United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1894

___________ John Steven Thomas Olinger, * * Appellant, * * v. * Appeal from the United States * District Court for the District Dennis J. Larson; City of Sioux * of South Dakota. Falls; Terry Satterlee, * * Appellees. *

___________ Submitted: November 20, 1997 Filed: January 28, 1998

___________ Before BEAM, HEANEY and BRIGHT, Circuit Judges.

___________ BRIGHT, Circuit Judge.
Jo hn Olinger filed this civil rights action against the arresting officer and th e chief of police of the Sioux Falls Police Depa rtment, as well as the City of Sioux Falls, claiming the defendants violated his civil rights by arresting and detaining him without probable cause as an alleged bank robber and by failing to immediately investigat e certai n exculpatory leads before authorities announced Olinger's arrest to the media

. The distr ict court dismissed Olinger's entire action based upon a finding of qualifie d immuni ty for the arresting and supervising officers. Olinger timely appealed. W e affirm.-2-

I. BACKGROUND

We reit erate a portion of the undisputed factual background as stated in th e district court's o pinion. On Saturday, May 14, 1994, an unidentified male entered the First Bankof South Dakota branch in Sioux Falls, South Dakota, approached ban k teller Loreli Allen, told her he had a gun and demanded money. After Allen handed the robber $258.00, the robber exited the bank.
Several city police officers, along with an F.B.I. special agent arrived at the bank to investigate the robbery. Th e officers determined that the robbery occurred at 11:20 a.m., on Ma y 14, 1994. The bank's video surveillance camera time-stamped th e videotape of the incident, indicating that th e robbery occurred at 11:26 a.m. However, two da ys later, bank security officials determined that the bank video equipmen t incorr ectly set the time, and that the robbery probably occurred between 11:00 an d 11:10 a.m.
Allen described the robber as a white male, 5'6" to 5'9" in height, brown hair, no facial hair, slender build, 25 to 35 years of age, 145-155 pounds, wearing dark pants and a green nylon jacket. Allen stated th at the robber resembled bank customer Kevin Olinger, but maintained that she did not think it actually was Kevin Olinger. In sharp contrast to Allen's description of the robber, the surveillance t ape showed a robber with
a dar k moustache who was wearing a white or light-colored baseball cap and ligh t colored pants.
Officer Severson, Officer Mattson, and S ergeant Gullickson sought to interview KevinOlinger at his parents' home in Sioux Falls. The officers asked Kevin Olinger to step out on the front porch to discuss the bank robbery. As they were discussing the bank r obbery, Officer Severson saw an unidentified man (later identified as Joh n Olinger) talking on the telephone inside the house. When the man on the t elephone saw the officers, he stepped around the corner of the room out of sight. Kevin-3-

Olinger's father joined Kevin on the front porch, where both men became very angry and threatened to sue the officers. Shortly thereafter, the man who had been talking on the telephone left the house without speakin g to anyone and drove away in his vehicle. The officers noted the license plate number because they considere d the man's behavior suspicious in light of the activity taking place at the Olinger home. After interviewing Kevin, the officers eliminated Kevi n as a suspect. As the officers were leaving, Kevin stated to them that he was obviously innocent because he wore glasses whereas th e bank robb er did not. The officers maintain that the man leaving the house was no t wearing glasses and that they had never informed Kevin that the bank robber did not wear glasses.

Aft er the three officers returned to the bank, Sergeant Gullickson viewed th e videotape for the first time, and immediately concluded that the man on the tape was the man he had just seen leaving the Olinger residence. Off icer Severson, who was not present w hen Sergeant Gullickson viewed the surveillance tape, was then asked t o watch the tape. Upon viewin g the tape, Officer Severson also immediately concluded that the ro bber was the man who left the Olinger residence. Detectives Larson an d Hattervig then went to the Olinger home and questioned Kevin Olinger's mother. She inf ormedthem that the man who left the house was Kevin's brother, John Olinge r (hereinafter "Olinger"), and that he lived in Hartford, South Dakota.

