Carter v. Prendergast

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

JOSHUA ROBINSON CARTER,

Plaintiff,

v. Case No. 5:22-cv-433-JA-PRL

MIKE PRENDERGAST, ETHAN

VANSCOY and DAVID MILLER,

Defendants.

ORDER

Plaintiff Joshua Carter was arrested during a traffic stop after a bag of

white powder found in his car tested positive for cocaine. The charge was later

dropped when more definitive lab testing failed to replicate that result. Carter—

who maintained from the start that the powder was laundry detergent—then

brought this suit against Citrus County Sheriff Mike Prendergast and the two

deputies who conducted the traffic stop, Ethan Vanscoy and David Miller, for

false arrest and malicious prosecution. Defendants now move for summary

judgment on all claims. (Doc. 15). Because the Deputies had probable cause to

arrest Carter, Defendants’ Motion will be granted.

I. BACKGROUND

The allegations in this case stem from a traffic stop that took place on the

evening of May 16, 2020. That night, Carter and his acquaintance Ira Young

were passing through Homosassa, Florida, when they were pulled over by

Deputy Vanscoy for driving without a functioning rear tag light in violation o:

section 316.221(2), Florida Statutes. (Carter Decl., Doc. 19-1, {| 3; Vanscoy Decl.

Doc. 14-1, { 7). As he approached the car window, Deputy Vanscoy says, he coulc

smell the “odor of cannabis” emanating from inside and noticed Carter’:

“nervous behavior,” prompting the deputy to ask for permission to search the

vehicle. (Vanscoy Decl. { 8). Carter consented to the search, and Deputy Vanscoy

returned to his cruiser to wait for assistance. (Id. § 9).1 There, he queried a

national crime database and discovered that Carter and Young had previously

been charged with crimes involving cannabis and cocaine, respectively. (Id. { 9).

A few minutes later, Deputy Miller arrived on scene and began searching

the car while Deputy Vanscoy stood by with Carter and Young. (Id. 10). During

the search, Deputy Miller discovered a burnt cannabis cigarette in the ashtray

and a small, unmarked sandwich bag filled with white powder in a pull-down

compartment next to the steering wheel. (Miller Decl., Doc. 14-2, § 12).2 Carter

confirmed that the bag of white powder belonged to him and stated that it was

prepackaged laundry soap from Spin City, a local laundromat. (Carter Decl.

1 Carter denies that he was exhibiting any nervous behavior during the traffic

stop but admits that he consented to the search of his vehicle. (Carter Decl. § 7).

2Deputy Miller also discovered a smaller, empty plastic baggie beneath the

driver's seat, which he described as the kind “commonly used to package illicit

narcotics for sale.” (Miller Decl. § 12).

{ 9). But when Deputy Miller tested the substance with an “agency issued Lynr

Peavey cocaine field presumptive kit” the swab “immediately turned blue,’

indicating the presence of cocaine. (Miller Decl. {| 12). Presented with the test

result, Carter acknowledged that the swab was blue but continued to insist that

the powder was laundry soap. (Traffic Stop Recording at 04:14-04:17; Carter

Decl. 9] 18, 16).3

Despite his repeated denials, the Deputies arrested Carter and

transported him to the Citrus County Jail, where he was charged with

trafficking approximately 162 grams of cocaine. (Id. {4 17-18). The next day,

Carter was released on a $2,500 bond with the felony charge still pending. (Id.

{| 19). That charge was eventually dropped when further testing by the Florida

Department of Law Enforcement failed to confirm that the substance was

cocaine. (/d. 20-21).

In October 2020, months after the State Attorney’s Office filed its nolle

prosequi, a different set of deputies retested the powder with the same kind of

agency-issued “Lynn Peavey” field-test kit used by Deputy Miller. (Smith Decl.,

Doc. 14-4, 11). Once again, the swab immediately turned blue, indicating the

presence of cocaine. (/d.).4 Deputy Miller, Deputy Vanscoy, and Deputy Smith

□□ Defendants have filed a flash drive containing an audio recording of Deputy

Miller’s conversation with Carter after the bag of white powder was found in his car.

4 The flash drive filed by Defendants also contains video footage of this retest.

(who led the re-testing) have each stated that this is the only time in □□□□

careers that a field-test kit has provided an apparently false positive result.

