501 P.2d 111 | Utah | 1972
Lead Opinion
Mitchell Hurley, a minor, appeals from a decree of the Juvenile Court, wherein he was fined $75 for his violation of Section .76-28-54, U.C.A.1953. Specifically, he was found to have knowingly, resisted, delayed .and obstructed one Officer Shilaos, a public officer, in the performance of his duty, to wit: arresting one Michael Valdez.
On July 18, 1970, about 5:30 in the afternoon, Valdez and Hurley were walking through an alley, which is located approximately a half block west of the University ■of Utah and runs parallel thereto in a northerly-southerly direction. Hurley testified that they had been visiting in a city park, located north of the alley, and that they used the alley as a means to go to a soft drink stand located south and west of the southerly terminus of the alley. Approximately 50 feet from the northern terminus of the alley, Hurley testified that they observed a Volkswagen with the lid of the engine compartment in a raised position. The boys stopped to observe the engine ánd engage in a brief discussion. As Hurley walked away, an automobile came down the alley, a man emerged, inquired what they were doing and demanded identification. Before Valdez could produce his identification, the man grabbed him, and Valdez attempted to free himself. The man, who was a police officer for the University of Utah by the name of Shilaos, wrestled Valdez to the ground. Hurley attempted to separate the two in response to Valdez’s screams for assistance. Other officers subsequently arrived, and the boys were arrested.
Officer Shilaos testified that while he was patrolling the alley, he observed Valdez with a pair of pliers. From the motion of his arms, it appeared to the officer that Valdez was working on the engine. The officer stopped to inquire if they needed assistance. Valdez explained that he was repairing the car for his friend, John. Since Valdez did not know John’s last name, the officer asked for identification. Upon observing the identification, the officer inquired whether he knew Valdez from somewhere, and Valdez responded: “Don’t you remember?” Valdez struck the officer a blow to the head,
Based on the foregoing, the trial court found that the minor, Hurley, had violated Section 76-28-54, U.C.A.1953.
On appeal, Hurley asserts that the officer was not discharging any duty of his office so as to invoke the statute. The relevant provisions of Section 76-28-54, U.C. A. 1953, provide:
Every person who wilfully resists, delays or obstructs any public officer in discharging, or attempting to discharge, any duty of his office, .
Hurley contends that the officer had no duty of his office to discharge in the area of the alley; and, therefore, the arrest of Yaldez was that of a citizen and not of a public officer.
The officer testified that he had never been instructed to patrol the alley but he included the area on his own volition to protect the “interests” of the University of Utah.
In State v. Sandman
Whether the officer was engaged in performing an official duty must be determined by the specific powers granted in Section 53-45-5, U.C.A.1953, which provides :
Members of the police or security department of any state institution of higher education . . . shall be peace officers and shall also have all of the powers possessed by policemen in cities providing, however, that such powers may be exercised only in cities and counties in which such institution, its branches or properties are located and only in connection with acts occurring on the property of such institution or when required for the protection of its interests, property, students or employees, . . . . [Emphasis added.]
Since the instant case did not involve any act occurring on the property of the institution, the issue is whether the officer’s patrol was within the purview of the phrase “when required for the protection of its interests, property, students or employees.” There emerges from the statute a legislative intent to restrict the ex
In the instant action, the sole “interests” of the University asserted in this area were the location of a fraternity and a religious institute for students on the block plus a claim that some students parked their cars in the alley. These interests were too remote and indirect to invoke the extraterritorial exception in Section 53-45-5, U.C.A.1953. We are, therefore, compelled to conclude that the officer was not engaged in the performance of an official duty, a necessary element of the offense with which Hurley was charged. The judgment of the Juvenile Court is reversed.
. 4 Utah 2d 09, 71, 286 P.2d 1060 (1955).
. W. S. Hatch Co. v. Public Service Commissioner, 3 Utah 2d 7, 11, 277 P.2d 809 (1954).
Dissenting Opinion
(dissenting)
In this review of a conviction, we are supposed to assume that the court believed those aspects of the evidence favorable to the sustaining of his findings and order. I am therefore somewhat at a loss why we are concerned with the “explanations” of the defendant, which expectably, are from his point of view.
My reading of the record leads me to a different view of the situation than seems to be reflected in the main opinion. It is true that Officer Shilaos, in what impresses me as an attempt to be very fair with the defendant, indicated that “at times he appeared to be helping me and at others to be helping Valdez.” But a reading of the whole testimony, of the officer, and more particularly of the defendant himself, leaves no doubt in my mind that the trial judge was justified in making each of the findings, paragraphs (a), (b), and (c), quoted below.
The most important aspect of this case is that, as I view this record, the findings, paragraphs (a) and (c) reciting that the defendant used force and violence upon the officer, stand unassailed, as will be explained below; and that those findings themselves support the judgment.
