Answer Brief of Appellee, Warren Rollins

Case: 18-10163 Date Filed: 06/22/2018 Page: 1 of 34
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
CASE NO. 18-10163-F

_______________________________
WARREN ROLLINS,
Plaintiff/Appellee,
v.
ALFRED STABILE,
Defendant/Appellant.
____________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF FLORIDA.
HON. WILLIAM P. DIMITROULEAS, DISTRICT JUDGE
________________________________________________
ANSWER BRIEF OF APPELLEE

WARREN ROLLINS
_________________________________
DOUGLAS J. JEFFREY BENEDICT P. KUEHNE

LAW OFFICES OF DOUGLAS MICHAEL T. DAVIS
J. JEFFREY, P.A. KUEHNE DAVIS LAW, P.A.
Counsel for Appellee Warren 100 S.E. 2nd St., Suite 3550
Rollins Miami, FL 33131-2154
Tel: 305.789.5989
Fax: 305.789.5987
Efiling@kuehnelaw.com
Counsel for Appellee Warren
Rollins
CERTIFICATE OF INTERESTED PERSONS
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure
and Eleventh Circuit Rule 26.1-1, appellee Warren Rollins certifies the
following persons and entities may have an interest in this case:
Abbott, Daniel L. (Attorney for defendant City of Hollywood)
Alvarez, Tamatha S. (Attorney for appellant Stabile)
Beckford, Perry (Defendant)
Billbrough, G. Bart (Attorney for appellant Stabile)
Billbrough & Marks, P.A. (Attorney for appellant Stabile)
City of Hollywood (Defendant)
Davis, Michael T. (Lawyer for appellee Rollins)
Dimitrouleas, William P. (District Judge)
Jeffrey, Douglas J. (Attorney for appellee Rollins)
Kuehne, Benedict P. (Lawyer for appellee Rollins)
Kuehne Davis Law, P.A. (Lawyer for appellee Rollins)
Law Offices of Douglas J. Jeffrey, P.A. (Attorney for appellee Rollins)
Martin, Lister & Alvarez, PLC (Attorney for appellant Stabile)
Marks, Geoffrey B. (Attorney for appellant Stabile)
C 1 of 2
Reilly, Anne K. (Attorney for defendant City of Hollywood)
Rollins, Warren (Plaintiff/Appellee)
Sharan, Law Services, P.A. (Attorney for appellee Rollins)
Sharan, Niti S. (Attorney for appellee Rollins)
Stabile, Alfred (Defendant/Appellant)
Weiss Serota Helfman Cole & Bierman, P.A. (Attorney for defendant City
of Hollywood)
C 2 of 2
STATEMENT REGARDING ORAL ARGUMENT
Appellee Warren Rollins welcomes the opportunity to present oral
argument should the Court determine argument would aid the Court’s
consideration of the issues.
i
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ..................................... C1
STATEMENT REGARDING ORAL ARGUMENT ................................... i
TABLE OF CONTENTS ...........................................................................ii
TABLE OF AUTHORITIES ..................................................................... iv
STATEMENT OF JURISDICTION .......................................................... 1
STATEMENT OF THE ISSUES ............................................................... 2
STATEMENT OF THE CASE AND FACTS ............................................ 3
I. Procedural History .................................................................. 3
II. Factual Recitation ................................................................... 4
STANDARD OF REVIEW......................................................................... 6
SUMMARY OF THE ARGUMENT .......................................................... 7
ARGUMENT ............................................................................................. 8
I. THIS COURT LACKS APPELLATE JURISDICTION

OVER A NON-FINAL ORDER DENYING SUMMARY
JUDGMENT ON A STATE-LAW FALSE-
IMPRISONMENT CLAIM. ..................................................... 8
II. THE DISTRICT COURT PROPERLY DENIED

DEFENDANT’S SUMMARY JUDGMENT MOTION. ........ 12
A. Factual Dispute As To Whether There Was

Probable Cause To Conduct A DUI Investigation....... 14
B. Factual Dispute As To Arguable Probable Cause

For An Obstruction of Justice Arrest. ......................... 16
CONCLUSION ........................................................................................ 22
ii
CERTIFICATE OF COMPLIANCE ........................................................ 23
CERTIFICATE OF SERVICE................................................................. 24
iii
TABLE OF AUTHORITIES
Page
Cases
Gray ex rel. Alexander v. Bostic,

458 F.3d 1295 (11th Cir. 2006) ............................................................. 6
Barron v. Fed. Reserve Bank of Atlanta,

129 Fed. Appx. 512 (11th Cir. 2005)..................................................... 6
C.E.L. v. State,
24 So. 3d 1181 (Fla. 2009) ............................................................ 20, 22
Chait v. State,
27 Fla. Supp. 2d 115 (Fla. 11th Cir. 1988) ......................................... 16
Daniel v. Vill. of Royal Palm Beach,

