Repeat drunk driver catches break: Court tosses OUI conviction because off-duty cop from another town was first to stop him

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.

Complete ruling.