Commonwealth v. Jewett

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SJC-11796

COMMONWEALTH vs. ERIC A. JEWETT.

Essex. March 3, 2015. - June 11, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.

Arrest. Search and Seizure, Arrest, Exigent circumstances,
Probable cause, Pursuit. Probable Cause. Constitutional
Law, Probable cause. Motor Vehicle, Operating under the
influence.

Complaint received and sworn to in the Newburyport Division
of the District Court Department on February 16, 2010.

A pretrial motion to suppress evidence was heard by Peter
F. Doyle, J.; a motion for reconsideration was heard by him; and
the case was tried before Michael A. Uhlarik, J.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Todd C. Pomerleau (Chase A. Marshall with him) for the
defendant.
Philip A. Mallard, Assistant District Attorney, for the
Commonwealth.
John M. Collins, for Massachusetts Chiefs of Police
Association, Inc., amicus curiae, submitted a brief.
 2

CORDY, J. In this case we consider whether the hot pursuit

of a suspect who has fled to a private home and who an officer

has probable cause to believe has committed a misdemeanor for

which imprisonment is possible, creates a sufficient exigency

such that a warrantless arrest is lawful. We conclude that it

does in the circumstances of this case.

Background. We summarize the facts as found by the motion

judge, and as supplemented by the testimony at the suppression

hearing which he credited, see Commonwealth v. Isaiah I., 448

Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008), reserving

certain details for our analysis of the issues raised on appeal.

On February 14, 2010, at approximately midnight, Officer

Richard Holcroft1 of the Merrimac police department was on a

routine patrol in a marked police cruiser. While traveling west

on East Main Street he observed a male and female walking to a

pickup truck in the parking lot of a bar. There were only a few

vehicles in the lot and no other vehicles near where the truck

was parked. All other businesses in the area were closed.

Shortly thereafter, Holcroft's attention was drawn to a

different vehicle, traveling at a high rate of speed in the

opposite direction on East Main Street. He reversed direction

to pursue this speeding motor vehicle. While passing the bar

1
Officer Richard Holcroft was the only witness to testify
at the motion to suppress hearing, and the motion judge credited
Holcroft's testimony in his memorandum of decision.
 3

again, Holcroft observed the first vehicle (the truck) make a

wide left turn onto East Main Street. The truck pulled out in

front of Holcroft's vehicle and, in so doing, crossed the fog

line. The truck then moved back into its travel lane, but

subsequently crossed the fog line again, swerved over the double

yellow lines, and swerved back to the fog line. After observing

these three marked lanes violations, Holcroft began to pursue

the truck, activating his cruiser's full light bar.

The driver of the truck did not stop or pull over, but

began to travel at a markedly slower rate than the forty miles

per hour speed limit. Holcroft then turned on his cruiser's

siren, in addition to its flashing lights. The truck began to

weave within its lane, but the driver neither pulled over nor

attempted to stop. In the middle of this pursuit, Holcroft

observed the truck nearly strike a parked motor vehicle.

Fearing that the driver of the truck posed a danger to the lives

of other motorists on the way, Holcroft continued his pursuit of

the truck with both his lights and siren activated. The driver

subsequently took a wide left turn onto another street, but

still failed to stop.

Holcroft radioed his pursuit of the truck into the police

station and was informed by the police dispatcher that the truck

was registered to the defendant. Holcroft was familiar with the

defendant, as he had given him a ride on a prior occasion when
 4

the defendant was highly intoxicated and had previously been

called to the defendant's house, along with multiple other

officers, to respond to an incident. Moreover, Holcroft was

aware that the defendant had been arrested for leaving the scene

of an accident after causing property damage.

The defendant continued traveling along several streets

before reaching Mountain Avenue. After driving erratically and

very slowly (approximately ten to twenty miles per hour) for

over one-half mile, the truck turned into an unmarked driveway

and stopped short of a garage attached to a home at the end of

the driveway. Holcroft stopped part way down the driveway with

both his lights and siren activated, got out of his cruiser, ran

to the driver's side of the truck, and knocked on the window.

