Mickelson v. State
Annotate this Case
Mickelson v. State
1994 WY 130
886 P.2d 247
Case Number: 93-195
Decided: 11/22/1994
Supreme Court of Wyoming
MATTHEW A. MICKELSON,
Appellant (Defendant),
v.
THE STATE OF WYOMING,
Appellee (Plaintiff).
Rehearing Granted
December 20, 1994
Appeal from the District Court of Albany
County: The Honorable Arthur T. Hanscum,
Judge.
Representing Appellant: Robert T. Moxley of
Gage & Moxley, Cheyenne, WY.
Representing Appellee:
Joseph B. Meyer, Attorney General; Sylvia Lee Hackl, Deputy Attorney General;
Barbara L. Boyer, Senior Assistant Attorney General; and Mark T. Moran,
Assistant Attorney General.
Before GOLDEN, C.J., and THOMAS, CARDINE,
* MACY, and Taylor, JJ. Cardine, J., Ret., delivered the opinion of the
court. THOMAS, J., filed a dissenting opinion in which TAYLOR, J.,
joined.
* Retired July 6, 1994.
CARDINE, Justice,
Retired.
[¶1] Matthew A.
Mickelson (Mickelson) appeals his conviction for misdemeanor interference with a
peace officer. Mickelson was charged and convicted of the offense for refusing
to allow police entry into a bar after hours for the purpose of checking for
violations of the liquor laws. Because there were not reasonable grounds to
demand entry pursuant to the liquor laws,
[¶2] We reverse.
[¶3] Mickelson raises six issues:
I.
Did the trial court commit error of law in its interpretation of the law of
arrest?
II. Did the trial court commit error of law in its
interpretation of the law of search and seizure?
III. Did the
trial court commit error of law in its interpretation of the statutory right of
police officers to make warrantless regulatory inspections of locked business
premises?
IV. Did the county court commit error of law in binding
over the case in the absence of evidence sufficient to sustain a probable cause
finding on an essential element?
V. Did the trial court commit
error of law in allowing the prosecution to pursue theories possibly
inconsistent with the verified information, and in variance to the preliminary
hearing showing?
VI. [Was] the partially probationary sentence
characterized by abuse of discretion in the pronouncement of terms of
probation?
[¶4] The State
condenses the issues to three:
I.
Probable cause existed to arrest appellant and sufficient evidence existed to
support his conviction for misdemeanor interference with a peace
officer.
II. Charges of interference with a peace officer remained
the same before and after the preliminary hearing.
III. Appellant
was properly sentenced by the district court.
FACTS
[¶5] Early on the
morning of January 7, 1993, Officer Michael Ernst of the Laramie Police
Department was on routine patrol in downtown Laramie. At 2:37 a.m. Officer Ernst
was driving past the Fireside Bar and Lounge (the bar) when he noticed two men
playing pool inside. Officer Ernst became suspicious because liquor
establishments are supposed to stop serving at 2 a.m. and customers have to
vacate the dispensing room by 2:30 a.m. Officer Ernst was also concerned because
he could not see the bartender inside the bar, although her car was parked
outside.
[¶6] Officer Ernst
parked across the street where he could observe the two pool players. The pool
table room is not the dispensing room. Officer Foreman arrived shortly
thereafter and joined Officer Ernst in the surveillance. After watching for six
or seven minutes, the lights went out in the bar. Officer Foreman, who had been
using binoculars, reported that the pool players had apparently noticed the
police just before the lights went out.
[¶7] The officers
decided to wait and see if anyone would exit the bar. When no one exited, the
officers decided to check the situation out. As they approached the bar, Officer
Foreman noticed a figure trying to hide in the bar. At that point Officer Ernst
called for backup.
[¶8] While searching
the interior of the bar through a window with their flashlights, Mickelson
appeared inside and approached a window. Officer Ernst informed Mickelson that
the police wanted to enter the bar to make sure everything was all right.
