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Zilke v. State: Is There Jurisdiction To Make An Arrest?

Posted by Aaron J. Wolff | Jun 28, 2016 | 0 Comments

The Georgia Supreme Court recently decided the case of Zilke v. State. The case dealt with the power of campus police outside of their authorized jurisdictions. In addition, the court also discussed the jurisdictional limits of other law enforcement officers.

In May of 2013, Kennesaw State University (KSU) police officer Decari Mason arrested Bajrodin Zilke for DUI. At the time Mason spotted Zilke, he was not on campus. Mason had just dropped off an arrestee at the Cobb County Adult Detention Center and was traveling back to KSU on a county road. Zilke was weaving and did not have his headlights or taillights on. Mason pulled Zilke over and had him blow into an alcohol sensor. The sensor detected alcohol and Mason placed Zilke under arrest. Zilke took a breath test and it registered a blood alcohol content of .08.

Zilke was subsequently “charged with two counts of driving under the influence, failing to maintain lane, and operating a vehicle without headlights.” He then “moved to suppress evidence of the breath test, arguing that Mason lacked jurisdiction to arrest him because, without dispute, the traffic stop did not occur on or near KSU property.” His motion was granted by the trial court, but reversed on appeal. The Georgia Court of Appeals held that “a POST-certified campus police officer is authorized to make arrests for traffic offenses committed in his presence though outside the territorial limits of the campus at issue.” Zilke appealed this ruling and the Georgia Supreme Court took up the case.

The Supreme Court looked at the authorization given to campus police by statute. The statute, OCGA §20-3-72, says that “campus police officers ‘shall have the power to make arrests' on campus and within 500 yards of campus.” Relying on this statute, the court stated, “[w]e agree that Officer Mason had no authority to effect a custodial arrest of appellant outside the jurisdiction conferred by OCGA §20-3-72.”

The appellate court had relied on a different statute, OCGA §17-4-23, to find jurisdiction. The Supreme Court did not agree jurisdiction was appropriate under this law, writing “OCGA § 17-4-23 cannot reasonably be construed to authorize Officer Mason's arresting appellant.” The court pointed out that the statute does not authorize custodial arrests, but rather arrest by citation. If a “person fails to answer the citation by appearing in court” then an arrest can be made “pursuant to a warrant.” The court noted that the purpose of the law was to “give law enforcement officers the discretion to write a citation in lieu of making a custodial arrest for motor vehicle violations.”

The court then stated, "we disapprove of Glazner v. State to the extent that case and its progeny hold OCGA § 17-4-23 (a) authorizes a law enforcement officer, including a campus police officer, to make a custodial arrest outside the jurisdiction of the law enforcement agency by which he is employed." The court notes that under another statute, law enforcement can make custodial arrests for crimes committed in their presence, but points out that this does not expand the jurisdiction of the campus police.

In addition, the court states that Mason, who is POST-certified, does not have any greater jurisdiction by virtue of having the certification. The certification “simply means the officer has met the minimum requirements to be a “peace officer” in this state.”

The state argued that Officer Mason was authorized to make a citizen's arrest. The court found this argument unpersuasive, noting that this “does nothing to preclude the trial court from suppressing the evidence in this case,” since private person is not authorized to “engage in any sort of law enforcement investigation.” The court goes on to point out that the City of Marietta police did show up on the scene at one point and had they stayed they could have taken Zilke into custody. But the court states, the police still would have had to “take him to a judicial officer who was authorized to receive an affidavit and to issue a warrant,” if Mason was acting as a private person.

The court then reversed the appellate court decision and upheld the evidence suppression granted by the trial court.

In my years of practice as a Seattle DUI attorney, I have handled numerous cases involving campus police making arrests outside of their jurisdiction.  For example, the University of Washington Police Department making an arrest off campus.  Unlike the case in Georgia, the University of Washington has a mutual aid agreement with other law enforcement agencies which gives them authority to make arrests off campus.  For people arrested by University of Washington Police on campus, they will be charged by the King County Prosecutor's office and their DUI charge will be filed in the King County District Court.

About the Author

Aaron J. Wolff

A former DUI prosecutor, Aaron Wolff has over 18 years of experience in representing people accused of DUI and is recognized as one of the leading defense lawyers in Washington State. His relentless and passionate advocacy has lead to superb ratings and outstanding reviews from former clients.


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