|||Massachusetts Supreme Judicial Court
|||430 Mass. 577, 722 N.E.2d 429, 2000.MA.0042015 <http://www.versuslaw.com>
|||January 18, 2000
|||COMMONWEALTH V. HECTOR RODRIGUEZ.
|||Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.
Geri Laventis for the defendant. Carol A. Donovan, Committee for Public
Counsel Services, & William C. Newman, for Committee for Public Counsel
Services & another, amici curiae, submitted a brief.
|||Present: Marshall, C.J., Abrams, Lynch, Greaney, & Ireland, JJ.
|||The opinion of the court was delivered by: Abrams, J.
|||September 13, 1999.
|||Constitutional Law, Search and seizure, Roadblock by police. Search and
Seizure, Automobile, Roadblock by police. Controlled Substances.
|||Complaint received and sworn to in the Holyoke Division of the District
Court Department on November 24, 1997.
|||A pretrial motion to suppress evidence was heard by Nancy Dusek-Gomez,
|||An application for an interlocutory appeal was allowed by Ireland, J.,
in the Supreme Judicial Court for the county of Suffolk, and the appeal
was reported by him to the Appeals Court. The Supreme Judicial Court on
its own initiative transferred the matter from the Appeals Court.
|||The Commonwealth appeals from an order suppressing evidence obtained from
a seizure of the defendant's motor vehicle at a drug interdiction roadblock.
At issue is whether the same policy concerns that make sobriety checkpoints
reasonable and therefore constitutional also exist with respect to drug
interdiction roadblocks. A District Court judge concluded that, under the
Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts
Declaration of Rights, the roadblock was unconstitutional. A single justice
of this court allowed the Commonwealth's application for an interlocutory
appeal. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501
(1996). After the case was entered in the Appeals Court, we transferred
it here on our own motion. We conclude that art. 14 prohibits roadblocks
to search for contraband such as drugs. We therefore affirm the order of
the District Court judge.
|||On the evening of November 21, 1997, State and local police established
a temporary roadblock in Holyoke to detect and deter trafficking in illegal
narcotics. The roadblock was set up in an area of the city that had a reputation
as a high crime area. Official guidelines stated that the purposes of the
roadblock were to confiscate illegal narcotics, to apprehend persons transporting
illegal narcotics in motor vehicles, and to deter illegal narcotics trafficking.
Fifty-eight vehicles were stopped at the roadblock. Approximately one of
every four drivers was directed to the "pit" area for further
questioning. The police made three arrests and issued two citations. The
defendant, Hector Rodriguez, was the only person arrested for a narcotics
|||After the defendant's vehicle, a Chevrolet Blazer, stopped at the roadblock,
Officer Patrick Cadigan shone a flashlight through the window of the vehicle
and observed an opened package of Philly Blunt cigars on the passenger seat.
According to the Commonwealth, Cadigan knew from his training and experience
that cigars are often used in smoking marijuana.
|||Cadigan told a second officer, Lieutenant Frederick Seklecki, what he
had seen. Leaning his head through the window of the Blazer, Seklecki sniffed
the interior. He smelled a "freshly smoked cigar type marijuana smell."
Seklecki then sent the defendant to a "pit" area a short distance
from the place of the stop. There, the police, after learning that the defendant's
driver's license had been suspended, placed him under arrest for the traffic
offense. Aided by a narcotics detection dog, the police searched the vehicle.
They discovered two small ends of cigars containing marijuana. The defendant
was charged with possessing a Class D substance and operating a motor vehicle
with a suspended license.
|||The defendant filed a pretrial motion to suppress evidence seized during
the roadblock. After an evidentiary hearing, the motion judge allowed the
defendant's motion to suppress. The Commonwealth filed a timely notice of
|||2. Constitutional principles.
|||We begin with basic principles of search and seizure jurisprudence common
to art. 14 and the Fourth Amendment. A seizure occurs under the Fourth Amendment
and art. 14 whenever a motor vehicle is stopped by an agent of government.
See Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450 (1990); Commonwealth
v. Anderson, 406 Mass. 343, 345 (1989). "Temporary detention of individuals
during the stop of an automobile by the police, even if only for a brief
period and for a limited purpose, constitutes a 'seizure' of 'persons'"
under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-810
(1996). See Sitz, supra at 450-451; Commonwealth v. McGeoghegan, 389 Mass.
137, 139 (1983) (applying protections of Fourth Amendment and art. 14).
|||Generally, searches and seizures must be conducted pursuant to a warrant
based on probable cause. See Fourth Amendment to the United States Constitution;
art. 4 of the Declaration of Rights of the Massachusetts Constitution. Where
obtaining a warrant is not practical, searches and seizures may be proper
if probable cause or reasonable suspicion exists. See Chambers v. Maroney,
399 U.S. 42, 51 (1970); United States v. Carroll, 267 U.S. 132, 149 (1925);
Commonwealth v. Anderson, supra at 347; Commonwealth v. Antobenedetto, 366
Mass. 51, 54 (1974).
|||Federal courts have created limited exceptions to the Fourth Amendment
requirement that seizures be based on probable cause or reasonable suspicion.
In Brown v. Texas, 443 U.S. 47 (1979), the United States Supreme Court employed
a balancing test to determine whether a particular seizure violates the
Fourth Amendment. In Brown, the Supreme Court invalidated a criminal statute
that required individuals to identify themselves to police when asked to
do so. The Supreme Court weighed three factors in assessing the reasonableness
of "seizures that are less intrusive than a traditional arrest":
" the gravity of the public concerns served by the seizure, 
the degree to which the seizure advances the public interest, and  the
severity of the interference with individual liberty." Id. at 50-51.
|||The Supreme Court has, on occasion, departed from this tripartite balancing
test. In Chandler v. Miller, 520 U.S. 305, 308 (1997), the Supreme Court
invalidated a Georgia law requiring certain candidates for public office
to be tested for certain drugs. Rather than use the Brown balancing test,
the Supreme Court noted that "exceptions to the main rule [requiring
individualized suspicion] are sometimes warranted based on 'special needs,
beyond the normal need for law enforcement'" (emphasis added). Id.
at 313-314, quoting Skinner v. Railway Labor Executives' Ass'n, 489 U.S.
602, 619 (1989). These special needs typically involve an immediate or particularly
serious risk to the public. "[W]here the risk to public safety is substantial
and real, blanket suspicionless searches calibrated to the risk may rank
as 'reasonable' -- for example, searches now routine at airports and at
entrances to courts and other official buildings. . . . But where . . .
public safety is not genuinely in jeopardy, the Fourth Amendment precludes
the suspicionless search, no matter how conveniently arranged" (citations
omitted).*fn1 Id. at 323.
|||Thus, except for the limited number of public safety intrusions that can
be justified under tests such as those set forth in Brown and Chandler,
"law enforcement officers must possess at least articulable suspicion
before stopping a vehicle."*fn2 United
States v. Huguenin, 154 F.3d 547, 553 (6th Cir. 1998). In Michigan Dep't
of State Police v. Sitz, supra, the Supreme Court applied the Brown balancing
test in a Fourth Amendment challenge to a roadblock set up to detect individuals
operating under the influence of drugs or alcohol. Id. at 450-455. The Supreme
Court concluded that sobriety checkpoints do not violate the Fourth Amendment
because of the public interest in keeping drunk drivers off the roads. Id.
|||Although we have not applied exactly the same analysis as Federal courts,
we have also allowed limited exceptions to the reasonable suspicion requirement
where an intrusion is limited and serves a pressing public purpose.*fn3
In Commonwealth v. McGeoghegan, 389 Mass. 137, 143-145 (1983), we first
indicated that sobriety checkpoints could be conducted in such a way as
to comply with constitutional constraints under both the Federal and State
constitutions. In Commonwealth v. Trumble, 396 Mass. 81, 86 (1985), although
we did not explicitly apply the Brown balancing test, we acknowledged that
"there exists a strong public interest in reducing the 'carnage caused
by drunk drivers.'" Id., quoting South Dakota v. Neville, 459 U.S.
