|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Leonard, 422
Supreme Judicial Court of Massachusetts,
Argued
Decided
W. Matthew Iler,
Assistant District Attorney, for Commonwealth.
Richard H. Gens,
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and FRIED, JJ..
FRIED, Justice.
Anne
Leonard, the defendant, claims that her rights protected by art. 14 of the
Declaration of Rights of the Massachusetts Constitution and the Fourth
Amendment to the United States Constitution were abridged when a State trooper
opened her automobile door without her permission. The District Court judge agreed and
suppressed all evidence acquired after what he concluded was an improper
intrusion. A single justice of this
court allowed the Commonwealth's [422
The only
evidence before the District Court judge was Trooper David E. Ford's police
report. We set out the relevant
portions, only expanding the abbreviations.
"At approx. 0100 hrs. on 05‑14‑94 this [trooper]
observed a 1982 Dodge [sedan], color blue, Ma.
[registration] 659‑CTF operating on Storrow
Dr. [westbound] before the Lagoon
area. As I pulled alongside this
vehicle, to pass same, the [motor vehicle] pulled into the breakdown area
adjacent to the Lagoon. This [trooper] observed
a white female, approx. 50‑60 yrs. of age [operating] said [motor vehicle]. As I was now beyond the cut‑out area
and the [motor vehicle] traffic was heavy behind me I continued on to the Bowker Overpass where I made a U‑turn, exited at the
Govt. Center exit and headed [westbound]
to the [motor vehicle] in question. At
this time I pulled my cruiser alongside the [motor vehicle] and activated my
blue lights. After several attempts at
using the PA system and air‑horn to gain the attention of the female
operator, to no avail, I backed my cruiser into the cut‑out. At this point I approached the [motor
vehicle] on the driver[']s side and knocked on the driver[']s window approx. 3‑4
times. When no response to my knocking
elicited any response from the operator, I opened the driver[']s door. At this time the female [operator], whom I
recognized from my previous passing, looked up at me & said 'what the fuck
do you want'. I then asked [subject]
what was wrong. She stated 'what the
fuck do you care'. At this time I asked
[subject] for her license & [registration], which she eventually produced
after a couple of minutes of searching her pocketbook. During this time I observed a strong odor of
liquor coming from [subject's] breath, as I was only inches away from her face. This [trooper] then asked [subject] how many
drinks she had had. [Subject's] response
was 'I don't drink you bastard.' "
Ford then
told Leonard to step outside the vehicle, which she refused to do. With the help of another trooper who had just
arrived on the scene Ford forcibly removed her.
She resisted and was physically and verbally abusive. Leonard was informed that she was being
placed under arrest and was brought to police headquarters where she was booked
and charged with operating a vehicle while under the influence of alcohol and
disorderly conduct.
[422
In our
view, Trooper Ford was doing his duty as he patrolled the highway to inquire
whether the driver of the automobile was ill or in some other kind of
difficulty. This reflex is so naturally
helpful and so appropriate to his duties that Leonard's repeated failure to
respond in any way to Ford's attempts to attract her attention could only
excite further concern on his part. When
she did not respond‑‑not with a gesture, a smile, or a nod of the
head‑‑to his taps on her window, the circumstance must have
appeared even more unusual and the possibility that the driver was seriously
ill much more likely. At this point he
opened her automobile door; and if that
was a reasonable and legally permissible thing to do, the evidence he
discovered should not have been excluded.
It is a
premise of the District Court judge's reasoning that by opening the automobile
door Trooper Ford invaded Leonard's constitutionally protected privacy rights
and so required prior justification under the Fourth Amendment and art.
14. And since there was not even a
reasonable suspicion that a crime had been committed‑‑and the
Commonwealth claims none‑‑the judge was well on his way to the
conclusion that there was here a violation of constitutional rights. The judge considered that only our reasoning
in Commonwealth v. King, 389
"The very limited and focused inspection of a vehicle to
determine whether assistance or aid is required is a minimal intrusion on the
occupant's, or owner's, expectation of privacy.
