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Commonwealth v. Blais11/3/1998
Suffolk.
September 2, 1998.
Search and Seizure, Probable cause, Consent. Constitutional Law, Search and seizure. Probable Cause. Motor Vehicle, Operating under the influence. Evidence, Intoxication, Field sobriety test.
Complaint received and sworn to in the Chelsea Division of the District Court Department on October 7, 1996.
A motion to suppress evidence was heard by Peter W. Agnes, Jr., J., and questions of law were reported to the Appeals Court by him. The Supreme Judicial Court transferred the case on its own initiative.
Having denied the defendant's motion to suppress the results of standard roadside field sobriety tests, a District Court Judge, in substance, reported the following questions to the Appeals Court pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979): (1) whether conducting such tests constitutes a search that may be undertaken only where there is probable cause to arrest; and (2) whether a person may be taken to have consented to such tests only if first specifically advised that he has a right to refuse to perform them. We transferred the case to this court on our own motion. We affirm the denial of the motion to suppress and answer both questions in the negative.
I.
A State trooper saw the defendant's automobile traveling above the speed limit with only one headlight illuminated. The automobile stopped at a restaurant. The officer pulled in behind the automobile and approached the defendant, who was the operator and sole occupant. The officer told the operator that he had observed him speeding and requested his license and registration. The officer noticed a strong odor of alcohol and Judged that the defendant's eyes were "red and glassy" and that his speech was slurred. The officer asked whether the defendant had been drinking, and he answered that he had had "a couple of beers." The officer asked the defendant to step out of the car and perform four standard field sobriety tests: the walk and turn test, the one leg stand test, the alphabet recitation test, and the horizontal gaze nystagmus test. See Commonwealth v. Sands, 424 Mass. 184, 186-187 (1997) (describing horizontal gaze nystagmus test). On the basis of the defendant's performance the officer concluded that the defendant had been operating the automobile while under the influence of alcohol and arrested him. The District Court Judge found that the officer did not suspect that the defendant was drunk at the time he had observed him speeding and had not made up his mind to arrest the defendant until after the performance of the tests. He also found that the officer had "addressed the defendant in a conversational tone and made no overt gestures or threats concerning [the defendant's] decision to take the tests." The Judge found that the time required for the administration of the tests was from three to five minutes.
Invoking both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the defendant moved to suppress the results of the field sobriety tests. He claimed that the tests constituted a search and seizure that could validly be performed only if there was probable cause to arrest him, and that the defendant cannot be taken to have consented to take these tests unless he had been specifically advised that he could refuse to take them. In a carefully reasoned decision which canvassed the law in this and other jurisdictions, the Judge disagreed with both contentions and denied the defendant's motion. Noting the strong interest in a definitive resolution of these questions and the existence of several trial court decisions reaching a different Conclusion, the Judge re
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