                                                          Supreme Court

                                                          No. 2012-251-M.P.
                                                          (21-2011-3139)


State of Rhode Island ex rel.        :
  Town of Little Compton

             v.                      :

     David Simmons.                  :




       NOTICE: This opinion is subject to formal revision before publication in
       the Rhode Island Reporter. Readers are requested to notify the Opinion
       Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
       Rhode Island 02903, at Tel. 222-3258 of any typographical or other
       formal errors in order that corrections may be made before the opinion is
       published.
                                                                 Supreme Court

                                                                 No. 2012-251-M.P.
                                                                 (21-2011-3139)


       State of Rhode Island ex rel.          :
         Town of Little Compton

                     v.                       :

             David Simmons.                   :


                   Present: Suttell, C.J., Goldberg, Flaherty, and Indeglia, JJ.

                                         OPINION

       Justice Flaherty, for the Court.        In the early morning hours on the day before

Christmas, two police officers from Little Compton had a discussion with the defendant, David

Simmons, in Tiverton about a motor-vehicle accident that had occurred in Little Compton. The

two officers transported the defendant in a police cruiser back to the scene, and once there, they

administered a series of field-sobriety tests, which the defendant failed. As a result, Simmons

was charged with driving under the influence of liquor or drugs in violation of G.L. 1956 § 31-

27-2; failure to maintain proper control of a motor vehicle, in violation of G.L. 1956 § 31-14-1;

and failing to report an accident, in violation of G.L. 1956 § 31-26-3. Before the District Court,

the defendant moved to dismiss the case, contending that the officers had unlawfully arrested

him in Tiverton, where they lacked the authority to do so. The trial judge agreed and suppressed

all the evidence; the inevitable result was a dismissal of the charges. The town filed a writ of




                                             -1-
certiorari challenging the dismissal, which we granted on December 22, 2012. On review in this

Court, Little Compton argues that the trial judge erred in granting the motion to dismiss because

the defendant was not arrested in Tiverton, and in fact, was not arrested until he and the police

officers had returned to Little Compton. On January 22, 2014, this case came before the

Supreme Court pursuant to an order directing the parties to appear and show cause why the

issues raised in this petition for certiorari should not summarily be decided. We have considered

the record and the written and oral submissions of the parties, conclude that cause has not been

shown, and proceed to decide the case without further briefing or argument. For the reasons set

forth in this opinion, we quash the judgment of the District Court.

                                        Facts and Travel

       Early in the morning of December 24, 2011, three police officers from the Little

Compton police department were assisting with a rescue call on Old Stone Church Road in that

town. At approximately 3:40 a.m., two of those officers, Officer Farrar and Corporal Harris, saw

a man running down the street clad in shorts and a T-shirt. About five minutes later, the Little

Compton dispatcher informed the officers that a one-car accident had occurred on Colebrook

Road and that the driver was nowhere to be found. The third officer, Corporal Hawes, reported

to the collision site while Farrar and Harris decided to pursue the erstwhile jogger they had seen

some moments before, surmising that he may have been involved in the accident.

       Crossing into the town of Tiverton, the officers spotted the still-running defendant and

pulled the cruiser alongside him. Farrar testified that he asked defendant if he was out for a jog;

defendant answered that he was. Harris then asked defendant if he had just been in an accident

and he admitted that he had. Harris got out of the police cruiser, approached defendant, patted

him down “for officer safety,” and asked him why he had left the accident.            During this




                                             -2-
interaction, Harris noticed a “strong odor of alcohol coming from [defendant’s] breath and that

Mr. Simmons’[s] eyes were extremely bloodshot and watery.” Simmons then asked the officers

what or whom he had hit and whether anyone had been injured. Harris testified that she told

defendant that she did not “believe anybody had been hurt, but that we needed to respond back to

the scene.” Simmons indicated that he would return with them, and he got into the backseat of

the police cruiser, which, as is typical of such vehicles, was separated from the front by a

partition. The officers neither handcuffed defendant nor read him the rights outlined in Miranda

v. Arizona, 384 U.S. 436 (1966). However, as is often the case, once he was in the back of the

police cruiser, Simmons was unable to open the door from the inside in the event he desired to

get out.

           When Simmons and the two officers returned to the scene of the accident in Little

Compton, defendant was released from the back of the cruiser and was advised to seek medical

attention from the on-site medical personnel, which he refused.         Significantly, he was not

restrained in any way. Harris then administered a series of field-sobriety tests to defendant that

he failed. Only then was defendant read his rights, handcuffed, and transported to the Little

Compton police station, where he was charged with driving under the influence in violation of

§ 31-27-2.

           On January 9, 2012, defendant filed a motion in the District Court to dismiss due to an

unlawful arrest, arguing that the Little Compton police officers exceeded their authority because

they arrested him in Tiverton. 1 The hearing for the motion to dismiss was held on July 27, 2012;



1
  It should be noted that two statutes authorize police officers to effect an arrest outside the
boundaries of their municipality. See G.L. 1956 § 12-7-19 (granting authority to arrest in any
city or town if police are in close pursuit of a suspect); G.L. 1956 § 45-42-1(a) (bestowing upon
police officers an emergency police power upon request of assistance from the police chief of
any city or town).


