Opinion
16-P-1177
05-02-2017
COMMONWEALTH v. Daniel R. CARMODY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Arguing error in the denial of his motion to suppress, the defendant appeals from his conviction by a District Court judge of operating a motor vehicle while under the influence of intoxicating liquor (OUI). We reverse.
Background. Amtrak police officer Robert Hanson testified at the evidentiary hearing on the motion to suppress. After crediting his testimony, the motion judge (who was later the trial judge) found that, on June 21, 2015, Hanson was monitoring a heavily used railroad grade crossing in Deerfield "with an eye towards speed enforcement." Hanson's purpose was to "alert drivers of the need to reduce speed ... because new high-speed passenger trains were now coming through this crossing at [eighty] miles per hour and warning signs were not yet in place." Hanson was in an Amtrak police uniform and a fully marked Amtrak police cruiser. He also had been appointed a "special [S]tate police officer" pursuant to G. L. c. 22C, §§ 51 - 53, inserted by St. 1991, c. 412, § 22.
The roads were wet on June 21. Around 1:00 a.m., Hanson observed a blue sedan coming down Elm Street at a high rate of speed. The sedan did not reduce its speed as it approached and crossed over the tracks on wet pavement. After the sedan had crossed the tracks, Hanson decided to stop it for violating G. L. c. 90, § 15. Hanson activated his blue lights and followed the sedan down Elm Street, left onto North Main Street, and for one-quarter mile before it stopped. Hanson approached, spoke with the operator whom he identified as the defendant, and detected an odor of alcohol. He contacted a Deerfield police officer, who arrived on the scene and placed the defendant under arrest. Hanson issued a motor vehicle citation for violation of G. L. c. 90, § 15, and a criminal complaint issued from District Court charging the defendant with OUI.
General Laws c. 90, § 15, as appearing in St. 1991, c. 201, § 1, provides in pertinent part that
"every person operating a motor vehicle, upon approaching a railroad crossing at grade, shall reduce the speed of the vehicle to a reasonable and proper rate before proceeding over the crossing, and shall proceed over the crossing at a rate of speed and with such care as is reasonable and proper under the circumstances."
The defendant moved to suppress all evidence obtained after the stop, including evidence of his intoxication, on the basis that Hanson lacked authority to initiate the stop. The judge ruled that Hanson had no authority on town streets to stop the defendant for violating G. L. c. 90, § 15, because he was not deputized as a Deerfield special police officer pursuant to G. L. c. 41, § 99. However, the judge concluded that because "Hanson's actions were reasonable and necessary for the protection of his employer's property and the Fourth Amendment [to the United States Constitution] is [thus] not applicable to his actions on the night in question," the defendant's subsequent arrest by Deerfield police was lawful. The judge denied the motion to suppress and the defendant's motion for reconsideration. Following a bench trial, the judge found the defendant guilty of OUI.
Under G. L. c. 41, § 99, as appearing in St. 1965, c. 382, a city or town may, upon the request of another city or town, "provide police officers, who shall have the authority of constables and police officers within the limits of such city or town, except as to the service of civil process...."
Discussion. In reviewing the denial of the defendant's motion to suppress, we accept the judge's subsidiary findings "unless they are clearly erroneous." Commonwealth v. Lahey, 80 Mass. App. Ct. 606, 609 (2011). We conduct "an independent review of [his] ultimate findings and conclusions of law," bearing in mind that "the credibility and weight of testimony remain" his province. Ibid.
"A police officer's authority is limited to the territorial jurisdiction of his appointment, barring a statutory exception." Commonwealth v. LeBlanc, 407 Mass. 70, 73 (1990). As a railroad police officer, G. L. c. 159, § 93, and as a "special [S]tate police officer," G. L. c. 22C, § 51, Hanson's authority was "limited to the premises" and vehicles of Amtrak. Commonwealth v. Mottola, 10 Mass. App. Ct. 775, 781 (1980). Hanson could stop the defendant on Amtrak property in order to issue a citation, G. L. c. 90C, § 2 ; however, he had no "authority to make an extraterritorial stop." Commonwealth v. LeBlanc, supra at 74.
We recognize that Hanson feasibly could not stop the defendant on Amtrak property in the peculiar circumstances of this case. However, there is no suggestion that stopping the defendant one-quarter mile away "was necessary for the protection of" Amtrak property. Commonwealth v. Hernandez, 456 Mass. 528, 530 n.3 (2010). There is no evidence that Hanson conducted the stop "on behalf of [Amtrak], in a manner that is reasonable and necessary for protection of [Amtrak's] property," Commonwealth v. Leone, 386 Mass. 329, 336 (1982) ; rather, the evidence was clear that Hanson stopped the defendant for violating G. L. c. 90, § 15. While we share the judge's concerns about the need for drivers to slow before crossing newly active and unmarked tracks, our courts have declined to "adopt an exception permitting officers to act without jurisdictional authority if they reasonably believe the lives of others to be in immediate danger." Commonwealth v. Lahey, supra at 611 n.7. "The Legislature has chosen not to provide the police with extraterritorial authority to make stops for traffic violations," Commonwealth v. LeBlanc, supra at 75, and "[t]he appropriate remedy for unauthorized extraterritorial action is suppression of the resulting evidence." Commonwealth v. Lahey, supra at 610. Furthermore, because here "it is palpably clear that evidence that the defendant was under the influence of intoxicating liquor would not have been obtained but for" the unlawful stop, Commonwealth v. Grise, 398 Mass. 247, 253 (1986), we reverse the defendant's conviction and direct the dismissal of the complaint.
We disagree with the judge's ruling that Hanson's actions were justified by "the existence of a lawful private purpose." Commonwealth v. Leone, 386 Mass. at 336. Hanson's position was not "similar to that of a police officer who intrudes by lawful means upon an individual's privacy, and then discovers unanticipated evidence," ibid., because Hanson had no lawful authority to stop the defendant on town streets.
Judgment reversed.
Finding set aside.
Orders shall enter allowing the motion to suppress and dismissing the complaint.