When one keeps in mind that our statute makes anyone who aids or abets in the,, commission of a crime guilty as a principal,
(a)On or about the 18th day of July, 1970, in violation of Section -76-7-3
UCA, said child willfully and unlawfully-used force or violence upon the person of Officer Shilaos;
(b) On or about the 18th day of July, 1970, in violation of Section 76-28-54 UCA said child knowingly resisted, delayed and obstructed Officer Shilaos, a public officer in the performance of his-duty, to-wit: Arresting Michael Valdez;
(c) On or about the 18th day of July, 1970, in violation of Section 76-60-5 UCA said child did maliciously injure- and destroy the personal property of Officer Shilaos and the U. of U. Police Department as follows: Shirt, watch band, and uniform.
It is, THEREFORE, ORDERED ADJUDGED AND DECREED
• * * * * * *
2. That _he_ be and is hereby: Fined the sum of $75.00;
I think it pertinent
If the said findings (a) and (c) were in fact in error because they should not properly have been included in the court’s findings, they should have been attacked by appropriate motion, calling the court’s attention to the error and giving it an opportunity to rectify it.
Notwithstanding what I have stated above, which in my judgment should dispose of this appeal, in view of the treatment of the other finding (paragraph (b)) in the main opinion, I feel impelled to also express my views thereon.
The argument which the defendant makes with respect to said finding ' (b) is that “the University police officer was acting beyond his statutory authority and therefore was not a public officer performing his duty . . . ”. It is also my opinion that the trial court was amply justified in finding that the police officer was within the performance of his statutory duty when he was obstructed by the defendant, as found in said paragraph (b), which is
The authority of the police of institutions of higher education is provided in Sec. 53-45-5, U.C.A.1953, which states that they:
shall be peace officers and shall also have all of the powers possessed by policemen in cities providing, however, that such powers may be exercised only in cities and counties in which such institution, its branches or properties are located and only in connection with acts occurring on the property of such institution or when required for the protection of its interests, property, students or employees,
Care should be taken to note not only wherein the emphasized language is a limitation, but also wherein it is an extension of the authority granted the University Police. Their authority is not restricted to the University Campus but may be exercised “in cities and counties in which such institution” is situated, and thus obviously beyond the confines of the University Campus. In complete harmony with this is the succeeding language: that the authority may be exercised in two situations, stated in the disjunctive . . in acts occurring on the property of such institution —or—when required for the protection of its interests, property, students or employees, ...”
The main opinion correctly recites that “the sole ‘interests’ of the University asserted in this area were the location of a fraternity and a religious institute for students on the block, plus a claim that some students parked their cars in the alley.” I confess my inability to see either logic or propriety in the main opinion’s declaration that “the word ‘interests’ is broad and all inclusive . . .” and then proceeding to make what I think is a very restrictive application of that term by ruling that the protection of the interests of the University and its students, i. e., the safety of their persons and property, practically contiguous to the Campus, is not within the authority granted by the statute, which expressly extends not only to the property [Campus] but to “cities and counties in which such institution [s] . . . are located . . . .”
It seems safe to assume that all reasonable and law-abiding persons will agree that the power of the police should be exercised with reason and restraint; within the grant of power prescribed by law; that their conduct should be neither arrogant, high-handed nor over-reaching of their authority, much less that there should be what is referred to as police brutality. To my mind there is nothing in this case even closely approximating any of the excesses just stated.
In justification of the trial court’s finding in paragraph (b) as to obstructing the
This question needs to be confronted: What kind of officers, and what kind of law enforcement would we have, if the officer had at that point simply left the scene? The officer very properly and courageously proceeded to tell Valdez he was under arrest, and attempted to subdue Va'ldez, and to defend himself. The defendant joined in the melee to prevent the officer from subduing Valdez and joined in subjecting the officer to some very rough treatment and physical abuse which no person, even a police officer, should be required to endure without redress.
It should require no elaboration to demonstrate what undesirable effects may result from the main opinion’s unduly restrictive interpretation and application of the statute. But quite apart from that, and most definite and persuasive in this particular case, is the fact that the two other findings, paragraphs (a) and (c) as here-inabove discussed, stand unassailed; and that they amply support the judgment, which should therefore be sustained. (All emphasis added.)
. See. 76-1-44, U.C.A.1953.
. It is to be acknowledged that there is in the file a letter from the juvenile judge, responding to a letter from defence counsel, in which lie indicated agreement with defense counsel's statement that
. See Hamilton v. Salt Lake County, etc., 15 Utah 2d 216, 235 and authorities cited in footnote 6 thereof, 390 P.2d 235; also Williamson v. D. & R.G.W.R. Co., 26 Utah 2d 178, 487 P.2d 316.
. That entering an automobile is burglary, see 76-9-3, U.C.A.1953; as to authority of a peace officer to make an arrest ■without a warrant, see 77-13-3, U.C.A. 195a