           United States Court of Appeals
                        For the First Circuit

No. 11-2341

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                             KEVIN RYAN,

                        Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Patti B. Saris, U.S. District Judge]



                               Before

                    Howard, Ripple* and Thompson,
                           Circuit Judges.


     Gary G. Pelletier, with whom Pelletier Clarke & Caley, LLC was
on brief, for appellant.
     Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.



                         September 30, 2013




     *
         Of the Seventh Circuit, sitting by designation.
             HOWARD, Circuit Judge. A federal law enforcement officer

makes a lawful traffic stop and sees that the driver of the stopped

car is intoxicated. He arrests the driver, even though the officer

is outside of the jurisdiction in which he is authorized to make

arrests.      At the driver's trial, does the Fourth Amendment's

prohibition against "unreasonable searches and seizures" require

the court to exclude evidence obtained after the arrest?        We hold,

in the circumstances of this case, that it does not.

                                I. Background

             On the night of August 31, 2007, appellant Kevin Ryan was

driving within the Charlestown Navy Yard, which is part of the

Boston National Historic Park (the "Park"), a federal enclave. From

his marked cruiser, United States Park Ranger David LaMere saw Ryan

driving over the center line of the road.        LaMere followed Ryan,

turned on his cruiser lights, and stopped Ryan to issue a citation.

By the time LaMere turned on his lights, however, he and Ryan had

left the Charlestown Navy Yard and were no longer on federal land.

LaMere noticed that Ryan smelled strongly of alcohol, was slurring

his speech, and had difficulty retrieving his vehicle registration.

LaMere asked Ryan if he had been drinking, and Ryan admitted that

he had consumed four or five beers.         Ryan voluntarily took four

field sobriety tests, which "showed several indications that he was

impaired,"     according   to    LaMere.    Believing   that   Ryan   was

intoxicated and could not safely operate his vehicle, LaMere


                                     -2-
arrested Ryan and took him to the Park's prisoner processing area.1

There,     Ryan    refused   to   submit       to   a   test   to    determine   the

concentration of alcohol in his breath.

             The    government        charged       Ryan   with     three    federal

violations:        operating a motor vehicle under the influence, 36

C.F.R. § 4.23(a)(1); unsafe operation of a motor vehicle, id.

§ 4.22(b)(1); and refusal to submit to a breath alcohol test, id.

§ 4.23(c)(2).       Ryan moved to suppress evidence arising from his

arrest on the grounds that LaMere had no statutory authority to

arrest him outside the Park.           While there is no geographical limit

on   the    ability    of    United    States       Park   Rangers    to    "conduct

investigations of offenses against the United States committed in

[the National Park] system," 16 U.S.C. § 1a-6(b)(3), they may make

warrantless arrests only "within that system," id. § 1a-6(b)(1).2

The magistrate judge presiding over the case agreed that LaMere

lacked statutory authority to arrest Ryan, but she refused to

suppress the evidence because the arrest was not an unreasonable

seizure within the meaning of the Fourth Amendment.                    Following a

trial, the magistrate judge found Ryan guilty of unsafe operation



      1
       The government argued before the district court that
LaMere's actions did not constitute an arrest, but the court
disagreed. The government no longer disputes this issue.
      2
       There is an exception to this rule when "the person to be
arrested is fleeing [from the National Park system] to avoid
arrest," 16 U.S.C. § 1a-6(b)(1), but the government does not argue
that Ryan was fleeing from LaMere.

                                         -3-
and refusal to submit to a breath alcohol test, and not guilty of

operating under the influence.            Ryan appealed his conviction to a

district judge, who affirmed the magistrate judge's decision not to

suppress the evidence gathered after the arrest.                      Ryan timely

appealed to our court.

                                    II. Analysis

             When reviewing the denial of a motion to suppress, we

review the district court's factual findings for clear error and

its legal conclusions de novo.            United States v. Kearney, 672 F.3d

81, 88-89 (1st Cir. 2012).              Here, there are no disputed factual

findings and only one disputed legal conclusion:                  that the Fourth

Amendment does not require exclusion of evidence gathered after an

arrest   made    outside      of    a   federal    law    enforcement      officer's

statutory jurisdiction.            Ryan does not claim that anything about

his   arrest    was   unconstitutional          other    than   LaMere's    lack    of

authority.

