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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Grise, 398
Supreme Judicial Court of Massachusetts,
Hampden.
No. Hd‑4130.
Argued
Decided
Ariane D. Vuono,
Asst. Dist. Atty., for Com.
Vincent A. Bongiorni,
Before HENNESSEY, C.J.,
and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.
HENNESSEY, Chief Judge.
The
question of first impression presented by this case is whether a police officer
lawfully may arrest a motorist for operating under the influence of intoxicating
liquor, G.L. c. 90, § 24 (1984 ed.), outside of the
officer's territorial jurisdiction, where the arresting officer was not in
"fresh and continued pursuit" of the motorist. G.L. c. 41, § 98A
(1984 ed.).
[398
On May 20,
1985, the defendant filed a motion to dismiss the complaint on the ground that
his arrest occurred outside of the territorial jurisdiction of the arresting
officer. (FN1) The judge allowed the defendant's motion to
dismiss, ruling that (1) Officer Crandell was outside
of his jurisdiction and not in "fresh and continued pursuit" of the
defendant at the time of making the arrest, G.L. c.
41, § 98A, and therefore was acting as a private citizen; and (2) a private citizen has no authority to
arrest for traffic violations or for operating under the influence of
intoxicating liquor. The Commonwealth
appealed this dismissal, Mass. R. Crim. P. 15 (a)(1),
378 Mass. 882 (1979), and we transferred the case here on our own motion. We affirm.
[398 Mass. 249] [1] When executing a warrant of arrest, a police officer's power
is State‑wide. G.L.
c. 41, §§ 95, 98 (1984 ed.). Commonwealth v. Martin, 98 Mass. 4
(1867). However, the power of a police
officer at common law to make an arrest without a warrant is limited to the
boundaries of the governmental unit by which he was appointed, unless the
police officer is acting in fresh and continued pursuit of a suspected felon
who has committed an offense in the officer's presence and within his
territorial jurisdiction. (FN2)
Commonwealth v. Harris, 11 Mass.App.Ct.
165, 168, 415 N.E.2d 216 (1981). See K.B. Smith, Criminal Practice and Procedure § 100
(1983); 5 Am.Jur.2d Arrest § 50 (Supp.
1985); Rep.A.G.Pub.Doc. No. 12, at 136‑137
(1967). In 1967, the Legislature
broadened this common law rule by allowing extra‑territorial "fresh
pursuit" arrests for any offense, felony, or misdemeanor, committed in the
arresting officer's presence and within his jurisdiction. G.L. c. 41, § 98A,
inserted by St. 1967, c. 263. (FN3) This statute empowers a police [398 Mass. 250] officer
to make a warrantless, extra‑territorial arrest
of a suspect who is being pursued into a neighboring town. However, G.L. c.
41, § 98A, does not validate the arrest in this case, since the Ludlow police
officer's observation, pursuit, and arrest of the defendant all occurred in
Springfield.
[2] When a
police officer makes a warrantless arrest outside of
his jurisdiction, and not in "fresh and continued pursuit" of the
suspect within the meaning of G.L. c. 41, § 98A, then
he acts as a private citizen, and the arrest will be held valid only if a
private citizen would be justified in making the arrest under the same
circumstances. Commonwealth v. Gullick,
386 Mass. 278, 282, 435 N.E.2d 348 (1982) (Massachusetts State trooper lawfully
arrested felon in New Hampshire). Commonwealth v. Harris, supra, 11 Mass.App.Ct. at 168‑170, 415 N.E.2d 216 (Revere
police officers lawfully arrested suspected felon in Chelsea). When police officers leave their jurisdiction
"they cease[ ] to be officers but they d[o] not cease to be persons." Id. Thus the critical issue is whether a private
citizen would have been authorized to arrest the defendant in the circumstances
of this case.
[3] In
Massachusetts a private citizen may lawfully arrest someone who has in fact
committed a felony. Commonwealth v. Lussier,
333 Mass. 83, 92, 128 N.E.2d 569 (1955). Commonwealth v. Colitz,
13 Mass. App. Ct. 215, 220, 431 N.E.2d 600 (1982). However, operating a motor vehicle while
under the influence of liquor is a misdemeanor.