553, 558 (1983). We noted that studies suggest that, "on any weekend
night in Massachusetts, between five and ten per cent of all drivers on
the road will be seriously impaired by alcohol." Id. at 87. We have
continued to recognize the immediate and grave danger posed by drivers who
operate under the influence of drugs or alcohol. See Commonwealth v. Shields,
402 Mass. 162, 167 & n.3 (1988). See also Michigan Dep't of State Police
v. Sitz, supra at 451 ("No one can seriously dispute the magnitude
of the drunken driving problem or the States' interest in eradicating it").
|||We have emphasized not only the unique nature of the problems caused by
those who drive while under the influence, but also the narrowness of the
exception to the warrant requirement that we carved out. In Commonwealth
v. Anderson, supra at 347, we stated that the "exception from usual
Fourth Amendment demands that has been made to accommodate fixed roadblocks
for detection of illegal aliens . . . and drunk drivers . . . is rather
exceptional and very limited. This court has carved a 'sui generis' exception
for the enforcement of G. L. c. 90, Sect. 24 . . . on the grounds that a
'reasonable' roadblock involves a 'minimal' State intrusion upon the reduced
privacy of drivers, one that is in any case outweighed by the strong public
interest in reducing the carnage caused by drunk drivers" (emphasis
added; citations omitted).
|||The theme of our roadblock decisions is that the exception for operating
while under the influence roadblock to reasonable suspicion requirements
is very narrow. Because of the limited scope of those decisions, we rejected
the "argument that the result we reach[ed] opens the door for suspicionless
searches and seizures in other contexts" and noted that "[p]olice
will not be allowed, for example, to cordon off 'high crime areas' and search
all the people on the street." Commonwealth v. Shields, supra at 167.
|||In the context of determining the constitutionality of operating while
under the influence roadblocks, our conclusions have, for the most part,
paralleled those of the Federal courts. However, we have indicated that
art. 14 might provide greater protection against the intrusions occasioned
by roadblocks than does the Fourth Amendment. In Commonwealth v. Shields,
for instance, we noted that, "[a]lthough the Supreme Court has indicated
that roadblock seizures to enforce license and registration regulations
do not violate the Fourth Amendment, Texas v. Brown, 460 U.S. 730, 739 (1983),
it may well be, given the much lower state interest in assuring compliance
with license and registration regulations, that roadblocks for that purpose
are not permissible under art. 14." Commonwealth v. Shields, supra
at 167 n.3. See id. at 164 n.1. We next consider whether drug interdiction
roadblocks may be distinguished from operating while under the influence
|||3. Characteristics of drug interdiction roadblocks.
|||Our discussion is limited to drug interdiction roadblocks because they
are at issue here. Because there is no principled way to distinguish between
drugs, unlawful guns, pornography, and other contraband, the general principles,
set forth infra, apply to all roadblocks to interdict contraband.
|||The Commonwealth argues that "roadblocks limited to countering the
pernicious effects of drug trafficking are just as important as roadblocks
designed to eradicate the drunk driving problem." *fn4
Because of the similarities between drug interdiction roadblocks and operating
while under the influence roadblocks, the Commonwealth concludes, drug interdiction
roadblocks are constitutional. We disagree. We think that there are major
differences between operating while under the influence roadblocks and drug
|||The crucial distinction between drug interdiction and operating while
under the influence roadblocks is that the purpose of narcotics interdiction
checkpoints is "the discovery of evidence of crime." Camara v.
