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13-P-1532                                              Appeals Court

                 COMMONWEALTH    vs.   BRIAN MAINGRETTE.


                              No. 13-P-1532.

            Suffolk.       June 3, 2014. - December 3, 2014.

                Present:    Cypher, Brown, & Agnes, JJ.


Search and Seizure, Fruits of illegal arrest. Practice,
     Criminal, Warrant. Evidence, Result of illegal arrest.
     Constitutional Law, Search and seizure, Arrest. Police,
     Unlawful arrest. Arrest. Firearms. Receiving Stolen
     Goods.



     Complaint received and sworn to in the West Roxbury
Division of the Boston Municipal Court Department on September
11, 2012.

     A pretrial motion to suppress evidence was heard by
Kathleen E. Coffey, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Barbara A. Lenk, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.


     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
     Winston D. Kendall for the defendant.
                                                                      2


    CYPHER, J.   The defendant, Brian Maingrette, was charged

with carrying a firearm without a license, unlawful possession

of ammunition, carrying a loaded firearm without a license, and

receiving stolen property, after he was stopped, and

subsequently arrested, on an outstanding warrant.     He filed a

motion to suppress, arguing that his arrest was invalid because

the warrant on which it was based had been recalled and,

therefore, the incriminating items found in the trunk of his

motor vehicle that were the basis for the pending charges must

be suppressed.   After a hearing, a judge of the Boston Municipal

Court allowed the motion.   The Commonwealth sought leave from a

single justice of the Supreme Judicial Court to pursue an

interlocutory appeal of that ruling.   The single justice allowed

the Commonwealth's application and directed the appeal to the

Appeals Court.

    Motion hearing.    Boston police Officer John Burrows was the

only witness to testify at the suppression hearing.     Because the

motion judge's findings are soundly based on Burrows's testimony

and are not in dispute, we quote from them here.

         "On September 10, 2012, officers assigned to the Youth
    Violence Task Force received information from a superior
    officer within the Boston [p]olice department that the
    defendant had been involved in a domestic incident the
    night before and he had brandished a gun. The defendant
    was known to the officers of the Youth Violence Task Force
    due to prior criminal investigations.
                                                                   3


         "Officer Burrows checked the warrant management system
    at 1:00 P.M. on September 10th and learned that the
    defendant had failed to appear that same morning in
    Middlesex Superior Court on a charge of armed assault with
    intent to murder. A default warrant had issued for his
    arrest. The officer printed a copy of the warrant.

         "Officer Burrows and fellow officers went to an
    address where the defendant's mother resides and where the
    defendant was known to frequent. The defendant was not
    located. They then traveled to 150 Edgemere Road,
    apartment 11, in West Roxbury. This was the address listed
    on the defendant's driver's license. At approximately 2:40
    P.M., the police arrived at the targeted apartment and
    knocked on the door. No one answered. Two detectives set
    up a surveillance of the apartment from an unmarked police
    vehicle. Officer Burrows left the area and returned to the
    police headquarters for the Youth Violence Task Force unit
    in Dorchester.

         "At about 4:15 P.M., the defendant was observed by the
    detectives driving a silver Acura [automobile] on Edgemere
    Road. Police observed him park his vehicle, exit[,] and
    enter the targeted apartment. Officer Burrows was notified
    of the presence of the defendant and he returned from
    headquarters to 150 Edgemere Road with other members of his
    unit. Their purpose was to arrest the defendant on the
    warrant that they believed was still outstanding."

    We pause in our recitation of the judge's findings to note

that Officer Burrows, who was the sole witness at the hearing

and whose testimony is not disputed (see Commonwealth v. Isaiah

I., 448 Mass. 334, 337-338 [2007], S.C., 450 Mass. 818, 819-821

& n.4 [2008]), testified in addition that by 4:30 P.M. at least

seven officers had returned to the area and were "just waiting

for transmissions" from the two detectives who had remained

behind and were still watching the residence.   Each officer had
                                                                   4


access to the warrant management system (WMS)1 through a computer

in each of the police vehicles in which they were traveling.

The judge's written findings of fact continue as follows.

          "At 5:00 P.M., the defendant left his home, entered
     his vehicle and began driving on Edgemere Road. Police
     blocked the vehicle and ordered the defendant to exit with
     his hands shown. The defendant did not obey the order.
     Police approached him with their guns drawn. The defendant
     eventually complied . . . . He was placed under arrest.