889 So. 2d 988 (Fla. 4th DCA 2004) ................................................... 13
Davis v. Williams,
451 F.3d 759 (11th Cir. 2006) ........................................................... 19*
E.A.B. v. State,
851 So. 2d 308 (Fla. 2d DCA 2003)..................................................... 20
Florida Game & Freshwater Fish Com’n v. Dockery,

676 So. 2d 471 (Fla. 1st DCA 1996).................................................... 13
Georgia State Conference of NAACP v. Fayette County Bd. of

Com’rs,
775 F.3d 1336 (11th Cir. 2015) ............................................................. 6
Hartley v. Parnell,
193 F.3d 1263 (11th Cir. 1999) ........................................................... 10
Hill v. BellSouth Telecommunications, Inc.,

364 F.3d 1308 (11th Cir. 2004) ............................................................. 9
iv
J.G.D. v. State,
724 So. 2d 711 (Fla. 3d DCA 1999)..................................................... 19
Jones v. Cannon,
174 F.3d 1271 (11th Cir. 1999) ........................................................... 11
Kingsland v. City of Miami,

382 F.3d 1220 (11th Cir. 2004) ......................................................... 14*
Lewis v. Morgan,
79 So. 3d 926 (Fla. 1st DCA 2012)...................................................... 13
Mailly v. Jenne,
867 So. 2d 1250 (Fla. 4th DCA 2004) ................................................. 13
Manners v. Cannella,
891 F.3d 959 (11th Cir. 2018) ....................................................... 12, 13
Mathis v. Coats,
24 So. 3d 1284 (Fla. 2d DCA 2010)............................................... 15, 16
Miami-Dade County v. Asad,

78 So. 3d 660 (Fla. 3d DCA 2012)....................................................... 13
Miami-Dade County v. Pozos,

42 Fla. L. Weekly D2063 (Fla. 3d DCA Feb. 15, 2017) ...................... 11
Miller v. City of Jacksonville,

603 So. 2d 1310 (Fla. 1st DCA 1992) .................................................. 13
Montgomery v. State,
69 So. 3d 1023 (Fla. 5th DCA 2011) ................................................... 20
Moton v. Cowart,
631 F.3d 1337 (11th Cir. 2011) ............................................................. 9
Ortega v. Bibb County Sch. Dist.,

397 F.3d 1321 (11th Cir. 2005) ............................................................. 6
v
Peppers v. Coates,
887 F.2d 1493 (11th Cir. 1989) ........................................................... 10
Plumhoff v. Rickard,
134 S. Ct. 2012 (2014) ......................................................................... 10
Ruizdelatorre v. City of Miami Beach,

06-21183-CIV, 2008 WL 5381431 (S.D. Fla. Dec. 22, 2008) ........ 18, 19
Santiago v. State,
133 So. 3d 1159 (Fla. 4th DCA 2014) ................................................. 15
Slydell v. State,
792 So. 2d 667 (Fla. 4th DCA 2001) ................................................... 18
State v. Catalano,
60 So. 3d 1139 (Fla. 2d DCA 2011)..................................................... 20
State v. Kliphouse,
771 So. 2d 16 (Fla. 4th DCA 2000) ..................................................... 15
State v. Kolb,
7 Fla. L. Weekly Supp. 548 (Fla. 12th Jud. Cir. 2000) ...................... 15
State v. Longacre,
2 Fla. L. Weekly Supp. 571 (Fla. 11th Jud. Cir. 1994) ...................... 16
State v. Marshall,
36 Fla. Supp. 2d 34, 35 (Fla. 4th Jud. Cir. 1989) ............................... 16
Tinney v. Shores,
77 F.3d 378 (11th Cir. 1996) ............................................................... 10
White v. State Farm Fire & Cas. Co.,

664 F.3d 860 (11th Cir. 2011) ............................................................... 8
Wilkerson v. State,
556 So. 2d 453 (Fla. 1st DCA 1990).................................................... 18
vi
J.W. ex rel. Williams v. Roper,

541 Fed. Appx. 937 (11th Cir. 2013)..................................................... 9
Willingham v. City of Orlando,

929 So. 2d 43 (Fla. 5th DCA 2006) ..................................................... 13
Statutes
28 U.S.C. § 1291 .................................................................................. 1, 10
28 U.S.C. § 1331 ........................................................................................ 1
42 U.S.C. §1983 ................................................................................. 3, 4, 5
§ 768.28(9), Fla. Stat. .............................................................................. 11
§ 843.02, Fla. Stat. ...................................................................... 17, 18, 19
Other Authorities
First Amendment .................................................................................... 20
Federal Rule of Appellate Procedure 3(c)(1)(B) ........................................ 8
Federal Rule of Appellate Procedure Rule 32(a)(7)(B) ........................... 23
Florida Rule of Appellate Procedure 9.130(3) ........................................ 11
vii
STATEMENT OF JURISDICTION
The district court had jurisdiction. 28 U.S.C. § 1331. As will be more
fully discussed, this Court does not have appellate jurisdiction over the
district court’s order denying summary judgment on the false
imprisonment claim. See 28 U.S.C. § 1291.
1
STATEMENT OF THE ISSUES
I. Does this Court have appellate jurisdiction to review the district

