Rodarte Ex Rel. Rodarte v. City of Riverton

552 P.2d 1245

• Court: Wyoming Supreme Court
• Decided: July 20, 1976
• Docket: 4480
• Status: Published

Opinions

ON REARGUMENT

Before GUTHRIE, C. J., and Mc-CLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

NATURE OF THE ACTION

This appeal comes from an incident involving the arrest of plaintiff-appellant Susan Rodarte, a minor, by members of the Riverton Police Department on December 18, 1973. The appellant charges wrongful arrest and battery against various appellees-defendants and asks that they respond in damages. A member of the so-called “Riverton Police Reserves” participated in the activities of the other police officers upon the occasion in question here and this aspect of the appeal will be discussed later in the opinion.

The appellees say that there was no arrest but, if we find to the contrary, it is nonetheless assumed by this court that the contention is made that there existed good faith and probable cause¹ to believe a crime had been or was being committed by the plaintiff, which warranted her being handcuffed and transported to the River-ton Police Station in a police patrol car, where she was physically searched, questioned and subsequently released with no complaint having been filed.

All defendants filed motions for summary judgment, which were sustained and judgment entered accordingly. This appeal -arises from that judgment and from denial of plaintiff’s motion for summary judgment seeking injunctive relief against the “Reserves.”

There is no dispute in the factual area of the appeal and therefore we adopt the appellant’s statement of facts, which is also acceptable to the appellees. The opinion will be supplemented by other facts gathered from the record, including those suggested by appellees, as they seem necessary and appropriate.

On December 18, 1973, Susan Rodarte and her friend Nita Gina met Don Jasch and Fred Skorcz by happenstance at Taco John’s, a fast-food outlet in Riverton, Wyoming. Plaintiff knew Jasch, the driver of the pickup truck, but she did not know Skorcz, nor did she know that the vehicle was his. The girls were asked and they agreed to ride around with the men provided they could first return the plaintiff’s automobile to her home where she would deliver it to her parents. This was done and the boys picked up the girls at the plaintiff’s residence, whereupon they returned to Taco John’s.

A warrant had previously been issued for the arrest of Fred Skorcz, charging him with the sale of narcotics, and the Riverton police were looking for him. The plaintiff did not know this, nor is there any evidence to indicate that she, at any time prior to her arrest, had any knowledge whatever of Skorcz’ marihuana activities. Upon discovery and identification of the Skorcz vehicle in the vicinity of Taco John’s, Officers Barber and Lain of the Riverton Police Department notified the police station and kept the subject under surveillance while Officer McAuslan (who was in plain clothes) and “Reserve Officer” Hays (who was in full uniform) proceeded to the scene to direct and aid in the arrest of Skorcz. The two police vehicles were positioned in front and in back of the pickup and, when confronted by the officers, Skorcz identified himself and was removed from his pickup truck and placed in the custody of Hays, the “Reserve” policeman, who handcuffed him and ordered him into a police patrol car. The plaintiff, Nita Gina and Don Jasch also removed themselves from the pickup at the direction of the police officers. Hays did not participate in the arrest of Gina, Jasch and Rodarte.

In the course of these activities, Officers Lain and McAuslan observed a plastic sack on the floor of the pickup containing plant material which they suspected to be marihuana. McAuslan gave instructions to Officers Lain and Barber to take the three occupants “downtown,” whereupon, without interrogation, inquiry or further ado, all three were handcuffed and transported in the other police vehicle to the police station. The two men were given a “pat down” search before the vehicles left the scene, but the women were not. At no time was there any threat of harm to the police officers or any attempt to escape made by any of the four suspects. The officers did not inform the plaintiff, either at the scene or at the police station, what charge, if any, was to be lodged against her. In fact, she was never charged with any crime or wrongdoing. Miss Rodarte testified by deposition that the officer who drove them to the police station told them that they were under arrest for “possession of marihuana,” but the officers have insisted that they did not arrest the plaintiff for any violation.

At the station, after a matron searched the clothing and person of the plaintiff, she was questioned by Officer McAuslan as to whether she owned the suspected marihuana or whether she knew to whom it belonged, and when her responses were negative Officer McAuslan told her she could go. The total time of detention at the station was between IS and 20 minutes.

INTRODUCTION TO THE OPINION

This case presents an opportunity to analyze for Bench and Bar the question of “probable cause” for arrest in the constitutional or criminal context on the one hand, and the “good faith and probable cause” defense to the defendant-arresting officer in a tort case on the other hand.

We inquire into this question exhaustively because we recognize the distinction to be misty, hazy and vague and we also realize that police officers, as well as the public, may not know of their rights unless courts will define them. That the area has its hazards is indicated by the observation of Judge Medina in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 2 Cir. 1972, 456 F.2d 1339, 1348, where he said:

“The numerous dissents, concurrences and reversals, especially in the last decade, indicate that even learned and experienced jurists have had difficulty in defining the rules that govern a determination of probable cause, with or without a warrant. See e. g., Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970) ; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). As he tries to find his way in this thicket, the police officer must not be held to act at his peril.”

