Tyler Land v. Sheriff of Jackson County Florida

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12324

____________________

TYLER LAND,

Plaintiff-Appellant,

versus

SHERIFF OF JACKSON COUNTY FLORIDA,

JOHN ALLEN,

individually,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 5:19-cv-00120-MCR-MJF

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2 Opinion of the Court 22-12324

____________________

Before WILLIAM PRYOR, Chief Judge, ABUDU and ED CARNES, Cir-

cuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal presents the issue of whether Deputy John Allen

and Sheriff Louis Roberts are entitled to qualified and state-agent

immunity from Tyler Land’s complaint that he was arrested pur-

suant to a warrant based on a false affidavit. After Land drove a

methamphetamine trafficker to an undercover drug sting, Allen

obtained a warrant from a magistrate judge and arrested him. Flor-

ida charged Land with aiding and abetting drug trafficking and de-

tained him for over six months before dismissing the charges. Land

sued Allen and Roberts under federal and state law, alleging that

Allen illegally arrested, detained, and prosecuted him and that Rob-

erts was deliberately indifferent to and negligently caused Allen’s

misconduct. The district court granted summary judgment for the

officers. Because Allen’s warrant affidavit—excluding any false

statements—supplied probable cause for Land’s arrest, we affirm.

I. BACKGROUND

Sheriff Louis Roberts of Jackson County, Florida, hired John

Allen as a deputy in 2009. Before hiring Allen, the Sheriff’s office

conducted a background investigation and found him to be quali-

fied and of good moral character, as required by state law. See FLA.

STAT. § 943.13(7) (deputies must have good moral character). Allen

completed various training exercises during his employment and

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22-12324 Opinion of the Court 3

was assigned additional responsibilities in the K-9 unit and on a

drug task force affiliated with the federal Drug Enforcement Ad-

ministration.

In 2016, Allen, as part of the drug task force, was investigat-

ing the conduct of a suspected drug trafficker named Scott Smith.

On June 14, a Tuesday, officers phoned Smith to arrange a con-

trolled purchase of methamphetamine at 2 p.m. in the parking lot

of a Dollar General store in Greenwood, Florida. An undercover

federal agent, fitted with surveillance equipment and accompanied

by two confidential informants, waited at the purchase location in

a black truck. A surveillance plane circled over the scene.

Smith arrived at the store parking lot in a Ford Explorer

driven by Tyler Land. The two were accompanied by Smith’s girl-

friend, Martha Bellamy, who had been a confidential informant in

other investigations. Smith exited Land’s Ford Explorer and en-

tered the federal agent’s black truck; simultaneously, the two con-

fidential informants exited the black truck and entered Land’s Ford

Explorer. Inside the black truck, Smith sold the agent approxi-

mately 15 grams of methamphetamine—a trafficking quantity. See

FLA. STAT. § 893.135(1)(f)(1).

Officers identified Land as the driver of the Ford Explorer.

But Land later testified in his deposition that he had not known

about the drug deal and only occasionally “crossed paths” with

Smith and Bellamy. According to Land, on the day of the drug pur-

chase, Smith had offered to pay Land to drive him to get some parts

for a wrecked truck and Land accepted the offer. Along the way,

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4 Opinion of the Court 22-12324

Smith received a phone call and offered Land “some extra gas

money” in exchange for a detour to the Dollar General.

On June 24, 2016, Allen signed a probable cause affidavit for

Land’s arrest as a principal to methamphetamine trafficking, which

was received in the Clerk’s Office on June 27. The affidavit accu-

rately certified, as the basis for probable cause, that the drug task

force had “prearranged” the purchase of a trafficking quantity of

methamphetamine from Smith, and that Land and Smith had ar-

rived together at the designated time and place. It explained that

Land had “driven [Smith] to the meeting location,” was “positively

identified” as the driver of the vehicle, and “was present” for the

surveilled purchase.

But the affidavit contained several significant errors. Among

other errors, it wrongly stated that the purchase quantity was 30.54

instead of 15 grams of methamphetamine. According to Allen, the

30.54 number was a “clerical error,” a copy-and-paste from an affi-

davit prepared for “another drug deal . . . conducted with [] Smith

just prior.” The affidavit also wrongly stated that Land had over-

seen the purchase “as it took place inside his vehicle.” Allen later

testified that he misidentified the vehicle where the purchase took

place because of “what the surveillance team”—that is, the team in

the plane—had “provided [him].” He suggested that the “several

exchanges of people between vehicles at the onset of the investiga-

tion” may have confused the overhead team, but he also confessed

that he “[didn’t] have anybody that positively said that [the pur-

chase in Land’s vehicle] is what happened.” He also admitted that

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he did not reach out to the federal agent who had made the hand-

to-hand purchase, but instead relied on his “interpretation” of the

surveillance chatter of his Jackson County colleagues. Finally, the

affidavit wrongly stated that the drug task force investigation had

targeted both Smith and Land. Allen later admitted he was aware

that only Smith, and not Land, had been a target.

