422 Mass. 504 | Mass. | 1996
Lead Opinion
Anne Leonard, the defendant, claims that her rights protected by art. 14 of the Declaration of Rights of the Massachusetts Constitution and the Fourth Amendment to the United States Constitution were abridged when a State trooper opened her automobile door without her permission. The District Court judge agreed and suppressed all evidence acquired after what he concluded was an improper intrusion. A single justice of this court allowed the Commonwealth’s
The only evidence before the District Court judge was Trooper David E. Ford’s police report. We set out the relevant portions, only expanding the abbreviations. “At approx. 0100 hrs. on 05-14-94 this [trooper] observed a 1982 Dodge [sedan], color blue, Ma. [registration] 659-CTF operating on Storrow Dr. [westbound] before the Lagoon area. As I pulled alongside this vehicle, to pass same, the [motor vehicle] pulled into the breakdown area adjacent to the Lagoon. This [trooper] observed a white female, approx. 50-60 yrs. of age [operating] said [motor vehicle]. As I was now beyond the cut-out area and the [motor vehicle] traffic was heavy behind me I continued on to the Bowker Overpass where I made a U-tum, exited at the Govt. Center exit and headed [westbound] to the [motor vehicle] in question. At this time I pulled my cruiser alongside the [motor vehicle] and activated my blue lights. After several attempts at using the PA system and air-horn to gain the attention of the female operator, to no avail, I backed my cruiser into the cut-out. At this point I approached the [motor vehicle] on the driver[’]s side and knocked on the driver[’]s window approx. 3-4 times. When no response to my knocking elicited any response from the operator, I opened the driver[’]s door. At this time the female [operator], whom I recognized from my previous passing, looked up at me & said ‘what the fuck do you want’. I then asked [subject] what was wrong. She stated ‘what the fuck do you care’. At this time I asked [subject] for her license & [registration], which she eventually produced after a couple of minutes of searching her pocketbook. During this time I observed a strong odor of liquor coming from [subject’s] breath, as I was only inches away from her face. This [trooper] then asked [subject] how many drinks she had had. [Subject’s] response was T don’t drink you bastard.’ ”
Ford then told Leonard to step outside the vehicle, which she refused to do. With the help of another trooper who had just arrived on the scene Ford forcibly removed her. She resisted and was physically and verbally abusive. Leonard was informed that she was being placed under arrest and was brought to police headquarters where she was booked and charged with operating a vehicle while under the influence of alcohol and disorderly conduct.
In our view, Trooper Ford was doing his duty as he patrolled the highway to inquire whether the driver of the automobile was ill or in some other kind of difficulty. This reflex is so naturally helpful and so appropriate to his duties that Leonard’s repeated failure to respond in any way to Ford’s attempts to attract her attention could only excite further concern on his part. When she did not respond — not with a gesture, a smile, or a nod of the head — to his taps on her window, the circumstance must have appeared even more unusual and the possibility that the driver was seriously ill much more likely. At this point he opened her automobile door; and if that was a reasonable and legally permissible thing to do, the evidence he discovered should not have been excluded.
It is a premise of the District Court judge’s reasoning that by opening the automobile door Trooper Ford invaded Leonard’s constitutionally protected privacy rights and so required prior justification under the Fourth Amendment and art. 14. And since there was not even a reasonable suspicion that a crime had been committed — and the Commonwealth claims none — the judge was well on his way to the conclusion that there was here a violation of constitutional rights. The judge considered that only our reasoning in Commonwealth v. King, 389 Mass. 233 (1983), might deflect him from that conclusion. In that case we considered an encounter with a station wagon parked, its engine running, in a rest area on a cold winter night. The encounter began with an inquiry, proceeded by the police blocking the station wagon’s departure, and escalated to a gun fight. In King, we stated that “[t]he investigatory check of a parked vehicle during winter months, regardless of its limited purpose and brevity,
“The very limited and focused inspection of a vehicle to determine whether assistance or aid is required is a minimal intrusion on the occupant’s, or owner’s, expectation of privacy. The situation here does not involve a random stop causing concern, fright, or anxiety. ... It does not involve a situation where a more limited alternative is possible or where there is no constraint on the discretion of the law enforcer. . . . The policy required every stopped and parked car to be inspected. The policy limited the intrusion only to that time period when the hazards arise.” (Citations and footnote omitted.)