court’s non-final order denying summary judgment on a state-law
claim?
II. Did the district court correctly deny summary judgment on the
false-imprisonment state-law claim, after finding there were
genuine issues of material fact that required jury resolution?
2
STATEMENT OF THE CASE AND FACTS
I. Procedural History
Plaintiff Warren Rollins filed a civil rights complaint with several
related state-law claims (DE1). The complaint contained the following
counts against the City of Hollywood and Officers Alfred Stabile and
Perry Beckford:
• Count I - Battery against Stabile;
• Count II - Assault against Stabile;
• Count III - False Imprisonment against Stabile;
• Count IV - Intentional Infliction of Emotional Distress against

Stabile;
• Count V - 42 U.S.C. §1983 False Imprisonment against Stabile;
• Count VI - 42 U.S.C. §1983 Excessive Force against Stabile;
• Count VII - 42 U.S.C. §1983 Failure to Intervene against Beckford;
• Count VIII – Battery against the City;
• Count IX – Assault against the City;
• Count X – False Imprisonment against the City.
The defendants moved for summary judgment on all counts (DE71,
78). The district court denied summary judgment on all counts, with the
exception of Count VII against Officer Beckford for failure to intervene.
The court concluded as a matter of law that Beckford did not have a
3
reasonable opportunity to intervene (DE125:9).
Stabile filed his notice of appeal, intending to appeal the district
court’s denial of qualified immunity on Counts V and VI, but only
challenged the denial of summary judgment on Count III, false
imprisonment in his initial brief.
II. Factual Recitation
Plaintiff Warren Rollins and his passenger (Reynaldo Clarke) drove
to the M&B grocery store in Hollywood, Florida on September 9, 2012, in
broad daylight (DE92-1, ¶¶ 5-6). Rollins’ vehicle was playing rap music
and Rollins was rapping along with the music (DE89-1:7). On arrival at
the front of the store, Clarke exited the vehicle and entered the store to
purchase groceries while Rollins remained inside the car, which was
parked in a public parking lot (DE92-1, ¶ 5). His music was not loud
(DE92-1, ¶ 7). The sound was midway (Id.)
Defendant Officers Alfred Stabile and Perry Beckford were then
completing an investigatory detention of a dispute between an M&G
grocery store employee and his girlfriend (DE70, ¶6; DE64:3-4;
DE65:134-35). All four were standing right outside the store’s entrance
(DE68-1:45-46). Nothing in the summary judgment record indicates an
4
onlooker would have known the officers were detaining the individuals.
No one was handcuffed. No firearms or tasers were drawn. Nor is there
any evidence of the area being roped off for police investigation. Quite the
opposite. Clarke was freely granted access to the store, walking directly
past Stabile and Beckford (DE92-1, ¶ 7).
As Beckford approached Rollins’ car, Rollins lowered the music
(DE92-1, ¶ 7). Beckford bellowed: “Do we have an f***ing problem?”
Rollins responded boldly yet respectfully: “Excuse me officer, I don’t have
a problem. But if my music was bothering you, you could have just asked
me, and I would have turned it down.” (Id.). Defendant Stabile asked
Rollins to exit the vehicle, which ultimately led to the excessive use of
force at issue in this case. Defendant Beckford “believe[d] Detective
Stabile asked [Mr. Rollins] to step out of the vehicle just based on
[Rollins’] demeanor.” (DE85-1:3-4).
Stabile has since claimed he smelled the odor of marijuana and
alcohol emanating from Rollins’ open window (DE65-1:207). Rollins
denied this, explaining there was no smell of alcohol or marijuana on
Rollins or near the car (DE92-1, ¶ 17). The police ultimately released
Rollins, making no arrest.
5
STANDARD OF REVIEW
“This court reviews de novo the district court's order denying
summary judgment, applying the same standards that governed the
district court's decision.” Ortega v. Bibb County Sch. Dist., 397 F.3d 1321,
1324 (11th Cir. 2005) (citing LaChance v. Duffy’s Draft House, Inc., 146
F.3d 832, 834–35 (11th Cir. 1998)). All issues of material fact are resolved
in the plaintiff’s favor, and all facts are approached from the plaintiff’s
perspective. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1303 (11th
Cir. 2006). “If any fact issues exist a trial judge must not make findings
but is required to deny the motion and proceed to trial.” Georgia State
Conference of NAACP v. Fayette County Bd. of Com'rs, 775 F.3d 1336,
1345 (11th Cir. 2015) (quoting Shook v. United States, 713 F.2d 662, 665
(11th Cir. 1983)). “The court may not weigh evidence to resolve a factual
dispute.” Barron v. Fed. Reserve Bank of Atlanta, 129 Fed. Appx. 512, 515
(11th Cir. 2005).
6
SUMMARY OF THE ARGUMENT
This Court lacks appellate jurisdiction to review the summary
judgment order on the state-law false-imprisonment claim. The operative
notice of appeal does not identify the district court’s denial of summary
judgment on the false imprisonment claim, and this Court does not have
appellate jurisdiction to review non-final orders denying summary
judgment on state-law claims.
Furthermore, the district court properly denied Stabile’s motion for
summary judgment because he lacked probable cause to arrest Rollins
for obstruction of justice and he lacked probable cause to conduct a
driving under the influence (DUI) investigation. A material factual
dispute exists as to whether there was an odor of marijuana or alcohol
exists. Still, as a matter of law, the odor of alcohol does not in and of itself
establish probable cause. Furthermore, playing music in a public parking
lot is not a crime, much less obstruction of justice. Under Florida law,
speech must be accompanied by some physical act to constitute
actionable obstruction of justice. There is no evidence that a physical act
directed toward the police accompanied Rollins’ music.
7
ARGUMENT
I. THIS COURT LACKS APPELLATE JURISDICTION OVER A

