                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1698
                            Filed September 17, 2014

KELLI JO SCHROEDER,
     Plaintiff-Appellant,

vs.

CITY OF CEDAR FALLS, CEDAR
FALLS POLICE DEPARTMENT and
JEFFREY SITZMANN, in his Individual
and Official Capacities,
      Defendants-Appellees.
________________________________________________________________

       Appeal from the Iowa District Court for Black Hawk County, Thomas N.

Bower (first summary judgment ruling), David F. Staudt (second summary

judgment ruling), and Bradley J. Harris (motion in limine ruling, third summary

judgment ruling, and trial), Judges.



       The plaintiff appeals the evidentiary ruling of the district court precluding

the introduction of certain evidence at trial on her petition for the false arrest.

AFFIRMED.

       Edward M. Blando and Desiree A. Kilberg of Elderkin & Pirnie, P.L.C.,

Cedar Rapids, for appellant.

       Bruce L. Gettman Jr. and Brandon J. Gray of Redfern, Mason, Larsen &

Moore, P.L.C., Cedar Falls, for appellees.

       Considered by Potterfield, P.J., and Tabor and Mullins, JJ. Bower, J.,

takes no part.
                                          2



MULLINS, J.

       Kelli Jo Schroeder appeals the district court’s rulings regarding the

admissibility of certain evidence she sought to introduce in her false arrest action

against the City of Cedar Falls, the Cedar Falls Police Department, and Officer

Jeffrey Sitzmann (the defendants). She claims the court erred in refusing to

allow her to offer evidence that an eye witness’s identification of her was not

reliable. She also claims the court erred in permitting the prosecuting attorney to

testify as an expert witness to matters that occurred after the arrest. Because we

find no abuse of discretion in the district court’s evidentiary rulings, we affirm the

jury’s verdict.

I. Background Facts and Proceedings.

       Schroeder’s claim of false arrest stems from her arrest in August of 2007

for criminal mischief in the second degree for damage inflicted on the vehicle of

Nathan Curran. Curran discovered the scratches on his vehicle on the morning

of July 24, 2007, while his vehicle was parked outside his apartment in Cedar

Falls. Curran was approached by a neighbor, Maurice Allen, who told Curran he

had witnessed a white female with shorter blonde hair walk around his car with

her arm extended, “keying” the car. The woman was also accompanied by a

white male, and it appeared to Allen the two were dating. Curran and Allen were

not previously acquainted, and Allen did not know the female that had done the

damage. However, he had watched her do it and had spoken with her, coming

within an arm’s reach of her.
                                         3



       Curran showed Allen photographs from Facebook of women he knew that

matched Allen’s description.    Allen identified the picture of Schroeder as the

female he saw and identified Schroeder’s then boyfriend as the male he saw with

her that night. Curran provided this information to Officer Sitzmann of the Cedar

Falls Police Department.

       Sitzmann contacted Allen, who later provided Sitzmann with a written

statement of what he saw that night and indicated Curran had shown him a

picture of the female who did the damage. Sitzmann followed up with Allen again

showing him a photo lineup of six women. Allen identified a picture of Schroeder

from this lineup.

       Sitzmann interviewed Schroeder at the police station. She denied being

involved in damaging Curran’s vehicle and stated she did not even know what

Curran’s vehicle looked like. Sitzmann informed Schroeder he would be filing

charges against her, and they arranged for Schroeder to turn herself in at a later

date. Schroeder’s case proceeded to trial where she was found not guilty.

       She then filed this lawsuit against the defendants for false arrest, asserting

Sitzmann’s warrantless arrest lacked probable cause and caused her damages.

The defendants filed a series of summary judgment motions, all of which were

denied by the district court as the court concluded factual issues prevented a

finding for the defendants as a matter of law.

