*1 McGILLIVRAY, Maribeth Plaintiff Appellant,
Riсhard SIEDSCHLAW and Lar- Sheila son, Respondents. Defendants
Nos. 12261.
Supreme Court of South Dakota.
Argued June 3,May
Decided
Rehearing Denied June
law,
patrolman,
highway
arrested
state
charge
drug possession
on
without a
her
cause.
probable
and without
warrant
alleged
further
that Larson aid-
McGillivray
imprisonment by
and
the false
ed
abetted
mat-
instigating the unlawful arrest. The
before a
which rendered
ter
tried
against
and
a verdict in favor of Siedschlaw
$5,000 general
the amount of
Larson in
damages.
grant
court did not
The trial
for
McGillivray’smotion
a directed verdict
judg-
her
motion for
verdict,
notwithstanding or her
ment
for
new trial. The
alternative motion
did, however,
mo-
grant
trial
court
the ver-
notwithstanding
fоr judgment
tion
court entered a
Accordingly,
dict.
trial
and a
dismissing Siedschlaw
judgment
setting
aside the
dismissing the action
against Larson and
McGillivray appeals from
against Larson.
and remand.
judgments. We reverse
both
that the
McGillivrayfirst contends
granting
motion
in not
her
trial court erred
be
for directed verdict
cause the arrest was made
illegal as matter of law.
cause and was
liability for false
Regarding Siedschlaw’s
Protsch,
Mumford,
Sage &
Pardy,
T. R.
ar
imprisonment, the issue is whether
Howard,
appellant.
Pardy,
plaintiff
and
It is undis
McGillivray
rest of
was lawful.
Hackett, Austin,
&
W. A.
Hinderaker
made
puted that the arrest
Hackett, Watertown,
re-
for defendant and
warrant. Without
without a
spondent Siedschlaw.
only
had in
if
arrest could
valid
and Siedschlaw
fact been committed
Sherwood,
R.
D.
Fred Moulton and S.
believing
McGil
cause for
reasonable
Moulton, Clark,
Sherwood
for defendant
&
23-22-
felony. SDCL
livray committed the
respondent Larson.
and
cause
of reasonable
7(3).
requirement
This
DUNN,
(on reassignment).
Justice
with the
equated
held to be
has been
requirement
proba
Fourth Amendment’s
brought
This case involves
suit
as follows:
ble cause
McGillivray for false
She
where the facts
exists
“Probable cause
and
alleged
defendants
the officers’
within
consort,
and circumstances
Larson, acting in
caused her unlaw-
rea-
knowledge,
of which
possession
ful arrest and
information, are suf-
trustworthy
Specifically,
sonably
a controlled
substance.1
a belief
warrant
alleged
ficient in themselves to
McGillivray
that Officer Siedsch-
money from the
McGillivray
unable to borrow
bank
were
and arrested
awakened
morning.
July 21,
following
McGilliv
approximately
p.
for bail until the
10:30
m. on
July
ray
jail
subsequently
fingerprint
She was
booked and
was released
week,
searched,
following
ed, stripped
clothing
McGil
in the afternoon. The
court,
Dakota,
livray
Watertown,
appеared
jail
her case
taken to a
South
cell
summarily
no evi
containing
there was
McGil
dismissed because
mattress and a stool.
livray’s parents
morn
were contacted the next
dence
her.
Madison,
Dakota,
at 11 m. in
South
a.
by a man of
reasonable caution that a
period
crime has
time,
been or is being
attempt
committed.”
verify
he did
the infor-
States,
Cir.,
Klingler v. United
him,
given
mation
such as the room-
F.2d
name, description, activities,
mate’s
or the
pill’s
content. We
con-
true chemical
must
also,
Klingler,
See
State v.
84 S.D.
meager
clude that on the basis of the
466, 469-470,
278. It is
before
could not determinе
clear that
reasonable
*3
that a
had in fact been committed
objec
cause must be
measured
an
and that the roommate committed the felo-
1968,
Ohio,
tive
Terry
standard.
v.
392 U.S.
ny.
1,
1868,
88
good
S.Ct.
20 L.Ed.2d
Mere
889.
part
faith on the
arresting
officer is
regard
With
to informant Larson’s credi-
enough.
Ohio, 1964,
not
Beck v.
379 U.S. bility,
pointed
we have
out that
to
the test
89,
223,
85
Further,
S.Ct.
