The requirement of a 'lawful' command/request by a police officer for Resisting & Obstructing.

In People v Nyilas, Unpub Per Curiam Opinion, (#311721, 8/13/2013) the Court of Appeals affirmed the defendant’s conviction for interfering with electronic communications, but reversed his conviction for resisting or obstructing a police officer. 

In Nyilas to the extent that police officers requested defendant to answer the phone or come to the door and talk with them, such requests were not “lawful” because defendant had no obligation to do so. “[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Florida v Jardines, __ US __; 133 S Ct 1409, 1415; 185 L Ed 2d 495 (2013) quoting Silverman v United States, 365 US 505, 511, 81 S Ct 679 (1961). In fact, The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home—a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their . . . houses . . . shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v United States, 365 US 505, 511; 81 S Ct 679, 683; 5 L Ed 2d 734. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. [Payton v New York, 445 US 573, 589-590; 100 S Ct 1371; 63 L Ed 2d 639 (1980).] While an police officer, like any other private citizen, may knock at the door without a warrant and request entry, Jardines, 133 S Ct 1409 at 1415-1416, “[w]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do.” Kentucky v King, ___ US ___; 131 S Ct 1849, 1862; 179 L Ed 2d 865 (2011). “And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.” Id. (emphasis added). 

In People v Moreno, 491 Mich 38 (2012), the defendant informed two police officers that he would not allow them to enter his residence without a warrant, and then he attempted to close the front door. Id. at 42. One of the police officers put his shoulder against the door to prevent the defendant from closing the door. Id. at 42-43. The defendant struggled with the police officers, and he was eventually charged with assaulting, resisting, or obstructing a police officer under MCL 750.81d(1). Id. at 43. The issue before the Court was whether MCL 750.81d abrogated “the common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas.” Id. at 41. After an analysis of the statutory language, the Court concluded that MCL 750.81d did not abrogate “the common law right to resist unlawful arrests or other unlawful invasions of private rights.” Id. at 58. Thus, “the prosecution must establish that the officers’ actions were lawful.” Id. at 52.2

The Court of Appeals thereby concluded that the police, in requesting defendant Nyilas to come to the door (before the officers obtained valid arrest and search warrants) were not making a lawful request.  The trial court thereby abused its discretion in failing to grant defendant’s motion for directed verdict. Defendant was under no legal obligation to leave the home or allow the officers to enter the home absent valid warrants to do so.