The pol ice officers waited for Olinger to arrive at his home in Hartford. A s Oli nger was getting out of his vehicle, Detective Larson determined that Olinger was a "dead ringer" for the man in the bank surveillance tape and announced to Olinger that he wa s under arrest for the bank robbery in Sioux Falls. Olinger allowed the officers to search his vehicle wi thout a search warrant. Upon searching the vehicle, Detective Larson looked in the bag from the Lewis Drug Store and noted that it contained blue jeans , a shirt or underwear, and a receipt. Detective Larson told the other officer s concerning the b ag, "Don't worry about it. Just throw it in the car. We'll look at i t later."-4-

Ol inger was taken to the Public Safety Building in Sioux Falls, where he wa s interviewed by Detective Larson and F.B.I. Agent Miller. During the interview, Officer Simmons brought Loreli Allen, the bank teller, into the building to wa tch Olinger on the black and white c losed-circuit television set. Allen did not recognize Olinger. At the conclusion of the interview, Detective Larson and F.B.I. Agent Miller made a "combined decision" to formally arrest Ol inger and lodge him in the jail on a charge of first degree robbery, a felony under South Dakota law. The officers then conducted a criminal history check, which revealed that Olinger did not have a prior record

. Detective Larson dictated his report and then went home for the weekend. Office r Simmons turned Olin ger over to Minnehaha County sheriff's deputies to be booked in the Minnehaha County Jail.

Atap proximately 8:30 a.m. on Monday, May 16, 1994, counsel for Olinge r telefaxed a letter to Police Ch ief Terry Satterlee and the State's Attorney Dave Nelson requesting Olinger's immediate release. The letter listed the names, addresses, an d telephone numbers of witnesses who would testify that Olinger had been in Hartford between 11:00 and 11:15 a.m. on Saturday, May 14. The letter further stated that on Sunday evening, counsel for Olinger spoke with the Lewis Drug Store manager i n person and looked at the original gift certificate and check Olinger had presented. Both
were date stamped Saturday, May 14 at 11:30 a.m. The letter urged the police t o contact the store manager, who also had in his possession the backup cash register tape showing the purchase was made at 11:30 a.m. In light of weekend press reports that the police department intended to announce at noon on Mond ay the name of the person arrested for the bank robbery, the letter also asked the police chief and the prosecutor to keep Olinger's identity secret until Olinger could be exonerated and released.
Upon receiving the telefaxed letter, Chief Sat terlee contacted Captain Hoier, the Chief of Detectives, and advised him to call the state's attorney and make him aware of the information in the lett er. Chief Satterlee also briefly asked Captain Hoier about-5-

the bank robbery investigation. Between recei ving the letter at 8:30 a.m. and Olinger's arraignment at 1:30 p.m., neither Chief Satterlee nor Detective Larson investigated any of the l eads contained in the letter. The Minnehaha County State's Attorney's offic e filed a complaint against Olinger. At 1:30 p.m. that day, Olinger was brought before
a state m agistrate judge. The magistrate judge released Olinger upon a persona l recognizance bond.
On May 18, during a search o f Olinger's vehicle, authorities found a plastic bag containing blue jeans, un derwear, socks, and a receipt for the items from Lewis Drug, dated May 14, 1994, at 11:30 a.m. On May 19, the State's Attorney dismissed th e complain t

against Olinger for insufficient evidence to indict and because the Unite d States Attorney' s office would handle any prosecution. There, of course, has been no federal prosecution of Olinger.
Olinger filed this § 1983 ac tion, claiming that Detective Larson, Chief Satterlee andthe City were responsible for a violation of his constitutional rights. The district court initially entered an order granting in part defendants' motion for summary judgment based upon qualified immunity. The district court, however, denie d de fendants' motion for summary judgment with respect to Olinger's claim that Chie f Satterlee failed to train or supervise Detective Larson and Olinger's claim against the City. Subsequently, the district court vacated the previous order and entered a ne w order granting defendants' motion for summary judgment on all of Olinger's claims. II. DISCUSSION

