Date: 10-15-2016

Case Style:

Case Number: 15-P-1015

Judge: Peter W. Agnes, Jr

Court: Massachusetts Appeals Court

Plaintiff's Attorney:

Michael A. Lafleur, Assistant District Attorney

Defendant's Attorney:

John M. Corridan

Description: The question presented in this case is whether
it was reasonable for police to seize and inventory the contents
of a backpack found in the back seat of a vehicle operated by
the defendant, Jahliel M. Nicoleau, upon his arrest. The
vehicle was parked in front of his home where he lived with his
grandmother, who was present at the scene, and to whom the
police gave other personal belongings of the defendant. Based
on the reasoning in Commonwealth v. Abdallah, 475 Mass. 47, 52
53 (2016), we conclude that although the police had a right to
impound and tow the unregistered, uninsured vehicle that the
defendant was operating, there was a practical, available
alternative to the seizure of the defendant's backpack --
namely, turning it over to the defendant's grandmother -- which
would have precluded the police from seizing it and subjecting
it to an inventory search. Accordingly, we affirm the order
allowing the defendant's motion to suppress a knife that the
police found inside the backpack.
Background. On review of "a ruling on a motion to
suppress, we accept the judge's subsidiary findings of fact
absent clear error 'but conduct an independent review of [her]
ultimate findings and conclusions of law.'" Commonwealth v.
Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v.
Jimenez, 438 Mass. 213, 218 (2002). We recite the facts as
found by the motion judge, supplemented with uncontested
testimony from the hearing on the motion to suppress.
On September 4, 2014, Officer Brian Tracey and his partner
were patrolling in Boston and observed a car, driven by the



3
defendant, with one headlight out. The vehicle's registration
and license plates were invalid. The officers followed the car
and attempted to stop it, but the defendant continued to drive
until he parked the car outside his home, where he lived with
his grandmother. Other officers arrived, and the grandmother
emerged from the home to speak with the police. The defendant
was placed under arrest for failure to stop and for motor
vehicle violations. Because the vehicle was unregistered and
uninsured, and the defendant was unable to produce a driver's
license, the officers arranged to have it impounded.
Having made the decision to impound the vehicle, but prior
to the car being towed, officers searched the vehicle, removing
a music player from the backseat and giving it to the
grandmother. They handed the defendant's keys to the
grandmother as well.1 The police also removed a backpack from
the back seat, but instead of handing it to the grandmother,
they opened it and located a knife inside. The defendant was
additionally charged with unlawfully carrying a dangerous weapon
in violation of G. L. c. 269, § 10(b).
1 It appears that the grandmother was willing to and interested in taking possession of the defendant's other belongings. Although the defendant specifically asked the police whether his grandmother could take the stereo, he did not object to her taking any other items.




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The defendant moved to suppress the knife, and Officer
Tracey testified at the motion hearing. Although Tracey
admitted that the officers removed a music player from the car,
the inventory search form that was completed indicated that
nothing had been removed from the vehicle. The motion judge
ruled that the stop, impoundment, and inventory search were
lawful. However, she concluded that the inventory search should
not have extended to the interior of the backpack, because the
grandmother was present and willing to take possession of the
defendant's property, and in fact did so in the case of the
music player. Therefore, the judge reasoned, it appeared that
the search was for evidence of another crime, and the police did
not follow their own inventory policy.
Discussion. An inventory search is lawful under the United
States Constitution and art. 14 of the Massachusetts
Constitution only if (1) the impoundment of the vehicle was
reasonable, and (2) the search of the vehicle following
impoundment was "conducted in accord with standard police
written procedures." Commonwealth v. Oliveira, 474 Mass. 10, 13
(2016). See Commonwealth v. Ellerbe, 430 Mass. 769, 776 (2000);
Commonwealth v. Brinson, 440 Mass. 609, 612 (2003).
Impoundment of a vehicle on a public way is justified by at
least four distinct needs: protection of the owner's property
from vandalism or theft while the vehicle remains in police



