*1 Utah, Plaintiff and STATE of
Respondent, GARDINER, A. Defendant
Chad
and Petitioner. 890231.
No.
Supreme Court Utah.
June *2 progress at the Dam, Thompson, party that a .loud was B. David R. Paul Van minors City Airport and that were Vernal City, for State of Utah. Lake Salt party. ap- consuming alcohol at that At Souvall, Vernal, for Gardiner. Harry H. a.m., Lytle Deputy Jim was proximately 3 airport investigate dispatched to the THE UTAH TO ON CERTIORARI City Officer Steve Hat- complaint. Vernal OF APPEALS COURT Terry Shiner zidakis and Reserve Officer Deputy Lytle in responded to assist ZIMMERMAN, Justice: investigation. appeals from a Chad Gardiner Defendant party The officers located a at the Dina- assaulting peace officer un- a conviction building. Hat- land Aviation While Officer the Code and a 76-5-102.4 of der section talking in a zidakis was to individuals ve- interfering peace a offi- conviction building, he noticed that hicle near the of the Code. under section 76-8-305 cer attempting sliding to close a someone was 76-5-102.4, Ann. 76-8-305 Code Utah §§ building. on Officer Hatzidakis door out of an (1990). These convictions arose There, doorway. to the he smelled a went per- refused to Gardiner incident which strong odor of alcohol and saw several a search of the mit an officer to conduct building he people within the whom be- progress. party a was premises where minors. He announced his lieved to be right that he had a claims Gardiner building enter the to check for intention to illegal the officer’s forcibly resist presence of minors. ensuing arrest. Gardiner, point, At defendant Chad appeal are several. claims Gardiner’s building, stepped in the forward who was First, right argues that he had a and stated that his father owned build- Bradshaw, 541 resist because the officer for a ing. Gardiner asked (Utah 1975), recognized this court Upon being told that the search warrant. forcibly common law a citizen’s warrant, said that had no Gardiner officer peace officer. illegal arrest a resist an enter, stepped could not Officer Hatzidakis Second, that he could not be he asserts of the officer at eight to ten inches within violating be- guilty of section 76-5-102.4 doorway, and extended his arm to assaulting peace a it cause bars prevent the door and side block or her acting within the of his Hatzidakis entering. Officer officer from authority. He contends that the officer’s Gardiner, who then fell backward pushed and, building entry into the table, collapsed under him. a which onto therefore, the officer was not up, rushed toward Officer got Gardiner authority. Finally, he con- Hatzidakis, him in face. punched Code, 76-2-406 of the tends that section out of the knocked the officer blow to de- permitting the use of force statute building, struggle building. Outside gave him the to resist property, fend the three Gardiner and ensued between property. search of his We the officer’s being informed Officer officers. After contentions disagree with all of Gardiner’s arrest, under Gard- Hatzidakis that he was uphold his convictions. stop fighting again but iner did not light most favor- recite the facts We in the face. Gardiner punched the officer State, prevailing party to the be- jail. able taken to ultimately subdued and Verde, 770 P.2d low. See State charged with two counts of Gardiner was 1989); Lynch, Lamkin v. officer, count of assaulting one (Utah 1979); First Pauli v. Zions officer, and one interfering with a 183, 184, Bank, 18 Utah 2d Nat’l private place. count of intoxication (1966). 759, 760 jury by The case was heard without Payne Eighth Circuit morning April Judge Lynn A. During early hours County. Judge Payne De- County Sheriff’s Court Uintah the Uintah count of as- complaint found of one anonymous received an partment making it statute unlawful count of that Utah peace officer and one saulting a interfering forcibly officer. See resist an with a a citizen to 76-5-102.4, Code so as make it was written unconstitu- §§ given a one- $500 was fined say tionally vague. went on to Bradshaw *3 year suspended sentence. legislature, passing if in in that the dicta in had to question, the intended statute In appealed his an convictions. Gardiner “willingly Ap punish of citizen who refused to opinion, unpublished the Utah Court by arrest,” Officer Hat- the peals that the