Commonwealth v. Aivano
Commonwealth v. Aivano
Opinion of the Court
The Commonwealth appeals from two orders suppressing evidence obtained from the defendants incident to roadside stops conducted at a sobriety checkpoint during the
Background. On August 19, 2010, the State police office of media relations issued the following press release:
“Colonel Marian J. McGovern, Superintendent of the Massachusetts State Police, announced that a ‘Sobriety Checkpoint’ will be implemented by the Massachusetts State Police on a Secondary State Highway. The purpose is to further educate the motoring public and strengthen the public’s awareness to the need of detecting and removing those motorists who operate under the influence of alcohol and/or drugs from our roadways. It will be operated during varied hours, the selection of vehicles will not be arbitrary, safety will be assured, and any inconveniences to motorists will be minimized with advance notice to reduce fear and anxiety.
“A ‘SOBRIETY CHECKPOINT’ WILL BE HELD IN THE COUNTY LISTED BELOW:
“COUNTY: DATE:
“Hampden Saturday August 28, 2010 into
Sunday August 29, 2010.”2
During the early morning hours of August 29, 2010, each of
Discussion. “It is . . . beyond question that the stop of a vehicle at a fixed roadblock, however brief, constitutes a warrantless seizure of that vehicle and its driver without individualized suspicion under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.” Commonwealth v. Murphy, 454 Mass. 318, 322 (2009). “[F]or sobriety checkpoints to be reasonable under the Fourth Amendment and art. 14, ‘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.’ ” Id. at 323, quoting from McGeoghegan, 389 Mass, at 143. “Adherence to a neutrally devised, preplanned blueprint in order to eliminate arbitrariness and discretion has been [the Supreme Judicial Court’s] principal prerequisite for abandoning the requirement of individualized suspicion in roadblock stops.” Commonwealth v. Anderson, 406 Mass. 343, 349 (1989). Indeed, the court has insisted on strict adherence to the provisions of the predetermined plan “in order that the possibility of arbitrariness and discretion of the officers in the field be eliminated.” Id. at 350 (requiring suppression of evidence obtained at sobriety checkpoint fifteen to thirty minutes after predetermined plan called for checkpoint to terminate). While there is no constitutional necessity that advance notice of an intended roadblock be given, “advance publication of the date of an intended roadblock, even without
In the present case, the defendants acknowledge that the roadblock was conducted pursuant to a predetermined plan and, other than the discrepancy between the legal character of West Columbus Avenue as a municipal street and the generic description of the roadblock location in the press release as a secondary State highway, do not contend that the location of the roadblock, or the manner in which it was conducted, failed in any manner to adhere to that plan.
We are unpersuaded that the discrepancy cited by the defendants between the information contained in the press release announcing the roadblock and the nature of the street on which it was conducted warrants suppression of the evidence. As we have observed, supra, the linchpin for determining constitutionality of a roadblock is the use of a predetermined plan, developed by supervisory law enforcement personnel, to eliminate the exercise of discretion by law enforcement personnel in the field. The defendants do not contend that the roadblock was not conducted in the location established by the plan (or that the conduct of the roadblock otherwise deviated from the plan). The lone discrepancy cited by the defendants was between the press release and both the plan and the roadblock. Nothing about the discrepancy in the press release introduces an opportunity for discretionary departure by law enforcement in the field from the dictates of the plan. Moreover, as observed in McGeoghegan, supra, the prior announcement of a planned roadblock — in other words, the press release — is not a matter of constitutional necessity; it is simply a prudential device to reduce fear and surprise in the motoring public.
The defendants’ suggestions that constitutional requirements are violated when a press release contains inaccurate information concerning the location of a planned roadblock ring hollow. The Supreme Judicial Court has made it clear that the actual
In sum, though strict adherence to a predetermined plan for conduct of a roadside sobriety checkpoint is constitutionally required, a minor discrepancy in details contained in a press release announcing an intention to conduct such a roadblock will not render the roadblock constitutionally infirm, at least in circumstances where the discrepancy is not shown to be purposely designed to mislead the public and where it involves information concerning the roadblock about which the public is not constitutionally entitled to be informed in advance.
The orders allowing the defendants’ motions to suppress are reversed, and new orders shall enter denying the motions.
So ordered.
The specific county and date information appeared in bold type.
The defendants’ motions sought both to suppress the evidence so obtained, and to dismiss the charges; the motions were endorsed, “Allowed.”
The plan itself is not in the record. In the memoranda submitted in support of their respective motions to suppress and dismiss, both defendants averred similarly that “the State Police established guidelines for this roadblock entitled, ‘Operational Plans and Directives, West Columbus Ave., Springfield, MA. August 28 and 29, 2010.’ ”
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