*1 Dakota, Appellant, of South STATE MacDONALD, Respondent. D.
No. 12087.
Supreme Court South 30, 1977.
Dec. Gen., Atkinson, Atty. Asst.
Judith A. Janklow, Pierre, appellant; J. William Gen., Pierre, on the brief. Atty. Arlie J. Brende and Steven W. Sanford Cadwell, Falls, & for re- Braithwaite Sioux spondent.
MORGAN, Justice. an the state of trial appeal
This is finding de- court’s that the arrest The issue before this fendant was invalid. can is make Court whether a person valid arrest of a outside munic- probable there ipal jurisdiction when present person has commit- cause in violation of ted a misdemeanor The trial court found the arrest statute. any previous Or- unlawful ordered of Revocation be rescinded. We der verse. the Chief of Police March
Brandon, received radio stating that highway patrolman call from a over his CB radio report had heard a he approximately was in the ditch car County Brandon on Road two miles west of scene, Being the closest officer to up- found a car investigated *2 627 on, right lights person guilty in the ditch with its its of any breach of the peace, or defendant, engine running, and the any violation state, of the laws of the MacDonald, the sitting behind wheel of the ordinances of the municipality. vehicle. In the absence specific statutory of Based on the statements and actions authority, it is a well general the defendant which indicated to the Chief principle, jurisdictions, in most that a public intoxicated, that he the was defendant was police particular officer for a municipality DWI, under a placed charge arrest on of has no power official to arrest offenders of violation SDCL 32-23-1. The Chief cor- beyond the jurisdiction territorial of the rectly stated to the defendant his municipality for which he serves.1 Lacking twice, and both rights times the official power the authorities gen defendant refused to take the test. erally hold that he does have the same 2,1975, A hearing was held on May which power of arrest as that conferred on a determined that the driver’s license of the private citizen.2 defendant should be revoked for failure to hold, however, We the police chief of comply with the implied consent laws. On made a valid arrest at the scene of the 14, 1976, January novo, at a trial de the accident for an offense committed in his circuit court found for the state and upheld presence. Under the provisions of SDCL revocation. January 23-22-14, et seq., private person may petitioned defendant the court for rehear- arrest' another for a public offense commit- ing on the grounds that the arrest was ted or attempted presence, in his and may invalid. rehearing, On the the trial judge search him for weapons offensive on his agreed. person; but only recourse under penalty The state has delegated part of its sover- of a misdemeanor person, is to take such eign power to the municipalities under without unnecessary delay, magis- before a SDCL 9-29-1 so that municipalities may trate or deliver him to a peace officer. power jurisdiction to exercise all authorized purposes over all territory The record discloses that at the time within the corporate limits and within one purported arrest the was mile of the corporate limits. One sitting car, behind the steering wheel of the above, authorized purposes, as stated is the with the running motor and the headlights regulation of the police of the municipality on. He clearly was physical actual con under conjunction SDCL 9-29-2. In with trol of the provisions vehicle within the SDCL police per- shall 32-23-1; and, influence, SDCL if under the form such duties as prescribed by shall be susceptible to arrest aby private citizen. the governing body preservation for the For this reason disagree with the find the peace. powers SDCL 9-29—18. The ings of the trial the arrest of the court that policemen are set forth under SDCL respondent was “unlawful.”3 9-29-19 provides which officer question The then is whether the authority to execute and serve all war- rants power and the Chief of Police for chemical pursue and arrest any person was fleeing justice part from valid under 32-23. Provisions of any SDCL state, of the they may any arrest the chemi- clearly require Zdovc, 481, App. physical 1. State v. 106 Ohio 151 3.The issues of control of the vehicle (1958); Hubbard, implication N.E.2d 672 Smith v. 253 of the consent stat- case, (1958). opposed opera- Minn. 91 N.W.2d ute in such 756 See also 5 to actual vehicle, presently pending p. tion of the before Am.Jur.2d Arrest § having this Court in other cases not been raised argued at the trial level nor briefed nor in this 23-22-2; O'Kelly (Iowa) 2. State v. 211 case, only we confine ourselves to the issues (1973); Martin, People N.W.2d 589 225 Cal. raised herein and our decision is not to be App.2d Cal.Rptr. (1964). 36 924 way precedent construed as either on the is- sues not raised. (dissenting). Justice test to be cal analysis hav- a law enforcement I would of the trial affirm decision person. It such arrested ing lawfully “law enforce- “Peace officer” and court. intend did not legislature obvious that to describe officer” were intended implement any citizen to authorize e., duly appointed or elect- person, same i. *3 by consent statute provision jurisdictional acting ed officer within analy- a chemical to as statute. Citizen demanding by submission limits MacDonald; citi- by the arrest of Therefore, as indicated SDCL Westre made sis test. for a chemical request Westre zen made respondent’s test must law made test. It was not a of a law been enforcement officer who had made a lawful valid. officer in order to be enforcement city police- I arrest. do not believe “peace enforce who loses his status as a offi- defines law man “lawa enforce- cer” retains his status as officer of employee or “any ment * * circumstances. ment officer” under these subdivision any political or 23-3- Certainly, under SDCL the definition and prevention responsible who law required to receive persons 27 of those the enforcement of crime and detection training expand the does not enforcement traffic laws of highway criminal city policeman. jurisdiction of chief state.”4 We hold that fits definition, give he can this so warning. To hold would
implied consent to in South Dakota every
not citizen allow warning arrest as
give people they to
civilians, it allow enforce but would law legitimate private who make officers implied consent give arrests to
citizen to meet the re warning. The arrest had STATE of South Plaintiff arrest; but, quirements private of a citizen Respondent, and Police once those requirements, it met legally entitled qualified Chief was and
give warning. him the MULLINS, David Defendant Corwin Appellant. record
Since the discloses citizen’s arrest Police Westre made a valid No. 12135-a-FGD. at and at the scene of the accident Supreme Court requested time properly test, submit to a chemical Oct. Argued 1977. verse the trial court for and remand to Decided Dec. 1977. accordance with this entry judgment opinion. J., J., WOLLMAN,
DUNN, C. FOSH-
EIM, Judge, concur. Circuit J., dissents.
FOSHEIM, sitting for Judge, Circuit
PORTER, J., disqualified. change, not ber 1977. The does enforcement officer The definition a law of the definition. has been amended new criminal code affect substance 22-1-2(20) which became effective Octo-