Commonwealth v. Oliveira ( 2016 )

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SJC-11972
SJC-11973
COMMONWEALTH vs. JEMAUL R. OLIVEIRA
(and a companion case1).
Bristol. January 8, 2016. - March 28, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Constitutional Law, Search and seizure. Search and Seizure,
Motor vehicle, Inventory, Impoundment of vehicle.
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.
1
Commonwealth vs. Mitchell T. Violet.
2
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 to impoundment that was lawful and
practical under the circumstances, it was unreasonable and thus
unconstitutional to impound the vehicle and conduct an inventory
search. We therefore affirm the motion judge's allowance of the
defendants' motions to suppress the fruits of the inventory
search.
Background. The defendants, Mitchell T. Violet and Jemaul
R. Oliveira, were charged with shoplifting by concealing
merchandise, in violation of G. L. c. 266, § 30A, and unlawfully
carrying a firearm, in violation of G. L. c. 269, § 10 (a).2
Both moved to suppress the firearm located during the inventory
search of the vehicle that they used to travel to the department
store. We summarize the facts found by the motion judge
following the evidentiary hearing, supplemented where necessary
with undisputed testimony that was implicitly credited by the
2
Jemaul Oliveira was also charged with unlawfully
possessing ammunition, in violation of G. L. c. 269, § 10 (h).
3
judge. Commonwealth v. Jones-Pannell, 472 Mass. 429, 431
(2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337
(2007), S.C., 450 Mass. 818 (2008).
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
4
back into the store, where one of the defendants produced a
receipt for the merchandise in the bag.
The defendants were placed under arrest for shoplifting.3
The police told the defendants that Violet's vehicle would be
inventoried and towed. The defendants became "visibly
agitated," and Violet stated that he wanted his girl friend, the
registered owner of the vehicle, to come and pick it up rather
than to have it towed. The police did not honor Violet's
request, and conducted an inventory search of the vehicle. In
the unlocked glove compartment, the police discovered a loaded
firearm.4
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
3
The record is not clear, but it appears that the arrest
was for the stolen cologne and athletic apparel.
4
During the inventory search, or shortly thereafter, a
third police officer inside the store conducted a patfrisk of
the defendants and discovered that Oliveira had a bullet in his
possession. The police officers who conducted the inventory
search did not learn of the discovery of this bullet until after
the firearm had been found in the inventory search.
5
The motion judge did not make a finding as to when the
store manager asked that the vehicle be towed, but the only
inference supported by the evidence is that it occurred after
the firearm had been discovered during the inventory search.
Officer Robert St. Denis testified that he was present when the
store manager asked that the vehicle be towed from the property
5
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 Violet's request that the vehicle not be
towed and that its owner be permitted to get it was reasonable.
The judge also found that there was nothing about the
defendants' behavior or about the items found in the shopping
bag during the consent search of the vehicle "that would have
and that this request occurred after another officer had told
the store manager that the two defendants were going to be
arrested for shoplifting and for possession of the ammunition.
Because Officer St. Denis also testified that he did not know
that a bullet had been found in the possession of one of the
defendants until after he had found the firearm during the
inventory search, his testimony supports a finding that this
conversation occurred after the firearm had been found. The
store manager testified that he asked that the vehicle be towed
from the parking lot after the police officer informed him that
a gun had been found in the vehicle, stating, "I do not want a
gun in the car in my parking lot that's going to be left
overnight.
6
given rise to a suspicion that allowing the car to remain in the
[department store's] lot until the owner could retrieve it would
pose any risk of harm to the public."
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.
7
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 driver has been arrested"). Where the police's true purpose
for searching the vehicle is investigative, the seizure of the
vehicle may not be justified as a precursor to an inventory
search, and must instead be justified as an investigative
search. See Commonwealth v. White, 469 Mass. 96, 102 (2014);
Commonwealth v. Vuthy Seng, 436 Mass. 537, 551-555 & n.16, cert.
denied, 537 U.S. 942 (2002), S.C., 445 Mass. 536 (2005) and 456
8
Mass. 490 (2010). See also Commonwealth v. Rostad, 410 Mass.
618, 620 (1991) (inventory search "may not be allowed to become
a cover or pretext for an investigative search"); Commonwealth
v. Ortiz, 88 Mass. App. Ct. 573, 576-577 (2015).
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
9
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 or a person clearly authorized by the owner to drive the
vehicle was present and lawfully able to drive the vehicle away,
that is, whether the vehicle was properly registered and the
person was licensed to drive and neither under arrest nor under
the influence of drugs or alcohol. Where the owner or
authorized driver, for whatever reason, was unable to drive the
vehicle away, we consider whether the owner or authorized driver
offered the police a lawful and practical alternative to
impoundment of the vehicle. See Ellerbe, 430 Mass. at 774 ("the
police had no practical available alternative to towing the
vehicle, and thus no discretion to exercise"); Commonwealth v.
Caceres, 413 Mass. 749, 751 (1992) ("We conclude that there was
no practical available alternative to the removal of the vehicle
10
and to an inventory search of it. The defendant did not suggest
or request any alternative to removal 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, G. L.
c. 266, § 30A, so it was likely that he would be released on
bail after he was booked and could then notify his girl friend
to retrieve the vehicle or retrieve it himself. Even if he were
not quickly released on bail, he was legally entitled to make a
11
telephone call at the police station. See G. L. c. 276, § 33A.
During this telephone call, he could notify his girl friend of
the need to pick up her vehicle or ask another person to notify
her. Even if he were unable to reach her and was not released
on bail, there was no evidence that the vehicle was at
significant risk of being stolen or vandalized if it remained
overnight in the department store lot. Nor, where it was parked
properly in the lot, did it pose any public safety risk or any
obstruction to other vehicles. Nor was there evidence that the
lot was the private property of the department store; it was
described simply as a "public way" at the hearing. Even if the
lot were owned by the department store, no weight can be given
to the request of the department store manager to tow the
vehicle from the lot, because there is no evidence to support a
finding that the request occurred before the officers began the
inventory search. A seizure of a vehicle cannot be justified by
information learned from the seizure and subsequent search of
that vehicle. See Commonwealth v. Thibeau, 384 Mass. 762, 763-
764 (1981).
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
12
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.