Rankin v. Evans , 133 F.3d 1425 ( 1998 )


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  •                                    United States Court of Appeals,
    
                                              Eleventh Circuit.
    
                                                No. 95-4744.
    
                    Doug RANKIN, Victoria Rankin, Plaintiffs-Appellants, Cross-Appellees,
    
                                                      v.
    
      Mark EVANS, Richard Willie, Sheriff of Palm Beach County, Palm Beach County Sheriff's
    Department, Defendants-Appellees, Cross-Appellants.
    
                                                Jan. 29, 1998.
    
    Appeal from the United States District Court for the Southern District of Florida. (No. 91-8012-CIV-
    JAG), Jose A. Gonzalez, Judge.
    
    Before BARKETT, Circuit Judge, KRAVITCH, Senior Circuit Judge, and HARRIS*, Senior District
    Judge.
    
            HARRIS, Senior District Judge:
    
            This case, like some others involving allegations of sexual abuse of a child, inevitably evokes
    
    feelings of compassion for all of the participants involved in the long-running dispute. However,
    
    obviously the issues must be resolved dispassionately.
    
            Plaintiff-appellant Doug Rankin was arrested in late November of 1988 and charged with
    
    the sexual abuse of a child under the age of twelve. Thereafter, not only did a grand jury not indict
    
    him; it affirmatively found that he was "completely innocent." He and his wife, plaintiff-appellant
    
    Victoria Rankin, brought an action against the arresting officer, Deputy Sheriff Mark Evans, and the
    
    Palm Beach County Sheriff's Department under 42 U.S.C. § 1983, and also made a state claim for
    
    false arrest.
    
            At the conclusion of the evidentiary portion of the civil trial, the district judge denied
    
    
       *
        Honorable Stanley S. Harris, Senior U.S. District Judge for the District of Columbia, sitting
    by designation.
    defendants' motion for a directed verdict and permitted the case to go to the jury, which returned a
    
    substantial verdict for plaintiffs. Thereafter, upon defendants' motion, the district court set aside the
    
    verdict on the ground that probable cause for Doug Rankin's arrest and detention had existed as a
    
    matter of law. That ruling is before us, as is defendants' cross-appeal of the district court's
    
    conditional denial of their motion for a new trial and its denial of their motions for remittitur and to
    
    alter or amend the judgment on the state count. We affirm the district court's grant of a JNOV and
    
    dismiss the cross-appeal as moot. (In light of the cross-appeal, for clarity we often refer to the
    
    parties as plaintiffs and defendants).
    
    I. Factual History1
    
            Plaintiffs Doug and Victoria Rankin owned and operated the Sugar Plum School House, a
    
    pre-school program located in Lake Worth, Florida. Dr. Martha Brake's three-and-a-half-year-old
    
    daughter Amber began attending Sugar Plum on November 7, 1988. On November 21, 1988, Amber
    
    made a statement to her mother, who is a child psychologist, indicating that she had been sexually
    
    abused. Dr. Brake then made an audio tape of her daughter's statement in which the child again
    
    indicated that she had been abused. That evening, Dr. Brake took her daughter to a pediatrician, Dr.
    
    Drummond, to be examined for possible evidence of abuse. During the examination, Dr. Drummond
    
    found physical signs which were consistent with sexual abuse. The next morning, Dr. Brake went
    
    to Amber's prior school—Victory Baptist—and played the tape in an attempt to get Amber
    
    
    
       1
        In analyzing the factual history, we have viewed all facts in the light most favorable to
    plaintiffs and have drawn all reasonable inferences in their favor. See 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). However, this presumption in favor of plaintiffs does not apply
    where no jury could reasonably conclude that the evidence supported a certain factual finding or
    inference, despite minor conflicts in the record. Id. (stating that a "mere scintilla of evidence
    does not create a jury question; there must be a substantial conflict in evidence to create a jury
    question").
    readmitted to that school. At approximately nine o'clock that morning, Dr. Brake called the sheriff's
    
    department to inform it that she had proof that her daughter had been sexually molested. Deputy
    
    Mark Evans, who was assigned to the case, called Dr. Brake and scheduled an interview with her
    
    and Amber for that morning.
    
           Deputy Evans and a representative from the Florida Department of Health and Rehabilitation
    
    Services and Victim's Services (HRS) interviewed Dr. Brake while another officer observed Amber.
    
