Morais v. Yee

MORAIS_V_YEE.93-100; 162 Vt. 366; 648 A.2d 405

[Opinion Filed July 15, 1994]


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                No. 93-100


 Henri Morais & Claudette Morais              Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 Mark Yee, et al.                             February Term, 1994


 Stephen B. Martin, J.

 Deborah T. Bucknam and Lisa A. Warren Law Clerk (On the Brief), St.
  Johnsbury, and Philip R. Waystack and Clare M. Hinkley of Waystack
  & King, Colebrook, New Hampshire, for plaintiffs-appellants

 John A. Serafino and Allan R. Keyes of Ryan Smith & Carbine, Ltd.,
  Rutland, for defendants-appellees Yee, Tupper, Vermont State Police,
  Department of Public Safety, and the State of Vermont

 David A. Barra of Hill, Unsworth, Barra & Myers, Essex Junction, for
  defendants-appellees LaPointe and Town of Pittsburg, New Hampshire


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     ALLEN, C.J.   Plaintiffs Henri and Claudette Morais appeal the summary
 judgment granted to defendants in an action alleging negligence and
 violation of constitutional rights of their son, Denis Morais.  Plaintiffs
 contend that issues of material fact regarding the constitutional claims and
 defendants' entitlement to immunity from suit should have precluded the
 entry of summary judgment.  We affirm in part and reverse in part.
     On the evening of September 9, 1989, defendant Richard LaPointe, Chief
 of Police in the Town of Pittsburg, New Hampshire, received a report of an
 accident involving a single motorcycle with two passengers, one of whom was
 injured.  LaPointe was told the incident occurred on Old Canaan Road, but

 

 he was unsure whether the accident had occurred in New Hampshire or Vermont.
 He searched the New Hampshire portion of the road for accident victims, but
 found only some glass at one spot on the road.  LaPointe was continuing his
 search on Route 3 when he passed a motorcycle headed south toward the
 Vermont border.  The front wheel of the motorcycle was wobbling and the
 rider was not wearing eye protection as required under New Hampshire law.(FN1)
 Believing this to be the vehicle involved in the accident, LaPointe motioned
 the rider, Denis Morais, to stop.  Plaintiffs assert that LaPointe knew
 Morais, and offered evidence that the name "Morais" appeared in inch-high
 letters on the side of the motorcycle's gas tanks.  When Morais did not heed
 LaPointe's direction to stop, LaPointe turned on his lights and siren and
 pursued him across the bridge into Canaan, Vermont.
     Once in Vermont, defendant Mark Yee, a Vermont State Police trooper,
 joined in the chase by pulling his car between Morais and LaPointe.
 Plaintiffs assert that Yee also knew the Morais family, having spent
 considerable time in their local restaurant.  Morais led Yee and LaPointe
 along Route 114, a two-lane road.  Witnesses who saw the vehicles pass
 reported that the nearest cruiser was no more than five feet from Morais'
 motorcycle, and that Yee and LaPointe were following Morais closely and at
 too great a speed for Morais to stop safely.  Defendants maintain that they
 pursued Morais in a safe and reasonable manner.  The chase continued for
 nearly twenty-five miles at speeds variously reported between forty and
 sixty miles per hour; the chase lasted approximately one-half hour.
     At some point in the pursuit, defendant William Tupper, also a Vermont
 State Police Trooper, had been notified, and he awaited the motorcade's
 approach.  He positioned his cruiser ahead of Morais, straddling the center

