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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.
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Elizabeth A. Lunt,
Margot Botsford, Asst.
Dist. Atty., for Com.
Before HENNESSEY, C.J.,
and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.
WILKINS, Justice.
Indicted
for several crimes arising out of an assault on a woman in Watertown in
January, 1984, the defendant appeals from the denial of his pretrial motion to
suppress [397 Mass. 645] the woman's in‑court and out‑of‑court
identifications of him. See Mass.R.Crim.P. 15(b)(2), 378
The
unlawful arrest resulted from an incident of indecent exposure which a female
security guard at a local business reported to the
On April
17, 1984, a judge in the Concord District Court found sufficient facts to
warrant a guilty finding on the indecent exposure charge and, subject to
certain terms of probation, continued the case without a finding. About this time, a Bedford police officer
sent the defendant's photograph to the Watertown police. The challenged identification of the
defendant soon followed.
[1][2] The
defendant's chief contention in this case rests on the conceded fact that,
contrary to § 35A, the clerk's office gave the defendant no opportunity to be
heard in opposition to the issuance of process on the indecent exposure charge. This omission was purely a statutory
violation. The Constitution of the
United States does not entitle the defendant to a hearing before process can
properly issue on such a complaint. See Gerstein v. Pugh, 420 U.S. 103, 113, 95
S.Ct. 854, 862, 43 L.Ed.2d 54 (1975);
Street v. Surdyka, 492 F.2d 368, 371‑372
(4th Cir.1974). Similarly, the
Constitution of the Commonwealth grants no such right. We disagree with the motion judge's
conclusion that the violation of § 35A contravened art. 12 of the Declaration
of Rights. Article 12 provides, in part,
that no person shall be arrested except by "the law of the
land." The phrase "law of the
land" does not refer to the statutory law of the Commonwealth, as it
exists from time to time. Rather, it
refers, in language found in Magna Charta, to the concept of due process of
law. See Commonwealth v. Acen, 396 Mass. 472, 474‑475,
487 N.E.2d 189 (1986); Pugliese v.
Commonwealth, 335 Mass. 471, 475, 140 N.E.2d 476 (1957);
Jones v. [397 Mass. 647] Robbins, 8 Gray 329, 342‑343
(1857). Due process of law does not
require a hearing before process may properly issue on a criminal complaint.
We must
decide, then, whether identifications should be excluded if based on a
photograph taken following an arrest which, although founded on probable cause,
followed a violation of § 35A. There is
little doubt on this record that, if the required hearing had been held,
process would have issued. On the other
hand, although the judge made no finding on the point, the Commonwealth seems
to grant that, if a hearing had been held, a summons rather than a warrant
would have been issued, and the defendant would probably not have been arrested
and photographed. We cannot fairly
conclude, therefore, as we did in
Commonwealth v. Sheppard, 394 Mass. 381, 390, 476 N.E.2d 541 (1985), that
the defendant was not prejudiced by a statutory violation.
The
fundamental question is what consequences the Legislature intended to follow
from a violation of § 35A. Section 35A
provides no explicit remedy for its violation.
Originally enacted in a considerably more modest form (see St. 1943, c.
349), § 35A was designed to encourage informal resolution of private disputes
and minor criminal matters. See Gordon v. Fay, 382 Mass. 64, 69‑70,
413 N.E.2d 1094 (1980). As now amended
(see St.1945, c. 293; St. 1978, c. 478,
§ 193), however, § 35A guarantees a potential defendant (barring exigent
circumstances) the right to notice and an opportunity to be heard in opposition
to issuance of process. Gordon v. Fay, supra at 69 n. 8, 413
N.E.2d 1094. We might reasonably infer
from the history of § 35A that a defendant may be entitled to dismissal of the
complaint where the opportunity for a § 35A hearing as to that complaint has
been denied. The procedure could then
start anew, and the defendant would have a chance to be heard before process
would be issued.
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.
