State v. Holgate

• Decision Date: 15 January 1985
• Citation: 364 N.W.2d 182,122 Wis.2d 779
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE OF WISCONSIN, Plaintiff-Respondent, v. WILLARD G. HOLGATE, Defendant-Appellant. 84-1211-CR.
• Court: Wisconsin Court of Appeals

Page 182

364 N.W.2d 182

122 Wis.2d 779

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

STATE OF WISCONSIN, Plaintiff-Respondent, v. WILLARD G. HOLGATE, Defendant-Appellant.

84-1211-CR.

Court of Appeals of Wisconsin.

Jan. 15, 1985.

Circuit Court, Eau Claire County

Reversed

Appeal from a judgment of the circuit court for Eau Claire county: Roderick Cameron, Judge.

CANE, Presiding Judge.

Willard G. Holgate appeals a conviction for operating a motor vehicle while under the influence of an intoxicant. He argues that the arresting officer did not have authority to make the arrest because the officer was out of his jurisdiction. The trial court held that the arrest was legal because the officer was a de facto deputy of the Eau Claire County Sheriff's Department. Because the officer did not have the general appearance of a deputy sheriff, this court holds that he was not a de facto deputy. As a result, the arrest was illegal, thereby depriving the trial court of personal jurisdiction over Holgate. This court therefore reverses the judgment.

The arresting officer was an on-duty policeman for the City of Altoona. The arrest occurred beyond the city limits of Altoona. The officer at no time pursued Holgate within the city limits of Altoona. The officer wore an Altoona police uniform, and he drove a marked Altoona squad car. He identified himself as an Altoona police officer on the citation he issued to Holgate.

Holgate challenged the trial court's personal jurisdiction on the basis that the officer made the arrest beyond his jurisdiction. The officer claimed that he was a part-time Eau Claire County deputy sheriff. The officer was appointed as a deputy by the sheriff in September, 1982. The sheriff's term of office expired on January 3, 1983, although he was elected to another term. The sheriff reappointed many deputeis after he was sworn in for another term, but he did not reappoint the arresting officer as a deputy.

The trial court lacked personal jurisdiction unless Holgate was brought before the court pursuant to a properly issued warrant, a lawful arrest, or a voluntary appearance. State v. Monje, 109 Wis.2d 138, 144, 325 N.W.2d 695, 699 (1982). The arresting officer made a warrantless arrest, and Holgate timely objected to the trial court's personal jurisdiction. Jurisdiction, therefore, depends entirely on the legality of Holgate's arrest.

A police officer acting outside his jurisdiction does not have any official power to arrest. State v. Slawek, 114 Wis.2d 332, 335, 338 N.W.2d 120, 121 (Ct. App. 1983). An officer may make an arrest outside his jurisdiction, however, when a private person could make a citizen's arrest under the same circumstances. Id. at 336, 338 N.W.2d at 121. A citizen's arrest is lawful only in felony cases and misdemeanor breach of the peace cases. Radloff v. National Food Stores, Inc., 20 Wis.2d 224, 228, 121 N.W.2d 865, 867, on reconsideration, 123 N.W.2d 570, 571 (1963). Because Holgate's offense is not a felony or a breach of the peace, the officer could make a lawful arrest only if he was a de jure or a de facto deputy sheriff.

A person is a de jure officer when he is in all respects legally appointed and qualified to exercise the office. See 63A Am. Jur.2d Public Officers & Employees § 580 (1984). The state contends that the arresting officer was a de jure officer because the term of an appointed deputy sheriff continues until it is revoked in writing by the sheriff. Because the officer's appointment was not revoked in writing, the state argues that the sheriff did not have to reappoint the officer as a deputy.

The arresting officer was not a de jure deputy sheriff because his appointment ended when the sheriff's term of office ended. Although sec. 59.21(6), Stats., does require the revocation of an appointment to be in writing, we do not construe the statute to mean that deputies otherwise have unlimited terms. Section...