Borderline case: Christmas Eve arrest legit, high court rules


By Bruce Burdett

LITTLE COMPTON — Early on Christmas Eve morning, 2011, a trio of Little Compton police officers watched as a jogger, dressed in shorts and a T-shirt, dashed north past them on Old Stone Church Road.

They were there assisting with a rescue call and, about five minutes later, heard from dispatch that there'd been an accident on nearby Colebrook Road — car vs. guardrail and shrubbery on Adamsville Hill. The driver was nowhere to be found.

While Corporal Kennedy Hawes drove to the crash scene, Corporal John Farrar and Patrolwoman Caitlin Harris, went to check out the jogger they'd just seen running from the Colebrook direction. They found him just over the line in Tiverton

So starts a story that led from Old Stone Church Road to the police station to District Court and finally, over two years later, to the state Supreme Court.

The Supreme Court ruled in March that Little Compton police had done nothing wrong by picking "jogger" David Simmons up in Tiverton, taking the then-23-year-old Little Compton resident and US Marine back to the crash scene and arresting him on charges of drunk driving, failure to maintain control of a vehicle and failure to report an accident.

In so doing, the high court rejected an earlier decision by District Court Judge Colleen M. Hastings who had thrown the case out on the basis that Little Compton Police had improperly arrested Mr. Simmons in Tiverton, beyond their jurisdiction.

That now frees the town to press those charges against Mr. Simmons again, and "we will do so," said Police Chief Sidney Wordell.

"Crossing the line into Tiverton, the officers spotted the still-running defendant and pulled the cruiser alongside him," said Justice Francis X. Flaherty who wrote the decision for the court.

They asked Mr. Simmons if he was out for a jog and he answered yes. Officer Harris "then asked defendant if he had just been in an accident and he admitted that he had."

Officer Harris "got out of the police cruiser, approached defendant, patted him down 'for officer safety,' and asked why he had left the accident." The officers, wrote  the judge, noticed "a strong odor of alcohol" from the defendant.

Asked by Mr. Simmons whether anyone had been hurt, officer Harris said she did not believe so, "but that we needed to respond back to the scene."

Mr. Simmons, wrote Justice Flaherty, said he would return with police and got into the back seat of the cruiser. He was not cuffed nor was he read his rights.

"However, as is often the case, once he was in the back of the cruiser, Simmons was unable to open the door from the inside" should he wish to.

When they returned to the crash site, Mr. Simmons was released from the back of the cruiser. "Significantly," the judge wrote, "he was not restrained in any way."

He was then given a field sobriety test, which he failed, placed into handcuffs, taken to the police station and charged.

In District Court a few weeks later, Mr. Simmons' attorney, Robert H. Humphrey, filed a motion "to dismiss due to an unlawful arrest, arguing that the Little Compton police officers exceeded their authority because they arrested him in Tiverton." They are not State Police and could only have taken action themselves had there been a hot pursuit or an emergency police powers matter for which they had been called in to help by the other town. Otherwise they should have alerted Tiverton Police, he said.

Judge Hastings agreed. In an August, 2012 decision, she concluded that the officers' actions amounted to an arrest because, once they placed him in the back of the cruiser he could not get out. She also said the officers had not seen Mr. Simmons commit any crime and did not tell him that he could decline to accompany them back to the collision site.

She then suppressed the state's evidence and dismissed the case.

Little Compton appealed the decision.

The arrest, argued Thomas M. Bergeron on behalf of the town, took place not in Tiverton but in Little Compton, an argument that eventually convinced the  Supreme Court.

Despite the district court judge's "thoughtful analysis," Justice Flaherty wrote, "we disagree with her conclusions and are of the opinion that defendant was not under arrest when he climbed into the back of the Little Compton cruiser."

"Defendant's freedom of  movement was restricted only while he was seated in the back of the police cruiser, a period of a couple of minutes … we have difficulty imagining how the two police officers could have transported defendant back to the scene without having him sit in the back of the police cruiser. It seems clear to us that defendant voluntarily entered the police cruiser and was let out as soon as the trio arrived at the scene."

Mr. Humphrey argued that police had a duty to inform him that he did not have to go with them and that he was, in fact free to leave. He disputes that a reasonable person would assume that he was free to go, especially a Marine for whom challenging uniformed authority does not come naturally.

But the Supreme Court justices said, "It is our opinion that the police were not obligated to inform Simmons that he was not required to accompany them."

Officer Harris told Mr. Simmons that "we needed to respond back to the scene," words that the high court called "critical" to the case. It would have amounted to arrest, the court decided, had the "language made it clear that the defendant had no choice in the matter … We are satisfied that a reasonable person under like circumstance would have felt free to leave when Harris stated that 'we needed to respond back to the scene.'"

The judgement is quashed and papers in the case will be returned to District Court.



Mr. Humphrey said he will prepare with his client for a return to District Court, adding, "This decision is very disappointing for Mr. Simmons and his family.

Mr. Simmons is a "young, active-duty marine" who had been serving in Iraq while the legal issues played out.

Mr. Humphrey said his client is now at Camp Pendleton recuperating from a severe leg injury.

While the attorney called this an interesting case at the state level, he is concerned at the extent to which Little Compton has pursued the issue.

"At a time when we are struggling to repair our schools, it is interesting to see what lengths some will go to to pursue a matter like this."

"I'm please by the decision," Chief Wordell said last week. "I felt all along that this was good police work by our officers … We contended from the very start that there was no arrest in the town of Tiverton."



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