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13-P-773 Appeals Court
COMMONWEALTH vs. ATREYO CROWLEY-CHESTER.
No. 13-P-773.
Hampden. September 8, 2014. - January 5, 2015.
Present: Berry, Kafker, & Hanlon, JJ.
Firearms. Evidence, Firearm. Practice, Criminal, Motion to
suppress. Search and Seizure, Inventory, Impoundment of
vehicle. Constitutional Law, Search and seizure,
Impoundment order. Due Process of Law, Seizure of motor
vehicle.
Complaint received and sworn to in the Springfield Division
of the District Court Department on March 15, 2011.
A pretrial motion to suppress evidence was heard by Robert
A. Gordon, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Margot Botsford, J., in the Supreme
Judicial Court for the county of Suffolk, and the case was
reported by her to the Appeals Court.
Jane Davidson Montori, Assistant District Attorney, for the
Commonwealth.
Patrick A. Michaud for the defendant.
2
BERRY, J. The defendant was charged with carrying a
firearm without a license, in violation of G. L. c. 269,
§ 10(a), and possession of a firearm or ammunition without a
firearm identification (FID) card, in violation of G. L. c. 269,
§ 10(h). After an evidentiary hearing, a District Court judge
allowed the defendant's motion to suppress the loaded firearm
recovered by police during an inventory search following the
impoundment of the Honda automobile in which the defendant had
been a passenger.1
Suppression was based on the judge's finding that the
impoundment and inventory of the Honda were not necessary.
However, the governing standard is not one of necessity; rather
the standard is whether the police actions in impounding and
conducting an inventory search of a motor vehicle are reasonably
undertaken based on the specific facts and circumstances
presented. For the reasons that follow, we conclude that the
impoundment, towing, and inventory of the automobile were
reasonable, constitutionally appropriate, and compliant with the
written police impoundment policy. Accordingly, we reverse the
order allowing the motion to suppress.
1. Background. We summarize the findings of the motion
judge, supplemented with undisputed facts adduced at the
1
A single justice of the Supreme Judicial Court granted the
Commonwealth leave to pursue an interlocutory appeal.
3
suppression hearing. Commonwealth v. Isaiah I., 448 Mass. 334,
337 (2007), S.C., 450 Mass. 818 (2008). On March 15, 2011,
Springfield police Officers Longo and Canini were on routine
patrol on William Street in Springfield. At approximately 3:00
A.M., the officers observed a dark-colored Honda automobile
legally parked next to a vacant lot with its engine running and
its lights off. Given the late hour, the running engine, and an
area known to the officers to have a high crime rate, the police
officers shined the police cruiser's spotlight toward the inside
of the Honda and saw that it contained two occupants. As the
officers illuminated the vehicle's interior, the defendant
passenger slouched down in his seat.
The officers got out of their cruiser and approached the
Honda, shining flashlights into the parked car as they
approached. Officer Longo saw the defendant quickly move his
left hand between the center console and his left leg in an
apparent attempt to conceal a dark-colored object in his hand.
(Later, it was established that the dark object in the
defendant's hand was a glove.)
Officer Canini ordered both the driver and the defendant to
show their hands and remain still. The two did not comply with
the show-hands command. As Officer Canini continued to approach
the driver's side of the Honda, he saw in plain view a silver
folding-blade knife in the center cup holder. Officer Canini
4
ordered the driver and the defendant to step out of the vehicle.
As the driver did so, he put his right hand into his jacket
pocket. Officer Canini told him to remove his hand from the
pocket. As the driver did that, a white, rock-like substance
fell to the ground. Based on his experience, Officer Canini
recognized the substance to be "consistent with crack cocaine."
The driver was placed under arrest. The officers seized the
knife.
Following his arrest, the driver requested that the
officers allow the defendant to drive the Honda from the site.
However, a computerized check revealed that the defendant did
not have a driver's license. Given the foregoing state of
affairs, the officers decided the car should be towed from the
scene. Pursuant to the Springfield police department's written
policy concerning the impoundment and towing of a motor vehicle,
an inventory search of the Honda and its contents was conducted.
See generally Commonwealth v. Bishop, 402 Mass. 449, 451 (1988).2
2
The written Springfield police towing and impoundment
policy provides as follows.
"POLICY
"It shall be the policy of this department to
inventory the contents of all motor vehicles that are towed
by his department. The purposes of this inventory are to:
"1. Determine whether there is any personal property in the
vehicle that needs to be protected from loss or damage.
5
On the floor behind the passenger's seat, Officer Longo
found gloves, a ski mask, a hooded sweatshirt, and a pair of
3
sunglasses. In the trunk, the police found a backpack with the
defendant's name, "Atreyo," inscribed on it. Under the written
police inventory policy, the backpack was opened by the police,
and within the backpack were found a loaded handgun, another
"2. To protect the department and its personnel from claims
of a failure to protect such property.
"3. To protect the department and its personnel from false
claims of loss of property that was never in the vehicle.
