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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. Hecox, 35 Mass.App.Ct. 277 (1993)
Appeals Court of Massachusetts,
No. 92‑P‑846.
Argued
Decided
Daniel L. Viveiros,
John P. Letourneau, Asst. Dist. Atty., for
the Com.
Before DREBEN,
KAPLAN and
DREBEN, Justice.
Convicted
of trafficking in cocaine, the defendant appeals, claiming that evidence of the
cocaine seized [35 Mass.App.Ct. 278]
from him should have been suppressed.
Because we agree with his contention, we reverse his conviction. (FN1)
We
take our facts from the motion judge's findings, supplemented interstitially by
a few details from the testimony of Officer LaPointe,
the only witness at the hearing on the motion to suppress. On
[1]
As a result of his investigation, Officer LaPointe
filed a report requesting that a complaint be sought and that an arrest warrant
issue for Hecox for the offense of assault with
intent to murder, together with two lesser complaints. The docket suggests that the complaint
issued, together with a warrant, on
[35 Mass.App.Ct. 279] "By some means not clear from the evidence offered, the
defendant became aware of the complaint sought against him. He appeared in the District Court [on
November 22, 1988] where he was arraigned and released on personal recognizance
before the warrant had actually issued.
It is apparently the procedure in Fall River District Court for the
'court liaison officer' to request complaints and warrants. The information of the arraignment of this
defendant was not conveyed to Officer LaPointe.
"On
the early morning of November 27, 1988, shortly after coming on watch, Officer LaPointe spotted the maroon Lincoln with the plate
designation, in part, of '411.' Officer
LaPointe concluded that the defendant was across the
street in a bar, and he anticipated that the defendant would be exiting the bar
and going to his automobile about 1:00 or 1:30 a.m. Officer LaPointe
called for backup assistance and, subsequently, two additional cruisers
appeared and joined Officer LaPointe in his
observation location at the end of the
block in which the car was parked.
"The
officers in the cruisers observed the defendant and his girlfriend come out of
the bar, walk across the street and enter the maroon Lincoln. At this time, the officers converged on the
maroon Lincoln and blocked any possibility of exit. Officer LaPointe
got out of his vehicle and approached the maroon Lincoln. He noticed the driver holding a white bag in
an open position up to his face. As
Officer LaPointe approached the operator of the
Lincoln, he put the bag down on the floor of the car. (FN3) At that point, Officer LaPointe unholstered his service
revolver and, pointing it at the operator of the vehicle, instructed him to put
his hands on the steering wheel. He then
opened the door of the car and instructed the operator to 'Get out.' The operator of the maroon Lincoln was the
defendant, Arthur S. Hecox, [35 Mass.App.Ct. 280] a/k/a Scott Hecox. Officer LaPointe
then positioned the defendant with his hands on the roof of the maroon Lincoln
and conducted an initial patdown for weapons.
"With
the defendant out of the vehicle, his girlfriend exited the vehicle on the
passenger side. Officer LaPointe observed a bag of white powder on the floor of the
driver's side. It appeared to him to be
the same white bag that had been held up to the defendant's face. Officer LaPointe,
as a result of the Police Academy, in‑house training and his experiences
as a police officer, felt with reasonable certainty that the white powder was
cocaine. It appears that he
simultaneously (FN4) learned that the defendant had been to court and had been released
on personal recognizance and that the warrant, if ever issued, was not now
outstanding. Officer LaPointe,
however, realized that he had a 'possession with intent to distribute,' given
the quantity of white powder, and placed the defendant under arrest for
possession with intent to distribute."
Based
on these findings, the judge ruled that LaPointe was
under a reasonable, good faith belief that an arrest warrant was outstanding,
that he could briefly detain Hecox, and that, when he
saw the cocaine in plain view, he could seize the drugs.
[2]
As we shall shortly discuss, we do not think the good faith exception to the
exclusionary rule of the Fourth Amendment to the United States Constitution
applies in these circumstances. The
problem arises because LaPointe's information at the
time of the defendant's initial detention did not accurately reflect the
current situation known to other law enforcement authorities. Hecox's voluntary
appearance at the District Court on November 22, 1988, had rendered the arrest
warrant, if it had issued, obsolete at the time that LaPointe[35 Mass.App.Ct.
281]
on November 27 detained and subsequently arrested the defendant. (FN5)
The judge's findings imply either that Officer LaPointe
did not check with his communications office or he received incorrect data
until the time he arrested the defendant.
