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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. Jacobsen, 419 Mass. 269 (1995)
Supreme Judicial Court of Massachusetts,
Barnstable.
Argued Oct. 3, 1994.
Decided Jan. 4, 1995.
J. Thomas Kirkman, Asst.
Dist. Atty., for the Com.
Brian J. Wall, Barnstable, for defendant.
Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY,
JJ.
NOLAN, Justice.
This case
raises the issue whether a judge erred in granting the defendant's motion to
dismiss on the basis that his warrantless arrest
violated the statutory warrant requirement of G.L. c.
275, §§ 2, 3 (1992 ed.). The
Commonwealth contends that the warrantless arrest of
the defendant [419 Mass. 270] was valid because G.L.
c. 209A, § 6(7) (1992 ed.), authorizes police to make warrantless
arrests if there is probable cause to believe that an individual has committed
a misdemeanor involving "abuse" as defined in G.L.
c. 209A, § 1. The Commonwealth argues
that G.L. c. 209A may be read harmoniously with G.L. c. 275, or alternatively, that G.L.
c. 209A impliedly repeals the warrant requirement of G.L.
c. 275 in the context of domestic abuse.
The Commonwealth's final contention is that, even if the warrantless arrest of the defendant was unlawful, dismissal
of the complaint was too harsh a remedy.
[1] The
facts of this case are largely undisputed.
On
Following
the defendant's arrest, he was arraigned and held on bail for fourteen days
awaiting trial. The defendant filed a
motion to dismiss alleging that his arrest was unlawful because it failed to
comply with the statutory warrant requirement set forth in G.L.
c. 275, §§ 2 and 3. At the motion
hearing, the parties stipulated to the following: (1) that the defendant was arrested without a
warrant; (2) that there was no clerk
magistrate hearing. No other testimony
or evidence[419 Mass. 271]
was offered for the record. The
judge granted the defendant's motion and dismissed the
complaint. The Commonwealth appeals from
this decision. We transferred the case
to this court on our own motion.
[2] 1. Validity of the warrantless
arrest under G.L. c. 275, §§ 2, 3. We first consider whether the warrantless arrest of the defendant was valid under G.L. c. 275, §§ 2, 3.
Section 2 of G.L. c. 275 provides in pertinent
part:
"If complaint is made to
any such court or justice that a person has threatened to commit a crime
against the person or property of another, such court or justice shall examine
the complainant and any witnesses who may be produced, on oath, reduce the
complaint to writing and cause it to be subscribed by the complainant."
Section
3 of G.L. c. 275, states further:
"If,
upon such examination, it is found there is just cause to fear that such crime
may be committed, such court or justice shall issue a warrant, reciting the
substance of the complaint, and requiring the officer to whom it is directed
forthwith to apprehend the person complained of...."
The statutory scheme set out in G.L.
c. 275, §§ 2 and 3, is clear and unambiguous.
Before arresting someone for threatening to commit a crime, the court
must examine the sworn testimony of the complainant, reduce the complaint to
writing, and on a finding of "just cause" to fear that the threatened
crime may be committed, issue an arrest warrant. (FN2)
In the present case, however, the procedures outlined in G.L. c. 275, §§ 2 and 3, were not followed. The complainant, the defendant's girl friend,
did not give sworn testimony regarding the alleged threats. There was no finding that there was
"just cause" to fear that the threatened crime [419 Mass. 272] may be
committed, and no warrant was issued for the defendant's arrest. Because the clear directives of the statute
were ignored, we conclude that the defendant's arrest was unlawful. See Wagenmann v. Adams, 829 F.2d 196, 207 (1st Cir.1987).
2. Applicability of G.L. c. 209A.
The Commonwealth argues, however, that the warrantless
arrest of the defendant was valid because G.L. c.
209A,§ 6(7)(b ), authorizes warrantless arrests for certain misdemeanors in the context
of domestic abuse. We consider whether G.L. c. 209A applies to the facts of this case.
"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. Howe, 405 Mass. 332, 334,
540 N.E.2d 677 (1989), quoting
Commonwealth v. Gorman, 288 Mass. 294, 297, 192 N.E. 618 (1934). With the enactment of G.L.
c. 209A, § 6(7), the Legislature expanded the authority of police to make warrantless arrests for certain misdemeanors in the context
of domestic abuse. (FN3)
General Laws c. 209A, § 6(7), provides in pertinent part:
"Whenever
any law officer has reason to believe that a family or household member has
been abused or is in danger of being abused, such officer shall use all
reasonable means to prevent further abuse.
