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17-P-771                                             Appeals Court

             COMMONWEALTH     vs.   ROBERT S. EMERTON.


                            No. 17-P-771.


       Suffolk.        December 1, 2017. - October 31, 2018.

            Present:    Agnes, Blake, & McDonough, JJ.


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


     Complaint received and sworn to in the Brighton Division of
the Boston Municipal Court Department on May 16, 2016.

     A pretrial motion to suppress evidence was heard by Myong
J. Joun, J.

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

     Sarah Montgomery Lewis, Assistant District Attorney, for
the Commonwealth.
     Francis M. Doran, Jr., for the defendant.


    AGNES, J.     The defendant, Robert S. Emerton, was charged

with operating a vehicle while under the influence of alcohol
                                                                     2


(OUI), fourth offense, after he was arrested at a sobriety

checkpoint on Soldiers Field Road in the Brighton section of

Boston.   On October 11, 2016, the defendant filed a motion to

suppress evidence, arguing that the roadblock was not carried

out in accordance with constitutional requirements.    A judge of

the Brighton Division of the Boston Municipal Court Department

allowed the defendant's motion to suppress, reasoning that the

roadblock was unlawful because there was insufficient data to

justify the selection of the site, date, and time of the

roadblock.    A single justice of the Supreme Judicial Court

allowed the Commonwealth's petition for interlocutory review and

transferred the matter to this court.    The Commonwealth argues

that the roadblock complied with State police policy and

otherwise met the requirements of the governing case law.       We

agree and, accordingly, reverse the order of suppression.

    Background.     The following facts are drawn from the judge's

findings of fact and other undisputed evidence offered at the

hearing on the defendant's motion to suppress.    Between the

hours of 11:30 P.M. on Saturday, May 14, 2016, and 3 A.M. on the

morning of Sunday, May 15, 2016, members of the State police

conducted a "sobriety checkpoint" along Soldiers Field Road in

Brighton, opposite the Artesani Park parking lot at Everett

Street, in order to detect drivers impaired by the consumption

of alcohol.   This location is about halfway between Harvard
                                                                   3


Stadium and Western Avenue.    Captain Richard Ball, who was the

officer in charge of the checkpoint and was certified to perform

such a role, designed the plan for the checkpoint in accordance

with instructions from his commanding officer.   At the motion

hearing, Captain Ball explained that under State police policy,

the commanding officer of the State police troop in question

reviews data from the prior two years compiled by another

officer concerning alcohol-related arrests throughout the area

patrolled by the troop and then makes a selection of the site

for the sobriety checkpoint.   In this case, Captain Ball's

commanding officer followed that procedure and selected

Soldier's Field Road at Artesani Park as the location for the

roadblock.

     Captain Ball also testified that he consulted State police

General Order TRF-15 (effective April 23, 2009) (TRF-15), which

governs the policies and procedures for conducting such

checkpoints.1   As the officer in charge, Captain Ball prepared


     1 State police General Order TRF-15 has been examined in
several recent appellate court decisions. See, e.g.,
Commonwealth v. Swartz, 454 Mass. 330 (2009); Commonwealth v.
Murphy, 454 Mass. 318 (2009); Commonwealth v. Baker, 91 Mass.
App. Ct. 445 (2017); Commonwealth v. Bazinet, 76 Mass. App. Ct.
908 (2010).

     In Murphy, supra at 319-320, the Supreme Judicial Court
determined that an earlier version of TRF-15 that, unlike the
present version, allowed but did not require the initial
screener to refer drivers to secondary screening if they
appeared to be impaired met constitutional requirements:
                                                                    4