                                               -3-
the District Court judge rendered her decision on August 24, 2012. In arriving at her decision,

the trial judge dutifully considered the factors outlined in State v. Bailey, 417 A.2d 915 (R.I.

1980), to determine if defendant had been arrested in Tiverton. She concluded that the officers’

actions had amounted to an arrest because (1) once placed in the back of the cruiser, defendant

could not voluntarily leave it; (2) the police had not observed defendant commit any crimes; and

(3) the police had not informed defendant that he could decline to accompany them back to the

collision site in Little Compton. Therefore, the trial judge ruled that the arrest was unlawful, and

consequently, she suppressed all the evidence obtained from that point. With the evidence

suppressed, the trial judge dismissed the case. The town moved to stay the proceedings and

exercised its prerogative to file a petition for writ of certiorari to this Court, which we granted.

                                        Standard of Review

       “Our review of a case on certiorari is limited to an examination of ‘the record to

determine if an error of law has been committed.’” State v. Poulin, 66 A.3d 419, 423 (R.I. 2013)

(quoting State v. Greenberg, 951 A.2d 481, 489 (R.I. 2008)). “In addition to examining the

record for judicial error, ‘we inspect the record to discern if there is any legally competent

evidence to support the findings of the hearing justice below.’” Id. (quoting Brown v. State, 841

A.2d 1116, 1121 (R.I. 2004)). The Court does “not weigh the evidence on certiorari, but only

conduct[s a] review to examine questions of law raised in the petition.” WMS Gaming, Inc. v.

Sullivan, 6 A.3d 1104, 1111 (R.I. 2010) (quoting Greenberg, 951 A.2d at 489). We review

questions of law de novo. Id. (citing Lynch v. Rhode Island Department of Environmental

Management, 994 A.2d 64, 70 (R.I. 2010)).




                                               -4-
                                           Discussion

       On certiorari before this Court, the town argues that the trial judge committed reversible

error when she granted defendant’s motion to dismiss. The town contends that the arrest of

defendant occurred not in Tiverton, but in Little Compton, and not until after he failed the field-

sobriety tests. Thus, the town maintains that the interaction between defendant and police in

Tiverton did not constitute an arrest.

       According to G.L. 1956 § 12-7-7, “[a]n arrest is made by the restraint of the person to be

arrested or by his or her submission of his or her person to the custody of the person making the

arrest.” In Bailey, 417 A.2d at 917-18, we outlined several factors we consider to determine if

an arrest has been made. “These [factors] include the extent to which the person’s freedom of

movement was curtailed, the belief of a reasonable person under like circumstances, the degree

of force used by law enforcement and whether the person had the option of refusing to

accompany the police.” State v. Aponte, 800 A.2d 420, 425 (R.I. 2002) (citing State v. Kryla,

742 A.2d 1178, 1181 (R.I. 1999); Bailey, 417 A.2d at 917-18). It is important to note, however,

that we have cautioned that “[n]o one factor is dispositive. Rather we analyze the interchange

between a suspect and the authorities pragmatically to determine whether an arrest or seizure has

in fact occurred.” State v. Collins, 543 A.2d 641, 650 (R.I. 1988). Although the trial judge

correctly cited the Bailey factors and engaged in a thoughtful analysis, 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 police cruiser while it was in Tiverton.

       From the time of the initial conversation between the police officers and defendant until

defendant failed the field-sobriety tests, 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, according




                                             -5-
to Harris. Without question, that restriction was due to the understandable configuration of the

doors in the rear of the cruiser. The trial judge concluded that while he was in the back of the

police cruiser, defendant was “unable to voluntarily exit th[e] police cruiser.”           Although

defendant could not have opened the back door of the police cruiser himself, 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 of it as soon as the trio arrived at the scene

of the accident. In Collins, 543 A.2d at 645, the defendant agreed to allow the police to transport

him to his destination albeit “somewhat reluctan[tly].” This Court ultimately concluded that the

defendant had not been under arrest even though he also could not voluntarily leave the police

vehicle. Id. at 651. In this case, defendant did not convey that he had any reluctance whatsoever

to accompany the police back to the accident scene. If anything, his agreement to return to the

crash site by riding in the back of the police cruiser created the situation in which he could not

exit the vehicle without assistance from the outside.

