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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. McGeoghegan,
389
Supreme Judicial Court of Massachusetts,
Argued
Decided
Michael J. Traft, Asst.
Dist. Atty. (Ellen Fulham,
Asst. Dist. Atty., with him), for the Commonwealth.
Jeanne Baker, Cambridge (John Reinstein,
Boston, and Stephanie A. Cleverdon, Cambridge, with
her, for Richard Smith, Dominic J. Paratore, Belmont,
for John Mitchell and Leonard A. Hanlon, Medford, for Herbert Cruikshank, also with her).
Before [389
O'CONNOR, Justice.
In this
appeal by the Commonwealth from the dismissal of several criminal complaints,
we consider the lawfulness of a roadblock stop of motor vehicles for the
purpose of detecting drunk drivers. A
District Court judge heard the defendant McGeoghegan's
motion to dismiss the complaints against him, and the parties agreed that the
judge's rulings on that motion would apply to the complaints against the other defendants
as well. McGeoghegan's
motion, which states that it was filed by direction of the court, was expressly
grounded on the contention that McGeoghegan's motor
vehicle was unlawfully stopped. The
implied contention is that the evidence which provided the basis for the
issuance of the complaints was unlawfully obtained as a result of the
stop. After hearing McGeoghegan's
motion, the judge dismissed all the complaints against the defendants. The Commonwealth appealed, and we granted the
Commonwealth's application for direct appellate review. We affirm the orders dismissing the
complaints.
The
parties agreed at the hearing on the motion to dismiss that McGeoghegan
was in a motor vehicle that had been stopped at a roadblock, that the police
asked him for his "papers," that he showed signs of having been
drinking and was taken from his vehicle to a nearby van, where he took and
failed a breathalyzer test, and that he was arrested and his vehicle was towed
away. It was also agreed that the [389 Mass. 139] police had no cause initially to stop McGeoghegan
"except that he was one ... of two hundred or more motorists that were
stopped as they passed the roadblock stoppoint."
There are
additional undisputed facts. The
roadblock was conducted by the Revere police department on North Shore Road and
Mills Avenue in that city on the evening of January 15, 1982. This was the result of a plan formulated
earlier that day by the police chief and four subordinates. The area of the roadblock was a heavily travelled highway.
The main purpose of the roadblock was to detect drunk drivers.
[1] The
stopping of McGeoghegan's motor vehicle was a seizure
within the meaning of the Fourth and Fourteenth Amendments to the United States
Constitution and was required by those amendments to be reasonable.
Delaware v. Prouse, 440 U.S. 648, 653‑654,
99 S.Ct. 1391, 1395‑1396, 59 L.Ed.2d 660
(1979).
United States v. Brignoni‑Ponce, 422
U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607
(1975). "[T]he reasonableness of
such seizures depends on a balance between the public interest and the
individual's right to personal security free from arbitrary interference by law
officers." Id.
The reasonableness standard usually requires that the facts on which an
intrusion is based be measured against probable cause, Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 283, 69 L.Ed. 543
(1925), or, in limited instances, on articulable,
reasonable suspicion focusing on the affected individual. United States v. Brignoni‑Ponce, supra, 422 U.S. at 881, 95 S.Ct. at 2580. See Delaware v. Prouse,
supra 440 U.S. at 654‑656, 99 S.Ct. at 1396‑1397.
No method
of spot checking motor vehicles to discover drunk drivers, in the absence of
probable cause or articulable suspicion, has been held
by the Supreme Court of the United States to be constitutionally
permissible. However, the Supreme Court
has not precluded the possibility that a constitutionally permissible spot
check method might be devised.
In Delaware v. Prouse,
supra, the Court distinguished random stops of motor vehicles from
roadblocks, where "the motorist can see that other vehicles are being
stopped, he can see visible signs of the officers' authority, and he is much [389 Mass. 140] less likely to be frightened or annoyed by the intrusion." Id.
at 657, 99 S.Ct. at 1398, quoting from United States v. Ortiz, 422 U.S. 891,
895, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975).
Delaware v. Prouse involved the random
stopping of motor vehicles for the purpose of checking drivers' licenses and
vehicle registrations. The Court held
that such stops were impermissible unless based on specific, articulable facts.
