Commonwealth v. Jewett

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SJC-11796
COMMONWEALTH vs. ERIC A. JEWETT.
Essex. March 3, 2015. - June 11, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Arrest. Search and Seizure, Arrest, Exigent circumstances,
Probable cause, Pursuit. Probable Cause. Constitutional
Law, Probable cause. Motor Vehicle, Operating under the
influence.
Complaint received and sworn to in the Newburyport Division
of the District Court Department on February 16, 2010.
A pretrial motion to suppress evidence was heard by Peter
F. Doyle, J.; a motion for reconsideration was heard by him; and
the case was tried before Michael A. Uhlarik, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Todd C. Pomerleau (Chase A. Marshall with him) for the
defendant.
Philip A. Mallard, Assistant District Attorney, for the
Commonwealth.
John M. Collins, for Massachusetts Chiefs of Police
Association, Inc., amicus curiae, submitted a brief.
2
CORDY, J. In this case we consider whether the hot pursuit
of a suspect who has fled to a private home and who an officer
has probable cause to believe has committed a misdemeanor for
which imprisonment is possible, creates a sufficient exigency
such that a warrantless arrest is lawful. We conclude that it
does in the circumstances of this case.
Background. We summarize the facts as found by the motion
judge, and as supplemented by the testimony at the suppression
hearing which he credited, see Commonwealth v. Isaiah I., 448
Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008), reserving
certain details for our analysis of the issues raised on appeal.
On February 14, 2010, at approximately midnight, Officer
Richard Holcroft1 of the Merrimac police department was on a
routine patrol in a marked police cruiser. While traveling west
on East Main Street he observed a male and female walking to a
pickup truck in the parking lot of a bar. There were only a few
vehicles in the lot and no other vehicles near where the truck
was parked. All other businesses in the area were closed.
Shortly thereafter, Holcroft's attention was drawn to a
different vehicle, traveling at a high rate of speed in the
opposite direction on East Main Street. He reversed direction
to pursue this speeding motor vehicle. While passing the bar
1
Officer Richard Holcroft was the only witness to testify
at the motion to suppress hearing, and the motion judge credited
Holcroft's testimony in his memorandum of decision.
3
again, Holcroft observed the first vehicle (the truck) make a
wide left turn onto East Main Street. The truck pulled out in
front of Holcroft's vehicle and, in so doing, crossed the fog
line. The truck then moved back into its travel lane, but
subsequently crossed the fog line again, swerved over the double
yellow lines, and swerved back to the fog line. After observing
these three marked lanes violations, Holcroft began to pursue
the truck, activating his cruiser's full light bar.
The driver of the truck did not stop or pull over, but
began to travel at a markedly slower rate than the forty miles
per hour speed limit. Holcroft then turned on his cruiser's
siren, in addition to its flashing lights. The truck began to
weave within its lane, but the driver neither pulled over nor
attempted to stop. In the middle of this pursuit, Holcroft
observed the truck nearly strike a parked motor vehicle.
Fearing that the driver of the truck posed a danger to the lives
of other motorists on the way, Holcroft continued his pursuit of
the truck with both his lights and siren activated. The driver
subsequently took a wide left turn onto another street, but
still failed to stop.
Holcroft radioed his pursuit of the truck into the police
station and was informed by the police dispatcher that the truck
was registered to the defendant. Holcroft was familiar with the
defendant, as he had given him a ride on a prior occasion when
4
the defendant was highly intoxicated and had previously been
called to the defendant's house, along with multiple other
officers, to respond to an incident. Moreover, Holcroft was
aware that the defendant had been arrested for leaving the scene
of an accident after causing property damage.
The defendant continued traveling along several streets
before reaching Mountain Avenue. After driving erratically and
very slowly (approximately ten to twenty miles per hour) for
over one-half mile, the truck turned into an unmarked driveway
and stopped short of a garage attached to a home at the end of
the driveway. Holcroft stopped part way down the driveway with
both his lights and siren activated, got out of his cruiser, ran
to the driver's side of the truck, and knocked on the window.
At this point, he recognized the driver of the truck as the
defendant, and ordered him out of the vehicle. The defendant
ignored Holcroft's order and refused even to make eye contact.