Municipal Court, 387 U.S. 523, 537 (1967). Unlike the minimal and focused
intrusion occasioned by operating while under the influence roadblocks,
drug interdiction roadblocks are designed solely to further criminal justice
goals. For example, the Holyoke roadblock at issue was a "general program
of surveillance which invade[d] privacy wholesale in order to discover evidence
of crime." Edmond v. Goldsmith, 183 F.3d 659, 664 (7th Cir. 1999) (invalidating
roadblock program with sole purpose of interdicting narcotics).
|||Further, the relationship between operating while under the influence
and the public's safety on the roads is obvious and direct.*fn5
The damage caused by impaired drivers occurs on the public roads. Impaired
drivers present an immediate risk to the traveling public. Operating while
under the influence roadblocks offer immediate relief by removing a "deadly
menace" from the public roads. *fn6
Commonwealth v. Blais, 428 Mass. 294, 298 (1998). The corollary of these
observations is that an operating while under the influence roadblock is
not a generalized search for evidence of criminal activity conducted without
probable cause or reasonable suspicion.
|||Unlike operating while under the influence, trafficking in illegal narcotics
involves a wide variety of transportation modes. See, e.g., Commonwealth
v. Thibeau, 384 Mass. 762, 763 (1981) (recognizing "an increasing use
of bicycles to transport illegal drugs"). Thus, narcotics interdiction
is not inextricably connected with the public's use of the roads. See Merrett
v. Moore, 77 F.3d 1304, 1305 (11th Cir.) (Barkett, J., dissenting from denial
of petition for en banc rehearing), cert. denied, 519 U.S. 812 (1996) (harm
caused by drug traffickers is "completely unrelated to highway safety").
|||The nature of the harm caused by drug trafficking also differs from that
caused by drivers operating while under the influence. The drug problem
in the United States is certainly grave. "Drug-related deaths remain
near historic highs." Office of National Drug Control Policy, The National
Drug Control Strategy: 1999, 14. In 1996, 14,843 deaths in the United States
were induced by drugs. See id. at 15. However, the risk that narcotics trafficking
poses to the public is not immediate, as is the risk posed by a person operating
while under the influence.
|||Unlike operating while under the influence roadblocks, narcotics interdiction
roadblocks do not provide immediate protection to the public using the roadways.
Although apprehending narcotics traffickers may have an eventual impact
on the public safety, that impact will necessarily be more remote and tenuous
than the impact of removing impaired drivers from the road.
|||4. The constitutionality of drug interdiction roadblocks.
|||The defendant argues that the Holyoke drug interdiction roadblock was
an unconstitutional search and seizure under both the Fourth Amendment and
art. 14. As a general rule in deciding such questions, we look first to
any applicable statutes, then to our State Constitution (if argued separately),
and only if necessary to the Federal Constitution. We have held that art.
14 may provide greater protection than the Fourth Amendment against searches
and seizures. *fn7 We determine that roadblocks
for the purpose of searching for evidence of drug trafficking and other
contraband violate art. 14. Therefore, we do not address the defendant's
claim under the Federal Constitution.
|||Article 14 was drafted in response to the blanket search powers granted
to the British by "writs of assistance." "British search
policies generally are acknowledged to have spurred on revolutionary sentiment
in colonial Massachusetts. Opposition to the search policies centered upon
the use by British customs house officers of the writs of assistance, general
warrants which allowed officers of the crown to search, at their will, wherever
they suspected untaxed goods to be, and granted the officials the right
of forcible entry." Commonwealth v. Cundriff, 382 Mass. 137, 143 (1980),
cert. denied, 451 U.S. 973 (1981). See Boyd v. United States, 116 U.S. 616,
625 (1886). "The history should not require retelling. But old and
established freedoms vanish when history is forgotten." Screws v. United
States, 325 U.S. 91, 120 (1945).
|||Roadblocks established for the purpose of interdicting drugs and other
contraband essentially give to the police the same powers with respect to
individuals in their automobiles as the writs of assistance granted to the
British officials with respect to individuals in their homes. Viewed in
light of the Commonwealth's history, it is clear that the Holyoke roadblock
is precisely the type of search that the drafters of art. 14 sought to prevent.
Drug interdiction roadblocks stop citizens without probable cause or reasonable
suspicion to look for evidence of criminal activity (in colonial times,
untaxed goods). Such a search is precisely what James Otis and John Adams
sought to prevent by art. 14. "Those who do not remember the past are
condemned to relive it." G. Santayana, The Life of Reason: 1905-1906.*fn8
|||We conclude that this roadblock violated art. 14 and that the stop and
seizure of the defendant's vehicle was unconstitutional. Absent an emergency
or imminent threat to the lives and safety of the public, roadblocks to
interdict contraband violate art. 14. *fn9
|||The order of the District Court judge suppressing the evidence is affirmed
based on art. 14. This matter is remanded to the District Court for such
further proceedings as may be needed.
|||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 criminal activity. See Commonwealth v.
Shields, 402 Mass. 162, 170 (1988) (Liacos, J., dissenting, with whom Lynch,
J., joins); 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, J., dissenting, with whom Liacos, J., joins). 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 . 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.*fn10
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 intrude 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, J., 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 , between roadblocks designed to remove drunk drivers
from the roadways and those aimed at curbing the flow of illegal drugs or
other contraband is, in my view, untenable. The court makes some effort
to ground this distinction in the greater intrusiveness of the search entailed
by a narcotics interdiction roadblock. See ante at (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, Sect. 24] conducted
without probable cause or reasonable suspicion." Ante at . 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 drugs, while admittedly serious, is
less immediate and more tenuous than the threat to public safety posed by
drunk drivers. See ante at . 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 cannot 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
|||*fn1 Immigration and customs search
and seizure programs "depend ultimately on sovereign powers over foreign
relations, foreign commerce, citizenship, and immigration . . . that states
and cities do not possess" (citation omitted). Edmond v. Goldsmith,
183 F.3d 659, 664 (7th Cir. 1999). The purposes served by these sovereign
powers are different in character from most other interests that government
could assert in justification of a search or seizure. See United States
v. Montoya de Hernandez, 473 U.S. 531, 537-538 (1985).
|||*fn2 We note that roadblocks to apprehend
fleeing dangerous felons are among these exceptions. See, e.g., United States
v. Harper, 617 F.2d 35, 40-41 (4th Cir.), cert. denied, 449 U.S. 887 (1980).
|||*fn3 See, e.g., O'Connor v. Police Comm'r
of Boston, 408 Mass. 324 (1990) (upholding drug testing of police cadets
where cadets consent to testing); Commonwealth v. Trumble, 396 Mass. 81
(1985) (approving roadblock intended to catch drunken drivers); Commonwealth
v. Carter, 132 Mass. 12 (1882) (upholding provision of statute authorizing
milk inspectors to enter carriages used in conveying milk and authorizing
inspectors to seize and test milk specimens when they have reason to believe
that it is adulterated); Commonwealth v. Ducey, 126 Mass. 269 (1879) (upholding
provision of statute authorizing police to enter and inspect premises of
persons licensed to sell intoxicating liquors).
|||*fn4 The operating while under the influence
statute prohibits not only drunk driving, but also operating under the influence
of a number of substances, including narcotics. General Laws c. 90, Sect.
