# Petition for Writ of Certiorari — Rankin v. Evans

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 823

## Text

Supreme Court, u.s.
‘tie.

9% 2012 WN 15 109

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States
October Term, 1997

e

DOUG RANKIN and VICTORIA RANKIN,

Petitioners,

MARK EVANS, RICHARD WILLIE, SHERIFF OF
PALM BEACH COUNTY, PALM BEACH
COUNTY SHERIFF’S DEPARTMENT,

Respondents.

o

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit

&

PETITION FOR WRIT OF CERTIORARI

+

Donatp M. HINKLE

Counsel of Record

FONVIELLE HINKLE & Lewis

3375 Capital Circle Northeast,
Building A

Tallahassee, Florida 32308

(850) 422-7773

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Rule 50(a)(2) of the Federal Rules of Civil Procedure
requires a party seeking judgment as a matter of law to
“specify the judgment sought and the law and the facts
on which the moving party is entitled to the judgment.”
This specificity requirement is necessary “so that the
responding party may seek to correct any overlooked
deficiencies in the proof.” Advisory Committee Notes to
1991 Amendments to Fed.R.Civ.P. 50. If a party moves for
judgment as a matter of law at the close of ali the evi-
dence, and the trial court denies the motion, the moving
party may renew its motion for judgment as a matter of
law after trial. Fed.R.Civ.P. 50(b). In light of these provi-
sions, two issues arise:

I. Whether a moving party satisfied the specificity
requirement of Fed.R.Civ.P. 50(a)(2) when the party: (a)
failed to identify any grounds for either of its motions for
judgment as a matter of law; (b) relied on an earlier-
prepared trial memorandum that did not purport to be a
motion for judgment as a matter of law and was never
advocated as or incorporated into one; and (c) omitted
any reference to the basis the trial court ultimately used
to grant renewed judgment as a matter of law on a
section 1983 claim until two months after a jury verdict
was rendered against the moving party.

Il. Whether Petitioners Doug and Victoria Rankin’s
Seventh Amendment right to a civil jury trial free from
being “otherwise re-examined in any Court of the United
States” was violated where the jury verdict in their favor
was vacated five months later on grounds that were not

QUESTIONS PRESENTED - Continued

raised at trial in accordance with the Federal Rules of
Civil Procedure or caselaw interpreting their application.

ili

LIST OF PARTIES

The parties to the proceeding sought to be reviewed
are Doug and Victoria Rankin; Mark Evans; Palm Beach
County, Florida Sheriff's Department; and Richard Willie,
Sheriff of Palm Beach County.

TABLE OF CONTENTS

Page
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STATEMENT OF FURISUOICTION. ..0.. 0 escieeeeds l
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REASONS FOR GRANTING THE PETITION....... 5
ee PROS cute d50 had bee ooh bear ee enews 16

APPENDIX:
A. Rankin v. Evans, 133 F.3d 1425 (11th Cir.1998) .. A-1

B. Order of Hon. Judge Jose Gonzalez entereci
May 15, 1995, case number 91-8012-CIV-
Sa eRe sees ee eos a ae aa bee hs ae B-1

C. Eleventh Circuit Order denyirg rehearing
ERGO FETE Sp Ps oa tn se eas Cree ceeen C-1

TABLE OF AUTHORITIES

Page
Cases
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)... .. 6
Austin-Westshore Construction Co. v. Federated Dept.
Stores, Inc., 934 F.2d 1217 (lith Cie. 1991).......... 11
Francis v. Clark Equipment Co., 993 F.2d 545 (6th
Beare Perera aire Demat mE eis Peet ey 10
Food Lion v. Capital Cities/ABC, Inc., 984 F.Supp.
Fae CURA BORER a5 vce bp ch decree eee aes 14
Gordon v. County of Rockland, 110 F.3d 886 (2d
Cir.1997), cert. denied, 118 S.Ct. 74 (1997).......... 12
Hetzel v. Prince William County, 118 S.Ct. 1210
E . . | ERPRRa aa amare Ogee: Ss PN eh Mma We ag pe 15
Karns v. Emerson Elec. Co., 817 F.2d 1452 (10th
CORSO SD Although Count II alleges both false arrest and false
imprisonment, we refer to the claim as one for false arrest
because under Florida law “false arrest and false imprisonment
are different labels for the same cause of action.” Weissman v.
K-Mart Corp., 396 So.2d 1164, 1164 n. 1 (Fla. 3d DCA 1981).

seni

A-9

both at the close of plaintiffs’ case and at the close of all
evidence.® At neither time did defendants specifically
state their grounds for the motion for a directed verdict.
The trial court denied both motions, and the case went to
the jury, which found defendants liable on both counts.”

On January 4, 1995, defendants filed motions for a
judgment notwithstanding the verdict, for remittitur, to
alter or amend the judgment on the state count, and
alternatively for a new trial. Defendants based their
motion for a JNOV on the asserted existence of probable
cause for the arrest.8 The motion also asserted that

© We note that the 1991 Amendments to Rule 50 of the
Federal Rules of Civil Procedure changed the terminology used
to describe the relevant actions taken. Instead of using the term
“directed verdict” for a motion for a judgment as a matter of law
when the motion is made prior to the verdict, and the term
“judgment notwithstanding the verdict” when the motion is
made after the verdict is returned, Rule 50 now refers to both
motions as motions for a judgment as a matter of law. However,
since one issue on appeal turns on the timing of the motion for
the judgment as a matter of law, we use the older terms
“directed verdict” and “judgment notwithstanding the verdict”
for convenience and clarity.

? The jury awarded Doug Rankin $1,000,000 for intangible
damages, damage to personal reputation, and loss of past
income and earning potential. Victoria Rankin was awarded
$500,000 as damages for loss of consortium. The Rankins also
were awarded $500,000 as business damages.

®§ Plaintiffs contend that defendants failed properly to raise
probable cause as the ground for a JNOV on the § 1983 claim
because they did not assert that ground until their reply to
plaintiffs’ opposition to the motion for a JNOV. We reject this
argument.

On January 4, 1995 — the date on which defendants’ motions
for a JNOV, for remittitur, to alter and amend the judgment on

A-10

defendants were entitled to a JNOV on the § 1983 claim
because plaintiffs failed to demonstrate that Deputy
Evans acted with deliberate or callous indifference to
Doug Rankin’s constitutional rights, as required to sup-
port a § 1983 claim. On May 15, 1995, the district court
granted defendants’ motion for a JNOV on both the state
and federal claims on the ground that probable cause for
Rankin’s arrest and detention existed and constitutes an
absolute bar to plaintiffs’ claims. The Order also condi-
tionally denied defendants’ motion for a new trial and
denied their other motions as moot.

Plaintiffs appeal the grant of a JNOV in favor of
defendants on both counts. Defendants appeal the condi-
tional denial of the motion for a new trial and the denial
of their other motions as moot.

the state claim, and for a new trial were filed - defendants also
filed a motion for an extension of time in which to file addenda
to those motions. Confusion as to the district court’s position
regarding this request for an extension of time prompted the
district court to treat defendants’ February 28, 1995, reply to
plaintiffs’ opposition as an addendum to defendants’ original
motion for a JNOV. See March 16, 1995, Order (detailing the
procedural history regarding this matter). The Order explicitly
stated that plaintiffs were entitled to respond pursuant to the
Local Rules to defendants’ February 28, 1995, submission.
Certainly, it was well within the district court’s discretion to
treat defendants’ reply as an addendum to its original motion in
an attempt to remedy any procedural confusion resulting from
its Orders. Accordingly, we reject the assertion by plaintiffs that
probable cause was not raised in defendants’ motion for a JNOV
as a ground for relief.

