Rodgers v. State

Sweeney, J., delivered the opinion of the Court. In this case we are asked to decide whether a citizen was entitled to resist an arrest made upon a warrant that was defective on its face. The warrant in question charged that Barry Rodgers (Appellant’s full name is Zachariah Barry Rodgers) “unlawfully did assault one Lillie Clark, via telephone, by threatening then and there to do bodily harm unto her in Balto. City, Md. on 5 July 1974.” The State concedes that one cannot commit an assault “via'telephone.” Therefore, as the warrant was defective, the arrest was illegal as a matter of law.

The agreed statement of facts (Maryland Rule 828 g) discloses that on July 7, 1974, Baltimore City Police Department Officers Coates and Morgan were on routine patrol at 1:00 p.m. when they received a call requesting their assistance in serving an arrest warrant. The officers, who were uniformed, arrived at the residence of the Appellant, where they were met by a third officer who was stationed in front of the house. After receiving a description of Appellant, Officers Coates and Morgan checked the rear of the residence and discovered that he had departed. They then began to cruise the area in their patrol car, and approximately 15 minutes later observed the Appellant (whom they recognized from the description) in an alleyway approximately three blocks from his home.

The officers left the patrol car, approached Rodgers, and asked him to identify himself, and he replied that his name was “Barry.” Officer Coates thereupon advised the Appellant that there was a warrant outstanding for his arrest and asked him to accompany them, in order that the warrant could be ⁴⁰⁸ “checked out.” 1 The Appellant initially appeared to comply, so the officers neither searched nor handcuffed him as they walked toward the police vehicle. As they left the alleyway, with the officers flanking the Appellant and Officer Coates holding his elbow, they encountered the mother of the applicant for the warrant, who positively identified the Appellant as the person charged in the warrant. Immediately after the identification, Rodgers turned and grabbed Officer Coates around the waist, causing the officer and himself to fall to the ground. During the ensuing struggle, Rodgers allegedly wielded a straight edged razor and slashed Officer Coates across the arm, inflicting three wounds.

Officer Coates screamed to Officer Morgan, “don’t let him get my gun, don’t let him get my gun,” and after hearing this and observing blood “sopping” from the sleeve of Officer Coates, Officer Morgan struck Rodgers on the head and on the hand, subduing him. He was then placed in the patrol car. Rodgers was charged with resisting arrest and possession of a deadly weapon, and was tried in the Criminal Court of Baltimore by a jury, with Judge Robert Karwacki presiding. At trial, Rodgers testified in his own behalf.

He said that police officers came to his home while a domestic quarrel was in progress, and that he then walked away from the house. He testified further that as he was walking in an alley, Officers Coates and Morgan confronted him, told him that his name was Barry Rodgers, and that even though he denied that identity the officers grabbed his arm. He testified that as he was being taken to the police vehicle by the officers, he began arguing with them, inquiring as to whether they possessed a warrant and declar ⁴⁰⁹ ing “I ain’t done nothing.” The Appellant testified further that in response to his “quarreling,” one of the officers struck him in the face, knocking his glasses off. He said that he then grabbed the officer and they both fell to the ground, and that the other officer then twice struck him on the head with a blackjack.

The Appellant denied being in possession of a razor and suggested that the wounds incurred by Officer Coates resulted from glass and other sharp objects in the area. He stated further that the razor that was subsequently recovered was “planted” in the rear seat of the police car. One Glenda Farabee testified that although she was not aware of how the struggle began, she had observed an altercation between Rodgers and the police. She testified that she saw police beat and handcuff Rodgers and take him away, and that she did not see a razor.

It was stipulated in the record that if another citizen named Calvin Knox were present, he would testify in substance to the same events described by Glenda Farabee. Rodgers was found not guilty of possessing a deadly weapon, but guilty of resisting arrest, and was sentenced to three years in prison. The conviction was affirmed by the Court of Special Appeals, Rodgers v. State, 32 Md. App. 90 , 359 A. 2d 122 (1976), and on September 29,1976, we issued a Writ of Certiorari. At trial, the Appellant filed a motion for judgment of acquittal, alleging that his arrest was unlawful and he was entitled to use reasonable force to resist it.

