Comm’rs , 864 F.3d 1154, 1161 (10th Cir. 2017), petition for cert. filed , (U.S. Nov. 13, 2017) (No. 17-704). “Summary judgme nt is appropriate only if, viewing the evidence in the light most fa vorable to the non-moving pa rty, ‘there is no genuine issue as to any materi al fact and the movant is entit led to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). Although we afford the non-moving party “all reasonable inferences from the r ecord,” summary judg ment still may be4 appropriate if the non-movi ng party cannot identify any specific evidence showing a genuine factual dispute on an esse ntial element of his claim. Patel v. Hall , 849 F.3d 970, 978 (10th Cir. 2017) (int ernal quotation marks omitted). To recover damages under § 1983 for unlaw ful arrest, a plaintiff must show he was arrested without probable cause. Cottrell v. Kaysville City , 994 F.2d 730, 733 (10th Cir. 1993). “Probable cause exists when the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustwort hy information, are sufficient in themselves to warrant a man of reasonable cau tion in the belief that an offense has been or is being committed a nd that the person . . . was involved in the crime.” Patel , 849 F.3d at 981 (interna l quotation marks omitted). The probable cause determination is based on the totality of circumstances, Florida v. Harris , 568 U.S. 237, 244 (2013), and “does not . . . require the suspect’s guilt to be more likely true than false,” Stonecipher v. Valles , 759 F.3d 1134, 1141 (10th Cir. 2014) (internal quotation marks omitted). The question is whether a reasonable officer would have concluded that the de fendant “committed a crime.” Romero v. Fay , 45 F.3d 1472, 1476 (10th Cir. 1995). “[T]he mere fact that the suspect is later acquitted of the offense for which he is arre sted is irrelevant to the validity of the arrest.” Michigan v. DeFillippo , 443 U.S. 31, 36 (1979); see Painter v. City of Albuquerque , 383 F. App’x 795, 797-98 (10th Ci r. 2010) (unpublished) (recognizing same where the charge fo r which the suspect was arrested was dropped). 2

2 We may consider non-precedentia l, unpublished decisions for their persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).5 In Oklahoma, indecent exposure occurs when a person willfully, knowingly, and lewdly exposes his pers on or genitals in any public space or any place where other persons are present to be offended. Okla. Stat. tit. 21, § 1021(A)(1). The “indecent exposure need not always occur in a public place . . . [and] may be committed any place where others are pr esent, including streets and private residences.” Martin v. State , 674 P.2d 37, 39 (Okla. Crim. App. 1983). The statute “requires only that [the perpetrator] willf ully expose himself in a place where others could see him and be annoyed.” Id. at 40. We have no difficulty concluding that Officer Poth had probable cause to arrest Mr. Pinney. Office r Poth responded to the location of an alleged indecent exposure and encountered thre e young girls. Two of th e girls independently gave remarkably consistent statements. The el even-year old girl reported that Mr. Pinney was staring at them from in side the apartment while s itting in a chair, wearing a yellow robe. She said that wh en her friend yelled at him to stop staring, he allegedly exposed his penis, which she could see throug h the open blinds. She was able to see well enough to discern that he was weari ng a penis ring. The thirteen-year girl corroborated these allegations, stating th at Mr. Pinney was wearing a yellow robe, sitting in a chair by the window in front of a computer. She yelled at him to stop staring, and Mr. Pinney smiled and exposed his penis, whic h she, too, identified as having a piercing in it. Rather than simply accep t these allegations, Offi cer Poth investigated Mr. Pinney’s version of what happened. See Cortez v. McCauley , 478 F.3d 1108,6 1119 (10th Cir. 2007) (recognizing that in some instances, bare allegations of wrongdoing, without any inve stigation, may not give ri se to probable cause). Mr. Pinney answered the door wearing a ye llow robe with nothing on underneath. Officer Poth entered the apartment and i ndependently observed the computer and the chair situated two feet fro m the window, in clear view from across the courtyard outside. Although Mr. Pinney stated that th e blinds were closed , he did not dispute that the girls saw his penis and suggested they were peeping through the blinds. Mr. Pinney confirmed as well th at he was wearing a penis ring. This investigation independently corroborated the statements and descriptions provided by the girls, which, under the totality of circumstances known to Office r Poth at the time of the arrest, reasonably caused hi m to believe that a crim e had been committed. See Easton v. City of Boulder , 776 F.2d 1441, 1450 (10th Cir. 1985) (upholding use of children’s statements as a ba sis for probable cause where their descriptions of an assault and visual identific ation of the perpetrator were corroborated by police investigation). Officer Poth had proba ble cause to arrest Mr. Pinney. Mr. Pinney contends, however, that ther e are factual disput es pertaining to what Officer Poth knew at the time of th e arrest and whether that information was reliable. See Aplt. Br. at 24. But Mr. Pinney does not dispute any of the foregoing facts, nor does he cite a ny specific evidence to show a material factual dispute; instead, he merely asserts in general ther e are factual disputes , without identifying any in particular. See, e.g., id. at 26 (stating without any r ecord citation that “[t]here also remain issues of material fact as to . . . what . . . the first witness told Officer7 Poth, and what the second w itness told him”); Reply Br . at 4 (stating without any record evidence that “[t]he r ecord is full of factual dis putes over what occurred, and what was told to Officer Poth on the ni ght of the arrest”). Although Mr. Pinney contends some facts are unc lear, including whether all of the children were on the wall, whether he made eye contact with them, whether he was standing when he allegedly exposed himself, and whether he had an erection, these issues are immaterial to the probable cause determina tion. Moreover, it is Mr. Pinney’s burden to show that the evidence O fficer Poth relied upon was not reasonably trustworthy.
