The opinion
Jim Hannah, Justice, dissenting. This court in Henderson v. State, 329 Ark. 526 , 953 S.W.2d 26 (1997) cited Perry v. State, 303 Ark. 100 , 794 S.W.2d 141 (1990), where we stated the blackletter law:
A local peace officer acting without a warrant outside territorial limits of the jurisdiction under which he holds office is without official power to apprehend an offender, unless he is authorized to do so by state statute. (Citing authority.)
This court in Henderson went on to state:
In Perry, this court also listed the four instances where the General Assembly had delegated the authority for law enforcement officers to make an arrest outside of their jurisdictions: (1) “fresh pursuit” cases under Ark. Code Ann. § 16-81-301 (1987); (2) when the police officer has a warrant for arrest, as provided by Ark. Code Ann. § 16-81-105 (1987); (3) when a local law enforcement agency requests an outside officer to come into the local jurisdiction and the outside officer is from an agency that has a written policy regulating its officers when they act outside their jurisdiction, as stated in Ark. Code Ann. § 16 — 81—106(3)—(4) (Supp. 1995); and (4) when a county sheriff requests that a peace officer from a contiguous county come into that sheriff’s county and investigate and make arrests for violations of drug laws pursuant to Ark. Code Ann. § 5-64-705 (Repl. 1993). Perry, supra.
None of these four instances applies to this case. Each instance is based in a statute. The majority creates a new and distinct instance for a warrantless arrest by a law-enforcement officer outside his or her territorial limits, brushing aside the requirement that such arrests may only be made when authorized by statute. The majority then recommends that the General Assembly adopt the newly created instance. The General Assembly has not authorized such an arrest. It should not in any event because such an arrest does not satisfy the requirements of probable cause. By adopting an exception that the mere presence of a local officer makes an otherwise illegal arrest legal, the majority reduces the constitutionally mandated requirement that the arresting officer have knowledge sufficient to support probable cause to a mere formality.
The State admits Detective Frost was utterly devoid of any authority to make the arrest as a police officer. The majority agrees. Yet, as the majority recites, it was Frost who spoke to Colston and took him into custody. The only officer present who had territorial authority to make the arrest was the unnamed and unidentified Pulaski County Sheriffs deputy. Although Frost testified he told the Pulaski County Sheriffs Department of the crime, there is no evidence that this unnamed officer had any knowledge of the crime alleged, let alone knowledge sufficient to constitute probable cause. The deputy never testified. Frost testified the deputy was there for his safety because he had one subject in custody and needed a deputy there to make contact with the other subject still in the house. There is no evidence the unnamed deputy made the arrest. The facts most favorable to the majority are that the deputy arrived, went to the door with Frost, and then stood within the Colston home after Frost detained Colston to insure Colston remained there while Frost went outside to speak with Garris and Colston’s mother. Such facts are woefully inadequate to support even speculation that the Pulaski County Sheriff s deputy had knowledge sufficient to support probable cause. Additionally, there is no evidence he participated in the arrest in any meaningful way. The arrest was admittedly made by a police officer outside his jurisdiction and admittedly in violation of the statutes allowing such an arrest. Thus, the arrest is admitted to be illegal.
