# Petition for Writ of Certiorari — Massachusetts v. Derosia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 980

## Text

') Supreme Court, RSL
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38-353 AUS 23 1988
No. JOSEPH E, SPANIO“,
CLERK B.

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1988

COMMONWEALTH OF MASSACHUSETTS,
Petitioner

V .

LEO A. DEROSIA,
Respondent

PETITION FOR WRIT OF CrER*™ .ORARI
TO THE SUPREME JUDICIAL COURT
FOR THE COMMONWEALTH OF MASSACHUSETTS

JAMES M. SHANNON
Attorney General

LINDA G. KATZ

Assistant Attorney General
Criminal Bureau

One Ashburton Place

Boston, Massachusetts 02108
(617) 727-2200 ext. 2814
(Counsel of Record)

rita

QUESTIONS PRESENTED
1. Whether Steagald v. United States, 451
U.S. 204 (1981), requires suppression of a
weapon seized from a defendant upon his
arrest on probable cause in his mother's
home, where the defendant was merely a
visitor in the home, and where he opened
the door to the police in response to
their knock on the door.
2. Whether an arrest is warrantless
within the meaning of Payton v. Nev. ork,
445 U.S. 573 (1980), where the arresting
officers are in possession of an
outstanding warrant from another state.
3. Where a suspect is wanted in New
Hampshire for bail jumping and drug and
weapons offenses, is probably armed, and
may be forewarned of the arrival of the
police, whether it is unreasonable for the
police to arrest him inside a dwelling in
Massachusetts without first obtaining a

Massachusetts warrant.

TABLE OF CONTENTS

OPTIONS BEE. 2c ccc cc ccc cere cw ensscecs 1
JURIGDICTION. . cc cccscecvccsescccsecssseces 2
CONSTITUTIONAL PROVISION

AND STATUTE INVOLVED. ......ccccsccees 2
STATEMENT OF THE CABE... cc cccccescccccces 3
REASONS FOR GRANTING THE WRIT............ 8

I.

II.

SER.

THE DECISION BELOW, WHICH
REQUIRES THE EXCLUSION OF
EVIDENCE IN THE ABSENCE OF A
SHOWING THAT THE DEFENDANT'S
PRIVACY INTERESTS WERE INFRINGED,
IS IN CONFLICT WITH DECISIONS OF
THEE GUUME s cee ces ececcsecesseces 8

THIS COURT SHOULD DECIDE WHETHER
AN OUTSTANDING WARRANT FROM
ANOTHER STATE SATISFIES THE
FOURTH AMENDMENT WARRANT

PRBAPU AOU 5 ec ccceccsesesecoce 12

THIS COURT SHOULD ADOPT AND APPLY
GUIDELINES FOR DETERMINING
WHETHER EXIGENT CIRCUMSTANCES
JUSTIFY A WARRANTLESS ARREST IN

A DWELLING

CERES wesc ce es esses eeeseeseseeeeers

PEE 66660056 soe dea wesesesecsrsess

CE Se 6s Gh eS GS ba Cae KR eS Ee OSES ESS

TABLE OF AUTHORITIES

Cases

Commonwealth v. Derosia
402 Mass. 284,
SIS O.. oe GOO CIOS) . nw cc ce ceus passim

Commonwealth v. Sawyer
389 Mass. 686,

Gn Wie ee CAOGN) sock csedceacer 13
Dorman v. United States

oe se | Bl ee. CP ) eee 16
Payton v. New York

> ie Fy SR Bw > |) Ae passim

People v. Coto
199 Colo. 508,
Cae We ee PD oo ac ek ee beheausws 15

People v. Wolgemuth
69 I11.2d 154,
370 N.E.2d 1067 (1977),

cert. denied 436 U.S. 908 (1978)....14

Rakas v. Illinois
Se ees A ET OR gcc ctcssccces 9, 10
Rawlings v. Kentucky
ry XN SR tee ere 10
Vv

106 Idaho 358, 679 P.2d 635 (1983),
cert. denied, 464 U.S. 1041 (1984)..15

- iii -
State v. Payano
1 Pe ££: e Se sh) eer ree 14

state v. Reasoner
154 Ariz. 377, 742 P.2¢

ee MR og. Fe ee) errr ree ee 14
Steagald v. United States

Toe? we 2) OCR 5. 7, 2
United States v. Carrion

609 7.20 1120 them Cit. 29OT)< 6c cwas ll
United States v. Salvucci

reve Se eS Bll Rr ee oe cee ll
United States v. Santana

rope mS. |. reer ere 11
United States v. Standridge -

916 ©.26 1634 (id¢h Cit. 1967) ...623 16
United States v. Watson

re A ee . * reer rer ll

United States v. Whitten
706 7.20 i668 een CEE. 1963) 2.622600 )

Warden v. Hayden
387 U.S. 294 (1967)

Welsh v. Wisconsin
466 U.S. 740 (1984)

Statutes
28 U.8.€. SESS TER) 6a bss cc atv bees hieacvas

Mass. Gen. Laws, ch. 276,

No.

