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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-50608
LILLIAN FREEMAN,
Plaintiff - Appellant,
VERSUS
COUNTY OF BEXAR; ET AL,
Defendants,
JOHN JENNINGS, Individually and in his official capacity;
GEORGE SAIDLER, Individually and in his official capacity,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Texas
May 4, 2000
Before JONES, DUHÉ, and WIENER, Circuit Judges
DUHÉ, Circuit Judge
In this 42 U.S.C. § 1983 case, Appellant Lillian Freeman
challenges the district court's entry of summary judgment granting
Officer John Jennings and Detective George Saidler qualified
immunity. We affirm.
BACKGROUND
This is the second time we have entertained an appeal from the

district court's grant of summary judgment in this matter.1 In
Freeman I we reversed and remanded to the district court so that it
could consider the affidavit of Appellant Freeman's expert witness,
Ray Hildebrand. On remand, the district court did so and again
granted summary judgment to Detective Saidler and Officer Jennings
ruling that they were entitled to qualified immunity.
STANDARD OF REVIEW
We review a grant of summary judgment de novo, viewing the
facts and inferences in the light most favorable to the party
opposing the motion. See Hall v. Gillman, Inc., 81 F.3d 35, 36-37
(5th Cir. 1996). Summary judgment is appropriate if the record
discloses "that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c); accord Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
In order to prevail in the instant case, Freeman must
demonstrate that a genuine issue of material fact exists as to
1For an in depth recitation of the events underlying Appellant's
claim see Freeman v. County of Bexar, 142 F.3d 848 (5th Cir. 1998)
("Freeman I"). Briefly, the San Antonio Police Department arrested
Freeman twice on suspicion that she had committed two separate bank
robberies. The state eventually charged Freeman in connection with
these two robberies. Later, during a third similar robbery, the
police apprehended another suspect, Carolyn Yvonne Butler. The
federal government indicted and convicted Butler for all three
robberies. The state ended its prosecution of Freeman several
weeks after Butler's conviction. Freeman sued a number of county
and municipal actors including Detective Saidler, the investigating
officer in the first robbery, and Officer Jennings, the
investigating officer in the second robbery, for deprivation of her
civil rights.
2

whether the Appellees knowingly provided false information to
secure the arrest warrants or gave false information in reckless
disregard of the truth. See Franks v. Delaware, 438 U.S. 154, 171
(1978). Since we must draw all disputed inferences in the
Appellant's favor, we must disregard any such properly contested
statements in the affidavits and then determine whether the warrant
would establish probable cause without the allegedly false
information. See id.2 Appellant must then demonstrate an issue of
material fact as to whether any reasonably competent officer
possessing the information that each officer had at the time he
swore his affidavit could have concluded that a warrant should
issue. See Malley v. Briggs, 475 U.S. 335, 341 (1986). We must
look to the totality of circumstances in making this decision. See
Illinois v. Gates, 462 U.S. 213, 238-39 (1983). Even if officers
of reasonable competence could disagree on this issue, the
Appellees are still entitled to qualified immunity. See Malley,
2We find a bit puzzling the district court's citation to Hart v.
O'Brien, 127 F.3d 424 (5th Cir. 1997) abrogation on other grounds
recognized by Spivey v. Robertson, 197 F.3d 772, 775 (5th Cir.
1999) citing Kalina v. Fletcher, 522 U.S. 118 (1997), for the
proposition that "[b]ecause the Court must view the facts in the
light most favorable to plaintiff, it will not consider the
disputed facts in determining the qualified immunity question."
Upon careful review of the opinion, however, it appears that the
district court meant no more than that if Freeman could create a
material issue of fact as to the truthfulness of any of the
statements in the affidavits, then those statements would be
disregarded when it examined the overall reasonableness of the
officers' respective probable cause determinations. While we agree
with the Appellant that the district court's reference to Hart is
prone to misinterpretation, we are confident that the district
court correctly applied the standard as laid out in Franks.
3

475 U.S. at 341.
DISCUSSION
I. Detective Saidler
Freeman contends that Saidler acted unreasonably in his
swearing of the probable cause affidavit recommending her first
arrest. She alleges that Saidler both included false information
in his affidavit and excluded exculpatory information from it.
Saidler based his affidavit upon: the sworn statements of
bank tellers Susan Rios and Joey King that the woman pictured in an
FBI surveillance picture shown to them was the one who had
committed the first robbery; Robert Marley's confidential
disclosure that he had worked with Freeman and recognized her from
a local broadcast of the FBI picture on a "crime stoppers" segment;
the affidavit of Christina Hansen, Freeman's former co-worker, in
which she stated that she "recognized the girl as Lillian Freeman"
and that Freeman had sunglasses "like the one[s] in the pictures;"
the affidavit of Matthew Huizar, Freeman's former co-worker, who
looked at a series of surveillance pictures and stated in his
affidavit that he "told [Saidler] it was Lillian Freeman;" and the
fact that the police seized from Freeman's house a sweatshirt,
pants, sunglasses and a wig similar to those pictured in the FBI
surveillance photo. On the whole, this information is sufficient
to support a reasonable officer's belief that probable cause
existed. Still, we must determine whether Freeman's allegations
create a material issue of fact as to the truthfulness of any of
4

