State v. Lyon

584 P.2d 844, 1978 Utah LEXIS 1399

• Court: Utah Supreme Court
• Decided: August 31, 1978
• Docket: No. 15606
• Status: Published

Opinions

PER CURIAM:

This is an appeal by Lyon, a motorcyclist who was convicted in a jury trial of evading a police officer when, at about 4:00 a. m., leaving a public thoroughfare intersection in Ogden, Utah, he refused to stop when signalled to do so by one Carpenter, a “security officer” employed by Weber College to patrol the campus and also its “Events Center,” which is separated from the campus, about four blocks away. The complaint was filed under the Motor Vehicle Act, Sec. 41-6-169.10, Utah Code Annotated 1953, as amended, the essential part of which is:

Any driver who, having received a visual or audible signal from a police officer to bring his vehicle to a stop, operates his vehicle in willful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle, or any other vehicle or person, or who increases his speed and attempts to flee or elude the police shall upon conviction be fined not less than $250.00 or more than $1,000 or imprisoned in the county jail for not less than sixty days or more than one year or both.

While going from the campus to the Events Center, Carpenter saw Lyon lay down his motorcycle at the intersection; and when he turned to approach him, Lyon mounted his bike, and drove off. After Carpenter turned on his flasher and siren, Lyon went through three stop signs and was cornered and arrested in a driveway not far from where he said he was headed. He volunteered that he thought the officer was going to beat him up, because he had been threatened by officers before. Carpenter’s explanation for his approach, pursuit and arrest was that there had been some vandalism at the Events Center and he had a “suspicion” that Lyon had been or was going there for some unspecified purpose, presumably to steal. All the above happened on public streets, nothing on the campus nor at the Center, and there was no evidence of any vandalism or anything else that had happened or was about to happen at either place. There was nothing at the intersection that had happened or gave reason to believe would or reasonably might happen to affect the property of the College or anything else on the campus or at the Center.

The State’s justification for the arrest is bottomed on what we consider to be a false assumption. It volunteers and urges that “The fundamental issue is whether Officer Carpenter’s actions were required to protect the interests and the property of Weber State College, specifically the Dee Special Events Center.” If that is the issue in this case, it logically would follow that Carpenter would be justified in chasing any motorist who stopped at the intersection, surrounded by a residential area, where such intersection was employable for ingress and egress to a thousand other places than just the Weber Campus and its Events Center, including downtown Ogden, Salt Lake, Po-catello or Seattle. All one would have to do is to say that a suspicious officer is required to arrest anyone whom he considers to be a suspect for evil-doing on two isolated tracts of land, having no connection, private or otherwise, with an intra- or interstate public thoroughfare. Under the facts of this case there is absolutely nothing that would “require” Carpenter to make an arrest, and it was error for the trial court to not so rule as a matter of law rather than present the issue to the jury as one of fact.

The statute relied upon (53-45-5, U.C.A.1953) which invests a “security officer” employed by a school, with a highly restricted authority to be “a peace officer” with “all of the powers possessed by a policeman . . . only in connection with acts occurring on the property of such institution or when required for protection of its interests, property, students, or employees,” cannot, under any kind of interpretation, justify the arrest here. To say otherwise, would give such a “security officer” the power to arrest anyone at most any public intersection or on any nearby highway, anywhere leading to the campus or the Events Center, on the mere suspicion entertained by such an officer. It would be a privilege on the part of a statutory educational institution’s “security officer” to do that which a fully authorized peace officer could not do in the protection of the hundreds of homeowners’ property simply on a “suspicion” created by some real or imaginary incident such as laying down a motorcycle in a public street near a grocery store.

We are committed to the view that use of the words “required for protection” of the college’s interests, property, etc. is something akin to the concept of “present danger,” in other fields of the law, and that it is not simply tantamount to “suspicion” of past or impending breach of the law.

Lyon heavily relies on In re Hurley, 28 Utah 2d 248, 501 P.2d 111 (1972), and it would appear, justifiably so. That State relies on that case also, reasoning that “Protecting the cars of unknown persons in an off-campus alley is not analogous to the instant case.” The State ignores the fact, which is analogous to the instant case, that Officer Carpenter testified here, as did the officer there, that when he included the alley in his rounds, (which, as Mr. Justice Crockett points out, abutted student quarters, parking their cars in such alley, which also was in an area where there was a fraternity house and religious institution for students), he did so “to protect the interests of the college.” (The alley was back of the street abutting the campus.) The State also ignores the fact that in this case the officer said that he not only was protecting the interests of Weber College, but his counsel says he was “required” to protect those interests at an intersection two blocks away from either the Weber campus or its Events Center. The reason apparent in Hurley is that city police are duty-bound to patrol off-campus streets and alleys, even though the basic argument in Mr. Justice Crockett’s dissent commands attention and respect to the effect that the statute, including protection of “students” reasonably should include housing facilities and parking places as close to the campus as just across the street. This court was unwilling to go quite that far in stretching the word “require,” preferring to interpret it in its usual usage which carries with it the concept that there is. a knowledgeable present threat of malfeasance, divorced from guesswork or premonition.

We believe that Hurley is dispositive here, and order that the conviction and sentence in this case be vacated. Other points as to questionable instructions and citizens’ arrest are moot, therefore, and need no treatment here.

WILKINS, J., concurs in the result.