State ex rel. Hurley

501 P.2d 111, 28 Utah 2d 248, 1972 Utah LEXIS 844

• Court: Utah Supreme Court
• Decided: September 14, 1972
• Docket: No. 12713
• Status: Published

Opinions

CALLISTER, Chief Justice:

Mitchell Hurley, a minor, appeals from a decree of the Juvenile Court, wherein he was fined $75 for his violation of Section .76-28-54, U.C.A.1953. Specifically, he was found to have knowingly, resisted, delayed .and obstructed one Officer Shilaos, a public officer, in the performance of his duty, to wit: arresting one Michael Valdez.

On July 18, 1970, about 5:30 in the afternoon, Valdez and Hurley were walking through an alley, which is located approximately a half block west of the University ■of Utah and runs parallel thereto in a northerly-southerly direction. Hurley testified that they had been visiting in a city park, located north of the alley, and that they used the alley as a means to go to a soft drink stand located south and west of the southerly terminus of the alley. Approximately 50 feet from the northern terminus of the alley, Hurley testified that they observed a Volkswagen with the lid of the engine compartment in a raised position. The boys stopped to observe the engine ánd engage in a brief discussion. As Hurley walked away, an automobile came down the alley, a man emerged, inquired what they were doing and demanded identification. Before Valdez could produce his identification, the man grabbed him, and Valdez attempted to free himself. The man, who was a police officer for the University of Utah by the name of Shilaos, wrestled Valdez to the ground. Hurley attempted to separate the two in response to Valdez’s screams for assistance. Other officers subsequently arrived, and the boys were arrested.

Officer Shilaos testified that while he was patrolling the alley, he observed Valdez with a pair of pliers. From the motion of his arms, it appeared to the officer that Valdez was working on the engine. The officer stopped to inquire if they needed assistance. Valdez explained that he was repairing the car for his friend, John. Since Valdez did not know John’s last name, the officer asked for identification. Upon observing the identification, the officer inquired whether he knew Valdez from somewhere, and Valdez responded: “Don’t you remember?” Valdez struck the officer a blow to the head, which stunned him. The officer grabbed Valdez and wrestled him to the ground; the ensuing struggle lasted approximately ten minutes, during which time the officer told Valdez that he was under arrest. The officer testified that he requested Hurley’s assistance and that Hurley at times helped and at times hindered him. At the conclusion 'of the struggle the officer arrested the boys on the charge of car burglary.

Based on the foregoing, the trial court found that the minor, Hurley, had violated Section 76-28-54, U.C.A.1953.

On appeal, Hurley asserts that the officer was not discharging any duty of his office so as to invoke the statute. The relevant provisions of Section 76-28-54, U.C. A. 1953, provide:

Every person who wilfully resists, delays or obstructs any public officer in discharging, or attempting to discharge, any duty of his office, .

Hurley contends that the officer had no duty of his office to discharge in the area of the alley; and, therefore, the arrest of Yaldez was that of a citizen and not of a public officer.

The officer testified that he had never been instructed to patrol the alley but he included the area on his own volition to protect the “interests” of the University of Utah.

In State v. Sandman¹ this court stated that to constitute an offense und'er Section 76-28-54, U.C.A.1953, it must appear that (A) a duly constituted public officer (B) engaged in the performance of an official duty (C) was obstructed or resisted by defendant.

Whether the officer was engaged in performing an official duty must be determined by the specific powers granted in Section 53-45-5, U.C.A.1953, which provides :

Members of the police or security department of any state institution of higher education . . . shall be peace officers and shall also have all of the powers possessed by policemen in cities providing, however, that such powers may be exercised only in cities and counties in which such institution, its branches or properties are located and only in connection with acts occurring on the property of such institution or when required for the protection of its interests, property, students or employees, . . . . [Emphasis added.]

Since the instant case did not involve any act occurring on the property of the institution, the issue is whether the officer’s patrol was within the purview of the phrase “when required for the protection of its interests, property, students or employees.” There emerges from the statute a legislative intent to restrict the extra-territorial exercise of power of these institutional police, with one sole exception. The phraseology “when required for the protection” indicates some type of exigent circumstances which impels immediate response. The word “interests” is broad and all inclusive; however, when it is considered in association with the words “property, students, or employees” its general import appears appropriately restricted to these subjects.² Thus, the legislature, in this exception, has granted power to these institutional police, beyond the property of the institution, only under some type of exigent circumstances, where the direct and immediate interests of the institution concerning its property, students, or employees is involved.

In the instant action, the sole “interests” of the University asserted in this area were the location of a fraternity and a religious institute for students on the block plus a claim that some students parked their cars in the alley. These interests were too remote and indirect to invoke the extraterritorial exception in Section 53-45-5, U.C.A.1953. We are, therefore, compelled to conclude that the officer was not engaged in the performance of an official duty, a necessary element of the offense with which Hurley was charged. The judgment of the Juvenile Court is reversed.

TUCKETT, HENRIOD and ELLETT, JJ., concur.

1 . 4 Utah 2d 09, 71, 286 P.2d 1060 (1955).

2 . W. S. Hatch Co. v. Public Service Commissioner, 3 Utah 2d 7, 11, 277 P.2d 809 (1954).