the information and/or whether Saidler excluded allegedly
exculpatory material that might call into question the
reasonableness of his probable cause determination.
A. Rios' and King's Statements
Freeman alleges that Saidler falsely stated that Rios and King
had positively identified her as the robber. This allegation is
wholly without merit. Saidler's affidavit reads simply that "the
black female in the photograph developed by the FBI was the
individual that robbed the San Antonio Credit Union at gunpoint on
6-4-91." The record clearly indicates that both Rios and King
stated that the unnamed person in the picture looked like the
person that had robbed them. They did not indicate that the robber
was Freeman, and Saidler did not suggest that they did.
B. Marley's Confidential Identification
Freeman contends that under Aguilar v. Texas, 378 U.S. 108,
110-114 (1964) abrogated on other grounds by Gates, 462 U.S. at
238-39, Marley's confidential identification of her as the robber
lacked sufficient supporting facts to establish probable cause.
Freeman's reliance on Aguilar is misplaced. Unlike Saidler's
affidavit, the affidavit in question in Aguilar contained only
unsupported allegations of a confidential informant. See id. at
109, n.1. Saidler listed Marley's testimony as but one factor in
his probable cause determination. Moreover, Marley informed the
police that he had worked with Freeman and thus provided some
indication that his information was credible. Accordingly, we
5

cannot read Aguilar to suggest that Saidler's partial reliance upon
Marley's testimony was unreasonable.
C. Hansen and Huizar Affidavits
Freeman insists that Saidler coerced Hansen and Huizar into
identifying her and misstated the strength of their testimony in
his affidavit. Freeman's alleged evidence of coercion consists of
each witnesses' subsequent statements that Saidler appealed to his
or her civic duty to testify and Hansen's references to Saidler's
size and physical build. While evidence of reliance upon coerced
testimony may be enough to defeat a summary judgment grant of
immunity, see Geter v. Fortenberry, 882 F.2d 167, 170-71 (5th Cir.
1989), Freeman's allegations do not permit any inference of
coercion. Both Hansen and Huizar admitted to being reluctant to
testify in this matter. There is no evidence that Saidler did
anything more than request that each reluctant witness testify.
Appealing to an uncooperative witness' civic duty to testify is
fundamentally different from coercing a witness to testify to a
certain fact. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 488
(1971) ("But it is no part of the policy underlying the Fourth and
Fourteenth Amendments to discourage citizens from aiding to the
utmost of their ability in the apprehension of criminals.").
Neither Hansen's nor Huizar's testimony suggests that Saidler
appealed to their civic duty specifically to implicate Freeman.
Moreover, the mere fact that Detective Saidler is a large man does
not permit a reasonable inference of coercion.
6

As there is no credible evidence of coercion, Saidler's
reliance upon the exact wording of Hansen's and Huizar's sworn
statements is undoubtedly reasonable. He simply could not have
predicted their later recanting.3 Because we look to the totality
of circumstances as they existed at the time that the officer
determines whether probable cause exists, Hansen's and Huizar's
subsequent disavowals do not create an issue of material fact as to
the truthfulness of Saidler's affidavit.
D. Seized Items
Freeman insists that the items seized from her house are so
common that they cannot form the basis of probable cause. Again,
while the seized items alone may not provide probable cause, when
taken as a whole the information included in Saidler's affidavit is
sufficient to permit a reasonable officer to infer that probable
cause existed for Freeman's arrest.
E. Omitted Evidence
Freeman alleges that Saidler was aware of exculpatory
information that he did not include in his affidavit. Freeman
3Appellant correctly notes that the district court ventured
beyond the proper scope of review on summary judgment when it
stated that it "does not find the testimony of Huizar and Hansen
credible.". See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). Still, whether or not the district court found Huizar and
Hansen credible is irrelevant for determining the reasonableness of
Saidler's actions at the time he swore his affidavit. Saidler
could not have predicted that the witnesses would later recant
their testimony and did not have any information suggesting that
they were not telling the truth in their sworn statements.

7

cites first to Saidler's alleged awareness of the United States
Attorney's and the FBI's respective determinations that they did
not have probable cause to arrest her. This evidence demonstrates
little more than that reasonable officers disagreed. It does
nothing to show that Saidler acted unreasonably. Next, Freeman
notes that the results of a latent fingerprint analysis did not
implicate her. As the district court reasoned, this evidence is
inconclusive at best. It neither implicated, nor exonerated
Freeman and we cannot read it to do either.
Freeman's final assertions of error concern Saidler's failure
to investigate another anonymous tip given to the crime stoppers
program and the failure of any police officer to identify Freeman
as the robber by comparing the surveillance photos with other
photos of Freeman. We agree with the district court that there is
no evidence to suggest that either of these allegations calls into
question the reasonableness of Saidler's actions.
II. Officer Jennings
Freeman insists that Jennings acted unreasonably in relying
upon Saidler's investigation of the first robbery in determining
probable cause for her arrest in the second robbery. Because there
is no genuine issue of material fact concerning the reasonableness
of Saidler's investigation, it follows that Jennings was reasonable
in his reliance upon the information gleaned from this
investigation. See United States v. Walker, 960 F.2d 409, 416 (5th
Cir. 1992) (holding that determination of probable cause may rest
8

upon the collective knowledge of the police force if there is
communication between the officers). Freeman demonstrates no issue
of material fact as to the truthfulness of any of the information
relied upon by Jennings4; and, accordingly, there is no question as
to the reasonableness of his actions.
CONCLUSION
For the above stated reasons, we AFFIRM the trial court's
grant of summary judgment to Detective Saidler and Officer
Jennings.
4Once again, Freeman misstates the officers' reliance upon the
King and Rios testimony. She insists that Jennings's claimed in his
affidavit that Saidler informed him that Rios and King had
identified Freeman as the robber. Just like Saidler's affidavit,
Jennings's states merely that King and Rios recognized the unnamed
woman in the FBI photo as the woman who had robbed them. Neither
officer suggested that King and Rios indicated that the pictured
woman was Freeman.
9