          "When police searched the trunk of his vehicle, they
     found a loaded firearm wrapped in a towel. Two [iP]hones
     and $940 . . . were found in the glove compartment.

          "During the booking procedure at the police station,
     officers found a default removal form on the defendant's
     person. The form revealed that the defendant had reported
     to Middlesex Superior Court that afternoon. The default
     warrant had been recalled at 3:00 P.M. and the defendant
     was no longer on default status.[2] When police asked the
     defendant why he had not informed police of the recalled
     warrant, he told them they had never asked him."

     In addition to the evidence summarized in these findings, a

1995 Boston police policy (special order number 95-31) was

admitted in evidence.   This policy in pertinent part states,

     1
       The warrant management system (WMS) was signed into law on
December 28, 1994, and established a computer system in which
court personnel are required to enter active warrants and to
remove warrants that have been satisfied or recalled. See G. L.
c. 276, § 23A, as appearing in St. 1994, c. 247, § 3. The
information is transferred to the criminal justice information
system (CJIS), which is maintained by the criminal history
systems board (CHSB) and thus available to all law enforcement
agencies and the Registry of Motor Vehicles.
     2
       A document printed from the computerized data base (CJIS)
was admitted in evidence which reflects that the warrant was
recalled on September 10, 2012, at 14:54 (2:54 P.M.), and that
document apparently would have been visible to anyone who ran a
warrant check after the recall was entered in the system.
                                                                   5


"Immediately prior to arresting a person for an outstanding

warrant, officers shall notify Operations so that the

computerized Warrant Management System can be checked to

determine if the outstanding warrant is still active . . . ."

    Based on this evidence, the motion judge ruled that the two

detectives who were conducting stationary surveillance of the

defendant's apartment for more than two hours; Officer Burrows,

who had returned to headquarters; and the other officers who

were part of the team and equipped with computers had ample time

and opportunity to check the status of the defendant's default

warrant before arresting him.   The motion judge concluded that

their failure to do so, in violation of the police department's

own policy, rendered the ensuing stop and search of his vehicle

unlawful and in violation of the defendant's constitutional

rights under the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights.

    Discussion.    On appeal, the Commonwealth does not dispute

that had the officers checked the WMS in the minutes immediately

preceding the defendant's arrest, they would have discovered

that the arrest warrant was no longer valid.   Nor is there any

dispute that, absent the warrant, there is no independent basis

for the arrest.   The Commonwealth contends, however, that the

police reliance upon information obtained from the WMS about
                                                                    6


four hours before the arrest was reasonable.   The Commonwealth

argues that, based on the officers' experience, there was no

good reason for the officers to suspect that the defendant had

cleared the warrant after 1:00 P.M. and the defendant did not

inform the officer of the recall when stopped and placed under

arrest.   Because the "delay in obtaining the updated information

was reasonable," and art. 14 "is not violated by reasonable

mistakes of fact," Commonwealth v. Porter P., 456 Mass. 254, 270

(2010), the Commonwealth argues, probable cause existed at the

time of arrest and exclusion is not an appropriate remedy.

    In reviewing a judge's ruling on a motion to suppress, "we

accept the judge's subsidiary findings of fact absent clear

error 'but conduct an independent review of his ultimate

findings and conclusions of law.'"   Commonwealth v. Scott, 440

Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438

Mass. 213, 218 (2002).

    Several Massachusetts appellate cases shed light on the

appropriate analysis to be applied when reliance by a police

officer on mistaken information to justify a search or seizure,

as here, is the officer's responsibility alone.   First, in

Commonwealth v. Hecox, 35 Mass. App. Ct. 277 (1993), we reversed

a defendant's conviction of trafficking in cocaine where a

police officer mistakenly believed that an arrest warrant for

the defendant was outstanding -- even though it had been
                                                                        7


rendered obsolete five days earlier -- because the officer

either "did not check with his communications officer or he

received incorrect data until the time he arrested the

defendant."   Id. at 281.    Deciding the matter solely under

Federal law, id. at 282, we held that, where police have "stale

information or outmoded records that are demonstrably incorrect,

the government has the burden of showing that it is not at fault

in failing to update its records or to provide correct

information."   Id. at 284.    Because the Commonwealth failed to

meet this burden, we concluded that the defendant's motion to

suppress evidence should have been allowed.      Id. at 285.     This

court stated in Hecox, "'[T]he police may not rely upon

incorrect or incomplete information when they are at fault in

permitting the records to remain uncorrected' or at fault in not

informing themselves."      Id. at 284, quoting from 2 LaFave,

Search and Seizure § 3.5(d), at 21-22 (2d ed. 1987).

