Weston White
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QUOTATIONS CONTINUED—RESISTING UNLAWFUL ARRESTS
Bad Elk v. United States, 177 U.S. 529, 535, 537-538 (1900): “At common law, if a party resisted arrest by an officer without warrant and who had no right to arrest him, and if in the course of that resistance the officer was killed, the offense of the party resisting arrest would be reduced from what would have been murder if the officer had had the right to arrest, to manslaughter. What would be murder if the officer had the right to arrest might be reduced to manslaughter by the very fact that he had no such right. So an officer at common law was not authorized to make an arrest without a warrant for a mere misdemeanor not committed in his presence. … If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.
The occasion of the trouble originated in Gleason’s orders to arrest him and in the announced intention on the part of the policemen, which they endeavored to accomplish, to arrest the plaintiff in error that night and take him to the agency, and all that followed that announcement ought to be viewed in the light of such proclaimed intention. And yet the charge presented the plaintiff in error to the jury as one having no right to make any resistance to an arrest by these officers, although he had been guilty of no offense, and it gave the jury to understand that the officers, in making the attempt, had the right to use all necessary force to overcome any and all opposition that might be made to the arrest, even to the extent of killing the individual whom they desired to take into their custody. Instead of saying that plaintiff in error had the right to use such force as was absolutely necessary to resist an attempted illegal arrest, the jury were informed that the policemen had the right to use all necessary force to arrest him, and that he had no right to resist. He, of course, had no right to unnecessarily injure, much less to kill, his assailant; but where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction when the officer had the right to make the arrest from what it does if the officer had no such right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”
Carroll v. United States, 267 U.S. 132, 157 (1925): “In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause. United States v. Kaplan, 286 Fed. 963, 972.”
United States v. Di Re, 332 U.S. 581, 594-595 (1948): “The Government also makes, and several times repeats, an argument to the effect that the officers could infer probable cause from the fact that Di Re did not protest his arrest, did not at once assert his innocence, and silently accepted the command to go along to the police station. One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases. But courts will hardly penalize failure to display a spirit of resistance or to hold futile debates on legal issues in the public highway with an officer of the law. A layman may not find it expedient to hazard resistance on his own judgment of the law at a time when he cannot know what information, correct or incorrect, the officers may be acting upon. It is likely to end in fruitless and unseemly controversy in a public street, if not in an additional charge of resisting an officer. If the officers believed they had probable cause for his arrest on a felony charge, it is not to be supposed that they would have been dissuaded by his profession of innocence.
It is the right of one placed under arrest to submit to custody and to reserve his defenses for the neutral tribunals erected by the law for the purpose of judging his case. An inference of probable cause from a failure to engage in discussion of the merits of the charge with arresting officers is unwarranted. Probable cause cannot be found from submissiveness, and the presumption of innocence is not lost or impaired by neglect to argue with a policeman. It is the officer’s responsibility to know what he is arresting for, and why, and one in the unhappy plight of being taken into custody is not required to test the legality of the arrest before the officer who is making it.
The Government's last resort in support of the arrest is to reason from the fruits of the search to the conclusion that the officer’s knowledge at the time gave them grounds for it. We have had frequent occasion to point out that a search is not to be made legal by what it turns up. In law, it is good or bad when it starts, and does not change character from its success.
We meet in this case, as in many, the appeal to necessity. It is said that, if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment. Taking the law as it has been given to us, this arrest and search were beyond the lawful authority of those who executed them. The conviction based on evidence so obtained cannot stand.”
In Coverstone v. Davies, 38 Cal.2d 315 (1952), Justice Carter DISSENTING, along with Justice Schauer CONCURRING: “There is also evidence in the record from which it could be found that the complaint was filed by the police officers against these plaintiffs to avoid the possibility of lawsuits for false arrest and imprisonment. Mr. Mock, father of one of the plaintiffs, testified that Captain Cook, one of the defendants here, called him to his office and remarked that a complaint had not been filed against the boys but that unless they (the police) were released from liability they would have to do so to protect themselves. In Franzen v. Shenk, 192 Cal. 572, 580-583 [221 P. 932], it was said: “... if it appears anywhere during the trial ... that the defendant did not actually believe in the guilt of the person charged with crime, then that fact is an essential element to be considered in the determination of the question of whether or not the defendant had probable cause.
“... the same evidence which tends to prove malice may also, if it indicates a lack of belief on the part of the defendant in the guilt of the plaintiff, tend to prove want of probable cause. ... If, on the other hand, in addition to malice, there was a lack of belief by the defendant in the guilt of the plaintiff, there was want of probable cause, despite the existence of facts which would justify the suspicions of a reasonable man in the guilt of the accused.” Viewing the evidence in the light most favorable to plaintiffs and disregarding conflicts as this court must do in testing the propriety of nonsuits, it appears to me that there was ample evidence from which the jury could have found that these defendants did not themselves believe that they had either probable cause or reasonable grounds for the [38 Cal.2d 327] arrest, imprisonment or prosecution of these plaintiffs. No officer should be permitted to bring unwarranted, unfounded charges against any individual for the purpose of rendering himself immune from liability.
I am of the opinion now, as I was when I wrote my dissent in White v. Towers, supra, that the protection of individual rights should be zealously guarded from unwarranted police action and that the privilege of police immunity should not be so extended that it protects any law enforcement officer who chooses to make an arrest on mere suspicion or conjecture.
The majority decision in this case is another step in support of the police state philosophy which the majority of this court has approved and sanctioned in several recent decisions (see People v. Rochin, 101 Cal.App.2d 140 [225 P.2d 1], reversed by U.S. Supreme Court, January 2, 1952, see Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed.]; White v. Towers, 37 Cal.2d 727 [235 P.2d 209]; People v. Gonzales, 20 Cal.2d 165 [124 P.2d 44]), and demonstrates the absurdity of the argument that a person whose rights have been violated by a peace officer may obtain redress against the offending officer. (People v. Gonzales, 20 Cal.2d 165, 169 [124 P.2d 44].)”
State of Washington v. Rousseau, 40 Wn.2d 92 (1952): “[1] It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily harm is threatened. [CITATIONS OMITTED] The extent to which one illegally arrested may carry his resistance when the acts and conduct of the officer do not threaten his life or any great bodily injury, presents a question on which there is considerable conflict of authority. It is generally recognized, however, that a man may not oppose an arrest which merely threatens his liberty with the same extreme measures permissible if an attempt is made on his life, because the individual wrongfully deprived of his liberty has a supposedly adequate redress by a resort to the laws. State v. Gum, supra. There *95 is authority to the effect that, even in the case of an unlawful arrest, the person arrested would be warranted in using force and inflicting personal injury upon the officer only in self-defense, the necessity or apparent necessity for which must appear. State v. Spaulding, 34 Minn. 361, 25 N.W. 793.
We find ourselves in accord with the supreme court of West Virginia, which, after an extensive survey and summary of the various holdings in that and other states, laid down the rule that the force used in resisting an unlawful arrest must be reasonable and proportioned to the injury attempted upon the party sought to be arrested, and he cannot use or offer to use a deadly weapon if he has no reason to apprehend a greater injury than a mere unlawful arrest. State v. Gum, supra. A similar rule was stated in a recent case, State v. Robinson (1950), 72 A. (2d) (Me.) 260, where it was said:
“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right, and only the same right, to use force in defending himself as he would have in repelling any other assault and battery.”
Had the appellant merely attempted to escape from the officer by flight, there would be no question but that the second arrest was as illegal as the first.
[2] “Every man, however guilty, has a right to shun an illegal arrest by flight. The exercise of this right should not, and would not, subject him to be arrested as a fugitive.” Thomas v. State, 91 Ga. 204, 206, 18 S.E. 305; cited with approval in Porter v. State, 124 Ga. 297, 52 S.E. 283.
It is not the appellant’s flight, but the fact that he pushed the officer into the path of an oncoming automobile, which could have seriously injured or killed the officer as effectively as though the appellant had used a gun, a knife, or other deadly weapon, that raises the question of whether the appellant used unreasonable force in resisting arrest and thereby committed an unjustified assault upon the officer, which would make the second apprehension and arrest of the appellant lawful. . . .
