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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                            This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
November 24, 2004
A party may file with the Supreme Court a
Cornelia G. Clark                                                                          petition to review an adverse decision by the
Clerk of Court of Appeals                                                                  Court of Appeals.   See WIS. STAT. § 808.10
and RULE 809.62.
Cir. Ct. Nos.   03TR021769
Appeal No.                                                                                 04-1902
03TR021770
STATE OF WISCONSIN                                                                         IN COURT OF APPEALS
                                                                                           DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,
V.
LARISSA A. HUTCHINSON,
DEFENDANT-RESPONDENT.
APPEAL  from an  order  of  the  circuit  court  for  Racine  County:
STEPHEN A. SIMANEK, Judge.   Reversed and cause remanded with directions.
¶1                                                                                         BROWN, J.1      This case arises out of an extrajurisdictional stop
made  by  an  off-duty  police  officer  who  suspected  Larissa  A.  Hutchinson  of
driving while intoxicated.   The State justified the stop as a “citizen’s arrest” by the
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(g) (2001-02).




No.   04-1902
officer, but the trial court held that the stop was unreasonable.   It suppressed the
evidence obtained subsequent to the stop and ordered the case dismissed.   We
disagree and reverse.   We remand with directions that the complaint be reinstated.
¶2                                                                                       We will begin with a short primer of the law involved, and then we
will apply the facts to the law.   The idea that citizens are responsible for policing
their communities dates back to before the Norman Conquest of 1066, where free
male subjects were expected to constrain felons.   Katherine Marsh, Playing Police,
LEGAL AFFAIRS, July/August 2004, at 16, 16.   This circumstance continued up
through  late  nineteenth-century  America  as  police  forces  were  virtually
nonexistent.    Id. at  16-17.    Thus, the  “citizen’s arrest” is based upon a strong
common-law  foundation.    Certainly,  times  have  changed  with  the  advent  of
institutionalized police forces, but in many states the common-law rule has not
been  abrogated.    See  Nicholas  L.  Lopuszynski,  Father  Constitution,  Tell  the
Police to Stay on Their Own Side:    Can Extra-Jurisdictional Arrests Made in
Direct   Violation   of   State   Law   Ever   Cross   the   Fourth   Amendment’s
“Reasonableness” Line?, 53 DEPAUL L. REV. 1347, 1358 (2004).   In Wisconsin,
it is alive and well.   See State v. Slawek, 114 Wis. 2d 332, 335, 338 N.W.2d 120
(Ct. App. 1983).
¶3                                                                                       In  general,  citizens  may  arrest  when  a  felony  or  misdemeanor
effecting a breach of the peace is committed in their presence.   City of Waukesha
v. Gorz, 166 Wis. 2d 243, 246-47, 479 N.W.2d 221 (Ct. App. 1991).   While a
citizen can only arrest for breaches of the peace committed in his or her presence,
the right to arrest exists “while [the breach of peace] is continuing, or immediately
after it has been committed, or while there is a continuing danger of its renewal.”
5 AM. JUR. 2D Arrest § 57 (2004) (footnotes omitted.)   RESTATEMENT (SECOND)
OF TORTS § 119 (1965) is in accord with this rule and provides:
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No.   04-1902
[A] private person is privileged to arrest another without a
warrant for a criminal offense
….
(c) if the other, in the presence of the actor, is committing
a breach of the peace or, having so committed a
breach  of  the  peace,  he                                                               [or  she]  is  reasonably
believed by the actor to be about to renew it.
¶4                                                                                        A comment to this section explains that this citizen’s arrest privilege
“was confined in the early English cases to the detention of a person who was
breaking  the  peace  in  the  actor’s  presence,  or  was  reasonably  suspected  of
intending to renew a breach of the peace so committed .…”   Id. at cmt. n.   Thus,
while the general rule requires a breach of the peace to be committed in the
citizen’s  presence,  an  equally  important  consideration  is  whether  the  citizen
reasonably believes there is a continuing danger that the offender intends to repeat
or resume the breach of the peace recently committed.
