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SJC-12202

               COMMONWEALTH   vs.   RICHARD R. SANBORN.



        Worcester.      January 6, 2017. - June 29, 2017.

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


Abuse Prevention. Constitutional Law, Investigatory stop.     Due
     Process of Law, Abuse prevention. Practice, Civil,
     Service. Threshold Police Inquiry.



     Complaint received and sworn to in the Fitchburg Division
of the District Court Department on May 18, 2015.

     A pretrial motion to suppress evidence was heard by
Christopher P. LoConto, J., and a question of law was reported
by him to the Appeals Court.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.
     Merritt Schnipper (Robert M. Cassesso, Jr., also present)
for the defendant.


    LOWY, J.    The question before us was reported by a judge in

the District Court:   "Whether G. L. c. 209A authorizes the
                                                                        2


police to effectuate a motor vehicle stop to serve a civil abuse

prevention order?"     We answer the question in the negative.     We

conclude that G. L. c. 209A requires law enforcement to take

reasonable measures to serve abuse prevention orders.     In order

for the service of the orders to be reasonable, the manner of

service must comply with the terms of the Fourth Amendment to

the United States Constitution and art. 14 of the Massachusetts

Declaration of Rights.

     Background.     At a hearing regarding a motion to suppress

evidence obtained during a motor vehicle stop, the motion judge

found the following facts.     On May 16, 2015, a Lunenberg police

sergeant was parked outside a local bar.     In the course of

randomly checking the registration status and owner information

of vehicles parked outside the bar, he inquired about a license

plate number registered to Richard Sanborn, the defendant.       The

sergeant recalled that a civil abuse restraining order issued

pursuant to G. L. c. 209A had not yet been served on the

defendant.   Another officer from the Lunenberg police department

delivered the restraining order to the sergeant.    Subsequently

the defendant left the bar, entered his vehicle, and drove away.1


     1
       At oral argument, the Commonwealth argued that the
sergeant was across the street from the bar to receive delivery
of the restraining order when he saw the defendant driving away
from the bar. The sergeant testified that he was not sure when
he received the order but that, as he drove across the street to
meet the officer bringing the restraining order, the sergeant
                                                                    3


The sergeant followed the defendant and eventually stopped his

vehicle.   Based on the sergeant's observations of the defendant

after the stop, the defendant was placed under arrest for

operating while under the influence of liquor.

    The defendant moved to suppress evidence relating to, and

discovered as a result of, the stop, arguing that his Fourth

Amendment and art. 14 rights had been violated.   At the hearing

on the defendant's motion, the sergeant testified that he

stopped the defendant after observing multiple lane violations.

The motion judge discredited that testimony, however, and found

that the purpose of the stop was to serve the abuse prevention

order.   The judge granted the defendant's motion and reported

the question above to the Appeals Court pursuant to Mass. R.

Crim. P. 34, as amended, 442 Mass. 1501 (2004).    We transferred

the case to this court on our own motion.

    Discussion.     General Laws c. 209A serves a critical

government interest in the "[p]reservation of the fundamental

human right to be protected from the devastating impact of

family violence."    Mitchell v. Mitchell, 62 Mass. App. Ct. 769,

772-773 (2005), quoting Champagne v. Champagne, 429 Mass. 324,


observed the defendant driving out of the bar's parking lot.
However, the judge's findings reflect that the sergeant received
the order and that the defendant left "[s]ubsequently." See
Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004) (absent clear
error, appellate court accepts factual findings of judge ruling
on motion to suppress). Resolution of this potential factual
discrepancy is not material to our holding in this case.
                                                                    4


327 (1999).   Accordingly, G. L. c. 209A, § 7, requires law

enforcement officers to "use every reasonable means to enforce

. . . abuse prevention orders."     Reasonable means to enforce

abuse prevention orders logically include law enforcement

officers' ability to utilize reasonable means to serve them.      We

therefore interpret G. L. c. 209A, § 7, to require law

enforcement to use "every reasonable means" to serve abuse

prevention orders.   In order for a stop to constitute reasonable

means, however, the stop must comply with the requirements of

the Fourth Amendment and art. 14.     See Commonwealth v.

Rodriguez, 472 Mass. 767, 773 (2015) ("police stop of a moving

automobile constitutes a seizure, and therefore, any such stop,

whatever its purpose, must comply with the Fourth Amendment

. . . and with art. 14").

