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Melson v. Municipality of Anchorage (12/13/2002) ap-1846
Melson v. Municipality of Anchorage (12/13/2002) ap-1846
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSHUA MELSON, )
) Court of Appeals No.
A-8149
Appellant, )
Trial Court No. 3AN-01-4765 Cr
)
v. )
) O P I N
I O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No.
1846 December 13, 2002]
)
Appeal from the District Court, Third Judi
cial District, Anchorage, Nancy J. Nolan,
Judge.
Appearances: Benjamin I. Whipple, Palmer,
for Appellant. John E. McConnaughy, III,
Assistant Municipal Prosecutor, and William
A. Greene, Municipal Attorney, Anchorage, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In previous decisions, the Alaska Supreme Court and
this Court have held that a person is not authorized to use force
to resist police officers who are making an unlawful arrest
(unless the officers use excessive force when making the arrest).
We now hold that this same rule applies when police officers use
force to detain a person during an investigative stop.
Underlying facts
At 8:00 a.m. on June 17, 2001, Anchorage
police officers attempted to question Joshua Melson
about an assault that had allegedly occurred in his
apartment building around 2:00 a.m. that same morning.
Melson denied knowledge of the assault, asserting that
he had only recently returned to his apartment. The
officers knew that this was not true, for they had seen
Melson peeking out of his window when they came to
investigate the assault four and a half hours earlier.
The officers pressed Melson to explain this
inconsistency. What happened next was a matter of
dispute at Melsons trial.
According to the testimony of Officer Shawn
Case, Melson told the officers fuck you, and then he
turned to go back into his apartment. Case told Melson
to hold on, and he grabbed Melsons wrist. Melson
lunged through the door, back into the apartment. At
the same time, someone else in the apartment slammed
the door on Cases arm. With Cases arm caught in the
door, Melson and his unseen helper continued to push on
the door. Fortunately, Officer Cases partner ran at
the door and was able to push it open just enough for
Officer Case to insert his baton into the opening.
Using the baton as a crowbar, Case was able to free his
arm. Case and his partner then left to get a search
warrant for the apartment.
Melson gave a different account of events.
He testified that Case and his partner asked him if
they could talk with the other people in the apartment.
Melson refused to allow the officers into the
apartment, but he agreed to bring the other people
outside. Melson turned and had already re-entered the
apartment when Case grabbed his arm and told him to
stop. Melson testified that he broke free from Cases
grip and slammed the apartment door shut. According to
Melson, Cases arm was never caught in the door. He
agreed that Case had tried to force the door open with
his baton, but Melson claimed that Case was trying to
effect an unlawful entry, not save himself from injury.
In any event, the officers obtained the
warrant, returned to Melsons apartment, and arrested
him. Following a jury trial, Melson was convicted of
two municipal offenses: assault upon a police officer,
and resisting or interfering with a police
investigation by fleeing after having been told to
stop.1
At trial, Melson claimed that the officers
had unlawfully tried to detain him and had unlawfully
attempted to enter his home. Melson further claimed
that he had the right to use non-deadly force to resist
the officers efforts. Melson asked District Court
Judge Nancy J. Nolan to instruct the jury on Melsons
right to use non-deadly force in defense of self and
property, and to instruct the jury that Melson could
not be convicted of resisting or interfering with a
police investigation if he was exercising his rights
under the Fourth and Fifth Amendments to the United
States Constitution. Judge Nolan refused to give these
instructions. Melson challenges the judges decision on
appeal.
A person has no right to use force to resist an
identified police officer who is using non-excessive
force to detain that person at the scene of an
investigative stop
Thirty years ago, in Miller v. State, the
Alaska Supreme Court held that a person has no right to
use force to resist an unlawful arrest by police
officers (unless the arresters are not recognizable as
police officers, or unless the officers use excessive
force to effect the arrest).2 That ruling is now
codified in AS 11.81.400(a).3 But Melson argues that
this rule should not apply to his case.
