CROSSING THE BORDER CROSSES A LINE: ASSESSING THE
CONSTITUTIONALITY OF UNAUTHORIZED
EXTRATERRITORIAL ARRESTS
Harold J. Krent* and Nicole Jansma**
ABSTRACT
Perhaps surprisingly, the Supreme Court has never resolved whether an unau-
thorized arrest across state lines violates the Fourth Amendment as an unreason-
able seizure. In light of the recent spike in legislation purporting to make
conduct originating in other states illegal, delimiting the power to make extrater-
ritorial 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 seiz-
ures 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. Given the Bill of
Rights’ incorporation and state law-enforcement officers’ general immunity from
such tort suits, the question whether such unauthorized arrests violate the
Fourth Amendment has become more pressing. Today, the issue arises predomi-
nantly in determining whether to exclude evidence uncovered incident to such
arrests. The lower courts are badly split. Many hold that violation of a fresh-pur-
suit agreement, despite the violation of territorial sovereignty, does not make an
arrest unreasonable within the meaning of the Fourth Amendment. Many courts
also hold 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 unreason-
able under the Fourth Amendment. Moreover, even if the history were not so
clear, the arrested individual’s interests in privacy and dignity outweigh the gov-
ernment’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
* Professor of Law, Chicago-Kent College of Law. We thank Rachel Moran and Chris Slobogin for
comments on an earlier draft. © 2024, Harold J. Krent and Nicole Jansma.
** May 2023 Graduate, Chicago-Kent College of Law.
1263
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 evi-
dence uncovered during the unlawful arrest.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1264
I. THE TERRITORIAL PRINCIPLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1267
A. Power to Arrest at Common Law . . . . . . . . . . . . . . . . . . . . . . 1267
B. The Extradition Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1270
II. STATE AGREEMENTS TO PERMIT OUT-OF-STATE OFFICIALS TO
OPERATE ACROSS STATE LINES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1273
A. Fresh-Pursuit Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1273
B. Interstate Agreements Over Parolees and Material Witnesses . . . 1275
1. Rendition of Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . 1276
2. Parole and Probation Supervision . . . . . . . . . . . . . . . . . . 1277
C. Joint Enforcement of State Boundaries. . . . . . . . . . . . . . . . . . 1278
III. THE CONSTITUTIONALITY OF EXTRATERRITORIAL ARREST . . . . . . . . . . . . 1279
A. The Supreme Court Assesses the Reasonableness of Arrests
Through a Historical Lens. . . . . . . . . . . . . . . . . . . . . . . . . . . 1281
B. Lower Courts Have Misread the Supreme Court’s Decision in
Moore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1284
IV. ARREST BY OFFICERS IN THEIR PRIVATE-CITIZEN CAPACITY . . . . . . . . . . 1290
V. THE EXCLUSIONARY RULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1294
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1299
INTRODUCTION
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization
1
has sparked grave concern about a new wave of extraterritorial state regulations.
2
1. 597 U.S. 215 (2022).
2. See, e.g., Paul Schiff Berman, Roey Goldstein & Sophie Leff, Conflicts of Law and the Abortion War
Between the States, 172 U. PA. L. REV. 1, 4–5 (2024); Darryl K. Brown, Extraterritorial State Criminal Law,
Post-Dobbs, 113 J. CRIM. L. & CRIMINOLOGY 853 (2024); David S. Cohen, Greer Donley & Rachel Rebouche
´,
The New Abortion Battleground, 123 COLUM. L. REV. 1, 2–3 (2023); Alejandra Caraballo , Cynthia Conti-Cook,
Yveka Pierre, Michelle McGrath & Hillary Aarons, Extradition in Post-Roe America, 26 CUNY L. REV. 1, 2
(2023); Emma Kaufman, Territoriality in American Criminal Law, 121 MICH. L. REV. 353, 356 (2022); see also
Mark D. Rosen, Extraterritoriality and Political Heterogeneity in American Federalism, 150 U. PA. L. REV. 855
(2002).
