At the conclusion of a bifurcated trial in Superior Court, the defendant was convicted of operating a motor vehicle under the influence of intoxicating liquor (OUI), seventh offense, G. L. c. 90, § 24(l)(a)(l); operating to endanger, G. L. c. 90, § 24(2)(a); and operating after revocation of his license, G. L. c. 90, § 23.
Facts. 1. Suppression findings. The evidence received at the two hearings upon the motion to suppress supported the following findings by the judge.
Zaccardi then reversed direction, turned on his patrol car’s light bar and siren, and began pursuit of the defendant’s car. Simultaneously he radioed his Norton police dispatcher and directed him to notify the Attleboro police dispatcher to send
Zaccardi walked to the defendant’s car, requested and received his keys and driver’s license, and instructed him and a passenger to place their hands on the dashboard. At that time, he could hear the siren of an approaching Attleboro cruiser. It arrived within approximately twenty to thirty seconds of Zaccardi’s receipt of the keys and license. Two Attleboro officers then conducted an investigation of the scene and collected evidence resulting in the eventual charges. Zaccardi briefed them about his observations and left within a few minutes. An Attleboro officer testified that their cruiser had reached the location of the stop in “[l]ess than one minute” after receipt of dispatch. Zaccardi testified, and the judge specifically found, that the purpose of his pursuit and detention of the defendant was the prevention of a fatal accident.
2. Suppression rulings. The defendant argued that Zaccardi, as a Norton police officer, lacked jurisdictional authority to stop the defendant in Attleboro; and that the substantial incriminating evidence resulting from the stop should be inadmissible because neither statutory nor common-law sources permitted an extraterritorial stop in these circumstances. In a detailed memorandum of decision, the judge agreed that neither statutory authorizations nor common-law doctrine appeared to validate the stop. She concluded, however, that the concept of inevitable discovery by lawful police action applied to the circumstances and provided a valid basis for admission of evidence yielded by the stop. She found that Officer Zaccardi had pursued the defendant in good faith for an urgent purpose of public safety and that his dispatch notices to the Attleboro police had assured their proper interception of the defendant.
3. Request to renew the motion to suppress; the turret tape. Approximately eight months after the judge’s findings and rulings and five weeks before trial, the defendant moved to renew
Analysis. The defendant argues generally that the concept of inevitable discovery should not apply to extraterritorial police stops and specifically that the evidence in this case does not establish the inevitability of his discovery by the Attleboro police. He challenges also the judge’s denial of his request to renew his motion to suppress as an abuse of discretion.
1. Inevitable discovery. a. Standard of review. Most commonly, appeals from suppression decisions present constitutional questions of allegedly unreasonable search or seizure under the standards of the Fourth Amendment to the United States Constitution or art. 14 of the Declaration of Rights of the Massachusetts Constitution. Scores of cases establish the standard of review. The appellate court accepts the motion judge’s subsidiary findings of fact unless they are clearly erroneous. It conducts an independent review of her ultimate findings and conclusions of law. See, e.g., Commonwealth v. Scott, 440 Mass. 642, 646 (2004); Commonwealth v. Colon, 449 Mass. 207, 214, cert. denied, 552 U.S. 1079 (2007). Under this standard, the credibility and weight of testimony remain the province of the motion judge directly observing the witnesses. See, e.g., Commonwealth v. Gentile, 437 Mass. 569, 573 (2002); Commonwealth v. Clark, 65 Mass. App. Ct. 39, 43 (2005), and cases cited.
Our case concerns not the usual constitutional contentions, but rather a statutory and common-law right of an individual to freedom from seizure and search by a police officer outside his lawful jurisdiction. The identity of the interests in freedom and privacy and the evidentiary consequences of suppression or admission of the resulting evidence lead us logically to apply the same standard of review to the defendant’s nonconstitutional argument against the action of the police.
