Can an Arkansas police officer chase and ticket a driver outside the officer's jurisdiction for a traffic misdemeanor that started outside the officer's territory?

Plain-English summary

In June 2017, Arkansas Attorney General Leslie Rutledge answered a question from State Representative Dwight Tosh about whether an officer could lawfully chase and cite a second motorist whose only offense, failing to change lanes, occurred entirely outside the officer's home jurisdiction. The setup: an officer pursued a speeder from inside his city limits across the line, where he stopped the speeder and started writing the ticket. While he was doing that, a second car drove past without changing lanes (a violation of Arkansas's "move over" rule). The officer cited the speeder, then chased and ticketed the second driver too. All of that took place outside the officer's home territory.

The AG concluded the answer to both of Representative Tosh's questions was no. Failure to change lanes is a misdemeanor under Ark. Code Ann. § 27-51-310(c)(1). Arkansas's fresh-pursuit statutes (§§ 16-81-301 and 16-81-303) authorize officers to chase a misdemeanor suspect across jurisdictional lines only when the pursuit started inside the officer's home jurisdiction. Here, the second driver's offense occurred entirely outside that home territory, so the officer had no fresh-pursuit authority. He could not lawfully pursue, detain, or ticket the second motorist. The first stop, however, was probably valid: the officer saw the speeding inside his jurisdiction, so the pursuit met the fresh-pursuit test even though it ended outside.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is "fresh pursuit" under Arkansas law as the AG described it in 2017?
A: It is a chase of a suspect "without unreasonable delay," extended by statute to cover any criminal offense (felony or misdemeanor) that the officer personally witnessed. § 16-81-303 broadened the common-law rule, which originally covered only felonies. Critically, the AG read the case law to require that the pursuit begin in the officer's jurisdiction; just witnessing the misdemeanor outside the line was not enough.

Q: What were the four ways an Arkansas officer could lawfully arrest someone outside his territory in 2017?
A: Per Colston v. State, 346 Ark. 503 (2001), as recapped in the opinion: (1) fresh pursuit, (2) executing an arrest warrant, (3) acting under a written cross-jurisdictional policy at the request of officials in the foreign jurisdiction, or (4) responding to a contiguous-county sheriff's request to investigate drug crimes under Ark. Code Ann. § 5-64-705.

Q: If an officer is already outside his jurisdiction, can he still arrest someone for a fresh felony seen there?
A: Yes. The opinion noted that for felonies, an officer always has authority to make a warrantless arrest based on probable cause, including outside his jurisdiction (Ark. Code Ann. § 16-81-106(b)). The line the AG drew was specific to misdemeanors.

Q: What about the first ticket, the one for speeding? Was that valid?
A: The AG indicated yes, in a footnote. The speeder's offense (speeding) was witnessed inside the officer's home territory and the pursuit began there, even though the stop and citation happened across the line. That fact pattern matched the misdemeanor fresh-pursuit cases (Smith v. City of Little Rock, King v. State, Debriyn v. State) the AG cited.

Q: Could the second driver's behavior ever justify pursuit?
A: The AG flagged three scenarios. First, if the failure to change lanes was paired with conduct giving probable cause for a felony (e.g. evading), the officer could pursue across the line. Second, if the officer's home jurisdiction had a pre-existing written policy and the neighboring jurisdiction had requested cross-border assistance, that statutory exception would apply. Third, if officers from the neighboring jurisdiction were already on scene and joined the pursuit, the officer could assist them under Colston v. State.

Q: What happens if an officer makes an unauthorized extra-jurisdictional stop?
A: The opinion says the officer "must be treated as a private citizen" in that scenario. Citizens can arrest only for felonies committed in their presence, not misdemeanors. So the resulting stop, search, or evidence may be challenged on suppression grounds. The opinion did not address suppression directly but cited Perry v. State, 303 Ark. 100 (1990), for the private-citizen analogy.

