NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
16-P-783 Appeals Court
COMMONWEALTH vs. JAMIE BAKER.
No. 16-P-783.
Plymouth. March 8, 2017. - May 4, 2017.
Present: Grainger, Blake, & Neyman, JJ.
Constitutional Law, Search and seizure, Roadblock by police.
Search and Seizure, Motor vehicle, Roadblock by police.
Motor Vehicle, Operating under the influence. Practice,
Criminal, Motion to suppress.
Complaint received and sworn to in the Brockton Division of
the District Court Department on May 27, 2014.
A pretrial motion to suppress evidence was heard by
Julieann Hernon, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Barbara A. Lenk, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.
Keith A. Garland, Assistant District Attorney, for the
Commonwealth.
Bethany J. Rogers for the defendant.
GRAINGER, J. Defendant Jamie Baker, charged in the
District Court with operating while under the influence of
2
alcohol, see G. L. c. 90, § 24(1)(a)(1), and negligent
operation, see G. L. c. 90, § 24(2)(a), moved to suppress
evidence of his intoxication, arguing that the evidence was
secured from a sobriety checkpoint not conducted in strict and
absolute compliance with the written operational plan (the
plan). After his motion was allowed, the Commonwealth was given
leave by a single justice of the Supreme Judicial Court to
pursue this interlocutory appeal. The Commonwealth argues that
the motion judge erred in suppressing the evidence and we agree.
We recite the pertinent facts found by the motion judge.
Police Captain Thomas Majenski was directed by police Major
Anthony Thomas to conduct a saturation patrol and sobriety
checkpoint with a detail of State troopers and police officers
from the town of Abington (the town). The plan stated that the
roadblock would begin at 11:30 P.M. Major Thomas directed that
all officers report for the training and briefing session prior
to the checkpoint. Captain Majenski was directed to command the
detail for the roadblock. Three officers1 arrived after the
roadblock commenced. Upon their arrival, Captain Majenski
briefed them.
During the roadblock, the defendant was pulled over and
greeted by Sergeant Kevin Cutter of the town police. Sergeant
Cutter observed signs of intoxication in the defendant and
1
Troopers Kyle Duarte, Carly Timmons, and Andrew Hamilton.
3
directed him to the "pit" area. The defendant refused "to drive
the vehicle." He then was escorted from the vehicle to the pit
area where Officer Justin Simmons of the town police asked him
to perform sobriety tests. After the tests, the defendant was
placed under arrest.
Upon completion of the roadblock, officer activity reports
were not submitted by any of the town police officers2 or by four
of the State troopers. One officer present at the roadblock
failed to sign the duty roster affirming that he had reviewed
the plan and the State police General Order TRF-15, which
governed sobriety checkpoints. The motion judge concluded that
the Commonwealth failed to demonstrate that the roadblock was
conducted in strict compliance with the plan.
Discussion. We determine independently whether the judge
correctly applied constitutional principles to the facts as
found. Commonwealth v. Ocasio, 434 Mass. 1, 4 (2001). "[F]or
sobriety checkpoints to be reasonable under the Fourth Amendment
[to the United States Constitution] and art. 14 [of the
Massachusetts Declaration of Rights], '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
2
As previously stated, the officer who greeted the
defendant and the officer who conducted the sobriety tests were
members of the town police.
4
pursuant to a plan devised by law enforcement supervisory
personnel.' . . . Police officers may not . . . have discretion
to target which vehicles to stop." Commonwealth v. Murphy, 454
Mass. 318, 323 (2009). In sum, "[t]he constitutional
jurisprudence regarding roadblocks in general, and sobriety
checkpoints in particular, has focused on the reasonableness of
the initial stop of a vehicle, which constitutes a seizure
without individualized suspicion." Id. at 324-325.
The judge concluded that the roadblock deviated from the
plan in four respects: (1) a number of officers arrived after
the reporting time detailed in the plan, (2) while Captain
Majenski was briefing the late officers, he was not performing
supervisory duties as instructed, (3) one trooper, who was not
the officer involved with stopping the defendant's vehicle, did
not sign the duty roster affirming he had reviewed the plan and
other relevant documents, and (4) after the roadblock was
completed, several officers failed to submit a report as
required by the plan.
We conclude, however, that none of these deviations
introduced constitutionally prohibited "arbitrariness and
discretion" into the actions of the screening officer (Sergeant
Cutter). Commonwealth v. Anderson, 406 Mass. 343, 349 (1989).
Indeed, the defendant declined to challenge the particular basis
for which he was stopped and asked to perform sobriety tests.
5
Discrepancies with the plan do not necessarily convert a
vehicle checkpoint into a constitutionally unreasonable seizure.
See Commonwealth v. Aivano, 81 Mass. App. Ct. 247, 250-251
(2012) (discrepancy between actual location of roadblock and
description in press release did not make roadblock
constitutionally unreasonable seizure). The roadblock started
on time with the minimally required number of officers, per
Major Thomas's directive. The officers who interacted with the
defendant had arrived on time. Furthermore, § 5.1 of the State
police Division Commander's Order 13-DFS-008, which governed
highway safety programs, allows the possibility of officers
arriving after the roadblock has been established.3 Section 5.1
also authorized Captain Majenski, as the supervisor, to brief
the officers after their arrival. We therefore conclude that
the late arrivals and Captain Majenski's briefing did not render
the roadblock unconstitutional.
Although one State trooper failed to sign the duty roster,
there was no indication that this trooper had not been briefed
appropriately or was unaware of his responsibilities under the
plan as he turned in the required officer activity report. The
failure of four State troopers and all of the town police
3
This order states that for sobriety checkpoints, "a
secondary briefing of officers not in attendance at the pre-
saturation phase roll-call may be conducted prior to his/her
participation in the sobriety checkpoint."
6
officers to fill out officer activity reports at the completion
of the roadblock also did not introduce the use of discretion
during the actual roadblock.
In sum, none of the deviations cited by the defendant
"introduce[d] an opportunity for discretionary departure by law
enforcement in the field from the dictates of the plan." Id. at
250. Additionally pertinent here is the fact that the
discrepancies did not have any effect on the defendant, and did
not violate any of his personal rights. See Commonwealth v.
Ocasio, 434 Mass. at 4. Contrast Commonwealth v. Anderson,
supra at 349-351 (defendant stopped fifteen minutes after
scheduled end of roadblock suffered actual harm as result of
deviation from plan). The order allowing the defendant's motion
to suppress is reversed and a new order shall enter denying the
motion.
So ordered.