Mickelson v. State

906 P.2d 1020, 1995 Wyo. LEXIS 199, 1995 WL 643133

• Court: Wyoming Supreme Court
• Decided: November 3, 1995
• Docket: 93-195
• Status: Published

Opinions

TAYLOR, Justice.

Disappointed in the reversal of Matthew Miekelson’s (Miekelson) conviction for misdemeanor interference with a peace officer, the State of Wyoming petitioned for rehearing following this court’s opinion in Mickelson v. State, 886 P.2d 247 (Wyo.1994). Since the State alleged error regarding citizen resistance to arrest, we granted rehearing and entertained oral argument. Finding that the State has not sustained its burden of demonstrating error in our original determination, we dismiss their petition for rehearing.

I. ISSUES

The State’s brief in support of its petition for rehearing identified the following arguments:

ARGUMENT I

The police had reasonable grounds to enter the bar.

ARGUMENT II

Appellant interfered with a police officer in the performance of his lawful duties.

ARGUMENT III

The officers had consent to enter the bar.

The State beseeches us for further guidance lest our original decision encourage “all miscreants to resist an officer’s actions * * each in hopes of a post hoe determination that the officer’s actions were unjustified. Hyperbole aside, the State’s petition for rehearing bespeaks serious misapprehensions about the relationship of citizens and law enforcement as informed by cherished constitutional prohibitions on warrantless search and seizure.

Our original opinion is clear upon the failure of liquor laws to countenance warrantless law enforcement entry of a Wyoming bar after hours. However, if police entry was permissive, Mickelson’s arrest might nonetheless have been proper. The permission issue, in turn, may hinge upon considerations of officer safety. Finally, the arresting officer entertained the assumption that reasonable suspicion of criminal activity permitted warrantless entry of an otherwise private premises.

II. FACTS

Early January 7, 1993, Officer Michael Ernst found himself in a patrol car, supervising the graveyard shift of the Laramie Police Department. Around 2:37 a.m., Officer Ernst saw two men shooting pool inside the Fireside Bar and Lounge (the Fireside). He was concerned because a barmaid’s car was parked outside and she was nowhere to be seen. Officer Ernst summoned another officer and together they observed the pool game for several minutes. Officer Ernst’s suspicions were further piqued when the pool players apparently noticed their audience and extinguished the light over the pool table, retreating to darkened recesses of the bar.

When the officers approached the Fireside on foot, Miekelson appeared at a window and, in terms most obscene and profane, refused police entry. Officer Ernst asked “dispatch”¹ to contact the Fireside’s owner to facilitate his permissive entry. Speaking to dispatch by telephone, the owner (Mickel-son’s mother) did not give permission for entry, but did inform dispatch that Officer Ernst probably just saw her son and some friends closing up. Mickelson’s mother twice telephoned the bar, suggesting to her son that he might let the officers in, but leaving the decision to him. Other than Officer Ernst’s description of an after-the-fact chat with Mrs. Miekelson, the record offers no support for the assertion that Mrs. Miekelson authorized police entry.

The fact that concerns for the barmaid’s safety were allayed when she became visible within did not slacken assembly of a formidable contingent of peace officers without. A female officer, Reggie Prahl, sought to deescalate the situation by convincing Miekel-son that if she alone were allowed to enter and look around, things might quickly be resolved. Miekelson granted Officer Prahl permission to enter on the express condition that Officer Ernst not enter.

Since Officer Prahl’s offer to enter the Fireside unaccompanied was contrary to her department’s policy concerning officer safety, she and her fellow officers agreed in advance that Officer Prahl would not enter alone. Furthermore, Officer Ernst had already decided to immediately arrest Miekelson for interference with a peace officer. As Officer Prahl permissively entered the Fireside, Officer Ernst forced his way in behind her, along with several other officers. Miekelson made an effort to bar Officer Ernst’s entrance and, in Officer Ernst’s words: “As soon as I grabbed his arm, the fight was on.” In the melee that followed, Miekelson could be heard calling out to Officer Prahl, asking why she had lied to him.

Miekelson was charged with felonious interference with a peace officer engaged in the lawful performance of his duties, in violation of Wyo.Stat. § 6-5-204(b) (1988). Having stipulated to a “lesser included offense” jury instruction covering misdemeanor interference with a peace officer engaged in the lawful performance of his duties, in violation of Wyo.Stat. § 6-5-204(a) (1988), Miekelson was convicted on that lesser offense.

