Van Horn v. State , 1990 Wyo. LEXIS 160 ( 1990 )

URBIGKIT, Chief Justice.

Appellant argues a municipal peace officer may not execute a municipal bench (arrest) warrant outside the boundaries of that municipality. We agree and reverse appellant’s conviction for interference with a municipal peace officer.

Appellant, Dennis Milo Van Horn, was found guilty of interference with a peace officer and sentenced to fifteen days in the Crook County, Wyoming jail and ordered to pay $850 for the cost of his court-appointed attorney and $50 to the Victims of Crime Compensation Fund.¹

The parties stipulate that officers of Moorcroft’s municipal police force observed an automobile driving erratically within the municipal limits of Moorcroft and activated their patrol car’s overhead lights; the automobile was stopped outside the municipal limits; after they made the stop, the officers identified appellant, who was a passenger in the automobile, and arrested him outside the Moorcroft municipal limits; and appellant’s arrest was based on an outstanding municipal bench warrant signed by the Moorcroft municipal judge. Appellant’s conduct during this arrest led to the misdemeanor charge for interference with a peace officer. All of this is based on a July 8, 1988 charge of battery as the only other offense with which appellant had been involved. From what is provided in this record, it appears that on July 21, 1988, appellant, as the result of the battery offense, had been sentenced to $276 restitution, $120 fine and six months unsupervised probation. The bench warrant followed in December 1988 reflecting a remaining balance of $96 unpaid on the restitution and fine. The next event was this occurrence in May 1989. At the scene, appellant’s brother gave appellant the necessary money to settle the claim balance which was tendered to the arresting peace officer who stated that appellant had to be arrested, taken to the police station and booked in before he could tender that balance for satisfaction of the previous fine. The warrant itself provided “Defendant is to be admitted to bail in the sum of $96.” At the scene, appellant became overtly and admittedly upset about being arrested for the $96.

In his appeal, appellant asks: “Is a municipal police officer engaged in the lawful performance of his official duties when executing a municipal bench warrant outside the city limits?” ²

Our standard of review requires us to conduct a plenary review of the choice, interpretation, construction, and application of the controlling legal precepts. ANR Production Company v. Wyoming Oil and Gas Conservation Com’n., 800 P.2d 492 (Wyo.1990).

Appellant argues the Wyoming statutes and court rules do not authorize a municipal peace officer to arrest under a municipal bench warrant outside the municipal limits which is the entity by which the officer is employed. In short, appellant contends that he should not have been convicted for interference with a peace officer because the municipal police were outside their jurisdiction when they arrested him. He first argues that the jurisdiction of Wyoming municipal police to execute municipal bench warrants is limited to the municipal borders. He then argues that for a peace officer to be interfered with, the peace officer must first be engaged in the “lawful performance of his official duties.” W.S. 6-5-204(a). Because the legislature and judiciary have limited the jurisdiction of municipal police to the municipal borders, an extraterritorial arrest cannot be considered “lawful performance.” Thus, appellant contends, the Mooreroft municipal police were not engaged in the “lawful performance” of their official duties when they arrested him outside their jurisdiction. We agree.

The legislature and the judiciary³ have delineated the jurisdiction of municipal judges and municipal peace officers. Pursuant to W.R.Cr.P.J.C. 4(a), municipal judges shall issue arrest warrants “to any officer authorized by law to execute it.” Those “officers” authorized to execute arrest warrants are labeled “peace officers” under W.S. 7-2-101(a)(iv). Accordingly, “[a] peace officer may arrest a person when * * * [he] has a warrant commanding that the person be arrested * * *.” W.S. 7-2-102(a)(i). Included within the statutory definition of “peace officers” are “[a]ny duly authorized member of a municipal police force * * ⅜.” W.S. 7-2-101(a)(iv)(B). In the case of municipal police executing municipal bench warrants, W.R.Cr.P.J.C. 4(c)(2) further provides that “[t]he warrant may be executed or the summons may be served at any place within their territorial jurisdictions when issued by municipal judges * * ⁴ Thus, reading the statutes and rules together, municipal police must execute municipal arrest warrants within the “territorial jurisdiction” of the municipal judge who issued the warrant.

