State v. Hennessee , 232 Kan. 807 ( 1983 )

The opinion of the court was delivered by

Herd, J.:

This is an appeal by the State from an order dismissing the case because of improper arrest. The issue arose in the following fashion. On June 1, 1981, a complaint was filed in the district court of Pratt County charging Debbie Hennessee with the theft of a microwave oven in violation of K.S.A. 21-3701. Based on this complaint a warrant for Hennessee’s arrest was issued the same day.

The appellee lived in Stafford County. The Pratt County sheriff, Ray McGuire, traveled from Pratt County to Hennessee’s residence in Stafford County and arrested her with warrant in hand. Present at the time of the arrest were Gary Pettijohn, an agent for the KBI, and Stafford County Sheriff Bill Christy. McGuire had previously called Christy and requested him to meet McGuire at Hennessee’s residence. It is undisputed McGuire made the actual arrest. Appellant’s counsel also conceded at oral argument McGuire was not in fresh pursuit of Hennessee and that Sheriff Christy did not request McGuire’s assistance.

Hennessee was taken into custody and formally charged with theft, K.S.A. 21-3701, and later burglary, K.S.A. 21-3715. Prior to trial, defense counsel moved the charges against appellee be dismissed because the Pratt County sheriff had no authority to make the arrest in Stafford County. After a hearing on the issue the trial court dismissed the action.

Did the trial court err in dismissing the complaint on the grounds the Pratt County sheriff acted beyond his authority? This case involves the interpretation of two statutes. First, K.S.A. 19-812 states:

“The sheriff, in person or by his undersheriff or deputy, shall serve and execute, according to law, all process, writs, precepts and orders issued or made by lawful authority and to him directed, and shall attend upon the several courts of record held in his county, and shall receive such fees for his services as are allowed by law.”

More specifically, K.S.A. 22-2401a provides:

“(1) Law enforcement officers employed by consolidated county law enforcement agencies or departments and sheriffs and their deputies may exercise their powers as law enforcement officers anywhere within their county and also may exercise such powers in any other county when in fresh pursuit of a person.

“(3) In addition to the areas where law enforcement officers may exercise their powers pursuant to subsection (1) or (2), law enforcement officers may exercise their powers as law enforcement officers in any area outside their normal jurisdiction when a request for assistance has been made by law enforcement officers from the area for which such assistance is requested.”

The State relies on K.S.A. 19-812 for the proposition the Pratt County sheriff was acting within his authority when he arrested Ms. Hennessee. Admittedly the statute places no limitation upon the territory in which a sheriff may operate. Further, the statute applies to the execution of an arrest warrant since “process” refers to a “warrant, writ, order, mandate or other formal writing, issued by some court, body or official having authority to issue process . . . .” State v. Wagoner, 123 Kan. 586, 588, 256 Pac. 959 (1927). See also State v. Lamb, 209 Kan. 453, 468, 497 P.2d 275 (1972), overruled on other grounds, State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978), where the court, citing the statute, upheld the execution of a search warrant in Rourbon County by Johnson County sheriff s officers.

The enactment of K.S.A. 22-2401a in 1977, however, changes things. There a specific limitation was placed on the extraterritorial exercise of power by law enforcement officers. This statute, instead of K.S.A. 19-812, is operative here for two reasons. First, where there is a conflict between two statutes the latest legislative expression controls. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 338, 624 P.2d 971 (1981). Second, in State, ex rel., v. Dreiling, 136 Kan. 201, 14 P.2d 644 (1932), the court recognized that a specific limitation on a general statute like K.S.A. 19-812 would control. In denying a rehearing of the case the court, through Justice Burch, succinctly stated:

“In the statute defining the authority of constables the territory within which a constable may act is twice specifically limited to the county. [Citation omitted.] The court held this territory may not be enlarged except by a statute of enlargement, and R.S. 62-605 does not authorize a constable to go beyond the confines of his county to make an arrest except in what amounts to fresh pursuit. It is contended in a petition for rehearing that a sheriff has no more authority to go outside the county to serve criminal process issued by a justice of the peace than a constable.

“The statute defining the authority of sheriffs contains no limitation similar to that contained in the statute relating to constables, and grants general authority to execute process issued and delivered to him. [Citation omitted.] Because there is no territorial limitation on the authority of a sheriff to execute a warrant of arrest, the contention is not well founded.” pp. 201-02.

If K.S.A. 22-2401a is the applicable statute the dispositive question then becomes whether Sheriff McGuire was acting within the scope of that statute when he arrested Ms. Hennessee. Pursuant to K.S.A. 22-2401a there are only two instances in which a sheriff may exercise his powers outside his county: (1) when he is in “fresh pursuit” of a person, or (2) when a request for assistance has been made by law enforcement officers from the area for which such assistance is requested.

As previously recited it is conceded Sheriff McGuire was not in “fresh pursuit,” nor was his assistance requested by Sheriff Christy when he arrested Ms. Hennessee. Therefore, the exceptions to the general rule that a sheriff may not exercise his powers outside his county do not apply.

It is clear Sheriff McGuire acted beyond the statutory authorization of K.S.A. 22-2401a.

The judgment is affirmed.