¶5                                                                                        Against this backdrop is the advent of the twentieth- and twenty-
first-century  police  force.    Toward  the  end  of  the  nineteenth  century,  newly
established  police  forces  assigned  police  officials  to  patrol  within  specific
territories.   Lopuszynski, supra, at 1355.   Along with formalizing police forces
and exact police borders, the law correspondingly recognized the common-law
doctrines of citizen’s arrest and hot pursuit because police could not officially
arrest outside of their territory.   Id.   Thus, the law in Wisconsin and elsewhere has
evolved such that law officers may make citizens’ arrests outside their jurisdiction
in the same manner as a private citizen.   Slawek, 114 Wis. 2d at 337-38.   When
reviewing a citizen’s arrest by a police officer, we review it under an objective
standard—whether a private citizen could have made the arrest.  See id. at 335.
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No.   04-1902
¶6                                                                                       Having  stated  the  general  law,  we  now  review  the  testimony.
Sergeant Frank Johnson testified that he is a city of Racine police officer.   On
November 29, 2003, at about 2:37 a.m., Johnson was returning home, in uniform,
from an off-duty job.   He was driving his private automobile.   Johnson observed
the vehicle in front of him swerve in and out of its designated lane and also go left
of center.   He felt this was dangerous because people were out on the street and he
believed such action could have killed someone.   No one appears to dispute that he
was in the town of Mt. Pleasant, outside the jurisdiction of the City of Racine
Police Department, when he observed this activity.
¶7                                                                                       Initially, Johnson blew his horn and flashed his lights.   He followed
the vehicle through several stoplights, hoping the lights would change so that he
could get out and confront the driver.   When a light did turn red, Johnson jumped
out of his vehicle, ran up to the vehicle in front of him and made contact with the
driver, Hutchinson.   He testified that he asked for her keys and she reluctantly
gave them to him.   At this point, a sheriff’s deputy pulled up and, ultimately, a Mt.
Pleasant officer did as well.   Johnson testified that when he walked up to the car,
he stepped ahead of the operator’s window so that she could see his uniform.
¶8                                                                                       A   sheriff’s   deputy   also   testified.                               On   cross-examination,
Hutchinson’s attorney asked:
And in your report, would you dispute that you stated that,
in your report, “When I asked Sergeant Johnson how many
times the vehicle did this,” which relates to deviating from
the  lane,                                                                               “and  where  this  occurred,  Sergeant  Johnson
advised that it happened many times, and was practically
continuous from State Street to when he took the keys from
Hutchinson on Newman Road”?
The deputy agreed that this is what Johnson had told her.   The deputy also testified
that she noticed a strong odor of alcohol on Hutchinson’s breath, her eyes were
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No.   04-1902
glassy and she appeared to have trouble focusing.   She also appeared to be slightly
disoriented.   Hutchinson failed her field sobriety tests and was issued a citation for
operating while intoxicated.
¶9                                                                                          Hutchinson, for her part, testified that she noticed a car following her
excessively  closely,  honking  and  flashing  lights.    She  testified  that  she  was
attempting to keep an eye on that car.   It was not a marked police car.   At an
intersection, the occupant of the other car approached her, pounded on her window
and demanded her keys.   At first, she could not see who it was and was reluctant
to comply.   She did not see that it was an officer although he said he was and
produced a badge.   Eventually, she complied.   On cross-examination, she admitted
that she had been drinking that evening and was unsure about how much she had
to drink.
¶10    Applying  the  facts to  the  law,  the  State  argues that this case  is
closely  analogous  to  Gorz.    There,  a  town  of  Brookfield  police  officer  was
transporting two persons to a city of Waukesha destination when he observed an
automobile cross the center line several times, all within the city.    Gorz,  166
Wis. 2d at 245.   The officer activated his squad lights and initiated a stop.   Id.   He
approached the vehicle while in full uniform and called for Waukesha police to
facilitate the stop.   Id.   The trial court validated the stop based on the “citizen’s
arrest” doctrine.   Id.   This court affirmed.   Id. at 244.   We rejected Gorz’s claim
that a citizen’s arrest may only be made by a police officer if the officer is dressed
like a citizen and is using an unofficial vehicle to make the stop.   Id. at 246.   We
reasoned:
Police officers may cease to be police officers when they
leave their jurisdiction, but they do not cease to be persons.
