Summary
In Commonwealth v. Manchester, 152 Mass., at page 242, this court said, "It must, we think, be considered as settled, that, if land on the coast be reclaimed from the sea, or if piers or wharves be extended into the sea, such land and structures are a part of the territory of the State whose shores they adjoin," citing cases.
Summary of this case from Commonwealth v. McHughOpinion
15-P-709
04-08-2016
COMMONWEALTH v. JOHN T. MANCHESTER, JR.
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
The defendant appeals from his conviction after a jury trial in District Court of operating under the influence of intoxicating liquor, fourth offense, contending, in a brief filed pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208 (1981), that his motion to suppress should have been allowed because the arresting officer exceeded the scope of a well-being check. We disagree and affirm.
The defendant waived his right to a jury trial with respect to the subsequent offense portion of his conviction.
The defendant does not appeal from any aspect of his trials.
Background. "When reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error. . . . Although we accord substantial deference to the judge's ultimate findings, we independently review the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Mateo-German, 453 Mass. 838, 841-842 (2009).
The motion judge found that on May 4, 2014, at about 2:50 A.M., Officer Anthony Flood, a twenty-seven-year veteran of the Plymouth police department, was dispatched to the parking lot at 17 South Russell Street in Plymouth for a report of a person asleep in a vehicle. That public lot is located at the top of a hill behind the old court house in the center of Plymouth. When Officer Flood arrived on the scene, he saw a white vehicle in the northeast corner of the lot with its headlights and brake lights illuminated.
Officer Flood parked his cruiser perpendicular to the white car but about five feet away from it so that his cruiser was not blocking it. Officer Flood could see a person (later identified as the defendant) in the driver's seat of the white vehicle. Approaching the car, Officer Flood noted that the engine was running. At the window he noted that the vehicle was in neutral and that the defendant was asleep with a piece of bread in his lap and his foot on the brake pedal.
Officer Flood was able to wake the defendant and engage him in conversation. Officer Flood asked the defendant if he was okay, and the defendant said that he was. Officer Flood then asked the defendant if he suffered from diabetes or other medical conditions, and the defendant said he did not.
Officer Flood then asked the defendant to turn off the car's engine. In an attempt to comply, the defendant began reaching around the interior of the vehicle -- the dashboard, console, door -- everywhere but where the ignition was actually located. He asked the officer, "Where is it?" The defendant also tried to hand the piece of bread from his lap to Officer Flood. At some point, the defendant's foot came off the brake pedal and the vehicle began to roll forward. Officer Flood opened the door, engaged the emergency brake, and shut off the engine.
The motion judge found that by this point in their interaction, Officer Flood had noted that the defendant's speech was thick and slurred, that he had glassy and bloodshot eyes, and that he emitted a strong odor of alcohol. After Officer Flood engaged the emergency brake and shut off the engine, he asked the defendant to step out of the vehicle.
Discussion. The defendant contends that Officer Flood exceeded the scope of a well-being check when he ordered the defendant to step out of his vehicle. We are satisfied that Officer Flood was justified under the community caretaking function in approaching the defendant's vehicle and interacting with the defendant and that, by the time he requested that the defendant exit his vehicle, Officer Flood's observations were sufficient to support a reasonable suspicion, if not probable cause, that the defendant was operating a motor vehicle under the influence of intoxicating liquor.
"If the community caretaking function . . . means anything, surely it allows a police officer to determine whether a driver is in such a condition that if he resumes operation of the vehicle, in which he is seated at a highway rest stop, he will pose . . . an extreme danger to himself and others." Commonwealth v. Murdough, 428 Mass. 760, 764 (1999). Here, as in Mateo-German, 453 Mass. at 842, "[i]t is not contested that the encounter began as an appropriate community caretaking one." See Murdough, 428 Mass. at 761, 763-764.
The defendant contends, however, that the well-being check was complete after Officer Flood engaged the emergency brake and turned off the engine and that no reasonable suspicion of criminal activity existed. First, the defendant has not established that requesting him to exit the vehicle exceeded the scope of the well-being check. See, e.g., Murdough, 428 Mass. at 763-764 (officers need not have reasonable suspicion to require driver in rest area to step out of vehicle in order to better assess whether he was in condition to resume driving). Moreover, even if we assume for the sake of argument that Officer Flood would have needed additional justification for this request beyond community caretaking, we conclude that Officer Flood had at least reasonable suspicion at the time he asked the defendant to exit the vehicle.
This represents a slight shift from the defendant's argument before the motion judge, now abandoned, that the encounter should have ended when the defendant told Officer Flood that he was okay. On appeal, the defendant does not claim that the officer's request that he shut off the engine exceeded the bounds of the community caretaking function.
"[I]n performing a community caretaking function, the reasonable steps taken by the police to protect an individual or the public may lead to the discovery of evidence of a crime." Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 53 (2014). See Commonwealth v. Knowles, 451 Mass. 91, 95 (2008). Here, the officer's observations in the course of performing his community caretaking function furnished ample basis for him to reasonably suspect that the defendant had been operating under the influence of alcohol prior to his request that the defendant exit the vehicle. Such observations justify an exit order for the purpose of performing field sobriety tests. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000). Cf. Mateo-German, 453 Mass. at 845-846 (officer's observation in the course of community caretaking ultimately gave rise to probable cause to search the disabled vehicle).
Specifically, by the time he asked the defendant to exit the vehicle, Officer Flood had already observed that the defendant had apparently fallen asleep behind the wheel of his car without turning off the engine or even shifting the car into park, such that, as Officer Flood discovered, the only thing preventing the car from rolling while the defendant was literally asleep at the wheel was the presence of the defendant's foot on the brake pedal while he slumbered. In addition, there was the curious additional detail that the defendant had nodded off without removing a piece of bread from his lap, which bread he later proffered to the officer when he could not locate the ignition. The defendant's inability to comply with the officer's request to shut off the car, and the inattention that led him to remove his foot from the brake pedal indicated impairment. That this impairment was likely caused by alcohol was supported by Officer Flood's observations that the defendant emitted a strong odor of alcohol, had glassy and bloodshot eyes, and was slurring his words. See Commonwealth v. Blais, 428 Mass. 294, 296 (1998); Eckert, 431 Mass. at 600.
In addition to Officer Flood's observation of indicia that the defendant was under the influence of alcohol, the officer would have also been warranted in concluding that the defendant was in fact "operating" his vehicle (even apart from the car's rolling when the defendant lifted his foot from the brake) where he was found sleeping in the driver's seat with the headlights on, the engine running, the transmission in neutral, and his foot on the brake pedal. See Eckert, 431 Mass. at 599-600; Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 650 (2011).
Where Officer Flood had at least reasonable suspicion to justify requesting that the defendant exit his vehicle to perform field sobriety tests, the request was constitutionally permissible regardless of whether it would have exceeded the scope of a well-being check under the community caretaking function, a point we need not reach. The defendant's motion to suppress was properly denied.
Judgment affirmed.
By the Court (Katzmann, Maldonado & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 8, 2016.