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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. Howe, 405
Supreme Judicial Court of Massachusetts,
Argued
Decided
William E. McKeon, Jr., Raynham, for defendant.
Linda M. Fleming, Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, and O'CONNOR, JJ.
WILKINS, Justice.
The
defendant, convicted by a jury of operating a motor vehicle while under the
influence of intoxicating liquor, presents three issues in his appeal, which we
transferred here on our own motion. He
first claims that his arrest was unlawful because a deputy sheriff arrested him
without authority to do so. The other
two issues concern the admission of the results of a blood alcohol test and
objections to the prosecutor's closing jury argument. We affirm the judgment.
[405
We know
from evidence at the trial that two deputy sheriffs in separate, marked vehicles
were following the defendant's vehicle which the defendant was operating
erratically on Route 44 in
The
defendant moved to dismiss the complaint, alleging that his arrest by Plymouth
County deputy sheriffs was illegal. The
record shows that the defendant based his argument solely on the alleged lack
of authority of a deputy sheriff to arrest a person without a warrant for
operating a motor vehicle while under the influence of intoxicating
liquor. (FN1)
[1] The
deputy sheriff was authorized to stop the defendant's vehicle and to arrest him
for operating a motor vehicle in Plymouth County while under the influence of
intoxicating liquor. [405 Mass. 334] A deputy sheriff has authority to act that a private person would
not have in similar circumstances. See Commonwealth v. Grise,
398 Mass. 247, 251‑252, 496 N.E.2d 162 (1986).
At common
law, "[a] peace officer, in the absence of statute ... may arrest without
a warrant for a misdemeanor which (1) involves a breach of the peace, (2) is
committed in the presence or view of the officer ... and (3) is still
continuing at the time of the arrest or only interrupted, so that the offence
and the arrest form parts of one transaction" (citations omitted).
Commonwealth v. Gorman, 288 Mass. 294, 297, 192 N.E. 618
(1934). Accord Muniz v. Mehlman, 327 Mass. 353, 357, 99
N.E.2d 37 (1951); Commonwealth v. Conway, 2 Mass.App.Ct. 547, 550, 316 N.E.2d 757 (1974). Operating an automobile while under the
influence of alcohol is a misdemeanor which involves a breach of the peace.
Commonwealth v. Gorman, supra at 299, 192 N.E. 618. See Commonwealth v. Grise,
supra at 249 n. 2, 496 N.E.2d 162 n. 2.
It is apparent that the alleged traffic offense occurred in the presence
or view of the deputy sheriffs and continued until they stopped the defendant's
vehicle. Thus, if a deputy sheriff is a
common law "peace officer," the warrantless
stop and arrest was justified on this theory.
The implication of our opinions is that a deputy sheriff is such a peace
officer. See Commonwealth v. Gorman, supra at 296‑297, 192 N.E. 618;
Hartley v. Inhabitants of Granville, 216 Mass. 38, 39, 102 N.E. 942
(1913) (constable). See also 3 Op. Att'y Gen. 488 (1912);
1 W.H. Anderson, Sheriffs, Coroners, and
Constables § 153 (1941).
In any
event, the authority of a deputy sheriff to make the arrest in this case is
recognized by statute. An officer
"authorized to make arrests" who is in uniform or conspicuously
displaying his badge of office may arrest without a warrant any person who, the
officer has probable cause to believe, has operated or is operating a motor
vehicle while under the influence of intoxicating liquor. G.L. c. 90, § 21
(1986 ed.). A deputy sheriff's authority
to make an arrest of a person for a breach of the peace is inherently
recognized in G.L. c. 37, § 13 (1986 ed.), which
provides that sheriffs and their deputies "may require suitable aid ... in the apprehending or securing of a
person for a breach of the peace."
