Could an Arkansas officer outside his jurisdiction pursue and ticket a second motorist for a misdemeanor observed there?

Plain-English summary

Representative Dwight Tosh described an officer who pursued a speeding driver from his home jurisdiction into another jurisdiction. While the officer completed that stop, a second driver passed without changing lanes. The officer then pursued and ticketed the second driver outside his own jurisdiction. Attorney General Leslie Rutledge answered that, on the stated facts, the officer could not lawfully pursue, detain, or ticket the second motorist for that misdemeanor.

Fresh pursuit can authorize an officer to continue across a jurisdictional line after witnessing a misdemeanor and beginning the pursuit within the officer's own jurisdiction. The second motorist's failure to change lanes occurred entirely outside it. The question also supplied no warrant, written cross-jurisdictional policy and request from the neighboring jurisdiction, or other authority for the officer's action. Rutledge stressed that different facts could change the result. The opinion did not decide whether the earlier speeding stop or ticket was valid.

Currency note

This opinion was issued in 2017. Check current law and the facts of an actual stop before relying on its conclusion.

Common questions

Q: Did the AG say the second motorist's stop and ticket were lawful?
A: No. She concluded the officer lacked authority to pursue, detain, or ticket that motorist on the facts presented because the observed failure to change lanes was a misdemeanor committed outside his jurisdiction.

Q: Did the opinion decide whether the first speeding ticket was valid?
A: No. The first pursuit and ticket were part of the requester's hypothetical. Rutledge answered only the questions concerning the second motorist.

Q: When can fresh pursuit support an out-of-jurisdiction misdemeanor arrest?
A: As the opinion reads the cases, the officer must observe the misdemeanor and begin pursuing the suspect within the officer's own jurisdiction before continuing across the boundary. Merely observing a misdemeanor while already outside that jurisdiction was insufficient here.

Q: Could a different arrangement authorize action in the neighboring jurisdiction?
A: Possibly. Rutledge mentioned a written policy authorizing the officer to operate there together with a request for assistance from officials in that jurisdiction. She also discussed suspected felonies and assistance to local officers as examples of facts that might change the analysis.

Background and statutory framework

The opinion describes Arkansas law as granting limited extra-jurisdictional arrest authority, including fresh pursuit, arrest warrants, a written policy plus a request from the other jurisdiction, and certain drug investigations requested by a neighboring sheriff. Rutledge found none of those bases for the second motorist in the hypothetical. She cautioned that pursuit and arrest questions depend heavily on the precise facts.

Citations

• Ark. Code Ann. §§ 16-81-301, 16-81-106

Source

• Arkansas Attorney General opinions search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked landing page is authoritative.

Opinion No. 2017-027
June 19, 2017

The Honorable Dwight Tosh
State Representative
[address redacted]
Jonesboro, AR

Dear Representative Tosh:

This is in response to your request for an opinion regarding the authority of law-enforcement officers to issue citations outside of their jurisdictions. You set out the following hypothetical scenario in your correspondence:

A police officer in my district pursued a speeding motorist within his jurisdiction, but the actual stop and citation took place outside of the officer's jurisdiction. The officer was completing the citation when a vehicle passed without changing lanes. The officer completed the first citation, then pursued and cited the second motorist for not changing lanes. The pursuit, stop, and citation of the second motorist took place outside of the officer's jurisdiction.

In light of this scenario, you ask the following questions, which I have slightly paraphrased:

1. Would it be legal for the officer to pursue and detain the second motorist for failing to change lanes, when the officer was in the process of issuing a ticket for a speeding violation that began in the officer's jurisdiction but ended outside of that jurisdiction?

2. Would it be legal for the officer to issue a ticket to the second motorist for failing to change lanes?

Response

In my opinion, the answer to your first question is "no." The offense of failing to change lanes is a misdemeanor in Arkansas. While law-enforcement officers have limited extra-jurisdictional authority, Arkansas statutes generally do not authorize an officer to pursue and detain an individual in response to a misdemeanor that occurred entirely outside the officer's jurisdiction. Therefore, based on the facts provided, I do not believe the officer could lawfully pursue or detain the motorist for failing to change lanes. But this might not always be the result, given that questions surrounding pursuit and arrest are highly fact-dependent.

