Commonwealth v. Smigliano

Abrams, J.

The defendant, Vincent A. Smigliano, was convicted of operating a motor vehicle while under the influence of alcohol. The defendant moved to suppress the evidence of his offense on the ground that, by activating the police car’s blue lights, the officer performed an unlawful seizure. The defendant separately moved to suppress the result of a breathalyzer test on the ground that the officer administering the test was certified not by the Secretary of Public Safety (Secretary), but by the Criminal Justice Training Council (council), contrary to the terms of G. L. c. 90, § 24K. A District Court judge denied both motions. We transferred the case to this court on our own motion and now affirm the conviction.

We summarize the facts the motion judge found. On February 17, 1996, a Peabody police officer was on duty. There was a snowstorm taking place, and automobiles were sliding and skidding due to the icy road conditions. A motorist stopped the officer and told him that he had followed an automobile from Salem to Peabody and the automobile was “all over the road.” After the officer saw the automobile that had been described, he followed it for approximately one-quarter of a mile, during which time he twice saw the automobile veer to the right and almost strike parked cars. The automobile stopped, and the officer pulled up behind it, activated his blue lights, and got out of his cruiser to approach the car. The officer saw the defendant (driver) slumped over with his head on the steering wheel. At first, the defendant did not respond to the officer, but he did respond a few minutes later. A conversation followed, resulting in the arrest of the defendant for operating while under the influence of liquor.

■ l.A seizure takes place within the meaning of the Fourth Amendment to the United States Constitution, see Terry v. Ohio, 392 U.S. 1 (1968), and art. 14 of the Massachusetts Declaration of Rights “if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Commonwealth v. Stoute, 422 Mass. 782, 786 (1996), quoting Commonwealth v. Borges, 395 Mass. 788, 791 (1985). We have said that, under art. 14, pursuit by a police officer constitutes a seizure that must be supported by, at least, reasonable suspicion. See Commonwealth v. Stoute, supra at 789; Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981). Here, there was no significant pursuit because the defendant had already stopped his car before the officer activated the blue lights. Nevertheless, a reasonable person, on the activation of a police car’s blue lights, would believe that he or she is not free to leave. See Ozhuwan v. State, 786 P.2d 918, 920 (Alaska App. 1990) (“in the eyes of a reasonable person, the police conduct in the present case [activating the overhead red lights] would be virtually tantamount to an overt command to ‘stay put’ ”); State v. Markgraf, 59 Wash. App. 509, 511 (1990), citing State v. DeArman, 54 Wash. App. 621, 624 (1989). Activating the blue lights thus was a seizure requiring some level of justification.

The seizure was justified because the officer had grounds for reasonable suspicion that the defendant was engaged in criminal activity, more specifically, that the defendant was operating while under the influence of alcohol. The officer had received the motorist’s report that the defendant’s car had been “all over the road,” and he had seen the defendant’s driving. Because the facts offered to justify the seizure included the motorist’s report, we evaluate the motorist’s basis of knowledge and reliability. See Commonwealth v. Lyons, 409 Mass. 16, 19 (1990). Weakness in either requirement can be made up for by independent police corroboration. Id. Because reasonable suspicion is a lower standard than probable cause, we apply this test less rigorously when such a report is offered to support reasonable suspicion. See id. Here, the motorist saw the defendant’s car. Therefore, the report was based on the motorist’s personal knowledge. We have no evidence as to what, if anything, the officer concluded about the motorist’s reliability from their face-to-face encounter. However, the report was corroborated by the officer’s observations of the defendant’s car swerving and nearly hitting parked cars. Based on the report and the officer’s observations, an officer could have reasonably suspected that the defendant was operating a motor vehicle while under the influence of alcohol. Therefore, activating the blue lights was justified as a Terry stop to investigate possible criminal activity. The judge properly denied the motion to suppress.

We do not agree with the concurrence’s view that this case is controlled by the “community caretaking” rationale of Commonwealth v. Leonard, 422 Mass. 504, cert. denied, 519 U.S. 877 (1996). In Leonard, the challenged police action was opening the driver’s side door of the defendant’s car. The police officer in Leonard had activated his lights, “used his PA system and air horn,” and knocked on the window, and the defendant was completely unresponsive. Id. at 505. This gave rise to a reasonable belief that the driver probably required immediate assistance, justifying opening the door. See id. at 509. Indeed, it is hard to see what else the officer could have done. It would have been reasonable to believe, for example, that the defendant had had or was having a heart attack or was seriously ill, in which case the officer could not reasonably have simply left a citizen to die without exposing himself and his municipal employer to criticism and potential liability. In this case, by contrast, there are no similar facts giving rise to a reasonable belief that the defendant required immediate assistance.

