Commonwealth v. Larose, SJC-12610

• Decision Date: 10 October 2019
• Docket Number: SJC-12610
• Parties: COMMONWEALTH v. Zachariah J. LAROSE.
• Court: Appeals Court of Massachusetts

483 Mass. 323
135 N.E.3d 201

COMMONWEALTH
v.
Zachariah J. LAROSE.

SJC-12610

Appeals Court of Massachusetts, Hampshire..

Argued January 10, 2019
Decided October 10, 2019

David Rassoul Rangaviz, Committee for Public Counsel Services, for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

Michael A. DelSignore, Stoughton, & Julie Gaudreau, for National College for DUI Defense, Inc., amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

CYPHER, J.

This case is before us on further appellate review from an unpublished memorandum and order of the Appeals Court pursuant to its rule 1:28, see Commonwealth v. Larose, 93 Mass. App. Ct. 1113, 104 N.E.3d 682 (2018), concerning whether a police officer's stop of the defendant's motor vehicle for failing to drive entirely within a marked traffic lane was reasonable, and therefore valid, under art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution. As a result of observations and further inquiry made by the officer during the stop, the defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of G. L. c. 90, § 24, and a marked lanes violation in accordance with G. L. c. 89, § 4A ( § 4A ), a civil motor vehicle infraction punishable by a fine of not more than one hundred dollars.¹

135 N.E.3d 204

A Superior Court judge allowed the defendant's motion to suppress "all evidence related to the illegal seizure" on the ground that the defendant had not violated § 4A and, as a result, the stop of his motor vehicle was not reasonable. A single justice of this court granted the Commonwealth leave to appeal from the allowance of the motion and reported the matter to the Appeals Court, which reversed.

We granted the defendant's request for further appellate review to consider whether the defendant violated § 4A when he crossed the right-side fog line² one time for two or three seconds. We conclude that in this case, where the circumstances suggest that the defendant both failed to operate his motor vehicle entirely within his lane of travel and moved from his lane of travel without first ascertaining the safety of that movement, the defendant violated § 4A and the ensuing traffic stop was reasonable. Accordingly, we vacate the judge's order.³

Background. We recount the facts as found by the motion judge, supplemented by uncontroverted evidence from the suppression hearing. Commonwealth v. Alexis, 481 Mass. 91, 93, 112 N.E.3d 796 (2018).

A police officer stopped the defendant's motor vehicle in the early morning hours on Route 202, a two-lane highway with a single lane of travel in each direction, after observing the defendant, who was traveling in the northbound travel lane directly in front of the officer, cross the right-side fog line "one time for two to three seconds." A video recording taken from the officer's dashboard camera and admitted in evidence showed the right-side tires of the defendant's motor vehicle cross over the right-side fog line, straddle the northbound travel lane and the narrow road shoulder for a few seconds, and return to entirely within the bounds of the northbound travel lane.⁴

This stop led to the defendant's arrest for operating a motor vehicle while under the influence of intoxicating liquor. Before trial, the defendant moved to suppress certain evidence gathered as a result of the stop, arguing that the stop was conducted "without probable cause" and "without there having been a traffic violation and without reasonable suspicion of criminal activity."⁵ Section 4A provides in pertinent part:

"When any way has been divided into lanes, the driver of a vehicle shall so drive that the vehicle shall be entirely within a single lane, and he shall not move from the lane in which he is driving

135 N.E.3d 205

until he has first ascertained if such movement can be made with safety."

The motion judge concluded that "crossing a fog line one time for a few seconds does not constitute a marked lane violation" and that, therefore, the initial stop of the defendant's motor vehicle was not lawful. In reaching that conclusion, he reasoned that a "fog line does not serve to divide lanes" and, "even if the fog line is a marked lane for the purposes of the statute, there is no indication ... that the defendant's crossing the fog line was unsafe."

Discussion. In reviewing a ruling on a motion to suppress, "we adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found" (citation omitted). Commonwealth v. Buckley, 478 Mass. 861, 864, 90 N.E.3d 767 (2018).

