Diehl v. State

Rodowsky, J.

dissenting:

I respectfully dissent from the reversal by the majority of Diehl’s convictions for resisting arrest. In my judgment there was sufficient evidence from which the jury could find probable cause to arrest for disorderly conduct.

Cross-examination by Diehl’s counsel of Chief Gavin elicited the following:

Q. And now you’re saying that you arrested him because he refused to get back into the car?

A. No sir, I don’t say that.

Q. Alright. Why did you arrest him?

A. I advised him to get back into the vehicle, advised him several times. He began screaming obscenities saying "Fuck you. I know my rights.” I kept telling him to get back into the car, that I had no dealings with him. There was strictly a car stop for spinning wheels.

Q. And then you did arrest him because he would not get back into the car?

A. No, I arrested him because he was screaming obscenities and he was drawing a crowd.

Q. And he said "Fuck you”?

*481 A. Several times.

Q. Several times? And then you arrested him?

A. After I advised him that if he didn’t get back into the car that I would arrest him, yes, I did.

Q. So really you arrested him because he refused to get back into the car?

A. No sir. [Emphasis added.]

Previously Gavin had testified that Diehl was "yelling” obscenities and that his tone of voice was "[l]oud and hostile.” Gavin said that people "were beginning to gather” but he could not tell where they were coming from because he was directing his attention to Diehl and to the driver, Golden, at the time. When asked to estimate the number of people on the parking lot, Gavin said:

At the time of the car stop there was very few. Within a short time after, they were on the street, across the street and people were stopping and looking.

Under hornbook law, this testimony established a prima facie case of garden variety disorderly conduct. L. Hochheimer, Crimes and Criminal Procedure (2d ed. 1904) § 392, states that "collecting a crowd or numbers of persons in a public place by means of loud and unseemly noises or language” was a crime at common law.

This Court said the same in Drews v. State, 224 Md. 186 , 167 A.2d 341 (1961), vacated and remanded on other grounds, 378 U.S. 547 , 84 S. Ct. 1900 , 12 L. Ed. 2d 1032 (1964), reaffirmed on remand, 236 Md. 349 , 204 A.2d 64 (1964), appeal dismissed and cert. denied, 381 U.S. 421 , 85 S. Ct. 1576 , 14 L. Ed. 2d 693 (1965).

It is said that there was no common law crime of disorderly conduct. Nevertheless, it was a crime at common law to do many of the things that constitute disorderly conduct under present day statutes, such as making loud noises so as to disturb the peace of the neighborhood, collecting a crowd in a public place by means of loud or unseemly noises or *482 language, or disturbing a meeting assembled for religious worship or any other lawful purpose. Hochheimer on Crimes and Criminal Procedure, Sec. 392 (2nd Ed.); 1 Bishop on Criminal Law, Sec. 542 (9th Ed.); Campbell v. The Commonwealth, 59 Pa. St. Rep. 266.

The gist of the crime of disorderly conduct under Sec. 123 of Art. 27, as it was in the cases of common law predecessor crimes, is the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area. 3 Underhill, Criminal Evidence, Sec. 850 (5th Ed.), adopts as one definition of the crime the statement that it is conduct "of such a nature as to affect the peace and quiet of persons who may-witness the same and who may be disturbed or provoked to resentment thereby.” [ 224 Md. at 192 , 167 A.2d at 343-44 (emphasis added).]

Judge Orth, writing for the Court of Special Appeals in Matter of Nawrocki, 15 Md. App. 252, 257 , 289 A.2d 846, 849 (1972), said with respect to § 121: "We do not believe it necessary that the State prove such other persons in fact heard the noises; it would be sufficient if they were passing by or along the highway so that reasonably they may have heard them.” See also State v. Johnson, 112 Ariz. 383 , 542 P.2d 808 (1975).

It seems to me necessarily to follow that Gavin had probable cause to arrest for disorderly conduct.

The Court holds that, under the circumstances of the instant case, the evidence was legally insufficient to convict for disorderly conduct. This is because the loud and unseemly language which was being yelled by Diehl and which was drawing a crowd constituted speech. I agree that Diehl’s "speech” was directed to Gavin as a protest. Diehl was protesting what he considered to be an unjustifiable directive from Gavin. Because Diehl’s conduct was protected by the First Amendment, in order to present sufficient evidence to support a conviction the State must show more than *483 loud and unseemly noises which were drawing a crowd. When the noise is also speech, the additional elements of disorderly conduct, as defined by the majority, are conduct which advocates "imminent lawless action and [which is] likely to incite a breach of the peace . ...” I agree that in this case there was no proof that the additional elements existed at the time the arrest was made.

