IN THE SUPREME COURT STATE OF FLORIDA CASE NO. DISTRICT COURT OF APPEALS CASE NO. 2D CITY OF ST. PETERSBURG, Petitioner,

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1 IN THE SUPREME COURT STATE OF FLORIDA CASE NO. DISTRICT COURT OF APPEALS CASE NO. 2D CITY OF ST. PETERSBURG, Petitioner, v. DONALD AUSTRINO and MARIA AUSTRINO, his wife Respondent. BRIEF OF PETITIONER ON JURISDICTION On Discretionary Review From a Decision of the Second District Court of Appeal JOHN C. WOLFE City Attorney By: DEBORAH GLOVER-PEARCEY Assistant City Attorney City of St. Petersburg P.O. Box 2842 St. Petersburg, FL (727) /FBN: Counsel for Petitioner 1

2 TABLE OF CONTENTS Page TABLE OF CONTENTS... i TABLE OF AUTHORITIES...i-ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 THE SECOND DISTRICT'S APPLICATION OF A "REASONABLE INVESTIGATION" AND "NEGLIGENCE" ELEMENT TO LAW ENFORCEMENT'S DETERMINATION OF PROBABLE CAUSE FOR A WARRANTLESS ARREST WHEN FALSE ARREST IS AN INTENTIONAL TORT, AND THAT ALLOWING THE POST-ARREST INVESTIGATION REPORT AND OPINION TESTIMONY ON PROBABLE CAUSE IS IN DIRECT AND EXPRESS CONFLICT WITH DECISIONS OF OTHER DISTRICT COURTS OF THIS STATE AND THE SUPREME COURT ON THE SAME QUESTION OF LAW CONCLUSION... 9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF COMPLIANCE...10 TABLE OF AUTHORITIES Cases: Page City of Miami v. Sanders, 672 So.2d 46 (Fla. 3d DCA 1996)...5 City of Orlando v. Ralph Kazarian, 481 So.2d 506 (Fla. 5th DCA 1986)...6 City of St. Petersburg v. Reed, 330 So.2d 256 (Fla. 2d DCA 1976)...8 Commercial Carrier Corp. v. Indian River City, 371 So.2d 1010 (Fla. 1979)...4 Dickinson v. Gonzalez, 839 So.2d 709 (Fla. 3d DCA)... Dodds v. State, 434 So.2d 940 (Fla. 4th DCA 1983)...7 Everton v. Willard, 468 So.2d 936 (Fla. 1985)...6 Florida Game and Freshwater Fish Comm'n Dockery, 676 So.2d 471 (Fla. 1st DCA 1996)...7 Kayfetz v. A. Best Roofing, Inc., 832 So.2d 784 (Fla. 3d DCA 2002)...8 i

3 Lee v. Geiger, 419 So.2d 717 (Fla. 1st DCA 1982)...6 Smith v. State, 363 So.2d 21 (Fla. 3d DCA 1978)...6 State v. Smith, 450 S.2d 480 (Fla. 1984)...6 Town of Palm Beach v. Palm Beach County, 460 So.2d 879, 882 (Fla. 1984)...8 Trianon Park Condo Association, Inc. v. City of Hileah, 468 So.2d 912 (Fla. 1985)... 4, 5 Wong v. City of Miami, 237 So.2d 132 (Fla. 1970)...6 Statutes: F.S. ' (1998)...8 Section , Florida Statutes (1997)...1 Other: Article V, ' 3(b)(3), Fla. Const...1 Fla.R.App.P (a)(2)(A)(iv)...1 ii

4 STATEMENT OF THE CASE AND FACTS By this Petition and pursuant to Article V, ' 3(b)(3), Fla. Const. and Fla.R.App.P (a)(2)(A)(iv), City of St. Petersburg ("CITY") seeks discretionary review on the Second District's decision, a copy of which is appended hereto at A-1 (Motion For Rehearing, En banc, and for Rehearing and Clarification denied April 20, 2005). Austrino was arrested for prescription fraud, a violation of Section , Florida Statutes (1997), by altering a prescription to obtain an unauthorized refill for vicodin, a controlled substance. A Walgreens pharmacist called the police to report the crime. The arrest was made without a warrant based on the officers determination of probable cause after interviewing the pharmacist at Walgreens, where the prescription had been presented, obtaining and reviewing the prescription, interviewing the suspect and contacting the pharmacist again. The charge was dismissed after it was later determined that the refill was valid. Austrino sued the City for false arrest and the City moved for Summary Judgment on probable cause, which was denied. At trial before the jury, the post-arrest internal investigation report and testimony of the internal investigation officer who prepared the report was admitted into evidence. That report indicated that the arresting officer did not have Aenough@ probable cause, it was incumbent upon the officer and pharmacist to contact the prescribing doctor, and the officer did not use proper investigative techniques in violation of a departmental rule. That same internal investigation Officer admitted at 1

