Commonwealth v. Lariviere

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18-P-1674 Appeals Court

COMMONWEALTH vs. DONALD LARIVIERE.

No. 18-P-1674.

Essex. May 2, 2019. - September 17, 2020.

Present: Vuono, Maldonado, & Neyman, JJ.

Motor Vehicle, Operating under the influence. Police, Unlawful
arrest. Arrest. Search and Seizure, Motor vehicle.
Practice, Criminal, Motion to suppress.

Indictments found and returned in the Superior Court
Department on February 1, 2018.

A pretrial motion to suppress evidence was heard by James
F. Lang, J.

An application for leave to prosecute an interlocutory
appeal was allowed by Scott L. Kafker, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by him to the Appeals Court.

Scott F. Gleason for the defendant.
Catherine Langevin Semel, Assistant District Attorney, for
the Commonwealth.

MALDONADO, J. The defendant, Donald Lariviere, was

indicted for operating a motor vehicle while under the influence
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of intoxicating liquor (OUI), fifth offense, and for operating a

motor vehicle after his license had been suspended for OUI. He

filed a motion to suppress evidence obtained as a result of an

allegedly improper stop in Salisbury, Massachusetts, by a New

Hampshire police officer. After an evidentiary hearing, a judge

of the Superior Court denied the defendant's motion to suppress.

A single justice of the Supreme Judicial Court allowed the

defendant's petition for interlocutory review and transferred

the matter to this court. Before us is the defendant's appeal

from the order denying his motion. We affirm.

Background. We summarize the judge's findings of fact,

supplementing with additional facts as necessary from testimony

and evidence that the judge implicitly credited. See

Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450

Mass. 818 (2008).

Shortly after midnight on October 12, 2017, Officer Daniel

Henderson of the Seabrook, New Hampshire, Police Department was

patrolling Route 1A in Seabrook when he saw a vehicle operated

by the defendant straddle the dotted white line dividing the two

southbound lanes of the road. The defendant's vehicle then

drifted almost halfway into the left lane of traffic and back to

the right southbound lane, and continued to weave repeatedly

within the right lane.
3

Henderson attempted to stop the defendant's vehicle by

activating his cruiser's blue lights. Instead of pulling over,

the defendant remained in the "right-hand lane, which became a

clearly designated turning lane for Route 286," but he did not

turn right. Rather, he continued driving southbound into

Massachusetts. Just as the defendant crossed the State line

between Seabrook, New Hampshire, and Salisbury, Massachusetts,

Henderson activated the cruiser's siren. The defendant slowly

pulled over, after traveling approximately fifty yards farther

down the road. Henderson pulled up behind the defendant's

vehicle but remained in his cruiser. Henderson notified his

dispatcher and requested that the Salisbury police be alerted.

He made no direct contact with the defendant.

Officer Jeremy Kelley of the Salisbury Police Department

arrived at the scene approximately five minutes later. After

conferring with Henderson, Kelley approached the defendant.

During their interaction, Kelley saw that the defendant's eyes

were bloodshot and glassy, and his speech was slow and slurred.

Despite a strong odor of cologne in the vehicle, Kelley smelled

alcohol in the vehicle and on the defendant's breath. Kelley

conducted field sobriety tests and formed the opinion that the

defendant was operating his vehicle while under the influence of

alcohol. Kelley placed the defendant under arrest.
4

In his motion to suppress, the defendant argued that all

evidence obtained as a result of his encounter with Kelley

should be suppressed because Henderson lacked authority to stop

the defendant in Massachusetts. The judge, recognizing that a

police officer cannot act outside his jurisdiction unless

specifically authorized by statute or in the performance of a

valid citizen's arrest at common law, see Commonwealth v.

