Heard: September 7, 2018.
received and sworn to in the Brighton Division of the Boston
Municipal Court Department on July 29, 2015, and February 10,
2016. After transfer to the Central Division of the Boston
Municipal Court Department, a pretrial motion to suppress
evidence was heard by Tracy-Lee Lyons, J., and the cases were
tried before her.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
MarySita Miles for the defendant. Cailin M. Campbell,
Assistant District Attorney, for the Commonwealth.
Michael A. DelSignore & Julie Gaudreau, for National
College for DUI Defense, amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
afternoon in July 2015, a State police officer stopped the
defendant for speeding and driving erratically on the
Massachusetts Turnpike. After the traffic stop, the officer
arrested the defendant for operating a motor vehicle while
under the influence of marijuana, G. L. c. 90, § 24 (1)
(a.) (1) . Subsequently, police officers searched the
defendant's automobile and found bags of marijuana, a
firearm, and ammunition in the trunk, and oxycodone and
cocaine in the locked glove compartment.
defendant moved to suppress the evidence seized from his
automobile. A Boston Municipal Court judge conducted an
evidentiary hearing and thereafter denied the motion to
suppress; she found that the police had probable cause to
arrest the defendant for operating a motor vehicle while
under the influence of marijuana, and that the search of the
vehicle was justified as an inventory search. A jury
acquitted the defendant of all charges except unlawful
possession of the drugs found within the locked glove
compartment. The defendant appealed to the Appeals Court, and
we transferred the case to this court on our own motion.
appeal, the defendant argues that police did not have
probable cause to arrest him for operating a motor vehicle
while under the influence of marijuana, the search of his
automobile was not a lawful inventory search or justified by
any other recognized exception to the warrant requirement,
and his trial counsel was ineffective for conceding that the
defendant possessed the drugs found in the glove compartment.
conclude that there was no error in the denial of the
defendant's motion to suppress, and that the defendant
was not deprived of the effective assistance of counsel.
summarize the facts as found by the motion judge,
supplemented where appropriate with uncontroverted evidence
from the suppression hearing that is not contrary to the
judge's findings and rulings. See Commonwealth v.
Melo, 472 Mass. 278, 286 (2015). We reserve for later
discussion certain facts relevant to specific claims.
28, 2015, at 12:40 P.M., Major Daniel Risteen was driving
eastbound on the Massachusetts Turnpike in an unmarked Ford
Taurus cruiser. The defendant, driving a gray Infiniti sedan,
sped past Risteen. Risteen observed the defendant drive at
speeds between seventy and eighty miles per hour, and follow
"dangerously close" to two other vehicles. The
defendant failed to slow down at the toll booths at Exit 18,
to Brighton or Cambridge; he was driving seventy miles per
hour in a zone with a posted speed limit of thirty miles per
hour. Using his public address system, Risteen stopped the
vehicle immediately after it had passed through the toll
booths, approximately fifty or sixty feet after the booths.
The defendant, who had been driving in the left hand lane,
stopped on the left hand side of the egress from the toll
addition to the driver, the vehicle was occupied by two
passengers. Risteen approached the driver's side door and
asked the defendant for his license and registration. He
detected a strong odor of burnt marijuana and an odor of
fresh marijuana coming from within the vehicle. The defendant
also smelled of burnt marijuana. Apologizing for "moving
pretty fast," the defendant explained that he and his
two friends were traveling from New York, and that one of
them had to be in Somerville by 1 P.M.
this initial interaction, Risteen noticed that the
defendant's eyes were "red,"
"glassy," and "droopy," and that he was
"fighting with the eyebrows, trying to keep his eyes
open." He had "dry spit" on the sides of his
mouth, his tongue was dry, he was "licking his
lips" in responding to questions, and "his speech
was slow and lethargic." Suspecting that the defendant
was impaired, Risteen returned to his vehicle and called for
assistance. Trooper Michael Lynch responded to the scene in a
marked police cruiser. When Risteen returned to the Infiniti,
the defendant admitted to smoking marijuana "a couple of
hours ago. "
noted that both passengers also appeared to have smoked
marijuana and thought they "looked high." They
smelled of marijuana, and they had trouble staying awake
during the roadside encounter. The judge found, as Risteen
testified, that the passengers' eyes were red and they
appeared "sleepy." They were closing their eyes and
tilting their heads back as Risteen was talking to them. The
passengers both said that they had been smoking marijuana
"earlier" that day.
ordered the defendant to get out of his automobile so that
Risteen could "check out" his condition to drive.
Based on the officer's testimony, the motion judge found
that the defendant exhibited a number of signs of impairment;
"his coordination was slow, his head was bowing down, he
had a hard time focusing -- [the officer] asked him four
times to take his hands out of his pockets, [and] he was not
able to follow simple instructions." Risteen decided to
arrest the defendant, but believed that it would be
"prefer[able]" to have a third officer present, so
the officers would not be outnumbered, and called for
additional backup. Once a third officer arrived, Risteen
placed the defendant under arrest for operating a motor
vehicle while under the influence of marijuana.
he was arrested and placed in the police cruiser, the
defendant asked that one of his passengers be permitted to
drive his vehicle. It was Risteen's opinion that
"neither one of them could drive, they were both
high." Because the officer believed the passengers were
impaired and not capable of driving, he did not accede to the
defendant's request that one of the passengers be allowed
to drive his Infiniti. Rather, the officers impounded the
vehicle and called a tow truck to remove it from the
turnpike. Risteen told the two passengers to get out of the
vehicle, and allowed them to retrieve their personal
belongings -- shoes, other clothing, and backpacks -- from
it, by indicating which items were theirs. He told them that
they were not under arrest and could leave with the ...