A magistrate judge, relying on Allen’s affidavit, signed a war-

rant for Land’s arrest on June 24, 2016. That same day, deputies

including Allen arrested Land at his home. Land was initially

charged as a principal to trafficking 28 grams or more—an error in

quantity—of methamphetamine. Smith was also arrested and

charged with methamphetamine trafficking, and he later pleaded

no contest to a lesser charge and received a 60-month sentence.

Immediately after the arrests, Bellamy called Allen to tell

him that he had gotten the “specifics of it”— the vehicle where the

purchase occurred and whether Land knew about the drugs—

wrong. Allen allegedly told her to “keep [her] mouth shut.”

Land spent over six months in jail. In January 2017, his bond

was reduced, so he paid it and was released. In October, the state

filed a nolle prosequi because Land’s role in the drug transaction was

“minimal” and the “6 months Mr. Land did in the county jail and

the additional 6 months he has remained on bond” provided suffi-

cient punishment.

Land filed suit in the district court. His complaint alleged

claims of false arrest and seizure in violation of the Fourth Amend-

ment; illegal detention in violation of the Due Process Clause of

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6 Opinion of the Court 22-12324

the Fourteenth Amendment; civil conspiracy to violate his consti-

tutional rights; and malicious prosecution, intentional infliction of

emotional distress, and negligent hiring, retention, training, or su-

pervision under Florida law. Roberts and Allen moved for sum-

mary judgment.

The district court granted summary judgment for the offic-

ers based on qualified and state immunity and because Land failed

to prove his claims. It ruled that a genuine dispute existed about

whether Allen’s affidavit misstatements were reckless, but it deter-

mined that even absent those misstatements, probable cause sup-

ported Land’s arrest. It also ruled that Land could not prove a claim

of deliberate indifference against Roberts, that any claim of pro-

longed detention arose under the Fourth Amendment and failed,

that no underlying constitutional violation supported his allegation

of civil conspiracy, and that the officers enjoyed immunity from his

claims under state law.

II. STANDARD OF REVIEW

We review de novo a summary judgement. See Washington v.

Howard, 25 F.4th 891, 897 (11th Cir. 2022). Summary judgment is

warranted if “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).

III. DISCUSSION

We address in four parts Land’s claim that he was arrested

based on a false warrant affidavit. First, because Land challenges a

seizure based on legal process—that is, a warrant-based arrest—the

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common law tort of malicious prosecution, not false arrest, guides

our review, and Allen is entitled to qualified immunity against

Land’s claim that Allen violated the Fourth Amendment. Second,

because Allen did not violate the Fourth Amendment, Land’s fed-

eral claim against Sheriff Roberts fails. Third, Land cannot prove

any other violation of his federal rights. And fourth, state-agent and

sovereign immunity bar Land’s claims under state law.

A. Land’s Fourth Amendment Claim Against Allen is Barred by

Qualified Immunity.

Public officials acting within their discretionary authority

enjoy qualified immunity from “civil damages when their conduct

does not violate a constitutional right that was clearly established

at the time of the challenged action.” Williams v. Aguirre, 965 F.3d

1147, 1156 (11th Cir. 2020) (citation and internal quotation marks

omitted). The absence of a constitutional violation ends the analy-

sis of qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 242

(2009) (courts may engage in the steps of the analysis in any order).

If Land cannot prove that Allen violated his rights under the Fourth

Amendment, Allen is entitled to qualified immunity.

Malicious prosecution—not false arrest—provides the tort

analogue for Land’s claim that Allen violated his Fourth Amend-

ment right by arresting him pursuant to a warrant based on a prob-

able-cause affidavit containing misrepresentations. See Thompson v.

Clark, 142 S. Ct. 1332, 1337 (2022); Williams, 965 F.3d at 1158; see

also Laskar v. Hurd, 972 F.3d 1278, 1284–85 (11th Cir. 2020) (plaintiff

must prove that he was arrested based on a warrant lacking

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8 Opinion of the Court 22-12324

probable cause, and that proceedings terminated in his favor—for

example, by dismissal of charges). A challenge to a warrant-based

arrest alleges that the legal process has failed. See Williams, 965 F.3d

at 1165. Where a magistrate judge’s “probable cause determination

is predicated solely on a police officer’s false statements,” the “legal

process itself [has] go[ne] wrong.” Id. at 1158 (quoting Manuel v.

City of Joliet, 137 S. Ct. 911, 918 (2017)). The warrant “do[es] noth-

ing to satisfy the Fourth Amendment’s probable-cause require-

ment” when the judge was presented with materially incorrect in-

formation. Id. (quoting Manuel, 137 S. Ct. at 919).

The district court did not err in granting Allen qualified im-

munity because probable cause existed for the arrest. The absence

of probable cause is an element of any claim that an arresting of-

ficer violated the Fourth Amendment. See Williams, 965 F.3d at

1159 (“[T]he absence of probable cause is undoubtedly a require-

ment for a claim of malicious prosecution.”); Brown v. City of Hunts-

ville, 608 F.3d 724, 734 (11th Cir. 2010) (same for warrantless arrest).

Probable cause exists when, after considering the totality of the cir-

cumstances, “a reasonable officer could conclude” that “there was

a substantial chance of criminal activity.” District of Columbia v.

