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9 August 2000

JUSTICE GALASSO delivered the opinion of the court:

Defendant, Vytenis P. Kirvelaitis, was charged with two countsof driving while under the influence of alcohol (625 ILCS 5/11--501(a)(1), (a)(2) (West 1998)), and he was also ticketed forspeeding (625 ILCS 5/11--601(b) (West 1998)). Defendant's drivingprivileges were subsequently suspended, and he filed a petition torescind the statutory summary suspension of his driving privileges.The trial court denied the petition and defendant appealed. Onappeal, defendant argues that his suspension should be rescindedbecause the officer who arrested him was outside his jurisdictionat the time he arrested defendant, and the officer lacked any statutory authority to make the arrest outside the officer'sjurisdiction. We reverse.

At the hearing on the petition to rescind, Officer JerrySymonds, a police officer with the Village of Woodridge in Du PageCounty, testified that he was on duty on May 23, 1999, atapproximately 1:40 a.m. when he saw a car traveling southbound onLemont Road at a high rate of speed. Defendant was driving the carOfficer Symonds observed, and Officer Symonds was outside ofWoodridge when he saw defendant. Officer Symonds testified thatdefendant was "perhaps" in Woodridge at the time he first observedhim. Specifically, Officer Symonds testified that he "[did not]know if [defendant] was in town or out of town. It was thatclose." Officer Symonds watched as the car got closer to him, andhe activated his radar when no other cars were around defendant'scar. At the time the radar was activated, defendant was not in anymunicipality.

The radar showed that defendant was driving 67 miles per hour,and the posted speed limit was 45 miles per hour. Officer Symondsmade a U-turn, activated his emergency equipment, droveapproximately 80 miles per hour to catch defendant, and eventuallystopped defendant approximately a half a mile away in Cook County. After the stop, Officer Symonds notified his dispatch and conductedan investigation. Based on this investigation, Officer Symondsplaced defendant under arrest for driving while under the influenceof alcohol.

The trial court denied defendant's petition and found thatOfficer Symonds properly arrested defendant. The court statedthat, assuming defendant was outside Woodridge, Officer Symonds wasacting as a private citizen when he arrested defendant forspeeding, and Officer Symonds only made the arrest after heobserved defendant traveling at a high rate of speed. The trialcourt noted that after making that observation Officer Symondsactivated his radar to determine defendant's precise speed. Thistimely appeal followed.

Defendant argues that Officer Symonds lacked the authority toarrest him because Officer Symonds was outside his jurisdiction atthe time he made the arrest and the officer did not have anystatutory authority to make the arrest outside his jurisdiction.The State contends that the arrest was a proper citizen's arrest.Specifically, the State argues that the arrest was proper becauseOfficer Symonds first observed defendant driving at a high rate ofspeed, an observation that a private citizen could make, and thenused his radar to determine defendant's precise speed. The Stateclaims that an officer's use of the powers of his office afterobserving criminal activity does not invalidate the arrest.

There are several bases upon which an officer may havejurisdiction to arrest a defendant. Section 7--4--7 of theIllinois Municipal Code (Municipal Code) (65 ILCS 5/7--4--7 (West1998)) provides that a police district is "[t]he territory which isembraced within the corporate limits of adjoining municipalitieswithin any county in this State." Clearly, an officer has theauthority to arrest a defendant within his own police district,and, under certain circumstances, an officer has the power toarrest a defendant when the defendant is outside the officer'sjurisdiction. For example, a police officer has the authority toarrest a defendant when the defendant is in a municipality that isin the same county as the officer's jurisdiction. 65 ILCS 5/7--4--8 (West 1998); People v. Marino, 80 Ill. App. 3d 657, 661-62(1980). In addition, a police officer may arrest a defendant if heis investigating an offense that occurred within the officer'sjurisdiction and a temporary investigation or arrest outside theofficer's jurisdiction is made pursuant to the initialinvestigation. 725 ILCS 5/107--4(a--3)(1) (West 1998). An officeralso may make an arrest outside his jurisdiction if the officer,while on duty, becomes aware of the commission of a felony ormisdemeanor violation under Illinois law. 725 ILCS 5/107--4(a--3)(2) (West 1998). Finally, an officer outside his jurisdictionmay make an arrest as a private citizen. A private citizen mayarrest another when the citizen has reasonable grounds to believethat an offense other than an ordinance violation has beencommitted. 725 ILCS 5/107--3 (West 1998).

