People v. Hess

Decision Date04 September 1984
Docket NumberNo. 83SA152,83SA152
Citation687 P.2d 443
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robin Merrill HESS, Defendant-Appellee.
CourtColorado Supreme Court

James F. Smith, Dist. Atty., Kathryn J. Aragon, Emil A. Rinaldi, Deputy Dist. Attys., Brighton, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Jody Sorenson Theis, Matthew L. Goldsmith, Deputy State Public Defenders, Denver, for defendant-appellee.

ROVIRA, Justice.

Robin M. Hess, defendant, is charged with second-degree assault on a police officer. 1 He filed a motion to dismiss or, in the alternative, to suppress evidence, statements and observations of police officers, claiming that "there was no basis for the stop of the Defendant, no probable cause for such conduct by the police and was [sic] in violation of C.R.S. § 25-1-310." In this appeal, the People challenge the district court's order dismissing the case after it had determined that the police had no valid reason to stop the defendant. We reverse.


At the hearing on the defendant's motion, Officer Joe Marino of the Commerce City Police Department testified that on July 24, 1982, at approximately 1:30 a.m., he received a radio dispatch informing him of a disturbance in progress in the 5400 block of East 52nd Avenue. Upon arriving at that location in a marked police car, he saw two men and a woman standing in the middle of East 52nd Avenue. They were arguing heatedly and did not make way for the police vehicle. Marino, who was in uniform, got out of his car and approached the three individuals. He later testified that the defendant and the other man "had obviously been [in] a fight. Their clothes were messed up. I could tell they had been drinking. I could smell the odor of an alcoholic beverage." From what Marino could tell, there had been a fight at a party and the three were arguing about whether to return to the house in question.

Marino asked for identification, but the three refused to cooperate. They told him he had no business being there and no right to be harassing them. According to the two men, they were "taking care of the problem themselves." Marino testified that "[a]t the time I didn't really know what the problem was other than we had gotten a call into that area for a disturbance." Marino advised the three that he had received a disturbance call and that he wanted to know what they were doing in the middle of the street arguing. He testified that his intention was "to find out who they were, what they were doing and if they were capable enough of just going home on their own." Eventually, the other man and the woman identified themselves as the Tallents. The defendant, meanwhile, after repeated refusals to tell Marino who he was, finally gave the officer his name and stated that his identification was in his van.

As the argument continued, Officer Marino determined that the defendant and Mr. Tallent were intoxicated. He advised them that he was going to take them to a detoxification center for the night. 2 Marino asked Officer Drake, who had arrived on the scene by this time, to help him place the defendant and Tallent in protective custody for "detox hold." When Drake attempted to put handcuffs on the defendant, however, a fight ensued. The defendant broke loose and began hitting Drake just as Officer Compton arrived to provide assistance. Marino saw the defendant strike both Drake and Compton with his hands and feet for several minutes. As a result, Drake suffered a broken ankle. The fight ended when Marino finally pulled the defendant "off the top of Officer Drake."

During the cross-examination of Officer Marino, the trial court suddenly decided to dismiss the case. It asked the People: "What I want to know ... is how do you justify what the officer has done to this point because as I read the cases, there's no justification for ... the officer's stop of these people ...." When the People attempted to respond, the court stated that, in its view, the only reason Officer Marino approached the defendant and his companions was because they were arguing in the middle of the street at an early hour in the morning. If he had not approached them, the court reasoned, there would have been no argument directed at him and no fight involving the other officers. The court concluded:

"These people were arguing. That's not a crime. You said you had no reason to suspect them of any crime at the time that you drove up there. I'm going to grant the motion to dismiss. I can't find that this passes muster on any of the cases that the Court is aware of. The testimony of the other two officers would not--which I will assume is to exactly the same effect except to further delineate the injuries that those officers sustained. None of that, none of what occurred after this arrest is--or attempted arrest or stop is sufficient to justify the stop and arrest itself."

On appeal, the People argue that the officer was justified in approaching the defendant and initiating an investigation. They contend that the defendant's actions, along with those of the other two individuals, created a reasonable suspicion of disorderly conduct, 3 especially in light of the disturbance call directing Marino to that particular block. His reasonable suspicion therefore justified a brief intrusion into the defendant's privacy for the limited purpose of asking him who he was and what he was doing. The defendant, in response, contends that Officer Marino did not have a reasonable suspicion that he and his companions were involved in any criminal conduct. As a result, the stop was illegal, and the assault on the police officers, which led to charges against the defendant, was the product of unlawful police activity.

