|
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. Shields, 402
Supreme Judicial Court of Massachusetts,
Argued
Decided
Conrad W. Fisher, Worcester, for the
defendant.
Harry D. Quick, III, Asst. Dist. Atty., for
the Com.
Marjorie Heins,
James M. Shannon, Atty. Gen., Madelyn Wessel,
Judith Saltzman, Tung Huynh, Asst. Attys. Gen., and Stanley E. Adelman, Boston,
for the Secretary of Public Safety, amicus curiae, submitted a brief.
Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN,
LYNCH and O'CONNOR, JJ.
HENNESSEY, Chief Justice.
The
defendant, Thomas J. Shields, was stopped at a State police "sobriety
checkpoint" (roadblock) at [402
Shields
moved to suppress the evidence obtained following his stop at the roadblock,
contending that it was the fruit of an unlawful seizure. In support of this motion, Shields argued
that the Commonwealth must prove that no less intrusive alternative would be as
effective as roadblocks in enforcing c. 90, § 24, before the roadblock seizure
could be found to be constitutionally permissible and the evidence obtained at
the roadblock admitted. The Commonwealth
acknowledged that it must prove that the roadblock was conducted in accordance
with the procedures outlined in Commonwealth v. Trumble, 396 Mass. 81,
483 N.E.2d 1102 (1985), and Commonwealth
v. Mc 389 Mass. 137, 449 N.E.2d 349
(1983), but denied that it must disprove the existence of equally effective yet
less intrusive alternatives to enforcing c. 90, § 24, before the evidence
obtained at the roadblock could be admitted.
The
judge noted that resolution of the dispute was likely to be dispositive of
Shield's case, that the issue was likely to arise in similar proceedings, and
that an improper determination in the trial court that the Commonwealth must
disprove the existence of equally effective, less intrusive alternatives to
roadblocks would result in unnecessary expenditure of judicial resources at
trial. Accordingly, the judge properly
reported the following two questions to the
The
defendant grounds his argument in both the Fourth Amendment to the Constitution
of the United States and art. 14 of the Declaration of Rights of the
Massachusetts Constitution. (FN1) We conclude that neither of these provisions
requires the Commonwealth to prove that there are no equally effective yet less
intrusive alternatives for enforcing G.L. c. 90, § 24, than roadblocks. We therefore answer question one in the
negative, and need not address question two.
[1]
The stop of Shield's motor vehicle was a seizure. Commonwealth v. Trumble,
supra 396 Mass. at 86, 483 N.E.2d 1102.
This seizure violates the Fourth Amendment and art. 14 only if it was
unreasonable. See, e.g., INS
v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984);
Commonwealth v. Sheppard, 394 Mass. 381, 391, 476 N.E.2d 541
(1985). Decisions of this court and of
the Supreme Court establish that there is "no ready test for determining
reasonableness other than by balancing the need to search [or seize] against
the invasion which the search [or seizure] entails." Commonwealth v. Silva, 366
Mass. 402, 405, 318 N.E.2d 895 (1974), quoting Camara v. Municipal Court of
the City & County of San Francisco, 387 U.S. 523, 536‑537, 87
S.Ct. 1727, 1734, 18 L.Ed.2d 930 (1967) (administrative search). See
Trumble, supra (to determine reasonableness of seizure court balances
"the public interest against 'the individual's right to personal security
free from arbitrary interference by law officers' "), quoting
United States v. Brignoni‑Ponce, 422 U.S. 873, 878, 95 S.Ct.
2574, 2579, 45 L.Ed.2d 607 (1975).
[2]
Because Shields was seized without a warrant, the Commonwealth bears the burden
of proving that the seizure was reasonable. Commonwealth v. Antobenedetto, 366 Mass.
51, 57, 315 N.E.2d 530 (1974). To carry
its burden of proving that the roadblock seizure was reasonable the
Commonwealth must show, at least, that the roadblock was conducted in
accordance with the guidelines established in Trumble, supra, and
Commonwealth v. McGeoghegan,[402
Mass. 165] 389 Mass. 137, 449 N.E.2d 349 (1983). See Commonwealth v. Amaral, 398 Mass. 98,
101, 495 N.E.2d 276 (1986). Adherence to
these guidelines, the content of which need not be recited here, assures that a
roadblock seizure is the result of a "plan embodying explicit, neutral
limitations on the conduct of individual officers." Brown v. Texas, 443 U.S.
