441 Mass. 122 | Mass. | 2004
The Commonwealth appeals from an order allowing the defendant’s motion to suppress evidence obtained when his vehicle was stopped by a State trooper while traveling past the Cobble Mountain Reservoir. After stopping the defendant, the trooper observed indicia of intoxication and arrested the defendant for operation of a motor vehicle while under the influence of intoxicating liquor. The defendant moved to suppress all evidence obtained as a result of the stop on the ground
1. Facts. The judge found the following facts, amplified by uncontested testimony at the evidentiary hearing. See Commonwealth v. Willis, 415 Mass. 814, 816 n.2 (1993). The Cobble Mountain Reservoir, located in the towns of Blandford and Granville, supplies fresh water for various municipalities, including the city of Springfield. A public way, known as Cobble Mountain Road, runs alongside a portion of the reservoir’s shoreline for an unspecified distance. The road, a narrow “back country” road (just barely wide enough for two vehicles to pass), connects to other public ways at either end. Posted signs advise motorists that they are not permitted to stop alongside the reservoir, and that no trespassing is allowed. The area is rural, and the road carries very little traffic.
Approximately one month after the terrorist attacks of September 11, 2001, Federal authorities issued a written advisory to law enforcement agencies, including the Massachusetts State police, warning that there was a “credible threat” of an impending attack on the United States. No geographic location, specific target, or type of target was identified. In response to that advisory, the State police decided
At around 2 a.m. on October 15, a day or two after these security procedures had been implemented, Trooper Richard Gawron was in his marked cruiser located near the reservoir dam in Blandford. Another trooper was approximately one-quarter mile away, in the area of the pumping station. When Trooper Gawron saw a vehicle approaching, he activated his blue lights, got out of the cruiser, and held up his hand, signaling the driver to stop. The approaching vehicle, a passenger sedan, stopped approximately one hundred feet away. Trooper Gawron signaled for the vehicle to come closer. The vehicle accelerated rapidly and was continuing on by when Trooper Gawron again signaled and yelled at the driver to stop. The vehicle stopped, and Trooper Gawron made inquiry of the driver (the sole occupant of the vehicle), later identified as the defendant, David Carkhuff. During that conversation, the defendant exhibited signs of intoxication, and Trooper Gawron administered field sobriety tests. When the defendant failed those tests, he was arrested and subsequently charged with operating while under the influence of intoxicating liquor. Prior to stopping the defendant, Trooper Gawron had not observed anything suspicious about the defendant or his vehicle.
2. Discussion. The Commonwealth has conceded, as it must, that the stop of the defendant’s vehicle constituted a “seizure,” see Commonwealth v. Rodriguez, 430 Mass. 577, 579 (2000),
The Commonwealth’s brief also analogizes the stop in the present case to the security checks that are now routinely performed at such places as airports, court houses, and military installations. See Commonwealth v. Harris, 383 Mass. 655 (1981); United States v. Edwards, 498 F.2d 496 (2d Cir. 1974); United States v. Davis, 482 F.2d 893 (9th Cir. 1973); United States v. Miles, 480 F.2d 1217 (9th Cir. 1973). Based on justifiable concern about the vulnerability of such facilities, the search and seizure protocols at those facilities are designed to assure that persons entering do not have the means to destroy those facilities or to disrupt their operation. Here, the articulated concern was that terrorists would attempt to contaminate the drinking water, cut off the water supply, or start a flood by destroying the dam. In order to protect that critical resource, the procedures implemented by the State police were designed to intercept all persons coming by the reservoir, ascertain their reason for being there, and, if their vehicles were of a kind that could carry a large quantity of some form of toxin or contami
Such screening searches, referred to in some cases as “administrative searches,”
An administrative search must also be “reasonable” in the sense that it “must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.” United States v. Davis, supra at 910. See Commonwealth v. Harris, supra, quoting McMorris v. Alioto, supra (administrative search “must be limited and no more intrusive than necessary to protect against the danger to be avoided”).
In upholding administrative searches at airports and court houses, courts have identified various features that operate to minimize the intrusiveness of those screening procedures. One such feature is prior notice of the search, usually achieved by conspicuous posting of signs warning persons that they will be subject to search if they proceed past a certain point, and reinforced by the obvious presence of a metal detector and related equipment and personnel. Prior notice minimizes intrusiveness in various ways. First and foremost, it allows the traveler (or court house visitor) to avoid the search entirely by electing not to board the aircraft (or enter the court house). See United States v. Davis, supra; 4 W.R. LaFave, supra,
Here, nothing was done to warn motorists traveling along Cobble Mountain Road that they would be subject to any stop and search. There were signs advising them that trespassing was not allowed, and that they should not stop along that stretch of road, but nothing advised them that they would be stopped by pohce. Nor was there any readily identifiable checkpoint or station that would, in at least a general way, convey the sense that ah vehicles were being stopped. As such, persons who did not wish an encounter with the pohce had no opportunity to turn back and use an alternative route away from the reservoir. And, lacking any prior warning, the sudden activation of blue lights and the order to stop would come as a complete surprise to a law-abiding motorist using Cobble Mountain Road, engendering ah of the apprehension and anxiety that an unexpected stop entails.
The giving of some form of prior notice to motorists would not have compromised the government’s objectives here — as with airport and court house entry searches, the objective of preventing dangerous persons from gaining access is still ac
Thus, in the absence of any prior notice or warning to motorists, the State police failed to minimize the intrusiveness of the stop and search procedures at the reservoir. On that basis alone, the suspicionless stop of vehicles along Cobble Mountain Road fails to meet the standards required of a constitutionally permissible administrative search.
