U.S. v. Sanchez, Criminal Docket No. 06CR10334-NG.

• Decision Date: 26 February 2008
• Docket Number: Criminal Docket No. 06CR10334-NG.
• Citation: 535 F.Supp.2d 216
• Parties: UNITED STATES v. Ruben SANCHEZ, Defendant.
• Court: U.S. District Court — District of Massachusetts

535 F.Supp.2d 216

UNITED STATES v. Ruben SANCHEZ, Defendant.

Criminal Docket No. 06CR10334-NG.

United States District Court, D. Massachusetts.

February 26, 2008.

COPYRIGHT MATERIAL OMITTED

Timothy Q. Feeley, United States Attorney's Office, Boston, MA, for United States.

William W. Fick, Federal Defender's Office, Boston, MA, for Ruben Sanchez.

MEMORANDUM AND ORDER RE: MOTION TO SUPPRESS

GERTNER, District Judge:

Defendant Ruben Sanchez ("Sanchez") has moved to suppress both physical evidence and statements he made shortly following his arrest. Mot. to Suppress (document # 23); Mem. Supp. Mot. to Suppress ("Def. Mem.") (document # 25). The United States has opposed. Gov. Opp. to Mot. to Suppress ("Gov. Mem.") (document # 26). The Court held a two-day evidentiary hearing on the Motion. Afterward, the government and defendant submitted supplemental memoranda in support of their respective positions. Gov. Suppl. Mem. Opp. ("Gov. Second Suppl. Mem.") (document # 39); Def. Post-Hr'g Br. Supp. Mot. Suppress ("Def. Suppl. Mem.") (document # 42).

As stated in open court on January 29, 2008, the Motion to Suppress is DENIED (document # 23) in its entirety.

Because the defendant's Motion to Suppress has two unrelated halves, the Court will address each separately.

I. MOTION TO SUPPRESS THE PHYSICAL EVIDENCE RECOVERED FROM SANCHEZ'S MOTORCYCLE

Sanchez first argues that the firearm constituting the basis for this prosecution was illegally taken from his motorcycle after he was arrested. He claims that due to the officer's failure to lawfully impound the vehicle, that the subsequent inventory search was nullified.

A. Facts Leading to Impoundment

These facts are largely, though not entirely, undisputed.

On September 21, 2006, the Melrose Police Department obtained a warrant for Sanchez's arrest based on threats he allegedly made to his girlfriend, Kathleen Pazyra ("Pazyra"). Transcript of Evidentiary Hearing (July 31-Aug. 1, 2007) ("Tr.") at 8-9, 59; Ex. 1. The next day, detective David Roy ("Roy") was having supper at the Liberty Bell Restaurant in Melrose. He was on duty at the time, and was aware of the active warrant for Sanchez's arrest. Tr. at 8-10. As he was sitting at the counter, he saw a woman — whom he later identified as Pazyra — enter the restaurant and sit by herself at a heal He did not recognize her at that time. Tr. at 15-16.

By coincidence, Officer John Slaney ("Slaney") of the Melrose Police also Went to the Liberty Bell that evening Slaney ordered food to go and chatted with Roy. Tr. at 14-15, 16.

While Roy and Slaney were talking, a motorcycle approached the Liberty Bell and parked. Its driver entered the restaurant, then approached Pazyra and had a conversation with her. Roy identified the motorcycle's driver as Sanchez, based on a photograph he had seen and printed out earlier in the day. Tr. at 18. Slaney exited the restaurant, and was followed a short time later by Roy. Tr. at 19-20.

When Roy rejoined Slaney outside the restaurant, Slaney told him that he had checked the registration plate on Sanchez's motorcycle. Slaney's search revealed that the license plate was issued for a 1976 Honda, rather than the Harley-Davidson Sanchez was driving. Tr. at 20. Furthermore, the license plate had been revoked for lack of insurance, and was registered to one Robert Barrett. Tr. at 24. Slaney and Roy planned to arrest Sanchez on the outstanding warrant when he exited the restaurant. See Tr. at 20-21.

Sanchez and Pazyra exited the restaurant and continued talking while standing near the motorcycle. Roy watched them talk for a time, then approached them, saying "Kathleen," and hoping to elicit a response from Pazyra; she did respond. Tr. at 28. He also asked Sanchez, "Are you Ruben Sanchez?" After Sanchez replied in the affirmative, Roy arrested him. Tr. at 29-30.

