|
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. Tuitt, 393
Supreme Judicial Court of Massachusetts,
Argued
Decided
Byron D. Caplice, for Edward
F. Massey.
Robert J. Bray, for John F.
Trumble & another.
Edward F. Berlin, Asst.
Dist. Atty., for the Commonwealth.
Francis X. Bellotti, Atty.
Gen., Carl Valvo, Asst. Atty. Gen., & Stanley E. Adelman, Sp. Asst. Atty.
Gen., for the Secretary of Public Safety, amicus curiae, submitted a brief.
Before [396
NOLAN, Justice.
On
July 2 and 3, 1983, State Police officers conducted a roadblock on Route 116 in
"1.
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? (FN2)
[396 Mass. 83] "2. If the answer to Question 1 is in the affirmative, was
the roadblock conducted on July 2nd and July 3rd, 1983 on Route 116 in
Sunderland, executed in substantial compliance with the guidelines promulgated
by the Secretary of Public Safety 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?
"3.
If the answer to Question 2 is in the affirmative, would a future roadblock
conducted in substantial compliance with the guidelines in this case but
without any notice or publicity still not 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?"
For
the reasons set forth below, we answer "Yes" to Questions 1 and 2 as
we interpret them. We choose not to
address the issues presented by Question 3.
We have reproduced the guidelines in an Appendix to this opinion.
1. Factual background. The facts, as agreed upon by the parties,
may be summarized as follows.
A. Development and dissemination of the
guidelines. In March of 1983, the
Governor of the Commonwealth and Charles V. Barry, Secretary of Public Safety
of the Commonwealth, decided to implement a series of roadblocks in an attempt
to deter drunk driving. Lieutenant
Thomas K. Kennedy, the head of Research and Development for the State Police,
in consultation with several individuals and organizations, (FN3) created a set
of guidelines relative to roadblocks.
The guidelines were developed with a view toward compliance with this
court's opinion in Commonwealth v.
McGeoghegan, 389 Mass. 137, 449 N.E.2d 349 (1983). The guidelines were never officially
promulgated as certain regulations are required to be promulgated. [396
Mass. 84] See generally G.L. c. 30A, §§ 2‑3
(State Administrative Procedure Act).
On
May 20, 1983, Secretary Barry's office decided that the first such roadblocks
would be conducted on the upcoming July fourth weekend. On June 28, 1983, a training session was held
at the State Police Academy. Captain
James Port, Commanding Officer of the State Police Traffic Bureau, conducted
the session, which was intended to train those in attendance to implement the
guidelines at roadblocks to be conducted during the July fourth weekend. Those invited to the training session
included the heads of all the State Police troops in the Commonwealth, as well
as their assistants. Each person who
attended the session received a copy of the guidelines.
At
this training session, Port emphasized that there should be no deviations from
the guidelines while the roadblocks were being conducted. If an emergency occurred, any change in the
procedures set forth in the guidelines would have to be made by the supervising
officer.
A
second training session took place at the Academy on June 30, 1983. At this session, a demonstration roadblock
was conducted in accordance with the instructions provided at the June 28
session. Those attending the sessions
were told that the following criteria were to be applied in selecting a
roadblock site: high accident rates,
high rates of drunk driving arrests, safety conditions, and motorist
convenience.
B. The Sunderland roadblock. Captain Thomas J. Fitzgerald, the captain in
charge of the State Police in Western Massachusetts, accompanied by several
assistants, attended the June 28 training session. Captain Fitzgerald also attended the June 30
session. He chose the site for the
Sunderland roadblock, which was conducted on Route 116. The Route 116 patrol area is a high fatality
area, and one with a high rate of drunk driving arrests.
The
roadblock detail began at 7 P.M. on July 2, 1983. Thirteen uniformed State Police officers,
including Captain Fitzgerald and one other officer who had attended the June 28
training session, took part in the roadblock.
Each trooper received approximately one hour of training, during which
Fitzgerald[396 Mass. 85]
explained the procedures set forth in the guidelines. Fitzgerald trained the troopers as he had
been instructed at the two training sessions at the Academy. The roadblock was conducted in a manner
consistent with the training of Fitzgerald.
The
troopers were instructed to stop every automobile as it approached the
roadblock site, but to allow trucks and tractor‑trailer units to pass
through the roadblock without stopping.
They were told that the initial contact would be no more than one minute
for each individual operator. During
that brief period, the troopers were to say "Good evening, how are you,
this is a State Police sobriety checkpoint, we would like you to have a copy of
the brochure on drunk driving laws."
If the troopers saw no problems, they were to say "Thank you,"
and allow the vehicle to proceed. The
actual stopping time at the roadblock was approximately thirty seconds. During that period, the trooper was
instructed to observe the operator, as well as the interior of the vehicle, to
determine if there was any suspicion that the operator had been drinking.
