Opinion
19-P-1150
10-30-2020
COMMONWEALTH v. Kevin DAROSA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in the District Court, a judge found the defendant, Kevin Darosa, guilty of operating under the influence of intoxicating liquor. On appeal, the defendant contends that the judge erred in denying his pretrial motion to suppress because an agent of the police seized him without reasonable suspicion. We affirm.
The defendant was also charged with resisting arrest. That charge was dismissed.
Background. The judge's comprehensive findings of fact and rulings of law are delineated in the transcript of the hearing on the motion to suppress. His abridged findings of fact are as follows. Sometime before 5:30 A.M. on the morning of the incident, a "fleet mechanic" who worked for the city of Somerville and "took care of the police cruisers for the city," was driving a marked police cruiser on Highland Avenue in Somerville. The mechanic noticed a motor vehicle parked in the middle of Highland Avenue, which is a four-lane street "with two travel lanes going in opposite directions." The mechanic stopped and asked the defendant -- the driver and sole occupant of the motor vehicle parked in the middle of the road -- if he was okay. The defendant was unresponsive. The defendant then "began to back up his vehicle on Highland Avenue." The mechanic asked him to pull over to the side of the road.
There was testimony at the motion to suppress hearing that the mechanic "refuel[ed]" police vehicles as part of his work. The mechanic is now retired, and did not testify at the motion to suppress hearing. He did, however, testify at trial.
"Once the defendant backed up his vehicle to the side of the road, the defendant tried to get out of his vehicle. [The mechanic], who was driving a marked police vehicle, used that vehicle and parked it next to the driver's side door of the defendant's vehicle so that the defendant would not be able to get out when he tried to get out. He alerted dispatch at the Somerville Police Department. The Somerville Police Department then radioed a call to assist the fleet mechanic relating to a possible OUI at Highland Avenue and Central Street in Somerville."
Officer Jose Ramirez of the Somerville Police Department responded to the scene. He observed that the defendant "appeared to be lethargic and not himself, and seemed dumbfounded." It appeared that the defendant "needed some type of help. He wasn't fully cognizant of his surroundings." Officer Ramirez saw that the motor vehicle operated by the defendant had front-end damage, and the driver's side mirror "was hanging by a wire." Officer Ramirez knocked on the window and then asked the defendant to roll down the window. Instead of doing so, the defendant turned off his vehicle and opened the door. Officer Ramirez noticed an odor of alcohol emanating from the vehicle and observed that the defendant's eyes were glassy and bloodshot. When asked for information, the defendant "was not forthcoming" and his speech was "slow."
Officer Tyler Sousa, who had also arrived at the scene, asked the defendant for his name and "what happened." The defendant "merely smiled at the officer" in response. The officer asked again for his name and what had happened. The defendant did not respond. At this time, the defendant "was slumped over the wheel with his chin to his chest." Officer Sousa likewise noticed that the defendant's speech was slurred and "[h]is eyes were blurry." When asked questions, the defendant was not cooperative, and refused Officer Sousa's requests to get out of the motor vehicle. The officers subsequently had to remove the defendant from the vehicle, and placed him under arrest.
In his rulings of law, the judge determined that the mechanic acted as a private citizen, and not as a law enforcement officer who had the power to execute a motor vehicle stop. The judge concluded that the mechanic acted out of concern for public safety, and that Commonwealth v. Limone, 460 Mass. 834 (2011), controlled in material respects.
Discussion. "In reviewing a trial judge's decision on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error.... We make an independent determination whether the judge correctly applied the law to the facts found." Limone, 460 Mass. at 837. Here, the defendant argues that the mechanic acted as an agent of the police, and did not have reasonable suspicion to seize him. He contends that although preventing the defendant from driving away could be reasonably tied to public safety concerns, blocking the defendant and preventing him from walking away from the scene was not justified.
There is no serious dispute that Limone is the controlling authority in this case. There, an off-duty police officer, who was still in uniform, but was driving his personal motor vehicle, saw a red Oldsmobile travel onto a highway and make several lane changes. See Limone, 460 Mass. at 835. The officer noted that the driver "looked confused." Id. The officer exited from the highway, and stopped at a red light. While stopped, the Oldsmobile struck his motor vehicle in the rear. The officer got out of his motor vehicle, approached the Oldsmobile, which was being operated by the defendant, and, after speaking with the defendant "formed the opinion that [he] was under the influence of alcohol." Id. The officer told the defendant to step out of the motor vehicle. The officer reached into the Oldsmobile and took the keys from the ignition, and told the defendant to get back into the Oldsmobile. See id. at 835-836. The officer then returned to his motor vehicle and contacted the Woburn police. See id. at 836. Officers arrived and subsequently arrested the defendant for operating under the influence of alcohol. See id. The defendant in that case argued that evidence from the encounter with the off-duty officer should have been suppressed because the officer's actions in Woburn constituted "an unlawful arrest outside of his territorial jurisdiction ... [and] [b]ecause [the officer] was out of his jurisdiction, ... he stood as a private citizen and, therefore, could not effectuate an arrest for a mere misdemeanor." Id. The Supreme Judicial Court rejected that argument and held 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 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." Id. at 838-839. The court further concluded that insofar as the officer "did not ‘arrest’ the defendant for the purposes of triggering the common-law rule against performing a citizen's arrest for a misdemeanor, and that his actions were reasonable preventive measures to ensure public safety," the motion judge did not err in declining to exclude the evidence. Id. at 842.
The officer was employed by a different city in Massachusetts and did not have authority to arrest the defendant. See Limone, 460 Mass. at 837-838.
Here, as in Limone, the mechanic's actions were proportionate and reasonable in the face of serious and obvious public safety concerns. See Commonwealth v. Tynes, 400 Mass. 369, 371-374 (1987) ; Commonwealth v. Lariviere, 98 Mass. App. Ct. 440, 441-442, 444-445 (2020). We further note that here, as in Limone, the mechanic did not ask the defendant to produce a license and registration, collect evidence, or ask the defendant to perform field sobriety tests. See Limone, 460 Mass. at 840. Finally, there is no evidence that any government official instigated the mechanic's actions. See Commonwealth v. Jung, 420 Mass. 675, 686 (1995) ("A private party becomes a State agent when government officials have instigated the party to search or participated with the party in a search in which they could not themselves have legally engaged"). Accordingly, the judge did not err in denying the motion to suppress.
The defendant also contends that the Commonwealth's reliance on the hearsay testimony of two officers at the hearing on the motion to suppress was insufficient to prove that the initial seizure was justified. The argument is unavailing. See Commonwealth v. Evelyn, 485 Mass. 691, 706 & n.8 (2020) (" ‘[T]he rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence.’ United States v. Matlock, 415 U.S. 164, 172-173 [1974]. See Mass. G. Evid. § 1101 [d] [2020]. When deciding a question of admissibility at a hearing on a motion to suppress, ‘the court is not bound by the law of evidence, except that on privilege.’ Mass. G. Evid. § 104 [a] [2020]").
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Judgment affirmed.