Ellison v. State

• Decision Date: 27 December 1979
• Citation: 410 A.2d 519
• Parties: Clyde ELLISON, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Delaware Superior Court

Page 519

410 A.2d 519

Clyde ELLISON, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Superior Court of Delaware, New Castle County.

Submitted Sept. 6, 1979.

Decided Dec. 27, 1979.

Upon appeal from the Court of Common Pleas. Affirmed.

Richard E. Fairbanks, Jr., Asst. Public Defender, Wilmington, for defendant below, appellant.

John T. Gandolfo, Jr., Dept. of Justice, Wilmington, for plaintiff below, appellee.

LONGOBARDI, Judge.

Clyde Ellison, Jr., Appellant here and Defendant below, was tried without a jury in the Court of Common Pleas on January 8, 1978. Appellant was charged with operating a motor vehicle while his license was suspended, displaying a fictitious registration card and license plate and operating an unregistered motor vehicle. Appellant was also charged with resisting arrest in violation of 11 Del.C. 1257.

At trial, Appellant moved to suppress evidence obtained as a result of an allegedly unconstitutional stop by the arresting officer. The trial court reserved decision on the four motor vehicle offenses pending a ruling on Appellant's suppression motion. The trial court entered a verdict of guilty on the resisting arrest charge. Appellant's suppression motion was granted as to all evidence relating to the four motor vehicle offenses and, consequently, he was found not guilty on these charges.

On January 26, 1978, Appellant moved for a new trial on the charge of resisting arrest. The motion was denied February 15, 1978. The following day, Appellant was sentenced to pay the costs of prosecution and to serve one year imprisonment with a credit for forty-eight days already served. On February 27, 1978, Appellant filed the instant appeal in the Superior Court from his conviction of resisting arrest. ¹ The facts as found by the trial court are not disputed by the parties in this appeal and these findings do not appear on the record to be clearly erroneous. ² Therefore, the trial court's findings of fact are accepted in their entirety.

Late in the evening of December 31, 1977, a State Police Officer observed Appellant operating an automobile on a public highway. The officer attempted to stop Appellant's vehicle but Appellant pulled into a nearby motel parking lot and parked his vehicle. The officer, who was following immediately behind the Appellant, parked his vehicle next to Appellant's. The trial court found that as of that moment, the officer did not have probable cause or a reasonable suspicion that the Appellant was or had been involved in any criminal activity. ³ The trial court consequently held the stop unconstitutional under the rationale of State v. Prouse, Del.Supr., 382 A.2d 1359 (1978), Aff'd, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

After following Appellant into the parking lot, the officer approached Appellant who had exited his vehicle and was standing next to it. The officer requested Appellant's driver's license and automobile registration certificate. Appellant admitted having no valid driver's license, whereupon the officer placed him under arrest by stating, "Okay, you're under arrest for driving with no valid license." Trial Transcript 7. Appellant was not physically restrained by the arresting officer at that time but was ordered to stand by the police car door on the passenger's side. The officer then walked around to the driver's side of his car to radio his dispatcher and secure his vehicle. While the officer was thus engaged, Appellant suddenly ran away from the police car and into a nearby motel room. The arresting officer radioed for reinforcements and, when two other police officers arrived at the scene, the three of them apprehended and subsequently charged the Appellant with resisting arrest and the four motor vehicle offenses.

On this appeal, Appellant asserts three possible errors of law, any one of which would require reversal of the judgment of conviction. First, he claims that under the common law of this State, he has the right to resist an unlawful arrest in a nonforcible manner. Second, even if such right does not exist as a matter of state law, Appellant claims that the Fourth Amendment to the United States Constitution gives him the right to nonforcibly resist an unlawful arrest. Third, Appellant claims that all evidence of his flight was obtained as a direct result of an unconstitutional stop by the police and must therefore be suppressed under the Fourth Amendment's "exclusionary rule." If this evidence is suppressed, there remains no other evidence upon which his conviction for resisting arrest could be sustained. These claims, all of which were considered and rejected below, will be addressed seriatim.

I

Two statutory provisions must be considered in addressing Appellant's state law claim. The first provision, 11 Del.C. 1257, creates the substantive offense of which Appellant was convicted:

A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a peace officer from effecting an arrest or detention of himself or another person or intentionally flees from a peace officer who is effecting an arrest.

