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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. Morrissey, 422
Supreme Judicial Court of Massachusetts, Worcester.
Argued
Decided
Sandra L. Hautanen,
Assistant District Attorney, for the Commonwealth.
Vincent F. Ricciardi,
Worcester, for defendant.
Scott Harshbarger,
Attorney General, & Elisabeth Medvedow, Assistant
Attorney General, for the Attorney General, amicus curiae, submitted a brief.
Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY,
JJ.
ABRAMS,
Justice.
The defendant,
Dennis M. Morrissey stands charged with operating a motor vehicle while under
the influence of intoxicating liquor and being a disorderly person. On the defendant's motion, the District Court
judge suppressed all evidence obtained as a result of the stop and detention of
the defendant, because the stop was conducted by a police officer acting
outside his territorial jurisdiction.
The
1. Facts.
In the early morning hours of
On the way
back to Sterling, (FN2) McArthur 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 [422
Mass. 3] south bound traffic, then corrected again and, swerving back to the
extreme right, nearly hit the guard rail.
McArthur
reported his observations to Stillings on the police
radio. Stillings
asked McArthur to stop the vehicle.
McArthur did so within the West Boylston town limits.
McArthur
approached the vehicle, which was being operated by the defendant. McArthur asked the defendant to produce an
operator's license, and directed him to get out of the car. At that point, Officer Stillings
arrived and "assumed control of the investigation." Stillings had the
defendant perform certain field sobriety tests, formed the opinion that the
defendant was under the influence of alcohol, and placed him under arrest. (FN3)
Relying on Grise, supra,
the defendant argues that Officer McArthur's stop of the defendant was unlawful
because it occurred outside McArthur's territorial jurisdiction, and that the
evidence of operating a motor vehicle while under the influence of intoxicating
liquor thereby obtained should be suppressed.
See Commonwealth v. LeBlanc,
407 Mass. 70, 75, 551 N.E.2d 906 (1990).
We do not agree. We conclude that
this case is not governed by Grise.
In Grise, two
Ludlow police officers, while traveling through the city of Springfield,
observed a vehicle ignore a red light and weave back and forth between
lanes. "Believing that the
defendant may have been operating under the influence of intoxicating liquor,
[one of the Ludlow officers] put on the overhead blue lights of the police
cruiser and stopped the defendant's car within the Springfield city
limits. Based upon his observations of
the defendant, [the officer] arrested him for operating under the influence of
intoxicating liquor. He placed the
defendant in the Ludlow police cruiser, and called the Springfield police for
assistance. Springfield police officers
transported the defendant to the Springfield police department." Id.
at 248, 496 N.E.2d 162. We concluded in Grise that
the arrest was unlawful because it occurred outside the arresting officer's
jurisdiction, and that evidence which would not have been obtained but for the
arrest should be suppressed. Id. at 253, 496 N.E.2d 162. Here, McArthur stopped the defendant at the
request of [422 Mass. 4] a police officer whose jurisdiction
included the place where the stop occurred.
We think that a critical distinction.
Police
officers (FN4) "may require suitable aid in the execution of their office
in a criminal case, in the preservation of the peace, [or] in the apprehending
or securing of a person for a breach of the peace." G.L. c. 37, § 13
(1994 ed.).
[1]
General Laws c. 268, § 24 (1994 ed.), provides:
"Whoever, being required in the name of the commonwealth by a
sheriff, deputy sheriff, constable, police officer or watchman, neglects or
refuses to assist him in the execution of his office in a criminal case, in the
preservation of the peace or in the apprehension or securing of a person for a
breach of the peace ... shall be punished by a fine of not more than fifty
dollars or by imprisonment for not more than one month." (FN5)
Officer Stillings
thus had statutory authority to request the assistance of Officer McArthur,
and, had he refused, McArthur might have been subject to a criminal penalty. A detention "by the aid or assistant,
[in] such circumstances, would be, to all intents and purposes, as valid as if
the same had been made by the [local police officer's] proper hand;‑‑and
... the aid or assistant would be under the same protection of the law as the
[local police officer] himself." Commonwealth v. Field, 13 Mass. 321, 322,
324 (1816) (holding that the quoted language was a proper jury
instruction). Accord Byrd v. Commonwealth, 158 Va. 897, 902, 164 S.E. 400 (1932)
("When [422 Mass. 5] one is called to assist an officer
he, during the time that duty rests upon him, is justified in doing whatever
the officer himself might lawfully do");
Restatement (Second) of Torts § 139 (1965). (FN6)
[2]
General Laws c. 90, § 21 (1994 ed.), authorizes a police officer to arrest a
person for operating a motor vehicle while under the influence of intoxicating
liquor even if the offense was not committed in the arresting officer's
presence.
Commonwealth v. DiGeronimo, 38 Mass.App.Ct. 714, 722 n. 9, 652 N.E.2d 148 (1995).
