Opinion
16-P-590
08-23-2017
COMMONWEALTH v. Sean SULLIVAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the allowance of the defendant's motion to suppress and the denial of its motion to reconsider. The Commonwealth contends that the mutual aid agreement adopted by Natick and Sudbury in accordance with G.L.c. 40, § 8G, authorized the extraterritorial stop in question, and that the motion judge erred in allowing the defendant's motion to suppress. We reverse.
The Commonwealth's application for an interlocutory appeal was allowed by a single justice of the Supreme Judicial Court.
We acknowledge the amicus brief submitted by the Massachusetts Chiefs of Police Association.
Background. On April 4, 2014, Sergeant John Perodeau of the Sudbury police department joined in the surveillance of a car that had been the subject of an ongoing breaking and entering investigation in the surrounding area. The surveillance began in the neighboring town of Lincoln, whose police department requested additional assistance. The purpose of the surveillance was to see "whether or not this vehicle would lead [the police] to anything of evidentiary value regarding breaking and entering crimes."
Sergeant Perodeau had joined other unmarked police cars from Lincoln and surrounding communities; the police cars were "swapping" places to avoid detection. Sergeant Perodeau observed the car travel down dead-end roads and make U-turns, ultimately returning in the original direction. From there, he followed the car into Lexington. Eventually, the car entered Route 128 and turned onto Route 9, heading west. He had seen two men in the car; he believed the driver to be the defendant, whom he knew from high school, but he could not make a positive identification.
Earlier that day, Sergeant Perodeau had looked up the defendant's license, and learned that it was suspended. As the car was approaching Natick from Wellesley, Sergeant Perodeau called Detective Chad Howard of the Natick police department, who confirmed that the defendant's license was suspended.
Sergeant Perodeau asked Detective Howard to send a Natick cruiser to assist. The Natick cruiser was on the other side of town, near the Natick Mall. Shortly afterward in Natick, Sergeant Perodeau pulled up next to the car in stopped traffic, and recognized the defendant. Concerned that he would lose the car, Sergeant Perodeau told Sergeant Howard that he was going to stop the car. He then conducted a stop, and "pulled" the defendant from the car. The Natick officers arrived three to five minutes later.
The defendant maintained the speed limit and did not commit any motor vehicle violations during the course of the surveillance.
The defendant moved to suppress evidence, arguing that the stop exceeded the permissible scope of the mutual aid agreement adopted in accordance with G.L.c. 40, § 8G. The judge allowed the motion on the basis that "[a] suspended license stop does not fall under the statute."
The judge also appears to have relied on G.L.c. 40, § 4J, which is inapplicable.
Discussion. "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. Jewett, 471 Mass. 624, 628 (2015), quoting from Commonwealth v. Tyree, 455 Mass. 676, 682 (2010).
Extraterritorial stop. "A police officer lacks authority to act outside his or her jurisdiction, unless specifically authorized by statute or in the performance of a valid citizen's arrest at common law." Commonwealth v. Twombly, 435 Mass. 440, 442 (2001), citing Commonwealth v. Savage, 430 Mass. 341, 343-346 (1999).
"The appropriate remedy for unauthorized extraterritorial action is suppression of the resulting evidence." Commonwealth v. Lahey, 80 Mass. App. Ct. 606, 610 (2011).
The stop here does not fall under any statutory or common-law exception. For this reason, we are left exclusively to the authority conferred by the mutual aid agreement between Sudbury and Natick to justify the extraterritorial stop. General Laws c. 40, § 8G, inserted by St. 1972, c. 220, § 2, provides that cities and towns may enter into mutual aid agreements with other cities and towns to "protect the lives, safety, and property of the people in the area designated in the agreement." The "agreement may include the furnishing of personal services, supplies, materials, contractual services, and equipment when the resources normally available to any municipality in the agreement are not sufficient to cope with a situation which requires police action" and may confer "all the immunities and powers granted to [police departments] in the municipalities that employ them, including, but not limited to, powers of arrest." Ibid. Furthermore, a "mutual aid agreement may provide for methods of activation or requesting and responding to mutual aid requests." G.L.c. 40, § 8G, as amended by St. 2004, c. 81.
See G.L.c. 41, §§ 98A, 99. See also G.L.c. 90C, § 2 ; Commonwealth v. Grise, 398 Mass. 247, 249-251 (1986) ; Commonwealth v. LeBlanc, 407 Mass. 70, 74 (1990).
At the time of the defendant's arrest, Sudbury and Natick were signatories to the Massachusetts Interagency Mutual Aid Agreement (Agreement). The Agreement "establish[es] a strategic working partnership to address public safety concerns," including not only natural disasters and terrorist acts, but also matters ranging from workplace violence, to demonstrations, to impaired driving, as well as "any situation threatening the peace and tranquility in the Parties' jurisdiction." The Agreement explicitly grants all police powers, including the power of arrest, to each police officer within the territorial limits of each party to the Agreement, whether the officer was acting pursuant to a request or self-activation.