The situation here does not involve a random stop causing concern,
fright, or anxiety.... It does not
involve a situation where a more limited alternative is possible or where there
is no constraint on the discretion of the law enforcer.... The policy required every stopped and parked
car to be inspected. The policy limited
the intrusion only to that time period when the hazards arise." (Citations and footnote omitted.)
Remarks in our decision in
Commonwealth v. Helme, 399 Mass 298, 302, 503
N.E.2d 1287 (1987) ("The policy of investigating parked automobiles with
interior lights on is too broad to justify even the limited intrusion of
approaching the car to determine 'if everything is all right' "),
supported the judge's reading. The
District Court judge concluded that there must be "circumstances
suggesting a medical problem ... along with a police policy based upon a
careful weighing of the public interest in intervention against the
individual's right to privacy and that severely limits police
discretion." Since there was no
claim that Trooper Ford "was acting in accordance with an official policy
of the state police ... and [no] specific facts [422
To begin with, it is not clear that anything Trooper Ford did
up to and including opening the automobile door went beyond the kind of police‑citizen
interchange that constitutes no intrusion and requires no justification. (FN2)
See Terry, supra at 19 n. 16,
88 S.Ct. at 1878‑1879 n. 16 ("Obviously,
not all personal intercourse between policemen and citizens involves 'seizures'
of persons. Only when the officer, by
means of physical force or show of authority, has in some way restrained the
liberty of a citizen may we conclude that a 'seizure' has occurred"). See also
Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991) (no seizure when
officers boarded bus and asked to inspect passenger's baggage);
Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct.
308, 83 L.Ed.2d 165 (1984) (Fourth Amendment not implicated by inquiry of
passenger at airport); INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (no seizure during
document check at factory); Commonwealth v. Doulette,
414 Mass. 653, 657, 609 N.E.2d 473 (1993); Commonwealth v. Sanchez, 403 Mass. 640,
531 N.E.2d 1256 (1988); Model Code of
Pre‑Arraignment Procedure 257 (1975) (while law enforcement officers may
not seek cooperation "in such a way as to imply an obligation to
cooperate, if cooperation is forthcoming, the fact that it is in response to a
police request should not render it suspect as coerced or
involuntary"). Thus Terry itself makes clear that the
sliding scale of reasonableness should not be taken to mean that every
encounter between police and citizen initiated by the police must potentially
be justifiable to a court. Up until the
opening of the automobile door, which is the action in issue here, unlike both King, supra at 241, 449 N.E.2d 1217,
and Helme,
supra at 299, 503 N.E.2d 1287, there was no blocking of Leonard's way, no
show of force, in short nothing inconsistent with a routine inquiry requiring
no justification in a court. Even if
opening an unlocked vehicle door, where the police officer is acting out of
concern for the well being of the person inside rather than on the basis of a
suspicion of criminality, passes some constitutional threshold requiring
constitutionally sufficient [422
Mass. 509] justification, the
District Court judge overreads our decisions as
requiring that actions as reasonable as Trooper Ford's are only permissible if
taken pursuant to an explicit and perhaps even invariable policy. Leonard's stopping when and where she did
suggested that she was in difficulty.
Her failure even to acknowledge Trooper Ford's inquiry suggested that
she may have been quite ill. At that
point her automobile door is opened.
Unlike the more intrusive actions exemplified in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (wholly discretionary
investigatory stop of vehicle on highway); Commonwealth v. McGeoghegan,
389 Mass. 137, 449 N.E.2d 349 (1983) (roadblock sobriety test); or the blocking of the way exemplified in King and Helme, where the requirement of some
articulated general policy was offered as a safeguard against arbitrary police
action, what Trooper Ford did here was a minimally intrusive response to one of
the myriad and uncategorizable events that may alert
an officer that his assistance may be required.
