Glen Landau, et al v. The City of Daytona Beach, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12947
____________________
GLEN LANDAU,
LANDAU ENTERPRISES, INC.,
d.b.a. Fryer’s Towing Service,
Plaintiffs-Appellants,
versus
THE CITY OF DAYTONA BEACH,
THE CITY OF HOLLY HILL,
JOSEPH W. SNOWDEN,
individually,
JOHN ( JACK) BISLAND,
individually,
NICHOLAS CHAMPION,
individually,
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2 Opinion of the Court 21-12947
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cv-00495-WWB-LRH
____________________
Before W ILSON , J ORDAN , and BRASHER , Circuit Judges.
PER CURIAM:
When a brand-new vehicle that has never been registered is
stolen from a dealership, mayhem can ensue. This case is a good
example.
After police in Holly Hill, Florida, found a stolen vehicle,
they called a local towing company—Fryer’s—to tow the vehicle.
Regrettably, the police also simultaneously removed the stolen ve-
hicle designation from their database without contacting Gary Yeo-
mans Ford, the dealership from where the vehicle had been stolen.
Fryer’s tried to locate the owner of the vehicle, but it was unsuc-
cessful, and then auctioned the vehicle. And when no one bought
the vehicle at the auction, Fryer’s tried to obtain title to it. In that
process, however, the tag and title company, which had been pro-
vided a list of recently stolen vehicles, realized the vehicle had been
reported stolen and contacted Gary Yeomans Ford.
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21-12947 Opinion of the Court 3
After the vehicle was recovered, a seven-month criminal in-
vestigation ensued and led to the administrative search of the
premises of Fryer’s, which was located in Daytona Beach, Florida.
It also led to the arrest of Glenn Landau—Fryer’s president and
part-owner—for grand theft of a motor vehicle and violation of
Florida’s tow lien statute.
Following a state bench trial, Mr. Landau was acquitted of
all charges. Mr. Landau and Fryer’s subsequently filed a civil rights
lawsuit under 42 U.S.C. § 1983 against two police officers, a state
attorney’s office investigator, and two municipalities for alleged
constitutional violations stemming from the search of Fryer’s and
Mr. Landau’s arrest and prosecution.
In this appeal, Mr. Landau and Fryer’s (the appellants) chal-
lenge the district court’s order granting summary judgment in fa-
vor of the defendants. After review of the parties’ briefs and the
record, and with the benefit of oral argument, we conclude that the
district court did not commit reversible error. First, though the
district court failed to recognize that there was a genuine issue of
material fact as to whether the administrative search of Fryer’s was
pretextual, the police officers were entitled to qualified immunity
for the search because the illegality of their conduct was not clearly
established. Second, the district court correctly concluded that Mr.
Landau’s Fourth Amendment rights were not violated and that the
claims against the municipalities failed. We therefore affirm the
district court’s summary judgment order.
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I
At summary judgment, we review the record in the light
most favorable to the appellants—the nonmoving parties—and
draw all reasonable inferences in their favor. See Carrizosa v.
Chiquita Brands Int’l, Inc., 47 F.4th 1278, 1328 (11th Cir. 2022).
A
On May 16, 2014, Nicholas Champion, an officer with the
Holly Hill Police Department, was dispatched to investigate a sus-
picious vehicle parked outside an apartment building in Holly Hill.
The vehicle had a stolen Georgia license plate affixed to it. Alt-
hough the vehicle did not have any decals or any other indicia of
its origin, during his investigation Officer Champion determined
that the vehicle was a 2014 Ford Mustang that had been recently
reported to the Daytona Beach Police Department as stolen from
Gary Yeomans Ford in Daytona Beach.
That same day, officers from the Holly Hill Police Depart-
ment contacted the Daytona Beach Police Department regarding
the stolen Mustang, but the latter declined to process its recovery.
The Daytona Beach Police Department, however, immediately re-
moved the “stolen stop hold” that had been placed on the stolen
Mustang in the NCIC/FCIC database. Officer Champion did not
notify Gary Yeomans Ford about the recovery of the stolen Mus-
tang.
After the Daytona Beach Police Department declined to pro-
cess the recovery of the Mustang, the Holly Hill Police Department
processed it, and called Fryer’s to tow the Mustang to its facility.
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21-12947 Opinion of the Court 5
Fryer’s is a family-owned towing storage company, which has been
in business since the 1920s. Mr. Landau was the president of
Fryer’s and one of the family members who worked at and man-
aged the business. At the time of the tow, Fryer’s had a contract
with Holly Hill for recovering, towing, and storing vehicles at its
request.
Fryer’s then dispatched Doug English, one of its employees
and a tow truck driver, to tow the Mustang. Because the Holly Hill
Police Department was still investigating the stolen vehicle, Mr.
English was supposedly asked to sign the Holly Hill Police Depart-
ment’s vehicle/property report (the tow sheet), which typically in-
cludes the name of the registered owner. Mr. English asserts that
he never received a copy of the tow sheet before the tow was com-
pleted and was told that a copy would be faxed to Fryer’s after it
was completed. Officer Champion claims he informed Mr. English
that the Mustang was stolen, but Mr. English asserts that he was
not given any information regarding the owner of the Mustang or
where it was stolen from.
B
After the Mustang was brought to Fryer’s tow yard, Fryer’s
employees took steps to locate the owner of the vehicle, as re-
quired by Florida’s tow lien statute, Fla. Stat. § 713.78. Specifically,
Darcie Podgorski, a Fryer’s employee in charge of compliance with
§ 713.78, ran the vehicle’s identification number (VIN) through the
auto dealer direct in the Motor Vehicles Databases and the Na-
tional Motor Vehicle Tile Information System (NMVTIS), but no
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6 Opinion of the Court 21-12947
person or entity was listed as the vehicle’s owner. Ms. Podgorski
then faxed the VIN and a complete description of the vehicle to the
Daytona Beach Police Department with a request for a record
search in all 50 states for the owner or lienholder of the vehicle.
She received a response that there was no record within any of the
50 states that indicated the ownership of the vehicle.
Fryer’s also requested a search for the vehicle in
NCIS/INLETS, but that too was returned with no owner listed.
Fryer’s checked the Department of Highway and Motor Vehicles
and the NMVTIS databases for information about the owner of the
vehicle, but still received no results. Fryer’s also sent a certified
Notice of Claim of Lien and Proposed Sale of Vehicle, Mobile
Home or Vessel to Ford Motor Company, but Ford never re-
sponded. Fryer’s further checked the vehicle for any tag, sticker,
or decals indicating registration from another state to no avail.
Fryer’s, however, did not contact the Holly Hill Police Department
for information about the vehicle’s ownership.
After Fryer’s failed to locate the owner of the Mustang, it
scheduled a vehicle auction and advertised the car in a local news-
paper. No one purchased the Mustang at the auction. Conse-
quently, Fryer’s submitted a title application for the Mustang to a
tag and title agency. While processing Fryer’s application, an em-
ployee of the agency discovered that the Mustang’s VIN matched
that of a vehicle reported stolen by Gary Yeomans Ford, which had
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21-12947 Opinion of the Court 7
previously provided a list of stolen vehicles. The employee then
notified Gary Yeomans Ford about Fryer’s title application.1
C
After learning that Fryer’s was in possession of the stolen
Mustang, Gary Yeomans, the owner of Gary Yeomans Ford, called
a friend—Craig Capri—who at the time was the captain of the Day-
tona Beach Police Department’s criminal investigative division.
Then Mr. Yeomans, Captain Capri, Detective Joseph Snowden,
and several other officers went to Fryer’s to conduct a search for
the Mustang. During the search, the Daytona Beach Police Depart-
ment located the Mustang and returned it to Gary Yeomans Ford.
Shortly thereafter, an investigation was opened and Detective
Snowden and John Bisland, an investigator with the State Attor-
ney’s Office, were assigned to it.
During their investigation, Detective Snowden and Investi-
gator Bisland issued numerous subpoenas and interviewed nearly
a dozen witnesses. Relevant to this appeal, Detective Snowden and
Investigator Bisland spoke to Officer Champion twice regarding
the stolen Mustang. During their second interview, Officer Cham-
pion testified under oath that he completed the tow sheet the night
that the Mustang was towed to Fryer’s, personally gave a com-
pleted copy of it to the Fryer’s driver (Mr. English), and told the
driver that the Mustang belonged to Gary Yeomans Ford.
