Zilke v. State: Can University Police Arrest People Who Are Not On Campus?

The Supreme Court of Georgia recently decided Zilke v. State, a case concerning how much power campus police have to make an arrest when they are outside of their jurisdiction. The central question of the case was whether the Kennesaw State University (KSU) police had the authority to arrest an individual on suspicion of driving under the influence when that individual was not on or around the university at the time he was spotted by police. The Supreme Court sided with appellant, Bajrodin Zilke, deciding that the power of the KSU police is limited to its statutorily defined jurisdiction.

Zilke was pulled over in the early morning of May 5, 2013, by POST-certified KSU officer Decari Mason. Mason was returning to campus after dropping off another individual at the Cobb County Adult Detention Center when he spotted Zilke. Zilke was "driving without activated headlights or taillights and 'severely failing to maintain lane.'" Mason stopped him and observed that Zilke "smelled of alcohol, had bloodshot, watery eyes, [and] was unsteady on his feet." Zilke admitted to Mason that he had drank two beers. Mason then had Zilke take a roadside breath test, which Zilke failed. He arrested the intoxicated man and later had him take the "state-administered chemical breath test on the Intoxilyzer 5000 . . . which revealed a blood alcohol level of 0.08." Zilke was subsequently charged with "two counts of driving under the influence, failing to maintain lane, and operating a vehicle without headlights."

Zilke moved to have the results of his breath tests suppressed, contending that "Mason lacked jurisdiction to arrest him because, without dispute, the traffic stop did not occur on or near KSU property." The trial court agreed with Zilke and granted the motion. However, the Court of Appeals reversed this decision, holding that "a POST-certified campus police officer is authorized to make arrests for traffic offenses committed in his presence though outside the territorial limits of the campus at issue."

The Supreme Court disagreed with the decision of the Court of Appeals for several reasons. First, the jurisdictional statute applicable to the KSU police "states that campus police officers 'shall have the power to make arrests' on campus and within 500 yards of campus." Mason was clearly not in his jurisdictional territory when he arrested Zilke. The court then looked at another statute that the State had offered as support for Mason's actions. That statute is "a criminal procedure statute, [that] only authorizes an arrest 'by the issuance of a citation' if a person commits a motor vehicle violation within the law enforcement officer's presence." The court notes that while the statute does permit officers to issue citations, it does not permit a custodial arrest unless the person who was cited "fails to answer the citation by appearing in court and, then, any apprehension of the person must be made pursuant to a warrant." Thus, the court did not agree that this provision provided a basis of authority for Mason. The court stated that "[n]othing in the statute's history indicates that the legislature ever intended OCGA § 17-4-23 to allow officers to arrest traffic violators outside the jurisdiction of their respective law enforcement agencies."

The court looked at another statutory section that does permit an officer to make an arrest "without a warrant if '[t]he offense is committed in such officer's presence or within such officer's immediate knowledge.'" However, the court notes that there is still nothing in the statute that expands the territory of campus police. Nor does the court find it significant that Mason is POST-certified, noting that "[b]eing POST-certified simply means the officer has met the minimum requirements to be a 'peace officer' in this state." The certification does not extend an officer's jurisdiction.

Finally, the court refutes the State's contention that the Mason could effect an arrest as a private person. The court notes that the most a private person can do when arrested another citizen is "deliver appellant to a judicial officer or 'deliver [appellant] and all effects removed from [appellant] to a peace officer of this state.'" A citizen does not have the power to conduct a law enforcement investigation, such as conducting field sobriety tests or administering breath tests. The court notes that the local police did come to the scene but left without taking custody of Zilke. The court stated that "[h]ad the City of Marietta police stayed, they could have assumed custody of appellant and then they would have been required to take him to a judicial officer who was authorized to receive an affidavit and to issue a warrant."

Finding none of the arguments put forth on appeal compelling, the Georgia Supreme Court reversed the ruling of the Court of Appeals. The court stated, "[t]he trial court did not err when it determined that Officer Mason did not have any authority to arrest appellant beyond 500 yards of the KSU campus." Contact your DeKalb County DUI Lawyer today.