5
custody, see Ellerbe, supra at 775-776; where a vehicle, if left
unattended, poses a public safety risk, see Brinson, supra;
where the vehicle stopped did not possess valid registration
plates, see Commonwealth v. Horton, 63 Mass. App. Ct. 571, 573,
577 (2005); and protection of police and the public from
potentially dangerous items in the vehicle, see United States v.
Coccia, 446 F.3d 233, 240 (1st Cir. 2006), cert. denied, 549
U.S. 1149 (2007). See Oliveira, supra at 13; South Dakota v.
Opperman, 428 U.S. 364, 369 (1976). "The propriety of the
impoundment of the vehicle is a threshold issue in determining
the lawfulness of [an] inventory search." Commonwealth v.
Eddington, 459 Mass. 102, 108 (2011), quoting from Commonwealth
v. Garcia, 409 Mass. 675, 678 (1991).
In this case, the defendant does not argue that the police
lacked authority to seize and impound the automobile. Indeed,
impoundment for noninvestigatory purposes is justified "if
supported by public safety concerns or by the danger of theft or
vandalism [if] left unattended." Commonwealth v. Daley, 423
Mass. 747, 750 (1996). See Commonwealth v. Caceres, 413 Mass.
749, 751 (1992) (where no person is authorized to operate motor
vehicle, police had no alternative but to seize vehicle and
conduct inventory search). Here, the defendant could not
produce a driver's license, and the vehicle was unregistered and



6
uninsured. The vehicle could not be left on a public roadway.
See Commonwealth v. Figueroa, 412 Mass. 745, 748 n.4 (1992).
Nevertheless, "[i]mpoundment of a car and an inventory
search of a car are not synonymous, and the constitutional
analysis is not unilateral." Commonwealth v. Silva, 61 Mass.
App. Ct. 28, 33 (2004). The lawfulness of an inventory search
subsequent to impoundment implicates distinct standards from
those governing the lawfulness of impoundment itself. See
Commonwealth v. Goncalves, 62 Mass. App. Ct. 153, 156 (2004).
The sole issue in our case, then, is whether the scope of the
lawful inventory search properly included the backpack's
interior. We begin with a review of the purpose underlying the
inventory search exception to the warrant requirement.
An inventory search is justified exclusively by a necessity
that is independent of any suspicion of criminal activity. It
may be considered necessary "for the purpose of protecting the
car or its contents, for the purpose of protecting the police
against unfounded charges of misappropriation of such property,
for the purpose of protecting the public against the possibility
that the car might contain weapons or other dangerous
instrumentalities which might fall into the hands of vandals, or
for a combination of such reasons." Commonwealth v. Matchett,
386 Mass. 492, 510 (1982). The target of the inventory search
is the contents of the vehicle at the time it is to be towed.



7
See Commonwealth v. Alvarado, 420 Mass. 542, 553 (1995)
("Inventory searches are intended to be noninvestigatory and are
for the purpose of protecting property which may be within the
vehicle"). Indeed, there is no need to safeguard property or
protect the police against false claims of misappropriation
where the police will not take possession of the property in
question. See Commonwealth v. Vanya V., 75 Mass. App. Ct. 370,
379 (2009), quoting from Commonwealth v. Muckle, 61 Mass. App.
Ct. 678, 682-683 (2004) ("safeguarding the [item taken by law
enforcement]" is subject to inventory search as opposed to
gathering evidence or investigation). See also Commonwealth v.
Tisserand, 5 Mass. App. Ct. 383, 386 (1977) (inventory of "the
contents of a car about to be towed or impounded is a reasonable
procedure").
This case requires us to determine whether the police have
discretion to decide which items of personal property contained
in the vehicle of an arrested party will remain with the vehicle
when it is towed, and which will be turned over to an
appropriate third party who is present, able, and willing to
take possession of the property. This case is unlike the more
common scenario in which the driver is under arrest and no one
is available to take possession of any of the vehicle's
contents, which must, out of necessity, be inventoried before
the vehicle is impounded. See, e.g., Commonwealth v. Ford, 394



