Com. v. Bishop
| Decision Date | 06 June 1988 |
| Citation | 402 Mass. 449,523 N.E.2d 779 |
| Parties | COMMONWEALTH v. John R. BISHOP. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Claudia R. Sullivan, Asst. Dist. Atty., for Com.
James J. Gribouski, Salem, for defendant.
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.
This is the Commonwealth's interlocutory appeal from an order of a judge of the Superior Court suppressing evidence. We transferred the case to this court on our own motion. We affirm the order.
We summarize the motion judge's findings. On September 1, 1985, State Trooper Thomas Creighton observed a pickup truck, operated by the defendant, heading east on Route 290 in Worcester in excess of the speed limit. Creighton pursued and stopped the truck. After giving the defendant field sobriety tests, Creighton arrested him and charged him with operating a motor vehicle while under the influence of alcohol.
Creighton radioed the Holden State police barracks, informed a dispatcher of the arrest, and requested a tow truck to remove the defendant's truck. In response to the dispatcher's call, Herbert Publicover, who was employed by the Jenkins Shell service station, arrived at the scene of the arrest and towed the vehicle to the station. At the station, Publicover discovered a wallet bulging with money in the cab of the truck. He turned it over to the station's owner, Charles Jenkins, who called the Holden barracks. Trooper Dennis Mahoney was sent to the station, and Mahoney, Jenkins, and Publicover searched the truck. Two bankbooks and additional cash were found in the cab.
At Mahoney's direction, Publicover searched the open truck bed, and found a closed, zippered gym bag. With Mahoney next to him, Publicover unzipped the bag and removed its contents. Among other things, the bag contained additional cash wrapped in individual cellophane packets, and a white substance in a clear plastic bag. Upon Mahoney's return to the Holden barracks, Creighton asked the defendant if the gym bag was his, and the defendant replied, "I have one like it."
The defendant was indicted for driving while under the influence of alcohol, speeding, possession of cocaine with intent to distribute, and trafficking in cocaine. He moved to suppress all materials found in the gym bag, as well as the money taken from the wallet found in the cab of the truck. He also moved to suppress any statements made to the police on September 1, 1985. The judge suppressed evidence of the gym bag contents and of the defendant's statement, "I have one like it." He otherwise denied the motion. The Commonwealth appealed, but the defendant did not.
The Commonwealth argues that the search of the gym bag was a lawful inventory search. We do not agree. The judge permissibly found that the search was not authorized by any established police policy. Although there was a written State police policy regulating motor vehicle inventory searches, that policy was silent with respect to whether and under what circumstances closed containers should be opened and the contents inventoried. Thus, the written policy does not instruct the officer conducting the search with respect to whether he should inventory the container as one item or should open it and record the contents as separate items.
We have recognized that the existence of standard police procedures is important in determining the lawfulness of an inventory search. Commonwealth v. Wilson, 389 Mass. 115, 117, 448 N.E.2d 1130 (1983). Commonwealth v. Hason, 387 Mass. 169, 178, 439 N.E.2d 251 (1982). Commonwealth v. Matchett, 386 Mass. 492, 510, 436 N.E.2d 400 (1982). In Commonwealth v. Ford, 394 Mass. 421, 476 N.E.2d 560 (1985), a police officer found a firearm in plain view when he opened the trunk of the...
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