dissenting.
As was true in connection with the original opinion of the court in this case, I cannot agree with our opinion on the petition for rehearing. I dissent.
How soon we forget. The justice writing for the court in Mickelson v. State, 886 P.2d 247 (Wyo.1994), fails to account for the opinion of this court in Roberts v. State, 711 P.2d 1131 (Wyo.1985). The same oversight is found in the opinion of the court on the petition for rehearing. This case also seems to have escaped notice by the parties. Because the philosophical tone of that opinion is equally significant to the holding, I quote at length:
Appellant argues that the trial court’s instructions were contrary to the law and that they led the jury to ignore the impropriety of the bench warrant. He contends that the common law of resisting arrest still applies in Wyoming to permit a person to resist an arrest which is based upon an invalid warrant. We disagree. The crime of resisting arrest is defined by § 6-5-204(a), W.S.1977 (June 1983 Replacement). Before a person can be convicted under this statute, the prosecution must prove beyond a reasonable doubt that the resistance occurred while the peace officer was “engaged in the lawful performance of his official duties.” One of a peace officer’s official duties is found in § 7 — 2—102(a)(ii), W.S.1977, which authorizes an officer to “arrest a person when: * * * [h]e has reasonable grounds for believing that a warrant for the person’s arrest has been issued in this state or in another jurisdiction.” The execution of an invalid warrant is not excepted from a peace officer’s official duty under § 7 — 2—102(a)(ii), supra, as *1025it would be if the legislature had so intended. A peace officer, therefore, is lawfully performing his official duty when he makes an arrest even if it later appears that the arrest warrant is invalid. A person who resists such an arrest can be convicted under our resisting arrest statute. The jury instructions given by the trial court accurately reflected the law, and it was proper for the jury to ignore the alleged invalidity of the arrest warrant. Appellant’s proffered instructions are clearly contrary to the law and were properly refused. Simms v. State, Wyo., 492 P.2d 516, 523 (1972).
Our holding in this case is supported by reason as well as by statute. It would be unfair to give the peace officers of this state the authority to make warranted arrests but deny them the protection of the resisting arrest statute. State v. Wright, 1 N.C.App. 479, 162 S.E.2d 56, 62 (1968). This unfairness would not be balanced by any legitimate gain by the persons arrested. Few, if any of them, have any idea at the time of their arrest that the warrant executed by the arresting officer might be invalid. Their later assertion of the privilege to resist is simply a post-hoe justification. We agree with what the Maryland Court of Special Appeals said in a ease which is on all fours with this one:
“In the case at bar, neither the appellant nor the police officers saw the warrant before the arrest. Clearly, the appellant did not resist the arrest because he believed the warrant was defective. To permit his conviction to turn upon whether in hindsight the warrant is adjudicated defective, a highly complex procedure in itself, when he could not have known it was defective is to permit an uninformed street decision by an accused to take the place of a decision by the appointed and informed adjudicative officers of the law. Such a procedure cannot be sanctioned at the cost of violent injury to police officers fulfilling the command of a warrant.” Rodgers v. State, 32 Md.App. 90, 359 A.2d 122, 126 (1976).
Even if the person arrested is absolutely certain that his arrest is a mistake, he should nevertheless cooperate with the arresting officer and employ remedies available through the judicial system. While these remedies may be little consolation in some overburdened jurisdictions, we think they are viable in Wyoming. See P. Chevigneny, The Right to Resist and Unlawful Arrest, 78 Yale Law Journal 1128, 1133-1136 (1969). Rule 5, W.R.Cr.P., requires that the arrested person be taken before a commissioner without unnecessary delay. The commissioner is required to inform him of “the general circumstances under which he may secure pretrial release.” Rule 8(c), W.R.Cr.P. makes release upon bail mandatory for noncapital offenses unless the judicial officer determines that “such release will not reasonably insure the appearance of the person as required.”
After the person arrested has been admitted to bail, the most onerous aspect of a mistaken arrest is behind him, and he can take up the issue of damages in a civil suit against the complainant. We note that the civil dockets in Wyoming courts are sufficiently current to give the damage remedy vitality.
An additional remedy is made available by the exclusionary rule. Any evidence acquired through the illegal arrest is inadmissible against the defendant at trial. United States ex rel. Kilheffer v. Plowfield, 409 F.Supp. 677, 680-681 (E.D.Pa.1976), citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
As a practical matter, the person arrested has little to gain by resisting arrest.
“Vesting an arrestee with the right to resist quite clearly invites the police to respond with force and frequently the violence would entail the use of deadly weapons, a circumstance that ought never be encouraged.” United States ex rel. Kilheffer v. Plowfield, supra, 409 F.Supp. at 681.
And, there can be no doubt that the police are usually the ones that come out on top in such confrontations. The fact that appellant suffered only temporary disability from Officer Wright’s mace is more a trib*1026ute to Officer Wright’s self-control than it is a reason to permit such physical confrontations to continue undeterred.
Considering the solid arguments against the common law rule, it is not surprising that the trend is away from allowing resistance to illegal arrests. 1 W. LaFave, Search and Seizure § 1.11 at 211 (West 1978). The Model Penal Code provides that the “use of force is not justifiable * * * to resist an arrest which the actor knows is being made by a peace officer, although the arrest in unlawful.” Model Penal Code § 3.04 (Tentative Draft No. 8 1958) quoted in 1 W. LaFave, supra, § 1.11 at 211-212. Similarly, the Uniform Arrest Act, first proposed by the Interstate Commission on Crime in 1941, requires a person who has reasonable grounds to believe that he is being arrested by a peace officer “to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest.” S. Warner, The Uniform Arrest Act, 28 Va.L.Rev. 315, 345 (1941). Many state courts have recently moved away from the common law position although some have not yet adopted a blanket view that all illegal arrests cannot be resisted. See 1 W. LaFave, supra, § 1.11 at 212, n. 8 (1978); and 44 A.L.R.3d 1078, 1087, for a listing of the states that have departed from the common law rule.
