City of Ash Grove v. Christian

• Decision Date: 22 July 1997
• Docket Number: No. 21161,21161
• Citation: 949 S.W.2d 259
• Parties: CITY OF ASH GROVE, Plaintiff-Respondent, v. Ray Ridenour CHRISTIAN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 259

949 S.W.2d 259

CITY OF ASH GROVE, Plaintiff-Respondent, v. Ray Ridenour CHRISTIAN, Defendant-Appellant.

No. 21161.

Missouri Court of Appeals,

Southern District,

Division One.

July 22, 1997.

Timothy J. Corrigan, Springfield, for defendant-appellant.

Theodore L. Johnson, III, Thomas M. Benson, St. Louis, for plaintiff-respondent.

Before BARNEY, P.J., and PREWITT and GARRISON, JJ.

PER CURIAM.

Ray Ridenour Christian (Defendant) appeals from a judgment of the Circuit Court of Greene County, Missouri, which convicted him of driving while intoxicated in violation of Ordinance 430 of the City of Ash Grove (Plaintiff).

Defendant raises one point of trial court error. Defendant maintains that because he was arrested by a city police officer outside the city limits that his arrest was violative of section 544.157 ¹ because the officer was without jurisdiction to arrest him. Therefore, Defendant argues that the trial court's judgment resulted from its erroneous application of the law regarding the "fresh pursuit" exception to the rule prohibiting peace officers from effectuating warrantless arrests outside their jurisdictional territory. Defendant then asseverates that any evidence gathered during the course of his arrest should have been excluded because it was tainted as "fruit of the poisonous tree" in violation of his constitutional rights against unreasonable searches and seizures. See U.S. CONST. amend. IV; MO. CONST. Art. 1, § 15.

I.

The evidence shows that on October 25, 1995, Officer Jerry Jones, an Ash Grove police officer, was observing traffic near the intersection of Boone and Calhoun streets, inside the city limits of Ash Grove, Missouri. At approximately 1:45 a.m., Office Jones observed Defendant's 1983 Toyota pickup truck as it proceeded north on Calhoun street. Officer Jones noted that the vehicle was driving at a rate of speed in excess of the posted 25 m.p.h. speed limit. Officer Jones testified that the Toyota pickup came to an abrupt stop at the intersection of Boone and Calhoun streets. After leaving the intersection, the Toyota reached a position north of College street, a 35 m.p.h. zone, and Officer Jones noted that Defendant's vehicle was "running in excess of 40 [m.p.h.]." Officer Jones then followed Defendant's vehicle within the city limits, for further observations, and noted the vehicle was "wandering within the traffic lane that it was driving in ... [j]ust gradual movements from near the centerline to near the shoulder." Officer Jones testified that no other vehicle came between his vehicle and that of Defendant. He further stated that the vehicle remained in his line of sight and vision. Defendant's vehicle then traveled outside the city limits of Ash Grove. The officer did not activate his vehicle's emergency lights or siren within the city limits of Ash Grove while following Defendant.

Officer Jones testified that sometime after leaving the city limits of Ash Grove, Defendant voluntarily stopped his vehicle on the shoulder of the road. It was about this time that Officer Jones activated his emergency lights. Defendant was subsequently arrested for driving while intoxicated, outside the city limits of Ash Grove, Missouri. ²

II.

"The law in Missouri considers violations of municipal ordinances to be civil matters, but requires courts to apply the criminal standard of proof beyond a reasonable doubt because of the quasi-criminal aspects involved." University City v. MAJ Inv. Corp., 884 S.W.2d 306, 307 (Mo.App.1994). Our review is under the standard established by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The trial court's decision must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32.

In review of Defendant's sole point of error, Defendant does not contest the fact that he was operating a motor vehicle in an intoxicated condition. ³ Rather, Defendant contends that the arresting officer had no authority to arrest him outside of the city limits of Ash Grove, Missouri.

Defendant asseverates that Officer Jones was not acting pursuant to section 544.157, which authorizes a municipal officer to effectuate an arrest outside the city limits of a municipality. Defendant argues that the actions taken by the police officer did not constitute "fresh pursuit," as that term is used in section 544.157, because at no time during the course of following Defendant did the officer indicate to Defendant that he desired him to submit to the officer's authority.

Section 544.157 reads, in pertinent part, as follows:

1. Any peace officer certified under chapter 590, RSMo, of any political subdivision of this state ... in fresh pursuit of a person who is reasonably believed to have committed a felony in this state or who has committed, or attempted to commit, in the presence of such officer ... any ... violation of a municipal or county ordinance ... shall have authority to arrest and hold in custody such person anywhere in this state. Fresh pursuit may only be initiated from within the pursuing peace officer's ... jurisdiction and shall be terminated once the pursuing peace officer is outside of his jurisdiction and has lost contact with the person being pursued.

