MA: Hot pursuit not justified for civil infraction of possession of MJ; not serious enough offense

“In this case, we consider whether the warrantless entry by police into a residence was justified where the entry was made while chasing the defendant, who fled from police during a stop for a civil infraction of marijuana possession. Concluding that these circumstances do not give rise to any exigency that would authorize the police to follow the defendant into a residence, we reverse.” Commonwealth v. Martin, 2017 Mass. App. LEXIS 90 (July 6, 2017):

The hot pursuit exception is inapplicable here for several reasons. This exception is based on the limiting principle that the grounds for entering a dwelling in hot pursuit of one fleeing arrest were set in motion in a “public place.” Santana, supra at 42-43. Put another way, the grounds for arrest must have been in place prior to the warrantless police entry. The exception is further limited to the capture of “an individual suspected of committing a jailable misdemeanor or felony.” Jewett, supra at 632-633. Here, the officers’ pursuit of the defendant commenced with probable cause to issue a citation for civil marijuana possession, which is not a jailable misdemeanor. See G. L. c. 94C, § 32L.

Furthermore, nothing that occurred during the chase supplied probable cause of a more serious offense. The Commonwealth argues that because the officers did not know that the defendant had run into his own home, they had probable cause to arrest the defendant for breaking and entering with the intent to trespass. The Commonwealth contends, therefore, that the officers were justifiably in hot pursuit of someone who had just committed a jailable misdemeanor when they followed the defendant into the residence. See generally Jewett, supra at 629-635. We disagree.

Probable cause to arrest “exists, where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Franco, 419 Mass. 635, 639, 646 N.E.2d 749 (1995), quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337 (1992). Here, there was no reason to believe that the defendant entered the residence unlawfully. When Beliveau and his partner first observed the defendant, he was seated in a legally parked vehicle on a residential street and was only forty to fifty feet from that residence. He entered the residence through a side door without the use of force or a key. Moreover, the police encounter had attracted the attention of a woman, who the defendant identified as his mother, and other individuals gathered on the street, and no one, including the individuals in the residence, gave any indication that the defendant was an intruder or unwelcomed. Contrast Commonwealth v. Small, 10 Mass. App. Ct. 606, 610, 411 N.E.2d 179 (1980) (defendant’s arrest based on information supplied by neighbor who had observed defendant attempt to break and enter nearby home). In these circumstances, there was an objectively reasonable possibility that the defendant lived or was welcomed at that address. To the extent the police may have doubted this conclusion, that doubt was not the equivalent of establishing probable cause to believe the defendant entered the residence illegally.