(589 P.2d 1373)
No. 77-1015Colorado Court of Appeals.
Decided September 21, 1978. Rehearing denied November 2, 1978. Certiorari granted January 29, 1979.
Asserting that his arrest was invalid because arresting officer effected it outside the officer’s territorial jurisdiction, defendant challenged implied consent license revocation that was founded upon that arrest.
Reversed
1. CRIMINAL LAW — Beyond Arrest Officer’s Jurisdiction — Fresh Pursuit Statute — Continuous Surveillance — Not Required — “Pursuit” — Required.
For the arrest of a suspect beyond the territorial limits of the arresting officer’s jurisdiction to be valid by operation of the “fresh pursuit” statute, there need not be continuous surveillance of the fleeing suspect or the uninterrupted knowledge of his whereabouts by the officer; however, there must be a “pursuit,” with that word having its ordinary meaning of “chasing or following to overtake.”
2. Circumstances — Extra-Territorial Arrest — Not Effected — “Fresh Pursuit” Statute — Invalid. Following hit-and-run accident, city police officer neither had information concerning suspects whereabouts, nor was he informed that the suspect was returning to his home, rather he knew only that hit-and-run car had driven west, and that the suspect lived a few blocks to the east, and from that the officer guessed that he would return home and so proceeded there, beyond the territorial limits of his jurisdiction, where he arrested the suspect; held, under these circumstances, the arrest was not effected under the “fresh pursuit” statute and thus was invalid.
Appeal from the District Court of the City and County of Denver, Honorable Henry E. Santo, Judge.
Brenman, Sobol, Baum, Zerobnick, Epstein, Zuckerman Lutz, P.C., Daniel D. Platter, Leo T. Zuckerman, for plaintiff-appellant.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Anthony M. Marquez, Assistant Attorney General, for defendant-appellee.
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Division III.
Opinion by JUDGE VAN CISE.
Plaintiff’s driver’s license was revoked by defendant Department of Revenue following a hearing held pursuant to the implied consent law, § 42-4-1202(3)(a), C.R.S. 1973. Plaintiff sought judicial review in accordance with §§ 24-4-106 and 42-2-127, C.R.S. 1973, and the district court affirmed the revocation. On appeal plaintiff contends, as he did both at the revocation hearing and before the district court, that his arrest was not valid because the arresting officer made the arrest outside of the officer’s jurisdictional territory and that consequently there was no basis to request plaintiff to take a chemical test pursuant to the implied consent law. We agree, and reverse.
The facts are undisputed. On the evening of July 5, 1976, Lakewood police officer Graham reported to the scene of a reported hit-and-run accident at 1211 South Sheridan Boulevard, Lakewood, Colorado. He obtained from a witness a license plate number and description of the driver and of the vehicle which had caused the accident. He learned that the car had been driven away west-bound on Arizona Avenue.
Upon running a check of the license number, the officer learned the vehicle was registered to plaintiff, whose address was 1225 South Wolff Street, four blocks east of the scene of the accident and located in the City of Denver. Officer Graham drove toward that address. When on West Arizona Avenue and turning south onto South Wolff Street, he observed plaintiff turning into his driveway in a car fitting the description with which he had been provided. Until that time, which was 10 or 15 minutes after the officer had arrived on the scene of the accident, he had not seen either the plaintiff or his vehicle and had received no information as to where the plaintiff or his vehicle were except that the car had headed west. The arrest was made by Officer Graham at plaintiff’s residence in Denver, and the sequence of events leading to his license revocation for refusal to take a chemical test pursuant to the implied consent law followed his arrest.
Ordinarily, in the absence of a statute providing otherwise, a police officer acting without a warrant may arrest in his official capacity only within the limits of the city or town of which he is an officer. However, in Colorado, by statute, § 16-3-106, C.R.S. 1973,
“When any peace officer is in fresh pursuit of any alleged offender, . . . [and] the officer has reasonable grounds to believe that the alleged offender has committed a criminal offense, and the alleged offender crosses a boundary line marking the territorial limit of his authority, such peace
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officer may pursue him beyond such boundary lines and make the arrest . . . .”
In § 16-3-104(1), C.R.S. 1973, “fresh pursuit” is defined as:
“The pursuit without unnecessary delay of a person who has committed a crime, or who is reasonably believed to have committed a crime.”