If
the trooper suspected that the operator had been drinking, the trooper was to
instruct the operator to drive to a detention area. Unless the operator was extremely
intoxicated, he or she would be permitted to drive the vehicle into this
area. In the detention area, a driver
would be asked to produce a license and registration, and to perform three
field sobriety tests.
The
roadblock began at approximately 11:30 P.M. on July 2, 1983, and ended at
approximately 2 A.M. on July 3, 1983.
Five hundred and three vehicles approached the roadblock. Each was stopped. Sixteen operators were detained for further
checks. Eight operators, including the
three defendants, were arrested.
C. Publicity. Prior to the July fourth weekend,
information concerning the upcoming roadblocks was provided to the news media,
including television, radio, and print.
Secretary Barry and Captain Fitzgerald both spoke to members of the
media. The public relations office of
the State Police distributed press releases to over four hundred news media
affiliates within the State. Several
newspapers, radio stations, and television stations in Hampshire county
disseminated information about the roadblocks both prior to and during the
holiday weekend.
[396 Mass. 86] [1] 2. Constitutional setting. We note that "[a]lthough the
Massachusetts Declaration of Rights may afford greater protection to an
individual than the protection afforded by the United States Constitution, ...
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" (citations omitted). Commonwealth v. McGeoghegan,
supra, at 141 n. 2, 449 N.E.2d 349.
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, 1395‑1396, 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, 2579, 45 L.Ed.2d 607 (1975). Some
courts have thought it important in a constitutional sense that the prosecution
demonstrate that, in dealing with the problem of drunk drivers, there is no
alternative to roadblocks that would be as effective as, and less intrusive
than, roadblocks. See State v. Superior Court, 143 Ariz. 45,
691 P.2d 1073 (1984); State v. Deskins, 234 Kan. 529, 541, 673
P.2d 1174 (1983); State v. Koppel, 499 A.2d 977, 981 (N.H.,
1985). We construe the questions asked
of us as not raising this issue or the underlying question whether, for
constitutional purposes, it matters whether there may be a less intrusive but
equally effective means of dealing with the problem. Our construction of these questions is
consistent with the views of the parties, who have not argued these points.
[2]
Clearly there exists a strong public interest in reducing the "carnage
caused by drunk drivers." South Dakota v. Neville, 459 U.S. 553,
558, 103 S.Ct. 916, 920, 74 L.Ed.2d 748 (1983).
We take notice that traditional methods of law enforcement in this area
have failed. Each year, over 25,000
people die in traffic accidents in which alcohol consumption is involved. H.R.Rep. No. 867, 97th Cong., 2d Sess. 7,
reprinted in 1982 U.S.Code Cong. & Ad.News 3367. This total represents approximately half of
the deaths resulting from motor vehicle accidents which occur on [396 Mass. 87] our nation's roads each year. Id.
In addition, over the past ten years more than one million people have
received serious injuries in accidents involving drunken drivers. Massachusetts Senate Comm. on Post Audit and
Oversight, Drinking and Driving in Massachusetts: Statutory Options and Recommendations 1
(1982). Studies suggest that, on any
weekend night in Massachusetts, between five and ten per cent of all drivers on
the road will be seriously impaired by alcohol. Id.
In McGeoghegan, we considered whether a
roadblock designed to detect drunk drivers could be conducted in a manner that
would be constitutionally permissible.
After considering relevant Supreme Court decisions in the area, we
suggested that for a roadblock to be permissible, "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." McGeoghegan, supra, 389 Mass. at 143, 449
N.E.2d 349. We further suggested that
advance notice of an intended roadblock, although perhaps not constitutionally
mandated, would be appropriate because it would "have the virtue of
reducing surprise, fear, and inconvenience." Id. We remain of the opinion that the above
standards are relevant to any analysis of the validity of a roadblock procedure
under both the State and Federal Constitutions.
Cases
from other States which have considered roadblocks executed under guidelines
are supportive. See, e.g., Stark v. Perpich, 590 F.Supp. 1057
(D.Minn.1984); State v. Golden, 171 Ga.App. 27, 318
S.E.2d 693 (1984); Little v. State, 300 Md. 485, 479 A.2d
903 (1984). Cf. State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 663 P.2d 997
(1983).
3. Question 1: "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?"
[396 Mass. 88] Promulgation of the
guidelines. (FN4) The defendants argue that the roadblock
guidelines constituted "regulations" as that word is defined in G.L.
c. 30A, § 1(5) (1984 ed.), (FN5) and that therefore the guidelines are invalid
because they were not promulgated as required by the State Administrative
Procedure Act. See G.L. c. 30A, §§ 2‑6. The defendants claim that the guidelines were
of no effect and, consequently, the defendants' arrests constituted a denial of
due process and a violation of their constitutional rights.
[3]
The defendants argue that the guidelines are of "general
application," and thus fall within the purview of the Act. Determining whether a particular guideline or
pronouncement constitutes a "regulation" under the Act may be a
difficult task. (FN6) The language of the definition reflects an
intent that it be interpreted broadly.