FINLEY, J. (concurring in the result)
. . . Admittedly, this point of view calls for some reconsideration of our decision in State v. Buckley, 145 Wash. 87, 89, 258 Pac. 1030. In that case, the trial court’s suppression of evidence was upheld by this court on the ground that the evidence had been acquired in connection with an alleged illegal arrest, search and seizure. At page 89, we said:
“It is the rule of the English courts, and is the rule of the courts in a majority of the American states, that the admissibility *98 of evidence is not affected by the manner in which, the means by which, or the source from which, it is obtained. It is held that, if the evidence is otherwise pertinent to the issue, it is no valid objection to its admissibility to show that it was unlawfully or illegally obtained. See the note of Mr. Freeman to State v. Turner, [CITATIONS OMITTED]. The highest court of the land, however, has uniformly followed a contrary rule. It has said, in no uncertain language, that it is beneath the dignity of the state, and contrary to public policy, for the state to use for its own profit evidence that has been obtained in violation of law. [CITATIONS OMITTED] We have ourselves followed the Federal rule. [CITATIONS OMITTED]”
While the Federal rule, as announced in Weeks v. United States, supra, and applied in the United States courts, does not permit the admission of evidence or even the use of information acquired in connection with an illegal arrest or search and seizure, and while we have adopted the Federal rule substantially in this state by our decision in State v. Buckley, supra, it is quite apparent that the authorities generally are not in agreement on this problem.
5 Jones Commentaries on Evidence (2d ed.) 3875, § 2079, supports the Weeks case or Federal rule, i.e., the exclusionary doctrine. 8 Wigmore on Evidence (3rd ed.) 31, § 2184, takes the opposite view. Wigmore characterizes the adoption by numerous jurisdictions of the “heretical influence of Weeks v. United States,” as a “contagion of sentimentality in some of the State Courts, inducing them to break loose from long-settled fundamentals.”
There is much to be said for the viewpoint of those authorities favoring the rule of exclusion or nonuse of evidence or information acquired through illegal arrest or search and seizure. This is particularly true in view of the facts, (1) that the exclusionary principle has been predicated upon the Fourth and Fifth Amendments of the United States Constitution, *99 and (2) that those amendments were the outgrowth of widespread English colonial abuses of authority involving compulsory testimony and arrest, search, and seizure, without warrant. The protection of individuals from illegal arrest, search, and seizure ostensibly is the principal purpose, or rationale, of the rule and this is laudable; but realistically, there is much to be said for some reasonable modification or exception of the Weeks case doctrine as established in our state by the Buckley case.”
In Wainwright v. City of New Orleans, 392 U.S. 598, 613-615 (1968), Justice Douglas, DISSENTING under a writ of certiorari dismissed as IMPROVIDENTLY GRANTED: “The circumstances of this case show that the arrest was no more than arrest on suspicion, which, of course, was unconstitutional -- at least prior to Terry v. Ohio -- and robs the search of any color of legality. Henry v. United States, 361 U. S. 98.
Under our authorities (cf. Elk v. United States, 177 U. S. 529, 177 U. S. 534-535, and see United States v. Di Re, 332 U. S. 581, 332 U. S. 594), at least prior to the ill-starred case of Terry v. Ohio, a citizen had the right to offer some resistance to an unconstitutional “seizure” or “search.” Must he now stand quietly and supinely while officers “pat him down” whirl him around, and throw him in the wagon?
The present episode may be an insignificant one, and the hurt to petitioner nominal. But the principle that a citizen can defy an unconstitutional act is deep in our system. Thomas v. Collins, 323 U. S. 516, 323 U. S. 532-537. When, in a recent case (Wright v. Georgia, 373 U. S. 284, 373 U. S. 291-292), it was said that “failure to obey the command of a police officer constitutes a traditional form of breach of the peace,” we made a qualification:
“Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution.”
We should not let those fences of the law be broken down.
This case points up vividly the dangers which emanate from the Court’s decision in Terry v. Ohio, the so-called “stop-and-frisk” case. If this case is to be decided by the new test of “searches” and “seizures” announced in that case, startling problems are presented. The officers here had no more than an unsubstantiated suspicion that petitioner was a murder suspect, a suspicion based only on a superficial resemblance between petitioner and the wanted man. Thus, they had no right to “seize” petitioner. Is the case dismissed as improvidently granted because the officers had “reasonable suspicion” justifying the seizure, or reasonable grounds to believe that petitioner was armed and dangerous? These questions are not answered by the Court, and leaving them unanswered gives a new impetus to Terry v. Ohio. If this “seizure” was constitutional, then the sleepless professor who walks in the night to find the relaxation for sleep is easy prey to the police, as are thousands of other innocent Americans raised in the sturdy environment where no policeman can lay a hand on the citizen without “probable cause” that a crime has been or is about to be committed. That was the philosophy of Walt Whitman, Vachel Lindsay, and Carl Sandburg, and it was faithfully reflected in our law.
The interest of society in apprehending murderers is obviously strong; yet when the manhunt is on, passions often carry the day. I fear the long and short of it is that an officer’s “seizure” of a person on the street, even though not made upon “probable cause,” means that, if the suspect resists the “seizure,” he may then be taken to the police station for further inquisition. That is a terrifying spectacle -- a person is plucked off the street and whisked to the police station for questioning and identification merely because he resembles the suspected perpetrator of a crime. I fear that, with Terry and with Wainwright, we have forsaken the Western tradition and taken a long step toward the oppressive police practices not only of Communist regimes, but of modern Iran, “democratic” Formosa, and Franco Spain, with which we are now even more closely allied.”
Taylor v. United States, 259 A.2d 835 (1969): “In Thomas v. United States, 134 U.S.App.D.C. 48, 412 F.2d 1095, 1096 (1969), the court said: “If it be assumed that the arresting officer was acting in good faith, the circumstances were such that it could be said that a misdemeanor took place in his ‘presence’ as distinct from ‘within his view.’ The former has customarily been thought to embody a less restricted spatial concept than the latter, and to comprehend awareness through senses other than that of vision alone.” The officer is not limited to his sense of vision alone, i.e., it is not necessary for the officer to have actually seen every fact constituting the commission of the misdemeanor, but he may utilize all his senses. The use by the officer of all his senses of necessity contemplates that the officer will draw upon what is common knowledge under the circumstances. Thus a misdemeanor is committed in the presence of an officer when, with the aid of all his senses and what is common knowledge under the circumstances, the officer has knowledge that such is the case. . . .
To hold otherwise would be to hamper the police in the pursuit of their law enforcement activities. If the police were required to witness every collision on the public highways in order for a misdemeanor to have been committed in their presence, the police would be hindered in the effective administration of the motor vehicle laws, the public interest would not be protected and many law violators would escape prosecution. Congress never contemplated such a result when it enacted the motor vehicle statutes in the District of Columbia.
The search of appellant prior to his entering the patrol wagon was a standard police procedure to check for weapons and was incident to a lawful arrest.”
State of Arizona v. Gunter, 414 P.2d 734, 100 Ariz. 356, 360 (1966): ‘“The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if committed in his presence. … The rule is sometimes expressed as follows:
‘In cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.’ Halsbury’s Laws of England, vol. 9, part. III, 612.” Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.’
Miller v. State of Alaska, 462 P.2d 421 (1969): “In Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876 (1952), the California Supreme Court construed the applicable statute, which was also similar to AS 12.25.030(1), as allowing an officer to make a warrantless arrest for a misdemeanor where the officer had probable cause to believe the arrestee was committing the offense in his presence. The court held that the arrest is proper when circumstances exist that would cause a reasonable person to believe that a crime had been committed in his presence. The court explained the policy reasons underlying its interpretation:
“When an arrest for a misdemeanor is made upon the complaint of one other than the arresting officer, it is proper to require the securing of a warrant to justify the arrest. * * * However, to make the same requirement, when the officer sees that in all probability a public offense is being committed in his presence, would be to hamper law enforcement officers in their everyday enforcement of the law. Peace officers would be reluctant to make arrests for fear that they would be held liable for having made an honest and reasonable mistake. It is thus manifest that the day to day problems of law enforcement require that peace officers be allowed to act without fear of being held liable upon the facts as they see them, provided such facts would lead a reasonable person to conclude that he was witnessing the commission of a public offense by the person arrested.” 239 P.2d, at 879-880.2
We find these authorities persuasive. We hold that an arrest under AS 12.25.030(1) is lawful where the peace officer has perceived facts which would lead a reasonable man to believe that the arrestee has committed or attempted to commit an offense in his presence. . . . 3
Lastly, we take up the question of whether one can resist a peaceful arrest even though the arrest is unlawful. The weight of authoritative precedent supports a right to repel an unlawful arrest with force. [CITATIONS OMITTED] This was the rule at common law. It was based upon the proposition that everyone should be privileged to use reasonable force to prevent an unlawful invasion of his physical integrity and personal liberty.