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1988

COMMONWEALTH OF MASSACHUSETTS,
Petitioner

Vv.

LEO A. DEROSIA,
Respondent

PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME JUDICIAL COURT
FOR THE COMMONWEALTH OF MASSACHUSETTS

OPINIONS BELOW
The opinion of the Supreme Judicial
Court below is reported at 402 Mass. 284,
522 N.E.2d 408 (1988), reproduced here as
Appendix A, page la. The opinion of the
District Court Department, Fitchburg
Division is unpublished. It is reproduced

here as Appendix B, page 4a.

» 2 «
JURISDICTION
The decision of the Supreme Judicial
Court was entered on May 4, 1988. The
Supreme Judicial Court denied a timely
petition for rehearing on June 3, 1988.
On July 29, 1988, Justice White signed an
order extending the time for filing this
petition for certiorari to and including
August 23, 1988. The jurisdiction of this
Court is invoked under 28 U.S.C. §1257(3).
CONSTITUTIONAL PROVISION
AND STATUTE [INVOLVED
U.S. Const. amend. IV
The right of the people to be
secure in their persons, houses,
papers and effects, against
unreasonable searches and seizures,
shall not be violated, and no warrant
shall issue, but upon probable cause,
supported by oath or affirmation, and
particularly describing the place to
be searched, and the persons or things

to be seized.

Mass. Gen. Laws, ch. 276, §20B

The arrest of a person may be
lawfully made also by any officer

=» 3-

authorized to serve warrants in
criminal cases, without a warrant,
upon reasonable information that the
accused stands charged in another
state with a crime punishable by death
or by imprisonment for a term
exceeding one year, but when so
arrested the accused shall be taken
with all practicable speed before a
court or justice authorized to issue
warrants in criminal cases and
complaint shall be made against him
under oath setting forth the ground
for the arrest as in the preceding
section; and thereafter his answer
shall be heard as if he had been
arrested on a warrant.

STATEMENT OF THE CASE

At approximately 8:00 p.m. on January
5, 1986, police in Gardner, Massachusetts
received a telephone call from a Keene,
New Hampshire police officer regarding the
respondent, Leo A. Derosia. The Gardner
Police were informed that Derosia, who
was wanted on a New Hampshire capias
warrant for bail jumping, and for firearm
and drug offenses, was at a certain

address in Gardner. The Keene police

provided a detailed description of

Derosia, and informed the Gardner police
that Derosia was armed with a .32 caliber
handgun, and probably had a police
scanner. A Gardner police officer was
dispatched to watch the house. When he
questioned two people whom he saw exit the
address, he was told that Derosia was
inside.

By approximately 9:00 p.m., after
further investigation, the police
contacted an assistant court clerk, who
advised them that it was not necessary to
obtain a Massachusetts warrant. The
police then formulated their plans to
effect the arrest. They were in
possession of the New Hampshire capias
warrant at this time.

Four or five officers went to the
address, which was the home of Derosia's
mother, and one knocked on the door to her

apartment. Derosia opened the door, and

the police immediately entered. Upon
frisking Derosia, the police found a .32
caliber handgun in his waistband. He was
taken into custody, and the next day a
complaint issued in Gardner District
Court, charging Derosia with unlawfully
Carrying a firearm, M.G.L. ch. 269, §10(a).
Prior to his trial in the jury
session, respondent filed a motion to
suppress the firearm. He claimed, inter
alia, that the arre t and search were
conducted in violation of the Fourth
Amendment to the United States
Constitution. The District Court judge
granted the motion. He held that “since
there were no exigent circumstances and
the defendant was inside the private
residence of another,” under Payton v. New
York, 445 U.S. 573 (1980) and Steagald v.
United States, 451 U.S. 204 (1981), a

warrantless arrest was barred by the

Fourth Amendment. (Findings of Fact and
Rulings of Law on Defendant's Motion to
Suppress) (Appendix B, 10a). The Court
further held that the New Hampshire
warrant had no effect in Massachusetts,
and that M.G.L. ch. 276, §20B, which
permits the warrantless arrest of
fugitives, would be unconstitutional if
construed as permitting a warrantless
arrest in a residence. Hence, the Court
refus d to so construe the statute.
(Appendix B, 15a, 18a).

The Court did not address the question
whether the defendant had a reasonable
expectation of privacy in his mother's
home. The sole facts bearing on this
issue as found by the Court were that the
defendant was a visitor in the house: “He
was not living there and did not intend to
sleep there that evening.” (Appendix B,

8a).

