ROSEANN MICHELLE GILL, as Parent and Next Friend of K.C.R., a minor, Plaintiff-Appellant,
GRADY JUDD, individually and in his official capacity as the Sheriff of Polk County, JONATHAN MCKINNEY, individually, Defendants-Appellees.
from the United States District Court for the Middle District
of Florida D.C. Docket No. 8:15-cv-00840-MSS-TBM
ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.
CARNES, Chief Judge
death of a child is tragic, doubly so if it is suicide. And
still more so if the child was driven to take her life by the
bullying of other children. The first two levels of tragedy
are undisputed in this case: a twelve-year-old girl,
we'll call R.S., deliberately ended her young life.
Members of the Polk County, Florida Sheriff's Department
thought that R.S. took her life because she had been harassed
and bullied by some of her sixth-grade classmates. Following
an investigation, a deputy arrested one of those classmates,
whom we will call K.C.R. She had once been R.S.'s best
friend, but she found herself charged with having committed
the crime of aggravated stalking, a felony, which includes
harassing a child under sixteen years of age. The warrantless
arrest took place inside K.C.R's home.
presumption of innocence proved apt in K.C.R's case. The
aggravated stalking charge against her was eventually
dismissed, but not before the sheriff released K.C.R.'s
name and photograph to the media and repeatedly and publicly
blamed her for the death of R.S. As one might imagine, that
had a devastating effect on K.C.R. She filed a lawsuit under
28 U.S.C. § 1983, naming as defendants the sheriff and a
deputy who had entered her home and arrested
district court dismissed most of K.C.R.'s claims,
including the claim that the deputy lacked probable cause to
arrest her. The court granted summary judgment against K.C.R.
on one of her two remaining claims. K.C.R.'s last
surviving claim, which went to the jury, was that deputies
entered her house without a warrant (undisputed) and without
consent (disputed) and thereby violated her Fourth Amendment
rights. The sole question for the jury was whether the
arresting deputy had consent to enter K.C.R.'s house. The
jury found that he did.
K.C.R.'s appeal challenging the dismissal of her claim
that there was no probable cause for the arrest and
challenging the judgment entered on the jury's verdict
that the deputy had consent to enter her home to make the
filed this lawsuit in federal district court in April 2015.
She claimed that the sheriff's deputy who arrested her,
Jonathan McKinney, violated her Fourth Amendment right to be
free from unreasonable searches and seizures both because he
did not have probable cause to arrest her and because he did
not have consent to enter her home. She also claimed that
Sheriff Grady Judd and his office had an unconstitutional
policy of encouraging the kind of warrantless home arrests
she had experienced. There were also various state-law
claims, but none of them is relevant to this appeal.
district court dismissed some of K.C.R.'s claims under
Federal Rule of Civil Procedure 12(b)(6), including her
Fourth Amendment claim that McKinney lacked probable cause to
arrest her. The court also granted summary judgment to the
sheriff on K.C.R.'s unlawful policy claim. That left for
trial only her Fourth Amendment claim that Deputy McKinney
did not have consent to enter K.C.R.'s house and arrest
her without a warrant. It was tried to a jury. Because the
district court had already determined that McKinney had
probable cause to make the arrest, the jury had only one
question to answer: "Did the Defendant Jonathan McKinney
enter Plaintiff's house without consent in violation of
Plaintiff's civil rights?" The jury answered:
contends that the district court committed three reversible
errors. First, she contends that it erred by dismissing her
claim that McKinney did not have probable cause to arrest
her. Second, she challenges the sufficiency of the evidence
for the jury to find that McKinney had consent to enter her
house and also contends that the district court erred by
denying her motions for judgment as a matter of law and for a
new trial based on insufficient evidence. And third, she
contends that the district court abused its discretion when
it denied her motions for a new trial and for a mistrial
based on the answers that the judge had given to some
questions the jury asked during deliberations. We will
address those contentions in that order.
review de novo the district court's dismissal
under Federal Rule of Civil Procedure 12(b)(6) of
K.C.R.'s claim that McKinney did not have probable cause
to arrest her. See Butler v. Sheriff of Palm Beach
Cty., 685 F.3d 1261, 1265 (11th Cir. 2012). The question
we must answer is whether K.C.R.'s operative complaint --
the amended one, which we will simply refer to as "the
complaint" - - alleged sufficient facts to state a
plausible claim that McKinney lacked probable cause for the
arrest. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). While we accept the factual allegations in
the complaint as true, construing them in the light most
favorable to the plaintiff, the allegations must state a
claim for relief that is plausible, not merely possible.