III. Analysis

A. The Grant of a JNOV Was Not Procedurally
Barred

The first question we decide is whether the district
court’s grant of a JNOV in favor of defendants was pro-
cedurally barred. The Rankins correctly assert that Fed-
eral Rule of Civil Procedure 50(b) requires that a party
moving for a JNOV first must have made a timely and
proper motion for a directed verdict. See Wilson v. Atta-
way, 757 F.2d 1227, 1237 (11th Cir.1985). Federal Rule of
Civil Procedure 50(a)(2) states that such a motion “shall
specify .. . the law and the facts on which the moving
party is entitled to the judgment.” See also National Indus.,
Inc. v. Sharon Steel Corp., 781 F.2d 1545, 1548 (11th
Cir.1986). The Rankins note that defendants failed to state
specifically any ground for their motions for a directed
verdict —- much less the ground on which the Court later
granted a JNOV, ie., the existence of probable cause.
Therefore, the Rankins contend that defendants’ motions
for a directed verdict did not satisfy the specificity
requirement of Rule 50(a)(2), and that defendants’ motion
for a JNOV should have been denied as technically defi-
cient. See, e.g., Piesco v. Koch, 12 F.3d 332, 340-41 (2d
Cir.1993) (defendant’s motion for a directed verdict failed
to specify any grounds and thus was not sufficiently

informative to preserve defendant's right to move for a
JNOV); Purcell v. Seguin State Bank & Trust Co., 999 F.2d
950, 956-57 (Sth Cir.1993) (issue raised in a JNOV motion
that was not specifically raised in motion for a directed
verdict at close of evidence held waived); McCarty v.
Pheasant Run, Inc., 826 F.2d 1554, 1555-56 (7th Cir.1987)
(same).

A-12

Defendants argue that a rigid application of Rules
50(b) and 50(a)(2) is inappropriate where motions for a
directed verdict were timely made and the judge and
opposing counsel were aware of the legal and factual
bases of the motion despite the moving party’s failure to
state them explicitly. See, e.g., Stewart v. Thigpen, 730 F.2d
1002, 1006-07 n. 2 (5th Cir.1984) (stating that plaintiff’s
failure specifically to identify the grounds for his motion
for a directed verdict did not preclude a JNOV in his
favor where the trial court and defendants had actual
notice of the basis of the motion); Clarke v. O'Connor, 435
F.2d 104, 113 n. 15 (D.C.Cir.1970) (concluding that
although defendant’s motion for a directed verdict did
not explicitly assert the applicability of the statutory pro-
vision on which a JNOV later was based, it provided the
court and opposing counsel with sufficient notice to sat-
isfy Rule 50). Defendants assert that the trial court and
opposing counsel were aware that defendants’ motions
for a directed verdict were based upon the ground that
probable cause for Rankin’s arrest existed as a matter of
law and constituted an absolute defense to plaintiffs’
claims.

In support of this contention, defendants stress that it
was obvious throughout trial that the existence of proba-
ble cause was the central issue in the case. Defendants

note that on the day before they made their motions for a
directed verdict, they submitted a trial memorandum
briefing the issue of probable cause. The trial judge
referred to this memorandum and specifically alluded to
a probable cause case that was discussed therein in deny-
ing defendants’ motion for a directed verdict at the close
of plaintiffs’ case. The trial judge subsequently denied

A-13

defendants’ motion for a directed verdict at the close of
all evidence “on the basis previously announced at the
close of the plaintiffs’ case in chief.” Accordingly, defen-
dants argue, since it was apparent to all involved that the
existence of probable cause was the basis for its motions
for a directed verdict, the district court did not err in
granting defendants’ motion for a JNOV on that ground.

This Circuit has looked to the purpose of Rule 50(b)
in determining what constitutes a motion for a directed
verdict sufficient thereafter to support a JNOV. See
National Indus., 781 F.2d at 1549-50 (noting that where
Rule 50(b)’s purpose — providing notice to the court and
opposing counsel of any deficiencies in the opposing
party’s case prior to sending it to the jury — has been met,
the Circuit “ha[s] taken a liberal view of what constitutes
a motion for directed verdict”).? See also Scottish Heritable
Trust v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th
Cir.) (stating that “[t]echnical noncompliance with Rule

° The Rankins cite Austin-Westshore Constr. Co. v. Federated
Dep't Stores, Inc., 934 F.2d 1217, 1222-23 (11th Cir.1991), in
support of their contention that Rules 50(b) and 50(a)(2) should
be strictly applied to bar the grant of a JNOV in this case. In
Austin, however, the ground on which the motion for a JNOV
was based had never been raised at trial. Thus, the trial court
could not rely upon the standard articulated in National
Industries in support of a grant of a JNOV because opposing
counsel and the trial court did not have actual notice as to any
“flaw” in the case prior to sending it to the jury. Unlike in
Austin, the grant of a JNOV in this case is justified by the fact
that the moving parties substantially complied with the
requirements of Rules 50(a)(2) and (b) because the court and
opposing counsel unquestionably had actual notice at trial of
the ground upon which the JNOV ultimately was granted.

A-14

50(b) may be excused in situations in which the purposes
of the rule are satisfied”), cert. denied, __ U.S. __, 117
S.Ct. 182, 136 L.Ed.2d 121 (1996); Parkway Garage, Inc. v.
City of Philadelphia, 5 F.3d 685, 691 (3rd Cir.1993) (conclud-
ing that defendants’ motions for a directed verdict were
sufficient to support a JNOV where the court and oppo-
sing counsel had actual notice of the basis_of the motion
even though it was only implicitly raised by defendants’
motions). A party is obliged to make a motion for a
directed verdict at the close of the evidence as a prerequi-
site to a motion for JNOV to ensure that neither the court
nor the opposing party is “lulled into complacency” con-
cerning the sufficiency of the evidence. National Indus.,
781 F.2d at 1549. See also Scottish Heritable, 81 F.3d at 610
(stating that “the two basic purposes of [Rule 50(b)] are
‘to enable the trial court to re-examine the question of
evidentiary sufficiency as a matter of law if the jury
returns a verdict contrary to the movant, and to alert the
opposing party to the insufficiency before the case is
submitted to the jury’ ”) (internal citation omitted).
Requiring a motion for a directed verdict prior to submit-
ting the case to the jury ensures that the court and the
opposing party will be alerted to any sufficiency prob-
lems at a stage when such deficiencies might be
remedied.

The same purpose underlies the specificity require-
ment of Rule 50(a)(2). Accordingly, where the trial court
and all parties actually are aware of the grounds upon
which the motion is made, strict enforcement of the speci-
ficity requirement of Rule 50(a)(2) is unnecessary to serve
the purpose of the rule.

A-15

The record shows that the trial court and plaintiffs’
counsel were aware that the asserted existence of proba-
ble cause formed the basis of defendants’ motions for a
directed verdict. That issue was the central question in
the case; defendants submitted a trial memorandum on
that issue on the day prior to making their motions for a
directed verdict; and the trial judge referred to that mem-
orandum, and more specifically to a particular probable
cause case, in making his rulings on defendants’ motions
for a directed verdict. Accordingly, we conclude that
defendants’ motions for a directed verdict were sufficient
to support their subsequent motion for a JNOV.

B. Probable Cause as the Ground for the Entry of a
JNOV
1. The Relevance of the Arresting Officer’s Sub-
jective Belief in the Arrestee’s Guilt to the
Existence of Probable Cause

We now turn to plaintiffs’ argument that Florida law
requires an arresting officer to believe subjectively in the
guilt of an arrestee in order to have probable cause for
the arrest. Under this view of the law, the Rankins con-
tend that a reasonable jury could have concluded that
Deputy Evans did not subjectively believe in Rankin’s
guilt and, thus, that he did not have probable cause to
arrest Rankin. They further argue that such an arrest
would have exceeded state authority, thus violating
Rankin’s Fourth Amendment rights and rendering defen-
dants liable for that violation pursuant to 42 U.S.C.
§ 1983. Defendants counter that no such subjective belief
requirement exists under Florida law. We conclude that

A-16

neither Florida nor federal law requires that a police
officer actually have a subjective belief in the guilt of the
person arrested.