Twombly, 435 Mass. 440, 442 (2001), articulated two bases for

denying the defendant's motion. First, the judge relied on

G. L. c. 41, § 98A, which authorizes an officer who sees a

person committing an arrestable offense in his jurisdiction, to

arrest that person in another jurisdiction upon "fresh and

continued pursuit."1 The judge concluded that § 98A applied here

because Henderson saw the defendant commit the arrestable

offense of failing to stop for a police officer in New Hampshire

and then pursued him into Massachusetts. Second, the judge

relied on Commonwealth v. Limone, 460 Mass. 834, 840 (2011), and

determined that Henderson's actions in Massachusetts did not

amount to an arrest of the defendant; rather, they were

1 As the judge correctly ruled, G. L. c. 276, § 10A
(allowing extraterritorial arrest upon fresh pursuit of person
suspected of committing felony in other jurisdiction), did not
apply because, at the time of the stop, Henderson did not know
of the defendant's prior convictions and thus he could not have
suspected the defendant of committing a felony rather than a
misdemeanor. See Commonwealth v. Lahey, 80 Mass. App. Ct. 606,
611 n.6 (2011).
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reasonable preventive measures to ensure public safety. We

conclude that the court's reasoning in Limone is controlling

here and we affirm the order denying the defendant's motion to

suppress on the basis that Henderson's actions amounted to a

reasonable investigatory stop by a citizen, rather than an

arrest. See Limone, supra at 840.2

Discussion. "In reviewing a decision on a motion to

suppress, 'we accept the judge's subsidiary findings of fact

absent clear error "but conduct an independent review of [the

2 In light of our holding, we do not reach the other issue
raised in this appeal: whether the judge properly denied the
motion to suppress based on his reasoning that Henderson's
conduct was permitted by G. L. c. 41, § 98A. We nevertheless
briefly touch upon the parties' arguments. The judge noted that
§ 98A, by its express terms, is not limited to intrastate police
action, and he construed the statute to authorize the pursuit of
the defendant by Henderson, an out-of-State officer. The
Commonwealth asserts that the judge's interpretation of a plain
reading of the statute is supported by Commonwealth v. Callahan,
428 Mass. 335, 338 (1998). In Callahan, while concluding that
under a similar statute, G. L. c. 41, § 99, Massachusetts
municipalities are permitted to requisition special police
officers from other States, the Supreme Judicial Court noted,
"In view of the important public interests served by
coordinating police functions between neighboring border towns,
we decline to impose a territorial limit on the statute where
the Legislature has not done so." Callahan, supra.

However, citing language from a footnote in a later Supreme
Judicial Court case, the defendant counters that § 98A
authorizes only "extraterritorial arrests between governmental
entities wholly within the Commonwealth" (emphasis added).
Commonwealth v. Savage, 430 Mass. 341, 344 n.5 (1999). For our
present purposes, because we conclude that Henderson did not
arrest the defendant, we need not -- and do not -- resolve the
question whether the territorial scope of G. L. c. 41, § 98A, is
limited to the Commonwealth.
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judge's] ultimate findings and conclusions of law."'"

Commonwealth v. Jessup, 471 Mass. 121, 129 (2015), quoting

Commonwealth v. Scott, 440 Mass. 642, 646 (2004). The defendant

argues that his motion should have been allowed because

Henderson acted without authority when he stopped the defendant

in Massachusetts. We disagree.

"Under the common law, a police officer cannot generally

make a warrantless arrest outside of his territorial

jurisdiction." Limone, 460 Mass. at 837, citing Commonwealth v.

Grise, 398 Mass. 247, 249 (1986). "[A]n officer may make a

warrantless arrest outside his jurisdiction if a private person

would have been permitted to make a 'citizen's arrest' under the

same circumstances." Commonwealth v. Bartlett, 465 Mass. 112,

115 n.4 (2013). However, "[a] private citizen may not make an

arrest for a misdemeanor, including driving while under the

influence." Id.

