Thompson v. Smith, 0668

• Decision Date: 18 February 1986
• Docket Number: No. 0668,0668
• Citation: 345 S.E.2d 500,289 S.C. 334
• Court: South Carolina Court of Appeals
• Parties: David B. THOMPSON, Respondent, v. Donald E. SMITH, Jr., Appellant. . Heard

Page 500

345 S.E.2d 500

289 S.C. 334

David B. THOMPSON, Respondent, v. Donald E. SMITH, Jr., Appellant.

No. 0668.

Court of Appeals of South Carolina.

Heard Feb. 18, 1986.

Decided March 31, 1986.

T. Emmet Walsh and Marshall T. Walsh, both of Gaines & Walsh, Spartanburg, for appellant.

Gary L. Compton, Spartanburg, for respondent.

GARDNER, Judge.

Thompson sued Spartanburg City Policeman Smith for false arrest and imprisonment; the jury awarded Thompson $10,000. We reverse and remand.

On July 3, 1982, 17 year old Thompson purchased a car. On July 4, 1982, before he insured the car, Thompson was involved in an accident by which he caused about $400 damage to the other car.

At about 2:00 a.m. on September 2, 1982, Thompson drove his father to a grocery store. The car he was driving had expired tags, but it was lawful for Thompson to drive it because he purchased it only a few days earlier. Smith approached Thompson about the expired tags. Thompson withdrew some papers from his car to show that it was lawful for him to drive the automobile because he had just bought it; among these papers was a notice from the Highway Department that his license would be suspended on September 1, 1982, unless before that time he complied with one of six enumerated measures designed to insure compensation to the driver of the other automobile which Thompson had damaged. Smith then questioned Thompson about this; Thompson told Smith that he had obtained a 10-day extension of time to comply with the requirements. Smith told Thompson that he could not believe every "teenage punk"; he called SLED but the computer was closed down and thereupon he arrested Thompson and jailed him. At about 4:30 a.m., after jailing Thompson, the police discovered that Thompson's license had not been revoked; the police, nevertheless, kept Thompson in jail for about another hour.

We reject all but one of the questions raised by Smith on appeal. That question pertains to the failure of the trial judge upon timely request to define probable cause.

The trial judge without objection throughout the trial of this case adopted the position that an officer might arrest for a misdemeanor where he has probable cause to believe that a misdemeanor is being committed in his presence and that the arrested person is the misdemeanant. This is the majority rule. 6A C.J.S. Arrest Section 20(d) (1975). Upon timely request to charge, however, the trial judge refused to define probable cause. While we adhere to the proposition that mere suspicion or belief that a misdemeanor has been committed is insufficient to warrant an arrest without a warrant, under the circumstances we hold that the trial judge should have defined probable cause.

The jury should have been instructed that even though the arrest was illegal if based only upon a mere suspicion or belief, if Smith had probable cause to make the arrest it was not a wrongful arrest and that probable cause, under the circumstances, was a question of fact for the jury. ¹

Probable cause is defined as a good faith belief that a person is guilty of a crime when the belief rests on such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe likewise. 6A C.J.S. Arrest Section 22 (1975). The trial judge should have charged further that probable cause for arrest in misdemeanor cases without a warrant is something more than a mere...