Here, the officer had reasonable grounds to believe that the alleged offender had committed a criminal offense, and he proceeded without unnecessary delay. However, the arrest in this case can be sustained only if it followed a “fresh pursuit.”
[1] We do not rule that the continuous surveillance of a fleeing suspect or the uninterrupted knowledge of his whereabouts are requisite to a finding of “fresh pursuit.” People v. Clark, 46 Ill. App.3d 240, 360 N.E.2d 1160. However, there must be a pursuit. The word “pursuit” is ordinarily used in the sense of “chasing or following to overtake.”State v. Dreiling, 136 Kan. 78, 12 P.2d 735; Webster’s Third New International Dictionary. Usually, where the extraterritorial arrest was held to be valid under the fresh pursuit doctrine, the officers were either following the suspect who was in their view, People v. Roddy, 188 Colo. 55, 532 P.2d 958, were following a “trail” left by the suspect, United States v. Bishop, 530 F.2d 1156 (5th Cir.) (electronic tracking), United States v. Getz, 381 F. Supp. 43 (E.D. Penn.) (trail of sightings), or were aware that the suspect had to be following a particular route, People v. Clark, supra.
[2] This case is different. The Lakewood police officer neither had information concerning the plaintiff’s whereabouts, nor was he informed that plaintiff was returning to his home. The only information the officer had was that the hit-and-run car had been driven west from the accident scene, and the plaintiff lived a few blocks to the east. Based on this information alone, the officer guessed that defendant would return home.
The facts of this case do not establish any “pursuit” within the meaning of the statute. To amount to fresh pursuit, the officer must be pursuing something more than a hunch.
Under § 42-4-1202(3)(a), C.R.S. 1973, the consent is implied only if the driver was arrested. The arrest having been unlawful, because made outside Lakewood without “fresh pursuit,”there was no basis for the implied consent; therefore, the revocation order cannot stand. Irwin v. State, 10 Wash. App. 369, 517 P.2d 619.
Judgment reversed, and cause remanded to the trial court with directions to enter judgment directing the defendant to vacate the suspension of plaintiff’s driver’s license.
JUDGE PIERCE concurs.
JUDGE RULAND dissents.
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JUDGE RULAND dissenting:
I respectfully dissent.
I concur with the majority’s view that the continuous surveillance of a fleeing suspect or the uninterrupted knowledge of his whereabouts are not prerequisites to a finding of “fresh pursuit.” However, I cannot agree that the facts of this case fail to establish any pursuit within the meaning of the statute.
The “fresh pursuit” concept has been incorporated into various state statutes. And, to sustain the validity of an arrest based upon these statutes, the test is not whether the officer followed a hunch in locating a suspect whose precise whereabouts are unknown. Rather, insofar as relevant here, the sole test is whether the officer initiated his pursuit without unreasonable delay. Thus, for example, in People v. Clark, 46 Ill. App.3d 240, 360 N.E.2d 1160 (1977), Cairo, Illinois, police officers were seeking to arrest armed robbers shortly after the crime occurred. They had a description of the getaway car and were aware that the suspects could not have crossed the Illinois border into Kentucky because that highway was sealed. Their problem was to elect between two highways southbound from Cairo. The officers elected to pursue on one of the highways and arrested the suspects seven miles into the State of Missouri within seventeen minutes after the crime was committed. Following an extensive analysis of the applicable case law, the court sustained the arrest on the basis of fresh pursuit because the pursuit was continuous, uninterrupted, and without unreasonable delay.
By way of further illustration, in State v. Tillman, 208 Kan. 954, 494 P.2d 1178 (1972), Kansas City, Kansas, police officers were also seeking to arrest armed robbers shortly after the crime occurred and they had a description of the getaway car. The officers went to a location in Kansas City, Missouri, where the lessee of the getaway car resided. Their “hunch” was obviously that the suspects would return to this address. While staking out that address, the officers were advised that the suspects had been spotted at the rental agency in Kansas City, Missouri where the vehicle was leased. The officers then traveled to that address and made the arrest. This arrest was also sustained on the basis of “fresh pursuit.”
In light of the foregoing, I would hold that the arrest in this case was valid based upon the “fresh pursuit” statute and that, therefore, the revocation of plaintiff’s license must be affirmed.
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