Commonwealth v. Jewett

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: CORDY, J.
• Citation: Commonwealth v. Jewett, 471 Mass. 624, 31 N.E.3d 1079 (Mass. 2015)
• Decision Date: 11 June 2015
• Docket Number: SJC–11796.
• Parties: COMMONWEALTH v. Eric A. JEWETT.

471 Mass. 624

31 N.E.3d 1079

COMMONWEALTH

v.Eric A. JEWETT.

SJC–11796.

Supreme Judicial Court of Massachusetts, Essex.

Submitted March 3, 2015.

Decided June 11, 2015.

Todd C. Pomerleau (Chase A. Marshall with him), Boston, for the defendant.

Philip A. Mallard, Assistant District Attorney, for the Commonwealth.

John M. Collins, for Massachusetts Chiefs of Police Association, Inc., amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

CORDY, J.

In this case we consider whether the hot pursuit of a suspect who has fled to a private home and who an officer has probable cause to believe has committed a misdemeanor for which imprisonment is possible, creates a sufficient exigency such that a warrantless arrest is lawful. We conclude that it does in the circumstances of this case.

Background. We summarize the facts as found by the motion judge, and as supplemented by the testimony at the suppression hearing which he credited, see Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008), reserving certain details for our analysis of the issues raised on appeal.

On February 14, 2010, at approximately midnight, Officer Richard Holcroft¹ of the Merrimac police department was on a routine patrol in a marked police cruiser. While traveling west on East Main Street he observed a male and female walking to a pickup truck in the parking lot of a bar. There were only a few vehicles in the lot and no other vehicles near where the truck was parked. All other businesses in the area were closed.

Shortly thereafter, Holcroft's attention was drawn to a different vehicle, traveling at a high rate of speed in the opposite direction on East Main Street. He reversed direction to pursue this speeding motor vehicle. While passing the bar again, Holcroft observed the first vehicle (the truck) make a wide left turn onto East Main Street. The truck pulled out in front of Holcroft's vehicle and, in so doing, crossed the fog line. The truck then moved back into its travel lane, but subsequently crossed the fog line again, swerved over the double yellow lines, and swerved back to the fog line. After observing these three marked lanes violations, Holcroft began to pursue the truck, activating his cruiser's full light bar.

The driver of the truck did not stop or pull over, but began to travel at a markedly slower rate than the forty miles per hour speed limit. Holcroft then turned on his cruiser's siren, in addition to its flashing lights. The truck began to weave within its lane, but the driver neither pulled over nor attempted to stop. In the middle

of this pursuit, Holcroft observed the truck nearly strike a parked motor vehicle. Fearing that the driver of the truck posed a danger to the lives of other motorists on the way, Holcroft continued his pursuit of the truck with both his lights and siren activated. The driver subsequently took a wide left turn onto another street, but still failed to stop.

Holcroft radioed his pursuit of the truck into the police station and was informed by the police dispatcher that the truck was registered to the defendant. Holcroft was familiar with the defendant, as he had given him a ride on a prior occasion when the defendant was highly intoxicated and had previously been called to the defendant's house, along with multiple other officers, to respond to an incident. Moreover, Holcroft was aware that the defendant had been arrested for leaving the scene of an accident after causing property damage.

The defendant continued traveling along several streets before reaching Mountain Avenue. After driving erratically and very slowly (approximately ten to twenty miles per hour) for over one-half mile, the truck turned into an unmarked driveway and stopped short of a garage attached to a home at the end of the driveway. Holcroft stopped part way down the driveway with both his lights and siren activated, got out of his cruiser, ran to the driver's side of the truck, and knocked on the window. At this point, he recognized the driver of the truck as the defendant, and ordered him out of the vehicle. The defendant ignored Holcroft's order and refused even to make eye contact. Holcroft noted that a female passenger was seated in the front of the vehicle.

The garage door at the end of the driveway then began to rise. Holcroft ordered the defendant to stop and step out of the vehicle, but the defendant did not comply, and proceeded to drive the truck into the garage. Holcroft followed the truck on foot. The defendant drove his vehicle as far into the garage as possible, and pressed a button on a remote control inside his truck, causing the garage door to close slowly. In response, Holcroft wedged a nearby ice pick under the garage door to prevent it from closing. He then entered the defendant's garage and approached the driver's side door of the truck. Holcroft again ordered the defendant out of the vehicle. At this point, the female passenger got out of the truck and entered the basement of the home through a doorway connecting the garage to the house. The defendant, continuing to disobey Holcroft, slid from the driver's seat to the passenger's seat and began to get out by the passenger's side

door. Holcroft proceeded around the back of the vehicle with his baton drawn, ordered the defendant to turn around, and informed him that he was under arrest.

