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13

- P

- 773 Appeals Court

COMMONWEALTH vs . ATREYO CROWLEY

- CHESTER.

No. 13

- P

- 773.
Hampden. September 8, 2014.

- January 5 , 201 5

.

Present: Berry, Kafker, & Hanlon, JJ.

Firearms

. Evidence , Firearm. Practice, Criminal , Motion to suppress. Search and Seizure , Inventory, Impoundment of vehicle. Constitutional Law , Search and seiz ure, Impoundment order. Due Process of Law , Seizure of motor vehicle.

C omplaint received and sworn to in the Springfield Division of the District Court Department on March 15, 2011.
A pretrial motion to suppress evidence was heard by Robert A. Gordon , J.
An application for leave to prosecute an interlocutory appeal was allowed by Margot Botsford , J., in the Supreme Judicial Court for the county of Suffolk, and the case was reported by her to the Appeals Court.

Jane Davidson Montori , Assistant District Attorney, for the Commonwealth. Patrick A. Michaud for the defendant

.2

BERRY, J. The defendant was charge d with carrying a

firearm without a license, in violation of G. L. c. 269,

§ 10( a ), and possession of a firearm or ammunition wi thout a

firearm identification ( FID ) card, in violation of G. L. c. 269,

§ 10( h ). Af ter an evidentiary hearing, a District Court judge
allowed the defendant's motion to suppress the loaded firearm

r ecovered by police during an inventory search following t he
impoundment of the Honda automobile i n which the defendant had

been a passenger
. 1

S uppression was based on the judge's finding that the
impoundment and inventory of the Honda were not necessary

.
However, the governing standard is not one of necessity ; rather

the standard is whether the police actions in impounding and
conducting an inventory search of a motor vehicle are reasonabl y

undertaken based on the specific facts and circumstances

present ed. For the reasons that follow, we conclude that the
imp oundment, towing , and inventory of the automobile were
reasonable, constitutionally appropriate , and compliant with the

written police impoundment polic y . Accordingly , w e reverse the

order allowing the motion to suppress

.
1

. Background

. We summarize the findings of the motion
judge, supplemented with undisputed facts adduced at the

1 A single justice of the Supreme Judicial Court granted the Commonwealth leave to pursue an interlocutory appeal.3

suppression hearing. Commonwealth v. Isaiah I ., 448 Mass. 334,

337 (2007) , S

. C ., 450 Mass. 818 (2008)

. On March 15, 2011,

Sp ringfield p olice Officers Longo an d Canini were on routine
patrol on William Street in Springfield. At approximately 3:00

A

. M ., the officers observed a dark

- colored Honda automobile
legally parked next to a vacant lot with its engine running and

i t s lights off. G iven the late hour, the r unning engine, and an
area known to the officers to have a high crime rate , t he police

officers sh i ne d the police cruiser ' s spotlight toward the in s i de

of the Honda and saw t hat it contained two occupants. As the

officers illuminated the vehicle's interior , the defendant
passenger slouched down in his seat.

T he officers got out of the ir cruiser and approached the

Honda, shin ing flashlights in to the park ed car as they
approached. Officer Longo saw the defendant quickly move his

left hand between th e center console and his left leg in an

apparent attempt to conceal a dark

- colored object in his ha n d

. ( Later, it was established that t he dark object in the
defendant's hand was a glove

. )

O fficer Canini ordered both the driver and the defendant to

sho w their hands and remain still. The two did not comply with

th e s how

- hands command. As Officer Canini continued to approach

the driver's side of the Honda , he saw in plain view a silver
folding

- blade knife in the center cup holder. Officer Canini4

ord e re d the driver and the defendant to step out of the vehicle.