See Butler, 685 F.3d at 1265. Under this standard,
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678
considering whether the district court properly dismissed the
claim asserting a lack of probable cause, we do not look to
any of the evidence submitted in connection with the summary
judgment motion or introduced at trial. That evidence all
came later and the dismissal of a claim under Rule 12(b)(6)
is to be judged for correctness at the time the dismissal
Consideration Of The Affidavit Attached To The
deciding whether a complaint states a claim upon which relief
may be granted, we normally consider all documents that are
attached to the complaint or incorporated into it by
reference. The Civil Rules provide that an attachment to a
complaint generally becomes "part of the pleading for
all purposes," Fed.R.Civ.P. 10(c), including for ruling
on a motion to dismiss. See Hoefling v. City of
Miami, 811 F.3d 1271, 1277 (11th Cir. 2016) (stating
that a "court can generally consider exhibits attached
to a complaint in ruling on a motion to dismiss . . .
."); Saunders v. Duke, 766 F.3d 1262, 1270
(11th Cir. 2014) ("[D]ocuments attached to a complaint
or incorporated in the complaint by reference can generally
be considered by a federal court in ruling on a motion to
dismiss under Rule 12(b)(6)."); Griffin Indus., Inc.
v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007) ("We
are required to accept the facts as set forth in the
plaintiff's complaint as true, and our consideration is
limited to those facts contained in the pleadings and
rule that attached exhibits are to be considered part of the
complaint when ruling on its sufficiency usually benefits the
plaintiff, but not always. As our predecessor court warned
nearly 80 years ago, a "litigant may be defeated by his
own evidence, the pleader by his own exhibits"
when "he has pleaded too much and has refuted his own
allegations by setting forth the evidence relied on to
sustain them." Simmons v. Peavy-Welsh Lumber
Co., 113 F.2d 812, 813 (5th Cir. 1940) (emphasis
added). In the Parkerson case, for
example, the Court explained: "This complaint is
plagued not by what it lacks, but by what it contains.
All of the paths to relief which the pleading suggests are
blocked by the allegations and the attached documents
themselves, without more." Gen. Guar. Ins. Co. v.
Parkerson, 369 F.2d 821, 825 (5th Cir. 1966) (emphasis
added). That is what happened in the Parkerson case,
and it is what has happened here.
the Florida Rules of Criminal Procedure, when a warrantless
arrest is made and the defendant is held in custody, a
non-adversarial probable cause determination must be made by
a judge within 48 hours after the arrest. See Fla.
R. Crim. P. 3.133(a)(1). The rules provide that the
determination "may be based on sworn complaint,
affidavit, deposition under oath, or, if necessary, on
testimony under oath properly recorded." Fla. R. Crim.
P. 3.133(a)(3). In actual practice the 48-hour judicial
determination of probable cause is almost always made based
on an affidavit or sworn complaint, which is sometimes called
an "A-form" or "arrest form." It is
usually filled out by the arresting officer after the
warrantless arrest, which apparently is what happened in this
case. The arresting officer need not be present when the
judge decides whether the affidavit or complaint establishes
probable cause to believe that the person arrested had
committed a crime. Cf. Fla. R. Crim. P. 3.133(a)(3).