In response, the State argues our holding in Roberts v. State, 711 P.2d 1131 (Wyo.1985) controls and, therefore, we should uphold appellant’s conviction. We disagree. In Roberts, municipal police, relying on a warrant, arrested an individual within the municipal limits. We began our analysis, in Roberts, by stating that one of the statutory (official) duties of peace officers is to execute arrest warrants. We then reasoned that a peace officer is “lawfully performing his official duty when he makes an arrest even if it later appears that the arrest warrant is invalid. A person who resists such an arrest can be convicted under our resisting arrest statute.” Id. at 1134.

The rationale of Roberts is that police officers — acting in good faith — should not be required to determine the validity of a bench warrant before fulfilling their statutory duty of executing it. Neither the holding nor the rationale behind Roberts is implicated in this case. This case does not. involve municipal peace officers making sometimes difficult judgment calls as to a particular warrant’s validity. Rather, this case involves a clear line of demarcation— the jurisdiction of the municipal police force. Under the statutes and court rules, the municipal police force’s authority to arrest individuals pursuant to municipal bench warrants simply does not extend beyond the municipal boundaries.⁵ Cf. Ratona v. City of Cheyenne, 686 F.Supp. 287, 291 (D.Wyo.1988) (“The municipal court commissioner is not a justice and hence an arrest warrant issued under his authority is a nullity.”)

In result, the present Wyoming statutory and rule structure for the city officer enforcement of the municipal warrant retains confined arrest jurisdiction of the municipal peace officer to the long established historical common law rule. The rule is directly and explicitly stated with an extended history and application:

In the absence of statute, the power of a sheriff or officer is limited to his own county, and he cannot execute a writ out of his own county. Outside his county, his authority to make arrests is no greater than that of a private citizen.

5 Am.Jur.2d, Arrest § 19 at 710 (1962) (footnote omitted). The case of Ex parte Crawford, 148 Wash. 265, 268 P. 871 (1928) serves to provide the historical and since continued definition of the law.

It is elementary law that, in the absence of constitutional or statutory authority, a warrant of arrest cannot be lawfully executed by arresting the accused beyond the territorial jurisdiction of the justice or court issuing it. 1 Chitty’s Criminal Law, 48; 1 Bishop’s New Criminal Procedure (2d Ed.) p. 140.

Id. 268 P. at 872.

Annotation, Territorial Extent of Power to Arrest Under a Warrant, 61 A.L.R. 377, 377 (1929), which follows Ex parte Crawford in the volume, quotes 2 R.C.L. 469:

Generally speaking it may be said that “a public officer appointed as a conservator of the peace for a particular county or municipality ... has no official power to apprehend offenders beyond the boundaries of the county or district for which he has been appointed [whether he acts under color or of a warrant or without one].”

The annotation cites a history of cases commencing with Charley's Case, 1 Salk. 176, 91 Eng. Reprint 161 (1699). Other cases to be found include an early American case, Lawson v. Buzines, 3 Harr. (Del.) 416 (1842) (cited in Newburn v. Durham, 88 Tex. 288, 31 S.W. 195 (1895)), where the rule is stated. Newburn does recognize a statutory extension of arrest authority for prevention and suppression. See likewise City of Fairborn v. Munkus, 28 Ohio St.2d 207, 277 N.E.2d 227 (1971), which, after citing the common law rule, recognizes a statutory extension of expanded jurisdiction. Following or recognizing the common law rule, see Zanks v. Fluckiger, 22 Conn.Sup. 311, 171 A.2d 86 (1961); State v. Carson, 374 So.2d 621 (Fla.App.1979); Drake v. Keeling, 230 Iowa 1038, 299 N.W. 919 (1941); State ex rel. Malone v. Dreiling, 136 Kan. 78, 12 P.2d 735 (1932); State v. Harnum, 143 Me. 133, 56 A.2d 449 (1947); and Irwin v. State, Department of Motor Vehicles, 10 Wash.App. 369, 517 P.2d 619 (1974). Wyoming has no statute nor has this court provided a rule which serves to abrogate the common law rule of confined territorial jurisdiction for municipal peace officers.

