Hartgers v. Town of Plaistow, 94-462

• Decision Date: 02 August 1996
• Docket Number: No. 94-462,94-462
• Citation: 141 N.H. 253,681 A.2d 82
• Parties: H. Bruce HARTGERS v. TOWN OF PLAISTOW & a.
• Court: New Hampshire Supreme Court

Page 82

681 A.2d 82

141 N.H. 253

H. Bruce HARTGERS v. TOWN OF PLAISTOW & a.

No. 94-462.

Supreme Court of New Hampshire.

Aug. 2, 1996.

McNeill & Taylor, P.A., Dover (R. Peter Taylor and Lynne M. Dennis, on the brief, and Mr. Taylor, on the supplemental brief and orally), for plaintiff.

Devine, Millimet & Branch, P.A., Manchester (Robert E. McDaniel and Gregory D.H. Jones, on the brief, Mr. McDaniel and Charles R. Powell, III, on the supplemental brief, and Mr. Jones and Mr. Powell, orally), for defendants.

BRODERICK, Justice.

The plaintiff, H. Bruce Hartgers, sued the defendants, the Town of Plaistow and the Plaistow Police Department, alleging that his arrest for the offense of issuing a bad check under RSA 638:4 (1986 & Supp.1990) violated his rights under the first, fourth, fifth, and fourteenth amendments to the United States Constitution, see 42 U.S.C. §§ 1983, 1988 (1988), and related State statutory and constitutional provisions. The Superior Court (Dickson, J.) ruled that the police had probable cause to arrest the plaintiff and granted the defendants' motion for summary judgment. We affirm.

In August 1989, the plaintiff borrowed $6,000 from Roscoe Kidder, owner of Kidder Building and Wrecking. The plaintiff was unable to repay the money by the time agreed, so in September 1989, he issued a check for $6,000 payable to Kidder Building and Wrecking. The check was post-dated for October 3, 1989, because the plaintiff knew at the time he issued the check he did not have sufficient funds in the account to cover it.

On March 22, 1990, Stephen Snow, an employee of Kidder Building and Wrecking, met with officers of the Plaistow Police Department, asserting that the plaintiff had issued a bad check for $6,000. Showing the investigating officers, Lt. Thomas Bourque and Sgt. Kathleen Jones, a photocopy of the face of the check, Snow told the officers that the plaintiff's check was presented to the drawee, Bank of New England, but the check was not honored due to insufficient funds. Snow indicated that he had spoken with the plaintiff on a number of occasions to resolve the issue. Lt. Bourque advised Snow to send the plaintiff a certified letter demanding payment and said they would follow up if the plaintiff did not respond to the letter. On May 2, 1990, Sgt. Jones contacted Snow to determine whether the plaintiff had responded to the fourteen-day demand letter. Snow indicated that he had sent the letter and received no response from the plaintiff.

Based upon this information, Sgt. Jones prepared an affidavit on May 3, 1990, and obtained a warrant for the plaintiff's arrest for the offense of issuing a bad check. The plaintiff was arrested on May 9, 1990. He was held overnight and arraigned the next day in Plaistow District Court. At his arraignment, he explained that he had issued the post-dated check as repayment for the loan and reached an agreement with Kidder that Kidder would not deposit the check until the plaintiff told him the account had sufficient funds. The plaintiff also told the court that the check was never actually deposited because the Bank of New England determined there were insufficient funds to cover the check.

After further investigation, the police confirmed the plaintiff's statements and concluded that elements of the offense of issuing a bad check had not been met. The case was ultimately dismissed by the Plaistow District Court on July 26, 1990, for lack of probable cause. Thereafter, the plaintiff filed suit against the defendants alleging violations of his rights under the Federal and State Constitutions. He also alleged violations of State law for malicious prosecution and negligent failure to train and supervise.

Both the plaintiff and the defendants moved for summary judgment. The parties agreed there was no dispute as to the material facts of the case, and the superior court concluded that all of the plaintiff's claims were contingent upon a finding that the Plaistow police lacked probable cause to arrest him. The court found that the police had probable cause at the time they arrested the plaintiff and accordingly denied his motion for summary judgment and granted the defendants' motion. On appeal, the plaintiff argues that the trial court erred in concluding that the police had probable cause to arrest. The plaintiff also maintains that the Plaistow District Court's dismissal of the charge against him for lack of probable cause collaterally estops the defendants from relitigating the issue.

The court below correctly framed the question in this case as whether the Plaistow Police Department had probable cause to arrest the plaintiff for violating RSA 638:4. "Probable cause to arrest exists when the arresting officer has knowledge and trustworthy information sufficient to warrant a person of reasonable caution and prudence in believing that the arrestee has committed an offense." State v. Brown, 138 N.H. 407, 409, 640 A.2d 286, 287-88 (1994). "The determination of probable cause must be viewed in the light of factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act." State v. Jaroma, 137 N.H. 562, 567, 630 A.2d 1173, 1176 (1993) (quotation omitted).

The trial court did not err in concluding that the police had probable cause to arrest the plaintiff for a violation of RSA 638:4. The statute provides: "A person is guilty of issuing a bad check if he issues or passes a check for the payment of money and payment is refused by the drawee." RSA 638:4, I (Supp.1990). The person must know or believe that the check would not be paid by the drawee. RSA 638:4, IV(e) (Supp.1990). The record shows that Snow, an employee of Kidder, provided the police with information relating to each element of the offense. He told the police that the plaintiff had issued the check in question; that the check had been returned from the bank for lack of sufficient funds; that he had made several unsuccessful attempts to contact the plaintiff and resolve the issue; and that he had sent the plaintiff a fourteen-day demand letter to which he had received no response. Based upon this information, a justice of the peace authorized a warrant for the plaintiff's arrest, and we agree that the police had sufficient information upon which a reasonably prudent person could believe the plaintiff had...