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SJC-11980

                    COMMONWEALTH   vs.   JAMIL J. CAMPBELL.



         Suffolk.       February 10, 2016. - September 30, 2016.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk,
                                 JJ.1


Motor Vehicle, Operation, Permission to operate, Unauthorized
     use. Constitutional Law, Search and seizure, Probable
     cause. Search and Seizure, Probable cause, Inevitable
     discovery, Motor vehicle. Probable Cause. Practice,
     Criminal, Motion to suppress.



     Complaint received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on August 19, 2013.

     After transfer to the Central Division, a pretrial motion
to suppress evidence was heard by Charles R. Johnson, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Lenk, J., in the Supreme Judicial Court
for the county of Suffolk, and the case was reported by her to
the Appeals Court. The Supreme Judicial Court granted an
application for direct appellate review.


     Helle Sachse, Assistant District Attorney, for the
Commonwealth.

     1
       Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
                                                                      2


     Rebecca A. Jacobstein, Committee for Public Counsel
Services (Aditi Goel, Committee for Public Counsel Services,
with her) for the defendant.


    LENK, J.   On August 17, 2013, at approximately 4:30 P.M.,

Trooper Thomas Hannon of the State police stopped a vehicle

driven by the defendant for failing to stop at a stop sign.     The

vehicle had been rented by the defendant's mother, who has a

last name that is different from the defendant's.     Upon request,

the defendant provided Hannon with a valid driver's license and

the rental agreement.     The agreement listed only the mother as

the renter and stated, "[N]o other drivers permitted."     Hannon

concluded that the defendant was using the vehicle without

authority, in violation of G. L. c. 90, § 24 (2) (a), which

makes it illegal to "use[] a motor vehicle without authority

knowing that such use is unauthorized."     Accordingly, he decided

to impound the vehicle.    During an inventory search in

preparation for impoundment, a loaded handgun and a box of

ammunition were seized from the vehicle.     The Commonwealth

maintains that, upon learning of the seizures, the defendant

made incriminating statements to police.

    This case is before us on the Commonwealth's interlocutory

appeal from a Boston Municipal Court judge's order allowing the

defendant's motion to suppress the handgun, the ammunition, and

statements he made to police.     We conclude that the inventory
                                                                    3


search was unlawful under the circumstances, and therefore

affirm the allowance of the motion to suppress.

    Background and prior proceedings.    The defendant was

arrested on August 17, 2013, and charged with unlawful

possession of a firearm, G. L. c. 269, § 10 (a); unlawful

possession of a loaded firearm, G. L. c. 269, § 10 (n); unlawful

possession of ammunition without a firearm identification card,

G. L. c. 269, § 10 (h); and unauthorized use of a motor vehicle,

G. L. c. 90, § 24 (2) (a).   He also was given a civil citation

for failure to stop at a stop sign, G. L. c. 89, § 9.    At an

evidentiary hearing on May 14, 2014, a judge of the Boston

Municipal Court heard testimony from multiple witnesses,

including Hannon, Trooper John McCarthy of the State police, and

the defendant.

    Hannon testified as follows.    On the day of the seizure, he

was monitoring the flow of traffic at the Heath Street rotary in

the Roxbury section of Boston.   He explained that there had been

several instances of recent violence in the area, including

shootings and gang-related incidents.   When Hannon saw the

defendant's vehicle fail to stop at a stop sign, he stopped the

vehicle on Heath Street in a residential area, where the

defendant provided his driver's license and the rental
                                                                   4


agreement.2   Other than the fact that the defendant's name was

not on the rental agreement, Hannon had no basis to believe that

the vehicle was stolen -- the defendant had a key for the

vehicle, the defendant's license was valid, and the vehicle

appeared to be in good condition.   In addition, there was no

evidence suggesting that the rental period for the vehicle had

expired, or that the vehicle had been reported stolen.    The

defendant did not appear to Hannon to be nervous, never made any

furtive or threatening gestures, and was generally cooperative.

     Hannon did not remember asking the defendant during the

traffic stop whether he knew the person whose name was on the

rental agreement, or if that person had given him permission to

drive the vehicle.   Hannon stated that he did not attempt to

contact the rental car company to determine whether the

defendant was authorized to drive the vehicle, and did not

recall whether a civilian dispatcher had telephoned on his

behalf.   Nonetheless, because the defendant's name was not on

the rental agreement, Hannon informed the defendant that the

vehicle was going to be impounded for unauthorized use.

