Defendant was found guilty by a jury of driving a motor vehicle in Delaware on March 23, 1962, while under the influence of alcohol, in violation of 21 Del.Code, § 4111(a). Defendant has moved for a new trial claiming that the evidence presented against him at the trial should have been suppressed because his arrest was illegal.
On March 23, 1962, defendant was returning to his home in Claymont, Delaware, from his place of work in Chester, Pennsylvania. Officer Fidullo, of Linwood Township police in Pennsylvania, saw defendant drive through a flashing red light in Linwood without stopping and immediately "gave chase". Defendant traveled at a high rate of speed and on several occasions weaved back and forth across the middle line in the road. Officer Fidullo was unable to stop defendant in Pennsylvania and pursued him into Delaware, where he reached defendant after he stopped for a traffic light, approximately one-half mile south of the Pennsylvania state boundary line. In Delaware, defendant had failed to stop for a stop sign and was also driving in excess of the speed limit. After Fidullo reached defendant, he asked him to return to Linwood, Pennsylvania, but defendant refused; whereupon Fidullo radioed the Pennsylvania authorities, who, in turn, notified the Delaware State Police. Before the Delaware state policeman arrived on the scene, Fidullo ordered defendant out of his car; and he testified at the trial that defendant was not free to leave, and that he would have restrained him if he had attempted to do so. When a Delaware state policeman arrived, at approximately 2:45 A.M., he asked Officer Fidullo if he would sign a warrant for defendant's arrest. Fidullo agreed to do so. Defendant was taken to Troop headquarters and given a sobriety and an intoximeter test. After 4:00 A.M., Fidullo signed the warrant for defendant's arrest for driving under the influence of alcohol in Delaware.
During the trial, defendant moved to suppress any evidence obtained after Fidullo had stopped him, claiming that Fidullo's apprehension of the defendant was unlawful and thus the evidence against him inadmissible.
A private person is given no statutory authority to make an arrest without a warrant for a motor vehicle violation in this State. See 21 Del.Code, § 701, and 11 Del.Code, § 1904(a). However, at common law a private person could make an arrest without a warrant for an offense committed in his presence which amounted to a breach of the peace; see State v. Mobley, 240 N.C. 476, 83 S.E.2d 100, 104-106; cf., State v. Dennis, 2 Marv. 433, 43 A. 261; or which threatened a breach of the peace.
The authority to arrest without a warrant for a motor vehicle violation is controlled by 21 Del.Code § 701. A citizen is not named in the class of individuals so authorized. See dictum in State of Delaware v. Leonard Murphy
In this case, the right of the out-of-state police officer to make an arrest was mentioned for the first time after the trial. Prior to the arrest, Fidullo believed he had the right to pursue the defendant across the Delaware state line and believed he had the right to arrest him for a motor vehicle violation. When he discovered that he had no such right, he relied after trial on his right to arrest as a citizen for a breach of the peace or a threatened breach of the peace based on the driving conduct of the defendant. In reality, Fidullo detained this defendant for a motor vehicle offense and not because of any breach of the peace or any contemplated breach. As a citizen, he was without authority to arrest the defendant for a motor vehicle violation, since such authority is limited to those individuals named in Title 21, Del.Code § 701. Consequently, the arrest being in violation of the statute, the conviction must fall, since the evidence presented was obtained as a result of an illegal arrest. The evils which could arise from the indiscriminate arresting of other citizens by private individuals for reasons deemed by them to be sufficient, makes it necessary that such arrests be restricted to the terms of Section 701 and not extended or broadened by judicial construction.
It may be advisable for the Legislature to enact legislation which would permit fresh pursuit into this State and arrest by out-of-state police officers for motor vehicle violations and to lay down rules by and under which citizens of this State may be arrested by private citizens. However, this is the sole province and responsibility of the Legislature.
Motion for new trial granted.
"The defendant first points out that the person who made the arrest had no right to do so. The State contends that a citizen's arrest was made, admitting that the arrest was made by one who was not a `peace officer' at the time and place the arrest was made within the meaning of 11 Del.C. § 1901. The State's contention in this connection is of doubtful validity. 21 Del.C. § 701 specifically names those classes of persons who may make arrests for violations of the statutes pertaining to the operation of motor vehicles within this State without a warrant. The arrest here was made by one who did not belong to any of the classes set forth in the above cited statute. No evidentiary question is presented, however, and therefore, the arrest question is insignificant and for this reason I make no ruling upon it."