The officer shall take, but not be limited to the following action: ... [419
Mass. 273] When there are no vacate,
restraining, or no‑contact orders or judgments in effect, arrest shall be
the preferred response whenever an officer witnesses or has probable cause to
believe that a person: (a ) has committed a felony; (b
) has committed a misdemeanor involving
abuse as defined in section one of this chapter; (c
) has committed an assault and battery in violation of section thirteen A of
chapter two hundred and sixty‑five" (emphasis added).
[3] In the present case, because there is
no evidence that the defendant committed either a felony or an assault and
battery, the only possible justification for his warrantless
arrest is if the arresting officer had probable cause to believe that the
defendant "committed a misdemeanor involving abuse as defined in section
one of this chapter."
[4] "Abuse" is defined in G.L. c. 209A, § 1 as:
"[T]he occurrence of one or more of the following acts between
family or household members: (a ) attempting to cause or causing
physical harm; (b ) placing another in fear
of imminent serious physical harm; (c ) causing another to engage
involuntarily in sexual relations by force, threat or duress" (emphasis
added). It is not alleged that the
defendant either physically harmed or attempted physically to harm his girl friend
on the date of the arrest. Nor is it alleged
that the defendant caused his girl friend to engage involuntarily in sexual
relations. Thus, any attempt to justify
the defendant's warrantless arrest must be based on a
claim that the defendant's threats "plac[ed]
[his girl friend] in fear of imminent serious physical harm."
On the limited record before us, we
cannot say that the defendant's threats constituted "abuse" as
defined in G.L. c. 209A, § 1. The language of the relevant definition of
"abuse," "placing another in fear of imminent serious physical
harm," requires that the threatened harm be not only "physical,"
but also "imminent" and "serious." In the present case, however, there was no
evidence offered as to the substance of the alleged threats. It is not clear whether the [419 Mass. 274] crime threatened involved bodily harm, or mere propertydamage.
Furthermore, there was no evidence offered as to "imminence"
or "seriousness" of the threatened harm. The only evidence offered at the motion
hearing was that the defendant was arrested without a warrant, and that there
was no clerk or magistrate hearing. On
this record alone, we cannot say that the defendant's actions constituted
"abuse" as defined in § 1 of G.L. c.
209A. As such, we conclude that G.L. c. 209A may not presently be relied on to justify the warrantless arrest of the defendant. (FN4)
[5] We point out, however, that a warrantless arrest for "abuse" properly may be
made under G.L. c. 209A, § 6(7), if a police officer
has reason to believe that a defendant's conduct with respect to a person
protected under G.L. c. 209A, placed the person in
fear of imminent serious physical harm.
The appropriate complaint in such a circumstance would be one for
assault under G.L. c. 265, § 13A (1992 ed.). See
Commonwealth v. Gordon, 407 Mass. 340, 349, 553 N.E.2d 915 (1990). The arrest, and ensuing assault complaint,
are based on the application of G.L. c. 209A and G.L. c. 265, § 13A, and do not involve the procedures
called for by G.L. c. 275,§§ 2 and 3. If in fact the arresting police officer in
this case believed that the defendant committed the abuse under G.L. c. 209A, it would still be open to the Commonwealth to
dismiss[419 Mass. 275]
the present complaint and to seek a new complaint, under G.L. c. 265, § 13A, charging the defendant with assault.
[6] 3.
Dismissal of complaint. The
Commonwealth's final contention is that, even if the arrest did not comply with
G.L. c. 275, §§ 2 and 3, dismissal of the complaint
was too harsh a remedy. We agree. (FN5)
We begin our analysis with the general
rule that "[a]n illegal arrest, without more, has never been viewed as a
bar to subsequent prosecution, nor as a defense to a valid conviction."
United States v. Crews, 445 U.S. 463, 474, 100 S.Ct.
1244, 1251, 63 L.Ed.2d 537 (1980). (FN6) The Supreme Court of the United States has
never held that searches and seizures contrary to the Fourth Amendment to the
United States Constitution warrant dismissal of the indictment.
United States v. Morrison, 449 U.S. 361, 366, 101 S.Ct. 665, 669, 66 L.Ed.2d 564 (1981). Rather, the remedy for an illegal arrest is
suppression of the evidence tainted by the police misconduct. (FN7) Id.
