U.S. v. Ryan

Full title: UNITED STATES OF AMERICA v. KEVIN RYAN, Defendant

Court: United States District Court, D. Massachusetts

Date published: Aug 4, 2010

MAGISTRATE JUDGE NO. 08-00201-MBB (D. Mass. Aug. 4, 2010)

Opinion

MAGISTRATE JUDGE NO. 08-00201-MBB.

August 4, 2010

MEMORANDUM AND ORDER RE: MOTION TO DISMISS OR, IN THE ALTERNATIVE, SUPPRESS EVIDENCE (DOCKET ENTRY # 21)

MARIANNE BOWLER, Magistrate Judge

Pending before this court is a motion to dismiss the complaint filed by the United State of America ("the Government") charging defendant Kevin Ryan ("defendant") with operating under the influence of alcohol, unsafe operation of a motor vehicle and refusal to submit to a chemical test or, in the alternative, to suppress evidence derived from the stop of defendant's vehicle by United States Park Ranger David LaMere ("LaMere") on August 31, 2007. (Docket Entry # 21). The events leading up to and including the stop happened in and immediately outside the Boston National Historic Park, specifically an area known as the Charlestown Navy Yard¹ ("the Park"). (Docket Entry ## 22 24).

1 The Charlestown Navy Yard is part of the Boston National Historical Park. See 16 U.S.C. § 410z.

Having reviewed the papers, listened to argument at the April 13, 2010, motion hearing and considered the testimony and argument at the June 10, 2010, evidentiary hearing, this court finds that LaMere conducted: (1) an investigation pursuant to 16 U.S.C. § 1a-6(b)(3) of unsafe operation; (2) a Terry ² stop to investigate the possibility of defendant's operation under the influence of alcohol; and (3) an unlawful de facto arrest of defendant for operating under the influence. Under the circumstances, however, the probable cause arrest was not unreasonable. Therefore, evidence gathered subsequent to the arrest is not suppressed.

2 Terry v. Ohio, 392 U.S. 1 (1968).

PROCEDURAL BACKGROUND

Violation Numbers 0701746, 0701747 and 0701748 respectively charging defendant with unsafe operation ( 36 C.F.R. § 4.22(b)(1)), operating under the influence ( 36 C.F.R. § 4.23(a)(1)) and failure to submit to a chemical test ( 36 C.F.R. § 4.23(c)(2)) were filed on January 3, 2008. (Docket Entry # 1). On December 8, 2008, defendant moved to suppress, which the Government opposed (Docket Entry # 14), arguing that LaMere lacked reasonable suspicion to make the traffic stop of defendant's vehicle. (Docket Entry ## 11 12). On January 30, 2009, the court denied that motion. (Docket Entry # 16). Following a reassignment of the matter to this court on February 2, 2009, defendant filed the above styled motion to dismiss or, in the alternative, to suppress evidence on July 6, 2009. (Docket Entry # 21). The Government opposes the motion. (Docket Entry # 24). This court heard argument at the April 13, 2010, motion hearing. On April 14, 2010, this court ordered an evidentiary hearing to evaluate whether and at what time a formal arrest, or restraint of a degree associated with an arrest, took place. The evidentiary hearing was held on June 10, 2010. The Government called one witness and defendant did not call any witnesses.

FACTUAL BACKGROUND ³

3 The factual record for this motion is comprised of: (1) the statements of probable cause in the citations (Docket Entry # 1) which were made under the penalty of perjury by LaMere on August 31, 2007; and (2) the sworn testimony of LaMere at the audio recorded June 10, 2010, evidentiary hearing.

Late in the evening of August 31, 2007, LaMere "observed a black Nissan Pathfinder . . . traveling West on 1^st Avenue," within the boundaries of the Park. (Docket Entry # 1, Violation No. 0701748). From his marked cruiser, LaMere saw that the "Nissan turned north onto 5^th Street . . . travel[ing] over the lane dividing line into the south bound lane with both front tires . . . [and then] traveling North for several yards with both the front and rear tire of the driver's side over the center dividing line." (Docket Entry # 1, Violation No. 0701748). "5^th Street" at that location lies within the Park's boundaries.