The Commonwealth was granted leave to

appeal the suppression order. On appeal,
it argued that Steagald v. United States,
supra, and Payton v. New York, supra, did
not apply because the defendant was merely
a transient guest with no reasonable
expectation of privacy in his mother's
residence. It further argued that the
arrest was lawful under the principles of
_Payton, because the arrest was based on a
New Hampshire indictment and capias
Hence, a neutral and detached
determination of probable cause had been
interposed between the police and the
defendant. Finally, the Commonwealth
argued that the arrest was justified by
exigent circumstances.

In a terse opinion, the Supreme
Judicial Court rejected the Commonwealth's
arguments. Specifically noting that it

was deciding the case under the United

States Constitution, the Court held that a
Massachusetts warrant was required, and
that the lower court therefore had

properly allowed the motion to suppress.

REASONS FOR GRANTING THE WRIT
| THE DECISION BELOW, WHICH REQUIRES THE

EXCLUSION OF EVIDENCE IN THE ABSENCE

OF A SHOWING THAT THE DEFENDANT'S

PRIVACY INTERESTS WERE INFRINGED, IS

IN CONFLICT WITH DECISIONS OF THIS

COURT.

In reaching the conclusion that the
Fourth Amendment requ:>red suppression of
the firearm, the Supreme Judicial Court
misconstrued the holding in Steagald v.
United States, 451 U.S. 204 (1981), and
therefore bypassed completely the question
whether respondent (the defendant below)
had any reasonable expectation of privacy
in his mother's home. In Steagald, this
Court held that law enforcement officers

may not legally search for the subject of

an arrest warrant in the home of a third

party without first obtaining a search

warrant. However, that case was based on
the Fourth Amendment rights of a resident
of the dweliing. Logically, Steagald
should have little, if any, bearing on the
question in this case, since respondent
was not a resident of his mother's home,
and since no search of the premises was
involved. Rather, the controlling
precedents from this Court include Payton

v. New York, 445 U.S. 573 (1980), and

Rakas v. Illinois, 439 U.S. 128 (1978).

In Payton v. New York, this Court set

forth the basic principle that, absent

exigent circumstances, the police may not
enter a suspect's own home to arrest him
or her without a warrant. In Rakas v.
Illinois it was acknowledged that one can
have a legitimate expectation of privacy
in a place other than his or her own

home. However, Rakas also makes clear

« 32° a
that the mere fact that one is
legitimately on the premises which have
been searched does not mean she or he can
claim the protection of the Fourth
Amendment. "The proponent of a motion to
suppress has the burden of establishing
that his own Fourth Amendment rights were
violated by the challenged search or
seizure.” 439 U.S. @© A434; i.

In the instant case, Derosia made
absolutely no showing that he had a
reasonable expectation of privacy at his
mother's house which was violated by the
police intrusion. The opinion of the
Supreme Judicial Court thus conflicts with
Rakas v. Illinois and other opinions of
this Court which reaffirm the principle
that “Fourth Amendment rights are personal

rights that may not be asserted

vicariously ..." Jd. at 133. See also,
e.g., Rawlings v. Kentucky, 448 U.S. 98,

elie S

of etc Shie

AV Bie e RI ton WoC

i § or

104 (1980); United States v. Salvucci,
448 U.S. 83 (1980).

Moreover, the state court failed to
consider the significance of the fact that
Derosia answered the door, thus
voluntarily exposing himself "to public
view, speech, hearing, and touch.” United
States v. Santana, 427 U.S. 38, 42 (1976).
In Santana, this Court held that a suspect
who was standing in the doorway to her
house when the police first sought to
arrest her had no expectation of privacy.
The court held that the doorway was a
public place. Thus, under United States
v. Watson, 423 U.S. 411 (1976), no warrant
was necessary. See also, e.g., United

States v. Carrion, 809 F.2d 1120, 1128
(Sth Cir. 1987); United States v. Whitten,

706 F.2d 1000, 1015 (9th Cir. 1983).

a 22 ws
II. THIS COURT SHOULD DECIDE WHETHER AN

OUTSTANDING WARRANT FROM ANOTHER STATE

SATISFIES THE FOURTH AMENDMENT WARRANT

REQUIREMENT.

In characterizing the arrest as
"warrantless," the Supreme Judicial Court
implicitly rejected the Commonwealth's
argument that the New Hampshire capias
satisfied the Fourth Amendment Warrant
requirement. It is submitted that this
decision is in conflict with at least the
reasoning, if not the precise holding of
Payton v. New York. The requirement of an
arrest warrant in Payton was intended “to
interpose a magistrate's determination of
probable cause between the zealous officer
and the citizen." 445 U.S. at 602. Here,
that function was performed by a New
Hampshire judicial officer. It offends
notions of comity and federalism to

conclude, as the Supreme Judicial Court

implicitly has, that federal constitu-

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tional principles require the additional

interposition of a Massachusetts judicial
officer before the suspect may be arrested
in a Massachusetts dwelling.