Holcroft noted that a female passenger was seated in the front
of the vehicle.
The garage door at the end of the driveway then began to
rise. Holcroft ordered the defendant to stop and step out of
the vehicle, but the defendant did not comply, and proceeded to
drive the truck into the garage. Holcroft followed the truck on
foot. The defendant drove his vehicle as far into the garage as
possible, and pressed a button on a remote control inside his
5
truck, causing the garage door to close slowly. In response,
Holcroft wedged a nearby ice pick under the garage door to
prevent it from closing. He then entered the defendant's garage
and approached the driver's side door of the truck. Holcroft
again ordered the defendant out of the vehicle. At this point,
the female passenger got out of the truck and entered the
basement of the home through a doorway connecting the garage to
the house. The defendant, continuing to disobey Holcroft, slid
from the driver's seat to the passenger's seat and began to get
out by the passenger's side door. Holcroft proceeded around the
back of the vehicle with his baton drawn, ordered the defendant
to turn around, and informed him that he was under arrest.
The defendant continued to ignore Holcroft's commands and
instead made a forward motion towards him. Holcroft smelled an
odor of alcohol coming from the defendant, and observed that his
eyes were glassy and bloodshot, his speech was thick and
slurred, and he was very unsteady on his feet. Holcroft
cautioned the defendant that if he did not comply and desist
with his forward movements, Holcroft would spray him with pepper
spray. The defendant continued toward Holcroft. After shoving
the defendant away twice, Holcroft sprayed the defendant once in
the face with pepper spray. The defendant then turned and
stumbled through the doorway into the basement of the home.
6
After a brief struggle at the basement door, the defendant was
able to shut the door, leaving Holcroft behind in his garage.
Holcroft drew his service weapon and followed after the
defendant. The defendant left his house through a back door in
an attempt to flee and subsequently was apprehended in the
backyard when police backup arrived.
Procedural history. On February 16, 2010, a criminal
complaint issued in the Newburyport Division of the District
Court Department, charging the defendant with operating a
vehicle while under the influence of liquor (OUI), third
offense, in violation of G. L. c. 90, § 24 (1) (a) (1);
resisting arrest, in violation of G. L. c. 268, § 32B; reckless
operation of a motor vehicle, in violation of G. L. c. 90, § 24
(2) (a); failure to stop for police, in violation of G. L.
c. 90, § 25; and a marked lanes violation, in violation of G. L.
c. 89, § 4A. Prior to trial, the defendant filed a motion to
suppress, contending that Holcroft's entry into his garage
constituted an unconstitutional search and seizure. After an
evidentiary hearing, the motion judge denied the defendant's
motion based on the existence of probable cause and several
exigent circumstances, including hot pursuit, risk of flight,
and dissipation of evidence.2 The defendant subsequently moved
2
On appeal we do not consider whether the warrantless entry
was permissible to prevent the dissipation of evidence, as the
7
for reconsideration, and the judge amended three specific
findings of fact in an amended decision issued in December,
2010.
A two-day jury trial commenced on March 21, 2011. At the
close of the Commonwealth's case, the defendant moved for a
required finding of not guilty, which was denied as to all
counts except reckless operation of a motor vehicle. The
defendant subsequently moved for a required finding of not
guilty at the close of all the evidence. This motion was denied
and the jury found the defendant guilty on all the remaining
counts.
The following day, after a bench trial, the judge found
that the defendant had been convicted of OUI on two prior
occasions, making the instant charge his third offense and
therefore a felony. The defendant filed a timely notice of
appeal in April, 2011, and we transferred the defendant's appeal
to this court on our own motion.
Discussion. On appeal, the defendant argues that the
motion to suppress evidence was wrongly denied, and that the
evidence was insufficient to prove both that he was under the
influence of liquor when arrested and that he had two prior OUI
convictions. We address each argument in turn.
Commonwealth concedes that the facts here do not present a
sufficient basis for such a showing.
8
1. Suppression motion. When reviewing a motion to
suppress, "we accept the judge's subsidiary findings of fact
absent clear error," but "independently review the judge's
ultimate findings and conclusions of law." Commonwealth v.