See G.L. c. 90, § 24; G.L. c. 274, § 1
(1984 ed.). This court has never
squarely addressed the issue of a private person's power to arrest for a
misdemeanor. (FN4) The Commonwealth[398 Mass. 251] urges us to adopt a rule which would allow a
private person, like a police officer, to arrest a suspect for a misdemeanor
amounting to a breach of the peace which is committed in the arresting person's
presence. (FN5) This was the rule at common law in
England. See Timothy v. Simpson, 1 Crompton M. &
R. 757, 762‑763 (1835); 10 Halsbury's Laws of England at 343 (1955);
Carroll v. United States, 267 U.S. 132, 157, 45 S.Ct.
280, 286, 69 L.Ed. 543 (1925). Numerous jurisdictions in this country allow
for such arrests. See Cal. Penal Code §
837 (Deering 1983);
Me. Rev.Stat.Ann.
tit. 17‑A, § 16 (1964); Minn.
Stat. § 629.37 (Supp. 1985); Miss. Code Ann. § 99‑3‑7
(1972); S.D. Codified Laws Ann. § 23A‑3‑3
(1979). However, other jurisdictions
limit a private person's power of arrest to felonies. See Ark. Stat. Ann. § 43‑404 (1977); Mich. Comp.Laws §
764.16 (1979); Ohio Rev. Code Ann. §
2935.04 (Baldwin 1979); Schachter v. State,
338 So.2d 269 (Fla. Dist. Ct. App. 1976).
In the absence of legislative direction, we believe the latter approach
to be more sound. Although the
Commonwealth advances strong arguments in favor of allowing a private person to
abate or prevent a disruption of the peace, there are equally compelling policy
reasons for limiting such powers of arrest to police officers. Since "breach of the peace" may be
construed by laymen as a somewhat elastic concept, empowering private persons to
arrest for such misdemeanors might only encourage "vigilantism and
anarchistic actions." See Commonwealth v. Klein, 372 Mass. 823,
829, 363 N.E.2d 1313 (1977) (discussing citizen's privilege to use deadly force
in preventing escape of felons).
[398 Mass. 252] [4] In addition, it is clear from the provisions of our statutes
relating to motor vehicle offenses that the Legislature did not intend to
authorize a citizen's arrest for operating under the influence of intoxicating
liquor. General Laws c. 90, § 21 (1984
ed. & Supp. 1985), authorizes police officers to make warrantless
arrests for this crime, subject to the specific requirement that "such
officer is in uniform or conspicuously displaying his badge of office." Id. One of the obvious purposes of requiring a
police officer to make known his authority for stopping a vehicle is to reduce
the fear or anxiety which a driver might otherwise experience. This purpose would be defeated if the power
to arrest for operating under the influence of intoxicating liquor were
bestowed upon private individuals. Also,
G.L. c. 90C, § 4 (1984 ed. & Supp. 1985), allows
"a person other than a police officer" to apply "for a criminal
complaint for an automobile law violation ... and such person need not show
that the alleged violator has been issued a citation in connection with such
violation." Id.
Although not conclusive, this section suggests that the Legislature's
preferred method of dealing with personal grievances regarding motor vehicle
violations is through application for a criminal complaint, and not through
private arrest.
We
recognize the strong public policy in this Commonwealth against drunk driving,
and the necessity for removing intoxicated motorists from the roads before they
harm themselves or other persons. See Commonwealth v. Trumble,
396 Mass. 81, 86‑87, 483 N.E.2d 1102 (1985). We also appreciate that these interests might
best be served by allowing police officers to apprehend intoxicated motorists
outside of the officers' territorial jurisdictions. However, we decline to reach this result
through the circuitous route of empowering private persons to arrest for
misdemeanors involving a breach of the peace.
If the Legislature in its wisdom wishes to broaden the powers of police
officers acting outside of their territorial jurisdictions, it may amend G.L. c. 41, § 98A, to accomplish this purpose. (FN6)
[398 Mass. 253] The judge was correct in ruling that the arrest of the defendant
was unlawful. We add a comment as to a
point which neither the judge nor the parties addressed: that it does not follow ineluctably from the
unlawful arrest of the defendant that the complaint against him must be
dismissed. Rather, the inquiry in such a
case ordinarily should determine what, if any, evidence should be suppressed as
a result of the unlawful arrest. Cf. Wong Sun v. United States, 371 U.S.