47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). Conducting roadblocks in accordance with such
neutral criteria minimizes the risk "that the individual's reasonable
expectation of privacy [will be] 'subject to the discretion of the official in
the field.' " Delaware v. Prouse, 440 U.S. 648, 655,
99 S.Ct. 1391, 1397, 59 L.Ed.2d 660 (1979), quoting Camara, supra 387 U.S. at
532, 87 S.Ct. at 1732. Adherence to the
guidelines' requirements also assures that the surprise, fear, and
inconvenience to‑‑and therefore the intrusion on‑‑the
motoring public is minimized. See McGeoghegan, supra 389 Mass. at 143‑144,
449 N.E.2d 349. In sum, leaving aside
the question of less intrusive alternatives, where the Commonwealth shows that
a roadblock employed to enforce c. 90, § 24, was operated in accordance with
the established guidelines, the accompanying seizures, although not conducted
on the basis of individualized suspicion, are reasonable under the Fourth
Amendment and art. 14. Trumble, supra 396 Mass. at 89‑90,
483 N.E.2d 1102. (FN2)
[3]
Shields, of course, does not leave aside the question of less intrusive
alternatives. He argues that, in order
for the Commonwealth to meet its burden of showing that the roadblock seizure
at issue here was reasonable, it must prove that there was no [402 Mass. 166] equally effective yet less intrusive alternative to enforcing c.
90, § 24. We disagree.
Less
intrusive alternative analysis traditionally has not been employed in
determining the constitutional reasonableness of searches and seizures. Indeed, in one case involving a vehicle
search we declined to employ less intrusive alternative analysis and observed
that "[t]he fact that, in the abstract, less intrusive means might have been
used does not, by itself, render the search unreasonable."
Commonwealth v. Ortiz, 376 Mass. 349, 357, 380 N.E.2d 669 (1978),
citing
Cady v. Dombrowski, 413 U.S. 433, 447, 93 S.Ct. 2523, 2531, 37
L.Ed.2d 706 (1973). Accord
United States v. Sharpe, 470 U.S. 675, 687, 105 S.Ct. 1568, 1576, 84
L.Ed.2d 605 (1985) ("The question is not simply whether some other
alternative was available, but whether the police acted unreasonably in failing
to recognize or to pursue it"); United States v. Villamonte‑Marquez,
462 U.S. 579, 591‑592 n. 5, 103 S.Ct. 2573, 2581 n. 5, 77 L.Ed.2d 22
(1983);
United States v. Martinez‑Fuerte, 428 U.S. 543, 556‑557
n. 12, 96 S.Ct. 3074, 3082 n. 12, 49 L.Ed.2d 1116 (1976). The defendant does not address the language
quoted from Ortiz, supra, nor does he
indicate why the principle of that language is inapplicable in this case.
Article
14 and the Fourth Amendment proscribe only unreasonable law enforcement
conduct. As such, these provisions
evince a policy of accommodating the legitimate State interest in law
enforcement while preventing arbitrary searches and seizures. It would be inconsistent with that policy to
rule that, in order to prove that a search or seizure is lawful, the
Commonwealth must prove that each of a multiplicity of proffered hypothetical
courses of conduct if used would be either less effective or more
intrusive. Where the defendant merely
conjectures that equally effective yet less intrusive means of enforcing c. 90,
§ 24, exist, "[t]he [Commonwealth] is entitled in the interest of public
safety to bring all available resources to bear, without having to spell out
the exact efficiency coefficient of each component and of the separate effects
of any particular component." People v. Scott, 63 N.Y.2d 518, 528‑529,
483 N.Y.S.2d 649, 473 N.E.2d 1 (1984). The
focus of the inquiry is on the conduct which in fact occurred. The Commonwealth's burden is to prove that
the intrusion generated by that conduct is outweighed by the need to search or
seize.
Commonwealth v. Silva, supra 366 Mass. at 405, 318 N.E.2d 895.
[402 Mass. 167] We reject the defendant's
argument that the result we reach opens the door for suspicionless searches and
seizures in other contexts. Police will
not be allowed, for example, to cordon off "high crime areas" and
search all the people on the street.
Intrusions of this level, even for a limited search, require some degree
of articulable individualized suspicion. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968). Roadblock
seizures for enforcing c. 90, § 24, are virtually sui generis in this
regard. (FN3) Their constitutionality is based in large
measure on the lower expectation of privacy traditionally accorded to the
motoring public. See, e.g., Commonwealth v. Ortiz, supra 376 Mass.
at 357‑358 & n. 7, 380 N.E. 669, and cases cited; People v. Scott, supra 63
N.Y.2d at 525, 483 N.Y.S.2d 649, 473 N.E.2d 1.
We do not view our decision today as eroding the protection against
unreasonable searches and seizures afforded by art. 14 and the Fourth
Amendment.
