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SJC-12128

            COMMONWEALTH   vs.   ATREYO CROWLEY-CHESTER.


                           March 9, 2017.


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


     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 Commonwealth v. Crowley-Chester, 86
Mass. App. Ct. 804 (2015). The case is now before this court on
further appellate review.1 Because we conclude that the motion
judge properly allowed the motion to suppress, we affirm.

     1
       The defendant initially filed his application for further
appellate review in January, 2015. In the application he
argued, among other things, that the Appeals Court had engaged
in improper appellate fact finding. In light of our decisions
in Commonwealth v. Jones-Pannell, 472 Mass. 429 (2015), and
Commonwealth v. Douglas, 472 Mass. 439 (2015), which address
that issue and which we decided while the defendant's
application for further review was pending, we denied the
application without prejudice and remanded the case to the
Appeals Court for reconsideration. The Appeals Court
reconsidered the appeal and reached the same result as it had
                                                                  2



     Background. At 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.2 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 knife.3

     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.

     At the 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


previously, reversing the order allowing the motion to suppress.
The defendant then sought further appellate review again, and we
allowed his application.
    2
       There is no indication in the record as to how long the
vehicle had been parked in that location or how long the engine
had been running. Officer Longo testified that it was cold and
that he knew that the engine was running because he could see
exhaust from the vehicle.
    3
       The knife recovered from the vehicle was a Swiss Army
knife, presumably something that the officers were able to
ascertain as soon as they retrieved the knife, if not before.
                                                                   3


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.

     Discussion. The 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 108-110.4 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.

     The Commonwealth argues that impoundment was reasonable
because it was 3 A.M. and the vehicle was parked in a "high
crime" area.5 Officer Longo testified that the crimes in the

     4
       "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." Commonwealth
v. Oliveira, 474 Mass. 10, 14 (2016), and cases cited. See
Commonwealth v. Ortiz, 88 Mass. App. Ct. 573, 575-576 (2015)
(discussing difference between investigatory search and
inventory search). The defendant in this case made no claim,
and the judge did not find, that the police impounded the motor
vehicle as a pretext for the true purpose of conducting an
investigatory search.
     5
       In his decision, the judge stated that the Commonwealth
failed to meet its burden to establish that it was "necessary"
to impound the vehicle. The proper standard is not whether an
impoundment was absolutely necessary but whether it was
"reasonably necessary," as set forth in Oliveira, 474 Mass. at
14. Although the judge used only the word "necessary" in his
                                                                   4


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 vehicle-related crime.6

     Furthermore, 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.



written decision, he used the word "reasonable" throughout the
hearing when addressing the propriety of the officers' decision
to approach the vehicle and to issue the exit order. It is
evident, and we are satisfied, that he knew that the concerns
here relate to the reasonableness of the officers' actions, and
that this is what he had in mind when he reached his decision to
allow the motion to suppress.
    6
       Although a police officer trying to determine whether to
impound a motor vehicle cannot be expected to know the exact
number or nature of all vehicle-related crimes that have
occurred in a particular neighborhood, an officer who believes
an area to be "high crime" should have at least some general
knowledge on this point sufficient to inform whether impoundment
is reasonably necessary to safeguard the vehicle or protect the
public.
                                                                   5


     No such 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.

     The 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 to
the motion in the trial court) and focused instead on the "high
crime" issue. The judge's similar focus is thus not surprising.

     In any event, to the extent that the Commonwealth argues in
this court that impoundment was warranted to protect the public
because the officers recovered a knife from the vehicle, we find
the argument unavailing. The Commonwealth does not argue that
the mere presence of the Swiss Army knife in the vehicle by
itself created a threat to public safety. Indeed, because the
officers had already retrieved and secured the knife prior to
making the decision to impound, such an argument would not be
plausible. Although public safety is unquestionably a
legitimate concern, it is not enough to say, as the Commonwealth
does, that because a Swiss Army knife was found in the vehicle,
the vehicle "could have" contained other weapons. The
Commonwealth has not developed the public safety argument
further, and we do not find that impoundment on that basis would
have been reasonable.7

                                   Order allowing motion to
                                     suppress affirmed.


     7
       Because we conclude that the police should not have
impounded the vehicle, we need not consider whether the
resulting inventory search was properly conducted.
                                                                  6



     Patrick A. Michaud for the defendant.
     Cynthia Cullen Payne, Assistant District Attorney, for the
Commonwealth.