Wesby, 138 S. Ct. 577, 588 (2018) (citation and internal quotation

marks omitted); Washington, 25 F.4th at 899–902 (reconciling prec-

edents and holding that the Wesby standard applies). It is “not a high

bar.” Wesby, 138 S. Ct. at 586 (citation and internal quotation marks

omitted).

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But the nature of the probable-cause inquiry differs between

warrant-based and warrantless arrests. A warrant-based arrest ordi-

narily requires the supporting affidavit to provide probable cause

for the specific crime for which the detainee was arrested. See Wil-

liams, 965 F.3d at 1162. In contrast, officers conducting warrantless

arrests do not violate the Fourth Amendment so long as probable

cause existed to “arrest the suspect for some crime, even if it was

not the crime the officer thought or said had occurred.” Id. at 1158.

This distinction exists because persons arrested without a warrant

can be held only for a “brief period,” typically no longer than 48

hours, before being brought before a magistrate judge. Id. at 1164

(quoting Gerstein v. Pugh, 420 U.S. 103, 113–14 (1975) (internal quo-

tation marks omitted)). A longer detention requires a probable-

cause determination, made by a neutral magistrate judge, that the

arrestee committed a specific crime. See id.

Because Land was detained for 6 months, we must evaluate

whether Allen’s affidavit, excluding his misstatements, provided

enough information for the magistrate judge to find probable cause

that Land committed the crime of aiding and abetting drug traffick-

ing. Williams, 965 F.3d at 1165 (reviewing whether “the legal pro-

cess justifying [the] seizure . . . was constitutionally infirm,” and

whether the “seizure would not otherwise be justified without le-

gal process”). We do not consider the subjective knowledge of the

arresting officer, later amendments not presented to a magistrate

judge, or any evidence not incorporated into the operative affida-

vit. See Williams, 965 F.3d at 1163–64; Garmon v. Lumpkin County,

878 F.2d 1406, 1409 (11th Cir. 1989) (instructing courts to consider

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10 Opinion of the Court 22-12324

“the facts that were before the magistrate” who issued the war-

rant). And we excise any intentional or reckless misstatements in

the affidavit: where an officer makes an “intentional” or “reckless

misstatement,” we evaluate “whether probable cause would be ne-

gated if the offending statement was removed.” Paez v. Mulvey, 915

F.3d 1276, 1287 (11th Cir. 2019); see also Franks v. Delaware, 438 U.S.

154, 156 (1978); Laskar, 972 F.3d at 1296.

Allen concedes that he failed to verify in which vehicle the

drug purchase took place, misrepresented that Land was a target of

investigation, and erroneously stated the amount of drugs in-

volved. The district court identified a genuine factual dispute about

whether those misstatements were at least reckless. So we exclude

them from our probable-cause determination. But contrary to our

dissenting colleague’s assertion, we need not excise the affidavit’s

statement that “Land was present” at the crime scene—the Dollar

General parking lot—because it is a true statement. Land’s presence

in the parking lot, after he drove himself and Smith there, was ver-

ified by the Jackson County surveillance team, who accurately pro-

vided Allen with Land’s name and identity. Nobody disputes that

Land was present. Land’s counsel agreed at oral argument that af-

ter excising the erroneous facts, the affidavit still established that

Land was “the driver of the vehicle that went to a predetermined

drug deal” and that he “waited until” the deal was completed. In-

deed, counsel responded that Land’s “presence at the scene of a

crime is not enough” to establish probable cause. But Land’s con-

tinued presence is an important factor in the probable cause deter-

mination.

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22-12324 Opinion of the Court 11

Our dissenting colleague suggests we should consider Al-

len’s subjective intent and deposition testimony in construing his

affidavit. But we cannot consider an arresting officer’s subjective

intent or extrinsic evidence when evaluating whether probable

cause existed for a process-based seizure. See Williams, 965 F.3d at

1163–64. And were we to open the door to deposition testimony,

it would favor the finding that Land was present and had the requi-

site intent to aid the drug sale. For example, Allen testified that

Smith had told him that Land was using drugs immediately before

the transaction and had agreed to drive Smith to the transaction as

payment for drugs; Smith testified that Land knew that Smith was

a drug dealer; and Bellamy testified that Land was a “really good

friend,” that Land and Smith had previously used methampheta-

mine together, and that the two confidential informants at the

crime scene had entered Land’s truck while the drug sale was hap-

pening.

Even without Allen’s misstatements, the initial affidavit pro-

vided probable cause to support Land’s arrest as a principal to

methamphetamine trafficking. Under Florida law, aiding and abet-

ting requires an act in furtherance of the underlying crime, per-

formed with the intent that the crime be committed. See Staten v.

State, 519 So. 2d 622, 624 (Fla. 1988). Allen’s affidavit described an

overt act furthering drug trafficking: it explained that Land drove

Smith to the clandestine purchase location. And the affidavit pro-

vided details from which a factfinder could infer Land’s culpable

intent. A drug sting was ongoing, Land arrived with the sting’s tar-

get to the location at the prearranged time, and Land stayed for the

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12 Opinion of the Court 22-12324

duration of the surveilled transaction—all facts giving rise to the

inference that Land intended to aid the suspicious happenings.