Rather
than eroding the constitutional protection against unreasonable search and
seizure, our decision is consistent with precedent. Roadblock seizures have been upheld in the
absence of individualized suspicion and without a showing of no equally
effective yet less intrusive alternative. United States v. Martinez‑Fuerte,
supra 428 U.S. at 545, 556‑557 & n. 12, 96 S.Ct. at 3077, 3082
& n. 12, 49 L.Ed.2d 1116 (1976) (permanent roadblock conducted sixty‑six
miles from border to detect illegal aliens;
less intrusive alternative analysis rejected). See
Delaware v. Prouse, supra 440 U.S. at 663, 99 S.Ct. at 1401 (indicating
that roadblock stops of all oncoming traffic are permissible). In the analogous context of courthouse entry
searches we have approved an initial search not based on articulable
individualized suspicion so long as it "was no more intrusive than
necessary." Commonwealth v. Harris, 383 Mass. 655,
657, 421 N.E.2d 447 (1981). In the case
of roadblocks to enforce c. 90, § 24, compliance with the Trumble and McGeoghegan
guidelines assures that the initial seizure is [402 Mass. 168] no more
intrusive than necessary. We perceive
nothing in the prior decisions, nor anything in the nature of art. 14 or the
Fourth Amendment, which requires the Commonwealth to disprove the existence of
equally effective yet less intrusive alternatives to enforcing c. 90, § 24.
Although
there is some support elsewhere for the defendant's position, the result we
reach appears to be consistent with the weight of authority from other
jurisdictions. Some courts which have
addressed the constitutionality of roadblocks to prevent intoxicated driving
have required a showing of no less intrusive yet equally effective
alternatives. State v. Superior Court for the County of
Pima, 143 Ariz. 45, 48‑49, 691 P.2d 1073 (1984) (State sustaining its
burden).
State v. Koppel, 127 N.H. 286, 292, 499 A.2d 977 (1985) (State
constitutional grounds). Higbie v. State, 723 S.W.2d 802, 805
(Tex.Crim.App.1987). See
State v. Muzik, 379 N.W.2d 599, 604 (Minn.Ct.App.1985) (State must
demonstrate either need for roadblock or its superiority to less intrusive
alternatives). The majority of
jurisdictions discussing the existence of other alternatives, however, either
have rejected this requirement, People v. Bartley, 109 Ill.2d 273, 287, 93
Ill.Dec. 347, 486 N.E.2d 880 (1985), cert. denied, 475 U.S. 1068, 106 S.Ct.
1384, 89 L.Ed.2d 608 (1986), rev'g 125 Ill.App.3d 575, 578 (1984), which had
required a showing of no less intrusive yet equally effective alternative,
State v. Garcia, 500 N.E.2d 158, 162‑163 (Ind.1986), cert.
denied, 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 496 (1987), overruling
State v. McLaughlin, 471 N.E.2d 1125 (Ind.Ct.App.1984), which had
required a showing of no less intrusive yet equally effective alternative,
Little v. State, 300 Md. 485, 504‑506, 479 A.2d 903 (1984), People v. Scott, supra 63 N.Y.2d at 528‑529,
483 N.Y.S.2d 649, 473 N.E.2d 1, or have indicated that the presence of such
alternatives is merely one factor to be considered in determining the
constitutional reasonableness of the roadblock seizures. State v. Jones, 483 So.2d
433, 437‑438 (Fla.1986). State v. Deskins, 234 Kan. 529, 541, 673
P.2d 1174 (1983).
Question
one is answered in the negative.
Question two therefore need not be reached. This case is remanded for proceedings
consistent with this opinion.
[402 Mass. 169] LIACOS, Justice (dissenting, with whom LYNCH, J., joins).
A
review of the various decisions of the United States Supreme Court and of this
court, dealing with the constitutionality of automobile roadblocks, reveals how
the United States Supreme Court and, sadly, this court have slipped away from
basic constitutional principles.
Additionally, both the Federal decisions and our decisions offer an
almost classic illustration of dictum building on dictum to become a rule of
law. I write separately, in dissent,
because I hope to refocus this debate on the fundamental principles of the
jurisprudence of search and seizure law under both Federal and State
Constitutions.
The
fundamental principle under both the Fourth Amendment to the United States
Constitution and art. 14 of the Massachusetts Declaration of Rights has been
that no search or seizure is to be deemed "reasonable" unless based on
a warrant issued on probable cause.
(FN1) This rule, like any other
rule of law, has its exceptions, but it is basic. Yet, the court cavalierly brushes this rule
aside by stating erroneously that:
"The basic issue is the reasonableness of the search, not the
presence or absence of probable cause to believe evidence of a crime is likely
to be found." Ante at 990 n. 2. We are told that the test of a reasonable
search or seizure is that of balancing the need to search or seize against the
invasion of privacy which the search or seizure entails. It is true in this case, as well as in the
companion case, Commonwealth v. Lovelace, 402 Mass. 1002,
521 N.E.2d 390 (1988), [402 Mass.
170] decided this day, (FN2) that
the parties also do not address this fundamental issue. It is true that this court did not come
squarely to grips with this question in Commonwealth v. McGeoghegan, 389 Mass.