I believe the answer to your second question, regarding the legality of a ticket for the failure to change lanes, is also "no." To be sure, your hypothetical describes conduct that would give rise to probable cause to suspect a failure-to-change-lanes violation. But because the offense is a misdemeanor, the officer in question would be constrained from pursuing or detaining the second driver for criminal conduct that occurred outside the officer's jurisdiction. Thus, it logically follows that he could not ticket (or arrest) the driver.

Discussion

Question 1. Would it be legal for the officer to pursue and detain the second motorist for failing to change lanes, when the officer was in the process of issuing a ticket for a speeding violation that began in the officer's jurisdiction but ended outside of that jurisdiction?

The crux of this question is that the failure to change lanes took place outside the jurisdiction of the officer who witnessed the offense. The general rule is that a law-enforcement officer "outside the territorial limits of the jurisdiction under which he holds office is without official power to apprehend an offender, unless he is authorized to do so by state statute." Two Arkansas statutes are instructive.

Under Ark. Code Ann. § 16-81-301, an officer "in fresh pursuit of a person who is reasonably believed to have committed a felony in this state or has committed or attempted to commit any criminal offense in this state in the presence of the officer, ... shall have the authority to arrest and hold in custody such person anywhere in this state." Furthermore, Ark. Code Ann. § 16-81-106 permits an officer outside his jurisdiction, but acting with the permission of officials from the local jurisdiction, to "arrest without warrant a person who commits an offense within the officer's presence or view if the offense is a felony or a misdemeanor."

These statutes and the cases interpreting them outline the circumstances under which a law-enforcement officer can initiate an extra-jurisdictional arrest. As those cases make clear, an officer in "fresh pursuit" of a suspect is authorized to continue that pursuit into another jurisdiction. But an officer already outside his jurisdiction (and not engaged in fresh pursuit of the specific suspect) is limited in his ability to pursue and detain.

Based largely on the statutes cited above, the Arkansas Supreme Court has summarized the "four instances where officers may arrest outside their territorial jurisdiction" as follows:

(1) when the officer is in fresh pursuit ... (2) when the officer has a warrant for arrest ... (3) when a local law enforcement agency has a written policy regulating officers acting outside its territorial jurisdiction and when said officer is requested to come into the foreign jurisdiction, ... and (4) when a sheriff in a contiguous county requests an officer to come into his county to investigate and make arrests for violations of drug laws ....

In three of the four instances, the officer's extra-jurisdictional authority originates with a written document or some other agreement that pre-dates the arrest. That is, the officer may be authorized to arrest a suspect outside his jurisdiction by a warrant, by a policy in writing "regulating ... law enforcement activities outside [the officer's] jurisdiction," or by permission from a nearby sheriff to "investigate and arrest any person violating any provision" of the Uniform Controlled Substances Act. Because there is no suggestion in your hypothetical that there was an outstanding warrant for the second motorist, and no indication that an agreement was in place between the officer's jurisdiction and the neighboring jurisdiction, it appears that the motorist could not be pursued, detained, or ticketed pursuant to a pre-existing document or policy.

The issue, then, is whether the officer was in "fresh pursuit" of the second motorist. Essentially, fresh pursuit is chase of a suspect "without unreasonable delay." Arkansas statute extends the definition of fresh pursuit to a suspect who "has committed or attempted to commit any criminal offense in this state in the presence of the arresting law enforcement officer," enabling the officer to make an arrest "anywhere in this state." One might argue that so long as the officer witnessed the suspect "commit[] or attempt[] to commit any criminal offense," the officer had authority to pursue and arrest that suspect outside of his jurisdiction. But case law clearly confines fresh pursuit for purposes of extra-jurisdictional arrest to situations in which the misdemeanor offense occurs in the officer's jurisdiction before prompting a chase (and eventually, an arrest) that involves another jurisdiction.

