Opinion
Aug. 20, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Heinz D. Kroeger, Boulder, for plaintiff-appellant.
J. Donovan Stapp, Denver, Bradley, Campbell & Carney, Daniel T. Moyle, Jr., Golden, for defendants-appellees.
COYTE, Judge.
Plaintiff sued defendants, police officers of the City of Golden for false arrest. Defendants answered alleging that they were acting within the scope of their authority and had probable cause to make the arrest. They then filed a motion for summary judgment supported by an affidavit which the court granted on the basis that defendants had probable cause for the arrest of plaintiff. Plaintiff then filed a motion to vacate the order for summary judgment and moved to file additional counter-affidavits alleging newly discovered evidence. On request, the court reconsidered the motion for summary judgment with the additional counter-affidavits. Again it found that there was no genuine issue of material fact to be decided and that the police officers had probable cause for the arrest of plaintiff, and again entered summary judgment for defendants. Plaintiff appeals, contending that there are factual issues to be resolved. We agree and reverse.
The sole question presented to us for review is whether there is a factual issue as to whether the officers had probable cause to arrest plaintiff. Plaintiff had left his car at a service station for repairs. The station operator noted that there were a number of tablets in various containers in the car and called the police. When they arrived, the station operator gave them some of the tablets which were taken to the office laboratory of the Jefferson County sheriff for testing. The technician then advised that the color results of the test indicated that one of the tablets contained LSD. Officer Gregory then had Officer Foulke keep plaintiff's auto under surveillance while he went to get a search warrant. Before the warrant was obtained, plaintiff returned for his car. Gregory then instructed Foulke that he, Foulke, had probable cause and to arrest plaintiff. Plaintiff explained to Foulke that the tablets were prescribed by his doctor and gave Foulke the name and address of the doctor, but plaintiff, nevertheless, was arrested and taken to the city jail where he was incarcerated.
Plaintiff alleged in his motion that the inaccuracy of the screening test was known or should have been known by defendants. The affidavits filed in support of the motion set forth that a positive color change for an LSD field test does not in any way positively establish or prove the presence of LSD, but is only a cause for submitting the substance for further tests by a qualified laboratory, and that the limitations of the field test are commonly known to members of the enforcement agencies employing such tests.
In Gonzalez v. People, 156 Colo. 252, 398 P.2d 236, the term 'probable cause' was given the following interpretation:
'The terms 'probable cause' and 'reasonable grounds' are substantially equivalent in meaning. (citing case) Probable cause exists where the facts and circumstances within 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 cases) In dealing with probable cause, one deals 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.' (citing cases).'
The affidavits filed in support of the motion for summary judgment when opposed by the counter-affidavits raise an issue of fact as to whether the officers had 'probable cause' to believe that an offense had been committed. As a preliminary to finding such probable cause, whether the officers had reasonable grounds to rely on the field test made for LSD and to totally ignore plaintiff's claim that the tablets had been prescribed by his doctor are factual issues that must be determined on trial. It was, therefore, error for the court to grant summary judgment. McKinley Construction Co. v. Dozier, 175 Colo. 397, 487 P.2d 1335.
Judgment reversed.
SMITH and VAN CISE, JJ., concur.