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SJC-12202

COMMONWEALTH vs. RICHARD R. SANBORN.

Worcester. January 6, 2017. - June 29, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & 

Cypher, JJ.

Abuse Prevention. Constitutional Law, Investigatory stop. Due 

Process of Law, Abuse prevention. Practice, Civil, 

Service. Threshold Police Inquiry.

Complaint received and sworn to in the Fitchburg Division 

of the District Court Department on May 18, 2015.

A pretrial motion to suppress evidence was heard by 

Christopher P. LoConto, J., and a question of law was reported 

by him to the Appeals Court.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Ellyn H. Lazar-Moore, Assistant District Attorney, for the 

Commonwealth.

Merritt Schnipper (Robert M. Cassesso, Jr., also present) 

for the defendant.

LOWY, J. The question before us was reported by a judge in 

the District Court: "Whether G. L. c. 209A authorizes the 
2

police to effectuate a motor vehicle stop to serve a civil abuse 

prevention order?" We answer the question in the negative. We 

conclude that G. L. c. 209A requires law enforcement to take 

reasonable measures to serve abuse prevention orders. In order 

for the service of the orders to be reasonable, the manner of 

service must comply with the terms of the Fourth Amendment to

the United States Constitution and art. 14 of the Massachusetts 

Declaration of Rights.

Background. At a hearing regarding a motion to suppress 

evidence obtained during a motor vehicle stop, the motion judge 

found the following facts. On May 16, 2015, a Lunenberg police 

sergeant was parked outside a local bar. In the course of 

randomly checking the registration status and owner information 

of vehicles parked outside the bar, he inquired about a license 

plate number registered to Richard Sanborn, the defendant. The 

sergeant recalled that a civil abuse restraining order issued 

pursuant to G. L. c. 209A had not yet been served on the 

defendant. Another officer from the Lunenberg police department 

delivered the restraining order to the sergeant. Subsequently

the defendant left the bar, entered his vehicle, and drove away.

1

 

1 At oral argument, the Commonwealth argued that the 

sergeant was across the street from the bar to receive delivery 

of the restraining order when he saw the defendant driving away 

from the bar. The sergeant testified that he was not sure when 

he received the order but that, as he drove across the street to 

meet the officer bringing the restraining order, the sergeant 
3

The sergeant followed the defendant and eventually stopped his 

vehicle. Based on the sergeant's observations of the defendant 

after the stop, the defendant was placed under arrest for 

operating while under the influence of liquor.

The defendant moved to suppress evidence relating to, and 

discovered as a result of, the stop, arguing that his Fourth 

Amendment and art. 14 rights had been violated. At the hearing

on the defendant's motion, the sergeant testified that he 

stopped the defendant after observing multiple lane violations.

The motion judge discredited that testimony, however, and found 

that the purpose of the stop was to serve the abuse prevention 

order. The judge granted the defendant's motion and reported 

the question above to the Appeals Court pursuant to Mass. R. 

Crim. P. 34, as amended, 442 Mass. 1501 (2004). We transferred 

the case to this court on our own motion.

Discussion. General Laws c. 209A serves a critical 

government interest in the "[p]reservation of the fundamental 

human right to be protected from the devastating impact of 

family violence." Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 

772-773 (2005), quoting Champagne v. Champagne, 429 Mass. 324, 

 

observed the defendant driving out of the bar's parking lot. 

However, the judge's findings reflect that the sergeant received 

the order and that the defendant left "[s]ubsequently." See

Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004) (absent clear 

error, appellate court accepts factual findings of judge ruling 

on motion to suppress). Resolution of this potential factual 

discrepancy is not material to our holding in this case.
4

327 (1999). Accordingly, G. L. c. 209A, § 7, requires law 

enforcement officers to "use every reasonable means to enforce 

. . . abuse prevention orders." Reasonable means to enforce 

abuse prevention orders logically include law enforcement 

officers' ability to utilize reasonable means to serve them. We 

therefore interpret G. L. c. 209A, § 7, to require law 

enforcement to use "every reasonable means" to serve abuse 

prevention orders. In order for a stop to constitute reasonable 

means, however, the stop must comply with the requirements of 

the Fourth Amendment and art. 14. See Commonwealth v. 

Rodriguez, 472 Mass. 767, 773 (2015) ("police stop of a moving 

automobile constitutes a seizure, and therefore, any such stop, 

whatever its purpose, must comply with the Fourth Amendment 

. . . and with art. 14").

