76 MASSAPPCT 684 - Commonwealth v. Chown

Trainor, J.

¶1(dissenting). I respectfully dissent from the majority opinion and begin by observing that

“[i]t is well settled that a police inquiry in a routine traffic stop must end on the production of a valid license and registration unless the police have grounds for inferring that ‘either the operator or his passengers were involved in the commission of a crime ... or engaged in other suspicious conduct’ (citations omitted).”

¶2 Commonwealth v. Robie, 51 Mass. App. Ct. 494, 497 (2001). See Commonwealth v. Torres, 424 Mass. 153, 158 (1997).

¶3The incident we are considering was a routine traffic stop in which the defendant produced a valid driver’s license. Once he provided a valid Canadian license, there was no basis for arrest under G. L. c. 90, § 21.1 Although he could not produce his *691registration (later determined to be valid), this fact does not take the incident out of the routine stop category, nor is the lack of registration an arrestable offense. See Robie, supraat 497 n.l (noting that the penalty for failing to have the registration on his person or in his vehicle was a limited fine, the court observed that “the Commonwealth does not argue that the failure of the defendant to have the registration with him takes this matter out of the ‘routine traffic stop’ cases”). See also G. L. c. 90, § 21.2

¶4Standard procedure in such a routine traffic stop would include the officer’s requesting the operator’s license and registration. If the officer has reason to believe that an out-of-State operator has been in the Commonwealth for more than thirty days, a copy of the operator’s insurance policy or insurance certificate should be requested. See G. L. c. 90, § 3, as amended through St. 2003, c. 46, §§ 88-95. An operator’s failure to have the insurance policy or certificate with him, however, like a failure to have the registration on one’s person or in one’s vehicle, neither is an arrestable offense nor does it provide probable cause to arrest.

¶5Officer Tynan believed that the defendant should have had a Massachusetts driver’s license because, in his words, “if you’re gainfully employed and say if you move here from Rhode Island, you’re here for over thirty days, you’re required to get a Massachusetts license.” Officer Tynan further testified that the thirty-day requirement was contained in c. 90 of the General *692Laws.3 This interpretation is not the law, however. General Laws c. 90, § 3,4 limits the operation of a motor vehicle owned by a nonresident (defined in G. L. c. 90, § 1, as the legal resident of another State or country) and registered in a different State or country to no “more than thirty days in the aggregate in any one year or, in any case where the owner thereof acquires a regular place of abode or business or employment within the commonwealth, beyond a period of thirty days after the acquisition thereof, except during such time as the owner thereof maintains in full force a policy of liability insurance ... at least to the amount or limits required in a motor vehicle liability policy as defined in section thirty-four A” (emphasis supplied).

¶6The majority cites Jenkins v. North Shore Dye House, 277 Mass. 440, 443 (1931), as authority for the argument that maintaining a residence here requires the acquisition of a Massachusetts driver’s license. Jenkins, however, was decided pursuant to an earlier version of the statute which required the acquisition of a Massachusetts driver’s license within thirty days of arriving in the Commonwealth. See G. L. c. 90, § 1, as amended through St. 1924, c. 189.5 The law was changed shortly before Jenkinswas decided, and the new definition of “non-resident” required the acquisition of a Massachusetts driver’s license within thirty days of estabhshing a legal residence within the State. See St. 1931, c. 142, § 1.6 This same act7 rewrote §§ 3 and 10 of G. L. c. 90, so that there would be no time limit imposed on the acquisition of a Massachusetts driver’s hcense for a nonresident (i.e., a legal resident of another State or country, note 6, supra) holding a valid driver’s hcense from the State or country of his legal resi*693dence, G. L. c. 90, § 10,8 or on the acquisition of a Massachusetts registration for a vehicle registered in the State or country where the owner-operator was a legal resident so long as the nonresident maintained a level of automobile insurance equivalent to that required by a resident driver, G. L. c. 90, § 3. These two provisions have remained, in all aspects pertinent here, unchanged since 1931.9 It appears that the Legislature determined that the protection of our citizens is best accomplished by a policy and a statutory scheme that requires adequate levels of liability insurance for anyone operating a vehicle under authority of an out-of-State driver’s license and registration for more than thirty days within the Commonwealth. The statutory scheme neither asks nor expects police officers to make field determinations of a driver’s legal residence. Such determinations are best made upon the presentation of more complete and competent evidence in a court of law. In these situations, however, a police officer is allowed, and expected, to request evidence of the required insurance coverage and may issue a citation and summons if such evidence is not produced.

¶7Here, the officer never asked the defendant to produce the insurance certificate10 at the scene, and the defendant had no obligation to volunteer the information. Had the officer asked for the certificate, and the defendant been unable to produce it, this would have only created an evidentiary presumption at a trial (usually involving an automobile accident), see G. L. c. 90, § 3,11 not probable cause to arrest without a warrant.