same day he arrested K.C.R., Deputy McKinney filled out a
Rule 3.133(a)(3) complaint or affidavit. The parties call it
"the arrest affidavit," and so will we. As the
rules contemplate, McKinney set out in the arrest affidavit
what he had learned and had been told that caused him to
conclude there was probable cause to arrest K.C.R. for the
crime of aggravated stalking. The affidavit included short
summaries of interviews McKinney had with four students who
had attended the same middle school as K.C.R. and R.S. Three
of them told McKinney that K.C.R. had bullied R.S., while the
fourth said that K.C.R. and R.S. had once been best friends
but that K.C.R. ended their relationship. From this and other
facts McKinney concluded that R.S. had been "repeatedly
and maliciously harassed by [K.C.R.]," and that
"the malicious harassment of [R.S.], perpetrated by
[K.C.R.], was a contributing factor in [R.S.'s] decision
to commit suicide." All of that is in the arrest
was not required to attach the arrest affidavit as an exhibit
to her complaint, but she did. She also referred to it, or
quoted from it, a dozen times in the complaint. In that
manner K.C.R. incorporated the affidavit into her complaint.
She could do so because she is the plaintiff, and "[t]he
plaintiff is the master of the complaint." See
United States v. Jones, 125 F.3d 1418, 1428 (11th Cir.
1997). But why would she do it?
obvious reason K.C.R incorporated McKinney's affidavit
into the complaint is to have a target at which to aim her
arguments that he lacked probable cause, or even arguable
probable cause, to arrest her for aggravated stalking. She
was saying in effect: "Here's his story, what he
relied on when he made the arrest, and it isn't good
enough." See, e.g., Pl.'s Mem. in Opp'n
to Defs.' Mot. to Dismiss Am. Compl. at 4 ("The
primary argument made by all Defendants is that the arrest
affidavit executed by Defendant McKinney establishes probable
cause thereby barring Plaintiff's claims. Defendants are
wrong."); id. at 5 ("At most, the facts in
the arrest affidavit allude to a common middle-school-age
rift. No facts in the affidavit give rise to probable cause,
or arguable probable cause, that Plaintiff maliciously
harassed or cyberstalked the victim."); id. at
6 ("[T]he facts in the arrest affidavit in and of
themselves are not sufficient to support a probable cause
violation of [the Florida aggravated stalking
statute]"); id. at 6 n.1 ("Notably, the
affidavit fails to describe how the Defendants made the
logical connection between any of Plaintiff's actions and
the victim's emotional state/death.").
district court accepted K.C.R.'s invitation to decide her
arrest claim based on the facts set out in McKinney's
arrest affidavit. But after considering those facts, the
court concluded that there was probable cause for the arrest.
lost with that strategy in the district court, K.C.R. is now
trying a different one in this Court. Instead of continuing
to posit that the arrest affidavit shows what McKinney knew
and didn't know when he arrested her, K.C.R. argues to us
that the affidavit does not show that the facts set out in it
were known to McKinney at the time of the arrest. She says
that "[t]he affidavit does not shed light on when the
details therein were made known to McKinney," and it
"is not enough to show arguable probable cause or
probable cause existed when McKinney effected the
arrest." Appellant's Br. 45 n.29. Instead, the facts
constituting probable cause or arguable probable cause must
have been known to McKinney when he made the arrest. Anything
he learned in the interval between the arrest and the
creation of the affidavit doesn't count, and K.C.R.
insists that there has been no showing that the facts in the
arrest affidavit were known to McKinney at the time of the
arrest instead of later.
reject K.C.R.'s new theory because it comes too late. It
was never raised in the district court, not even a little
bit. Instead, in that court K.C.R. argued that the facts set
out in the arrest affidavit, even if true, did not show
probable cause or arguable probable cause. Period. She never
argued that the facts alleged in the arrest affidavit were
not known to McKinney at the time of the arrest. Not once.
She may not switch theories and transform her position on
appeal. See United States v. Stein, 889 F.3d 1200,
1202 (11th Cir. 2018) ("If we were to regularly address
questions . . . that district court[s] never had a chance
to examine, we would not only waste our resources, but also
deviate from the essential nature, purpose, and competence of
an appellate court.") (alterations in original) (quoting
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1331 (11th Cir. 2004)); Reaves v. Sec'y, Fla.