certain documents to guide the members of the State police

assigned to staff the sobriety checkpoint that is the subject of

this case.   These documents, collected in the Written Operations

Plan & Officer's Directives, were received in evidence and

marked as exhibits.2

     In his testimony, Captain Ball explained how sobriety

checkpoints are carried out by the State police.   Vehicles

traveling on the roadway where the checkpoint is established

first encounter a marked police cruiser with its emergency




     "We conclude that TRF–15 falls within constitutional
     parameters, because its guidelines permit a vehicle to be
     diverted to secondary screening only when the officer has a
     reasonable suspicion, based on articulable facts, that the
     driver has committed an OUI violation or another violation
     of law. The second question presented is whether TRF–15
     allows a constitutionally impermissible amount of
     discretion to the initial screening officers to question
     drivers when there is no indication of intoxication. We
     conclude that, as a result of the orders and instructions
     in the operations plan that governed this sobriety
     checkpoint and supplemented the guidance provided by TRF–
     15, the discretion provided to the initial screening
     officers in greeting motorists was appropriately limited to
     pass constitutional muster."

     2 The Written Operations Plan and Officer's Directives
consists of a number of different documents, including a copy of
TRF-15; briefing notes for the troopers who participate in the
sobriety checkpoint; an order from the State police division
commander; a "Site Problem/Selection Sheet," which explains why
the sobriety checkpoint was located near Artesani Park and
contains a diagram of the area; a written order from the Troop H
commander to Captain Ball, outlining his responsibilities as the
detail commander; a news release about the sobriety checkpoint;
a duty assignment sheet and duty roster form; an activity log; a
data collection sheet; and some legal guidance.
                                                                     5


lights flashing.    An illuminated board with an arrow directs

vehicles to move to the right and to enter a "cone taper," a

single lane created by traffic cones.     A series of six signs

informs motorists to be prepared to stop and that they are

approaching a sobriety checkpoint.    At some point while in this

lane, vehicles are required to briefly stop.    The operator is

greeted by a uniformed member of the State police, who performs

an initial screening function based on an observation of the

operator and the manner in which the operator responds to the

officer's greeting.   Typically, the greeting officer states,

"Hello, this is a State police sobriety checkpoint.    How are you

tonight?"    See Commonwealth v. Swartz, 454 Mass. 330, 332

(2009).   Unless the greeter detects signs of impairment due to

the consumption of an alcoholic beverage ("glassy, red,

bloodshot eyes, odor of alcoholic beverage, slurred speech"), or

evidence that another crime is being committed, the driver of

the vehicle is waved on through the checkpoint.     The initial

stop takes less than one minute.     If the greeter suspects that

the driver is under the influence of alcohol, the driver is

directed to a screening location where a different trooper is

stationed.   During the second screen, the trooper engages the

driver in conversation and may ask the driver if he or she has

consumed any alcohol.    If there is confirmation of the initial

suspicion of impairment due to the consumption of alcohol, the
                                                                    6


second screener may request that the driver perform field

sobriety tests.   See Commonwealth v. Murphy, 454 Mass. 318, 321

(2009).   The second screening involves a longer detention that

may last ten to fifteen minutes.     As a result of this second

screening, the motorist is either placed under arrest or allowed

to proceed through the checkpoint.

    In his capacity as the officer in charge, Captain Ball's

responsibilities included briefing the troopers and officers

assigned to the sobriety checkpoint, each of whom received a

packet of information and instructions (including the

operational plan and the rules, regulations, and case law that

govern sobriety checkpoints).     He also drove his vehicle through

the checkpoint before it became operational to ensure that the

signage was proper and that it was safe for motorists.

Periodically during the operation of the checkpoint, Captain

Ball walked through it to ensure the checkpoint was being

conducted according to the operational plan.     The operational

plan required that every vehicle entering the checkpoint would

be subjected to preliminary screening; the officers staffing the

checkpoint were not given discretion to pick and choose the

vehicles to be screened.   As the officer in charge, Captain Ball

was authorized to suspend the screening for safety reasons if

there was a backup of vehicles.    In that case, all vehicles
                                                                    7


would be waved through the checkpoint until the screening

function was resumed.3

     On the night in question, approximately 1,180 vehicles

entered the checkpoint and encountered the trooper serving as

the greeter, and "[f]ifty-something" vehicles received secondary

screening.   Sergeant Nasuti, also of the State police, greeted

the defendant at the checkpoint.    While speaking to Sergeant

Nasuti, the defendant admitted to having consumed alcohol that

night.    Sergeant Nasuti observed that the defendant had glassy,

red eyes and smelled of an alcoholic beverage.     The defendant

was sent for further screening based on Sergeant Nasuti's

observations.   Based on the observations made during the

secondary screening, the defendant was arrested.