At this point, he recognized the driver of the truck as the

defendant, and ordered him out of the vehicle. The defendant

ignored Holcroft's order and refused even to make eye contact.

Holcroft noted that a female passenger was seated in the front

of the vehicle.

The garage door at the end of the driveway then began to

rise. Holcroft ordered the defendant to stop and step out of

the vehicle, but the defendant did not comply, and proceeded to

drive the truck into the garage. Holcroft followed the truck on

foot. The defendant drove his vehicle as far into the garage as

possible, and pressed a button on a remote control inside his
 5

truck, causing the garage door to close slowly. In response,

Holcroft wedged a nearby ice pick under the garage door to

prevent it from closing. He then entered the defendant's garage

and approached the driver's side door of the truck. Holcroft

again ordered the defendant out of the vehicle. At this point,

the female passenger got out of the truck and entered the

basement of the home through a doorway connecting the garage to

the house. The defendant, continuing to disobey Holcroft, slid

from the driver's seat to the passenger's seat and began to get

out by the passenger's side door. Holcroft proceeded around the

back of the vehicle with his baton drawn, ordered the defendant

to turn around, and informed him that he was under arrest.

The defendant continued to ignore Holcroft's commands and

instead made a forward motion towards him. Holcroft smelled an

odor of alcohol coming from the defendant, and observed that his

eyes were glassy and bloodshot, his speech was thick and

slurred, and he was very unsteady on his feet. Holcroft

cautioned the defendant that if he did not comply and desist

with his forward movements, Holcroft would spray him with pepper

spray. The defendant continued toward Holcroft. After shoving

the defendant away twice, Holcroft sprayed the defendant once in

the face with pepper spray. The defendant then turned and

stumbled through the doorway into the basement of the home.
 6

After a brief struggle at the basement door, the defendant was

able to shut the door, leaving Holcroft behind in his garage.

Holcroft drew his service weapon and followed after the

defendant. The defendant left his house through a back door in

an attempt to flee and subsequently was apprehended in the

backyard when police backup arrived.

Procedural history. On February 16, 2010, a criminal

complaint issued in the Newburyport Division of the District

Court Department, charging the defendant with operating a

vehicle while under the influence of liquor (OUI), third

offense, in violation of G. L. c. 90, § 24 (1) (a) (1);

resisting arrest, in violation of G. L. c. 268, § 32B; reckless

operation of a motor vehicle, in violation of G. L. c. 90, § 24

(2) (a); failure to stop for police, in violation of G. L.

c. 90, § 25; and a marked lanes violation, in violation of G. L.

c. 89, § 4A. Prior to trial, the defendant filed a motion to

suppress, contending that Holcroft's entry into his garage

constituted an unconstitutional search and seizure. After an

evidentiary hearing, the motion judge denied the defendant's

motion based on the existence of probable cause and several

exigent circumstances, including hot pursuit, risk of flight,

and dissipation of evidence.2 The defendant subsequently moved

2
On appeal we do not consider whether the warrantless entry
was permissible to prevent the dissipation of evidence, as the
 7

for reconsideration, and the judge amended three specific

findings of fact in an amended decision issued in December,

2010.

A two-day jury trial commenced on March 21, 2011. At the

close of the Commonwealth's case, the defendant moved for a

required finding of not guilty, which was denied as to all

counts except reckless operation of a motor vehicle. The

defendant subsequently moved for a required finding of not

guilty at the close of all the evidence. This motion was denied

and the jury found the defendant guilty on all the remaining

counts.

The following day, after a bench trial, the judge found

that the defendant had been convicted of OUI on two prior

occasions, making the instant charge his third offense and

therefore a felony. The defendant filed a timely notice of

appeal in April, 2011, and we transferred the defendant's appeal

to this court on our own motion.

Discussion. On appeal, the defendant argues that the

motion to suppress evidence was wrongly denied, and that the

evidence was insufficient to prove both that he was under the

influence of liquor when arrested and that he had two prior OUI

convictions. We address each argument in turn.

Commonwealth concedes that the facts here do not present a
sufficient basis for such a showing.
 8

1. Suppression motion. When reviewing a motion to

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

absent clear error," but "independently review the judge's

ultimate findings and conclusions of law." Commonwealth v.

