Extended Jurisdiction of Law Enforcement Officers

by H. Troy Nicks, J.D., Instructor, Central Virginia Criminal Justice Academy, Email: troy.nicks@lynchburgva.gov

 

The term “jurisdiction” has several legal meanings, but for police officers it usually means territory or location.

This article refers to the territorial limits of town, city or county boundaries as an officer’s “primary” jurisdiction, beyond which an officer is empowered to act in a number of situations. The same applies to campus police officers relative to their institution’s property boundaries. Courts sometimes use the term “extraterritorial” to refer generally to areas beyond an officer’s primary jurisdiction. We’ll use the term “extended” to refer to those areas.

Enforcement scenarios occurring beyond an officer’s primary jurisdiction may arise on- or off-duty, in a police vehicle or not, and may even involve an officer’s family being present. As with many enforcement situations, legal and tactical considerations may combine in a rapidly evolving mix. So, it is important for officers to have a working knowledge of laws affecting extended jurisdiction situations.

Labels used in this article for the different types of extended jurisdiction covered by statutes and case law are:

• Boundary Zone
• Emergency
• Outlying Property
• Reciprocal (Mutual Aid) Agreements
• Close Pursuit
• Vehicle Accident & DUI Investigation
• Citizen’s Arrest

Consequences resulting from police actions taken when jurisdiction is lacking, such as evidence suppression, will be touched upon at the end of the article.

A situation involving extended jurisdiction obviously means that an officer is operating in another agency’s primary jurisdiction. As always, it’s important to be aware of applicable agency policy and guidance, along with legal guidelines.

Boundary Zone

The Code of Virginia, §§ 19.2 – 249 & 250 establish extended jurisdiction for areas adjoining town, city or county boundary lines. The legislative purpose of these statutes is “’to prevent the territory contiguous to [localities] from becoming a refuge for criminals…”. ¹

§19.2 – 249 provides that, for “offenses” committed within 300 yards of the boundary between two counties, between two cities or between a county and a city, police officers and deputy sheriffs from both localities have arrest authority. Town, campus and private police officers are not listed.

§19.2 – 250 establishes the authority of town and city officers to make arrests within one mile of their locality limits for “criminal cases involving offenses against the Commonwealth”. Traffic infractions appear to be included within the category “criminal cases” provided they are contained within Title 46.2.²

Also, §250 limits the authority of town officers to 300 yards beyond town limits where specified high population densities are involved. This statute does not address the authority of deputy sheriffs, however it does grant authorities of Henrico and Chesterfield counties jurisdiction one mile into the City of Richmond. Those two counties have police departments – this statute does not cover other counties having police departments.

§23 – 234 grants authority for campus officers to exercise police powers on thoroughfares “immediately adjacent” to campus property.

Distances set forth in the foregoing statutes are measured as the direct distance between the location involved and the nearest boundary limit (“as the crow flies”), not along any given roadway. ³

Emergencies

§15.2 – 1724 establishes extended law enforcement jurisdiction in the following emergency situations plus other circumstances:

• Drug Control Act violations (Title §54.1 – 3401 and following)
• Kidnapping and related offenses (18.2, Ch. 4, Art. 3) including intentional violation of a court order respecting child custody or visitation
• Sex Trafficking (18.2, Ch. 8, Art 3)
• Law enforcement emergencies involving immediate threat to life or public safety
• Execution of orders relating to Involuntary Temporary Detention or Emergency Custody
• Emergencies related to public disasters (internal disorder, fire, flood, etc.)

In the foregoing situations, §1724 provides that officers (and other employees) of a locality may “lawfully go or be sent” beyond their primary jurisdiction “to any point within or without the Commonwealth”. While so engaged, acts of officers “shall be deemed conclusively to be for a public and governmental purpose”. Accordingly, officers shall have “all of the immunities from liability” and “all of the pension, relief, disability, worker’s compensation and other benefits” as applicable in their primary jurisdiction. Although the statute does not specifically state that officers in those situations retain all enforcement powers acting under their own individual discretion as they would have in their primary jurisdiction, an Attorney General Opinion implicitly recognizes that officers so acting have full powers. ⁴

Emergency circumstances may be such that an officer’s supervisors are not  aware of the need to respond, and the delay involved in seeking supervisory approval would be detrimental to life or public safety. The term “go or be sent” (emphasis added) implies that an individual officer need not seek or obtain approval of his or her agency head or other supervisor but may make an individual decision to proceed beyond the primary jurisdiction limits when emergency conditions exist. It appears that there is no case law to the contrary.

