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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Gray, 423
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued
Decided
Bernard A. Kansky,
Robert W. Healy, Asst. Dist. Atty., for
Commonwealth.
Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY,
JJ.
LYNCH, Justice.
The
defendant appeals from his conviction of trafficking in cocaine in violation of
G.L. c. 94C, § 32E (1992 ed.). A panel of the
The
defendant was indicted in February, 1993, on charges [423 Mass. 294] of
trafficking in cocaine, conspiracy to violate the controlled substance law,
failure to stop for a police officer, falsification of a license, and
disguising to obstruct the execution of law.
A Superior
Court judge allowed the defendant's motion to suppress evidence on
On appeal
the defendant argues that: (1) the
single justice's vacating of the lower court order of suppression was
reversible error; (2) the Commonwealth's
interlocutory appeal to the single justice was untimely; (3) the trial judge committed reversible
error by not hearing the defendant's renewed motion to suppress; (4) the allowance of testimony from a police
officer as to town boundaries was in error;
and (5) the defendant was denied a speedy and timely trial.
We
summarize the facts, relying primarily on the findings of the judge who ruled
on the motion to suppress. Detective
Joseph Deignan of the Watertown police department
observed an automobile speeding in Watertown. The detective was in plain
clothes in an unmarked cruiser. Using
"strobe" lights and his horn, he pursued the vehicle and signalled the operator, later found to be the defendant, to
stop. When the defendant failed to stop,
the detective pulled alongside the vehicle and displayed his gold police badge
by holding it in his hand and pressing it against the window. The defendant continued to drive until he was
forced to stop by traffic in Waltham.
In the
course of a "pat down" the officer discovered a bulge in the
defendant's jacket. The defendant's
jacket was later found to contain 53.4 grams of crack cocaine. No citation for speeding was issued pursuant
to G.L. c. 90, § 2 (1994 ed.).
[1][2] 1.
Motion to suppress. A police
officer's power to arrest [423 Mass.
295] without a warrant outside of
the boundary of his governmental unit is limited unless he is in fresh and
continuous pursuit. See Commonwealth v. Claiborne, 423 Mass.
275, 667 N.E.2d 873 (1996); Commonwealth v. Owens, 414 Mass. 595,
599, 609 N.E.2d 1208 (1993), citing
Commonwealth v. Grise, 398 Mass. 247, 249, 496
N.E.2d 162 (1986). G.L.
c. 41, § 98A (1994 ed.). (FN2)
Detective Deignan was within his jurisdiction when he observed the
defendant speeding and signaled him to stop.
Although speeding is a civil infraction (G.L.
c. 90, § 17 [1979 ed.] ) which does not satisfy the requirements of the fresh
pursuit statute, see Commonwealth v.
LeBlanc, 407 Mass. 70, 72, 551 N.E.2d 906 (1990), failure to stop at the
signal of a police officer does. G.L. c. 90, §§ 21, 25 (1994 ed.). General Laws c. 90, § 25, provides that
"[a]ny person who, while operating ... a motor
vehicle ... shall refuse or neglect to stop when signalled
to stop by any police officer who is in uniform or who displays his badge
conspicuously on the outside of his outer coat or garment ... shall be punished
by a fine of one hundred dollars."
The motion
judge ruled that, because the detective was in plain clothes and not displaying
his badge on the outside of his coat or garment, he did not comply with G.L. c. 90, § 25, and therefore the defendant's failure to
stop was not an arrestable offense.
One of the
obvious purposes of G.L. c. 90, § 25, is to ensure
that the motorist is informed that the person demanding that he stop has the
authority to make such a demand. See Commonwealth v. Sullivan, 311 Mass.
177, 178, 40 N.E.2d 261 (1942). See also Commonwealth v. Grise,
supra at 252, 496 N.E.2d 162. By
activating his "strobe" lights and displaying his badge, the
defendant was effectively notified that he was being told to stop by a police
officer.
We have
noted that, "as long as the goals of the statute are not thwarted, flaws
of detail in its observance can be overlooked." Commonwealth v. Babb, 389
Mass. 275, 284, 450 N.E.2d 155 (1983).
See Commonwealth v. Cameron,
416 Mass. 314, 317, [423 Mass. 296] 621 N.E.2d 1173 (1993). "[F]ailure to
comply with [a] statute is not fatal where the purposes of the statute have not
been frustrated." Commonwealth v. Babb, supra at 283, 450
N.E.2d 155. We have also said that
"[w]e will not adopt a literal construction of a statute if the
consequences of such construction are absurd or unreasonable."
Commonwealth v. LeBlanc, supra, quoting Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336, 439
N.E.2d 770 (1982). Literal compliance
with the statute would have required the undercover officer to display the
badge on the outside of his uniform coat where it would not have been as
visible to the defendant. Thus it was in
furtherance of the obvious purpose of the statute for the officer to display
the badge as he did. Although the
officer was not in uniform, the flashing strobe lights on an automobile being
driven by a man displaying a badge gave the defendant sufficient notice that he
was being stopped by a person with authority.
In these circumstances, the defendant's failure to stop gave the
detective the authority to arrest the defendant. Thus, his pursuit of the defendant from
Watertown into Waltham falls within the requirements of G.L.
c. 41, § 98A. As the officer made a
valid arrest, the evidence discovered as the result of a limited pat‑down
search to ensure his safety was properly admitted at trial. See
Commonwealth v. Robbins, 407 Mass. 147, 151, 552 N.E.2d 77 (1990);
Commonwealth v. Almeida, 373 Mass. 266, 271, 366 N.E.2d 756 (1977).
It adds
nothing that the charge of failing to stop for a police officer was
dismissed. There is no requirement that
a defendant subsequently be prosecuted and convicted for the arrestable offense for which they are stopped. G.L. c. 41, §
98A. See generally Commonwealth v. Owens, supra at 600, 609 N.E.2d 1208.
2. Timeliness of the interlocutory appeal. The defendant claims that the Commonwealth's
application for leave to file an interlocutory appeal was not filed within a
"reasonable time" as required by Mass.R.Crim.P.
15(b)(3), 378 Mass. 882 (1979). This
issue was not raised before the single justice and therefore is not properly
before us. Massachusetts Bay Transp.
Auth. v. Local 589, Amalgamated Transit Union, 20 Mass.App.Ct.
418, 424, 480 N.E.2d 1044 (1985).
3. Additional claims. The other claims of error advanced by the
defendant are not supported by reasoned argument or citations. These claims do not rise to the level of
appellate advocacy required under Mass.R.A.P.
16(a)(4), as [423 Mass. 297] amended, 367 Mass. 921 (1975). G.E.B. v. S.R.W., 422 Mass.
158, 170 n. 11, 661 N.E.2d 646 (1996).
Judgment affirmed.
(FN1.) The failure to stop and disguise
charges were dismissed prior to trial.
The defendant was found not guilty of conspiracy to traffic, and the charge
of falsifying a license was placed on file with the consent of the defendant.
(FN2.) General
Laws c. 41, § 98A (1994 ed.), provides in part:
"A police officer of a city or
town who is empowered to make arrests within a city or town may, on fresh and
continued pursuit, exercise such authority in any other city or town for any
offense committed in his presence within his jurisdiction for which he would
have the right to arrest within his jurisdiction without a warrant."