This Circuit has concluded that the standard for
determining the existence of probable cause is the same
under both Florida and federal law - whether “ ‘a reason-
able man would have believed [probable cause existed]
had he known all of the facts known by the officer.’ ”
United States v. Ullrich, 580 F.2d 765, 769 (5th Cir.1978)
(quoting State v. Outten, 206 So.2d 392, 397 (Fla.1968)).!°
See also United States v. McDonald, 606 F.2d 552, 553 n. 1
(5th Cir.1979) (per curiam) (stating that “Florida’s stan-
dard of probable cause for a lawful arrest is the same as
that required by the Fourth Amendment”); Wright v.
State, 418 So.2d 1087, 1094 (Fla. lst DCA 1982) (conclud-
ing that the Florida standard for probable cause is no
more restrictive than the federal standard and is in effect
a mirror image of that standard). Furthermore, prior to its
adoption of the proposition that the state and federal
probable cause standards are identical, this Circuit explic-
itly rejected the idea that the subjective belief of the
arresting officer is relevant to the determination of
whether probable cause exists. See United States v. Clark,
559 F.2d 420, 425 (5th Cir.) (stating that “even if the
officers felt that probable cause was lacking, an objective
standard would still be applicable”), cert. denied, 434 U.S.
969, 98 S.Ct. 516, 54 L.Ed.2d 457 (1977); United States v.

10 All decisions issued by the former Fifth Circuit prior to
October 1, 1981, have been adopted as binding precedent for the
Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir.1981) (en banc).

A-17

Resnick, 455 F.2d 1127, 1132 (5th Cir.1972) (concluding
that probable cause existed and “the scope of the Fourth
Amendment is not determined by the subjective conclu-
sion of the law enforcement officer”).!! Finally, relying on

1! We here address plaintiffs’ citation of several decisions
which they contend establish that an officer must subjectively
believe that a crime has been committed and that the suspect
committed it in order for probable cause to exist. See Spicy v.
City of Miami, 280 So.2d 419, 421 (Fla.1973) (stating that an
officer “must have . . . ‘substantial reason’ and must ‘believe’
from observation and evidence at the point of arrest” that the
person was guilty); Osborne v. State, 87 Fla. 418, 100 So. 365, 366
(1924) (officer has probable cause to arrest “any person whom
such officer has reasonable ground to believe, and does believe,
has committed any felony”); City of Hialeah v. Rehm, 455 So.2d
458, 461 (Fla. 3d DCA 1984) (reversing a directed verdict in
favor of defendant on false arrest and imprisonment claims,
because “jury issues were presented as to a) whether, when he
placed [the suspect] under arrest, [the arresting officer] in fact
himself believed that the offense . . . had been committed ... ;
and b) whether, if so, there was a reasonable basis for that belief
in the circumstances he observed”); Donner v. Hetherington, 399
So.2d 1011, 1012 (Fla. 3d DCA 1981) (same). We note that
Osborne and Spicy were decided prior to the Eleventh Circuit
authority described in the text above which rejects the
proposition that there is a subjective element to a probable cause
analysis. We must therefore presume that this Circuit
considered Osborne and Spicy in the decisions which collectively
rejected that proposition. We are bound by this precedent
because “a prior decision of the circuit (panel or en banc)
[cannot] be overruled by a panel but only by the court sitting en
banc.” Bonner, 661 F.2d at 1209.

Both Donner and Rehm, which are state appellate-level
decisions decided after the referenced Eleventh Circuit
authority, cite Spicy as their sole authority for the proposition
that there is a subjective element to the state probable cause
analysis. Donner, 399 So.2d at 1012; Rehm, 455 So.2d at 461. As

A-18

its own precedent dating back to 1973, the Supreme Court
recently stated: “Subjective intentions play no role in

noted, this Circuit has concluded that Spicy does not stand for
the proposition for which plaintiffs cite it.

However, even.if we were not so bound, we would not
conclude that the cases cited by plaintiffs establish that there is a
subjective element to the probable cause analysis under Florida
law. Our research indicates that no other Florida appellate
jurisdiction has joined the Third District’s adoption of an
explicit two-part probable cause analysis requiring an officer
subjectively to believe that probable cause exists and have a
reasonable basis for that subjective belief. The other
jurisdictions appear to rely on an objective standard: probable
cause exists when “the totality of the facts and circumstances
within the officer’s knowledge would cause a reasonable person
to believe that an offense has been committed and that the
defendant is the one who committed it.” Revels v. State, 666
So.2d 213, 215 (Fla. 2d DCA 1995); see also Florida Game and
Freshwater Fish Comm'n v. Dockery, 676 So.2d 471, 474 (Fla. 1st
DCA 1996); Millets v. State, 660 So.2d 789, 791 (Fla. 4th DCA
1995); LeGrand v. Dean, 564 So.2d 510, 512 (Fla. 5th DCA 1990).
But see LeGrand, 564 So.2d at 513 (Griffin, J., specially
concurring) (citing Donner and Spicy for the proposition that an
officer must “actually have a belief that a crime was committed
and that the people he proposes to arrest perpetrated the
crime”). Finally, the Florida Supreme Court again defined the
test for probable cause in objective terms after Donner. See Blanco
v. State, 452 So.2d 520, 523 (Fla.1984) (“The probable cause
standard for a law enforcement officer to make a legal arrest is
whether the officer has reasonable grounds to believe the
person has committed a felony.”), cert. denied, 469 U.S. 1181, 105
S.Ct. 940, 83 L.Ed.2d 953 (1985). Thus, Donner and Rehm do not
represent any significant shift in Florida law that would affect
this Circuit’s conclusion that the subjective belief of the
arresting officer plays no role in a probable cause analysis under
either Florida or federal law.

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ordinary, probable-cause Fourth Amendment analysis.” !?
Whren v. United States, 517 U.S. 806, __, 116 S.Ct. 1769,
1774, 135 L.Ed.2d 89 (1996). Thus, when this Circuit con-
cluded that state and federal probable cause standards
are identical, it was clearly established under federal law
that there was no subjective belief requirement. No sub-
jective belief requirement exists under either state or
federal law.'*

12 The Court also stated: “Not only have we never held,
outside the context of inventory search or administrative
inspection ..., that an officer’s motive invalidates objectively
justifiable behavior under the Fourth Amendment; but we have
repeatedly held and asserted the contrary.” Whren, 517 U.S. at
__, 116 S.Ct. at 1774; see also United States v. Villamonte-Marquez,
462 U.S. 579, 584 n. 3, 103 S.Ct. 2573, 2577 n. 3, 77 L.Ed.2d 22
(1983) (rejecting the contention that an ulterior motive might
strip officers of their legal justification for an otherwise lawful
warrantless boarding of a ship); Scott v. United States, 436 U.S.
128, 136-38, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978) (rejecting
the contention that the Fourth Amendment required the
exclusion of certain wiretap evidence and accepting the
government's position that “[s]ubjective intent alone . . . does
not make otherwise lawful conduct illegal or unconstitutional”);
United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d
427 (1973) (characterized by Scott, 436 U.S. at 136-38, 98 S.Ct. at
1723, as holding that “the fact that the officer does not have the
state of mind which is hypothecated by the reasons which
provide the legal justification for the officer’s action does not
invalidate the action taken as long as the circumstances, viewed
objectively, justify that action”).

13 Plaintiffs also cite Tillman v. Coley, 886 F.2d 317, 321 (11th
Cir.1989), as providing support for the existence of a subjective
element to the probable cause analysis. In that case we
concluded that a reasonable officer would investigate serious
doubts regarding the identity of a suspect prior to arrest, and
held that no “reasonable law enforcement officer may conclude

A-20

2. The Existence of Probable Cause

The Rankins assert that the trial court erred in grant-
ing a JNOV in favor of defendants because a reasonable
jury could have concluded that the arresting officer, Dep-
uty Evans, did not have probable cause to arrest or detain
Doug Rankin. Defendants contend that the trial court was
correct in ruling that Evans had probable cause to arrest
Rankin as a matter of law. We conclude that probable
cause to arrest Rankin existed as a matter of law, and,
accordingly, we affirm the trial court’s grant of a JNOV in
favor of defendants.

