McGillivray v. Siedschlaw

HENDERSON, Justice

(concurring specially).

I am in accord with the majority opinion but desire to express separate and additional reasons in the result.

This is an action of false imprisonment. It is founded in tort.

False imprisonment is the unlawful restraint of one’s physical liberty by another. Tredway v. Birks, 59 S.D. 649, 242 N.W. 590.

Personal liberty is the primary right in an action for false imprisonment. It is “the right of freedom of locomotion — the right to come and go or stay, when or where one may choose.” Cullen v. Dickenson et al., 33 S.D. 27, 31, 144 N.W. 656, 657.

In this case, the question before us is as to whether or not the appellant, a young woman and student at a vocational school in Watertown, was unlawfully imprisoned in the Codington County Jail by a highway patrolman for a period of three days; and, also, as to whether or not he was aided and abetted by her roommate, one Sheila Larson, in this alleged unlawful imprisonment.

From reviewing the record, I am convinced that the appellant was detained against her will and that this detention was totally unlawful. Furthermore, I would hold that Siedschlaw and Larson are factually and legally responsible for the three days spent in the Codington County Jail. This appears to me to be a classic case of false imprisonment of an innocent citizen by a foolish, imprudent, yet experienced, and certainly overzealous law officer of this state. His unlawful acts were triggered and initiated by the defendant, Larson, with whom he acted in consort.

The essential elements of false imprisonment are: “(1) the detention or restraint of one against his will, and (2) the unlawfulness of such detention or restraint.” 32 Am.Jur.2d, False Imprisonment, § 5, p. 77. False imprisonment contains two elements, namely, detention or restraint of a person, and unlawfulness of such restraint or detention. Catencamp v. Albright, S.D., 251 N.W.2d 190.

The officer, Siedschlaw, arrested this young woman on a drug possession charge without a warrant and without probable cause. The drug turned out to be a vitamin pill. The evidence never established that she was in possession of a pill or drug. Vitamin pills are in everyday use by South Dakotans and are not a controlled substance or drug.

Reviewing the record herein, it is obvious that Officer Siedschlaw had no warrant of arrest.

SDCL 23-22-7¹ provides:

A peace officer may, without a warrant, arrest a person:

(1) For a public offense committed or attempted in his presence;

(2) When the person arrested has committed a felony, although not in his presence;

(3) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it;

(4) On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.

Thus, this officer could only arrest, under SDCL 23-22-7(3), “[w]hen a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.” All parties, under the undisputed record as regards the existence of a felony in this case, concede that no felony was committed by appellant.

Before a peace officer can make an arrest without a warrant, he must be able to show that one of the emergencies permitting such arrest by our statute has arisen. Raymond v. Corrigan, 37 S.D. 609, 159 N.W. 131. A pill on a rug in an apartment shared jointly by several school girls is not an emergency situation to my way of thinking. Furthermore, there was no reasonable belief that the appellant ever possessed the pill (assumed to be a drug), bought the pill, or ever used it. No scientific or reasonable effort was made to determine if the pill was a controlled drug. Only Larson had the pill and the officer acted upon Larson’s conclusions. Even if the pill, hypothetically, was a drug, there was no basis upon which to believe the appellant possessed or owned the pill. It was on the rug on the floor in a jointly shared apartment. How, then, could the officer have “reasonable” cause under state statute — or—“probable” cause under the fourteenth amendment of the U.S. Const, to believe that the appellant had committed a felony? The officer acted on rank hearsay of Larson and an uncorroborated belief that the pill was a drug.

As one considers the Raymond v. Corrigan case, supra, and ponders on the subject of “emergency,” a reasonable mind would wonder: where is the “emergency” in the instant case where the officer waits for eight days from the time he received the pill until he arrested the appellant without a warrant? It is inescapable: there was no emergency. During those eight days, a reasonable man in law enforcement could have obtained a search warrant and a warrant of arrest. Nothing precluded him from doing so; instead, he proceeded outside of the law and arrested this young woman without a warrant. When he did so, he acted at his own peril. In this writer’s opinion, it is this kind of police behavior and law enforcement that our courts should thwart lest this nation turn into a police state. Our freedoms, guaranteed under the Bill of Rights, must be safeguarded and preserved by a vigilant judiciary, one inch and one case at a time. Otherwise, they are eventually eroded into oblivion.