III. DISCUSSION

It is crucial to distinguish the kinds of encounters between citizens and police contemplated by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) from those in which officers and citizens are separated by the threshold of a residence or place of business. The existence of such a threshold affords increased protection for the privacy of citizens while ameliorating the concerns for officer safety which engendered Terry and its progeny.

A. ARRest Without a Warrant

Mickelson’s arrest was a seizure of his person without a warrant. Wilson v. State, 874 P.2d 215, 223 (Wyo.1994). Seizures without a warrant are considered unreasonable, per se, subject only to a few clearly articulated exceptions. Guerra v. State, 897 P.2d 447, 452 (Wyo.1995). Absent a warrant, the state must establish the existence and applicability of such an exception. Jessee v. State, 640 P.2d 56, 61 (Wyo.1982).

B. Absence of Permission to Enter

It is true that Officer Ernst tried to contact the owner of the Fireside for permission to enter, but the record fails to establish that such permission was either forthcoming or effectively communicated to Officer Ernst. Officer Ernst’s efforts to establish consent via post hoc colloquy with the owner ran afoul of the proposition that such action must be “justified at its inception * * *.” Terry, 392 U.S. at 20, 88 S.Ct. at 1879 (quoted with approval in Wilson, 874 P.2d at 225).

A focal point of argument at rehearing was the nature of permission to enter the Fireside granted to Officer Prahl by Miekelson. The State contends fundamental officer safety concerns excuse the ruse whereby Officer Ernst and his cohorts piled into the Fireside after Officer Prahl. Mick-elson argues consent to enter upon a private premises may lawfully be conditioned upon the number or identity of officers thus admitted. We agree with Miekelson.

A consent to search may be restricted in scope to designated items, restricted to certain places, or limited in purpose. A time limitation or limitation on persons permitted to conduct the search may be a further restriction on a consent search. A search based on consent is proper so long as the search is kept within the bounds of the actual consent.

Amin v. State, 695 P.2d 1021, 1025 (Wyo.1985) (emphasis added). Like consent to search, even a bare consent to enter must be voluntarily given in order to be legally valid. Sandborn v. State, 735 P.2d 435, 437 (Wyo.1987) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854 (1973)).

The leading federal ease discounts an individual’s legal capacity to validly limit the number of searchers, but agrees that “the government must conform to limitations placed upon the right granted to search * * * )> United States v. Rubio, 727 F.2d 786, 796 (9th Cir.1983).

As stressed, Mickelson’s arrest, like any other, was “quintessentially a seizure * * subject to Fourth Amendment scrutiny. United States v. Watson, 423 U.S. 411, 428, 96 S.Ct. 820, 830, 46 L.Ed.2d 598 (1976), Powell, J., concurring. Accordingly, a bright line has been drawn at the threshold of a person’s dwelling which cannot be crossed to effectuate the warrantless arrest of a suspect absent consent or exigent circumstances. Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980).

Two important distinctions separate Pay-ton from the instant case. One is the Payton court’s acknowledgment that “midday public arrest * * * ” based on probable cause passes constitutional muster. Id. at 574-75, 100 S.Ct. at 1373-74 (quoting Watson, 423 U.S. at 418 n. 6, 96 S.Ct. at 825 n. 6). Because Payton specifies police entry of a dwelling, it may be argued that the relative sanctity of a man’s place of business, when locked during non-business hours, remains unaddressed. In the present context, at least, the Payton rule should extend to businesses, particularly insofar as the Fourth Amendment was largely inspired by “writs of assistance” aimed at places of commerce. Guerra, 897 P.2d at 455; Marshall v. Barlow’s, Inc., 436 U.S. 307, 311-12, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978); see also United States v. Bute, 43 F.3d 531, 537 (10th Cir.1994).

Payton also provides that illegality of arrest does not preclude a trial on the merits. Payton, 445 U.S. at 592 n. 34, 100 S.Ct. at 1383 n. 34. We agree. Crouse v. State, 384 P.2d 321, 326-27 (Wyo.1963). The legality of Miekelson’s arrest, however, is elemental to his alleged crime. Interference with a peace officer is not a crime unless the officer is “engaged in the lawful performance of his official duties.” Wyo.Stat. § 6-5-204(a) and (b). Officer Ernst was not lawfully in the Fireside, ergo Mickelson’s conviction cannot stand.