NON-FINAL ORDER DENYING SUMMARY JUDGMENT ON
A STATE-LAW, FALSE-IMPRISONMENT CLAIM.
Stabile’s notice of appeal purports to appeal the district court’s
summary judgment order denying qualified immunity (DE128:1). It
states: “Alfred Stabile appeals to the United States Court of Appeals for
the Eleventh Circuit the order denying defendant Alfred Stabile’s motion
for summary judgment on qualified immunity.” (DE128:1). The notice,
however, does not include the district court’s ruling on the false
imprisonment claim, a claim for which Stabile has not sought qualified
immunity in either his answer and affirmative defenses (DE32) or his
motion for summary judgment (DE71:8). Its exclusion from the notice of
appeal bars the exercise of appellate jurisdiction over the ruling.
Federal Rule of Appellate Procedure 3(c)(1)(B) requires the notice
of appeal to “designate the judgment, order, or part thereof being
appealed.” Notwithstanding this Court’s general policy of liberally
construing a notice of appeal, this Court “will not expand [the notice] to
include judgments and orders not specified unless the overriding intent
to appeal these orders is readily apparent on the face of the notice.” White
v. State Farm Fire & Cas. Co., 664 F.3d 860, 863–64 (11th Cir. 2011).
8
“The timely filing of a notice of appeal is a mandatory prerequisite to the
exercise of appellate jurisdiction.” Moton v. Cowart, 631 F.3d 1337, 1341
n. 2 (11th Cir. 2011). Without it, this Court lacks jurisdiction.
In J.W. ex rel. Williams v. Roper, 541 Fed. Appx. 937, 941 (11th Cir.
2013), this Court determined that identical language contained in a
notice of appeal failed to vest this Court with appellate jurisdiction over
a non-final order denying summary judgment on a state-law claim. In
J.W., the “Officers’ Notice of Appeal refers only to that portion of ‘the
Order denying their summary judgment motion on qualified immunity.’”
Id.
Furthermore, the exception for circumstances where “unnoticed
claims or issues are inextricably intertwined with noticed ones,” Hill v.
BellSouth Telecommunications, Inc., 364 F.3d 1308, 1313 (11th Cir.
2004), does not apply because the appellant has not briefed the issue of
his excessive force. The exception is also inapplicable because the false-
imprisonment claim is not inextricably intertwined with the excessive
force claim. “Unlike qualified immunity, [the probable cause affirmative
defense to false imprisonment] does not turn on the existence of a ‘clearly
established’ constitutional right.” J.W., 541 Fed. Appx. at 942. Nor does
9
it require proof of arguable probable cause. It mandates that the officer
have probable cause to effectuate an arrest.
More fundamentally, the order denying summary judgment on a
false imprisonment claim is not an appealable non-final order. See
Peppers v. Coates, 887 F.2d 1493, 1495 (11th Cir. 1989) (“Except in
certain instances, this court is without jurisdiction to hear appeals from
interlocutory orders of the district courts.”). Federal law generally limits
this Court’s jurisdiction to “appeals from all final decisions of the district
courts of the United States.” 28 U.S.C. § 1291. “An order denying a
motion for summary judgment is generally not a final decision within the
meaning of § 1291 and is thus generally not immediately appealable.”
Plumhoff v. Rickard, 134 S. Ct. 2012, 2018–19 (2014) (citing Johnson v.
Jones, 515 U.S. 304, 309 (1995)). “But that general rule does not apply
when the summary judgment motion is based on a claim of qualified
immunity.” Id. This Court has long reasoned: “Because qualified
immunity provides the right not to be burdened by trial, and not simply
a defense to liability, this Court has jurisdiction to review interlocutory
appeals from orders denying summary judgment based on qualified
immunity.” Tinney v. Shores, 77 F.3d 378, 380 (11th Cir. 1996); Hartley
10
v. Parnell, 193 F.3d 1263, 1268 (11th Cir. 1999). Officer Stabile’s initial
brief does not address the order denying summary judgment on qualified
immunity, and Stabile cannot establish an alternative basis for appellate
jurisdiction over the non-final order’s ruling on plaintiff’s state-law
claims.
To be sure, the interlocutory ruling is not even appealable under
Florida procedural law. This Court has looked to Florida procedural rules
in deciding appealability. See Jones v. Cannon, 174 F.3d 1271, 1293 (11th
Cir. 1999).
Florida Rules of Appellate Procedure 9.130(3)(vii), (x), and (xi) at
best allow for the appeal of an order denying immunity as a matter of
law. However, the district court’s order did not deny summary judgment
as a matter of law. It denied summary judgment because there were
genuine issues of material fact as to the events leading to Rollins’ seizure.
Under Florida law, this type of non-final order is not immediately
appealable. See Miami-Dade County v. Pozos, 42 Fla. L. Weekly D2063
(Fla. 3d DCA Feb. 15, 2017) (“Because the trial court did not determine
that, as a matter of law, the County was not entitled to sovereign
immunity or immunity under section 768.28(9), Florida Statutes, the
11
County was not authorized to appeal the trial court's order, and we
therefore dismiss this appeal as one taken from a nonfinal,
nonappealable order.”).
This Court accordingly lacks appellate jurisdiction and should
dismiss the appeal for want of jurisdiction.
II. THE DISTRICT COURT PROPERLY DENIED