Background and statutory framework

The opinion sits within a long line of Arkansas Supreme Court and Court of Appeals cases that wrestled with the territorial limits of police authority. The traditional common-law rule was that an officer outside his jurisdiction was, in legal effect, a private citizen. Statutes in Title 16, Chapter 81 carved out specific exceptions: warrant service anywhere in the state (§ 16-81-105), warrantless cross-border arrests with the host jurisdiction's written permission (§ 16-81-106), drug-investigation cross-border authority for sheriffs (§ 5-64-705), and the fresh-pursuit doctrine (§§ 16-81-301 and 16-81-303). Section 16-81-303 expanded fresh pursuit to cover any criminal offense, not just felonies, but the courts in Smith v. City of Little Rock, King v. State, and Debriyn v. State read the statute as still requiring the pursuit to start at home.

Representative Tosh's hypothetical landed squarely on the gap between fresh pursuit (which requires home-jurisdiction onset) and warrantless extra-jurisdictional misdemeanor arrest (which requires either a written policy plus host invitation, or a felony). The second driver's situation fit neither. The AG declined to read the statutes as creating an additional exception based on the officer being lawfully present in the neighboring jurisdiction for a separate stop.

Citations and references

Statutes:

• Ark. Code Ann. § 27-51-310(c)(1), Failure to change lanes is a misdemeanor
• Ark. Code Ann. § 16-81-301, Fresh pursuit authority
• Ark. Code Ann. § 16-81-303, Definition of fresh pursuit
• Ark. Code Ann. § 16-81-105, Warrant service statewide
• Ark. Code Ann. § 16-81-106, Warrantless arrest with policy plus permission
• Ark. Code Ann. § 5-64-705, Cross-county drug investigations

Cases:

• Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990), officer outside his jurisdiction is a private citizen absent statutory authority
• Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991), DWI arrest off-campus valid where pursuit began on campus
• Colston v. State, 346 Ark. 503, 58 S.W.3d 375 (2001), four-instance summary of extra-jurisdictional arrest authority
• King v. State, 42 Ark. App. 97, 854 S.W.2d 362 (1993), fresh pursuit valid where erratic driving observed in city limits
• Debriyn v. State, 2010 WL 4345693 (Ark. App. Nov. 3, 2010), Fayetteville officer's pursuit into Farmington upheld
• Menard v. City of Carlisle, 309 Ark. 522, 834 S.W.2d 632 (1992), arrest valid where local resolution authorized cross-border response

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked landing page is authoritative.

Opinion No. 2017-027
June 19, 2017

The Honorable Dwight Tosh
State Representative
[address redacted]
Jonesboro, AR

Dear Representative Tosh:

This is in response to your request for an opinion regarding the authority of law-enforcement officers to issue citations outside of their jurisdictions. You set out the following hypothetical scenario in your correspondence:

A police officer in my district pursued a speeding motorist within his jurisdiction, but the actual stop and citation took place outside of the officer's jurisdiction. The officer was completing the citation when a vehicle passed without changing lanes. The officer completed the first citation, then pursued and cited the second motorist for not changing lanes. The pursuit, stop, and citation of the second motorist took place outside of the officer's jurisdiction.

In light of this scenario, you ask the following questions, which I have slightly paraphrased:

1. Would it be legal for the officer to pursue and detain the second motorist for failing to change lanes, when the officer was in the process of issuing a ticket for a speeding violation that began in the officer's jurisdiction but ended outside of that jurisdiction?

2. Would it be legal for the officer to issue a ticket to the second motorist for failing to change lanes?

Response

In my opinion, the answer to your first question is "no." The offense of failing to change lanes is a misdemeanor in Arkansas. While law-enforcement officers have limited extra-jurisdictional authority, Arkansas statutes generally do not authorize an officer to pursue and detain an individual in response to a misdemeanor that occurred entirely outside the officer's jurisdiction. Therefore, based on the facts provided, I do not believe the officer could lawfully pursue or detain the motorist for failing to change lanes. But this might not always be the result, given that questions surrounding pursuit and arrest are highly fact-dependent.

