                                                    NO. 8 3 - 5 2 7

                   I N THE SUPAREMECOURT OF THE STATE O F M N A A
                                                           OTN

                                                       1984




IIOSALIPJE VOGEL.   ,
                            P l a i n t i f f and A p p e l l a n t ,

         VS.


GIBSON'S DISCOUNT CENTERS; e t a l . ,

                            D e f e n d a n t s and Res-pondents.




Appeal from:       D i s t r i c t Court o f t h e Thirteenth J u d i c i a l D i s t r i c t ,
                   I n a n d f o r t h e Countv o f Y e l l o w s t o n e
                   Honorable Diane G . B a r z , J u d a e p r e s i d i n a .

C o u n s e l of Record:

                   For Appellant:

                           Lewis E. Brueaqemann, B i l . l i n u s , Montana

                   For Respondents:

                           Herndon, H a r p e r and Flunro, B i l l i n g s , Montana

                           McNamer, Thompson & Cashmore, B i l l i n g s , Montana




                                               Submitted. on b r i e f s :      J a n u a r y 1 2 , 1984

                                                                   Decided:           1 0 , 1 38 4




    --
                                                                        Clerk
Mr. Justice John Conway Harrison delivered the opinion of
the Court.

       This action stems from an incident which occurred on
the premises of respondent Gibson's Discount Centers' store
in Billings, Montana, where appellant Vogel was accused of
shoplifting.     Appellant brought an action against the above
named respondents for false arrest, which was dismissed by
the   District   Court    on    respondents' motions    for    summary
judgment.    This appeal follows.
       The   facts of     this case are very much       in dispute.
However for purposes of ruling on the motions for summary
judgment, the trial court accepted appellant's version of
the facts as true and they are set forth below.
       On May 28, 1983, appellant, her aunt and appellant's
ten month     old   child      traveled   from Hardin, Montana to
Billings, Montana.       When they arrived in Billings, they went
directly to the Gibson's store.           The two women entered the
store, leaving the child sleeping in appellant's car.              The
aunt obtained a shopping cart, but appellant carried only
her diaper bag, which doubled as a purse.          Inside the store
the two split up, appellant going to the shoe department and
her aunt to the lawn department.          Appellant tried on several
pairs of sandals before selecting a pair she wanted.            As she
left the shoe department she placed the sandals in her bag
with the heels exposed.           The sandals were bound together
with a plastic tie on which was the price tag.                Both the
heels and the price tag were outside the bag.          At this point
a   security officer, an         employee of Gibson's,    began    her
surveillance of appellant.
       Appellant rejoined her aunt, showed her the sandals,
and r e t u r n e d them t o t h e i r former p o s i t i o n i n t h e bag.                       The

p a i r proceeded t o the check out counter where t h e a u n t began
unloading       her       shopping       cart.        Appellant          inquired             of   the

c l e r k where she might purchase a b a t t e r y ,                         and was t o l d t o
try     the     electronics           department.                 She        walked           to   the
electronics         counter        and    made      her     request           to        the    clerk.
While     appellant         was     waiting       for      the     clerk           to     find     the

battery,       the security o f f i c e r           approached her and                    informed
her t h a t she had watched                a p p e l l a n t p u t t h e s a n d a l s i n her

bag.     The s e c u r i t y o f f i c e r asked t h a t she be allowed t o look
i n a p p e l l a n t ' s bag,    but a p p e l l a n t d e c l i n e d .       She was then
e s c o r t e d t o an o f f i c e i n t h e r e a r of          the store.               En r o u t e

appellant        was       advised       that      she      was     being           accused         of

s h o p l i f t i n g and read her Miranda r i g h t s .

         I n t h e r e a r of t h e s t o r e , a p p e l l a n t ' s bag was emptied.

The    contents        included        the    sandals        and     a       comb which            was
a l l e g e d l y unpaid    for     also.        The p o l i c e were summoned and
they a r r i v e d a s h o r t time l a t e r .         Appellant was placed under
a r r e s t on s u s p i c i o n of t h e f t and t r a n s p o r t e d t o t h e p o l i c e

station.         She was         later     convicted        after        a     jury       trial     in

B i l l i n g s Municipal Court.

         Appellant brought t h i s a c t i o n f o r f a l s e a r r e s t i n t h e

D i s t r i c t Court,     a l l e g i n g t h a t t h e r e was no probable cause
f o r her a r r e s t .    A f t e r a period of d i s c o v e r y t h e respondents
a11 moved f o r summary judgment, arguing t h a t a s a m a t t e r of

law t h e r e was probable cause f o r her a r r e s t .                           The D i s t r i c t

Court acquiesced i n t h i s argument and g r a n t e d t h e motion f o r
summary judgment, d i s m i s s i n g t h e claim.                 T h i s appeal i s from

the order d i s m i s s i n g t h e cause of a c t i o n .
         The D i s t r i c t Court r u l e d t h a t s i n c e t h e s a n d a l s were
not    in    full view,          the    security officer              and    the    police
officers had probable cause to arrest appellant as a matter
of     law.         This         conclusion            was     based        on     Section
46-6-501(1)(a),            MCA,         which           provides      that       removing
merchandise        from full view while                   on   the     premises         of   a
merchant       is       prima     facie          evidence      of     "concealment."
"Concealment" is defined in that section to mean, "[Alny act
or deception done purposely or knowingly upon or outside the
premises of a wholesale or retail store or other mercantile
establishment with the intent to deprive the merchant of all
or    part    of    the    value       of        the   merchandise."             (Emphasis
supplied.)          Thus concealment, as defined there, includes
both an act or deception and the intent to deprive, which
are the basic elements of the crime of theft.                               See Section
45-6-301(1)(b).            Since the sandals were in less than full
view, the court concluded                        that    there was prima            facie
evidence of both the act and requisite intent, and probable
cause to believe appellant had committed theft existed as a
matter of law.
        While      it may        be    true that there was                  prima    facie
evidence of "concealment" as defined in Section 46-6-501,
MCA, that term has limited meaning.                             The definition of
"concealment" in that section is prefaced by the phrase, "As
used in this part.          .."         As used in that part of the code,
"concealment" authorizes                a merchant to search a suspected
shoplifter,        it     does    not       by    operation      of    law       give    him
probable cause to arrest the suspected shoplifter.                                 Section
46-6-503(2), MCA.           In fact Section 46-6-502(3) which is in
that same part of the code authorizes arrest by a merchant
only upon probable cause to believe that shoplifting has
occurred.    It does not allow an arrest after the simple act
of concealment.    Probable cause may exist as a result of a
stop pursuant to Section 46-6-503, or it may exist prior to
such a stop, but it must exist.         It may not be inferred
solely from the act of concealment.
       In the present case that is exactly what the trial
court did in ruling tha-t probable cause existed as a matter
of law because of the concealment.           However, there remain
issues of material fact which should be resolved at trial,
and do not make this case ripe for summary judgment.         Cereck
v. Albertson's Inc. (1981), 195 Mont. 409, 637 P.2d            509.
Where the heels of the shoes and the price tag were exposed,
and the woman was still in the store and had               not gone
through the check out counter, there remains an issue of
fact on the existence of probable cause to believe appellant
had   the requisite intent to deprive.           Therefore summary
judgment was in error.
       We note that the parties have brought to our attention
on appeal the fact that appellant was convicted of theft
after a jury trial in Billings Municipal Court.        Respondents
claim this conclusively established probable cause pursuant
to our ruling in Duran v. Buttrey Foods, Inc. (Mont. 1980),
616 P.2d    327, 37 St.Rep.   1545.     Since this argument was
first raised on appeal we decline to consider it.               See
Hanley v. Department of Revenue (Mont. 1983), 673 P.2d 1257,
40    St.Rep.   2054.    However      this    does   not   preclude
respondents from presenting this argument to the District
Court on remand.    If the court finds Duran controlling, the

case should be dismissed.
       Reversed and remanded for further proceedings in
conformance with t h i s opinion.




W e concur:




Mr.   J u s t i c e J o h n C . Sneehy:

       I concur i n t h e r e s u l t .


                                   (- .
                                               /
                                                       i
                                                   Justice
                                                           4   , +
                                                               m
                                                               ~

                                          ii
                                               i
                                               i
                                               i
                                                                   I
