State v. Howell, 782 N.E.2d 1066

State v. Howell

782 N.E.2d 1066

Ind. Ct. App.

2003

Check Treatment

OPINION

BAKER, Judge.

Aрpellant-plaintiff the State of Indiana (the State) appeals the trial court's grant of James V. Howell's motion to dismiss various criminal charges that had been filed against him. Specifically, the State contends that the case should not have been dismissed because although the police officer that arrested Howell might have conducted аn illegal traffic stop, Howell did not have the right to resist the stop by fleeing in his vehicle, driving recklessly and forcibly resisting arrest. Concluding that the State's affidavit established that Howell improperly resisted arrest and drove recklessly, we reverse the trial court's order of dismissal.

FACTS

On August 29, 2001, at approximately 1:17 am., Hammond Police Officer Robert Tichy was on routine patrоl in his marked squad car when he attempted to stop Howell for having a blue neon light on his vehicle that encireled thе license plate. Officer Tichy was of the belief that such a light constituted an infraction. Although Officer Tichy activatеd his emergency lights, Howell did not stop and continued to drive at a normal rate of speed. Officer Tichy then activated his siren, whereupon Howell increased his speed and turned into an alley. Howell was operating his vehicle аt a speed of approximately thirty miles per hour in a ten mile per hour speed zone. Howell eventually stоpped his vehicle and *1067 fled on foot. Following a brief chase, Officer Tichy apprehended Howell Howell рroceeded to resist Officer Tichy's attempts to handcuff him, forcing Officer Tichy to use mace in order to subdue ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍him. As a result of the scuffle, both Officer Tichy and Howell suffered scratches and abrasions. A subsequent check of Howell's driving recоrd revealed that he was a habitual traffic offender.

The State then charged Howell with two counts of Resisting Law Enforcement, 1 a class D felony, Reckless Driving, 2 a class B misdemeanor, Illegal Display of a Blue Light, 3 a class C infraction and Operating a Vehicle As a Habitual Traffic Violator. 4 Thereafter, the State filеd an amended information ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍charging Howell with being a Habitual Offender 5 because he had accumulated convictions for robbery and theft.

Prior to trial, Howell moved to dismiss the charges, alleging that Officer Tichy improperly stopped him bеcause he had not committed any traffic offense. Following a hearing, the trial court granted Howell's motion, cоncluding that the statute prohibiting blue lights on automobiles "is not ... geared at neon lights." Appellant's App. p. T7. The trial court rеasoned that the legislative intent behind the statute "is to regulate overzealous volunteer fire department pеrsonnel from placing light bars on their vehicles, or an assortment of police emergency lights and does not aрply to neon lights placed around a license plate frame." Appellant's Br. p. 10. As a result, all charges agаinst Howell were dismissed and the State now appeals.

DISCUSSION AND DECISION

In reviewing the trial court's grant of a motion to dismiss, we will reverse ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the ruling only when an abuse of discretion occurs. Sivels v. State, 741 N.E.2d 1197, 1202 (Ind.2001). We will reverse only if the decision is clearly against the logiс and effect of the facts and cireumstances. Joymer v. State, 678 N.E.2d 386, 390 (Ind.1997).

Turning to the cireumstances here, we note that the former common law rule permitting an individual to resist an unlawful arrest with reasonable force is no longer the law in Indiana. See Fields v. State, 178 Ind.App. 350, 355, 382 N.E.2d 972, 975-76 (1978) (declaring the common law rule to be "outmoded in our modern society"). We now follow the modern view that "a private citizen may not use force or resist peaceful arrest by one he knows or has good reason to believe is an authorized officer performing his duties, regardless of whether the arrest is illegal in the cireum-stаnces of the occasion." Id. at 977. Our supreme court went on to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍observe that a citizen today may readily find a rеmedy for an unwarranted intrusion by bringing a civil action in the courts against the police officer and governmental unit that invаded his privacy. Id. at 975. Therefore, the general rule has become that a person may not flee from a pоlice officer that orders a person to stop regardless of the lawfulness of the officer's order. Lashley v. State, 745 N.E.2d 254, 261 (Ind.Ct.App.2001), trans. denied. This court has also declared that a private citizen may not use force in resisting a peaceful arrest by an *1068 individual who he knows, or has reason to know, is a police officer performing his duties regardlеss of whether the arrest in question is lawful or unlawful. Shoultz v. State, 735 N.E.2d 818, 823 (Ind.Ct.App.2000), trans. demied. Moreover, our resisting statute does not cоndition the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍commission of the offense upon the enforcement of a lawful order. See Alspach v. State, 755 N.E.2d 209, 211 (Ind.Ct.App.2001), trans. demied.

This being said, the record shows that the affidavit executed by Officer Tichy presented ample probable cause that Howell had committed a number of criminal offenses. After Howell fled from Officer Tichy in his vehicle, Officer Tichy stated in his probable cause affidavit that he continued to speed away and drove his automobile in a reckless manner in an аttempt to avoid capture. Appellant's App. p. 9. Officer Tichy also acknowledged that Howell physicаlly resisted the arrest which caused him to sustain bruises and other abrasions. Appellant's App. p. 9. Thus, regardless of whether the initial stop of Howell was justified, there was ample probable cause that Howell had committed the chargеd offenses. As a result, the trial court's determination that the initial stop may have been unlawful does not prevent the Stаte from pursuing the criminal charges against Howell, Therefore, we conclude that the trial court erred in granting Howell's motion to dismiss.

Reversed and remanded for trial.

RILEY, J., and VAIDIK, J., concur.

Notes

. Ind.Code § 35-44-3-3. Howell - was charged with a class D felony because he used a vehicle to flee from Officer Tichy.

. Ind.Code § 9-21-8-52.

. Ind.Code § 36-8-12-11. This statute provides that "A person who is not a member of a volunteer fire department, may not display a blue light of any size or shape on a motor vehicle."

. Ind.Code § 9-30-10-16.

. Ind.Code § 35-50-2-8.