We revie w de novo the district court's decision to grant a summary judgmen t motion. Brodnicki v. Cityof Omaha , 75 F.3d 1261, 1264 (8th Cir.), cert. denied , 117 S. Ct. 179 (1996) (citation omitted). "W e will affirm the judgment if the record shows that there is no genuine issue of mater ial fact and that the prevailing party is entitled to judgment as a matter of law." Id. (citation omitted).Two of the officers who saw John Olinger at his parents' home in Sioux Falls 1 immediately concluded that Olinger was the man on the surveillance tape. In addition, after vi ewing the surveillance tape twelve times, Detective Larson concluded tha t Olinger was a "dead ringer" for the man on the surveillance tape.
We too, in reviewing the record, have compared Olinger's photo with th e surveillance tape and have observed remarkable similarities. Olinger left the house without saying a word toanyone despite the fact that two 2 police detectives were in a heated exchange with Olinger's brother and father, during which the detectives were suggesting Olinger's brother had committed the ban k robbery, Olinger's father was threatening to sue the officers, and Olinger's mother was crying. Olinger since has proffered a plausible expla nation for his suspicious behavior. However, at t he time of the initial arrest, the officers were not aware of tha t -6- A. Detective Larson
With respect to Detective Larson's arrest of Olinger in Hartford, Olinger claims that Detective Larson violated Olinger's clearly-established constitutional right to b e free from a warrantless arrest without probable cause. See Hannah v. Cit y of Overland , 795 F.2d 1385, 1389 (8th Cir. 1986) (recognizing that a warrantless arrest withou t probablecause will give rise to a § 1983 claim). A police officer may lawfully arrest an individual for a fel ony without a warrant if the officer has probable cause. Beck v. Ohio , 379 U.S. 89, 91 (1 964); Ripson v. Alles , 21 F.3d 805, 807-808 (8th Cir. 1994). An offi cer has probable cause to make a warrantless arrest when facts known to th e officerare sufficient to make a reasonably prudent officer believe that the suspect i s committing or has committed an offense. See Ripson , 21 F.3d at 808.

We conc lude that Detective Larson had probable cause on May 14, 1994 t o
ma ke the initial arrest of Olinger for the bank robbery. In addition to the notabl e physical similarity between Olinger and th e robber on the surveillance tape, Detective 1 Larson and the other officers believed that Olinger had acted suspiciously during the officers' visit to his parents' home. Furthermore, Kevin Olinger volunteered to police 2explanation. -7-

officers that the bank robber did not wear glasses, and the officers noticed that the man who left Olinger's home did not wear glasses. Finally, Officer Gullickson informe d Detective Larson that the man leaving the Olinger home was wearing a white hat , which was consistent with the robber on the surveillance tape.
Olinge r next argues that even if Detective Larson had probable cause for th e initia larrest in Hartford, the information he provided to Larson, along with the ban k teller's inability to positively identify Olinger as the robber vitiated whatever probable
cause that may have previously existed. Furthermore, Olinger in essence argues that he had a clearly-established constitutional right to have Detective Larson investigat e Olinger's alibi assertions before lodging him in the county jail.

We note that the exc ulpatory information at the time of Olinger's detention was
ne ither well-developed nor compelling. Specifically, at his deposition, Olinge r conceded that d

uring his interview he never gave the police the specific time frame in which he had been in Hartford. F urthermore, Olinger did not realize that he had in his
car a time-st amped receipt indicating he was at the Lewis Drug Store at 11:30 a.m

. Final ly, Allen's inability to identify Olinger did not compel exoneration of Olinge r because Allen had described the robber dif ferently than the robber's appearance on the surveillance tape.

In the present case, Olinger was arrested on Saturday, May 14, 1994, at 1:3 0 p.m. Olinger was presented to the state magistrate judge on Monday, May 16, 1994 at 1:30 p.m . This complies with the requirement that an individual arrested without a warrant be brought promptly before a magistrate judge for a probable cause hearing. Gerstein v. Pugh , 420 U.S. 103, 124-25 (1975); County of Riverside v. McLaughlin , 500 U.S. 44, 56 (1991) (stating that a judicial hearing "within 48 hours of arrest will, as a general matter, comply with the promptness requirement" of the fourth-8-

amendment); see Brodnicki , 75 F.3d at 1264 (recognizing that a police officer need not investigate a suspect's alibi and "conduct a mini-trial before arresting [the suspect]"); Thompso n

v. Olson , 798 F.2d 552, 556 (1st Cir. 1986) (providing that "following a legal warra

ntless arrest based on probable cause, an affirmative duty to release arises only if the arresting officer ascertains beyond a reasonable doubt that the suspicio n (probable cause) which forms the basis for the privilege to arrest is unfounded").