In determining whether a JNOV was properly
granted, we apply the same standard as the district court.
Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989).
Resolving all the factual disputes and drawing all logical
inferences in favor of the nonmoving party, we determine
whether these facts and inferences so strongly favor one
party “that reasonable people, in the exercise of impartial
judgment, could not arrive at a contrary verdict.” Bailey v.
Board of County Comm'rs of Alachua County, 956 F.2d 1112,
1119 (11th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121
L.Ed.2d 58 (1992). If so, the motion was properly granted.
We must also keep in mind, however, that a “mere scin-
tilla of evidence does not create a jury question; there
must be a substantial conflict in evidence to create a jury
question.” Id.

that . . . an arrest [may be] made for the sole purpose of
identifying a suspect.” Id. Plaintiffs’ use of this limited holding
in support of a subjective belief requirement is unpersuasive in
light of Eleventh Circuit and Supreme Court precedent.

A-21

As noted, the trial court granted a JNOV in favor of
defendants on the ground that the arresting officer had
probable cause to arrest Rankin as a matter of law. Since
probable cause constitutes an absolute bar to both state
and § 1983 claims alleging false arrest, the remaining
question for us to address is whether the trial court
correctly concluded that probable cause did exist as a
matter of law. Ortega v. Christian, 85 F.3d 1521, 1525 (11th
Cir.1996) (probable cause constitutes an absolute bar to a
§ 1983 claim alleging false arrest); Bolanos v. Metropolitan
Dade County, 677 So.2d 1005, 1005 (Fla. 3d DCA 1996)
(“[P]robable cause is a complete bar to an action for false
arrest and false imprisonment.”) (per curiam). Accord-
ingly, “we . . . must evaluate [the] facts and inferences
according to the legal standard for probable cause.” Bai-
ley, 956 F.2d. at 1119.

As has been discussed, the standard for determining
whether probable cause exists is the same under Florida
and federal law. McDonald, 606 F.2d at 553 n. 1. In order
for probable cause to exist, “an arrest [must] be objec-
tively reasonable under the totality of the circumstances.”
Bailey, 956 F.2d at 1119; see also State v. Scott, 641 So.2d
517, 519 (Fla. 3d DCA 1994). This standard is met when
“the facts and circumstances within the officer’s knowl-
edge, of which he or she has reasonably trustworthy
information, would cause a prudent person to believe,
under the circumstances shown, that the suspect has com-

”

mitted, is committing, or is about to commit an offense.
Williamson v. Mills, 65 F.3d 155, 158 (11th Cir.1995); see also
Elliott v. State, 597 So.2d 916, 918 (Fla. 4th DCA 1992).
“Probable cause requires more than mere suspicion, but
does not require convincing proof.” Bailey, 956 F.2d at

A-22

1120; see also Scott, 641 So.2d at 519 (“[T]he facts neces-
sary to establish probable cause need not reach the stan-
dard of conclusiveness and probability as the facts
necessary to support a conviction.”). In determining
whether probable cause exists, “ ‘we deal with proba-
bilities . . . [which] are the factual and practical consider-
ations of everyday life on which reasonable and prudent
men, not legal technicians, act.’ ” Revels, 666 So.2d at 215
(quoting Illinois v. Gates, 462 U.S. 213, 229-31, 103 S.Ct.
2317, 2328, 76 L.Ed.2d 527 (1983)).

An arresting officer is required to conduct a reason-
able investigation to establish probable cause. See Tillman,
886 F.2d at 321; see also Harris v. Lewis State Bank, 482
So.2d 1378, 1382 (Fla. Ist DCA 1986) (“Where it would

‘

appear to a ‘cautious man’ that further investigation is
justified before instituting a proceeding, liability may
attach for failure to do so, especially where the informa-
tion is readily obtainable, or where the accused points out
the sources of the information.”). An officer, however,
need not take “every conceivable step .. . at whatever
cost, to eliminate the possibility of convicting an innocent
person.” Tillman, 886 F.2d at 321; see also State v. Riehl, 504
So.2d 798, 800 (Fla. 2d DCA 1987) (“In order to establish
the probable cause necessary to make a valid arrest, .. . it
is not necessary to eliminate all possible defenses.”). Fur-
thermore, once an officer makes an arrest based upon
probable cause, he “need not ‘investigate independently
every claim of innocence.’ ” Tillman, 886 F.2d at 321 (inter-
nal citation omitted). Probable cause is “judged not with

clinical detachment but with a common sense view to the
realities of normal life.” Marx v. Gumbinner, 905 F.2d 1503,

A-23

1506 (11th Cir.1990) (internal citation omitted); see also
Revels, 666 So.2d at 215.

The only difference in the probable cause analysis
applicable to the state and federal claims at issue here is
which party carried the burden of proving whether prob-
able cause existed. The existence of probable cause consti-
tutes an affirmative defense to the claims of false arrest
and imprisonment under Florida law. See Bolanos, 677
So.2d at 1005 (probable cause bars a state claim for false
arrest or false imprisonment); DeMarie v. Jefferson Stores,
Inc., 442 So.2d 1014, 1016 n. 1 (Fla. 3d DCA 1983) (“[T]he
existence of probable cause is a part of the defense to a
false arrest action which must be shown by the defen-
dant.”). Accordingly, defendants had the burden of dem-
onstrating the existence of probable cause as a defense to
the state claim. However, plaintiffs had the burden of
demonstrating the absence of probable cause in order to
succeed in their § 1983 claim. Evans v. Hightower, 117 F.3d
1318, 1320 (11th Cir.1997) (“In order to establish a Fourth
Amendment violation, [plaintiff] must demonstrate that a
seizure occurred and that it was unreasonable.”); see also
Rivas v. Freeman, 940 F.2d 1491, 1496 (11th Cir.1991) (“To
successfully litigate a lawsuit for deprivation of constitu-
tional rights under 42 U.S.C. section 1983, a plaintiff must
show violation of a constitutionally protected liberty or
property interest and deliberate indifference to constitu-
tional rights.”). We conclude that probable cause existed
as a matter of law and that the existence of such probable
cause defeats both the federal and state claims.

The Rankins first assert that the evidence on which
Deputy Evans relied in making the arrest either exone-

rated Doug Rankin or was not sufficiently trustworthy or

A-24

reliable to support a finding of probable cause. They
assert that the medical evidence of which Evans was
aware compelled the conclusion that Rankin was not
Amber’s abuser because it suggested that the charged
conduct had occurred prior to Rankin’s first contact with
the child. They also contend that the physical evidence
exonerated Rankin because he could not physically have
committed the acts of which he was accused in the loca-
tion identified by the victim. Additionally, the Rankins
contend that Rankin’s lack of access to Amber defeated
probable cause for his arrest, especially in light of the fact
that Evans knew that another male, one of Dr. Brake’s
coworkers, had had access to Amber during a time frame
consistent with the medical evidence suggesting penetra-
tion.

The Rankins also contend that Evans should not have
relied on Amber’s or Dr. Brake’s statements about possi-
ble abuse when determining probable cause. They claim
that Amber’s statements regarding abuse were unreliable
because of: (1) her age; (2) inconsistencies regarding the
identity of the abuser, the number of times the abuse
occurred, and the location and timing of the abuse; (3) the
possibility that Dr. Brake, a child psychologist, concocted
the story that Amber spontaneously told her about the
abuse and that Dr. Brake’s coaching resulted in Amber’s
subsequent statements; and (4) the possibility that the
police officers’ questions during their interview with
Amber led her into making statements that she would not
otherwise have made. They further contend that Evans
should have viewed Dr. Brake’s statements with consid-
erable skepticism because he should have known that Dr.
Brake was biased against Rankin due to their argument

aN a re ee ras

A-25

regarding the school’s supervision of the children under
its care. They also seem to suggest that Evans should
have considered the possibility that either Dr. Brake or
somebody she was protecting committed the abuse.
Accordingly, they conclude that Evans should have
placed little weight on Dr. Brake’s comments regarding
Amber’s behavior and statements.