First, Melson contends that Officer Case had
no reasonable suspicion to justify his temporary
detention of Melson, much less probable cause to arrest
him. But in the district court, Melsons attorney
affirmatively conceded the opposite. After Judge Nolan
repeatedly asked Melsons attorney whether he conceded
that the officers had reasonable suspicion under
Coleman v. State4 to conduct an investigative stop of
Melson, Melsons attorney answered yes. Melson must
abide by that concession now.5
In the alternative, Melson argues that the
Miller limitation on a persons right to use force to
resist an arrest does not apply to investigative stops.
That is, because Officer Case was attempting to detain
Melson temporarily rather than arrest him, Melson
asserts that he had the right to resist the officer by
the use of non-deadly force.
In Miller, the supreme court explained that a
persons right to forcibly resist arrest even an
unlawful arrest should be restricted because
the legality of a peaceful arrest should be
determined by courts of law and not through a
trial by battle in the streets. It is not
too much to ask that one believing himself
unlawfully arrested should submit to the
officer and thereafter seek his legal
remedies in court. Such a rule helps to
relieve the threat of physical harm to
officers who in good faith but mistakenly
perform an arrest, as well as to minimize
harm to innocent bystanders.
Miller, 462 P.2d at 427.
These policy considerations apply
just as strongly to investigative stops.
Indeed, in Elson v. State, the supreme court
held that a suspect could not use force to
resist a police officers pat-down search for
weapons, a common aspect of investigative
stops.6 Although the defendant in Elson was
under arrest, the supreme court phrased its
holding in broader terms:
We ... conclude that the rule we adopted in
Miller is applicable to cases involving
physical resistance to a search by the
police. Thus, we hold that a private citizen
may not use force to resist a peaceful search
by one 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.
Elson, 659 P.2d at 1200.
Other jurisdictions that restrict a
persons right to use force to resist arrest
apply the same rule to investigative stops.7
Melson offers no convincing rationale for
distinguishing investigative stops from
arrests on this point.
We therefore hold that a person may
not use force to resist temporary detention
by identified police officers who are
conducting an investigative stop (unless the
officers use excessive force). Melson
concedes that Case did not use excessive
force by grabbing his arm. We thus conclude
that Judge Nolan could properly decline to
give Melsons proposed instruction on his
asserted right to use force to resist the
temporary detention of an investigative stop.
A person has no right to assault an identified police
officer who has entered their home, even if the
person knows or believes that the officers entry
is illegal, if the person has reason to believe
that the officer is engaged in official duties and
if the officer does not use excessive force
Melson also argues that, even if people are
generally not entitled to forcibly resist an
investigative stop, Melson nevertheless was
entitled to use force against Officer Case because
Case reached through the apartment door, thereby
unlawfully intruding into Melsons home.
We assume, for purposes of argument, that
Case was not entitled to reach through Melsons
apartment door to detain Melson in connection with the
investigative stop.8 But even if Cases action amounted
to a trespass, Melson still would not be authorized to
assault Case to end the trespass.
In Napageak v. State, we held that a person
can not forcibly resist an identified police officers
intrusion into their home on official business, even if
the intrusion is illegal.9 (We also decided a related
issue in Jurco v. State: we held that a person is not
entitled to use force to resist an identified police
officer who is attempting to take possession of their
property pursuant to a court decree, even if there is
reason to believe that the decree was issued
illegally.10)
Napageak provides the rule that governs
Melsons case. Even assuming that Case trespassed into
Melsons apartment by reaching through the threshold to
grab Melsons arm, Melson was not entitled to assault
the officer by slamming the door on his arm.
Melsons proposed jury instruction concerning the
interplay between a persons rights under the Fourth and
Fifth Amendments and the municipal offense of resisting
or interfering with a police investigation
Melson was charged not only with assault but
also with the separate offense of resisting or
interfering with a police investigation by fleeing
after having been told to stop, AMC 8.30.010(A)(4).