From these facts, the magistrate judge could reasonably find that

Land played a criminal role. See United States v. Irurzun, 631 F.2d 60,

63 (5th Cir. Unit B 1980) (“While presence alone is not enough to

constitute probable cause, presence and additional factors that

would lead a prudent person to believe that an offense has been or

is being committed is sufficient.”).

Land contends that “mere propinquity” or proximity to

criminal activity “without more” does not give rise to probable

cause. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979). But the only bind-

ing precedent that Land cites is distinguishable. In that case, United

States v. Virden, we held that officers lacked probable cause for the

warrantless arrest of an individual who emerged from one of nine

properties under police surveillance, where no active sting was be-

ing conducted. 488 F.3d 1317, 1319–20 (11th Cir. 2007). Here, in

contrast, Land drove an acquaintance, the target of an active drug

bust, to a predetermined location and remained present as the tar-

get completed the sale. See Maryland v. Pringle, 540 U.S. 366, 373

(2003) (being in the front passenger seat of car with cocaine estab-

lished probable cause because “a car passenger . . . will often be

engaged in a common enterprise with the driver” and a drug dealer

“would be unlikely to admit an innocent person” into his criminal

enterprise because that person has “the potential to furnish evi-

dence against him”) (internal quotation marks omitted); United

States v. Ashcroft, 607 F.2d 1167, 1172 (5th Cir. 1979) (being present

in an apartment within earshot of a drug deal on two separate

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occasions is enough for probable cause because “a drug sale involv-

ing large quantities of [drugs] is a private transaction that does not

usually occur in the open or in the presence of strangers”). Land’s

role as the driver involved more than proximity; he assisted Smith

with what appeared to be a shared intent to sell methampheta-

mine. Allen is entitled to qualified immunity from Land’s claim that

he violated the Fourth Amendment.

B. Land’s Fourth Amendment Claim Against Sheriff Roberts Fails.

Land argues that Sheriff Roberts violated his Fourth Amend-

ment right by permitting Allen to illegally arrest him. Land sued

Roberts, in his official capacity, for damages. See 42 U.S.C. § 1983;

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–92 (1978) (respondeat

superior is not available in a section 1983 claim). To seek damages

from the Office of the Sheriff, Land had to establish “(1) that his

constitutional rights were violated; (2) that the [municipal office]

had a custom or policy that constituted deliberate indifference to

that constitutional right; and (3) that the policy or custom caused

the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.

2004) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)).

Land’s claim fails at the first step. A Monell claim is derivative

of—and so requires—an actual constitutional violation by an of-

ficer. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a

person has suffered no constitutional injury at the hands of the in-

dividual police officer, the fact that the departmental regulations

might have authorized the [constitutional violation] is quite beside

the point.”). Because Allen never violated Land’s Fourth

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14 Opinion of the Court 22-12324

Amendment right, Roberts cannot be held liable for constitution-

ally deficient supervision.

C. Land Cannot Prove Any Other Violation of His Constitutional Rights.

Land argues that the officers illegally “over-detained” him,

in violation of the Due Process Clause of the Fourteenth Amend-

ment, when they failed to release him after allegedly exculpatory

evidence eliminated probable cause. But this argument does not

sound in due process. The Fourth Amendment, not the Four-

teenth, provides the “explicit textual source of constitutional pro-

tection” for a detainee who alleges that he was arrested and held

without probable cause. Alcocer v. Mills, 906 F.3d 944, 955 (11th Cir.

2018) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989) (internal

quotation marks omitted)). Land’s argument that new evidence vi-

tiated probable cause and vindicated his innocence is properly con-

sidered under the Fourth Amendment. See Washington, 25 F.4th at

898 (a challenge to “a seizure based on a warrant [] supported by

probable cause but [] later undermined by contrary exculpatory ev-

idence” arises under the Fourth Amendment). And we have al-

ready explained that no violation of the Fourth Amendment oc-

curred because Land’s arrest warrant was supported by probable

cause.

Land’s argument that Allen conspired to violate his consti-

tutional rights, see 42 U.S.C. § 1983, fails for the same reason: Land

cannot identify an underlying constitutional violation. “A plaintiff

may state a § 1983 claim for conspiracy to violate constitutional

rights by showing a conspiracy existed that resulted in the actual

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22-12324 Opinion of the Court 15

denial of some underlying constitutional right.” Grider v. City of Au-

burn, 618 F.3d 1240, 1260 (11th Cir. 2010) (emphasis added). In the

absence of a constitutional violation, Land cannot prove a deriva-

tive-conspiracy claim.

D. Land’s Florida Law Claims are Barred by Statutory and Sovereign

Immunity.

Land’s state-law claims against Allen are barred by state-

agent immunity. See FLA. STAT. § 768.28(9)(a). Florida law shields

an officer from personal liability for acts within the scope of his em-

ployment unless he “acted in bad faith or with malicious purpose

or in a manner exhibiting wanton and willful disregard of human

rights, safety, or property.” Id. Because probable cause existed for

his arrest, Land cannot establish that Allen acted in bad faith or

with malicious purpose. See Burns v. GCC Beverages, Inc., 502 So. 2d

1217, 1218 (Fla. 1986) (malicious prosecution requires lack of prob-

able cause); Bolanos v. Metropolitan Dade County, 677 So. 2d 1005,

1005 (Fla. Dist. Ct. App. 1996) (same for false arrest). The “standard

for determining the existence of probable cause is the same under

both Florida and federal law.” Rankin v. Evans, 133 F.3d 1425, 1433

(11th Cir. 1998). And Land’s claim of intentional infliction of emo-

tional distress fails too. Hart v. United States, 894 F.2d 1539, 1548

(11th Cir. 1990) (tort requires “outrageous conduct”) (citing Metro.