1264 AMERICAN CRIMINAL LAW REVIEW [Vol. 61:1263
Anti-abortion laws in Idaho
3
and Texas,
4
for instance, purport to impose penalties
on individuals who may never have set foot in their states.
5
The National Right to Life Committee’s (NRLC) model statute bans assisting minors to get an abortion
“[r]egardless of where [the] illegal abortion occurs.” See JAMES BOPP, JR., COURTNEY TURNER MILBANK &
JOSEPH D. MAUGHON, NRLC POST-ROE MODEL ABORTION LAW, https://www.nrlc.org/wp-content/uploads/
NRLC-Post-Roe-Model-Abortion-Law-FINAL-1.pdf. Under the “effects” doctrine, states can criminalize acts
outside their state that have foreseeably adverse effects in their state. See, e.g., People v. Betts, 103 P.3d 883,
885–87 (Cal. 2005) (addressing acts that resulted in “lewd acts committed on a child”)
In response, a number
of governors have issued orders preventing their law-enforcement officials from
cooperating in other states’ investigations into whether abortion laws have been
violated. For instance, Maine’s governor issued an executive order asserting that
her state would not cooperate in any “investigation or proceeding initiated in or by
another state that seeks to impose civil or criminal liability” for assisting others to
secure reproductive rights in her state.
6
The order also states that Maine would not
cooperate in any requested extradition.
7
At least eleven other governors have
issued executive orders to similar effect.
8
Imagine if, in reaction to a neighboring governor’s refusal to cooperate, State A
dispatched its law-enforcement officials across state borders, either to investigate
whether individuals in that state (State B) had committed a crime under State A’s
laws or to arrest a suspect fleeing State A’s jurisdiction. Imagine further that, in
making that arrest, the officer uncovered incriminating evidence, whether related
to the offense underlying the arrest or a separate crime. The canonical response to
this hypothetical is that State A’s law-enforcement officers have no power to
arrest or investigate outside State A’s boundaries. Indeed, false-arrest suits
have succeeded for generations when the arrestee demonstrates that the arrest -
ing officers acted outside their territorial jurisdiction.
9
Under the “territoriality
3. Idaho Code § 18-623, signed into law in 2023, creates the crime of “abortion trafficking.” IDAHO CODE
ANN. § 18-623 (West 2023). Under this statute, it is a felony, punishable by imprisonment for two to five years,
for any adult to transport a pregnant minor in Idaho to obtain an abortion anywhere in the United States, without
the consent of both parents of the minor. Id. In the same stroke, the Idaho legislature gave more teeth to its
version of Texas’ private enforcement scheme (through which family members can sue providers for abortions
that were performed) by eliminating a host of defenses that defendants in state and outside might otherwise
assert. See IDAHO CODE ANN. § 18-8807 (West 2023). See also KY. REV. STAT. ANN. § 311.772 (West 2023)
(making it a felony for anyone who aids in terminating a pregnancy).
4. TEX. HEALTH & SAFETY CODE ANN. § 171.208 (West 2023) (commonly known as SB 8).
5.
.
6. Me. Exec. Order 4, 379 Me. Gov’t Reg. 1 (LexisNexis Aug. 2022).
7. Id. The Framers included extradition in Article IV of the Constitution, see infra Part I, and because the
Extradition Clause was not self-executing, Congress soon thereafter addressed extradition in the Extradition
Act of 1793, 1 Stat. 302. The Extradition Act remains largely unchanged today and provides in part that
“[w]henever the executive authority of any State or Territory demands any person as a fugitive from justice, of
the executive authority of any State, District, or Territory to which such person has fled, and produces a copy
of an indictment . . . shall cause him to be arrested and secured.” 18 U.S.C. § 3182. The asylum state must
return the fugitive unless the individual did not flee the requesting state, has not been charged with a crime, or
is not the person named in the indictment. See Roberts v. Reilly, 116 U.S. 80, 94–95 (1885); see also Michigan
v. Doran, 439 U.S. 282, 287–89 (1978).
8. See Cohen et al., supra note 2, at 43.
9. See infra notes 58–64 and accompanying text.
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