[397 Mass. 648] [3] The right afforded by § 35A is not closely affiliated with
any constitutional guarantee. Its
violation carries no substantial risk of lasting prejudice to the defendant,
because the complaint process can be commenced again and the defendant can be
heard. We decline to attribute to § 35A
an automatic purpose, upon the issuance of process without giving a defendant
an opportunity first to be heard, to taint evidence obtained pursuant to the
improper process. We are particularly
led to such a conclusion where the evidence is objective, such as a
photograph. Thus the fact that the
defendant's photograph was obtained as a result of an arrest on a warrant
issued contrary to § 35A does not by itself require suppression of
identifications made on the basis of the photograph. See People
v. McInnis, 6 Cal.3d 821, 826, 100 Cal.Rptr. 618,
494 P.2d 690 (4‑3 decision) (suppression of identification not required
where photograph, taken after illegal arrest, was fortuitously used to identify
defendant as perpetrator of unrelated, previous crime, because there was no
evidence that the illegal arrest was exploited), cert. denied, 409 U.S. 1061,
93 S.Ct. 562, 34 L.Ed.2d 513 (1972);
Simmons v. United States, 364 A.2d 813, 815 (D.C.1976) (same). See also
Taylor v. State, 92 Nev. 158, 162, 547 P.2d 674 (1976) (photographic
evidence obtained incident to an illegal search need not be suppressed at trial
of subsequent, unrelated crime); 1 W. LaFave, Search and Seizure § 1.3(b), at 45‑46 (1978).
There is,
however, a further aspect of this case that we should not ignore. It presents a question more of due process
than of unreasonable search and seizure.
The Watertown police communicated with the Bedford police before the Bedford
police sought an arrest warrant and took the photograph. The judge concluded that the Watertown
detective's interest in a photograph of the defendant greatly intensified the
Bedford police prosecutor's interest in pursuing the indecent exposure
charge. On the other hand, as its disposition
showed, the indecent exposure charge was a valid one. The Bedford police prosecutor should not have
requested an arrest warrant in the first instance because in the circumstances
he was not entitled to one, and the magistrate should have complied with §
35A. The judge did not find, however,
that the Bedford prosecutor [397
Mass. 649] intentionally violated
the defendant's § 35A rights, nor did the defendant present evidence to explain
the error of the clerk's office.
Negligent
police conduct does not support the exclusion of evidence improperly obtained
to the same degree that deliberate wrongful conduct does. See
Commonwealth v. Nine Hundred & Ninety‑two Dollars, 383 Mass. 764,
771, 422 N.E.2d 767 (1981). Cf. Commonwealth v. Cote, 386
Mass. 354, 361, 435 N.E.2d 1047 (1982) (suppression required where evidence
obtained by intentional police misconduct).
The case for applying an exclusionary rule to deter magisterial
misconduct is weaker than the case for applying such a rule to police misconduct. See
Commonwealth v. Sheppard, 387 Mass. 488, 505‑506, 441 N.E.2d 725
(1982), and Massachusetts v. Sheppard,
468 U.S. 981, ‑‑‑‑ ‑ ‑‑‑‑,
104 S.Ct. 3424, 3429‑3430, 82 L.Ed.2d 737
(1984), reversing Commonwealth v.
Sheppard, supra. In the absence of
evidence adequate to support a finding that the police intended to circumvent
the requirements of § 35A in order to obtain the photograph of the defendant,
we see no arguable basis, as a requirement inherent in § 35A or founded on any
other ground, for suppressing identifications by the victim based on her
viewing of the defendant's photograph.
Indeed, the defendant does not argue here that the judge should have
made a finding concerning the reason that § 35A was violated or that the police
of either municipality intentionally and wrongfully violated the defendant's
right under § 35A.
The order
denying the defendant's motion to suppress is affirmed.
So ordered.
(FN1.) The motion judge ruled that the
identification procedures themselves were not unnecessarily suggestive. There is no sound basis for overturning his
conclusion in this respect.
(FN2.)
Pertinent portions of § 35A read as follows:
"If a
complaint for a misdemeanor is received by a district court, or by a justice,
... or by a clerk ... thereof ..., the person against whom such complaint is
made, shall, if not under arrest for the offence for which the complaint is
made, upon request in writing, seasonably made, be given an opportunity to be
heard personally or by counsel in opposition to the issuance of any process
based on such complaint.
"If
such complaint is received, the court, or any of said officers referred to in
the preceding paragraph, shall, unless there is an imminent threat of bodily
injury, of the commission of a crime or of flight from the commonwealth by the
person against whom such complaint is made, give to said person, if not under
arrest for the offense for which the complaint is made, notice in writing of
such complaint; and said person shall be
given an opportunity to be heard in opposition to the issuance of process as
provided in the first paragraph."