Finally, the Rankins argue that, at the very least, the
information available to Evans at the time of the arrest
should have created doubts as to the existence of proba-
ble cause and should have prompted further investiga-
tion. The Rankins claim that Evans should have examined
the playground equipment to determine whether Rankin
could have abused Amber on the steps of that equipment
as her statements indicated. They also argue that Evans
should have interviewed the teachers regarding Amber’s
behavior at school and Rankin’s degree of access to
Amber. Although the Rankins contend that this investiga-
tion should have been done prior to arresting Rankin,
they further assert that it certainly should have been
done after Rankin raised concerns regarding these issues
during his interview with the police. Plaintiffs contend
that such additional investigation was especially impor-
tant here because time was not of the essence in making
an arrest since the school was going to be closed over the
Thanksgiving holidays, limiting Rankin’s access to the
children.

Defendants counter that Evans’s conclusion that
probable cause existed to arrest Rankin was well-sup-
ported by the evidence available to him at the time of

Rankin’s arrest and detention. Defendants note that

A-26

Evans interviewed Amber, Dr. Brake, and Dr. Drum-
mond, all of whom provided information supporting the
conclusion that Rankin had abused Amber.

Defendants also contend that Evans’s interviews with
Amber and her mother, his conversation with Dr. Drum-
mond, and his interrogation of Rankin in which Rankin
made several damaging statements constituted a reason-
able investigation and provided trustworthy and reliable
information from which he could conclude that probable
cause existed both at the time of arrest and during
Rankin’s subsequent detention. They further contest
plaintiffs’ assertion that time was not of the essence in
making the arrest. They note that had Rankin not been
arrested on the morning of November 23, he would have
had access to the children at the school for the entire day.

We conclude that the investigation conducted by
Evans was reasonable and that the evidence on which he
based his decision to arrest Rankin was sufficient to
create probable cause as a matter of law. We also con-
clude that the statements made by Rankin after his arrest
did not defeat the existence of probable cause or necessi-
tate immediate further investigation.

a. The Medical Evidence

We now address plaintiffs’ assertion that the medical
evidence available to Evans precluded the existence of
probable cause to arrest Rankin for the crime with which
he was charged. The Rankins note that penetration is an
element of the crime of sexual abuse of a child under
twelve. See § 794.011 Fla. Stat. (1987). Resolving all factual

ee

A-27

disputes in favor of the plaintiffs, we must conclude that
Evans knew that the injury suggesting such penetration
had been incurred at least two weeks before the date of
Dr. Drummond’s examination and that Evans knew that
Amber had attended Sugar Plum for just two weeks. We
also must conclude that Dr. Brake told Evans that Amber
had told her that abusive behavior had occurred on
November 21, 1988, a date which seemingly conflicts with
the medical evidence that penetration (if only partial) had
occurred at least two weeks prior to that date.!4 Accord-
ingly, the question to be answered is whether a prudent
person faced with such information could reasonably

have believed that Rankin committed the offense.

In addition to that information, however, Deputy
Evans also knew that Amber had sustained a fresh abra-
sion within 24 hours of the November 21, 1988, medical
examination which could have been caused by a finger-
ing of the genital area. During her videotaped interview,
Amber indicated that abusive incidents occurred on more
than one occasion. Thus, Amber’s statements and the

medical evidence both suggested that more than one

'4 The parties disputed this at trial. Evans testified that Dr.
Brake told him that the date on which Amber told her about the
incident with Ba Ba Blue was November 21, but that Dr. Brake
gave him a time frame of November 7 to November 21 during
which the actual incident or incidents of abuse could have
occurred. Plaintiffs confronted Evans at trial with his arguably
conflicting deposition testimony in which he indicated that Dr.
Brake told him that Amber said that the abuse occurred on
November 21, 1988. In light of this conflicting evidence, we
must accept plaintiffs’ assertion as true.

- A-28

instance of abuse occurred, and a prudent officer reason-
ably could have concluded that a single individual, rather
than two separate individuals, was responsible for the
alleged abuse. Furthermore, an officer reasonably could
have concluded that Rankin was that individual.

Evans knew that Amber consistently had called her
alleged abuser Ba Ba Blue and repeatedly linked the
alleged abuse to the school. He knew that Rankin was the
only person whom Amber called by that name. Amber
repeatedly referred to her abuser as a “he,” and Dr. Brake
told Evans that Rankin was the only male who had access
to Amber during the approximately two-week period
which was consistent with all of the medical evidence.!5
Dr. Brake also informed Deputy Evans that, after Amber
started school at Sugar Plum, her behavior and language
had changed in ways which Evans knew to be consistent
with sexual abuse.

Plaintiffs assert that even if the abuse could have
occurred on the first day on which Amber attended Sugar
Plum, which would have placed the incident involving
penetration within a time frame consistent with Rankin’s

'S Amber attended Sugar Plum for two weeks, and Dr.
Drummond indicated that the injury suggesting penetration
was at least two weeks old. Thus, accepting as true that Evans
knew of Dr. Drummond ’s time line, an overlap of approximately
a day existed during which a cautious officer reasonably could
have concluded that Rankin could have committed the charged
offense. We further note that an officer reasonably could have
concluded that the time frame given by the doctor was an
estimate and not necessarily a strict cut-off point, thus possibly
expanding the window of opportunity by a reasonable period of
time.

A-29

guilt, Evans knew that Amber had stated that abuse had
occurred on November 21, 1988, which was clearly incon-
sistent with the medical time frame for the act of penetra-
tion. However, the relevant question is whether a prudent
officer reasonably could have believed that Rankin com-
mitted the offense in light of the medical evidence sug-
gesting that any penetration had to have happened
significantly before November 21, 1988, and Dr. Brake’s
statement that Amber indicated that the abuse occurred
on November 21, 1988.

In light of the evidence suggesting multiple incidents
of abuse, a prudent officer reasonably could have
believed that, in recounting her story to her mother,
Amber might not have distinguished between penetra-
tion and simple fingering or rubbing. Thus, in recounting
the abuse she could have conflated the incidents or con-
fused the dates, or, in talking to her mother, she could
have been referring to the conduct which may have
resulted in the abrasion. A cautious officer, therefore,
reasonably could have believed that multiple incidents of
abuse occurred and that the abuse with which Rankin
was charged occurred within the first few days of school
~ which was within the medically permissible time frame.
Accordingly, a reasonable jury could not have concluded
that the medical evidence defeated probable cause to
arrest Rankin.

b. Access
The Rankins next assert that, even if the medical
evidence does not conclusively defeat probable cause,
Rankin’s lack of access to Amber while she was at school

A-30

does. They contend that, had Evans interviewed any of
the teachers before arresting Rankin, he would have real-
ized that Rankin was never alone with Amber and, thus,
could not have abused her. Plaintiffs further note that it is
uncontested that Rankin informed Evans of his lack of
access to Amber during questioning after he was
arrested. They thus contend that Evans knew or should
have known that Rankin was never alone with Amber
and that he therefore lacked the opportunity to have
committed the crime charged.

