State v. Gardiner

814 P.2d 568, 163 Utah Adv. Rep. 16, 1991 Utah LEXIS 56, 1991 WL 110882

• Court: Utah Supreme Court
• Decided: June 18, 1991
• Docket: 890231
• Status: Published

Opinions

ON CERTIORARI TO THE UTAH COURT OF APPEALS

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); Pauli 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 Hat-zidakis and Reserve Officer Terry Shiner responded to assist Deputy Lytle in his investigation.

The officers located a party at the Dina-land Aviation building. While Officer Hat-zidakis 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, Gard-iner 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 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 appealed his convictions. In an unpublished opinion, the Utah Court of Appeals ruled that the search by Officer Hat-zidakis was illegal because there were no exigent circumstances that justified a war-rantless 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.

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 constitutional-ized 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 Gard-iner’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. Laroc-co, 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 Dina-land 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 Tuck-ett’s opinion stated:

If the intention of the legislature was to penalize a law-abiding citizen by incarceration because he [or she] did not willingly submit to an unlawful arrest, a statute authorizing the same is in violation of both the Utah and United States Constitutions ... in that it permits and authorizes an arrest without probable cause and without lawful basis for the arrest.

Id. at 801. Justice Henriod, in his separate concurrence, stated that he would have struck the statute down not only on vagueness grounds, but also on the ground that the statute violated the state search and seizure provisions by making unlawful any resistance to an illegal arrest. Id. at SOS-OS.

The two dissenters wrote separate opinions. Each disagreed with the statement in the majority opinion that it would be unconstitutional for the legislature to make it unlawful to resist an illegal arrest. Id. at 805 (Ellett, J., dissenting); id. at 806 (Crockett, J., dissenting). Justice Ellett explained his view of the matter by noting:

The common law gave a person the right to resist an unlawful arrest, but times have changed since the time when self-help was permitted to prevent a wrongful arrest. At common law, arrests were often made by citizens. Judges were not available for speedy release on bond, and trials were long delayed. Such conditions no longer exist. An arrested person must be taken forthwith before a magistrate, and trial must not be unreasonably delayed. A defendant is entitled to bail in a reasonable amount.

Bradshaw, 541 P.2d at 805. In his view, these protections mooted the majority’s objection to the statute’s substance. “[The statute] does not permit an unlawful seizure (arrest). It merely transfers the right of redress for a wrongful arrest to the orderly procedure of a court trial instead of a brawl in the streets.” Id.

Gardiner asserts that the majority in Bradshaw adopted the common law right to forcibly resist an illegal search or arrest. We acknowledge that the language of both Justice Tuckett’s majority opinion and Justice Henriod’s concurrence does suggest not only a common law right to forcibly resist an illegal arrest and, by extension, an illegal search, but also a state and federal constitutional right as well. However, no matter how strongly a majority of the members of the court which sat on Bradshaw in 1975 felt about this issue, they did not decide the case on this ground. The majority’s holding of unconstitutionality was based on vagueness alone. Any discussion of the substantive right to resist is dictum only, and this court is not bound by earlier dicta. See State v. Rimmasch, 775 P.2d 388, 400 (Utah 1989). Therefore, the comments of the majority in Bradshaw on this issue are not controlling, and this court has yet to pass upon whether Utah recognizes the availability of a common law right to forcibly resist an illegal search or arrest and the scope of that right.

The English common law right to forcibly resist one attempting to effect an illegal arrest was established almost three hundred years ago in Regina v. Tooley, 2 Ld. Raymond Rep. 1296, 1299-1301 (Q.B. 1709). As Justice Ellett’s dissent in Bradshaw noted, the Tooley case was decided at a time when an illegal arrest posed grave risks for a defendant. Most arrests were made by private citizens, not by public officers. Bail for felonies was unattainable, and years might pass before royal judges arrived for a jail delivery. Under such circumstances, there was no speedy or effective way to challenge an illegal arrest. The adoption of the Tooley rule seemed at that time both reasonable and justifiable. See S. Warner, The Uniform Arrest Act, 28 Va.L.Rev. 315, 330 (1942) [hereinafter “Warner”].

