State v. Latimer, 56247

• Decision Date: 20 September 1984
• Docket Number: No. 56247,56247
• Citation: 687 P.2d 648,9 Kan.App.2d 728
• Parties: STATE of Kansas, Appellee, v. Steven K. LATIMER, Appellant.
• Court: Kansas Court of Appeals

Page 648

687 P.2d 648

9 Kan.App.2d 728

STATE of Kansas, Appellee, v. Steven K. LATIMER, Appellant.

No. 56247.

Court of Appeals of Kansas.

Sept. 20, 1984.

Syllabus by the Court

1. K.S.A. 22-2401 provides that a law enforcement officer may effect a warrantless arrest when he has probable cause to believe that the person is committing or has committed a misdemeanor, and the law enforcement officer has probable cause to believe that such person will not be apprehended unless such person is immediately arrested.

2. The requirement of K.S.A. 22-2401(c)(2)(i) is met when a criminal suspect, who identifies himself to a law enforcement officer in response to a direct question by that officer during the course of a criminal investigation, is carrying no documents of identification and cannot verify in any way his given identity.

3. A law enforcement officer with reasonable suspicion that an individual has committed a crime may demand of that individual his name but may not compel an answer.

4. The scope of K.S.A. 21-3808 is broad enough to encompass oral statements as well as physical acts. The intent of that statute is to make criminal the willful obstruction by any means of an officer acting in the discharge of his official duty.

5. A criminal suspect, carrying no identification, who falsely identifies himself to a law enforcement officer in response to a direct question by that officer during the course of a criminal investigation, may obstruct that officer within the meaning of K.S.A. 21-3808.

6. K.S.A. 21-3808 is not unconstitutional as being vague, indefinite and uncertain.

Robert D. Hecht of Scott, Quinlan & Hecht, Topeka, for appellant.

Robin D. Fowler, Asst. Dist. Atty., Robert T. Stephan, Atty. Gen., and Jerry L. Harper, Dist. Atty., for appellee.

Before BRISCOE, P.J., and ABBOTT and SWINEHART, JJ.

SWINEHART, Judge:

Defendant Steven K. Latimer appeals from his conviction of obstruction of official duty, in violation of K.S.A. 21-3808. Defendant asks us to determine whether a suspect's giving of a fictitious identity to a law enforcement officer can constitute a violation of K.S.A. 21-3808, and whether 21-3808, as applied, is unconstitutionally vague.

On June 5, 1983, defendant ordered and received a pizza costing $6.50 at a Pizza Hut in Lawrence. Upon attempting to leave the Pizza Hut by the back door, defendant was confronted by a Pizza Hut deliveryman who accused defendant of not having paid for the pizza. Defendant reentered the Pizza Hut where he told the employees that he had paid for the pizza. When one of the employees called the police, defendant fled out the back door, pursued by another employee.

Officer Rex Lane of the Lawrence Police Department was then on duty, in uniform, and driving a marked patrol car. Officer Lane first saw defendant when defendant was approximately twenty-five to thirty yards from the Pizza Hut. Defendant was being pursued by a Pizza Hut employee who motioned to the officer for help. Officer Lane stopped defendant and the employee about one block from the Pizza Hut. As he exited his patrol car, Officer Lane heard via his radio that the nearby Pizza Hut had reported a "walk-out."

Defendant claimed that he had been in the Pizza Hut but had paid his bill. When Officer Lane asked defendant his name, defendant replied "Kenneth Q. Lindsay," and gave both a Topeka and a Lawrence address. Officer Lane determined that defendant had no identification on him. Defendant was then taken to the Pizza Hut where the employees maintained that none of them had taken payment for defendant's pizza. Defendant was thereupon arrested by Officer Lane and was transported to jail. A check by the dispatcher of the Kansas Motor Vehicles files revealed no driver's license issued to a Kenneth Q. Lindsay. When confronted with this information during the booking process, defendant refused to identify himself further. Approximately one-half hour later, when in jail, defendant admitted that his name was Steven Kent Latimer.

Defendant was charged with theft of services, in violation of K.S.A. 21-3704, and obstructing a person in his official duty, in violation of K.S.A. 21-3808. The court refused to allow the State to amend the complaint from theft of services to defrauding a restaurant (K.S.A. 1983 Supp. 36-206), and thereafter dismissed the theft charge. In a bench trial, defendant was found guilty of obstruction for having falsely identified himself to Officer Lane. Defendant now appeals that conviction.

