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  • STATE OF RHODE ISLAND & PROVIDENCE PLANTATIONS PROVIDENCE, Sc. DISTRICT COURT SIXTH DIVISION Michael Rhodes : : v. : A.A. No. 16 - 045 : Town of Burrillville : (RITT Appeals Panel) :

    O R D E R

    This matter is before the Court pursuant to 8-8-8.1 of the General Laws for review

    of the Findings and Recommendations of the Magistrate.

    After a de novo review of the record and the memoranda of counsel, the Court finds

    that the Findings & Recommendations of the Magistrate are supported by the record, and

    are an appropriate disposition of the facts and the law applicable thereto.

    It is, therefore, ORDERED, ADJUDGED AND DECREED,

    that the Findings and Recommendations of the Magistrate are adopted by reference as the

    Decision of the Court and the decision of the Appeals Panel is AFFIRMED IN PART and

    REVERSED IN PART. The case is hereby REMANDED to the Traffic Tribunal for further

    proceedings consistent with the attached opinion.

    Entered as an Order of this Court at Providence on this 10th day of August, 2017.

    By Order: ___/s/______________ Stephen C. Waluk Chief Clerk

    Enter: ___/s/_____________ Jeanne E. LaFazia Chief Judge

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    STATE OF RHODE ISLAND & PROVIDENCE PLANTATIONS

    PROVIDENCE, Sc. DISTRICT COURT

    SIXTH DIVISION

    Michael Rhodes :

    :

    v. : A.A. No. 2016-045

    : (T13-0072)

    Town of Burrillville : (13-416-501401)

    (RITT Appeals Panel) :

    F I N D I N G S & R E C O M M E N D A T I O N S

    Ippolito, M. When Officer Ryan Hughes of the Burrillville Police

    Department stopped Mr. Michael Rhodes for speeding and other civil

    traffic violations, he believed that he was in the midst of an especially

    dangerous encounter. And so, he ordered the motorist out of his vehicle

    at gunpoint, directed him down onto his knees, instructed him to lift his

    shirt, handcuffed him, patted him down, and placed him in the rear of

    his cruiser (while he searched the motorists car).

    Perceiving certain indicia of the consumption of alcohol on the

    person of Mr. Rhodes, the officer administered standard field sobriety

    tests (FSTs), which, in the officers estimation, he failed; he also failed a

  • 2

    preliminary breath test (PBT). As a result, Officer Hughes decided to

    formally arrest Mr. Rhodes for suspicion of driving under the influence.

    Later, Mr. Rhodes was cited for the civil offense of refusal to submit to a

    chemical test, in violation of Gen. Laws 1956 31-27-2.1, upon which he

    was convicted by a magistrate of the Rhode Island Traffic Tribunal

    (RITT). That conviction was affirmed by an RITT appeals panel.

    Before this Court, Mr. Rhodes argues as he did at trial and

    before the appeals panel that when he did as Officer Hughes

    instructed, he was under arrest. He alleges that this arrest was illegal,

    under the Fourth Amendment to the United States Constitution and

    Article I, Section 6 of the Rhode Island Constitution, because the officer

    was not in possession of facts from which he could form probable cause to

    believe that Mr. Rhodes had committed an arrestable offense drunk-

    driving or any other. And, since his arrest was unlawful, he urges that

    all evidence collected as a result of that arrest should have been

    suppressed pursuant to the exclusionary rule of the Fourth Amendment

    (made applicable to the states by the Fourteenth Amendment) and the

    corresponding Rhode Island provision, which is found in Gen. Laws 1956

    9-19-25.

    The members of the appeals panel unanimously agreed that Mr.

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    Rhodes had been subjected to an illegal arrest, but a majority declined to

    suppress the evidence which had been collected, for two reasons: first,

    they held that both the federal and Rhode Island exclusionary rules do

    not apply to the trial of civil traffic offenses, such as refusal to submit to

    a chemical test; and second, they held that the evidence obtained was in

    plain view and thereby not subject to suppression. The dissenting

    member concluded that the exclusionary rule should apply to refusal

    trials.

    Jurisdiction for the instant appeal is vested in the District Court

    by Gen. Laws 1956 31-41.1-9; the applicable standard of review is

    found in Gen. Laws 1956 31-41.1-9(d). This matter has been referred to

    me for the making of findings and recommendations pursuant to Gen.

    Laws 1956 8-8-8.1.