* * *

3. The term "fresh pursuit", as used in this section shall include hot or fresh pursuit as defined by the common law and also the pursuit of a person who has committed ... [a] violation of municipal or county ordinance in the presence of the arresting officer referred to in subsection 1 of this section.... "Fresh pursuit " as used herein shall imply instant pursuit. (emphasis added).

Thus, a municipal police officer, such as Officer Jones, who has been certified under the provisions of Chapter 590, when in "fresh pursuit" of a person whom he has seen commit or has attempted to commit a violation of a municipal ordinance may effectuate such a person's arrest outside of the municipality's city limits. ⁴ See §§ 590.100-.500.

The crux of the instant case, then, centers upon the definition of "fresh pursuit." Necessarily, in these types of cases, whether a suspect's arrest is valid under the doctrine of fresh pursuit is generally determined upon an examination of the facts and circumstances of each case. See, e.g., People v. Clark, 46 Ill.App.3d 240, 4 Ill.Dec. 785, 788, 360 N.E.2d 1160, 1163 (1977)(discussing Missouri's "fresh pursuit doctrine" with reference to a parallel Missouri law. See § 544.155).

The present version of section 544.157 was derived from an earlier 1965 enactment. See L.1965, p. 662, §§ 1 to 3, 5, 6, amended by L.1972, H.B. No. 1160, p. 1027, § 1. The former version spoke in terms of "hot pursuit," as opposed to "fresh pursuit," and stated that the term "Hot pursuit, as used herein shall not necessarily imply instant pursuit but pursuit without unreasonable delay." Id. (emphasis added).

The Missouri legislature amended section 544.157 in 1993. The amended version of section 544.157 speaks in terms of "hot pursuit" and "fresh pursuit" interchangeably, without distinction, and substitutes the term "fresh pursuit" for "hot pursuit" throughout the statute. Additionally, the statute now defines "fresh pursuit" in terms of "instant pursuit," not "pursuit without unreasonable delay" as in the original, 1965 enactment of section 544.157. See § 544.157.3 We, therefore, must determine the difference between the two phrases "instant pursuit" as in the present enactment and "pursuit without unreasonable delay" as in the prior enactment. ⁵

The primary rule of statutory construction requires the courts to ascertain the intent of the legislature by considering the plain and ordinary meaning of the words used in the statute. Conagra Poultry Co. v. Director of Revenue, 862 S.W.2d 915, 917 (Mo. banc 1993).

The word "pursuit" has been described as "[t]o follow or chase in order to apprehend or overtake." BLACK'S LAW DICTIONARY 1237 (6th ed.1990). "Pursue" is defined as "to follow in order to overtake, capture, kill, or defeat." WEBSTER'S NEW COLLEGIATE DICTIONARY 938 (1977). Further, the term "fresh" has been described as "immediate; recent; following without any material interval." BLACK'S LAW DICTIONARY 666 (6th ed.1990). "Instant" is described as "[p]resent" or "current." BLACK'S LAW DICTIONARY 799 (6th ed.1990). "Instant" is also defined as "importunate, urgent, present, current, immediate, direct." WEBSTER'S NEW COLLEGIATE DICTIONARY 598 (1977).

The word "delay" is described as "[t]o retard; obstruct; put off; postpone; defer; procrastinate; prolong the time of or before; hinder; interpose obstacles." BLACK'S LAW DICTIONARY 425 (6th ed.1990). "Unreasonable" is described as "[i]rrational; foolish; unwise; absurd; silly; preposterous; senseless; stupid; [n]ot reasonable; immoderate; exorbitant; [c]apricious; arbitrary; confiscatory." BLACK'S LAW DICTIONARY 1538 (6th ed.1990).

When the legislature amends a statute, it is presumed to have intended the amendment to have some effect. Tunstill v. Eagle Sheet Metal Works, 870 S.W.2d 264, 271 (Mo.App.1994). We determine that the phrase "instant pursuit" as used in section 544.157.3 implies an attempt to apprehend or overtake in an immediate manner, without delay. On the other hand, "pursuit without unreasonable delay" connotes an attempt to apprehend or overtake without postponement or prolongation that may be considered immoderate, capricious, arbitrary, or not reasonable. Thus, we hold that 1993 amendment of section 544.157 appears to expand on the immediacy of the concept of "pursuit" by requiring "instant" pursuit, as opposed to the more lax standard of "pursuit without unreasonable delay" as found in the earlier enactment, as well as in the Uniform Law on Fresh Pursuit. See § 544.155; see also footnote 4, supra.

At common law, the doctrine of fresh pursuit, also known as hot pursuit, allows an officer to pursue a felon or suspected felon,...