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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.