Law, Search and seizure. Search and Seizure, Motor vehicle,
Impoundment of vehicle.
Patrick A. Michaud for the defendant.
Cynthia Cullen Payne, Assistant District Attorney, for the
defendant, Atreyo Crowley-Chester, was charged in a complaint
with carrying a firearm without a license, in violation of G.
L. c. 269, § 10 (a.), and possession of a firearm or
ammunition without a firearm identification card, in
violation of G. L. c. 269, § 10 (h). The charges stem
from the recovery of a loaded firearm from a motor vehicle
after police officers impounded and conducted an inventory
search of the vehicle. The defendant filed a motion to
suppress, which a judge in the District Court allowed after
an evidentiary hearing. A single justice of this court
granted the Commonwealth leave to pursue an interlocutory
appeal, and the Appeals Court reversed. See
Crowley-Chester, 86 Mass.App.Ct. 804
(2015). The case is now before this court on further
appellate review. Because we conclude that the motion judge
properly allowed the motion to suppress, we affirm.
approximately 3 A.M. on March 15, 2011, Springfield police
Officers Matthew Longo and Jose Canini were on routine patrol
on Williams Street when they observed a Honda Accord
automobile parked on the street in front of a vacant lot and
across the street from a church. The vehicle's engine was
running, and its lights were off. Using the police
cruiser's spotlight, Officer Longo observed two
individuals seated in the front of the vehicle, both of whom
appeared to be making furtive type movements. The defendant
was the front seat passenger. The officers approached the
vehicle and, after observing an unknown object in the
defendant's hand and a knife in the center console,
ordered the driver out of the vehicle. When the driver got
out of the vehicle, a white rock-like substance fell to the
ground. Officer Longo recognized the object to be consistent
with "crack" cocaine, and the driver was placed
under arrest. At this point, the defendant was also ordered
out of the vehicle. After the defendant got out of the
vehicle, Officer Longo retrieved and secured the
driver then asked that the defendant, who was not yet under
arrest and who was free to leave the scene, be allowed to
drive the vehicle. Officer Longo determined, however, that
the defendant did not have a driver's license. The
officers then decided to impound the vehicle. In the course
of the resultant inventory search, Officer Longo found a
backpack containing a firearm. The backpack, which had the
name "Atreyo" written on it, also contained a pay
stub with the defendant's name.
hearing on the motion to suppress, the defendant introduced
in evidence a computer-aided dispatch (CAD) log of telephone
calls made to the Springfield police department reporting
criminal activity for three streets in the area around, and
including, Williams Street. The log included activity for a
six-month period dating back from the date of the incident
and reflected only telephone calls concerning criminal
activity; it did not include criminal activity that might
have been otherwise reported to the police or observed in
person by a police officer.
motion judge concluded that the police officers'
threshold inquiry of, and subsequent exit order to, the
driver and the defendant were proper. The defendant does not
argue otherwise. Rather, he focuses on the officers'
decision to impound and inventory the motor vehicle. Our
starting point, then, and our primary concern, is whether the
decision to impound -- to seize -- the vehicle was lawful.
See, e.g., Commonwealth v.
Oliveira, 474 Mass. 10, 13 (2016), citing
Commonwealth v. Eddington, 459
Mass. 102, 108 (2011). More specifically, the question is
whether impoundment "was reasonably necessary based on
the totality of the evidence." Oliveira,
supra at 14, citing Eddington,
supra at 108-110. In reviewing the judge's decision
on this point, "we accept [his] subsidiary findings of
fact absent clear error 'but conduct an independent
review of his ultimate findings and conclusions of
law'" (citation omitted). Eddington,
supra at 104, and cases cited.
Commonwealth argues that impoundment was reasonable because
it was 3 A.M. and the vehicle was parked in a "high
crime" area. Officer Longo testified that the crimes in
the area included drug and firearm offenses, gang activity,
domestic violence, and breaking and entering of both motor
vehicles and businesses. What matters for purposes of
considering the propriety of a motor vehicle impoundment,
however, is not the over-all frequency of crime in the
vicinity but the risk of vandalism, theft, or a break-in to
the motor vehicle. The number and frequency of other types of
crimes does not directly bear on the question whether
impoundment is reasonably necessary to safeguard the vehicle
or to protect the public. Here, the judge noted that the CAD
log contains only one entry indicating such a motor
in prior cases in which impoundment was deemed reasonable
because the vehicle was located in a "high crime"
area, other factors have been at play. In the
Eddington case, for example, where the motor vehicle
stop and subsequent impoundment took place in a "high
crime" neighborhood, the police dictated the location of
the stop (by signaling the driver to pull over).
Eddington, 459 Mass. at 104-105, 109. Here, by
contrast, the vehicle was already stopped, and legally
parked, before the police became involved, i.e., it was in a
location of the driver's choosing, rather than in a
location dictated by the police. Similarly, in
Commonwealth v. Ellerbe, 430 Mass.
769, 775 (2000), which also involved a neighborhood where
motor vehicle crimes were prevalent, the vehicle was parked
in a private lot, not on a public street. We noted that it
was "appropriate for the police to spare the private
parking lot owner the burden of dealing with the
vehicle's presence when the driver ha[d] been
arrested." Id. at 776.
circumstances were present here. The vehicle was legally
parked on a city street in a location of the driver's
choosing. The neighborhood was at least partially residential
and other vehicles were also lawfully parked on the same
street. As we cautioned in the Eddington case,
"to justify a decision to impound, the police need more
than the circumstance of a vehicle being stopped, and its
driver arrested, in a 'high crime' area."
Eddington, 459 Mass. at 106 n.10. Because the police
did not have more than that here, it was not reasonable for
them to impound the vehicle for the purpose of protecting it
from theft or vandalism.
judge based his decision that impoundment was improper solely
on his findings that the vehicle was not in danger of damage
or theft. As the Appeals Court noted, he did not address the
public safety rationale -- that is, whether there was any
concern that there might be dangerous items in the vehicle
from which the public needed protecting. See
Chester-Crowley, 86 Mass.App.Ct. at 808
n.6. The Commonwealth did not raise the public safety issue
at the hearing on the motion to suppress (and mentioned it
only in passing in its written opposition ...