See Curran and Sacks, The Massachusetts Administrative Procedure Act, 37
B.U.L.Rev. 70, 77 (1957). We conclude
that these guidelines did not constitute a regulation.
[396 Mass. 89] The guidelines concern the "internal management" of the
State Police department, and thus they fall within the exemption from the
definition of a regulation by clause (b
) of § 1(5). We reject the defendants'
interpretation of clause (b) as only applicable to rules concerning the
organizational structure of an agency.
The guidelines are directed solely toward troopers, and instruct them as
to the manner in which they are to fulfil their duties. Thus, they do concern the internal management
of this agency.
Clause
(b ) only applies to regulations that
do not "substantially affect [ ] the rights of or the procedures available
to the public...." The guidelines
describe the purpose and operational philosophy underlying the use of
roadblocks. They limn important
procedural and safety considerations.
The guidelines reflect an attempt to ensure that the State Police
execute roadblocks in compliance with the principles articulated in Commonwealth v. McGeoghegan, supra. They do not purport directly to regulate
public conduct. The guidelines are
simply an accurate reflection of the rights of the public as set forth in McGeoghegan. We conclude that the guidelines are not
regulations as defined in G.L. c. 30A, § 1(5).
[4]
We turn to the roadblock procedures contained in the guidelines. The guidelines clearly proscribe the
arbitrary selection of vehicles to be stopped.
Ample provision is made to assure that the roadblock is conducted
safely, including clear directions on the manner in which the sites should be
selected and set up. The guidelines also
address the element of motorist inconvenience, both with respect to traffic
congestion and the brief nature of the initial stop. Furthermore, the guidelines require that a
roadblock be planned in advance by supervisory personnel. The plans must include "date, location,
time, duration, and set patterns of cars to be stopped." Finally, the guidelines provide that the
supervisors will announce the date of an intended roadblock to the news media,
at best three days prior to its implementation.
The
guidelines at issue clearly comport with the
McGeoghegan principles. Balancing
the procedures against the public's interest in curtailing drunk driving, we
conclude (without deciding[396 Mass.
90]
whether a roadblock is the least restrictive means or whether use of the
least restrictive means is constitutionally required) that a seizure made in
the course of a roadblock which is carried out pursuant to the guidelines would
be reasonable under both the State and Federal Constitutions.
[5]
4. Question 2: "If the answer to Question 1 is in the
affirmative, was the roadblock conducted on July 2nd and July 3rd, 1983 on
Route 116 in Sunderland, executed in substantial compliance with the guidelines
promulgated by the Secretary of Public Safety 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?"
The
Commonwealth bears the burden of proving the lawfulness of the Sunderland
roadblock. Commonwealth v. Antobenedetto, 366 Mass.
51, 57, 315 N.E.2d 530 (1974). The
roadblock was conducted pursuant to a plan developed by State Police
supervisory personnel. The parties agree that
"[t]he roadblock was conducted consistent with the training of Captain
Fitzgerald," who had received instruction at two roadblock training
sessions. Captain Fitzgerald chose the
roadblock site, following the criteria set forth in the guidelines. Publicity preceding the roadblock included
stories on the television and radio, as well as thirteen newspaper articles.
Thirteen
uniformed State troopers were present at the roadblock site. Five hundred feet before the stopping area
there was placed a four by five foot reflectorized sign which read "Stop
Ahead" "Roadblock." A
safety cruiser with all of its lights illuminated was positioned directly
across from the sign. Safety flares were
placed throughout the roadblock area. A
second sign and five flares were placed three hundred feet from the stopping
point. Four cruisers were parked close
to the stopping area. The stopping area
was brightly illuminated by lights from a police van.
The
troopers were instructed to stop every automobile that approached the
site. Captain Fitzgerald stressed to
those involved in the roadblock that there should be no deviation from the
procedures set forth in the guidelines.
Motorists passing [396 Mass.
91] through the roadblock were
stopped for approximately thirty seconds.
In
sum, the conduct of the roadblock was most reasonable and entirely responsive
to the requirements and directions laid down in McGeoghegan. The news
media ran numerous stories advising the public of the announcement by the
authorities that at least one roadblock would be conducted by the State police
somewhere within the area patrolled by the State police assigned to the
Northampton barracks. They limited the
time within which a motorist would be stopped.
The area was lighted and the police had no discretion in the selection
of motorists to be stopped. This is
clearly not arbitrary and capricious conduct.
There
is nothing in the statement of agreed facts to indicate that the guidelines
were not carefully followed in this case.
[6]
5. Question 3: "If the answer to Question 2 is in the
affirmative, would a future roadblock conducted in substantial compliance with
the guidelines in this case but without any notice or publicity still not
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?"
