Rodarte Ex Rel. Rodarte v. City of Riverton

THOMAS, Justice

(dissenting).

■ I am compelled to dissent from the decision, conclusions, and views of the majority because my examination of the record and analysis of the pertinent authorities have led me to such markedly different conclusions and views that in my judgment the decision of the trial court should be affirmed in all respects. While the conclusions and propositions of law announced by the majority seductively appear to be reasonable and justified, they present erroneous principles in the following respects:

1. The majority opinion does not recognize the process of balancing the rights and interests of the individual and the rights and interests of all members of the public which must be pursued in an instance such as this.
2. The majority opinion fails to distinguish information sufficient for probable cause from the quantum of evidence necessary to convict.
3. The majority opinion has ignored applicable authorities which demonstrate that in this instance there was probable cause in the constitutional context.
4. The majority opinion erroneously injects principles of negligence into this area of tort law which is not governed by negligence precepts.
5. The majority opinion discusses the law of arrest and furnishes an advisory opinion in an abstract context.
6. The majority opinion structures a psychological injunction forbidding arrest.

The case before this court is not a particularly dramatic one. I suggest a more dramatic, albeit hypothetical, factual situation. I would invite you to go with me into a stark room off a hallway lighted by a single unshaded bulb where there are six *1262men and one corpse. The dead man has been shot twice through the chest, and on the table, surrounded by a set of chairs, there are some whiskey bottles, some glasses, a deck of cards, some poker chips, and a .38 caliber revolver. We enter this room, you and I, with two police officers whose attention fortuitously was attracted by the sound of the pistol shot. We were all close by, and no one has left through the single door of this room. The police officers have read this majority opinion, and have been instructed as to its application. Both of them have families, and each has a normal interest in his financial welfare and security and that of his family. We watch in dismay and disbelief while these two police officers withdraw to summon the coroner and an ambulance, without arresting anyone. This result, while unacceptable, is mandated by the majority opinion. The mere presence of any of these six men in the room, coupled with the fact of homicide is, according to the majority, insufficient probable cause to arrest.

Turning then to a critical examination of this case, the decision of the majority of this court hinges upon an elevation of the individual rights of the plaintiff over the interests of all, including the plaintiff. This priority is signaled by the unnecessary factual justification of the plaintiff and her conduct. The material facts are not in dispute and are much more limited in actuality than the majority opinion would indicate. With respect to the issue which the district court decided, the material facts are that the police officers had an arrest warrant for one Skorcz which had been issued upon a complaint charging him with unlawful distribution of a controlled substance to minors. The officers located a pickup truck which they knew was owned by Skorcz, and seated in the vehicle at that time were two male individuals and two female individuals. Skorcz was seated by the right hand door; the plaintiff was seated next to Skorcz; the other female was between the plaintiff and the other male, the driver. The officers inquired of the group in the pickup for Skorcz, and Skorcz identified himself. He was arrested and the other occupants were asked to get out of the vehicle. At that time the officers discovered in the vehicle two plastic baggies containing a substance which they recognized and believed to be marijuana. One of these baggies was located between the door and the seat of the pickup on the right side, and the other baggie was underneath the front seat in close proximity to the place where the plaintiff had been sitting. Based upon these facts the plaintiff and the two other persons were arrested.1 These facts are not disputed.

Given these undisputed facts the officers pursued an entirely reasonable course of action. It was their job to determine, if possible, which one of the occupants of the pickup was, or which ones of the occupants of the pickup were, in possession of the marijuana. If any of them had concealed some of the marijuana on his or her person that fact would have been significant. It was a fact that could be determined, however, only by a thorough search, and the policy of the Riverton Police Department very wisely required that female persons be searched by another female in the privacy of the police station. The officers could not search the *1263girls at the scene. The likelihood of any productive interrogation at the scene was almost nil, and consequently, the officers pursued their investigation by the only logical approach. The other occupants of the pickup were arrested and taken to the police station where a search of the plaintiff and the information which was furnished to the officers culminated in her exoneration. The exoneration of the plaintiff, however, is not a material factor in an evaluation of probable cause. Every arrest of an innocent person is not, per se, unreasonable. See State v. Hum Quock, 89 Mont. 503,300 P. 220 (1931).

