Commonwealth v. Joseph Limone, June 22, 2010
Seizure, Operating Under the Influence, Extraterritorial Stop, Breathalyzer Test, Field Sobriety Test
The defendant was convicted of (1) operating a motor vehicle while under the influence of alcohol, (2) operating a motor vehicle after revocation of his license, and (3) operating a motor vehicle while under the influence of alcohol, fourth or subsequent offense. On appeal, the defendant argued that the motion judge erred in denying his motion to suppress evidence. He claimed that evidence was obtained as a result of an unlawful extraterritorial seizure.
Kelleher, a Somerville police officer, was returning to his home in Woburn after performing a paid detail. He was in full uniform, but was driving his personal vehicle. The defendant’s vehicle struck Kelleher’s vehicle in the rear. Kelleher approached the defendant and identified himself as a police officer. Kelleher believed the defendant was under the influence of alcohol and told him to exit his vehicle. Kelleher took the keys from the ignition, told the defendant to wait in his car until the police arrived, and used his cell phone to call Woburn police. Kelleher and the defendant waited, each in his own vehicle, for the Woburn police to respond. Woburn police officer Simonds approached the defendant, smelled alcohol, observed indicia of alcohol intoxication, and asked for license and registration. The defendant produced a pack of cigarettes. Simonds observed a nip of whiskey in the defendant’s lap. Simonds arrested the defendant after the defendant failed field sobriety tests. At the police station, a breathalyzer test recorded a .12 reading. A subsequent check of the defendant’s probation record revealed six previous convictions of operating under the influence.
The defendant moved to suppress the field sobriety and breathalyzer tests, on the grounds that Kelleher effectuated an unlawful extraterritorial stop and arrest. The Appeals Court concluded that Officer Kelleher’s actions constituted a seizure; therefore, the issue was whether Kelleher’s actions were proper.
Absent a fresh pursuit for an arrestable offense, a police officer is generally without authority to make an arrest outside his jurisdiction. Commonwealth v. Savage, 430 Mass. 341, 343 (1999). Outside his jurisdictional boundaries, a police officer stands as a private citizen and an arrest by him is valid only if a private citizen would be justified in making the arrest under the same circumstances. Here, the defendant was suspected only of a misdemeanor motor vehicle offense. The seizure of the defendant was therefore unlawful. Evidence obtained from the seizure was necessarily excluded. The Appeals Court reversed the convictions.
- Prepared by AYK