Tyree, 455 Mass. 676, 682 (2010), citing Commonwealth v. Colon,

449 Mass. 207, 214 (2007), cert. denied, 552 U.S. 1079 (2007).

"Warrantless entries into the home are prohibited by the

Fourth Amendment to the United States Constitution and art. 14

of the Massachusetts Declaration of Rights absent either

probable cause and exigent circumstances, or consent."

Commonwealth v. Rogers, 444 Mass. 234, 236 (2005). "A variety

of circumstances may give rise to an exigency sufficient to

justify a warrantless search, including law enforcement's need

to . . . engage in 'hot pursuit' of a fleeing suspect."

Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013), citing United

States v. Santana, 427 U.S. 38, 42-43 (1976).3 See Commonwealth

v. Paniaqua, 413 Mass. 796, 797-798 (1992). It is the

Commonwealth's "heavy burden" to establish both the requisite

probable cause and exigent circumstances. See Tyree, 455 Mass.

3
Other exigencies that may justify a warrantless search are
law enforcement's need to provide emergency assistance to an
occupant of a home, see Michigan v. Fisher, 558 U.S. 45, 47
(2009); restrict the risk of a suspect's flight, see
Commonwealth v. Forde, 367 Mass. 798, 807 (1975); and prevent
the imminent destruction of evidence, see Missouri v. McNeely,
133 S. Ct. 1552, 1559 (2013). See Commonwealth v. Skea, 18
Mass. App. Ct. 685, 693 n.12 (1984) (listing warrant requirement
exceptions).
 9

at 684. When asserting an exigency exception, the Commonwealth

must show that it was impracticable for the police to obtain a

warrant, "and the standards as to exigency are strict" (citation

omitted). Id.

a. Probable cause. 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 (1995), quoting Commonwealth v.

Santaliz, 413 Mass. 238, 241 (1992). It "requires more than

mere suspicion but something less than evidence sufficient to

warrant a conviction." Commonwealth v. Hason, 387 Mass. 169,

174 (1982), quoting Brinegar v. United States, 338 U.S. 160,

175-176 (1949). "In dealing with probable cause . . . we deal

with probabilities. These are not technical; they are the

factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act." Id.,

quoting Brinegar, 338 U.S. at 175. Accordingly, "an objective

test is used to determine whether probable cause exists."

Franco, 419 Mass. at 639, citing Hason, 387 Mass. at 175.

Based on the facts and circumstances known to Holcroft at

the time of the warrantless entry, we conclude that he had

probable cause to lawfully arrest the defendant for at least two
 10

offenses, one of which was the jailable misdemeanor of reckless

operation.4 See G. L. c. 90, § 24 (2) (a). Although this crime

does not fall within the ambit of G. L. c. 90, § 21, regarding

arrests in traffic cases, common law permits a police officer to

arrest an individual without a warrant for a misdemeanor if the

individual's actions "(1) [constitute] a breach of the peace,

(2) [are] committed in the presence or view of the officer,

. . . and (3) [are] still continuing at the time of the arrest

or are only interrupted so that the offense and the arrest form

parts of one transaction." Commonwealth v. Howe, 405 Mass. 332,

4
The motion judge found that, at the time of the
warrantless entry, there was probable cause to arrest the
defendant for "failure to stop for a police officer, reckless or
negligent operation of a motor vehicle, and operating a motor
vehicle while under the influence of alcohol." Although
Holcroft arguably had reasonable suspicion to stop the defendant
for an OUI, without having had the opportunity to interact with
him or conduct a threshold inquiry, it is less certain that at
the time of the warrantless entry Holcroft's observations
amounted to probable cause. Compare Commonwealth v. Smigliano,
427 Mass. 490, 491-492 (1998) (officer had reasonable suspicion
to believe defendant was operating vehicle while under influence
where officer observed vehicle swerve and almost hit parked
motor vehicles), with Commonwealth v. O'Hara, 30 Mass. App. Ct.
608, 609-610 (1991) (defendant's erratic driving sufficient to
provide officer with "some reason to believe" defendant was
operating vehicle while under influence, but arrest justified
only after officer made additional observations during stop).
See Commonwealth v. McGrail, 419 Mass. 774, 775-776 (1995),
overruled on another ground by Commonwealth v. Blais, 428 Mass.
294 (1998) (probable cause for OUI where, in addition to seeing
erratic driving, officer observed obvious signs of intoxication
including slurred speech, odor of alcohol on breath, and
bloodshot eyes). In any event, where there was plainly probable
cause to arrest the defendant for reckless operation, we need
not decide this point.
 11