Campus police officers’ response under §1724 is restricted to localities contiguous to the locality where their campus is located, and other limitations pertaining to campus officers are set forth in the statute.

§15.2 – 1730 provides that when “the chief law enforcement officer of a locality” declares an emergency and calls for assistance from adjoining localities, officers responding to such a call shall have “full police powers” without being deputized.

Outlying Property

§15.2 – 1725 involves localities that own and operate public facilities such as airports, hospitals, water supply and sewage infrastructure, parks or schools that are located in another locality. In those situations, the locality owning the facility may exercise full police power over the property and persons using it.  It seems that this would be concurrent jurisdiction with the locality within which the property is located, although courts apparently have not addressed this issue.

Reciprocal & Mutual Aid Agreements

The terms “mutual aid agreements” and “reciprocal agreements” are used interchangeably in statutes and generally have a common meaning. These agreements are authorized by statute but must be created by formal action of the entities involved. Exchange of memoranda is not sufficient.

§15.2 – 1726 authorizes localities to enter into reciprocal agreements with virtually any other type of law enforcement agency in the Commonwealth, including the State Police, and with federal agencies. Subject to the terms of the agreement, officers of participating agencies have full police powers throughout all such jurisdictions. However, non-federal officers cannot be empowered to enforce federal laws, and vice versa, unless specifically authorized by statute.

§15.2 – 1727 authorizes localities and colleges to enter into reciprocal agreements with localities outside the Commonwealth, and §15.2 – 1728 addresses agreements that permit officers of a contiguous locality to exercise police powers on federal property.

Typically, these agreements are drafted to specify activation (“call out”) by the agency requesting assistance and may pertain to a regional homicide squad, arson squad, cyber crime task force, area search party, DUI checkpoints, etc. Or agreements may permit enforcement action by an officer who is “casually present” in another jurisdiction. It should be expected that a reviewing court will strictly interpret the language of these agreements. ⁵ In reviewing the facts presented in case law covering this topic, it can be inferred that officers frequently have not been well trained on the requirements and limitations of their agencies’ reciprocal agreements.

§23 – 234 grants authority for campus police agencies to be parties to mutual aid agreements, and by court order to exercise concurrent jurisdiction in designated areas within the related locality. ⁶

Close Pursuit

Statutes and courts typically use the term “close pursuit” – the terms “fresh pursuit” and “hot pursuit” are occasionally encountered.

§19.2 – 77 establishes extended jurisdiction in situations where a subject escapes from custody or flees from an arrest attempt.

The Virginia Courts of Appeal appear to be divided on the issue of close pursuit for purposes of investigative detention, as contrasted with pursuit to arrest. One such case held that pursuit to detain was not supported by §77. ⁷ Another case held that pursuit to conduct a DUI stop under §77 could be based on reasonable suspicion. ⁸ In the absence of a ruling by higher authority, better reasoning seems to support the view that reasonable police activities leading to an arrest are permissible under close pursuit.

For purposes of close pursuit, a subject “not stopping” when so commanded by police lights and siren constitutes “fleeing”. An officer attempting a stop for a traffic infraction can be considered in close pursuit in terms of attempting arrest, as traffic infractions are considered to be misdemeanors. ⁹

It is not necessary for an officer to maintain continuous visual contact with a fleeing subject in order to be in close pursuit. A reviewing court held that close pursuit applied in a case where officers responding did not see the subject at all until the pursuit ended. The court noted that, “Within minutes of the robbery, [officers} had begun an unbroken search, armed with a description of the perpetrator. At successive stages, they found clues that indicated not only the direction of the petitioner's flight but ultimately his identity. The time elapsed from felony to arrest did not greatly exceed a quarter hour.” ¹⁰

§77 provides that close pursuit jurisdiction extends throughout the Commonwealth. In addition, officers may pursue into adjoining states that extend reciprocity by statute to Virginia officers, e.g., North Carolina. ¹¹ A Virginia State Police authority informally advised the author that such reciprocity currently exists with all contiguous states except Kentucky. Agencies operating along the state line would be well advised to confirm this aspect.

