White v. Martin

• Citation: 215 Cal.App.2d 641,30 Cal.Rptr. 367
• Parties: Walter E. WHITE, Plaintiff and Appellant, v. Eldon M. MARTIN and Frederick J. Harre, Defendants and Respondents. Civ. 26811.
• Decision Date: 02 May 1963
• Court: California Court of Appeals Court of Appeals

Page 367

30 Cal.Rptr. 367

215 Cal.App.2d 641

Walter E. WHITE, Plaintiff and Appellant, v. Eldon M. MARTIN and Frederick J. Harre, Defendants and Respondents.

Civ. 26811.

District Court of Appeal, Second District, Division 1, California.

May 2, 1963.

Rehearing Denied May 24, 1963.

Hearing Denied June 26, 1963.

Walter E. White, Santa Maria, in pro. per., for appellant.

Harold W. Kennedy, County Counsel, and Irvin Taplin, Jr., Deputy County Counsel, for respondents.

LILLIE, Justice.

Plaintiff sued defendants, sheriff's deputies, for false arrest and imprisonment alleging wrongful arrest without a warrant on suspicion of burglary; defendants claim they had probable cause to arrest plaintiff. The matter was heard before a jury; at the end of plaintiff's case the lower court granted defendants' motion for nonsuit. Appeal is from the order.

While plaintiff has seen fit to include in the record before us only a reporter's partial transcript, it is apparent that it and the exhibits reflect substantially all of the evidence received at the trial; moreover, appellant has not pointed out wherein any of his testimony not before us creates a factual conflict on the issue of probable cause. Plaintiff's case consists of his own testimony, a tape recording made (unknown to defendants) by plaintiff of all conversation between him and defendants leading up to his arrest (pl's Ex. 4), and the testimony of both defendants under section 2055, Code of Civil Procedure. Careful consideration of the transcript, the exhibits and tape recording (which we have heard) reveals no substantial conflict in the evidence relative to probable cause. Defendants' testimony of their conduct, knowledge and beliefs and the circumstances at the time of their entry on plaintiff's premises stands uncontradicted; and nowhere in plaintiff's testimony of the tape recording is there any substantial conflict with defendants' testimony concerning what occurred on the premises just prior to and at the time of plaintiff's arrest. Thus, here controlling is the rule that '(W)here the evidence material to the issue of probable cause is without substantial conflict, it is a question of law for the court to decide whether there was probable cause for arrest. (Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876; Collyer v. S. H. Kress & Co., 5 Cal.2d 175, 54 P.2d 20; Gibson v. J. C. Penney Co., Inc., 165 Cal.App.2d 640, 331 P.2d 1057.)' (Cole v. Johnson, 197 Cal.App.2d 788, 793, 17 Cal.Rptr. 664, 666.) Therefore, inasmuch as probable cause constitutes a good and proper defense in a case of this kind (Collyer v. S. H. Kress & Co., 5 Cal.2d 175, 54 P.2d 20) and the existence of probable cause is herein a question of law (Aitken v. White, 93 Cal.App.2d 134, 208 P.2d 788), it must be conceded that if the evidence demonstrates probable cause for plaintiff's arrest, nonsuit was properly granted.

Viewing the evidence in a light most favorable to plaintiff (Cole v. Johnson, 197 Cal.App.2d 788, 17 Cal.Rptr. 664), "giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence" (Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768; Coates v. Chinn, 51 Cal.2d 304, 332 P.2d 289; Raber v. Tumin, 36 Cal.2d 654, 226 P.2d 574), and in accord with the rules relating to nonsuits, we summarize the plaintiff's case.

Defendants Harre and Martin are deputies sheriff working out of the Norwalk substation. Prior to May 27, 1960, neither deputy knew plaintiff or recalled ever having seen, contacted, or heard of him. While Harre had, three weeks previously, issued a routine traffic citation to plaintiff (pl's Ex. 8) and remembered looking in the automobile 'for containment of the vehicle' and seeing a male form, he neither saw nor talked with plaintiff nor had any personal contact with him; his then partner, deputy Omohundro, walked up to the driver's side of the vehicle and talked with plaintiff but Harre remained at the right rear of the radio car where he wrote the citation, recording thereon plaintiff's name, physical description and address from plaintiff's driver's license and other information brought back to him by Omohundro; and although on May 27 a subpoena for Harre's appearance in the Downey Municipal Court in plaintiff's traffic case lay in his box at the sheriff's station, in the early morning of that day when plaintiff was arrested Harre was unaware of the subpoena, that he had been subpoenaed, or that plaintiff was the same as the person for whom he had written the citation on May 2 (he did not discover this until later in the morning of May 27 after plaintiff's arrest). Martin, not having been with Harre and Omohundro on May 2, had never seen or heard of plaintiff.