Although Hannon had not yet decided whether he would place the

defendant under arrest, he placed the defendant in the rear




     2
       Only the first page of the rental agreement is in the
record. The agreement apparently is four pages long.
                                                                     5


passenger seat of his police cruiser, uncuffed, and initiated an

inventory search of the rental vehicle.

     Hannon further testified that he found the handgun in the

center console during that search.   At that point, he informed

the defendant of the Miranda rights and asked whether the

defendant had a license to carry the weapon.   According to

Hannon, the defendant then stated, "No.   I got problems with

some dudes and bought the gun on the street for my protection."

Hannon also said that, at some point during the stop, he learned

from a police dispatcher that there was a default warrant for

the defendant for failing to appear for jury duty.

     McCarthy testified that he arrived at the scene after

hearing a request for assistance on his police radio, and saw

the defendant sitting handcuffed in Hannon's cruiser.3    McCarthy

then found the box of ammunition in the rental vehicle.

McCarthy testified that he told the defendant that he had an

outstanding warrant for failure to appear for jury duty, and

that the defendant told him in response that he had purchased

the firearm to protect himself.

     The defendant, on the other hand, testified that he told

Hannon that his mother had rented the vehicle and had given him

permission to use it.   The defendant also testified that Hannon

     3
       The defendant apparently already had been arrested for
unlawful possession of the loaded handgun by the time McCarthy
arrived.
                                                                       6


had spoken with the defendant's mother on the telephone during

the traffic stop, and that the defendant's mother told the

trooper that the defendant had permission to drive the vehicle.

The defendant denied knowing that there was a firearm in the

vehicle, and stated that he did not recall what he had said to

police during the stop.   The defendant also denied that he had

been informed of the Miranda rights until he was under arrest

and being driven to the State police barracks.    He testified

that he said nothing to police after being informed of those

rights.

    The motion judge allowed the defendant's motion to suppress

in a handwritten, signed order that was dated July 1, 2014.      The

judge wrote,

         "Allowed: Trooper Hannon lawfully stopped [the
    defendant's] vehicle for failure to stop it at a posted
    stop sign as required by law. However, the absence of [the
    defendant's] name on the [rental] agreement without more is
    not sufficient justification under the circumstances
    presented for the arrest of [the defendant] for "[u]se
    without authority" or any of the other consequences which
    befell [the defendant] as a result of the traffic stop by
    [the trooper]. The gun, ammunition and the statements made
    by [the defendant] should be suppressed and not admitted at
    trial."

On July 5, 2014, the motion judge retired, and the case was

assigned to another judge for trial.   The motion judge's

suppression order was entered on July 11, 2014.

    On July 18, 2014, the Commonwealth filed a motion to vacate

the suppression order on the ground that the order was entered
                                                                     7

after the motion judge's retirement.   On August 4, 2014, the

Commonwealth filed an application in the county court for leave

to pursue an interlocutory appeal pursuant to Mass. R. Crim. P.

15 (a) (2), as appearing in 422 Mass. 1501 (1996), and G. L.

c. 278, § 28E.   The following day, the Commonwealth withdrew its

motion to vacate the suppression order.    On September 2, 2014, a

single justice of this court allowed the Commonwealth's

application for leave to pursue an interlocutory appeal in the

Appeals Court.   Thereafter we allowed the defendant's

application for direct appellate review.

    Discussion.    In reviewing an order allowing a motion to

suppress, we consider "the facts found or implicitly credited by

the motion judge, supplemented by additional undisputed facts

where they do not detract from the judge's ultimate findings."

Commonwealth v. Jessup, 471 Mass. 121, 127-128 (2015).    We

accept the judge's subsidiary findings of fact absent clear

error, "but conduct an independent review of [the judge's]

ultimate findings and conclusions of law."    Id. at 129, quoting

Commonwealth v. Scott, 440 Mass. 642, 646 (2004).    "[O]ur duty

is to make an independent determination of the correctness of

the judge's application of constitutional principles to the

facts as found."   Commonwealth v. Mercado, 422 Mass. 367, 369

(1996).
                                                                    8


     The Commonwealth contests the motion judge's conclusion

that the inventory search of the vehicle was unlawful.    Whether

an inventory search is lawful "is contingent on the propriety of

the impoundment of the [vehicle]."   Commonwealth v. Oliveira,

474 Mass. 10, 13 (2016), quoting Commonwealth v. Brinson, 440

Mass. 609, 612 (2003).   The appropriateness of impoundment, in

turn, is guided by a "touchstone of reasonableness."