1 Fryer’s title application was ultimately denied for insufficiency.
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8 Opinion of the Court 21-12947
Detective Snowden and Investigator Bisland also inter-
viewed Brendon Kilroe, the systems operation manager for the tit-
tle agency where Fryer’s had applied to obtain title to the Mustang.
Mr. Kilroe stated, under oath, that Mr. Landau called him to com-
plain regarding the denial of the title application for the Mustang
and that, during that conversation, Mr. Landau stated that he was
aware the car belonged to Gary Yeomans Ford.
At the conclusion of their seven-month investigation, Inves-
tigator Bisland submitted a charging affidavit, signed before Detec-
tive Snowden, seeking an arrest warrant against Mr. Landau for
grand theft of a motor vehicle and violation of the Florida tow lien
statute, § 713.78(12)(a). The following day, a felony warrant was
issued for Mr. Landau, and he was arrested at Fryer’s later that
same day.2
Simultaneously with Mr. Landau’s arrest on February 12,
2015, the Daytona Beach Police Department conducted an admin-
istrative search of Fryer’s for evidence of additional stolen vehicles
being unlawfully retained at the property for violations of the Flor-
ida tow lien statute. The search was conducted during normal busi-
ness hours by 13 officers and lasted approximately one hour. Fol-
lowing the administrative search, Detective Snowden applied for,
and obtained, a search warrant seeking information and docu-
ments related to (1) the 2014 Mustang, (2) a 2012 Gray Corvette,
and (3) a 2011 Chevrolet HHR.
2 Investigator Bisland also prepared a 29-page investigative summary.
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21-12947 Opinion of the Court 9
D
Mr. Landau was subsequently charged by information with
grand theft of a motor vehicle and violation of Florida’s tow lien
statute. Following a bench trial, Mr. Landau was acquitted of both
charges. The state court acknowledged that the State Attorney’s
Office conducted a “thorough and professional investigation[.]”
But it found that (1) Mr. Landau lacked the necessary intent to com-
mit grand theft, and that (2) the state failed to prove that Mr. Lan-
dau violated the good faith provision of the Florida tow lien statute.
Almost a year-and-a-half after his acquittal in state court, Mr.
Landau and Fryer’s filed a state-court lawsuit asserting claims (un-
der § 1983 and state law) against the City of Daytona Beach, the
City of Holly Hill, Detective Snowden, Investigator Bisland, and
Officer Champion. After the suit was removed to federal court,
Mr. Landau and Fryer’s filed an amended complaint asserting a to-
tal of 24 claims under both state and federal law.
E
The parties cross-moved for summary judgment. The dis-
trict court granted summary judgment in favor of the defendants
on all of the § 1983 claims and declined to exercise supplemental
jurisdiction over the remaining state-law claims.
First, the district court concluded that Mr. Landau’s false ar-
rest claims against the defendants failed as a matter of law because
he was arrested pursuant to an arrest warrant.
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10 Opinion of the Court 21-12947
Second, the district court ruled that Mr. Landau’s claim for
malicious prosecution against Detective Snowden and Investigator
Bisland failed because there was probable cause to charge Mr. Lan-
dau with grand theft and for a violation of the tow lien statute. The
district court explained that, notwithstanding the veracity of Of-
ficer Champion’s statements, there was independent probable
cause because (1) there was testimony from a witness (Mr. Kilroe)
who said he had personally spoken with Mr. Landau, who insisted
that title to the Mustang should have been issued to him despite his
knowledge that that it was owned by Gary Yeomans Ford, and (2)
Mr. Landau failed to contact the Holly Hill Police Department to
obtain the law enforcement report.
Third, the district court concluded that the administrative
search of Fryer’s was proper and reasonable because (1) the officers
were acting on the possibility that Fryer’s was storing stolen vehi-
cles on its property; (2) the search was conducted during business
hours; (3) the search lasted one hour; and (4) the officers did not
brandish their weapons, use physical force, or threaten, detain, or
search any employee.
Finally, the district court concluded that the claims against
Officer Champion and the municipal defendants failed. This was
because no constitutional violation had occurred.
After the district court denied a motion for reconsideration,
this appeal followed. We set the case for oral argument.
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21-12947 Opinion of the Court 11
II
The district court’s grant of summary judgment in favor of
the defendants is subject to de novo review. See Williams v. Radford,
64 F.4th 1185, 1188 (11th Cir. 2023). Summary judgment is appro-
priate when “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute about a material fact is genuine “if the evidence
is such that a reasonable jury could return a verdict for the non-
moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
III
Qualified immunity protects government officials perform-
ing discretionary functions from civil liability unless their conduct
violates clearly established statutory or constitutional rights of
which a reasonable person would have known. See Pearson v. Cal-
lahan, 555 U.S. 223, 231 (2009); Hope v. Pelzer, 536 U.S. 730, 739
(2002). Whether a defendant is entitled to qualified immunity is a
question of law decided by the court. See Courson v. McMillian, 939
F.2d 1479, 1486–87 (11th Cir. 1991).
In order to receive qualified immunity, the officers first must
show that they acted within the scope of their discretionary author-
ity. See Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). Because
that is not disputed here, the burden shifts to the appellants to show
that qualified immunity is inappropriate. See id. To meet their bur-
den, the appellants must show (1) that the officers violated their
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12 Opinion of the Court 21-12947
constitutional rights and (2) that the illegality of the officers’ con-
duct was “clearly established” when the incident occurred. See
Pearson, 555 U.S. at 232. “These two steps do not have to be ana-
lyzed sequentially; if the law was not clearly established, we need
not decide if the defendants actually violated the plaintiffs’ rights,
although we are permitted to do so.” Fils v. City of Aventura, 647
F.3d 1272, 1287 (11th Cir. 2011).
IV
We first analyze the appellants’ claims against all the individ-
ual defendants—Investigator Bisland, Detective Snowden, and Of-
ficer Champion—regarding the warrantless administrative search
of Fryer’s business. We then address Mr. Landau’s Fourth Amend-
ment claims. We conclude with the appellants’ claims against the
City of Daytona Beach for failure to train its police officers.3
A
The appellants challenge the district court’s ruling against
them regarding their claims related to the alleged warrantless ad-
ministrative search of Fryer’s business. See Appellants’ Br. at 22–
32. Specifically, Appellants argue that there was a genuine issue of
material fact about whether the administrative search of Fryer’s
was “pretextual” and “unreasonable.” Id. at 22.
3 The appellants brought § 1983 claims against both the City of Holly Hill and
the City of Daytona Beach, but now say that they “are no longer seeking relief
against the City of Holly Hill.” Appellants’ Reply Br. at 16.
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21-12947 Opinion of the Court 13
We agree with the appellants that there was a genuine issue
of material fact as to whether the administrative search was pre-
textual. But we conclude that qualified immunity nonetheless ap-
plies to the individual defendants because the illegality of the con-
duct was not clearly established when the administrative search oc-
curred.
1
In Florida, the warrantless physical inspection of towing fa-
cilities is specifically authorized by statute. See Fla. Stat. §
812.055(1)–(2). Law enforcement is permitted to inspect “any tow-
ing and storage facility” “for the purpose of locating stolen vehicles,
vessels, or outboard motors; investigating the titling and registra-
tion of vehicles or vessels; inspecting vehicles, vessels, or outboard
motors wrecked or dismantled; or inspecting records required in
[Fla. Stat. § 319.30 and § 713.78].” Id.
Administrative inspections, such as those permitted by
§812.055(1)–(2), are generally an exception to the Fourth Amend-
ment’s general probable cause and warrant requirement. Bruce v.
Beary, 498 F.3d 1232, 1239 (11th Cir. 2007) (citing New York v. Burger,
482 U.S. 691, 702–03 (1987)). But “[t]he administrative search ex-
ception does not confer authority on law enforcement to ignore
the requirement for a warrant where the primary purpose [of the
search or seizure] was to detect evidence of ordinary criminal
wrongdoing.” See Bruce, 498 F.3d at 1239 (internal quotation marks
omitted and alteration in the original) (quoting City of Indianapolis
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14 Opinion of the Court 21-12947
v. Edmond, 531 U.S. 32, 37 (2000)). The Supreme Court has also ex-
plained that an otherwise proper administrative search is violative
of the Fourth Amendment if it is conducted in an unreasonable
manner. See Donovan v. Dewey, 452 U.S. 594, 598 (1981). So, the
general analysis as to whether an administrative search is unconsti-
tutional proceeds in two analytical steps: (1) whether the search
was a true administrative search rather than pretext for an investi-
gation of ordinary criminal wrongdoing; and (2) if it was a true ad-
ministrative search, whether the search was conducted reasonably
under the Fourth Amendment.4
4 The concurrence suggests that an officer’s subjective level of suspicion is not
relevant to the constitutionality of a particular administrative search. But this
conflates the initial question of pretext and the subsequent question of reason-
ableness. This is likely due to much of the caselaw’s use of the term “reasona-
ble” without delineation between the reasonableness of a search at its incep-
tion—i.e., pretext—versus reasonableness in execution. See, e.g., Bruce, 498
F.3d at 1242 n.19 (“A factual finding of pretext would require, of course, the
legal conclusion of unconstitutional unreasonableness.”).
