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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
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Commonwealth v. LeBlanc, 407
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued
Decided
Catherine E. Sullivan, Asst. Dist. Atty., for Com.
John H. LaChance,
Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY,
JJ.
LIACOS, Chief Justice.
This is an
interlocutory appeal by the Commonwealth from a District Court judge's
allowance of the defendant's motion to suppress. The judge ordered suppression of evidence
flowing from the defendant's extraterritorial [407
The judge
made the following findings of fact. At
The
officer approached the vehicle and asked the defendant for his license and
registration. The defendant did not have
a license with him. Officer Geissler detected a strong odor of alcohol coming from the
defendant. The officer asked the
defendant to perform two field sobriety tests which, in the officer's view, the
defendant failed. The officer arrested
the defendant and took him to the
A judge of
the District Court ruled that, while the police officer had the authority to
stop the defendant in Framingham, he exceeded his authority when he arrested
him. The judge granted the defendant's
motion to suppress all evidence resulting from the arrest, including the
breathalyzer test, the observations during booking, and the sobriety tests
conducted at the station. The judge did
not [407 Mass. 72] suppress the police officer's prearrest observations and did not dismiss the case.
[1] 1. Legality of the arrest. Generally, a police officer is powerless to
make a warrantless arrest outside the boundaries of
the governmental unit by which he was appointed. Commonwealth v. Grise, 398 Mass. 247, 249, 496 N.E.2d 162 (1986). The Legislature, through G.L.
c. 41, § 98A (1988 ed.), permitted extraterritorial "fresh pursuit"
arrests for any arrestable offense, whether it be a
felony or misdemeanor, initially committed in the arresting officer's presence
and within his jurisdiction. See Grise, supra
at 249, 496 N.E.2d 162. Section 98A
provides, in part: "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 offence committed in his presence within his jurisdiction
for which he would have the right to arrest within his jurisdiction without a
warrant." (FN2)
[2] The
Commonwealth argues that, despite the fact that the officer was pursuing the
defendant across town lines because of a nonarrestable
traffic violation, (FN3) the statute nonetheless allowed the officer to arrest
the defendant in Framingham. The
Commonwealth suggests that the officer need not have suspected that the
defendant was driving under the influence at the time he followed the defendant
into Framingham. In our view, the
statute cannot be read reasonably to mean that an officer need not know that an
arrestable offense has been committed in his presence
in order to pursue the suspect in another jurisdiction. See
Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336, 439 N.E.2d 770
(1982) ("We will not adopt a literal construction of a statute if the
consequences of such [407 Mass. 73] construction are absurd or
unreasonable"). The officer must
have some reason to believe that the suspect has committed an arrestable offense before he can pursue and arrest an
individual pursuant to § 98A. This
interpretation comports with the legislative history of G.L.
c. 41, § 98A. See 1967 House Journal
567. (FN4) If the Legislature thinks it desirable to
expand a police officer's authority to deal with a case like that before us, it
is free to do so. See Commonwealth v. Grise,
supra, 398 Mass. at 252, 496 N.E.2d 162.
In addition, "[i]n 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." Id. at 252‑253 n. 6, 496 N.E.2d
162, citing G.L. c. 41, § 99 (1984 ed.), and Commonwealth v. Harris, 11 Mass.App.Ct. 165, 171 n. 6, 415 N.E.2d 216 (1981).
[3] 2. Legality of the stop. The defendant claims that Officer Geissler acted without statutory authority when he stopped
the defendant in Framingham. (FN5) We agree.
A police officer's authority is limited to the territorial jurisdiction
of his appointment, barring a statutory exception. See
Commonwealth v. Harris, supra at 168‑169, 415 N.E.2d 216. The Commonwealth argues that G.L. c. 90C, § 2, implicitly grants police officers the
authority to make an extraterritorial stop.
That statute governs the issuance of citations for automobile law
violations. [407 Mass. 74]
Section 2 provides, in part:
"A failure to give a copy of the citation to the violator at the
time and place of the violation shall constitute a defense in any court proceeding
for such violation, except where the violator could not have been stopped or
where additional time was reasonably necessary to determine the nature of the
violation or the identity of the violator, or where the court finds that a
circumstance, not inconsistent with the purpose of this section to create a
uniform, simplified and non‑criminal method for disposing of automobile
law violations, justifies the failure."
The Commonwealth argues that the Legislature intended a police officer
who observes an automobile violation in his jurisdiction to have the authority to
pursue that automobile into the next city or town and to stop it there for the
purpose of delivering a citation to the violator.
Nowhere in
c. 90C is there any provision expanding the territorial authority of police
officers. Contrary to the assertions of
the Commonwealth, one "circumstance ... justifying the failure" to
give a citation is the lack of the authority of a police officer to stop an
automobile in a neighboring jurisdiction.