334 (1989), quoting Commonwealth v. Gorman, 288 Mass. 294, 296-

297 (1934). "To find a breach of the peace . . . an act must at

least threaten to have some disturbing effect on the public."

Commonwealth v. Baez, 42 Mass. App. Ct. 565, 570 (1997).

Each of these requirements was present in the instant case.

The defendant's erratic operation and near-collision clearly

occurred in the presence of Holcroft and formed part of the same

transaction as the defendant's ultimate arrest. We have little

doubt that Holcroft had the authority to arrest the defendant on

the ground that erratic driving through public streets, which

nearly results in a collision with a parked motor vehicle,

involves a breach of the peace. This is especially so given

that the defendant's refusal to heed the lights and sirens of

law enforcement, resulting in a chase through a residential

area, undoubtedly created the potential for a disturbing effect

on the public. Compare Commonwealth v. Cavanaugh, 366 Mass.

277, 280-281 (1974) (chase through city streets involved breach

of peace), with Baez, 42 Mass. App. Ct. at 566-570 (1997) (civil

motor vehicle infraction of defective headlight did not

constitute breach of peace).

In order to establish guilt under the reckless operation

statute, "the Commonwealth must prove that the defendant
 12

operated a motor vehicle negligently (or recklessly)5 so as to

endanger the lives or safety of the public 'upon any way or in

any place to which the public has a right of access.'"

Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 34 (2007),

quoting G. L. c. 90, § 24 (2) (a). "The statute only requires

proof that the defendant's conduct might have endangered the

safety of the public, not that it in fact did." Id. at 35. See

Commonwealth v. Constantino, 443 Mass. 521, 526-527 (2005)

("person may operate a vehicle in such a way that would endanger

the public although no other person is on the street").

Moreover, "it is not the duration of negligent operation or the

proximity of the public but 'the operation of the vehicle itself

that is the crime.'" Ferreira, supra at 35, quoting

Constantino, supra at 526.

Here, there was an ample basis for a probable cause

determination of negligent operation. Though the defendant was

not speeding,6 he crossed over the fog line three times and the

double yellow lines once, made wide turns, weaved within his

5
In Commonwealth v. Jones, 382 Mass. 387, 392 (1981), we
recognized "that by custom and usage the element of
'recklessness' has been of little or no significance in the
application of the operating to endanger statute" and,
therefore, "the statutory word 'recklessly' seems to be
surplusage."
6
See Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 35
(2007) ("lack of evidence of continuing excessive speed . . . is
only one factor to be considered when determining whether the
lives of the public could have been endangered").
 13

lane, refused to heed Holcroft's persistent demand to pull over,

and nearly hit a parked automobile while deliberately attempting

to evade law enforcement. These facts demonstrate in several

ways how the defendant's behavior might have endangered the

lives of the public, thereby establishing probable cause for a

negligent or reckless operation charge. See, e.g., Commonwealth

v. Johnson, 413 Mass. 598, 601 (1992) (probable cause for

operating to endanger where speeding vehicle attempted to evade

police and almost hit unmarked vehicle); Ferreira, 70 Mass. App.

