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Repeat drunk driver catches break: Court tosses OUI conviction because off-duty cop from another town was first to stop him
By adamg on Tue, 06/22/2010 - 11:46am
UPDATE: Supreme Judicial Court overturns Appeals Court ruling, says cop did nothing wrong and the conviction stands.
The Massachusetts Appeals Court ruled today an off-duty Somerville cop had no right to take a guy's keys away after the guy rear-ended him in Woburn, apparently under the influence.
Because that "seizure" was illegal, so was Joseph Limone's conviction on charges of OUI and operating a motor vehicle after revocation of his license, the court ruled, even though Woburn police performed field-sobriety and breath tests to confirm his inebriation on Aug 4, 2006. Limone had no license because he'd been convicted at least six times before on OUI charges.
The court describes what happened that night: Somerville police officer Robert Kelleher was on his way home, in uniform, but in his own car, to Woburn. He'd just gotten onto Montvale Avenue from I-93 north when Limone's car rear-ended his:
Kelleher got out of his vehicle, approached the driver's side of the Oldsmobile, identified himself as a police officer, and told the defendant that the defendant had struck his (Kelleher's) vehicle. The defendant stated several times that he was sorry.
Kelleher formed the opinion that the defendant was under the influence of alcohol and told him to step out of the car. When the defendant got out of the car, Kelleher, concerned that the defendant would leave the scene and cause injury to someone, reached in and took the keys from the ignition. He told the defendant to wait in his car until the police arrived, and he used his cellular telephone to call the Woburn police. Kelleher and the defendant waited, each in his own vehicle, for the Woburn police to respond.
The court notes that when a Woburn officer arrived and asked Limone for his license, Limone offered him a pack of cigarettes. Then he failed field-sobriety tests and, after he was taken to the Woburn police station, blew a .12 on a breath test.
But none of that would have happened but for Kelleher preventing him from leaving:
Outside his jurisdictional boundaries, a police officer stands as a private citizen, and, if not in fresh and continued pursuit of a suspect, an arrest by him is valid only if a private citizen would be justified in making the arrest under the same circumstances. ... In this case the defendant was suspected only of a misdemeanor motor vehicle offense. It was subsequent investigation that disclosed the defendant had been convicted on at least six prior occasions of operating while under the influence of liquor. Thus, the seizure of the defendant was unlawful. ... The remedy for such an unlawful stop and arrest is exclusion of the evidence under the "fruit of the poisonous tree" doctrine. ...
In this case, since the only evidence would not have been obtained but for the unlawful stop and subsequent arrest, the judgments are reversed, the verdicts are set aside, and judgments are to enter for the defendant.
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Comments
This is bullshit.
This is bullshit.
Jurisdiction and the 4th amendment
are the two legal principles that drive the decision in this case. The off-duty officer who was out of his jurisdiction could have called local police and would have been a excellent witness, in addition to being a victim of the auto collision. Instead, because the off-duty policeman was not sufficiently trained on issues related to jurisdiction or forgot that training, in the moments he was trying to do his best to manage the risk of a drunk driver on the road, ignored jurisdiction and thus invalidated his seizure. Are our laws too complex that police training cannot address them or do the police have trouble mastering them?
MA seems to have a lot of 4th amendment rights cases recently also discussed on U Hub including Terry search which Jake Wark assured us would be overturned; and the case Coakley argued in the Supreme Court of the United Stares ...and lost.
It seems ridiculous that an
It seems ridiculous that an off-duty cop should be considered a cop, though. Shouldn't that have just been grand theft auto or somesuch? I'm as strongly pro-4th amendment as you can get, but why is some guy with no authority making an "illegal seizure" rather than "stealing a guy's car keys"?
he probably spouted off 100
he probably spouted off 100 times about being a cop.....
this is such a sad story. Such a crucial role as police officer should require more than a hs diploma and a summer at an "academy" taught by desk jockeys. It should require a Bachelor's in criminal justice or something, with a healthy curricula of ethics, principles, law and a faculty balanced between practicing and former officers and academics divorced from the bureaucracy of actual police departments.....
Pierce you probably are a moron.
Tell us all what he should have done. And then tell us where you went to school and how smart you are.
