Rodarte v. City of Riverton, 4480

Citation552 P.2d 1245
Decision Date20 July 1976
Docket NumberNo. 4480,4480
PartiesSusan RODARTE, a minor, by her next friend, Ben Rodarte, Appellant (Plaintiff below), v. The CITY OF RIVERTON, a Wyoming Municipality, et al., Appellees (Defendants below).
CourtUnited States State Supreme Court of Wyoming

F. M. Andrews, Jr., Riverton, for appellant.

Donald P. White, of White & Hansen, Riverton, for appellees, City of Riverton and Riverton Police Reserves.

James W. Owens, of Murane, Bostwick, McDaniel, Scott, Greenlee & Owens, Casper, for appellees, Horyza, McAuslan, Barber and Hays.



ROSE, Justice.


This appeal comes from an incident involving the arrest of plaintiff-appellant Susan Rodarte, a minor, by members of the Riverton Police Department on December 18, 1973. The appellant charges wrongful arrest and battery against various appellees-defendants and asks that they respond in damages. A member of the so-called 'Riverton Police Reserves' participated in the activities of the other police officers upon the occasion in question here and this aspect of the appeal will be discussed later in the opinion.

The appellees say that there was no arrest but, if we find to the contrary, it is nonetheless assumed by this court that the All defendants filed motions for summary judgment, which were sustained and judgment entered accordingly. This appeal arises from that judgment and from denial of plaintiff's motion for summary judgment seeking injunctive relief against the 'Reserves.'

contention is made that there existed good faith and probable cause 1 to believe a crime had been or was being committed by the plaintiff, which warranted her being handcuffed and transported to the Riverton Police Station in a police patrol car, where she was physically searched, questioned and subsequently released with no complaint having been filed.

There is no dispute in the factual area of the appeal and therefore we adopt the appellant's statement of facts, which is also acceptable to the appellees. The opinion will be supplemented by other facts gathered from the record, including those suggested by appellees, as they seem necessary and appropriate.

On December 18, 1973, Susan Rodarte and her friend Nita Gina met Don Jasch and Fred Skorcz by happenstance at Taco John's, a fast-food outlet in Riverton, Wyoming. Plaintiff knew Jasch, the driver of the pickup truck, but she did not know Skorcz, nor did she knew that the vehicle was his. The girls were asked and they agreed to ride around with the men provided they could first return the plaintiff's automobile to her home where she would deliver it to her parents. This was done and the boys picked up the girls at the plaintiff's residence, whereupon they returned to Taco John's.

A warrant had previously been issued for the arrest of Fred Skorcz, charging him with the sale of narcotics, and the Riverton police were looking for him. The plaintiff did not know this, nor is there any evidence to indicate that she, at any time prior to her arrest, had any knowledge whatever of Skorcz' marihuana activities. Upon discovery and identification of the Skorcz vehicle in the vicinity of Taco John's, Officers Barber and Lain of the Riverton Police Department notified the police station and kept the subject under surveillance while Officer McAuslan (who was in plain clothes) and 'Reserve Officer' Hays (who was in full uniform) proceeded to the scene to direct and aid in the arrest of Skorcz. The two police vehicles were positioned in front and in back of the pickup and, when confronted by the officers, Skorcz identified himself and was removed from his pickup truck and placed in the custody of Hays, the 'Reserve' policeman, who handcuffed him and ordered him into a police patrol car. The plaintiff, Nita Gina and Don Jasch also removed themselves from the pickup at the direction of the police officers. Hays did not participate in the arrest of Gina, Jasch and Rodarte.