However, the Court announced that its "holding does not preclude
the State of Delaware or other States from developing methods for spot checks
that involve less intrusion or that do not involve the unconstrained exercise
of discretion. Questioning of all
oncoming traffic at roadblock‑type stops is one possible
alternative." Id. 440 U.S. at 663, 99 S.Ct. at 1401. The
Court had previously held in United
States v. Martinez‑Fuerte, 428 U.S. 543, 96
S.Ct. 3074, 49 L.Ed.2d 1116 (1976), that the routine
stopping of motor vehicles at a fixed, permanent checkpoint by Federal Border
Patrol agents to check for illegal aliens was lawful, noting that motorists
using highways with permanent checkpoints are not taken by surprise "as
they know, or may obtain knowledge of, the location of the checkpoints and will
not be stopped elsewhere." Id. at 559, 96 S.Ct.
at 3083.
This court
has not previously decided a case in which a question of the lawfulness of a
roadblock stop of motor vehicles was involved.
However, a somewhat similar question was presented in Commonwealth v. Harris, 383 Mass. 655,
421 N.E.2d 447 (1981). There we held
that a warrantless search of persons entering the
Suffolk County Court House was constitutionally permissible when its purpose
was to protect that "sensitive facility" from the danger of
violence. We noted that the defendant
"was not singled out for different treatment from others similarly
situated, the search could not have been a surprise to him, and he made no
objection. Although elements of coercion
were inherent in the situation, the element of voluntariness
reduced the intrusiveness of the procedure." We recognized the search as being consensual
in the same way as in the airport search cases, citing McMorris v. Alioto,
567 F.2d 897, 901 (9th Cir.1978). Commonwealth v. Harris, supra, 383 Mass.
at ‑‑‑, Mass.Adv.Sh. (1981) at 1258, 421 N.E.2d 447.
[389 Mass. 141] Decisions of two Federal courts of appeals and the Supreme Court
of Oregon, subsequent to Delaware v. Prouse, supra, provide some assistance in an
identification of factors that are significant to a determination whether a
roadblock spot check method of discovering drunk drivers is a sufficiently
reasonable accommodation of the public's interest in highway safety with the
individual's right to personal security so as to be permissible under the
United
States Constitution.
(FN2) In United States v. Miller, 608 F.2d 1089 (5th Cir.1979), cert.
denied, 447 U.S. 926, 100 S.Ct. 3020, 65 L.Ed.2d 1119
(1980), officers of the Texas Department of Public Safety set up a routine
license and vehicle registration checkpoint adjacent to a Border Patrol
checkpoint, a lighted area, on Highway 67 in Texas. All cars travelling
in either direction were stopped. The
court noted that this was "a procedure apparently approved in Delaware v. Prouse." Id.
at 1093.
In United States v. Prichard, 645 F.2d 854
(10th Cir.1981), cert. denied, 454 U.S. 832, 102 S.Ct.
130, 70 L.Ed.2d 110 (1981), the central issue was whether the search of a Ford
Bronco automobile, which resulted in the seizure of cocaine valued at
$20,000,000, was lawful. Two New Mexico
State police officers, with their supervisor's permission, had established a
roadblock at about noon on an interstate highway for the purpose of conducting
a routine driver's license and registration check. "The officers testified that it was
their intent to stop all westbound vehicles, except for semi‑trucks,
which had already been stopped at a port of entry. When the cars began to 'pile‑up,'
however, the officers would wave all of the stopped cars through in order to
prevent the situation from becoming unduly hazardous. One officer estimated that they would allow
no more than ten cars to [389 Mass.
142] back up before they waved all
of the stopped cars on through. After
they cleared the area, the officers would begin to stop cars again." Id.
at 855. It was in this setting that the
Ford Bronco was stopped, culminating in the seizure of the cocaine. Relying on the dictum in Delaware v. Prouse, the court held that
the roadblock stop of the Ford Bronco was lawful. The court reasoned that "[w]hile this may not have been a '100% roadblock' of the type
referred to in Prouse,
it is nonetheless a long way from the selective, single car stop denounced in Prouse. In the instant case, the New Mexico State
police were attempting to stop all westbound traffic on an interstate highway, insofar
as was humanly possible. The decision
not to stop trucks was reasonable under the circumstances, because, presumably,
they had all been stopped at a port of entry.