It seems pretty clear that if
It seems pretty clear that if he does one thing different-- to not identify himself as a police officer and use that as influence in an area that he has no jurisdiction-- then it is a different situation. If he tells the guy he hit his car, pulls him out, takes his keys, calls the real cops, it has a different ending. He should have known that. He should have known it was improper to use his status as a police officer in another jurisdiction as a way to make this guy acquiesce. Ethics and conduct 101. Or wait, 100 level classes aren't a pre-requisite.
thanks for the petty insult though, i'll withhold my bio as its kind of irrelevant. Obviously no one needs a college education to comment on blogs.
actually, that's not clear at all...
read the court opinion. if he was not acting as an officer, and did not identify himself as an officer, he is allowed to arrest somebody under the same circumstances as any ordinary citizen can. which means, in this instance, he couldn't. a private citizen can only arrest somebody if they are committing a felony. the drunk driver was not known to be committing a felony at the time, so no arrest is allowable.
read my comments, i said he
read my comments, i said he should have taken the keys as a citizen but called the local cops and let them deal with it. In that situation he is doing no more than countless bartenders, friends, and strangers do on a nightly basis, and with the added leverage that his vehicle had been hit by this fellow. Sure perhaps we can pick nits over whether that's within the legal bounds of a private citizen but really would that result in a trial? It doesn't strike me as likely.
Would it result in a trial
Would it result in a trial charging the cop with some variety of theft? No. Of course not. Neither will his actions here.
Would it result in the DUI charge being thrown out on the same grounds as it was here? Quite possibly.
i tend to agree
another complication is that he was wearing his uniform and so he did not have to announce he was a police officer for it to be apparent to anyone with sight.
Perhaps if he had announced that he was out of his jurisdiction first. Then asked for the man's keys but not demand them or take them by his own hand, then he could have acquired them legally... not seized them as an officer but acquired them as a civilian.
(Suggesting all of this is implicitly recognizing the complexity of this scenario, and recognizing a narrowly defined conflict between public safety and individual rights.)
Did you notice, Pierce
That the man was wearing his police uniform?
What should he have done in order not to identify himself as a police officer? Say he was going to a costume party?
no, i didn't
no, i didn't
pull him out?
The guy had his uniform and wanted him to get out of the car right away without having to "pull him out" as you think a citizen should have.
When you have a uniform and a gun, it is a lot easier to do things like get keys and order someone out of a car like what happened in this situation.
If he didn't identify himself as a cop, this guy could have thought to himself "oh shit, this is my 5th OUIL, there is a 50% I am going to prison next time, I'm taking off on this guy" Plus after a few OUILs this guy probably knows that all he has to do is make it to his house, shut the door and the police have a 0% chance of an OUIL arrest.
Again you missed the whole point here. As a police officer, you need to think about the safety of the situation before any type of crimanal procedure or law factors in. The #1 responsibility of this cop is to make sure the guy doesn't get back on the road. Procecure is second to safety.
You don't need a bio, it says you are a designer. Enough said. And the petty insult was kind a response to your ignorant post. (which is pretty ignorant)
Enough said? What the hell
Enough said? What the hell does that mean? Are we stereotyping professions?
You reacted to my ignorant and ill-thought post by responding only to the emotion it raised in you, with no logic, then gave out an immature insult. Then after others worked it out rationally you arrive cool and collected to layout a good description. I don't have to click your name to guess you're a cop? Because that chain of events typifies most of my interactions with said profession......
you already clarified your feelings towards the profession.
So it made me think we should all feel that way about all professions. Or are we both wrong?
75% of your original post had to do with uneducated cops that need a high school diploma and you didn't even read the case.
And why should I have a logical reaction to an illogical post?
why should you have a mean-spirited reaction
to a post of any tone?
We live in a society that
We live in a society that rightfully requires advanced formal education of practice, theory and ethics for the people who maintain our health, teach our children, plan our buildings, but we have a pretty low threshold for the people who hold the keys to our society, those who we give the authority of force to. That's my gripe. I saw it manifest in this article, incorrectly, and jumped to a conclusion. A false conclusion that was influenced by the many real situation I've witnessed (usually as a bystander because I notice trouble more than I involve myself in it thankfully) where some meathead cop toes the ethical line in his/her castigation of us plebians on the other side of the Force divide. I called it wrong here, I apologize.
fair enough
But let me tell you. There are a few dozen police officers I know that have law degrees. Some of them are horrible cops. 99% of the job is common sense and really has nothing to do with education. You could require a college degree for police officers (which most have now anyway because it isn't that hard anymore to get a college degree) and it wouldn't really change things.
