Opinion
No. 98-141
July 14, 1998
FINDINGS, RULINGS AND ORDER ON MOTION TO SUPPRESS
In this case, in which defendant is charged with illegal drug possession, he contends that he was illegally stopped when he was a pedestrian on November 19, 1997, in Lowell, so that the fruits of his illegal stop, i.e., his subsequent search and his arrest, should be suppressed.
The Court finds, based upon all the credible evidence, that Officer Finn of the Lowell police department, at about 6:50 p.m., saw defendant walking out of a wooded area from whence he staggered onto the street, and proceeded to walk, in an unsteady manner, down the middle of the street. The officer together, with another officer, followed him in their cruiser for 30 to 40 yards. They then activated the "PA system" on their cruiser, and instructed him to move to the side of the road and put his hands in the air. As he had one hand inside his jacket, the officers were concerned for their safety. As a result of the officers' instructions, defendant put one hand in the air but left the other hand in his jacket, and continued to stagger down the street. The officers then observed him put one hand to his mouth and cough, and with the other hand, throw something away. The officers then exited their vehicle, pat-frisked defendant (finding nothing on his person) and retrieved a clear plastic bag containing what appeared to be heroin and crack cocaine, which he had thrown to the side of the street. He was then arrested for drug possession.
The Court concludes that, upon observing defendant walking down the middle of a public way in an apparently inebriated condition, the police were justified in ordering him to move out of the road, and, when he did not do so, in stopping him. See Commonwealth v. St. Hillaire, 43 Mass. App. Ct. 743 (1997) (police had probable cause to take a person into custody when they determined, after a car accident, that he was intoxicated, needed medical attention, and presented a danger to himself). In view of the fact that defendant was also seen with one hand in his jacket, which he failed to remove when instructed to do so, the officers had a reasonable apprehension for their own safety, which justified their frisking him. Their subsequent observation of defendant taking something out of his mouth, and at the same time throwing another object away, which, when retrieved, appeared to be a plastic bag containing drugs, justified his arrest without a warrant and the seizure of the contraband which he had just abandoned. See Commonwealth v. Smigliano, 427 Mass. 490 (1998).
Although public drunkenness is no longer a crime, the police are empowered to take into protective custody an individual whom they believe may be intoxicated, and to take reasonable steps to ascertain whether a person is incapacitated by intoxication. G.L.c. 111B, § 8.
ORDER
Accordingly, the defendant's motion to suppress is DENIED.
______________________________ Thayer Fremont-Smith Justice of the Superior Court
Dated: July 14, 1998