City of Warrensville Hts. v. Wason

Defendant-appellant Wallace B. Wason (defendant) was convicted of interfering with a police officer in performance of his duties in Warrensville Heights under an ordinance of that municipality. The ordinance provides:

"No person shall resist, hinder, obstruct or abuse any official while such official is attempting to arrest offenders under this Traffic Code. No person shall interfere with any person charged under such sections with the enforcement of the law relative to public streets." Section 303.03, Codified Ordinances of Traffic of Warrensville Heights.

The gist of the alleged offense was that defendant, driving northbound on Dalebridge Road in Warrensville Heights, flashed his headlights at oncoming automobiles to warn them that they were approaching a radar speed trap. There was testimony that traffic slowed after the warning but the record indicates that none of the warned vehicles had been speeding before the warning, and none were exceeding the speed limit as they passed the radar. The lone state witness, a police officer, answered "probably not" to the question whether defendant was doing "anything to interfere or slow down your only duty of being there that day? [sic]." The officer also said he was not attempting to arrest anyone when he approached the defendant other than the defendant himself. Defendant's action occurred about twenty minutes after he had been clocked and cited for speeding southbound on Dalebridge Road. Defendant expressed some annoyance with the police for devoting their energies to traffic violations rather than more serious crimes. These events occurred on April 25, 1975, shortly after 6:30 p. m. (or 7:30 p. m.).

Defendant claimed he was testing his headlights although he conceded they were not necessary for visibility. Defendant appealed assigning two errors which are set out in the margin.¹

Because the assignments raise essentially a single issue, they are treated together. That issue becomes, based on the facts in this case and giving those facts an interpretation most favorable to the city, was defendant guilty of obstruction?

We reverse.

I. Our perception of the issue in this case begins with the propositions that defendant was neither assisting the police in the performance of their duties, nor testing his lights when he behaved as he did. Such excuses are too specious to warrant further comment. Our view of the case also proceeds on the assumption that illegal interference or obstruction can be established without actual physical hinderance.² II. Relatively few reported decisions have addressed the issue in this case.³ Three reported decisions do point the way toward resolution.

In Bastable v. Little (1906), 76 K. B. 77, police officers had marked off several furlongs with spaces between in order to gauge the speed of motor cars passing over the measured distances. The respondent used hand signals, augmented by a newspaper, and verbal warnings of the "police trap" to notify motorists of the police activity. He was convicted of obstruction. The court reversed the conviction relying heavily upon the absence of evidence either that (1) the motorists were actually breaking the law at the time of respondent's action, or (2) that he was acting in concert with them. His knowledge that there was a police trap was apparently not enough,⁴ although this certainly evidences intent.

In a second case, Betts v. Stevens (1909), 79 K. B. 17, officers again were timing to detect automobile speeders. This activity was monitored by appellant Betts in his capacity as a "sergeant" of patrols for the Automobile Association. Betts undertook to signal a slowdown to automobiles. Some of these were marked with "A. A." insignia indicating membership in the association and apparently all slowed enough to come within the speed limit. When the police proceeded to two additional locations in sequence and set up to time speeders, the appellant went along and renewed his activity. On these occasions he warned persons who were exceeding the limit.⁵ He was convicted of obstruction. The conviction was affirmed. The Justices disinguished Bastable v. Little on the ground that in that case there was no evidence of unlawful speed at the time of the warning.⁶ Apparently, neither the Bastable nor Betts court had any problem with the evidence of intent. It is clear, then, that the rationale of the cases depended upon two elements: (1) an intent to warn a third person of the police presence, (2) to prevent detection of an illegal act.

Research has disclosed only one Ohio printed report of a case whose facts approximate those in the present one. In that case,Akron v. Matteson (1972), 63 Ohio Op. 2d 146, 148, the court acquitted the defendant. He was charged under a state statute⁷ couched in language substantially identical with that of the Warrensville Heights ordinance. The court inMatteson at 147-148, aware of Bastable and Betts, reasoned that because there was no evidence of speeders "in or about the area when defendant flashed her lights," a rhetorical question had to be answered. That question was:

"* * * Can we say that these radar officers were ``attempting to arrest offenders' or that some other duties of theirs were affected?"

