Dоes the plaintiffs chosen legal remedy — the tort of false imprisonment — provide her compensation for enduring a horrible experience? On October 2, 2008, Latoya Edwards’s wallet was stolen. Early on a June morning in 2009, in front of her family, she was arrested and taken to jail on a warrant accusing her of passing a fraudulent $281 check at a T.J.
We reverse the judgment against the store and its employee because their cooperation with the detective’s investigation amounted to neither actual detention nor active instigation of the arrest. We reverse the judgment against the detective, because, even after removing all false statements from his warrant affidavit, the arrest warrant nonetheless was supported by probable cause.
The three defendants challenge the propriety of the trial court’s rulings on their motions for directed verdicts. For this reason, we state the facts in the light most favorable to Edwards, the nonmoving party. See Philip Morris USA, Inc. v. Kayton,
The Investigation
Months before Edwards’s arrest, Detective William Harder began investigating a fraudulent check ring based on information from an informant. Detective Harder placed a wire on the informant and gathered incriminating information, including evidence that the suspect had been using a computer software program — typically reserved for small businesses — to produce counterfeit checks. Over time, Detective Harder identified other “ringleaders” in the fraudulent check creation process. However, before reeling in the big fish, he wanted first to round up the minor players — those who actually cashed the checks.
To further the investigation, Detective Harder provided the account and routing number combinations extracted from the suspect’s computer to Certegy, a third-party check verification system used by many businesses, such as T.J. Maxx, to verify the validity of the account and routing number listed on a check. In requesting assistance, Detectivе Harder wanted Certegy to determine whether the account and routing numbers taken from the suspect’s computer matched those used in stores. In due time, Certegy prepared a spreadsheet containing hundreds of potential counterfeit checks fitting this description, around forty of which were cashed at T.J. Maxx stores. None of the checks involved Edwards.
At Certegy’s suggestion, in late May, 2009, Detective Harder spoke with Derek Carlson — an investigator for T.J. Maxx— and requested that Carlson pull coрies of the suspected counterfeit checks used at T.J. Maxx stores, as listed on the Certegy spreadsheet, and recover any surveillance video of the transactions if available. In the initial conversation, Detective Harder summarized his investigation for Carlson and said that it appeared many of the persons cashing the checks were “using [their] true identities.” Detective Harder also insisted that time was of the essence, since he was planning a “warrant blitz” on June 10, wherein he would arrеst each suspect involved in the check cashing scheme at the same time.
In the ensuing days, Carlson did as instructed and made copies of the suspected checks contained in the Certegy list. As encouraged by statute,
On June 2, 2009, Detective Harder emailed Carlson a draft affidavit for Carlson to sign. The next day, Detective Harder described the time pressure he was under, stating he was “running like a сhicken with [his] head cut off getting all of these arrest warrants ready for [the] big swoop.” Shortly thereafter, Carlson submitted a binder containing the copies of checks he extracted from T.J. Maxx’s records — including the additional checks beyond Detective Harder’s initial request. Carlson then executed the affidavit, which stated as follows:
Before me, the undersigned sworn law enforcement official, this date, Investigator Derek Carlson, of ... Marmaxx, Inc., parent company of T.J. Maxx, Mar-shalls, and HomeGoоds, who, being duly sworn according to law, deposes and states that he has examined the check numbers bearing the name of the listed ... companies, the drawers thereof, which checks are dated as listed in the amounts listed, made payable to the companies listed, drawn on the listed banks, bearing the drawer’s signature as shown, which are all forged or counterfeit checks. That the deponent will assist law enforcement in the full prosecution of this case.
The affidavit is made voluntarily for the рurpose of prosecuting those responsible for this act and is to establish the facts listed in the accompanying spreadsheet. As a result, Marmaxx sustained a loss of $13,165.95.
At trial, Carlson testified he never told Detective Harder that Edwards herself submitted the check.
