Spry v. State

396 Md. 682 George Junior SPRY v. STATE of Maryland.

No. 42 September Term, 2006. Court of Appeals of Maryland.

January 16, 2007.

Argued Before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

Opinion by BATTAGLIA, J.

Petitioner, George Junior Spry, seeks review of a judgment of the Court of Special Appeals affirming his conviction for failure to obey a police officer’s reasonable and lawful order to prevent a disturbance to the public peace, in violation of Section 10-201(c)(3) of the Criminal Law Article, Maryland Code (2002), where Spry had been arrested after a warrant was secured on the day following the disturbance.

Facts

During the evening of April 19, 2004, between 6:00 and 8:00 p.m., the Federalsburg Police Department intervened in several disputes in progress. Around 7:20 p.m., an altercation occurred near the Garden Court Apartments. Officers Jester and McNeill were dispatched to the scene after the Caroline County Sheriff’s Department received a 911 call regarding a fight between forty and sixty people. When they arrived, Officer Jester determined that the argument was over, but that numerous people, including Spry, were loitering at the location. Officer Jester ordered those present to immediately leave the location if they did not live in the Garden Court Apartments. Spry, who was not a resident of the Garden Court Apartments refused to leave. What happened next was the subject of the following testimony of Officer Jester:

[T]hat’s where Mr. Spry became involved in the incident. He was in the apartments there, he’s not a resident of those apartments. He was advised by myself to move along, and Mr. Spry right in my face, looked at me and said, “F*** you b****.” He continued to stand in front of me defiantly refusing to move and to leave the area. He stood his ground firmly, like he’s not going anywhere. . . . Mr. Spry refused to move. Again I advised Mr. Spry it was time to move along which he responded with to me, with more profanity. Mr. Spry continued to, what we called eyeball, just glare at me, like he was looking through me.

Officer Jester then ordered Spry to move along “at least four or five times” within the space of five to ten minutes.

Officer McNeill testified similarly about the interaction at the Garden Courts Apartment complex, noting that there were many individuals, including Spry, who were menacing, shouting obscenities at the officers, and creating a disturbance.

Officer Jester filed a statement of charges during the afternoon of the following day and Spry was arrested pursuant to a warrant on April 21, 2004.

Spry was convicted by a jury on failing to obey a lawful order that a law enforcement officer makes to prevent a disturbance to the public peace in violation of Section 10-201(c)(3).

ISSUES: Was Petitioner improperly convicted of failing to obey a police order to leave the scene when he did leave and there was no attempt to arrest him when the order was given?

Discussion

The relevant portion of Section 10-201 of the Criminal Law Article provides that “[a] person may not willfully fail to obey a reasonable and lawful order that a law enforcement officer makes to prevent a disturbance to the public peace.” Maryland Code (2002), Section 10-201(c)(3) of the Criminal Law Article. This Section codifies one aspect of the common law crimes of disorderly conduct and breach of the peace.

Arrest is not an element of the offenses of disorderly conduct and breach of the peace. Rather, the Court interpreted what constitutes a breach of the peace as disorderly, dangerous conduct, “an affray, actual violence, or conduct tending to or provocative of violence by others.” While disorderly conduct offenses are presently codified in Section 10-201 of the Criminal Law Article, “the gist of the crime of disorderly conduct … as it was in the cases of common law predecessor crimes, is the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area.”

Likewise, the court have never held that arrest is an element of what was defined specifically as the failure to obey a police officer’s lawful command, another type of disorderly conduct. In the past, the Court has stated that failure to obey a policeman’s command to move on when not to do so may endanger the public peace, amounts to disorderly conduct. Refusal may interfere with the public order and lead to a breach of the peace. A person’s refusal can only be justified where the circumstances show that the police officer’s direction was purely arbitrary and was not promoting the public order.

They have never held that a person must be arrested after the first disobedience rather than after repeated refusal to move in order for a conviction to be sustained. They have affirmed convictions for failing to abide by a police officer’s lawful order even though the individual was issued multiple orders and was not arrested immediately after the first order was disobeyed.

Spry argues, nonetheless, that police are required to arrest immediately after the first disobedience, because otherwise, the violator’s actions must be construed as compliance with the order. However, it is the police officer who retains the discretion to affect an arrest. The discretionary aspect of a law enforcement officer’s authority when arresting without a warrant at the scene of a misdemeanor, such as in the present case, is limited ordinarily only by a need for the arrest to be effectuated in “due time.” In the present case, Officer Jester arrested Spry two days after the violation, which may or may not have implicated the issue of delay had the arrest been without a warrant. Spry’s arrest, however, occurred after a warrant had been secured.

The court has recognized, as has the Supreme Court, that arrests with warrants provide safeguards for putative defendants by allowing “a neutral judicial officer to assess whether the police have probable cause to make an arrest….” Spry asserts that Officers lost there ability to effectuate the arrest when the officer submitted his observations to judicial review and secured a warrant after the melee in Federalsburg ended. He, however, alleges no actual prejudice occurring to him on account of the two-day delay between the occurrence of the offense and the time that he was arrested with a warrant which could implicate due process.

It would be illogical and unreasonable to limit the discretion of the officers in the present case by the adoption of Spry’s stance just because the officers secured an arrest warrant after the conflagration ended. When confronted with other substantial concerns such as when a disturbance to the public peace has occurred, or when a riot or more serious situation is looming, police reasonably focus on quelling the disturbance, rather than formally arresting each perpetrator immediately. In the present case, Officer Jester arrived at the Garden Court Apartments during a volatile and heated situation with “forty to fifty people standing in the middle of the roadway and parking lot, screaming, yelling … [and] carrying on.” To squelch the disturbance, he ordered those present, who did not live at the Garden Court Apartments, to disperse, which included Spry. Instead, Spry refused to leave, acted menacingly and loudly. Although Spry eventually left, it was at the insistence of a colleague and after Officer Jester had repeated his order at least four or five times. Spry’s noncompliance until that point is not negated by his eventual and untimely decision to leave.

Holding:

The court affirm the decision of the Court of Special Appeals and hold that a police officer does not have to arrest an individual immediately after the first disobedience of a lawful order made to prevent a disturbance to the public peace, nor does he have to arrest at the scene in order to initiate prosecution under Section 10-201(c)(3).

Judgment Of The Court Of Special Appeals Affirmed With Costs.