Vanhouton v. Com.

• Decision Date: 03 March 1997
• Citation: 676 N.E.2d 460,424 Mass. 327
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Scott VANHOUTON v. COMMONWEALTH (and a consolidated case). COMMONWEALTH v. Scott VANHOUTON.

Page 460

676 N.E.2d 460

424 Mass. 327

Scott VANHOUTON v. COMMONWEALTH (and a consolidated case).

COMMONWEALTH v. Scott VANHOUTON.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 7, 1997.

Decided March 3, 1997.

James B. Krasnoo, Andover, for the defendant.

S. Jane Haggerty, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR, GREANEY, FRIED and MARSHALL, JJ.

GREANEY, Justice.

The defendant, Scott Vanhouton, is charged in the Superior Court with operating a motor vehicle while under the influence of intoxicating liquor, fifth offense. G.L. c. 90, § 24(1)(a )(1). He filed a motion to dismiss the indictments on the ground of double jeopardy, which was denied. The defendant thereafter filed a motion to suppress the results of field sobriety tests that had been administered to him. ¹ He argued, among other issues, that requiring him to take the tests violated his privileges against self-incrimination as secured by the Fifth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution. ² An evidentiary hearing was held on the motion to suppress, after which the judge made findings of fact and rulings of law. The judge denied the motion to suppress with respect to evidence of the defendant's performance on the heel-to-toe and the one-legged standing tests, but he allowed the motion with respect to evidence of the defendant's performance on the alphabet recitation test. A single justice of this court granted the applications of the defendant and the Commonwealth to pursue interlocutory appeals from the orders on the motion to suppress, see Mass. R.Crim. P. 15(b)(2), 378 Mass. 882 (1979); G.L. c. 278, § 28E, and those appeals were consolidated with the defendant's appeal from the denial of his motion to dismiss. We conclude that the motion to dismiss was properly denied. We also conclude that the judge correctly denied the motion to suppress with respect to the evidence of the heel-to-toe and one-legged standing tests, but that he erred in allowing that motion with respect to evidence of the alphabet recitation test.

The facts found by the judge on the motion to suppress may be summarized as follows. On the night of September 21, 1994, Officer Daniel McNeil of the Salisbury police department was on duty in a patrol car in Salisbury Center. The area was well lit. At about 11:50 P.M., Officer McNeil observed a white automobile, which was being driven erratically, make a left turn in a jerking manner. The officer followed the automobile for about 150 yards and observed it drift left to right in its own travel lane. Officer McNeil stopped the automobile and asked the driver, who was identified as the defendant, to show his license and registration. The defendant produced a valid driver's license, but could not locate his registration, which was in his lap. The officer detected a strong odor of alcohol and also noticed that the defendant's eyes were bloodshot.

After having him step out of the car, Officer McNeil asked the defendant, who, according to the findings, "appeared on the surface to be in good shape," to perform field sobriety tests. The defendant was not advised that he could refuse to take the tests. The defendant was not able to perform the heel-to-toe test, staggering to the right on the first step. ³ The defendant then failed the one-legged standing test. ⁴ Finally, when asked to recite the alphabet, the defendant could not complete the test, and his attempt to do so was marked by slurred speech. ⁵ Officer McNeil, who had watched the defendant's efforts from about three to four feet away, then placed the defendant under arrest for operating a motor vehicle while under the influence of intoxicating liquor.

The judge extensively discussed his view of the law in connection with the rulings on the motion to suppress. We shall refer to the pertinent rulings as we discuss the issues raised on appeal. We accept the judge's findings of fact as supported by the evidence, but we make our own independent determinations in the correctness of his application of constitutional principles to the facts. See Commonwealth v. Cunningham, 405 Mass. 646, 655, 543 N.E.2d 12 (1989); Commonwealth v. Tavares, 385 Mass. 140, 145, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982), and cases cited.

1. According to his motion to dismiss, after his arrest the defendant was taken to the police station, where he refused to take a breathalyzer test. The police seized the defendant's driver's license and issued him a temporary driving permit, as required by G.L. c. 90, § 24(1) (f )(1)(i)-(iii), as appearing in St.1994, c. 25, § 5. The defendant's motion to dismiss argued that the administrative seizure of his driver's license constituted a punishment, and that therefore his subsequent criminal prosecution for operating a motor vehicle while under the influence of intoxicating liquor gave rise to the protections against double jeopardy contained in the Fifth Amendment to the United States Constitution and Massachusetts common law. The defendant's argument is entirely foreclosed by our decisions in Leduc v. Commonwealth, 421 Mass. 433, 657 N.E.2d 755 (1995) cert. denied, --- U.S. ----, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996), and Luk v. Commonwealth, 421 Mass. 415, 658 N.E.2d 664 (1995). The motion to dismiss was correctly denied.

