Gist v. Berkeley County Sheriff's Dept.

• Decision Date: 02 August 1999
• Docket Number: No. 3031.,3031.
• Citation: Gist v. Berkeley County Sheriff's Dept., 336 S.C. 611, 521 S.E.2d 163 (S.C. App. 1999)
• Court: South Carolina Court of Appeals
• Parties: Anthony GIST, Appellant, v. BERKELEY COUNTY SHERIFF'S DEPARTMENT, Respondent.

336 S.C. 611

521 S.E.2d 163

Anthony GIST, Appellant, v. BERKELEY COUNTY SHERIFF'S DEPARTMENT, Respondent.

No. 3031.

Court of Appeals of South Carolina.

Heard June 9, 1999.

Decided August 2, 1999.

Peter J. Tepley and Vanessa G. Crittenden, both of Turnipseed & Associates, of Columbia, for appellant.

Sandra J. Senn, of Charleston; and Stephanie P. McDonald, of Mt. Pleasant, for respondent.

PER CURIAM:

Anthony Gist sued the Berkeley County Sheriff's Department alleging false arrest and imprisonment.¹ The trial court granted summary judgment in favor of the Sheriff's Department. Gist appeals. We reverse and remand.

FACTS

On April 27, 1992, an African-American male robbed the Fuel Depot, a convenience store in Monck's Corner, by holding the clerk at knife-point. The clerk, Martha McDonald, told the police the robber was the same person who had attempted to cash a two-party check at the store earlier that day. She stated the name on the check was Anthony Gueist or Gist. McDonald could not remember the exact spelling of the last name. McDonald also recalled the address on the check was for Berkeley Arms.

The investigating officer, Lewis Oliver, took a soda can and packs of cigarettes the robber left on the counter as evidence to process for fingerprints. He also lifted the robber's fingerprints from the door (because the clerk had just cleaned the window before the robbery, the robber's fingerprints were the only ones on the window).

A few days after the robbery, McDonald told police she thought she saw the robber driving a red Chevrolet and provided a license plate number. A car matching the description was registered to Terry and Sandy Davis.

Oliver visited the home of an Anthony William Gist, who lived at the Berkeley Arms. Oliver obtained a picture of this Anthony Gist, which he showed to McDonald. McDonald stated the picture was not of the same person who robbed her.

Oliver later obtained appellant Gist's driver's license photograph. McDonald identified Gist as the person who robbed her. According to Oliver's notes, McDonald remarked the mustache and glasses on Gist's driver's license were different, but she was positive of her identification.

Oliver sought an arrest warrant for Gist. In his arrest warrant, Oliver reported the facts of the robbery. The affidavit does not contain any facts actually linking Gist to the crime. The magistrate issued the warrant in September, 1992.

When Gist learned about the outstanding warrant for his arrest approximately sixteen months after the warrant was issued, he turned himself in to the Richland County Sheriff's Office and was arrested for armed robbery. Gist hired an attorney to defend him on the criminal charges. Gist was held over to the next General Sessions term under bond after a preliminary hearing. Subsequent to the preliminary hearing, the Sheriffs Department completed a fingerprint analysis which indicated Gist's fingerprints did not match those of the robber. The charges against Gist were dismissed approximately two months later. On March 2, 1994, Gist obtained an order for the destruction of his arrest records.

Gist commenced the present action on September 20, 1995, alleging false arrest and imprisonment. The Sheriffs Department moved for summary judgment. The trial court granted the motion. The court ruled the Sheriffs Department could not be held liable for damages because there was a neutral and detached magistrate's determination of probable cause. The court held the Sheriffs Department was not grossly negligent in complying with the magistrate's order and that there was probable cause for the arrest as a matter of law. The court also found the Sheriffs Department was placed at a disadvantage because Gist secured an expungement of the arrest records prior to filing suit.