137, 449 N.E.2d 349 (1983), or in Commonwealth v. Trumble, 396 Mass. 81,
483 N.E.2d 1102 (1985), or in Commonwealth v. Amaral, 398 Mass. 98, 495
N.E.2d 276 (1986).
Additionally,
I do not believe that the court has faced up to the potential differences of
result as matter of State constitutional law, but rather has followed the
vacillating lead of the United States Supreme Court. (FN3)
See, e.g., McGeoghegan, supra
389 Mass. at 141 n. 2, 449 N.E.2d 349 (same factors are material under Federal
and State Constitutions; no discussion);
Trumble, supra 396 Mass. at 89‑90, 483 N.E.2d 1102 (seizure
pursuant to McGeoghegan guidelines
would be reasonable under State and Federal Constitutions; no discussion); id. at 96 n. 3, 483 N.E.2d
1102 (Abrams, J., concurring) (no separate argument made by
defendants); Amaral, supra 398 Mass. at 101, 495
N.E.2d 276 (roadblock invalid under art. 14 and probably so under Fourth
Amendment for failure to meet McGeoghegan
guidelines; no discussion of differences
between State and Federal law‑‑or of probable cause or the warrant
requirements).
Let
us start with a look at McGeoghegan
in an effort to illustrate where we have gone astray. In that case we ruled that stopping a vehicle
in a police roadblock "was a seizure within the meaning of the Fourth and
Fourteenth Amendments." McGeoghegan, supra 389 Mass. at 139, 449
N.E.2d 349. We also recognized that
"[t]he 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, [422 U.S. 873, 881, 95 S.Ct.
2574, 2580, 45 L.Ed.2d 607 (1975) ]." Id.
We acknowledged also the holding of Delaware v. Prouse, 440 U.S. 648, 99
S.Ct. 1391, 59 L.Ed.2d 660 (1979), [402
Mass. 171] that random stops for
license and registration checks could not be justified absent "at least
articulable and reasonable suspicion." Id. at 663, 99 S.Ct. at 1401. (FN4)
We then went forward, in dictum, to build on the dictum in Delaware v. Prouse, (FN5) and set forth
guidelines of reasonableness as to roadblocks.
(FN6)
The
dictum of McGeoghegan, built on the
dictum of Delaware v. Prouse, seems
to have become the rule shortly thereafter in Commonwealth v. Trumble, supra.
(FN7) The court stated [402 Mass. 172] in Trumble, supra 396 Mass. at 86, 483
N.E.2d 1102: "It is well
established that the stopping of each defendant's motor vehicle was a seizure
within the Fourth and Fourteenth Amendments to the United States Constitution.
Delaware v. Prouse, 440 U.S. 648, 653‑654, 99 S.Ct. 1391,
1395, 59 L.Ed.2d 660 (1979). Our inquiry
becomes, therefore, whether the seizures were reasonable. McGeoghegan, supra 389
Mass. at 139, 449 N.E.2d 349. Accordingly, we must balance the public
interest against 'the individual's right to personal security free from
arbitrary interference by law officers.'
United States v. Brignoni‑Ponce, 422 U.S. 873, 878, 95 S.Ct.
2574, 2578, 45 L.Ed.2d 607 (1975)."
(Emphasis supplied.) Thus,
"balancing," not probable cause, reasonable and articulable
suspicion, or the presence or absence of a warrant, became the test. (FN8)
The court today falls into the same error when it states, ante at 989: "Decisions of this court and of the
Supreme Court establish that there is 'no ready test for determining
reasonableness other than by balancing the need to search [or seize] against
the invasion which the search [or seizure] entails.' Commonwealth v. Silva, 366 [402 Mass. 173] Mass. 402, 405 [318 N.E.2d 895] (1974), quoting
Camara v. Municipal Court of the City & County of San Francisco,
387 U.S. 523, 536‑537 [87 S.Ct. 1727, 1734, 18 L.Ed.2d 930] (1967)
(administrative search). See
Trumble, supra [396 Mass. at 86, 483 N.E.2d 1102] (to determine
reasonableness of seizure court balances 'the public interest against "the
individual's right to personal security free from arbitrary interference by law
officers," ' quoting United States v. Brignoni‑Ponce,
422 U.S. 873, 878 [95 S.Ct. 2574, 2578, 45 L.Ed.2d 607] [1975] )." (FN9)
I
have pointed out already the flaw in the
Trumble reasoning. I add just a
brief comment as to Commonwealth v.
