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Neiss v. Commonwealth7/27/1993
custody. The term,
"close pursuit," is not defined by statute. "Close pursuit" is a relative term which depends upon time and distance and which must be determined by examining the particular facts of each case. Callands v. Commonwealth, 208 Va. 340, 342-43, 157 S.E.2d 198, 201 (1967).
The trial Judge found that Corpening had lawfully pursued and arrested Neiss in Fairfax County. Corpening saw Neiss commit a misdemeanor traffic violation in Fairfax City. "For purposes of arrest, traffic infractions shall be treated as misdemeanors." Code § 46.2-937. Corpening had authority to arrest Neiss without a warrant for a misdemeanor traffic infraction committed in his presence. Code § 19.2-81. See also Code § 46.2-936 (authorizing issuance of summons in lieu of arrest for traffic infraction). As soon as Corpening observed Neiss commit the traffic infraction, the officer activated his police car emergency equipment and pursued Neiss in an attempt to arrest him or issue him a summons. Corpening overtook Neiss and followed him into Fairfax County, approximately one and one-half miles from where Neiss had committed the misdemeanor. At that point, Neiss stopped his motorcycle and pulled over. The facts support the trial Judge's ruling that Officer Corpening was attempting to arrest Neiss and that he was in close pursuit of Neiss during that attempt. See Callands, 208 Va. at 342-43, 157 S.E.2d at 201 (officers were in "close pursuit" where they began pursuit of suspects immediately upon spotting them and overtook them within a short period of time and distance, i.e., approximately one mile).
Neiss contends that, even if Corpening was attempting to arrest him, the "hot pursuit" exception does not apply because he was not "fleeing from an officer." He argues that because the trial Judge specifically found that he was not "speeding to elude" Officer Corpening, the Judge necessarily found that he was not attempting to flee or escape, and, thus, Officer Corpening was not in pursuit of a person attempting to flee or escape as provided by Code § 19.2-77. We do not agree. The fact that Neiss was not speeding or was not driving so as to elude Officer Corpening does not mean that he was not fleeing from Officer Corpening. Under the facts, Neiss disregarded the officer's pursuit and his emergency lights and siren and attempted to find refuge beyond the officer's jurisdiction. His failure to heed the officer's lights and siren constituted flight from an attempt to arrest. Code § 19.2-77 authorizes an officer to pursue and arrest an individual
beyond the officer's jurisdiction "whenever a person shall flee from officer attempting to arrest him." Proof that the officer was attempting to arrest the suspect and was closely pursuing the suspect satisfies the statutory requirement. See Callands, 208 Va. at 342-43, 157 S.E.2d at 201 (Code § 19.1-94, predecessor statute to Code § 19.2-77, did not require proof of suspects' intent to evade arrest, only proof that police officers, in fact, were in close pursuit while attempting to arrest). The evidence supports the trial Judge's finding that Officer Corpening was in close pursuit of Neiss, who was fleeing into Fairfax County.
We affirm Neiss' conviction.
Affirmed.
Judges Footnotes
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