search an then ruled submit to unlawful were no illegal there zidakis was both the state statute would also violate justified a war- exigent that circumstances This Id. 801. and federal constitutions. court went rantless search. dicta, Gardiner, plainly recognized claimed legality of the search say on to an to resist English common law Rather, issue. the de pivotal was not arrest; indeed, it unlawful constitutional- a citizen has the ciding was whether issue it. an search is direct- ized Because peaceful forcibly search resist to arrest, ly analogous to an search is at some later an officer when that present argued, governed Bradshaw illegal. The court to be date determined appeals’ holding court was case and the of Alaska, from Elson v. a decision followed in direct conflict with Bradshaw. (Alaska 1983), State, P.2d 1195 petition appeals court denied Gardiner’s of English recognize to declined grant- This court then without comment.1 that a citizen does have such a law rule writ of certiorari. ed Gardiner’s Instead, appeals right. the court of held claims, passing first may an In on Gardiner’s we that not resist one officer, illegal, if defen his appeals even “unless note that the court of affirmed [the] the officer assaulting can show that was ... dant for officer conviction authority, or acting pursuant to his Code, of but [or her] under section 76-5-102.4 had force.” v. Gard used excessive State conviction for interfer- did not mention his (Utah iner, Ct.App.1989). Be No. 880557 under 76- ing with a section had not carried his burden cause defendant the Code. Our review of Gard- of issues, the court affirmed his con on these it appeals iner’s in the court of makes brief assaulting officer. viction for appealed from convic- clear that he both challenges tions and that to both were petitioned for a then re Therefore, presume virtually identical. appeals’ hearing, arguing that the court of ruling appeals of intended its that the court in holding' conflict with this court’s was ad- apply to both convictions. We will Bradshaw, v. decision State Bradshaw, (Utah 1975). opinion. dress convictions our In this court held both opinion; yet ap- unpublished court of announced in the 1. note with some concern the We sum, opinion unpublished. peals’ Appel- of use of rule 31 of the Utah Rules remained dispose plainly of via be Procedure to this case an not one could late case rather opinion, unpublished disposed even after Bradshaw was properly under rule of 31. appel- Rule 31 an unpublished opinions called to its attention. allows have been The evils of any "dispose qualified case” court to of upon many. paucity late commented Given the upon unpublished opinion its own motion. Utah, justifica- precedent of there seems little terms, However, by own the rule tion use a case deserves ”[I]f for their here. appropriate for where there are “substantial use being opinion, opin- disposed byof written issues, significant public of issues constitutional interest, published. truly If a ion should be decision impression, issues law of first or of law, nothing disposed adds it should be complicated fact law.” issues of Utah byor order from the bench a short written R.App.P. parties to no one be informative to but Paffel, Here, else." 732 P.2d appeals’ opinion es- the initial court Paffel J., 1986) (Zimmerman, concurring). law, a dis- For opinion a new rule of tablished potential problems associated yet cussion of acknowledged; opinion was un- itself published. Reuben, unpublished opinions see Publish- appeals court Then the denied Part, Part, (Summer Litig. brought ed in Buried petition rehearing, which Gardiner’s 1990), Paffel, 732 P.2d dicta Bradshaw that the court’s attention Paffel (Utah 1986). flatly contrary appeared to be the new rule acceptance contention, We also note our dant’s but instead struck the appeals’ conclusion that Officer court statute down as invalid vagueness building grounds. il Hatzidakis’s search of The court reasoned that terms legal. “regardless This court has held that absent one such as of whether there is a category exigent legal circum narrow basis for the arrest” and “interferes” stances, “per warrantless searches are se could have a meanings number of and in- terpretations. basis, unreasonable under the fourth amend On that this court Ashe, ment.” 745 P.2d concluded that the statute to in- “fail[ed] (Utah 1987); Christensen, form ordinary see also State v. citizen seeking who is (Utah 1984). obey princi That sought laws as to the conduct much, more, ple proscribed.” Bradshaw, has as if not force under *4 541 P.2d at the Utah Constitution. See State v. Laroc- 802. co, 1990). Although majority the Bradshaw did not
