Seeking Suppression for Out-of-Jurisdiction Arrests

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Local law enforcement officers do not have statewide territorial jurisdiction to arrest. Instead, they generally are authorized to arrest only within the jurisdictional boundaries of the city or county they serve or own property owned by that city or county. See G.S. 15A-402 (discussed in detail here). Exceptions to the general rule permit out-of-jurisdiction arrests based on immediate and continuous flight and in certain other limited circumstances. When a law enforcement officer makes an arrest outside of his or her territorial jurisdiction, the person arrested may move to suppress the evidence resulting from the arrest. How should a court evaluate whether to grant such a motion?

Basis for suppression. G.S. 15A-974 provides that upon timely motion, evidence must be suppressed if: (1) its exclusion is required by the federal or state constitution; or (2) it is obtained as a result of a substantial violation of Chapter 15A—the Criminal Procedure Act.

No constitutional violation. An arrest made by an officer who has probable cause to believe that the arrestee has committed a crime, even a minor one, satisfies the Fourth Amendment’s reasonableness requirement. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). That precept applies even when the arrest is carried out in violation of state law. In Virginia v. Moore, 553 U.S. 164 (2008), the United States Supreme Court held that the defendant’s arrest for driving with a suspended license did not violate the Fourth Amendment even though Virginia law prohibited the officers from arresting the defendant for this offense and only permitted the issuance of a citation. The Supreme Court reasoned that incorporating state-law arrest limitations into the United States Constitution would unwisely obfuscate the bright-line constitutional standard allowing arrests based on probable cause and would cause Fourth Amendment protections to “vary from place to place and from time to time.” Id. at 176 (internal quotations omitted).

Thus, so long as the arrest is supported by probable cause, the arrest of a person by an officer acting outside of his or her territorial jurisdiction does not violate the Fourth Amendment. Because North Carolina’s constitutional provisions on search and seizure are coextensive with the requirements of the Fourth Amendment, there likewise is no violation of the state constitution when an arrest supported by probable cause violates state statute. State v. Gwyn, 103 N.C. App. 369, 371 (1991).

A statutory violation. Such an arrest does, however, run afoul of the rules in G.S. 15A-402, a provision of the state’s criminal procedure act. The question a court must consider in light of a motion to suppress for such a violation is whether the violation is substantial.

To determine whether a violation of Chapter 15A is substantial, G.S. 15A-974(a)(2) requires the court to consider all the circumstances, including:

  1. the importance of the particular interest violated;
  2. the extent of the deviation from lawful conduct;
  3. the extent to which the violation was willful; and
  4. the extent to which exclusion will tend to deter future violations of the Criminal Procedure Act.

But not typically a substantial one. Time and again, the state’s appellate courts have determined that arrests made outside officers’ territorial jurisdiction did not amount to substantial violations of Chapter 15A. Appellate courts have referred to such violations as “technical,” “not fundamentally unfair nor prejudicial,” not supported by “oppressive circumstances,” and have characterized them as being outweighed by the State’s interest. Consider the following cases:

  • State v. Scruggs, 209 N.C. App. 725 (2011) (assuming that campus police officers acted outside of their territorial jurisdiction when, while conducting a roving patrol in Greensboro, they stopped defendant upon suspicion of impaired driving and subsequently arrested him, their acts did not “rise to the level of a substantial violation”).
  • State v. Pearson, 131 N.C. App. 315 (1998) (even if city police officer’s actions in taking the defendant to another location for breath testing when instrument in city police station malfunctioned was contrary to statutory authority, (and court does not believe they were), the the “technical violation would not be so serious as to constitute a ‘substantial violation’ of defendant’s rights”; stating that “[i]t is not fundamentally unfair nor prejudicial to a defendant that evidence is obtained by police officers outside of their territorial jurisdiction” (internal quotations omitted)). Note: S. 20-38.3(2) now specifically authorizes a law enforcement officer to take a person arrested for an implied-consent offense to any place within the State for one or more chemical analyses.
  • State v. Gwyn, 103 N.C. App. 369 (1991) (defendant was not entitled to suppression of evidence resulting from his arrest for impaired driving by an NC Highway Patrolman, which occurred just over Virginia border; defendant’s privacy interests were outweighed by officer’s authority to stop his vehicle on reliable grounds, defendant was driving in NC and potentially was a menace to public safety when the officer signaled him to stop; and, since the officer did not know that defendant crossed the state line before stopping his truck, the statutory violation was neither extensive nor willful).
  • State v. Williams, 31 N.C. App. 237 (1976) (finding that there were no “oppressive circumstances” surrounding the arrest of the defendant more than three miles outside the town limit; also finding no violation of Chapter 15A based on jurisdictional rule codified in Chapter 160A).

