dissenting:
Confess I must to certain gnawing doubts and anxieties in this area of obstructing police officers in the execution of their required duties.
I am not at all convinced that the statutory right of silence extends to a refusal to answer routine and mundane questions involved in the purely administrative procedure of police station “booking.” It occurs to me that in this context the Criminal Code and its protection of a right to remain silent goes for the jugular — not a mere capillary. Its obvious intent is to prevent self-incriminating utterances regarding criminal offense, and not-to thwart the performance of public officers in the legitimate, routine functions required by the duties that society has demanded of them.
Perhaps my uneasiness is somewhat manifested in the logical extension of the majority holding — in the pragmatic possibilities of what could occur if the practice of silence at the time of booking should become widespread. I mean not to herald the coming of the Apocalypse, but I visualize real and concrete problems with the efficient administration of justice if we become faced with a general practice or rule— rather than an exception — of individuals under arrest refusing to answer valid and proper questions of law enforcement officials.
Need I paint a word picture of the chaos that could follow? Even if only a substantial percentage of the myriad annual arrests that occur remained silent and refused to answer booking questions, the requirements of efficient and expeditious justice imposed upon all those involved in its administration could be most seriously impaired. Law enforcement agencies and governmental entities are already hard pressed for funds, personnel, training, and equipment. The added burden of investigation and inquiry to identify and procure basic, otherwise innocuous and nonincriminating information about arrestees could well place upon society an absurd burden which could not only impede, but might well inflict a grievous wound to the process of justice.
The majority grasps tightly to Raby for its survival. But Raby merely lifted certain semantical definitions from Landry, and those definitions of “resisting” and “obstructing” so lifted were taken in a purely clinical and surgical manner — far from the context of the case at bench, or apart even from those confronted in Raby itself.
Landry was a three-judge Federal district court class action in which it was held that the obstructing statute “is designed to deter a person from resisting or interfering with the acts of law enforcement officials, simply on the basis of the person’s own conclusion as to the impropriety of the act.” (Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, 959.) The court then proceeded to merely quote the definitions of “resisting” and “obstructing” out of Webster’s New International Dictionary (3d ed. 1964) and then read into those sterile recitals that “they imply some physical act or exertion.”
The Landry court went too far to my view — it overreached and made a blanket assertion that strains logical imputation or ascription. (Landry was reversed by the U. S. Supreme Court on other grounds sub nom. Landry v. Boyle 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758.)
Actually — as our sister court opined in Gibbs — the factual situation here was clearly “not contemplated” by the language in Raby as lifted from Landry. Just as Gibbs distinguished its facts from those in Raby, I too view the situation posited here as distinguishable. Although the run-of-the-mill, garden-variety resisting or obstructing scenario would involve a physical element, I do not see how that element can be required in the situation of silence and refusal to answer legitimate booking inquiries that do not in any way call for comment on elements of criminal acts or on the issue of guilt or innocence.
A mere glance at Annot., 44 A.L.R. 3d 1018 (1972) (“What Constitutes Obstructing or Resisting an Officer, in the Absence of Actual Force”) demonstrates that courts across the land have gone in all directions on this question — depending on two factors: (1) the wording of the particular statute (“obstruct,” “resist,” “hamper,” “impede,” “hinder,” etc.), and (2) the specific facts of the case (a person denying that a subject was present in the house, advising others not to obey police, refusal of a trespasser to give his name so summons and complaint could be prepared, etc.).
The case before us presents a challenge of approach more than anything else. Can mere silence — standing mute — constitute obstruction of an officer in the performance of his duty? I conclude it can. A person’s refusal to answer harmless and inoffensive questions asked by proper authorities — requisite to the proper, efficient, and expeditious function of police powers — can surely “resist” and “obstruct” as though physical acts in the ordinary sense were employed. The defendant’s refusal here to answer interfered with and obstructed the officer in the performance of his duties as completely and effectively as if he physically touched or otherwise physically interfered with the officer.
Silence and refusal to answer is merely a negative, an absence or void of the physical act of answering. One is omission, the other commission. Thesis, antithesis. Diametric opposites. But they may accomplish the exact, identical result. And a police officer has been obstructed either way the loaf is sliced!
In short — silence can be equated with physical action or conduct when its function and purpose is to impede, hinder, resist or otherwise obstruct a police officer in the performance of his duty, including the pedestrian necessities of “booking” procedures.
I would affirm.