I should like to cite art. VI, § 11, of the S.D. Const, as authority for my position that this young woman has been wronged in this case: “The right of the people to be secure in their persons * * * against unreasonable * * * seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing * * * the person or thing to be seized.” Mind you, her person was seized in her apartment at 10:30 p. m., after being awakened from sleep. The appellant’s case is rooted in our Bill of Rights.

I would hold that the trial court did err in submitting the issue of probable cause to the jury. The facts reveal that Larson accused the appellant of stealing fifty dollars from her; that shortly after this accusation, Larson contacted the other roommates and suggested to them that the appellant was a user of drugs; that Larson said she found a pill on the rug and told the other girls about the pill; that Larson and three of the girls went to the landlady and the landlady expressed that they should forget it; that Larson did not forget it and contacted the defendant, Siedschlaw, he being a customer in a cafe where Larson worked as a waitress; that Siedschlaw said “it was some kind of drug” but never sent it to the University of South Dakota Laboratory for a chemical analysis; that Siedschlaw said with reference to the appellant being suspi-cioned of drugs that “we probably would check it out thoroughly by picking her up”; that Larson initiated all conversations with the other girls regarding the drugs; that the other girls were shocked when the defendant, Larson, mentioned that the appellant was on drugs; that Siedschlaw’s instructions from his superiors were that if he ran a field test on a pill, that it was to be thereafter sent to the state laboratory in Vermillion for further analysis; that Siedschlaw admitted that he was the arresting officer on the night of July 21, 1974, and was accompanied by one other South Dakota Highway Patrolman and two other police officers of the Watertown Police Department, all of whom entered this apartment with the three girls’ permission but not the permission of the appellant; that it was Larson who met Siedschlaw and the other three officers at the door; that Siedschlaw advised the three girls, while the appellant was asleep, that he wanted to see if he could find some controlled drug or substance on the premises; that Larson went into the bedroom and came out and handed the appellant’s purse over to one of the law enforcement officers (the appellant was still sleeping); that Siedschlaw thereafter confiscated personal letters belonging to the appellant and confiscated a Buddha-type statue and two bottles of musk oil, one clear and one colored; that Siedschlaw had no search warrant at the time of taking this personal property; that Siedschlaw had the audacity, without any type of checking, to then advise the awakened appellant that the Buddha-type statue and the two bottles of musk oil were controlled substances and that she would have to come to the police station; that Siedschlaw did not interview the appellant at the police station and Siedschlaw told the state’s attorney that he had booked her and that that was where she was going to stay, namely incarcerated; that absolutely no field tests on the confiscated personal property were run, which included other confiscated pills, on the night that he arrested her; that the pills confiscated on the night of the arrest were vitamin pills and of the same description and substance as the original pill found on the rug which began this classic case of false imprisonment; that Siedschlaw did nothing to establish the appellant’s innocence nor require her to take any kind of a lie detector test although she was willing to take a lie detector test; that there was absolutely nothing in the letters to arouse any suspicion involving drug use; that two of the officers that accompanied Siedschlaw testified that they saw nothing unusual about the appellant on the night of the arrest and that there was nothing to make them think that the appellant was on drugs that night; that Larson went to Siedschlaw’s home on one occasion and to the police station on the night appellant was arrested to find out what was going to be done to appellant as regards appellant’s alleged drug involvements; that the state’s attorney of Coding-ton County, after speaking with appellant, guessed that there was something wrong and suggested to Siedschlaw that he should consider letting the young woman go out of incarceration by releasing her on her own recognizance; that Siedschlaw did not inquire into or ascertain the credibility or reliability of Larson; that Siedschlaw refused the suggestion of the state’s attorney’s office and indicated that he had already booked her and that she had been arrested and that she was going to stay in jail; that three of the girls told Siedschlaw that locking up the appellant was a mistake and that appellant should be released; that Siedschlaw refused to do so; that all of the pills hereinbefore mentioned were purchased by the appellant’s mother and were vitamin pills; that the items confiscated by the officer were never returned to the appellant; that appellant had to remove her clothes before a police matron, who searched her and brought her a pair of prison coveralls, whereupon she was placed in a cell where some man had just been removed to make a place for her, which had only a mattress and a stool; she was kept in this jail approximately three days, fingerprinted, and thereafter charged with feloni-ously and knowingly possessing a controlled drug or substance; the case, when it finally received judicial attention, was dismissed.