(Miller Decl. {| 17; Vanscoy Decl. § 18; Smith Decl. § 15).

On August 24, 2022, Carter filed this suit in state court against Deputy

Vanscoy, Deputy Miller, and Sheriff Prendergast. (Doc. 1-1). Defendants timely

removed the action to this Court, (Doc. 1), and Carter filed an Amended

Complaint shortly thereafter, (Doc. 11). The Amended Complaint lists nine

counts: false arrest and malicious persecution against the Deputies pursuant tc

42 U.S.C. § 19835 (Counts I-IV); false arrest under Florida common law against

Sheriff Prendergast (Count V); and malicious prosecution under Florida

common law against the Deputies (Counts VI & VII).* Defendants now move for

summary judgment on all counts.’

Il. LEGAL STANDARD

“The court shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

5 This statute provides for a cause of action against any person who, “under

color” of state law, deprives an individual of the “rights, privileges, or immunities

secured by the Constitution and laws [of the United States].” 42 U.S.C. § 1983.

6 The Amended Complaint also includes claims against the Deputies for false

arrest under Florida common law (Counts VIII & IX). Carter now “withdraws” those

claims, stating that they were “inadvertently included” in the Amended Complaint.

(Doc. 20 at 2 n.2).

7 Defendants have also filed a motion seeking to exclude certain evidence offered

by Carter in his Response to their Motion for Summary Judgment. (Doc. 22). Because

the Court is granting Defendants’ Motion for Summary Judgment, the Motion to

Exclude will be denied as moot.

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court must construe the

facts and all reasonable inferences therefrom in the light most favorable to the

nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, □□□

(2000). “However, [courts] draw these inferences only ‘to the extent supportable

by the record.” Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir. 2010) (quoting

Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)). “Thus, the requirement to view

the facts in the nonmoving party's favor extends to genuine disputes over

material facts and not where all that exists is ‘some metaphysical doubt as to

material facts.” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986)). “Essentially, the inquiry is ‘whether the evidence

presents a sufficient disagreement to require submission to the jury or whether

it is so one-sided that one party must prevail as a matter of law.” Sawyer v.

Southwest Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).

lil. DISCUSSION

The disposition of this case comes down to a single question: did the

Deputies have probable cause to arrest Carter on May 16, 2020? Despite

Carter’s arguments to the contrary, the answer to that question is undoubtedly

yes. Therefore, Defendants are entitled to summary judgment on all counts.8

8 With respect to the federal claims against them, Defendants also argue that

they are entitled to qualified immunity. Because the Court concludes that the Deputies

See Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998) (“[P]robable cause

constitutes an absolute bar to both [Florida] state and § 1983 claims alleging

false arrest.”); Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010)

(“[T]he existence of probable cause defeats a § 1983 malicious prosecutior

claim.”); Paez v. Mulvey, 915 F.3d 1276, 1292 (11th Cir. 2019) (“The absence o:

probable cause is a necessary element of common law malicious prosecution.’

(citing Miami-Dade Cnty. v. Asad, 78 So. 3d 660, 664 (Fla. 3d DCA 2012))).

“[T]he standard for determining the existence of probable cause is the

same under both Florida and federal law—whether ‘a reasonable [person] would

have believed [probable cause existed] had he known all of the facts known by

the officer.” Rankin, 133 F.3d at 1433 (quoting United States v. Ullrich, 580 F.2d

765, 769 (5th Cir. 1978)). “This standard is met when ‘the facts and

circumstances within the officer's knowledge, of which he or she has reasonably

trustworthy information, would cause a prudent person to believe, under the

circumstances shown, that the suspect has committed, is committing, or is about

to commit an offense.” Jd. (quoting Williamson v. Mills, 65 F.3d 155, 158 (11th

Cir. 1995)); see also Paez, 915 F.3d at 1285, 1292. Although probable cause

had actual probable cause to arrest and charge Carter with trafficking cocaine, it

necessarily follows that they had arguable probable cause as well. Defendants are thus

entitled to qualified immunity from Carter's federal claims. See Grider v. City of

Auburn, 618 F.3d 1240, 1257 (11th Cir. 2010) (“To receive qualified immunity, an

officer need not have actual probable cause, but only ‘arguable’ probable cause.”).

requires “more than mere suspicion,” it does not require “convincing proof.”

