Tyler Land v. Sheriff of Jackson County Florida ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12324
____________________
TYLER LAND,
Plaintiff-Appellant,
versus
SHERIFF OF JACKSON COUNTY FLORIDA,
JOHN ALLEN,
individually,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:19-cv-00120-MCR-MJF
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2 Opinion of the Court 22-12324
____________________
Before WILLIAM PRYOR, Chief Judge, ABUDU and ED CARNES, Cir-
cuit Judges.
WILLIAM PRYOR, Chief Judge:
This appeal presents the issue of whether Deputy John Allen
and Sheriff Louis Roberts are entitled to qualified and state-agent
immunity from Tyler Land’s complaint that he was arrested pur-
suant to a warrant based on a false affidavit. After Land drove a
methamphetamine trafficker to an undercover drug sting, Allen
obtained a warrant from a magistrate judge and arrested him. Flor-
ida charged Land with aiding and abetting drug trafficking and de-
tained him for over six months before dismissing the charges. Land
sued Allen and Roberts under federal and state law, alleging that
Allen illegally arrested, detained, and prosecuted him and that Rob-
erts was deliberately indifferent to and negligently caused Allen’s
misconduct. The district court granted summary judgment for the
officers. Because Allen’s warrant affidavit—excluding any false
statements—supplied probable cause for Land’s arrest, we affirm.
I. BACKGROUND
Sheriff Louis Roberts of Jackson County, Florida, hired John
Allen as a deputy in 2009. Before hiring Allen, the Sheriff’s office
conducted a background investigation and found him to be quali-
fied and of good moral character, as required by state law. See FLA.
STAT. § 943.13(7) (deputies must have good moral character). Allen
completed various training exercises during his employment and
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22-12324 Opinion of the Court 3
was assigned additional responsibilities in the K-9 unit and on a
drug task force affiliated with the federal Drug Enforcement Ad-
ministration.
In 2016, Allen, as part of the drug task force, was investigat-
ing the conduct of a suspected drug trafficker named Scott Smith.
On June 14, a Tuesday, officers phoned Smith to arrange a con-
trolled purchase of methamphetamine at 2 p.m. in the parking lot
of a Dollar General store in Greenwood, Florida. An undercover
federal agent, fitted with surveillance equipment and accompanied
by two confidential informants, waited at the purchase location in
a black truck. A surveillance plane circled over the scene.
Smith arrived at the store parking lot in a Ford Explorer
driven by Tyler Land. The two were accompanied by Smith’s girl-
friend, Martha Bellamy, who had been a confidential informant in
other investigations. Smith exited Land’s Ford Explorer and en-
tered the federal agent’s black truck; simultaneously, the two con-
fidential informants exited the black truck and entered Land’s Ford
Explorer. Inside the black truck, Smith sold the agent approxi-
mately 15 grams of methamphetamine—a trafficking quantity. See
FLA. STAT. § 893.135(1)(f)(1).
Officers identified Land as the driver of the Ford Explorer.
But Land later testified in his deposition that he had not known
about the drug deal and only occasionally “crossed paths” with
Smith and Bellamy. According to Land, on the day of the drug pur-
chase, Smith had offered to pay Land to drive him to get some parts
for a wrecked truck and Land accepted the offer. Along the way,
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Smith received a phone call and offered Land “some extra gas
money” in exchange for a detour to the Dollar General.
On June 24, 2016, Allen signed a probable cause affidavit for
Land’s arrest as a principal to methamphetamine trafficking, which
was received in the Clerk’s Office on June 27. The affidavit accu-
rately certified, as the basis for probable cause, that the drug task
force had “prearranged” the purchase of a trafficking quantity of
methamphetamine from Smith, and that Land and Smith had ar-
rived together at the designated time and place. It explained that
Land had “driven [Smith] to the meeting location,” was “positively
identified” as the driver of the vehicle, and “was present” for the
surveilled purchase.
But the affidavit contained several significant errors. Among
other errors, it wrongly stated that the purchase quantity was 30.54
instead of 15 grams of methamphetamine. According to Allen, the
30.54 number was a “clerical error,” a copy-and-paste from an affi-
davit prepared for “another drug deal . . . conducted with [] Smith
just prior.” The affidavit also wrongly stated that Land had over-
seen the purchase “as it took place inside his vehicle.” Allen later
testified that he misidentified the vehicle where the purchase took
place because of “what the surveillance team”—that is, the team in
the plane—had “provided [him].” He suggested that the “several
exchanges of people between vehicles at the onset of the investiga-
tion” may have confused the overhead team, but he also confessed
that he “[didn’t] have anybody that positively said that [the pur-
chase in Land’s vehicle] is what happened.” He also admitted that
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he did not reach out to the federal agent who had made the hand-
to-hand purchase, but instead relied on his “interpretation” of the
surveillance chatter of his Jackson County colleagues. Finally, the
affidavit wrongly stated that the drug task force investigation had
targeted both Smith and Land. Allen later admitted he was aware
that only Smith, and not Land, had been a target.