       The defendants filed motions in limine where they sought to exclude,

among other pieces of evidence, “evidence acquired after [Schroeder’s] arrest on

August 24, 2007” because such evidence was “immaterial and inadmissible to
                                          4



any issue involved in the suit and irrelevant to any issue raised by the Plaintiff’s

Petition or the Answer of Defendants as the only liability issue for the jury to

decide is whether Defendant Sitzmann had probable cause at the time of the

Plaintiff’s arrest.”   The defendants asked that Schroeder be prevented from

introducing into evidence “any criticism of the investigation of Lt. Sitzmann

including any evidence or testimony as to what Lt. Sitzmann should or should not

have done during the course of his investigation.” In addition, the defendants

asked that Schroeder be prevented from introducing any of Allen’s deposition or

trial testimony from the criminal trial. Schroeder resisted these requests claiming

evidence acquired after Schroeder’s arrest “demonstrates Officer Sitzmann’s

total lack of any investigation into whether he had probable cause to believe Ms.

Schroeder committed a crime.”          In order to prove her false arrest claim,

Schroeder asserted she must be able to “identify the inadequacies and criticisms

of the officer’s so-called investigation.”      Finally, she claimed that Allen’s

testimony “is directly relevant to the issue of probable cause because it

demonstrates the inherent unreliability of his identification.”

       After an unreported hearing, the court issued a ruling on the various

motions, concluding, “Evidence obtained following the arrest of the plaintiff by

defendant is not relevant to any issue herein.” Thus, court granted the motion

regarding evidence acquired after Schroeder’s arrest. But evidence regarding

criticism of the investigation Sitzmann conducted was “relevant insofar as it tends

to establish the reasonableness of defendant’s belief that plaintiff had committed

the crime in question.” The court denied the motion related to criticism of the
                                            5



investigation “to allow plaintiffs to present evidence which would tend to show

that defendant’s belief that plaintiff had committed the crime was unreasonable.”

The court also ruled Schroeder would be permitted to present “evidence that

plaintiff was found not guilty in a criminal trial.” Finally, the court granted the

motion to exclude the prior testimony of Allen, who was stipulated to be

unavailable for the trial, finding the hearsay exception in Iowa Rule of Evidence

5.804(b)(1) did not apply. The court concluded the State did not have a similar

motive and interest at the prior deposition and trial to develop Allen’s testimony in

the same way it would seek to develop his testimony for this trial. In ruling on

this particular motion in limine, the court noted Allen’s testimony at the criminal

trial and in his prior deposition established he consumed two large alcoholic

drinks prior to witnessing the damage done to Curran’s vehicle and had smoked

marijuana prior to making his first identification of Schroeder. In addition, Allen

testified that the photo lineup admitted at the criminal trial was different than the

lineup he was shown by Officer Sitzmann.1

       The case proceeded to a jury trial on July 30, 2013. During the plaintiff’s

opening statement,2 the attorney for the defendants objected to the plaintiff’s

attorney’s reference to Allen drinking on the night of the offense, and the

defendants asked for a mistrial. The court held a hearing on the record, outside

the presence of the jury, on the objection and motion.                Defense counsel


1
   Allen did end up testifying at the trial in the plaintiff’s rebuttal. The only issue he
testified to was whether or not the lineup admitted at the criminal trial was the same
lineup he was shown by Officer Sitzmann. Allen testified four of the six photos in the
lineup admitted at the criminal trial were not in the lineup he was originally shown by
Officer Sitzmann.
2
  The opening statements were not reported.
                                         6



explained he objected because the fact Allen was drinking before he witnessed

the crime was unknown to Officer Sitzmann at the time of Schroeder’s arrest and

was thus precluded by the motion in limine. Plaintiff’s counsel responded that

the evidence at issue supported their criticism of Officer Sitzmann’s investigation

to show that Sitzmann’s reliance on Allen’s eyewitness identification was not

reasonable. The court ruled Schroeder could ask

       why the defendant did not ask further of Maurice Allen where he
       was, what he was doing, but where he actually was and what he
       was doing is not relevant to this case. That was something that
       was found out after, and those items are—are irrelevant for the
       determination as to the probable cause at the time of the arrest.

Plaintiff’s counsel was told to move on to other items in his opening statement,

and the court denied the mistrial motion stating it would give the jury “an

admonishment that is what is said by counsel is not evidence and should not be

consider by them as evidence.” When the jury returned, the court provided the

jury the verbal admonition and also provided them a jury instruction at the end of

the case to the same effect.