We
choose not to address this issue. As a
general rule, this court does not express an opinion on hypothetical questions
involving constitutional law. Solomon v. School Comm. of Boston, 395
Mass. 12, 19, 478 N.E.2d 137 (1985). The
defendant has ignored it completely and the Commonwealth's brief has given us
the benefit of only two paragraphs. We
leave this constitutional question for another day. See
Commonwealth v. Paasche, 391 Mass. 18, 21, 459 N.E.2d 1223 (1984).
6.
We answer "Yes" to Questions 1 and 2, as we have construed them. We decline to answer Question 3. The case is remanded to the county court for
disposition consistent with this opinion.
[396 Mass. 92] APPENDIX
"MASSACHUSETTS STATE
POLICE DWI ROADBLOCK ENFORCEMENT
"PURPOSE: Apprehension of individuals driving while
drunk or while under the influence of alcohol or drugs.
"METHOD: Use of pre‑selected roadblock locations
conducted under the following guidelines.
"OPERATIONAL
PHILOSOPHY: Drunk driving roadblocks
checkpoints cannot be of less public benefit than the behavior they are trying
to displace, nor can they create more of a traffic hazard by their operation
than the results of the driving behavior they are trying to modify.
"OPERATIONAL
PLANNING: Each individual roadblock must be planned in advance of
actual implementation. All specifics as
to the conduct of the roadblock must be pre‑planned and not randomly or
arbitrarily implemented at the site.
"PERSONNEL: Only uniformed officers who have been trained
in roadblock tactics should participate.
A trained supervisor must be present.
"ROADBLOCK
PLANS: Roadblock plans must be developed
by department supervisors and disseminated to participants prior to
implementation. Plans must include date,
location, time, duration, and set patterns of cars to be stopped.
"BASIC
CONSIDERATIONS:
‑‑Selection
of vehicles to be stopped must not be arbitrary.
‑‑Safety
must be assured.
‑‑Motorist
inconvenience must be minimized.
‑‑Action
undertaken must be according to a written plan and supervised.
‑‑Advanced
public notice must be given to reduce surprise, fear, and inconvenience for the
motorist.
"SITE
SELECTION: Problem areas‑‑where
accidents or prior arrests for drunken driving have occurred. Specific areas to be selected by respective
administrators and supervisors.
A.
Individual site selection should be based on selective enforcement identifiers
as to time, place and cause of prior serious injury accidents.
B.
Site should allow officers to pull vehicles out of the traffic stream without
causing a significant intrusion to them and/or creating a safety hazard because
of a traffic back‑up. It is
suggested that areas adjacent to rest areas or parking lots be utilized.
C.
Selected sites should allow for visibility of on‑coming motorists, safety
for stopped vehicles, as well as safety for the officers.
[396 Mass. 93] D. Alternative sites should be pre‑selected should traffic
congestion occur at primary site.
"SAFETY
CONSIDERATIONS: Advanced warning for on‑coming
vehicles
A. Signs (recommended)
B.
Sufficient roadflares to be placed on the shoulder of road.
C.
Police vehicles with flashing lights.
D.
Traffic is to be stopped by a uniformed officer, giving a visual stop signal.
E.
Where possible vehicles should be pulled off the road (rest area, parking lot,
etc.)
F.
Sufficient quantity and visibility of uniformed police and cruisers to assure
speedy compliance, minimize inconvenience and reduce public fear and
apprehension.
G.
Each vehicle at the checkpoint is to be stopped for a period of one minute or
less with the operator and all occupants remaining seated in the vehicle.
H.
No physical barriers are to be used.
"ADVANCED
NOTICE: Announcement of the date of the
intended checkpoint, without announcing its precise location, will be made by
the checkpoint supervisors to the news media at least three (3) days prior to
the implementation of the checkpoint.
Press releases should be structured to educate the public as to the
purpose of the checkpoint, to encourage public support and to solicit
cooperation. The tone of the article
should provide some measure of deterrence for drunk driving.
"SOBRIETY
CHECKS: Inconvenience must be minimized.
A. A very brief and courteous statement
should be made by officers manning the checkpoints: Example‑‑"Good evening, this
is a routine sobriety checkpoint. Sorry
for the inconvenience, good night."
B. Only upon observing an articulable
sign of possible intoxication will further inquiry be warranted. In other words, the officer should develop at
least an indication that the driver has been consuming alcohol before asking
for a driver's license or engaging in conversation regarding the consumption of alcohol.
C. A supervisor must be present at all
Sobriety Checkpoints and it is he/she who will decide on the setup at the
location to ensure safety for all. The
Supervisor will also decide:
1. The number of vehicles to be stopped
(a) all vehicles
(b) set number, i.e., (1) one of every
ten passing cars
[396
Mass. 94] "NOTE‑‑Random,
discretionary stops, unsupported by probable cause, reasonable suspicion, or
even some less stringent standard, are unreasonable and therefore, impermissible. Requests for license and registration should
not be undertaken unless probable cause is determined.
2.