A magistrate judge, relying on Allen’s affidavit, signed a war-
rant for Land’s arrest on June 24, 2016. That same day, deputies
including Allen arrested Land at his home. Land was initially
charged as a principal to trafficking 28 grams or more—an error in
quantity—of methamphetamine. Smith was also arrested and
charged with methamphetamine trafficking, and he later pleaded
no contest to a lesser charge and received a 60-month sentence.
Immediately after the arrests, Bellamy called Allen to tell
him that he had gotten the “specifics of it”— the vehicle where the
purchase occurred and whether Land knew about the drugs—
wrong. Allen allegedly told her to “keep [her] mouth shut.”
Land spent over six months in jail. In January 2017, his bond
was reduced, so he paid it and was released. In October, the state
filed a nolle prosequi because Land’s role in the drug transaction was
“minimal” and the “6 months Mr. Land did in the county jail and
the additional 6 months he has remained on bond” provided suffi-
cient punishment.
Land filed suit in the district court. His complaint alleged
claims of false arrest and seizure in violation of the Fourth Amend-
ment; illegal detention in violation of the Due Process Clause of
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6 Opinion of the Court 22-12324
the Fourteenth Amendment; civil conspiracy to violate his consti-
tutional rights; and malicious prosecution, intentional infliction of
emotional distress, and negligent hiring, retention, training, or su-
pervision under Florida law. Roberts and Allen moved for sum-
mary judgment.
The district court granted summary judgment for the offic-
ers based on qualified and state immunity and because Land failed
to prove his claims. It ruled that a genuine dispute existed about
whether Allen’s affidavit misstatements were reckless, but it deter-
mined that even absent those misstatements, probable cause sup-
ported Land’s arrest. It also ruled that Land could not prove a claim
of deliberate indifference against Roberts, that any claim of pro-
longed detention arose under the Fourth Amendment and failed,
that no underlying constitutional violation supported his allegation
of civil conspiracy, and that the officers enjoyed immunity from his
claims under state law.
II. STANDARD OF REVIEW
We review de novo a summary judgement. See Washington v.
Howard, 25 F.4th 891, 897 (11th Cir. 2022). Summary judgment is
warranted if “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a).
III. DISCUSSION
We address in four parts Land’s claim that he was arrested
based on a false warrant affidavit. First, because Land challenges a
seizure based on legal process—that is, a warrant-based arrest—the
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22-12324 Opinion of the Court 7
common law tort of malicious prosecution, not false arrest, guides
our review, and Allen is entitled to qualified immunity against
Land’s claim that Allen violated the Fourth Amendment. Second,
because Allen did not violate the Fourth Amendment, Land’s fed-
eral claim against Sheriff Roberts fails. Third, Land cannot prove
any other violation of his federal rights. And fourth, state-agent and
sovereign immunity bar Land’s claims under state law.
A. Land’s Fourth Amendment Claim Against Allen is Barred by
Qualified Immunity.
Public officials acting within their discretionary authority
enjoy qualified immunity from “civil damages when their conduct
does not violate a constitutional right that was clearly established
at the time of the challenged action.” Williams v. Aguirre, 965 F.3d
1147, 1156 (11th Cir. 2020) (citation and internal quotation marks
omitted). The absence of a constitutional violation ends the analy-
sis of qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 242
(2009) (courts may engage in the steps of the analysis in any order).
If Land cannot prove that Allen violated his rights under the Fourth
Amendment, Allen is entitled to qualified immunity.
Malicious prosecution—not false arrest—provides the tort
analogue for Land’s claim that Allen violated his Fourth Amend-
ment right by arresting him pursuant to a warrant based on a prob-
able-cause affidavit containing misrepresentations. See Thompson v.
Clark, 142 S. Ct. 1332, 1337 (2022); Williams, 965 F.3d at 1158; see
also Laskar v. Hurd, 972 F.3d 1278, 1284–85 (11th Cir. 2020) (plaintiff
must prove that he was arrested based on a warrant lacking
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8 Opinion of the Court 22-12324
probable cause, and that proceedings terminated in his favor—for
example, by dismissal of charges). A challenge to a warrant-based
arrest alleges that the legal process has failed. See Williams, 965 F.3d
at 1165. Where a magistrate judge’s “probable cause determination
is predicated solely on a police officer’s false statements,” the “legal
process itself [has] go[ne] wrong.” Id. at 1158 (quoting Manuel v.
City of Joliet, 137 S. Ct. 911, 918 (2017)). The warrant “do[es] noth-
ing to satisfy the Fourth Amendment’s probable-cause require-
ment” when the judge was presented with materially incorrect in-
formation. Id. (quoting Manuel, 137 S. Ct. at 919).
The district court did not err in granting Allen qualified im-
munity because probable cause existed for the arrest. The absence
of probable cause is an element of any claim that an arresting of-
ficer violated the Fourth Amendment. See Williams, 965 F.3d at
1159 (“[T]he absence of probable cause is undoubtedly a require-
ment for a claim of malicious prosecution.”); Brown v. City of Hunts-
ville, 608 F.3d 724, 734 (11th Cir. 2010) (same for warrantless arrest).
Probable cause exists when, after considering the totality of the cir-
cumstances, “a reasonable officer could conclude” that “there was
a substantial chance of criminal activity.” District of Columbia v.