However, this common law right has been subjected to extensive criticism. See, e.g., State v. Hatton, 116 Ariz. 142, 147, 568 P.2d 1040, 1045 (1977); People v. Hess, 687 P.2d 443, 447 (Colo.1984); Warner at 330-31. The criticism of the self-help doctrine is based on the fact, noted by Justice Ellett’s dissent, that the dangers flowing from illegal arrests which existed when the rule was adopted are substantially reduced today. Bradshaw, 541 P.2d at 805 (Ellett, J., dissenting). An arrestee now has the “benefits of liberal bonding policies, appointed counsel in the case of indigency, and the opportunity to be taken before a magistrate for immediate arraignment and preliminary hearing.” State v. Richardson, 95 Idaho 446, 450, 511 P.2d 263, 267 (1973).

Similar considerations support a rejection of the doctrine where illegal searches are concerned. The Supreme Court of New Mexico in State v. Doe, 92 N.M. 100, 583 P.2d 464 (1978), summarized the dangers of the common law self-help rule and its reasons for rejecting that rule where searches are concerned:

Self-help measures undertaken by a potential defendant who objects to the legality of the search can lead to violence and serious physical injury. The societal interest in the orderly settlement of disputes between citizens and their government outweighs any individual interest in resisting a questionable search. One can reasonably be asked to submit peaceably and to take recourse in his legal remedies.

Doe, 92 N.M. at 102-03, 583 P.2d at 466-67 (citations omitted). Further, in cases of illegal police searches, the subject of the search has “the assurance that any evidence so acquired is rendered inadmissible in a subsequent criminal trial.” United States ex rel. Kilheffer v. Plowfield, 409 F.Supp. 677, 680-81 (E.D.Pa.1976); see also State v. Larocco, 794 P.2d 460, 471 (Utah 1990). This was most certainly not the case at common law.

Because the justification for the common law doctrine has all but disappeared, and because of its potential for causing violent confrontations between police, who are usually armed, and private citizens, the modern trend is to reject the common law right.² Thus, in most states a citizen may not use force to resist an illegal arrest unless the officer uses excessive force. Commonwealth v. Moreira, 388 Mass. 596, 600, 447 N.E.2d 1224, 1228 (1983).³

For like reasons, some courts have extended this rejection of the common law right to resist an illegal arrest to illegal searches as well, including the Supreme Court of Alaska in the decision relied upon by the court of appeals, Elson v. State, 659 P.2d 1195 (Alaska 1983). In that case, the defendant had been pulled over for suspicion of drunk driving. As the officer performed a “pat down,” he noticed a hard object in the defendant’s right pants pocket. The officer then attempted to remove the object, and the defendant resisted. Before the Alaska Supreme Court, the defendant argued that he had a constitutional right to forcibly resist what he believed to be an illegal search. The court disagreed and held, “[A] private citizen may not use force to resist a peaceful search by one who he knows or has good reason to believe is an authorized police officer performing his duties, regardless of whether the search is ultimately determined to be illegal.” Id. at 1200.

The Supreme Court of New Mexico had previously come to the same conclusion and adopted a rule similar to that in Elson. Doe, 92 N.M. at 102-03, 583 P.2d at 467; see also United States v. Ferrone, 438 F.2d 381, 390 (3d Cir.), cert. denied, 402 U.S. 1008, 91 S.Ct. 2188, 29 L.Ed.2d 430 (1971) (a person cannot forcibly resist a peace officer’s execution of a search warrant later found to be illegal); Hatton, 116 Ariz. at 148, 568 P.2d at 1046.

Based on the foregoing discussion and the trend in other states, were we free to do so, we would be inclined to reject the English common law and adopt the diluted defense to an illegal search or arrest articulated in Elson and similar decisions.⁴ However, we conclude that we are not free to fashion such a rule because thé legislature has already acted in the area. Common law rights to resist arrest are not relevant where the common law has been replaced by statute.