I believe the answer to your second question, regarding the legality of a ticket for the failure to change lanes, is also "no." To be sure, your hypothetical describes conduct that would give rise to probable cause to suspect a failure-to-change-lanes violation. But because the offense is a misdemeanor, the officer in question would be constrained from pursuing or detaining the second driver for criminal conduct that occurred outside the officer's jurisdiction. Thus, it logically follows that he could not ticket (or arrest) the driver.

Discussion

Question 1. Would it be legal for the officer to pursue and detain the second motorist for failing to change lanes, when the officer was in the process of issuing a ticket for a speeding violation that began in the officer's jurisdiction but ended outside of that jurisdiction?

The crux of this question is that the failure to change lanes took place outside the jurisdiction of the officer who witnessed the offense. The general rule is that a law-enforcement officer "outside the territorial limits of the jurisdiction under which he holds office is without official power to apprehend an offender, unless he is authorized to do so by state statute." Two Arkansas statutes are instructive.

Under Ark. Code Ann. § 16-81-301, an officer "in fresh pursuit of a person who is reasonably believed to have committed a felony in this state or has committed or attempted to commit any criminal offense in this state in the presence of the officer, ... shall have the authority to arrest and hold in custody such person anywhere in this state." Furthermore, Ark. Code Ann. § 16-81-106 permits an officer outside his jurisdiction, but acting with the permission of officials from the local jurisdiction, to "arrest without warrant a person who commits an offense within the officer's presence or view if the offense is a felony or a misdemeanor."

These statutes and the cases interpreting them outline the circumstances under which a law-enforcement officer can initiate an extra-jurisdictional arrest. As those cases make clear, an officer in "fresh pursuit" of a suspect is authorized to continue that pursuit into another jurisdiction. But an officer already outside his jurisdiction (and not engaged in fresh pursuit of the specific suspect) is limited in his ability to pursue and detain.

Based largely on the statutes cited above, the Arkansas Supreme Court has summarized the "four instances where officers may arrest outside their territorial jurisdiction" as follows:

(1) when the officer is in fresh pursuit ... (2) when the officer has a warrant for arrest ... (3) when a local law enforcement agency has a written policy regulating officers acting outside its territorial jurisdiction and when said officer is requested to come into the foreign jurisdiction, ... and (4) when a sheriff in a contiguous county requests an officer to come into his county to investigate and make arrests for violations of drug laws ....

In three of the four instances, the officer's extra-jurisdictional authority originates with a written document or some other agreement that pre-dates the arrest. That is, the officer may be authorized to arrest a suspect outside his jurisdiction by a warrant, by a policy in writing "regulating ... law enforcement activities outside [the officer's] jurisdiction," or by permission from a nearby sheriff to "investigate and arrest any person violating any provision" of the Uniform Controlled Substances Act. Because there is no suggestion in your hypothetical that there was an outstanding warrant for the second motorist, and no indication that an agreement was in place between the officer's jurisdiction and the neighboring jurisdiction, it appears that the motorist could not be pursued, detained, or ticketed pursuant to a pre-existing document or policy.

The issue, then, is whether the officer was in "fresh pursuit" of the second motorist. Essentially, fresh pursuit is chase of a suspect "without unreasonable delay." Arkansas statute extends the definition of fresh pursuit to a suspect who "has committed or attempted to commit any criminal offense in this state in the presence of the arresting law enforcement officer," enabling the officer to make an arrest "anywhere in this state." One might argue that so long as the officer witnessed the suspect "commit[] or attempt[] to commit any criminal offense," the officer had authority to pursue and arrest that suspect outside of his jurisdiction. But case law clearly confines fresh pursuit for purposes of extra-jurisdictional arrest to situations in which the misdemeanor offense occurs in the officer's jurisdiction before prompting a chase (and eventually, an arrest) that involves another jurisdiction.