             The Supreme Court has not spoken to this precise issue,

but it did hold in Virginia v. Moore, 553 U.S. 164 (2008), that the

Fourth   Amendment     does    not      require   the    exclusion   of    evidence

obtained in a search incident to an arrest that violates state law.

In Moore, two police officers in the city of Portsmouth, Virginia

arrested the defendant for driving on a suspended license.                         Id.

at 166-67.     When conducting a search incident to that arrest, they

discovered crack cocaine and cash, which led to state-law charges


                                          -4-
against the defendant for possession of cocaine with intent to

distribute. Id. at 167. Because driving on a suspended license is

not an arrestable offense under Virginia law, the defendant moved

to suppress the evidence obtained in the search.     Id.    The trial

court denied the motion, and the defendant was convicted after a

bench trial.   Id. at 168.   On appeal, the Supreme Court held that

the Fourth Amendment did not prohibit the defendant's arrest or

require the exclusion of evidence.     Id. at 176, 178.

          The Court's decision in Moore relied on both the history

and policy underlying the Fourth Amendment's protection against

"unreasonable searches and seizures."

          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.      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. . . . No early case or
          commentary, to our knowledge, suggested the
          Amendment   was    intended   to    incorporate
          subsequently enacted statutes.     None 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 168-69 (citations omitted).     Finding no indication in the

history of the Fourth Amendment that an arrest in violation of a

statute would be an unreasonable seizure, the Court analyzed the

arrest "in light of traditional standards of reasonableness 'by

assessing, on the one hand, the degree to which it intrudes upon an


                                 -5-
individual's privacy and, on the other, the degree to which it is

needed for the promotion of legitimate governmental interests.'"

Id. at 171 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).

On this point, the Court held 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.   Whether

a state law limits the officer's power to arrest is irrelevant, the

Court held, because "when States go above the Fourth Amendment

minimum, the Constitution's protections concerning search and

seizure remain the same."     Id. at 173.

           Moore would readily dispose of Ryan's arguments for

suppressing the evidence against him, but for two distinctions

between that case and this one. First, Moore involved a seizure in

violation of state law, not federal law.        Second, the law at issue

in Moore limited an officer's power to arrest based on the type of

offense committed, while the law at issue here limits the territory

in which LaMere had the power to arrest.            Neither distinction

provides a reason to suppress the evidence against Ryan.

           Moore itself suggests that neither federal nor state

statutes affect whether a seizure is unreasonable under the Fourth

Amendment: "None 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.


                                   -6-
at 169 (emphasis added).     Although much of the discussion in Moore

focused on issues specific to state law, the Court repeatedly

stated      that   an   arrest   supported     by   probable   cause   is

constitutionally reasonable, id. at 171, 173, 175, 177-78, without

implying an exception for an arrest in violation of a federal

statute.3

             We ourselves have "not resolved whether an arresting

officer's lack of authority under . . . 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 (1st Cir. 2004). Nevertheless, our precedent, like Moore,

suggests that such an arrest does not warrant the exclusion of

evidence. In United States v. Hensel, 699 F.2d 18 (1st Cir. 1983),

officers of the United States Coast Guard, along with Canadian law

enforcement officers, searched a vessel off the coast of Canada and

discovered several tons of marijuana.         The defendant argued that

evidence gathered during the search should have been suppressed

because the Coast Guard officers exceeded their statutory authority


     3
       The Supreme Court has suppressed evidence for violations of
federal statutes in a "few cases," but only when "the excluded
evidence arose directly out of statutory violations that implicated
important Fourth and Fifth Amendment interests." Sanchez-Llamas v.
Oregon, 548 U.S. 331, 348 (2006).      Ryan has not identified an
important Fourth or Fifth Amendment interest implicated by his
arrest. In addition, some federal statutes explicitly prohibit the
use of evidence obtained in violation of those statutes. E.g., 18
U.S.C. § 2518(10)(a)(i) (permitting a motion to suppress the
contents of an unlawfully intercepted communication). The statute
at issue in this case contains no such prohibition.

