Opinions of

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To be used in conjunction with the CPS Criminal Procedure Textbook

 

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Commonwealth v. Trudel, 42 Mass.App.Ct. 903 (1997)

Appeals Court of Massachusetts.

No. 96‑P‑239.

Jan. 7, 1997.

 

Elspeth B. Cypher, Assistant District Attorney, for Commonwealth.

 

 Bruce E. Thompson, Attleboro, for defendant.

RESCRIPT.

 

       Officer Peter M. Benson of the Seekonk police department, on routine patrol in the north end of Seekonk on the night of January 26, 1995, watched a pickup truck in a parking lot move in a fashion that attracted his notice.  The truck was parked against the Westwind restaurant in Seekonk in a lot that was partially in Seekonk and partially in Attleboro.  After a hearing on a motion to dismiss a complaint‑‑or, alternatively, to suppress evidence‑‑of driving under the influence of alcohol, a judge of the District Court ruled that there was insufficient evidence of conduct by the defendant in Seekonk that would have justified pursuit by a police officer beyond the territorial boundaries of Seekonk.  The judge reasoned that, therefore, the arrest of the defendant by Officer Benson in Attleboro was unlawful.  Accordingly, the judge allowed the motion, without stating whether he was allowing the request to suppress evidence obtained following arrest or the alternate request for dismissal of the complaint (presumably for failure of evidence).  The clerk made a docket entry of dismissal of the complaint.  We reverse.

 

       [1][2] There is agreement by the parties that the judge's findings of fact are clearly erroneous as to what happened in Attleboro.  The judge found that the defendant's operation of his truck on Route 152 in Attleboro, before he was stopped, "was unremarkable and there was an absence of testimony regarding erratic operation."   In fact, Officer Benson had testified:

 

"When it exited [from the parking lot to] the street [at which point the vehicle was in Attleboro] it spun the tires in the sand and then proceeded at an extremely high rate of speed straddling the center line going 152 north, which I believe is Attleboro's South Main Street, but I can't be positive of that."

 

       Upon pursuing the truck from the parking lot, Benson radioed his dispatcher that he was "following what I believed was an O.U.I. vehicle."   Generally, however, a police officer may not make an arrest without a warrantbeyond [42 Mass.App.Ct. 904] the boundaries of the governmental unit he serves unless engaged in fresh pursuit of a suspect concerning an "arrestable offense, whether it be a felony or misdemeanor, initially committed in the arresting officer's presence and within his jurisdiction."  Commonwealth v. LeBlanc, 407 Mass. 70, 72, 551 N.E.2d 906 (1990).  G.L. c. 41, § 98A.

 

       The more subtle question, therefore, is whether what the officer had observed in Seekonk provided him with some reason to think that the defendant was in the process of committing an offense for which he could be arrested.  See Commonwealth v. LeBlanc, supra; Commonwealth v. O'Hara, 30 Mass.App.Ct. 608, 609‑610, 571 N.E.2d 51 (1991).  The officer described his observations of what occurred in Seekonk as follows:

 

       "I saw the vehicle‑‑I saw a person leave the bar, enter [his] vehicle, back up, step on [his] brake heavily about ten feet back, pull forward, pull back, pull forward.  The vehicle did this rough[ly]‑‑approximately six to eight times before it exited the lot."

 

       The words "brake heavily" convey the picture of a lurching vehicle, such as might be in the hands of a driver under the influence of alcohol.  Those movements gave the officer reason to think the defendant was operating with his coordination impaired by drink.  That impression received some reinforcement from the repetitive back and forth movements of the truck, suggestive of poor control, and from the circumstance that the defendant had emerged from a drinking spot.  Suspecting drunk driving, Officer Benson could follow the vehicle under observation once it crossed (about midway through the parking lot) into the neighboring town of Attleboro.  The stop and arrest in Attleboro was lawful, and the evidence obtained at the stop and arrest should have been received.

 

       The judgment of dismissal of the complaint is reversed, and the case may stand for trial.

 

       So ordered.