Justices Fairhurst, J. Johnson, Stephens and Wiggins and Chief Justice Madsen in majority and Justices * Alexander, Owens, C. Johnson and Chambers dissenting
How later courts described this case
- Justices Fairhurst, J. Johnson, Stephens and Wiggins and Chief Justice Madsen in majority and Justices * Alexander, Owens, C. Johnson and Chambers dissenting
- tribal officer had no authority to arrest non-Indian outside reservation, even though he had pursued her from inside the reservation; limited Montana authority over non-Indians was unavailable outside reservation boundaries
- twice granting reconsideration and withdrawing previous decisions, the second time after new justice replaced previous majority author on panel
- “We accept unchallenged findings of fact as verities on appeal.”
Written by the judges who cited it.
The opinion
Alexander, J.
¶22 (dissenting) — I would affirm Loretta Eriksen’s conviction on the basis that Tribal Officer Mike McSwain’s brief detention of Eriksen at a location outside the boundaries of the Lummi Indian Reservation was a valid citizen’s arrest.
¶23 It is well settled that under the common law an individual citizen can effect an arrest of a person who is committing a felony or a misdemeanor in the citizen’s presence if the offense is a breach of the peace. 7 State v. Malone, 106 Wn.2d 607 , 609 n.1, 724 P.2d 364 (1986) (citing State v. Miller, 103 Wn.2d 792 , 698 P.2d 554 (1985); State v. Gonzales, 24 Wn. App. 437 , 604 P.2d 168 (1979)). In my view, a peace officer should be able to exercise the same authority outside of that officer’s jurisdiction, provided the officer does not exploit the color of his or her office in doing so. Indeed, in Malone , we indicated that a Kootenai County sheriff’s deputy who had followed a speeding truck from Idaho into Washington State in a marked police car with lights and siren activated had authority to arrest the driver of the truck under a citizen’s arrest theory.
¶24 The situation here is very similar to that in Malone , the record showing that Tribal Officer McSwain stopped and detained Eriksen slightly outside his jurisdiction after he observed her driving within the tribal jurisdiction in a manner that caused him reasonably to believe that she was driving while under the influence of intoxicants. Driving *517 under the influence (DUI) is a gross misdemeanor. RCW 46.61.502.1 believe we should join courts in other jurisdictions in recognizing DUI as a breach of the peace. E.g., Heck v. State, 507 S.W.2d 737 (Tex. Crim. App. 1974); State ex rel. State v. Gustke, 205 W. Va. 72, 81 , 516 S.E.2d 283 (1999). Such a ruling would be consistent with the Restatement (Second) of Torts § 116 (1965), which defines “breach of the peace” as “a public offense ... causing or likely to cause an immediate disturbance of public order.” Those who drive while under the influence characteristically do so in an erratic manner that carries with it the potential to cause serious injury or death to other drivers or pedestrians. Such conduct clearly disturbs public order.
¶25 Even though it is my view that Tribal Officer McSwain observed the commission of an offense that constitutes a breach of the peace, I must still confront the question of whether his actions are barred from qualifying as a citizen’s arrest under the “color of office” doctrine. Under that doctrine a peace officer is prohibited from utilizing his official position to gather evidence. Even though Washington courts have not yet confronted this issue, I find the analysis of the Supreme Court of Appeals of West Virginia in the Gustke opinion persuasive. The court there said that an officer is barred by the doctrine only from “collecting] evidence that a private citizen would be unable [to] gather.” Gustke, 205 W. Va. at 81 ; see also State v. Phoenix, 428 So. 2d 262, 266 (Fla. Dist. Ct. App. 1982). In Gustke , a uniformed off-duty officer, who was outside his jurisdiction, was driving home from work when he observed a car being driven erratically and weaving on the road. After using his siren to stop the car, the officer detained the driver until an officer from the proper jurisdiction arrived. The Gustke court found that since the officer had not investigated beyond merely asking for the driver’s identification, he did not violate the under color of office doctrine. Here, like the situation in Gustke , McSwain observed Eriksen’s driving pattern before stopping her and he ceased *518 his investigation of the possible DUI after he checked Eriksen’s identification and determined that she was not a tribal member and that her vehicle was outside the boundary of the Lummi Reservation. Any observations McSwain made about Eriksen’s behavior after the stop and up to the time he checked her identification could have been made by a private citizen as easily as they were made by McSwain. Under these facts, the color of office doctrine should not serve as a bar to McSwain’s authority to effect a valid citizen’s arrest.
¶26 I would affirm Eriksen’s conviction on the basis that McSwain’s extraterritorial stop and detention of Eriksen was a valid citizen’s arrest.
Pursuant to RCW 9A04.060, provisions of the common law relating to the commission of crime are applicable where they are not repugnant to the state constitution or statutes.