IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO AURELIO TORREZ, a single man, Plaintiff/Appellant,

v. Deputy J. KNOWLTON, a single man, and CLARENCE DUPNIK, Sheriff of Pima County, Arizona, Defendants/Appellees

. ) ) ) ) ) ) ) ) ) ) ) ) 2 CA-CV 2002-0087

DEPARTMENT B O P I N I O N

APPEAL FROM THE SUPER IOR COURT OF PIMA C OUNTY Cause No. C 20005854 Honorable Christopher C. Browning, Judge

AFFIRMED Monroe & Associates, P.C. By Karl MacOmber Barbara LaWall, Pima County Attorney By David L. Berkman Tucson Attorneys for Plaintiff/

Appellant

Tucson Attorneys for Defendants/Appellees D R U K E, Judge (Retired).2

¶ 1 A Pima County deputy sherif f arrested Aurelio Torre

z on a warrant that the issuing court had quashed some seven months before the arre

st. Torrez sued the sherif f and the deputy, claimingfalsearrest and a civil rights violation under 42 U.S.C. § 1983. After the parties filed cross-motions for

summary judgment, the

trial court granted summa ry judgment

in favor of the sheriff and the deputy

on both claims, ruling that “legal justification exist ed, as a matter of law,” to arrest Torrez and that his federal civil rights had not been violat ed. We affirm. Standard of Review ¶ 2 We review de novo a trial cour t’s granting of

summary judgment. Pleak v. Entrada Prop. Owners’ Ass’n , No. 2 CA-CV 2001-0100, 2003 WL 21731293 (Ariz. Ct. A pp. July 25, 2003). Under our rules of civil procedure, a trial court properly grants summary judgment when “thereis no genuine issue as to any mat erial fact and . . . the moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c)(1), 16 A.R.S., Pt. 2. Accordingly, a trial court may grant summary

judgment if, based on the undisputed, material facts, rea sonable people could not agree with a party’s c laim or defense. Orme Sch. v. Reeves , 166 Ariz. 301, 802 P.2d 1000 (1990). Because

the parties in this case do not d ispute the following materia l facts, we limit

ourreview to the trial court’s a pplication of

the law to these facts in de ciding whether the court properly granted summary judgment. See Pleak

. Facts ¶ 3 In

October 1999, the superior court issued an arrest war rant for Torrez after, through no fault of his own, he fail ed to appear for a hear

ing in a paternity case. C onsistent with standard procedure, the clerk o

f the court sent a duplicate copy of the warrant to the sheriff’s office. The following month, the co urt quashed the warrant, ba

sed on the parties’ stipulation, but1 Because Torrez does not argue on appeal thatthe trial court improperly g ranted summary judgment on the civil rights claim, we consider the issue abandon ed. See Ariz. R. Civ. App. P. 13(a)(6) , 17B A.R. S.; see also DeElena v. S. Pac. Co. , 121 Ariz. 563, 592 P.2d 759 (1979) (issues not argued on appeal deemed abandoned). 3 the clerk neglected to follow standa rd procedure

and notify the sheriff’s office that the warrant had been quashed. Had the clerk

done so, a sheriff’s of

fice employee would ha

ve stamped the word “quashed” on the duplicate copy and sent it back to the court. But, because the clerk failed to follow standard proce dure, the duplicate remained in the sheriff’s file, and the warrant stayed activein the computer database , until the deput y st opped Torrez for a traf fic violation in June 2000. During the stop, the deputy called the sheriff’s office; when the computer database showed

an active warrant for Torre z, the dupli cate was m

anually located to confirm the warrant. The deputy then arrested Torrez on th e warrant and took him to jail. Torrez later filed claims of fa

lse arrest and a civil rights violation aga inst the sheriff and the dep uty. He appe als from the tr ial court’s granting of summary judgment in their favor on the false arrest claim. 1 Discussion ¶ 4 As he did below in opposing summary judgment, Torrez correctly asserts that the tort of false arrest occurs

when a person is unlawfully d etained without

consent. See Slade v. City of Phoenix, 112 Ariz. 298, 541 P.2d 550 (1975) (unlawful detent ion essential element of f alse arrest and false imprisonment); see also Cullison v. City of P eoria , 120 Ariz. 165, 584 P.2d 1156 (1978) (false imprisonment de fined as detention of pers on without consent and without la wful authority); Reams v. City of Tucson, 145 Ariz. 340, 701 P.2d 598 (App. 1985)(p erson falsely arrested when detained without conse nt and without

lawful authority); 1 Dan B. Dobbs, The Law of Torts § 36, at 67 (2001)

(officer commits fa

lse arrest by intentionally detaining per son against4

person’s will); W. Page

Keeton et al., Prosser and Keeton on The Law of Torts§ 11, at 50 (5th ed. 1984) (person’s submission to arrest effected without legal authority con stitutes false arrest). Torrez thus argues that the tort of f alse arrest occurred he

re because his arrest wa

s based on a quashed warrant and, therefor e, was illegal. In support of his position, To rrez reli es primarily

on a criminal case decid

ed by our supreme court, State v. Eva ns , 177 Ariz. 201, 866 P.2d 869 (1994). ¶ 5 Evans, like Torrez, was stopped f or a traffic violation and arrested based on a computerized records

check that showed he had an outstanding

warrant. A police officer found

abag of marijuana in Evans’s c ar after the arrest, a

nd he was charged with unla wful possession of marijuana. Evans move d to suppress the evidence, arguing that his arrest was ille gal because the justice of the peace who had issued the warrant had quashed it several weeks before

the arrest. Although the trial cour

t could not

determine whether justic e court staff or law enf orcement employees had failed to remove the warrant from the comp

uter database, the cour

t app arently concluded it did not matter, applied the exclusionary r ule, and granted the moti on. ¶ 6 A divided court of appeals re versed the ruling in State v. Evans (Evans I) , 1 72 Ariz. 314, 836 P.2d 1024 (App. 1992). The court found that, because the evidence i ndicated court staff had failed to inform law enforcement personne l that the warrant

had been quashed, the trial court had misapplied the exclusionary rule. That rule, said the court, “is intended to deter police misc onduct and not to punish errors of judges a nd magistrates.” Id. at 317, 836 P.2d at 1027. ¶ 7 On

review, our supreme c ourt a ffirmed the trial court’ s application of the exclusionary

rule. The supreme court determined that“no warrant” existed at the time Evans was5

arreste d and, thus, his “warrantless arrest” was “plainly illegal” b ecause it had been “base d entirely. . . on an erroneous com puter entry.” Evans (Evans II) , 177 Ariz. at 203, 866 P.2d at 871. The court also declined to apply the good-faith exception to the exclusionary rule enunciated i n United States v. Leon , 468 U.S. 897, 104 S. Ct. 3430, 82 L. Ed. 2d 677 (1984). T he cour t stated that, “even assuming . . . that responsibility for the e rror rested wit

h the justice court,” Evans II , 177 Ariz. at 203, 866 P. 2d at 871, application of the exclusionary rule would “ser ve to improve the efficiency of those

who keep records in our cr iminal justice system.” Id. at 204, 866 P.2d at 872. ¶ 8 Despitethe factual similarities of Evans II and this case, we find Torrez’s reliance

on Evans II misplaced. First, as already noted, Evans II is a criminal case and dealt only with the application of the excl usionary rule. More impo rtantly, the United States Supreme Court disagreed with our

supreme court’s application of the exclusio nary rule in Evans II and reversed its decision in Arizona v. Evans, 51 4 U.S. 1, 115 S . Ct. 1185, 131 L. Ed. 2d 34 ( 1995). The Suprem e C ourt observed that, although the exclusionary rule gene rally deters future Fourth Amendment

violations, the Court’s prior decisions in Illinois v. Krull , 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); Massachusetts v. Sheppard, 468 U.S. 981, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984); and Leon established a good-faith e xception to the rule and limit ed its application

“to those instances where it s re medial objectives are th ought most efficaciously served.” Arizona v. Evans , 514 U.S. at 11, 115 S. Ct. at 1191, 1 31 L. Ed. 2d at 44. Those instances, said the Court, do not include warrants issued as a result of judicial errors or mist akes because the rule’s application under those circumstances wou ld not have “a significant de terrent effect on the issuing judge or mag istrate.” Id. The Court thus held that, “[i]f court employees6

wereresponsible for t

he erro neous computer record, ” as our supreme court had assumed, “the exclusion of evidence at trial would not sufficiently deter futu re errors [by cou

rt employee s] so as to warrant such a seve re sanction.” Id. at 14, 115 S. Ct. at 1193, 131 L. Ed. 2d at 46. The Court concluded that Leon

and its progeny established a categorical, good-fa

ith exception to the exclusionary

rule “for clerical error

s of court employees.” Id. at 16, 115 S. Ct. at 1194, 131 L. Ed. 2d at 47. ¶ 9 Torrez nonetheless argues that a n officer’s good-faith

belief in the propriety

of an arrest is no defense to the tort of false ar rest or false imprisonment, citing our supreme court’s early decision of Adair

v. Williams, 24 Ariz. 422, 210 P. 853 (1922). There, police officers had entered the Adairs’ home without a wa rrant and then arrested th em for allegedly

committing the misdemeanor

offense of

unlawful cohabitation in the officers’ presence . The Adairs filed a claim forfalse imprisonment and, following a trial, appealed from an adv erse jury verdict. The supreme court reversed, based

on an erroneous jury instruc tion. ¶ 10 The court determined that the officers’ warrantles s entry into the ho me was unlawful and, therefore, that th

eir subsequent warrantle ss ar rest of the Adairs was likew ise unlawful. “[An] officer is not justifi ed either in

making [a warrantless]entry into [a house] for the me re purpose of placing himself in a position where he may observe the commission of a misdemeanor

or in thereupon making an arr est therefor.” Id. at 432, 210 P. at 856. The court thus held that the officers co uld not defend against

the false imprisonment c laim, as the trial court had instructed the jury, on the ground that the office rs had arrested the Adair s without a warrant “upon a [good-faith] beli ef in [their] guilt.” Id. at 436, 210 P. at 857.7

¶ 11 The supreme court’s holding f ollows the general rule

that, if a person commits an intentional tort, “such as trespass to land, battery, or false imprisonment, it will be no excuse . . . that[the person] was mistake n as to something

justifying his conduct.” Keeton, supra , § 17, at 111; see also1 Dobbs, supra , § 69, at 158 (mistake, as such, “is not a recogniz ed defense”). This general rule does not apply, however, when the person “is regarded as having a justifiable

reason forthe exercise of a privilege.” Keeton, supra , § 17, at 111. “Courts recognize many privileges

or justifi cations that can be invoked by a de fendant to defeat a cla

im that would otherwise be actionable.” 1 Dobbs, supra , § 68, at 155. Two Arizona cases have, for example, recogn ized a law enforcement off

icer’s privilege to arre

st a person on a valid warra nt. ¶ 12 In

the first case, Slade , a justice of the peace had issued a warrant for Slade’s a

rrest based on a

criminal com

plaint filed by the county attorney. After a city police officer arrested Slade on the warrant, the complaint was dismissed for lack of evidence. Slade then sued for fa lse arrest, false imprisonment, a nd malicious prosecution. The trial court directed a ver dict against Slade on all claims, and the supr eme court affirmed

the ruling on appeal. In affirming the directed verdicton the false arrest and f alse imprisonment claim s, the c ourt held that Slade had no t presented any evidence of unlawf ul detention to support the claim s because he had conceded the arrest had been based on “a duly issued warra nt of arrest from a lawf

ul magistrate.” Slade , 112 Ariz. at 300, 541 P.2d at 552; see a ls o Cullison (detention on valid warran t not unlawful detention). ¶ 13 In

the second case, Brendel v. County of Pima , 121 Ariz. 451, 591 P.2d 77 (App. 1979), a police officer had issued a repair order to Brendel, who was told he need not appear in court if he corrected the prob

lem and notified the cour t. Brendel did

so, but his notification was8

not reflected in

the court records. After he fa

iled to appear in court, a w arrant was issued for his arrest. Three years later, a deputy sheriff stopped Brendel for a traffic violation and then arrested him on the warrant. ¶ 14 Brendel later filed a claim for false arrest. The trial c ourt grante d summary judgment against him, and this court affirmed the judgment on appeal. We observed that, after the deputy confirmed the wa rrant had no t b een “satisfied, cancelled or voided,” he had been “oblig[at]ed to take[Brendel ] into custody.” Id . at 453, 591 P.2d at 79. In support, we relied

on comment a to §123 of

the Restatement (Se

cond) of Torts (1965). S ection 123 sets forth the requirements for a vali

d warrant, and comme

nt a states in relevant part: A warrant is valid even though the c o urt, through lack of information

or otherwise, has issued it f or the arrest of a person in fact innocent of

the offense alleged. The guilt or innocence of the accused is not a matter which conce rns the officer. It is his duty to servethe warrant and he is privilege d to do so, even though

he has reason to believe

or even knows that the person for who se arrest the warrant is issued is in fact innocent of the offense with

which he is charged. We thus affirmed summa ry judgment on Brendel’s f alse arrest claim, co

ncluding that the deputy had “acted properly under au thority of a valid warrant. ” Brendel , 121 Ariz. at 453, 591 P.2d at 79; see also 1 Dobbs, supra , § 82, at 190 (peace of ficers not liable for properly exec

uting valid warrant); Keeton, supra , § 25, at 149 (officer w ho arrests under warrant

not liable if acted duly andproperly); 1 Fowler V. Harper et al., The Law of Torts § 3.17, at 3:99 (3d ed. 1996) (valid arrest warrant affords privilege when properly served). ¶ 15 But Slade

and Brendel did not involve, nor have any Arizona cases addressed, whether a privilege applies when, as here, a false-ar rest claim arises from an a

rrest on an invalid2 Also, as the sheriff and th e dep uty point out, A.R.S. § 11-447 provides that a sheriff “shall execute all process and ord ers regular on their face and issued b y competent authority, whatever may be the defect in the proceedings upon which they were issued.” 9 warrant. Accordingly, on this issue of first impr ession, “we look to the Restateme nt for guidance.” Burns v. Davis , 196 Ariz. 155, ¶5, 993 P.2d 1119, ¶5 (App. 1999); see also Bruce

v. Chas Roberts Air Conditi oning, Inc ., 166 Ariz. 221, 801 P. 2d 456 (App. 1990) (Arizo na appellate courts follow Restatement absent case law to the contrary). ¶ 16 Restatement (Second) of Torts § 124 addresses invalid warrants and distinguishes between two types. The first type is an invalid warrant “fair on its f ace.” Id. at 213. This type of war rant appears “regular in form” but “differs from a valid warrant in one or more . . . particulars,” such as lack of jurisdiction over the person. Id. cmt. a, at 213. 2 A warrant fair on its face “is not valid, . . . but it creates the same privilege to arrest under it as a vali d warrant would create.” Id. Comment b to § 124 adds:

If a warrant, although in fact inval id for any reason, is in regular form and conta

ins every required recita

l of fact, and if

the facts stated, if true, would auth orize the court t

o iss ue it, and if thereis nothing stated or omitted to indicate that the procee dings nece ssa ry to its proper issuance have not been duly taken, the person designat ed to serve it is privileged to arrest under it even though, because of fac

ts not stated in it, the warran t is invalid. Id. at 214; see also Nelson v. City of Las Vegas , 665 P.2d 1141 (Nev. 1983) (althoug hvoid for lack of personal jurisdiction, f acially valid warra

nt provid es legal justification for arrest); 1 Dobbs, supra , § 82, at 191 (officer executing f acially valid warrant prote cted from liability even if warrant improperly issued); 1 Harper, supra , § 3.17, at 3:99 (appa rently valid warrant aff

ords arrestingo ffi cer privilege when warrant properly served); Keeton, supra , § 17, at 111 (officer10

privileged to arrest on warrant valid on its face, although warra nt invali d bec ause improperly issued). ¶ 17 Conversely, the law provides no privilege to an officer who arres