Tyree, 455 Mass. 676, 682 (2010), citing Commonwealth v. Colon,
449 Mass. 207, 214 (2007), cert. denied, 552 U.S. 1079 (2007).
"Warrantless entries into the home are prohibited by the
Fourth Amendment to the United States Constitution and art. 14
of the Massachusetts Declaration of Rights absent either
probable cause and exigent circumstances, or consent."
Commonwealth v. Rogers, 444 Mass. 234, 236 (2005). "A variety
of circumstances may give rise to an exigency sufficient to
justify a warrantless search, including law enforcement's need
to . . . engage in 'hot pursuit' of a fleeing suspect."
Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013), citing United
States v. Santana, 427 U.S. 38, 42-43 (1976).3 See Commonwealth
v. Paniaqua, 413 Mass. 796, 797-798 (1992). It is the
Commonwealth's "heavy burden" to establish both the requisite
probable cause and exigent circumstances. See Tyree, 455 Mass.
3
Other exigencies that may justify a warrantless search are
law enforcement's need to provide emergency assistance to an
occupant of a home, see Michigan v. Fisher, 558 U.S. 45, 47
(2009); restrict the risk of a suspect's flight, see
Commonwealth v. Forde, 367 Mass. 798, 807 (1975); and prevent
the imminent destruction of evidence, see Missouri v. McNeely,
133 S. Ct. 1552, 1559 (2013). See Commonwealth v. Skea, 18
Mass. App. Ct. 685, 693 n.12 (1984) (listing warrant requirement
exceptions).
9
at 684. When asserting an exigency exception, the Commonwealth
must show that it was impracticable for the police to obtain a
warrant, "and the standards as to exigency are strict" (citation
omitted). Id.
a. Probable cause. Probable cause to arrest "exists,
where, at the moment of arrest, the facts and circumstances
within the knowledge of the police are enough to warrant a
prudent person in believing that the individual arrested has
committed or was committing an offense." Commonwealth v.
Franco, 419 Mass. 635, 639 (1995), quoting Commonwealth v.
Santaliz, 413 Mass. 238, 241 (1992). It "requires more than
mere suspicion but something less than evidence sufficient to
warrant a conviction." Commonwealth v. Hason, 387 Mass. 169,
174 (1982), quoting Brinegar v. United States, 338 U.S. 160,
175-176 (1949). "In dealing with probable cause . . . we deal
with probabilities. These are not technical; they are the
factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act." Id.,
quoting Brinegar, 338 U.S. at 175. Accordingly, "an objective
test is used to determine whether probable cause exists."
Franco, 419 Mass. at 639, citing Hason, 387 Mass. at 175.
Based on the facts and circumstances known to Holcroft at
the time of the warrantless entry, we conclude that he had
probable cause to lawfully arrest the defendant for at least two
10
offenses, one of which was the jailable misdemeanor of reckless
operation.4 See G. L. c. 90, § 24 (2) (a). Although this crime
does not fall within the ambit of G. L. c. 90, § 21, regarding
arrests in traffic cases, common law permits a police officer to
arrest an individual without a warrant for a misdemeanor if the
individual's actions "(1) [constitute] a breach of the peace,
(2) [are] committed in the presence or view of the officer,
. . . and (3) [are] still continuing at the time of the arrest
or are only interrupted so that the offense and the arrest form
parts of one transaction." Commonwealth v. Howe, 405 Mass. 332,
4
The motion judge found that, at the time of the
warrantless entry, there was probable cause to arrest the
defendant for "failure to stop for a police officer, reckless or
negligent operation of a motor vehicle, and operating a motor
vehicle while under the influence of alcohol." Although
Holcroft arguably had reasonable suspicion to stop the defendant
for an OUI, without having had the opportunity to interact with
him or conduct a threshold inquiry, it is less certain that at
the time of the warrantless entry Holcroft's observations
amounted to probable cause. Compare Commonwealth v. Smigliano,
427 Mass. 490, 491-492 (1998) (officer had reasonable suspicion
to believe defendant was operating vehicle while under influence
where officer observed vehicle swerve and almost hit parked
motor vehicles), with Commonwealth v. O'Hara, 30 Mass. App. Ct.
