Lehman Ross and Patricia St. Angelo VS Baton Rouge City Police Deparment, District Attorney Doug Moreau, Police Chief Pat Englade, City of Baton Rouge, Officer Robert E. Gann, Officer Matthew Johnson, Sergeant Franklyn Wolfanger and ergeant Milton G. Reed
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NOT DESIGNATED FOR PUBLICATION COURT OF APPEAL STATE OF LOUISIANA FIRST CIRCUIT 2009 CA 0360 LEHMAN ROSS PATRICIA ST ANGELO VERSUS BATON ROUGE CITY POLlCE DEPARTMENT DISTRICT ATTORNEY DOUG MOREAU POLICE CHIEF PAT ENGLADE CITY OF BATON ROUGE OFFICER ROBERT E GANN OFFICER MATTHEW JOHNSON SERGEANT FRANKLIN WOLFANGER SERGEANT MILTON D REED Judgment On OCT 2 7 2009 rendered Appeal from the 19th Judicial District Court Parish of East Baton Rouge State of Louisiana Suit Number 496 371 Division I 24 The Honorable R Michael Caldwell Arthur Hannibal Joiner Baton Rouge LA Judge Presiding Counsel for Plaintiffs Appellants Lehman Ross Patricia St Angelo James L Hilburn Counsel for Defendants Appellees Baton City Rouge LA of Baton Rouge Matthew Johnson Wolfanger R Christopher Baton Nevils Rouge LA BEFORE Milton Reed Frank Robert Gann Counsel for Defendant Appellee District Moreau Attorney Doug DOWNING GAIDRY AND McCLENDON JJ DOWNING J Plaintiffs judgment that appellants Lehman Matthew Johnson following St Angelo appeal and and Englade police officers Robert those thereby dismissed affirm the trial reasons we Pat a by the Baton Rouge Sgt Franklin Wolfanger and Sgt City Police collectively Patricia the motion for summary judgment filed granted City Police Department Police Chief Gann and Ross Milton E Reed D For the defendants court judgment PERTINENT FACTS AND PROCEDURAL HISTORY Ross and Ms Mr kidnapping of Sonya Cleveland Johnson Ross and Ms St Boss an St constitutional was were reasons for telling the Ms St case Angelo judgment summary were court in the found in further area the identification the defendants prosecution and violation judgment the trial saw the not probable explained that where the on June 14 of various It there not s to arrest was the stated in its oral question of whether people at the time circumstantial evidence area of the were carjacking There the two was only question in this these carjacking terminated by Cleveland Johnson that they a The carjacking cause court whether Cleveland Johnson plaintiffs They admitted being in area Mr motion for summary judgment which a and Mr Ross committed the is whether the officers had The trial upon the identification of against question is T he truth when he said he Angelo simple Ultimately the charges against filed suit malicious arrest granting the partly and carjacking dismissed rights The City Police filed In granted based alleged eyewitness Angelo claiming false arrested for were June 17 2001 on Mr Ross and Ms St 2002 Angelo They They was were positive people who got out of the car after the accident and walked away 1 The District Attorney Doug Moreau was nallled in the lawsuit but Judgment 2 was not included in the Motion for SUlllmary Judgment was signed on November 18 2008 judgment this and from that arises appeal STANDARD OF REVIEW courts Reviewing review summary criteria that govern the trial i appropriate the 2607 p 4 if the to La 5 22 09 judgment material fact and that as a if any mover novo the usmg same genuine issue of material fact and whether matter to of law Cutsinger interrogatories show that there is is entitled Redfern 08 v Judgment shall be rendered forthwith 949 answers with the affidavits de determination of whether summary judgment is 12 So 3d 945 pleadings depositions together s whether there is any e is entitled movant court judgment to judgment as and admissions genuine no a matter on issue of law file as to LSA C C P art 966B DISCUSSION The as to issue only whether the In order to police prevail in had a probable initiated or proof continued without a man 2 1987 An action for malicious clements proceeding was EAST BATON v Probable the knowledge of trustworthy information of average caution in the belief that the person committed the crime Angelo prosecution plaintiffs Miller cause exists when facts and circumstances within the justify 2 and malicious and Ms St show that the criminal probable officer of which he has reasonable and issue of material fact genuine to arrest Mr Ross arrest to a 511 So 2d 446 452 ROUGE SHERIFF S DEPT arrest cause suit for false sustain their burden of must is whether there is appeal on are being cause for arresting sufficient to arrested has Id prosecution in a the commencement criminal proceeding continuance of lies in all cases here there is a 2 concurrence its of the causation original