By David Daggett
This month’s Blog comes courtesy of a question posed by an officer of a Maryland municipal police agency: In a situation not involving “hot pursuit”, can a law enforcement officer stop and detain a suspected impaired driver while outside that officer’s jurisdiction?
A good place to begin is with Criminal Procedure Article §2-201 of the Maryland Annotated Code, which reads, in part, as follows:
(a) Scope of section. – This section does not apply to an employee of the Department of State Police to whom the Secretary of State Police assigns the powers contained in §2-412 of the Public Safety Article.
(b) In general. – (1) Subject to the limitations of paragraph (3) of this subsection a police officer may make arrests, conduct investigations, and otherwise enforce the laws of the State throughout the State without limitations as to jurisdiction.
(2) This section does not authorize a police officer who acts under the authority granted by this section to enforce the Maryland Vehicle Law beyond the police officer’s sworn jurisdiction, unless the officer is acting under a mutual aid agreement authorized under §2-105 of this subtitle.
(3) A police officer may exercise the powers granted by this section when:
(i)1. the police officer is participating in a joint investigation with officials from another state, federal or local law enforcement unit, at least one of which has local jurisdiction;
- the police officer is rendering assistance to another police officer;
- the police officer is acting at the request of a police officer or State Police officer; or
- An emergency exists; and
(ii) the police officer is acting in accordance with regulations adopted by the police officer’s employing unit to carry out this section.
(4) The powers granted by this section are in addition to the powers granted by §§ 5-801, 5-802, 5-807, 5-808, and 5-901 of the Criminal Law Article and to the powers of fresh pursuit granted by Subtitle 3 of this title.
(d) Immunities and exemptions. – A police officer who acts under the authority granted by this section:
(1) has all the immunities from liability and exemptions to which the police officer is otherwise entitled;
“Emergency” is defined in CP §2-101(b) as a “sudden or unexpected happening or unforeseen combination of circumstances that calls for immediate action to protect the health, safety, welfare, or property of a person from actual or threatened harm or from an unlawful act.”
In the case of Boston v. Baltimore County Police Dep’t, 357 Md. 393 (1999), the Maryland Court of Appeals addressed a case almost squarely on point. Boston involved a Hearing Board matter in which the Appellant was sanctioned with the loss of five days of leave as a result of his pursuit of a vehicle for a traffic violation committed outside his jurisdiction.
Officer Boston, a sworn member of the Baltimore County Police Department, was driving his marked police car at 2:00 a.m., cutting through Baltimore City as a shortcut from one part of the county to another while responding to a call. While at a stop light on Wikens Avenue in the City, a car came through a red light, nearly collided with Ofc. Boston, made a sharp left turn, and proceeded east on Wilkens Avenue, initially swaying back and forth. Believing that the driver might be intoxicated, Boston turned on his flashing lights and pursued the vehicle for the purpose of making a traffic stop. Although there were no more erratic or evasive moves by the driver of the car, it did not stop. In his testimony before the hearing board, Officer Boston indicated that the vehicle was not being driven in an unsafe manner. At that point, several City police vehicles joined in the pursuit and the pursued vehicle increased its speed to 50-60 MPH. Ofc. Boston ended his pursuit at that time. A short while later, the vehicle went through a stop sign and collided with a taxicab, killing the passenger. The driver was found to have both cocaine and an over the legal limit level of alcohol in his blood. The crash occurred about 3 ½ miles inside the City. Officer Boston had pursued the vehicle for appx. five minutes.
At his administrative hearing, Officer Boston relied upon, among other things, the “emergency” exception to CP §2-201. He argued that the “emergency” language in the statute (then Art 27 §594B(3)) was an exception to the prohibition against enforcing the motor vehicle laws outside an officer’s home jurisdiction. Unfortunately, not only did the Court of Appeals determine that the facts of the case did not rise to the level of an emergency, it also made clear that – based upon a review of the statute’s legislative history – that the emergency exception did not apply to violations of the motor vehicle code:
The prohibition against enforcing the motor vehicle laws is free standing and subject to no exceptions. Under no circumstance may an officer exercise the authority granted in §594B(1) [CP §2-102] to enforce the motor vehicle laws outside of his or her home jurisdiction. Boston @ p. 404
The Court made it clear that “the emergency provision in the statute, along with the other three circumstances listed, are not exceptions to the prohibition against the motor vehicle laws, thereby allowing enforcement of those laws in those situations, but rather define the circumstances in which the extra-territorial authority to enforce laws other than motor vehicle laws may be exercised. “ id @ 404
The Court also addressed the question of whether this situation rose to the level of an “emergency” and determined that it did not. The Court stated that when Officer Boston commenced his pursuit, all he knew was that the driver had run a red light, nearly collided with him, and, after making a sharp left turn, briefly swayed. The Court stated that while the vehicle merited being stopped for traffic infractions (though not by Officer Boston), the actions of the driver did not require a finding, as a matter of law, that driver’s actions constituted an “emergency” as it is defined in the code.