A search or seizure conducted without a warrant is 

presumptively unreasonable. Brigham City v. Stuart, 547 U.S. 

398, 403 (2006). See Rodriguez, 472 Mass. at 773-774. 

Warrantless seizures may be reasonable, however, if the

circumstances of the search fall within an established exception 

to the warrant requirement.2 See, e.g., Commonwealth v. Peters, 

 

2 The Commonwealth does not argue that the facts of this 

case fit within any of the established exceptions to the warrant 

requirement. Relying on Commonwealth v. Rodriguez, 472 Mass. 

767, 776 (2015), the Commonwealth contends that we should 

balance the intrusion into the defendant's privacy against the 

governmental interest in preventing domestic abuse and resolve 
5

453 Mass. 818, 823 (2009) (warrantless home entry justified 

based on objectively reasonable belief in emergency); 

Commonwealth v. Motta, 424 Mass. 117, 123-124 (1997) (law 

enforcement may stop motor vehicle in public place when law

enforcement has probable cause that vehicle contains 

contraband); Commonwealth v. Bacon, 381 Mass. 642, 643-644

(1980) (motor vehicle stop reasonable where police have 

reasonable, articulable suspicion of crime or of civil traffic 

violation). Cf. Rodriguez, supra at 777-778 (motor vehicle stop 

unreasonable when based on reasonable suspicion of civil 

violation unrelated to traffic violation).

We may not read G. L. c. 209A to circumvent the 

constitutional protections of the Fourth Amendment and art. 14. 

As such, c. 209A cannot authorize a stop in the absence of a 

constitutional justification, such as a warrant, reasonable 

suspicion of criminal activity or a civil traffic violation, or 

a reasonable belief that emergency intervention is required.3 

 

the balance in favor of the governmental interest. In 

Rodriguez, however, we invoked this balancing test based on the 

existence of a reasonable, articulable suspicion that the 

defendant was engaged in illegal, albeit noncriminal, activity. 

Id. Based on the facts found by the judge in this case, there 

was no reasonable suspicion of criminal or civil wrongdoing at 

the time of the stop.

3 We agree with the concurrence that, given the nature and 

importance of abuse prevention orders under G. L. c. 209A and 

the lesser expectation of privacy in motor vehicles, California

v. Carney, 471 U.S. 386, 392-393 (1985), effecting a motor 
6

Ultimately, whether a stop to serve a c. 209A order is a 

reasonable measure to avert the harm from an emergency depends 

on an objective assessment of the necessity of doing so, in 

light of all facts known to law enforcement at the time. See 

Commonwealth v. Meneus, 476 Mass. 231, 235 (2017). In such 

circumstances, the justification for the stop stems not from 

G. L. c. 209A, but from the constitutional exception to the 

warrant requirement. When a stop is not constitutionally

justified, reasonable means for service would include the 

mechanisms typically employed for service: in-person delivery, 

leaving the order at the defendant's home, or service by mail, 

as appropriate. See G. L. c. 276, § 25 (service of criminal 

summons may be made by in-person delivery, by leaving summons at 

the defendant's last known address with person of suitable age, 

or by mail to last known address); Mass. R. Civ. P. 4 (d) (1), 

as amended, 370 Mass. 918 (1976) (service of civil summons and 

 

vehicle stop to serve an abuse prevention order may be 

constitutionally justified in some circumstances, such as an 

emergency or other exception to the Fourth Amendment's warrant 

requirement. Because the constitutionality of a stop depends on 

its reasonableness based on the totality of the circumstances, 

we limit our holding today due to the absence of facts that have 

matured through litigation that would allow us to apply the 

doctrinal framework in a meaningfully helpful manner.
7

complaint may be made in person, by delivery to defendant's last 

and usual place of abode, or by delivery to defendant's agent).4

Conclusion. The answer to the reported question is "no." 

We remand the case to the District Court judge for further 

proceedings consistent with this opinion.

So ordered.

