Georgia Supreme Court: Officer outside jurisdiction cannot make custodial traffic arrest

ATLANTA — A law enforcement officer in Georgia may no longer take a motorist in a traffic violation into custody outside his or her jurisdiction following a decision announced Monday by the Georgia Supreme Court.

In a unanimous decision, the state’s highest court overturned a Court of Appeals decision, ruling that a motorist’s DUI arrest by a university police officer employed by Kennesaw State University was invalid because the stop and arrest occurred more than 500 yards from KSU.

In the case, attorneys for Bajrodin Zilke sought to have the results of an alcohol breath test administered by KSU Officer Decari Mason suppressed. According to the court report, early on the morning on May 5, 2013, Mason was returning to campus after dropping off an arrestee at the Cobb County Jail when he spotted Zilke driving erratically and without headlights on Powder Springs Road in Marietta.

Mason pulled Zilke over and observed that Zilke smelled of alcohol, was unsteady on his feet and had bloodshot, watery eyes. Zilke, the court release said, admitted to drinking two beers. Mason administered a breath test, which registered positive for alcohol, and arrested Zilke.

Georgia Code empowers campus policemen and security personnel who are regular employees of the University System of Georgia to make arrests for offenses committed on any property under the jurisdiction of the Board of Regents and on public or private property within 500 yards of USG property.

With the arrest made well outside that jurisdiction, a Superior Court judge agreed with Zilke’s motion to suppress the test evidence. That ruling was reversed by the Appeals Court, citing a 1984 case, Glazner v. State, which states an officer can make a traffic stop outside the officer’s jurisdiction if it is committed in the officer’s presence.

The Supreme Court overruled the Glazner decision to the extent of the making of custodial arrests. Justice Robert Benham, who wrote for the court, said the state law for police officers operating outside their jurisdiction does not permit custodial arrests. The criminal procedure statute, he wrote, “only authorizes an arrest ‘by the issuance of a citation.’ 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.”

Benham wrote that the statute’s purpose “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.”

The justice noted, however, that suppression of evidence is “an extreme sanction that is used only sparingly as a remedy for unlawful government conduct” that is appropriate “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.”

Attorneys for the state did not challenge the trial court’s decision to toss out the alcohol breath test evidence as an error and the trial court did not identify the legal grounds on which it was excluding the evidence, so that aspect of the trial court’s order was not reviewed, Benham wrote.

In a concurrence, Justice David Nahmias wrote to emphasize that excluding evidence may not 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 …”

He was joined in his concurrence by Justice Keith Blackwell, who concluded that “this discussion should highlight the importance of considering the remedial element of motions to suppress evidence in future cases of this sort.”