Further, it invites contradictory
results even with respect to the same
evidence. If the weapon seized from
Derosia were to be offered in a New
Hampshire prosecution, the courts of that
jurisdiction might well conclude upon a
motion to suppress that their own warrant
did satisfy the Payton requirement,
notwithstanding the fact that the arrest
took place outside that state's borders.

In ruling as it did, the Supreme
Judicial Court inexplicably failed to
follow even its own prior decision on this
very issue. In Commonwealth v. Sawyer,
389 Mass. 686, 452 N.E.2d 1094 (1983), the

Supreme Judicial Court held that where a

Suspect was arrested inside his hotel room

“a!

in Maine on the basis of information that
a warrant had been issued in New York,
"the arrest itself was not warrantless
within the meaning of Payton v. New York,
Supra.” 389 Mass. at 695, 452 N.E.2d at
1099.

The state courts of last resort in
Rhode Island and Illinois have also
concluded that when a suspect is arrested
in one state on the basis of a warrant
issued by another state, the Payton
warrant requirement has been met. State
v. Payano, 528 A.2d 721, 724-25 (R.I.
1987); People v. Wolgemuth, 69 I11.2d 154,

370 N.E.2d 1067, 1070 (1977), cert. denied

436 U.S. 908 (1978). See also State v.
Reasoner, 154 Ariz. 377, 742 P.2d 1363,
1366-67 (Ariz. App. 1987). However, the

Supreme Courts of Idaho and Colorado have

taken the contrary position that the

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“—\ 2

Payton warrant requirement is not met by
an out-of-state warrant. State v.
Bradley, 106 ldaho 358, 679 P.2d 635
(1983), cert. denied, 464 U.S. 1041
(1984); People v. Coto, 199 Colo. 508, 611
P.2d 969 (1980). Thus, this Court should
grant certiorari in order to resolve the
conflict amongst these various state

courts.

III. THIS COURT SHOULD ADOPT AND APPLY
GUIDELINES FOR DETERMINING WHETHER
EXIGENT CIRCUMSTANCES JUSTIFY A
WARRANTLESS ARREST IN A DWELLING.

The Supreme Judicial Court concluded
that there were no exigent circumstances
to justify the challenged entry. In so
ruling, it is submitted that the Court
below failed to apply an appropriate
standard. This case thus provides an

occasion, not present in Payton v. New
York, supra, “to consider the sort of

emergency or dangerous situation,

described ... as ‘exigent
;
circumstances,’ that would justify a

warrantless entry into a home for the

purpose of .. . arrest." Id., 445 U.S.

at 583. |
In Dorman v. United States, 435 F.2d

385, 392-93 (D.C.Cir. 1970), the en banc

United States Court of Appeals for the

District of Columbia Circuit set forth a

number of factors it deemed material to

making the determination whether a |

warrantless arrest in a dwelling is
reasonable. See also, e.g., United States
v. Standridge, 810 F.2d 1034, 1037 (llth
Cir. 1987). In Welsh v. Wisconsin, 466
U.S. 740, 752 (1984), this Court
acknowledged that at least the first
factor set forth in Dorman - gravity of
the offense - was an important

consideration in the constitutional

analysis. This case provides an

i.

opportunity for this Court to address the
other Dorman factors, and thereby provide
more specific guidelines for the lower
courts.

In this case, application of the
standard adopted in Dorman shows that the
search was indeed reasonable. Derosia was
a fugitive, wanted for firearm and drug

charges, as well as bail jumping. Thus,

. there was a substantial risk of flight.
The police had ieé on to believe that he
) was armed, and that he might be forewarned
of their arrival, either by a telephone
call from the visitors who had been
questioned by the police, or through use
of a police scanner. These various
factors would lead reasonable, prudent law
) enforcement officers to believe that a
failure to act with haste would increase
the risk of danger not only to themselves,

but possibly to the public at large if it

|

became necessary to make the arrest on the
street. “The Fourth Amendment does not
require police officers to delay in the
course of an investigation if to do so
would gravely endanger their lives or the
lives of others." Warden v. Hayden, 387
U.S. 294, 298-99 (1967). Where the police
have probable cause to believe that a
suspect is armed, that fact alone ought to
justify a decision to act with all due
hast

Further supporting a finding of
reasonableness is the manner in which the
entry occurred. The police used no force,
and conducted no search of the house
itself. They acted promptly upon receipt
of the information. In these circum-
stances, it is submitted that the arrest
without a Massachusetts warrant was not

unreasonable under the Fourth Amendment.