There is no merit to the contention that there was no basis for a Terry stop simply because the officer testified he did not suspect the defendant of any wrongdoing but believed the defendant was lost¹ or having trouble. Because the facts and circumstances known to the officer are sufficient to create a reasonable suspicion of operating under the influence in a reasonable police officer, a Terry stop is justified regardless of the officer’s subjective state of mind. See, e.g., Ornelas v. United States, 517 U.S. 690, 696 (1996) (determination of reasonable suspicion principally based on “whether [the] historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion”). See also Whren v. United States, 517 U.S. 806, 812-813 (1996) (constitutional reasonableness of traffic stops based on probable cause does not depend on actual motivations of individual officers; subjective intentions play no role in analysis under Fourth Amendment).²

The concurrence proposes that police officers have discretion that is essentially standardless. This would leave the police with no limitations, trial judges with no guidance, and citizens with no effective constitutional protection.³

2. General Laws c. 90, § 24K, authorizes the Secretary to “promulgate rules and regulations regarding satisfactory methods, techniques and criteria for the conduct of [breath] tests, and [to] establish a statewide training and certification program for all operators of [breath-testing] devices.” It further requires “that no person shall perform such a test unless certified by the [Secretary.” The Secretary has promulgated regulations authorizing the council to certify breath-testing operators. 501 Code Mass. Regs. §§ 2.21-2.22 (1993). The defendant argues that this regulation is inconsistent with G. L. c. 90, § 24K, and is therefore invalid. Further, because the officer who administered a breath test to the defendant was certified by the council rather than the Secretary, the defendant argues that the test was invalid and inadmissible. We disagree.

In our view, the Secretary has validly delegated her certification authority to the council. “[A]n administrative agency . . . can delegate the performance of administrative and ministerial duties and, where it is impossible for them to be performed in person, it must do so.” Morris v. Commonwealth, 412 Mass. 861, 865 (1992), quoting Krug v. Lincoln Nat’l Life Ins. Co., 245 F.2d 848, 853 (5th Cir. 1957). It is unreasonable to expect the Secretary herself to certify each breath-test operator in person, so the duty must be delegated. The council is within the Executive Office of Public Safety, of which the Secretary is the head. G. L. c. 6A, §§ 2-3, 18. The council thus certifies operators under the Secretary’s ultimate supervision. Also, the council is in the best position to determine who has successfully completed its training program, so it is the most obvious entity to perform the ministerial task of issuing the certifications. We conclude that the delegation of certification authority to the council did not violate G. L. c. 90, § 24K, that the breathalyzer operator was properly certified, and that the judge properly denied the defendant’s motion to suppress.

Judgment affirmed.

1 An officer’s reasonable belief that a motorist is lost “free of complicating elements (safety hazards, illness, suspicion of crime, or the like)’’ is insufficient to justify a seizure. Commonwealth v. Canavan, 40 Mass. App. Ct. 642, 647 & n.6 (1996).

2 Many cases cited in the concurrence, identifying specific facts justifying police intervention, support our view that there must be limits on a police officer’s discretion to extend a “helping hand.” See, e.g., United States v. King, 990 F.2d 1552, 1561 (10th Cir. 1993) (driver incessantly honked his horn at accident site; officer reasonably believed this created a hazard); Crauthers v. State, 727 P.2d 9, 11 (Alaska App. 1986) (driver rolled down his window; officer reasonably believed he was requesting assistance); State v. Puig, 112 Ariz. 519, 520 (1975) (driver used hand signal; officer reasonably stopped him “to check apparent defects in safety devices”); State v. Mitchell, 498 N.W.2d 691, 694 (Iowa 1993) (broken taillight justified stop for safety reasons); State v. Fuller, 556 A.2d 224, 224 (Me. 1989) (headlights blinked several times; officer reasonably believed they were defective); Provo City v. Warden, 844 P.2d 360, 361, 365 (Utah Ct. App. 1992), aff'd, 875 P.2d 557 (Utah 1994) (officer received tip that defendant was seeking to buy cocaine “so he could ‘drive himself into a wall’ stop justified for suicide prevention); Commonwealth v. Waters, 20 Va. App. 285, 291 (1995) (pedestrian staggered and walked unsteadily; officer reasonably believed he was “intoxicated, ill, or in need of help”).

3 Standards are developing to determine whether the police in “community policing” situations have acted reasonably. See Provo City v. Warden, 844 P.2d 360 (Utah Ct. App. 1992), aff’d, 875 P.2d 557 (Utah 1994). See also State v. Anderson, 142 Wis. 2d 162, 169 (Ct. App. 1987).