Vehicle Accident & DUI Investigation

§19.2 – 81 specifies a number of situations where officers may make an arrest without a warrant. A warrantless arrest may be made for any offense involving a motor vehicle or watercraft, at an accident scene or at any medical facility to which an involved person has been transported. Additionally, a DUI arrest (and arrests for similar boating offenses) may be made at any location, within 3 hours of the offense.

Citizen’s Arrest

Citizen’s arrest authority is a feature of common law and is not addressed by statute. Case law clarifies how police officers may exercise this authority. Citizen’s arrest may save the day when officers were mistaken about having some other basis for extended jurisdiction.

A citizen may arrest for a breach of the peace committed in his presence or for a felony. Significantly hazardous traffic violations are considered to be a breach of the peace. ¹²

Under the “color of office” doctrine, an officer making a citizen’s arrest is not permitted to gather evidence a private citizen wouldn’t be expected to collect, e.g., field sobriety testing. ^13,14

Consequences

Officers realize that trouble may result if their actions are later found by a court to lack a sufficient legal basis. Such adverse consequences include: a citizen successfully defending against charges of assaulting officers, suppression of evidence, and potential civil liability of officers based on use of force or other deprivation of Constitutional rights.

Case law holds that a citizen may use reasonable force to resist an unlawful arrest. ¹⁵ This is clearly the case where police violate Constitutional rights – furthermore, police violation of significant statutory requirements may also justify a citizen’s resisting arrest. ¹⁶ One Circuit Court dismissed a felony charge of assaulting a police officer on grounds that the defendant was justified in resisting officers who lacked jurisdiction under §19. 2 – 81D. ¹⁷

Evidence issues were discussed briefly under the Citizen’s Arrest topic above. If a state statute expressly speaks to admissibility of evidence obtained pursuant to arrest, lawful jurisdiction is required. ¹⁸ The U.S. Supreme Court has held that, when such statutory provisions are absent, the exclusionary rule only applies to Constitutional violations by police. ¹⁹ See also Hill v. Commonwealth ²⁰ and Wright v. Commonwealth.²¹

Civil liability based on problems in extended jurisdiction situations is a complex topic not within the scope of this article. Needless to say, liability is always a risk when officers are not clearly within legal bounds while doing their job.

Summary

Court opinions typically evaluate several possible bases of extended jurisdiction when deciding this issue. An officer may want to use the same type of checklist approach when acting outside his or her primary jurisdiction.  That mental checklist might be:

“Am I….

• Within one mile of my primary jurisdiction limits (300 yards for deputies), or
• Dealing with an emergency affecting life or public safety, or
• Located on property owned by my jurisdiction, or
• Acting within my agency’s mutual aid agreement that applies to the place where I’m now located, or
• In close pursuit of someone who’s escaped from custody or fleeing from an arrest attempt within my jurisdiction, or
• Making a DUI arrest within three hours of vehicle operation, or
• Relying on citizen’s arrest authority, for a breach of peace committed in my presence or a felony.”

Knowledge of extended jurisdictional requirements is one more topic that law enforcement officers are well advised to include in their ever-enlarging professional skill sets.

 

 

¹ Bista v. Commonwealth, 2015 Va. App. LEXIS 380 (Va. Ct. App. Dec. 15, 2015)

² Breitbach v. Commonwealth, 35 Va. App. 604 (Va. Ct. App. 2001) Officer operated radar outside one mile extended jurisdiction limit to detect vehicle speeding within one mile zone. Vehicle stop outside one mile limit. Court held offense occurred within officer’s extended jurisdiction – officer’s position when observing same irrelevant. Jurisdiction to conduct stop was further justified under close pursuit.

³ Hamm v. City of Norton, 1999 Va. App. LEXIS 549 (Va. Ct. App. Sept. 28, 1999) Distance outside boundary measured “as crow flies”, not along route. Close pursuit does not require a fleeing subject, in sense of increased speed or evasive behavior.

⁴ Attorney General Opinion 00-078 (5/17/01) Officer properly engaged in one of the activities enumerated in §15.2-1724 beyond the territorial limits of his or her locality is authorized to act in the same manner and is subject to the same limitations as would apply to a law enforcement officer of the extraterritorial locality.