    Similarly, in Commonwealth v. Censullo, 40 Mass. App. Ct.

65, 69-70 (1996), we concluded that the exclusionary rule

required suppression of evidence on Federal constitutional

grounds when an officer's ignorance of traffic logistics at an

intersection on his patrol route resulted in the defendant's

arrest.   Rejecting the Commonwealth's contention that the

officer's mistake ought to be excused because he was acting in

good faith, an exception to the exclusionary rule Massachusetts
                                                                   8


has not adopted,3 we instead balanced whether the violation was

substantial and prejudicial and the extent to which exclusion

would deter future violations and concluded the evidence

obtained as a result of the stop must be suppressed.   Id. at 67-

70.

      Recently, in Commonwealth v. Hernandez, 456 Mass. 528, 528-

530 (2010), the Supreme Judicial Court ruled that heroin and

cocaine seized by Boston University police officers during a

motor vehicle stop outside of their jurisdiction was properly

suppressed.   Because the arrest was made without statutory or

common-law authority, the court viewed it as an invalid exercise

of official power "closely associated with the constitutional

right to be free from unreasonable searches and seizures," id.


      3
       In United States v. Leon, 468 U.S. 897, 918-921 (1984),
the United States Supreme Court adopted the "good faith"
exception to the exclusionary rule where the officer conducting
a search objectively reasonably relied on a search warrant
issued by a neutral magistrate that was subsequently determined
to be invalid and in violation of the Fourth Amendment to the
United States Constitution. Massachusetts has 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 and whether exclusion will deter future police
misconduct. See, e.g., 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 with that requirement and,
thus, search was not unreasonable); Commonwealth v. Treadwell,
402 Mass. 355, 356 n.3 (1988); Commonwealth v. Pellegrini, 405
Mass. 86, 91 n.6 (1989); Commonwealth v. Beldotti, 409 Mass.
553, 559 (1991) (minimal violation did not warrant exclusion of
evidence obtained).
                                                                      9


at 532, quoting from Commonwealth v. LeBlanc, 407 Mass. 70, 75

(1990), and thus the items seized were subject to the

exclusionary rule.    Commonwealth v. Hernandez, supra at 532-533.

See Commonwealth v. Hampton, 457 Mass. 152, 155 (2010)

(exclusionary rule applies to intentional deprivation of

statutory right to use telephone).      The violation was

exacerbated because the extraterritorial arrest contravened

State regulations and the Boston University police department's

policy manual incorporating those regulations.      Commonwealth v.

Hernandez, supra at 533.   Again, bypassing the contention that

the evidence should not be excluded because the mistake was made

in "good faith," the court weighed the fact that the arrest

without authority was a substantial violation, the "plain[]

prejudice" resulting from the discovery of the contraband, and

the likelihood that exclusion would deter the abuse of official

power, and concluded that exclusion of the evidence was an

appropriate remedy.   Id. at 532-533.

    Even more recently, in Commonwealth v. Lobo, 82 Mass. App.

Ct. 803, 808-810 (2012), we concluded that despite changes in

the law that rendered a police officer's order to the driver and

passengers to exit a stopped vehicle based upon the detection of

odor of "freshly burnt marijuana" unjustified, the

constitutional violation was not "so substantial and

prejudicial" in the circumstances of the case as to warrant
                                                                 10


exclusion under art. 14 of the evidence seized, because in the

circumstances present in the case there was no causal

relationship between the order and the defendant's ensuing

arrest on outstanding warrants, and the discovery of the

evidence was inevitable.