Bailey v. Bd. of Cnty. Comm'rs of Alachua Cnty., 956 F.3d 1112, 1120 (11th Cir.

1992). Indeed, while due process is meant to protect against extended periods ot

wrongful imprisonment, “[t]he Constitution does not guarantee that only the

guilty will be arrested.” Id. (quoting Baker v. McCollan, 443 U.S. 137, 145

(1979)).

Carter was arrested and charged with “trafficking in cocaine” in violation

of section 893.135(1)(b), Florida Statutes. According to that provision, “[a]ny

person who... is knowingly in actual or constructive possession of{] 28 grams

or more of cocaine . . . or of any mixture containing cocaine ... commits a felony

of the first degree.” § 893.135(1)(b), Fla. Stat. Carter does not dispute that he

was in possession of the bag of white powder found by Deputy Miller, nor does

he suggest that the contents of the bag weighed less than 28 grams. Instead,

Carter argues that the powder could not have provided probable cause for his

arrest and prosecution because it was not in fact cocaine. Defendants counter

that even though lab testing later revealed that the powder was not a controlled

substance, the positive field test provided the Deputies with probable cause to

arrest and charge Carter pending more definitive results.

Defendants are correct. Although the powdery substance seized by Deputy

Miller was not ultimately determined to be cocaine, “[p]robable cause is based

on what a reasonable officer would think at the time of arrest—not what they

could understand with the benefit of hindsight.” United States v. Leonard.

4 F.4th 1134, 1146 (11th Cir. 2021). Moreover, “probable cause requires only «

substantial chance of criminal activity, not certainty.” Id. Here, as in past cases

the Deputies were entitled to “rely on the [positive] test result” obtained on the

scene, even though that result was later refuted by further lab testing. Fincher

v. Monroe Cnty. Bd. of Comm'rs, No. 5:18-cv-00424-TES, 2020 WL 1518625, at

“9 (M.D. Ga. Mar. 30, 2020) (holding that police officers had probable cause tc

arrest the plaintiff after cotton candy found in her car falsely tested positive for

methamphetamine); see also Reddick v. Liehard, No. CV 616-051, 2017 WL

2789280, at *5 (S.D. Ga. June 27, 2017) (“There can be no doubt that if the [field]

test was conclusively positive [for the presence of cocaine], probable cause

existed.”);9 United States v. Jackson, No. 6:12—cr—202-Orl-36TBS, 2013 WL

784650, at *6 (M.D. Fla. Mar. 1, 2013) (“Once the white cake-like substance

discovered in Defendant's right front pocket field-tested positive for cocaine, the

officers clearly had probable cause to arrest Defendant.”); Kitchens v. King, No.

9 In his Response, Carter points to this language from Reddick and argues that

because the field test used by Deputy Miller provided only presumptive results—not

conclusive ones—the test could not be used to establish probable cause. (Doc. 20 at 18).

In context, however, it is clear that the court in Reddick is referring to “conclusive[]”

results as those that are not adequately disputed by the plaintiff. See 2017 WL

2789280, at “4 (“Defendant would add [to the other circumstances suggesting probable

cause] that he also field tested the white substance and determined that it was cocaine.

This fact, however, is disputed because of Plaintiff's testimony that she did not observe

‘the vial change colors.”). Unlike the plaintiff in Reddick, Carter has not adequately

disputed the test results obtained by Deputy Miller—as discussed further in the text

of this Order, infra.

5:05-CV-275 (WDO), 2006 WL 2982882, at *5 (M.D. Ga. Oct. 17, 2006) (holding

that the plaintiffs “arrest was based on probable cause because the field test

confirmed the substance found in his car was marijuana,” even though the

plaintiff suggested that the substance was actually tobacco residue and the

charge was later dropped).

Field test kits, of course, are not infallible—as this case demonstrates. But

“no case at any level, in any court, has established (clearly or otherwise) that

field drug tests cannot, because of possible false positives, support probable

cause. Brown v. Sirchie Acquisition Co., No. 1:16-CV-175-SCJ, 2017 WL

4082690, at *12 (N.D. Ga. Feb. 17, 2017). “Indeed, at least one court has held

quite the opposite—that the possibility of false positives do[es] not render field

tests insufficient to support probable cause.” Id. (citing McCabe v. Gonzales, No.

