Opinion
No. 15–P–170.
06-27-2016
COMMONWEALTH v. Mauro T. LOBO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In his appeal from his conviction for operating a motor vehicle while under the influence of an intoxicating liquor (second offense), in violation of G.L. c. 90, § 24(1)(a ) (1), the defendant raises a single claim of error. He argues that the motion judge erred in denying his motion to suppress. In particular, he argues that there was an insufficient basis for the arresting officer to order him to exit his vehicle.
In viewing the motion to suppress, we accept the judge's findings of fact in the absence of clear error, but we apply the law de novo in assessing the defendant's constitutional claims. Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011). It is well settled that the question before us is whether the facts were such that a “reasonably prudent [person] in the [police officer's] position” would have been justified in taking the action in question. Commonwealth v. Meneide, 89 Mass.App.Ct. 448, 452 (2016), quoting from Commonwealth v. Gonsalves, 429 Mass. 658, 661 (1999). Our review is an objective one to which the officer's actual subjective intent is not relevant. Commonwealth v. Cruz, 459 Mass. 459, 462 n. 7 (2011).
The judge found that on the day in question at approximately 2:55 A.M. Officers Blando and Key of the Boston police department saw a vehicle approaching them driving the wrong way down a one-way street. The vehicle, operated by the defendant, was driving at a normal speed. Before reaching the police cruiser it turned left and the officers followed in their cruiser. The vehicle turned right and the officers activated the cruiser's blue lights and for a very brief period of time its siren. The defendant's vehicle did not immediately stop but continued some distance down Wendover Street. Although the judge made no specific finding of the fact, Officer Blando testified, and the parties agree, that the distance was approximately 100 feet. Other police vehicles, with their lights on, came up the street on which the defendant was traveling boxing in the defendant's vehicle. The judge found that “[t]he defendant's vehicle eventually came to a stop” because it was blocked by these other police vehicles.
Officer Blando exited his cruiser and ran toward the defendant's vehicle with his flashlight. The defendant was staring straight ahead at the cruiser in front of his vehicle. He did not acknowledge Officer Blando. Officer Blando ordered the defendant three separate times to turn off his engine before the defendant did so. The defendant was very slow to comply, but he eventually did so.
Before issuing an exit order, a police officer must have reasonable suspicion that safety renders it necessary. Commonwealth v. Meneide, supra. On that basis, an officer with reasonable suspicion that an individual is operating a motor vehicle while impaired by alcohol or drugs may order that individual from his vehicle in order to require him to perform a field sobriety test. Commonwealth v. Eckert, 431 Mass. 591, 596–597 (2000), citing Commonwealth v. Blais, 428 Mass. 294, 297–298 (1998).
In this case, on all the facts and circumstances, we think the police had a sufficient basis for such suspicion. The defendant drove the wrong way down a one-way street at 2:55 in the morning. When officers activated their lights and siren behind him, he did not stop until blocked in by other police vehicles. When an officer approached the window of the defendant's vehicle, the defendant did not open it, nor did he place the vehicle in park and turn off the engine until the officer instructed him to do so several times. Even then his reactions were slow. We think this evidence supports a reasonable suspicion that the defendant was operating the vehicle while intoxicated and that, rather than simply allowing him to go on his way, the officer was justified in issuing an exit order.
Judgment affirmed.