Com. v. Hurd

• Decision Date: 30 July 1990
• Docket Number: No. 89-P-1287,89-P-1287
• Citation: 29 Mass.App.Ct. 929,557 N.E.2d 72
• Parties: COMMONWEALTH v. Cushing T. HURD.
• Court: Appeals Court of Massachusetts

Page 72

557 N.E.2d 72

29 Mass.App.Ct. 929

COMMONWEALTH v. Cushing T. HURD.

No. 89-P-1287.

Appeals Court of Massachusetts Middlesex.

Argued April 2, 1990.

Decided July 30, 1990.

Bruce W. Edmands, Amy J. Axelrod, Boston, with him, for defendant.

James W. Sahakian, Asst. Dist. Atty., for Com.

Before ARMSTRONG, CUTTER and DREBEN, JJ.

RESCRIPT.

On June 11, 1988, at about 1:00 P.M., the Waltham Police Department received information from an anonymous caller that a man who appeared to be drunk was getting into a blue automobile with New Hampshirelicense plates in front of Watch City Liquors, 475 Winter Street, Waltham. The caller said there were three small children in the automobile.

Two Waltham police officers responded to the call. As they approached 475 Winter Street, they saw a car matching the description given by the caller heading east on Winter Street approaching the entrance to route 128. The officers stopped the automobile which was driven by the defendant and had three children as passengers. After stopping the car, the officers asked the defendant to step outside. They smelled a strong odor of alcohol on his breath. After Miranda warnings were given and field sobriety tests taken, the defendant was arrested for driving under the influence of alcohol. The foregoing facts are taken from the Waltham police report and were stipulated by the parties. The defendant was convicted of driving under the influence of alcohol based upon the evidence obtained as a result of the stop. The only issue raised by the defendant is whether the warrantless stop was justified. If not, the defendant's motion to suppress the evidence obtained in the stop should have been allowed.

The circumstances detailed by the anonymous call--a drunken driver with three small children in a blue car with New Hampshire license plates at a specific address--combined with the observation by police officers approaching that address of a blue vehicle with New Hampshire plates approaching the entrance to route 128, a high speed highway, "presented an emergency situation requiring immediate action for the protection of life and property." Commonwealth v. Marchione, 384 Mass. 8, 11, 422 N.E.2d 1362 (1981). "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978).

In Commonwealth v. McCauley, 11 Mass.App.Ct. 780, 781-783, 419 N.E.2d 1072 (1981), police were informed by an anonymous party that a man, described in considerable detail and wearing a red, white and blue sweater, was in a certain cafe "carrying a firearm which he had dropped on the floor more than once." This court approved a Terry type ¹ inquiry and, 11 Mass.App.Ct. at 783, 419 N.E.2d 1072 quoted from People v. Taggart, 20 N.Y.2d 335, 337-340, 283 N.Y.S.2d 1, 229 N.E.2d 581 (1967), modified, 21 N.Y.2d 729, 287 N.Y.S.2d 695, 234 N.E.2d 714 appeal dismissed, 392 U.S. 667, 88 S.Ct. 2317, 20...