     Discussion.    When reviewing a judge's findings and rulings

on a motion to suppress evidence, we accept the judge's

subsidiary findings of fact unless it is shown that there is

clear error, but we make an independent determination whether

the judge correctly applied constitutional principles to the

facts as found.    See Commonwealth v. Ocasio, 434 Mass. 1, 4

(2001).   The constitutional provisions governing this case are

well established.    The stop of the defendant's vehicle was a




     3 On the evening in question, a backup did occur at one
point, and about eighty vehicles were waved through the
checkpoint without screening.
                                                                    8


warrantless seizure without individualized suspicion.     Murphy,

454 Mass. at 322.   "In determining whether such seizures are

reasonable, we have recognized that we must balance the strong

public interest in reducing the number of persons who die each

year on our highways from alcohol-related accidents against the

individual's right to personal security free from arbitrary

interference by law officers" (quotations omitted).     Id.

     The sole question before us is whether the judge was

correct in concluding that the roadblock in question was

unlawful because the selection of the timing and location of the

roadblock on Soldiers Field Road was in violation of

constitutional standards and State police policy.   In order for

a sobriety checkpoint to meet the constitutional test of

reasonableness,4 "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 pursuant to a plan devised

by law enforcement supervisory personnel."   Id. at 323, quoting

Commonwealth v. McGeoghegan, 389 Mass. 137, 143 (1983).       To this

end, State police policy, as reflected in the record on appeal,

provides that police administrators and supervisors must select


     4 The factors that must be considered in determining the
constitutionality of sobriety checkpoints are the same under
State and Federal law. Murphy, 454 Mass. at 323 n.5.
                                                                   9


a site "where accidents or prior arrests for drunken driving

have occurred . . . ."5   In addition, the troopers and officers

assigned to a sobriety checkpoint must comply strictly with the

State police guidelines and the specific plan developed for each

sobriety checkpoint.    See Commonwealth v. Anderson, 406 Mass.

343, 349 (1989) ("Adherence to a neutrally devised, preplanned

blueprint in order to eliminate arbitrariness and discretion has




     5 The quoted language can be found in the "Site
Problem/Selection Sheet" used to select the Soldiers Field Road
sobriety checkpoint location in the present matter, and is a
direct quote from State police guidelines for roadblocks
promulgated in 1983. In Commonwealth v. Trumble, 396 Mass. 81,
89 (1985), the Supreme Judicial Court determined that the 1983
guidelines satisfied the constitutional requirements set forth
in McGeoghegan, 389 Mass. at 143. The 1983 guidelines provided,
in pertinent part:

     "SITE SELECTION: Problem areas -- where accidents or prior
     arrests for drunken driving have occurred. Specific areas
     to be selected by respective administrators and
     supervisors.

          "A. Individual site selection should be based on
     selective enforcement identifiers as to time, place and
     cause of prior serious injury accidents.

          "B. Site should allow officers to pull vehicles out
     of the traffic stream without causing a significant
     intrusion to them and/or creating a safety hazard because
     of a traffic back-up. It is suggested that areas adjacent
     to rest areas or parking lots be utilized.

          "C. Selected sites should allow for visibility of on-
     coming motorists, safety for stopped vehicles, as well as
     safety for the officers."

Trumble, supra at 92.
                                                                     10


been this court's principal prerequisite for abandoning the

requirement of individualized suspicion in roadblock stops").

