LeGrand v. Dean, 88-1906

• Decision Date: 31 May 1990
• Docket Number: No. 88-1906,88-1906
• Citation: 564 So.2d 510
• Parties: 15 Fla. L. Weekly D1489 Carol LeGRAND and Donald Lee LeGrand, Appellants, v. Charles S. DEAN, as Sheriff of Citrus County, Florida, Appellee.
• Court: Florida District Court of Appeals

Page 510

564 So.2d 510

15 Fla. L. Weekly D1489

Carol LeGRAND and Donald Lee LeGrand, Appellants, v. Charles S. DEAN, as Sheriff of Citrus County, Florida, Appellee.

No. 88-1906.

District Court of Appeal of Florida,

Fifth District.

May 31, 1990.

Rehearing Denied Aug. 1, 1990.

Michael J. Keane of Baynard, Harrell, Mascara & Ostow, P.A., St. Petersburg, and Wil Florin of Carey & Florin, P.A., Clearwater, for appellants.

Julius F. Parker, Jr. of Parker, Skelding & Labasky, Tallahassee, for appellee.

ON MOTION FOR REHEARING EN BANC

GOSHORN, Judge.

We withdraw the previous opinion, dated September 21, 1989, in this case and substitute the following in its stead.

The question before this court is whether the trial court erred in entering summary judgment in favor of the appellee Sheriff of Citrus County in a false arrest action.

Carol and Donald LeGrand were arrested for sexual battery of a child. The child's parents initially contacted the arresting deputy, reporting to him that the LeGrands sexually assaulted their daughter on a night their daughter had spent at the LeGrands' home with the LeGrands' daughters. The deputy contacted the Child Protection Team, arranging for a member of the team to interview the child. The interview took place at the Sheriff's Department and was videotaped. The deputy and a social worker from HRS watched the interview on a video monitor.

During the interview the child described how she was allegedly assaulted. According to the deputy's deposition, the child stated that she was awakened as Carol LeGrand fondled her. Following the incident, Carol allegedly called Donald into the room and he too fondled the child. As the child pretended to sleep, Carol allegedly again fondled her. The child claimed that Carol digitally penetrated her vagina.

Although the deputy stated that the Child Protection Team interviewer told him and the HRS worker that she believed the child was telling the truth and that the crime had in fact occurred, the interviewer stated in her deposition that she did not recall giving her opinion to the deputy. The deputy also stated he thought he had obtained an opinion on the case from an investigator with the State Attorney's Office before arresting the LeGrands. Immediately after the interview, the deputy arrested the LeGrands, although he did not have a warrant for sexual battery. The LeGrands were subsequently acquitted of these charges by jury.

The LeGrands then sued the Sheriff for false arrest. The Sheriff answered the complaint, later moving for summary judgment on the basis that he had probable cause to arrest the LeGrands. Probable cause is a defense in a false arrest action. See § 901.15, Fla.Stat. (1987); Toomey v. Tolin, 311 So.2d 678 (Fla. 4th DCA 1978). Attached to the motion were the depositions of the interviewer from the Child Protection Team and of the deputy and the deputy's affidavit. In his affidavit, the deputy stated:

1. I am Leslie Cross. I am currently employed as a Police Officer by the City of Pikesville, Tennessee.

2. On May 12, 1986, I was employed as a Deputy Sheriff by the Citrus County Sheriff's Department.

3. On the morning of May 12, 1986, [the child's parents] came to the Citrus County Sheriff's Department to report that [the mother's] daughter, had been sexually assaulted by Carol LeGrand and her husband Donald LeGrand at the LeGrand's trailer on or about March 26, 1986.

4. The [parents] advised me that [their daughter] had gone to bed at the LeGrand's trailer and was sleeping when she awoke to find Carol LeGrand attempting digital penetration of [her] vagina. [The child] stated that she was scared and pretended to be sleeping. She further stated that when Carol LeGrand was finished she called her husband Donald LeGrand into the room. When Donald LeGrand was done, Carol LeGrand allegedly attempted digital penetration of the vagina a second time.

5. I contacted the Child Protection Team at the University of Florida in Gainesville and arranged for Christine Clark to interview the victim on May 14, 1986.

6. On May 14, 1986, at approximately 4:30 p.m., Christine Clark interviewed the victim at the Sheriff's Department. The interview room at the Sheriff's Department is equipped with a two-way mirror through which interviews are videotaped.

7. I watched the entire interview of [the child]. I also videotaped the interview. During the interview, the victim described being digitally vaginally penetrated by Carol and Donald LeGrand.

8. After seeing the interview of [the child] I arrested Carol and Donald LeGrand for sexual battery upon a child under the age of 12.

