Opinion
13-P-1920
11-03-2014
COMMONWEALTH v. SCOTT M. MCLEOD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order of a District Court judge allowing the defendant's motion to dismiss a complaint of operating a motor vehicle under the influence of alcohol. After a hearing, the judge concluded that the Massachusetts State police roadblock was properly noticed and implemented. Nevertheless, the judge allowed the defendant's motion on the grounds that (1) the roadblock was in fact two roadblocks, one conducted by State police and one by Hingham police, and (2) the preferred policy of sending a motorist initially screened by a Hingham police greeter to a Hingham police officer for secondary screening was arbitrary and unreasonable because it produced a greater likelihood of arrest. We conclude that the judge erred, and neither dismissal of the complaint nor suppression of evidence was warranted.
While captioned a "motion to dismiss for failure to comply with roadblock requirement," the prayer in the defendant's motion sought suppression of evidence and statements allegedly obtained in violation of the United States Constitution and the Massachusetts Declaration of Rights.
1. Dismissal. Even had the roadblock failed to comply with constitutional requirements, dismissal of the complaint would not be warranted. The defendant's motion did not challenge the validity of the complaint, but sought suppression of evidence claimed to have been obtained in violation of his rights under the Federal and State constitutions. See Commonwealth v. Bell, 83 Mass. App. Ct. 61, 62 (2013) (after issuance of complaint, motion to dismiss lies for failure to present sufficient evidence, violation of proceeding's integrity, or challenges directed to validity of complaint).
2. Suppression. On the night in question, the State police set up a sobriety checkpoint on Route 3A in Hingham. The roadblock was manned by both State troopers and Hingham police officers, under the operational control of the State police, and organized under the Department of State Police General Order, TRF-15, and Division Commander's Order 12-DFS-041.
State police Captain Thomas Majenski, who was in charge of the roadblock, briefed the State police participants on its requirements during roll call, and the participating Hingham police officers on site prior to its commencement. Every participant received a copy of TRF-15 for review and acknowledged review of the guidelines by signing off (or printing) on the duty roster. While nothing in the governing directives required a State police greeter to direct a screened motorist to a State police secondary screener or a Hingham police officer greeter to direct a screened motorist to a Hingham police secondary screener, such a practice facilitated the writing of reports and, subject to the availability of officers, was considered the best practice. At the same time, if a State police officer serving as a secondary screener was occupied, a motorist screened for further testing by a State police greeter would be directed to a Hingham police officer for further testing, and vice versa.
On the night in question, 22 of 641 motorists were initially screened for further testing -- eleven by a State police greeter and eleven by a Hingham police greeter. Of the twenty-two individuals selected for further screening, seven were arrested -- five by the Hingham police, and two by the State police.
Hingham police Officer Thomas Ford was working as a greeter when he stopped the defendant's car at the roadblock. Ford noted that the defendant had red, glassy eyes and that an odor of alcohol was coming from inside the defendant's vehicle. Upon making these observations, Ford notified a State trooper, who directed the defendant to a location for secondary screening. As a result of that secondary screening, the defendant was arrested and charged with operating under the influence.
The defendant's secondary screening and arrest was conducted by a Hingham police officer.
On this factual predicate, the judge concluded that the State police roadblock was conducted and implemented in accordance with constitutional guidelines and that the officers' actions in administering the roadblock were not constitutionally deficient. See Commonwealth v. Murphy, 454 Mass. 318, 323-325 (2009); Commonwealth v. Aivano, 81 Mass. App. Ct. 247, 250 (2012) ("linchpin for determining constitutionality of a roadblock is the use of a predetermined plan, developed by supervisory law enforcement personnel, to eliminate the exercise of discretion by law enforcement personnel in the field"). This determination should have ended the inquiry and resulted in denial of the defendant's prayer for suppression of evidence. See Commonwealth v. Murphy, supra. The judge went on to conclude, however, that the stop of the defendant was constitutionally deficient because "the sobriety checkpoint . . . was in fact two checkpoints. One conducted by the Massachusetts State police in accordance with their orders, policies and procedures[,] and one conducted by the Hingham police." Further, the judge ruled, because the State and Hingham police each screened eleven motorists for further testing, and the Hingham police arrested three more individuals than the State police, the discretion as to which law enforcement agency would conduct the secondary screening was arbitrary and capricious. The judge reasoned, "the direction to have field sobriety tests conducted by Hingham officers of citizens screen[ed] by Hingham officers and by State Troopers in the case of citizens screened by Troopers [was] arbitrary and unreasonable." In these additional legal rulings, the judge erred.
The defendant has not challenged the existence of reasonable suspicion to refer him for secondary screening or the existence of probable cause for his arrest following the secondary screening. Indeed, at the hearing, defense counsel waived any claim that the defendant's arrest was not based on probable cause.
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On the facts found, there was but a single roadblock directed and controlled by the State police in which the Hingham police participated and assisted. We discern no constitutionally impermissible amount of discretion, nor anything arbitrary and capricious in the assignment of initially screened motorists for further screening. See Commonwealth v. Murphy, supra at 326 (evaluating lawfulness of secondary screening based on existence of reasonable suspicion, not on whether officer had discretion to forgo or defer the stop). The determination of which of the two cooperating law enforcement agencies would conduct secondary screening does not implicate any constitutional rights of the defendant as both the State police and Hingham police are subject to the same constitutional constraints in the determination of reasonable suspicion and probable cause. Nor does the fact that five of eleven motorists screened by a Hingham police officer were arrested (including the defendant), whereas only two of the eleven screened by a State police officer were arrested, establish that the roadblock was arbitrary, capricious, or unreasonable.
We reverse the order allowing the motion to dismiss and to suppress evidence, and remand to the District Court for further proceedings.
So ordered.
By the Court (Grasso, Kantrowitz & Meade, JJ.),
Clerk Entered: November 3, 2014.