THE STATE OF TEXAS

We granted the State Prosecuting Attorney's sole question for review which asks,

Must law enforcement officers intend to detain an intoxicated driver within their jurisdiction in order to later detain him outside their jurisdiction under the "hot pursuit" doctrine?

The Supreme Court "ha[s] long recognized that . . . "hot pursuit" cases fall within the exigent-circumstances exception to the warrant requirement." Steagald v. U.S., 451 U.S. 204, 218 (1981). A warrantless search or arrest may be authorized when the police are in hot pursuit of a suspect. U.S. v. Santana, 427 U.S. 38, 42-43 (1976)("The District Court was correct in concluding that 'hot pursuit' means some sort of a chase."). Such hot pursuit also involves an immediate or continuous pursuit of the suspect from the scene of a crime. Welsh v. Wisconsin, 466 U.S. 740, 753 (1984)("[T]he claim of hot pursuit is unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of a crime."). The Supreme Court has also said that there is no hot pursuit in the arrest of someone who was not in flight. Johnson v. U.S., 333 U.S. 10, 16 n.7 (1948)("[W]e find no element of 'hot pursuit' in the arrest of one who was not in flight, was completely surrounded by agents before she knew of their presence, . . ., and who made no attempt to escape."). In Vale v. Louisiana, 399 U.S. 30, 35 (1970), the Court found that a search was illegal in part because officers "were not in hot pursuit of a fleeing felon."

The "hot pursuit" doctrine involves a chase and pursuit of, and flight by, the suspect; i.e. an immediate continuous pursuit of and some effort by the suspect to escape. In this case, there was no chase, only an observation of appellant for the purpose of training the reserve officer. There was no showing that appellant made any effort to elude, flee, or escape from the officers. Webster's Encyclopedic Unabridged Dictionary (1989) defines "follow" as "to move behind in the same direction." "Pursue" means "to follow in order to overtake, capture. . . ; chase." ⁽¹⁾ Id. "Chase" means "to pursue with intent to capture . . .; hunt." Id. Chasing certainly involves following, but following does not necessarily mean chasing. In this case, the officers were following, but only with the intent to move behind appellant in the same direction. Any intent to capture was not acted upon until the officers were outside their jurisdiction. They were thus not in hot pursuit, having the present intent not to overtake or capture, but only to follow for a time. Neither was appellant in flight.

While "hot pursuit" does not necessarily involve "an extended hue and cry about the public streets," it does indeed involve "some sort of a chase." Santana, supra, 427 U.S. 42-43. "Hot pursuit" indicates that there is some exigency about the chase. In this case, there was certainly no exigency; the officers chose to follow and observe appellant rather than stop him immediately, and appellant did not flee nor attempt to elude them.

The facts of this case do not demonstrate a "hot pursuit" situation. The court of appeals was correct in concluding that "there was no 'pursuit' initiated within the officer's jurisdiction." Yeager v. State, 23 S.W.3d 566, 576 (Tex. App. - Waco 2000). Because there was no "pursuit," there could be no "hot pursuit,"and the State Prosecuting Attorney's request for relief should be denied. Because the majority does not do so, I respectfully dissent.

Johnson, J.

Filed: April 2, 2003

En Banc

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1. The dictionary additionally includes definitions of pursuit in other contexts, specifically the act of striving, as in pursuit of happiness, and an activity, as a hobby or vocation, regularly engaged in.