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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. Mullen, 40 Mass.App.Ct.
404 (1996)
Appeals Court of Massachusetts, Worcester.
No. 94‑P‑1974.
Argued
Decided
Further
Appellate Review Denied
William E. Loughlin,
Assistant District Attorney, for Commonwealth.
Harry D. Quick, III, Worchester, for defendant.
Before PERRETTA, GILLERMAN and LENK, JJ.
LENK, Justice.
The
Commonwealth brings this interlocutory appeal from an order of a District Court
judge suppressing evidence stemming from the defendant's warrantless
arrest for three motor vehicle offenses on November 18, 1993, on North Street,
a public way adjacent to the campus of Fitchburg [40 Mass.App.Ct. 405] State College. (FN1) The arresting officer was employed by the
college as a special State police officer who was purportedly acting pursuant
to G.L. c. 22C, § 63, inserted by St.1991, c. 412, §
22. The statute grants such officers
"the same power to make arrests as regular police officers for any
criminal offense committed in or upon lands or structures owned, used or
occupied by such college." The
Commonwealth contends that the statute empowered the officer to arrest the
defendant for operating under the influence of liquor on part of a public way
that was within the confines of the college campus. For the reasons herein stated, we affirm the
order of the judge allowing the motion to suppress.
We
summarize the findings of the motion judge, supplemented in significant
respects with uncontroverted testimony adduced at the
hearing on the motion. On
Without
citing to any authorities or explaining his analysis, the motion judge in
granting the defendant's motion to suppress concluded as matter of law only
that "[t]he Fitchburg State College employee lacked legal authority to do
those things which were done." The
parties at the motion hearing and on appeal focus their attention on a
question of statutory construction, viz., whether North Street was "owned
used or occupied" by Fitchburg State College, so as to permit Harrington
to make arrests for any criminal offense committed thereon. It is not necessary to reach the issue framed
by the parties.
[1]
Harrington stopped the defendant for failure to yield at an intersection, a
civil motor vehicle infraction punishable only by a thirty‑five dollar
fine. G.L. c.
89, § 8, as amended through St.1991, c. 552, §§ 64, 65. See
Cambridge v. Phillips, 415 Mass. 126, 128, 612 N.E.2d 638 (1993). It is not an arrestable
offense. St.1988, c. 202, § 28. (FN4)
See and compare Commonwealth v. Zorrilla, 38 Mass.App.Ct. 77,
79, 645 N.E.2d 48 (1995). At the time he
stopped the defendant, Harrington did not have reason to suspect that the
defendant had committed an arrestable offense. It was only after the officer stopped the
defendant and made observations concerning his sobriety that Harrington [40 Mass.App.Ct.
407] discovered grounds to arrest
the defendant for the arrestable offense of operating
a motor vehicle under the influence of alcohol.
If Harrington had the authority to stop the defendant in the first
instance, the validity of the defendant's subsequent arrest based on probable
cause discovered to exist after the stop is not thereby put in question, Commonwealth v. Cavanaugh, 366 Mass.
277, 278‑279, 317 N.E.2d 480 (1974), and the issue framed by the parties
would then be pertinent. As it is,
however, we conclude that Harrington did not have authority to stop the
defendant for a civil motor vehicle violation and, accordingly, the subsequent warrantless arrest cannot be justified by observations made
following the stop. It is, therefore, of
no consequence to our analysis that North Street may be "owned, used or
occupied" by Fitchburg State College.
General
Laws c. 22C, § 63, does not confer upon campus security staff all the powers of
a State police officer appointed pursuant to c. 22C, § 10. On its face, G.L.
c. 22C, § 63, confers upon those appointed thereunder
by the colonel of the Massachusetts State police as special State police
officers only "the same power to make arrests as regular police officers
for any criminal offense committed in or upon lands or structures owned, used
or occupied by such college." The
police powers thus conferred upon certain college employees are similar, but by
no means identical, to the specific police powers conferred by c. 22C, §§ 56‑68,
upon certain agents or employees of: the
Massachusetts Society for the Prevention of Cruelty to Children, (FN5) various
humane societies and associations, (FN6) the Port of Boston Authority, (FN7)
the Department of Mental Health or Department of Mental Retardation, (FN8) the [40 Mass.App.Ct.