LaMere followed the vehicle as it made a turn onto Chelsea Street, into the Charlestown neighborhood of the City of Boston. LaMere initiated, by activating his cruiser lights, a traffic stop of the vehicle as the vehicle approached Congress Street. The purpose was to issue a traffic violation citation. As LaMere approached the vehicle, he observed a "strong odor of an alcoholic beverage." The driver, identified as defendant, "had watery [or glassy] eyes, [flush complexion], slurred speech and the strong odor of an alcoholic beverage on his person." (Docket Entry # 1, Violation No. 0701746). LaMere asked defendant to provide his license and registration and defendant "had difficulty retrieving his vehicle registration." (Docket Entry # 1, Violation No. 0701746). LaMere asked defendant if he had been drinking and where he was coming from and defendant responded that he had been on a friend's boat and had four or five beers. LaMere asked if defendant would take field sobriety tests and defendant complied.

LaMere conducted four field sobriety tests including a preliminary breath test. According to LaMere, defendant "showed several indications that he was impaired." (Docket Entry # 1, Violation No. 0701746). At that time, LaMere testified, he formed an opinion that defendant was intoxicated and unable to safely operate the vehicle. LaMere did not contact a member of the Boston Police Department. LaMere stated, "the next step in the procedure would be to transport [defendant] to a processing area where he would be processed, charged and released."

LaMere did not provide defendant with a Miranda ⁴ warning. He placed defendant in handcuffs and transported him in his cruiser approximately one quarter mile to the Park's prisoner processing area. At no point in time did LaMere tell defendant he was "under arrest," but instead informed him that he was "detained" for processing.

4 Miranda v. Arizona, 384 U.S. 436 (1966).

At the prisoner processing area, defendant was asked for identifying information. Defendant "was read the `notice to persons charged with operating under the influence of alcohol' sheet notifying him that he was required to submit to testing." (Docket Entry # 1, Violation No. 0701747). Defendant "refused to submit to a test to determine his breath alcohol concentration." (Docket Entry # 1, Violation No. 0701747).

DISCUSSION

Defendant moves to dismiss the complaint charging him with operating under the influence ( 36 C.F.R. § 4.23(a)(1)), unsafe operation ( 36 C.F.R. § 4.22(b)(1)) and refusal to submit to a chemical test ( 36 C.F.R. § 4.23(c)(2)). (Docket Entry # 21). In the alternative, defendant moves to suppress "the evidence obtained as a fruit of the illegal arrests." (Docket Entry ## 21 22). Defendant contends that "LaMere exceeded the scope of his statutory authority when he arrested the defendant outside the boundary of [sic] National Park Service." (Docket Entry # 22). He further argues that, "The refusal charge is not sustainable because the officer who had no jurisdiction to arrest the defendant and no jurisdiction to transport the defendant continues to lack jurisdiction to ask the defendant to submit to a chemical test." (Docket Entry # 22).

The Government opposes the motion raising four main arguments: (1) LaMere was statutorily and constitutionally permitted to stop defendant's vehicle outside the territory of the Park; (2) defendant was not arrested, but rather "temporarily detained under Terry"; (3) "even if [defendant's] detention for processing is deemed an arrest, evidence gathered . . . prior to his transport to the park ranger's office for processing, should not be suppressed"; and (4) "even if [defendant's] detention for processing is deemed an arrest, evidence obtained after his transportation . . . should not be suppressed because [it] is not an unreasonable Fourth Amendment seizure on the facts of this case." (Docket Entry # 24). This court will address the encounter between LaMere and defendant chronologically.