As the driver did so, he put his right hand into his jacket
pocket. Office r Canini t o l d him to remove his hand from t h e
pocket . A s the driver did that , a white, rock

- like substance

fell to the ground. Based on his experience, Officer Canini

r ecognized the substance to be "consistent with crack cocaine. "

The driver was placed under arrest

. The officers seized the

knife.
Following his arrest, t he driver requested that the

officers allow the defendant to drive the Honda from the site

.
However, a computerized check revealed that the defendant did

not have a driver's license. Given the foregoing state of

affairs, t he officers decided the car should be towed from the

scene. P ursuant to the Springfield police department ' s written
policy concerning the impoundment and towing of a motor vehicle , an inventory search of the Honda and its contents was conducted

. See generally Commonwealth v. Bishop , 402 Mass. 44 9, 451 (1988 )

. 2

2 The written Springfield police towing and impoundment policy provides as follows.

"POLICY

"It shall be the policy of this department to inventory the contents of all motor vehicles that are towed by his d epartment. The purpose s of this inventory are to:

" 1. Determine whether there is any personal property in the vehicle that needs to be protected from loss or damage.5

On the floor behind the passenger's seat , Officer Longo
found gloves , a ski mask, a hooded sweatshirt, and a pair of
sunglasses

. 3 I n the trunk , the police found a backpack with the

defendant's name , "Atreyo , " inscribed on it. Under the written
police inventory policy, t he backpack was opened by the police , and within the backpack were found a loaded hand gun, a nother

" 2. To protect the department and its personnel from claims of a failure to protect such property.

" 3. To prot ect the department and its personnel from false claims of loss of property that was never in the vehicle.

" 4. To protect department al personnel and the public against injury from dangerous subs tances or items that may be in the vehicle. "PROCEDURE

"Whene ver a motor vehicle is ordered towed by a department member, that member shall assume the responsibility for inventorying and safeguarding the contents of the vehicle. The scope of this inventory shall include any locked or closed containers within the ve hicle that can be opened without damage as well as any locked portions of the vehicle itself that can be accessed without causing damage (e.g. glovebox, trunk, suitcases, boxes etc.) The department member ordering the tow shall list all items found within the vehicle in the remarks section of the tow sheet. Any monies or articles of value that may be subject to loss or damage shall be taken and submitted to the property division for safekeeping. A notation as to which items were so removed as well as the property tag numbers shall be made in the remarks section of the tow sheet. Anything believed to be dangerous, contraband , or evidence of a crime shall be seized and tagged and a report

s ubmitted to the proper bureau."

3 It is logical to extrapolate that t he instrumentalities found in the backseat were potential burglarious tools. However, because these items were found during the inventory search, we do not add them to the calculus concerning the original decision to impound the Honda.6

hooded sweatshirt, gloves , and a pay stub with the defendant's

name on it.

On appe al, the Commonwealth's principal points in

oppos ition to the suppress ion order are that (1) the motion
judge applied the incorrect standard of legal necessity in
suppressing the firearm found following the Honda's impoundment

and the inventory search , and (2) the judge incorrectly relied

on , and deferre d to, the limited analysis of the police action

entries in a six

- month computerized dispatch log (CAD)

. 4 (T he

CAD document itself was in evidence

. ) The motion judge' s
reliance, the Commonwealth submits , was misplaced because the

defense analyst 's summary of the CAD was substantially
incomplete and did not fully account for a number of crime

related entr ies in the CAD

-- which included a series of calls
to the police station, with follow

- up s of police dispatches and
police reports involving not only seriou s criminal activities
generally , but also, in particular , involving criminal and
suspicious activities w i th motor vehicles. 5

4 The computerized list is also referred to in the record as a police call activity report.

5 The defense analyst presented the following limited and inaccurate summary of the CAD exhibit

.

"The bulk of what I saw from the incidents log that I was provided and that's been submitted to you were these calls for well

- being checks, false alarms, domestic disturbances, traffic

- related offenses, just general7

2. Propriety of the impoundment and inventory search

. "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. Eddington , 459 Mass. 102,

108 (2011) ( Eddington ). " [ T ] he propriety of the impoundment of
the vehicle is a threshold issue in determining the lawfulness
of the inventory search. " Commonwealth v. Garcia , 409 Mass.

675, 678 (1991). With respect to the impoundment and inventory

search, under a written police policy, "an officer ' s judgment in
the matter is to be tested by what reasonably appeared to him at

the time " ( emphasis added )

. Eddington , supra at 110

- 111 , quoting from Commonwealth v. Sanchez , 40 Mass. App. Ct. 411, 415

(1996) . " The decisions demonstrate that our determinations are
fact driven, with the overriding concern being the guiding

touchstone of ' [r]easonableness. ' " Eddington , supra at 108 , quoting from Commonwealth v. Ellerbe , 430 Mass. 769, 776 (2000)
(appl ying reasonablene ss standard). Commonwealth v. Bienvenu ,

callouts with a

-- there was a sprinkling of what could be considered more serious offenses

. My memory has it about maybe eight or so, a report of a robbery that type of thing."

But this " sprinkling " description diminishes what the CAD document actually states and omits a lot of the persistent

r ecord of criminal activities in the area where the Honda was parked. A more accurate summary of the entries tak en from the CAD appears infra

.8

63 Mass. App. Ct. 632, 634 (2005) (same). As the se case s

establish , it is the reasonableness of the police action which

is central . C ontrary to the suppression ordered in this case ,

n ecessity is not the appropriate governing standard for
evaluating the propriety of an impoundment and inventory

. With respect to the reasonableness of a vehicle
impoundment , t here are two rationales that may justify a n
impoundment and subsequent inventory

. One rationale for
impoundment and inventory of a motor vehicle involves public
safety . T he second rationale for impoundment and inventory

involves the risk of property damage to a vehicle left parked on
a street and po ssible claim s against the police for potential
damage to it if left unattended

. "The impoundment of a vehicle
for noninvestigatory reasons is generally justified if supported
by public safety concerns or by the danger of theft or vandalism

to a vehicle left unattended" (emphasis added)

. Commonwealth v.

Brinson , 440 Mass. 609, 612 (2003) ( Brinson ) , quoting from

Commonwealth v. Daley , 423 Mass. 747, 750 (1996)

. B oth of these
justifications apply here.

F irst, we turn to the public safety rationale. 6 The factual
complex including the police sigh t ing of th e Honda parked with

6 From all that appears o f record, the judge did not consider the public safety issue, but instead merely focused on potential property damage claims. " I find that there was suffici ent evidence to conclude that the Honda Accord could have9

the engine running in a high crime area ; the defendant ' s
slouching down when the cruiser spotlight was directed at the

Honda ; the defendant's additional furtive movements in trying to

hide a dark i t em ( a glove) behind the center console ; the
occupants' refusal to comply with the police order to show

hands ; the plain sighting of the knife in the center cup holder ;

the dropping of crack cocaine from the driver's pocket ; and the
driver's request to have the unlicensed defendant drive the

Ho nda away , y ielded a reasonable basis for the police to be

concerned , as a matter of public safety , that weapons and drugs

( in addition to the discovered knife ) might be contained within

the Honda

. See Commonwealth v. Dunn , 34 Mass. App. Ct. 702 ,
703

- 704 (1993) (impoundment justifiable if supported by reason
of public safety) ; Commonwealth v. Allen , 76 Mass. App. Ct. 21,

24 (2009). 7

been parked on William [] Street without a danger of damage or theft that would merit a tow pursuant to the Tow Policy. "

7 The defendant argues that the Brinson case , in which an impoundment and inventory of a car w ere found improper , is controlling so that here the impoundment and inventory were also not justified. But the Brinson case is distinguishable

. Brinson involved a lawfully parked car in a private lot that presented "no public safety risk , and

