People v. Hamilton

QUINN, Justice, specially

concurring:

I specially concur in the result. The Jefferson County Judge issuing the warrant did not specifically direct it to either of the arresting officers, Detective Lamb and Lieutenant Foulke of the Golden Police Department, for execution anywhere in the state. Instead, the issuing judge merely directed the warrant to “[a]ny person authorized by law to execute warrants within the State of Colorado.” I, therefore, agree with the majority that the Golden police officers had no extraterritorial authority to arrest the defendant in Denver.

I view the facts of this case as significantly different from those present in People v. Wolf, 635 P.2d 213 (Colo.1981), where Denver police officers, knowing they were exceeding the territorial boundaries of their authority, proceeded to make an extensive investigation of the defendant’s activities in Adams County and later in the day arrested the defendant in Adams County without a warrant and not in fresh pursuit. Here, in contrast, a warrant had been issued for the defendant’s arrest, and until today’s decision the authority of a peace officer to execute an arrest warrant outside of his territorial jurisdiction had not been definitively resolved. The conduct of the arresting officers, under the totality of circumstances in this case, was not so unreasonable as to violate the constitutional proscriptions against unreasonable seizures of the person, U.S. Const. Amend. IV; Colo. Const. Art. II, Sec. 7.

I write separately because I believe the majority’s construction of the “fresh pursuit" statute unduly restricts what I perceive to be the clear authority of the court to issue an arrest warrant designating a specifically named officer to execute it anywhere in the state. I would not construe section 16-3-106, C.R.S.1973 (1978 Repl.Vol. 8), to prohibit a peace officer from making an extraterritorial arrest as long as an arrest warrant, issued pursuant to Crim.P. 4, specifically designates that officer by name to execute it anywhere in the state.

I.

Crim.P. 4(b) provides as follows:

“(1) Warrant. The arrest warrant shall be a written order issued by a judge of a court of record directed to any peace officer and shall:
(I) State the defendant’s name or if that is unknown, any name or description by which he can be identified with reasonable certainty;
(II) Command that the defendant be arrested and brought without unnecessary delay before the nearest available judge of a county or district court;
(III) Identify the nature of the offense;
(IV) Have endorsed upon it the amount of bail if the offense is bailable; and
(V) Be signed by the issuing county judge.”

Crim.P. 4(c) states that “[t]he warrant may be executed by any peace officer” and “may be executed anywhere within Colorado.”

The plain meaning of Crim.P. 4 is to permit the judge issuing an arrest warrant to designate by name and to authorize the officer who requests the warrant to execute it anywhere in the state. The purpose of an arrest warrant, after all, is to bring the defendant before the court so that he may answer criminal charges already filed or about to be filed against him. In most cases the court issuing the warrant will be the same court in which the charges will be filed, and the officer at whose request the warrant is issued will know much more than officers from some other jurisdiction about what danger, if any, is posed by the defendant and the likely prospects of making an effective arrest at a particular location.

As the majority recognizes, the common law authorized a court to direct a particular person by name to execute a warrant any*159where within the jurisdiction of the court, and the person so named then had authority coextensive with that of the court with respect to the execution of the warrant. See, e.g., Rex v. Weir, 1 Barn & C. 288, 107 Eng.Rep. 108 (1823); Rex v. Chandler, 1 Ld.Raym. 545, 91 Eng.Rep. 1264 (1700); In Chorley’s Case, 1 Salk. 176, 91 Eng.Rep. 161 (1699). Cf. Restatement (Second) of Torts § 129 (1965) (peace officer not privileged to arrest another under warrant unless the arrest is made within the territory within which the court issuing the warrant has authority to order the arrest). Crim.P. 4 makes explicit the long-recognized principle that courts retain the power to issue warrants and other writs in connection with matters over which they have jurisdiction.1 I therefore would hold that Crim.P. 4 permits a judge to nominate the peace officer at whose request the arrest warrant is issued to execute it anywhere within the state of Colorado.2 Were the intent of the rule otherwise, it would have so stated.3 No such limitation is found in Crim.P. 4, and I would not read one into it.

II.

Section 16-3-106 has its origin in the territorial law of 1868. Colo.Terr.Laws R.S. 1868, ch. XXII, § 236 at 251. In its original form the statute first provided that when an arrest warrant issued, “it shall be the duty of any sheriff, coroner or constable in whose hands any such warrant shall come, to execute the same within their respective counties,” and then proceeded to address the fresh pursuit issue as follows:

“When any such sheriff, coroner or constable ... shall be in pursuit of any offender, having a warrant for the appre*160hension of such offender, and the offender shall cross the line into the adjoining county, such sheriff, coroner or constable ... may pursue such offender into the adjoining county and make the arrest, as if such offender had been found in the county of the officer in pursuit.”

This “fresh pursuit” statute, which has undergone several amendments since its original enactment, was enacted in its present form in 1972. Colo.Sess.Laws 1972, ch. 44, § 39-3-106 at 199. The present version of the statute drops the provision with respect to the duty of a peace officer to execute an arrest warrant within his territorial authority, but retains the provision authorizing the officer to pursue an offender in fresh pursuit beyond the boundary line of his authority in order to make an arrest.