Ct. at 33-36 (operating to endanger where, despite no

pedestrians nearby, defendant accelerated in manner that caused

tires to spin, car to "fishtail," and screeching noise);

Commonwealth v. Labelle, 67 Mass. App. Ct. 698, 700-701 (2006)

(operating to endanger where defendant sped through yellow light

at intersection during busy time of day); Commonwealth v. Daley,

66 Mass. App. Ct. 254, 255-256 (2006) (operating to endanger

where defendant erratically crossed lanes, straddled breakdown

lane, and used wipers on clear night).

b. Exigent circumstances. As noted above, hot pursuit of

a fleeing suspect is a well-recognized exception to the warrant

requirement. See Santana, 427 U.S. at 41-43 (warrantless entry

permissible under doctrine of hot pursuit where defendant fled

inside home to avoid arrest for heroin possession with intent to

distribute); Kentucky v. King, 131 S. Ct. 1849, 1856 (2011).
 14

This exception effectuates the principle that "a suspect may not

defeat an arrest which has been set in motion in a public place

. . . by the expedient of escaping to a private place."

Santana, 427 U.S. at 43. Hot pursuit does not require a high

speed race or a trail of police cruisers in fast pursuit of a

suspect. See id. ("it need not be an extended hue and cry in

and about [the] public streets" [quotations omitted]). Rather,

it merely means "some sort of a chase." Id.

Although it is well settled that a State may develop its

own law of search and seizure so long as it does not run afoul

of the prohibitions of the Fourth Amendment, see Commonwealth v.

Matthews, 355 Mass. 378, 380-381 (1969), "[F]ederal and [S]tate

courts nationwide are sharply divided on the question whether an

officer with probable cause to arrest a suspect for a

misdemeanor may enter a home without a warrant while in hot

pursuit of that suspect." Stanton v. Sims, 134 S. Ct. 3, 5

(2013). The defendant argues that the hot pursuit exception

does not apply to "minor crimes," and because the crimes he was

suspected of committing at the time of the warrantless entry

were not felonies, he contends that Holcroft's entry into his

garage was not permissible. We find this argument unpersuasive.

The hot pursuit exception has never explicitly been limited

to felonies under either the Fourth Amendment or art. 14. See

Stanton, 134 S. Ct. at 6 ("though Santana [427 U.S.] involved a
 15

felony suspect," Supreme Court "did not expressly limit [the]

holding based on that fact"). The defendant grounds much of his

argument in the subsequent United States Supreme Court case of

Welsh v. Wisconsin, 466 U.S. 740, 746 n.6, 754 (1984) (defendant

arrested for OUI but no incarceration possible for first OUI

offense under Wisconsin law ), which explained that an "extremely

minor" offense cannot give rise to a constitutional exigency for

a warrantless entry. Welsh is readily distinguishable from the

instant case for at least two reasons. First, the Supreme Court

explicitly noted that the doctrine of hot pursuit did not apply

as "there was no immediate or continuous pursuit of the

petitioner from the scene of a crime." Id. at 753. See

Commonwealth v. DiGeronimo, 38 Mass. App. Ct. 714 (1995) (hot

pursuit not implicated). Second, although undoubtedly "more

than a minor crime must be involved to justify the warrantless

intrusion into a private residence," Commonwealth v. Kirschner,

67 Mass. App. Ct. 836, 842-843 (2006), Welsh did not conclude

that all misdemeanors are minor offenses, but rather only that

nonjailable offenses are considered such. See Welsh, 466 U.S.

at 754.

Therefore, Welsh is not inconsistent with Santana.7 Taken

together, these cases stand for the proposition that police may

7
An errant string cite in Welsh v. Wisconsin, 466 U.S. 740,
750 (1984) incorrectly characterized the holding of United
 16

not make a hot pursuit warrantless entry into a residence of a

person who is suspected of committing only a minor offense.

Felonies, such as the one committed in Santana, 427 U.S. at 41-

43, are not minor offenses, but nonjailable misdemeanors, such

as the one at issue in Welsh, are properly considered to be

minor. See Welsh, 466 U.S. at 754. See also Kirschner, 67

Mass. App. Ct. at 842-843 (hot pursuit not implicated and

warrantless entry impermissible where crime was possession of

fireworks punishable only by fine); Commonwealth v. Kiser, 48

Mass. App. Ct. 647, 649-651 (2000) (same, for nonjailable

"extremely minor" offense of playing loud music).