Detective Harder applied for — and received — an arrest warrant from a circuit judge. However, his affidavit in support of the warrant contained many false facts: that “Latoya Edwards[ ] did ... utter, pass, or tender as true a counterfеit note, bank bill, or check draft, made payable to the bearer, knowing the same to be false, altered, forged, or counterfeit;” that “Latoya Edwards, did take counterfeit check #3957, in the amount of $281.38, made payable to T.J. Maxx ... and presented same for payment knowing it to be a counterfeit bank check;” that Edwards was “one of the co-defendants who was recruited” by an organized fraud ring “to cash the counterfeit checks produced illegally;” that Derek Carlson of T.J. Maxx “verified that this check was presented by [Edwards]” and that Edwards “used her Florida Driver’s License, as identification in presenting the counterfeit' check”; and
The Stolen Wallet
Edwards knew nothing of the gathering storm about to engulf her. On October 2, 2008, Edwards was working as a substitute teacher at Boyd Anderson High School when her wallet went missing after she. placed it on a bench. Edwards reported the wallet as stolen to the school’s office manager and immediately went to the Department of Motor Vehicles to get a re-, placement driver’s license. Edwards told DMV workers her license had been stolen. However, this information did not make it to the DAVID
Not long after the wallet’s disappearance, Edwards began receiving letters from businesses — including Citibank, Pub-lix, CVS, and Walmart — regarding the possibility that her identity was being used for fraudulent purposes. Edwards advised each business that she was the victim of identity fraud. As the letters kept coming, Edwards again confеrred with the school’s office manager, who directed her to make a police report with the school resource' officer, Tim Doughty. Edwards did as instructed and Doughty provided her with ■a card and a case number, though not the report itself.
The Arrest and Interrogation
With arrest warrants procured, Detective Harder assembled officer teams to make coordinated arrests around the same time. One of the first on the list was Edwards, who resided in an apartment with her mother, brother, and sister. At around 6:00 a.m., officers arrested Edwards in her bedroom, and led her out of the apartment in handcuffs, in front of her family.
At the station house, Edwards was taken to an interrogation room where the officers took off her handcuffs and chained her leg to a table. There, she met Detective Harder, who questioned her about her involvement in the fraudulent check ring., Edwards told the detective her wallet had been stolen, that she had filled out a police report, that she did not cash the check, and that the phone number and signature on the check were not hers.
Detective Harder directed that Edwards be taken downstairs to be fingerprinted, booked, and placed " in a holding cell. Eventually, Edwards was removed from the holding cell and put in a van to be taken to the Broward County jail. Prior to the transport, Edwards 'again had to complete the booking process. The next morning, at around 3:00 a.m., Edwards’s family posted bail and she was released.
Later the same day, Edwards and her family returned to the police station to present Detеctive Harder with letters from the various businesses and an affidavit statement from thé school’s office manager showing she had been the victim of identity fraud. By that time, Detective Harder had obtained' a copy of Doughty’s report,-which he gave to Edwards. Further, Detective Harder told Edwards the investigation was over and no formal charges would be filed. On cross-examination, the detective conceded that prior to her arrest, he had no fingerprint of Edwards, no video of her passing the check, and no witness who said she committed a crime. Of the first 23 arrests made during the June 10, 2009 sweep, Edwards was one of four innocent victims of identity fraud who were wrongfully arrested. Many of those arrested claimed they were the victims of identity fraud.
“False imprisonment is the unlawful restraint of a person against his will, the gist of which action is the unlawful detention of the plaintiff and deprivation of his liberty.” Johnson v. Weiner,
To state a cause of action for false imprisonment, the plaintiff must establish four elements: “1) the unlawful detention and deprivation of liberty of a person 2) against that person’s will 3) without legal authority or ‘color of authority’ and 4) which is unreasonable and unwarranted under the circumstances.” Montejo v. Martin Mem’l Med. Ctr., Inc.,
With regard to the type of conduct that will subject a defendant to liability for false imprisonment, in Johnson v. Weiner, the Supreme Court wrote that “[t]o be liable in an action for false imprisonment, one must have personally and actively participated therein, directly or by indirect procurement.”
Pokomy held that “a private citizen may not be held liable in tort where he neither actually detained another nor instigated the other’s arrest by law enforcement officers.”
If the confinement is unprivileged, the one who instigates it is subject to liability to the person confined for the false imprisonmеnt. Instigation consists of words or acts which direct, request, invite or encourage the false imprisonment itself. In the case of an arrest, it is the equivalent, in words or conduct, of “Officer, arrest that man!” It is not enough for instigation that the actor has given information to the police about the commission of a crime, or has accused the other of committing it, so long as he leaves to the police the decision as to what shall be done about any arrest, without persuading or influencing them.
The rationale underlying the holding in Pokomy is groundеd in sound policy. Confronted with a suspected criminal episode, private citizens should not be forced to weigh the interests of justice against the potential of financial loss. As the Third District recently explained, “[t]wo legitimate and competing interests are at odds [in such circumstances]. On one hand, an individual should be protected from abusive accusations. On the other hand, people must feel free, and indeed must be encouraged, to contact the police to repоrt suspected criminal activity.” Bank of Am. Corp. v. Valladares,
[pjrompt and effective law enforcement is directly dependent upon the willingness and cooperation of private persons to assist law enforcement officers in bringing those who violate our criminal laws to justice. Unfortunately, too often in the past witnesses and victims of criminal offenses have failed to report crimes to the proper law enforcement agencies. Private citizens should be encouraged to become interested and involved in bringing the perpetrators of crime to justice and not discouraged under apprehension or fear of recrimination.
