Commonwealth v. Rodriguez

Lynch, J.

(concurring). I write separately to reiterate my views on our search and seizure jurisprudence and to note an unfortunate inconsistency between the court’s decision today and prior decisions affirming the constitutional validity of operating while under the influence roadblocks.

This court has recognized that the reasonableness of a seizure usually depends on facts which we measure against probable cause or reasonable suspicion that an individual has engaged in *587criminal activity. See Commonwealth v. Shields, 402 Mass. 162, 170 (1988) (Liacos, L, dissenting, with whom Lynch, J., joined); Commonwealth v. McGeoghegan, 389 Mass. 137, 139 (1983). I have consistently maintained that this test should be applied to seizures occurring in the course of automobile roadblocks. See Commonwealth v. Shields, supra at 169, 177-178; Commonwealth v. Trumble, 396 Mass. 81, 98-99, 102 (1985) (Lynch, L, dissenting, with whom Liacos, J., joined). I accept, as I must, that both the United States Supreme Court and this court have supplanted this traditional rule with the illusive standard of a balancing approach that weighs the public interest against the individual’s right to personal security free from arbitrary interference by law enforcement officials. The virtue of this balancing approach, in the court’s view, is its relaxation of the requirement of individualized suspicion for a warrantless search and seizure when this would serve ostensibly “pressing public purpose[s],” such as protecting the public from serious and immediate threats to its safety and welfare. See ante at 580-581. The vice of such a test is that it permits a standardless interference with important constitutional protections of individual rights. I have argued, with particular reference to operating while under the influence roadblocks, that the Commonwealth should at a minimum be required to prove that a chosen procedure for stopping and searching citizens without reasonable suspicion achieves “a degree of law enforcement and [public] safety that is not reasonably attainable by less intrusive means.” Commonwealth v. Trumble, supra at 98-99 (Lynch, J., dissenting), quoting Commonwealth v. McGeoghegan, supra at 143-144.1 Alternatively, I have argued that, if we are to balance the scales in our search and seizure cases, we must do so consistently, treating like cases alike; we must fairly and realistically evaluate the extent to which various search procedures *588intrade on personal privacy, and avoid distinguishing arbitrarily among the various public purposes which might be cited by law enforcement officials to justify the extraordinary act of randomly seizing and searching law-abiding citizens without particularized suspicion of criminal activity. See Horsemen’s Benevolent & Protective Ass’n v. State Racing Comm’n, 403 Mass. 692, 708-710 (1989) (Lynch, 1, dissenting). In connection with this latter point, I have observed that “the pervasive harmful influence of drugs on contemporary society cannot seriously be denied. It presents a social problem of at least equal magnitude to operating a motor vehicle under the influence of alcohol.” Id. at 709.

Precisely because I concur with the court’s conclusion today concerning roadblocks to interdict contraband, I reiterate my position, first advanced in Commonwealth v. Trumble, supra at 98-102, that operating while under the influence roadblocks are similarly offensive to the protections afforded individual liberty and personal privacy by art. 14 of the Massachusetts Declaration of Rights. The distinction which the court attempts to draw in part 3, ante at 582-584, between roadblocks designed to remove drunk drivers from the roadways and those aimed at curbing the flow of illegal drags or other contraband is, in my view, untenable. The court makes some effort to ground this distinction in the greater intrasiveness of the search entailed by a narcotics interdiction roadblock. See ante at 583 (describing operating under the influence roadblocks as occasioning “minimal and focused intrusion”). But this ground is illusive: the court’s assertion to the contrary notwithstanding, an operating under the influence roadblock is most assuredly nothing other than “a generalized search for evidence of criminal activity [i.e., violations of G. L. c. 90, § 24] conducted without probable cause or reasonable suspicion.” Ante at 583-584. The crux of the court’s proposed distinction, however, consists in its twin assertions that narcotics interdiction roadblocks, unlike operating while under the influence roadblocks, serve exclusively criminal justice goals and that the threat to the public from illegal drags, while admittedly serious, is less immediate and more tenuous than the threat to public safety posed by drunk drivers. See ante at 583-584. But such assertions overlook the magnitude of the contemporary social evils linked to the trafficking in and use of illegal drugs. Furthermore, experience tends to demonstrate that most people engaged in the illegal transportation of controlled substances are users themselves. It *589cannot be doubted that the danger to the public arising from the operation of motor vehicles on the highways of the Commonwealth by intoxicated persons is the same regardless of the substances that caused their intoxication. In short, the court, it seems to me, has here fastened on a distinction that lacks a difference. Even more importantly, the court’s reasoning today further illustrates how ephemeral a balancing approach is when founded on debatable and changeable evaluations of society’s most pressing needs and problems and, therefore, how unsuitable it is as a touchstone for the reasonableness of a warrantless search and seizure.

Because I see no principled distinction between operating while under the influence roadblocks and roadblocks designed to interdict illegal drugs or other contraband, I believe that they should be accorded equal treatment by this court. Absent probable cause or reasonable suspicion of criminal activity, both forms of warrantless search and seizure should be held constitutionally invalid.

The court, however, rejected the “less intrusive alternative” requirement as unduly burdensome to government. See Commonwealth v. Shields, 402 Mass. 162, 166 (1988). Instead, the court substitutes adherence by law enforcement officials with the criteria established in Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144 (1983). See Commonwealth v. Anderson, 406 Mass. 343, 347 (1989); Commonwealth v. Shields, supra at 164-165; Commonwealth v. Amaral, 398 Mass. 98, 99-101 (1986); Commonwealth v. Trumble, 396 Mass. 81, 87, 89-90 (1985). It has apparently been somehow overlooked that the less intrusive alternative requirement as a prerequisite to constitutional road blocks is a concept the court employed in Commonwealth v. McGeoghegan, supra at 143-144. Cf. Commonwealth v. Shields, supra at 168.