428 Mass. 294 | Mass. | 1998
Having denied the defendant’s motion to suppress the results of standard roadside field sobriety tests, a District Court judge, in substance, reported the following questions to the Appeals Court pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979): (1) whether conducting such tests constitutes a search that may be undertaken only where there is probable cause to arrest; and (2) whether a person may be taken to have
I
A State trooper saw the defendant’s automobile traveling above the speed limit with only one headlight illuminated. The automobile stopped at a restaurant. The officer pulled in behind the automobile and approached the defendant, who was the operator and sole occupant. The officer told the operator that he had observed him speeding and requested his license and registration. The officer noticed a strong odor of alcohol and judged that the defendant’s eyes were “red and glassy” and that his speech was slurred. The officer asked whether the defendant had been drinking, and he answered that he had had “a couple of beers.” The officer asked the defendant to step out of the car and perform four standard field sobriety tests: the walk and turn test, the one leg stand test, the alphabet recitation test, and the horizontal gaze nystagmus test. See Commonwealth v. Sands, 424 Mass. 184, 186-187 (1997) (describing horizontal gaze nys-tagmus test). On the basis of the defendant’s performance the officer concluded that the defendant had been operating the automobile while under the influence of alcohol and arrested him. The District Court judge found that the officer did not suspect that the defendant was drunk at the time he had observed him speeding and had not made up his mind to arrest the defendant until after the performance of the tests. He also found that the officer had “addressed the defendant in a conversational tone and made no overt gestures or threats concerning [the defendant’s] decision to take the tests.” The judge found that
Invoking both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the defendant moved to suppress the results of the field sobriety tests. He claimed that the tests constituted a search and seizure that could validly be performed only if there was probable cause to arrest him, and that the defendant cannot be taken to have consented to take these tests unless he had been specifically advised that he could refuse to take them. In a carefully reasoned decision which canvassed the law in this and other jurisdictions, the judge disagreed with both contentions and denied the defendant’s motion. Noting the strong interest in a definitive resolution of these questions and the existence of several trial court decisions reaching a different conclusion, the judge reported the questions of the validity of the search and of the consent to the Appeals Court in accordance with rule 34. We transferred the case here on our own motion.
n
Although the reported questions arise frequently and require answers, we do not accept the premise that led the judge to ask them. Taking the facts as he found them, we conclude that the officer had probable cause to arrest the defendant for the offense of operating a vehicle while under the influence of alcohol. The judge found that, having properly stopped the defendant to request his license and registration, the officer observed that the defendant’s speech was slurred, his eyes red and glassy, and he detected a strong odor of alcohol. Because the defendant was the only person in the automobile, that was enough to give the officer probable cause to arrest. See Commonwealth v. McGrail, 419 Mass. 774, 776 (1995). The judge found that the officer did not think at that time that he did have probable cause but only a reasonable suspicion, and that he exercised his authority to administer the sobriety tests as an adjunct to the power to stop a person briefly on that basis. The officer’s actual belief as to the legal basis for his authority, however, is irrelevant, so long as the circumstances justified the action he took. See Whren v. United States, 517 U.S. 806, 813 (1996), quoting Scott v. United States, 436 U.S. 128, 138 (1978) (“the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does
A
Wé are asked whether a stop under the authority of Terry v. Ohio, 392 U.S. 1 (1968), is sufficient to justify the administration of the roadside sobriety tests. We agree that requiring a person to perform the tests constitutes a search or seizure and therefore is subject to the strictures of the Fourth Amendment and art. 14.
The defendant contends that only probable cause, not reasonable suspicion, justifies such a search and supports this contention by pointing out that the searches generally authorized in conjunction with a Terry-type stop have been justified by the need to assure the safety of the inquiring officer. The sobriety tests, defendant maintains, are not like the standard “pat down search” but rather are a search for evidence, such as is only authorized incident to an arrest.
The dichotomy the defendant constructs is too rigid. As the Supreme Court has many times held “the ‘touchstone of the Fourth Amendment is reasonableness.’ . . . Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances. In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.” Ohio v. Robinette, 519 U.S. 33, 39 (1996), quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991). The reasonableness of a particular search is a function of the degree and kind of the intrusion and the urgency of the occasion. See Commonwealth v. Williams, 422 Mass. 111 (1996); Commonwealth v. Willis, 415 Mass. 814, 819-820 (1993); Commonwealth v. Mantinez, 44 Mass. App. Ct. 513, 516 (1998). We have certainly allowed an officer who detains a person on reasonable suspicion to inquire into and to hold that person briefly while his identity is checked, Commonwealth v. Salerno, 356 Mass. 642, 646-647 (1970), and even to transport a defendant to witnesses for identification purposes, Commonwealth v. Barros, 425 Mass. 572, 585 (1997) (defendants transported short distance and detained for fifteen minutes prior to being identified), although such actions are not taken to assure the officer’s immediate safety. Moreover, there is indeed a significant safety concern at stake here, although it is not the
B
A search conducted with the consent of its subject is free of the strictures of the Fourth Amendment and art. 14. See, e.g., Commonwealth v. Sanna, 424 Mass. 92, 96 (1997), quoting Commonwealth v. Voisine, 414 Mass. 772, 783 (1993), and Commonwealth v. Derosia, 402 Mass. 284, 286, cert, denied, 488 U.S. 980 (1998). The judge asks whether, in obtaining a person’s consent to perform the tests, an officer must advise him that he is free to refuse. On the general question whether a consent requires such a Miranda-like warning in order to count as valid for purposes of the Fourth Amendment, the Supreme Court has spoken with unmistakable clarity, most recently with
There may be circumstances accompanying an officer’s request for consent that lead to the conclusion that the consent was not voluntary. There is nothing, however, in stops or arrests in connection with reasonable suspicion or probable cause to believe that a person is operating while under the influence of intoxicants nor in the request that the person perform these brief and simple tests that takes these cases, as a category, out of the general rule that advice as to a right to refuse is not necessary. Accordingly, we hold that disclosure of such right to refuse as the subject may have is not necessary for a valid consent.