Life Ins. v. McCarson, 467 So. 2d 277, 278 (Fla. 1985)). Whether con-

duct is outrageous is a question of law, and the conduct must be

“so extreme in degree, as to go beyond all possible bounds of de-

cency.” Metro. Life, 467 So. 2d at 278–79. That bar is not met be-

cause Allen’s affidavit, even without the misstatements, supplied

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16 Opinion of the Court 22-12324

probable cause to believe that Land had engaged in criminal activ-

ity.

Land’s negligence claims against Sheriff Roberts are barred

by sovereign immunity. Municipalities and their officers are enti-

tled to immunity from tort liability except where that immunity is

explicitly waived. FLA. STAT. § 768.28(1); FLA. CONST. art. X, § 13.

Florida retains immunity from liability arising from “discretionary”

government functions but waives immunity for “operational”

functions. Kaisner v. Kolb, 543 So. 2d 732, 736 (Fla. 1989). A discre-

tionary function involves an exercise of executive power where the

court’s “interven[ing] by way of tort law” would “inappropriately

. . . entangle it[] in fundamental questions of policy and planning.”

Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092,

1118 (11th Cir. 2005) (citing Henderson v. Bowden, 737 So. 2d 532,

538 (Fla. 1999)). Under Florida law, the training of police deputies

is a discretionary function because it is intertwined with the policy

and planning of law enforcement. See Lewis v. City of St. Petersburg,

260 F.3d 1260, 1266 (11th Cir. 2001) (“[Deputies’ training] is clearly

an exercise of governmental discretion.”). The same logic applies

to department policy in the hiring or retention of deputies.

IV. CONCLUSION

We AFFIRM the summary judgment in favor of Allen and

Sheriff Roberts

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22-12324 ABUDU, J., Dissenting 1

ABUDU, Circuit Judge, Dissenting:

Land was incarcerated for over six months without any

hearing on the merits of his charges, based entirely on a warrant

and affidavit plagued with false statements. The Majority never-

theless finds the limited, true facts in the affidavit sufficient to es-

tablish probable cause to charge Land with trafficking metham-

phetamine. I disagree.

I. BACKGROUND

While the Majority Opinion’s recitation of the facts is gener-

ally correct, further detail and some clarifications are needed to

paint the full picture of the issues before us. As an initial matter,

the nature and impact of Land’s arrest should not be understated.

As Land testified, he spent most of June 24, 2016, with his family at

a state park. Shortly after returning home, Land was confronted at

his doorstep by a host of officers from the Jackson County Sheriff’s

Office, including Allen. Despite the presence of Land’s family, in-

cluding his wife, grandmother, and young children, multiple offic-

ers drew their firearms on Land. Allen arrested Land, told him he

was charged with trafficking methamphetamine, and stated that

“[t]his is for all the times we did not get you.”

Land’s misfortune did not end with the circumstances of his

arrest. Land was incarcerated in the Jackson County Jail for 207

days after being unable to post bail, which was initially set at

$100,000. The state then reduced Land’s bond to $47,000, which

he had to borrow money to satisfy. While Land was incarcerated,

he was unable to work or make child support payments, and his

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2 ABUDU, J., Dissenting 22-12324

driver’s license was suspended. Since being released, Land has

been unable to properly process the distress of his arrest and incar-

ceration without the aid of a professional counselor. Most im-

portantly to Land, his pretrial detention cost him months of time

with his children. When the state finally filed its nolle prosequi, there

was no acknowledgement of the bungled investigation that led to

Land’s incarceration. To the contrary, the state framed the action

as granting Land a lenient sentence of six months for his minimal

role in the alleged crime. This framing by the state assumed Land’s

guilt, even though he was never tried, much less convicted, of the

alleged crime.

In addition, the relevant false statements in the warrant

should be precisely identified. There are three false statements in

the warrant affidavit that should be set aside before considering

whether the remaining content of the affidavit supports a finding

of probable cause. See Franks v. Delaware, 438 U.S. 154, 155–56,

171–72 (1978) (holding that probable cause cannot be established

by making recklessly or deliberately false statements). In particu-

lar, the affidavit states that (1) Land was a previously identified tar-

get of the undercover investigation, (2) “Land was present and did

oversee the transaction as it took place inside his vehicle,” and

(3) the undercover officer confirmed that Land was “present during

the transaction.” Allen testified that each of these statements was

false. Specifically, Allen stated that Land was not a target of the

investigation, and when asked to state the probable cause support-

ing Land’s arrest, Allen’s entire answer was: “He drove [Mr.] Smith

to conduct a drug deal.” In fact, Allen admitted that the only

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22-12324 ABUDU, J., Dissenting 3

evidence that Land was involved in a drug deal was that he drove

Smith to the location of the drug transaction. Allen also conceded

that he never confirmed with the undercover officers or others that

Land was present during the drug sale. Although it is undisputed

that Land remained in his vehicle during the drug transaction and

that the transaction took place in a separate vehicle in the parking

lot, there is no evidence in the record showing that Land personally

witnessed the transaction.

