City of St. Petersburg v. Austrino, 2D02-5802.

Decision Date09 February 2005
Docket NumberNo. 2D02-5802.,2D02-5802.
Citation898 So.2d 955
PartiesCITY OF ST. PETERSBURG, Appellant, v. Donald AUSTRINO and Maria Austrino, his wife, Appellees.
CourtFlorida District Court of Appeals

John C. Wolfe, City Attorney, and Deborah Glover-Pearcey, Assistant City Attorney, St. Petersburg, for Appellant.

Marcus A. Castillo of Haas & Castillo, P.A., Clearwater, for Appellees.

CASANUEVA, Judge.

The City of St. Petersburg appeals a jury finding of liability for false arrest and an award of damages of $45,000, for which the City was found to be ninety percent liable.1 We affirm on all points raised, writing only to comment on the issue of probable cause.

At approximately 5:00 a.m. on April 9, 1998, fifty-five-year-old Donald Austrino was awoken and arrested in his home by City of St. Petersburg Police Officer John Douglas for prescription fraud, a violation of section 893.13, Florida Statutes (1997). Allegedly, Mr. Austrino had violated the law by altering a prescription in order to obtain an unauthorized refill for Vicodin, a controlled substance.

Two days earlier, Mr. Austrino had been treated by Dr. Scott Plantz at the emergency room of St. Anthony's Hospital for complaints arising from kidney stones. Following the examination, the ER physician released him and prescribed two medications: Vicodin and Anaprox. Because Mr. Austrino was shortly to depart on vacation, and so he would not be caught without sufficient medication, Dr. Plantz wrote the prescription with one refill noted. He wrote the designation for one refill on the prescription in his typical handwriting, which the doctor described as merely printing the numeral. The doctor did not customarily note the number of permitted refills on the patient's chart, and he did not do so in this instance either. It was unusual, but not unheard of, for an ER physician to prescribe a refill.

Of importance to the circumstances of this case, the doctor was not contacted prior to Mr. Austrino's arrest by any hospital personnel, any pharmacist employed by Walgreen's, or by Officer Douglas.

Mrs. Austrino took the prescription to a Walgreen's pharmacy to be filled during the next day, April 8. This store was near their home where they had lived for over twenty years, and she had been taking all the family's prescriptions to its pharmacy for at least ten years. She received the medication without any question. Late that evening, Ms. Jean Fernandez, the night shift staff pharmacist on duty, reviewed all the prescriptions filled that day, including Mr. Austrino's. The first thing that caught her eye about this prescription was that an ER physician had ostensibly authorized a refill. Further, it appeared to her to be written with a different pen, did not appear to be the same writing as on the rest of the prescription, and the numeral itself was of a different type than elsewhere on the prescription. She thus became suspicious of the refill's authenticity and contacted the hospital. She did not speak to Dr. Plantz. Instead, she spoke with an ER nurse at the hospital who pulled Mr. Austrino's chart. The chart, although noting that a narcotic had been prescribed, contained no indication that a refill had been authorized. The nurse was not on the same shift as Dr. Plantz and did not speak with Dr. Plantz before confirming Ms. Fernandez's belief that ER physicians do not usually prescribe refills. Based on her conversation with the ER nurse, the pharmacist noted on the back of the prescription that she had verified with the ER that the doctor had not authorized the refill. Because this indicated to her that a crime had been committed, she reported it to the police department, which dispatched Officer Douglas. She and Officer Douglas were acquainted with each other as they had previously worked together on similar claims. Officer Douglas responded to the Walgreen's shortly after 4 a.m. on April 9.

Ms. Fernandez told the officer that she had determined that the prescription was forged because the numeral "1" in the refill space was different from the rest of the script, and she had verified with the hospital that a refill had not been authorized. The officer examined the prescription himself. He did not contact either the hospital or Dr. Plantz; instead, he went directly to Mr. Austrino's home. Mr. Austrino, although awakened from a sound sleep, was cooperative with the officer but denied altering the prescription. Both he and Mrs. Austrino, who was nearly hysterical at this point, asked the officer to contact the doctor to confirm that the refill was authorized. Mr. Austrino testified at trial that the officer told him then that he had already spoken to the doctor, who denied authorizing the refill.2 Despite Mr. Austrino's continued denial of wrongdoing, the officer arrested him at approximately 5 a.m. Mr. Austrino was taken to jail, booked, and required to submit to a body cavity search. Around noon, after the police department learned from the doctor that he had, in fact, written the authorization for one refill, as Mr. Austrino had previously maintained, Mr. Austrino was released from jail.

The gravamen of the tort of false arrest is the unlawful restraint of a person against that person's will. Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699, 700 (1944); Spears v. Albertson's Inc., 848 So.2d 1176, 1178 (Fla. 1st DCA 2003). In a false arrest action, probable cause is an affirmative defense to be proven by the defendant. Bolanos v. Metro. Dade County, 677 So.2d 1005, 1005 (Fla. 3d DCA 1996).