    Dr. Brake informed Evans that: (1) Amber had made a spontaneous statement to her which
    
    indicated that she had been molested by a person named Ba Ba Blue; (2) she had heard Amber refer
    
    to Doug Rankin as Ba Ba Blue on several occasions and had never heard her refer to anyone else
    
    by that name; (3) a teacher had informed her that children frequently called Doug Rankin Baba
    
    Loo;2 (4) Doug Rankin worked at the school, Sugar Plum, which Amber attended; (5) the only men
    
    who had had access to Amber in the recent past were Rankin and one of Dr. Brake's coworkers; (6)
    
    she had seen Rankin on the playground with the children; (7) Amber had attended Sugar Plum for
    
    about two weeks; (8) Amber started exhibiting behavioral changes starting at the end of her first
    
    week at the school;3 (9) Amber had used the age-inappropriate term "boobies" in reference to her
    
    chest after starting school at Sugar Plum; (10) Dr. Brake was so disturbed by Amber's behavioral
    
    changes that she tried to get her re-enrolled at her prior school, Victory Baptist; (11) Dr. Brake saw
    
    Rankin pick Amber up, and Amber hit him in response, on the day that Amber made her initial
    
    
       2
       It is uncontested that Baba Loo was a nickname used for Rankin by the children, and that
    Amber pronounced this name as Ba Ba Brue or Ba Ba Blue. Accordingly, we use the term "Ba
    Ba Blue" whenever we refer to Amber's statements regarding Baba Loo. When referring to
    another party's independent use of the term, we use the term "Baba Loo."
       3
        Dr. Brake testified that she told Evans that Amber initially enjoyed school, but that her
    behavior had changed significantly by the end of the first week. She told Evans that Amber had
    become more withdrawn, had indicated that she did not want to go to school, had become more
    clingy, and had begun having nightmares.
    statement indicating sexual abuse; (12) it was unusual for Amber to strike an adult; (13) Dr. Brake
    
    had had an argument with Rankin regarding what she considered to be insufficient supervision of
    
    the children; (14) she had taken Amber to be examined by Dr. Drummond (their pediatrician) the
    
    day Amber made her initial statement, and he told Dr. Brake that there was physical evidence
    
    consistent with abuse; and (15) a colleague of hers who was also a child psychologist, Dr.
    
    Decharme, had seen Amber on the evening of November 21, 1988, and told Dr. Brake that Amber
    
    had indicated that she had been abused.
    
           Dr. Brake also informed Evans that she had made an audiotape of Amber's recounting of her
    
    previous statement. Evans listened to that tape. On it, Amber stated that Ba Ba Blue had made "a
    
    hole in [her] bottom" and that he put "his fingers in [her] bottom and it pinched and it feels bad."
    
    She also indicated that, after Ba Ba Blue was finished with her, he sent her to the playground.
    
           Officer Honholz, who had been with Amber during Evans's interview of her mother,
    
    informed Evans and Dr. Brake that Amber made a statement to him regarding the abuse.
    
           Deputy Evans then conducted a videotaped interview with Amber in which she again
    
    indicated that a man at school named Ba Ba Blue had abused her. Prior to identifying Ba Ba Blue
    
    as her abuser, Amber named two cartoon characters in response to police questioning regarding the
    
    identity of her abuser. Baba Loo is the name of a cartoon character from a video the children
    
    watched in school. Rankin used the term as a general nickname to refer to the children. The
    
    children, including Amber, also referred to Rankin by this nickname.
    
           Amber also made several improbable or inconsistent statements regarding the timing of the
    
    abuse. She indicated that the abuser had used both his hand and a spoon, taken pictures of her,
    
    touched her with his genitalia, and had been naked. She also indicated that the abuse had happened
    
    both inside the school and outside on some steps.
           Deputy Evans telephoned Dr. Drummond regarding Amber's physical examination. Dr.
    
    Drummond told Evans that there were several physical symptoms that could be the result of sexual
    
    abuse: (1) a fresh abrasion; (2) an enlarged hymenal opening; and (3) a healed notch on the hymen.
    
    Dr. Drummond indicated that the first symptom could be consistent with improper sexual conduct
    
    such as rubbing, but that there were other possible causes. Dr. Drummond stated that the hymenal
    
    notch and the enlargement of the area suggested some form of limited penetration—possibly digital.
    
    Dr. Drummond also noted that the notch to the hymen was at least two to three weeks old.
    
           On the morning of November 23, 1988, with the authorization of his superiors, Evans went
    
    to Sugar Plum to arrest Doug Rankin for sexual battery on a child under the age of twelve. Rankin
    
    was not there. Evans did not inform anyone at the school of the purpose of his visit, nor did he
    
    interview anyone at the school regarding the alleged abuse. Instead, he returned several hours later,
    
    when he had been informed Rankin would be present, at which time he arrested Rankin.
    
