Commonwealth v. Leonard

Fried, J. Anne Leonard, the defendant, claims that her rights protected by art. 14 of the Declaration of Rights of the Massachusetts Constitution and the Fourth Amendment to the United States Constitution were abridged when a State trooper opened her automobile door without her permission. The District Court judge agreed and suppressed all evidence acquired after what he concluded was an improper intrusion. A single justice of this court allowed the Commonwealth’s — 505 — application for interlocutory review and referred the case to the Appeals Court. We transferred the case here on our own motion, and now reverse. The only evidence before the District Court judge was Trooper David E. Ford’s police report. We set out the relevant portions, only expanding the abbreviations. “At approx. 0100 hrs. on 05-14-94 this [trooper] observed a 1982 Dodge [sedan], color blue, Ma. [registration] 659-CTF operating on Storrow Dr. [westbound] before the Lagoon area. As I pulled alongside this vehicle, to pass same, the [motor vehicle] pulled into the breakdown area adjacent to the Lagoon. This [trooper] observed a white female, approx. 50-60 yrs. of age [operating] said [motor vehicle]. As I was now beyond the cut-out area and the [motor vehicle] traffic was heavy behind me I continued on to the Bowker Overpass where I made a U-tum, exited at the Govt. Center exit and headed [westbound] to the [motor vehicle] in question. At this time I pulled my cruiser alongside the [motor vehicle] and activated my blue lights. After several attempts at using the PA system and air-horn to gain the attention of the female operator, to no avail, I backed my cruiser into the cut-out. At this point I approached the [motor vehicle] on the driver[’]s side and knocked on the driver[’]s window approx. 3-4 times. When no response to my knocking elicited any response from the operator, I opened the driver[’]s door. At this time the female [operator], whom I recognized from my previous passing, looked up at me & said ‘what the fuck do you want’. I then asked [subject] what was wrong. She stated ‘what the fuck do you care’. At this time I asked [subject] for her license & [registration], which she eventually produced after a couple of minutes of searching her pocketbook. During this time I observed a strong odor of liquor coming from [subject’s] breath, as I was only inches away from her face. This [trooper] then asked [subject] how many drinks she had had. [Subject’s] response was T don’t drink you bastard.’ ” Ford then told Leonard to step outside the vehicle, which she refused to do. With the help of another trooper who had just arrived on the scene Ford forcibly removed her. She resisted and was physically and verbally abusive. Leonard was informed that she was being placed under arrest and was brought to police headquarters where she was booked and charged with operating a vehicle while under the influence of alcohol and disorderly conduct. — 506 — The District Court judge suppressed all evidence of Leonard’s intoxication and disorderly conduct on the ground that the evidence was Obtained after Trooper Ford had opened the door to Leonard’s automobile and that Trooper Ford’s opening that door violated Leonard’s rights under art. 14 and the Fourth Amendment.1 In our view, Trooper Ford was doing his duty as he patrolled the highway to inquire whether the driver of the automobile was ill or in some other kind of difficulty. This reflex is so naturally helpful and so appropriate to his duties that Leonard’s repeated failure to respond in any way to Ford’s attempts to attract her attention could only excite further concern on his part. When she did not respond — not with a gesture, a smile, or a nod of the head — to his taps on her window, the circumstance must have appeared even more unusual and the possibility that the driver was seriously ill much more likely. At this point he opened her automobile door; and if that was a reasonable and legally permissible thing to do, the evidence he discovered should not have been excluded. It is a premise of the District Court judge’s reasoning that by opening the automobile door Trooper Ford invaded Leonard’s constitutionally protected privacy rights and so required prior justification under the Fourth Amendment and art. 14. And since there was not even a reasonable suspicion that a crime had been committed — and the Commonwealth claims none — the judge was well on his way to the conclusion that there was here a violation of constitutional rights. The judge considered that only our reasoning in Commonwealth v. King, 389 Mass. 233 (1983), might deflect him from that conclusion. In that case we considered an encounter with a station wagon parked, its engine running, in a rest area on a cold winter night. The encounter began with an inquiry, proceeded by the police blocking the station wagon’s departure, and escalated to a gun fight. In King, we stated that “[t]he investigatory check of a parked vehicle during winter months, regardless of its limited purpose and brevity, — 507 — is an intrusion on privacy rights.” Id. at 241. “The initial inquiry [however] was for an entirely different purpose from the detection or investigation of possible violations of criminal statutes or violations of vehicle use regulations. . . . The purpose of the investigatory check was to determine whether there was a need by the State trooper to render assistance or aid.” (Citations omitted.) Id. at 242. For the District Court judge, however, King was not enough to justify the trooper’s action here. Always assuming that Trooper Ford’s opening of the automobile door went beyond the kind of interaction between police and private parties that requires no articulable suspicion or any justification at all, Terry v. Ohio, 392 U.S. 1, 19 (1968), the District Court judge read our decision in King to justify such investigatory intrusions only if undertaken pursuant to some policy mandating a check on all vehicles in similar situations. In King, supra at 242, we did say: “The very limited and focused inspection of a vehicle to determine whether assistance or aid is required is a minimal intrusion on the occupant’s, or owner’s, expectation of privacy. The situation here does not involve a random stop causing concern, fright, or anxiety. ... It does not involve a situation where a more limited alternative is possible or where there is no constraint on the discretion of the law enforcer. . . . The policy required every stopped and parked car to be inspected. The policy limited the intrusion only to that time period when the hazards arise.” (Citations and footnote omitted.) Remarks in our decision in Commonwealth v. Helme, 399 Mass. 298, 302 (1987) (“The policy of investigating parked automobiles with interior lights on is too broad to justify even the limited intrusion of approaching the car to determine ‘if everything is all right’”), supported the judge’s reading. The District Court judge concluded that there must be “circumstances suggesting a medical problem . . . along with a police policy based upon a careful weighing of the public interest in intervention against the individual’s right to privacy and that severely limits police discretion.” Since there was no claim that Trooper Ford “was acting in accordance with an official policy of the state police . . . and [no] specific facts — 508 — and circumstances suggesting that the defendant was engaged in criminal activity or injured,” the judge concluded that the trooper had no right to open the vehicle door. To begin with, it is not clear that anything Trooper Ford did up to and including opening the automobile door went beyond the kind of police-citizen interchange that constitutes no intrusion and requires no justification.2 See Terry, supra at 19 n.16 (“Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred”). See also Florida v. Bostick, 501 U.S. 429, 436 (1991) (no seizure when officers boarded bus and asked to inspect passenger’s baggage); Florida v. Rodriguez, 469 U.S. 1 (1984) (Fourth Amendment not implicated by inquiry of passenger at airport); INS v. Delgado, 466 U.S. 210 (1984) (no seizure during document check at factory); Commonwealth v. Doulette, 414 Mass. 653, 657 (1993); Commonwealth v. Sanchez, 403 Mass. 640 (1988); Model Code of Pre-Arraignment Procedure 257 (1975) (while law enforcement officers may not seek cooperation “in such a way as to imply an obligation to cooperate, if cooperation is forthcoming, the fact that it is in response to a police request should not render it suspect as coerced or involuntary”). Thus Terry itself makes clear that the sliding scale of reasonableness should not be taken to mean that every encounter between police and citizen initiated by the police must potentially be justifiable to a court. Up until the opening of the automobile door, which is the action in issue here, unlike both King, supra at 241, and Helme, supra at 299, there was no blocking of Leonard’s way, no show of force, in short nothing inconsistent with a routine inquiry requiring no justification in a court. Even if opening an unlocked vehicle door, where the police officer is acting out of concern for the well being of the person inside rather than on the basis of a suspicion of criminality, passes some constitutional threshold requiring constitutionally sufficient — 509 — justification, the District Court judge overreads our decisions as requiring that actions as reasonable as Trooper Ford’s are only permissible if taken pursuant to an explicit and perhaps even invariable policy. Leonard’s stopping when and where she did suggested that she was in difficulty. Her failure even to acknowledge Trooper Ford’s inquiry suggested that she may have been quite ill. At that point her automobile door is opened. Unlike the more intrusive actions exemplified in Delaware v. Prouse, 440 U.S. 648 (1979) (wholly discretionary investigatory stop of vehicle on highway); Commonwealth v. McGeoghegan, 389 Mass. 137 (1983) (roadblock sobriety test); or the blocking of the way exemplified in King and Helme, where the requirement of some articulated general policy was offered as a safeguard against arbitrary police action, what Trooper Ford did here was a minimally intrusive response to one of the myriad and uncategorizable events that may alert an officer that his assistance may be required. Although it is easy enough for us looking at this case after the fact to describe a category into which it might be placed, it would be a very lengthy and cumbersome rulebook indeed — or uselessly general one — that sought to anticipate and instruct a trooper in Ford’s position just what to do in the circumstances of every such particular case.3 If there was an intrusion here, it was justified as reasonable in the circumstances. Once the trooper was justified in making his entry into the car, anything he acquired within the scope of his inquiry is properly admissible in a court of law. Cf. King, supra at 243. Thus, the evidence gleaned after the door was opened — the odor of alcohol on Leonard’s breath and testimony as to her violent and abusive words and action — should not have been excluded. The District Court judge’s suppression order is reversed. So ordered. Footnotes [1] Although this court has decided that in some circumstances art. 14 provides greater protection than the Fourth Amendment, see, e.g., Commonwealth v. Blood, 400 Mass. 61, 74 (1987) (wiretaps); Commonwealth v. Upton, 394 Mass. 363 (1985) (confidential informants), the defendant has offered us no compelling reason to expand the protection of art. 14 here. [2] As the District Court judge noted, “The Commonwealth [argues] that this case falls into a special category of cases in which the police are justified in interfering with a motorist’s liberty without probable cause and without a warrant because there is reason to believe the motorist may be in need of assistance.” [3] Decisions in other jurisdictions, while not on all fours with the facts of this case, support this conclusion. See, e.g., United States v. Haley, 581 F.2d 723, 726 (8th Cir.), cert. denied, 439 U.S. 1005 (1978) (entry into automobile to “seek identification or medical alert cards which might be of assistance” to a man found unconscious nearby who did not appear to be either hurt or under the influence of alcohol); State v. Kersh, 313 N.W.2d 566 (Iowa 1981) (defendant slumped behind steering wheel did not respond to knocks on window). See also 3 W.R. LaFave, Search and Seizure § 7.4(f), at 570 n.142 (3d ed. 1996) (collecting cases).