But certain imperfections in the functioning of the rule have brought about changes in some jurisdictions. A new principle of right conduct has been espoused. It is argued that if a peace officer is making an illegal arrest but is not using force, the remedy of the citizen should be that of suing the officer for false arrest, not resistance with force. The legality of a peaceful arrest may frequently be a close question. It is a question more properly determined by courts than by the participants in what may be a highly emotional situation. Because officers will normally overcome resistance with necessary force, the danger of escalating violence between the officer and the arrestee is great. What begins as an illegal misdemeanor arrest may culminate in serious bodily harm or death.
The control of man’s destructive and aggressive impulses is one of the great unsolved problems of our society. Our rules of law should discourage the unnecessary use of physical force between man and man. Any rule which promotes rather than inhibits violence should be re-examined. Along with increased sensitivity to the rights of the criminally accused there should be a corresponding awareness of our need to develop rules which facilitate decent and peaceful behavior by all.
The common law rule was developed in a time when self-help was a more necessary remedy to resist intrusions upon one’s freedom.
“[It] was developed largely during a period when most arrests were made by private citizens, when bail for felonies was usually unattainable, and when years might pass before the royal judges arrived for a jail delivery. Further, conditions in English jails were then such that a prisoner had an excellent chance of dying of disease before trial.” Warner, “The Uniform Arrest Act,” 28 Va. L.Rev. 315 (1942).
Section 5 of the Uniform Arrest Act provides: “If a person has reasonable ground to believe he is being arrested by a peace officer, it is his duty to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest.”
That provision, or its equivalent, has been enacted as statutory law in California, Rhode Island, New Hampshire, and Delaware. The Model Penal Code, Section 3.04(2)(a)(i) similarly prohibits the use of force “to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful.” In support of this provision Judge Learned Hand stated:
“The idea that you may resist peaceful arrest * * * because you are in debate about whether it is lawful or not, instead of going to the authorities which can determine, * * * [is] not a blow for liberty but on the contrary, a blow for attempted anarchy.” 1958 Proceedings, American Law Institute, at 254.
At least one state court has adopted the recommended rule as a matter of its common law development. State v. Koonce, 89 N.J.Super. 169, 214 A.2d 428 (1965). The legal literature contains discussions on how much force may be used by either an officer making a lawful arrest or by an unlawfully arrested person in resisting arrest. “Justification for the Use of Force in the Criminal Law,” 13 Stan.L.Rev. 566 (1961); “Criminal Law: Force That May be Used to Resist an Illegal Arrest,” 9 Okl.L.Rev. 60 (1956). At best only elastic standards can be employed, as so much depends upon the exigencies of the situation, the gravity of the offense, and the amount of force and counterforce used or threatened.
To us the question is whether any amount of force should be permitted to be used by one unlawfully but peaceably arrested. We feel that 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. The old common law rule has little utility to recommend it under our conditions of life today. We hold that a private citizen may not use force to resist peaceful arrest by one he knows or has good reason to believe is an authorized peace officer performing his duties, regardless of whether the arrest is illegal in the circumstances of the occasion. 4
Under this standard appellant was given the benefit of instructions to the jury more favorable than that to which he was entitled, as the case was submitted on the theory that one has a right to resist with force an unlawful arrest. We reject the claims of error both for the reason that the arrest was proper and because appellant in any event had no right to resist a peaceable arrest.
3. It is recognized, of course, that the grounds for arresting a person without a warrant for a misdemeanor committed in the presence of an officer are considerably more restricted than those which would constitute probable cause for a felony arrest without a warrant. By our opinion today we do not mean to imply any change in the rules concerning felony arrests.
4. It should be noted that the rule we formulate today has no application when the arrestee apprehends bodily injury, or when an unlawful arrest is attempted by one not known to be a peace officer. Quite different problems are then presented.”
* Miller v. State of Alaska, supra, additionally referenced in-part within: Fields v. State of Indiana, 382 N.E.2d 972 (1978); Burgess v. State of Florida, 313 So.2d 479 (1975).
The People of the State of Illinois v. Carroll, 133 Ill. App.2d 78 (1971): “1 A police officer may arrest a person when he has reasonable grounds to believe that the person has committed a criminal offense. (Ill. Rev. Stat., 1967, ch. 38, par. 107-2.) The test whether the officer had reasonable grounds for his belief is whether a reasonable and prudent man having the knowledge which the officer had would believe the person arrested guilty of the offense. (People v. Asey (1967), 85 Ill.App.2d 210, 229 N.E.2d 368.) We must conclude from Perkins’ own testimony that there was no probable cause for arresting Carroll. Perkins testified [133 Ill. App.2d 80] that Carroll had violated no law, federal, state or municipal. When asked the reason for his arrest, Perkins replied:
“The boy was told if he wouldn’t move back that he would be placed under arrest, at which time he jumped across the ditch, muffled something under his breath again, and I said, that’s it, you are under arrest * * *.”
Carroll was not placed under arrest because he had committed a criminal offense. He was not arrested because he disobeyed the order to move back; in fact, by jumping across the ditch he was complying with this order. He was arrested, according to the arresting officer himself, because he “muffled something under his breath.” Muttering to oneself is not a crime. While Perkins may have been displeased at Carroll's display of hostility, he had no reasonable ground for arresting him.
2, 3 Nonetheless, the lack of probable cause for the arrest does not exonerate Carroll from resisting it. Section 31-1 prohibits a person from knowingly resisting a police officer from performing an authorized act. “Authorized” means “endowed with authority.” (People v. Young (1968), 100 Ill.App.2d 20, 241 N.E.2d 587.) “Resisting” was defined in Landry v. Daley (N.D. Ill. 1968), 280 F.Supp. 938, as “withstanding the force or effect of or the exertion of oneself to counteract or defeat.” In speaking of “resisting” and “obstructing” the court stated:
“These terms are alike in that they imply some physical act or exertion. Given a reasonable and natural construction, these terms * * * proscribe only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer’s duties * * *.” See also People v. Raby (1968), 40 Ill.2d 392, 240 N.E.2d 595.
Carroll’s running away was a physical act which impeded and delayed his arrest; it was also a forcible act of resistance. A person may not use force to resist an arrest by one whom he knows to be an officer of the law, even if the arrest is unlawful. Ill. Rev. Stat., 1967, ch. 38, par. 7-7. A police officer may not make an arrest unless he believes that probable cause exists justifying the arrest. Whether there is probable cause is initially a question for the arresting officer. Ultimately, however, it is a question for the courts. If a court finds that there was no probable cause, the accused will be acquitted of the charge and evidence acquired as a result of the arrest will be suppressed. Since a police officer must make the initial determination, and since his office gives him the authority to make an arrest, an accused may not physically resist the arrest. He may inquire as to its reason; he may point out the officer’s mistake; he may protest and argue; but he may not impede the arrest by physical [133 Ill. App.2d 81] action. The public interest in discouraging violence and in insisting on the use of peaceable methods of obtaining release from unlawful custody outweighs the outrage felt by the individual who is subjected to unlawful police conduct. Committee Comments, S.H.A., ch. 38, sec. 7-7; cf. People v. Fort (1968), 91 Ill.App.2d 212, 234 N.E.2d 384. The invalidity of an arrest does not justify physical or forcible resistance under either par. 31-1 or 7-7. But cf. People v. Royer (1968), 101 Ill.App.2d 44, 242 N.E.2d 288.
