OPINION OF
LEWIS, J.,WITH WHOM KOBAYASHI, J„ JOINS, CONCURRING IN PART AND DISSENTING IN PART
I concur in the disposition of the case as to the malicious prosecution claim. As to false imprisonment, I would reverse.
Defendants’ motion for a directed verdict as to the false imprisonment claim was based solely on the contention of insufficiency of the evidence, without reliance on the district court conviction. In fact, the contention that the rule as to the conclusive effect of the conviction applies to the false imprisonment claim as well as the malicious prosecution claim, was made for the first time during oral argument in this court.
At first blush it appears that plaintiff has not been deprived of the opportunity for presentation of evidence and argument,1 since he had that opportunity as to the malicious prosecution claim. However, I am of the opinion that there are material differences in the law applicable to the two types of claim which call for withholding of a decision on this new point until such time as a case reaches this court in which the issue has been argued fully.
False imprisonment has been distinguished from malicious prosecution as follows:
* * * False imprisonment is the invasion of the interest in freedom from unlawful confinement,2 while a malicious prosecution is the unlawful use of legal procedure to bring about a legal confinement. HARPER AND JAMES, The Law of Torts, vol. 1, sec. 3.9.
*397When the action is for malicious prosecution:
* * * the interests involved in the action are afforded only limited protection. Other interests of great social importance are so balanced against the interest primarily protected as to require extensive restrictions on the latitude that would otherwise be allowed in the recovery of damages. It is highly desirable that those reasonably suspected of crime be subjected to the process of the criminal law for the protection of society. * * * Id. § 4.2.
The rule that, in an action for malicious prosecution, a conviction conclusively establishes probable cause even though reversed, carries out the policy of limiting actions for malicious prosecution. When added to the requirement that a plaintiff in such an action must have obtained an acquittal or other termination of the criminal proceedings in his favor,3 it simply means that a favorable termination of the criminal proceeding on the second round comes too late. In false imprisonment, on the other hand, there is no requirement that the criminal proceeding shall have terminated at all.4
Moreover, any rule that a subsequent conviction signifies probable cause for an arrest already made would have to be carefully applied and restricted to those cases in which the evidence determinative of guilt was the same information as that which the police officers had at the time of the arrest. Otherwise, an illegal arrest could be justified by investigative work done afterward, resulting in a conviction when there was no probable cause at the time of the arrest. As stated in Collins v. Owens, 77 Cal. App. 2d 713, 176 P.2d 372 (1947), even though a person is guilty of an offense the arrest without a warrant may still be illegal.
When the conclusive effect rule is limited in scope as it must be in false imprisonment cases, the desirability of applying the rule at all in these cases is in grave doubt and merits full argument. What is left for application of the rule is the *398very area of the law where the court’s exercise of its supervisory jurisdiction is most important or among the most important. I refer to the delicate balance between the constitutional rights of citizens and the necessities of law enforcement in encounters between the police and the citizens when the police must make on-the-spot decisions. As stated in the comments on proposed Article 250 of the Model Penal Code of the American Law Institute entitled “Disorderly Conduct and Related Offenses,” Tentative Draft 13, p. 2:
* * * this is a most important area of criminal administration, affecting the largest number of defendants, involving a great portion of police activity, and powerfully influencing the view of public justice held by millions of people.
On frequent occasions, this court has been called upon to maintain the balance between constitutional rights and law enforcement necessities, and I see no reason why the court should not undertake this task just because the issue comes before it in a civil action for redress of deprivation of those constitutional rights. This is especially so when the conviction that is given conclusive effect not only has been set aside but also is one that could not have stood under principles of constitutional law already laid down by this court. If police officers proceed under a statute already adjudged invalid, that is not an arrest upon probable cause. Cf. Pierson v. Ray, 386 U.S. 547, 555, 557 (1967).
Here, the disorderly conduct statute had not been adjudged unconstitutional but the case is the same. The statute had been brought within constitutional limits by the construction put upon it in State v. Butler, 51 Haw. 180, 455 P.2d 4 (1969). That case concerned the very portion of the disorderly conduct statute, HRS § 772-2, paragraph (l),5 under which *399plaintiff was charged. The record shows that this portion of the statute as construed in Butler could not support the conviction.