"4. To protect departmental personnel and the public
against injury from dangerous substances or items that may
be in the vehicle.
"PROCEDURE
"Whenever a motor vehicle is ordered towed by a
department member, that member shall assume the
responsibility for inventorying and safeguarding the
contents of the vehicle. The scope of this inventory shall
include any locked or closed containers within the vehicle
that can be opened without damage as well as any locked
portions of the vehicle itself that can be accessed without
causing damage (e.g. glovebox, trunk, suitcases, boxes
etc.) The department member ordering the tow shall list all
items found within the vehicle in the remarks section of
the tow sheet. Any monies or articles of value that may be
subject to loss or damage shall be taken and submitted to
the property division for safekeeping. A notation as to
which items were so removed as well as the property tag
numbers shall be made in the remarks section of the tow
sheet. Anything believed to be dangerous, contraband, or
evidence of a crime shall be seized and tagged and a report
submitted to the proper bureau."
3
It is logical to extrapolate that the instrumentalities
found in the backseat were potential burglarious tools.
However, because these items were found during the inventory
search, we do not add them to the calculus concerning the
original decision to impound the Honda.
6
hooded sweatshirt, gloves, and a pay stub with the defendant's
name on it.
On appeal, the Commonwealth's principal points in
opposition to the suppression order are that (1) the motion
judge applied the incorrect standard of legal necessity in
suppressing the firearm found following the Honda's impoundment
and the inventory search, and (2) the judge incorrectly relied
on, and deferred to, the limited analysis of the police action
entries in a six-month computerized dispatch log (CAD).4 (The
CAD document itself was in evidence.) The motion judge's
reliance, the Commonwealth submits, was misplaced because the
defense analyst's summary of the CAD was substantially
incomplete and did not fully account for a number of crime-
related entries in the CAD -- which included a series of calls
to the police station, with follow-ups of police dispatches and
police reports involving not only serious criminal activities
generally, but also, in particular, involving criminal and
suspicious activities with motor vehicles.5
4
The computerized list is also referred to in the record as
a police call activity report.
5
The defense analyst presented the following limited and
inaccurate summary of the CAD exhibit.
"The bulk of what I saw from the incidents log that I
was provided and that's been submitted to you were these
calls for well-being checks, false alarms, domestic
disturbances, traffic-related offenses, just general
7
2. Propriety of the impoundment and inventory search. "On
a motion to suppress evidence seized during a warrantless
search, such as an inventory search as was done here, it is the
Commonwealth's burden to establish that the evidence was
lawfully obtained." Commonwealth v. Eddington, 459 Mass. 102,
108 (2011) (Eddington). "[T]he propriety of the impoundment of
the vehicle is a threshold issue in determining the lawfulness
of the inventory search." Commonwealth v. Garcia, 409 Mass.
675, 678 (1991). With respect to the impoundment and inventory
search, under a written police policy, "an officer's judgment in
the matter is to be tested by what reasonably appeared to him at
the time" (emphasis added). Eddington, supra at 110-111,
quoting from Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 415
(1996). "The decisions demonstrate that our determinations are
fact driven, with the overriding concern being the guiding
touchstone of '[r]easonableness.'" Eddington, supra at 108,
quoting from Commonwealth v. Ellerbe, 430 Mass. 769, 776 (2000)
(applying reasonableness standard). Commonwealth v. Bienvenu,
callouts with a -- there was a sprinkling of what could be
considered more serious offenses. My memory has it about
maybe eight or so, a report of a robbery that type of
thing."
But this "sprinkling" description diminishes what the CAD
document actually states and omits a lot of the persistent
record of criminal activities in the area where the Honda was
parked. A more accurate summary of the entries taken from the
CAD appears infra.
8
63 Mass. App. Ct. 632, 634 (2005) (same). As these cases
establish, it is the reasonableness of the police action which
is central. Contrary to the suppression ordered in this case,
necessity is not the appropriate governing standard for
evaluating the propriety of an impoundment and inventory.
With respect to the reasonableness of a vehicle
impoundment, there are two rationales that may justify an
impoundment and subsequent inventory. One rationale for
impoundment and inventory of a motor vehicle involves public
safety. The second rationale for impoundment and inventory
involves the risk of property damage to a vehicle left parked on
a street and possible claims against the police for potential
damage to it if left unattended. "The impoundment of a vehicle
for noninvestigatory reasons is generally justified if supported
by public safety concerns or by the danger of theft or vandalism
to a vehicle left unattended" (emphasis added). Commonwealth v.
Brinson, 440 Mass. 609, 612 (2003) (Brinson), quoting from
Commonwealth v. Daley, 423 Mass. 747, 750 (1996). Both of these
justifications apply here.