I. The Initial Vehicle Stop

Under 16 U.S.C. § 1a-6(b), United States Park Rangers may: (1) "make arrests without warrant for any offense against the United States committed in his presence" as long as "such arrests occur within that system or the person to be arrested is fleeing therefrom to avoid arrest," 16 U.S.C. § 1a-6(b)(1); and (2) "conduct investigations of offenses against the United States committed in that system," 16 U.S.C. § 1a-6(b)(3), without any geographic limit to the investigation, see H.Rep. No. 94-1569, 94^th Congress, 2^nd Session 18; United States v. Smith, 713 F.2d 491, 494 (9^th Cir. 1983); United States v. Strasnick, 2008 WL 2389789, *2 (D.Mass. June 10, 2008); United States v. Jones, 428 F.Supp.2d 497, 504 n. 5 (W.D.Va. 1996). Here, pursuant to 16 U.S.C. § 1a-6(b)(3), LaMere followed defendant outside the boundary of the Park to investigate a traffic violation observed within the Park. LaMere initiated the traffic stop as defendant approached Congress Street while on Chelsea Street. They were both outside the territory of the Park.

"The Supreme Court has long viewed the typical traffic stop to `resemble, in duration and atmosphere, the kind of brief detention authorized in Terry.'" United States v. Fernandez, 600 F.3d 56, 59 (1^st Cir. 2010) (quoting Berkemer v. McCarty, 468 U.S. 420, 439 (1984)). "Like the reasonable suspicion that criminal activity is afoot in the Terry context, the detection of a traffic violation permits officers to effect a limited seizure of the driver and any passengers consistently with the Fourth Amendment." Id. (citing Arizona v. Johnson, 129 S.Ct. 781, 788 (2009)); see also United States v. Chaney, 584 F.3d 20, 24 (1^st Cir. 2009) ("traffic stop constitutes a seizure . . . and thus must be supported by reasonable suspicion that a traffic violation has occurred"). Several courts analyzing 16 U.S.C. § 1a-6(b)(3) have held that "[t]here is no reason to believe that Congress intended the park police officers' authority to investigate be construed so narrowly as to exclude Terry stops."United States v. Smith, 713 F.2d 491, 494 (9^th Cir. 1993); see,e.g., United States v. Strasnick, 2008 WL 2389789, *3 (D.Mass. June 10, 2008) ("[b]ecause Ranger LaMere acted within his investigative powers pursuant to § 1 a-6(b)(3), for which there is no geographic limitation, he was authorized to stop Strasnick outside of the Park to investigate the traffic violation . . . that occurred inside of the Park"); United States v. Jones, 428 F.Supp.2d 497, 504 n. 5 (W.D.Va. 2006) ("Chartier also had the statutory authority to perform the stop outside the Park under § 1-6(b)(3)").

The court in an earlier opinion on this matter determined that "LaMere [had] specific and articulable facts to support his suspicion that the defendant committed a traffic violation warranting a stop." (Docket Entry # 16). This court has no reason to doubt that finding and in fact the evidence before this court confirms it. Therefore, LaMere permissibly stopped defendant's vehicle outside the Park for the purpose of investigating defendant's unsafe operation and issuing a citation.

II. Extension of the Vehicle Stop

Determining the reasonableness of a Terry stop involves a two-step inquiry. See United States v. Caine, 517 F.Supp.2d 586, 588 (D.Mass. 2007) (citing United States v. Walker, 924 F.2d 1, 3 (1^st Cir. 1991)). "To work the calculus of reasonable suspicion in the context of a traffic stop, an inquiring court must ask whether the officer's actions were justified at their inception, and if so, whether the officer's subsequent actions were fairly responsive to the emerging tableau." United States v. Chhien, 266 F.3d 1, 6 (1^st Cir. 2001). That analysis involves looking at the situation facing LaMere as a whole, see United States v. Trullo, 809 F.2d 108, 111 (1^st Cir. 1987), including "the circumstances originally warranting the stop, informed by what occurred, and what [he] learned, as the stop progressed." United States v. Chhien, 266 F.3d at 6.

