MA: Arrest on recalled warrant suppressed under state const. where officers violated policy and didn’t recheck

Product of an arrest on a recently recalled warrant suppressed under the state constitution. The police had plenty of time to check the status of the warrant during the hours of surveillance looking for defendant and waiting for him to show up. They also violated their department’s own policy on checking the validity of warrants before attempting to execute them. Commonwealth v. Maingrette, 86 Mass. App. Ct. 691, 20 N.E.3d 626 (2014):

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WMS in the minutes immediately preceding the defendant’s arrest, they would have discovered that the arrest warrant was no longer valid.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 was no independent basis for the arrest. The Commonwealth contends, however, that the police reliance upon information obtained from the WMS about 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, 923 N.E.2d 36 (2010), the Commonwealth argues, probable cause existed at the time of arrest and exclusion is not an appropriate remedy.

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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, 619 N.E.2d 339 (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 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).

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Applying this analysis to the case at bar, the result is dictated by the circumstances preceding the arrest and the Boston police department policy. 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 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 .… ” As the motion judge found, “[i]f the police had 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.”