UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DANNY DEWAYNE HOPPER, 

 Plaintiff - Appellant, 

v. 

TODD FENTON; CITY OF 

CLEVELAND, OKLAHOMA, 

 Defendants - Appellees. 

No. 16-5006 

(D.C. No. 4:14-CV-00229-JED-FHM) 

(N.D. Okla.) 

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ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, GORSUCH, and MATHESON, Circuit Judges. 

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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 This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

November 29, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
3 

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 
4 

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 
5 

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