At trial, Melson argued that this section of the
Anchorage Municipal Code is overbroad, in that it
penalizes some conduct that is protected by the Fourth
and Fifth Amendments to the United States Constitution.
Specifically, Melson argued that no one can be
subjected to criminal penalties for resisting or
interfering with a police investigation if the act of
resistance or interference consists of insisting that
the police have a justifiable reason before they detain
a citizen, or insisting that the police obtain a
warrant before they enter a persons home, or asserting
the right to refuse to answer police questions.
Melson is correct that the government can not
attach criminal penalties to a persons assertion of
rights protected by the Fourth and Fifth Amendments.
But AMC 8.30.010(A)(4) does not criminalize the
generic act of resisting or interfering with a police
investigation. Rather, the ordinance declares that the
offense consists of
intentionally, recklessly, or knowingly
delay[ing] or obstruct[ing] a police officers
active investigation of a crime by fleeing
after having been told to stop.
In other words, the actus reus of this
offense is the act of flight.
In addition to the act of flight,
the Municipality must prove that the
defendants flight occurred after the
defendant was told to stop. Implicitly, the
Municipality must further prove that the
defendant was aware of the officers command
to stop. Compare Kimoktoak v. State, 584
P.2d 25, 29-31 (Alaska 1978), where the
supreme court held that a defendant could not
be convicted of leaving the scene of an
accident without proof that the defendant was
aware that an accident had occurred.
Moreover, the Municipality must prove that
the defendant acted at least recklessly (if
not knowingly or intentionally) with regard
to the possibility that their flight would
delay or obstruct a police officers active
investigation of a crime, and must also prove
that the defendants flight did in fact delay
or obstruct an active police investigation.
Because the actus reus of this
offense is the defendants act of flight, and
not the defendants failure to answer the
officers questions, the ordinance does not
appear to infringe Fifth Amendment rights.
And, in fact, Melson offers no Fifth
Amendment argument on appeal. We therefore
turn to Melsons Fourth Amendment claim.
AMC 8.30.010(A)(4) forbids a
person from fleeing after a police officer
has told the person to stop. Such a command
to stop would not violate the persons Fourth
Amendment rights if the police officer
already had the authority to seize the person
that is, if the officer already had probable
cause to arrest the person or reasonable
suspicion to temporarily detain the person
for an investigative stop.
But the ordinance would raise
significant Fourth Amendment concerns if it
were construed to apply to police-citizen
encounters as defined in Waring v. State, 670
P.2d 357, 363 (Alaska 1983), and Barrows v.
State, 814 P.2d 1376, 1378 (Alaska App. 1991)
that is, if the ordinance applied to
situations where the police have no objective
justification for seizing the person. The
defining quality of a police-citizen
encounter is that the citizen retains the
right to end the contact and walk away.
Cases from other jurisdictions hold that the
government can not impose criminal penalties
on a citizen for exercising Fourth Amendment
rights, even though the citizens exercise of
those rights may delay or obstruct a police
investigation.11
In one sentence of his opening
brief to this Court, Melson argues that the
police officers did not have grounds to
subject him to an investigative stop.
However, as we explained earlier in this
opinion, when this question came up in the
district court, Melson conceded that the
police did have reasonable suspicion for an
investigative stop.
If the officers had grounds for
conducting an investigative stop, then, under
the Fourth Amendment, the officers had the
right to detain Melson temporarily.12 As a
consequence, Melson did not have the right to
flee from the officers when they directed him
to stay.
