Mickelson v. State, 93-195

• Decision Date: 22 November 1994
• Docket Number: No. 93-195,93-195
• Citation: 886 P.2d 247
• Parties: Matthew A. MICKELSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 247

886 P.2d 247

Matthew A. MICKELSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 93-195.

Supreme Court of Wyoming.

Nov. 22, 1994.

Rehearing Granted Dec. 21, 1994.

Robert T. Moxley of Gage & Moxley, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., and Mark T. Moran, Asst. Atty. Gen., for appellee.

Before GOLDEN, C.J., and THOMAS, CARDINE, ^* MACY and TAYLOR, JJ.

CARDINE, Justice, Retired.

Matthew A. Mickelson (Mickelson) appeals his conviction for misdemeanor interference with a peace officer. Mickelson was charged and convicted of the offense for refusing to allow police entry into a bar after hours for the purpose of checking for violations of the liquor laws. Because there were not reasonable grounds to demand entry pursuant to the liquor laws We reverse.

Mickelson raises six issues:

I. Did the trial court commit error of law in its interpretation of the law of arrest?

II. Did the trial court commit error of law in its interpretation of the law of search and seizure?

III. Did the trial court commit error of law in its interpretation of the statutory right of police officers to make warrantless regulatory inspections of locked business premises?

IV. Did the county court commit error of law in binding over the case in the absence of evidence sufficient to sustain a probable cause finding on an essential element?

V. Did the trial court commit error of law in allowing the prosecution to pursue theories possibly inconsistent with the verified information, and in variance to the preliminary hearing showing?

VI. [Was] the partially probationary sentence characterized by abuse of discretion in the pronouncement of terms of probation?

The State condenses the issues to three:

I. Probable cause existed to arrest appellant and sufficient evidence existed to support his conviction for misdemeanor interference with a peace officer.

II. Charges of interference with a peace officer remained the same before and after the preliminary hearing.

III. Appellant was properly sentenced by the district court.

FACTS

Early on the morning of January 7, 1993, Officer Michael Ernst of the Laramie Police Department was on routine patrol in downtown Laramie. At 2:37 a.m. Officer Ernst was driving past the Fireside Bar and Lounge (the bar) when he noticed two men playing pool inside. Officer Ernst became suspicious because liquor establishments are supposed to stop serving at 2 a.m. and customers have to vacate the dispensing room by 2:30 a.m. Officer Ernst was also concerned because he could not see the bartender inside the bar, although her car was parked outside.

Officer Ernst parked across the street where he could observe the two pool players. The pool table room is not the dispensing room. Officer Foreman arrived shortly thereafter and joined Officer Ernst in the surveillance. After watching for six or seven minutes, the lights went out in the bar. Officer Foreman, who had been using binoculars, reported that the pool players had apparently noticed the police just before the lights went out.

The officers decided to wait and see if anyone would exit the bar. When no one exited, the officers decided to check the situation out. As they approached the bar, Officer Foreman noticed a figure trying to hide in the bar. At that point Officer Ernst called for backup.

While searching the interior of the bar through a window with their flashlights, Mickelson appeared inside and approached a window. Officer Ernst informed Mickelson that the police wanted to enter the bar to make sure everything was all right. Mickelson refused to unlock the door, and he began pacing around inside while cursing the officers, telling them to get a warrant.

As other officers began to arrive at the scene, Officer Ernst noticed an individual, later identified as Daniel Peck, standing inside, smiling and holding a pool cue. Also, at about this time, the female bartender came into view; and she began yelling at Mickelson to open the door. Mickelson all the while was continuing with his profane tirade.

Officer Ernst concluded that they would not be able to get Mickelson to open the door, so he had police dispatch contact the owner of the bar, Mickelson's mother (Mrs. Mickelson). Mrs. Mickelson spoke with the bartender and her son on the phone.

Shortly thereafter Mickelson apparently decided that it would be all right for one of the officers to enter the bar. Mickelson unlocked the door with the intention of letting only Officer Reggie Prahl inside. However As soon as Officer Ernst entered the bar, Mickelson swore at him and tried to push him out of the bar. Mickelson did not want Officer Ernst inside and never gave permission to Ernst to enter. Apparently there had been several prior disagreeable incidents between Officer Ernst and members of the Mickelson family. Mickelson testified that he was fearful of Officer Ernst. At that point, Officer Ernst attempted to arrest Mickelson for interference for his refusal to let the officers into the bar. A melee ensued, and it took three officers and an electric "stun gun" to finally subdue Mickelson. At the same time it took two officers wielding batons to subdue Peck, who attempted to come to Mickelson's aid.

Officer Ernst testified that he did not want her entering the bar alone in that volatile situation, so he and Officer James Rigdon followed her inside.

Mickelson was charged with felony interference with a peace officer. A jury returned a verdict of guilty on the lesser included offense of misdemeanor interference with a peace officer. The trial judge sentenced Mickelson to 90 days in jail, a $1,000 fine, and nine months probation, one term of which was that Mickelson could not work in an establishment whose main source of income was the sale of alcohol. Mickelson appeals his conviction and that part of his sentence which limits his employment.

DISCUSSION

Mickelson was convicted of misdemeanor interference with a peace officer pursuant to W.S. 6-5-204(a) (1988), which provides:

(a) A person commits a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000), or both, if he knowingly obstructs, impedes or interferes with or resists arrest by a peace officer while engaged in the lawful performance of his official duties.

(Emphasis added.) Mickelson contends that the police were not "engaged in the lawful performance" of their duties because their entry into the bar was unlawful. Mickelson argues that neither the search and seizure standard of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) or Title 12 of the Wyoming Statutes (the liquor laws) provide a sufficient legal basis for an after-hours inspection of a liquor establishment.

The State counters with W.S. 12-2-304(c) (1986), which provides:

(c) If any licensee refuses to permit the entry of an agent of the [liquor] commission to his place of business or storage place for the purpose of inspection, his license may be revoked as provided by law. Entry for purposes of inspection is authorized only during open business hours unless it is in the presence of the licensee or his duly authorized representative or unless the officer making entry does so under court order or has reasonable grounds to believe that evidence of any violation of this title is within the place to be entered.

(Emphasis added.) The State argues that, given the circumstances, the police had reasonable grounds to believe that a liquor violation may have been occurring in the bar.

We begin our analysis with the grounds cited by the police to support their decision to enter the bar. The police entry into the bar was based on suspicions which were raised by the circumstances: (1) they feared the bartender may have been the victim of domestic violence; (2) there may have been a robbery in progress; (3) minors may have been present; and (4) non-employees may still have been in the bar. The question we must answer is whether these suspicions gave the officers "reasonable grounds" to enter the bar after hours.

The place we begin is with the language of the statute, W.S. 12-2-304(c). The statute's language plainly authorizes entry after hours only when an officer has reasonable grounds to believe that evidence of a violation of "this title" is occurring inside the place to be entered. The phrase, "this title," refers to Title 12 of the liquor laws since that is the title in which the statute appears. Thus, for purposes of entering a liquor establishment after hours under W.S. 12-2-304(c), only violations of Title 12 can be the basis of an officer's reasonable grounds.

Going back to the police officer's stated grounds for entering the bar in this case, we find that only two of the grounds are relevant to our inquiry under W.S. 12-2-304(c): Title 12 prohibits minors from entering bars, W.S. 12-5-203 (1986), and it also forbids non-employees from remaining in the dispensing room after hours, W.S. 12-5-101(a) (1986). Whether a robbery or domestic violence was occurring is irrelevant to an inquiry under W.S. 12-2-304(c) because they are not violations of Title 12.

Next, we must...