DEFENDANT’S SUMMARY JUDGMENT MOTION.
Stabile has not challenged the district court’s finding that genuine
issues of material fact preclude summary judgment on plaintiff’s
excessive force claim. His appeal only seeks exclusion of the state-law,
false imprisonment claim from the upcoming trial. “In Florida, a claim
for false arrest requires the plaintiff to establish three elements: ‘(1) an
unlawful detention and [deprivation] of liberty against the plaintiff’s will;
(2) an unreasonable detention which is not warranted by the
circumstances; and (3) an intentional detention.’” Manners v. Cannella,
891 F.3d 959 (11th Cir. 2018) (quoting Lozman v. City of Riviera Beach,
39 F.Supp.3d 1392, 1409 (S.D. Fla. 2014) (citing Tracton v. City of Miami
Beach, 616 So. 2d 457 (Fla. 3d DCA 1992))).
“The first element—an unlawful detention—cannot be found where
there is probable cause for the arrest.” Id. Like federal law, probable
12
cause for arrest is an affirmative defense. Id. See Willingham v. City of
Orlando, 929 So. 2d 43, 48 (Fla. 5th DCA 2006) (“In a false arrest action,
probable cause is an affirmative defense to be proven by the defendant.”).
However, the arguable probable cause standard applicable to a qualified
immunity analysis does not apply to the state-law affirmative defense of
probable cause. Stabile mistakenly confuses the relevant standard in
arguing he was entitled to summary judgment on his state-law claim
because the police had arguable probable cause for DUI and obstruction
of justice (Initial Br. 25).
In the context of false arrest and false imprisonment, Florida courts
have consistently explained that “probable cause exists when the
circumstances are sufficient to cause a reasonably cautious person to
believe that the person accused is guilty of the offense charged.” Florida
Game & Freshwater Fish Com'n v. Dockery, 676 So. 2d 471, 474 (Fla. 1st
DCA 1996); Lewis v. Morgan, 79 So. 3d 926, 929 (Fla. 1st DCA 2012);
Miami-Dade County v. Asad, 78 So. 3d 660, 670 (Fla. 3d DCA 2012);
Daniel v. Vill. of Royal Palm Beach, 889 So. 2d 988, 990 (Fla. 4th DCA
2004); Mailly v. Jenne, 867 So. 2d 1250, 1251 (Fla. 4th DCA 2004); Miller
v. City of Jacksonville, 603 So. 2d 1310, 1312 (Fla. 1st DCA 1992).
13
The appellee is unaware of any Florida decision finding a defendant
met the burden of proof by establishing “arguable probable cause.” Nor
has the appellant presented such a case. Nonetheless, regardless of the
standard applied, Stabile’s probable cause arguments are meritless.
A. Factual Dispute As To Whether There Was Probable