After motion McGillivray’s regard With vitamins, accompa- pills were those directed expressed during the arrest nied Siedschlaw are undis an officer when facts before something did not seem concern that their present in the puted, as McGillivray did not seem right and that to whether an arrest determination sug- drugs. attorney also be on The state’s for the question of law legal illegal is a McGillivray gested to 1949, Cir., Sager, court. Anderson recognizance. on her own should be released Gutschenritter, 1970, 794; F.2d Wilson already replied that she had We hold 185 Neb. going stay that she was been booked аnd before Siedsch undisputed that on jail. after the McGilliv- day cause, was insufficient law there *4 similar ray’s mother showed Siedschlaw illegal as a was therefore the arrest were noth- belonged that to her which in court erred law and the trial matter of pills. than vitamin verdict more motion for directed granting definitely McGillivray responded that was the officer. drugs Ad-
high on
when she was arrested.
contends that
McGillivray further
girls who
ditionally, Larson and the other
granting
Larson’s
trial court erred
to
McGillivray
lived with
went
Siedschlaw’s
notwithstanding the
motion for
They
made
they
home.
admitted that
had
Lar
verdict
jury
that the
verdict in
accusing McGillivray
a
and stat-
mistake
It
by the evidence.
supported
son
drugs
that
had never
ed
she was not on
by affirma
private
citizen
clear that
that he had
used them.
stated
or
action,
request assists
persuasion, or
tive
McGillivray
drug party
picture of
and detention
arrest
in an unlawful
abets
pills were
insisted to the
imprisonment.
is liable for
another
drugs.
indeed
had no basis
S.D.,
1977,
251
Catencamp
Albright,
v.
McGillivray
fact
for his statements
Bliss, 1933,
190;
62
Burkland v.
drugs” when she
definitely high
“was
Birks,
25;
91,
v.
Tredway
252 N.W.
S.D.
arrested,
picture
he “had
or that
590;
v.
1932,
649,
Culver
242 N.W.
59 S.D.
McGillivray
drug party,”
490;
at a
or that
398,
1920,
179 N.W.
Burnside,
43 S.D.
True,
these
“pills
drugs.”
were indeed
Vanderheiden, 1977, 197 Neb.
Huskinson
Am.Jur.2d,
statements were made
144;
False
739,
32
arrest,
failure of
emphasize
Regarding Lar
p. 98.
Imprisonment, §
cursory
ap
imprisonment,
make even a
investi-
it
liability
Siedschlaw to
for false
son’s
McGillivray prior
his
instructed
gation
properly
to
pears
jury
cause,
pri
disregard
concept
which a
for the
under
as
the circumstances
to
making
arrest
objectivity
may
be liable for false
person
and his lack of
vate
directing,
fact,
requesting,
completely
imprisonment
inaccurate
his
law
arrest
juncture
instigating
unlawful
or
an
statements at this
and defensive
that Larson
officer.2
lend
to the claim that Siedschlaw
credence
Instruction 16 reads as follows:
arrest
is not made
the officer of
carry
request
out the
own volition but made
private per-
circumstances
“Under certain
may
person.
person
held
such
A
also be
imprison-
may
son
be liable for false arrest
imprisonment
liable for a false arrest
directing
instigating
requesting,
ment for
plaintiff
gives
where
information
by a
officer.
arrest
law enforcement
no
fact she has
liability
committed
crime when in
arrest
incurred for false
“There
no
knowledge
that a crime
person merely
of such fact or
gives
to an offi-
if a
information
tending
been committed.”
a crime has bеen
to show that
cer
peace
pertinent part
solely
fol-
as
assist a
Instruction
reads
committed or if she acts
investigation.
charge
officer in
of an
lows:
proving
plaintiff
“However,
liability
“The
has the burden
may
there
be
a false
following
able to recover
person
issues
so induce an
of a
arrest where
acts
Larson:
it can be said
the Defendant
officer to make
HENDERSON, J.,
court, however,
specially.
indeed liable. The trial
concurs
granted judgment notwithstanding the ver
MORGAN,J., dissents.
favor,
dict in
presumably
FOSHEIM, J., deeming
disquali-
himself
fact that if the officer was not liable and
fied,
participаte.
did not
the arrest
private
was valid then the
citizen
could not be liable either. To reverse the
HENDERSON,
(concurring spe-
Justice
v.,
substantial,
judgment n. o.
some
credible
cially).
evidence must be found in the record in
majority opinion
I am in accord with the
support of the verdict. We will view that
express separate
but desire to
and addition-
light
record in a
most favorable to the
al reasons in the result.
giving
McGillivray the benefit of
imprisonment.
This is an action of false
every
Lytle
available
Morgan,
inference.
It is founded in tort.
359;
S.D., 270
Meylink
v. Min
Co., 1938,
Co-op.
nehaha
Oil
False
is the unlawful re-
N.W. 161.
physical liberty by
straint of one’s
another.