471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963)
(evidence excluded under "fruit of poisonous tree" doctrine where
arrest violated Fourth Amendment). In
this case, however, it is palpably clear that evidence that the defendant was
under the influence of intoxicating liquor would not have been obtained but for
the arrest, and that the defendant thus was irretrievably prejudiced by the
unlawful arrest. (FN7) See
Commonwealth v. Andrade, 389 Mass. 874, 879‑880, 453 N.E.2d 415
(1983). Therefore, the judge's order of
dismissal is affirmed.
So ordered.
(FN1.) The defendant also filed a motion to
suppress evidence obtained as a result of the allegedly unlawful arrest. No action was taken on this motion due to the
judge's dismissal of the complaint against the defendant. See our comments in the concluding paragraph
of this opinion as to this choice of action by the judge.
(FN2.)
We must distinguish the issue of a police officer's territorial power to make
an arrest (the critical question in this case) from the issue of those offenses
for which an officer may arrest a criminal suspect without a warrant.
A police
officer otherwise empowered to make
an arrest, may arrest without a warrant any person who he has reasonable cause
to believe has committed a felony. See Commonwealth v. Hason,
387 Mass. 169, 173, 439 N.E.2d 251 (1982); Commonwealth v. Holmes, 344 Mass. 524,
525, 183 N.E.2d 279 (1962). In the
absence of statutory authority (see, e.g., G.L. c.
276,§ 28 [1984 ed.] ), a police officer may arrest without a warrant a person
suspected of committing a misdemeanor only where the misdemeanor involves a
breach of the peace committed in the officer's presence. See
Muniz v. Mehlman, 327 Mass. 353, 356‑357,
99 N.E.2d 37 (1951).
We
may presume that, but for the jurisdictional issue, Officer Crandell
acted within his authority in arresting the defendant without a warrant. See
Commonwealth v. Gorman, 288 Mass. 294, 298‑299, 192 N.E. 618 (1934)
(operating a motor vehicle under the influence of intoxicating liquor is an
offense involving a breach of the peace);
G.L. c. 90, § 21 (1984 ed. & Supp. 1985)
(expressly authorizing warrantless arrest for
operating under the influence of intoxicating liquor).
(FN3.)
General Laws c. 41, § 98A, provides as follows:
"A police officer of a city or town who is empowered to make
arrests within a city or town may, on fresh and continued pursuit, exercise
such authority in any other city or town for any offense committed in his
presence within his jurisdiction for which he would have the right to arrest
within his jurisdiction without a warrant.
Said officer may return any person so arrested to the jurisdiction
wherein said offence was committed.
Nothing contained in this section shall be construed as limiting the
powers of a police officer to make arrests and in so far as possible this
section shall be deemed to be declaratory of the common law of the
Commonwealth."
(FN4.) In
McDermott v. W.T. Grant Co., 313 Mass. 736, 738,
49 N.E.2d 115 (1943), relied on by the Commonwealth, we upheld a tort judgment
against the defendant retail store for false arrest. Without directly addressing the circumstances
in which the manager of the store could lawfully arrest the plaintiff, we
simply stated that "no such right exists where no offense is committed in
the presence of one who makes the arrest." Id. at 738, 49 N.E.2d
115. See G.L.
c. 231, § 94B (1984 ed. & Supp. 1985) (providing merchant with defense in
action for false arrest if customer detained in a reasonable manner and for a
reasonable time).
(FN5.) The Commonwealth concedes that such a
rule would lead to a somewhat anomalous result.
Private persons who arrest for a felony may justify their actions in a
claim for false arrest only by showing that the crime was "in fact ...
committed." Commonwealth v. Lussier,
333 Mass. 83, 92, 128 N.E.2d 569 (1955). Pilos v. First
Nat'l Stores, Inc., 319 Mass. 475, 478, 66 N.E.2d 576 (1946). However, a private person empowered to
arrest, for breach of the peace would avoid liability on a mere showing of
probable cause. See G.L.
c. 231, § 94A (1984 ed.) (providing a
defense to an action for false arrest for any "person authorized to make
an arrest" who, upon probable cause, arrests someone for a misdemeanor
committed in his presence).
(FN6.) In the absence of legislative action,
we note that police departments, where practical, may take the precaution of
having their officers sworn in as special officers on the police forces of
neighboring cities and towns in order to validate extra‑territorial
arrests. G.L.
c. 41, § 99 (1984 ed.). See Commonwealth v. Harris, 11 Mass.App.Ct. 165, 171 n. 6, 415 N.E.2d 216 (1981).
(FN7.) We consider this conclusion to be
implicit in the judge's ruling on the defendant's motion to dismiss.