People v. Hamilton

666 P.2d 152, 1983 Colo. LEXIS 586

Opinions

KIRSHBAUM, Justice.

The People have filed this interlocutory appeal pursuant to C.A.R. 4.1 seeking reversal of the trial court’s order suppressing items seized incident to defendant’s arrest. The order was based on the trial court’s conclusion that in executing an arrest warrant Golden Police Department officers had no authority to arrest defendant in the City and County of Denver. While we agree that the officers had no such authority, we reverse the suppression order under the circumstances of this case.

The pertinent facts are undisputed. During the early evening of July 19,1982, Golden Police Department officials were informed by a Jefferson County resident that the defendant had sexually assaulted her earlier that day. A warrant for defendant’s arrest was obtained on July 20.¹

At 9:00 a.m. on July 28, 1982, an informant telephoned Golden police detective Lamb and reported that defendant would visit the First Interstate Bank in downtown Denver sometime that morning. Lamb and Lt. Foulke, another Golden police officer, immediately went to the bank and awaited defendant’s arrival. At 10:49 a.m. defendant entered the bank, at which time the two officers arrested him and seized certain items of personal property incident thereto. Lamb and Foulke then contacted Denver police officers, and a Denver police officer subsequently transported defendant to Denver City Jail. Concluding that the Golden officers had no authority to execute the arrest warrant in Denver, the trial court ordered the seized evidence suppressed.

On appeal, the People assert that any Colorado peace officer acting pursuant to a valid arrest warrant may arrest the person named therein anywhere in Colorado. Whatever policy concerns may be advanced in support of the argument that peace officers should possess such broad authority to execute arrest warrants, we conclude that the General Assembly has adopted a quite different policy with regard to the extraterritorial arrest authority of Colorado peace officers.

The common law of nineteenth century England recognized that the authority of a public official to execute a warrant was limited to the jurisdiction of the judicial officer issuing the warrant, and that unless the warrant itself specifically named a particular official to execute it, a public official could not execute a warrant outside the geographic boundaries of the political entity employing such official. See, e.g., Rex v. Weir, 1 Barn. & C. 288, 107 Eng.Rep. 108 (1823); Gladwell v. Blake, 1 Cromp. M. & R. 636, 149 Eng.Rep. 1235 (1834). See also 2 Chitty’s Blackstone, Commentaries on the Laws of England, Book IV, ch. 19, p. 236 n. 8 (1874). Early American cases also recognized that a peace officer was prohibited from executing arrest warrants beyond the geographic boundaries of the political entity by which the officer was employed. See, e.g., Lawson v. Buzines, 3 Harr. 416 (Del.1842); York v. Commonwealth, 82 Ky. 360 (1884); Butolph v. Blust, 41 How.Pr. 481, 5 Lans. 84 (N.Y.Sup.Ct.1871); Copeland v. Islay, 19 N.C. (2 Dev. & Bat.) 505 (1837); Page v. Staples, 13 R.I. 306 (1881).²

In Colorado, as elsewhere, the authority of peace officers to effectuate arrests is now defined by legislation. The General Assembly has dealt specifically with the arrest authority of peace officers in Article 3, Part 1 of Title 16, C.R.S.1973. Section 16-3-102, C.R.S.1973 (1978 Repl.Vol. 8), states as follows:

“(1) A peace officer may arrest a person when:

(a) He has a warrant commanding that such person be arrested; or

(b) Any crime has been or is being committed by such person in his presence; or

(c) He has probable cause to believe that an offense was committed and has probable cause to believe that the offense was committed by the person to be arrested.”

In defining the three sets of circumstances authorizing peace officer arrests, the section does not impose territorial arrest limitations on the authority of peace officers to execute arrest warrants. However, section 16-3-106, C.R.S.1973 (1978 Repl.Yol. 8), contains the following critical restrictions upon the arrest authority of peace officers:

“When any peace officer is in fresh pursuit of any alleged offender, having a warrant for his arrest or having knowledge that such warrant has been issued, or, in the absence of an arrest warrant, when the offense was committed in the officer’s presence or 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 officer may pursue him beyond such boundary line and make the arrest, issue a summons and complaint, or issue a notice of penalty assessment.”