 

 line of the road.  Tupper drove more slowly than the advancing vehicles, in
 what he described as an attempt "to contain the motorcycle between the
 cruisers."  Soon thereafter, they came to a sharp curve in the road.
 According to the troopers, the motorcycle tried to pass Tupper's cruiser,
 but in the process Morais lost control, left the road, and struck a rock
 outcropping, resulting in his death.
      Plaintiffs sought relief under 42 U.S.C. { 1983 (FN2) for violation of
 Morais' constitutional rights under the Fourth, Eighth and Fourteenth
 Amendments to the United States Constitution, and sought recovery in
 negligence for his wrongful death.  Defendants Yee, Tupper, the State of
 Vermont, the Vermont Department of Public Safety, and the Vermont State
 Police moved for judgment on the pleadings pursuant to V.R.C.P. 12(c).
 Defendants LaPointe and the Town of Pittsburg, New Hampshire, moved for
 summary judgment pursuant to V.R.C.P. 56(c).  The motions were considered
 together as motions for summary judgment.  See V.R.C.P. 12(c).
      The trial court granted defendants summary judgment on the { 1983
 claims against the State of Vermont, the Department of Public Safety, the
 Vermont State Police, and the individual defendants in their official
 capacities, none of which are "persons" subject to liability under { 1983.
 See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).  The
 court also entered summary judgment for the Town of Pittsburg on the { 1983

 

 claim, having determined that plaintiffs had failed to demonstrate
 constitutional rights violations which could serve as the basis of liability
 under a theory of respondeat superior.  Finally, regarding the common-law
 negligence claims, the court determined that defendants LaPointe, Yee and
 Tupper were entitled to qualified immunity, and entered summary judgment
 accordingly.
      Plaintiffs raise two issues on appeal.  First, they contend that the
 trial court erred in ruling that Morais had not suffered violations of his
 Fourth and Fourteenth Amendment rights.  Second, plaintiffs argue that
 issues of material fact should have prevented the trial court from finding
 that the individual defendants were entitled to qualified immunity from suit
 for alleged negligence.(FN3)
      To be granted summary judgment, the moving party must demonstrate the
 absence of a genuine issue of material fact, and that the moving party is
 entitled to judgment as a matter of law.  V.R.C.P. 56(c).  In the trial
 court's consideration of the motion, the party opposing the motion benefits
 from all reasonable doubts and inferences.  State v. Delaney, 157 Vt. 247,
 252, 598 A.2d 138, 141 (1991).  However, the opposing party may not simply
 rely on allegations in the pleadings to establish a genuine issue of
 material fact.  Murray v. White, 155 Vt. 621, 628, 587 A.2d 975, 979 (1991).
                                     I.
      Plaintiffs first argue that the trial court erred in granting
 defendants judgment on the { 1983 claims for alleged violations of Morais'
 constitutional rights.  Specifically, they contend that genuine issues of

 

 material fact exist as to whether police violated the decedent's Fourth
 Amendment right to freedom from unreasonable seizure, and his substantive
 due process rights under the Fourteenth Amendment.  The Fourth Amendment
 provides, in relevant part, that "[t]he right of the people to be secure in
 their persons . . ., against unreasonable searches and seizures, shall not
 be violated."  U.S. Const. amend. IV.  To establish a violation of the right
 to be free from an unreasonable seizure, plaintiffs bear the burden of
 demonstrating that Morais was "seized" within the meaning of the Fourth
 Amendment, and that the seizure was unreasonable.
      At the time of Morais' death, the United States Supreme Court had
 recently considered the question of whether police pursuit qualifies as a
 Fourth Amendment seizure in Brower v. County of Inyo, 489 U.S. 593 (1989).
 In deciding whether the decedent had been seized when he collided with a
 police roadblock after a high-speed chase, the Court differentiated that
 situation, in which the police create circumstances intended to produce a
 stop by physical impact, from a significant show of authority intended to
 induce a voluntary stop.  Id. at 598.  The Court held that "a Fourth
 Amendment seizure does not occur whenever there is a governmentally caused
 termination of an individual's freedom of movement . . ., but only when
 there is a governmental termination of freedom of movement through means
 intentionally applied."  Id. at 596-97.  A seizure requires "that a person
 be stopped by the very instrumentality set in motion or put in place in
 order to achieve that result."  Id. at 599.  Thus, no seizure occurs in the
 course of a police chase if the suspect unexpectedly loses control of the
 vehicle and crashes.  Id. at 597; accord California v. Hodari D., 499 U.S. 621, 628 (1991) (citing Brower, Court explains that possibility of seizure

