COMMONWEALTH VS. JEMAUL R. OLIVEIRA (and a companion case)
Supreme Judicial Court of Massachusetts
January 8, 2016. - March 28, 2016.
474 Mass. 10 (2016)
Bristol. Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
A District Court judge properly allowed the criminal defendants’ pretrial motion to suppress evidence found in a vehicle driven by one of the defendants, where it was unreasonable for police officers to impound the vehicle, which was lawfully parked in a department store lot, and to conduct an inventory search of it, given that the driver, who had been arrested for shoplifting, had offered the police an alternative to impoundment that was lawful and practical under the circumstances. [13-16]
COMPLAINTS received and sworn to in the New Bedford Division of the District Court Department on March 19, 2013.
Pretrial motions to suppress evidence were heard by Kathryn E. Hand, J.
An application for leave to prosecute an interlocutory appeal was allowed by Duffly, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Yul-mi Cho, Assistant District Attorney, for the Commonwealth.
Patrick Levin, Committee for Public Counsel Services, for Jemaul R. Oliveira.
Christopher DeMayo for Mitchell T. Violet.
GANTS, C.J. The interlocutory appeal in these companion cases requires us to examine whether it was reasonable for the police to impound a vehicle lawfully parked in a department store lot and conduct an inventory search of the vehicle after the authorized driver of the vehicle was arrested for shoplifting. We conclude that where the driver had offered the police an alternative to1
Background. The defendants, Mitchell T. Violet and Jemaul R. Oliveira, were charged with shoplifting by concealing merchandise, in violation of
At about 4:30 P.M. on March 18, 2013, Dartmouth police Officers Robert St. Denis and Victor Morency separately went to the loss prevention office of a department store in Dartmouth, where they learned that loss prevention officers had detained the defendants after determining that they had attempted to leave the store without paying for some items. Violet had stolen cologne worth sixty-one dollars, and Oliveira had stolen athletic apparel worth forty-three dollars. St. Denis told the defendants that the police had been called in response to a shoplifting complaint, and asked Violet and Oliveira how they had arrived at the store. Violet replied that he had driven “his” motor vehicle, but that it was registered to his girl friend. After learning that a bag of merchandise from the store was in Violet‘s vehicle, Morency asked Violet for permission to search it for the bag. Violet gave permission to search for the bag, and he provided the police with the keys to open the vehicle in order to retrieve the bag. The police officers verified that the vehicle was registered to Violet‘s girl friend and located it properly parked in a marked spot in the parking lot. One of the officers used Violet‘s key to open the vehicle, saw the bag in plain view on the back seat, and brought the bag back into the store, where one of the defendants produced a receipt for the merchandise in the bag.
The police officers spoke with the store‘s manager and told him that Violet‘s vehicle might remain in the parking lot overnight. The manager responded that he did not want it to remain in the lot and asked that it be towed.5 The motion judge found that the “prediction” by the police that the vehicle might remain in the lot overnight was “completely speculative, as no one made an effort to find out whether the owner of the car would come get it, and if so, when.”
The judge allowed the defendants’ motions to suppress the firearm found during the inventory search. The judge found that the search was a “‘true’ inventory search,” that is, it was intended to secure the vehicle and its contents, and was not a pretext for an investigatory search, and also found that the search conformed to the Dartmouth police department‘s inventory search policy. But the judge concluded that the seizure of the vehicle that preceded the inventory search was not reasonable. The judge found that Vio-
The Commonwealth filed a notice of appeal in each case, and it applied for leave to proceed with an interlocutory appeal from the decision in the two cases, which a single justice of this court allowed and reported to the Appeals Court. We transferred the cases to this court on our own motion.
Discussion. Because an inventory search is conducted without a warrant, the Commonwealth bears the burden of proving that the search was lawful. See Commonwealth v. Eddington, 459 Mass. 102, 108 (2011). Under both the United States and Massachusetts Constitutions, an inventory search is lawful only if, first, the seizure (or impoundment) of the vehicle was reasonable, see id., citing Commonwealth v. Ellerbe, 430 Mass. 769, 776 (2000) (“guiding touchstone” is reasonableness); and, second, the search of the vehicle that follows its seizure was conducted in accord with standard police written procedures, see id. at 108 & n.11; Ellerbe, supra at 773 n.8. See generally Commonwealth v. Brinson, 440 Mass. 609, 612 (2003) (“A lawful inventory search is contingent on the propriety of the impoundment of the car“). We address in this case only the reasonableness of the seizure.