The acquittal provided a positive "No."

III. An essential condition to quicken the obligation of policemen to enforce the law, whether it be a traffic violation or a more serious offense, is illegality. This does not mean that an officer must restrain himself until an illegal act has climaxed. For instance, he may detain a person flourishing a pistol without waiting for the gun to be fired. But the officer may not make a search for weapons simply because he suspects a person is armed unless and until the suspicion ripens into probable cause or, at least, until the circumstances justify a reasonable man in concluding that he must initiate search action for his own safety.⁸

It follows that one of the elements of obstruction is the presence of an illegal act which generates the policeman's duty to enforce the law. An additional element is interference with intent to impede the performance of that duty. In the present case it is conceded that the defendant did not warn persons who were violating the law. The drivers whom he signalled were not shown to be speeding. The officer was not proceeding, did not intend to proceed and did not have a basis for proceeding, against the persons warned.⁹ Though the intent to warn was clear, the warning was not directed to persons whom the evidence revealed to have been either acting illegally or to have begun activity intended to culminate in illegality. Thus, only one of the two elements necessary to establish an offense was present and the offense was not proved.

Judgment reversed.

PARRINO, J., concurs in the judgment only.

STILLMAN, J., dissents.

¹ Assignment of Error No. 1: "The trial court erred by finding Defendant-Appellant guilty of violating § 303.03 of the Codified Ordinances of Traffic of the City of Warrensville Heights, Ohio, which Ordinance pertains to the misdemeanor of obstructing or interfering with a police officer while making an arrest or in the performance of his duties."

Assignment of Error No. 2: "The trial court erred by finding that Defendant-Appellant obstructed a police officer in the performance of his duties because such a finding is against the manifest weight of the evidence."

The trial court was Bedford Municipal Court which has jurisdiction in Warrensville Heights, Ohio, R. C. 1901.02.

² No "abuse" is involved and it is evident that the words "resist, hinder [or] obstruct" and "interference" in the ordinance are draftsmen's synonyms intended to cover the various nuances implicit in the concept that a police officer does not have to put up with citizen impediments to the performance of his duties. The words are used interchangeably in this opinion. See footnote 14 in Note-Types of Activity Encompassed By theOffense of Obstructing A Public Officer, 108 U. Penn. L. Rev. 388, 389 (hereafter "Note").

³ See footnote 71, "Note," supra.

⁴ Bastable v. Little, id. at 80.

⁵ Betts v. Stevens, id. at 18-19.

⁶ Betts v. Stevens, id. at 22-23.

⁷ R. C. 4511.78 (Repealed 1/1/74; see R. C. 2921.31 and2921.33).

"No person shall resist, hinder, obstruct, or abuse any sheriff, constable, or other official while such official is attempting to arrest offenders under sections 4511.01 to4511.76, inclusive, of the Revised Code. No person shall interfere with any person charged under such sections with the enforcement of the law relative to public highways."

⁸ Terry v. Ohio (1968), 392 U.S. 1, 24, 27.

⁹ "Q. Did the Defendant in front of you do anything to slow traffic? To interfere with your purpose?

"A. I don't know, that would be strictly my opinion.

"Q. Well, if your purpose in being there is to slow traffic, and you say that the Defendant being there, did he interfere with your purpose for being there? Did you have any reason for being there?

"A. Probably not.

"Q. Then you are saying that the Defendant did not do anything to interfere or slow down your only duty of being there on that day?

"A. Probably not, sir.

"Q. At the time you stopped the Defendant, were you attempting to arrest anyone?

"A. At the particular moment that I stopped him?

"Q. For the traffic, speed, or red lights, which violation?

"A. Other than when?

"Q. Other then when you approached the Defendant, were you attempting to arrest anyone?

"A. No."