Therefore, squarely presents this case decide person the case on the basis that a question of whether Gardiner had a com right, otherwise, had a constitutional or to statutory right mon law or to resist what arrest, use force illegal to resist an it did illegal was later determined to be an reach this issue dictum. Justice Tuck- separate search. Gardiner makes three ar opinion ett’s stated: convictions, guments attacking his but all If legislature the intention of the really are variations on a theme. penalize law-abiding by a citizen incar- Gardiner’s first contention is that ceration because he did not will- [or she] adopted Eng our decision Bradshaw ingly arrest, submit to an unlawful person lish common rule that law can authorizing statute the same is in viola- forcibly and, resist an unlawful arrest tion of both the United States therefore, right forcibly that he had the permits Constitutions ... in that it resist Officer Hatzidakis’s search of Dina- probable authorizes an arrest without Response land Aviation. argument to this cause and without lawful basis for the requires a rather detailed discussion of arrest. Bradshaw. Henriod, at 801. separate Id. Justice charged concurrence,
The defendant in Bradshaw was stated that he would have resisting with arrest violation of struck the vague- what statute down not was then section 76-8-305 grounds, ground of the Code. ness but also on the See Utah Code Ann. (Supp. the statute violated the state search and § 1973). person That statute read: “A provisions by making any seizure unlawful guilty of B illegal a class misdemeanor he when resistance to an arrest. Id. at SOS- intentionally per- interferes awith OS. [or she] recognized son to be a law enforcement separate opin- The two dissenters wrote seeking official to effect an arrest or deten- disagreed ions. Each statement tion of himself or another re- [or herself] majority opinion that it uncon- would be gardless legal of whether there is a basis legislature stitutional for the to make it for the arrest.” Id. The defendant chal- illegal unlawful to resist an arrest. Id. at lenged statute, constitutionality of the (Ellett, J., dissenting); at id. claiming that it violated the search and (Crockett, J., dissenting). Justice Ellett ex- seizure clause of the Utah Constitution. plained by noting: his view of the matter Const, I, Although art.
See Utah gave person The common law opinion point, appar- is not clear on this right arrest, to resist an unlawful but ently illegal claimed that an arrest amount- changed times since have the time when ed to an unreasonable seizure. self-help permitted prevent majority opinion, The by wrongful law, written Justice arrest. At common ar- Tuckett, joined by Maughan, Justice rests were often made citizens. Henriod, separately concurred in Judges speedy Justice were not available re- dispose bond, did not of the case on the long defen- lease on and trials de- were circumstances, speedy no or ef longer there was no exist.
layed. Such conditions
way
challenge
illegal
taken forth-
must be
fective
arrest.
An arrested
and trial must
magistrate,
adoption
rule
Tooley
with before
of the
seemed
delayed. A
unreasonably
defen-
justifiable.
not be
that time both reasonable
reasonable
is entitled to bail
Warner,
Act,
dant
S.
Arrest
Uniform
amount.
(1942)
315, 330
28 Va.L.Rev.
[hereinafter
view,
Bradshaw,
In his
at 805.
“Warner”].
P.2d
majority’s ob-
protections mooted the
these
right has
this common law
the statute’s substance.
jection to
“[The
See,
subjected
criticism.
been
to extensive
permit
an unlawful sei-
does
statute]
Hatton,
Ariz.
e.g., State
(arrest). merely
It
transfers
zure
Hess,
(1977); People
wrongful
for a
redress
(Colo.1984);
Warner at
instead
procedure of court trial
orderly
self-help
doc-
330-31.
criticism
in the streets.”
Id.
a brawl
fact,
is based on
noted
Justice
trine
asserts
dissent,
dangers flowing
Ellett’s
adopted
law
the common
Bradshaw
existed when the
from
arrests which
forcibly
resist an
arrest.