       After hearing the evidence presented over several days, the jury returned

a verdict in favor of the defendants finding Officer Sitzmann did not falsely arrest

Schroeder. Schroeder filed a motion for a new trial challenging again the court’s

ruling preventing her from introducing evidence discovered after her arrest that

she contends supports her position the investigation done by Sitzmann prior to

her arrest was not reasonable.     She asserted the ruling prejudiced her case

because it made her burden impossible to prove and left the arresting officer in

complete control of the evidence.      She contended she was prevented from
                                        7



showing the arrest was made on evidence that was not trustworthy. She also

claimed she was prejudiced by the court permitting testimony from the

prosecuting attorney regarding things that occurred after the arrest.          The

defendants resisted, and the court denied the motion for the reasons stated in its

previous rulings.

       Schroeder now appeals.

II. Error Preservation.

       As a preliminary matter, the defendants allege Schroeder did not preserve

error on the claims she makes on appeal. First they contend because Schroeder

failed to make an offer of proof at trial of the evidence she claims should have

been admitted by the court, she waived her claim. Second, the defendants claim

Schroeder did not preserve error on her claim the court erred in admitting the

testimony of James Katcher, the prosecutor involved in her criminal trial, because

she did not object at the time the testimony was offered.

       With respect to the first error preservation challenge, the defendants claim

without an offer of proof, it is impossible to know what evidence Schroeder

contends should have been admitted and this court would be forced to speculate

what the evidence would show. The defendants note that it was possible the

testimony Allen would give at the civil trial may not have been identical to the

testimony he offered in his deposition and at the criminal trial. In addition, the

defendants claim there is no information at all in the record of the evidence of

Schroeder’s alleged “alibi” or of a witness’s statement provided to her private

investigator months after her arrest.    Schroeder claims error was preserved
                                          8



because while no formal offer of proof was made, the evidence she sought to

introduce was readily apparent to the court and the issue had been raised and

rejected by the court.

       The general rule is that a ruling on a motion in limine will not preserve

error for appeal on a claim regarding the admissibility of evidence unless a timely

offer of proof or objection is made at trial. Quad City Bank & Trust v. Jim Kircher

& Assocs., P.C., 804 N.W.2d 83, 89 (Iowa 2011). “This is because the error only

occurs, if at all, when the evidence is offered at trial and is either admitted or

refused.” Id. at 90. However, an exception to the rule exists “[w]hen the court’s

ruling on a motion in limine leaves no question that the challenged evidence will

or will not be admitted at trial.” Id. In such a case, “counsel need not renew its

objection to the evidence at trial to preserve error” because “the decision on the

motion has the effect of [an evidentiary] ruling.” Id.

       In granting part of the defendants’ motions in limine in this case, the court

ruled any evidence obtained following the arrest of Schroeder was not relevant to

any issue, precluding Schroeder from admitting such evidence.          Schroeder’s

attorney was admonished during his opening statement for referencing evidence

that was discovered after Schroeder was arrested—Allen’s intoxication and

consumption of marijuana at critical times of identification. We conclude the

court’s ruling left no question that the challenged evidence would not be admitted

at trial, and the court’s rulings on objections made during trial bear this out. We

conclude no offer of proof was necessary in this case to preserve error on
                                        9



Schroeder’s claim on appeal that the court erred in preventing her introducing

this evidence into the trial.

       With respect to the second error preservation challenge, the defendants

offered James Katcher as an expert witness to provide evidence as to whether

Officer Sitzmann had probable cause to arrest Schroeder based on the

information he had at the time.       At the beginning of Katcher’s testimony,

Schroeder’s attorney lodged a general objection that the information Katcher

acquired about the case was only learned after Schroeder was arrested. Based

on this fact, counsel stated Katcher would not be able to offer any credible

evidence “since we are limited to information that is known only to the time of the

arrest.” The court did not specifically rule on this objection noting it would take

up Schroeder’s objections as they went along.

