Com. v. Hecox

• Citation: 619 N.E.2d 339,35 Mass.App.Ct. 277
• Decision Date: 07 September 1993
• Docket Number: No. 92-P-846,92-P-846
• Parties: COMMONWEALTH v. Arthur S. HECOX.
• Court: Appeals Court of Massachusetts

Page 339

619 N.E.2d 339

35 Mass.App.Ct. 277

COMMONWEALTH v. Arthur S. HECOX.

No. 92-P-846.

Appeals Court of Massachusetts Bristol.

Argued May 17, 1993.

Decided Sept. 7, 1993.

Daniel L. Viveiros, Fall River, for defendant.

John P. Letourneau, Asst. Dist. Atty., for the Com.

Before DREBEN, KAPLAN and IRELAND, JJ.

DREBEN, Justice.

Convicted of trafficking in cocaine, the defendant appeals, claiming that evidence of the cocaine seized from him should have been suppressed. Because we agree with his contention, we reverse his conviction. ¹

We take our facts from the motion judge's findings, supplemented interstitially by a few details from the testimony of Officer LaPointe, the only witness at the hearing on the motion to suppress. On November 21, 1988, Officer LaPointe, a member of the Fall River Police Department, interviewed a woman who told him that she had had an argument in a bar with a person named Scott, that he had struck her in the face, had chased her through some yards in the area, and had fired a shot at her. She knew the assailant by the first name of "Scott" and knew that he drove a maroon Lincoln with a partial plate number of "411." When shown some photographs, she identified Arthur Scott Hecox as her assailant.

As a result of his investigation, Officer LaPointe filed a report requesting that a complaint be sought and that an arrest warrant issue for Hecox for the offense of assault with intent to murder, together with two lesser complaints. The docket suggests that the complaint issued, together with a warrant, on November 21, 1988. ² We next quote from the judge's findings:

"By some means not clear from the evidence offered, the defendant became aware of the complaint sought against him. He appeared in the District Court [on November 22, 1988] where he was arraigned and released on personal recognizance before the warrant had actually issued. It is apparently the procedure in Fall River District Court for the 'court liaison officer' to request complaints and warrants. The information of the arraignment of this defendant was not conveyed to Officer LaPointe.

"On the early morning of November 27, 1988, shortly after coming on watch, Officer LaPointe spotted the maroon Lincoln with the plate designation, in part, of '411.' Officer LaPointe concluded that the defendant was across the street in a bar, and he anticipated that the defendant would be exiting the bar and going to his automobile about 1:00 or 1:30 a.m. Officer LaPointe called for backup assistance and, subsequently, two additional cruisers appeared and joined Officer LaPointe in his observation location at the end of the block in which the car was parked.

"The officers in the cruisers observed the defendant and his girlfriend come out of the bar, walk across the street and enter the maroon Lincoln. At this time, the officers converged on the maroon Lincoln and blocked any possibility of exit. Officer LaPointe got out of his vehicle and approached the maroon Lincoln. He noticed the driver holding a white bag in an open position up to his face. As Officer LaPointe approached the operator of the Lincoln, he put the bag down on the floor of the car. ³ At that point, Officer LaPointe unholstered his service revolver and, pointing it at the operator of the vehicle, instructed him to put his hands on the steering wheel. He then opened the door of the car and instructed the operator to 'Get out.' The operator of the maroon Lincoln was the defendant, Arthur S. Hecox, a/k/a Scott Hecox. Officer LaPointe then positioned the defendant with his hands on the roof of the maroon Lincoln and conducted an initial patdown for weapons.

"With the defendant out of the vehicle, his girlfriend exited the vehicle on the passenger side. Officer LaPointe observed a bag of white powder on the floor of the driver's side. It appeared to him to be the same white bag that had been held up to the defendant's face. Officer LaPointe, as a result of the Police Academy, in-house training and his experiences as a police officer, felt with reasonable certainty that the white powder was cocaine. It appears that he simultaneously ⁴ learned that the defendant had been to court and had been released on personal recognizance and that the warrant, if ever issued, was not now outstanding. Officer LaPointe, however, realized that he had a 'possession with intent to distribute,' given the quantity of white powder, and placed the defendant under arrest for possession with intent to distribute."

Based on these findings, the judge ruled that LaPointe was under a reasonable, good faith belief that an arrest warrant was outstanding, that he could briefly detain Hecox, and that, when he saw the cocaine in plain view, he could seize the drugs.