Here, however, the defendant was not suspected of

committing a minor offense, but one which was punishable by

imprisonment of up to two years. The defendant incorrectly

cites Welsh and Kirschner for the proposition that every

misdemeanor necessarily falls into the category of "minor

offense," and therefore may never form the basis of a hot

pursuit exigency. Neither case so held. The prohibition in

Welsh of warrantless entry for a minor offense did not embrace

all misdemeanors. See Welsh, 466 U.S. at 761 (White, J.,

dissenting) (noting majority did not draw "a bright-line

distinction between felonies and other crimes"); Gasset v.

States v. Santana, 427 U.S. 38, 42-43 (1976), as permitting "hot
pursuit of a fleeing felon," rather than a fleeing "suspect"
(emphases added).
 17

State, 490 So. 2d 97, 98-99 (Fla. Dist. Ct. App. 1986). In

Joyce v. Tewksbury, 112 F.3d 19, 22 (1st Cir. 1997), the United

States Court of Appeals for the First Circuit emphasized the

very limited sweep of Welsh in stating that "the fact that

Massachusetts classifies the alleged violation here as a

misdemeanor does not reduce it to a 'minor offense.'" Moreover,

in Stanton, 134 S. Ct. at 6, the Supreme Court clarified that

Welsh did not hold that a "warrantless entry to arrest a

misdemeanant is never justified," but rather that such entries

"should be rare." We conclude that hot pursuit of an individual

suspected of committing a jailable misdemeanor such as in this

case is permissible.

Other States have similarly recognized that jailable

misdemeanors are not minor offenses under Welsh. See, e.g.,

People v. Thompson, 38 Cal. 4th 811, 821, cert. denied, 549 U.S.

980 (2006) (jailable misdemeanor "not an 'extremely minor'

offense within the meaning of Welsh"); Peoples v. Wehmas, 246

P.3d 642, 648 (Colo. 2011) (jailable misdemeanor "sufficiently

grave offense such that warrantless home entry may be valid");

Dyer v. State, 680 So. 2d 612, 613 (Fla. Dist. Ct. App. 1996)

(jailable misdemeanor is "classified as a much more serious

offense than [the one] in Welsh"), and that an officer may make

a warrantless entry to arrest when such crimes are committed in

their presence and they remain in hot pursuit of the suspect.
 18

See, e.g., Gasset, 490 So. 2d at 98-99 (warrantless entry

justified where police pursued speeding motorist directly into

garage, as offense was punishable by imprisonment and

enforcement of serious traffic violations "is not a game where

law enforcement officers are 'it' and one is 'safe' if one

reaches 'home' before being tagged"); State v. Keenan, 325 P.3d

1192, 1200, 1202 (Kan. Ct. App. 2014) (officer in hot pursuit of

person suspected of jailable misdemeanor may make warrantless

entry into suspect's home); State v. Paul, 548 N.W.2d 260, 264-

268 (Minn. 1996) (same).

Establishing a bright-line rule prohibiting the warrantless

entry of a home when the underlying offense is of lesser

magnitude than a felony would send an unacceptable message to

the defendant who "drinks and drives that a hot pursuit or an

arrest set in motion can be thwarted by beating police to one's

door." Paul, 548 N.W.2d at 268. We decline to adopt such a

rule, which runs directly counter to sound public policy. "Law

enforcement is not a child's game of prisoners base, or a

contest, with apprehension and conviction depending upon whether

the officer or defendant is the fleetest of foot." State v.

Ricci, 144 N.H. 241, 245 (1999), quoting State v. Blake, 468

N.E.2d 548, 553 (Ind. Ct. App. 1984). Moreover, such a

categorical distinction would arbitrarily permit perpetrators of

serious misdemeanors "to avoid punishment merely because of how
 19

the legislature had labelled an infraction." Paul, 548 N.W.2d

at 267. Rather, limiting the hot pursuit exception to felonies

and jailable misdemeanors appropriately balances the

constitutional protections of both the Fourth Amendment and

art. 14 with society's interest in apprehending individuals

suspected of serious crimes.