Dep't of Corr., 872 F.3d 1137, 1149 (11th
Cir. 2017) ("To prevail on a particular theory of
liability, a party must present that argument to the district
court. Our adversarial system requires it; district courts
cannot concoct or resurrect arguments neither made nor
advanced by the parties.") (quoting Fils v. City of
Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011));
Smith v. Sec'y, Dep't of Corr., 572 F.3d
1327, 1352 (11th Cir. 2009) ("Because the issue or
argument was not properly presented to the district court, we
will not decide it."); Skinner v. City of
Miami, 62 F.3d 344, 348 (11th Cir. 1995) ("[A]s a
general rule, an appellate court will not consider a legal
issue or theory raised for the first time on appeal . . .
The Affidavit Versus The Allegations In The Complaint
also argues that we should not credit McKinney's
affidavit because she alleged in her complaint that the
affidavit contains misleading, incomplete, and inaccurate
information, and we must accept that it does because
that's what her complaint says. Not exactly.
comes to accepting as accurate an exhibit attached to a
complaint, we follow the same general pleading standards that
apply under Federal Rule of Civil Procedure 8. "[M]ere
conclusory statements do not suffice." Iqbal,
556 U.S. at 678. So when exhibits attached to a complaint
"contradict the general and conclusory allegations of
the pleading, the exhibits govern." Griffin Indus.,
Inc., 496 F.3d at 1206 (citing Associated Builders,
Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974)
("Conclusory allegations and unwarranted deductions of
fact are not admitted as true, especially when such
conclusions are contradicted by facts disclosed by a document
appended to the complaint. If the appended document . . .
reveals facts which foreclose recovery as a matter of law,
dismissal is appropriate.")). "The classic example
is when a plaintiff attaches a document to his complaint but
his allegations about what the document is or says contradict
the document itself." Hoefling, 811 F.3d at
1277 (citing Simmons, 113 F.2d at 813).
Simmons, "the classic example," the
plaintiff alleged in his complaint that he and the defendant
had entered into a contract, and he attached to the complaint
several letters that he asserted either formed the contract
or at least showed that an implied contract had been formed.
See 113 F.2d at 812-13. Because those letters did
neither of those things, we affirmed the dismissal of the
plaintiff's claims. Id. at 813. We explained
that the plaintiff could have survived a motion to dismiss if
he had simply pleaded a short and plain statement alleging
facts that a contract existed. Id. But once he
attached the letters to his complaint and alleged that they
were the contract or at least showed that an implied contract
existed, "it became the duty of the court . . . to
construe th[e] letter[s] and determine [their] legal
effect." Id. When the court did so, it
appropriately found that the "letters not only did not
show an express contract, but refuted the inference of an
implied one." Id.; cf. Crenshaw v.
Lister, 556 F.3d 1283, 1292 (11th Cir. 2009) (accepting
as true on summary judgment police officers' reports that
plaintiff had attached to his complaint because the reports
"refute[d] [the plaintiff's] conclusory and
speculative allegation [in his complaint] about what the
officers saw"). The rule is specific over speculative,
concrete over conclusory.
