Whaley v. State

McMurray, Presiding Judge,

dissenting.

“An essential element of the offense of obstruction of an officer is that the officer be engaged ‘in the lawful discharge of his official duties.’ [OCGA § 16-10-24.]” Dixon v. State, 154 Ga. App. 828 (1) (269 SE2d 909). I would hold that defendant’s arrest was illegal and that consequently he was entitled to resist. Therefore, I respectfully dissent.

Defendant was in his home at the time he was directed to accompany Officer Whittington to receive a citation for violating the noise ordinance. “An arrest is complete whenever the liberty of a person to come and go as he pleases is restrained, even though the arresting officer does not expressly inform the person that he is under arrest.” Williams v. State, 166 Ga. App. 798, 799 (1) (305 SE2d 489). “Restraint of one’s liberty, no matter how slight, constitutes an arrest. Clements v. State, 226 Ga. 66 (2) (172 SE2d 600).” Strong v. State, 231 Ga. 514, 518 (202 SE2d 428). See also OCGA § 17-4-1; Aguero v. State, 169 Ga. App. 462, 464 (2) (313 SE2d 735); Tolbert v. Hicks, 158 Ga. App. 642 (281 SE2d 368); Collier v. State, 244 Ga. 553, 561 (261 SE2d 364).

Defendant’s presence in the public domain was involuntary, he was there only at the direction of the arresting police officer. Presence in the public domain under these circumstances cannot supply one of the elements of public drunkenness. Marshall v. State, 70 Ga. App. 106 (27 SE2d 702).

As to the alleged violation of a noise ordinance, we note that there was a complete failure of proof as to the language of the ordinance. Neither this court nor the trial court may take judicial notice of a local ordinance. Dudley v. State, 161 Ga. App. 310 (1) (287 SE2d 763). In the absence of any knowledge of the provisions of the local noise ordinance I would not hold that the officers possessed probable cause to arrest defendant for a violation thereof.

Furthermore, in regard to the authority for the arrest for violation of the unproven noise ordinance, the uncontradicted evidence is that Officer Guest was not the arresting officer. Neither of the other two officers, including Officer Whittington, the arresting officer, heard the offensive noise (loud stereo music). In the absence of a warrant or any personal knowledge of the misdemeanor offense Officer Whittington and Sergeant Harper were without authority to arrest defendant for violation of the noise ordinance. “[A] warrant is required for arrest when the offense is limited to violation of a municipal ordinance if the illegal conduct does not occur in the presence of the officer.” State v. Koon, 133 Ga. App. 685, 688 (1) (211 SE2d 924).

Also, the arrest of defendant in his home without a warrant, without defendant’s consent or exigent circumstances, was in violation of the Fourth Amendment. Thompson v. State, 248 Ga. 343 (1) (285 SE2d 685).

The citation for disorderly conduct apparently arises from the same conduct as that for which defendant was eventually prosecuted, that is, resisting arrest. We note in this regard that the evidence suggests no use of force by defendant beyond that directed towards obtaining his release. Where, as in the case sub judice, an arrest is not lawful, the person sought to be arrested has the right to resist. Mullis v. State, 196 Ga. 569, 579 (7) (27 SE2d 91). See also Porter v. State, 124 Ga. 297 (1) (52 SE 283). While defendant’s conduct might have been described as impudent it was not such as to furnish justification for the deprivation of defendant’s liberty. Jenkins v. State, 3 Ga. App. 146, 148 (59 SE 435).

Applying the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), to the particular facts and circumstances of the case sub judice, and pursuant to Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436), I would hold that the evidence adduced at trial was not sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the offense of obstruction of a law enforcement officer in the lawful discharge of his official duties.

Decided July 15, 1985. Barry Hazen, for appellant. Ralph Bowden, Jr., Solicitor, Henry Newkirk, Assistant Solicitor, for appellee.

I am authorized to state that Judge Sognier joins in this dissent.