State v. Murray, 90-213

• Decision Date: 20 March 1992
• Docket Number: No. 90-213,90-213
• Citation: 135 N.H. 369,605 A.2d 676
• Parties: The STATE of New Hampshire v. Sondra MURRAY.
• Court: New Hampshire Supreme Court

Page 676

605 A.2d 676

135 N.H. 369

The STATE of New Hampshire v. Sondra MURRAY.

No. 90-213.

Supreme Court of New Hampshire.

March 20, 1992.

John P. Arnold, Atty. Gen. (Susan G. Morrell, Asst. Atty. Gen., on the brief and orally), for the State.

Nixon, Hall and Hess P.A., Manchester (Francis G. Murphy, Jr. on the brief and orally), for defendant.

BATCHELDER, Justice.

The defendant, Sondra Murray, was charged with disorderly conduct, RSA 644:2, III(a), resisting arrest, RSA 642:2, and possession of marijuana, RSA 318-B:2, misdemeanors all reduced by the State to violations before trial, see RSA 625:9, VI (Supp.1991). After a trial by the Court (Temple, J.), the defendant was acquitted of resisting arrest, but convicted of disorderly conduct and possession of marijuana and now appeals both convictions. On the disorderly conduct charge, she claims that because no member of the public was present, her conduct did not violate the disorderly conduct statute. On the possession charge, she claims that the marijuana was illegally obtained by the police, and therefore should have been suppressed. For the reasons stated below, we reverse both convictions.

On February 14, 1987, Sondra Murray and her friend, Andre Roy, were out on a date. Late in the evening, Roy was stopped for erratic driving by the Exeter police. Having established that Roy was driving with a revoked license, Officer Estabrook, who initiated the stop, arrested him. Although no assistance was requested, Sergeant Kane, who heard Estabrook's radio transmissions, arrived at the scene to render assistance.

During the arrest of the driver, the defendant was sitting in the passenger seat of the car. She shouted something from the window, and though neither officer could recall what she said, the defendant claimed she was merely curious about what was taking place. Regardless of what was said, and although Officer Estabrook was only a few feet away, neither the defendant's remarks nor their volume interfered with Officer Estabrook's arrest of Roy. When Sergeant Kane asked the defendant for identification, and she could find none, he informed her that he would not let her drive the car. According to Kane, the defendant then shouted a number of vulgarities, including "you can have a happy, f---ing Valentine's Day." Although Sergeant Kane was upset, there was no evidence that any member of the public was disturbed by these events. The defendant was subsequently arrested for disorderly conduct and resisting arrest. While Sergeant Kane was arresting the defendant, her right arm was twisted behind her back in some manner and was broken above her elbow, causing some permanent impaired movement.

The officers radioed for a fire department rescue team to attend to the defendant and her injuries. Sergeant Kane obtained possession of the defendant's purse, although he could not remember how or when. After the rescue team arrived and took custody of the defendant, Sergeant Kane searched the purse, initially for identification, but continued to search and found a small amount of marijuana inside a closed film canister. The defendant was subsequently charged with possession of the marijuana.

First, we consider whether the defendant's behavior constituted disorderly conduct. The statute under which she was convicted provides that a person is guilty of disorderly conduct if "[h]e purposely causes a breach of the peace, public inconvenience, annoyance or alarm ... by ... [m]aking loud or unreasonable noises in a public place ..., which noises would disturb a person of average sensibilities...." RSA 644:2, III. The defendant argues that because no one other than the arresting officer was disturbed, there was not the "public inconvenience, annoyance or alarm" necessary for a statutory violation. Thus, this case presents the question of whether there is public inconvenience, annoyance or alarm for the purposes of the New Hampshire disorderly conduct statute when the evidence shows that the only person disturbed was the arresting officer.

Because neither the express language of the statute nor any of our prior decisions answers the question presented here, we turn to the legislative history of RSA 644:2. The disorderly conduct statute, adopted as part of the Criminal Code in 1971, was recommended to the legislature in the Report of Commission to Recommend Codification of Criminal Laws, Laws 1967, ch. 451 [hereinafter Report ]. The Commission's language in pertinent part is identical to that of the current statute: "A person is guilty of disorderly conduct if ... with a purpose to cause public inconvenience, annoyance or alarm, ... he makes unreasonable noises...." Report, supra § 589:2(II)(b), at 99 (emphasis added). According to the Commission comments, "[t]his section is a modified version of the Michigan Revised Criminal Code, Final Draft § 5525." Report, supra at 100. The Michigan Code is also substantially identical: "A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, ... he ... [m]akes unreasonable noise...." Michigan Revised Criminal Code, Final Draft, § 5525(1)(b) (Sept.1967) (emphasis added). According to the Michigan committee's commentary in the final draft of the code, it codifies Michigan's common law on the issue. Id. The commentary cites People v. O'Keefe, 218 Mich. 1, 187 N.W. 282 (1922), as stating the common law on disorderly conduct.