5 trial that only the arresting officer can determine if probable cause existed at the time of arrest. The jury returned a verdict against the City in the amount of $45,000.00, finding the City ninety percent negligent. 1 The City filed an appeal of the jury findings of liability for false arrest and damages alleging error in the Circuit Court's decision on probable cause, admission of evidence of post arrest matters and prejudicial opinion testimony on the issue of probable cause. The Second District, on February 9, 2005, affirmed on all points raised writing only to comment on the issue of probable cause and summary judgment. The majority Court opined that because the evidence in all inferences led inevitably to the conclusion that Austrino was arrested without a "reasonable investigation" it held that the facts and circumstances known to the officer were insufficient to give rise to probable cause. 2 The Court recognized that a single credible victim or eye witness can provide the basis for probable cause, but because of the hearsay nature of the information provided by the pharmacist opined that it was incumbent upon the officer to further investigate whether there was probable cause to believe a crime had been committed. The dissent opined that the City was entitled to Summary Judgment on the issue of probable cause. 3 1 The co-defendant, Walgreen's settled before trial, but the jury found it ten percent negligent. 2 See Opinion page 5, paragraph 2. The majority struggled with finding otherwise, because then the City was entitled to summary judgment as a matter of law since there were no material facts in dispute, but found significance in an arrest that occurs at 5:00 a.m. 3 The dissent opined that although Austrino was arrested based on information ultimately determined to be inaccurate, at the time of arrest the officer had an adequate basis for probable cause. 2

6 The majority affirmed the admissibility of the post-arrest internal affairs investigation report and opinion testimony on probable cause. SUMMARY OF ARGUMENT Probable cause to make an arrest is an objective standard that is based on what an arresting officer reasonably believes at the time of arrest. The law of probable cause is clearly defined by statutory and case law. The determination is applied on a case by case basis and the type of crime committed has a direct bearing on the probable cause determination. The majority concluded that the officer was negligent by not conducting a reasonable investigation. The claim of false arrest is an intentional tort and not based on a negligence theory. To uphold the majority's analysis of applying a "reasonable investigation" element to probable cause is in direct and express conflict with statutory and case law and is barred by the doctrine of sovereign immunity. The majority=s affirmance of the admission of a post-arrest investigative report and opinion testimony on probable cause is in direct and express conflict with opinions holding that subsequent information does not negate the probable cause that existed at the time of arrest. This court should accept jurisdiction. ARGUMENT THE SECOND DISTRICT'S APPLICATION OF A "REASONABLE INVESTIGATION" AND "NEGLIGENCE" ELEMENT TO LAW ENFORCEMENT'S DETERMINATION OF PROBABLE CAUSE FOR A WARRANTLESS ARREST WHEN FALSE ARREST IS AN INTENTIONAL 3

7 TORT, AND THAT ALLOWING THE POST-ARREST INVESTIGATION REPORT AND OPINION TESTIMONY ON PROBABLE CAUSE IS IN DIRECT AND EXPRESS CONFLICT WITH DECISIONS OF OTHER DISTRICT COURTS OF THIS STATE AND THE SUPREME COURT ON THE SAME QUESTION OF LAW The case before this Court was brought as a false arrest case, but the majority effectively converts the intentional tort of false arrest into a negligence claim by reformulating the traditional probable cause standard to incorporate a reasonableness-ofinvestigation requirement. This analysis conflicts with Court decisions in Trianon Park Condo Ass'n v. City of Hialeah, 468 So.2d 912 (Fla. 1985), Everton v. Willard, 468 So.2d 936 (Fla. 1985) and Commercial Carrier Corp. v. Indian River City, 371 So.2d 1010, 1022 (Fla. 1979)("[h]ow) a governmental entity, through its officials and employees exercises its discretionary power to enforce compliance with the laws duly enacted by the governmental body is a matter of governance, for which there has never been a common law duty of care." Trianon 468 So.2d at 919. By introducing a "reasonableinvestigation" component into the traditionally-accepted analysis for probable cause in a false arrest action, the majority effectively reformulates the Florida standard for probable cause and introduces a negligence element into the intentional tort of false arrest. 4 This transformation of the cause of action to one for negligence overlooks and blurs the traditional distinctions between negligence and intentional torts which have been 4 The confusing commingling of intentional tort and negligence concepts is apparent in the jury verdict which assigned ninety percent negligence to the City in this false arrest case. 4

