Commonwealth v. Oliveira

• Decision Date: 28 March 2016
• Docket Number: SJC–11972, SJC–11973.
• Citation: 47 N.E.3d 395,474 Mass. 10
• Parties: COMMONWEALTH v. Jemaul R. OLIVEIRA (and a companion case).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

474 Mass. 10

47 N.E.3d 395

COMMONWEALTH

v.Jemaul R. OLIVEIRA (and a companion case¹ ).

SJC–11972, SJC–11973.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Jan. 8, 2016.

Decided March 28, 2016.

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.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

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 judge. Commonwealth v. Jones–Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (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 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 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 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, 944 N.E.2d 153 (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, 723 N.E.2d 977 (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, 944 N.E.2d 153 ; Ellerbe, supra at 773 n. 8, 723 N.E.2d 977. See generally Commonwealth v. Brinson, 440 Mass. 609, 612, 800 N.E.2d 1032 (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.

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, 723 N.E.2d 977

; 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, 127 S.Ct. 1021, 166 L.Ed.2d 769 (2007) ; to protect public safety where the vehicle, as parked, creates a dangerous condition, see Brinson, 440 Mass. at 615–616, 800 N.E.2d 1032 ; Commonwealth v. Henley, 63 Mass.App.Ct. 1, 5–6, 822 N.E.2d 313 (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, 723 N.E.2d 977 (“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, 12 N.E.3d 348 (2014)

; Commonwealth v. Vuthy Seng, 436 Mass. 537, 551–555 & n. 16, 766 N.E.2d 492, cert. denied, 537 U.S. 942, 123 S.Ct. 342, 154 L.Ed.2d 249 (2002), S.C., 445 Mass. 536, 839 N.E.2d 283 (2005) and 456 Mass. 490, 924 N.E.2d 285 (2010). See also Commonwealth v. Rostad, 410 Mass. 618, 620, 574 N.E.2d 381 (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, 39 N.E.3d 458 (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, 944 N.E.2d 153

. 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, 800 N.E.2d 1032

(“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 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...