State v. Gardiner, 890231

Citation814 P.2d 568
Decision Date18 June 1991
Docket NumberNo. 890231,890231
PartiesSTATE of Utah, Plaintiff and Respondent, v. Chad A. GARDINER, Defendant and Petitioner.
CourtSupreme Court of Utah

ZIMMERMAN, Justice:

Defendant Chad Gardiner appeals from a conviction of assaulting a peace officer under section 76-5-102.4 of the Code and a conviction of interfering with a peace officer under section 76-8-305 of the Code. Utah Code Ann. §§ 76-5-102.4, 76-8-305 (1990). These convictions arose out of an incident in which Gardiner refused to permit an officer to conduct a search of the premises where a party was in progress. Gardiner claims that he had a right to forcibly resist the officer's illegal search and the ensuing arrest.

Gardiner's claims on appeal are several. First, he argues that he had a right to resist because in State v. Bradshaw, 541 P.2d 800 (Utah 1975), this court recognized a citizen's common law right to forcibly resist an illegal arrest by a peace officer. Second, he asserts that he could not be guilty of violating section 76-5-102.4 because it only bars the assaulting of a peace officer acting within the scope of his or her authority. He contends that the officer's entry into the building was illegal and, therefore, the officer was not acting within the scope of his authority. Finally, he contends that section 76-2-406 of the Code, a statute permitting the use of force to defend property, gave him the right to resist the officer's search of his property. We disagree with all of Gardiner's contentions and uphold his convictions.

We recite the facts in a light most favorable to the State, the prevailing party below. See State v. Verde, 770 P.2d 116, 117 (Utah 1989); Lamkin v. Lynch, 600 P.2d 530, 531 (Utah 1979); Paull v. Zions First Nat'l Bank, 18 Utah 2d 183, 184, 417 P.2d 759, 760 (1966).

During the early morning hours of April 17, 1988, the Uintah County Sheriff's Department received an anonymous complaint that a loud party was in progress at the Vernal City Airport and that minors were consuming alcohol at that party. At approximately 3 a.m., Deputy Jim Lytle was dispatched to the airport to investigate the complaint. Vernal City Officer Steve Hatzidakis and Reserve Officer Terry Shiner responded to assist Deputy Lytle in his investigation.

The officers located a party at the Dinaland Aviation building. While Officer Hatzidakis was talking to individuals in a vehicle near the building, he noticed that someone was attempting to close a sliding door on the building. Officer Hatzidakis went to the doorway. There, he smelled a strong odor of alcohol and saw several people within the building whom he believed to be minors. He announced his intention to enter the building to check for the presence of minors.

At that point, defendant Chad Gardiner, who was in the building, stepped forward and stated that his father owned the building. Gardiner asked the officer for a search warrant. Upon being told that the officer had no warrant, Gardiner said that Officer Hatzidakis could not enter, stepped within eight to ten inches of the officer at the doorway, and extended his arm to the side to block the door and prevent the officer from entering. Officer Hatzidakis pushed Gardiner, who then fell backward onto a table, which collapsed under him. Gardiner got up, rushed toward Officer Hatzidakis, and punched him in the face. The blow knocked the officer out of the building. Outside the building, a struggle ensued between Gardiner and the three officers. After being informed by Officer Hatzidakis that he was under arrest, Gardiner did not stop fighting but again punched the officer in the face. Gardiner was ultimately subdued and taken to jail.

Gardiner was charged with two counts of assaulting a peace officer, one count of interfering with a peace officer, and one count of intoxication in a private place. The case was heard without a jury by Judge A. Lynn Payne of the Eighth Circuit Court of Uintah County. Judge Payne found Gardiner guilty of one count of assaulting Gardiner appealed his convictions. In an unpublished opinion, the Utah Court of Appeals ruled that the search by Officer Hatzidakis was illegal because there were no exigent circumstances that justified a warrantless search. However, the court went on to say that the legality of the search was not the pivotal issue. Rather, the deciding issue was whether a citizen has the right to forcibly resist a peaceful search by an officer when that search is at some later date determined to be illegal. The court followed a decision from Alaska, Elson v. State, 659 P.2d 1195 (Alaska 1983), and declined to recognize the English common law rule that a citizen does have such a right. Instead, the court of appeals held that one may not resist a search by an officer, even if illegal, "unless [the] defendant can show that the officer was not ... acting pursuant to his [or her] authority, or had used excessive force." State v. Gardiner, No. 880557 (Utah Ct.App.1989). Because defendant had not carried his burden on these issues, the court affirmed his conviction for assaulting a peace officer.

a peace officer and one count of interfering with a peace officer. See Utah Code Ann. §§ 76-5-102.4, 76-8-305 (1990). Gardiner was fined $500 and given a one-year suspended sentence.