O'Keefe held that there was no disturbance of the peace, and thus no disorderly conduct, when the only person witnessing or disturbed by the conduct was the arresting officer. "It does not appear that any person other than the officer was 'disturbed'.... [Thus] [i]t seems clear to us that the offense charged was not proven...." Id. at 4, 187 N.W. at 283.

The New Hampshire Commission also refers to the Model Penal Code in its comments regarding the disorderly conduct statute. Report, supra at 100. The Model Penal Code's language is similar to the wording of the New Hampshire statute: "A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, ... he ... makes unreasonable noise...." Model Penal Code and Commentaries, § 250.2(1)(b) (1980) (emphasis added). The commentary makes clear, on several grounds of policy, that the arresting officer is not a member of the public for the purposes of the statute. First, "[w]here it is the policeman's peace and quiet that are allegedly disturbed, the policeman's role in the situation is that of victim and 'judge' ... [because] [t]he arrest itself is a sanction." Id. at § 250.2(7)(i). Second, because "[h]ostility to policemen ... rests in part on a feeling that arrests often reflect affront to the policeman's personal sensibilities rather than vindication of the public interest," it would "improve police prestige if the law and police administration took a conservative approach to penalizing petty wounds to policemen's sensibilities." Id. Third, part of an officer's duty "necessarily involves him in many arrests of people who are understandably outraged, however proper the policeman's action may be," because "it is the policeman's unhappy lot to be dealing most frequently with the most unruly and unrefined elements of the population." Id. at § 250.2(7)(ii). Finally,

"[i]nsofar as the theory of disorderly conduct rests on the tendency of the actor's behavior to provoke violence in others, one must suppose that policemen, employed and trained to maintain order, would be least likely to be provoked to disorderly responses.... 'A properly trained officer may reasonably be expected to "exercise a higher degree of restraint" than the average citizen, and thus be less likely to respond belligerently to "fighting words." ' "

Id. at § 250.2(7)(iii) (quoting Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 973, 39 L.Ed.2d 214 (1974) (Powell J., concurring)).

We find the above sources of legislative history persuasive, and hold that someone other than the arresting officer must be disturbed for there to be a public disturbance within the meaning of RSA 644:2, III(a).

Our sister State, Maine, concurs in this result. In State v. John W., 418 A.2d 1097 (Me.1980), the Maine Supreme Judicial Court held that, under a statute prohibiting disorderly conduct, the words spoken by the defendant must have a direct tendency to disturb an ordinary person in the situation of the person insulted. But "the fact finder must consider those personal attributes of the addressee which were reasonably apparent because those attributes are a part of the objective situation in which the conduct occurred." Id. at 1104. Because a police officer presumably would not readily respond with violence to the defendant's insulting words, the conduct was not in violation of the statute. Id. at 1106. " 'An officer of the law must exercise the greatest degree of restraint in dealing with the public.' " Id. at 1107 (quoting Oratowski v. Civil Service Commission, 3 Ill.App.2d 551, 561, 123 N.E.2d 146, 151 (1954)).

In order for the State to have prevailed on the complaint in this case, it had to prove beyond a reasonable doubt that the defendant purposely caused a breach of the peace, public inconvenience, annoyance or alarm by making loud or unreasonable noises in a public place. On the facts here the only persons within hearing of the defendant's verbal assaults were the two officers, who, we hold, were not within the ambit of the statute's protection. Whether others were in fact inconvenienced, annoyed or alarmed was a fact to be proven and not presumed. Cf. State v. Oliveira, 115 N.H. 559, 562, 347 A.2d 165, 168 (1975) (conviction for disorderly conduct reversed on first amendment grounds, where no evidence of violent reaction to defendant's speech; " 'mere presumed presence of unwitting [or unwilling] listeners' is not a sufficient basis upon which to rest the exercise of the State's power...