The Supreme Court has made clear that administrative searches do require an
analysis of pretext, because they are exempt from the Fourth Amendment’s
probable cause requirement. See, e.g., Ashcroft v. al-Kidd, 563 U.S. 731, 735–36
(2011) (noting that administrative searches are an exception to the general
Fourth Amendment’s objective-circumstances analysis because “actual moti-
vations do matter” to determine pretext) (collecting cases); Whren v. United
States, 517 U.S. 806, 811–12 (1996) (explaining that an administrative search’s
“exemption from the need for probable cause (and warrant) . . . is not accorded
to searches that are not made for those purposes”). Here, because we find a
genuine issue of material fact as to whether the 2015 search was pretextual,
we do not reach the question of reasonableness of the execution of the search.
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21-12947 Opinion of the Court 15
Here, the constitutionality of the administrative search that
Investigator Bisland and Detective Snowden conducted of Fryer’s
in February of 2015—the search that the appellants challenge—
turns on whether the primary purpose of their search and seizure
was to detect evidence of “ordinary criminal wrongdoing.” Id. We
conclude that there was a genuine issue of material fact regarding
the pretextual nature of the administrative search conducted in this
case.5
By the time of the February 2015 administrative search, In-
vestigator Bisland and Detective Snowden had been conducting
5 The concurrence also correctly notes that we have held that where the facts
are undisputed, reasonableness is a question for the trial judge and not the
jury. See Ziegler v. Martin Cnty. Sch. Dist., 831 F.3d 1309, 1319 (11th Cir. 2016).
But this presupposes the lack of a genuine dispute of material fact. And in any
event, we have also held that “[s]ummary judgment may be inappropriate
even where the parties agree on the basic facts, but disagree about the factual
inferences that should be drawn from these facts.” Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296–97 (11th Cir. 1983). See also Carrizosa
v. Chiquita Brands Int’l, Inc., 47 F.4th 1278, 1334 (11th Cir. 2022) (“Where rea-
sonable minds might differ on the inferences arising from undisputed facts,
summary judgment should not be granted, and a fact finder should be permit-
ted to determine which inferences to accept.” (internal citations and quota-
tions omitted)).
In the context of administrative searches, we have explained that “the question
of whether [an] administrative search was a pretext for an illegal purpose is a
factual question.” Bruce, 498 F.3d at 1242 n.19. We are not the only ones to
have come to this conclusion. See United States v. Johnson, 994 F.2d 740, 743
(10th Cir. 1993) (“Whether an administrative search is a pretext for a criminal
investigation is a factual question.”) (citing Abel v. United States, 362 U.S. 217,
225–30 (1960)).
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16 Opinion of the Court 21-12947
their investigation of suspected stolen vehicles at Fryer’s since July
of 2014. This seven-month-long investigation included (1) 11 inter-
views with 10 different witnesses; (2) the issuance and review of
responses to at least three different subpoenas for documents, in-
cluding records from the Department of Highway Safety and Mo-
tor Vehicles; (3) a photo lineup; and (4) recordings from the law
enforcement communications center. See D.E. 96-2. The investi-
gation was also broad in scope given that it not only included the
suspected stolen Mustang, but also the suspected stolen Corvette
and HHR.6
Before the administrative search was executed, Investigator
Bisland and Detective Snowden had secured an arrest warrant for
Mr. Landau regarding the stolen Mustang. See D.E. 112-1. And,
when the officers entered the premises to conduct the administra-
tive search, they removed documents related to all the suspected
stolen vehicles as well as other evidence of criminal wrongdoing—
(1) the Mustang email sheet/tow dispatch, (2) the Corvette email
sheet/tow dispatch, (3) Fryer’s tow book, and (4) one clear tube
with a green leafy substance. See D.E. 112-14.
Viewing the evidence in the record in the light most favora-
ble to the appellants, and drawing all reasonable inferences in their
6 The record indicates Investigator Bisland and Detective Snowden possessed
information related to the HHR prior to the February 2015 administrative
search because that vehicle was in the tow yard when the Daytona Beach Po-
lice Department conducted the first search of Fryer’s on July 9, 2014. See D.E.
112-21 ¶ 18. On that same day, the Daytona Beach Police Department placed
an administrative hold on the Corvette. See D.E. 103 at 20–22.
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21-12947 Opinion of the Court 17
favor, a jury could conclude that the purpose of the February 2015
administrative search was to detect evidence of “ordinary criminal
wrongdoing” and not simply an administrative exercise for the pur-
poses listed in § 812.055(1)–(2). The district court reasoned that the
“[d]efendants were acting on information concerning the possibil-
ity that Fryer’s was holding other stolen vehicles on its lot and evi-
dence relating to their records and registration,” but the evidence
can also support a finding that the officers here were acting on
more than a mere “possibility.” See D.E. 148 at 12 (emphasis in
original). The level of advanced planning undertaken well before
the administrative search was conducted—as evidenced by the ex-
tensive nature of the investigation, the contemporaneous arrest
warrant for Mr. Landau, and the officers’ focus on removing docu-
mentary and physical evidence—exhibited the hallmarks of a direct
and extensive criminal investigation. There is, moreover, no indi-
cation in the record that the search resulted in any administrative
actions or proceedings. Cf. Zadeh v. Robinson, 928 F.3d 457, 471 (5th
Cir. 2019) (administrative search of medical practice was not pre-
textual in part because state medical board initiated proceedings
against doctor and there was no indication that there was any crim-
inal prosecution).
Accordingly, the district court erred in failing to recognize
the existence of a genuine issue of material fact as to whether the
February 2015 administrative search was focused on ferreting out
criminal wrongdoing or simply inspecting Fryer’s towing business
for statutory compliance. See Miranda v. B & B Cash Grocery Store,
Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (“If reasonable minds
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18 Opinion of the Court 21-12947
could differ on the inferences arising from undisputed facts, then a
court should deny summary judgement.”).
2
Given our conclusion about the existence of a genuine issue
of material fact as to the pretextual nature of the administrative
search, we next consider whether the illegality of the officers’ con-
duct, even if true, was clearly established when the administrative
search was conducted in February of 2015. We conclude that it was
not.
A right is clearly established when it is “sufficiently clear that
every reasonable official would have understood that what he is
doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015)
(quotation marks omitted). “The usual way of establishing that a
constitutional violation was clearly established law is by pointing
to a case, in existence at the time, in which the Supreme Court or
this Court found a violation based on materially similar facts.”
Cantu v. City of Dothan, 974 F.3d 1217, 1232 (11th Cir. 2020). In as-
sessing qualified immunity, “the government actor’s intent and
motivation are insignificant[ ].” Flores v. Satz, 137 F.3d 1275, 1277
n.4 (11th Cir. 1998).7
7 There are, of course, other ways of showing that a right was clearly estab-
lished. See Waldron v. Spicher, 954 F.3d 1297, 1304 (11th Cir. 2020) (summariz-
ing the “three different ways that a plaintiff can prove that a particular consti-
tutional right is clearly established”).
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21-12947 Opinion of the Court 19
The Supreme Court has emphasized that “specificity is espe-
cially important in the Fourth Amendment context, where it is
sometimes difficult for an officer to determine how the relevant
legal doctrine . . . will apply to the factual situation the officer con-
fronts.” City of Tahlequah v. Bond, 142 S. Ct. 9, 12 (2021) (cleaned
up) (quoting Mullenix, 577 U.S. at 12). “It is not enough that a rule
be suggested by then-existing precedent”; rather, a “rule’s contours
must be so well defined that it is clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.” Id. at 11
(quotation marks omitted). “[E]xisting precedent must have placed
the statutory or constitutional question beyond debate.” Rivas-Vil-
legas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (quoting White v. Pauly, 137
S. Ct. 548, 551 (2017)).
We cannot say that, at the time the February 2015 adminis-
trative search was conducted, the contours of the rules regarding
the constitutionality of administrative searches of towing establish-
ments were well-defined or that the constitutional question was
beyond debate. Cf. Zadeh, 928 F.3d at 470 (“Because we have not so
far required there to be a clear limit on determining whom officials
select for an administrative search, the defendants reasonably could
have believed that the administrative scheme here provided a con-
stitutionally adequate substitute for a warrant.”).
