COMMONWEALTH vs. STEVEN M. LAHEY.

SIKORA, J. At the conclusion of a bifurcated trial in Superior Court, the defendant was convicted of operating a motor vehicle under the influence of intoxicating liquor (OUI), seventh offense, G. L. c. 90, § 24(1)(a)(1); operating to endanger, G. L. c. 90, § 24(2)(a); and operating after revocation of his license, G. L. c. 90, § 23. [Note 1] On appeal he challenges the pretrial denial of his motion to suppress evidence resulting from the stop and detention of his automobile by a police officer of an adjacent town. He contends that the motion judge improperly applied the doctrine of inevitable discovery of incriminating evidence and that she later abused her discretion by denial of his request to renew the motion to suppress. For the following reasons, we affirm.

Facts. 1. Suppression findings. The evidence received at the two hearings upon the motion to suppress supported the following findings by the judge. [Note 2] On the evening of December 25, 2007, Norton police Officer Jeffrey Zaccardi escorted an ambulance to Sturdy Memorial Hospital in the neighboring town of Attleboro. After the arrival of the ambulance, Zaccardi drove his marked patrol car back toward Norton on Route 123, a two-lane east-to-west highway. As he traveled in the eastbound lane and still in Attleboro, he saw the defendant's car coming westward in the eastbound lane. It was moving at an excessive speed, and passing westbound vehicles in a no-passing zone. [Note 3] Zaccardi swerved off the roadway to avoid a head-on collision.

Zaccardi then reversed direction, turned on his patrol car's light bar and siren, and began pursuit of the defendant's car. Simultaneously he radioed his Norton police dispatcher and directed him to notify the Attleboro police dispatcher to send

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assistance to the pursuit. [Note 4] Zaccardi saw the defendant attempt unsuccessfully to pass vehicles; oncoming traffic blocked that maneuver. He overtook the defendant after one-half mile and forced him to the side of the road.

Zaccardi walked to the defendant's car, requested and received his keys and driver's license, and instructed him and a passenger to place their hands on the dashboard. At that time, he could hear the siren of an approaching Attleboro cruiser. It arrived within approximately twenty to thirty seconds of Zaccardi's receipt of the keys and license. Two Attleboro officers then conducted an investigation of the scene and collected evidence resulting in the eventual charges. Zaccardi briefed them about his observations and left within a few minutes. An Attleboro officer testified that their cruiser had reached the location of the stop in "[l]ess than one minute" after receipt of dispatch. Zaccardi testified, and the judge specifically found, that the purpose of his pursuit and detention of the defendant was the prevention of a fatal accident.

2. Suppression rulings. The defendant argued that Zaccardi, as a Norton police officer, lacked jurisdictional authority to stop the defendant in Attleboro; and that the substantial incriminating evidence resulting from the stop should be inadmissible because neither statutory nor common-law sources permitted an extraterritorial stop in these circumstances. In a detailed memorandum of decision, the judge agreed that neither statutory authorizations nor common-law doctrine appeared to validate the stop. She concluded, however, that the concept of inevitable discovery by lawful police action applied to the circumstances and provided a valid basis for admission of evidence yielded by the stop. She found that Officer Zaccardi had pursued the defendant in good faith for an urgent purpose of public safety and that his dispatch notices to the Attleboro police had assured their proper interception of the defendant.

3. Request to renew the motion to suppress; the turret tape. Approximately eight months after the judge's findings and rulings and five weeks before trial, the defendant moved to renew

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his motion to suppress upon the ground that an audio recording of Zaccardi's dispatch communications, or cruiser turret tape, would show that the Attleboro police had not arrived at the site until five minutes after the stop. The judge denied leave to renew the motion upon the grounds that defense counsel's ability to have known and to have presented any turret tape information at the suppression hearing ten months before amounted to waiver and that the time measurements of the tape would not offer new ground showing a need to review the earlier findings.

Analysis. The defendant argues generally that the concept of inevitable discovery should not apply to extraterritorial police stops and specifically that the evidence in this case does not establish the inevitability of his discovery by the Attleboro police. He challenges also the judge's denial of his request to renew his motion to suppress as an abuse of discretion.

1. Inevitable discovery. a. Standard of review. Most commonly, appeals from suppression decisions present constitutional questions of allegedly unreasonable search or seizure under the standards of the Fourth Amendment to the United States Constitution or art. 14 of the Declaration of Rights of the Massachusetts Constitution. Scores of cases establish the standard of review. The appellate court accepts the motion judge's subsidiary findings of fact unless they are clearly erroneous. It conducts an independent review of her ultimate findings and conclusions of law. See, e.g., Commonwealth v. Scott, 440 Mass. 642, 646 (2004); Commonwealth v. Colon, 449 Mass. 207, 214, cert. denied, 552 U.S. 1079 (2007). Under this standard, the credibility and weight of testimony remain the province of the motion judge directly observing the witnesses. See, e.g., Commonwealth v. Gentile, 437 Mass. 569, 573 (2002); Commonwealth v. Clark, 65 Mass. App. Ct. 39, 43 (2005), and cases cited.

