Commonwealth v. Cases)1

• Citation: 944 N.E.2d 153,459 Mass. 102
• Decision Date: 10 March 2011
• Docket Number: SJC–10716.
• Parties: COMMONWEALTHv.Gerald EDDINGTON (and six companion cases).1
• Court: United States State Supreme Judicial Court of Massachusetts

459 Mass. 102

944 N.E.2d 153

COMMONWEALTH

v.Gerald EDDINGTON (and six companion cases).1

SJC–10716.

Supreme Judicial Court of Massachusetts, Hampden.

Submitted Nov. 2, 2010.Decided March 10, 2011.

Adriana Contartese for Gerald Eddington.Thomas F. McGuire, Fall River, for Jessica Cappas.Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.Dana Alan Curhan, Boston, for Committee for Public Counsel Services, amicus curiae, submitted a brief.Present: IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.IRELAND, J.

The defendants, Gerald Eddington and Jessica Cappas, were indicted on multiple firearm offenses,² and Eddington also was indicted on a charge of operating a motor vehicle with a suspended license, in violation of G.L. c. 90, § 23. After an evidentiary hearing, a Superior Court judge allowed Eddington's motion to suppress ³ the firearm and ammunition recovered by police during an inventory search of an automobile driven by Eddington, in which Cappas was a passenger, on the ground that the firearm and ammunition were obtained as a result of an unlawful impoundment.^{,4 5} A single justice of this court granted the Commonwealth leave to pursue interlocutory appeals from the judge's orders, see note 5, supra, in the Appeals Court, see Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The Appeals Court reversed the orders of suppression. Commonwealth v. Eddington, 76 Mass.App.Ct. 173, 179, 920 N.E.2d 883 (2010). We granted Eddington's application for further appellate review. Because we conclude that the impoundment was justified in the circumstances of this case, we reverse the allowance of the motion to suppress the firearm and ammunition.

1. Background. In reviewing a decision on a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). We summarize the judge's findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing.⁶ See Commonwealth v. Garcia, 443 Mass. 824, 828, 824 N.E.2d 864 (2005).

On April 29, 2007, at approximately 4:15 a.m., two officers of the Springfield police department, David Martin and Matthew Vickery, undertook surveillance (in a marked police cruiser) of an “after-hours” party at a residence on the corner of Colonial Avenue and Wilbraham Road. The officers were familiar with the residence because it was the scene of regular parties that frequently involved criminal activities that required their response, including fighting, shootings, two murders, public drinking outside the residence, and illegal parking.

Shortly after arriving at the residence, the officers saw the defendants leave the party carrying what appeared to be bottles of beer. The defendants walked across Wilbraham Road and over to a parking lot adjacent to a church. They got into an automobile, taking their bottles with them, and drove out of the parking lot. They turned left on Wilbraham Road, and then turned left on Suffolk Street. The officers followed and signaled for them to stop by using their blue lights and siren. The automobile pulled over promptly and stopped alongside a curb on the side of the street.⁷ This location was a short distance from the party the defendants had attended.

The officers approached the automobile to investigate the possibility of the presence of open containers of alcoholic beverages. Their suspicions were confirmed as soon as Officer Martin looked inside the automobile while asking Eddington, who was driving, for his license and registration. Two opened bottles of beer were in plain view inside the cup holders on the console between the front seats.

Eddington told the officers that he did not have a license, and he did not have the automobile's registration. Officer Martin started preparing citations for the defendants for having open containers of beer in the automobile. He then obtained confirmation that Eddington's license had been suspended. Eddington was removed from the automobile and placed under arrest for operating a motor vehicle with a suspended license. The officers determined that neither Eddington nor Cappas owned the automobile. Rather, from a check of the automobile's registration plate number, the officers learned that the automobile was registered to a Jessica Rodriguez.