The related character of sections 31-1 and 7-7 was discussed in Landry v. Daley, supra. The court noted that in spite of the fact that section 31-1 does not proscribe resisting or obstructing an unauthorized act of a police officer, a private citizen who forcibly resists arrest, even though the arrest is itself unlawful, violates section 7-7. Thus, in People v. Young, supra, this court recognized a distinction between the right of a citizen to resist an attempt by a police officer to serve him with a search warrant intended for another individual, and the absence of any right to forcibly resist a police”
Schneckloth v. Bustamonte, 412 U.S. 218, 246-249 (1973): “Much of what has already been said disposes of the argument that the Court’s decision in the Miranda case requires the conclusion that knowledge of a right to refuse is an indispensable element of a valid consent. The considerations that informed the Court’s holding in Miranda are simply inapplicable in the present case. In Miranda, the Court found that the techniques of police questioning and the nature of custodial surroundings produce an inherently coercive situation. The Court concluded that, nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.
384 U.S. at 458. And, at another point, the Court noted that, without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.
. . . There is no reason to believe, under circumstances such as are present here, that the response to a policeman’s question is presumptively coerced; and there is, therefore, no reason to reject the traditional test for determining the voluntariness of a person’s response. Miranda, of course, did not reach investigative questioning of a person not in custody, which is most directly analogous to the situation of a consent search, and it assuredly did not indicate that such questioning ought to be deemed inherently coercive. See supra at 232.
It is also argued that the failure to require the Government to establish knowledge as a prerequisite to a valid consent, will relegate the Fourth Amendment to the special province of “the sophisticated, the knowledgeable and the privileged.” We cannot agree. The traditional definition of voluntariness we accept today has always taken into account evidence of minimal schooling, low intelligence, and the lack of any effective warnings to a person of his rights; and the voluntariness of any statement taken under those conditions has been carefully scrutinized to determine whether it was in fact, voluntarily given. [n37]
Our decision today is a narrow one. We hold only that, when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact, voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. [n38] Because the California court followed these principles in affirming the respondent’s conviction, and because the Court of Appeals for the Ninth Circuit, in remanding for an evidentiary hearing, required more, its judgment must be reversed.”
State of Arizona v. Lockner, 20 Ariz. App. 367 (1973): “The defendant relies upon his claim of an unlawful arrest and his right to resist the same, “using such force as may be reasonably necessary, short of killing the arresting officer.” Dugan v. State, 54 Ariz. 247 at 250, 94 P.2d 873 at 874 (1939). The phrase “short of killing the arresting officer” chills this Court, especially in the matter of an arrest by law enforcement officers. While that statement is apparently the law in Arizona, in our opinion it invites violence. We believe the better rule is that under those circumstances the interest of the individual must give way to the interest of the public and the individual may seek his remedy following the arrest. These thoughts are expressed in People v. Carroll, 272 N.E.2d 822 (Ill. App. 1971.)”
State of Idaho v. Richardson, 511 P.2d 263 (1973): “In 1957 the California legislature changed the common law rule in that state by enacting the following statute:
“If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest.” West’s Ann.Pen.Code, § 834a.”
Commonwealth of Pennsylvania v. Supertzi, 235 Pa. Superior Ct. 95 (1975): “It is true that the right to resist an unlawful arrest, John Bad Elk v. United States, 177 U.S. 529 (1900), had not been abrogated in Pennsylvania by statute at the time of appellee’s and Tenney’s arrest. [3] However, in Commonwealth v. Beam, 227 Pa. Superior Ct. 293, 324 A.2d 549 (1974) (also decided under 18 P.S. § 4314), this court acknowledged the erosion of that concept with approval. The increasing complexity of the law of probable cause renders the legality of an arrest a highly technical area of the law. See e.g., [CITATIONS OMITTED] *99. The technicalities involved in determining the validity of a warrantless arrest, coupled with the availability of civil remedies for false arrest, have led many to conclude that there is no right forcibly to resist an arrest by a known officer of the law, whether or not the arrest is subsequently determined to be unlawful. [4] A rationale often used as support for this position is that the participants in such an altercation seldom have the time or the emotional stability necessary to make a legal judgment of the rights involved. There is a strong likelihood that a decision made under those circumstances will be wrong, thus increasing the likelihood that useless violence will occur. Any rule which creates a high risk of useless violence can only be upheld by the strongest of justifications.
In this case, the issue of whether one can forcibly resist an unlawful arrest is not before us. The issue here is whether one can aid another in forcibly resisting an arrest subsequently determined to be unlawful. [5] Under such circumstances, the person coming to the aid of the arrestee is likely to have even less facts at his disposal for determining whether the arrest is lawful, than the one who is being arrested. This case provides a perfect illustration of that fact, for the appellee had no knowledge from which to determine the legality of Tenney’s arrest. To hold that the appellee’s conduct could be justified by a subsequent determination that the arrest of Tenney was unlawful, would mean that the would-be rescuer could *100 join the fray without any idea of whether the arrestee’s conduct is legal or not.
We hold that there was and is no right forcibly to aid another in resisting an unlawful arrest.
[3] As of June 6, 1973, the use of force to resist an unlawful arrest by a known police officer is unjustifiable. Act of December 6, 1972, P.L. 1482, No. 334, § 1 (18 Pa.C.S. § 505(b)(1)(i)).
[4] In addition to the authorities cited in Commonwealth v. Beam, [CITATIONS OMITTED].
[5] The lower court held that the arrest of Tenney was unlawful because the arresting officer was without a warrant, and because there was no probable cause to arrest. Our disposition of this case renders it unnecessary for us to decide that issue at this time.”
Burgess v. State of Florida, 313 So.2d 479 (1975): “We support the reasoning and the conclusion so well articulated by the Supreme Court of Alaska in its opinion in Miller v. State, Alaska 1969, 462 P.2d 421, 426-27, wherein that court receded from the common law rule which allows forceful resistance to an unlawful arrest, stating: [See quotation, supra.] . . .
In State v. Richardson, 1973, 95 Idaho 446, 511 P.2d 263, the court adopted the rule elaborated by the Supreme Court of Alaska. Another recent case expressing dissatisfaction with the common law rule is State v. Lockner, 1973, 20 Ariz.App. 367, 513 P.2d 374, 378.
The quoted extract from the opinion in Miller, supra, is consonant with the tenor of this court’s opinion in Daniel v. State, Fla.App.2d 1961, 132 So.2d 312, requiring law enforcement officers to make known their official capacity before making an arrest, and with the philosophy of this court’s opinion in State v. Fulkerson, Fla. App.2d 1974, 300 So.2d 275, that one imprisoned under some color of law is not entitled to resort to self-help but rather may apply for his release through regular channels of the law.”
Fields v. State of Indiana, 382 N.E.2d 972 (1978): ‘In Heichelbech, supra, and in Williams, supra, both this court and our Supreme Court recognized that at common law a person was permitted to resist an unlawful arrest with reasonable force. However, both the court in Heichelbach, supra, and the court in Williams, supra, quickly pointed out that recent cases have held that a private citizen may not use force in resisting a peaceful arrest by a person which he knows or has good reason to know was a police officer performing his duties, regardless of whether the arrest was legal or illegal.
We are of the opinion that the common law rule is outmoded in our modern society. A citizen, today, can seek his remedy for a policeman’s unwarranted and illegal intrusion into the citizen’s private affairs by bringing a civil action in the courts against the police officer and the governmental unit which the officer represents. The common law right of forceful resistance to an unlawful arrest tends to promote violence and increases the chances of someone getting injured or killed. In Miller v. State (1969), Alaska, 462 P.2d 421, 426-427, the Supreme Court of Alaska stated the following: [See quotation, supra.] . . .
In the case at bar we hold that although Wilson Fields’ initial arrest was unlawful, he was not entitled to forcefully resist Officer Fields’ attempt to apprehend him. We note that this appeal does not address issues that arise when an arrestee apprehends that the arresting officer is using excessive force and that unless the arrestee defends himself, he is likely to suffer great bodily harm or death. Nor does this appeal deal with issues that are presented when an unlawful arrest is attempted by one not known to be a law enforcement officer. Our holding is limited to the fact situation presented in the case at bar.’