C. Officer Safety

Nothing written here should be cited for the proposition that proper regard for officer safety might run police officers afoul of an arrestee’s constitutional rights. The concerns for officer safety articulated by Terry have only increased exponentially over the years. Terry, 392 U.S. at 24 n. 21, 88 S.Ct. at 1881 n. 21. But Terry and its progeny involve contact between police and citizens in public places and upon public thoroughfares, where protection of officers may be effectuated through somewhat reduced citizen expectations of privacy. None of those cases addressed a situation where officers sought entry into a locked building when it was that very entry which would create greater danger for the officers.

Officer Prahl’s efforts to de-escalate tensions were admirable, but such negotiations must be upon terms which the police can ultimately honor. Implied promises to Mick-elson that Officer Prahl would enter alone and that Officer Ernst would not enter were disingenuous. A degree of ruse is oft allowed, “ ‘[p]articularly, in the enforcement of vice, liquor or narcotics laws[.]’ ” Lewis v. United States, 385 U.S. 206, 210 n. 6, 87 S.Ct. 424, 427 n. 6, 17 L.Ed.2d 312 (1966) (quoting Model Penal Code § 2.10, comment, p. 16 (Tent.Draft No. 9, 1959)). However, the preferable course in a case like this is redemption of fundamental societal values:

When a government agent presents himself to a private individual, and seeks that individual’s cooperation based on his status as a government agent, the individual should be able to rely on the agent’s representations. We think it clearly improper for a government agent to gain access * * * which would otherwise be unavailable to him by invoking the private individual’s trust in his government, only to betray that trust.

S.E.C. v. E.S.M. Government Securities, Inc., 645 F.2d 310, 316 (5th Cir.1981). The need for undercover operations in today’s society is patent, but different factors are at play when law enforcement presents itself to a citizen qua law enforcement. When a peace officer relies upon her badge in dealing with citizens, the officer comes under a continuing obligation to pursue those dealings in an honest and straightforward fashion. Failure to do so may jeopardize the fruits of her efforts.

D. Reasonable Suspicion of CRIMINAL Activity

Finally, it should be emphasized that even had Officer Ernst gained lawful entry to the Fireside, his pre-determined rationale for arresting Mickelson was fatally flawed. In Officer Ernst’s own words: “[W]hat [Mickel-son] was interfering with was our authorized investigation to go in there, to find out what was going on.” Such conceit undermines meaningful enforcement of the Fourth Amendment. Pursuant to Officer Ernst’s theory, a reasonably suspicious officer,² rebuffed by a citizen at the threshold, might demand entry. Angered by lawful refusal, the officer might then break down the door and perfunctorily arrest the inhabitant for that “interference.” Such circular reasoning is unavailing as against Fourth Amendment protections.

It is true that Wyo.Stat. § 7-2-102(b) (1995) authorizes exceptions to the warrant requirement for arrest. Lobatos v. State, 875 P.2d 716, 723 (Wyo.1994). However, like the Terry type situations, Lobatos and its antecedents involve arrests made of citizens “on the boulevard.” See Ostrowski v. State, 665 P.2d 471, 475 (Wyo.1983) and Michigan v. DeFillippo, 443 U.S. 31, 34, 99 S.Ct. 2627, 2630, 61 L.Ed.2d 343 (1979). When the threshold of a home or private place of business intervenes, probable cause is insufficient to warrant entry absent the presence of exigent circumstances or the audience of a neutral and detached magistrate. No matter how frustrated Officer Ernst and his fellow officers may have been, the dirty straw of these facts cannot be spun into the gold of probable cause and exigent circumstances sufficient to propel law enforcement across the threshold of a closed retail liquor establishment.

IV. CONCLUSION

The petition for rehearing is dismissed.

1 . The base for communications between Laramie, Wyoming and Albany County law enforcement officers, formally known as the Laramie Albany County Records and Communications Center.

2 . Pressed on cross-examination, Officer Ernst finally encapsulated his basis for warrantless entry of the Fireside: "I had reasonable suspicion to believe that there could possibly be minors in there."