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Text of Document:
Memorandum From: Sid Hemsley, Senior Law Consultant
Date: June 14, 2011
Re: Extraterritorial arrests
You have the following question: Under what authority do police officers have the right to arrest and pursue defendants outside the territorial limits of the city?
The Tennessee courts have used three statutes to support extraterritorial pursuits and arrests, and the simple doctrine that it makes no sense for a pursuit to have started in one jurisdiction to be required to terminate when it reaches another jurisdiction. The three statutes are what are now Tennessee Code Annotated, section 6-54-301, and Tennessee Code Annotated, section 40-7-103, and Tennessee Code Annotated, section 40-7-109. The first statute provides that:
The police authority of incorporated towns and cities shall extend a distance of one mile from the corporate limits thereof, for the suppression of all disorderly acts and practices forbidden by the general laws of the state; provided that such jurisdiction of an incorporated town or city shall not be hereby extended beyond the limits of the county in which any part of such town is situated, so as to come within one (1) miles of any other incorporated town or city.
The second statute provides that, among other things:
(a) An officer may, without a warrant, arrest a person:
(1) For a public offense committed or a breach of the peace threatened in the officer’s presence;
(2) When the person has committed a felony, though not in the officer’s presence;
(3) When a felony has in fact been committed, and the officer has reasonable cause for believing the person has committed the felony; ….
The third statute provides that:
(a) A private person may arrest another:
(1) For a public offense committed in the arresting person’s presence;
(2) When the person arrested has committed a felony, though not in the arresting person’s presence; or
(3) When a felony has been committed, and the arresting person has reasonable cause to believe that the person arrested committed the felony.
The touchstone case on this question is still Francis v. State, 498 S.W.2d 107 (Tenn. 9723). There the defendant was pursued by a police officer approximately 1-1/2 miles beyond the city limits of Cleveland, apparently for the offense of speeding inside the city (which continued until the termination of the pursuit in the defendant’s driveway). After an exchange that went from unfriendly to friendly and back to unfriendly, and the intervention of a sheriff’s deputy at the request of the Cleveland police officer, the confrontation turned violent ending in the assault of the Cleveland police officer, and the killing of, the deputy sheriff by the defendant. One of the grounds upon which the defendant challenged his murder conviction was that the Cleveland police officer had no grounds to pursue or arrest him. Citing all the above statutes and common sense doctrine, the court rejected the defendant’s argument. The Court reasoned that Tennessee Code Annotated, section 40-7-103 would not allow an officer to pursue a defendant for the commission of a misdemeanor, except in the case of continuing offense and where the officer does not lose sight of the defendant, both of which applied in this case.
With respect to the application of Tennessee Code Annotated, section 6-54-301, to the officer’s pursuit of the defendant outside the City of Cleveland, the Court, citing cases from other jurisdictions, declared that:
Surely it cannot be said with reason that the authority of city policemen to arrest are committing public offenses in their sight and presence is terminated and they become helpless and barred from arresting such an offender if he succeeds in outrunning them to the city limits, or to the one mile limit prescribed by [what is now TCA section 6-609 [now 6-54-301]. Indeed, such a theory would require city police officers seeing a patently drunken driver within the city, in violation of a city ordinance and state law, to abandon pursuit at the one-mile limit and permit him to continue and imperil all persons upon the highway. The arms of municipal law officers are not to be so tied. The one mile limit prescribed by TCA section 6-609 [now 6-54-301] was never intended to provide sanctuary and freedom from arrest for a criminal who can outrun the policemen to that line. It is not the law that city policemen seeing law violations within the city must stop their pursuit at that line and permit the fleeing offenders to escape before their eyes. [At 114]
Drawing on Tennessee Code Annotated, section 40-816 [now 40-7-109], the Court declared that:
Moreover, if it be argued that Officer McLain’s status became that of a private individual when he crossed the city boundary, or the one mile limit, his pursuit of the fleeing defendant for the purpose of arresting him was still lawful. TCA section 40-816 [now 40-7-109 authorizes arrest by a private person for a public offense committed in his presence….If an officer sees a public offense committed, he may arrest the offender outside his bailiwick, because any private person could do as much. This would be true whether the officer merely happened to be outside his bailiwick at the moment, or passed the boundary line in fresh pursuit of the fleeing offender (assuming that he does not go outside of the state.” Perkins, the Tennessee Law of Arrest, 2 Vanderbilt Law Review, 59, 854-585. [At 115]
State v. Francis, above, has been followed in a number of cases involving extraterritorial police officers' and sheriffs' deputies pursuits, including State v. Johnson, 661 S.W.2d 854 (Tenn. 1983), State v. Bellamy, 2004 WL 2358099 (Tenn. Ct. App.), and other cases cited therein.
But in the interesting case of State v. Burkhart, 2010 WL 844773 (Tenn. Ct. Crim. App. 2010), a city police officer followed (but not in pursuit of) a vehicle into the county for the purpose of determining whether the driver was in control of her vehicle. The driver had been going over the speed limits and committed several street and road lane violations inside the city before the police officer stopped her .6 of a mile outside the city limits. The Court concluded that:
Officer Stone had reasonable suspicion to stop the defendant and investigate a possible DUI, and accordingly, his detention of her did not run afoul of the applicable constitutional provisions relative to searches and seizures. We have also concluded that Officer Stone was authorized to wield the authority of a police officer of the City of Sevierville when, entertaining a reasonable suspicion that a DUI was in progress, he stopped the defendant’s vehicle beyond the corporate limits of Sevierville but within the one-mile zone established by Code section 6-54-301.” [At 5]