Bad Elk v. United States, 177 U.S. 529, 535, 537-538 (1900): “At common law, if a party resisted arrest by an officer without warrant and who had no right to arrest him, and if in the course of that resistance the officer was killed, the offense of the party resisting arrest would be reduced from what would have been murder if the officer had had the right to arrest, to manslaughter. What would be murder if the officer had the right to arrest might be reduced to manslaughter by the very fact that he had no such right. So an officer at common law was not authorized to make an arrest without a warrant for a mere misdemeanor not committed in his presence. … If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.
The occasion of the trouble originated in Gleason’s orders to arrest him and in the announced intention on the part of the policemen, which they endeavored to accomplish, to arrest the plaintiff in error that night and take him to the agency, and all that followed that announcement ought to be viewed in the light of such proclaimed intention. And yet the charge presented the plaintiff in error to the jury as one having no right to make any resistance to an arrest by these officers, although he had been guilty of no offense, and it gave the jury to understand that the officers, in making the attempt, had the right to use all necessary force to overcome any and all opposition that might be made to the arrest, even to the extent of killing the individual whom they desired to take into their custody. Instead of saying that plaintiff in error had the right to use such force as was absolutely necessary to resist an attempted illegal arrest, the jury were informed that the policemen had the right to use all necessary force to arrest him, and that he had no right to resist. He, of course, had no right to unnecessarily injure, much less to kill, his assailant; but where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction when the officer had the right to make the arrest from what it does if the officer had no such right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”
Carroll v. United States, 267 U.S. 132, 157 (1925): “In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause. United States v. Kaplan, 286 Fed. 963, 972.”
United States v. Di Re, 332 U.S. 581, 594-595 (1948): “The Government also makes, and several times repeats, an argument to the effect that the officers could infer probable cause from the fact that Di Re did not protest his arrest, did not at once assert his innocence, and silently accepted the command to go along to the police station. One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases. But courts will hardly penalize failure to display a spirit of resistance or to hold futile debates on legal issues in the public highway with an officer of the law. A layman may not find it expedient to hazard resistance on his own judgment of the law at a time when he cannot know what information, correct or incorrect, the officers may be acting upon. It is likely to end in fruitless and unseemly controversy in a public street, if not in an additional charge of resisting an officer. If the officers believed they had probable cause for his arrest on a felony charge, it is not to be supposed that they would have been dissuaded by his profession of innocence.
It is the right of one placed under arrest to submit to custody and to reserve his defenses for the neutral tribunals erected by the law for the purpose of judging his case. An inference of probable cause from a failure to engage in discussion of the merits of the charge with arresting officers is unwarranted. Probable cause cannot be found from submissiveness, and the presumption of innocence is not lost or impaired by neglect to argue with a policeman. It is the officer’s responsibility to know what he is arresting for, and why, and one in the unhappy plight of being taken into custody is not required to test the legality of the arrest before the officer who is making it.
The Government's last resort in support of the arrest is to reason from the fruits of the search to the conclusion that the officer’s knowledge at the time gave them grounds for it. We have had frequent occasion to point out that a search is not to be made legal by what it turns up. In law, it is good or bad when it starts, and does not change character from its success.
We meet in this case, as in many, the appeal to necessity. It is said that, if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment. Taking the law as it has been given to us, this arrest and search were beyond the lawful authority of those who executed them. The conviction based on evidence so obtained cannot stand.”
In Coverstone v. Davies, 38 Cal.2d 315 (1952), Justice Carter DISSENTING, along with Justice Schauer CONCURRING: “There is also evidence in the record from which it could be found that the complaint was filed by the police officers against these plaintiffs to avoid the possibility of lawsuits for false arrest and imprisonment. Mr. Mock, father of one of the plaintiffs, testified that Captain Cook, one of the defendants here, called him to his office and remarked that a complaint had not been filed against the boys but that unless they (the police) were released from liability they would have to do so to protect themselves. In Franzen v. Shenk, 192 Cal. 572, 580-583 [221 P. 932], it was said: “... if it appears anywhere during the trial ... that the defendant did not actually believe in the guilt of the person charged with crime, then that fact is an essential element to be considered in the determination of the question of whether or not the defendant had probable cause.
“... the same evidence which tends to prove malice may also, if it indicates a lack of belief on the part of the defendant in the guilt of the plaintiff, tend to prove want of probable cause. ... If, on the other hand, in addition to malice, there was a lack of belief by the defendant in the guilt of the plaintiff, there was want of probable cause, despite the existence of facts which would justify the suspicions of a reasonable man in the guilt of the accused.” Viewing the evidence in the light most favorable to plaintiffs and disregarding conflicts as this court must do in testing the propriety of nonsuits, it appears to me that there was ample evidence from which the jury could have found that these defendants did not themselves believe that they had either probable cause or reasonable grounds for the [38 Cal.2d 327] arrest, imprisonment or prosecution of these plaintiffs. No officer should be permitted to bring unwarranted, unfounded charges against any individual for the purpose of rendering himself immune from liability.
I am of the opinion now, as I was when I wrote my dissent in White v. Towers, supra, that the protection of individual rights should be zealously guarded from unwarranted police action and that the privilege of police immunity should not be so extended that it protects any law enforcement officer who chooses to make an arrest on mere suspicion or conjecture.
The majority decision in this case is another step in support of the police state philosophy which the majority of this court has approved and sanctioned in several recent decisions (see People v. Rochin, 101 Cal.App.2d 140 [225 P.2d 1], reversed by U.S. Supreme Court, January 2, 1952, see Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed.]; White v. Towers, 37 Cal.2d 727 [235 P.2d 209]; People v. Gonzales, 20 Cal.2d 165 [124 P.2d 44]), and demonstrates the absurdity of the argument that a person whose rights have been violated by a peace officer may obtain redress against the offending officer. (People v. Gonzales, 20 Cal.2d 165, 169 [124 P.2d 44].)”
State of Washington v. Rousseau, 40 Wn.2d 92 (1952): “[1] It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily harm is threatened. [CITATIONS OMITTED] The extent to which one illegally arrested may carry his resistance when the acts and conduct of the officer do not threaten his life or any great bodily injury, presents a question on which there is considerable conflict of authority. It is generally recognized, however, that a man may not oppose an arrest which merely threatens his liberty with the same extreme measures permissible if an attempt is made on his life, because the individual wrongfully deprived of his liberty has a supposedly adequate redress by a resort to the laws. State v. Gum, supra. There *95 is authority to the effect that, even in the case of an unlawful arrest, the person arrested would be warranted in using force and inflicting personal injury upon the officer only in self-defense, the necessity or apparent necessity for which must appear. State v. Spaulding, 34 Minn. 361, 25 N.W. 793.
We find ourselves in accord with the supreme court of West Virginia, which, after an extensive survey and summary of the various holdings in that and other states, laid down the rule that the force used in resisting an unlawful arrest must be reasonable and proportioned to the injury attempted upon the party sought to be arrested, and he cannot use or offer to use a deadly weapon if he has no reason to apprehend a greater injury than a mere unlawful arrest. State v. Gum, supra. A similar rule was stated in a recent case, State v. Robinson (1950), 72 A. (2d) (Me.) 260, where it was said:
“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right, and only the same right, to use force in defending himself as he would have in repelling any other assault and battery.”
Had the appellant merely attempted to escape from the officer by flight, there would be no question but that the second arrest was as illegal as the first.
[2] “Every man, however guilty, has a right to shun an illegal arrest by flight. The exercise of this right should not, and would not, subject him to be arrested as a fugitive.” Thomas v. State, 91 Ga. 204, 206, 18 S.E. 305; cited with approval in Porter v. State, 124 Ga. 297, 52 S.E. 283.
It is not the appellant’s flight, but the fact that he pushed the officer into the path of an oncoming automobile, which could have seriously injured or killed the officer as effectively as though the appellant had used a gun, a knife, or other deadly weapon, that raises the question of whether the appellant used unreasonable force in resisting arrest and thereby committed an unjustified assault upon the officer, which would make the second apprehension and arrest of the appellant lawful. . . .