- 19 -
CONCLUSION
For the foregoing reasons, the
petition for writ of certiorari to review
the judgment of the Supreme Judicial Court
of the Commonwealth of Massachusetts
should be granted.

Respectfully submitted,

: JAMES M. SHANNON
: Attorney General

LINDA G. KATZ

Assistant Attorney General
‘ Criminal Bureau

One Ashburton Place

; Boston, Massachusetts 02108
(617) 727-2200 ext. 2814
(Counsel of Record)

PP ee ee a

APPENDIX A

COMMONWEALTH vs. LEO A. DEROSIA.

Worcester. April 6, 1988. — May 4, 1988.

Present: Hennessey, C.J., Liacos, Asrams, Notan, & Lyncu, JJ.

Search and Seizure, Home of third person. Constitutional Law, Search and
seizure.

Where police officers made a warrantless entry into the dwelling of a sus-
pect’s mother in which he was a lawful visitor, frisked the suspect,
found a pistol in his waistband, and then arrested him, the police activity,
in the absence of any showing of exigent circumstances or consent, was
not justified under ihe Fourth Amendment of the Federal Constitution,
and consequently, the judge properly allowed a motion to suppress as
evidence the firearm seized by the police. [286] Ff

COMPLAINT received and sworn to in the Gardner Division
of the District Court Department on January 6, 1986.

On appeal to the jury session of the Fitchburg Division, a
pretrial motion to suppress evidence was heard by Thomas F.
Sullivan, Jr., J.

An application for an interlocutory appeal was allowed by
Wilkins, J., in the Supreme Judicial Court for the county of
Suffolk, and the appeal was reported by him.

Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.

Peter K. Binder for the defendant.

NOLAN, J. As a result of a search and a seizure of a firearm
from his person on January 5, 1986, the defendant was found
guilty at a bench trial of unlawfully carrying a firearm. He
appealed to the jury session, and before trial, he filed a motion
to suppress the firearm. The judge allowed the motion. The
Commonwealth appealed and a single justice of this court
allowed the Commonwealth’s application for interlocutory ap-
peal. We affirm.

- 2a =

We have the benefit of the motion judge’s thoughtful findings
of fact from which we learn that an officer of the police depart-
ment of Keene, New Hampshire, received a telephone call
from an anonymous informant on January 5, 1986. The caller
told the police officer that the defendant was in the area and
armed with a .32 caliber handgun. This police officer knew
that a capias had been issued on a New Hampshire indictment
for arrest of the defendant for his defaulting on a bail bond,
and for weapons and narcotics offenses. Armed with another
report as to the defendant’s location, this police officer tele-
phoned a home in Gardner, Massachusetts. The telephone was
answered by the defendant (the officer recognized his voice).
A check of the telephone records indicated that the residence
called was that of the defendant’s mother in Gardner.

The police officer in Keene then telephoned a police officer
in Gardner and told him that the defendant was in Cardner, in
his mother’s home, was armed, probably had a police s: .nner,
and that he was wanted on a capias in New Hampshire for a
weapons offense. He told the Gardner police officer that the
defendant may be operating a motor vehicle with Texas regis-
tration plates, and furnished a detailed description of the de-
fendant. The Gardner police officer confirmed the existence
of the weapons charge, as well as the default on the bail bond
and his outstanding narcotics offenses by using a computer
terminal linked to the National Crime Information System.
The Keene police department sent the capias to the Gardner
police and, on receipt of it, the Gardner police went to the
residence of the defendant’s mother. Two persons emerged
from the residence and drove away. A police officer stopped
them and asked whether the defendant was present in his
mother’s home. The driver acknowledged the defendant’s pres-
ence in the house, but he said that he did not know whether
the defendant was armed at the time.

This police officer then telephoned an assistant clerk of the
local District Court and told him of the defendant’s location
and the capias. The assistant clerk advised the police officer
that a warrant for the defendant’s arrest was not necessary.
Several police officers went to the residence of the defendant’s

- 3a -

mother. One police officer knocked on the door. The defendant
responded. The police entered the apartment, frisked the de-
fendant, found a pistol in his waistband, and then arrested him.

We are deciding this case under the United States Constitu-
tion under which, absent exigent circumstances, police may
not make a warrantless entry into a person’s dwelling to arrest
him or to seize evidence. Payton v. New York, 445 U.S. 573,
587-589 (1980). Commonwealth v. Forde, 367 Mass. 798,
800 (1975), and cases cited. It is true that the defendant was
not in his own dwelling. He was a visitor lawfully in the home
of his mother. Our law is clear that in these circumstances,
absent exigency or consent, a search or arrest warrant must
first be obtained before police may enter the home of a third
person in search of a suspect. Steagald v. United States, 451
U.S. 204, 205-206 (1981).

