Brown v. City of Oklahoma City , 1986 Okla. Civ. App. LEXIS 46 ( 1986 )

BRIGHTMIRE, Presiding Judge.

The determinative questions for resolution are these: (1) was the warrantless search of plaintiffs residential premises and seizure of her automobile unreasonable and therefore illegal? And, if so, (2) did plaintiff have a right to resist the wrongful seizure and ensuing arrest with reasonable force?

We answer both questions affirmatively and reverse the summary judgment rendered below.

I

The operative facts are embodied in the following stipulation of the parties:

“1. That on March the 6th, 1979, Officers Englebretsen and Citty received a radiogram from the Oklahoma City Police Department indicating that one Darrell Brown, a black male, 27 years of age, six feet one inch tall, and 175 pounds, possible address 4025 N.E. 19th and possible vehicle a 1975 Cadillac sedan two-door, tag 78 OK XR-1539, had committed the felony of defrauding an innkeeper at the Habana Inn in Oklahoma City....

2. That the radiogram directed the officers to place Allen [sic] Brown under arrest.

3. That on March the 6th, 1979, Officers Englebretsen and Citty went to the residence of Darrell Brown as set forth in the radiogram ... and observed a Cadillac backed into the garage with the garage door remaining open; that the car in the garage was a 1974 four-door Cadillac; that the officers walked into the garage to observe the tag and to match the tag listed in the radiogram.

4. That thereafter the officers went to the door of the residence and knocked; that the plaintiff herein, Thecia Brown, answered the- door; that the officers inquired as to whether or not Darrell Brown was home whereupon they were advised by Mrs. Brown that he was not; that the officers requested permission to search the home for his person and were refused by Mrs. Brown; that thereafter the officers advised Mrs. Brown that they were impounding the Cadillac in the garage for the reason that it was used in the commission of a felony; that Thecia Brown refused to give her permission to the officers to remove the car and asked the officers for some authoritative papers for the seizure of her car. That there was some discussion about the officers’ authority to seize the Cadillac.

5. That at the time of entry upon Mrs. Brown’s property the officers did not have a search warrant.

6. That the vehicle sought to be impounded was the property of Darrell and Thecia Brown.

7. That the officers called a wrecker service to remove the Cadillac from the garage; that in order to remove the Cadillac the other vehicle (Toyota) belonging to Thecia Brown must have been removed to reach and attach the Cadillac; that the officers requested Thecia Brown to remove her vehicle (Toyota) and she refused; that the officers ordered the wrecker service to remove the Toyota so that they could impound the Cadillac.

8. That Thecia Brown actively resisted and interfered with the removal and seizure of the Toyota and Cadillac at which time Thecia Brown was placed under arrest and that she resisted her arrest.

9. That Thecia Brown was booked into the City Jail and charged with interfering with official process, grabbed wrecker driver and officers.”

The charges against plaintiff were later dismissed according to the petition and this action was brought to recover damages, both compensatory and punitive, for false arrest, false imprisonment, assault and battery, and malicious prosecution.¹

The case came on for trial February 8, 1982. It was at that time the parties entered into the foregoing stipulation of facts and asked the court to judicially determine the lawfulness of the seizure on the basis of such facts. The thinking of the parties, according to defendants, was that under the agreed facts the validity of plaintiffs cause of action hinged on the answer to the following questions of law which were submitted to the court:

1. Did “the police officers ha[ve] the right to seize the [Cadillac] automobile?”

2. Did the police officers have the right “to arrest the plaintiff and to file charges against her for interfering with the police officer in the conduct of his official duties?”

The trial court apparently answered both of these questions affirmatively and rendered judgment in favor of defendants. An earlier appeal was dismissed by this court because it was premature.² Upon remand the defect was cured and this appeal was lodged.

II

The first issue raised — whether the war-rantless search of Brown’s garage and the seizure of the Cadillac automobile located in it were constitutionally unreasonable and therefore unlawful — is answered in the affirmative.