ts a person

on an invalid warrant that is not fair on its face. An invalid warrant is no t fair on its face

if the kind of examination whi ch the reasonable offic

er can fairly be expected to make would show that it is not va lid. Th e offi cer is required to know at least the superfic ial chara cteristics of a valid warrant; and he will be

liable i f it is too general in its terms, fails properlyt o name the party wanted, or is returnable at the wrong time, or does not charge a crime. Id. § 25, at 149-50 (foo

tnotes omitted) ; see also1 Harper, supra , § 3.17, at 3:100 (off icer not protected when officer can, by examination of warrant, determine its invalidity). ¶ 18 Based on the above criteria and the record before us, we c

onclude that the warrant

on which the deputy arrested Torrez was an invalid war rant fair on its face. No

thing in the record suggests that the duplicate copy of th e warrant in the sheriff’s file did not appear to be regular in form when Torrez was arreste d or that a reasonable exa mination o f the duplicate at that time would have disclosed its invalidity. Not only had the sheriff’s c omputer database shown th at the warrant remained active, but a sheriff’s employee had also found the duplicate in the sheriff’s file. This suggested that the warrant was still valid because, as noted above, the duplicate wou ld have been returned to the court had the clerk properly notified the sheriff t hat the warrant had been quashed. ¶ 19 Under the circumstances, the deputy was privileged to arrest Torrez on the facially valid warrant, and that privilege now protects the sheriff and the deputy from liabili ty on Torrez’s3 Torrez did not name the clerk of the court as a defendant in this case. 11 falsearrest claim. See Nelson ; Restatement § 124; Keeton, supra , § 17; 1 Dobbs, supra , § 82; 1 Harper, supra , § 3.17. As one court obse rved almost a century ag o: [F]or reasons founded on public p olicy, and in o rder to secure a prompt and effectiv

e service of legal proce

ss, the law protects its officersin the performance of their duties, if there is no defec t o r want of jurisdiction apparent on the face of the w rit o r warrant under which they act. Rush v. Buckley , 61 A. 774, 776 (Me. 19 05); see also Keeton, supra , § 17, at 111 (burden of mistake placed on person arrested on fac

ially valid warrant because so cially necessary that of

ficers have leeway to make arrest s). And, as we noted in Brendel , “[t]he fact that the [deputy] did not have the a ctual warrant in his possessio n, enabling him to inspect it, is of no conseque nce . Confirmation

that the warrant

was outstanding is a procedur e commonly used and is

necessary to effective law en forcement.” 12 1 Ariz. at 453, 591 P.2d at 79; see also Scott v. District o f Columbia , 493 A.2d 319 (D.C. 1985) (officer not liable for false arrest or false imprisonment after mak ing arrest based on law enfo rcement computer prin

tout that, on its face, ref le cted vali d warrant, although invalid because warrant had been issued for wrong person). ¶ 20 Torrez nonetheless asserts that the sheriff cannot “esca pe liability by pointing the finger” at the clerk of the court. 3 Torrez argues that the “S heriff ha[d] delega

ted a part of his duty in determining

the validity of warrants to the Clerk of the Superior C

ourt and its employees” and that“[t]his duty

is legally non-delegable, meaning that the Sheriff remains liable for the negligence of his agents.” We need not a ddress this issue, however, because Torrez did not include a12

negligence claim in his complaint. I ndeed, Torr

ez has con sistently maintained both in the trial court and on appeal that this case “does not sound in negligence.” ¶ 21 Accordingly, because we conclude th e deputy was privileged t o arrest Torrez on

an invalid warrant that was fa ir on its face, we affir

m the tri al cou rt’s granting of summary judgment in favor of the sheriff

andthe deputy on the false arr est claim. And, becau

se Torrez is not the prevailing party, we deny his request for attorne y’s fees on appeal.

____________________________ ___________ WILLIAM E. DRUKE, Judg e (Retired) CONCURRING:

____________________________ ___________ PHILIP G. ESPINOS

A, Chief Judge

____________________________ ___________ JOHN PELANDER, Presiding J udge