Cause To Conduct A DUI Investigation.
Stabile first claims the odor of marijuana and alcohol provided
probable cause for a DUI investigation. However, there is a genuine issue
of material fact as to whether an odor of marijuana and alcohol was in
fact emanating from Rollins or his vehicle. Stabile claims he smelled
marijuana and alcohol, while Rollins claims there was no such smell
(DE92-1, ¶ 17). Appellant’s brief ignores this Court’s dispositive decision
in Kingsland v. City of Miami, 382 F.3d 1220, 1227 (11th Cir. 2004),
wherein this Court held that a plaintiff’s denial of signs of intoxication
must be accepted as true at summary judgment. The Court reasoned that
“it is incongruous to expect the plaintiff to prove a negative—the absence
of an odor.” Id. at 1229. This is particularly so given that the officer’s
“allegation that a cannabis odor was present could potentially have been
verified with direct evidence.” Id. On this record, direct evidence does not
confirm Stabile’s claim. No marijuana was found in either the vehicle or
14
on Rollins’ person.
Furthermore, Stabile’s brief ignores basic Florida DUI
jurisprudence, chief of which is that an odor of alcohol does not in and of
itself give the police probable cause to believe a person is driving while
under the influence. See State v. Kliphouse, 771 So. 2d 16, 23 (Fla. 4th
DCA 2000) (explaining that “the presence of an odor of alcohol alone is
generally not considered an accurate and reliable measure of impairment
and, thus, is rarely deemed sufficient for a finding of probable cause”);
Santiago v. State, 133 So. 3d 1159, 1166 (Fla. 4th DCA 2014) (“This court
and others have required more than the odor of alcohol to establish
reasonable suspicion for an investigatory stop.”); Mathis v. Coats, 24 So.
3d 1284, 1288 (Fla. 2d DCA 2010) (“although an odor of alcohol is
significant, it may not be dispositive”). 1
1 Several Florida circuit courts sitting in their appellate capacity

have reached the same conclusion. See State v. Kolb, 7 Fla. L. Weekly
Supp. 548 (Fla. 12th Jud. Cir. 2000) (“It is uncontradicted that odor alone
is evidence of nothing more than the subject had, at some point, ingested
a beverage that may have contained alcohol. Even a trained law
15
Stabile’s partner applied these well-settled principles of law in
opining that he saw no signs of intoxication. According to Officer
Beckford, Rollins did not have slurred speech or glassy eyes (DE84-1:10).
Beckford ultimately concluded: “at that point to me and my experience it
didn't appear that he was intoxicated.” (Id.) Beckford’s testimony does
not just create a factual dispute as to probable cause to conduct a DUI
investigation, but it affirmatively establishes that a reasonably cautious
person would not believe Rollins was guilty or even arguably guilty of
DUI.
B. Factual Dispute As To Probable Cause For An

Obstruction of Justice Arrest.
Stabile alternatively claims he had probable cause because “[t]he
music emanating from Rollins’ vehicle obstructed the officers’
enforcement officer cannot determine how much a person has had to