As stated above, LaMere had reasonable suspicion, if not probable cause, ⁵ to stop defendant's vehicle to investigate the observed traffic violation. As LaMere approached defendant's vehicle, he observed signs that something more than the initial unsafe operation violation may have been afoot. "The first part of the [Terry] inquiry is satisfied if [the park ranger] can point to specific and articulable facts which, taken together with rational inferences derived from those facts, reasonably show that an investigatory stop was warranted." United States v. Maguire, 359 F.3d 71, 76 (1^st Cir. 2004) (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)). LaMere noticed that defendant had a flushed complexion, glassy eyes, slurred speech and the smell of alcohol. Defendant had difficulty retrieving his vehicle registration. Defendant admitted he had consumed alcohol earlier in the day.

5 The Supreme Court in Whren v. United States stated, "the District Court found that the officers had probable cause to believe that petitioners had violated the traffic code" and held that, "[t]hat rendered the stop reasonable under the Fourth Amendment." Whren v. United States, 517 U.S. 806, 819 (1996). The Court in Whren affirmed the D.C. District Court's holding that, "When a police officer observes a traffic violation, his subsequent stop of the vehicle is reasonable because it is supported by probable cause." United States v. Whren, 53 F.3d 371, 376 (D.D.C. 1995) (emphasis added). Here, LaMere observed defendant violate the traffic regulations of the Park.

A park ranger receives deference to "draw on [his] own experience and specialized training to make inferences from and deductions about the cumulative information available to [him] that might well elude an untrained person." United States v. Arvizu, 534 U.S. 266, 273 (2002). LaMere concluded he had reasonable suspicion to believe defendant was operating his vehicle under the influence of alcohol within the Park. This conclusion was reasonable given defendant's visible signs of intoxication and the smell of an alcoholic beverage. See Terry v. Ohio, 88 U.S. at 21 ("objective standard: would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate?").

LaMere then permissibly requested that defendant exit the vehicle, see Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6 (1977) ("once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment"), and conducted a series of field sobriety tests to "quell or confirm [his] suspicions." Klaucke v. Daly, 595 F.3d 20, 25 (1^st Cir. 2010). Conducting field sobriety tests is reasonable under the second step of the Terry analysis where a park ranger has reasonable suspicion that a driver is impaired. See, e.g., United States v. Maher, 454 F.3d 13, 18 n. 5 (1^st Cir. 2006); Rogala v. District of Columbia, 161 F.3d 44, 52 (D.C. Cir. 1998); United States v. Caine, 517 F.Supp.2d 586, 589-90 (D.Mass. 2007). At the conclusion of the tests, LaMere determined that defendant was intoxicated while driving in the Park and unable to safely operate the vehicle.

III. De Facto Arrest

Following the field sobriety tests, defendant was handcuffed, placed in the back of LaMere's cruiser and driven to the Park's prisoner processing area. According to the Government, defendant "was detained as part of an investigatoryTerry stop only as long as necessary in order that legitimate law enforcement processes could be completed, and [he] was not subject to a custodial arrest." (Docket Entry # 24) (emphasis added). Defendant contends that "the officer here did far more than conduct a Terry stop." (Docket Entry # 22). This court returns to the second Terry inquiry, "whether the scope of the investigatory stop was reasonable under the circumstances."United States v. Maguire, 359 F.3d 71, 77 (1^st Cir. 2004).

A Terry stop to investigate criminal behavior "permits officers to `stop and briefly detain a person for investigative purposes,' . . . and `diligently pursue [] a means of investigation . . . likely to confirm or dispel their suspicions quickly.'" United States v. Trueber, 238 F.3d 79, 91-92 (1^st Cir. 2001) (citing United States v. Sokolow, 490 U.S. 1, 7 (1989));United States v. Sharpe, 470 U.S. 675, 686 (1985). Here, after conducting the field sobriety tests, LaMere formed the opinion, much as he earlier suspected, that defendant had been operating under the influence within the Park. What occurred subsequent to the field sobriety tests crossed from a permissible Terry stop into the realm of a de facto arrest.

