Owens v. City of Pensacola

• Decision Date: 15 March 1978
• Docket Number: No. FF-333,FF-333
• Citation: 355 So.2d 1266
• Parties: Kiplan Carlyle OWENS, Appellant, v. CITY OF PENSACOLA, a Municipal Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 1266

355 So.2d 1266

Kiplan Carlyle OWENS, Appellant, v. CITY OF PENSACOLA, a Municipal Corporation, Appellee.

No. FF-333.

District Court of Appeal of Florida, First District.

March 15, 1978.

William R. Davenport, Pensacola, for appellant.

H. Edward Moore, Jr. of Sherill & Moore, Pensacola, for appellee.

BOYER, Judge.

Appellant constructed two large cardboard signs saying "Speed Trap Ahead" and placed them on both sides of a Pensacola intersection at which he had observed police officers using radar equipment. Moments later, he was arrested on a charge of "obstructing a police officer in the performance of his duties", a violation of Section 843.02, Florida Statutes. After an apparently heated exchange with one of the officers, appellant was put in the back of a police cruiser and taken to the city jail, fingerprinted, and booked. He was later released on bail.

At his arraignment, appellant pleaded not guilty and made a motion to dismiss, to which the state did not file a traverse. The county judge dismissed the charges, finding that appellant's acts did not constitute obstruction as a matter of law. Appellant then sued the City of Pensacola for false arrest and imprisonment and malicious prosecution. After appellant presented his case at that trial the circuit judge directed a verdict in favor of the city.

Appellant now contends on appeal that the trial court erred in taking the case from the jury. Appellee urges that there were no disputed issues of fact and the sole matter for the trial court's determination was whether the police officers had probable cause to believe that an offense had been committed. We agree with appellant and reverse.

In Priest v. Grover, 289 So.2d 767 (Fla. 2nd DCA 1974) an appeal from a final judgment entered on a directed verdict for the defendant in a malicious prosecution action, our sister court of the Second District stated:

"It is well settled that 'in order for probable cause to exist the contenance of the situation must be such that a prudent man would set in motion the forces of a criminal proceeding. And, where it would appear to a "cautious man" that further investigation is justified before instituting that proceeding, then liability may attach for the failure to do so.' Liabos v. Harman, Fla.App.2d 1968, 215 So.2d 487.

"The question of probable cause of lack thereof is a mixed question of law and fact. If the facts relied on to prove a lack of probable cause are in dispute it becomes a question to be determined by a jury. Conversely, if the facts are admitted or uncontradicted, it is solely a question of law. Glass v. Parrish, Fla.1951, 51 So.2d 717; Liabos v. Harman, supra." (289 So.2d at pages 768-769)

In Oosterhoudt v. Montgomery Ward & Company, Inc., 316 So.2d 582 (Fla. 1st DCA 1975) this court reviewed a final summary judgment entered in favor of the defendant in an action based upon false imprisonment and malicious prosecution. Although we there held that the defendant, the proprietor of a store, was properly determined not to have been guilty of false imprisonment and was well within his bounds in detaining the plaintiff for investigation, we specifically rejected the so-called "majority view" that it is the function of the court and not the trier of fact to determine the question of probable cause (in malicious prosecution actions), recognizing the basis of the majority view to be apprehension that the question of probable cause could not be entrusted to a jury. In that case we said:

" * * * Under such circumstances, although, as we have above held, appellee was well within its bounds to detain appellant for investigation, we think that under the circumstances revealed by the proofs of a reasonable and material issue as to probable cause for the subsequent prosecution was presented which should have been submitted to a trier of fact and not resolved by the court on summary judgment." (316 So.2d at page 584)

Certiorari was sought in, and denied by, the Supreme Court of Florida. (Montgomery Ward & Company, Inc. v. Oosterhoudt, 333 So.2d 463 (Fla.1976).)

The distinction drawn in our Oosterhoudt decision between false imprisonment and malicious prosecution was based upon the rights of a merchant to temporarily detain for investigation one suspected of shoplifting. There is a clear distinction between temporary detention for investigation and an arrest as was accomplished sub judice.

In City of Jacksonville v. Walton, 318 So.2d 546 (Fla. 1st DCA 1975), a false arrest and false imprisonment case, this court stated:

"Appellants and Appellee agree that the test in determining whether there existed reasonable ground to arrest without a warrant in the case sub judice is the sufficiency of the knowledge by the arresting officer, put to the test of what a reasonable man knowing all the facts within the knowledge of the officer, would have believed under the circumstances.

