              Case: 12-11118     Date Filed: 03/08/2013   Page: 1 of 15

                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT

                       _______________________________

                                 No. 12-11118
                        _____________________________

                        D.C. Docket No. 1:11-cv-20525-PAS

GINA PETITHOMME,

                                                     Plaintiff - Appellee,

                                           versus

COUNTY OF MIAMI-DADE, et al.,

                                                     Defendants,

OFFICER RONALD MARTIN,
in his official and individual capacity,
OFFICER JESUS GONZALEZ,
in his official and individual capacity,

                                                     Defendants B Appellants.

                        _____________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                       _____________________________

                                   (March 8, 2013)
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Before CARNES and BLACK, Circuit Judges, and RESTANI, * Judge.

PER CURIAM:

       Plaintiff-Appellee Gina Petithomme (“Plaintiff”) alleges violations of her

constitutional rights under 42 U.S.C. § 1983 and a false arrest/false imprisonment

claim under Florida law against Officers Ronald Martin and Jesus Gonzalez

(“Officers” or “Appellants”).1 For the following reasons, we affirm the district

court’s denial of Appellants’ motion to dismiss based on qualified immunity.

                                     BACKGROUND

       We summarize the allegations as contained in Plaintiff’s Third Amended

Complaint (“Complaint”). In February 2009, the Officers were dispatched to

investigate a suspicious vehicle located at the corner of 148th Street and Northwest

10th Place. The Officers were told that the suspicious vehicle was a white Dodge

with two black males inside. While driving by Plaintiff’s house, which was not

located at the corner of 148th Street and Northwest 10th Place, the Officers observed

a silver Nissan sedan with a piece of white paper obstructing the tag. The silver
       *
          Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
       1
           This action named Miami-Dade County as an additional defendant and alleged an
intentional infliction of emotional distress claim. The district court previously dismissed with
prejudice all claims asserted against Miami-Dade County and the intentional infliction of emotion
distress claim, and these claims are not before us on appeal.


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Nissan was parked within the curtilage of Plaintiff’s home on private property.

When the Officers approached the vehicle, they found the Plaintiff, a black female,

alone in the car. The Officers informed Plaintiff they were investigating a

suspicious vehicle and requested Plaintiff’s identification for her vehicle. Plaintiff

responded by asking the Officers “[w]hat was the description of the vehicle.” The

Officers ignored her question and asked a second time for identification. The

Officers asked if they could search Plaintiff’s vehicle, and Plaintiff responded in the

negative. After a third request for identification, Plaintiff asked if she could go into

her home to retrieve the identification.

      While Plaintiff was searching for the identification in her home, Officer

Martin opened the unlocked vehicle to look for proof of ownership. Plaintiff

returned outside and asked the Officers why they were searching her vehicle.

Officer Martin asked Plaintiff for the fourth time to show identification. Plaintiff

told the Officers that she had been mistaken and that the identification must be in her

vehicle. Four additional police officers arrived at the scene, and neighbors exited

their homes. Plaintiff then found her identification and produced it by placing it in

Officer Martin’s “line of vision” and said “[h]ere’s my identification.” Officer




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Martin then placed Plaintiff under arrest. 2 Plaintiff was charged with disorderly

conduct/disturbing the peace. The charge was later dismissed.

       Plaintiff then brought this action, and the Officers moved to dismiss all claims

based on federal qualified immunity and state official immunity. The district court

denied the motion to dismiss the civil rights claims and the state false arrest claim

asserted against Officer Gonzalez, except as to the search, and denied the motion as

to all civil rights claims and state false arrest claim asserted against Officer Martin. 3

The Officers now appeal.

                                STANDARD OF REVIEW

       When a defendant raises the defense of qualified immunity in a motion to

dismiss, we “review the denial of [the motion] de novo and determine whether the

complaint alleges a clearly established constitutional violation, accepting the facts

alleged in the complaint as true, drawing all reasonable inferences in the plaintiff’s

favor, and limiting our review to the four corners of the complaint.” Keating, 598

       2
           The Officers assert that Plaintiff became aggressive when producing the identification
and that she yelled at Officer Martin. We do not credit these factual allegations because they are
not alleged in the Complaint and the police report containing such statements was not attached as
an exhibit to the Third Amended Complaint. See Keating v. City of Miami, 598 F.3d 753, 762
(11th Cir. 2010) (noting appellate review of motion to dismiss based on qualified immunity is
limited to the four corners of the complaint).
       3
           The district court found that Plaintiff failed to allege any facts that Officer Gonzalez
participated in the search of Plaintiff’s vehicle and granted the motion to dismiss as to the search
for Officer Gonzalez only.


