Opinion
14-P-1038
12-09-2015
COMMONWEALTH v. AMY L. PIKE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Amy L. Pike, appeals from her conviction of operating a motor vehicle under the influence of intoxicating liquor (OUI), second offense. Her sole claim of error is the denial of her pretrial motion to dismiss, in which she argued that she was illegally arrested in Newburyport by a Salisbury police officer acting outside of his jurisdiction. We affirm.
The defendant does not challenge the guilty finding on the subsequent offense portion of the OUI charge, or the finding of responsible on the civil motor vehicle infraction.
A judge of the District Court initially allowed the defendant's motion to dismiss. The Commonwealth filed a motion to reconsider, citing in support Commonwealth v. Bartlett, 465 Mass. 112 (2013), which was decided after allowance of the defendant's motion. Upon reconsideration, the judge reversed her ruling and denied the motion.
Background. At a hearing on the motion, the Commonwealth entered into evidence a mutual aid agreement between the two municipalities entitled "Mutual Agreement - Police Jurisdiction - Police Services" (agreement). The arresting officer, Richard Dellaria, also testified to the following unchallenged facts. On August 14, 2012, at approximately 1:00 A.M., he spoke with James Pike (the defendant's brother), the defendant, and another female in a marina parking lot in Salisbury. The defendant "showed classic signs of an intoxicated person." After assurances that the three would be sleeping on a boat in the marina, Dellaria left the area.
Approximately twenty minutes later, James Pike contacted the Salisbury police department and reported that the defendant was crossing over the Gillis Bridge into Newburyport attempting to recover her car. As Dellaria drove over the bridge in search of the defendant, he contacted the Newburyport police department. A Newburyport police dispatcher reported to Dellaria that Newburyport officers were tied up with an incident at a local hospital. Dellaria located the defendant driving a black Jeep, and then observed her commit numerous motor vehicle infractions. Dellaria sought and was granted authorization from the Newburyport police department, through its dispatcher, to stop the defendant within their jurisdiction. Newburyport police officers arrived within one minute of the stop. They asked Dellaria to conduct field sobriety testing and, ultimately, arrest the defendant.
The Gillis Bridge connects Salisbury and Newburyport.
The defendant made two wide turns, committed marked lanes violations, and her speed never exceeded ten miles per hour in a thirty mile per hour zone.
Discussion. "General Laws c. 40, § 8G, authorizes municipalities to enter into so-called mutual aid agreements, which permit police departments to share personnel, supplies, and equipment in order to 'increase the capability of such departments to protect the lives, safety, and property of the people in the area.' Police officers acting under such agreements 'have all the immunities and powers granted to them in the municipalities that employ them, including, but not limited to, powers of arrest.'" Commonwealth v. Bartlett, 465 Mass. 112, 117 (2013), quoting from G. L. c. 40, § 8G.
Police officers may also perform extraterritorial arrests pursuant to G. L. c. 41, § 98A, inserted by St. 1967, c. 263, so long as the officer is in "fresh and continued pursuit." That statute does not apply here because Dellaria was not in continual pursuit of the defendant from Salisbury into Newburyport.
Nine adjacent municipalities, including Salisbury and Newburyport, entered into such an agreement on March 19, 2012. It authorizes on-duty police officers to exercise full police powers in each contiguous municipality subject to the conditions outlined therein. As is relevant here, Dellaria was authorized to exercise police powers in Newburyport only "[w]hen circumstances [arose] dictating an immediate response or action for the good of public safety." In such circumstances, "[Salisbury] will notify [Newburyport] as soon as practically possible."
Remarkably, the language of the mutual aid agreement that was at issue in Bartlett is identical to the language of the agreement here. In that case, the court held that the clause allowing an officer to act "for the good of public safety" granted him the authority to effectuate an extraterritorial stop "in order to ensure that the defendant's erratic operation did not endanger other drivers, and in order to determine whether the defendant was operating while under the influence of drugs or alcohol." Bartlett, supra at 117, 118. So too, here, where Dellaria believed the defendant to be highly intoxicated, observed her driving erratically, and acted in full accordance with the agreement in contacting the local municipality, his "actions were within the authority that the mutual aid agreement granted him." Id. at 118. See Commonwealth v. Daniel, 464 Mass. 746, 756 (2013), quoting from Commonwealth v. Smigliano, 427 Mass. 490, 493 (1998) ("'Erratic' driving that violates the civil motor vehicle code may give rise to a reasonable suspicion that a driver is impaired, permitting an investigatory stop"). There was no error.
Judgment affirmed.
By the Court (Agnes, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 9, 2015.