DeChene v. Smallwood

• Decision Date: 20 January 1984
• Docket Number: No. 811210,811210
• Parties: Michael DeCHENE v. Gerald SMALLWOOD. Record
• Court: Virginia Supreme Court

Page 749

311 S.E.2d 749

226 Va. 475

Michael DeCHENE v. Gerald SMALLWOOD.

Record No. 811210.

Supreme Court of Virginia.

Jan. 20, 1984.

Robert Lyndon Howell, Asst. County Atty. (David T. Stitt, County Atty., on brief), for appellant.

Gerald E. Smallwood, pro se.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON, RUSSELL and THOMAS, JJ.

CARRICO, Chief Justice.

In the trial court, Gerald Smallwood recovered three judgments totalling $7,025.00 against Michael DeChene, a Fairfax County police officer, for false imprisonment, assault and battery, and conversion of an automobile. Concluding that the judgments are erroneous, we reverse.

This controversy arose out of a minor traffic accident which occurred on March 29, 1979, when Smallwood's automobile and another car collided on a Fairfax County highway. Officer DeChene was dispatched to investigate the accident. Finding the two vehicles locked together, DeChene radioed for a tow truck. In response, a tow truck operated by Dallas Lunceford arrived and separated the two vehicles. At this point, DeChene left the scene.

An argument arose between Smallwood and Lunceford concerning the $20.00 fee Lunceford demanded for his services. Unable to settle the matter at the scene, the two "adjourned" to a parking lot to "examine [the] situation." When Smallwood persisted in his refusal to pay, Lunceford called for Officer DeChene to report to the parking lot.

Upon DeChene's arrival, Lunceford stated that Smallwood had refused to pay the fee for the tow truck and that he, Lunceford, was "going to take [Smallwood's] car back because he [had] a right to it." Smallwood made comments about his constitutional rights and reiterated his refusal to pay. DeChene then stated he would arrest Smallwood for defrauding a garage keeper unless Lunceford's fee was paid. When Smallwood again refused to pay, DeChene arrested, searched, and handcuffed him. DeChene also impounded Smallwood's car and directed Lunceford to tow it from the parking lot.

DeChene took Smallwood to the Fairfax County Adult Detention Center and secured from a magistrate a warrant charging Smallwood with defrauding a garage keeper. On May 18, 1979, with the Commonwealth's attorney prosecuting the case, Smallwood was tried on the charge in general district court and acquitted. ¹

In connection with his impoundment of Smallwood's car, DeChene had a "Vehicle Tow-In and Inventory Record" prepared. This document stated that the car could be released upon proof of ownership and payment of towing and storage charges. Although Smallwood demanded return of the car, he did not pay the towing and storage charges, and the vehicle was not returned to him.

In deciding this case, the trial court indicated that a police officer may make an arrest for a misdemeanor committed in his presence where, although he misperceives the facts he observes, "those facts could reasonably be seen to conform to [the] law," but not where he mistakenly believes the law has made criminal the conduct he observes. In other words, the court found that, in making an arrest, a police officer is protected from civil liability for a mistake of fact but not for a mistake of law. Proceeding on this basis, the court held that Officer DeChene's arrest of Smallwood was unlawful because the officer mistakenly believed Code § 18.2-189 included the word "services" and made a crime of a motorist's refusal to pay a garageman's towing fee.

The trial judge apparently believed that our decision in Yeatts v. Minton, 211 Va. 402, 177 S.E.2d 646 (1970), created the mistake of fact/mistake of law dichotomy he found in Virginia law. There, we said:

An officer has the duty to arrest a person who commits a misdemeanor in his presence, even though the officer has no arrest warrant.... And an arrest, though warrantless, is valid where the officer had probable cause to believe that a misdemeanor was committed in his presence, even though the action he observed did not in fact constitute a misdemeanor.

Id. at 405, 177 S.E.2d at 648 (citations omitted) (emphasis added). The mistake of fact involved in Yeatts consisted of the arresting officer's incorrect belief that the accused was "jacklighting deer," an offense under the game laws, when in fact he was engaged in perfectly legal activity. We held that because the accused's actions "reasonably appeared" to constitute a violation of the game laws, the arrest was lawful. Id. at 406, 177 S.E.2d at 649.

Because Yeatts involved only a mistake of fact, we did not discuss whether any set of circumstances would uphold an arrest against an alleged mistake of law. Nothing in Yeatts suggests, therefore, that had the officer's mistake been one of law, e.g., an incorrect belief that "jacklighting deer" had been made a crime when it had not, the arrest necessarily would have been unlawful.

We believe an arrest resulting from a mistake of law should be judged by the same test as one stemming from a mistake of fact, viz., whether the arresting officer acted "in good faith and with probable cause." Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). This test "has been consistently read as meaning good faith and 'reasonable belief' in the validity of the arrest." Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 456 F.2d 1339, 1347 (2d Cir.1972).

[T]o prevail [under this test] the police officer need not allege and prove probable cause in the constitutional sense. The standard governing police conduct is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable. And so ... it is a defense to allege and prove good faith and reasonable belief in the validity of the arrest ... and in the necessity for carrying out the arrest ... in the way the arrest was made.... [A]s a matter of constitutional law and as a matter of common sense, a law enforcement officer is entitled to this protection.

Id. at 1348 (emphasis added). While Bivens involved federal law enforcement agents, the "good faith and reasonable belief" defense is available to state law enforcement officials as well. Hill v. Rowland, 474 F.2d 1374, 1377 (4th Cir.1973).

Smallwood argues, however, citing Crosswhite v. Barnes, 139 Va. 471, 124 S.E. 242 (1924), that under Virginia law, "good faith is no answer to [a false imprisonment] claim." But, as we pointed out in our Yeatts opinion, Crosswhite involved a warrantless arrest for a misdemeanor not committed in the officer's presence. Hence, we said, even if the officer in Crosswhite had probable cause to believe that a misdemeanor had been committed, the arrest was nonetheless unlawful. Yeatts, 211 Va. at 406, 177 S.E.2d at 649. Here, the conduct of Smallwood which prompted his arrest occurred in Officer DeChene's presence; therefore, the legality of the arrest will turn on whether Officer DeChene acted in good faith and with reasonable belief in the validity of the arrest.

The trial judge found...