dissenting:
The majority and I are in agreement that extraterritorial arrests made by police officers who lack official authority to arrest may nonetheless be authorized as a citizen’s arrest pursuant to section 107 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 3) and that a police officer may assert the authority of his office in effecting such an arrest (People v. Marino (1980), 80 Ill. App. 3d 657, 664). However, I disagree with the majority’s holding that, in the instant case, the officer’s use of a radar gun outside his municipal jurisdiction constitutes an impermissible extraterritorial assertion of authority which thereby “taints the gathering of the information and its later use *** because the officer used the power of his office to gain access to evidence not available to private citizens.” 207 Ill. App. 3d at 421.
The court in People v. O’Connor (1988), 167 Ill. App. 3d 42, generally explored the issue of whether the extraterritorial assertion of authority by a police officer during pre-arrest investigation can invalidate an otherwise lawful citizen’s arrest. In examining this question, the court reviewed the law in two other jurisdictions which abide by the general principle that a police officer cannot effect an extraterritorial citizen’s arrest based on information which was obtained through the extraterritorial assertion of official authority. (O’Connor, 167 Ill. App. 3d at 46-47.) Without defining the overall parameters of the “extraterritorial assertion of authority” doctrine, the court in O’Connor held that, in that case, the use of a radar gun by an officer positioned outside of his jurisdiction to detect speeding by persons inside the jurisdiction was not an impermissible extraterritorial assertion of authority which would invalidate an otherwise lawful citizen’s arrest. O’Connor, 167 Ill. App. 3d at 47.
Because it does not define the general applicability of the “extraterritorial assertion of authority” doctrine, O’Connor does not provide an answer to the precise question presented here: whether a police officer’s extraterritorial use of a radar gun to detect speeders outside of his jurisdiction constitutes an impermissible assertion of authority to gain access to information not available to private persons. However, I believe the answer to this question can be found with reference to the same authority relied upon by the court in O’Connor.
In Phoenix v. State (Fla. 1984), 455 So. 2d 1024, the Florida Supreme Court examined the question of whether there was an improper pre-arrest assertion of investigative authority which would invalidate an otherwise lawful extraterritorial arrest by the police. This concept is referred to in Florida as the “under color of office” doctrine. (Phoenix, 455 So. 2d at 1025.) The court held that the extraterritorial use of police vehicles, including aircraft, to observe the occupants of a vehicle outside of the jurisdiction did not constitute action under color of office. The court noted with approval the district court of appeal’s statement that “[t]he evidence upon which the arrests were based was obtained before confronting any persons [outside the jurisdiction] and without any unlawful assertion of authority vis-a-vis the occupants or a third party.” (Emphasis added.) (Phoenix, 455 So. 2d at 1026.) This is consistent with prior decisions under Florida law holding that the “under color of office” doctrine only applies where an officer actually holds himself out as a police officer or openly asserts his official position in order to observe the unlawful activity. United States v. Ible (5th Cir. 1980), 630 F.2d 389, 393.
I believe that here, as in O’Connor, Phoenix provides a sound basis for decision. The law of Florida is in accord with other jurisdictions in this regard. (See, e.g., United States v. Hernandez (11th Cir. 1983), 715 F.2d 548, 551 (extraterritorial use of ship’s radar held not to invalidate subsequent extraterritorial arrest under Federal common law’s “under color of office” doctrine); State v. Sunford (Mont. 1990), 796 P.2d 1084, 1086 (officer’s extraterritorial use of a radar gun, combined with clearly observable speeding, supported extraterritorial arrest for speeding). See generally Annot., 12 A.L.R.4th 318, 358 — 61 (1982).
The reason for disallowing the extraterritorial assertion of police authority leading to an otherwise valid citizen’s arrest is, in my judgment, to prevent law enforcement officials from obtaining information through the assertion of official authority not available to a private citizen. The use of a radar gun is not the assertion of authority against someone, but only a means to investigate crime. Moreover, the use or possession of a radar gun is not restricted to law enforcement officers as opposed to private citizens.
I perceive the “extraterritorial assertion of authority” doctrine to preclude an officer outside his jurisdiction from asserting the authority of his office in the process of pre-arrest investigation while not requiring him to close his eyes to that which could be observed by a private citizen. For example, it would be impermissible for an officer acting as a private citizen outside of his jurisdiction to assert the authority of his office in order to stop an individual for questioning, to gain access to a private place, or to otherwise exercise other powers available only to law enforcement officials by statute, ordinance, or case law.
I further note that, while the record does not disclose whether the positioning of the radar gun outside of the jurisdiction was accidental or intentional, this fact is irrelevant to the analysis. Extraterritorial investigation without assertion of authority may occur not infrequently in situations where a suspect under surveillance may leave the municipal boundaries. See, e.g., Marino, 80 Ill. App. 3d at 660.
As the only complained-of procedure found improper by the majority was the extraterritorial use of a radar gun, the use or possession of which is not restricted to authorized law enforcement officers, I would not find this to be an impermissible assertion of police authority which would invalidate a lawful citizen’s arrest. Consequently, I would reverse the decision of the circuit court.