White v. Martin

Plaintiff sued defendants, sheriff’s deputies, for false arrest and imprisonment alleging wrongful arrest without a warrant on suspicion of burglary; defendants claim they had probable cause to arrest plaintiff. The matter was heard before a jury; at the end of plaintiff’s ease the lower court granted defendants ’ motion for nonsuit. Appeal is from the order.

While plaintiff has seen fit to include in the record before us only a reporter’s partial transcript, it is apparent that it and the exhibits reflect substantially all of the evidence received at the trial; moreover, appellant has not pointed out wherein any of his testimony not before us creates a factual conflict on the issue of probable cause. Plaintiff’s case consists of his own testimony, a tape recording made (unknown to defendants) by plaintiff of all conversation between him and defendants leading up to his arrest (pl. ’s ex. 4), and the testimony of both defendants under section 2055, Code of Civil Procedure. Careful consideration of the transcript, the exhibits and tape recording (which we have heard) reveals no substantial conflict in the evidence relative to probable cause. Defendants’ testimony of their conduct, knowledge and beliefs and the circumstances at the time of their entry on plaintiff’s premises stands uncontradicted; and nowhere in plaintiff’s testimony or the tape recording is there any substantial conflict with defendants’ testimony concerning what occurred on the premises just prior to and at the time of plaintiff’s arrest. Thus, here controlling is the rule that “Where the evidence material to the issue of probable cause is without substantial conflict, it is a question of law for the court to decide whether there was probable cause for arrest. (Co verstone v. Davies, 38 Cal.2d 315 [ 239 P.2d 876 ] ; Collyer v. S. H. Kress & Co., 5 Cal.2d 175 [ 54 P.2d 20 ] ; Gibson v. J. C. Penney Co., Inc., 165 Cal.App.2d 640 [ 331 P.2d 1057 ].)’’ (Cole v. Johnson, 197 Cal.App.2d 788 , 793 [ 17 Cal.Rptr. 664 ].) Therefore, inasmuch as probable cause constitutes a good and proper defense in a case of this kind (Collyer v. S. H. Kress & Co., 5 Cal.2d 175 [ 54 P.2d 20 ]) and the existence of probable cause is herein a question of law (Aitken v. White, 93 Cal.App.2d 134 [ 208 P.2d 788 ]), it must be conceded that if the evidence demonstrates probable cause for plaintiff’s arrest, nonsuit was properly granted.

Defendants Harre and Martin are deputy sheriffs working out of the Norwalk substation. Prior to May 27, 1960, neither deputy knew plaintiff or recalled ever having seen, contacted, or heard of him. While Harre had, three weeks previously, issued a routine traffic citation to plaintiff (pl.’s ex. 8) and remembered looking in the automobile “for containment of the vehicle” and seeing a male form, he neither saw nor talked with plaintiff nor had any personal contact with him; his then partner, Deputy Omohundro, walked up to the driver’s side of the vehicle and talked with plaintiff but Harre remained at the right rear of the radio car where he wrote the citation, recording thereon plaintiff’s name, physical description and address from plaintiff’s driver’s license and other information brought back to him by Omohundro ; and although on May 27 a subpoena for Harre’s appearance in the Downey Municipal Court in plaintiff’s traffic case lay in his box at the sheriff’s station, in the early morning of that day when plaintiff was arrested Harre was unaware of the subpoena, that he had been subpoenaed, or that plaintiff was the same as the person for whom he had written the citation on May 2 (he did not discover this until later in the morning of May 27 after plaintiff’s arrest). Martin, not having been with Harre and Omohundro on May 2, had never seen or heard of plaintiff.

