Commonwealth v. Kerr

Nolan, J.

On September 1, 1988, the defendant, formerly a police officer with the Malden police department, was found guilty of violating G. L. c. 265, § 25 (1988 ed.), when he “did, as a police officer, verbally, maliciously and unlawfully use or threaten to use against James J. Sullivan, the power [or] authority vested in him, with the intent to compel Mr. Sullivan to do any act against his will.” At the close of all of the evidence the defendant moved for a required finding of not guilty. The motion was denied. The defendant then appealed. In December of 1988, this court decided a trilogy of cases involving the interpretation of art. 12 of the Massa*285chusetts Declaration of Rights.1 The defendant thereafter filed a motion for a new trial based on these decisions, which was also denied and the denial was appealed. The two appeals were consolidated by this court. We conclude that the defendant’s motion for a required finding of not guilty should have been granted based on the insufficiency of the evidence. Having come to this conclusion, we need not address the defendant’s claim based on transactional immunity.

The events which led to the defendant’s conviction occurred on July 24, 1987. On that date, Kerr, a sergeant and a nineteen-year veteran with the Malden police force, was working a paid detail. Kerr, in addition to his duties as a police officer, was privately employed by the Malden Trust Company to repossess motor vehicles.

At about noon on July 24, 1987, Kerr left his paid detail and drove his cruiser to a restaurant in Stoneham to repossess an automobile for the Malden Trust Company. Kerr was in full uniform. He entered the restaurant and asked the owner, James Sullivan to speak with him outside. Once outside the restaurant, Kerr apparently told Sullivan that he had a warrant for Sullivan’s arrest for concealing mortgaged property, namely the automobile. It is undisputed that Kerr had no warrant. Kerr demanded the keys to Sullivan’s automobile. Sullivan’s wife turned over the keys on hearing from her husband that Kerr had a warrant and that Sullivan would be arrested if she did not give Kerr the keys.

Kerr then went to a taxi cab company next door to the restaurant, identified himself as a Malden police officer, and asked for a driver to transport the repossessed vehicle to Malden. Kerr led the driver to Kerr’s home in Malden, left the automobile there, and drove the driver back to Stone-ham. Kerr never paid the driver for his services and had stated to him that he was repossessing an automobile for a bank.

*286The defendant was thereafter indicted and convicted of attempted extortion under G. L. c. 265, § 25, based on evidence independent of the police department’s internal investigation. The defendant argues that his motion for a required finding of not guilty should have been allowed because an essential element of the crime, i.e., that an officer used or threaten to use “the power or authority vested in him” is not present because he did not in fact have the power to carry out the arrest threat that he made. There was evidence to support the finding that Kerr threatened Sullivan with arrest stating that he had a warrant. Kerr did not in fact have a warrant and did not have the power to arrest. Since the arrest power was not “vested in him” at that time, Kerr argues he is not guilty of violating this statute. We agree.

It is a well-established proposition that criminal statutes are to be construed narrowly. We have stated that “[w]e must resolve in favor of criminal defendants any reasonable doubt as to [a] statute’s meaning.” Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). The defendant was convicted of violating G. L. c. 265, § 25, which states in pertinent part that “any police officer . . . who verbally or by written or printed communication maliciously and unlawfully uses or threatens to use against another the power or authority vested in him, with intent... to compel any person to do any act against his will, shall be punished” (emphasis added). The statute is clear on its face that an officer must threaten to use a power or authority that is actually vested in him, a threat that he actually has the power to carry out. If the officer does not in fact have the power which he threatens to use, then under the plain meaning of the statute, he is not guilty of a violation.

Given this starting point, the question becomes whether Kerr had the power to arrest Sullivan on the day he threatened to arrest him. When executing an arrest warrant, a police officer’s powers are State-wide. Commonwealth v. Martin, 98 Mass. 4 (1867). However, when a police officer does not have a valid warrant, the power to arrest is limited to the governmental unit to which he has been appointed. *287Commonwealth v. Grise, 398 Mass. 247, 249 (1986). There are two situations in which an officer may make a valid warrantless arrest even outside his jurisdiction. First, an officer has the right to make an extraterritorial arrest when he is “on fresh and continued pursuit” of a suspected felon. G. L. c. 41, § 98A (1988 ed.). Second, an officer has the power to arrest without a warrant in another territory when he has been specially sworn in as a police officer in that neighboring territory. G. L. c. 41, § 99 (1988 ed.).

When a police officer makes a warrantless arrest outside his territory and neither of the two exceptions exists, he acts only with the authority he would have as a private citizen. Commonwealth v. Grise, supra at 251. In Massachusetts, a private citizen has the power to arrest a person who has in fact committed a felony. Commonwealth v. Lussier, 333 Mass. 83, 92 (1955). In this case, the crime for which Kerr told Sullivan he had an arrest warrant was a misdemeanor.2 A private citizen would not have had the power to arrest Sullivan and, therefore, neither would Kerr. Commonwealth v. Grise, supra at 251 (a private person’s power to arrest is limited to felonies).

Kerr did not have a warrant for Sullivan’s arrest as he alleged. He therefore did not have the power to arrest because he, a Malden police officer, was in Stoneham, outside his jurisdiction. There was no evidence of fresh pursuit of a suspected felon or that Kerr was specially sworn in to make arrests in Stoneham. He did not have the power, even as a private citizen, to make an arrest. The statute is clear that, for a violation, an officer must threaten a person with a power or authority vested in the officer. The statute is penal and therefore must be construed narrowly. No arrest power was vested in Kerr at the time of the threat. Accordingly, he should have been found not guilty.

The Legislature may want to consider amending G. L. c. 265, § 25, to make it punishable for a police officer with *288apparent authority, as here, to commit these reprehensible acts.

Judgment reversed.

Finding set aside.

Carney v. Springfield, 403 Mass. 604 (1988). Doe v. Springfield, 403 Mass. 1010 (1988). Springfield v. Civil Serv. Comm’n, 403 Mass. 612 (1988).

Sullivan was accused of concealing mortgaged property in violation of G. L. c. 266, § 82 (1988 ed.).