Wait, what?
So yesterday we have a woman who is justified in resisting arrest in defense of another...
...and today, we have a drunk driver who gets off scott-free after RAMMING ANOTHER CAR (seems to be a pretty open and shut case of "danger to himself and others") and obviously impaired...
...because the guy who takes his keys is an off-duty cop who, from the layman's perspective, is Playing It Safe jurisdiction-wise by not arresting him on the spot?
Remember the argument they used to justify dismissing the other case? Basically: if she had hit the cop, she was doing it in defense of another. If she hadn't, the defense-of-another argument was moot.
Well, let's play that game here: if he hadn't taken the keys and the guy split, he'd be guilty of repeatedly DUI, leaving the scene of an accident with damage over $x, and he would have been caught anyway within a short period of time after his vehicle description was broadcast...and also charged with driving without a license. Even if the cops only caught up to him a few hours later at his house, he probably would have been charged with DUI based on the testimony of the guy he hit, given the guy was an off-duty LEO.
If he hadn't taken the keys and the guy didn't split, he'd still been arrested for DUI. Inevitable.
I swear to god, there's got to be a cabal of some sort with Massachusetts judges and DUI attorneys. How are these people repeatedly let back on the road AND not in jail? How do they get insurance, which they need to register their car?
PS:Since when is taking someone's keys, not restraining them (the cop wasn't even standing there- he went back to his own car!), not informing them they're under arrest, etc "arrest"? The guy could have walked away. Oh but wait, then he'd be LEAVING THE SCENE OF AN ACCIDENT.
And just imagine the lawsuit
And just imagine the lawsuit the off-duty cop would have faced had he allowed the drunk guy to drive away and another accident occured? Suddenly it would have been his duty to arrest/detain the guy even though his initial contact was out of his juridiction.
Please, please, please tell me this can be appealed upwards?
No Need To Imagine
In the early 80s, a cop in Billerica let a buddy drive home piss drunk because it was only a few blocks. The drunk killed somebody, and the family successfully sued the city into near receivership.
One would think that the clear danger presented by a drunk driver who had already hit something would be reason enough to justify detaining the guy and preventing him from driving. Shit, any reasonable citizen would have taken the guys keys while waiting for the locals to show. Jurisdiction didn't seem to deter the city cop that went after the jerk who blew through a red light at a high rate of speed at rt. 16 and 60 this morning - nearly hitting me and the cop car while blaring his/her horn. The cop turned and pursued, despite Rt. 16 being a state road.
This cop would not have been liable.
He was a regular citizen in another town.
He did the right thing as a citizen in this case but did not have any legal authority to actually stop him, make him get out of his car, take his keys, etc. (at least in terms of charging the guy criminally)
I hope he sleeps well at night
He may have known the jurisdictional issues and decided on the greater good - preventing the drunk from driving. He's a hero rather than a "but I didn't have jurisdiction" guy who would have to live with the consequences of inaction.
If he had tackled the guy running from the scene of a crime, would that have nullified the subsequent arrest? Why is keeping someone from driving - driving being a privilege and not a right - somehow more sacred than running from another sort of crime? It wasn't as if he was sitting on the guy - just keeping him from driving.
He essentially stole the
He essentially stole the man's car. That is a right, not a privilege.
He definately did not steal the car.
He temporarily took the man's keys in order to prevent him from driving and creating a danger to the public. Holding a persons keys is not stealing the car, or even the keys. Even if your girlfriend of brother 'steals' your car, they generally are charged with "Use without authority"
100% right Swirrly
At least I think so.
The cop did not do a "bad
The cop did not do a "bad thing" in a moral sense. But let's look at a few scenarios.
a) I walk into your house today, take your car keys, and refuse to give them back, claiming that you rammed me while drunk.
This is car theft. I can't do that, because I am not a cop and have no authority to do so.
b) You actually do rear end the RCMP, in Somerville. You are not drunk. The mountie claims you are, and steals your car keys.
