People v. Lahr
| Decision Date | 12 March 1992 |
| Docket Number | No. 71516,71516 |
| Citation | 589 N.E.2d 539,147 Ill.2d 379,168 Ill.Dec. 139 |
| Parties | , 168 Ill.Dec. 139 The PEOPLE of the State of Illinois, Appellant, v. Peter L. LAHR, Appellee. |
| Court | Illinois Supreme Court |
Roland W. Burris, Atty. Gen., Springfield, and Gary V. Johnson, State's Atty., of Geneva , for the People.
Peter L. Lahr, pro se.
On June 17, 1989, defendant, Peter Lahr, was driving east on Route 72 in unincorporated Kane County, approximately seven-tenths of one mile outside the village of Sleepy Hollow. At this time, Officer Beyer of the Sleepy Hollow. At this time, Officer Beyer of the Sleepy Hollow police department was conducting stationary radar surveillance near that location. Based on a radar reading of defendant's car, Officer Beyer stopped defendant and issued a traffic citation for speeding (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-610(b)). At the time of the arrest, Officer Beyer was in uniform, was driving an official police vehicle and held himself out to defendant as a police officer.
Prior to trial in the circuit court of Kane County, defendant filed several pro se motions to strike the complaint and dismiss the charges against him. The circuit court construed these as motions to quash arrest and suppress evidence. The circuit court granted one of defendant's motions, which motion was predicated on the fact that defendant was arrested by a member of the Sleepy Hollow police department on a road located outside that municipality's boundaries. The court found that the arresting officer lacked official police authority to arrest defendant and, further, that due to the officer's use of radar surveillance outside his jurisdiction the arrest could not be legitimized by section 107-3 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1989, ch. 38, par. 107-3 (arrest by private citizen)).
The appellate court, with one justice dissenting, affirmed the trial court's ruling on the motion. (207 Ill.App.3d 419, 152 Ill.Dec. 484, 566 N.E.2d 12.) We granted the State's petition for leave to appeal.
At common law, municipal and county police officers had no authority to arrest a defendant outside the territorial limits of the political entity which appointed them to their office. The sole exception to this rule at common law was when the officers were in "fresh pursuit" of a suspected felon fleeing that jurisdiction. This common law rule has been modified by our appellate court's interpretation of section 107-3 of the Code of Criminal Procedure (Ill.Rev.Stat.1989, ch. 38, par. 107-3) (arrest by private person). Section 107-3 provides:
"Any person may arrest another when he has reasonable grounds to believe that an offense other than an ordinance violation is being committed." Ill.Rev.Stat.1989, ch. 38, par. 107-3.
In interpreting section 107-3, our appellate court has held that a warrantless arrest made by a police officer outside of his jurisdiction may constitute a valid citizen's arrest. (See, e.g., People v. O'Connor (1988), 167 Ill.App.3d 42, 117 Ill.Dec. 730, 520 N.E.2d 1081; People v. Gupton (1985), 139 Ill.App.3d 530, 94 Ill.Dec. 183, 487 N.E.2d 1060; People v. Rowe (1984), 128 Ill.App.3d 721, 84 Ill.Dec. 49, 471 N.E.2d 578; People v. Marino (1980), 80 Ill.App.3d 657, 36 Ill.Dec. 71, 400 N.E.2d 491.) These cases recognize that a police officer acting outside his jurisdiction retains all the rights of an ordinary citizen, including the right to effect a citizen's arrest. ( O'Connor, 167 Ill.App.3d at 46, 117 Ill.Dec. 730, 520 N.E.2d 1081; Gupton, 139 Ill.App.3d at 533, 94 Ill.Dec. 183, 487 N.E.2d 1060; Rowe, 128 Ill.App.3d at 724, 84 Ill.Dec. 49, 471 N.E.2d 578; Marino, 80 Ill.App.3d at 665, 36 Ill.Dec. 71, 400 N.E.2d 491.) However, these cases also recognize that when outside his jurisdiction, a police officer's right to arrest is no greater than that of a private citizen. Therefore, an extraterritorial arrest will not be upheld if in making the arrest the officer uses the powers of his office to obtain evidence not available to private citizens. See O'Connor, 167 Ill.App.3d at 46-47, 117 Ill.Dec. 730, 520 N.E.2d 1081.