Defendant first argues that he was improperly compelled to identify himself to Officer Lane, and that his giving of a false identity does not constitute a violation of K.S.A. 21-3808, obstructing official duty. The State contends that both the warrantless arrest statute, K.S.A. 22-2401, and the stop and frisk statute, K.S.A. 22-2402, justify Officer Lane's request for defendant's identity.

K.S.A. 22-2401(c)(2)(i) provides that a law enforcement officer may arrest a person when he has probable cause to believe that the person is committing a misdemeanor and the law enforcement officer has probable cause to believe that such person will not be apprehended unless such person is immediately arrested. Defendant concedes that Officer Lane was supplied information upon which he could "reasonably suspect" that defendant had committed a crime, and the record reveals sufficient facts to support a finding of probable cause that defendant was committing a crime. However, defendant claims the officer lacked probable cause to believe that defendant would not be apprehended unless he was immediately arrested, since defendant supplied a plausible name and address to the officer.

This argument is without merit. The record reveals that defendant was carrying no identification when stopped by Officer Lane, and was unable to verify his given identity in any way. Officer Lane had probable cause to believe that defendant had left the Pizza Hut without paying for his pizza, had seen defendant in an all-out flight from a Pizza Hut employee, and had determined that defendant lacked positive identification. Under these circumstances, Officer Lane had probable cause to believe that defendant would not be apprehended unless he was immediately arrested. To hold otherwise would allow any misdemeanor suspect to give a plausible but false identity upon being questioned, preventing his arrest with or without a warrant (warrantless arrest not possible since no probable cause to believe defendant would not be apprehended later, and arrest with warrant not possible because identity is false and defendant's whereabouts unknown).

Further, the stop and frisk statute clearly provides that a law enforcement officer may stop any person in a public place whom he reasonably suspects has committed a crime, and may demand of him his name, address and an explanation of his actions. K.S.A. 22-2402(1). The actions taken by Officer Lane fell squarely within the limits of this statute. Accordingly, the request that defendant reveal his name was proper.

Although Officer Lane had the right to demand of defendant his name under the circumstances revealed in the record, defendant was under no legal duty to respond to the question posed by the officer. As was stated in Kolender v. Lawson, 461 U.S. 352, ----, 103 S.Ct. 1855, 1863, 75 L.Ed.2d 903, 915 (1983) (Brennan, J., concurring):

"In sum, under the Fourth Amendment, police officers with reasonable suspicion that an individual has committed or is about to commit a crime may detain that individual, using some force if necessary, for the purpose of asking investigative questions. They may ask their questions in a way calculated to obtain an answer. But they may not compel an answer, and they must allow the person to leave after a reasonably brief period of time unless the information they have acquired during the encounter has given them probable cause sufficient to justify an arrest."

Because of the number of devices with "substantial coercive impact" available to police officers, few people will ever feel free not to cooperate fully with the police by answering their questions. Kolender, 461 U.S. at ----, 103 S.Ct. at 1862, 75 L.Ed.2d at 913. Nonetheless, a refusal to answer furnishes no basis for an arrest, but may alert the officer to the need for continued observation.

In the present case we are not asked to determine whether defendant, by his silence, violated K.S.A. 21-3808. Rather, the central issue on appeal is whether defendant, by giving a false identity when asked his name by Officer Lane, violated K.S.A. 21-3808. That statute provides in part:

"Obstructing legal ... duty is knowingly and willfully obstructing, resisting or opposing any person authorized by law to serve process ... in the discharge of any official duty."

Defendant does not challenge the fact that Officer Lane was authorized by law to serve process or that he acted in the discharge of his official duty in his dealings with defendant. Rather, defendant claims that his giving of a false name is not the type of conduct which the statute was meant to prohibit. This is apparently a question of first impression in Kansas. Although other jurisdictions have examined whether false statements to a law enforcement officer constitute obstruction, the differences in statutory language and fact situations minimize the relevance of those cases. See, e.g., Dayton v. Rogers, 60 Ohio St.2d 162, 164, 398 N.E.2d 781 (1979) (false identification of suspect by suspect's companion did not "hamper or impede public officials in the performance of...