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COURT OF APPEALS DECISION DATED AND FILED June 22, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� APPEAL from judgments of the circuit court for Winnebago County:� Robert hawley, Judge.� Reversed.
�1������� REILLY, J.[1]�� The State of Wisconsin appeals from a decision of the circuit court dismissing the operating a motor vehicle while intoxicated (OWI) and the operating with a prohibited alcohol concentration (PAC) charges against Blair T. Davis.� The circuit court dismissed the charges after it found that the UW-Oshkosh police officers were not in �fresh pursuit� of Davis and thus did not have the authority to arrest Davis outside of campus property.� We hold that the campus police did have the authority to arrest Davis off-campus and thus reverse the circuit court.
FACTS
�2������� On the evening of September 18, 2010, UW-Oshkosh Police Officer Trent Morgan was on foot patrol on the second floor of the �student success center� when he noticed Davis take a can of beer out of his parked car and apparently sell it to someone who appeared to be between eighteen and twenty-one years old.� The sale occurred on a street bordering the UW-Oshkosh campus.� The record seems to indicate that Morgan then left the student success center and confronted the individual who purchased the beer.� When Morgan indentified the buyer as an eighteen year old, Morgan gave him a ticket for underage drinking.
�3������� At some point�the record is not clear when�Morgan informed Sergeant Donald Kernler of the UW-Oshkosh police department that Davis had driven away.� Kernler pursued Davis and eventually pulled him over.� Davis was subsequently arrested for OWI, and eventually charged with OWI, PAC, and providing alcohol to an underage person.�
�4������� Davis filed a motion to suppress the evidence and dismiss the
charges on the grounds that the sale of alcohol and the subsequent stop of
Davis did not occur within the officers� jurisdiction.� As the arrest occurred off UW-Oshkosh�s
campus, Davis argued that the UW-Oshkosh police did not have authority to
arrest him, regardless of whether the officers were in �fresh pursuit� or
whether they were making a �citizen�s arrest.��
�5������� The fresh pursuit doctrine states that any Wisconsin peace officer may pursue and arrest a suspect �anywhere in the state� for a violation of any law or ordinance that the officer is authorized to enforce as long as the officer is in �fresh pursuit.�� Wis. Stat. � 175.40(2).� To determine whether an officer was in fresh pursuit, courts must consider three criteria:� (1) the officer must have acted without unnecessary delay; (2) the pursuit must have been continuous and uninterrupted, although there need not have been continuous surveillance of the suspect; and (3) the time between the commission of the crime and the commencement of the pursuit is important; the greater the length of time, the less likely it is that a court will find the officer was in fresh pursuit.� State v. Haynes, 2001 WI App 266, �6, 248 Wis. 2d 724, 638 N.W.2d 82.� The fresh pursuit doctrine therefore applies when an officer witnesses a crime in his or her jurisdiction and follows a suspect into another jurisdiction.�
�6������� A citizen�s arrest, however, occurs when an officer acts outside of his or her jurisdiction, such as when the officer is in another municipality.� See City of Waukesha v. Gorz, 166 Wis. 2d 243, 245-46, 479 N.W.2d 221 (Ct. App. 1991).� When the officer is outside of his or her jurisdiction and witnesses �a felony or a serious misdemeanor affecting a breach of the peace,� the officer is entitled to make a citizen�s arrest.� Id. at 246-47.� Misdemeanors that amount to a breach of the peace are �acts which involve, threaten, or incite violence.�� Radloff v. National Food Stores, Inc., 20 Wis. 2d 224, 237b, 123 N.W.2d 570, on motion for rehearing (1963).� Drunk driving is considered a breach of the peace but theft is not.� Compare Gorz, 166 Wis. 2d at 247, with Radloff, 20 Wis. 2d at 237b.� The Wisconsin Supreme Court has, however, noted that one state�s highest court held that the illegal sale of alcohol was a breach of the peace.� See Radloff, 20 Wis. 2d at 237b (citing State ex rel. Thompson v. Reichman, 188 S.W. 225, 229 (Tenn. 1916)).
�7������� The circuit court dismissed the OWI and PAC charges after it concluded that the sale of alcohol to a minor did not constitute an �incitement of violence.�� The State appeals.
