Mickelson v. State

THOMAS, Justice,

dissenting, with whom TAYLOR, Justice, joins.

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.

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 endeav- or 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 Mickel-son for refusing them entry to a bar. This is a very interesting theory.

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.

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.

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.

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 prem*252ises 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.

I would affirm the conviction of Mickelson for interference with a peace officer.