Unreasonable searches and seizures of one’s person, home or property are prohibited by both the Fourth Amendment of the United States Constitution and Article 2, § 30 of our state constitution — two identical provisions which the courts construe liberally in favor of the individual whose right of privacy they are designed to protect. United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932). A warrantless search is “per se unreasonable.” Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Case v. State, 519 P.2d 523 (Okl.Cr.1974). With regard to one’s home the protection extends to the entire curtilage which includes, among other things, garages, sheds, barns and the like. Luman v. State, 629 P.2d 1275 (Okl.Cr.1981). “The right of the people to be secure in their ... houses ... shall not be violated,” is the unequivocal Fourth Amendment command. It forms the foundation for a man’s right “to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734 (1961). And in “terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house,” proclaimed the nation’s highest tribunal in Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980). “Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant,” the court added.

Here there exists no fact or circumstance which furnishes a legal reason or probable cause for either the search or the seizure. The stipulated facts are that Oklahoma City Police Officers Englebret-sen and Citty received a “radiogram” on March 6, 1979, “from the Oklahoma City Police Department indicating that one Darrell Brown ... had committed the felony of defrauding an innkeeper ... [and] directed the officers to place ... Brown under arrest.” That is all they were directed to do — place Brown under arrest. Presumably to aid them in locating the suspect, the message mentioned a “possible address” where he might live and the description and tag number of a “possible vehicle” — a 1975 Cadillac two-door sedan. For while the relevance of the automobile information or its connection with the suspect or his contemplated apprehension was not disclosed in the radio dispatch, it is logical to conclude that the information was provided to aid in locating Brown and not for seizure of the vehicle. In any event we know for a fact the radiogram did not say the car was used or involved in the commission of any felony, or even that Darrell Brown owned it.

It is significant that the defending officers admit they drove to the given address where from the street they saw the front end of a Cadillac protruding from an open garage in front of which was parked plaintiff’s Toyota. Instead of first seeking a search warrant — which doubtless would have been denied — the officers invaded plaintiffs private property, proceeded to enter the garage and began a search by checking the tag number on the back of the Cadillac. Upon finding that the number matched the “possible vehicle” mentioned in the dispatch, the officers went to the house door, knocked, and inquired of Mrs. Brown about the presence of Darrell Brown. Upon being advised the suspect was not home and upon being refused permission to search the home for him the officers said they would seize the Cadillac because “it was used in the commission of a felony,” — an arbitrary act which could not have been accomplished by court order without an evidentiary hearing. And so, over the objection of Mrs. Brown, the officers called a wrecker and forsaking due process of law, proceeded to forcibly exercise dominion over her Toyota and her Cadillac.

Thus, it is that at this point subject question emerges — did the officers have a right to seize the vehicle? The trial judge concluded they did. His reasoning was that the information in the radio transmission provided the officers with “probable cause to search for and to arrest the suspect Darrell Brown” and once on his premises they had a right to carry out a search if they saw anything that “could be used [as evidence] in the trial of the suspect;” and that the officers “inadvertently discovered” the front end of a Cadillac in “plain view.”

Although the judge conceded that “the automobile was probably not used in the commission of the offense,” he “nevertheless [found that] it was valuable evidence in the commission of the crime.”

The trouble with the trial judge’s theory is two-fold. One, it is supported by neither facts nor law. He assumed facts not contained in the stipulation, e.g. that the Cadillac “was valuable evidence in the commission of the crime.” And two, he ignored the fact that, even if it was, there is nothing in the stipulated facts to suggest that the officers did not have ample time to procure a search warrant. Certain it is the Cadillac was not committing any offense in the presence of the officers; nor had it defrauded an innkeeper and there was no evidence that the car had been involved in the commission of a crime. Sitting as it was in a garage, it cannot be said that the Cadillac could aid in either the apprehension or, as we have said, the conviction of the wanted suspect.

Quite the contrary, the stipulated facts suggest only an audacious and unrestrained intrusion onto the Browns’ private domain far beyond the permissible front' door inquiry. Crushed were the fundamental rights of a single protesting citizen beneath the grinding boot heel of uniformed government agents with all the cold callousness of an imperial executioner.³ Nor did their armed aggression cease until the invaders had criminally assaulted and shackled the property owner, dispossessed her of her Toyota and her Cadillac, deprived her of her freedom, humiliated her and imprisoned her — all without due process of law.⁴

III

We turn now to the second issue — whether plaintiff had a right to resist the unlawful invasion of her home and trespass on her Toyota car.