But insufficiency of the evidence to convict is not to be equated with an absence of probable cause. See Gueory v. District of Columbia, 408 A.2d 967 (D.C. 1979) (affirming, based on probable cause as a matter of law, a directed verdict in favor of a police officer, as defendant in a civil action of false arrest for disorderly conduct, when the plaintiff had previously been acquitted of the criminal charge); State v. Dwyer, 317 So. 2d 149 (Fla. Dist. Ct. App. 1975) (acquittal on a charge of disorderly conduct does not bar a subsequent prosecution for resisting the disorderly conduct arrest which need only be based on probable cause); State v. Velas, 537 S.W.2d 881 (Mo. Ct. App. 1976) (jury verdicts of not guilty of disorderly conduct but guilty of resisting arrest are not inconsistent, because the latter offense requires only probable cause to make the arrest lawful); State v. Harris, 286 N.W.2d 468 (N.D. 1979) (passenger in car stopped by police was lawfully arrested for disorderly conduct when he used loud and abusive language to the police, so that seizure of drugs incident to arrest was proper even though passenger was never charged with disorderly conduct). 1

Because of the overlay of the First Amendment on the facts of this case, the Court has construed § 121 to require additional elements beyond the garden variety, public nuisance type of disorderly conduct for which Diehl was arrested. These additional requirements have been enunci *484 ated in order to avoid an unconstitutional application of the statute. From the standpoint of probable cause, I see no reason to treat the arrest made by Gavin in this case differently than an arrest made under a statute which is later declared to be unconstitutional.

In Michigan v. DeFillippo, 443 U.S. 31 , 99 S. Ct. 2627 , 61 L. Ed. 2d 343 (1979), the defendant had been arrested for violation of a Detroit ordinance which made it unlawful for a person stopped by a police officer to refuse to identify himself. A search of the defendant incident to the arrest revealed controlled substances for the possession of which the defendant was convicted in the trial court. This conviction was reversed by the Michigan Court of Appeals which held the ordinance to be unconstitutionally vague and which held both the arrest and search to be invalid. The United States Supreme Court reversed and remanded because the search was incident to a valid arrest. The Court first pointed out that the

validity of the arrest does not depend on whether the suspect actually committed a crime; the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest. We have made clear that the kinds and degree of proof and the procedural requirements necessary for a conviction are not prerequisites to a valid arrest. [Id. at 36, 99 S. Ct. at 2631 , 61 L. Ed. 2d at 349 .]

The arresting officer in DeFillippo had had probable cause to believe that the defendant’s conduct violated the terms of the ordinance, and the subsequent invalidation of the ordinance did not extinguish the probable cause for the arrest. At the time of the arrest

there was no controlling precedent that this ordinance was or was not constitutional, and hence the conduct observed violated a presumptively valid ordinance. A prudent officer, in the course of determining whether respondent had committed an *485 offense under all the circumstances shown by this record, should not have been required to anticipate that a court would later hold the ordinance unconstitutional. [Id. at 37-38, 99 S. Ct. at 2632 , 61 L. Ed. 2d at 350 .]

See also Johnson v. Palange, 406 A.2d 360 (R.I. 1979); State v. Roper, 274 S.C. 14 , 260 S.E.2d 705 (1979).

Here, Officer Gavin, while being vulgarly abused by a person whose yelling and screaming was drawing a crowd, was, in my view, entitled to rely on the terms of the statute and on the case law statements of what traditionally has constituted disorderly conduct. Gavin was not required to anticipate that this Court would hold that there was an absence of legally sufficient evidence to support a conviction unless he waited for Diehl to advocate imminent lawless action by the gathering crowd. Few, if any, lawyers would be able to produce split second precognition of a First Amendment holding under the circumstances faced by Gavin.

Nevertheless, the majority holds that Gavin was justifiably roughed about while attempting to effect the arrest, because it is said that his direction to Diehl to get back into Golden’s car was "unlawful.” " '|P]robable cause’ to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, supra, 443 U.S. at 37 , 99 S. Ct. at 2632 , 61 L. Ed. 2d at 349-50 . Diehl was not arrested for failure to obey the lawful command of a police officer. The arrest was for drawing a crowd by loud and unseemly noises.

However, the lawfulness vel non of Gavin’s order was not an issue which was presented in the trial court. Diehl did not request any instruction that the order to get back into the automobile was unlawful and did not except to the failure of the trial court to instruct the jury that the order was unlawful. Diehl’s counsel did not argue to the jury that the order was unlawful. In his brief in this Court, Diehl did not argue that the order was unlawful. His point on the *486 invalidity of the arrest was that "no obscenities were uttered and ... no one was disturbed by any loud statements made by” him.