Any arrest situation presents a conflict between the rights of an individual and the community’s interest in protection of the rights of all members of that community. The Supreme Court of the United States, in language quoted in the majority opinion, states:

“ * * * The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests.” Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, 1891 (1949)

The rights described in the Fourth Amendment to the Constitution of the United States and in Article 1, § 4 of the Constitution of the State of Wyoming are expressed not in terms of absolute rights, but those that are protected from unreasonable infringement. A proper determination in any instance demands that the court balance the rights of the individual and the corporate interests of all its citizens. Richardson v. Snow, 340 F.Supp. 1261 (D.Md.1972); House v. Ane, Haw., 538 P.2d 320 (1975); State v. Davis, 50 N.J. 16, 231 A.2d 793 (1967).2

The police power, which is classically exercised in an arrest, is founded in the concept which we call “sovereignty.” The right of the government to enact and enforce laws for the health, safety, comfort, moral and general welfare of the people is an indispensable, essential attribute of sovereignty. State v. Langley, 53 Wyo. 332, 84 P.2d 767 (1938). In fact the police power may be viewed as the essence of, rather than an attribute of, sovereignty. 16 Am.Jur.2d, Constitutional Law, § 259, p. 510 (1964). Under our concept of government sovereignty has its source in and represents a grant from the people who are governed. The Declaration of Independence says:

“ * * * That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, * * *.” 3

The sovereignty of our government then is that which is ceded to it by its citizens in diminution of their individual sovereignty. That which is granted is dedicated to the interests of all the citizens, and must be assumed to have been granted in exchange for the same concession on the part of all others. If such a concept of government is to work it is impossible for the individually retained sovereignty, even though rec*1264ognized as constitutionally protected individual rights, to be absolute.

The resolution of any conflict that occurs between the individual rights and the police power will depend on whether in the balancing process emphasis is to be given to the rights retained by the individual or whether emphasis is to be given to the rights which have been ceded for the interests of all. The majority choose to emphasize the retained rights of the plaintiff in this instance while I contend that the balancing process in this instance requires that emphasis be given to the rights ceded to the community. The concern of our government with the protection of individual rights has been significant to its stability and success. The confidence of our citizens in their government is enhanced by the sure knowledge that the government shall not transgress those rights which represent their retained sovereignty. But this great principle presents only one facet of the complexities of our social order. Among the “blessings of liberty”4 and our “ * * * liberties,”5 is the right to be free from the criminal acts of others. The great documents that serve as the cornerstones for our liberties are unduly limited if they are read as relating only to governmental action and not to individual conduct. The retained rights of each of us, and the value of their protection from governmental intrusion, are of little worth if they can be seized without due process of law by another individual who then unduly is shielded from responsibility by unnecessarily honoring his individual rights.

Courts must examine the issues presented to them in the context of the needs of all the citizens whom they serve. As Chief Justice Blume once said, referring to a claimed right: “ * * * It is not he alone whom we must consider. We must consider society as well. * * * ” State v. Riggle, 76 Wyo. 63, 66, 300 P.2d 567, 568 (1956), on petition for rehearing. The people of this land suffer more from crime than they ever have before and more than the citizens of any other country of the world. They have an urgent need to be free from the impact of crime in their lives. The wisdom of any judicial decision which has the effect of inhibiting the efforts of those charged with the enforcement of law on behalf of all of us must be questioned. We need to examine critically the recent history of our courts during which the individual sovereignty (the retained rights) has been emphasized, and we need to ask whether we are not moving perilously closer to the point at which the rights of all of us, which we hold so dear, are sacrificed in the interest of the protection of each of us. The preservation of our rights to life, liberty, property and the pursuit of happiness from the individual assaults of others is a fundamental function of government, and that government which fails to afford an adequate measure of protection for its citizens from the criminal acts of others well may have forfeited its right to continue to govern.6

It is this need for balancing the interests of the individual and the interests of all, including that individual, that the majority opinion fails to recognize and therefore ignores. It is not a question of “him” and “them”; it is not a question of the individual’s rights as opposed to the rights of others; it is a question of “me” and “us”; it is a question of the retained rights of the individual as opposed to his other rights which he shares with all. Speaking to the court imposed sanction of the exclusionary rule, Chief Justice Weintraub of New Jersey spelled it out in this way:

“ * * * We should be mindful that while the judge-made sanction supports the right of the individual to be free from wrongful invasion by the State, it *1265tends to deny him protection from grievous invasion by the criminal. For unless we can assume that offenders set free by suppression of patent proof of their guilt will not resume a criminal course, we must recognize that the pain of the sanction of suppression will be felt, not by some abstraction called the ‘police’ or ‘society,’ but by tomorrow’s victims, by the innocent who more likely than not will be the poor, the most exposed and the least protected among us. Nor can we fail to note that while the sanction supports the high value inherent in freedom from unwarranted search, yet in another aspect it works against public morality because the suppression of the truth must tend to breed contempt for the long arm of the law. Such are the stakes, and it is in their light that the unreasonableness of a search must be measured.” State v. Davis, 50 N.J. 16, 231 A.2d 793, 796 (1967).