In Bruce, an analogous case involving an administrative
search under § 812.055, we held in 2007 that the officers were per-
mitted to conduct a warrantless administrative inspection of a body
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20 Opinion of the Court 21-12947
shop. See 498 F.3d at 1242. There, we explained that under Su-
preme Court precedent “an administrative search [was] not ren-
dered invalid because it is accompanied by some suspicion of wrong-
doing.” Id. (emphasis in original) (citing United States v. Villamonte–
Marquez, 462 U.S. 579, 584 n.3 (1983)). We also explained that our
own precedent established we had “approved administrative
searches in response to information giving rise to some suspicion
of illegal activity.” Id. (citing Crosby v. Paulk, 187 F.3d 1339, 1348
and n.12 (11th Cir. 1999)). But we specifically declined to address
“the question of where to draw [the] line” for the degree of suspi-
cion of wrongdoing required for an administrative search to be in-
valid because we held that the officers were permitted to conduct
the administrative inspection of the premises based on the criminal
complaint they had received. See id.
Considering that Supreme Court and Eleventh Circuit prec-
edent have held that administrative searches do not violate the
Constitution simply because of the existence of some specific sus-
picion of wrongdoing, and that we have declined to draw a bright-
line rule, we cannot say that the illegality of the officers’ warrant-
less administrative search of Fryer’s business in February of 2015
was clearly established when the search occurred. In other words,
the contours of the rule regarding the level of suspicion of wrong-
doing that would invalidate an administrative search were not so
well-defined that we can say it was clear to a reasonable officer that
conducting a warrantless administrative search was unlawful given
the information possessed by Investigator Bisland and Detective
Snowden in this case.
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21-12947 Opinion of the Court 21
The appellants argue that “it was clearly established in 2015
that administrative searches – even where warranted – must be
conducted reasonably.” Appellants’ Br. at 25. That argument,
however, misses the mark. The relevant constitutional question for
purposes of qualified immunity is not only whether the administra-
tive search here was conducted reasonably, but also what degree
of suspicion is required to invalidate a warrantless administrative
search.
The appellants rely on a case from the Third Circuit, Showers
v. Spangler, 182 F.3d 165, 171 (3d Cir. 1999), but they have not iden-
tified any case or robust controlling consensus of cases from the
Supreme Court, the Eleventh Circuit, or the Florida Supreme
Court to support their clearly-established argument. See Bradley v.
Benton, 10 F.4th 1232, 1242–43 (11th Cir. 2021) (explaining that only
“decisions from the United States Supreme Court, this Court, or
the relevant state supreme court” are relevant in determining
whether the law was clearly established).8
8
Recognizing that Spangler is a case from outside this circuit, the appellants
argue that “most circuits, absent precedent in their own jurisdictions, look to
other circuits’ law to see whether there is ‘a consensus of cases of persuasive
authority,’ to determine clearly established law.” Appellants’ Reply Br. at 6
(citing Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 955 (11th Cir. 2003)). The
appellants therefore ask us to “reconsider” our precedent in Thomas that “only
Supreme Court cases, Eleventh Circuit caselaw, and [state supreme court]
caselaw can ‘clearly establish’ law in this circuit.” See Thomas, 323 F.3d at 955.
We decline the appellants’ invitation. First, we cannot overrule a prior pub-
lished decision absent an intervening Supreme Court or Eleventh Circuit en
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22 Opinion of the Court 21-12947
The appellants, moreover, do not even address or confront
our refusal in Bruce to draw a brightline rule regarding the level of
suspicion of wrongdoing required to invalidate a warrantless ad-
ministrative search. The appellants’ silence is fatal to their attempt
to defeat qualified immunity.
We affirm, on qualified immunity grounds, the district
court’s grant of summary judgment in favor of Investigator Bis-
land, Detective Snowden, and Officer Champion on the claims re-
lated to the February 2015 search.
B
We next turn to Mr. Landau’s claim that the individual de-
fendants violated his Fourth Amendment right to be free from un-
reasonable seizure by engaging in malicious prosecution. See Ap-
pellants’ Br. at 32. Mr. Landau contends that the actions of Officer
Champion, Detective Snowden, and Investigator Bisland—provid-
ing false testimony or swearing out a false legal process—caused
him to be unlawfully seized in violation of his Fourth Amendment
rights. See id. We reject Mr. Landau’s argument because there was
arguable probable cause for his arrest and seizure.
banc case. See Scott v. United States, 890 F.3d 1239, 1257 (11th Cir. 2018). Sec-
ond, aside from Spanger, the appellants have failed to identify any consensus
of authority either from this Circuit or elsewhere clearly establishing the level
of suspicion of wrongdoing required to invalidate a warrantless administrative
search. A single Circuit decision does not constitute a “consensus.”
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21-12947 Opinion of the Court 23
1
Mr. Landau asserted federal claims for false arrest and mali-
cious prosecution against Officer Champion, Detective Snowden,
and Investigator Bisland. The district court concluded that Mr.
Landau’s false arrest claims failed as a matter of law because it was
undisputed that he was arrested pursuant to the arrest warrant that
Detective Snowden and Investigator Bisland obtained for viola-
tions of the Florida grand theft of a motor vehicle statute and the
Florida tow lien statute. Mr. Landau does not appear to challenge
that conclusion on appeal. Mr. Landau instead challenges the dis-
trict court’s ruling on his malicious prosecution claim. Conse-
quently, he has abandoned any challenge to the district court’s rul-
ing on his false arrest claims. See Holland v. Gee, 677 F.3d 1047, 1066
(11th Cir. 2012) (explaining that issues not raised in the initial brief
are abandoned).
With that said, we focus on Mr. Landau’s malicious prose-
cution claims. Malicious prosecution can violate the Fourth
Amendment and constitute a viable constitutional tort cognizable
under § 1983. See Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003).
A § 1983 malicious-prosecution claim requires proof of (1) the ele-
ments of the common-law tort of malicious prosecution and (2) a
violation of Mr. Landau’s Fourth Amendment right against unrea-
sonable seizures. See Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir.
2019); Blue v. Lopez, 901 F.3d 1352, 1357 (11th Cir. 2018).
As to the first prong, the common-law elements of malicious
prosecution are (1) a criminal prosecution instituted or continued
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24 Opinion of the Court 21-12947
by the present defendant; (2) with malice and without probable
cause; (3) that terminated in Mr. Landau’s favor; and (4) caused
damage to Mr. Landau. See Kjellsen v. Mills, 517 F.3d 1232, 1237
(11th Cir. 2008). See also Thompson v. Clark, 142 S. Ct. 1332, 1338
(2022) (“American courts described the elements of the malicious
prosecution tort as follows: (i) the suit or proceeding was instituted
without any probable cause; (ii) the motive in instituting the suit
was malicious, which was often defined in this context as without
probable cause and for a purpose other than bringing the defendant
to justice; and (iii) the prosecution terminated in the acquittal or
discharge of the accused.”) (internal quotation marks and citation
omitted). And as to the second prong, “it is well established that
an arrest without probable cause is an unreasonable seizure that
violates the Fourth Amendment.” Grider v. City of Auburn, Ala., 618
F.3d 1240, 1256 (11th Cir. 2010). “Consequently, the existence of
probable cause defeats a § 1983 malicious prosecution claim.” Id.
Probable cause exists when the facts and circumstances, of
which the official has reasonably trustworthy information, would
cause a prudent person to believe that the suspect has committed,
is committing, or is about to commit an offense. See Jordan v. Mos-
ley, 487 F.3d 1350, 1355 (11th Cir. 2007). But to receive qualified
immunity, “an officer need not have actual probable cause, but
only ‘arguable’ probable cause.” Grider, 618 F.3d at 1257. Arguable
probable cause “exists where reasonable officers in the same cir-
cumstances and possessing the same knowledge as the [d]efendants
could have believed that probable cause existed to arrest.” Id.