Although it is easy enough for us looking at this case after the fact to
describe a category into which it might be placed, it would be a very lengthy
and cumbersome rulebook indeed‑‑or uselessly general one‑‑that
sought to anticipate and instruct a trooper in Ford's position just what to do
in the circumstances of every such particular case. (FN3)
If there was an intrusion here, it was justified as reasonable
in the circumstances. Once the trooper
was justified in making his entry into the car, anything he acquired within the
scope of his inquiry is properly admissible in a court of law. Cf.
King, supra at 243, 449 N.E.2d 1217.
Thus, the evidence gleaned after the door was opened‑‑the
odor of alcohol on Leonard's breath and testimony as to her violent and abusive
words and action‑‑should not have been excluded. The District Court judge's suppression order
is reversed.
So ordered.
[422 Mass. 510] LIACOS,
Chief Justice (dissenting).
A great body of law has been painstakingly developed over many
years to interpret and give meaning to our Federal and State Constitutions in
such a manner as to protect the rights of the citizenry from the overreaching
of government. I had assumed it to be
our responsibility to recognize overreaching by law enforcement personnel when
it occurs. Today, the court is faced
once again with the familiar complaint that the police have intruded into the
domain of citizen privacy. In response,
the court fails even to decide whether the officer involved conducted a search
or a seizure. The court decides instead,
contrary to the facts found by the District Court judge, that the police
officer acted reasonably with good intentions, and looks no further.
Ignored also is the fundamental appellate principle that we
ought to uphold a judge's subsidiary findings of fact if they are warranted by
the evidence. Commonwealth v. Silva, 388
The court substitutes its interpretation of the events for
those of the judge. The court states
that, "[i]n our view, Trooper Ford was doing his
duty as he patrolled the highway to inquire whether the driver of the
automobile was ill or in some other kind of difficulty. This reflex is so naturally helpful and so
appropriate to his duties that Leonard's repeated failure to respond in any way
to Ford's attempts to attract her attention could only excite further concern
on his part. When she did not respond‑‑not
with a gesture, a smile, or a nod of the head‑‑to his taps on her
window, the circumstance must have appeared even more unusual and the
possibility that the driver was seriously ill much more likely." Ante
at 830. Such assumptions cannot replace
the obligation of an officer of the law to determine independently and
objectively whether any particular person who, on his or her own initiative,
pulls over to the side of a road does in fact appear to be in need of aid or
assistance, or is engaged in suspicious conduct. Certainly a person in an automobile may pull
off a highway to consult a road map, to look safely for an item lost between
the seats, to remove a speck of dust from an eye, or for any number of benign
reasons not raising the suspicions of a passing officer. Yet, the court states that the officer pulled
in behind the defendant in this case "to inquire whether the driver of the
automobile was ill or in some other kind of difficulty." Ante
at 830. Neither the officer nor the
Commonwealth advanced this claim, and the judge did not so find.
As the judge concluded, it is clear from our case law that
opening the defendant's door constituted a seizure of the defendant's
automobile. See Commonwealth v. Sumerlin, 393 Mass. 127,
128 & n. 1, 469 N.E.2d 826 (1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 972, 83 L.Ed.2d 975 (1985) (approaching car and
opening door without inquiry of occupants is a search); Commonwealth v. Podgurski, 386 Mass. 385, 388, 390, 436 N.E.2d 150
(1982), cert. denied, 459 U.S. 1222, 103 S.Ct. 1167,
75 L.Ed.2d 464 (1983) (poking head through open door into passenger compartment
of windowless van is search and not "threshold inquiry;" looking through window without physical
intrusion would not be search); Commonwealth v. Almeida, 373 Mass. 266,
269‑270, 366 N.E.2d 756 (1977), S.C., 381 Mass. 420, 409 N.E.2d 776
(1980) (ordering occupant [422 Mass.
512] out of automobile parked at
night with engine running, headlights off, and then opening the door was a
justified "stop" where occupant delayed briefly in producing
registration); Commonwealth v. Tompert,
27 Mass.App.Ct. 804, 806, 544 N.E.2d 226 (1989)
("That the defendant might have been free to drive away when [the officer]
approached the truck is irrelevant.