In
the analogous situation of outmoded computer records, courts have expressed
their serious concern with police action based on incorrect information. See, e.g.,
Ott v. State, 325 Md. 206, 219, 600 A.2d 111,
cert. denied, 506 U.S. 904, 113 S.Ct. 295,
121 L.Ed.2d 219 (1992) (allowing "outdated, inaccurate information to
remain in the computer ... plac[es]
citizens at risk of being deprived of liberty, without legal basis"). See also
United States v. Mackey, 387 F.Supp. 1121, 1124
(D.Nev.1975):
"Because of the inaccurate
listing in the NCIC computer, defendant was a 'marked
man' for the five months prior to his arrest, and, had this particular
identification check not occurred, he would have continued in this status into
the indefinite future. At any time, as
demonstrated by this situation, a routine check by the police could well result
in defendant's arrest, booking, search and detention."
We
have not been directed to any Massachusetts case considering a similar
situation, and we have found none. The
most pertinent authorities elsewhere deal primarily with police reliance on
outdated computer information, and, although it is not clear that a computer
was involved here, we consider those cases to be sufficiently comparable to the
case at bar to be persuasive.
[35 Mass.App.Ct.
282] [3] We first mention that at
trial, or for that matter on appeal, the defendant did not make any separate
State constitutional claims but, rather, without relying on any specific
constitutional clause, argued that his original detention was a warrantless arrest without probable cause. In such circumstances, we consider the
defendant's contentions under Federal standards. See
Commonwealth v. Oakes, 407 Mass. 92, 98‑99, 551 N.E.2d 910
(1990); Smith, Criminal Practice and
Procedure § 2 (1993 Supp., at 1). (FN6)
Since
the motion judge relied on Officer LaPointe's good
faith, we must consider whether LaPointe's actions
come within the ambit of United States v.
Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d
677 (1984), the case holding that the exclusionary rule does not apply where
police in good faith rely on a search warrant issued by a detached magistrate
but ultimately found to be unsupported by probable cause. Most courts that have considered the question
have held that Leon does not apply
where an arrest is based on erroneous information supplied by the law
enforcement authorities themselves. For
example, in Ott
v. State, 325 Md. at 211‑219, 600 A.2d 111, where an arrest was made
based on a warrant that had been satisfied seven days earlier, the Court of
Appeals of Maryland, after analyzing authorities prior to and subsequent to Leon, as well as n. 24 (FN7) 468 U.S.
at 923, 104 S.Ct. at 3420 of Leon itself, concluded that Leon
did not allow law enforcement authorities to rely on an error of their own
making. As noted in Albo v. State, 477 So.2d 1071, 1073
(Fla.[35 Mass.App.Ct.
283] App.1985), an important basis
for Leon was the determination that
the interest in deterring unlawful police conduct, which is the foundation of
the exclusionary rule, is not implicated where the police rely on the erroneous
finding of a neutral judge or magistrate.
In that instance, there is no police illegality or misconduct to deter.
Leon, supra 468 U.S. at 920‑921, 104 S.Ct.
at 3419. The situation is different
where the arrest is based on erroneous information supplied by the law
enforcement authorities, where there is police misconduct to deter. See
State v. Gough, 35 Ohio App.3d 81, 519 N.E.2d 842 (1986). See also other cases holding the good faith
exception of Leon inapplicable to
uncorrected, outdated police data, e.g., State v. Peterson, 171 Ariz. 333, 340,
830 P.2d 854 (App.1991), cert. denied, 506 U.S. 974, 113 S.Ct.
465, 121 L.Ed.2d 373 (1992); People v. Howard, 162 Cal.App.3d 8, 208 Cal.Rptr. 353 (1984); People v. Joseph, 128 Ill.App.3d 668, 83 Ill.Dec. 883, 470 N.E.2d 1303 (1984); People v. Mourecek,
208 Ill.App.3d 87, 152 Ill.Dec. 964, 566 N.E.2d 841
(1991);
State v. Taylor, 468 So.2d 617 (La.App.1985). See also
State v. Moore, 260 N.J.Super. 12, 16‑17,
614 A.2d 1360 (1992), and People v. McElhaney, 146 Misc.2d 748, 751, 552 N.Y.S.2d 825
(N.Y.Sup.Ct.1990), rejecting an application of the good faith exception to an
arrest made on a vacated warrant or an invalid stolen vehicle report because
the highest courts in New Jersey and in New York have rejected the good faith
exception on State constitutional grounds.
