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10/28/94 MONA LOU UPSHAW v. TIMOTHY GLENN MCARDLE

October 28, 1994

MONA LOU UPSHAW
v.
TIMOTHY GLENN MCARDLE, ET AL.



Appeal from Jefferson Circuit Court. (CV-90-9826). William A. Jackson, TRIAL JUDGE.

Released for Publication February 26, 1995.

Steagall, Maddox, Shores, Houston, and Ingram, JJ., concur.

The opinion of the court was delivered by: Steagall

STEAGALL, JUSTICE.

Mona Upshaw, the plaintiff in this action alleging false arrest and false imprisonment, appeals from a summary judgment entered in favor of the defendants Timothy Glenn McArdle, Edward Neil Byrd, and Brooks Burdette, all police officers with the City of Hoover.

"In reviewing the Disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala. 1988); Rule 56(c), Ala.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala. 1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). However, our review is subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala. 1990).

Viewed in such a manner, the record reveals the following facts. On the evening of January 29, 1990, Mona Upshaw and a companion, Mona Letson, went shopping at the Galleria mall in Hoover. After visiting another store, they entered the Parisian department store and made their way to the junior's department, where they wanted to look at bathing suits. No salespeople were nearby, so each woman selected several bathing suits from a display and took them into the dressing room in order to try them on. The dressing room had three separate private stalls. Eventually, the women decided that they did not wish to purchase any of the suits, so they returned them to the display racks.

Upon exiting the dressing room, Upshaw and Letson noticed that a man and woman were watching them. The man and woman followed them as they went to the children's department and then to the dress department. Letson found a dress that she wanted to try on, and she took it to the dressing room in that department. Upshaw accompanied her into the dressing room, but did not enter Letson's private stall. Letson decided not to purchase the dress and returned it to its display rack.

While still in the dress department, Upshaw and Letson were approached by the man and woman who they had noticed were watching them. The man and woman informed Upshaw and Letson that they were security personnel for Parisian and that they needed to speak to them, and then they escorted the two women to an office in the rear of the store. Once inside the office, the male security guard pulled a bathing suit out of a shopping bag he was carrying and accused Upshaw and Letson of attempting to steal it. In response, Upshaw and Letson denied the accusation. However, the security guard telephoned the Hoover Police Department and requested that an officer be sent to the store.

Shortly thereafter, Officers Byrd and Burdette arrived at the store's office. Officer Byrd stepped outside the office and spoke with the security guards, while Officer Burdette remained with Upshaw and Letson. The security guards informed Byrd that Upshaw and Letson had been observed concealing several bathing suits on their persons while in a dressing room and then keeping the suits concealed as they moved through the store. They informed Byrd that after Upshaw and Letson left the dress department dressing room, the female security guard entered the dressing room area and found one of the bathing suits. When Byrd and the security personnel returned to the office, Upshaw and Letson's jackets and purses were searched. However, nothing incriminating was found. Upshaw and Letson were read their Miranda rights and were transported to the Hoover city jail.

Following the arrest, Byrd prepared an Alabama Uniform Incident/Offense Report. That document contained a concise statement of facts regarding the incident; Byrd and the female security guard signed that statement. It read:

"#8 [the female security guard] stated that she observed suspects conceal a total of 8 swimsuits on their persons and walk around the store. #8 followed them throughout the store. She checked the dressing rooms just prior to suspects entering [and] after they left dressing rooms, #8 searched them and found one bathing suit (listed in #60 & #61) in the room. Suspects were detained by security. Police arrived on the scene, mirandized [sic] the suspects, arrested them, and transported them to Hoover City Jail."

Upshaw and Letson were held overnight in the jail and, the next morning, each met separately with McArdle, an officer in the police department's business services unit who had been assigned to investigate the alleged theft. McArdle informed Upshaw of her Miranda rights, but she declined to see an attorney. McArdle questioned Upshaw about the alleged theft, but she continued to deny any involvement and was returned to her cell. McArdle then questioned Letson and after questioning she also was returned to her cell. Thereafter, McArdle telephoned the Parisian store and spoke to a representative about the arrest, which McArdle had become uncomfortable with. However, the telephone conversation did not abate McArdle's concerns; he decided that at that time he did not have enough evidence to obtain an arrest warrant for either Upshaw or Letson.

McArdle had Upshaw brought out from her cell and asked her to sign a document releasing Parisian, the Parisian security personnel, the Hoover Police Department, and Officers Byrd and Burdette from any liability arising out of the arrest. McArdle informed her that she did not have to sign it, but could do so if she wanted to. Upshaw read the release and told McArdle that she wished to make a telephone call to her father and to discuss it with him before she signed it. Upshaw was returned to her cell. Only after Letson was taken from her cell to speak with McArdle and signed the same type of document that had been offered to Upshaw was Upshaw removed from her cell and allowed to telephone her father. Upshaw did not sign the release; however, both ...


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