Mickelson refused to unlock the door, and he began pacing around inside while
cursing the officers, telling them to get a warrant.
[¶9] As other officers
began to arrive at the scene, Officer Ernst noticed an individual, later
identified as Daniel Peck, standing inside, smiling and holding a pool cue.
Also, at about this time, the female bartender came into view; and she began
yelling at Mickelson to open the door. Mickelson all the while was continuing
with his profane tirade.
[¶10]
Officer Ernst concluded that they would not be able to get Mickelson to
open the door, so he had police dispatch contact the owner of the bar,
Mickelson's mother (Mrs. Mickelson). Mrs. Mickelson spoke with the bartender and
her son on the phone.
[¶11]
Shortly thereafter Mickelson apparently decided that it would be all
right for one of the officers to enter the bar. Mickelson unlocked the door with
the intention of letting only Officer Reggie Prahl inside. However, Officer
Ernst testified that he did not want her entering the bar alone in that volatile
situation, so he and Officer James Rigdon followed her inside.
[¶12] As soon as Officer Ernst entered
the bar, Mickelson swore at him and tried to push him out of the bar. Mickelson
did not want Officer Ernst inside and never gave permission to Ernst to enter.
Apparently there had been several prior disagreeable incidents between Officer
Ernst and members of the Mickelson family. Mickelson testified that he was
fearful of Officer Ernst. At that point, Officer Ernst attempted to arrest
Mickelson for interference for his refusal to let the officers into the bar. A
melee ensued, and it took three officers and an electric "stun gun" to finally
subdue Mickelson. At the same time it took two officers wielding batons to
subdue Peck, who attempted to come to Mickelson's aid.
[¶13] Mickelson was charged with felony
interference with a peace officer. A jury returned a verdict of guilty on the
lesser included offense of misdemeanor interference with a peace officer. The
trial judge sentenced Mickelson to 90 days in jail, a $ 1,000 fine, and nine
months probation, one term of which was that Mickelson could not work in an
establishment whose main source of income was the sale of alcohol.
Mickelson appeals his conviction and that part of his sentence which limits his
employment.
DISCUSSION
[¶14] Mickelson was convicted of
misdemeanor interference with a peace officer pursuant to W.S. 6-5-204(a)
(1988), which provides:
(a) A person commits a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($ 1,000), or both, if he knowingly obstructs, impedes or interferes with or resists arrest by a peace officer white engaged in the lawful performance of his official duties.
(Emphasis
added.) Mickelson contends that the police were not "engaged in the lawful
performance" of their duties because their entry into the bar was unlawful.
Mickelson argues that neither the search and seizure standard of Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) or Title 12 of the
Wyoming Statutes (the liquor laws) provide a sufficient legal basis for an
after-hours inspection of a liquor establishment.
[¶15] The State counters with W.S. 12-2-304(c) (1986), which provides:
(c) If any licensee refuses to permit the entry of an agent of the [liquor] commission to his place of business or storage place for the purpose of inspection, his license may be revoked as provided by law. Entry for purposes of inspection is authorized only during open business hours unless it is in the presence of the licensee or his duly authorized representative or unless the officer making entry does so under court order or has reasonable grounds to believe that evidence of any violation of this title is within the place to be entered.
(Emphasis
added.) The State argues that, given the circumstances, the police had
reasonable grounds to believe that a liquor violation may have been occurring in
the bar.
[¶16] We begin
our analysis with the grounds cited by the police to support their decision to
enter the bar. The police entry into the bar was based on suspicions which were
raised by the circumstances: (1) they feared the bartender may have been the
victim of domestic violence; (2) there may have been a robbery in progress; (3)
minors may have been present; and (4) non-employees may still have been in the
bar. The question we must answer is whether these suspicions gave the officers
"reasonable grounds" to enter the bar after hours.