The statement can be read as equally applicable to the reasonableness of an arrest.

As this balancing process is applied, the rights of the individual and the rights of the community may have different weights at different stages in the exercise of the police power. The closer we approach the moment of truth found in a judicial determination of guilt which will have the force and effect of permanently depriving an individual of his life, his liberty, or his property, the more heavily the scales of justice must be weighed in favor of the individual rights. At those stages of the law enforcement process which are temporary in effect and more remote from that moment of truth, the more heavily the scales may be weighed in favor of the community interest. This is the reason for the difference between the quantum of factual information necessary to convict (beyond a reasonable doubt) and that which is necessary to constitute probable cause as the essential processes of law enforcement are applied to the resolution of apparent violations of law. An arrest such as that complained of here is remote from that moment of truth and temporary in nature. Consequently, in this instance, the conflict of opposing rights properly is resolved in that spirit found in the decision of the district court, which manifests concern for the rights of all the people.

The majority opinion fails to distinguish the information which is sufficient for probable cause from the quantum of evidence necessary to convict. This distinction is honored by recitation, but not by application. It was honored by the district court which correctly concluded that here probable cause was present in the constitutional context, and for that reason the arrest of the plaintiff by the police officers on the ground that a crime was being committed by her in their presence was justified as a matter of law. In relying upon Mulligan v. State, Wyo., 513 P.2d 180 (1973), the majority opinion perforce utilizes the reasonable doubt standard in resolving a probable cause question. Valerio v. State, Wyo., 527 P.2d 154 (1974), which distinguishes Mulligan, and limits it even in a context of proof beyond a reasonable doubt unfortunately is ignored. The following language taken from the majority opinion contains the specific manifestation of this erroneous approach:

“It would seem axiomatic that criminal probable cause is the cause which logically leads to a conclusion that the person to be arrested is the one who had committed or was engaged in the commission of the crime.”

This describes a conclusion of guilt which a police officer is not permitted to make in the performance of his role in our criminal justice system. A correct statement of the principle is that criminal probable cause is the cause which reasonably leads to a conclusion that the person to be arrested may be the one who committed or was engaged in the commission of the crime. The district judge in this case correctly made the distinction and applied it, and his judgment should be affirmed.

The majority opinion cites cases which are distinguishable for the proposition that *1266mere presence in the vicinity where a crime has been or is being committed does not constitute probable cause in the constitutional context. More persuasive are two cases from the Supreme Court of Colorado which reach a practical and realistic result. In People v. Renfrow, 172 Colo. 399, 473 P.2d 957 (1970), the court held that the discovery of stolen goods in a dwelling house by police officers legitimately on the premises furnished probable cause for the officers to arrest the occupants of the house. In Gonzales v. People, 156 Colo. 252, 398 P.2d 236 (1965), the court held that Gonzales’ presence in a room where he was watching another individual (who was the primary object of the police investigation) roll marijuana cigarettes, coupled with the knowledge of the officers that the other individual was involved in marijuana traffic, established probable cause for Gonzales’ arrest. In our neighboring state of Colorado the police officers in the introductory, illustrative, hypothetical factual situation would promptly and logically arrest all six poker players. They would escort them to police headquarters where at least four and possibly five of them would be eliminated as suspects. They would be released, but they would not be able to claim that they had been the victims of an unlawful arrest.

The Supreme Court of the United States would reach the same conclusion. In Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), police officers lawfully entered the Ker apartment based upon information giving them probable cause to arrest George Ker for possession of marijuana. The court held that probable cause for the arrest of the petitioner, Diane Ker, was not present when the officers entered the apartment to arrest her husband, but was present at the time of her arrest. The court there, said at 374 U.S. 36, 83 S.Ct. 1631,10 L.Ed.2d 740:

“ * * * Upon their entry and announcement of their identity, the officers were met not only by George Ker but also by Diane Ker, who was emerging from the kitchen. Officer Berman immediately walked to the doorway from which she emerged and, without entering, observed the brick-shaped package of marijuana in plain view. Even assuming that her presence in a small room with the contraband in a prominent position on the kitchen sink would not alone establish a reasonable ground for the officers’ belief that she was in joint possession with her husband, that fact was accompanied by the officers’ information that Ker had been using his apartment as a base of operations for his narcotics activities. Therefore, we cannot say that at the time of her arrest there were not sufficient grounds for a reasonable belief that Diane Ker, as well as her husband, was committing the offense of possession of marijuana in the presence of the officers.”

