Commonwealth v. Anderson
Commonwealth v. Anderson
Opinion of the Court
The Commonwealth appeals under Mass. R. Crim. P. 15 (a) (2), 378 Mass. 882 (1979), from the order of
On the night of June 12 and June 13, 1987, the State police planned and executed a roadblock, for detecting drunk drivers along a stretch of Route 18 in Abington. The defendant, Sandra M. Anderson, was arrested at the Abington roadblock at 2:15 a.m. — fifteen minutes after the termination of the roadblock authorized by State police troop commander Charles F. Henderson’s plan. The various State police guidelines
The motion judge concluded that by extending the roadblock hours the officer at the scene varied from the specific
1. Consistency of the rulings. The Commonwealth contends that the judge’s findings did not warrant his conclusion that the roadblock guidelines were not followed. We do not agree. The guidelines provided that a roadblock not exceed two hours in duration unless the troop commander orders otherwise. The guidelines also provided that the procedure to be followed must be in writing and disseminated in advance. We conclude, therefore, that if the troop commander wishes to extend the duration of the roadblock, the guidelines require that he do so in writing and in advance. Even if we were to interpret the guidelines as permitting oral changes in duration on orders of the troop commander, our decision would not change. There was no evidence that the troop commander ordered the hours extended.
It is clear, therefore, that the judge’s ruling that the police failed to comply with the established procedure is unassailable. We turn now to the effect of this failure on the constitutionality of the defendant’s seizure.
2. Constitutional standards. It is beyond dispute, as the Commonwealth acknowledges, that the stopping of Anderson’s automobile at a roadblock for a driver sobriety check is a “seizure,” under both the Fourth and Fourteenth "Amendments to the United States Constitution, and art. 14 of the Massachusetts Declaration of Rights. Commonwealth v.
Decisions of this court and of the Supreme Court establish that, in deciding whether a seizure is “reasonable,” we balance the public interest against the individual’s right to personal security free from arbitrary interference by law enforcement officials. Commonwealth v. Trumble, 396 Mass. 81, 86 (1985). United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). That balance in most cases takes its meaning from the warrant clause. “It is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ ” United States v. Ross, 456 U.S. 798, 825 (1982), quoting Katz v. United States, 389 U.S. 347, 351 (1967). Even in the “exceptional” cases where a neutral and detached magistrate has not made a finding of probable cause, Delaware v. Prouse, supra at 654 n.ll, search or seizure by the police must usually be based on the existence of facts which would allow for such a determination in order to be “reasonable.” California v. Carney, 471 U.S. 386, 394 (1985) (while warrant was not necessary to search motor home under the “automobile exception,” to meet reasonableness standard, “the search otherwise [must be such] as the magistrate could authorize”). Even in cases where “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat” has been held to make the warrant exception and probable cause standard too exacting for practical purposes, the police have been required to “point to specific and articulable facts” in order to render a search or seizure “reasonable” by the Fourth Amendment standards. Terry v. Ohio, 392 U.S. 1, 20-21 (1968).
If “[t]his demand for specificity in the information upon which police action is predicated is the central teaching of . . . Fourth Amendment jurisprudence,” id. at 21 n.18, then
In order to assure that a roadblock seizure of a citizen without even individualized suspicion is “reasonable” under the Fourth Amendment and art. 14 of the Declaration of Rights, the court has demanded that the roadblock meet standard, neutral guidelines, and be conducted pursuant to a plan devised in advance by law enforcement supervisory personnel. Commonwealth v. McGeoghegan, supra at 143-144. Commonwealth v. Amaral, 398 Mass. 98, 99-100 (1986).