The purpose of the roadblock, i.e., to check drivers' licenses and car
registrations, was a legitimate one. If,
in the process of so doing, the officers saw evidence of other crimes, they had
the right to take reasonable investigative steps and were not required to close
their eyes. See United States v. Merryman, 630 F.2d 780,
782‑785 (10th Cir.1980).
Furthermore, allowing all the stopped cars through when traffic became
congested was also reasonable and ... non‑violative
of the rule of Prouse."
United States v. Prichard, supra at 856‑857.
State v. Tourtillott,
289 Or. 845, 618 P.2d 423 (1980), cert. denied, 451 U.S. 972, 101 S.Ct. 2051, 68 L.Ed.2d 352 (1981), involved a roadblock,
manned by an officer of the Oregon State Police Game Division, to check
hunters' compliance with game laws, to check hunting licenses and to gather
statistics on hunter success on the opening day of deer hunting season. The roadblock was established on a rural
highway, warning signs were placed on the side of the road, and the officer's
motor vehicle, "with a sign on its side indicating its ownership," was
parked at a right angle to the road. As
automobiles approached, the officer, wearing a uniform and a badge, stood in
the center of the road and held out his hand to stop approaching motor
vehicles. If the car contained older
people or others who [389 Mass. 143] did not appear to have been hunting
the officer would sometimes permit them to continue after they slowed or
stopped. The defendant was stopped, and
was discovered to have been driving after revocation of her driver's license. Id.
at 848‑849, 618 P.2d 423. The
court held that the stop was lawful.
The court reasoned that the degree of psychological and physical
intrusion occasioned by the stop was "more analogous to that found
permissible in Martinez‑Fuerte than to those in ... Prouse " because all the vehicles
were slowed or stopped at the checkpoint. Id. at 858, 618 P.2d 423. The court reasoned further that, since the
checkpoint was established on the first weekend of the hunting season, on an
isolated road where hunting was to be expected, it "would be one of the
most effective [methods] to meet its goals." Id.
Our task
is to decide the case before us rather than to proclaim the precise limits
within which other roadblocks may be considered to be constitutionally
permissible. However, we are well aware
of the public's interest in reducing the incidence of drunk driving in a way
that is consistent with the important interest of individuals in being free
from unreasonable intrusion on their personal security. For this reason, we make some observations
that we think are relevant to a consideration of the lawfulness of roadblocks
before focusing on the specific roadblock at issue. We, of course, recognize that the United
States Supreme Court is the ultimate authority with respect to questions
involving the United States Constitution.
[2] For a
roadblock to be permissible, it appears that the selection of motor vehicles to
be stopped must not be arbitrary, safety must be assured, motorists'
inconvenience must be minimized, and assurance must be given that the procedure
is being conducted pursuant to a plan devised by law enforcement supervisory
personnel. While we do not suggest that
advance notice is a constitutional necessity, advance publication of the date
of an intended roadblock, even without announcing its precise location, would
have the virtue of reducing surprise, fear, and inconvenience. Such a procedure may achieve a degree of law
enforcement and [389 Mass. 144] highway safety that is not reasonably
attainable by less intrusive means.
Also, while we do not suggest that roadblocks can only be constitutional
if prescribed by statute or appropriate governmental regulation, we think that
procedures conducted pursuant to such authorizations and standards would be
more defensible than would other procedures.
(FN3)
[3] We
turn now to the roadblock conducted by the Revere police department on the
evening of January 15, 1982, and to the defendants' motions to dismiss. All the evidence against the defendants was
obtained as a result of the roadblock.