In this case Susan Rodarte was present in a pickup truck in which marijuana was discovered, and she was present with an individual known by the officers to have been charged previously with selling such substances to minors. It is not reasonable for the majority to require the officers, under those circumstances, to conclude for purposes of probable cause only that the marijuana must have been the property of Skorcz. It was equally possible and reasonably probable that Skorcz already had made a sale of this marijuana to one or more of the other occupants of the pickup truck. This court in an earlier case has accepted the concept that such substances may be jointly possessed by more than one person. Valerio v. State, supra.

As the Supreme Court of the United States has said in Brinegar v. United States, supra, at 338 U.S. 175, 69 S.Ct. 1311, 93 L.Ed. 1890:

“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof *1267is accordingly correlative to what must be proved.”

The thrust of the majority opinion is to require an officer in any situation in which an arrest is to be made to eliminate factual and practical probabilities that are present in favor of selecting only the correct (in the context of guilt) probability.

In attempting to describe probable cause practically all courts say that it means less than the evidence which would justify conviction of the crime but that it is also more than bare suspicion. E. g., Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Brinegar v. United States, supra; State v. Vaughn, 12 Ariz. App. 442, 471 P.2d 744 (1970); State v. Kasabucki, 52 N.J. 110, 244 A.2d 101 (1968); State v. Davis, supra; Powe v. State, Miss., 235 So.2d 920 (1970); Commonwealth v. Gilmore, 447 Pa. 21, 288 A.2d 757 (1972); and State v. Mannhalt, 1 Wash.App. 598, 462 P.2d 970 (1969). The trial judge in this instance recognized and correctly applied this distinction. According to Mulligan v. State, supra, there was not sufficient evidence to convict. On the other hand, the officers in this instance had more than a mere suspicion. As a concrete example, if the plaintiff had been arrested simply because she was in Skorcz’ vehicle that would have been an arrest based upon mere suspicion. The presence of the baggies of marijuana, her presence in the vehicle coupled with that, and the knowledge of Skorcz’ prior involvement in the unlawful distribution of controlled substances, is more than mere suspicion and constitutes probable cause.

The majority relies upon statements of the arresting officers that they “suspected” a violation of the law, and in effect treats those statements in their testimony as admissions that only suspicion not probable cause was present here. While the different nuances and the number of definitive descriptions manifest how difficult it is to capture concretely the concept of probable cause, the Supreme Court of California may have accomplished this as well as it is possible to do. In a leading case that court said:

“ * * * ‘Reasonable or probable cause’ means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. ‘Reasonable or probable cause’ may exist although there may be some room for doubt. * * * ” People v. Nagle, 25 Cal.2d 216, 153 P.2d 344, 347 (1944).

In Bompensiero v. Superior Court, 44 Cal.2d 178, 281 P.2d 250, 254 (1955), the following language appears:

“Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain' a strong suspicion of the guilt of the accused. People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344. An indictment will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. Lorenson v. Superior Court, 35 Cal.2d 49, 56, 59, 216 P.2d 859; cf. Greenberg v. Superior Court, 19 Cal.2d 319, 322, 121 P.2d 713.”"

Other courts encompass the word “suspicion” in their definitions of probable cause, and it is unnecessarily strict to charge these police officers with confessing the absence of probable cause simply because they used the same word that is used by the courts to describe the grounds for their arrest of the plaintiff. E.g., State v. Vaughn, supra; Russell v. State, Fla.App., 266 So.2d 92 (1972); Peterson v. State, 250 Ind. 269, 234 N.E.2d 488 (1968); State v. Harris, 265 Minn. 260, 121 N.W.2d 327 (1963), cert. den. 375 U.S. 867, 84 S.Ct. 141, 11 L.Ed.2d 94 (1963); State v. Kasabucki, supra; Barfield v. Marron, 222 La. 210, 62 So.2d 276 (1952); Henning v. Miller, 44 Wyo. 114, 8 P.2d 825 (1932), reh. den., 44 Wyo. 141, 14 P.2d 437 (1932). In State v. Davis, supra, the point is made in footnote 3 at 231 A.2d 797 that the word “suspi*1268cion” is equivalent to “belief” in the probable cause standard and that in effect the words are used interchangeably.7 Considering this style of definition of probable cause and the Colorado cases of Gonzales v. People, supra, and People v. Renfrow supra, and the United States Supreme Court opinion in Ker v. California, supra, any conscientious magistrate would have issued a warrant for the plaintiff’s arrest based upon the information that she was present in the pickup truck owned by a person previously charged with the sale of marijuana to minors, who also was present, and marijuana was discovered in the pickup truck. While police officers may, as the majority recites, relying upon Lofton v. State, Wyo., 489 P.2d 1169 (1971), be held to the same standard as a magistrate, the other language in, and the entire tenor of, the majority opinion and its reliance upon Mulligan v. State, supra, demonstrate that in this instance the officers are held to a higher standard than that of a magistrate. In effect they have been instructed that to justify an arrest they must reach a correct conclusion as to the identity of the guilty party based upon facts which implicate several persons but do not point unerringly to any person. The correct rule is that an arrest is justified by any reasonable possibility which may be inferred from facts known to the officers; they then have probable cause to arrest, and should not be required to defend a civil action for damages based upon a claim of unlawful arrest.

