The Massachusetts Supreme Judicial Court
and the Massachusetts
Court of Appeals
To be used in
conjunction with the CPS Criminal Procedure Textbook
Police Service, Inc.
and the Law Office
of Patrick Michael Rogers
v. Zirpolo, 37 Mass. App. Ct. 307 (1994)
Appeals Court of Massachusetts, Middlesex.
H. Mann, Jr., Brookline, for defendant.
Daniel O. Tracy, Asst.
Dist. Atty., for Com.
Before WARNER, C.J., and SMITH and IRELAND, JJ.
The defendant was the subject of a
five-count complaint charging him with:
(1) failing to stop for a police officer, (2) operating a motor vehicle
negligently so as to endanger, (3) operating a motor vehicle with defective
equipment, (4) leaving the scene of an accident after causing property damage,
and (5) operating a motor vehicle while under the influence of intoxicating
liquor. Later, another complaint issued
alleging that, on the same date as the previous offenses, the defendant
operated a motor vehicle while under the influence of intoxicating liquor,
308] The defendant exercised his right to a first-instance jury
trial. The matter proceeded to trial on
the various counts, with the exception of the second-offense portion of the
operating under the influence count.
After the Commonwealth rested its case, the defendant
filed motions to dismiss the counts charging him with operating a motor vehicle
negligently and operating under the influence of intoxicating liquor
on the ground that the defendant's arrest was an illegal extraterritorial
arrest. He cited Commonwealth v. Grise, 398 Mass.
247, 249-253, 496 N.E.2d 162 (1986), in support of his argument. The judge denied both motions. The jury convicted the defendant of the
counts charging him with operating a motor vehicle while under the influence of
intoxicating liquor, operating negligently, and leaving the scene after causing
property damage. He was found not guilty
of failing to stop for a police officer.
(FN1) The trial judge
subsequently found the defendant guilty of the second offense portion of
operating under the influence complaint.
The defendant later filed a motion for a new trial based on the same
issues he now raises on appeal. That
motion was also denied.
On appeal, the defendant argues that the judge committed
error in denying his motions to dismiss two of the five counts, his motions for
required findings of not guilty, and his motion for a new trial. He claims that his extraterritorial arrest
was illegal because no offense had been committed in the presence of the
arresting officer and that officer did not have sufficient reason to believe
that an offense had been committed.
We summarize the evidence presented by the
Commonwealth. The doorman at a nightclub
in Framingham refused to allow the
defendant and his three companions to enter the nightclub because in his
opinion they, including the defendant, had already had too much to drink to be
allowed inside. When the doorman saw the
defendant leave and get into the driver's seat of a white Mustang automobile,
he went to a Framingham police officer, one Monson, stationed at the [37
Mass.App.Ct. 309] nightclub and told him that the
defendant was intoxicated and should not be driving a motor vehicle.
Officer Monson went out into the parking lot and saw the
defendant operating the Mustang. He
ordered the defendant to stop as the defendant was backing up. The defendant did not stop. The officer again ordered the defendant to
stop. The defendant proceeded to back up
into a parked car and break the vehicle's tail light. The officer yelled at him, "You hit a
car," and again ordered him to stop.
The defendant did not stop, turned off the vehicle's lights, and pulled
out onto route 9 at a high rate of speed.
Officer Monson, by radio, contacted the Framingham
police station and reported that there had been a "hit and run" and a
"failure to stop" for a police officer. Meanwhile, another Framingham
police officer, one Pomales, was operating a marked
police cruiser near the scene. He
overheard the radio transmission about an accident and of a "possible
drunk driver leaving the [club] lot" in a white Mustang. He saw the vehicle on route 9 in Framingham. The officer did not notice any violations
but, relying on the radio transmission, he activated his overhead lights in Framingham
in order to stop the vehicle. The
Mustang stopped just over the town line in Natick.
After the stop, the officer observed the defendant, who
was driving the vehicle. He noticed
indications of intoxication and conducted several field sobriety tests on the
defendant. Based on observations of the
defendant and his performance of the field sobriety tests, the officer formed
the opinion that the defendant was operating a motor vehicle while under the
influence of liquor.
 The defendant's reliance on Commonwealth v. Grise, supra, is misplaced. In Grise,
the police officer was outside his territorial jurisdiction and not in
"fresh and continued pursuit" within the meaning of G.L. c. 41, § 98A (inserted by St.1967, c. 263) at the time
the officer arrested the defendant for operating a motor vehicle while under
the influence of liquor. Here, the
arrest of the defendant in Natick
by a Framingham police officer was
the result of a "fresh and [37 Mass.App.Ct.
310] continued pursuit" by that officer of the
defendant. For our analysis of
the issues raised by the defendant, we examine those cases that involve fresh
and continued pursuit across city or town lines.
In Commonwealth v. LeBlanc, 407 Mass.
70, 71, 551 N.E.2d 906 (1990), the officer pursued the defendant across town
lines because he observed the defendant commit a nonarrestable
traffic violation, going through a red light.
After stopping the defendant, the officer noticed a strong odor of
alcohol. When the defendant failed two
field sobriety tests, the officer arrested him for operating a motor vehicle
while under the influence of liquor. The
court noted that "[t]he Legislature, through G.L.
c. 41, § 98A ..., permitted extraterritorial 'fresh pursuit' arrests for any arrestable offense, whether it be a felony or misdemeanor,
initially committed in the arresting officer's presence and within his jurisdiction." Id.
at 72, 551 N.E.2d 906. The court ruled that "[t]he officer
must have some reason to believe that the suspect has committed an arrestable offense before he can pursue and arrest an
individual pursuant to § 98A." Id.
at 73, 551 N.E.2d 906.
Because the offense for which the
officer pursued the motorist in LeBlanc was a nonarrestable
offense, the court ruled that the officer did not have any authority to make a warrantless arrest outside his jurisdiction. Id.
at 72-73, 551 N.E.2d 906. In Commonwealth v.
O'Hara, 30 Mass.App.Ct. 608, 609-610, 571
N.E.2d 51 (1991), we held that where a police officer had reason to believe
that the defendant was operating a motor vehicle while under the influence of
intoxicating liquor or operating negligently so as to endanger, both arrestable offenses, the officer was entitled to follow the
vehicle across the boundary of his territorial jurisdiction in "fresh
pursuit" and there to arrest the defendant.
 Here, in the presence of a police officer (Monson) the
defendant had committed at least one arrestable
offense: failing to stop for a police
officer (G.L. c. 90, §§ 21,
& 25). The officer signalled at least that violation by radio to the police
station. A fellow police officer
overheard the communication and on that basis pursued the defendant outside his
territorial jurisdiction. The arresting
officer, as a result of the radio [37 Mass.App.Ct.
311] communication that he heard in Framingham,
had "reason to believe that the suspect ha[d] committed an arrestable offense," Commonwealth v. LeBlanc,
407 Mass. at 73, 551 N.E.2d 906,
before he pursued and arrested the defendant in Natick.
 The fact that the arrestable
offense was not committed in the arresting officer's immediate presence is
immaterial considering that the offense was committed in a brother officer's
presence. Both Framingham
police officers were acting in a joint effort to apprehend the defendant for an
arrestable offense on the night in question. Under the collective knowledge doctrine as it
relates to probable cause to arrest (an issue not before us), "it is
unnecessary for the detaining officer to know all the information pertaining to
the incident.... '[T]he
knowledge of one [police officer] ... [is] the knowledge of all.' " Commonwealth
v. Lanoue, 356 Mass.
337, 340, 251 N.E.2d 894 (1969), quoting from Commonwealth v. McDermott,
347 Mass. 246, 249, 197 N.E.2d
668 (1964). See also Commonwealth v. Gullick, 386 Mass.
278, 283-284, 435 N.E.2d 348 (1982). We
think that the doctrine applies in this matter and that the warrantless
arrest of the defendant outside the territorial jurisdiction was proper.
Order denying motion for new trial affirmed.
(FN1.) He was also found civilly
responsible on the charge of operating a motor vehicle with defective
equipment. This finding was placed on