People v. Durham

• Decision Date: 16 May 1979
• Docket Number: No. 77-538,77-538
• Citation: 390 N.E.2d 517,71 Ill.App.3d 725,28 Ill.Dec. 350
• Parties: , 28 Ill.Dec. 350 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Denny R. DURHAM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 517

390 N.E.2d 517

71 Ill.App.3d 725, 28 Ill.Dec. 350

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Denny R. DURHAM, Defendant-Appellant.

No. 77-538.

Appellate Court of Illinois, Fifth District.

May 16, 1979.

Michael J. Rosborough, Deputy State Appellate Defender, Patricia L. Morris, Asst. State Appellate Defender, Fifth Judicial Dist., Mount Vernon, for defendant-appellant.

William B. Ballard, Jr., State's Atty., Jonesboro, Raymond F. Buckley, Jr., Deputy Director, William S. Zale, Staff Atty., State's Attorneys Appellate Service Commission, Mount Vernon, for plaintiff-appellee.

KARNS, Justice:

Following a jury trial in Union County, defendant, Denny Durham, was convicted of aggravated assault, armed violence, unlawful use of weapons and criminal damage to property valued less than $150.00. From his conviction, defendant appeals. The sole issue is whether a Union County police officer, a deputy sheriff, had authority to arrest the accused without a warrant in an adjoining county when he had probable cause to believe that the accused committed an offense in Union County.

The facts are undisputed that shortly after midnight on May 26, 1977, defendant fired three or four shots into the home of Clyde and Lois Lingle, the parents of defendant's ex-wife, from a passing automobile driven by Lee Lesar. Mr. Lingle, who had been sitting in his living room, immediately called the Union County Sheriff's Office. He told Sergeant Ward Walshon that someone had fired shots into his home and that defendant was probably responsible for the shooting as defendant had committed such acts on two or three previous occasions. Officer Walshon was familiar with the Lingle family and defendant, and knew that the Lingles had problems with defendant before. After receiving the phone call, Walshon drove his squad car south on Route 127 in Union County. As he approached the boundary line separating Union and Alexander counties he saw a vehicle on County Line Road heading west towards Route 127. Walshon knew that County Line Road was connected to the road on which the Lingles lived and that there was little traffic on that road at 1:10 a. m. Walshon proceeded south on Route 127 past the intersection with County Line Road and observed the automobile turn onto Route 127 behind him. After traveling a quarter to a half of a mile farther, he backed off into a driveway and shined his headlights across the highway. At this point, both vehicles were in Alexander County. As the automobile passed by, Walshon saw defendant in the front passenger's seat. Walshon then pulled back onto the highway and stopped the automobile. He made a quick search of defendant and found five or six rounds of ammunition. He then went over to Lesar's car and saw a .38 caliber revolver and a lever action rifle in plain view on the floorboard. After gathering the weapons, Walshon noticed that the rifle smelled as though it had recently been fired. Lesar and defendant were then informed that they were under arrest.

Prior to trial, defendant filed a motion to suppress the weapons and ammunition found at the time of the arrest alleging that they were illegally seized. At the hearing on the motion, defendant argued that Sergeant Walshon, a Union County Deputy Sheriff, had no authority to arrest defendant in Alexander County unless he was in "fresh pursuit" and that the evidence showed no indication of such pursuit at the time the parties entered Alexander County. As Walshon, defendant argues, was clearly exceeding his authority in arresting defendant, any evidence seized incident to that arrest must be suppressed. The trial court denied defendant's motion.

At common law, municipal and county peace officers generally had no authority to make a warrantless arrest outside the political entity in which they held office. (Krug v. Ward, 77 Ill. 603 (1875); Kindred v. Stitt, 51 Ill. 401 (1869); People v. Clark, 46 Ill.App.3d 240, 4 Ill.Dec. 785, 360 N.E.2d 1160 (5th Dist. 1977).) The sole exception to this rule that these officers had no authority to arrest in such situations was when the offender fled from the jurisdiction with the officer following in fresh pursuit. (Krug v. Ward; People v. Clark; Taylor v. City of Berwyn, 297 Ill.App. 417, 17 N.E.2d 1007 (1st Dist. 1938).) This common law rule, however, has been modified by statute. Under subsection (c) of section 107-5 of the Criminal Code (Ill.Rev.Stat.1977, ch. 38, par. 107-5(c)), "(a)n arrest may be made anywhere within the jurisdiction of this State." While there is no case law interpreting the scope of this provision, we believe it lays to rest the notion that a police officer is limited by the concept of territorial boundaries or jurisdiction when making an arrest. Therefore, it is proper for a police officer to make a warrantless arrest in an adjoining county when he has probable cause to believe that...