Silva, supra, which the court cites for support today. Silva was not a roadblock
case but a stop and frisk case involving a disabled passenger vehicle. The ensuing search of the vehicle was held
unlawful as being excessive, even though the initial stop was lawful. The "balancing" done in Silva was not as to the initiation of
the stop (seizure), but as to the extent of the intrusion. Silva clearly adheres to
the requirement of individualized suspicion and does not support the court's
sweeping assertions in Trumble, or in
the present case.
The
court refers also to Commonwealth v. Ortiz, 376 Mass. 349, 380
N.E.2d 669 (1978), as further support for its position. In Commonwealth v. Ortiz, supra at 353, 380
N.E.2d 669, however, we stated:
"The Commonwealth bears the burden of showing the existence of both
probable cause to believe the car contained contraband and exigent
circumstances to justify the seizure without a search warrant. See Commonwealth v. Antobenedetto, 366 Mass.
51, 57, 315 N.E.2d 530 (1974)."
(FN10)
[402 Mass. 174] To justify further its
position, the court has referred in Trumble,
and in this opinion, to the "strong public interest" ( Trumble, supra 396 Mass. at 86, 483
N.E.2d 1102), in reducing the harm done by drunken drivers. The results the court reaches today are
described as "sui generis," limited to this large social need, based
also, in part, on the "lower expectations of privacy" accorded the
motoring public. The approach taken
here, we are assured, cannot be extended to "high crime areas." One must assume then that (under the Federal
case law), only detection of aliens at fixed border roadblocks, see
United States v. Martinez‑Fuerte, 428 U.S. 543, 96 S.Ct. 3074,
49 L.Ed.2d 1116 (1976), and (under State law) apprehension of drunken drivers
raise the level of public interest to the point where we shall put aside traditional
rules and balance, instead, public interest against privacy interests. Does this mean that drug dealing and illegal
possession of deadly weapons are lesser concerns? Or does it means that pedestrians are safe,
but drivers and passengers are fair game?
More likely, it means that "sui generis," however well meant,
is an illusory promise.
Automobiles
are not beyond the Fourth Amendment's protection. Consider these words in Almeida‑Sanchez v. United
States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537, 37 L.Ed.2d 596 (1973),
referring to the exception to the warrant requirement as to automobiles created
by
Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543
(1925): "The Carroll doctrine does not declare a field day for the police in
searching automobiles. Automobile or no
automobile, there must be probable cause for the search."
The
public's interest in barring the entry of illegal aliens and those interests
involving enforcement of liquor laws, including the apprehension of drunken
drivers, are not necessarily the same.
The Court, in Almeida‑Sanchez, supra 413 U.S. at
274‑275, 93 S.Ct. at 2540, recognized this when it quoted Chief Justice
Taft in Carroll as follows: " 'It would be intolerable and
unreasonable if a prohibition agent were authorized to stop every automobile on [402 Mass. 175] the chance of finding liquor and thus subject all persons
lawfully using the highways to the inconvenience and indignity of such a
search. Travellers may be so stopped in
crossing an international boundary because of national self protection
reasonably requiring one entering the country to identify himself as entitled
to come in, and his belongings as effects which may be lawfully brought
in. But those lawfully within the
country, entitled to use the public highways, have a right to free passage
without interruption or search unless there is known to a competent official
authorized to search, probable cause for believing that their vehicles are
carrying contraband or illegal merchandise.'
267 U.S., at 153‑154 [45 S.Ct., at 285]."
In
United States v. Ortiz, 422 U.S. 891, 896‑897, 95 S.Ct. 2585,
2588, 2589, 45 L.Ed.2d 623, the Court invalidated a border checkpoint seizure
and said: "A search even of an
automobile, is a substantial invasion of privacy. To protect that privacy from official
arbitrariness, the Court always has regarded probable cause as the minimum
requirement for a lawful search. Almeida‑Sanchez, 413 U.S., at 269‑270
[93 S.Ct. at 2537]; Chambers v. Maroney, 399 U.S. 42, 51 [90
S.Ct. 1975, 1981, 26 L.Ed.2d 419] (1970).
We are not persuaded that the differences between roving patrols and
traffic checkpoints justify dispensing in this case with the safeguards we
required in Almeida‑Sanchez. We therefore follow that decision and hold
that at traffic checkpoints removed from the border and its functional
equivalents, officers may not search private vehicles without consent or
probable cause."
