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Commonwealth v. Emerton

Appeals Court of Massachusetts, Suffolk

October 31, 2018


          Heard: December 1, 2017.

         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.

          Present: Agnes, Blake, & McDonough, JJ.

          AGNES, J.

         The defendant, Robert S. Emerton, was charged with operating a vehicle while under the influence of alcohol (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.


         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 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 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 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 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 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 ...

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