       During his testimony, Katcher was asked generally how a case proceeds

from an arresting officer to the prosecuting attorney and ultimately to trial.

Schroeder’s attorney objected again stating the testimony was irrelevant and

immaterial and goes to no question before the court. The court overruled the

objection stating the testimony went to the process by which paperwork goes

through the system and was therefore relevant. The next objection lodged was

to a question about what standard a judge uses to determine whether to approve

a trial information.    Schroeder’s attorney claimed the question went to the

ultimate question in the case and accused the defendants of trying to back into

an opinion of what the judge did or did not do in this case. The court again

denied the objection finding the testimony “relevant.” No further objections were
                                        10



lodged against the admission of Katcher’s testimony—specifically his testimony

that dealt directly with Katcher’s preparation and the court’s approval of the trial

information in Schroeder’s case.

      “Generally, failure to make timely objection or motion to strike showing

reason for delayed objection will preclude a party from later claiming error in

admission of testimony.” State v. Binkley, 201 N.W.2d 917, 919 (Iowa 1972). An

objection, to be timely, must ordinarily be made at the earliest opportunity after

the grounds for the objection become apparent. Id. However, “when a timely

and proper objection has been distinctly made and overruled[,] it need not be

thereafter repeated as to the same class of evidence offered. State v. Miller, 229

N.W.2d 762, 768 (Iowa 1975).

      Here, Schroeder’s attorney objected to Katcher’s testimony in its entirety

because it dealt with information obtained by Katcher after Schroeder’s arrest.

The court did not rule on this objection, instead stating it would take up the

objections as the evidence progressed. Because there was no affirmative ruling,

this objection did not preserve error for this appeal.      However, Schroeder’s

attorney again objected to the relevance of Katcher’s testimony as he addressed

the general processes by which a criminal case progresses through the system

and the various standards of review that are applied by the various actors

involved. The court overruled this objection finding the information “relevant.”

The broad relevancy objection implicitly included a reference to the ruling on the

motion in limine which had found that evidence obtained following the arrest of

plaintiff was not relevant.   We conclude this did preserve error on the claim
                                        11



Schroeder makes on appeal. Any further objection Schroeder could have lodged

when the testimony turned to the specific process by which Schroeder’s criminal

case proceeded through the system would have been useless as the court had

already ruled the evidence in the “same class of [as the] evidence offered” was

relevant and admissible.      See id.    We thus reject the defendants’ error

preservation challenges and proceed to address the merits of the case.

III. Scope and Standard of Review.

      We review the district court’s determination regarding the relevancy of

evidence and its admissibility for abuse of discretion. Mohammed v. Otoadese,

738 N.W.2d 628, 631 (Iowa 2007). “An abuse of discretion exists when ‘the court

exercised [its] discretion on grounds or for reasons clearly untenable or to an

extent clearly unreasonable.’”   Id. at 631–32 (alteration in original) (citations

omitted). Evidence is relevant if it has “any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” Iowa R. Evid. 5.401.

Generally, relevant evidence is admissible, and evidence that is not relevant is

inadmissible. Iowa R. Evid. 5.402. However, even relevant evidence “may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.”

Iowa R. Evid. 5.403.
                                           12



IV. Admissibility of Evidence—False Arrest.

       In order to determine whether the evidence Schroeder sought to introduce

at trial was relevant, we must first analyze what Schroeder had to prove in order

to sustain her claim against the defendants for false arrest.         “The essential

elements of the tort of false arrest are (1) detention or restraint against one’s will

and (2) unlawfulness of the detention or restraint.”       Children v. Burton, 331

N.W.2d 673, 678–79 (Iowa 1983). If the arrest was without a warrant, as in this

case, the burden of proof shifts to the defendant to show justification for the

arrest. Id. at 679. “A peace officer in Iowa may make a warrantless arrest when

he has reasonable ground for believing that an indictable public offense has been

committed and has reasonable ground for believing that the person arrested has

committed it.” Id. (internal quotation marks and citation omitted). We equate

“reasonable ground” with the traditional “probable cause” standard.                Id.