Appellant’s motion for a directed verdict against the officer as a matter of law should have been granted. The trial court failed to instruct the jury that the officer’s arrest was invalid and unlawful, as a matter of law, and that the jury had to return a verdict in favor of appellant and against Siedschlaw. Anderson v. Sager, 8 Cir., 173 F.2d 794; Wilson v. Gutschenritter, 185 Neb. 311, 175 N.W.2d 282. I would thusly remand for a jury determination of damages against Siedschlaw.

An individual directing or requesting a peace officer to make an illegal arrest is liable for false imprisonment. Tredway v. Birks, supra. Also, see Burkland v. Bliss, 62 S.D. 91, 252 N.W. 25, holding that all who participate in or assist in commission of false imprisonment are joint tort-feasors, regardless of whether conspiracy has been entered into. Further, see Huskinson v. Vanderheiden, 197 Neb. 739, 742, 251 N.W.2d 144, 146, holding that “[a] private citizen who by affirmative direction, persuasion, or request procures an unlawful arrest and detention of another is liable for false imprisonment.”

In examining the liability of Larson, the roommate, the above-recited facts should be considered as the instigation of appellant’s arrest and demonstrate how Larson directed and requested a police officer to make a warrantless arrest. The law is rife in this state that a verdict supported by sufficient, credible evidence shall not be disturbed by the reviewing court. See Kredit v. Ryan, 68 S.D. 274, 1 N.W.2d 813, affirming this age-long doctrine and which case concerned directly the tort of unlawful imprisonment.

In my opinion, there was sufficient and substantial evidence in the record to sustain the verdict against roommate, Larson. The jury heard the testimony given and observed the conduct and demeanor of the witnesses. In examining the record, I have concluded that the trial court erred in granting Larson’s motion for judgment n. o. v. and would therefore reverse the trial court’s determination and require the trial court to reinstate the jury award of $5,000 unto appellant.

In this decision, I take comfort in and cite with approval, five unlawful imprisonment decisions in the history of the court. Tredway v. Birks, supra; Cullen v. Dickenson, supra; Catencamp v. Albright, supra; Raymond v. Corrigan, supra; and Kredit v. Ryan, supra.

I do not break with the precedent found in State v. Klingler, 84 S.D. 466, 469-470, 173 N.W.2d 275, 278-279, or Klingler v. United States, 8 Cir., 409 F.2d 299, 303. Nor do I fault the principles in State v. Gerber, S.D., 241 N.W.2d 720. In State v. Klingler, supra, there was an armed robbery of a service station and the service station attendants furnished a description to officers of the robber and getaway car, whereupon the officers made a warrantless arrest. In State v. Gerber, supra, a magistrate was involved who relied upon an affidavit and corroboration to determine probable cause. In the case at bar, Officer Siedschlaw acted without objectivity, did not have reasonably trustworthy information, and did not act as a man of reasonable caution. No felony was committed and Siedschlaw had no reasonable cause to believe this young woman had committed a felony.

If we permit officers of this state to arrest people without warrants for a felony under circumstances as depicted in this case, we are inviting an untrammeled license for officers to do as they please. No citizen shall be safe, if this officer’s actions are legally blessed, from an intrusion into his home and subsequent incarceration; for indeed, if a brown pill is found on the rug on the floor of his home or apartment, albeit a vitamin pill, he is subject to arrest for a felony.

1 . SDCL 23 22 7 was repealed by S.D.Sess.L. ch. 178, § 577, effective July 1, 1979.