The incident occurred April 14, 1971. On that date plaintiff was arrested without a warrant, for disorderly conduct committed in the presence of the defendant officers some time after 9 P.M. at a business address on Cooke Street, Honolulu, where plaintiff had gone in the course of his business as general manager of a burglar alarm company.
According to defendants, they suspected plaintiff of burglary and, as was argued in this court, arrested him after “he refused to identify himself and yelled, talked loud, and defied the police and swore at them in a high burglary area.” There were three police officers at the scene. Plaintiff testified he weighed 115 pounds at the time. Officer Lance Carreira, called as an adverse witness by plaintiff, testified:
Q. * * * Before you arrested Mr. House, was there any time you felt the situation was out of control, where you couldn’t handle — you or the other two officers couldn’t handle it?
A. No, sir.
Officer Gerald Lee, also called by plaintiff as an adverse witness, testified:
Q. You didn’t fear that there was going to be a fight between you and him or him and any of the officers?
A. No.
Q. You didn’t fear that the situation was getting out of control, at any time, did you?
A. Well, as far as controlling him, fine, but we had some bad time in controlling him from his mouth * * * .
Q. Are you trained — from your training as a police officer to handle situations you can keep the peace without making an arrest?
A. Keep the peace without an arrest? Yes, I think so, I think I can.
On the question of plaintiff’s alleged refusal to identify himself, Officers Lance Carreira and Gilbert Ane testified that if plaintiff had presented identification when asked for it, they would have found out that he had legal business in the *400area and he wouldn’t have been arrested. Officer Gerald Lee put it this way:
A. Well, if we had cooperation, I’m pretty sure everything could have been avoided and nobody would be here, today, sir. * * *
Q. Because he wouldn’t show you his identification [he got arrested]?
A. Because of what happened, his conduct, behavior and language.
Plaintiff’s conviction in the district court was in the teeth of State v. Butler, supra, 51 Haw. 180, 184-85, 455 P.2d 4, 7 (1969), in which the court held:
Our examination of the State’s evidence compels us to conclude that a conviction for disorderly conduct cannot be sustained.
Evidence that defendants argued with the police in an insolent and rude manner and that they refused to obey orders did not constitute disorderly conduct without additional evidence showing that a breach of peace was likely to occur. Thompson v. City of Louisville, 362 U.S. 199, 206 (1960). By touching the arresting officer Sarant did not commit the offense because the evidence fails to show that the touching was done in a violent, threatening or fighting manner. Also, we believe that the evidence was insufficient to show that a breach of the peace was imminent. * * * [E]vidence fails to show any violence or real threat of violence, any loss of control of the crowd or any fear in the minds of the policemen in charge that the situation would become uncontrolled. * * *
Further, we believe that the legislature did not intend the actions of the defendants complained of and proven at the trial to constitute the crime of disorderly conduct. Otherwise it would be of little value to hold that one has a constitutional right to dissent peacefully and lawfully if it can be done only on pain of arrest and trial.
So here, it was not disorderly conduct for plaintiff to refuse to identify himself. He had the right to remain silent. See State v. Grahovac, 52 Haw. 527, 533-34, 480 P.2d 148, 153 (1971). Even if he argued with the police in an insolent and *401rude manner and refused to obey orders, that too did not constitute disorderly conduct. It is undisputed that the police had the situation under control and there was no fear in their minds that they couldn’t handle it. While the district court conviction was set aside without review on the merits because of lack of prosecution after an appeal for trial de novo, it is a conviction that could not have stood under Butler. I would not give it conclusive effect.
Before further review of the verdict directed for the defendants, it is necessary to note the provisions of paragraph (4) of section 772-2, which did not figure in the conviction in the district court but does play a part in this case.6 It is not clear under which portion of the statute the court directed the verdict.
Though the burden of proof was on defendants to show probable cause for the arrest7 the court directed the verdict for defendants at the end of plaintiff’s case. While the court could take the question of probable cause from the jury and determine it itself if the evidence as to the facts necessary to constitute probable cause was clear,8 this was not such a case.
The police, called as adverse witnesses, testified as above noted. In connection with the statement that plaintiff was “loud and boisterous” they further testified that at that time three or four people came out of a building on the opposite side of the street. They appeared to be workers there. These people “were looking directly at us.”