complaint contains specific, well-pleaded allegations that
either do not appear in the attached exhibit or that
contradict conclusory statements in the exhibit, we credit
the allegations in the complaint. For example, in
Saunders v. Duke, 766 F.3d 1262 (11th Cir. 2014), a
plaintiff sued three police officers for excessive force and
alleged that one of them had slammed the plaintiff's face
onto the pavement when he was arrested. Id. at
1265-66. The plaintiff also alleged that the officers
"failed to properly and correctly document the excessive
force inflicted on him and the injuries he suffered" in
their reports. Id. at 1270. The plaintiff went into
great detail in his complaint about the force that was used
against him and the injuries he received, while the
officers' reports did not mention any use of force at
all. See Fifth Amended Complaint at 8-14, 18-23,
Saunders v. Duke, No. 6:10-cv-120-CEM-GJK, 2012 WL
12870345 (M.D. Fla. Jan. 4, 2012), Doc. 50. As a result, we
did not credit the police reports even though the plaintiff
had attached them to his complaint. See Saunders,
766 F.3d at 1270.
the complaint contains some specific allegations about the
statements in McKinney's affidavit and some conclusory
ones. In his affidavit McKinney wrote down information that
he had "gathered during his investigation through
interviews of [R.S.'s] fellow students." The
complaint does not allege that McKinney made up the entire
investigation, or that he never interviewed the students, as
recounted in the affidavit, or that the students McKinney
interviewed didn't tell him what he reported they did.
complaint does allege that McKinney "maliciously,
deliberately, and with a reckless disregard for the truth
interviewed four minors and coerced, deliberately
misconstrued, or falsified statements and used conclusory
summaries," but that allegation in the complaint is too
general and conclusory for us to know which specific
statements in the affidavit allegedly are false or were
coerced. We cannot throw out the entire arrest affidavit
because K.C.R. made it part of her pleading. See Fed.R.Civ.P.
10(c). What we must do is compare each relevant allegation in
the complaint with its counterpart in the arrest affidavit
and decide if is specific enough to prevent that statement in
the affidavit from being considered.
the allegations in the complaint are specific enough to do
that. For example, it specifically says that K.C.R.
"never confessed to bullying the victim." That is
enough for us to disregard all of the statements about
bullying that McKinney's affidavit says came from
K.C.R.'s confession. The complaint also specifically
alleges that "McKinney maliciously, deliberately, and
with a reckless disregard for the truth, falsely swore under
oath that it was determined that malicious harassment was a
contributing factor in the victim's decision to commit
suicide." That is specific enough for us to disregard
McKinney's personal conclusion that K.C.R.'s
harassment contributed to R.S.'s death. (And, in any
event, subjective views or conclusions of a defendant officer
are irrelevant to the determination of probable cause.
See Rankin v. Evans, 133 F.3d 1425, 1433-34 (11th
allegations in the complaint refer to particular statements
in the arrest affidavit but are too general or conclusory for
us to credit. For example, in the affidavit McKinney stated
that one of the students had said that K.C.R. had started a
fight with R.S. The complaint alleges that "the
description of the fight was deliberately false and
misleading," but it does not say what part of the
description was false and misleading and in what way.
statements in the complaint that we do not credit include
K.C.R.'s assertions that "[t]he Affidavit executed
by Defendant McKinney does not establish probable cause"
and "there are material misstatements and omissions in
the Affidavit." The first statement is a legal
conclusion. See Iqbal, 556 U.S. At 678 ("[T]he
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions."). The second statement is a general one so
broad that it provides us no help in determining which
statements in the affidavit are material misstatements or
what has been omitted.
The Factual Allegations Left Standing In The Complaint
And The Arrest Affidavit
the affidavit against the complaint and the complaint against
the affidavit, here are the allegations we are left with for
purposes of the motion to dismiss. K.C.R.'s
twelve-year-old classmate, R.S., ended her young life by
jumping off a silo at an abandoned cement plant in Lakeland,
Florida on September 9, 2013. Deputy Sheriff McKinney of the
Polk County Sheriff's Office headed up the investigation
into R.S.'s death. On October 14, 2013, without a
warrant, he arrested K.C.R. for felony aggravated stalking of
a minor under 16 years of age. See Fla. Stat. §
784.048(5) ("A person who willfully, maliciously, and
repeatedly follows, harasses, or cyberstalks a child under 16
years of age commits the offense of aggravated stalking, a
felony of the third degree . . . ."); id.
§ 7804.048(6) ("A law enforcement officer may
arrest, without a warrant, any person that he or she has
probable cause to believe has violated this section.").