ISSUES RAISED BY THE APPEAL I

The appellant defines her first issue for resolve here as follows:

“The Court erred in ruling, as a matter of law, that the arrest was lawful and that the subsequent handcuffing and search was [sic] necessary, proper and reasonable.”

The trial judge said in his memorandum opinion:

“In my judgment there was probable cause for the officers to believe that a crime was being committed in their presence, and the arrest therefore was lawful. Marijuana was also found under the part of the seat occupied by the plaintiff. [Emphasis supplied]

‡ ⅜ ⅜ ⅜ * ⅜:

“The arrest being lawful, it would seem to me that the handcuffing and the search were both necessary, proper, and reasonable under the circumstances and in the absence of any other claim of mistreatment, abuse, excessive force or other improper action by the officers, motion for summary judgment will be granted.”

The other side of the coin is that if the arrest was unlawful for want of the kind of good faith probable cause that will serve as a defense in a civil action where wrongful arrest is charged, the handcuffing and search were improper.

If it was intended by the trial judge that his finding be understood to mean that there was good faith and probable cause for the officers to believe that Susan Rodarte, the plaintiff, was committing a crime in their presence, then we cannot agree that this could be concluded as a matter of law under the undisputed facts of this case. Miss Rodarte could not, of course, be arrested upon a contention of good faith and probable cause to believe that she was present while someone else was committing a crime in the presence of the officers absent any good faith showing or cause to believe that she had participated therein.

Since the record does not disclose undisputed evidence of good faith and probable cause to believe that the appellant had committed a crime or was, in the presence of the officers, committing a crime, thereby authorizing her warrantless arrest, we hold that the entry by the lower court of a summary judgment against this plaintiff was prejudicial error necessitating reversal, and the case must be, and is herewith ordered, remanded for trial on the issues and under instructions of law which are not inconsistent with this opinion.

What Is An Arrest?

We preliminarily address ourselves to the question of whether Susan Rodarte was arrested.

In his opinion, the trial judge said:

“The plaintiff asserts she was arrested. The testimony of the officers is somewhat uncertain or indefinite but there is no dispute as to the principal action taken and, according to the opening definition of arrest in the article on this subject in American Jurisprudence, it would seem plain that she was in fact arrested.”

The definition to which the judge had reference is the following:

“An arrest is the taking, seizing, or detaining of the person of another, (1) by touching or putting hands on him; (2) or by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested.

“To effect an arrest, there must be actual or constructive seizure or detention of the person arrested, or his voluntary submission to custody, and the restraint must be under real or pretended legal authority . . .”5 Am Jur 2d, Arrest § 1, p. 695.

This is an acceptable definition of arrest and description of the actions of the officers necessary to effect an arrest.

Under the facts, the lower court found plaintiff to have been arrested — we find that she was arrested — counsel for ap-pellees Horyza, McAuslan, Barber and Hays stipulated that she had been arrested for all purposes to which the summary judgment and this appeal are addressed and yet — the police officers of the City of Riverton steadfastly have declared that the plaintiff was never arrested by any officers of the Riverton Police Department on the occasion in question.

Susan Rodarte was arrested when she was ordered out of the pickup — directed by a police officer to get into a police car— handcuffed and taken to the police station where she was searched. That amounted to an arrest under any definition of arrest ever conceived by the mind of man !!! The alarming thing is that the Riverton Police Department doesn’t seem to believe that this kind of activity with respect to a subject constitutes arrest.

One of the defendant-appellee-officers participating in the arrest, when asked these following questions, responded:

“Q In your opinion, was she under arrest?

“A No, sir.

“Q What to you in your opinion constitutes an arrest?

“A Confinement.

“Q Confinement?

“A Yes, sir.

“Q You mean they have to be behind bars before they are under arrest ?

“A Yes, sir.

“Q Is that your understanding of an arrest?

“A This is the way I interpret it, myself.”

We recite this colloquy between the officer and counsel because it may strike at the problem’s very heart. Perhaps this court has been derelict in its duties and obligations to the law enforcement departments of the government. It might be that law enforcement officers do not understand the legal concept of arrest. We recognize, therefore, an obligation to be more explicit on this subject.

Excepting only where the officer temporarily detains for investigation, for an arrest to take place the officer need only subject the person he confronts to some kind of control and detention amounting to a restriction upon his or her freedom. He arrests when he, with the present ability to do so, exerts his will upon the citizen in a way which indicates an intention to detain him or to take him into custody — he arrests him when he issues an order in a way which causes the subject to believe he must obey the command which, if obeyed, results in a restriction upon freedom. The officer arrests when, in order to detain, he touches his subject or lays hands on him. Extensions of these basic restrictions constitute an arrest such as, for example,' placing the subject in the police car — handcuffing him and taking him to the police station — putting him in jail, etc. But these latter drastic activities are but more dramatic examples of impairment of the individual’s freedom. Any laying on of hands or any detention coupled with an act or attitude indicating the officer’s apparent intention to assume physical control or to take the subject into custody is also an arrest.

This does not mean that a person may not be detained by the officer for investigation without an arrest being effected where there is probable cause to believe there has been a crime committed or to believe one is being comimtted, coupled with a belief that the subject is or could be involved in its commission. Under such probable cause circumstances the person may be detained for inquiry.²

In the instant matter there was no “temporary detention” for the purpose of on-the-spot questioning or for any other purpose. The plaintiff was not questioned or even identified prior to arrest. She was just arrested.

PROBABLE CAUSE — CRIMINAL AND CIVIL

There are two standards which serve as tests for probable cause where wrongful arrest and false imprisonment are in issue:

The first is a constitutional standard which the defendant in a criminal case may assert and can be described as that which

“. . . constitutes reasonableness for purposes of defining probable cause under the fourth amendment for the protection of citizens against governmental overreaching . . Judge Lum-bard, concurring in Judge Medina’s opinion in Bivens, supra, at page 1348 of 456 F.2d.

The second is less stringent and is couched in the philosophy of tort law.

Judge Medina said in Bivens, supra:

. . The standard governing pqlice conduct (in the civil suit for wrongful arrest) is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable . . .” 456 F.2d, at page 1348. [Parenthetical matter supplied]

PROBABLE CAUSE FOR ARREST

The Constitutional Criminal Standard Examined

Before an officer in Wyoming can make a legal warrantless arrest he

must first have probable cause to believe that a crime (as defined by statute) has been committed by the person to be arrested or he must have reasonable grounds to believe that an offense is being committed in his presence by the person to be arrested.³ The same concept is reflected in the ordinances of the City of Riverton.⁴ The statutes and the ordinances are the appropriate expressions of the State and Federal constitutional guarantee of every citizen’s right to due process of law.⁵

Why Must Probable Cause be Present as Between the Suspect and the Arresting Officer?

Why is it necessary to have probable cause to believe the person to be arrested is committing or has committed a crime before a lawful and constitutional arrest can be made?

It was said in Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959):

“. . . for it is the command of the Fourth Amendment that no warrants for either searches or arrests shall issue except ‘upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ ” [Emphasis supplied]

In Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 413, 9 L.Ed.2d 441 (1963), Mr. Justice Brennan, speaking for the Court, said:

“. . . The history of the use, and not infrequent abuse, of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause would ‘leave law-abiding citizens at the mercy of the officers’ whim or caprice.’ ” (Footnote omitted) Citing Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879.

What is Probable Cause in the Criminal-Constitutional Context?

In Williams v. United States, 10 Cir., 323 F.2d 90, 93 (Wyo.1963), the circuit appellate court said:

“ ‘ “The substance of all the definitions” of probable cause “is a reasonable ground for belief of guilt.” * * * Probable cause exists where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed.” ’ ” Citing Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879. [Emphasis supplied]

Mr. Justice Stewart, in delivering the opinion of the Court in Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964), said:

“. . . Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879; . . .” [Emphasis supplied]

These are fair and workable conceptual explanations of what constitutes probable cause for arrest — as between the suspect and the arresting officer — that is — probable cause in the constitutional context.

Did the arresting officers, at the moment of arrest, have within their knowledge facts sufficient to warrant a “prudent man” to believe that Susan Rodarte had committed or was committing an offense? What was she doing or had she done which would furnish an arresting officer sufficient foundation in fact to warrant men of “reasonable caution,” without further inquiry of any kind, to believe that she had committed an offense or was, in their presence, committing a crime ? What did they sense- — or know — or see — or feel — that would furnish sufficient present knowledge to constitute probable cause to arrest her for either committing or having committed a crime?

The crime that the officers indicated they believed was being committed in their presence was possession of a controlled substance (marihuana), which is, under our statutes a misdemeanor.⁶

Susan Rodarte was sitting in a truck with three other persons, one of whom, Fred Skorcz, the owner of the vehicle, the police had authority to arrest under a warrant on the charge of “delivery of a controlled substance.” § 35-347.31, supra. This warrant was based upon prior activities of Skorcz totally unrelated to the events of this occasion and had nothing to do with the other people involved here, a fact with which the police-defendants were chargeable with knowledge. The plaintiff was present when, in the course of this arrest, two bags of a substance which appeared to the police officers to be marihuana were discovered on the floor of the truck which the police officers knew belonged to Skorcz.

At the time of and prior to her arrest the plaintiff was not recognized by anyone known to the police as either being dangerous or a law-violator. She wasn’t recognized at all. The officers did not even ask her name. They asked her no questions whatever. She did not in any way resist the officers — she was not interrogated at the scene prior to her arrest as to her knowledge about or ownership of the baggies which appeared to the officers to be marihuana — she was not asked about her association with Skorcz- — and she was not inquired of in any other way. When she was asked a few questions at the police station about her knowledge of the ownership and origin of the marihuana, she was almost immediately released.

Under the above recited facts, probable cause for arrest, in the constitutional and criminal context, was not present. That is — if this were a criminal case in which the question of whether there existed probable cause for arrest under these facts, we would be inclined to a conclusion that there was no probable cause for the arrest — as a matter of law.