       Moreover, although Harris conducted a pat-down of defendant for officer safety, 2 neither

he nor Farrar employed any amount of physical force in the course of their interaction with

defendant while they were in Tiverton. The defendant was not handcuffed when he was placed

in the cruiser, no weapons were displayed, nor was he surrounded by a large number of

uniformed police officers. See Collins, 543 A.2d at 651 (discussing that similar lack of physical

restraint by police was indicative of no arrest). In Aponte, 800 A.2d at 426, this Court held that

the defendant voluntarily accompanied the police, even accepting as accurate his testimony “that

2
 Such pat-downs are permitted by Terry v. Ohio, 392 U.S. 1 (1968). See State v. Duffy, 112
R.I. 276, 281, 308 A.2d 796, 799 (1973) (citing with favor federal Terry-pat standard), overruled
on other grounds, State v. McGehearty, 121 R.I. 55, 394 A.2d 1348 (1978); see also State v.
Taveras, 39 A.3d 638, 642 & n.6 (R.I. 2012).


                                              -6-
he was frisked and physically manhandled by the officers as he was led to the police car and

again into the station * * * .”

        With respect to the consideration of whether defendant had the option of refusing to go

with the police, the trial judge seems to have found it significant that the police did not inform

defendant that he was free to leave. In State v. Girard, 799 A.2d 238, 248 (R.I. 2002), the

defendant argued that the police had an affirmative duty to inform him that he was free to leave.

This Court declined to find such a duty stating, “[a]lthough the police did not tell [the defendant]

that he was free to leave; likewise, they never told him that he was not free to leave.” Id. (citing

Kryla, 742 A.2d at 1182). It is our opinion that the police were not obligated to inform Simmons

that he was not required to accompany them. 3

        The final consideration is “whether a reasonable person would have understood that he

was free to leave under like circumstances.” Aponte, 800 A.2d at 426. The Fourth Amendment

prohibition against unlawful seizures is in play “if, in view of all the circumstances surrounding

the incident, a reasonable person would have believed that he was not free to leave.” State v.

Ferola, 518 A.2d 1339, 1343 (R.I. 1986) (quoting Immigration and Naturalization Service v.

Delgado, 466 U.S. 210, 215 (1984)). This test is objective; a particular defendant’s personal

belief about whether he was free to leave is not material because “[t]he appropriate test is not

what defendant thought but what a reasonable person would think in similar circumstances.”

Aponte, 800 A.2d at 426.

        The hearing judge did not articulate whether or not she considered this aspect of the

Bailey factors; however, we believe that the outcome of this case weighs heavily on its

3
  The trial judge also appears to have based her decision in part on the fact that the police did not
observe defendant driving under the influence or fleeing from the scene of an accident. This
fact, which seems more appropriate in a probable-cause analysis, is not relevant to our
consideration of whether defendant was under arrest when he left Tiverton with the police.


                                              -7-
determination. After he was patted down, Simmons inquired of the officers about the accident,

asking what he had hit or if anyone had been hurt. Harris then responded by stating that she did

not believe anyone had been hurt, but that “we needed to respond back to the scene.” This

exchange is critical to our review because the statement by Harris, under the circumstances of

that morning, appears to indicate that defendant should return with them. Our jurisprudence

contains cases in which we have held that if the police ask the defendant to come to the station

with them, a reasonable person would feel free to decline. On the other hand, we have held that

police action constituted an arrest when police employ language that made it clear that the

defendant had no choice in the matter. Compare State v. Kennedy, 569 A.2d 4, 5-6 (R.I. 1990)

(holding the defendant was not under arrest when police asked him to go to the station and then

offered him a ride because he did not have transportation) with State v. Mattatall, 510 A.2d 947,

951-52 (R.I. 1986) (concluding that the defendant was not free to leave from the moment the

police ordered him to go to the station because the defendant was given no opportunity to

decline), vacated on other grounds, 479 U.S. 879 (1986), aff’d on other grounds, 525 A.2d 49

(R.I. 1987).

       In light of our previous holdings, we conclude that Harris’s statement was more like that

in Kennedy than the one in Mattatall. The defendant did not express any reluctance after being

asked to go with police, as occurred in Collins, but he instead exhibited a willingness to

accompany the police. Also, defendant was released, unrestrained, from the cruiser upon arrival

at the crash scene. See Aponte, 800 A.2d at 426 (“Significantly, [the] defendant was left alone

without restraints in the unmarked police vehicle for at least five minutes.”).

       We are satisfied that a reasonable person under like circumstances would have felt free to

leave when Harris stated that “we needed to respond back to the scene.” After considering the




                                              -8-
record in this case, viewed through the prism of the Bailey factors, we hold that the defendant

was not arrested by the Little Compton police while they were in Tiverton.

                                           Conclusion

       The judgment of the District Court is quashed. The papers in this case may be remanded

to the District Court with our decision endorsed thereon.

       Justice Robinson did not participate.




                                               -9-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                  Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State of Rhode Island ex rel. Town of Little Compton v. David
                      Simmons.

CASE NO:              No. 2012-251-M.P.
                      (21-2011-3139)

COURT:                Supreme Court

DATE OPINION FILED: March 25, 2014

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     District Court 2nd Division

JUDGE FROM LOWER COURT:

                      Associate Judge Colleen M. Hastings

ATTORNEYS ON APPEAL:

                      For Plaintiff: Thomas M. Bergeron, Esq.

                      For Defendant: Robert H. Humphrey, Esq.
