Request By:
Mr. A. Jack May, Director
Division of Legal Services
Kentucky Department of Justice
Bureau of Training
Stratton 354, E.K.U.
Richmond, Kentucky 40475
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent letter in which you request an opinion as to whether a peace officer in hot pursuit and who has left his district of jurisdiction may properly arrest a third person who is resisting the arrest of the original offender.
Resisting arrest is classified in KRS 520.090(2) as a Class A misdemeanor. The power to arrest for a misdemeanor, as stated in KRS 431.005, is limited to peace officers by authority of an outstanding warrant or by virtue of commission of the offense in the peace officer's presence. Thus, in order to make an arrest of the third person, the peace officer must be acting as such and not as a private citizen. The question, then, is whether the peace officer's official powers extend to this situation.
Under common law, peace officers were not empowered to arrest a person, without a warrant, for a misdemeanor committed in their presence but outside the confines of their territorial jurisdiction.
State v. Zdovc, Oh., 151 N.E.2d 672 (1958). Similarly, in 6 CJS, Arrest S. 12(2) p. 610 it is stated: "In the absence of statutory permission, a peace officer, when making an arrest within the state, has authority to make an arrest only within the confines of the geographical unit of which he is an officer.
A peace officer is authorized under KRS 431.045 to continue pursuit across corporate or county lines for purposes of making an arrest. No mention is made in the statute of collateral occurrences.
However, in the Commentary (1974) to KRS 520.090 it is stated:
"In the interest of removing such disputes from the street to their proper forum, the unlawfulness of an arrest may not be raised as a defense to a prosecution under this section. However, the defense will not be denied when the person effecting the arrest cannot be identified as a peace officer or when he is known by the arrestee to be a peace officer but he is not acting under color of his official authority. An arrest is made under color of his official authority when the person making the arrest is identified and identifiable as a peace officer acting in his official capacity."
An arrest made in the "official capacity" of a peace officer was stated in
Jones v. VanBever, Ky., 174 S.W. 795 (1915), to be an arrest authorized by statute. The reason for this policy of validation of arrests made "under color" of official authority is stated in Brickey, Kentucky Criminal Law, S. 19.09, pgs. 222-223: ". . . A person who is identified or readily identifiable as a peace officer acting in an official capacity is not likely to contribute to a misapprehension of a situation which would negate criminal intent on the part of the person arrested. . . ."
In conclusion, assuming the peace officer was acting properly in pursuing the original subject across jurisdictional lines, and assuming that the peace officer was in uniform or otherwise acting under color of his authority, an arrest of a third person for attempting to prevent the arrest of another would be valid as the third person is interfering with acts of the peace officer in his official capacity, that is, a statutorily authorized extra-territorial arrest.