dissenting.
The majority opinion holds that there is nothing unreasonable about an arrest being effectuated by one who has absolutely no authority to make that arrest. Such a proposition, which endorses the equation that two wrongs make a right, is repugnant, and I must respectfully dissent.
Under OCGA § 36-8-5 (1), the county police have “[t]he same power to make arrests and to execute and return criminal warrants and processes in the county of their election or appointment only, as sheriffs have . . .” A sheriff has the right and duty to enforce laws as a “ ‘conservator of the peace within his county.’ ” Elder v. Camp, 193 Ga. 320, 323 (18 SE2d 622) (1942). A law enforcement officer from one jurisdiction may arrest in another jurisdiction following a “hot pursuit,” Poss v. State, 167 Ga. App. 86 (305 SE2d 884) (1983), and may assist another officer in making an arrest in a jurisdiction where the second officer is empowered to do so. Coley v. State, 135 Ga. App. 810 (219 SE2d 35) (1975). The instant case featured no “hot pursuit,” and while the trial court may have been authorized to find that the DeKalb County officer merely assisted the Clayton County officer in effecting the arrest, that finding certainly was not demanded by the evidence. In short, it is clear that the DeKalb County officer was without authority to arrest Giangregorio in Clayton County, and the trial court was correct in suppressing the evidence seized incident to that illegal arrest. Hill v. State, 140 Ga. App. 121 (230 SE2d 336) (1976); Kelly v. State, 129 Ga. App. 131 (198 SE2d 910) (1973).
The police officer’s arrest of Giangregorio in this case cannot correctly be validated by the doctrine of de facto authority. In Stephens v. State, 106 Ga. 116 (2) (32 SE 13) (1898) and Powell v. Fidelity & Deposit, 45 Ga. App. 88 (3) (163 SE 239) (1931), the official acts of deputies were upheld despite a defective legal appointment, but the crucial fact, and an absolute requirement for the successful invocation *328of the “de facto” doctrine, is that there was a purported appointment to the office in each case. In other situations, so-called official acts of officers have been held invalid precisely because there had been no appointment to the office, technically deficient or otherwise. See McCalla v. Verdell, 122 Ga. 801 (50 SE 943) (1905); Georgia, Fla. &c. R. Co. v. Anderson, 12 Ga. App. 117 (76 SE 1056) (1912); U. S. Motor Co. v. Baughman Auto. Co., 16 Ga. App. 783 (86 SE 464) (1915). In the instant case, the arresting officer’s authority did not suffer merely from a technical irregularity or defect; there was no purported legal appointment whatsoever in Clayton County.
Decided December 2, 1986 Rehearing denied December 18, 1986 Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellant. Steven E. Lister, for appellee.Any contention that the officer’s arrest of Giangregorio could be upheld as a “citizen’s arrest” under OCGA § 17-4-60 is spurious. The officer quite clearly was acting as a law enforcement officer during the entire sequence of events. To permit a police officer to become a private citizen whenever he commits an illegal search and seizure, so as to allow use of the fruits of such illegality, emasculates the Fourth Amendment.
In summary, in the instant case there was no dispute that the arresting officer’s legal appointment was in DeKalb County and not Clayton County. The arresting officer’s act in Clayton County cannot be validated under the doctrine of de facto official acts if that doctrine is applicable, simply because he had not been appointed, defectively or otherwise, to such office in Clayton County. The trial court, accordingly, properly suppressed the evidence seized incident to the illegal arrest. That result may be in part unsavory, but it is necessary. The outlaw may have no boundaries, but the law must prevail by observing limits to how far it stoops to conquer. “[L]aw must be the law even among its friends.” Cotton v. City of Atlanta, 10 Ga. App. 397, 399 (73 SE 683) (1911).
I would affirm the trial court.
I am authorized to state that Presiding Judge Birdsong and Judge Sognier join in this dissent.