"There is no scientifically precise formula that enables courts to distinguish between investigatory stops . . . and . . . `de facto arrests.'" United States v. Zapata, 18 F.3d 971, 975 (1<sup>st</sup> Cir. 1994). "In cases regarding the scope of a Terry stop, we examine `whether there was "a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest."'" United States v. Maguire, 359 F.3d 71, 77 (1^st Cir. 2004). "[T]he relevant inquiry is how a reasonable [person] in the suspect's shoes would have understood [the] situation."United States v. Ventura, 85 F.3d 708, 711 (1^st Cir. 1996).

While the "use of handcuffs in the course of an investigatory stop does not automatically convert the encounter into a de facto arrest," their use is one indication that a de facto arrest may have taken place. See United States v. Acosta-Colon, 157 F.3d 9, 18 (1^st Cir. 1998) ("the use of handcuffs, being one of the most recognizable indicia of traditional arrest, `substantially aggravates the intrusiveness' of a putative Terry stop"). The Government has pointed to no "specific fact or circumstance" that would lead LaMere to reasonably believe that use of restraints "was necessary to carry out the legitimate purposes of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm." United States v. Acosta-Colon, 157 F.3d 9, 19 (1^st Cir. 1998) ("generalized statements are inadequate"); cf. United States v. Meadows, 571 F.3d 131, 141-42 (1^st Cir. 2009) (Government articulated that suspect may have been armed, involved in domestic dispute earlier in day and a flight risk); see United States v. Fornia-Castillo, 408 F.3d 52, 64 (1^st Cir. 2005) ("reasonable safety concerns permeated the [officer's] decision to use [handcuffs]"). Regardless, defendant was not merely handcuffed for a period of time and then released; rather, LaMere additionally relocated defendant to the park ranger's station.

"A valid investigatory stop can become an unconstitutional interference with a suspect's Fourth Amendment rights as police conduct becomes overly intrusive and amounts to an arrest." Shah v. J.W. Holloway, 2009 WL 2754406, *9 (D.Mass. Aug. 20, 2009). A "well-defined limitation is that a suspect may not be removed to a police station without his consent." Shah v. J.W. Holloway, 2009 WL 2754406, *9 (D.Mass. Aug. 20, 2009); see, Kaupp v. Texas, 538 U.S. 626, 630 (2003) ("involuntary transport to a police station for questioning is `sufficiently like arres[t] to invoke the traditional rule that arrests may constitutionally be made only on probable cause'"); Dunaway v. New York, 442 U.S. 200, 212-13 (1979) (finding "detention of petitioner was in important respects indistinguishable from a traditional arrest" where "he was . . . transported to a police station, and placed in an interrogation room"); see also Flowers v. Fiore, 359 F.3d 24, 34 (1^st Cir. 2004) (holding that officers involved "acted reasonably in dispelling [their] suspicion throughout the detention" and finding it "noteworthy that the officers never relocated Flowers to a station house or detention area"). Therefore, despite the fact that LaMere told defendant he was not under arrest, ⁶ the combination of placing defendant in handcuffs and transporting him to the park ranger station moves the encounter from a Terry stop to a de facto arrest. A reasonable person would have understood that he was not free to leave.

6 See Dunaway v. New York, 442 U.S. 200, 212-13 (1979) ("mere facts that petitioner was not told he was under arrest, was not `booked,' and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, . . . obviously do not make petitioner's seizure even roughly analogous to the narrowly defined intrusions involved in Terry") (emphasis added).

IV. Suppression

As mentioned previously, a United States Park Ranger may make warrantless arrests for offenses committed in his presence as long as such arrests occur within the park system or the person to be arrested is fleeing therefrom. See 16 U.S.C. § 1a-6(b)(1). Defendant points out that "no evidence indicates that [he] fled from the Park to avoid arrest or that he even knew that Officer Lamere [sic] had decided to follow [him]." (Docket Entry # 22). In order to determine whether a suspect is fleeing, district courts look to the location where a pursuing ranger activates his or her cruiser lights. See United States v. Jones, 428 F.Supp.2d 497, 501 (W.D.Va. 2006) (finding the defendant did not "flee" where the rangers "did not activate their blue lights, thereby initiating the stop, until after they had traveled outside of the Park"); United States v. Fox, 147 F.Supp.2d 1008, 1009 (N.D.Cal. 2001) (the defendant fled where ranger signaled the defendant to pull over by activating lights within the park, but the defendant drove an additional 200 yards outside the park before pulling over). LaMere testified that he initiated the traffic stop by activating his lights once he and defendant were outside the boundaries of the Park. Therefore, for purposes of 16 U.S.C. § 1a-6(b)(1), defendant did not flee the Park. Since the arrest occurred outside the Park system and defendant did not flee therefrom, LaMere was without federal statutory authority to make the arrest.

