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Gill v. Judd

United States Court of Appeals, Eleventh Circuit

October 21, 2019

ROSEANN MICHELLE GILL, as Parent and Next Friend of K.C.R., a minor, Plaintiff-Appellant,
v.
GRADY JUDD, individually and in his official capacity as the Sheriff of Polk County, JONATHAN MCKINNEY, individually, Defendants-Appellees.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:15-cv-00840-MSS-TBM

          Before ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.

          ED CARNES, Chief Judge

         The 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.

         The 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 her.[1]

         The 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.

         This is 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 arrest.

         I. PROCEDURAL HISTORY

         K.C.R. 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.

         The 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: "No."

         K.C.R. 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.

         II. THE DISMISSAL ISSUES

         We 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 (2009).

         In 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 took place.

         A. Consideration Of The Affidavit Attached To The Complaint

         In 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 attached exhibits.").

         The 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).[2] 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.

         Under 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).

         On the 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 affidavit.

         K.C.R. 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?

         The 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.").

         The 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.

         Having 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.

         We 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 . . . .").[3]

         B. The Affidavit Versus The Allegations In The Complaint Itself

         K.C.R. 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.

         When it 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).

         In 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.

         When a 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.

         Here, 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.

         The 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.

         Some of 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 Cir. 1998)).

         Other 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.

         Other 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.

         C. The Factual Allegations Left Standing In The Complaint And The Arrest Affidavit

         Reading 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.

         After 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.

         McKinney 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 R.S.

         D. The Probable Cause Analysis

         K.C.R. 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.

         McKinney 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 distress." Id.

         Based 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.

         K.C.R. 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.

         It does 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.

         III. THE TRIAL ISSUES

         We now 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.[4] 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).

         A. Facts Related To The Consent To Enter Issue

         In the 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.

         The 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 arrest K.C.R.

         According 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.

         To 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:

McKinney:
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 door.
Q. Okay. So he opened the door ...

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