FINLEY, J. (concurring in the result)
. . . Admittedly, this point of view calls for some reconsideration of our decision in State v. Buckley, 145 Wash. 87, 89, 258 Pac. 1030. In that case, the trial court’s suppression of evidence was upheld by this court on the ground that the evidence had been acquired in connection with an alleged illegal arrest, search and seizure. At page 89, we said:
“It is the rule of the English courts, and is the rule of the courts in a majority of the American states, that the admissibility *98 of evidence is not affected by the manner in which, the means by which, or the source from which, it is obtained. It is held that, if the evidence is otherwise pertinent to the issue, it is no valid objection to its admissibility to show that it was unlawfully or illegally obtained. See the note of Mr. Freeman to State v. Turner, [CITATIONS OMITTED]. The highest court of the land, however, has uniformly followed a contrary rule. It has said, in no uncertain language, that it is beneath the dignity of the state, and contrary to public policy, for the state to use for its own profit evidence that has been obtained in violation of law. [CITATIONS OMITTED] We have ourselves followed the Federal rule. [CITATIONS OMITTED]”
While the Federal rule, as announced in Weeks v. United States, supra, and applied in the United States courts, does not permit the admission of evidence or even the use of information acquired in connection with an illegal arrest or search and seizure, and while we have adopted the Federal rule substantially in this state by our decision in State v. Buckley, supra, it is quite apparent that the authorities generally are not in agreement on this problem.
5 Jones Commentaries on Evidence (2d ed.) 3875, § 2079, supports the Weeks case or Federal rule, i.e., the exclusionary doctrine. 8 Wigmore on Evidence (3rd ed.) 31, § 2184, takes the opposite view. Wigmore characterizes the adoption by numerous jurisdictions of the “heretical influence of Weeks v. United States,” as a “contagion of sentimentality in some of the State Courts, inducing them to break loose from long-settled fundamentals.”
There is much to be said for the viewpoint of those authorities favoring the rule of exclusion or nonuse of evidence or information acquired through illegal arrest or search and seizure. This is particularly true in view of the facts, (1) that the exclusionary principle has been predicated upon the Fourth and Fifth Amendments of the United States Constitution, *99 and (2) that those amendments were the outgrowth of widespread English colonial abuses of authority involving compulsory testimony and arrest, search, and seizure, without warrant. The protection of individuals from illegal arrest, search, and seizure ostensibly is the principal purpose, or rationale, of the rule and this is laudable; but realistically, there is much to be said for some reasonable modification or exception of the Weeks case doctrine as established in our state by the Buckley case.”
In Wainwright v. City of New Orleans, 392 U.S. 598, 613-615 (1968), Justice Douglas, DISSENTING under a writ of certiorari dismissed as IMPROVIDENTLY GRANTED: “The circumstances of this case show that the arrest was no more than arrest on suspicion, which, of course, was unconstitutional -- at least prior to Terry v. Ohio -- and robs the search of any color of legality. Henry v. United States, 361 U. S. 98.
Under our authorities (cf. Elk v. United States, 177 U. S. 529, 177 U. S. 534-535, and see United States v. Di Re, 332 U. S. 581, 332 U. S. 594), at least prior to the ill-starred case of Terry v. Ohio, a citizen had the right to offer some resistance to an unconstitutional “seizure” or “search.” Must he now stand quietly and supinely while officers “pat him down” whirl him around, and throw him in the wagon?
The present episode may be an insignificant one, and the hurt to petitioner nominal. But the principle that a citizen can defy an unconstitutional act is deep in our system. Thomas v. Collins, 323 U. S. 516, 323 U. S. 532-537. When, in a recent case (Wright v. Georgia, 373 U. S. 284, 373 U. S. 291-292), it was said that “failure to obey the command of a police officer constitutes a traditional form of breach of the peace,” we made a qualification:
“Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution.”
We should not let those fences of the law be broken down.
This case points up vividly the dangers which emanate from the Court’s decision in Terry v. Ohio, the so-called “stop-and-frisk” case. If this case is to be decided by the new test of “searches” and “seizures” announced in that case, startling problems are presented. The officers here had no more than an unsubstantiated suspicion that petitioner was a murder suspect, a suspicion based only on a superficial resemblance between petitioner and the wanted man. Thus, they had no right to “seize” petitioner. Is the case dismissed as improvidently granted because the officers had “reasonable suspicion” justifying the seizure, or reasonable grounds to believe that petitioner was armed and dangerous? These questions are not answered by the Court, and leaving them unanswered gives a new impetus to Terry v. Ohio. If this “seizure” was constitutional, then the sleepless professor who walks in the night to find the relaxation for sleep is easy prey to the police, as are thousands of other innocent Americans raised in the sturdy environment where no policeman can lay a hand on the citizen without “probable cause” that a crime has been or is about to be committed. That was the philosophy of Walt Whitman, Vachel Lindsay, and Carl Sandburg, and it was faithfully reflected in our law.
The interest of society in apprehending murderers is obviously strong; yet when the manhunt is on, passions often carry the day. I fear the long and short of it is that an officer’s “seizure” of a person on the street, even though not made upon “probable cause,” means that, if the suspect resists the “seizure,” he may then be taken to the police station for further inquisition. That is a terrifying spectacle -- a person is plucked off the street and whisked to the police station for questioning and identification merely because he resembles the suspected perpetrator of a crime. I fear that, with Terry and with Wainwright, we have forsaken the Western tradition and taken a long step toward the oppressive police practices not only of Communist regimes, but of modern Iran, “democratic” Formosa, and Franco Spain, with which we are now even more closely allied.”
Taylor v. United States, 259 A.2d 835 (1969): “In Thomas v. United States, 134 U.S.App.D.C. 48, 412 F.2d 1095, 1096 (1969), the court said: “If it be assumed that the arresting officer was acting in good faith, the circumstances were such that it could be said that a misdemeanor took place in his ‘presence’ as distinct from ‘within his view.’ The former has customarily been thought to embody a less restricted spatial concept than the latter, and to comprehend awareness through senses other than that of vision alone.” The officer is not limited to his sense of vision alone, i.e., it is not necessary for the officer to have actually seen every fact constituting the commission of the misdemeanor, but he may utilize all his senses. The use by the officer of all his senses of necessity contemplates that the officer will draw upon what is common knowledge under the circumstances. Thus a misdemeanor is committed in the presence of an officer when, with the aid of all his senses and what is common knowledge under the circumstances, the officer has knowledge that such is the case. . . .
To hold otherwise would be to hamper the police in the pursuit of their law enforcement activities. If the police were required to witness every collision on the public highways in order for a misdemeanor to have been committed in their presence, the police would be hindered in the effective administration of the motor vehicle laws, the public interest would not be protected and many law violators would escape prosecution. Congress never contemplated such a result when it enacted the motor vehicle statutes in the District of Columbia.
The search of appellant prior to his entering the patrol wagon was a standard police procedure to check for weapons and was incident to a lawful arrest.”
State of Arizona v. Gunter, 414 P.2d 734, 100 Ariz. 356, 360 (1966): ‘“The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if committed in his presence. … The rule is sometimes expressed as follows:
‘In cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.’ Halsbury’s Laws of England, vol. 9, part. III, 612.” Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.’
Miller v. State of Alaska, 462 P.2d 421 (1969): “In Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876 (1952), the California Supreme Court construed the applicable statute, which was also similar to AS 12.25.030(1), as allowing an officer to make a warrantless arrest for a misdemeanor where the officer had probable cause to believe the arrestee was committing the offense in his presence. The court held that the arrest is proper when circumstances exist that would cause a reasonable person to believe that a crime had been committed in his presence. The court explained the policy reasons underlying its interpretation:
“When an arrest for a misdemeanor is made upon the complaint of one other than the arresting officer, it is proper to require the securing of a warrant to justify the arrest. * * * However, to make the same requirement, when the officer sees that in all probability a public offense is being committed in his presence, would be to hamper law enforcement officers in their everyday enforcement of the law. Peace officers would be reluctant to make arrests for fear that they would be held liable for having made an honest and reasonable mistake. It is thus manifest that the day to day problems of law enforcement require that peace officers be allowed to act without fear of being held liable upon the facts as they see them, provided such facts would lead a reasonable person to conclude that he was witnessing the commission of a public offense by the person arrested.” 239 P.2d, at 879-880.2
We find these authorities persuasive. We hold that an arrest under AS 12.25.030(1) is lawful where the peace officer has perceived facts which would lead a reasonable man to believe that the arrestee has committed or attempted to commit an offense in his presence. . . . 3
Lastly, we take up the question of whether one can resist a peaceful arrest even though the arrest is unlawful. The weight of authoritative precedent supports a right to repel an unlawful arrest with force. [CITATIONS OMITTED] This was the rule at common law. It was based upon the proposition that everyone should be privileged to use reasonable force to prevent an unlawful invasion of his physical integrity and personal liberty.