Since, as I view this case, probable cause was present in the constitutional context, I would not reach the distinction between probable cause in a constitutional context in a criminal case and the different and less stringent standard which a police officer as a defendant may assert in defense of a charge of wrongful arrest in a civil case. I recognize that the authorities do make such a distinction. My objection to the majority opinion’s treatment of this proposition, however, is that it seems to inject a notion of negligence into an area of the law in which negligence is not an appropriate criteria. I am unable to understand exactly what is intended by the language of the majority opinion:

“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.”

If it really means what it says, it is erroneous. This language requires the submission to a jury of the question of the reasonableness of the officers’ belief that probable cause was present simply because in an ordinary negligence case the usual *1269standard compares the conduct of the defendant to that of a reasonable man. The probable cause issue is vastly different, however. The resolution of an instance such as this depends upon the reasonableness only of inferences which may be drawn from the independent and uncontrolled conduct of others. Whether probable cause is or is not present is entirely unrelated to the conduct of the police officer. It may be present however he conducts himself, or conversely, it may be absent even though the conduct of the officer is most circumspect. It is an objective standard which requires an even-handed application. Klingler v. United States, 409 F.2d 299, 304 (8th Cir. 1969), cert. den. 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969); and State v. Vaughn, supra. It is perhaps because of this attribute of the standard of probable cause more than for any other reason that the question is best resolved, even under the less stringent standard presented in a civil tort case, by a court, which uniformly handles the question in the constitutional criminal context.

The general rule where the facts, as in this case, are undisputed is that the question of probable cause is one of law for the court. Banish v. Locks, 414 F.2d 638 (7th Cir. 1969); J. S. Dillon & Sons Stores Company v. Carrington, 169 Colo. 242, 455 P.2d 201 (1969); Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 261 A.2d 731 (1970); Stienbaugh v. Payless Drug Store, Inc., 75 N.M. 118, 401 P.2d 104 (1965); see generally, 35 C.J.S. False Imprisonment § 59, p. 761 (1960). Cf., Annot., 87 A.L.R.2d 183, 188 (1963). This is the rule espoused by this Court in actions for malicious prosecution which are closely analogous for purposes of resolving this issue. Huber v. Thomas, 45 Wyo. 440, 19 P.2d 1042 (1933); and Henning v. Miller, supra. The district court’s action in granting summary judgment was consistent with this general rule and with the application of Rule 56, W.R.C.P., to cases in which there is no dispute as to the facts. Guggenmos v. Tom Searl-Frank McCue, Inc., Wyo., 481 P.2d 48 (1971); Bon v. Lemp, Wyo., 444 P.2d 333 (1968); Fugate v. Mayor and City Council of Town of Buffalo, Wyo., 348 P.2d 76 (1959). Even in cases not involving a motion for summary judgment the general disposition of the courts is to treat this question as one of law. E. g., Cambist Films, Inc. v. Duggan, 475 F.2d 887 (3rd Cir. 1973); Salvati v. Dale, 364 F.Supp. 691 (W.D.Pa.1973); Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876 (1952), cert. den. 344 U.S. 840, 73 S.Ct. 50, 97 L.Ed. 653 (1952); Beyer v. Young, 32 Colo.App. 273, 513 P.2d 1086 (1973); Lundeen v. Renteria, Minn., 224 N.W.2d 132 (1974). It is only in this way that the courts meet their responsibility of balancing individual rights and the rights of everyone in the context of probable cause. To delegate this sensitive task to our juries, able as they are, represents an evasion of the responsibility of the courts.

