Wilson v. Gutschenritter

• Decision Date: 13 March 1970
• Docket Number: No. 37347,37347
• Parties: Lawrence WILSON, a minor, by his father and next friend, James R. Wilson, Appellant, v. Martin GUTSCHENRITTER and John Wiley, Appellees. James R. WILSON and Rose Wilson, Appellants, v. Martin GUTSCHENRITTER and John Wiley, Appellees.
• Court: Nebraska Supreme Court

Page 282

175 N.W.2d 282

185 Neb. 311

Lawrence WILSON, a minor, by his father and next friend, James R. Wilson, Appellant, v. Martin GUTSCHENRITTER and John Wiley, Appellees.

James R. WILSON and Rose Wilson, Appellants, v. Martin GUTSCHENRITTER and John Wiley, Appellees.

No. 37347.

Supreme Court of Nebraska.

March 13, 1970.

Syllabus by the Court

1. A law enforcement officer may arrest, without process, a person who he has reasonable cause to believe is guilty of a felony and may detain him for a reasonable time until a warrant can be procured. Such officer is justified in so doing even though he has no personal knowledge of the guilt of the accused if the officer in good faith acted upon information received from others upon whom he had reason to rely although it should be subsequently discovered that the one so arrested was not guilty.

2. When the evidence is conflicting, the question whether the officer had reasonable ground for believing that the person arrested had committed a felony is for the jury under proper instructions. But when the facts are admitted or undisputed, probable cause is a question of law for the court.

3. Probable cause is a reasonable cause of suspicion, supported by facts and circumstances of such a nature as to justify a cautions and prudent person in believing that the accused was guilty.

4. In an action for false imprisonment against an officer for arresting without a warrant, the reasonableness of plaintiff's detention is a question for the court where there is no conflict in the evidence as to the length of time and the circumstances under which the plaintiff was held.

5. Where one is properly arrested by lawful authority, even though without a warrant, an action for false imprisonment cannot be maintained.

6. A police officer may use such force as is reasonably necessary to perform his official duties in the enforcement of the law. The exercise of force in excess of that which is reasonably necessary under the circumstances may give rise to a charge of assault and battery.

Padley & Dudden, Ogallala, for appellants.

Smith Brothers, Lexington, for appellees.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

CARTER, Justice.

This is an appeal from judgments entered in two actions for false arrest and related issues growing out of the same transaction which were consolidated for purposes of trial. The trial court withdrew from the consideration of the jury all issues except the issue of assault and battery in the case brought by James R. Wilson as father and next friend of Lawrence Wilson, a minor. On the latter issue, the jury returned a verdict for the defendants. The plaintiff or plaintiffs in each action have appealed to this court.

On October 9, 1967, one Larry Wilson, shortly before 3 p.m., robbed the Elm Creek State Bank at Elm Creek, Nebraska, at gun point. The robber was recognized by an employee of the bank who gave his name and description immediately to law enforcement officers. The information given as to the identity of the robber was substantially as follows: Larry Wilson, 25 years of age, 5 feet 10 inches in height, 165 pounds in weight, dark complexion, dark eyes, black hair, wearing a black hat, tan jacket, black gloves, and believed to be living in Lexington or Cozad, Nebraska. This information was immediately relayed to the Nebraska State Patrol radio station at Holdrege which immediately alerted other stations, state patrolmen, and other law enforcement officers in the area. The bank robber was later apprehended at Arapahoe, Nebraska.

The plaintiff, Lawrence Wilson, commonly known as Larry Wilson and whom we shall hereafter refer to as Larry, resided with his parents, James R. Wilson and Rose Wilson, in Lexington, Nebraska. At 3:22 p.m., the patrol station at Holdrege requested the Lexington police department to obtain information as to any vehicle registration for Larry Wilson. The defendant, John Wiley, a member of the Lexington police force, called the county treasurer's office and found that a Larry Wilson residing in Lexington was the registered owner of a 1965 red Pontiac, hardtop coupe , bearing Nebraska license number 18--A766, which information was immediately given to the patrol station at Holdrege. About 3:30 p.m., the Lexington police were requested to call the defendant Martin Gutschenritter back on duty as state patrolman which was immediately done. Gutschenritter called Sergeant Morrissey at the Holdrege patrol station and informed him that he was proceeding to the home of Larry Wilson in Lexington and asked for confirmation as to whether Larry Wilson was the person who robbed the bank. The description of the robber was given to him and he was told the Larry Wilson was the man. On the way to the Larry Wilson home, he was joined by Wiley and the two proceeded to the Wilson residence in Gutschenritter's patrol car.

On arriving at the Wilson residence, the patrol car was parked partly in the driveway and partly in the street. Gutschenritter, followed by Wiley, went to the entrance to the home. The door was open but the storm door was closed. Gutschenritter could see Larry through the glass portion of the door. Gutschenritter opened the door and asked him if he was Larry Wilson. Larry answered that he was. He asked Larry where he had been the last hour and Larry replied that he had just returned from Elm Creek. Gutschenritter thereupon drew his gun and, without a warrant, placed Larry under arrest for the robbery of the Elm Creek bank. Larry was handcuffed, was cooperative, made no resistance, and went with the officers to the patrol car.

There are conflicts in the evidence as to what occurred during the arrest. Larry and his mother testified that both officers came into the house without invitation drew guns which they pointed at Larry, handcuffed him, and dragged him out of the house, across the front yard, and into the patrol car. Gutschenritter testified that he opened the door, stood in the doorway, asked the questions hereinbefore recited, had his gun out of its holster, and that Larry came out on the porch where he was arrested and handcuffed and taken to the patrol car. His testimony is that Larry was cooperative, made no resistance, and walked between the officers to the patrol car. He testified that Larry was in his stocking...