Probable cause is a fluid concept. The courts recognize that probable cause for an arrest may be based upon hearsay and does not require the same quantum of evidence needed to sustain a conviction. Otherwise, as Judge Learned Hand wrote, "the powers of the peace officers are to be so cut down that they cannot possibly perform their duties." United States v. Heitner, 149 F.2d 105, 106 (2d Cir.1945). Thus, law enforcement officers are afforded some latitude for error. See Lee v. Geiger, 419 So.2d 717, 719 (Fla. 1st DCA 1982)

("[T]he facts in this case show that at most Detective Lee was guilty of poor judgment in conducting his investigation...."). However, their mistakes "must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability." Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

The Supreme Court reaffirmed in 1983 "the totality of the circumstances analysis that traditionally has informed probable cause determinations." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Focusing on the totality of circumstances requires an assessment of probabilities in that particular factual context. These probabilities are "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id. at 231, 103 S.Ct. 2317 (quoting Brinegar, 338 U.S. at 175, 69 S.Ct. 1302). From these considerations, common sense conclusions regarding human behavior can be reached. The facts and circumstances, based upon reasonably trustworthy information, must be such that "would cause a prudent person to believe" the suspect has committed a crime. Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir.2002) (quoting Williamson v. Mills, 65 F.3d 155, 158 (11th Cir.1995)).

With these standards in mind, we turn to an analysis of the facts in this case. The City of St. Petersburg asks us to review, in the light most favorable to the Austrinos, the trial court's failure to grant summary judgment to the City and the sufficiency of the evidence for the jury award in favor of the Austrinos. If we concluded that there were no material facts in dispute, then in order to reverse, we would be required to find that the City established, as a matter of law, that Officer Douglas had probable cause to arrest Mr. Austrino at 5:00 a.m. on April 9. Because the evidence and all inferences from it lead inevitably to the conclusion that Officer Douglas arrested Mr. Austrino without conducting a reasonable investigation, we hold that the facts and circumstances known to the officer were insufficient to give rise to probable cause. See Liabos v. Harman, 215 So.2d 487 (Fla. 2d DCA 1968)

(holding that it was error to enter summary judgment when there remained a material issue of fact about whether store employees had probable cause to sign an affidavit alleging that the plaintiff wrote worthless checks to the store; the jury could well decide that further investigation was warranted by the facts).

On the most basic level, the trial court was correct in denying the City's motion for summary judgment because there were material facts in dispute. See Medina v. Yoder Auto Sales, Inc., 743 So.2d 621 (Fla. 2d DCA 1999)

(holding that summary judgment is improper if the record raises the slightest doubt that a factual issue might exist). At the time of the City's motion for summary judgment, there was deposition testimony from one of Officer Douglas's fellow officers; he had called her shortly after arresting Mr. Austrino and reported that he had personally called the prescribing doctor to verify that the prescription form had been altered. When motions for summary judgment turn on issues of credibility, summary judgment is improper. Sutherland v. Pell, 738 So.2d 1016 (Fla. 2d DCA 1999). There were still other factual matters in dispute, such as the pharmacist's noting on the back of the prescription that her contact at the ER had verified that the ER doctor had not authorized the refill. Although Officer Douglas's suspicions may have been properly aroused by the pharmacist's report, a reasonably prudent police officer would have conducted further investigation before determining that he had cause to arrest.

In Rankin v. Evans, 133 F.3d 1425 (11th Cir.1998), the plaintiffs asserted that a Palm Beach County Sheriff's deputy falsely arrested the...

To continue reading

Request your trial
27 cases
  • Thomas v. Tucker
    • United States
    • U.S. District Court — Northern District of Florida
    • August 10, 2012
    ...938 So. 2d 985, 990 (Fla. 2d DCA 2006), and law enforcement officers are afforded some latitude for error. City of St. Petersburg v. Austrino, 898 So. 2d 955, 958 (Fla. 2d DCA 2005) (citing Lee v. Geiger, 419 So. 2d 717, 719 (Fla. 1st DCA 1982)). "[T]he receipt of information from someone w......
  • Battiste v. Lamberti
    • United States
    • U.S. District Court — Southern District of Florida
    • August 11, 2008
    ...of all the information reasonably discoverable by an officer acting reasonably under the circumstances." City of St. Petersburg v. Austrino, 898 So.2d 955, 959 (Fla. 2nd DCA 2005) (internal quotation and citation omitted). "A police officer may not close her or his eyes to facts that would ......
  • Whittington v. Town of Surfside
    • United States
    • U.S. District Court — Southern District of Florida
    • June 6, 2007
    ...15. Plaintiff relied upon two cases, City of Clearwater v. Williamson, 938 So.2d 985 (Fla. 2d DCA 2006) and City of St. Petersburg v. Austrino, 898 So.2d 955 (Fla. 2d DCA 2005), to support the proposition that an eyewitness account alone was insufficient to establish probable cause to suppo......
  • Douglas v. United States
    • United States
    • U.S. District Court — Middle District of Florida
    • June 22, 2011
    ...of critical facts supporting an arrest does not focus upon facts not available to him at the time. City of St. Petersburg v. Austrino, 898 So.2d 955, 959 (Fla. 2d DCA 2005) (citing Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). “ ‘By the same token, however, it......
  • Request a trial to view additional results
1 books & journal articles
  • Physical torts
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • April 1, 2022
    ...Source Everett v. Florida Inst. of Tech. , 503 So.2d 1382, 1383 (Fla. 5th DCA 1987). See Also 1. City Of St. Petersburg v. Austrino , 898 So. 2d 955, 957 (Fla. 5th DCA 2005). 2. Foshee v. Health Management Associates , 675 So.2d 957, 960 (Fla. 5th DCA 1996), rev. denied , 686 So.2d 578 (Fla......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT