The Supreme Judicial Court approved State Police plan “TRF-15” this past summer, paving the way for the State police (and other agencies) to continue conducting sobriety checkpoints as status quo. Field Sobriety checkpoints although a vital tool for law enforcement personnel in maintaining safer roadways, have nonetheless been hotly contested in the past over whether they violate the Fourth Amendment of the Constitution and Article 14 of the Massachusetts Declaration of Rights.
Over the years the U.S. Supreme Court and Massachusetts Supreme Judicial Court (SJC) have outlined the appropriate remedies in establishing a roadblock and for what limited purpose it may be done. The problem of drunk driving has plagued the streets and highways and caused untold deaths and tragic accidents. In 1957 the United States Supreme Court recognized the dangers drunk drivers presented to the public stating in Breithaupt v. Abram 352 U.S. 432, 439 (1957) “The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield. The States, through safety measures, modern scientific methods, and strict enforcement of traffic laws, are using all reasonable means to make automobile driving less dangerous.” This perception was further reinforced by South Dakota v. Nevill 459 U.S. 553, 559 (1983) “The situation underlying this case — that of the drunk driver — occurs with tragic frequency on our Nation’s highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Court, although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy. See Breithaupt v. Abram, 352 U.S. 432, 439 (1957) (“The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield”); Tate v. Short, 401 U.S. 395, 401 (1971) (BLACKMUN, J., concurring) (deploring “traffic irresponsibility and the frightful carnage it spews upon our highways”); Perez v. Campbell, 402 U.S. 637, 657, 672 (1971) (BLACKMUN, J., concurring) (footnote omitted) (“The slaughter on the highways of this Nation exceeds the death toll of all our wars”); Mackey v. Montrym, 443 U.S. 1, 17-19 (1979) (recognizing the “compelling interest in highway safety”).
Defendants have historically grounded their challenges of the roadblocks as being violative of the Fourth Amendment of the Constitution and Article 14 of the Massachusetts Declaration of Rights. The Commonwealth must prove that the roadblock was conducted in accordance with the procedures outlined in Commonwealth v. Trumble 396 Mass. 81 (1985) and Commonwealth v. Mcgeoghegan 398 Mass. 137 (1983). However, cases have shown that there is no need to prove as a precondition to the admission of evidence derived from a roadblock that there was no less intrusive alternative available Commonwealth v. Shields 402 Mass. 162 (1988)
In Commonwealth v. McGeoghegan 389 Mass. 137 (1983), the SJC established parameters on how the procedure of the roadblock is to be conducted. The SJC stated that the following factors must be present.
1. the selection of the motor vehicle to be stopped must not be arbitrary
2. safety must be assured
3. the inconvenience to the public must be minimized
4. the roadblock must be conducted pursuant to a written plan. This plan must be prepared by administrative supervisory personnel according to Commonwealth v. Amaral 398 Mass. 98 (1986).
5. Additionally the SJC gave additional factors that although they did not make mandatory, they did suggest by stating “While we do not suggest that advance notice is a constitutional necessity, advance publication of the date of an intended roadblock even without announcing its precise location, would have the virtue of reducing surprise, fear, and inconvenience. Such a procedure may achieve a degree of law enforcement and highway safety that is not reasonably attainable by less intrusive means. Also, while we do not suggest that roadblocks can only be constitutional if prescribed by statute or appropriate governmental regulation, we think that procedures conducted pursuant to such authorizations and standards would be more defensible than would other procedures.”
Those parameters of the written plan must be strictly adhered to and cannot be deviated from, see Commonwealth v. Anderson 406 Mass. 343, (1989) where an arrest that occurred 15 minutes after the expiration of the time set forth in the written plan invalidated the stop. The place selected for the roadblock may not also be arbitrary and must have an articutable history of problems related to the matter Commonwealth v. Donnelly, 34 Mass. App. Ct. 953 (1993)
The Supreme Judicial Court in two separate opinions approved the controversial two stage sobriety checkpoint plan that was enacted through the Massachusetts State Police Rule TRF-15. In Murphy, the court explained the details of the plan, “Under State police General Order TRF-15 (TRF-15), the two stage process proposed stopping every vehicle that approached the checkpoint it further set forth protocols and guidelines governing sobriety checkpoints conducted in Massachusetts, supplemented by orders and instructions specific to this roadblock included in the saturation patrol and sobriety checkpoint operational plans and directives (operations plan). At the time of the defendant’s arrest, TRF-15 allowed, but did not require, an officer who makes an initial stop of a vehicle at a sobriety checkpoint to divert the vehicle to a secondary screening area for further inquiry when the officer has a reasonable suspicion, based on articulable facts, that the driver is operating while under the influence of alcohol or drugs (OUI) or has committed another violation of law.”
The checkpoints were challenged in both Commonwealth v. Swartz, SJC -10426 (2009) and Commonwealth v. Murphy, SJC – 10287 (2009) on several points as violative of the Fourth Amendment and Article 14. It was on the point outlined above that “TRF-15 allowed, but did not require, an officer who makes an initial stop of a vehicle at a sobriety checkpoint to divert the vehicle to a secondary screening area” that the defendants challenged the merits of the plan as comporting with the procedures mandated by McGeoghegan. Under McGeoghegan the court had mandated that the selection of the motor vehicle to be stopped may not be arbitrary. By using the phrase indicating discretion on the part of the initial screening officer, the defendants argued that their screening was arbitrary and led to several questions argued.
Under Murphy “the first question presented is whether TRF-15 allows a constitutionally impermissible amount of discretion to the initial screening officers to select which drivers are diverted to secondary screening. 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.”
Under Swartz, “The first question presented is whether TRF-15 allows a constitutionally impermissible amount of discretion to the initial screening officers to select which drivers are diverted to secondary screening. This question is also the first question we decided today in Commonwealth v. Murphy, ante (2009), and we reach the same conclusion here as in that case: 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 the sobriety checkpoint here was an unconstitutional roadblock to search generally for contraband or criminal activity, because officers were directed to divert vehicles to secondary screening if they observed contraband or otherwise reasonably suspected a felony or narcotic law violation. We conclude that a sobriety checkpoint does not become a roadblock whose purpose is to search for evidence of drug trafficking and other contraband simply because officers are directed that, when looking for signs of intoxication, they are not to ignore contraband or evidence of criminal activity in plain view.”
Additionally, the written practices and guidelines of TRF-15 improved the overall effectiveness of the sobriety checkpoints goal. Additionally, in improving the effectiveness, they also managed to reduce the level of intrusiveness experienced by the motoring public resulting in a reduced risk of violating the Fourth Amendment and Article 14.
Attorney Ronald A. Sellon