Denmark v. Starcher

Filing 91

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND DISMISSING CASE WITH PREJUDICE: It is ORDERED that Defendant's 70 Motion for Summary Judgme nt is GRANTED; Plaintiff's 72 Motion for Partial Summary Judgment is DENIED and Plaintiff's 1 Complaint is DISMISSED WITH PREJUDICE. The Clerk is DIRECTED to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 3/22/16. (cnd) Modified relationship on 3/22/2016 (cnd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JACKIE DENMARK,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:14CV58
(Judge Keeley)

CPL. D.P. STARCHER,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70], DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72], and
DISMISSING CASE WITH PREJUDICE
Pending before the Court are competing motions for summary
judgment filed by the parties. The first is a motion for summary
judgment (dkt. no. 70) filed by the defendant, Corporal D.P.
Starcher (“Starcher”) of the West Virginia State Police. The second
is a motion for partial summary judgment (dkt. no. 72) filed by the
plaintiff, Jackie Denmark (“Denmark”). For the reasons that follow,
the Court GRANTS Starcher’s motion and DENIES Denmark’s motion.
I. BACKGROUND
A.

Factual Background
As it must, the Court construes the facts in the light most

favorable to each non-movant. See Ussery v. Manfield, 786 F.3d 332,
333 (4th Cir. 2015).
In May, 2006, a seventeen year old boy named David Wayne
Beach, III (“Beach”) disappeared.1 The police investigated Beach’s

1

The victim’s name sometimes appears as “Beech” at various
locations in the filings.

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
disappearance after his mother reported him missing, but the only
lead they had at the time was that Beach was a close friend of
William Albert “Seth” Denmark (“Seth”). Based on that information,
the Roane County, West Virginia, Sheriff’s Office dispatched Deputy
Sergeants

Kevin

Unger

(“Deputy

Unger”)

and

Douglas

Eldridge

(“Deputy Eldridge”) (collectively “the Deputies”) to the Denmark
residence to inquire as to whether anyone had seen Beach or knew of
his whereabouts.
At the residence, the Deputies spoke with Seth and his
girlfriend, Veronica Cottrill (“Cottrill”),2 who was living there
with

her

daughter.

Both

denied

any

knowledge

of

Beach’s

whereabouts. (Dkt. No. 7-3 at 2, DKt. No. 77-4 at 2). Notably, the
Deputies never saw or spoke with either of Seth’s parents, William
Albert Denmark (“Mr. Denmark”) or Jackie Denmark, because Seth
advised them that his parents were not home.

With no further

leads, the investigation went cold.
Finally, in January, 2010, police received a break in the case
when Cottrill informed them that she had knowledge of Beach’s
disappearance. On February 2, 2010, she provided police with a

2

Cottrill’s full name is Veronica Nicole Cottrill Clowser. Her
name sometimes appears as “Cottrell” in the pleadings, and the
Court will not alter the spelling where quoted.
2

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
detailed statement of the events that had culminated in Beach’s
murder and Seth’s subsequent cover-up.3 (Dkt. No. 77-12).
Cottrill recounted how she and Seth had picked up Beach while
driving around Spencer, West Virginia, on May 14, 2006. (Dkt. No.
77-12 at 5). Seth had noticed Beach across from the courthouse and
pulled over to speak to him. When Seth told Beach that he and
Cottrill were going to his house for a little while, Beach got into
the car and accompanied the pair to Seth’s house in Calhoun County,
West Virginia. Id. at 5-6.
Once at the house, Seth and Beach began playing video games.
Shortly thereafter, Seth asked Beach to help him dig a hole,
ostensibly to bury trash, up on a hill on the Denmark property. Id.
at 6. At one point, Denmark asked Cottrill to go up on the hill to
check on the boys. Id. Upon doing so, she observed a “huge hole,”
“big enough for [Beach] to stand up in,” easily over five feet
deep. Id. Cottrill noted that Seth and Beach were “joking and
carrying on”; she did not believe Seth possessed a gun at that
point. Id. After coming down from the hill, the boys, who by now

3

Cottrill was accompanied to the interview by her father,
Ronnie Cottrill. Chief Deputy Todd Cole and Lieutenant Jeff Smith
of the Roane County Sheriff’s Office conducted Cottrill’s
interview. (Dkt. No. 71-3 at 12).
3

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
were covered in mud from digging, began to wash each other off with
the hose. Id. Cottrill recalled that Denmark took pictures of them.
Id.
By this time, it was late evening, so the group sat down to
eat dinner together. Id. at 7. Afterwards, Seth told Cottrill that
he and Beach were going back up the hill to “put somethin’ [sic] in
[the hole] and they were gonna’ [sic] bury it.” Id.

Prior to

leaving, however, Seth went into his mother’s bedroom, stating that
he needed to retrieve something. Id. at 8. After doing so, Seth
pulled his mother aside in the kitchen and spoke to her. Id.
Whatever he told his mother upset her so terribly that she began
screaming at him, “no, no, no.” Id. Denmark then went into the
living room and sat down, shaking her head. Id.

In retrospect,

Cottrill believed this was when Seth told his mother that he
intended to shoot Beach, and that Denmark probably did not believe
him because Seth had a history of making empty threats. Id.
About an hour later, while Cottrill, her daughter, and Denmark
were alone in the house, four gunshots rang out. Id.

When Denmark

heard the shots, she jumped to her feet, began shaking her head,
and put her hands on her head. Id.

About fifteen minutes later,

Seth returned to the house without Beach. Id. He was covered in mud

4

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
and demanded that Cottrill grab a flashlight and accompany him back
up the hill. Id.

Initially, she refused. According to Cottrill,

Denmark told Seth “she doesn’t need to go up there, she doesn’t
need to do it.”4 Id. At that point, Seth pulled a .38 caliber
silver handgun with a white handle from his rear waist, and again
demanded that Cottrill grab a flashlight and come with him. Id. 89, 10. This time she did so. Id. at 10.
Outside, Cottrill asked Seth what was happening. Rather than
explain, he instructed her to get on his four-wheeler and hold on
to a shovel that appeared to have just been hosed off. Id. At the
top of the hill, Cottrill noticed that the shovel had blood on the
end of it, and asked Seth why there was blood on the shovel, where
was Beach, and what was going on. Seth told her to shut up and do
what he said. Id.

At that point, he again pulled the gun from his

waistline, pointed it at Cottrill, told her to grab the shovel and
follow him. Id.
The pair walked about 50-75 feet beyond an old fence on the
top of the hill to the hole the boys had dug.

4

There, Cottrill saw

At another point in her statement, Cottrill provides a very
similar, but slightly different recitation of Denmark’s reply to
Seth’s demand: “She said that I didn’t need to go. That I didn’t
need to be in it.” (Dkt. No. 77-12 at 9).
5

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
Beach’s body lying in the hole, hunched up on his knees against the
side wall, as if “he had just been dropped down in the hole.” Id.
at 11-12. Cottrill thought Beach was dead; blood was everywhere,
and there was a hole in the back of Beach’s head. Id. at 11.
At this point, Cottrill dropped everything and attempted to
flee, but Seth grabbed her and threw her on the ground. Id. He
demanded that she stand up and hold the flashlight; again, she
refused. Id. At that point, Seth pointed the gun at her and
threatened that if she attempted to leave he would shoot her. Id.
To demonstrate how serious he was, Seth instructed her to watch as
he fired another round into Beach’s body. Id.

