Opinion
10-P-1821
12-08-2011
COMMONWEALTH v. JOSEPH E. DICK.
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
A District Court jury convicted the defendant of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), second offense, G. L. c. 90, § 24(1)(a)(1); and (2) responsibility for a civil motor vehicle infraction by reason of an equipment violation, G. L. c. 90, § 7. He appeals from the resulting OUI, second offense, judgment of guilt upon the grounds that all evidence against him resulted from a police officer's stop of his vehicle without reasonable suspicion and therefore in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. For the following reasons, we conclude that the District Court judge correctly denied the defendant's pretrial motion to suppress the challenged evidence, and we therefore affirm the judgment.
Background. The parties do not dispute the following material facts. At approximately 11:40 P. M. on the night of October 20, 2008, Sergeant Steven May of the Rowley police department was maintaining stationary traffic surveillance on Route 133 in that town. The defendant's automobile passed his location. From his lateral view of the car, Officer May saw that the right rear tail light was fractured along the right edge of the lens and was consequently emitting a white, rather than red, light. He pulled onto the road, activated his cruiser's emergency lights, and followed and pulled over the defendant's car after about one hundred yards of travel.
It is undisputed that this motor vehicle stop enabled the officer to observe the defendant's appearance and conduct in the automobile. At trial, he testified that the defendant's movements were lethargic; that his speech was slow and slurred; that his eyes were red and glossy; and that a strong odor of liquor emanated from his person. Officer May asked the defendant to step outside and to perform several field sobriety tests. At the conclusion of the tests, the officer placed the defendant under arrest.
At the suppression hearing, May explained that he undertook an investigatory stop of the defendant's automobile because he believed that the vehicle suffered from a defective tail light and that the driver was therefore committing a civil motor vehicle infraction.
Analysis. The sole issue on appeal is the defendant's contention that the police officer lacked the reasonable suspicion of a motor vehicle safety infraction necessary for a valid investigatory stop.
We review that argument under the customary standard: we accept the motion judge's subsidiary findings of fact unless they are clearly erroneous; and we conduct an independent review of his ultimate findings and conclusions of law. See, e.g., Commonwealth v. Scott, 440 Mass. 642, 646 (2004); Commonwealth v. Colon, 449 Mass. 207, 214, cert. denied, 552 U.S. 1079 (2007). The credibility and weight of testimony remain the province of the motion judge directly observing the witnesses. See, e.g., Commonwealth v. Gentile, 437 Mass. 569, 573 (2002); Commonwealth v. Clark, 65 Mass. App. Ct. 39, 43 (2005).
It is settled that a police officer's reasonable suspicion of a civil motor vehicle infraction justifies an investigatory stop. As to traffic violations, see Commonwealth v. Bacon, 381 Mass. 642, 644 (1980), and cases cited. As to safety equipment violations, see especially Commonwealth v. Santana, 420 Mass. 205, 207 (1995) (operation of motor vehicle with broken tail light lens).
A corollary of this rule has developed. A police officer's objectively reasonable, but ultimately mistaken, suspicion of a civil motor vehicle safety infraction will nonetheless justify an investigatory stop of an automobile. See Commonwealth v. Deramo, 436 Mass. 40, 42-44 (2002); Commonwealth v. Wilkerson, 436 Mass. 137, 138-140 (2002); Commonwealth v. Garden, 451 Mass. 43, 45-46 (2008) (all instances in which police conducted motor vehicle stops upon the mistaken assumption that the unlicensed owners of the registered vehicles were driving them); Commonwealth v. Baez, 47 Mass. App. Ct. 115, 118 (1999) (police stop automobile upon the reasonable, but mistaken, suspicion that the darkness of its tinted windows exceeded the legal limit).
In this instance, the defendant points out that, under the statute invoked for the tail light infraction (G. L. c. 90, § 7), his rear stop or brake lights did compliantly 'show two red lights from behind' (see G. L. c. 90, § 7, as amended through St. 1963, § 409); and that the officer's view of a lateral slice of white light did not reveal a violation of the statutory standard. He proposes also that the officer could have observed the compliant operation of the tail light as he followed the defendant's car for a short distance.
The motion judge understood the contention. He acknowledged that the tail light may have been functioning properly. At the same time, with citation to the controlling cases, he concluded accurately, 'The issue before the court is not whether the defendant in fact violated the statute, but whether or not [the officer] had a reasonable suspicion that the defendant committed a motor vehicle infraction.' Under that standard, the officer was entitled to conduct the investigatory stop of the defendant's automobile. The resulting evidence of the OUI offense was therefore untainted and admissible.
The defendant emphasizes that in the present circumstances the officer should have appreciated the compliance of the tail light with the statute because he trailed the defendant's automobile for a short distance directly behind the vehicle. However, the Commonwealth points out that a regulation of the Registry of Motor Vehicles requires that the lenses on the lighting devices and reflectors required for a motor vehicle must 'be intact, clean, unobstructed, and free from cracks.' 540 Code. Mass. Regs. § 4.03(10)(d) (2008). Consequently, the crack along the edge of the tail light may have constituted an infraction even though the rearward projection of light retained a red color. The prohibition of cracked safety light lenses supports the objective reasonableness of the officer's suspicion.
The defendant has not challenged the credibility of the officer's testimony. If such a challenge were implicit, the motion judge expressly credited the testimony.
Massachusetts follows the 'authorization' test for motor vehicle stops by reason of civil safety infractions. If an apparent infraction objectively authorizes a stop, the police officer's ulterior suspicion or motivation does not invalidate it. Commonwealth v. Santana, 420 Mass. at 208209.
Judgment affirmed.
By the Court (Vuono, Sikora & Hanlon, JJ.),