Garrett v. City of Bloomington

*96 DISSENTING OPINION

RATLIFF, Presiding Judge,

dissenting.

My disagreement with the majority opinion is two-fold. First, the case was decided on motion for summary judgment upon an issue not susceptible of summary disposition. Second, the arrest which forms the basis for this action was a warrantless arrest for a misdemeanor not committed within the presence of the arresting officer.

Courts must exercise caution in considering summary judgments to ensure the parties of their right to a fair determination of genuine issues. Connell v. American Underwriters, Inc. (1983), Ind.App., 453 N.E.2d 1028 ; Vanco v. Sportsmax, Inc. (1983), Ind.App., 448 N.E.2d 1198 . Summary judgment is not appropriate to resolve questions of credibility or weight of evidence or conflicting inferences which may be drawn from undisputed facts. Bell v. Northside Finance Corp. (1983), Ind., 452 N.E.2d 951 . Neither can the summary judgment procedure be used as a miniature trial to resolve factual disputes. Moll v. South Central Solar Systems, Inc. (1981), Ind.App., 419 N.E.2d 154 . Summary judgment generally is not appropriate where the reasonable man standard must be applied. Doe v. Barnett (1969), 145 Ind.App. 542 , 251 N.E.2d 688 . Even were the court to surmise that the non-moving party would be unlikely to prevail at trial, granting of summary judgment would not be proper. English Coal Co. v. Durcholz (1981), Ind.App., 422 N.E.2d 302 , trans. denied.

Probable cause for arrest is demonstrated by facts and circumstances known to the arresting officer which would warrant a man of reasonable caution and prudence in believing that the accused had committed or was committing a crime. Gomez v. Adams, Ind.App., 462 N.E.2d 212 , trans. denied. Thus, the questions of the existence or absence of probable cause and the reasonable belief (good faith) of the arresting officer are factual determinations for the trier to make from a consideration of all the evidence. Gomez. Such determination is not one to be made upon motion for summary judgment. Further, the reasonable belief of the officer depends upon an application of the reasonable and prudent person test, a matter not appropriate for determination on - summary - judgment. Doe. The majority notes the trial judge apparently relied upon affidavits by the arresting officers asserting they in good faith believed they were acting constitutionally. 1 Such an important question cannot be resolved upon the self-serving statements of the officers involved. Indeed, such affidavits perhaps should not have been considered since they may not have presented any admissible evidence but only self-serving declarations and conclusions of the affiants. See Indiana Rules of Procedure, Trial Rule 56(E); Interstate Auction, Inc. v. Central National Insurance Group, Inc. (1983), Ind.App., 448 N.E.2d 1094 . Therefore, in my view, it was improper for the court to determine these vital issues on summary judgment. Nothing short of a full trial will suffice.

Next, the warrantless arrest for a misdemeanor presents a serious problem. It is erystal clear that an officer may arrest for a misdemeanor without a warrant only if the misdemeanor is committed in the officer's presence. Indiana Code section 35-33-1-1; Works v. State (1977), 266 Ind. 250 , 362 N.E.2d 144 ; Robinson v. State (1925), 197 Ind. 144 , 149 N.E. 891 ; Hart v. State (1924), 195 Ind. 384 , 145 N.E. 492 .

Here, the misdemeanor for which Garrett was arrested was not committed in the view of the arresting officer. The arrest was upon a charge of telephone harassment, Indiana Code section 35-45-2-2, based upon the laughing box incident. Record at 180. The state, in a somewhat circuitous argument, says the officers were present when Garrett was on the telephone *97 and made abusive remarks to the dispatch er. However, that was not the basis of the arrest. Neither was that call initiated by Garrett. The majority opinion relies upon Brown v. State (1982), Ind., 442 N.E.2d 1109 , to support its conclusion that the offense was committed in the presence of the officers. In Brown, our supreme court stated that a police officer may arrest for a misdemeanor committed within his view and that the observance of the misdemean- or may be part of the collective information known to the law enforcement organization. Brown, 442 N.E.2d at 1115 . But the facts in Brown are significantly different from those in this case. In Brown, a police officer actually did observe the commission of the misdemeanor and relayed the information to another officer who made the arrest. No such facts exist here. All the dispatcher's knowledge was that she received a telephone call in which someone placed a laughing. box recording on the transmitter and that a trace by the telephone company revealed the call came from Garrett's phone. She did not observe any one place the call and did not know who was present at the location of the phone. 2 This is a far ery from Brown where one officer actually observed the commission of the offense and advised another officer who made the arrest. 3

It has been said by some authorities that a warrantless arrest for a misdemeanor not committed within the view of the arresting officer cannot be justified on the basis of the alleged good faith of the officer or that the officer had reasonable cause for believing the offense had been committed. 32 Am.Jur.2d, False Imprisonment, § 98 (1982). According to one view, a warrant less arrest for a misdemeanor is made at the peril of the person making the arrest, and good faith is no excuse if an innocent person is arrested without a warrant on a misdemeanor charge. Gill v. Montgomery Ward & Co. (1954), 284 A.D. 36 , 129 N.Y.S.2d 288 , 49 A.L.R.2d 1452 . Other courts have taken a more moderate position. The rule has been stated as follows:

"In a suit for damages for false arrest for a misdemeanor, the plaintiff must prove that the arrest was made without lawful authority. Good faith on the part of the arresting officer is no defense, but he cannot be found liable so long as he has probable cause to believe a misdemeanor is being committed in his presence when he makes the arrest."

Meyers v. Edwards (1971), La.App., 256 So.2d 337, 339 .

Legal justification is established, under Maryland law, if in making an arrest for a misdemeanor, a police officer has reasonable grounds to believe that conduct he has observed amounts to a misdemeanor. Thus, legal justification may be found only where the person making the arrest has legal authority to do so. Shaw v. May Department Stores Co. (1970), D.C.App., 268 A.2d 607 . See also State v. Whitney (1978), 176 Ind.App. 615 , 377 N.E.2d 652 , trans. denied (where police officer was not in uniform, not wearing badge, and not driving police car as statute then required for making a traffic arrest, arrest was unlawful and could be construed to constitute a false arrest).

In Meyers, the officer observed persons drinking beer in the plaintiff's place of business on Sunday-a violation of the Sunday closing law. The officer in Show saw the plaintiff leaving the store with packages for which she had not paid. Thus, in both Meyers and Shaw, the arresting officers observed activity which created a reasonable belief that a misdemeanor had been committed in the officer's view.

*98 Adopting the view expressed in Shaw and Meyers, in order to avoid liability for false arrest, the officers had to have observed conduct which reasonably led them to believe a misdemeanor was being committed within their view. At the very least, this involves a factual determination to be made from a consideration of all the evidence and requires application of a reasonable person standard, neither of which determinations are appropriate for summary judgment.

For all of the foregoing reasons, I respectfully dissent.

. Although the trial court referred to such affidavits, I do not find them in the record on appeal. Consequently, the exact content of such affidavits is unknown. Nevertheless, it seems clear that the self-serving statements of the officers alone cannot form the basis for establishing their good faith.

. Evidence merely proving that a call originated from a telephone assigned to defendant without other evidence showing defendant had sole access to the use of that line or some reason or motivation for making the call is insufficient to support conviction for telephone harassment. Zinn v. State (1981), Ind.App., 424 N.E.2d 1058 .

. Here, Garrett filed an affidavit in which he specifically denied being present when the alleged harassing call was made and denied making the call. This is disputed by the deposition of one of Garrett's friends, thus raising a factual issue which could not have been resolved on summary judgment.