Opinion
No. BRCR2005-01266.
December 12, 2007.
MEMORANDUM AND ORDER OF THE DEFENDANT'S MOTION TO SUPPRESS
Before the Court is the defendant's motion to suppress a quantity of cocaine that was seized in the course of an inventory search of his vehicle after he was stopped for having been operating with a suspended license. An evidentiary hearing was held before the Court. The Commonwealth's evidence consisted of the testimony of the arresting police officer. Four exhibits were entered, and they are incorporated herein. The defendant presented no evidence. The motion is DENIED for the reasons that follow.
Findings of Fact
Norton police officer James Franco ("Franco") had just begun his 4 p.m. to midnight shift on July 18, 2005 when he was observing traffic at the Oak Street and Route 123 intersection in the town of Norton from a parking lot. Franco had been a member of the Norton Police Department for 11 years as a uniformed patrolman.
At approximately 4:30 p.m., Franco observed the defendant proceeding west on Route 123 in the direction of Attleboro driving a 1995 Honda Accord with its front license plate displayed upside down. Using his cruiser laptop, Franco did a license check, and he was informed that the registered owner's license had been revoked.
Franco immediately proceeded out into the traffic, and at that point he was several hundred feet behind the defendant's vehicle. After about a half mile as he got closer to the defendant, Franco activated his blue lights. The defendant slowed down, and in short order the defendant turned into an empty parking lot in front of the Old Colony Creamery (the "Creamery"), a restaurant and ice cream parlor. The restaurant was closed at the time.
The defendant stopped his vehicle towards the rear of the Creamery lot. Franco pulled his cruiser directly behind. Using the cruiser's PA system, Franco instructed the defendant, who was traveling alone, to lower his front driver's side window. The defendant complied.
At the time of the stop, the defendant had otherwise been lawfully operating his car, i.e., there were no infractions of the traffic laws on which to predicate the stop other than the computer information as to the vehicle owner's unlicensed status.
There was no breakdown lane on Route 123 where the stop occurred, and the shoulder was very narrow.
Franco approached the defendant's driver side window and asked for his license and registration. The defendant complied. The defendant was the registered owner of the vehicle. Franco observed that the defendant was unusually nervous, with his hands shaking. Franco asked the defendant why he was so nervous, and he got a non-specific answer.
Franco then returned to his cruiser, made radio contact with the station and requested further information about the defendant's license status, the status of the vehicle's registration and a criminal record check. Franco was informed that the defendant did not have a criminal record and that the car was lawfully registered (and, Franco "assumed", lawfully insured). However, the original information as to the defendant's license suspension was confirmed.
At that juncture, Franco decided to issue a criminal "application" to the defendant rather than to arrest him, notwithstanding the statutory authority to do so. G.L. c. 90, § 21. He so informed the defendant. Franco also then made the decision to have the car removed from the Creamery lot and towed to an authorized location. Franco informed the defendant that he would be doing an inventory search of the car before it was towed, and Franco asked the defendant whether he had any property that he wanted to take from the car. The defendant said that he did not.
Franco offered to give the defendant a lift to a place from which the defendant could make a phone call. The defendant informed him that that would not be necessary since he had a cell phone. Franco did not ask the defendant whether he had any friends or others who would be able to drive the car from the premises. The defendant did not request the opportunity to make such arrangements.
As noted, the Creamery restaurant was closed. If the defendant's car had been left in the restaurant lot, it would have been the only vehicle in the lot, and it would have been clearly visible from the street. See photographs comprising Exhibit 4.
Franco was not afraid for his safety. To the contrary, Franco attempted to put the defendant at ease after he observed his nervous state. The defendant was cooperative and communicative with Franco.
The portion of Route 123 where the Creamery was located was on the main route to Attleboro. There had been frequent complaints of vandalism to cars and of breaks into vehicles in the area. While Franco himself had not previously responded to such complaints specifically at the Creamery premises, Franco was aware that his fellow officers had, and the Court so finds. Franco decided to have the car towed from the Creamery lot in order to protect it from such vandalism, pending the defendant making arrangements for the vehicle's being retrieved by a lawfully licensed driver.
