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Commonwealth v. Savage11/4/1999
Franklin.
October 5, 1999.
Search and Seizure, Arrest, Pursuit. Arrest. Constitutional Law, Search and seizure. Statute, Construction. Police, Unlawful arrest. Motor Vehicle, Operating under the influence.
Complaint received and sworn to in the Greenfield Division of the District Court Department on August 18, 1997.
A pretrial motion to suppress evidence was heard by M. John Schubert, Jr., J, and the case was tried before W. Michael Ryan, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
We are asked to determine whether a Vermont State trooper's stop of a motorist in Massachusetts for driving while under the influence of intoxicating liquor was lawful. Because we conclude that the stop was an unlawful extraterritorial stop, we reverse the defendant's conviction.
The facts are not in dispute. It was a rainy evening on August 16, 1997, and Trooper David Gerard of the Vermont State police was on duty patrolling Interstate 91 in Vermont. At approximately 8:35 P.M., the dispatcher advised Trooper Gerard of a telephone call reporting a brown vehicle with Massachusetts registration plates driving erratically and traveling southbound on Interstate 91 in Vermont near Exit 2. After waiting for the brown vehicle between Exits 1 and 2, and not locating it, Trooper Gerard radioed the dispatcher and asked for a description of the caller's vehicle. Trooper Gerard learned that the caller was driving a green Jeep, which he had just seen pass his location. After stopping the green Jeep five miles north of the Massachusetts border, Trooper Gerard spoke with the driver who reported that the brown car was "all over the road," and had been driving toward Massachusetts at a high rate of speed. Trooper Gerard then proceeded rapidly toward Massachusetts on Interstate 91. As he approached the border, Trooper Gerard asked the dispatcher to notify the Massachusetts State police, but learned that they did not have any officers available in that area. Neither Trooper Gerard nor any other police officer had actually observed the brown vehicle driving erratically in Vermont.
After crossing the Massachusetts border, Trooper Gerard saw what he thought might be the brown vehicle that was the subject of the complaint pull into a rest stop. Trooper Gerard followed the brown vehicle as it left the rest area, and for the first time personally observed erratic driving. Trooper Gerard then activated his cruiser lights and pulled the brown vehicle over. As the defendant rolled down her window, Trooper Gerard smelled the odor of alcohol and noticed her bloodshot eyes. Trooper Gerard asked the defendant to get out of the vehicle and to wait with him in his cruiser for the Massachusetts State police to arrive. After approximately ten minutes, Trooper Thomas Murphy of the Massachusetts State police arrived, performed a field sobriety test, and arrested the defendant for operating while under the influence of alcohol.
On August 18, 1997, the defendant was arraigned in Greenfield District Court on the charge of operating a motor vehicle while under the influence of liquor, G. L. c. 90, Sect. 24, which charge was later amended to reflect that this was the defendant's second offense. On October 31, 1997, the defendant filed a motion to suppress seeking to exclude the evidence obtained as a result of the stop of the defendant by the Vermont State trooper while in the Commonwealth. Following a December 12, 1997, hearing, the Judge denied the defendant's motion to suppress on January 30, 1998. On September 8, 1998, the defendant was convicted at a jury-waived trial. That same day, the defendant file
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