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21-12947 Opinion of the Court 25
Mr. Landau argues that Investigator Bisland and Detective
Snowden submitted false statements in support of the probable
cause affidavit primarily because they relied on the false statements
of Officer Champion. See Appellants’ Br. at 34–35. Mr. Landau also
asserts that they “fabricated evidence to influence the probable
cause determination.” Id. at 35. According to Mr. Landau, the dis-
trict court erred when it concluded that “the statements upon
which [he] relies were neither false nor misleading when consid-
ered in the context of the [c]harging [a]ffidavit.” See id. at 40. Like
the district court, we disagree with Mr. Landau’s characterization
of statements in the charging affidavit.
Generally, an arrest warrant is invalid “if the affidavit sup-
porting the warrant contains deliberate falsity or reckless disregard
for the truth.” Dahl v. Holley, 312 F.3d 1228, 1235 (11th Cir. 2002)
(citations omitted). Mr. Landau provides a laundry list of what he
calls “false” or “only partly true” facts that were included in the
charging affidavit: (1) “Landau did not tow or come into possession
of the vehicle”; (2) “Champion never provided Doug English,
Fryer’s’ tow operator, with a yellow copy of the HHPD tow sheet
that Champion prepared”; (3) “Champion never told English that
the Mustang had been stolen and was owned by Yeomans Ford”;
(4) “Landau never endeavored to obtain title to the Mustang,
knowing the owner was Yeomans Ford”; (5) “the vehicle’s owner
was unknown and, even if known, Yeomans Ford was not the reg-
istered owner”; (6) “Landau never ‘claimed a lien for the recovery,
towing and storage of the described vehicle in the amount of
$1,811.01’”; (7) “Landau never ‘used Florida State Statute section
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26 Opinion of the Court 21-12947
713.78 to conceal the fact that he knew the Mustang was owned by
Gary Yeomans Ford’ because it was not the owner [ ] and there was
no requirement that Landau or Fryer’s contact HHPD and obtain
or review their police report to identify the owner”; and (8) “a
check of the HHPD report for the tag number or other information
identifying the vehicle would not have identified the owner, be-
cause the vehicle’s tag was a Georgia tag stolen from another vehi-
cle.” Appellants’ Reply Br. at 9–11.
Even when viewing Mr. Landau’s laundry list of purportedly
false facts or half-truths in the light most favorable to him, we are
not persuaded that Investigator Bisland or Detective Snowden de-
liberately or recklessly misstated evidence or omitted any material
fact which would negate arguable probable cause for his arrest. For
starters, the Supreme Court has explained that probable cause “is
not a high bar” and “requires only a probability or substantial
chance of criminal activity, not an actual showing of such activity.”
D.C. v. Wesby, 138 S. Ct. 577, 586 (2018). And arguable probable
cause is a standard lower than probable cause. See Crosby v. Monroe
Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004). As noted, qualified im-
munity still applies if the officer reasonably but mistakenly believed
that probable cause existed. See Grider, 618 F.3d at 1257.
Mr. Landau failed to establish that Investigator Bisland and
Detective Snowden did not meet this minimum threshold of argu-
able probable cause. At best, all Mr. Landau has done, as the dis-
trict court recognized, is create some issues of material fact as to
the veracity of some of Officer Champion’s statements, based on
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21-12947 Opinion of the Court 27
after-the-fact events that came to light during his state criminal
trial. For example, Mr. Landau states that “it is contested that [Of-
ficer] Champion prepared and authored a tow sheet and provided
it to Doug English, Fryer’s tow truck operator, at the scene of the
tow” because “[t]his was proven to be false when [Officer] Cham-
pion recanted his statements about the tow sheet at the criminal trial
after being given immunity for perjury.” Id. at 41 (emphasis in orig-
inal). That Officer Champion recanted a statement at trial, how-
ever, does not mean that Investigator Bisland and Detective Snow-
den falsified evidence or that a reasonable police officer could not
have believed or relied on Officer Champion’s sworn statement
when he provided it. At the time of their investigation, Investiga-
tor Bisland and Detective Snowden did not know that any state-
ments made by Officer Champion were inaccurate or false. Nor
did they have any reason, based on the record in this case, to doubt
or question Officer Champion’s sworn statements.
For the reasons we discuss in more detail below, we con-
clude that Detective Snowden and Investigator Bisland had argua-
ble probable cause. “Whether an officer possesses arguable proba-
ble cause depends on the elements of the alleged crime and the op-
erative fact pattern.” Grider, 618 F.3d at 1257. Thus, we next eval-
uate the operative facts against the specific crimes that Mr. Landau
was charged with—grand theft of a motor vehicle and violation of
Florida’s tow lien statue.
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28 Opinion of the Court 21-12947
2
The elements of grand theft of a motor vehicle under Fla.
Stat. § 812.014 are (1) the knowing and unlawful obtaining or use,
or the knowing and unlawful endeavor to obtain or use, (2) the
motor vehicle of another, (3) with the intent to either temporarily
or permanently (a) deprive the owner or lawful possessor of a mo-
tor vehicle of the right to the vehicle or the benefit from it, or (b)
to appropriate the motor vehicle for the accused’s own use or for
the use of any person not entitled to it. See Fryer v. State, 732 So.2d
30, 33 (Fla. 5th DCA 1999).
The charging affidavit submitted by Investigator Bisland,
and signed by Detective Snowden, stated that (1) Mr. Landau en-
deavored to obtain title of the Mustang, knowing that the owner
of the motor vehicle was Gary Yeomans Ford; (2) Mr. Landau used
§ 713.78 to conceal the fact that he knew the Mustang was owned
by Gary Yeomans Ford, and circumvented the requirement to con-
tact the Holly Hill Police Department and obtain or review their
police report which would have identified the owner; (3) Mr. Lan-
dau advised he did not contact the Holly Hill Police Department
for the report about the Mustang because it would not have made
a difference; (4) Mr. Kilroe reported that Mr. Landau called his of-
fice upset and spoke specifically about the Mustang—stating “it was
stolen, I recovered it, I have rights, I did my due diligence and I
should be getting a title for that no questions about it”; and (5) Mr.
Kilroe also reported that Mr. Landau told him, “I know it is their
vehicle, I knew it was their vehicle because law enforcement had
me tow it,” when he mentioned the reason his office called Gary
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21-12947 Opinion of the Court 29
Yeomans Ford about the Mustang. See D.E. 112-2 at 1–3. Investi-
gator Bisland concluded that based on these facts—particularly Mr.
Landau’s alleged statements to Mr. Kilroe revealing his knowledge
that Gary Yeomans Ford was the owner of the Mustang at the time
Fryer’s towed it—that he had probable cause to believe that Mr.
Landau “knowingly endeavored to obtain the described 2014 Ford
Mustang motor vehicle, with the intent to temporarily or perma-
nently deprive Gary Yeomans Ford of the company’s right or ben-
efit from the motor vehicle by attempting to have it titled to Fryer’s
Towing Service[.]” Id. at 3.
Considering these facts, Investigator Bisland and Detective
Snowden had at least arguable probable cause to arrest Mr. Landau
for grand theft of a motor vehicle and were thus entitled to quali-
fied immunity. Mr. Kilroe’s statements, for example, indicated that
Mr. Laundau knew the Mustang was owned by Gary Yeomans
Ford.
Mr. Landau denies that Investigator Bisland and Detective
Snowden had arguable probable cause because he could not have
had the “specific intent required for the charge” and “specific intent
is an essential element of grand theft.” Appellants’ Br. at 43. Mr.
Landau’s argument, however, fails because, even assuming that
specific intent is an essential element of grand theft of a motor ve-
hicle, “[a]rguable probable cause does not require an arresting of-
ficer to prove every element of a crime or to obtain a confession
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30 Opinion of the Court 21-12947
before making an arrest, which would negate the concept of prob-
able cause and transform arresting officers into prosecutors.” Lee,
284 F.3d at 1195.
Additionally, as the district court observed, “[Investigator]
Bisland consulted with a prosecutor at the State Attorney’s Office
on the applicable statutes throughout the investigation[.]” D.E. 148
at 9. See D.E. 101-9 at 60. And a “judicial officer in full possession
of the facts—including how Landau came into possession of the
vehicle—found that probable cause existed.” D.E. 148 at 9. The
fact that a neutral magistrate ultimately issued the arrest warrant
undercuts Mr. Landau’s argument. See Messerschmidt v. Millender,
565 U.S. 535, 546 (2012) (“Where the alleged Fourth Amendment
violation involves a search or seizure pursuant to a warrant, the
fact that a neutral magistrate has issued a warrant is the clearest
indication that the officers acted in an objectively reasonable man-
ner.”). See also Washington v. Howard, 25 F.4th 891, 904 (11th Cir.
2022) (“If an officer fully and honestly places evidence before the
magistrate, reasonably believing that there is probable cause, those
‘procedural steps . . . shield against a Fourth Amendment claim.’”).9
Mr. Landau also relies on the fact that he was acquitted of
the criminal charges brought against him to argue that Investigator
Bisland and Detective Snowden lacked arguable probable cause to
arrest him for grand theft of a motor vehicle. See Appellants’ Br. at
36. Mr. Landau’s argument is foreclosed by our precedent. For
9 And, as discussed, we reject Mr. Landau’s argument that such search warrant
was based on a falsified probable cause affidavit.
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21-12947 Opinion of the Court 31
purposes of determining the reasonableness of an individual’s sei-
zure, “it is of no moment that [he] was later exonerated.” Wash-
ington v. Howard, 25 F.4th 891, 904 (11th Cir. 2022). See also United
States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976) (“One . . . purpose
[of the warrant requirement] is to prevent hindsight from coloring
the evaluation of the reasonableness of a . . . seizure.”).
Finally, Mr. Landau argues that it was unreasonable for In-
vestigator Bisland and Detective Snowden to interpret Mr. Kilroe’s
testimony “as establishing that [he] knew, when the vehicle was
towed, that it was owned by Gary Yeomans.” Appellants’ Br. at 50.
That argument fails because even taking Mr. Kilroe’s testimony in
the light most favorable to Mr. Landau—namely that Mr. Landau
knew the Mustang belonged to the dealership because that is what
the police told him when they went to arrest him and search the
premises—the result remains the same.10
The issue is not what was known to Mr. Landau, but
whether the information reported by Mr. Kilroe to Investigator Bis-
land and Detective Snowden was sufficient to support a finding of
arguable probable cause. We think that it was. And, for the same
reason we previously noted, Mr. Landau’s reliance on Mr. Kilroe’s
10
Mr. Landau notes that Mr. Kilroe’s complete testimony from the sworn state-
ments that he provided to officers before Mr. Landau’s arrest is as follows: “Q:
So Glenn [Landau] told you that he knew it as Yeoman’s vehicle? A: Yes. Q:
Because that’s what was represent[ed] to him --A: Yes. Q: -- by law enforce-
ment. A: And he said that there was - that - he said Gary Yeomans and like five
or six cop cars are at his business now, and he was all mad because now he's
looking bad.” Appellants’ Br. at 50 n.32 (citing D.E. 101-10 at 37).
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32 Opinion of the Court 21-12947
after-the-fact testimony during the state criminal trial does not tip
the scales in his favor. See Appellants’ Br. at 50 (citing Mr. Kilroe’s
trial testimony, D.E. 151-2 at 28 (“Q: Did he indicate that he knew
who the owner was of the vehicle before July 9, 2014? A: No not to
us.”)).
3
Under the relevant provisions of Fla. Stat. § 713.78, it is a
misdemeanor for “[a] person regularly engaged in the business of
recovering, towing, or storing vehicles or vessels who comes into
possession of a vehicle or vessel pursuant to [instructions from a
law enforcement agency],” see §§ (4)(a) and (2)(d) (respectively),
and “who claims a lien for recovery, towing, or storage services,”
see § (4)(a), to fail to make “a good faith effort” to locate the name
and address of the owner of the towed vehicle, including “[a] check
of the law enforcement report for a tag number or other infor-
mation identifying the vehicle or vessel, if the vehicle or vessel was
towed at the request of a law enforcement officer,” see §§ (4)(e) and
(4)(e)(4) (respectively). See generally Fla. Stat. § 713.78(12) (making
it a misdemeanor to violate, in relevant part, subsections (2) and
(4)).
With respect to the tow lien statute violation, Investigator
Bisland stated in the charging affidavit that “[Mr.] Landau used . . .
Florida State Statute 713.78 to conceal the fact that he knew the
Mustang was owned by Gary Yeomans Ford and circumvented the
requirement to contact [the Holly Hill Police Department] and ob-
tain or review their police report which would have identified the
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21-12947 Opinion of the Court 33
owner.” D.E. 112-2 at 2. After explaining the notice requirements
under § 713.78, Investigator Bisland acknowledged that Mr. Lan-
dau “initiated and performed several statutory requirements to
meet ‘a good faith’ effort . . . to identify the owner of the motor
vehicle.” Id. Investigator Bisland, however, alleged that Mr. Lan-
dau violated § 713.78 by “failing to check or request the Holly Hill
Police Department report for the tag number or other information
identifying the motor vehicle[.]” Id. Investigator Bisland believed
that “[a] check of the Holly Hill Police Department report for the
tag number or other information identifying the motor vehicle
would have resulted in the immediate identification of the owner;
Gary Yeomans Ford.” Id. Investigator Bisland further noted that
“[c]ompleting some of the requirements of the ‘Good Faith’ section
of the statute allowed [Mr.] Landau to give the appearance of legit-
imately searching for the true owner of the Mustang, however he
also knew the searches conducted would provide ‘No Record
Found’ results regarding the identity of the owner.” Id. Investiga-
tor Bisland therefore concluded that Mr. Landau had violated §
713.78(12)(a)—a misdemeanor of the first degree. See id. at 3.
We conclude that Investigator Bisland and Detective Snow-
den had at least arguable probable cause to arrest Mr. Landau for
violations of Florida’s tow lien statute and are therefore entitled to
qualified immunity. A reasonable officer, with the information
that Investigator Bisland and Detective Snowden had at the time
they completed the charging affidavit—(1) that Fryer’s (through its
driver, Mr. English) had received the tow sheet which identified the
owner of the vehicle, (2) that a search of the tow sheet would have
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34 Opinion of the Court 21-12947
resulted in the immediate identification of the owner of the vehicle,
and (3) that Mr. Landau knew that some of the searches that were
conducted to meet the good faith requirement would turn up
empty-handed—could have believed that Mr. Landau violated
Florida’s tow lien statute.
Significantly, the statute at issue here, § 713.78(4)(e)(4), ex-
pressly required the good faith effort to include “[a] check of the
law enforcement report for a tag number or other information iden-
tifying the vehicle or vessel, if the vehicle or vessel was towed at the
request of a law enforcement officer,” as occurred in this case. In-
vestigator Bisland and Detective Snowden could have reasonably
believed (even if that belief later turned out to be mistaken or in-
sufficient for a conviction) that the failure to contact the Holly Hill
Police Department to determine the owner of the vehicle, when
considered under the totality of the circumstances, was sufficient
to arrest Mr. Landau.
Mr. Landau argues that the charging affidavit “baldly ac-
cused” him of not meeting the good faith requirement of the tow
lien statute. See Appellants’ Br. at 46. According to Mr. Landau, a
check of the vehicle’s tag number “would not have produced any
information about the Mustang’s owner.” Id. Thus, Mr. Landau
accuses the officers—based in part on the findings of the state
court—of knowing that Fryer’s had conducted “an exhaustive
good faith search” but failing to “provide that evidence in the
Charging Affidavit.” Id. This argument is unpersuasive for several
reasons.
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21-12947 Opinion of the Court 35
First, as we previously explained, the good faith requirement
to check the police report when a vehicle has been towed at the
request of the police is not limited to checking the “tag number”
but also requires a check for “other information identifying the ve-
hicle or vessel.” See § 713.78(4)(e)(4). Although Mr. Landau is cor-
rect that a check for the tag number ultimately would not had been
helpful because the Mustang had a stolen Georgia license plate, a
check of the report from the Holly Hill Police Department would
have resulted in the “immediate identification of the owner” of the
Mustang, as Investigator Bisland and Detective Snowden noted in
the charging affidavit. See D.E. 112-2 at 2. The report listed “Gary
Oman’s Ford” (presumably a typo for “Gary Yeomans”) on two
separate places as the “Lien Holder” and “Registered Owner,” and
listed the address of the registered owner as the “Daytona Beach
Auto Mall.” See D.E. 112-8.
Second, Investigator Bisland and Detective Snowden did not
fail to provide evidence of the “exhaustive” good faith search that
had been conducted. See Appellants’ Br. at 46. Contrary to Mr.