The minor K.C.R. was charged with stalking was R.S.
he arrested K.C.R., McKinney filled out an arrest affidavit
that laid out the facts he asserted had given him probable
cause to make the arrest. In that affidavit McKinney stated
he had interviewed four of K.C.R.'s classmates. He
learned from them that K.C.R. and R.S. had attended the same
middle school and that they had been best friends at the
beginning of the school year. According to two of the
students, another student convinced or coerced K.C.R. to end
that friendship. Three students also told McKinney that they
had seen K.C.R. bullying R.S. by calling her names and
intimidating her. One of them described that bullying as
happening "constantly" during the second part of
the school year; another said that K.C.R. had bullied R.S. on
several occasions. And one student McKinney interviewed also
stated that K.C.R. had started a fight with R.S. on February
4, 2013, and that the school had documented the fight. In her
complaint K.C.R. does not dispute that this is what the
students told McKinney, though she does allege that she
actually did not bully R.S.
stated in his affidavit that based on the interviews he
conducted he concluded that K.C.R. had "participated in
and initiated a pattern of conduct between December 2012 and
February 2013 with the purpose of maliciously harassing
[R.S.]." It is undisputed that K.C.R. did not have
contact with R.S. after February 2013 (about seven months
before R.S.'s death) and that there was no evidence of
text messages or postings on social media by K.C.R. about
The Probable Cause Analysis
contends that the allegations in her amended complaint and
the factual recitations in McKinney's affidavit, when
viewed together, fail to establish probable cause that she
violated Florida's aggravated stalking law. Probable
cause "exists where the facts and circumstances within
the officers' knowledge and of which they had reasonably
trustworthy information are sufficient in themselves to
warrant a man of reasonable caution in the belief that an
offense has been or is being committed." Marx v.
Gumbinner, 905 F.2d 1503, 1506 (11th Cir. 1990)
(quotation marks and alterations omitted). "Because
probable cause deals with probabilities and depends on the
totality of the circumstances, it is a fluid concept that is
not readily, or even usefully, reduced to a neat set of legal
rules." District of Columbia v. Wesby, 138
S.Ct. 577, 586 (2018) (quotation marks omitted). It
"requires more than mere suspicion, but does not require
convincing proof." Bailey v. Bd. of Cty.
Comm'rs, 956 F.2d 1112, 1120 (11th Cir. 1992);
see Wesby, 138 S.Ct. at 586 ("It requires only
a probability or substantial chance of criminal activity, not
an actual showing of such activity.") (quotation marks
omitted). All in all, it's "not a high bar."
Wesby, 138 S.Ct. at 586.
arrested K.C.R. for an alleged violation of Florida Statutes
§ 784.048(5). Again, that statute provides: "A
person who willfully, maliciously, and repeatedly follows,
harasses, or cyberstalks a child under 16 years of age
commits the offence of aggravated stalking, a felony of the
third degree . . . ." Fla. Stat. § 784.048(5).
"Harass" is then defined as "engag[ing] in a
course of conduct directed at a specific person which causes
substantial emotional distress to that person and serves no
legitimate purpose." Id. § 748.048(1)(a).
Given this definition, K.C.R.'s harassment of her
classmate need not have contributed to her death for K.C.R.
to have violated the law. Instead, the statute requires only
that the harassment cause "substantial emotional
on McKinney's investigation a reasonable person in his
position would have concluded that K.C.R. willfully,
maliciously, and repeatedly harassed her former friend and
classmate. Students told McKinney that after K.C.R. had ended
her friendship with R.S., she had bullied R.S. by calling her
names and intimidating her. One student mentioned having seen
K.C.R. bully R.S. on several occasions; another told him that
K.C.R. was "constantly" bullying R.S. during the
second part of the previous school year. And one of the
students told McKinney that K.C.R. had started a fight with
R.S., which the school had documented. From this, a
reasonable person would conclude that K.C.R. harassed R.S.
and caused her substantial emotional distress in violation of
the Florida statute.
does allege in her complaint that McKinney "falsely
swore under oath that it was determined that malicious
harassment was a contributing factor in the victim's
decision to commit suicide." But it matters not whether
McKinney himself (or anyone else at the Polk County
Sheriff's Office) subjectively believed that K.C.R. had
caused R.S.'s death. She was not arrested on a charge of
causing R.S.'s death.
not even matter whether McKinney personally believed that
K.C.R. had stalked R.S. Subjective beliefs "play no role
in ordinary, probable-cause Fourth Amendment analysis."