Commonwealth v. Eddington, 459 Mass. 102, 109 n.12 (2011).4

Where police have probable cause to believe that a vehicle is

being operated illegally, impoundment may be appropriate in some

circumstances even if the driver is not under arrest.    See

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

fact that the defendant was not under arrest is irrelevant to

the propriety of the impoundment because the vehicle at issue

was unregistered, uninsured, and had attached plates belonging

to another vehicle").5   Even so, "an inventory search must not be

a ruse for a general rummaging in order to discover


     4
       The decision to impound a vehicle also must be made in
accordance with standard, written police operating procedures in
order to comply with art. 14 of the Massachusetts Declaration of
Rights. Commonwealth v. Eddington, 459 Mass. 102, 108 n.11
(2011), citing Commonwealth v. Ellerbe, 430 Mass. 769, 773 n.8
(2000).
     5
       See also G. L. c. 90, § 24 (2) (a) ("A summons may be
issued instead of a warrant for arrest upon a complaint for [use
without authority] if in the judgment of the court or justice
receiving the complaint there is reason to believe that the
defendant will appear upon a summons").
                                                                     9


incriminating evidence."   Florida v. Wells, 495 U.S. 1, 4

(1990).   The Commonwealth bears the burden of proving the

propriety of the impoundment.    See Commonwealth v. Craan, 469

Mass. 24, 28 (2014).

     The Commonwealth argues that impoundment was appropriate

here because Hannon had probable cause to believe that the

defendant was using the vehicle without authority, in violation

of G. L. c. 90, § 24 (2) (a).6     In the alternative, the

Commonwealth argues that impoundment otherwise would have been

appropriate based on the default warrant, and that the

defendant's motion to suppress therefore should have been denied

pursuant to the inevitable discovery rule.     We address each

argument in turn.7

     1.   Use without authority.    Although there was conflicting

testimony at the motion hearing regarding the extent to which

Hannon investigated the defendant's authority to drive the

     6
       On appeal, the Commonwealth asserts, and the defendant
does not dispute, that there was probable cause for the initial
traffic stop.
     7
       The Commonwealth additionally seeks a new evidentiary
hearing, arguing that the suppression order at issue is not
valid because it was entered after the motion judge's
retirement. This argument is without basis. See Nessralla v.
Peck, 403 Mass. 757, 761 (1989) (handwritten order signed before
judge's retirement is valid although not issued in final form
until after retirement). In any event, the argument has been
waived; the Commonwealth withdrew its motion in the Boston
Municipal Court to vacate the suppression order on August 5,
2014, the day after it sought leave to pursue an interlocutory
appeal. See Commonwealth v. Cowels, 470 Mass. 607, 617 (2015).
                                                                  10


vehicle at the time of the stop, we infer from the written order

that the judge found that the trooper decided to impound the

vehicle based solely on the absence of the defendant's name on

the rental agreement and the fact that the agreement stated

explicitly that no other drivers were permitted besides the

listed renter.   Given the testimony described above, that

finding was not clearly erroneous.     Accordingly, we consider

whether that information on its own supplied probable cause to

believe that the defendant was using the vehicle without

authority, in violation of G. L. c. 90, § 24 (2) (a).

     a.   Statutory construction.    General Laws c. 90,

§ 24 (2) (a), provides, in relevant part, "whoever uses a motor

vehicle without authority knowing that such use is unauthorized

shall . . . be punished."   The crime comprises at least four

distinct elements:   (1) use; (2) of a motor vehicle; (3) without

authority; (4) knowing that such use is unauthorized.      See

Commonwealth v. Giannino, 371 Mass. 700, 702 (1977).8      The

Commonwealth argues that, in the rental context, the rental

company, not the renter, must provide the requisite authority to



     8
       We also previously have required the Commonwealth to
establish that the use at issue took place "in a public way."
See Commonwealth v. Giannino, 371 Mass. 700, 702 (1977). But
see Commonwealth v. Morris M., 70 Mass. App. Ct. 688, 696 (2007)
(concluding that "public way" is not element of crime of use
without authority).
                                                                   11


use its vehicle if the rental agreement only permits use by

listed drivers.