If the roadblock was unlawful, the motions to dismiss were properly
allowed. The judge found that the
roadblock area was poorly illuminated and unsafe for motorists, that the
mechanics of the roadblock were left to the discretion of the officers carrying
it out, that the officers used their own discretion in deciding which cars to
stop, and that motorists were backed up on the highway for at least two‑thirds
of a mile. Many of these and other
findings of the judge are justifiably challenged by the Commonwealth, and we do
not rely on them. However, the judge was
not required to credit the Commonwealth's evidence, and he made no findings
that would support the lawfulness of the roadblock. Since the burden was on the Commonwealth to
establish the lawfulness of the roadblock,
Commonwealth v. Leone, 386 Mass. 329, 336, 435 N.E.2d 1036 (1982), Commonwealth v. Antobenedetto,
366 Mass. 51, 57, 315 N.E.2d 530 (1974), the judgments must be affirmed unless
the undisputed facts (recited at the outset of this opinion) compel the
conclusion that the police procedures were reasonable in the Fourth Amendment
sense. They do not. They fail to establish sufficient police presence,
and adequate lighting and warning [389
Mass. 145] to approaching motorists. They do not establish lack of arbitrariness
and undue delay. We need go no
further. The orders must be affirmed.
So ordered.
NOLAN,
Justice (dissenting).
I
dissent. Many of the judge's findings on
factors which are crucial to a proper roadblock are unsupported by the
evidence. I believe that the
Commonwealth satisfied its burden of establishing the lawfulness of the
roadblock in this case. Commonwealth v. Antobenedetto,
366 Mass. 51, 57, 315 N.E.2d 530 (1974).
If illegal
alien traffic and smuggling are sufficiently serious public problems to justify
the Border Patrol in stopping vehicles for brief questioning of their occupants
at a specific checkpoint despite the absence of articulable
facts to justify the stopping of a motor vehicle (see United States v. Martinez‑Fuerte,
428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 [1976]
), the "carnage caused by drunk drivers" (South Dakota v. Neville, 459 U.S. 553, 103 S.Ct.
916, 920, 74 L.Ed.2d 748 [1983] ) is even more serious and widespread.
The guidelines
which the court has delineated today appear to have been met in this case. There was testimony that the stopping of
motor vehicles was not arbitrary, all vehicles were stopped, and that hazard
and inconvenience to motorists were at a minimum. There were visible signs of the roadblock and
the police did not use their own discretion as to the particular vehicle to be
stopped.
On
balance, the inoffensive intrusion of a systematic stopping of all vehicles at
a fixed point is a small price to pay for efforts to reduce the frightening
slaughter on our highways caused by driving under the influence of liquor.
(FN1.) The other defendants are John Mitchell,
Richard L. Smith, Herbert Cruikshank, Richard J.
Smith, and Robert Kleinberg.
The
complaints are as follows:
(a)
against McGeoghegan, operating under the influence of
intoxicating liquor, driving negligently so as to endanger the public, and
possession of a controlled substance.
(b)
against Mitchell, possession of a controlled substance, and unlawful drinking
of an alcoholic beverage while on a public way.
(c)
against Richard L. Smith, unlawful carrying of a knife with a blade in excess
of two and one‑half inches in violation of a city ordinance, and
possession of a controlled substance.
(d)
against Cruikshank, operating under the influence of
intoxicating liquor, driving negligently so as to endanger the public, and
possession of a controlled substance.
(e)
against Richard J. Smith, two complaints of possession of a controlled
substance.
(f)
against Kleinberg, operating under the influence of intoxicating liquor,
driving negligently so as to endanger the public, and operating a motor vehicle
on a public way not being duly licensed.
(FN2.) Although the Massachusetts Declaration
of Rights may afford greater protection to an individual than the protection
afforded by the United States Constitution, see, e.g., District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648,
666‑667, 411 N.E.2d 1274 (1980),
Commonwealth v. Ortiz, 376 Mass. 349, 358, 380 N.E.2d 669 (1978), the same
factors are material to a consideration of the constitutionality under either
document of a roadblock stop of motor vehicles for the purpose of detecting
drunk drivers.
(FN3.) The Supreme Court and this court have
recognized that in the absence of consent or exigent circumstances a warrantless inspection of pervasively regulated businesses
may proceed without probable cause or articulable
suspicion only when specifically authorized by an appropriate statute.
United States v. Biswell, 406 U.S. 311,
317, 92 S.Ct. 1593, 1597, 32 L.Ed.2d 87 (1972).
Commonwealth v. Accaputo, 380 Mass. 435,
438‑439, 404 N.E.2d 1204 (1980).