*5
adopted
substantially
rule was
are
reduced
language
acknowledge
of both
We
Bradshaw,
(Ellett,
today.
P.2d at 805
541
opinion and Jus-
majority
Tuckett’s
Justice
J., dissenting). An arrestee now has the
suggest
concurrence does
tice Henriod’s
bonding policies, ap-
of
“benefits
liberal
right
forcibly
only a common law
indigency,
case of
pointed counsel in the
and,
extension,
by
illegal
resist an
arrest
opportunity
taken
and the
to be
before
search,
and feder-
illegal
but also a state
magistrate
arraignment
for
and
immediate
right
constitutional
as well.
al
hearing.”
v.
preliminary
State
Richard-
strongly majority
of the
matter how
no
450,
263,
son,
446,
95 Idaho
267
of the
sat on Brad-
members
court which
issue, they
in
felt
this
did
1975
about
shaw
ground.
the case on this
not decide
support
rejection
Similar considerations
holding
unconstitutionality
majority’s
illegal
the doctrine
searches are
where
vagueness
Any
on
alone.
dis-
was based
Supreme Court of
concerned. The
New
right to resist is
cussion of the substantive
Doe,
100,
92 N.M.
583
Mexico
only,
by
and
court is not bound
dictum
this
(1978),
dangers
P.2d 464
summarized
Rimmasch,
dicta.
v.
775
earlier
See State
self-help rule and its rea-
the common law
Therefore,
388,
(Utah 1989).
400
P.2d
rejecting
rule where
sons for
searches
comments of
Bradshaw
are concerned:
controlling,
this
issue are not
and
court
this
Self-help
measures undertaken
pass upon
recog-
yet
has
whether
objects
potential
who
to the
defendant
availability
of a common law
nizes
legality of
can lead
violence
the search
forcibly
illegal
resist an
search
arrest
injury. The
physical
and serious
societal
right.
orderly
settlement
dis-
interest
English
right to
common law
forci
govern-
and their
putes between citizens
attempting
one
to effect
il
bly resist
outweighs any
ment
individual interest in
almost three
legal arrest was established
questionable
resisting a
search. One can
ago
Tooley, 2
years
Regina
v.
hundred
reasonably
peaceably
to submit
be asked
1296,
(Q.B.
Rep.
Raymond
1299-1301
Ld.
legal
take
in his
reme-
and to
recourse
1709).
As Justice Ellett’s dissent Brad
dies.
noted,
decided
Tooley
case was
shaw
Doe,
102-03,
tended
so,
reject
to do
inclined to
we would be
illegal
to resist an
English
adopt
common law and
the diluted
well, including
Supreme
searches
defense to an
search or arrest artic
upon
in the decision relied
Court of Alaska
ulated in Elson and similar decisions.4
State,
appeals,
the court of
Elson v.
However, we conclude that we are not free
(Alaska 1983).
case,
In that
legisla
to fashion such a rule because thé
suspi-
pulled
defendant had been
over for
*6
already
in
ture has
acted
the area. Com
driving.
per-
cion of drunk
As the officer
rights to
are not
mon law
resist arrest
down,”
“pat
he
a hard
formed a
noticed
the common law has been
relevant where
right pants pock-
in
object
the defendant’s
replaced by statute.
attempted
et. The officer then
to remove
legislature
the Utah
enacted the
When
object, and the
resisted. Be-
the
defendant
1973,
in
it
all
Utah criminal code
abolished
Court,
Supreme
the defen-
fore the Alaska
Ann.
common law crimes. Utah Code
argued that he had a constitutional
dant
Now,
(1973).
in Utah a
76-1-105
forcibly
he
resist what
believed
§
person’s
if that
of a crime
disagreed
search. The court
be an
the
held,
actions and state of mind fit within
private
citizen
not use
“[A]
statutory
elements of a crime.
peaceful
by one
definitional
force to resist a
search
76-1-105;
Ann.
v.
good
E.g.,
he knows or has
reason to be-
Utah Code
State
who
cases,
legislative
following
rejected
and nineteen states
enact-
2.