B. Chief Satterlee

Our conclusions that Detective Larson lawf ully arrested Olinger in Hartford and detained him in the county jail moots Olinger's c laims based upon the theory that Chief Satterlee inadequate ly trained or supervised Detective Larson. No amount of training
or supervision would have prevented Detective Larson from making his decisions t o arrest and to detain Olinger based upon probable cause. See Kohl v. Casson , 5 F.3d 1141, 1148 (8th Cir. 1993) ("No amount of training could have prevented [the officers] from doing exactly what they did here, which was to act reasonably on the information available to them").
Olinger also claims that Chief Satterlee can be held liable under § 1983 because Chief Satterlee directly participated in causing Olinger's consti tutional deprivation. See Tilson v. Forrest City Police Dept. , 28 F.3d 802, 806 (8th Cir. 1994). Specifically , Olinger states that d espite having received the telefaxed letter outlining Olinger's alibi evide nce, Chief Satterlee failed to immediately order an investigation into Olinger' s alibi before releasing Olinger's name to the public later that day.

As wi th Detective Larson, Chief Satterlee had no obligation to immediatel y investiga te Olinger's asserted alibi evidence prior to the probable cause hearin g schedule d later that afternoon. Olinger concedes that the City's policy provides tha t once the police lodge a suspect in the county jail, that suspect can on ly be released with the consent of the state's attorneyor the court. With respect to investigating the letter,-9-

Chief Satterlee delegated responsibility to qualified subordinates to continue th e investigation. Such conduct cannot be said to be oppress ive or unconstitutional toward Olinger. With respect to the press release, Olinger does not have a due process claim for the publication of his name as an arrested suspect. See Paul v. Davis , 424 U.S. 693, 712 (1976) (holding that injury to reputation is neither a liberty nor property interes t guaranteed against state deprivation without due process).

It is regrettable that upon receiving the telefaxed letter from Olinger's counsel, Chief Satterlee did not react in a more hands-on manner, including at least a cursory investigation of Olinger's asserted alibi and personally contacting the state's attorne y to ensure that an innoc ent man would not be publicly accused of committing a serious crime. Nevertheless, given the numerous identifications of Olinger by police officers and the lack of time before the magistrate judge's hearing, we conclude that Chie f Satter lee's actions, while arguably insensitive, did not violate Olinger's right to du e process.

C. The City of Sioux Falls

I n light of our rulings that Detective Larson and Chief Satterlee did not violate Olinger's fourth amendment rights, Olinger's claims against the City based on its alleged inadequate training and supervision of Detective Larson and Chief Satterlee, must also fail. See Abbott v. City of Crocker , 30 F.3d 994, 998 (8th Cir. 1994) ("TheCity cannot be liable . . . whether on a failure to train theory or a municipal cus tom or policy theory, unle ss [an officer] is found liable on the underlying substantive claim"). Olinger also challenges the constitutionality of the City's policy that once a person has been arrested and j ailed, the City cannot release that person without the agreement of the state' s atto rney. We reject this argument and conclude that the City's policy to transfe r jurisdictio n

to the county after the City has formally placed the suspect in jail i s constitutional, as long as that the suspect receives a prompt judicial determination of probable cause, pursuant to Gerstein , which Olinger received in this case.-10-

III. CONCLUSION

For the reasons stated

above, we affirm the district court's ruling which granted summary judgment of dismissal of the action against Det ective Larson, Chief Satterlee, and the City.
We add this comment. While it may be regrettable th at Olinger's right to be free of criminal charges received vindication later, rather than sooner, it happens to be a fact of life t hat sometimes police officers arrest an innocent person. The words of th e United Sta

tes Supreme Court in Baker v. McCollan , 443 U.S. 137, 145 (1979), seem appropriate here:

The Constitution

does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendan t acqui tted--indeed, for every suspect released. Nor are the manifol d proc edural protections afforded criminal defendants under the Bill o f Righ ts "without limits." Patterson v. New York , 432 U.S. 197, 20 8 (1977). "Due process does not require that every conceivable step b e taken, at whatever cost, to eliminate the possibility of convicting a n innocent person." Ibid

.

HEANEY , Circuit Judge, concurs in the result. A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.