"The Supreme Court of this State in the case of State of Florida v. Outten, 206 So.2d 392, defined 'probable cause' as follows:

'The facts constituting probable cause need not meet the standards of conclusiveness and probability required of the circumstantial facts upon which conviction must be based. The sufficiency of the officer's knowledge is not to be judged by an analysis of the effect of each isolated circumstance. Rather, it is to be measured by the test of what a reasonable man would have believed had he known all of the facts known by the officer.'

"This test of what a reasonable man, possessed of the knowledge of the police officer, would have believed was followed also in the cases of Russell v. State, 266 So.2d 92 (3d, Fla.App.); Hardy v. State, 276 So.2d 536 (4th, Fla.App.); State v. Knapp, 294 So.2d 338 (2nd, Fla.App.).

"Mr. Justice Powell of the Supreme Court of The United States, in the case of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), stated:

'The standard for arrest is probable cause, defined in terms of facts and circumstances "sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense." '

"In the case sub judice it is quite obvious that the jury determined and did find that the arresting officers, with the knowledge of all the facts, when viewed in the light of what a reasonable man would believe, were not justified in the arrest of Plaintiff-Appellant. From our review of the transcript of the trial we can find nothing to justify our finding that the jury's verdict was against the manifest weight of the evidence." (318 So.2d at pages 547-548)

In that case, in a special concurring opinion, it was further stated:

" * * * Hindsight is much better than foresight and it is frequently easy upon meditation and cogitation to decide that there was a better alternative to a prior course of action. Police officers seldom enjoy the luxury of an opportunity to meditate before acting. Their actions must, of necessity if they are to be effective, be swift. (See Price v. Gray's Guard Service, Inc., Fla.App. 1st 1974, 298 So.2d 461) However, hectic as it may be the requisites of probable cause must be satisfied. (See Russell v. State, Fla.App.1972, 266 So.2d 92)" (318 So.2d at page 548)

Upon further considering the point on a petition for rehearing, which was denied, we observed:

"Appellants, in their petition for rehearing, also cite to us Porter v. State, Fla.App. 3rd 1974, 302 So.2d 481, wherein our sister court of the Third District said:

' * * * Whether probable cause existed to make the arrest is to be determined from the facts and circumstances existing at the time viewed through the eyes of the arresting officer; that is, what a reasonable man, knowing all of the facts within the cognizance of the officer, would have believed under the circumstances.'

"With that principle of law we are in total agreement. It fits like a glove appellee's case. * * * "

"Appellants finally refer us to City of Miami v. Nelson, Fla.App. 3rd 1966, 186 So.2d 535, certiorari denied 194 So.2d 621 particularly the recital therein to the effect that where there is no dispute in testimony about the facts constituting the reasonable ground for belief that a felony has been committed, that question is for the court to decide. We take no issue with the holding in that case as applied to the facts sub judice. (See however Oosterhoudt v. Montgomery Ward and Co., Fla.App. 1st 1975, 316 So.2d 582)." (318 So.2d at page 549)

In Food Fair Stores, Inc. v. Kincaid, 335 So.2d 560 (Fla. 2nd DCA 1976) the Second District Court of Appeal considered a case factually similar to that involved in our Oosterhoudt decision. (Oosterhoudt v. Montgomery Ward & Company, Inc., supra) There our sister court, as did we in Oosterhoudt, held that Florida Statute 901.34 (formerly F.S. 801.022) insulated a merchant from liability for false arrest because of a temporary detention for investigatory purposes of one suspected of shoplifting. However, as to malicious prosecution, that court, while recognizing the existence of our opinion in Oosterhoudt v. Montgomery Ward & Company, Inc., paid lip-service to Section 673 of the Restatement of Torts and to the annotation appearing at 87 ALR 183 but nevertheless held that the trial judge did not err upon committing the entire question of probable cause to the jury.

Since the case sub judice does not involve a merchant and therefore does not involve application of Florida Statutes 901.34 the cases above cited do not afford protection to the appellee on the false arrest charge. Probable cause, therefore, in this case, its definition and application, is the same as that involved in malicious prosecution and false imprisonment cases.

Our Oosterhoudt decision thereby requires that the issue of probable cause be submitted to the jury for determination. However, whether or not we follow Oosterhoudt it is also clear that a cautious, prudent or reasonable person would have investigated further whether the exercise...