1:13-CV-00435-CWD, 2015 WL 5679735, at *8 (D. Idaho Sept. 25, 2015) (“The

fact that the field drug test could have produced a false positive, as [the plaintiff]

contends, is irrelevant; probable cause does not require certainty so long as an

officer reasonably believes that the substance in question is illegal.”)). In this

case, moreover, the Deputies had more than just a positive drug test: they knew

that both Carter and his passenger had been charged with drug crimes in the

past—including, in the case of the passenger, a crime involving cocaine—and

they found in Carter’s car not just a bag of white powder and a cannabis

cigarette! but also a smaller baggie “commonly used to package illicit narcotics

for sale.” (Miller Decl. {| 12). These facts, combined with the positive field test,

were more than sufficient to establish probable cause for Carter's arrest and

initial prosecution, dooming each of Carter’s claims against Defendants.

Carter's arguments to the contrary are unavailing. In one such argument,

for example, Carter objects that “Deputies Miller and Vanscoy failed to conduct

a minimal investigation and follow up on” Carter’s insistence that the bag of

white powder was actually laundry detergent from a local laundromat, despite

this information being “readily available and verifiable” at the laundromat

itself, which was open at the time of his arrest. (Doc. 20 at 6). Carter is correct

that “[a]n arresting officer is required to conduct a reasonable investigation to

establish probable cause,” Rankin, 133 F.8d at 1485, “especially where

[exculpatory] information is readily obtainable, or where the accused points out

10 Defendants argue that, even without the positive field test for cocaine,

Carter’s “actual or constructive possession of the cannabis cigarette gave deputies

probable cause to arrest [him]” for violating section 893.13(6)(b), Florida Statutes

(making it a “misdemeanor of the first degree” to possess “20 grams or less of

cannabis”), thus “defeat[ing] all claims against Sheriff Prendergast and Deputies

Miller and Vanscoy.” (Doc. 15 at 15). Defendants are correct that Carter’s possession

of the cannabis cigarette is enough to defeat his claims for false arrest. See Lee v.

Ferraro, 284 F.3d 1188, 1196 (11th Cir. 2002) (“[W]hen an officer makes an arrest,

which is properly supported by probable cause to arrest for a certain offense, neither

his subjective reliance on an offense for which no probable cause exists nor his verbal

announcement of the wrong offense vitiates the arrest.” (quoting United States v.

Saunders, 476 F.2d 5, 7 (5th Cir. 1973))). But the Eleventh Circuit recently clarified

that this so-called “any-crime rule” does not extend to claims of malicious prosecution.

Williams v. Aguirre, 965 F.3d 1147, 1162 (11th Cir. 2020).

10

the sources of [such] information,” id. at 1436 (quoting Harris v. Lewis State

Bank, 482 So. 2d 1378, 1382 (Fla. 1st DCA 1986)). But a deputy is “not requirec

to explore and eliminate every theoretically plausible claim of innocence before

making an arrest.” Kingsland v. City of Miami, 382 F.3d 1220, 1229 (11th Cir

2004) (quoting Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir

1997)); see also Dist. of Columbia v. Wesby, 138 S. Ct. 577, 588 □□□□□

(“[P]robable cause does not require officers to rule out a suspect's innocent

explanation for suspicious facts.”).

Here, even if the Deputies had driven to the laundromat and confirmed

that Carter had picked up an identical bag of laundry soap in recent days, this

information would not have undermined probable cause. As Deputy Miller told

Carter repeatedly during the traffic stop, he was not suggesting that all of the

white powder was cocaine, only that it tested positive for the presence of cocaine,

leaving open the possibility that a small amount of the drug had been mixed or

“cut” with another substance, including laundry soap. (Traffic Stop Recording

at 07:20—-07:35). Carter’s objection that the Deputies should have been able to

“distinguish” the substance in his possession from cocaine “based on its look.

smell, and taste,” (Doc. 20 at 17), fails for similar reasons—to say nothing of the

safety issues involved in smelling and tasting an unknown substance found

during a traffic stop. See also Fincher, 2020 WL 1518625, at *8 (holding that

officers had probable cause to arrest the plaintiff after a substance found in her

11

car tested positive for meth even though “[t]he substance smelled like cottor

candy or blueberry, did not resemble the meth the officers had previously

observed, and [the plaintiff and her boyfriend] identified it as cotton candy’).

