also dissenting:
On June 17, 1989, all was quiet in the Village of Sleepy Hollow. The village policeman, Officer Beyer, having nothing better to do, decided to expand his area of law enforcement. Officer Beyer, on duty and in uniform, took the police car and the police radar gun and located himself along Route 72 at a point seven-tenths of a mile outside the village limits. It was in that posture and at that location that Officer Beyer clocked and arrested the defendant, Peter Lahr, for driving 80 miles per hour in a 50 mile-per-hour zone.
The defendant moved to quash the arrest and suppress the evidence on the grounds that the arrest was extraterritorial and thus illegal. There is no dispute that the jurisdiction of a police officer is limited to the geographical limits of the governmental unit where the police officer is employed. (People v. Marino (1980), 80 Ill. App. 3d 657, 661.) However, the State claims that the officer had the right to make a “citizen’s arrest.” That is to say, Officer Beyer had the same right as any other citizen of the State to arrest a person on the spot who is observed to be committing an offense. Ill. Rev. Stat. 1989, ch. 38, par. 107 — 3.
The trial judge granted defendant’s motion. The State appealed and the appellate court, with one judge dissenting, affirmed. (207 Ill. App. 3d 419.) The majority opinion of this court also affirms. I respectfully dissent.
In its simplest terms, this case stands for the proposition that an on-duty traffic policeman with a radar gun may not ply his trade outside the geographic area of his local unit of government. If that were all there were to it, the proposition might be viewed as a humane and beneficent rule of law by the numberless Illinois motorists who operate their motor vehicles under the constant concern of being arrested for speeding. Most motorists would probably applaud a rule that limits and restricts overreaching on' the part of traffic policemen. That this ruling will put a noticeable crimp in traffic enforcement or traffic safety is, however, certainly not the case. So far as policemen are concerned, Illinois is covered like a blanket. In addition to Illinois’ 2,100 State policemen,1 there are 102 counties with sheriff’s departments, 1,281 cities and villages authorized to have municipal police departments* 2 plus 355 park districts with police powers.3 Chicago alone has over 12,000 police officers.4 Peoria, much smaller, has over 200.5 While State policemen will continue to have statewide jurisdiction, the announced rule will keep municipal policemen and sheriff’s deputies within their own narrow geographical areas.
Parenthetically, I would also note that while the original purpose of enacting and enforcing highway speed laws was public safety, this purpose has, in substantial measure, given way to the purposes of earning bounty revenues for State and local governments and of furnishing employment to hundreds of policemen. In Illinois as a whole, these predatory activities produce annual revenue in fines and costs approximating $75 million.6
But to get back to the case at hand, the question before the court is not whether a police officer should have extraterritorial jurisdiction. I agree with the majority and with that long line of cases that says he should not. Where I depart from the majority is in its ruling that reduces the arrest powers of a police officer below that of an ordinary citizen.
How does the majority arrive at its conclusion? It does so by grounding its decision on the use of the radar gun, stating that its use was “an assertion of the officer’s police authority” in an area outside of his territorial jurisdiction. (147 Ill. 2d at 384.) Citing the Illinois appellate opinion of People v. O’Connor (1988), 167 Ill. App. 3d 42, the majority states that “an extraterritorial arrest will not be upheld if in making the arrest the officer uses the powers of his office to obtain evidence not available to private citizens.” (147 Ill. 2d at 383; see O’Connor, 167 Ill. App. 3d at 46-47.) The majority then reasons that since “it is generally true that the use of radar guns for monitoring the speed of traffic is limited to police officers,” the use of a radar gun in this case was an impermissible assertion of police authority. (147 Ill. 2d at 383-84.) The appellate court’s reliance upon O’Connor is quoted with approval for the proposition that “use of such [radar] equipment *** taints the gathering of the information and its later use [citation] because the officer used the power of his office to gain access to evidence not available to private citizens.” 147 Ill. 2d at 383.
The majority opinion finds no difficulty with the fact that the police officer was on duty, in uniform and using a police vehicle at the time of arrest. Those attributes of officialdom are not viewed by the majority as impermissible assertions of police authority. Were they so viewed, the majority opinion would be unable to reconcile the otherwise inconsistent cases of People v. Marino (1980), 80 Ill. App. 3d 657, People v. Gupton (1985), 139 Ill. App. 3d 530, People v. Rowe (1984), 128 Ill. App. 3d 721, and even O’Connor, 167 Ill. App. 3d 42, which the majority both approves and distinguishes. In order to reach its conclusion in the instant case, the majority opines that the use of police authority to gather evidence is what taints a later arrest. And that, since the use of a radar gun amounts to the assertion of police authority, the arrest flowing therefrom is thus “tainted” and illegal.
Initially, it should be noted that the majority opinion proceeds from a bad premise. The use of police authority to gather evidence does not “taint” an arrest. The use of police authority to gather evidence is wholly appropriate and, in fact, a fundamental part of the police function. It should be of no moment whether a police officer gathers evidence either within or without his jurisdiction. Evidence gathering has no geographical boundaries. A ruling to the contrary serves no useful societal purpose and, indeed, serves instead to impede law enforcement. Such a rule should not be followed.