Even  though  they are  considered  as  mere  persons,  they
have been trained in criminal law enforcement and have
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No.   04-1902
special expertise beyond the normal citizen.   It makes no
sense that, as citizens, they should be prohibited from using
their expertise or the equipment they may properly avail
themselves of.
Id. (citation omitted).
¶11    Gorz  also  argued  that  a  breach  of  the  peace  may  only  include
commission of  a felony or  a serious misdemeanor.    Id.    He claimed that an
operating while intoxicated situation did not qualify.   Id. at 247.   We disagreed
and wrote that operating a vehicle while intoxicated threatens public security and
involves violence.   Id.   “As such, it amounts to a breach of the peace.”   Id.
¶12    The trial court acknowledged Gorz, but distinguished it.   A major
difference relied upon by the trial court was that the officer in Gorz initiated the
stop by use of a squad car with flashing squad lights while Johnson initiated the
stop using his own private vehicle—an unmarked car—and the flashing lights
from his car did not announce police presence and authority.   In the trial court’s
estimation, with so many instances of people impersonating officers, Hutchinson
was justified in ignoring the flashing of lights and tooting of the horn when she
was “alone in her car at two in the morning.”   In fact, the trial court remarked that
while Hutchinson did roll down the window for Johnson, the court doubted it
would have done the same thing under those circumstances.   The court concluded
that using a private vehicle to initiate the stop, in the manner Johnson employed,
“take[s] it one step too far.”
¶13    The  trial  court  was  also  critical  of  Johnson  for  stopping  the
Hutchinson car in the middle of traffic, resulting in two cars sitting in the lane of
traffic, which the court deemed “about as dangerous as someone who is deviating
in a lane.”   The trial court opined that
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No.   04-1902
[T]he proper way to do this—because everyone has cell
phones now—you call  911. You get a description of the
vehicle.                                                                                 You  get  a  license  plate.   You  maintain
surveillance and wait until the officers get there, who are
empowered to make the arrest.
I think that’s what should have been done here.
This is especially so, the trial court thought, where there were virtually no other
cars on the roadway, it was 2:30 in the morning and there was no imminent danger
of an accident.
¶14    Some  of  the  trial  court’s  remarks  appear  to  take  issue  with  the
citizen’s arrest doctrine.   We get this from the court’s comments about numerous
instances of people impersonating police officers, sometimes making victims of
ordinary citizens. Certainly, the trial court’s view is not groundless. With the
predominance of cell phones in today’s world, it appears that the justification for
the common-law citizen’s arrest doctrine is less tenable.    Also, there are plenty of
examples where citizens have not only overstepped the bounds of reasonableness,
but they have also risked breaking the law, offending propriety and creating free-
for-alls.   Marsh, supra, at 17.   Perhaps, this is why states such as South Carolina
have abrogated the common law at least so far as they pertain to nonfelonies.   See
State v. McAteer, 532 S.E.2d 865, 865 (S.C. 2000).   As we said above, however,
there has been no abrogation of the common-law citizen’s arrest in Wisconsin.
¶15    That said, at its core, the trial court’s rationale is less a discourse on
the  merits  of  common-law  citizen’s  arrest  and  more  a  commentary  on  the
reasonableness of the officer’s actions.   As the trial court impliedly stated, it saw
its duty as engaging in a balancing act—weighing the interest in protecting society
from  criminal  behavior  and  protecting  society  from  extreme,  dangerous  and
unbridled police behavior.     The trial court obviously believed that flashing the
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No.   04-1902
lights of a private automobile at another vehicle in front, honking the horn, and
following the car closely, all at 2:30 in the morning, is an unreasonable and scary
way  to  address  a  concern  that  a  driver  may  be  operating  the  vehicle  while
intoxicated.