     This court has not yet considered what constitutes use of a

rental vehicle "without authority" pursuant to G. L. c. 90,

§ 24 (2) (a).9    Looking first to the plain meaning of the

statute, see Commonwealth v. Chamberlin, 473 Mass. 653, 660

(2016), we note that G. L. c. 90, § 24 (2) (a), is silent

regarding the meaning of "authority" or who can provide it.

Accordingly, we interpret the word "authority" in light of its

"usual and accepted meaning[]."    See Commonwealth v. Bell, 442

Mass. 118, 124 (2004), quoting Commonwealth v. Zone Book, Inc.,

372 Mass. 366, 369 (1977).    Recent dictionary definitions for

"authority" include "a power or right delegated or given,"

Webster's New Universal Unabridged Dictionary 139 (2003),

"[p]ower assigned to another," The American Heritage Dictionary

     9
       The Appeals Court has suggested on several occasions that
only a driver authorized under the express terms of a rental
agreement may drive a rental vehicle without violating G. L.
c. 90, § 24 (2) (a). See, e.g., Commonwealth v. Lawson, 79
Mass. App. Ct. 322, 326 n.4 (2011) (assuming in dicta that
"[o]nly the rental company could authorize the defendant to
drive the vehicle"); Commonwealth v. Watts, 74 Mass. App. Ct.
514, 518 (2009) (noting in dicta that police could have
impounded rental vehicle after learning during traffic stop that
driver's rental agreement had expired); Commonwealth v. Henley,
63 Mass. App. Ct. 1, 5-6 (2005) (concluding that police had
probable cause to impound rental vehicle during traffic stop
after learning that driver had expired license, and that neither
driver nor passengers who had valid licenses were authorized
drivers under terms of rental agreement). To the extent that
our holding today may conflict with the Appeals Court's
decisions, those decisions are overruled.
                                                                  12


of the English Language 124 (3d ed. 1996), and "delegated power

over others," Webster's Third New International Dictionary 146

(1993).   Each of these definitions describes a situation in

which someone in possession of a certain power transfers that

power to, or shares it with, another.

     In accordance with these definitions, we previously have

noted that the "authority" described in G. L. c. 90,

§ 24 (2) (a), may be provided either by the owner of a vehicle

or "by one who in law possesses the right of control ordinarily

vested in the owner."   Commonwealth v. Coleman, 252 Mass. 241,

243 (1925).10   Accord Instruction 5.660 of the Criminal Model

Jury Instructions for Use in the District Court (2009).    In

Commonwealth v. Coleman, supra at 242, we affirmed a defendant's

conviction of use without authority under G. L. c. 90, § 24, for

riding in a vehicle that was operated by a driver who did not

have permission to drive it from the owner of the vehicle.

Although the defendant argued that he was unaware that the

driver lacked authority to operate the vehicle, we concluded

that the version of G. L. c. 90, § 24, in effect at the time

subjected users of a vehicle without authority to strict



     10
       Definitions of "authority" at the time were similar to
today's. See Webster's New International Dictionary of the
English Language 155 (1926) (defining "authority" as "[l]egal or
rightful power; a right to command or act; power exercised by a
person in virtue of his office or trust").
                                                                    13


liability.11   See id. at 244.   In so doing, we recognized that a

person lawfully in control of a vehicle may authorize another's

use.    Id. at 243.

       We think it plain that authorization to use a rental

vehicle may be provided by renters as well as by the rental

company in at least some circumstances.     Under standard rental

agreements like the one in this case, the renter, not the rental

company, legally possesses the right of control of the vehicle,

at least during the rental period.     The renter may, for example,

decide when to use the vehicle, where to drive it, and whom to

invite along for the ride.12     Nonetheless, the Commonwealth

argues that a renter's right of control is limited by the terms

of the rental agreement.   In its view, if the rental agreement

prohibits use of the vehicle by those whom the agreement has not

authorized explicitly, knowing use of this sort violates G. L.

c. 90, § 24 (2) (a).    Considering the statute in context, we do

not agree.