Duration of checkpoint, not to exceed two hours unless Troop Commander requires
a checkpoint exceeding that time
"ARREST
PROCEDURES:
A. If after brief stop, the officer develops
specific and articulable facts which lead the officer to believe the motorist
may be intoxicated:
1. Vehicle operator requested to drive onto the
shoulder of road
2. Driver requested to produce license and registration
3. Driver may be requested to perform certain
motor coordination tests
B. If arrested, suspect should be taken
to nearest State Police Barracks for processing by arresting officer.
"JUDICIAL SUPPORT: District Attorney's [sic ] should be contacted prior to the implementation of the
roadblocks for their input into the types of evidential information that will
be needed to prosecute cases.
"RECORD KEEPING: Officer‑in‑charge of roadblock
operation will insure that adequate records will be kept of each
operation. Information to be collected
shall include but not be limited to the following:
A.
Number of vehicles passing through roadblocks, i.e., total vehicles
stopped or not
B. Number of vehicles checked, i.e. total
vehicles checked
C. Number of vehicles detained for
further check i.e. license and registration etc.
D. All other data required on A.R.C.P.
forms to be used for roadblock operation only (separate form for two hour
period).
E. All unusual occurrences shall be noted
under remarks
"NOTE‑‑Accurate records
are necessary on all parts of roadblock operations in anticipation of eventual
court cases."
ABRAMS, Justice (concurring).
I concur in the court's decision. Other States have concluded that roadblocks
subject to guidelines that restrict police discretion are constitutionally
permissible. See, e.g., United States v. Prichard, 645 F.2d 854
(10th Cir.), cert. denied, 454 U.S. 832, 102 S.Ct. 130, 70 L.Ed.2d 110 (1981);
State v. Superior Court, 143 Ariz. 45, 691 P.2d 1073 (1984);
State v. Garcia, 481 N.E.2d 148 (Ind.Ct.App.1985);
State v. Deskins, 234 Kan. [396
Mass. 95] 529, 673 P.2d 1174 (1983);
Kinslow v. Commonwealth, 660 S.W.2d 677 (Ky.Ct.App.1983), cert.
denied, 465 U.S. 1105, 104 S.Ct. 1606, 80 L.Ed.2d 136 (1984); State v. Cloukey, 486 A.2d 143 (Me.1985);
Little v. State, 300 Md. 485, 479 A.2d 903 (1984);
People v. Scott, 63 N.Y.2d 518, 483 N.Y.S.2d 649, 473 N.E.2d 1
(1984);
State v. Shankle, 58 Or.App. 134, 647 P.2d 959 (1982);
State v. Martin, 496 A.2d 442 (Vt.1985); State v. Coccomo, 177
N.J.Super. 575, 427 A.2d 131 (1980). See
also People v. Meitz, 95 Ill.App.3d
1033, 51 Ill.Dec. 561, 420 N.E.2d 1119 (1981).
See generally Annot., 37 A.L.R.4th 10 (1985).
Although
"there is no 'typical' sobriety checkpoint roadblock," Rogers, The
Drunk‑Driving Roadblock: Random
Seizure or Minimal Intrusion?, 21 Crim.L.Bull. 197, 204 (1985), it is possible
to distill from the case law and legal commentators the principles necessary to
pass constitutional muster. There must
exist "(1) a checkpoint or roadblock location selected for its safety and visibility to oncoming motorists;
(FN1) (2) adequate advance warning
signs, illuminated at night, timely informing approaching motorists of the
nature of the impending intrusion; (3)
uniformed officers and official vehicles in sufficient quantity and visibility
to 'show ... the police power of the community'; and (4) a predetermination by policy‑making
administrative officers of the roadblock location, time, and procedures to be
employed, pursuant to carefully formulated standards and neutral
criteria." State v. Hilleshiem, 291 N.W.2d 314, 318
(Iowa 1980). See State v. Deskins, supra 234 Kan. at 541, 673 P.2d 1174;
State v. Coccomo, supra 177 N.J.Super. at 581, 427 A.2d 131. See generally Rogers, [396 Mass. 96] supra at 204; Comment, Filling in the Blanks after
Prouse: A New Standard for the Drinking‑Driving
Roadblock, 20 Land & Water L.Rev. 241, 254‑257 (1985); Note, Curbing the Drunk Driver Under the
Fourth Amendment: The Constitutionality
of Roadblock Seizures, 71 Geo.L.J. 1457, 1482‑1484 (1983). In these cases there is no suggestion that
the guidelines do not meet these standards or that the police did not follow
the promulgated guidelines. (FN2)
As I read Delaware v. Prouse, 440 U.S. 648, 653‑654,
99 S.Ct. 1391, 1395‑1396, 59 L.Ed.2d 660 (1979), the linchpin for
constitutional roadblocks is that police officers not possess
"unconstrained discretion."
The guidelines here provided for record keeping; for tailoring the application of roadblocks
to places of previous injuries; for use
of "areas adjacent to rest area or parking lots"; and for advance public announcement of the intended
checkpoint. The guidelines approached
more closely than may be strictly necessary those needed for the minimization
of intrusion and the maximization of safety.