Defendants counter that Deputy Evans knew that
Rankin was present at the school during the relevant time
frame and that he moved freely throughout the school.
Evans also knew that Dr. Brake had observed what she
perceived to be a lack of adequate supervision of the
children. Finally, defendants contend that a reasonable
officer could have concluded that the abuse - partial
penetration by a finger and rubbing of Amber’s genitalia
- could have occurred with others in the room if the
abuser had his body between any other adult and the
child and he simply slipped his hand down the front of
Amber’s pants or skirt.!©

‘6 The Rankins note that, in Amber's videotaped interview,
she indicated that Ba Ba Blue touched her with both a finger and
a plastic spoon. The Rankins assert that a reasonable officer
could not possibly believe that Rankin could penetrate Amber
with a spoon with other adults in the same room, since such an
action undoubtedly would have been painful and caused
Amber to make some sort of outcry. However, a cautious officer
could have reasonably concluded that the facts available to him
at the point of arrest supported at least Amber's contention that
Rankin digitally penetrated her. Although further investigation
may have been required in order to determine whether the

A-31

Additionally, the teachers whom Rankin argues that
Evans should have interviewed were employed by
Rankin and thus would have been of questionable cred-
ibility.'7 A cautious officer certainly could have reason-
ably concluded that, even if the teachers were to have
stated that Rankin had no access to Amber, such testi-
mony would be so undercut by the witnesses’ bias in
favor of their employer and their own self-interest in
asserting that they were always aware of Amber’s move-
ments — such supervision being one of their job respon-
sibilities — that it would not defeat the existence of
probable cause in light of the other evidence suggesting
Rankin’s guilt. Finally, interviewing those witnesses prior
to picking up Rankin might have alerted him to his
possible arrest and, conceivably, precipitated his flight. In
light of all of these considerations, a reasonable jury

spoon incident could be verified, a reasonable officer could
conclude that he had sufficient evidence to proceed on the
digital penetration allegation and that time was of the essence
considering Rankin’s position as the owner of a day care center.
Furthermore, a prudent officer could reasonably conclude that
Amber’s statements regarding digital penetration — which she
made on several separate occasions and stated in her own
words — were more reliable than her single reference to possible
penetration by a spoon —- which she referred to only in response
to a question by Evans.

'7 Rankin also asserts that one of the teachers would have
told Evans that she saw Amber rubbing her vagina on
November 21. However, we note that a prudent officer who had
such information reasonably could have believed that a child
would not have rubbed herself so hard as to cause an abrasion.

Thus, such information, even had it been credible and had
Evans known it, would not have defeated the existence of
probable cause.

A-32

could not have concluded that a prudent officer could not
have reasonably believed that Rankin had sufficient
access to Amber to have committed the crime charged.

The Rankins further assert that the physical evidence
contradicted Amber’s account of events and that those
contradictions defeated probable cause. The Rankins
argue that Amber’s contention that she was abused by Ba
Ba Blue on the steps of playground equipment at the
school simply could not have been true because Rankin
physically could not have performed the actions she
described at that location. They contend that a reasonable
jury could have concluded that the playground equip-
ment steps were too small for a man of Rankin’s size to
enter and that the slats on the sides of the equipment
were too narrow to permit him to reach into the equip-
ment from the outside. The Rankins also assert that a
reasonable jury could have determined that Evans did
not examine the playground equipment to determine
whether Amber’s account of the abuse was consistent
with the physical evidence. Assuming this to have been
true, the question is whether a prudent officer reasonably
could have believed, in light of all the evidence known to
him, that Rankin was guilty of sexually abusing Amber.

We conclude that a cautious officer reasonably could
have believed that, even if Amber’s story was inaccurate
as to the precise location of the abuse, the core of her
story regarding the abuse and the identity of the abuser
was trustworthy and reliable, especially in light of the
medical and other evidence corroborating her story. See
Easton v. City of Boulder, 776 F.2d 1441, 1449-50 (10th
Cir.1985), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93
L.Ed.2d 28 (1986). -

*
a
wi
BY
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A-33

Furthermore, a prudent person reasonably could
have believed that the abuse happened in the approxi-
mate area of the playground equipment, if not actually on
it. Amber stated on the audiotape that, after Ba Ba Blue
made “a hole in [her] bottom,” he put her “back on the
playground.” In the videotaped interview, she said that
the abuse took place outside the school. In response to a
question from Evans asking whether it was on the play-
ground, she said “yeah.” In response to the question of
whether it was on a piece of a toy, she said “no.” She said
that the incident took place on the steps. Interpreting the
physical evidence in light of the statements by the victim,
it would not be unreasonable for a prudent person to
conclude that a three-and-a-half-year-old might either
unclearly articulate the location of the abuse or conflate
the idea of being put back on the playground after being
abused with the idea of where the abuse actually
occurred. Additionally, since Amber did not actually state
that the abuse occurred on the steps of the playground
equipment, there is no reason why a reasonable officer
would have to have concluded that Rankin’s inability to
commit the alleged act on the playground equipment
obviated probable cause. Finally, we note that Amber
stated that the abuse occurred both inside and outside the
schoolhouse, so the fact that Rankin apparently could not
have abused Amber on the playground equipment does
not affect the possibility that he abused her in the school-
house. In light of all of the evidence, we conclude that a
reasonable jury could not have concluded that Rankin’s
alleged lack of access to Amber defeated probable cause.

A-34

c. The Victim's Statements

Next, we address the Rankins’ contentions that the
only information available to Deputy Evans suggesting
that Rankin was the perpetrator of any abuse ultimately
was based upon statements made by Amber, and that
those statements were not sufficiently reliable and trust-
worthy to support the existence of probable cause. Defen-
dants contend not only that Amber’s statements were
sufficiently reliable and trustworthy to support probable
cause, but also that Evans was prohibited from simply
disregarding such statements based upon the age of the
victim. We conclude that evidence other than Amber’s
statements supported the conclusion that Rankin likely
was the perpetrator of the charged conduct. We also
conclude that Evans was entitled to rely to a meaningful
degree on Amber’s statements in determining the exis-
tence of probable cause, and that those statements sup-
ported probable cause.

As noted, Amber’s statements did not constitute the
only evidence suggesting that Rankin was the person
who had abused her. The medical evidence was consis-
tent with two separate episodes of abuse — partial pene-
tration which dated back at least two weeks prior to
November 21, and either rubbing or fingering of the
genitalia which occurred within 24 hours of Dr. Drum-
mond’s examination of Amber. Dr. Brake indicated to
Evans that she and the school staff were the only people
with access to Amber during the two-week period cover-
ing both potential incidents of abuse.

Furthermore, a cautious person reasonably could
have believed that Dr. Brake was unlikely either to have

aca sa

A-35

been the abuser or to have been protecting someone else
whom she knew to be the abuser since she — at a point at
which no one else knew that any abuse might have
occurred — told a friend that she thought that Amber had
been abused, took her to a pediatrician to have her exam-
ined for abuse, and promptly informed the police of the
suspected abuse. A prudent person reasonably could
have concluded that one who was guilty of, or complicit
in, abusive conduct would not spontaneously decide
aggressively to volunteer information to people in a posi-
tion to take prosecutorial action regarding potential
abuse and insist that such action be taken.

Thus, having concluded that Dr. Brake was unlikely
to have been responsible for the alleged abusive inci-
dents, a cautious person reasonably could have believed
that the perpetrator was someone at the school.!* This
conclusion was further supported by Dr. Brake’s state-
ment that Amber started exhibiting behavioral changes
within a week of beginning her attendance at Sugar
Plum. These behavioral changes included unusual clingi-
ness, an abnormal aversion to attending school, and atyp-
ical shyness. A seasoned officer reasonably could have
concluded that these behavioral changes were consistent
with sexual abuse and linked that abuse to the school.!?

i8 Although Evans knew that a male coworker of Dr.
Brake’s had had access to Amber approximately three weeks
prior to the medical examination, that person had not had
access to her during the two-week period potentially covering
the occurrences resulting in both the damage to the hymen and
the fresh abrasion.

19 The Rankins contend that if Evans had interviewed the
teachers, they would have told him that Amber exhibited no

A-36

Having narrowed the class of likely suspects to the
school house, information provided by Dr. Brake sug-
gested that Rankin was the guilty party. Dr. Brake told
Evans that, on the day Amber informed her of the abuse,
she saw Rankin pick up Amber and that Amber hit him.
A prudent officer reasonably could have found this infor-
mation to be relevant to the probable cause determination
in two ways: (1) as Evans testified, an abuser often shows
a special interest in a child whom he is abusing, and
Rankin’s particular attention to Amber in a class of
approximately 120 might indicate such a special interest;

behavioral changes, appeared to be happy at school, and even
started to misbehave at the end of the day when she had to leave
school. However, a cautious officer reasonably could have
concluded that any potential statements by the teachers
regarding Amber’s behavior would not have been particularly
probative considering their limited experience with Amber,
particularly in light of the fact that her mother, who clearly
knew her very well, indicated that such changes had occurred.