This is car theft. He's a cop, but not in a way that has any meaning in Somerville.
c) You rear end a Boston cop, in Somerville. You are drunk. The cop steals your car keys.
This is not meaningfully different from b), and is more or less what happened here.
We grant police powers to a specific few people, in order to regulate the power to confiscate private property under the theory that it helps the greater good. We can't allow the lines of who has these powers to be blurred, lest we have random people impersonating police officers on a whim.
This cop was right to take the keys if he sensed real danger. The court was also right to throw out the conviction.
Teenage Thinking
"My dad took my keys - that means he stole my car, right? Right?"
Your entire argument here is predicated on the totally bogus premise that taking keys away is equivalent to taking property. There is a difference between claiming the keys and actually stealing the car. If you go to a party and the host has a key box (something my friends did as teens), does that mean your friend stole your car?
Oh please.
If he took those keys from
If he took those keys from you forcefully and refused to give them back at your request? He sure did. He, at the very least, stole your keys.
What next?
That cop STOLE MY GUN. Sure, I was about to shoot somebody with it, but HE STOLE MY GUN (or bat or knife ...)
I suppose the guy who shot down the man attacking the doctor with a knife stole his knife?
When people with appropriate
When people with appropriate authority do it (an in-jurisdiction police officer), it's not theft. That's the entire point of my argument.
The guy who shot the man attacking the doctor was rightfully investigated to be sure that, you know, there was actual serious danger to life and limb when he acted. He was also rightfully cleared and treated as a hero.
Actual serious danger
Looks like you meet that test here.
Absolutely, and nobody is
Absolutely, and nobody is going to charge this cop with a crime, either. In fact, I, a person who thinks the conviction should be thrown out, think he's a minor hero for what he did.
That doesn't mean a conviction should stand, though.
Intent to deprive...
Actually, larceny involves the element of permenently depriving someone of that property. So taking keys from a drunk person may not be larceny.
(of course if you forcibly took them that could be unarmed robbery)
Is taking (seizure) of the man's keys
unlawful detaining of the man?
Can a man be unlawfully detained and then subsequently be lawfully detained and then arrested when probably cause is determiend?
No
Fruit of the poisinous tree. Once an illegal seizure, search etc happens, anything that happens after that cannot be admitted as evidence, crime, etc.
Allthough there are some cases where searches are upheld because the evidence is going to be found anyway (police pull over car and wait for radio transaction to confirm it was stolen, in the meantime they illegally search locked container in trunk, car ends up stolen but police policy allows locked containers to be searched in inventory searches, stolen car was going to be searched regardless of initial search).
what makes it an illegal seizure?
That the officer, because 1) he is an officer and because 2) he has no jurisdiction, seized the keys outside of his jurisdiction in what would have been an illegal seizure if he had been in his jurisdiction? As it stands, was he acting as an officer of the law or not when he took the keys?
This would have been a legal seizure
if it happened in Somerville. (If that's what you are asking)
the judge predicates his
the judge predicates his decision on the illegal seizure of the man's keys by an off-duty policeman, who clearly understood the ramification of the jurisdictional issue and tried to act in accordance by not arresting the suspect but by detaining him by seizing his keys.
If the policeman was acting as a citizen, should he be charged with taking the drunk mans keys (petty larceny) but not with an illegal seizure? He called the police who had jurisdiction and waited for them to conduct the police work.
Not exaclty true:
A citizen would not be charged since larceny would need an intent to permently deprive. The intent of the cop here is pretty clear. He did not want to steal the guys car or car keys.
What would I be charged with
What would I be charged with if I, a private citizen, wanted to be sure you were late for a job interview, so I "stole" your keys and refused to give them back until after your job interview or other appointment was already over? This is a legit thing, not a prank, I actually want to try to harm your life by depriving you of the ability to operate your rightfully owned property. I don't have any intent of permanently depriving you of your property, though.
Surely that's some crime or another, right?
It's a tough one.
You could probably be charged with larceny and the court would rule one way or the other. You could argue that your job is property and that the person was taking away that property.
The statute is pretty clear about the elements, although there are exceptions. For instance, if you stole someones property because you knew there would be a reward for the property if turned back in, that has been ruled as a larceny in case law.