When construing two statutes respecting the same or similar subject matter, full effect must be given to both legislative provisions. Buck v. District Court, 199 Colo. 344, 608 P.2d 350 (1980). This court has previously recognized that in enacting section 16-3-106 the General Assembly intended to limit the exercise of the arrest authority delineated by section 16-3-102. People v. Wolf, 635 P.2d 213 (Colo.1981).³

In combination, these two statutes in effect prohibit a police officer “having a warrant” for a person’s arrest from crossing the boundary line marking “the territorial limit” of the officer’s authority unless the officer “is in fresh pursuit” of the alleged offender. Thus, contrary to the People’s assertion, a Colorado peace officer armed with a Colorado arrest warrant has no greater authority to effectuate an arrest pursuant thereto than a peace officer acting on probable cause without such warrant. The statute thus recognizes that in many situations citizens of a particular community may best be served by the requirement that local officers familiar with local neighborhoods accompany peace officers from other jurisdictions seeking to arrest a defendant allegedly present in the Community-

Similar statutory limitations on the arresting authority of peace officers prevail in other jurisdictions. See, e.g., Fla.Stat.Ann. § 901.04 (West 1983 Cum.Supp.); La.Code Crim.Proc.Ann. art. 204 (West 1966). It is true that statutes in some jurisdictions expressly authorize extra-territorial execution of arrest warrants by peace officers. See, e.g., Official Code of Ga.Ann. § 17-4-25 (Michie 1982) (“an arresting officer may, in any county without regard to the residence of the arresting officer, arrest any person charged with a crime.”); N.H.Rev.Stat. Ann. § 594:7 (1974) (the officer named in an arrest warrant “has power to make the arrest at any time and in any place; and shall have, in any county, the same powers in relation to the process as an officer of that county.”); Neb.Rev.Stat. § 29-407 (1979) (“The magistrate issuing any such warrant may make an order thereon authorizing a person, to be named in such warrant, to execute the same; the person named in such order may execute such warrant anywhere in the state.... ”). See also State v. Clingerman, 180 Neb. 344, 142 N.W.2d 765 (1966).

Our General Assembly has expressly provided that peace officers executing search warrants may do so throughout the state. Section 16-3-305(3), C.R.S.1973 (1978 Repl. Yol. 8).⁴ The absence of any such language in either section 16-3-102 or section 16-3-106 indicates a deliberate legislative choice to limit the general authority of peace officers to effectuate extra-territorial arrests based upon Colorado arrest warrants. See 2 W. Ringle, Searches & Seizures, Arrests and Confessions § 23.4(b)(1) (2d ed. 1982).

This court consistently has recognized the requirement that officers acting outside their territorial jurisdictions must obtain the aid of local officers who do have authority to make arrests in the “foreign” jurisdiction, absent fresh pursuit exigencies. In People v. Lott, 197 Colo. 78, 589 P.2d 945 (1979), we affirmed the trial court’s conclu sion that Wheat Ridge Police Department officials who at approximately 3:00 p.m. learned that a burglary suspect would be found at a Denver location at 6:00 p.m. had no authority to arrest the suspect in Denver at 6:00 p.m. Recognizing that the Wheat Ridge officers had no warrant, we pointed out in footnote 1 to that opinion that, assuming the existence of probable cause, a warrantless arrest might have been effectuated by Denver police officials. Contrary to the People’s argument here, our approval of the trial court’s ruling in Lott did not suggest that the presence of an arrest warrant in and of itself would authorize an extra-territorial arrest by peace officers, absent fresh pursuit.

In People v. Schultz, 200 Colo. 47, 611 P.2d 977 (1980), we again emphasized the importance of the presence of peace officers authorized to make arrests in the jurisdiction in which the arrest occurs. We there held that it was immaterial who actually executed an arrest warrant when authorized peace officers participated in the arrest process. Finally, People v. Wolf, supra, again emphasized our recognition of the General Assembly’s prohibition of unilateral extra-territorial arrests by peace officers. These decisions recognize that a peace officer seeking to effectuate an arrest in a jurisdiction other than the one employing such officer must, absent fresh pursuit, obtain assistance from local officers with appropriate arresting authority.

The People argue that Crim.P. 4 authorizes a peace officer possessing an arrest warrant to execute the warrant anywhere within the state. Crim.P. 4(c)(1) contains the following provisions:

“(1) Warrant.

(I) By Whom. The warrant may be executed by any peace officer.

(II) Territorial Limits. The warrant may be executed anywhere within Colorado.”