However, this is not the whole
answer to Melsons Fourth Amendment argument,
because the facts of Melsons case potentially
present a more difficult Fourth Amendment
issue. Given the conflicting testimony at
Melsons trial, it is conceivable that Melson
was already inside his apartment when Officer
Case grabbed his wrist and ordered him not to
leave. Under those facts, it is possible
that Case violated Melsons Fourth Amendment
rights when he reached into Melsons residence
to restrain Melson. On the other hand, it is
also possible that an investigative stop had
already commenced and that Cases actions were
justified by the hot pursuit exception to the
warrant requirement.
This particular Fourth Amendment
issue was not argued in the district court,
nor is it identified in Melsons briefs to
this court. To the extent that the facts of
this case potentially raise this issue, we
conclude that Melson failed to preserve it in
the trial court and, further, that he waived
it on appeal through inadequate briefing.
Conclusion
The judgement of the district court is
AFFIRMED.
_______________________________
1 Anchorage Municipal Code 8.10.010(D) and 8.30.010(A)(4),
respectively.
2 462 P.2d 421, 426-27 & n.4 (Alaska 1969). See Gray v.
State, 463 P.2d 897, 907-09 (Alaska 1970) (recognizing that
an arrestee retains the right to resist officers who use
excessive force).
3 This statute reads, in pertinent part: A person may not
use force to resist personal arrest or interfere with the
arrest of another by a peace officer ... , whether the
arrest is lawful or unlawful, unless ... the force used by
the peace officer exceeds that allowed by AS 11.81.370.
4 553 P.2d 40 (Alaska 1976).
5 See Moreau v. State, 588 P.2d 275, 279-280 (Alaska 1978)
(holding that Fourth Amendment claims can not be raised for
the first time on appeal).
6 659 P.2d 1195, 1200 (Alaska 1983).
7 See, e.g., In re Joseph F., 102 Cal.Rptr.2d 641, 652
(Cal. App. 2000); Evans v. City of Bakersfield, 27
Cal.Rptr.2d 406, 411-12 (Cal. App. 1994); State v.
Diedrich, 410 N.W.2d 20, 23 (Minn. App. 1987); State v.
Clark, 605 N.W.2d 145, 149 (Neb. App. 2000); State v.
Ramsdell, 285 A.2d 399, 402-04 (R.I. 1971); American
Fork City v. Pena-Flores, 14 P.3d 698, 700-01 (Utah
App. 2000); State v. Cormier, 997 P.2d 950, 953-54
(Wash. App. 2000).
8 A police officer normally must obtain a warrant before
entering a residence to make an arrest. See Payton v. New
York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980);
Johnson v. State, 662 P.2d 981, 984 (Alaska App. 1983).
However, there is a hot pursuit exception to this warrant
requirement. See United States v. Santana, 427 U.S. 38, 42-
43; 96 S.Ct. 2406, 2409-10; 49 L.Ed.2d 300 (1976); United
States v. Rohrig, 98 F.3d 1506, 1515-16 (6th Cir. 1996);
Hegarty v. Somerset County, 53 F.3d 1367, 1374 (1st Cir.
1995).
9 729 P.2d 893, 895 (Alaska App. 1986).
10 825 P.2d 909, 913-14 (Alaska App. 1992).
11See, e.g., People v. Hilgenberg, 585 N.E.2d 180, 186
(Ill. App. 1991), where the court held that a person
could not be convicted of obstructing a peace officer
for failing to open their door at the officers request
or otherwise allow the officers warrantless entry into
their premises to conduct an investigation. See also
United States v. Prescott, 581 F.2d 1343, 1350-51 (9th
Cir. 1978):
It cannot be a crime ... for a citizen to refuse entry
to his or her home to a law enforcement officer
who does not have an appropriate warrant. ...
One cannot be penalized for passively asserting
this right, regardless of ones motivation. Just
as a criminal suspect may validly invoke his Fifth
Amendment privilege in an effort to shield himself
from criminal liability, so one may withhold
consent to a warrantless search, even though ones
purpose be to conceal evidence of wrongdoing.
12See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968); Coleman v. State, 553 P.2d 40 (Alaska
1976).
