New Berlin v. John Francis Downey, 2013AP 2352-FT, District 2, 5/14/14 (1-judge; ineligible for publication); case activity
An on-duty police officer had authority to stop Downey outside his jurisdiction because he was acting in response to an “emergency situation,” § 175.40(6)(a), and because he was in fresh pursuit of a law violator, § 175.40(2).
A West Allis officer was flagged down by a motorist and told a car was driving west in the eastbound lanes of Oklahoma Avenue. The officer headed west looking for the car, continuing on even after he crossed into neighboring New Berlin. Six blocks into New Berlin he saw the car and stopped it. Two minutes later—and about five minutes after the West Allis officer was initially flagged down—New Berlin police arrived, and they arrested Downey for OWI. (¶¶2-5).
The West Allis officer was authorized to act outside his jurisdiction under § 175.40(6)(a). He was on duty and on official business, his action would have been authorized under the circumstances in the officer’s own jurisdiction, and he was acting to respond to an emergency that poses a significant threat of bodily harm or to life because “a citizen’s report that he had just observed a vehicle driving westbound in the eastbound side of Oklahoma Avenue in the darkness of early morning was a serious emergency situation.” (¶8). Downey claimed the officer didn’t follow his department’s directives regarding notification and coöperation with the other jurisdiction as required by § 175.40(6)(b) and (d) because he failed to get prior approval from his shift commander, but this argument misreads the directive:
¶9 … [T]hat rule is worded as an advisory directive—the officer “should” have the prior approval, not “shall” have it. This is in contrast with the next portion of the rule, which requires that the officer “shall” notify dispatch of his or her location. And, in any event, the officer did all he could under the circumstances to obtain prior approval—he called dispatch. The exigencies of the situation demanded he act immediately to prevent an accident, not wait to confirm with dispatch that approval was being granted. ...
In addition, the officer was authorized to stop Downey because he was in “fresh pursuit” of a violation of law under § 175.40(2), applying City of Brookfield v. Collar, 148 Wis. 2d 839, 840-41, 843, 436 N.W.2d 911 (Ct. App. 1989) (Brookfield officer who followed vehicle with expired license plates and then noticed it speeding, weaving, and crossing the center line was justified in stopping the vehicle in Elm Grove because she was in “fresh pursuit”). The fact the officer here didn’t see Downey till he was outside his jurisdiction is immaterial:
¶10 … What matters under the “fresh pursuit” doctrine is whether the officer acted without unnecessary delay and remained in continuous, uninterrupted pursuit. Id. at 842. There is no requirement of “continuous surveillance of the suspect.” Id. at 842-43. Here, a motorist in the officer’s jurisdiction was so alarmed that he honked and flashed his lights at the officer and asked him to pursue the car traveling in the wrong lane in the jurisdiction. The officer did so. The whole incident took a couple of minutes. This was fresh pursuit of conduct that happened in the officer’s jurisdiction.
As I understood “fresh pursuit”, an officer actually observes an infraction within his/her jurisdiciton, continuously pursues the offender into and makes the stop and/or arrest within another jurisdiction. Here the officer never observed an infraction within his jurisdiction, and could not, therefore, continuously pursue. He searched for the vehicle in another jurisdiction. This seems like an expansion of the doctrine to me.