United States District Court, D. Massachusetts
DOUGLAS P. WOODLOCK District Judge.
Joseph Kennedy moved to suppress physical evidence - ammunition - seized from a car he was operating immediately before his May 7, 2014 arrest on a supervised release warrant and some twelve hours after a larceny there was probable cause to believe he committed. I conducted an evidentiary hearing to determine the circumstances surrounding the recovery of this evidence. I denied Kennedy's motion to suppress, concluding that there was probable cause to believe the car contained evidence of the larceny offense and that the car itself was an instrumentality of the offense. This Memorandum provides an extended explanation for my decision.
I. FINDINGS OF FACT
In the spring of 2014, Kennedy was on federal supervised release. A warrant had been issued for Kennedy's arrest due to a violation of the terms of his supervision. The United States Marshals Service and the Fugitive Unit of the Boston Police Department (BPD) were conducting surveillance on May 7, 2014 in an effort to arrest Kennedy on the outstanding warrant. They were stationed near 34 O'Meara Court in Charlestown, Massachusetts, where Kennedy had been living with Maureen Burgoyne, his longtime partner.
Earlier that same day, the Quincy Police Department put out a "Be on the Lookout" notification ("BOLO") for Kennedy, which was conveyed orally to the BPD officers. Sergeant Brian Albert testified at the suppression hearing that the BPD officers were informed "that there was a larceny in Quincy in which a safe with some ammunition, possibly some drugs, OC spray, pepper spray, and things of that nature were stolen from a residence in Quincy." The BOLO from the Quincy Police specifically identified Joseph Kennedy as its subject and also provided a description of the car that Kennedy was expected to be driving, a gray Honda Fit with license plate number 155WS3.
At approximately 3:00 p.m., the BPD officers received a radio report that a gray Honda Fit with Massachusetts license plate number 155WS3 was turning onto Medford Street. Kennedy was identified as the operator of the vehicle based on photographs provided by a United States Marshals Service earlier in the day. Kennedy parked the car and was walking on Medford Street when officers approached him. After a brief chase, officers apprehended Kennedy and arrested him on the outstanding federal warrant. Kennedy was taken to the District One station of the BPD to be booked.
After Kennedy's arrest, the remaining officers returned to the car. Sergeant Albert testified that there was a lot of clutter and debris in the car. He saw an object sitting high in the back seat, with items including bags and a jacket on top of and around it. Sergeant Albert testified that it "gave the appearance of a box-shaped object" and that he could see a small section of gray. Two photographs of the object, which turned out to be the gun safe, were admitted at the hearing. The photographs were taken with the back car door open, and one showed a dark bag covering the top of the object and the other showed the safe after the bag had been removed. Sergeant Albert testified that the safe had even more items around it than depicted in the photographs before the door was opened and suggested that some items may have shifted during the movement of the door. He testified he believed the covered object was the stolen gun safe based on the earlier communication from the Quincy Police Department about Kennedy's larceny of a gun safe, the shape and size of the object, and the small amount of metallic-looking gray that he saw. There was no photograph taken of the item that later turned out to be the safe from before the door of the car was opened.
Based on Sergeant Albert's testimony at the hearing, I find that the gun safe cannot be said to have been in plain view. Instead, its semi-concealed appearance provided circumstantial evidence that the box-shaped object Sergeant Albert observed sitting high on the back seat was the gun safe. It was covered almost completely, except for a small section of gray, by a bag and other debris. The size, general shape, and color were consistent with Sergeant Albert's understanding of what a gun safe looks like, but the safe itself could not be seen. Sergeant Albert's report of his observation of the covered object contributes to my finding, discussed more fully below, that there was probable cause to believe the car contained evidence of the Quincy larceny.
Sergeant Albert decided to tow the vehicle and the officers conducted a search on the street, which Sergeant Albert referred to as an inventory search. He testified that the car needed to be towed because "I believe that there was possible evidence to a crime in the car. The vehicle itself could be evidence to a crime as the getaway vehicle. There could be ammunition and firearms in that vehicle, which would cause a danger to the public."
Maureen Burgoyne came to the area while the car was being inventoried and offered to take custody of the car, which the officers refused. During the search, the officers recovered a gray safe matching the description of the safe stolen from Quincy and rounds of ammunition, among other items. The car was towed to the precinct, after which the inventoried items were categorized and noted in an inventory report. Kennedy was subsequently indicted for being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1).
I begin by finding as a foundation for my motion to dismiss analysis that Kennedy has standing to claim the Fourth Amendment's protection from unreasonable searches. Although he did not own the car, he had a reasonable expectation of privacy in it. "In the context of a vehicle search, a defendant must show a property [or] possessory interest in the automobile' in order to establish a reasonable expectation of privacy." United States v. Almeida, 748 F.3d 41, 47 (1st Cir. 2014)(quoting United States v. Symonevich, 688 F.3d 12, 19 (1st Cir. 2012)). The government does not contest Kennedy's standing for purposes of this motion, although I believe it is necessary independently to determine Kennedy's standing before turning to the merits of his motion to dismiss.
Kennedy was not the title holder of the car; the car was owned by Kennedy's partner Burgoyne. She submitted an affidavit that was received as testimony during the hearing affirming that he was a frequent, authorized user of the car. The car contained his personal effects, and he had been in sole possession of the car for at least two days with the title holder's permission. Kennedy's status as a frequent authorized user of the car and his sole use of the car during the period of time before the arrest are among the factors on which I rely in ...