In the Court of Appeals, the appellant argued that his arrest was illegal because article 14.03 of the Texas Code of Criminal Procedure does not give the officers involved authority to make an investigative stop outside of their jurisdiction. In a lengthy opinion, the court held that the appellant was correct, and therefore, his arrest was illegal. Under an alternative theory offered by the State, the Court of Appeals also declared that the arrest was not valid under the doctrine of "hot pursuit." They reasoned that the police never initiated a pursuit within their jurisdiction. The court then granted the appellant's point of error concerning his pretrial motion to suppress.

The State Prosecuting Attorney brought a Petition for Discretionary Review to this Court. Its sole ground for review stated:

Must law enforcement officers intend to detain an intoxicated driver within their jurisdiction in order to later detain him outside their jurisdiction under the "hot pursuit" doctrine?

What the short answer to this question should be is: Sure. What the majority says instead is that the arrest was valid because the police officers had formed some "suspicion" about the appellant's conduct within their jurisdiction. The majority draws this conclusion from alternative language of Minor v. State, 219 S.W.2d 467 (Tex. Crim. App. 1949). This holding is pretty much of a stretch from "intend to detain," but it seems to be good enough for government work.

What the majority ignores is that the Court of Appeals had previously ruled that there was no pursuit by the police. The State Prosecuting Attorney did not ask us to decide whether the officers were involved in a hot pursuit of the appellant, rather only what mindset the officers needed to form while within their jurisdiction in order to legitimize the arrest outside their jurisdiction. The majority presumes that the officers were in hot pursuit, but that's a presumption that can't be considered absent a request by the State.

Judge Johnson's dissenting opinion does a good job of examining what has been considered to be "hot pursuit" in other cases. As you can see from her opinion, the actions of the officers and the appellant in this case fall short of the requirements necessary to make it a "hot pursuit." But, unfortunately we were never called upon to answer this question.

What the State had to show to validate this "hot pursuit"arrest is twofold: (1) an intent to detain within their jurisdiction, and (2) a concerted effort to apprehend the suspect before he left their jurisdiction. They got somewhat close on one element, but who's counting? But, all this aside, the majority still reverses the Court of Appeals on the State Prosecuting Attorney's question that has little consequence to the lower court's ultimate ruling that the police never engaged the appellant in a pursuit. This is not only a generous gift, but it basically violates our rules of procedural default. Therefore, I respectfully dissent.

Meyers, J.

Filed: April 2, 2003

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