There can be no dispute that, when [the officer, without inquiry] opened
the door, the defendant was stopped from doing anything other than what was
ordered"). See also Commonwealth v. Doulette,
414 Mass. 653, 655, 609 N.E.2d 473 (1993) (looking into automobile with
flashlight is not search). "The
Fourth Amendment applies to all seizures of the person, including seizures that
involve only a brief detention short of traditional arrest.... '[W]henever a
police officer accosts an individual and restrains his freedom to walk away, he
has 'seized' that person,'...." United States v. Brignoni‑Ponce,
422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d
607 (1975), quoting Terry v. Ohio,
392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889
(1968). Accord Commonwealth v. Borges, 395 Mass. 788, 791, 482 N.E.2d 314 (1985),
quoting United States v. Mendenhall,
446 U.S. 544, 554, 100 S.Ct. 1870, 1876, 1877, 64
L.Ed.2d 497 (1980) (seizure occurs if "in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was
not free to leave").
The judge applied the proper law to the facts, discussing our
cases of Commonwealth v. Helme, 399 Mass. 298, 503 N.E.2d 1287 (1987), and Commonwealth v. King, 389 Mass. 233,
449 N.E.2d 1217 (1983), S.C., 400 Mass. 283, 508 N.E.2d 1382 (1987), and the
Appeals Court's decision of Commonwealth
v. Tompert, supra. An initial police inquiry must rest on
"specific and articulable facts and the specific
reasonable inferences which follow from such facts in light of the officer's
experience. A mere 'hunch' is not
enough. Simple good faith on the part of
the officer is not enough. The test is
an objective one." Commonwealth v. Cantalupo,
380 Mass. 173, 175‑176, 402 N.E.2d 1040 (1980), quoting Commonwealth v. Silva, 366 Mass. 402,
406, 318 N.E.2d 895 (1974). The judge
was correct when he stated that "when police conduct amounts to a stop or
detention ... there must be a prior justification either in the form of articulable facts and circumstances suggestive of criminal
activity or circumstances suggesting a medical problem or [hazard] to safety or
health." As the Commonwealth
presented no such justification, the judge's conclusion that none existed is
not clearly erroneous.
The King, Helme, and Tompert cases all involved standard [422 Mass. 513] police
policies requiring investigatory checks for highway safety purposes. While I agree that our cases have not explicitly
required an established written policy to justify an investigatory stop, what
we have required is some constraint on the discretion of the law enforcer.
Commonwealth v. Helme, supra at 302, 503
N.E.2d 1287. Commonwealth v. King, supra at 242, 449 N.E.2d 1217. Accord
Delaware v. Prouse, 440 U.S. 648, 655, 99 S.Ct. 1391, 1396‑1397, 59 L.Ed.2d 660 (1979) (random
automobile spot checks not based on probable cause give too much discretion to
law enforcement); United States v. Brignoni‑Ponce,
supra at 882, 95 S.Ct. at 2580‑2581
("In the context of border area stops, the reasonableness requirement of
the Fourth Amendment demands something more than the broad and unlimited
discretion sought by the Government"); Cady v. Dombrowski,
413 U.S. 433, 443, 445, 93 S.Ct. 2523, 2529, 2530, 37
L.Ed.2d 706 (1973) (search of automobile trunk pursuant to standard police
policy lawful as protective of public safety).
Standard procedures are universally recognized as a tool to determine the
reasonableness of police conduct, and to ensure police actions are not a
pretext. A pretext stop "occurs
when an officer, who does not have a legally sufficient reason to search for
evidence of a particular offense, uses another reason to seize potential
defendants and justify the search."
Note, Police Officers Must Meet "Reasonable Officer" Standard
to Withstand Pretext Claim, 36 S.Tex.L.Rev. 629, 633
(1995). Accord United States v. Arra, 630 F.2d 836, 845
n. 12 (1st Cir.1980) (objective reasonableness of officer's action determines
existence of pretext). "In the
absence of standard police procedures which limit discretion, most police
practices are entirely discretionary.