408] Department of Public Health,
(FN9) the Massachusetts Turnpike Authority, (FN10) various soldiers' homes,
(FN11) the Civil Defense Agency, (FN12) the Middlesex County Sanatorium, (FN13)
the Department of Employment and Training, (FN14) the State Lottery Commission
(FN15) and the Bureau of Special Investigations. (FN16)
The statutory provisions of c. 22C, §§ 56 through 68, are all silent as
to the authority, if any, of special State police officers appointed thereunder to enforce the civil motor vehicle laws on
public ways within their respective jurisdictions.
General
Laws c. 90C details the procedures to be employed with regard to motor vehicle
offenses. It is c. 90C, § 2, as [40 Mass.App.Ct.
409] inserted by St.1985, c. 794, §
3, which authorizes a police officer to stop a motorist in order to issue a
citation for automobile law violations.
This section provides inter alia that "any police officer assigned to traffic enforcement
duty" shall record the violation upon a citation. Section 3, as amended by St.1992, c. 379, §§
5, 5A, provides that "If a police officer observes ... the occurrence of a
civil motor vehicle infraction, the officer may issue a written warning or may
cite the violator for a civil motor vehicle infraction...." To do so, the police officer must, of course,
in many instances first stop the offender.
However, c. 90C, § 1, as amended through St.1991, c. 412, § 64, defines
"police officer" narrowly to include "any officer ... authorized
to make arrest or serve criminal process, any person appointed by the registrar
under section twenty‑nine of chapter ninety, any person appointed by the
trustees of the University of Massachusetts under section thirty‑two A of
chapter seventy‑five, any person appointed by the trustees of
Southeastern Massachusetts university under section seventeen of chapter
seventy‑five B and any person appointed by the colonel of state police
under section fifty‑nine of chapter twenty‑two C."
[2] While
virtually all special State police officers are empowered by c. 22C, §§ 56
through 68, to "make arrest" and/or "serve criminal
process," we do not read c. 90, § 1, to encompass all such special State
police officers within the definition of "police officer." Were this so, it would have been redundant
and unnecessary for c. 90, § 1, expressly to include within the definition of
"police officer" only those special State police officers appointed
under c. 22C, § 59. Accordingly, we conclude
that campus police officers, unlike those employed by the Departments of Mental
Health or Mental Retardation under c. 226, § 59, are not empowered under c.
90C, § 2, to stop motorists for automobile law violations on public ways within
their jurisdiction. (FN17) Consistent with the foregoing, the motion
judge specifically found that Officer Harrington "had no citation book and
the [d]efendant did not receive any motor vehicle
citations."
[40 Mass.App.Ct.
410] As the acknowledged basis for
the stop by the officer was a civil motor vehicle violation which was not an arrestable offense, the evidence relating to the subsequent
complaint for operating a motor vehicle under the influence of alcohol was
properly suppressed in circumstances where the officer did not suspect that the
defendant had committed an arrestable offense prior
to the stop. See Commonwealth v. Zorrilla, 38 Mass.App.Ct. at 78‑81, 645 N.E.2d 48 (warrantless search and seizure of a motor vehicle unlawful
where basis for the police stop was a nonarrestable
civil offense). The order of the judge
allowing the defendant's motion to suppress is therefore affirmed.
So ordered.
(FN1.) Complaints issued against the defendant
for operating a motor vehicle under the influence of alcohol (G.L. c. 90, § 24), operating a motor vehicle without
license in possession (G.L. c. 90, § 11), and failure
to yield at an intersection (G.L. c. 89, § 8), the
latter two complaints being civil infractions.
(FN2.)
There was no testimony at the suppression hearing concerning the citation of
the defendant for operating under the influence of alcohol.
(FN3.)
The judge read the complaint into the record.