The trial judge found that the deputy's affidavit conclusively established probable cause for the LeGrands' arrest. We agree.

Probable cause is constitutionally required in warrantless arrest cases to protect society from unreasonable intrusions by the state. United States v. Bowers, 458 F.2d 1045 (5th Cir.), cert. denied, 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 (1972). The standard for determining probable cause to arrest is what a reasonable person would believe knowing all of the facts known to the officer. Rogers v. State, 158 Fla. 582, 158 Fla. 790, 30 So.2d 625 (1947). See also State v. Outten, 206 So.2d 392 (Fla.1968). The standard is not to be equated with the standard of conclusiveness and probability applying to convictions based on circumstantial facts. ¹ Sheff v. State, 301 So.2d 13 (Fla. 1st DCA 1974), affirmed, 329 So.2d 270 (Fla.1976).

What facts and circumstances constitute probable cause is a pure question of law; whether they exist is a pure question of fact. City of Jacksonville v. Alexander, 487 So.2d 1144 (Fla. 1st DCA 1986). The question of whether probable cause exists is thus a jury issue only when material facts are in controversy. Glass v. Parrish, 51 So.2d 717 (Fla.1951); see also City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979); Gause v. First Bank of Marianna, 457 So.2d 582 (Fla. 1st DCA 1984); City of Hialeah v. Rehm, 455 So.2d 458 (Fla. 3d DCA 1984), pet. for rev. den., 462 So.2d 1107 (Fla.1985); Carson v. Brookshire, 440 So.2d 614 (Fla. 1st DCA 1983); Weissman v. K-Mart Corp., 396 So.2d 1164 (Fla. 3d DCA 1971).

In this case, there are only two potentially disputed facts. First, whether the Child Protection Team interviewer expressed to the deputy her opinion that the child was telling the truth, and second, whether the deputy obtained an opinion from an investigator in the State Attorney's Office before arresting the LeGrands. Neither fact is material to the trial court's determination that the deputy had probable cause to arrest. The deputy interviewed the alleged victim's parents. He also watched the interview of the child by the Child Protection Team investigator. The information garnered by the Sheriff was sufficient to provide him with probable cause to believe the child had been sexually assaulted. "First hand knowledge by an officer is not required; the receipt of information from someone who it seems reasonable to believe is telling the truth is adequate." Weissman, supra at 1167. The testimony of the child by itself, if presented at trial and believed by the jury, would be sufficient to sustain a guilty verdict. It necessarily follows that facts sufficient to support a conviction also support a finding of probable cause.

AFFIRMED.

DANIEL, C.J., W. SHARP, COWART, HARRIS and PETERSON, concur.

GRIFFIN, J., concurs specially with opinion, in which COBB, J., concurs.

DAUKSCH, J., dissents with opinion.

GRIFFIN, Judge, concurring specially.

I concur with the result reached in this case but my reason differs from that of the majority. I begin with the belief that the proper focus for inquiry into the propriety of granting summary judgment in this case is found in the language of section 901.15(2), Florida Statutes (1987):

A law enforcement officer may arrest a person without a warrant when: ...

(3) He reasonably believes that a felony has been or is being committed and that the person to be arrested has committed or is committing it. (emphasis added).

Although the term often used in the reported cases is "probable cause", for purposes of evaluating warrantless arrests "probable cause" means "reasonable belief". See 1 Bender's Florida Torts § 21.24 at 21-37 (1988). See also Spicy v. City of Miami, 280 So.2d 419 (Fla.1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 869, 38 L.Ed.2d 755 (1974); Erp v. Carroll, 438 So.2d 31 (Fla 5th DCA 1983); Donner v. Heatherington, 399 So.2d 1011 (Fla. 3d DCA 1981); Toomey v. Tolin, 311 So.2d 678 (Fla. 4th DCA 1975). "Probable cause exists where the facts and circumstances, as analyzed from the officer's knowledge, specialized training and practical experience, and of which he has reasonably trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed." Cross v. State, 432 So.2d 780 (Fla. 3d DCA 1983).

The holding of the majority in this case is that, as a matter of law, the arresting officer reasonably believed that a felony had been committed and that the appellants had committed the felony solely because he had heard the complaining child tell her story. The majority reasons that, since the child's testimony alone would have been sufficient to support a conviction, if believed by the jury, it, ipso facto, must equal probable cause. I cannot agree that possession of a single piece of competent evidence by a police officer satisfies the "reasonable belief" requirement for warrantless arrests, particularly under the facts of this case.

Stated briefly, appellant's contention in this case is that the police officer failed to take any of the steps a minimally qualified and marginally competent officer would have taken to test the veracity of the complaining child's statement and that, had he taken such measures as were readily at hand, he would have learned enough to cause him not to have made this warrantless arrest....