Beach made a

“groaning sound” and fell further into the hole. Id. Cottrill again
attempted to flee, but stopped when Seth renewed his threats,
stating that if she told anyone he would kill her and her daughter,
and they would never be found. Id. at 12.
As Seth took up the shovel to fill in the hole, Cottrill
dropped the flashlight and ran. Id. He chased her down, at which
point she fell and cut her knee on the fence, resulting in a scar.
Id. Seth pulled Cottrill back to the hole, tied her up, and forced
her to watch as he spent the next forty-five minutes filling in the
grave. Id.

6

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
When they returned to the house, Denmark was crying, saying
that she wanted to be left alone and “didn’t want to see.” Id. at
13.

She then locked herself in her bedroom for the rest of the

night. Id. at 22. Cottrill has never returned to the site of the
murder. Id. at 12.
About a week or so later, someone came to the house asking
about Beach.5 Id. at 21. Cottrill stepped outside to see if
everything was okay, but went back to the house after Denmark began
crying. Id. As soon as Seth finished talking and came back inside,
Denmark told him to “just get rid of it,” which Cottrill took to
mean the gun. Id.; see also id. at 14. Seth agreed to get rid of it
later. Id. at 21. Later that night, Cottrill observed Seth place
what she believed to be the handgun he had used to shoot Beach,
wrapped in a sock, into a white plastic pipe sticking out of the
ground near the house. Id. at 14-15, 21. She thought it was the
same gun because it was his favorite gun, and the only one that he
wrapped in a sock. Id. at 21.

5

It is unclear who this person was.
During Cottrill’s
statement, Deputy Todd Cole speculated that it could have been one
of the other deputies. (Dkt. No. 77-12 at 21). One may query
whether this was the visit by Deputies Unger and Eldridge, who
reported that they did not speak to anyone other than Seth and
Cottrill, and that Seth had told them his parents were not home.
7

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
Some time after that, Seth and Cottrill moved to Spencer, West
Virginia. One night in December, 2006, Seth came home from work
around 6:00 p.m. and told Cottrill that he had to go to his
mother’s house. Id. at 13. When he returned between two and three
o’clock in the morning, he was covered with an awful smell.6 Id.
When Cottrill pressed him to tell her what the smell was, Seth
was evasive, stating vaguely that “you can never point, pin
anything on me,” and not to worry about it. Id. Eventually, he
warned her: “[I]f you ever try and tell anybody what we’ve done it
will all be your fault. . . . [I]f you open your mouth, you’ll be
dead too, so just keep it shut.” Id.
The following day, Cottrill overheard Seth and his father
talking about having dug up and burned Beach’s body the night
before. Id. at 13, 21. Although she did not hear anything about how
or where they did it, Cottrill did hear Mr. Denmark state that he
needed to get lye and “put lye on the fire pit and burn it again.”
Id. at 14. She also recalled that Seth had poured lye, or some
other white substance,7 all over the hole where he had buried

6

At another point in her statement, Cottrill places Seth’s
return at around 1:30 a.m.
7

Cottrill discussed both lye and lime during her statement.
Both are white powdery substances, and it is unclear whether she
knew the difference between them or which was actually used.
8

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
Beach’s body, and that she had seen large bags around the hole. Id.
at 14, 19. Finally, Cottrill recalled that there were several burn
pits on the Denmark property. Id. at 14.
Largely based on Cottrill’s statement,8 Starcher obtained a
warrant to search the Denmark property.

On February 23, 2010, he

and an anthropologist from the Smithsonian Institution, Dr. Owsley,
accompanied West Virginia state troopers on the search. (Dkt. No.
7 at 5).
While

at

the

site,

they

were

able

to

confirm

some

of

Cottrill’s claims, including the layout of the property (dkt. nos.
71-3; 77-12 at 7), and the presence of a hole matching the
description she had provided. (Dkt. No. 77-6 at 5, 9). Excavation
in the area of the hole revealed a bullet and possible presence of
lime. Although they found no body, Dr. Owsley’s initial indications
confirmed that human remains had been present in the hole at some

8

According to Starcher, additional information pointed to
Seth’s involvement. Multiple people confirmed that Beach and Seth
were close companions. Several people also told law enforcement
that Seth had made comments about having killed Beach. One of those
was Sara Douvres, Beach’s girlfriend at the time of his
disappearance. When Deputy Cole interviewed her, Douvres told him
Seth had stated he had “taken care of David Beach permanently,
because David Beach stole from him.” (Dkt. No. 71-3 at 12). Deputy
Cole also interviewed Anna Sullo, who claimed Seth had told her
that he had killed Beach. Id. Sullo further provided Deputy Cole
with the names of other people who claimed to have heard Seth say
that he had killed Beach. Id.
9

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
point.9 Finally, officers recovered a gun in the Denmark home
matching Cottrill’s description of the murder weapon.10
Based on the totality of the information known to him at that
time, Starcher filled out a criminal complaint against Denmark,
charging her with aiding and abetting in the kidnaping of Beach.
(Dkt. No. 77-1).11 He presented his complaint to a local magistrate
on

March

12,

2010.

After

reviewing

the

information

in

the

complaint, the magistrate determined that there was probable cause
to arrest Denmark, and issued a warrant for her arrest. (Dkt. No.
77-6 at 25). Starcher arrested Denmark later that day.12 She was
9

After taking samples with him, Dr. Owsley later verified his
initial findings and relayed that information to Starcher via
telephone sometime between February 23, 2010, and March 31, 2010.
(Dkt. No. 77-6 at 9).
10

The weapon was not found in the white plastic pipe where
Cottrill claimed Seth hid it. In her statement, Cottrill predicted,
that, based on the family’s history, they would likely move the
gun. (Dkt. No. 77-12 at 14).
11

A criminal complaint is a sworn document that serves as the
officer’s affidavit for purposes of obtaining a warrant. For
purposes of this Memorandum Opinion and Order, the terms “criminal
complaint” and “affidavit” are interchangeable.
12

In her brief, Denmark makes multiple references to the
roughly forty-five minute, un-Mirandized conversation between
Starcher and her while he was transporting her to the station
following her arrest. Indeed, a recording of the conversation is
attached to Denmark’s response to Starcher’s motion for summary
judgment. See Dkt. Nos. 77 and 82. For reasons discussed later in
this memorandum opinion, however, any conversations that occurred
after Starcher sought the warrant are not relevant.
10

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
arraigned via video the following day and, on March 18, 2010,
waived her preliminary hearing.
Denmark remained incarcerated from March 12, 2010, until she
was able to post a $100,000 bond on June 10, 2010. (Dkt. No. 77 at
10). Thereafter, the circuit court placed her on home confinement,
but forbade her from residing with her husband. (Dkt. No. 77 at
10). Around September 27, 2010, the court released Denmark from
home confinement, but still barred any contact with her husband.
(Dkt. No. 77 at 10). Finally, on April 11, 2011, the court
dismissed the charges against Denmark without prejudice. (Dkt. No.
77 at 11).
Less than a month later, on May 3, 2011, an arrest warrant was
issued for Seth, who was then incarcerated on an unrelated state
criminal charge.13 (Dkt. Nos. 77 at 11; 77-6 at 12). Almost two
years

later,

on

April

17,

2013,

Seth

signed

a

written

plea

agreement, in which he agreed to plead no contest to second degree
murder regarding the killing of Beach. (Dkt. No. 71-10). Notably,
the written plea agreement stated, in pertinent part:

13

Seth’s incarceration perhaps allowed Cottrill to feel safe
enough to finally come forward. In her statement, she made it clear
that she was worried about retribution by Seth: “So if I do this
there’s no way he can get to me and my daughter?” (Dkt. No. 77-12
at 3).
11

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
[T]he State agrees not to prosecute any crimes, felonies
or misdemeanors, against William Anthony Denmark (the
Defendant’s Father), Jackie L. Denmark (the Defendant’s
Mother), and Arneil Denmark Parsons (the Defendant’s
sister) for the following:
a.
The death and/or disappearance of David Wayne
Beech.
. . .
c.

Any crimes relating to Veronica "Nikki"
Cottrell occurring prior to the entry of this
plea agreement.

(Dkt. No. 71-10 at 6).14 In the agreement Seth also acknowledged
that

“no

person

has

used

any

threats,

force,

pressure,

or

intimidation to get him to plead no contest . . . .” (Dkt. No. 7710 at 5).
B.

Procedural Background
On March 31, 2014, pursuant to 42 U.S.C. § 1983, Denmark filed

suit against Starcher in his official capacity, alleging that,
based on Starcher’s alleged abuse of process, he had violated her
Fourth, Fifth, and Fourteenth amendment rights against unreasonable
search and seizure. (Dkt. No. 1 at 2).
Starcher moved to dismiss the complaint, because Denmark had

14

Plaintiff notes that this is the second plea agreement
between Seth and the State. The first contained similar language
exonerating plaintiff from any criminal act related the killing of
Beach. That first plea agreement was rejected by the judge,
however, and the language was different in the second plea
agreement. (Dkt. No. 77 at 11).
12

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
only sued him in his official capacity. (Dkt. No. 5). Denmark
opposed

the

motion

to

dismiss

and

also

moved

to

amend

her

complaint. (Dkt. No. 9). The Court granted her motion to amend, and
consequently dismissed Starcher’s motion to dismiss the original
complaint as moot. (Dkt. No. 11).

The amended complaint sued

Starcher in both his personal and official capacities; otherwise
the allegations of constitutional violations remained the same as
those in the original complaint. Id.
Starcher moved to dismiss the amended complaint, claiming that
(1) any claims against him in his official capacity failed because
they essentially were claims against the state, which is immune
from suit under § 1983; and (2) the statute of limitations had run
on any claims against him in his individual capacity. (Dkt. No.
15). Finding that Denmark’s § 1983 claim against Starcher in his
official capacity failed as a matter of law, the Court dismissed
that claim.

However, it allowed the § 1983 claim against Starcher

in his individual capacity to proceed, determining that it was not
time-barred, but related back to Denmark’s original complaint,
which had been timely filed. (Dkt. No. 22).
On January 8, 2016, both parties filed competing motions for
summary judgment. (Dkt. Nos. 70 and 72). Starcher contends that he

13

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] DENYING PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING THE CASE WITH PREJUDICE
is entitled to qualified immunity, as probable cause existed to
arrest Denmark, and his actions were objectively reasonable.

He

further asserts that Denmark’s punitive damages claim fails as a
matter of law. Starcher’s motion is fully briefed and ripe for
review.
Denmark’s motion for partial summary judgment is not so
straightforward. Although asserting that she is seeking partial
summary judgment based on a “discrete issue,” (dkt. No. 85 at 1),
in actuality, her motion encompasses the entirety of her complaint,
the gravamen of which is that Starcher had no probable cause to
arrest her and therefore is not entitled to qualified immunity.
II. LEGAL STANDARD
Summary
documents,

judgment

is

electronically

appropriate
stored

where

the

information,

“depositions,
affidavits

or

declarations, stipulations ..., admissions, interrogatory answers,
or other materials” establish that “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” Fed R. Civ. P. 56(a), (c)(1)(A). When ruling on a
motion for summary judgment, the Court reviews all the evidence “in
the light most favorable” to the nonmoving party. Providence Square
Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.2000).
14

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] DENYING PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING THE CASE WITH PREJUDICE
The Court must avoid weighing the evidence or determining the truth
and limit its inquiry solely to a determination of whether genuine
issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

and

of

establishing

the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the nonmoving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the
nonmoving party will not prevent the entry of summary judgment; the
evidence

must

be

such

that

a

rational

trier

of

fact

could

reasonably find for the nonmoving party. Id. at 248–52.
III. APPLICABLE LAW
In order to establish a claim under 42 U.S.C. § 1983, Denmark
must establish that, while acting under color of state law,
Starcher deprived her of rights, privileges or immunities secured
by the Constitution or laws of the United States. Crosby v. City of
Gastonia, 635 F.3d 634, 639 (4th Cir. 2011).

15

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] DENYING PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING THE CASE WITH PREJUDICE
In her complaint, Denmark alleges that Starcher “violated
[her] civil and constitutional rights . . . under the Fourth, Fifth
and Fourteenth Amendments, or each of these, along with violating
[Denmark’s] civil rights identified pursuant to 42 U.S.C. § 1983,
and finally amounted to an objectively unreasonable seizure of
[Denmark] by abusing criminal process or otherwise acting in a
malicious manner . . . .” (Dkt. No. 12 at 7).

Notwithstanding this

broad claim, in her response to Starcher’s motion for summary
judgment, Denmark emphasizes that “[t]he gravamen of [her] section
1983 claim against Cpl. Starcher is that he had no probable cause,
as set forth in defendants ‘Criminal Complaint’, to arrest her for
the felony charge of aiding and abetting in the kidnaping . . . .”
(Dkt. No. 77 at 13). Accordingly, Denmark’s § 1983 claim is “most
appropriately evaluated under the Fourth Amendment's right to be
free from unreasonable search and seizure.” Davis v. City of
Shinnston, 2013 WL 4805814, at *3 (N.D.W.Va. Sept. 3, 2013).
The Fourth Circuit recognizes two distinct causes of action
under § 1983 for violations of an individual’s Fourth Amendment
right against unreasonable seizure. See Brooks v. Winston–Salem, 85
F .3d 178, 181–82 (4th Cir. 1996) (citing Heck v. Humphrey, 512
U.S. 477, 484 (1994)).

The first is a cause of action for false or

16

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] DENYING PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING THE CASE WITH PREJUDICE
unlawful arrest or arrest in the absence of legal process. See
Wallace v. Kato, 549 U.S. 384, 389 (2007). An individual arrested
pursuant to a facially valid warrant, however, has no grounds to
support this cause of action. See, e.g., Bellamy v. Wells, 548
F.Supp .2d 234, 237 (W.D.Va. 2008); Porterfield v. Lott, 156 F.3d
563, 568 (4th Cir. 1998) (“a claim for false arrest may be
considered only when no arrest warrant has been obtained”); see
also Dorn v. Town of Prosperity, 375 F. App'x 284, 286 (4th Cir.
2010) (“The distinction between malicious prosecution and false
arrest ... is whether the arrest was made pursuant to a warrant.”).
The second cause of action lies when there is a violation of
an

individual’s

seizures

because

Fourth
he

or

Amendment
she

is

right

against

subjected

to

unreasonable
a

“malicious

prosecution” or an abuse of judicial process. See Brooks, 85 F.3d
at 182 (“[A]llegations that an arrest made pursuant to a warrant
was not supported by probable cause, or claims seeking damages for
the period after legal process issued, are analogous to the
common-law

tort

of

malicious

prosecution.”).

