Commonwealth v. TrumbleCommonwealth v. Trumble
Lead Opinion
On July 2 and 3, 1983, State police officers conducted a roadblock on Route 116 in Sunderland. Each of the three defendants was stopped at the roadblock and, subsequently, arrested and charged with operating a motor vehicle while under the influence of alcohol.
“1. Were guidelines promulgated by the Secretary of Public Safety to govern drunk driving roadblocks properly promulgated and did they make adequate provisions so as not to offend the guarantees of the Fourth and Fourteenth Amendments to the United States Constitution, Articles 12 and 14 of the Massachusetts Declaration of Rights and Massachusetts General Laws, Chapter 41, Section 98?2
“2. If the answer to Question 1 is in the affirmative, was the roadblock conducted on July 2nd and July 3rd, 1983 on Route 116 in Sunderland, executed in substantial compliance with the guidelines promulgated by the Secretary of Public Safety so as not to offend the guarantees of the Fourth and Fourteenth Amendments to the United States Constitution, Articles 12 and 14 of the Massachusetts Declaration of Rights and Massachusetts General Laws, Chapter 41, Section 98?
“3. If the answer to Question 2 is in the affirmativе, would a future roadblock conducted in substantial compliance with the guidelines in this case but without any notice or publicity still not offend the guarantees of the Fourth and Fourteenth Amendments to the United States Constitution, Articles 12 and 14 of the Massachusetts Declaration of Rights, and Massachusetts General Laws, Chapter 41, Section 98?”
For the reasons set forth below, we answer “Yes” to Questions 1 and 2 as we interpret them. We choose not to address the issues presented by Question 3. We have reproduced the guidelines in an Appendix to this opinion.
1. Factual background. The facts, as agreed upon by the parties, may be summarized as follows.
A. Development and dissemination of the guidelines. In March of 1983, the Governor of the Commonwealth and Charles V. Barry, Secretary of Public Safety of the Commonwealth, decided to implement a series of roadblocks in an attempt to deter drunk driving. Lieutenant Thomas K. Kennedy, the hеad of Research and Development for the State Police, in consultation with several individuals and organizations,
On May 20, 1983, Secretary Barry’s office decided that the first such roadblocks would be conducted on the upcoming July fourth weekend. On June 28, 1983, a training session was held at the State Police Academy. Captain James Port, Commanding Officer of the State Police Traffic Bureau, conducted the session, which was intended to train those in attendance to implement the guidelines at roadblocks to be conducted during the July fourth weekend. Those invited to the training session included the heads of all the State police troops in the Commonwealth, as well as their assistants. Each person who attended the session received a copy of the guidelines.
At this training session, Port emphasized that there should be no deviations from the guidelines while the roadblocks were being conducted. If an emergency occurred, any change in the procedures set forth in the guidelines would have to be made by the supervising officer.
A second training session took place at the Academy on June 30, 1983. At this session, a demonstration roadblock was conducted in accordance with the instructions provided at the June 28 session. Those attending the sessions were told that the following criteria were to be applied in selecting a roadblock site: high accident rates, high rates of drunk driving arrests, safety conditions, and motorist сonvenience.
B. The Sunderland roadblock. Captain Thomas J. Fitzgerald, the captain in charge of the State police in Western Massachusetts, accompanied by several assistants, attended the June 28 training session. Captain Fitzgerald also attended the June 30 session. He chose the site for the Sunderland roadblock, which was conducted on Route 116. The Route 116 patrol area is a high fatality area, and one with a high rate of drunk driving arrests.
The roadblock detail began at 7 p.m. on July 2, 1983. Thirteen uniformed State police officers, including Captain Fitzgerald and one other officer who had attended the June 28 training session, took part in the roadblock. Each trooper received approximately one hour of training, during which Fitz
The troopers were instructed to stop every automobile as it approached the roadblock site, but to allow trucks and tractor-trailer units to pass through the roadblock without stopping. They were told that the initial contact would be no more than one minute for each individual operator. During that brief period, the troopers were to say “Good evening, how are you, this is a State Police sobriety checkpoint, we would like you to have a copy of the brochure on drunk driving laws.” If the troopers saw no problems, they were to say “Thank you,” and allow the vehicle to proceed. The actual stopping time at the roadblock was approximately thirty seconds. During that period, the trooper was instructed to observe the operator, as well as the interior of the vehicle, to determine if there was any suspicion that the operator had been drinking.