Landau’s contention, the charging affidavit expressly acknowl-
edged that Mr. Landau “initiated and performed several statutory
requirements to meet a ‘good faith’ effort as outlined in Florida
State Statute (FSS) to identify the owner of the motor vehicle[.]”
D.E. 112-2 at 2. The charging affidavit even noted that both Mr.
Landau and Mr. English denied having received the tow sheet on
May 16, 2014. See id. Additionally, the comprehensive 29-page in-
vestigative summary prepared by Investigator Bisland explained in
detail all the efforts Fryer’s had undertaken to identify and locate
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36 Opinion of the Court 21-12947
the owner of the Mustang based in part on the testimony of Ms.
Podgorski. See D.E. 101-11 at 24–26. Thus, Mr. Landau’s charac-
terization that the warrant was “infirm due to intentionally or reck-
lessly false statements and/or omissions that were necessary to the
probable cause determination” fails. See Appellant’s Br. at 46–47.
Finally, as we previously explained, the state court’s finding
that Mr. Landau had conducted a good faith search for the owner
of the vehicle “by anyone’s measure” does not affect arguable prob-
able cause. See Wilkerson v. Seymour, 736 F.3d 974, 978 (11th Cir.
2013) (“What counts for qualified immunity purposes relating to
probable cause to arrest is the information known to the defendant
officers or officials at the time of their conduct, not the facts known
to the plaintiff then or those known to a court later.”) (internal quo-
tation marks omitted).
In sum, the district court correctly ruled that Investigator
Bisland and Detective Snowden were entitled to qualified immun-
ity.11
C
Next, we address the appellants’ claim against the City of
Daytona Beach for the 2015 raid of Fryer’s and the resulting sei-
zures based on the City’s failure to properly train its police officers
on how to conduct administrative inspections. The district court
ruled that the appellants’ § 1983 municipal liability claims against
11 We also affirm the district court’s grant of qualified immunity for Officer
Champion for the cogent reasons set out in its order. See D.E. 148 at 14–15.
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21-12947 Opinion of the Court 37
the City of Daytona Beach necessarily failed because neither Mr.
Landau nor Fryer’s could establish an underlying constitutional vi-
olation by the individual officers. See D.E. 148 at 15. But, as dis-
cussed earlier, we conclude that the district court erred in failing to
recognize a genuine dispute of material fact as to whether the of-
ficers’ 2015 administrative search was pretextual and unconstitu-
tional. Nonetheless, because the appellants did not establish a City
of Daytona Beach custom or policy that caused the potential viola-
tion, we affirm on alternative grounds.12
“The Supreme Court has placed strict limitations on munic-
ipal liability under [§] 1983.” Gold v. City of Miami, 151 F.3d 1346,
1350 (11th Cir. 1998). This liability may only be premised on a con-
stitutional violation carried out by the municipality itself and can-
not be based on theories of respondeat superior or vicarious liabil-
ity. See id.; Knight ex rel. Kerr v. Miami-Dade Cnty., 856 F.3d 795, 818
(11th Cir. 2017). Rather, “a municipality may be held liable for the
actions of a police officer only when municipal ‘official policy’
causes a constitutional violation.” Gold, 151 F.3d at 1350 (citing
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694–95 (1978)). And this
“official policy” must be the “moving force behind the constitu-
tional violation.” City of Canton v. Harris, 489 U.S. 378, 388 (1989)
(internal citation and bracket omitted). Thus, “to impose § 1983 li-
ability on a municipality, a plaintiff must show: (1) that his consti-
tutional rights were violated; (2) that the municipality had a custom
12 We may affirm the district court’s order on any ground supported by the
record. See Powers v. United States, 996 F.2d 1121, 1123 (11th Cir. 1993).
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38 Opinion of the Court 21-12947
or policy that constituted deliberate indifference to that constitu-
tional right; and (3) that the policy or custom caused the violation.”
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
In limited circumstances, municipal policy or custom may
include a failure to provide adequate training if the deficiency “ev-
idences a deliberate indifference to the rights of its inhabitants.”
City of Canton, 489 U.S. at 385. Deliberate indifference “is a stringent
standard of fault, requiring proof that a municipal actor disregarded
a known or obvious consequence of his action.” Bd. of Cnty.
Comm’rs of Bryant Cnty., Okla. v. Brown, 520 U.S. 397, 410 (1997). See
also Connick v. Thompson, 563 U.S. 51, 61 (2011) (“A municipality’s
culpability for a deprivation of rights is at its most tenuous where
a claim turns on a failure to train.”). To establish deliberate indif-
ference in this context, “a plaintiff must present some evidence that
the municipality knew of a need to train and/or supervise in a par-
ticular area and the municipality made a deliberate choice not to
take any action.” Gold, 151 F.3d at 1350. A plaintiff may do this by
pointing to evidence that municipal policymakers “are on actual or
constructive notice that a particular omission in their training pro-
gram causes city employees to violate citizens’ constitutional
rights.” Connick, 563 U.S. at 61. Requisite notice can be established
in two ways: (1) if the municipality is aware that a pattern of similar
constitutional violations exists and nevertheless fails to provide ad-
equate training to remediate those violations; or (2) if the likeli-
hood for constitutional violation is so high that the need for train-
ing would be obvious. Gold, 151 F.3d at 1351–52.
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21-12947 Opinion of the Court 39
The appellants argue that both alternatives are satisfied
here.
First, the appellants point to two additional allegedly pre-
textual administrative searches as evidence of a “pattern of similar
constitutional violations” sufficient to constitute actual or con-
structive notice on behalf of the City of Daytona Beach: (1) the 2014
administrative search conducted at Fryer’s in this case, and (2) the
facts at issue in Bakri v. City of Daytona Beach, 716 F. Supp. 2d 1165
(M.D. Fla. 2010). Neither suffices to put the City of Daytona Beach
on notice.
The facts of Bakri do not support appellants’ assertion that
the City of Daytona Beach was on notice that its officers were en-
gaged in a pattern of conducting unconstitutional administrative
searches. Namely, the officers in Bakri did not conduct an adminis-
trative search at all, let alone one sufficiently similar to the search
conducted at Fryer’s in 2015. See, e.g., Mercado v. City of Orlando, 407
F.3d 1152, 1162 (11th Cir. 2005) (finding no municipal liability
where plaintiff introduced list of cases of excessive force but could
not show that “any of them involved factual situations that are sub-
stantially similar to the case at hand”).13
13 To the extent the appellants tangentially argue that City policymakers “rat-
ified” the alleged constitutional violations, that argument is foreclosed by our
holding in Salvato v. Miley, 790 F.3d 1286, 1297 (11th Cir. 2015). In Salvato, we
acknowledged that a police department’s “persistent failure to take discipli-
nary action against officers can give rise to the inference that a municipality
has ratified conduct”; however, we also declined to find ratification where a
sheriff “fail[ed] to investigate a single incident.” Id. Likewise, the suggestion in
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40 Opinion of the Court 21-12947
In Bakri, it is undisputed that the officers arrived at Mr.
Bakri’s place of business to arrest his son but did so without a war-
rant. See 716 F. Supp. 2d at 1169. During that warrantless arrest at-
tempt, the officers handcuffed Mr. Bakri, broke his wrist, and even-
tually charged him with resisting with violence for refusing to al-
low the officers entry. See id. at 1169–70. The district court held that
the officers’ conduct constituted an unconstitutional search and sei-
zure in violation of the Fourth Amendment. See id. at 1172–74. Un-
like the situation here, there is no indication that the officers in
Bakri proclaimed—at the time of the constitutional violation—that
they were conducting an administrative search. Rather, during the
course of litigation and as justification for their qualified immunity
defenses, the officers merely proposed that their warrantless search
of the business was justified under Florida’s Beverage Law, Fla.
Stat. § 562.41, an argument the district court rejected. See id. at
1172–73. The district court in Bakri did not hold that the officers
conducted an unreasonable or pretextual administrative search; ra-
ther, the court merely rejected the officers’ post hoc argument that
they were entitled to search the premises anyways. See id. As such,
we reject the appellants’ argument that Bakri put the City of Day-
tona Beach on actual or constructive notice of a pattern of similar,
pretextual administrative searches.
the appellants’ brief that Craig Capri was a policymaker because he is now the
chief of police is rejected; he was not the chief of police at the time of the
search. See Appellants’ Br. at 52 n.33.