The way this case was tried, Gavin’s order was treated as one of the factual circumstances which was before the jury. On the charges of resisting arrest, the jury was instructed in terms of probable cause to arrest. The guilty verdicts on the resisting arrest counts reflect a jury finding of probable cause. Thus the issue on this appeal is whether the evidence was legally insufficient even to support a finding of probable cause to arrest. For the reasons previously stated, I believe the facts were sufficient to constitute probable cause to arrest for disorderly conduct.

But even if in some way the lawfulness of Gavin’s order becomes dispositive of probable cause to arrest for disorderly conduct, its lawfulness should be measured by the test set forth in Drews v. State, supra, 224 Md. at 193 , 167 A.2d at 344 . There we quoted with approval from People v. Galpern, 259 N.Y. 279, 284-85 , 181 N.E. 572, 574 (1932) to the effect that the refusal to obey an order (to move on) of a police officer " 'can be justified only where the circumstances show conclusively that the police officer’s direction was purely arbitrary and was not calculated in any way to promote the public order.’ ”

The facts of the instant case occurred beginning about 10:25 p.m. on a Tuesday night. Officer Gavin was alone in his patrol car, parked on the lot of a market at Virginia Avenue and Main Street in Hancock. He first heard squealing wheels and then observed a Cougar, westbound on Main Street, stopping and spinning wheels. One headlight was out. When he pulled the car over on the A & P parking lot, about 75 feet away, there appeared to be five or six occupants of the car. Under the defense testimony, there were three occupants of the car, other than Diehl, all of whom were men. Two were age 26 and one age 35. Diehl was 38 years old. Gavin radioed for a backup because of the manner in which the Cougar was being operated and because of the number of people in the vehicle. He did this for his "own safety.” When the Cougar was stopped, Golden *487 got out from the driver’s side and Diehl got out from the passenger side. It is at this point that Gavin told Golden and Diehl to get back into the car. Golden complied, but Diehl began disputing the request. There is no direct evidence that Diehl got out in order to walk away. The inference is that Diehl got out in order to inject himself into Gavin’s concern with Golden’s method of driving.

On cross-examination by Diehl’s counsel Gavin then testified:

Q. Well, now at that time what had Diehl done that was in your opinion a violation of the law?

A. At that point to get back in the car, no problem. I just wanted to maintain the scene for my own safety.

Q. Well, you had already radioed for help?

A. Yes sir, but it’s a long time in coming up in Hancock.

Q. Were you concerned about your safety?

A. Sir, I’m always concerned about my safety.

Q. And you felt you couldn’t handle the situation?

A. I felt that ...

[STATE’S ATTORNEY]: Objection.

THE COURT: Sustained. He didn’t say that. He said he was concerned. He had a right to be, he’s got a carload of people in front of him and he’s by himself.

As matters actually developed, the first assistance to arrive on the scene was a Department of Natural Resouces officer who had been in the market to the east on Main Street where Gavin had originally observed the Cougar. That officer was told by someone who came into the store that there was a fight at the A & P parking lot. The radio backup was a State Police trooper who placed his arrival at the A & P lot at 10:32 p.m.

When Gavin, alone at night, was confronted with two men simultaneously getting out of a car in which there were other young male occupants, when he knew from the way in *488 which the car had been driven that he might be dealing with persons who were intoxicated, and when he knew that his backup might be a long time coming, it was not unreasonable as a matter of law that Gavin, for his own protection, direct the occupants, including Diehl, back into the car so that Gavin "could maintain order at the scene” because he "felt if everyone is getting out of the car, it would be chaotic.”

For these reasons I would affirm the judgments of guilty of resisting arrest.

Chief Judge Murphy and Judge Smith have authorized me to state that they join in the views expressed in this dissenting opinion.

. Indeed, in a number of decisions disorderly conduct convictions have been based on the use of loud and abusive language to a police officer when third persons were present in, or attracted to, the area. See, e.g., City of Chicago v. Morris, 47 Ill. 2d 226 , 264 N.E.2d 1 (1970); People v. Scheck, 42 Ill. App. 2d 117 , 191 N.E.2d 645 (1963); Whited v. State, 256 Ind. 386 , 269 N.E.2d 149 (1971), clarified, 256 Ind. 618 , 271 N.E.2d 513 (1971); Commonwealth v. Harris, 101 Mass. 29 (1869); People v. Doyle, 21 Misc. 2d 38 , 195 N.Y.S.2d 770 (1960); People v. Jones, 63 N.Y.S.2d 399 (1946).