My Alvin cop arrived on scene of a DWI accident that occurred just outside Alvin. D's car was wrecked, and he was not operating when officer showed up (civ. wit. wheels him). Officers arrival on scene was promted by a concerned citizen 911 call. Officer witnessed nothing while in Alvin.

Texas appellate courts are currently split on whether officers from a "Type A municipality" can effect arrests outside the limits of their respective municipalities. CompareBrother v. State, 85 S.W.3d 377 (Tex. App. Fort Worth - 2002, pet. filed) withGerron v. State, 57 S.W.3d 568 (Tex. App. - Waco 2001, no pet.). No court that I have found, however, has addressed whether an officer from a "Home Rule" municipality can effect an arrest outside of his municipality (absent felony, hot pursuit, etc.). Further, the new Senate Bill (SB 840) does not apply to these facts b/c none of the dwi was committed in the officer's presence.

Any ideas on how to save this thing?

Thanks.

Up to the point of an arrest, why can't the cop just be treated as a concerned citizen? Anyone can come upon a DWI accident scene and observe evidence and even ask questions. Jurisdictional issues only arise at the point of an arrest. Sounds to me like the defendant was already stopped by the accident.

I understand the implications of an officer acting beyond his statutory authority (civil liability for false imprisonment). I understand the idea that any evidence obtained might be considered tainted and therefore inadmissible. (I think cases like Perkins, 812 S.W.2d 326 are actually applications of the exclusionary rule as to evidence obtained.) But, in general, if an officer has crossed an imaginary line (thereby geographically limiting his statutory authority) is any defense thereby created to the offense? I do not think his acts become constitutionally unreasonable on that basis alone.

I understand the validity of the officer's acts may be an elment which the state must prove as in prosecutions under sec.38.04 or 22.01(b)(1). But, if the validity of the arrest is not part of the offense, is the prosecution automatically barred because Alvin has not yet grown to include the location in question? Does the fact that your defendant was arrested by the wrong person really make a difference in his guilt? There are policy arguments for restricting the jurisdiction of officers, see Love, 687 S.W.2d at 478, but should dismissal of a case be a remedy for the otherwise reasonable conduct of an officer? Heck, just get the defendant rearrested on a warrant by the right person if that is the only complaint being raised. The strange thing to me is that if the officer had obtained a warrant he would have been authorized to execute it "in any county" under art. 15.06. Why worry about whether you can make the warrantless arrest fit one of the statutes or exactly what the geographic jurisdiction of the officer was so long as the court gains jurisdiction over the person of the defendant?

The problem is article 38.23, CCP, which creates a state law based suppression requirement any time evidence is obtained in violation of any law. Now, things that are obtained before the violation obviously should not be suppressed. But, when the original traffic stop is accomplished by an officer acting outside his jurisdiction, Texas courts have taken the position that everything gets suppressed.

The 4th Amendment doesn't require it. Only Texas legislators.

Anything obtained apart from the arrest (e.g., conversations with other witnesses or things observed in plain sight), whether before or after the arrest, are also not subject to exclusion. Thus, my point: sounds like this offense could be proved up without ever calling the officer and certainly without having to mention the fact that the defendant was arrested (or where the arrest took place). Therefore, I say the illegality of the arrest (if it was) is not relevant and provides no defense in itself, though in many cases it might operate to make critical evidence inadmissible because of our ill-advisedly broad, yet long beloved, 38.23.

Thanks for the input, y'all.

Check out Angel v. State, 740 S.W.2d 727 (Tex. Crim. App. 1987) dealing with the scope of the arrest authority of city police officers. This case involved a Tomball P.D. officer making a warrantless arrest in Harris Co. but outside the city limits of Tomball. It basically says that city police officers by statute have the same jurisdiction as "city marshalls" (V.A.C.S., Art. 998) who in turn have the same jurisdiction to arrest as the Sheriff (V.A.C.S., Art. 999), i.e. county wide jurisdiction. I don't know if these statutes still exist or in what form, and it did involve a traffic offense committed in the officer's presence or view. This case was also decided before Art. 14.03 (d) CCP was added. If the defendant was also P.I. that may make a difference. Hopefully this case will still help you.

[This message was edited by ed klein on 08-06-03 at .]