Opinion
15–P–15 15–P–16 15–P–18
07-20-2017
COMMONWEALTH v. Bronnie MARINEZ (and twenty-nine companion cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants in these appeals, Bronnie Marinez, LaLance Smith, and Morris Parson, were indicted on charges of home invasion, armed robbery, armed assault in a dwelling, and various firearm offenses. They subsequently filed motions to suppress evidence seized during an inventory search of the rental car they occupied when they were stopped by police. Following an evidentiary hearing, a Superior Court judge denied the motions to suppress. Upon the defendants' interlocutory appeals, we affirmed in an unpublished memorandum pursuant to rule 1:28. Commonwealth v. Marinez, 89 Mass. App. Ct. 1123 (2016). The Supreme Judicial Court denied the defendants' petitions for further appellate review without prejudice, see 476 Mass. 1108 (2017), but remanded the cases to this court for reconsideration in light of its decision in Commonwealth v. Campbell, 475 Mass. 611 (2016). We now reverse.
A fourth defendant, Zacquel Wisse, abandoned his interlocutory appeal prior to the first oral argument before us.
Background. The sequence of events that led to the inventory search in this case began with a vehicle stop by Boston police officers on the evening of April 1, 2013. We need not repeat the facts set forth in our prior decision regarding the reason for the vehicle stop. Suffice it to say that the officers stopped the vehicle in the Dorchester area of Boston because the occupants, later identified as the defendants, matched the general description of the suspects in a home invasion reported in the area a short time before.
In our initial consideration of this case, we rejected the defendants' claims that the police lacked reasonable suspicion to stop the vehicle and order the defendants to exit. The holding in Campbell does not affect the analysis of the vehicle stop and exit order, and we see no reason to readdress those issues.
We focus here on the facts related to impoundment of the vehicle and the subsequent inventory search. After stopping the car, Officer John Moynihan asked the driver, later identified as defendant Parson, for his license and registration. Parson did not appear nervous, and provided his license and a car rental agreement. After obtaining identifying information from all four occupants, Moynihan went back to his cruiser where he determined that neither Parson nor any of the other occupants was listed in the rental agreement as an authorized operator of the rental car. The motion judge found that "Moynihan determined that Parson, the driver, was in violation of G. L. c. 90, § 24 (use of a motor vehicle without authority), and that the vehicle could not lawfully be operated by, or turned over to, any of the passengers."
Pursuant to the Boston police department's motor vehicle inventory search policy, Moynihan decided to have the vehicle towed and to search it before it was taken away. The officers asked the men to exit the vehicle and stay on the sidewalk, which they did. The officers then conducted an inventory search of the passenger area, quickly locating duct tape and a gray knit cap. They then opened the trunk and discovered two firearms. At that point, the police placed all four men under arrest. Parson began to run, but he was apprehended and placed under arrest with the others.
The policy was admitted in evidence at the suppression hearing.
Parson was issued a citation for use of a motor vehicle without authority in violation of G. L. c. 90, § 24(2)(a ).
Discussion. We review the judge's decision under familiar standards. "We accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law.' " Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 344 (2010), quoting from Commonwealth v. Costa, 65 Mass. App. Ct. 227, 229–230 (2005).
Our focus here is narrow. Consistent with the Supreme Judicial Court's remand for reconsideration in light of the holding in Campbell, 475 Mass. 611, we address only the propriety of the decision to impound the vehicle and of the subsequent inventory search. In Campbell, which was decided after we first considered these appeals, the Supreme Judicial Court addressed the quantum of evidence necessary to establish probable cause to charge the driver of a rental vehicle with unauthorized use of that vehicle pursuant to G. L. c. 90, § 24(2)(a ). In that case, "[o]ther than the fact that the [driver's] name was not on the rental agreement, [the officer] had no basis to believe" that use of the vehicle was unauthorized. Campbell, supra at 613. Accordingly, the court concluded that "[a]lthough the absence of the defendant's name on the rental agreement provided ... a basis to investigate whether the authorized renter had permitted the defendant to use the vehicle, that information by itself could not establish probable cause to conclude that the defendant was in violation of the statute." Id. at 622.
The court in Campbell, 475 Mass. at 620–621, reasoned that although a renter's allowing a person unauthorized by the rental agreement to drive the vehicle may breach that agreement, that person does not thereby commit unauthorized use of a motor vehicle under G. L. c. 90, § 24(2)(a ).
Here, Officer Moynihan testified, and the motion judge found, that Parson was charged with use of a motor vehicle without authority pursuant to G. L. c. 90, § 24(2)(a ), solely because neither he nor the passengers in the vehicle were listed as authorized operators on the rental agreement. There was no evidence that the police conducted further investigation to determine whether Parson had obtained permission from the person who rented the car. Officer Moynihan acknowledged that his decision to impound, inventory, and tow the vehicle was based only on the fact that the occupants were not listed on the rental agreement. In these circumstances, as in Campbell, "[t]he asserted violation of G. L. c. 90, § 24(2)(a ), ... did not provide a sufficient basis for the officer to impound the vehicle and conduct an inventory search." 475 Mass. at 622. Because the firearms and gray cap were seized in the course of the inventory search, the motions to suppress should have been allowed. We therefore conclude, as required by Campbell, that the orders denying the motions to suppress must be reversed.
We are not persuaded by the Commonwealth's suggestion at the second oral argument that the officers considered the defendants armed and dangerous and that there was, therefore, an independent reason to search the rental car. There was no testimony that the officers considered the defendants armed and dangerous. The defendants were cooperative and made no furtive gestures. No weapons were observed before the search.
--------
Orders denying motions to suppress reversed.