“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 to the belief that’

an offense has been or is being committed.” Brinegar v. United States, 338 U.S.

160, 175–76 (1948) (alterations in original) (citation omitted).       The probable

cause standard in civil actions for false arrest is “less demanding than the

constitutional probable cause standard in criminal cases.” Children, 331 N.W.2d

at 680. “If the officer acts in good faith and with reasonable belief that a crime

has been committed and the person arrested committed it, his actions are

justified and liability does not attach.” Id.
                                        13



       “‘In determining probable cause, all the information in the officer’s

possession, fair inferences therefrom, and observations made by him, are

generally pertinent; and facts may be taken into consideration that would not be

admissible on the issue of guilt.’” Children, 331 N.W.2d at 680 (quoting 5 Am.

Jur. 2d Arrest § 48, at 740-41 (1962)). “A false arrest case involving the issue of

probable cause turns on what the officer knew at the time of arrest, not what he

learned later.” Id. at 678. “Facts that occur or come to light subsequent to the

arrest are irrelevant to a determination of whether probable cause existed at the

time of arrest.” Id. at 680.

       Here, Schroeder sought to introduce evidence regarding facts and

circumstances that Officer Sitzmann should have investigated prior to arresting

her. Specifically, she wanted to provide to the jury evidence which called into

question the accuracy of Allen’s identification of her—his consumption of alcohol

the night of the incident and his consumption of marijuana before identifying her

picture. She also wanted to introduce evidence of her alibi. She essentially

wanted to introduce evidence that tended to show Officer Sitzmann should have

conducted a more thorough investigation prior to deciding to arrest her.

However, that is not that standard by which her claim for false arrest is judged.

       Probable cause is determined by looking at what the officer knew at the

time he effectuated the arrest. See id. at 678. What he learned later, or what he

could have learned had he continued to investigate the crime, are not relevant to

the inquiry. See id. at 680. The case did evolve around the reliability of Allen’s

identification of Schroeder as the woman he saw damage Curran’s vehicle that
                                          14



night.    “[W]hen a police officer makes a warrantless arrest, for a crime not

committed in his presence, on the strength of a single witness’[s] uncorroborated

statements” we look to see if there were “circumstances known to the officer

which could cause a reasonable person to doubt the veracity or reliability of the

statements.”     Kraft v. City of Bettendorf, 359 N.W.2d 466, 470 (Iowa 1984)

(emphasis added). Despite the information that came to light later regarding the

reliability of Allen’s statement, our focus still remains on the circumstances

known to Officer Sitzmann at the time the arrest occurred. The court permitted

Schroeder to ask Sitzmann why he did not ask further questions of Allen such as

where Allen was earlier in the night and what Allen was doing, but the court

concluded the facts of where Allen actually was and what Allen was actually

doing were not relevant because Officer Sitzmann did not know of those facts at

the time the arrest was made. We believe this evidentiary ruling strikes the

correct balance in permitting Schroeder to present her claim that Officer

Sitzmann did not have enough knowledge of the facts and circumstances to

justify a finding of probable cause for arrest while at the same time keeping the

irrelevant, after-acquired information out of the case. See Children, 331 N.W.2d

at 683 (Harris, J., dissenting) (noting the arresting officer was questioned about

what the eye witness told him and what questions he failed to ask of the witness).

We find no abuse of discretion in the court’s ruling regarding the admissibility of

the information acquired after Schroeder’s arrest.

         In addition to challenging the court’s failure to admit the evidence of what

Officer Sitzmann did not know when the arrest was effectuated, Schroeder also
                                        15



claims on appeal the court should not have admitted testimony from the

prosecutor, James Katcher, regarding the procedure and process Schroeder’s

case followed in his office after the arrest was made. Specifically, she claims the

court should not have admitted Katcher’s testimony that he applies a heightened

standard—proof beyond a reasonable doubt—when he decides whether or not to

pursue the prosecution.       Schroeder also challenges Katcher’s testimony

regarding the standard applied by the district court judge who approves the trial

information filed. Schroeder claims this evidence should have been precluded by

the court’s ruling regarding after-arrest acquired information and also should

have been excluded as highly prejudicial. She claims Katcher’s testimony placed

a prosecutor’s and judge’s stamp of approval on Sitzmann’s conduct in arresting

Schroeder without allowing her to show the facts as to why the arrest was

unreasonable.

