Posts tagged "1108414"

Commonwealth v. Fisher (Lawyers Weekly No. 11-084-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030;   13-P-837                                        Appeals Court   COMMONWEALTH  vs.  CYRUS S. FISHER. No. 13-P-837. Hampshire.     May 9, 2014. – July 22, 2014. Present:  Cohen, Sikora, & Agnes, JJ. Search and Seizure, Motor vehicle, Reasonable suspicion.  Controlled Substances.  Constitutional Law, Search and seizure, Reasonable suspicion.  Practice, Criminal, Motion to suppress, Interlocutory appeal.       Complaint received and sworn to in the Northampton Division of the District Court Department on November 26, 2012.   A pretrial motion to suppress evidence was heard by Jacklyn M. Connley, J.   An application for leave to prosecute an interlocutory appeal was allowed by Barbara A. Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.     Michael J. Russo, III, Assistant District Attorney (Thomas H. Townsend, Assistant District Attorney, with him) for the Commonwealth. Leah R. Kunkel for the defendant.      AGNES, J.  This is an interlocutory appeal by the Commonwealth from an order of a District Court judge allowing the defendant’s motion to suppress evidence.  See Mass.R.Crim.P. 15, as appearing in 422 Mass. 1501 (1996).  The judge found, on the basis of the undisputed evidence, that the police were lawfully engaged in a community caretaking function when they responded to a report that a person in a car may be either having a seizure or suffering from a drug overdose.  What followed, as the facts below indicate, was the discovery of evidence indicating that the person in the vehicle, later identified as the defendant, Cyrus S. Fisher, possessed cocaine, a Class B controlled substance, and additional contraband.  For the reasons that follow, we conclude the judge erred in finding that the officer exceeded the scope of his authority when, during a well-being check, he ordered the defendant to step out of his motor vehicle.  Accordingly, we reverse the order allowing the defendant’s motion to suppress. Background.  The essential facts are not in dispute.  The only witness to testify at the hearing on the defendant’s motion to suppress was Northampton police Officer Brendan McKinney.  He was the second police officer to arrive at the scene, a gasoline station and convenience store located on King Street.  It was approximately 1:25 A.M. on November 24, 2012, when he arrived and found Officer McGrath already on scene.  A third police cruiser and the fire department soon arrived. […]


Posted by Massachusetts Legal Resources - July 23, 2014 at 12:15 am

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