Wesby, 138 S. Ct. 577, 588 (2018) (citation and internal quotation
marks omitted); Washington, 25 F.4th at 899–902 (reconciling prec-
edents and holding that the Wesby standard applies). It is “not a high
bar.” Wesby, 138 S. Ct. at 586 (citation and internal quotation marks
omitted).
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But the nature of the probable-cause inquiry differs between
warrant-based and warrantless arrests. A warrant-based arrest ordi-
narily requires the supporting affidavit to provide probable cause
for the specific crime for which the detainee was arrested. See Wil-
liams, 965 F.3d at 1162. In contrast, officers conducting warrantless
arrests do not violate the Fourth Amendment so long as probable
cause existed to “arrest the suspect for some crime, even if it was
not the crime the officer thought or said had occurred.” Id. at 1158.
This distinction exists because persons arrested without a warrant
can be held only for a “brief period,” typically no longer than 48
hours, before being brought before a magistrate judge. Id. at 1164
(quoting Gerstein v. Pugh, 420 U.S. 103, 113–14 (1975) (internal quo-
tation marks omitted)). A longer detention requires a probable-
cause determination, made by a neutral magistrate judge, that the
arrestee committed a specific crime. See id.Because Land was detained for 6 months, we must evaluate
whether Allen’s affidavit, excluding his misstatements, provided
enough information for the magistrate judge to find probable cause
that Land committed the crime of aiding and abetting drug traffick-
ing. Williams, 965 F.3d at 1165 (reviewing whether “the legal pro-
cess justifying [the] seizure . . . was constitutionally infirm,” and
whether the “seizure would not otherwise be justified without le-
gal process”). We do not consider the subjective knowledge of the
arresting officer, later amendments not presented to a magistrate
judge, or any evidence not incorporated into the operative affida-
vit. See Williams, 965 F.3d at 1163–64; Garmon v. Lumpkin County,
878 F.2d 1406, 1409 (11th Cir. 1989) (instructing courts to consider
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10 Opinion of the Court 22-12324
“the facts that were before the magistrate” who issued the war-
rant). And we excise any intentional or reckless misstatements in
the affidavit: where an officer makes an “intentional” or “reckless
misstatement,” we evaluate “whether probable cause would be ne-
gated if the offending statement was removed.” Paez v. Mulvey, 915
F.3d 1276, 1287 (11th Cir. 2019); see also Franks v. Delaware, 438 U.S.
154, 156 (1978); Laskar, 972 F.3d at 1296.
Allen concedes that he failed to verify in which vehicle the
drug purchase took place, misrepresented that Land was a target of
investigation, and erroneously stated the amount of drugs in-
volved. The district court identified a genuine factual dispute about
whether those misstatements were at least reckless. So we exclude
them from our probable-cause determination. But contrary to our
dissenting colleague’s assertion, we need not excise the affidavit’s
statement that “Land was present” at the crime scene—the Dollar
General parking lot—because it is a true statement. Land’s presence
in the parking lot, after he drove himself and Smith there, was ver-
ified by the Jackson County surveillance team, who accurately pro-
vided Allen with Land’s name and identity. Nobody disputes that
Land was present. Land’s counsel agreed at oral argument that af-
ter excising the erroneous facts, the affidavit still established that
Land was “the driver of the vehicle that went to a predetermined
drug deal” and that he “waited until” the deal was completed. In-
deed, counsel responded that Land’s “presence at the scene of a
crime is not enough” to establish probable cause. But Land’s con-
tinued presence is an important factor in the probable cause deter-
mination.
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22-12324 Opinion of the Court 11
Our dissenting colleague suggests we should consider Al-
len’s subjective intent and deposition testimony in construing his
affidavit. But we cannot consider an arresting officer’s subjective
intent or extrinsic evidence when evaluating whether probable
cause existed for a process-based seizure. See Williams, 965 F.3d at
1163–64. And were we to open the door to deposition testimony,
it would favor the finding that Land was present and had the requi-
site intent to aid the drug sale. For example, Allen testified that
Smith had told him that Land was using drugs immediately before
the transaction and had agreed to drive Smith to the transaction as
payment for drugs; Smith testified that Land knew that Smith was
a drug dealer; and Bellamy testified that Land was a “really good
friend,” that Land and Smith had previously used methampheta-
mine together, and that the two confidential informants at the
crime scene had entered Land’s truck while the drug sale was hap-
pening.
Even without Allen’s misstatements, the initial affidavit pro-
vided probable cause to support Land’s arrest as a principal to
methamphetamine trafficking. Under Florida law, aiding and abet-
ting requires an act in furtherance of the underlying crime, per-
formed with the intent that the crime be committed. See Staten v.
State, 519 So. 2d 622, 624 (Fla. 1988). Allen’s affidavit described an
overt act furthering drug trafficking: it explained that Land drove
Smith to the clandestine purchase location. And the affidavit pro-
vided details from which a factfinder could infer Land’s culpable
intent. A drug sting was ongoing, Land arrived with the sting’s tar-
get to the location at the prearranged time, and Land stayed for the
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duration of the surveilled transaction—all facts giving rise to the
inference that Land intended to aid the suspicious happenings.
