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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Ceria, 13 Mass.App.Ct. 230 (1982)
Appeals Court of Massachusetts,
Argued
Decided
Kirk Y. Griffin,
Robert A. Marra, Jr., Legal Asst. to the Dist.
Atty., Revere (Peter Grabler, Asst. Dist. Atty., with him) for the
Commonwealth.
Before GOODMAN, CUTTER and GREANEY, JJ.
GREANEY, Justice.
After a
trial before a jury in the Superior Court, Ceria was convicted on four
indictments charging [13
Mass.App.Ct. 231] him with the knife
point assault and rape of two women.
Prior to trial, he moved to suppress the victims' identifications on the
grounds (1) that his arrest on unrelated charges which led to the
identifications was not based on probable cause; (2) that this arrest was
merely a pretext for obtaining his photograph for investigation of the sex
crimes; and (3) that the identifications made at the probable cause hearing
were unduly suggestive. After hearing,
the motion was denied. We find no error.
The judge
made detailed findings of fact which the defendant does not challenge. We summarize those findings. Prior to
On
Shortly
after the surveillance was established, Officer Dean observed a woman jogging
in the vicinity of the Longfellow bridge, followed closely by a man on an
orange moped who resembled the composite sketch. While Dean advised White of the situation,
Powers approached the moped on foot, identified himself in a loud voice as a
police officer, and asked the operator to stop.
The operator (the defendant) shut out his lights and immediately
"took off" at approximately thirty to thirty‑five miles per
hour. With [13 Mass.App.Ct. 232]
both police vehicles in pursuit, the defendant reached Storrow Drive and cut
diagonally across it, nearly causing an accident as oncoming automobiles braked
and swerved to avoid him. He proceeded
down a street, and then returned to
The
defendant gave the officers his correct name and address but indicated that he
did not have a license to operate the moped.
When asked about its ownership, the defendant stated "first that he
was the owner, then indicated that his father was the owner, then his guardian,
then his foster father." The judge
found that, at this juncture the officers "were reasonably confused by
what ... were apparently evasive answers.
They cited Ceria for operating to endanger and operating without a
license (and) ... then arrested (him) for the cited offenses and for larceny of
over $100 of the moped from (a) person or persons unknown."
The
defendant was booked on these charges at the
The next
morning the defendant's photograph was inserted in an array by the detective in
charge of the rape investigations, and the array was shown to the two victims
in these cases. This procedure, which
has not been challenged as suggestive, led to the defendant's positive
identification by both victims. The
present charges followed. (FN2)
[13 Mass.App.Ct. 233] 1. The defendant's motion to suppress
the photographic identification turns on the validity of the arrest pursuant to
which his photograph was taken. The
parties apparently agree that the defendant could not lawfully have been
arrested for two of the offenses then charged.
(FN3) The motion judge
*611 ruled that the defendant
had lawfully been arrested on the third charge, larceny of the moped. Accepting the judge's findings of fact as
having adequate support in the record, the defendant nevertheless contends that
the police [13 Mass.App.Ct. 234] did not have probable cause to make
an arrest for larceny. We disagree.
[1][2]
The facts known to the officers when they first approached the defendant
justified stopping him to inquire about his activity in the area.
*612
[3][4] 2. As his second point, the defendant contends that the arrest
was "pretextual and conducted with the sole purpose of obtaining evidence
to aid in the investigation of the Esplanade assaults." The legitimacy of an arrest for one offense
ordinarily will not depend on whether the officer subjectively believed that
the arrest might lead to incriminating information regarding another offense. Rather, police conduct is to be judged
"under a standard of objective reasonableness without regard to the
underlying intent or motivation of the officers involved." Scott v.
The
reasons underlying this view were succinctly stated in the First Circuit's
opinion in United States v. McCambridge, 551 F.2d 865, 870 (1st Cir. 1977):
"The validity of an arrest is normally gauged by an objective standard
rather than by inquiry into the officer's presumed motives. If this were not so, an arrest's validity
could not be settled until long after the event; it would depend not only on
the psychology of the arresting officer but the psychology of the
judge." (FN4) See also United States v. Miller, 589 F.2d
1117, 1128 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59
L.Ed.2d 771 (1979).
[13 Mass.App.Ct. 236] While "we do not say that there
could never be an egregious situation where an arrest on purely colorable
grounds might be held invalid as 'pretextual' " (United States v.
McCambridge, supra at 870; see e.g. Taglavore v. United States, 291 F.2d 262,
265 (9th Cir. 1961); Amador‑Gonzalez v. United States, 391 F.2d 308, 314‑315
(5th Cir. 1968) ), the demonstrated existence of probable cause to arrest Ceria
for larceny seals this arrest off from further attack on its underlying
motivations. (FN5) See Commonwealth v. Walker, 370 Mass. 548,
560, 350 N.E.2d 678 (1976), cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50
L.Ed.2d 314 (1976), and cases cited.
[5] 3.
The defendant's last point is that his identification by the victims at the
probable cause hearing in the Boston Municipal Court was "unnecessarily
suggestive" because the judge would not permit the identifications to be
made by way of an in‑court lineup.
This, he claims, tainted the identifications made at the trial. The defendant had been ordered to be present
that day, so that the hearing could go forward.