But certain imperfections in the functioning of the rule have brought about changes in some jurisdictions. A new principle of right conduct has been espoused. It is argued that if a peace officer is making an illegal arrest but is not using force, the remedy of the citizen should be that of suing the officer for false arrest, not resistance with force. The legality of a peaceful arrest may frequently be a close question. It is a question more properly determined by courts than by the participants in what may be a highly emotional situation. Because officers will normally overcome resistance with necessary force, the danger of escalating violence between the officer and the arrestee is great. What begins as an illegal misdemeanor arrest may culminate in serious bodily harm or death.
The control of man’s destructive and aggressive impulses is one of the great unsolved problems of our society. Our rules of law should discourage the unnecessary use of physical force between man and man. Any rule which promotes rather than inhibits violence should be re-examined. Along with increased sensitivity to the rights of the criminally accused there should be a corresponding awareness of our need to develop rules which facilitate decent and peaceful behavior by all.
The common law rule was developed in a time when self-help was a more necessary remedy to resist intrusions upon one’s freedom.
“[It] was developed largely during a period when most arrests were made by private citizens, when bail for felonies was usually unattainable, and when years might pass before the royal judges arrived for a jail delivery. Further, conditions in English jails were then such that a prisoner had an excellent chance of dying of disease before trial.” Warner, “The Uniform Arrest Act,” 28 Va. L.Rev. 315 (1942).
Section 5 of the Uniform Arrest Act provides: “If a person has reasonable ground to believe he is being arrested by a peace officer, it is his duty to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest.”
That provision, or its equivalent, has been enacted as statutory law in California, Rhode Island, New Hampshire, and Delaware. The Model Penal Code, Section 3.04(2)(a)(i) similarly prohibits the use of force “to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful.” In support of this provision Judge Learned Hand stated:
“The idea that you may resist peaceful arrest * * * because you are in debate about whether it is lawful or not, instead of going to the authorities which can determine, * * * [is] not a blow for liberty but on the contrary, a blow for attempted anarchy.” 1958 Proceedings, American Law Institute, at 254.
At least one state court has adopted the recommended rule as a matter of its common law development. State v. Koonce, 89 N.J.Super. 169, 214 A.2d 428 (1965). The legal literature contains discussions on how much force may be used by either an officer making a lawful arrest or by an unlawfully arrested person in resisting arrest. “Justification for the Use of Force in the Criminal Law,” 13 Stan.L.Rev. 566 (1961); “Criminal Law: Force That May be Used to Resist an Illegal Arrest,” 9 Okl.L.Rev. 60 (1956). At best only elastic standards can be employed, as so much depends upon the exigencies of the situation, the gravity of the offense, and the amount of force and counterforce used or threatened.
To us the question is whether any amount of force should be permitted to be used by one unlawfully but peaceably arrested. We feel that 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. The old common law rule has little utility to recommend it under our conditions of life today. We hold that a private citizen may not use force to resist peaceful arrest by one he knows or has good reason to believe is an authorized peace officer performing his duties, regardless of whether the arrest is illegal in the circumstances of the occasion. 4
Under this standard appellant was given the benefit of instructions to the jury more favorable than that to which he was entitled, as the case was submitted on the theory that one has a right to resist with force an unlawful arrest. We reject the claims of error both for the reason that the arrest was proper and because appellant in any event had no right to resist a peaceable arrest.
3. It is recognized, of course, that the grounds for arresting a person without a warrant for a misdemeanor committed in the presence of an officer are considerably more restricted than those which would constitute probable cause for a felony arrest without a warrant. By our opinion today we do not mean to imply any change in the rules concerning felony arrests.
4. It should be noted that the rule we formulate today has no application when the arrestee apprehends bodily injury, or when an unlawful arrest is attempted by one not known to be a peace officer. Quite different problems are then presented.”
* Miller v. State of Alaska, supra, additionally referenced in-part within: Fields v. State of Indiana, 382 N.E.2d 972 (1978); Burgess v. State of Florida, 313 So.2d 479 (1975).
The People of the State of Illinois v. Carroll, 133 Ill. App.2d 78 (1971): “1 A police officer may arrest a person when he has reasonable grounds to believe that the person has committed a criminal offense. (Ill. Rev. Stat., 1967, ch. 38, par. 107-2.) The test whether the officer had reasonable grounds for his belief is whether a reasonable and prudent man having the knowledge which the officer had would believe the person arrested guilty of the offense. (People v. Asey (1967), 85 Ill.App.2d 210, 229 N.E.2d 368.) We must conclude from Perkins’ own testimony that there was no probable cause for arresting Carroll. Perkins testified [133 Ill. App.2d 80] that Carroll had violated no law, federal, state or municipal. When asked the reason for his arrest, Perkins replied:
“The boy was told if he wouldn’t move back that he would be placed under arrest, at which time he jumped across the ditch, muffled something under his breath again, and I said, that’s it, you are under arrest * * *.”
Carroll was not placed under arrest because he had committed a criminal offense. He was not arrested because he disobeyed the order to move back; in fact, by jumping across the ditch he was complying with this order. He was arrested, according to the arresting officer himself, because he “muffled something under his breath.” Muttering to oneself is not a crime. While Perkins may have been displeased at Carroll's display of hostility, he had no reasonable ground for arresting him.
2, 3 Nonetheless, the lack of probable cause for the arrest does not exonerate Carroll from resisting it. Section 31-1 prohibits a person from knowingly resisting a police officer from performing an authorized act. “Authorized” means “endowed with authority.” (People v. Young (1968), 100 Ill.App.2d 20, 241 N.E.2d 587.) “Resisting” was defined in Landry v. Daley (N.D. Ill. 1968), 280 F.Supp. 938, as “withstanding the force or effect of or the exertion of oneself to counteract or defeat.” In speaking of “resisting” and “obstructing” the court stated:
“These terms are alike in that they imply some physical act or exertion. Given a reasonable and natural construction, these terms * * * proscribe only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer’s duties * * *.” See also People v. Raby (1968), 40 Ill.2d 392, 240 N.E.2d 595.
Carroll’s running away was a physical act which impeded and delayed his arrest; it was also a forcible act of resistance. A person may not use force to resist an arrest by one whom he knows to be an officer of the law, even if the arrest is unlawful. Ill. Rev. Stat., 1967, ch. 38, par. 7-7. A police officer may not make an arrest unless he believes that probable cause exists justifying the arrest. Whether there is probable cause is initially a question for the arresting officer. Ultimately, however, it is a question for the courts. If a court finds that there was no probable cause, the accused will be acquitted of the charge and evidence acquired as a result of the arrest will be suppressed. Since a police officer must make the initial determination, and since his office gives him the authority to make an arrest, an accused may not physically resist the arrest. He may inquire as to its reason; he may point out the officer’s mistake; he may protest and argue; but he may not impede the arrest by physical [133 Ill. App.2d 81] action. The public interest in discouraging violence and in insisting on the use of peaceable methods of obtaining release from unlawful custody outweighs the outrage felt by the individual who is subjected to unlawful police conduct. Committee Comments, S.H.A., ch. 38, sec. 7-7; cf. People v. Fort (1968), 91 Ill.App.2d 212, 234 N.E.2d 384. The invalidity of an arrest does not justify physical or forcible resistance under either par. 31-1 or 7-7. But cf. People v. Royer (1968), 101 Ill.App.2d 44, 242 N.E.2d 288.