(FN3) See, e.g., Comment, Filling
in the Blanks after Prouse: A New
Standard for the Drinking‑Driving Roadblock, 20 Land & Water L.Rev.
241 (1985).
The thrust
of the defendants' argument is that "[b]y eliminating the requirement that
an officer act only on reasonable and articulable facts or probable cause,
which is subject to judicial review, the standardless intrusion by an officer
eludes scrutiny and renders the Fourth Amendment (as well as art. 14 of the
Declaration of Rights) a virtual nullity." The Supreme Court, however, has already
indicated that, in the appropriate circumstances, roadblock stops do not
violate motorists' Federal constitutional rights. See
Delaware v. Prouse, supra at 663, 99 S.Ct. at 1401.
[396 Mass. 97] I also reject the defendants' argument that a failure to follow
G.L. c. 30A (1984 ed.) in issuing the guidelines would make constitutionally
infirm any seizure made at any roadblock conducted pursuant to the
guidelines. The State's violation of its
own statute does not necessarily amount to a Federal or State constitutional
violation. "[E]ven the outright violation of state
law by local officers 'is a matter primarily of concern to the state and does
not implicate the Constitution'‑‑absent 'fundamental procedural
irregularity, racial animus or the like.' " Roy v. Augusta, 712 F.2d
1517, 1523 (1st Cir.1983), quoting
Creative Env'ts, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir.), cert. denied,
459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982). See, e.g.,
Haines v. Kerner, 492 F.2d 937, 941 n. 8 (7th Cir.1974) (not every
violation of State law or agency regulation constitutes a denial of a
constitutionally protected liberty or property interest); United States v. Leahey,
434 F.2d 7, 11 (1st Cir.1970) (agencies do not always violate due process when
they fail to adhere to their procedures).
Moreover, the defendants made no showing that the Commonwealth's failure
to promulgate the guidelines under c. 30A procedures offends due process by
denying citizens a constitutionally protected liberty or property right.
Last,
although we said that roadblocks coupled with advance publicity "may
achieve a degree of law enforcement and highway safety that is not reasonably
attainable by less intrusive means,"
Commonwealth v. McGeoghegan, 389 Mass. 137, 143‑144, 449 N.E.2d 349
(1983), we have never considered whether the Commonwealth must show that roadblocks are the least intrusive means or must
meet some lower standard in order to pass constitutional muster. That issue has not been briefed or argued by
the defendants. Generally, issues not
briefed or argued to the court are deemed waived. Commonwealth v. Louraine,
390 Mass. 28, 38 n. 13, 453 N.E.2d 437 (1983).
Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). I think it would be unfair to the
Commonwealth to reach this issue, as the dissenting Justices urge us to do,
because the defendants have not briefed or argued the issue and the Commonwealth
was compelled to stipulate to facts in order to facilitate this appeal. This issue [396 Mass. 98] should
be decided on a record fully developed by the adversary process.
The
guidelines here at issue are an attempt to reduce the threat of drivers who
drive while under the influence of intoxicating liquor while remaining
sensitive to the individual motorist's expectation of privacy. "No one can deny the State's vital
interest in promoting public safety upon our roads by detecting and prosecuting
drunk drivers. These drivers are a
threat to other motorists, to pedestrians and to themselves."
State v. Coccomo, supra 177 N.J.Super. at 582, 427 A.2d 131. On the issues raised by the defendants,
there was no error in denying the motions to suppress.
LYNCH,
Justice (dissenting with whom LIACOS, J., joins).
The court
properly acknowledges that the stopping of each defendant's motor vehicle was a
seizure under the Fourth and Fourteenth Amendments to the United States
Constitution. Ante at 1105. See Delaware
v. Prouse, 440 U.S. 648, 653‑654, 99 S.Ct. 1391, 1395‑1396, 59
L.Ed.2d 660 (1979). The court also
properly states that the Commonwealth bears the burden of proof on the issue of
lawfulness of the seizure. Ante at 1107. See
Commonwealth v. McGeoghegan, 389 Mass. 137, 144, 449 N.E.2d 349
(1983). The court has failed, however,
to appreciate the full implications of this burden. The Sunderland roadblock resulted in an
intrusion into the right of several hundred people to be free from arbitrary interference
by law enforcement officials. If such an
intrusion can ever be said to be reasonable in a constitutional sense, it can
only be after the Commonwealth has met its burden of showing that "[s]uch
a procedure [achieves] a degree of law enforcement and highway safety that is
not reasonably attainable by less intrusive means." Commonwealth v. McGeoghegan,
supra at 143‑144, 449 N.E.2d 349.
The court apparently assumes that roadblocks are a reasonable mechanism
for advancing the public interest in curbing drunk driving, and examines merely
whether the guidelines at issue and their application in this case are
reasonable. Since I am unable to find
any basis in the record for concluding that roadblocks are [396 Mass. 99] more effective than less intrusive
mechanisms for curbing drunk driving, (FN1) I respectfully dissent.