I cannot help but read into the opinion of the majority overtones to the effect that the determination of the existence of probable cause may be premised upon the jury’s attitude as to the negligence or nonnegli-gence of the officer in conducting his investigation. If that is what is intended, it is not correct because of the fact that probable cause is present or is not present entirely independent of any conduct of the police officer. I must protest the suggestion that the negligence of the officers in this case may result in a jury determination that there is no probable cause to arrest. This is a marked deviation from the usual standard.

Also in this context it is illogical to rely upon any failure of the arresting officers to make inquiry of Susan Rodarte or the others in the pickup in reaching the conclusion that there is some aspect of negligence in the officers’ conduct which would justify a jury in concluding that the arrest was made without probable cause. By relying upon any failure to interrogate the persons arrested the majority opinion has *1270structured for police officers in Wyoming a classic example of Hobson’s Choice.8 The officers would be subject to criticism, and under other decisions of this court would make unavailable for use in any criminal trial incriminating admissions made by an individual contacted under such circumstances, if they undertook to make any meaningful inquiry without advising the persons questioned of their rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1968). While I do not agree with the recent decision of this court in Jerskey v. State, Wyo., 546 P.2d 173 (1976), certainly that decision would demand that the officers furnish the warnings required by Miranda v. Arizona, supra. The Supreme Court of the United States, however, in the opinion in Miranda v. Arizona, supra, assumes that these warnings need be given only in connection with a custodial interrogation. By giving the warnings required by Miranda v. Arizona, in order to pursue any meaningful interrogation, the officer would be charged with having effected the arrest which the majority says he cannot make without the interrogation. I know of no way that the officer can comply with that requirement.

Arrest is not an issue in this case. For purposes of the motion for summary judgment and this hearing, the appellants freely admit that Susan Rodarte in fact was arrested. Under these circumstances the dicussion in the majority opinion about what constitutes an arrest is dictum, and most dangerous and completely inapplicable dictum having no place whatsoever in this case. This case presents one example of an arrest, but beyond that the broad examples suggested by the majority opinion encounter the hazard which always is associated with an advisory opinion. Essentially that hazard is that it is not possible to anticipate all of the multitude of factual situations which may present themselves. It is inadvisable to attempt to define standards applicable to all situations such as the majority attempts to do here. The ad hoc approach which must be applied to issues such as this leaves a feeling of dissatisfaction, but that approach is necessary. Every case must be decided upon its own facts and circumstances.

Finally, I must object to the chilling effect that this decision must have upon those activities of law enforcement officers which, by virtue of our delegation of sovereignty, they exercise in our behalf. The majority opinion does recognize the impropriety of an injunction broadly directed at law enforcement officers with respect to the performance of their assigned functions. The effect of a decision must, however, be consistent with the language that is used and that consistency is not present here because this opinion structures a psychological injunction directed at police officers which they cannot ignore. Our law enforcement officers in this state have been told that given the fact of a crime' being committed in their presence, but also given several equally logical suspects, they cannot arrest anyone but the guilty party. They must leave the corpse on the floor and the six poker players in the room. The penalty for any more effective approach is clear. Their assets and savings, and their future livelihood, with which they seek to benefit their families, will be subject to appropriation by the person who claims to have been wronged. In light of this case the natural reluctance they must feel to effect arrests is as debilitating to the proper performance of their functions as any direct injunction could be. Courts in other contexts have clearly recognized the chilling effect of the potential of not only damages, but of litigation and its associated expense, on the way we perform whatever role we may pursue in this society. See e.g., Time, Inc. v. Hill, 385 U.S. 374, 389, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); *1271New York Times Co. v. Sullivan, 376 U.S. 254, 278-279, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Washington Post Company v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965, 968 (1966), cert. den. 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967).

Under these circumstances our police officers must be reluctant to effect arrests (Coverstone v. Davies, supra), and that reluctance means that the lives, liberty and property of all of us are less safe than before.9 We must not succumb to any suggestion that the majority result is substantially innocuous because all that it really does is to return the case to the district court to be tried to a jury so that the jury may determine whether there was probable cause for Susan Rodarte to be arrested or, perhaps drawing the issue more finely, whether it was reasonable for the police officers to believe that there was probable cause. The Court has gone one step further in the process of sacrificing those rights which we claim for all in favor of a right claimed by one. Yet, at this time in the history of our country, the demand is clear that some greater priority must be given to the rights of all of us.

For the foregoing reasons I would hold that the summary judgment granted by the district court should be affirmed in all respects.

