Opinion
No. 11–P–1070.
2012-05-30
COMMONWEALTH v. William CORDEIRO.
By the Court (KANTROWITZ, COHEN & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth filed an interlocutory appeal from the order allowing the defendant's motion to suppress evidence, claiming that the stop was permissible as a community caretaking function. We agree and therefore reverse the order below.
The case of Commonwealth v. Canavan, 40 Mass.App.Ct. 642, 645 (1996), is instructive. There the court recognized that stopping an automobile and detaining its occupant constitutes a seizure, even though the purpose of the stop is limited and the resulting detention brief. Whether the seizure violates constitutional principles “depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.... [P]olice officers may intrude to some extent on the individual's privacy when they perform ‘community caretaking functions' unrelated to crime detection or regulatory purposes” (internal citations omitted). Thus, a stop is permitted to render assistance, to warn of safety hazards, or to assist a thought-to-be ill driver. In a case involving a motorist who appears to be lost, a stop is permissible if coupled with other complicating elements. Id. at 647. The community caretaking function permits a stop to assist a possibly impaired driver, as well as to protect the public. Commonwealth v. Murdough, 428 Mass. 760, 764 (1999).
Here the officer testified that she stopped the vehicle as it started to go around the building again because “there might have been something wrong, that he might have been looking for some help or having a medical issue or something like that.”
In sum, Canavan, supra at 647, states that in situations such as these-where the officer stops the vehicle believing the driver is in need of assistance—“complicating elements” are needed to justify the stop. In Canavan the court concluded that there were insufficient “complicating elements” to justify the stop. Here, however, the elements include a driver, at 2:00 A. M., driving approximately twenty miles per hour in the high speed lane of a four-lane highway where the speed limit is fifty miles per hour, who turned into an unmanned fire station and circled around it once and appeared to be traveling around a second time, when the officer got behind him and blew her horn, to which the defendant failed to respond. See Commonwealth v. Leonard, 422 Mass. 504, 506, cert. denied, 519 U.S. 877 (1996) (failing to acknowledge officer's attempt to attract defendant's attention caused circumstances to appear “even more unusual and the possibility that the driver was seriously ill much more likely”). At this point, the officer turned on her blue lights and effectuated the stop.
As a result of the stop, the defendant was charged with operating a motor vehicle under the influence of alcohol and negligent operation of a motor vehicle.
The defendant's driving behavior, the time of night, his slow speed when first observed, his apparent intention to circle the fire station a second time, combined with his failure to respond to the officer's honking, permissibly led a reasonable person to conclude that “the driver of the automobile was ill or in some other kind of difficulty.” Commonwealth v. Leonard, 422 Mass. at 506.
The motion judge found fault with the officer's actions because the judge reasoned that if the officer really had been concerned with the well-being of the driver, the officer's first encounter with the driver would not have involved a request for his license and registration. This, however, did not render the stop invalid, as we examine the actions of the officer using an objective, not subjective, standard. “The Supreme Judicial Court has ‘never held, outside the context of [an] inventory search or administrative inspection ... that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but [it has] repeatedly held and asserted the contrary.’ Whren v. United States, 517 U.S. 806, 812.” Commonwealth v. Murdough, 44 Mass.App.Ct. 736, 740 (1998), S.C. 428 Mass. 760 (1999). The motive of the officer does not invalidate objectively justifiable behavior. We further note that asking for the license and registration of an unknown motorist at 2:00 A.M. might be considered a reasonable safety precaution on behalf of the officer.
The defendant made a request for attorney's fees under Mass.R.Crim.P. 15(d), as appearing in 422 Mass. 1501 (1996), both in his brief and in a separate filing. The defendant's attorney has filed his affidavit setting forth his request with specificity. The Commonwealth has fourteen days from the date of the rescript in which to respond.
Order allowing motion to suppress reversed.