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F.3d at 762 (citation omitted).

                                    DISCUSSION

      “Once the defendants establish that they were acting within their discretionary

authority, the burden shifts to the plaintiff to demonstrate that qualified immunity is

not appropriate.” Lumley v. City of Dade City, 327 F.3d 1186, 1194 (11th Cir.

2003). To evaluate whether a government official is entitled to qualified immunity,

the court must determine “whether the plaintiff’s allegations, if true, establish a

constitutional violation” and whether the right violated was clearly established.

Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (brackets and citations

omitted).

I.    Unreasonable Seizure (Count 1)

      The Officers argue that they are entitled to qualified immunity because they

had probable cause, or at least arguable probable cause, to arrest Plaintiff for three

violations of state law: (1) having an obstructed vehicle tag under Fla. Stat.

§ 316.605; (2) resisting an officer without violence under Fla. Stat. § 843.02; and (3)

disorderly conduct under Fla. Stat. § 877.03.

      “[W]hen the claim is that a search and seizure or arrest violated the Fourth

Amendment, qualified immunity depends upon whether arguable probable cause

existed.” Cottrell v. Caldwell, 85 F.3d 1480, 1485 n.1 (11th Cir. 1996). Probable

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cause exists when “the facts and circumstances within the officer’s knowledge, of

which he or she has reasonably trustworthy information, would cause a prudent

person to believe, under the circumstances shown, that the suspect has committed, is

committing, or is about to commit an offense.” Lee v. Ferraro, 284 F.3d 1188, 1195

(11th Cir. 2002) (quotation marks and citation omitted). “Arguable probable cause

exists where reasonable officers in the same circumstances and possessing the same

knowledge as the Defendant could have believed that probable cause existed to

arrest.” Rushing v. Parker, 599 F.3d 1263, 1266 (11th Cir. 2010) (citation omitted).

      a.     The Obstructed Tag

      The Officers argue that they had at least arguable probable cause to believe

that Plaintiff had either just committed a traffic violation by having driven on a

public street with an illegally obscured tag or was about to commit a violation by

pulling out into the public street with an illegally obscured tag.

      “Whether a particular set of facts gives rise to probable cause or arguable

probable cause to justify an arrest for a particular crime depends, of course, on the

elements of the crime.” Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir.

2004). Under Florida law:

      Every vehicle, at all times while driven, stopped, or parked upon any
      highways, roads, or streets of this state, shall . . . display the license
      plate . . . and all letters, numerals, printing, writing, and other
      identification marks upon the plates regarding the word “Florida,” the
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      registration decal, and the alphanumeric designation shall be clear and
      distinct and free from defacement, mutilation, grease, and other
      obscuring matter, so that they will be plainly visible and legible at all
      times 100 feet from the rear or front . . . No vehicle license plate may be
      displayed . . . in such a manner that the letters and numbers and their
      proper sequence are not readily identifiable.

Fla. Stat. § 316.605. Here, the facts and circumstances known to the Officers at the

time of the arrest, as alleged, are that Plaintiff was sitting inside a vehicle in the

driveway of a home, the Officers observed the vehicle’s “[b]rake lights come on and

off” and there “was a white paper obstructing the tag.” The Officers argue that

because they observed the vehicle’s brake lights come on and off there was arguable

probable cause to believe Plaintiff either recently drove on a public street or was

about to drive on a public street with an obstructed tag.

      Although brake lights coming on and off indicate the vehicle had electrical

power, the use of brake lights is not “reasonably trustworthy information” indicating

where a vehicle has traveled or is about to travel. See Ferraro, 284 F.3d at 1195

(noting probable cause is based on facts and circumstances of which an officer has

“reasonably trustworthy information”). Brake lights coming on and off may give

rise to a suspicion that the vehicle may soon travel on a public street, but probable

cause and arguable probable cause for an arrest require “more than mere suspicion.”

Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998).


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      b.     Resisting an Officer without Violence

      The Officers also maintain that there was at least arguable probable cause to

arrest Plaintiff pursuant to Fla. Stat. § 843.02 for resisting an officer without

violence. The Officers argue that Plaintiff’s failure to comply with their repeated

requests for identification over a period of time either obstructed or was an attempt

to obstruct the Officers from conducting a lawful investigation.

      Under Florida law, “Whoever shall resist, obstruct, or oppose any officer . . .

in the lawful execution of any legal duty, without offering or doing violence to the

person of the officer, shall be guilty of a misdemeanor of the first degree . . . .” Fla.

Stat. § 843.02; see Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993)

(noting an attempt to oppose or obstruct an officer will also violate the statute).

