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Posted by: Crvtte65

COMMONWEALTH vs. Evan L. BRIAND (and a companion case [FN1]).
No. 07-P-606.
December 6, 2007. - February 1, 2008.
Search and Seizure, Automobile. Constitutional Law, Search and seizure.

COMPLAINTS received and sworn to in the Eastern Hampshire Division of the District Court Department on July 5, 2006.

Pretrial motions to suppress evidence were heard by W. Michael Goggins, J., and a motion for reconsideration was also heard by him.

An application for leave to prosecute an interlocutory appeal was allowed by John M. Greaney, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.

Judith Ellen Pietras, Assistant District Attorney, for the Commonwealth.

Sarah E. Dolven (William A. Volk with her) for Carrie A. Clark & another.

Present: Kantrowitz, Dreben, & McHugh, JJ.

DREBEN, J.

This is an interlocutory appeal by the Commonwealth authorized by a single justice of the Supreme Judicial Court pursuant to Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), following the allowance of the defendants' motions to suppress evidence obtained by the Massachusetts Environmental Police. We reverse.

The only witness at the hearing on the motion to suppress was Sergeant Charles Ziemba. As found by the judge, and as supplemented by uncontested details, the circumstances were as follows. On July 2, 2006, at about 11:30 P.M., on entering the Swift River boat ramp and parking area, Sergeant Ziemba saw a single vehicle, a green pickup truck, without lights, parked in a cul de sac. He pulled up within fifteen feet of the truck and saw that there was a male in the driver's seat and a female in the front passenger seat. He observed miscellaneous items on the ground in the general proximity of the truck, specifically a beer can, some sunglasses, and some papers. Ziemba activated his white "take down lights," [FN2] and got out of his cruiser and approached the truck. As he did so, he noticed a furtive gesture by the driver and something being thrown out of the driver's window. As he neared the defendants, Ziemba smelled marijuana emanating from the truck. He ordered the defendants to place their hands on the dashboard, called for back up, and subsequently asked the defendants to leave the truck. On the floor of the truck, he saw a bag of marijuana and a pistol. Upon being searched, additional contraband items were found on the defendants.

Ziemba testified that the cruiser did not block the truck in any way and that the driver could pull around the cruiser very easily. [FN3]

In his memorandum and order, the judge distinguished Commonwealth v. Leonard, 422 Mass. 504, cert. denied, 519 U.S. 877 (1996), and noted that the case was closer to Commonwealth v. Smigliano, 427 Mass. 490 (199, as there were here no facts to indicate that the defendants needed assistance. He found that "the totality of the circumstances clearly suggest the defendant[s were] not free to ignore the ... inquiry," and ruled that

"a seizure occurred when Ziemba pulled up closely to the defendant[s] and activated his cruiser's take down lights onto the defendant[s].... The fact that the lights in Smigliano were blue and here they were white is a classic case of a distinction without a difference."

Since the Commonwealth had produced no facts that rose to the level of reasonable suspicion prior to the activation of the lights, the judge allowed the motions to suppress.

A review of the cases in Massachusetts and elsewhere indicates that there is, however, a difference between lights used for illumination and blue lights, flashers, or sirens. [FN4] See Commonwealth v. Grandison, 433 Mass. 135, 136, 138 (2001) (use of cruiser's high beams and bright "alley lights" did not constitute a seizure after police followed defendant for purpose of surveillance). As stated in Commonwealth v. Oreto, 20 Mass.App.Ct. 581, 584 (1985), it is an "established principle that the use of artificial light to illuminate the open interior of an automobile does not constitute a search." While noting that alley lights are "more probing than a flashlight," we concluded in Oreto, supra, that they "are no different from the latter in a case involving a lawful police investigation" and held that "the use of the alley lights at 3:50 A.M. to make the same observations that could have been made in the daylight did not intrude on the defendants' constitutional rights." Id. at 586. The same reasoning is applicable here. See State v. Justesen, 47 P.3d 936, 939 (Utah Ct.App.2002) (take-down lights used "not as a show of authority, but to illuminate the area").

In this case, Ziemba did not block the defendant's truck, use blue lights, flashers, or sirens, display a weapon, or use threatening words or tone or other commanding authority such that "a reasonable person would have believed that he was not free to leave." [FN5] Commonwealth v. Cook, 419 Mass. 192, 199 (1994). See Commonwealth v. Hart, 45 Mass.App.Ct. 81, 84 (199, quoting from Commonwealth v. Pimentel, 27 Mass.App.Ct. 557, 560 (1989) (fact that the "average citizen questioned by the police does not necessarily feel free to walk away without responding" does not automatically result in a conclusion that he has been seized). Ziemba's use of take down lights to illuminate the area before approaching the vehicle did not constitute a seizure. To hold otherwise would discourage officers from using such lights when necessary for their safety or the safety of others. See Commonwealth v. Cavanaugh, 366 Mass. 277, 282 (1974) (flashlight). [FN6]

Cases elsewhere indicate that the use of artificial light, without more, does not effect a seizure. For a collection of cases, involving mostly spotlights, permitting such use and finding no seizure, see Campbell v. State, 841 N.E.2d 624, 628 (Ind.Ct.App.2006). See generally 1 LaFave, Search and Seizure § 2.2(b), at 461 (4th ed.2004).

The order allowing the motion to suppress is reversed and the matter is remanded to the District Court for further proceedings.

So ordered.


FN1. Commonwealth vs. Carrie A. Clark.


FN2. In a case certifying a question (not relevant to this appeal) from the First Circuit, Horta v. Sullivan, 4 F.3d 2, 6 n. 4 (1st Cir.1993), the Supreme Judicial Court in quoting from the First Circuit included a description
of "take down lights" as "small white lights affixed to the roof of the police cruiser and located in between two sets of flashing blue lights." Horta v. Sullivan, 418 Mass. 615, 618 n. 6 (1994).


FN3. The defendants' affidavits stated that the cruiser blocked their truck. The affidavits, however, were not introduced into evidence and the motion judge in discussion with counsel indicated that they had no evidentiary value. Counsel for Briand indicated that he understood.


FN4. In Commonwealth v. Evans, 436 Mass. 369, 372-373 (2002), the Supreme Judicial Court held that the use of blue lights did not effect a seizure where the police were engaged in a community caretaking function.


FN5. There was no seizure before Ziemba ordered the defendants to place their hands on the dashboard. At that time because of the smell of marijuana, he had probable cause to arrest them.


FN6. In Cavanaugh, 366 Mass. at 281, the court quoted from Dorsey v. United States, 372 F.2d 928, 931 (D.C.Cir.1967), "If policemen are to serve any purpose of detecting and preventing crime by being out on the streets at all, they must be able to take a closer look at challenging situations as they
encounter them."

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Posted by: 94c

"a seizure occurred when Ziemba pulled up closely to the defendant[s] and activated his cruiser's take down lights onto the defendant[s].... The fact that the lights in Smigliano were blue and here they were white is a classic case of a distinction without a difference."

And there remains no accountability for a dumbass, moronic, district court judge.

Using your logic, muffinhead, if I'm driving down the road and I see white lights behind me, I've been seized?

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Posted by: celticsfan

Weak.

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Posted by: Wolfman

"W. Michael Goggins" - need we say more...

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Posted by: j809

I hope they appeal this.

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Posted by: Crvtte65

Quote:

Originally Posted by j809 I hope they appeal this.

They did already which is why it was at the SJC, the previous quote just didn't show the SJC ruling of:

Quote:

Ziemba's use of take down lights to illuminate the area before approaching the vehicle did not constitute a seizure. To hold otherwise would discourage officers from using such lights when necessary for their safety or the safety of others. See Commonwealth v. Cavanaugh, 366 Mass. 277, 282 (1974) (flashlight). [FN6]

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Posted by: Q5-TPR

At least the SJC got it right!!!!

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Posted by: j809

In Comm Vs Barbosa a 2000 case the Mass Courts of Appeals held that police use of a white halogen overhead lights for better illumination will not amount to a seizure.

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Posted by: mpd61

Quote:

Originally Posted by j809 In Comm Vs Barbosa a 2000 case the Mass Courts of Appeals held that police use of a white halogen overhead lights for better illumination will not amount to a seizure.

Yimmy!

You technically competent mutha YOU!!!!

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Posted by: j809

Now I really have to be Woody.

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Posted by: OCKS

Good case law,but even if it went the other way wouldn't we all do the same thing the same way anyway.

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Posted by: snapbox

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Posted by: Wolfman

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