Georgia Supreme Court: Police cannot make traffic arrests outside their jurisdictions

ATLANTA, Georgia (41NBC/WMGT) – The Georgia Supreme Court has ruled police officers across the state are no longer allowed to make traffic arrests outside their department’s jurisdiction.

The high court made the unanimous decision in favor of a Kennesaw State University student.  Justices say it was illegal for a campus police officer to stop him in 2013 and charge him with driving under the influence 500-yards off school property.

ZILKE v. THE STATE:
With an opinion today by the Georgia Supreme Court, police officers around the state may no longer make traffic arrests outside their department’s jurisdiction.  In today’s unanimous decision, written by Justice Robert Benham, the high court has reversed a Georgia Court of Appeals decision and ruled in favor of a man who argued that his arrest by a university police officer for Driving Under the Influence (DUI) was invalid because it occurred more than 500 yards off campus.

According to the facts of the case, in the early morning hours of May 5, 2013, Bajrodin Zilke was stopped and arrested on Powder Springs Road in Marietta by Officer Decari Mason, a “POST-certified” (Peace Officer Standards and Training Council) police officer employed by Kennesaw State University. It was dark and raining, and Mason was on his way back to the university after delivering another arrestee to the Cobb County jail when he noticed Zilke “severely failing to maintain lane” and driving without his lights on. After stopping and approaching Zilke, Mason observed that Zilke smelled of alcohol, had bloodshot and watery eyes, and was unsteady on his feet. Zilke told him he had drunk two beers. At Mason’s request, Zilke blew into an Alco-sensor, which registered positive for alcohol, at which time Mason arrested him. Zilke then submitted to a state-administered chemical breath test on the Intoxilyzer 5000, which revealed a blood alcohol level of 0.08 percent. In Georgia, the definition of legally intoxicated is a blood alcohol concentration of 0.08 percent or higher for those who are at least 21 and driving a regular passenger vehicle. Zilke was charged with two counts of DUI, failing to maintain lane, and operating a vehicle without headlights.

Zilke’s attorney filed a motion to suppress the breath test when the case goes to trial, arguing that the officer had lacked jurisdiction to make the arrest, as the offense had not occurred on, or even near, the university’s property. The trial court granted Zilke’s motion, based on Georgia Code § 20-3-72, which states: “The campus policemen and other security personnel of the university system who are regular employees of the system shall have the power to make arrests for offenses committed upon any property under the jurisdiction of the Board of Regents and for offenses committed upon any public or private property within 500 yards or any property under the jurisdiction of
the Board.”

However, on appeal, the Court of Appeals reversed the decision suppressing the evidence, citing another statute in the Georgia Code, § 17-4-23 (a), which states that a “law enforcement officer may arrest a person accused of violating any law or ordinance governing the operation…of motor vehicles by the issuance of a citation, provided that the offense is committed in his presence….The arresting officer shall issue to such person a citation which shall enumerate the specific charges against the person and the date upon which the person is to appear and answer the charges.” The Court of Appeals ruled that this statute applied in Zilke’s case, as the traffic violation occurred in the presence of the arresting officer. Relying on its 1984 decision in  Glazner v. State, the appellate court ruled that under § 17-4-23 (a), a POST-certified campus police officer is authorized to make arrests for traffic offenses committed in his presence, even outside the territorial limits of the campus. Zilke then appealed the Court of Appeals ruling to the state Supreme Court.
With today’s decision, the high court has overruled Glazner and subsequent rulings based on Glazner to the extent they hold that § 17-4-23 (a) authorizes any law enforcement officer, including a campus police officer, to make an arrest and take the person into custody “outside the jurisdiction of the law enforcement agency by which he is employed.”

“We agree that Officer Mason had no authority to effect a custodial arrest of appellant outside the jurisdiction conferred by § 20-3-72,” today’s opinion says. But he also lacked authority under § 17-4-23 (a), the opinion says.

“First, by its plain terms, § 17-4-23 (a), which is a criminal procedure statute, only authorizes an arrest ‘by the issuance of a citation,’” the opinion says. “The statute does not confer the ability to make a custodial arrest for a motor vehicle violation, unless that person fails to answer the citation by appearing in court and then, any apprehension of the person must be made pursuant to a warrant.”

“Indeed, the purpose of § 17-4-23 has never been to enlarge the territorial boundaries of the various law enforcement agencies in the state, but rather to give law enforcement officers the discretion to write a citation in lieu of making a custodial arrest for motor vehicle violations.”

Therefore, the “trial court did not err when it determined that Officer Mason did not have any authority to arrest appellant beyond 500 yards of the Kennesaw State University campus,” the opinion says. However, the Court notes that “suppression of evidence is an extreme sanction that is used only sparingly as a remedy for unlawful government conduct.” When there is a violation of a statute, the suppression of evidence is an appropriate sanction “only where the statute specifically provides for suppression as a remedy or the statutory violation implicates underlying constitutional rights such as the right to be free from unreasonable search and seizure,” the opinion says. However, on appeal, the State did not challenge the court’s suppression of evidence as error, nor did the trial court identify the legal ground on which it was excluding the evidence as a result of Mason violating § 20-3-72. Therefore, that aspect of the trial court’s order is not before the Supreme Court for review.

In a concurrence, Justice David Nahmias writes to emphasize that excluding evidence may not even be “an authorized remedy for such a violation,” and “there is a substantial question regarding whether it was proper for the trial court to suppress evidence as a remedy for the violation of § 20-3-72 that the court correctly found in this case.” The concurrence, joined by Justice Keith Blackwell, concludes that “this discussion should highlight the importance of considering the remedial element of motions to suppress evidence in future cases of this sort.”

Attorney for Appellant (Zilke): David Willingham of the Willingham Law Firm, P.C., and Bimal Chopra and Steven Cook

Attorneys for Appellees (State): Barry Morgan, Solicitor-General, Deborah Tatum, Dep. Chief Asst. Solicitor-General, and Mimi Scaljon, Asst. Solicitor-General