It also depends on the manner in which you stole them.
Hopefully the SJC will reverse
Drunk driving _can_ be a felony, if the (alleged) drunk driver is a repeat offender. How was the victim/key-grabber supposed to know how many prior offenses the guy had?
Stupidest ruling I've seen in a long while.
OUIL
Michael, legally only a conviction makes someone eligible for time in prison, the actual arrest would never in iteslf be a felony.
Basically the off duty cop was in full uniform and identified himself as a police officer. He cannot legally order someone to do anything outside his juristiction.
Anonymous you really don't get it do you. The cop was hit in the rear and he did call local police. You tell me what you would have done? Forget the law on this one. You (cop or not) need to do whatever you can do to keep this drunk driver off the road. There was absolutly nothing this cop could have done that would have reversed the judges decision on this one. Kind of a loophole in the juristictional process on this one. Even Brett figured that one out.
"Forget the law on this one"
That's exactly your problem. You tend to act out of some standard of moral authority rather than the very specific legal authority the police are authorized to act on, which is the standard in the commonwealth and in the country - the standard of legal authority. There is no other.
The off-duty policeman accomplished his goal but at the expense of getting a conviction. So it goes.
My problem?
I would hope any citizen would make sure someone wouldn't leave a scene of an accident if they were rear ended. Do everything you can to get the keys away from the guy. Forget about authority, it is morally right to try to take the keys from this guy and that goes for anyone.
The off duty cop did everyone a favor by getting the keys from this guy.
And again, tell me what you would have done in this situation anonymous. You have already had a lot more time to think about it than the officer in this case had.
"Do everything you can to get
"Do everything you can to get the keys away from the guy"?
Aren't you a cop? That's horrendous advice. I'll let the people that get paid to get in confrontations with drunken maniacs handle that, thanks.
Yea ok.....
doing "anything you can" doesn't mean punching the guy in the face and yanking him out of the car.
But if there is a way to get those keys away without hurting yourself, you should do it in a case like this.
Sure. I'll grant that. Asking
Sure. I'll grant that. Asking politely. Begging. Perhaps, if the keys are on the ground, picking them up subtly. But when confronted with a hit and run drunk, you're probably not going to have an easy time getting the dude's keys at no risk to yourself or the other driver.
And yeah, I think the off duty cop did the right thing by taking the keys. The courts also did the right thing by throwing out the conviction, given that I've now read that the cop was in uniform and presumably showed a badge. If he was just in jeans and a hoodie, I hope the decision would have been different.
Or tricking him and delaying him as much as possible
(if you called police)
or do like the RedStripe commercial does:
http://www.youtube.com/watch?v=ue4LhLUp4CU
Block them in
Been there, done that. I have prevented a driver - not likely drunk, but clearly impaired by some combination of pathology and medication - from leaving the scene of an accident which she caused but denied causing. If somebody is impaired, it is all the easier to box them in or put a brick under their wheels or find some other way to prevent them from leaving.
I'll re-phrase
is there a way for the out of jurisdiction officer to keep the drunk driver off the road and not violate his 4th amendment rights so that a subsequent conviction can be upheld?
"There is no other."
Wrong. Moral authority is higher than legal authority. The interpretation of law by high courts determines what's consistent, not what's right. Many times they are the same. Here they are not. You know that, and you know what you'd say if the cop had allowed the driver to leave and kill someone.
Did the officer ask fo his keys or take them?
Did the officer cuff the drunk driver or did the drunk driver stay becuase he didn't have his keys?
Why is the off-duty cop considered to be part of law enforcement (thus creating an illegal search) if he is out of his jurisdiction and acting as a citizen without the authority endowed upon police and simply aiding the police in protecting public safety?
I think the legal issue rests on whether the out of jurisdiction officer detained the man (as an officer can) or simply used influence to make the man stay until the police arrived.
He was considered to be part of law enforcement..
because he was in full uniform (driving home from a detail) and he identified himself as a police officer because it was probably the easiest and safest way to make sure this guy wouldn't take off again. No one is thinking about procedure at this point, you want to think about the safety of others on the road if this guy actually got in his car again.
No one is disputing the legal issue, tecnically it is what it is.
