Com. v. O'Hara, 90-P-912

• Decision Date: 26 June 1991
• Docket Number: No. 90-P-912,90-P-912
• Citation: 571 N.E.2d 51,30 Mass.App.Ct. 608
• Parties: COMMONWEALTH v. James E. O'HARA.
• Court: Appeals Court of Massachusetts

Page 51

571 N.E.2d 51

30 Mass.App.Ct. 608

COMMONWEALTH v. James E. O'HARA.

No. 90-P-912.

Appeals Court of Massachusetts Plymouth.

Argued March 27, 1991.

Decided May 17, 1991.

Further Appellate Review

Denied June 26, 1991.

Linda M. Fleming, Asst. Dist. Atty., for the Com.

Kevin J. Reddington, Brockton, for defendant.

Before WARNER, C.J., and SMITH and FINE, JJ.

SMITH, Justice.

This is an interlocutory appeal by the Commonwealth from a District Court judge's allowance of the defendant's motion to suppress. The judge ordered suppression of evidence stemming from the defendant's arrest in Brockton by a West Bridgewater police officer. ¹ The judge based his decision on Commonwealth v. LeBlanc, 407 Mass. 70, 551 N.E.2d 906 (1990). In LeBlanc, the court held that a police officer had no authority under G.L. c. 41, § 98A, to make a warrantless arrest outside his jurisdiction for the offense of operating under the influence of liquor, where the offense (passing through a red light), for which he pursued the defendant across the jurisdictional boundary, was a traffic violation for which the defendant was not subject to arrest.

Here, the judge held a hearing at which the arresting officer testified in regard to the events preceding the defendant's arrest. After the hearing, the judge filed a memorandum of decision which contained, among other things, his findings of fact. We recite the judge's findings of fact in their entirety.

"On April 30, 1987 at 3:15 A.M., Officer Tucker of the West Bridgewater Police was operating a stationary radar unit near the Brockton line. He observed a motor vehicle traveling northerly at speeds varying between 10 and 37 (posted 40) miles per hour. It crossed the center line on a couple of occasions. He did not observe any other vehicle. The officer followed the car because he felt the operator was drunk due to the observation he had made of the operation of the motor vehicle. He followed the motor vehicle some 300 to 400 feet into Brockton. After following the defendant for a distance in excess of one-quarter mile, [the officer noticed] the defendant [make] a slow right-hand turn. The officer thereupon stopped the defendant, made additional observations and arrested the defendant for operating under the influence of alcohol."

The judge concluded that "[t]he officer's feeling that the defendant was drunk when he made his initial observation does not arise to the level of reason to believe that the defendant had committed an arrestable offense." We disagree.

"[T]he power of a police officer at common law to make an arrest without a warrant is limited to the boundaries of the governmental unit by which he was appointed, unless the police officer is acting in fresh and continued pursuit of a suspected felon who has committed an offense in the officer's presence and within his territorial jurisdiction." Commonwealth v. Grise, 398 Mass. 247, 249, 496 N.E.2d 162 (1986). The Legislature, however, through G.L. c. 41, § 98A, broadened the common law rule by permitting "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." Commonwealth v. LeBlanc, supra 407 Mass. at 72, 551 N.E.2d 906. However, "[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" (emphasis added). Id. at 73, 551 N.E.2d 906. Unlike the traffic violation present in Commonwealth v. LeBlanc, su pra, the offense here was...