Admissibility of Evidence
The good news is that, according to the Maryland Court of Special Appeals, the remedy for an alleged violation of CP 2-102 is not the suppression of evidence.
Miller v. State, 151 Md. App. 235 (2003) was a Maryland Court of Appeals case involving two Baltimore County police officers who observed a vehicle being driven by a man, both the vehicle and the man matching the description of a subject suspected of having committed rapes in both Baltimore County and Baltimore City. The detectives had gone to a specific location in Baltimore City, seeking to find the suspect. When he was spotted, he had a female passenger in the vehicle. He was then stopped and arrested. The defense sought to suppress the evidence recovered in the resulting stop and arrest on the theory that these facts did not constitute an “emergency” and that none of the other requirements of CP §2-102 existed, therefore making the stop and search unlawful.
The CoSA in Miller opined that the detectives had reason to believe that a dangerous and violent felon, who had just allegedly raped a twelve-year-old girl, might be only a short distance from where  they were. In addition, the vehicle was registered to a female, which raised questions regarding the safety of the female passenger. Under these circumstances, the CoSA determined that it was imperative to act quickly to protect the public, and possibly  the female passenger, from a violent sexual predator. The Court quoted from Swain v. State, 50 Md. App. 29, 41 (1981), “the greater the danger to the public safety, the more important it is to apprehend the suspect quickly.”
The Court then went one step farther and held that:
[e]ven if the officers did not have authority under § 2-102 of the Maryland Criminal Procedure Article to arrest appellant, the court had no legal basis upon which to suppress the evidence obtained from that arrest. Maryland does not have an independent exclusionary rule, Howell v. State, 60 Md. App. 463, 466, (1984), nor does § 2-102 create one.
That section does not require the suppression of any evidence obtained in violation of it. And we cannot supply what the legislature has omitted, without, in the words of Justice Felix Frankfurter, “adding a colonial wing to a gothic cathedral.” …. Indeed, § 2-102 was intended not to control or limit police activity, but to enhance and expand it. Its purpose, as stated in the legislative summary of its senate progenitor, was to “foster greater efficiency and cooperation among law enforcement officers in fighting crime on a multi- jurisdictional level.” …We therefore conclude that § 2-102 does not require, by either its terms or its history, the suppression of evidence as a sanction for the failure to comply with its provisions. @ 246, 247
A police officer making an arrest outside his jurisdiction – if not acting in compliance with CP §2-102 – is limited, in the absence of statutory authority expanding it, to the confines of the geographical unit of which he is an officer. An officer acting outside his sworn jurisdiction does so as a private citizen, and may only act to the extent that the law of the place of arrest authorizes such individuals to do so. Davis v. United States, 409 F. 2d 1095 (5th Cir. 1969.)
In Maryland a private person has authority to arrest without a warrant only in very limited circumstances: a.) when a felony is being committed in the officer’s presence; b.) when a felony has in fact been committed, whether or not in the officer’s presence, if the arrester has probable cause to believe the person he arrests has committed it; or c.) a misdemeanor is being committed in the presence or view of the arrester which amounts to a breach of the peace. Kauffman, The Law of Arrest in Maryland, 5 Md. L. Rev. 125, 155 (1941); 49 Op. Atty. Gen. 11 (1964). Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643 (1970).
Since DUI is a misdemeanor, it must be determined whether the charge of impaired driving constitutes a breach of the peace. There is very limited nationwide case law on this issue, and what I was able to find would seem to indicate somewhat of a split of authority:
State v. Kenneth, 2015 N.M. Unpub. Lexis 408 – P14 – “citizens’ arrests for DWI are not legal.” New Mexico;
State v. Slayton, 2009 – NMSC – 054 “In light of Section 66-8-124(A) and the surrounding provisions of the Motor Vehicle Code, all cases suggesting “that a private citizen . . . may make a citizen’s arrest for suspected violations of motor vehicle laws,” were overruled. New Mexico;
State v. Verkerk, 229 N.C. App 416 (2013) – “nothing  in N.C. Gen. Stat § 15A-404 authorizes private citizens to conduct investigatory stops based on “reasonable articulable suspicion” for the purpose of ascertaining whether a criminal offense has been committed. At the time that Lieutenant Shatley stopped Defendant’s vehicle, he did not know whether she was an impaired driver or whether her erratic driving stemmed from an entirely different cause, such as illness or mechanical difficulties.  Thus, the record clearly shows that Lieutenant Shatley was, at most, conducting what amounted to an investigative stop rather than detaining Defendant as authorized by N.C. Gen. Stat. § 15A-404.” North Carolina;
State v. Devlin, 745 S.W. 2d 850 (1988) – With limited exception, when a law enforcement officer leaves his territorial jurisdiction, his  status is transformed into that of a private citizen. A private citizen may arrest on a showing of the commission of a felony and reasonable grounds to suspect the arrested party, to prevent an affray or breach of the peace, and for a misdemeanor if authorized by statute. No authority can be found granting private citizens the privilege to stop and detain persons believed to have committed ordinance violations or traffic offenses, and the wisdom of recognizing such a privilege is seriously doubted. Delegating to private citizens the authority to investigate and arrest for such offense would invite more breaches of the peace than the number hoped to be prevented. Missouri;
On the other hand…
Kunkel v. State, 46 S.W. 3d 328 (2001) – We find that the [officer’s] testimony regarding such conduct was more than sufficient to support the trial court’s determination that Kunkel committed a breach of the peace and that the citizen’s arrest was therefore proper. By its very nature, the conduct observed by Officer Pittman, and the crime of which it is symptomatic, may place others on or near the roadway in imminent danger of harm. Texas;
State v. Grijalva, 2015 Ariz. App. Unpub., Lexis 194 – A Border Patrol agent, however, may act as a private person and “make a lawful citizen’s arrest pursuant to [A.R.S.] § 13-3884.” State v. Garcia-Navarro, 224 Ariz. 38, ¶ 12, 226 P.3d 407, 410 (App. 2010). Section 13-3884(1) allows a private person to make an arrest “[w]hen the person to be arrested has in his presence committed a misdemeanor amounting to a breach of the peace.” Under Arizona law, DUI is such an offense. State v. Chavez, 208 Ariz. 606, ¶ 16, 96 P.3d 1093, 1097 (App. 2004). Arizona.