The Rankins also contend that Evans knew that Amber and
her family had just moved, that she had been repeatedly moved
to new preschools, and that her mother had been paying a lot of
attention to Amber’s younger brother because of his severe
illness. They argue that - knowing about those family
circumstances - a cautious officer would not have given
significant weight to any behavioral changes. However, we
conclude that a cautious officer reasonably could have believed,
in light of the knowledge that Amber had frequently moved to
new preschools and that her brother’s health problems were
apparently chronic, that Amber had faced such strains before
and that her mother was presumably aware of her child’s
typical reactions to such ongoing problems. Dr. Brake, however,
had nonetheless concluded that Amber’s behavior was unusual
and reported that conclusion to Evans. A reasonable officer
acting cautiously could have given significant weight to her
evaluation of her child’s behavior.

pis Joi aman haar

A-37

and (2) the hostility Amber demonstrated towards Rankin
by striking him was not typical of her behavior towards
adults, as indicated by her mother, suggesting that
Rankin had done something to prompt such a reaction.

In addition to this independent evidence linking
Rankin to the abuse, Evans relied on Amber’s statements
to both her mother and the police in determining that
probable cause existed to arrest Rankin. As noted above,
the essential question regarding Amber’s statements is
whether they were sufficiently reliable and trustworthy
to support a determination of probable cause. We con-
clude as a matter of law that a prudent person reasonably
could have believed that the fundamental information
provided by Amber’s statements was sufficiently reliable
and trustworthy to consider in determining the existence
of probable cause.

Generally, an officer is entitled to rely on a victim’s
criminal complaint as support for probable cause. See
Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d
Cit. 1995), cert. denied, US. 2, 316 SACU i676; 158
L.Ed.2d 779 (1996). The Rankins assert that Evans was not
entitled to so rely here because the victim’s age and
inconsistencies rendered her statements unreliable. We
conclude that, although a child victim’s statements must
be evaluated in light of her age, Amber’s statements -
considered along with the other supporting evidence -
were sufficiently reliable and trustworthy at their core to
form the basis for probable cause to arrest Rankin. See
Marx, 905 F.2d at 1506 (indicating that, although a four-
year-old’s age affected the weight due her statements, the
arresting officer could not simply disregard her state-

ments in determining whether probable cause existed);

A-38

Myers v. Morris, 810 F.2d 1437, 1456-57 (8th Cir.), cert.
denied, 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987);
Easton, 776 F.2d at 1450-51.

Next, we address the Rankins’ contention that Amber
never explicitly stated that Rankin or Mr. Doug abused
her. Instead, they note that she merely referred to her
abuser as Ba Ba Blue. However, they do not dispute that
Evans knew at the time of Rankin’s arrest that Rankin
was referred to by the children as Baba Loo. They also do
not contest that Amber in particular called Rankin Ba Ba
Blue, which was her pronunciation of Baba Loo. Amber
identified Ba Ba Blue as the culprit in both her first
statement regarding the abuse made to her mother and
the subsequent audiotaped statement. Dr. Brake told
Evans that Amber also had identified her alleged abuser
as Ba Ba Blue to Dr. Drummond. Furthermore, in the
videotaped interview of Amber, she ultimately responded
“Ba Ba Blue” to questions regarding the identity of her
abuser.?° In addition, Amber consistently referred to her

20 The Rankins assert that the videotaped statement in
which Amber identified “Ba Ba Blue” as her abuser
demonstrates the unreliability of her statements because she
initially answered “Donald Duck” and “Pluto” in response to
the question of who did the things to her which she described.
The Rankins assert that her identification of two cartoon
characters, followed immediately by her identification of Ba Ba
Blue as her abuser, precluded Evans from relying on her
statements for probable cause to arrest Rankin. However, a
prudent officer reasonably could conclude that Amber was
merely playing when she answered “Donald Duck” and
“Pluto,” but was being serious when she ultimately responded
Ba Ba Blue because: (1) she had repeatedly identified Ba Ba Blue
as the abuser in past statements and had never before

DN EAD NS, Be PR A

A-39

abuser as “he,” indicating that the offending individual
was a male. As noted above, the only people beside
Amber’s mother who appeared to have access to her were
the staff at Sugar Plum. In addition, Amber indicated that
all of her teachers were female, suggesting that Rankin
was the only male at Sugar Plum (a fact which Rankin
subsequently conceded during questioning). Accordingly,
we conclude that Amber’s statements provided sufficient
information for a cautious person reasonably to believe
that Amber was abused by someone called Ba Ba Blue,
and that other evidence indicated that Ba Ba Blue was
Rankin.

The Rankins also assert that inconsistencies in
Amber’s videotaped statement indicated that her state-
ments as a whole were unreliable. For instance, they note
that when Amber was questioned regarding the timing of
any abusive incidents, she stated that she had been
abused “today” — the date of the interview — but not on
the day before, the date on which she reported the inci-
dents to her mother and on which Dr. Brake told Evans

mentioned the first two characters; (2) she actually knew
someone who was referred to as Ba Ba Blue, unlike the other
characters; (3) she repeatedly referred to the person who abused
her as “he” and the person referred to as Ba Ba Blue was a male;
and (4) other corroborating evidence was consistent with abuse
by the individual identified as Ba Ba Blue. Thus, a cautious
officer reasonably could have concluded that Amber, when
referring to Ba Ba Blue, was referring to a real person as
opposed to a cartoon character. In light of the other evidence,
such an officer also reasonably could have concluded that
Rankin was Ba Ba Blue.

A-40

that Amber had indicated the abuse had occurred.?!
However, an officer as seasoned in the field of child
abuse as Deputy Evans reasonably could have discounted
Amber’s statements regarding the timing of the abuse
because of the fact that young children do not have a
particularly strong grasp of the concept of time, although
they are able to articulate more concrete concepts such as
events that have occurred or things that have happened
to them.??

The Rankins also point to several other comments by
Amber which they assert fatally undermine the reliability
of her statements.2> Although we acknowledge that a
stronger statement by the victim would be preferable
prior to arrest, we cannot conclude that a prudent officer
could not have reasonably relied on the fundamental
allegation consistently made by Amber: that a male

21 The Rankins also note the varying times which Amber
gave Dr. Drummond for the dates of the abuse as evidence that
Evans should not have relied on Amber’s statements. The
Rankins, however, have pointed to no evidence indicating that
Dr. Drummond relayed that information to Evans.

22 For example, Dr. Drummond testified that, in his
experience, children who were unable to fully grasp temporal
concepts were able accurately to-describe more concrete events
such as physical pain. A police officer such as Evans, with
formal training and extensive practical experience in child
abuse cases, would be aware of children’s difficulties with time,
and reasonably could have discounted those inconsistencies.

23 For instance, they note that Amber stated in the
videotaped interview that Dr. Drummond stuck a thermometer
in her bottom and that the testimony at trial showed that he did
not do so. However, the Rankins point to no evidence indicating
that Evans knew or should have known of this inconsistency at
the time of the arrest.

A-41

named Ba Ba Blue made a hole in her bottom at school.24
She made statements to this effect on at least four sepa-
rate occasions of which Evans was aware: to her mother,
to Dr. Drummond, on audiotape, and to him during the
videotaped interview.?> In light of the medical evidence
supporting the conclusion that abuse had occurred, Dr
Brake’s observations regarding Amber’s behavioral
changes, and her statements regarding the limited
number of people who had access to Amber during the
relevant time period, we conclude that Evans properly
relied on Amber’s statements in establishing the

*4 The Rankins contend that Amber’s assertion that the
abuser had stuck a finger in her bottom undercut the reliability
of her statement regarding the abuse because it was inconsistent
with the medical evidence which showed vaginal penetration,
but no anal contact. However, we note that, in the videotaped
interview, Amber referred to her genitals as her bottom. We also
note that it is not surprising that a three-year-old would not
have separate words for her vagina and bottom. Accordingly, a
reasonable officer could conclude that Amber intended to refer
to her vagina.