     In these cases deciding whether the application of the

exclusionary rule was warranted, the foundational purpose of the

rule -- to deter unlawful police conduct, see, e.g.,

Commonwealth v. Wilkerson, 436 Mass. 137, 142 (2002) -- is used

as a guiding principle.    In cases where an arrest is wrongly

made on the basis of mistaken information chargeable solely to

the police, the burden is on the government to show that it was

not at fault in the circumstances, see Commonwealth v. Hecox, 35

Mass. App. Ct. at 284-285 (violation of Fourth Amendment), in

other words, that the mistake was reasonable in the

circumstances, and that the violation was minor or insubstantial

and nonprejudicial and that exclusion of the evidence would not

be likely to deter future police misconduct.4,5   See Commonwealth


     4
       We note that, because these decisions involve police
conduct where the underlying warrant or basis for the arrest has
been deemed invalid, the requirement in these decisions that the
government bear the burden of showing the mistake was reasonable
comports with our requirement that where a search and arrest
were made without a warrant, "the Commonwealth bears the burden
of establishing that the actions of the police met
constitutional standards." Commonwealth v. Chown, 459 Mass.
756, 763 (2011), quoting from Commonwealth v. Santaliz, 413
Mass. 238, 240 (1992).
                                                                  11


v. Sheppard, 394 Mass. 381, 389-391 (1985) (substantial and

prejudicial requirement applied to State statutory and

constitutional violations); Commonwealth v. Hernandez, 456 Mass.

at 532-533 (substantial violation and prejudice found warranting

application of exclusionary rule to statutory violation

analogous to constitutional deprivation); Commonwealth v.

Censullo, 40 Mass. App. Ct. at 67-70 (suppression of evidence on

    5
       We note that in 2009, the United States Supreme Court
discussed the applicability under the Fourth Amendment of the
exclusionary rule to police mistakes. In Herring v. United
States, 555 U.S. 135, 136-138 (2009) (Herring), upon an initial
inquiry from a police officer, a clerk in a neighboring county
reported that there was an outstanding warrant for the
defendant. Within ten to fifteen minutes, however, the clerk
discovered that the warrant had been recalled and notified the
officer who had called, but by that time the defendant had
already been arrested. The mistake was a police housekeeping
error by the neighboring department, which had failed to update
computer data to reflect that the arrest warrant had been
recalled. The Court ruled that contraband seized from the
defendant during the arrest need not be suppressed because the
error was the result of negligence "rather than systemic error
or reckless disregard of constitutional requirements, [and] any
marginal deterrence does not 'pay its way.'" Id. at 147-148.

     Under the standard in Herring, it appears that the
exclusionary rule would still apply to the case at bar because
here the sole source of the error, unlike the situation in
Herring, was the failure of the police officers making the
arrest to comply with an almost twenty year old department
policy requiring them to check the WMS before making that
arrest. Even the Court in Herring made clear that it was not
suggesting that "all recordkeeping errors by the police are
immune from the exclusionary rule." Id. at 146. In any case,
of course, the Commonwealth may provide our citizens with
greater protection under the State constitution than that
afforded at the Federal level. See, e.g., Jenkins v. Chief
Justice of the Dist. Ct. Dept., 416 Mass. 221, 229 n.16 (1993);
Commonwealth v. Gonsalves, 429 Mass. 658, 662-663, 667-668
(1999).
                                                                     12


Federal constitutional grounds where stop not justified,

violation substantial [officer had no legal or independent basis

for stop], and exclusion will deter future violations [error was

police officer's]); Commonwealth v. Lobo, 82 Mass. App. Ct. at

808-810 (substantial and prejudicial requirement applied to art.

14 violation).   See also Commonwealth v. Beldotti, 409 Mass.

553, 559 (1991) (testing results of occult blood from murder

suspect's hands and arms based on invalid warrant not subject to

exclusion in view of minimal intrusion and likelihood of

inevitable discovery).

     Applying this analysis to the case at bar, the result is

dictated by the circumstances preceding the arrest and the

Boston police department policy.6   Specifically, the evidence

shows that at various intervals during the afternoon in question

there were up to nine police officers working together to locate

and arrest the defendant.   The assignment did not include

responding to an ongoing crime in which the defendant was

engaged, but rather consisted primarily of surveillance intended

to locate him.   Each officer in the team had access to a

computer that could be used to instantly access the WMS.     Added

     6
       Since an administrative policy or "standards" or
guidelines alone do not have the force of law, see Rubera v.
Commonwealth, 371 Mass. 177, 186 (1976); see also United States
v. Hensel, 699 F.2d 18, 29-30 (1st Cir. 1983) (Breyer, J.),
citing United States v. Caceres, 440 U.S. 741, 755 (1979), such
a violation does not automatically require an application of the
exclusionary rule and the suppression of evidence.
                                                                    13


to this was testimony that between 3:00 P.M. and 5:00 P.M. two

detectives remained in the neighborhood solely for the purpose

of "watching [the defendant's] residence."   When they saw the

defendant return at 4:15 P.M., the detectives summonsed the

other officers, including Burrows, back to the area.    Burrows

testified that after their arrival, "[n]othing" was happening:

"We were just waiting for transmissions from the detectives

watching the residence" (emphasis added).    About thirty minutes

later, around 5:00 P.M., the detectives alerted Burrows and the

other officers that the defendant was driving away from the

apartment building, and he was stopped shortly thereafter.