Contra, however, is a Second Circuit case holding that the Vermont police
had probable cause to arrest based on stale information from New Hampshire
authorities. United States v. Towne, 870 F.2d 880, 884‑885,
cert. denied, 490 U.S. 1101, 109 S.Ct. 2456, 104
L.Ed.2d 1010 (1989). (FN8)
A
number of cases prior to Leon also
rejected "reasonable" reliance by police on stale information. See, e.g.,
People v. Ramirez, 34 Cal.3d 541, 545, 194 Cal.Rptr.
454, 668 P.2d 761 (1983); People v. Mitchell, 678 P.2d 990, 993‑994
(Colo.1984); People v. Jennings, 54 N.Y.2d 518, 523,
446 N.Y.S.2d 229, 430 N.E.2d 1282 (1981).
Cf. United States v. Mackey,
387 F.Supp. at 1122.
In these cases a finding of probable cause failed, not because the
"facts" upon which the officer in good faith relied upon turned out
to be false, but, rather, as explained[35
Mass.App.Ct. 284] by 2 LaFave, Search
& Seizure § 3.5(d), at 21‑22 (2d ed. 1987), "the police may not
rely upon incorrect or incomplete information when they are at fault in
permitting the records to remain uncorrected" or at fault in not informing
themselves.
The
authorities are not in accord as to what kind of delays will support the
conclusion that the government is at fault.
A number of cases have held that a short delay even if unexplained is
acceptable. See Childress v. United States, 381 A.2d 614, 617 (D.C.App.1977) (four
days);
In re R.E.G., 602 A.2d 146, 149
(D.C.App.1992) (three days); Commonwealth v. Riley, 284 Pa.Super. 280, 287, 425 A.2d 813 (1981) (arrest warrant
satisfied four days earlier). But see People v. Lent, 92 A.D.2d 941, 460
N.Y.S.2d 369 (N.Y.1983) (eight hours); People v. McElhaney,
146 Misc.2d at 749‑750, 552 N.Y.S.2d 825 (two days). These two New York cases indicate that any
delay is intolerable, but it should be noted that People v. Jennings, 54 N.Y.2d at 523, 446 N.Y.S.2d 229, 430 N.E.2d
1282 may have left the door open to permit a short period.
[4]
Although the period in the case at bar, five days, is also short, we think that
the better view, and the one that will operate as an incentive for maintaining efficient
police records and communication, is provided by those cases (and also by 2 LaFave, Search & Seizure § 3.5(d), at 23‑24 [2d
ed. 1987 and Supp.1993, at 5] ) that hold that, where there is stale
information or outmoded records that are demonstrably incorrect, the government
has the burden of showing that it is not at fault in failing to update its
records or to provide correct information.
In Ott
v. State, 325 Md. at 223, 600 A.2d 111, the court charged the police
officer with knowledge of his own department's records and expressly rejected
the intermediate appellate court's determination that the period of delay
(seven days, two on a weekend and a third on a holiday) was not sufficient to
amount to police misconduct.
"That determination ... is
not one that may be made as a matter of law.
The question whether a lapse of time was sufficiently short so that
reliance by the police may properly be considered reasonable and in good faith
may be a mixed question of law and fact.
Moreover,[35 Mass.App.Ct. 285] the burden to establish the facts underlying
that determination rests with the State.
And the good faith exception does not serve to excuse the State of that
burden. Since the State failed to meet
its burden of going forward with evidence as to the amount of time reasonably
required to clear the computer of outdated information, not to mention the
burden of persuasion on the issue, the trial court properly suppressed the
evidence."
Id. at 222‑223, 600 A.2d 111
(citations omitted).
In State v. Moore, 260 N.J.Super.
12, 614 A.2d 1360, the defendant had posted bail on a bench warrant and had
been released from jail forty‑two days before her arrest on the
warrant. Recognizing "that some
delay in updating information is inherent and must be countenanced," the
court held, however, "that where those records are demonstrably incorrect
because the warrant has been vacated, the State must carry the burden to
establish justification for any administrative delay in their update." Id.
at 20, 614 A.2d 1360. See also 2 LaFave, Search & Seizure § 3.5(d) (Supp.1993, at 5)
taking the position that fault cannot be decided as matter of law and that an
arrest is invalid where the arresting officer acts upon information that, while
originally correct, no longer applies, and through the fault of the government
is retained in the system.