In summary, we hold that, under the circumstances presented by this case, the municipal peace officers had no authority to execute the municipal arrest warrant outside the boundaries of the municipality by which they were employed.

Appellant’s conviction for interference with a municipal peace officer is -reversed.

1 . "A person commits a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both, if he knowingly obstructs, impedes or interferes with or resists arrest by a peace officer while engaged in the lawful performance of his official duties.” W.S. 6-5-204(a).

The propriety of the charge and method of assessment for the indigent to pay the cost of court appointed counsel is not presented as an appellate issue. See W.S. 7-6-106. The transcript reflected that the appellant was required to "reimburse the county and the state attorney’s fees in the amount of $850.”

However, the judgment and sentence provided:

2. The defendant shall reimburse the County and State in the amount of $850.00 for the cost of his court-appointed attorney to be paid to the Clerk of District Court, P.O. Box 904, Sundance, WY 82729.

No basis for the computed amount was included in this record.

2 .This appeal involves neither fresh pursuit, State v. Tillman, 208 Kan. 954, 494 P.2d 1178 (1972); People v. Welfel, 29 Misc.2d 62, 212 N.Y.S.2d 650 (1961); cf. Appeal of Cowell, 243 Pa.Super. 177, 364 A.2d 718 (1976); nor contention of a citizen's arrest when the officer acts without authority when beyond his jurisdiction, Davis v. United States, 409 F.2d 1095 (5th Cir.1969); State v. Crum, 323 So.2d 673 (Fla.App.1975); Stevenson v. State, 287 Md. 504, 413 A.2d 1340 (1980); State v. Harp, 13 Wash.App. 239, 534 P.2d 842 (1975); or even without any warrant, Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990); Annotation, Validity, In State Criminal Trial, of Arrest Without Warrant by Identified Peace Officer Outside of Jurisdiction, When Not in Fresh Pursuit, 34 A.L.R.4th 328 (1984).

There is a separate subject that develops in cases of the officer’s injury or a civil suit for false arrest where the arrest occurs outside of the municipal jurisdiction. Street v. Cherba, 662 F.2d 1037 (4th Cir.1981); Drake v. Keeling, 230 Iowa 1038, 299 N.W. 919 (1941); Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907 (1942).

3 . The Wyoming Supreme Court in accordance with the constitution, the statutes of the State of Wyoming, and under its plenary powers, has promulgated and adopted:

A A A A A A

Wyoming Rules of Criminal Procedure for Justice Courts[.]

W.R.Cr.P.J.C. at 263.

4 . W.R.Cr.P.J.C. 4(c)(2) goes on to provide that the warrant may be executed “at any place within the State of Wyoming when issued by the justices of the peace." The legislature has also granted statewide jurisdiction to county and justice of the peace courts, but not to municipal courts. “A warrant or summons issued by any justice of the peace court or county court based upon a complaint or information charging any criminal offense may be executed or served at any place within the jurisdiction of the state of Wyoming." W.S. 7-8-103(a).

5 . We note that the municipal bench warrant issued for appellant is addressed to the municipal police, and to "any peace officer in the State of Wyoming." The issue is not presented for statutory interpretation to determine whether a deputy sheriff or other "peace officer” while acting within established jurisdiction could have lawfully made this arrest. See People v. Rowe, 95 Mich.App. 204, 289 N.W.2d 915 (1980).