The defendant argues that Henderson conducted an improper

citizen's arrest for a misdemeanor.3 As the judge correctly

3 The Commonwealth properly does not assert that Henderson
saw the defendant commit in New Hampshire the misdemeanor
offense of OUI. Rather, the Commonwealth premises its argument
on the fact that Henderson saw the defendant commit in New
Hampshire the misdemeanor offense of failing to stop for a
police officer. Moreover, as already mentioned, at the time of
the stop, Henderson did not know of the defendant's prior OUI
convictions and thus Henderson could not have known that the
defendant was committing a felony.
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found, however, Henderson's stop of the defendant did not rise

to the level of an arrest.

"[W]hether [an] encounter was an arrest or 'merely' a stop

. . . depends on the proportional relationship of the degree of

intrusiveness on the defendant to the degree of suspicion that

prompted the intrusion." Commonwealth v. Willis, 415 Mass. 814,

819 (1993). "If an officer exceeds the scope of an

investigatory stop, the seizure becomes an arrest."

Commonwealth v. Manha, 479 Mass. 44, 48 (2018). This

determination is highly fact-specific and "depends upon the

circumstances of each case." Id. The detention of a motorist

in a routine traffic stop, without more, does not rise to the

level of an arrest. See Commonwealth v. Ayre, 31 Mass. App. Ct.

17, 20-21 (1991). Here, Henderson effected the stop in

Massachusetts by means of his cruiser's lights and sirens, and

made no other contact with the defendant. Given these

circumstances, Henderson's actions did not rise to an arrest by

an officer. Rather, Henderson's actions were akin to a

"reasonable investigatory stop by a citizen." Limone, 460 Mass.

at 840.4

4 We note that the requirements for a citizen's arrest are
"relaxed" in cases of police officers acting outside their
territorial jurisdiction. Commonwealth v. Claiborne, 423 Mass.
275, 281 (1996). We pass on the question whether a citizen's
investigatory stop, short of arrest, is afforded this same
8

In Limone, 460 Mass. at 835, an off-duty extraterritorial

police officer approached the driver of a stopped vehicle that

had collided with his. After a brief exchange in which he

identified himself as a police officer, the officer, suspecting

the driver was intoxicated, ordered the driver to step from the

vehicle. Id. He then reached into the vehicle and removed the

keys from the ignition before ordering the driver back into the

vehicle. Id. at 835-836. Concluding that the extraterritorial

officer took "reasonable . . . measures falling short of an

actual arrest," the Supreme Judicial Court reasoned that the

officer's actions were "minimally intrusive." Id. at 841, 842.

Here, Henderson's actions were no more intrusive.

Henderson initially saw the defendant driving erratically

and, activating his cruiser's blue lights, attempted to initiate

a stop in his own jurisdiction. As the defendant crossed over

the border into Massachusetts, Henderson did nothing more than

add his cruiser's sirens. Once over the border, the defendant

came to a stop, and Henderson simply pulled up behind him.

Henderson then waited in his cruiser while promptly contacting

local authorities.

Like the off-duty officer in Limone, 460 Mass. at 840,

Henderson "did not ask [the defendant] for a license and

relaxed standard, as the stop effected by Henderson would be
permissible under either standard.
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registration, did not investigate or collect evidence, [and] did

not [ask the defendant to] perform field sobriety tests."

Henderson also did not touch the defendant, draw any weapons,

speak to the defendant, take away his keys, or order the

defendant to get out of the vehicle. See id. at 840-841. "[I]t

is difficult to imagine a less intrusive manner by which

[Henderson] could have prevented injury to the public." Id. at

840. In sum, the stop was a "reasonable measure[], short of

arrest, to ensure public safety." Id. at 843.5

Order denying motion to
suppress evidence affirmed.

Given our conclusion that the stop of the defendant's
5

vehicle was lawful, we need not address the Commonwealth's
alternative argument, raised for the first time on appeal, that
evidence of the defendant's intoxication should not be
suppressed, based on the inevitable discovery doctrine.