    For the reasons I will explain in this opinion, I shall recommend

    that this Court find that the appeals panels substantive ruling that

    Mr. Rhodes detention constituted a de facto arrest not supported by

    probable cause and was illegal under both the Fourth Amendment and

    Article I, Section 6 of the Rhode Island Constitution was not clearly

    erroneous. And while I agree with the appeals panel that the Fourth

    Amendments exclusionary rule does not pertain to the trial of civil

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    traffic offenses, I have concluded that Rhode Islands statutory

    exclusionary rule is applicable to refusal trials. I shall therefore

    recommend to the Court that the decision rendered by the appeals panel

    in Mr. Rhodes case be AFFIRMED in part and REVERSED in part and

    REMANDED to the Traffic Tribunal for further proceedings.

    I

    Facts and Travel of the Case

    The facts of the incident which led to the charge of refusal to

    submit to a chemical test being lodged against Mr. Rhodes are fully and

    fairly stated in the decision of the appeals panel.

    On October 5, 2013, at about 2:08 a.m., Officer Paul Hughes of the

    Burrillville Police Department was patrolling on South Main Street

    when he decided to stop a 1997 Saturn because it was speeding.1 He

    activated the overhead lights on his marked police cruiser and reversed

    course to follow the Saturn.2 But after he made the U-turn, he turned off

    his overhead lights, in order to see the target vehicle more clearly.3

    While in pursuit, the officer observed the Saturn commit additional

    1 Decision of Appeals Panel, at 1 (citing Trial Transcript, at 6-7).

    According to his radar instrument, the vehicle was travelling at a speed of

    51 miles per hour in a 25-mph zone. Trial Transcript, at 11.

    2 Decision of Appeals Panel, at 2 (citing Trial Transcript, at 12).

    3 Decision of Appeals Panel, at 2 (citing Trial Transcript, at 15).

  • 5

    traffic violations.4 Then, about 30 seconds after he made his U-turn,

    Officer Hughes reactivated his overhead lights.5 This prompted the

    Saturn, which took another right turn without displaying a turn signal,

    to halt.6

    Based on the manner in which the Saturn was operating while he

    was attempting to stop it, Officer Hughes believed himself to be in

    danger.7 He therefore decided to employ a high risk protocol

    pursuant to which he trained his weapon on Mr. Rhodes, ordered him

    out of his vehicle and onto his knees; he also ordered him to lift up his

    shirt.8 As Mr. Rhodes complied with these commands,9 another cruiser

    4 The officer saw the Saturns tires cross over the streets painted lines,

    run a stop sign and take a right turn without signaling. Decision of Appeals

    Panel, at 2 (citing Trial Transcript, at 11, 14). The vehicle had also

    accelerated to a speed far greater than 50 miles per hour. Trial Transcript,

    at 13-14.

    5 Decision of Appeals Panel, at 2 (citing Trial Transcript, at 12, 15).

    6 Decision of Appeals Panel, at 2 (citing Trial Transcript, at 17). Officer

    Hughes testified that the Saturn travelled 300-400 feet after he reengaged

    his overhead lights. Trial Transcript, at 17. But, the officer conceded that

    [o]nce the lights came on, he appropriately pulled over. Id., at 99.

    7 Decision of Appeals Panel, at 2 (citing Trial Transcript, at 18). Later,

    during redirect examination, the officer commented that he was unable to

    see inside the vehicle once it stopped. Trial Transcript, at 101.

    8 Decision of Appeals Panel, at 2 (citing Trial Transcript, at 18-21). The

    officer testified that they employ the high-risk protocol [w]henever we feel

    potentially threatened. Trial Transcript, at 22.

    9 Decision of Appeals Panel, at 3 (citing Trial Transcript, at 20). Indeed,

    the officer described the motorist as being very compliant. Trial

  • 6

    arrived, carrying a Burrillville Police sergeant who took up a position

    with his gun unholstered.10 With this support in place, Officer Hughes

    holstered his weapon, approached Mr. Rhodes, and handcuffed him

    telling the motorist that he was being detained, but was not under

    arrest.11 The officer then patted-down the motorist, but found no

    weapons.12

    It is at this point that the accounts of Officer Hughes and Mr.

    Rhodes diverge.

    According to Officer Hughes, he removed the handcuffs

    immediately after patting down Mr. Rhodes.13 He then began to question

    Mr. Rhodes, first asking him why he was travelling outside the white

    painted line; the motorist responded he was text messaging.14 In

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