We said in Lofton v. State, Wyo., 489 P.2d 1169,1172:

“. . . We recognize that an arresting officer must be shown to have been acting on facts constituting probable cause . . .”

The standards to be applied to the facts upon which the arresting officer must determine probable cause at the time of the arrest in a criminal constitutional context

“are as stringent as the standards applied with respect to a magistrate’s assessment, . . ,”⁷

It would seem axiomatic that criminal probable cause is the cause which logically leads to a conclusion that the person to he arrested is the one who had committed or was engaged in the commission of the crime. Of course, this is a condition of the statute under which the arrest was purportedly made. (§ 7-12.3, W.S. 1957,1975 Cum.Supp.)

It is said in 5 Am.Jur.2d Arrest, § 44, p. 735, under the heading “Probable Cause for Arrest of Suspected Persons — Generally,” at page 736:

“Probable cause to believe that a felony has been committed is not enough, without probable cause to believe that the person to be arrested is the guilty party .”⁸

The district court, as well as counsel for appellees, seem to adopt the position that a crime was apparently being committed in the presence of the officers which, in and of itself, gave them the right to arrest Susan Rodarte without a warrant, all without regard to whether or not it was she who was committing it. The mere fact that a crime is being committed in the presence of the officer does not, by statute, ordinance, or any other authority, give the officer the power to arrest everyone in sight.⁹ He may act only when a

“criminal offense is being committed in his presence' by the person to he arrested; . . .” § 7-12.3(a) (i), W.S.1957, 1975 Cum.Supp. [Emphasis supplied]

Mere suspicion coupled with the officers’ good faith will not suffice as probable cause for arrest.¹⁰ The officer must possess a factual knowledge which leads him as a reasonable man to believe that his subject is committing or has committed a crime.¹¹

Further,

. .to afford a justification, there must be not only a real belief and reasonable grounds for it, but also, where there is opportunity to make inquiry, proper investigation into the facts.”¹² Justice Douglas, in his learned opinion in

Henry v. United States, supra, said:

“. . . And as the early American decisions both before and immediately after its (the Fourth Amendment to the U.S. Constitution) adoption show, common rumor or report, suspicion, or even ‘strong reason to suspect’ was not adequate to support a warrant for arrest. And that principle has survived to this day. See United States v. Di Re, 332 U.S. 581, 593-595, 68 S.Ct. 222, 227, 228, 92 L.Ed. 210; Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 368, 369, 92 L.Ed. 436; Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503. Its high water was Johnson v. United States, supra, where the smell of opium coming from a closed room was not enough to support an arrest and search without a warrant. It was against this background that two-scholars recently wrote, ‘Arrest on mere suspicion collides violently with the basic human right of liberty.’

“Evidence required to establish guilt is not necessary. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. On the other hand, good faith on the part of the arresting officers is not enough. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035. And see Director General of Railroads v. Kastenbaum, 263 U.S. 25, 28, 44 S.Ct. 52, 53, 68 L.Ed. 146; United States v. Di Re, supra, 332 U.S. 592, 68 S.Ct. 227; Giordenello v. United States, supra, 357 U.S. 486, 78 S.Ct. 1250. It is important, we think, that this requirement be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543. And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must he made with probable cause. Carroll v. United States, supra, 267 U.S. at pages 155-156, 45 S.Ct. at pages 285-286. This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen . . .” [Parenthetical matter and emphasis supplied]

The mere suspicion which arises out of the arrested person’s presence in the vicinity where the crime has been or is being committed does not constitute probable cause in the constitutional context.¹³

In the instant matter, it appears that the officers arrested the plaintiff, Susan Rodarte, for “possession” of marihuana. To constitute a lawful arrest they must have had probable cause to believe that she had committed or was committing the crime as defined by the statute. Under United States v. Di Re, supra, her mere presence in the vehicle belonging to another where the contraband was discovered did not amount to possession nor was it adequate to establish probable cause for believing the crime in question had been or was being committed by her.

We have said in Mulligan v. State, Wyo., 513 P.2d 180, that where the only evidence of possession is that narcotics were discovered in premises occupied by the plaintiff with others, this is inadequate evidence to convict for possession. True, evidence to constitute probable cause need not be so strong as to establish guilt. Brinegar v. United States, supra. On the other hand — mere suspicion is not enough. Whiteley v. Warden, supra.

These are the protections, precepts and parameters within which the citizen may find his safety against unlawful arrest and within which the officer must enforce the law.¹⁴

The test of the officer’s mettle in making a constitutional criminal warrant-less arrest is the reasonable-man test applied against a standard as stringent

“as the standards applied with respect to a magistrate’s assessment . . . ”

(Lofton v. State, supra)

made by the officer under the circumstances prevailing at the time.