Roy next called the officer in charge of the shift to request permission to tow Sanchez's motorcycle, which he believed was required by Melrose Police policy. Tr. at 29, 32-33; Ex. 4. He did so "[b]ecause the wrong plate was on it, it was attaching plates that didn't belong on it." Tr. at 32. Roy accordingly cited Sanchez for violating Massachusetts General Laws ch. 90, § 23. Tr. at 36-37. He also thought that Sanchez would not "be out of the station in a short period of time." Tr. at 33. The officer in charge issued permission to tow the motorcycle. At no time did Roy ask Sanchez whether he had an alternative means for moving the motorcycle or ask the owner or manager of the Liberty Bell, in whose parking lot it was located, whether the motorcycle should be removed. Nor was there a posted rule against overnight parking. Tr. at 86, 94, 114.

Roy then began to perform an inventory search of the motorcycle. He opened the unlocked saddlebags near the rear wheel and found a firearm. Tr. at 39-40. That firearm forms the basis for Sanchez's federal charge.

B. Legal Standards Governing the Impoundment Decision

A seizure — including by impoundment — conducted without a search warrant is "per se unreasonable, under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions." Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (internal quotations omitted). One such exception involves what the Court has called the "community caretaking function," based on public safety interests. South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (citing Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)).

The Supreme Court has held that to be constitutional a reasonable, standard police procedure must govern the decision to impound. Colorado v. Bertine, 479 U.S. 367, 375-76, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). In Bertine, the defendant challenged the inventory search of his vehicle because the, police officers had discretion to choose between impounding the vehicle or parking it in a public place. The Court held that police officers may be invested with discretion as to whether to impound a vehicle as long as some "standard criteria" exist to channel the police's discretion, and the impoundment decision is made "on the basis of something other than a suspicion of evidence of criminal activity." Id. at 375, 107 S.Ct. 738.

The reason for these requirements and their careful enforcement are clear. Vehicle impoundments, and searches coincident with them, would vitiate the Fourth Amendment's warrant requirement if used as a ruse for a criminal investigative search. See also Florida v. Wells, 495 U.S. 1, 4-5, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) (analyzing policy with respect to inventory search following impoundment, and stating that where the police "had no policy whatever [concerning how to treat closed containers] ... the instant search was not sufficiently regulated to satisfy the Fourth Amendment....").¹

C. Application to This Case

1. Whether Standard Criteria Existed To Channel Police Discretion

Sanchez argues that the Melrose Police's impoundment policy was facially deficient because it deals only with standards for when a vehicle may not be impounded, and therefore permits unchecked discretion as to when a vehicle should be impounded. Def. Suppl. Mem. at 7 (document # 42). His contention is not persuasive.

True, the Melrose Police policy, as written, pertains mainly to "Vehicle Inventory," not to impoundment per se. General Order GO3-02000, Ex. 4 at 1 Moreover, to the extent it addresses impoundment, it dictates the circumstances in which a vehicle should not be impounded. Tr. at 44. The policy states "[a] vehicle shall not be inventoried if the vehicle is: [1] Legally parked and locked[;] [2] Removed by a third party[;] [3] Towed at the owner/operator's request (disabled vehicle)[; or] [4] If owner request [sic] a reasonable and lawful alternative for removal." Id. (emphasis added).

But an impoundment policy does not have to look like the tax code to be sufficient under Bertine. The Supreme Court has emphasized the importance, of "standardized criteria or established routine," Wells, 495 U.S. at 4, 110 S.Ct. 1632 (citing Illinois v. Lafayette, 462 U.S. 640, 648, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1988)) (emphasis added), the latter clause suggesting that the policy need not be in writing. See United States v. Hawkins, 279 F.3d 83, 85-86 (1st Cir.2002) (considering umiritten aspects of inventory search policy); cf. Coccia, 446 F.3d at 238-39.

Here, the fair inference of the words "legally parked and locked," together with established Melrose practice and, the approval process, adequately structure police discretion to meet the standards of Bertine. Detective Roy interprets — not unfairly — "legally parked and locked" not to include vehicles that are violating Massachusetts automobile law, including laws with respect to licensing. Such a vehicle could not be legally driven from the scene by anyone, including the arrested Sanchez, who was not the license holder.

In addition to the policy language, established Melrose routine suggested the vehicle had to be towed. Roy testified that, "based on [his] experience," Tr. at 94, the Melrose Police will tow a vehicle if it is violating a law, if it is damageil to the point of immobility, or if the vehicle is unlawfully parked and the owner or operator is arrested. See Tr. at 40, 92, 93-94. In fact, Roy suggested that in those situations, the decision to request impoundment of the vehicle was not discretionary. See Tr. at 40 ("You'd have to tow [the vehicle]."), 94 ("[I]f the vehicle is illegal, damaged or there's an arrest, ... they'll tow the vehicle."), 92 (similar testimony); cf. Tr. at 93 (suggesting uncertainly that there may be discretion to tow where the operator is arrested and the vehicle is lawfully parked).

Finally, that policy indicated that the officer at the scene did not have sole discretion as to whether a vehicle should be impounded. He or she must radio the...