Despite the evidence above, the Majority declines to set

aside as false the statements in the warrant affidavit indicating that

Land was present. In support of this decision, the Majority points

to the undisputed fact that Land was present in the parking lot at

the time of the transaction. However, Allen testified that his refer-

ence to Land’s presence in the warrant affidavit was intended to

communicate that Land was present in the vehicle in which the

drug transaction occurred, not that Land was present in the parking

lot generally. Moreover, it is more than reasonable to conclude

that the magistrate also interpreted “present” to mean, albeit

falsely, that Land was actually in the vehicle where the drug trans-

action occurred and personally witnessed it happen. Viewed in the

context of the other false statements and Allen’s testimony of his

intent in preparing the warrant affidavit, the statement to the mag-

istrate judge that Land was “present” during the drug deal was

recklessly false.

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4 ABUDU, J., Dissenting 22-12324

II. DISCUSSION

A. Land’s Claim Depends on the Content of the Affidavit Support-

ing Land’s Arrest Warrant.

Because Land’s Section 1983 claim is premised on his arrest

that was based on a warrant, it is properly considered as a claim for

malicious prosecution pursuant to legal process. Williams v.

Aguirre, 965 F.3d 1147, 1158 (11th Cir. 2020). To succeed on a ma-

licious prosecution claim, Land must establish “(1) that the legal

process justifying his seizure was constitutionally infirm and

(2) that his seizure would not otherwise be justified without legal

process.” Id. at 1165. There is no evidence in the record that Al-

len’s amended affidavit was ever presented for a probable cause de-

termination or that there was some justification for Land’s deten-

tion other than the initial affidavit. Accordingly, Land’s claim is

contingent upon whether the first affidavit sufficiently established

probable cause for the crime alleged – being a principal to traffick-

ing methamphetamine in violation of Florida law. See FLA. STAT.

§ 893.135(1)(f)(1); Williams, 965 F.3d at 1165 (holding that in cases

of malicious prosecution brought pursuant to a purportedly faulty

warrant, we must “examine[] whether probable cause existed from

‘the facts that were before the magistrate who issued the warrant.’”

(quoting Garmon v. Lumpkin County, 878 F.2d 1406, 1409 (11th Cir.

1989)).

A warrant supporting an arrest is constitutionally infirm if

“an official . . . intentionally or recklessly made misstatements or

omissions necessary to support the warrant.” Williams 865 F.3d at

1165. In such cases, this Court employs a two-part test for

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22-12324 ABUDU, J., Dissenting 5

evaluating whether the misstatements amount to a Fourth Amend-

ment violation. Paez v. Mulvey, 915 F.3d 1276, 1287 (11th Cir. 2019).

First, we excise any intentional or reckless misstatements or omis-

sions from the warrant. Id. Second, we examine the warrant to

determine if it establishes probable cause without those misstate-

ments. Id.; see also United States v. Kirk, 781 F.2d 1498, 1502 (11th

Cir. 1986) (“[W]e must consider: (1) whether the alleged misstate-

ments in the affidavit were made either intentionally or in reckless

disregard for the truth, and, if so, (2) whether, after deleting the

misstatements, the affidavit is insufficient to establish probable

cause.” (citing Franks, 438 U.S. 154)). Thus, our analysis of proba-

ble cause in this case is constrained to the facts contained in the

warrant once the misstatements have been excised. See W. Point-

Pepperell, Inc. v. Donovan, 689 F.2d 950, 959 (11th Cir. 1982) (“[J]udi-

cial review of the sufficiency of an affidavit for the issuance of a

warrant must be strictly confined to the information brought to the

magistrate’s attention.”).

The determination of probable cause requires an analysis of

“the totality of the circumstances to determine the reasonableness

of the officer’s belief that a crime has been committed.” Paez, 915

F.3d at 1286. Although probable cause is “not a high bar,” it still

requires the official to show “a probability or substantial chance of

criminal activity.” District of Columbia v. Wesby, 583 U.S. 48, 57

(2018). The Supreme Court has explained that probable cause “ex-

ists where the facts and circumstances . . . are sufficient in them-

selves to warrant a man of reasonable caution in the belief that an

offense has been or is being committed.” Ker v. California, 374 U.S.

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6 ABUDU, J., Dissenting 22-12324

23, 35 (1963) (citation and punctuation omitted). Proximity to oth-

ers suspected of criminal activity, without more, is insufficient to

establish probable cause, and a seizure does not comport with the

Fourth Amendment unless it is supported by probable cause par-

ticularized to the individual seized. See Ybarra v. Illinois, 444 U.S.

85, 92 (1979).