Under the facts and the law reviewed here, and if we were involved in determining whether there was probable cause present in the constitutional or criminal sense, we would have to conclude that there were insufficient facts present and known to the officers at the time of the plaintiff’s arrest which would lead men of “reasonable caution” to the conclusion that a crime had been or was being committed by the plaintiff. In their depositions the officers readily admitted that she was ordered into the patrol car, handcuffed, taken to the police station and searched because they suspected that she was in possession of marihuana.¹⁵ They made no efforts to confirm these suspicions and they had no facts upon which to base them except that she was present in a vehicle with others at a time when marihuana was discovered. This constituted the probable cause upon which the officers relied,¹⁶ but it does not constitute probable cause in the constitu tional context. (Adams v. State, supra, United States v. Di Re, supra, and our holding in Mulligan v. State, supra) It follows that if the arrest was unlawful in the constitutional sense, the handcuffing and search were unnecessary, improper and unreasonable — in the same constitutional context.

GOOD FAITH AND PROBABLE CAUSE — A DEFENSE IN TORT

As compared to the standard which serves for testing the constitutional assertions of the defendant in a criminal case ¹⁷, there is a second less stringent standard which the defendant police officer may assert in defense of wrongful arrest and false imprisonment.

The United States Supreme Court, in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288, recognized the common-law doctrine that the police officer in a civil wrongful arrest or false imprisonment action could plead and prove as a defense that he was, at the time of making the arrest,

“actfing] in good faith and with probable cause.” (Pierson, supra)

Bivens, supra, at 456 F.2d 1348, described the standard governing police conduct in a tort action as follows:

“. . . The standard governing police conduct (in the civil suit for wrongful arrest) is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable .” [Parénthetical matter supplied]

It is to be observed that the Pier-son rule, supra, speaks in the conjunctive —not the disjunctive. It doesn’t say good faith or probable cause. It doesn’t say the police officer should be relieved of liability if he is able to show only good faith irrespective of whether or not he can also show probable cause. He must be able to show both — not in the criminal constitutional sense but in the context of the reasonable-man theory of tort law. The court, in Pierson v. Ray, supra, said:

“. . . Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.” 386 U. S. at 556-557,87 S.Ct. at 1219.

If good faith only could be applied as a standard for liability in a civil case, absent the requirements of probable cause, there could be no successful prosecution for wrongful arrest. The officer would only have to say, in a warrantless arrest situation such as is present here — “In good faith, I arrested the suspect, believing him to be committing a crime.” This would be sufficient because “good faith” — absent the probable cause requirement — is not amenable to subjective inquiry. The presence or absence of “good faith” without probable cause can exist only in the mind of the officer. It can never be tested or cross-examined. “Good faith and probable cause” may be tested by objective inquiry.

Good faith and probable cause suggest an objective inquiry into the arrest circumstances which permits a resolution of the question which asks whether or not probable cause (in the reasonable-police-officer context) did or did not exist at the time of making the arrest.

If the defendant, acting as a reasonable police officer at the time of making the arrest, in good faith believes that such facts are present as to lead him to an honest conclusion that a crime is being committed by the person to be arrested, then he may not be held liable for false arrest — even if the crime was not in fact being committed — and even if probable cause in the constitutional sense is not present.

But — if the objective inquiry reveals that even though the officer purports to have been in good faith — yet he did not make the inquiry — the determinations — the observations and the investigation of fact required by an officer of the law acting reasonably and prudently in the same circumstances, then he may not be relieved of his liability for wrongful and false arrest.

The court, in Tritsis v. Backer, 355 F. Supp. 225, 227 (N.D.Ill.1973), aff’d 7 Cir. 1974, 501 F.2d 1021, quoting Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 2 Cir.1972, 456 F.2d 1339, 1347-1348, said:

. . [t] he standard governing police conduct (a false arrest and imprisonment) is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable .’ ” [Parenthetical matter supplied]

In Richardson v. Snow, 340 F.Supp. 1261, 1263 (D.Md.1972) the court said:

“The ultimate questions to be decided in the trial of Snow are: (1) Did defendant Snow have grounds, based on information known to him at the time, reasonably to believe in good faith that he had a right to arrest Rene Richardson?

The conclusion to be drawn from the case authority is that — in a civil case, as compared to a criminal case, the standard for determining probable cause for arrest and false imprisonment is different and less stringent. The relaxation comes more out of the background and atmosphere in which the scene is set than it does the test itself. In a criminal case, where the facts are undisputed, probable cause more readily lends itself to solution as a question of law than is the case in civil tort litigation.

In a civil case the rules of tort law are applicable — that is — since good-faith probable cause is ascertainable within the philosophy of negligence, and since negligence becomes a question of law only when the minds of reasonable men can draw but one inference which points unerringly to such negligence (Ries v. Cheyenne Cab & Transfer Company, 53 Wyo. 104, 79 P.2d 468), the presence or absence of probable cause for arrest and false imprisonment must usually be left for resolution as a question of fact for the fact-finder.

In this appeal, the traditional requirement that the negligence must be decided by the jury as a question of fact causes us to determine here that a court — in this fact situation — cannot say, as a matter of law, there was no probable cause or that there was probable cause for arrest. We find and hold that the question is one for the jury’s determination.

We reverse the lower court on the probable-cause and good-faith issues and remand to the lower court for trial on that question.