In the course of these activities, Officers Lain and McAuslan observed a plastic sack on the floor of the pickup containing plant material which they suspected to be marihuana. McAuslan gave instructions to Officers Lain and Barber to take the three occupants 'downtown,' whereupon, without interrogation, inquiry or further ado, all three were handcuffed and transported in the other police vehicle to the police station. The two men were given a 'pat down' search before the vehicles left the scene, but the women were not. At no time was there any threat of harm to the police officers or any attempt to escape made by any of the four suspects. The officers did not inform the plaintiff, either at the scene or at the police station, with charge, if any, was to be lodged against her. In fact, she was never charged with any crime or wrongdoing. Miss Rodarte testified by deposition that the officer who drove them to the police station told them At the station, after a matron searched the clothing and person of the plaintiff, she was questioned by Officer McAuslan as to whether she owned the suspected marihuana or whether she knew to whom it belonged, and when her responses were negative Officer McAuslan told her she could go. The total time of detention at the station was between 15 and 20 minutes.

that they were under arrest for 'possession of marihuana,' but the officers have insisted that they did not arrest the plaintiff for any violation.


This case presents an opportunity to analyze for Bench and Bar the question of 'probable cause' for arrest in the constitutional or criminal context on the one hand, and the 'good faith and probable cause' defense to the defendant-arresting officer in a tort case on the other hand.

We inquire into this question exhaustively because we recognize the distinction to be misty, hazy and vague and we also realize that police officers, as well as the public, may not know of their rights unless courts will define them. That the area has its hazards is indicated by the observation of Judge Medina in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 2 Cir. 1972, 456 F.2d 1339, 1348, where he said:

'The numerous dissents, concurrences and reversals, especially in the last decade, indicate that even learned and experienced jurists have had difficulty in defining the rules that govern a determination of probable cause, with or without a warrant. See e. g., Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). As he tries to find his way in this thicket, the police officer must not be held to act at his peril.'



The appellant defines her first issue for resolve here as follows:

'The Court erred in ruling, as a matter of law, that the arrest was lawful and that the subsequent handcuffing and search was (sic) necessary, proper and reasonable.'

The trial judge said in his memorandum opinion:

'In my judgment there was probable cause for the officers to believe that a crime was being committed in their presence, and the arrest therefore was lawful. Marijuana was also found under the part of the seat occupied by the plaintiff. (Emphasis supplied)

'The arrest being lawful, it would seem to me that the handcuffing and the search were both necessary, proper, and reasonable under the circumstances and in the absence of any other claim of mistreatment, abuse, excessive force or other improper action by the officers, motion for summary judgment will be granted.'

The other side of the coin is that if the arrest was unlawful for want of the kind of good faith probable cause that will serve as a defense in a civil action where wrongful arrest is charged, the handcuffing and search were improper.

If it was intended by the trial judge that his finding be understood to mean that there was good faith and probable cause for the officers to believe that Susan Rodarte, the plaintiff, was committing a crime in their presence, then we cannot agree that this could be concluded as a matter of law under the undisputed facts of this case. Miss Rodarte could not Since the record does not disclose undisputed evidence of good faith and probable cause to believe that the appellant had committed a crime or was, in the presence of the officers, committing a crime, thereby authorizing her warrantless arrest, we hold that the entry by the lower court of a summary judgment against this plaintiff was prejudicial error necessitating reversal, and the case must be, and is herewith ordered, remanded for trial on the issues and under instructions of law which are not inconsistent with this opinion.

of course, be arrested upon a contention of good faith and probable cause to believe that she was present while someone else was committing a crime in the presence of the officers absent any good faith showing or cause to believe that she had participated therein.

What Is An Arrest?

We preliminarily address ourselves to the question of whether Susan Rodarte was arrested.

In his opinion, the trial judge said:

'The plaintiff asserts she was arrested. The testimony of the officers is somewhat uncertain or indefinite but there is no dispute as to the principal action taken and, according to the opening definition of arrest in the article on this subject in American Jurisprudence, it would seem plain that she was in fact arrested.'

The definition to which the judge had reference is the following:

'An arrest is the taking, seizing, or detaining of the person of another, (1) by touching or putting hands on him; (2) or by any act that indicates an intention to take him into custody and that subjects him to the actual...

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