Unfortunately,
all of its own strictures were abandoned by the Court in United States v. Martinez‑Fuerte,
428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). There the Court, for the first time, upheld
border checkpoint stops on the basis of the "substantiality of the public
interest" and the impracticality of requiring reasonable suspicion as the
basis of the stop. Id. at 556, 96 S.Ct. at 3082. Justice Brennan's statement in dissent
should be our guide: "Consistent
with this purpose to debilitate Fourth Amendment protections, the Court's
decision today virtually empties the Amendment of its reasonableness
requirement by holding that law enforcement officials manning fixed checkpoint
stations who make standardless seizures of persons do not violate the
Amendment. This holding cannot be squared
with this Court's recent decisions [402
Mass. 176] in United States v. Ortiz, [supra
];
United States v. Brignoni‑Ponce, 422 U.S. 873, 95 S.Ct. 2574,
45 L.Ed.2d 607 (1975); and
Almeida‑Sanchez v. United States, [supra ]. I dissent."
United States v. Martinez‑Fuerte, supra 428 U.S. at 568‑569,
96 S.Ct. at 3087 (Brennan, J., dissenting).
More
recently, when this "sui generis" concept was extended to drug
searches of boats on interior waterways, Justice Brennan commented in
United States v. Villamonte‑Marquez, 462 U.S. 579, 610, 103 S.Ct.
2573, 2591, 77 L.Ed.2d 22 (1983) (Brennan, J., dissenting): (FN11) "In dissent in Martinez‑Fuerte, I expressed my fear that the Court's
decision was part of a 'continuing evisceration of Fourth Amendment protections
against unreasonable searches and seizures.'
428 U.S., at 567, 96 S.Ct. at 3087.
The majority chided me for my rhetoric and my 'unwarranted concern,'
pointing out that its holding was expressly and narrowly limited: 'Our holding today, approving routine stops
for brief questioning ... is confined to permanent checkpoints.'
Id., at 566, n. 19, 96 S.Ct. at 3087 n. 19. Today the Court breaks that promise. I dissent." (FN12)
In my
view, the same lapses are infecting this court with a foreseeable expansion of
the doctrine reiterated today. We have
not hesitated to grant to our citizens greater protection under art. 14, (FN13)
and we should do so here. In Trumble, Justice [402 Mass. 177] Lynch
concluded his dissent (in which I joined), by asking the court to justify its
departure from its "traditional concern" for privacy rights. He stated:
"The court's holding that the
seizures at the Sunderland roadblocks were reasonable contrasts sharply with
other decisions of this court concerning the scope of protection afforded by
the Fourth Amendment. See, e.g.,
Commonwealth v. Pietrass, 392 Mass. 892, 898‑900, 467 N.E.2d
1368 (1984) (even though there was probable cause to arrest the
defendant on charges of aggravated rape and other violent crimes, the
Commonwealth failed to meet its burden of showing exigency, so the police were
not justified in making a warrantless entry of a dwelling to arrest him);
Commonwealth v. Thibeau, 384 Mass. 762, 763‑764, 429 N.E.2d
1009 (1981) (even though defendant was riding a bicycle, a known means of transporting
illegal drugs, and made a sudden left turn as police cruiser approached, police
lacked probable cause to arrest him and seize envelopes containing narcotics
that were sticking out of his pocket); Commonwealth v. Bacon, 381 Mass. 642,
645‑646, 411 N.E.2d 772 (1980) (police were not justified in making
investigatory stop of relatively expensive motor vehicle operated by two
youthful appearing men, even though one attempted to conceal his face,
presumably from police view). I am
unable to reconcile the court's ruling that the Commonwealth has sustained its
burden in this case with the traditional concern this court has expressed for
protecting Fourth Amendment rights.
Here, the court concludes that the warrantless stop of 503 vehicles was
justified even though the police lacked a basis for suspecting that any
particular operator was or [402
Mass. 178] had been engaged in
criminal activity. The court gives no
satisfactory explanation for why it has suddenly lowered the threshold showing
which the Commonwealth has traditionally been required to make to justify a
warrantless stop or arrest."
Commonwealth v. Trumble, 396 Mass. 81, 101‑102,
483 N.E.2d 1102 (1985).
Today's decision again fails to give a
"satisfactory explanation" for "lower [ing] the
threshold." Accordingly, I
dissent. (FN14)
(FN1.) Article 14 provides in some
circumstances greater protection from searches and seizures than does the
Fourth Amendment. See, e.g.,
Commonwealth v. Upton, 394 Mass. 363, 372‑377, 476 N.E.2d 548
(1985) (stricter standard for determining probable cause under art. 14).
(FN2.) The question of probable cause has not
been raised in this case (or in the companion case we decide today). Nor was the subject of probable cause
presented or discussed in our earlier opinions concerning roadblocks. The dissent nevertheless volunteers a
discussion on the question.