                                   -7-
to conduct searches.         Id. at 26.      We assumed without deciding that

the officers exceeded their authority, but we stated that "[t]he

exclusionary rule was not fashioned to vindicate a broad, general

right to be free of agency action not 'authorized' by law, but

rather to protect certain specific, constitutionally protected

rights of individuals."            Id. at 29.       As the Supreme Court would

later do in Moore, we emphasized that "the search did not invade

[the defendant's] Fourth Amendment privacy interests, for the

search was supported by 'probable cause.'"               Id. at 30.       Therefore,

we "reject[ed] the argument that the Coast Guard's violation of the

statute   .    .   .   in   [that]     case    require[d]       us   to   apply   the

exclusionary rule."         Id.    The same is true here:            Because Ryan's

arrest was supported by probable cause, it did not violate his

Fourth Amendment privacy interests, and the district court was not

required to exclude the evidence obtained following the arrest.

              As to the territorial limit on LaMere's jurisdiction,

Moore again implies that an extraterritorial arrest is not a per se

violation of the Fourth Amendment.              In Moore, the Supreme Court

stated without qualification that an arrest supported by probable

cause is constitutionally reasonable.                To be sure, the Court has

clarified     that     a   balancing    of    interests    is    appropriate      for

"searches     or   seizures       conducted    in   an   extraordinary      manner,

unusually harmful to an individual's privacy or even physical

interests--such as, for example, seizure by means of deadly force,


                                        -8-
unannounced entry into a home, entry into a home without a warrant,

or physical penetration of the body."   Whren v. United States, 517

U.S. 806, 818 (1996) (citations omitted).   But in Whren, the Court

held that a traffic stop by plainclothes officers "does not

remotely qualify as such an extreme practice."   Id.   Likewise, for

an officer to arrest an obviously intoxicated driver just outside

that officer's territorial jurisdiction, after a lawful traffic

stop, is "not remotely" akin to the invasions of privacy that might

call for the exclusion of evidence.4

          The weight of authority from other courts of appeals

supports our conclusion.   Although we observed in Santoni that the

courts are divided on "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," 369 F.3d at 598, subsequent decisions

have rejected the proposition that this lack of authority makes an

arrest per se unreasonable.   The Tenth Circuit's decision in Ross

v. Neff, 905 F.2d 1349 (10th Cir. 1990), which we cited in Santoni,

has since been limited to cases involving warrantless arrests by

state police on federal tribal land.    United States v. Jones, 701

F.3d 1300, 1312 (10th Cir. 2012) (holding that an arrest in Kansas


     4
       Because Ryan was arrested after a lawful traffic stop, we
need not consider whether suppression would be appropriate if
LaMere were acting in circumstances wholly divorced from his
authority (for example, by arresting someone while on vacation in
another state).

                                -9-
by Missouri police officers did not violate the Fourth Amendment).

And the Second Circuit's decision in Malone v. County of Suffolk,

968 F.2d 1480 (2d Cir. 1992), which we also cited in Santoni, must

be read in light of United States v. Wilson, 699 F.3d 235 (2d Cir.

2012), in which that court found no violation of the Fourth

Amendment when an extraterritorial arrest violated New York law and

federal policy.    Other courts of appeals have agreed that an

extraterritorial arrest may comply with the Fourth Amendment.

United States v. Sed, 601 F.3d 224 (3d Cir. 2010); United States v.

Goings, 573 F.3d 1141 (11th Cir. 2009); Engleman v. Deputy Murray,

546 F.3d 944 (8th Cir. 2008); Pasiewicz v. Lake Cnty. Forest

Preserve Dist., 270 F.3d 520 (7th Cir. 2001).5

          In short, Ryan's arrest does not constitute the kind of

invasion of privacy that the Fourth Amendment prohibits.       The

district court correctly refused to exclude the evidence that

LaMere obtained after that arrest.

                         III. Conclusion

          The judgment of the district court is affirmed.




     5
       In Pasiewicz, the court stated that the result might have
been different if the arresting officers had known that they lacked
jurisdiction and made an arrest in violation of a specific
prohibition by the police department in whose jurisdiction they
acted. 270 F.3d at 527.

                               -10-
