NO. 8 3 - 5 2 7
I N THE SUPAREMECOURT OF THE STATE O F M N A A
OTN
1984
IIOSALIPJE VOGEL. ,
P l a i n t i f f and A p p e l l a n t ,
VS.
GIBSON'S DISCOUNT CENTERS; e t a l . ,
D e f e n d a n t s and Res-pondents.
Appeal from: D i s t r i c t Court o f t h e Thirteenth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e Countv o f Y e l l o w s t o n e
Honorable Diane G . B a r z , J u d a e p r e s i d i n a .
C o u n s e l of Record:
For Appellant:
Lewis E. Brueaqemann, B i l . l i n u s , Montana
For Respondents:
Herndon, H a r p e r and Flunro, B i l l i n g s , Montana
McNamer, Thompson & Cashmore, B i l l i n g s , Montana
Submitted. on b r i e f s : J a n u a r y 1 2 , 1984
Decided: 1 0 , 1 38 4
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Clerk
Mr. Justice John Conway Harrison delivered the opinion of
the Court.
This action stems from an incident which occurred on
the premises of respondent Gibson's Discount Centers' store
in Billings, Montana, where appellant Vogel was accused of
shoplifting. Appellant brought an action against the above
named respondents for false arrest, which was dismissed by
the District Court on respondents' motions for summary
judgment. This appeal follows.
The facts of this case are very much in dispute.
However for purposes of ruling on the motions for summary
judgment, the trial court accepted appellant's version of
the facts as true and they are set forth below.
On May 28, 1983, appellant, her aunt and appellant's
ten month old child traveled from Hardin, Montana to
Billings, Montana. When they arrived in Billings, they went
directly to the Gibson's store. The two women entered the
store, leaving the child sleeping in appellant's car. The
aunt obtained a shopping cart, but appellant carried only
her diaper bag, which doubled as a purse. Inside the store
the two split up, appellant going to the shoe department and
her aunt to the lawn department. Appellant tried on several
pairs of sandals before selecting a pair she wanted. As she
left the shoe department she placed the sandals in her bag
with the heels exposed. The sandals were bound together
with a plastic tie on which was the price tag. Both the
heels and the price tag were outside the bag. At this point
a security officer, an employee of Gibson's, began her
surveillance of appellant.
Appellant rejoined her aunt, showed her the sandals,
and r e t u r n e d them t o t h e i r former p o s i t i o n i n t h e bag. The
p a i r proceeded t o the check out counter where t h e a u n t began
unloading her shopping cart. Appellant inquired of the
c l e r k where she might purchase a b a t t e r y , and was t o l d t o
try the electronics department. She walked to the
electronics counter and made her request to the clerk.
While appellant was waiting for the clerk to find the
battery, the security o f f i c e r approached her and informed
her t h a t she had watched a p p e l l a n t p u t t h e s a n d a l s i n her
bag. The s e c u r i t y o f f i c e r asked t h a t she be allowed t o look
i n a p p e l l a n t ' s bag, but a p p e l l a n t d e c l i n e d . She was then
e s c o r t e d t o an o f f i c e i n t h e r e a r of the store. En r o u t e
appellant was advised that she was being accused of
s h o p l i f t i n g and read her Miranda r i g h t s .
I n t h e r e a r of t h e s t o r e , a p p e l l a n t ' s bag was emptied.
The contents included the sandals and a comb which was
a l l e g e d l y unpaid for also. The p o l i c e were summoned and
they a r r i v e d a s h o r t time l a t e r . Appellant was placed under
a r r e s t on s u s p i c i o n of t h e f t and t r a n s p o r t e d t o t h e p o l i c e
station. She was later convicted after a jury trial in
B i l l i n g s Municipal Court.
Appellant brought t h i s a c t i o n f o r f a l s e a r r e s t i n t h e
D i s t r i c t Court, a l l e g i n g t h a t t h e r e was no probable cause
f o r her a r r e s t . A f t e r a period of d i s c o v e r y t h e respondents
a11 moved f o r summary judgment, arguing t h a t a s a m a t t e r of
law t h e r e was probable cause f o r her a r r e s t . The D i s t r i c t
Court acquiesced i n t h i s argument and g r a n t e d t h e motion f o r
summary judgment, d i s m i s s i n g t h e claim. T h i s appeal i s from
the order d i s m i s s i n g t h e cause of a c t i o n .
The D i s t r i c t Court r u l e d t h a t s i n c e t h e s a n d a l s were
not in full view, the security officer and the police
officers had probable cause to arrest appellant as a matter
of law. This conclusion was based on Section
46-6-501(1)(a), MCA, which provides that removing
merchandise from full view while on the premises of a
merchant is prima facie evidence of "concealment."
"Concealment" is defined in that section to mean, "[Alny act
or deception done purposely or knowingly upon or outside the
premises of a wholesale or retail store or other mercantile
establishment with the intent to deprive the merchant of all
or part of the value of the merchandise." (Emphasis
supplied.) Thus concealment, as defined there, includes
both an act or deception and the intent to deprive, which
are the basic elements of the crime of theft. See Section
45-6-301(1)(b). Since the sandals were in less than full
view, the court concluded that there was prima facie
evidence of both the act and requisite intent, and probable
cause to believe appellant had committed theft existed as a
matter of law.
While it may be true that there was prima facie
evidence of "concealment" as defined in Section 46-6-501,
MCA, that term has limited meaning. The definition of
"concealment" in that section is prefaced by the phrase, "As
used in this part. .." As used in that part of the code,
"concealment" authorizes a merchant to search a suspected
shoplifter, it does not by operation of law give him
probable cause to arrest the suspected shoplifter. Section
46-6-503(2), MCA. In fact Section 46-6-502(3) which is in
that same part of the code authorizes arrest by a merchant
only upon probable cause to believe that shoplifting has
occurred. It does not allow an arrest after the simple act
of concealment. Probable cause may exist as a result of a
stop pursuant to Section 46-6-503, or it may exist prior to
such a stop, but it must exist. It may not be inferred
solely from the act of concealment.
In the present case that is exactly what the trial
court did in ruling tha-t probable cause existed as a matter
of law because of the concealment. However, there remain
issues of material fact which should be resolved at trial,
and do not make this case ripe for summary judgment. Cereck
v. Albertson's Inc. (1981), 195 Mont. 409, 637 P.2d 509.
Where the heels of the shoes and the price tag were exposed,
and the woman was still in the store and had not gone
through the check out counter, there remains an issue of
fact on the existence of probable cause to believe appellant
had the requisite intent to deprive. Therefore summary
judgment was in error.
We note that the parties have brought to our attention
on appeal the fact that appellant was convicted of theft
after a jury trial in Billings Municipal Court. Respondents
claim this conclusively established probable cause pursuant
to our ruling in Duran v. Buttrey Foods, Inc. (Mont. 1980),
616 P.2d 327, 37 St.Rep. 1545. Since this argument was
first raised on appeal we decline to consider it. See
Hanley v. Department of Revenue (Mont. 1983), 673 P.2d 1257,
40 St.Rep. 2054. However this does not preclude
respondents from presenting this argument to the District
Court on remand. If the court finds Duran controlling, the
case should be dismissed.
Reversed and remanded for further proceedings in
conformance with t h i s opinion.
W e concur:
Mr. J u s t i c e J o h n C . Sneehy:
I concur i n t h e r e s u l t .
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