Whren v. United States, 517 U.S. 806, 813 (1996);
see Rankin, 133 F.3d at 1434 ("No subjective
belief requirement exists under either [Florida] or federal
law."). Probable cause is an objective standard. See
Rankin, 133 F.3d at 1433. The issue is not whether
McKinney's subjective belief was reasonable, but whether
"a reasonable man would have believed probable cause
existed had he known all of the facts known by the
officer." Id. (quotation marks and alterations
omitted). Reasonable officers would have believed that
probable cause existed to arrest K.C.R., even though the
charge was eventually dismissed. While causing
"substantial emotional distress" is an element of
aggravated stalking, causing or contributing to the
victim's death is not. Nor is the death of the victim.
THE TRIAL ISSUES
turn to K.C.R.'s contentions of error involving the
district court's rulings at trial. She challenges the
court's refusal to grant her a new trial or to otherwise
override the jury's verdict that McKinney had consent to
enter her house. She stresses that none of the deputies,
including McKinney, disputed that without consent they had
entered into a screened-in porch that was in front of her
house. These are trial-related issues and we draw
from the evidence presented at trial to tell this part of the
story, making all reasonable inferences in favor of McKinney
as the prevailing party. See Hubbard v. Bank Atlantic
Bancorp., Inc., 688 F.3d 713, 724 (11th Cir. 2012).
Facts Related To The Consent To Enter Issue
early afternoon of October 14, 2013, McKinney called
K.C.R.'s mother and asked her to bring her daughter down
to the sheriff's department for questioning. He did not
tell her that he planned to arrest her daughter, though that
was his plan. K.C.R.'s mother refused the request. Later
that afternoon McKinney and three other sheriff's
deputies - Sergeant Deborah Hamilton, Detective Christopher
Lynn, and Lieutenant Jamie Rudd - headed to K.C.R.'s
house to make the arrest. McKinney testified at trial that he
had time after his phone call with K.C.R.'s mother to
obtain a warrant but that he and the other members of his
team chose not to apply for one. Instead, he said their plan
was to go to the house and ask permission to enter, and if
that didn't work they would post a deputy at the front
door while they went and obtained a warrant.
deputies arrived at the house in unmarked vehicles. They wore
plain clothes, and bulletproof vests with "SHERIFF"
emblazoned across the front, and their weapons were
holstered. McKinney, followed by Lynn and Hamilton (Rudd
would join later), approached the house, opened the door to a
screened-in porch in front of the house, and walked through
that area and up the three steps to the front door. Then
McKinney knocked and announced in a loud voice: "Polk
County Sheriff's Department." K.C.R.'s father
answered the door. McKinney told him they were there to
to McKinney's and Hamilton's trial testimony,
K.C.R.'s father told the deputies that he needed to put
up his dog. He then shut the door. Rudd joined the other
deputies while they were waiting for K.C.R.'s father to
return. A few minutes later he opened the door and the
deputies entered the house.
determine whether McKinney had K.C.R.'s father's
consent to cross that threshold, the jury heard from
McKinney, Lynn, Rudd, Hamilton, and K.C.R.'s father.
Because the jury's factual determination of this issue is
the central issue on appeal, we will quote some of that
testimony at length. First, from McKinney and Hamilton:
Q. Okay. And you knocked and announced?
A. Yes, sir, that's correct.
Q. Then what happened?
A. Then [K.C.R.'s father] opened the door. I told [him] I
was there to arrest [K.C.R.]. [K.C.R.'s father] asked if
I could hang on for a minute while he put the dog up, he
closed the door, he went back into the house for a few
moments and then he came back to the door and opened the
Q. Okay. So he opened the door ...