From these facts, the magistrate judge could reasonably find that
Land played a criminal role. See United States v. Irurzun, 631 F.2d 60,
63 (5th Cir. Unit B 1980) (“While presence alone is not enough to
constitute probable cause, presence and additional factors that
would lead a prudent person to believe that an offense has been or
is being committed is sufficient.”).
Land contends that “mere propinquity” or proximity to
criminal activity “without more” does not give rise to probable
cause. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979). But the only bind-
ing precedent that Land cites is distinguishable. In that case, United
States v. Virden, we held that officers lacked probable cause for the
warrantless arrest of an individual who emerged from one of nine
properties under police surveillance, where no active sting was be-
ing conducted. 488 F.3d 1317, 1319–20 (11th Cir. 2007). Here, in
contrast, Land drove an acquaintance, the target of an active drug
bust, to a predetermined location and remained present as the tar-
get completed the sale. See Maryland v. Pringle, 540 U.S. 366, 373
(2003) (being in the front passenger seat of car with cocaine estab-
lished probable cause because “a car passenger . . . will often be
engaged in a common enterprise with the driver” and a drug dealer
“would be unlikely to admit an innocent person” into his criminal
enterprise because that person has “the potential to furnish evi-
dence against him”) (internal quotation marks omitted); United
States v. Ashcroft, 607 F.2d 1167, 1172 (5th Cir. 1979) (being present
in an apartment within earshot of a drug deal on two separate
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22-12324 Opinion of the Court 13
occasions is enough for probable cause because “a drug sale involv-
ing large quantities of [drugs] is a private transaction that does not
usually occur in the open or in the presence of strangers”). Land’s
role as the driver involved more than proximity; he assisted Smith
with what appeared to be a shared intent to sell methampheta-
mine. Allen is entitled to qualified immunity from Land’s claim that
he violated the Fourth Amendment.
B. Land’s Fourth Amendment Claim Against Sheriff Roberts Fails.
Land argues that Sheriff Roberts violated his Fourth Amend-
ment right by permitting Allen to illegally arrest him. Land sued
Roberts, in his official capacity, for damages. See 42 U.S.C. § 1983;
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–92 (1978) (respondeat
superior is not available in a section 1983 claim). To seek damages
from the Office of the Sheriff, Land had to establish “(1) that his
constitutional rights were violated; (2) that the [municipal office]
had a custom or policy that constituted deliberate indifference to
that constitutional right; and (3) that the policy or custom caused
the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.
2004) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)).
Land’s claim fails at the first step. A Monell claim is derivative
of—and so requires—an actual constitutional violation by an of-
ficer. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a
person has suffered no constitutional injury at the hands of the in-
dividual police officer, the fact that the departmental regulations
might have authorized the [constitutional violation] is quite beside
the point.”). Because Allen never violated Land’s Fourth
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14 Opinion of the Court 22-12324
Amendment right, Roberts cannot be held liable for constitution-
ally deficient supervision.
C. Land Cannot Prove Any Other Violation of His Constitutional Rights.
Land argues that the officers illegally “over-detained” him,
in violation of the Due Process Clause of the Fourteenth Amend-
ment, when they failed to release him after allegedly exculpatory
evidence eliminated probable cause. But this argument does not
sound in due process. The Fourth Amendment, not the Four-
teenth, provides the “explicit textual source of constitutional pro-
tection” for a detainee who alleges that he was arrested and held
without probable cause. Alcocer v. Mills, 906 F.3d 944, 955 (11th Cir.
2018) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989) (internal
quotation marks omitted)). Land’s argument that new evidence vi-
tiated probable cause and vindicated his innocence is properly con-
sidered under the Fourth Amendment. See Washington, 25 F.4th at
898 (a challenge to “a seizure based on a warrant [] supported by
probable cause but [] later undermined by contrary exculpatory ev-
idence” arises under the Fourth Amendment). And we have al-
ready explained that no violation of the Fourth Amendment oc-
curred because Land’s arrest warrant was supported by probable
cause.
Land’s argument that Allen conspired to violate his consti-
tutional rights, see 42 U.S.C. § 1983, fails for the same reason: Land
cannot identify an underlying constitutional violation. “A plaintiff
may state a § 1983 claim for conspiracy to violate constitutional
rights by showing a conspiracy existed that resulted in the actual
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22-12324 Opinion of the Court 15
denial of some underlying constitutional right.” Grider v. City of Au-
burn, 618 F.3d 1240, 1260 (11th Cir. 2010) (emphasis added). In the
absence of a constitutional violation, Land cannot prove a deriva-
tive-conspiracy claim.
D. Land’s Florida Law Claims are Barred by Statutory and Sovereign
Immunity.