The related character of sections 31-1 and 7-7 was discussed in Landry v. Daley, supra. The court noted that in spite of the fact that section 31-1 does not proscribe resisting or obstructing an unauthorized act of a police officer, a private citizen who forcibly resists arrest, even though the arrest is itself unlawful, violates section 7-7. Thus, in People v. Young, supra, this court recognized a distinction between the right of a citizen to resist an attempt by a police officer to serve him with a search warrant intended for another individual, and the absence of any right to forcibly resist a police”
Schneckloth v. Bustamonte, 412 U.S. 218, 246-249 (1973): “Much of what has already been said disposes of the argument that the Court’s decision in the Miranda case requires the conclusion that knowledge of a right to refuse is an indispensable element of a valid consent. The considerations that informed the Court’s holding in Miranda are simply inapplicable in the present case. In Miranda, the Court found that the techniques of police questioning and the nature of custodial surroundings produce an inherently coercive situation. The Court concluded that, nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.
384 U.S. at 458. And, at another point, the Court noted that, without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.
. . . There is no reason to believe, under circumstances such as are present here, that the response to a policeman’s question is presumptively coerced; and there is, therefore, no reason to reject the traditional test for determining the voluntariness of a person’s response. Miranda, of course, did not reach investigative questioning of a person not in custody, which is most directly analogous to the situation of a consent search, and it assuredly did not indicate that such questioning ought to be deemed inherently coercive. See supra at 232.
It is also argued that the failure to require the Government to establish knowledge as a prerequisite to a valid consent, will relegate the Fourth Amendment to the special province of “the sophisticated, the knowledgeable and the privileged.” We cannot agree. The traditional definition of voluntariness we accept today has always taken into account evidence of minimal schooling, low intelligence, and the lack of any effective warnings to a person of his rights; and the voluntariness of any statement taken under those conditions has been carefully scrutinized to determine whether it was in fact, voluntarily given. [n37]
Our decision today is a narrow one. We hold only that, when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact, voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. [n38] Because the California court followed these principles in affirming the respondent’s conviction, and because the Court of Appeals for the Ninth Circuit, in remanding for an evidentiary hearing, required more, its judgment must be reversed.”
State of Arizona v. Lockner, 20 Ariz. App. 367 (1973): “The defendant relies upon his claim of an unlawful arrest and his right to resist the same, “using such force as may be reasonably necessary, short of killing the arresting officer.” Dugan v. State, 54 Ariz. 247 at 250, 94 P.2d 873 at 874 (1939). The phrase “short of killing the arresting officer” chills this Court, especially in the matter of an arrest by law enforcement officers. While that statement is apparently the law in Arizona, in our opinion it invites violence. We believe the better rule is that under those circumstances the interest of the individual must give way to the interest of the public and the individual may seek his remedy following the arrest. These thoughts are expressed in People v. Carroll, 272 N.E.2d 822 (Ill. App. 1971.)”
State of Idaho v. Richardson, 511 P.2d 263 (1973): “In 1957 the California legislature changed the common law rule in that state by enacting the following statute:
“If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest.” West’s Ann.Pen.Code, § 834a.”
Commonwealth of Pennsylvania v. Supertzi, 235 Pa. Superior Ct. 95 (1975): “It is true that the right to resist an unlawful arrest, John Bad Elk v. United States, 177 U.S. 529 (1900), had not been abrogated in Pennsylvania by statute at the time of appellee’s and Tenney’s arrest. [3] However, in Commonwealth v. Beam, 227 Pa. Superior Ct. 293, 324 A.2d 549 (1974) (also decided under 18 P.S. § 4314), this court acknowledged the erosion of that concept with approval. The increasing complexity of the law of probable cause renders the legality of an arrest a highly technical area of the law. See e.g., [CITATIONS OMITTED] *99. The technicalities involved in determining the validity of a warrantless arrest, coupled with the availability of civil remedies for false arrest, have led many to conclude that there is no right forcibly to resist an arrest by a known officer of the law, whether or not the arrest is subsequently determined to be unlawful. [4] A rationale often used as support for this position is that the participants in such an altercation seldom have the time or the emotional stability necessary to make a legal judgment of the rights involved. There is a strong likelihood that a decision made under those circumstances will be wrong, thus increasing the likelihood that useless violence will occur. Any rule which creates a high risk of useless violence can only be upheld by the strongest of justifications.
In this case, the issue of whether one can forcibly resist an unlawful arrest is not before us. The issue here is whether one can aid another in forcibly resisting an arrest subsequently determined to be unlawful. [5] Under such circumstances, the person coming to the aid of the arrestee is likely to have even less facts at his disposal for determining whether the arrest is lawful, than the one who is being arrested. This case provides a perfect illustration of that fact, for the appellee had no knowledge from which to determine the legality of Tenney’s arrest. To hold that the appellee’s conduct could be justified by a subsequent determination that the arrest of Tenney was unlawful, would mean that the would-be rescuer could *100 join the fray without any idea of whether the arrestee’s conduct is legal or not.
We hold that there was and is no right forcibly to aid another in resisting an unlawful arrest.
[3] As of June 6, 1973, the use of force to resist an unlawful arrest by a known police officer is unjustifiable. Act of December 6, 1972, P.L. 1482, No. 334, § 1 (18 Pa.C.S. § 505(b)(1)(i)).
[4] In addition to the authorities cited in Commonwealth v. Beam, [CITATIONS OMITTED].
[5] The lower court held that the arrest of Tenney was unlawful because the arresting officer was without a warrant, and because there was no probable cause to arrest. Our disposition of this case renders it unnecessary for us to decide that issue at this time.”
Burgess v. State of Florida, 313 So.2d 479 (1975): “We support the reasoning and the conclusion so well articulated by the Supreme Court of Alaska in its opinion in Miller v. State, Alaska 1969, 462 P.2d 421, 426-27, wherein that court receded from the common law rule which allows forceful resistance to an unlawful arrest, stating: [See quotation, supra.] . . .
In State v. Richardson, 1973, 95 Idaho 446, 511 P.2d 263, the court adopted the rule elaborated by the Supreme Court of Alaska. Another recent case expressing dissatisfaction with the common law rule is State v. Lockner, 1973, 20 Ariz.App. 367, 513 P.2d 374, 378.
The quoted extract from the opinion in Miller, supra, is consonant with the tenor of this court’s opinion in Daniel v. State, Fla.App.2d 1961, 132 So.2d 312, requiring law enforcement officers to make known their official capacity before making an arrest, and with the philosophy of this court’s opinion in State v. Fulkerson, Fla. App.2d 1974, 300 So.2d 275, that one imprisoned under some color of law is not entitled to resort to self-help but rather may apply for his release through regular channels of the law.”
Fields v. State of Indiana, 382 N.E.2d 972 (1978): ‘In Heichelbech, supra, and in Williams, supra, both this court and our Supreme Court recognized that at common law a person was permitted to resist an unlawful arrest with reasonable force. However, both the court in Heichelbach, supra, and the court in Williams, supra, quickly pointed out that recent cases have held that a private citizen may not use force in resisting a peaceful arrest by a person which he knows or has good reason to know was a police officer performing his duties, regardless of whether the arrest was legal or illegal.
We are of the opinion that the common law rule is outmoded in our modern society. A citizen, today, can seek his remedy for a policeman’s unwarranted and illegal intrusion into the citizen’s private affairs by bringing a civil action in the courts against the police officer and the governmental unit which the officer represents. The common law right of forceful resistance to an unlawful arrest tends to promote violence and increases the chances of someone getting injured or killed. In Miller v. State (1969), Alaska, 462 P.2d 421, 426-427, the Supreme Court of Alaska stated the following: [See quotation, supra.] . . .
In the case at bar we hold that although Wilson Fields’ initial arrest was unlawful, he was not entitled to forcefully resist Officer Fields’ attempt to apprehend him. We note that this appeal does not address issues that arise when an arrestee apprehends that the arresting officer is using excessive force and that unless the arrestee defends himself, he is likely to suffer great bodily harm or death. Nor does this appeal deal with issues that are presented when an unlawful arrest is attempted by one not known to be a law enforcement officer. Our holding is limited to the fact situation presented in the case at bar.’
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