For the final word on the issue we return to Boston v. Baltimore County Police, 357 Md. 343 (1999):
Boston’s (Appellants) final argument is that his conduct was justified as a “citizen’s arrest” — that he had the common law right that any citizen has to effect an arrest when observing the commission of a misdemeanor that amounts to a breach of the peace…  [  the] fact is that Boston was not acting, or purporting to act, in the capacity of a private citizen. He was a police officer on active duty, driving a marked police car with overhead lights flashing and siren intermittently blaring. He remained in official contact with his dispatcher and was attempting, as a police officer, to stop and detain the driver. Quite apart from whether any stop, had it been effected, could have been justified under the law of arrest as a citizen’s arrest, the effort to make the stop constituted the extra-territorial enforcement of the motor vehicle laws by a police officer, which Baltimore County police regulations, in conformance with State law, forbid.
So while not directly addressing the issue of whether a DUI constitutes a misdemeanor amounting to a breach of the public peace, the Court seemed to indicate that anything short of the officer being in plain clothes and driving his own personal vehicle would not give rise to a successful citizen’s arrest argument.
Note of Caution: It would also appear that the officer making the initial stop outside his jurisdiction – if not in compliance with CP §2-102 – may be subject to civil liability as a result of any injuries sustained by the driver or other occupants of the stopped vehicle as a result of acting outside the limits of his or her jurisdiction. Subsection (d) of CP §2-102 states that a police officer who acts under the authority of §2-102 has all the immunities and liabilities as a State Police officer. By implication, that would seem to indicate that if not in compliance, then immunity may not exist.
It is strongly recommended that officers in municipal departments consult with their departments’ legal counsel (or that of the Maryland Chiefs of Police Association) regarding this subject. This type scenario is clearly a double-edged sword: On one hand, officers could potentially face civil (and possibly criminal) liability for conducting an extra-territorial traffic stop based upon a violation of the Maryland Vehicle code. On the other hand, what are the potential ramifications (real or practical) if a clearly dangerous and erratic driver is observed by an out of jurisdiction officer and no attempt is made to detain him (short of reporting the observations), especially if the impaired driver goes on to kill or seriously injure another?
The Court of Appeals in Boston relied extensively on the legislative history of CP §2-102 in fashioning its opinion. In it, the Court indicated that it was primarily the opposition by the Maryland Chiefs of Police Association that limited out-of-jurisdiction motor vehicle stops. The legislative history the Court relied on was from 1997 and quoted the police chief’s association’s testimony at the bill hearing:
“When the officer is outside his jurisdiction, he may also be outside of his department’s radio coverage, as well. If this were to occur, the officer would be without the ability to communicate with other officers where the pursuit was occurring. Therefore, the out-of-jurisdiction officer would be without ‘backup’ during the incident.” @ p. 398
Given the advancement in technology and new and upgraded police dispatch capabilities it would seem that these concerns are no longer present. Perhaps it is time to look into amending the statute to allow for motor vehicle stops outside an officer’s jurisdiction in those situations that pose a danger to the public, namely, driving while impaired. It would be very hard to justify to the family members of someone killed by a drunk driver that a police officer observed the drunk driver prior to the collision that took the life of a loved one, but were prohibited by statute from acting on it short of calling it in to another department.
AS ALWAYS, PLEASE CONSULT YOUR DEPARTMENTS LEGAL COUNSEL OR WITH YOUR LOCAL STATE’S ATTORNEYS OFFICE WITH ANY SPECIFIC QUESTIONS REGARDING THIS SUBJECT.