Remarks in our decision in Commonwealth v. Helme, 399 Mass. 298, 302 (1987) (“The policy of investigating parked automobiles with interior lights on is too broad to justify even the limited intrusion of approaching the car to determine ‘if everything is all right’”), supported the judge’s reading. The District Court judge concluded that there must be “circumstances suggesting a medical problem . . . along with a police policy based upon a careful weighing of the public interest in intervention against the individual’s right to privacy and that severely limits police discretion.” Since there was no claim that Trooper Ford “was acting in accordance with an official policy of the state police . . . and [no] specific facts
To begin with, it is not clear that anything Trooper Ford did up to and including opening the automobile door went beyond the kind of police-citizen interchange that constitutes no intrusion and requires no justification.
If there was an intrusion here, it was justified as reasonable in the circumstances. Once the trooper was justified in making his entry into the car, anything he acquired within the scope of his inquiry is properly admissible in a court of law. Cf. King, supra at 243. Thus, the evidence gleaned after the door was opened — the odor of alcohol on Leonard’s breath and testimony as to her violent and abusive words and action — should not have been excluded. The District Court judge’s suppression order is reversed.
So ordered.
Although this court has decided that in some circumstances art. 14 provides greater protection than the Fourth Amendment, see, e.g., Commonwealth v. Blood, 400 Mass. 61, 74 (1987) (wiretaps); Commonwealth v. Upton, 394 Mass. 363 (1985) (confidential informants), the defendant has offered us no compelling reason to expand the protection of art. 14 here.
As the District Court judge noted, “The Commonwealth [argues] that this case falls into a special category of cases in which the police are justified in interfering with a motorist’s liberty without probable cause and without a warrant because there is reason to believe the motorist may be in need of assistance.”
Decisions in other jurisdictions, while not on all fours with the facts of this case, support this conclusion. See, e.g., United States v. Haley, 581 F.2d 723, 726 (8th Cir.), cert. denied, 439 U.S. 1005 (1978) (entry into automobile to “seek identification or medical alert cards which might be of assistance” to a man found unconscious nearby who did not appear to be either hurt or under the influence of alcohol); State v. Kersh, 313 N.W.2d 566 (Iowa 1981) (defendant slumped behind steering wheel did not respond to knocks on window). See also 3 W.R. LaFave, Search and Seizure § 7.4(f), at 570 n.142 (3d ed. 1996) (collecting cases).
Dissenting Opinion
(dissenting). A great body of law has been painstakingly developed over many years to interpret and give meaning to our Federal and State Constitutions in such a manner as to protect the rights of the citizenry from the overreaching of government. I had assumed it to be our responsibility to recognize overreaching by law enforcement personnel when it occurs. Today, the court is faced once again with the familiar complaint that the police have intruded into the domain of citizen privacy. In response, the court fails even to decide whether the officer involved conducted a search or a seizure. The court decides instead, contrary to the facts found by the District Court judge, that the police officer acted reasonably with good intentions, and looks no further.
Ignored also is the fundamental appellate principle that we ought to uphold a judge’s subsidiary findings of fact if they are warranted by the evidence. Commonwealth v. Silva, 388 Mass. 495, 501-502 (1983). It is clear from the judge’s memorandum of decision that he found no objective basis on which the trooper could have concluded the defendant was either engaged in criminal conduct or in need of aid or assistance. He stated that, “absent some specific facts and circumstances suggesting the defendant was engaged in criminal activity or injured, the trooper had no right to open the vehicle’s door.” Further, he found, “It is plain that the occupant of the vehicle either didn’t hear his efforts to gain her attention or simply chose to ignore him.” The judge quoted the defendant’s memorandum in support of her motion to suppress: “There is no allegation that the defendant was at the time unconscious, in need of medical attention, or a danger to herself or others. The defendant simply refused to respond to the officer . . . .” Is it not true in this Commonwealth that, ordinarily, a citizen need not comply with a police request, and is free to walk away?