We recognize that this particular stop occurred in the immediate aftermath of the terrorist attacks of September 11, 2001, and that the State police were responding to warnings concerning further threatened attacks. While we accept the fact that ongoing attempts by terrorists to inflict further death and devastation on our population may increase the number and nature of facilities and locations that must be protected by heightened security screenings (see note 5, supra), that does not affect the requirement that suspicionless stops and searches at those facilities and locations must still be conducted in a manner that minimizes the intrusion experienced by the many ordinary, law-abiding persons being screened. The fact that the stop itself is brief, and thus, in the Commonwealth’s view, a relatively minor intrusion, does not suffice. When, as part of an administrative search, the police seek to stop, question, and potentially to search persons as to whom they have no articulable suspicion of wrongdoing, they must take all reasonable steps to reduce the intrusiveness of that encounter.
We therefore affirm the order of suppression.
So ordered.
At the hearing, the trooper who normally patrolled the road during the 11 p.m. to 7 a.m. shift testified that he had never seen more than three vehicles go by during that eight-hour period.
Security was also increased at the Quabbin Reservoir. Shortly before the advisory, an object had fallen or been dropped from an airplane and had landed in the Quabbin Reservoir. According to the trooper who testified at the evidentiary hearing, that object “turned out to be innocuous,” but the incident had alerted law enforcement to “issues regarding water supply and safety.”
The United States Supreme Court has not directly addressed the analysis to he applied to such screening procedures under the Fourth Amendment to the United States Constitution, but has impliedly recognized their validity. See Chandler v. Miller, 520 U.S. 305, 323 (1997) (“where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable’ — for example, searches now routine at airports and at entrances to courts and other official buildings”). Lacking definitive guidance as to Fourth Amendment requirements in this specific context, the requirements we impose today are grounded in art. 14 of the Massachusetts Declaration of Rights.
For this particular defendant, there was only a seizure, not a search. The troopers were stopping all vehicles to make inquiry of the drivers, but the only vehicles being searched were certain types of trucks. This defendant, traveling in a passenger car, was therefore not subject to any search. In that sense, the case presents an “administrative seizure” rather than an “administrative search.” That this defendant was only subjected to the seizure mandated by the security measures, and not to any subsequent search, does not affect the requirements under which the constitutionality of those measures are to be judged.
The defendant contends that the State police did not have an adequate basis on which to conclude that any terrorist threat was directed at Cobble Mountain Reservoir. Administrative searches, however, are not justified by reference to a specific threat directed at a particular facility. See 4 W.R. LaFave, Search and Seizure § 10.7(a), at 651 (3d ed. 1996) (court house screening procedures do not require “a building-by-building showing of the risk of bombing, any more than the hijacker detection program requires an airport-by-airport showing of the risk of hijacking”). Rather, based on prior experience with terrorism or violence, some types of facilities have been identified as particularly susceptible to attack, and officials may then take steps to prevent such attacks from occurring at other, similar facilities. Here, the Commonwealth contends that contamination or disruption of the water supply has been used as an enemy tactic throughout history such that it is logical and reasonable to identify reservoirs as likely targets of terrorist attack. See 42 U.S.C. § 300i-2 (2002) (requiring community water systems to assess their vulnerability to terrorist attack and develop emergency response plan). Because we conclude that the security measures implemented here fail other requirements for a lawful administrative search, we will assume, without deciding, that the State police had an adequate basis for implementing some form of administrative search procedure to protect the reservoir.
The Commonwealth contends that, when analyzing the “reasonableness” of a search or seizure, it need not engage in an assessment of “less intrusive alternatives.” See Commonwealth v. Shields, 402 Mass. 162, 165-166 (1988). That simply means that the government does not need a substitute alternative for the stop or seizure itself — it may be reasonable to conduct a search even if other methods, short of a search, might be available to address the government’s objective. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 453 (1990) (not up to courts to decide “which among reasonable alternative law enforcement techniques should be employed to deal with a serious
Some courts have opined that prior notice of screening procedures and an opportunity to turn away means that travelers and court house visitors have given “consent” or “implied consent” to those procedures. See, e.g., McMorris v. Alioto, 567 F.2d 897, 901 (9th Cir. 1978); State v. Rexroat, 266 Kan. 50, 54-55 (1998). In Commonwealth v. Harris, 383 Mass. 655, 657 (1981), we recognized that “elements of coercion were inherent in the situation” confronting a court house visitor, such that the security search would not qualify as a “consent” search. Rather than treating the screening process as a consensual search, we noted that advance notice, and the subsequent voluntary submis
While we have not held that advance notice is an automatic constitutional requirement for a lawful roadblock, see Commonwealth v. Amaral, 398 Mass. 98, 100 (1986), the advantages of giving notice have repeatedly been recognized in that context. See Delaware v. Prouse, 440 U.S. 648, 657 (1979), quoting United States v. Ortiz, 422 U.S. 891, 895 (1975) (where motorist approaches apparent roadblock and can see other vehicles being stopped, “he is much less likely to be frightened or annoyed by the intrusion”); Commonwealth v. McGeoghegan, 389 Mass. 137, 143 (1983) (advance notice of roadblock “would have the virtue of reducing surprise, fear, and inconvenience”). Here, what is required is that all reasonable steps be taken to minimize the intrusion, and it will often (but perhaps not always) be the case that advance notice is one of those reasonable steps.
The Commonwealth did not even attempt to establish that it would have been impossible or burdensome to provide notice. A sign posted at each end of the stretch of roadway that runs along the reservoir would have sufficed to alert motorists that they would be stopped, and at least temporary signs could have been hastily erected.
We need not address whether other steps, if any, beyond the provision of notice would be required to reduce the intrusiveness of the stop and search procedures implemented at the reservoir. Nor do we need to address any other defects in these procedures alleged by the defendant or identified by the judge.