In evaluating whether the seizure of a vehicle was reasonable, we look first to the law enforcement officer‘s true purpose for seizing it. After the arrest of the driver, a vehicle may be seized for one of at least four legitimate purposes: to protect the vehicle and its contents from theft or vandalism, see Ellerbe, 430 Mass. at 775; to protect the public from dangerous items that might be in the vehicle, see United States v. Coccia, 446 F.3d 233, 240 (1st Cir. 2006), cert. denied, 549 U.S. 1149 (2007); to protect public safety where the vehicle, as parked, creates a dangerous condition, see Brinson, 440 Mass. at 615-616; Commonwealth v. Henley, 63 Mass. App. Ct. 1, 5-6 (2005); or where the vehicle is parked on private property without the permission of the property owner as a result of a police stop, to spare the owner the burden of having to cause the vehicle to be towed, see Ellerbe, supra at 770, 776 (“it is appropriate for the police to spare the private parking lot owner the burden of dealing with the vehicle‘s presence when the
If the vehicle was seized for a legitimate purpose, we look next to whether the seizure was reasonably necessary based on the totality of the evidence. See Eddington, 459 Mass. at 108-110. Where the police arrest the driver of a vehicle, we consider whether the vehicle reasonably could have been left in the place it was parked and therefore need not have been seized. An important factor here is whether the driver chose where to park the vehicle or whether the police stopped a moving vehicle and caused it to be parked at a location the driver otherwise would not have chosen. Where the driver chose the location to park the vehicle, and parked it lawfully on the street, in the owner‘s driveway, or in a parking lot open to the public without limitation, the Commonwealth must show that it would have been unreasonable to have allowed the vehicle to remain where the driver chose to park it. See Brinson, 440 Mass. at 610 (“the government may not impound and conduct an inventory search of a car based on the arrest of the owner, where the car was lawfully parked in a privately owned parking lot [by the owner] and there was no evidence that the car constituted a safety hazard or was at risk of theft or vandalism“). But where the vehicle was stopped by the police and the driver arrested, the police are responsible both for the location of the vehicle and for depriving the vehicle of its driver, and therefore might be held responsible if the vehicle‘s location created a risk to public safety or left the vehicle vulnerable to vandalism or theft. Id. at 613-614, citing People v. Krezen, 427 Mich. 681, 687-692 (1986) (potential police liability for failure to impound can be considered in decision to seize). See generally 3 W.R. LaFave, Search and Seizure § 7.3(c), at 809-815 (5th ed. 2012).
Where the vehicle reasonably could not have been left in the place it was parked, we consider whether the owner of the vehicle
We have no litmus test to gauge whether the alternative offered by the owner or authorized driver was lawful and practical and therefore an alternative the police reasonably should have allowed instead of impoundment; the determination depends on the totality of the circumstances. We have, however, made clear that the police have no obligation to locate or telephone the registered owner to determine his or her wishes, Eddington, 459 Mass. at 109, or to wait with the vehicle until a licensed driver can be located, Ellerbe, 430 Mass. at 776.
In this case, we agree with the judge that the decision of the police to impound the vehicle was unreasonable. The police did not question that Violet was authorized by his girl friend to drive the vehicle, and it was properly registered to her. Under the circumstances, Violet‘s request that the police leave the vehicle where he parked it until his girl friend could retrieve it was lawful and practical. Before the vehicle was impounded, Violet had been arrested only for shoplifting, a crime that was punishable by a fine of no more than $250,
The Commonwealth contends that the police need only consider the request for an alternate disposition of the vehicle where the owner of the vehicle is present and proposes the alternate disposition. Such a per se rule would undermine the nature of the impoundment decision, which requires the police to act reasonably and “necessitates a case-by-case analysis that takes into account the numerous and varied situations in which decisions to impound are made.” Eddington, 459 Mass. at 109 n.12. Here, the police did not question Violet‘s assertion that he was authorized by the owner of the vehicle to drive it, and there were no circumstances that reasonably should have caused them to question that assertion. The fact that the owner of the vehicle was not present when the driver was arrested is not sufficient by itself to justify impoundment of the vehicle and the consequent inventory search. See id. at 111 n.14.
Conclusion. Because we conclude that the impoundment was unreasonable and, thus, unconstitutional, we affirm the order of the motion judge suppressing the fruits of the inventory search of the motor vehicle.
So ordered.