Opinion
15-P-963
04-08-2016
COMMONWEALTH v. DANE MITCHELL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order of a judge of the Superior Court allowing the defendant's motion to suppress a gun found in the course of an inventory search of a car. The Commonwealth contends that the judge erred because the decision to impound the car in which the gun was found was reasonable and the inventory search was properly conducted. We agree, and reverse the order.
Background. We summarize the facts found by the judge, referring as necessary to the evidence supporting those findings. See Commonwealth v. Eddington, 459 Mass. 102, 104 (2011). Just after midnight on June, 12, 2014, three Boston police officers assigned to the youth violence strike force were on patrol in the Mission Hill area of Boston. They stopped a car with excessively dark, tinted windows. When asked for a driver's license and motor vehicle registration, the defendant stated that his license had been suspended. The defendant and his passenger were ordered out of the car. The judge concluded that the officers "made a legal stop of the vehicle for a suspected motor vehicle infraction" and that the exit order was valid. The passenger was also unlicensed. Officer Frank Femino decided to impound the car, a decision the motion judge concluded was lawful. The officer then conducted an inventory search of the car under the authority of the Boston police department's motor vehicle inventory search policy, special order 05-013, (inventory policy). The inventory policy states in pertinent part: "The interior of all secured vehicles will be searched to discover valuable property. In conducting such search, officers will examine any place in the passenger compartment that could contain valuable property. This will include closed, but unlocked, containers in the passenger compartment." (Emphasis added.)
The judge also found that the officer conducted "what he considered to be an inventory search."
The hour was late and no request was made by the defendant or occupant to return the car to its owner. Compare Commonwealth v. Oliveira, 474 Mass. 10, 14-16 (2016).
While conducting the inventory search, Officer Femino noticed that the "carpet lining in the center console area was slightly pulled away from the plastic console frame." Based on his experience and training, he recognized this opening as a potential "void," a space within the interior of the vehicle in which one might put money, jewelry, narcotics, or firearms. Officer Femino then put his finger into the opening between the carpet lining and the plastic frame and pulled the carpet lining down, exposing a loaded firearm. The defendant and his passenger, neither of whom had a license to carry a firearm, were arrested.
The judge found that Officer Femino put "his fingers" into the opening. However the parties agree that the record supports only a finding that the officer put a finger into the opening.
The motion judge concluded that a search for a "hide" or "void" impermissibly exceeded the scope of a valid inventory search pursuant to the inventory policy, and that the inventory search became an investigatory search as a result.
Discussion. This court accepts a motion judge's subsidiary findings of fact absent clear error, but conducts an independent review of her ultimate findings and conclusions of law. Ibid. It is the Commonwealth's burden to establish that the evidence uncovered during a warrantless inventory search was obtained lawfully. Id. at 108.
"[A]nalysis 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 meets constitutional strictures, and (2) whether the conduct and scope of the search itself meet those strictures." Commonwealth v. Ellerbe, 430 Mass. 769, 773 (2000). "Inventory searches are reasonable 'where they are conducted in accord with standard procedures and are not a pretext, because they protect the defendant's property and ensure the police against later claims of theft or lost property.'" Commonwealth v. Eddington, 459 Mass. at 112, quoting from Commonwealth v. Wilson, 389 Mass. 115, 117 (1983). See Commonwealth v. Ellerbe, supra at 773 n.8.
Here, the inventory policy required the officer to examine any "place" in the car where valuables may be kept. The officer saw an anomaly in the rug, and knew from his training and past experience that goods or valuables could be hidden in such an area. After lifting the rug with a finger he was able to see the object in the hide. His search of the hide was authorized -- and indeed required -- by the inventory policy, was conducted in a reasonable manner, and was not unlawful. See Commonwealth v. Figueroa, 412 Mass. 745, 748-750 (1992).
The defendant attempts to distinguish Figueroa on the basis that the items seized in that case were in plain view in the car. The written inventory policy in effect in Figueroa allowed the search of "all open areas" of the car. Id. at 749. In Figueroa, the police noticed that the interior wall panel immediately to the rear of the driver's seat was detached from the wall. Id. at 747. After shining a flashlight into the gap and seeing a brown paper bag wrapped in a clear bag, the officers searched the space, discovering drugs. Id. at 747-748. The court relied, in part, on the fact that there was an "open area" in the car, and that "the officers [had not] physically uncovered the area in question." Id. at 749. The latter finding was necessitated by the policy, which permitted a search only of open areas. By contrast, the inventory policy here is not limited to open areas, and specifically authorizes the search of any "place" that could hold valuables. Cf. Commonwealth v. Caceres, 413 Mass. 749, 755 (1992) (inventory search of closed but unlocked container permitted where authorized by an inventory policy).
This case is closely analogous to United States v. Jackson, 682 F.3d 448 (6th Cir.), cert. denied, 133 S. Ct. 370 (2012). In Jackson, a police officer noticed ripped carpeting along the floor of the driver's seat during an inventory search. Id. at 451-452. The police officer moved the loose carpeting and discovered a firearm in a hide. Id. at 452. The court found that the written policy allowed the inventory of "all interior . . . areas" of the car, and concluded that the officer acted reasonably when he lifted the carpeting ("just the portion that appeared to have been disturbed") to find out whether a hiding space was concealed beneath the carpet. Id. at 456.
Similarly, the carpet here was askew, suggesting a hiding place. The search for a void fell within the parameters of the inventory policy. The initial displacement of the carpet was minimal. The officer acted reasonably in accordance with the inventory policy. The search was tailored to the policy and was "sufficiently tailored to only produce an inventory." Id. at 455.
Order allowing motion to suppress reversed.
By the Court (Meade, Sullivan & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 8, 2016.