This case represents a limited departure from the common law view because we only decide that a citizen cannot resist an arrest by a uniformed police officer who is executing a warrant. In eases where unlawful warrantless arrests or unlawful searches and seizures are resisted, § 7-2-102(a)(ii), W.S.1977, is not available to determine whether the searching or arresting officer is “engaged in the lawful performance of his official duties.”
There may be situations in which police activity is so provocative and resistance so understandable that it can only be concluded that the police were not engaged in the lawful performance of their official duties. In such eases, the resisters cannot be prosecuted under our resisting arrest statute. But this is not one of those cases. Appellant was arrested by a uniformed police officer who tried several times to make a peaceful, low-key arrest. The officer informed appellant of the existence of the warrant and of the violation upon which the warrant was based. Appellant’s resistance was fully punishable under the statute.
It is worth noting that there are no constitutional ramifications to our interpretation of the resisting arrest statute. While the United States Supreme Court held in Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), that evidence seized incident to an illegal arrest must be suppressed, the Court has never held that the arrestee has a constitutional right to resist such an arrest. 1 W. LaFave, supra, § 1.11 at 212-213. The federal courts that have decided the issue have held that:
“[A]t least absent unusual circumstances there exists no such federal constitutional right.” United States, ex rel. Kilheffer v. Plowfield, supra, 409 F.Supp. at 680 (citing United States ex rel. Horelick v. Criminal Court of City of New York, 366 F.Supp. 1140 (S.D.N.Y.1973) rev’d on other grounds, 507 F.2d 37 (2nd Cir.1974)).
The many state courts which have eliminated the right to resist an unlawful arrest have, of course, assumed that the common law rule has no constitutional dimensions.
Roberts, 711 P.2d at 1134-1136 (emphasis added, footnotes omitted).
In Simmons v. State, 712 P.2d 887, 889 (Wyo.1986), alluded to in Roberts, we said:
Appellant contended at trial, and contends now on appeal, that the warrantless arrest was illegal because it was unsupported by probable cause that a breach of peace had occurred; that since the arrest was illegal, Officers Dixon and Sparks could not have been engaged in the lawful performance of their official duties at the time of the assault; and, therefore, he cannot be guilty of the offense charged. It is an argument we cannot accept, because we disagree with its initial factual premise. After reviewing the evidence “in a light most favorable to the State,” we believe *1027that the trial court correctly held that Officer Dixon made a lawful arrest based on probable cause that appellant was violating the Rawlins breach-of-peace ordinance. The assaults, therefore, occurred while Officers Dixon and Sparks were “engaged in the lawful performance of [their] official duties.”
Section 7-2-103(a), W.S.1977, 1985 Cum.Supp., sets the requirements for a lawful warrantless arrest:
“(a) A peace officer may arrest a person without a warrant and detain him until a legal warrant can be obtained when:
“(i) Any criminal offense is being committed in his presence by the person to be arrested * * ⅜.”
In Rodarte v. City of Riverton, Wyo., 552 P.2d 1245, 1252 (1976), we interpreted this subsection of the statute to allow a warrantless arrest when the officer has “reasonable grounds to believe that an offense is being committed in his presence by the person to be arrested.” We used the term “reasonable grounds” interchangeably with “probable cause.” Rodarte, supra at 1253, citing Williams v. United States, 323 F.2d 90, 93 (10th Cir.1963). Probable cause exists when at the moment the arrest is made the facts and circumstances within the officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a prudent man in believing that the accused has committed or is committing an offense. Rodarte, supra, 552 P.2d at 1253, citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). (Footnotes omitted.)
In Mickelson’s instance, the officers had probable cause to believe that he was engaged in the misdemeanor offense of knowingly obstructing, impeding or interfering with a police officer engaged in the lawful performance of his official duties. The officers believed that they were charged with examining the premises which Mickelson claims to have been defending to determine compliance with the state liquor laws. Wyo. Stat. § 12-2-304 (1986) provides:
(a) The commission, through its employees or agents, may enter and inspect at any time every place of business wherein malt or alcoholic beverages are being sold, stored or kept by any licensee or permit-tee.
(b) The commission, through its employees or agents, may examine the records, books of account and stock of malt and alcoholic beverages of retailers, wholesalers and licensees.
(e) If any licensee refuses to permit the entry of an agent of the 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 original opinion quoted subsection (c) of the statute, but ignored the language bolded above. I still hold the view that the court was mistaken in relying upon some requirement that the officers needed reasonable grounds to believe evidence of a violation of the law was within the place to be entered. The statute authorizes “[e]ntry for purposes of inspection * * * only during open business hours unless it is in the presence of the licensee or his duly authorized representative.” This aspect of the statute was satisfied, and we still have not established that police officers are not agents of the liquor commission for this purpose. If that is, by implication, an aspect of our original ruling, it was not known by these officers until after the ease was decided.
It follows ineluctably for me that the officers, at the very least, believed they were engaged in the lawful performance of their duties when Mickelson prevented their entry into the Fireside Bar and Lounge. That occurred in their presence, and they were authorized by statute to arrest Mickelson for that offense. Mickelson can and should be lawfully convicted of resisting arrest for en*1028gaging in a brawl with the officers when they advised him they were arresting him. His conviction should be affirmed.