Supreme Judicial Court, November 18, 2011
A uniformed off-duty police officer outside of his jurisdiction is entitled to take the same reasonable steps to ensure public safety that an ordinary citizen can take. This includes removing the keys from an impaired motorist’s car and telling him to wait until the local police arrive. Such actions do not rise to the level of an “arrest” in violation of the common law rule prohibiting extra-territorial arrests.
An off-duty uniformed Somerville police officer was traveling in his own car when, stopped at a red light, he was rear-ended by the defendant. The officer got out of his car and approached the defendant. After a brief conversation, he believed that the defendant was under the influence of alcohol and told him to step out of the car. The defendant complied. Concerned that the defendant would leave the scene and cause injury to another person, the officer reached into the car and removed the keys from the ignition. He did not ask the defendant for his license and registration, did not try to investigate or collect evidence, and did not ask the defendant to perform field sobriety tests. Rather, he instructed the defendant to get back into his car, and then returned to his own car and called the Woburn police.
A Woburn police officer arrived at the scene. Smelling alcohol coming from the defendant, he formed the opinion that the defendant was under the influence and placed him under arrest. A subsequent records check revealed that the defendant had six previous convictions for Operating Under the Influence.
Indicted and prosecuted in Superior Court, the defendant filed a motion to suppress the evidence resulting from his encounter with the Somerville officer on the grounds that the officer’s conduct constituted an unlawful arrest. Because the officer was out of his jurisdiction, the defendant argued that he stood in the shoes of a private citizen and could not effectuate an arrest for a mere misdemeanor. At the time the officer formed the impression that the defendant was under the influence of alcohol, he knew nothing about the six prior convictions; to his knowledge the defendant was committing only a misdemeanor first offense of driving while under the influence.
A Superior Court judge denied the defendant’s motion to suppress and the defendant was convicted after a jury trial; he appealed. The Appeals Court reversed the denial of his motion to suppress and set aside his conviction. The SJC granted the Commonwealth’s application for further appellate review.
Under the common law, a police officer cannot generally make a warrantless arrest outside of his territorial jurisdiction unless one of several exceptions apply; the Court found that no exception applied in this case. The Court then questioned whether the off-duty officer was justified in making a citizen’s arrest. The Court answered “no” to that question, as a private citizen may not make an arrest for a misdemeanor. Commonwealth v. Grise, 398 Mass. 247 (1986).
The Court then addressed whether the nature of the contact between the Somerville officer and the defendant amounted to an “arrest”. The Court applied a three part test to determine whether an arrest had occurred: (1) was there an actual or constructive seizure or detention of the person; (2) was that seizure performed with the intent to effect an arrest; and (3) did the person detained understand that he was under arrest.
The Court concluded that the officer’s actions fell short of an “arrest”. It reasoned that the officer’s actions “were more akin to an investigatory “stop”, short of an arrest. In the circumstances of this case, it was reasonable for [the officer] – as it would be 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.” Accordingly, the Court affirmed the Trial Court’s order denying the defendant’s motion to suppress and upheld the defendant’s conviction.
The Court also noted that regardless of whether the defendant may have been “seized” by the government for the purposes of the Fourth Amendment or Article 14 – a matter on which the Court explicitly expressed no view – there could be no constitutional violation because the officer’s actions were reasonable.