Given these facts, it is difficult to conclude that the police

had neither the time nor the opportunity to check the WMS to

confirm that the arrest warrant was still active.

     This failure contravened the clear policy mandate of the

Boston police department, set out in special order number 95-31,

dated June 2, 1995, that "[i]mmediately prior to arresting a

person for an outstanding warrant officers shall notify

Operations so that the computerized Warrant Management System

can be checked to determine if the outstanding warrant is still

active . . . ."7   As the motion judge found, "[i]f the police had


     7
       That police, indeed, routinely and expeditiously check the
warrant management system during a stop or an arrest is perhaps
most evident in those cases closely analogous to the case at
bar, namely, where police run such a check and are informed
                                                                14


properly followed this mandate, they would have learned that the

defendant was no longer on default and they were not legally

authorized to stop him and search his vehicle."

    That the police department has committed to writing, for

apparently the past nineteen years, the obligation of its

officers to check an arrest warrant immediately before making

the arrest is significant in this analysis.   It signals the

department's certainty that each officer has both the ability

and the technological tools to make such an inquiry.   The

requirement also impliedly acknowledges the rapidity with which

information in the database can change and the importance of

confirming such data before depriving an individual of his or



during the stop or the arrest that there is an active
outstanding warrant, only to discover later that the warrant had
been recalled, satisfied, or was otherwise invalid. See, e.g.,
Commonwealth v. Wilkerson, 436 Mass. 137, 139 (2002) (after
stop, driver arrested for operating after suspended license;
check of license revealed driver had valid license). See also
United States v. Mackey, 387 F. Supp. 1121 (D. Nev. 1975) (check
of hitchhiker's identification turned up warrant, later
determined to have been satisfied; evidence seized suppressed);
Ott v. State, 325 Md. 206, 209-211, 219, cert. denied, 506 U.S.
904 (1992) (computer check of individual seated in parked motor
vehicle incorrectly showed active warrant that was actually no
longer active, resulting in suppression of evidence obtained
during arrest); People v. Jennings, 54 N.Y.2d 518, 520 (1981)
(check during stop for traffic violations incorrectly turned up
active warrant, when in fact it had been satisfied, invalidating
arrest; evidence suppressed); People v. McElhaney, 146 Misc.2d
748 (N.Y. Sup. Ct. 1990) (license plate check of vehicle showed
it was stolen, but stop of vehicle twenty minutes later
invalidated when investigation showed police had failed to
update records that car had been recovered and returned to
owner; evidence suppressed).
                                                                   15


her liberty.    After all, the ease and speed with which a police

officer may confirm the validity of an arrest warrant is an

appropriate and easily executed buffer to protect the department

from subsequent claims of wrongdoing, to say nothing of an

individual's right to liberty.

    In these circumstances, where the police had ample time and

opportunity to comply with their own department's policy and

failed to do so, we cannot view the subsequent arrest of the

defendant on an invalid warrant as reasonable.     See People v.

Lent, 92 A.D.2d 941 (N.Y. 1983) (arrest made on basis of warrant

that had been satisfied eight hours earlier invalid; evidence

seized suppressed); State v. Trenidad, 23 Wash. App. 418 (1979)

(because arrest warrant had been quashed some thirty minutes

before arrest, court held arrest was invalid and suppressed

evidence).     See also, e.g., Jenkins v. Chief Justice of the

Dist. Court Dept., 416 Mass. 221, 229-231 (1993) (describing

well-known purpose for adoption of art. 14, and later Fourth

Amendment, as prohibiting unchecked control over liberty of

people by law enforcement officers through legal devices that

were accountable to no person).     Moreover, that the defendant

was arrested without a warrant or probable cause was clearly a

substantial violation and the discovery of the inculpatory

evidence was plainly prejudicial.
                                                                 16


     The order allowing the motion to suppress the evidence is

affirmed.8

                                   So ordered.