I view section 16-3-106 as an express statutory authorization to a peace officer to make an extraterritorial arrest in fresh pursuit in two situations: (1) when the officer has probable cause to believe the offender committed a crime or the crime was committed in the officer’s presence; and (2) when the officer has a warrant for the offender’s arrest or knows that an arrest warrant has been issued, but the warrant itself does not specifically designate that particular officer to execute it beyond the territorial limits of his authority. In contrast to the majority, I do not believe the legislature intended section 16-3-106 as a limitation on the authority of a court to authorize a particular officer, designated by name in the warrant, to execute it anywhere in the state. Reading such a limitation into the statute, in my view, undercuts the plain meaning of Crim.P. 4, which was promulgated pursuant to this court’s rule-making power under Article VI, Section 21 of the Colorado Constitution. Crim.P. 4 not only is consistent with the constitutional authority of this court, but also comports with the statutory authority of district and county courts to issue writs and warrants “necessary and proper to the complete exercise of the power conferred upon them by the constitution and laws of this state.” Section 13-1-115, C.R.S.1973.4

I agree with the majority, however, that the arrest warrant in question did not authorize the Golden officers to effectuate the defendant’s arrest in Denver; and although the arrest was beyond the authority of the officers, I also agree that the evidence should not have been suppressed under the peculiar facts of this case.

I am authorized to say that ROVIRA, J., joins me in this specially concurring opinion.

. Section 13-1-115, C.R.S.1973, states that courts shall have power “to issue all writs necessary and proper to the complete exercise of the power conferred on them by the constitution and laws of this state.” District courts, by constitution, are courts of general jurisdiction. Colo. Const. Art. VI, Sec. 9. County courts, which by constitution are courts of limited jurisdiction, Colo. Const. Art. VI, Sec. 17, are nonetheless vested with such powers “as are inherent in constitutionally created courts.” Section 13-6-102, C.R.S.1973. The legislature has granted county courts concurrent original jurisdiction with district courts with respect to the issuance of warrants. Section 13-6-106(l)(b). This constitutional and statutory scheme reinforces what I believe is the inherent power of courts to issue warrants and other writs in connection with matters over which they have jurisdiction.

. Crim.P. 4(b) and (c), in their present form, became effective April 1, 1974. Crim.P. 59, C.R.S.1973 (Vol. 7B). In 1972, when the present version of section 16-3-106 was enacted, the then existing rule of criminal procedure stated that an arrest warrant may “be executed by any person authorized by law” and “may be executed ... anywhere within Colorado.” Crim.P. 4(c)(1) and (2), C.R.S.1963 (Vol. 1). Even under the former Crim.P. 4, however, the intent was to authorize a peace officer named in the warrant to execute it anywhere in the state. The comment to the original rules of criminal procedure promulgated in 1961 states as follows with respect to the former version of Crim.P. 4(c):

“Rule 4(c)(1) provides for the execution of a warrant ‘by any person authorized by law.’ This would include ‘any sheriff, coroner, constable or peace officer of the state of Colorado, or police officer of the county’ or any person who is named in the warrant and authorized by the issuing justice of the peace.” Symposium on the Colorado Rules of Criminal Procedure, 34 Colo.L.Rev. 1, 7 (1961).

.Crim.P. 41(d)(5)®, for example, expressly requires that, except in special circumstances, search warrants must be directed to an officer authorized by law to execute the warrant “in the county wherein the property is located.” The special circumstances referred to in subsection (d)(5)® are set out in subsection (d)(5)(H):

“(II) Any judge issuing a search warrant, for the search of a person or for the search of any motor vehicle, aircraft, or other object which is mobile or capable of being transported may make an order authorizing a peace officer to be named in such warrant to execute the same, and the person named in such order may execute such warrant anywhere in the state. All sheriffs, coroners, police officers, and officers of the Colorado State Patrol, when required, in their respective counties, shall aid and assist in the execution of such warrant. The order authorized by this subsection (5) may also authorize execution of the warrant by any officer authorized by law to execute it in the county wherein the property is located.”

Both subsection (d)(5)(f) and (d)(5)(H) of Crim.P. 41 track the statutory language of section 16-3-305(1) and (3), C.R.S.1973 (1978 Repl.Vol. 8).

. This court in People v. Lott, 197 Colo. 78, 589 P.2d 945 (1979), strongly implied that an officer who obtains an arrest warrant pursuant to Crim.P. 4 does have authority to make an extraterritorial arrest when the arrest warrant so provides. In Lott Wheat Ridge police officers learned of a burglary in Wheat Ridge and, without having obtained an arrest warrant or having enlisted the assistance of the Denver police, crossed over into Denver several hours after the burglary and arrested the defendants at a halfway house where they resided. In upholding the trial court’s suppression of the evidence seized incident to the arrest, this court stated: “The district court ruled, and we agree, that there was time to have obtained an arrest warrant or to have enlisted the assistance of Denver police before arresting the [defendants] at 6:00 p.m.” 197 Colo. at 81, 589 P.2d at 945. Lott thus implicitly recognizes that courts do have the authority to authorize a particular peace officer to execute a warrant anywhere in the state of Colorado and that this authority has not been abrogated by section 16-3-106.