Mindful that "[s]uppression of evidence . . . has always been our last resort, not our first impulse," Hudson v. Michigan, 547 U.S. 586, 591 (2006), the issue before this court is whether the evidence gathered subsequent to the unlawful arrest should be excluded. See Wong Sun v. United States, 371 U.S. 471, 483 (1963) ("to make effective the fundamental constitutional guarantees of inviolability of the person . . . this Court held nearly half a century ago that evidence seized during[, and derived from,] an unlawful search could not constitute proof against the victim of the search"). The exclusionary rule is "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect on future unlawful police conduct, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U.S. 338, 348 (1974). "Where `the exclusionary rule does not result in appreciable deterrence, then . . . its use . . . is unwarranted.'" Arizona v. Evans, 514 U.S. 1, 10-11 (1995).

The First Circuit has "not resolved whether an arresting officer's lack of authority under state or federal law to conduct an otherwise constitutionally valid arrest constitutes an unreasonable seizure under the Fourth Amendment." Santoni v. Potter, 369 F.3d 594, 598 (1^st Cir. 2004) (declining to rule on the issue in favor of deciding the case on non-constitutional grounds). There is a split in the federal circuits on this issue.Compare Street v. Surdyka, 492 F.2d 368, 372-73 (4^th Cir. 1974) ("[t]here is significant distinction between police action which is unlawful because violative of constitutional provisions and police action which merely fails to accord with statute, rule or some other nonconstitutional mandate"); United States v. Jones, 185 F.3d 459, 463 (5^th Cir. 1999) (the relevant question when considering suppression of evidence is whether officials violated the Fourth Amendment, and concluding that state law deficiencies in arrest were irrelevant); and United States v. Bell, 54 F.3d 502, 504 (8^th Cir. 1995) ("we do not think Fourth Amendment analysis requires reference to an arrest's legality under state law"); with Malone v. County of Suffolk, 968 F.2d 1480, 1482-83 (2^nd Cir. 1992) (whether officers have valid authority to arrest pursuant to state law affects the constitutionality of the arrest); Ross v. Neff, 905 F.2d 1349, 1354 (10^th Cir. 1990) ("warrantless arrest executed outside of the arresting officer's jurisdiction is analogous to a warrantless arrest without probable cause" which is "presumptively unreasonable"); and United States v. Foster, 566 F.Supp. 1403, 1411-12 (D.D.C. 1983) ("concept of reasonableness embodied in the Fourth Amendment logically presupposes an exercise of lawful authority by a police officer").

This court looks to Virginia v. Moore for its historical analysis of "the norms that the Fourth Amendment was meant to preserve." Virginia v. Moore, 553 U.S. 164, 168 (2008). The Court in Moore was "aware of no historical indication that those who ratified the Fourth Amendment understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted." Id. "The immediate object of the Fourth Amendment was to prohibit the general warrants and writs of assistance that English judges had employed against the colonists." Id. (citing Boyd v. United States, 116 U.S. 616, 624-27 (1886)). "That suggests, if anything, that founding-era citizens were skeptical of using the rules for search and seizure set by government actors as the index of reasonableness." Id. Furthermore, "[n]one of the early Fourth Amendment cases that scholars have identified sought to base a constitutional claim on a violation of a state or federal statute concerning arrest."Id. at 169.