       Our understanding of "without authority" in the rental

context is shaped by "the aims and remedies intended to be

       11
       General Laws c. 90, § 24 (2) (a), subsequently was
amended to include a scienter requirement. See St. 1926, c. 253
(inserting phrase "knowing that such use is unauthorized").
       12
       In the tort liability context, we previously have
suggested that a rental company is "unlikely" to retain any
right of control over a renter's operation of a rental vehicle
during the rental period. See Cheek v. Econo-Car Rental Sys. of
Boston, Inc., 393 Mass. 660, 663 (1985).
                                                                  14


advanced by the Legislature . . . as evidenced by other parts of

the statute as well."   Quincy City Hosp. v. Rate Setting Comm'n,

406 Mass. 431, 442 (1990).   The other crimes enumerated in G. L.

c. 90, § 24 (2) (a), aim at two main purposes:   protecting the

public from reckless and negligent drivers, and ensuring that

those who drive unsafely may be held accountable for any damage

they cause.13   See Opinion of the Justices, 250 Mass. 591, 601

(1925) (explaining that statute was enacted "for the particular

protection of travellers upon the highways . . . and to afford

them means of redress in case of injury by enabling them readily

to ascertain the name and address of the owner of an automobile

from which they might suffer injury").   This context indicates

that the criminalization of using a vehicle "without authority"

similarly is aimed at protecting the public from harm caused by




     13
       Crimes addressing the public safety goal include
"operat[ing] a motor vehicle recklessly" in any place where "the
public has a right of access," "operat[ing] such a vehicle
negligently so that the lives or safety of the public might be
endangered," and operating a vehicle "upon a bet or wager or in
a race." G. L. c. 90, § 24 (2) (a). Crimes addressing the
accountability goal include leaving the scene after an accident
"without stopping and making known [one's] name, residence and
the register number of [one's] motor vehicle," "loan[ing] or
knowingly permit[ting] [one's] license or learner's permit to
operate motor vehicles to be used by any person," "mak[ing]
false statements in an application for . . . a license or
learner's permit," and "knowingly mak[ing] any false statement
in an application for registration of a motor vehicle." Id.
                                                                  15


a user of a motor vehicle who is not readily identifiable.14

Punishing a person who uses a vehicle with the permission of

someone who is in lawful possession of the vehicle, such as a

renter, does not advance that purpose, because a user with such

permission readily may be identified by the person with explicit

authority to use the vehicle.

     Furthermore, we previously have described G. L. c. 90,

§ 24 (2) (a), as "a lesser included offense under a charge of

larceny" of a motor vehicle, G. L. c. 266, § 28, because the

     14
       In enacting G. L. c. 90, § 24 (2) (a), the Legislature
apparently assumed that a person who uses a vehicle without
authority is more likely to use it recklessly or negligently
than a person who uses the vehicle with authority. See G. L.
c. 90, § 24F (making persons convicted of use without authority
civilly liable for damage caused to vehicle by their use).
Commentators likewise have suggested that G. L. c. 90,
§ 24 (2) (a), primarily was intended to criminalize unsafe
"joyriding." See Simonian & Tarantino, Common Criminal Motor
Vehicle Offenses in Massachusetts Motor Vehicle Offenses:
Criminal, Civil, and Registry Practice § 3.11 (Mass. Cont. Legal
Educ. 2d ed. Supp. 2016); R.J. Kenney, Jr., T.J. Farris, & P.R.
Keane, Motor Vehicle Law and Practice § 28:50 (4th ed. Supp.
2015). As one commentator has explained,

          "The social problem back of this legislation is well
     known. When the automobile began to appear and was limited
     to the possession of a few of the more fortunate members of
     the community, many persons who ordinarily respected the
     property rights of others, yielded to the temptation to
     drive one of these new contrivances without the consent of
     the owner. This became so common that the term 'joyrider'
     was coined to refer to the person who indulged in such
     unpermitted use of another's car. . . . The chief harm was
     due to the fact that the 'joyrider' was frequently not a
     skillful driver, and sometimes unintentionally damaged the
     car while using it."

R.M. Perkins & R.N. Boyce, Criminal Law 333 (3d ed. 1982).
                                                                   16


crime that is sought to be prevented involves depriving someone

temporarily of the use of a vehicle, not permanently depriving

the owner of that vehicle of his or her ownership.    See

Commonwealth v. Giannino, 371 Mass. 700, 703 (1977).    A person

who has been authorized by the renter listed on the rental

agreement to use the vehicle during the rental period does not

deprive the rental company of any short-term use to which it

otherwise would have been entitled.