We conclude she did have. Though an attempt to prevent an unlawful seizure differs from resistance to a false arrest, the two actions are similar in nature and the right to do both has been upheld by our court of criminal appeals,⁵ as well as the United States Supreme Court.⁶ Moreover, one’s right to disobey an unlawful command of a police officer has been recognized.⁷ The refusal to cooperate in confiscatory acts of authorities and the resistance of such acts has long been recognized as one of the fundamental rights of the American people. The ravaging of colonists’ homes by British officers furnished a major premise for the Declaration of Independence and later an important stimulus for our adoption of the Fourth Amendment. We shall therefore determine the scope of these rights and apply the controlling general principles to the factual situation presented here.

As early as 1710, English common law recognized the right of an individual to resist an unlawful arrest by a police officer so long as the resistance was reasonable and stopped short of killing him.⁸ And likewise American common law has generally upheld a citizen’s right to defy unlawful police action.⁹ This is an inherent in-tegrant of liberty. For certain it is that the keystone of the arch of freedom in this country is the legal concept that law enforcement officers are employed for the sole purpose of protecting the rights of citizens — not trampling them. In contrast to the average citizen, a police officer is or should be trained to understand and recognize the legal nature, extent and limits of his official authority. The privilege to pack a gun and wear a badge carries with it the concomitant obligation to be aware of and to observe the bounds of specifically circumscribed police enforcement authority and duties. Unless this principle is strictly adhered to, both individual as well as collective liberty is jeopardized; it soon withers to the point where the one who is supposed to be protected becomes the victim, the land of the free becomes a police state, and the home of the brave becomes the quarters of the enslaved.

As indicated earlier, the court of criminal appeals in this state, in line with the vast majority of jurisdictions,¹⁰ has long recognized one’s right to resist an illegal arrest. Walters v. State, 403 P.2d 267 (OkLCr. 1965); Davis v. State, 53 Okl.Cr. 411, 12 P.2d 555 (1932). A few jurisdictions in recent years have placed various restrictions on the common law right to resist a false arrest in situations where the arres-tee knows the arrestor to be a law enforcement official performing his duty albeit illegally.¹¹ Various reasons have been advanced for limiting the common law right of resistance but the principal hypothesis is that force begets force, as one court put it, and “violence is not only invited but can be expected,” as another court stated it.¹²

We do not, however, think this type of reasoning is sound. The existence of a right to resist should not depend on whether it is prudent for the individual to exercise it. If a law enforcer is engaged in the commission of a crime or is trespassing on one’s person or property, it makes no sense to us that the rights of the victim of such unlawful acts should be less than those he has if the wrongdoer is not a police officer. To be sure it ordinarily would not be wise for the victim to resist too vigorously particularly if he suddenly finds himself looking down the persuasive barrel of a .38 revolver. The same thing, for that matter, can be said with regard to exercising one’s right to resist a mugger or hijacker. But should such right be forfeited because it might lead to violence and someone might get hurt? Surely not. The risk of harm in resisting a robber is not, in our view, a sensible reason for judicially declaring that one has no right to resist a criminal act. In regard to defying an armed police officer we find it hard to imagine circumstances in which we would attempt to exercise such right beyond perhaps verbal remonstration. For the sake of self-preservation due respect would surely be paid to a loaded firearm. But the alternative of denying the right, it seems to us, would create the potential for greater mischief — a license for unrestrained wielding of arbitrary power eventually degenerating into gestapo and KGB-type terrorism — in short a police state. Moreover, it would require forsaking the individual’s inherent right to liberty guaranteed in our state constitution.¹³ Of course, there may exist some rare situation where a legitimate government interest may override the individual’s right. The principle we embrace, however, is one that reaches a rational compromise between such competing interests — one that does not exalt unlawful police authority over individual rights. For in the final analysis if our government is to be in fact what we continually proclaim it to be in theory — one of laws not men — the freedom to refuse to obey a patently unlawful order of a police officer and the freedom to resist his trespasses, his unlawful efforts to seize property and effect illegal arrests, is fundamental and must remain inviolate. Indeed, on an international political level and in a context differing only in degree, the United States government and its allies following World War II sponsored the concept that one has not only the right but the duty to resist, if not disobey, laws and orders that violate human rights bestowed by the universal law of nature. Thus, during the war crime trials at Nuremberg, citizens of the defeated axis nations were tried, convicted and punished for enforcing government laws and legal orders which the victors concluded involved the commission of criminal conduct violative of inherent natural rights of all men.