In Smith v. City of Little Rock, the Supreme Court framed the question as whether an officer "was within his jurisdiction when he first observed the appellant, and whether that justified [his] arrest" of the appellant for driving while intoxicated. It was undisputed that the appellant was arrested "one block off Fair Park Boulevard, on a street not adjacent to the campus" where the officer was assigned. The appellant argued that the officer lacked the authority to arrest given that the detention occurred off campus. The Court noted that at common law, the fresh-pursuit doctrine "enabled an officer to pursue a felon into another jurisdiction." And it concluded that Arkansas statute expanded the definition of fresh pursuit in a manner "broad enough to embrace misdemeanors," such as driving while intoxicated, that are committed in an officer's presence. The Court found that the officer had this "firsthand information" because he witnessed the appellant drive erratically on campus. But importantly, the Court also found that "the pursuit began within the patrolman's jurisdiction."

Thus, the appellant's arrest was valid because the misdemeanor was committed in the officer's presence, and the officer "began pursuit within his jurisdiction" before driving four blocks to make the arrest. This dual requirement, a misdemeanor offense committed in the officer's presence, and pursuit of the misdemeanant that begins in the officer's jurisdiction, is borne out in multiple cases involving vehicular crimes. For example, a Marshall police officer who "noticed appellant's erratic driving while both the officer and the appellant were within the city limits of Marshall" was authorized to arrest the suspect outside the city. The Court of Appeals upheld the trial judge's ruling that the officer was in "fresh pursuit" when he made the arrest. And in Debriyn v. State, the Court of Appeals affirmed a misdemeanor conviction that resulted from a Fayetteville police officer pursuing a motorist into the city of Farmington. The officer "was in the Fayetteville city limits when he first observed [the suspect] committing a traffic violation," and so was in fresh pursuit when he made the arrest outside his jurisdiction.

Based on your hypothetical scenario, it does not appear that the fresh-pursuit doctrine applies to the officer with respect to the motorist who failed to change lanes. This is true notwithstanding the fact that one of the elements necessary for fresh pursuit undoubtedly exists. That is, the officer observed the motorist fail to change lanes. But without aggravating factors, failure to change lanes is a misdemeanor. It is not enough for the offense to have occurred in the officer's presence. To trigger fresh pursuit, it must also have occurred in the officer's jurisdiction. Because it did not, and because the officer does not appear to have had any other authority to pursue, detain, ticket, or make an arrest outside his jurisdiction, the officer "must be treated as a private citizen." A citizen is authorized to "make an arrest where he has reasonable grounds for believing that the person ... committed a felony," but there is "no such provision in case of a misdemeanor." Given that failure to change lanes is a misdemeanor offense, I do not believe the officer could lawfully pursue or detain the second motorist outside his jurisdiction.

It should be emphasized, however, that pursuit of the second motorist might become proper with any number of factual variations. First, the officer would certainly be authorized to pursue a suspected felon outside his jurisdiction. Failure to change lanes in and of itself is not a felony, but failing to change lanes combined with other behavior might cause the officer to suspect a felony had been committed. Likewise, the officer could pursue the second motorist, even for a misdemeanor, if his home jurisdiction had a policy authorizing him to operate within the neighboring jurisdiction, and officials in the neighboring jurisdiction requested his assistance. Third, if law-enforcement officials from the neighboring jurisdiction were present (to assist with detention of the first motorist, for example), then the officer might have authority to join them in pursuing the second motorist. This is not an exhaustive list of circumstances leading to a valid pursuit outside an officer's jurisdiction. But I mention these possibilities to underscore the degree to which changes to the facts may change the outcome.

Question 2. Would it be legal for the officer to issue a ticket to the second motorist for failing to change lanes?

For the reasons discussed above, I believe the answer to this question is also "no." The fresh-pursuit doctrine does not authorize the officer to give chase to the second motorist for the misdemeanor offense of failing to change lanes. Nor does the hypothetical scenario identify other sources of authority for an extra-jurisdictional pursuit, such as a request to the officer from officials in neighboring jurisdictions. Therefore, the officer would have only the authority of a private citizen, who cannot pursue, detain, ticket (or arrest) a misdemeanant under prevailing Arkansas law.

Sincerely,

Leslie Rutledge
Attorney General