The statute requires that: “(1) the officer was engaged in the lawful execution of a

legal duty; and (2) the defendant’s action, by his words, conduct, or a combination

thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State,

24 So. 3d 1181, 1185B86 (Fla. 2009).

      Plaintiff makes a belated attempt before us to claim that the vehicle did not

have an obstructed tag, but we assume, for purposes of this appeal, that the tag was

obstructed, the Officers had reasonable suspicion to investigate this circumstance on




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Plaintiff’s property, and the initial Terry4 stop of Plaintiff was valid. Thus, we

assume that the Officers were engaged in the lawful execution of a legal duty when

they began their interaction with Plaintiff, and we address only whether a reasonable

officer could have believed Plaintiff’s actions during the encounter amounted to

obstruction or an attempt to obstruct that lawful investigation.

      Here, the Complaint indicates that Plaintiff “asked if she could go into her

home to retrieve her identification.” This allegation, taken as true, indicates that

Plaintiff did not refuse to provide the identification but instead was attempting to

comply with the Officers’ request. The Complaint does not contain factual support

for the Officers’ position that Plaintiff was using “delay tactics” or that Plaintiff

“refused” to provide identification. Cf. Storck v. City of Coral Springs, 354 F.3d

1307, 1316 (11th Cir. 2003) (finding probable cause to arrest when arrestee caused

two hour “stand-off” by rushing back into her house after seeing officers, refusing to

come to the door, ignoring the police’s requests from a bullhorn, refusing to answer

the phone for over a half hour, and repeatedly placing the police on hold for an

additional half hour); J.M. v. State, 960 So. 2d 813, 815 (Fla. Dist. Ct. App. 2007)

(finding violation of statute because juvenile refused to leave park after being

ordered to leave for public safety reasons). For example, the Complaint does not

      4
          Terry v. Ohio, 392 U.S. 1 (1968).

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indicate that Plaintiff blocked the police from communicating with her, verbally

refused to provide identification, avoided searching, feinted a search, or challenged

the Officers’ ability to request her identification.

      Given the facts of the Complaint, a reasonable officer could not have

concluded that Plaintiff was acting to or was attempting to “resist, obstruct or

oppose” the Officers from viewing her identification merely because, while in the

process of searching, she could not locate the identification for the vehicle as quickly

as the Officers would have liked. See J.M. v. State, 960 So. 2d at 815 (noting

obstruction statute is generally “intended to apply when a person willfully interferes

with an officer’s lawful activities”). This is especially so when the Officers

contributed to the delay by conducting an unauthorized and warrantless search of her

vehicle, which, not surprisingly, provoked a response from Plaintiff and interrupted

her search.

      Plaintiff’s questions directed towards the Officers as to what type of vehicle

they were investigating and why they were searching her vehicle cannot give rise to

arguable probable cause because verbal interruptions and simple inquiries as to an

officer’s purpose cannot be construed as obstruction under Florida law. See Davis

v. Williams, 451 F.3d 759, 767 (11th Cir. 2006) (interpreting Florida obstruction

and disorderly conduct statutes) (finding “an owner’s simple inquiry as to why

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officers are present on his property” cannot give rise to arguable probable cause for

obstruction). Thus, Plaintiff’s questions and failure to produce identification as

quickly as the Officers would have wished did not give rise to arguable probable

cause for the arrest.

        c.    Disorderly Conduct

        The Officers also argue that they had arguable probable cause to arrest

Plaintiff for disorderly conduct pursuant to Fla. Stat. § 877.03. The statute provides

that:

        Whoever commits such acts as are of a nature to corrupt the public
        morals, or outrage the sense of public decency, or affect the peace and
        quiet of persons who may witness them, or engages in brawling or
        fighting, or engages in such conduct as to constitute a breach of the
        peace or disorderly conduct, shall be guilty of a misdemeanor of the
        second degree.

Fla. Stat. § 877.03. The Officers assert arguable probable cause based on the fact

that Plaintiff asked several questions, she was upset, she placed the identification in

Officer Martin’s line of sight, and neighbors exited their homes.

        Plaintiff’s questions directed towards the Officers cannot demonstrate

arguable probable cause for disorderly conduct. Under Florida law, screaming

obscenities at an officer is not sufficient to violate the statute, and thus, no

reasonable officer could have concluded that asking an officer a benign question

could constitute a violation of the statute. See Davis v. Williams, 451 F.3d at 766
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(finding arrestee’s questions could not give rise to probable cause for disorderly

conduct even though defendant continued to ask questions after officer instructed

him to leave the scene four times); Barry v. State, 934 So. 2d 656, 658 (Fla. Dist. Ct.