"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."
Commonwealth v. McGeoghegan, supra at 139, 449 N.E.2d 349. That Court has repeatedly emphasized that a
factor to be weighed in determining whether a roadblock is constitutional is
"the absence of practical alternatives" for protecting the public
interest. See, e.g., Delaware v. Prouse, supra 440 U.S. at 655, 99 S.Ct. at 1397,
quoting United States v. Brignoni‑Ponce,
422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975). Even when a vital State interest is
implicated, "[t]he question remains ... whether in the service of these
important ends the [roadblock] is a sufficiently productive mechanism to
justify the intrusion upon Fourth Amendment interests which such stops
entail." Delaware v. Prouse, supra 440 U.S. at
659, 99 S.Ct. at 1399. There, the Court
concluded, "Given the alternative mechanisms available, both those in use
and those that might be adopted, we are unconvinced that the incremental
contribution to highway safety of the random spot check justifies the practice
under the Fourth Amendment." Id.
The Court stated, furthermore, that "[t]he foremost method of
enforcing traffic and vehicle safety regulations ... is acting upon observed
violations." Id.
Nor has
this court previously decided that the Commonwealth had met its burden to show
the reasonableness of a roadblock conducted under the circumstances of the one
in question here. Nevertheless, the
court relieves the Commonwealth of its burden to show that the roadblock was
more effective in advancing the public interest in curbing drunk driving than
alternative, less intrusive mechanisms.
Other courts have recognized that the State must make this showing, [396 Mass. 100] and have struck down roadblocks partly on this basis. See, e.g.,
State v. Koppel, 499 A.2d 977 (N.H., 1985); (FN2) Jones v. State, 459 So.2d
1068, 1077 (Fla.Dist.Ct.App.1984); State v. McLaughlin, 471 N.E.2d 1125,
1141 (Ind.Ct.App.1984); People v. Bartley, 125 Ill.App.3d 575, 80
Ill.Dec. 894, 466 N.E.2d 346 (1984); State ex rel. Ekstrom v. Justice Court,
136 Ariz. 1, 5, 663 P.2d 992 (1983). Cf. State v. Superior Court, 143 Ariz. 45,
48‑49, 691 P.2d 1073 (1984) (upholding roadblock where State official
offered evidence that there were no less intrusive alternatives). See also
State v. Deskins, 234 Kan. 529, 544‑545, 673 P.2d 1174 (1983)
(Prager, J., dissenting) ("The most pressing question before us is the
degree to which this roadblock checkpoint actually promoted the public interest
in deterring drunk drivers.... In my
judgment, the trial court correctly concluded that the State failed in its
burden of proof in establishing that the roadblock checkpoint promoted the
public interest in light of available less drastic alternative measures which
could have been used by the officers to combat the problem, without setting up
a roadblock and stopping between 2,000 and 3,000 motorists.")
The record
in this case clearly raises the question whether the Sunderland roadblock of
July 2‑3, 1983, was as effective in curbing drunk driving as traditional,
less intrusive alternatives. During
approximately two and one half hours, State police officers stopped 503 vehicles.
Although the roadblock claimed the services of thirteen officers and
caused an intrusion into the Fourth Amendment rights of several hundred law‑abiding
citizens, it resulted in only eight arrests.
There is no showing in the record that the roadblock was more effective
than less intrusive mechanisms would have been.
(FN3)
[396 Mass. 101] The Commonwealth has argued that, even though fewer than two per
cent of the drivers stopped at the Sunderland roadblock were ultimately
arrested, the roadblock program nevertheless serves as a deterrent and has
contributed to a decline in highway fatalities.
As an appendix to its brief, the Commonwealth has presented a graph
showing a decline in highway fatalities during the period July 1 through Labor
Day weekend for the years 1981‑1983.
Absent a clear showing of a causal relationship, the Commonwealth cannot
claim this decline resulted solely from the use of roadblocks rather than from
increased public and media attention to the problem, as well as more emphasis
on the more traditional, less intrusive means of enforcement. The decline in highway fatalities in 1982 and
1983 could also reflect a change in public perception of drunk driving due to
the imposition of stricter criminal penalties for driving under the
influence. (FN4) The Commonwealth has failed to demonstrate
that the decline in highway fatalities is attributable to institution of a
roadblock program, and has also not shown that the same or greater declines
could not have been achieved by use of less intrusive mechanisms. (FN5)
The
court's holding that the seizures at the Sunderland roadblock 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 [396 Mass. 102] 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
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. I would answer "no" to
question 2 and decline to answer questions 1 and 3.
(FN1.) Edward F. Massey and Howard E.
Anderson, Jr.
(FN2.)
It is difficult to know why reference is made in all three questions to G.L. c.