Fourth

Circuit

precedent, however, holds:
[T]here is no such thing as a Ԥ 1983 malicious
prosecution claim.’ What we termed a ‘malicious
prosecution’ claim in Brooks is simply a claim founded on
a Fourth Amendment seizure that incorporates elements of
17

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] DENYING PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING THE CASE WITH PREJUDICE
the
analogous
common
law
tort
of
malicious
prosecution—specifically, the requirement that the prior
proceeding terminate favorable to the plaintiff.
Snider v. Lee, 584 F.3d 193, 199 (4th Cir. 2009) (quoting Lambert
v. Williams, 223 F.3d 257, 262 (4th Cir. 2000)). Nevertheless, the
Fourth Circuit, as well as other lower courts, continue to identify
these claims as “malicious prosecution” claims. See Evans v.
Chalmers, 703 F.3d 636 (4th Cir. 2012); Martin v. Conner, 882
F.Supp.2d 820 (D.Md. 2012); Davis v. Back, No. 3:09CV557, 2010 WL
1779982, (E.D.Va. Apr. 29, 2010).
Here, Denmark does not dispute that she was arrested pursuant
to a facially valid warrant. Given that, she may only pursue a §
1983 claim for “malicious prosecution” under the Fourth Amendment.
In order to prevail on such a claim, “a plaintiff must allege that
the defendant (1) caused (2) a seizure of the plaintiff pursuant to
legal process unsupported by probable cause, and (3) criminal
proceedings terminated in plaintiff’s favor.” Chalmers, 703 F.3d at
647 (citing Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012)).
As explained below, Denmark’s allegations fall far short of the
mark.

18

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
IV. LEGAL ANALYSIS
A.

Denmark Cannot Establish
Terminated in her Favor

that

the

Criminal

Proceedings

Under Chalmers, in order to succeed on her § 1983 claim for
malicious prosecution, Denmark must establish that the criminal
proceedings terminated in her favor. Chalmers, 703 F.3d at 647; see
also Heck, 512 U.S. at 484 (noting that favorable termination is an
essential

element

of

a

§

1983

malicious

prosecution

claim).

Although the parties never addressed this issue in their briefs,
from the facts in the case it is clear that Denmark cannot
establish

that

the

criminal

proceedings

involving

Beach’s

disappearance and death terminated in her favor.
Courts have consistently held that “‘only terminations that
indicate that the accused is innocent ought to be considered
favorable.’” Uboh v. Reno, 141 F.3d 1000, 1004 (11th Cir. 1998)
(quoting

Hilfirty v. Shipman, 91 F.3d 573, 579 (3rd Cir.1996)).15

15

See also Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994)
(agreeing with the reasoning of the Second Circuit, holding “that
proceedings are terminated in favor of the accused only when their
final disposition indicates that the accused is not guilty”);
Singleton v. City of New York, 632 F.2d 185, 193 (2nd Cir. 1980)
(same); Evans v. Ball, 168 F.3d 856, 859 (5th Cir. 1999) (“The rule
in this circuit, then, is that proceedings terminate in favor of
the accused only when they affirmatively indicate that he is not
guilty.”); Malcomb v. McKean, 535 Fed. Appx. 184, 187 (3d Cir.
2013) (“[T]he prior disposition of the criminal case must show ‘the
19

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
Notably, “‘[t]he plaintiff has the burden of proving a favorable
termination.’” Wilkins v. DeReyes, 528 F.3d 790, 802-03 (10th Cir.
2008) (quoting Washington v. Summerville, 127 F.3d 552, 557 (7th
Cir. 1997)).
Cases that do not terminate in a manner indicating the
innocence of the defendant often fail to satisfy the favorable
termination requirement. For example, pre-trial diversion is “not
[a] termination in the defendant's favor, even if all criminal
charges are dismissed.” Evans v. Ball, 168 F.3d 856, 859 (5th Cir.
1999) (citing Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994)).
Nor is there a favorable termination “where the stated basis for
the dismissal of criminal charges has been ‘in the interests of
justice.’” Uboh, 141 F.3d at 1004 (citing Singer v. Fulton County
Sheriff, 63 F.3d 110, 116 (2nd Cir. 1995); Hygh v. Jacobs, 961 F.2d
359, 368 (2nd Cir. 1992)).
Multiple courts have addressed whether a prosecutor’s decision
to abandon criminal charges against a defendant equates to a
favorable

termination

for

purpose

of

maintaining

a

malicious

innocence of the accused.’” (quoting Heck, 512 U.S. at 484));
Ohnemus v. Thompson, 594 Fed. Appx. 864, 867 (6th Cir. 2014) (“The
termination must go to the merits of the accused's professed
innocence for the dismissal to be ‘favorable’ to him. (citation
omitted)).
20

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
prosecution claim. “In the civil malicious prosecution context, the
majority rule is that a criminal proceeding has been terminated in
favor of the defendant when a prosecutor formally abandons the
proceedings

via

a

nolle

prosecution

for

reasons

prosequi,
not

unless

indicative

of

he

abandons

the

the

defendant's

innocence.” Summerville, 127 F.3d at 557. Nevertheless, “not all
cases where the prosecutor abandons criminal charges are considered
to have terminated favorably." Donahue v. Gavin, 280 F.3d 371, 383
(3d

Cir.

2002)

(citing

Hilfirty,

91

F.3d

at

579).

Indeed,

abandonment of a prosecution is only a favorable termination “when
[its] final disposition is such as to indicate the innocence of the
accused.” Donahue, 280 F.3d at 383.
In the context of abandoned charges, “[t]he plaintiff meets
[her] burden of proof only when [s]he establishes that the nolle
prosequi was entered for reasons consistent with [her] innocence.”
Summerville, 127 F.3d at 557. “The circumstances surrounding the
cessation of the criminal proceedings must compel an inference that
reasonable

grounds

to

pursue

the

criminal

prosecution

were

lacking.” Summerville, 127 F.3d at 557 (citation omitted). Some
courts have gone so far as to declare that “a § 1983 malicious
prosecution plaintiff must be innocent of the crime charged in the

21

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
underlying

prosecution.”

Donahue,

280

F.3d

at

383

(internal

quotations omitted).
Consequently,

“bare

[abandonment]

without

more

is

not

indicative of innocence.” Wilkins, 528 F.3d at 803 (internal
quotations and citations omitted).

The Court “‘must look past the

form or title of the disposition and examine the circumstances
surrounding the entry of the nolle prosequi.’” Id. (quoting Logan
v. Caterpillar, Inc., 246 F.3d 912, 925 (7th Cir. 2001)).
Denmark has failed to meet her burden of establishing that the
prosecutor abandoned her prosecution for reasons consistent with
her innocence. Her complaint simply notes that the circuit court
judge dismissed her charges without prejudice. The dismissal order
(dkt. no. 71-9 at 2) notes that Denmark was released pursuant
W. Va. Code § 62-2-12, which provides:
A person in jail, on a criminal charge, shall be
discharged from imprisonment if he be not indicted before
the end of the second term of the court, at which he is
held to answer, unless it appear to the court that
material witnesses for the State have been enticed or
kept away, or are prevented from attendance by sickness
or inevitable accident, and except also that, when a
person in jail, on a charge of having committed an
indictable offense, is not indicted by reason of his
insanity at the time of committing the act, the grand
jury shall certify that fact to the court; whereupon the
court may order him to be sent to a state hospital for
the insane, or to be discharged.