When the Utah legislature enacted the Utah criminal code in 1973, it abolished all common law crimes. Utah Code Ann. § 76-1-105 (1973). Now, in Utah a person is guilty of a crime only if that person’s actions and state of mind fit within the statutory definitional elements of a crime. E.g., Utah Code Ann. § 76-1-105; State v. Maestas, 652 P.2d 903, 904 (Utah 1982). State v. Pearson, 680 P.2d 406, 408 n. 4 (Utah 1984). Similarly, the legislature enacted a number of general defenses as well as numerous specific defenses which are included in the various statutory provisions. However, in codifying these defenses, it did not enact a generally available defense based on the illegality of police conduct. See Utah Code Ann. §§ 76-2-401 to -406 (codifying defenses for minority, compulsion, entrapment, ignorance of fact which negates specific mental state, and mental illness). We consider the enactment of these specific and varied defenses and the failure to enact any general illegality defense to impliedly preclude us from finding any generally available common law right to resist an illegal search or arrest. If such a defense exists in Utah, it must be grounded in the specific code sections under which Gardiner was convicted.

The first crime of which he was convicted is assault on a peace officer, a crime under section 76-5-102.4 of the Code. Section 76-5-102.4 provides:

Any person who assaults a peace officer, with knowledge that he [or she] is a peace officer, and when the peace officer is acting within the scope of his [or her] authority as a peace officer, is guilty of a class A misdemeanor.

Utah Code Ann. § 76-5-102.4 (1990). The only language in this section that could be construed as giving any sanction to a right to resist an unlawful arrest is the phrase “and when the peace officer is acting within the scope of his [or her] authority as a peace officer.” However, this is not equivalent to the common law defense. Under section 76-5-102.4, the State must show, as an element of proof of the offense, that the officer was “acting within the scope of his [or her] authority as a peace officer.” The defendant has no burden of proof on the issue, as was the case at common law and as would be true even under the modern trend.

On the other hand, the statute does not require that the State prove that the precise act the officer is performing is not legally challengeable, i.e., that the arrest or search being effected is entirely lawful and beyond challenge. All that must be shown is that the officer is acting within the “scope of authority of a peace officer.” In this respect, section 76-5-102.4 would appear from its plain language to reject the narrow common law approach endorsed in Bradshaw that authorized resistance if the arrest was unlawful in any particular and instead to have opted for an approach that, in operation, will be closer to the modern trend. Where the officer is not acting wholly outside the scope of his or her authority, the police action may not be resisted. The fine question of legality must be determined in subsequent judicial proceedings, not in the street. In interpreting the language “scope of authority,” we find illustrative the Second Circuit’s decision in United States v. Heliczer, 373 F.2d 241, 245 (2d Cir.1967). There, it stated that the test is whether an officer is doing what he or she was employed to do or is “engaging in a personal frolic of his [or her] own.” Id.

Gardiner and Judge Bench argue that Gardiner should be acquitted because Hat-zidakis was not acting within the scope of his authority when he conducted what was later determined to be an unlawful search. However, this position ignores the language of the statute in an attempt to reach a result the Bradshaw dictum would sanction.

Having isolated the legal standard, we must determine whether it was met here. We note that in cases involving mixed questions of fact and law where the judge makes a determination on contested facts, we view the evidence in the light most favorable to the trial court’s ruling and reverse only if the necessary factual findings implicit in the court’s ruling lack sufficient evidentiary support. See Gray-son-Roper Ltd. Partnership v. Finlinson, 782 P.2d 467, 470 (Utah 1989); State v. Walker, 743 P.2d 191, 192-93 (Utah 1987); Utah R. Civ.P. 52(a). In reviewing the application of the law to those facts and findings, we apply a correctness standard and reverse if the legal standard is not satisfied. Mountain Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 887 (Utah 1988); Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985); Margulies v. Upchurch, 696 P.2d 1195, 1200 (Utah 1985).