[¶17] The place we begin is with the
language of the statute, W.S. 12-2-304(c). The statute's language plainly
authorizes entry after hours only when an officer has reasonable grounds to
believe that evidence of a violation of "this title" is occurring inside the
place to be entered. The phrase, "this title," refers to Title 12 of the liquor
laws since that is the title in which the statute appears. Thus, for purposes of
entering a liquor establishment after hours under W.S. 12-2-304(c), only
violations of Title 12 can be the basis of an officer's reasonable
grounds.
[¶18] Going
back to the police officer's stated grounds for entering the bar in this case,
we find that only two of the grounds are relevant to our inquiry under W.S.
12-2-304(c): Title 12 prohibits minors from entering bars, W.S. 12-5-203 (1986),
and it also forbids nonemployees from remaining in the dispensing room after
hours, W.S. 12-5-101(a) (1986). Whether a robbery or domestic violence was
occurring is irrelevant to an inquiry under W.S. 12-2-304(c) because they are
not violations of Title 12.
[¶19] Next, we must determine when it was
that the police officers decided to enter the bar. The statute, W.S.
12-2-304(c), requires reasonable grounds as the basis for the entry - thus,
logically, the officers must have reasonable grounds before they decide to
enter. See Wilson v. State, 874 P.2d 215, 225 (Wyo. 1994) (officer must
have reasonable suspicion of illegal activity before he can detain a person for
questioning). Post hoc rationalizations cannot justify a decision to enter
without reasonable grounds. See State v. Welch, 873 P.2d 601, 606 (Wyo.
1994) (Cardine, J., dissenting) (suspicions developed after decision to call
canine unit are irrelevant to reasonable suspicion inquiry).
[¶20] Officers Ernst and Foreman had
decided to leave their observation position and approach the bar to "check it
out" and to "contact" the people inside. The first person contacted by the
police was Mickelson, at which time the police immediately demanded entry into
the bar. Between the time the police approached the bar at 2:48 a.m. and the
contact with Mickelson, sometime prior to 2:52 a.m., the record discloses no
additional facts which would create reasonable grounds to demand entry. Thus, at
the time the police made contact," they demanded entry. It was at that
time that they decided to enter the bar, and it was at that time that reasonable
grounds to believe a violation was occurring was necessary. That time span is
very small.
[¶21] The
critical question then is: Whether the police had reasonable grounds to believe
there was a violation of the liquor code at the time they decided to enter the
bar. We conclude that reasonable grounds were not present. There simply was no
evidence at the time the officers approached the bar and demanded entry that
there was a violation of Title 12. There is nothing in the record to suggest
that minors or non-employees were present inside. But see United States v.
Thomlinson, 897 F.2d 971(8th Cir. 1990) (warrantless search reasonable where
patron leaving tavern informed officers after-hours drinking was going on and
where officers requested admittance and door was voluntarily opened). In fact,
the police themselves did not believe at that time that a violation of Title 12
was occurring in the bar. Officer Ernst testified:
[Prosecutor]
Did you have reasonable grounds, even as you approached the liquor
establishment, to believe that there was a violation of the liquor code
going on at that time?
[Officer Ernst] Probably not at that time,
no. Again, I only saw people playing pool, and they shut the lights off and
didn't come out, so at that point I just had what I would say is peculiar
behavior due to the fact that no one was coming out after they shut out all the
lights.
Shutting
off the lights and not immediately leaving the bar is not a violation of the
liquor code. Officer Ernst's testimony shows that he had failed to formulate
reasonable grounds prior to the decision to enter the bar. See Wilson,
874 P.2d at 225. Therefore, the police officers did not have the right to demand
entry into the bar pursuant to W.S. 12-2-304(c).
[¶22] Since we have found that the police
could not lawfully enter the bar pursuant to W.S. 12-2-304(c), they were not
"engaged in the lawful performance" of their official duties, and Mickelson
could not have interfered with them.
[¶23] The State also suggests that the
officers had independent grounds to justify their entry into the bar. The State
argues that there was probable cause that a crime was being committed, robbery
or domestic violence, which gave rise to exigent circumstances justifying a
warrantless entry.