    In the present case, the judge found that TRF-15 and the

other policies governing the roadblock at issue comported with

the McGeoghegan principles.     He rejected the defendant's claims

that the State police troopers and officers conducting the

sobriety checkpoint were impermissibly given discretionary

authority over when to wave vehicles through the roadblock and

when to stop them, and that the State police failed to give the

public sufficient advance notice of the roadblock.    However, the

judge determined that the selection of the site and timing for

the roadblock was unreasonable and in violation of State police

policy and the State and Federal Constitutions because it was

not based on sufficient statistical data.

    In keeping with the 1983 guidelines approved in

Commonwealth v. Trumble, 396 Mass. 81, 89 (1985) (see note 5,

supra), TRF-15 requires that the selection of the site for a

sobriety checkpoint "shall be made based upon selective

enforcement identifiers of alcohol related traffic crashes or

prior OUI violations such as:    [t]ime; [d]ay of the week; and

[l]ocation."   TRF-15 does not require that the site selected be

one where any minimum number of alcohol-related arrests were

made or accidents occurred, or where the most such events

occurred.   It also expressly requires that the supervisory law
                                                                  11


enforcement officers who select the site take into account

"[s]afety considerations," including the safety of motorists and

the police, as well as "[s]ight visibility; [t]raffic volume and

pattern; [o]perator reaction time; and [o]perator stopping

distance."

    The reason why the site ("Soldiers Field Road, at the

intersection of Artesani Park, in the Brighton section in the

city of Boston") was selected in this case is explained in the

"Site Problem/Selection Sheet," prepared by the State police and

part of the record on appeal.   It contains the following

statement:

    "State Police Policy and case law state . . . that site
    selection must be a problem area, one where accidents or
    prior arrests for drunken driving have occurred and based
    upon selective enforcement identifiers of alcohol related
    traffic accidents or prior OUI violations.

    "The records of the State Police Brighton Barracks were
    searched for statistical data showing a high incidence of
    OUI arrests and accidents resulting in OUI arrests in the
    surrounding area and roadways leading to Soldiers Field
    Road, Brighton. From May 14th, 2014 to May 9th, 2016 there
    were 167 OUI arrest [sic] made by the State Police Brighton
    Barracks, 83 arrests were in the City [of] Boston and 83 of
    those arrests were on Soldiers Field Rd[.] or the Roadways
    leading to Soldiers Field Rd."

The judge concluded that the analysis by the State police for

the site selection in this case was constitutionally inadequate

because (1) it lacked justification for the time of day and day

of the week (a weekend versus a weekday) selected, (2) it lacked

justification for the selection of Soldiers Field Road versus
                                                                  12


one of the roads leading to Soldiers Field Road, and (3) the

total number of alcohol-related arrests over a two-year period

(eighty-three) was not significant enough to establish that

Soldiers Field Road was a "problem area."

    With regard to the decision to select Saturday, May 14,

2016, beginning at 11:30 P.M. until Sunday, May 15, 2016, at

3 A.M. as the date, time, and duration of the sobriety check

point, we agree with the Commonwealth that neither State police

guidelines nor constitutional reasonableness requires the police

to demonstrate empirically the precise day of the week and time

of day when the most arrests and accidents have previously

occurred, and then to choose that day and time for establishing

a sobriety checkpoint.   Rather, it was reasonable for the State

police to select a Saturday in the late evening into the early

morning hours of a Sunday to operate the sobriety checkpoint, as

it is widely known that these are the hours when many people are

driving home from movie theatres, restaurants, bars, and other

entertainment venues in and around the city of Boston where

alcoholic beverages are served.   See G. L. c. 138, § 12 (alcohol

may not be served by licensed establishments after 2 A.M.).     It

also was reasonable for the State police to assume that among

the population of working adults, fewer people are required to

work on Sunday morning than on other days.   For these reasons,

it was reasonable for the State police to assume that there
                                                                  13


would be as high a percentage (if not a higher percentage) of

impaired drivers among the people operating motor vehicles in

the late evening and early morning hours of Saturday into

Sunday, as compared to any other night of the week.   Here, the

determination by the State police of the date and duration of

the sobriety checkpoint satisfied the requirement that "the

roadblock meet standard, neutral guidelines."   Anderson, 406

Mass. at 347.   The State police guidelines also expressly

require that law enforcement supervisors consider the safety of

motorists in determining site selection.   If the police choose a

time of day or night when there is expected to be a very high

volume of vehicles, there is a greater risk of accidents

unrelated to alcohol impairment, as well as the likelihood that

due to backups, more vehicles would be waved through the

checkpoint without being screened.