608, 609-610 (1991) (defendant's erratic driving sufficient to
provide officer with "some reason to believe" defendant was
operating vehicle while under influence, but arrest justified
only after officer made additional observations during stop).
See Commonwealth v. McGrail, 419 Mass. 774, 775-776 (1995),
overruled on another ground by Commonwealth v. Blais, 428 Mass.
294 (1998) (probable cause for OUI where, in addition to seeing
erratic driving, officer observed obvious signs of intoxication
including slurred speech, odor of alcohol on breath, and
bloodshot eyes). In any event, where there was plainly probable
cause to arrest the defendant for reckless operation, we need
not decide this point.
11
334 (1989), quoting Commonwealth v. Gorman, 288 Mass. 294, 296-
297 (1934). "To find a breach of the peace . . . an act must at
least threaten to have some disturbing effect on the public."
Commonwealth v. Baez, 42 Mass. App. Ct. 565, 570 (1997).
Each of these requirements was present in the instant case.
The defendant's erratic operation and near-collision clearly
occurred in the presence of Holcroft and formed part of the same
transaction as the defendant's ultimate arrest. We have little
doubt that Holcroft had the authority to arrest the defendant on
the ground that erratic driving through public streets, which
nearly results in a collision with a parked motor vehicle,
involves a breach of the peace. This is especially so given
that the defendant's refusal to heed the lights and sirens of
law enforcement, resulting in a chase through a residential
area, undoubtedly created the potential for a disturbing effect
on the public. Compare Commonwealth v. Cavanaugh, 366 Mass.
277, 280-281 (1974) (chase through city streets involved breach
of peace), with Baez, 42 Mass. App. Ct. at 566-570 (1997) (civil
motor vehicle infraction of defective headlight did not
constitute breach of peace).
In order to establish guilt under the reckless operation
statute, "the Commonwealth must prove that the defendant
12
operated a motor vehicle negligently (or recklessly)5 so as to
endanger the lives or safety of the public 'upon any way or in
any place to which the public has a right of access.'"
Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 34 (2007),
quoting G. L. c. 90, § 24 (2) (a). "The statute only requires
proof that the defendant's conduct might have endangered the
safety of the public, not that it in fact did." Id. at 35. See
Commonwealth v. Constantino, 443 Mass. 521, 526-527 (2005)
("person may operate a vehicle in such a way that would endanger
the public although no other person is on the street").
Moreover, "it is not the duration of negligent operation or the
proximity of the public but 'the operation of the vehicle itself
that is the crime.'" Ferreira, supra at 35, quoting
Constantino, supra at 526.
Here, there was an ample basis for a probable cause
determination of negligent operation. Though the defendant was
not speeding,6 he crossed over the fog line three times and the
double yellow lines once, made wide turns, weaved within his
5
In Commonwealth v. Jones, 382 Mass. 387, 392 (1981), we
recognized "that by custom and usage the element of
'recklessness' has been of little or no significance in the
application of the operating to endanger statute" and,
therefore, "the statutory word 'recklessly' seems to be
surplusage."
6
See Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 35
(2007) ("lack of evidence of continuing excessive speed . . . is
only one factor to be considered when determining whether the
lives of the public could have been endangered").
13
lane, refused to heed Holcroft's persistent demand to pull over,
and nearly hit a parked automobile while deliberately attempting
to evade law enforcement. These facts demonstrate in several
ways how the defendant's behavior might have endangered the
lives of the public, thereby establishing probable cause for a
negligent or reckless operation charge. See, e.g., Commonwealth
v. Johnson, 413 Mass. 598, 601 (1992) (probable cause for
operating to endanger where speeding vehicle attempted to evade
police and almost hit unmarked vehicle); Ferreira, 70 Mass. App.