In this case, there were no exigent circumstances to justify
a warrantless entry into the dwelling of the defendant’s mother.
The provision for a warrantless arrest in G. L. c. 276, § 20B
(1986 ed.),' does not advance the Commonwealth’s position
because the statute does not authorize an entry into a dwelling
to effectuate a warrantless arrest.

The judge was correct in allowing the defendant’s motion
to suppress the firearm seized on his person in his mother’s
home.

So ordered.

‘General Laws c. 276, § 20B provides: “The arrest of a person may be
lawfully made also by any officer authorized to serve warrants in criminal
cases, without a warrant, upon reasonable information that the accused
stands charged in another state with a crime punishable by death or by
imprisonment for a term exceeding one year, but when so arrested the
accused shall be taken with all practicable speed before a court or justice
authorized to issue warrants in criminal cases and complaint shall be made
against him under oath setting forth the ground for the arrest as in the
preceding section; and thereafter his answer shall be heard as if he had been
arrested on a warrant.”

= “eo =

APPENDIX B
COMMONWEALTH OF MASSACHUSETTS

WORCESTER, ss. District Court
Department
Fitchburg Division
Six Person Jury Session
No. 8616/JC/0890-A

COMMONWEALTH
Findings of Fact and
Rulings of Law on
Defendant's Motion

to Suppress

Vv.

LEO A. DEROSIA

~~ NS ee Se

On January 5, 1986, Officer Edward
Gross of the Keene, New Hampshire Police
Department received a phone call from an
informant in the Keene area. The
informant told the officer that the
defendant was in town and was in
possession of a 32 caliber handgun. The
officer knew that an active capias had
been issued for the defendant's arrest.
The capias was for firearms, drug, and
bail jumping charges. The officer also

knew the defendant from prior dealings and

had arrested him for sale of a controlled
substance. Officer Gross read another
officer's report on additional alleged
Criminal activity of the defendant. The
officer made a telephone call to a phone
number in Gardner, Massachusetts and heard
the voices of a woman and a man and
recognized the defendant's voice. The
officer did not identify himself and
feigned trouble with the connection.

After the call, the telephone company
provided the officer with the address in
Gardner where the phone number was
located. At about 8:00 p.m., the officer
telephoned the Gardner Police Department
and spoke to them about the defendant.
Among other information, the officer told
the Gardner officer, Officer Janowski,
that defendant was wanted on a weapons
charge, was carrying a 32 caliber handgun,

and probably had a police scanner. The

- §a -

officer asked the Gardner officer to run a
check on the defendant on his National
Crime information terminal. The Gardner
officer, employing his computer, verified
that defendant was wanted in Keene for
narcotics, weapons, and bail jumping
charges.

Officer Gross provided a detailed,
accurate description of the defendant, and
told Officer Jankowski that he might be
operating a motor vehicle with a Texas
registration plate.

Officer Gross had the original of the
Keene capias relayed through various
police departments, to the Gardner Police
station. Officer Arsenault of the Gardner
Police Department was dispatched to watch
260 Main Street, the house in which the
defendant had answered the phone earlier.

At about 9:00 p.m., Officer Arsenault saw

two people exit the 260 Main Street

address and drive from the area. The
officer stopped the motor vehicle and
questioned the driver who told the officer
that he had just seen the defendant in his
mother's home but did not know if the
defendant was in possession of a handgun.

Officer Jankowski contacted Assistant

Clerk Arthur Boudreau at about 9:00 p.m.,
id advised him of the situation. Mr.
Boudreau advised the officer that a
Massachusetts warrant would not be
necessary.

At this time, the Keene capias arrived
at the station and plans were formulated
to arrest the defendant. The house in
question was still under surveillance.
Four or five officers went to the location
and surrounded the house. Officer St.
Laurent knocked on the door, defendant
opened the door, and the officers entered

the apartment. Officer St. Laurent

frisked defendant's waist area and found
the pistol. Then Officer St. Laurent
began questioning defendant and kept
asking him if he was Leo Derosia. After a
few minutes of questioning, the defendant
was arrested inside the apartment.

The defendant was visiting at his
mother's house at the time. He was not
living there and did not intend to sleep
there that evening.