criminal proceeding legal original proceeding 3 its bona fide termination in f lVor of the present plaintiff 4 the absence of probable cause for such proceeding 5 the presence of malice therein 6 damage conforming to legal standards resulting to plaintiff Id Malice may be inferred from the lack of probable cause or interred from a finding that the delendant acted in reckless disregard of the other person s rights following by Id the I or present defendant against plaintiff who was an defendant in the at 453 3 OVERVIEW OF THE EVIDENCE Sonya Boss the Crime Victim Boss testified at the Sonya said that while she intersection an said that she never was stopped preliminary examination at a red light at at the carjacker s 24 2002 April s side front seat of her got into the backseat when the car Washington The She said spun out of control and they had traveled only to rest came on She car face but did notice that his hands black She said that she also heard the back door open and close but someone She the Government Street and I I0 unknown person got into the driver looked on were only assumed short distance a the grassy shoulder at the stop she heard her car Street off ramp following aspects 1 She said that of Ms Boss s immediately after doors open and the person or testimony the pertinent to car came a persons leave the vehicle and 2 She said that she sat in her vehicle for 3 She said that when she are a run few seconds before got outside of the off getting nobody was around car out to help her She said the 4 could car not be driven because it had walked the short distance home and called the 5 Ms Boss said she never saw the carjackers a flat tire so she police nor did she any other see person who may have witnessed the incident shortly after she arrived Ms Boss testified that asked her being to return to the taken to the suspects scene in Ms hopes of identifying the Boss said that she was two police called and suspects who unable to were identify the Ms Boss said the officers told her Cleveland Johnson had witnessed the She reiterated that she told the officers that she had accident alleged witness took her car home the to or anybody walk home else after leaving the She testified that her 4 car or car was never during the five not impounded seen the minutes it for evidence In fact the her husband police helped change the tire they could drive the so vehicle home Cleveland Johnson the Allee ed Evewitness only evidence from this alleged eyewitness Cleveland Johnson is The affidavit signed nearly an years after the incident and filed with defendants seven motion for summary judgment In his affidavit Mr Johnson stated that to an the automobile accident and observed and car start walking averred that he gave the two people brought a see black male and a a the a and subjects he Street The affidavit did the saw of out He Dalrymple Drive Rouge Police officers out and he of the vehicle and walk mention whether he did not witness of the accident scene get was a clothing description of those short while later Baton to he white female get Street towards physical white female a as black male and a Washington officer He also said that Washington on on police identified them positively east east June 17 2001 on did or not Ms Boss Matthew Johnson the Arrestine Officer Officer Matthew Johnson stated that he based his Angelo on three factors 1 The 2 The out identified Ross and St of the victim s 3 A statement Ms St Angelo as the people he saw vehicle description of the suspects transported of Ross and St 3 eyewitness getting arrest and Angelo allegedly in the back of his police made to him while she was being car Regarding the witnesses identification the officer testified that he picked Ms St Angelo and dispatch report that 3 In other alleged testimony Mr a Ross walking around white female and Officer Johnson only a black male identified two bases the statement 5 the L S U were eyewitness lakes after up hearing possible suspects in identi fication and Ms St Angelo a a s carjacking in the had he heard their to the not description in the back of his scene arrived He admitted that he area saw a black male and to toward an Ross and Ms a witness the accident there Angelo that she did officer did not Regarding Ms St see not comment of the events and the Angelo as the two on the Angelo and before she s was police s car report that he stopped down leaving the St Washington Mr subject vehicle when she exited her vehicle the saw and asked if the victim Ms Boss and eyewitness explained that he after car lady though was The account s account put into his take that lady s utterance keys was a to Even positively identified