See G.L. c. 268, § 24 (1986 ed.), which makes
it a crime to refuse to aid a sheriff [405
Mass. 335] to secure a person for a
breach of the peace. Such statutes make
sense only if a deputy sheriff has the authority to make arrests for breaches
of the peace. (FN2)
[2] 2. The
judge properly admitted the results of a blood alcohol test conducted by a
chemist of the Massachusetts Department of Public Safety showing a blood
alcohol content of 0.18%. See G.L. c. 90, § 24(1)(e
) (1986 ed.). The jury could have found
that shortly after the defendant's arrest a physician took blood from the
defendant in the presence of a police officer who tagged two vials of
blood. There was evidence that a police
officer took the vials to Boston five days later and gave them to a
chemist. Thereafter a certificate of the
test results was issued. The defendant's
objection that the Commonwealth did not adequately show the custody of the two
vials goes to the weight of the evidence of test results, not to their
admissibility. See Commonwealth v. Hogg, 365 Mass. 290, 294‑295, 311 N.E.2d 63
(1974);
State v. Fornier, 103 N.H.
152, 154‑155, 167 A.2d 56 (1961).
[3] 3. The
defendant objected to the prosecutor's closing argument to the jury that the
existence of a blood alcohol content of 0.18% was "completely
inconsistent" with the defendant's testimony that he had only three twelve‑ounce
cups of "lite" beer at the race track. The judge charged the jury, without
objection, that they would be warranted in inferring that a person was under
the influence of intoxicating liquor if his blood alcohol content was 0.10% or
greater. See G.L.
c. 90, § 24(1)(e ) (1986 ed.). Although there was no expert testimony
concerning the effect on blood alcohol content of the consumption of three
twelve‑ounce beers in the circumstances of this case, the prosecutor's
argument was proper. The inference that,
because of the results of his blood alcohol tests, the defendant had had more
than three twelve‑ounce cups of beer
[405 Mass. 336] was one that the
prosecutor was warranted in asking the jury to draw. (FN3)
See Commonwealth v. Lamrini, 392 Mass. 427, 431, 467 N.E.2d 95 (1984).
Judgment affirmed.
LIACOS, Chief Justice (dissenting).
The court
concludes that the authority of a deputy sheriff to make an arrest in this case
is recognized by statute, and implicit in our opinions. I disagree.
The
Massachusetts statutory scheme, in fact, makes clear that the deputy sheriff in
this case lacked the authority to arrest the defendant. Statutes which grant police officers the
power to arrest do so explicitly. See G.L. c. 22B, § 7 (1986 ed.)
("capitol police shall have the same power to make arrests as the
state police officers," specifically in the enforcement of traffic
rules); G.L.
c. 41, § 98 (1986 ed.) ("police
officers of all cities and towns" have the power to make arrests). Furthermore, the circumstances in which a
deputy sheriff is authorized to make arrests are limited and enumerated. See, e.g., G.L. c.
160, § 220 (1986 ed. & 1987 Supp.)
(deputy sheriff may, without warrant, arrest person unlawfully riding on
freight car, caboose, or railroad car); G.L. c. 60, § 34 (1986 ed.)
(deputy sheriff may, with warrant, arrest person whose assessed taxes
remain unpaid after fourteen days); G.L. c. 64C, § 8 (deputy sheriff may, without warrant,
arrest person illegally transporting cigarettes); G.L. c. 138, § 56 (1986
ed.) (deputy sheriff may, without
warrant, arrest person illegally manufacturing, selling, or transporting
alcoholic beverages); G.L. c. 271, § 23
(1986 ed.) (deputy sheriff may arrest
persons found gambling); G.L. c. 272, §§ 65, 67, 69 (1986 ed.) (deputy sheriff shall, without warrant,
arrest "tramps," "vagrants," and
"vagabonds"). This court has
repeatedly recognized that the express mention of one matter in a statute
excludes by implication other similar matters.
See, e.g., Harborview
Residents' [405 Mass. 337] Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425, 432, 332 N.E.2d 891 (1975); Forcier v. Hopkins, 329 Mass. 668, 671, 110 N.E.2d 126
(1953);
General Elec. Co. v. Commonwealth, 329 Mass. 661, 664, 110 N.E.2d
101 (1953); Boston & Albany R.R. v. Commonwealth,
296 Mass. 426, 434, 6 N.E.2d 613 (1937).
Although the numerous Massachusetts statutes cited above authorize a
deputy sheriff to arrest in specific contexts, nowhere in the Massachusetts
statutory scheme is a deputy sheriff explicitly given the power to make a warrantless traffic stop.