The Fourth Amendment to the federal constitution includes the right to be free from arrest without probable cause. Lambert v. City of Dumas, 187 F.3d 931, 935 (8th Cir. 1999). Probable cause exists if the facts and circumstances within the arresting officer’s knowledge were sufficient to warrant a prudent person’s belief that the suspect had committed or was committing an offense. United States v. Magness, 69 F.3d 872, 874 (8th Cir. 1995). In Arkansas, a local police officer acting without a warrant is without official power to apprehend an offender unless he is authorized to do so by State statute. Arnett v. State, 342 Ark. 66 , 27 S.W.3d 721 (2000); Henderson v. State, 329 Ark. 526 , 953 S.W.2d 26 (1997); Perry v. State, 303 Ark. 100 , 794 S.W.2d 141 (1990); Logan v. State, 264 Ark. 920 , 576 S.W.2d 203 (1979); Jackson v. State, 241 Ark. 850 , 410 S.W.2d 766 (1967) (citing, Ker v. California, 374 U.S. 23 (1963)). Thus, Frost was without authority to arrest Colston as a police officer. However, the majority finds that because the unnamed local deputy was present, the arrest was legal, citing Logan v. State, supra. The holding in Logan does not reach so far as the majority asserts. The court in Logan found that the local officer participated in the arrest. As is shown by the testimony cited in that opinion, the local officer was involved in the arrest. He participated and had knowledge of the crime. There was evidence of far more than the mere corporeal presence of a local officer. People v. Wolf, 635 P.2d 213 (Co. 1981) is instructive. In that case, the Colorado Supreme Court noted that their statute was intended to limit peace officers, in exercising their arrest powers and their law enforcement efforts, to the territorial limits of their authority and to require that local peace officers be advised and participate in the extraterritorial law enforcement activities of other peace officers. Under Wolf, the local officer must be advised and must participate. This must be so because there must be an officer present with authority to arrest who possesses the requisite knowledge of the crime or the arrest fails for a lack of probable cause. This is what is lacking in the present case. Frost made it clear he sought the Pulaski County deputy “due to officer safety.” There is no evidence the local officer had any knowledge whatever. Frost then goes on to testify that he arrested and spoke with Colston. There is no evidence the unnamed deputy was advised of anything or participated in the arrest other than being present and providing for the safety of Frost. This opinion is in error and seriously undermines the longstanding and constitutionally mandated requirement of probable cause before a warrantless arrest may be made.
In, Henderson, supra, we held that the statement given after the illegal arrest had to be excluded even though Henderson was given his Miranda rights. The instant case is a Henderson situation. Investigating police officers in the Benton Police Department clearly had probable cause for Colston’s arrest before his statement was given, but, comparable to Henderson, the arresting officer had no authority to make an arrest in a different jurisdiction. Also, as in Henderson, Colston made a statement after his illegal arrest and after he had been given his Miranda rights.
In Henderson, we stated the policy consideration behind our decision was formed in Perry v. State, supra: I also note that the argument might be made that if Frost could not arrest as a peace officer he could as a private citizen. The problem is that his knowledge comes to him by his superior. Frost had no personal knowledge and was not involved in the subject investigation. He was asked to stop at the Colston home by his superior because he happened to be nearby on his way to Cabot. Ark. Code Ann. § 16-81-106 (d) provides, “A private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony.” In Partin v. Meyer, 277 Ark. 54 , 639 S.W.2d 342 (1982), this court discussed private-citizen arrest for a felony. Under the common law, a private citizen could arrest someone who had committed a felony in his or her presence. Partin, supra. In Partin, this court stated:
The traditional concept of territorial jurisdiction for peace officers is a sound one since a local community is best served by the requirement that local officers familiar with local neighborhoods make arrests in the community. People v. Hamilton, 666 P.2d 152 (Colo. 1983). If such a concept were not followed, a Pocahontas policeman could make an arrest in Paragould, a Texas Ranger could make an arrest in Fordyce, and a K.G.B. agent could make an arrest in Fort Smith. Such a “practice would lead to more violence than it would suppress.” McCaslin v. McCord, 116 Tenn. 690 , 94 S.W. 79 (1906).
Probable cause means that the arresting person must “reasonably suspect” the other person of having committed a felony. “It is enough that the circumstances which the actor knows or reasonably believes to exist are such as to create a reasonable belief that there is a likelihood that the other has committed the felony. In such cases, the public interest in the punishment of a felon requires the other’s arrest for the purpose of securing his custody pending investigation.” Restatement of the Law, Torts (2d), 119, Comments (1965).
In Partin, at issue was civil liability for false imprisonment where a motel patron was allegedly accused of stealing $600 from a cash drawer in the lobby. The motel owner denied he had accused her. In any event, this court discussed probable cause for an arrest if it had occurred and noted that the defendant was present at the crime scene, that he knew the theft had occurred, that he knew where he kept the cash, and that he knew the plaintiff had passed through the area alone and had had the opportunity to steal the money. The discussion is helpful in this case because it shows that for a warrant-less arrest by a private person there must be some basis in knowledge other than simply being told something occurred; otherwise an arrest might arguably be made based on a story in the news on television. Further, it would also be troubling if a peace officer could assert he was making the arrest as a private person under the facts of this case. It would, in effect, nullify the territorial requirements placed on peace officers by statute and allow arrests anywhere simply by making a claim they were arresting as private citizens rather than as a peace officer.
For the foregoing reasons, I respectfully dissent.
BROWN and Imber, JJ., join in this dissent.