Gorlack v. Ferrari

• Decision Date: 19 September 1960
• Citation: 7 Cal.Rptr. 699,184 Cal.App.2d 702
• Parties: Trudy M. GORLACK, Appellant, v. John FERRARI and Irma L. Ferrari; Dale F. Van Cleave; Robert F. Bristol and Lloyd L. Duncan, Respondents. Civ. 6401.
• Court: California Court of Appeals Court of Appeals

Page 699

7 Cal.Rptr. 699

184 Cal.App.2d 702

Trudy M. GORLACK, Appellant, v. John FERRARI and Irma L. Ferrari; Dale F. Van Cleave; Robert F. Bristol and Lloyd L. Duncan, Respondents.

Civ. 6401.

District Court of Appeal, Fourth District, California.

Sept. 19, 1960.

Thomas Whelan, San Diego, for appellant.

Frank C. Owen, San Diego, for respondents Ferrari.

J. E. DuPaul, City Atty. of San Diego, and Raymond F. Moats, Jr., Deputy City Atty., San Diego, for respondent Van Cleave, Bristol and Duncan.

GRIFFIN, Presiding Justice.

Appellant instituted this action against defendants John Ferrari and Irma Ferrari, his wife, and three San Diego city policemen for false arrest and false imprisonment. After a trial before the court sitting without a jury, judgment was rendered in favor of the defendants and appellant appeals therefrom.

On January 14, 1957, appellant was a housewife residing in the Pacific Beach area of San Diego near the home of the Ferraris, with whom she was socially acquainted. On that evening, both Mr. Gorlack, appellant's husband, and Mr. Ferrari were at work, and appellant visited with Mrs. Ferrari in the latter's home. Mrs. Ferrari owned a diamond ring of an unusual design, valued at about a thousand dollars, which she customarily deposited on a bedroom dresser when she was not wearing it. Between 8:00 and 9:00 o'clock p. m. on the evening in question, appellant was in the bedroom where the ring was located while Mrs. Ferrari was there attending her child. At this time the telephone rang and appellant remained in the bedroom while Mrs. Ferrari answered the call in another room. After a five-minute absence, Mrs. Ferrari returned to the bedroom where she soon noticed that her ring was missing from the dresser. Almost immediately Mrs. Ferrari observed that the appellant was holding a key-case tightly in her hands, and, one end of the case being open, Mrs. Ferrari saw the ring inside the key-case. Mrs. Ferrari became upset and asked appellant's permission to examine her key-case. Appellant replied that she was supersitious about anyone touching her key-case with the keys in it and asked Mrs. Ferrari to turn her back while the appellant removed the keys. Mrs. Ferrari turned and went into the kitchen, looking back as she did so, and observed appellant remove the ring from the key-case and drop the ring inside the top of her blouse. Appellant then permitted Mrs. Ferrari to examine the key-case. Mrs. Ferrari was unable to face up to the situation and demand the return of her ring but attempted to persuade appellant to remain until Mr. Ferrari arrived home. Appellant insisted upon leaving and almost immediately thereafter departed from the Ferrari home.

Mrs. Ferrari then reported the theft to the police and called her husband who returned home a few minutes later, about 9:00 p. m. At about 9:30 p. m., Sergeant Frank Peters of the San Diego Police Department, who was not made a defendant in this action, and Officers Bristol and Duncan, who are named as defendants herein, arrived at the Ferrari home to take a grand theft report. Mrs. Ferrari related to them the events described above that had just transpired concerning the theft of the ring. The three officers then went to the appellant's home, accompanied by Mr. Ferrari, who went along to identify the ring and to identify the appellant who was the suspected thief. They arrived at appellant's home about 10:15 p. m. and one of the officers knocked on the door. The appellant opened the door and granted the officers permission to enter her apartment. Immediately they noticed that she and her small son were fully dressed and that each of them was either wearing a coat or had a coat at hand.