     8
       Because of the result we reach, we need not address the
defendant's claim related to the propriety of the inventory
search.
     AGNES, J. (concurring).   I agree with the majority that the

evidence seized from the trunk of the defendant's vehicle must

be suppressed because the police violated an explicit

departmental policy that requires them to check on the status of

a warrant "[i]mmediately prior to" an arrest by contacting their

operations center "so that the computerized Warrant Management

System [WMS] can be checked to determine if the outstanding

warrant is still active."   Ante at    , quoting from Boston

police department special order number 95-31 (June 2, 1995).     I

also agree with the majority that a rule of reasonableness must

be applied, because in circumstances where the police have

neither sufficient time nor the opportunity to verify that an

arrest warrant is still outstanding, suppression of evidence may

have no deterrent effect on future police misconduct.   I write

separately because in my view, even apart from an explicit

departmental policy such as the Boston police department policy

involved in this case, the application of the exclusionary rule

in a case such as this may turn on whether and when the police

checked the WMS.1


     1
       The statute creating the WMS, G. L. c. 276, § 23A, as
amended through St. 2010, c. 256, § 123, reads, in its entirety,
as follows:

          "Whenever a court is requested to issue a warrant, the
     requesting authority shall provide to the court the
     person's name, last known address, date of birth, gender,
     race, height, weight, hair and eye color, the offense or
                                                          2



offenses for which the warrant is requested, a designation
of the offense or offenses as felonies or misdemeanors, any
known aliases and any such information as shall be required
for a warrant to be accepted by the criminal justice
information system maintained by the department of criminal
justice information services. A warrant which contains the
above information as provided by the individual for whom
the warrant is being issued shall not be nullified if such
information is later found to be inaccurate. An individual
or law enforcement official seeking issuance of a warrant
which does not contain all of the above required fields may
apply to the clerk of the court for an exemption from this
requirement. Such exemption shall be automatically granted
upon the request of any law enforcement official or agency.
No rights regarding the validity of a warrant may arise
from such requirements not being met. Such information and
the name of the police department responsible for serving
the warrant shall be entered by the clerk's office into a
computer system to be known as the warrant management
system. All warrants appearing in the warrant management
system shall be accessible through the criminal justice
information system, maintained by the department of
criminal justice information services to law enforcement
agencies and the registry of motor vehicles. The warrant
shall consist of sufficient information electronically
appearing in the warrant management system, and a printout
of the electronic warrant from the criminal justice
information system shall constitute a true copy of the
warrant. Such warrants appearing electronically in the
warrant management system and, in turn, in the criminal
justice information system, shall constitute notice and
delivery of said warrants to the police department
responsible for serving the warrant. Whenever a warrant is
recalled or removed, the clerk's office shall, without any
unnecessary delay, enter the same in the warrant management
system which entry shall be electronically transmitted to
the criminal justice information system.

     "No law enforcement officer, who in the performance of
his duties relies in good faith on the warrant appearing in
the warrant management system and, in turn, the criminal
justice information system, shall be liable in any criminal
prosecution or civil action alleging false arrest, false
imprisonment, or malicious prosecution or arrest by false
pretense.
                                                                    3


    "The exclusionary rule is a remedy to an illegal search;

its purpose is to deter police misconduct and preserve judicial

integrity by dissociating courts from unlawful conduct."

Commonwealth v. Nelson, 460 Mass. 564, 570-571 (2011).     There

are multiple sources of authority for the application of the

exclusionary rule under Massachusetts law.   In some

circumstances, evidence obtained by the police in violation of

the law must be excluded from use at trial based on the demands

of art. 14 of the Massachusetts Declaration of Rights.     See,

e.g., Commonwealth v. Ford, 394 Mass. 421, 426-427 (1985)

(warrantless storage search of trunk of automobile conducted

without consent, probable cause, or exigent circumstances and

not conducted pursuant to standard procedures established by the

police department).   See also Commonwealth v. Lora, 451 Mass.