Commonwealth v. Trumble, supra, involved the very same Department of Public Safety and State police regulatory system under which the Abington roadblock of June 12 and
Once the Department of Public Safety and the State police have adopted such standard, written guidelines for the conduct of roadblocks, which have been accepted as a sufficient substitute for the usual Fourth Amendment “reasonableness” demands, it follows that the Commonwealth must carefully comply with them. In order that the privacy interests of the motoring public under the Fourth Amendment and art. 14 be given fair weight in the unique balance that has been struck in favor of roadblock stops without individualized suspicion, it is imperative that the Commonwealth follow its own rules for meeting what the court has recognized as a sui generis interpretation of the reasonableness requirement. We note
The Commonwealth argues here that our constitutional standard for a “reasonable” roadblock seizure is one of “substantial compliance,”
Adherence to a neutrally devised, preplanned blueprint in order to eliminate arbitrariness and discretion has been this court’s principal prerequisite for abandoning the requirement of individualized suspicion in roadblock stops. Commonwealth v. Shields, supra at 165. In Commonwealth v. Amaral, supra at 100, we noted with approval the position of other courts that control over the discretion of officers in the field is the key constitutional requirement. People v. Bartley, 109 Ill. 2d 273, 289 (1985), cert, denied sub nom. Bartley v. Illinois, 475 U.S. 1068 (1986). In Commonwealth v. Trumble, supra at 90, it was stressed that the officers at the scene were instructed that no deviation from the procedures set forth in the guidelines would be permitted. In Common
This court has also specifically pointed to the importance of the requirement that the “roadblock be planned in advance by supervisory personnel [and such] plans must include ‘date, location, time, duration, and set patterns of cars to be stopped’ ” (emphasis added). Commonwealth v. Trumble, supra at 89. As we have noted, the department’s own procedure requires that the plans be in writing and disseminated prior to implementation. See section 5 of the procedure. We conclude, therefore, that the Commonwealth must adhere to the requirements of its own guidelines for establishing the duration of a roadblock in order that the possibility of arbitrariness and discretion of the officers in the field be eliminated.
Finally, we are not convinced it is accurate to describe the seizure of this defendant fifteen minutes after a roadblock was supposed to have ended as having “substantially complied” with the Commonwealth’s roadblock guidelines. The very fact that the Commonwealth can assume, for argument’s sake, that the extension of the roadblock was unauthorized, and then dismiss as insubstantial this deviation from its own guidelines underscores further the need for a standard more meaningful than “substantial compliance” to protect constitutional rights.
The Commonwealth argues that, even if the continuation of the Abington roadblock past 2 a.m. had been unautho
Since the Commonwealth’s guidelines regulating roadblocks have been held to supply the “reasonableness” in these seizures that lack the usual probable cause or individualized suspicion requirements which ordinarily safeguard citizens from arbitrary government intrusion, we believe the fairest course is to require the Commonwealth to follow its own rules.
The judge’s allowance of the defendant’s motion to suppress is affirmed.
So ordered.
The Commonwealth’s “guidelines” governing drunk-driving roadblocks consist of the Department of Public Safety’s Drunk Driving Roadblock Enforcement Procedure and Policy; the State police troop commander’s written plan for each particular roadblock, and the written duty assignment sheets delegating specific tasks to each officer participating in the roadblock. We refer to them collectively as guidelines.
With respect to the other main aspects of the roadblock’s execution — lighting, notice to the public, which cars and how many were stopped prior to 2 a.m., care for the safety of the public and manner of addressing drivers at each stop — the judge found this standard was met.
Section 10(c)(2) of the procedure states: “Duration of the roadblock will not exceed two hours unless the troop commander orders otherwise.”
The only evidence offered by the Commonwealth on the issue whether Lieutenant Begin, the officer in charge, was authorized to extend the duration of the roadblock from 2 a.m. to 2:30 a.m. was the oral testimony of the lieutenant himself. Over the course of his testimony the officer gave three different accounts of how the order to continue the Abington roadblock past 2 a.m. came to be given. He testified first, that he had discretion to order roadblocks to continue beyond the end time stated in the written plans, and that he regularly ordered such deviations from plans; second, that the troop commander contacted him by telephone before the start of this roadblock and authorized him to extend the roadblock as circumstances warranted; and finally, that the troop commander himself in that phone call authorized an extension of the roadblock to 2:30 a.m.
In the circumstances of an inventory search, where there is some probable cause or articulable suspicion for the original State law enforcement intrusion upon a citizen’s privacy, the court has required written, standard police policies and procedures for “reasonableness,” and has held a search in violation of those standard policies to abridge at least art. 14. Commonwealth v. Bishop, 402 Mass. 449 (1988).