41, § 98, because this statute is addressed to the powers of police officers in
cities and towns. It does not reach the
State Police who are governed, in the main, by G.L. c. 22.
(FN3.)
The guidelines were developed in consultation with Secretary Barry, the
Governor's Legal Counsel, the Drunk Driving Committee of the Governor's Anti‑Crime
Council, the Criminal Justice Training Council, the chief of police of Revere,
and the National Highway Traffic Safety Administration.
(FN4.)
We acknowledge the brief submitted by the Secretary of Public Safety, amicus
curiae, with respect to this issue.
(FN5.)
General Laws c. 30A, § 1(5), provides the following definition of the term
"regulation": "(5)
'Regulation' includes the whole or any part of every rule, regulation, standard
or other requirement of general application and future effect, including the amendment
or repeal thereof, adopted by an agency to implement or interpret the law
enforced or administered by it, but does not include (a) advisory rulings
issued under section eight; or (b)
regulations concerning only the internal management or discipline of the
adopting agency or any other agency, and not substantially affecting the rights
of or the procedures available to the public or that portion of the public
affected by the agency's activities; or
(d) regulations relating to the use of the public works, including streets and
highways, when the substance of such regulations is indicated to the public by
means of signs or signals; or (e)
decisions issued in adjudicatory proceedings."
(FN6.)
We have intimated that "there is such a thing as an advisory or
informational pronouncement by an administrative agency that may be issued
lawfully in relation to a regulation (or a statute) without going through the
procedures required for promulgation of a regulation." Massachusetts Gen. Hosp. v.
Rate Setting Comm'n, 371 Mass. 705, 706‑707, 359 N.E.2d 41
(1977). It also may be true that
"it is no use trying to frame an airtight definition of such
pronouncements which would serve to distinguish them from regulations...." Id.
at 707, 359 N.E.2d 41.
(FN1.)
Decisions involving fixed or permanent immigration checkpoints lend further
guidance in determining the reasonableness of a roadblock. See, e.g.,
United States v. Martinez‑Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49
L.Ed.2d 1116 (1976). Some courts have
extrapolated from the Border Patrol cases the requirement that a checkpoint be
"permanent." See, e.g., State v. Olgaard, 248 N.W.2d 392, 394
(S.D.1976).
In Delaware v. Prouse, 440 U.S. 648, 99
S.Ct. 1391, 59 L.Ed.2d 660 (1979), however, the Court did not refer to
"permanent" checkpoints.
Rather, it allowed "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.
at 663, 99 S.Ct. at 1401.
The
defendants, however, have not raised the issue of "permanence" and
the court need not reach it. I only
note, however, that the roadblock here was not a roving patrol; it was in a fixed location not subject to
police officers' discretion.
(FN2.) In their brief, the defendants suggest
that, even with the guidelines, an individual driver who is detained may be
subject to arbitrary police conduct during the detention. Nothing the court holds prevents an
individual driver from raising a claim of violation of constitutional rights
during a particular seizure and detention.
The burden of justifying police conduct during the challenged
warrantless seizure and detention is on the Commonwealth. See
Commonwealth v. Antobenedetto, 366 Mass. 51, 315 N.E.2d 530 (1974).
(FN3.) On this issue, the defendants do not
make any separate argument that the State Constitution's standard differs from
the Federal standard.
(FN1.) At least one objective study supports
the contrary proposition and demonstrates that a roadblock program was an
ineffective technique by which to deter and detect drunk driving. See
Little v. State, 300 Md. 485, 516‑517, 479 A.2d 903 (1984) (Davidson,
J., dissenting). It is not enough to
say, as does the court, that this issue is not raised by the reported questions
because without such a showing the roadblock could not pass constitutional
muster.
(FN2.)
The court's holding, however, rested solely on an interpretation of the New
Hampshire Constitution. Although the
language of Part I, article 19, the relevant section of the New Hampshire
Constitution, is "similar to that in the Federal Constitution,"
article 19 was construed to provide greater protection for individual rights
than the Fourth Amendment. State v. Koppel, at 979 (N.H. 1985).
(FN3.) The police could have patrolled the
roadways and stopped any motor vehicle where the driver's conduct raised a
reasonable suspicion of intoxication.
See Terry v. Ohio, 392 U.S. 1,
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Also,
the police could have conducted a surveillance of local bars and restaurants.
(FN4.) In 1982, the Legislature amended G.L.
c. 90, § 24(1)(a)(1), to impose stricter penalties for operating a motor
vehicle while under the influence of intoxicating liquor. The minimum fine was increased from $35 to
$100. Furthermore, first offenders may
now be imprisoned for up to two years.
See G.L. c. 90, § 24(1)(a)(1) (1984 ed.).
(FN5.) Although I do not reach the question, I
have some doubts concerning the court's conclusion that the promulgation of the
roadblock guidelines need not have been in compliance with the requirements for
adopting regulations under G.L. c. 30A, §§ 2 & 3 (1984 ed.).