That’s not to say there couldn’t be one. If a defendant were able to show that an officer intentionally and unnecessarily exercised his or her arrest authority outside of his or her territorial jurisdiction or carried out an arrest in violation of the controlling jurisdiction’s policy or practice, a court might well conclude that such a violation was substantial.

What about actions short of arrest? In the case of an arrest carried out in connection with a traffic stop, there is, of course, a preceding interference with individual liberty: the stop itself.  When an officer merely stops an individual outside of the officer’s territorial jurisdiction but does not carry out an arrest, G.S. 15A-402, which only sets forth jurisdictional rules for arrest, arguably does not apply. In the absence of a controlling provision of criminal procedure, a defendant who seeks to suppress evidence resulting from a stop made by an officer outside of the officer’s jurisdiction may be required to establish a constitutional violation to be entitled to relief. Cf. State v. Harris, 43 N.C. App. 346 (1979) (A deputy sheriff stopped the defendant (who was suspected of murder) while the defendant was driving his car in a neighboring county. During the traffic stop, the deputy seized the gun allegedly used to kill the victim. He then allowed the defendant to leave. The defendant argued that evidence regarding the gun should be suppressed because the deputy stopped him outside of the deputy’s territorial jurisdiction. Without reaching the question of whether the events blossomed from an investigatory stop to an arrest under G.S. 15A-402, the court held that the stop was constitutional and that, even assuming there was an arrest, the acts were not a substantial violation of Chapter 15A that would require exclusion of the evidence).

9 comments on “Seeking Suppression for Out-of-Jurisdiction Arrests

  1. I would be more concerned with an officer losing qualified immunity while conducting an arrest that runs afoul of 15A-401. An interesting decision related to this issue from the NC Court of Appeals is State v York NO COA13-1147 (2014). This was an unpublished opinion, but the three judge panel unanimously ruled that a police officer’s arrest despite having probable cause was unlawful because it ran afoul of 15A-401 since the offense, larceny, occurred outside the officer’s presence and none of the exceptions applied in the case. The court ultimately dismissed an RDO charge and ruled that the defendant could lawfully resist the arrest even though she just committed a theft from Belks and the officers had probable cause through video that she committed the act. It is a stark reminder on how important it is for every officer to fully understand the statutory powers of arrests as it is complicated and some of the exceptions are open to interpretation. There is very little case law on this topic and a lot of bad guidance out there on it.

    • Very helpful comment. Thanks!

    • We should consider changing 15A to allow local law enforcement officers to arrest outside their jurisdiction. All officers are certified by the State of North Carolina and must meet the same standards. Uniformed officers are especially vulnerable when travelling outside their jurisdiction. They certainly should have the authority to arrest for any crime committed against them or violent felony in their presence.

  2. Oh boy, the NC substantial violation doctrine of allowing the government to violate its own rules if the violations aren’t really that bad after all. I am pretty sure I know what my crim pro professor would label such a doctrine… Can’t wait to argue to a jury that my client’s actions didn’t substantially violate a statute.

    • Not really. That looks pretty systematic. If we want to have different rules about what the police can and can’t do, we change the law. That is the democratic process. This business of evaluating whether statutory violations are substantial enough to have an actual consequence is more than a little squishy.

  3. However, let’s not forget that had she shoplifted, then the arrest can be made w/o a warrant and be in compliance with statute.
    One of my faves on this topic is the DWI that was stopped and detained by a fire truck….

    • A Chapel Hill Fire Department truck. Ironic based on current issues?

  4. would an infraction citation (not an arrest) issued by a municipal officer, in a different municipality from his own, without a mutual aid agreement, be invalid ab initio, as without jurisdiction or authority, even though evidence might not be suppressed in prosecution of a subsequent citation issued by an authorized officer where the first officer is a witness? even if the citation meets all requirements, otherwise; would it not be the equivalent of a “citizen’s citation”?

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