APPELLANT’S ISSUES TWO AND THREE

In appellant’s brief, issues numbered 2 and 3 are delineated as follows:

“2. The Court erred in deciding that Hays had no part in the police action with respect to the arrest of plaintiff and therefore granting summary judgment in his favor in the first count.

“3. The Court erred in granting summary judgment and dismissing the City of Riverton and the Riverton Police Reserves on the grounds that they had no involvement in the action, and should have granted plaintiff’s motion for summary judgment, on the fourth count of plaintiff’s complaint asking for injunc-tive relief against the extension of police authority to private citizens of River-ton,”

Issue number two:

Turning our attention to issue number two, we do not find under the facts as presented by the record that “Reserve Officer” Hays actually had any part in the arrest of Susan Rodarte. To be sure, he played a major role in the arrest of Skorcz but he had nothing to do with arresting Miss Rodarte. The trial court’s judgment is affirmed on that point.

Issue number three:

The appellant seeks to have us reverse the trial court’s ruling on issue number three on the ground that the “Police Reserves” are unauthorized under the statutes of the State of Wyoming and ordinances of the City of Riverton and therefore the “Reserves” and the City of Riverton should be enjoined from engaging in further “Police Reserve” activity.

We do not express our opinion on the problems attendant upon the activities of the “Police Reserves” at Riverton, Wyoming, except to say that we can foresee difficulties arising in a proper case and under a different set of facts. For example, if “Reserve Officer” Hays had in fact participated in the arrest of the appellant, there could have been a multitude of problems associated with the operation of this kind of an organization, which, under those circumstances, would have properly presented themselves for our concern. Having held, however, that Hays did not participate in the arrest of Susan Rodarte, the legality — the powers — and the prerogatives of the “Riverton Police Reserves” are not before us and neither is the liability of the City of Riverton itself for the deeds or misdeeds of the “Reserves.”

The only issue pertaining to the “Reserves” which is raised by the pleadings and supported by this record is whether an injunction against the “Reserves” should have issued to protect appellant-Susan Rodarte from their activities.

We find that there is no injunctive relief warranted under the facts and the law applicable.

We said in Cantou v. Walker, 61 Wyo. 56, 68-69, 154 P.2d 530, 534, where this court quoted from Healy v. Smith, 14 Wyo. 263, 83 P. 583, in which Mr. Chief Justice Potter stated the general rules upon which injunctive relief may be predicated:

. . It [injunction] should not, therefore, be granted merely to protect a right where no actual or threatened violation of that right appears. Mr. High [on injunctions] says: “Nor will a court of equity lend its aid by injunction for the enforcement of right or the prevention of wrong in the abstract', and unconnected with any injury or damage to the person seeking relief.” High on Inj. (3d Ed.) § 1, . . . “To justify'the court in granting the relief, it must be reasonably satisfied that there is an actual intention on the part of the defendant to do the act which it is sought to enjoin, or that there is probable ground for believing that, unless the relief is granted, the act will be done. . . Nor will the

court interfere when the evidence shows that there is no probability of defendant doing the act which it is sought to restrain.” ’ ” [Bracketed matter supplied] The Canton opinion quotes from 28 Am.

Juris. 217, Section 24, which says in part:

. . In other words, the relief [injunctive relief] should be awarded only in clear cases, reasonably free from doubt, and, when necessary, to prevent great and irreparable injury. The court should therefore be guided by the fact that the burden of proof rests upon the complainant to establish the material allegations entitling him to relief.’ ” [Bracketed matter supplied]

These rules are applicable here and we do not find in this record proof sufficient to establish a threatened violation of the rights of the plaintiff — and any right which is sought to be enforced is conjectural and in the abstract. There is no proof of an intention on the part of the “Reserves” to do acts in the future which would be harmful to the plaintiff and there is no showing that unless the injunction were to issue great and irreparable damage would result to her.

We affirm the lower court on issues two and three for the reasons set out herein-above; and reverse the lower court’s holding that the arrest was lawful and remand for trial on that issue.

Reversed in part, and affirmed in part.

1 . The defendants actually allege that there was “probable cause” to make the arrest. We assume a defense of “good faith and probable cause” because we are remanding for trial on the issues under the assumption that good, faith and probable cause will be urged as an affirmative defense.

2 . In United, States v. Sanchez, 10 Cir. 1971, 450 F.2d 525, 528, the court said:

“Temporary detention for limited investigatory purposes, as well as a full blown arrest, is protected by the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, in Terry it was observed that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest, and that the test of any governmental invasion of a citizen’s personal security is its reasonableness in the light of all the surrounding circumstances.

“In this same vein it has been held that probable cause to arrest requires something more than probable cause to temporarily detain for the purpose of attempting, for example, some on-the-spot questioning and that, as concerns the latter, brief detention under circumstances that would not justify an arrest is not ipso facto unconstitutional. See such cases as Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966) ; United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970) ; and United States v. Oswald, 441 F.2d 44 (9th Cir. 1971). And in United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137, it was held that a brief detention based on an officer’s reasonable suspicion that criminal activity was afoot is constitutionally permissible for the purposes of a limited inquiry and that incriminating evidence which may come to the officer’s attention during such period of detention can become a reasonable basis for effecting a valid arrest.”