¶16    We certainly do not feel that the trial court’s rationale is unsound.   In
fact, the trial court’s view seems to be close to how Yale’s Professor Akhil Reed
Amar classifies Fourth Amendment jurisprudence.                                          “Professor Akhil Reed Amar
believes  that                                                                           [t]he  core  of  the  Fourth  Amendment  …  is  neither  warrant  nor
probable cause, but reasonableness.   He argues that reasonableness is not defined
by  probability:    Common  sense  tells  us  to  look  beyond  probability  to  the
importance of finding what the government is looking for, the intrusiveness of the
search, the identity of the search target, [and] the availability of other means of
achieving the purpose [pursued] ….”   Lopuszynski, supra, at 1372 (footnotes and
internal quotation marks omitted).   As we read the trial court’s decision, the court
was looking at the intrusiveness of Johnson’s actions in comparison to what he
was trying to do—stop someone who was deviating from the traffic lane.   The
court saw no impediment to securing a stop and obtaining the identity of the target
person by use of a different, less intrusive method.   Johnson obviously had a cell
phone  in  his  possession  because  he  called  dispatch  after  he  had  stopped
Hutchinson and retrieved her keys.    The trial court plainly thought Johnson’s
method to be too intrusive, too unbridled and too dangerous.
¶17    We begin our response with our standard of review:    Whether a
lawful citizen’s arrest occurred is a question of law we review independently.
Gorz, 166 Wis. 2d at 245.   We noted above that we apply this law objectively.   See
Slawek, 114 Wis. 2d at 335.   As we said earlier, this analysis requires us to look at
whether a breach of the peace was committed in the citizen’s presence.   Gorz, 166
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No.   04-1902
Wis.                                                                                       2d  at   246-47.  Another  consideration  is  whether  the  citizen  reasonably
believes that the offender intends to repeat or resume the breach.   See 5 AM. JUR.
2D Arrest § 57 (2004); RESTATEMENT  (SECOND) OF TORTS  § 119(c) and cmt. n
(1965).
¶18    The record is clear that there were people out on the street where the
incident unfolded.   A reasonable citizen could believe that the operator was in
danger of hitting someone.    In fact, Johnson testified that this was the major
consideration for his action.   Further, Johnson testified that at the time of the stop,
a vehicle was actually headed toward Hutchinson and Johnson in the opposite
direction.   So, this is not a situation where there was no element of danger to
others.
¶19    A second consideration is the fact that if the officer had used the cell
phone to call authorities and followed Hutchinson until squads converged, the risk
that an accident might occur in the meantime was still alive.   Just because it was
2:30 in the morning and there were few cars on the road does not mean that
Hutchinson’s impaired state was any less dangerous to herself or to some other
vehicle or pedestrian that may have come along Hutchinson’s route.
¶20    A  third  consideration  is  that  this  was  not  an  ordinary  citizen
attempting to meddle in the work of professional police.   This was a police officer.
Johnson was presumably trained in law enforcement and had special expertise
beyond that of a normal citizen.   For all that has been written about stops made
outside  an  officer’s jurisdiction,  the  training and expertise  do not stop at the
border.   We wonder what the claim would be if Johnson were driving his private
automobile and saw the errant driving within the city limits.   We doubt that the
analysis could or should change.
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No.   04-1902
¶21    Thus, as to whether Johnson’s actions can be considered reasonable,
Fourth Amendment “reasonableness” is defined objectively as whether a person
“of  reasonable  caution”  is  warranted  in  the  belief  that  the  action  taken  was
appropriate in light of the particular circumstances of each case and based on “the
facts available to the officer at the moment of seizure.”   Terry v. Ohio, 392 U.S. 1,
21-22  (1968).    We conclude that Johnson’s actions were not too arbitrary, too
extreme or too unreasonable.    Johnson’s response to Hutchinson’s driving was
such that a person of reasonable caution would believe that the action taken was
appropriate.   While it is true that Johnson was not in a squad car when the incident
occurred, his response was to protect society from Hutchinson’s driving in an
effective and efficient manner equal to using his cell phone.
¶22    So, while we certainly value the trial court’s consideration of the
issue and fully understand the trial court’s concerns, we conclude that Johnson
effectuated a valid citizen’s arrest under the facts in this case.   We reverse and
remand with directions that the complaint be reinstated.
By the Court.—Order reversed and cause remanded with directions.
                                                                                           This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                  (b)4.
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