The complaint recites that the defendant "did operate a motor
vehicle on a way as defined in G.L. c. 90, § 1, and
while turning left in an intersection of ways, across the path of a vehicle
approaching from the opposite direction, did fail, before turning, to yield the
right‑of‑way until such time as the left turn could be made with
reasonable safety, in violation of G.L. c. 89, §
8." Presumably based on
Harrington's testimony on cross‑examination that the Escort pulled out of
Authority Drive at a right angle, the judge specifically found that the
defendant was "not making a left turn as set forth" in the complaint.
(FN4.)
Indeed, as the defendant suggests here, it appears that the judge may have in
fact determined that the failure to yield infraction may not have occurred at
all, for the reason that the defendant was not making a left turn. See
Commonwealth v. Zorrilla, 38 Mass.App.Ct.
77, 79 n. 4, 645 N.E.2d 48 (1995).
General Laws c. 89, § 8, provides that an operator "intending to
turn left ... [must] yield the right‑of‑way." The judge found that the defendant was not
making a left turn.
(FN5.)
Chapter 22C, § 56: "[A]gents ...
shall have and exercise throughout the commonwealth the powers of state police
officers to serve warrants and other criminal processes, except the authority
to arrest without warrant."
(FN6.)
Chapter 22C, § 57: "They ... shall
have throughout the commonwealth the powers of constables and police officers
to arrest and detain any person violating any law for the prevention of cruelty
to animals."
(FN7.)
Chapter 22C, § 58: "[T]hey shall
have the same power to make arrests as the state police for any criminal
offense committed in or upon lands, piers or structures within the charge of
said authority."
(FN8.)
Chapter 22C, § 59: "[E]mployees ... shall have the same power to make arrests as
the state police for any criminal offense committed in or upon lands or
structures within the charge of said departments or of the various institutions
under the respective jurisdictions of said departments."
(FN9.)
Chapter 22C, § 60: "[E]mployees ... shall have the same power to make arrests as
the state police for any criminal offense committed in or upon the lands or
structures within the charge of the department of public health or the various
institutions under its jurisdiction."
(FN10.) Chapter 22C, § 61: "[T]hey shall have the same power to
make arrests as the state police for any criminal offense committed in or upon
lands or structures within the control of said authority."
(FN11.) Chapter 22C, § 62: "[E]mployees
... shall have the same power to make arrests as the state police for any
criminal offense committed in or upon land or structures within the charge of
said boards of trustees...."
(FN12.)
Chapter 22C, § 64: "[E]mployees ... shall have the same power to make arrests as
the state police of any criminal offense committed in or upon lands or
structures located in the town of Framingham within the charge of said
director."
(FN13.) Chapter 22C, § 65: "[E]mployees
... shall have the same power to make arrests as regular police officers for
any criminal offense committed in or upon lands, or structures owned, used or
occupied by said sanatorium."
(FN14.) Chapter 22C, § 66: "[T]hey shall have the same power to
make arrests as the state police for any violation of section forty‑seven
of chapter one hundred and fifty‑one A and shall have the power to serve
warrants and other criminal processes."
(FN15.) Chapter 22C, § 67: "[T]hey shall have the same power to
make arrests as the state police for any criminal offense committed in
connection with any activities operated or regulated by the state lottery
commission."
(FN16.) Chapter 22, § 68: "[T]hey shall have and exercise
throughout the commonwealth the same powers as state police officers to serve
warrants and other criminal processes for any criminal offense resulting from
either a fraudulent claim for payment or service under any assistance program
administered by the department of public welfare or any program administered by
the department of social services or a receipt of payment or services by a
person entitled thereto or for any violation of chapter two hundred and seventy‑three
relative to the support of spouses and children for whom the department of
public welfare is entitled to receive payment, or in whose behalf said
department is giving aid; except, that
said officers shall not have the authority to arrest without a warrant."
(FN17.) Since at least 1961, prior to the
enactment of both c. 22C,§ 59, and c. 90C, § 1, special police officers
appointed under c. 147, § 10B, and employed by the Department of Mental Health
have enforced regulations relative to controlling motor vehicle traffic on the
grounds of State hospitals. Opinion of
the Attorney General, Rep. A.G, P.D.
No. 12 at 115, 117 (1962).