Birks,
Tredway
242 N.W.
In examining the
there is 590.
substantial
portrays
evidence that
Larson
liberty
primary right
Personal
is the
in an
suspecting
accusing
McGillivray
It is “the
action for false
her,
stealing money
finding
right
right of freedom of locomotion—the
getting the other
roommates concerned
go
stay,
to come and
when or where one
it, refusing
about
landlady,
listen to the
al.,
may choose.” Cullen v. Dickenson et
*5
nurse,
registered
forget
she
144 N.W.
it, giving
about
pill
the
to
stat
ing that
drugs,
her roommate was on
case,
direct
question
In this
the
before us
is
something
Siedschlaw to do
about the
appellant,
whether or
young
nоt the
a
pill,
meeting
and
with Siedschlaw and the woman and student at a vocational school
attorney
state’s
preceding
Watertown,
afternoon
unlawfully imprisoned
was
fact,
the arrest.
Siedschlaw testified
in the Codington County
by highway
Jail
a
that it
patrolman
was because
meeting
and,
of this
with her
period
days;
for a
of three
also,
that he decided to make the search and the
as to whether or not he was aided and
arrest. The
liability
by
roommate,
of Larson’s
abetted
one
Lar-
Sheila
son,
went
jury,
jury
in this alleged
unlawful
against her. We hold that the trial court
reviewing
From
the
I am con-
erred in granting
judgment
the motion for
appellant
vinced that
the
was detained
n. o. v.
because the
against her will
and that
detention was
supported
substantial,
Larson was
by
credi
Furthermore,
totally unlawful.
I would
ble evidence in the record.
hold that Siedschlaw and Larson are factu-
ally
legally responsible
and
for the three
The trial court
in granting
erred
days spent in
Codington County
the
Jail.
motion for
n. o. v.
denying
and in
appears
This
to me to be a classic case of
the motion for
directed verdict
imprisonment
of an innocent citizen
judgments
Siedschlaw. The
of the trial
foolish,
imprudent, yet experienced,
a
court are therefore reversed and the matter
certainly
overzealous law
officer of
is remanded
the
trial court for a determi-
triggered
state. His unlawful acts were
damages
nation of
against Siedschlaw.
defendant, Larson,
initiated
the
WOLLMAN,
J.,C.
concurs.
with whom he acted in consort.
1. That
the Plaintiff was arrested
and im-
4. The extent and duration of Plaintiffs
in-
suffering;
prisoned;
instigated
2. That
damages.”
the Defendant Larson
the
amount
The
of her
or
imprisonment
defined;
as herein
illegal
3. That
the arrest was
or without
cause;
pill
rug
jointly
on
imprison-
The
of false
shared
essential elements
“(1)
ment arе:
the
or
emergency
detention
restraint of
several school
not
will,
(2)
the unlawful-
one
his
my
thinking. Further-
way
situation to
ness of such detention or restraint.”
32 more,
reasonable belief that
there
no
Am.Jur.2d,
p.
Imprisonment,
False
§
pill (as-
possessed the
appellant
ever
elements,
False
contains two
bought
drug),
sumed to be a
or ever
namely,
person,
detention or restraint of a
used
No
or reasonable effort
it.
scientific
unlawfulness of such restraint
de-
pill
was made to determine if the
S.D.,
Catencamp Albright,
tention.
drug. Only
pill
had the
controlled
Larson
N.W.2d 190.
upon
and the officer
Larson’s conclu-
aсted
officer, Siedschlaw,
pill, hypothetically,
sions. Even if the
arrested this
drug possession charge
woman on a
drug,
there was no basis
without warrant
and without
appellant possessed or
believe the
owned
drug
cause. The
turned out
be a vitamin
pill.
It was
in a
on
on
floor
pill. The evidence
established that
never
then,
How,
jointly
apartment.
shared
could
possession
pill
drug.
cause under
officer
“reasonable”
everyday
Vitamin
are in
use
South
or—“probable”
state
cause under
statute —
Dakotans and are not a controlled sub-
of the U.S.
fourteenth amendment
drug.
stance or
Const,
аppellant had
to believe that
herein,
felony?