      We note the defendants offered Katcher as an expert witness in this case.

He testified to his general knowledge of how a criminal case proceeds through

the system and also specifically how Schroeder’s case proceeded.           Katcher

described his personal actions in Schroeder's case and his application of a

burden of proof beyond a reasonable doubt when he evalutates whether to

prosecute a case. He testified that before he filed charges he reviewed the file

from Officer Sitzmann, which included only information obtained by Officer

Sitzmann prior to the arrest. Based on the information contained in the file,

Katcher testified he determined charges should be prepared and presented to

the judge for approval. His ultimate opinion was that the information in the file,
                                        16



which was obtained by Officer Sitzmann prior to Schroeder’s arrest, was

sufficient to constitute probable cause. In reaching his opinion, Katcher did not

consider facts acquired after Schroeder was arrested but considered only the

facts in the file that were acquired by Officer Sitzmann before Schroeder was

arrested.   This includes the photo lineup shown to the eyewitness before

Schroeder's arrest.

       Schroeder characterizes Katcher’s testimony as after-acquired information

and claims that such information was irrelevant and inadmissible per the ruling

on the motion in limine. That characterization is too broad, and goes beyond the

scope of the ruling. The district court’s ruling does not prohibit “information;” it

says, “evidence obtained following the arrest of the plaintiff by the defendant is

not relevant to any issue herein.” (Emphasis added.) The “evidence” referenced

by the court was evidence tending to support or detract from the decision to

arrest in the criminal case.

       In the case before us, Schroeder obtained express rulings from the court

permitting her to introduce evidence “to show that defendants’ belief that plaintiff

had committed the crime was unreasonable.” It follows then that defendants

were permitted to present evidence at this civil trial to attempt to show that

defendants’ belief was reasonable. One of the ways defendants did that was by

Katcher’s testimony.      Further, the district court’s motion in limine ruling

specifically allowed Schroeder to present evidence that a jury found her not guilty

of the criminal offense. She apparently does not consider the ultimate conclusion

of the criminal case—not guilty—to be after-acquired information, precluded by
                                           17



the motion in limine ruling, even though the evidence of the verdict was clearly

intended to show that the jury’s evaluation of the evidence did not support a

conviction. In fact, Schroeder was even allowed to testify that the jury returned

the not-guilty verdict in less than fifteen minutes, which would tend to support her

claim the officer’s investigation prior to her arrest was not reasonable.            We

cannot see how allowing evidence of the prosecutor’s evaluation of the case and

the initiation of the case in the courts is any less admissible than the jury’s

ultimate not-guilty verdict.3 Further, there is nothing before us which shows that

Schroeder was denied the opportunity to present evidence to rebut Katcher’s

opinion or fact testimony.

       The fact that Katcher first learned of the facts of the case after Schroeder

was arrested does not make his opinion on whether there was probable cause to

arrest Schroeder inadmissible based on the court’s motion in limine ruling. In

reaching his opinion, Katcher did not consider facts acquired after Schroeder was

arrested but considered only the facts in the file that were acquired by Officer

Sitzmann before Schroeder was arrested.             Likewise, he prepared the trial

information and minutes of testimony for the judge’s approval based only on the

information contained in the file—pre-arrest facts.           The fact that Katcher

performed those functions after the arrest and testified to them does not make

those facts evidence that should have been excluded by the court’s ruling on the




3
 We render no opinion as to the admissibility of Katcher’s testimony if plaintiff had not
sought to introduce evidence of the not guilty verdict or had in fact not introduced such
evidence.
                                       18



motion in limine. We conclude the court did not abuse its discretion in rejecting

Schroeder’s challenge to Katcher’s testimony on these grounds.

      Because we find no abuse of discretion in the court’s evidentiary rulings

Schroeder challenges on appeal, we affirm the jury’s verdict.

      AFFIRMED.