RAPER, Justice

(dissenting).

I wholeheartedly join with Justice Thomas in his keenly perceptive dissent. Under the glare of the majority opinion, I feel sorry for the law enforcement officer in Wyoming and the public as well though the majority decision will probably be to the delight of the litigious, those traveling on the fringe of lawlessness, and the criminal. A step backward has been taken. I have the greatest of respect for the views of my Brothers on the majority though I thoroughly disagree with them here.

The majority in their citation of Pierson v. Ray, 1967, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288, overlook the real underlying philosophy of and stated in that case:

“The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is rather that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. Restatement, Second, Torts § 121 (1965); 1 Harper & James, The Law of Torts § 3.18, at 277-278 (1956); Ward v. Fidelity & Deposit Co. of Maryland, 179 F.2d 327 (CA8th Cir.1950). A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. * * * ” (Emphasis added.)

The true concept of the defense of good faith and probable cause is captured in the concurring opinion of Judge Lumbard in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 2 Cir. 1972, 456 F.2d 1339:

“Ordinarily when a suit of this type is brought a court will already have determined that there was no probable cause for the arrest and search complained of. Nevertheless the agent has a complete defense if he can convince the trier of *1272the fact that he acted in good faith and that it was reasonable for him to have believed that the arrest and search were lawful. Thus there are two standards to be considered. The first is what constitutes reasonableness for purposes of defining probable cause under the fourth amendment for the protection of citizens against governmental overreaching. The other standard is the less stringent reasonable man standard of the tort action against government agents. This second and lesser standard is appropriate because, in many cases, federal officers cannot be expected to predict what federal judges frequently have considerable difficulty in deciding and about which they frequently differ among themselves. It would be contrary to the public interest if federal officers were held to a probable cause standard as in many cases they would fail to act for fear of guessing wrong. Consequently the law ought to, and does, protect government agents if they act in good faith and with a reasonable belief in the validity of the arrest and search.” (Emphasis added.)

In Hill v. Rowland, 4 Cir. 1973, 474 F.2d 1374, the plaintiff in a civil action sought damages against police officers of the City of Charlotte, North Carolina, for a war-rantless arrest. The court considered the problem and quoted at length, with approval, from Richardson v. Snow, D.Md.1972, 340 F.Supp. 1261, as follows:

“ ‘ * * * As stated in Whirl v. Kern, 407 F.2d 781 at 790 (5 Cir. 1969), “An arrest is often a stressful and unstable situation calling for discretion, speed, and on-the-spot evaluation.” To require the police officer, under penalty of personal liability for damages if he is in error, to make on-the-spot complex and intricate legal determinations of the existence or absence of probable cause under the Fourth and Fourteenth Amendments when the courts, acting in a more leisurely and relaxed atmosphere, have difficulty in making these decisions is to place the policeman in just such a position of acting at his peril as was declared to be intolerable in Pierson v. Ray, supra, 386 U.S. at 555, 87 S.Ct. at 1218. It is no answer to this intolerable burden to cite cases such as Beck v. Ohio, 379 U.S. 89, at 97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), where a subjective good-faith test for actions of the policemen in an arrest was rejected since those cases deal with constitutional standards applicable to the admission of evidence in the trial of a criminal case rather than to the question of civil liability of a policeman who, in good faith and with a reasonable belief in the legality of his acts, has attempted to perform his duty to protect society. Such a distinction in this court’s view is entirely compatible with the balancing of the interest of society in attempting to protect itself from the effects of criminal behavior and of the interests of the individual in the enjoyment of his constitutional rights.’ 340 F.Supp. at'1266.” (Emphasis added.)

I am convinced that as a matter of law, as the trial judge ruled, the officers here acted in complete good faith — there is no showing whatsoever, of bad faith — with a reasonable belief in the validity of the arrest. When the officers went to Skorcz’s pickup they were approaching the vehicle lawfully to arrest a person for whom a warrant was outstanding for a narcotics violation. In arresting that individual, they found three other persons, with the plaintiff seated next to Skorcz and under her feet, a large bag of marijuana. Another bag of marijuana was in plain sight between Skorcz, who was sitting next to plaintiff, and the right-hand door. It was reasonable to believe that since Skorcz was being arrested for delivery of marijuana to two young juveniles at the junior college and a narcotics violation warrant from Jackson was outstanding, a similar transaction had taken place between Skorcz and the 18-year old plaintiff. It was reasonable that no body-search of plaintiff be made at the time in the absence of a po*1273licewoman, and that the parking lot of Taco John’s late at night was no place to interview the occupants of that vehicle. It was likewise reasonable to handcuff three persons surrounded by marijuana, with unknown propensities and in the interest of protecting all concerned to take that action while removing the suspects to the city police station. It would he further most reasonable because the officer driving the police car had had a previous experience with plaintiff’s female friend, another occupant of the pickup, “fighting, kicking, trying to escape.” The plaintiff was held only 15 or 20 minutes; she was not abused in any fashion. An off-duty policewoman was brought in specially to conduct the search of plaintiff’s person. It was the duty of those officers to take the sensible and reasonable measures they did. To not do as they did would have been a dereliction of duty. Those circumstances with which they were confronted had all the anatomy of a first-class controlled substances violation.

