U.S. v. Atwell, 06-651-SKG.

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Citation470 F.Supp.2d 554
Docket NumberNo. 06-651-SKG.,06-651-SKG.
PartiesUNITED STATES of America v. William ATWELL.
Decision Date05 January 2007

William C. Atwell, III, Odenton, MD, pro se.

Leonard R. Stamm, Goldstein and Stamm PA, Greenbelt, MD, for William Atwell.

Plymouth D. Nelson, Office of the Staff Judge Advocate, Special Assistant U.S. Attorney, Fort George G Mead, MD, for United States of America.


GAUVEY, United States Magistrate Judge.

Defendant Atwell is charged with driving under the influence under Md.Code Ann. Transportation § 21-902(a) and failing to drive right of center under Md.Code Ann. Transportation § 21-301(a) and the Assimilative Crime Acts, 18 U.S.C. §§ 7, 13.

Pending before the Court is defendant William Atwell's ("defendant") motion to suppress all evidence and observations made in this case, because defendant was stopped off of federal property. In his motion, defendant makes two primary points: (1) that when a police officer effectuates a stop outside of his territorial jurisdiction, all evidence obtained after the arrest must be suppressed as illegally obtained; and (2) that a police officer outside of his jurisdiction may not stop an individual for a minor traffic offense. The government acknowledges that the stop and arrest took place beyond the special territorial jurisdiction of the United States, but argues that the arresting officer nonetheless had authority to arrest under Seip v. State of Maryland, 153 Md.App. 83, 835 A.2d 187 (2003). The Court agrees with defendant that Seip v. State does not authorize federal military officers to make an extra-territorial arrest. Further, the Court finds that there is no authority under any federal or state statute or governing Maryland common law for the extra-territorial arrest. However, the Court finds that the arrest was not unreasonable under the Fourth Amendment to the United States Constitution, and thus the evidence derived as a result of the arrest will not be suppressed and the defendant's motion is DENIED.

I. Factual Background

A suppression hearing was held on November 13, 2006. Based on the testimony and exhibits from that hearing, and stipulations and admissions of the parties, the Court finds the following facts relevant to the suppression issue.

On October 30, 2005, Sergeant Jeffrey M. Jackson ("Sgt. Jackson" or "Sergeant"), a uniformed traffic accident investigator and patrol officer with the Fort Meade Military Police,1 was riding in an unmarked vehicle. At approximately 2:30 am as he was leaving Fort Meade ("base") in the vicinity of Reece. Road, he observed defendant's vehicle traveling eastbound on Maryland Route 175 ("Route 175") at what he believed was approximately 20 miles per hour over the 40 miles per hour speed limit.2 The area was well lit, and there was no other traffic in the immediate area.

Sgt. Jackson made a right turn through the red light onto Route 175 and drove at a speed of approximately 70 miles per hour for a quarter of a mile to catch up with defendant who was traveling in the leftmost lane of the two eastbound traffic lanes. When he was roughly ten feet behind defendant and both vehicles were about one-eighth of a mile from the intersection of Route 175 and Mapes Road, Sgt. Jackson observed defendant's vehicle "driving back and forth in his lane" and repeatedly cross both the line dividing the two eastbound lanes and the solid yellow line that separates the left-most eastbound lane from a dual turn or "suicide" lane.3 Based on this weaving, the initial instance of which was sufficiently "severe," according to Sgt. Jackson, to prompt a traffic stop, defendant became a suspect for driving under the impairment of alcohol ("DUI"). Sgt. Jackson engaged his unmarked vehicle's emergency equipment which included a siren as well as dash lights, strobe lights in the tail and head lights, and lights on the grill.4 He remained close behind defendant when the latter turned left onto Mapes Road.5 Believing that defendant was not going to stop, Sgt. Jackson was ready to call for backup when defendant turned right into a Dunkin' Donuts parking lot located roughly seventy-five feet from Route 175.6 Having noticed on his own the Sergeant's pursuit of defendant, an Anne Arundel County police officer ("county officer" or "officer") pulled into the parking lot around this same time. Aware that he was outside of the jurisdiction of the United States Army, Sgt. Jackson asked the county officer if he wanted to handle the arrest. Because he considered it Sgt. Jackson's stop, the officer declined.7

When Sgt. Jackson approached defendant's vehicle, he noticed a strong odor of alcohol emanating from defendant as well as defendant's bloodshot eyes. Defendant exhibited no abnormal behavior when he exited his vehicle, but his speech was slurred and incoherent before, during, and after Sgt. Jackson's administration of field sobriety tests ("FSTs").8 The county officer remained on the scene throughout the FSTs and until defendant was taken into custody. Because no "intox operator" was on duty at Fort Meade at the time of the arrest, the county officer, a qualified "intox operator," administered the breath test to defendant.

