Quick question: If you’re in a Massachusetts motor vehicle accident with an off-duty police officer, and he or she prevents you from either driving away or leaving the scene of the accident until the appropriate police department arrives, is that an “arrest” for legal purposes? According to the Supreme Judicial Court (SJC), the answer is “No”, and as a result, any evidence obtained by the police who have geographic jurisdiction and are summoned to the scene by the off-duty officer, cannot be excluded at trial.
Let’s start with basics in this area of Massachusetts criminal law, then we’ll get to the facts of this case: At common law in Massachusetts, a police officer cannot generally make a warrantless arrest outside of his territorial jurisdiction. If, for an example, an off-duty Boston police officer made a warrantless arrest of a person in Westwood, that would probably be ruled to be an invalid arrest, and as a result, any evidence that the Boston police officer obtained as a result of that “arrest” would be deemed inadmissible at trial against the person arrested.
In this case, a driver’s automobile collided in Woburn with a vehicle driven by an off-duty Somerville police officer. That off-duty Somerville officer suspected that the driver who hit him was operating under the influence of alcohol in Massachusetts, and the officer prevented the driver from leaving the scene until the Woburn police arrived. Upon arrival, the Woburn police arrested the driver for Massachusetts OUI/DUI, and the driver was later indicted for operating while under the influence of alcohol and for operating with a suspended license and operating with a revoked license. This defendant’s attorney did what as a Dedham, Massachusetts OUI lawyer I would have done in similar circumstances: Filed what is called a ‘Motion to Suppress’, arguing that any evidence that was obtained by the Woburn police, should be excluded at trial in the prosecution’s case against the defendant.
The defendant’s argument was that the off-duty Somerville officer’s actions in preventing the defendant from leaving the scene until Woburn police arrived, in effect constituted what’s known legally as an “extraterritorial arrest” of the defendant – i.e., an arrest by a police officer outside of his geographic jurisdiction, without a warrant. In making this argument, the defendant’s attorney here was saying that, as the arrest was invalid, any evidence obtained from it (BAC readings, roadside sobriety tests, alcohol found in the vehicle, etc.) should be ruled inadmissible. A Superior Court judge denied that motion, and the defendant appealed that judge’s ruling to the SJC, which upheld the judge’s ruling. As a result, all the evidence obtained by the Woburn police against the defendant in this case, was allowably used at trial against the defendant.
In making this ruling, the SJC recognized that under the common law, a police officer cannot generally make a warrantless arrest outside of his territorial jurisdiction. However, they found that the off-duty officer’s actions in telling the defendant to step out of the car and preventing him from leaving the scene until local police arrived, fell short of an ‘arrest.’ Instead, the court found that the off-duty officer’s actions more closely resembled an investigatory ‘stop,’ which is not an actual arrest. The court found it reasonable for the off-duty officer – as it would be for a private citizen – to prolong the ‘stop’ until the Woburn police arrived, “in order to ensure the safety of the public and of the defendant himself.” According to the ruling, “Viewed objectively, the defendant in this case was not under arrest until … the Woburn police arrived and placed him under arrest. Not only did [the off-duty Somerville officer] not subjectively intend to arrest the defendant, he also did not objectively communicate such an intention to the defendant. As the motion judge found, ‘[the off-duty officer] did nothing to suggest to [the defendant] that he was placing him under arrest.’ As such, Kelleher’s actions here were more akin to a reasonable investigatory stop .. not an arrest. Therefore, the evidence collected by [the Woburn police] Officer Simonds was not obtained in violation of the … law and need not be excluded. …”
So, bear in mind that sometimes, when it comes to police arrests, things can get creative.
The case is Commonwealth v. Limone (Lawyers Weekly No. 10-164-11)