The Moore Court found it was not faced with "a case in which the claimant can point to `a clear answer [that] existed in 1791 and has been generally adhered to by the traditions of our society ever since.'" Atwater v. Lago Vista, 532 U.S. 318, 345 (2001). Here, as in Moore, no clear answer exists<sup>7</sup> from our founding era to determine whether the overstepping of a federal statute mandating geographic jurisdiction of federal officers runs afoul of Fourth Amendment protections. "When history has not provided a conclusive answer, [courts] have analyzed a search or seizure in light of traditional standards of reasonableness `by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" Virginia v. Moore, 553 U.S. at 171 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). "In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable." Id. at 171 (emphasis added).

7 This court notes additionally that neither party provides any argument or analysis regarding an historical interpretation of the Fourth Amendment.

"The underlying command of the Fourth Amendment is reasonableness, and the fact that an arrest may have violated a territorial-limitation statute . . . is merely a factor to be considered when deciding whether this constitutional mandate has been followed." United States v. Jones, 428 F.Supp.2d 497, 503 (W.D.Va. 2006).⁸ "[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed." Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (emphasis added). Here, LaMere witnessed defendant driving within the Park minutes before conducting the traffic stop. Based on his observations of defendant when he approached the vehicle and the results of the four field sobriety tests, LaMere undoubtedly had probable cause to believe that defendant had been operating under the influence within the Park. See, e.g.,United States v. Strasnick, 2008 WL 2389789, *4 (D.Mass. June 10, 2008) ("the odor of alcohol emanating from the vehicle, her impaired speech, and the results of the breath test and field sobriety tests indisputably provided him with probable cause for the OUI offense").

8 Defendant makes two arguments to distinguish Jones. First, "unlike Jones, the arrest here did not occur just outside the confines of the Park but fell well within the unmistakable boundaries of the City of Boston." (Docket Entry # 22). This court sees no reason to find that the distance from the boundary line has anything to do with the reasonableness analysis under the Fourth Amendment. It suffices to say that in each case they were outside the park boundary.
Defendant's second argument is that, "the arresting officer inJones transported the illegally arrested suspect to a local police station in Kentucky while the officer here transported the illegally arrested suspect back to the Charlestown Naval Yard." (Docket Entry # 22). Based on this court's earlier discussion regarding transporting defendant, no such distinction between a local police station and the federal ranger's station need be drawn. See Shah v. J.W. Holloway, 2009 WL 2754406, *9 (D.Mass. Aug. 20, 2009) (finding "that Shah's Fourth Amendment rights were violated when he was transported at the direction of [Federal Special Agent] Czellecz to the [Boston] police station").

The totality of the circumstances leading up to and including the arrest guide this court to the conclusion that LaMere's seizure of defendant was constitutionally reasonable. LaMere witnessed a traffic violation within the Park. He conducted a valid, albeit extraterritorial, traffic stop of defendant's vehicle. Upon reasonable suspicion, LaMere conducted a Terry investigation to confirm or dispel whether defendant had been operating under the influence within the Park. Following a series of field sobriety tests and a breath test, LaMere concluded that defendant was intoxicated and thus had probable cause that defendant had been operating under the influence within the Park. LaMere handcuffed defendant and removed him from the scene of the traffic stop to the park ranger's station; actions which amounted to a probable cause de facto arrest.

LaMere did, however, violate the federal statute enumerating his jurisdiction to make warrantless arrests. The House Report on 16 U.S.C. 1a-6(b) succinctly states, "Such arrests may occur within the system, or while the person to be arrested is fleeing from the system to avoid arrest." H.R. REP. 94-1569, *9, 2^nd Sess. 1976. The report goes on to say, "The Committee intends that the clear and specific enforcement authority contained in this subsection . . . will be implemented by the Secretary to ensure that law enforcement activities in our National Park System will continue to be viewed as one function of a broad program of visitor and resource protection." Id. (emphasis added).