App. 2006) (reversing conviction for disorderly conduct when defendant cursed and

screamed obscenities at officer).

      Moreover, it is clear from Florida law that merely being upset is insufficient to

establish arguable probable cause for disorderly conduct because far more egregious

conduct is insufficient to violate the statute. See Miller v. State, 780 So. 2d 197,

197B98 (Fla. Dist. Ct. App. 2001) (reversing conviction for disorderly conduct when

defendant directed loud and aggressive speech towards officers who were

conducting investigation in her house); Miller v. State, 667 So. 2d 325, 328 (Fla.

Dist. Ct. App. 1995) (noting “there must be evidence of something more than loud or

profane language or a belligerent attitude” to support a disorderly conduct charge).

      Furthermore, the mere fact that neighbors exited their home and observed the

scene is not, of itself, sufficient to give rise to arguable probable cause for disorderly

conduct unless there is “some evidence that the crowd is actually responding to the

defendant’s words in some way that threatens to breach the peace.” See Barry, 934

So. 2d at 659 (noting gathering crowds and people stopping to watch are not

sufficient to establish a disorderly conduct charge). Here, there are no allegations

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in the Complaint to support a finding that the Officers could have believed the

neighbors were responding to Plaintiff’s words in a way that threatened to breach the

peace.

         Finally, we find that no reasonable officer could have found that complying

with the Officers’ request by placing the identification in Officer Martin’s line of

vision could give rise to arguable probable cause for disorderly conduct, even if

Plaintiff was upset at the time. See Barry, 934 So. 2d at 657B58 (noting that

violation of the statute requires some physical conduct toward the officers that

affects the officers’ ability to do their job, breaches the peace, or otherwise incites

others to act, and reversing conviction of defendant who yelled obscenities while

pointing finger in officer’s face). Given the totality of the above circumstances, the

Officers lacked arguable probable cause to arrest Plaintiff for disorderly conduct.

         Thus, Plaintiff’s Complaint alleges a violation of the clearly established

constitutional right to not be arrested absent probable cause, and the district court

properly denied the Officers’ motion to dismiss based on qualified immunity as to

the seizure.

II.      Unreasonable Search (Count 2)

         Appellants argue that Officer Martin had probable cause to search the vehicle

given the totality of the circumstances.

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      The law is clear that under the automobile exception to the warrant

requirement, which is the only one at issue here, an officer may search a vehicle

without a warrant only where there is probable cause to believe the vehicle contains

contraband or other evidence which is subject to seizure. United States v. Talley,

108 F.3d 277, 281 (11th Cir. 1997). Probable cause exists when the totality of the

circumstances leads a reasonable person to believe that the vehicle contains

contraband or evidence of a crime. Illinois v. Gates, 462 U.S. 213, 230 (1983).

      Here, Plaintiff and her vehicle did not match the descriptions or the location

given by dispatch. Thus, the only circumstances suggesting illegal activity was the

white paper obstructing Plaintiff’s tag. The obstructed tag, however, is insufficient

to lead a reasonable person to believe that evidence relating to this infraction would

be found inside the vehicle. Although Defendants contend that Plaintiff’s

numerous failures to produce identification create a “fair probability” that Plaintiff

was not the true owner of the vehicle or that she could have been “up to no good,”

these suspicions do not suffice to establish arguable probable cause, especially

considering that Plaintiff was in the process of attempting to retrieve the

identification when the illegal search took place. Thus, the district court properly

denied Officer Martin qualified immunity as to the search because Plaintiff’s

Complaint alleges the violation of a clearly established constitutional right.

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III.   First Amendment and False Arrest/False Imprisonment Claims (Count 3
       & 4)

       The Officers’ argument that they are entitled to qualified immunity as to

Plaintiff’s First Amendment claim and false arrest/false imprisonment state law

claim hinges on the court’s concluding that the Officers had probable cause to arrest

for the three state law offenses. As discussed above, however, the Officers lacked

probable cause to arrest for those offenses, and thus, the Officers are not entitled to

qualified or official immunity for the First Amendment and state law claims. See

Rankin, 133 F.3d at 1433 (noting standards for probable cause are the same under

Florida and federal law).

       On appeal, Appellants do not dispute the district court’s conclusions that the

law concerning the unlawfulness of arresting a person solely for speech is clearly

established or that the Complaint sufficiently alleged bad faith on behalf of the

Officers. Thus, we need not address these issues, and we affirm the district court’s

denial of qualified immunity for the First Amendment claim and the denial of

official immunity for the state law claims.

                                  CONCLUSION

       Based on the aforementioned reasons, the district court’s denial of

Appellants’ motion to dismiss based on qualified immunity is AFFIRMED.


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