Commonwealth v. Howe

Liacos, C.J.

(dissenting). The court concludes that the authority of a deputy sheriff to make an arrest in this case is recognized by statute, and implicit in our opinions. I disagree.

The Massachusetts statutory scheme, in fact, makes clear that the deputy sheriff in this case lacked the authority to arrest the defendant. Statutes which grant police officers the power to arrest do so explicitly. See G. L. c. 22B, § 7 (1986 ed.) (“capítol police shall have the same power to make arrests as the state police officers,” specifically in the enforcement of traffic rules); G. L. c. 41, § 98 (1986 ed.) (“police officers of all cities and towns” have the power to make arrests). Furthermore, the circumstances in which a deputy sheriff is authorized to make arrests are limited and enumerated. See, e.g., G. L. c. 160, § 220 (1986 ed. & 1987 Supp.) (deputy sheriff may, without warrant, arrest person unlawfully riding on freight car, caboose, or railroad car); G. L. c. 60, § 34 (1986 ed.) (deputy sheriff may, with warrant, arrest person whose assessed taxes remain unpaid after fourteen days); G. L. c. 64C, § 8 (deputy sheriff may, without warrant, arrest person illegally transporting cigarettes); G. L. c. 138, § 56 (1986 ed.) (deputy sheriff may, without warrant, arrest person illegally manufacturing, selling, or transporting alcoholic beverages); G. L. c. 271, § 23 (1986 ed.) (deputy sheriff may arrest persons found gambling); G. L. c. 272, §§ 65, 67, 69 (1986 ed.) (deputy sheriff shall, without warrant, arrest “tramps,” “vagrants,” and “vagabonds”). This court has repeatedly recognized that the express mention of one matter in a statute excludes by implication other similar matters. See, e.g., Harborview Residents’ *337Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425, 432 (1975); Forcier v. Hopkins, 329 Mass. 668, 671 (1953); General Elec. Co. v. Commonwealth, 329 Mass. 661, 664 (1953); Boston & Albany R.R. v. Commonwealth, 296 Mass. 426, 434 (1937). Although the numerous Massachusetts statutes cited above authorize a deputy sheriff to arrest in specific contexts, nowhere in the Massachusetts statutory scheme is a deputy sheriff explicitly given the power to make a warrantless traffic stop.

The court relies heavily on G. L. c. 37, § 13 (1986 ed.), which states that deputy sheriffs “may require suitable aid in the execution of their office in a criminal case, in the preservation of the peace . . . and in cases of escape or rescue of persons arrested upon civil process.” Section 13 was last modified in 1902 (R. L. 1902, c. 24, §§ 16, 17), and last discussed by this court in the mid-1800’s, and then only in the antiquated context of a deputy sheriff’s power to call out the organized militia of the Commonwealth to aid in preserving public peace and in enforcing the laws. Ela v. Smith, 5 Gray 121 (1857). See Whithead v. Keyes, 3 Allen 495, 497-498 (1862) (discussing sheriff’s liability for an escape suffered by his deputy). See also 3 Op. Att’y Gen. 488, 515 (1912) (deputy sheriff could direct any commander of a brigade, regiment, battalion, corps of cadets, or company, to aid in suppressing violence, or to quell imminent danger of riot or breach of peace). General Laws c. 37, § 13, lends no support to the Commonwealth’s argument that deputy sheriffs have the power to make traffic stops.

General Laws c. 90, § 21 (1986 ed.), sets forth in detail a police officer’s authority to make a warrantless stop and arrest of any person operating a motor vehicle while under the influence of intoxicating liquor. Section 21 demonstrates the explicit and specific language the Legislature uses when discussing arrest powers: “Any officer authorized to make arrests, provided such officer is in uniform or conspicuously displaying his [or her] badge of office, may arrest without warrant . . . whoever upon any way or place to which the public has the right of access, ... or who the officer has probable cause to *338believe has operated or is operating a motor vehicle while under the influence of intoxicating liquor ...” (emphasis added). Although G. L. c. 90, § 1, defines an “officer” as “any constable or other officer authorized to make arrest or serve process, provided he [or she] is in uniform or displays his [or her] badge of office,” § 21 refers specifically only to officers “authorized to make arrests” (emphasis added). See G. L. c. 37, § 12 (1986 ed.) (stating that deputy sheriff “may serve . . . demands, notices and citations not required by law to be served by an officer”). There is no suggestion in the language of § 21 that a deputy sheriff is included in its grant of authority. See Harborview Residents’ Comm., Inc. v. Quincy Hous. Auth., supra at 432 (statutory expression of one thing is an implied exclusion of other things omitted from statute.)

The court additionally relies on two of our cases to support the conclusion that a deputy sheriff has the power to make an arrest of a person operating an automobile while under the influence. Such reliance is misplaced. Commonwealth v. Gorman, 288 Mass. 294, 297-298 (1934), does not discuss the powers of deputy sheriffs but rather concerns the authority of a State police officer to make a warrantless arrest of a person operating a motor vehicle while under the influence of intoxicating liquor. Id. at 295. Similarly, Hartley v. Granville, 216 Mass. 38, 39 (1913), discusses only the general duties of a constable.

I conclude that a deputy sheriff lacks the authority to make a warrantless traffic stop and arrest. I would reverse the judgment.