425, 438-440 (2008) (exclusionary rule applicable to evidence

seized after traffic stop based on racial profiling in violation

of constitutional right to equal protection of laws).    In other



         "The issuing court shall provide notification, either
    before the issuance of a default or arrest warrant or no
    later than 30 days after the issuance of the warrant, to
    the subject of the warrant. Such notice shall contain the
    following information: the name and address of the issuing
    court, a description of the charge for which the warrant is
    being issued, a description of the method by which the
    individual may clear the warrant and a summary of the
    consequences the individual may face for not responding to
    the warrant. Such notice shall be deemed satisfactory if
    notice is mailed to the address stated on the warrant."
                                                                   4


cases, the Supreme Judicial Court has stated that "the

application of the exclusionary rule is appropriate where it is

'inherent in the purpose of a statute which the government has

violated,' and that such a purpose is inherent in 'statutes

closely associated with constitutional rights.'"    Commonwealth

v. Hernandez, 456 Mass. 528, 532 (2010), quoting from

Commonwealth v. LeBlanc, 407 Mass. 70, 75 (1990).   See, e.g.,

Commonwealth v. Jones, 362 Mass. 497, 502-503 (1972) (evidence

of identification made at police station after intentional

refusal to grant defendant his statutory right, under G. L.

c. 276, § 33A, to use telephone was suppressed); Commonwealth v.

Upton, 394 Mass. 363, 366-369 (1985) (G. L. c. 276, § 2B,

governing affidavits in support of applications for search

warrants, requires exclusion of evidence seized pursuant to

search warrant issued without showing of probable cause in

application); Commonwealth v. White, 469 Mass. 96, 99-103 (2014)

(under G. L. c. 276, § 1, police are authorized to conduct a

search incident to arrest "only (1) for the purpose of seizing

evidence of the crime for which the arrest has been made in

order to prevent its destruction or concealment or (2) for the

purpose of removing any weapon the person arrested might use to

resist arrest or to escape"; evidence seized exceeding lawful

scope of search incident to arrest suppressed).    Further, the

Supreme Judicial Court recognizes that in some cases it is
                                                                    5


appropriate to apply the exclusionary rule to suppress evidence

based on the common law.   See Commonwealth v. Scalise, 387 Mass.

413, 417 (1982) (evidence seized pursuant to search warrant

supported by probable cause must be suppressed as matter of

common-law rule forbidding police officers from making

unannounced entry in absence of limited circumstances permitting

exception to knock and announce rule).

    The WMS replaced a centuries-old system, in which the

existence of an arrest or default warrant depended on whether an

authentic paper warrant issued by a court could be located, with

a new standard based on whether an entry exists in a statewide

electronic database.   The law enforcement community has embraced

the WMS not only because it provides speedy access to warrant

information around the clock, but also because it protects

police officers who rely on it from the risk of criminal

prosecution or civil liability from "false arrest, false

imprisonment, or malicious prosecution or arrest by false

pretense."   G. L. c. 276, § 23A.   See note 1, supra.   I take

judicial notice of the fact that electronic inquiries into WMS

are made by the police and other law enforcement officers and

agencies hundreds, if not thousands, of times each day when

motor vehicles are stopped, when suspicious persons are

encountered on the street, when persons are arrested, and in aid

of investigations.   Also, the WMS must be consulted by police
                                                                     6


officers, sheriffs, judges, and court personnel before a person

is released from custody.     See G. L. c. 276, § 29.   The

existence of the WMS and the ease with which it may be accessed

not only safeguards police officers, but also ensures that the

liberty of individuals is not unlawfully infringed, and protects

the public from the risk of injury or death from persons who

otherwise might be released from custody despite outstanding

warrants for serious crimes.    Because the use of the WMS by the

police is so frequent and extensive, in my opinion, when an

arrest is made pursuant to a warrant that turns out to have been

recalled, as in this case, and the police have failed to verify

within a reasonable time before the arrest whether the warrant

is outstanding (assuming that the police have both access to and

an opportunity to conduct such verification), the failure to

determine that the warrant no longer exists is not reasonable,

and the evidence obtained as a result of the arrest should be

suppressed.   See Commonwealth v. Upton, 394 Mass. at 367 n.4

("development of exclusionary rules in light of statutory

provisions is not uncommon in this Commonwealth").

    How to define what is a reasonable time prior to an arrest

within which the police must check the WMS is not a question

that need be answered here, as the determination may vary

depending on circumstances.    Nor need we decide whether checking

the system at 1:00 P.M. prior to an arrest at approximately 5:00
                                                                   7


P.M. that same day was in itself reasonable or unreasonable,

because the Boston police special order requiring that the

police check the WMS "[i]mmediately prior" to an arrest provides

a clear answer to that question in this case.