The implications of this rule are serious indeed. If a municipal policeman, in the exercise of his police authority, acquired evidence of a crime being either committed or planned, he would be unable to intercept and arrest the culprit in the act of commission of the offense if the situs were outside the boundaries of the municipality. In intercepting an armed robbery or even a murder in progress, the policeman’s arrest would be quashed and the evidence would be suppressed under the rationale promulgated by the majority opinion. A private citizen, incongruously, would not be so restricted and could, if so inclined, effectuate the arrest of the armed robber or murderer.
The majority, relying upon O’Connor, 167 Ill. App. 3d 42, reasons that since a police officer’s authority to make an extraterritorial arrest is no greater than that of a private citizen, the evidence gathered which forms a basis for the arrest must also be available to a private citizen. The appellate court in O’Connor, and the majority in the instant case, fail to realize that the admissibility of evidence and the validity of an arrest are two separate and distinct issues. In order for a police officer’s extraterritorial arrest to be valid, it must fall within the scope of section 107 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 3). The evidence upon which the arrest is based, however, may be obtained through any and all legal means available to the police officer.
The O’Connor court relied primarily upon Florida law in reaching its conclusion. The Florida Appellate and Supreme Courts have created a doctrine referred to as “under color of office.” Under the “under color of office” doctrine, “officers who act outside their jurisdiction, but not in fresh pursuit, may investigate and gather evidence only through the use of their own senses and through the voluntary cooperation of citizens; they may not employ the power or color of their office either expressly or by implication in order to gather evidence or ferret out criminal activity not otherwise observable.” (State v. Phoenix (Fla. App. 1982), 428 So. 2d 262, 266 n.2.) This doctrine, which the majority accepts by implication, unnecessarily limits the evidence-gathering capability of a police officer outside his jurisdiction and has potentially wide and dire implications for law enforcement. A police officer should be allowed to gather evidence through any and all legal methods at his disposal and base a “citizen’s arrest” upon this evidence.
Finally, I disagree with the majority’s conclusion that it is the use of a radar gun by a police officer outside of his geographical jurisdiction which invalidates and taints an otherwise valid citizen’s arrest. Radar guns are available to the general public. Any citizen may buy and use one. Thus, if a private citizen had engaged in the same method of surveillance as Officer Beyer and made a citizen’s arrest, the arrest would be legal and upheld under Illinois law. The majority opinion does not dispute that proposition. The fact that most citizens do not possess radar guns is of no import. If Officer Beyer had utilized a stopwatch or a wristwatch to clock the defendant rather than using a radar gun, would the majority be able to assert that the use of a stopwatch or a wristwatch was an impermissible assertion of police authority? It is not likely. However, a radar gun is merely a mechanical device to measure speed. A stopwatch or wristwatch, also mechanical devices, can be applied to the same ends.
With all due respect, the initial premise of the majority opinion is grounded on Florida quicksand and nothing else. A survey of other jurisdictions discloses no support for the so-called “color of office” doctrine which would prevent law enforcement officials from using the powers of their office to gather evidence. Beyond that, the ratiocination by which the majority reaches its ultimate conclusion is difficult to follow. The seizure upon the radar gun as a unique instrumentally of police authority is factually incorrect since radar guns are available for purchase and use by private citizens without restriction. Moreover, as the radar gun is a mere timing device, it deserves no special status above that of a stopwatch or wristwatch, also mechanical devices which are available to all citizens. The singling out of the radar gun is thus an artificial and legalistic distinction. Finally, it seems incongruous to reduce a police officer’s power of arrest below that of a mere citizen.
Other than an unexpressed annoyance with police speed traps, which most fair-minded citizens resent, the basis for the majority’s decision is difficult to understand. The appellate court below, however, expressed the fear that a contrary ruling “would allow a municipality to carry out radar surveillance almost anywhere in the State.” (207 Ill. App. 3d at 421.) Certainly, few would welcome the specter of roving village policemen setting up speed traps all over the State. So far as I am informed, however, that situation has not occurred, at least to any observable extent. Should it occur, however, and should it prove to be an annoyance to the motoring public, the General Assembly could easily remedy that intrusion with a short and simple amendment to either the criminal code or the motor vehicle code. The point here is that the perceived potential problem is legislative and not judicial.
For the reasons given, I respectfully dissent from the decision of the court.
telephone interview with Illinois State Police, Division of Administration (Feb. 5, 1992). (James Milbrandt, bureau chief of the Management and Information Bureau, Illinois State Police, estimates that with 2,100 State policemen, approximately 400,000 motor vehicle citations will be issued per year. Out of this number, a little more than half will be for speeding violations. In 1990, 203,830 speeding tickets were issued by State policemen.)
Telephone interview with Illinois Municipal League (Feb. 5, 1992).
Illinois Association of Park Districts, Illinois Park and Recreation Professional & Agency Directory (1991-92).
Bureau of Identification, Illinois State Police, Crime in Illinois (1990).
Bureau of Identification, Illinois State Police, Crime in Illinois (1990).
Telephone interview with Jack Goggin, chief deputy clerk, office of the circuit clerk of Cook County, Aurelia Pucinski, clerk (Feb. 7, 1992). (Revenue from traffic fines and costs for the year 1990 for Municipal District 1 of the Cook County courts (City of Chicago) amounted to $18,159,000. While consolidated figures are not available for the State as a whole, extrapolation of the Chicago figures, as estimated by Judge Wayne R. Anderson, formerly supervising judge of the traffic center of Municipal District 1 of the circuit court of Cook County, now United States district judge, Northern District of Illinois, indicate State revenue from traffic fines and costs of approximately $75 million.)