State v. Harding

¶1Robert E. Harding appeals his conviction after a jury trial in the Superior Court, Androscoggin County, of operating a motor vehicle while under the influence of intoxicating liquor, 29 M.R.S.A. § 1312-B (Supp.1985) and operating after being adjudicated an habitual offender, 29 M.R.S.A. § 2298 (Supp.1985). Harding contends, inter alia, that all evidence resulting from his arrest should have been suppressed because the arrest was unlawful. We reject Harding’s contention and affirm his conviction.

¶2I.

¶3On November 8, 1983, at approximately 10:00 p.m., Raymond Cloutier was stopped in his car at a railroad crossing in Liver-more Falls behind a green van driven by Harding. The van rolled back into Cloutier’s car. Cloutier approached the van and asked Harding if the police should be called. Harding apparently responded that he lived at 9 Church Street in Jay and that he would take care of any damage without recourse to the police. Harding did not inform Cloutier of his name or show his motor vehicle operator’s license nor did Cloutier request any information. The two men inspected the vehicles and apparently agreed that neither vehicle was damaged. Shortly after Cloutier got back into his car, the van again rolled back and bumped into his car. Both vehicles then left the crossing and Cloutier proceeded to the Liver-more Falls police station to report the incident.

¶4*472At the station Cloutier told Officer Benson of the Livermore Falls police department that he had been involved in an accident and that the other driver lived at 9 Church Street in Jay. He also told Officer Benson that there was little damage to his car but that he thought the other driver might be intoxicated. Benson left for Church Street in his cruiser followed by Cloutier in his own car. En route, Officer Benson radioed Officer Poisson, a Jay police officer, to meet him at Church Street. The Jay address, although physically proximate to the scene of the incident, is in another town and county.

¶5As Officer Benson arrived at 9 Church Street, he saw a van meeting Cloutier’s description backing into the driveway. He parked his cruiser in front of the driveway, blocking any escape of the van. Benson approached Harding who had left the driver’s seat and entered the back of the van. Benson requested that Harding get out of the van and began asking him questions. Harding did not identify himself and became agitated and angry. After speaking to and observing Harding, Benson concluded that he was intoxicated and arrested him for OUI.

¶6Benson testified that he went to the Church Street address to investigate the report of a hit and run accident and a possible violation of 29 M.R.S.A. § 894 (Class E offense of leaving the scene of an accident without giving name, address and registration number of the vehicle). He further testified that it was not then his intention to make an arrest for OUI.

¶7Harding was indicted for operating under the influence and operating after being adjudicated an habitual offender. Both indictments arose out of the incident and arrest that occurred on November 8, 1983. Harding’s Motion to Suppress Evidence obtained as a result of the stop and arrest on November 8, 1983, was denied. A jury trial resulted in a guilty verdict on each count.

¶8II.

¶9Harding contends that all the evidence resulting from his arrest should have been suppressed because the pursuit and initial stop were unlawful under 30 M.R.S.A. § 2364 (1978).1 The motion justice determined that Benson’s pursuit of Harding was instant pursuit with intent to apprehend as required under § 2364 for misdemeanors and traffic infractions. We disagree. We explained in State v. Carey, 412 A.2d 1218, 1220-22 (Me.1980) that the section 2364 distinction between felonies and misdemeanors has its origin in the common law limitation upon the power of a police officer to make a warrantless arrest. Because an officer can arrest without a warrant for the class E violation of section 894 only when the offense is committed in his presence, the officer can be in instant pursuit within the meaning of section 2364 only after such an offense has been committed in his presence. Our determination that Benson did not pursue Harding “instantly,” however, does not mean Harding’s arrest was rendered unlawful by section 2364.

¶10Section 2364 deals with the power of a municipal law enforcement officer to arrest persons outside the limits of the municipality. Nothing contained therein prohibits Benson’s trip to Church Street to investigate the possible violation of section 894. Even if we consider Benson’s approach to Harding as a “stop,” such an investigatory stop was easily justified in *473these circumstances. See State v. Cyr, 501 A.2d 1303 (Me.1985). After Benson approached Harding and observed his condition, Benson had ample probable cause to believe the offense of operating under the influence had occurred in Livermore Palls. We now analyze Benson’s authority to arrest for that offense under the interpretation of section 2364 adopted in Carey.

¶11In Careywe applied the “felony” standard of fresh pursuit to an OUI arrest specifically because the Legislature has authorized arrest for OUI without a warrant upon probable cause. The felony standard is merely “pursuit without unreasonable delay” rather than “instant pursuit.” Comparing the uncontroverted facts in this case with those in Carey, we have no hesitation in saying that at the moment of arrest Benson had pursued Harding without unreasonable delay. We see no reason why Benson’s authority should not be measured at the moment of arrest and by the nature of the offense upon which arrest was effected regardless of the nature of the offense he set out to investigate. The ruling of the trial court was correct, albeit for the wrong reason.

¶12Other claims of error asserted by Harding are unpreserved, without merit and do not warrant discussion.

¶13The entry is:

¶14Judgment affirmed.

¶15McKUSICK, C.J., and NICHOLS, WATHEN and GLASSMAN, JJ., concurring.