22

to

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
Both parties stipulated that Denmark “has been in a bound over
status through more than two full court terms and not indicted and
that this delay has not been caused by any of the statutory
exceptions.” (Dkt. No. 71-9 at 2). Based on this, the court granted
the motion and dismissed the case without prejudice.
This hardly suffices to meet Denmark’s burden. First, a
dismissal without prejudice pursuant to the state statute differs
from a unilateral decision by a prosecutor to abandon criminal
charges. Moreover, a dismissal without prejudice cannot possibly
speak to Denmark’s innocence.16 The Court therefore is left to guess
as to why Denmark was not indicted during the two terms of court.
It need not speculate, however, because the burden is on Denmark to
provide evidence that the criminal proceedings terminated in her
favor due either to lack of evidence to prosecute or her actual
innocence. This she has failed to do.

Accordingly, as a matter of

law, the Court concludes that Denmark’s malicious prosecution claim
fails

because

she

has

not

established

that

the

prosecution

terminated in her favor, an essential element of a § 1983 malicious

16

Notably, Denmark’ complaint alleges that, even after the
criminal charges were dismissed without prejudice, she was under
“constant threat of a subsequent arrest and detention,” until the
charges were dropped with prejudice pursuant to the plea agreement
with her son, Seth. (Dkt. No. 12 at 6).
23

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
prosecution claim. See Chalmers, 703 F.3d at 647; Heck, 512 U.S. at
484.
B.

Starcher’s Motion for Summary Judgment
Turning to the arguments actually briefed by the parties,

Starcher first contends that there was probable cause to support
his

application

for

the

arrest

warrant,

constitutional rights were not violated.

and

that

Denmark’s

He further argues that,

even if probable cause was lacking, he is entitled to qualified
immunity because his application for the warrant was objectively
reasonable.
Under the defense of qualified immunity, individual officials
performing discretionary functions are immune from liability for
civil damages insofar as their conduct does not violate “clearly
established

statutory

or

constitutional

reasonable person would have known.”

rights

of

which

a

Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982); Covey v. Assessor of Ohio Cty., 777 F.3d 186,
195 (4th Cir. 2015). The qualified immunity doctrine “balances two
important interests—the need to hold public officials accountable
when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223
(2009).
24

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
“Qualified immunity is an entitlement not to stand trial or
face the other burdens of litigation.” Willingham v. Crooke, 412
F.3d 553, 558-59 (4th Cir. 2005) (internal quotations omitted).
“Ordinarily, the question of qualified immunity should be decided
at the summary judgment stage.” Id. at 558-59 (citations omitted).
Moreover, “[a]t the summary judgment stage, once we have viewed the
evidence in the light most favorable to the nonmovant, the question
of whether the officer’s actions were reasonable is a question of
pure law.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011)
(citing Scott, 550 U.S. at 381 n. 8) (en banc).
“Qualified

immunity

protects

officers

who

commit

constitutional violations but who, in light of clearly established
law, could reasonably believe that their actions were lawful.”
Estate of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810
F.3d 892, 898 (4th Cir. 2016) (quoting Henry, 652 F.3d at 531).
“The qualified immunity standard ‘gives ample room for mistaken
judgments’ by protecting ‘all but the plainly incompetent or those
who knowingly violate the law.’” Hunter v. Bryant, 502 U.S. 224,
229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Society forgives officers for reasonable errors because “‘officials
should not err always on the side of caution’ for fear of being
sued.” Id. (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)).
25

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
Finally, “[t]he protection of qualified immunity applies
regardless of whether the government official’s error is ‘a mistake
of law, a mistake of fact, or a mistake based on mixed questions of
law and fact.’” Pearson, 555 U.S. at 231 (quoting Groh v. Ramirez,
540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)). Indeed,
“[q]ualified immunity is meant to protect against liability for
‘bad guesses in gray areas.’” Bellotte v. Edwards, 629 F.3d 415,
424 (4th Cir. 2011) (quoting Maciariello v. Sumner, 973 F.2d 295,
298 (4th Cir. 1992)).
In Saucier v. Katz, the Supreme Court of the United States
laid out a two-step sequential analysis for courts to apply when
determining whether an official is entitled to qualified immunity.
533 U.S. 194, 200-01 (2001). The first part of the analysis asks
whether the alleged facts, when taken in the light most favorable
to the injured party, establish that the conduct at issue violated
a constitutional right. Id. at 201. The second question is “whether
the right was clearly established.” Id. at 201.
In Pearson v. Callahan, the Supreme Court concluded that the
mandatory sequential aspect of Saucier was unnecessarily rigid.
The judges of the district courts and the courts of
appeals should be permitted to exercise their sound
discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in
26

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
light of the circumstances in the particular case at
hand.
Pearson, 555 U.S. at 236. Accordingly, courts have discretion to
determine which prong to address first; a defendant meeting either
prong is entitled to summary judgment. Id.
1)

Starcher is Entitled to Qualified Immunity Because his
Application for the Warrant was Objectively Reasonable

Despite Denmark’s assertions otherwise, the facts, when viewed
in the light most favorable to her, establish that Starcher’s
conduct did not violate any of Denmark’s constitutional rights.
Clearly, the “Fourth Amendment prohibits law enforcement from
making unreasonable seizures, and seizure of an individual effected
without probable cause is unreasonable.” Miller v. Prince George’s
Cty. Md., 475 F.3d 621, 627 (2007) (quotations omitted). Denmark
contends that her seizure was unreasonable because it stemmed from
a warrant based on Starcher’s dishonest, or at least misleading,
criminal complaint.
In order to succeed on this claim, Denmark must “prove that
[Starcher] deliberately or with a reckless disregard for the truth
made material false statements in his affidavit, or omitted from
that affidavit material facts with the intent to make, or with
reckless disregard of whether they thereby made, the affidavit

27

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
misleading.” Miller, 475 F.3d at 627 (internal quotations and
citations omitted). Yet, “a plaintiff’s ‘allegations of negligence
or innocent mistake’ by a police officer will not provide a basis
for a constitutional violation.” Id. (quoting Franks v. Delaware,
438 U.S. 154 (1978)).
In order to establish reckless disregard, Denmark must prove
that Starcher was highly aware his statement was probably false;
that is, in light of the evidence, he “must have entertained
serious doubts as to the truth of his statements or had obvious
reasons to doubt the accuracy of the information he reported.” Id.
(quoting Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000)). To
establish reckless disregard by omission, however, Denmark must
demonstrate that Starcher “failed to inform the judicial officer of
facts [he] knew would negate probable cause.” Id. (quotation
omitted).
Furthermore, in order to reach the level of a constitutional
violation, any false statements or omissions must be “material.”
See id. at 628. Determining materiality requires the court to
“excise the offending inaccuracies and insert the facts recklessly
omitted, and then determine whether or not the ‘corrected’ warrant
affidavit would establish probable cause.” Id. (citing Wilson, 212

28

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
F.3d at 789. Here, if probable cause still exists after the court
“corrects” the affidavit, Starcher cannot be held liable. Id.
a.