While our discussion of case law establishing probable cause

includes cases asserting claims other than malicious prosecution,

the standard to establish probable cause does not change based on

the underlying tort. Rather, the distinction between those cases is

which particular facts should be considered when determining

whether probable cause exists. As explained above, in this instance,

the only facts considered in assessing probable cause are the true

facts in the warrant affidavit. See Williams, 965 F.3d at 1165.

B. Without the False Statements, Land’s Arrest Warrant Does

Not Establish Probable Cause for the Alleged Crime.

With the three intentionally 1 or recklessly made false state-

ments properly excised, Allen’s affidavit does not establish proba-

ble cause to arrest Land as a principal to trafficking

1 While our legal analysis of Land’s malicious prosecution claim is constrained

to the few, true facts in the warrant affidavit, the evidence of Allen’s likely

intent and alleged history of unethical behavior is worth noting. The evidence

in the record indicates that Allen (1) was investigated for failing to disclose

legal proceedings against him for possession of marijuana, (2) was suspended

for having a woman in his law enforcement vehicle and in a hotel room with

him, in violation of the sheriff’s office’s policies, and (3) was reprimanded for

violating the sheriff’s office’s policy on social media usage.

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22-12324 ABUDU, J., Dissenting 7

methamphetamine. The first three paragraphs of the affidavit,

without false statements, establish solely that on June 20, 2016, the

Jackson County Sheriff’s Office conducted an undercover opera-

tion targeting Smith, whereby undercover law enforcement offic-

ers and confidential informants drove to a prearranged meeting lo-

cation to make contact with and purchase methamphetamine from

Smith. After excising the other false statements, the third para-

graph, which includes the only true information particular to Land,

reads as follows:

Upon arrival, [Confidential Informant] 350 conducted

a transaction with Smith providing the currency in ex-

change for approximately 30.54 grams of suspected

crystal [m]ethamphetamine, which meets and ex-

ceeds the minimum mandatory trafficking require-

ments. Smith was driven to the meeting location by

Jeffery Tyler Land and Land was present and did

oversee the transaction as it took place inside his ve-

hicle. Land was also positively identified by the un-

dercover officer as the driver of the vehicle and the

person being present during the transaction.

Simply put, excluding Allen’s false statements, the warrant affidavit

only indicates that (1) Smith participated in a drug transaction, and

(2) Land drove Smith to the location where the drug transaction

occurred. The warrant is silent as to any involvement on Land’s

part. It does not indicate that Land helped set up the drug transac-

tion, that he was aware that a drug transaction was going to occur,

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8 ABUDU, J., Dissenting 22-12324

or that he would benefit in any way from Smith’s actions. Exclud-

ing the false statements in the warrant, there was no probable cause

for a magistrate judge to issue an arrest warrant for Land accusing

him of being a “principal to trafficking methamphetamine” under

Florida law. Pertinently, a defendant is culpable as a principal to a

violation of Florida law only if he “‘had a conscious intent that the

criminal act be done and . . . the defendant did some act or said

some word which was intended to and which did incite, cause, en-

courage, assist, or advise the other person or persons to actually

commit or attempt to commit the crime.’” Hall v. State, 100 So. 3d

288, 289 (Fla. Dist. Ct. App. 2012) (quoting Smith v. State, 76 So. 3d

1056, 1058 n.3 (Fla. Dist. Ct. App. 2011). Even knowledge of the

offense being committed or presence at the scene of the crime ac-

companied by flight are, without more, insufficient to demonstrate

the requisite intent. Id. Because the warrant contains no true facts

supporting a finding that Land had a conscious intent to further

Smith’s crime, it does not establish probable cause that Land was a

principal to the crime.

C. The Majority Opinion Revises the Warrant for a Post Hoc

Finding of Probable Cause.

The Majority Opinion finds that the remaining factually cor-

rect text in the warrant affidavit established probable cause for

Land’s arrest, but this finding is based heavily on the statements

indicating that Land was present during the drug transaction. In

particular, the Majority holds that “Land’s presence at the crime

scene is critical to establishing probable cause.” Maj. Op. at 11.

However, Land’s presence as characterized by the Majority does

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22-12324 ABUDU, J., Dissenting 9

not carry the same meaning as was communicated to the magis-

trate in the warrant affidavit. As discussed above, the other false

statements in the warrant paint a picture that Land’s presence as

described in the affidavit meant he was in the same vehicle in which

the drug sale occurred. Because Allen admits that he intended to

convey that Land witnessed the drug deal, there can be no retroac-

tively applied clarification of Land’s physical location during the

drug transaction to now justify Land’s unlawful arrest.

With Allen’s intentional or reckless misstatements omitted,

see Paez, 915 F.3d at 1287, the warrant affidavit establishes only that

Land drove Smith to the site of the drug transaction. There is no

indication in the remaining text of the warrant that Land waited for

the transaction to complete or was otherwise present for its occur-

rence. As explained above, our analysis in this case is constrained

to the four corners of the warrant affidavit. See Whitely, 401 U.S. at

564–65, n.8; Williams, 965 F.3d at 1162. The failure to limit the

analysis of Land’s malicious prosecution claims to the true facts

presented in the warrant affidavit devalues the magistrate’s initial

probable cause determination and substitutes a new probable cause

determination long after the unlawful detention began.