The statute's provision for delivery or mailing of the citation to a
violator's home address, in the event of a driver's failure to stop, indicates
that a police officer has no authority to stop a motorist outside his
territorial jurisdiction.
Additionally,
we observe the following. General Laws
c. 90, § 21 (1988 ed.), which gives a police officer authority to make warrantless arrests of individuals under the influence of
intoxicating substances, does not expand the territorial powers of that police officer.
Commonwealth v. Grise, supra. Similarly, G.L. c.
90C, § 2, while allowing a police officer to stop a motorist in order to issue
a citation, contains no provision giving the officer additional authority to
make an extraterritorial stop. Last, the
Legislature did not include in G.L. c. 41, § 98A, any
authority for an extraterritorial stop following the fresh pursuit of a person
who commits a civil traffic violation.
The
Commonwealth, in arguing that the Legislature intended to give police officers
authority to make extraterritorial[407
Mass. 75] stops, cites a number of statutes which
broaden police officers' territorial authority.
See, e.g., G.L. c. 41, § 95 (1988 ed.) (extraterritorial authority to execute arrest
warrants); G.L.
c. 41, § 98 (1988 ed.) (extraterritorial
authority to carry weapons); G.L. c. 41, § 98A (extraterritorial fresh pursuit for arrestable offenses).
Rather than implying that the Legislature intended to give the police
the authority to make extraterritorial stops, these statutes demonstrate that
the Legislature knows how to expand the extraterritorial authority of the
police when it thinks it fit to do so.
The Legislature has chosen not to provide the police with extraterritorial
authority to make stops for traffic violations.
If it wishes to modify that judgment, it may do so.
3. Disposition. The police officer in this case acted
without statutory or common law authority both when he stopped the defendant
and when he arrested him. Our case law
supports exclusion of evidence when such conduct prejudices the defendant. See
Commonwealth v. Grise, 398 Mass. 247, 253, 496
N.E.2d 162 (1986); Commonwealth v. Lyons, 397 Mass. 644, 647‑648,
492 N.E.2d 1142 (1986). "We have on
occasion found an exclusionary rule to be inherent in the purpose of a statute
which the government has violated. See Commonwealth v. Upton, 394 Mass. 363,
367 n. 4 [476 N.E.2d 548] (1985), where the cases are collected. We have found such a purpose inherent only in
statutes closely associated with constitutional rights, rights grounded in
fundamental fairness." Id. 397 Mass. at 647, 492 N.E.2d
1142. A police officer's conduct in
excess of his authority fits into this category. The requirement that a police officer have
lawful authority when he deprives individuals of their liberty is closely
associated with the constitutional right to be free from unreasonable searches
and seizures.
The
District Court judge was correct in suppressing all evidence flowing from the
arrest. Because of our conclusion that
the extraterritorial stop was also improper, the fruits of the stop should also
have been suppressed.
[407 Mass. 76] The order of the court is accordingly affirmed in part and
reversed in part.
So ordered.
(FN1.) The defendant was taken to the Natick
station for booking even though Framingham police had arrived at the
scene. In Natick, the complaints issued
against the defendant were for operating a motor vehicle while under the
influence of an intoxicating beverage, G.L. c. 90, §
24(1)(a ) (1988 ed.) (a criminal violation), and failure to stop
for a red light, G.L. c. 90C, § 2 (1988 ed.) (a civil infraction).
(FN2.)
The statute also provides: "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." G.L. c. 41, § 98A.
(FN3.)
Passing through a red light, a civil traffic infraction, is not an arrestable offense.
See G.L. c. 90C, § 2.
(FN4.) The out‑of‑State cases
dealing with this particular issue indicate no clear trend. Compare
Wenatchee v. Durham, 43 Wash.App. 547, 551, 718
P.2d 819 (1986) (extraterritorial arrest invalid because officer initially
observed commission of traffic infractions, not felonies), with Commonwealth v. Montgomery, 513 Pa.
138, 144, 518 A.2d 1197 (1986), cert. denied, 480 U.S. 935, 107 S.Ct. 1579, 94 L.Ed.2d 769 (1987) (knowledge possessed by
officer at time territorial boundary crossed not determinative).
(FN5.) This issue was decided against the
defendant by the motion judge, who refused to suppress any prearrest
evidence which resulted from the stop.
Ordinarily, a defendant may not pursue an interlocutory appeal of a
denial of a motion to suppress. See Commonwealth v. Mottola,
10 Mass.App.Ct. 775, 781, 412 N.E.2d 1280
(1980). However, the Commonwealth does
not argue that the defendant is barred from making the argument, and as both
parties have briefed and argued this issue, and as the issue appears to arise
"under the umbrella of the government's appeal," we choose to address
it.
Id. at 782, 412 N.E.2d 1280, quoting United States v. Moody, 485 F.2d. 531, 534 (3d Cir.1973).