Id. (quoting Pokorny,
Pokorny presents a fact situation which illustrates the principle that merely providing information tо law enforcement cannot give rise to liability for false imprisonment. See also, e.g., Smith v. Patterson,
In this case, Carlson acted reasonably in performing his investigation and merely provided Detective Harder with the binder of fraudulent checks. The inescapable truth — which no one disputes — is that a crime did occur in this case, though Edwards was not the one who committed it. Through his investigation, Carlson determined that the check bearing Edwards’s personal information and driver’s license was fraudulent — he then provided such information to Detective Harder. He did not tell Detective Harder to arrest Edwards. He did not encourage Detective Harder to arrest Edwards. He did not provide false information to Detective Harder to bring about Edwards’s arrest. He provided accurate information — that a fraudulent check bearing Edwards’s name had been cashed at a T.J. Maxx store— and allowed Detective Harder to exercise his discretion in pursuing his investigation. To hold Carlson and the store liable under such circumstances would be to punish a private citizen for reporting a crime. Directed verdicts shоuld have been granted in favor of Carlson and T. J. Maxx.
Under a Franks v. Delaware analysis, after false information is jettisoned from the wairant affidavit, the warrant in this case still was supported by probable cause, so the false imprisonment verdict against Detective Harder cannot stand
The general rule is that arrest and imprisonment, if based upon a facially valid process, cannot be false. See Jackson,
Edwаrds attacks Harder’s misrepresentations in his affidavit in support of the warrant. We do not condone the detective’s misrepresentations in securing the warrant. However, after removing the falsehoods from Harder’s affidavit and analyzing what remains under the Fourth Amendment, we hold that there was probable cause to support Edwards’s arrest. Therefore, even though Harder knowingly provided some false information, he none
Under the constitutional framework of Franks v. Delaware,
must excise the erroneous material and determine whether the remaining allegations in the affidavit support probable cause. If the remaining statements are sufficient to establish probable cause, the false statement will not invalidate the resulting search warrant. See Terry v. State,668 So.2d 954 (Fla.1996). If, however, the false statement is necessary to establish probable cause, the search warrant must be voided, and the evidence seized as a result of the search must be excluded. See id. (citing Franks,438 U.S. at 156 ,98 S.Ct. 2674 ); see also Thorp v. State,777 So.2d 385 (Fla.2000).
Murray v. State,
“As a general rule, where facts constituting probable cause are in dispute, the question is one for the jury,, but if there is no dispute as to such facts, the question is for the court.” Rothstein v. Jackson’s of Coral Gables, Inc.,
“ ‘Probable cause to arrest ... exists when ■ the totality of the facts and circumstances within an officer’s knowledge sufficiently warrant a reasonable person to believe that, more likely than not, a crime has been committed.’ ” Santiago v. State,
Under a Franks v. Delaware analysis, with all of Detective Harder’s falsehoods eliminated, a .redacted affidavit still would have alleged that (a) the check cashed at the T.J. Maxx store was counterfeit and (b) Edwards’s driver’s license was used as identification in presenting the counterfeit check. Such evidence is sufficient to establish probable cause that a- crime was committed and that Edwards was the pеrpetrator. See Abernathy v. Dover,
To combat this conclusion, Edwards argues Detective Harder’s investigation was too unreasonable to support probable cause, in that he conducted an inadequate investigation. Florida law requires an arresting officer to conduct a reasonable investigation in order to determine if probable cause exists to arrest a pеrson, “but the officer does not have to take every conceivable step to eliminate the possibility of convicting an innocent person.” City of Clearwater v. Williamson,
Given the jury’s resolution of this case, allowing Detective Harder to avoid liability for false imprisonment might seem unfair. His investigative approach did little to protect the rights of innocent victims of identity theft. In the future, the legislature may well take up the issue of what steps law enforcement must follow to avoid casting too wide a net in cases where identity theft is a realistic possibility. This case illustrates the limitations of the false imprisonment remedy, which has led one commentator to observe that “the action for false imprisonment has remained relatively ineffective as a remedy, particularly for the violation of individual rights by the police.” W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 11, at 50 (5th ed. 1984). Because other potential causes of action were not raised below, we do not consider them under the facts of this case.
We reverse the final judgments and remand to the circuit court for the entry of final judgments in favor of the defendants below.
Notes
. See § 832.07, Fla. Stat. (2009). Chapter 832, Florida Statutes covers "Violations In
. Detective Harder testified that Carlson never stated that the "human being of Latoya Edwards ... actually went in and passed th[e] check.”
. The state’s Driver and Vehicle Information Database.
. Cf. Broughton v. State,