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State v. Lakin11/5/2004
hese facts Knauf of the Pawnee County Sheriff's Department requested assistance from Nielander of the Larned City Police Department. We conclude that he did.
In State v. Rowe, 18 Kan.App.2d 572, 573, 856 P.2d 1340 (1993), rev. denied 253 Kan. 863 (1993), this court stated that "the definition of 'request' may be broad enough to include an implied request," but the facts there did not support such. In Rowe, Wamego police officers responded to a 911 call from a Wabaunsee County resident reporting a car had pulled into her driveway. Wamego is in Pottawatomie County across the county line from Wabaunsee County. A Wabaunsee County sheriff's officer heard the radio traffic of the Wamego officers and responded over the radio that he was on his way. The Wamego officers arrived at the residence first and encountered an intoxicated, combative, and confused Rowe, who they arrested for DUI. The Wabaunsee officers arrived a short time later. This court found that "the definition of 'request' may be broad enough to include an implied request," but that the "Wabaunsee County sheriff's officer's actions and statements amounted at best to acquiescence or acceptance of the Wamego officer's assistance [and] did not constitute a request." We concluded that the case could not be decided on the basis of an "implied request." 18 Kan.App.2d at 573-74. We went on to hold that the Wamego officers had authority to make the arrest for other reasons that are not present in the case at bar.
We conclude that there is more in this case than mere acceptance or acquiescence by Pawnee County authorities to the assistance offered by the Larned City police. Nielander warned Knauf of a potentially dangerous situation, namely, a possibly intoxicated driver leaving city limits and traveling on county roads. There was no hot pursuit as Nielander stopped at the city limits to await instructions after he requested permission to pursue. We believe it significant that Nielander did not proceed on his own. Knauf granted permission and said he was enroute to the scene from another location.
Knauf apparently was further away from the scene than Nielander. Knauf started toward the scene at the same time Nielander left the city limits, but arrived after Nielander. This was a situation where the logical inference is that an officer from the agency with jurisdiction could not get to the scene as fast as could an officer from a neighboring jurisdiction. Knauf did arrive shortly afterward. We conclude then that the verbal permission granted by Knauf to Nielander to pursue in this case constituted the requisite request for assistance under K.S.A.2003 Supp. 22-2401a(2)(b) to grant Nielander authority to arrest Lakin.
**3 With this finding, we need not consider whether Nielander had authority to make a citizen's arrest.
We also note that even if Nielander had lacked the authority to arrest Lakin, the proper remedy is not dismissal of charges, but suppression of any evidence obtained as a result of the illegal arrest. State v. Miller, 257 Kan. 844, Syl. 4, 896 P.2d 1069 (1995). In Miller, a case involving an illegal extraterritorial arrest, the Kansas Supreme Court found that the magistrate judge abused his discretion in dismissing the charges against the defendant and the district court erred in denying the State's appeal. This issue likewise is moot in light of our decision on the legality of the arrest.
Reversed and remanded.
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