In 2011, New Albany Police Department received a report that shots had been fired in the vicinity of Madison Street, Garfield Street, or Hayes Street. Officer Ben Kent responded and while on the way, the report was updated to state that the suspects were driving a tan Cutlass. When Officer Kent heard this new information, he headed to Cleveland Street, because he knew that there was a tan Cutlass that stayed on Cleveland Street at the duplex apartments.
When Kent arrived at the duplex, he saw the tan Cutlass and an SUV parked in front, and he noticed several people in the yard. Kent got out of his patrol car and drew his weapon. He focused his attention on S.S.’s sixteen-year-old brother, D.S., but was trying to keep S.S. in his peripheral vision.
Kent began giving them orders to let him see their hands. Kent testified that he continued to approach the two of them, continued to order them to show their hands, and then he told them to put their hands on the car. When Kent ordered them to put their hands on the car, S.S. stated “I’m not putting my hands on the car.”
At that point, Kent testified that he holstered his pistol and put S.S. over the hood of the car so that he could pat S.S. down to check whether or not he had weapons. Other members of the New Albany Police Department arrived around that time. S.S. continued to struggle with Kent.
He’s kicking. He’s yelling. He’s punching. He’s doing whatever he can to try to keep the officers from taking control. Officer Brent Baker eventually tased S.S. and he stopped struggling. SS was adjudicated as a delinquent child for resisting arrest. SS argues on appeal the arrest was unlawful. MSC affirms.
The juvenile detention report states that S.S. was charged with disorderly conduct, along with resisting arrest. We first note that, because Kent personally observed S.S. committing what he perceived to be a breach of the peace—the underlying offense for which S.S. was arrested—the requirement of probable cause was not implicated. It is well settled that an officer may make an arrest for a misdemeanor committed in his presence without a warrant.
The disorderly conduct statute states, in pertinent part: Whoever, with intent to provoke a breach of the peace, or under such circumstances as may lead to a breach of the peace, or which may cause or occasion a breach of the peace, fails or refuses to promptly comply with or obey a request, command, or order of a law enforcement officer, having the authority to then and there arrest any person for a violation of the law, to: (i) Act or do or refrain from acting or doing as ordered, requested or commanded by said officer to avoid any breach of the peace at or near the place of issuance of such order, request or command, shall be guilty of disorderly conduct, which is made a misdemeanor.
We find that Kent’s actions in arresting S.S. for disorderly conduct were lawful under the facts of this case. Kent—in response to a report of shots fired and to what he classified as a serious situation —testified that he drew his weapon and approached S.S. and his older brother D.S. and began ordering them to show their hands.
We find that S.S.’s refusal to “promptly comply with or obey a request, command, or order of Kent—“a law enforcement officer, having the authority to . . . arrest any person for a violation of the law”—constituted a circumstance “which may cause or occasion a breach of the peace,” as two of the other officers at the scene described the situation as “very hostile” and as “mass chaos.”
So Kent, as a New Albany police officer, lawfully arrested S.S. for disorderly conduct when S.S. failed to obey Kent’s commands to show his hands or to place his hands on the car under circumstances that could lead to a breach of the peace, which is all that is required under the disorderly conduct statute.
Since the arrest was lawful, the resisting arrest charge was also warranted based on SS’s actions as presented in court.