State v. Tingle ( 1991 )

Boslaugh, J.,

dissenting.

I dissent from that part of the majority opinion holding that Neb. Rev. Stat. § 17-118 (Cum. Supp. 1990) does not empower police officers employed by cities of the second class to stop and arrest suspected misdemeanants outside the city limits but within the county.

The jurisdiction of Nebraska police officers employed by cities of the second class to arrest criminal suspects is set out in § 17-118:

The police officers of the city shall have the power to arrest all offenders against the laws of the state or of the city, by day or by night, in the same manner as the sheriff and to keep such offenders in the city prison or other place to prevent their escape, until trial can be had before the proper officer.

(Emphasis supplied.) Pursuant to Neb. Rev. Stat. § 23-1710 (Reissue 1987), it is the duty of the county sheriff “to preserve the peace in his county, to ferret out crime, to apprehend and arrest all criminals, and insofar as it is within his power, to secure evidence of all crimes committed in his county, and present the same to the county attorney and the grand jury . . . .” (Emphasis supplied.) Neb. Rev. Stat. § 29-404.02(2) (Reissue 1989) provides that a peace officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed a misdemeanor,

and the officer has reasonable cause to believe that such person either (a) will not be apprehended unless immediately arrested, (b) may cause injury to himself or herself or others or damage to property unless immediately arrested, (c) may destroy or conceal evidence of the commission of such misdemeanor, or (d) has committed a misdemeanor in the presence of the officer.

Neb. Rev. Stat. § 49-801(15) (Reissue 1988) provides that city police officers are “peace officers.”

The majority’s position is in conflict with this court’s decision in State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129 (1967), cert. denied 392 U.S. 944, 88 S. Ct. 2288, 20 L. Ed. 2d 1406 (1968), that a city police officer had the authority to stop a suspected burglar “just across and outside the city limits” of Blair, Nebraska, pursuant to § 17-118. Significantly, the Carpenter court did not discuss the issue of the officer’s geographical jurisdiction to detain a suspected felon in conjunction with “fresh pursuit,” but based its decision on the provisions of § 17-118. See, also, Henning v. City of Hebron, 186 Neb. 381, 183 N.W.2d 756 (1971), a workers’ compensation case, holding that under § 17-118, a police officer of a city of the second class has the same powers and duties as a sheriff or constable and has the duty to apprehend and arrest felons and disturbers of the peace and to keep and preserve the peace within the whole area of his county.

The argument presented by the defendant in this case was similar to that considered and rejected in Angel v. State, 740 S.W.2d 727 (Tex. Crim. App. 1987). In Angel v. State, the defendant was arrested outside the city limits of Tomball, Harris County, Texas, by a Tomball city police officer after two officers saw him driving a piece of heavy road-paving equipment in the dark, without lights, on a public road. The officers were on routine patrol along the eastern edge of Tomball and were patrolling outside the city limits, but inside Harris County, when they stopped Angel. They noticed that the tractor Angel was driving appeared to have been “hot-wired,” determined that there were two warrants issued against Angel in another county for speeding and failure to appear, and arrested Angel on the outstanding warrants and for. investigation of possible theft. Angel was subsequently convicted of stealing the road-paving equipment.

Before trial, Angel moved to suppress all evidence seized as a result of his detention, arguing, in part, that the Tomball police officers acted outside their territorial jurisdiction by arresting him outside the Tomball city limits. The applicable Texas statutes provided that “ ‘[a]ny peace officer is authorized to arrest without warrant any person found committing a violation of any provision of [the Uniform Act Regulating Traffic on Highways],’ ”'and that “ ‘[a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.’ ” (Emphasis in original.) 740 S.W.2d at 731. City police officers were “peace officers” under Texas law. Id. The Texas court found that it was against the law to drive road-paving equipment, at night without headlights, that the Tomball police officers had probable cause to believe that a traffic offense had occurred within their view, and that the officers were authorized by statute to arrest Angel without a warrant.

Regarding the issue of geographical jurisdiction, the Texas court observed that “statutes which confer upon a peace officer the authority to act may not necessarily define the geographic scope of that authority,” id. at 732, and held that the legislative expression of a peace officer’s jurisdiction must be found in some other statute or be controlled by common law. In this regard, Tex. Rev. Civ. Stat. Ann. art. 998 provided:

“The city or town council in any city or town in this State... may, by ordinance, provide for the appointment, term of office and qualifications of such police officers as may be deemed necessary.... Such officers shall have like powers, rights, authority and jurisdiction as are by said title vested in city marshals. Such police officers may serve all process issuing out of a corporation court anywhere in the county in which the city, town or village is situated.

(Emphasis in original.) 740 S.W.2d at 732 n.13. Tex. Rev. Civ. Stat. Ann. art. 999 provided that “ ‘[i]n the prevention and suppression of crime and arrest of offenders, [the city marshal] shall have, possess and execute like power, authority, and jurisdiction as the sheriff.’ ” (Emphasis omitted.) 740 S.W.2d at 733 n.13. Finally, Tex. Crim. Proc. Code Ann. art. 2.17 provided that “ ‘[e]ach sheriff shall be a conservator of the peace in his county ....’” (Emphasis in original.) 740 S.W.2d at 733.

A divided court held that the term “jurisdiction” in the context of articles 998 and 999 referred to the geographic scope of a peace officer’s power, rights, and authority, and that those statutes granted city marshals and city police officers countywide jurisdiction to arrest offenders.

We have held that the Legislature is presumed to have intended every statutory provision to have a meaning and that the Supreme Court will give effect, if possible, to every word, clause, and sentence thereof. See Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173 (1985). See, also, Canas v. Maryland Cas. Co., 236 Neb. 164, 459 N.W.2d 533 (1990). The majority’s construction of § 17-118 fails to give reasonable effect to the statute in its entirety and is merely repetitive of § 29-404.02, pursuant to which city police officers are specifically authorized to arrest suspected misdemeanants without a warrant under certain circumstances.

I would hold that the clause “in the same manner as the sheriff” found in § 17-118 gives a city police officer the same countywide jurisdiction as a sheriff to stop and arrest persons within the county and that the trial court did not err in failing to suppress evidence obtained after the defendant was arrested.

Hastings, C. J., and Grant, J., join in this dissent.