Ct. at 33-36 (operating to endanger where, despite no
pedestrians nearby, defendant accelerated in manner that caused
tires to spin, car to "fishtail," and screeching noise);
Commonwealth v. Labelle, 67 Mass. App. Ct. 698, 700-701 (2006)
(operating to endanger where defendant sped through yellow light
at intersection during busy time of day); Commonwealth v. Daley,
66 Mass. App. Ct. 254, 255-256 (2006) (operating to endanger
where defendant erratically crossed lanes, straddled breakdown
lane, and used wipers on clear night).
b. Exigent circumstances. As noted above, hot pursuit of
a fleeing suspect is a well-recognized exception to the warrant
requirement. See Santana, 427 U.S. at 41-43 (warrantless entry
permissible under doctrine of hot pursuit where defendant fled
inside home to avoid arrest for heroin possession with intent to
distribute); Kentucky v. King, 131 S. Ct. 1849, 1856 (2011).
14
This exception effectuates the principle that "a suspect may not
defeat an arrest which has been set in motion in a public place
. . . by the expedient of escaping to a private place."
Santana, 427 U.S. at 43. Hot pursuit does not require a high
speed race or a trail of police cruisers in fast pursuit of a
suspect. See id. ("it need not be an extended hue and cry in
and about [the] public streets" [quotations omitted]). Rather,
it merely means "some sort of a chase." Id.
Although it is well settled that a State may develop its
own law of search and seizure so long as it does not run afoul
of the prohibitions of the Fourth Amendment, see Commonwealth v.
Matthews, 355 Mass. 378, 380-381 (1969), "[F]ederal and [S]tate
courts nationwide are sharply divided on the question whether an
officer with probable cause to arrest a suspect for a
misdemeanor may enter a home without a warrant while in hot
pursuit of that suspect." Stanton v. Sims, 134 S. Ct. 3, 5
(2013). The defendant argues that the hot pursuit exception
does not apply to "minor crimes," and because the crimes he was
suspected of committing at the time of the warrantless entry
were not felonies, he contends that Holcroft's entry into his
garage was not permissible. We find this argument unpersuasive.
The hot pursuit exception has never explicitly been limited
to felonies under either the Fourth Amendment or art. 14. See
Stanton, 134 S. Ct. at 6 ("though Santana [427 U.S.] involved a
15
felony suspect," Supreme Court "did not expressly limit [the]
holding based on that fact"). The defendant grounds much of his
argument in the subsequent United States Supreme Court case of
Welsh v. Wisconsin, 466 U.S. 740, 746 n.6, 754 (1984) (defendant
arrested for OUI but no incarceration possible for first OUI
offense under Wisconsin law ), which explained that an "extremely
minor" offense cannot give rise to a constitutional exigency for
a warrantless entry. Welsh is readily distinguishable from the
instant case for at least two reasons. First, the Supreme Court
explicitly noted that the doctrine of hot pursuit did not apply
as "there was no immediate or continuous pursuit of the
petitioner from the scene of a crime." Id. at 753. See
Commonwealth v. DiGeronimo, 38 Mass. App. Ct. 714 (1995) (hot
pursuit not implicated). Second, although undoubtedly "more
than a minor crime must be involved to justify the warrantless
intrusion into a private residence," Commonwealth v. Kirschner,
67 Mass. App. Ct. 836, 842-843 (2006), Welsh did not conclude
that all misdemeanors are minor offenses, but rather only that
nonjailable offenses are considered such. See Welsh, 466 U.S.
at 754.
Therefore, Welsh is not inconsistent with Santana.7 Taken
together, these cases stand for the proposition that police may
7
An errant string cite in Welsh v. Wisconsin, 466 U.S. 740,
750 (1984) incorrectly characterized the holding of United
16
not make a hot pursuit warrantless entry into a residence of a
person who is suspected of committing only a minor offense.
Felonies, such as the one committed in Santana, 427 U.S. at 41-
43, are not minor offenses, but nonjailable misdemeanors, such
as the one at issue in Welsh, are properly considered to be
minor. See Welsh, 466 U.S. at 754. See also Kirschner, 67
Mass. App. Ct. at 842-843 (hot pursuit not implicated and
warrantless entry impermissible where crime was possession of
fireworks punishable only by fine); Commonwealth v. Kiser, 48
Mass. App. Ct. 647, 649-651 (2000) (same, for nonjailable
"extremely minor" offense of playing loud music).
