This Opinion is Uncorrected and subject to revision by the court.
MILLER, Judge. Andrews, P. J., and Branch, J., concur.
Daniel Dixon filed suit against Justin Wayne Krause, a police officer with the Greenville Police Department, in his individual and official capacity, and the City of Greenville (the " City" ), raising federal and state claims for malicious prosecution and seeking attorney fees. The trial court granted summary judgment to Krause and the City, finding that the totality of the circumstances established probable cause to support the arrest, imprisonment, and prosecution of Dixon and, as a result, Dixon's claims failed as a matter of law. Dixon appeals, contending that the trial court erred in granting summary judgment because there were questions of fact as to whether probable cause existed to prosecute him on several offenses. We agree and reverse.
" On appeal from the grant of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law." (Footnote omitted.) McKissick v. S.O.A., Inc., 299 Ga.App. 772 (684 S.E.2d 24) (2009).
Construed in the light most favorable to Dixon, as the nonmovant, the evidence shows that at approximately 1:00 a.m. on July 16th, 2009, Krause, the sole officer on duty, was patrolling the area of Terrell Street in the City, located in Meriwether County. While patrolling, Krause observed a red motorcycle approaching. The motorcycle stopped at the intersection of Hill and Terrell Streets and remained there for about two minutes. As the motorcycle drove past him, Krause observed that the motorcycle's tag was displayed not on the rear of the bike as required, but on the side. Krause also observed that the driver was wearing a shirt and jeans and had a full helmet with a visor. Based on his observations of the driver's eyes and nose, Krause believed that the driver was black. Krause turned around and pursued the motorcycle to initiate a traffic stop.
When Krause activated his patrol lights, the motorcycle accelerated and headed toward Troup County. Krause then contacted dispatch and advised that he was in pursuit of a black male on a red motorcycle. Krause later reiterated to dispatch that the suspect was a black male and that he had gotten a good look at the driver of the motorcycle. During the chase, the motorcyclist drove at a rate in excess of 100 mph and passed another vehicle in a no-passing zone.
Soon after entering Troup County, Krause lost sight of the motorcycle. While Krause was searching the area, he encountered Troup County Deputy Sheriff Rick White, who had been notified through Troup County 911 radio traffic that officers were in pursuit of a black driver on a motorcycle coming into Troup County. The police officers waited near an elementary school at the intersection of Mountville Road and State Highway 109. While waiting, Krause and White heard radio traffic that the LaGrange police were chasing a motorcycle, and a few minutes later, Krause and White heard a motorcycle approaching from the LaGrange area at a high rate of speed. Both Krause and White anticipated that the motorcycle would be the same motorcycle that Krause had previously been chasing because a motorcycle involved in another police chase was heading in their direction and motorcycle chases are very rare.
Around the same time, Dixon was heading home after leaving his friend's house located about a mile away from the intersection of Mountville Road and Highway 109. Dixon had been at his friend's house from approximately 11 p.m. on July 15 to 1:30 a. m. on July 16, and did not go anywhere else during this time. Dixon, a white male, was wearing a light blue shirt, jeans and a black-and-white helmet.
Dixon's motorcycle stopped at the intersection where Krause and White were waiting, and turned right. At that point, Krause observed that Dixon's motorcycle had its registration tag displayed on its side. Krause then activated his patrol lights to initiate a traffic stop because of the tag placement, the color of Dixon's bike (silver, black, and red), and the fact that Dixon was wearing a helmet were characteristics that matched the first motorcycle he had been chasing. Dixon proceeded to drive a short distance down the road and stopped when he saw Krause's patrol lights. Krause then pulled in front of the motorcycle, ordered Dixon to turn off his motorcycle and get on the ground, and placed Dixon in handcuffs.
During the stop, Krause and White both noticed the smell of alcohol on Dixon. Krause asked Dixon for consent to an alcohol breath test and ...