In the
courts have
the
sion
421,
State,
person may
that "a
rule: Miller v.
462 P.2d
ment had determined
common law
Hatton,
(Alaska 1969);
accomplished
v.
116 Ariz.
resist an unlawful arrest which is
427
State
Mass,
Moreira,
142, 147-48,
1040,
(1977);
without excessive force.”
388
568
1045-46
446, 451,
600,
Richardson,
Idaho
511 P.2d
On the other apply a correctness standard pre- findings, we prove that the require that the State legal is not if the standard is not and reverse performing officer is cise act the Supply i.e., satisfied. Mountain Fuel Co. the arrest or legally challengeable, that Turning to the second count City Corp., Salt Lake convicted, 76- (Utah 1988); Corp., 700 which Gardiner was section v. BMG Scharf (Utah 1985); provides: Margulies (Utah 1985). 1195, 1200 Upchurch, 696 P.2d is of a class B misde- A knowledge, if or light to the meanor he has most favorable Viewed [or she] care, court, that Officer Hatzi- the facts are the exercise of reasonable trial anonymous phone responded a knowledge, dakis to an have that offi- should party a the Vernal reporting seeking call loud or to effect a lawful arrest cer duty at He and on Airport. was uniform anoth- detention of himself or [or herself] Upon responded he to the call. time such er and interferes with scene, he informed Gardiner arrival at of force or use of detention use officer and that he was and others weapon. any building he to search the intended (Supp.1990). Utah Code Ann. he to be minors con- persons believed saw recounting precip- the events that Without When Hatzidakis suming alcohol inside. brawl, that Gard- itated the it is clear when he did not have informed Gardiner that time, first he had iner hit the officer the warrant, told the officer search Gardiner It violated section 76-5-102.4. was after physically he not enter and confront- could fight punch during ensuing this court ed the officer. The trial found in- building outside Hatzidakis was hostile and Gardiner’s “demeanor ... arrest. formed Gardiner that was under point, threatening.” Hatzidakis At The record clear Gardiner door, away pushed Gardiner from attempt place him of Hatzidakis’s to aware fell onto table that crashed a card fact, in- arrest. after Hatzidakis under weight. find these factual under his We arrest, him he was under formed evidentiary sup- findings adequate to have that he was not and Gardiner contended Considering port in the record. the circum- again hit Hatzidakis proceeded then at this stances Officer Hatzidakis faced the face. This evidence sufficient point, the trial court did we conclude that under 76-8- support a conviction section finding force used as err points illegality of the pursue matter of law justification for his underlying search as and was “reasonable “not excessive” continuing fight attacking and Hatzidak- Gardiner then view circumstances.” above, as this is not is. noted ground, charged got up from the Hatzidak- ground officer. sufficient to assault is, face, knocking him him and hit in the building. The melee continued out of the also on 76- Gardiner relies sections building, even after Hatzidakis outside articulating -406 2-405 and *8 he was under arrest. informed Gardiner physically resist Hatzidakis’s search. Sec facts, is clear that there is From these it gives person right to tion 76-2-405 a find that sufficient evidence to “prevent” to or “ter use reasonable force peace assaulting a officer was entry minate” another’s unlawful or attack 76-5-102.4 while that officer under section sec upon his “habitation.” That [or her] attempting a in the was to conduct justified using “A person tion states: is investigation and then course of a criminal against another when and to the ex force effect an arrest. reasonably he tent that believes [or she] necessary to or prevent the force is that “acting within the officer Was into entry terminate the unlawful other’s authority peace officer”? We as a upon or .... attack his habitation ample support her] [or think the evidence is (1990)(empha Ann. Utah Code 76-2-405 he The conclusion that was. § trial court’s added). place no sis Because of habitation attempted search later fact that his was here, business, place is a him of involved found to be unlawful does divest Heliczer, appli authority. its terms section 76-2-405 has no his See United cation to our case. F.2d at ruling is that an 76-2-406, quence of the Court’s provides: it
As for section an unconstitu- force, seeking to conduct using other officer justified in “A citi- may physically attack a force, tional search against another when deadly than charge with a zen and then that citizen he reason to the extent she] [or majori- defending himself. The necessary to crime for force is ably believes officer’s con- ty’s holding that interference terminate criminal prevent or “scope authority” is property.” duct was within personal property real with startling. To reach such an eccen- (1990). plainly This Ann. 76-2-406 Utah Code § result, ignores legislative the Court of force to tric permit the use section does to the expressed an amendment with real intent criminal interference prevent a statute, says opts what it assault to follow construed to cover it could be property, and cases, simply ignores premises. the trend of commercial illegal search of explic that the defendant does the constitutional section 76-2-406 rely on. officers. For reasons entitled to itly peace mention was -406, 76-2-405 and to sections precipitated in this case The incident indi legislative silence that that conclude City police undertook a Vernal officer when of law that the actions an intention cates concededly unconstitutional search which a taken within enforcement officers by placing his arm the defendant resisted are not within of their duties course position doorway when bar lawfully category of intrusions The found the officer had no warrant. resisted. the defendant back- officer then shoved and section 76-2- section 76-2-405 Both a force that he was thrown ward with such the version 1973 when 406 were enacted against eight feet a table distance struck down Brad- of section 76-8-305 collapsed. That made in force. section was still shaw charged and convicted with detainment resist arrest or it against officer in viola- of assault legality. regard to its peace officer without (1990) Ann. 76-5-102.4 of Utah Code tion § in- Thus, 76-2-406 to interpreting section in vio- interfering scope peace officers clude lation of Utah Code duty in the of their would furtherance opinion majority The bulk direct conflict bring 76-2-406 into section question addressed to the of whether conclude 76-8-305. We with then-section self- has a common law defense of citizen 76-2- legislature intended section by police offi- action defense unlawful to exclude 406 and section 76-2-405 give any majority cer. The does not of their duties acting in the course officers that the officer initiated weight to the fact operation. from their trial majority the violence. judgment is affirmed. tiptoe issue on the try courts around the ini- finding that the defendant trial court’s J., DURHAM, HALL, C.J., concur. the defendant’s tiated the violence because Apparently cit- “demeanor” was “hostile.” STEWART, (dissenting). Justice must be either meek when their izens and add Judge Bench’s dissent join I police-initiated rights are violated or suffer following comments. is, course, It clear that if that violence. charge citizen opinion allows the State *9 fails, must conviction the other conviction police by a offi- physically attacked who is un- also fail the arrest would be and resisting an unlawful unconsti- cer for lawful, Judge Bench states. as interfering crimes of act tutional with case, Judge police key on a The issue as and assault police with a officer out, points is the State fought Bench whether Although the defendant officer. attack, proved the elements of the crime of assault initial it is the officer’s back after majority pays on a officer. that the officer initiated perfectly clear to the issue and deals with scant attention violence and then arrested defendant conclusory legis- shocking conse- it in a most fashion. fighting back.
577
gives
undisputed
statute
is
that the officer initiated the
history of the assault
lative
provision.
clearly
A
that
guidance
construing
that
first use of force and
force was
to that statute indicates
1987 amendment
excessive.
legislative
an assault on an
intent to make
gives
The Fourth Amendment
a citizen a
is
officer a crime
when the officer
entry
an
refuse to consent to
acting
authority.
her
It is not
within his or
that
search. The assertion of
cannot
duty
enough to
that an officer was on
show
Bustamonte,
a crime.1
be
Schneckloth v.
his duties. Prior to the
performing
218, 233,
2041, 2050,
412
93
36
U.S.