Here, however, the defendant was not suspected of
committing a minor offense, but one which was punishable by
imprisonment of up to two years. The defendant incorrectly
cites Welsh and Kirschner for the proposition that every
misdemeanor necessarily falls into the category of "minor
offense," and therefore may never form the basis of a hot
pursuit exigency. Neither case so held. The prohibition in
Welsh of warrantless entry for a minor offense did not embrace
all misdemeanors. See Welsh, 466 U.S. at 761 (White, J.,
dissenting) (noting majority did not draw "a bright-line
distinction between felonies and other crimes"); Gasset v.
States v. Santana, 427 U.S. 38, 42-43 (1976), as permitting "hot
pursuit of a fleeing felon," rather than a fleeing "suspect"
(emphases added).
17
State, 490 So. 2d 97, 98-99 (Fla. Dist. Ct. App. 1986). In
Joyce v. Tewksbury, 112 F.3d 19, 22 (1st Cir. 1997), the United
States Court of Appeals for the First Circuit emphasized the
very limited sweep of Welsh in stating that "the fact that
Massachusetts classifies the alleged violation here as a
misdemeanor does not reduce it to a 'minor offense.'" Moreover,
in Stanton, 134 S. Ct. at 6, the Supreme Court clarified that
Welsh did not hold that a "warrantless entry to arrest a
misdemeanant is never justified," but rather that such entries
"should be rare." We conclude that hot pursuit of an individual
suspected of committing a jailable misdemeanor such as in this
case is permissible.
Other States have similarly recognized that jailable
misdemeanors are not minor offenses under Welsh. See, e.g.,
People v. Thompson, 38 Cal. 4th 811, 821, cert. denied, 549 U.S.
980 (2006) (jailable misdemeanor "not an 'extremely minor'
offense within the meaning of Welsh"); Peoples v. Wehmas, 246
P.3d 642, 648 (Colo. 2011) (jailable misdemeanor "sufficiently
grave offense such that warrantless home entry may be valid");
Dyer v. State, 680 So. 2d 612, 613 (Fla. Dist. Ct. App. 1996)
(jailable misdemeanor is "classified as a much more serious
offense than [the one] in Welsh"), and that an officer may make
a warrantless entry to arrest when such crimes are committed in
their presence and they remain in hot pursuit of the suspect.
18
See, e.g., Gasset, 490 So. 2d at 98-99 (warrantless entry
justified where police pursued speeding motorist directly into
garage, as offense was punishable by imprisonment and
enforcement of serious traffic violations "is not a game where
law enforcement officers are 'it' and one is 'safe' if one
reaches 'home' before being tagged"); State v. Keenan, 325 P.3d
1192, 1200, 1202 (Kan. Ct. App. 2014) (officer in hot pursuit of
person suspected of jailable misdemeanor may make warrantless
entry into suspect's home); State v. Paul, 548 N.W.2d 260, 264-
268 (Minn. 1996) (same).
Establishing a bright-line rule prohibiting the warrantless
entry of a home when the underlying offense is of lesser
magnitude than a felony would send an unacceptable message to
the defendant who "drinks and drives that a hot pursuit or an
arrest set in motion can be thwarted by beating police to one's
door." Paul, 548 N.W.2d at 268. We decline to adopt such a
rule, which runs directly counter to sound public policy. "Law
enforcement is not a child's game of prisoners base, or a
contest, with apprehension and conviction depending upon whether
the officer or defendant is the fleetest of foot." State v.
Ricci, 144 N.H. 241, 245 (1999), quoting State v. Blake, 468
N.E.2d 548, 553 (Ind. Ct. App. 1984). Moreover, such a
categorical distinction would arbitrarily permit perpetrators of
serious misdemeanors "to avoid punishment merely because of how
19
the legislature had labelled an infraction." Paul, 548 N.W.2d
at 267. Rather, limiting the hot pursuit exception to felonies
and jailable misdemeanors appropriately balances the
constitutional protections of both the Fourth Amendment and
art. 14 with society's interest in apprehending individuals
suspected of serious crimes.