Accordingly, Holcroft's actions in entering the defendant's

garage to effectuate the arrest were lawful. At the time of the

warrantless entry he was clearly in hot pursuit of the defendant

and the defendant was aware of this. Although Holcroft

attempted to effectuate a threshold inquiry and set an arrest in

motion for a jailable misdemeanor in a public setting multiple

times, the defendant did not comply with his demands and fled to

his home in an attempt to frustrate the arrest.8

8
The defendant also attempts to argue that hot pursuit is
not an exigency unto itself where the underlying crime is not
felonious, but rather additional factors, such as the crime
being violent or the suspect being armed, must be satisfied in
order to justify a warrantless entry. We disagree with this
contention. The Supreme Court in Santana "did not refer to hot
pursuit as only one factor among others." People v. Wear, 371
Ill. App. 3d 517, 537 (2007), aff'd, 229 Ill. 2d 545 (2008).
Rather, "[m]ost courts appear to take Santana's holding at face
value, treating hot pursuit as an exception unto itself rather
than as just another factor." Id. See, e.g., People v. Lloyd,
216 Cal. App. 3d 1425, 1429 (1989), cert. denied, 497 U.S. 1026
(1990) ("officer's 'hot pursuit' into the house to prevent the
suspect from frustrating the arrest which had been set in motion
in a public place constitutes a proper exception to the warrant
requirement"); State v. Blake, 468 N.E.2d 548, 553 (Ind. Ct.
App. 1984) ("immediate and continuous pursuit from the scene of
the crime formed the exigent circumstance"); State v. Bell, 28
 20

2. Sufficiency of the evidence. The defendant contends

that the evidence was insufficient to establish both the

underlying OUI charge as well as his two prior convictions.

When reviewing a claim as to the sufficiency of the evidence we

consider "whether the evidence, in its light most favorable to

the Commonwealth, notwithstanding the contrary evidence

presented by the defendant, is sufficient . . . to permit the

jury to infer the existence of the essential elements of the

crime charged" (citation omitted). Commonwealth v. Latimore,

378 Mass. 671, 676-677 (1979). "Additionally, the evidence and

the inferences permitted to be drawn therefrom must be of

sufficient force to bring minds of ordinary intelligence and

sagacity to the persuasion of (guilt) beyond a reasonable doubt"

(quotation and citation omitted). Id. at 677.

a. Underlying OUI. In order to be convicted of an OUI,

the Commonwealth must prove beyond a reasonable doubt that the

defendant (1) operated a motor vehicle, (2) on a public way, (3)

while under the influence of intoxicating liquor. G. L. c. 90,

So. 3d 502, 508-510 (La. Ct. App. 2009) (recognizing exigent
circumstances inherent in hot pursuit); Winter v. State, 902
S.W.2d 571, 573 (Tex. Ct. App. 1995) ("Court has found that
exigent circumstances exist when the police are in 'hot pursuit'
of a suspect"). Essentially, hot pursuit, in and of itself, is
sufficient to justify a warrantless entry. Santana, 427 U.S. at
42-43. See Commonwealth v. Molina, 439 Mass. 206, 210-211
(2003) (intimating that no warrant needed if "officers were in
hot pursuit of a fleeing suspect in the immediate aftermath of a
crime" without mention of additional exigencies).
 21

§ 24 (1) (a) (1). The defendant and the Commonwealth stipulated

that the defendant was operating a motor vehicle and that he was

operating it on a public way. To establish that the defendant

was under the influence, "[t]he Commonwealth need not prove that

the defendant actually drove in an unsafe or erratic manner, but

it must prove a diminished capacity to operate safely" (emphasis

omitted). Commonwealth v. Connolly, 394 Mass. 169, 173 (1985).