Resisting arrest is a class A misdemeanor. The second provision, 11 Del.C. 464(d), a subparagraph to a Section entitled "(Justification) Use of force in self-protection," provides:

The use of force is not justifiable under this section to resist an arrest which the defendant knows or should know is being made by a peace officer, whether or not the arrest is lawful.

Appellant urges upon this Court a construction of these provisions that would authorize his conduct in fleeing from the arresting officer by recognizing a narrowly circumscribed right to resist an unlawful arrest. In effect, Appellant argues that the right he asserts in this case, i. e., to nonforcibly resist an unlawful arrest, existed at common law at the time the present Criminal Code was adopted and has not been eliminated by the above cited provisions.

In order to establish the first part of the above-stated argument, Appellant recognizes that he must somehow distinguish the holding in Claire v. State, Del.Supr., 294 A.2d 836 (1972). In Claire the Supreme Court had occasion to interpret a provision which was then 11 Del.C. 1905, 48 Del.Laws C. 304, § 5343-E, and provided as follows:

If a person has reasonable ground to believe that he is being arrested by a peace officer, he shall refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for arrest.

While this provision, which was repealed when the Delaware Criminal Code of 1973 became effective, explicitly refers only to use of force or any weapon in resisting an unlawful arrest, the Supreme Court stated, "We think the section . . . abolishes the common law right to resist an illegal arrest." 294 A.2d at 837. This holding did not recognize any distinction between forcible and nonforcible resistance. Additionally, other courts which have taken note of this law since the Claire decision have not recognized any such distinction. See United States ex rel. Kilheffer v. Plowfield, E.D.Pa., 409 F.Supp. 677, 680 n. 5 and accompanying text (1976); United States ex rel. Horelick v. Criminal Court, S.D.N.Y., 366 F.Supp. 1140, 1151 n. 12 and accompanying text (1973), rev'd on other grounds, 2d Cir., 507 F.2d 37 (1974).

If the above holding in Claire, which has not explicitly been overruled or modified by the Delaware Supreme Court, remains viable, then Appellant's state law claim of a limited right to resist an unlawful arrest must be rejected. Appellant argues that the Claire holding on this issue is no longer good law since the provision interpreted in that case was repealed in 1973 at the same time the present 11 Del.C. 1257 and 464(d) became effective. While it is true that the former § 1905 was repealed, this Court believes that provision is substantially identical to the present 464(d), ⁴ thus making the Supreme Court's holding in Claire equally applicable to an interpretation of § 464(d). Therefore, on the basis of Claire and § 464(d), this Court rejects Appellant's state law claim. Alternatively, the Court finds that Appellant's act of fleeing from the arresting officer was an act of force within the meaning of § 464(d) and, therefore, the illegality of his arrest cannot be asserted in justification of his conduct following the arrest. Accord, People v. Carroll, 133 Ill.App.2d 78, 272 N.E.2d 822 (1971); Contra, Marshall v. State, Fla.App., 354 So.2d 107 (1978), Cert. denied, 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978).

Although either of the above holdings is sufficient to warrant rejection of Appellant's state law claim, there is a third basis upon which this Court's decision rests; that is, the clear language of § 1257. That provision on its face prohibits precisely the type of conduct in which Appellant engaged. "A person is guilty of resisting arrest when he . . . intentionally flees from a peace officer who is effecting an arrest." 11 Del.C. 1257. Appellant argues, without citing any specific authority, that the Legislature intended this provision to apply only where the underlying arrest was lawful. Therefore, this argument must stand or fall on the construction given the word "arrest" in § 1257 since it is not explicitly modified by the word "lawful" therein.

The word "arrest" is not defined in the Delaware Criminal Code. Therefore, 11 Del.C. 221(c) requires the Court to give this word "its commonly accepted meaning . . . ." The Random House Dictionary of the English Language 83 (unabridged ed. 1967) defines "arrest" as "the taking of a person into legal custody, as by officers of the law," and defines "under arrest" as "in custody of the police or other legal authorities." The core of these definitions is the notion that a person's freedom of movement has been restricted by a law enforcement official. It imports a "seizure" which impinges upon the citizen's right to movement...