Defense counsel had spoken to the prosecutor, and they had informally
agreed that the defendant would be kept away from the courtroom until an oral
request for a lineup could be made. The
judge, however, took the position that the defendant had been ordered to be in
court that day and could not absent himself without leave of court;
*613. that there had been sufficient time to file a written motion
for an alternative identification procedure; and that efforts to arrange such a
procedure would delay the hearing and perhaps disrupt other cases to be heard
that day.
[13 Mass.App.Ct. 237] The probable cause hearing was a
critical stage of the proceedings which would require the defendant's presence
(see Commonwealth v. Britt, 362 Mass. 325, 330‑331, 285 N.E.2d 780
(1972); see now Mass.R.Crim.P. 18(a), 378 Mass. 887 (1979) ), unless excused by
express order of the court. The
defendant's request was of the sort which required a written motion stating the
grounds therefor with specific supporting reasons. See now Mass.R.Crim.P. 13(a) and (b), 378
Mass. 871‑872 (1979). Moreover,
"(C)ounsel has a responsibility to be alert and, as far as he thinks
necessary or useful, to try to eliminate any suggestive influence; thus he may
move in advance to have the defendant seated amid the courtroom audience or for
a lineup." Commonwealth v.
Cincotta, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
Mass.Adv.Sh. (1979) 2671, 2675, 398
N.E.2d 478 (emphasis added). Since there
is no constitutional mandate for these procedures (Commonwealth v. Dickerson,
372 Mass. 783, 791, 364 N.E.2d 1052 (1977); Commonwealth v. Wheeler, 3
Mass.App. 387, 390‑391, 331 N.E.2d 815 (1975) ), the disposition of any
such motion rests in the sound discretion of the judge. Commonwealth v. Jones, 362 Mass. 497, 501,
287 N.E.2d 599 (1972); Commonwealth v. Pearsall, 370 Mass. 413, 415, 348 N.E.2d
428 (1976). In view of the lack of a
proper motion, the timing of the request, the prior order expressly requiring
the defendant's presence, and the potential for disrupting the proceedings, the
judge's action did not constitute an abuse of discretion. See Commonwealth v. Cincotta, supra, ‑‑‑
Mass. at ‑‑‑ ‑ ‑‑‑, Mass.Adv.Sh. at
2675‑2676, 398 N.E.2d 478.
Judgments
affirmed.
FN1. The Esplanade is a park
and recreational area located on the banks of the Charles River near downtown
Boston.
FN2. The original charges for operating without a
license, operating to endanger and larceny were ultimately dropped.
FN3. In the parties' view, a person driving a moped
cannot be arrested for operating without a license (G.L. c. 90, s 1B, inserted
by St.1976, c. 261, s 4) or for operating to endanger (G.L. c. 90, s
24(2)(a)). This view is based on the
fact that G.L. c. 90, s 1, as amended by St.1976, c. 261, ss 2, 3, now defines
a "motorized bicycle," and specifically excludes such vehicles from
the definition of "motor vehicles" as used throughout the
chapter. This may not be an entirely
correct interpretation of the law.
General Laws c. 90, s 1B, requires that a "motorized bicycle shall
not be operated on any way by any person not possessing a valid driver's
license or learner's permit," and the statute renders the operation of
motorized bicycles on public ways "subject to the traffic laws and
regulations of the commonwealth."
Under G.L. c. 90, s 21, a police officer may arrest anyone operating a
motor vehicle on a public way who does not have a license so to operate in his
possession. The language of ss 1B and 21
would not authorize the defendant's arrest for operating without a
license. It has been held, however, that
s 21 "does not by implication cut down the common law authority of an
officer" to arrest. Commonwealth v.
Gorman, 288
*613_ We pass the question,
however, since the defendant's arrest for larceny (as will be next discussed)
was proper. Any mistaken subjective
impressions by the officers about their right to arrest for the vehicular
offenses are therefore not critical since the determination of the validity of
an arrest "is governed by an objective standard," Commonwealth v.
Avery, 365 Mass. 59, 65, 309 N.E.2d 497 (1974), and cases cited, not by the
"articulation of the policeman's subjective theory." Commonwealth v. Miller, 366 Mass. 387, 389,
318 N.E.2d 909 (1974), quoting from White v. United States, 448 F.2d 250, 254
(8th Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798
(1972). See also Commonwealth v. Colitz,
13 Mass.App. 215, 223‑224, ‑‑‑ N.E.2d ‑‑‑
(1982), and cases cited.
FN4. In United States v.
Arra, 630 F.2d 836, 845 n.12 (1st Cir. 1980), the First Circuit elaborated upon
the policy against such inquiry in these terms: "The problem with
defendant's approach (questioning an otherwise valid search as pretextual) is
both the premium it would place on dissemblance and the difficulty of
administering a standard which turns upon motivation. Motivation is a 'self‑generating
phenomenon.' Amsterdam, 'Perspective on
the Fourth Amendment,' 58 Minn.L.Rev. 349, 437 (1974). As law enforcement personnel learn that a
particular motivation is improper because it will render an otherwise valid
search invalid, they may not have difficulty convincing themselves that their
conduct was prompted not by the improper reason but by the proper one, see
discussion in 2. W. LaFave, Search and Seizure 284‑285 (1978), and
oftentimes it may be little more than guesswork for a court to determine what
the true motivation was."
FN5. This case bears no resemblance to