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21-12947 Opinion of the Court 41
Disposing of the facts of Bakri as inapposite, we are left with
only one additional allegation of a similar unconstitutional admin-
istrative search—the 2014 administrative search conducted at
Fryer’s in this very case. First, there was no finding prior to the
2015 administrative search that the 2014 search was itself pretextual
or otherwise unconstitutional; thus, the 2014 search would not
have put the City on notice of any malfeasance or training neces-
sary for its officers. Second, even assuming arguendo that the 2014
search was unconstitutional, we have consistently rejected, with
limited exception, evidence of a single incidence of unconstitu-
tional activity as sufficient to impose liability under Monell. See, e.g.,
Kerr, 856 F.3d at 820 (finding no municipal liability where “the only
‘evidence’ suggesting a pattern of tortious conduct is this case it-
self”); Craig v. Floyd Cty., Ga., 643 F.3d 1306, 1311 (11th Cir. 2011)
(no municipal liability unless plaintiff can show a “series of consti-
tutional violations from which deliberate indifference can be in-
ferred”) (emphasis added and quotations omitted). Cf. City of Okla-
homa City v. Tuttle, 471 U.S. 808, 823–24 (1985) (“Proof of a single
incident of unconstitutional activity is not sufficient to impose lia-
bility under Monell, unless proof of the incident includes proof that
it was caused by an existing unconstitutional policy, which policy
can be attributed to a municipal policymaker.”); Depew v. City of St.
Mary’s, Ga., 787 F.2d 1496, 1499 (11th Cir. 1986) (“Normally ran-
dom acts or isolated incidents are insufficient to establish a custom
or policy.”) (internal citation omitted).
Because the appellants cannot establish a pattern of substan-
tially similar constitutional violations, they must establish that “the
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42 Opinion of the Court 21-12947
unconstitutional consequences of failing to train” the City’s officers
in administrative searches are “patently obvious.” Connick, 563 U.S.
at 64. The Supreme Court has hypothesized a single example of
this rare situation: a municipality’s failure to train officers about the
constitutional limits on the use of deadly force with knowledge that
those officers will be armed and expected to use those weapons in
the course of their duties. See id. at 63; City of Canton, 489 U.S. at
390 n.10. The appellants’ contention that the City’s officers were
inadequately trained regarding administrative searches—let alone
administrative searches involving the nuances of Florida Statute §
812.055—“fall[ ] far short of the kind of ‘obvious’ need for training
that would support a finding of deliberate indifference to constitu-
tional rights on the part of the city.” Gold, 151 F.3d at 1352 (finding
no obvious need for officers to be trained on Florida’s disorderly
conduct statute and the proper response to handcuff complaints)
(quoting City of Canton, 489 U.S. at 396–97).
The risk of imperfection here, if any, “is not obvious in the
abstract,” Gold, 151 F.3d at 1353 (quotation and citation omitted).
And we will not find municipal liability for each such imperfection
“under the rubric of failure to train simply because the municipal-
ity does not have a professional education program covering the
specific violation in sufficient depth.” Connick, 563 U.S. at 73–74
(Scalia, J., concurring). Mr. Landau and Fryer’s have not established
the requisite notice to support Monell liability; thus, we affirm dis-
missal of their Monell claims against the City of Daytona Beach.
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21-12947 Opinion of the Court 43
V
The district court correctly granted summary judgment in
favor of the defendants. Although the district court erred in failing
to recognize the existence of a genuine issue of material fact regard-
ing the pretextual nature of the administrative search of Fryer’s, the
individual defendants were entitled to qualified immunity because
the illegality of their conduct was not clearly established. We also
agree that the claims against the City of Daytona Beach failed, al-
beit on alternative grounds. We therefore affirm the district court’s
summary judgment order.
AFFIRMED.
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21-12947 BRASHER , J., Concurring 1
BRASHER, Circuit Judge, concurring in part and concurring in
the result:
I concur in Parts I, II, III, IV.A.2, IV.B, and IV.C. of the ma-
jority opinion. I also concur in the result.
I disagree with Part IV.A.1. In Part IV.A.1, the majority con-
cludes that “the district court erred in failing to recognize the exist-
ence of a genuine issue of material fact as to whether the February
2015 administrative search was focused on ferreting out criminal
wrongdoing or simply inspecting Fryer’s towing business for stat-
utory compliance.” Op. at 17. Because “a jury could conclude that
the purpose of the February 2015 administrative search was to de-
tect evidence of ‘ordinary criminal wrongdoing,’” the majority sug-
gests that the search may have been unconstitutional. Op. at 17.
I disagree with this reasoning in two respects.
First, there are no genuine issues of material fact. Instead,
the key facts are entirely undisputed. Everyone agrees exactly how
the search took place. Whether that search was reasonable under
the Fourth Amendment is a question of law, not a question of fact.
We have held that “[q]uestions regarding the reasonableness of a
search or seizure based on established facts must be decided by the
trial judge and not the jury.” Ziegler v. Martin Cnty. Sch. Dist., 831
F.3d 1309, 1319 (11th Cir. 2016). So the district court was right to
resolve this constitutional question at summary judgment.
Second, I think the district court was correct that this admin-
istrative search was constitutional, even though the police had
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2 BRASHER , J., Concurring 21-12947
good reasons to suspect they would find evidence of crime. I disa-
gree with the majority’s counterintuitive suggestion that an of-
ficer’s high level of suspicion based on a thorough investigation can
render an administrative search unreasonable. Instead, I agree with
Judge Ed Carnes’s concurring opinion in Bruce v. Beary, 498 F.3d
1232 (11th Cir. 2007), that there is no basis to conclude that other-
wise lawful “administrative searches may not be permissible if
there is too much basis for suspecting that evidence of a crime will
be found during the search.” Id. at 1250. See also United States v. Vil-
lamonte–Marquez, 462 U.S. 579 (1983) (rejecting argument that Cus-
toms officers and state police could not inspect a ship because they
had reason to believe it was carrying illegal cargo).
As Judge Carnes explained, “[t]he notion that the permissi-
bility of an administrative search varies inversely with the reason
to believe that the search will uncover evidence of a crime defies
logic and finds no support in the law.” Bruce, 498 F.3d at 1250
(Carnes, J., concurring). “Administrative searches conducted pur-
suant to valid statutory schemes do not violate the Constitution
simply because of the existence of a specific suspicion of wrongdo-
ing.” United States v. Thomas, 973 F.2d 1152, 1155–56 (5th Cir. 1992)
(assessing search of tow yard). We should not follow any “hand-
wringing dicta” in Bruce that suggests otherwise. Bruce, 498 F.3d at
1250 (Carnes, J., concurring).
Although a category of search may be unconstitutional be-
cause it is not justified by a purpose other than looking for evidence
of crime, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000),
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21-12947 BRASHER , J., Concurring 3
a particular administrative search does not become unconstitu-
tional merely because officers initiated that specific search as part of
an effort to uncover evidence of wrongdoing. As the Supreme
Court has explained, when assessing the constitutionality of an ad-
ministrative search, “an inquiry into programmatic purpose is some-
times appropriate,” but “this inquiry is directed at ensuring that the
purpose behind the program is not ultimately indistinguishable
from the general interest in crime control.” Brigham City, Utah v.
Stuart, 547 U.S. 398, 405 (2006) (emphasis added) (internal quota-
tion marks omitted). This inquiry “has nothing to do with discerning
what is in the mind of the individual officer conducting the search.” Id.
See also Edmond, 531 U.S. at 48 (“[W]e caution that the purpose in-
quiry in this context is to be conducted only at the programmatic level
. . .”); Ashcroft v. al-Kidd, 563 U.S. 731, 737 (2011) (“‘programmatic
purpose’ is relevant to Fourth Amendment analysis of programs of
seizures without probable cause”).
To be sure, a particular administrative search is unlawful if
it exceeds the authorized scope of an administrative search. But the
February 2015 search meets this test. An indisputably constitu-
tional Florida law permits administrative searches of tow yards
“during normal business hours” to locate stolen vehicles. Fla. Stat.
§ 812.055. Law enforcement can also inspect records related to title
certificates and liens. Id. That is exactly what the officers did in this
case. They searched the tow yard and records within normal busi-
ness hours hoping to identify any stolen vehicles. Incident to that
administrative search, the police located a supposedly stolen vehi-
cle and some paperwork apparently related to that stolen vehicle.
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4 BRASHER , J., Concurring 21-12947
Several officers conducted the search, they did not brandish their
weapons, and they completed the search in about one hour. The
search was reasonable and constitutional as a matter of law.
For these reasons, I cannot concur in Part IV.A.1.
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