Sennett v. Zimmerman, 34080

• Decision Date: 01 August 1957
• Docket Number: No. 34080,34080
• Citation: 50 Wn.2d 649,314 P.2d 414
• Court: Washington Supreme Court
• Parties: Arthur J. SENNETT, Respondent, v. Ted ZIMMERMAN and Marcelyn Falin Appellants.

Page 649

50 Wn.2d 649

314 P.2d 414

Arthur J. SENNETT, Respondent, v. Ted ZIMMERMAN and Marcelyn Falin Appellants.

No. 34080.

Supreme Court of Washington, Department 1.

Aug. 1, 1957.

Rehearing Denied Nov. 15, 1957.

Skeel, McKelvy, Henke, Evenson & Uhlmann, Seattle, for appellants.

Frederick B. Cohen, Bremerton, for respondent.

OTT, Justice.

August 7, 1954, Arthur J. Sennett was shopping in the Pay Less drugstore in Bremerton, operated by Ted Zimmerman. His actions were observed by Marcelyn Falin, a store detective and deputy city police officer, who followed him as he left the store. She stopped Mr. Sennett on the sidewalk in front of the store and accused him of shoplifting. He was taken to a room in the rear of the drugstore and there detained until the arrival of another city police officer, who took Mr. Sennett into custody.

He was tried in justice court for petit larceny and convicted. He appealed to the superior court and was acquitted by the jury. This proceeding for false arrest and false imprisonment was instituted thereafter. From a judgment in favor of the plaintiff, entered upon the verdict of the jury, the defendants Zimmerman and Falin have appealed.

Appellants' principal assignment of error relates to the refusal of the court to submit to the jury, as a defense, the issue of whether or not the arresting officer had probable cause to believe that a crime had been committed in her presence, and to instructing the jury that their verdict must be 'for the plaintiff and against the defendants unless the defendants have proved to you by preponderance of the evidence that the plaintiff actually committed the misdemeanor for which he was arrested.' (Italics ours.)

Our examination of the record convinces us that appellants made a prima facie showing of probable cause.

Is probable cause to believe that a misdemeanor is being committed in the presence of an officer, sufficient justification for making an arrest without a warrant?

In support of his contention that an officer is without authority to make an arrest without a warrant, unless a misdemeanor was actually committed, respondent cites City of Tacoma v. Houston, 1947, 27 Wash.2d 215, 177 P.2d 886; State v. Gibbons, 1922, 118 Wash. 171, 203 P. 390, and Mitchell v. Hughes, 1918, 104 Wash. 231, 176 P. 26.

In none of the cited cases did the conduct of the accused which gave rise to the belief that an offense was being committed take place in the presence of the arresting officer. In each of the cited cases, the arresting officer was acting upon information received from third persons and upon which he relied. In the cited cases, the officer was not acting in reliance upon his personal observation of the circumstances.

In Coles v. McNamara, 1925, 136 Wash. 624, 627, 241 P. 1, 2, this court approved the following instruction "I instruct you that it is immaterial whether or not the plaintiff was actually violating the law at the time of the arrest if in fact his conduct was such as to lead a reasonably prudent officer to believe in good faith he was violating the law."

The decision in the Coles case is in accordance with the general doctrine throughout the United States. As was stated in Garske v. United States, 8 Cir., 1924, 1 F.2d 620, 622:

'It is the well-established doctrine now throughout the United States that for a crime, which they have probable cause to believe is being committed in their presence, though it be a misdemeanor, duly authorized peace officers may make arrest without a warrant. The probable cause which will justify arrest for a misdemeanor without a warrant must be a judgment based on personal knowledge acquired at the time through the senses, or inferences properly to be drawn from the testimony of the senses.'...