Finally, we must be careful to negate a possible implication of the second question as it is posed. The second question asks whether the officer must advise the subject that he is free to refuse to perform the tests. It is a premise of the defendant’s contention that a subject has a right to refuse to perform the tests. For this contention he relies on our decision in Commonwealth v. McGrail, 419 Mass. 774 (1995). But McGrail, like our decisions in Vanhouton v. Commonwealth, supra, Commonwealth v. Brennan, 386 Mass. 772 (1982), and Opinion of the Justices, 412 Mass. 1201 (1992), simply stands for the quite distinct proposition that a person’s refusal to perform these tests, like his refusals to turn over real evidence, may not, consistent with the privilege against self-incrimination in art. 12 of the Massachusetts Declaration of Rights, be entered in evidence against that person.
If a search is reasonable (and thus within the strictures of the
Of course the reverse implication need not hold: because a person is under an obligation to perform the tests or comply with some other lawful order, does not necessarily imply that he may be forced to comply. Whether and what steps may be taken to compel compliance will depend .on the circumstances. The Supreme Court has held a person may be forced to provide fingernail scrapings or submit to a blood test. See Cupp v. Murphy, 412 U.S. 291 (1973); Schmerber v. California, 384 U.S. 757 (1966). Accord Matter of a Grand Jury Investigation, supra. On the other hand the Supreme Court has held that the degree of intrusion raises independent constitutional concerns, as where the evidence sought is a bullet which can only be removed surgically with the suspect under anesthesia, Winston v. Lee, 470 U.S. 753 (1985), or by pumping out the contents of the stomach, Rochin v. California, 342 U.S. 165 (1952). The very nature of the tests involved here makes the use of force to compel their performance obviously inappropriate.
Consent only becomes an issue if a person requested or
The motion to suppress was properly denied. We answer the reported questions, “No.”
The specific questions reported by the judge were:
“(1) Do standard, roadside field sobriety tests such as those involving walking and turning, lifting a leg for a specified number of seconds, reciting the alphabet, or following an object such as a pen or light with one’s eyes as it passes across one’s field of vision require the police to have probable cause to arrest or to search, or may they be undertaken on the basis of reasonable suspicion as part of an otherwise valid threshold inquiry?
“(2) In order for a defendant to validly consent to perform standard, roadside field sobriety tests, is it necessary [for] the police officer to specifically advise the defendant that he or she has a right to refuse to perform such tests?”
See State v. Superior Court, 149 Ariz. 269, 274 (1986); State v. Lamme, 19 Conn. App. 594, 601 (1989), aff’d, 216 Conn. 172, 176 (1990); State v. Taylor, 648 So. 2d 701, 703 (Fla. 1995); State v. Golden, 171 Ga. App. 27, 31 (1984); State v. Wyatt, 67 Haw. 293, 305 (1984); State v. Pick, 124 Idaho 601, 605 (1993); State v. Eastman, 691 A.2d 179, 181-182 (Me. 1997). But see People v. Carlson, 677 P.2d 310, 318 (Colo. 1984); State v. Nagel, 320 Or. 24, 36 (1994).
In Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995), we did refer to as correct the trial judge’s instruction that a driver is under no legal obligation to submit to field sobriety tests and approvingly cited an Oregon
The United States Supreme Court upheld the validity of an earlier version of this statute. Mackey v. Montrym, 443 U.S. 1 (1979).
Similarly, the United States Supreme Court has held that police were justified in taking a sample of scrapings from under the fingernails of a person who had voluntarily come in for questioning, even where the person actively
The extreme case of ordering a person to perform such tests at gunpoint is also obviously excessive and impermissible, as would be threats of physical force. But neither these distinct constitutional and practical limitations on the means that may be taken to compel an order nor the prohibition under art. 12 against the introduction of refusal evidence as evidence of guilt demonstrates that there is no obligation to comply. As we have noted, refusal by a person under reasonable suspicion of operating while under the influence of intoxicating liquors to submit to a breathalyzer or blood test is a basis for suspension of that person’s driver’s license. See Commonwealth v. Yameen, 401 Mass. 331 (1987). Although the Legislature has made no similar provision for