The officer acted
Reviewing
committed
the record
it is obvious
hearsay
rank
and an uncorrobo-
that Officer
had no warrant of
Larson
pill
drug.
rated belief that the
provides:
Raymond
SDCL 23-22-71
As
Corri
one considers
subject
gan
supra,
ponders on
peace
may,
A
officer
without
mind would
“emergency,”
a reasonable
person:
arrest a
“emergency”
where
wonder:
(1)
public
For a
offense committed or
waits for
instant case where
officer
attempted
presence;
in his
time
eight days from the
he received
(2)
person
When the
arrested has com-
appellant
until
arrested
although
felony,
mitted
*6
inescapable:
It
there was no
a warrant?
presence;
days,
rea
emergency. During
eight
those
(3)
felony
aWhen
has in fact been
enforcement could have
sonable man
law
committed, and
has
he
reasonable cause
warrant of
a search warrant and a
obtained
believing
for
person
the
arrested to
doing
Nothing precluded him from
it;
have committed
so; instead, he
of the law
proceeded outside
(4)
charge,
On a
made
reasonable
young
this
woman without
arrested
cause,
fеlony
commission of a
so,
he
he acted at
warrant. When
party
arrested.
opinion,
writer’s
it is this
peril.
own
this
Thus,
this officer could
under
police
kind
and law enforce
behavior
23-22-7(3),
felony
SDCL
has in
“[w]hen
this
thwart lest
ment that our courts should
committed,
fact
he
has reasonable
police
Our free
nation turn into a
state.
believing
person
cause for
arrested to
doms,
Rights,
Bill of
guaranteed under the
parties,
have committed it.” All
under the
by a
safeguarded
preserved
must
be
undisputed
regards
record as
the existence
at
vigilant judiciary, one inch and one case
a felony
concede thаt no
Otherwise,
eventually
they
time.
appellant.
was committed
into oblivion.
eroded
peace
Before a
officer can make an arrest
VI,
of the
like
cite art.
§
should
without a
he must be able to show
Const,
my
authority
position
emergencies permitting
that one
such
wronged
has been
that this
woman
Raymond
our statute has arisen.
people to be
Corrigan,
right
“The
of the
803 of another liable for releasing her her own arrest and detention incarceration not in- recognizance; imprisonment.” that Siedschlaw did credibility or or quire into ascertain Larson, examining liability of In Larson; reliability of re- roommаte, the above-recited should suggestion of the state’s attor- fused instigation appellant’s as the considered office had al- ney’s and indicated that he and demonstrate how Larson direct- arrest ready booked her and that she had been requested police officer to make ed and going stay arrested and that she was law is in this warrantless arrest. The rife jail; that three of the told Siedschlaw sufficient, supported state that verdict locking up appellant was a mistake evidence shall not be disturbed credible released; appellant and that should be reviewing Ryan, Kredit v. court. See so; refused to do that all of 274, 813, affirming 1 68 S.D. N.W.2d pur- hereinbefore mentioned were case doctrine and which concerned age-long by the were appellant’s chased mother and imprisonment. directly the tort of unlawful pills; vitamin that the items confiscated ap- my opinion, the officer were never returned to the there sufficient pellant; appellant had to remove record to substantial evidence in the sustain matron, who clothes before a roommate, against verdict Larson. brought pair searched her her a testimony given heard the and ob- jury сoveralls, prison whereupon placed she was the conduct and demeanor of served in a cell just where some man had been record, have examining witnesses. In I her, place removed to had make a the trial court erred concluded stool; kept mattress and a she was o. n. granting Larson’s motion jail approximately finger- three days, reverse the trial v. and would therefore charged printed, and with feloni- thereafter require trial court’s determination ously and controlled knowingly possessing a $5,000 jury award to reinstate the court substance; drug finally or when it appеllant. unto judicial attention, received was dismissed. decision, cite comfort in and In this I take Appellant’s for a motion directed approval, five unlawful as a of law officer matter Tred history in the court. decisions granted. The trial court Dickenson, Birks, v. way supra; v. Cullen jury failed to instruct the that the officer’s Albright, Ray Catencamp supra; v. supra; unlawful, arrest was invalid and as a mat- v. Corrigan, supra; and Kredit v. mond law, ter of and that the to return supra. Ryan, appellant verdict in favor of precedent found not break with the I do Cir., Sager, v. 173 Siedschlaw. Anderson 8 469-470, 466, v. 84 Klingler, in State 794; Gutschenritter, F.2d v. Wilson 278-279, 275, Klingler thusly Neb. would Statеs, Cir., 409 F.2d United remand for a of dam- determination principles in State Nor do I fault ages Siedschlaw. S.D., Gerber, In State directing requesting An individual an armed rob- Klingler, supra, there was peace officer illegal to make an and the service bery of a service station Tredway v. liable for false description attendants furnished station Birks, Also, Bliss, supra. see Burkland v. car, getaway of the robber to officers holding N.W. that all whereupon the made warrantless officers participate in or assist commission *8 Gerber, supra, magis- In State v. tort-feasors, imprisonment joint false are relied an affi- tratе was involved regardless