. . . no evidence of threat of vandalism to justify impoundment." Brinson , supra at 614. We sketch certain other distinguishing details. I n Brinson , the defendant was not arrested within or near the subject car . Indeed, the subject car was left parked in the private lot, and the defendant was driven approximately a mile away in a different car where the defendant engaged in a drug transaction and was arrested

. In short , in Brinson , there was10

The inventory of the Honda included opening the backpack

found in its trunk . This action was compli a nt with the
Springfield police inventory policy which encompass es "locked or

closed containers within the vehicle

. " See note 2 , supra
. The

" protection of the public from the dangerous items which might

be in the vehicle " includes the interior of a locked trunk that

is " certain ly not invulnerable to vandalism or theft

. "

Commonwealth v. Garcia , 409 Mass. at 682.

We next turn to the second rationale for impoundment and
inventory which pertains to the threat of potential vandalism or
damage to a vehicle , such as this Honda , were it to be left

vacant and parked on William S treet in th i s high crime area

.

T he CAD record , which was admitted in evidence as a documentary

little nexus between the arrest and the car left in the private lot

. This case is markedly different , including but not limited to , the following facts: the unusual /suspicious actions of the two occupants within the Honda ( the crouching down in the seat ; the furtive movement toward the console by the defendant passenger, and the occupants' unwillingness to comply with a police order to show hands ) ; the plain view presence of the knife in the console cup ; and the crack cocaine falling from the driver ' s pocket

. Beyond these , the record in Brinson did not suggest a risk of vandalism to the car . I n contrast, at the suppression hearing here both the police testimony and the CAD provide evidence of potential risks to the Honda in a high crime area with incidents o f car theft, burglary, other suspicious vehicles , and various crimes. So compiled , the record backdrop in this case is closer to the Eddington case, which upheld the impoundment and inventorying of a n automobile , declining to follow and distinguishing Brinson

. See Eddington , supra at 10 9

- 111.11

exhibit at the suppression hearing , 8 shows that, in just one six

month period of tim e , t here were documented police reports of

such offenses as vandalism , burglary , and suspicious vehicles
moving about

. I ndeed , a close examination of the CAD (contrary
to the expert ' s characterization of a " sprinkling" of serious

offenses 9 ) reflects an area beset with burglaries, theft , and

motor vehicle offense s . Indeed, in just the six

- month period
covered by the CAD , the police responses and reports involve
general criminal offenses, includ ing but not limited to seven
incidents involving the breaking and entering of a residence ;
four reports of larcenies ; one armed robbery ; and one incident

of vandalism

. Further and , i n particular, as to motor vehicles,

the CAD re flect s two police responses involving the breaking and
entering of motor vehicles, two reports of suspic ious motor
vehicles, and eight incidents called into the police station

which are referred therein generically as traffic control , but
which required, and received, a police response to the subject

area
.

In addit ion to a fuller review of the actual entrie s in the

CAD criminal activity report and police responses thereto , to be

8 "We have consistently held that lower court findings based on documentary evidence available to an appellate court are not entitled to deference." Commonwealth v. Novo , 442 Mass. 262, 266 (2004).

9 See note 5, supra
.12

factored is Officer Longo's testi mony at the suppression hearing

that , at the time of the Honda 's impoundment , he was personally

aware of a number of crimes that had taken place in t he area,
including car break

- ins and stolen motor vehicles

-- happenings
which the officer cited as providing a reasonable basis for
impounding the Honda, rather than leaving it abandoned on

William Street

. Thus, u nder the s tandard set forth in Commonwealth v.

El l er b e , 430 Mass. at 776 , there were reasonable police concerns
about potential theft or vandalism to the Honda if left

unattended . See Bri n son , supra at 617. Based on the foregoing ,
we conclude that both the public safety and vandalism/property
damage rationales support ed the impoundment of the Honda and its
inventory search pursuant to the written Springfield police
policy. Accordingly, t he order allowing the motion to suppress
is reversed. A new order shall enter denying th e motion

.

S o ordered

.