drink, or when, simply from the odor of alcohol. Certainly, the odor,
without more, is no indication of impairment.”); State v. Longacre, 2 Fla.
L. Weekly Supp. 571 (Fla. 11th Jud. Cir. 1994) (odor of alcohol, without
evidence of impairment, did not establish probable cause for field sobriety
detention); State v. Marshall, 36 Fla. Supp. 2d 34, 35 (Fla. 4th Jud. Cir.
1989) (same); Chait v. State, 27 Fla. Supp. 2d 115 (Fla. 11th Cir. 1988)
(traffic accident and odor of alcohol, without more, did not establish
probable cause for DUI arrest).
16
investigation of the domestic dispute” (Initial Br. 25). This argument was
not presented to the district court and is not preserved for appellate
review. In his motion for summary judgment, Stabile contended he had
probable cause for arrest due to “Rollins’ refusal to turn down the loud
music” when asked to do so by the police (DE71:9-10).
Nonetheless, even if preserved, this alternative claim is equally
unsound. Rollins merely played music in his car, and the music was not
that loud. Upon being approached by the police, he turned the music all
the way down. Nothing in the record indicates that Rollins’ speech was
accompanied by a physical act directed at Officer Stabile’s investigation,
or that it was otherwise evident that the officers were detaining
individuals. According to the evidence in the light most favorable to
Rollins, the police had completed their investigation and were merely
waiting for the results of the detainee’s warrant check (DE89-1:7, DE83-
1:2). Stabile’s argument ignores binding case law from this Court, as well
as Florida case law, establishing these facts do not establish probable
cause.
Section 843.02 provides that “Whoever shall resist, obstruct, or
oppose any officer . . . in the lawful execution of any legal duty, without
17
offering or doing violence to the person of the officer, shall be guilty of a
misdemeanor of the first degree . . . .” “For a conviction for resisting an
officer without violence under section 843.02, Florida Statutes, the state
must show that: (1) the officer was engaged in the lawful execution of a
legal duty; and (2) the action by the defendant constituted obstruction or
resistance of the lawful duty.” Slydell v. State, 792 So. 2d 667, 671 (Fla.
4th DCA 2001).
As early as 1990, Florida courts described the narrow application of
the term “obstruct:” “We have no doubt that the use of ‘oppose’ in
conjunction with ‘obstruct’ manifests a clear and unambiguous intent to
proscribe only acts or conduct that operate to physically oppose an officer
in the performance of lawful duties.” Wilkerson v. State, 556 So. 2d 453,
455-56 (Fla. 1st DCA 1990). When speech is involved, the reviewing court
requires that “physical acts or conduct [be] accompan[ied] [by] verbal
protests or offensive words to support a conviction under section 843.02.”
Ruizdelatorre v. City of Miami Beach, 06-21183-CIV, 2008 WL 5381431,
at *9 (S.D. Fla. Dec. 22, 2008).
When Stabile encountered Rollins, it was clearly established law
that “an objective officer does not have arguable probable cause to arrest
18
a suspect for obstruction without some physical act that interferes with
or obstructs the officer's actions.” Id. (citing Davis v. Williams, 451 F.3d
759, 766–67 (11th Cir. 2006)). In Davis, this Court, surveying Florida
law, determined that “Florida courts have generally held, with very
limited exceptions, that physical conduct must accompany offensive
words to support a conviction under § 843.02.” 451 F.3d at 765 (emphasis
added). The Davis Court concluded that yelling at an officer and asking
the officer to leave plaintiff’s property did not give the officer arguable
probable cause for obstruction of justice. Likewise, in J.G.D. v. State, 724
So. 2d 711, 711–12 (Fla. 3d DCA 1999), the court found insufficient
evidence of obstruction of justice when the defendant, in response to the
police directive to leave an apartment complex, protested loudly and
profanely, sparking an unruly crowd to gather.
The facts of this case are virtually identical to Davis and J.G.D.
Rollins did not physically obstruct the police investigation, and Rollins’
decision to play music in the presence of the police did not provide
probable cause. Music is treated no differently than words, and both are
First Amendment-protected speech. To be sure, by the time of Stabile’s
encounter with Rollins, the Florida courts had already ruled that
19
Florida’s vehicle noise statute, criminalizing plainly audible music, was
unconstitutional because it violated Floridians’ First Amendment rights.
State v. Catalano, 60 So. 3d 1139, 1146 (Fla. 2d DCA 2011). Courts
reasoned that “music, including amplified music, is protected under the
First Amendment.” Montgomery v. State, 69 So. 3d 1023, 1030 (Fla. 5th
DCA 2011); Catalano, 60 So. 3d at 1146. The heart of Stabile’s argument,
that Rollins and other citizens who play audible music in the presence of
the police are subject to arrest, is simply not reflective of Florida law.
Moreover, the officers had no reason to believe Rollins knew the
police were engaged in the lawful execution of a legal duty. In the context
of unprovoked flight, Florida courts have required proof that “the
defendant fled from the officer with knowledge of the officer’s intent to
detain him and that the officer was justified in making the detention
based on a founded suspicion that the defendant was engaged in criminal
activity.” E.A.B. v. State, 851 So. 2d 308, 311 (Fla. 2d DCA 2003); C.E.L.
v. State, 24 So. 3d 1181, 1186 (Fla. 2009) (“To be guilty of unlawfully
resisting an officer, an individual who flees must know of the officer’s
intent to detain him, and the officer must be justified in making the stop
at the point when the command to stop is issued.”).
20
Applied to the facts of this case, there was no probable cause to
arrest Rollins for obstruction of justice in the absence of evidence
demonstrating Rollins knew or should have known the police were
lawfully detaining someone. Nothing in the summary judgment record
indicates an onlooker would have known the officers were detaining
someone. No one was handcuffed. No firearms or tasers were drawn. Nor
is there any evidence of the area being roped off for police investigation.
Quite the opposite. Clarke was freely granted access to the store, as he
walked past Stabile and Beckford (DE92-1, ¶ 7); and as the City of
Hollywood’s Internal Affairs report indicates, the police investigation
was complete when Rollins drove his vehicle into the parking lot
(DE83.1:2). But regardless of the status of the investigation, Stabile is
hard-pressed to argue that the law requires Floridians to turn down their
music when in police presence, just in case the police are engaged in the
lawful execution of their legal duties, or risk being detained and arrested.
Finally, Stabile’s argument ignores that even if playing loud music
alone could constitute obstruction of justice, a factual dispute exists here.
Stabile claims the music was so loud the officers had to yell at the
detainees during the investigation (DE66:9; DE70, ¶ 9). But Rollins
21
denies this (DE95, ¶ 9). According to his deposition and affidavit, the
music was “not very loud.” (DE92-1, ¶ 7). It was being played midway
(Id.). Stabile’s detainee similarly testified the music was “not really” loud
(DE89-1:7). This factual dispute as to the volume of the music must be
resolved by a jury.
The district court accordingly correctly denied the defense motion
for summary judgment on the state-law claim for false imprisonment.
CONCLUSION
This Court lacks appellate jurisdiction over the order denying
summary judgment on plaintiff’s state law claim. Notwithstanding, the
district court properly concluded that genuine issues of material fact
prevented summary judgment. This Court should accordingly affirm and
remand for this claim to be tried with the other eight claims.
22
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation in Rule
32(a)(7)(B) of the Federal Rules of Appellate Procedure. This brief is
printed in Century Schoolbook 14-point font and contains 4,208 words,
as counted by MS Word.
Respectfully submitted,
S/ Douglas J. Jeffrey, Esq. S/ Benedict P. Kuehne