The Agreement provides that any party or its designee may request assistance from any other party for "any valid law-enforcement purpose," including but not limited to the enumerated purposes of the Agreement and any reason that would permit self-activation. The Agreement's self-activation provision contains a far broader enumeration of powers than those set forth in the stated purposes of the Agreement. Section 6.04 of the Agreement permits a "[p]olice [o]fficer who observes or becomes aware of any violation of law within the territorial limits of any [signatory to the Agreement] ... [to] exercise [p]olice [p]owers," including the power to arrest. Thus, the powers of self-activation under this Agreement appear to extend to misdemeanor offenses, such as driving with a suspended license, that do not threaten the "peace and tranquility" of the jurisdiction in which the offense occurs. See generally Commonwealth v. Baez, 42 Mass. App. Ct. 565, 568-570 (1997).
The defendant maintains that Sergeant Perodeau acted under the self-activation provisions of the Agreement. He further contends that the Agreement impermissibly exceeds the scope of the authority granted under G.L.c. 40, § 8G, because driving under a suspended license is a misdemeanor offense which does not involve "public safety" within the meaning of § 8G. Cf. Twombly, 435 Mass. at 443-444 (driving after a license suspension does not constitute threatened breach of the peace and therefore does not fall within the statutory exception for requesting aid "in the preservation of the peace" under G.L.c. 37, § 13 ); Baez, supra (driving under revoked license is not a crime constituting a breach of the peace because license may have been revoked for nonpayment of insurance premiums). Compare Commonwealth v. Bartlett, 465 Mass. 112, 117-118 (2013) (extraterritorial stop of erratic driver whose driving presented an "immediate danger to others and public safety" was permissible under the terms of a mutual aid agreement that permitted the extraterritorial exercise of police powers in "circumstances dictating an immediate response or action for the good of public safety").
We need not reach this question, however, because Sergeant Perodeau acted with the knowledge of the Natick police department, such that the stop may be considered one made by request. At the hearing before the District Court judge, the Commonwealth argued that the Sudbury officer acted at the request of the Natick police, and, alternatively, that the Sudbury officer was authorized by the Agreement to stop the defendant. Although the facts of this case do not fall neatly into either the request or the self-activation provisions of the Agreement, what happened is undisputed. Sergeant Perodeau called the Natick police department, notified a Natick police detective of the situation, verified the status of the defendant's license, requested assistance, and when it became apparent that assistance would be delayed, informed the Natick detective that he would initiate the stop. "Given ... the frequently fleeting and emergency nature of many situations that confront police officers, ... it is both reasonable and commonsensical to construe the mutual aid agreement so as to accommodate such informality and flexibility." Commonwealth v. McCrohan, 34 Mass. App. Ct. 277, 284 (1993). Under these circumstances, where the stop was made with the knowledge and acquiescence of the receiving party, the stop may be treated as one conducted by request. Compare Commonwealth v. Morrissey, 422 Mass. 1, 3-4 (1996) (officer stopped "the defendant at the request of a police officer whose jurisdiction included the place where the stop occurred"). Contrast Commonwealth v. Claiborne, 423 Mass. 275, 280 n.3 (1996) ("Unlike the officer in ... Morrissey, ... the Brookline officers did not seek or receive authority from Boston police to pursue the defendant").
The Agreement does not designate a particular individual to receive or approve requests, and does not contain a specific procedure for obtaining approval, other than to say that all pertinent information should be provided to the receiving party.
This case is therefore governed in all respects by McCrohan. In that case, a Berkley police officer had requested the assistance of two Freetown police officers in questioning the defendant, who had been driving with an expired inspection sticker and was suspected of driving on a suspended license. McCrohan, supra at 278-279. The defendant argued that the mutual aid agreement in effect between the towns was not applicable because "the ‘minor civil motor vehicle infraction ...’ could not rise to the level of need that would require the assistance of a police officer from a signatory community." Id. at 285. We said that there is "no authority for the proposition ... that this or any court is empowered to second-guess and invalidate a police officer's discretionary determination that an ongoing field investigation requires additional resources beyond a single officer's capabilities." Ibid. Put another way, in the particular circumstances presented here, we do not consider the reference to "public safety" in G.L.c. 40, § 8G, to have been intended by the Legislature to limit the authority of a police department that is party to a mutual aid agreement to request assistance in an ongoing field investigation of a misdemeanor not involving public safety, or to bar the cooperating department from making an exterritorial stop that has been so authorized.
Because the Agreement permitted Natick to request and obtain assistance from other parties to the Agreement, the extraterritorial stop of the defendant's car was authorized. The order allowing the motion to suppress is reversed.
So ordered.
Reversed.