In his original motion to suppress, the defendant invoked the protection of art. 14 of the Declaration of Rights. Under that provision, Massachusetts courts enforce a more restrictive standard of inevitability than does the Fourth Amendment decisional law. See Commonwealth v. O’Connor, supra at 117. The Commonwealth must prove by a reasonable preponderance
In this instance the motion judge made the following specific subsidiary findings on the basis of the credibility of the two police witnesses. The defendant at excessive speed drove into an oncoming lane and forced the Norton police cruiser to drive off the road in order to avoid a head-on collision. The Norton officer began pursuit and simultaneously directed his dispatcher to inform the Attleboro police of the chase and the need for assistance. He followed the defendant’s car along a single, narrow, two-lane road on which the speed limit approximated forty miles per hour and on which oncoming traffic obstructed the defendant’s attempts to accelerate and pass vehicles in his own lane. The officer forced the defendant to pull over after a distance of one-quarter to one-half mile. He took the defendant’s keys and driver’s license. As he did so, he heard the siren of an approaching Attleboro cruiser. It arrived within twenty to thirty seconds of the first sound of the siren. The Norton officer undertook no arrest or investigation, turned the keys and license over to the Attleboro officers, briefed them, and left.
Finally, again as a matter of credibility supported by plausibility, the motion judge accepted the good faith of Officer Zaccardi’s motivation, not to arrest the defendant and gather evidence against him, but rather to remove him from the highway and prevent a fatal accident.
Under the governing standard of review, the motion judge’s subsidiary findings are free of clear error and her ultimate findings and conclusions of law satisfy the requirements of the concept of lawful inevitable discovery imposed by art. 14.
2. Renewal motion. Pursuant to Mass.R.Crim.P. 13(a)(5), as appearing in 442 Mass. 1516 (2004),
Here, neither of the grounds cited by the judge would amount to an abuse of discretion. The defendant submitted his motion to suppress on or about June 18, 2008, or almost six months after his arrest. He did not move for production of the tape until July 21, 2008, almost seven months after arrest. Meanwhile, the judge conducted evidentiary hearings on July 23 and 31, 2008. At neither one did defense counsel propose a continuance until production. The Commonwealth produced the turret tape on August 18, 2008, or within a month after request. The judge delivered her order on the suppression motion on or about October 3, 2008. However, successor defense counsel did not submit the motion to renew until May 27, 2009, more than nine months after production and almost eight months after the judge’s decision and only five weeks before trial. In short, the tape contents were readily discoverable for use in the original motion. The renewal motion was extraordinarily late; the pattern of untimeliness justified denial.
As a matter of caution, we have examined the transcript of the tape (included in the record appendix by agreement of the parties). The defendant maintains that it shows that as much as five minutes may have intervened between Zaccardi’s stop of the defendant and the Attleboro cruiser’s arrival. We cannot agree.
The contents of the tape are brief and somewhat elliptical. They cover a period of twelve minutes and twenty-two seconds, but consist of only one page. The tape appears to begin at the
At the same time, some entries in the tape would strengthen the demonstration of inevitable discovery and apprehension of the defendant by the Attleboro police. At the twenty-second mark of the tape, Officer Zaccardi informs dispatch of the defendant’s license plate number, a vital identification likely passing to the Attleboro police several seconds later. At the twenty-two second mark, Zaccardi informs dispatch of the specific buildings which he is passing as he travels westward along route 123 and farther into Attleboro. Thus Attleboro cruisers would know promptly of the direction, location, and license number of the defendant’s car. Each of those elements would strengthen the practical certainty of his discovery.
In short, the tape contents would not undermine the validity of the judge’s subsidiary and ultimate findings or conclusion of law. Substantial justice did not require allowance of the motion to renew. No abuse of discretion occurred.
Judgments affirmed.
A jury convicted the defendant of OUI and operating to endanger. The defendant waived his right to a jury trial on the subsequent offense portion of the OUI charge and on the charge of operating after suspension for OUI. He stipulated to the previous six OUI convictions and to his awareness of the revocation of his license.
The Commonwealth called two witnesses at the suppression hearings, Norton police Officer Jeffrey Zaccardi and Attleboro police Officer Richard Pierce. The defendant did not call any witnesses.
Zaccardi had made many trips to Sturdy Hospital. He estimated the speed limit on Route 123 to be forty miles per hour.
The Norton and Attleboro police departments did not have interoperable radios and therefore had to communicate through their respective dispatch operators.