Land’s state-law claims against Allen are barred by state-
agent immunity. See FLA. STAT. § 768.28(9)(a). Florida law shields
an officer from personal liability for acts within the scope of his em-
ployment unless he “acted in bad faith or with malicious purpose
or in a manner exhibiting wanton and willful disregard of human
rights, safety, or property.” Id. Because probable cause existed for
his arrest, Land cannot establish that Allen acted in bad faith or
with malicious purpose. See Burns v. GCC Beverages, Inc., 502 So. 2d
1217, 1218 (Fla. 1986) (malicious prosecution requires lack of prob-
able cause); Bolanos v. Metropolitan Dade County, 677 So. 2d 1005,
1005 (Fla. Dist. Ct. App. 1996) (same for false arrest). The “standard
for determining the existence of probable cause is the same under
both Florida and federal law.” Rankin v. Evans, 133 F.3d 1425, 1433
(11th Cir. 1998). And Land’s claim of intentional infliction of emo-
tional distress fails too. Hart v. United States, 894 F.2d 1539, 1548
(11th Cir. 1990) (tort requires “outrageous conduct”) (citing Metro.
Life Ins. v. McCarson, 467 So. 2d 277, 278 (Fla. 1985)). Whether con-
duct is outrageous is a question of law, and the conduct must be
“so extreme in degree, as to go beyond all possible bounds of de-
cency.” Metro. Life, 467 So. 2d at 278–79. That bar is not met be-
cause Allen’s affidavit, even without the misstatements, supplied
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16 Opinion of the Court 22-12324
probable cause to believe that Land had engaged in criminal activ-
ity.
Land’s negligence claims against Sheriff Roberts are barred
by sovereign immunity. Municipalities and their officers are enti-
tled to immunity from tort liability except where that immunity is
explicitly waived. FLA. STAT. § 768.28(1); FLA. CONST. art. X, § 13.
Florida retains immunity from liability arising from “discretionary”
government functions but waives immunity for “operational”
functions. Kaisner v. Kolb, 543 So. 2d 732, 736 (Fla. 1989). A discre-
tionary function involves an exercise of executive power where the
court’s “interven[ing] by way of tort law” would “inappropriately
. . . entangle it[] in fundamental questions of policy and planning.”
Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092,
1118 (11th Cir. 2005) (citing Henderson v. Bowden, 737 So. 2d 532,
538 (Fla. 1999)). Under Florida law, the training of police deputies
is a discretionary function because it is intertwined with the policy
and planning of law enforcement. See Lewis v. City of St. Petersburg,
260 F.3d 1260, 1266 (11th Cir. 2001) (“[Deputies’ training] is clearly
an exercise of governmental discretion.”). The same logic applies
to department policy in the hiring or retention of deputies.
IV. CONCLUSION
We AFFIRM the summary judgment in favor of Allen and
Sheriff Roberts
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22-12324 ABUDU, J., Dissenting 1
ABUDU, Circuit Judge, Dissenting:
Land was incarcerated for over six months without any
hearing on the merits of his charges, based entirely on a warrant
and affidavit plagued with false statements. The Majority never-
theless finds the limited, true facts in the affidavit sufficient to es-
tablish probable cause to charge Land with trafficking metham-
phetamine. I disagree.
I. BACKGROUND
While the Majority Opinion’s recitation of the facts is gener-
ally correct, further detail and some clarifications are needed to
paint the full picture of the issues before us. As an initial matter,
the nature and impact of Land’s arrest should not be understated.
As Land testified, he spent most of June 24, 2016, with his family at
a state park. Shortly after returning home, Land was confronted at
his doorstep by a host of officers from the Jackson County Sheriff’s
Office, including Allen. Despite the presence of Land’s family, in-
cluding his wife, grandmother, and young children, multiple offic-
ers drew their firearms on Land. Allen arrested Land, told him he
was charged with trafficking methamphetamine, and stated that
“[t]his is for all the times we did not get you.”
Land’s misfortune did not end with the circumstances of his
arrest. Land was incarcerated in the Jackson County Jail for 207
days after being unable to post bail, which was initially set at
$100,000. The state then reduced Land’s bond to $47,000, which
he had to borrow money to satisfy. While Land was incarcerated,
he was unable to work or make child support payments, and his
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2 ABUDU, J., Dissenting 22-12324
driver’s license was suspended. Since being released, Land has
been unable to properly process the distress of his arrest and incar-
ceration without the aid of a professional counselor. Most im-
portantly to Land, his pretrial detention cost him months of time
with his children. When the state finally filed its nolle prosequi, there
was no acknowledgement of the bungled investigation that led to
Land’s incarceration. To the contrary, the state framed the action
as granting Land a lenient sentence of six months for his minimal
role in the alleged crime. This framing by the state assumed Land’s
guilt, even though he was never tried, much less convicted, of the
alleged crime.
In addition, the relevant false statements in the warrant
should be precisely identified. There are three false statements in
the warrant affidavit that should be set aside before considering
whether the remaining content of the affidavit supports a finding
of probable cause. See Franks v. Delaware, 438 U.S. 154, 155–56,
171–72 (1978) (holding that probable cause cannot be established
by making recklessly or deliberately false statements). In particu-
lar, the affidavit states that (1) Land was a previously identified tar-
get of the undercover investigation, (2) “Land was present and did
oversee the transaction as it took place inside his vehicle,” and
(3) the undercover officer confirmed that Land was “present during
the transaction.” Allen testified that each of these statements was
false. Specifically, Allen stated that Land was not a target of the
investigation, and when asked to state the probable cause support-
ing Land’s arrest, Allen’s entire answer was: “He drove [Mr.] Smith
to conduct a drug deal.” In fact, Allen admitted that the only
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22-12324 ABUDU, J., Dissenting 3
evidence that Land was involved in a drug deal was that he drove
Smith to the location of the drug transaction. Allen also conceded
that he never confirmed with the undercover officers or others that
Land was present during the drug sale. Although it is undisputed
that Land remained in his vehicle during the drug transaction and
that the transaction took place in a separate vehicle in the parking
lot, there is no evidence in the record showing that Land personally
witnessed the transaction.