LaMere's violation of his arrest authority, while clearly contrary to the specific intent of the federal legislature, does not convert the otherwise reasonable, probable cause-based arrest of defendant into an unreasonable one. See United States v. Caceres, 440 U.S. 741 (1979) (concluding that "evidence obtained in violation of Internal Revenue Service (IRS) regulations may be admitted at the criminal trial of a taxpayer" because "none of respondent's constitutional rights has been violated . . . by the agency violation of its own regulations"); United States v. Hensel, 699 F.2d 18, 29 (1^st Cir. 1983) ("the fact that an agency's employees may exceed the scope of a statute's or a regulation's authority does not automatically make their actions `unreasonable' either in Fourth Amendment terms or as a matter of ordinary understanding of reasonableness"). The discretionary placement of a park boundary line — subject to change by congressional or perhaps Department of the Interior amendment<sup>9</sup> — and the legislature's mandate that warrantless arrests by park rangers occur within that boundary, do not control whether a seizure is reasonable or not. It is akin to a state's choice to regulate the manner in which its officers conduct arrests, which the Supreme Court says goes above and beyond Fourth Amendment protection. Cf. Virginia v. Moore, 553 U.S. at 176 ("conclud[ing] that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections"); see United States v. Henry, 482 F.3d 27, 32 ("[t]he exclusionary rule was not fashioned to vindicate a broad, general right to be free of agency action not `authorized' by law").

9 The Charlestown Navy Yard geographic area includes: "the United States Ship Constitution and the lands generally depicted on the map entitled `Boundary Map: Charlestown Naval Shipyard — U.S.S. Constitution, Boston National Historical Park', numbered BONA 20,000 and dated March 1974 which shall be on file and available in the offices of the Director of the National Park Service, Department of the Interior, Washington, D.C." 16 U.S.C. § 410z(d).

In sum, LaMere entered the City of Boston pursuant to statutory authority for the purpose of issuing a traffic citation. While conducting a Terry investigation as a federal officer of the law, he gained probable cause for making an arrest. That probable cause, despite LaMere's statutory jurisdiction, made it reasonable under the Fourth Amendment. Since there was no unreasonable seizure, suppression is unwarranted. See Herring v. United States, 129 S.Ct. 695, 699 (2009) (exclusionary rule "designed to safeguard Fourth Amendment rights generally through its deterrent effect").

V. Refusal to Submit

Finally, defendant argues that, "The refusal charge is not sustainable because the officer who had no jurisdiction to arrest the defendant and no jurisdiction to transport the defendant continues to lack jurisdiction to ask the defendant to submit to a chemical test." (Docket Entry # 22). To the contrary, LaMere's request for a "chemical test" falls squarely within 36 C.F.R. § 4.23(c). "The starting point in statutory interpretation is `the language [of the statute] itself.'" United States v. Ramirez-Ferrer, 82 F.3d 1131, 1136 (1^st Cir. 1996). "When the words of a statute neither create ambiguity nor lead to an entirely unreasonable interpretation, an inquiring court need not consult other aids to statutory construction." Atlantic Fish Spotters Ass'n v. Evans, 321 F.3d 220, 224 (1^st Cir. 2003).

The regulation defendant is charged with violating is 36 C.F.R. § 4.23(c), which states:

At the request or direction of an authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section [prohibiting operating under the influence], the operator shall submit to one or more tests of the blood, breath, saliva or urine for the purpose of determining blood alcohol and drug content.

36 C.F.R. § 4.23(c)(1) (emphasis added). The next subsection, under which defendant is cited as violating, "[r]efusal by an operator to submit to a test is prohibited and proof of refusal may be admissable [sic] in any related judicial proceeding." 36 C.F.R. § 4.23(c)(2).

Here, the plain language of the statute presents no ambiguity or unreasonable interpretation. Nowhere in the regulation does it require that the refusal must occur within the park. Furthermore, LaMere, an "authorized person," had probable cause to believe that defendant had operated under the influence within the park. Therefore, it does not matter that LaMere brought defendant back onto park property before requesting that he submit to a chemical test.

CONCLUSION

For the foregoing reasons, defendant's Motion to Dismiss or, in the Alternative, Suppress Evidence (Docket Entry # 21) is DENIED. A status conference will be held on August 24, 2010, at 2:30 pm for purposes of setting down a trial date.