2. We turn to the issues pertaining to the motion to suppress. The judge ruled that the defendant was in custody at the time the field sobriety tests were given and, citing Rhode Island v. Innis, 446 U.S. 291, 301-302, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980), that, in the judge's words, the defendant "was being 'interrogated' when he was asked to perform the field sobriety tests which [Officer McNeil] certainly knew were 'reasonably likely to elicit an incriminatory response.' " Based on these conclusions, the judge ruled, relying on Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982), that evidence of the defendant's performance in the heel-to-toe and leg-standing tests was admissible because these tests involved real or physical evidence that did not implicate either the Fifth Amendment or art. 12. However, relying principally on Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), the judge ruled that evidence of the results of the alphabet recitation test was testimonial, implicated both privileges, and had to be suppressed.

The defendant argues that the judge's ruling that he was in custody should be upheld and that, because he was in custody, Officer McNeil was required to furnish him with the warnings required by Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), before any field sobriety tests were administered. ⁶ The defendant argues further that all the tests were testimonial and, as a consequence, the results of his performance on the heel-to-toe and leg-standing tests should be suppressed. The Commonwealth argues that the judge's order with respect to the result of the heel-to-toe and leg-standing tests should be affirmed based on the holdings and reasoning of Commonwealth v. Brennan, supra, and that the order suppressing the results of the alphabet recitation test should be reversed because the defendant was not compelled to take the test, and the test does not involve testimonial evidence.

(a) The judge's ruling that the defendant was in custody during the investigation for purposes of the Fifth Amendment is wrong. A defendant's custody and the resulting need for Miranda warnings is a question solely of Federal constitutional law. The United States Supreme Court has expressly held that a motorist who is temporarily detained after being stopped on suspicion of operating a motor vehicle while under the influence of intoxicating liquor is not held in custody, and, as a result, the investigating police officer is not required to furnish Miranda warnings to the motorist before administering field sobriety tests. The Court first reached this conclusion in Berkemer v. McCarty, 468 U.S. 420, 438-440, 104 S.Ct. 3138, 3149-3150, 82 L.Ed.2d 317 (1984), and reiterated the holding of the Berkemer decision in Pennsylvania v. Bruder, 488 U.S. 9, 11, 109 S.Ct. 205, 207, 102 L.Ed.2d 172 (1988), a case with facts virtually identical to the facts of this case. ⁷ The Appeals Court has consistently applied the holdings of these two Federal decisions in circumstances similar to this case, and has rejected arguments that Miranda warnings were necessary on the ground that the detained motorist was not in custody. See Commonwealth v. D'Agostino, 421 Mass. 281, 657 N.E.2d 217 (1995); Commonwealth v. Smith, 35 Mass.App.Ct. 655, 657-658, 624 N.E.2d 604 (1993); Commonwealth v. Ayre, 31 Mass.App.Ct. 17, 20, 574 N.E.2d 415 (1991); Commonwealth v. McNelley, 28 Mass.App.Ct. 985, 986, 554 N.E.2d 37 (1990). There is nothing in the facts found by the judge that takes the case outside of a routine stop and investigation for suspected drunk driving, with the result that the Berkemer and Bruder decisions apply here.

It follows from what has been said that the defendant's argument that Miranda warnings were required must fail. ⁸ It also follows that Officer McNeil's request that the defendant perform field sobriety tests did not involve, with respect to any of the tests, compulsion sufficient to trigger the protection of the Fifth Amendment. ⁹ See South Dakota v. Neville, 459 U.S. 553, 562-563, 103 S.Ct. 916, 922, 74 L.Ed.2d 748 (1983); McAvoy v. State, 314 Md. 509, 514-515, 551 A.2d 875 (1989); State v. Bowers, 250 Neb. 151, 163, 548 N.W.2d 725 (1996). See also Stone v. Huntsville, 656 So.2d 404, 411 (Ala.Crim.App.1994); State v. Pilik, 129 Idaho, 50, 53, 921 P.2d 750 (Ct.App.1996); Commonwealth v. Toanone, 381 Pa.Super. 336, 345, 553 A.2d 998 (1989); State v. Strausberg, 895 P.2d 831, 834-835 (Ut...