Opinion
No. 15–P–581.
07-07-2016
COMMONWEALTH v. Vong VANGSOVANG.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted, after a jury trial, of operating a motor vehicle while under the influence of alcohol. See G.L.c. 90, § 24(1)(a ) (1). On appeal, he argues that his motion to suppress evidence obtained when he was stopped at a sobriety checkpoint should have been allowed because of various irregularities in how the checkpoint was conducted. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ “ Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). We affirm.
“It is beyond dispute ... that the stopping of [an] automobile at a roadblock for a driver sobriety check is a ‘seizure,’ under both the Fourth and Fourteenth Amendments to the United States Constitution, and art. 14 of the Massachusetts Declaration of Rights.” Commonwealth v. Anderson, 406 Mass. 343, 345 (1989). See Commonwealth v. Shields, 402 Mass. 162, 164 (1988). “In order to pass muster under both constitutional provisions, such a seizure must be ‘reasonable.’ “ Anderson, supra at 346, quoting from Shields, supra. “[F]or sobriety checkpoints to be reasonable under the Fourth Amendment and art. 14, ‘the selection of motor vehicles to be stopped must not be arbitrary, safety must be assured, motorists' inconvenience must be minimized, and assurance must be given that the procedure is being conducted pursuant to a plan devised by law enforcement supervisory personnel.’ “ Commonwealth v. Murphy, 454 Mass. 318, 323 (2009), quoting from Commonwealth v. McGeoghegan, 389 Mass. 137, 143 (1983).
Here, the defendant argues that various irregularities in the procedure by which the checkpoint was conducted rendered it unlawful. First, he argues that the police arbitrarily waved vehicles through the checkpoint. The checkpoint's operational plan required the police to stop every vehicle that passed through the checkpoint, with three exceptions: (1) when traffic is backed up to the safety officer, (2) when a commercial vehicle with a gross vehicular weight greater than 10,000 pounds causes a sight obstruction, and (3) when any vehicle transporting flammable liquids, hazardous materials, or explosives approached the checkpoint. The judge credited testimony that two tractor-trailer trucks and one passenger vehicle were among the vehicles waved through. He also credited the testimony of two officers who stated that only vehicles falling within these three exceptions were waved through. The fact that one passenger vehicle was waved through is not to the contrary, because there was evidence that a car would be allowed to proceed if necessary to permit a large commercial vehicle (a recognized exception) to pass safely.
As the motion judge found, the operational plan did not require that police keep a record of why each vehicle was waved through.
We accept this and all other findings of fact made by the motion judge, as none was shown to be clearly erroneous.
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The defendant argues that the police failed to keep accurate statistics, that one officer was not properly briefed regarding the checkpoint's procedures, that officers were not properly reassigned to various duties within the checkpoint, and that the checkpoint began one minute early—all in contravention of the operational plan. “Adherence to a neutrally devised, preplanned blueprint in order to eliminate arbitrariness and discretion has been this court's principal prerequisite for abandoning the requirement of individualized suspicion in roadblock stops.” Anderson, supra at 349. “This requirement is meant not only to assure the public's safety and to minimize the intimidation and surprise a driver may feel upon being asked to stop for no suspicious behavior on his or her part. More importantly, it also aims to remove the invasion of the driver's reasonable expectation of privacy from ‘the discretion of the official in the field.’ “ Id. at 347, quoting from Shields, supra. “Indeed, the court has insisted on strict adherence to the provisions of the predetermined plan ‘in order that the possibility of arbitrariness and discretion of the officers in the field be eliminated.’ “ Commonwealth v. Aivano, 81 Mass.App.Ct. 247, 249 (2012), quoting from Anderson, supra at 350.
The first three of the defendant's contentions are defeated by the judge's findings of fact. The motion judge found that, but for a computer-generated error that occurred when Lieutenant Simon completed an electronic data sheet, the police kept statistics according to the operational plan. The judge also found that Lieutenant Simon reassigned officers according to powers afforded her by the operational plan. The judge further found that Officer McCabe certified that he had received and reviewed the written plan and duty assignment. None of these findings is clearly erroneous, and they amply support the judge's conclusion that the police did not deviate from the operational plan in these respects.
By contrast, the defendant's fourth contention is supported by the judge's finding that the checkpoint began at midnight, one minute before the time specified in the plan. However, there was no evidence that the defendant or any other vehicle was stopped during that minute. Indeed, Lieutenant Simon testified that, although the officers began walking to their vehicles at midnight, they did not begin interacting with motorists until 12:01 A.M. The one-minute early start did not in any meaningful way affect the conduct or validity of the checkpoint, nor did it rise to the level of a deviation of constitutional significance. Cf. Anderson, 405 Mass. at 350–351 (finding unconstitutional seizure of motorist at checkpoint fifteen minutes after checkpoint scheduled to end).
Finally, the defendant argues that the police failed to minimize inconvenience to motorists because a safety officer briefly detained vehicles before directing them to the greeters. The motion judge found that the safety officer's “primary responsibility was to stop vehicles and safely direct the flow of traffic into the greeters. He would stop traffic, wait for the availability of the greeters and then send vehicles to the greeters.” There was no evidence that this practice increased motorists' inconvenience in any way, let alone to a constitutionally cognizable degree.
For the reasons set out above, we find no error in the judge's denial of the defendant's motion to suppress and affirm the judgment.
So ordered.