Cullison v. City of Peoria

• Decision Date: 15 September 1978
• Docket Number: No. 13160,13160
• Citation: 584 P.2d 1156,120 Ariz. 165
• Parties: Richard A. CULLISON, Appellant, v. CITY OF PEORIA, a body politic, Louis H. Johnson, Appellees.
• Court: Arizona Supreme Court

Page 1156

584 P.2d 1156

120 Ariz. 165

Richard A. CULLISON, Appellant, v. CITY OF PEORIA, a body politic, Louis H. Johnson, Appellees.

No. 13160.

Supreme Court of Arizona, In Division.

Sept. 15, 1978.

Charles Christakis, Phoenix, for appellant.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by John H. Killingsworth and Ben C. Thomas, Phoenix, for appellees.

HOLOHAN, Justice.

This case involves an appeal by Richard A. Cullison (plaintiff-appellant) from the granting of a summary judgment in favor of the City of Peoria, et al., defendants-appellees, by the Superior Court. We have jurisdiction of this case under 17A A.R.S.Sup.Ct.Rules, rule 47(e)(5).

During the early morning hours of March 11, 1974, the Peoria Police Department received a report of an armed robbery that had taken place at a U-Totem store located at 84th Avenue and Grand Avenue in Peoria. The manager of the store had been assaulted with an iron pipe during the robbery and was subsequently taken to the hospital. Later that day she was interviewed by an officer of the Peoria Police Department at which time she described her assailant as being a white male in his early twenties between five feet eight and five feet nine inches tall and approximately 160 to 165 pounds. She told the police that she distinctly remembered that the assailant was wearing pink pants, a white belt and a khaki shirt. The store manager also said that during a brief conversation with her assailant the attacker told her that he had been a dispatcher for the El Mirage Police Department. The investigating officer, after talking to the nurse on duty, confirmed the fact that the victim's mental condition was good and that her eyesight, memory and reasoning were normal at the time he took the information.

Subsequently the investigating officer checked with the El Mirage Police Department and found that there were two individuals who fit the description given him by the victim. One individual was the plaintiff-appellant Richard Cullison, who was not employed at El Mirage at the time of the incident. The El Mirage police dispatcher specifically remembered that he had seen Cullison wearing pink pants and a white belt on at least one prior occasion.

Although eight photographs, including one of Richard Cullison, were submitted to the victim in the hospital, she was unable to make any positive identification of the assailant at that time.

On March 25, 1974, the Maricopa County Sheriff's Department issued a summons for Cullison to appear for identification purposes at a lineup the following day. At the lineup, the victim positively identified Cullison as the assailant. As a result of this identification, Cullison was detained in the Peoria City Jail while Chief Johnson took the victim to the County Attorney's office for the purpose of having her sign a formal complaint. Upon the filing of the complaint, Justice of the Peace John Snure issued a warrant for Cullison's arrest. Cullison was thereafter brought before Judge Snure for a preliminary hearing. At the preliminary hearing, sufficient probable cause was found to mandate the binding over of Cullison for trial. Accordingly, Cullison was charged with the crime and released after he posted bond.

Subsequently, another individual confessed to having committed the crime, and the charges were dropped against Cullison at that time.

Nearly one year later, on February 26, 1975, Cullison brought this action against the City of Peoria, Police Chief Louis H. Johnson, the store manager, and U-Totem Markets of Arizona, Inc. The complaint set forth causes of action against all defendants for false imprisonment, malicious prosecution, defamation and gross negligence. On April 29, 1976, the trial court granted Defendants City of Peoria and Louis Johnson's motion for summary judgment as to all counts, specifically holding that no just cause existed for delay, thus bringing the decision within the ambit of 16 A.R.S. Rules of Civil Procedure, rule 54(b). This appeal followed.

I. GROSS NEGLIGENCE

Plaintiff has contended that the defendants were guilty of gross negligence in arresting him for the crime of armed robbery and in thereby causing him to be imprisoned. To sustain his position the plaintiff has to show that there was a fact question on the issue of gross negligence. Ordinarily the police may rely on information received from an informant shown to be reliable and trustworthy to establish probable cause for arrest. Ker v. California, 374 U.S. 23, 34-35, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726, 739 (1963); State v. Pederson, 102 Ariz. 60, 62, 424 P.2d 810, 812 (1967).

