Buckler v. Johnson County Sheriff's Department

ULRICH, Judge. Mr. Buckler appeals from an order denying his motion for the court’s order directing expungement of his February 15, 1987, arrest.1 The judgment is reversed. Mr. Buckler contends that because of the extraordinary circumstances in the case, the trial court erred (1) in declaring that it was without inherent equitable power to expunge his February 15, 1987, arrest record, and (2) in denying his request for expungement. On February 15, 1987, while a student at Central Missouri State University and a resident of Warrensburg, Missouri, Mr. Buckler attended a party where he met Ms. R. At the end of the evening, Ms. R. offered to give Mr. Buckler a ride back to his residence at a mobile home park. Upon arrival at Mr. Buckler’s home, Ms. R. accompanied him into his trailer where, according to Mr. Buckler’s testimony, the two talked for awhile, drank beer, and then engaged in consensual sexual intercourse. The following day, however, Ms. R. gave a written statement to local law enforcement officers alleging that Mr. Buckler had forcibly raped her. She showed the officers a bruise on her leg that she claimed she received from the encounter. She thought she had scratched Mr. Buckler’s back. On February 16, at approximately 9:20 p.m., Johnson County Sheriff’s Deputy Eich visited Mr. Buckler at his residence. The Deputy questioned Mr. Buckler about the events of the night before. Mr. Buckler admitted having had sexual intercourse with Ms. R., but claimed that it was with her consent. He then voluntarily went to the Sheriff’s office to make a statement. At the Sheriff’s office, Mr. Buckler was shown Ms. R.’s statement alleging a rape had occurred which he denied. He also took off his shirt and showed Deputy Eich that there were no scratches on his back. Mr. Buckler was not arrested. He was taken back to his residence by a deputy. At a second meeting with Deputy Eich, Mr. Buckler agreed to take a polygraph [157] examination. However, upon advice of counsel, he refused to do so at a third meeting. At that point he was arrested for “investigation of rape,” fingerprinted, and photographed. He was not presented to a judge and was released without bond. No further action was taken in the matter. An assistant Johnson County prosecutor declined prosecution. Mr. Buckler seeks expungement of his arrest record because he has aspirations for a career in law enforcement. He is a college graduate with a degree in criminal justice and was a deputy sheriff of Platte County for two years. At trial Mr. Buckler admitted that he has not formally applied to any law enforcement agencies for employment, but he testified that he was advised by various law enforcement agencies and one of his college professors that an arrest record precludes his employment as a law enforcement officer. In its order denying expungement, the court found that, based upon Ms. R.’s statement, probable cause existed to arrest Mr. Buckler. It also found that § 610.100, RSMo 1986,2 controls and limits relief to “closing” Mr. Buckler’s arrest record but does not provide for expungement of the record. The court found that it lacks the equitable power to order expungement of Mr. Buckler’s arrest record. Mr. Buckler contends that his arrest was improper because of an absence of probable cause to justify it. The absence of probable cause constitutes an exceptional circumstance to support a court order directing expungement of the record of his arrest, he says. He contends the court erred in finding that probable cause existed. “The standard for arrest is probable cause, defined in terms of facts and circumstances ‘sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.’ ” Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854-861, 43 L.Ed.2d 54 (1974) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). The arrest, while not made pursuant to an arrest warrant, was based upon a sworn complaint and statement made by Ms. R. charging that Mr. Buckler had forcibly raped her. Mr. Buckler argues that the arrest was arbitrary because it did not take place until after he had refused a polygraph examination. The investigating officer intended to submit Mr. Buckler to a polygraph examination in furtherance of his investigation of Ms. R.’s allegations. Mr. Buckler has failed to provide any other facts to support his contention that his arrest was unreasonable. Although Ms. R.’s statement was uncorroborated, a reasonably prudent person could believe that Mr. Buckler had committed the crime alleged by Ms. R. Probable cause existed to effect the arrest. Although the arrest can be criticized as a coercive effort to obtain Mr. Buckler’s consent to submit to a polygraph examination, the motivation for the arrest does not eradicate the existing probable cause. Mr. Buckler also argues that his arrest was invalid because he was arrested for “investigation of rape,” and not for committing rape. “Investigation of rape” was the phrase used by the deputy when Mr. Buckler was arrested. How the officer labelled the charge is not controlling of the probable cause question. State v. Heitman, 589 S.W.2d 249, 254 (Mo. banc 1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2164, 64 L.Ed.2d 795 (1980), reh’g denied, 448 U.S. 912, 101 S.Ct. 29, 65 L.Ed.2d 1174 (1980). Probable cause existed for Mr. Buckler’s arrest and his arrest is not otherwise invalid. However, whether Mr. Buckler’s arrest on February 15,1987, was valid is not determinative of whether the record of his arrest should be expunged. Mr. Buckler