Opinion
19-P-840
05-11-2021
COMMONWEALTH v. Alex AULSTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant has been charged with operating a motor vehicle while under the influence of liquor (fifth offense), G. L. c. 90, § 24 (1) (a ) (1), negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a ), and operating a motor vehicle after license suspended, G. L. c. 90, § 23. Following an evidentiary hearing, a Superior Court judge allowed the defendant's motion to suppress evidence obtained after his vehicle was stopped, reasoning that the seizure was without reasonable suspicion. The Commonwealth's application to pursue an interlocutory appeal was allowed by a single justice of the Supreme Judicial Court, who referred the matter to this court. On appeal, the Commonwealth contends that the seizure was justified by the community caretaking exception. In the alternative, the Commonwealth argues that even if the initial seizure of the defendant was not justified, independent and intervening crimes broke the chain of causation and dissipated the taint of any prior illegality. We affirm.
Background. We summarize the pertinent facts from the judge's findings on the motion to suppress, supplemented where appropriate by uncontroverted testimony that the judge explicitly or implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). While on routine patrol in a rural area at approximately 2:30 A.M. on April 21, 2018, Officer Andrew Sederquist of the Lakeville Police Department observed the defendant's vehicle parked approximately ten feet off the road, on the grass shoulder of Route 140. The vehicle's brake lights and "running lights" were on. Officer Sederquist pulled behind the vehicle for the purpose of conducting a well-being check and activated his blue lights. The defendant responded by pulling onto Route 140 and proceeding southbound. As Officer Sederquist followed and illuminated the defendant's vehicle with his spotlight, the defendant accelerated to the speed limit of sixty-five miles per hour. When Officer Sederquist activated his siren and signaled the defendant to stop, the defendant did not comply.
Route 140 at that location is a divided highway with two lanes moving in each direction.
Officer Sederquist had prior experience with a driver parked on the side of the road who was experiencing diabetic shock.
However, a vehicle in front of the defendant's vehicle slowed and veered to the side of the road. The defendant passed that vehicle, "almost sideswiping it," and continued for approximately two miles with Officer Sederquist in close pursuit with his overhead lights and siren activated. Meanwhile, officers responding to Officer Sederquist's request for assistance placed tire deflation devices in the highway to stop the defendant. The defendant's vehicle struck the devices, eventually lost a tire, and came to a stop in the breakdown lane. Officer Sederquist ordered the defendant out of the vehicle and observed that he was unsteady on his feet, smelled of alcohol, and had bloodshot and glassy eyes. The defendant was then arrested for operating a motor vehicle while under the influence of intoxicating liquor.
Discussion. We review the judge's decision under familiar standards. We accept the judge's factual findings unless they are clearly erroneous. See Commonwealth v. Meneus, 476 Mass. 231, 234 (2017). However, we "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Durand, 475 Mass. 657, 664 (2016), quoting Commonwealth v. Bostock, 450 Mass. 616, 619 (2008).
The judge concluded that Officer Sederquist's initial actions in stopping behind the defendant's parked vehicle and activating his blue lights were justified by his community caretaking function. See Commonwealth v. Evans, 436 Mass. 369, 373 (2002) (activating blue lights during roadside well-being check falls within community caretaking function and is not a seizure). He ruled, however, that the community caretaking function did not apply after the defendant drove back onto the highway, and that Officer Sederquist did not have reasonable suspicion to stop the defendant at the time he activated his siren and signaled the defendant to stop. On appeal, the Commonwealth argues that Officer Sederquist's pursuit of the defendant was simply a continuation of his community caretaking function that did not require reasonable suspicion. We agree with the judge that, in the circumstances presented here, the seizure of the defendant after he pulled onto the highway was not justified by the community caretaking function. See Commonwealth v. Quezada, 67 Mass. App. Ct. 693, 695 (2006) ("chasing the defendant and ordering him to stop went beyond the scope of the community caretaking function").