False Statements or Omissions

Nowhere does Denmark’s complaint allege that the statements
contained in Starcher’s criminal complaint were deliberately false,
intentionally misleading, or presented with reckless disregard as
to the statement’s veracity. (Dkt. No. 12 at 5). Rather, she
repeatedly claims that Starcher sought the warrant solely “to
accomplish the collateral purpose/objective” of pressuring Seth
into admitting his involvement with Beach’s disappearance.17 Id. at
¶¶ 16, 23, 24, 25; see also Dkt. No. 7 at 1.
In her response to Starcher’s motion, Denmark specifies the
only facts alleged in the criminal complaint that might support
probable cause, and then discusses why they fail to do so.
1)

“[A]fter
the
hole
was
dug,
the
defendant
photographed William Seth Denmark and David Wayne
Beach as they sprayed mud off of each other.”

According to Denmark, this statement establishes nothing more
than her proximity to the boys. (Dkt. No. 77 at 15). That is

17

The Court need not address the propriety of using Denmark’s
arrest for a “collateral objective/purpose” because Denmark did not
brief how that issue might be relevant to the issue of whether
probable cause existed to apply for the warrant.
29

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
correct, but it also could confirm that Denmark knew the boys had
in fact dug a hole. Nonetheless, the statement is not false or
misleading, and it is hardly material.
2)

“The witness further stated that the defendant was
spoken to by William Seth Denmark and commented by
having a negative reaction to the statement made by
William Seth Denmark.”

According to Denmark, this statement is too vague, lacking
even the actual words used or a description of the context, and
leaves the magistrate to speculate. (Dkt. No. 77 at 15). Again,
there is no assertion that this is a false or misleading statement.
Further, the magistrate was entitled to use this information to
draw

reasonable

inferences

based

on

the

totality

of

the

circumstances.
3)

“The assistance was being demanded by a display of
a pistol [by William Seth Denmark] and an order for
Veronica Cottrell to obtain a flashlight. The
defendant [Jackie Denmark] made a statement that
Veronica Cottrell should not be involved. Veronica
Cottrell was then ordered by William Seth Denmark,
to go with him and assist him.”

According

to

Denmark,

this

statement

“should

clearly

communicate the fact that Jackie Denmark was attempting to shield
Veronica Cottrell from possibly viewing a horrific crime which she
may have suspected her son may have committed. The same crime which
she previously had sought to stop her son from committing.” (Dkt.
No. 77 at 15).
30

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
Denmark never asserts that this statement is false. Rather,
she contends that, because the magistrate was left to speculate as
to the level of her involvement, it is misleading. But the fact
that a statement allows a magistrate to draw reasonable inferences
does not make it purposefully misleading. In point of fact, as even
Denmark acknowledges, the statement “clearly communicates” what
Cottrill saw and understood to be happening as she recounted it to
the

deputies.

Starcher

and

the

magistrate

certainly

could

understand the same thing to have happened based on the totality of
the circumstances. See

Illinois v. Gates, 462 U.S. 213, 238

(1983).
4)

“On February 23, 2010 this officer [sic], was
present when a search was conducted of the Denmark
residence and surrounding property, located along
Beach Road in Calhoun County. All information
obtained from Veronica Cottrell (Nikki) on February
2, 2010 was validated by the evidence found at the
Denmark residence.”

The crux of Denmark’s objection to this statement is that
Starcher did not validate all of the information he obtained from
Cottrill. (Dkt. No. 77 at 16). Specifically, she notes (1) the gun
that was allegedly hidden in the plastic pipe was not actually
found there, and (2) no forensic evidence “submitted” pursuant to
the search was available to Starcher on the date that he sought and

31

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
executed the warrant for Denmark’s arrest. Finally, Denmark avers
that there are no facts alleged that establish a kidnaping, or that
she was an accessory before or after any kidnaping.
Putting aside whether the word “all” could be perceived as
misleading, the more pertinent question, which the Court will
address

later

in

this

opinion,

is

whether

the

statement

is

material.
5)

“David Wayne Beach, III has yet to be located.”

Denmark asserts that, if Cottrill’s statement is credible,
Starcher had to believe that Beach was dead. Since no facts in the
complaint alleged a kidnaping, Denmark contends that she could not
be an accessory before or after a nonexistent kidnaping. (Dkt. No.
77 at 16).
The

totality

of

the

allegations

in

Starcher’s

criminal

complaint clearly indicate his belief that Beach had been murdered,
not kidnaped. The statement that Beach “has yet to be located,”
thus, could be viewed as misleading, any confusion due solely to
Starcher’s decision to cite the kidnaping statute rather than the
murder statute.
6)

“Through investigation it has been learned that the
defendant [Jackie Denmark] knows the location of
David Wayne Beach and that the defendant is an
active participant in concealing the whereabouts of
David Wayne Beach, III.”
32

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
Denmark claims that this statement is false because, at the
time of the warrant, there was no evidence that she knew the
location of Beach or his remains. (Dkt. No. 77 at 16). Denmark
points to Cottrill’s allegations that Seth and his father had moved
Beach’s body and burned it. She reasons that, even if at some early
point she had known about Beach’s murder on the property and where
his body was, as of March 12, 2012, when Starcher arrested her, she
no longer knew where his remains were.
The

Court

agrees

that

this

statement

is

false,

whether

negligently or intentionally so, and could very well have misled
the magistrate. While it is possible that Denmark learned of the
location of Beach’s remains from her husband or son, Starcher had
no evidence to support such an assertion.
b.
As

the

statements

Materialty
previous
in

discussion

Starcher’s

establishes,

criminal

complaint

there
that

are

two

could

be

characterized as either false or misleading. Whether either is
material, however, is another matter. Id. (citing Wilson, 212 F.3d
at 789.
In pertinent part, Starcher’s complaint alleged:
1)

“On February 23, 2010 this officer, was present when a
search was conducted of the Denmark residence and
33

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
surrounding property, located along Beach Road in Calhoun
County. All information obtained from Veronica Cottrell
(Nikki) on February 2, 2010 was validated by the evidence
found at the Denmark residence.”
Excising

“all”

from

this

statement

establishes

the

immateriality of the word. The statement that remains, claiming
that

“information

obtained

from

Veronica

Cottrell

(Nikki)

on

February 2, 2010 was validated by the evidence found at the Denmark
residence,”
generally

is
not

corroboration

a

true

statement.

established
through

Although

solely

police

by

efforts

a
lends

probable

cause

witness’s
those

is

claims,

statements

substantially more weight in the probable cause analysis. See
Gates, 462 U.S. 213, 241-45. (“It is enough, for purposes of
assessing probable cause, that corroboration through other sources
of information reduced the chances of a reckless or prevaricating
tale,

thus

providing

a

substantial

basis

for

crediting

the

hearsay.” (internal quotations omitted)).
Further, the fact that Cottrill was correct about some of her
claims strengthened her veracity, lending greater credence to her
other

statements.

Id.