¶8The majority also cites dicta from Commonwealth v. Caceres, *694413 Mass. 749, 753 (1992), as being instructive, if not dispositive. Caceres, however, is neither dispositive nor even applicable to this case for a number of reasons. First, in making the statement quoted by the majority here, the court in Cacereswas deciding a different question from that at issue in this case. The question in Cacereswas only whether the police officer, who had already arrested the defendant in that case for other reasons, made a reasonable decision to have the defendant’s vehicle towed instead of permitting the passenger, Calderon, to drive it; the question here, instead, is whether the officer had authority to arrest the defendant without a warrant under G. L. c. 90, § 21, for operating a motor vehicle without a license when the defendant had a valid Canadian driver’s license and presented it to the officer. Second, to the extent that the language from Caceresmay otherwise be instructive, the validity of the conclusion that the passenger probably was not authorized to operate in Massachusetts is dubious at best.12 Lastly, and most significant, is the difference between the factual circumstances of the present case and those in Caceres. In Caceres, Calderon was determined to have been in the continental United States for three years, all the while using his driver’s license issued in Puerto Rico. Here, the defendant had just recently acquired his New Brunswick, Canada, driver’s license. Testimony at the hearing on the motion to suppress presented evidence that the defendant had reestablished his legal residence in Canada because of family issues (helping to care for his sick father). His Canadian license was both current and valid, and we can assume that the Canadian authorities made a deter*695mination of the defendant’s change of residence.13 In addition, during the stop and field investigation, the officer checked the defendant’s driving record and discovered that while he had a relatively long history of driving on a Massachusetts license, no such license was currently in existence, and no suspensions were outstanding. The time line was consistent with his Canadian license being valid and having been issued after the defendant had reestablished his legal residence in New Bmnswick, Canada (and after the expiration of his Massachusetts license). Contrary to the majority’s claim, the officer’s justification to arrest the defendant without a warrant was based entirely on his misunderstanding the requirements of G. L. c. 90, §§ 3 and 10. The existence of the defendant’s Massachusetts driving history was irrelevant and could not provide the basis for the officer’s actions. The officer acted upon and testified to his belief that the Canadian license, although otherwise valid, could not be used in the Commonwealth for more than thirty days. This was the relevance of the defendant’s driving history to the officer and was entirely the justification for arresting him. The officer here based his actions on a mistake of law, not upon a mistake of fact. Most Federal circuits agree that a mistake of law will not support probable cause or reasonable suspicion.14 “[F]or a Fourth Amendment analysis, the difference between a mistake of law and a mistake of fact is critical. . . . [A]n officer’s reasonable mistake of fact may provide the objective grounds for reasonable suspicion or probable cause required to justify a traffic stop, but an officer’s mistake of law may not.” United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003). An officer’s mistake of fact is determined to be either reasonable or unreasonable. What is reasonable will be decided based on the unique and specific facts of an individual case. “[T]he Fourth Amendment requires only a *696reasonable assessment of the facts, not a perfectly accurate one.” United States v. Cashman, 216 F.3d 582, 587 (7th Cir. 2000). Here, even though the officer may have acted in good faith, “the good faith exception to the exclusionary rule . . . should not be extended to excuse a vehicular search based on an officer’s mistake of law.” United States v. Chanthasouxat, 342 F.3d at 1280. See United States v. Gross, 550 F.3d 578, 584 n.2 (6th Cir. 2008) (“the vast majority of [Federal] circuits to decide this issue have concluded that an officer’s mistake of law, even if made in good faith, cannot provide grounds for reasonable suspicion or probable cause, because an officer’s mistake of law can never be objectively reasonable”). See also United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000) (California police officer’s good faith but mistaken belief that State law required two license plates rendered stop of driver whose car had one Michigan plate, in conformity with Michigan law, unconstitutional); Commonwealth v. Quezada, 67 Mass. App. Ct. 693, 695-696 (2006), S.C., 450 Mass. 1030 (2008) (officer’s good faith mistake as to scope of G. L. c. 111B, § 8, so-called protective custody statute, did not justify stop).

¶9In summary, the defendant was arrested subsequent to a routine traffic stop. He produced a valid Canadian driver’s license but the arresting officer believed that G. L. c. 90 allowed operation of a motor vehicle under authority of an out-of-State license for a period of time not greater than thirty days. The defendant’s previous Massachusetts driving record and residency, however, was irrelevant to the fact that he had reestablished his Canadian residency and obtained a valid Canadian driver’s license and registration. The officer’s determination of probable cause to arrest the defendant was based entirely on his erroneous understanding that G. L. c. 90 required an out-of-State driver to obtain a Massachusetts driver’s license after being present in the Commonwealth for thirty days. Regardless of the officer’s good faith, the arrest was entirely based on a mistake of law, and with no alternative legitimate basis because the defendant was no longer a Massachusetts legal resident, having reestablished his legal residence in Canada. Because the officer’s arrest of the defendant was based solely on a mistake of law, it was illegal, and the evidence discovered in the search pursuant to that arrest must be suppressed. The order of the trial court allowing the motion to suppress should be affirmed.