24 (1) (a) (1), in pertinent part, states: "Whoever, upon any way or
in any place to which the public has a right of access, or upon any way
or in any place to which members of the public have access as invitees or
licensees, operates a motor vehicle while under the influence of intoxicating
liquor, or of marijuana, narcotic drugs, depressants or stimulant substances,
all as defined in [Sect. 1] of [c. 94C], or the vapors of glue . . . ."
|||*fn5 In 1998, 15,935 persons died in
alcohol-related traffic crashes, defined as crashes in which a driver or
nonoccupant (for instance, a pedestrian) had a blood alcohol concentration
of 0.01 grams per deciliter or greater. See U.S. Dep't of Transp., National
Highway Traffic Safety Admin., Traffic Safety Facts 1998: Alcohol 1. One
hundred and ninety-two persons died in Massachusetts. See id. at 7. See
also U.S. Dep't of Transp., National Highway Traffic Safety Admin., Traffic
Safety Facts 1998: State Alcohol Estimates.
|||*fn6 In this respect, we view operating
while under the influence roadblocks as serving a purpose similar to that
of checkpoints at courthouses and airports. See, e.g., Commonwealth v. Harris,
383 Mass. 655, 656 (1981) (discussing the need for protective measures at
courthouses); United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974)
(discussing need for protective measures at airports). Thus, our analysis
parallels that of the United States Supreme Court in Chandler v. Miller,
520 U.S. 305, 308 (1997) (discussing "special needs" exception).
One might say that the need to remove impaired drivers from the public ways
is a "special need" beyond that of general law enforcement.
|||*fn7 We have held that art. 14 may provide
more protection than the Fourth Amendment to individuals in automobiles.
See Commonwealth v. Gonsalves, 429 Mass. 658, 688 (1999) (holding that art.
14 forbids police officer from ordering driver or passenger out of motor
vehicle incident to routine traffic stop unless officer reasonably believes
his safety or safety of others is in danger); Commonwealth v. Shields, 402
Mass. 162, 167 n.3 (1988) (noting that art. 14 may provide more protection
than Fourth Amendment to individuals in motor vehicles). We also have held
that art. 14 provides broader protections than the Federal Constitution
in other contexts. See Commonwealth v. Stoute, 422 Mass. 782 (1996) (holding
that person is seized under art. 14 once police officer has initiated pursuit
of person with obvious intent of requiring him to submit to questioning);
Commonwealth v. Lyons, 409 Mass. 16 (1990) (holding that art. 14 forbids
use of totality of circumstances test for evaluating whether reasonable
suspicion exists to justify automobile stop); Commonwealth v. Amendola,
406 Mass. 592 (1990) (adopting "automatic standing" rule under
art. 14 allowing defendant to challenge constitutionality of search or seizure
even when defendant lacks expectation of privacy in place or object searched
or seized); Commonwealth v. Blood, 400 Mass. 61 (1987) (holding that art.
14 forbids warrantless electronic surveillance of conversation where only
one party to conversation has consented to surveillance); Commonwealth v.
Upton, 394 Mass. 363, 373 (1985) (holding that "art. 14 provides more
substantive protection to criminal defendants than does the Fourth Amendment
in the determination of probable cause").
|||*fn8 Because we conclude that the seizure
of the defendant's vehicle violated art. 14, we do not reach the Commonwealth's
contention that Cadigan's observation of the cigars gave Seklecki either
probable cause or reasonable suspicion that justified Seklecki's leaning
his head through the window of the defendant's vehicle. Cf. Commonwealth
v. Podgurski, 386 Mass. 385 (1982), cert. denied, 459 U.S. 1222 (1983) (officer
"searched" windowless van when he inserted his head into interior).
|||*fn9 The concurrence correctly notes
that our previous decisions on the constitutionality of driving while under
the influence checkpoints employed a balancing test similar to Brown v.
Texas, 443 U.S. 47 (1979). See, e.g., Commonwealth v. Anderson, 406 Mass.
343 (1989); Commonwealth v. Shields, supra. By contrast, here we do not
use a balancing test because there is no imminent threat to public safety
and no nexus between the activity (driving) and the law enforcement objective
(narcotics interdiction). Because there is no connection between the driving
and the interdiction, there is no reason to employ a balancing test. There
is nothing to balance. The Commonwealth's conduct is unconstitutional under
|||*fn10 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.
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