    The Commonwealth argues that we should apply the definition

of "authorized driver" under G. L. c. 90, § 32E1/2, which

regulates collision damage waivers in vehicle rental agreements,

in construing the meaning of "authority" under G. L. c. 90,

§ 24 (2) (a).   Under G. L. c. 90, § 32E1/2 (A), an "authorized

driver" is defined to include only "a renter who drives a

private passenger automobile rented under the terms of a rental

agreement or any person expressly listed by the rental company

on the rental agreement as an authorized driver."    Damage or

loss incurred by drivers who are not so "authorized" may be

excluded from the protection of a collision damage waiver.

G. L. c. 90, § 32E1/2 (C) (5) (f).

    By its own terms, however, the definition in G. L. c. 90,

§ 32E1/2 (A), applies only to that provision and to G. L. c. 90,
                                                                    17


§ 32E3/4, neither of which criminalizes unauthorized use.15

While concern about collision damage waiver liability may be one

reason that rental agreements distinguish between authorized and

unauthorized drivers, that question of civil liability in the

event of an accident does not affect our interpretation of use

"without authority" under G. L. c. 90, § 24 (2) (a), a criminal

statute that imposes substantial penalties on those who violate

it.16

        A renter's decision to allow a person who is not a

permitted driver according to the rental agreement to drive a

rental vehicle may be a breach of that agreement, but it does

not also result in a violation of criminal law.17    We are aware


        15
       See G. L. c. 90, § 32E1/2 (A) ("As used in this section
and section 32E3/4 the following words and phrases shall have
the following meanings unless the context requires otherwise").
        16
       A first offense is "punished by a fine of not less than
fifty dollars nor more than five hundred dollars or by
imprisonment for not less than thirty days nor more than two
years, or both." G. L. c. 90, § 24 (2) (a). Second and
subsequent offenses are subject to more extensive fines and
terms of imprisonment. Id.
        17
       Other courts also have taken this view. See State v.
Veniegas, 80 Haw. 75, 79 (Ct. App. 1995), overruled on another
ground by State v. Vallesteros, 84 Haw. 295 (1997) (noting that
use of rental vehicle with permission of renter by person not on
rental agreement did not violate statute criminalizing use
without authority); People v. Johnson, 71 Misc. 2d. 423, 427
(N.Y. Crim. Ct. 1972) (same); State v. Bass, 300 P.3d 1193, 1195
(Okla. Ct. Crim. App. 2013) (same). See also United States v.
McLaughlin, 278 F. Supp. 320, 321 (D.D.C. 1967) ("To hold that
one using a rented car in excess of authority given is subject
to prosecution under the criminal laws . . . would be tantamount
                                                                   18


of only one context in which the Legislature explicitly has

criminalized the violation of a rental agreement:    under G. L.

c. 266, § 87, a renter who "fails or refuses to return [the

rental vehicle] to the owner within ten days after expiration of

the . . . rental agreement" may be subject to criminal

liability.   General Laws c. 90, § 24 (2) (a), however, is not

similarly explicit.   In light of the usual and accepted meaning

of "authority," and the purposes for which G. L. c. 90,

§ 24 (2) (a), apparently was enacted, we conclude that an

individual does not violate G. L. c. 90, § 24 (2) (a), by using

a rental vehicle with the renter's permission when the rental

company also has not authorized that use.18    To hold otherwise

would expose every parking lot attendant who knows he or she is

parking a rental vehicle to potential criminal liability.

     b.   Probable cause.    Based on our construction of G. L.

c. 90, § 24 (2) (a), we conclude that Hannon lacked probable

cause to determine that the defendant was using the rental

vehicle without authority.    "[P]robable cause exists where . . .


to making a person criminally liable for a simple breach of
contract"). But see United States v. Sanford, 806 F.3d 954, 959
(7th Cir. 2015) (suggesting that police may impound vehicle
where driver is not authorized by rental company).
     18
       Contrast Md. Code Ann., Transp. § 18–106(b) (LexisNexis
2012) ("If a person rents a motor vehicle under an agreement not
to permit another person to drive the vehicle no other person
may drive the rented motor vehicle without the consent of the
lessor or his agent"). This statute was repealed in 2014. See
Md. Code Ann., Transp. § 18–106(b) (LexisNexis Supp. 2015).
                                                                  19


the facts and circumstances within the knowledge of the police

are enough to warrant a prudent person in believing that the

individual arrested has committed or was committing an offense."