As we shall shortly discuss, we do not think the good faith exception to the exclusionary rule of the Fourth Amendment to the United States Constitution applies in these circumstances. The problem arises because LaPointe's information at the time of the defendant's initial detention did not accurately reflect the current situation known to other law enforcement authorities. Hecox's voluntary appearance at the District Court on November 22, 1988, had rendered the arrest warrant, if it had issued, obsolete at the time that LaPointe on November 27 detained and subsequently arrested the defendant. ⁵ The judge's findings imply either that Officer LaPointe did not check with his communications office or he received incorrect data until the time he arrested the defendant.

In the analogous situation of outmoded computer records, courts have expressed their serious concern with police action based on incorrect information. See, e.g., Ott v. State, 325 Md. 206, 219, 600 A.2d 111, cert. denied, 506 U.S. 904, 113 S.Ct 295, 121 L.Ed.2d 219 (1992) (allowing "outdated, inaccurate information to remain in the computer ... plac[es] citizens at risk of being deprived of liberty, without legal basis"). See also United States v. Mackey, 387 F.Supp. 1121, 1124 (D.Nev.1975):

"Because of the inaccurate listing in the NCIC computer, defendant was a 'marked man' for the five months prior to his arrest, and, had this particular identification check not occurred, he would have continued in this status into the indefinite future. At any time, as demonstrated by this situation, a routine check by the police could well result in defendant's arrest, booking, search and detention."

We have not been directed to any Massachusetts case considering a similar situation, and we have found none. The most pertinent authorities elsewhere deal primarily with police reliance on outdated computer information, and, although it is not clear that a computer was involved here, we consider those cases to be sufficiently comparable to the case at bar to be persuasive.

We first mention that at trial, or for that matter on appeal, the defendant did not make any separate State constitutional claims but, rather, without relying on any specific constitutional clause, argued that his original detention was a warrantless arrest without probable cause. In such circumstances, we consider the defendant's contentions under Federal standards. See Commonwealth v. Oakes, 407 Mass. 92, 98-99, 551 N.E.2d 910 (1990); Smith, Criminal Practice and Procedure § 2 (1993 Supp., at 1). ⁶

Since the motion judge relied on Officer LaPointe's good faith, we must consider whether LaPointe's actions come within the ambit of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the case holding that the exclusionary rule does not apply where police in good faith rely on a search warrant issued by a detached magistrate but ultimately found to be unsupported by probable cause. Most courts that have considered the question have held that Leon does not apply where an arrest is based on erroneous information supplied by the law enforcement authorities themselves. For example, in Ott v. State, 325 Md. at 211-219, 600 A.2d 111, where an arrest was made based on a warrant that had been satisfied seven days earlier, the Court of Appeals of Maryland, after analyzing authorities prior to and subsequent to Leon, as well as n. 24 ⁷ 468 U.S. at 923, 104 S.Ct. at 3420 of Leon itself, concluded that Leon did not allow law enforcement authorities to rely on an error of their own making. As noted in Albo v. State, 477 So.2d 1071, 1073 (Fla. App.1985), an important basis for Leon was the determination that the interest in deterring unlawful police conduct, which is the foundation of the exclusionary rule, is not implicated where the police rely on the erroneous finding of a neutral judge or magistrate. In that instance, there is no police illegality or misconduct to deter. Leon, supra 468 U.S. at 920-921, 104 S.Ct. at 3419. The situation is different where the arrest is based on erroneous information supplied by the law enforcement authorities, where there is police misconduct to deter. See State v. Gough, 35 Ohio App.3d 81, 519 N.E.2d 842 (1986). See also other cases holding the good faith exception of Leon inapplicable to uncorrected outdated police data, e.g., State v. Peterson, 171 Ariz. 333, 340, 830 P.2d 854 (App.1991), cert. denied, 506 U.S. 974, 113 S.Ct. 465, 121 L.Ed.2d 373 (1992); People v. Howard, 162 Cal.App.3d 8, 208 Cal.Rptr. 353 (1984); People v. Joseph, 128 Ill.App.3d 668, 83 Ill.Dec. 883, 470 N.E.2d 1303 (1984); People v. Mourecek, 208 Ill.App.3d 87, 152 Ill.Dec. 964, 566 N.E.2d 841 (1991); State v. Taylor, 468 So.2d 617 (La.App.1985). See also State v. Moore, 260 N.J.Super. 12, 16-17, 614 A.2d 1360 (1992), and People v. McElhaney, 146 Misc.2d 748, 751, 552 N.Y.S.2d 825 (N.Y.Sup.Ct.1990), rejecting an application of the good faith exception to an arrest made on a vacated warrant or an invalid stolen vehicle report because the highest courts in New Jersey and in New York have rejected the good faith exception on State constitutional grounds. Contra, however, is a Second Circuit...