Because it was about 4:30 a.m., the officers decided not to contact Rodriguez to have her retrieve her automobile. The officers believed Suffolk Street (near Wilbraham Road) to be a “high crime” area, and were concerned that if left parked at the curb, the automobile would be vulnerable to theft or damage. ⁸ Consequently, they decided to impound the automobile and arranged for it to be towed. Cappas was ordered out of the automobile. An inventory search was performed pursuant to the written policy of the department, and a loaded revolver was recovered under the front passenger seat. ⁹ Cappas was arrested.

As relevant here, the judge suppressed the firearm and ammunition, concluding that the officers' decision to impound the automobile was not justified. Because the automobile was lawfully parked, impoundment could only be justified if there was a risk of theft or threat of vandalism, which the judge determined that the Commonwealth did not show. Specifically, the judge explained that the officers' testimony that the vicinity of the stop was a “high crime” area was insufficient to establish a likelihood of theft or vandalism because “[t]he nature of the crimes” that rendered the location of the stop a high crime area was not described.¹⁰

The Appeals Court reversed, concluding that the case falls under “the long-standing rule that impoundment of a car pulled over may be justified by specific evidence of a danger that the car left unattended might be vandalized or stolen when that danger is combined with a need to protect the police from false claims of loss.” Commonwealth v. Eddington, 76 Mass.App.Ct. 173, 177, 920 N.E.2d 883 (2010), citing Commonwealth v. Ellerbe, 430 Mass. 769, 775, 723 N.E.2d 977 (2000). The Appeals Court found the following factors determinative: the automobile was parked in a location dictated by the circumstances of the stop and not by the driver's choice; the location of the stop was a “high crime” area; the defendants were not able to move the automobile; the owner was not present; it was impracticable, on account of the time at which the stop occurred, to contact the owner; and the police were not constitutionally obligated to contact the owner. Commonwealth v. Eddington, supra at 177–178, 920 N.E.2d 883. The Appeals Court explained that these factors demonstrated “a sufficient risk that the car might be vandalized or stolen so that, when combined with the risk of false claims for loss against the police, the impoundment of the car, pursuant to a constitutionally adequate police policy, was reasonable and thus permissible under the Fourth Amendment.” Id. at 178, 920 N.E.2d 883.

2. Further appellate review. In this case, Cappas's appellate counsel, unlike Eddington's appellate counsel, did not file an application for further appellate review. We have stated that, in civil cases involving multiple parties, “we will not consider the arguments of a wholly unsuccessful party who did not seek further appellate review.” Bradford v. Baystate Med. Ctr., 415 Mass. 202, 205, 613 N.E.2d 82 (1993). We noted that this principle “is consistent with our rule that one who does not appeal from a judgment is not entitled to more favorable treatment on appeal than that expressed in the judgment.” Id. at 205 n. 4, 613 N.E.2d 82. In addition, the principle serves to provide fair notice to the Commonwealth of what issues and what defendants will be before us. It also enables the clerk of the Appeals Court to satisfy the prescribed duties concerning the issuance of rescripts of the Appeals Court. See Mass. R.A.P. 23, as appearing in 367 Mass. 921 (1975) ( “The timely filing ... of an application for further appellate review will stay the rescript until disposition of the ... application.... If the [application] is denied, the rescript shall issue forthwith unless the appellate court or a single justice orders otherwise. If an application for further appellate review is granted the rescript of the Appeals Court shall not issue to the lower court”). We thus adopt, on and after the date of this opinion, the rule set forth in Bradford v. Baystate Med. Ctr., supra at 205, 613 N.E.2d 82, to criminal cases, requiring each defendant in a multiple defendant case (whether consolidated or not) who seeks further appellate review to file a timely application. In view of our decision in this case, and the procedural posture below (the trial court was notified that an application for further appellate review was filed in connection with the Appeals Court case and it appears that no further proceedings in the trial court were conducted), Cappas will not be subject to the new rule. Rather, our decision will apply to both Eddington's and Cappas's cases.

3. Propriety of the impoundment. 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. Antobenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974). “Under both the Federal and Massachusetts Constitutions, analysis 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 meets those strictures.” ¹¹ Commonwealth v. Ellerbe, 430 Mass. 769, 772–773, 723 N.E.2d 977...