D. The Warrant Affidavit Fails to Establish Probable Cause

Whether or Not Land’s Presence Is Considered.

Even if the word “present” is not excised from the warrant

affidavit and did mean Land was in the parking lot but not the car

(which, again, Allen testified was not the intended meaning), the

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10 ABUDU, J., Dissenting 22-12324

remaining language in the warrant affidavit still fails to establish

probable cause.

Most significantly, the Supreme Court’s holding in United

States v. Di Re forecloses the possibility of finding probable cause

solely based on physical presence. 332 U.S. 581 (1948). In Di Re, an

investigator was told by an informant that a certain individual

would be unlawfully distributing counterfeit gasoline ration cou-

pons at a designated time and place. Id. at 583. The named indi-

vidual was discovered in a vehicle at the location with the coupons

on his person, but that individual was accompanied by Di Re. Id.

The government argued that Di Re’s presence in the car with the

other individual involved in a crime at the time and location recited

by the informant was sufficient to establish probable cause to arrest

Di Re. Id. at 593. The Court disagreed and found those facts, with-

out more, could not establish probable cause. Id. In rejecting the

government’s contention, the Court explained that “[t]he argu-

ment that one who ‘accompanies a criminal to a crime rendezvous’

cannot be assumed to be a bystander, forceful enough in some cir-

cumstances, is farfetched when the meeting is not secretive or in a

suspicious hide-out but in broad daylight, in plain sight of pass-

ersby, in a public street of a large city, and where the alleged sub-

stantive crime is one which does not necessarily involve any act

visibly criminal.” Id.

The facts in the warrant affidavit here mirror the govern-

ment’s argument in Di Re. Land’s act of accompanying Smith to a

crime scene in broad daylight where an informant indicated that

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22-12324 ABUDU, J., Dissenting 11

Smith, not Land, would conduct a drug transaction provides no ad-

ditional indicia of criminal activity on Land’s part. Because a target

of the investigation other than Land was identified by the inform-

ant and because the warrant lacks additional facts from which a

magistrate could conclude that Land was involved in the drug

transaction, the holding in Di Re is indistinguishable and compels

us to find that there was no probable cause established by Allen’s

warrant affidavit.

The lack of probable cause in the warrant affidavit is also

demonstrated by this Court’s prior decision in United States v.

Virden. In Virden, we rejected the argument that law enforcement

officers had probable cause, even with significant evidence of the

suspect’s involvement in drug activity. 488 F.3d 1317, 1322 (11th

Cir. 2007). In that case, the officers knew that “(1) [the suspect] left

a location of suspected drug activity, (2) he appeared to have con-

trol over the [location’s] garage because the garage door closed

without anyone else being seen, and (3) he misstated exactly where

he had been to the police.” Id. Yet, we observed that these facts,

without more, were insufficient to establish probable cause. Id.

Here, the warrant affidavit establishes no more evidence than that

considered in Virden, and a finding of probable cause to arrest Land

is inconsistent with our holding in that case.

In support of its holding, the Majority cites to Maryland v.

Pringle, 540 U.S. 366 (2003) and United States v. Ashcroft, 607 F.2d

1167 (5th Cir. 1979), but in Pringle, the defendant was arrested in a

vehicle at 3:16 a.m. with drugs and $763 of cash within his reach.

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12 ABUDU, J., Dissenting 22-12324

Pringle, 540 U.S. at 371–72. The Supreme Court considered the to-

tality of all these factors, including the presence of the cash and the

drugs within the defendant’s reach, in finding there was probable

cause to arrest the defendant. See id. at 372 n.2. Ashcroft also is

inapposite because the court’s analysis there relied heavily upon

the arresting officers’ knowledge that the defendant had been pre-

sent at a prior drug transaction, during which the defendant “was

sitting only two feet away from the negotiations and heard all that

transpired.” Ashcroft, 607 F.2d at 1171. Even if we consider that

Land was in the same parking lot as the drug transaction, there is

nothing in the warrant affidavit indicating that Land was within

two feet of the transaction or was otherwise aware that it occurred.

Pringle and Ashcroft involve facts pointing to arrestees with substan-

tially higher involvement in the alleged crime than Land had here,

and neither case should lead us to conclude that the warrant affida-

vit established probable cause to arrest Land.

As described above, the legal process by which Land was ar-

rested, relying upon Allen’s recklessly if not intentionally false war-

rant affidavit, did not meet the standard of probable cause. We

should decline to expressly permit such baseless arrests without

consequence, particularly when we consider the six-month deten-

tion Land endured. Otherwise, this Court widens the door for fu-

ture bad actors to intentionally and maliciously draft bare-bones

warrants, unsupported by thorough investigations, and to do so

with no fear of consequences for any false statements therein. In

sum, probable cause demands more evidence than what was pro-

vided in the warrant affidavit here.

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22-12324 ABUDU, J., Dissenting 13

III. CONCLUSION

The district court’s grant of summary judgment as to each

of Land’s claims is premised upon its finding that Allen had proba-

ble cause to arrest Land. Because Allen’s affidavit in support of the

arrest warrant, excluding the false statements, did not establish

probable cause, this Court should remand this case for further pro-

ceedings.

For the foregoing reasons, I respectfully dissent.