Our case concerns not the usual constitutional contentions, but rather a statutory and common-law right of an individual to freedom from seizure and search by a police officer outside his lawful jurisdiction. The identity of the interests in freedom and privacy and the evidentiary consequences of suppression or admission of the resulting evidence lead us logically to apply the same standard of review to the defendant's nonconstitutional argument against the action of the police.

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b. Principle of jurisdictional limits. "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). It is a statutory violation for a police officer to engage in extraterritorial action without valid authority. See Commonwealth v. LeBlanc, 407 Mass. 70, 75 (1990); Commonwealth v. Hernandez, 456 Mass. 528, 532 (2010). The appropriate remedy for unauthorized extraterritorial action is suppression of the resulting evidence. See Commonwealth v. Grise, 398 Mass. 247, 253 (1986) (exclusion of evidence and dismissal of charges); Commonwealth v. LeBlanc, supra at 75 (police officer may not pursue motorist across his jurisdictional boundary for nonarrestable traffic violation; stop and arrest invalid; all resulting evidence of OUI suppressed); Commonwealth v. Savage, 430 Mass. 341, 347 (1999) (exclusion of evidence resulting from Vermont State trooper's arrest of intoxicated driver in Massachusetts); and Commonwealth v. Hernandez, supra at 532-533 (exclusion of evidence resulting from arrest of defendant by university campus police at place and for suspected conduct having no connection to university's property, facilities, or activities). Several statutory provisions authorize extraterritorial police action in well defined situations. [Note 5] The motion judge specifically excluded their application in this case. She

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excluded also the common-law exception for a permissible citizen's arrest [Note 6] and the constitutional allowance for the police exercise of the community caretaker function in circumstances of a public safety emergency. [Note 7]

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c. Inevitable discovery. While an unauthorized extraterritorial stop is a statutory violation, Commonwealth v. LeBlanc, 407 Mass. at 75, and while inevitable discovery is a corollary of constitutional law, Commonwealth v. O'Connor, 406 Mass. 112, 113 (1989), no principled distinction bars their blended application to the same case. The remedy of exclusion has worked as a deterrent and sanction against official violation of statutory authority. See Commonwealth v. Upton, 394 Mass. 363, 367 n.4 (1985), and cases cited; Commonwealth v. Hernandez, 456 Mass. at 532. In Commonwealth v. LeBlanc, supra, the court reasoned that the exclusionary rule, as a constitutional standard, applied to an unauthorized extraterritorial stop because "[t]he requirement that a police officer have lawful authority when he deprives individuals of their liberty is closely associated with the constitutional right to be free from unreasonable searches and seizures." Accord Commonwealth v. Hernandez, supra. As a matter of rational and consistent doctrine, if the standard of lawful inevitability will excuse a constitutional violation of interests of freedom or privacy, then it will excuse also a statutory violation of those same interests.

In his original motion to suppress, the defendant invoked the protection of art. 14 of the Declaration of Rights. Under that provision, Massachusetts courts enforce a more restrictive standard of inevitability than does the Fourth Amendment decisional law. See Commonwealth v. O'Connor, supra at 117. The Commonwealth must prove by a reasonable preponderance

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of the evidence the facts "bearing on inevitability"; and must demonstrate that discovery by lawful means was "certain as a practical matter." Ibid. See Commonwealth v. Perrot, 407 Mass. 539, 546-547 (1990); Commonwealth v. DiMarzio, 436 Mass. 1012, 1013 (2002). "The certainty of discovery must exist at the time of the unlawful seizure, not develop as a result of circumstances occurring thereafter." Commonwealth v. Ilges, 64 Mass. App. Ct. 503, 514 (2005), citing O'Connor, supra at 117 n.4. Finally, the Commonwealth must show that the police have not acted with bad faith to accelerate the discovery of evidence helpful to the prosecution or harmful to the defendant. See Commonwealth v. O'Connor, supra at 118-119; Commonwealth v. Sbordone, 424 Mass. 802, 810 (1997); Commonwealth v. Ilges, supra. The motion judge's findings should be specific and detailed. Commonwealth v. O'Connor, supra at 117.

In this instance the motion judge made the following specific subsidiary findings on the basis of the credibility of the two police witnesses. The defendant at excessive speed drove into an oncoming lane and forced the Norton police cruiser to drive off the road in order to avoid a head-on collision. The Norton officer began pursuit and simultaneously directed his dispatcher to inform the Attleboro police of the chase and the need for assistance. He followed the defendant's car along a single, narrow, two-lane road on which the speed limit approximated forty miles per hour and on which oncoming traffic obstructed the defendant's attempts to accelerate and pass vehicles in his own lane. The officer forced the defendant to pull over after a distance of one-quarter to one-half mile. He took the defendant's keys and driver's license. As he did so, he heard the siren of an approaching Attleboro cruiser. It arrived within twenty to thirty seconds of the first sound of the siren. The Norton officer undertook no arrest or investigation, turned the keys and license over to the Attleboro officers, briefed them, and left. [Note 8] The uncontradicted testimony of the Attleboro police witness was that his cruiser reached the site in less than a minute after receipt of the dispatch information. We cannot reject those credibility determinations of subsidiary facts as clearly erroneous.