Around midnight on May 27, 1960, Harre and Martin started on general routine patrol in a sheriff’s radio patrol car in the area of Orange and San Antonio Drive in Norwalk. The night was clear and warm. Between 4 and 5 a.m., as they passed a dark office located at 14009 San Antonio Drive, both “simultaneously” observed through a window facing San Antonio Drive “a flare of light from within,” described by both as “characteristic” of, and as if “a match was being struck.” It was a light, not a flicker; it went out almost immediately. Both deputies knew from official reports and a crime pin map on the wall at the station that for some months prior, the

Paced with the foregoing, the deputies stopped “to cheek the building” and “for the purpose of investigation.” Martin backed up and parked in front; although other vehicles were parked in the vicinity, neither deputy noticed any particular automobile. Harre ran to the front of the building and Martin started around the north side to the rear. Harre approached the front window out of which he had observed the flare of light; it was dark inside, but upon seeing movement of a figure cross the window he looked in through the Venetian blind. He saw nothing, but immediately a “blinding flash of light” from within burst “right in his face” causing him temporary blindness. “Startled” and not knowing what it was, he “instinctively” reached for the door and turned the handle; it opened, but he heard nothing. As he stepped inside a light suddenly went on and plaintiff was standing to the right of the door with his hand on the knob; plaintiff had turned on the light. He also had opened the door but neither deputy knew this. Plaintiff wore a sport shirt, slacks, shoes and a camera on a strap slung over his shoulder.

Meanwhile, Martin, midway to the rear, saw the light flash in Harre’s face; he ran to the front and as he passed a window saw a light come on inside and plaintiff standing with his left hand on the light switch and his right hand on the door knob. Neither deputy had “any idea” what the flash of light was. Plaintiff had heard a noise, looked out the window, saw a face and took a picture of Harre’s face at the window with his camera; he at no time told the deputies what he had done and, when asked by them what the flash was, retorted, “That is my business.” The deputies did not connect the flash of light with a photograph, nor did they know what it was.

By the time Martin got to the front, the door was open and Harre was asking plaintiff what he was doing “in this office at this hour of the morning,” and for his identifica

Ten or twelve separate times the deputies asked plaintiff for identification, but at no time did he ever tell them his name or give them anything to establish his identity, although at all times he had on his person a wallet containing his driver’s license. Plaintiff appeared to be “very apprehensive and very nervous,” he “seemed to be anticipating something, he was very fidgety, looking around the room” and “was unsettled for some reason.” The deputies, during the entire time, knew neither plaintiff’s identity, to whom the office belonged, nor his business there. About these matters they repeatedly questioned plaintiff; at one phase he refused to answer their questions and when he did, there was “quite a delay” and “he seemed quite nervous.” After having been asked for his identification and what he was doing there, plaintiff said, “What’s the trouble,” but when again asked to identify himself he responded only by reciting “2388” and “293,” badge numbers of the deputies. At one point plaintiff informed them he didn’t have to show identification, but when the deputies told him they didn’t know who he was he answered, “What if I don’t choose to show it in my own

The tape (pl.’s ex. 4) recorded the entire conversation between plaintiff and the deputies. In addition to the 10 or 12 times they asked plaintiff for identification and plaintiff’s repeated refusal to identify himself and explain his presence there, the tape reveals an evasive, arrogant and uncooperative attitude on his part; on the other hand it establishes the patience, restraint and courtesy with which the deputies treated him and that several times they actually begged him to identify himself so they could be on their way.

We conclude from the evidence before us, as did the lower court, that the deputies, when they arrested plaintiff, were presented with such a set of circumstances as would lead an ordinary man of care and prudence to believe and to conscientiously entertain a strong suspicion, even though there may have been some room for doubt, that plaintiff was in the process of committing a burglary. Concerning their beliefs and state of mind at that time, Deputy Martin testified that the possibility that plaintiff was burglarizing “this place” entered their minds and the reason he was arrested was because they could not ascertain his legal business in that location, he refused to identify himself, they had no idea to whom the office belonged and at that hour of the morning they had “no other course of action.” He further testified that they arrested plaintiff because they “thought he was a possible burglar, because he refused to identify himself, ’ ’ and that it was their opinion that he was a possible burglary suspect based on their uncertainty that he even belonged in the area, he was on the premises, he would not identify himself as belonging there, and “any one that was in there and did not belong would be a burglary suspect.” Deputy Harre, when first asked when after he opened the door he was convinced he had a “possible burglary suspect,” testified he “never really was convinced.” He said he was trying “to ascertain that point” by asking plaintiff to produce identification; he further stated that while on the premisies it “did run through” his mind that plaintiff was a possible burglary suspect but it was not conclusive for they were still trying to identify him; that after repeatedly asking plaintiff for identification he “could find no plausible reason why the man would not identify himself, and on this premise” he began “think

Inasmuch as the deputies had no warrant, their authority to arrest plaintiff is derived from section 836, Penal Code. Thus, if defendants had reasonable cause to believe plaintiff had committed a public offense in their presence (§ 836, subd. 1), or had committed a felony, whether or not a felony had in fact been committed (§ 836, subd. 3), they were justified in arresting him.

