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Arrest – Fresh Pursuit / Citizen’s Arrest

State v. Blair T. Davis, 2011AP320,District 2, 6/22/11

court of appeals decision (1-judge, not for publication); for Davis: Daniel J. Posanski; case activity

Arrest by campus policeman, outside his jurisdiction, was justifiable under either citizen’s arrest, or fresh pursuit, doctrines.

¶5        The fresh pursuit doctrine states that any Wisconsin peace officer may pursue and arrest a suspect “anywhere in the state” for a violation of any law or ordinance that the officer is authorized to enforce as long as the officer is in “fresh pursuit.”  Wis. Stat. § 175.40(2).  To determine whether an officer was in fresh pursuit, courts must consider three criteria:  (1) the officer must have acted without unnecessary delay; (2) the pursuit must have been continuous and uninterrupted, although there need not have been continuous surveillance of the suspect; and (3) the time between the commission of the crime and the commencement of the pursuit is important; the greater the length of time, the less likely it is that a court will find the officer was in fresh pursuit.  State v. Haynes, 2001 WI App 266, ¶6, 248 Wis. 2d 724, 638 N.W.2d 82.  The fresh pursuit doctrine therefore applies when an officer witnesses a crime in his or her jurisdiction and follows a suspect into another jurisdiction.

¶6        A citizen’s arrest, however, occurs when an officer acts outside of his or her jurisdiction, such as when the officer is in another municipality.  See City of Waukesha v. Gorz, 166 Wis. 2d 243, 245-46, 479 N.W.2d 221 (Ct. App. 1991).  When the officer is outside of his or her jurisdiction and witnesses “a felony or a serious misdemeanor affecting a breach of the peace,” the officer is entitled to make a citizen’s arrest.  Id. at 246-47.  Misdemeanors that amount to a breach of the peace are “acts which involve, threaten, or incite violence.”  Radloff v. National Food Stores, Inc., 20 Wis. 2d 224, 237b, 123 N.W.2d 570, on motion for rehearing (1963).  Drunk driving is considered a breach of the peace but theft is not.  Compare Gorz, 166 Wis. 2d at 247, with Radloff, 20 Wis. 2d at 237b.  The Wisconsin Supreme Court has, however, noted that one state’s highest court held that the illegal sale of alcohol was a breach of the peace.  See Radloff, 20 Wis. 2d at 237b (citing State ex rel. Thompson v. Reichman, 188 S.W. 225, 229 (Tenn. 1916)).

The case involves sale of alcohol to a minor, witnessed by a UW-O campus officer. If the sale occurred within UW-O confines (the trial court made no finding of fact on the point), then the ensuing arrest occurred in fresh pursuit, ¶10. If not, then it was a valid citizen’s arrest, because sale of alcohol to a minor “threatens public order,” therefore amounts to breach of the peace, ¶11.

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