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In turn, those findings establish, as an ultimate fact, the practical certainty of the discovery of the defendant by the Attleboro police. Officer Zaccardi's dispatch communications were entirely lawful and desirable, if not imperative, as action for public safety. Attleboro police would know of the location and direction of a conspicuously erratic driver heading westward into Attleboro on a single road. Traffic along the roadway hemmed him into his lane and curtailed his speed. The Attleboro police were stationed within a minute of the defendant's location. See United States v. Stilling, 346 Fed. Appx. 458, 460 (11th Cir. 2009) (inevitable discovery applicable where police officer stopped defendant's vehicle without probable cause, but another officer in pursuit had probable cause).

Finally, again as a matter of credibility supported by plausibility, the motion judge accepted the good faith of Officer Zaccardi's motivation, not to arrest the defendant and gather evidence against him, but rather to remove him from the highway and prevent a fatal accident. [Note 9]

Under the governing standard of review, the motion judge's subsidiary findings are free of clear error and her ultimate findings and conclusions of law satisfy the requirements of the concept of lawful inevitable discovery imposed by art. 14. [Note 10] Zaccardi acted to avert a grave highway accident. His lawful dispatch communications set in motion the encounter of the defendant by the Attleboro police. The governing formulation calls for discovery to a degree of practical certainty, not absolute certainty. The evidence satisfies that test.

2. Renewal motion. Pursuant to Mass.R.Crim.P. 13(a)(5), as appearing in 442 Mass. 1516 (2004), [Note 11] the defendant moved

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before trial to renew his failed motion to suppress by reason of newly discovered evidence in the audio turret tape of Officer Zaccardi's communications to Norton dispatch during the pursuit. The parties agree that the standard of review for a rule 13(a)(5) denial is abuse of discretion. See Commonwealth v. Haskell, 438 Mass. 790, 792-793 (2003) (renewal is appropriate for new or additional grounds not reasonably knowable at the time of the submission of the original motion; and for other unspecified circumstances). Abuse of discretion is a demanding standard. It usually requires the conclusion "that no conscientious judge, acting intelligently, could honestly have taken the view expressed by [her]." Commonwealth v. Medeiros, 395 Mass. 336, 351 (1985), quoting from Commonwealth v. Bys, 370 Mass. 350, 361 (1976).

Here, neither of the grounds cited by the judge would amount to an abuse of discretion. The defendant submitted his motion to suppress on or about June 18, 2008, or almost six months after his arrest. He did not move for production of the tape until July 21, 2008, almost seven months after arrest. Meanwhile, the judge conducted evidentiary hearings on July 23 and 31, 2008. At neither one did defense counsel propose a continuance until production. The Commonwealth produced the turret tape on August 18, 2008, or within a month after request. The judge delivered her order on the suppression motion on or about October 3, 2008. However, successor defense counsel did not submit the motion to renew until May 27, 2009, more than nine months after production and almost eight months after the judge's decision and only five weeks before trial. In short, the tape contents were readily discoverable for use in the original motion. The renewal motion was extraordinarily late; the pattern of untimeliness justified denial.

As a matter of caution, we have examined the transcript of the tape (included in the record appendix by agreement of the parties). The defendant maintains that it shows that as much as five minutes may have intervened between Zaccardi's stop of the defendant and the Attleboro cruiser's arrival. We cannot agree.

The contents of the tape are brief and somewhat elliptical. They cover a period of twelve minutes and twenty-two seconds, but consist of only one page. The tape appears to begin at the

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start of the pursuit. The defendant emphasizes a sentence by Officer Zaccardi at five minutes, thirty-two seconds, when he informs Norton dispatch that an Attleboro car is present at the stop scene. That sentence does not report the time of the arrival of that car. Another sentence at two minutes, eighteen seconds, indicates that an Attleboro unit may be present with him. These ambiguities would not infect the judge's subsidiary findings with clear error.

At the same time, some entries in the tape would strengthen the demonstration of inevitable discovery and apprehension of the defendant by the Attleboro police. At the twenty-second mark of the tape, Officer Zaccardi informs dispatch of the defendant's license plate number, a vital identification likely passing to the Attleboro police several seconds later. At the twenty-two second mark, Zaccardi informs dispatch of the specific buildings which he is passing as he travels westward along route 123 and farther into Attleboro. Thus Attleboro cruisers would know promptly of the direction, location, and license number of the defendant's car. Each of those elements would strengthen the practical certainty of his discovery.

In short, the tape contents would not undermine the validity of the judge's subsidiary and ultimate findings or conclusion of law. Substantial justice did not require allowance of the motion to renew. No abuse of discretion occurred.

Judgments affirmed.