Rankin v. Evans

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________

No. 95-4744
_________________________
(District Court No. 91-8012-CIV-JAG)

DOUG RANKIN,
VICTORIA RANKIN,

Plaintiffs-Appellants,
Cross-Appellees,

versus

MARK EVANS, RICHARD WILLIE,
Sheriff of Palm Beach County,
PALM BEACH COUNTY SHERIFF’S
DEPARTMENT,

Defendants-Appellees,
Cross-Appellants.

__________________________

Appeal from the United States District Court
for the Southern District of Florida
__________________________
(January 29, 1998)

Before BARKETT, Circuit Judge, KRAVITCH, Senior Circuit Judge,
and HARRIS*, Senior District Judge.

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

2
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 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

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, 113 S. Ct. 98 (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”).

3
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

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.

4
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 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

5
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

6
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

7
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,

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).

8
defendants made a motion for a 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

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

9
asserted that defendants were entitled to a JNOV on the § 1983

claim because plaintiffs failed to demonstrate that Deputy Evans

acted with deliberate or callous indifference to Doug Rankin’s

constitutional rights, as required to 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

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.

10
 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).

11
 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

12
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,

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.

13
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, 117 S. Ct. 182 (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

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

14
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

15
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

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).

16
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, 98

S. Ct. 516 (1977); United States v. Resnick, 455 F.2d 1127, 1132

(5th Cir. 1972) (concluding that probable cause existed and “the

scope of the Fourth Amendment is not determined by the subjective

conclusion of the law enforcement officer”).11 Finally, relying

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, 100 So. 365, 366
(Fla. 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.
Heatherington, 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.

17
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

However, even if we were not so bound, we would not conclude
that the cases cited by plaintiffs establish that there is a
subjective element to the probable cause analysis under Florida
law. Our research indicates that no other Florida appellate
jurisdiction has joined the Third District’s adoption of an
explicit two-part probable cause analysis requiring an officer
subjectively to believe that probable cause exists and have a
reasonable basis for that subjective belief. The other
jurisdictions appear to rely on an objective standard: probable
cause exists when ”the totality of the facts and circumstances
within the officer’s knowledge would cause a reasonable person to
believe that an offense has been committed and that the defendant
is the one who committed it.” Revels v. State, 666 So. 2d 213,
215 (Fla. 2d DCA 1995); see also Florida Game and Freshwater Fish
Comm’n v. Dockery, 676 So. 2d 471, 474 (Fla. 1st DCA 1996);
Millets v. State, 660 So. 2d 789, 791 (Fla. 4th DCA 1995);
LeGrand v. Dean, 564 So. 2d 510, 512 (Fla. 5th DCA 1990). But
see LeGrand, 564 So. 2d at 513 (Griffin, J., specially
concurring) (citing Donner and Spicy for the proposition that an
officer must “actually have a belief that a crime was committed
and that the people he proposes to arrest perpetrated the
crime”). Finally, the Florida Supreme Court again defined the
test for probable cause in objective terms after Donner. See
Blanco v. State, 452 So. 2d 520, 523 (Fla. 1984) (“The probable
cause standard for a law enforcement officer to make a legal
arrest is whether the officer has reasonable grounds to believe
the person has committed a felony.”), cert. denied, 105 S. Ct.
940 (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, 116
S. Ct. at 1774; see also United States v. Villamonte-Marquez, 103
S. Ct. 2573, 2577 n.3 (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, 98 S. Ct. 1717, 1723 (1978) (rejecting the
contention that the Fourth Amendment required the exclusion of
certain wiretap evidence and and accepting the government’s

18
States, 116 S. Ct. 1769, 1774 (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

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.

position that “[s]ubjective intent alone . . . does not make
otherwise lawful conduct illegal or unconstitutional”); United
States v. Robinson, 94 S. Ct. 467 (1973) (characterized by Scott,
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 Circuit and Supreme Court
precedent.

19
 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, 113 S. Ct.

98 (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 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

20
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, 103 S. Ct. 2317, 2328 (1983)).

An arresting officer is required to conduct a reasonable

investigation to establish probable cause. See Tillman, 886 F.2d

21
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

22
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.

23
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

24
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.

25
 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

26
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 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.

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.

27
 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 believed that Rankin committed the

offense in light of the medical evidence suggesting that any

penetration had to have happened significantly before November

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.

28
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

29
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

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.

30
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, 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

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.

31
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, 107 S. Ct. 71

(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

32
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

33
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

34
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 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

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 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.

35
 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 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

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.

36
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, 116 S. Ct. 1676 (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, 108

S. Ct. 97 (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.

37
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

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.

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Amber’s mother who appeared to have access to her were the staff

at Sugar Plum. In addition, Amber indicated that all of her

teachers were female, suggesting that Rankin was the only male at

Sugar Plum (a fact which Rankin subsequently conceded during

questioning). Accordingly, we conclude that Amber’s statements

provided sufficient information for a cautious person reasonably

to believe that Amber was abused by someone called Ba Ba Blue,

and that other evidence indicated that Ba Ba Blue was Rankin.

The Rankins also assert that inconsistencies in Amber’s

videotaped statement indicated that her 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

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.

39
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 least four separate

occasions of which Evans was aware: to her mother, to Dr.

Drummond, on audiotape, and to him during the videotaped

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 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.

40
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

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.

41
exoneration by the grand jury, 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.

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