There being no formula for its determination, what constitutes “reasonable cause” depends upon the facts and circumstances of each case (Go-Bart Importing Co. v. United States, 282 U.S. 344 [ 51 S.Ct. 153 , 75 L.Ed. 374 ]; People v. Ingle, 53 Cal.2d 407 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ])—the situation presented or apparent to the officers at the time they ivere required to act. (People v. Evans, 175 Cal.App.2d 274 [ 345 P.2d 947 ]; People v. Silvestri, 150 Cal.App.2d 114 [ 309 P.2d 871 ]; People v. Carella, 191 Cal.App.2d 115 [ 12 Cal.Rptr. 446 ]; People v. Kilvington, 104 Cal. 86 [ 37 P. 799 , 43 Am.St.Rep. 73 ].) “Reasonable cause has been defined by our California Supreme Court as such a state of facts as Avould lead a man of ordinary care and prudence to believe, or entertain an honest, strong suspicion, that the person in question is guilty of a crime. (People v. Kilvington, 104 Cal. 86 [ 37 P. 799 , 43 Am.St.Rep. 73 ].) ” (People v. West, 144 Cal.App.2d 214 , 219 [ 300 P.2d 729 ].) Probable cause is a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true. (People v. Brite, 9 Cal.2d 666 [ 72 P.2d 122 ]; Bompensiero v. Superior Court, 44 Cal.2d 178 [ 281 P.2d 250 ].) The court in People v. Ingle, 53 Cal.2d 407 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ], further defines it “. . . as having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt. (People v. Nagle, 25 Cal.2d 216 , 222 [ 153 P.2d 344 ]; People v. Novell, 54 Cal.App.2d 621 , 623-624 [ 139 P.2d 453 ] ; Ex parte Heacock, 8 Cal.App. 420 , 421 [ 97 P. 77 ].)” (p. 413) ; and again at page 414: “Unless it can be said that

Thus, the existence of probable cause is “to be decided in accordance with the circumstances at the time of the detention, unhampered by the outcome of the charge against the plaintiff of the public offense or by the conclusions of the trial court. [Citations.]” (Collyer v. S. H. Kress & Co., 5 Cal.2d 175 , 181 [ 54 P.2d 20 ].) Keeping in mind this rule, we are of the opinion that the deputies had probable cause to arrest plaintiff. They were highly suspicious circumstances that confronted the deputies at that time. Ordinarily one does not stand around alone in a dark office full of expensive electrical apparatus at 4:30 in the morning with a camera slung over his shoulder and, to proper questions put by officers, refuse to identify himself or explain his business there. Defendants, experienced law enforcement officers, knew of the high burglary rate in that area; it was between 4 and 5 o’clock in the morning, a time when persons seldom have legitimate business in an office, when they saw what they thought to be a match being struck; suspicious, they stopped to investigate and did so in the regular routine manner of all law enforcement officers; one deputy, who saw a figure move inside was met with a sudden blinding flash of light when he looked in the window, presenting a most unusual situation; not knowing what the flash was the deputies entered the premises which constituted not a home but a business office in which there appeared to be expensive electrical equipment; plaintiff was dressed in shirt, slacks and shoes, not unusual for outdoors on a warm night, and wore a camera over his shoulder, more than usual for one moving about in his own home; the office was untidy and papers were strewn around and plaintiff appeared to be nervous, fidgety and apprehensive and kept looking about the room; in response to what he was doing there at that time of the morning, plaintiff said he had run a movie and tape, but while the officers noticed a screen, no film was being run and they recalled seeing no projector or recorder, and plaintiff offered no further explanation; they asked plaintiff 10 or 12 separate times for his identification, explaining that there had been numerous burglaries in that area, they did not know who he was or his business there or to whom the office belonged, and that identi