STANDARD OF REVIEW
�8������� The question of whether the UW-Oshkosh police officers were engaged in fresh pursuit or whether they made a lawful citizen�s arrest is a question of law that we review de novo.� See City of Brookfield v. Collar, 148 Wis. 2d 839, 841-42, 436 N.W.2d 911 (Ct. App. 1989); Gorz, 166 Wis. 2d at 245.�
DISCUSSION
�9������� This case comes down to whether Davis�s arrest was the result of fresh pursuit or a citizen�s arrest by the UW-Oshkosh police department.� If Davis sold the beer within the jurisdiction of the UW-Oshkosh police department, we would apply the fresh pursuit doctrine.� If the sale occurred outside of the campus police�s jurisdiction, we would apply a citizen�s arrest analysis.� The circuit court, unfortunately, did not decide whether the sale occurred within the jurisdiction of the campus police.[2]� We therefore must examine whether the arrest was lawful under either the fresh pursuit doctrine or a citizen�s arrest analysis.� As we hold that the UW-Oshkosh police officers acted appropriately under either test, we reverse the decision of the circuit court.[3]�
�10����� Assuming Davis sold the beer within the UW-Oshkosh police department�s jurisdiction, we examine three criteria to determine whether his arrest was the result of fresh pursuit by the campus police: �(1) did the officers act without unnecessary delay?; (2) was the pursuit continuous and uninterrupted, bearing in mind that there need not have been continuous surveillance of Davis?; and (3) was the time between the sale of beer and the commencement of the pursuit reasonable?� See Haynes, 248 Wis. 2d 724, �6.� We hold that the officers complied with the fresh pursuit doctrine requirements.� Morgan informed Kernler that Davis had driven away.� Kernler then pursued Davis and eventually pulled him over.� While the record does not provide an exact time line of the events, we see nothing to indicate that Morgan and Kernler acted with �unnecessary delay� or that the time between Davis�s sale of the beer and the pursuit by Kernler was �unreasonable.�� And contrary to Davis�s argument, it does not matter that Morgan witnessed the sale but Kernler pursued�Haynes specifically states that the fresh pursuit doctrine does not require continuous surveillance of the suspect.� See id.� Furthermore, it is irrelevant that the initial pursuit of Davis was for selling beer to an underage person but that Davis was subsequently arrested for OWI and PAC.� An officer can engage in fresh pursuit for one crime and later investigate a separate crime if there are �additional suspicious factors.�� Id., ��11-12.� As Davis smelled of intoxicants and admitted to Kernler that he was drinking, Kernler was justified in conducting a new investigation for OWI.� We hold that Morgan and Kernler were in fresh pursuit.� �
�11����� If the sale of beer occurred outside of the UW-Oshkosh police department�s jurisdiction, we hold that the officers had authority to make a citizen�s arrest.� An officer can make a lawful citizen�s arrest when he or she witnesses �a felony or a serious misdemeanor affecting a breach of the peace.�� Gorz, 166 Wis. 2d at 246-47.� Any misdemeanor that involves, threatens, or incites violence amounts to a breach of the peace.� Radloff, 20 Wis. 2d at 237b.� We hold that Davis�s sale of beer to a minor falls within this category.� Providing alcohol to a minor late in the evening on a college campus threatens public order.� As our supreme court has noted, another state has held that the illegal sale of alcohol is a breach of the peace.� See id. (citing Reichman, 188 S.W. 225, 229). �A citizen�s arrest was appropriate.
CONCLUSION
�12����� As we hold that the UW-Oshkosh police department had the authority to arrest Davis, we reverse the circuit court�s decision to dismiss the OWI and PAC charges.�
����������� By the Court.�Judgments reversed.�
����������� This opinion will not be
published.� See Wis. Stat. Rule
809.23(1)(b)4.
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[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(f) (2009-10).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
[2]� The sale occurred on a street bordering the UW-Oshkosh campus.� Wisconsin Stat. � 175.40(4) extends the boundaries of a peace officer�s jurisdiction to surrounding highways.� As the circuit court did not actually determine where the beer was sold, we cannot ascertain whether the UW-Oshkosh police officers exercised their authority under � 175.40(4).�
[3] We note that the circuit court confused the fresh pursuit doctrine with a citizen�s arrest analysis.� The fresh pursuit doctrine does not require �incitement of violence� or threats �involving security.�� That is the test for a citizen�s arrest.� See City of Waukesha v. Gorz, 166 Wis. 2d 243, 245-46, 479 N.W.2d 221 (Ct. App. 1991).