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CPS Commonwealth
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Commonwealth v. Magazu, 48 Mass.App.Ct.
466 (1987)
Appeals Court of Massachusetts,
No. 98‑P‑2284.
Argued
Decided
Jeffrey S. Beckerman, Assistant District Attorney,
for the Commonwealth.
Timothy H. White,
Present: PERRETTA, GILLERMAN, & GELINAS, JJ.
PERRETTA, J.
This is an
appeal by the Commonwealth from a District Court judge's dismissal of a
complaint charging the defendant with operating a motor vehicle while under the
influence of intoxicating liquor. The
defendant claimed that the officer was beyond his jurisdiction and, therefore,
lacked authority to arrest him. (FN1) We reverse the judgment.
1. The facts. Only one witness, Whitman police officer
Dean Leavitt (Leavitt), testified at the evidentiary hearing held on the motion
to dismiss. Leavitt related the
following facts. On
Leavitt
related that as he turned his cruiser and was about to leave the gas station
parking area, he noticed a car proceeding along Route 14 toward its
intersection with Franklin Street in East Bridgewater. The car was traveling at a high rate of speed
for that area. He heard the screech of
tires and saw the car proceed into the intersection, stopping one car length
beyond the stop sign. Leavitt continued
to watch the car as it remained stationary in the intersection for about three
to five minutes. During that time, the
driver, the defendant, continuously looked at Leavitt's cruiser. When the defendant again put the car in
motion, he made a sharp turn onto Franklin Street in the direction of Whitman. After watching the defendant drive in the
oncoming lane for about eighty feet before returning to the proper side of the
road, Leavitt pulled out of the parking area and followed the defendant as he
progressed into Whitman. As Leavitt did
so, he remained about twenty yards behind the defendant and did not activate
his siren.
While
following the defendant, Leavitt saw that he crossed over the center line
several times and the right shoulder line once or twice. The defendant also alternated the speed of
the car from above the posted speed limit to significantly below it. While driving along Franklin Street in
Whitman, the defendant rapidly decelerated the car and, without signaling, made
a sharp right turn into the driveway of a private residence. Although the portion of Franklin Street
abutting that driveway is a Whitman public way, the driveway itself and private
residence are situated in Hanson. (FN2)
2. Discussion. It is the Commonwealth's argument that
Leavitt was authorized under G.L. c. 41, § 98A, as
inserted by [48 Mass.App.Ct.
468] St.1967, c. 263, to arrest the
defendant in Hanson. As relevant, that
statute provides: "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 offen[s]e committed in his presence
within his jurisdiction for which he would have the right to arrest within his
jurisdiction without a warrant."
The defendant counters that § 98A is inapplicable for two reasons: Leavitt's initial observations of his erratic
driving were made in East Bridgewater, and Leavitt followed rather than pursued
him.
[1]
Leavitt's testimony shows that his observations of the defendant in East
Bridgewater gave him reason to believe that the defendant was driving under the
influence of intoxicating liquor. See Commonwealth v. Connolly, 394 Mass.
169, 172, 474 N.E.2d 1106 (1985); Commonwealth v. Riley, 48 Mass.App.Ct. 463, 722 N.E.2d 40 (2000). It follows, therefore, that when the
defendant continued to drive and, moments later, proceeded into Whitman,
Leavitt had reason to believe the defendant was committing an offense in his
presence and within his jurisdiction.
Contrast Commonwealth v. Grise, 398 Mass. 247, 248, 496 N.E.2d 162 (1986),
where, as noted in Commonwealth v.
Savage, 430 Mass. 341, 344‑345, 719 N.E.2d 473 (1999), the officers'
observations, stop, and arrest all occurred outside the territorial limits of
their authority.
[2]
Although Leavitt, while in Whitman and closely following the defendant, did not
activate his siren or lights and attempt to overtake and stop him, we rely upon Commonwealth v. Owens, 414 Mass. 595,
609 N.E.2d 1208 (1993), and conclude that he was in "pursuit," within
the meaning of § 98A, at the time of the defendant's arrest in Hanson. In
Owens, a Quincy police officer performed a routine stolen motor vehicle
check on a car parked within his jurisdiction.
His request for information revealed that although the car was not
stolen, its owner was being sought on an outstanding arrest warrant for serious
felony charges. When a man got into the
car and began to drive off, the officer followed, but did not attempt to
overtake him. The officer "radioed
a request to have [the car] stopped at a specific traffic light. Prior to reaching the light, however, the
driver of the [car] stopped at a gasoline station" located just outside
the officer's territorial limitations.
The officer followed the car into the station, approached the driver,
and made an investigative inquiry which led to the driver's arrest. Id.
at 597‑598, 609 N.E.2d 1208. The
threshold issue before the court was whether the officer acted outside his [48 Mass.App.Ct.
469] jurisdiction when arresting the
defendant without a warrant. The court concluded that because the
officer was within his jurisdiction when he received information regarding the
warrant, he began his "pursuit" with reason to believe that the
defendant had committed an arrestable offense. Id.
at 599‑600, 609 N.E.2d 1208. In
the present case, Leavitt "pursued" the defendant in the same manner
as the officer in Owens. The distinction between the two cases is
that in Owens, the officer's reason
for following the defendant was based upon information requested by him,
whereas in the instant case, Leavitt's reasons for following the defendant into
Hanson were based upon his personal observations.
Leavitt's
reasons for following the defendant were based upon his observations of an arrestable offense, the commission of which, as observed by
Leavitt, continued into his territorial authority. In our view, Leavitt's observations must be
deemed just as reliable as the information held sufficient in Owens.
Further, although the defendant argues that § 98A requires
"pursuit" more frenetic than that which here occurred, Owens indicates otherwise.
Accordingly,
the judgment of dismissal is reversed, and the matter is remanded to the
District Court for further proceedings on the complaint.
So ordered.
(FN1.) We do not consider whether the
defendant's claim was one more appropriately raised on a motion to
suppress. As acknowledged by the
Commonwealth, it would have been required in any event to dismiss the complaint
for lack of evidence had a suppression motion been brought and allowed on the
same basis. See Commonwealth v. Grise, 398 Mass. 247,
253, 496 N.E.2d 162 (1986).
(FN2.) After
the appeal was entered, the defendant filed a motion to correct and expand the
record to include a photograph and maps which he claims refute Leavitt's
testimony. On February 24, 1999, a
single justice denied that motion "without prejudice to renewal in the
trial court." The defendant did
not, however, renew his motion in the proper forum. We, therefore, do not consider those
materials. Were we to consider the maps
and photograph, we would conclude that, contrary to the defendant's contention,
they fall short of establishing his claim that he never drove within the
territorial limits of Whitman prior to his arrest.