The court
relies heavily on G.L. c. 37, § 13 (1986 ed.), which
states that deputy sheriffs "may require suitable aid in the execution of
their office in a criminal case, in the preservation of the peace ... and in
cases of escape or rescue of persons arrested upon civil process." Section 13 was last modified in 1902
(R.L.1902, c. 24, §§ 16, 17), and last discussed by this court in the mid‑1800's,
and then only in the antiquated context of a deputy sheriff's power to call out
the organized militia of the Commonwealth to aid in preserving public peace and
in enforcing the laws. Ela v. Smith, 5
Gray 121 (1857). See Whithead v. Keyes, 3 Allen 495, 497‑498
(1862) (discussing sheriff's liability for an escape suffered by his
deputy). See also 3 Op. Att'y Gen. 488, 515 (1912) (deputy sheriff could direct any
commander of a brigade, regiment, battalion, corps of cadets, or company, to
aid in suppressing violence, or to quell imminent danger of riot or breach of
peace). General Laws c. 37, § 13, lends
no support to the Commonwealth's argument that deputy sheriffs have the power
to make traffic stops.
General
Laws c. 90, § 21 (1986 ed.), sets forth in detail a police officer's authority
to make a warrantless stop and arrest of any person
operating a motor vehicle while under the influence of intoxicating
liquor. Section 21 demonstrates the
explicit and specific language the Legislature uses when discussing arrest
powers: "Any officer authorized to make arrests, provided such officer is in uniform or conspicuously
displaying his [or her] badge of office, may arrest without warrant ... whoever
upon any way or place to which the public has the right of access, ... or who
the officer has probable cause to [405 Mass. 338] believe has operated or is operating a motor vehicle while under
the influence of intoxicating liquor ..." (emphasis added). Although G.L. c.
90, § 1, defines an "officer" as "any constable or other officer
authorized to make arrest or serve process,
provided he [or she] is in uniform or displays his [or her] badge of
office," § 21 refers specifically only to officers "authorized to
make arrests" (emphasis added). See
G.L. c. 37, § 12 (1986 ed.) (stating that deputy sheriff "may serve
... demands, notices and citations not required by law to be served by an
officer"). There is no suggestion
in the language of § 21 that a deputy sheriff is included in its grant of
authority. See Harborview Residents' Comm., Inc. v. Quincy Hous. Auth., supra at 432, 332 N.E.2d 891 (statutory
expression of one thing is an implied exclusion of other things omitted from
statute).
The court
additionally relies on two of our cases to support the conclusion that a deputy
sheriff has the power to make an arrest of a person operating an automobile
while under the influence. Such reliance
is misplaced. Commonwealth v. Gorman, 288 Mass. 294,
297‑298, 192 N.E. 618 (1934), does not discuss the powers of deputy
sheriffs but rather concerns the authority of a State police officer to make a warrantless arrest of a person operating a motor vehicle
while under the influence of intoxicating liquor. Id. at 295, 192 N.E.
618. Similarly, Hartley v. Inhabitants of Granville, 216 Mass. 38, 39, 102 N.E.
942 (1913), discusses only the general duties of a constable.
I conclude
that a deputy sheriff lacks the authority to make a warrantless
traffic
stop and arrest. I would
reverse the judgment.
(FN1.) It is too late for the defendant to
argue here for the first time that, because there was no evidence presented to
the motion judge showing that the deputy sheriffs had probable cause to stop
the defendant's vehicle, the motion judge should have allowed the motion to
dismiss. The defendant presented no such
claim in his motion to dismiss or in his memorandum in support of that
motion. If he had raised the issue,
evidence of his erratic driving could have been presented.
(FN2.)
The defendant argues that deputy sheriffs, in recent times, have not made
arrests for breaches of the peace; that
they generally serve process and transport prisoners and have no significant
training or established qualifications in law enforcement; and that State and local police have taken
over the duties once performed by sheriffs and their deputies. It is for the Legislature, however, to decide
whether to eliminate the long‑standing authority of a deputy sheriff to
arrest for a breach of the peace occurring in his presence in the county of his
authority.
(FN3.) Other
objections to the prosecutor's argument were adequately handled by the judge's
focused instructions.