In denying the motion, Judge Karwacki said: “It’s a question of where you challenge it. What I am saying, when a citizen who is approached by a uniformed police officer who makes his identity known to the Defendant under arrest and pursuant to the command of a judicial officer, that citizen must submit to the arrest and has no power or no right to resist that arrest pursuant to a warrant properly issued by a judicial officer. To rule otherwise, I think, would be to invite chaos.” ⁴¹⁰ The Court of Special Appeals concurred, holding that: “Otherwise stated, an individual may not lawfully use force to resist an arrest where he has been advised by authorized police officers that a warrant for his arrest has been duly issued and that, pursuant to the command of the warrant, the officers are endeavoring to effect his arrest, even though it is later determined at a judicial hearing the warrant was defective. We find no error in the trial judge's refusal to grant the appellant's motion for judgment of acquittal.” Rodgers v, State, supra, at 97.

It is the correctness of that statement of the law that we are asked to review. In Sugarman v. State, 178 Md. 52, 57 , 195 A. 324 (1937), we held that “... one illegally arrested may use any reasonable means to effect his escape, even to the extent of using such force as is reasonably necessary”, and we held to that view in Williams v. State, 204 Md. 55 , 102 A. 2d 714 (1954), Kellum v. State, 223 Md. 80 , 162 A. 2d 473 (1960), and Childress v. State, 227 Md. 41 , 175 A. 2d 18 (1961). Each of these cases, however, dealt with factual situations in which the arrest was made by a peace officer without a warrant, because of crimes allegedly committed in his presence, and we have never considered heretofore the question of whether a citizen arrested on a warrant which is later determined to be defective is entitled to resist that arrest. In Sugarman and our subsequent decisions on the point, we elected to follow the rule which has long existed at common law and which had been adopted by almost every American jurisdiction.

In the case at hand, however, we have no such unmistakable beacon to guide us, for there is ambiguity and confusion as to the extent to which the right’ to resist an arrest made on a defective warrant existed at common law, and there is no consensus among American authorities as to what defect in a warrant is sufficient to render it null and void. The common law rule regarding the right to resist an ⁴¹¹ illegal arrest first appeared in English law more than 800 years ago, in Hopkin Huggett’s Case, 84 Eng. Rep. 1082 (K. B.1666). In that case a eonstable was illegally attempting to impress a man into the Army, when the defendant and others who were onlookers killed the constable, although the victim of the impressment apparently offered no resistance.

The court, after reducing the charge from murder to manslaughter, said: "[!]£ a man be unduly arrested or restrained of his liberty by three men, aitho’ he be quiet himself, and do not endeavor any rescue, yet this is a provocation to all other men of England, not only his friends but strangers also for common humanity sake, as my Lord Bridgman said, to endeavor his rescue.” Forty-four years later, in The Queen v. Tooley, 2 Ld. Raym. 1297, 92 Eng. Rep. 349 (Q. B. 1710), the court spoke even more firmly of the right to resist an unlawful arrest. In that case a constable trying to arrest one Anne Dekins, whom he suspected of being a disorderly person, was accosted by certain persons who assaulted him in an effort to effect her rescue from his custody.

The eonstable persuaded the rescuers that he was about the Queen’s business and intended them no harm, whereupon they let him pass. Subsequently, however, they confronted him again and renewed the assault. The constable called another citizen, one Dent, to his assistance, and Dent was killed by one of Dekins’ defenders, who was thereafter charged with murder. The court, citing as its authority Hopfdn Huggett’s Case, supra, reduced the charge to manslaughter and stated that: “[A] man ought to be concerned for Magna Charta and the laws, and if anyone against the law imprison a man, he is an offender against Magna Charta.

We seven hold this to be sufficient provocation, and we have good authority for it: in Hopkin Huggett’s case ... (and the case is stronger than that).” ⁴¹² Although in both Hopkin Huggett’s Case and Tooley the court merely reduced a murder charge to manslaughter because of the illegal arrest, the English courts thereafter, with those cases as precedent, uniformly ruled that in cases where one was charged with assault for resisting an illegal arrest, the provocation of that arrest was sufficient to excuse the assault altogether. For example, in The King v. Thompson, 168 Eng. Rep. 1193 (K. B. 1825), the court excused an assault on a constable who attempted to arrest a journeyman merely because the journeyman’s master “suspected that he had tools of his, and was leaving his work undone,” and in The King v. Curvan, 168 Eng.

Rep. 1213 (K. B. 1826), they freed a man who was charged with assault on a constable who sought to arrest him for “insulting” a third party complainant. 2 During the 19th and early 20th Centuries the common law rule was adopted by a host of states, and had become the established American rule long before our decision in Sugarman. See Bad Elk v. United States, 177 U. S. 529 , 20 S. Ct. 729 , 44 L. Ed. 874 (1900), and United States v. DiRe, 332 U. S. 581 , 68 S. Ct. 222 , 92 L. Ed. 210 (1948). In 1861, 195 years after the common law rule regarding resisting an illegal warrantless arrest was adopted in Hopkin Huggett’s Case, supra, the English courts considered the question of whether that right extended to arrests made upon a defective warrant in The Queen v. Davis, 1 Leigh & Cave, C.C. Res. 64 (1861). Davis had been convicted of assault on a bailiff who was attempting to arrest him under the authority of a warrant which was in proper form but lacked certain collateral documentation that was then required.