Because the State does not argue that the arresting officer had official authority to arrest defendant, the sole issue we must decide is whether the extraterritorial arrest of defendant was a valid citizen's arrest under section 107-3. The circuit court found "[t]hat, by reason of the use of radar surveillance equipment by the arresting officer herein, said arresting officer was acting within his official capacity and not as a private citizen" and, therefore, the arrest was not a valid citizen's arrest under section 107-3. Similarly, the appellate court stated "use of such [radar] equipment, in our view, taints the gathering of the information and its later use (see O'Connor, 167 Ill.App.3d at 47, 117 Ill.Dec. 730, 520 N.E.2d 1081) because the officer used the power of his office to gain access to evidence not available to private citizens." 207 Ill.App.3d at 421, 152 Ill.Dec. 484, 566 N.E.2d 12.
The State argues that use of the radar gun is not an assertion of police authority because ordinary citizens may obtain and use this equipment. The State maintains that because the defendant was driving on a roadway open to plain view and because the radar equipment was available to the general public, the officer did not use the powers of his office to obtain evidence not available to a private citizen. Although it is hypothetically possible for a private citizen to obtain a radar gun and conduct his own surveillance of a road, we believe the possibility of this happening is remote. We believe it is generally true that the use of radar guns for monitoring the speed of traffic is limited to police officers. Therefore, despite the fact that this type of radar equipment is not strictly limited to police officers, we believe its use in this case was an assertion of the officer's police authority.
Further, we believe the present case is distinguishable from our appellate court cases which have upheld the validity of extraterritorial arrests under section 107-3. In Marino, the Chicago police began investigating the defendant based on evidence that he was involved in an attempted burglary in Chicago. This investigation led the officers to Wood Dale, where they set up a surveillance and observed the defendant commit a burglary for which the Chicago police then arrested him. The appellate court found the arrest was a valid citizens' arrest under section 107-3, even though the officers asserted their official authority to effect the arrest. (Marino, 80 Ill.App.3d at 665, 36 Ill.Dec. 71, 400 N.E.2d 491.) In Marino, the defendant did not argue that the arrest was invalid because police used the power of their office to obtain evidence not available to private citizens, but rather that the arrest was invalid because they improperly asserted the authority of their office to effect the arrest. Thus, in Marino, the court never considered the question at issue here, namely, whether the manner in which the officers gathered the evidence was an improper assertion of police authority. Further, unlike Marino, in the case at bar the arresting officer was not investigating any particular person or any crime known to have been committed within Sleepy Hollow. It appears the officer was doing what many police officers do--waiting by the side of a road for speeding motorists to pass.
Similarly, this case is distinguishable from O'Connor, in which a Palos Park police officer parked his squad car in an unincorporated area outside his jurisdiction in order to conduct radar surveillance of a road located within Palos Park. In O'Connor, the offense and arrest both occurred in the officer's jurisdiction. The court found the use of the radar equipment was not an impermissible extraterritorial assertion of police authority in large part because the road under surveillance was within the officer's jurisdiction. (O'Connor, 167 Ill.App.3d at 47, 117 Ill.Dec. 730, 520 N.E.2d 1081.) In the present case, neither the position of the radar nor the point of the offense was within the officer's jurisdiction.
In Gupton and Rowe, prior to arresting the defendants, the arresting officers first observed the cars driven by the defendants swerving from lane to lane. The officers stopped the cars for improper lane usage and upon observing the drivers arrested them for driving under the influence. After making the arrests, the officers administered breathalyzer tests in their role as police officers. The appellate court found the extraterritorial arrests were valid citizens' arrests because the officers had probable cause to arrest the defendants based on their observations of defendants' swerving cars. (Gupton, 139 Ill.App.3d at 533, 94 Ill.Dec. 183, 487 N.E.2d 1060; Rowe, 128 Ill.App.3d at 724, 84 Ill.Dec. 49, 471 N.E.2d 578.) Because the breathalyzer tests occurred after the arrests, this assertion of police authority did not invalidate the arrests. (Gupton, 139 Ill.App.3d at 534, 94 Ill.Dec. 183, 487 N.E.2d 1060; Rowe, 128 Ill.App.3d at 724, 84 Ill.Dec. 49, 471 N.E.2d 578.) Thus neither Gupton nor Rowe addresses the question of whether a prearrest assertion of the officer's official authority (i.e., the use of the radar gun) to obtain evidence will invalidate an extraterritorial arrest. Further, despite the State's arguments to the contrary, in the instant case the record is silent as to whether the officer was able to determine that defendant was speeding without the aid of the radar.
The State also relies on Phoenix v. State (Fla.1984), 455 So.2d 1024, in which the Florida Supreme Court applied that State's "under color of...
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