Around midnight on May 27, 1960, Harre and Martin started on general routine patrol in a sheriff's radio patrol car in the area of Orange and San Antonio Drive in Norwalk. The night was clear and warm. Between 4 and 5 a. m., as they passed a dark office located at 14009 San Antonio Drive, both 'simultaneously' observed through a window facing San Antonio Drive 'a flare of light from within,' described by both as 'characteristic' of, and as if 'a match was being struck.' It was a light, not a flicker; it went out almost immediately. Both deputies knew from official reports and a crime pin map on the wall at the station that for some months prior, the reporting district in which 14009 San Antonio Drive is located, consisting of 1/6 of the city of Norwalk, had the greatest number of burglaries of any reporting district in the entire patrol area. The deputies, while familiar with the area which was combined business and residential, did not know to whom the office at 14009 San Antonio Drive belonged nor had they ever before stopped at that address; it was in fact an insurance office (pl's Ex. 1) and the front of the premises bore the word 'Insurance' in lagre lettering.

Faced with the foregoing, the deputies stopped 'to check the building' and 'for the purpose of investigation.' Martin backed up and parked in front; although other vehicles were parked in the vicinity, neither deputy noticed any particular automobile. Harre ran to the front of the building and Martin started around the north side to the rear. Harre approached the front window out of which he had observed the flare of light; it was dark inside, but upon seeing movement of a figure cross the window he looked in through the venetian blind. He saw nothing, but immediately a 'blinding flash of light' from within burst 'right in his face' causing him temporary blindness. 'Startled' and not knowing what it was, he 'instinctively' reached for the door and turned the handle; it opened, but he heard nothing. As he stepped inside a light suddenly went on and plaintiff was standing to the right of the door with his hand on the knob; plaintiff had turned on the light. He also had opened the door but neither deputy knew this. Plaintiff wore a sport shirt, slacks, shoes and a camera on a strap slung over his shoulder.

Meanwhile, Martin, midway to the rear, saw the light flash in Harre's face; he ran to the front and as he passed a window saw a light come on inside and plaintiff standing with his left land on the light switch and his right hand on the door knob. Neither deputy had 'any idea' what the flash of light was. Plaintiff had heard a noise, looked out the window, saw a face and took a picture of Harre's face at the window with his camera; he at no time told the deputies what he had done and, when asked by them what the flash was, retorted, 'That is may business.' The deputies did not connect the flash of light with a photograph, nor did they know what it was.

By the time Martin got to the front, the door was open and Harre was asking plaintiff what he was doing 'in this office at this hour of the morning,' and for his identification. He refused to identify himself but mentioned, without explanation, that he had run a tape and shown some movies; they noticed a screen in the room after they entered but at no time either heard or saw a film being run; and while certain photographs (pl's Exs. 2, 3) reveal various electrical equipment scattered about the room enclosed in a cabinet, on the floor, on a table, et cetera, the deputies neither recalled seeing a projector or recorder nor recognized any of the equipment as such. Harre heard some noise in the background which might have been a radio. Plaintiff refused to give them any identification. All testimony and the photographs in evidence disclose the premises to be an office; it was untidy and papers were strewn around. While Harre and Martin talked to him, plaintiff 'confined himself to the immediate area' and did not move around much although after talking with him a few minutes they saw him plug in some sort of an apparatus and put a microphone on a table, but at that time they failed to recognize any object as a tape redorder and did not realize that the conversation was being taped. He, in fact, turned on his recorder and taped the entire conversation from then on between himself and the deputies (pl's Ex. 4). While they noticed some wheels 'moving' they paid no attention to them and neither deputy knew that the conversation was being recorded.

Ten or twelve separate times the deputies asked plaintiff for identification, but at no time did he ever tell them his name or give them anything to establish his identity, although at all times he had on his person a wallet containing his driver's license. Plaintiff appeared to be 'very apprehensive and very nervous,' he 'seemed to be anticipating something, he was very fidgety, looking around the room' and 'was unsettled for some reason.' The deputies, during the entire time, knew neither plaintiff's identity to whom the office belonged, nor his business there. About these matters they repeatedly questioned plaintiff; at one phase he refused to answer...