The appellate court was obviously troubled by the question presented, as is indicated by the colloquy set out in the opinion, but affirmed the conviction. A com ⁴¹³ ment of Justice Blackburn, however, seems to have set the stage for the conflict in authorities that has existed thereafter, when he said, at 75: “[PJrovided the process be not defective in the frame of it, and be issued by a Court or magistrate having jurisdiction in the case, the killing of a minister of justice in the execution of it will be murder, although there may have been error or irregularity in the proceeding previous to issuing the process; for the officer must at his peril pay obedience to it.” (Emphasis supplied.) The English courts thereafter made a basic distinction in cases of resistance to arrests made upon defective process: “A legal process which is valid ‘on its face’ must be obeyed, but one that is patently unlawful is such a provocation to the citizen that the criminal element in his resistance is reduced, if not removed entirely.” Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128 , 1131 (1969). American courts too, in the main, adopted the English rule, excusing resistance to legal process only in those eases where that process was bad “on its face,” but they proceeded to differ widely on the question of what constitutes such a fatal defect. For example, in United States v. Thompson, 28 F. Cas. 89 (2d Cir. 1828), the court acknowledged that an arrest warrant was void because the act charged had been committed outside the justice’s territorial jurisdiction, but notwithstanding this substantial defect, the court hold, at 90, that if the warrant “purports to have been issued within [the magistrate’s] jurisdiction, and is in other respects formal,” the officer is bound to execute it, and the defendant may not lawfully resist.

In New Hampshire v. Weed, 21 N. H. 262, 269 (1850), the New Hampshire Supreme Court affirmed a conviction for assault where there was an irregularity in the manner in which the oath was taken from the complainant, stating that if a process is regular or legal in its frame, bears upon ⁴¹⁴ its face all the requisites to make it perfect in form and in substance, and appears to have been issued by a court or magistrate having jurisdiction of the subject matter and of the person or property of the party to whom it is directed, the officer is protected in the service, notwithstanding any error or irregularity; and if the party to whom the process is directed resists the service, he will be criminally liable. The New Hampshire court then went on, however, to give examples of defects upon the face of a warrant sufficient to render it so void as to excuse resistance thereto. Those examples were, inter alia, where the requisite seal was not affixed to the warrant; where the name of the sheriff ordered to execute the warrant had been improperly inserted after the warrant was issued; where a constable attempted to execute a warrant outside of his geographic jurisdiction; and where blank warrants were signed by a sheriff and then forwarded to a clerk to be filled out. At least a dozen states and several federal jurisdictions have wrestled with the problem of what constitutes a fatal defect in a warrant, and the question has been one of considerable appeal to legal writers and scholars.

Appling v. Arkansas, 95 Ark. 185 , 128 S. W. 866 (1910), 28 LRA NS 548; Crabtree v. Arkansas, 238 Ark. 358 , 381 S. W. 2d 729 (1964); Connecticut v. Cesero, 146 Conn. 375 , 151 A. 2d 338 (1959); Gyro Brass Mfg. Corp. v. United Auto., A. & A. I. Workers, 147 Conn. 76 , 157 A. 2d 241 (1959); Bowers v. People, 17 Ill. 373 (1856); Sandford v. Nichols, 13 Mass. 286 (1816); Commonwealth v. Kirby, 56 Mass. (2 Cush.) 577 (1849); Morrill v. Hamel, 337 Mass. 83 , 148 N.E.2d 283 (1958); Missouri v. Dickerson, 24 Mo. 365 (1857); Montana v. Bradshaw, 53 Mont. 96 , 161 P. 710 (1916); North Carolina v. Curtis, 2 N. C. (1 Hayw.) 471 (1797); People v. Warren, 5 Hill 440 (1843); Witherspoon v. Texas, 42 Tex.

Crim. 532 , 61 S. W. 396 (1901); Meador v. Texas, 44 Tex. Crim. 468 , 72 S. W. 186 (1903); Nolty v. Wisconsin, 17 Wis. 668 (1864). See also Brown v. Alabama, 109 Ala. 70 , 20 So. 103 (1895); Spear v. Alabama, 120 Ala. 351 , 25 So. 46 (1898); North Carolina v.