Opinion
14-P-738
10-16-2015
COMMONWEALTH v. KATHLEEN R. O'NEILL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant of one count of operating under the influence of alcohol, and the defendant stipulated that this was her third offense. On appeal, the defendant contests the pretrial order denying her motion to suppress statements made to police officers. Because we find that such statements were not made while the defendant was in custody, we affirm.
Background. At approximately 6:00 P.M. on March 27, 2011, the Concord police department received a complaint about the erratic driving of a green minivan. The complainant then called back and reported that the vehicle had entered the parking lot of a particular restaurant. The responding police officer, Sergeant Kennedy, spotted a vehicle fitting that description in the parking lot, and he noticed a woman (later identified as the defendant) standing approximately thirty to forty feet from the vehicle. Sergeant Kennedy observed that she was "swaying" and as he pulled his cruiser beside her, that "her eyes were glassy." When he asked the defendant if she had been driving the green minivan, she replied "yes." He then asked her if she would walk over to the vehicle so that he could continue talking with her. The defendant obliged, after which Sergeant Kennedy further observed that she had difficulty maintaining her balance, and that her breath smelled of alcohol. He asked the defendant if she had been drinking. She said that she had had two drinks.
Then, Officer Moore arrived on the scene. Based on the defendant's inability to complete field sobriety tests, Officer Moore placed her under arrest. Thereafter, the defendant was booked and advised of her rights.
Discussion. Our review of a motion to suppress is limited to the "application of constitutional principles to the facts as found." Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). The defendant contends that the motion judge erred as a matter of law in denying her motion to suppress because the defendant was subject to a custodial stop, rendering her unwarned statements involuntary, and thus their admission at trial constitutionally infirm. See Miranda v. Arizona, 384 U.S. 436, 444-445 (1966).
Part of the defendant's argument rests on differing with the motion judge's findings of fact -- most notably in whether either officer had his cruiser lights on in the parking lot, potentially creating a more coercive atmosphere. However, that finding was not clearly erroneous. See Commonwealth v. Smith, 456 Mass. 476, 478 (2010). Nor would accepting the defendant's version as true alter our analysis.
The defendant did not specify which unwarned, incriminating statements comprise the basis of her challenge. We infer that the statements to which the defendant alludes are her affirmative response to the question about driving the green minivan, and her statement that she had had two drinks that evening.
As the Commonwealth points out, the case law has long established that field questioning of a driver suspected of driving under the influence during a traffic stop is not considered custodial, and therefore does not require Miranda warnings. See, e.g., Berkemer v. McCarty, 468 U.S. 420, 438-440 (1984); Vanhouten v. Commonwealth, 424 Mass. 327, 331-332 (1997). Although the circumstances here are not wholly equivalent to a traffic stop (given that the vehicle was already parked in a public lot), the defendant has not shown how these differences matter. Traffic stops are typically public, they involve only one or two police officers, and they are often brief -- all of which defined the defendant's encounter. See Berkemer, 468 U.S. at 438-439. The defendant's reference to the four factors set forth in Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001), does not aid her case. As the motion judge accurately observed, three of the four factors are unavailing: the place of interrogation was in a public parking lot in the early evening, the officers gave no indication that the defendant was a suspect, and the questioning was informal in the vein of information gathering. See id. at 211-212. By the time the defendant had admitted to driving the green minivan and had exhibited signs of intoxication, Sergeant Kennedy had ample legal justification to detain her.
Judgment affirmed.
By the Court (Meade, Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 16, 2015.