The basic issue is the
reasonableness of the search, not the presence or absence of probable cause to
believe evidence of a crime is likely to be found. In administrative searches a showing of
individualized suspicion is not required because of the public interest in the
inspection. See Camara, supra 387 U.S. at 534‑535, 87 S.Ct. at 1733. The same considerations fairly apply with
respect to roadblocks conducted pursuant to established procedures in order to
detect drivers operating under the influence of alcohol or other drugs. See 4 W.R. LaFave, Search and Seizure §
10.8(d), at 70‑71 (1987). That
probable cause need not be shown as to the driver who is stopped is implicit in
what we said in Commonwealth v. Trumble,
supra 396 Mass. at 89‑90, 483 N.E.2d 1102, when we concluded that a
search pursuant to established guidelines would be reasonable under both the
Federal and State Constitutions. See also id.
at 96, 483 N.E.2d 1102 (Abrams, J., concurring).
(FN3.) The strong State interest in
eliminating "[t]he carnage caused by drunk drivers,"
South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 919, 74
L.Ed.2d 748 (1983), sets roadblocks to enforce c. 90, § 24, apart from
roadblocks for other purposes. Although
the Supreme Court has indicated that roadblock seizures to enforce license and
registration regulations do not violate the Fourth Amendment,
Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 1541, 75 L.Ed.2d
502 (1983), it may well be, given the much lower State interest in assuring
compliance with license and registration regulations, that roadblocks for that
purpose are not permissible under art. 14.
(FN1.) The Fourth Amendment states: "The right of the people to be secure in
their persons, houses, papers and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized."
Article
14 of the Massachusetts Declaration of Rights states: "Every subject has a right to be secure
from all unreasonable searches, and seizures, of his person, his houses, his
papers, and all his possessions. All
warrants, therefore, are contrary to this right, if the cause or foundation of
them be not previously supported by oath or affirmation; and if the order in the warrant to a civil
officer, to make search in suspected places, or to arrest one or more suspected
persons, or to seize their property, be not accompanied with a special
designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in
cases, and with the formalities prescribed by the laws."
(FN2.) Justice Lynch and I disagree with the
opinion in Lovelace for the reasons
stated here.
(FN3.) For a comprehensive analysis of the
retreat of the United States Supreme Court from fundamental Fourth Amendment
principles, see Wasserstrom, The Incredible Shrinking Fourth Amendment, 21
Am.Crim.L.Rev. 257 (1984).
(FN4.) The Supreme Court held, in
Delaware v. Prouse, supra at 663, 99 S.Ct. at 1401, as follows: "Accordingly, we hold that except in
those situations in which there is at least articulable and reasonable
suspicion that a motorist is unlicensed or that an automobile is not
registered, or that either the vehicle or an occupant is otherwise subject to
seizure for violation of law, stopping an automobile and detaining the driver
in order to check his driver's license and the registration of the automobile
are unreasonable under the Fourth Amendment."
(FN5.)
The dictum in McGeoghegan relied on
is: "This 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. We hold only that persons
in automobiles on public roadways may not for that reason alone have their
travel and privacy interfered with at the unbridled discretion of police
officers." Delaware v. Prouse, supra.
(FN6.) In McGeoghegan, supra 389 Mass. at 143‑144,
449 N.E.2d 349, we said, by way of "observations": "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 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."
It
is worthy to note that the roadblock in
McGeoghegan was ruled unconstitutional;
Justice Nolan, the author of Commonwealth v. Trumble, 396 Mass. 81,
483 N.E.2d 1102 (1985), dissented in
McGeoghegan.
(FN7.)
Trumble came to the court on reservation and report of questions which
focused on the validity of roadblock guidelines, not on the question of
probable cause or the need of a warrant.
The primary question reported was:
"Were guidelines promulgated by the Secretary of Public Safety to
govern drunk driving roadblocks properly promulgated and did they make adequate
provisions so as not to offend the guarantees of the Fourth and Fourteenth
Amendments to the United States Constitution, Articles 12 and 14 of the
Massachusetts Declaration of Rights and Massachusetts General Laws, Chapter 41,
Section 98?" Id. 396 Mass. at 82, 483 N.E.2d 1102.
Being
the single justice who reported the questions in the form requested by the
parties, I bear some responsibility for the limited nature of the court's
response. The present case is also
before the court on reported questions which limit arguably the range of our
inquiry. See ante at 988‑989. Commonwealth v. Lovelace, 402 Mass.
1002, 521 N.E.2d 390 (1988), is here on appeal, however, and the court's
grouping of the two cases justifies the conclusion that all issues are open to
us.
(FN8.) Contrast this with the actual holding
in Delaware v. Prouse, quoted in note
4 supra. Contrast this also with the actual holding
in Brignoni‑Ponce, that a
roving patrol stop was unconstitutional, and holding also that, "when an
officer's observations lead him reasonably to suspect that a particular vehicle
may contain aliens who are illegally in the country, he may stop the car
briefly and investigate the circumstances that provoke suspicion."