Gardiner then petitioned for a rehearing, arguing that the court of appeals' holding was in conflict with this court's decision in State v. Bradshaw, 541 P.2d 800 (Utah 1975). In Bradshaw, this court held that a Utah statute making it unlawful for a citizen to forcibly resist an illegal arrest was written so as to make it unconstitutionally vague. Bradshaw went on to say in dicta that if the legislature, in passing the statute in question, had intended to punish a citizen who refused to "willingly submit to an unlawful arrest," then the statute would also violate both the state and federal constitutions. Id. at 801. This dicta, claimed Gardiner, plainly recognized the English common law right to resist an unlawful arrest; indeed, it constitutionalized it. Because an illegal search is directly analogous to an illegal arrest, Gardiner argued, Bradshaw governed the present case and the court of appeals' holding was in direct conflict with Bradshaw. The court of appeals denied Gardiner's petition without comment. 1 This court then granted Gardiner's writ of certiorari.

In passing on Gardiner's claims, we first note that the court of appeals affirmed his conviction for assaulting a peace officer under section 76-5-102.4 of the Code, but did not mention his conviction for interfering with a peace officer under section 76-8-305 of the Code. Our review of Gardiner's brief in the court of appeals makes it clear that he appealed from both convictions and that his challenges to both were virtually identical. Therefore, we presume that the court of appeals intended its ruling to apply to both convictions. We will address both convictions in our opinion.

We also note our acceptance of the court of appeals' conclusion that Officer Hatzidakis's search of the building was illegal. This court has held that absent one of a narrow category of exigent circumstances, warrantless searches are "per se unreasonable under the fourth amendment." State v. Ashe, 745 P.2d 1255, 1258 (Utah 1987); see also State v. Christensen, 676 P.2d 408, 411 (Utah 1984). That principle has as much, if not more, force under the Utah Constitution. See State v. Larocco, 794 P.2d 460, 466-68 (Utah 1990). Therefore, this case squarely presents the question of whether Gardiner had a common law or statutory right to resist what was later determined to be an illegal search. Gardiner makes three separate arguments attacking his convictions, but all are really variations on a theme.

Gardiner's first contention is that our decision in Bradshaw adopted the English common law rule that a person can forcibly resist an unlawful arrest and, therefore, that he had the right to forcibly resist Officer Hatzidakis's search of Dinaland Aviation. Response to this argument requires a rather detailed discussion of Bradshaw.

The defendant in Bradshaw was charged with resisting arrest in violation of what was then section 76-8-305 of the Code. See Utah Code Ann. § 76-8-305 (Supp.1973). That statute read: "A person is guilty of a class B misdemeanor when he [or she] intentionally interferes with a person recognized to be a law enforcement official seeking to effect an arrest or detention of himself [or herself] or another regardless of whether there is a legal basis for the arrest." Id. The defendant challenged the constitutionality of the statute, claiming that it violated the search and seizure clause of the Utah Constitution. See Utah Const. art. I, § 14. Although the opinion is not clear on this point, he apparently claimed that an illegal arrest amounted to an unreasonable seizure.

The majority opinion, written by Justice Tuckett, joined by Justice Maughan, and separately concurred in by Justice Henriod, did not dispose of the case on the defendant's contention, but instead struck the statute down as invalid on vagueness grounds. The court reasoned that terms such as "regardless of whether there is a legal basis for the arrest" and "interferes" could have a number of meanings and interpretations. On that basis, this court concluded that the statute "fail[ed] to inform an ordinary citizen who is seeking to obey the laws as to the conduct sought to be proscribed." Bradshaw, 541 P.2d at 802.

Although the Bradshaw majority did not decide the case on the basis that a person had a right, constitutional or otherwise, to use force to resist an illegal arrest, it did reach this issue in dictum. Justice Tuckett's opinion stated:

If the intention of the legislature was to penalize a law-abiding citizen by incarceration because he ...

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