8 made by other district courts as there is no cause of action for negligent commission of an intentional tort. City of Miami v. Sanders, 672 So.2d 46 (Fla. 3d DCA 1996). If the decision is allowed to stand as is, the judiciary will be drawn into scrutinizing criminal investigations in hindsight for reasonableness whenever false arrest is alleged, and government will be subjected to potential negligence liability for a function central to law enforcement which previously has not been subject to such liability. The majority=s reformulation of the standard and analysis for probable cause also puts the decision in direct and express conflict with a long line of cases establishing that there is no viable cause of action against law enforcement for negligent criminal investigation or negligent arrest in Florida. Likewise there is no cause of action for negligent arrest and investigation. Lee v. Geiger, 419 So.2d 717 (Fla. 1st DCA 1982); Everton v. Willard, 468 So.2d 936 (Fla. 1985); and City of Orlando v. Ralph Kazarian, 481 So.2d 506, 507 (Fla. 5th DCA 1986) (holding that a claim against a municipality based on negligent investigation is barred under Everton, supra and Wong v. City of Miami, 237 So.2d 132 (Fla. 1970). While the majority acknowledges that information from a single credible victim or eye witness can provide the basis for probable cause, the Court held that it did not apply here because, in the majority's opinion, the officer undertook no investigation of his own but relied solely upon that undertaken by the pharmacist. This ruling is in direct and express conflict with Lee v. Geiger, 419 So.2d 717 (Fla. 1st DCA 1982) rhg. denied, (no 5

9 liability for false arrest based on imperfect investigation); and State v. Smith, 450 So.2d 480 (Fla. 1984), (probable cause determinations may be based on hearsay and veracity of information relied on is not required to be shown by both credibility of informant and reliability of information). Indeed, under existing Florida law once such facts are within the officer=s knowledge, he or she has a duty to arrest. See Smith v. State, 363 So. 2d 21, 23 (Fla. 3d DCA 1978) (citing various Florida Supreme Court cases.) The Court overlooks the fact that in addition to the information obtained from the pharmacist, the officer obtained and reviewed the prescription, interviewed the suspect and contacted the pharmacist again before making an arrest. It was obvious that the refill designation on the prescription was different and the fact that it later proved to have been the prescribing doctor's actions 5 that created the discrepancy cannot remove the probable cause that existed at the time of the arrest. Dodds v. State, 434 So.2d 940, 942 (Fla. 4th DCA 1983). See also, Florida Game and Freshwater Fish Comm'n Dockery, 676 So.2d 471 (Fla. 1st DCA 1996) (The fact that officers later learned that the wrong test had been run on soil samples suspected of containing hazardous waste did not mean that probable cause did not exist at the time of the arrest). The dissent clearly points out the majority's error in this regard. 6 5 The prescribing doctor, per his deposition testimony, at trial stated that he wrote the prescription with one pen, put that pen down and then picked up another to write in the refill, and he intentionally made the A1" in the refill stand out. 6 The information relied by the officer was "reasonable trustworthy" and "sufficient" to warrant a 6

10 Despite the clearly defined area of law stating that subsequent events cannot negate probable cause, the majority affirmed the admission of a post-arrest internal affairs investigative report indicating that in the opinion of the internal investigating officer, this officer did not use proper investigative technique to verify an altered prescription in violation of a department rule and the officer did not have enough probable cause. Admission of this makes F.S. '901.15, which was in full force and effect at the time of Austrino's arrest, invalid along with the case law interpreting the same. 7 See, also, City of St. Petersburg v. Reed, 330 So.2d 256 (Fla. 2d DCA 1976). Clearly, admission of opinion testimony on probable cause tells the jury how to decide the case rather than assisting in determining facts. Kayfetz v. A. Best Roofing, Inc., 832 So.2d 784 (Fla. 3d DCA 2002); ("Witnesses are prevented from expressing their prudent man in believing that Austrino had committed the offense for which he was arrested. 7 Section , Florida Statutes (1998), provides, among other things, that an officer may arrest a person, without a warrant, when: "(3) He reasonably believes that a felony has been or is being committed and reasonably believes that the person to be arrested has committed or is committing it. Officer are not only authorized, but it is their duty to arrest and take into custody without a warrant any person who the officer has reasonable grounds to believe, and does believe, has committed any felony. 7

11 conclusions when the opinion only tells the jury how to decide the case...") Town of Palm Beach v. Palm Beach County, 460 So.2d 879, 882 (Fla. 1984). 8

12 CONCLUSION For the foregoing reasons, the decision of the Second District is in express and direct conflict with decisions of other District Courts and the Supreme Court on the same question of law. This Court should grant review in order to establish uniformity in this area of law. Respectfully submitted, /s/ Deborah-Glover Pearcey DEBORAH GLOVER-PEARCEY ASSISTANT CITY ATTORNEY 9

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail, to Marcus A. Castillo, Esquire, attorney for the Plaintiff/Appellee, Haas & Castillo, P.A., Arbor Shoreline Office Park, C U.S. 19 North, Suite 401, Clearwater, FL 33764, this 26 th day of May, JOHN C. WOLFE CITY ATTORNEY By: /s/ Deborah Glover-Pearcey DEBORAH GLOVER-PEARCEY Assistant City Attorney P. O. Box 2842 St. Petersburg, Florida (727) Phone (727) Fax FBN: Attorney of Record for City of St. Petersburg CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that this computer generated brief is submitted in Times New Roman 14-point font in compliance with Fla.R.App.P (a)(2) this 26th day of May, /s/deborah Glover-Pearcey DEBORAH GLOVER-PEARCEY Assistant City Attorney 10