If the trooper suspected that the operator had been drinking, the trooper was to instruct the operator to drive to a detention area. Unless the operator was extremely intoxicated, he or she would be permitted to drive the vehicle into this area. In the detention area, a driver would be asked to produce a license and registration, and to perform three field sobriety tests.
The roadblock began at approximately 11:30 p.m. on July 2, 1983, and ended at approximately 2 a.m. on July 3, 1983. Five hundred and three vehicles approached the roadblock. Each was stopped. Sixteen operators were dеtained for further checks. Eight operators, including the three defendants, were arrested.
C. Publicity. Prior to the July fourth weekend, information concerning the upcoming roadblocks was provided to the news media, including television, radio, and print. Secretary Barry and Captain Fitzgerald both spoke to members of the media. The public relations office of the State Police distributed press releases to over four hundred news media affiliates within the State. Several newspapers, radio stations, and television stations in Hampshire County disseminated information about the roadblocks both prior to and during the holiday weekend.
Clearly there exists a strong public interest in reducing the “carnage caused by drunk drivers.” South Dakota v. Neville,
In McGeoghegan, we considered whether a roadblock designed to detect drunk drivers could be conducted in a manner that would be constitutionally permissible. After considering relevant Supreme Court decisions in the area, we suggested that for a roadblock to be permissible, “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.” McGeoghegan, supra at 143. We further suggested that advanсe notice of an intended roadblock, although perhaps not constitutionally mandated, would be appropriate because it would “have the virtue of reducing surprise, fear, and inconvenience.” Id. We remain of the opinion that the above standards are relevant to any analysis of the validity of a roadblock procedure under both the State and Federal Constitutions.
Cases from other States which have considered roadblocks executed under guidelines are supportive. See, e.g., Stark v. Perpich,
3. Question 1: “Were guidelines promulgated by the Secretary of Public Safety to govern drunk driving roadblocks properly promulgated and did they make adequate provisions so as not to offend the guarantees of the Fourth and Fourteenth Amendments to the United States Constitution, Articles 12 and 14 of the Massachusetts Declaration of Rights and Massachusetts General Laws, Chapter 41, Section 98?”
The defendants argue that the guidelines are of “general application,” and thus fall within the purview of the Act. Determining whether a particular guideline or pronouncement constitutes a “regulation” under the Act may be a difficult task.
Clause (b) only applies to regulations that do not “substantially affect [ ] the rights of or the procedures available to the public . . . .” The guidelines describe the purpose and operational philosophy underlying the use of roadblocks. They limn important procedural and safety considerations. The guidelines reflect an attempt to ensure that the State police execute roadblocks in compliance with the principles articulated in Commonwealth v. McGeoghegan, supra. They do not purport directly to regulate public conduct. The guidelines are simply an accurate reflection of the rights of the public as set forth in McGeoghegan. We conclude that the guidelines are not regulations as defined in
We turn to the roadblock procedures contained in the guidelines. The guidelines clearly proscribe the arbitrary selection of vehicles to be stopped. Ample provision is made to assure that the roadblock is conducted safely, including clear directions on the manner in which the sites should be selected and set up. The guidelines also address the element of motorist inconvenience, bоth with respect to traffic congestion and the brief nature of the initial stop. Furthermore, the guidelines require that a roadblock be planned in advance by supervisory personnel. The plans must include “date, location, time, duration, and set patterns of cars to be stopped.” Finally, the guidelines provide that the supervisors will announce the date of an intended roadblock to the news media, at best three days prior to its implementation.
The guidelines at issue clearly comport with the McGeoghe-gan principles. Balancing the procedures against the public’s interest in curtailing drunk driving, we conclude (without decid
4. Question 2: “If the answer to Question 1 is in the affirmative, was the roadblock conducted on July 2nd and July 3rd, 1983 on Route 116 in Sunderland, executed in substantial compliance with the guidelines promulgated by the Secretary of Public Safety so as not to offend the guarantees of the Fourth and Fourteenth Amendments to the United States Constitution, Articles 12 and 14 of the Massachusetts Declaration of Rights and Massachusetts General Laws, Chapter 41, Section 98?”
