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SJC-11972
SJC-11973

                 COMMONWEALTH vs. JEMAUL R. OLIVEIRA
                        (and a companion case1).



            Bristol.    January 8, 2016. - March 28, 2016.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.


Constitutional Law, Search and seizure. Search and Seizure,
     Motor vehicle, Inventory, Impoundment of vehicle.



     Complaints received and sworn to in the New Bedford
Division of the District Court Department on March 19, 2013.

     Pretrial motions to suppress evidence were heard by Kathryn
E. Hand, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Duffly, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by her to
the Appeals Court. The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.


     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.

    1
        Commonwealth vs. Mitchell T. Violet.
                                                                     2




     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


     2
       Jemaul Oliveira was also charged with unlawfully
possessing ammunition, in violation of G. L. c. 269, § 10 (h).
                                                                     3


judge.    Commonwealth v. Jones-Pannell, 472 Mass. 429, 431

(2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337

(2007), S.C., 450 Mass. 818 (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
                                                                     4


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


     3
       The record is not clear, but it appears that the arrest
was for the stolen cologne and athletic apparel.
     4
       During the inventory search, or shortly thereafter, a
third police officer inside the store conducted a patfrisk of
the defendants and discovered that Oliveira had a bullet in his
possession. The police officers who conducted the inventory
search did not learn of the discovery of this bullet until after
the firearm had been found in the inventory search.
     5
       The motion judge did not make a finding as to when the
store manager asked that the vehicle be towed, but the only
inference supported by the evidence is that it occurred after
the firearm had been discovered during the inventory search.
Officer Robert St. Denis testified that he was present when the
store manager asked that the vehicle be towed from the property
                                                                    5


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


and that this request occurred after another officer had told
the store manager that the two defendants were going to be
arrested for shoplifting and for possession of the ammunition.
Because Officer St. Denis also testified that he did not know
that a bullet had been found in the possession of one of the
defendants until after he had found the firearm during the
inventory search, his testimony supports a finding that this
conversation occurred after the firearm had been found. The
store manager testified that he asked that the vehicle be towed
from the parking lot after the police officer informed him that
a gun had been found in the vehicle, stating, "I do not want a
gun in the car in my parking lot that's going to be left
overnight.
                                                                    6


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 (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 (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; Ellerbe, supra at 773 n.8.     See generally

Commonwealth v. Brinson, 440 Mass. 609, 612 (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.
                                                                    7


    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; 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 (2007); to protect public safety where the

vehicle, as parked, creates a dangerous condition, see Brinson,

440 Mass. at 615-616; Commonwealth v. Henley, 63 Mass. App. Ct.

1, 5-6 (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

("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 (2014);

Commonwealth v. Vuthy Seng, 436 Mass. 537, 551-555 & n.16, cert.

denied, 537 U.S. 942 (2002), S.C., 445 Mass. 536 (2005) and 456
                                                                     8


Mass. 490 (2010).   See also Commonwealth v. Rostad, 410 Mass.

618, 620 (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 (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.   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 ("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
                                                                    9


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 created a risk to public

safety or left the vehicle vulnerable to vandalism or theft.

Id. at 613-614, citing People v. Krezen, 427 Mich. 681, 687–692

(1986) (potential police liability for failure to impound can be

considered in decision to seize).    See generally 3 W.R. LaFave,

Search and Seizure § 7.3(c), at 809-815 (5th ed. 2012).

    Where the vehicle reasonably could not have been left in

the place it was parked, we consider whether the owner of the

vehicle or a person clearly authorized by the owner to drive the

vehicle was present and lawfully able to drive the vehicle away,

that is, whether the vehicle was properly registered and the

person was licensed to drive and neither under arrest nor under

the influence of drugs or alcohol.   Where the owner or

authorized driver, for whatever reason, was unable to drive the

vehicle away, we consider whether the owner or authorized driver

offered the police a lawful and practical alternative to

impoundment of the vehicle.   See Ellerbe, 430 Mass. at 774 ("the

police had no practical available alternative to towing the

vehicle, and thus no discretion to exercise"); Commonwealth v.

Caceres, 413 Mass. 749, 751 (1992) ("We conclude that there was

no practical available alternative to the removal of the vehicle
                                                                   10


and to an inventory search of it.   The defendant did not suggest

or request any alternative to removal of the vehicle").

    We have no litmus test to gauge whether the alternative

offered by the owner or authorized driver was lawful and

practical and therefore an alternative the police reasonably

should have allowed instead of impoundment; the determination

depends on the totality of the circumstances.   We have, however,

made clear that the police have no obligation to locate or

telephone the registered owner to determine his or her wishes,

Eddington, 459 Mass. at 109, or to wait with the vehicle until a

licensed driver can be located, Ellerbe, 430 Mass. at 776.

    In this case, we agree with the judge that the decision of

the police to impound the vehicle was unreasonable.   The police

did not question that Violet was authorized by his girl friend

to drive the vehicle, and it was properly registered to her.

Under the circumstances, Violet's request that the police leave

the vehicle where he parked it until his girl friend could

retrieve it was lawful and practical.   Before the vehicle was

impounded, Violet had been arrested only for shoplifting, a

crime that was punishable by a fine of no more than $250, G. L.

c. 266, § 30A, so it was likely that he would be released on

bail after he was booked and could then notify his girl friend

to retrieve the vehicle or retrieve it himself.   Even if he were

not quickly released on bail, he was legally entitled to make a
                                                                    11


telephone call at the police station.    See G. L. c. 276, § 33A.

During this telephone call, he could notify his girl friend of

the need to pick up her vehicle or ask another person to notify

her.    Even if he were unable to reach her and was not released

on bail, there was no evidence that the vehicle was at

significant risk of being stolen or vandalized if it remained

overnight in the department store lot.   Nor, where it was parked

properly in the lot, did it pose any public safety risk or any

obstruction to other vehicles.   Nor was there evidence that the

lot was the private property of the department store; it was

described simply as a "public way" at the hearing.    Even if the

lot were owned by the department store, no weight can be given

to the request of the department store manager to tow the

vehicle from the lot, because there is no evidence to support a

finding that the request occurred before the officers began the

inventory search.   A seizure of a vehicle cannot be justified by

information learned from the seizure and subsequent search of

that vehicle.   See Commonwealth v. Thibeau, 384 Mass. 762, 763-

764 (1981).

       The Commonwealth contends that the police need only

consider the request for an alternate disposition of the vehicle

where the owner of the vehicle is present and proposes the

alternate disposition.    Such a per se rule would undermine the

nature of the impoundment decision, which requires the police to
                                                                 12


act reasonably and "necessitates a case-by-case analysis that

takes into account the numerous and varied situations in which

decisions to impound are made."    Eddington, 459 Mass. at 109

n.12.   Here, the police did not question Violet's assertion that

he was authorized by the owner of the vehicle to drive it, and

there were no circumstances that reasonably should have caused

them to question that assertion.   The fact that the owner of the

vehicle was not present when the driver was arrested is not

sufficient by itself to justify impoundment of the vehicle and

the consequent inventory search.   See id. at 111 n.14.

    Conclusion.   Because we conclude that the impoundment was

unreasonable and, thus, unconstitutional, we affirm the order of

the motion judge suppressing the fruits of the inventory search

of the motor vehicle.

                                    So ordered.
