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13-P-773                                             Appeals Court

           COMMONWEALTH     vs.   ATREYO CROWLEY-CHESTER.


                            No. 13-P-773.

       Hampden.     September 8, 2014. - January 5, 2015.

             Present:     Berry, Kafker, & Hanlon, JJ.


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



     Complaint 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 charged 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 (FID) card, in violation of G. L. c. 269,

§ 10(h).     After an evidentiary hearing, a District Court judge

allowed the defendant's motion to suppress the loaded firearm

recovered by police during an inventory search following the

impoundment of the Honda automobile in which the defendant had

been a passenger.1

     Suppression 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 reasonably

undertaken based on the specific facts and circumstances

presented.    For the reasons that follow, we conclude that the

impoundment, towing, and inventory of the automobile were

reasonable, constitutionally appropriate, and compliant with the

written police impoundment policy.     Accordingly, we 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,

Springfield police Officers Longo and 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

its lights off.   Given the late hour, the running engine, and an

area known to the officers to have a high crime rate, the police

officers shined the police cruiser's spotlight toward the inside

of the Honda and saw that it contained two occupants.     As the

officers illuminated the vehicle's interior, the defendant

passenger slouched down in his seat.

    The officers got out of their cruiser and approached the

Honda, shining flashlights into the parked car as they

approached.   Officer Longo saw the defendant quickly move his

left hand between the center console and his left leg in an

apparent attempt to conceal a dark-colored object in his hand.

(Later, it was established that the dark object in the

defendant's hand was a glove.)

    Officer Canini ordered both the driver and the defendant to

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

the show-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 Canini
                                                                    4


ordered 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.   Officer Canini told him to remove his hand from the

pocket.   As the driver did that, a white, rock-like substance

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

recognized the substance to be "consistent with crack cocaine."

The driver was placed under arrest.    The officers seized the

knife.

     Following his arrest, the 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, the officers decided the car should be towed from the

scene.    Pursuant 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. 449, 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 department. The purposes 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
              3
sunglasses.       In the trunk, the police found a backpack with the

defendant's name, "Atreyo," inscribed on it.     Under the written

police inventory policy, the backpack was opened by the police,

and within the backpack were found a loaded handgun, another


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

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

     "4. To protect departmental personnel and the public
     against injury from dangerous substances or items that may
     be in the vehicle.
                                 "PROCEDURE

          "Whenever 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 vehicle
     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
     submitted to the proper bureau."
     3
       It is logical to extrapolate that the 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 appeal, the Commonwealth's principal points in

opposition to the suppression 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 deferred to, the limited analysis of the police action

entries in a six-month computerized dispatch log (CAD).4     (The

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 entries in the CAD -- which included a series of calls

to the police station, with follow-ups of police dispatches and

police reports involving not only serious criminal activities

generally, but also, in particular, involving criminal and

suspicious activities with 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 general
                                                                   7


    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)

(applying reasonableness 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
record of criminal activities in the area where the Honda was
parked. A more accurate summary of the entries taken from the
CAD appears infra.
                                                                    8


63 Mass. App. Ct. 632, 634 (2005) (same).   As these cases

establish, it is the reasonableness of the police action which

is central.   Contrary to the suppression ordered in this case,

necessity is not the appropriate governing standard for

evaluating the propriety of an impoundment and inventory.

    With respect to the reasonableness of a vehicle

impoundment, there are two rationales that may justify an

impoundment and subsequent inventory.   One rationale for

impoundment and inventory of a motor vehicle involves public

safety.   The second rationale for impoundment and inventory

involves the risk of property damage to a vehicle left parked on

a street and possible claims 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).   Both of these

justifications apply here.

    First, we turn to the public safety rationale.6   The factual

complex including the police sighting of the Honda parked with


    6
       From all that appears of record, the judge did not
consider the public safety issue, but instead merely focused on
potential property damage claims. "I find that there was
sufficient evidence to conclude that the Honda Accord could have
                                                                   9


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 item (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

Honda away, yielded 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 were 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. In
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 was
                                                                  10


    The inventory of the Honda included opening the backpack

found in its trunk.   This action was compliant with the

Springfield police inventory policy which encompasses "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 "certainly 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 Street in this high crime area.

The 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. In 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 of 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 an automobile, declining to
follow and distinguishing Brinson. See Eddington, supra at 109-
111.
                                                                     11


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

month period of time, there were documented police reports of

such offenses as vandalism, burglary, and suspicious vehicles

moving about.    Indeed, a close examination of the CAD (contrary

to the expert's characterization of a "sprinkling" of serious

offenses9) reflects an area beset with burglaries, theft, and

motor vehicle offenses.       Indeed, in just the six-month period

covered by the CAD, the police responses and reports involve

general criminal offenses, including 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, in particular, as to motor vehicles,

the CAD reflects two police responses involving the breaking and

entering of motor vehicles, two reports of suspicious 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 addition to a fuller review of the actual entries 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 testimony 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 the 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, under the standard set forth in Commonwealth v.

Ellerbe, 430 Mass. at 776, there were reasonable police concerns

about potential theft or vandalism to the Honda if left

unattended.    See Brinson, supra at 617.   Based on the foregoing,

we conclude that both the public safety and vandalism/property

damage rationales supported the impoundment of the Honda and its

inventory search pursuant to the written Springfield police

policy.   Accordingly, the order allowing the motion to suppress

is reversed.    A new order shall enter denying the motion.

                                     So ordered.