3 . Section 7-12.3, W.S.1957, 1975 Cum.Supp. “Arrests without warrant. — (a) A peace officer may arrest a person without a warrant and detain him until a legal warrant can he obtained when:

“(i) Any criminal offense is being committed in his presence by the person to be arrested; or

“(iii) A misdemeanor, as defined by section 6-2 of the statutes has in fact been committed and the peace officer has reasonable grounds for believing that the person to be arrested has committed it and has reasonable grounds for believing that the person:

“(A) Will not be apprehended unless immediately arrested; or

“(B) May cause injury to himself or others or damage to property unless immediately arrested; or

“(C) May destroy or conceal evidence of the commission of such misdemeanor.” [Emphasis supplied]

4 . “The Riverton Municipal Code, at § 18-6, defines the powers of the Municipal Police relative to arrest:

“ ‘Policemen shall, at all times, have power to arrest, without process, and [sic] all cases where any such offense shall be committed or attempted in their presence

“ ‘ . . . all policemen, as conservators of the peace, shall have power to arrest or cause to be arrested, with or without process, and take before the Police Judge all persons . . . who shall be found in the act of violating any ordinance or who may be reasonably suspected of having committed any crime or misdemeanor . . . ’ ” [Prom appellant’s brief]

5 .“No person shall be deprived of life, liberty, or property, without due process of law; . . . ” Fifth Amendment, Constitution of the United States.

“ . . . nor shall any State deprive any person of life, liberty, or property, without due process of law; . . . ” Section 1, Fourteenth Amendment of the Constitution of the United States.

“No person shall be deprived of life, liberty or property without due process of law.” Article 1, Section 6, Constitution of the State of Wyoming.

6 . Section 35-347.31, W.S.1957, 1975 Cum. Supp., is entitled, “Unlawful manufacture or delivery; counterfeit substance; unlawful possession.” Pertinent portions thereof are as follows:

“(a) Except as authorized by this act [§§ 35-347.1 to 35-347.55], it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.

* * * * *

“(c) It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of his professional practice, . . . Any person who violates this subsection is guilty of a misdemeanor and may be imprisoned in the county jail not more than six (6) months and fined not more than one thousand dollars ($1,000.00) . . . ”

7 . Lofton v. State, supra.

In Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 566, 91 S.Ct. 1031, 1035-1036, 28 L.Ed.2d 306 (1971), the United States Supreme Court said:

“The State, however, contends that regardless of the sufficiency of the complaint to support the arrest warrant, the Laramie police officer who actually made the arrest possessed sufficient factual information to support a finding of probable cause for arrest without a warrant. In support of this proposition, the State argues that a reviewing court should employ less stringent standards for reviewing a police officer’s assessment of probable cause as a prelude to a warrantless arrest than the court would employ in reviewing a magistrate’s assessment as a prelude to issuing an arrest or search warrant. That proposition has been consistently refected by this Court.

United States v. Ventresca, 380 U.S. [102], at 105-109, 85 S.Ct. 741, at 746, [13 L.Ed.2d 684] ; Aguilar v. Texas, 378 U.S. [108], at 110-111, 84 S.Ct. [1509], at 1511-1512, [12 L.Ed.2d 723] ; Jones v. United States, 362 U.S. [257], at 270-271, 80 S.Ct. [725], at 735-736, [4 L.Ed.2d 697], And the reason for its rejection is both fundamental and obvious: less stringent standards for reviewing the officer’s discretion in effecting a war-rantless arrest and search would discourage resort to the procedures for obtaining a warrant. Thus the standards applicable to the factual basis supporting the officer’s probable-cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate’s assessment. See McCray v. Illinois, 386 U.S. 300, 304-305, 87 S.Ct. 1056, 1058-1059, 18 L.Ed.2d 62 (1967).” [Emphasis supplied]

8 . It was held in Craft v. State, 202 Miss. 43, 30 So.2d 414, 415-416, in considering statutes such as our § 7-12.3, W.S.1957, 1975 Cum.Supp.:

“ . . . The statute is declaratory of the common law and under it there must be probable cause to believe that (1) a felony has been committed, and (2) that the person to he arrested is the guilty party. Howell v. Veiner, 179 Miss. 872, 880, 176 So. 731. It is not enough that there is good ground to believe that a felony has heen committed, hut the ground for the belief must include also as an element essential to the right to arrest that the party to he arrested is the person guilty of the felony. Without the second element the first had as well not exist." [Emphasis supplied]

In People v. Hornal, 29 Ill.App.3d 308, 330 N.E.2d 225, 230, the court said :

“The ultimate test (for probable cause in a warrantless arrest), however, is whether an offense has been committed and the arresting officer has reasonable grounds to believe the person arrested has committed it . . .” (Citing other Illinois cases) [Parenthetical matter supplied]

9 . It is said in Annotation: 28 L.Ed.2d, “Arrest — Probable Cause,” at page 995:

“ . . . [I]n Mallory v. United States (1957) 354 U.S. 449, 1 L.Ed.2d 1479, 77 S.Ct. 1356, where a woman who lived in the same apartment building as the accused and his two grown nephews was raped by a masked man whose general features were identified to resemble those of the accused and his two nephews, and where the accused and the two nephews were apprehended by the police as suspects and all three were taken to the police station for interrogation, the court, besides reversing the accused’s rape conviction on other grounds, recognized that whomever the police arrest, they must arrest on prohahle cause, and that it is not the function of the police to arrest, as it were, at large and use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on probable cause." [Emphasis supplied]

10 . 5 Am.Jur.2d, Arrest § 45. Suspicion and suspicious circumstances. See Note 2 for further authority: Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; State v. Cuezze, Mo., 249 S.W.2d 373; Feguer v. United States (CA8 Iowa) 302 F.2d 214, cert. den. 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110; Young v. State, 234 Md. 125, 198 A.2d 91; Commonwealth v. Dorsey, 212 Pa.Super. 339, 243 A.2d 176; Annotation: 28 L.Ed.2d 978, 986 § 3[c],

11 . It is said in Annotation: 28 L.Ed.2d 978, 986 § 3[c], supra, (WUteley v. Warden, supra) :

“The Supreme Court has emphasized that mere suspicion or good faith on the part of arresting officers is not sufficient to constitute probable cause for an arrest.

“Thus, in Director General of Railroads v Kastenbaum (1923) 263 US 25, 68 LEd 146, 44 SCt 52, the court, in a civil action for false imprisonment, affirmed a judgment in favor of the plaintiff and stated that good faith on the part of the defendant was not enough to constitute probable cause for the plaintiff’s arrest; that good faith must be grounded on facts within the knowledge of the person responsible for the arrest, which facts in the judgment of the court would make the good faith reasonable; that the want of probable cause, certainly in the absence of proof of guilt or conviction of the arrestee, was measured by the state of the knowledge of the person responsible for the arrest, not by his intent; and that the question was not whether the person responsible for the arrest thought the facts to constitute probable cause, but whether the court thinks that such facts constituted probable cause.

“In Mallory v United, States (1957) 354 US 449, 1 LEd2d 1479, 77 SCt 1356, it was recognized that the police could not arrest upon mere suspicion, but only upon probable cause.

“In Wong Sun v United States (1963) 371 US 471, 9 LEd2d 441, 83 SCt 407, the court recognized that an arrest with or without a warrant had to stand upon firmer ground than mere suspicion,

“Holding that probable cause for an arrest was lacking, in Beck v Ohio (1964) 379 US 89, 13 LEd2d 142, 85 SCt 223, the court stated that it could assume that the officers acted in good faith in arresting the accused, but that good faith on the part of the arresting officers was not enough.”

12 . 5 Am.Jur.2d, Arrest § 45, supra. See also McCrackin v. State, 150 Ga. 718, 105 S.E. 487; People v. Ward, 226 Mich. 45, 196 N.W. 971; Manning v. Atchison, T. & S.F.R. Co., 42 N.M. 381, 79 P.2d 922; and State v. Hughlett, 124 Wash. 366, 214 P. 841.

13 . Adams v. State, 137 Tex.Cr.R. 43, 128 S.W.2d 41.

In suppressing evidence from a search following an arrest questioned as having been made without probable cause, the United States Supreme Court in United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210, held that the fact that the accused was sitting in a car next to the driver who was pointed out to the police as having in his possession counterfeit gasoline-ration coupons did not constitute facts sufficient to support a probable-cause conclusion that the accused was also committing the crime.

Rejecting the contention that probable cause existed, the Court observed that at the time of the arrest the officers did not have any information pointing to possession of coupons by the accused unless just being in the car amounted to possession. In holding that the mere presence in the vehicle did not amount to possession, the Court noted that there was no evidence to show that the accused was in the vehicle when the coupons were obtained by the other party who had physical possession of them and that the accused had not known of any conversation on the subject — nor was it shown that he knew of the presence of the coupons in the car.

14 . The United States Supreme Court, in Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, said:

“These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be of those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.”

15 .One of the officers said :

“ . . . [T]he other three subjects (plaintiff, Jasch and Gina) were taken into custody for suspicion of having in their possession a contraband substance ...” [Emphasis and parenthetical matter supplied]

Another said:

“At this time the other three subjects (including plaintiff) were taken into custody on the suspicion of having in their possession a controlled substance without prescription . . . ” [Emphasis and parenthetical matter supplied]

16 . When asked in his deposition what probable cause he was relying on to make the arrest of the plaintiff, Officer Barber said:

“I believe there was probable cause as there was suspected contraband found in the vehicle which the subjects were occupying at the time.”

17 . The constitutional standard for probable cause for arrest which the defendant may urge in a criminal case is one which

“ . . . constitutes reasonableness for purposes of defining probable cause under the fourth amendment for the protection of citizens against governmental overreaching . . . ” Bivens, supra.