     A search or seizure conducted without a warrant is

presumptively unreasonable.    Brigham City v. Stuart, 547 U.S.

398, 403 (2006).   See Rodriguez, 472 Mass. at 773-774.

Warrantless seizures may be reasonable, however, if the

circumstances of the search fall within an established exception

to the warrant requirement.2   See, e.g., Commonwealth v. Peters,


     2
       The Commonwealth does not argue that the facts of this
case fit within any of the established exceptions to the warrant
requirement. Relying on Commonwealth v. Rodriguez, 472 Mass.
767, 776 (2015), the Commonwealth contends that we should
balance the intrusion into the defendant's privacy against the
governmental interest in preventing domestic abuse and resolve
                                                                    5


453 Mass. 818, 823 (2009) (warrantless home entry justified

based on objectively reasonable belief in emergency);

Commonwealth v. Motta, 424 Mass. 117, 123-124 (1997) (law

enforcement may stop motor vehicle in public place when law

enforcement has probable cause that vehicle contains

contraband); Commonwealth v. Bacon, 381 Mass. 642, 643-644

(1980) (motor vehicle stop reasonable where police have

reasonable, articulable suspicion of crime or of civil traffic

violation).   Cf. Rodriguez, supra at 777-778 (motor vehicle stop

unreasonable when based on reasonable suspicion of civil

violation unrelated to traffic violation).

     We may not read G. L. c. 209A to circumvent the

constitutional protections of the Fourth Amendment and art. 14.

As such, c. 209A cannot authorize a stop in the absence of a

constitutional justification, such as a warrant, reasonable

suspicion of criminal activity or a civil traffic violation, or

a reasonable belief that emergency intervention is required.3



the balance in favor of the governmental interest. In
Rodriguez, however, we invoked this balancing test based on the
existence of a reasonable, articulable suspicion that the
defendant was engaged in illegal, albeit noncriminal, activity.
Id. Based on the facts found by the judge in this case, there
was no reasonable suspicion of criminal or civil wrongdoing at
the time of the stop.
     3
       We agree with the concurrence that, given the   nature and
importance of abuse prevention orders under G. L. c.   209A and
the lesser expectation of privacy in motor vehicles,   California
v. Carney, 471 U.S. 386, 392-393 (1985), effecting a   motor
                                                                   6


Ultimately, whether a stop to serve a c. 209A order is a

reasonable measure to avert the harm from an emergency depends

on an objective assessment of the necessity of doing so, in

light of all facts known to law enforcement at the time.     See

Commonwealth v. Meneus, 476 Mass. 231, 235 (2017).   In such

circumstances, the justification for the stop stems not from

G. L. c. 209A, but from the constitutional exception to the

warrant requirement.   When a stop is not constitutionally

justified, reasonable means for service would include the

mechanisms typically employed for service:   in-person delivery,

leaving the order at the defendant's home, or service by mail,

as appropriate.   See G. L. c. 276, § 25 (service of criminal

summons may be made by in-person delivery, by leaving summons at

the defendant's last known address with person of suitable age,

or by mail to last known address); Mass. R. Civ. P. 4 (d) (1),

as amended, 370 Mass. 918 (1976) (service of civil summons and




vehicle stop to serve an abuse prevention order may be
constitutionally justified in some circumstances, such as an
emergency or other exception to the Fourth Amendment's warrant
requirement. Because the constitutionality of a stop depends on
its reasonableness based on the totality of the circumstances,
we limit our holding today due to the absence of facts that have
matured through litigation that would allow us to apply the
doctrinal framework in a meaningfully helpful manner.
                                                                   7


complaint may be made in person, by delivery to defendant's last

and usual place of abode, or by delivery to defendant's agent).4

     Conclusion.   The answer to the reported question is "no."

We remand the case to the District Court judge for further

proceedings consistent with this opinion.

                                   So ordered.




     4
       Following a motor vehicle operated by a defendant until it
stops and the defendant leaves the vehicle would constitute a
constitutionally satisfactory method of service.
    GANTS, C.J. (concurring, with whom Gaziano and Budd, JJ.,

join).   I agree with the court's answer of "no" to the reported

question to the extent that it declares that G. L. c. 209A does

not independently authorize the police to effectuate a motor

vehicle stop in order to serve notification of an abuse

prevention order.   I also agree that any such stop must comply

with the requirements of the Fourth Amendment to the United

States Constitution and art. 14 of the Massachusetts Declaration

of Rights.   Ante at     .   I write separately because I believe

that a stop for the purpose of serving an abuse prevention order

may be reasonable under the Fourth Amendment and art. 14 where

the exigent circumstances fall short of the standard for an

"emergency" under the "emergency aid" doctrine.    See

Commonwealth v. Peters, 453 Mass. 818, 819 (2009) (police may

enter home without warrant "when they have an objectively

reasonable basis to believe that there may be someone inside who

is injured or in imminent danger of physical harm").