           During his subsequent interview with police, Rankin repeatedly proclaimed his innocence
    
    and informed Evans that he had never been alone with Amber (a fact that he asserted the teachers
    
    could corroborate), that he was physically unable to fit on or reach into the playground equipment
    
    on which the police stated that the abuse occurred, that Baba Loo was the name of a cartoon
    
    character, that he was not the only person at the school who was called Baba Loo, and that Amber
    
    had attended the school for only two weeks.
    
           During his interview, Rankin also conceded that he was the only male who worked at the
    
    school, that the children referred to him as Baba Loo, that he had access to the entire schoolhouse,
    
    and that he had been at school on November 21, 1988. He also made numerous specific comments
    
    regarding Amber's personality and behavior during the two weeks she had been at school, even
    
    though he stated that there were 120 students at the school and that he had relatively little contact
    with the children. Furthermore, he made progressively more critical comments regarding Dr. Brake
    
    as the interview progressed.
    
           Following the interrogation, Rankin formally was charged with sexual battery of a child
    
    under the age of twelve pursuant to Fla. Stat. 794.011(2). He subsequently was released on bond
    
    with no opposition from Deputy Evans. A grand jury later exonerated Rankin, specifically stating
    
    that he was "completely innocent."
    
    II. Procedural History
    
            Following those events, plaintiffs Doug Rankin and his wife Victoria filed a complaint
    
    asserting both state and federal claims. The claims resolved by the jury at trial were as follows.4
    
    Count I stated a claim pursuant to 42 U.S.C. § 1983 alleging that defendant Mark Evans, as a Deputy
    
    Sheriff of Palm Beach County, while acting under the color of state law, arrested and seized plaintiff
    
    Doug Rankin without a warrant or probable cause in violation of the Fourth and Fourteenth
    
    Amendments of the United States Constitution. Count II alleged that defendant Richard Wille, as
    
    Sheriff of the Palm Beach County Sheriff's Department, acting through its agents and employees,
    
    falsely arrested and imprisoned plaintiff Doug Rankin.5 At trial, defendants made a motion for a
    
    
    
    
       4
        It should be noted that Sheriff Richard Wille was originally named as a defendant in Count I,
    but was dismissed prior to trial. The Sheriff's Department was named as a defendant in both
    Counts I and II. However, summary judgment was entered in the Department's favor on Count I,
    and thus it remained as a defendant only in Count II. Richard Wille subsequently was substituted
    for the Palm Beach County Sheriff's Department in Count II. Accordingly, at trial, Deputy Mark
    Evans was the defendant in Count I and Richard Wille, as the Sheriff, was the defendant in
    Count II.
       5
        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).
    directed verdict both at the close of plaintiffs' case and at the close of all evidence.6 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.7
    
            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 defendants were entitled to a JNOV on the § 1983 claim
    
    
       6
        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.
       7
        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.
       8
       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 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.
    because plaintiffs failed to demonstrate that Deputy Evans acted with deliberate or callous
    
    indifference to Doug Rankin's constitutional rights, as required to support 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 conditionally 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 conditional denial of the motion for a new trial and the denial of their other motions as
    
    moot.
    
    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 procedurally barred. The Rankins correctly assert that Federal 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. Attaway, 
    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, i.e., 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 deficient.
    
    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 (5th 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).
    
           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 provision on
    
    which a JNOV later was based, it provided the court and opposing counsel with sufficient notice to
    
    satisfy 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 probable 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 denying defendants' motion for a directed verdict
    
    at the close of plaintiffs' case. The trial judge subsequently denied 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, defendants 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").9 See also
    
    Scottish Heritable Trust v. Peat Marwick Main & Co., 
    81 F.3d 606
    , 610 (5th Cir.) (stating that
    
    "[t]echnical noncompliance with Rule 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) (concluding that defendants'
    
    motions for a directed verdict were sufficient to support a JNOV where the court and opposing
    
    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 prerequisite to a motion for JNOV to ensure that neither the court nor the opposing
    
    
    
       9
         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.
    party is "lulled into complacency" concerning 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 submitting the case to the jury ensures that the court and the
    
    opposing party will be alerted to any sufficiency problems at a stage when such deficiencies might
    
    be remedied.
    
            The same purpose underlies the specificity requirement 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 specificity requirement of Rule 50(a)(2) is unnecessary to serve the
    
    purpose of the rule.
    