Despite the evidence above, the Majority declines to set
aside as false the statements in the warrant affidavit indicating that
Land was present. In support of this decision, the Majority points
to the undisputed fact that Land was present in the parking lot at
the time of the transaction. However, Allen testified that his refer-
ence to Land’s presence in the warrant affidavit was intended to
communicate that Land was present in the vehicle in which the
drug transaction occurred, not that Land was present in the parking
lot generally. Moreover, it is more than reasonable to conclude
that the magistrate also interpreted “present” to mean, albeit
falsely, that Land was actually in the vehicle where the drug trans-
action occurred and personally witnessed it happen. Viewed in the
context of the other false statements and Allen’s testimony of his
intent in preparing the warrant affidavit, the statement to the mag-
istrate judge that Land was “present” during the drug deal was
recklessly false.
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4 ABUDU, J., Dissenting 22-12324
II. DISCUSSION
A. Land’s Claim Depends on the Content of the Affidavit Support-
ing Land’s Arrest Warrant.
Because Land’s Section 1983 claim is premised on his arrest
that was based on a warrant, it is properly considered as a claim for
malicious prosecution pursuant to legal process. Williams v.
Aguirre, 965 F.3d 1147, 1158 (11th Cir. 2020). To succeed on a ma-
licious prosecution claim, Land must establish “(1) that the legal
process justifying his seizure was constitutionally infirm and
(2) that his seizure would not otherwise be justified without legal
process.” Id. at 1165. There is no evidence in the record that Al-
len’s amended affidavit was ever presented for a probable cause de-
termination or that there was some justification for Land’s deten-
tion other than the initial affidavit. Accordingly, Land’s claim is
contingent upon whether the first affidavit sufficiently established
probable cause for the crime alleged – being a principal to traffick-
ing methamphetamine in violation of Florida law. See FLA. STAT.
§ 893.135(1)(f)(1); Williams, 965 F.3d at 1165 (holding that in cases
of malicious prosecution brought pursuant to a purportedly faulty
warrant, we must “examine[] whether probable cause existed from
‘the facts that were before the magistrate who issued the warrant.’”
(quoting Garmon v. Lumpkin County, 878 F.2d 1406, 1409 (11th Cir.
1989)).
A warrant supporting an arrest is constitutionally infirm if
“an official . . . intentionally or recklessly made misstatements or
omissions necessary to support the warrant.” Williams 865 F.3d at
1165. In such cases, this Court employs a two-part test for
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22-12324 ABUDU, J., Dissenting 5
evaluating whether the misstatements amount to a Fourth Amend-
ment violation. Paez v. Mulvey, 915 F.3d 1276, 1287 (11th Cir. 2019).
First, we excise any intentional or reckless misstatements or omis-
sions from the warrant. Id. Second, we examine the warrant to
determine if it establishes probable cause without those misstate-
ments. Id.; see also United States v. Kirk, 781 F.2d 1498, 1502 (11th
Cir. 1986) (“[W]e must consider: (1) whether the alleged misstate-
ments in the affidavit were made either intentionally or in reckless
disregard for the truth, and, if so, (2) whether, after deleting the
misstatements, the affidavit is insufficient to establish probable
cause.” (citing Franks, 438 U.S. 154)). Thus, our analysis of proba-
ble cause in this case is constrained to the facts contained in the
warrant once the misstatements have been excised. See W. Point-
Pepperell, Inc. v. Donovan, 689 F.2d 950, 959 (11th Cir. 1982) (“[J]udi-
cial review of the sufficiency of an affidavit for the issuance of a
warrant must be strictly confined to the information brought to the
magistrate’s attention.”).
The determination of probable cause requires an analysis of
“the totality of the circumstances to determine the reasonableness
of the officer’s belief that a crime has been committed.” Paez, 915
F.3d at 1286. Although probable cause is “not a high bar,” it still
requires the official to show “a probability or substantial chance of
criminal activity.” District of Columbia v. Wesby, 583 U.S. 48, 57
(2018). The Supreme Court has explained that probable cause “ex-
ists where the facts and circumstances . . . are sufficient in them-
selves to warrant a man of reasonable caution in the belief that an
offense has been or is being committed.” Ker v. California, 374 U.S.
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6 ABUDU, J., Dissenting 22-12324
23, 35 (1963) (citation and punctuation omitted). Proximity to oth-
ers suspected of criminal activity, without more, is insufficient to
establish probable cause, and a seizure does not comport with the
Fourth Amendment unless it is supported by probable cause par-
ticularized to the individual seized. See Ybarra v. Illinois, 444 U.S.
85, 92 (1979).