See Commonwealth v. Phillips,
413 Mass. 50, 58‑59, 595 N.E.2d 310 (1992) (where dismissal of
indictments would have little or no deterrent effect, suppression of evidence
is proper remedy for Fourth Amendment violation); United States v. Rodriguez, [419 Mass. 276] 948 F.2d 914, 916 (5th Cir.1991),cert. denied, 504 U.S. 987, 112 S.Ct. 2970, 119 L.Ed.2d 590 (1992) (remedy for Fourth
Amendment violation is exclusion of evidence rather than dismissal of
indictment). "An unlawful detention
cannot deprive the government of the opportunity to prove guilt through the
introduction of evidence wholly untainted by the police misconduct."
Commonwealth v. Fredette, 396 Mass. 455,
459, 486 N.E.2d 1112 (1985).
[7][8] Dismissal of a complaint is a
drastic remedy which should be used in only a limited number of
circumstances. "Absent egregious
misconduct or at least a serious threat of prejudice, the remedy of dismissal
infringes too severely on the public interest in bringing guilty persons to
justice." Commonwealth v. Cinelli,
389 Mass. 197, 210, 449 N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S.Ct. 186, 78 L.Ed.2d 165 (1983). Whether an indictment should be dismissed
turns primarily on the ability of the defendant to obtain a fair trial after,
and in light of, the police misconduct. Commonwealth v. Lam Hue To, 391 Mass.
301, 312‑313, 461 N.E.2d 776 (1984).
See Commonwealth v. Pellegrini, 414 Mass. 402, 405‑406, 608 N.E.2d
717 (1993) ("an indictment valid on its face should not be dismissed
absent a showing that the defendant's ability to obtain a fair trial is
prejudiced"); Commonwealth v. Lewin,
405 Mass. 566, 588, 542 N.E.2d 275 (1989) (if the defendant "can receive a
fair trial in spite of the police misconduct ... that misconduct provides no
reason to dismiss the charges").
Although we have suggested that egregious prosecutorial misconduct, not
resulting in prejudice to the defendant, might in some circumstances warrant
dismissal of an indictment, we have never ordered the dismissal of charges in
such a circumstance. Commonwealth v. Phillips, supra, 413
Mass. at 59, 595 N.E.2d 310.
[9] In the present case, we conclude
that, despite the unlawfulness of the defendant's arrest, the judge erred in
dismissing the complaint. The
defendant's trial was scheduled to
begin two weeks after his arrest.
(FN8) There was no substantial
delay in the proceedings. See Commonwealth v. Gove, 366 [419 Mass. 277] Mass. 351, 357, 320 N.E.2d 900 (1974) (failure of prosecutor to
adhere to speedy trial standards warranted dismissal). In addition, there was no showing that the
police misconduct prejudiced the defendant or in any way impeded his ability to
obtain a fair trial. See Commonwealth v. King, 400 Mass. 283,
287‑288, 508 N.E.2d 1382 (1987) (where an attempt by police to intercept
and record conversations between defendant and his attorneys failed to
prejudice the defendant, dismissal of indictments was not warranted). Furthermore, although the police failed to
comply with the warrant requirement of G.L. c. 275,
§§ 2 and 3, the misconduct in this case was not so egregious as to warrant
dismissal of the complaint. See Commonwealth v. Cronk,
396 Mass. 194, 199, 484 N.E.2d 1330 (1985) (Commonwealth's failure to comply
with discovery orders not sufficiently egregious to warrant dismissal);
Commonwealth v. Cinelli, supra, 389 Mass.
at 207‑210, 449 N.E.2d 1207 (police officers' improper postarraignment interview without defense counsel not
sufficiently egregious to warrant dismissal).
Finally, any prejudice to the defendant may be remedied by suppression
of illegally obtained evidence.
Accordingly, the order dismissing the
complaint for threatening to commit a crime, is vacated, and the case is
remanded to the District Court. On
remand, the Commonwealth has the option of trying the case on the original
complaint if there remains any evidence after suppression, or bringing a new
complaint under G.L. c. 265, § 13A, if the arresting
officer had probable cause to believe that "abuse" had been committed
under G.L. c. 209A.
So
ordered.
(FN1.) The complaint against the defendant
read: "did threaten to commit a
crime against the person or property of another, to wit: domestic violence, in violation of G.L. c. 275, § 2."