Numerous authorities have stated, and one can easily imagine, the
potential for abuse arising from unfettered police activity." Note,
supra at 646. We have stated that a
standard policy governing investigatory stops, if reasonable, can provide
justification for a Terry‑type
stop in the absence of full probable cause. Commonwealth v. Doulette,
supra at 656, 609 N.E.2d 473, citing
Commonwealth v. Tompert, supra. The absence of such a policy supports the
judge's finding of lack of specific and articulable
facts.
It is reasonable to conclude that this court's reasoning will
encourage police to fabricate stories of drivers potentially requiring aid and
assistance as a pretext for stopping lone drivers at night on the highways and
roads of the Commonwealth. See 3 W.R. LaFave, Search and Seizure § 7.5(e), at 590 (3d ed.
1996). This court should take extra care
to [422 Mass. 514] ensure the rights of the citizenry
are not compromised by a zealous desire on the part of law enforcement to
obtain arrests or convictions. It does
not help to engage in a form of inappropriate appellate fact finding so as to
say, without any facts of record, that Leonard's stopping when and where she
did suggested that she was in difficulty, or to say: "Her failure even to acknowledge Trooper
Ford's inquiry suggested that she may have been quite ill." (FN2) Ante at 831. " 'Policing' the police has been, is,
and always will be a difficult task.
Juries are reluctant to return judgments against police officers; verdicts often 'turn upon jurors' assessments
of plaintiffs' character rather than upon the merits of the police action.'
" (footnotes omitted). Maclin, When the
Cure for the Fourth Amendment is Worse than the Disease, 68 S.Cal.L.Rev.
1, 64 (1994), quoting Skolnick & Fyfe, Above the Law at 203 (1995). The court today unfortunately reinforces this
unnatural whittling away of the Fourth Amendment to the United States
Constitution. I dissent.
(FN1.) Although this court has decided that in
some circumstances art. 14 provides greater protection than the Fourth
Amendment, see, e.g., Commonwealth v.
Blood, 400 Mass. 61, 74, 507 N.E.2d 1029 (1987) (wiretaps);
Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985)
(confidential informants), the defendant has offered us no compelling reason to
expand the protection of art. 14 here.
(FN2.) As the District Court judge noted,
"The Commonwealth [argues] that this case falls into a special category of
cases in which the police are justified in interfering with a motorist's
liberty without probable cause and without a warrant because there is reason to
believe the motorist may be in need of assistance."
(FN3.) Decisions in other jurisdictions, while
not on all fours with the facts of this case, support this conclusion. See, e.g.,
United States v. Haley, 581 F.2d 723, 726 (8th Cir.), cert. denied, 439
U.S. 1005, 99 S.Ct. 618, 58 L.Ed.2d 681 (1978) (entry
into automobile to "seek identification or medical alert cards which might
be of assistance" to a man found unconscious nearby who did not appear to
be either hurt or under the influence of alcohol); State v. Kersh,
313 N.W.2d 566 (Iowa 1981) (defendant slumped behind steering wheel did not
respond to knocks on window). See also 3
W.R. LaFave, Search and Seizure § 7.4(f), at 570 n.
142 (3d ed. 1996) (collecting cases).
(FN1.) General Laws c. 90, § 25 (1994 ed.),
does provide that one "who, while
operating or in charge of a motor vehicle, shall refuse, when requested by
a police officer, to give his name and address ... or who shall refuse or neglect to stop when signalled
to stop by any police officer who is in uniform or who displays his badge
conspicuously on the outside of his outer coat or garment ... shall be punished
by a fine of one hundred dollars" (emphasis supplied). This statute is not relied on by the
Commonwealth or the court. In any event,
it seems inapplicable to the facts of this case.
(FN2.) The trooper did not say anything of the kind. Nor did the judge so find.