    With regard to the selection of Soldiers Field Road versus

one of the roads leading to Soldiers Field Road, we have

observed that site selection must be "based on fresh, reliable

information" and not left to the discretion of the State police.

Commonwealth v. Donnelly, 34 Mass. App. Ct. 953, 955 (1993).      We

conclude that such "fresh" and "reliable" data was used in this

case.   At the motion hearing, Captain Ball testified that before

deciding where a roadblock will be located, the troop commander

compiles information regarding the areas with "high inciden[ce]
                                                                   14


of OUI infractions."   In this case, the evidence was collected

over the course of the two years preceding the sobriety

checkpoint, up to and including five days before the checkpoint

was conducted.   The evidence provided showed that of the 167

alcohol-related arrests made by troopers assigned to the

Brighton barracks in that two-year period, eighty-three of the

arrests occurred on Soldiers Field Road or the roads leading to

Soldiers Field Road.   This is not a case where outdated reports

were relied upon for site selection.   The statistics here were

"compiled continuously" and covered a full two years of relevant

information.   Contrast Donnelly, 34 Mass. App. Ct. at 954-955

(judge should have allowed motion to suppress where roadblock

was conducted in late 1989, the only evidence of prior alcohol-

related incidents was from 1987, and results of recent

roadblocks in the same area were not offered in evidence).

Insofar as the judge understood the Constitution or TRF-15 to

require the police to identify the location of the eighty-three

alcohol-related arrests more precisely than by indicating they

occurred on Soldiers Field Road and the roads leading to

Soldiers Field Road, we do not believe that such a degree of

precision is required.6


     6 While the defendant argued at the hearing on the motion to
suppress that the statistical data was not sufficient to
establish why the sobriety checkpoint was sited in the location
in question on Soldiers Field Road, there was no evidence
                                                                    15


    The judge also reasoned that even if it were assumed that

all eighty-three of the past arrests were made on Soldiers Field

Road, that number of arrests over a two-year period was not

sufficient to support labeling Soldiers Field Road a "problem

area."   We do not agree.   In Commonwealth v. Amaral, 398 Mass.

98 (1986), where the Supreme Judicial Court determined that a

roadblock carried out without a plan drawn up by law enforcement

supervisory personnel and without any advance notice to the

public did not meet constitutional standards, the court added

that "[a]nother factor that tends to eliminate arbitrariness is

the selection of a roadblock site because it has been a problem

area, one 'where accidents or prior arrests for drunken driving

have occurred.'"   Id. at 101, quoting the 1983 guidelines

reviewed in Trumble, 396 Mass. at 92.    In Donnelly, we explained

that the critical element that differentiates a site selection

that meets constitutional standards from one that does not is

the nature of the data used to make the selection.    "By relying

on reports that are two years old, combined with the failure to

produce recent, pertinent information which the State police

generated and which does not appear to have been unavailable for

the trial, the Commonwealth converted the site selection from a

choice based on fresh, reliable information to a choice made by



presented that there was another suitable location in the area
or on any of the roadways leading to Soldiers Field Road.
                                                                  16


the State police in their discretion.   The necessary adherence

to the Commonwealth's own guidelines was not satisfied . . . ."

34 Mass. App. Ct. at 955.

    In the present case, unlike in Amaral and Donnelly,

supervisory law enforcement personnel selected the site for the

roadblock in compliance with State police guidelines and on the

basis of "fresh, reliable" crash and arrest data, namely data

from the two-year period immediately preceding the roadblock

that was compiled by the State police Brighton barracks.

