On April 16, 2010 the Supreme Judicial Court ruled in COMMONWEALTH vs. ALEXANDER HERNANDEZ 456 Mass. 528 (2010) that the campus police, as special State police officers, did not have the statutory authority to execute an arrest warrant.
The court stated in reviewing the facts “The campus police officers first observed the defendant pumping gasoline into his automobile at a gasoline station located on the corner of Melnea Cass Boulevard and Massachusetts Avenue, near the Boston Medical Center, a facility associated with Boston University. At the time, neither the campus police (who were in their university police cruiser) nor the defendant was within the perimeter of the Boston University campus or its facilities. The officers “randomly” ran a check of the defendant’s automobile registration and learned that the registered owner of the automobile had an outstanding warrant for a “motor vehicle violation of some sort.” It is uncontested that the motor vehicle violation was a misdemeanor and that it had not occurred “in or upon lands or structures owned or used or occupied” by Boston University. G. L. c. 22C, § 63.
Assuming that the defendant was the registered owner of the automobile (and therefore the subject of the warrant), the campus police followed the defendant as he drove out of the gasoline station and entered the Massachusetts Avenue connector ramp heading to Route 93. At no time did the defendant enter the perimeter of the Boston University campus. The officers activated the lights on their cruiser and pulled the defendant’s vehicle over while it was on the connector ramp. They approached the vehicle and confirmed that the appearance of the defendant matched the description of the person for whom the warrant was outstanding. The defendant was then placed under arrest, and initially transported to the Boston University police department. The campus police remained at the scene of the arrest, conducted an inventory search of the automobile (pursuant to a written inventory policy of Boston University), and arranged for it to be towed. During the inventory search, the officers discovered a quantity of cocaine and heroin in the center console of the vehicle.
The Commonwealth concedes on appeal, and we agree, that the campus police, as special State police officers, did not have the statutory authority to execute the arrest warrant in this case, where the underlying offense was not “committed in or upon lands or structures owned or used or occupied” by Boston University, and the defendant was not present on those lands and structures when the warrant was executed. G. L. c. 22C, § 63. It also concedes that the officers had no common-law authority to execute an arrest warrant for a misdemeanor in the circumstances presented here, even as mere citizens. See Commonwealth v. Grise, 398 Mass. 247, 250-251 (1986) (when police officer makes an arrest outside of his jurisdiction [with exceptions not relevant here], he acts as private citizen and arrest only valid if private citizen justified in making arrest in same circumstances; private citizen has no authority to arrest for misdemeanor). What the Commonwealth contends, however, is that suppression is not an appropriate or constitutionally required remedy for the evidence discovered as a result of the admittedly unlawful extraterritorial arrest, where there was, in any event, probable cause to effectuate it. See Virginia v. Moore, 128 S. Ct. 1598, 1604- 1606 (2008) (Moore).
Finally, the Commonwealth contended at oral argument that although the officers acted beyond the scope of their authority in arresting Hernandez, the product of the subsequent search need not be subject to exclusion because the “officers were acting in good faith based on their manual, and that a ruling from this court will have sufficient deterrent effect.” Cf. United States v. Leon, 468 U.S. 897, 918-921 (1984) (adopting “good faith” exception to exclusionary rule where officer conducting search objectively reasonably relied on search warrant issued by neutral magistrate which was subsequently determined to be invalid and in violation of Fourth Amendment).
We have not adopted the “good faith” exception for purposes of art. 14 of the Massachusetts Declaration of Rights or statutory violations, focusing instead on whether the violations are substantial and prejudicial. See Commonwealth v. Beldotti, 409 Mass. 553, 559 (1991) (denying exclusion of evidence because intrusion was minimal, but noting “we do not rely on any theory the police were proceeding in good faith reliance [on] a defective search warrant”); Commonwealth v. Pellegrini, 405 Mass. 86, 91 n.6 (1989) (reiterating that Massachusetts law has not adopted good faith exception of United States v. Leon, supra, to exclusionary rule); Commonwealth v. Treadwell, 402 Mass. 355, 356 n.3 (1988) (same); Commonwealth v. Sheppard, 394 Mass. 381, 391 (1985) (holding that deficiency as to particularity in warrant not prejudicial under art. 14 where search was conducted as if warrant were in compliance, and thus, was not unreasonable). See also J.A. Grasso & C.M. McEvoy, Suppression Matters Under Massachusetts Law § 20-3[d] (2010). There was plainly prejudice here, and the violation was not insubstantial. Moreover, it is questionable that the conduct at issue would meet the standard of good faith where the execution of the warrant was in contravention to State regulations governing the execution of arrest warrants by special State police officers, see 515 Code Mass. Regs. § 5.07(1)(b) (1996) (in executing warrant outside statutory jurisdiction of special State police officer, officer “shall be accompanied by a . . . member of a local police department of competent jurisdiction”), and the Boston University police department’s policy manual incorporating the same. The order suppressing the evidence is affirmed.”
This is a complicated area involving a specific group of law enforcement, so it shouldn’t be confused with G.L. Chapter 276 § 23 which allows for statewide jurisdiction on arrest warrants generally. Other statutory arrest powers can be found in Chapters 218 § 37 for probation officers, 37 § 11 for sheriffs, 41 § 94 for constables. Also of note is the citation for Suppression Matters Under Massachusetts Law by Justice Grasso, which if you have any interest in the topic of Criminal Procedure is a must read text.
Attorney Ronald A. Sellon