In Smith v. City of Little Rock, the Supreme Court framed the question as whether an officer "was within his jurisdiction when he first observed the appellant, and whether that justified [his] arrest" of the appellant for driving while intoxicated. It was undisputed that the appellant was arrested "one block off Fair Park Boulevard, on a street not adjacent to the campus" where the officer was assigned. The appellant argued that the officer lacked the authority to arrest given that the detention occurred off campus. The Court noted that at common law, the fresh-pursuit doctrine "enabled an officer to pursue a felon into another jurisdiction." And it concluded that Arkansas statute expanded the definition of fresh pursuit in a manner "broad enough to embrace misdemeanors," such as driving while intoxicated, that are committed in an officer's presence. The Court found that the officer had this "firsthand information" because he witnessed the appellant drive erratically on campus. But importantly, the Court also found that "the pursuit began within the patrolman's jurisdiction."

Thus, the appellant's arrest was valid because the misdemeanor was committed in the officer's presence, and the officer "began pursuit within his jurisdiction" before driving four blocks to make the arrest. This dual requirement, a misdemeanor offense committed in the officer's presence, and pursuit of the misdemeanant that begins in the officer's jurisdiction, is borne out in multiple cases involving vehicular crimes. For example, a Marshall police officer who "noticed appellant's erratic driving while both the officer and the appellant were within the city limits of Marshall" was authorized to arrest the suspect outside the city. The Court of Appeals upheld the trial judge's ruling that the officer was in "fresh pursuit" when he made the arrest. And in Debriyn v. State, the Court of Appeals affirmed a misdemeanor conviction that resulted from a Fayetteville police officer pursuing a motorist into the city of Farmington. The officer "was in the Fayetteville city limits when he first observed [the suspect] committing a traffic violation," and so was in fresh pursuit when he made the arrest outside his jurisdiction.

Based on your hypothetical scenario, it does not appear that the fresh-pursuit doctrine applies to the officer with respect to the motorist who failed to change lanes. This is true notwithstanding the fact that one of the elements necessary for fresh pursuit undoubtedly exists. That is, the officer observed the motorist fail to change lanes. But without aggravating factors, failure to change lanes is a misdemeanor. It is not enough for the offense to have occurred in the officer's presence. To trigger fresh pursuit, it must also have occurred in the officer's jurisdiction. Because it did not, and because the officer does not appear to have had any other authority to pursue, detain, ticket, or make an arrest outside his jurisdiction, the officer "must be treated as a private citizen." A citizen is authorized to "make an arrest where he has reasonable grounds for believing that the person ... committed a felony," but there is "no such provision in case of a misdemeanor." Given that failure to change lanes is a misdemeanor offense, I do not believe the officer could lawfully pursue or detain the second motorist outside his jurisdiction.

It should be emphasized, however, that pursuit of the second motorist might become proper with any number of factual variations. First, the officer would certainly be authorized to pursue a suspected felon outside his jurisdiction. Failure to change lanes in and of itself is not a felony, but failing to change lanes combined with other behavior might cause the officer to suspect a felony had been committed. Likewise, the officer could pursue the second motorist, even for a misdemeanor, if his home jurisdiction had a policy authorizing him to operate within the neighboring jurisdiction, and officials in the neighboring jurisdiction requested his assistance. Third, if law-enforcement officials from the neighboring jurisdiction were present (to assist with detention of the first motorist, for example), then the officer might have authority to join them in pursuing the second motorist. This is not an exhaustive list of circumstances leading to a valid pursuit outside an officer's jurisdiction. But I mention these possibilities to underscore the degree to which changes to the facts may change the outcome.

Question 2. Would it be legal for the officer to issue a ticket to the second motorist for failing to change lanes?

For the reasons discussed above, I believe the answer to this question is also "no." The fresh-pursuit doctrine does not authorize the officer to give chase to the second motorist for the misdemeanor offense of failing to change lanes. Nor does the hypothetical scenario identify other sources of authority for an extra-jurisdictional pursuit, such as a request to the officer from officials in neighboring jurisdictions. Therefore, the officer would have only the authority of a private citizen, who cannot pursue, detain, ticket (or arrest) a misdemeanant under prevailing Arkansas law.

Sincerely,

Leslie Rutledge
Attorney General