Crossing the Border Crosses a Line: Assessing the Constitutionality of Unauthorized Extraterritorial Arrests

Abstract

Perhaps surprisingly, the Supreme Court has never resolved whether an unauthorized arrest across state lines violates the Fourth Amendment as an unreasonable seizure. In light of the recent spike in legislation purporting to make conduct originating in other states illegal, delimiting the power to make extraterritorial arrests has become more urgent – law enforcement agents in State A may be tempted to follow suspects into State B (or, indeed to track down suspects who have never set foot in State A) to ensure enforcement of State A’s criminal laws.

Before and after the Framing, individuals subject to such extraterritorial seizures successfully sued the arresting law enforcement officials based on state law tort principles. Indeed, Article IV’s Extradition Clause presupposes that law enforcement officials cannot cross state lines to effect an arrest. In light of incorporation of the Bill of Rights and given that state law enforcement officers are now largely immune from such tort suits, the question whether such unauthorized arrests violate the Fourth Amendment has become more pressing. The issue arises today predominantly in determining whether to exclude evidence uncovered incident to such arrests. The lower courts are badly split. Many hold that violation of a Fresh Pursuit agreement does not make an arrest unreasonable within the meaning of the Fourth Amendment, despite the violation of territorial sovereignty, and many hold as well that, even if the arrest was illegal, law enforcement authorities retain the same power to arrest in other states as would any private citizen witnessing a felony.

We take issue with both positions. First, we argue largely based on history that unauthorized extraterritorial arrests should be considered per se unreasonable under the Fourth Amendment. Moreover, even if the history were not so clear, the interests in privacy and dignity of the individual arrested outweigh the government’s interests because the governmental interests are in fact divided – the law enforcement interests of one state are negated by the interests in territorial sovereignty of the other. Second, although law enforcement authorities should be able to make citizen arrests in other states when on vacation, to permit them to rely on citizen arrest authority in pursuit of a suspect across state lines would thwart the very premise underlying the territorial principle, which confines law enforcement authorities to investigate crime and make arrests only within their own jurisdictions. Finally, given the need to deter extraterritorial arrests and the fact that such cross border incursions are deterrable, courts should apply the exclusionary rule, subject to limited exceptions, to exclude from trial any evidence uncovered in the course of the unlawful arrest.

Keywords: Fourth Amendment, criminal law enforcement, searches and seizures