See Romero , 45 F.3d at 1476 n.1. On this sc ore, Mr. Pinney speculates that the thirteen-year old’s twin sister must have given some potentially unreliable information to Officer Poth, but he offers no evidence to support that assertion. Mr. Pinney also offers an al ternative explanation for his behavior, claiming the girls trespassed on the wall and p eeped into his apartment while he innocently swayed in his chair and stared into sp ace. But the district cour t correctly recognized this explanation does not negate the probable cau se determination ab sent evidence that the probable cause determin ation was unreasonable. See id. at 1478 n.3 (noting that officers need not forgo an arrest supported by probable cause simply because the defendant offers an alte rnative, exonerating explan ation). Nothing about Mr. Pinney’s explanation sugge sts Officer Poth’s probable cause determination was unreasonable. Finally, Mr. Pinney contends the district court made improper inferences in favor of the City, in particular concluding that Officer Poth was a credible witness.8 He says such credibility de terminations are inappropriate for summary judgment, and by finding that Officer Poth was credible, the district court im permissibly accepted Officer Poth’s view that he reasonably be lieved there was probable cause to make the arrest. This argument fails for two reasons. First, although Mr. Pinney is correct that credibility de terminations are inappropriate for summary judgment, see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986), the district court made no credibility de termination here. Rather, the court evaluated the historic al facts reflected in the girl s’ statements and in Officer Poth’s report to assess whether, based on that information, Officer Poth reasonably believed that a crime had been committed. Mr. Pinney identifies no material factual dispute as to those historical facts, and the court had no need to consider Officer Poth’s credibility to dete rmine whether those facts establish probable cause. Second, the reason the district court did not need to consid er Officer Poth’s credibility to evaluate proba ble cause is because his credibility only bears on whether he subjectively believed a crime ha d been committed. See Keylon v. City of Albuquerque , 535 F.3d 1210, 1219 (10th Cir. 2008) (“The only issue of fact [the officer] points to as appropriat e for the jury to decide . . . is his credibility as to whether he believed [the suspect] was [com mitting a crime].”). But “[o]ur cases make clear that an arresti ng officer’s state of mind (ex cept for the facts that he knows) is irrelevant to the existence of probable cause.” Id. (internal quotation marks omitted). This is be cause “[p]robable cause is me asured against an objective9 standard of reasonableness.” United States v. Zamudio-Carrillo , 499 F.3d 1206, 1209 (10th Cir. 2007). Here, Mr. Pinney contends that Office r Poth unreasonably believed a crime was committed because he incorrectly in terpreted the girls’ statements. See , e.g. , Aplt. Br. at 32 (“Appellant here contends the version of even ts Officer Poth states he relied on is different than the much tamer ve rsion in the [girls’] written statements.”). He asserts the district court improperly credited Officer Poth’s version of what happened to conclude that he reasonably believed that a crime had been committed. Yet Officer Poth’s subjective interpretation of what happene d and his credibility as to whether he believed that a crime occurre d are irrelevant to the probable cause analysis. We are concerned only with wh ether Officer Poth’s determination that a crime was committed was obj ectively reasonable. We need not evaluate his credibility to make that asse ssment. Instead, we evalua te the undisputed historical facts disclosed by Officer Poth’s investiga tion, which confirm that Officer Poth’s belief was indeed objectively reasonable.
III The judgment of the dist rict court is affirmed.

Entered for the Court
Monroe G. McKay Circuit Judge