Viewed in a light most favorable to the trial court, the facts are that Officer Hatzi-dakis responded to an anonymous phone call reporting a loud party at the Vernal Airport. He was in uniform and on duty at the time he responded to the call. Upon arrival at the scene, he informed Gardiner and others that he was a police officer and intended to search the building because he saw persons he believed to be minors consuming alcohol inside. When Hatzidakis informed Gardiner that he did not have a search warrant, Gardiner told the officer he could not enter and physically confronted the officer. The trial court found that Gardiner’s “demeanor ... was hostile and threatening.” At this point, Hatzidakis pushed Gardiner away from the door, and Gardiner fell onto a card table that crashed under his weight. We find these factual findings to have adequate evidentiary support in the record. Considering the circumstances Officer Hatzidakis faced at this point, we conclude that the trial court did not err in finding that the force used as a matter of law to pursue the search was “not excessive” and was “reasonable in view of the circumstances.” Gardiner then got up from the ground, charged Hatzidak-is, and hit him in the face, knocking him out of the building. The melee continued outside the building, even after Hatzidakis informed Gardiner he was under arrest. From these facts, it is clear that there is sufficient evidence to find that Gardiner was guilty of assaulting a peace officer under section 76-5-102.4 while that officer was attempting to conduct a search in the course of a criminal investigation and then effect an arrest.

Was the officer “acting within the scope of his authority as a peace officer”? We think the evidence is ample to support the trial court’s conclusion that he was. The fact that his attempted search was later found to be unlawful does not divest him of his authority. See United Heliczer, 373 F.2d at 245.

Turning to the second count for which Gardiner was convicted, section 76-8-305 provides:

A person is guilty of a class B misdemeanor if he [or she] has knowledge, or by the exercise of reasonable care, should have knowledge, that a peace officer is seeking to effect a lawful arrest or detention of himself [or herself] or another and interferes with such arrest or detention by use of force or by use of any weapon.

Utah Code Ann. § 76-8-305 (Supp.1990). Without recounting the events that precipitated the brawl, it is clear that when Gard-iner hit the officer the first time, he had violated section 76-5-102.4. It was after this punch and during the ensuing fight outside the building that Hatzidakis informed Gardiner that he was under arrest. The record is clear that Gardiner was aware of Hatzidakis’s attempt to place him under arrest. In fact, after Hatzidakis informed him that he was under arrest, Gardiner contended that he was not and then proceeded to hit Hatzidakis again in the face. This evidence is sufficient to support a conviction under section 76-8-305. Gardiner points to the illegality of the underlying search as justification for his attacking and continuing to fight Hatzidak-is. However, as noted above, this is not a sufficient ground to assault a peace officer.

Gardiner relies also on sections 76-2-405 and -406 as articulating a right to physically resist Hatzidakis’s search. Section 76-2-405 gives a person the right to use reasonable force to “prevent” or “terminate” another’s unlawful entry or attack upon his [or her] “habitation.” That section states: “A person is justified in using force against another when and to the extent that he [or she] reasonably believes that the force is necessary to prevent or terminate the other’s unlawful entry into or attack upon his [or her] habitation .... Utah Code Ann. § 76-2-405 (1990) (emphasis added). Because no place of habitation is involved here, only a place of business, by its terms section 76-2-405 has no application to our case.

As for section 76-2-406, it provides: “A person is justified in using force, other than deadly force, against another when and to the extent that he [or she] reasonably believes that force is necessary to prevent or terminate criminal interference with real property or personal property.” Utah Code Ann. § 76-2-406 (1990). This section does permit the use of force to prevent a criminal interference with real property, and it could be construed to cover an illegal search of commercial premises. However, section 76-2-406 does not explicitly mention peace officers. For reasons common to sections 76-2-405 and -406, we conclude that that legislative silence indicates an intention that the actions of law enforcement officers taken within the course of their duties are not within the category of intrusions that may be lawfully resisted.