¶10 General Laws c. 90, § 21, as amended by St. 1987, c. 83, § 2, provides, in pertinent part:

“[An] officer . . . may arrest without a warrant . . . any person who, while operating a motor vehicle on any way, . . . violates the provisions of the first paragraph of [G. L. c. 90, § 10].”

¶11 *691General Laws c. 90, § 10, first par., as appearing in St. 1985, c. 146, provides in pertinent part:

“No . . . person shall. . . operate [a motor vehicle] unless licensed by the registrar unless he possesses a receipt issued under [§ 8] for persons licensed in another state or country . . . except as otherwise provided herein. . . . Subject to the provisions of [§ 3], a nonresident [defined in § 1 as a legal resident of another state or country] may operate [a] motor vehicle . . . duly registered in this commonwealth or in any state or country; provided, that he has the license on his person ... or in some easily accessible place, and that, as . . . determined by the registrar, his state or country grants substantially similar privileges to residents of this commonwealth . . . .” (Emphases supplied.)

¶12 General Laws c. 90, § 21, first par., provides in pertinent part that “[a]ny arrest made pursuant to this paragraph shall be deemed an arrest for the criminal offense or offenses involved and not for any civil motor infraction arising out of the same incident.”

¶13 The discussion at the hearing on the motion to suppress actually concerned only whether the thirty-day rule had been violated because the offense occurred on January 20, only twenty days into the calendar year and not whether a thirty-day limit is actually required by c. 90 under the facts of this case.

¶14 As amended through St. 2003, c. 46, §§ 88-95.

¶15 General Laws c. 90, § 1, as amended through St. 1924, c. 189, defined “Non-resident,” as “any resident of any state or country who has no regular place of abode or business in the Commonwealth for a period of more than thirty days in the year . . . .”

¶16 Section 1 of St. 1931, c. 142, amended G. L. c. 90, § 1, by inserting a new definition of a non-resident which reads: “Non-resident, any person whose legal residence is not within the commonwealth” (emphasis supplied).

¶17 Statute 1931, c. 142, §§ 2 and 5.

¶18 Provided the State or country granted “substantially similar privileges to residents of this commonwealth.”

¶19 See G. L. c. 90, § 3, as amended through St. 2003, c. 46, §§ 88-95, and G. L. c. 90, § 10, first par., as appearing in St. 1985, c. 146.

¶20 Contrary to the majority’s claim, the officer did not understand the legal, procedural, and practical requirements of G. L. c. 90, § 3 and § 10. Not only was there no inquiry at the scene concerning the insurance policy, there was no inquiry concerning the required insurance policy at the hearing on the motion to suppress.

¶21 Chapter 90, § 3, is clear when it states that a failure to produce such policy or certificate evidence of the policy, “shall be prima facie evidence, that insurance was not being maintained as required by this section, and in any such action to recover damages proof of such failure at the time of the accident shall create a presumption, which may be rebutted, that such insurance was not then being maintained as so required” (emphasis supplied).

¶22 According to the language from Caceresthat the majority considers to be dispositive of this case, every out-of-State student being educated in Massachusetts would be subject to arrest without a warrant for driving with his or her out-of-State license by the time of his or her senior year. Similarly, foreign nationals working seasonal employment on Cape Cod, for example, would be subject to arrest without a warrant at the end of their third summer or fall of working in Massachusetts. Nowhere in Caceresdoes the court find that the passenger, Calderon, was a legal resident of Massachusetts, that he had abandoned his legal residence in Puerto Rico and become a legal resident of a State, that he was not a student or a seasonal employee who traveled intermittently back to Puerto Rico, or even that his presence in the United States had been continuous for the previous three years. The court only determined that because the officer believed that Calderon was in the United States for three years, he was required to have a driver’s license from Massachusetts (or another State). This is not what G. L. c. 90, §§ 3 and 10, require.

¶23 Without making a specific finding, the motion judge nevertheless treated the defendant as if he were a legal Canadian resident. His residency was not an issue at the hearing because the judge interpreted G. L. c. 90, §§ 3 and 10, as requiring a Massachusetts driver’s license after being present in the Commonwealth for more than thirty days in a calendar year. As we have previously discussed, this is not what c. 90 requires.

¶24 An exception to this general rule exists when, despite an officer’s mistake of law as the basis for an arrest, there exists independent and contemporaneous probable cause to arrest. See Devenpeck v. Alford, 543 U.S. 146 (2004). Here, there was no alternative basis for the arrest.