            The record shows that the trial court and plaintiffs' counsel were aware that the asserted
    
    existence of probable 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
    
    memorandum, 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 Subjective 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 contend 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 defendants 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 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 reasonable 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)).10
    
    See also United States v. McDonald, 
    606 F.2d 552
    , 553 n. 1 (5th Cir.1979) (per curiam ) (stating
    
    that "Florida's standard 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. 1st DCA 1982) (concluding 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 explicitly 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. Resnick, 
    455 F.2d 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 ).
    1127, 1132 (5th Cir.1972) (concluding that probable cause existed and "the scope of the Fourth
    
    Amendment is not determined by the subjective conclusion of the law enforcement officer").11
    
    
       11
          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 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
    Finally, relying on its own precedent dating back to 1973, the Supreme Court recently stated:
    
    "Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."12
    
    Whren v. United States, 
    517 U.S. 806
    , ----, 
    116 S. Ct. 1769
    , 1774, 
    135 L. Ed. 2d 89
     (1996). Thus,
    
    when this Circuit concluded that state and federal probable cause standards are identical, it was
    
    clearly established under federal law that there was no subjective belief requirement. No subjective
    
    belief requirement exists under either state or federal law.13
    
    
    
            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.
       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 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 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
                                    2. The Existence of Probable Cause
    
           The Rankins assert that the trial court erred in granting a JNOV in favor of defendants
    
    because a reasonable jury could have concluded that the arresting officer, Deputy 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 scintilla of evidence does not create a jury question; there must be a substantial conflict
    
    in evidence to create a jury question." Id.
    
            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
    
    
    Circuit and Supreme Court precedent.
    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 ). Accordingly, "we ... must evaluate [the]
    
    facts and inferences according to the legal standard for probable cause." Bailey, 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 objectively 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 knowledge, of which he or she has
    
    reasonably trustworthy information, would cause a prudent person to believe, under the
    
    circumstances shown, that the suspect has committed, is committing, or is about to commit an
    
    offense." 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 1120; see also Scott, 641 So.2d at 519 ("[T]he facts
    
    necessary to establish probable cause need not reach the standard of conclusiveness and probability
    
    as the facts necessary to support a conviction."). In determining whether probable cause exists, "
    
    "we deal with probabilities ... [which] are the factual and practical considerations 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 reasonable 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. 1st 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 information 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."). Furthermore, 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 (internal 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
    , 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 probable cause existed. The
    
    existence of probable cause constitutes 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 defendant."). Accordingly, defendants had the burden of
    
    demonstrating 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 constitutional 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 constitutional 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 exonerated Doug Rankin or was not sufficiently trustworthy or 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 location 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 penetration.
    
           The Rankins also contend that Evans should not have relied on Amber's or Dr. Brake's
    
    statements about possible 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 considerable skepticism because
    
    he should have known that Dr. Brake was biased against Rankin due to their argument 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 probable cause and should have
    
    prompted further investigation. 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 investigation 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 important 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-supported by the evidence available to him at the time of Rankin's arrest and detention.
    
    Defendants note that Evans interviewed Amber, Dr. Brake, and Dr. Drummond, 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. Drummond, and his interrogation of Rankin in which Rankin made several
    
    damaging statements constituted a reasonable 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 conclude that the statements made by Rankin after his arrest did not defeat the
    
    existence of probable cause or necessitate 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 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.14 Accordingly, 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
    
    
       14
         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 fresh abrasion within 24 hours of the November 21, 1988, medical examination which could have
    
    been caused by a fingering 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 instance of abuse occurred, and a prudent
    
    officer reasonably 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.15 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 guilt, Evans knew that Amber had stated that abuse had occurred on
    
    November 21, 1988, which was clearly inconsistent with the medical time frame for the act of
    
    penetration. However, the relevant question is whether a prudent officer reasonably could have
    
    
       15
         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.
    believed that Rankin committed the offense in light of the medical evidence suggesting 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 penetration and simple fingering or rubbing. Thus, in recounting the abuse she could have
    
    conflated the incidents or confused 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 does. They contend that,
    
    had Evans interviewed any of the teachers before arresting Rankin, he would have realized 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.16
    
            Additionally, the teachers whom Rankin argues that Evans should have interviewed were
    
    employed by Rankin and thus would have been of questionable credibility.17 A cautious officer
    
    certainly could have reasonably concluded that, even if the teachers were to have stated that Rankin
    
    had no access to Amber, such testimony 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
    
    movements—such supervision being one of their job responsibilities—that it would not defeat the
    
    existence of probable cause in light of the other evidence suggesting Rankin's guilt. Finally,
    
    
    
       16
         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 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.
       17
         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.
    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
    
    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
    
    equipment 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 equipment 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 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).
    
           Furthermore, a prudent person reasonably could have believed that the abuse happened in
    
    the approximate 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 playground, 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 schoolhouse. 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.
    