LAW/ANALYSIS

Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Etheredge v. Richland Sch. Dist. 1, 330 S.C. 447, 499 S.E.2d 238 (Ct.App. 1998); Rule 56(c), SCRCP. Summary judgment is not appropriate where further inquiry into the facts is desirable to clarify the application of the law. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997). When determining whether any triable issue of fact exists, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party. Pye v. Aycock, 325 S.C. 426, 480 S.E.2d 455 (Ct.App.1997). All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the movant. Staubes v. City of Folly Beach, 331 S.C. 192, 500 S.E.2d 160 (Ct.App.1998), cert. granted, Mar. 3, 1999.

Probable cause

Gist argues the trial court erred in granting summary judgment because a genuine issue of material fact exists as to whether there was probable cause for his arrest. We agree.

False imprisonment is "deprivation of a person's liberty without justification." Caldwell v. K-Mart Corp., 306 S.C. 27, 30, 410 S.E.2d 21, 23 (Ct.App.1991). An action for false imprisonment may not be maintained where the plaintiff was arrested by lawful authority. Jones v. City of Columbia, 301 S.C. 62, 389 S.E.2d 662 (1990).

The fundamental issue in determining the lawfulness of an arrest is whether there was "probable cause" to make the arrest. Wortman v. Spartanburg, 310 S.C. 1, 425 S.E.2d 18 (1992). "Probable cause is defined as a good faith belief that a person is guilty of a crime when this belief rests upon such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe likewise." Id. at 4, 425 S.E.2d at 19. "In determining the presence of probable cause for arrest, the probability cannot be technical, but must be factual and practical considerations of everyday life on which reasonable, prudent and cautious men, not legal technicians, act." Summersell v. South Carolina Dep't of Pub. Safety, 334 S.C. 357, 365, 513 S.E.2d 619, 623 (Ct.App.1999). The issue of probable cause is a question of fact and ordinarily one for the jury. Wortman, 310 S.C. 1,425 S.E.2d 18.

"All proceedings before magistrates in criminal cases shall be commenced on information under oath, plainly and substantially setting forth the offense charged, upon which, and only which, shall a warrant of arrest issue." S.C.Code Ann. § 22-3-710 (1976). A warrant affidavit that is "insufficient in itself to establish probable cause may be supplemented before a magistrate by sworn oral testimony." State v. Crane, 296 S.C. 336, 338, 372 S.E.2d 587, 588 (1988). However, a warrant issued upon a statement of facts not sworn to is unconstitutional. State v. Wimbush, 9 S.C. 309 (1878).

In this case, the warrant's affidavit does not state the facts upon which probable cause was based. It does not contain any facts actually linking Gist to the crime. As the Sheriff's Department conceded at oral argument, the affidavit, standing alone, was insufficient to establish probable cause. See State v. Smith, 301 S.C. 371, 373, 392 S.E.2d 182, 183 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)) ("An affidavit must contain sufficient underlying facts and information upon which a magistrate may make a determination of probable cause. [citations omitted] Mere conclusory statements which give the magistrate no basis to make a judgment regarding probable cause are insufficient.").

At his deposition, Oliver, the investigating officer for the Sheriff's Department, testified he sought the arrest warrant for Gist based on McDonald positively identifying Gist in a photographic lineup. He further testified that, although the warrant does not reference the photographic lineup, he told the judge about it orally. The record does not contain any evidence as to whether the affidavit was accompanied by sworn, oral testimony before the judge.

Furthermore, there is an issue of material fact concerning whether a photographic lineup occurred. In her deposition, McDonald said Oliver showed her four or five different photos. Because she gave her deposition over five years after the robbery, her memory was sketchy. She could not remember if the photos were head shots or family pictures. She remembered telling Oliver one of the photos may have been the robber, but she could not remember whether the robber wore glasses. She recalled Oliver telling her to picture the person in the photograph with or without glasses.

Oliver said he showed McDonald six photographs from which she identified Gist. The file, however, does not reference a photographic lineup, nor does it contain the other photographs. The file only contains a supplemental report in which Oliver wrote:

On 5-28-92 I met with the victim McDonald, Martha. Ms. McDonald was shown a copy of a S.C. Drivers licence and asked if she new (sic) the subject. Ms. McDonald stated, "Thats (sic) the guy who robbed me." I asked Ms. McDonald if she was positive, she stated yes. The only thing different was the mustash (sic) and the glasses, But she was positive that the person in the photo was and is the same

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