Gates,

462

U.S.

at

244

(“‘Because

an

informant is right about some things, he is more probably right
about other facts . . . .’” (quoting Spinelli v. United States, 393
U.S. 410 (1969))). In other words, the fact that Starcher was able
34

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
to corroborate some of Cottrill’s statements bolstered his belief
in her other claims. Accordingly, even when “all” is excised, the
criminal complaint still provides probable cause that Denmark
committed a crime.
2)

“Through investigation it has been learned that the
defendant [Jackie Denmark] knows the location of David
Wayne Beach and that the defendant is an active
participant in concealing the whereabouts of David Wayne
Beach, III.”

This statement also is not material. Denmark contends that she
could not possibly have concealed the whereabouts of Beach’s
remains because she had no idea where they were after Seth and his
father moved them. Nevertheless, even when this entire statement is
removed

from

the

criminal

complaint,

sufficient

evidence

of

probable cause that Denmark committed a crime remains. Indeed,
Starcher provided enough evidence in his criminal complaint to
establish probable cause that Denmark aided and abetted Seth in the
crime of murder. Whether, at some later time, she no longer knew
the location of Beach’s remains does not negate her culpability.
Accordingly, even when the entirety of this statement is excised,
the criminal complaint still provides probable cause that Denmark
committed a crime.

35

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
c.

Starcher’s Decision to Use the Kidnaping Statute
Rather than the Murder Statute

Starcher’s criminal complaint inexplicably cites the statute
applicable to aiding and abetting kidnaping, as well as its
relevant statutory language. According to Denmark, as no probable
cause existed to support an aiding and abetting kidnaping charge,
there was no probable cause to arrest her. (Dkt. No. 77-1).
Why Starcher, the prosecutor, and the magistrate, failed to
cite

the

relevant

statute

of

aiding

and

abetting

murder

is

difficult to understand. Nevertheless, such a “‘technical error
does not automatically invalidate the warrant,’” or Starcher’s
belief that probable cause existed to arrest Denmark. U.S. v. Cox,
553 Fed. Appx. 123, 128 (3rd Cir. 2014) (quoting United States v.
Carter, 756 F.2d 310, 313 (3d Cir. 1985)); see also U.S. v.
English, 400 F.3d 273, 276 (5th Cir. 2005). Ultimately, when a
court considers mistakes in warrants “[t]he true inquiry ... is ...
whether there has been such a variance as to affect the substantial
rights of the accused.” Cox, 553 Fed. Appx. at 128 (internal
quotation and citation omitted).
While there is no case on all fours with the facts here,
several are instructive.

In U.S. v. Meek, the Ninth Circuit Court

of Appeals considered a case in which the officer’s affidavit cited
36

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
a statute that differed from that in the actual warrant. 366 F.3d
705, 711 (9th Cir. 2004). The court upheld the validity of the
warrant, stating:
Because the affidavit established probable cause as to a
violation of California law and the items sought under
the warrant corresponded to that probable cause
determination, the statutory variance in the affidavit is
not fatal to the warrant’s validity.
Id. (emphasis added) (citing United States v. Koyomejian, 970 F.2d
536, 548 (9th Cir. 1992) (Kozinski, J., concurring) (“I am aware of
no constitutional requirement that an applicant for a warrant
specify, and the judge determine, the precise statute violated; all
authority is to the contrary.”).
In Skoog v. Clackamas County, 469 F.3d 1221, 1231 (9th Cir.
2006), the Ninth Circuit reaffirmed its reasoning in Meek, There,
it again considered a discrepancy between the statute listed in the
officer’s affidavit and the one cited in the actual warrant,
holding: “[A]‘statutory variance in the affidavit is not fatal to
the warrant’s validity’” as long as “‘the affidavit established
probable

cause

[]

and

the

items

sought

under

the

warrant

corresponded to that probable cause determination.’” Id. (brackets
in original) (quoting Meek, 366 F.3d at 712).
In

Hendricks v. Sheriff, Collier County, Florida, 492 Fed.

Appx. 90, 93 (11th Cir. 2012), the Eleventh Circuit Court of
37

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
Appeals addressed a case involving defendants charged with two
crimes,

“robbery - armed with other weapon” and “felony battery.”

The defendants claimed that their arrests were not supported by
probable cause because there was “no evidence of a serious harm
done to either victim that would rise to the level of felony
battery.” Id. at 94.

The court, however, concluded that the

officer had probable cause to arrest for some offense:
. . . Appellants’ arguments make no difference to a
probable cause analysis. An officer’s subjective reliance
on an offense for which no probable cause exists does not
make an arrest faulty where there is actually probable
cause to support some other offense.
Hendricks,

492

Fed.

Appx.

at

94

(emphasis

added)

(internal

quotations and citations omitted).
In the instant case, probable cause existed that Denmark had
broken a law, even if not the one Starcher cited in his criminal
complaint. There was sufficient evidence to find probable cause for
a crime — aiding and abetting murder — and the statements contained
in the criminal complaint clearly corresponded to that crime.
Indeed, nothing in the criminal complaint suggested any crime other
than the murder of Beach. This was abundantly clear, even to the
magistrate.
Despite citing the statute for aiding and abetting kidnaping
rather than for aiding and abetting murder, there was not “such a
38

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
variance as to affect the substantial rights of [Denmark]” in
Starcher’s criminal complaint. Cox, 553 Fed. Appx. at 128. Both
Denmark and her attorney had access to the criminal complaint and
arrest warrant; they also were on notice of the specifics of the
accusations against her, and, despite being in a position to defend
against them, did not object.
Indeed, although Denmark had the opportunity to challenge the
validity of the criminal complaint at her preliminary hearing, she
chose to waive that hearing.18 Furthermore, at no point, whether
during her incarceration, home confinement, or release on bond, did
Denmark ever seek a Franks hearing.19
At the bottom, facts establish that probable cause existed to
arrest Denmark for a crime, even if not the specific crime cited in
the criminal complaint.

18

Current counsel for Denmark, who was not her attorney during
the criminal proceedings, characterizes the waiver of the
preliminary hearing as “unexplainable.” (Dkt. No. 77 at 10).
19

“The purpose of a Franks hearing is to determine whether, but
for the inclusion of intentional or reckless misstatements by the
affiant, an affidavit would not support a finding of probable
cause.” U.S. v. Williams, 526 Fed. Appx. 312, 314 (4th Cir. 2013)
(citation omitted); see also, Gomez v. Atkins, 296 F.3d 253, 265
(4th Cir. 2002) (noting that a “probable-cause hearing, however,
afford[s] [a defendant] a full opportunity to litigate, in an
adversary proceeding before an impartial judge, the issue of
probable cause”).
39

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
d.

Aiding and Abetting

The State of West Virginia bifurcates the act of aiding and
abetting, also known as being an accessory in the commission of a
crime, into two categories:
At common law the parties to a felony were divided into
principals and accessories. The principals were divided
into: (1) principals in the first degree who actually
perpetrated the act; and, (2) principals in the second
degree, known under early common law analysis as
accessories at the fact, who were actually or
constructively present at the scene of the crime and who
aided or abetted directly or indirectly. The accessories
were divided into: (A) accessories before the fact who
conspired with the perpetrator but were not present
during the commission of the crime; and, (B) accessories
after the fact who rendered assistance after the crime
was completed.
State v. Bradford, 484 S.E.2d 221, 228-29 (W.Va. 1997) (quoting
State v. Perry, 273 S.E.2d 346, 349 (W.Va. 1980)). Furthermore,
“[t]hree things are requisite to constitute one an accessory after
the fact: (1) The felony must be completed; (2) he must know that
the felon is guilty; and (3) he must receive, relieve, comfort or
assist

him.”