*° Defendants assert that Amber also made such statements
to Officer Honholz and Dr. Decharme. Plaintiffs assert that a
reasonable jury could have concluded that such statements were
never made to these individuals. We conclude that a prudent
officer reasonably could have relied upor Dr. Brake’s assertion
that Amber had made such a statement to Dr. Decharme and on
Officer’s Honholz’s representation to Evans and Dr. Brake that
Amber had made such a statement to him in evaluating the
existence of probable cause. However, even disregarding these
additional statements, probable cause existed as a matter of law.

A-42

existence of probable cause to arrest Rankin.?° See Marx,
905 F.2d at 1506; Myers, 810 F.2d at 1456-57.

Conclusion

In sum, we conclude that the trial court was not
procedurally barred by Federal Rule of Civil Procedure
50 from granting a JNOV in favor of defendants on the
ground that probable cause existed. Although we note
with regret the undoubted hardship caused to plaintiffs
by Doug Rankin’s arrest and detention, especially in light
of his subsequent complete exoneration by the grand jury,
we conclude that the district court correctly determined
that probable cause existed as a matter of law. Accord-
ingly, we affirm the district court’s grant of a JNOV in
favor of defendants and dismiss the cross-appeal as moot.

AFFIRMED.

26 We note that under Fla. Stat. 794.022(1) (West Supp.1990),
“[t}he testimony of the victim need not be corroborated in a
prosecution under s. 794.011 [commission of a sexual battery of
a child under twelve].” However, we do not need to address the
question of how this statutory section would apply when the
victim is a young child and the statement is merely being used
to establish probable cause, rather than as the sole basis for a
- conviction, because Evans had evidence in addition to Amber's
statements which incriminated Rankin at the time of arrest.

Me Faw ae Pe,

I

B-1

APPENDIX B

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

DOUG RANKIN and
VICTORIA RANKIN,
Nir CASE NO. 91-8012-CIV-
Plaintiffs,

GONZALEZ
v.

MARK EVANS and

PALM BEACH COUNTY

SHERIFF’S

DEPARTMENT,

Defendants.

ORDER
(Filed May 15, 1995)

THIS CAUSE has come before the Court upon
Defendants’ Motion for Judgment Notwithstanding the
Verdict and Motion for New Trial, filed on January 4,
1995. The motions have been fully briefed and are ripe for
disposition.

Following a trial of this matter, the Jury returned its
verdict in favor of Plaintiffs on both Counts of the Com-
plaint. First, the Jury found that Defendants violated
Plaintiffs’ Fourth and Fourteenth Amendment rights in
violation of 42 U.S.C. § 1983. Second, the Jury found
Defendants’ liable for false arrest/false imprisonment
under Florida law.

When considering a motion for judgment notwith-
standing the verdict, the Court must view all evidence

B-2

and inferences in the light most favorable to the non-
moving party. Carter v. City of Miami, 870 F.2d 578 581
(11th Cir. 1989). Only if the Court concludes that no
reasonable jury could have found in favor of the prevail-
ing party should the Court disturb a jury’s verdict. “A
mere scintilla of evidence is insufficient to present a
question for the jury. The substantial evidence standard
requires evidence of such quality and weight that reason-
able and fair-minded jurors might reach different conclu-
sions.” Cannon v. Macon County, 1 F.3d 1558, 1562 (11th
Cir. 1993), citing Von Stein v. Brescher, 904 F.2d 572, 578
‘(11th Cir. 1990). Because the Court concludes that there
was no legally sufficient evidentiary basis for a reason-
able jury to find for Plaintiffs in this case on either count
of the Complaint, this Court shall enter judgment as a
matter of law and conditionally deny the motion for new
trial. Fed.R.Civ.P. 50(b)-(c).

Under both federal and Florida law, the existence of
probable cause is a complete defense to the claims
asserted by Plaintiffs in their Complaint. See Chester J.
Antieau, 1 Federal Civil Rights Acts; Civil Practice § 126;
Marx v. Gumbinner, 905 F.2d 1503 (11th Cir. 1990); Von
Stein v. Brescher, 904 F.2d 572 (11th Cir. 1990); Lindsey v.
Storey, 936 F.2d 554 (11th Cir. 1991); Fla.Stat. § 901.15(3);
LeGrand v. Dean, 564 So.2d 510, 511 (Fla.Dist.Ct-App.
1990). Probable cause exists where a reasonably cautious
person, knowing all of the facts known by an arresting
officer at the time of an arrest, would have believed that
the accused was guilty of the offense charged. LeGrand, at
513; 24 Fla.Jur.2d False Imprisonment § 21; Brinegar v.
United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11,
93 L.Ed. 1879 (1949); Wilson v. Attaway, 757 F.2d 1227,

ee

B-3

1235 (11th Cir. 1985). An arresting officer need not rely
upon overwhelmingly convincing evidence, but only
“reasonably trustworthy information,” Von Stein, supra,
citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13
L.Ed.2d 142 (1964). Probable cause “must be judged not
with clinical detachment but with a common sense view
to the realities of normal life.” Wilson, 757 F.2d at 1235.

Viewing all of the facts in the light most favorable to
Plaintiffs, the Court concludes that probable cause exis-
ted in the present case. Accordingly, Defendants were
entitled to a judgment as a matter of law before this case
was submitted to the Jury. Out of an abundance of cau-
tion, and pursuant to Fed.R.Civ.P. 50(b), this Court
reserved ruling on Defendants’ motion and submitted the
case to the Jury. However, the Jury having returned a
verdict contrary to any reasonable interpretation of the
law and facts in this case, this Court shall enter judgment
notwithstanding the verdict.

Accordingly, having considered the motions and the
record, and being otherwise duly advised, it is hereby:

ORDERED and ADJUDGED as follows:

1. Detendants’ Motion for Judgment Notwithstand-
ing the Verdict is GRANTED and Judgment as a Matter
of Law is hereby entered in favor of Defendants and
against Plaintiffs on both counts of the Complaint.

2. Pursuant to Fed.R.Civ.P. 50(e), Defendants’
Motion for New Trial is conditionally DENIED. This con-
ditional denial is based upon the fact that this Court’s
present ruling is rooted in its determination that probable
cause existed in this case. As no other error requiring a

B-4

new trial exists in the record, should the court of appeals
disagree with this Court’s determination, there would
exist no grounds for a new trial.

3. All other pending motions are DENIED as moot.

DONE AND ORDERED in Chambers at Fort
Lauderdale, Florida, this 15th day of May, 1995.

/s/ Jose A. Gonzalez, Jr.
JOSE A. GONZALEZ, JR.
UNITED STATES
DISTRICT JUDGE

cc: Counsel

C-]

APPENDIX C
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 95-4744

DOUG RANKIN,
VICTORIA RANKIN,
Plaintiffs-Appellants,
Cross-Appellees,
versus
MARK EVANS,

RICHARD WILLIE, Sheriff of
Palm Beach County, et al.

Defendants-Appellees,
Cross-Appellants.

On Appeal from the United States District Court
for the Southern District of Florida

(Filed April 2, 1998)

BEFORE: BARKETT, Circuit Judge, KRAVITCH, Senior
Circuit Judge, and HARRIS*, Senior District.

PER CURIAM:

The petition(s) for rehearing filed by the appellants’
is DENIED.

* Honorable Stanley S. Harris, Senior U.S. District Judge for
the District of Columbia, sitting by designation.

ee ee

C-2

ENTERED FOR THE COURT:

's/ Rosemary Barkett
UNITED STATES CIRCUIT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1698%3A1. Public record. Not legal advice.