General Laws c. 41, § 98A, authorizes police officers to make “extraterritorial ‘fresh pursuit’ arrests for any arrestable offense, whether it be a felony or misdemeanor, initially committed in the arresting officer’s presence and within his jurisdiction.” Commonwealth v. LeBlanc, supra at 72. General Laws c. 37, § 13, permits officers “to request the assistance of any private person ‘in the apprehending or securing of a person for a breach of the peace.’ ” Commonwealth v. Morrissey, 422 Mass. 1, 6 (1996), quoting from G. L. c. 37, § 13. The person receiving such a request gains authority to stop the suspect. Ibid. General Laws c. 40, § 8G, empowers a city or town to enter into an agreement with one or more other cities or towns “to provide mutual aid programs for [their] police departments to increase the capability of such departments to protect the lives, safety, and property of the people in the area designated in the agreement.” In a similar vein, G. L. c. 41, § 99, authorizes municipalities to appoint police officers from neighboring cities or towns as special police officers, and to clothe those officers with police power in the appointing municipality, having “the same immunities and privileges as when acting within their respective cities and towns.”
As the motion judge correctly acknowledged, none of these statutes applies in this case. General Laws c. 41, § 98A, does not apply because the entire
Absent statutory authority, “an officer’s extraterritorial arrest can be valid at common law if it would be lawful as a citizen’s arrest.” Commonwealth v. Savage, supra at 346. “In Massachusetts a private person may lawfully arrest someone who has in fact committed a felony.” Commonwealth v. Harris, 11 Mass. App. Ct. 165, 170 (1981). Operating under the influence, seventh offense, is a felony. See G. L. c. 274, § 1 (“A crime punishable by death or imprisonment in the state prison is a felony. All other crimes are misdemeanors”); G. L. c. 90, § 24(l)(a)(l), as amended through St. 1999, c. 127, § 108 (defendants convicted of operating under the influence four or more times “shall be punished ... by imprisonment in the state prison for not less than two and one-half years nor more than five years”). However, at the time of the incident, Zaccardi did not know of the defendant’s prior convictions and thus he could have suspected the defendant of only a first offense of operating under the influence, a misdemeanor. See G. L. c. 90, § 24(l)(a)(l) (first offense of operating under the influence not punishable by imprisonment in State prison); Commonwealth v. Savage, supra (classification of OUI offense for purposes of a citizen’s arrest depends on arresting citizen’s knowledge of defendant’s prior convictions at the time of arrest); Commonwealth v. Limone, 77 Mass. App. Ct. 903, 904-905, further appellate review granted, 458 Mass. 1102 (2010) (police officer could reasonably suspect defendant of merely misdemeanor OUI where defendant’s six prior OUI convictions became known after his arrest). Therefore, the stop was not valid as a citizen’s arrest.
The judge reasoned that, in the urgent public safety circumstances along Route 123, the community caretaker authority constitutionally justified a stop of the defendant’s car by the Attleboro police. The judge then stated, “Nonetheless, the Commonwealth has not cited, nor has this court found, any case law which permits a police officer to act as a community caretaker outside of his jurisdiction, even in an emergency.”
In Superior Court and on this appeal, the Commonwealth has argued that Massachusetts courts should adopt an exception permitting officers to act without jurisdictional authority if they reasonably believe the lives of others to
Zaccardi explained that he had to return promptly to Norton because his department was “shorthanded” on the Christmas holiday.
Officer Zaccardi testified that, after his near collision, he “was afraid this vehicle was going to kill somebody,” and that he took the defendant’s keys to prevent his return to the road. On appeal, the defendant has not challenged Officer Zaccardi’s motive.
Our holding rests upon the events found by the motion judge, and specifically the causal force of the lawful dispatch communications from Officer Zaccardi to the Attleboro police. We do not reach the Commonwealth’s proposal that we analyze the case upon the hypothetical alternative that Officer Zaccardi could have followed the defendant’s car without use of his lights and siren until the interception by the Attleboro police.
That subsection in relevant part provides: “Upon a showing that substantial justice requires, the judge . . . may permit a pretrial motion which has been heard and denied to be renewed.”