[¶24]
The record fails to show that the State presented this argument in the
court below. Furthermore, the police officers, in their testimony, never
attempted to justify their entry in those terms, nor did they claim entry
pursuant to permission. To the contrary, the police maintained throughout that
their entry was pursuant to the liquor laws. Also, whatever the standards are
for reasonable grounds, it is most assuredly easier to meet than the standards
for probable cause. Since the officers did not have reasonable grounds to enter,
they did not likely have probable cause to enter; but we need not decide that
question, it not being raised in the trial court but only for the first time on
appeal. Were our decision otherwise, there might also be a problem with the term
of probation that prohibited Mickelson from working at his occupation as a
bartender. But because of our reversal, we likewise need not answer that
question.
CONCLUSION
[¶25] The police did not have reasonable
grounds to demand entry to the bar pursuant to W.S. 12-2-304(c). Since the
police did not have authority to demand entrance, Mickelson's refusal to admit
them did not result in an interference with the performance of the
officer's official duties. Therefore, an essential element of the crime is
missing, and Mickelson's conviction must be, and it is
[¶26] Reversed.
THOMAS,
Justice, dissenting, with whom TAYLOR, Justice, joins..
[¶27] This court has decided a far
different case from the one presented to the district court. I cannot agree
there is a different case to be decided and, since I believe the trial court
correctly dealt with the case, I am compelled to dissent.
[¶28] The departure emerges promptly in
the majority opinion, which asserts Mickelson was charged and convicted of the
offense of misdemeanor interference with a peace officer for refusing to allow
police entry to a bar after hours. The opinion goes on to endeavor to explain
that, since the police officers did not have reasonable grounds to believe a
violation of the liquor code might be occurring, they had no authority to arrest
Mickelson for refusing them entry to a bar. This is a very interesting
theory.
[¶29] The
district court perceived the information in the record as I perceive it. It
probably is debatable as to whether the officers had reasonable grounds to
demand entry. Nevertheless, the record seems clear the owner of the bar,
Mickelson's mother, directed Mickelson to permit the officers to enter. The
majority even emphasizes language from Wyo. STAT. § 12-2-304(c) (1986) to the
effect that entry for purposes of inspection is authorized only during open
business hours unless it is in the presence of the licensee or his duly
authorized representative. This entry was effected in the presence of the duly
authorized representative of the licensee. Apparently, Mickelson decided to
attach his own conditions to those articulated by the licensee and insisted that
only a female officer could enter the premises.
[¶30] The other officers, recognizing
this would be a gross breach of police procedures, entered with the female
officer. Mickelson promptly made contact with Officer Ernst in an effort to push
him out the door. At that time, Ernst told Mickelson he was under arrest for
interference. Rather than relying upon some rather subjective information
invoked by the majority, I prefer to look to the objective fact that Mickelson
was only arrested after he had made physical contact with Officer
Ernst.
[¶31] My
perception of the case then, very much like the trial court's, is that whatever
the issues might have been with respect to the entry by the officers, they
were present after the licensee had directed Mickelson to admit them.
Mickelson's right to assault a police officer should not hinge upon a later
conclusion that, based upon technicalities, the officer had no right to be on
the premises. Mickelson chose to take the law into his own hands and should not
be heard to complain about the consequences of that activity.
[¶32] I would hold the officers came
within the scope of the liquor code in this instance because they sought, and
apparently had, the permission of the licensee to enter the premises to make an
inspection. Mickelson's unwarranted assault upon Officer Ernst led to his
conviction of interference with a police officer, and that conviction should be
affirmed. The majority does hint there may be an unlawful condition in the
probation requirements relative to employment. If the conviction were to be
affirmed, as I think it should be, that matter would have to be addressed, but
since the majority has reversed the conviction, there is nothing to be gained by
further debate on that question.
[¶33] I would affirm the conviction of
Mickelson for interference with a peace officer.
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