Here, the defendant bore many of the classic indicia of

impairment. He was seen departing from a bar late in the

evening, and, once in his vehicle, he drove erratically, weaved

and crossed lane markings, made overly wide turns, nearly struck

a parked vehicle, and refused to comply with police demands to

stop. See Commonwealth v. Sauer, 50 Mass. App. Ct. 299, 303

(2000) (defendant's visit to bar and erratic driving evidence to

support OUI conviction). Additionally, given that Holcroft's

warrantless entry was lawful, his observations of the defendant

once inside the garage are admissible and the Commonwealth

appropriately relied on them at trial. Holcroft testified that

the defendant was unsteady on his feet, had bloodshot and glassy

eyes, smelled of alcohol, and slurred his words. See

Commonwealth v. Bryer, 398 Mass. 9, 10-11 (1986) (unsteadiness

and odor of alcohol are factors that support inference of

diminished capacity to operate safely due to intoxication);

Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011)
 22

(poor balance and glassy, bloodshot eyes are evidence of

intoxication); Sauer, supra (unsteadiness is evidence of

intoxication); Commonwealth v. Shabo, 47 Mass. App. Ct. 923, 924

(1999) (smell of alcohol and slurred speech support finding of

intoxication).

Additionally, after the defendant fled his home he

attempted to hide behind a small tree and fought with

apprehending officers (and then fell asleep and snored during

booking). See Commonwealth v. Sudderth, 37 Mass. App. Ct. 317,

318, 321 (1994) (belligerence is evidence of intoxication).

This evidence was sufficient to withstand a motion for a

required finding of not guilty and adequately supports a

determination that the defendant was under the influence of

alcohol at the time he operated his vehicle.

b. Third offense. The defendant contends that the two

docket sheets introduced in evidence were insufficient to prove

beyond a reasonable doubt that the defendant was convicted of

two prior OUI offenses. Thus, the defendant claims that there

was insufficient evidence to sustain his conviction of a third

OUI offense. For the reasons stated below, we disagree.

The sufficiency of docket sheets as evidence of prior

convictions is well settled in the Commonwealth, see, e.g.,

G. L. c. 90, § 24 (4); Commonwealth v. Dussault, 71 Mass. App.

Ct. 542, 546 (2008) (certified copies of original court papers
 23

prima facie evidence that defendant previously convicted).

Although docket sheets that simply identify a name are not

sufficient to prove that past convictions are those of a

defendant, see Commonwealth v. Koney, 421 Mass. 295, 302 (1995),

documents that "include more identifying information than merely

the offender's name" (citation omitted) can be sufficient to

satisfy the Commonwealth's burden. Commonwealth v. Gonsalves,

74 Mass. App. Ct. 910, 912 (2009). See, e.g., Commonwealth v.

Bowden, 447 Mass. 593, 602 (2006); Dussault, supra at 547

(records matching defendant's full name, date of birth, town of

residence, and two addresses associated with defendant's name,

coupled with judicial notice of unusual surname, sufficient).

The Commonwealth advances an argument only for the

sufficiency of the docket sheet documenting the second

conviction, as that is all that is necessary to establish that

the present conviction was the defendant's third.9 See Bowden,

447 Mass. at 599 ("judgment of conviction for a third offense

may appropriately be relied on to establish culpability for the

first two offenses."). The defendant claims that the second

docket sheet only reflects his name, date of birth, and an

address that is no longer his place of residence, and, relying

9
The defendant points out that the person named on the
criminal docket for the second offense received a first offense
disposition. However, the docket shows the defendant was
charged with OUI, second offense, and the attached order of
probation conditions lists a disposition of "OUI 2."
 24

in part on an unpublished opinion of the Appeals Court, argues

that this information is insufficient. We disagree.

The docket sheets for the second offense bore the same

first name, unusual surname, middle initial, and date of birth

as the defendant's driver's license. See Dussault, 71 Mass.

App. Ct. at 547. Although the address listed on the docket was

a different local address than the one appearing on the

defendant's license, the certified copy of the "Order of

Probation Conditions" for this offense was signed the same day

as the conviction and identified the defendant by the address

that appeared on his license (and matched all the other personal

information from the criminal docket). Accordingly, the

complete set of records for the OUI second offense conviction

matched the defendant's full name, address, and date of birth.

See Gonsalves, 74 Mass. App. Ct. at 912; Dussault, supra at 547.

Viewing such evidence in the light most favorable to the

Commonwealth, we are persuaded that it provides a satisfactory

connection between the defendant and the individual who was

convicted of OUI, second offense, and is therefore sufficient to

uphold the defendant's conviction of OUI, third offense.

Judgments affirmed.