Perhaps recognizing that the positive drug test is detrimental to his

claims, Carter tries a different approach—alleging that the test never

happened. In his Response, for example, Carter states that “Deputy Miller never

tested the substance on the scene and falsely stated [that] he did,” (Doc. 20 at

3), insisting that there are triable issues of material fact regarding whether

Deputy Miller “lied about having obtained a positive result[] or brought one to

the scene,” (id. at 10). Elsewhere, Carter broadens this accusation, suggesting

that “Deputy Vanscoy corroborated [Deputy Miller's] lie.” (Doc. 20 at 13).

To bolster this strategy, Carter points to Reddick, in which the district

court conducted its probable cause analysis without considering a purported

positive drug test taken at the scene because the results of that test were

disputed by the plaintiff. 2017 WL 2789280, at *4 (“Defendant would add [to the

other circumstances suggesting probable cause] that he also field tested the

white substance and determined that it was cocaine. This fact, however, is

disputed because of Plaintiff's testimony that she did not observe ‘the vial

change colors.”).!! In that case, however, the dispute was based on the plaintiffs

11 Importantly, the court in Reddick determined that even if it credited the

plaintiffs assertion that the field test was negative, the officers still had probable cause

12

own testimony about what she witnessed during her traffic stop, not or

innuendo or assumption. The plaintiff testified, for example, that “she saw [the

defendant] pick up a substance from inside the car and place it in a field test

vial,” watched as the liquid inside the vial “did not change color” and then

“witnessed the [defendant] throw the vial in nearby bushes” before walking back

to her and stating falsely that the substance in her car had tested positive for

cocaine. Id. at *2.

Carter offers no such testimony. He admits, in fact, that he did not witness

Deputy Miller’s testing process firsthand, (Carter Decl. 4 13), and he confirmed

at the scene that the test swab was blue, indicating the presence of cocaine,

(Traffic Stop Recording at 04:14—04:17). In other words, Carter offers no

evidence to support his allegation that the Deputies lied about the positive test

result. He has thus failed to establish a genuine dispute over material facts. See

Sawyer, 243 F. Supp. 2d at 1262 (“In a response to a motion for summary

judgment, a party cannot rely on ignorance of facts, on speculation, or on

suspicion, and may not escape summary judgment in the mere hope that

something will turn up at trial.” (quoting Conaway v. Smith, 853 F.2d 789, 794

(10th Cir.1988))); see also Olin v. Scales, No. 6:12—cv—1455—Orl-28TBS, 2014

to arrest her based on other circumstances known to them at the time, including “her

presence at a drug transaction, her prior history with cocaine, the canine alert, and

the presence of what appeared to be crack cocaine on the floorboard [of her car].” 2017

WL 2789280, at *5.

13

WL 1621952, at “3 (M.D. Fla. Apr. 22, 2014) (“When faced with a □□□□□□□□□□

supported motion for summary judgment, [the nonmoving party] must come

forward with specific factual evidence, presenting more than mere allegations.”

(quoting Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir.1997))).

IV. CONCLUSION

It is perfectly understandable why Carter, having suffered the

indignity of arrest for a crime he knew he did not commit, might feel some

animosity toward Defendants—and a desire for adequate recompense. But the

protections of the Fourth Amendment (and Florida law) guarantee only due

process, not desired results. They do not, in other words, shield the innocent

from arrest—only from arrest without probable cause. In this case, the facts and

circumstances known to the Deputies at the time—including a positive drug

test—provided them with probable cause to arrest and charge Carter with

trafficking cocaine. The fact that this charge was eventually dropped may be

cold comfort to Carter, who lived for two months under a Damoclean cloud of

potential prosecution. In the end, however, process prevailed. Carter’s claims to

the contrary fail as a matter of law.

Accordingly, itis ORDERED and ADJUDGED that:

1. Defendants’ Motion for Summary Judgment (Doc. 15) is

GRANTED.

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2. The Clerk is DIRECTED to enter judgment providing that Carte:

takes nothing on all claims.

3. Defendants’ Motion to Exclude (Doc. 22) is DENIED as moot.

A. After entry of judgment, the Clerk shall close the case.

DONE and ORDERED in Orlando, ye , 2023.

( 7 □□

JQHN AN II

Unitéd States District Judge

Copies furnished to:

Counsel of Record

Unrepresented Parties

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