Neither the Supreme Judicial Court nor this court has previously

required the police to demonstrate any minimum number of

alcohol-related arrests or accidents that must have occurred in

a location before it may be the site of a roadblock.   To require

a strict correspondence between the site selected for a sobriety

checkpoint and the precise location of the largest number of

alcohol-related arrests over time or a minimum number of

alcohol-related arrests per week or per month at the location

selected for a sobriety checkpoint is another way of demanding

that in order to meet the test of reasonableness, a sobriety

checkpoint must represent the least intrusive alternative among

all the choices available for the enforcement of G. L. c. 90,

§ 24.   This line of reasoning was rejected in Commonwealth v.

Shields, 402 Mass. 162, 165-168 (1988).   Furthermore, in

selecting the site for a sobriety checkpoint under TRF-15, as
                                                                  17


noted earlier, supervisory law enforcement personnel must

consider the safety of motorists and law enforcement personnel.

See Trumble, 396 Mass. at 89.

     These considerations demonstrate that the selection of the

site for a sobriety checkpoint requires the exercise of

discretion by supervisory law enforcement officials, who must

take into account safety and convenience factors as well as the

number of alcohol-related arrests.7   In the present case, the

judge concluded, as a matter of law, that it was unreasonable

for the commanding officer of the State police troop in question

to select a site on Soldiers Field Road for a sobriety

checkpoint based solely on data indicating there were eighty-

three arrests in the prior two years (on average, three and one-

half arrests each month) for alcohol-related offenses in the




     7 The exercise of discretion by supervisory law enforcement
officers in selecting the site for a sobriety checkpoint must be
distinguished from the need by law enforcement to follow a
guideline such as TRF-15 that strictly limits the discretion
that may be exercised by law enforcement personnel carrying out
the roadblock. See Murphy, 454 Mass. at 323 ("Because sobriety
checkpoints, by their very nature, initially stop drivers
without any individualized suspicion, giving police officers
such discretion poses too high a risk that the discretion will
be standardless and unconstrained" [quotation omitted]); id. at
325 ("police officer discretion in deciding whom to stop must be
severely circumscribed by clear guidelines"). See also
Commonwealth v. Aivano, 81 Mass. App. Ct. 247, 250 (2012) ("the
linchpin for determining the constitutionality of a roadblock is
the use of a predetermined plan, developed by supervisory law
enforcement personnel, to eliminate the exercise of discretion
by law enforcement personnel in the field").
                                                                   18


area because that number of arrests was not sufficiently

indicative of the location being a problem area.   This reasoning

focuses exclusively on the value of sobriety checkpoints as a

means of detecting impaired drivers and not at all on their

value in deterring people from driving when under the influence

of alcohol.8   Neither TRF-15 nor the prior decisions of the

Supreme Judicial Court or this court provide support for such a

limited understanding of the reasonableness requirement under

the Fourth Amendment to the United States Constitution or art.

14 of the Massachusetts Declaration of Rights.

     Conclusion.   For the above reasons, the order allowing the

defendant's motion to suppress is reversed, and a new order

shall enter denying the motion.




     8 The Division Commander's Order, 15-DFS-044 (2015), which
is part of the supporting documentation for the sobriety
checkpoint in this case, indicates that "sobriety checkpoints"
are one of a number of "highway safety mobilizations" designed
"to achieve reductions in fatal and personal injury motor
vehicle crashes and create a safer and more efficient highway
transportation system within the Commonwealth . . . ." In
McGeoghegan, 389 Mass. at 143-144, the Supreme Judicial Court
noted that high visibility police activities like sobriety
checkpoints "may achieve a degree of law enforcement and highway
safety that is not reasonably attainable by less intrusive
means." And, in Shields, 402 Mass. at 167 n.3, the court stated
that "[t]he strong State interest in eliminating the carnage
caused by drunk drivers, . . . sets roadblocks to enforce c. 90,
§ 24, apart from roadblocks for other purposes" (quotation
omitted). These cases recognize that carefully regulated, high
visibility law enforcement activities may have a deterrent
effect that cannot be achieved by traditional enforcement
measures.
              19


So ordered.
