DocketNumber: No. 99-P-1307
Citation Numbers: 50 Mass. App. Ct. 667
Judges: Lenk
Filed Date: 1/5/2001
Status: Precedential
Modified Date: 6/25/2022
Following a jury-waived trial, the defendant appeals from his conviction of operating a vehicle under the influence of intoxicating liquor.
We summarize certain salient facts found by the motion judge. From his vantage point on Route 110 in Amesbury at about 8:30 p.m. on September 27, 1998, Amesbury police Sergeant
Discussion. A police officer’s authority to act is limited to his or her jurisdiction, unless specifically authorized by statute or if performing a valid citizen’s arrest at common law. Commonwealth v. Savage, 430 Mass. 341, 343-346 (1999). It is the Commonwealth’s burden to demonstrate the lawfulness of a warrantless, extraterritorial stop by a police officer. See Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974). The Commonwealth contends on appeal
In Morrissey, a Sterling police officer, driving outside his jurisdiction in West Boylston, observed “a Buick automobile run a stop sign then veer to the right of the road and narrowly miss a telephone pole. The car quickly corrected, crossed the double solid line separating north and south bound traffic, then corrected again and, swerving back to the extreme right, nearly hitting the guard rail.” Id. at 2-3. After hearing a report of the defendant’s wild driving, a West Boylston officer requested the Sterling officer to stop the defendant. Having heard the report of the defendant’s driving, the West Boylston officer “had reason to believe that the crime of operating a motor vehicle while under the influence of intoxicating liquor was being committed in [his] territorial jurisdiction” (emphasis added). Id. at 5. The officer’s reasonable belief that the defendant was committing a crime placed the circumstances within the purview of G. L. c. 37, § 13, and the extraterritorial stop was accordingly lawful. Id. at 4, quoting from Commonwealth v. Field, 13 Mass. 321, 322, 324 (1816). See Byrd v. Commonwealth, 158 Va. 897, 902 (1932); Restatement (Second) of Torts § 139 (1965).
There is, however, a critical distinction between the instant circumstances presented and those in Morrissey. Here, the Salisbury officer who heard the Amesbury officer’s report of the defendant’s speeding and passing would find no basis in that report on which to form a belief that the defendant was committing a crime. Indeed, both the Salisbury and Amesbury officers testified that they believed only that the defendant was committing the civil traffic infractions of speeding and improper passing. Because the Salisbury police did not seek aid in a criminal case, the extraterritorial stop is not authorized in this respect by G. L. c. 37, § 13.
The Commonwealth contends, however, that, while not
We turn then to the possibility that, even apart from any necessary connection between driving under the influence and a breach of the peace, the defendant’s conduct, viz., speeding and improper passing, might itself constitute a breach of the peace. Commonwealth v. Orlando, 371 Mass. 732 (1977), suggests the relevant criteria. First, the conduct must be of a character that most people would find to be unreasonably disruptive. Id. at 734-735. Second, the conduct must in fact have infringed on someone’s right to be undisturbed. Whether conduct disturbs the peace will depend on when and where it occurs, for what may be perfectly appropriate conduct at one time and place may at another be a breach of the peace. Id. at 735. (“[L]ike a pig in the parlor instead of the barnyard,” citing Euclid v. Ambler
We think that Commonwealth v. LeBlanc, 407 Mass. 70 (1990), rather than Commonwealth v. Morrissey, 422 Mass. 1 (1996), controls the result here. In LeBlanc, a Natick police officer while in Natick observed a vehicle pass through a red light at a high rate of speed. The officer followed the driver into Framingham where he stopped him. After the officer detected a strong odor of alcohol, he asked the driver to perform field sobriety tests, and then arrested him. Because the officer was not within his jurisdiction at the time of the arrest, and there was no statutory or common law exception to authorize the stop, it was held to be illegal. In so holding, the court rejected the Commonwealth’s suggestion that expansion of the officer’s territorial authority to make such stops was implied under G. L. c. 41, § 95 (extraterritorial authority to execute arrest warrants); G. L. c. 41, § 98 (extraterritorial authority to carry weapons); or G. L. c. 41, § 98A (extraterritorial fresh pursuit for arrestable offenses). The court observed that
“Rather than implying that the Legislature intended to give the police the authority to make extraterritorial stops, these statutes demonstrate that the Legislature knows how to expand the extraterritorial authority of the police when it thinks it fit to do so. The Legislature has chosen not to provide the police with extraterritorial authority to make stops for traffic violations. If it wishes to modify that judgment, it may do so.”
Id. at 75. In the present case, as in LeBlanc, the Commonwealth points to no statutory or common law authority that might legitimate the challenged warrantless extraterritorial stop. The motion to suppress should have been allowed.
The judgment is vacated, the finding is set aside, and an order shall enter allowing the motion to suppress.
So ordered.
He was found not responsible for cited speeding and passing violations.
He also asserts error in the trial judge’s denial of his motion in limine to exclude evidence as a result of that stop. We need not reach this issue in view of our disposition of the suppression motion.
The Commonwealth also asserted at the suppression hearing that the stop was authorized by virtue of a mutual aid agreement between Salisbury and Amesbury under G. L. c. 40, § 8G. See Commonwealth v. McCrohan, 34 Mass. App. Ct. 277, 282-283 & n.5 (1993). The motion judge found that such an agreement was in effect and, on that basis, concluded that the Amesbury officer was authorized to make the extraterritorial stop of the defendant. While the record may support the judge’s finding that an agreement of this nature was in effect, it is silent as to the relevant terms of that agreement, particularly