Is there a way for the (out of jusrisdiction) officer
to accomplish a double goal 1) detain the driver 2) without violating his 4th amendment rights thus allowing a conviction to stand?
No
although you can argue tons of things in court.
could he follow the drink driver if he insisted on leaving
and remain in touch with the police so that they could arrest him?
He could have done that.
But what happens if the guy crashes into someone then? Do you want to take that chance?
I can see why the officer made the choice he did
Since conviction was overturned, I think it's a good time to identify alternatives to see of both goals could be accomplished - detain and lawful rest.
Taking his keys invalidates the subsequent search. So what could he do to detain that would not? It is common in this situation to exchange drivers license and insurance info. The officer could ask for that info and if he didn't have it - IE no license - transcribe the info Joseph Limone gave him by word of mouth.
It seems the officer DID understand that he did not have jurisdiction. Otherwise, he would have proceeded beyond taking the keys to give a field sobriety test etc.
The only other thing I can think of...
is when he called the Woburn Police, ask the Commanding Officer to grant him police powers in Woburn as part of the mutual aid exception to the juristictional requirment.
That of course can be argued every which way in court as well.
he couldn't do it as a citizen *or* an officer...
basically, the officer physically removed the man’s keys from his ignition, thus illegally detaining him. he can't do this as an officer (out of jurisdiction) nor a civilian (illegal detainment).
i think this is one of those horrible times where the officer in question was morally and ethically correct in what he did, but his actions were not legally enforceable.
he did a good thing -- he kept a drunk off the road for the night. it can't be used against the guy in court, but it still had a short term gain, and i think people need to be satisfied with that. it's no small thing. if people had kept a few more drunk guys off the road the other night, we wouldn't be holding a wake for Sgt. Doug Weddleton right now, and a four children would still have their dad.
so the guy can't get changed for it. that sucks, but it's the law. however, imho, the officer had a lousy choice to make either way.
Illegal detainment probably
Illegal detainment probably wouldn't have destroyed the DUI case, though.
Really?
One time I was waiting for a bus and watched a senior citizen plow into a row of newspaper boxes, get his car stuck on a median, and continue forward over a sign toward a bunch of pedestrians waiting for the bus on the opposite side, all very slowly yet WTFingly. So I ran up to the car, tried to ask the dude what was up, quickly realized he was incoherent. (At the time I was in my first year of grad school, so was determining this as a civilian with only basic first aid training at the time, not as a professional). So I reached in and took the dude's keys and called 911, then stayed and assessed the gentleman to make sure he wasn't in need of immediate first aid or CPR. The cops thanked me, didn't take down my info or anything, said I did the right thing. They apparently had no question as to whether I should have taken the guy's keys.
This is what happens
when you don't execute criminals. Six felony convictions should be grounds for capital punishment, not for letting somebody near a car.
If drunk driving was a felony...
...as it should be, there would have been no problems with sustaining this conviction.
Why wasnt this guy serving
Why wasnt this guy serving life in prison after OUI number 3, never mind 6?
If the cop and the drunk were
If the cop and the drunk were on bicycles, UHub would explode.
is there a law prohibiting off duty policemen
from operating a bicycle under the influence of alcohol?
If the drunk had been on a bike, I'm not sure he'd have been a danger to others or in violation of his probation.
OUI laws apply to bikes.
OUI laws apply to bikes.
As does the law of gravity
When it comes to alcohol, and bikes or motorcycles the automatic enforcement of the law of gravity tends to prevent violation of the OUI laws. I once asked an ER doc friend about this and he said that most booze-related injuries with two-wheelers occur when someone climbs on and falls off or can't keep it vertical.
OUI laws do not apply to bikes.
nt
huh, you're right
Bikes are classified as vehicles, but c90 s24 says "motor vehicle".
There are seperate statutes
for OUIL on a snow or recreational vehicle (Ch.90B s.26), although it has been ruled that scooters and mopeds do fall under the c.90 s.24 statute.
Well seems like everything worked out alright
The cop stopped a drunk from injuring anyone else and the drunk had his rights upheld. Hopefully they have both learned a lesson here. Maybe next time the cop will detain someone outside their jurisdiction with a little more subtlety and the drunk will drink and drive with a little more caution.