 

 not considered if police showing of authority did not stop individual
 pursued).
      The affidavits offered by defendants in this case uniformly deny that
 police vehicles came into any contact with Morais in the course of their
 pursuit.  They also demonstrate the absence of any intention on the part of
 police to force Morais to leave the road and collide with the rock face.
 Plaintiffs challenge these affidavits with the affidavit of an accident
 reconstruction expert, who characterized the positioning of the three police
 cars just before Morais left the road as a "rolling roadblock."  After an
 initial investigation of the scene, the police reports and photographs, and
 the motorcycle, the expert offered a "preliminary opinion" that the
 motorcycle was damaged by an impact with an automobile.(FN4)

 

       Plaintiffs may rely on affidavits of experts to defeat a summary
 judgment motion, but the affidavit still must meet the Rule 56(e)
 requirement that the non-moving party present specific facts demonstrating a
 genuine issue for trial.  Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 92
 (1st Cir. 1993) (construing F.R.C.P. 56(e)).  If an expert presents
 "'nothing but conclusions -- no facts, no hint of an inferential process, no
 discussion of hypotheses considered and rejected,' such testimony will be
 insufficient to defeat a motion for summary judgment."  Id. (quoting Mid-
 State Fertilizer Co. v. Exchange Nat'l Bank, 877 F.2d 1333, 1339 (7th Cir.
 1989)).  Plaintiffs' affidavit presents only an admittedly preliminary
 opinion, unsupported by specific facts or any indication of how the opinion
 was formulated.  As such, plaintiffs cannot use its bare allegations to meet
 their burden of demonstrating a disputed matter of fact.  The rules
 regarding expert testimony cannot be skewed to preclude summary judgment any
 time a party secures an expert to support its claim.  Id.
      Lacking any other basis to support their theory, plaintiffs have
 failed to raise a sufficient issue of material fact to support the claim
 that police seized Morais in violation of his Fourth Amendment rights.
 Absent a seizure, plaintiffs cannot recover under { 1983 as a matter of law,
 and defendants are entitled to summary judgment on the Fourth Amendment
 claim.(FN5)

 

      Plaintiffs base their second { 1983 claim on an alleged violation of
 Morais' rights under the Fourteenth Amendment, which provides, in relevant
 part, that no State shall "deprive any person of life, liberty, or property,
 without due process of law."  U.S. Const. Amend. XIV, { 1.  For the first
 time on appeal, plaintiffs argue that even absent a seizure the police
 pursuit violated his substantive due process rights.  Because this argument
 was not made before the trial court, we do not consider it.  Fitzgerald v.
 Congleton, 155 Vt. 283, 295, 583 A.2d 595, 602 (1990).  We assess the
 substantive due process claim as plaintiffs presented it before the trial
 court.
      In their initial memorandum in opposition to the summary judgment
 motion and two supplemental response memoranda, plaintiffs discussed the
 alleged due process violation in terms of allegedly unreasonable use of
 deadly force in seizing Morais, citing Tennessee v. Garner, 471 U.S. 1
 (1985).  As plaintiffs acknowledged, Garner dealt only with the question of
 the reasonableness of what undisputedly was a seizure under the Fourth
 Amendment.  Id. at 7-9.  The United States Supreme Court has made clear,
 however, that claims of excessive force in the seizure of a free citizen
 must be analyzed as Fourth Amendment violations, not violations of
 substantive due process under the Fourteenth Amendment.  Graham v. Connor,
 490 U.S. 386, 395 (1989).  Hence, the substantive due process claim becomes
 a second Fourth Amendment claim; defendants merit summary judgment because,
 as discussed above, plaintiffs have failed to show that a seizure occurred.
      Plaintiffs have also claimed recovery under { 1983 against the Town of
 Pittsburg, New Hampshire, for an alleged failure to train LaPointe regarding