The Commonwealth argues that Chapter
276 of the Massachusetts General Laws
provides authority for a warrantless entry
into the residence of another to arrest
the defendant. The Commonwealth asks the
court to rule that M.G.L. ch. 276, 20B
allows an arrest without an arrest or
search warrant in any place including

one's own residence or the residence of

another. Chapter 276 provides:

M.G.L. Ch 276, §20A

Whenever any person within this
commonwealth shall be charged, on the
oath of any credible person before any
court or justice in this commonwealth
authorized to issue warrants in
criminal cases, with the commission of
any crime in any other state,
including cases arising under section
thirteen, or with having been
convicted in such other state and
having escaped from confinement or
having broken the terms of his bail,
probation or parole, or whenever
complaint shall have been made before
any such court or justice in this
commonweal'h setting forth, on the
affidavit vf .ny credible person in
another state, that a crime has been
committed in such other state and that
a person has been charged in such
state with the commission of a crime,
including cases arising under section
thirteen or with having been convicted
of a crime in that state and having
broken the terms of his bail,
probation or parole, and is believed
to be in this commonwealth, such court
or justice may issue a warrant
directed to any officer authorized to
serve warrants in criminal cases
commanding him to apprehend the person
named therein, wherever he may be
found in this commonwealth, and bring
him before the same or any other such
court or justice convenient of access
to the place where the arrest may be
made to answer the charge or complaint
and affidavit; and a certified copy of
the sworn charge or complaint and
affidavit upon which the warrant is
issued shall be attached to the
warrant.

EEO EO

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M.G.L. Ch 276, §20B

The arrest of a person may be
lawfully made also by any officer
authorized to serve warrants in
Criminal cases without a warrant, upon
reasonable information that the
accused stands charged in another
state with a crime punishable by death
or by imprisonment for a term
exceeding one year, but when so
arrested the accused shall be taken
with all practicable speed before a
court or justice authorized to issue
warrants in criminal cases and
complaint shall be made against him
under oath setting forth the ground
for the arrest as in the preceding
section; and thereafter his answer
shall be heard as if he had been
arrested on a warrant.

Section 20A and 20B of Chapter 276 are

Similar to Sections 13 and 14 of the

Uniform Criminal Extradition Act.
Since there were no exigent

Circumstances and the defendant was inside

the private residence of another, a
warrantless entry into this dwelling to
arrest a defendant for any crime committed

in this Commonwealth would have been

barred by the Fourth Amendment. Steagald

- lla -

v. United States, 451 U.S. 204 (1981);
Payton v. New York, 445 U.S. 573 (1980);
United States v. Santana, 427 U.S. 38
(1976); Commonwealth v. Forde, 307 Mass.
798 (1978); Commonwealth v. Huffman, 385
Mass. 122 (1982).

In Payton, the Supreme Court, in
strong language, struck down a New York
statute which allowed the police o enter
a private residence without a warrant to
make a felony arrest. There was probable
cause to arrest in each case. Payton was
wanted for murder and Riddick was sought
for two armed robberies, but in both cases
the police went to their homes without an
arrest warrant to arrest them for the
above mentioned crimes. The police broke
into Payton's home, but at Riddick's
residence, his son answered the door and
the police immediately saw Riddick sitting

therein. The court held that the statute

was unconstitutional on the grounds that
the Fourth Amendment prohibits the police
from making a warrantless and
nonconsensual entry into a suspect's home
to make a felony arrest. The reasons for
upholding warrantless arrests in a public
place, United States v. Watson, 423 U.S.
411 (1976), do not apply to warrantless
invasions of the pi vacy of the home. In
Payton, supra at 588, the court summarized
its position:
To be arrested in the home involves
not only the invasion attendant to all
arrests but also an invasion of the
Sanctity of the home. This is simply
too substantial an invasion to allow
without a warrant, at least in the
absence of exigent circumstances, even
when it is accomplished under
statutory authority and when probable
cause is present. United States v.
Reed, 272 F.2d 412, 423 (1978).
In Steagald, the Supreme Court held
that, absent exigent circumstances or

consent, law enforcement officers could

not legally search for the subjects of an

- l3a -

arrest warrant in the home of a third
party, without first obtaining a search
warrant. In Steagald, a DEA agent was
contacted in Detroit about a federal
fugitive, Ricky Lyons, wanted on drug
charges. An informant told the agent that
Lyons was now in Atlanta and can be
contacted at a certain phone number. This
information was relayed to another agent
in Atlanta, who discovered that Lyons was
the subject of an arrest warrant valid at
that location. The agent, having secured
an address from the telephone company,
went to Steagald's home to arrest Lyons,
and searched this home looking for Lyons.
Cocaine belonging to Steagald was found
during the search for Lyons. The narrow
issue before the court was whether an
arrest warrant, as opposed to a search

warrant, was adequate to protect the

Fourth Amendment interests of persons not

- l4a -

named in the warrant, when their homes are
searched without their consent and in the
absence of exigent circumstances. The
Supreme Court in no uncertain terms
condemned the use of an arrest warrant in
such a case because an arrest warrant, to
the extent that it is invoked as authority
to enter the homes of third parties,
suffers from the same infirmitie;s « a
general warrant and writ of assistance
which were condemned by the framers of the
constitution. An arrest warrant specifies
only the object of the search and leaves
to the unfettered discretion of the
police. [sic] The decision as to which
particular homes should be searched. The
Supreme Court considered the practical
problems such as the inherent mobility of
persons as opposed to objects that might
arise if the police are required to obtain

search warrants. However, the Supreme

eS A Se,

- 15a -

Court was of the opinion that the
Constitutional Rights to be protected
outweighted [sic] the practical problems
police might encounter.