Boucher v. Southbridge, 679 F.Supp. 131,
133 (D.Mass.1988). Having received
McArthur's radio report, Officer Stillings had reason
to believe that the crime of operating a motor vehicle while under the
influence of intoxicating liquor was being committed in Stillings's
territorial jurisdiction. Therefore, Stillings was authorized to stop the defendant to make an
investigative inquiry. Commonwealth v. Owens, 414 Mass. 595,
599, 609 N.E.2d 1208 (1993), quoting
Commonwealth v. Moses, 408 Mass. 136, 140, 557 N.E.2d 14 (1990). That authority was transferred to McArthur
through Stillings's request for assistance. See
Commonwealth v. Field, supra. Byrd v.
Commonwealth, supra. Restatement
(Second) of Torts § 139 (1965).
The defendant
argues that Stillings's request of assistance
constituted a "seizure" of McArthur's person, violating McArthur's
rights under the Fourth and Fourteenth Amendments to the Federal Constitution
and art. 14 of the Declaration of Rights of the Massachusetts
Constitution. We do not consider the
defendant's arguments because he lacks standing to assert McArthur's
constitutional rights. See Commonwealth v. Manning, 406 Mass. 425,
428, 548 N.E.2d 1223 (1990) ("we hold that the defendants may not
successfully advance the unlawfulness of
[422 Mass. 6] [a third party's]
arrest as the sole ground for invalidating" the search of the defendants'
apartment which was a "fruit" of that arrest).
In sum,
Officer Stillings had statutory authority to request
the assistance of any private person "in the apprehending or securing of a
person for a breach of the peace." G.L. c. 37, § 13.
Therefore, his request to Officer McArthur gave McArthur the authority
to stop the defendant's automobile. The
order of the District Court judge suppressing evidence taken as a result of the
stop of the defendant's automobile by McArthur is vacated, and this matter is
remanded to the District Court for further proceedings consistent with this
opinion.
So ordered.
(FN1.) Officer Scott McArthur had not been
sworn in as a special officer of the West Boylston police force. See
Commonwealth v. Grise, 398 Mass. 247, 252 n. 6,
496 N.E.2d 162 (1986). West Boylston and
Sterling did not have a mutual aid agreement.
See G.L. c. 40, § 8G (1994 ed.);
Commonwealth v. McCrohan, 34 Mass.App.Ct. 277, 282, 610 N.E.2d 326 (1993). General Laws c. 41, § 99 (1994 ed.), is
inapplicable on the record before us because the request for McArthur's aid was
not made through McArthur's commanding officer.
(FN2.)
The transcript of the hearing on the motion to suppress indicates that McArthur
was wearing a town of Sterling police uniform and was driving a marked police
cruiser.
(FN3.)
The transcript of the hearing on the motion to suppress reveals that there were
two passengers in the vehicle. After Stillings arrived, McArthur stayed with the passengers.
(FN4.)
General Laws c. 37, § 13 (1994 ed.), applies by its terms to sheriffs. It applies to constables by virtue of G.L. c. 41, § 94 (1994 ed.), which provides that constables
"shall have the powers of sheriffs to require aid in the execution of
their duties," and to police officers by virtue of G.L.
c. 41, § 98 (1994 ed.), which provides that "police officers of all cities
and towns shall have all the powers and duties of constables except serving and
executing civil process."
(FN5.)
The Commonwealth's argument from G.L. c. 268, § 24
(1994 ed.), was raised for the first time on appeal. Although we sometimes exercise our discretion
and consider an issue first raised on appeal where "the questions
presented are of some public importance and the result we reach is not changed
by our consideration of them,"
Mullins v. Pine Manor College, 389 Mass. 47, 63, 449 N.E.2d 331 (1983), it
is rare for us to consider an argument for reversal of a lower court which is
first raised on appeal and is dispositive in favor of
the party belatedly raising the issue.
We consider the argument because we do not agree with the legal
conclusion reached by the judge and the possible ramifications of that ruling
on the public interest "in reducing the incidence of drunk driving ...
consistent with the important interest of individuals in being free from
unreasonable intrusion on their personal security." Commonwealth v. McGeoghegan, 389 Mass. 137, 143, 449 N.E.2d 349 (1983).
(FN6.)
The Restatement provides that a private actor is not civilly liable and
"is privileged to rely upon the officer's request and assist him unless
the facts are such that the actor knows ... that the officer is not himself
privileged to make the arrest."
Restatement (Second) of Torts§ 139 comment d (1965). Accord R.M. Perkins
& R.N. Boyce, Criminal Law 1103 (3d ed. 1982) (private person "is not
entitled to delay while he conducts an inquiry into the officer's actual
authority in the particular case, he is protected even if the latter is
actually exceeding his authority so long as the assister does not know or have
reason to know of the lack of authority").
Cf. Jones v. Melvin, 293 Mass.
9, 13, 199 N.E. 392 (1935) (where defendant failed to argue that he was
privileged under G.L. c. 268, § 24, it was "not
necessary to decide ... to what extent, if any, under the statute or at common
law a person complying with such a request may be relieved from the
consequences of his negligent or grossly negligent conduct").