S.Ct.
amendment,
the assault statute read:
(1973);
Municipal
L.Ed.2d 854
Camara
officer,
Any person
assaults a
who
1727,
Court,
523, 530-33,
387 U.S.
87 S.Ct.
knowledge
duty, is
with
that he is on
1731-33,
(1967);
phasis The amendment made clear 1, 4, Theiss, App.3d 28 Ohio 501 N.E.2d being duty” not sufficient: “on 1226, La- generally W. The amended statute now reads: Fave, 1.13(b)(2d ed. Search and Seizure § officer, person
Any 1987). law, who assaults Despite holds peace offi- knowledge that he is a scope that the officer acted cer, acting and when the authority “responded his because he to an officer authority scope within the his as investigate anonymous phone call” to A mis- peace officer, of a class party” “in “loud and was uniform and demeanor. duty responded at the time he to the call.” saying virtually That is tantamount to (1990) (em- Utah Code Ann. 76-5-102.4 § anything officer does is within his au an crime, added). Now, phasis to constitute a thority. against an assault must be directed officer who is “within the reject ap The better-reasoned cases authority.” Appeals, proach. The Idaho Court Wilkerson, 174, 180, 114 Idaho
After Officer Hatzidakis announced his State v.
(Idaho Ct.App.),
hangar
aff'd,
intention
enter the
to check for P.2d
Gardiner,
(1988),
minors,
building,
P.2d 1238
construed
who was
Idaho
phrase “duty of
officer
and that his fa-
a statute which used the
told the
his name
phrase
stated that the
in
building.
ther owned the
Gardiner asked
his office” and
warrant,
“only
if
cludes
those lawful
authorized
Hatzidakis
he had a
replied
public officer. To hold otherwise
that he did not. Gardiner
acts of a
protection
an officer with
then told Hatzidakis he could not enter
would clothe
building
only on his status as
stepped
forward and extended
from resistance based
entry.
render the
his arm to block Hatzidakis’s
No
an officer and would
[balance
An
surplusage.”
mere
physical contact occurred between Gard-
statute]
search
an officer cannot be within
iner and the officer when Gardiner blocked
point,
authority. People
doorway.
At this
the officer
officer’s
Swiercz,
Ill.App.3d
60 Ill.Dec.
shoved Gardiner. The trial court found
(1982),
1, 2,
“perceived”
ac-
432 N.E.2d
held that
that Hatzidakis
Gardiner’s
entry
apartment
blocking
doorway
to be threaten-
an officer’s
into an
with
tion
exigent circum
ing and on that
found that the offi- out a warrant and without
basis
suspect
stances to search for a
was not an
cer’s use of force was reasonable and
required finding wrong;
the fact
“authorized act” which was
excessive. That
LaFave,
(2d
1987).
response
to an il-
Search and
1.13
ed.
1. Gardiner's actions were in
Seizure
Furthermore,
search,
many
legal
cannot be convicted of a
but
of the cases deal with
failing
obey police
officer’s order
unlawful arrest. An
crime for
See, e.g., People
*10
is violative of the United States
invasive as an unlawful arrest.
if that order
Wetzel,
Cal.Rptr.
Wright Georgia,
v.
373 U.S.
11 Cal.3d
Constitution.
291-92,
1240, 1245,
(1974);
Gallagher,
Conn.
S.Ct.