Whatever practical problems remain,
however, cannot outweigh the
constitutional interests at stake.
Any warrant requirement impedes to
some extent the vigor with which the
Government can seek to enforce its
laws, yet the Fourth Amendment
recognizes that this restraint is
necessary in some cases to protect
against unreasonable searches and
seizures. We conclude that this is
such a case. The additional burden
imposed on the police by a warrant
requirement is minimal. In contrast,
the right protected - that of
presumptively innocent people to be
secure in their homes from
unjustified, forcible intrusions by
the Government - is weighty. Thus, in
order to render the instant search,
reasonable under the Fourth Amendment,
a search warrant was required.

The New Hampshire arrest warrant was
only valid within the jurisdiction of the
sovereignty from which it was issued.
Cohen v. Saddlemire, 26 F. Supp. 27 (1939)

(State process in Massachusetts does not

extend to a sister state); Ex Parte

Graves, 236 Mass. 493 (1920); Mitchell v.
Dexter, 244 F. 926 (1917) (Wisconsin Court
without authority to issue a writ for
arrest of Dexter in Massachusetts); Palmer
v. Thompson, 20 App. D.C. 273; People v.
Martin, 76 N.Y.S. 953, 955 (Statutes of
one state have, ex proprio vigore, no
force or effect in another); Sullivan v.
Wentworth, (1884) [sic]; Commonwealth
v. Foster, 1 Mass. 488 (1805). In this
Commonwealth, an arrest warrant must be
specifically directed to some officer or
class of officers authorized to serve
Criminal process in Massachusetts. Ex
Parte Graves, supra; Commonwealth v.
Foster, supra; MGL c. 276, 23; MGL c. 218,
37; Mass. R. Crim. P. 6(c)(1l).

The New Nemeehire arrest warrant plus
the other information the police possessed

clearly provided grounds for the issuance

of a search warrant pursuant to MGL c.

276, §1-3 and an arrest warrant pursuant
to MGL c. 276, 20A. A Clerk of the
District Court has authority to issue a
warrant under MGL 276, 20A. Thompson v.

] New ., 279 Mass. 176

(1932). The function of a fugitive
.warrant issued under Section 13 of the
Uniform Criminal Extradition Act or MGL c.
276, 20A is to provide for the arrest and
detention of an alleged fugitive pending
the institution of an extradition
proceeding. State ex Rel, Wells v.
Hanley, 27 N.W.2d 373 (1947). The
issuance of a fugitive warrant is a
separate proceeding from the issuance of a
rendition warrant by the governor for the
extradition of a person to another state.
State ex Rel. Wagner v. Hedman, 195 N.W.2d
420 (1972); In Re Chenowith, 432 P.2d 132
(1967).

- 18a -

The enactment of 20A demonstrates that
the legislature did not intend that every
fugitive arrest be made without a
warrant. This court is mindful of the
canons of statutory construction that a
statute must be construed so as to avoid
not only the conclusion that it is
unconstitutional but also grave doubts
upon that score, and that all rational
presumptions are made in favor of the
validity of every legislative enactment.
Alegata v. Commonwealth, 231 N.E.2d 201
(1967). Yet there is no escape from the
conclusion that 20B would be
unconstitutional if it allowed the
warrantless arrest of a fugitive in a
residence absent exigent circumstances,
therefore, it is the opinion of this court
that MGL c. 276, 20B must be governed by
the limitations imposed by Payton and

Steagald. Thus, a warrantless arrest

- 19a -

absent exigent circumstances, such as we
have in the instant case, violates the
Fourth Amendment. Such an interpretation

of 20B will not hamper law enforcement.

Steagald v. United States, supra at 1653.

The problems inherent in interstate cases
were present in Steagald and are
encountered daily by federal agents.
Fugitive arrests without a warrant under
20B will still be permitted in any place
outside of a residence, United States v.
Watson, supra, and inside of a residence
if exigent circumstances exist or if the
police are in hot pursuit of a fugitive.
This court need not decide today whether
an arrest warrant would have been
sufficient in the present case since the
defendant was arrested prior to any search
and the revolver was found on his person
and not as a result of a search of the

house.

- 20a -

The defendant's warrantless arrest
inside his mother's home and the
subsequent seizure of the revolver were
illegal. Accordingly, the Motion to

Suppress is allowed.

ZsZ
Thomas F. Sullivan, Jr.
Associate Justice

Dates:[{sic] December 26, 1986

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0044%3A1. Public record. Not legal advice.