⁵ Commonwealth v. Borek, 68 Va. Cir. 323 (Va. Cir. Ct. 2005) Memo of Agreement between campus and local police heads, and implementing Court Order, based on expired statute and did not comport with successor statute.

⁶ Boatwright v. Commonwealth, 50 Va. App. 169 (Va. Ct. App. 2007) UVA campus officer made DUI arrest 200 yards into Albemarle Co. Court order gave campus police all powers of Charlottesville officers. Also cited §23-234.

⁷ Hall v. Commonwealth, 12 Va. App. 559 (Va. Ct. App. 1990) Campus officers’ intent in chasing a suspect on foot was for further questioning rather than an attempt to arrest, and therefore close pursuit jurisdiction under §19.2-77 was denied. Interestingly, the facts of the case appear to clearly support that the officers had probable cause to arrest when the chase began but they testified that they did not intend to arrest at that point.

⁸ Hamm ibid.

⁹ Neiss v. Commonwealth, 16 Va. App. 807 (Va. Ct. App. 1993) “Not stopping” is fleeing for purposes of close pursuit. Traffic infractions considered misdemeanors, thus subject to fleeing from “arrest” attempt.

¹⁰ Reyes v. Slayton, 331 F. Supp. 325 (W.D. Va. 1971)

¹¹ Weaver v. Commonwealth, 29 Va. App. 487 (Va. Ct. App. 1999) DUI pursuit into NC, court noted NC statute establishing reciprocal jurisdiction for acts that are “criminal offenses” in both states. Failure to take arrestee before NC magistrate does not invalidate arrest so BAC results admissible.  Extradition not discussed. NC statute still current.

¹² Hudson v. Commonwealth, 266 Va. 371 (Va. 2003) Officer nearly run off road to avoid being rear-ended, defendant “weaving all over the road”. Held to be breach of peace.

¹³ Wilson v. Commonwealth, 45 Va. App. 193 (Va. Ct. App. 2005) DUI outside jurisdiction. “Color of Office” doctrine does not prohibit collection of all evidence, just evidence that a private citizen would not be expected to collect, e.g., field sobriety testing. Interesting facts involved stop with officer’s family in car.

¹⁴ Ford v. Commonwealth, 2013 Va. App. LEXIS 367 (Va. Ct. App. Dec. 10, 2013) Adds to the Wilson analysis the aspect that evidence gathered under citizen’s arrest by officer will not be suppressed unless methods amount to a Constitutional violation.

^15,16 Foote v. Commonwealth, 11 Va. App. 61 (Va. Ct. App. 1990) Conviction of attempted murder of a deputy was reversed because deputy did not display a badge when attempting arrest as then required by §19.2-81 (since amended to eliminate that requirement).

¹⁷ Commonwealth v. Valdez, 87 Va. Cir. 386 (Va. Cir. Ct. 2014) Albemarle Co. officers proceeded into City of Charlottesville to investigate DUI/hit & run. Court held no emergency under §15.2-1724 or call for assistance by City under mutual aid agreement. Opinion also held that officers lacked jurisdiction because they had not made arrest attempt under §19.2-81D when altercation ensued resulting in subject’s assault against them. Felony charges based on elevated LE status dismissed, conviction on misdemeanor assault & battery.

¹⁸ Johnston v. Commonwealth, 2005 Va. App. LEXIS 105 (Va. Ct. App. Mar. 15, 2005) DUI stop more than 300 yards beyond county line requires suppression of BAC certificate, citing Implied Consent requirements.

¹⁹ Virginia v. Moore, 553 U.S. 164 (2008) Search “incident to summons” case. Improper arrest in violation of state law does not require suppression if no Constitutional violation has occurred, such as probable cause requirement.

²⁰ 2012 Va. App. LEXIS 318 (Va. Ct. App. Oct. 9, 2012) GPS device placed on vehicle by deputy more than 300 yards beyond county line. Violation of §19.2-249 by search does not require suppression of evidence. (Lack of search warrant corrected by independent source rule.)

²¹ 1997 Va. App. LEXIS 738 (Va. Ct. App. Dec. 9, 1997) Improper extraterritorial arrest does not require suppression, providing probable cause exists.