claims the trial court’s finding that it lacked inherent equitable powers to expunge the record of his February 15, 1987, arrest was error. Missouri’s existing statutory scheme provides no means for a person in Mr. Buckler’s position to expunge his arrest record. The trial court considered § 610.100, RSMo 1986, which reads as follows: 610.100. Arrest records, closed, when [158] If any person is arrested and not charged with an offense against the law within thirty days of his arrest, official records of the arrest and of any detention or confinement incident thereto shall thereafter be closed records except as provided in section 610.120. This statute, while allowing for closure of arrest records, does not authorize expungement. In a case upholding the constitutionality of § 610.100, RSMo 1973, the United States District Court, Eastern District of Missouri, stated, “Valid justifications support the closure or expungement of the arrest records of persons not subsequently charged or ultimately determined to be innocent.” Herald Co. v. McNeal, 511 F.Supp. 269, 273 (E.D.Mo.1981). Section 610.100 refers to § 610.120, which defines closure. Section 610.120 states that records which are closed shall not be destroyed. The section provides that closed records shall be inaccessible to the general public and to all persons other than the “defendant” and certain designated entities. Law enforcement agencies are included among the designated entities having access to files closed pursuant to § 610.100. The statute allows law enforcement agencies to use closed records for “such investigative purposes as authorized by law or presidential executive order.” It follows logically that closed information about applicants for positions with law enforcement agencies may be viewed by law enforcement agencies and prejudicially influence a hiring decision.3 This statutory scheme provides Mr. Buckler with the limited remedy of closure of his arrest record to virtually everyone except law enforcement personnel. It does not provide him the remedy of expungement to eradicate his record and preclude its review by anyone. Mr. Buckler asserts that the only remedy that will redress his problem lies in the inherent equitable power of the courts to expunge his arrest record. The remedy which Mr. Buckler seeks is an extraordinary one and is not granted in routine situations. In State ex rel. Peach v. Tillman, 615 S.W.2d 514 (Mo.App.1981), the court discussed whether Missouri courts have inherent equitable powers to expunge records. That case observed that inherent equitable powers to expunge records are recognized by federal courts. It held that in situations presenting extraordinary circumstances such as an illegal prosecution or acquittal, Missouri courts of record have expungement power and expungement is warranted. However, the court refused to expunge the arrest record in that case because it found no extraordinary circumstances meriting expungement. The extraordinary circumstances test established in Peach was cited with approval by this court in State v. Bachman, 675 S.W.2d 41, 51 (Mo.App.1984). While Missouri courts of record have inherent equitable power to expunge records, the expungement power is limited to cases involving illegal prosecution, acquittal, or extraordinary circumstances. Peach, 615 S.W.2d at 519. Mr. Buckler’s situation is one of extraordinary circumstances. The apparent purpose of the arrest, to coerce a consent to permit a polygraph examination; the sum of the evidence of criminal conduct being the complaining witness’s uncorroborated statement; the county prosecutor’s declination to charge and prosecute the appellant; the appellant’s expressed career goal to be a law enforcement officer and his prior employment and educational accomplishments to obtain his goal; the accessibility of the arrest record to law enforcement agencies, even if closed pursuant to § 610.100; the appellant’s probable rejection by law enforcement agencies because of the record of his February 15, 1987, arrest; and ex-pungement of the record constituting the only adequate remedy, collectively comprise extraordinary circumstances invoking [159] the court’s inherent equitable power to expunge the February 15, 1987, arrest record. The trial court’s finding that it lacked inherent equitable powers to expunge Mr. Buckler’s February 15, 1987, arrest record was erroneous. Considering the evidence of record, the refusal of a circuit court to order Mr. Buckler’s February 15, 1987, arrest record expunged would be an abuse of the court’s discretion as a matter of law. Therefore, to remand the case to the trial court for exercise of its discretion would serve no valid purpose. The judgment is reversed, and the case is remanded with directions to enter an order directing ex-pungement of the appellant’s February 15, 1987, arrest record. GAITAN, P.J., concurs. MANFORD, J., dissents in separate dissenting opinion. Footnotes [1] Although Mr. Buckler commenced this action by filing a motion, the motion has been treated as a petition pursuant to Rule 53.01. [2] All references to statutes are to RSMo 1986 unless otherwise stated. [3] But see, Martin v. Schmalz, 713 S.W.2d 22, 24 (Mo.App.1986). In holding that a private security service inappropriately used an applicant’s arrest record to refuse him employment, the court relied on what it called the “uses set forth in Sec. 610.120, [Supp.1984], i.e., prosecution, litigation, sentencing and parole purposes-’’ No such specific uses are, however, delineated in the statute.