The Commonwealth bears the burden of proving the lawfulness of the Sunderland roadblock. Commonwealth v. An-tobenedetto,
Thirteen uniformed State troopers were present at the roadblock site. Five hundred feet before the stopping area there was placed a four by five foot reflectorized sign which read “Stop Ahead” “Roadblock.” A safety cruiser with all of its lights illuminated was positioned directly across from the sign. Safety flares were placed throughout the roadblock area. A second sign and five flares were placed three hundred feet from the stopping point. Four cruisers were parked close to the stopping area. The stopping area was brightly illuminated by lights from a police van.
The troopers were instructed to stop every automobile that approached the site. Captain Fitzgerald stressed to those involved in the roadblock that there should be no deviation from the procedures set forth in the guidelines. Motorists passing
In sum, the conduct of the roadblock was most reasonable and entirely responsive to the requirements and directions laid down in McGeoghegan. The news media ran numerous stories advising the public of the announcement by the authorities that at least one roadblock would be conducted by the State police somewhere within the area patrolled by the State police assigned to the Northampton barracks. They limited the time within which a motorist would be stopped. The area was lighted and the police had no discretion in the selectiоn of motorists to be stopped. This is clearly not arbitrary and capricious conduct.
There is nothing in the statement of agreed facts to indicate that the guidelines were not carefully followed in this case.
5. Question 3: “If the answer to Question 2 is in the affirmative, would a future roadblock conducted in substantial compliance with the guidelines in this case but without any notice or publicity still not offend the guarantees of the Fourth and Fourteenth Amendments to the United States Constitution, Articles 12 and 14 of the Massachusetts Declaration of Rights, and Massachusetts General Laws, Chapter 41, Section 98?”
We choose not to address this issue. As a general rule, this court does not express an opinion on hypothetical questions involving constitutional law. Solomon v. School Comm. of Boston,
6. We answer “Yes” to Questions 1 and 2, as we have construed them. We decline to answer Question 3. The case is remanded to the county court for disposition consistent with this opinion.
Notes
It is difficult to know why reference is made in all three questions to
The guidelines were developed in consultation with Secretary Barry, the Governor’s Legal Counsel, the Drunk Driving Committee of the Governor’s Anti-Crime Council, the Criminal Justice Training Council, the chief of police of Revere, and the National Highway Traffic Safety Administration.
We acknowledge the brief submitted by the Secretary of Public Safety, amicus curiae, with respect to this issue.
We have intimated that “there is such a thing as an advisory or informational pronouncement by an administrative agency that may be issued lawfully in relation to a regulation (or a statute) without going through the procedures required for promulgation of a regulation.” Massachusetts Gen. Hosp. v. Rate Setting Comm’n,
Concurrence Opinion
(concurring). I concur in the court’s decision. Other States have concluded that roadblocks subject to guidelines that restrict police discretion are constitutionally permissible. See, e.g., United States v. Prichard,
Although “there is nо ‘typical’ sobriety checkpoint roadblock,” Rogers, The Drunk-Driving Roadblock: Random Seizure or Minimal Instrusion?, 21 Crim. L. Bull. 197, 204 (1985), it is possible to distill from the case law and legal commentators the principles necessary to pass constitutional muster. There must exist “(1) a checkpoint or roadblock location selected for its safety and visibility to oncoming motorists;
As I read Delaware v. Prouse,
The thrust of the defendants’ argument is that “[b]y eliminating the requirement that an officer act only on reasonable and articulable facts or probable cause, which is subject to judicial review, the standardless intrusion by an officer eludes scrutiny and renders the Fourth Amendment (as well as art. 14 of the Declaration of Rights) a virtual nullity.” The Supreme Court, however, has already indicated that, in the appropriate circumstances, roadblock stops do not violate motorists’ Federal constitutional rights. See Delaware v. Prouse, supra at 663.