Defendant was subsequently charged with a Class A misdemeanor, driving under the influence per se under Md.Code. Ann. Transportation § 21-902(a), and failing to drive right of center under Md. Code. Ann. Transportation § 21-301(a), under the Assimilative Crimes Act, 18 U.S.C. §§ 7, 13.

II. Analysis

Under the Assimilative Crimes Act, federal police officers may arrest individuals for offenses that occurred in an area where the United States has exclusive or concurrent jurisdiction under the penal laws of the relevant state. 18 U.S.C. § 7; Wharton's Criminal Procedure at § 2.9 (14th ed.2006).

In this case, the government concedes that the stop of the defendant did not occur in an area where the United States has exclusive or concurrent jurisdiction. The sole issue before the Court is whether a military police officer, after viewing a traffic violation within his or her jurisdiction, has authority to follow defendant in fresh pursuit and subsequently arrest defendant outside of the jurisdiction.

No federal statute grants military police officers authority to engage in fresh pursuit and effect a warrantless arrest outside of their jurisdiction of persons committing misdemeanors that do not constitute a breach of the peace.9

In the absence of federal statutory authority for such a warrantless arrest, the law of the state where the arrest occurred applies. United States v. DiRe, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210 (1948); United States v. Haskin, 228 F.3d 151, 153 (2d Cir.2000); United States v. Viale, 312 F.2d 595, 599 (2d Cir.1963)(determining whether IRS agents who arrested without statutory authority had authority to make an arrest); William E. Ringle, Searches and Seizures, Arrests and Confessions § 23:23 (2006).

As will be discussed in greater detail below, the Maryland General Assembly has not authorized military police to effect a stop and arrest under the circumstances of this case. Moreover, the common law does not sanction an arrest under the facts here. While the Court takes alcohol-related driving offenses very seriously, where the Maryland legislature has thoroughly regulated when both intrastate police officers and officers from other jurisdictions may engage in fresh pursuit and arrest outside their jurisdiction and the Congress has not legislated in this area, the Court will not invade the province of the state legislature (or the Congress) to create new laws on the subject. See United States v. Foster, 566 F.Supp. 1403, 1412 (D.D.C. 1983)("While we share Officer McKenzie's civic concern about' reckless, unlicensed drivers, we must also give due regard for the carefully delineated jurisdictional boundaries imposed on local law enforcement personnel by the legislature.").

A. Statutory Authority

The government argues that the arrest was authorized under Maryland Code. Ann. Criminal Procedure § 2-301. Under this provision, a law enforcement officer may engage in fresh pursuit of a person "who has committed or is reasonably believed to have committed a misdemeanor in the presence of law enforcement officers in the jurisdiction in which the law enforcement officer has the power to arrest."

In support of its position, the government cites Seip v. State of Maryland, 153 Md.App. 83, 835 A.2d 187 (2003)(an Ocean City policeman observed a driving misdemeanor in the city and followed the car outside of his jurisdiction to another Maryland county). Seip solely concerns the authority of a city police officer to engage in fresh pursuit beyond his jurisdiction, not the authority of a federal military police officer. The government failed to cite any authority that § 2-301 applies to Fort Meade military police officers.

Indeed, the statutory text suggests that the Maryland legislature did not intend § 2-301 to apply to federal military police officers. The legislature restricted the application of § 2-301 to "law enforcement. officer[s] of a jurisdiction in the State who [engage] in fresh pursuit of a person in the State." Md.Code. Ann. Criminal Procedure § 2-301(a). Although the Maryland legislature includes within the definition of a "police officer" persons in 22 state and local government agencies,10 the definition does not expressly include either the Fort Meade police department or federal military police. Md.Code. Ann. Criminal Procedure § 2-101.

Moreover, a separate statutory provision addresses the authority of federal enforcement officers to make arrests within the state. Md.Code. Ann. Criminal Procedure § 2-104(b) provides that

(1) subject to the limitations of paragraph (2) of this subsection,11 a federal law enforcement officer may:

(i) make arrests as set...

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