A warrant is a “written order issued by a judge of a court of record directed to any peace officer commanding the arrest of the person named or described in the order.” Section 16-1-104(18), C.R.S.1973 (1978 Repl. Vol. 8). Crim.P. 4(c)(l)(I) recognizes the inherent authority of every peace officer to execute any arrest warrant. It does not expand the territorial limits legislatively imposed upon the exercise of authority by particular peace officers. Crim.P. 4(c)(1)(H) recognizes that arrest warrants are not territorially limited and, therefore, may be executed anywhere in Colorado by an officer with authority to arrest in the particular jurisdiction in which the person named in the warrant is found. Crim.P. 4(c)(1) complements rather than contradicts the territorial limitations on the authority of peace officers the General Assembly has adopted.

In the circumstances of this case, the trial court correctly concluded that the Golden police officers exceeded their statutory authority in arresting defendant. However, the sanction of the exclusionary rule is designed to effectuate guarantees against deprivation of constitutional rights. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Violations of statutory provisions are not per se violations of constitutionally protected rights. People v. Wolf, supra. See, e.g., United States v. Walden, 490 F.2d 372 (4th Cir.), cert. denied, 416 U.S. 983, 94 S.Ct. 2385, 40 L.Ed.2d 760 (1974); United States v. De-Vaughn, 414 F.Supp. 774 (D.Md.1976), aff’d, 556 F.2d 575 (4th Cir.), cert. denied, 434 U.S. 954, 98 S.Ct. 479, 54 L.Ed.2d 312 (1977). See also United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). But see Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945). Thus, the evidence seized may be suppressed here only if the unauthorized arrest violated constitutional restraints on unreasonable searches and seizures. U.S. Const. Amend. IV; Colo. Const, art. II, § 7.

Here, the warrant itself established probable cause for defendant’s arrest. People v. Gouker, 665 P.2d 113 (Colo.1983). While the Golden officers were not in fresh pursuit when they entered Denver, they were confronted with the possibility that defendant might complete his visit to the Denver bank before any officer arrived. The record is silent concerning reasons for the failure of the two officers to telephone Denver authorities until after defendant was detained. However, Denver authorities were ultimately contacted, and defendant was taken to a Denver jail rather than to any Golden institution. Under these circumstances, we conclude that the conduct of Lamb and Foulke, though not authorized, was not so unreasonable as to violate defendant’s constitutional protection against unreasonable searches and seizures.⁵

Accordingly, the trial court’s order suppressing the evidence seized from defendant at the time of his arrest is reversed. People v. Wolf, supra.

The ease is remanded to the trial court for further proceedings.

LOHR, J., concurs. QUINN, J., specially concurs, and ROVI-RA, J., joins in the special concurrence.

Footnotes

1

. By order of this court, the record has been supplemented by a copy of the warrant. The parties agree that the warrant was valid.

2

. See In Re Popejoy, 26 Colo. 32, 55 P. 1083 (1899), wherein this court held that a defendant’s voluntary submission to his arrest constituted a waiver of the defendant’s right to question his arrest by an Arapahoe County deputy sheriff who, pursuant to a valid arrest warrant, made the arrest in El Paso County. The opinion assumes that the Arapahoe County deputy sheriff had no common law authority outside Arapahoe County to arrest a person who was the object of an arrest warrant.

3

. This appeal does not present any question of the authority of a peace officer to make a “citizen’s arrest” in any geographical area. See § 16-3-201, C.R.S.1973 (1978 Repl.Vol. 8). See also People v. Wolf, supra, and People v. Bloom, 195 Colo. 246, 577 P.2d 288 (1978) (cases addressing a private citizen’s authority to make an arrest). Moreover, the conduct of the Golden officers did not constitute fresh pursuit. See Charnes v. Arnold, 198 Colo. 362, 600 P.2d 64 (1979).

4

. Section 16-3-305(3) states in pertinent part as follows:

“Any judge issuing a search warrant ... for the search of a person or for the search of any motor vehicle, aircraft, or other object which is mobile or capable of being transported may make an order authorizing a peace officer to be named in the warrant to execute the same, and the person named in such order may execute the warrant anywhere in the state.” (emphasis supplied)

5

. Prior to today’s decision we have not had occasion to interpret §§ 16-3-102 and 16-3-106 in the context of an arrest made pursuant to a valid arrest warrant. As we indicated in People v. Wolf, supra, violations by peace officers of statutory limitations upon their arrest authority will continue to be carefully scrutinized.