DOUGLAS J. JEFFREY BENEDICT P. KUEHNE
Fla. Bar No. 149527 Florida Bar No. 233293
LAW OFFICES OF DOUGLAS MICHAEL T. DAVIS
J. JEFFREY, P.A. Florida Bar No. 63374
6625 Miami Lakes Drive East, KUEHNE DAVIS LAW, P.A.
Suite 379 100 S.E. 2nd St., Suite 3550
Miami Lakes, Florida 33014 Miami, FL 33131-2154
Tel: 305.828.4744 Tel: 305.789.5989
Fax: 305.828.4718 Fax: 305.789.5987
dj@jeffreylawfirm.com ben.kuehne@kuehnelaw.com
Counsel for Appellee Warren efiling@kuehnelaw.com
Rollins Counsel for Appellee Warren
Rollins
23
CERTIFICATE OF SERVICE
I CERTIFY on June 22, 2018, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify the
foregoing document is being served this day on all counsel of record either
via transmission of Notices of Electronic Filing generated by CM/ECF or
in another authorized manner for those counsel or parties not authorized
to receive electronically Notices of Electronic Filing.
By: S/ Benedict P. Kuehne

BENEDICT P. KUEHNE
24

Answer Brief of Appellee, Warren Rollins

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Answer Brief of Appellee, Warren Rollins

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Case: 18-10163 Date Filed: 06/22/2018 Page: 1 of 34

UNITED STATES COURT OF APPEALS

CASE NO. 18-10163-F

ON APPEAL FROM THE UNITED STATES DISTRICT

ANSWER BRIEF OF APPELLEE

DOUGLAS J. JEFFREY BENEDICT P. KUEHNE

CERTIFICATE OF INTERESTED PERSONS

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure

following persons and entities may have an interest in this case:

Abbott, Daniel L. (Attorney for defendant City of Hollywood)

Alvarez, Tamatha S. (Attorney for appellant Stabile)

Beckford, Perry (Defendant)

Billbrough, G. Bart (Attorney for appellant Stabile)

Billbrough & Marks, P.A. (Attorney for appellant Stabile)

City of Hollywood (Defendant)

Davis, Michael T. (Lawyer for appellee Rollins)

Dimitrouleas, William P. (District Judge)

Jeffrey, Douglas J. (Attorney for appellee Rollins)

Kuehne, Benedict P. (Lawyer for appellee Rollins)

Kuehne Davis Law, P.A. (Lawyer for appellee Rollins)

Law Offices of Douglas J. Jeffrey, P.A. (Attorney for appellee Rollins)

Martin, Lister & Alvarez, PLC (Attorney for appellant Stabile)

Marks, Geoffrey B. (Attorney for appellant Stabile)

Reilly, Anne K. (Attorney for defendant City of Hollywood)

Rollins, Warren (Plaintiff/Appellee)

Sharan, Law Services, P.A. (Attorney for appellee Rollins)

Sharan, Niti S. (Attorney for appellee Rollins)

Stabile, Alfred (Defendant/Appellant)

STATEMENT REGARDING ORAL ARGUMENT

Appellee Warren Rollins welcomes the opportunity to present oral

consideration of the issues.

CERTIFICATE OF INTERESTED PERSONS ..................................... C1

STATEMENT REGARDING ORAL ARGUMENT ................................... i

TABLE OF CONTENTS ...........................................................................ii

TABLE OF AUTHORITIES ..................................................................... iv

STATEMENT OF JURISDICTION .......................................................... 1

STATEMENT OF THE ISSUES ............................................................... 2

STATEMENT OF THE CASE AND FACTS ............................................ 3

I. Procedural History .................................................................. 3

II. Factual Recitation ................................................................... 4

SUMMARY OF THE ARGUMENT .......................................................... 7

I. THIS COURT LACKS APPELLATE JURISDICTION

II. THE DISTRICT COURT PROPERLY DENIED

A. Factual Dispute As To Whether There Was

B. Factual Dispute As To Arguable Probable Cause

CERTIFICATE OF COMPLIANCE ........................................................ 23

Gray ex rel. Alexander v. Bostic,

Barron v. Fed. Reserve Bank of Atlanta,

Daniel v. Vill. of Royal Palm Beach,

Florida Game & Freshwater Fish Com’n v. Dockery,

Georgia State Conference of NAACP v. Fayette County Bd. of

Hill v. BellSouth Telecommunications, Inc.,

Kingsland v. City of Miami,

Miami-Dade County v. Asad,

Miami-Dade County v. Pozos,

Miller v. City of Jacksonville,

Ortega v. Bibb County Sch. Dist.,

Ruizdelatorre v. City of Miami Beach,

White v. State Farm Fire & Cas. Co.,

J.W. ex rel. Williams v. Roper,

Willingham v. City of Orlando,

28 U.S.C. § 1291 .................................................................................. 1, 10

28 U.S.C. § 1331 ........................................................................................ 1

42 U.S.C. §1983 ................................................................................. 3, 4, 5