 

 the hazards of high-speed pursuits of suspects.  Having concluded that
 plaintiffs have not demonstrated violations of Morais' constitutional
 rights, we affirm summary judgment for the Town on the { 1983 claim.
                                     II.
      Plaintiffs also assert that genuine issues of material fact preclude a
 ruling that defendants LaPointe, Tupper and Yee are entitled to qualified
 immunity on the claims alleging gross negligence and recklessness.  We agree
 that defendants should not have been granted summary judgment on the state
 law claims, but conclude that qualified immunity does not apply in this
 case.  Qualified immunity is a judicially created doctrine that shelters
 state and municipal officials from suit for acts performed in the course of
 their duties.  Murray, 155 Vt. at 626, 587 A.2d  at 978;  Libercent v.
 Aldrich, 149 Vt. 76, 80, 539 A.2d 981, 984 (1987).  The doctrine reflects a
 sound compromise between compensating the injured and affording public
 officers such as police sufficient freedom to do their jobs.  Murray, 155
 Vt. at 626, 587 A.2d  at 978.  However, qualified immunity does not extend to
 situations in which the legislature establishes a clear duty and liability
 for a breach of that duty.
      According to 23 V.S.A. { 1015, a "law enforcement officer operating an
 authorized emergency vehicle in fresh pursuit of a suspected violator of the
 law" may disregard most of the rules and regulations for the operation of
 motor vehicles.  23 V.S.A. { 1015(a),(b).  The statute also provides,
 however, that these exemptions "shall not relieve the driver of an
 authorized emergency vehicle from the duty to drive with due regard for the
 safety of all persons, nor shall such provisions protect the driver from
 the consequences of his reckless disregard for the safety of others."  Id.
 { 1015(c).  The language clearly mandates that police officers may be held

 

 accountable when they fail to conform to this duty.  See Schatz v. Cutler,
 395 F. Supp. 271, 274 (D. Vt. 1975) (construing 23 V.S.A. { 1015).  Other
 jurisdictions have recognized a duty to conduct high-speed chases with due
 regard for the safety of all persons under substantially similar statutes.
 See, e.g., Lee v. City of Omaha, 307 N.W.2d 800, 803 (Neb. 1981); Zulauf v.
 State, 462 N.Y.S.2d 560, 562-63 (Ct. Cl. 1983).  These statutes embody a
 policy of balancing "the duty of law enforcement officers to apprehend
 violators of the law . . . with a duty of care to the general public as
 well."  Lee, 307 N.W.2d  at 803.
      Section 1015 applies to defendants Tupper and Yee, Vermont State Police
 officers.  As police chief in a New Hampshire municipality, LaPointe is not
 a Vermont law enforcement officer, but he nevertheless is subject to { 1015.
 Under New Hampshire law, LaPointe could have conducted fresh pursuit if he
 reasonably believed that Morais had committed a felony by leaving the scene
 of an accident involving personal injury.  See N.H. Rev. Stat. Ann { 614:7
 (1986).  A person who leaves the scene of such an accident without first
 reporting to police is guilty of a class B felony.  N.H. Rev. Stat. Ann
 { 264:29 (1993); see also id. { 264:25 (procedures required of persons
 involved in an accident).  Vermont law similarly provides that a person who
 leaves the scene of an accident resulting in serious personal injury commits
 a felony.  See 23 V.S.A. { 1128; see also 13 V.S.A. { 1 (defining felony).
 Like New Hampshire, Vermont permits a state law enforcement officer to
 conduct fresh pursuit of someone reasonably suspected of having committed a
 felony, see State v. Baldwin, 140 Vt. 501, 508, 438 A.2d 1135, 1138-39
 (1981), and extends that power to law enforcement officials of other states
 pursuing a suspected felon into Vermont, 13 V.S.A. { 5042.

 

      It is uncontested that LaPointe received a report of an accident
 involving a single motorcycle and resulting in injury to one of the riders.
 Not long after, he saw Morais on a motorcycle with a wobbling front wheel
 and motioned to him to stop, but instead Morais sped away.  On the
 undisputed facts concerning LaPointe's knowledge at the time pursuit
 commenced, we conclude that LaPointe reasonably believed that Morais had
 left the scene of an accident involving personal injury.  In engaging in the
 pursuit in Vermont, LaPointe acted as a Vermont law enforcement officer.
 Therefore, LaPointe is subject to the requirement of 23 V.S.A. { 1015 that
 the pursuit be conducted with reasonable safety.
      Affording plaintiffs the benefit of all reasonable doubts and
 inferences on this issue, we believe that sufficient material facts exist to
 preclude the grant of summary judgment on the negligence claims.  The
 officers knew that Morais was riding a motorcycle with a damaged front wheel
 at high speed.  They had no suspicion that Morais had committed a violent
 crime, and there is evidence that at least two of the officers knew Morais
 and his family, which suggests the chase may not have been necessary to
 apprehend Morais.  The chase covered twenty-five miles and lasted nearly
 one-half hour.  The affidavits submitted by the parties demonstrate
 considerable disagreement about how the pursuit was conducted, in particular
 the speed of the vehicles, the distance between the motorcycle and the
 cruisers, and the approach to the turn where Morais' motorcycle left the
 road.  In short, factual disputes, material to the determination whether
 defendants acted with reckless disregard in conducting the pursuit, preclude
 summary judgment.  Therefore, we reverse and remand for further proceedings
 on the state law claims against LaPointe, Yee, and Tupper.

 

      Summary judgment for defendants LaPointe, Tupper, Yee, and the Town of
 Pittsburg, New Hampshire on the claims of violations of constitutional
 rights is affirmed.  Summary judgment for defendants LaPointe, Tupper, and
 Yee on the negligence claims is reversed, and the cause is remanded.

                                    FOR THE COURT:


                                    _____________________________
                                    Chief Justice

-------------------------------------------------------------------------------
                           Footnotes

FN1.    See N.H. Rev. Stat. Ann. 265:123 (1993).


FN2.    Section 1983 provides, in relevant part:
     Every person who, under color of any statute,
 ordinance, regulation, custom, or usage, of any State .
 . ., subjects, or causes to be subjected, any citizen of
 the United States . . . to the deprivation of any
 rights, privileges, or immunities secured by the
 Constitution and laws, shall be liable to the party
 injured in an action at law, suit in equity, or other
 proper proceeding for redress.
 42 U.S.C. { 1983.


FN3.    The parties have not raised or briefed the question of state law
 claims against the State of Vermont, the Vermont State Police, the Vermont
 Department of Public Safety, and the Town of Pittsburg, New Hampshire.
 Therefore, we express no opinion on these claims.


FN4.    The relevant portion of the affidavit consists of the following:
 2.  I have investigated the accident which is the
 subject matter of the case . . . .  I have reviewed the
 police reports, and the photographs taken by the police
 of the scene.  I have inspected the motorcycle driven by
 Denis Morais, have visited the scene twice, taken
 measurements of the accident scene and taken slide
 photographs of the scene.

 3.  Based on my education and experience, and my
 investigation of the accident, I have concluded as
 follows:
     a.  The police officers, Chief LaPointe, Troopers
 Yee and Tupper, engaged in the use of a rolling
 roadblock.  The purpose of a rolling roadblock is to
 apprehend or stop a motor vehicle, and is highly
 dangerous.
     b.  While I have to do further tests and obtain
 some further information, it is my preliminary opinion
 that most of the damage to the motorcycle is far more
 consistent with it having been struck by an automobile
 than the motorcycle striking a rock outcropping.  The
 police account of the collision which concludes that
 the motorcycle flipped in the air upside down, struck
 the ledge twice before Denis Morais was thrown from the
 vehicle is inconsistent with the laws of physics and
 represents collision dynamics I have not seen replicated
 in my experience of investigating and reconstructing
 over 1200 collisions.

 The affidavit was dated April 13, 1992, seven months after this action was
 commenced and eight days before the hearing on the summary judgment motion.


FN5.    Plaintiffs characterize the positioning of defendants' cruisers,
 with Tupper in front of Morais and Yee and LaPointe following, as a
 "rolling roadblock."  They contend that this constituted unreasonable deadly
 force and a violation of Fourth Amendment rights against unreasonable
 seizure under Tennessee v. Garner, 471 U.S. 1 (1985).  Garner, however,
 proceeded from the established fact that a seizure had occurred when police
 shot a suspected felon attempting to flee by climbing a fence.  Id. at 3, 7-
 9.  Therefore, a Garner analysis does not apply in this case.

------------------------------------------------------------------------------
                        Concurring and Dissenting

 

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-100


 Henri Morais & Claudette Morais              Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 Mark Yee, et al.                             February Term, 1994


 Stephen B. Martin, J.

 Deborah T. Bucknam and Lisa A. Warren Law Clerk (On the Brief), St.
   Johnsbury, and Philip R. Waystack and Clare M. Hinkley of Waystack
   & King, Colebrook, New Hampshire, for plaintiffs-appellants

 John A. Serafino and Allan R. Keyes of Ryan Smith & Carbine, Ltd.,
   Rutland, for defendants-appellees Yee, Tupper, Vermont State Police,
   Department of Public Safety, and the State of Vermont

 David A. Barra of Hill, Unsworth, Barra & Myers, Essex Junction, for
   defendants-appellees LaPointe and Town of Pittsburg, New Hampshire


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      Johnson, J., concurring and dissenting.  I dissent from Part I of the
 Court's opinion, which holds that, on the basis of the facts before the
 trial court on summary judgment, Denis Morais was not seized within the
 meaning of the Fourth Amendment to the United States Constitution.  I concur
 with the Court's opinion in all other respects.
      My disagreement is based upon the United State Supreme decision in
 Brower v. County of Inyo, 489 U.S. 593 (1989).  In that case, an individual
 was killed when the stolen car he was driving at high speed crashed into a

 

 police roadblock.  His heirs brought a claim under 42 U.S.C. { 1983,
 alleging that the roadblock had effected an unreasonable seizure.  The
 roadblock in question consisted of an eighteen-wheel tractor-trailer placed
 across both lanes of the two-lane highway on which Brower was travelling.
 The tractor-trailer was concealed by placing it behind a curve.  It was not
 illuminated, and to further conceal its presence, a police car with its
 headlights on was positioned to face Brower's oncoming vehicle.  Not
 surprisingly, Brower struck the roadblock, and he was killed.  Brower, 489 U.S.  at 594.
      The Supreme Court held that Brower's freedom of movement was so
 restricted that a seizure had occurred.  Id. at 599.  In so holding, the
 Court rejected the contention that the facts were analogous to a police
 chase in which a police car is merely in pursuit with flashing lights and in
 which a suspect unexpectedly loses control of his car and crashes.  Id. at
 595, 597.
      The Court stated that a seizure results when "there is a governmental
 termination of freedom of movement through means intentionally applied."
 Id. at 597.  The intent required is not subjective, but objective.  Thus,
 even if the police in Brower had "earnestly hoped," id. at 598, that Brower
 would stop his vehicle before hitting the roadblock, the telling
 circumstance was that the design of the roadblock was such as to produce a
 collision if voluntary compliance did not occur.  Id.  The Court stated:

           In determining whether the means that terminates the
           freedom of movement is the very means that the
           government intended we cannot draw too fine a line, or
           we will be driven to saying that one is not seized who
           has been stopped by the accidental discharge of a gun
           with which he was meant only to be bludgeoned, or by a
           bullet in the heart that was meant only for the leg.  We

 

           think it enough for a seizure that a person be stopped
           by the very instrumentality set in motion or put in
           place in order to achieve that result.  It was enough
           here . . . that . . . Brower was meant to be stopped by
           the physical obstacle of the roadblock -- and that he
           was so stopped.

 Id. at 598-99 (emphasis added).
      The Brower decision sought to distinguish between two ends of a
 spectrum.  On one end, the tractor-trailer roadblock unquestionably resulted
 in a seizure, even though no actual police contact with Brower occurred and
 even though Brower might have been able to stop his vehicle prior to the
 collision with the roadblock.  On the opposite end, a mere show of
 authority, such as pursuit with flashing lights, does not effect a seizure
 under the Fourth Amendment unless there is physical contact, such as a
 police car coming into contact with a fleeing vehicle.
      In the instant case, we have police conduct that is more than a pursuit
 with flashing lights, and less than a Brower-type roadblock.  Plaintiff
 terms it a "rolling roadblock," but whatever its proper name, it is police
 conduct that is significantly more restrictive than a mere display of
 authority.  When Morais went off the road and crashed into an embankment,
 there were two police cars in pursuit of him, and a third in front,
 straddling the center line.  It is clear that the effect of this strategy
 was to give Morais virtually no room to maneuver, and that its intent was to
 bring him to a stop.(FN1)

 

      It seems obvious to me that the use of police cars in this manner to
 bring a motorcyclist to a stop constitutes "a governmental termination of
 movement through means intentionally applied," id. at 597, that is, through
 an "instrumentality set in motion or put in place in order to achieve that
 result."  Id. at 599.  Thus, the majority's focus is misplaced.  The
 critical factor in determining whether there was a seizure is not whether
 the crash was caused by a collision with a police car, but whether, as in
 Brower, the methods used by the police effectively terminated Morais'
 freedom of movement.  Such a restriction of movement may occur, as it did in
 Brower, without any actual, physical contact by the police.  One may agree
 that the police actions in Brower were more egregious in the setting up of a
 fixed and blind roadblock, but the facts here just as clearly demonstrate
 all of the required elements of a seizure.
      To the extent that one may harbor any doubt as to this conclusion, the
 nature of the police actions may be illuminated by asking what the expected
 outcome of those actions would have been had no crash occurred.  Quite
 clearly, the expected outcome and, from the standpoint of the police, the
 desired and intended outcome would have been Morais' apprehension.  Thus,
 the inevitable result of what the police did here was either a peaceable
 apprehension or a cataclysmic one.  Once such a point has been reached, I do
 not understand how it can be denied that a seizure has been effected.  As
 the United States Supreme Court said in Brower, it is not possible,
           in determining whether there has been a seizure in a
           case such as this, to distinguish between a roadblock
           that is designed to give the oncoming driver the option
           of a voluntary stop (e.g., one at the end of a long
           straightaway), and a roadblock that is designed
           precisely to produce a collision (e.g., one located just
           around a bend).

 

 Id. at 598.  I take the meaning of this statement to be that any roadblock,
 stationary or "rolling," that forces its subject to come to a stop, either
 voluntarily or by collision, necessarily results in a seizure within the
 meaning of the Fourth Amendment.
      For these reasons, I conclude that a seizure occurred in this case.  On
 remand, I would instruct the court below to determine whether that seizure
 was reasonable, a question on which I express no opinion at this time.


                                              ___________________________
                                              Associate Justice


------------------------------------------------------------------------------
                               Footnotes

FN1.    The fact that Morais had no avenue of escape, except submission to
 authority, distinguishes this case from the Supreme Court's later holding in
 California v. Hodari D., 499 U.S. 621 (1991).  In Hodari D., a suspect fleeing
 on foot was not seized until he was tackled.  Therefore, the cocaine he
 abandoned while running was not the fruit of a seizure.  Id. at 629.  Unlike
 Morais, Hodari D. could have, at least theoretically, outrun the police.