Here, under section 7--4--7 of the Municipal Code, OfficerSymonds would have the authority to arrest defendant in Woodridge,Officer Symonds's jurisdiction. The testimony revealed thatdefendant was "perhaps" within Officer Symonds's jurisdiction atthe time the officer observed defendant driving at a high rate ofspeed. The trial court never ruled on whether defendant was withinWoodridge at the time Officer Symonds observed him driving at ahigh rate of speed, and we do not believe, based upon the officer'sequivocal testimony, that this court can conclude that defendantwas within Woodridge. Thus, we believe that Officer Symonds had noauthority to arrest defendant based on an argument that defendantwas within Woodridge.

The State argues that, under People v. Leinweber, 234 Ill.App. 3d 748 (1992), Officer Symonds did properly arrest defendantbecause Officer Symonds observed defendant in Woodridge. Leinweberprovides that an officer may make an investigatory arrest outside the officer's jurisdiction if the officer has reasonable grounds tobelieve that the defendant committed the offense within theofficer's jurisdiction. Leinweber, 234 Ill. App. 3d at 750. Here,in contrast to Leinweber, Officer Symonds did not testify that hebelieved defendant was in Woodridge at the time he observeddefendant driving at a high rate of speed. Rather, Officer Symondsstated that he did not know whether defendant was in Woodridge ornot. Thus, we believe that the State's reliance on Leinweber lacksmerit.

Under section 7--4--8 of the Municipal Code, Officer Symondscould have the authority to make an arrest outside his jurisdictionand in another municipality as long as the arrest is made in amunicipality within the same county as Officer Symonds'sjurisdiction. See Marino, 80 Ill. App. 3d at 661-62 (sections 7--4--7 and 7--4--8 of the Municipal Code have been construed asextending the power of local police officers to adjoiningmunicipalities that are within the same county). Here, OfficerSymonds's jurisdiction is in Woodridge, which is in Du Page County.Officer Symonds testified that he first observed defendant in anarea that was "perhaps" in Woodridge. Officer Symonds activatedhis radar and concluded that defendant was speeding when defendantwas not in any municipality, and defendant was finally pulled overin Cook County. Based on the unequivocal evidence, Officer Symondschose to stop defendant when defendant was in no municipality atall or in a municipality outside Du Page County. Under eithercircumstance, Officer Symonds did not have the authority to arrestdefendant pursuant to section 7--4--8 of the Municipal Code.

We must note that our decision would be quite different if theevidence affirmatively showed that defendant was in a municipalityin Du Page County at the time Officer Symonds activated his radarand arrested defendant. The State had the burden of proving thatdefendant was in an area where Officer Symonds had jurisdiction toarrest defendant, and the evidence failed to provide that OfficerSymonds acted within his own jurisdiction or an extension of hisjurisdiction when he activated his radar and arrested defendant.

Under section 107--4(a--3)(1) of the Code of CriminalProcedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/107--4(a--3) (1) (West 1998)), an officer may arrest a defendant if theofficer is investigating an offense that occurred in the officer'sjurisdiction, and the officer performed a temporary investigationor arrest outside the officer's jurisdiction and pursuant to theinitial investigation. Here, as discussed above, we do not believethat this court can conclude that the offense occurred withinWoodridge. The officer failed to provide affirmative testimony onthat issue, and we cannot conclude, based on the evidence, thatdefendant was in Woodridge when Officer Symonds first observed himdriving at a high rate of speed.