The court substitutes its interpretation of the events for those of the judge. The court states that, “[i]n our view, Trooper Ford was doing his duty as he patrolled the highway to inquire whether the driver of the automobile was ill or in some other kind of difficulty. This reflex is so naturally helpful and so appropriate to his duties that Leonard’s repeated failure to respond in any way to Ford’s attempts to attract her attention could only excite further concern on his part. When she did not respond — not with a gesture, a smile, or a nod of the head — to his taps on her window, the circumstance must have appeared even more unusual and the possibility that the driver was seriously ill much more likely.” Ante at 506. Such assumptions cannot replace the obligation of an officer of the law to determine independently and objectively whether any particular person who, on his or her own initiative, pulls over to the side of a road does in fact appear to be in need of aid or assistance, or is engaged in suspicious conduct. Certainly a person in an automobile may pull off a highway to consult a road map, to look safely for an item lost between the seats, to remove a speck of dust from an eye, or for any number of benign reasons not raising the suspicions of a passing officer. Yet, the court states that the officer pulled in behind the defendant in this case “to inquire whether the driver of the automobile was ill or in some other kind of difficulty.” Ante at 506. Neither the officer nor the Commonwealth advanced this claim, and the judge did not so find.
As the judge concluded, it is clear from our case law that opening the defendant’s door constituted a seizure of the defendant’s automobile. See Commonwealth v. Sumerlin, 393 Mass. 127, 128 & n.1 (1984), cert. denied, 469 U.S. 1193 (1985) (approaching car and opening door without inquiry of occupants is a search); Commonwealth v. Podgurski, 386 Mass. 385, 388, 390 (1982), cert. denied, 459 U.S. 1222 (1983) (poking head through open door into passenger compartment of windowless van is search and not “threshold inquiry”; looking through window without physical intrusion would not be search); Commonwealth v. Almeida, 373 Mass. 266, 269-270 (1977), S.C., 381 Mass. 420 (1980) (ordering occupant
The judge applied the proper law to the facts, discussing our cases of Commonwealth v. Helme, 399 Mass. 298 (1987), and Commonwealth v. King, 389 Mass. 233 (1983), S.C., 400 Mass. 283 (1987), and the Appeals Court’s decision of Commonwealth v. Tompert, supra. An initial police inquiry must rest on “specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer’s experience. A mere ‘hunch’ is not enough. Simple good faith on the part of the officer is not enough. The test is an objective one.” Commonwealth v. Cantalupo, 380 Mass. 173, 175-176 (1980), quoting Commonwealth v. Silva, 366 Mass. 402, 406 (1974). The judge was correct when he stated that “when police conduct amounts to a stop or detention . . . there must be a prior justification either in the form of articulable facts and circumstances suggestive of criminal activity or circumstances suggesting a medical problem or [hazard] to safety or health.” As the Commonwealth presented no such justification, the judge’s conclusion that none existed is not clearly erroneous.
The King, Helme, and Tompert cases all involved standard
It is reasonable to conclude that this court’s reasoning will encourage police to fabricate stories of drivers potentially requiring aid and assistance as a pretext for stopping lone drivers at night on the highways and roads of the Commonwealth. See 3 W.R. LaFave, Search and Seizure § 7.5(e), at 590 (3d ed. 1996). This court should take extra care to
General Laws c. 90, § 25 (1994 ed.), does provide that one “who, while operating or in charge of a motor vehicle, shall refuse, when requested by a police officer, to give his name and address ... or who shall refuse or neglect to stop when signalled to stop by any police officer who is in uniform or who displays his badge conspicuously on the outside of his outer coat or garment . . . shall be punished by a fine of one hundred dollars” (emphasis supplied). This statute is not relied on by the Commonwealth or the court. In any event, it seems inapplicable to the facts of this case.
The trooper did not say anything of the kind. Nor did the judge so find.