Brignoni‑Ponce, supra 422 U.S. at 881, 95 S.Ct. at 2580. The Supreme Court's citation to
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and
related cases, put "balancing" in proper context. The Court, referring to Terry and Adams v. Williams, 407 U.S. 143, 92 S.Ct.
1921, 32 L.Ed.2d 612 (1972), indicated that a lesser standard of probable cause
(articulable and reasonable suspicion) limits the nature and scope of the
permissible seizure and intrusion.
(FN9.)
The process I describe brings to mind the well‑known comment of Justice
Frankfurter, in United States v. Rabinowitz, 339 U.S. 56,
68, 70 S.Ct. 430, 436, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting): "These decisions do not justify today's
decision. They merely prove how a hint
becomes a suggestion, is loosely turned into dictum and finally elevated to a
decision. This progressive distortion is
due to ... uncritical confusion...." Id. at 75, 70 S.Ct. at 439.
(FN10.) The court also states, ante at 991, that, "[i]n the
analogous context of courthouse entry searches we have approved an initial
search not based on articulable individualized suspicion so long as it 'was no
more intrusive than necessary.' Commonwealth v. Harris, 383 Mass. 655,
657 [421 N.E.2d 447] (1981)." Harris does not support the court's
position because (a) the "search" was not, as here, for the purpose
of detection of crime (Harris, supra
); and (b) the "search" was
found to be consensual. Id.
The fact that the limited intrusion in Harris was consensual was recognized in McGeoghegan, supra 389
Mass. at 140, 449 N.E.2d 349, where we said, as to Harris: "We recognized
the search to be consensual in the same way as in the airport search
cases...." No argument is made that
drivers explicitly or impliedly consent to roadblocks, and, despite its
unfounded reliance on Harris, I do
not understand the court to rest its decision on such a questionable premise.
(FN11.) See also the Court's review of the
automobile stop cases in Villamonte‑Marquez, supra 462 U.S.
at 587‑589, 103 S.Ct. at 2579.
(FN12.) The danger inherent in the Martinez‑Fuerte approach is even
more strikingly illustrated by INS v. Delgado, 466 U.S. 210, 104 S.Ct.
1758, 80 L.Ed.2d 247 (1984). There, the
Court, for the first time, excluded altogether Fourth Amendment consideration
from certain law enforcement encounters.
The Court held that detailed interrogation of individuals during a
factory raid by immigration service agents did not amount to a seizure,
notwithstanding the presence of immigration agents moving systematically
through the factory asking about immigration status, while other agents
stationed themselves at every exit for the duration of a several hour
raid. Justice Brennan recognized that
"the Court has become so mesmerized by the magnitude of the [illegal
immigration] problem that it has too easily allowed Fourth Amendment freedoms
to be sacrificed." Id. at 239‑240, 104 S.Ct. at 1775
(Brennan, J., concurring in part and dissenting in part). Delgado demonstrates all
too clearly that constitutional reasoning in one context is ultimately
inseparable from other contexts.
(FN13.) See, e.g., Commonwealth v. Blood, 400
Mass. 61, 67‑75, 507 N.E.2d 1029 (1987) (electronic surveillance);
Commonwealth v. Ford, 394 Mass. 421, 426, 476 N.E.2d 560 (1985)
(inventory search of automobile); Commonwealth v. Upton, 394 Mass. 363,
373, 476 N.E.2d 548 (1985) (determination of probable cause). See also Murphy, The Role of Massachusetts
State Constitutional Law in Litigation Strategies for the Trial of Drunk
Driving Case under the "Safe Roads Act" of 1986, 72 Mass.L.Rev. 120
(1987).
If
the court feels that the issues which I discuss have not been argued by the
parties, the wiser course would be to set these cases down for reargument. Fundamental constitutional considerations
ought not to be ignored because of the vagaries of the adversary system.
(FN14.) I have not addressed the "less
intrusive alternative" issue for two reasons: (1) Justice Lynch's dissent in Trumble covers the point fully; and (2) the need to address the issue of the
basis of a seizure in the context of police roadblocks has seemed to me to be
overriding. I remain, however, in accord
with Justice Lynch's views on the point of less intrusive alternatives. Additionally, I have not addressed the
warrant requirement. See
Almeida‑Sanchez v. United States, supra 413 U.S. at 275, 282‑285,
93 S.Ct. at 2544 (Powell, J., concurring).
Cf. Camara v. Municipal Court of the City &
County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930
(1967);
See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967);
State v. Olgaard, 248 N.W.2d 392, 395 (S.D.1976). Compare Opinion of the Justices, 128 N.H. 14, 509
A.2d 744 (1986), with State v. Koppel, 127 N.H. 286, 499 A.2d
977 (1985).