Last, although we said that roadblocks coupled with advance publicity “may achieve а degree of law enforcement and highway safety that is not reasonably attainable by less intrusive means,” Commonwealth v. McGeoghegan,
The guidelines here at issue are an attempt to reduce the threat of drivers who drive while under the influence of intoxicating liquor while remaining sensitive to the individual motorist’s expectation of privacy. “No one can deny the State’s vital interest in promoting public safety upon our roads by detecting and prosecuting drunk drivers. These drivers are a threat to other motorists, to pedestrians and to themselves.” State v. Coccomo, supra at 582. On the issues raised by the defendants, there was no error in denying the motions to suppress.
Decisions involving fixed or permanent immigration checkpoints lend further guidance in determining the reasonableness of a roadblock. See, e.g., United States v. Martinez-Fuerte,
In Delaware v. Prouse,
The defendants, however, have not raised the issue of “permanence” and the court need not reach it. I only note, however, that the roadblock here was not a roving patrol; it was in a fixed location not subject to police officers’ discretion.
In their brief, the defendants suggest that, even with the guidelines, an individual driver who is detained may be subject to arbitrary police conduct during the detention. Nothing the court holds prevents an individual driver from raising a claim of violation of constitutional rights during a particular seizure and detention. The burden of justifying police conduct during the challenged warrantless seizure and detention is on the Commonwealth. See Commonwealth v. Antobenedetto,
On this issue, the defendants do not make any separate argument that the State Constitution’s standard differs from the Federal standard.
Dissenting Opinion
(dissenting with whom Liacos, J., joins). The court properly acknowledges that the stopping of each defendant’s motor vehicle was a seizure under the Fourth and Fourteenth Amendments to the United States Constitution. Ante at 86. See Delaware v. Prouse,
“No method of spot checking motor vehicles to discover drunk drivers, in the absence of probable cause or articulable suspicion, has been held by the Supreme Court of the United States to be constitutionally permissible.” Commonwealth v. McGeoghegan, supra at 139. That Court has repeatedly emphasized that a factor to bе weighed in determining whether a roadblock is constitutional is “the absence of practical alternatives” for protecting the public interest. See, e.g., Delaware v. Prouse, supra at 655, quoting United States v. Brignoni-Ponce,
Nor has this court previously deсided that the Commonwealth had met its burden to show the reasonableness of a roadblock conducted under the circumstances of the one in question here. Nevertheless, the court relieves the Commonwealth of its burden to show that the roadblock was more effective in advancing the public interest in curbing drunk driving than alternative, less intrusive mechanisms. Other courts have recognized that the State must make this showing,
The record in this case clearly raises the question whether the Sunderland roadblock of July 2-3, 1983, was as effective in curbing drunk driving as traditional, less intrusive alternatives. During approximately two and one-half hours, State police officers stopped 503 vehicles. Although the roadblock claimed the services of thirteen officers and caused an intrusion into the Fourth Amendment rights of several hundred law-abiding citizens, it resulted in only eight arrests. There is no showing in the record that the roadblock was more effective than less intrusive mechanisms would have been.
The court’s holding that the seizures at the Sunderland roadblocks were reasonable contrasts sharply with other decisions of this court concerning the scope of protection afforded by the Fourth Amendment. See, e.g., Commonwealth v. Piet-rass, 392 Mass. 892, 898-900 (1984) (even though there was probable cause to arrest the defendant on charges of aggravated rape and other violent crimes, the Commonwealth failed to meet its burden of showing exigency, so the police were not justified in making a warrantless entry of a dwelling to arrest
At least one objective study supports the contrary proposition and demonstrates that a roadblock program was an ineffective technique by which to deter and detect drunk driving. See Little v. State,
The court’s holding, however, rested solely on an interpretation of the New Hampshirе Constitution. Although the language of Part I, article 19, the relevant section of the New Hampshire Constitution, is “similar to that in the Federal Constitution,” article 19 was construed to provide greater protection for individual rights than the Fourth Amendment. State v. Koppel, supra at 289.
The police could have patrolled the roadways and stopped any motor vehicle where the driver’s conduct raised a reasonable suspicion of intoxication. See Terry v. Ohio,
In 1982, the Legislature amended
Although I do not reach the question, I have some doubts concerning the court’s conclusion that the promulgation of the roadblock guidelines need not have been in compliance with the requirements for adopting regulations under