In order for the plaintiff to raise sufficient material facts to rebut the defendants' motion for summary judgment, he was required to show that the conduct of the police was outside the duty and standard of care required of them in that they had reason to believe that the information on which they based their arrest, the eyewitness identification, was not trustworthy.

During his deposition the appellant advanced his belief, based upon his own perceptions, and apparently upon hearsay from other individuals, that the mental state of the victim was less than competent before and at the time of the identification. Police Chief Johnson at his deposition, stated that his perception of the victim's emotional condition, based upon his own personal past experience with her, was that such condition was very stable. The appellant's offered hearsay, speculation and opinion do not constitute competent evidence to rebut the fact that the police action was based upon their belief that the testimony of the eyewitness was reliable. ¹ It is well established that the opponent of a motion for summary judgment does not raise an issue of fact by merely stating in the record that an issue of fact exists, but rather he must show that competent evidence is available which will justify a trial on that issue. Hearsay or speculation is not competent evidence. Schock v. Jacka, 105 Ariz. 131, 460 P.2d 185 (1969); Crocker v. Crocker, 103 Ariz. 497, 446 P.2d 226 (1968); Masden v. Fisk, 5 Ariz.App. 65, 423 P.2d 141 (1967).

Chief Johnson's uncontroverted affidavit recites the fact that the victim identified Cullison as the perpetrator of the armed robbery after two separate lineups were held. The importance of accuracy in identification was strongly stressed to her. It was only after she gave assurances to the police present that she was certain Cullison was in fact the assailant that she was taken to the County Attorney where she signed a complaint against Cullison. After the complaint was signed, the police appeared before Justice of the Peace John J. Snure where they obtained a warrant for Cullison's arrest. Following his arrest appellant was taken before Justice of the Peace Snure for a preliminary hearing at which time the magistrate determined that sufficient probable cause existed to hold Cullison for the crime as charged.

Based upon the record in this case, we believe that the identification of the eyewitness provided the police with sufficient probable cause upon which to make their arrest. It is the function of a police officer to appraise the type and nature of the offense charged, the substance and apparent reliability of the complaint made to him, and the identity of and knowledge possessed by the complainant, together with other relevant facts and circumstances. Morrison v. United States, 491 F.2d 344, 346 (8th Cir. 1974).

Probable cause, by its very nature, implies the use of probabilities. For such determination there can be no formula, because each case is decided on its own facts and circumstances. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374, 382 (1931). Moreover, when the police make an arrest based upon probable cause, it is not material that the person arrested may turn out to be innocent, and the arresting officer is not required to conduct a trial before determining whether or not to make the arrest. Linn v. Garcia, 531 F.2d 855, 861 (8th Cir. 1976); Morrison v. United States, 491 F.2d 344, 346 (8th Cir. 1974); Lathers v. United States, 396 F.2d 524, 531-32 (5th Cir. 1968).

Whether a given state of facts constitutes probable cause is always a question of law to be determined by the court. Slade v. City of Phoenix,112 Ariz. 298, 541 P.2d 550 (1975); Murphy v. Russell, 40 Ariz. 109, 9 P.2d 1020 (1932). In this case, the issue of probable cause was in fact determined by the magistrate at the preliminary hearing. ²

We find no evidence of any material fact presented by the plaintiff in this record to suggest that the police in any way departed from the standard of care mandated by the United States and Arizona Constitutions, or the Arizona Rules of Criminal Procedure before or after appellant's arrest. Since we find that the police were not guilty of misconduct or negligence, a claim of gross negligence will not lie. This court has in the past stated that wanton (or gross) negligence is highly potent, and when it is present it fairly proclaims itself in no uncertain terms. It is "in the air," so to speak. It is flagrant and evinces a lawless and destructive spirit. Scott v. Scott, 75 Ariz. 116, 122, 252 P.2d 571, 575 (1953); Palmer v. Smith, 147 Wis. 70, 75, 132 N.W. 614, 617 (1911). No showing of such a flagrant violation was made by the plaintiff in this case. The ruling of the trial court was correct.

II. MALICIOUS PROSECUTION AND FALSE IMPRISONMENT

Because malicious prosecution and false imprisonment are legally related claims in this case we will consider them together.

As we have stated in the past, the essential elements of an action for malicious prosecution are 1) a criminal prosecution, 2) that terminates in favor of plaintiff, 3) with defendants as prosecutors, 4) actuated by malice, 5) without probable cause and 6) causing damages. Slade v. City of Phoenix, 112 Ariz. 298, 300, 541 P.2d 550, 552 (1975); ...