State v. Bradshaw

• Decision Date: 16 October 1975
• Docket Number: No. 14060,14060
• Citation: 541 P.2d 800
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Richard Allen BRADSHAW, Defendant and Appellant.
• Court: Utah Supreme Court

Page 800

541 P.2d 800

The STATE of Utah, Plaintiff and Respondent, v. Richard Allen BRADSHAW, Defendant and Appellant.

No. 14060.

Supreme Court of Utah.

Oct. 16, 1975.

Michael W. Park, Cedar City, for defendant-appellant.

Vernon B. Romney, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, John O. Christiansen, Beaver County Atty., Beaver, for plaintiff-respondent.

TUCKETT, Justice:

After a trial de novo in the district court, defendant was found guilty of violating Sec. 76--8--305, U.C.A.1953, as amended, which reads as follows:

A person is guilty of a class B misdemeanor when he intentionally interferes with a person recognized to be a law enforcement official seeking to effect an arrest or detention of himself or another regardless of whether there is a legal basis for the arrest.

The defendant was sentenced to serve six months in the county jail. From the verdict and sentence the defendant has appealed claiming that the statute above referred to is invalid on constitutional grounds.

The complainant is a policeman of Milford City, Beaver County, Utah, who observed the defendant driving an automobile on the streets of that city. The officer followed the defendant to a service station where he informed the defendant that he was going to issue the defendant a citation for driving while his driver's license was suspended. After the defendant had completed the purchase of gasoline he drove away from the service station a short distance to a hotel where he resided. The officer followed the defendant in a patrol car with the siren going. At the hotel, the officer informed the defendant that he was under arrest for resisting arrest, at which time the officer pulled his revolver from the holster. The defendant tapped the officer on the chest and told the officer that he did not the 'guts' to shoot, whereupon he left the scene and entered the hotel. At the service station where the officer first accosted the defendant, the officer did not ask the defendant to produce a driver's license. The accusation that the defendant was operating an automobile during suspension was untrue, and the defendant did in fact have a valid driver's license.

It is doubtful whether or not the record supports the conviction of the defendant inasmuch as the officer made no effort to take custody of the defendant, and it is doubtful whether or not the act of the defendant in simply ignoring the officer is an interference with him. On appeal we are only concerned, however, with the defendant's challenge to the statute. In passing we point out that the officer accused the defendant of violation of the Motor Vehicle Code, and the provisions of that code should have been followed by the officer in dealing with the purported violation. The provisions of Sec. 41--6--166, U.C.A.1953, are controlling in situations similar to the one herein. A pertinent part of that section is as follows:

Whenever any person is arrested for any violation of this act punishable as a misdemeanor, the arrested person shall be immediately taken before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of such offense and is nearest or most accessible with reference to the place where said arrest is made, in any of the following cases:

(1) When a person arrested demands an immediate appearance before a magistrate.

(4) In any other event when the person arrested refuses to give his written promise to appear in court as hereinafter provided, or when in the discretion of the arresting officer, a written promise to appear is insufficient.

On appeal the defendant contends that the statute under which he was charged and convicted is invalid in view of the provisions. of Article I, Section 14, of the Utah Constitution, which reads as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized.

While the particular problem raised has not been before this court, the language of the Utah Constitution was taken verbatim from the language of the Fourth Amendment to the Constitution of the United States. The United States Supreme Court in dealing with the particular problem in the case of Terry v. Ohio, ¹ at page 16 of the U.S. Reports, 88 S.Ct. at page 1877 had this to say: 'It is quite plain that the Fourth Amendment covers 'seizures' of the person which do not eventuate in a trip to the station house and prosecutin for crime--'arrests' in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person.' That case went on to hold that arrests without a warrant may only be made upon probable cause. Other decisions of the U.S. Supreme Court are to the same effect. ²

The language of the particular statute we are here dealing with is undoubtedly subject to the constitutional challenge of vagueness. That part of the statute 'regardless of whether there is a legal basis for the arrest' may be subject to various meanings and interpretations. If the intention of the legislature was to penalize a law-abiding citizen by incarceration because he did not willingly submit to an unlawful arrest, a statute authorizing the same is in violation of both the Utah and United States Constitutions as above referred to in that it permits and authorizes an arrest without probable cause and without lawful basis for the arrest. Likewise the word 'interferes' as used in the statute without further definition or elaboration may mean any protest or verbal remonstration with an officer as well as the employment of physical force to avoid an arrest. We are of the opinion that the language of the statute as above pointed out fails to inform an ordinary citizen who is seeking to obey the laws as to the conduct sought to be proscribed. The statute in the particulars above referred to is in violation of the Constitution of this State and the United States and therefore invalid.

This matter is reversed and remanded to the district court to dismiss the complaint.

MAUGHAN, J., concurs.

HENRIOD, Chief Justice (concurring).

I concur, the while conceding that this may be a close case, and that the arguments of the dissents about law and order and the integrity of the constabulary, are peals of optimism for a desired socio-political community. Nonetheless, I am convinced that they have neglected the liberty bell, whose chimes presumably reach the ears not only of the shackler but the shacklee, and presumably reflect each's constitutional prerogative of equality,--the hallmark of which is reasonableness. I take it that any set of circumstances that outdistances such sounds might be said to constitute a journey out of the realm of constitutionality as we understand it.

In this case the officer in the first instance said he was going to issue the defendant a citation for driving while his license was suspended. He did not arrest him, or threaten him with an arrest. Millions of citations are issued daily without an arrest. The defendant did not object to a citation, nor did he resist an arrest at that time, but drove away a short distance followed by the officer, who arrested him, claiming he resisted arrest,--not borne out by the facts. ¹

The confrontation here was attended by the officer drawing his pistol,--necessary, perhaps, in a television scenario, but hardly under the circumstances of this case. True it is, as the dissent urges, that the circumstances of a case may have nothing to do with the constitutionality of a statute,--but they may have everything to do with the question of unconstitutionality of a statute applicable to the facts and basic issue here. They had a lot to do with Hitlerism, and in my opinion, the subject statute conceivably may be knocking at the door of some such eventuality. In such case I differ with my dissenting learned colleagues to the effect that the prevailing presumption is in favor of constitutionality justifying a six-month stretch in jail. In my book, where there is a statute that sanctions an arrest of a citizen by a 'recognized' law enforcement officer, popularly looked upon as a person in a blue, brass-buttoned suit, ornamented with a silver star over his heart (but who may be an imposter in rented garb), which citizen is minding his own business, as here, where the non-interference was non-violent but simply by driving away, 'regardless of whether there is a legal basis for the arrest or not, as was the case here, just has to be unconstitutional. In such case, the presumption in favor of constitutionality successfully is rebutted, and as generally is the rule, disappears, and the presumption of innocence that always attends a defendant, destroys the former, the latter to persist. Facts well may be instrumental in its persistence.

The dissents say there is no constitutional question here since there is no search and seizure problem involved. The main opinion points to Terry v. Ohio ² and other authorities ³ that seem to disagree,--which authorities have my preference over such unsupported generality.

I respectfully disagree with the gratuity in one of the dissents to the effect that 'Nowhere in the statute can it be found that an unreasonable arrest is permitted or encouraged.' I suggest the subject statute both permits and encourages an unreasonable--and I think unconstitutional--arrest when it says it is unlawful to interfere with a 'law enforcement official,' ⁴ who tries to make an arrest 'whether there is a legal basis for the arrest' or not. In other words, a peaceful citizen is forced by legislation to become his own jail bait if he 'interferes' ⁵ with a law enforcement official making an arrest, no matter...