Accordingly, Holcroft's actions in entering the defendant's
garage to effectuate the arrest were lawful. At the time of the
warrantless entry he was clearly in hot pursuit of the defendant
and the defendant was aware of this. Although Holcroft
attempted to effectuate a threshold inquiry and set an arrest in
motion for a jailable misdemeanor in a public setting multiple
times, the defendant did not comply with his demands and fled to
his home in an attempt to frustrate the arrest.8
8
The defendant also attempts to argue that hot pursuit is
not an exigency unto itself where the underlying crime is not
felonious, but rather additional factors, such as the crime
being violent or the suspect being armed, must be satisfied in
order to justify a warrantless entry. We disagree with this
contention. The Supreme Court in Santana "did not refer to hot
pursuit as only one factor among others." People v. Wear, 371
Ill. App. 3d 517, 537 (2007), aff'd, 229 Ill. 2d 545 (2008).
Rather, "[m]ost courts appear to take Santana's holding at face
value, treating hot pursuit as an exception unto itself rather
than as just another factor." Id. See, e.g., People v. Lloyd,
216 Cal. App. 3d 1425, 1429 (1989), cert. denied, 497 U.S. 1026
(1990) ("officer's 'hot pursuit' into the house to prevent the
suspect from frustrating the arrest which had been set in motion
in a public place constitutes a proper exception to the warrant
requirement"); State v. Blake, 468 N.E.2d 548, 553 (Ind. Ct.
App. 1984) ("immediate and continuous pursuit from the scene of
the crime formed the exigent circumstance"); State v. Bell, 28
20
2. Sufficiency of the evidence. The defendant contends
that the evidence was insufficient to establish both the
underlying OUI charge as well as his two prior convictions.
When reviewing a claim as to the sufficiency of the evidence we
consider "whether the evidence, in its light most favorable to
the Commonwealth, notwithstanding the contrary evidence
presented by the defendant, is sufficient . . . to permit the
jury to infer the existence of the essential elements of the
crime charged" (citation omitted). Commonwealth v. Latimore,
378 Mass. 671, 676-677 (1979). "Additionally, the evidence and
the inferences permitted to be drawn therefrom must be of
sufficient force to bring minds of ordinary intelligence and
sagacity to the persuasion of (guilt) beyond a reasonable doubt"
(quotation and citation omitted). Id. at 677.
a. Underlying OUI. In order to be convicted of an OUI,
the Commonwealth must prove beyond a reasonable doubt that the
defendant (1) operated a motor vehicle, (2) on a public way, (3)
while under the influence of intoxicating liquor. G. L. c. 90,
So. 3d 502, 508-510 (La. Ct. App. 2009) (recognizing exigent
circumstances inherent in hot pursuit); Winter v. State, 902
S.W.2d 571, 573 (Tex. Ct. App. 1995) ("Court has found that
exigent circumstances exist when the police are in 'hot pursuit'
of a suspect"). Essentially, hot pursuit, in and of itself, is
sufficient to justify a warrantless entry. Santana, 427 U.S. at
42-43. See Commonwealth v. Molina, 439 Mass. 206, 210-211
(2003) (intimating that no warrant needed if "officers were in
hot pursuit of a fleeing suspect in the immediate aftermath of a
crime" without mention of additional exigencies).
21
§ 24 (1) (a) (1). The defendant and the Commonwealth stipulated
that the defendant was operating a motor vehicle and that he was
operating it on a public way. To establish that the defendant
was under the influence, "[t]he Commonwealth need not prove that
the defendant actually drove in an unsafe or erratic manner, but
it must prove a diminished capacity to operate safely" (emphasis
omitted). Commonwealth v. Connolly, 394 Mass. 169, 173 (1985).