8
Mass. 421 (1985) (lone driver under arrest); Commonwealth v.
Bishop, 402 Mass. 449 (1988) (lone driver arrested); Garcia, 409
Mass. at 675 (passenger and driver both under arrest); Alvarado,
supra (both occupants of vehicle placed under arrest prior to
inventory search); Muckle, supra (driver and passenger both
under arrest). The seizure of an item that is not itself
suspected to be dangerous, in circumstances where there is a
responsible third party available to take possession of it, is
inconsistent with the purposes underlying an inventory search.
See Opperman, 428 U.S. at 369; Garcia, supra at 682. In a case
such as this, there is simply no need to seize or safeguard
items that are not instrumentalities of a crime or contraband,
or where there is no suspicion that they may be a danger to the
public.
The Supreme Judicial Court's recent decision in Abdallah,
475 Mass. at 51, reinforces the point that an inventory search
is valid only when it is necessary and carried out in compliance
with written police procedures. Although it did not involve the
contents of a vehicle, Abdallah concerned the propriety of an
inventory search of the defendant's backpack, which was seized
upon his arrest and searched during the subsequent booking
process. The court rested its rationale on the fact that it was
not necessary to conduct an inventory search of the backpack's
interior because there was a reasonable practical alternative to



9
seizing the backpack.2 See id. at 51-53. Abdallah, then,
requires an inquiry into whether the officers in this case had a
reasonable practical alternative to seizing the backpack and
conducting an inventory search of its interior. See id. at 52
53. "This inquiry is fact driven, with the overriding concern
being the guiding touchstone of [r]easonableness." Id. at 52,
quoting from Eddington, 459 Mass. at 108. For substantially the
same reasons as the court in Abdallah, we conclude that the
officers did not take advantage of a reasonable, practical
alternative.
In Abdallah, the defendant was arrested at his hotel room,
and the officers informed him that he would be able to pick up
his belongings, which had been inside the room, from the hotel's
front desk after he was released. See id. at 49. When Abdallah
asked the officers to secure certain more valuable items (his
computer and video game system), they did so. See ibid.
However, the police chose one of Abdallah's belongings, a
2 Applied in the context of motor vehicles, Abdallah stands for the proposition that the reasonable inquiry must be undertaken at two distinct points in time: first, in deciding whether the car must be impounded; and second, in deciding whether certain property must, out of necessity, be inventoried prior to the vehicle being towed. Abdallah instructs that after the initial determination is made, the defendant should be asked his preference as to the disposition of his property. If there is a practical and available alternative that the defendant expressly or impliedly approves, the police must choose it. Otherwise, they may proceed with an inventory search. See id. at 52-53.



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backpack, which had been on his person, to take into custody
along with the defendant as he was booked at the police station.
As part of standard booking procedures, the bag's contents were
inventoried, and discovered to contain controlled substances and
a great deal of cash. Ibid.
The Supreme Judicial Court affirmed the allowance of a
motion to suppress the contents of the backpack, first
concluding that there was no reason to believe that the bag
posed any danger to public safety. Id. at 52. Then, the court
analyzed whether it was reasonable for the police to seize the
backpack, concluding that in the totality of the circumstances,
where the officers had arranged with the hotel clerk to
safeguard certain of Abdallah's belongings, as well as his
vehicle, it was unreasonable for them to "single out" the
backpack and subject it alone to an inventory search at the
station. Id. at 53.
In the present case, as in Abdallah, there was no evidence
prior to the search that the defendant's backpack or its
contents presented a danger to anyone or contained evidence of a
crime. A third party, the defendant's grandmother, was present
and willing to take possession of the defendant's belongings.
The police did, in fact, arrange for her to do so in the case of
the music player. Having made the decision to give the music
player to the defendant's grandmother, the police did not have



11
the discretion to decide to seize and inventory the defendant's
backpack, which also could have been turned over to the
grandmother.3

Outcome:

Therefore, we affirm the motion judge's allowance of the defendant's motion to suppress.4

Plaintiff's Experts:

Defendant's Experts:

Comments:

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