A police stop of a moving automobile constitutes a seizure and, therefore, must be reasonable in order to comply with the Fourth Amendment and with art. 14. See Buckley, 478 Mass. at 865, 90 N.E.3d 767 ; Commonwealth v. Rodriguez, 472 Mass. 767, 773, 37 N.E.3d 611 (2015). We consistently have held that a stop is reasonable, and therefore constitutional, where an officer has observed a traffic infraction and, as a result, has actual cause to believe that the driver violated an applicable motor vehicle law.⁶ See Buckley, supra at 868, 90 N.E.3d 767 ; Commonwealth v. Santana, 420 Mass. 205, 208, 649 N.E.2d 717 (1995) (reasonable for police to stop driver who violated motor vehicle law); Commonwealth v. Bacon, 381 Mass. 642, 644, 411 N.E.2d 772 (1980) (police warranted

135 N.E.3d 206

in stopping vehicle where police observed traffic violation).

We have applied this test, often referred to as the authorization test, without regard for the gravity or magnitude of the perceived violation.⁷ See, e.g., Commonwealth v. Cordero, 477 Mass. 237, 242, 74 N.E.3d 1282 (2017) (impermissible degree of window tint, and broken tail and brake lights); Commonwealth v. Amado, 474 Mass. 147, 151, 48 N.E.3d 414 (2016) (unlit registration plate); Commonwealth v. Feyenord, 445 Mass. 72, 75, 833 N.E.2d 590 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1369, 164 L.Ed.2d 77 (2006) (inoperable headlight in daytime); Commonwealth v. Torres, 433 Mass. 669, 673, 745 N.E.2d 945 (2001) (failure to stop at stop sign); Commonwealth v. Damon, 82 Mass. App. Ct. 164, 168, 971 N.E.2d 809 (2012) (failure to signal turn). And we have maintained this bright-line test despite numerous challenges. See Buckley, 478 Mass. at 866-868, 90 N.E.3d 767 (rejecting standard that would require extended examination of police's underlying motives for conducting stop in favor of authorization test, which avoids "often-speculative probing of the police's ‘true’ motives, while at the same time providing an administrable rule" that clarifies exactly when police may conduct traffic stop); Santana, 420 Mass. at 208-209, 649 N.E.2d 717 (rejecting "reasonable police officer" test and articulating authorization test).

Permitting police to conduct these types of stops promotes compliance with our motor vehicle laws and " ‘serves the significant government interest’ of ensuring public safety on our roadways." Buckley, 478 Mass. at 869, 90 N.E.3d 767. See Rodriguez, 472 Mass. at 776–777, 37 N.E.3d 611. As we more fully explained in Rodriguez:

"[M]any of our traffic violation statutes regulate moving cars and relate directly to the promotion of public safety; even those laws that have to do with maintaining a vehicle's equipment in accordance with certain standards may also be safety-related.... Permitting stops based on reasonable suspicion or probable cause that these laws may have been violated gives police the ability to immediately address potential safety hazards on the road. Thus, although a vehicle stop does represent a significant intrusion into an individual's privacy, the government interest in allowing such stops for the purpose of promoting compliance with our automobile laws is clear and compelling."

Id. The marked lanes statute is no exception. The salient issue before us then is whether the defendant, in briefly crossing the right-side fog line, violated § 4A.

1. Violation of § 4A. We never have addressed explicitly whether crossing a fog line is a marked lanes violation, although we once noted in dicta that a driver whose motor vehicle had swerved over the fog line, back into the travel lane, over the double yellow lines separating the travel lanes, and back over the fog line had committed "three marked lanes violations." Commonwealth v. Jewett, 471 Mass. 624, 625, 31 N.E.3d 1079 (2015). See United States v. Lawrence, 675 Fed. Appx. 1, 5 (1st Cir. 2017) (noting lack of any definitive commentary on issue by Massachusetts courts); United States v. Herrera, U.S. Dist. Ct., No. 17-cr-10112-ADB, 2018 WL 1020112 (D. Mass. Feb. 22, 2018) (recognizing uncertainty regarding application of § 4A ).

135 N.E.3d 207

We begin with the language of the statute.⁸ Section 4A provides in pertinent part:

"When any way has been divided into lanes, the driver of a vehicle shall so drive that the vehicle shall be entirely within a single lane, and he shall

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