Id.

at

229

(quoting

1A

M.J.

Accomplices

and

Accessories § 5 (1993)).
Importantly, a defendant’s “presen[ce] at the time and place
the crime was committed is generally acknowledged to be a factor to
be considered, . . . along with other circumstances, such as the

40

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
defendant's association with or relation to the perpetrator and his
conduct before and after the commission of the crime.” Id. at 823
(citations omitted). Even “[a]n act of relatively slight importance
may render the defendant criminally liable as a participant in the
offense.” Id.
Denmark could be considered an accessory before the fact based
on the allegations in the criminal complaint.

Nevertheless, based

on his allegations, it is clear that Starcher believed Denmark was
at least an accessory after the fact. He had probable cause to
believe

she

had

been

well

aware

of

what

was

happening,

had

exercised willful ignorance, had supported Seth through her silence
and inaction, and had assisted him by directing him to hide the
gun.
Denmark also knew the boys had been up the hill, digging a
hole. She was aware that Seth had taken the gun from her bedroom,
and knew, because he had told her so, that he intended to shoot
Beach.20 She became distraught when she heard the gunshots. She saw
Seth return, covered in mud, with Beach nowhere to be seen. She

20

Although Denmark did say “no, no, no,” this was more a sign
of her exasperation, and not an affirmative step to stop Seth’s
actions. There is no evidence that she ever attempted to physically
prevent, scold, warn, or even threaten to call anyone in an effort
to prevent him from acting.
41

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
observed Seth threaten Cottrill with a gun when she refused to
accompany him back up the hill to hold a flashlight. When Seth and
Cottrill returned to the house after burying Beach, she locked
herself in her room, stating “I don’t want to see.”21 Finally, after
someone came to the house asking about Beach, she told her son to
get rid of the gun. She then remained silent about all these events
for over four years.
In the Court’s opinion, Starcher acted in an objectively
reasonable manner when he determined that there was probable cause
to believe Denmark had aided and abetted Seth in the crime of
murder.

She did so through her acquiescence in his actions, her

failure

to

act

in

any

way

to

prevent

Beach’s

murder,

her

instructions to him to get rid of the weapon, and her continued
silence after the fact.
e.

Probable Cause Supported Starcher’s
Complaint Seeking Denmark’s Arrest

Criminal

“‘[P]robable cause’ to justify an arrest means facts and
circumstances within the officer’s knowledge that are sufficient to
warrant

a

believing,

prudent

person,

in

circumstances

the

or

one

21

of

shown,

reasonable
that

the

caution,

in

suspect

has

In addition, Cottrill told Starcher that the grave site was
within eyesight of the house.
42

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
committed ... an offense.” Cahaly v. Larosa, 796 F.3d 399, 407 (4th
Cir. 2015) (quotation omitted). A court must look at the totality
of

the

circumstances

when

determining

whether

probable

cause

exists. Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002) (citing
United States v. Garcia, 848 F.2d 58, 59-60 (4th Cir. 1988)).
“[I]n the arrest context, the question is whether the totality
of the circumstances indicate to a reasonable person that a
‘suspect has committed, is committing, or is about to commit’ a
crime.” U.S. v. Humphries, 372 F.3d 653, 659 (4th Cir. 2004)
(quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). Probable
cause is a “commonsense, nontechnical concept[] that deal[s] with
‘the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.’”

Ornelas

v. U.S., 517 U.S. 690, 695 (1996) (quoting Gates, 462 U.S. at 231).
The officer need not possess enough evidence to support a
conviction; rather, there “need only be enough evidence to warrant
the belief of a reasonable officer that an offense has been or is
being committed.” Brown, 278 F.3d at 367-68 (citing Wong Sun v.
United States, 371 U.S. 471, 479 (1963)); see also Gates, 462 U.S.
at 231 (“[O]nly the probability, not a prima facie showing, of
criminal activity is the standard of probable cause.”). Not only

43

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
does an officer not need proof beyond a reasonable doubt, there
need not even be a preponderance of the evidence to support an
officer’s belief that probable cause exists. Humphries, 372 F.3d at
660. Indeed, the “probable-cause standard does not require that the
officer’s belief be more likely true than false.” Id. at 660
(citing United States v. Jones, 31 F.3d 1304, 1313 (4th Cir.
1994)).
Even when viewing the facts in the light most favorable to
Denmark, it is beyond argument that Starcher had an objectively
reasonable belief that she had committed a crime. This remains true
even after “correcting” Starcher’s criminal complaint to excise any
false or misleading statements. Starcher had the statement of
Cottrill, a young woman who knew the Denmark family intimately, and
he had no cause to believe that she was lying. In fact, he knew
that,

at

great

risk

to

herself,

she

had

come

forward

with

information on a case that had been cold for four years. Such risk
derived either from potential retribution from Seth, or by exposure
to possible criminal liability.22
Starcher was able to corroborate much, albeit not all, of
Cottrill’s claims during a search of the property. Specifically,

22

See supra n. 13.
44

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
officers located a large hole in the place where she had described
it, and, in that hole, found a bullet and evidence of human
remains.23 Further, officers found a gun in Denmark’s house matching
the description provided by Cottrill.
The totality of the circumstances establish the following: 1)
the close relationship involving Cottrill, Beach, Seth, and his
family; 2) the detailed statements of Cottrill, a witness with
personal knowledge; 3) statements of other witnesses that Seth had
confessed to them that he had killed Beach; 4) the weapon found in
the Denmark house matching the description of the murder weapon;
and 5) the large man-made hole located on the Denmark property,
precisely where Cottrill had indicated it would be, and containing
a bullet and human remains.

Based on all of this, Starcher was

objectively reasonable in determining that probable cause existed
to arrest Denmark, and therefore is entitled to qualified immunity.

23

To be clear, not everything that Starcher believed to be true
based on his investigation was specifically laid out in the
criminal complaint. For example, the initial claims of the
anthropologist were not included. Nonetheless, these factored into
his determination as to whether probable cause existed. Any of
Starcher’s omissions through lack of detail in the criminal
complaint do not weaken his probable cause finding. On the
contrary, most, if not all, of the omitted details further bolster
his finding of probable cause.
45

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 70] AND DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 72] AND
DISMISSING CASE WITH PREJUDICE
C.

Denmark’s Motion for Partial Summary Judgment
A careful review of Denmark’s motion for partial summary

judgment establishes that it is totally lacking in merit, and the
Court DENIES the motion.
CONCLUSION
Because Starcher’s conduct did not violate a constitutional
right as required under the first step of the Saucier analysis, he
is entitled to qualified immunity. Furthermore, Denmark has failed
to satisfy a necessary element of her claim, namely, that the
criminal proceedings terminated favorably to her. Accordingly, the
Court

GRANTS

Starcher’s

motion

for

summary

judgment,

DENIES

Denmark’s motion, and DISMISSES Denmark’s complaint WITH PREJUDICE.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this
Memorandum Opinion and Order to counsel of record and to enter a
separate judgment order.
DATED: March 22, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

46