    The ultimate touchstone of both the Fourth Amendment and

art. 14 is reasonableness.     Commonwealth v. Rodriguez, 472 Mass.

767, 775 (2015).    "[T]o evaluate the permissibility of

particular law enforcement practices, including police stops of

moving vehicles where there is no probable cause to suspect the

vehicle's involvement in criminal activity, courts have balanced

the intrusiveness of the police activities at issue against any
                                                                      2


legitimate governmental interests that these activities serve."

Id. at 776, citing Delaware v. Prouse, 440 U.S. 648, 654 (1979).

We deem it reasonable for a police officer to open the unlocked

door of a stopped vehicle where the driver fails to respond to

the officer's repeated attempts to attract his or her attention

and the driver appears to be in some kind of difficulty.     See

Commonwealth v. Leonard, 422 Mass. 504, 505, 509, cert. denied,

519 U.S. 877 (1996).   We also deem it reasonable to allow

officers under limited and defined circumstances to stop

vehicles on roadways at fixed location sobriety checkpoints to

ensure that motorists are not under the influence of alcohol or

drugs.    See Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144

(1983).   See also Michigan Dep't of State Police v. Sitz, 496

U.S. 444, 455 (1990) ("the balance of the State's interest in

preventing drunken driving, the extent to which this system can

reasonably be said to advance that interest, and the degree of

intrusion upon individual motorists who are briefly stopped,

weighs in favor of [sobriety checkpoints]").

    The need to protect ill, injured, or inebriated drivers,

and to protect the public from them, is comparable to the need

to protect the victims of domestic abuse who have obtained abuse

prevention orders under G. L. c. 209A, § 4, by demonstrating a

"substantial likelihood of immediate danger of abuse."     Domestic

violence is a substantial threat to public safety.   See Custody
                                                                      3


of Vaughn, 422 Mass. 590, 595 (1996) ("abuse by a family member

inflicted on those who are weaker and less able to defend

themselves . . . is a violation of the most basic human right,

the most basic condition of civilized society:    the right to

live in physical security, free from the fear that brute force

will determine the conditions of one's daily life").     Last year,

more than twenty domestic violence-related killings occurred in

Massachusetts.   See Jane Doe Inc., Overview of Domestic Violence

Homicides in Massachusetts Year to Date 2016, http://www.janedoe

.org/site/assets/docs/Learn_More/DV_Homicide/2016_YTD_DV_

Homicides-asof_2017_05_16.pdf [https://perma.cc/83KK-94XE].

    The issuance of an abuse prevention order matters little if

it is not served.    General Laws c. 209A, § 7, recognizes the

importance of service by requiring that an abuse prevention

order issued be transmitted "forthwith" to the police for

service upon the defendant and by requiring that police

"promptly" make return of service to the court.    See

Commonwealth of Massachusetts Trial Court, Guidelines for

Judicial Practice:   Abuse Prevention Proceedings 91-92 (rev.

Sept. 2011), http://www.mass.gov/courts/docs/209a/guidelines-

2011.pdf [https://perma.cc/M9MV-8ZXZ] ("In-hand service should

be obtained if at all possible. . . .    Further abuse will not be

deterred if the defendant does not know the order exists
                                                                    4


. . . [, and] successful prosecution for violation of an order

of which the defendant is unaware is probably impossible").

    Service generally can be accomplished by the usual means,

without any need to stop the defendant in a motor vehicle.    But

there are circumstances where service by the usual means proves

futile or is plainly going to be futile, such as where the

abusive partner has left his or her residence indefinitely,

perhaps never to return, without any notice of where he or she

can be reached and without any employment address where he or

she can be found.   Where service through the usual means has

proved futile or is demonstrably futile, I would find it

reasonable and therefore constitutional to stop the defendant's

vehicle in order to serve the order.   The circumstances in this

case fall well short of meeting that standard.