In
a footnote, citing no authority, the defendant raises the issue whether,
because there is no statute in the Commonwealth criminalizing or defining the
term "domestic violence," the complaint is facially deficient. We decline to consider issues which are not
fully developed and are mentioned in only a cursory and conclusory
fashion. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975); Manchester v. Department of Envtl. Quality Eng'g, 381
Mass. 208, 214 n. 7, 409 N.E.2d 176 (1980); Beaton v. Land
Court, 367 Mass. 385, 389, 326 N.E.2d 302, appeal dismissed, 423 U.S. 806,
96 S.Ct. 16, 46 L.Ed.2d 27 (1975). Furthermore, because this issue is raised for
the first time on appeal, we need not consider it. Royal Indem.
Co. v. Blakely, 372 Mass. 86, 88, 360 N.E.2d 864 (1977), and cases cited.
(FN2.) "Just cause" has been equated
with "clear and present danger." Robinson v. Bradley, 300 F.Supp. 665, 669 (D.Mass.1969).
(FN3.) The Legislature has the power to enact
legislation which provides for warrantless arrests,
so long as the minimum standards set out by the Supreme Court are met.
Commonwealth v. Andrews, 358 Mass. 721, 724‑725, 267 N.E.2d
233 (1971). United States v. Mayo, 792 F.Supp. 768, 771 n. 2 (M.D.Ala.1992). The constitutionality of a warrantless arrest depends on whether the arresting officer
had probable cause at the time of the arrest. United States v. Watson,
423 U.S. 411, 417, 96 S.Ct. 820, 824, 46 L.Ed.2d 598
(1976). The issue of the existence of
probable cause at the time of the warrantless arrest
has not been raised in this appeal.
(FN4.) The authority of police to make warrantless arrests for certain misdemeanors involving
abuse exists only if the alleged abuse occurs between "family or household
members." The term "[f]amily or household members" is defined in part in G.L. c. 209A, § 1, as persons who "are or have been in a substantive dating or
engagement relationship, which shall be adjudged by district, probate or
Boston municipal courts consideration of the following factors: (1) the length of time of the
relationship; (2) the type of
relationship; (3) the frequency of
interaction between the parties; and (4)
if the relationship has been terminated by either person, the length of time
elapsed since the termination of the relationship."
The
defendant argues that G.L. c. 209A does not apply to
this case because there was insufficient evidence to establish that the
defendant and his girl friend were in a "substantive dating
relationship." Because we conclude
that on this record the defendant's threats did not constitute
"abuse" under G.L. c. 209A, § 1, we do not
reach the issue regarding the extent of the relationship. See
Brossard v. West Roxbury Div. of the Dist. Court Dep't, 417 Mass. 183, 184‑185,
629 N.E.2d 295 (1994).
(FN5.) The judge dismissed the complaint on
the basis that the police arrested the defendant without a warrant in violation
of G.L. c. 275, §§ 2 and 3. There has been no issue raised on this appeal
regarding whether the police had probable cause to make the arrest. Based on this record, it is unclear whether
the defendant's rights under the Fourth Amendment to the United States Constitution
have been violated.
(FN6.)
"Our numerous precedents ordering the exclusion of such illegally obtained
evidence assume implicitly that the remedy does not extend to barring the
prosecution altogether. So drastic a
step might advance marginally some of the ends served by exclusionary rules,
but it would also increase to an intolerable degree interference with the
public interest in having the guilty brought to book." United States v. Crews, 445
U.S. 463, 474 n. 20, 100 S.Ct. 1244, 1251 n. 20, 63
L.Ed.2d 537 (1980), quoting United States
v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419,
16 L.Ed.2d 510 (1966).
(FN7.) The fruit of the poisonous tree
doctrine, set out in Wong Sun v. United
States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9
L.Ed.2d 441 (1963), provides for the exclusion of illegally obtained evidence,
whether it be "tangible, physical material actually seized in an illegal
search, items observed or words overheard in the course of the unlawful
activity, or confessions or statements of the accused obtained during an illegal
arrest and detention" (footnotes omitted). United States v. Crews, 445
U.S. 463, 470, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537
(1980).
(FN8.) The defendant's motion to dismiss was
heard on June 28, 1993. The defendant's
trial was scheduled to begin the same day.
Had the judge not granted the defendant's motion to dismiss, a trial on
the underlying complaint would have been held.