Even the stricter rule applied in a criminal case recognizes that in dealing with probable cause, as the very term implies, we deal only with probabilities. They are not technical but practical considerations of everyday life on which reasonable men, not legal technicians act. This is the way successful prosecutions are made. To have passed up such an opportunity would be like walking past a lost hundred dollar bill and not picking it up because it might be counterfeit. Law enforcement officials must not be shackled by the fear that they will be sued and forced to an expensive jury trial for every move they make in enforcing the law. The citizen is adequately protected by the test of reasonableness, which a judge was and is qualified to rule on under these undisputed circumstances.

I would have affirmed in every respect.1

. The majority opinion at footnotes 3 and 4 outlines the general arrest authority set forth in § 7-12.3, W.S. and § 18-6 of the Riverton Municipal Code. In addition, § 35-347.45, W.S., which provides that all law enforcement officers in this state shall have responsibility for enforcement of the Wyoming Controlled Substances Act of 1971, specifically provides in Subsection (b) (iii) that any law enforcement officer engaged in the enforcement of the Act may:

“Make arrests without warrant for any offense under this act committed in his presence, or if he has probable cause to believe that the person to be arrested has committed, or is committing a violation * * * *y

. In State v. Davis, supra, at p. 796, Chief Justice Weintraub, speaking for a unanimous court said:

“Since the Fourth Amendment speaks, not in terms that are absolute, but rather of unreasonableness, it necessarily calls for a continuing reconciliation of competing values. Pre-eminent in the galaxy of values is the right of the individual to live free from criminal attack in his home, his work, and the streets. Government is established to that end, as the preamble to the Constitution of the United States reveals and our State Constitution, Art. I, ¶ 2, expressly says. We want the citizen to fore-go arms on the strength of that assurance. If the Fourth Amendment is read to frustrate effective law enforcement, government will fail in its primary mission, its promise that the individual shall be secure from attack upon his person and his things.”

. The rights thus claimed to be secured are described in the preceding sentence of the Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. * * * ”

. Preamble to the Constitution of the United States of America.

. Preamble to the Constitution of the State of Wyoming.

.State v. Davis, 50 N.J. 16, 231 A.2d 793 (1967).

. Restatement (Second) of Torts, § 121(b), p. 204 (1965), in discussing those situations in which a peace officer is privileged to arrest another without a warrant, says:

“if, although no act or omission constituting a felony has been committed, the officer reasonably suspects that such an act or omission has been committed and that the other has committed it, * * * .”

The term “reasonably suspects” in the context of the Restatement (Second) of Torts has the following meaning:

“ * * * In order that the actor may ‘reasonably suspect’ the other of having committed acts which constitute a felony which has in fact been committed, it is not necessary that the actor shall believe that the other is guilty of the felony. It is enough that the circumstances which the actor knows or reasonably believes to exist are such as to create a reasonable belief that there is a likelihood that the other has committed the felony. In such case, the public interest in the punishment of a felon requires the other’s arrest for the purpose of securing his custody pending investigation.” Restatement (Second) of Torts, § 119, Comment, (j), at p. 197 (1965).

. “Where to elect there is but one, ‘Tis Hobson’s Choice — take that or none.” Thomas Ward, England’s Reformation [1630] Chapter IV.

. “These clauses state the privilege of a peace officer in making an arrest which is additional to that of a private person. The additional privilege is given because the peace officer has a duty to the public to prevent crime and arrest criminals; the performance of these duties would be seriously impaired unless peace officers were given considerable discretion in their performance and protected from liability for the consequences of honest and reasonable mistakes.” Restatement (Second) of Torts, § 121, Comment g., entitled Comment on Clauses (b) and (c), at p. 206 (1965).

. 1 concur in those parts of the majority opinion relating to the “Riverton Police Reserves,” affirming the trial court.