evidence. governmental limitation as a tended of interfer- also convicted is mere- evidence exclusion of power.2 The in violation of Utah ing a lawful arrest with effecting that for means ly one of the (1990), pro- which Code States, v. United limitation. See Weeks vides: 341, L.Ed. 652 383, 58 34 S.Ct. 232 U.S. class B misde- of a A performing a concluding that (1914). By knowledge or the he has meanor if scope the was within clearly illegal search care, should have of reasonable exercise authority, the ma- Hatzidakis’s of Officer seeking knowledge officer is the to be undermines severely jority or detention of a lawful arrest to effect In- searches. unreasonable secure from interferes with or another and himself Constitution, the undermining the stead of by use of force arrest or detention such plain statute’s follow the majority should any weapon. by use of harmony the with meaning, which recognizes principal The State Dick’s Lumber & See Chris Constitution. this section to Gard- difficulty applying 511, Comm’n, 791 v. Tax & Hardware “knowledge requiring phrase iner is (Utah 1990). seeking to effect a peace officer is that a majority offers defen- support the arrest or detention lawful [the argues that scope-of-authority away the or another.” Gardiner explaining dant] lawful, and the State 76-5-102.4 United his arrest was wording of section 241, (2d argu- essentially point oral Heliczer, F.2d conceded States considering the of a ment and asked us to avoid Cir.1967), upheld the conviction which Nevertheless, the arrest. lawfulness of an arrest bystander resisted who affirm majority proceeds to Gardiner’s a citizen’s jury found be lawful without ever under this section conviction Heliczer’s dicta York law. under New confronting question whether right to resist law criticizing the common “seeking Hatzidakis was knew that Officer scope unlawful arrest posi- Gardiner's effect a lawful arrest.” extremely authority are an peace officer’s not law- that the arrest was tion has been away plain explaining weak basis for mind, resisting ful; an un- in his increasing the meaning statute arrest, an act which section 76-8- lawful is “a only if the victim for assault penalty con- penalize. Since 305 does acting within peace officer point, it has not established cedes this from another authority.” remarks Obiter 76-8-305, and Gard- of section violation are factual context in another jurisdiction that section should conviction under iner’s “[ujnambiguous lan- interpret no basis to Hurley, 28 Utah 2d reversed. as to contradict ... so guage statute [a] (reversing a for conviction 501 P.2d Morgan, plain meaning.” Bonham interfering an arrest an officer with 1990); (Utah Johnson v. office). exceeding the duties of his Bd., 770 P.2d Utah State Retirement (Utah 1988). CONCLUSION plain Thus, contradicts by including I hold that the officer was not meaning statute would of the Utah authority” acting “within the “scope of within the officer’s] [a section 76-5-102.4 and purposes conduct power authority” accordingly reverse Gardiner’s con- fourth amend- would of the searches violation I under that section. would also viction ment. Stewart, rule); sionary Mapp The Road to experience British Drawing under from their rule, sought Beyond: Origins, Development to ensure colonial the framers Ohio and general writs of assistance would Exclusionary warrants and Rule in Search and Future government. See place new have no in the Cases, 83 Colum.L.Rev. Seizure Rowe, Ct. App.1991) (explaining development exclu- under section 76-8- his conviction reverse concedes, because, as Gard- the State interfering knowingly
iner was not *13 “seeking to effect a lawful
peace officer fails establish
arrest.” Since statute, either I see
prima facie case under need defenses could
no to consider
apply. hindsight, agree
Finally, I and with Court of majority’s comment published opinion
Appeals should have view, my publication
in this case. essentially
appellate opinions serves two
important purposes: It and dissem- records development of
inates the
law,3 public to monitor it enables appellate judicial quality service.4 coming before some cases hearing appeals as of do not
court de-
present issues that could enhance the law, publica-
velopment the common Appellate greater part of an
tion of the adequate provides decisions
Court’s If a
sampling performance. of Judicial negligible value as
particular case has parties
precedent, the are better served publication greater
dispensing with
delay it necessitates.
HOWE, C.J., Associate does
participate herein.
BENCH, Appeals Judge, Court of sat. INTERNATIONAL,
MORTON
INC., Petitioner,
AUDITING OF the UTAH DIVISION COMMISSION, TAX
STATE
Respondent.
No. 900325.
Supreme Court Utah.
June (rev. Llewellyn, Eisenberg, Law 4. K. The Bramble Bush Nature the Common ed. 3. M. 1950). notes "its search in case violated the fourth amend- Appeals’ ance Court of conclusion that ment. building Officer Hatzidakis's search of