The Norton Police Department had a written policy with regard to motor vehicle impoundment and inventory procedures. See Exhibit 2. According to the policy its purpose was to:
1. Protect the motor vehicle as well as any personal property contained in such vehicle;
2. Protect the police against claims arising from property allegedly lost or stolen while in police custody; and
3. Protect department personnel and the public from injury or property damage due to dangerous items or substances that may be contained in the vehicle.
The policy further provided: "This policy and procedure does not apply to searches conducted for the purpose of discovering evidence. Consult the department's policy and procedure entitled, "Searches and Seizures", where the examination of a motor vehicle or its contents is to be conducted with an investigatory motive."
In compliance with other provisions of the policy, Franco then proceeded to make an inventory search of the defendant's car, beginning with the area on the driver's side. When Franco looked under the driver's seat, he found two plastic bags containing a white powder that he believed to be cocaine. He then placed the defendant under arrest. The substance was subsequently confirmed to be cocaine.
Discussion
"A lawful inventory search is contingent on the propriety of the impoundment of the car." Commonwealth v. Brinson, 440 Mass. 609, 612 (2003). "' Under both the Federal and Massachusetts Constitutions, analysis of the legitimacy of an inventory search of an impounded vehicle involves two related, but distinct, inquiries: (1) whether the impoundment of the vehicle leading to the search meet[s] constitutional strictures, and (2) whether the conduct and scope of the search itself meet those strictures.'" Commonwealth v. Henley, 63 Mass.App.Ct. 1, 5 (2005), quoting Commonwealth v. Ellerbe, 430 Mass. 769, 772-773 (2000).
The threshold requirement is that the impoundment and search be conducted pursuant to a written police policy. Commonwealth v. Bishop, 402 Mass. 449, 451 (1988). As noted above, the Norton Police had such a policy, and Franco's decision to tow the car and conduct the inventory search before the car was removed was done pursuant to the policy.
"'The impoundment of a vehicle for non-investigatory reasons is generally justified if supported by public safety concerns or by the danger of theft or vandalism to a vehicle left unattended.'" Brinson, 440 Mass. at 612, quoting Commonwealth v. Daley, 423 Mass. 747, 750 (1996). Accord Commonwealth v. Dunn, 34 Mass. App. Ct. 702, 704 (1993).("[J]ustification must be found, if at all, in the danger that the vehicle may be vandalized or stolen.") Police action to impound a vehicle under these circumstances is done pursuant to the police's "community caretaking function." See generally Commonwealth v. Gaylordo, 68 Mass. App. Ct. 906, 907 (2007).
Here, the area where the defendant's car was stopped was known by the police as one where unattended cars were frequently vandalized or broken into. Further, if not impounded, the defendant's car would have remained isolated and highly visible in an otherwise unused private lot on which the defendant did not have a right to leave his car.
The defendant did not request the opportunity to arrange for someone else to retrieve the car for him. However, even if he had, "[i]t would seem reasonably clear that the failure to give a person an opportunity to make reasonable alternative arrangements for the vehicle would not invalidate an inventory search under Fourth Amendment principles." Commonwealth v. Caceres, 413 Mass. 749, 752 n. 1 (1992).
There is no evidence that Franco used the impoundment and attendant inventory search as a pretext to search the vehicle. See generally Commonwealth v. Matchett, 386 Mass. 492, 509-510 (1982). Rather, Franco had made the prior judgment to not arrest the defendant, which suggested that Franco was not particularly suspicious of the defendant. Further, Franco otherwise treated the defendant with professional courtesy.
In summary, Officer Franco's conduct was reasonable in all respects. He had lawful grounds to stop the defendant; there were objective reasons to be concerned that the car would be vandalized if left in the lot; there was a written departmental policy authorizing the impoundment and inventory search; Franco followed the prescribed procedures, and Franco did so for the purposes stated in the policy and not with an investigative intent or motive.
ORDER
The defendant's motion to suppress is DENIED .