 

4 Following a motor vehicle operated by a defendant until it 

stops and the defendant leaves the vehicle would constitute a 

constitutionally satisfactory method of service.
GANTS, C.J. (concurring, with whom Gaziano and Budd, JJ., 

join). I agree with the court's answer of "no" to the reported 

question to the extent that it declares that G. L. c. 209A does 

not independently authorize the police to effectuate a motor 

vehicle stop in order to serve notification of an abuse 

prevention order. I also agree that any such stop must comply 

with the requirements of the Fourth Amendment to the United 

States Constitution and art. 14 of the Massachusetts Declaration 

of Rights. Ante at . I write separately because I believe 

that a stop for the purpose of serving an abuse prevention order 

may be reasonable under the Fourth Amendment and art. 14 where 

the exigent circumstances fall short of the standard for an 

"emergency" under the "emergency aid" doctrine. See 

Commonwealth v. Peters, 453 Mass. 818, 819 (2009) (police may 

enter home without warrant "when they have an objectively 

reasonable basis to believe that there may be someone inside who 

is injured or in imminent danger of physical harm").

The ultimate touchstone of both the Fourth Amendment and 

art. 14 is reasonableness. Commonwealth v. Rodriguez, 472 Mass. 

767, 775 (2015). "[T]o evaluate the permissibility of 

particular law enforcement practices, including police stops of 

moving vehicles where there is no probable cause to suspect the 

vehicle's involvement in criminal activity, courts have balanced 

the intrusiveness of the police activities at issue against any 
2

legitimate governmental interests that these activities serve." 

Id. at 776, citing Delaware v. Prouse, 440 U.S. 648, 654 (1979). 

We deem it reasonable for a police officer to open the unlocked 

door of a stopped vehicle where the driver fails to respond to 

the officer's repeated attempts to attract his or her attention 

and the driver appears to be in some kind of difficulty. See 

Commonwealth v. Leonard, 422 Mass. 504, 505, 509, cert. denied, 

519 U.S. 877 (1996). We also deem it reasonable to allow 

officers under limited and defined circumstances to stop 

vehicles on roadways at fixed location sobriety checkpoints to 

ensure that motorists are not under the influence of alcohol or 

drugs. See Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144 

(1983). See also Michigan Dep't of State Police v. Sitz, 496 

U.S. 444, 455 (1990) ("the balance of the State's interest in 

preventing drunken driving, the extent to which this system can 

reasonably be said to advance that interest, and the degree of 

intrusion upon individual motorists who are briefly stopped, 

weighs in favor of [sobriety checkpoints]").

The need to protect ill, injured, or inebriated drivers, 

and to protect the public from them, is comparable to the need 

to protect the victims of domestic abuse who have obtained abuse 

prevention orders under G. L. c. 209A, § 4, by demonstrating a 

"substantial likelihood of immediate danger of abuse." Domestic 

violence is a substantial threat to public safety. See Custody 
3

of Vaughn, 422 Mass. 590, 595 (1996) ("abuse by a family member 

inflicted on those who are weaker and less able to defend 

themselves . . . is a violation of the most basic human right, 

the most basic condition of civilized society: the right to 

live in physical security, free from the fear that brute force 

will determine the conditions of one's daily life"). Last year, 

more than twenty domestic violence-related killings occurred in 

Massachusetts. See Jane Doe Inc., Overview of Domestic Violence 

Homicides in Massachusetts Year to Date 2016, http://www.janedoe

.org/site/assets/docs/Learn_More/DV_Homicide/2016_YTD_DV_

Homicides-asof_2017_05_16.pdf [https://perma.cc/83KK-94XE].

The issuance of an abuse prevention order matters little if 

it is not served. General Laws c. 209A, § 7, recognizes the 

importance of service by requiring that an abuse prevention 

order issued be transmitted "forthwith" to the police for 

service upon the defendant and by requiring that police 

"promptly" make return of service to the court. See 

Commonwealth of Massachusetts Trial Court, Guidelines for 

Judicial Practice: Abuse Prevention Proceedings 91-92 (rev. 

Sept. 2011), http://www.mass.gov/courts/docs/209a/guidelines2011.pdf [https://perma.cc/M9MV-8ZXZ] ("In-hand service should 

be obtained if at all possible. . . . Further abuse will not be 

deterred if the defendant does not know the order exists 
4

. . . [, and] successful prosecution for violation of an order 

of which the defendant is unaware is probably impossible").

Service generally can be accomplished by the usual means, 

without any need to stop the defendant in a motor vehicle. But 

there are circumstances where service by the usual means proves 

futile or is plainly going to be futile, such as where the 

abusive partner has left his or her residence indefinitely, 

perhaps never to return, without any notice of where he or she 

can be reached and without any employment address where he or 

she can be found. Where service through the usual means has 

proved futile or is demonstrably futile, I would find it 

reasonable and therefore constitutional to stop the defendant's 

vehicle in order to serve the order. The circumstances in this 

case fall well short of meeting that standard.