Here, the defendant bore many of the classic indicia of
impairment. He was seen departing from a bar late in the
evening, and, once in his vehicle, he drove erratically, weaved
and crossed lane markings, made overly wide turns, nearly struck
a parked vehicle, and refused to comply with police demands to
stop. See Commonwealth v. Sauer, 50 Mass. App. Ct. 299, 303
(2000) (defendant's visit to bar and erratic driving evidence to
support OUI conviction). Additionally, given that Holcroft's
warrantless entry was lawful, his observations of the defendant
once inside the garage are admissible and the Commonwealth
appropriately relied on them at trial. Holcroft testified that
the defendant was unsteady on his feet, had bloodshot and glassy
eyes, smelled of alcohol, and slurred his words. See
Commonwealth v. Bryer, 398 Mass. 9, 10-11 (1986) (unsteadiness
and odor of alcohol are factors that support inference of
diminished capacity to operate safely due to intoxication);
Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011)
22
(poor balance and glassy, bloodshot eyes are evidence of
intoxication); Sauer, supra (unsteadiness is evidence of
intoxication); Commonwealth v. Shabo, 47 Mass. App. Ct. 923, 924
(1999) (smell of alcohol and slurred speech support finding of
intoxication).
Additionally, after the defendant fled his home he
attempted to hide behind a small tree and fought with
apprehending officers (and then fell asleep and snored during
booking). See Commonwealth v. Sudderth, 37 Mass. App. Ct. 317,
318, 321 (1994) (belligerence is evidence of intoxication).
This evidence was sufficient to withstand a motion for a
required finding of not guilty and adequately supports a
determination that the defendant was under the influence of
alcohol at the time he operated his vehicle.
b. Third offense. The defendant contends that the two
docket sheets introduced in evidence were insufficient to prove
beyond a reasonable doubt that the defendant was convicted of
two prior OUI offenses. Thus, the defendant claims that there
was insufficient evidence to sustain his conviction of a third
OUI offense. For the reasons stated below, we disagree.
The sufficiency of docket sheets as evidence of prior
convictions is well settled in the Commonwealth, see, e.g.,
G. L. c. 90, § 24 (4); Commonwealth v. Dussault, 71 Mass. App.
Ct. 542, 546 (2008) (certified copies of original court papers
23
prima facie evidence that defendant previously convicted).
Although docket sheets that simply identify a name are not
sufficient to prove that past convictions are those of a
defendant, see Commonwealth v. Koney, 421 Mass. 295, 302 (1995),
documents that "include more identifying information than merely
the offender's name" (citation omitted) can be sufficient to
satisfy the Commonwealth's burden. Commonwealth v. Gonsalves,
74 Mass. App. Ct. 910, 912 (2009). See, e.g., Commonwealth v.
Bowden, 447 Mass. 593, 602 (2006); Dussault, supra at 547
(records matching defendant's full name, date of birth, town of
residence, and two addresses associated with defendant's name,
coupled with judicial notice of unusual surname, sufficient).
The Commonwealth advances an argument only for the
sufficiency of the docket sheet documenting the second
conviction, as that is all that is necessary to establish that
the present conviction was the defendant's third.9 See Bowden,
447 Mass. at 599 ("judgment of conviction for a third offense
may appropriately be relied on to establish culpability for the
first two offenses."). The defendant claims that the second
docket sheet only reflects his name, date of birth, and an
address that is no longer his place of residence, and, relying
9
The defendant points out that the person named on the
criminal docket for the second offense received a first offense
disposition. However, the docket shows the defendant was
charged with OUI, second offense, and the attached order of
probation conditions lists a disposition of "OUI 2."
24
in part on an unpublished opinion of the Appeals Court, argues
that this information is insufficient. We disagree.
The docket sheets for the second offense bore the same
first name, unusual surname, middle initial, and date of birth
as the defendant's driver's license. See Dussault, 71 Mass.
App. Ct. at 547. Although the address listed on the docket was
a different local address than the one appearing on the
defendant's license, the certified copy of the "Order of
Probation Conditions" for this offense was signed the same day
as the conviction and identified the defendant by the address
that appeared on his license (and matched all the other personal
information from the criminal docket). Accordingly, the
complete set of records for the OUI second offense conviction
matched the defendant's full name, address, and date of birth.
See Gonsalves, 74 Mass. App. Ct. at 912; Dussault, supra at 547.
Viewing such evidence in the light most favorable to the
Commonwealth, we are persuaded that it provides a satisfactory
connection between the defendant and the individual who was
convicted of OUI, second offense, and is therefore sufficient to
uphold the defendant's conviction of OUI, third offense.
Judgments affirmed.