United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1894

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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. *

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Submitted: November 20, 1997

Filed: January 28, 1998

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Before BEAM, HEANEY and BRIGHT, Circuit Judges.

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BRIGHT, Circuit Judge.

John Olinger filed this civil rights action against the arresting officer and the

chief of police of the Sioux Falls Police Department, 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 investigate

certain exculpatory leads before authorities announced Olinger's arrest to the media.

The district court dismissed Olinger's entire action based upon a finding of qualified

immunity for the arresting and supervising officers. Olinger timely appealed. We

affirm.
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I. BACKGROUND

We reiterate a portion of the undisputed factual background as stated in the

district court's opinion. On Saturday, May 14, 1994, an unidentified male entered the

First Bank of South Dakota branch in Sioux Falls, South Dakota, approached bank

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. The officers determined that the robbery occurred at 11:20

a.m., on May 14, 1994. The bank's video surveillance camera time-stamped the

videotape of the incident, indicating that the robbery occurred at 11:26 a.m. However,

two days later, bank security officials determined that the bank video equipment

incorrectly set the time, and that the robbery probably occurred between 11:00 and

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 that 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 tape showed a robber with

a dark moustache who was wearing a white or light-colored baseball cap and light

colored pants.

Officer Severson, Officer Mattson, and Sergeant Gullickson sought to interview

Kevin Olinger 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 robbery, Officer Severson saw an unidentified man (later identified as John

Olinger) talking on the telephone inside the house. When the man on the telephone saw

the officers, he stepped around the corner of the room out of sight. Kevin
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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 speaking to anyone and drove away in his vehicle.

The officers noted the license plate number because they considered the man's behavior

suspicious in light of the activity taking place at the Olinger home. After interviewing

Kevin, the officers eliminated Kevin as a suspect. As the officers were leaving, Kevin

stated to them that he was obviously innocent because he wore glasses whereas the

bank robber did not. The officers maintain that the man leaving the house was not

wearing glasses and that they had never informed Kevin that the bank robber did not

wear glasses.

After the three officers returned to the bank, Sergeant Gullickson viewed the

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. Officer Severson, who was not

present when Sergeant Gullickson viewed the surveillance tape, was then asked to

watch the tape. Upon viewing the tape, Officer Severson also immediately concluded

that the robber was the man who left the Olinger residence. Detectives Larson and

Hattervig then went to the Olinger home and questioned Kevin Olinger's mother. She

informed them that the man who left the house was Kevin's brother, John Olinger

(hereinafter "Olinger"), and that he lived in Hartford, South Dakota. 

The police officers waited for Olinger to arrive at his home in Hartford. As

Olinger 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 was under arrest for the bank robbery in Sioux Falls. Olinger allowed the officers

to search his vehicle without 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 officers

concerning the bag, "Don't worry about it. Just throw it in the car. We'll look at it

later."
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Olinger was taken to the Public Safety Building in Sioux Falls, where he was

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 watch Olinger on the

black and white closed-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 Olinger 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. Officer

Simmons turned Olinger over to Minnehaha County sheriff's deputies to be booked in

the Minnehaha County Jail.

At approximately 8:30 a.m. on Monday, May 16, 1994, counsel for Olinger

telefaxed a letter to Police Chief Terry Satterlee and the State's Attorney Dave Nelson

requesting Olinger's immediate release. The letter listed the names, addresses, and

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 in

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 to

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 Monday 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 Satterlee 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 letter. Chief Satterlee also briefly asked Captain Hoier about
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the bank robbery investigation. Between receiving 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 leads contained in the letter. The Minnehaha County State's Attorney's office

filed a complaint against Olinger. At 1:30 p.m. that day, Olinger was brought before

a state magistrate judge. The magistrate judge released Olinger upon a personal

recognizance bond.

On May 18, during a search of Olinger's vehicle, authorities found a plastic bag

containing blue jeans, underwear, 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 the

complaint against Olinger for insufficient evidence to indict and because the United

States Attorney's office would handle any prosecution. There, of course, has been no

federal prosecution of Olinger.

Olinger filed this § 1983 action, claiming that Detective Larson, Chief Satterlee

and the 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, denied

defendants' motion for summary judgment with respect to Olinger's claim that Chief

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 new

order granting defendants' motion for summary judgment on all of Olinger's claims. 

II. DISCUSSION

We review de novo the district court's decision to grant a summary judgment

motion. Brodnicki v. City of Omaha, 75 F.3d 1261, 1264 (8th Cir.), cert. denied, 117

S. Ct. 179 (1996) (citation omitted). "We will affirm the judgment if the record shows

that there is no genuine issue of material 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 viewing the surveillance tape twelve times, Detective Larson concluded that

Olinger was a "dead ringer" for the man on the surveillance tape. 

We too, in reviewing the record, have compared Olinger's photo with the

surveillance tape and have observed remarkable similarities.

