Kyle v. City of New Orleans

• Decision Date: 15 February 1977
• Docket Number: No. 7823,7823
• Citation: 342 So.2d 1257
• Parties: John A. KYLE et al. v. CITY OF NEW ORLEANS and Lieutenant Eugene Fields of the New Orleans Police Department.
• Court: Court of Appeal of Louisiana — District of US

Page 1257

342 So.2d 1257

John A. KYLE et al. v. CITY OF NEW ORLEANS and Lieutenant Eugene Fields of the New Orleans Police Department.

No. 7823.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 15, 1977.

Rehearing Denied March 15, 1977.

Writ Granted May 18, 1977.

Leroy J. Falgout, Kenner, for plaintiffs-appellants.

Philip S. Brooks, Joseph J. Laura, Jr., Freeman R. Matthews, New Orleans, for defendants-appellants.

Before GULOTTA, SCHOTT and MORIAL, JJ.

GULOTTA, Judge.

Plaintiffs sustained gunshot wounds when arrested by defendant police officers who had obtained information placing suspicion on plaintiffs as perpetrators of an armed robbery. In the subsequent damage suit, the trial judge concluded that the warrantless arrest, though lawful, had been effected with unreasonable force.

All parties appeal from the general damage awards in favor of plaintiffs against defendants, City of New Orleans and Lt. Eugene Fields of the New Orleans Police Department, in solido. Plaintiffs contend that no probable cause existed to justify the arrest and seek damages for false arrest and imprisonment as well as an increase in the quantum of general damages. Defendants deny liability on the grounds that the arrest was legal and effected with reasonable force under the circumstances.

On February 19, 1972, at approximately noon, the New Orleans Police Department received a report that an armed robbery had been committed by two masked, white males at the A&P Supermarket on Harmony and Magazine Streets in the City of New Orleans. Information obtained in an ensuing police investigation implicated plaintiffs, John A. Kyle and George E. Godbey, as the robbery suspects; and shortly after 8:00 p.m., on the same day, a team of police officers went to Kyle's apartment to arrest them.

Plaintiffs' version of the incident is that five armed officers--four wearing civilian dress suits and one clad in a windbreaker and sports clothes--positioned themselves at the entrance of the apartment occupied by plaintiffs. According to Kyle, when he opened the door in response to a knock, he observed a male in civilian clothes holding a shotgun; whereupon, in fear of being robbed, he slammed the door. Shotgun blasts were fired into the apartment through the door, and the three plaintiffs were injured.

According to the police officers' version, they had been reliably informed that the apartment was occupied by two perpetrators of the armed robbery. The police officers claim that they positioned themselves at the apartment entrance; Lt. Eugene Fields then knocked on the apartment door; and, after the door was opened by Kyle, one of the other police officers identified himself and produced his identification folder. Despite this identification, the police officers claim that Kyle slammed the apartment door. During the ensuing attempt to gain entrance, the shotgun was fired for the purpose of disengaging the lock on the door.

PROBABLE CAUSE

The primary thrust of plaintiffs' appeal is that the trial judge erred in concluding defendants possessed sufficient and reliable information to effect a warrantless arrest. According to plaintiffs, the arresting officers did not have probable cause to believe that plaintiffs had committed the A&P robbery and that no 'exigent circumstances' required immediate entry without a warrant. We disagree.

During the investigation immediately following the robbery, the police interviewed Ralph Lozier, a security guard. He informed the officers that Kenneth Hodell, also a security guard, had told him that he (Hodell) had spoken with Kyle and Godbey prior to the robbery, at which time plaintiffs had inquired about obtaining guns; the security of the A&P the time of arrival of the armored car; and the location of the safe. This conversation between Lozier and Hodell took place approximately two days prior to the robbery. The height and weight descriptions of the suspects were similar to the plaintiffs. The officers were led by Hodell to Kyle's apartment where the arrest was made.

With regard to the statements given to the police by Lozier and Hodell, Lt. Eugene Fields testified:

'(B)ased on what they had told us, based on the physical description, based on the fact that they (Kyle and Godbey) lived in the area of the supermarket, we felt we had probable cause to go to the apartment and effect the arrest.'

Lt. Fields further testified that Hodell's admissions following initial lies ¹ led him to conclude that there was some type of conspiracy which Hodell was attempting to cover up. Hodell was interrogated by the police for approximately three hours and was arrested and booked in connection with the robbery. Based on this information, the arresting police officers believed that the apartment occupants had perpetrated the robbery and were armed and dangerous.

LSA-C.Cr.P. art. 213 provides, in pertinent part:

Art. 213. Arrest by officer without warrant; when lawful

'A peace officer may, without a warrant, arrest a person when:

(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer;'

In State v. Dell, 258 La. 1024, 249 So.2d 118, 122 (1971), the court stated that this 'reasonable cause' or 'probable cause' to arrest without a warrant

'. . . exists when the facts and circumstances within the arresting officer's knowledge, and of which he has reasonable, trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that an offense has been or is being committed. Compliance with these standards is, in the first instance, a substantive determination to be made by the trial court from the facts and circumstances of the case.

'In such cases, because only factual issues are presented by the contentions, the setting in which the arrests took place becomes a factor of prime importance; facts and circumstances known to the arresting officers from which they might draw conclusions warranted by their training and experience become the focus of our attention with due allowance for the discretion vested in the trial court. * * *'

Further, as the court stated in State v. St. Amand, 274 So.2d 179, 186 (La.1973):

'* * * In determining whether reasonable cause for arrest exists, the rigorous proof required for conviction is not needed. Reasonable cause is something less and must be judged by the probabilities and practical considerations of everyday life on which average men, and more particularly average police officers, can be expected to act. * * *'

Applying the jurisprudential tests for 'reasonable' or 'probable' cause, we conclude the record supports the trial judge's determination that probable cause existed to effect the warrantless arrests of Kyle and Godbey. The fact that subsequent information and arrest of other persons proved that the robbery had not been perpetrated by plaintiffs (resulting in the dismissal of charges against Kyle and Godbey) does not alter the fact that information gained prior to the arrest was sufficient to place police officers in the reasonable belief that plaintiffs were perpetrators of the robbery.

REASONABLENESS OF FORCE TO EFFECT THE ARREST

Having concluded that probable cause existed, we are confronted with the question whether the actions of the officers in effecting the arrest were excessive. LSA-C.Cr.P. arts. 220 and 224 provide:

Art. 220. Submission to arrest; use of force

'A person shall submit peaceably...