Because the trial court terminated the hearing before the first witness completed his testimony, we are faced with an incomplete record and, as a result, are unable to determine whether there was a proper investigatory stop of the defendant. For the reasons expressed in Part II, we conclude that the trial court erred in dismissing the case. The defendant's motion, however, was phrased in the alternative as a motion to dismiss or to suppress. We therefore remand for a hearing on the defendant's motion to suppress, at which time, in light of our ruling in Part II, the People can present additional testimony and the defendant, if he so chooses, can present his version of what happened on July 24, 1982.


The trial court focused exclusively on the propriety of the stop in deciding to dismiss the case against the defendant. It did not address the sequence of events following the stop. In our opinion, the issue which should have been addressed by counsel and by the trial court is not whether the officer was justified in initiating an investigation or whether the stop was legal, but whether dismissal is an appropriate remedy where the defendant uses force in resisting what may arguably be an unlawful arrest or detention. Two officers were injured in the fight that occurred in this case. The potential for further violence and injury was certainly present. Impliedly, the trial court ruled that the defendant's assault on the officers was somehow irrelevant because the initial stop was unlawful. We disagree. Even if the stop or the taking into protective custody was unlawful, we conclude that the defendant had no right to resist an arrest and therefore dismissal was an inappropriate remedy.

Under the common law, an unlawful arrest could be resisted by using no more force than was reasonably necessary. See, e.g., United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); John Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 (1900); Brown v. United States, 159 U.S. 100, 16 S.Ct. 29, 40 L.Ed. 90 (1895). The basis for the rule was that a person was entitled to use reasonable force to prevent an unlawful invasion of his physical integrity and personal liberty. Miller v. State, 462 P.2d 421 (Alaska 1969). As one commentator has stated:

"[The rule] was developed largely during a period when most arrests were made by private citizens, when bail for felonies was usually unattainable, and when years might pass before the royal judges arrived for a jail delivery. Further, conditions in English jails were then such that a prisoner had an excellent chance of dying of disease before trial."

Warner, The Uniform Arrest Act, 28 Va.L.Rev. 315, 315 (1942). The rule has been subject to substantial criticism, and both the Uniform Arrest Act 4 and the Model Penal Code (MPC) 5 recommend its abolition when the defendant "knows" or "reasonably believes" that the arrest is being made by a police officer.

The common law rule has been abrogated in Colorado. Section 18-8-103, 8 C.R.S. (1978 & 1983 Supp.), provides:

"Resisting arrest. (1) A person commits resisting arrest if he knowingly prevents or attempts to prevent a peace officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:

(a) Using or threatening to use physical force or violence against the peace officer or another; or

(b) Using any other means which creates a substantial risk of causing bodily injury to the peace officer or another.

(2) It is no defense to a prosecution under this section that the peace officer was attempting to make an arrest which in fact was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense. A peace officer acts 'under color of his official authority' when, in the regular course of assigned duties, he is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made by him.

(3) The term 'peace officer' as used in this section ... means a peace officer...

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  • State v. Gardiner, 890231
    • United States
    • Utah Supreme Court
    • June 18, 1991
    ...has been subjected to extensive criticism. See, e.g., State v. Hatton, 116 Ariz. 142, 147, 568 P.2d 1040, 1045 (1977); People v. Hess, 687 P.2d 443, 447 (Colo.1984); Warner at 330-31. The criticism of the self-help doctrine is based on the fact, noted by Justice Ellett's dissent, that the d......
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    ...penitentiary was effected in accordance with the applicable statute was properly omitted from the jury instructions). Accord People v. Hess, 687 P.2d 443 (Colo.1984). The People argue that these cases dictate a result contrary to our holding today. We disagree. The possible consequences pre......
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    • May 29, 2008
    ...551, 555 (Iowa 1995) ("Even though an initial arrest is unlawful, a defendant has no right to resist the arrest."); People v. Hess, 687 P.2d 443, 445 (Colo. 1984) (en banc) ("Even if the stop or the taking into protective custody was unlawful, we conclude that the defendant had no right to ......
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    • April 27, 1995
    ...good faith execution of their duties with respect to the warrant. For all they and Murrell knew, the warrant was valid. In People v. Hess, 687 P.2d 443 (Colo.1984), the court held that even if an arrest is unlawful, a defendant has no right to resist where the officer is acting under the co......
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