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Court of appeals finds defendant’s “fresh pursuit” argument stale

State v. Christopher C. Bouchette, 2017AP820-CR, 10/26/17, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

A Wood County officer spotted Bouchette driving “at a higher rate of speed” near the county border.  He followed Bouchette for less than 5 minutes outside of his jurisdiction into Portage County and activated his siren. Bouchette did not pull over. He veered across the center line and drove into a ditch, which led to a search and a charge of driving with a PAC (2nd offense). Bouchette moved to suppress evidence that the officer obtained outside of his jurisdiction.

¶9 As a general rule, police officers may exercise their official authority only within the physical boundaries of their home jurisdictions. See State v. Haynes, 2001 WI App 266, ¶13, 248 Wis. 2d 724, 638 N.W.2d 82. One exception to the general rule is the fresh pursuit doctrine. Wis. Stat.. § 175.40(2) states: For purposes of civil and criminal liability, any peace officer may, when in fresh pursuit, follow anywhere in the state and arrest any person for the violation of any law or ordinance the officer is authorized to enforce.

¶10 The State must prove the following to invoke the fresh pursuit doctrine, justifying official action outside an officer’s home jurisdiction: (1) the officer commenced the pursuit without unnecessary delay; (2) the pursuit was continuous and uninterrupted; and (3) the relationship in time between the commission of the offense, the commencement of the pursuit, and the apprehension was brief enough such that the circumstances were sufficiently exigent to justify an extra-jurisdictional arrest. City of Brookfield v. Collar, 148 Wis. 2d 839, 842-43, 436 N.W.2d 911 (Ct. App. 1989).

The court of appeals held that the officer’s pursuit and detention of Bouchette outside of his jurisdiction was justified under §175.40(2) based upon probable cause of speeding inside Wood County. Op. ¶16. 

Bouchette objected to the fact that the officer estimated speed based purely on common sense. The court of appeals said common sense is good enough:

¶15 . . . Bouchette argues that the officer “was unable to apply any of the common methods and techniques that police officers often use to determine speeding violations without the aid of a speed detecting device,” and therefore he could not have had probable cause to pursue Bouchette. It is true that the officer did not testify that he had used any “speed detecting device.” He testified that he relied solely on his ability to mentally process what he observed. However, I reject the premise of Bouchette’s argument that, as a matter of logic and common sense, an observant and trained officer under the circumstances here could not accurately determine to the level of probable cause, based on visual evidence alone, that the vehicle was traveling significantly in excess of the speed limit (55-60 m.p.h. in a 45 m.p.h. zone with which he was familiar). In addition, Bouchette fails to explain why I should conclude that the circuit court committed clear error in crediting the officer’s testimony, based in part on his training and experience, that he was able to reasonably gauge this particular speed differential as the vehicle traveled approximately 100 feet.

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