The written State police duty assignment sheets distributed prior to the execution of a roadblock to the officers who will be participating state that “compliance with the following orders for each post will be strictly observed.” In particular, part of the duties of the officer in charge of the detail is to insure “that strict compliance with written Policy and Procedure, and the Guidelines established by the Commissioner of Public Safety be adhered to.” Initial point officers in charge are required to “insure that strict compliance with written Policy, Procedure and Guidelines is maintained.”
The Commonwealth draws this language from the wording of the certified questions posed to us in Commonwealth v. Trumble, supra at 83, where we were asked whether the roadblock at issue was “executed in substantial compliance with the guidelines promulgated by the Secretary of Public Safety.” As we have already observed, supra, in Trumble there was no departure at all from (and hence, strict compliance with) the guidelines for executing roadblocks.
Since this case was argued, the Appeals Court decided Commonwealth v. Cameron, 27 Mass. App. Ct. 861 (1989). To the extent that the views in Cameron are inconsistent with those expressed here, we decline to follow them.
Concurring Opinion
(concurring). I write separately to reiterate my concern that this court, when faced with a challenge to an automobile roadblock, has allowed itself to be drawn away from the consideration of basic constitutional principles regarding search and seizure law. Commonwealth v. Shields, 402 Mass. 162, 169 (1988) (Liacos, J., dissenting). Rather than assess whether a roadblock seizure is permissible according to the traditional considerations of probable cause or reasonable and articulable suspicion, this court has chosen to engage in a balancing of the public interest involved in a drunk-driving roadblock against an individual’s right to be
I am gratified by the court’s insistence on strict adherence by the law enforcement authorities to a roadblock plan devised in advance of the roadblock. This standard of compliance will provide some minimal protection to an individual’s right to personal security, while the reasonable substantial compliance standard urged by the dissent would increase greatly the risk of unreasonable seizures by individual police officers in the field. Indeed, under the reasonable substantial compliance standard as envisaged by the dissent, police officers at the scene could choose to continue a roadblock indefinitely, regardless of the duration set down in the roadblock plan, so long as the extended roadblock was operated in the same manner as it had been for the period of time authorized by the plan. Such a standard goes too far in subjecting a motorist’s right of personal security to the discretion of the official in the field. Commonwealth v. Shields, supra at 165. Accordingly, I concur.
Dissenting Opinion
(dissenting). I dissent. In reaching its result, the court elevates form to a triumphant height, leaving substance to stare upward in utter disbelief. The substantive issue is not whether the police strictly complied with the guidelines they devised, but whether the deviation from the guidelines was of
The deviation in this case was “de minimis.” It is difficult to understand how the State trooper’s failure to obtain permission from the troop commander to extend the roadblock a half hour somehow violated the defendant’s right to be free from unreasonable searches and seizures. The roadblock was in effect pursuant to a devised plan that was not arbitrary and which assured motorists’ safety and convenience. The fact that the roadblock lasted longer than authorized does not somehow change the nature of the roadblock. In this case, the State police established a roadblock in which they: (1) did not arbitrarily stop cars; (2) observed the public safety at all times; (3) performed in such a manner that the stops were brief, and took only seconds; and (4) ensured that no motorist was inconvenienced during the roadblock. See Commonwealth v. McGeoghegan, 389 Mass. 137, 143 (1983). Further, the State police devised a plan which enabled them to carry out the roadblock in the reasonable manner outlined above. The State police substantially complied with this plan except that the roadblock was in place a half hour longer than the plan authorized. The roadblock in place at 2:15 a.m., when the defendant’s vehicle was stopped, however, was the same roadblock that had been in place at 2 a.m. There is no evidence that the State police treated motorists stopped at 2:15 a.m. any differently than they had treated motorists stopped at 2 a.m. Nevertheless, those intoxicated motorists who drove by the roadblock after 2 a.m. are shielded from prosecution simply by their late arrival. The court’s application of strict compliance in this case is superficial and woodenly technical. Unlike Cinderella’s coach, the roadblock did not turn into a pumpkin at 2 a.m. The nature of the roadblock and the plan under which it was implemented remained the same and the drunk drivers who were driving at 2:15 a.m. were as blameworthy as those who were driving fifteen minutes earlier. They should be held just as responsible.
Reference
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- Commonwealth vs. Sandra M. Anderson
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