conspiracy of whether has been proba- to determine and corroboration davit Further, entered into. see Huskinson bar, In Officer cause. the case ble Vanderheiden, 197 Neb. objectivity, Siedschlaw acted 144, 146, holding private that “[a] trustworthy informa- reasonably direction, not per- citizen who by affirmative tion, suasion, man of reasonable procures and did not act as a request an unlawful felony distinguished caution. No was citizen as from a committed and concerned paid police trooper’s cohort Siedschlaw had no cause to bе- informer. reasonable pill ran test on out a field that came lieve woman had committed a positive, possible indicating presence felony. amphetamine. an It is true that permit we If officers of state to step procedure first in a recommended test people arrest for a without warrants pill apparently was taken because the entire depicted under in this circumstances as procedure. was used Probable case, we inviting are an untrammeled cause, however, proof be- require does not they please. license for No оfficers to do as yond doubt.1 The other room- a reasonable safe, citizen shall be if this officer’s actions apparently mates in also blessed, legally an intrusion into from Larson’s, suspicions added to those of their incarceration; his home and subsequent furnishing thereby sufficient corroboration. indeed, if a brown is found say light viewing I this in would apartment, on the floor of his home or proba- he most favorable subject albeit vitamin to arrest ble to make the initial arrest and felony. for a only con- is before us. We are is all that to the knowledge leading up with cerned MORGAN, (dissenting). Justice arrest, prоb- If not the events. Although sympathize I dissent. I can able cause existed at the time of the distress, plaintiff with for her under the the arrest was lawful. pleadings and record I think in this While it is true that under some circum- judge the trial properly. acted imprisonment following a stances lawful First, proba- he submitted the unlawful, proper may as we become jury. ble cause for the arrest to the Those review the this issue never twelve, true, tried and defendant presented to the trial court motion Siedschlaw. I think there evidence proposed Although instruction. McGilliv- sustain this verdict. during ray’s strongly stressed it oral counsel that, argument, fоllowing I would our hold I believe question, the first as indi- rule, long-standing we should not consider by the majority opinion, cated is whether or appeal that are raised properly issues on not MeGillivray not was entitled to directed preserved before the trial court and in the the issue of on Stark, 178, 109 record. Stark majority, cause to arrest. The (1961). however, picks every and chooses fact and movant, Finally, respect liability inference favor of MeGilliv- Larson, MeGillivray I think ray, whereas the defendant requires law that we view good had a would have case of malicious evidence light in the most favorable to prosecution pled had it It argued. defendant Lytle Morgan, Siedschlaw. not, however, and, having hung counsel S.D., 270 (1978). Applying N.W.2d 359 imprisonment, his hat I think scope what consider to be the correct arguments They should fail. are distinct review, the trooper record shows that separate causes of A lawful action. presented Larson, with evidence be- does not become unlawful McGillivray’s roommate, form in the of a motives; cause of malicious nor does pill containing an unknown substance and because unlawful detention become lawful information that MeGillivray seеmed purpose. it was actuated a laudable sleepy all the time. stated that Larson also suspected MeGillivray was on imprisonment, for false mo- an action malice, This drugs. report supposedly being tive or not of the element Hermandson, practi- 1. As this court said in State v. arrest or search. These are factual and (1969): everyday cal considerations life on required men, prudent legal are not “Officers to know facts suffi- techni- reasonable cians, prove guilt, only knowledge cient act.” sufficient to show cause for an
«05 tort, is usually immaterial the issue of
justification issue only and is an exemplary dаmages. The ver- general damages only.
dict was for There-
fore, I assume that must act maliciously. Larson did not
Nor instigated do I see that Larson New Webster’s Third International
Dictionary, page defines “insti- on; forward;
gate”: urge goad “To set
provoke, my incite.” From review of the say I cannot actions of instigation.
Larson amounted fur- She by voicing suspicions
nished information furnishing which she found. She contact with offi-
cers path entry and cleared their into without a warrant obtain- girls; other the consent of the but we she also consider that was not mere-
ly Rather, a passerby or distant observer. and the other were roommates apprehension apparent some that sus-
picion Cooperation fall on them. could
private giving citizens in information
tips part is an essential Many good tips
criminal law enforcement. undoubtedly given by informants with hearts,
malice in their that does
give grounds imprison- for action for false
ment. judgments would affirm the the trial
court. Dakota,
STATE of South Plaintiff Appellant, WIELGUS,
Steven Francis Jr. and Jeanie Wielgus,
Kristine Defendants and
Respondents.
No. 12424.
Supreme Court of South Dakota.
May