Section 107--4(a--3)(2) of the Code of Criminal Procedureprovides that an officer on duty may make an arrest outside of theofficer's jurisdiction if the officer observes, in anotherdistrict, the commission of a felony or misdemeanor violation underIllinois law. Here, defendant was arrested for speeding. Thestatutory provisions on speeding do not indicate what class ofcrime speeding is; however, section 11--202 of the Illinois VehicleCode (625 ILCS 5/11--202 (West 1998)) provides that all offensesunder this particular chapter, unless otherwise indicated, arepetty offenses. Thus, because speeding is not a misdemeanor orfelony violation, Officer Symonds had no authority to arrestdefendant under section 107--4(a--3)(2) of the Code of CriminalProcedure.

We must note that while it was eventually discovered thatdefendant was driving while under the influence of alcohol, which,here, is a misdemeanor violation, that information only becameknown after defendant was arrested. Specifically, no evidence waspresented that Officer Symonds observed defendant drivingerratically or in a manner that would indicate that defendant wasdriving while under the influence of alcohol. Thus, we refuse toconclude that Officer Symonds had the authority to arrest defendantunder section 107--4(a--3)(2) of the Code of Criminal Procedurewhen it was eventually discovered, after defendant was pulled over,that defendant was driving while intoxicated.

Finally, we must determine whether Officer Symonds had theauthority to arrest defendant as a citizen making a citizen'sarrest. Section 107--3 of the Code of Criminal Procedure providesthat any person may arrest another when the arresting person hasreasonable grounds to believe that an offense other than anordinance violation has been committed. A police officer actingoutside his jurisdiction retains all of the rights of a privatecitizen, and these rights include the right to make a citizen'sarrest. People v. Lahr, 147 Ill. 2d 379, 382 (1992). When anofficer is outside his jurisdiction, he does not possess anygreater right to arrest than the right given to private citizens.People v. Gutt, 267 Ill. App. 3d 95, 98 (1994). Thus, a policeofficer outside his jurisdiction may not use the powers of hisoffice, such as a radar gun, to make the arrest when those samepowers are not available to the public. Lahr, 147 Ill. 2d at 383.Nevertheless, when an officer's own observations provide asufficient basis to arrest the defendant, an officer subsequentlymay use the powers of his office to make the arrest. People v.Ciesler, 304 Ill. App. 3d 465, 471 (1999).

The first issue that needs to be addressed is whether OfficerSymonds, acting as a private citizen, could use a radar gun todetermine that defendant was speeding and to make an arrest basedsolely on the information he received from the radar gun reading.Here, the use of the radar gun took the arrest outside the purviewof a citizen's arrest because private citizens generally do nothave access to radar guns. Lahr, 147 Ill. 2d at 383. Thus, theuse of the radar gun was an assertion of Officer Symonds's policeauthority, and once the officer used the powers of his office tomake the arrest as a citizen, without first observing criminalactivity, the arrest was invalidated. Lahr, 147 Ill. 2d at 383-84.

The question then becomes whether Officer Symonds actuallyobserved defendant speeding before he used his radar gun. Thetestimony showed that Officer Symonds observed defendant driving ata high rate of speed. A high rate of speed could very well mean 45miles per hour, which was the posted speed limit. The problem isthat Officer Symonds never testified that he observed defendantspeeding. We would be presented with a very different situation ifOfficer Symonds testified that he had experience as a trafficofficer, knew when cars were speeding, and observed, based on hisexperience, that defendant was speeding. Without this type ofevidence, we cannot say that Officer Symonds saw defendant speedingand then used his radar only after making this visual observation.

Defendant argues that the arrest was not a proper citizen'sarrest because, among other things, Officer Symonds droveapproximately 80 miles per hour in a 45-mile-per-hour speed zone inorder to overtake defendant. Defendant claims that Officer Symondscould not act in this manner to catch defendant because an officeroutside his jurisdiction does not possess any greater right toarrest than the right given to private citizens. See Gutt, 267Ill. App. 3d at 98. Defendant argues that a private citizen couldnot speed in order to catch a speeder and, thus, Officer Symonds,acting as a private citizen, could not speed in order to arrestdefendant. We agree. Officer Symonds, who was outside hisjurisdiction, acted beyond the rights given to private citizenswhen he exceeded the speed limit in order to arrest defendant.

For these reasons, the judgment of the circuit court of DuPage County is reversed.

Reversed.

INGLIS and GEIGER, JJ., concur.