Commonwealth v. Stewart, 469 Mass. 257, 262 (2014), quoting

Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992).    "The

officers must have entertained rationally 'more than a suspicion

of criminal involvement, something definite and substantial, but

not a prima facie case of the commission of a crime, let alone a

case beyond a reasonable doubt.'"   Commonwealth v. Keefner, 461

Mass. 507, 517 (2012), quoting Commonwealth v. Santaliz, supra.

    On the facts of this case, Hannon's determination that the

defendant violated G. L. c. 90, § 24 (2) (a), was not

reasonable.   Although the absence of the defendant's name on the

rental agreement provided the trooper with a basis to

investigate whether the authorized renter had permitted the

defendant to use the vehicle, that information by itself could

not establish probable cause to conclude that the defendant was

in violation of the statute.   The asserted violation of G. L.

c. 90, § 24 (2) (a), therefore did not provide a sufficient

basis for the officer to impound the vehicle and conduct an

inventory search.   See Maryland v. Pringle, 540 U.S. 366, 370

(2003), quoting Brinegar v. United States, 338 U.S. 160, 176

(1949) ("probable cause protects 'citizens from rash and
                                                                   20


unreasonable interferences with privacy and from unfounded

charges of crime'").

    2.    Inevitable discovery.   The Commonwealth argues in the

alternative that the motion to suppress should have been denied

because the defendant could have been arrested on the default

warrant for failure to appear for jury duty and the vehicle

impounded on that basis, resulting in a lawful inventory search.

"Under the inevitable discovery doctrine, evidence may be

admissible as long as the Commonwealth can demonstrate that

discovery of the evidence by lawful means was certain as a

practical matter, 'the officers did not act in bad faith to

accelerate the discovery of evidence, and the particular

constitutional violation is not so severe as to require

suppression.'"   Commonwealth v. Hernandez, 473 Mass. 379, 386

(2015), quoting Commonwealth v. Sbordone, 424 Mass. 802, 810

(1997).   In addition, the discovery must have been inevitable

under the "circumstances existing at the time of the unlawful

seizure" (citation omitted).   Commonwealth v. Perrot, 407 Mass.

539, 548 (1990).

    Discovery on the basis of the default warrant for failing

to appear for jury duty would have required police both to

execute the warrant and to impound the rental vehicle after that

arrest.   Yet neither trooper testified at the suppression

hearing that they had intended to take these steps at the time
                                                                    21


of the illegal seizure, and the record does not make clear

whether the troopers had even learned of the existence of the

default warrant before the seizure occurred.    Thus, the

Commonwealth has not shown that it is "certain as a practical

matter" that the seized evidence would have been discovered but

for the impoundment of the defendant's vehicle based on

unauthorized use.    See Commonwealth v. Barros, 56 Mass. App. Ct.

675, 679 (2002) (existence of default warrant, without more,

does not make inevitable discovery of evidence certain as a

practical matter).19

     Conclusion.    The impoundment of the rental vehicle was not

proper, because the police did not have probable cause to

believe that the defendant was operating it in violation of

G. L. c. 90, § 24 (2) (a), and it is not certain as a practical

matter that they would have executed the default warrant and

impounded the vehicle on that basis.   Accordingly, the inventory

search was not lawful, and the handgun and ammunition properly

were suppressed.    The defendant's statements in response to the

discovery of those items also properly were suppressed.     See


     19
        Because we conclude that there was not probable cause to
believe that the defendant was operating the rental vehicle
without authority, and that the evidence at issue would not have
been discovered inevitably by other means, we do not reach the
Commonwealth's arguments that the decision to impound the
vehicle complied with the State police department's written
policies. See Commonwealth v. Eddington, 459 Mass. 102, 108-109
(2011).
                                                               22


Commonwealth v. Estabrook, 472 Mass. 852, 864-865 (2015)

(statements made directly in response to unlawful search must be

suppressed).

                                   Order allowing motion
                                     to suppress affirmed.
