E-Newsletter Edition: April 16, 2008
Response Provided By: Brian S. Batterton
Always note that state law may be more restrictive on police power than the U.S. Constitution.
QUESTION:
Does a private owner of land, that is open to the public (like a restaurant parking lot) have the right to order an officer off of the premises during the course of the officer conducting a traffic stop? The driver of the vehicle being stopped chose to pull into the lot off of a two lane road with no shoulder. The back-up officer kept ordering the owner to get away from the area of the stop, and he would speak to him as soon as the stop was completed. The owner became irate, entered the area of the stop and was arrested for obstruction.
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ANSWER:
Generally, a private owner of land that is open to the public cannot forbid an officer from being on the land when the officer is in the performance of his official duties.
The rationale for the answer above is that officers usually have a “privilege” to do certain things that private citizens may not be able to do in the same circumstances. For example, in Georgia, state law, specifically O.C.G.A. §16-3-20,states that it is a defense to a prosecution that a person is a law enforcement officer in the lawful discharge of his or her duties. Therefore, if a person tried to accuse a police officer, in the circumstances enumerated in this legal question, of Criminal Trespass, as long as the officer was fulfilling his duties on the premises, his conduct would be justified.
In Oklahoma, when considering land open to the public for business purposes, it appears that state statute, specifically 21 Okl. St. § 1835.1, allows business owners to forbid persons from coming onto or remaining on the premises when the person has been convicted of certain crimes. There is no mention of police officers being subjected to any prohibition of entry onto the business property. However, 21 Okl. St. § 1835.2, which prohibits entry on private property used for farming, ranching or forestry, provides an exception to law enforcement officers who are in the performance of their duties.
Thus, business owners do not appear to be able to prohibit a police officer who is engaged in the performance of his duties from entering or remaining on the property of a business. It is important to note that individual states may have different rules, although it is hard to imagine a prohibition of officer from entering a business property that is open to the public while the officer is in the lawful performance of his duties.
As for whether the conduct described in the above question constitutes the crime of Obstruction under Oklahoma law, there are not enough facts present to render an opinion. However, the Court of Appeals of Oklahoma held, in Trent v. State, 777 P.2d 401 (1989), held that there was no requirement that a defendant use physical force against an officer before he may be charged with violating Okla. Stat. tit. 21, § 540 (Obstruction). In this case, the defendant argued with a Trooper who was attempting to arrest another person for DUI. The court found that the defendant, by remaining on the scene and arguing with the Trooper, prevented him from removing the vehicle from roadway and delayed his attempt to obtain an alcohol test for the driver of the vehicle. Whether the conduct described in the question present amounted to a violation of the Obstruction statute is unknown based on the stated facts.
As always, different states may have different statutes and procedures.