discrepancies between accident he asked her about the not walking saw alleged eyewitness about the detained in the back of his mentioned it had was no Johnson people he conflicting victim Ms St saying that they did taken they said he next Officer Johnson also testified that he talked aware was When white female abandon the vehicle The officer said that Mr St Angelo Cleveland Johnson eyewitness help they ignored him and kept Dalrymple them stopped and another officer took Mr Ross Cleveland Johnson Ms Boss leave the vehicle needed have The other officer said that Cleveland Johnson told them Cleveland Johnson claimed they not He said Ms St the radio another officer told him that witnessed the accident that he car on probably would to car while Ms St or driven being the vehicle s car that had been either after to the He said she He added that he stopping Angelo scene was of the responded by thought he had not carjacked ANALYSIS At the outset v State 99 1730 hesitation that subject him arrest if the to no we 11 4 La 00 758 police officer should liability arrest reiterate the Louisiana Supreme So 2d 782 fear that An officer satisfies his is based on probable cause 6 s proclamation in Gibson 788 89 We note without doing his duty in good faith duty of Probable will good faith in making cause an exists when the facts and circumstances within the reasonable and arresting officer trustworthy information caution in the belief that the person the offense Id determination of evidence more establish guilt 788 at a mere probable trial does require not where the source Based on conclude that sufficient to Officer Johnson no questions preclude 1 the probable of fact of the information all factors in seems the unlike cause conflicting must have required to untrustworthy opportunity to offer determining whether Id and 789 cause regarding his finding probable we cause subjective knowledge exist were eyewitness identification physical description 3 the alleged utterance Regarding walk away down identification the eyewitness the he observed the accident and saw a Washington left but did car nor the victim testified that she Conversely not see Regarding was a the the eyewitness description alleged eyewitness said that black male and white female leave the Street toward report seeing the victim leave the no are summary judgment These bases 2 the that it committing proof to convict but three bases for s is or he has of average a man While verification may be explanation and the need for prompt action unverified information furnishes probable of the accused his reputation it is well established that the justify the fine resolution of sufficient 789 at to be arrested has committed not have Id suspicion cause sufficient The determination of The officer need Id than at to are knowledge and of which s or Dalrymple did not promptly left the car after the carjacker s anyone else of the was however and which doors the suspects exited from suspects Officer Johnson could only say black male and white female but that he had record of the description that He car supposed 7 to no recollection and match the suspects kept Therefore a factfinder could not had use the factor as a to determine whether the officer probable cause the Regarding he positive Angelo said where Angelo as sufficient the lady s were no at the man totality of the evidence material fact which would added percent the lady any scene we He then sure s such s the officer Ms car St proclamation alleged utterance testified that the suspect conclude that to arrest Mr Ross arrested were no s questions and Ms St of Angelo of average caution in the belief that these individuals had committed the crimes for which upon the St investigated before the individuals whether the information used a stolen before Ms When asked if he could have not 100 was the evidence and observations justify not report including Ms St Angelo police officers not was Emphasis car but thought was that he did mention that possible all of the to that s car car vehemently denies that she made events to lady possible and that he was Moreover fact exist s was to take that lady keys not Further the record contains on a did however Based was the that it versions of Officer Johnson utterance they are reiterated that it alleged mentioned it never declared responded was description we they were conclude that there being arrested are no genuine preclude the entry of summary judgment in this Based issues of matter DECREE For the above appeal is assessed reasons we affirm the trial against Lehman Ross court and Patricia St AFFIRMED 8 judgment Angelo The cost of this
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