At the outset the deputies were completely justified in stopping to “check” or “investigate” when they saw a flare of light on the premises; they had a right, indeed a duty, to determine if anyone was in the office at that hour of the morning and if so, what he was doing there. And during such investigation, especially at night, there is nothing unreasonable or improper in the deputies making further inquiry and entering the premises (People v. Contreras, 211 Cal.App. 2d 641 [ 27 Cal.Rptr. 619 ]) and seeking an interview with a suspect or questioning him (People v. Zavaleta, 182 Cal.App.2d 422 [ 6 Cal.Rptr. 166 ]; People v. Davis, 188 Cal.App.2d 718 [ 10 Cal.Rptr. 610 ]; People v. Jaurequi, 142 Cal.App.2d 555 [ 298 P.2d 896 ]; People v. West, 144 Cal.App.2d 214 [ 300 P.2d 729 ]), even in his own home (People v. Michael, 45 Cal.2d 751 [ 290 P.2d 852 ]; People v. Burke, 47 Cal.2d 45 [ 301 P.2d 241 ]; People v. Sanchez, 191 Cal.App.2d 783 [ 12 Cal.Rptr. 906 ]); and when, as here, response to reasonable inquiry elicits evidence that would lead the deputies to believe he may be committing or has committed a burglary, especially where they had reports of numerous burglaries in the area, their conduct is not unreasonable. (People v. Simon,

Appellant’s critical appraisal of the deputies and his defense of his own conduct and attitude show slight appreciation of the duties and responsibilities the deputies, as guardians of the peace and security of the community, have to properly and effectively protect persons and property in the area from assaults in the night, and the dangers and difficulties that beset them in maintaining law and order and preventing the commission of crime. “It is for the performance of these duties that police officers are commissioned and paid by the community. ...” (Christal v. Police Commission, 33 Cal.App.2d 564 , 567 [ 92 P.2d 416 ].) Plaintiff’s conduct and attitude not only seriously hampered the deputies in the reasonable performance of their duties, but actually created much of the circumstances that led them, as reasonable persons, to believe that he was on the premises with intent to commit theft or other felony. (Pen. Code, §§ 459, 460.) Had he supplied the deputies with his driver’s license then on his person, he could have avoided the entire episode.

While a business card was once briefly mentioned by plaintiff, although never offered to the deputies, for obvious reasons it would not have constituted sufficient identification; nor need officers unqualifiedly accept a suspect’s bare statement, “I live here,” particularly when the premises constitute an office, otherwise every investigation of one found in the act of burglarizing premises would be defeated simply by such a statement. Why plaintiff refused to identify himself does not appear in the record before us. If he was under a miscon

Nor does the record show that the physical aspect of either plaintiff’s arrest or detention was unreasonable. The deputies were courteous and restrained in their conduct toward plaintiff; they took pains to explain to him that they were only doing their “job” and would have to take him to the station if he would not identify himself and, he still refusing to do so, then told him why they were arresting him. The officers acted with propriety; they were polite and courteous and used no loud, angry or obscene language, or force or violence. Several photographs show a sore on an arm (which we assume to be plaintiff’s) but the record is silent concerning them; the record also fails to show that the deputies hurt plaintiff, in fact, to the contrary, reveals that they did not tighten the manacles and left room for a finger between plaintiff’s arm and the edge of the handcuff and that he at no time complained of the handcuffs or how they were put on. The evidence discloses that when they put the handcuffs on plaintiff he lunged forward away from them; the only reasonable conclusion we can reach from the state of the record is that then the abrasion occurred. Plaintiff was in the station no more than 15 minutes and then released; the deputies drove him home, Harre apologized for the inconvenience, and Martin gained entrance to the locked premises to admit plaintiff. Under the circumstances we can only conclude that plaintiff was treated with courtesy and consideration.

For the foregoing reasons the judgment is affirmed.

Wood, P. J., and Fourt, J., concurred.

A petition for a rehearing was denied May 24, 1963, and appellant’s petition for a hearing by the Supreme Court was denied June 26, 1963.