First, we turn to the public safety rationale.6 The factual
complex including the police sighting of the Honda parked with
6
From all that appears of record, the judge did not
consider the public safety issue, but instead merely focused on
potential property damage claims. "I find that there was
sufficient evidence to conclude that the Honda Accord could have
9
the engine running in a high crime area; the defendant's
slouching down when the cruiser spotlight was directed at the
Honda; the defendant's additional furtive movements in trying to
hide a dark item (a glove) behind the center console; the
occupants' refusal to comply with the police order to show
hands; the plain sighting of the knife in the center cup holder;
the dropping of crack cocaine from the driver's pocket; and the
driver's request to have the unlicensed defendant drive the
Honda away, yielded a reasonable basis for the police to be
concerned, as a matter of public safety, that weapons and drugs
(in addition to the discovered knife) might be contained within
the Honda. See Commonwealth v. Dunn, 34 Mass. App. Ct. 702,
703-704 (1993) (impoundment justifiable if supported by reason
of public safety); Commonwealth v. Allen, 76 Mass. App. Ct. 21,
24 (2009).7
been parked on William[] Street without a danger of damage or
theft that would merit a tow pursuant to the Tow Policy."
7
The defendant argues that the Brinson case, in which an
impoundment and inventory of a car were found improper, is
controlling so that here the impoundment and inventory were also
not justified. But the Brinson case is distinguishable.
Brinson involved a lawfully parked car in a private lot that
presented "no public safety risk, and . . . no evidence of
threat of vandalism to justify impoundment." Brinson, supra at
614. We sketch certain other distinguishing details. In
Brinson, the defendant was not arrested within or near the
subject car. Indeed, the subject car was left parked in the
private lot, and the defendant was driven approximately a mile
away in a different car where the defendant engaged in a drug
transaction and was arrested. In short, in Brinson, there was
10
The inventory of the Honda included opening the backpack
found in its trunk. This action was compliant with the
Springfield police inventory policy which encompasses "locked or
closed containers within the vehicle." See note 2, supra. The
"protection of the public from the dangerous items which might
be in the vehicle" includes the interior of a locked trunk that
is "certainly not invulnerable to vandalism or theft."
Commonwealth v. Garcia, 409 Mass. at 682.
We next turn to the second rationale for impoundment and
inventory which pertains to the threat of potential vandalism or
damage to a vehicle, such as this Honda, were it to be left
vacant and parked on William Street in this high crime area.
The CAD record, which was admitted in evidence as a documentary
little nexus between the arrest and the car left in the private
lot. This case is markedly different, including but not limited
to, the following facts: the unusual/suspicious actions of the
two occupants within the Honda (the crouching down in the seat;
the furtive movement toward the console by the defendant
passenger, and the occupants' unwillingness to comply with a
police order to show hands); the plain view presence of the
knife in the console cup; and the crack cocaine falling from the
driver's pocket. Beyond these, the record in Brinson did not
suggest a risk of vandalism to the car. In contrast, at the
suppression hearing here both the police testimony and the CAD
provide evidence of potential risks to the Honda in a high crime
area with incidents of car theft, burglary, other suspicious
vehicles, and various crimes. So compiled, the record backdrop
in this case is closer to the Eddington case, which upheld the
impoundment and inventorying of an automobile, declining to
follow and distinguishing Brinson. See Eddington, supra at 109-
111.
11
exhibit at the suppression hearing,8 shows that, in just one six-
month period of time, there were documented police reports of
such offenses as vandalism, burglary, and suspicious vehicles
moving about. Indeed, a close examination of the CAD (contrary
to the expert's characterization of a "sprinkling" of serious
offenses9) reflects an area beset with burglaries, theft, and
motor vehicle offenses. Indeed, in just the six-month period
covered by the CAD, the police responses and reports involve
general criminal offenses, including but not limited to seven
incidents involving the breaking and entering of a residence;
four reports of larcenies; one armed robbery; and one incident
of vandalism. Further and, in particular, as to motor vehicles,
the CAD reflects two police responses involving the breaking and
entering of motor vehicles, two reports of suspicious motor
vehicles, and eight incidents called into the police station
which are referred therein generically as traffic control, but
which required, and received, a police response to the subject
area.
In addition to a fuller review of the actual entries in the
CAD criminal activity report and police responses thereto, to be
8
"We have consistently held that lower court findings based
on documentary evidence available to an appellate court are not
entitled to deference." Commonwealth v. Novo, 442 Mass. 262,
266 (2004).
9
See note 5, supra.
12
factored is Officer Longo's testimony at the suppression hearing
that, at the time of the Honda's impoundment, he was personally
aware of a number of crimes that had taken place in the area,
including car break-ins and stolen motor vehicles -- happenings
which the officer cited as providing a reasonable basis for
impounding the Honda, rather than leaving it abandoned on
William Street.
Thus, under the standard set forth in Commonwealth v.
Ellerbe, 430 Mass. at 776, there were reasonable police concerns
about potential theft or vandalism to the Honda if left
unattended. See Brinson, supra at 617. Based on the foregoing,
we conclude that both the public safety and vandalism/property
damage rationales supported the impoundment of the Honda and its
inventory search pursuant to the written Springfield police
policy. Accordingly, the order allowing the motion to suppress
is reversed. A new order shall enter denying the motion.
So ordered.