                                         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 trustworthy to support
    
    the existence of probable cause. Defendants 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 existence of probable cause, and that
    
    those statements supported 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 consistent with two separate
    
    episodes of abuse—partial penetration 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. Drummond'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 covering both potential incidents of abuse.
    
            Furthermore, a cautious person reasonably could have believed that Dr. Brake was unlikely
    
    either to have 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
    
    examined 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 position 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 incidents, a cautious person reasonably could have believed that the perpetrator was
    
    someone at the school.18 This conclusion was further supported by Dr. Brake's statement that Amber
    
    
       18
         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
    started exhibiting behavioral changes within a week of beginning her attendance at Sugar Plum.
    
    These behavioral changes included unusual clinginess, an abnormal aversion to attending school,
    
    and atypical shyness. A seasoned officer reasonably could have concluded that these behavioral
    
    changes were consistent with sexual abuse and linked that abuse to the school.19
    
            Having narrowed the class of likely suspects to the school house, information provided by
    
    Dr. Brake suggested 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 information 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 a class of
    
    approximately 120 might indicate such a special interest; and (2) the hostility Amber demonstrated
    
    
    
    
    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 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.
    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
    
    conclude 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 Cir.1995), cert. denied,
    
    --- U.S. ----, 
    116 S. Ct. 1676
    , 
    134 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 statements in determining whether
    
    probable cause existed); 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.20 In addition, Amber
    
    consistently referred to her 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
    
    
    
       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 as the abusers,
    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
    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.
    her statements 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 incidents to her
    
    mother and on which Dr. Brake told Evans that Amber had indicated the abuse had occurred.21
    
    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.22
    
            The Rankins also point to several other comments by Amber which they assert fatally
    
    undermine the reliability of her statements.23 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
    
    named Ba Ba Blue made a hole in her bottom at school.24 She made statements to this effect on at
    
       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.
       24
        The Rankins assert 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
    least four separate occasions of which Evans was aware: to her mother, to Dr. Drummond, on
    
    audiotape, and to him during the videotaped interview.25 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 existence of probable cause to arrest Rankin.26 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,
    
    
    
    
    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.
       25
         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 upon Dr. Brake's assertion that Amber had made such a statement to Dr. Drummond 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.
       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.
    we conclude that the district court correctly determined that probable cause existed as a matter of
    
    law. Accordingly, we affirm the district court's grant of a JNOV in favor of defendants and dismiss
    
    the cross-appeal as moot.
    
           AFFIRMED.
    

Document Info

DocketNumber: 95-4744

Citation Numbers: 133 F.3d 1425

Filed Date: 1/29/1998

Precedential Status: Precedential

Modified Date: 4/16/2017

Authorities (44)

Scottish Heritable v. Peat Marwick Main, et , 81 F.3d 606 ( 1996 )

Williamson v. Mills , 65 F.3d 155 ( 1995 )

Ortega v. Christian , 85 F.3d 1521 ( 1996 )

Evans v. Hightower , 117 F.3d 1318 ( 1997 )

United States v. Robinson , 414 U.S. 218 ( 1973 )

Scott v. United States , 436 U.S. 128 ( 1978 )

Illinois v. Gates , 462 U.S. 213 ( 1983 )

United States v. Villamonte-Marquez , 462 U.S. 579 ( 1983 )

Whren v. United States , 517 U.S. 806 ( 1996 )

John Joseph Clarke, Jr., a Minor, by Muriel Clarke, His ... , 435 F.2d 104 ( 1970 )

united-states-v-patricia-f-clark-aka-pat-and-mrs-john-clark , 559 F.2d 420 ( 1977 )

United States v. Dennis Lee Ullrich , 580 F.2d 765 ( 1978 )

United States v. James Ray McDonald , 606 F.2d 552 ( 1979 )

Larry Bonner v. City of Prichard, Alabama , 661 F.2d 1206 ( 1981 )

bennie-stewart-jr-individually-and-on-behalf-of-all-others-similarly , 730 F.2d 1002 ( 1984 )

E.J. Wilson, Dearest Davis, and Cassandra Linder, ... , 757 F.2d 1227 ( 1985 )

national-industries-inc-a-corporation-counter-defendant-appellee , 781 F.2d 1545 ( 1986 )

Greg Myers, Etc. v. R. Kathleen Morris, Scott County ... , 810 F.2d 1437 ( 1987 )

Dula McCarty v. Pheasant Run, Inc. , 826 F.2d 1554 ( 1987 )

49 Fair empl.prac.cas. 1014, 49 Empl. Prac. Dec. P 38,904 ... , 870 F.2d 578 ( 1989 )

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