In the alternative, the Commonwealth argues that the exclusionary rule should not apply because the defendant's intervening criminal activity broke the chain of causation from any unconstitutional seizure. There is an exception to the exclusionary rule where the "connection [between the improper conduct and the derivative evidence has] become so attenuated as to dissipate the taint." Commonwealth v. Benoit, 382 Mass. 210, 216 (1981), quoting Nardone v. United States, 308 U.S. 338, 341 (1939). The Commonwealth has the burden of proving attenuation. Commonwealth v. Fredette, 396 Mass. 455, 459 (1985). In deciding "whether the evidence came about as a result of the ‘exploitation of th[e] illegality or instead by means sufficiently distinguishable to be purged of the primary taint,’ " Commonwealth v. Vasquez, 482 Mass. 850, 865 (2019), quoting Commonwealth v. Long, 476 Mass. 526, 537 (2017), we consider three factors: (1) the temporal proximity between the illegal conduct and the discovery of the evidence; (2) the intervening circumstances between the illegal conduct and the discovery of the evidence; and (3) the purpose and flagrancy of the official misconduct. See Commonwealth v. Borges, 395 Mass. 788, 795-796 (1985), citing Brown v. Illinois, 422 U.S. 590, 603-604 (1975).
We first consider the time between the unconstitutional seizure and the discovery of the evidence after the stop of the defendant's vehicle. Officer Sederquist testified that he pursued the defendant's vehicle for "about five minutes" and "roughly two miles" before it was disabled. Considering the uncontroverted evidence that the vehicles were travelling sixty-five miles per hour, the time involved may well have been shorter than Officer Sederquist's estimate. Either way, this relatively short period weighs in favor of the defendant.
Second, we consider the two possible intervening circumstances argued by the Commonwealth. First, motorists in Massachusetts are statutorily required to stop for police when so directed, and it is a crime to refuse. See G. L. c. 90, § 25. The judge's findings provided ample support for the conclusion that the defendant violated the statute by failing to stop. However, the Commonwealth did not argue in the Superior Court that the defendant's failure to stop was an independent intervening crime and the judge did not have an opportunity to address it. "It has long been our rule that we need not consider an argument that urges reversal of a trial court's ruling when that argument is raised for the first time on appeal." Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006). While on occasion we exercise our discretion to consider issues not raised in the trial court, we do so only on matters of public importance where the outcome of the case is not changed. Id. Those exceptions do not apply here and we decline to consider the argument.
We acknowledge that some states have concluded that a motorist's failure to stop is not an independent intervening crime sufficient to dissipate the taint of an unconstitutional seizure. State v. Campbell, 198 P.3d 1170, 1174 (Alaska Ct. App. 2008) ; State v. Beauchesne, 151 N.H. 803, 818 (2005) ; State v. Alexander, 157 Vt. 60, 64 (1991) ; but see Commonwealth v. Coleman, 64 Mass. App. Ct. 558, 562 (2005).
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At the motion hearing, the Commonwealth argued that Officer Sederquist had reasonable suspicion to stop the defendant for negligent operation of his motor vehicle. The elements of negligent operation of a motor vehicle, pursuant to G. L. c. 90, § 24 (2) (a ), are (1) operation of a motor vehicle, (2) on a public way, and (3) negligently, such that the lives or safety of the public might be endangered. See Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379 (2017). Officer Sederquist observed that the defendant disregarded the vehicle in front of him "and narrowly avoided a sideswipe collision." The judge found that "while the defendant continued to travel the speed limit in his lane, he almost sideswiped another vehicle pulling off the road in response to the police siren." We agree that this evidence established reasonable suspicion that the defendant negligently operated his vehicle. However, that conduct was neither "wholly independent of the illegal stop," Utah v. Strieff, 136 S. Ct. 2056, 2063 (2016), nor "sufficiently independent[ ] in nature" and "unrelated" to the original illegal seizure. Borges, 395 Mass. at 797. Accordingly, we discern no error in the judge's conclusion that "[t]his action does not constitute an independent crime apart from the chain of events sufficient to give rise to constitutional justification for the stop."
Finally, we briefly address the final factor, the purpose and flagrancy of Officer Sederquist's actions. We agree with the judge that Officer Sederquist's initial encounter with the defendant's vehicle on the side of the road was pursuant to "an appropriate community caretaking function," and was not investigatory in nature. While Officer Sederquist may have been mistaken about the scope of his community caretaking authority, nothing in the record suggests that his actions in following the defendant were a pretext, see Commonwealth v. Johnson, 58 Mass. App. Ct. 12, 15 (2003), or that he was attempting to obtain evidence against the defendant. See Commonwealth v. Manning, 44 Mass. App. Ct. 695, 699-700 (1998). Regardless of his good intent, however, he exceeded the scope of his authority. See Quezada, 67 Mass. App. Ct. at 695.
Balancing all of these factors, we cannot reasonably conclude that the connection between the improper seizure and the derivative evidence was so attenuated as to dissipate the taint of that seizure. The order allowing the motion to suppress evidence is affirmed.
So ordered.
Affirmed