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16-P-783                                               Appeals Court

                   COMMONWEALTH   vs.   JAMIE BAKER.


                            No. 16-P-783.

           Plymouth.      March 8, 2017. - May 4, 2017.

            Present:    Grainger, Blake, & Neyman, JJ.


Constitutional Law, Search and seizure, Roadblock by police.
     Search and Seizure, Motor vehicle, Roadblock by police.
     Motor Vehicle, Operating under the influence. Practice,
     Criminal, Motion to suppress.


     Complaint received and sworn to in the Brockton Division of
the District Court Department on May 27, 2014.

     A pretrial motion to suppress evidence was heard by
Julieann Hernon, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Barbara A. Lenk, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.


     Keith A. Garland, Assistant District Attorney, for the
Commonwealth.
     Bethany J. Rogers for the defendant.


    GRAINGER, J.     Defendant Jamie Baker, charged in the

District Court with operating while under the influence of
                                                                     2


alcohol, see G. L. c. 90, § 24(1)(a)(1), and negligent

operation, see G. L. c. 90, § 24(2)(a), moved to suppress

evidence of his intoxication, arguing that the evidence was

secured from a sobriety checkpoint not conducted in strict and

absolute compliance with the written operational plan (the

plan).    After his motion was allowed, the Commonwealth was given

leave by a single justice of the Supreme Judicial Court to

pursue this interlocutory appeal.    The Commonwealth argues that

the motion judge erred in suppressing the evidence and we agree.

    We recite the pertinent facts found by the motion judge.

Police Captain Thomas Majenski was directed by police Major

Anthony Thomas to conduct a saturation patrol and sobriety

checkpoint with a detail of State troopers and police officers

from the town of Abington (the town).    The plan stated that the

roadblock would begin at 11:30 P.M.     Major Thomas directed that

all officers report for the training and briefing session prior

to the checkpoint.    Captain Majenski was directed to command the

detail for the roadblock.    Three officers1 arrived after the

roadblock commenced.    Upon their arrival, Captain Majenski

briefed them.

    During the roadblock, the defendant was pulled over and

greeted by Sergeant Kevin Cutter of the town police.     Sergeant

Cutter observed signs of intoxication in the defendant and

    1
         Troopers Kyle Duarte, Carly Timmons, and Andrew Hamilton.
                                                                    3


directed him to the "pit" area.   The defendant refused "to drive

the vehicle."   He then was escorted from the vehicle to the pit

area where Officer Justin Simmons of the town police asked him

to perform sobriety tests.   After the tests, the defendant was

placed under arrest.

     Upon completion of the roadblock, officer activity reports

were not submitted by any of the town police officers2 or by four

of the State troopers.   One officer present at the roadblock

failed to sign the duty roster affirming that he had reviewed

the plan and the State police General Order TRF-15, which

governed sobriety checkpoints.    The motion judge concluded that

the Commonwealth failed to demonstrate that the roadblock was

conducted in strict compliance with the plan.

     Discussion.   We determine independently whether the judge

correctly applied constitutional principles to the facts as

found.   Commonwealth v. Ocasio, 434 Mass. 1, 4 (2001).    "[F]or

sobriety checkpoints to be reasonable under the Fourth Amendment

[to the United States Constitution] and art. 14 [of the

Massachusetts Declaration of Rights], '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

     2
       As previously stated, the officer who greeted the
defendant and the officer who conducted the sobriety tests were
members of the town police.
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pursuant to a plan devised by law enforcement supervisory

personnel.' . . .   Police officers may not . . . have discretion

to target which vehicles to stop."   Commonwealth v. Murphy, 454

Mass. 318, 323 (2009).   In sum, "[t]he constitutional

jurisprudence regarding roadblocks in general, and sobriety

checkpoints in particular, has focused on the reasonableness of

the initial stop of a vehicle, which constitutes a seizure

without individualized suspicion."   Id. at 324-325.

    The judge concluded that the roadblock deviated from the

plan in four respects:   (1) a number of officers arrived after

the reporting time detailed in the plan, (2) while Captain

Majenski was briefing the late officers, he was not performing

supervisory duties as instructed, (3) one trooper, who was not

the officer involved with stopping the defendant's vehicle, did

not sign the duty roster affirming he had reviewed the plan and

other relevant documents, and (4) after the roadblock was

completed, several officers failed to submit a report as

required by the plan.

    We conclude, however, that none of these deviations

introduced constitutionally prohibited "arbitrariness and

discretion" into the actions of the screening officer (Sergeant

Cutter).   Commonwealth v. Anderson, 406 Mass. 343, 349 (1989).

Indeed, the defendant declined to challenge the particular basis

for which he was stopped and asked to perform sobriety tests.
                                                                     5


     Discrepancies with the plan do not necessarily convert a

vehicle checkpoint into a constitutionally unreasonable seizure.

See Commonwealth v. Aivano, 81 Mass. App. Ct. 247, 250-251

(2012) (discrepancy   between actual location of roadblock and

description in press release did not make roadblock

constitutionally unreasonable seizure).   The roadblock started

on time with the minimally required number of officers, per

Major Thomas's directive.   The officers who interacted with the

defendant had arrived on time.    Furthermore, § 5.1 of the State

police Division Commander's Order 13-DFS-008, which governed

highway safety programs, allows the possibility of officers

arriving after the roadblock has been established.3   Section 5.1

also authorized Captain Majenski, as the supervisor, to brief

the officers after their arrival.   We therefore conclude that

the late arrivals and Captain Majenski's briefing did not render

the roadblock unconstitutional.

     Although one State trooper failed to sign the duty roster,

there was no indication that this trooper had not been briefed

appropriately or was unaware of his responsibilities under the

plan as he turned in the required officer activity report.     The

failure of four State troopers and all of the town police


     3
       This order states that for sobriety checkpoints, "a
secondary briefing of officers not in attendance at the pre-
saturation phase roll-call may be conducted prior to his/her
participation in the sobriety checkpoint."
                                                                     6


officers to fill out officer activity reports at the completion

of the roadblock also did not introduce the use of discretion

during the actual roadblock.

       In sum, none of the deviations cited by the defendant

"introduce[d] an opportunity for discretionary departure by law

enforcement in the field from the dictates of the plan."       Id. at

250.   Additionally pertinent here is the fact that the

discrepancies did not have any effect on the defendant, and did

not violate any of his personal rights.    See Commonwealth v.

Ocasio, 434 Mass. at 4.    Contrast Commonwealth v. Anderson,

supra at 349-351 (defendant stopped fifteen minutes after

scheduled end of roadblock suffered actual harm as result of

deviation from plan).    The order allowing the defendant's motion

to suppress is reversed and a new order shall enter denying the

motion.

                                     So ordered.