*402The police variously testified that they “assumed they [the people across the street] were trying to find out what was occurring,” and that they “assumed that’s why [because they were annoyed] the people came out of the budding. ” Officer Gerald Lee testified:
A. There were no people, up to the time I observed Mr. House coming, standing in that doorway there but I would say, because of our commotion out there, this caused them to come out.
Q. So the fact that there were people there and Mr. House was talking loudly, it was your feeling that he was already violating the “disorderly conduct” statute?
A. By being abusive, his behavior, his language.
After plaintiff was placed under arrest “an attempt was made to locate these people but they had evidently left the area.”
Plaintiff’s testimony was that his hearing was impaired temporarily by some work he had done earlier that evening on a bell system that gave out deafening noise, and for that reason “I might have been talking a little louder than usual. ” As to the people across the street, he testified that he had worked in that area many times, and “at that time of the evening, that’s when they close up, and I’ve seen those people out there, a number of times. ” As to the cause of his arrest, plaintiff’s testimony was in direct conflict with that of the police officers. He testified that he identified himself and the officers turned away but arrested him when he pressed them for information as to who their supervisor was.
With this conflict in the testimony, the case could not be withdrawn from the jury. Pierson v. Ray, supra, 386 U.S. 547, 557 (1967). While the police could not be expected to know the habits of the people across the street,9 they did know it was an industrial area. The conflict in the testimony as to the volume *403of noise in itself raised a question for the jury. Moreover, as held in Pierson, to constitute a defense to false imprisonment the reasonable belief of the officers must be a good faith belief. Plaintiff’s testimony assailed the officers’ good faith and raised a question as to whether they did in fact believe that he was guilty of disorderly conduct. While the court ruled that, believing what the defendant said, his case still was not sufficient, I cannot agree.
Plaintiff further argues that defendant officers could not justify their arrest of plaintiff for conduct which was provoked by their own actions, citing Lane v. Collins, 29 Wis. 2d 66, 138 N.W.2d 264 (1966) and Pavish v. Meyers, 129 Wash. 605, 225 P. 633 (1924). On my view of the case, I do not reach this issue.
I would affirm as to the claim for malicious prosecution, and remand for a new trial as to the claim for false imprisonment. In that trial, I would not give conclusive effect to the district court conviction, though I would admit it in evidence together with the record of the disposition of the charge in the circuit court.10
See In re Taxes, Hawaiian Land Co., 53 Haw. 45, 52-53, 487 P.2d 1070, 1076 (1971); Fujioka v. Kam, 55 Haw. 7, 9, 514 P.2d 568, 570 (1973).
An unlawful seizure of the person is a violation of a constitutional right under the Fourth Amendment of the United States Constitution and Article I, section 5, of the State Constitution. State v. Joao, 56 Haw. 216, 533 P.2d 270 (1975).
Restatement of the Law, Torts, vol. 3, § 658.
Collins v. County of Los Angeles, 241 Cal. App. 2d 451, 50 Cal. Rptr. 586 (1966).
HRS § 772-2 Disorderly conduct. Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:
(X) Uses offensive, disorderly, threatening, abusive, or insulting language, conduct, or behavior;
HRS § 772-2 Disorderly conduct. Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:
s}: s}:
(4) Shouts or makes a noise either outside or inside a building during the nighttime to the annoyance or disturbance of any three or more persons;
Lopez v. Wigwam Dep’t Stores, 49 Haw. 416, 423, 421 P.2d 289, 293-294 (1966); Ford v. The Oceanic Steamship Co., 3 U.S.D.C. Haw. 239, 241 (1907).
Lopez v. Wigwam Dep’t Stores, supra, 49 Haw. 416. 422. 421 P.2d 289. 293 (1966).
The test of probable cause is whether the facts and circumstances within the officers’ knowledge or of which they have reasonably trustworthy information are such as to warrant a man of reasonable caution in the belief that an offense has been or is being committed. State v. Gustafson, 55 Haw. 65, 69, 515 P.2d 1256, 1259 (1973); State v. Chong, 52 Haw. 226, 231, 473 P.2d 567, 571 (1970); State v. Texeira, 50 Haw. 138, 142, 433, P.2d 593, 597 (1967).
See Collins v. Owens, supra, 77 Cal. App. 2d 713, 176 P.2d 372 (1947).