We
agree with Ott
and Moore, as well as LaFave, and hold that the question whether LaPointe's delay in obtaining the correct information was
reasonable cannot here be determined as matter of law. Since the Commonwealth has failed to produce
any evidence as to the time reasonably needed to inform police officers of the
appearance of the defendant in court, it has not met its burden of justifying
the administrative delay that resulted in his detention. Accordingly, we hold that the motion to
suppress should have been allowed. Since
without the evidence suppressed there was no other evidence to convict the
defendant, we order that the judgment be reversed, that the finding be set aside,
and that judgment be entered for the defendant.
So ordered.
(FN1.) The defendant also argues that the
evidence presented at trial was equally consistent with personal use as with
trafficking, and, therefore, his motion for a required finding of not guilty on
the charge of trafficking should have been granted. We need not reach this issue but point out
that this claim is most dubious since, in addition to the large quantity (52.57
grams), there was expert evidence that the amount was more consistent with
distribution than with personal use. See Commonwealth v. Sendele,
18 Mass.App.Ct. 755, 759 n. 14, 470 N.E.2d 811
(1984). Compare Commonwealth v. Murphy, 34 Mass.App.Ct.
16, 17‑18 & n. 2, 605 N.E.2d 1254 (1993).
(FN2.) The
docket shows, among other items, two headings.
Under one entitled "date of complaint" is the entry
"11/21/88" and under another heading entitled "return date and
time" is the entry "Warrant."
There was evidence at the motion hearing that suggests that no warrant
issued. LaPointe
was asked on cross‑examination:
Q. "You also found out that no
warrant had ever issued?"
A. "I believe I found that out
either that night or early in the morning" (i.e., later in the morning
after the arrest).
The defendant in his brief, relying on the
transcript, claims that no warrant issued.
The judge was entitled to construe the docket to mean that a warrant did
issue.
FN3. At that time Officer LaPointe
could not identify what was in the bag.
FN4. The
evidence as to when LaPointe learned of the
defendant's court appearance was most confusing. When asked on cross‑examination if,
prior to arresting Hecox, he had received a
communication that Hecox had already been to court, LaPointe answered:
"If they said it, there would be no proof to back it up."
(FN5.) If there
was no probable cause to arrest there was here also no reasonable suspicion to
conduct a threshold inquiry under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). LaPointe testified
that there was nothing that the defendant did to arouse suspicion. We need not determine, therefore, whether the
degree of intrusion in the circumstances amounted to an arrest. See Commonwealth v. Borges, 395 Mass. 788,
794, 482 N.E.2d 314 (1985); Commonwealth v. Moses, 408 Mass. 136,
141, 557 N.E.2d 14 (1990); Commonwealth v. Stawarz,
32 Mass.App.Ct. 211, 213‑214, 587 N.E.2d 797
(1992); Smith, Criminal Practice and
Procedure § 72 (1983 and Supp.1993).
(FN6.)
Massachusetts has not adopted under State law the "good faith" doctrine
of United States v. Leon, 468 U.S.
897, 906‑907, 104 S.Ct. 3405, 3412, 82 L.Ed.2d
677 (1984). Commonwealth v. Pellegrini,
405 Mass. 86, 91 n. 6, 539 N.E.2d 514 (1989).
See Commonwealth v. Treadwell,
402 Mass. 355, 356 n. 3, 522 N.E.2d 943 (1988).
(FN7.) That footnote
reads as follows:
"References to 'officer'
throughout this opinion should not be read too narrowly. It is necessary to consider the objective
reasonableness, not only of the officers who eventually executed the warrant,
but also of the officers who originally obtained it or who provided information
material to the probable‑cause determination. Nothing in our opinion suggests, for example,
that an officer could obtain a warrant on the basis of a 'bare bones' affidavit
and then rely on colleagues who are ignorant of the circumstances under which
the warrant was obtained to conduct the search.
See Whitely v. Warden, 401
U.S. 560, 568 [91 S.Ct. 1031, 1037, 28 L.Ed.2d 306]
(1971)."
(FN8.) This case is criticized in 2 LaFave, Search & Seizure § 3.5(d) n. 82 (Supp.1993, at
4‑5).