Mr. Ferrari immediately demanded that appellant return the ring which she had taken, but appellant denied having the ring. Sergeant Peters then placed appellant under arrest and a search of the apartment was conducted. The search revealed that all the personal effects in the apartment were packed in boxes or suitcases. Appellant explained this, saying that she and her husband and son were planning to take an extended automobile trip as soon as he could obtain leave from his job. While the search was conducted, the officers asked respondent John Ferrari to draw a picture of the ring. Appellant bent over Ferrari while he was doing this and corrected several mistakes he had made while drawing the diagram of the ring. Previously appellant had denied ever having seen the ring or having heard of it. The appellant's leather key-case was examined and found to contain a circular impression as if someone had placed a round object within the case and pressed down upon it. After the officers completed their search without discovering the ring, Sergeant Peters instructed Officers Duncan and Bristol to transport appellant to the city police station where the city jail is also located. This was done and the appellant was booked and admitted to jail in accordance with departmental regulations. Officer Bristol testified that the San Diego Police Department's procedure with regard to admitting arrested prisoners to jail was as follows:

'Q. What is standard police procedure with regard to bringing in an arrested prisoner? A. Department policy has it that on any arrest, with the exception of a common, ordinary drunk, the booking slip, as I explained yesterday, has the charge, the arresting officer's location, the division that is making the arrest, the statement of the Patrol Captain or Lieutenant whichever it may be at the time. The circumstances relating to the case and the arrest are related to the (Patrol Captain) and he then either signs the slip or makes some disposition of it, as to the calling in the defendant or signing the slip right there or releasing the prisoner, whatever the situation may be. After the slip is signed, if it is signed, the person is deposited in the jail by the arresting officer.'

Section 4, part 2 of the San Diego Police Manual, prescribes the duties of the patrol captain, in subsections (a) and (e), as follows:

'(a) He shall have the general administrative duties provided in this manual for commanding officers and, in addition, have the specific duties provided herein.

'(e) He shall be responsible for the proper disposition of all prisoners and shall have the authority to release prisoners or change the charge under which they are held when he has sufficient facts or evidence to warrant such action. He shall also review their booking and shall determine that the proper charge is placed against them or if the facts do not warrant an arrest being made that the person is released from custody.'

Officer Bristol testified that as soon as appellant arrived at the city police station he took a booking slip to the patrol captain and related the circumstances out of which appellant's arrest arose. After the patrol captain signed the slip and approved appellant's booking on a felony grand theft charge, appellant was turned over to the officers in charge of the jail and confined therein. Officer Van Cleave, a defendant herein, was a sergeant in charge of the booking detail at the time appellant was admitted to jail. He testified that he was jail sergeant on the night that appellant was booked, and that, although he did not remember the appellant specifically, a person was booked for grand theft on that night. He also testified that the procedure at the San Diego jail was that no person charged with a felony could be accepted by the jail crew except by having a signed booking slip presented and that no jailer could release any prisoner except on competent authority either by court order or by release from the commanding officer in charge of the division involved. Van Cleave also testified that he went off duty the morning following appellant's incarceration and that the following two days were his days off and that he did not see appellant again until the time of trial, nor did he have anything to do with the investigation or handling of appellant's case after her booking.

On the morning following appellant's arrest, her case was turned over for investigation to Officer Woods who was with the detective bureau in the burglary division investigating thefts. He began investigating the case at 8:00 a. m. on the day following appellant's arrest and continued his investigation until appellant's release from confinement. Officer Woods testified that during his initial interview of appellant on the morning following her arrest, she expressed a desire to get an attorney and obtain her release on bail. After some conversation, Officer Woods inferred that appellant did not have a great deal of money and he suggested that he would speed up the investigation as much as possible in an attempt to determine whether there was sufficient evidence to warrant filing a complaint or whether she should be released from custody without a complaint being filed. Officer Woods informed appellant that she could call an attorney and be released from jail on bail, but that he would soon know whether a charge would be filed, and, by waiting, she might save the cost of the bail-bond and attorney's fee. Appellant agreed with the officer that it would be more advisable to defer obtaining an attorney and release on bail until the completion of the police investigation. Officer Woods testified that at the initial interview he had tentatively formed the opinion that appellant was innocent of the charge, but after completing his investigation his opinion was changed and he believed appellant to be guilty of the offense. Nevertheless, he apparently concluded that there was insufficient evidence to sustain a prosecution. Appellant was released from custody on January 16 at about 2:00 p. m., without having been charged. There was testimony that after a felony case was turned over to the detective bureau for investigation, neither the arresting officers nor the officers in charge of the jail...