Olinger left the house without saying a word to anyone 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 bank

robbery, Olinger's father was threatening to sue the officers, and Olinger's mother was

crying. Olinger since has proffered a plausible explanation for his suspicious behavior.

However, at the time of the initial arrest, the officers were not aware of that

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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 be

free from a warrantless arrest without probable cause. See Hannah v. City of Overland,

795 F.2d 1385, 1389 (8th Cir. 1986) (recognizing that a warrantless arrest without

probable cause will give rise to a § 1983 claim). A police officer may lawfully arrest

an individual for a felony without a warrant if the officer has probable cause. Beck v.

Ohio, 379 U.S. 89, 91 (1964); Ripson v. Alles, 21 F.3d 805, 807-808 (8th Cir. 1994).

An officer has probable cause to make a warrantless arrest when facts known to the

officer are sufficient to make a reasonably prudent officer believe that the suspect is

committing or has committed an offense. See Ripson, 21 F.3d at 808. 

We conclude that Detective Larson had probable cause on May 14, 1994 to

make the initial arrest of Olinger for the bank robbery. In addition to the notable

physical similarity between Olinger and the 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 2
explanation.

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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 informed

Detective Larson that the man leaving the Olinger home was wearing a white hat,

which was consistent with the robber on the surveillance tape.

Olinger next argues that even if Detective Larson had probable cause for the

initial arrest in Hartford, the information he provided to Larson, along with the bank

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 investigate

Olinger's alibi assertions before lodging him in the county jail. 

We note that the exculpatory information at the time of Olinger's detention was

neither well-developed nor compelling. Specifically, at his deposition, Olinger

conceded that during his interview he never gave the police the specific time frame in

which he had been in Hartford. Furthermore, Olinger did not realize that he had in his

car a time-stamped receipt indicating he was at the Lewis Drug Store at 11:30 a.m.

Finally, Allen's inability to identify Olinger did not compel exoneration of Olinger

because Allen had described the robber differently than the robber's appearance on the

surveillance tape.

In the present case, Olinger was arrested on Saturday, May 14, 1994, at 1:30

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
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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]");

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

legal warrantless arrest based on probable cause, an affirmative duty to release arises

only if the arresting officer ascertains beyond a reasonable doubt that the suspicion

(probable cause) which forms the basis for the privilege to arrest is unfounded"). 

B. Chief Satterlee

Our conclusions that Detective Larson lawfully arrested Olinger in Hartford and

detained him in the county jail moots Olinger's claims based upon the theory that Chief

Satterlee inadequately trained or supervised Detective Larson. No amount of training

or supervision would have prevented Detective Larson from making his decisions to

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 constitutional deprivation. See

Tilson v. Forrest City Police Dept., 28 F.3d 802, 806 (8th Cir. 1994). Specifically,

Olinger states that despite having received the telefaxed letter outlining Olinger's alibi

evidence, Chief Satterlee failed to immediately order an investigation into Olinger's

alibi before releasing Olinger's name to the public later that day. 

As with Detective Larson, Chief Satterlee had no obligation to immediately

investigate Olinger's asserted alibi evidence prior to the probable cause hearing

scheduled later that afternoon. Olinger concedes that the City's policy provides that

once the police lodge a suspect in the county jail, that suspect can only be released with

the consent of the state's attorney or the court. With respect to investigating the letter,
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Chief Satterlee delegated responsibility to qualified subordinates to continue the

investigation. Such conduct cannot be said to be oppressive 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 interest

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 attorney

to ensure that an innocent 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 Chief

Satterlee's actions, while arguably insensitive, did not violate Olinger's right to due

process.

C. The City of Sioux Falls

In 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) ("The City cannot

be liable . . . whether on a failure to train theory or a municipal custom or policy theory,

unless [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 jailed, the City cannot release that person without the agreement of the state's

attorney. We reject this argument and conclude that the City's policy to transfer

jurisdiction to the county after the City has formally placed the suspect in jail is

constitutional, as long as that the suspect receives a prompt judicial determination of

probable cause, pursuant to Gerstein, which Olinger received in this case.
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III. CONCLUSION

For the reasons stated above, we affirm the district court's ruling which granted

summary judgment of dismissal of the action against Detective Larson, Chief Satterlee,

and the City. 

We add this comment. While it may be regrettable that Olinger's right to be free

of criminal charges received vindication later, rather than sooner, it happens to be a fact

of life that sometimes police officers arrest an innocent person. The words of the

United States 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 defendant

acquitted--indeed, for every suspect released. Nor are the manifold

procedural protections afforded criminal defendants under the Bill of

Rights "without limits." Patterson v. New York, 432 U.S. 197, 208

(1977). "Due process does not require that every conceivable step be

taken, at whatever cost, to eliminate the possibility of convicting an

innocent person." Ibid. 

HEANEY, Circuit Judge, concurs in the result.

A true copy.

Attest:

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