Both section 76-2-405 and section 76-2-406 were enacted in 1973 when the version of section 76-8-305 struck down by Bradshaw was still in force. That section made it illegal to resist arrest or detainment by a peace officer without regard to its legality. Thus, interpreting section 76-2-406 to include within its scope peace officers acting in the furtherance of their duty would bring section 76-2-406 into direct conflict with then-section 76-8-305. We conclude that the legislature intended section 76-2-406 and section 76-2-405 to exclude peace officers acting in the course of their duties from their operation.

The judgment is affirmed.

HALL, C.J., and DURHAM, J., concur.

1 . We note with some concern the court of appeals’ use of rule 31 of the Utah Rules of Appellate Procedure to dispose of this case via an unpublished opinion, even after Bradshaw was called to its attention. Rule 31 allows an appellate court to "dispose of any qualified case” in an unpublished opinion upon its own motion. However, by its own terms, the rule is not appropriate for use where there are “substantial constitutional issues, issues of significant public interest, issues of law of first impression, or complicated issues of fact or law.” Utah R.App.P. 31.

Here, the initial court of appeals’ opinion established a new rule of Utah law, as the opinion itself acknowledged; yet that opinion was unpublished. Then the court of appeals denied Gardiner’s petition for rehearing, which brought to the court’s attention dicta in Bradshaw that appeared to be flatly contrary to the new rule announced in the unpublished opinion; yet the opinion remained unpublished. In sum, this case rather plainly was not one that could be properly disposed of under rule 31.

The evils of unpublished opinions have been commented upon by many. Given the paucity of precedent in Utah, there seems little justification for their use here. ”[I]f a case deserves being disposed of by written opinion, that opinion should be published. If a decision truly adds nothing to the law, it should be disposed of from the bench or by a short written order that may be informative to the parties but to no one else." Paffel v. Paffel, 732 P.2d 96, 104 (Utah 1986) (Zimmerman, J., concurring). For a discussion of the potential problems associated with unpublished opinions see Reuben, Published in Part, Buried in Part, 16 Litig. 4 (Summer 1990), and Paffel v. Paffel, 732 P.2d 96, 104 (Utah 1986).

2 . In the following cases, courts have rejected the common law rule: Miller v. State, 462 P.2d 421, 427 (Alaska 1969); State v. Hatton, 116 Ariz. 142, 147-48, 568 P.2d 1040, 1045-46 (1977); State v. Richardson, 95 Idaho 446, 451, 511 P.2d 263, 268 (1973); State v. Thomas, 262 N.W.2d 607, 610-11 (Iowa 1978); State v. Austin, 381 A.2d 652, 655 (Me.1978); In re Welfare of Bums, 284 N.W.2d 359, 360 (Minn.1979); State v. Nunes, 546 S.W.2d 759, 762-63 (Mo.Ct.App. 1977); State v. Koonce, 89 N.J.Sper. 169, 183-84, 214 A.2d 428, 435-36 (1965); State v. Doe, 92 N.M. 100, 102-03, 583 P.2d 464, 467 (1978); Columbus v. Fraley, 41 Ohio St.2d 173, 179-80, 324 N.E.2d 735 (1975).

3 . In Moreira, the Supreme Judicial Court of Massachusetts conducted an in-depth analysis of this issue. Through its research, it concluded that at that time eleven states by judicial decision and nineteen states by legislative enactment had determined that "a person may not resist an unlawful arrest which is accomplished without excessive force.” Moreira, 388 Mass, at 600, 447 N.E.2d at 1228.

4 .The Alaska Supreme Court addressed an additional issue in Ebon. A footnote in that decision warned that the rule it adopted barring the use of force to oppose a search does not apply where the officer uses "excessive or unnecessary force in conducting the search." Ebon, 659 P.2d at 1200 n. 18. This qualification resulted from the court’s concern that in instances where the officer uses excessive force in effecting a search, the defendant must have the legal right to defend against that excessive force. See Gray v. State, 463 P.2d 897, 908 (Alaska 1970). Were we to adopt the approach, we would incorporate this view into our test.