Here the facts indicate that resistance to the police invasion began when Mrs. Brown refused to consent to a warrantless search of her home and to the removal of either her Toyota or Cadillac. She specifically declined to move her Toyota and grabbed a wrecker driver in a bid to prevent his unlawful trespass on her car. For this she was arrested — another unlawful act which she unsuccessfully attempted to prevent by trying to free herself from the officers’ grip.

The stipulated facts clearly establish liability of the defendants for their intentional tortious acts. Mrs. Brown’s defiance of and interference with the wrecker driver’s molestation of her car was not excessive. Though not joined as a party defendant, the wrecker man removed the cars at the wanton request of defendant City’s police officers who were either incompetently ignorant of their legal authority or who knew that what they were doing was illegal and acted with outrageous maliciousness.

IV

The summary judgment is vacated and the cause is remanded for further proceedings consistent with the foregoing opinion.

RAPP, J., concurs specially. STUBBLEFIELD, J., dissents.

1 . She divides her petition into what she calls four causes of action. We think, however, there is but one cause of action pleaded and that is one for damages arising out of one factual sitúation. Plaintiff seeks only a single remedy— damages — and the various tortious acts alleged all emanate from and were committed in the course of the occurrence complained of, namely, the wrongful search, seizure, and invasion of plaintiff’s privacy. A good discussion of the problem is in Retherford v. Halliburton Co., 572 P.2d 966 (Okl.1977); see also Mann v. State Farm Mutual Automobile Insurance Co., 669 P.2d 768 (Okl.1983).

2 . Brown v. City of Oklahoma City, No. 58,228, decided August 2, 1983.

3 . While it goes beyond the stipulated facts there is deposition evidence in the record thát supports a finding of incredible oppressiveness on the part of the officers punctuated with an attitude that plaintiff was subhuman. For instance, when Mrs. Brown tried to find out what was going on and why her right of privacy had been disregarded, she was told to "shut up.” She continued to press for an explanation while standing behind the Toyota between the two officers. Finally one grabbed her arm and twisted it behind her. The other grabbed the other arm and forced her toward the squad car. She refused to get in and while being crammed in by the policemen her brother came up. “Back that nigger off,” barked one of the officers. Finally, after being forced into the police car Mrs. Brown expressed concern for her three little children in the house. “I asked him [the officer],” she testified, "that [sic] I would speak to one of my family members to make some arrangements for my children, and one of the officers said he will call the animal shelter to call them up.”

Then they took the mother away.

In the jail she was strip searched, abused and insulted before being released many hours later.

4 . 21 O.S.1981 § 535 reads:

"Every public officer or person pretending to be a public officer, who under the pretense or color of any process or other legal authority, arrests any person, or detains him against his will, or seizes or levies upon any property, or dispossesses anyone of any lands or tenements without due and legal process, is guilty of a misdemeanor.”

5 . See Billings v. State, 14 OkLCr. 12, 166 P.2d 904 (1917), upholding right to resist unlawful seizure; and Davis v. State, 53 OkLCr. 411, 12 P.2d 555 (1932), acknowledging right to resist unlawful arrest.

6 . See, e.g., Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 (1900).

7 . Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963), saying, "Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution."

8 . The Queen v. Tooley, 2 Ld.Raym. 1296, 92 Eng. Reprint 349 (1709).

9 . See Annot., 44 A.L.R.3d 1078 (1972).

10 . Id

11 . Id at 1087-91. See also obiter dicta in State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977), a case involving resistance of an illegal search warrant — a materially distinguishing factor.

12 . See excerpts from cases cited in State v. Hatton, 116 Ariz. 142, 568 P.2d 1040, 1045-46 (1977).

13 . Okla. Const, art. 2, § 2. It reads: All .persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.