While our discussion of case law establishing probable cause
includes cases asserting claims other than malicious prosecution,
the standard to establish probable cause does not change based on
the underlying tort. Rather, the distinction between those cases is
which particular facts should be considered when determining
whether probable cause exists. As explained above, in this instance,
the only facts considered in assessing probable cause are the true
facts in the warrant affidavit. See Williams, 965 F.3d at 1165.
B. Without the False Statements, Land’s Arrest Warrant Does
Not Establish Probable Cause for the Alleged Crime.
With the three intentionally 1 or recklessly made false state-
ments properly excised, Allen’s affidavit does not establish proba-
ble cause to arrest Land as a principal to trafficking
1 While our legal analysis of Land’s malicious prosecution claim is constrained
to the few, true facts in the warrant affidavit, the evidence of Allen’s likely
intent and alleged history of unethical behavior is worth noting. The evidence
in the record indicates that Allen (1) was investigated for failing to disclose
legal proceedings against him for possession of marijuana, (2) was suspended
for having a woman in his law enforcement vehicle and in a hotel room with
him, in violation of the sheriff’s office’s policies, and (3) was reprimanded for
violating the sheriff’s office’s policy on social media usage.
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22-12324 ABUDU, J., Dissenting 7
methamphetamine. The first three paragraphs of the affidavit,
without false statements, establish solely that on June 20, 2016, the
Jackson County Sheriff’s Office conducted an undercover opera-
tion targeting Smith, whereby undercover law enforcement offic-
ers and confidential informants drove to a prearranged meeting lo-
cation to make contact with and purchase methamphetamine from
Smith. After excising the other false statements, the third para-
graph, which includes the only true information particular to Land,
reads as follows:
Upon arrival, [Confidential Informant] 350 conducted
a transaction with Smith providing the currency in ex-
change for approximately 30.54 grams of suspected
crystal [m]ethamphetamine, which meets and ex-
ceeds the minimum mandatory trafficking require-
ments. Smith was driven to the meeting location by
Jeffery Tyler Land and Land was present and did
oversee the transaction as it took place inside his ve-
hicle. Land was also positively identified by the un-
dercover officer as the driver of the vehicle and the
person being present during the transaction.
Simply put, excluding Allen’s false statements, the warrant affidavit
only indicates that (1) Smith participated in a drug transaction, and
(2) Land drove Smith to the location where the drug transaction
occurred. The warrant is silent as to any involvement on Land’s
part. It does not indicate that Land helped set up the drug transac-
tion, that he was aware that a drug transaction was going to occur,
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8 ABUDU, J., Dissenting 22-12324
or that he would benefit in any way from Smith’s actions. Exclud-
ing the false statements in the warrant, there was no probable cause
for a magistrate judge to issue an arrest warrant for Land accusing
him of being a “principal to trafficking methamphetamine” under
Florida law. Pertinently, a defendant is culpable as a principal to a
violation of Florida law only if he “‘had a conscious intent that the
criminal act be done and . . . the defendant did some act or said
some word which was intended to and which did incite, cause, en-
courage, assist, or advise the other person or persons to actually
commit or attempt to commit the crime.’” Hall v. State, 100 So. 3d
288, 289 (Fla. Dist. Ct. App. 2012) (quoting Smith v. State, 76 So. 3d
1056, 1058 n.3 (Fla. Dist. Ct. App. 2011). Even knowledge of the
offense being committed or presence at the scene of the crime ac-
companied by flight are, without more, insufficient to demonstrate
the requisite intent. Id. Because the warrant contains no true facts
supporting a finding that Land had a conscious intent to further
Smith’s crime, it does not establish probable cause that Land was a
principal to the crime.
C. The Majority Opinion Revises the Warrant for a Post Hoc
Finding of Probable Cause.
The Majority Opinion finds that the remaining factually cor-
rect text in the warrant affidavit established probable cause for
Land’s arrest, but this finding is based heavily on the statements
indicating that Land was present during the drug transaction. In
particular, the Majority holds that “Land’s presence at the crime
scene is critical to establishing probable cause.” Maj. Op. at 11.
However, Land’s presence as characterized by the Majority does
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22-12324 ABUDU, J., Dissenting 9
not carry the same meaning as was communicated to the magis-
trate in the warrant affidavit. As discussed above, the other false
statements in the warrant paint a picture that Land’s presence as
described in the affidavit meant he was in the same vehicle in which
the drug sale occurred. Because Allen admits that he intended to
convey that Land witnessed the drug deal, there can be no retroac-
tively applied clarification of Land’s physical location during the
drug transaction to now justify Land’s unlawful arrest.
With Allen’s intentional or reckless misstatements omitted,
see Paez, 915 F.3d at 1287, the warrant affidavit establishes only that
Land drove Smith to the site of the drug transaction. There is no
indication in the remaining text of the warrant that Land waited for
the transaction to complete or was otherwise present for its occur-
rence. As explained above, our analysis in this case is constrained
to the four corners of the warrant affidavit. See Whitely, 401 U.S. at
564–65, n.8; Williams, 965 F.3d at 1162. The failure to limit the
analysis of Land’s malicious prosecution claims to the true facts
presented in the warrant affidavit devalues the magistrate’s initial
probable cause determination and substitutes a new probable cause
determination long after the unlawful detention began.
