Opinion
16-P-546
06-07-2017
COMMONWEALTH v. Andrew R. MALABRE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Andrew R. Malabre, brings this interlocutory appeal from a Boston Municipal Court judge's denial of his motion to suppress evidence obtained due to the seizure of a backpack during an inventory search following impoundment of a vehicle. Because we conclude that impoundment was improper, we reverse.
Background. The following facts are taken from the judge's findings on the defendant's motion to suppress, supplemented with the testimony of Officer Ramos, which the judge explicitly credited in its entirety. On the evening of July 16, 2015, three Boston police officers were patrolling in the Dorchester section of Boston when they observed a vehicle make an illegal right turn from the left-turn-only lane without using a turn signal. Although the officers activated their vehicle's lights and sirens, the driver initially failed to stop, pulling to the side of the road and continuing at a slow roll. After the officers sounded several commands for the driver to stop, the vehicle eventually stopped approximately two city blocks from where the police had first activated their lights and sirens.
The driver was immediately arrested for failure to stop for a police officer. After asking the name of the defendant, who was the front-seat (and only) passenger, the officer ordered him out of the vehicle. The defendant was not handcuffed. The vehicle was a rental owned by Enterprise Rent-A-Car, and only the driver was authorized to operate the vehicle under the rental agreement.
The officers made a decision to impound the vehicle and conducted an inventory search pursuant to the Boston Police Inventory Policy. In the rear seat of the car the officer conducting the search found a green backpack. When he unzipped the backpack, he found a weapon. The officer asked the defendant whether he had a license to carry a firearm; the defendant replied that he did not. The defendant was arrested.
After the defendant's motion to suppress the firearm was denied, the defendant applied for leave to file an interlocutory appeal, pursuant to Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). A single justice of the Supreme Judicial Court allowed the application.
Discussion. In reviewing a ruling on a motion to suppress we accept, absent clear error, the motion judge's subsidiary findings of fact; however, we independently review the judge's ultimate findings and conclusions of law. Commonwealth v. Scott, 440 Mass. 642, 646 (2004). "Because an inventory search is conducted without a warrant, the Commonwealth bears the burden of proving that the search was lawful." Commonwealth v. Oliveira, 474 Mass. 10, 13 (2016). Where the defendant does not challenge the legality of the initial traffic stop or exit orders, we ask "whether the decision to impound—to seize—the vehicle was lawful. ... More specifically, the question is whether impoundment ‘was reasonably necessary based on the totality of the evidence.’ " Commonwealth v. Crowley-Chester, 476 Mass. 1030, 1031 (2017), quoting from Oliveira, supra at 14.
The Commonwealth argues, and the motion judge concluded, that impoundment of the vehicle was justified by the danger that the vehicle, if left unattended along the side of the road, might be vandalized or stolen and by the fact that the only passenger, the defendant, was not authorized to drive the car.
We find the recent decision in Crowley-Chester, supra, instructive in this case. There, the Supreme Judicial Court concluded that impoundment of a vehicle was unreasonable where the car was parked in a "high crime" area at 3:00 a.m. Crowley-Chester, supra at 1031. The court reasoned that without more, impoundment was not justified by the vehicle's presence in an area where there was high incidence of drug, firearm, and violent crime, but where the record did not disclose any specific danger of damage or threat of theft or vandalism of the vehicle. Id. at 1031-1032.
Here, Officer Ramos testified that the vehicle was stopped in a "high crime area" where he had responded to several instances of shootings, firearm offenses, gang violence, and domestic violence. As in Crowley-Chester, the officer's testimony provided no evidence that the vehicle was at any risk of danger by virtue of the area's high crime character or that the vehicle's presence on the street was otherwise a danger to public safety. The Commonwealth argues that Crowley-Chester is inapposite because there the vehicle was already legally parked when officers approached, and here the vehicle was stopped by police. However, there is no evidence in the record to establish that the vehicle here was not parked legally. Rather, the vehicle "rolled" for quite some distance and came to a stop "in a location of the driver's choosing, rather than in a location dictated by the police," id. at 1032, on a street with bus stops and parking spaces some two blocks from where police initially signaled. See ibid. (distinguishing Commonwealth v. Eddington, 459 Mass. 102, 104-105, 109 [2011], because there the vehicle location was not of the driver's choosing but was dictated by police).
We conclude that, absent facts in the record supporting a finding of a risk that the vehicle might have been stolen or vandalized or that the location of the car posed some safety risk, the Commonwealth has not met its burden to establish that impoundment was reasonable and the evidence lawfully obtained.
The order denying the defendant's motion to suppress is reversed. A new order shall enter allowing the motion.
So ordered.
Reversed; new order entered.