State ex rel. State v. Gustke
In State ex rel. State v. Gustke, 205 W. Va. 72, 516 S.E.2d 283 (W. Va. 1999), a uniformed police officer was driving his marked police vehicle home. Id. at 286. Outside the city limits, he saw a car being driven erratically by the defendant. Id. The officer contacted the county sheriff's office who had jurisdiction and went on to stop the vehicle himself. Id.
Thereafter, a sheriff's deputy arrived and took over. The defendant was arrested for DUI. Id. The district court dismissed the drunk driving indictment because the police officer who made the stop was outside his agency's territory and did not have jurisdiction there. Id. at 286-87. The state petitioned its supreme court for a writ of probation, which was granted. Id. at 287.
The court acknowledged that the police officer, who made the initial stop, did not have the authority to make the arrest where he did. Id. at 289. However, the court added that "it has often been recognized that a police officer who is without official authority to make an arrest may nevertheless make the arrest if the circumstances are such that a private citizen would have the right to arrest either under the common law or by virtue of statutory law." Id.
The court concluded that "because the actions of the officer constituted a valid common law citizen's arrest, the circuit court erred in suppressing all evidence flowing from the officer's stop of the defendant." Id. at 293.