D. The Warrant Affidavit Fails to Establish Probable Cause
Whether or Not Land’s Presence Is Considered.
Even if the word “present” is not excised from the warrant
affidavit and did mean Land was in the parking lot but not the car
(which, again, Allen testified was not the intended meaning), the
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10 ABUDU, J., Dissenting 22-12324
remaining language in the warrant affidavit still fails to establish
probable cause.
Most significantly, the Supreme Court’s holding in United
States v. Di Re forecloses the possibility of finding probable cause
solely based on physical presence. 332 U.S. 581 (1948). In Di Re, an
investigator was told by an informant that a certain individual
would be unlawfully distributing counterfeit gasoline ration cou-
pons at a designated time and place. Id. at 583. The named indi-
vidual was discovered in a vehicle at the location with the coupons
on his person, but that individual was accompanied by Di Re. Id.The government argued that Di Re’s presence in the car with the
other individual involved in a crime at the time and location recited
by the informant was sufficient to establish probable cause to arrest
Di Re. Id. at 593. The Court disagreed and found those facts, with-
out more, could not establish probable cause. Id. In rejecting the
government’s contention, the Court explained that “[t]he argu-
ment that one who ‘accompanies a criminal to a crime rendezvous’
cannot be assumed to be a bystander, forceful enough in some cir-
cumstances, is farfetched when the meeting is not secretive or in a
suspicious hide-out but in broad daylight, in plain sight of pass-
ersby, in a public street of a large city, and where the alleged sub-
stantive crime is one which does not necessarily involve any act
visibly criminal.” Id.The facts in the warrant affidavit here mirror the govern-
ment’s argument in Di Re. Land’s act of accompanying Smith to a
crime scene in broad daylight where an informant indicated that
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22-12324 ABUDU, J., Dissenting 11
Smith, not Land, would conduct a drug transaction provides no ad-
ditional indicia of criminal activity on Land’s part. Because a target
of the investigation other than Land was identified by the inform-
ant and because the warrant lacks additional facts from which a
magistrate could conclude that Land was involved in the drug
transaction, the holding in Di Re is indistinguishable and compels
us to find that there was no probable cause established by Allen’s
warrant affidavit.
The lack of probable cause in the warrant affidavit is also
demonstrated by this Court’s prior decision in United States v.
Virden. In Virden, we rejected the argument that law enforcement
officers had probable cause, even with significant evidence of the
suspect’s involvement in drug activity. 488 F.3d 1317, 1322 (11th
Cir. 2007). In that case, the officers knew that “(1) [the suspect] left
a location of suspected drug activity, (2) he appeared to have con-
trol over the [location’s] garage because the garage door closed
without anyone else being seen, and (3) he misstated exactly where
he had been to the police.” Id. Yet, we observed that these facts,
without more, were insufficient to establish probable cause. Id.Here, the warrant affidavit establishes no more evidence than that
considered in Virden, and a finding of probable cause to arrest Land
is inconsistent with our holding in that case.
In support of its holding, the Majority cites to Maryland v.
Pringle, 540 U.S. 366 (2003) and United States v. Ashcroft, 607 F.2d
1167 (5th Cir. 1979), but in Pringle, the defendant was arrested in a
vehicle at 3:16 a.m. with drugs and $763 of cash within his reach.
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12 ABUDU, J., Dissenting 22-12324
Pringle, 540 U.S. at 371–72. The Supreme Court considered the to-
tality of all these factors, including the presence of the cash and the
drugs within the defendant’s reach, in finding there was probable
cause to arrest the defendant. See id. at 372 n.2. Ashcroft also is
inapposite because the court’s analysis there relied heavily upon
the arresting officers’ knowledge that the defendant had been pre-
sent at a prior drug transaction, during which the defendant “was
sitting only two feet away from the negotiations and heard all that
transpired.” Ashcroft, 607 F.2d at 1171. Even if we consider that
Land was in the same parking lot as the drug transaction, there is
nothing in the warrant affidavit indicating that Land was within
two feet of the transaction or was otherwise aware that it occurred.
Pringle and Ashcroft involve facts pointing to arrestees with substan-
tially higher involvement in the alleged crime than Land had here,
and neither case should lead us to conclude that the warrant affida-
vit established probable cause to arrest Land.
As described above, the legal process by which Land was ar-
rested, relying upon Allen’s recklessly if not intentionally false war-
rant affidavit, did not meet the standard of probable cause. We
should decline to expressly permit such baseless arrests without
consequence, particularly when we consider the six-month deten-
tion Land endured. Otherwise, this Court widens the door for fu-
ture bad actors to intentionally and maliciously draft bare-bones
warrants, unsupported by thorough investigations, and to do so
with no fear of consequences for any false statements therein. In
sum, probable cause demands more evidence than what was pro-
vided in the warrant affidavit here.
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22-12324 ABUDU, J., Dissenting 13
III. CONCLUSION
The district court’s grant of summary judgment as to each
of Land’s claims is premised upon its finding that Allen had proba-
ble cause to arrest Land. Because Allen’s affidavit in support of the
arrest warrant, excluding the false statements, did not establish
probable cause, this Court should remand this case for further pro-
ceedings.
For the foregoing reasons, I respectfully dissent.