joe @ Thu 17 Jun said:
The GORMAN test. To find a "breach of the peace" within the meaning of GORMAN. Test for authority of officers to arrest without warrants, act must at least THREATEN to have some disturbing effect on the public. Example would be Commonwealth VS Howe. A deputy may stop a vehicle for a civil infraction. The deputy then finds the operator to be O.U.I. The deputy may arrest. This is because O.U.I. THREATENS to have a disturbing effect on the public. The deputy needs no other elements, such as speeding, accident, reckless operation. Controlled substances THREATEN to have a disturbing effect on the public. Examples would be many. Controlled substances effect our children, schools, parks. They effect where we buy our homes and where we let our children play. They effect our property value and taxes. The united states spends billions of dollars a year fighting the "war on drugs" Massachusetts spends incredible amouts of money on drug court, and drug treatment centers. With all that said controlled substances THREATEN to have a disturbing effect on the public and would be a breach of the peace. Drug task forces many times seek the athority of the sheriffs to expand their jurisdiction. This would not make sense unless they then had the authority to arrest.
I think this is a HUGE stretch. Nowhere in Rogers or Scheft do either of them mention 94c when it comes to breach of peace applications. Likewise, in their respective 94c chapters, no mention is made about requiring a breach of peace or even using such to make the arrest. GORMAN is mentioned but OUI is completely different than 94c possession. OUI narcotics maybe but that isn't what is being discussed here. I fail to see how stopping someone for speeding and observing in plain view on the floor a roach, baggie of marijuana or a crack pipe rises to the level of a breach of peace or anticipatory breach of peace. That is evidence obtained after the fact. For Police officers empowered under law to make 94c arrests its a moot point. For those who arent but want to claim "breach of peace ergo arrest" its a leap of faith into a dark abyss. To quote Rogers " in GORMAN the Court stated that a peace officer
in the absence of specific statutory authority may arrest without a warrant for a misdemeanor only if the following exist:
1) the misdemeanor is committed in his or her presence or view
and
2) it violates or amounts to a breach of the peace
and
3) it is still continuing at the time of the arrest or is only interrupted such that the offense and the arrest are connected one to the other in time.
If some here are still uncertain, refer to Comm. v Twombley 2001. I will post the ruling here. In summary, the Court held that a MV stop resulting in an OUI arrest by an out of jurisdiction officer DID NOT amount to a breach of peace and therefore the arrest was unlawful:
The Commonwealth contends, however, that while not criminal, the defendant's conduct nevertheless constituted a breach of the peace, and the Salisbury police were accordingly authorized by the statute to seek the aid of the Amesbury police to apprehend or secure the defendant for his breach. The Commonwealth relies in this regard upon Commonwealth v. Gorman, 288 Mass. 294, 297-298 (1934), for the proposition that driving under the influence always constitutes a breach of the peace. In Gorman, however, the issue was whether arrest without a warrant was authorized to prevent an imminent breach of the peace the officer thought likely to occur because the defendant was driving under the influence. While Gorman does not suggest that a breach of the peace is somehow inherent in the act of driving under the influence, even if we were to accept this proposition for the sake of argument, neither the Salisbury nor the Amesbury officer had reason to believe, and did not believe, at the time the stop was requested that the defendant was driving under the influence. It follows, then, that the officers also could not have believed the defendant was committing a breach of the peace or that they were acting to prevent an imminent breach of the peace. The Commonwealth's position could only succeed were we to determine the lawfulness of a stop with the benefit of evidence obtained after and derived from the stop -- here, that the defendant also displayed indicia of intoxication.
The lawfulness of a stop, of course, cannot hinge on evidence obtained as a result of that stop lest the right guaranteed under the Fourth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights to be free from illegal searches and seizures be rendered meaningless.
We turn then to the possibility that, even apart from any necessary connection between driving under the influence and a breach of the peace, the defendant's conduct, viz, speeding and improper passing, might itself constitute a breach of the peace. Commonwealth v. Orlando, 371 Mass. 732 (1977), suggests the relevant criteria. First, the conduct must be of a character that most people would find to be unreasonably disruptive. Id. at 734-735. Second, the conduct must in fact have infringed on someone's right to be undisturbed. Whether conduct disturbs the peace will depend on when and where it occurs, for what may be perfectly appropriate conduct at one time and place may at another be a breach of the peace. Id. at 735. ("[L]ike a pig in the parlor instead of the barnyard." Euclid v. Ambler Realty Co., 272 U.S. 365, 388 [1926] [nuisance case]). The evidence the Salisbury officer could reasonably have believed, i.e., the defendant's conduct of speeding and passing, as he described it, does not constitute a breach of the peace.
We think that Commonwealth v. LeBlanc, 407 Mass. 70 (1990), rather than Commonwealth v. Morrissey, 422 Mass. 1 (1996), controls the result here. In LeBlanc, a Natick police officer while in Natick observed a vehicle pass through a red light at a high rate of speed. The officer followed the driver into Framingham where he stopped him. After the officer detected a strong odor of alcohol, he asked the driver to perform field sobriety tests, and then arrested him. Because the officer was not within his jurisdiction at the time of the arrest, and there was no statutory or common law exception to authorize the stop, it was held to be illegal. In so holding, the court rejected the Commonwealth's suggestion that expansion of the officer's territorial authority to make such stops was implied under G. L. c. 41, § 95 (extraterritorial authority to execute arrest warrants); G. L. c. 41, § 98 (extraterritorial authority to carry weapons); or G. L. c. 41, § 98A (extraterritorial fresh pursuit for arrestable offenses). The court observed that
"Rather than implying that the Legislature intended to give the police the authority to make extraterritorial stops, these statutes demonstrate that the Legislature knows how to expand the extraterritorial authority of the police when it thinks it fit to do so. The Legislature has chosen not to provide the police with extraterritorial authority to make stops for traffic violations. If it wishes to modify that judgment, it may do so."
Id. at 75. In the present case, as in LeBlanc, the Commonwealth points to no statutory or common law authority which might legitimate the challenged warrantless extraterritorial stop. The motion to suppress should have been allowed.
The judgment is vacated, the finding is set aside, and an order shall enter allowing the motion to suppress.
Like it or not there it is. I agree with what someone said earlier, all it takes is some sharp attorney to challenge this and win. This
is Massachusetts - dont be naive to think the Courts will grant more power to those who aren't specifically given them now..... :shock: