Com. v. Blais

• Decision Date: 03 November 1998
• Citation: 701 N.E.2d 314,428 Mass. 294
• Parties: COMMONWEALTH v. Richard BLAIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 314

701 N.E.2d 314

428 Mass. 294

COMMONWEALTH v. Richard BLAIS.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 2, 1998.

Decided Nov. 3, 1998.

Aline G. Carriere, Boston, and James F. Rennick, Salem, for defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

FRIED, Justice.

Having denied the defendant's motion to suppress the results of standard roadside field sobriety tests, a District Court judge, in substance, reported the following questions to the Appeals Court pursuant to Mass. R.Crim. P. 34, 378 Mass. 905 (1979):(1) whether conducting such tests constitutes a search that may be undertaken only where there is probable cause to arrest; and (2) whether a person may be taken to have consented to such tests only if first specifically advised that he has a right to refuse to perform them. ¹ We transferred the case to this court on our own motion. We affirm the denial of the motion to suppress and answer both questions in the negative.

I

A State trooper saw the defendant's automobile traveling above the speed limit with only one headlight illuminated. The automobile stopped at a restaurant. The officer pulled in behind the automobile and approached the defendant, who was the operator and sole occupant. The officer told the operator that he had observed him speeding and requested his license and registration. The officer noticed a strong odor of alcohol and judged that the defendant's eyes were "red and glassy" and that his speech was slurred. The officer asked whether the defendant had been drinking, and he answered that he had had "a couple of beers." The officer asked the defendant to step out of the car and perform four standard field sobriety tests: the walk and turn test, the one leg stand test, the alphabet recitation test, and the horizontal gaze nystagmus test. See Commonwealth v. Sands, 424 Mass. 184, 186-187, 675 N.E.2d 370 (1997) (describing horizontal gaze nystagmus test). On the basis of the defendant's performance the officer concluded that the defendant had been operating the automobile while under the influence of alcohol and arrested him. The District Court judge found that the officer did not suspect that the defendant was drunk at the time he had observed him speeding and had not made up his mind to arrest the defendant until after the performance of the tests. He also found that the officer had "addressed the defendant in a conversational tone and made no overt gestures or threats concerning [the defendant's] decision to take the tests." The judge found that the time required for the administration of the tests was from three to five minutes.

Invoking both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the defendant moved to suppress the results of the field sobriety tests. He claimed that the tests constituted a search and seizure that could validly be performed only if there was probable cause to arrest him, and that the defendant cannot be taken to have consented to take these tests unless he had been specifically advised that he could refuse to take them. In a carefully reasoned decision which canvassed the law in this and other jurisdictions, the judge disagreed with both contentions and denied the defendant's motion. Noting the strong interest in a definitive resolution of these questions and the existence of several trial court decisions reaching a different conclusion, the judge reported the questions of the validity of the search and of the consent to the Appeals Court in accordance with rule 34. We transferred the case here on our own motion.

II

Although the reported questions arise frequently and require answers, we do not accept the premise that led the judge to ask them. Taking the facts as he found them, we conclude that the officer had probable cause to arrest the defendant for the offense of operating a vehicle while under the influence of alcohol. The judge found that, having properly stopped the defendant to request his license and registration, the officer observed that the defendant's speech was slurred, his eyes red and glassy, and he detected a strong odor of alcohol. Because the defendant was the only person in the automobile, that was enough to give the officer probable cause to arrest. See Commonwealth v. McGrail, 419 Mass. 774, 776, 647 N.E.2d 712 (1995). The judge found that the officer did not think at that time that he did have probable cause but only a reasonable suspicion, and that he exercised his authority to administer the sobriety tests as an adjunct to the power to stop a person briefly on that basis. The officer's actual belief as to the legal basis for his authority, however, is irrelevant, so long as the circumstances justified the action he took. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) ("the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action"); Commonwealth v. Smigliano, 427 Mass. 490, 493, 694 N.E.2d 341 (1998).

A

We are asked whether a stop under the authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is sufficient to justify the administration of the roadside sobriety tests. We agree that requiring a person to perform the tests constitutes a search or seizure and therefore is subject to the strictures of the Fourth Amendment and art. 14.

The defendant contends that only probable cause, not reasonable suspicion, justifies such a search and supports this contention by pointing out that the searches generally authorized in conjunction with a Terry-type stop have been justified by the need to assure the safety of the inquiring officer. The sobriety tests, defendant maintains, are not like the standard "pat down search" but rather are a search for evidence, such as is only authorized incident to an arrest.

The dichotomy the defendant constructs is too rigid. As the Supreme Court has many times held "the 'touchstone of the Fourth Amendment is reasonableness.' ... Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances. In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry." Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). The reasonableness of a particular search is a function of the degree and kind of the intrusion and the urgency of the occasion. See Commonwealth v. Williams, 422 Mass. 111, 661 N.E.2d 617 (1996); Commonwealth v. Willis, 415 Mass. 814, 819-820, 616 N.E.2d 62 (1993); Commonwealth v. Mantinez, 44 Mass.App.Ct. 513, 516, 692 N.E.2d 92 (1998). We have certainly allowed an officer who detains a person on reasonable suspicion to inquire into and to hold that person briefly while his identity is checked, Commonwealth v. Salerno, 356 Mass. 642, 646-647, 255 N.E.2d 318 (1970), and even to transport a defendant to witnesses for identification purposes, Commonwealth v. Barros, 425 Mass. 572, 585, 682 N.E.2d 849 (1997) (defendants transported short distance and detained for fifteen minutes prior to being identified), although such actions are not taken to assure the officer's immediate safety. Moreover, there is indeed a significant safety concern at stake here, although it is not the same one as where the officer frisks the detained person for weapons. A drunk driver let loose on the highways is a deadly menace, not only to the officer, but also to anyone sharing the highways with him. The Terry decision explicitly recognized that it is not only the officer's concern for his own safety, but for that of others as well, that may form the basis for a reasonable search. Terry v. Ohio, supra at 24, 88 S.Ct. 1868 (extolling "the need for law enforcement officers to protect themselves and other prospective victims of violence ... where they may lack probable cause for an arrest" but where individual being investigated is "presently dangerous to the officer or to others " [emphasis added] ). Accordingly, it is appropriate for an officer with reasonable suspicion that a person is operating a vehicle while under the influence of drugs or alcohol to take the brief, scarcely burdensome steps involved in administering these tests in order to assure himself that he is not turning loose a drunk driver on the traveling public. See Commonwealth v. Shields, 402 Mass. 162, 167 n. 3, 521 N.E.2d 987 (1988), quoting South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (noting strong State interest in eliminating "[t]he carnage caused by drunk drivers"). As the judge pointed out, this conclusion accords with the vast majority of jurisdictions to have considered the question. ²

B

A search conducted with the consent of its subject is free of the strictures of the Fourth Amendment and art. 14. See, e.g., Commonwealth v. Sanna, 424 Mass. 92, 96, 674 N.E.2d 1067 (1997), quoting Commonwealth v. Voisine, 414 Mass. 772, 783, 610 N.E.2d 926 (1993), and Commonwealth v. Derosia, 402 Mass. 284, 286, 522 N.E.2d 408, cert. denied, 488 U.S. 980, 109 S.Ct. 528, 102 L.Ed.2d 560 (1988). The judge asks whether, in obtaining a person's consent to perform the tests, an officer must advise him that he is free to refuse. On the general question whether a consent requires such a Miranda-like warning in order to count as valid for purposes of the Fourth Amendment, the Supreme Court has spoken with unmistakable clarity, most recently with no dissent...