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State v. Hutchinson11/24/2004
This case arises out of an extra-jurisdictional stop made by an off-duty police officer who suspected Larissa A. Hutchinson of driving while intoxicated. The State justified the stop as a "citizen's arrest" by the officer, but the trial court held that the stop was unreasonable. It suppressed the evidence obtained subsequent to the stop and ordered the case dismissed. We disagree and reverse. We remand with directions that the complaint be reinstated.
. We will begin with a short primer of the law involved, and then we will apply the facts to the law. The idea that citizens are responsible for policing their communities dates back to before the Norman Conquest of 1066, where free male subjects were expected to constrain felons. Katherine Marsh, Playing Police, Legal Affairs, July/August2004, at 16, 16. This circumstance continued up through late nineteenth-century America as police forces were virtually nonexistent. Id. at 16-17. Thus, the "citizen's arrest" is based upon a strong common-law foundation. Certainly, times have changed with the advent of institutionalized police forces, but in many states the common-law rule has not been abrogated. See Nicholas L. Lopuszynski, Father Constitution, Tell the Police to Stay on Their Own Side: Can Extra-Jurisdictional Arrests Made in Direct Violation of State Law Ever Cross the Fourth Amendment's "Reasonableness" Line?, 53 DePaul L. Rev. 1347, 1358 (2004). In Wisconsin, it is alive and well. See State v. Slawek, 114 Wis. 2d 332, 335, 338 N.W.2d 120 (Ct. App. 1983).
. In general, citizens may arrest when a felony or misdemeanor effecting a breach of the peace is committed in their presence. City of Waukesha v. Gorz, 166 Wis. 2d 243, 246-47, 479 N.W.2d 221 (Ct. App. 1991). While a citizen can only arrest for breaches of the peace committed in his or her presence, the right to arrest exists "while [the breach of peace] is continuing, or immediately after it has been committed, or while there is a continuing danger of its renewal." 5 Am. Jur. 2d Arrest § 57 (2004) (footnotes omitted.) Restatement (Second) of Torts § 119 (1965) is in accord with this rule and provides:
[A] private person is privileged to arrest another without a warrant for a criminal offense
....
(c) if the other, in the presence of the actor, is committing a breach of the peace or, having so committed a breach of the peace, he [or she] is reasonably believed by the actor to be about to renew it.
. A comment to this section explains that this citizen's arrest privilege "was confined in the early English cases to the detention of a person who was breaking the peace in the actor's presence, or was reasonably suspected of intending to renew a breach of the peace so committed ...." Id. at cmt. n. Thus, while the general rule requires a breach of the peace to be committed in the citizen's presence, an equally important consideration is whether the citizen reasonably believes there is a continuing danger that the offender intends to repeat or resume the breach of the peace recently committed.
. Against this backdrop is the advent of the twentieth-and twenty-first-century police force. Toward the end of the nineteenth century, newly established police forces assigned police officials to patrol within specific territories. Lopuszynski, supra, at 1355. Along with formalizing police forces and exact police borders, the law correspondingly recognized the common-law doctrines of citizen's arrest and hot pursuit because police could not officially arrest outside of their territory. Id. Thus, the law in Wisconsin and elsewhere has evolved such that law officers may make citizens' arrests outside their jurisdiction in the same manner as a private citiz
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