The defendant continued to ignore Holcroft's commands and instead made a forward motion towards him. Holcroft smelled an odor of alcohol coming from the defendant, and observed that his eyes were glassy and bloodshot, his speech was thick and slurred, and he was very unsteady on his feet. Holcroft cautioned the defendant that if he did not comply and desist with his forward movements, Holcroft would spray him with pepper spray. The defendant continued toward Holcroft. After shoving the defendant away twice, Holcroft sprayed the defendant once in the face with pepper spray. The defendant then turned and stumbled through the doorway into the basement of the home. After a brief struggle at the basement door, the defendant was able to shut the door, leaving Holcroft behind in his garage.

Holcroft drew his service weapon and followed after the defendant. The defendant left his house through a back door in an attempt to flee and subsequently was apprehended in the backyard when police backup arrived.

Procedural history. On February 16, 2010, a criminal complaint issued in the Newburyport Division of the District Court Department, charging the defendant with operating a vehicle while under the influence of liquor (OUI), third offense, in violation of G.L. c. 90, § 24(1) (a ) (1) ; resisting arrest, in violation of G.L. c. 268, § 32B ; reckless operation of a motor vehicle, in violation of G.L. c. 90, § 24(2) (a ) ; failure to stop for police, in violation of G.L. c. 90, § 25 ; and a marked lanes violation, in violation of G.L. c. 89, § 4A. Prior to trial, the defendant filed a motion to suppress, contending that Holcroft's entry into his garage constituted an unconstitutional search and seizure. After an evidentiary hearing, the motion judge denied the defendant's motion based on the existence of probable cause and several exigent circumstances, including hot pursuit, risk of flight, and dissipation of evidence.² The defendant subsequently moved for reconsideration, and the judge amended three specific findings of fact in an amended decision issued in December, 2010.

A two-day jury trial commenced on March 21, 2011. At the close of the Commonwealth's case, the defendant moved for a

required finding of not guilty, which was denied as to all counts except reckless operation of a motor vehicle. The defendant subsequently moved for a required finding of not guilty at the close of all the evidence. This motion was denied and the jury found the defendant guilty on all the remaining counts.

The following day, after a bench trial, the judge found that the defendant had been convicted of OUI on two prior occasions, making the instant charge his third offense and therefore a felony. The defendant filed a timely notice of appeal in April, 2011, and we transferred the defendant's appeal to this court on our own motion.

Discussion. On appeal, the defendant argues that the motion to suppress evidence was wrongly denied, and that the evidence was insufficient to prove both that he was under the influence of liquor when arrested and that he had two prior OUI convictions. We address each argument in turn.

1. Suppression motion. When reviewing a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error,” but “independently review the judge's ultimate findings and conclusions of law.” Commonwealth v. Tyree, 455 Mass. 676, 682, 919 N.E.2d 660 (2010), citing Commonwealth v. Colon, 449 Mass. 207, 214, 866 N.E.2d 412 (2007), cert. denied, 552 U.S. 1079, 128 S.Ct. 810, 169 L.Ed.2d 611 (2007).

“Warrantless entries into the home are prohibited by the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights absent either probable cause and exigent circumstances, or consent.” Commonwealth v. Rogers, 444 Mass. 234, 236, 827 N.E.2d 669 (2005). “A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement's need to ... engage in ‘hot pursuit’ of a fleeing suspect.” Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 1558, 185 L.Ed.2d 696 (2013), citing United States v. Santana, 427 U.S. 38, 42–43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).³ See Commonwealth v. Paniaqua,

413 Mass. 796, 797–798, 604 N.E.2d 1278 (1992). It is the Commonwealth's “heavy burden” to establish both the requisite probable cause and exigent circumstances. See Tyree, 455 Mass. at 684, 919 N.E.2d 660. When asserting an exigency exception,

the Commonwealth must show that it was impracticable for the...